As filed with the Securities and Exchange Commission on February 27, 2013
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
INDEPENDENT BANK GROUP, INC.
(Exact name of registrant as specified in its charter)
Texas | 6022 | 13-4219346 | ||
(State or other jurisdiction of incorporation or organization) |
(Primary Standard Industrial
Classification Code Number) |
(I.R.S. Employer Identification Number) |
1600 Redbud Boulevard, Suite 400
McKinney, Texas 75069-3257
(972) 562-9004
(Address, including zip code and telephone number, including area code, of registrants principal executive offices)
Mr. David R. Brooks
Chairman and Chief Executive Officer
1600 Redbud Boulevard, Suite 400
McKinney, Texas 75069-3257
(972) 562-9004
(Name, address, including zip code and telephone number, including area code, of agent for service)
Copies to:
Joseph A. Hoffman, Esq. Dudley W. Murrey, Esq. Andrews Kurth LLP 1717 Main Street, Suite 3700 Dallas, Texas 75201 (214) 659-4400 |
Mark Haynie, Esq. Haynie Rake & Repass, P.C. 14643 Dallas Parkway, Suite 550 Dallas, Texas 75254 (972) 716-1855 |
William T. Luedke IV, Esq. Shanna R. Kuzdzal, Esq. Bracewell & Giuliani LLP 711 Louisiana Street, Suite 2300 Houston, Texas 77002-2770 (713) 223-2300 |
Approximate date of commencement of proposed sale to the public : As soon as practicable after the effective date of this registration statement.
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, please check the following box. ¨
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a nonaccelerated filer, or a smaller reporting company. See the definitions of large accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the Exchange Act.
Large accelerated filer | ¨ | Accelerated filer | ¨ | |||||
Nonaccelerated filer | x (Do not check if a smaller reporting company) | Smaller reporting company | ¨ |
CALCULATION OF REGISTRATION FEE
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Title of Each Class of
Securities to be Registered |
Amount
Registered (1) |
Proposed
Maximum Offering Price per Share |
Proposed
Maximum Aggregate Offering Price (2) |
Amount
of
Registration Fee (2) |
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Common Stock, $0.01 par value per share |
3,680,000 | $25.00 | $92,000,000 | $12,548.80 | ||||
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(1) | Includes 480,000 shares of common stock issuable upon exercise of an option to purchase additional shares granted to the underwriters. |
(2) | Estimated solely for the purpose of calculating the amount of the registration fee in accordance with Rule 457(o) under the Securities Act of 1933, as amended, based upon an estimate of the maximum aggregate offering price. |
The registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the registration statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
The information in this preliminary prospectus is not complete and may be changed. We may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This preliminary prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities in any jurisdiction where the offer or sale is not permitted.
PROSPECTUS | SUBJECT TO COMPLETION, DATED , 2013 |
Shares
Common Stock
This is the initial public offering of shares of the common stock of Independent Bank Group, Inc., the holding company for Independent Bank, a Texas-chartered commercial bank headquartered in McKinney, Texas.
We are offering shares of our common stock. No public market currently exists for our common stock. We have applied to list our common stock on the NASDAQ Global Market under the symbol IBTX.
We anticipate that the initial public offering price per share of our common stock will be between $ and $ .
We are an emerging growth company as defined in the Jumpstart Our Business Startups Act of 2012 and are subject to reduced public company disclosure standards. See ABOUT THIS PROSPECTUS Implications of Being an Emerging Growth Company.
Investing in our common stock involves risks. See RISK FACTORS beginning on page 12 of this prospectus to read about factors you should consider before investing in our common stock.
Per share | Total | |||||||
Initial public offering price of our common stock |
$ | $ | ||||||
Underwriting discounts and commissions (1) |
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Proceeds, before expenses, to us |
(1) | The underwriters have reserved shares for sale in a directed share program at the initial public offering price. We will pay reduced underwriting discounts and commissions in connection with shares sold in the directed share program. The table assumes that none of the shares reserved for sale in the directed share program are sold in the directed share program. If all of the shares reserved for sale in the directed share program are sold in the directed share program, the total underwriting discounts and commissions would be $ and the total proceeds to us, before expenses, would be $ . See UNDERWRITING on page 139 for a description of additional compensation received by the underwriters. |
We have granted the underwriters the option to purchase up to an additional shares of our common stock from us within 30 days of the date of this prospectus on the same terms and conditions set forth above. See UNDERWRITING on page 139.
Neither the Securities and Exchange Commission, any state securities commission, the Federal Deposit Insurance Corporation, the Board of Governors of the Federal Reserve System, the Texas Department of Banking nor any other regulatory authority has approved or disapproved of these securities or passed upon the accuracy or adequacy of this prospectus. Any representation to the contrary is a criminal offense.
These securities are not deposits, savings accounts or other obligations of any bank or savings association and are not insured or guaranteed by the Federal Deposit Insurance Corporation or any other governmental agency and are subject to investment risks, including the possible loss of the entire amount you invest.
The underwriters expect to deliver the shares to purchasers on or about , 2013, subject to customary closing conditions.
S ANDLER ON EILL + P ARTNERS , L. P. |
E VERCORE P ARTNERS |
Keefe, Bruyette & Woods A Stifel Company |
The date of this prospectus is , 2013.
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MANAGEMENTS DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS |
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95 | ||||
108 | ||||
117 | ||||
126 | ||||
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT |
130 | |||
132 | ||||
137 | ||||
139 | ||||
143 | ||||
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143 | ||||
F-1 |
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You should rely only on the information contained in this prospectus or in any free writing prospectus we may authorize to be delivered to you. We and the underwriters have not authorized anyone to provide you with different or additional information. We and the underwriters take no responsibility for, and can provide no assurance as to the reliability of, any different or additional information that others may give you. If anyone provides you with different or inconsistent information, you should not rely on it.
We are offering to sell shares of our common stock, and intend to seek offers to buy shares of our common stock, only in jurisdictions where offers and sales are permitted. The information contained in this prospectus is accurate only as of the date of this prospectus, regardless of the time of the delivery of this prospectus or any sale of our common stock. Our business, financial condition, results of operations and growth prospects may have changed since that date. Information contained on, or accessible through, our website is not part of this prospectus.
This prospectus includes statistical and other industry and market data that we obtained from industry publications, research, surveys and studies written or conducted by third parties. Our internal data, estimates and forecasts are based on information obtained from trade and business organizations and other contacts in the markets in which we operate and our managements understanding of industry conditions. Although we believe that this information (including the industry publications and third party research, surveys and studies) is accurate and reliable, we have not independently verified such information. In addition, estimates, forecasts and assumptions are necessarily subject to a high degree of uncertainty and risk due to a variety of factors, including those described in the RISK FACTORS section and elsewhere in this prospectus.
Unless otherwise indicated or the context requires, all information in this prospectus:
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assumes that the underwriters option to purchase additional shares of our common stock to cover over-allotments is not exercised; |
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assumes an initial offering price of $ per share, which is the mid-point of the estimated public offering price set forth on the cover page of this prospectus; and |
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gives effect to a 3.2-for-one stock split that occurred on February 22, 2013. |
In this prospectus, we, our, us, Independent Bank Group or the Company refers to Independent Bank Group, Inc., a Texas corporation, and our consolidated banking subsidiary, Independent Bank, a Texas state chartered bank, unless the context indicates that we refer only to the parent company, Independent Bank Group, Inc. In this prospectus, Bank refers to Independent Bank.
Subchapter S Corporation Status
Since 2002, we have elected to be taxed for federal income tax purposes as a Subchapter S corporation under the provisions of Sections 1361 through 1379 of the Internal Revenue Code of 1986, as amended. As a result, our net income has not been subject to, and we have not paid, U.S. federal income taxes, and no provision or liability for federal or state income tax has been included in our consolidated financial statements. Unless specifically noted otherwise, any amounts of our consolidated net income or our basic or diluted earnings per share presented in this prospectus, including in our consolidated financial statements and the accompanying notes appearing in this prospectus, do not reflect any provision for or accrual of any expense for federal income tax liability for our Company for any period presented. Upon the consummation of this offering, our status as a Subchapter S corporation will terminate. Thereafter, our net income will be subject to U.S. federal income taxes.
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Implications of Being an Emerging Growth Company
As a company with less than $1.0 billion in revenue during our last fiscal year, we qualify as an emerging growth company as defined in the Jumpstart Our Business Startups Act of 2012, or the JOBS Act. We will continue to be an emerging growth company until the earliest to occur of: (i) the last day of the fiscal year following the fifth anniversary of this offering; (ii) the last day of the fiscal year in which we have more than $1.0 billion in annual revenues; (iii) the date on which we have more than $700 million in market value of our common shares held by nonaffiliates; or (iv) the date on which we issue more than $1.0 billion of nonconvertible debt over a three-year period. Until we cease to be an emerging growth company, we may take advantage of specified reduced reporting and other regulatory requirements generally unavailable to other public companies. Those provisions allow us to present only two years of audited financial statements, discuss only our results of operations for two years in related Managements Discussions and Analyses and provide less than five years of selected financial data in an initial public offering registration statement; to not provide an auditor attestation of our internal control over financial reporting; to choose not to adopt new or revised financial accounting standards until they would apply to private companies; to choose not to comply with any new requirements adopted by the Public Company Accounting Oversight Board requiring mandatory audit firm rotation or a supplement to the auditors report providing additional information about the audit and our audited financial statements; to provide reduced disclosure regarding our executive compensation arrangements pursuant to the rules applicable to smaller reporting companies, which means we do not have to include a compensation discussion and analysis and certain other disclosure regarding our executive compensation; and to not seek a nonbinding advisory vote on executive compensation or golden parachute arrangements.
We have elected to adopt the reduced disclosure requirements described above for purposes of the registration statement of which this prospectus is a part, except for the exemption from the auditor attestation requirement in the assessment of the emerging growth companys internal control over financial reporting. We will provide an auditor attestation as to our internal control over financial reporting because, as a regulated financial institution with assets of over $1.0 billion, we are required to provide an auditor attestation as to our internal control over financial reporting. In addition, we have elected not to opt into the requirement that we comply with any new or revised financial accounting standard at such time as companies required to file periodic reports with the SEC, but that are not emerging growth companies, must comply with such new or revised financial accounting standard. As a result of these elections, the information that we provide in this prospectus may be different from the information you may receive from other public companies in which you hold equity interests. In addition, we expect to take advantage of certain of the reduced reporting and other requirements of the JOBS Act with respect to the periodic reports we will file with the SEC and proxy statements that we use to solicit proxies from our shareholders.
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This summary highlights selected information contained in this prospectus. This summary does not contain all the information that you should consider before investing in our common stock. You should read the entire prospectus carefully, including the RISK FACTORS; CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS and MANAGEMENTS DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS sections, the historical financial statements and the accompanying notes included in this prospectus, as well as the other documents to which we refer you.
Our Company
We are a Texas based bank holding company headquartered in McKinney, Texas, which is located in the northern portion of the Dallas-Fort Worth metropolitan area. Through our wholly owned subsidiary, Independent Bank, a Texas state chartered bank, we provide a wide range of relationship-driven commercial banking products and services tailored to meet the needs of businesses, professionals and individuals. We operate 30 banking offices in 26 communities in two market regions located in the Dallas-Fort Worth metropolitan area and in the greater Austin area. As of December 31, 2012, we had consolidated total assets of approximately $1.7 billion, total loans of approximately $1.4 billion, total deposits of approximately $1.4 billion and total stockholders equity of approximately $124.5 million.
Our History and Growth
While the origins of Independent Bank go back almost 100 years, we began our modern history in 1988 when an investor group led by David Brooks, our Chairman and CEO, and Vincent Viola, our majority shareholder, acquired a small bank in a community north of Dallas. From that first acquisition, we have expanded in the Dallas and Austin areas by growing organically and making strategic acquisitions. Effective January 1, 2009, we merged Independent Bank Group Central Texas (a separate, but affiliated bank holding company operating in Central Texas) into our Company, forming the foundation of our current franchise. From these beginnings and this market base, we have established a record of steady growth and successful operations, while preserving our strong credit culture, as demonstrated by:
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our balance sheet growth, with a compound annual growth rate, or CAGR, of 24.3% in assets, 23.9% in loans, and 24.3% in deposits for the period December 31, 2009 to December 31, 2012; |
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our earnings growth, with a CAGR of 31.4% in net income for the years ended December 31, 2009 to December 31, 2012; and |
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our asset quality, as reflected by a nonperforming assets to total assets ratio of 1.59% and a nonperforming loans to total loans ratio of 0.81% as of December 31, 2012, and a net charge-offs to average loans ratio of 0.06% for the year ended December 31, 2012. |
Our Strategy
We operate our Company based upon the following core strategies, which we designed to enhance shareholder value by growing strategically while preserving asset quality, improving efficiency and increasing profitability:
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Grow Organically. We focus on continued organic growth through our existing footprint and business lines. The Dallas/North Texas and Austin/Central Texas market regions in which we currently operate provide abundant opportunities to grow our customer base and expand our market share. We plan to follow our community-focused, relationship-driven customer strategy to increase loans and deposits through our existing locations. Additionally, we intend to add teams of experienced bankers to grow in our current markets and to expand into new markets. Preserving the safety and soundness of our loan portfolio is a fundamental element of our organic growth strategy. We have a strong and conservative credit culture, which allows us to maintain our asset quality as we grow. |
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Grow Through Acquisitions. We plan to continue to take advantage of opportunities to acquire other banking franchises both within and outside our current footprint. Since mid-2010, we have completed four acquisitions that we believe have enhanced shareholder value and our market presence. The following table summarizes each of the four acquisitions completed since 2010: |
Acquired Institution/Market |
Date of Acquisition |
Fair Value of
Total Assets Acquired |
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(dollars in
thousands) |
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Town Center Bank Dallas/North Texas |
July 31, 2010 | $ | 37,451 | |||
Farmersville Bancshares, Inc. Dallas/North Texas |
September 30, 2010 | $ | 99,420 | |||
I Bank Holding Company, Inc. Austin/Central Texas |
April 1, 2012 | $ | 172,587 | |||
The Community Group, Inc. Dallas/North Texas |
October 1, 2012 | $ | 110,967 |
We believe there will continue to be numerous small to mid-sized banking organizations available for acquisition in our existing market regions and in attractive new markets in Texas, either because of scale and operational challenges, regulatory pressure, management succession issues or shareholder liquidity needs. There are approximately 500 banks in Texas with total assets of less than $1 billion, which affords us future opportunities to make acquisitions that we believe will strengthen our business and increase franchise value over the long term.
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Improve Efficiency and Increase Profitability. We employ a systematic and calculated approach to increasing our profitability and improving our efficiencies. We have updated our operating capabilities and created synergies within the Company in the areas of technology, data processing, compliance and human resources. We believe that our scalable infrastructure provides us with an efficient operating platform from which to grow in the near term without incurring significant incremental noninterest expenses, which will enhance our returns. |
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Our Competitive Strengths
We believe the following competitive strengths support our strategy:
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Experienced Senior Management Team. With a combined 150 years of banking experience, our cohesive senior management team has a long and successful history of managing community banking organizations. We believe that, in addition to our senior executives, we have significant depth in our overall management in areas such as lending, credit administration, finance, operations, and information technology. Our team has a demonstrated track record of managing profitable growth, successfully executing acquisitions, maintaining a strong credit culture, and implementing a relationship-based and community service-focused approach to banking. |
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Well Positioned in Attractive Markets. We have a significant presence in two of the most attractive markets in Texas. The Dallas/North Texas and the Austin/Central Texas areas rank among the fastest growing markets in the nation, a growth that has fueled job creation, commercial development, and housing starts. These economic indicators reflect an expanding economy, both for the entire state and for the regions in which we operate. We have focused our operations in the most economically vibrant portions of these regions, with our headquarters and numerous locations in the growth corridor north of Dallas-Fort Worth and locations in the growing areas of Travis and Williamson Counties in the greater Austin area. We believe our demonstrated ability to operate successfully within these markets will facilitate our continued organic growth as the economies in our markets expand. |
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History of Sustained Profitability. Because we focus on long-term financial performance, we have a history of profitability despite the recent economic headwinds and turmoil in the banking industry. For the years ended December 31, 2009 to December 31, 2012, our net income increased from $7.7 million to $17.4 million, a CAGR of 31.4%. |
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Proven Ability and Demonstrated Success in Acquisition Execution and Integration. As a result of the four acquisitions that we have completed since 2010, which is the second largest number of completed acquisitions by any banking organization in Texas during that period, we have developed an experienced and disciplined acquisition and integration approach capable of identifying candidates, conducting thorough due diligence, determining financial attractiveness, and consummating the acquisition. We have successfully integrated the acquired banks into our existing operational platform and built on the acquired entitys market presence. Our acquisition experience and our reputation as a successful acquiror position us to continue to capitalize on additional opportunities in the future. |
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Strong Credit Culture. Our disciplined implementation of comprehensive policies and procedures for credit underwriting and administration has enabled us to maintain strong asset quality during our growth and the challenges recently posed by the national economy. While loans secured by real estate constitute a significant portion of our loan portfolio, we manage the risk in the portfolio with prudent underwriting and proactive credit administration. We also mitigate the risk in our portfolio by diversifying industry type and the geographic location of our collateral within the State of Texas. |
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Our Market Areas
We are located in Texas, which continues to have a rapidly growing population, a high level of job growth, and an attractive business climate. We operate in two market regions situated in the heart of Texas along the Interstate 35 corridor from Dallas to Austin. The communities we serve are a mix of affluent and growing suburban areas in the Dallas-Fort Worth and Austin metropolitan areas, the New Urbanism areas of Dallas and Austin, the Waco metropolitan area, and smaller rural communities on the outskirts of the Dallas metropolitan area. We believe our presence in a diversified group of communities enables us to match the strengths of each area with needs in other areas, thereby enhancing our overall operations.
Dallas/North Texas Region. The Dallas-Fort Worth metropolitan area is the fourth largest metropolitan area in the nation based upon the 2011 estimate by the U.S. Census Bureau. This metropolitan statistical area, or MSA, serves as the corporate headquarters for numerous Fortune 500 companies, including Exxon Mobil, AT&T, Texas Instruments, Southwest Airlines, and JCPenney. The Dallas-Fort Worth area also contains several world class hospitals and medical research facilities, major universities, and professional sports franchises. We primarily operate in Collin, Dallas, Denton, and Grayson Counties, which are located in the northern growth corridor of the Dallas-Fort Worth metropolitan area.
The following table reflects our position in the Dallas/North Texas region and highlights key demographics of the counties within this region:
County |
Number of
Branches (1) |
Company
Deposits in Market (1)(2) |
Percent of
Franchise Deposits |
Total
Population 2011 |
Projected
Population Change 2011-2016 |
Median
Household Income 2011 |
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Collin |
10 | $ 474,589 | 37.1 | % | 804,469 | 13.99 | % | $ 86,909 | ||||||||||||||||
Grayson |
6 | 276,584 | 21.6 | 121,773 | 3.95 | 40,861 | ||||||||||||||||||
Denton |
3 | 127,785 | 10.0 | 680,782 | 13.26 | 68,023 | ||||||||||||||||||
Dallas |
2 | 18,739 | 2.4 | 2,386,191 | 3.23 | 50,320 | ||||||||||||||||||
Tarrant |
1 | 7,534 | 0.6 | 1,836,199 | 9.01 | 55,312 | ||||||||||||||||||
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County Totals / Weighted Average (3) |
22 | $ 905,231 | 71.7 | % | 5,829,414 | 10.46 | % | $ 68,906 | ||||||||||||||||
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State of Texas |
25,525,763 | 7.76 | 47,753 |
(1) | Gives effect to our acquisition of The Community Group, Inc. completed on October 1, 2012 and the closing of a duplicative branch acquired in that transaction. |
(2) | Deposits as of June 30, 2012. In thousands. |
(3) | Demographics are weighted by the percentage of deposits in each county. |
Source: SNL Financial
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Austin/Central Texas Region . Austin is the capital of Texas, the home to The University of Texas, and is a major national cultural, arts, film, and media center. One of the fastest growing areas in the country, it ranked second nationally in percentage population growth from 2010 to 2011 as estimated by the U.S. Census Bureau. Several public high tech companies maintain their corporate headquarters in the Austin metropolitan area, including Dell, Freescale Semiconductor, and National Instruments Corp. In fact, Austin is often dubbed Silicon Hills because of the number of technology companies that have operations in this area, including Apple, Google, Facebook, IBM and Advanced Micro Devices. Our Central Texas region also includes the city of Waco, which is located equi-distant between Dallas and Austin and is home to Baylor University.
The following table reflects our position in the Austin/Central Texas region and highlights key demographics of the counties within this region:
County |
Number of
Branches |
Company
Deposits in Market (1) |
Percent of
Franchise Deposits |
Total
Population 2011 |
Projected
Population Change 2011-2016 |
Median
Household Income 2011 |
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Travis |
3 | $ 138,995 | 10.9 | % | 1,047,498 | 10.79 | % | $ 56,472 | ||||||||||||||||
Williamson |
2 | 125,105 | 9.8 | 438,456 | 18.18 | 75,174 | ||||||||||||||||||
McLennan |
3 | 99,011 | 7.7 | 236,775 | 4.08 | 38,483 | ||||||||||||||||||
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County Totals / Weighted Average (2) |
8 | $ 363,111 | 28.4 | % | 1,722,729 | 11.51 | % | $ 58,010 | ||||||||||||||||
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State of Texas |
25,525,763 | 7.76 | 47,753 |
(1) | Deposits as of June 30, 2012. In thousands. |
(2) | Demographics are weighted by the percentage of the Companys deposits within each county. |
Source: SNL Financial
Our Corporate Information
Our principal executive offices are located at 1600 Redbud Boulevard, Suite 400, McKinney, Texas 75069-3258, and our telephone number is (972) 562-9004. We maintain an Internet website at www.independent-bank.com . The information contained on or accessible from our website does not constitute a part of this prospectus and is not incorporated by reference herein.
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The following summary of the offering contains basic information about the offering and our common stock and is not intended to be complete. It does not contain all the information that may be important to you. For a more complete understanding of our common stock, please refer to the section of this prospectus entitled DESCRIPTION OF OUR CAPITAL STOCK.
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distribution to our shareholders to provide them with funds to pay federal income taxes on the pro rata share of our taxable income allocated to them for the year to date period in 2013, which we estimate to be approximately $3.0 million.
We have also historically paid dividends out of Company earnings as a return on the shareholders investment. Dividends historically have been declared and paid in the month following the end of each calendar quarter. In the third quarter of 2013, we intend to commence the payment of a $0.06 per share dividend on a quarterly basis to holders of our common stock. |
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Our dividend policy and practice may change in the future, however, and our board of directors may change or eliminate the payment of future dividends at its discretion, without notice to our shareholders. For additional information, see DIVIDEND POLICY on page 33. | ||
Directed Share Program |
The underwriters have reserved for sale at the initial public offering price up to 5% of the common stock being offered by this prospectus for sale to certain of our employees, executive officers, directors, business associates and related persons who have expressed an interest in purchasing our common stock in the offering. We do not know if these persons will choose to purchase all or any portion of these reserved shares, but any purchases they do make will reduce the number of shares available to the general public. Please read UNDERWRITING beginning on page 139. | |
Proposed NASDAQ listing |
We have applied to list our common stock on the NASDAQ Global Market under the symbol IBTX. | |
Risk Factors |
An investment in shares of our common stock involves a high degree of risk. You should carefully read and consider the risks discussed in the RISK FACTORS and CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS sections of this prospectus and all other information in this prospectus before making a decision to invest in shares of our common stock. |
(1) | The number of shares of common stock to be outstanding after this offering is based on 8,269,707 shares outstanding as of January 31, 2013, and excludes: |
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58,560 shares of our common stock granted as restricted stock rights subject to a five-year vesting requirement that ends in 2017; |
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150,544 shares of our common stock, issuable upon exercise of outstanding warrants at an exercise price of $17.19 per share; and |
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800,000 shares of our common stock available for future issuance under the Independent Bank Group, Inc. 2013 Equity Incentive Plan, out of which we plan to grant restricted stock awards of 112,320 shares of our common stock in connection with the consummation of the offering. |
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SELECTED FINANCIAL INFORMATION
The following selected consolidated financial data as of and for the years ended December 31, 2012, 2011 and 2010 have been derived from our audited consolidated financial statements appearing elsewhere in this prospectus, and the selected consolidated financial data as of and for the year ended December 31, 2009 have been derived from our audited consolidated financial statements not appearing in this prospectus.
You should read the following financial data in conjunction with other information contained in this prospectus, including the information set forth under MANAGEMENTS DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS, and the financial statements and related accompanying notes included elsewhere in this prospectus. Our historical results for any prior period are not necessarily indicative of results to be expected in any future period. As described elsewhere in this prospectus, we have consummated several acquisitions in recent fiscal periods. The results and other financial data of these acquired operations are not included in the table below for the periods prior to their respective acquisition dates and, therefore, the results and other financial data for these prior periods are not comparable in all respects and may not be predictive of our future results.
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As of and for
the
Year Ended December 31, |
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2012 | 2011 | 2010 | 2009 | |||||||||||||
(dollars in thousands except per share) | ||||||||||||||||
Selected Income Statement Data |
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Interest income |
$ | 71,890 | $ | 59,639 | $ | 51,734 | $ | 48,747 | ||||||||
Interest expense |
13,337 | 13,358 | 13,669 | 15,721 | ||||||||||||
Net interest income |
58,553 | 46,281 | 38,065 | 33,026 | ||||||||||||
Provision for loan losses |
3,184 | 1,650 | 4,043 | 3,446 | ||||||||||||
Net interest income after provision for loan losses |
55,369 | 44,631 | 34,022 | 29,580 | ||||||||||||
Noninterest income (excluding acquisition gains) |
9,168 | 7,708 | 5,464 | 5,212 | ||||||||||||
Gain on acquisitions |
| | 6,692 | | ||||||||||||
Noninterest expense |
47,160 | 38,639 | 33,062 | 27,136 | ||||||||||||
Net income |
17,377 | 13,700 | 13,116 | 7,656 | ||||||||||||
Pro forma net income (1) (unaudited) |
12,147 | 9,357 | 8,775 | 5,189 | ||||||||||||
Per Share Data (Common Stock) (2) |
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Earnings: |
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Basic |
$ | 2.23 | $ | 2.00 | $ | 1.95 | $ | 1.29 | ||||||||
Diluted (3) |
2.23 | 2.00 | 1.95 | 1.29 | ||||||||||||
Pro forma earnings: (1) (unaudited) |
||||||||||||||||
Basic |
1.56 | 1.37 | 1.31 | 0.87 | ||||||||||||
Diluted (3) |
1.56 | 1.37 | 1.31 | 0.87 | ||||||||||||
Dividends (4) |
1.12 | 0.89 | 0.63 | 0.57 | ||||||||||||
Book value (5) |
15.06 | 12.55 | 11.13 | 9.43 | ||||||||||||
Tangible book value (6) |
11.19 | 10.53 | 9.02 | 7.44 | ||||||||||||
Selected Period End Balance Sheet Data |
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Total assets |
$ | 1,740,060 | $ | 1,254,377 | $ | 1,098,216 | $ | 905,115 | ||||||||
Cash and cash equivalents |
102,290 | 56,654 | 86,346 | 58,089 | ||||||||||||
Securities available for sale |
113,355 | 93,991 | 52,611 | 3,182 | ||||||||||||
Total loans (gross) |
1,378,676 | 988,671 | 860,128 | 724,709 | ||||||||||||
Allowance for loan losses |
11,478 | 9,060 | 8,403 | 6,742 | ||||||||||||
Goodwill and core deposit intangible |
31,965 | 13,886 | 14,453 | 13,136 | ||||||||||||
Other real estate owned |
6,847 | 8,392 | 7,854 | 5,623 | ||||||||||||
Adriatica real estate owned (7) |
9,727 | 16,065 | | | ||||||||||||
Noninterest-bearing deposits |
259,664 | 168,849 | 133,307 | 114,880 | ||||||||||||
Interest-bearing deposits |
1,131,076 | 861,635 | 794,236 | 608,672 | ||||||||||||
Borrowings (other than junior subordinated debentures) |
201,118 | 118,086 | 75,656 | 101,682 | ||||||||||||
Junior subordinated debentures (8) |
18,147 | 14,538 | 14,538 | 14,538 | ||||||||||||
Total stockholders equity (9) |
124,510 | 85,997 | 76,044 | 62,479 | ||||||||||||
Selected Performance Metrics |
||||||||||||||||
Return on average assets (10) |
1.17 | % | 1.16 | % | 1.35 | % | 0.87 | % | ||||||||
Return on average equity (10) |
16.54 | 17.36 | 19.19 | 15.75 | ||||||||||||
Pro forma return on average assets (1)(10) (unaudited) |
0.82 | 0.79 | 0.91 | 0.59 | ||||||||||||
Pro forma return on average equity (1)(10) (unaudited) |
11.56 | 11.86 | 12.84 | 10.68 | ||||||||||||
Net interest margin (11) |
4.40 | 4.42 | 4.43 | 4.29 | ||||||||||||
Efficiency ratio (12) |
69.64 | 71.57 | 75.95 | 70.97 | ||||||||||||
Dividend payout ratio (13) |
11.89 | 13.26 | 13.54 | 20.04 | ||||||||||||
Credit Quality Ratios |
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Nonperforming assets to total assets |
1.59 | % | 2.85 | % | 2.19 | % | 1.92 | % | ||||||||
Nonperforming loans to total loans (14) |
0.81 | 1.14 | 1.89 | 1.62 | ||||||||||||
Allowance for loan losses to nonperforming loans (14) |
104.02 | 80.32 | 51.93 | 57.61 | ||||||||||||
Allowance for loan losses to total loans |
0.83 | 0.92 | 0.98 | 0.93 | ||||||||||||
Net charge-offs to average loans outstanding |
0.06 | 0.11 | 0.31 | 0.21 | ||||||||||||
Capital Ratios |
||||||||||||||||
Tier 1 capital to average assets |
6.45 | % | 6.89 | % | 6.98 | % | 7.22 | % | ||||||||
Tier 1 capital to risk-weighted assets (15) |
8.22 | 8.59 | 8.88 | 8.93 | ||||||||||||
Total capital to risk-weighted assets (15) |
10.51 | 11.19 | 11.10 | 11.24 | ||||||||||||
Total stockholders equity to total assets |
7.16 | 6.86 | 6.92 | 6.90 | ||||||||||||
Tangible common equity to tangible assets (16) |
5.42 | 5.81 | 5.68 | 5.53 |
(footnotes on following page)
9
(1) | We have calculated our pro forma net income, pro forma earnings per share on a basic and diluted basis, pro forma return on average assets and pro forma return on average equity for each year shown by calculating a pro forma provision for federal income taxes using an assumed annual effective federal income tax rate of 30.1%, 31.7%, 33.1% and 32.2% for the years ended December 31, 2012, 2011, 2010 and 2009, respectively, and adjusting our historical net income for each year to give effect to the pro forma provision for federal income taxes for such year. |
(2) | The per share amounts and the weighted-average shares outstanding for each of the years shown have been adjusted to give effect to the 3.2-for-one split of the shares of the Companys common stock that was effective as of February 22, 2013. |
(3) | We calculated our diluted earnings per share for each year shown as our net income divided by the weighted-average number of our common shares outstanding during the relevant year adjusted for the dilutive effect of outstanding warrants to purchase shares of common stock. See Note 1 to our consolidated financial statements appearing elsewhere in this prospectus for more information regarding the dilutive effect of our outstanding warrants. Earnings per share on a basic and diluted basis and pro forma earnings per share on a basic and diluted basis were calculated using the following outstanding share amounts: |
As of December 31, | ||||||||||||||||
2012 | 2011 | 2010 | 2009 | |||||||||||||
Weighted average shares outstanding-basic |
7,626,205 | 6,668,534 | 6,518,224 | 5,667,360 | ||||||||||||
Weighted average shares outstanding-diluted |
7,649,366 | 6,675,078 | 6,518,224 | 5,667,360 |
(4) | Dividends declared include the cash distributions paid to our shareholders in the relevant year to provide them with funds to pay their federal income tax liabilities incurred as a result of the pass-through of our net taxable income for such year to our shareholders as holders of shares in an S corporation for federal income tax purposes. The aggregate amounts of such cash distributions relating to the payment of tax liabilities were $0.92 per share, $0.63 per share, $0.36 per share and $0.30 per share for the years ended December 31, 2012, 2011, 2010 and 2009, respectively. |
(5) | Book value per share equals our total stockholders equity as of the date presented divided by the number of shares of our common stock outstanding as of the date presented. The number of shares of our common stock outstanding as of December 31, 2012, 2011, 2010 and 2009 was 8,269,707 shares, 6,850,288 shares, 6,832,323 shares and 6,628,056 shares, respectively. |
(6) | We calculate tangible book value per share as total stockholders equity less goodwill and other intangible assets divided by the outstanding number of shares of our common stock at the end of the relevant year. Tangible book value is a non-GAAP financial measure, and, as we calculate tangible book value, the most directly comparable GAAP financial measure is total stockholders equity. See our reconciliation of non-GAAP financial measures to their most directly comparable GAAP financial measures under the caption MANAGEMENTS DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS Non-GAAP Financial Measures. |
(7) | See BUSINESS IBG Adriatica for information regarding the real property owned by our subsidiary, IBG Adriatica. |
(8) | Each of five wholly owned, but nonconsolidated, subsidiaries of the Company holds a series of our junior subordinated debentures purchased by the subsidiary in connection with and paid for with the proceeds of the issuance of trust issued preferred securities by that subsidiary. We have guaranteed the payment of the amounts payable under each of those issues of trust preferred securities. |
(9) | We have declared, and plan to declare prior to consummation of the offering, certain dividends subsequent to December 31, 2012, that are discussed under DIVIDEND POLICY on page 33 of this prospectus and in Note 1 on page F-12 to our consolidated financial statements appearing elsewhere in this prospectus. In addition, the pro forma balance sheet in our consolidated financial statements includes the effect of recording a deferred tax asset resulting from the difference between the financial statement carrying amounts of assets and liabilities and their respective tax bases of the Company as a C Corporation rather than an S Corporation. As of December 31, 2012, the Company would have recorded an estimated deferred tax asset of $111,000, which is reflected as an increase in retained earnings of $111,000. As a result of the dividends described above and the recording of the deferred tax asset, the pro forma adjusted amount of total stockholders equity would have been $118.6 million as of December 31, 2012. The pro forma adjusted amount of stockholders equity does not include any earnings subsequent to December 31, 2012. |
(10) | We have calculated our return on average assets and return on average equity for a year by dividing net income for that year by our average assets and average equity, as the case may be, for that year. We have calculated our pro forma return on average assets and pro forma return on average equity for a year by calculating our pro forma net income for that year as described in note 1 above and dividing that by our average assets and average equity, as the case be, for that year. We calculate our average assets and average equity for a year by dividing the sum of our total asset balance or total stockholders equity balance, as the case may be, as of the close of business on each day in the relevant year and dividing by the number of days in the year. |
(footnotes continued on following page)
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(11) | Net interest margin represents net interest income divided by average interest-earning assets. |
(12) | Efficiency ratio represents noninterest expenses divided by the sum of net interest income and noninterest income, excluding bargain purchase gains recognized in connection with certain of our acquisitions and realized gains or losses from sales of investment securities. |
(13) | We calculate our dividend payout ratio for each year presented as the dividends paid per share for such period (excluding cash distributions made to shareholders in connection with tax liabilities as described in note (4) above) divided by our basic earnings per share for such year. |
(14) | Nonperforming loans include nonaccrual loans, loans past due 90 days or more and still accruing interest and accruing loans modified under troubled debt restructurings. |
(15) | We calculate our risk-weighted assets using the standardized method of the Basel II Framework, as implemented by the Federal Reserve and the FDIC. |
(16) | We calculate tangible common equity as total stockholders equity less goodwill and other intangible assets and we calculate tangible assets as total assets less goodwill and other intangible assets. Tangible common equity to tangible assets is a non-GAAP financial measure, and as we calculate tangible common equity to tangible assets, the most directly comparable GAAP financial measure is total stockholders equity to total assets. See our reconciliation of non-GAAP financial measures to their most directly comparable GAAP financial measures under the caption MANAGEMENTS DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS Non-GAAP Financial Measures. |
11
Investing in our common stock involves a high degree of risk. Before you decide to invest in our common stock, you should carefully consider the risks described below, together with all other information included in this prospectus, including our historical financial statements and accompanying notes. We believe the risks described below are the risks that are material to us as of the date of this prospectus. If any of the following risks actually occur, our business, financial condition, results of operations and growth prospects could be materially and adversely affected. In that case, you could experience a partial or complete loss of your investment.
Risks Related to Our Business
Our success depends significantly on our management team, and the loss of our senior executive officers or other key employees and our inability to recruit or retain suitable replacements could adversely affect our business, results of operations and growth prospects.
Our success depends significantly on the continued service and skills of our existing executive management team, particularly David Brooks, our Chairman of the Board and Chief Executive Officer, Torry Berntsen, our Vice Chairman and Chief Operating Officer, Daniel Brooks, our Vice Chairman and Chief Risk Officer, Brian Hobart, our Senior Executive Vice President and Chief Lending Officer, Michelle Hickox, our Executive Vice President and Chief Financial Officer, and Jan Webb, our Executive Vice President and Secretary. The implementation of our business and growth strategies also depends significantly on our ability to retain employees with experience and business relationships within their respective market areas. Our officers may terminate their employment with us at any time, and we could have difficulty replacing such officers with persons who are experienced in the specialized aspects of our business or who have ties to the communities within our market areas. The loss of any of our key personnel could therefore have an adverse impact on our business and growth.
The obligations associated with being a public company will require significant resources and management attention, which will increase our costs of operations and may divert focus from our business operations.
We have not been required in the past to comply with the requirements of the U.S. Securities and Exchange Commission, or SEC, to file periodic reports with the SEC or to have our consolidated financial statements completed, reviewed or audited and filed within a specified time. As a publicly traded company following completion of this offering, we will be required to file periodic reports containing our consolidated financial statements with the SEC within a specified time following the completion of quarterly and annual periods. As a public company, we will also incur significant legal, accounting, insurance and other expenses. Compliance with these reporting requirements and other rules of the SEC and the rules of the NASDAQ will increase our legal and financial compliance costs and make some activities more time consuming and costly. Furthermore, the need to establish the corporate infrastructure demanded of a public company may divert managements attention from implementing our growth strategy, which could prevent us from successfully implementing our strategic initiatives and improving our business, results of operations and financial condition. We have made, and will continue to make, changes to our internal controls and procedures for financial reporting and accounting systems to meet our reporting obligations as a public company. However, we cannot predict or estimate the amount of additional costs we may incur in order to comply with these requirements. We anticipate that these costs will materially increase our general and administrative expenses.
Our business concentration in Texas imposes risks and may magnify the adverse effects and consequences to us resulting from any regional or local economic downturn affecting Texas.
We conduct our operations almost exclusively in Texas as approximately 98% of the loans in our real estate loan portfolio as of December 31, 2012, were secured by properties and collateral located in Texas. Likewise, as of such date, approximately 96% of the loans in our loan portfolio were made to borrowers who live
12
and/or conduct business in Texas. This geographic concentration imposes risks from lack of geographic diversification. The economic conditions in Texas affect our business, financial condition, results of operations, and future prospects, where adverse economic developments, among other things, could affect the volume of loan originations, increase the level of nonperforming assets, increase the rate of foreclosure losses on loans and reduce the value of our loans and loan servicing portfolio. Any regional or local economic downturn that affects Texas or existing or prospective borrowers or property values in such areas may affect us and our profitability more significantly and more adversely than our competitors whose operations are less geographically concentrated.
Our small to medium-sized business customers may have fewer financial resources than larger entities to weather a downturn in the economy, which may impair a borrowers ability to repay a loan, and such impairment could adversely affect our results of operations and financial condition.
We focus our business development and marketing strategy primarily to serve the banking and financial services needs of small to medium-sized businesses. These small to medium-sized businesses generally have fewer financial resources in terms of capital or borrowing capacity than larger entities. If general economic conditions negatively impact the north and central Texas area or the Texas market generally and small to medium-sized businesses are adversely affected, our results of operations and financial condition may be negatively affected.
Our strategy of pursuing acquisitions exposes us to financial, execution and operational risks that could have a material adverse effect on our business, financial condition, results of operations and growth prospects.
We have been pursuing a growth strategy that includes the acquisition of other financial institutions in target markets. We have completed four acquisitions since 2010, and we intend to continue this strategy. Such an acquisition strategy, involves significant risks, including the following:
|
finding suitable markets for expansion; |
|
finding suitable candidates for acquisition; |
|
attracting funding to support additional growth; |
|
maintaining asset quality; |
|
attracting and retaining qualified management; and |
|
maintaining adequate regulatory capital. |
Acquisitions of financial institutions also involve operational risks and uncertainties, and acquired companies may have unknown or contingent liabilities with no available manner of recourse, exposure to unexpected asset quality problems, key employee and customer retention problems and other problems that could negatively affect our organization. We may not be able to complete future acquisitions or, if completed, we may not be able to successfully integrate the operations, management, products and services of the entities that we acquire and eliminate redundancies. The integration process may also require significant time and attention from our management that they would otherwise direct toward servicing existing business and developing new business. Acquisitions typically involve the payment of a premium over book and market values and, therefore, some dilution of our tangible book value and net income per common share may occur in connection with any future transaction. Failure to successfully integrate the entities we acquire into our existing operations may increase our operating costs significantly and adversely affect our business and earnings.
If we do not manage our growth effectively, our business, financial condition, results of operations and future prospects could be negatively affected, and we may not be able to continue to implement our business strategy and successfully conduct our operations.
13
If the goodwill that we recorded in connection with a business acquisition becomes impaired, it could require charges to earnings, which would have a negative impact on our financial condition and results of operations.
Goodwill represents the amount by which the cost of an acquisition exceeded the fair value of net assets we acquired in connection with the purchase of another financial institution. We review goodwill for impairment at least annually, or more frequently if events or changes in circumstances indicate that the carrying value of the asset might be impaired.
We determine impairment by comparing the implied fair value of the reporting unit goodwill with the carrying amount of that goodwill. If the carrying amount of the reporting unit goodwill exceeds the implied fair value of that goodwill, an impairment loss is recognized in an amount equal to that excess. Any such adjustments are reflected in our results of operations in the periods in which they become known. As of December 31, 2012, our goodwill totaled $28.7 million. While we have not recorded any such impairment charges since we initially recorded the goodwill, there can be no assurance that our future evaluations of goodwill will not result in findings of impairment and related write-downs, which may have a material adverse effect on our financial condition and results of operations.
If we do not effectively manage our asset quality and credit risk, we would experience loan losses which could have a material adverse effect on our financial condition and results of operation.
Making any loan involves risk, including risks inherent in dealing with individual borrowers, risks of nonpayment, risks resulting from uncertainties as to the future value of collateral and cash flows available to service debt, and risks resulting from changes in economic and market conditions. Our credit risk approval and monitoring procedures may fail to identify or reduce these credit risks, and they cannot completely eliminate all credit risks related to our loan portfolio. If the overall economic climate in the United States, generally, or our market areas, specifically, experiences material disruption, our borrowers may experience difficulties in repaying their loans, the collateral we hold may decrease in value or become illiquid, and the level of nonperforming loans, charge-offs and delinquencies could rise and require additional provisions for loan losses, which would cause our net income and return on equity to decrease.
Because a significant portion of our loan portfolio is comprised of real estate loans, negative changes in the economy affecting real estate values and liquidity could impair the value of collateral securing our real estate loans and result in loan and other losses.
As of December 31, 2012, approximately 81.9% of our loan portfolio was comprised of loans with real estate as a primary or secondary component of collateral, excluding agricultural loans secured by real estate. As a result, adverse developments affecting real estate values in our market areas could increase the credit risk associated with our real estate loan portfolio. Even though the Texas real estate market has been more stable than real estate markets in other parts of the country, real estate values in many Texas markets have declined in recent years. The market value of real estate can fluctuate significantly in a short period of time as a result of market conditions in the area in which the real estate is located. Adverse changes affecting real estate values and the liquidity of real estate in one or more of our markets could increase the credit risk associated with our loan portfolio, and could result in losses that would adversely affect credit quality, financial condition, and results of operation. Negative changes in the economy affecting real estate values and liquidity in our market areas could significantly impair the value of property pledged as collateral on loans and affect our ability to sell the collateral upon foreclosure without a loss or additional losses. Collateral may have to be sold for less than the outstanding balance of the loan, which could result in losses on such loans. Such declines and losses would have a material adverse impact on our business, results of operations and growth prospects. If real estate values decline, it is also more likely that we would be required to increase our allowance for loan losses, which could adversely affect our financial condition, results of operations and cash flows.
14
Our allowance for loan losses may prove to be insufficient to absorb potential losses in our loan portfolio, which may adversely affect our business, financial condition and results of operations.
We establish our allowance for loan losses and maintain it at a level considered adequate by management to absorb probable loan losses based on our analysis of our portfolio and market environment. The allowance for loan losses represents our estimate of probable losses in the portfolio at each balance sheet date and is based upon relevant information available to us. The allowance contains provisions for probable losses that have been identified relating to specific borrowing relationships, as well as probable losses inherent in the loan portfolio and credit undertakings that are not specifically identified. Additions to the allowance for loan losses, which are charged to earnings through the provision for loan losses, are determined based on a variety of factors, including an analysis of the loan portfolio, historical loss experience and an evaluation of current economic conditions in our market areas. The actual amount of loan losses is affected by changes in economic, operating and other conditions within our markets, as well as changes in the financial condition, cash flows, and operations of our borrowers, all of which are beyond our control, and such losses may exceed current estimates.
As of December 31, 2012, our allowance for loan losses as a percentage of total loans was 0.83% and as a percentage of total nonperforming loans was 104.02%. Additional loan losses will likely occur in the future and may occur at a rate greater than we have previously experienced. We may be required to take additional provisions for loan losses in the future to further supplement the allowance for loan losses, either due to managements decision to do so or requirements by our banking regulators. In addition, bank regulatory agencies will periodically review our allowance for loan losses and the value attributed to nonaccrual loans or to real estate acquired through foreclosure. Such regulatory agencies may require us to recognize future charge-offs. These adjustments may adversely affect our business, financial condition and results of operations.
A lack of liquidity could adversely affect our operations and jeopardize our business, financial condition, and results of operations.
Liquidity is essential to our business. We rely on our ability to generate deposits and effectively manage the repayment and maturity schedules of our loans and investment securities, respectively, to ensure that we have adequate liquidity to fund our operations. An inability to raise funds through deposits, borrowings, the sale of our investment securities, Federal Home Loan Bank advances, the sale of loans, and other sources could have a substantial negative effect on our liquidity. Our most important source of funds consists of deposits. Deposit balances can decrease when customers perceive alternative investments as providing a better risk/return tradeoff. If customers move money out of bank deposits and into other investments, we would lose a relatively low-cost source of funds, increasing our funding costs and reducing our net interest income and net income.
Other primary sources of funds consist of cash flows from operations, investment maturities and sales of investment securities, and proceeds from the issuance and sale of our equity and debt securities to investors. Additional liquidity is provided by the ability to borrow from the Federal Reserve Bank and the Federal Home Loan Bank. We also may borrow funds from third-party lenders, such as other financial institutions. Our access to funding sources in amounts adequate to finance or capitalize our activities, or on terms that are acceptable to us, could be impaired by factors that affect us directly or the financial services industry or economy in general, such as disruptions in the financial markets or negative views and expectations about the prospects for the financial services industry.
Any decline in available funding could adversely impact our ability to originate loans, invest in securities, meet our expenses, pay dividends to our shareholders, or to fulfill obligations such as repaying our borrowings or meeting deposit withdrawal demands, any of which could have a material adverse impact on our liquidity, business, financial condition and results of operations.
15
We may need to raise additional capital in the future, and if we fail to maintain sufficient capital, whether due to losses, an inability to raise additional capital or otherwise, our financial condition, liquidity and results of operations, as well as our ability to maintain regulatory compliance, would be adversely affected.
We face significant capital and other regulatory requirements as a financial institution. We may need to raise additional capital in the future to provide us with sufficient capital resources and liquidity to meet our commitments and business needs, which could include the possibility of financing acquisitions. In addition, the Company, on a consolidated basis, and the Bank, on a stand-alone basis, must meet certain regulatory capital requirements and maintain sufficient liquidity. We face significant capital and other regulatory requirements as a financial institution. Our ability to raise additional capital depends on conditions in the capital markets, economic conditions and a number of other factors, including investor perceptions regarding the banking industry, market conditions and governmental activities, and on our financial condition and performance. Accordingly, we cannot assure you that we will be able to raise additional capital if needed or on terms acceptable to us. If we fail to maintain capital to meet regulatory requirements, our financial condition, liquidity and results of operations would be materially and adversely affected.
Interest rate shifts may reduce net interest income and otherwise negatively impact our financial condition and results of operations.
The majority of our banking assets are monetary in nature and subject to risk from changes in interest rates. Like most financial institutions, our earnings are significantly dependent on our net interest income, the principal component of our earnings, which is the difference between interest earned by us from our interest-earning assets, such as loans and investment securities, and interest paid by us on our interest-bearing liabilities, such as deposits and borrowings. We expect that we will periodically experience gaps in the interest rate sensitivities of our assets and liabilities, meaning that either our interest-bearing liabilities will be more sensitive to changes in market interest rates than our interest-earning assets, or vice versa. In either event, if market interest rates should move contrary to our position, this gap will negatively impact our earnings. The impact on earnings is more adverse when the slope of the yield curve flattens, that is, when short-term interest rates increase more than long-term interest rates or when long-term interest rates decrease more than short-term interest rates. Many factors impact interest rates, including governmental monetary policies, inflation, recession, changes in unemployment, the money supply, and international disorder and instability in domestic and foreign financial markets.
Interest rate increases often result in larger payment requirements for our borrowers, which increases the potential for default. At the same time, the marketability of the property securing a loan may be adversely affected by any reduced demand resulting from higher interest rates. In a declining interest rate environment, there may be an increase in prepayments on loans as borrowers refinance their loans at lower rates.
Changes in interest rates also can affect the value of loans, securities and other assets. An increase in interest rates that adversely affects the ability of borrowers to pay the principal or interest on loans may lead to an increase in nonperforming assets and a reduction of income recognized, which could have a material adverse effect on our results of operations and cash flows. Further, when we place a loan on nonaccrual status, we reverse any accrued but unpaid interest receivable, which decreases interest income. At the same time, we continue to have a cost to fund the loan, which is reflected as interest expense, without any interest income to offset the associated funding expense. Thus, an increase in the amount of nonperforming assets would have an adverse impact on net interest income.
If short-term interest rates remain at their historically low levels for a prolonged period, and assuming longer term interest rates fall further, we could experience net interest margin compression as our interest earning assets would continue to reprice downward while our interest-bearing liability rates could fail to decline in tandem. Such an occurrence would have a material adverse effect on our net interest income and our results of operations.
16
We could recognize losses on securities held in our securities portfolio, particularly if interest rates increase or economic and market conditions deteriorate.
While we attempt to invest a significant percentage of our assets in loans (our loan to deposit ratio was 99.1% as of December 31, 2012), we invest a percentage of our total assets (approximately 6.5% as of December 31, 2012) in investment securities as part of our overall liquidity strategy. As of December 31, 2012, the fair value of our securities portfolio was approximately $113.4 million. Factors beyond our control can significantly influence the fair value of securities in our portfolio and can cause potential adverse changes to the fair value of these securities. For example, fixed-rate securities are generally subject to decreases in market value when interest rates rise. Additional factors include, but are not limited to, rating agency downgrades of the securities, defaults by the issuer or individual borrowers with respect to the underlying securities, and continued instability in the credit markets. Any of the foregoing factors could cause an other-than-temporary impairment in future periods and result in realized losses. The process for determining whether impairment is other-than-temporary usually requires difficult, subjective judgments about the future financial performance of the issuer and any collateral underlying the security in order to assess the probability of receiving all contractual principal and interest payments on the security. Because of changing economic and market conditions affecting interest rates, the financial condition of issuers of the securities and the performance of the underlying collateral, we may recognize realized and/or unrealized losses in future periods, which could have an adverse effect on our financial condition and results of operations.
We face strong competition from financial services companies and other companies that offer banking services, which could harm our business.
We conduct our operations almost exclusively in Texas. Many of our competitors offer the same, or a wider variety of, banking services within our market areas. These competitors include banks with nationwide operations, regional banks and other community banks. We also face competition from many other types of financial institutions, including savings and loan institutions, finance companies, brokerage firms, insurance companies, credit unions, mortgage banks and other financial intermediaries. In addition, a number of out-of-state financial intermediaries have opened production offices, or otherwise solicit deposits, in our market areas. Increased competition in our markets may result in reduced loans and deposits, as well as reduced net interest margin and profitability. Ultimately, we may not be able to compete successfully against current and future competitors. If we are unable to attract and retain banking customers, we may be unable to continue to grow our loan and deposit portfolios, and our business, financial condition and results of operations may be adversely affected.
We have a continuing need for technological change, and we may not have the resources to effectively implement new technology, or we may experience operational challenges when implementing new technology.
The financial services industry is undergoing rapid technological changes with frequent introductions of new technology-driven products and services. In addition to better serving customers, the effective use of technology increases efficiency and enables financial institutions to reduce costs. Our future success will depend in part upon our ability to address the needs of our customers by using technology to provide products and services that will satisfy customer demands for convenience as well as to create additional efficiencies in our operations as we continue to grow and expand our market area. We may experience operational challenges as we implement these new technology enhancements or products, which could result in us not fully realizing the anticipated benefits from such new technology or require us to incur significant costs to remedy any such challenges in a timely manner.
Many of our larger competitors have substantially greater resources to invest in technological improvements. As a result, they may be able to offer additional or superior products to those that we will be able
17
to provide, which would put us at a competitive disadvantage. Accordingly, we may not be able to effectively implement new technology-driven products and services or be successful in marketing such products and services to our customers.
System failure or breaches of our network security could subject us to increased operating costs as well as litigation and other liabilities.
The computer systems and network infrastructure we use could be vulnerable to unforeseen problems. Our operations are dependent upon our ability to protect our computer equipment against damage from physical theft, fire, power loss, telecommunications failure or a similar catastrophic event, as well as from security breaches, denial of service attacks, viruses, worms and other disruptive problems caused by hackers. Any damage or failure that causes breakdowns or disruptions in our customer relationship management, general ledger, deposit, loan and other systems could damage our reputation, result in a loss of customer business, subject us to additional regulatory scrutiny, or expose us to civil litigation and possible financial liability, any of which could have a material adverse effect on us. Computer break-ins, phishing and other disruptions could also jeopardize the security of information stored in and transmitted through our computer systems and network infrastructure, which may result in significant liability to us and may cause existing and potential customers to refrain from doing business with us. In addition, advances in computer capabilities could result in a compromise or breach of the systems we and our third-party service providers use to encrypt and protect customer transaction data. A failure of such security measures could have a material adverse effect on our financial condition and results of operations.
Our operations could be interrupted if our third-party service providers experience difficulty, terminate their services or fail to comply with banking regulations.
We depend on a number of relationships with third-party service providers. Specifically, we receive core systems processing, essential web hosting and other Internet systems, deposit processing and other processing services from third-party service providers. If these third-party service providers experience difficulties, or terminate their services, and we are unable to replace them with other service providers, particularly on a timely basis, our operations could be interrupted. If an interruption were to continue for a significant period of time, our business, financial condition and results of operations could be adversely affected, perhaps materially. Even if we are able to replace third party service providers, it may be at a higher cost to us, which could adversely affect our business, financial condition and results of operations.
We are subject to certain operational risks, including, but not limited to, customer or employee fraud and data processing system failures and errors.
Employee errors and employee and customer misconduct could subject us to financial losses or regulatory sanctions and seriously harm our reputation. Misconduct by our employees could include hiding unauthorized activities from us, improper or unauthorized activities on behalf of our customers or improper use of confidential information. It is not always possible to prevent employee errors and misconduct, and the precautions we take to prevent and detect this activity may not be effective in all cases. Employee errors could also subject us to financial claims for negligence.
We maintain a system of internal controls and insurance coverage to mitigate against operational risks, including data processing system failures and errors and customer or employee fraud. If our internal controls fail to prevent or detect an occurrence, or if any resulting loss is not insured or exceeds applicable insurance limits, it could have a material adverse effect on our business, financial condition and results of operations.
In addition, we rely heavily upon information supplied by third parties, including the information contained in credit applications, property appraisals, title information, equipment pricing and valuation and employment and income documentation, in deciding which loans we will originate, as well as the terms of those
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loans. If any of the information upon which we rely is misrepresented, either fraudulently or inadvertently, and the misrepresentation is not detected prior to asset funding, the value of the asset may be significantly lower than expected, or we may fund a loan that we would not have funded or on terms we would not have extended. Whether a misrepresentation is made by the applicant or another third party, we generally bear the risk of loss associated with the misrepresentation. A loan subject to a material misrepresentation is typically unsellable or subject to repurchase if it is sold prior to detection of the misrepresentation. The sources of the misrepresentations are often difficult to locate, and it is often difficult to recover any of the monetary losses we may suffer.
We could be subject to environmental risks and associated costs on our foreclosed real estate assets, which could materially and adversely affect us.
A significant portion of our loan portfolio is comprised of loans collateralized by real estate. There is a risk that hazardous or toxic waste could be discovered on the properties that secure our loans. If we acquire such properties as a result of foreclosure, we could be held responsible for the cost of cleaning up or removing this waste, and this cost could exceed the value of the underlying properties and materially and adversely affect us.
Our subsidiary, IBG Adriatica, may not be able to dispose of its real estate holdings in a timely manner at prices at least equal to the amount of our investment, which could adversely affect our earnings.
We formed IBG Adriatica as a wholly owned subsidiary in June 2011 to acquire certain loans from an unaffiliated bank. The loans had an aggregate face value of approximately $23.0 million at acquisition and were secured by approximately 27 acres of real property located in the Adriatica Development in McKinney, Texas. The purchase price for the loans was $16.3 million, of which $12.2 million was borrowed by IBG Adriatica from the selling lender and $3.5 million of such loan remained outstanding as of December 31, 2012. The Company has guaranteed this loan. IBG Adriatica subsequently acquired all of the real property securing the loans through a deed in lieu of foreclosure. See Business IBG Adriatica.
IBG Adriatica will not act as a developer of the real property; rather, it plans to sell the real property to real estate developers and end-user businesses and homeowners. If IBG Adriatica is unable to sell the real property at prices sufficient to repay the loan owed to its lender, IBG Adriatica, and the Company as guarantor and on a consolidated basis, could incur a loss. Depending on the amount of the loss, if any, such loss could have a material effect on the Companys consolidated financial condition and adversely effect its business and earnings.
IBG Adriatica has engaged and will engage in transactions with principals of the Company which, because of the inherent conflict of interest, creates a risk that the terms of such transactions may not be favorable to the Company.
IBG Adriatica has sold two parcels of undeveloped real property, an associated interest in the common areas and an option to purchase 32,000 square feet of undeveloped real property in the Adriatica Development to Himalayan Ventures, L.P. Himalayan Ventures is an investment partnership comprised of principals of the Company, including Vincent Viola, our majority shareholder, David Brooks, our Chairman of the Board and CEO, Torry Berntsen, our Vice Chairman and Chief Operating Officer, Dan Brooks, our Vice Chairman and Chief Risk Officer, and Doug Cifu, a director of the Company. The purchase price paid for the property was based on the appraised value and was approved by an independent committee of the Board of Directors of the Company. Banking regulations require that all such transactions be based on the appraised value of the property. While the Company believes that these transactions are consistent with terms that are at least as favorable to the Company as could have been arranged with unrelated third parties, there is inherent risk in these transactions given the conflict of interest arising from the involvement of the Companys principals in Himalayan Ventures.
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Our Chairman and CEO, our majority shareholder, and certain other officers and directors of the Company, are business partners in business ventures in addition to our Company, which creates potential conflicts of interest and corporate governance issues.
Messrs. David Brooks, Viola, Cifu, Berntsen and Dan Brooks are partners in Himalayan Ventures. A dispute between these individuals in connection with this business venture outside of the Company could impact their relationship at the Company and, because of their prominence within the Company, the Company itself.
Risks Related to this Offering and an Investment in our Common Stock
An active trading market for our common stock may not develop, and you may not be able to sell your common stock at or above the initial public offering price.
Prior to this offering there has been no public market for our common stock. An active trading market for shares of our common stock may never develop or be sustained following this offering. If an active trading market does not develop, you may have difficulty selling your shares of common stock at an attractive price, or at all. The initial public offering price for our common stock will be determined by negotiations between us and the representative of the underwriters and may not be indicative of prices that will prevail in the open market following this offering. Consequently, you may not be able to sell your common stock at or above the initial public offering price or at any other price or at the time that you would like to sell. An inactive market may also impair our ability to raise capital by selling our common stock and may impair our ability to expand our business by using our common stock as consideration.
We are dependent upon the Bank for cash flow, and the Banks ability to make cash distributions is restricted.
Our primary tangible asset is the Bank. As such, we depend upon the Bank for cash distributions (through dividends on the Banks stock) that we use to pay our operating expenses, satisfy our obligations (including our senior indebtedness, or subordinated debentures, and our junior subordinated indebtedness issued in connection with trust preferred securities), and to pay dividends on the Companys common stock. There are numerous laws and banking regulations that limit the Banks ability to pay dividends to the Company. If the Bank is unable to pay dividends to the Company, we will not be able to satisfy our obligations or pay dividends on the Company common stock. Federal and state statutes and regulations restrict the Banks ability to make cash distributions to the Company. These statutes and regulations require, among other things, that the Bank maintain certain levels of capital in order to pay a dividend. Further, state and federal banking authorities have the ability to restrict the payment of dividends by supervisory action.
Our dividend policy may change without notice, and our future ability to pay dividends is subject to restrictions.
Although we have historically paid dividends to our shareholders, we have no obligation to continue doing so and may change our dividend policy at any time without notice to our shareholders. Holders of our common stock are entitled to receive only such cash dividends as our board of directors may declare out of funds legally available for such payments. Holders of the Companys common stock are entitled to receive only such dividends as the Companys Board of Directors may declare out of funds legally available for such payments. Any declaration and payment of dividends on common stock will depend upon the Companys earnings and financial condition, liquidity and capital requirements, the general economic and regulatory climate, the Companys ability to service any equity or debt obligations senior to the common stock and other factors deemed relevant by the Board of Directors. Furthermore, consistent with our strategic plans, growth initiatives, capital availability, projected liquidity needs, and other factors, we have made, and will continue to make, capital management decisions and policies that could adversely impact the amount of dividends, if any, paid to our common shareholders.
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The Federal Reserve Board has indicated that bank holding companies should carefully review their dividend policy in relation to the organizations overall asset quality, level of current and prospective earnings and level, composition and quality of capital. The guidance provides that the Company inform and consult with the Federal Reserve Board prior to declaring and paying a dividend that exceeds earnings for the period for which the dividend is being paid or that could result in an adverse change to the Companys capital structure, including interest on the subordinated debentures underlying the Companys trust preferred securities. If required payments on the Companys outstanding junior subordinated debentures, held by its unconsolidated subsidiary trusts, are not made or are suspended, the Company will be prohibited from paying dividends on its common stock. See DIVIDEND POLICY.
Our majority shareholder and Board of Directors have historically controlled, and in the future will continue to be able to control, the Company.
Collectively, Messrs. Vincent Viola and David Brooks own 69.6% of our outstanding common stock on a fully diluted basis. Vincent Viola, the majority shareholder of our Company, currently owns 57.0% of our outstanding common stock, and David Brooks, our Chairman of the Board and CEO, currently owns 12.6% of our common stock, each calculated on a fully diluted basis. Further, our other directors and executive officers currently own collectively approximately 15.6% of our outstanding common stock, and we anticipate that Messrs. Viola and Brooks and these other directors will also purchase additional shares in the offering.
After the offering, we anticipate that Mr. Viola will continue to be our largest single shareholder and that Mr. Viola, Mr. David Brooks, and the other directors and executive officers will collectively own more than 50% of our outstanding common stock. As a result, these individuals will be able to control the election of the Board of Directors and otherwise exert controlling influence in our management and policies. Further, given the large ownership position of these individuals, it will be difficult for any other shareholder to elect members to our Board of Directors or otherwise influence our management or direction of the Company.
In addition, three of our directors have close professional and personal ties to Vincent Viola, our majority shareholder. Doug Cifu is the President and Chief Operating Officer of Virtu Financial, LLC, Mr. Violas primary operating entity; Torry Berntsen, our Vice Chairman and Chief Operating Officer, was formerly Vice Chairman of Virtu Management, LLC, Mr. Violas family investment vehicle; and Michael Viola is the son of Vincent Viola. Further, David Brooks, our Chairman and CEO, has a 24 year history of ownership and operation of the Bank with Vincent Viola; and he has joint investments with Mr. Viola outside of the Company. Given these close relationships, even though he will not serve on our Board, Mr. Viola will continue to have a large influence over the direction and operation of the Company. See MANAGEMENT.
Our corporate organizational documents and the provisions of Texas law to which we are subject contain certain provisions that could have an anti-takeover effect and may delay, make more difficult or prevent an attempted acquisition of the Company that you may favor.
Our certificate of formation and bylaws contain various provisions that could have an anti-takeover effect and may delay, discourage or prevent an attempted acquisition or change of control of the Company. These provisions include:
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staggered terms for directors; |
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a provision that directors cannot be removed except for cause; |
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a provision that any special meeting of our shareholders may be called only by a majority of the board of directors, the Chairman or a holder or group of holders of at least 20% of our shares entitled to vote at the meeting; |
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a provision that requires the vote of two-thirds of the shares outstanding for major corporate actions, such as an amendment to the Companys certificate of formation or bylaws or the approval of a merger; and |
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a provision establishing certain advance notice procedures for nomination of candidates for election as directors and for shareholder proposals to be considered only at an annual or special meeting of shareholders. |
Our certificate of formation provides for noncumulative voting for directors and authorizes the board of directors to issue shares of its preferred stock without shareholder approval and upon such terms as the board of directors may determine. The issuance of our preferred stock, while providing desirable flexibility in connection with possible acquisitions, financings and other corporate purposes, could have the effect of making it more difficult for a third party to acquire, or of discouraging a third party from acquiring, a controlling interest in us. In addition, certain provisions of Texas law, including a provision which restricts certain business combinations between a Texas corporation and certain affiliated shareholders, may delay, discourage or prevent an attempted acquisition or change in control of the Company. We expect that our certificate of formation will be amended prior to consummation of this offering to prohibit shareholder action by written consent. See DESCRIPTION OF OUR CAPITAL STOCK.
Our management will have broad discretion as to the use of proceeds from this offering, and you may not agree with the manner in which we use the proceeds.
While we anticipate using approximately $12.3 million of the offering proceeds to retire all of our senior secured indebtedness and approximately $13.1 million of our subordinated debt, we have not formally designated the amount of net proceeds that we will use for any other particular purpose. Accordingly, our management will have broad discretion as to the application of the net proceeds of this offering and could use them for purposes other than those contemplated at the time of this offering. Our shareholders may not agree with the manner in which our management chooses to allocate and invest the net proceeds. We may not be successful in using the net proceeds from this offering to increase our profitability or market value, and we cannot predict whether the proceeds will be invested to yield a favorable return.
The Company has pledged all of the stock of its principal asset, Independent Bank, as collateral for a loan; and if the lender forecloses, you could lose your investment.
The Company has pledged all of the stock of the Bank to secure approximately $12.3 million in senior indebtedness. Although we anticipate repaying this indebtedness in full with a portion of the offering proceeds, we may elect not to repay this indebtedness. If we do not repay this indebtedness, or if in the future we incur indebtedness and secure it with the stock of Independent Bank, and if we were to default on any such indebtedness, the lender could foreclose on the Bank stock, and we would lose our principal asset. In that event, if the value of the Independent Bank stock is less than the amount of the indebtedness, you would lose the entire amount of your investment.
The holders of our debt obligations and any shares of our preferred stock that may be outstanding in the future will have priority over our common stock with respect to payment in the event of liquidation, dissolution or winding up and with respect to the payment of interest and preferred dividends.
In the event of any liquidation, dissolution or winding up of the Company, our common stock would rank below all claims of debt holders against us. As of the date of this prospectus, we had outstanding $12.3 million of senior secured indebtedness, $20.8 million of subordinated debentures held by investors, and $18.1 million of junior subordinated debentures issued to statutory trusts that, in turn, issued $17.6 million of trust preferred securities. As of the date of this prospectus, there were 10,000,000 shares of our preferred stock authorized, none of which were issued or outstanding. Although we anticipate repaying all of our senior secured indebtedness and approximately $13.1 million of our subordinated debt, we may elect not to repay that indebtedness or we may in the future incur additional indebtedness which would have priority over our common stock in the event of a liquidation.
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Upon the liquidation, dissolution or winding up of the Company, holders of our common stock will not be entitled to receive any payment or other distribution of assets until after all of our obligations to our debt holders have been satisfied and holders of trust preferred securities have received any payment or distribution due to them. In addition, we are required to pay interest on our subordinated debentures and junior subordinated debentures issued in connection with our trust preferred securities before we pay any dividends on our common stock. Furthermore, while we have no shares of preferred stock outstanding, our board of directors may also, in its sole discretion, designate and issue one or more series of preferred stock from our authorized and unissued preferred stock, which may have preferences with respect to common stock in dissolution, dividends, liquidation or otherwise.
Prior to this offering, we were treated as an S-corporation under Subchapter S of the Internal Revenue Code, and claims of taxing authorities related to our prior status as an S-corporation could harm us.
Upon consummation of this offering, our S-corporation status will terminate and we will be treated as a C-corporation under Subchapter C of the Internal Revenue Code of 1986, as amended, which is applicable to most corporations and treats the corporation as an entity that is separate and distinct from its shareholders. If the unaudited, open tax years in which we were an S-corporation are audited by the Internal Revenue Service, and we are determined not to have qualified for, or to have violated, our S-corporation status, we will be obligated to pay back taxes, interest and penalties, and we do not have the right to reclaim tax distributions that we have made to our shareholders during those periods. These amounts could include taxes on all of our taxable income while we were an S-corporation. Any such claims could result in additional costs to us and could have a material adverse effect on our results of operations and financial condition.
We will enter into tax indemnification agreements with our current shareholders, including Messrs. Viola and David Brooks, and could become obligated to make payments to them for any additional federal, state or local income taxes assessed against them for fiscal periods prior to the completion of this offering.
We historically have been treated as an S-corporation for U.S. federal income tax purposes. In connection with this offering, our S-corporation status will terminate and we will thereafter be subject to federal and increased state income taxes. In the event of an adjustment to our reported taxable income for a period or periods prior to termination of our S-corporation status, our existing shareholders could be liable for additional income taxes for those prior periods. Therefore, we will enter into tax indemnification agreements with our existing shareholders prior to or upon consummation of this offering. Pursuant to the tax indemnification agreements, we will agree that upon filing any tax return (amended or otherwise), or in the event of any restatement of our taxable income, in each case for any period during which we were an S-corporation, we will make a payment to each shareholder on a pro rata basis in an amount sufficient so that the shareholder with the highest incremental estimated tax liability (calculated as if the shareholder would be taxable on its allocable share of our taxable income at the highest applicable federal, state and local tax rates and taking into account all amounts we previously distributed in respect of taxes for the relevant period) receives a payment equal to that shareholders incremental tax liability. We will also agree to indemnify the shareholders for any interest, penalties, losses, costs or expenses (including reasonable attorneys fees) arising out of any claim under the agreements.
The price of our common stock could be volatile following this offering and our stock price may fall below the initial public offering price at the time you desire to sell your shares of our common stock, in which case, you would incur a loss on your investment.
The market price of our common stock following this offering may be volatile and could be subject to wide fluctuations in price in response to various factors, some of which are beyond our control. These factors include, among other things:
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actual or anticipated variations in our quarterly and annual results of operations; |
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recommendations or lack thereof by securities analysts; |
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failure to meet market predictions of our earnings; |
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operating and stock price performance of other companies that investors deem comparable to us; |
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news reports relating to trends, concerns and other issues in the financial services industry, including the failures of other financial institutions in the recent economic downturn; |
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perceptions in the marketplace regarding us and/or our competitors; |
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new technology used, or services offered, by competitors; and |
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changes in government regulations. |
In addition, if the market for stocks in our industry, or the stock market in general, experiences a loss of investor confidence, the trading price of our common stock could decline for reasons unrelated to our business, financial condition or results of operations. If any of the foregoing occurs, it could cause our stock price to fall and may expose us to lawsuits that, even if unsuccessful, could be costly to defend and a distraction to management.
If equity research analysts do not publish research or reports about our business, or if they do publish such reports but issue unfavorable commentary or downgrade our common stock, the price and trading volume of our common stock could decline.
The trading market for our common stock could be affected by whether and to what extent equity research analysts publish research or reports about us and our business. We cannot predict at this time whether any research analysts will cover us and our common stock or whether they will publish research and reports on us. If one or more equity analysts cover us and publish research reports about our common stock, the price of our stock could decline if one or more securities analysts downgrade our stock or if those analysts issue other unfavorable commentary or cease publishing reports about us.
If any of the analysts who elect to cover us downgrade their recommendation with respect to our common stock, our stock price could decline rapidly. If any of these analysts ceases coverage of us, we could lose visibility in the market, which in turn could cause our common stock price or trading volume to decline and our common stock to be less liquid.
You will incur immediate dilution as a result of this offering.
If you purchase common stock in this offering, you will pay more for your shares than our existing net tangible book value per share. As a result, you will incur immediate dilution of $ per share, representing the difference between the initial public offering price of $ per share (the mid-point of the range set forth on the cover page of this prospectus) and our adjusted net tangible book value per share after giving effect to this offering. This represents % dilution from the initial public offering price.
Future equity issuances could result in dilution, which could cause our common stock price to decline.
We are generally not restricted from issuing additional shares of our common stock up to the 100 million shares authorized in our certificate of formation. We may issue additional shares of our common stock in the future pursuant to current or future employee stock option plans, upon exercise of warrants or in connection with future acquisitions or financings. If we choose to raise capital by selling shares of our common stock or securities convertible into common stock for any reason, the issuance would have a dilutive effect on the holders of our common stock and could have a material negative effect on the market price of our common stock.
Future sales of our common stock could depress the market price of our common stock.
Sales of a substantial number of shares of our common stock in the public market following this offering, or the perception that large sales could occur, could cause the market price of our common stock to decline or limit our future ability to raise capital through an offering of equity securities.
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After completion of this offering, there will be shares of our common stock outstanding. All of the shares of common stock sold in this offering will be freely tradable without restriction or further registration under the federal securities laws unless purchased by our affiliates within the meaning of Rule 144 under the Securities Act, which shares will be subject to the resale limitations of Rule 144, or shares purchased under the directed share program, which shares will be subject to a 180-day lock-up period. Our directors, executive officers and certain other shareholders have agreed to enter into lock-up agreements (and purchasers of shares of our common stock under the directed share program will agree to restrictions) generally providing, subject to limited exceptions, that they will not, without the prior written consent of Sandler ONeill & Partners, L.P., directly or indirectly, during the period ending 180 days after the date of this prospectus, offer to sell, or otherwise dispose of any shares of our common stock.
Following the completion of this offering, we also intend to file a registration statement on Form S-8 under the Securities Act covering the 800,000 shares of our common stock reserved for issuance under our 2013 Equity Incentive Plan. Accordingly, subject to certain vesting requirements, shares registered under that registration statement will be available for sale in the open market immediately by persons other than our executive officers and directors and immediately after the lock-up agreements expire by our executive officers and directors.
We are an emerging growth company, and we cannot be certain if the reduced disclosure requirements applicable to emerging growth companies will make our common stock less attractive to investors.
We are an emerging growth company, as defined in the JOBS Act, and we intend to take advantage of certain exemptions from various reporting requirements that are applicable to other public companies that are not emerging growth companies, including, but not limited to, reduced disclosure obligations regarding executive compensation in our periodic reports and proxy statements, and exemptions from the requirements of holding a nonbinding advisory vote on executive compensation and shareholder approval of any golden parachute payments not previously approved. In addition, even if we comply with the greater obligations of public companies that are not emerging growth companies immediately after this offering, we may avail ourselves of the reduced requirements applicable to emerging growth companies from time to time in the future, so long as we are an emerging growth company. We will remain an emerging growth company for up to five years, though we may cease to be an emerging growth company earlier under certain circumstances, including if, before the end of such five years, we are deemed to be a large accelerated filer under the rules of the SEC (which depends on, among other things, having a market value of common stock held by nonaffiliates in excess of $700 million). Investors and securities analysts may find it more difficult to evaluate our common stock because we will rely on one or more of these exemptions, and, as a result, investor confidence and the market price of our common stock may be materially and adversely affected.
Further, Section 102(b)(1) of the JOBS Act exempts emerging growth companies from being required to comply with new or revised financial accounting standards until private companies (that is, those that have not had a Securities Act registration statement declared effective or do not have a class of securities registered under the Exchange Act) are required to comply with the new or revised financial accounting standards. The JOBS Act provides that a company can elect to opt out of the extended transition period and comply with the requirements that apply to nonemerging growth companies but any such election to opt out is irrevocable. We have elected not to opt out of such extended transition period which means that when a standard is issued or revised and it has different application dates for public or private companies, we, as an emerging growth company, can adopt the new or revised standard at the time private companies adopt the new or revised standard. This may make our financial statements not comparable with those of another public company which is neither an emerging growth company nor an emerging growth company which has opted out of using the extended transition period because of the potential differences in accounting standards used.
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An investment in our common stock is not an insured deposit and is not guaranteed by the FDIC, so you could lose some or all of your investment.
An investment in our common stock is not a bank deposit and, therefore, is not insured against loss or guaranteed by the FDIC, any other deposit insurance fund or by any other public or private entity. An investment in our common stock is inherently risky for the reasons described herein. As a result, if you acquire our common stock, you could lose some or all of your investment.
Risks Related to the Business Environment and Our Industry
Legislative and regulatory actions taken now or in the future may increase our costs and impact our business, governance structure, financial condition or results of operations.
We and our subsidiaries are subject to extensive regulation by multiple regulatory bodies. These regulations may affect the manner and terms of delivery of our services. If we do not comply with governmental regulations, we may be subject to fines, penalties, lawsuits or material restrictions on our businesses in the jurisdiction where the violation occurred, which may adversely affect our business operations. Changes in these regulations can significantly affect the services that we provide as well as our costs of compliance with such regulations. In addition, adverse publicity and damage to our reputation arising from the failure or perceived failure to comply with legal, regulatory or contractual requirements could affect our ability to attract and retain customers.
Current economic conditions, particularly in the financial markets, have resulted in government regulatory agencies and political bodies placing increased focus and scrutiny on the financial services industry. The Dodd-Frank Wall Street Reform and Consumer Protection Act, or the Dodd-Frank Act, significantly changed the regulation of financial institutions and the financial services industry. The Dodd-Frank Act and the regulations thereunder affect large and small financial institutions alike, including several provisions that will affect how community banks, thrifts and small bank and thrift holding companies will be regulated in the future.
The Dodd-Frank Act, among other things, imposes new capital requirements on bank holding companies; changes the base for FDIC insurance assessments to a banks average consolidated total assets minus average tangible equity, rather than upon its deposit base, and permanently raises the current standard deposit insurance limit to $250,000 and expands the FDICs authority to raise insurance premiums. The legislation also calls for the FDIC to raise the ratio of reserves to deposits from 1.15% to 1.35% for deposit insurance purposes by September 30, 2020 and to offset the effect of increased assessments on insured depository institutions with assets of less than $10.0 billion. The Dodd-Frank Act also limits interchange fees payable on debit card transactions. The Dodd-Frank Act establishes the Bureau of Consumer Financial Protection as an independent entity within the Federal Reserve, which will have broad rulemaking, supervisory and enforcement authority over consumer financial products and services, including deposit products, residential mortgages, home-equity loans and credit cards, and contains provisions on mortgage-related matters, such as steering incentives, determinations as to a borrowers ability to repay and prepayment penalties. The Dodd-Frank Act also includes provisions that affect corporate governance and executive compensation at all publicly traded companies and allows financial institutions to pay interest on business checking accounts.
The Collins Amendment to the Dodd-Frank Act, among other things, eliminates certain trust preferred securities from Tier 1 capital, although certain trust preferred securities issued prior to May 19, 2010 by bank holding companies with total consolidated assets of $15 billion or less will continue to be includable in Tier 1 capital until 2019. This provision also requires the federal banking agencies to establish minimum leverage and risk-based capital requirements that will apply to both insured banks and their holding companies. Our management is reviewing the provisions of the Dodd-Frank Act, many of which are to be phased-in over the next several months and years, and assessing its probable impact on our operations. However, the ultimate effect of the Dodd-Frank Act on the financial services industry in general, and us in particular, is uncertain at this time.
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New proposals for legislation continue to be introduced in the U.S. Congress that could further substantially increase regulation of the financial services industry, impose restrictions on the operations and general ability of firms within the industry to conduct business consistent with historical practices, including in the areas of compensation, interest rates, financial product offerings and disclosures, and have an effect on bankruptcy proceedings with respect to consumer residential real estate mortgages, among other things. Federal and state regulatory agencies also frequently adopt changes to their regulations or change the manner in which existing regulations are applied. Certain aspects of current or proposed regulatory or legislative changes to laws applicable to the financial industry, if enacted or adopted, may impact the profitability of our business activities, require more oversight or change certain of our business practices, including the ability to offer new products, obtain financing, attract deposits, make loans, and achieve satisfactory interest spreads, and could expose us to additional costs, including increased compliance costs. These changes also may require us to invest significant management attention and resources to make any necessary changes to operations in order to comply, and could therefore also materially and adversely affect our business, financial condition and results of operations.
The Group of Governors and Heads of Supervision, the oversight body of the Basel Committee on Banking Supervision, adopted Basel III in September 2010, which is a strengthened set of capital requirements for banking organizations in the United States and around the world. Basel III is currently supported by the U.S. federal banking agencies. While Basel III was originally intended to be fully phased in on a global basis by January 1, 2019, the U.S. federal banking agencies have recently agreed to suspend the implementation of Basel III provisions until further notice. Consequently, the ultimate timing and scope of any U.S. implementation of Basel III remains uncertain.
Such proposals and legislation, if finally adopted, would change banking laws, our operating environment and the operating environment of our subsidiaries in substantial and unpredictable ways. We cannot determine whether such proposals and legislation will be adopted, or the ultimate effect that such proposals and legislation, if enacted, or regulations issued to implement the same, would have upon our business, financial condition or results of operations. Also, in recent years, regulatory oversight and enforcement have increased substantially, imposing additional costs and increasing the potential risks associated with our operations. If these regulatory trends continue, they could adversely affect our business and, in turn, our consolidated results of operations.
Monetary policies and regulations of the Federal Reserve could adversely affect our business, financial condition and results of operations.
In addition to being affected by general economic conditions, our earnings and growth are affected by the policies of the Federal Reserve. An important function of the Federal Reserve is to regulate the money supply and credit conditions. Among the instruments used by the Federal Reserve to implement these objectives are open market operations in U.S. government securities, adjustments of the discount rate and changes in reserve requirements against bank deposits. These instruments are used in varying combinations to influence overall economic growth and the distribution of credit, bank loans, investments and deposits. Their use also affects interest rates charged on loans or paid on deposits.
The monetary policies and regulations of the Federal Reserve have had a significant effect on the operating results of commercial banks in the past and are expected to continue to do so in the future. The effects of such policies upon our business, financial condition and results of operations cannot be predicted.
The Federal Reserve may require us to commit capital resources to support the Bank.
The Federal Reserve, which examines us and the Bank, requires a bank holding company to act as a source of financial and managerial strength to a subsidiary bank and to commit resources to support such subsidiary bank. Under the source of strength doctrine, the Federal Reserve may require a bank holding company to make capital injections into a troubled subsidiary bank and may charge the bank holding company with engaging in unsafe and unsound practices for failure to commit resources to such a subsidiary bank. In addition, the Dodd-Frank Act directs the federal bank regulators to require that all companies that directly or
27
indirectly control an insured depository institution serve as a source of strength for the institution. Under these requirements, in the future, we could be required to provide financial assistance to the Bank if it experiences financial distress.
A capital injection may be required at times when we do not have the resources to provide it, and therefore we may be required to borrow the funds. In the event of a bank holding companys bankruptcy, the bankruptcy trustee will assume any commitment by the holding company to a federal bank regulatory agency to maintain the capital of a subsidiary bank. Moreover, bankruptcy law provides that claims based on any such commitment will be entitled to a priority of payment over the claims of the holding companys general unsecured creditors, including the holders of its note obligations. Thus, any borrowing that must be done by the holding company in order to make the required capital injection becomes more difficult and expensive and will adversely impact the holding companys cash flows, financial condition, results of operations and prospects.
Federal banking agencies periodically conduct examinations of our business, including compliance with laws and regulations, and our failure to comply with any supervisory actions to which we become subject as a result of such examinations could materially and adversely affect us.
Texas and federal banking agencies periodically conduct examinations of our business, including compliance with laws and regulations. If, as a result of an examination, a Texas or federal banking agency were to determine that the financial condition, capital resources, asset quality, earnings prospects, management, liquidity or other aspects of our operations had become unsatisfactory, or that the Company or its management was in violation of any law or regulation, it may take a number of different remedial actions as it deems appropriate. These actions include the power to enjoin unsafe or unsound practices, to require affirmative actions to correct any conditions resulting from any violation or practice, to issue an administrative order that can be judicially enforced, to direct an increase in our capital, to restrict our growth, to assess civil monetary penalties against the Bank, our officers or directors, to remove officers and directors and, if it is concluded that such conditions cannot be corrected or there is an imminent risk of loss to depositors, to terminate our deposit insurance. If we become subject to such regulatory actions, we could be materially and adversely affected.
We may be required to pay significantly higher FDIC deposit insurance assessments in the future, which could materially and adversely affect us.
Recent insured depository institution failures, as well as deterioration in banking and economic conditions generally, have significantly increased the loss provisions of the FDIC, resulting in a decline in the designated reserve ratio of the FDIC to historical lows. The FDIC anticipates that additional insured depository institutions are likely to fail in the foreseeable future so the reserve ratio may continue to decline. In addition, the deposit insurance limit on FDIC deposit insurance coverage generally has increased to $250,000. These developments have caused the FDIC premiums to increase and may result in increased assessments in the future.
On February 7, 2011, the FDIC approved a final rule that amended the Deposit Insurance Fund restoration plan and implemented certain provisions of the Dodd-Frank Act. Effective April 1, 2011, the assessment base is determined using average consolidated total assets minus average tangible equity rather than the previous assessment base of adjusted domestic deposits. The new assessment rates, calculated on the revised assessment base, generally range from 2.5 to 9.0 basis points for Risk Category I institutions, 9.0 to 24.0 basis points for Risk Category II institutions, 8.0 to 33.0 basis points for Risk Category III institutions, and 30.0 to 45.0 basis points for Risk Category IV institutions. The new assessment rates were calculated for the quarter beginning April 1, 2011 and were reflected in invoices for assessments due September 30, 2011.
The final rule provides the FDICs board with the flexibility to adopt actual rates that are higher or lower than the total base assessment rates adopted on February 7, 2011 without notice and comment, if certain conditions are met. An increase in the assessment rates could materially and adversely affect us. Our FDIC insurance related costs decreased to $800,000 for the year ended December 31, 2012, compared with $1.2 million for the year ended December 31, 2011, and $1.0 million for the year ended December 31, 2010.
28
We may be materially and adversely affected by the creditworthiness and liquidity of other financial institutions.
Financial services institutions are interrelated as a result of trading, clearing, counterparty, or other relationships. We have exposure to many different industries and counterparties, and routinely execute transactions with counterparties in the financial services industry, including commercial banks, brokers and dealers, investment banks, and other institutional customers. Many of these transactions expose us to credit risk in the event of a default by a counterparty or customer. In addition, our credit risk may be exacerbated when the collateral held by us cannot be realized upon or is liquidated at prices not sufficient to recover the full amount of the credit or derivative exposure due to us. Any such losses could have a material adverse effect on us.
The recent repeal of federal prohibitions on payment of interest on commercial demand deposits could increase our interest expense, which could have a material adverse effect on us.
All federal prohibitions on the ability of financial institutions to pay interest on commercial demand deposit accounts were repealed as part of the Dodd-Frank Act. As a result, beginning on July 21, 2011, financial institutions were able to offer interest on commercial demand deposits to compete for customers. Our interest expense will increase and our net interest margin could decrease if we begin offering interest on commercial demand deposits to attract additional customers or maintain current customers, which could have a material adverse effect on us.
We face a risk of noncompliance and enforcement action with the Bank Secrecy Act and other anti-money laundering statutes and regulations.
The federal Bank Secrecy Act, the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 and other laws and regulations require financial institutions, among other duties, to institute and maintain effective anti-money laundering programs and file suspicious activity and currency transaction reports as appropriate. The federal Financial Crimes Enforcement Network, established by the Treasury to administer the Bank Secrecy Act, is authorized to impose significant civil money penalties for violations of those requirements and has recently engaged in coordinated enforcement efforts with the individual federal banking regulators, as well as the U.S. Department of Justice, Drug Enforcement Administration and Internal Revenue Service. There is also increased scrutiny of compliance with the rules enforced by the Office of Foreign Assets Control. If our policies, procedures and systems are deemed deficient or the policies, procedures and systems of the financial institutions that we have already acquired or may acquire in the future are deficient, we would be subject to liability, including fines and regulatory actions such as restrictions on our ability to pay dividends and the necessity to obtain regulatory approvals to proceed with certain aspects of our business plan, including our acquisition plans, which would negatively impact our business, financial condition and results of operations. Failure to maintain and implement adequate programs to combat money laundering and terrorist financing could also have serious reputational consequences for us.
There are substantial regulatory limitations on changes of control of bank holding companies.
With certain limited exceptions, federal regulations prohibit a person or company or a group of persons deemed to be acting in concert from, directly or indirectly, acquiring more than 10% (5% if the acquirer is a bank holding company) of any class of our voting stock or obtaining the ability to control in any manner the election of a majority of our directors or otherwise direct the management or policies of our company without prior notice or application to and the approval of the Federal Reserve. Accordingly, prospective investors need to be aware of and comply with these requirements, if applicable, in connection with any purchase of shares of our common stock. These provisions effectively inhibit certain mergers or other business combinations, which, in turn, could adversely affect the market price of our common stock.
29
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
Certain statements contained in this prospectus are forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, or the Securities Act, and Section 21E of the Securities Exchange Act of 1934, or the Exchange Act. These forward-looking statements include statements relating to our projected growth, anticipated future financial performance, financial condition, credit quality and managements long-term performance goals, as well as statements relating to the anticipated effects on our business, financial condition and results of operations from expected developments or events, our business, growth and acquisition strategies. These statements, which are based on certain assumptions and estimates and describe our future plans, results, strategies and expectations, can generally be identified by the use of the words and phrases may, will, should, could, would, goal, plan, potential, estimate, project, believe, intend, anticipate, expect, target, aim, variations of such words and phrases and similar expressions.
We have made the forward-looking statements in the prospectus based on assumptions and estimates that we believe to be reasonable in light of the information available to us at this time. However, these forward-looking statements are subject to significant risks and uncertainties, and could be affected by many factors. Factors that could have a material adverse effect on our business, financial condition, results of operations and future growth prospects can be found in the RISK FACTORS and MANAGEMENTS DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS sections of this prospectus and elsewhere in this prospectus. These factors include, but are not limited to, the following:
|
worsening business and economic conditions nationally, regionally and in our target markets, particularly in Texas and the geographic areas in which we operate; |
|
risks related to the integration of acquired businesses and any future acquisitions, including exposure to potential asset quality and credit quality risks and unknown or contingent liabilities, the time and costs associated with integrating systems, procedures and personnel of the acquired business, the need for additional capital to finance such transactions, and possible failures in realizing the anticipated benefits from acquisitions; |
|
inability to find acquisition candidates that will be accretive to our financial condition and results of operations; |
|
our dependence on our management team and our ability to attract, motivate and retain qualified personnel; |
|
the concentration of our business within our geographic areas of operation in Texas; |
|
deteriorating asset quality and higher loan charge-offs; |
|
concentration of our loan portfolio in commercial and residential real estate loans and changes in the prices, values and sales volumes of commercial and residential real estate; |
|
inaccuracy of the assumptions and estimates we make in establishing reserves for probable loan losses and other estimates; |
|
the quality of the assets acquired from other organizations being lower than determined in our due diligence investigation and related exposure to unrecoverable losses on loans acquired; |
|
changes in the accounting treatment for loans acquired in connection with our acquisitions; |
|
focus of our strategy on small and mid-sized businesses; |
|
time and effort necessary to resolve nonperforming assets; |
|
inaccurate estimates of the construction costs and post-construction values of real estate securing real estate construction loans; |
|
lack of liquidity, including as a result of a reduction in the amount of sources of liquidity we currently have; |
30
|
material decreases in the amount of deposits we hold; |
|
a failure to grow our deposit base as necessary to help fund our growth and expanded operations; |
|
regulatory requirements to maintain minimum capital levels; |
|
an inability to raise necessary capital to fund our acquisition strategy, operations or to meet increased minimum regulatory capital levels; |
|
changes in market interest rates that affect the pricing of our loans and deposits and our net interest income; |
|
fluctuations in the market value and liquidity of the securities we hold for sale; |
|
the expenses that we will incur to operate as a public company; |
|
effects of competition from a wide variety of local, regional, national and other providers of financial, investment and insurance services; |
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changes in economic and market conditions that affect the amount of assets we have under administration; |
|
the institution and outcome of litigation and other legal proceeding against us or to which we become subject; |
|
failure to keep pace with technological change or difficulties when implementing new technologies; |
|
system failures or failures to prevent breaches of our network security; |
|
fraudulent and negligent acts by our customers, employees or vendors; |
|
data processing system failures and errors; |
|
worsening market conditions affecting the financial industry generally; |
|
the impact of recent and future legislative and regulatory changes, including changes in banking, securities and tax laws and regulations and their application by our regulators, such as the Dodd-Frank Act; |
|
governmental monetary and fiscal policies; |
|
changes in the scope and cost of Federal Deposit Insurance Corporation, or FDIC, insurance and other coverages; |
|
the effects of war or other conflicts, acts of terrorism (including cyber attacks) or other catastrophic events, including storms, droughts, tornadoes and flooding, that may affect general economic conditions; and |
|
other factors and risks described under the RISK FACTORS and MANAGEMENTS DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS sections herein. |
Because of these risks and other uncertainties, our actual future results, performance or achievement, or industry results, may be materially different from the anticipated or estimated results discussed in the forward-looking statements in this prospectus. Our past results of operations are not necessarily indicative of our future results. You should not rely on any forward-looking statements, which represent our beliefs, assumptions and estimates only as of the dates on which they were made, as predictions of future events. We undertake no obligation to update these forward-looking statements, even though circumstances may change in the future, except as required under federal securities law. We qualify all of our forward-looking statements by these cautionary statements.
31
We estimate that the net proceeds to us from this offering of shares, after deducting the underwriting discounts and commissions and the estimated offering expenses, will be approximately $ million, or approximately $ million if the underwriters option is exercised in full, based on an assumed initial offering price of $ per share, which is the mid-point of the estimated public offering price range set forth on the cover page of this prospectus. Each $1.00 increase or decrease in the assumed initial public offering price of $ per share would increase or decrease the net proceeds to us from this offering by approximately $ million, or approximately $ million if the underwriters option is exercised in full.
We intend to use the net proceeds primarily to support our long-term growth by enhancing our capital ratios to permit growth initiatives and future strategic acquisitions and for general working capital and other corporate purposes. We have no present agreement or plan concerning any specific acquisition or similar transaction. Our management will retain broad discretion to allocate the net proceeds of this offering. The precise amounts and timing of our use of the proceeds will depend upon market conditions, among other factors. We intend, as a secondary purpose of the offering, to use approximately $25.4 million of the net proceeds to retire some of our indebtedness. We intend to repay in full all $12.3 million of our senior secured indebtedness, including $6.3 million in senior secured indebtedness that we incurred in March 2012 to provide funds to complete our acquisition of I Bank Holding Company. We also intend to repay all of our subordinated debentures that are available for prepayment (excluding junior subordinated debentures issued in connection with trust preferred securities). The following table sets forth the outstanding principal amount, the interest rate, and the maturity date of the indebtedness to be retired.
(dollar amounts in thousands) |
Principal
Amount |
Interest Rate |
Maturity Date | |||||
Senior notes |
$ | 6,000 | 4.00% (Prime if >4.00%) | December 2016 | ||||
Senior notes |
6,250 | 4.50% (Prime if >4.50%) | March 2015 | |||||
Subordinated debentures |
6 |
6.00% (Prime + 2.0% if > 6.0%
or < 9.0%) |
September 2015 | |||||
Subordinated debentures |
3,000 | 4.00% (Prime + 0.50% if >4.00%) | December 2016 | |||||
Subordinated debentures |
4,155 | 7.00% | February 2017 | |||||
Subordinated debentures |
1,216 |
6.00% (Prime + 2.0% if > 6.0%
or < 9.0%) |
September 2017 | |||||
Subordinated debentures |
4,680 | 7.00% | October 2019 |
The $13.1 million in subordinated debentures to be repaid listed above include $4.7 million of subordinated debentures issued in September 2012 to provide funds to complete our acquisition of The Community Group.
32
Dividends
We have historically been an electing small business corporation under Subchapter S of the Internal Revenue Code. Accordingly, we have made distributions to our shareholders to provide them with funds to pay federal income taxes on the pro rata portion of our taxable income that was passed through to them. It has also been our policy to pay a dividend to holders of our common stock as a return on their investment. We have historically declared and paid dividends in the month following the end of each calendar quarter. Our dividend policy and practice will change because we will now be taxed as a C corporation and, therefore, we will no longer pay distributions to provide shareholders with funds to pay federal income taxes on their pro rata portion of our taxable income. As approved by our board of directors, we intend to commence the payment of a $0.06 per share dividend on a quarterly basis to holders of our common stock beginning in the third quarter of 2013.
Our dividend policy may change with respect to the payment of dividends as a return on investment, and our board of directors may change or eliminate the payment of future dividends at its discretion, without notice to our shareholders. Any future determination to pay dividends to holders of our common stock will be dependent upon our results of operations, financial condition, capital requirements, banking regulations, contractual restrictions (including the restrictions discussed below), and any other factors that our board of directors may deem relevant.
The following table shows recent quarterly dividends that have been paid on our common stock with respect to the periods indicated. The per share amounts set forth in the following table have been adjusted to give pro forma effect to our 3.2-for-one stock split that was effective as of February 22, 2013. Accordingly, the per share amounts are presented to the nearest hundredth of a cent.
Quarterly Period |
Amount
Per Share |
Total Cash
Dividend |
||||||
First Quarter 2011 |
$ | 0.2320 | $ | 1,585,312 | ||||
Second Quarter 2011 |
0.1695 | 1,158,292 | ||||||
Third Quarter 2011 |
0.2352 | 1,608,217 | ||||||
Fourth Quarter 2011 |
0.2539 | 1,739,331 | ||||||
First Quarter 2012 |
$ | 0.2039 | $ | 1,396,817 | ||||
Second Quarter 2012 |
0.2433 | 1,907,882 | ||||||
Third Quarter 2012 |
0.2964 | 2,324,029 | ||||||
Fourth Quarter 2012 |
0.3777 | 3,052,149 | ||||||
First Quarter 2013 (through February 27, 2013) |
$ | 0.3664 | $ | 3,030,071 |
Proposed Dividend
Immediately prior to consummation of this offering, we plan to make a final distribution to our shareholders to provide them with funds to pay federal income taxes on the pro rata share of our taxable income allocated to them for the year to date period in 2013, which we estimate to be approximately $3.0 million.
Dividend Restrictions
Under the terms of the credit agreement that we have entered into with the holder of our senior secured indebtedness and our junior subordinated debentures issued in connection with the issuance of trust preferred securities, we are not permitted to pay any dividends on our common stock if we are in default on any payments required to be made on the senior indebtedness or the junior subordinated debentures.
33
As a bank holding company, our ability to pay dividends is affected by the policies and enforcement powers of the Federal Reserve. See REGULATION AND SUPERVISION Independent Bank Group as a Bank Holding Company Regulatory Restrictions on Dividends; Source of Strength. In addition, because we are a holding company, we are dependent upon the payment of dividends by the Bank to us as our principal source of funds to pay dividends in the future, if any, and to make other payments. The Bank is also subject to various legal, regulatory and other restrictions on its ability to pay dividends and make other distributions and payments to us. See REGULATION AND SUPERVISION Regulation of the Bank Restrictions on Distribution of Subsidiary Bank Dividends and Assets.
34
MARKET PRICE OF OUR COMMON STOCK
There has been no public market for our common stock prior to this offering. However, we occasionally become aware of trades and transactions in our common stock and in certain instances the prices at which these trades were executed. Due to the limited information available, the following price information may not accurately reflect the actual market value of the shares. The following data includes trades between individual investors and us and between our shareholders. It does not include restricted stock issued by the Company. The following table sets forth the per share price paid in connection with sales of our common stock for each quarter during 2011 and 2012 and the first quarter of 2013 through the date indicated as adjusted to give pro forma effect to our 3.2-for-one stock split that was effective as of February 22, 2013:
Sales
Price |
Number of
Trades |
Number
of Shares Traded |
||||||||||
First Quarter 2011 |
| | | |||||||||
Second Quarter 2011 |
| | | |||||||||
Third Quarter 2011 |
$ | 19.06 | 2 | 1,862 | ||||||||
Fourth Quarter 2011 |
19.06 | 1 | 320 | |||||||||
First Quarter 2012 (1) |
| | | |||||||||
Second Quarter 2012 |
| | | |||||||||
Third Quarter 2012 (2)(3) |
$ | 31.25 | 6 | 6,630 | ||||||||
Fourth Quarter 2012 (4) |
| | | |||||||||
First Quarter 2013 (through February 27, 2013) |
| | |
(1) | Excludes the sale of 992,000 shares of our common stock to our existing shareholders and accredited investors at a price of $20.31 per share, with such price determined by our Board of Directors. |
(2) | Reflects the purchase of shares by the Company to remain within the S corporation limitation regarding the maximum number of shareholders in anticipation of the acquisition of The Community Group. The price was determined by our Board of Directors. |
(3) | Excludes the sale of 246,160 shares of our common stock by us to our existing shareholders and accredited investors at a price of $20.31 per share to fund a portion of The Community Group acquisition. The price was determined by our Board of Directors, consistent with the negotiated price of the shares issued to the target shareholders in such acquisition. |
(4) | Excludes the issuance of 182,221 shares of our common stock to the shareholders of The Community Group in connection with the acquisition of that entity. The shares issued as merger consideration were valued by the parties at $20.31 per share. |
These figures represent actual transfers or issuances of our common stock reflected on our stock transfer records. Because we may not become aware of all trades of our common stock, the table may not include all trades that occurred during the reported periods. The prices given are the result of limited trading and may not be representative of the actual value of our common stock. In addition, in most instances we do not have actual knowledge of the prices at which the shares were sold and in providing this information have relied in most cases on comments made by a third party without our independent verification.
We anticipate that this offering and the listing of our common stock for trading on the NASDAQ Global Market will result in a more active trading market for our commons stock. However, we cannot assure you that a liquid trading market for our common stock will develop or be sustained after this offering. You may not be able to sell your shares quickly or at the market price if trading in our common stock is not active. The initial public offering price for our shares will be determined by negotiations between us and the underwriters. See UNDERWRITING Offering Price Determination for more information regarding our arrangements with the underwriters and the factors to be considered in setting the initial public offering price.
35
The following table sets forth our capitalization and regulatory capital ratios as of December 31, 2012:
|
on an actual basis; and |
|
on an as adjusted basis after giving effect to (i) the receipt of the net proceeds to us from the sale in this offering of shares of our common stock at an assumed initial public offering price of $ per share, which is the mid-point of the estimated public offering price set forth on the cover page of this prospectus, after deducting the underwriting discounts and commissions and the estimated offering expenses payable by us, and not assuming the sale of any shares of common stock upon the exercise of the underwriters option to purchase additional shares; (ii) the application of the net proceeds of the offer and sale of such shares, estimated to be $ million based on the mid-point of the estimated public offering price set for on the cover page of this prospectus, to the repayment of $ million of notes payable and other borrowings due within one year and $ million of the long-term portion of notes payable and other borrowings; (iii) the reclassification of undistributed S corporation earnings of $ from retained earnings to additional paid-in capital as a result of our conversion to a C corporation in connection with this offering; and (iv) our 3.2-for-one stock split that was effective as of February 22, 2013. |
The following should be read in conjunction with USE OF PROCEEDS, MANAGEMENTS DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS, SELECTED HISTORICAL CONSOLIDATED FINANCIAL INFORMATION AND OTHER DATA and our consolidated financial statements and accompanying notes that are included elsewhere in this prospectus.
As of December 31, 2012 | ||||||||
(dollars in thousands, except share amounts and per share data) | Actual | As Adjusted | ||||||
Long-term liabilities (1)(2) |
||||||||
FHLB advances |
$ | 164,601 | $ | |||||
Notes payable and other borrowings |
36,517 | |||||||
Junior subordinated debentures |
18,147 | |||||||
|
|
|
|
|||||
Total long-term liabilities |
219,265 | |||||||
|
|
|
|
|||||
Stockholders equity |
||||||||
Preferred stock, $0.01 par value; 10 million shares authorized; none issued or outstanding |
||||||||
Common stock, $0.01 par value; 100 million shares authorized and 8,278,354 (actual) and (as adjusted) shares issued (3) |
83 | |||||||
Additional paid-in capital |
88,791 | |||||||
Retained earnings |
33,290 | |||||||
Treasury stock, at cost (8,647 shares) |
(232 | ) | ||||||
Accumulated other comprehensive income |
2,578 | |||||||
|
|
|
|
|||||
Total stockholders equity |
124,510 | |||||||
|
|
|
|
|||||
Total capitalization (4) |
$ | 343,775 | $ | |||||
|
|
|
|
|||||
Capital Ratios (5) |
||||||||
Tier 1 capital to average assets |
6.45 | % | % | |||||
Tier 1 capital to risk-weighted assets (6) |
8.22 | |||||||
Total capital to risk-weighted assets (6) |
10.51 | |||||||
Total stockholders equity to total assets |
7.16 | |||||||
Tangible common equity to tangible assets (7) |
5.42 | |||||||
Per Share Data |
||||||||
Book value (8) |
$ | 15.06 | $ | |||||
Tangible book value (9) |
11.19 |
(1) | Excludes all deposit liabilities. |
36
(2) | See notes 11, 12 and 13 to our consolidated financial statements appearing elsewhere in this prospectus for additional information regarding our FHLB advances, notes payable, other borrowings and junior subordinated debentures. |
(3) | The number of as adjusted shares of common stock issued and outstanding assumes the issuance of shares of our common stock upon the consummation of this offering. The actual and as adjusted numbers of shares of common stock issued and outstanding excludes: (a) 150,544 shares of our common stock issuable upon exercise of outstanding warrants, (b) 58,560 shares issuable upon the vesting of restricted stock rights outstanding and (c) the 112,320 shares of restricted stock that we expect to issue under our 2013 Equity Incentive Plan in connection with the consummation of this offering. |
(4) | Total capitalization includes the amount of debt that is included as capital for regulatory purposes. |
(5) | The aggregate of $ million of the net proceeds from the sale of our common stock in this offering expected to be remaining after the anticipated repayment of $ million of our notes payable and $ million of our subordinated debentures is presumed to be invested in securities which carry a % risk weighting for purposes of all adjusted risk-based capital ratios. If the underwriters exercise their option to purchase additional shares in full, the net proceeds of this offering would be $ million and our Tier 1 leverage ratio, Tier 1 capital to risk-weighted assets, total capital to risk-weighted assets, tangible common equity to tangible assets and Tier 1 common capital to risk-weighted assets ratios would have been %, %, %, % and % respectively. |
(6) | We calculate our risk-weighted assets using the standardized method of the Basel II Framework, as implemented by the Federal Reserve and the FDIC. |
(7) | We calculate tangible common equity as total stockholders equity less goodwill and other intangible assets and we calculate tangible assets as total assets less goodwill and other intangible assets. Tangible common equity to tangible assets is a non-GAAP financial measure, and as we calculate tangible common equity to tangible assets, the most directly comparable GAAP financial measure is total stockholders equity to total assets. See our reconciliation of non-GAAP financial measures to their most directly comparable GAAP financial measures under the caption MANAGEMENTS DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS Non-GAAP Financial Measures below. |
(8) | Book value per share as of December 31, 2012 equals our total stockholders equity as of that date divided by the 8,269,707 shares of our common stock outstanding at that date. |
(9) | We calculate tangible book value per share as total stockholders equity less goodwill and other intangible assets divided by the outstanding number of shares of our common stock at the end of the relevant period. Tangible book value is a non-GAAP financial measure, and, as we calculate tangible book value, the most directly comparable GAAP financial measure is total stockholders equity. See our reconciliation of non-GAAP financial measures to their most directly comparable GAAP financial measures under the caption MANAGEMENTS DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS Non-GAAP Financial Measures below. |
37
If you invest in our common stock, your ownership interest will be diluted to the extent of the difference between the initial public offering price per share of our common stock and the as adjusted net tangible book value per share of our common stock immediately after this offering. Our historical net tangible book value as of December 31, 2012, was $ million, or $ per share of common stock. Net tangible book value per share is determined by dividing our total tangible assets less our total liabilities by the number of shares of common stock outstanding.
After giving effect to our sale of shares of common stock at an assumed initial public offering price of $ per share in this offering, which is the mid-point of the range on the cover of this prospectus, and after deducting the underwriting discounts and commissions and the estimated offering expenses, our as adjusted net tangible book value as of December 31, 2012, would have been $ million, or $ per share. This amount represents an immediate increase in net tangible book value to our existing shareholders of $ per share and immediate dilution to new investors of $ per share. The following table illustrates this per share dilution:
Assumed initial public price per share |
$ | |||||
Historical net tangible book value per share as of December 31, 2012 |
||||||
|
|
|||||
Increase in net tangible book value per share attributable to investors purchasing shares in this offering |
||||||
|
||||||
As adjusted net tangible book value per share after giving effect to this offering |
||||||
|
|
|||||
Dilution per share to investors in this offering |
$ | |||||
|
|
Each $1.00 increase or decrease in the assumed public offering price of $ per share would increase or decrease, respectively, our as adjusted net tangible book value by approximately $ million, or approximately $ per share, and the dilution per share to investors in this offering by approximately $ per share, assuming that the number of shares offered by us, as set forth on the cover page of this prospectus, remains the same and after deducting estimated underwriting discounts and commissions and offering expenses. We may also increase or decrease the number of shares we are offering. An increase of 1.0 million in the number of shares offered by us, together with a $1.00 increase in the assumed offering price of $ per share, would result in as adjusted net tangible book value of approximately $ million, or $ per share, and the dilution per share to investors in this offering would be $ per share. Similarly, a decrease of 1.0 million in the number of shares offered by us, together with a $1.00 decrease in the assumed public offering price of $ per share, would result in as adjusted net tangible book value of approximately $ million, or $ per share, and the dilution per share to investors in this offering would be $ per share. The as adjusted information discussed above is illustrative only and will adjust based on the actual public offering price and other terms of this offering determined at pricing.
If the underwriters exercise their option to purchase additional shares in full in this offering, our as adjusted net tangible book value as of December 31, 2012, would be $ million, or $ per share, representing an immediate increase in as adjusted net tangible book value to our existing shareholders of $ per share and immediate dilution to investors participating in this offering of $ per share.
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The following table summarizes as of December 31, 2012, on an as adjusted basis, the number of shares of common stock purchased from us, the total consideration paid to us and the average price per share paid by our existing shareholders and by investors participating in this offering, based upon an assumed initial public offering price of $ per share, the mid-point of the range on the cover of this prospectus, and before deducting estimated underwriting discounts and commissions and offering expenses payable by us.
Shares Purchased | Total Consideration |
Avg. Price
Per Share |
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Existing shareholders |
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New investors |
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The above discussion and tables do not take into account 150,544 shares of our common stock issuable upon exercise of outstanding warrants or 58,560 shares issuable upon the vesting of restricted stock rights outstanding. Furthermore, effective upon the completion of this offering, an aggregate 800,000 shares of our common stock will be reserved for future issuance under our 2013 Equity Incentive Plan, of which we expect to issue 112,320 shares of restricted stock in connection with the consummation of this offering. To the extent that any equity awards are issued under our equity incentive plan or we issue additional shares of common stock in the future, there will be further dilution to investors.
We estimate that, on a pro forma basis, giving effect to the exercise of the warrants to acquire shares of our common stock, our net tangible book value per share as of December 31, 2012, would have been $ instead of $ .
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Overview
Our Company. We are a Texas based bank holding company headquartered in McKinney, Texas, which is located in the northern portion of the Dallas-Fort Worth metropolitan area. Through our wholly owned subsidiary, Independent Bank, a Texas state chartered bank, we provide a wide range of relationship-driven commercial banking products and services tailored to meet the needs of businesses, professionals and individuals. We operate 30 banking offices in 26 communities in two market regions centered in the Dallas-Fort Worth metropolitan area and in the greater Austin area. As of December 31, 2012, we had consolidated total assets of approximately $1.7 billion, total loans of approximately $1.4 billion, total deposits of approximately $1.4 billion and total stockholders equity of approximately $124.5 million.
Our History and Growth. While the origins of Independent Bank go back almost 100 years, we began our modern history in 1988 when an investor group led by David Brooks, our Chairman and CEO, and Vincent Viola, our majority shareholder, acquired a small bank in a community north of Dallas. From that first acquisition, we have expanded in the Dallas and Austin areas by growing organically and making strategic acquisitions. Effective January 1, 2009, we merged Independent Bank Group Central Texas (a separate, but affiliated bank holding company operating in Central Texas) into our Company, forming the foundation of our current franchise. From these beginnings and this market base, we have established a record of steady growth and successful operations, while preserving our strong credit culture, as demonstrated by:
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our balance sheet growth, with a compound annual growth rate, or CAGR, of 24.3% in assets, 23.9% in loans, and 24.3% in deposits for the period December 31, 2009 to December 31, 2012; |
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our earnings growth, with a CAGR of 31.4% in net income for the years ended December 31, 2009 to December 31, 2012; and |
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our asset quality, as reflected by a nonperforming assets to total assets ratio of 1.59% and a nonperforming loans to total loans ratio of 0.81% as of December 31, 2012, and a net charge-offs to average loans ratio of 0.06% for the year ended December 31, 2012. |
Our Strategy
We operate our Company based upon the following core strategies, which we designed to enhance shareholder value by growing strategically while preserving asset quality, improving efficiency and increasing profitability:
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Grow Organically. We focus on continued organic growth through our existing footprint and business lines. The Dallas/North Texas and Austin/Central Texas market regions in which we currently operate provide abundant opportunities to grow our customer base and expand our current market share. We plan to follow our community-focused, relationship-driven customer strategy to increase loans and deposits through our existing locations. Additionally, we intend to add teams of experienced bankers to grow in our current markets and expand into new markets. Preserving the safety and soundness of our loan portfolio is a fundamental element of our organic growth strategy. We have a strong and conservative credit culture, which allows us to maintain our asset quality as we grow. |
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Grow Through Acquisitions. We plan to continue to take advantage of opportunities to acquire other banking franchises both within and outside our current footprint. Since mid-2010, we have completed four acquisitions that we believe have enhanced shareholder value and our market presence. The following table summarizes each of the four acquisitions completed since 2010: |
Acquired Institution/Market |
Date of Acquisition |
Fair Value of
Total Assets Acquired |
||||
(dollars in
thousands) |
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Town Center Bank Dallas/North Texas |
July 31, 2010 | $ | 37,451 | |||
Farmersville Bancshares, Inc. Dallas/North Texas |
September 30, 2010 | $ | 99,420 | |||
I Bank Holding Company, Inc. Austin/Central Texas |
April 1, 2012 | $ | 172,587 | |||
The Community Group, Inc. Dallas/North Texas |
October 1, 2012 | $ | 110,967 |
We believe there will continue to be numerous small to mid-sized banking organizations available for acquisition in our existing market regions and in attractive new markets in Texas, as a result of scale and operational challenges, regulatory pressure, management succession issues or shareholder liquidity needs. There are approximately 500 banks in Texas with total assets of less than $1 billion, which affords us future opportunities to make acquisitions that we believe will strengthen our business and increase franchise value over the long term.
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Improve Efficiency and Increase Profitability. We employ a systematic and calculated approach to increasing our profitability and improving our efficiencies. We have updated our operating capabilities and created synergies within the Company in the areas of technology, data processing, compliance and human resources. We believe that our scalable infrastructure provides us with an efficient operating platform from which to grow in the near term without incurring significant incremental noninterest expenses, which will enhance our returns. |
Our Competitive Strengths
We believe the following competitive strengths support our strategy:
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Experienced Senior Management Team. With a combined 150 years of banking experience, our cohesive senior management team has a long and successful history of managing community banking organizations. We believe that, in addition to our senior executives, we have significant depth in our overall management in areas such as lending, credit administration, finance, operations, and information technology. Our team has a demonstrated track record of managing profitable growth, successfully executing acquisitions, maintaining a strong credit culture, and implementing a relationship-based and community service-focused approach to banking. |
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Well Positioned in Attractive Markets. We have a significant presence in two of the most attractive markets in Texas. The Dallas/North Texas and the Austin/Central Texas areas rank among the fastest growing markets in the nation, a growth that has fueled job creation, commercial development, and housing starts. These economic indicators reflect an expanding economy, both for the entire state and for the regions in which we operate. We have focused our operations in the most economically vibrant portions of these regions, with our headquarters and numerous locations in the growth corridor north of Dallas-Fort Worth and locations in the growing areas of Travis and Williamson Counties in the greater Austin area. We believe our demonstrated ability to operate successfully within these markets will facilitate our continued organic growth as the economies in our markets expand. |
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History of Sustained Profitability. Because we focus on long-term financial performance, we have a history of profitability despite the recent economic headwinds and turmoil in the banking industry. For the years ended December 31, 2009 to December 31, 2012, our net income increased from $7.7 million to $17.4 million, a CAGR of 31.4%. |
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Proven Ability and Demonstrated Success in Acquisition Execution and Integration. As a result of the four acquisitions that we have completed since 2010, which is the second largest number of completed acquisitions by any banking organization in Texas during that period, we have developed an experienced and disciplined acquisition and integration approach capable of identifying candidates, conducting thorough due diligence, determining if the acquisition would enhance shareholder returns, and consummating the acquisition. We have successfully integrated the acquired operations into our existing operational platform and built on the acquired entitys market presence. Our acquisition experience and our reputation as a successful acquiror position us to continue to capitalize on additional opportunities in the future. |
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Strong Credit Culture. Our disciplined implementation of comprehensive policies and procedures for credit underwriting and administration has enabled us to maintain strong asset quality during our growth and the challenges recently posed by the national economy. While loans secured by real estate constitute a significant portion of our loan portfolio, we manage the risk in the portfolio with prudent underwriting and proactive credit administration. We mitigate the risk in our portfolio by diversifying industry type and the geographic location of our collateral within the State of Texas. |
Our Corporate Structure
The Company . The Company is a registered bank holding company that is the parent company for Independent Bank. The Company was organized as a Texas corporation on September 20, 2002. We acquired 100% of the stock of the Bank on December 31, 2002. Our primary function is and will be to own all of the stock of the Bank. Our profitability is primarily dependent on the financial results of the Bank.
The Bank . Independent Bank is a Texas state bank. Its home office is located in McKinney, Texas and it operates 30 banking offices throughout North and Central Texas. The Bank is a locally managed community bank that seeks to provide personal attention and professional assistance to its customer base, which consists principally of small to medium size businesses, professionals, and individuals. Independent Banks philosophy includes offering direct access to its officers and personnel, providing friendly, informed and courteous service, local and timely decision making, flexible and reasonable operating procedures, and consistently applied credit policies.
Awards and Recognition . Over the past several years, we have received numerous awards and recognitions for our banking services, our employment environment and our community service. For each of the last two years we received community service and marketing awards from the Independent Bankers Association of Texas (IBAT) Best of Community Banking Awards, and we were listed in the Top 100 Places to Work published by The Dallas Morning News. In 2011, we were listed in the Dallas 100 Fastest-Growing Private Companies in North Texas published by the Dallas Business Journal and the SMU Cox School of Business. In 2010, we received the LEED Silver Certification from the United States Green Building Council for the remodeling of our corporate headquarters building in McKinney. Finally, we regularly are voted Best Bank by various local publications. We believe that these awards and recognition demonstrate our commitment to our communities, our customers, our employees, and our industry.
Our Community Banking Services
The Independent Way. Nearly a century after our beginning, our dedication to serving the needs of individuals and businesses in our communities remains stronger than ever. We strive to provide our customers with innovative financial products and services, local decision making and a level of service and responsiveness that is second to none. Our innovative and independent spirit is balanced by adherence to fundamental banking
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principles that have enabled us to remain strong, sound and financially secure even during challenging economic times. We are also steeped in a tradition of civic pride as evidenced by the investment of our time, energies and financial resources in many local organizations to improve and benefit our communities.
Lending Strategy and Types of Loans . Through the Bank, we offer a broad range of commercial and retail lending products to businesses, professionals and individuals. Commercial lending products include owner-occupied commercial real estate loans, interim construction loans, commercial loans (such as SBA guaranteed loans, business term loans, equipment financing and lines of credit) to a diversified mix of small and midsized businesses, and loans to professionals, particularly medical practices. Retail lending products include residential first and second mortgage loans, and consumer installment loans such as loans to purchase cars, boats and other recreational vehicles.
Our strategy is to maintain a broadly diversified loan portfolio by type and location. Our loans are primarily real estate secured loans spread among a variety of types of borrowers, including owner occupied offices for small businesses, medical practices and offices, retail operations, and multi-family properties. Our loans are diversified geographically throughout our Dallas/North Texas region (approximately 55%) and our Austin/Central Texas region (approximately 45%). We seek to be the premier provider of lending products and services in our market areas and serve the credit needs of high quality businesses and individual borrowers in the communities we serve.
We market our lending products and services to qualified lending customers through our high touch personal service, and seek to attract new lending customers through competitive pricing and innovative structures. We target our business development and marketing strategy primarily on businesses with between $500,000 and $25 million in annual revenue. Our lending officers actively solicit the business of companies entering our market areas as well as long-standing businesses operating in the communities we serve. As a general practice, we originate substantially all of our loans and we limit the amount of participations we purchase to loans originated by lead banks with which we have a close relationship and which share our credit philosophies.
The following is a discussion of our major types of lending:
Commercial Real Estate Loans . We are primarily a real estate secured lender. We originate real estate loans to finance commercial property that is owner-occupied as well as commercial property owned by real estate investors. The total amount of owner-occupied commercial real estate loans outstanding as of December 31, 2012 was $353.5 million, or 25.6% of our loan portfolio. The total amount of commercial real estate loans outstanding as of December 31, 2012, excluding owner-occupied properties, was $295.0 million, or 21.4% of our loan portfolio. The real estate securing our existing commercial real estate loans includes a wide variety of property types, such as owner-occupied offices/warehouses/production facilities, office buildings, health care facilities, hotels, mixed-use residential/commercial, retail centers, multifamily properties, restaurants, churches and assisted living facilities.
Commercial real estate loans are often larger and involve greater risks than other types of lending. Adverse developments affecting commercial real estate values in our market area could increase the credit risk associated with these loans, impair the value of property pledged as collateral for these loans, and affect our ability to sell the collateral upon foreclosure without a loss. Due to the larger average size of commercial real estate loans, we face the risk that losses incurred on a small number of commercial real estate loans could have a material adverse impact on our financial condition and results of operations. In addition, commercial real estate loans have the risk that repayment is subject to the ongoing business operations of the borrower.
Commercial Construction, Land and Land Development Loans . Our construction portfolio includes loans to small and midsized businesses to construct owner-user properties, and, to a much lesser extent, loans to developers of commercial real estate investment properties and residential developments. These loans are typically disbursed as construction progresses and carry interest rates that vary with the prime rate. As of December 31, 2012, the outstanding balance of our construction loans was $97.3 million, or 7.1% of our total loan portfolio.
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Construction and development loans typically involve more risk than other types of lending products because repayment of these loans is dependent, in part, on the success of the ultimate project or, to a lesser extent, the ability of the borrower to refinance the loan or sell the property upon completion of the project, rather than the ability of the borrower or guarantor to repay principal and interest. Moreover, these loans are typically based on future estimates of value and economic circumstances, which may differ from actual results or be affected by unforeseen events. If the actual circumstances differ from the estimates made at the time of approval of these loans, we face the risk of having inadequate security for the repayment of the loan. Further, if we foreclose on the loan, we may be required to fund additional amounts to complete the project and may have to hold the property for an unspecified period of time while we attempt to dispose of it.
Residential Real Estate Loans . We offer first and second mortgage loans to our individual customers primarily for the purchase of primary and secondary residences. As of December 31, 2012, the outstanding balance of one-to-four family real estate secured loans, including home equity loans, represented $315.3 million, or 22.9%, of our total loan portfolio. Residential real estate loans held for sale of $9.2 million at December 31, 2012 are also included in this category.
Like our commercial real estate loans, our residential real estate loans are secured by real estate, the value of which may fluctuate significantly over a short period of time as a result of market conditions in the area in which the real estate is located. Adverse developments affecting real estate values in our market areas could therefore increase the credit risk associated with these loans, impair the value of property pledged as collateral on loans and affect our ability to sell the collateral upon foreclosure without a loss or additional losses.
Single-Family Interim Construction Loans . We make single-family interim construction loans to home builders and individuals to fund the construction of single family residences with the understanding that such loans will be repaid from the proceeds of the sale of the homes by builders or, in the case of individuals building their own homes, with the proceeds of a permanent mortgage loan. Such loans are secured by the real property being built and are made based on our assessment of the value of the property on an as-completed basis. As of December 31, 2012, the outstanding balance of our single-family interim construction loans was $67.9 million, or 4.9% of our total loan portfolio.
Like our commercial and residential real estate loans, our single-family interim construction loans are secured by real estate, the value of which may fluctuate significantly over a short period of time as a result of market conditions in the area in which the real estate is located. Adverse developments affecting real estate values in our market areas could therefore increase the credit risk associated with these loans, impair the value of property pledged as collateral on loans, and affect our ability to sell the collateral upon foreclosure without a loss or additional losses. Further, like our commercial construction and land development loans, the repayment of single-family interim construction loans is dependent upon the ability of the borrower to obtain a permanent loan or to sell the property rather than on the borrowers ability to repay the loans.
Commercial Loans . We originate commercial loans to small businesses and professionals, in particular, medical practices, located in our market areas. These loans are primarily term loans to purchase capital equipment and small loans for working capital and operational purposes. Because we are a community bank with long standing close ties to the businesses and professionals operating in our market areas, we are able to tailor our commercial loan programs to meet the needs of our customers. As of December 31, 2012, we had outstanding commercial loans, of $169.9 million, or 12.3% of our total loan portfolio. To further diversify our portfolio, we have recently hired an experienced energy lending team, which will operate as part of our latest Dallas location.
Like our commercial real estate loans, commercial loans have the risk that repayment is subject to the ongoing business operations of the borrower. Any interruption or discontinuance of operating cash flows from the business, which may be influenced by events not under the control of the borrower such as economic events and changes in governmental regulations, could materially affect the ability of the borrower to repay the loan.
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Further, commercial loans are often secured by personal property, such as inventory, and intangible property, such as accounts receivable, which if the business is unsuccessful, typically have values insufficient to satisfy the loan without a loss.
Agricultural Loans. Our agricultural loan portfolio primarily includes loans secured by real property used for agricultural purposes. We provide loans for the acquisition of farm and ranch land, as well as the construction of buildings upon agricultural real estate. On a more limited basis, we offer agricultural equipment financing and crop production loans which are secured by crops, equipment, and crop insurance. The total amount of agricultural loans outstanding at December 31, 2012, was $40.1 million, or 2.9% of our total loan portfolio.
Like our other types of real estate loans, our agricultural loans are secured primarily by real estate, the value of which may fluctuate significantly over a short period of time as a result of market conditions in the area in which the real estate is located. Adverse developments affecting real estate values in our market areas could therefore increase the credit risk associated with these loans, impair the value of the property pledged as collateral, and affect our ability to sell the collateral upon foreclosure without a loss. Further, agricultural loans carry additional risk because repayment of this type of loan is dependent, in part, on continuing successful agricultural operations, which can be adversely affected by weather, market conditions and governmental agricultural policies, all of which are beyond control of the borrower. If the agricultural operation is unsuccessful, agricultural loans secured by livestock, crops or equipment are at even greater risk because this type of collateral typically has values insufficient to satisfy the loan without a loss.
Consumer Loans . We offer a variety of consumer loans, such as installment loans to purchase cars, boats and other recreational vehicles. Our consumer loans typically are part of an overall customer relationship designed to support the individual consumer borrowing needs of our commercial loan and deposit customers. As of December 31, 2012, we had outstanding $39.5 million of consumer loans, or 2.9% of our total loan portfolio. Consumer loans typically have shorter terms, lower balances, higher yields and higher risks of default than residential real estate mortgage loans. Consumer loan collections are dependent on the borrowers continuing financial stability and are therefore more likely to be affected by adverse personal circumstances. Consumer loan collections are dependent on the borrowers financial stability and therefore involve greater risk of being affected by adverse individual circumstances, such as the loss of employment or unexpected medical costs.
Mortgage Brokerage Activities. We also engage in the origination of residential loans sold into the secondary market. We originate mortgages for specific institutional purchasers, such as investment banks and other financial institutions. Our mortgage originations were $177.1 million during 2012 compared with $113.5 million during 2011. We sell all of the originated mortgages to institutional purchasers shortly after closing. We only retain a portion of the revenue generated by our mortgage brokerage division, with the remaining portion, less expenses and salaries, paid to our mortgage brokers as part of their compensation arrangement.
Underwriting . Prudent underwriting is the foundation of our strong credit culture. We seek to maintain a broadly diversified loan portfolio in terms of type of customer, type of loan product, geographic area and industries in which our business customers are engaged. We adhere to disciplined underwriting standards and offer creative loan solutions in a responsive and timely manner.
In considering a loan, we follow the conservative underwriting principles in our loan policy which include the following:
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having a relationship with our customers to ensure a complete understanding of their financial condition and ability to repay the loan; |
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verifying that the primary and secondary sources of repayment are adequate in relation to the amount of the loan; |
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observing appropriate loan to value guidelines for real estate secured loans; |
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maintaining our targeted levels of diversification for the loan portfolio, both as to type of borrower and geographic location of collateral; and |
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ensuring that each loan is properly documented with perfected liens on collateral. |
We implement our underwriting policy through a tiered system of individual loan authority for our loan officers and a loan committee approval structure. Lending officers are assigned various levels of authority based upon their respective levels of experience and expertise. Loans with relationships over the lending authority of the loan officer must be approved by our Executive Loan Committee. Loans exceeding the authority of the Executive Loan Committee must be approved by Independent Banks Director Loan Committee.
We employ appropriate limits on our overall loan portfolio and requirements with respect to certain types of lending. As a general practice, we operate with an internal guideline limiting loans to any single borrowing relationship to less than half of Independent Banks legal lending limit.
We require our nonowner occupied commercial real estate loans to be secured by well-managed income producing property with adequate margins, supported by a history of profitable operations and cash flows, and proven operating stability in the case of commercial loans. Except in very limited circumstances, our commercial real estate loans and commercial loans are supported by personal guarantees from the principals of the borrower.
As part of the underwriting process, we seek to minimize risk in a variety of ways, including the following:
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careful analysis of the borrowers financial condition, cash flow, liquidity, and leverage; |
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assessment of the projects operating history, operating projections, location and condition; |
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review of appraisals, title commitment and environmental reports; |
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consideration of the management experience and financial strength of the principals of the borrower; and |
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understanding economic trends and industry conditions. |
We are a relationship-oriented, rather than transaction-oriented, lender. Accordingly, substantially all of our loans are made to borrowers located or operating in our primary market areas. The limited number of loans secured by properties located outside our market areas are made to borrowers who are well-known to the Bank because they are headquartered or reside within one of our primary market areas. For example, we have loans secured by second homes in other states owned by customers whose primary residence is located in our market areas, and we have loans to a restaurant franchise headquartered in our Austin market, but which has locations in other states.
Credit Risk Management
Managing credit risk is a company-wide process. Our strategy for credit risk management includes the conservative underwriting process described above, and ongoing risk monitoring and review processes for all credit exposures. Our Vice Chairman and Chief Risk Officer provides bank-wide credit oversight and periodically reviews the loan portfolio to ensure that the risk identification processes are functioning properly and that our credit standards are followed. In addition, a third party annually performs a loan review to identify problem assets. We strive to identify potential problem loans early in an effort to aggressively seek resolution of these situations before the loans become a loss, record any necessary charge-offs promptly and maintain adequate allowance levels for probable loan losses inherent in the loan portfolio.
Credit risk management involves a partnership between our lenders and our credit administration group. The manager of this group has significant prior experience working in credit administration. The members of our credit administration group primarily focus their efforts on credit analysis, underwriting and monitoring new
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credits and providing management reporting to executive management and the board of directors. In addition, the group includes a special assets manager who is responsible for monitoring and working out problem loans, managing the collection and foreclosure process, and operating and disposing of other real estate owned.
In general, whenever a particular loan or overall borrower relationship is downgraded to special mention or substandard based on one or more standard loan grading factors, our special assets manager will make a determination as to whether responsibility for the ongoing monitoring of the loan or relationship should be retained by the loan officer, or whether this responsibility should be transferred to the special assets group. Executive management regularly reviews the status of the watch list and classified assets portfolio as well as the larger credits in the portfolio.
IBG Adriatica
We established IBG Adriatica, Inc., or IBG Adriatica, as a wholly owned subsidiary of the Company on June 20, 2011 to acquire distressed loans related to a mixed commercial/residential development in McKinney, Texas, from a third party. The distressed loans had an aggregate face value of approximately $23 million at acquisition and were secured by approximately 27 acres of real property located in the Adriatica development in McKinney. The purchase price for the loans was $16.3 million, of which IBG Adriatica borrowed $12.2 million from the seller. The Company has guaranteed this loan.
While not part of our ordinary course of business and without any intention of pursuing this line of business in the future, we formed IBG Adriatica for the following reasons.
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We believed that the completion of this anchor development in a professional and high quality manner was important to the overall growth of McKinney, one of our major markets and home to our headquarters. |
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We were very familiar with the Adriatica development because we own a branch in the development and have financed several owner occupied professional buildings within the development. |
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We needed to be in control of the development to protect the value of our branch and the professional buildings in the area that secured our outstanding loans. |
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We believed that the property was under-valued and had significant potential for development and that the price for the distressed loans secured by the property was advantageous. |
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We believed that we could both preserve the value of our branch and the real estate securing our loans within the development and exit the investment for a gain within a reasonable time frame. |
Following the acquisition of the distressed loans, IBG Adriatica acquired all of the real property securing the loans through a Deed in Lieu of Foreclosure. The real property consisted of a 29,000 square foot commercial office building, a 16,500 square foot retail center, 36 residential lots, a 625 space multistory parking garage, and approximately 18 acres of undeveloped real property. In connection with its acquisition of the real property, IBG Adriatica obtained a third party appraisal indicating that the combined value of the real property was approximately $18.4 million. The property was recorded at $17.0 million in recognition of expected selling costs.
IBG Adriatica holds its Adriatica assets as other real estate owned. While IBG Adriatica has not and will not act as the developer of the project, it has invested approximately $750,000 to improve the infrastructure of the overall project. IBG Adriatica also is incurring holding costs related to the property, including property taxes, insurance, and management expenses. While IBG Adriatica receives rental income from the lease of the commercial and retail buildings included in the property, the ability to repay the indebtedness and the overall success of the project is dependent on IBG Adriaticas ability to sell the real property. IBG Adriatica completed one sale in 2011 for a net sales price of approximately $1.5 million and four sales in 2012 for an aggregate net sales price of approximately $8.1 million. IBG Adriatica used approximately $8.7 million of these net sales
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proceeds to reduce its indebtedness to $3.5 million as of December 31, 2012. As a result of these sales, the recorded value of the Adriatica property was approximately $9.7 million as of December 31, 2012.
Deposits
Deposits are our principal source of funds for use in lending and other general banking purposes. We provide a full range of deposit products and services, including a variety of checking and savings accounts, debit cards, online banking, mobile banking, eStatements and bank-by-mail and direct deposit services. We also offer business accounts and management services, including analyzed business checking, business savings, and treasury management services. We solicit deposits through our relationship-driven team of dedicated and accessible bankers and through community focused marketing.
Given the diverse nature of our branch network and our relationship-driven approach to our customers, we believe our deposit base is less sensitive to our competitors interest rates. Nevertheless, we attempt to price our deposit products to promote core deposit growth.
Our ability to gather deposits is an important aspect of our business franchise, and we believe this is a significant driver of franchise value. As of December 31, 2012, we held $1.4 billion of total deposits. We have grown deposits at a CAGR of 24.3% from December 31, 2009 to December 31, 2012. At the request of our customers, we place a small percentage of our total deposits with other financial institutions and receive reciprocal deposits as part of the Certificate of Deposit Account Registry System, or CDARS, program which are classified as brokered deposits. Other than deposits obtained through the CDARS program, we do not have brokered deposits.
Our Market Areas
We are based in Texas which continues to have a rapidly growing population, a high level of job growth and an attractive business climate. The Texas economy is strong, diverse and growing, and it benefits from a number of expanding industries, in particular, the energy, technology and healthcare industries.
We operate in two market regions situated in the heart of Texas along the Interstate 35 corridor from Dallas to Austin. The communities we serve are a mix of affluent and growing suburban areas related to the Dallas-Fort Worth and Austin metropolitan areas, the New Urbanism areas of Dallas and Austin, the Waco metropolitan area, and smaller rural communities on the outskirts of the Dallas metropolitan area. We believe our presence in a diversified group of communities enables us to match the strengths of each area with needs in other areas, thereby enhancing our overall operations. Within these regions, our strategy is to selectively place our banking offices in growing and affluent markets. For example, Collin County, the county in which we have the most locations, has projected population growth of 14.0% from 2011 through 2016, which is approximately double the projected population growth for the Dallas-Fort Worth MSA, and the countys 2011 median household income was $86,909, which is 67% higher than the 2011 median household income for the Dallas-Fort Worth MSA. Further, Williamson County, where we have two Central Texas locations, reported job growth of 75% from 2000 to 2011, ranking third on the CNN Money Magazine list of Where the Jobs Are. We also are proud that McKinney, Texas, home of our corporate headquarters, ranked as the second best place to live in 2012 by CNN Money Magazine .
Dallas/North Texas Region. The Dallas-Fort Worth metropolitan area, the fourth largest metropolitan area in the nation based upon the 2011 estimate by the U.S. Census Bureau, serves as the corporate headquarters for numerous Fortune 500 companies, including Exxon Mobil, AT&T, Texas Instruments, Southwest Airlines, and JCPenney. The Dallas-Fort Worth area also contains several world class hospitals and medical research facilities, major universities, and professional sports franchises. We primarily operate in Collin, Dallas, Denton, and Grayson Counties, which are located in the northern growth corridor of the Dallas-Fort Worth metropolitan area.
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Our locations in the Dallas/North Texas region are positioned among the fastest growing and most affluent counties within the region. The following table reflects our position in the Dallas/North Texas region and highlights key demographics of the counties within this region:
County |
Number of
Branches (1) |
Company
Deposits in Market (1)(2) |
Percent of
Franchise Deposits |
Total
Population 2011 |
Projected
Population Change 2011-2016 |
Median
Household Income 2011 |
||||||||||||||||||
Collin |
10 | $ | 474,589 | 37.1 | % | 804,469 | 13.99 | % | $ | 86,909 | ||||||||||||||
Grayson |
6 | 276,584 | 21.6 | 121,773 | 3.95 | 40,861 | ||||||||||||||||||
Denton |
3 | 127,785 | 10.0 | 680,782 | 13.26 | 68,023 | ||||||||||||||||||
Dallas |
2 | 18,739 | 2.4 | 2,386,191 | 3.23 | 50,320 | ||||||||||||||||||
Tarrant |
1 | 7,534 | 0.6 | 1,836,199 | 9.01 | 55,312 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|||||||||||||||||
County Totals / Weighted Average (3) |
22 | $ | 905,231 | 71.7 | % | 5,829,414 | 10.46 | % | $ | 68,906 | ||||||||||||||
|
|
|
|
|
|
|
|
|||||||||||||||||
State of Texas |
25,525,763 | 7.76 | 47,753 |
(1) | Gives effect to our acquisition of The Community Group, Inc. completed on October 1, 2012 and the closing of a duplicative branch acquired in that transaction. |
(2) | Deposits as of June 30, 2012. In thousands. |
(3) | Demographics are weighted by the percentage of deposits in each county. |
Source: | SNL Financial |
Austin/Central Texas Region. Austin is the capital of Texas, the home to The University of Texas, and is a major national cultural, arts, film, and media center. One of the fastest growing areas in the country, it ranked second nationally in percentage population growth from 2010 to 2011 as estimated by the U.S. Census Bureau. Several public high tech companies maintain their corporate headquarters in the Austin metropolitan area, including Dell, Freescale Semiconductor, and National Instruments Corp. In fact, Austin is often dubbed Silicon Hills because of the number technology companies that have operations in this area, including Apple, Google, Facebook, IBM and Advanced Micro Devices. Our Central Texas region also includes the city of Waco, which is located equi-distant between Dallas and Austin and is home to Baylor University.
The following table reflects our position in the Austin/Central Texas region and highlights key demographics of the counties within this region:
County |
Number of
Branches |
Company
Deposits in Market (1) |
Percent of
Franchise Deposits |
Total
Population 2011 |
Projected
Population Change 2011-2016 |
Median
Household Income 2011 |
||||||||||||||||||
Travis |
3 | $ | 138,995 | 10.9 | % | 1,047,498 | 10.79 | % | $ | 56,472 | ||||||||||||||
Williamson |
2 | 125,105 | 9.8 | 438,456 | 18.18 | 75,174 | ||||||||||||||||||
McLennan |
3 | 99,011 | 7.7 | 236,775 | 4.08 | 38,483 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|||||||||||||||||
County Totals / Weighted Average (2) |
8 | $ | 363,111 | 28.4 | % | 1,722,729 | 11.51 | % | $ | 58,010 | ||||||||||||||
|
|
|
|
|
|
|
|
|||||||||||||||||
State of Texas |
25,525,763 | 7.76 | 47,753 |
(1) | Deposits as of June 30, 2012. In thousands. |
(2) | Demographics are weighted by the percentage of the Companys deposits within each county. |
Source: | SNL Financial |
49
Competition
We compete in the commercial banking industry solely through the Bank and firmly believe that the Banks long-standing presence in the community and personal service philosophy enhances our ability to attract and retain customers. This industry is highly competitive, and the Bank faces strong direct competition for deposits, loans, and other financial-related services. We compete with other commercial banks, thrifts and credit unions. Although some of these competitors are situated locally, others have statewide or nationwide presence. In addition, we compete with large banks in major financial centers and other financial intermediaries, such as consumer finance companies, brokerage firms, mortgage banking companies, insurance companies, securities firms, mutual funds and certain government agencies as well as major retailers, all actively engaged in providing various types of loans and other financial services. We believe that our banking professionals, the range and quality of products that we offer and our emphasis on building long-lasting relationships distinguishes the Bank from its competitors.
According to SNL Financial, as of June 30, 2012, our Company had the fifth largest deposit market share in the zip codes in which we operate. We believe that our strong market share in our zip codes of operation is a reflection of our ability to compete with more prominent banking franchises in our markets.
Our Employees
As of December 31, 2012, we employed approximately 335 persons. We provide extensive training to our employees in an effort to ensure that our customers receive superior customer service. None of our employees are represented by any collective bargaining unit or are parties to a collective bargaining agreement. We believe that our relations with our employees are good.
50
Our Properties
We own our corporate headquarters, which is a 62,000 square foot, four story office building located at 1600 Redbud Blvd., Suite 400, McKinney, Texas 75069, and serves as the Banks home office. Our building is the most prominent office building in McKinney, providing significant visibility which enhances our brand in Collin County. Our recent remodeling of the building won U.S. Green Building Councils 2010 LEED Silver Certification. In addition to the foregoing, we also operate banking offices at the following locations:
Dallas/North Texas Region |
Austin/Central Region |
|||||||||
Location |
Own or Lease |
Sq. Ft. |
Location |
Own or Lease |
Sq. Ft. |
|||||
Collin County |
Travis County | |||||||||
McKinney (Redbud) (1) |
Own | 3,542 (1) |
Austin Branch (2) |
Lease | 1,464 | |||||
McKinney (Craig Drive) |
Own | 9,640 |
Lakeway Branch |
Own | 3,500 | |||||
McKinney (Adriatica) |
Own | 5,524 |
Manor Branch |
Own | 5,231 | |||||
Anna Branch |
Own | 5,678 | Williamson County | |||||||
Celina Branch |
Own | 6,959 |
Georgetown Branch |
Own | 5,760 | |||||
Farmersville Branch |
Own |
14,671 |
Round Rock Branch |
Own | 5,226 | |||||
Lavon Branch |
Own | 3,608 | McLennan County | |||||||
Plano Branch |
Own | 2,069 |
Bosque Branch |
Lease |
5,100 | |||||
Princeton Branch |
Own | 5,790 |
Elm Mott Branch |
Own | 2,655 | |||||
Prosper Branch |
Own | 5,310 |
Woodway Branch |
Lease | 4,787 | |||||
Dallas County | ||||||||||
Coppell Branch |
Own | 8,898 | ||||||||
Dallas Branch |
Lease | 5,148 | ||||||||
Denton County | ||||||||||
Denton Branch |
Own | 5,109 | ||||||||
Highland Village Ranch |
Own | 12,962 | ||||||||
Little Elm Branch |
Own | 3,500 | ||||||||
Grayson County | ||||||||||
Collinsville Branch |
Own | 5,105 | ||||||||
Denison Branch |
Own | 11,732 | ||||||||
Howe Branch |
Own | 6,380 | ||||||||
Sherman Branch |
Own | 3,874 | ||||||||
Van Alstyne Branch |
Own | 4,554 | ||||||||
Whitewright Branch |
Own | 4,292 | ||||||||
Tarrant County | ||||||||||
Colleyville Branch |
Lease | 2,550 |
(1) | The Redbud branch is located on the ground floor of our headquarters office building. |
(2) |
The Bank is constructing a new building that it will own on 40 th Street in Austin. The Austin Branch will relocate to such facility in March 2013 and occupy 10,328 square feet of space in this building. |
We believe that the leases to which we are subject are generally on terms consistent with prevailing market terms, and with the exception of our Woodway Branch in Waco (see CERTAIN RELATIONSHIPS AND RELATED PARTY TRANSACTIONS), none of the leases are with our directors, officers, beneficial owners of more than 5% of our voting securities or any affiliates of the foregoing. We believe that our facilities are in good condition and are adequate to meet our operating needs for the foreseeable future.
Legal Proceedings
In the normal course of business, we are named or threatened to be named as a defendant in various lawsuits. Management, following consultation with legal counsel, does not expect the ultimate disposition of any or a combination of these matters to have a material adverse effect on our business.
51
Our subsidiary, Independent Bank, is currently subject to the following litigation matters:
The first matter is related to the Banks foreclosure on May 3, 2011, of real property securing a loan, and involves a title dispute between an adjacent property owner and the former borrower/owner of the foreclosed property. The dispute resulted in Field Street Development I, Ltd, Flct, Ltd, Flla, Ltd, Flsc, Ltd and Flst, Ltd filing a lawsuit in the 219th District Court of Texas on May 20, 2010, against Harold Holigan and Melissa Land Partners, Ltd, and joining the Bank and Holigan Land Development, Ltd. on or about July 21, 2011. The Bank is vigorously defending this action. Further, the Bank has submitted a claim to the title company that issued a title insurance policy with respect to the foreclosed property. The title company is currently paying the costs of defense. The Bank believes that the potential loss if the plaintiff prevails would be approximately $1,000,000. In that event, the Bank would pursue its claim against the title company for this amount.
The second matter is related to a lending relationship inherited by the Bank in connection with the acquisition of The Community Group, Inc. and its subsidiary, United Community Bank N.A., or UCB. UCB established a $350,000 line of credit for a guarantor to pay for deficiencies arising from loans made to a related borrower. John Ganter, the guarantor, filed a lawsuit on November 21, 2012, in the 298 th District Court of Texas alleging fraud by UCB seeking a restraining order to prevent the Bank from realizing on the collateral securing the line of credit and a judgment that the line of credit is unenforceable. The court denied the plaintiffs request for a temporary injunction, the restraining order lapsed, and the Bank foreclosed on and sold the collateral to satisfy the line of credit. The Bank has also filed a counterclaim against the plaintiff for deficiencies on other indebtedness guaranteed by the plaintiff and for payment of legal fees. The Bank is preparing a motion for summary judgment and otherwise continues to defend this lawsuit.
52
MANAGEMENTS DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS
The following discussion and analysis of our financial condition and results of operations should be read in conjunction with SELECTED FINANCIAL INFORMATION and our consolidated financial statements and the accompanying notes included elsewhere in this prospectus . This discussion and analysis contains forward-looking statements that are subject to certain risks and uncertainties and are based on certain assumptions that we believe are reasonable but may prove to be inaccurate. Certain risks, uncertainties and other factors, including those set forth under CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS, RISK FACTORS and elsewhere in this prospectus, may cause actual results to differ materially from those projected results discussed in the forward-looking statements appearing in this discussion and analysis. We assume no obligation to update any of these forward-looking statements.
As an emerging growth company under the JOBS Act, we have elected to include our consolidated financial statements as of and for the years ended December 31, 2012, 2011 and 2010 in this prospectus. As a result, in accordance with the JOBS Acts provisions, this managements discussion and analysis of our financial condition and results of operations addresses only our results of operations for those periods and financial condition as of those dates.
Overview
The Company was organized as a bank holding company in 2002. On January 1, 2009, we merged with Independent Bank Group Central Texas, Inc., and, since that time, we have pursued a strategy to create long-term shareholder value through organic growth of our community banking franchise in our market areas and through selective acquisitions of complementary banking institutions with operations in our market areas.
Our principal business is lending to and accepting deposits from businesses, professionals and individuals. We conduct all of our banking operations through the Bank. We derive our income principally from interest earned on loans and, to a lesser extent, income from securities available for sale. We also derive income from noninterest sources, such as fees received in connection with various deposit services and mortgage brokerage operations. From time to time, we also realize gains on the sale of assets and, in some instances, gains on acquisitions. Our principal expenses include interest expense on interest-bearing customer deposits, advances from the Federal Home Loan Bank of Dallas, or FHLB, and other borrowings, operating expenses, such as salaries, employee benefits, occupancy costs, data processing and communication costs, expenses associated with other real estate owned, other administrative expenses, provisions for loan losses and our assessment for FDIC deposit insurance.
We intend for this discussion and analysis to provide the reader with information that will assist in understanding our financial statements, the changes in certain key items in those financial statements from period to period and the primary factors that accounted for those changes. This discussion relates to our Company and its consolidated subsidiaries and should be read in conjunction with our consolidated financial statements as of and for the fiscal years ended December 31, 2012, 2011 and 2010, and the accompanying notes, appearing elsewhere in this prospectus. Our fiscal year ends on December 31.
Acquisitions Affect Year-over-Year Comparability
The comparability of our consolidated results of operations for the years ended December 31, 2012, 2011 and 2010 and our consolidated financial condition as of December 31, 2012, 2011 and 2010, as well as the financial information we report in future fiscal periods, is affected by the two acquisitions we completed in 2010 and the two acquisitions we completed in 2012. On July 31, 2010, we acquired Town Center Bank and on September 30, 2010, we acquired Farmersville Bancshares, Inc. and its bank subsidiary. The comparability of our consolidated results of operations for the year ended December 31, 2011 to our consolidated results of operations
53
for the year ended December 31, 2010 is affected by the fact that the results of the acquired operations of Town Center Bank and Farmersville Bancshares were first included in our consolidated results of operations in the third quarter of our fiscal year ended December 31, 2010, but were included for all of the year ended December 31, 2011. On April 1, 2012, we acquired I Bank Holding Company and its bank subsidiary, and on October 1, 2012, we acquired The Community Group and its bank subsidiary. The comparability of our consolidated results of operations for the year ended December 31, 2012 with our consolidated results of operations for the year ended December 31, 2011 is affected by the fact that the results of the acquired operations of I Bank Holding Company and The Community Group were not included in our consolidated results of operations for the year ended December 31, 2011 and were first included in our consolidated results of operations in the second and fourth quarters of our fiscal year ended December 31, 2012, respectively.
S Corporation Status
Since our formation in 2002, we have elected to be taxed for federal income tax purposes as a Subchapter S corporation under the provisions of Section 1361 through 1379 of the Internal Revenue Code. As a result, our net income has not been subject to, and we have not paid, U.S. federal income taxes and we have not been required to make any provision or recognize any liability for federal income tax in our financial statements. The consummation of the offering contemplated by this prospectus will result in the termination of our status as an S corporation and in our taxation as a C corporation under Subchapter C of the Internal Revenue Code for federal income tax purposes. Upon the termination of our status as a Subchapter S corporation, we will commence paying federal income taxes on our pre-tax net income and our net income for each fiscal year and each interim period will reflect a provision for federal income taxes. As a result of that change in our status under the federal income tax laws, the net income and earnings per share data presented in our historical financial statements set forth elsewhere in this prospectus, which do not include any provision for federal income taxes, will not be comparable with our future net income and earnings per share in periods after we commence to be taxed as a C corporation, which will be calculated by including a provision for federal income taxes.
Depending on our effective income tax rate, the termination of our status as an S corporation may affect our financial condition or cash flows. We have historically made periodic cash distributions to our shareholders in amounts estimated to be necessary for them to pay their estimated personal U.S. federal income tax liabilities relating to the items of our income, gain, deductions and losses allocated to each of our shareholders. The aggregate amount of such cash distributions has equaled 35% of our net income. If our effective annual income tax rate were to be materially less than 35% of our net income for any fiscal year, our cash flows and financial condition may improve commensurately compared with our historical cash flows and financial condition. On the other hand, if our effective annual income tax rate were to be materially higher than 35% in future periods, our future cash flows and financial condition would be adversely affected compared to our historical cash flows and financial condition.
Deferred tax assets and liabilities will be recognized for the future tax consequences attributable to differences between the financial statement carrying amounts of existing assets and liabilities and their respective tax bases. Deferred tax assets and liabilities are measured using tax rates expected to apply to taxable income in the years in which those temporary differences are expected to be recovered or settled. The effect on deferred tax assets and liabilities of the change in tax rates resulting from becoming a C corporation will be recognized in income in the quarter such change takes place. This difference between the financial statement carrying amounts of assets and liabilities and their respective tax basis would have been recorded as a net deferred tax asset of $111,000 if it had been recorded on our balance sheet as of December 31, 2012 and as a net deferred tax liability of $1.7 million if it had been recorded on our balance sheet as of December 31, 2011. If the Company had become a C corporation as of December 31, 2012, there would be an income tax credit of approximately $111,000, which would increase after tax earnings and equity by the same amount.
54
Discussion and Analysis of Results of Operations for the Years Ended December 31, 2012 and December 31, 2011
The following discussion and analysis of our results of operations compares the year ended December 31, 2012 with the year ended December 31, 2011.
Net Income
Our net income increased by $3.7 million, or 26.8%, to $17.4 million for the year ended December 31, 2012 from $13.7 million for the year ended December 31, 2011. The increase resulted from a $12.3 million increase in net interest income and a $1.5 million increase in noninterest income, partially offset by a $1.5 million increase in the provision for loan losses and a $8.5 million increase in noninterest expense. Our net income for the year ended December 31, 2012 and, therefore, our return on average assets and our return on average equity, were adversely affected by $1.4 million of acquisition-related expenses and a $348,000 loss on the sale of our single engine aircraft in connection with the purchase of a twin engine, turbo prop aircraft.
Net Interest Income
Our net interest income is our interest income, net of interest expenses. Changes in the balances of our earning assets and our deposits, FHLB advances and other borrowings, as well as changes in the market interest rates, affect our net interest income. The difference between our average yield on earning assets and our average rate paid for interest-bearing liabilities is our net interest spread. Noninterest-bearing sources of funds, such as demand deposits and stockholders equity, also support our earning assets. The impact of the noninterest-bearing sources of funds is reflected in our net interest margin, which is calculated as net interest income divided by average earning assets.
We earned net interest income of $58.6 million for the year ended December 31, 2012, an increase of $12.3 million, or 26.5%, from $46.3 million for the year ended December 31, 2011. The increase in net interest income was due to growth of our average interest-earning assets and a reduction in our cost of funds for fiscal 2012 as a result of an increase in noninterest-bearing deposits. Our net interest margin for fiscal 2012 decreased to 4.40% from 4.42% in fiscal 2011, and our interest rate spread for fiscal 2012 decreased to 4.27% from the 4.28% interest rate spread for fiscal 2011. The average balance of interest-earning assets for fiscal 2012 increased by $282.3 million, or 26.9%, to $1.3 billion from an average balance of $1.0 billion for fiscal 2011. The average aggregate balance of noninterest-bearing checking accounts increased to $203.2 million for fiscal 2012 from $148.7 million for fiscal 2011. The increases in interest-earning assets and noninterest-bearing deposits occurred as a result of the two acquisitions that we completed in 2012, while the balance of the increases came from organic loan and deposit growth. The decrease in net interest margin was offset by an increase in the ratio of average interest-earning assets to interest-bearing liabilities to 113.82% for the year ended December 31, 2012 from 110.61% for the prior year. Our net interest margin for the year ended December 31, 2012 was adversely affected by a 28 basis point decline in the weighted-average yield on interest-earning assets to 5.41% for the year ended December 31, 2012 from 5.69% for the year ended December 31, 2011. This decline in yield resulted from changes in market interest rates and the competitive landscape.
55
Average Balance Sheet Amounts, Interest Earned and Yield Analysis. The following table presents average balance sheet information, interest income, interest expense and the corresponding average yields earned and rates paid for the years ended December 31, 2012 and 2011. The average balances are principally daily averages and, for loans, include both performing and nonperforming balances.
For the Year Ended December 31, | ||||||||||||||||||||||||
2012 | 2011 | |||||||||||||||||||||||
Average
Outstanding Balance |
Interest |
Yield/
Rate |
Average
Outstanding Balance |
Interest |
Yield/
Rate |
|||||||||||||||||||
(dollars in thousands) |
||||||||||||||||||||||||
Interest-earning assets: |
||||||||||||||||||||||||
Loans (1) |
$ | 1,179,006 | $ | 69,494 | 5.89 | % | $ | 920,296 | $ | 57,263 | 6.22 | % | ||||||||||||
Taxable securities |
79,587 | 1,357 | 1.71 | 70,042 | 1,767 | 2.52 | ||||||||||||||||||
Nontaxable securities |
25,397 | 825 | 3.25 | 14,314 | 522 | 3.65 | ||||||||||||||||||
Federal funds sold and other |
45,955 | 214 | 0.47 | 43,039 | 87 | 0.20 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Total interest-earning assets |
1,329,946 | 71,890 | 5.41 | 1,047,691 | 59,639 | 5.69 | ||||||||||||||||||
Noninterest-earning assets |
157,668 | 133,002 | ||||||||||||||||||||||
|
|
|
|
|||||||||||||||||||||
Total assets |
$ | 1,487,614 | $ | 1,180,693 | ||||||||||||||||||||
|
|
|
|
|||||||||||||||||||||
Interest-bearing liabilities: |
||||||||||||||||||||||||
Checking accounts |
$ | 579,495 | $ | 4,529 | 0.78 | % | $ | 443,890 | $ | 5,082 | 1.14 | % | ||||||||||||
Savings accounts |
110,118 | 710 | 0.65 | 86,080 | 926 | 1.08 | ||||||||||||||||||
Limited access money market accounts |
32, 976 | 117 | 0.36 | 27, 525 | 132 | 0.48 | ||||||||||||||||||
Certificates of deposit |
285,564 | 2,995 | 1.05 | 285,808 | 3,772 | 1.32 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Total deposits |
1,008,153 | 8,351 | 0.83 | 843,303 | 9,912 | 1.18 | ||||||||||||||||||
FHLB advances |
105,072 | 2,383 | 2.27 | 59,329 | 1,477 | 2.49 | ||||||||||||||||||
Notes payable and other borrowings |
39,963 | 2,072 | 5.18 | 30,030 | 1,489 | 4.96 | ||||||||||||||||||
Junior subordinated debentures |
15,260 | 531 | 3.48 | 14,538 | 480 | 3.30 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Total interest-bearing liabilities |
1,168,447 | 13,337 | 1.14 | 947,200 | 13,358 | 1.41 | ||||||||||||||||||
Noninterest-bearing checking accounts |
203,248 | 148,700 | ||||||||||||||||||||||
Noninterest-bearing liabilities |
10,863 | 5,871 | ||||||||||||||||||||||
Stockholders equity |
105,055 | 78,922 | ||||||||||||||||||||||
|
|
|
|
|||||||||||||||||||||
Total liabilities and equity |
$ | 1,487,614 | $ | 1,180,693 | ||||||||||||||||||||
|
|
|
|
|
|
|
|
|||||||||||||||||
Net interest income |
$ | 58,553 | $ | 46,281 | ||||||||||||||||||||
|
|
|
|
|||||||||||||||||||||
Interest rate spread |
4.27 | % | 4.28 | % | ||||||||||||||||||||
Net interest margin (2) |
4.40 | 4.42 | ||||||||||||||||||||||
Average interest-earning assets to average interest-bearing liabilities |
113.82 | 110.61 |
(1) | Average loan balances include nonaccrual loans. |
(2) | Net interest margins for the years presented represent: (i) the difference between interest income on interest-earning assets and the interest expense on interest-bearing liabilities, divided by (ii) average interest-earning assets for the year. |
Interest Rates and Operating Interest Differential . Increases and decreases in interest income and interest expense result from changes in average balances (volume) of interest-earning assets and interest-bearing liabilities, as well as changes in average interest rates. The following table shows the effect that these factors had on the interest earned on our interest-earning assets and the interest incurred on our interest-bearing liabilities. The effect of changes in volume is determined by multiplying the change in volume by the previous years average rate. Similarly, the effect of rate changes is calculated by multiplying the change in average rate by the prior years volume. For purpose of the following table, changes attributable to both volume and rate, which cannot be segregated, have been allocated to the changes due to volume and the changes due to rate in proportion to the relationship of the absolute dollar amount of change in each.
56
For the Year Ended December 31,
2012 vs. 2011 |
||||||||||||
Increase (Decrease) Due to |
Total
Increase (Decrease) |
|||||||||||
Volume | Rate | |||||||||||
(dollars in thousands) |
||||||||||||
Interest-earning assets : |
||||||||||||
Loans |
$ | 15,383 | $ | (3,152 | ) | $ | 12,231 | |||||
Taxable securities |
218 | (628 | ) | (410 | ) | |||||||
Nontaxable securities |
365 | (62 | ) | 303 | ||||||||
Federal funds sold and other |
6 | 121 | 127 | |||||||||
|
|
|
|
|
|
|||||||
Total interest-earning assets |
$ | 15,972 | $ | (3,721 | ) | $ | 12,251 | |||||
|
|
|
|
|
|
|||||||
Interest-bearing liabilities : |
||||||||||||
Checking accounts |
$ | 1,311 | $ | (1,864 | ) | $ | (553 | ) | ||||
Savings accounts |
216 | (432 | ) | (216 | ) | |||||||
Limited access money market accounts |
23 | (38 | ) | (15 | ) | |||||||
Certificates of deposit |
(3 | ) | (774 | ) | (777 | ) | ||||||
|
|
|
|
|
|
|||||||
Total deposits |
1,547 | (3,108 | ) | (1, 561 | ) | |||||||
FHLB advances |
1,048 | (142 | ) | 906 | ||||||||
Notes payable and other borrowings |
512 | 71 | 583 | |||||||||
Junior subordinated debentures |
24 | 27 | 51 | |||||||||
|
|
|
|
|
|
|||||||
Total interest-bearing liabilities |
3,131 | (3,152 | ) | (21 | ) | |||||||
|
|
|
|
|
|
|||||||
Net interest income |
$ | 12,841 | $ | (569 | ) | $ | 12,272 | |||||
|
|
|
|
|
|
Interest Income . Our total interest income increased $12.3 million, or 20.5%, to $71.9 million for the year ended December 31, 2012 from $59.6 million for the year ended December 31, 2011. The following table sets forth the major components of our interest income for the years ended December 31, 2012 and 2011 and the year-over-year variations in such categories of interest income:
For the Year Ended
December 31, |
Variance | |||||||||||
2012 | 2011 | 2012 v. 2011 | ||||||||||
(dollars in thousands) |
||||||||||||
Interest Income: |
||||||||||||
Interest and fees on loans |
$ | 69,494 | $ | 57,263 | $ | 12,231 | ||||||
Interest on taxable securities |
1,357 | 1,767 | (410 | ) | ||||||||
Interest on nontaxable securities |
825 | 522 | 303 | |||||||||
Interest on federal funds sold and other |
214 | 87 | 127 | |||||||||
|
|
|
|
|
|
|||||||
Total interest income |
$ | 71,890 | $ | 59,639 | $ | 12,251 | ||||||
|
|
|
|
|
|
The 21.4% increase in our interest and fees on loans for the year ended December 31, 2012 from the year ended December 31, 2011 was primarily attributable to a $258.7 million increase in the average balance of our loans to $1.2 billion during fiscal 2012 as compared with the average balance of $920.3 million for fiscal 2011. The increase resulted from our acquisition of an aggregate of $180.4 million of loans in the I Bank Holding Company transaction in April 2012 and The Community Group transaction in October 2012 and the organic growth of our loan portfolio.
The interest we earned on taxable securities, which consists primarily of government agency securities, decreased 23.2% for the year ended December 31, 2012 due primarily to a lower portfolio yield, which decreased to 1.71% from 2.52% for the year ended December 31, 2011. The decline in yield occurred as we reinvested the proceeds of maturing securities at the lower interest rates that were available in a declining market interest rate environment.
57
The interest we earned on nontaxable securities during fiscal 2012 increased by 58.0% from fiscal 2011 primarily as a result of an increase in the average portfolio balance as we altered the allocation of capital invested in investment securities, increasing the percentage of our portfolio held in obligations of Texas state and municipal governmental subdivisions in order to diversify our investment security portfolio and enhance yield. These securities consist primarily of general obligation bonds issued by independent school districts located in Texas that are guaranteed by the Texas Permanent School Fund. Bonds guaranteed by that fund are currently rated AAA by Standard & Poors Ratings Services. The average balance of nontaxable securities increased by $11.1 million to $25.4 million for the year ended December 31, 2012 from $14.3 million for the year ended December 31, 2011.
Interest Expense . Total interest expense on our interest-bearing liabilities decreased $21,000, or 0.2%, to $13.3 million for the year ended December 31, 2012 from $13.4 million in the prior year. The following table sets forth the major components of our interest expense for the year ended December 31, 2012 and the year ended December 31, 2011 and the year-over-year variations in such categories of interest expense:
For the Year Ended
December 31, |
Variance | |||||||||||
2012 | 2011 | 2012 v. 2011 | ||||||||||
(dollars in thousands) |
||||||||||||
Interest Expense |
||||||||||||
Interest on deposits |
$ | 8,351 | $ | 9,912 | $ | (1,561 | ) | |||||
Interest on FHLB advances |
2,383 | 1,477 | 906 | |||||||||
Interest on notes payable and other borrowings |
2,072 | 1,489 | 583 | |||||||||
Interest on junior subordinated debentures |
531 | 480 | 51 | |||||||||
|
|
|
|
|
|
|||||||
Total interest expense |
$ | 13,337 | $ | 13,358 | $ | (21 | ) | |||||
|
|
|
|
|
|
Interest expense on deposits for fiscal 2012 decreased by $1.6 million, or 15.8%, primarily as a result of a decrease in the weighted-average rate of interest we paid on our deposits, although the effect of that decrease was partially offset by a 30.5% year-over-year increase in our average balance on our interest-bearing checking accounts attributable to our two acquisitions in 2012 and organic deposit growth. The average rate on our deposits decreased by 35 basis points to 0.83% on average interest-bearing deposits of $1.0 billion for fiscal 2012 from 1.18% on average interest-bearing deposits of $843.3 million in fiscal 2011. This decrease in cost of funds for this source of funding primarily resulted from lower market interest rates and the 29.6% increase in the portion of deposits represented by average balance of interest-bearing checking, savings and limited access money market accounts, on which we typically pay lower rates than those we pay on our certificates of deposit.
Interest expense on FHLB advances for fiscal 2012 increased by $906,000, or 61.3%, due primarily to a higher average balance of such advances. The average balance of our FHLB advances increased by $45.7 million primarily as a result of funding new loan originations through such advances, in part to manage interest rate risk with respect to such loans, and the assumption of $12.5 million of FHLB advances in our acquisition of I Bank Holding Company in April 2012.
Interest expense on notes payable and other borrowings for fiscal 2012 increased by $583,000, or 39.2%, primarily as a result of a higher average balance of such borrowings. The average balance of our notes payable and other borrowings increased by $10.0 million primarily as a result of an increase in our senior debt and subordinated debentures. Interest expense on junior subordinated debentures increased $51,000, or 10.6%, due to the assumption of $3.6 million of junior subordinated debt in the acquisition of The Community Group in October 2012.
58
Provision for Loan Losses
We increased our allowance for loan losses to $11.5 million as of December 31, 2012 by making provisions for loan losses totaling $3.2 million in fiscal 2012, which was a $1.5 million, or 93.0%, increase over the provision for loan losses of $1.7 million we made in fiscal 2011. The increase in our allowance for loan losses was made as a result of the organic growth in our loan portfolio. The effect of the provision for loan losses in fiscal 2012 on our allowance for loan losses was partially offset by net charge-offs for that period of $766,000, which net charge-offs were 0.06% of our average loans outstanding during such period. The provision for loan losses in fiscal 2011 had been partially offset by net charge-offs of $993,000 million during that period. Our net charge-offs were lower in fiscal 2012, largely as a result of improvement in the quality of our loan portfolio.
We made an unallocated provision for loan losses of $227,000 in fiscal 2012 to serve as a buffer against the risk of loss inherent in lending as our loan portfolio grew and based on our assessment of historical loan loss rates. The balance of the provision for loan losses was made based on our assessment of the credit quality of our loan portfolio and in view of the amount of our net charge-offs in that period. We did not make any specific provision for loan losses with respect to the loans acquired in our two acquisitions completed in 2012 because, in accordance with purchase accounting standards, we recorded the loans acquired in those acquisitions at fair value and determined that our fair value adjustments appropriately reflected the probability of losses on those loans as of the acquisition date.
Noninterest Income
Noninterest income increased $1.5 million, or 18.9%, to $9.2 million for fiscal 2012 from $7.7 million for fiscal 2011. This increase resulted primarily from a 55.1% year-over-year increase in our mortgage fee income and a 60.9% year-over-year increase in gain on the sale of Adriatica real property, which was partially offset by losses on the sale of other real estate and a corporate aircraft versus gains on the sale of other real estate recognized during fiscal 2011. The following table sets forth the major components of our noninterest income for fiscal 2012 and fiscal 2011 and the year-over-year variations in such categories of noninterest income:
(dollars in thousands) |
For the Year
Ended
December 31, |
Variance | ||||||||||
2012 | 2011 | 2012 v. 2011 | ||||||||||
Noninterest Income |
||||||||||||
Service charges on deposit accounts |
$ | 3,386 | $ | 3,383 | $ | 3 | ||||||
Mortgage fee income |
4,116 | 2,654 | 1,462 | |||||||||
Bargain purchase gain on acquisition of banks |
| | | |||||||||
(Loss) gain on other real estate transactions |
(175 | ) | 104 | (279 | ) | |||||||
Gain on Adriatica real estate transactions |
1,310 | 814 | 496 | |||||||||
(Loss) gain on sale of premises and equipment |
(343 | ) | 21 | (364 | ) | |||||||
Increase in cash surrender value of bank owned life insurance |
327 | 330 | (3 | ) | ||||||||
All other noninterest income |
547 | 402 | 145 | |||||||||
|
|
|
|
|
|
|||||||
Total noninterest income |
$ | 9,168 | $ | 7,708 | $ | 1,460 | ||||||
|
|
|
|
|
|
Service charges on deposit accounts . Service charges on deposit accounts were consistent at $3.4 million for fiscal 2012 and fiscal 2011 .
Mortgage fee income . Income from our mortgage brokerage operations for fiscal 2012 increased 55.1% over the income from those operations for fiscal 2011. Mortgage fee income results from our share of fees paid in connection with mortgage loans that we originate and promptly sell, which increased as a result of the addition of new mortgage brokerage personnel and increases in referrals from the Banks personnel, as well as increased demand for refinancings of existing mortgage loans and, to a lesser extent, for new purchase loans.
59
Gain on Adriatica real estate transactions. We sold four parcels of property of the Adriatica real estate in fiscal 2012, recognizing an aggregate gain on the sales of $1.3 million. In fiscal 2011, we recognized a gain of $699,000 when we acquired the Adriatica real property in a deed-in-lieu-of foreclosure transaction in June 2011 and recognized a gain of $115,000 on the sale of a tract of land and associated interest in common areas to a company controlled by certain officers and directors of our Company. See CERTAIN RELATIONSHIPS AND RELATED PERSONS TRANSACTIONSRelated Person Transactions.
Loss and gain on sale of premises and equipment. During fiscal 2012, in connection with its acquisition of a twin engine, turbo prop aircraft, the Bank sold the single engine turbo prop aircraft it previously owned. A loss of $348,000 was recognized on the sale.
All other noninterest income. During fiscal 2012, we sold a branch located in an area that we determined was more effectively served by our other locations, recognizing a $38,000 gain. No comparable transaction occurred in fiscal 2011.
Noninterest Expense
Noninterest expense increased $8.5 million, or 22.1%, to $47.2 million for fiscal 2012 from $38.6 million for fiscal 2011. The following table sets forth the major components of our noninterest expense for fiscal 2012 and fiscal 2011 and the year-over-year variations in such categories of noninterest expense:
(dollars in thousands) |
For the Year Ended
December 31, |
Variance | ||||||||||
2012 | 2011 | 2012 v. 2011 | ||||||||||
Noninterest Expense |
||||||||||||
Salaries and employee benefits |
$ | 26,569 | $ | 21,118 | $ | 5,451 | ||||||
Occupancy |
7,317 | 6,776 | 541 | |||||||||
Data processing |
1,198 | 850 | 348 | |||||||||
FDIC assessment |
800 | 1, 238 | (438 | ) | ||||||||
Advertising and public relations |
626 | 589 | 37 | |||||||||
Communications |
1,334 | 1,074 | 260 | |||||||||
Net other real estate owned expenses (including taxes) |
220 | 403 | (183 | ) | ||||||||
Net expenses of operations of IBG Adriatica |
832 | 871 | (39 | ) | ||||||||
Impairment of other real estate |
94 | 184 | (90 | ) | ||||||||
Amortization of core deposit intangibles |
656 | 567 | 89 | |||||||||
Professional fees |
1,104 | 971 | 133 | |||||||||
Acquisition expense, including legal |
1,401 | | 1,401 | |||||||||
Other |
5,009 | 3, 998 | 1,011 | |||||||||
|
|
|
|
|
|
|||||||
Total noninterest expense |
$ | 47,160 | $ | 38,639 | $ | 8,521 | ||||||
|
|
|
|
|
|
Salaries and employee benefits expense . Salaries and employee benefits expense, which historically has been the largest component of our noninterest expense, increased in fiscal 2012 by 25.8% from our salary and employee benefits expense in fiscal 2011. The increase was primarily attributable to an increase in the number of our full-time equivalent employees during fiscal 2012, in large part resulting from our two acquisitions and, in the third quarter of fiscal 2011 and the second quarter of fiscal 2012, the addition of lending teams in high growth markets. In addition, we accrued higher bonuses in fiscal 2012 than it did in fiscal 2011 as a result of an increase in our profitability, increased mortgage loan production and certain performance targets being met during fiscal 2012.
Occupancy expense . Occupancy expense increased 8.0% in fiscal 2012 compared with fiscal 2011. This increase resulted from higher maintenance contract expense and building lease expenses, attributable in part to our two acquisitions and the establishment of our Dallas location in 2012.
60
Data processing expense. Our data processing expense for fiscal 2012 was up 40.9% over fiscal 2011 because of increased charges of our core service provider due to the increase in the number of our branches and users, as well as expenses incurred in the enhancement of our internet banking capability.
Communications expense. Communications expense for the year ended December 31, 2012, increased by 24.2% over the prior year as a result of additional expenses associated with new branches and employees related to the two acquisitions that we completed in 2012.
FDIC insurance assessment expense. Our FDIC insurance assessment expense for fiscal 2012 decreased by 35.4% from the amount of that expense for fiscal 2011. This decrease in the assessment resulted from a reduction in the rate at which the Banks deposit insurance assessment is calculated under the mandates of the Dodd-Frank Wall Street Reform and Consumer Protection Act for banks of our size, overall condition and asset quality.
Net other real estate owned expenses. Our net other real estate owned expenses (which exclude expenses relating to the Adriatica real estate we own) decreased $183,000 in fiscal 2012 compared with fiscal 2011 as a result of the mix of the type of properties constituting our other real estate owned, with a greater proportion of that real estate being undeveloped land, which has lower associated maintenance and other costs than does developed property. Such expenses are net of any rental income received.
Net expenses from the operations of IBG Adriatica . Our expenses associated with the operation of Adriatica real property include primarily maintenance, insurance, construction and tax expenses, some of which expenses were incurred in preparing portions of the property for sale to third parties. A portion of the property includes buildings from which we realize rental income, and the amounts shown for this category in the immediately preceding table are our expenses, net of that rental income. The gains we have recognized from the sale of portions of the Adriatica property are not netted against these expenses and are reflected in our consolidated statements of income as noninterest income. Our net expenses for fiscal 2012 decreased by $39,000, or 4.5%, over the net expenses for fiscal 2011.
We have forecast that if we continue to hold all of the Adriatica real property we currently hold and do not sell one or more parcels of that real property, based on current interest and local property tax rates and current levels of other expenses, we will incur net operating expenses with respect to IBG Adriatica of approximately $700,000 for each of fiscal 2013 and fiscal 2014. Although the IBG Adriatica operating expenses adversely affect our net income, we anticipate that over the next two years we will be able to sell all or a significant portion of the property at a gain and eliminate a significant portion, if not all, of the operating expenses that we are currently incurring with respect to the property.
Acquisition expense. We incurred $705,000 of acquisition expenses in fiscal 2012 in connection with our acquisition of I Bank Holding Company and $696,000 of such expenses in connection with our acquisition of The Community Group, which was consummated in October 2012. These expenses included legal fees of approximately $318,000, data processing contract termination fees of approximately $1.0 million, and valuation and other professional fees of approximately $61,000. We did not complete an acquisition in fiscal 2011.
Other noninterest expense. Other noninterest expense for fiscal 2012 increased by 25.3% as a result of higher charitable contributions, travel expenses, deposit promotion costs and correspondent bank service charges, partially offset by a $97,000 refund from the IRS related to an employee payroll tax issue that was settled in 2011.
Pro Forma Income Tax Expense and Net Income
As a result of our status as an S corporation as discussed above, we had no federal income tax expense for fiscal 2012 or 2011. We have determined that had we been taxed as a C corporation and paid federal income taxes for the year ended December 31, 2012 and 2011, our effective federal income tax rates would have been
61
30.1% and 31.7% for the years ended December 31, 2012 and 2011, respectively. These pro forma effective rates reflect a federal income tax rate of 34.0% on corporate income and the fact that a portion of our net income in fiscal 2012 and 2011 was derived from nontaxable investment securities and life insurance income. Our net income for fiscal 2012 and 2011 was $17.4 million and $13.7 million, and our tax-exempt interest income for such periods was $0.8 million and $0.5 million, respectively. Had we been subject to federal income taxes during the years ended December 31, 2012 and 2011, on a pro forma basis, our provision for federal income taxes would have been $5.2 million for the year ended December 31, 2012 and $4.3 million for the year ended December 31, 2011. The increase in such pro forma provision for federal income taxes would have resulted primarily from the increase in our net income for fiscal 2012. As a result of the foregoing factors, our pro forma net income, (after federal income taxes), for the year ended December 31, 2012 and 2011 would have been $12.2 million and $9.4 million, respectively.
Discussion and Analysis of Results of Operations for the Years Ended December 31, 2011 and December 31, 2010
The following discussion and analysis of our results of operations compares the year ended December 31, 2011 with the year ended December 31, 2010.
Net Income
Our net income increased by $584,000, or 4.5%, to $13.7 million for the year ended December 31, 2011 from $13.1 million for the year ended December 31, 2010. The increase resulted from an $8.2 million increase in net interest income and a $2.4 million decrease in the provision for loan losses, substantially offset by a $4.4 million decrease in noninterest income and a $5.6 million increase in noninterest expense. Noninterest income in fiscal 2010 included a $6.7 million gain on acquisitions made in that year.
Net Interest Income
We earned net interest income of $46.3 million in fiscal 2011, an increase of $8.2 million, or 21.5%, from $38.1 million in fiscal 2010. The increase in net interest income was due to a higher level of interest-earning assets in fiscal 2011 compared with fiscal 2010. The average balance of interest-earning assets in 2011 increased by $188.8 million, or 22.0%, to $1.0 billion from $0.9 billion in fiscal 2010. This increase in our interest-earning assets was largely due to having the benefit of the results of the operations of Town Center Bank, which we acquired on July 31, 2010, and of Farmersville Bancshares, which we acquired on September 30, 2010, included in our results of operations for a full year in fiscal 2011, as well as organic growth in our interest-earning assets. In addition, our interest rate spread increased by one basis point to 4.28% for fiscal 2011 from 4.27% for fiscal 2010. That improvement in the interest rate spread was due to our cost of funds declining by 34 basis points, to 1.41% for fiscal 2011 from 1.75% for fiscal 2010, versus a 33 basis point decline in the yield on interest-earning assets to an average rate of 5.69% for fiscal 2011 from 6.02% for fiscal 2010. Our weighted-average yield on our interest-earning assets for fiscal 2011 decreased as we redeployed the proceeds of amortizing and maturing assets and other funds in a lower rate environment.
62
Average Balance Sheet, Interest and Yield/Rate Analysis. The following table presents average balance sheet information, interest income, interest expense and the corresponding average yields earned and rates paid for the years ended December 31, 2011 and December 31, 2010. The average balances are principally daily averages and, for loans, include both performing and nonperforming balances.
For the Year Ended December 31, | ||||||||||||||||||||||||
2011 | 2010 | |||||||||||||||||||||||
Average
Outstanding Balance |
Interest |
Yield/
Rate |
Average
Outstanding Balance |
Interest |
Yield/
Rate |
|||||||||||||||||||
(dollars in thousands) | ||||||||||||||||||||||||
Interest-earning assets: |
||||||||||||||||||||||||
Loans (1) |
$ | 920,296 | $ | 57,263 | 6.22 | % | $ | 775,279 | $ | 49,614 | 6.40 | % | ||||||||||||
Taxable securities |
70,042 | 1,767 | 2.52 | 51,626 | 1,903 | 3.69 | ||||||||||||||||||
Nontaxable securities |
14,314 | 522 | 3.65 | 3,804 | 147 | 3.86 | ||||||||||||||||||
Federal funds sold and other |
43,039 | 87 | 0.20 | 28,179 | 70 | 0.25 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Total interest-earning assets |
1,047,691 | 59,639 | 5.69 | 858,888 | 51,734 | 6.02 | ||||||||||||||||||
Noninterest-earning assets |
133,002 | 110,434 | ||||||||||||||||||||||
|
|
|
|
|||||||||||||||||||||
Total assets |
$ | 1,180,693 | $ | 969,322 | ||||||||||||||||||||
|
|
|
|
|||||||||||||||||||||
Interest-bearing liabilities: |
||||||||||||||||||||||||
Checking accounts |
$ | 443,890 | $ | 5,082 | 1.14 | % | $ | 326,563 | $ | 5,198 | 1.59 | % | ||||||||||||
Savings accounts |
86,080 | 926 | 1.08 | 47,656 | 645 | 1.35 | ||||||||||||||||||
Limited access money market accounts |
27,525 | 132 | 0.48 | 20,304 | 136 | 0.67 | ||||||||||||||||||
Certificates of deposit |
285,808 | 3,772 | 1.32 | 289,841 | 4, 800 | 1.66 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Total deposits |
843,303 | 9,912 | 1.18 | 684,364 | 10,779 | 1.58 | ||||||||||||||||||
FHLB of Dallas advances |
59,329 | 1,477 | 2.49 | 63,132 | 1,425 | 2.26 | ||||||||||||||||||
Notes payable and other borrowings |
30,030 | 1,489 | 4.96 | 20,105 | 981 | 4.88 | ||||||||||||||||||
Junior subordinated debentures |
14,538 | 480 | 3.30 | 14,538 | 484 | 3.33 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Total interest-bearing liabilities |
947,200 | 13,358 | 1.41 | 782,139 | 13,669 | 1.75 | ||||||||||||||||||
Noninterest bearing checking accounts |
148,700 | 116,196 | ||||||||||||||||||||||
Noninterest bearing liabilities |
5,871 | 2,637 | ||||||||||||||||||||||
Stockholders equity |
78,922 | 68,350 | ||||||||||||||||||||||
|
|
|
|
|||||||||||||||||||||
Total liabilities and equity |
$ | 1,180,693 | $ | 969,322 | $ | |||||||||||||||||||
|
|
|
|
|
|
|
|
|||||||||||||||||
Net interest income |
$ | 46,281 | $ | 38,065 | ||||||||||||||||||||
|
|
|
|
|||||||||||||||||||||
Net interest rate spread |
4.28 | % | 4.27 | % | ||||||||||||||||||||
Net interest margin (2) |
4.42 | 4.43 | ||||||||||||||||||||||
Average interest-earning assets to average interest-bearing liabilities |
110.61 | 109.81 |
(1) | Average loan balances include nonaccrual loans. |
(2) | Net interest margins for the years presented represent: (i) the difference between interest income on interest-earning assets and the interest expense on interest-bearing liabilities, divided by (ii) average interest-earning assets for the year. |
63
Interest Rates and Operating Interest Differential . Increases and decreases in interest income and interest expense result from changes in average balances (volume) of interest-earning assets and interest-bearing liabilities, as well as changes in average interest rates. The following table shows the effect that these factors had on the interest earned in our interest-earning assets and the interest incurred on our interest-bearing liabilities. The effect of changes in volume is determined by multiplying the change in volume by the previous years average rate. Similarly, the effect of rate changes is calculated by multiplying the change in average rate by the previous years volume. For purposes of this table, changes attributable to both volume and rate, which cannot be segregated, have been allocated to the changes due to volume and the changes due to rate in proportion to the relationship of the absolute dollar amounts of change in each.
For the
Year Ended December 31, 2011 vs. 2010 |
||||||||||||
Increase (Decrease)
Due to |
Total
Increase (Decrease) |
|||||||||||
Volume | Rate | |||||||||||
(dollars in thousands) | ||||||||||||
Interest-earning assets: |
||||||||||||
Loans |
$ | 9,056 | $ | (1,407 | ) | $ | 7,649 | |||||
Taxable securities |
565 | (701 | ) | (136 | ) | |||||||
Nontaxable securities |
384 | (9 | ) | 375 | ||||||||
Federal funds sold and other |
32 | (15 | ) | 17 | ||||||||
|
|
|
|
|
|
|||||||
Total interest-earning assets |
$ | 10,037 | $ | (2,132 | ) | $ | 7,905 | |||||
|
|
|
|
|
|
|||||||
Interest-bearing liabilities: |
||||||||||||
Checking accounts |
$ | 1,573 | $ | (1,689 | ) | $ | (116 | ) | ||||
Savings accounts |
435 | (154 | ) | 281 | ||||||||
Limited access money market accounts |
41 | (45 | ) | (4 | ) | |||||||
Certificates of deposit |
(44 | ) | (984 | ) | (1,028 | ) | ||||||
|
|
|
|
|
|
|||||||
Total deposits |
2,005 | (2,872 | ) | (867 | ) | |||||||
FHLB advances |
(89 | ) | 141 | 52 | ||||||||
Notes payable and other borrowings |
737 | (229 | ) | 508 | ||||||||
Junior subordinated debentures |
| (4 | ) | (4 | ) | |||||||
|
|
|
|
|
|
|||||||
Total interest-bearing liabilities |
2,653 | (2,964 | ) | (311 | ) | |||||||
|
|
|
|
|
|
|||||||
Net interest income |
$ | 7,384 | $ | 832 | $ | 8,216 | ||||||
|
|
|
|
|
|
Interest Income . Our total interest income increased $7.9 million, or 15.3%, to $59.6 million in fiscal 2011 from $51.7 million in fiscal 2010. The following table sets forth the major components of our interest income for the years ended December 31, 2011 and 2010 and the year-over-year variations in such categories of interest income:
For the
Year Ended |
||||||||||||
December 31, | Variance | |||||||||||
2011 | 2010 | 2011 v. 2010 | ||||||||||
(dollars in thousands) | ||||||||||||
Interest Income: |
||||||||||||
Interest and fees on loans |
$ | 57,263 | $ | 49,614 | $ | 7,649 | ||||||
Interest on taxable securities |
1,767 | 1,903 | (136 | ) | ||||||||
Interest on nontaxable securities |
522 | 147 | 375 | |||||||||
Interest on federal funds sold and other |
87 | 70 | 17 | |||||||||
|
|
|
|
|
|
|||||||
Total interest income |
$ | 59,639 | $ | 51,734 | $ | 7,905 | ||||||
|
|
|
|
|
|
64
Interest and fee income on our total loan portfolio for fiscal 2011 increased by 15.4% compared with such income in fiscal 2010, primarily as a result of an increase of $145.0 million, or 18.7%, in the average balance of our loans for fiscal 2011 to $920.3 million as compared with $775.3 million for fiscal 2010. That increase resulted in part from the organic growth of our loan portfolio and the acquisition of loans of $67.5 million in the Town Center Bank and Farmersville Bancshares acquisitions during the third quarter of fiscal 2010.
We experienced a 7.1% decrease in the interest we earned on taxable securities in fiscal 2011. That decrease occurred as a result of a lower average yield on such securities, although a higher average balance of taxable securities available for sale partially offset the effect of that lower average yield. The average balance on taxable securities increased by $18.4 million to $70.0 million for fiscal 2011 from $51.6 million for fiscal 2010. The average yield on such securities decreased to 2.52% for fiscal 2011 from 3.69% for fiscal 2010. The decline in the yield occurred as we reinvested the proceeds of maturing securities in securities bearing interest at the lower interest rates that were available in a declining interest rate environment.
Our interest on nontaxable securities increased 255.1% in fiscal 2011 over fiscal 2010 primarily as a result of an increase in the average nontaxable securities portfolio balance in fiscal 2011 over fiscal 2010, which increase occurred as we altered the allocation of capital invested in investment securities, increasing the percentage of our portfolio held in obligations of Texas state and municipal governmental subdivisions in order to diversify our investment securities portfolio and enhance yield. These securities consist of primarily general obligation bonds issued by independent school districts located in Texas and are guaranteed by the Texas Permanent School Fund. Bonds guaranteed by that fund are currently rated AAA by Standard & Poors Ratings Services. The average balance of nontaxable securities increased by $10.5 million to $14.3 million for fiscal 2011 from $3.8 million for fiscal 2010.
Interest Expense . Our total interest expense on interest-bearing liabilities decreased $311,000, or 2.3%, to $13.4 million in fiscal 2011 from $13.7 million in fiscal 2010. The following table sets forth the major components of our interest expense for fiscal 2011 and fiscal 2010 and the year-over-year variations in such categories of interest expense:
For the
Year Ended December 31, |
Variance | |||||||||||
2011 | 2010 | 2011 v. 2010 | ||||||||||
(dollars in thousands) | ||||||||||||
Interest Expense |
||||||||||||
Interest on deposits |
$ | 9,912 | $ | 10,779 | $ | (867 | ) | |||||
Interest on FHLB advances |
1,477 | 1,425 | 52 | |||||||||
Interest on notes payable and other borrowings |
1,489 | 981 | 508 | |||||||||
Interest on junior subordinated debentures |
480 | 484 | (4 | ) | ||||||||
|
|
|
|
|
|
|||||||
Total interest expense |
$ | 13,358 | $ | 13,669 | $ (311 | ) | ||||||
|
|
|
|
|
|
Deposit interest expense for fiscal 2011 decreased 8.0% from fiscal 2010 as a result of a lower weighted-average rate on interest-bearing deposits, which lower rate was partially offset by an increase of $158.9 million, or 23.2%, in our average interest-bearing deposit balance to $843.3 million in fiscal 2011 from an average of $684.4 million in fiscal 2010. The decrease in our cost of funds from interest-bearing deposits was primarily attributable to lower market interest rates and the increase in the portion of all interest-bearing deposits represented by interest-bearing checking, savings and money market accounts, on which we typically pay lower rates than those we pay on our certificates of deposit. The average balance of our interest-bearing checking accounts increased by $117.3 million to $443.9 million for 2011, while savings accounts increased by $38.4 million to $86.1 million for 2011. The increase in our average interest-bearing deposit balance in fiscal 2011 was primarily attributable to the inclusion for all of fiscal 2011 of deposits assumed in the Town Center Bank and Farmersville Bancshares acquisitions in the third quarter of fiscal 2010, as well as organic growth in our interest-bearing deposits.
65
Interest expense on FHLB advances for fiscal 2011 increased by $0.1 million, or 3.6%, due to the higher average rate that we paid on such advances, the effect of which was partially offset by a lower average balance of those advances, which decreased by $3.8 million to $59.3 million for fiscal 2011. The average rate on those advances increased by 23 basis points to 2.49% for fiscal 2011. The higher average rate was attributable to new intermediate-term (3- to 5-year term) advances.
In addition, the interest expense on our notes payable and other borrowings for fiscal 2011 increased by $508,000, or 51.8%, as a result of primarily a higher average balance, partially offset by a lower average rate. The average balance of our notes payable and other borrowings increased by $9.9 million primarily as a result of the financing received from an unaffiliated commercial bank in connection with the acquisition of the Adriatica-related loans in June 2011 and the issuance of subordinated debt in fiscal 2011 to increase capital.
Provision for Loan Losses
We increased our allowance for loan losses to $9.1 million as of December 31, 2011 from a balance of $8.4 million as of December 31, 2010 as our loan portfolio grew. The increase was made through provisions for loan losses totaling $1.7 million in fiscal 2011, the effect of which on our allowance for loan losses was offset to a significant degree by net charge-offs of $1.0 million in fiscal 2011. Our provision for loan losses in fiscal 2010 was $4.0 million. The lower provision for loan losses in fiscal 2011 reflects lower loan losses in fiscal 2011 than in fiscal 2010, which enabled us to maintain an appropriate allowance for loan losses while making the provision described above. The lower loan losses resulted from improvements in borrowers ability to perform and the collection of problem assets. We had made a provision of $4.0 million in fiscal 2010 to absorb $2.4 million in net charge-offs made during fiscal 2010, largely with respect to a limited number of commercial and real estate loans, and to provide for increased risk. In addition, the provision for loan losses increased the unallocated portion of our allowance for loan losses to reflect the risk inherent in lending. We did not make any specific provision for loan losses in fiscal 2010 or fiscal 2011 with respect to the loans acquired in the Town Center Bank and Farmersville Bancshares acquisitions that we consummated in fiscal 2010 because, in accordance with purchase accounting standards, we recorded those loans at fair value at the date of acquisition.
66
Noninterest Income
Noninterest income decreased $4.4 million, or 36.6%, to $7.7 million in fiscal 2011 from $12.2 million in fiscal 2010. This decline was primarily the result of the recognition in fiscal 2010 of a $6.7 million bargain purchase gain on the acquisition of banks in the third quarter of fiscal 2010, although the effect of that decline was lessened by the increase of $913,000 in mortgage fee income in fiscal 2011 over fiscal 2010. Noninterest income from sources other than the gains on bargain purchases in the acquisitions of banks, gains on the foreclosure of the collateral securing the loans secured by the Adriatica real property and gains on real property sales recognized in fiscal 2010 increased $2.2 million, or 41.1%, in fiscal 2011 compared with fiscal 2010. The following table sets forth the major components of our noninterest income for the years ended December 31, 2011 and 2010:
For the Year
Ended
December 31, |
Variance | |||||||||||
2011 | 2010 | 2011 v. 2010 | ||||||||||
(dollars in thousands) | ||||||||||||
Noninterest Income |
||||||||||||
Service charges on deposit accounts |
$ | 3,383 | $ | 2,841 | $ | 542 | ||||||
Mortgage fee income |
2,654 | 1,741 | 913 | |||||||||
Bargain purchase gain on acquisition of banks |
| 6,692 | (6,692 | ) | ||||||||
(Loss) gain on other real estate transactions |
104 | 136 | (32 | ) | ||||||||
Gain on Adriatica real estate transactions |
814 | | 814 | |||||||||
Gain on sale of premises and equipment |
21 | 1 | 20 | |||||||||
Increase in cash surrender value of bank owned life insurance |
330 | 303 | 27 | |||||||||
All other noninterest income |
402 | 442 | (40 | ) | ||||||||
|
|
|
|
|
|
|||||||
Total noninterest income |
$ | 7,708 | $ | 12,156 | $ | (4,448 | ) | |||||
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|
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|
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Service charges on deposits . Noninterest income from service charges on deposits for fiscal 2011 increased by $542,000, or 19.1%, compared with the prior year primarily due to higher ATM-related fees and overdraft protection and other deposit-related service charges resulting from a higher number of transaction accounts.
Mortgage fee income . Income from our mortgage brokerage operations for fiscal 2011 increased by 52.4% over income for such category in fiscal 2010. That fee income increased as a result of the addition of new mortgage brokerage personnel and increases in referrals from the Banks personnel, as well as increased demand for refinancings of existing mortgage loans and for new purchase loans.
Bargain purchase gains on the acquisition of banks . We recognized an aggregate gain of $6.7 million on the acquisitions in fiscal 2010 of Town Center Bank and Farmersville Bancshares. Such gains were recognized primarily as a result of the determination, based on independent appraisals, that the value of certain of the assets acquired in such acquisitions was in excess of the purchase price of such assets. We did not acquire any banking or other institutions or significant amounts of assets in extraordinary transactions during fiscal 2011.
Gains on Adriatica real estate transactions . In December 2011, we sold a parcel of undeveloped land and an undivided interest in certain common areas of the Adriatica development, which we had acquired in June 2011, to a company controlled by certain officers and directors of our Company for a gain of $115,000. See CERTAIN RELATIONSHIPS AND RELATED PERSON TRANSACTIONSRelated Person Transactions for more information regarding this transaction. In addition, in fiscal 2011, we recognized a gain of $699,000 when we acquired the Adriatica real property in a deed-in-lieu of foreclosure transaction.
67
Noninterest Expense
Noninterest expense increased $5.6 million, or 16.9%, to $38.6 million in fiscal 2011 from $33.1 million in fiscal 2010. The following table sets forth the major components of our noninterest expense for the years ended December 31, 2011 and 2010:
For the Year Ended
December 31, |
Variance | |||||||||||
2011 | 2010 | 2011 v. 2010 | ||||||||||
(dollars in thousands) | ||||||||||||
Noninterest Expense |
||||||||||||
Salaries and employee benefits |
$ | 21,118 | $ | 17,019 | $ | 4,099 | ||||||
Occupancy |
6,776 | 5,552 | 1,224 | |||||||||
Data processing |
850 | 708 | 142 | |||||||||
FDIC assessment |
1,238 | 1,042 | 196 | |||||||||
Advertising and public relations |
589 | 483 | 106 | |||||||||
Communications |
1,074 | 843 | 231 | |||||||||
Net other real estate owned expenses (including taxes) |
403 | 825 | (422 | ) | ||||||||
Net expenses of operations of IBG Adriatica |
871 | | 871 | |||||||||
Impairment of other real estate |
184 | 805 | (621 | ) | ||||||||
Amortization of core deposit intangibles |
567 | 431 | 136 | |||||||||
Professional fees |
971 | 750 | 221 | |||||||||
Acquisition expense, including legal |
| 668 | (668 | ) | ||||||||
Other |
3,998 | 3,936 | 62 | |||||||||
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|
|
|||||||
Total noninterest expense |
$ | 38,639 | $ | 33,062 | $ | 5,577 | ||||||
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|
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Salaries and employee benefits. Our salaries and employee benefits expense, which historically has been the largest component of our noninterest expense, increased 24.1% from fiscal 2010 to fiscal 2011. The increase was attributable to an increase in the number of our full-time equivalent employees, due in large part to the additional employees of the banks we acquired in fiscal 2010. The Company also added an experienced lending team during the third quarter of fiscal 2011 to expand our commercial lending operations. In addition, the Bank paid higher total bonuses in fiscal 2011 than in fiscal 2010 as a result of the increase in our profitability, increased mortgage loan production and certain performance targets being met during fiscal 2011.
Occupancy expense . Occupancy expense increased $1.2 million, or 22.1%, as a result of higher depreciation expense on our premises and equipment, increased real estate taxes and higher utilities and other occupancy costs related to the five branches added in bank acquisitions in July and September of 2010.
Data processing expense. The 20.1% increase in data processing costs from fiscal 2010 to fiscal 2011 resulted from increased charges of our core service provider due to the increase in the number of our branches and users, as well as expenses incurred in the enhancement of our technology infrastructure.
Communications expense. Communications expense for the year ended December 31, 2011 increased by 27.4% as a result of the additional communications costs being incurred for acquired bank branches and to upgrade our communications capabilities.
FDIC insurance assessment expense . FDIC insurance assessment expense increased 18.8% in fiscal 2011 over the amount of the assessment in fiscal 2010. This increase was primarily attributable to an increase of $191.4 million, or 23.9%, in our average deposit balance to $992.0 million for fiscal 2011 from $800.6 million for fiscal 2010 as a result of organic growth in our deposit base during fiscal 2011 and the first full year of inclusion of deposit liabilities assumed in the Town Center Bank and Farmersville Bancshares acquisitions.
68
Net other real estate owned expenses . Our net other real estate expense (which exclude the expenses from operations of IBG Adriatica) decreased 51.2% in fiscal 2011 from fiscal 2010. The decrease resulted from a lower volume of foreclosures and lower costs related to the holding of other real estate owned.
Net expenses from operations of IBG Adriatica. We acquired the Adriatica real property in fiscal 2011 and, consequently, fiscal 2011 was the first fiscal year in which we had net expenses from the operation and maintenance of the Adriatica real estate. The expenses we incurred for that period were offset to a degree by rental income from buildings on the property. The gains we recognized on the sales of portions of the property were recognized as noninterest income.
Impairment of other real estate. Impairment of other real estate for fiscal 2011 decreased by $621,000, or 77.1%. The impairment expense for fiscal 2010 resulted primarily from write downs of the carrying value of certain portions of our other real estate, primarily several single-family homes. Impairments were recognized in order to facilitate a quicker sale of the properties acquired.
Professional fees. Professional fees for the year ended December 31, 2011 increased by $0.2 million, or 29.5%, due primarily to higher independent audit fees related to the Company being subject to additional audit requirements under banking regulations for fiscal 2011 as our total assets exceeded the $1 billion threshold of such requirements and, to a lesser extent, legal fees.
Acquisition expense. We incurred no acquisition expenses in fiscal 2011 as we did not complete an acquisition during that year. We had incurred $0.7 million of acquisition expenses, including legal, in fiscal 2010 relating to the acquisitions of Town Center Bank and Farmersville Bancshares.
Pro Forma Income Tax Expense and Net Income
As a result of our status as an S corporation as discussed above, we had no federal income tax expense for fiscal 2011 or fiscal 2010. We have determined that had we been taxed as a C corporation and paid federal income taxes for fiscal 2011 and fiscal 2010, our pro forma effective federal income rates would have been 31.7% for fiscal 2011 and 33.1% for fiscal 2010 in light of our federal corporate income tax rate of 35% and the fact that a portion of our net income earned during that period was from nontaxable securities and life insurance income. Our net income for fiscal 2011 and fiscal 2010 was $13.7 million and $13.1 million, respectively, our tax-exempt interest income for such periods was $0.5 million and $0.1 million, respectively, and we had nontaxable increases in the value of BOLI of $0.3 million for such periods. On a pro forma basis, our provision for federal income taxes would have been $4.3 million for each of fiscal 2011 and fiscal 2010. As a result of the foregoing factors, our pro form net income, after federal taxes, for fiscal 2011 and fiscal 2010 would have been $9.4 million and $8.8 million, respectively.
Discussion and Analysis of Financial Condition
The following discussion and analysis of our financial condition compares the year ended December 31, 2012 with the year ended December 31, 2011 and the year ended December 31, 2010.
Assets
Our total assets increased by $485.7 million, or 38.7%, to $1.7 billion as of December 31, 2012 from $1.3 billion as of December 31, 2011, primarily due to organic growth in our loan portfolio, the acquisition of $283.6 million of total assets from our two acquisitions in 2012 and a $19.4 million increase in our securities available for sale.
Our total assets increased $156.2 million, or 14.2%, to $1.3 billion as of December 31, 2011 from $1.1 billion as of December 31, 2010, primarily as a result of a $128.2 million increase in our loan portfolio, a $41.4 million increase in our securities available for sale and our $16.1 million investment in Adriatica real estate.
69
Loan Portfolio
Our loan portfolio is the largest category of our earning assets. As of December 31, 2012, 2011 and 2010, loans, net of allowance for loan losses, totaled $1.4 billion, $979.6 million and $851.7 million, respectively. The following table presents the balance and associated percentage of each major category in our loan portfolio as of December 31, 2012, 2011 and 2010:
As of December 31, | ||||||||||||||||||||||||
2012 | 2011 | 2010 | ||||||||||||||||||||||
(dollars in thousands) | Amount | % of Total | Amount | % of Total | Amount | % of Total | ||||||||||||||||||
Commercial |
$ | 169,882 | 12.32 | % | $ | 127,827 | 12.93 | % | $ | 121,805 | 14.16 | % | ||||||||||||
Real Estate: |
||||||||||||||||||||||||
Commercial real estate |
648,494 | 47.04 | 470,820 | 47.62 | 361,106 | 41.98 | ||||||||||||||||||
Commercial construction, land and land development |
97,329 | 7.06 | 79, 063 | 8.00 | 81,270 | 9.45 | ||||||||||||||||||
Residential real estate (1) |
315,349 | 22.87 | 222,929 | 22.55 | 211,297 | 24.57 | ||||||||||||||||||
Single-family interim construction |
67,920 | 4.93 | 24,592 | 2.49 | 20,402 | 2.37 | ||||||||||||||||||
Agricultural |
40,127 | 2.91 | 34,923 | 3.53 | 32,902 | 3.83 | ||||||||||||||||||
Consumer |
39,502 | 2.87 | 28,437 | 2.88 | 31,270 | 3.64 | ||||||||||||||||||
Other |
73 | | 80 | | 76 | | ||||||||||||||||||
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|
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|
|
|
|
|||||||||||||
Total loans |
$ | 1,378,676 | 100.00 | % | $ | 988,671 | 100.00 | % | $ | 860,128 | 100.00 | % | ||||||||||||
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Other items: |
||||||||||||||||||||||||
Allowance for losses |
(11,478 | ) | (9,060 | ) | (8,403 | ) | ||||||||||||||||||
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|
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Total loans, net |
$ | 1,367,198 | $ | 979,611 | $ | 851,725 | ||||||||||||||||||
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(1) | Includes mortgage loans held for sale as of December 31, 2012, 2011 and 2010 of $9.2 million, $3.0 million and $3.3 million, respectively. |
Loans prior to our allowance for loan losses increased $390.0 million, or 39.4%, to $1.4 billion as of December 31, 2012 from $988.7 million as of December 31, 2011, as a result of the organic growth of our loan portfolio and our two acquisitions in 2012. Loans prior to our allowance for loan losses increased $128.5 million, or 14.9%, to $988.7 million as of December 31, 2011 from $860.1 million as of December 31, 2010, as a result of organic growth in our loan portfolio, as we hired additional experienced lenders, expanded within our markets and benefited from increasing loan demand.
70
The following table sets forth the contractual maturities, including scheduled principal repayments, of our loan portfolio (which includes balloon notes) and the distribution between fixed and adjustable interest rate loans as of December 31, 2012:
Within One Year | One Year to Five Years | After 5 Years | Total | |||||||||||||||||||||||||||||
(dollars in thousands) |
Fixed
Rate |
Adjustable
Rate |
Fixed
Rate |
Adjustable
Rate |
Fixed
Rate |
Adjustable
Rate |
Fixed
Rate |
Adjustable
Rate |
||||||||||||||||||||||||
Commercial |
$ | 41,304 | $ | 32, 930 | $ | 47,996 | $ | 26,480 | $ | 12,151 | $ | 9, 020 | $ | 101,452 | $ | 68,430 | ||||||||||||||||
Real estate: |
||||||||||||||||||||||||||||||||
Commercial real estate |
44,076 | 23,178 | 140,296 | 109,633 | 121,371 | 209,940 | 305,743 | 342,751 | ||||||||||||||||||||||||
Commercial construction, land and land development |
18,091 | 13,098 | 34,050 | 8, 625 | 5,558 | 17,907 | 57,698 | 39,631 | ||||||||||||||||||||||||
Residential real estate |
55,751 | 11,520 | 106,796 | 21,165 | 60,977 | 59,139 | 223,524 | 91,825 | ||||||||||||||||||||||||
Single-family interim construction |
49,707 | 13,227 | 3,108 | 492 | 686 | 700 | 53,501 | 14,419 | ||||||||||||||||||||||||
Agricultural |
10, 775 | 7,746 | 10,219 | 3,862 | 2, 406 | 5,119 | 23,400 | 16,727 | ||||||||||||||||||||||||
Consumer |
16, 435 | 12,591 | 9,623 | 577 | 227 | 50 | 26,285 | 13,217 | ||||||||||||||||||||||||
Other |
73 | | | | | | 73 | | ||||||||||||||||||||||||
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Total loans |
$ | 236,212 | $ | 114,290 | $ | 352,088 | $ | 170,834 | $ | 203,376 | $ | 301,876 | $ | 791,676 | $ | 587,000 | ||||||||||||||||
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The principal categories of our loan portfolio are discussed below:
Commercial loans . We provide a mix of variable and fixed rate commercial loans. The loans are typically made to small- and medium-sized manufacturing, wholesale, retail, energy related service businesses and medical practices for working capital needs and business expansions. Commercial loans generally include lines of credit and loans with maturities of five years or less. The loans are generally made with operating cash flows as the primary source of repayment, but may also include collateralization by inventory, accounts receivable, equipment and/or personal guarantees. We plan to continue to make commercial loans an area of emphasis in our lending operations in the future.
Commercial loans increased $42.1 million, or 32.9%, to $169.9 million as of December 31, 2012 from $127.8 million as of December 31, 2011. This increase is primarily attributable to the commercial loans acquired in our acquisition of The Community Group and the loans originated by our energy lending group. Our commercial loan portfolio increased $6.0 million, or 4.9%, to $127.8 million as of December 31, 2011 from $121.8 million as of December 31, 2010, as a result of increased lending activity.
Commercial real estate loans. Our commercial real estate loans generally are used by customers to finance their purchase of office buildings, retail centers, medical facilities and mixed-use buildings. Approximately 55%, 62% and 69% of our commercial real estate loans as of December 31, 2012, 2011 and 2010, respectively, were owner-occupied. Such loans generally involve less risk than loans on investment property. We expect that commercial real estate loans will continue to be a significant portion of our total loan portfolio and an area of emphasis in our lending operations.
Our commercial real estate loans increased $177.7 million, or 37.7%, to $648.5 million as of December 31, 2012 from $470.8 million as of December 31, 2011, as a result of our two acquisitions and increased lending activity. Commercial real estate loans increased $109.7 million, or 30.4%, to $470.8 million as of December 31, 2011 from $361.1 million as of December 31, 2010, as a result of increased demand for commercial real estate loans within our markets and from increased lending activity resulting from the addition of experienced lending officers in growing markets.
71
Commercial construction, land and land development loans. Our commercial construction, land and land development loans comprise loans to fund commercial construction, land acquisition and real estate development construction. Although we continue to make commercial construction loans, land acquisition and land development loans on a selective basis, we do not expect our lending in this area to result in this category of loans being a significantly greater portion of our total loan portfolio.
Commercial construction, land and land development loans increased $18.3 million, or 23.1%, to $97.3 million as of December 31, 2012 from $79.1 million as of December 31, 2011. The December 31, 2011 balance reflected a decrease of $2.2 million, or 2.7%, from a balance of $81.3 million as of December 31, 2010. The increase in loans in this category from December 31, 2011 to December 31, 2012 resulted primarily from the I Bank Holding Company acquisition. The decrease in the aggregate amount of loans in this category that we experienced from December 31, 2010 to December 31, 2011 occurred as a result of lower demand for such loans.
Residential real estate loans. Our residential real estate loans are primarily made with respect to and secured by single-family homes, which are both owner-occupied and investor owned and include a limited amount of home equity loans, with a relatively small average loan balance spread across many individual borrowers. However, our loan portfolio also includes a number of multi-family housing real estate loans. We expect that we will continue to make residential real estate loans, with an emphasis on single-family housing loans, so long as housing values in our markets do not deteriorate from current prevailing levels and we are able to make such loans consistent with our current credit and underwriting standards.
Residential real estate loans increased $92.4 million, or 41.5%, to $315.3 million as of December 31, 2012 from $222.9 million as of December 31, 2011, which balance was an increase of $11.6 million, or 5.5%, from $211.3 million as of December 31, 2010. The increase in loans in this category from December 31, 2011 to December 31, 2012 resulted from the I Bank Holding Company acquisition and increased lending activity. The increase in the aggregate amount of loans in this category that we experienced from December 31, 2010 to December 31, 2011 occurred as a result of increased lending activity due to an increase in demand.
Single-family interim construction loans. We make single-family interim construction loans to home builders and individuals to fund the construction of single-family residences with the understanding that such loans will be repaid from the proceeds of the sale of the homes by builders or, in the case of individuals building their own homes, with the proceeds of a permanent mortgage loan. Such loans are secured by the real property being built and are made based on our assessment of the value of the property on an as-completed basis. We expect to continue to make single-family interim construction loans so long as demand for such loans continues and the market for single-family housing and the values of such properties remain stable or continue to improve in our markets.
The balance of single-family interim construction loans in our loan portfolio increased by $43.3 million, or 176.2%, from $24.6 million as of December 31, 2011 to $67.9 million as of December 31, 2012, as a result of the acquisition of these types of loans in the I Bank Holding Company transaction and as demand for new housing and new housing starts increased in our market areas during fiscal 2012. The balance of these loans increased by $4.2 million from $20.4 million as of December 31, 2010 to $24.6 million as of December 31, 2011 as we experienced the beginning of an increase in demand for new housing and new housing starts in our market areas in fiscal 2011.
Other categories of loans. Other categories of loans included in our loan portfolio include agricultural loans made to farmers and ranchers relating to their operations, consumer loans made to individuals for personal purposes, including automobile purchase loans and personal lines of credit. None of these categories of loans represents a significant portion of our total loan portfolio or represents more than 4.0% of our total loan portfolio as of December 31, 2012, 2011 or 2010.
72
Asset Quality
Nonperforming Assets. We have established procedures to assist us in maintaining the overall quality of our loan portfolio. In addition, we have adopted underwriting guidelines to be followed by our lending officers and require significant senior management review of proposed extensions of credit exceeding certain thresholds. When delinquencies exist, we rigorously monitor the levels of such delinquencies for any negative or adverse trends. Our loan review procedures include approval of lending policies and underwriting guidelines by the Board of Directors of the Bank, an annual independent loan review, approval of large credit relationships by the Banks Directors Loan Committee and loan quality documentation procedures. We, like other financial institutions, are subject to the risk that our loan portfolio will be subject to increasing pressures from deteriorating borrower credit due to general economic conditions.
We discontinue accruing interest on a loan when management of our Company believes, after considering our collection efforts and other factors, that the borrowers financial condition is such that collection of interest of that loan is doubtful. Loans are placed on nonaccrual status or charged-off at an earlier date if collection of principal or interest is considered doubtful. All interest accrued but not collected for loans, including troubled debt restructurings, that are placed on nonaccrual status or charged off is reversed against interest income. The interest on these loans is accounted for on the cash-basis or cost-recovery method, until qualifying for return to accrual. Loans are returned to accrual status when all the principal and interest amounts contractually due are brought current and future payments are reasonably assured. We did not make any changes in our nonaccrual policy during fiscal 2012, fiscal 2011 or fiscal 2010.
Placing a loan on nonaccrual status has a two-fold impact on net interest earnings. First, it may cause a charge against earnings for the interest which had been accrued in the current year but not yet collected on the loan. Second, it eliminates future interest income with respect to that particular loan from the Banks revenues. Interest on such loans is not recognized until the entire principal is collected or until the loan is returned to performing status. The Bank had $6.6 million, $4.4 million and $7.8 million in loans on nonaccrual status as of December 31, 2012, 2011 and 2010, respectively. Our loans on nonaccrual status decreased from December 31, 2010 to December 31, 2011 as a result of collections of loans by means of foreclosures and reductions in nonperforming loans by other means, including payoffs. However, we had an increase in loans on nonaccrual status from December 31, 2011 to December 31, 2012 as a result of one large loan acquired in the I Bank Holding Company acquisition and one internally originated commercial real estate loan that was placed on nonaccrual status in December 2012. The effect of these additional nonaccrual loans was partially offset by the paydown of certain residential real estate loans on nonaccrual status.
Real estate we have acquired as a result of foreclosure or by deed-in-lieu of foreclosure is classified as other real estate owned until sold. The Banks policy is to initially record other real estate at fair value less estimated costs to sell at the date of foreclosure. After foreclosure, other real estate is carried at the lower of the initial carrying amount (fair value less estimated costs to sell or lease), or at the value determined by subsequent appraisals of the other real estate.
The Bank obtains appraisals of real property which secure loans and may update such appraisals of real property securing loans categorized as nonperforming loans and potential problem loans, in each case as required by regulatory guidelines. In instances where updated appraisals reflect reduced collateral values, an evaluation of the borrowers overall financial condition is made to determine the need, if any, for possible write-downs or appropriate additions to the allowance for loan losses.
We periodically modify loans to extend the term or make other concessions to help a borrower with a deteriorating financial condition stay current on their loan and to avoid foreclosure. We generally do not forgive principal or interest on loans or modify the interest rates on loans to rates that are below market rates. Under applicable accounting standards, such loan modifications are generally classified as troubled debt restructurings.
73
The following table sets forth the allocation of our nonperforming assets among our different asset categories as of the dates indicated. We classify nonperforming loans as nonaccrual loans, loans past due 90 days or more and still accruing interest or loans modified under restructurings as a result of the borrower experiencing financial difficulties. The balances of nonperforming loans reflect the net investment in these assets, including deductions for purchase discounts.
As of December 31, | ||||||||||||
(dollars in thousands) | 2012 | 2011 | 2010 | |||||||||
Nonaccrual loans |
||||||||||||
Commercial |
$ | 218 | $ | 131 | $ | 194 | ||||||
Real estate: |
||||||||||||
Commercial real estate, construction, land and land development |
4,857 | 1,291 | 5,531 | |||||||||
Residential real estate |
894 | 2,864 | 2,079 | |||||||||
Single-family interim construction |
560 | 91 | | |||||||||
Agricultural |
| | | |||||||||
Consumer |
70 | 54 | 42 | |||||||||
Other |
| | | |||||||||
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Total nonaccrual loans (1) |
6,599 | 4,431 | 7,846 | |||||||||
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Loans delinquent 90 days or more and still accruing |
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Commercial |
| 31 | 39 | |||||||||
Real estate: |
||||||||||||
Commercial real estate, construction, land and land development |
| | | |||||||||
Residential real estate |
| | 92 | |||||||||
Single-family interim construction |
| | | |||||||||
Agricultural |
| | 2 | |||||||||
Consumer |
2 | 24 | 1 | |||||||||
Other |
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|||||||
Total loans delinquent 90 days or more and still accruing |
2 | 55 | 134 | |||||||||
|
|
|
|
|
|
|||||||
Troubled debt restructurings, not included in non-accrual loans |
||||||||||||
Commercial |
481 | 552 | 147 | |||||||||
Real estate: |
||||||||||||
Commercial real estate, construction, land and land development |
1,778 | 6,094 | 7,671 | |||||||||
Residential real estate |
2,165 | 136 | 382 | |||||||||
Single-family interim construction |
| | | |||||||||
Agricultural |
| | | |||||||||
Consumer |
9 | 12 | | |||||||||
Other |
| | | |||||||||
|
|
|
|
|
|
|||||||
Total troubled debt restructurings, not included in non-accrual loans |
4,433 | 6,794 | 8,200 | |||||||||
|
|
|
|
|
|
|||||||
Total nonperforming loans |
11, 034 | 11,280 | 16,180 | |||||||||
|
|
|
|
|
|
|||||||
Other real estate owned (Bank only): |
||||||||||||
Commercial real estate, construction, land and land development |
6,166 | 7,835 | 7,164 | |||||||||
Residential real estate |
681 | 100 | 155 | |||||||||
Single-family interim construction |
| | | |||||||||
Agricultural real estate |
| 457 | 535 | |||||||||
|
|
|
|
|
|
|||||||
Total other real estate owned |
6,847 | 8,392 | 7,854 | |||||||||
|
|
|
|
|
|
|||||||
Adriatica real estate owned |
9,727 | 16,065 | | |||||||||
|
|
|
|
|
|
|||||||
Total nonperforming assets |
$ | 27,608 | $ | 35,737 | $ | 24,034 | ||||||
|
|
|
|
|
|
|||||||
Ratio of nonperforming loans to total loans |
0.81 | % | 1.14 | % | 1.89 | % | ||||||
Ratio of nonperforming assets to total assets |
1.59 | 2.85 | 2.19 |
(1) | Nonaccrual loans include troubled debt restructurings of $3.1 million, $305,000 and $480,000 at December 31, 2012, 2011 and 2010, respectively. |
74
The balance of our nonperforming loans remained relatively stable from December 31, 2011 to December 31, 2012, as our troubled debt restructurings and loans delinquent 90 days or more and still accruing declined due to continued paydowns, while nonaccrual loans increased. The decrease of $4.9 million, or 30.3%, in nonperforming loans during fiscal 2011 resulted from collections and foreclosures .
We did not recognize any interest income on nonaccrual loans during fiscal 2012 or in fiscal 2011 while the loans were in nonaccrual status. The amount of interest we included in our net interest income for fiscal 2012 and fiscal 2011 with respect to loans classified as troubled debt restructurings was $351,000 and $350,000, respectively. Additional interest income that we would have recognized on nonaccrual loans and loans classified as troubled debt restructurings had they been current in accordance with their original terms was $277,000 and $154,000, respectively, during fiscal 2012 and fiscal 2011.
As of December 31, 2012, we had a total of 41 loans with an aggregate principal balance of $2.5 million that were not currently nonaccrual loans, 90 days past due loans or troubled debt restructurings, but where we had information about possible credit problems of the borrowers that caused our management to have serious concerns as to the ability of the borrowers to comply with present loan repayment terms and that could result in those loans becoming nonaccrual loans, 90 days past due loans or troubled debt restructurings in the future.
Upon an acquisition, we generally continue to use the classification of acquired loans classified nonaccrual or 90 days and accruing. We do not classify acquired loans as troubled debt restructurings, or TDRs, unless we modify an acquired loan subsequent to acquisition that meets the TDR criteria. Reported delinquency of our purchased loan portfolio is based upon the contractual terms of the loans.
As of December 31, 2012, we had other real estate with a carrying value of $6.8 million, down $1.6 million from the balance as of December 31, 2011. The balance as of December 31, 2011, $8.4 million, was up $0.5 million from our other real estate owned balance of $7.9 million as of December 31, 2010. The date-to-date changes in other real estate owned resulted from our ordinary course acquisition of real estate at foreclosures or in deed-in-lieu of foreclosure transactions, excluding the Adriatica real property, certain sales and adjustments to the carrying values of such assets.
We utilize an asset risk classification system in compliance with guidelines established by the state and federal banking regulatory agencies as part of our efforts to improve asset quality. In connection with examinations of insured institutions, examiners have the authority to identify problem assets and, if appropriate, classify them. There are three classifications for problem assets: substandard, doubtful, and loss. Substandard assets have one or more defined weaknesses and are characterized by the distinct possibility that the insured institution will sustain some loss if the deficiencies are not corrected. Doubtful assets have the weaknesses of substandard assets with the additional characteristic that the weaknesses make collection or liquidation in full questionable and there is a high probability of loss based on currently existing facts, conditions and values. An asset classified as loss is not considered collectable and is of such little value that continuance as an asset is not warranted. We produce a problem asset report that is reviewed by the Banks board of directors monthly. That report also includes pass/watch loans and other assets especially mentioned or OAEM. Pass/watch loans have a potential weakness that requires more frequent monitoring. OAEM credits have weaknesses that require attention. Officers and directors loan committees review these loans monthly to determine if a more severe rating is warranted.
Allowance for Loan Losses . The allowance for loan losses is established through charges to earnings in the form of a provision for loan losses. Our allowance for loan losses represents our estimate of probable and reasonably estimable loan losses inherent in loans held for investment as of the respective balance sheet date. Our methodology for assessing the adequacy of the allowance for loan losses includes a general allowance for performing loans, which are grouped based on similar characteristics, and an allocated allowance for individual impaired loans. Actual credit losses or recoveries are charged or credited directly to the allowance.
75
We establish a general allowance for loan losses that we believe to be adequate for the losses we estimate to be inherent in our loan portfolio. In making our evaluation of the credit risk of the loan portfolio, we consider factors such as the volume, growth and composition of the loan portfolio, the diversification by industry of our commercial loan portfolio, the effect of changes in the local real estate market on collateral values, trends in past dues, the experience of the lender, changes in lending policy, the effects on the loan portfolio of current economic indicators and their probable impact on borrowers, historical loan loss experience, industry loan loss experience, the amount of nonperforming loans and related collateral and the evaluation of our loan portfolio by the loan review function.
We may assign a specific allowance to individual loans based on an impairment analysis. Loans are considered impaired when it is probable that we will be unable to collect all amounts due according to the contractual terms of the loan agreement. The amount of impairment is based on an analysis of the most probable source of repayment, including the present value of the loans expected future cash flows, the estimated market value or the fair value of the underlying collateral. Loans evaluated for impairment include all commercial, real estate, agricultural loans and TDRs. Smaller balance consumer loans are collectively evaluated for impairment.
We follow a loan review program to evaluate the credit risk in the loan portfolio. Throughout the loan review process, we maintain an internally classified loan watch list, which, along with a delinquency list of loans, helps management assess the overall quality of our loan portfolio and the adequacy of the allowance for loan losses. Charge-offs occur when we deem a loan to be uncollectible.
Analysis of the Allowance for Loan Losses . The following table sets forth the allowance for loan losses by category of loan:
As of December 31, | ||||||||||||||||||||||||
(dollars in thousands) | 2012 |
% of Total
Loans (1) |
2011 |
% of Total
Loans (1) |
2010 |
% of Total
Loans (1) |
||||||||||||||||||
Commercial |
$ | 2,377 | 12.32 | % | $ | 1,259 | 12.93 | % | $ | 1,228 | 14.16 | % | ||||||||||||
Real estate: |
||||||||||||||||||||||||
Commercial real estate, construction, land and land development |
4,924 | 54.10 | 5,051 | 55.62 | 4,294 | 51.43 | ||||||||||||||||||
Residential real estate |
2,965 | 22.87 | 1,964 | 22.55 | 1,639 | 24.57 | ||||||||||||||||||
Single-family interim construction |
523 | 4.93 | 317 | 2.49 | 250 | 2.37 | ||||||||||||||||||
Agricultural |
159 | 2.91 | 209 | 3.53 | 167 | 3.83 | ||||||||||||||||||
Consumer |
278 | 2.87 | 235 | 2.88 | 293 | 3.64 | ||||||||||||||||||
Unallocated |
252 | | 25 | | 532 | | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Total allowance for loan losses |
$ | 11,478 | 100.00 | % | $ | 9,060 | 100.00 | % | $ | 8,403 | 100.00 | % | ||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
(1) | Represents the percentage of our total loans included in each loan category. |
During the period from January 1, 2010 to December 31, 2012, we increased our allowance for loan losses from $6.7 million to $11.5 million. During that period, $248.0 million of the growth in our loan portfolio occurred through the acquisition of loans in bank acquisitions. The problem assets in those acquisitions that might have required an allowance for loan loss if our Company had originated those loans were instead appropriately recorded at their fair value determined in accordance with business combination accounting guidance, as were other loans acquired in those acquisitions. As of December 31, 2012, the outstanding contractual balance of purchased impaired loans was $9.2 million, with a recorded balance of $6.9 million. Had we originated these loans and recorded a specific reserve consistent with the current fair market value discount, our ratio of allowance of loan losses to total loans would have been 1.01% rather than 0.83% as of December 31, 2012. We do not believe that any other credit metrics, trends or ratios are materially impacted by our purchased loan portfolio.
76
Our allowance for loan losses increased by $2.4 million to $11.5 million as of December 31, 2012 from $9.1 million as of December 31, 2011, in response to organic growth in our loan portfolio. As a consequence of that loan growth, we increased the unallocated portion of our allowance for loan losses by $227,000. Our allowance for loan losses increased $657,000 to $9.1 million as of December 31, 2011, from $8.4 million as of December 31, 2010. The increase resulted primarily from an increase in loss exposures with commercial real estate, construction, land and land development and residential real estate loans as of December 31, 2011, although the change in our allowance for loan losses also reflects a $507,000 decrease in the unallocated allowance for loans losses. As of December 31, 2012, impaired loans as to which we had made a specific allowance for loan losses totaled $7.6 million, compared with $10.0 million of such impaired loans as of December 31, 2011 and $7.1 million of such impaired loans as of December 31, 2010. The specific allowance for loan losses of such impaired loans was $989,000 million, $1.6 million and $1.3 million as of December 31, 2012, 2011 and 2010, respectively.
The following table provides an analysis of the provisions for loan losses, net charge-offs and recoveries for the years ended December 31, 2012, 2011 and 2010 and the effects of those items on our allowance for loan losses:
As of and for the Year Ended
December 31, |
||||||||||||
(dollars in thousands) | 2012 | 2011 | 2010 | |||||||||
Allowance for loan losses-balance at beginning of year |
$ | 9,060 | $ | 8,403 | $ | 6,742 | ||||||
|
|
|
|
|
|
|||||||
Charge-offs |
||||||||||||
Commercial |
(169 | ) | (23 | ) | (579 | ) | ||||||
Real estate: |
||||||||||||
Commercial real estate, construction, land and land development |
(484 | ) | (694 | ) | (416 | ) | ||||||
Residential real estate |
(178 | ) | (316 | ) | (837 | ) | ||||||
Single-family interim construction |
| (20 | ) | (561 | ) | |||||||
Agricultural |
| | | |||||||||
Consumer |
(86 | ) | (94 | ) | (114 | ) | ||||||
Other |
| | | |||||||||
|
|
|
|
|
|
|||||||
Total charge-offs |
(917 | ) | (1,147 | ) | (2,507 | ) | ||||||
|
|
|
|
|
|
|||||||
Recoveries: |
||||||||||||
Commercial |
26 | 17 | 15 | |||||||||
Real estate: |
||||||||||||
Commercial real estate, construction, land and land development |
68 | 35 | 3 | |||||||||
Residential real estate |
3 | | 49 | |||||||||
Single-family interim construction |
| 49 | 10 | |||||||||
Agricultural |
| | | |||||||||
Consumer |
54 | 53 | 48 | |||||||||
Other |
| | | |||||||||
|
|
|
|
|
|
|||||||
Total recoveries |
151 | 154 | 125 | |||||||||
|
|
|
|
|
|
|||||||
Net charge-offs |
(766 | ) | (993 | ) | (2,382 | ) | ||||||
|
|
|
|
|
|
|||||||
Provision for loan losses |
3,184 | 1,650 | 4,043 | |||||||||
|
|
|
|
|
|
|||||||
Allowance for loan losses-balance at end of year |
$ | 11,478 | $ | 9,060 | $ | 8,403 | ||||||
|
|
|
|
|
|
|||||||
Ratios |
||||||||||||
Net charge-offs to average loans outstanding |
0.06 | % | 0.11 | % | 0.31 | % | ||||||
Allowance for loan losses to nonperforming loans at end of year |
104.02 | 80.32 | 51.93 | |||||||||
Allowance for loan losses to total loans at end of year |
0.83 | 0.92 | 0.98 |
77
The ratio of our allowance for loan losses to total loans was 0.83% as of December 31, 2012, compared to 0.92% as of December 31, 2011, which decrease occurred as a result of net charge-offs of $766,000 occurring during fiscal 2012 and the acquisition of loans recorded at fair value. The ratio of net charge-offs to average loans outstanding decreased to 0.06% for the year ended December 31, 2012 from 0.11% for the year ended December 31, 2011 as a result of improvement in the financial condition of our borrowers and the value of the collateral securing our loans.
The ratio of our allowance for loan losses to total loans was 0.92% as of December 31, 2011, compared to 0.98% as of December 31, 2010. This ratio decreased as a result of the increase in our loan portfolio as well as net charge-offs of $1.0 million occurring during fiscal 2011. The ratio of net charge-offs to average loans outstanding decreased to 0.11% for fiscal 2011 from 0.31% for fiscal 2010 as a result of improvement in the financial condition of our borrowers and the value of the collateral securing our loans. During fiscal 2010, we experienced net charge-offs on certain commercial business loans and commercial, land development, residential and interim construction real estate loans attributable to conditions in the real estate market.
Securities Available for Sale
Our investment strategy aims to maximize earnings while maintaining liquidity in securities with minimal credit risk. The types and maturities of securities purchased are primarily based on our current and projected liquidity and interest rate sensitivity positions. The following table sets forth the book value, which is equal to fair market value because all investment securities we held were classified as available for sale as of the applicable date, and the percentage of each category of securities as of December 31, 2012, 2011 and 2010:
As of December 31, | ||||||||||||||||||||||||
2012 | 2011 | 2010 | ||||||||||||||||||||||
(dollars in thousands) |
Book
Value |
% of
Total |
Book
Value |
% of
Total |
Book
Value |
% of
Total |
||||||||||||||||||
Securities available for sale |
||||||||||||||||||||||||
U.S. Treasury securities |
$ | 3,547 | 3.13 | % | $ | 2,550 | 2.71 | % | $ | 1,030 | 1.96 | % | ||||||||||||
Government agency securities |
70,211 | 61.94 | 65,686 | 69.89 | 41,420 | 78.73 | ||||||||||||||||||
Obligations of state and municipal subdivisions |
36,814 | 32.48 | 22,325 | 23.75 | 5,998 | 11.40 | ||||||||||||||||||
Residential mortgage backed securities guaranteed by FNMA, GNMA, FHLMC and SBA |
680 | 0.60 | 3,430 | 3.65 | 4,163 | 7.91 | ||||||||||||||||||
Corporate bonds |
2,103 | 1.86 | | | | | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Total securities available for sale |
$ | 113,355 | 100.00 | % | $ | 93,991 | 100.00 | % | $ | 52,611 | 100.00 | % | ||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
78
The following table sets forth the book value, scheduled maturities and weighted average yields for our investment portfolio as of December 31, 2012:
(dollars in thousands) | Book Value |
% of Total
Investment Securities |
Weighted
Average Yield |
|||||||||
U.S. Treasury securities |
||||||||||||
Maturing within one year |
$ | | | % | | % | ||||||
Maturing in one to five years |
3,547 | 3.13 | 1.31 | |||||||||
Maturing in five to ten years |
| | | |||||||||
Maturing after ten years |
| | | |||||||||
|
|
|
|
|
|
|||||||
Total U.S. Treasury securities |
3,547 | 3.13 | 1.31 | |||||||||
|
|
|
|
|
|
|||||||
Government agency securities |
||||||||||||
Maturing within one year |
2,526 | 2. 23 | 4.45 | |||||||||
Maturing in one to five years |
45,992 | 40.57 | 1.06 | |||||||||
Maturing in five to ten years |
20,690 | 18.25 | 2.03 | |||||||||
Maturing after ten years |
1,003 | 0.88 | 0.93 | |||||||||
|
|
|
|
|
|
|||||||
Total government agency securities |
70,211 | 61.94 | 1.47 | |||||||||
|
|
|
|
|
|
|||||||
Obligations of state and municipal subdivisions |
||||||||||||
Maturing within one year |
| | | |||||||||
Maturing in one to five years |
421 | 0.37 | 1.45 | |||||||||
Maturing in five to ten years |
4,428 | 3.91 | 3.05 | |||||||||
Maturing after ten years |
31,965 | 28.20 | 3.50 | |||||||||
|
|
|
|
|
|
|||||||
Total obligations of state and municipal subdivisions |
36,814 | 32.48 | 3.42 | |||||||||
|
|
|
|
|
|
|||||||
Residential mortgage backed securities guaranteed by FNMA, GNMA, FHLMC and SBA |
||||||||||||
Maturing within one year |
1 | 0.00 | 5.19 | |||||||||
Maturing in one to five years |
20 | 0.02 | 7.39 | |||||||||
Maturing in five to ten years |
| | | |||||||||
Maturing after ten years |
659 | 0.58 | 5.90 | |||||||||
|
|
|
|
|
|
|||||||
Total residential mortgage backed securities guaranteed by FNMA, GNMA, FHLMC and SBA |
680 | 0.60 | 5.94 | |||||||||
|
|
|
|
|
|
|||||||
Corporate bonds |
||||||||||||
Maturing within one year |
| | | |||||||||
Maturing in one to five years |
| | | |||||||||
Maturing in five to ten years |
1,113 | 0.98 | 3.16 | |||||||||
Maturing after ten years |
990 | 0.87 | 2.42 | |||||||||
|
|
|
|
|
|
|||||||
Total corporate bonds |
2,103 | 1.86 | 2.81 | |||||||||
|
|
|
|
|
|
|||||||
Total investment securities |
$ | 113,355 | 100.00 | % | 2.15 | % | ||||||
|
|
|
|
|
|
79
The following table summarizes the amortized cost of securities classified as available for sale and their approximate fair values as of the dates shown:
(dollars in thousands) |
Amortized
Cost |
Gross
Unrealized Gains |
Gross
Unrealized Losses |
Fair Value | ||||||||||||
Securities available for sale |
||||||||||||||||
As of December 31, 2012: |
||||||||||||||||
U.S. Treasury securities |
$ | 3, 493 | $ | 54 | $ | | $ | 3, 547 | ||||||||
Government agency securities |
69,636 | 575 | | 70,211 | ||||||||||||
Obligations of state and municipal subdivisions |
34,908 | 2, 123 | (217 | ) | 36,814 | |||||||||||
Residential mortgage backed securities guaranteed by FNMA, GNMA, FHLMC, and SBA |
635 | 45 | | 680 | ||||||||||||
Corporate bonds |
2, 105 | 23 | (25 | ) | 2,103 | |||||||||||
|
|
|
|
|
|
|
|
|||||||||
$ | 110,777 | $ | 2,820 | $ | (242 | ) | $ | 113,355 | ||||||||
|
|
|
|
|
|
|
|
|||||||||
As of December 31, 2011: |
||||||||||||||||
U.S. Treasury securities |
$ | 2,492 | $ | 58 | $ | | $ | 2,550 | ||||||||
Government agency securities |
65,092 | 615 | (21 | ) | 65,686 | |||||||||||
Obligations of state and municipal subdivisions |
20,970 | 1,355 | | 22,325 | ||||||||||||
Residential mortgage backed securities guaranteed by FNMA, GNMA, FHLMC, and SBA |
3,275 | 155 | | 3,430 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
$ | 91,829 | $ | 2,183 | $ | (21 | ) | $ | 93,991 | ||||||||
|
|
|
|
|
|
|
|
|||||||||
As of December 31, 2010: |
||||||||||||||||
U.S. Treasury securities |
$ | 1,000 | $ | 30 | $ | | $ | 1,030 | ||||||||
Government agency securities |
40,686 | 798 | (64 | ) | 41,420 | |||||||||||
Obligations of state and municipal subdivisions |
6,063 | 71 | (136 | ) | 5,998 | |||||||||||
Residential mortgage backed securities guaranteed by FNMA, GNMA, FHLMC, and SBA |
3,996 | 168 | (1 | ) | 4,163 | |||||||||||
|
|
|
|
|
|
|
|
|||||||||
$ | 51,745 | $ | 1,067 | $ | (201 | ) | $ | 52,611 | ||||||||
|
|
|
|
|
|
|
|
Our securities available for sale, carried at fair value, increased $19.4 million, or 20.6%, during fiscal 2012 and $41.4 million, or 78.7%, during fiscal 2011. The increase in our investment portfolio from December 31, 2011 to December 31, 2012 primarily reflected an increase in government agency securities and obligations of state and municipal subdivisions. This growth in our portfolio occurred primarily as the result of growth in our assets available for investment and the acquisition of approximately $10.3 million in securities acquired in our acquisition of The Community Group, including $6.3 million in municipal securities and $2.1 million in corporate bonds. The increase in our investment securities portfolio from December 31, 2010 to December 31, 2011 occurred as we experienced significant deposit growth which, combined with our other improved liquidity metrics, allowed us to reduce our excess cash position and allocate resources to higher earning assets.
As the size of our portfolio has increased, we have changed the allocation of our capital invested in investment securities, increasing the percentage of our portfolio held in obligations of state and municipal subdivisions in order to diversify our investment securities portfolio and enhance yield without diminishing asset quality.
Cash and Cash Equivalents
Cash and cash equivalents increased $45.6 million, or 80.6%, to $102.3 million as of December 31, 2012, from $56.7 million as of December 31, 2011. Such increase in fiscal 2012 was necessary to maintain compliance with our liquidity policy of holding cash and investment securities held for sale in an amount equal to at least
80
10% of our total assets. Cash and cash equivalents decreased $29.7 million, or 34.4%, to $56.7 million as of December 31, 2011 from $86.3 million as of December 31, 2010. In fiscal 2011, such decreases occurred primarily as we funded loans made in response to higher loan demand and increases in our investment securities portfolio.
Certificates of Deposit Held in Other Banks
We owned certificates of deposit held in other banks in the amount of $7.7 million as of December 31, 2012, which we acquired in the I Bank Holding Company acquisition and which mature during 2013.
Goodwill and Core Deposit Intangible, Net
Our total goodwill was $28.7 million as of December 31, 2012, and was $11.2 million as of both December 31, 2011 and December 31, 2010. Goodwill represents the excess of the consideration paid over the fair value of the net assets acquired. The increase in our goodwill from December 31, 2011 to December 31, 2012 resulted from the acquisition of I Bank Holding Company ($13.0 million in goodwill) and the acquisition of The Community Group ($4.8 million in goodwill).
Our other intangible asset, our core deposit intangible, net, was $3.3 million as of December 31, 2012, $2.7 million as of December 31, 2011 and $3.2 million as of December 31, 2010. Our core deposit intangible is amortized on a straight-line basis over its estimated life of 10 years. The increase in the core deposit intangible, net, from December 31, 2011 to December 31, 2012 occurred as a result of the increase in our core deposit intangible of $1.1 million and $265,000 as a result of the acquisition of deposits in the I Bank Holding Company and The Community Group acquisitions, respectively, the benefit of which was partially offset by the amortization of our core deposit intangible, for that year. The decrease in our core deposit intangible, net, from December 31, 2010 to December 31, 2011 occurred as the result of the amortization of our core deposit intangible in 2011.
Liabilities
Our total liabilities increased $447.2 million, or 38.3%, to $1.6 billion as of December 31, 2012, from $1.2 billion as of December 31, 2011, primarily due to the assumption of deposit liabilities of $122.9 million in the I Bank Holding Company acquisition and $93.6 million in The Community Group acquisition. The balance of the increase is accounted for by organic growth in our deposit base, an increase in FHLB advances of $82.3 million, increases in our senior debt of $7.0 million and in our subordinated debentures of $4.7 million, and our assumption of $3.6 million in junior subordinated debentures related to trust preferred securities in The Community Group acquisition. Our total liabilities increased $146.2 million to $1.2 billion as of December 31, 2011 from $1.0 billion as of December 31, 2010, due to growth in deposits of $102.9 million, an increase in FHLB borrowings of $27.0 million and an increase in our notes payable and other borrowings of $15.4 million. We increased our FHLB borrowings for liquidity and interest rate risk management purposes in connection with funding of loans. The increase in our notes payable and other borrowings was due to refinancings, acquisitions and increasing debt capital.
Deposits
Deposits represent the Banks primary source of funds. We continue to focus on growing core deposits through our relationship driven banking philosophy and community-focused marketing programs.
Total deposits were $1.4 billion as of December 31, 2012 compared with $1.0 billion as of December 31, 2011, an increase of $360.3 million, or 35.0%. As of December 31, 2012, noninterest-bearing demand, interest-bearing checking, savings deposits and limited access money market accounts accounted for 78.5% of our total deposits, while individual retirement accounts and certificates of deposit made up 21.5% of total deposits.
81
Noninterest-bearing demand deposits totaled $259.7 million, or 18.7% of total deposits, as of December 31, 2012 compared with $168.8 million, or 16.4% of total deposits as of December 31, 2011, an increase of $90.8 million or 53.8%. The average cost of interest-bearing deposits was 0.83% per annum for fiscal 2012 compared with 1.18% for fiscal 2011.
Total deposits were $1.0 billion as of December 31, 2011 compared with $927.5 million as of December 31, 2010, an increase of $102.9 million or 11.1%. As of December 31, 2011, demand, interest-bearing checking, savings deposits, and limited access money market accounts accounted for 73.9% of total deposits, while individual retirement accounts and certificates of deposit made up 26.1% of total deposits. Noninterest-bearing demand deposits totaled $168.8 million or 16.4% of total deposits as of December 31, 2011 compared with $133.3 million, or 14.4% of total deposits, as of December 31, 2010, an increase of $35.5 million or 26.7%. The average cost of deposits was 1.18% for 2011 compared with 1.58% for 2010.
The period decrease in the average cost of deposits during the comparable periods was primarily the result of decreases in interest rates offered on certain deposit products due to decreases in average market interest rates and decreases in renewal interest rates on maturing certificates of deposit given the current low interest rate environment.
The following table summarizes our average deposit balances and weighted average rates for the periods presented:
For The Year Ended
December 31, 2012 |
For The Year Ended
December 31, 2011 |
For The Year Ended
December 31, 2010 |
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(dollars in thousands) | Balance | Percent |
Weighted
Average Rate |
Balance | Percent |
Weighted
Average Rate |
Balance | Percent |
Weighted
Average Rate |
|||||||||||||||||||||||||||
Deposit Type |
||||||||||||||||||||||||||||||||||||
Noninterest-bearing demand accounts |
$ | 203,248 | 16.78 | % | | % | $ | 148,700 | 14.99 | % | | % | $ | 116,196 | 14.51 | % | | % | ||||||||||||||||||
Interest-bearing checking accounts |
579,495 | 47.84 | 0.78 | 443,890 | 44.75 | 1.14 | 326,563 | 40.79 | 1.59 | |||||||||||||||||||||||||||
Savings accounts |
110,118 | 9.09 | 0.65 | 86,080 | 8.68 | 1.08 | 47,656 | 5.95 | 1.35 | |||||||||||||||||||||||||||
Limited access money market accounts |
32,976 | 2.72 | 0.36 | 27,525 | 2.77 | 0.48 | 20,304 | 2.54 | 0.67 | |||||||||||||||||||||||||||
Certificates of deposit |
285,564 | 23.57 | 1.05 | 285,808 | 28.81 | 1.32 | 289,841 | 36.21 | 1.66 | |||||||||||||||||||||||||||
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Total deposits |
$ | 1,211,401 | 100.00 | % | 0.83 | % | $ | 992,003 | 100.00 | % | 1.18 | % | $ | 800,560 | 100.00 | % | 1.58 | % | ||||||||||||||||||
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The following table sets forth the maturity of time deposits (including IRA deposits) of $100,000 or more as of December 31, 2012:
Maturity within: | ||||||||||||||||||||
(dollars in thousands) |
Three
Months |
Three
to Six Months |
Six to
Twelve Months |
After
Twelve Months |
Total | |||||||||||||||
Certificates of deposit, $100,000 and greater (excluding CDARS) |
$ | 29,632 | $ | 27,543 | $ | 45,415 | $ | 47,318 | $ | 149,908 | ||||||||||
CDARS |
10,009 | 3,631 | 10,084 | 1, 273 | 24, 997 | |||||||||||||||
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Total |
$ | 39,641 | $ | 31,174 | $ | 55,499 | $ | 48,591 | $ | 174,905 | ||||||||||
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Short-Term Borrowings
Our deposits have historically provided us with a major source of funds to meet the daily liquidity needs of our customers and fund growth in earning assets. However, from time to time we may also engage in short-term borrowings. We did not have any short-term borrowings outstanding at the end of any month during fiscal 2012 or fiscal 2011. The maximum amount of short-term borrowings we had outstanding at the end of any month during fiscal 2010 was $9.0 million. As a result of funding available from other sources. we have not historically needed to engage in significant short-term borrowing through sources such as federal funds purchased, securities sold under agreements to repurchase or Federal Reserve Discount Window advances to meet the daily liquidity needs of our customers or fund growth in earning assets.
FHLB Advances
In addition to deposits, we utilize FHLB advances either as a short-term funding source or a longer-term funding source and to manage our interest rate risk on our loan portfolio. FHLB advances can be particularly attractive as a longer-term funding source to balance interest rate sensitivity and reduce interest rate risk. The maximum amount of short-term FHLB advances we had outstanding at any month end during the year ended December 31, 2012, was $16.0 million.
Our FHLB borrowings totaled $164.6 million as of December 31, 2012 compared with $82.3 million as of December 31, 2011. Such increase resulted primarily from our assumption of $12.5 million in FHLB advances as a part of the acquisition of I Bank, as well as $70.0 million of intermediate-term FHLB advances obtained and used to manage our loan portfolio and reduce interest rate risk during fiscal 2012. Our FHLB borrowings also increased $27.0 million, or 48.9%, to $82.3 million as of December 31, 2011 from $55.3 million as of December 31, 2010 as a result of our funding needs for our lending activity and to manage our interest rate risk. As of December 31, 2012, 2011 and 2010, we had $267.5 million, $247.3 million and $231.5 million, respectively, in unused and available advances from the FHLB. Our FHLB advances are collateralized by assets, including a blanket pledge of certain loans with a carrying value of $524.8 million and FHLB stock. As of December 31, 2012, we had $92.7 million in undisbursed advance commitments (letters of credit) with the FHLB. The FHLB letters of credit were obtained in lieu of pledging securities to secure public fund deposits that are over the FDIC insurance limit. As of December 31, 2012, there were no disbursements against the advance commitments.
The following table provides a summary of our FHLB advances at the dates indicated:
As of
December 31, |
||||||||||||
(dollars in thousands) | 2012 | 2011 | 2010 | |||||||||
Fixed-rate, fixed term, at rates from 1.12% to 6.26%, with a weighted-average of 2.01% (maturing March, 2013 through January, 2026) |
$ | 164,601 | | | ||||||||
Fixed-rate, fixed term, at rates from 1.14% to 6.26%, with a weighted-average of 2.40% (maturing March, 2013 through January, 2026) |
| $ | 82,291 | | ||||||||
Fixed-rate, fixed term, at rates from 0.379% to 6.26%, with a weighted-average of 2.55% (maturing March, 2013 through January, 2026) |
| | $ | 55,273 |
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As of December 31, 2012, the scheduled maturities of our FHLB advances were as follows:
(dollars in thousands) | Principal | |||
Maturing Within |
Amount to
Mature |
|||
First Year |
$ | 3,027 | ||
Second Year |
20,022 | |||
Third Year |
23,000 | |||
Fourth Year |
32,529 | |||
Fifth Year |
30,000 | |||
Thereafter |
56,023 | |||
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$ | 164,601 | |||
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Other Long-Term Indebtedness
As of December 31, 2012, 2011 and 2010, we had $36.5 million, $35.8 million and $20.4 million, respectively, of long-term indebtedness (other than FHLB advances and junior subordinated debentures) outstanding, which included notes payable and subordinated debentures. The increase in our long-term indebtedness from December 31, 2011 to December 31, 2012 resulted from the incurrence of $7.0 million of debt in connection with the I Bank Holding Company acquisition and the issuance of $4.7 million of our 7.00% subordinated debentures due October 2019 to provide a portion of the funds to complete the acquisition of The Community Group, partially offset by principal payments on our senior debt and the Adriatica property acquisition loan. The $15.4 million increase in our long-term indebtedness from December 31, 2010 to December 31, 2011 occurred as a result of incurrence of $12.2 million of debt to an unaffiliated commercial bank primarily related to the acquisition of the notes secured by the Adriatica real property and the issuance of $7.7 million of our 7.00% subordinated debentures due July and October 2018 to refinance maturing debt that was supporting asset growth. The effect of the incurrence of additional debt and the issuances of the debentures discussed above on the balance of our total liabilities as of December 31, 2012 and December 31, 2011 was offset by the repayment of existing debt.
As of December 31, 2012, the scheduled principal maturities of our other long-term indebtedness are as follows:
(dollars in thousands) | Principal | |||
Maturing Within |
Amount to
Mature |
|||
First Year |
$ | 4,028 | ||
Second Year |
4,548 | |||
Third Year |
13,754 | |||
Fourth Year |
6,634 | |||
Fifth Year |
3,865 | |||
Thereafter |
3,688 | |||
|
|
|||
$ | 36,517 | |||
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Junior Subordinated Debentures
As of December 31, 2012, we had outstanding an aggregate of $18.1 million principal amount of five series of junior subordinated securities issued to five unconsolidated subsidiary trusts. As of December 31, 2011 and 2010, we had outstanding an aggregate of $14.5 million principal amount of four series of junior subordinated debentures issued to four unconsolidated subsidiary trusts. The $3.6 million increase in the amount of the junior subordinated debentures at December 31, 2012 was a result of the acquisition of The Community
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Group. Each series of debentures was purchased by one of the trusts with the net proceeds of the issuance by such trust of floating rate trust preferred securities. These junior subordinated debentures are unsecured and will mature between March 2033 and June 2037. Each of the series of debentures bears interest at a per annum rate equal to three-month LIBOR plus a spread that ranges from 1.60% to 3.25%, with a weighted average spread of 2.68%. As of December 31, 2012, the interest rate on the debentures was 3.56%, 3.19%, 2.71%, 3.56% and 1.99%, respectively. Interest on each series of these debentures is payable quarterly, although we may, from time to time defer the payment of interest on any series of these debentures. A deferral of interest payments would, however, restrict our right to declare and pay cash distributions, including dividends, on our common stock or making distributions with respect to any of our future debt instruments that rank equally or are junior to such debentures. We may redeem the debentures, which are intended to qualify as Tier 2 capital, at our option, subject to approval of the Federal Reserve.
Capital Resources and Liquidity Management
Capital Resources
Our stockholders equity is influenced by our earnings, the sales and redemptions of common stock that we make, the dividends we pay on our common stock, and, to a lesser extent, any changes in unrealized holding gains or losses occurring with respect to our securities available for sale. Our stockholders equity increased $38.5 million, or 44.8%, to $124.5 million as of December 31, 2012 from $86.0 million as of December 31, 2011, due to the retention of earnings and the issuance of $20.2 million of our common stock in January 2012 to fund the payment of a portion of the purchase price in the I Bank Holding Company acquisition and $5.0 million of our common stock in September 2012 and $3.7 million in October 2012 to fund the payment of a portion of the purchase price in our acquisition of The Community Group in October 2012. During fiscal 2012, we generated net income of $17.4 million and paid dividends of $8.7 million to our shareholders, including the amounts paid to shareholders in order to permit them to make estimated payments of their federal income tax liability associated with the items of our income passed through to them as shareholders of an S Corporation. Stockholders equity increased $10.0 million, or 13.1%, to $86.0 million as of December 31, 2011 from $76.0 million as of December 31, 2010, due to the retention of earnings. During 2011, we generated net income of $13.7 million and declared and paid dividends of $6.1 million to our shareholders. The balance of the increase in stockholders equity from December 31, 2010 to December 31, 2011 resulted primarily from a $1.3 million increase in other comprehensive income and the amortization of stock awards in the amount of $572,000.
Liquidity Management
Liquidity refers to the measure of our ability to meet the cash flow requirements of depositors and borrowers, while at the same time meeting our operating, capital and strategic cash flow needs, all at a reasonable cost. Our asset and liability management policy is intended to maintain adequate liquidity and, therefore, enhance our ability to raise funds to support asset growth, meet deposit withdrawals and lending needs, maintain reserve requirements, and otherwise sustain operations. We accomplish this through management of the maturities of our interest-earning assets and interest-bearing liabilities. We believe that our present position is adequate to meet our current and future liquidity needs.
We continuously monitor our liquidity position to ensure that assets and liabilities are managed in a manner that will meet all of our short-term and long-term cash requirements. We manage our liquidity position to meet the daily cash flow needs of customers, while maintaining an appropriate balance between assets and liabilities to meet the return on investment objectives of our shareholders. We also monitor our liquidity requirements in light of interest rate trends, changes in the economy, and the scheduled maturity and interest rate sensitivity of the investment and loan portfolios and deposits.
Our short-term and long-term liquidity requirements are primarily to fund on-going operations, including payment of interest on deposits and debt, extensions of credit to borrowers, capital expenditures and shareholder dividends. These liquidity requirements are met primarily through cash flow from operations, redeployment of
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pre-paid and maturing balances in our loan and investment portfolios, debt financing and increases in customer deposits. Our liquidity position is supported by management of liquid assets and liabilities and access to alternative sources of funds. Liquid assets include cash, interest-bearing deposits in banks, federal funds sold, securities available for sale and maturing or prepaying balances in our investment and loan portfolios. Liquid liabilities include core deposits, federal funds purchased, securities sold under repurchase agreements and other borrowings. Other sources of liquidity include the sale of loans, the ability to acquire additional national market noncore deposits, the issuance of additional collateralized borrowings such as FHLB advances, the issuance of debt securities, borrowings through the Federal Reserves discount window and the issuance of common securities. For additional information regarding our operating, investing and financing cash flows, see the Consolidated Statements of Cash Flows provided in our consolidated financial statements.
In addition to the liquidity provided by the sources described above, the Bank maintains correspondent relationships with other banks in order to sell loans or purchase overnight funds should additional liquidity be needed. As of December 31, 2012, the Bank had established federal funds lines of credit with an unaffiliated bank totaling $25 million with no amounts advanced against those lines at that time. The Bank had unsecured federal funds lines of credit with an unaffiliated bank as of December 31, 2011 and December 31, 2010 of $20 million, with no amounts advanced against those lines on either of such dates. Based on the values of stock, securities, and loans pledged as collateral, as of December 31, 2012, we had $267.5 million of additional borrowing capacity with the FHLB. In the ordinary course of the Banks operations, the Bank maintains a correspondent bank account with TIB The Independent Bankers Bank, the balance of which was approximately $25.2 million and $16.6 million as of December 31, 2011 and December 31, 2010, respectively. The balance maintained in that account as of December 31, 2012 was not significant. The correspondent account is a demand account. The normal services associated with a correspondent banking relationship, including clearing of checks, sales and purchases of participations in loans and investments and sales and purchases of federal funds.
The Company is a corporation separate and apart from the Bank and, therefore, we must provide for our own liquidity. The Companys main source of funding is dividends declared and paid to us by the Bank. Statutory and regulatory limitations exist that affect the ability of the Bank to pay dividends to us. Management believes that these limitations will not impact our ability to meet our ongoing short-term cash obligations. For additional information regarding dividend restrictions, see RISK FACTORS Risks Related to Our Business, DIVIDEND POLICY and REGULATION AND SUPERVISION.
Regulatory Capital Requirements
Our capital management consists of providing equity to support our current and future operations. We are subject to various regulatory capital requirements administered by state and federal banking agencies, including the Texas Department of Banking, Federal Reserve and the FDIC. Failure to meet minimum capital requirements may prompt certain actions by regulators that, if undertaken, could have a direct material adverse effect on our financial condition and results of operations. Under capital adequacy guidelines and the regulatory framework for prompt corrective action, we must meet specific capital guidelines that involve quantitative measures of our assets, liabilities and certain off-balance sheet items as calculated under regulatory accounting practices. Our capital amounts and classification are also subject to qualitative judgments by the regulators about components, risk weightings and other factors.
We expect that, as a result of recent developments such as the Dodd-Frank Act, we will be subject to increasingly stringent regulatory capital requirements. For further discussion of the changing regulatory framework in which we operate, see REGULATION AND SUPERVISION.
The risk-based capital standards issued by the FDIC require all state nonmember banks to have Tier 1 capital of at least 4% and total risk-based capital (Tier 1 and Tier 2) of at least 8.0% of total risk-weighted assets. Tier 1 capital generally includes common stock equity and qualifying perpetual preferred stock together with related surpluses and retained earnings, less deduction for goodwill and various other intangibles. Tier 2
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capital may consist of a limited amount of intermediate-term preferred stock, a limited amount of term subordinated debt, certain hybrid capital instruments and other debt securities, perpetual preferred stock not qualifying as Tier 1 capital, and a limited amount (no greater than 1.25% of risk weighted assets) of the general valuation allowance for loan losses. The sum of Tier 1 capital and Tier 2 capital is total risk-based capital.
The FDIC has also adopted guidelines which supplement the risk-based capital guidelines with a minimum ratio of Tier 1 capital to average total consolidated tangible assets, or leverage ratio, of 4.0% for institutions with well diversified risk, including no undue interest rate exposure; excellent asset quality; high liquidity; good earnings; and that are generally considered to be strong banking organizations, rated composite 1 under applicable federal guidelines, and that are not experiencing or anticipating significant growth. Other banking organizations are required to maintain a leverage ratio of at least 4.0%. These rules further provide that banking organizations experiencing internal growth or making acquisitions will be expected to maintain capital positions substantially above the minimum supervisory levels and comparable to peer group averages, without significant reliance on intangible assets.
The FDIC has promulgated regulations setting the levels at which an insured institution such as the Bank would be considered well-capitalized, adequately capitalized, undercapitalized, significantly undercapitalized and critically undercapitalized. We are considered well-capitalized for purposes of the applicable prompt corrective action regulations.
As of December 31, 2012, 2011 and 2010, we exceeded all capital ratio requirements under prompt corrective action and other regulatory requirements, as detailed in the table below:
As of December 31, 2012 | ||||||||||||
Actual |
Required to be
considered well capitalized |
Required to
be
considered adequately capitalized |
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Ratio | Ratio | Ratio | ||||||||||
Tier 1 capital to average assets ratio |
6.45 | % | ³ 5.00 | % | 4.00-5.00 | % | ||||||
Tier 1 capital to risk-weighted assets ratio |
8.22 | ³ 6.00 | 4.00-6.00 | |||||||||
Total capital to risk-weighted assets ratio |
10.51 | ³ 10.00 | 8.00-10.00 | |||||||||
As of December 31, 2011 | ||||||||||||
Actual |
Required to be
considered well capitalized |
Required to
be
considered adequately capitalized |
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Ratio | Ratio | Ratio | ||||||||||
Tier 1 capital to average assets ratio |
6.89 | % | ³ 5.00 | % | 4.00-5.00 | % | ||||||
Tier 1 capital to risk-weighted assets ratio |
8.59 | ³ 6.00 | 4.00-6.00 | |||||||||
Total capital to risk-weighted assets ratio |
11.19 | ³ 10.00 | 8.00-10.00 | |||||||||
As of December 31, 2010 | ||||||||||||
Actual |
Required to be
considered well capitalized |
Required to
be
considered adequately capitalized |
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Ratio | Ratio | Ratio | ||||||||||
Tier 1 capital to average assets ratio |
6.98 | % | ³ 5.00 | % | 4.00-5.00 | % | ||||||
Tier 1 capital to risk-weighted assets ratio |
8.88 | ³ 6.00 | 4.00-6.00 | |||||||||
Total capital to risk-weighted assets ratio |
11.10 | ³ 10.00 | 8.00-10.00 |
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Contractual Obligations
The following table contains supplemental information regarding our total contractual obligations as of December 31, 2012:
Payments Due | ||||||||||||||||||||
(dollars in thousands) |
Within One
Year |
One
to
Three Years |
Three
to
Five Years |
After
Five Years |
Total | |||||||||||||||
Deposits without a stated maturity |
$ | 1,091,750 | $ | | $ | | $ | | $ | 1,091,750 | ||||||||||
Time deposits |
219,973 | 58,921 | 20,096 | | 298,990 | |||||||||||||||
FHLB advances |
3,027 | 43, 022 | 62,529 | 56,023 | 164,601 | |||||||||||||||
Notes payable |
2,513 | 11,716 | 1,500 | | 15,729 | |||||||||||||||
Subordinated debt |
1,515 | 6,586 | 8,999 | 3, 688 | 20,788 | |||||||||||||||
Junior subordinated debentures |
| | | 18,147 | 18,147 | |||||||||||||||
Operating leases |
569 | 1,027 | 316 | 330 | 2,242 | |||||||||||||||
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Total contractual obligations |
$ | 1,319,347 | $ | 121,272 | $ | 93,440 | $ | 78,188 | $ | 1,612,247 | ||||||||||
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We believe that we will be able to meet our contractual obligations as they come due through the maintenance of adequate cash levels. We expect to maintain adequate cash levels through profitability, loan and securities repayment and maturity activity and continued deposit gathering activities. We have in place various borrowing mechanisms for both short-term and long-term liquidity needs.
Off-Balance Sheet Arrangements
In the normal course of business, we enter into various transactions, which, in accordance with accounting principles generally accepted in the United States, are not included in our consolidated balance sheets. However, we have only limited off-balance sheet arrangements that have, or are reasonably likely to have, a current or future material effect on our financial condition, revenues, expenses, results of operations, liquidity, capital expenditures or capital resources. The Bank enters into these transactions to meet the financing needs of our customers. These transactions include commitments to extend credit and issue standby letters of credit, which involve, to varying degrees, elements of credit risk and interest rate risk in excess of the amounts recognized in the consolidated balance sheets.
Commitments to Extend Credit . The Bank enters into contractual commitments to extend credit, normally with fixed expiration dates or termination clauses, at specified rates and for specific purposes. Substantially all of the Banks commitments to extend credit are contingent upon customers maintaining specific credit standards at the time of loan funding. The Bank minimizes its exposure to loss under these commitments by subjecting them to credit approval and monitoring procedures.
Standby Letters of Credit . Standby letters of credit are written conditional commitments that the Bank issues to guarantee the performance of a customer to a third party. In the event the customer does not perform in accordance with the terms of the agreement with the third party, the Bank would be required to fund the commitment. The maximum potential amount of future payments the Bank could be required to make is represented by the contractual amount of the commitment. If the commitment is funded, the customer is obligated to reimburse the Bank for the amount paid under this standby letter of credit.
The Banks commitments to extend credit and outstanding standby letters of credit were $153.9 million and $2.7 million, respectively, as of December 31, 2012. Since commitments associated with letters of credit and commitments to extend credit may expire unused, the amounts shown do not necessarily reflect the actual future cash funding requirements. We manage our liquidity in light of the aggregate amounts of commitments to extend credit and outstanding standby letters of credit in effect from time to time to ensure that we will have adequate sources of liquidity to fund such commitments and honor drafts under such letters of credit.
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We guarantee the distributions and payments for redemption or liquidation of the trust preferred securities issued by our wholly owned subsidiary trusts to the extent of funds held by the trusts. Although this guarantee is not separately recorded, the obligation underlying the guarantee is fully reflected on our consolidated balance sheets as junior subordinated debentures, which debentures are held by our subsidiary trusts. The junior subordinated debentures currently qualify as Tier 1 capital under the Federal Reserve capital adequacy guidelines. For additional information regarding the subordinated debentures, see Note 13 to our consolidated financial statements.
Asset/Liability Management and Interest Rate Risk
The principal objective of the Companys asset and liability management function is to evaluate the interest rate risk within the balance sheet and pursue a controlled assumption of interest rate risk while maximizing net income and preserving adequate levels of liquidity and capital. The Investment Committee of the Banks Board of Directors has oversight of our asset and liability management function, which is managed by our Chief Financial Officer. Our Chief Financial Officer meets with our senior executive management team regularly to review, among other things, the sensitivity of the Companys assets and liabilities to market interest rate changes, local and national market conditions and market interest rates. That group also reviews the liquidity, capital, deposit mix, loan mix and investment positions of our Company.
Our management and our Board of Directors are responsible for managing interest rate risk and employing risk management policies that monitor and limit our exposure to interest rate risk. Interest rate risk is measured using net interest income simulations and market value of portfolio equity analyses. These analyses use various assumptions, including the nature and timing of interest rate changes, yield curve shape, prepayments on loans, securities and deposits, deposit decay rates, pricing decisions on loans and deposits, reinvestment/replacement of asset and liability cash flows.
Instantaneous parallel rate shift scenarios are modeled and utilized to evaluate risk and establish exposure limits for acceptable changes in net interest margin. These scenarios, known as rate shocks, simulate an instantaneous change in interest rates and use various assumptions, including, but not limited to, prepayments on loans and securities, deposit decay rates, pricing decisions on loans and deposits, reinvestment and replacement of asset and liability cash flows.
We also analyze the economic value of equity as a secondary measure of interest rate risk. This is a complementary measure to net interest income where the calculated value is the result of the market value of assets less the market value of liabilities. The economic value of equity is a longer term view of interest rate risk because it measures the present value of the future cash flows. The impact of changes in interest rates on this calculation is analyzed for the risk to our future earnings and is used in conjunction with the analyses on net interest income.
We conduct periodic analyses of our sensitivity to interest rate risks through the use of a third-party proprietary interest-rate sensitivity model provided by ALX Consulting, Inc., or ALX, an affiliate of TIB-The Independent Bankers Bank. That model has been customized to our specifications. The analyses conducted by use of that model are based on current information regarding our actual interest-earnings assets, interest-bearing liabilities, capital and other financial information that we supply. ALX uses that information in the model to estimate our sensitivity to interest rate risk.
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Our interest rate risk model indicated that we were liability sensitive in terms of interest rate sensitivity as of December 31, 2012. The table below illustrates the impact of an immediate and sustained 200 and 100 basis point increase and a 100 basis point decrease in interest rates on net interest income based on the interest rate risk model as of December 31, 2012:
Hypothetical Shift in Interest Rates (in bps) |
% Change in Projected
|
|
200 |
-2.5% | |
100 |
-1.5 | |
-100 |
2.8 |
Many assumptions are used to calculate the impact of interest rate fluctuations. Actual results may be significantly different than our projections due to several factors, including the timing and frequency of rate changes, market conditions and the shape of the yield curve. The computations of interest rate risk shown above do not include actions that our management may undertake to manage the risks in response to anticipated changes in interest rates and actual results may also differ due to any actions taken in response to the changing rates.
As part of our asset/liability management strategy, our management has emphasized the origination of shorter duration loans as well as variable rate loans to limit the negative exposure to a rate increase, as well as obtaining funding with FHLB advances to manage interest rate risks on funding of loan commitments. Additionally, a significant portion of the loans in our loan portfolio typically have short-term maturities. Our strategy with respect to liabilities has been to emphasize transaction accounts, particularly noninterest or low interest-bearing nonmaturing deposit accounts, which are less sensitive to changes in interest rates. In response to this strategy, nonmaturing deposit accounts have been steadily increasing and totaled 78.5% of total deposits as of December 31, 2012 compared with 73.9% as of December 31, 2011. We currently have no brokered deposits other than CDARS and, as of December 31, 2012, had $31.2 million of CDARS deposits. We intend to focus on our strategy of increasing noninterest or low interest-bearing nonmaturing deposit accounts and accordingly, we have no current plans to use brokered deposits in the near future.
Critical Accounting Policies and Estimates
The preparation of our consolidated financial statements in accordance with U.S. generally accepted accounting principles, or GAAP, requires us to make estimates and judgments that affect our reported amounts of assets, liabilities, income and expenses and related disclosure of contingent assets and liabilities. We base our estimates on historical experience and on various other assumptions that are believed to be reasonable under current circumstances, results of which form the basis for making judgments about the carrying value of certain assets and liabilities that are not readily available from other sources. We evaluate our estimates on an ongoing basis. Actual results may differ from these estimates under different assumptions or conditions.
Accounting policies, as described in detail in the notes to our consolidated financial statements are an integral part of our financial statements. A thorough understanding of these accounting policies is essential when reviewing our reported results of operations and our financial position. We believe that the critical accounting policies and estimates discussed below require us to make difficult, subjective or complex judgments about matters that are inherently uncertain. Changes in these estimates, that are likely to occur from period to period, or the use of different estimates that we could have reasonably used in the current period, would have a material impact on our financial position, results of operations or liquidity.
Acquired Loans . Our accounting policies require that we evaluate all acquired loans for evidence of deterioration in credit quality since origination and to evaluate whether it is probable that we will collect all contractually required payments from the borrower.
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Acquired loans from the transactions accounted for as a business combination include both non-performing loans with evidence of credit deterioration since their origination date and performing loans. We account for performing loans under ASC Paragraph 310-20, Nonrefundable Fees and Other Costs , with the related discount being adjusted for over the life of the loan and recognized as interest income. We account for the non-performing loans acquired in accordance with ASC Paragraph 310-30, Loans and Debt Securities Acquired with Deteriorated Credit Quality . At the date of the acquisition, acquired loans are recorded at their fair value.
We recognize the difference between the undiscounted cash flows we expect (at the time we acquire the loan) to be collected and the investment in the loan, or the accretable yield, as interest income using the interest method over the life of the loan. We do not recognize contractually required payments for interest and principal that exceed undiscounted cash flows expected at acquisition, or the nonaccretable difference, as a yield adjustment, loss accrual or valuation allowance. Increases in the expected cash flows subsequent to the initial investment are recognized prospectively through adjustment of the yield on the loan over the loans remaining life, while decreases in expected cash flows are recognized as impairment. Valuation allowances on these impaired loans reflect only losses incurred after the acquisition.
Upon an acquisition, we generally continue to use the classification of acquired loans classified nonaccrual or 90 days and accruing. We do not classify acquired loans as TDRs unless we modify an acquired loan subsequent to acquisition that meets the TDR criteria. Reported delinquency of our purchased loan portfolio is based upon the contractual terms of the loans.
Allowance for Loan Losses . The allowance for loan losses represents managements estimate of probable and reasonably estimable credit losses inherent in the loan portfolio. In determining the allowance, we estimate losses on individual impaired loans, or groups of loans which are not impaired, where the probable loss can be identified and reasonably estimated. On a quarterly basis, we assess the risk inherent in our loan portfolio based on qualitative and quantitative trends in the portfolio, including the internal risk classification of loans, historical loss rates, changes in the nature and volume of the loan portfolio, industry or borrower concentrations, delinquency trends, detailed reviews of significant loans with identified weaknesses and the impacts of local, regional and national economic factors on the quality of the loan portfolio. Based on this analysis, we record a provision for loan losses in order to maintain the allowance at appropriate levels.
Determining the amount of the allowance is considered a critical accounting estimate, as it requires significant judgment and the use of subjective measurements, including managements assessment of overall portfolio quality. We maintain the allowance at an amount we believe is sufficient to provide for estimated losses inherent in our loan portfolio at each balance sheet date, and fluctuations in the provision for loan losses may result from managements assessment of the adequacy of the allowance. Changes in these estimates and assumptions are possible and may have a material impact on our allowance, and therefore our financial position, liquidity or results of operations.
Goodwill and Core Deposit Intangible . The excess purchase price over the fair value of net assets from acquisitions, or goodwill, is evaluated for impairment at least annually and on an interim basis if an event or circumstance indicates that it is likely an impairment has occurred. Prior to 2012, the evaluation of goodwill impairment was a two-step test. Effective January 1, 2012, the Company has the option to first assess qualitative factors to determine whether the existence of events or circumstances leads to a determination that it is more likely than not that the fair value of a reporting unit is less than its carrying amount. If, after assessing the totality of events or circumstances, the Company determines it is not more likely than not that the fair value of a reporting unit is less than its carrying amount, then performing the two step impairment test is unnecessary. If the Company concludes otherwise, then it is required to perform the first step of the two step impairment test by calculating the fair value of the reporting unit and comparing the fair value with the carrying amount of the reporting unit. In testing for impairment in the past, the fair value of net assets was estimated using a discounted cash flow analysis based on future projected Company earnings. In future testing for impairment, the fair value of net assets will be estimated based on an analysis of our market value.
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Determining the fair value of goodwill is considered a critical accounting estimate because the allocation of the fair value of goodwill to assets and liabilities requires significant management judgment and the use of subjective measurements. Variability in the market and changes in assumptions or subjective measurements used to allocate fair value are reasonably possible and may have a material impact on our financial position, liquidity or results of operations.
Core deposit intangibles are acquired customer relationships that lack physical substance but can be distinguished from goodwill because of contractual or other legal rights or because the asset is capable of being sold or exchanged either on its own or in combination with a related contract, asset, or liability. Core deposit intangibles are being amortized on a straight-line basis over their estimated useful lives of ten years. Core deposit intangibles are tested for impairment whenever events or changes in circumstances indicate the carrying amount of the assets may not be recoverable from future undiscounted cash flows. If impaired, the assets are recorded at fair value.
Emerging Growth Company . The JOBS Act permits us, as an emerging growth company, to take advantage of an extended transition period to comply with new or revised accounting standards and not commence complying with new or revised accounting standards until private companies must do so. Under the JOBS Act, we may make an irrevocable election to opt out of that extended transition period and comply with new or revised accounting standards when public companies that are not emerging growth companies must commence complying with those standards. We have elected not to opt out of the extended transition period at this time. Consequently, when a new or revised accounting standard has application dates that are different for public companies and private companies, we will commence complying with the new or revised standard only when private companies must do so. We will continue to commence complying with new or revised accounting standards in this manner until we cease to be an emerging growth company unless we previously elect to opt out of the extended transition period, as we may do under the JOBS Act. Any such future election by us will be irrevocable and will apply to all accounting standards issued or revised after such election.
As a consequence of our determination to take advantage of the extended transition period, our consolidated financial statements as of a particular date and for a particular period in the future may not be comparable to the financial statements as of such date and for such period of a public company situated similarly to us that is neither an emerging growth company nor an emerging growth company that has opted out of the extended transition period. Such financial statements of the other company may be prepared in conformity with new or revised accounting standards then applicable to public companies, but not to private companies, while, if we are then in the extended transition period, our consolidated financial standards would not be prepared in conformity with such new or revised accounting standards.
Recently Issued Accounting Pronouncements
We have evaluated new accounting pronouncements that have recently been issued and have determined that there are no new accounting pronouncements that should be described in this section that will impact our operations, financial condition or liquidity in future periods. Refer to Note 2 of our audited consolidated financial statements for a discussion of recent accounting pronouncements that have been adopted by us or that will require enhanced disclosures in our financial statements in future periods.
Non-GAAP Financial Measures
We identify certain of the financial measures discussed in this prospectus as being non-GAAP financial measures. In accordance with the SECs rules, we classify a financial measure as being a non-GAAP financial measure if that financial measure excludes or includes amounts, or is subject to adjustments that have the effect of excluding or including amounts, that are included or excluded, as the case may be, in the most directly comparable measure calculated and presented in accordance with generally accepted accounting principles as in effect from time to time in the United States in our statements of income, balance sheet or statements of cash
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flows. Non-GAAP financial measures do not include operating and other statistical measures or ratios or statistical measures calculated using exclusively either financial measures calculated in accordance with GAAP, operating measures or other measures that are not non-GAAP financial measures or both.
The non-GAAP financial measures that we discuss in this prospectus should not be considered in isolation or as a substitute for the most directly comparable or other financial measures calculated in accordance with GAAP. Moreover, the manner in which we calculate the non-GAAP financial measures that we discuss in this prospectus may differ from that of other companies reporting measures with similar names. You should understand how such other banking organizations calculate their financial measures similar or with names similar to the non-GAAP financial measures we have discussed in this prospectus when comparing such non-GAAP financial measures.
Tangible Book Value Per Common Share . Tangible book value is a non-GAAP measures generally used by financial analysts and investment bankers to evaluate capital adequacy. We calculate: (a) tangible common equity as total stockholders equity less goodwill and other intangible assets; and (b) tangible book value per common share as tangible common equity (as described in clause (a)) divided by shares of common stock outstanding. For tangible book value, the most directly comparable financial measure calculated in accordance with GAAP is our book value.
We believe that this non-GAAP financial measure is important information to be provided to you because, as do our management, banking regulators, many financial analysts and other investors, you can use the tangible book value in conjunction with more traditional bank capital ratios to assess our capital adequacy without the effect of our goodwill and other intangible assets and compare our capital adequacy with the capital adequacy of other banking organizations with significant amounts of goodwill and/or other intangible assets, which typically stem from the use of the purchase accounting method of accounting for mergers and acquisitions.
The following table presents, as of the dates set forth below, total stockholders equity to tangible common equity and presents our tangible book value per common share compared with our book value per common share:
As of December 31, | ||||||||||||||||
(dollars in thousands, except per share data) | 2012 | 2011 | 2010 | 2009 | ||||||||||||
Tangible Common Equity |
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Total stockholders equity |
$ | 124,510 | $ | 85,997 | $ | 76,044 | $ | 62,479 | ||||||||
Adjustments: |
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Goodwill |
28,714 | 11,222 | 11,222 | 11,222 | ||||||||||||
Core deposit intangibles |
3, 251 | 2,664 | 3,231 | 1,914 | ||||||||||||
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Tangible common equity |
$ | 92,545 | $ | 72,111 | $ | 61,591 | $ | 49,343 | ||||||||
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Common shares outstanding (1) |
8,269,707 | 6,850,293 | 6,832,328 | 6,628,056 | ||||||||||||
Book value per common share |
$ | 15.06 | $ | 12.55 | $ | 11.13 | $ | 9.42 | ||||||||
Tangible book value per common share |
11.19 | 10.53 | 9.02 | 7.44 |
(1) | We calculate the common shares outstanding as set forth in note 5 to the tabular presentation of our historical selected financial data and other information appearing above. |
Tier 1 Capital to Risk-Weighted Assets Ratio. We calculate the Tier 1 capital to risk-weighted assets ratio by dividing (a) our Tier 1 capital less noncommon elements, including qualifying trust preferred securities, by (b) risk-weighted assets, which are calculated in accordance with applicable bank regulatory requirements. Applicable bank regulatory requirements do not require us to disclose on a recurring basis our Tier 1 capital ratio. Management is currently monitoring this ratio, along with the applicable bank regulatory ratios, in
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evaluating our capital levels and believes that, at this time, the ratio may continue to be information that may be of interest to investors and analysts and assist them in assessing the adequacy of our capital and risk tolerance in view of our capital position. The financial measure calculated in accordance with GAAP most directly comparable to the Tier 1 capital to risk-weighted assets ratio is the ratio of our total stockholders equity to risk-weighted assets.
The following table presents our total stockholders equity (on a GAAP basis) to Tier 1 capital and presents the Tier 1 capital to risk-weighted assets ratio and the ratio of total stockholders equity to risk-weighted assets as of the dates set forth below:
As of December 31, | ||||||||||||||||
(dollars in thousands) | 2012 | 2011 | 2010 | 2009 | ||||||||||||
Tier 1 Capital |
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Total stockholders equity GAAP |
$ | 124,510 | $ | 85,997 | $ | 76,044 | $ | 62,479 | ||||||||
Adjustments: |
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Unrealized gain on available-for-sale securities |
2,578 | 2,162 | 866 | 80 | ||||||||||||
Goodwill |
28,714 | 11,222 | 11,222 | 11,222 | ||||||||||||
Other intangibles |
3,251 | 2,664 | 3,231 | 1,914 | ||||||||||||
Other disallowed assets |
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Qualifying Restricted Core Capital Elements (TRUPS) |
17,600 | 14,100 | 14,100 | 14,100 | ||||||||||||
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Tier 1 capital |
$ | 107,567 | $ | 84,049 | $ | 74,825 | $ | 63,363 | ||||||||
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Total Risk-Weighted Assets |
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On balance sheet |
$ | 1,297,795 | $ | 971,322 | $ | 834,898 | $ | 705,406 | ||||||||
Off balance sheet |
10,860 | 6,850 | 8,139 | 4,428 | ||||||||||||
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Total risk-weighted assets |
$ | 1,308,655 | $ | 978,172 | $ | 843,037 | $ | 709,834 | ||||||||
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Total stockholders equity to risk-weighted assets ratio |
9.51 | % | 8.79 | % | 9.02 | % | 8.80 | % | ||||||||
Tier 1 capital to risk-weighted assets ratio |
8.22 | 8.59 | 8.88 | 8.93 |
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The U.S. banking industry is highly regulated under federal and state law. Consequently, the growth and earnings performance of Independent Bank Group and its subsidiaries will be affected not only by management decisions and general and local economic conditions, but also by the statutes administered by, and the regulations and policies of, various governmental regulatory authorities. These authorities include the Federal Reserve, the FDIC, the Office of the Comptroller of the Currency, or the OCC, the TDB, the Internal Revenue Service, or the IRS, and state taxing authorities. The effect of these statutes, regulations and policies, and any changes to such statutes, regulations and policies, can be significant and cannot be predicted.
The primary goals of the bank regulatory scheme are to maintain a safe and sound banking system and to facilitate the conduct of sound monetary policy. The system of supervision and regulation applicable to Independent Bank Group and its subsidiaries establishes a comprehensive framework for their respective operations and is intended primarily for the protection of the FDICs deposit insurance fund, the banks depositors and the public, rather than Independent Bank Groups shareholders or creditors. The description below summarizes certain elements of the applicable bank regulatory framework. This description is not intended to describe all laws and regulations applicable to Independent Bank Group and its subsidiaries, and the description is qualified in its entirety by reference to the full text of the statutes, regulations, policies, interpretive letters and other written guidance that are described herein.
Independent Bank Group as a Bank Holding Company
As a bank holding company, Independent Bank Group is subject to regulation under the Bank Holding Company Act of 1956, or the BHC Act, and to supervision, examination and enforcement by the Federal Reserve. The BHC Act and other federal laws subject bank holding companies to particular restrictions on the types of activities in which they may engage, and to a range of supervisory requirements and activities, including regulatory enforcement actions for violations of laws and regulations. The Federal Reserves jurisdiction also extends to any company that Independent Bank Group directly or indirectly controls, such as Independent Bank Groups nonbank subsidiaries and other companies in which Independent Bank Group owns a controlling investment.
Regulatory Restrictions on Dividends; Source of Strength . Independent Bank Group is regarded as a legal entity separate and distinct from the Bank. The principal source of Independent Bank Groups revenues is dividends received from the Bank. As described in more detail below, Texas state law places limitations on the amount that state banks may pay in dividends, which the Bank must adhere to when paying dividends to Independent Bank Group. The Federal Reserve has issued a policy statement that provides that a bank holding company should not pay dividends unless (a) its net income over the last four quarters (net of dividends paid) has been sufficient to fully fund the dividends, (b) the prospective rate of earnings retention appears to be consistent with the capital needs, asset quality and overall financial condition of the bank holding company and its subsidiaries and (c) the bank holding company will continue to meet minimum required capital adequacy ratios. Accordingly, Independent Bank Group should not pay cash dividends that exceed its net income in any year or that can only be funded in ways that weaken its financial strength, including by borrowing money to pay dividends.
Under Federal Reserve policy, bank holding companies have historically been required to act as a source of financial and managerial strength to each of its banking subsidiaries, and the DoddFrank Act codified this policy as a statutory requirement. Under this requirement, Independent Bank Group is expected to commit resources to support the Bank, including at times when Independent Bank Group may not be in a financial position to provide such resources. Any capital loans by a bank holding company to any of its subsidiary banks are subordinate in right of payment to deposits and to certain other indebtedness of such subsidiary banks. As discussed below, a bank holding company, in certain circumstances, could be required to guarantee the capital restoration plan of an undercapitalized banking subsidiary. If the capital of the Bank were to become impaired,
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the Federal Reserve could assess Independent Bank Group for the deficiency. If Independent Bank Group failed to pay the assessment within three months, the Federal Reserve could order the sale of Independent Bank Groups stock in the Bank to cover the deficiency.
In the event of a bank holding companys bankruptcy under Chapter 11 of the U.S. Bankruptcy Code, the trustee will be deemed to have assumed and will be required to cure immediately any deficit under any commitment by the debtor holding company to any of the federal banking agencies to maintain the capital of an insured depository institution, and any claim for breach of such obligation will generally have priority over most other unsecured claims.
Scope of Permissible Activities . Under the BHC Act, Independent Bank Group is prohibited from acquiring a direct or indirect interest in or control of more than 5% of the voting shares of any company that is not a bank or financial holding company and from engaging directly or indirectly in activities other than those of banking, managing or controlling banks or furnishing services to or performing services for its subsidiary banks, except that Independent Bank Group may engage in, directly or indirectly, and may own shares of companies engaged in certain activities found by the Federal Reserve to be so closely related to banking or managing and controlling banks as to be a proper incident thereto. These activities include, among others, operating a mortgage, finance, credit card or factoring company; performing certain data processing operations; providing investment and financial advice; acting as an insurance agent for certain types of credit-related insurance; leasing personal property on a full-payout, nonoperating basis; and providing certain stock brokerage and investment advisory services. In approving acquisitions or the addition of activities, the Federal Reserve considers, among other things, whether the acquisition or the additional activities can reasonably be expected to produce benefits to the public, such as greater convenience, increased competition, or gains in efficiency, that outweigh such possible adverse effects as undue concentration of resources, decreased or unfair competition, conflicts of interest or unsound banking practices.
Notwithstanding the foregoing, the Gramm Leach Bliley Act, also known as the Financial Services Modernization Act of 1999, effective March 11, 2000, or the GLB Act, amended the BHC Act and eliminated the barriers to affiliations among banks, securities firms, insurance companies and other financial service providers. The GLB Act permits bank holding companies to become financial holding companies and thereby affiliate with securities firms and insurance companies and engage in other activities that are financial in nature. The GLB Act defines financial in nature to include securities underwriting, dealing and market making; sponsoring mutual funds and investment companies; insurance underwriting and agency; merchant banking activities; and activities that the Federal Reserve has determined to be closely related to banking. No regulatory approval will be required for a financial holding company to acquire a company, other than a bank or savings association, engaged in activities that are financial in nature or incidental to activities that are financial in nature, as determined by the Federal Reserve.
Safe and Sound Banking Practices . Bank holding companies are not permitted to engage in unsafe and unsound banking practices. The Federal Reserves Regulation Y, for example, generally requires a bank holding company to provide the Federal Reserve with prior notice of any redemption or repurchase of its own equity securities, if the consideration to be paid, together with the consideration paid for any repurchases or redemptions in the preceding year, is equal to 10% or more of the bank holding companys consolidated net worth. The Federal Reserve may oppose the transaction if it believes that the transaction would constitute an unsafe or unsound practice or would violate any law or regulation. In certain circumstances, the Federal Reserve could take the position that paying a dividend would constitute an unsafe or unsound banking practice.
The Federal Reserve has broad authority to prohibit activities of bank holding companies and their nonbanking subsidiaries which represent unsafe and unsound banking practices or which constitute violations of laws or regulations, and can assess civil money penalties for certain activities conducted on a knowing and reckless basis, if those activities caused a substantial loss to a depository institution. The penalties can be as high as one million dollars ($1,000,000) for each day the activity continues.
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Anti-Tying Restrictions. Bank holding companies and their affiliates are prohibited from tying the provision of certain services, such as extensions of credit, to other nonbanking services offered by a bank holding company or its affiliates.
Capital Adequacy Requirements. The Federal Reserve has adopted a system using risk-based capital guidelines under a two-tier capital framework to evaluate the capital adequacy of bank holding companies. Tier 1 capital generally consists of common stockholders equity, retained earnings, a limited amount of qualifying perpetual preferred stock, qualifying trust preferred securities and noncontrolling interests in the equity accounts of consolidated subsidiaries, less goodwill and certain intangibles. Tier 2 capital generally consists of certain hybrid capital instruments and perpetual debt, mandatory convertible debt securities and a limited amount of subordinated debt, qualifying preferred stock, loan loss allowance, and unrealized holding gains on certain equity securities. The regulatory capital requirements are applicable to Independent Bank Group because its total consolidated assets equal more than $500 million, and the Bank is subject to the capital requirements of the FDIC.
Under the guidelines, specific categories of assets are assigned different risk weights, based generally on the perceived credit risk of the asset. These risk weights are multiplied by corresponding asset balances to determine a risk-weighted asset base. The guidelines require a minimum ratio of total capital to total risk-weighted assets of 8.0% (of which at least 4.0% is required to consist of Tier 1 capital elements). Total capital is the sum of Tier 1 and Tier 2 capital. Risk-weighted assets exclude intangible assets such as goodwill and core deposit intangibles.
In addition to the risk-based capital guidelines, the Federal Reserve uses a leverage ratio as an additional tool to evaluate the capital adequacy of bank holding companies. The leverage ratio is a companys Tier 1 capital divided by its average total consolidated assets. Certain highly rated bank holding companies may maintain a minimum leverage ratio of 3.0%, but other bank holding companies are required to maintain a leverage ratio of at least 4.0%.
The federal banking agencies risk-based and leverage capital ratios are minimum supervisory ratios generally applicable to banking organizations that meet certain specified criteria. Banking organizations not meeting these criteria are expected to operate with capital positions well above the minimum ratios. The federal bank regulatory agencies may set capital requirements for a particular banking organization that are higher than the minimum ratios when circumstances warrant. Federal Reserve guidelines also provide that banking organizations experiencing internal growth or making acquisitions will be expected to maintain strong capital positions substantially above the minimum supervisory levels, without significant reliance on intangible assets.
Proposed Revisions to Capital Adequacy Requirements. The Dodd-Frank Act requires the Federal Reserve, the OCC and the FDIC to adopt regulations imposing a continuing floor of the 1988 capital accord, or Basel I, of the Basel Committee on Banking Supervision, or the Basel Committee, capital requirements in cases where the 2004 Basel Committee capital accord, or Basel II, capital requirements and any changes in capital regulations resulting from Basel III (defined below) otherwise would permit lower requirements. In December 2010, the Federal Reserve, the OCC and the FDIC issued a joint notice of proposed rulemaking that would implement this requirement.
On December 16, 2010, the Basel Committee released its final framework for strengthening international capital and liquidity regulation, or Basel III. Basel III, if implemented by the U.S. banking agencies and fully phased-in, will require bank holding companies and their bank subsidiaries to maintain substantially more capital, with a greater emphasis on common equity. The Federal Reserve announced in December of 2011 that it would implement substantially all of the Basel III rules. Notwithstanding its release of the Basel III framework, the Basel Committee is considering further amendments to Basel III, including the imposition of additional capital surcharges on globally and systemically important financial institutions. In addition to Basel III, the
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Dodd-Frank Act requires or permits the Federal banking agencies to adopt regulations affecting banking institutions capital requirements in a number of respects. Accordingly, the regulations ultimately applicable to Independent Bank Group may be substantially different from the Basel III final framework as published in December 2010.
The Basel III final capital framework, among other things, (i) introduces as a new capital measure Common Equity Tier 1, or CET1, (ii) specifies that Tier 1 capital consists of CET1 and Additional Tier 1 capital instruments meeting specified requirements, (iii) defines CET1 narrowly by requiring that most adjustments to regulatory capital measures be made to CET1 and not to the other components of capital and (iv) expands the scope of the adjustments as compared to existing regulations.
Basel III has been deferred indefinitely. Ultimately, if implemented, Basel III would require, among other things, a new common equity Tier 1 risk-based ratio with a minimum required ratio of 4.5% of total assets and an increase in the minimum required amount of Tier 1 capital from the current level of 5% of total assets to 6% of total assets. Moreover, Basel III would require banks to hold additional capital equal to 2.5% of total assets as a capital conservation buffer in order to avoid restrictions on certain activities, including the payment of dividends and certain bonuses. Basel III would also provide for a countercyclical capital buffer, that would be added to the capital conservation buffer generally to be imposed when national regulators determine that excess aggregate credit growth becomes associated with a buildup of systemic risk.
Proposed Liquidity Requirements. Historically, regulation and monitoring of bank and bank holding company liquidity has been addressed as a supervisory matter, without required formulaic measures. The Basel III final framework will require banks and bank holding companies to measure their liquidity against specific liquidity tests that, although similar in some respects to liquidity measures historically applied by banks and regulators for management and supervisory purposes, going forward will be required by regulation. One test, referred to as the liquidity coverage ratio, or LCR, is designed to ensure that the banking entity maintains an adequate level of unencumbered high-quality liquid assets equal to the entitys expected net cash outflow for a 30-day time horizon (or, if greater, 25% of its expected total cash outflow) under an acute liquidity stress scenario. The other, referred to as the net stable funding ratio, or NSFR, is designed to promote more medium- and long-term funding of the assets and activities of banking entities over a one-year time horizon. These requirements will incentivize banking entities to increase their holdings of U.S. Treasury securities and other sovereign debt as a component of assets and increase the use of long-term debt as a funding source. The LCR will not be introduced as a requirement until January 1, 2015, and the NSFR will not be introduced as a requirement until January 1, 2018. These new standards are subject to further rulemaking and their terms could change before implementation.
Imposition of Liability for Undercapitalized Subsidiaries. Bank regulators are required to take prompt corrective action to resolve problems associated with insured depository institutions whose capital declines below certain levels. In the event an institution becomes undercapitalized, it must submit a capital restoration plan. The capital restoration plan will not be accepted by the regulators unless each company having control of the undercapitalized institution guarantees the subsidiarys compliance with the capital restoration plan up to a certain specified amount. Any such guarantee from a depository institutions holding company is entitled to a priority of payment in bankruptcy.
The aggregate liability of the holding company of an undercapitalized bank is limited to the lesser of 5.0% of the institutions assets at the time it became undercapitalized or the amount necessary to cause the institution to be adequately capitalized. The bank regulators have greater power in situations where an institution becomes significantly or critically undercapitalized or fails to submit a capital restoration plan. For example, a bank holding company controlling such an institution can be required to obtain prior Federal Reserve approval of proposed dividends, or might be required to consent to a consolidation or to divest the troubled institution or other affiliates.
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Acquisitions by Bank Holding Companies. The BHC Act requires every bank holding company to obtain the prior approval of the Federal Reserve before it acquires all or substantially all of the assets of any bank, or ownership or control of any voting shares of any bank if after such acquisition it would own or control, directly or indirectly, more than 5% of the voting shares of such bank. In approving bank acquisitions by bank holding companies, the Federal Reserve is required to consider, among other things, the effect of the acquisition on competition, the financial condition, managerial resources and future prospects of the bank holding company and the banks concerned, the convenience and needs of the communities to be served (including the record of performance under the CRA), the effectiveness of the applicant in combating money laundering activities and the extent to which the proposed acquisition would result in greater or more concentrated risks to the stability of the U.S. banking or financial system. Our ability to make future acquisitions will depend on our ability to obtain approval for such acquisitions from the Federal Reserve. The Federal Reserve could deny our application based on the above criteria or other considerations. For example, we could be required to sell banking centers as a condition to receiving regulatory approval, which condition may not be acceptable to us or, if acceptable to us, may reduce the benefit of a proposed acquisition.
Control Acquisitions. Federal and state laws, including the BHCA and the Change in Bank Control Act, or the CBCA, impose additional prior notice or approval requirements and ongoing regulatory requirements on any investor that seeks to acquire direct or indirect control of an FDIC-insured depository institution or bank holding company. Whether an investor controls a depository institution is based on all of the facts and circumstances surrounding the investment. As a general matter, an investor is deemed to control a depository institution or other company if the investor owns or controls 25% or more of any class of voting securities. Subject to rebuttal, an investor is presumed to control a depository institution or other company if the investor owns or controls 10% or more of any class of voting securities and either the depository institution or company is a public company or no other person will hold a greater percentage of that class of voting securities after the acquisition. If an investors ownership of Independent Bank Groups voting securities were to exceed certain thresholds, the investor could be deemed to control Independent Bank Group for regulatory purposes, which could subject such investor to regulatory filings or other regulatory consequences.
Regulation of the Bank
The Bank is a Texas-chartered banking association, the deposits of which are insured by the deposit insurance fund of the FDIC. The Bank is not a member of the Federal Reserve System; therefore, the Bank is subject to supervision and regulation by the FDIC and the TDB. Such supervision and regulation subject the Bank to special restrictions, requirements, potential enforcement actions and periodic examination by the FDIC and the TDB. Because the Federal Reserve regulates Independent Bank Group, the Federal Reserve also has supervisory authority which directly affects the Bank.
Equivalence to National Bank Powers. The Texas Constitution, as amended in 1986, provides that a Texas-chartered bank has the same rights and privileges that are or may be granted to national banks domiciled in Texas. To the extent that the Texas laws and regulations may have allowed state-chartered banks to engage in a broader range of activities than national banks, the Federal Deposit Insurance Corporation Improvement Act of 1991, or the FDICIA, has operated to limit this authority. The FDICIA provides that no state bank or subsidiary thereof may engage as a principal in any activity not permitted for national banks, unless the institution complies with applicable capital requirements and the FDIC determines that the activity poses no significant risk to the deposit insurance fund of the FDIC. In general, statutory restrictions on the activities of banks are aimed at protecting the safety and soundness of depository institutions.
Financial Modernization. Under the GLB Act, a national bank may establish a financial subsidiary and engage, subject to limitations on investment, in activities that are financial in nature, other than insurance underwriting as principal, insurance company portfolio investment, real estate development, real estate investment, annuity issuance and merchant banking activities. To do so, a bank must be well capitalized, well managed and have a Community Reinvestment Act, or CRA, rating from the FDIC of satisfactory or better. Subsidiary banks of a financial holding company or national banks with financial subsidiaries must remain well
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capitalized and well managed in order to continue to engage in activities that are financial in nature without regulatory actions or restrictions. Such actions or restrictions could include divestiture of the financial in nature subsidiary or subsidiaries. In addition, a financial holding company or a bank may not acquire a company that is engaged in activities that are financial in nature unless each of the subsidiary banks of the financial holding company or the bank has a CRA rating of satisfactory of better.
Although the powers of state chartered banks are not specifically addressed in the GLB Act, Texas-chartered banks such as the Bank will have the same if not greater powers as national banks through the parity provisions contained in the Texas Constitution and other Texas statutes.
Branching. Texas law provides that a Texas-chartered bank can establish a branch anywhere in Texas provided that the branch is approved in advance by the TDB. The branch must also be approved by the FDIC, which considers a number of factors, including financial history, capital adequacy, earnings prospects, character of management, needs of the community and consistency with corporate powers. The Dodd-Frank Act permits insured state banks to engage in de novo interstate branching if the laws of the state where the new branch is to be established would permit the establishment of the branch if it were chartered by such state.
Restrictions on Transactions with Affiliates and Insiders. Transactions between the Bank and its nonbanking subsidiaries and/or affiliates, including Independent Bank Group, are subject to Section 23A of the Federal Reserve Act. In general, Section 23A of the Federal Reserve Act imposes limits on the amount of such transactions, and also requires certain levels of collateral for loans to affiliated parties. It also limits the amount of advances to third parties which are collateralized by the securities or obligations of Independent Bank Group or its subsidiaries. Covered transactions with any single affiliate may not exceed 10% of the capital stock and surplus of the Bank, and covered transactions with all affiliates may not exceed, in the aggregate, 20% of the Banks capital and surplus. For a bank, capital stock and surplus refers to the banks tier 1 and tier 2 capital, as calculated under the risk-based capital guidelines, plus the balance of the allowance for credit losses excluded from tier 2 capital. The Banks transactions with all of its affiliates in the aggregate are limited to 20% of the foregoing capital. Covered transactions are defined by statute to include a loan or extension of credit to an affiliate, as well as a purchase of securities issued by an affiliate, a purchase of assets (unless otherwise exempted by the Federal Reserve) from the affiliate, the acceptance of securities issued by the affiliate as collateral for a loan, and the issuance of a guarantee, acceptance or letter of credit on behalf of an affiliate. In addition, in connection with covered transactions that are extensions of credit, the Bank may be required to hold collateral to provide added security to the Bank, and the types of permissible collateral may be limited. The Dodd-Frank Act generally enhances the restrictions on transactions with affiliates, including an expansion of what types of transactions are covered transactions to include credit exposures related to derivatives, repurchase agreement and securities lending arrangements and an increase in the amount of time for which collateral requirements regarding covered transactions must be satisfied.
Affiliate transactions are also subject to Section 23B of the Federal Reserve Act which generally requires that certain transactions between the Bank and its affiliates be on terms substantially the same, or at least as favorable to the Bank, as those prevailing at the time for comparable transactions with or involving other nonaffiliated persons. The Federal Reserve has also issued Regulation W which codifies prior regulations under Sections 23A and 23B of the Federal Reserve Act and interpretive guidance with respect to affiliate transactions.
The restrictions on loans to directors, executive officers, principal shareholders and their related interests (collectively referred to herein as insiders) contained in the Federal Reserve Act and in Regulation O promulgated by the Federal Reserve apply to all insured institutions and their subsidiaries and bank holding companies. These restrictions include limits on loans to one borrower and conditions that must be met before such a loan can be made. There is also an aggregate limitation on all loans to insiders and their related interests. Generally, these loans cannot exceed the institutions total unimpaired capital and surplus, and the FDIC may determine that a lesser amount is appropriate. Loans to senior executive officers of a bank are even further restricted, generally limited to $100,000 per senior executive officer. Insiders are subject to enforcement actions for knowingly accepting loans in violation of applicable restrictions.
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Restrictions on Distribution of Subsidiary Bank Dividends and Assets. Dividends paid by the Bank have provided a substantial part of Independent Bank Groups operating funds, and for the foreseeable future, it is anticipated that dividends paid by the Bank to Independent Bank Group will continue to be Independent Bank Groups principal source of operating funds. However, capital adequacy requirements serve to limit the amount of dividends that may be paid by the Bank. Under federal law, the Bank cannot pay a dividend if, after paying the dividend, the Surviving Bank would be undercapitalized. The FDIC may declare a dividend payment to be unsafe and unsound even though the Bank would continue to meet its capital requirements after payment of the dividend.
Because Independent Bank Group is a legal entity separate and distinct from its subsidiaries, its right to participate in the distribution of assets of any subsidiary upon the subsidiarys liquidation or reorganization will be subject to the prior claims of the subsidiarys creditors. The Federal Deposit Insurance Act, or the FDI Act, provides that, in the event of a liquidation or other resolution of an insured depository institution, the claims of depositors of the institution (including the claims of the FDIC as subrogee of insured depositors) and certain claims for administrative expenses of the FDIC as a receiver will have priority over other general unsecured claims against the institution. If the Bank fails, insured and uninsured depositors, along with the FDIC, will have priority in payment ahead of unsecured, nondeposit creditors, including Independent Bank Group, with respect to any extensions of credit we have made to the Bank.
Examinations. The FDIC periodically examines and evaluates state nonmember banks. Based on such an evaluation, the FDIC may revalue the assets of the institution and require that it establish specific reserves to compensate for the difference between the FDIC determined value and the book value of such assets. The TDB also conducts examinations of state banks but may accept the results of a federal examination in lieu of conducting an independent examination. In addition, the FDIC and TDB may elect to conduct a joint examination.
Audit Reports. Insured institutions with total assets of $500 million or more must submit annual audit reports prepared by independent auditors to federal and state regulators. In some instances, the audit report of the institutions holding company can be used to satisfy this requirement. Auditors must receive examination reports, supervisory agreements and reports of enforcement actions. For institutions with total assets of $1 billion or more, financial statements prepared in accordance with GAAP, managements certifications signed by Independent Bank Groups and the Banks chief executive officer and chief accounting or financial officer concerning managements responsibility for the financial statements, and an attestation by the auditors regarding the Banks internal controls must be submitted. For institutions with total assets of more than $3 billion, independent auditors may be required to review quarterly financial statements. The FDICIA requires that the Bank have an independent audit committee, consisting of outside directors only, or that Independent Bank Group have an audit committee that is entirely independent. The committees of such institutions must include members with experience in banking or financial management, must have access to outside counsel and must not include representatives of large customers.
Capital Adequacy Requirements. The FDIC has adopted regulations establishing minimum requirements for the capital adequacy of insured institutions and may establish higher minimum requirements if, for example, a bank has previously received special attention or has a high susceptibility to interest rate risk. The FDICs risk-based capital guidelines generally require state banks to have a minimum ratio of Tier 1 capital to total risk-weighted assets of 4.0% and a ratio of total capital to total risk-weighted assets of 8.0%. The capital categories have the same definitions for the Bank as for Independent Bank Group. The FDICs leverage guidelines require state banks to maintain Tier 1 capital of no less than 4.0% of average total assets, except in the case of certain highly rated banks for which the requirement is 3.0% of average total assets. The TDB has issued a policy which generally requires state chartered banks to maintain a leverage ratio (defined in accordance with federal capital guidelines) of 5.0%.
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Corrective Measures for Capital Deficiencies. The federal banking regulators are required by the FDI Act to take prompt corrective action with respect to capital-deficient institutions that are FDIC-insured. Agency regulations define, for each capital category, the levels at which institutions are well capitalized, adequately capitalized, undercapitalized, significantly undercapitalized and critically undercapitalized. A well capitalized bank has a total risk-based capital ratio of 10.0% or higher, a Tier 1 risk-based capital ratio of 6.0% or higher; a leverage ratio of 5.0% or higher and is not subject to any written agreement, order or directive requiring it to maintain a specific capital level for any capital measure. An adequately capitalized bank has a total risk-based capital ratio of 8.0% or higher, a Tier 1 risk-based capital ratio of 4.0% or higher, a leverage ratio of 4.0% or higher (3.0% or higher if the bank was rated a composite 1 in its most recent examination report and is not experiencing significant growth) and does not meet the criteria for a well-capitalized bank. A bank is undercapitalized if it fails to meet any one of the ratios required to be adequately capitalized.
In addition to requiring undercapitalized institutions to submit a capital restoration plan, agency regulations contain broad restrictions on certain activities of undercapitalized institutions including asset growth, acquisitions, branch establishment and expansion into new lines of business. With certain exceptions, an insured depository institution is prohibited from making capital distributions, including dividends, and is prohibited from paying management fees to control persons if the institution would be undercapitalized after any such distribution or payment.
As an institutions capital decreases, the FDICs enforcement powers become more severe. A significantly undercapitalized institution is subject to mandated capital raising activities, restrictions on interest rates paid and transactions with affiliates, removal of management and other restrictions. The FDIC has only very limited discretion in dealing with a critically undercapitalized institution and is virtually required to appoint a receiver or conservator.
Banks with risk-based capital and leverage ratios below the required minimums may also be subject to certain administrative actions, including the termination of deposit insurance upon notice and hearing, or a temporary suspension of insurance without a hearing in the event the institution has no tangible capital.
Deposit Insurance Assessments. Substantially all of the deposits of the Bank are insured up to applicable limits by the deposit insurance fund of the FDIC, and the Bank must pay deposit insurance assessments to the FDIC for such deposit insurance protection. The FDIC maintains the deposit insurance fund by designating a required reserve ratio. If the reserve ratio falls below the designated level, the FDIC must adopt a restoration plan that provides that the deposit insurance fund will return to an acceptable level generally within five years.
On December 20, 2010, the FDIC raised the minimum designated reserve ratio of the deposit insurance fund to 2.00%, which exceed the 1.35% reserve ratio that is required by the Dodd-Frank Act. The FDIC has the discretion to set the price for deposit insurance according to the risk for all insured institutions regardless of the level of the reserve ratio. Under the Dodd-Frank Act, the FDIC is required to offset the effect of the higher reserve ratio on small insured depository institutions, which are those with consolidated assets of less than $10 billion.
The deposit insurance fund reserve ratio is maintained by assessing depository institutions and establishing an insurance premium based upon statutory factors. Under its current regulations, the FDIC imposes assessments for deposit insurance according to a depository institutions ranking in one of four risk categories based upon supervisory and capital evaluations. The assessment rate for an individual institution is determined according to a formula based on a combination of weighted average CAMELS component ratings, financial ratios and, for institutions that have long-term debt ratings, the average ratings of its long-term debt. Well-capitalized institutions (generally those with CAMELS composite ratings of 1 or 2) are grouped in Risk Category I and the initial base assessment rate for deposit insurance is set at an annual rate of between 12 and 16 basis points. The initial base assessment rate for institutions in Risk Categories II, III and IV is set at annual rates of 22, 32 and 50 basis points, respectively. These initial base assessment rates are adjusted to determine an institutions final assessment rate
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based on its brokered deposits, secured liabilities and unsecured debt. Total base assessment rates after adjustments range from 7 to 24 basis points for Risk Category I, 17 to 43 basis points for Risk Category II, 27 to 58 basis points for Risk Category III, and 40 to 77.5 basis points for Risk Category IV.
In November 2009, the FDIC adopted a rule that required all insured institutions, with limited exceptions, to prepay their estimated quarterly risk-based assessments for the fourth quarter of 2009 and for all of 2010, 2011 and 2012. The assessment was calculated by taking the institutions actual September 30, 2009 assessment base and adjusting it quarterly by an estimated 5% annual growth rate through the end of 2012. Each institution was required to record the entire amount of its prepaid assessment as a prepaid expense, i.e., an asset on its balance sheet, as of December 30, 2009. As of December 31, 2009, and each quarter thereafter, each institution is required to record an expense, or a charge to earnings, for its quarterly assessment invoiced on its quarterly statement and an offsetting credit to the prepaid assessment until the asset is exhausted.
On February 7, 2012, the FDIC approved a final rule that amends its existing deposit insurance funds restoration plan and implements certain provisions of the Dodd-Frank Act. Effective as of July 1, 2012, the assessment base is determined using average consolidated total assets minus average tangible equity rather than the current assessment base of adjusted domestic deposits. Since the change will result in a much larger assessment base, the final rule also lowers the assessment rates in order to keep the total amount collected from financial institutions relatively unchanged from the amounts currently being collected. The new assessment rates, calculated on the revised assessment base, generally range from 2.5 to 9 basis points for Risk Category I institutions, 9 to 24 basis points for Risk Category II institutions, 18 to 33 basis points for Risk Category III institutions, and 30 to 45 basis points for Risk Category IV institutions. For large institutions (generally those with total assets of $10 billion or more), which does not include the Bank, the initial base assessment rate ranges from 5 to 35 basis points on an annualized basis. After the effect of potential base-rate adjustments, the total base assessment rate could range from 2.5 to 45 basis points on an annualized basis. Assessment rates for large institutions will be calculated using a scorecard that combines CAMELS ratings and certain forward-looking financial measures to assess the risk a large institution poses to the deposit insurance fund. The new assessment rates will be calculated for the quarter beginning July 1, 2012 and reflected in invoices for assessments due September 30, 2012.
Brokered Deposit Restrictions. Adequately capitalized institutions cannot accept, renew or roll over brokered deposits, without receiving a waiver from the FDIC, and are subject to restrictions on the interest rates that can be paid on any deposits. Undercapitalized institutions may not accept, renew, or roll over brokered deposits.
Concentrated Commercial Real Estate Lending Regulations. The federal banking agencies, including the FDIC, have promulgated guidance governing financial institutions with concentrations in commercial real estate lending. The guidance provides that a bank has a concentration in commercial real estate lending if (i) total reported loans for construction, land development, and other land represent 100% or more of total capital or (ii) total reported loans secured by multifamily and nonfarm residential properties and loans for construction, land development, and other land represent 300% or more of total capital and the banks commercial real estate loan portfolio has increased 50% or more during the prior 36 months. Owner occupied loans are excluded from this second category. If a concentration is present, management must employ heightened risk management practices that address the following key elements: including board and management oversight and strategic planning, portfolio management, development of underwriting standards, risk assessment and monitoring through market analysis and stress testing, and maintenance of increased capital levels as needed to support the level of commercial real estate lending.
Cross-Guarantee Provisions. The Financial Institutions Reform, Recovery and Enforcement Act of 1989, or the FIRREA, contains a cross-guarantee provision which generally makes commonly controlled insured depository institutions liable to the FDIC for any losses incurred in connection with the failure of a commonly controlled depository institution.
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Community Reinvestment Act. The CRA and the regulations issued thereunder are intended to encourage banks to help meet the credit needs of their entire service area, including low and moderate income neighborhoods, consistent with the safe and sound operations of such banks. These regulations also provide for regulatory assessment of a banks record in meeting the needs of its service area when considering applications to establish branches, merger applications and applications to acquire the assets and assume the liabilities of another bank. The FIRREA requires federal banking agencies to make public a rating of a banks performance under the CRA. In the case of a bank holding company, the CRA performance record of the banks involved in the transaction are reviewed in connection with the filing of an application to acquire ownership or control of shares or assets of a bank or to merge with any other bank holding company. An unsatisfactory CRA record could substantially delay approval or result in denial of an application.
Consumer Laws and Regulations. In addition to the laws and regulations discussed herein, the Bank is also subject to certain consumer laws and regulations that are designed to protect consumers in transactions with banks. While the list set forth herein is not exhaustive, these laws and regulations include the Truth in Lending Act, the Truth in Savings Act, the Electronic Funds Transfer Act, the Expedited Funds Availability Act, the Equal Credit Opportunity Act, and the Fair Housing Act, among others. These laws and regulations mandate certain disclosure requirements and regulate the manner in which financial institutions must deal with customers when taking deposits or making loans to such customers. The Bank must comply with the applicable provisions of these consumer protection laws and regulations as part of their ongoing customer relations.
The Dodd-Frank Act created a new independent Consumer Financial Protection Bureau, which will have broad authority to regulate and supervise retail financial services activities of banks, such as the Bank, and will have the authority to promulgate regulations, issue orders, guidance and policy statements, conduct examinations and bring enforcement actions with regard to consumer financial products and services. In general, however, banks with assets of $10 billion or less, such as the Bank, will continue to be examined for consumer compliance by their primary bank regulator.
Anti-Money Laundering and Anti-Terrorism Legislation. A major focus of governmental policy on financial institutions in recent years has been aimed at combating money laundering and terrorist financing. The USA PATRIOT Act of 2001, or the USA Patriot Act, substantially broadened the scope of U.S. anti-money laundering laws and regulations by imposing significant new compliance and due diligence obligations, creating new crimes and penalties and expanding the extra-territorial jurisdiction of the United States. The U.S. Treasury Department has issued and, in some cases, proposed a number of regulations that apply various requirements of the USA Patriot Act to financial institutions. These regulations impose obligations on financial institutions to maintain appropriate policies, procedures and controls to detect, prevent and report money laundering and terrorist financing and to verify the identity of their customers. Certain of those regulations impose specific due diligence requirements on financial institutions that maintain correspondent or private banking relationships with non-U.S. financial institutions or persons. Failure of a financial institution to maintain and implement adequate programs to combat money laundering and terrorist financing, or to comply with all of the relevant laws or regulations, could have serious legal and reputational consequences for the institution.
Office of Foreign Assets Control Regulation. The United States has imposed economic sanctions that affect transactions with designated foreign countries, nationals and others. These are typically known as the OFAC rules based on their administration by the U.S. Treasury Department Office of Foreign Assets Control, or OFAC. The OFAC-administered sanctions targeting certain countries take many different forms. Generally, however, they contain one or more of the following elements: (i) restrictions on trade with or investment in a sanctioned country, including prohibitions against direct or indirect imports from and exports to a sanctioned country and prohibitions on U.S. persons engaging in financial transactions relating to making investments in, or providing investment-related advice or assistance to, a sanctioned country; and (ii) a blocking of assets in which the government or specially designated nationals of the sanctioned country have an interest, by prohibiting transfers of property subject to a U.S. jurisdiction (including property in the possession or control of U.S.
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persons). Blocked assets (e.g., property and bank deposits) cannot be paid out, withdrawn, set off or transferred in any manner without a license from OFAC. Failure to comply with these sanctions could have serious legal and reputational consequences.
Privacy. In addition to expanding the activities in which banks and bank holding companies may engage, the GLB Act also imposed new requirements on financial institutions with respect to customer privacy. The GLB Act generally prohibits disclosure of customer information to nonaffiliated third parties unless the customer has been given the opportunity to object and has not objected to such disclosure. Financial institutions are further required to disclose their privacy policies to customers annually. Financial institutions, however, are required to comply with state law if it is more protective of customer privacy than the GLB Act.
The USA Patriot Act. The USA Patriot Act is intended to strengthen U.S. law enforcements and the intelligence communitys ability to work cohesively to combat terrorism on a variety of fronts. The potential impact of the USA Patriot Act on financial institutions of all kinds is significant and wide ranging. The USA Patriot Act requires financial institutions to prohibit correspondent accounts with foreign shell banks, establish an anti-money laundering program that includes employee training and an independent audit, follow minimum standards for identifying customers and maintaining records of the identification information and make regular comparisons of customers against agency lists of suspected terrorists, their organizations and money launderers.
Changes in Laws, Regulations or Policies
In light of current conditions and the market outlook for continuing weak economic conditions, regulators have increased their focus on the regulation of financial institutions. From time to time, various legislative and regulatory initiatives are introduced in Congress and state legislatures. Such initiatives may change banking statutes and the operating environment of Independent Bank Group and the Bank in substantial and unpredictable ways. Independent Bank Group cannot determine the ultimate effect that any potential legislation, if enacted, or implementing regulations with respect thereto, would have, upon the financial condition or results of operations of Independent Bank Group or the Bank. A change in statutes, regulations or regulatory policies applicable to Independent Bank Group or the Bank could have a material effect on the financial condition, results of operations or business of Independent Bank Group and the Bank.
Dodd-Frank Act. In July 2010, Congress enacted the Dodd-Frank Act regulatory reform legislation, which President Obama signed into law on July 21, 2010. This new law broadly affects the financial services industry by implementing changes to the financial regulatory landscape aimed at strengthening the sound operation of the financial services sector, including provisions that, among other things, has created a new agency, the Consumer Financial Protection Bureau (as discussed above), and will:
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apply the same leverage and riskbased capital requirements that apply to insured depository institutions to most bank holding companies, which, among other things, will require the Company to deduct all trust preferred securities issued on or after May 19, 2010 from the Companys Tier 1 capital (existing trust preferred securities issued prior to May 19, 2010 for all bank holding companies with less than $15.0 billion in total consolidated assets as of December 31, 2009 are exempt from this requirement); |
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broaden the base for FDIC insurance assessments from the amount of insured deposits to average total consolidated assets less average tangible equity during the assessment period (subject to risk-based adjustments that would further reduce the assessment base for custodial banks) rather than domestic deposits; |
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permanently increase FDIC deposit insurance maximum to $250,000 and provide unlimited FDIC deposit insurance beginning December 31, 2010 until January 1, 2013 for noninterest bearing demand transaction accounts at all insured depository institutions; |
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eliminate the upper limit for the reserve ratio designated by the FDIC each year, increase the minimum designated reserve ratio of the deposit insurance fund from 1.15% to 1.35% of the estimated amount of total insured deposits by September 30, 2020 and eliminate the requirement that the FDIC pay dividends to depository institutions when the reserve ratio exceeds certain thresholds; |
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permit banks to engage in de novo interstate branching if the laws of the state where the new branch is to be established would permit the establishment of the branch if it were chartered by such state; |
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repeal the federal prohibitions on the payment of interest on demand deposits, thereby permitting depository institutions to pay interest on business transaction and other accounts; |
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eliminate the ceiling and increase the floor on the size of the FDICs deposit insurance fund; |
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implement corporate governance revisions, including with regard to executive compensation and proxy access by shareholders, that apply to all public companies, not just financial institutions; and |
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increase the authority of the Federal Reserve to examine the Company and any nonbank subsidiaries. |
In addition, the Dodd-Frank Act addresses many investor protection, corporate governance and executive compensation matters that will affect publicly traded companies. However, under the JOBS Act there are certain exceptions to these requirements for so long as a publicly traded qualifies as an emerging growth company.
The Companys management is actively reviewing the provisions of the DoddFrank Act and assessing its probable impact on its business, financial condition, and results of operations. Provisions in the Dodd-Frank Act that affect deposit insurance assessments and payment of interest on demand deposits could increase the costs associated with deposits as well as place limitations on certain revenues those deposits may generate. Provisions in the legislation that revoke the Tier 1 capital treatment of newly issued trust preferred securities could require the Company to seek other sources of capital in the future. Many aspects of the Dodd-Frank Act are subject to rulemaking and will take effect over several years, making it difficult to anticipate the overall financial impact on the Company, its customers or the financial industry more generally.
Incentive Compensation. In June 2010, the Federal Reserve, the OCC and the FDIC issued comprehensive final guidance on incentive compensation policies intended to ensure that the incentive compensation policies of banking organizations do not undermine the safety and soundness of such organizations by encouraging excessive risk-taking. The guidance, which covers all employees that have the ability to materially affect the risk profile of an organization, either individually or as part of a group, is based upon the key principles that a banking organizations incentive compensation arrangements should (i) provide incentives that do not encourage risk-taking beyond the organizations ability to effectively identify and manage risks, (ii) be compatible with effective internal controls and risk management, and (iii) be supported by strong corporate governance, including active and effective oversight by the organizations board of directors. Also, on February 7, 2012, the FDIC proposed an interagency rule to implement certain incentive compensation requirements of the Dodd-Frank Act. Under the proposed rule, financial institutions must prohibit incentive-based compensation arrangements that encourage inappropriate risk taking that are deemed excessive or that may lead to material losses.
The Federal Reserve will review, as part of the regular, risk-focused examination process, the incentive compensation arrangements of banking organizations, such as the Company, that are not large, complex banking organizations. These reviews will be tailored to each organization based on the scope and complexity of the organizations activities and the prevalence of incentive compensation arrangements. The findings of the supervisory initiatives will be included in reports of examination. Deficiencies will be incorporated into the organizations supervisory ratings, which can affect the organizations ability to make acquisitions and take other actions. Enforcement actions may be taken against a banking organization if its incentive compensation arrangements, or related risk-management control or governance processes, pose a risk to the organizations safety and soundness and the organization is not taking prompt and effective measures to correct the deficiencies.
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Enforcement Powers of Federal and State Banking Agencies
The federal banking agencies have broad enforcement powers, including the power to terminate deposit insurance, impose substantial fines and other civil and criminal penalties, and appoint a conservator or receiver. Failure to comply with applicable laws, regulations and supervisory agreements could subject Independent Bank Group or the Bank and their subsidiaries, as well as their respective officers, directors, and other institution-affiliated parties, to administrative sanctions and potentially substantial civil money penalties. In addition to the grounds discussed above under Corrective Measures for Capital Deficiencies, the appropriate federal banking agency may appoint the FDIC as conservator or receiver for a banking institution (or the FDIC may appoint itself, under certain circumstances) if any one or more of a number of circumstances exist, including, without limitation, the fact that the banking institution is undercapitalized and has no reasonable prospect of becoming adequately capitalized, fails to become adequately capitalized when required to do so, fails to submit a timely and acceptable capital restoration plan or materially fails to implement an accepted capital restoration plan. The TDB also has broad enforcement powers over the Bank, including the power to impose orders, remove officers and directors, impose fines and appoint supervisors and conservators.
Effect on Economic Environment
The policies of regulatory authorities, including the monetary policy of the Federal Reserve, have a significant effect on the operating results of bank holding companies and their subsidiaries. Among the means available to the Federal Reserve to affect the money supply are open market operations in U.S. government securities, changes in the discount rate on member bank borrowings, and changes in reserve requirements against member bank deposits. These means are used in varying combinations to influence overall growth and distribution of bank loans, investments and deposits, and their use may affect interest rates charged on loans or paid for deposits.
Federal Reserve monetary policies have materially affected the operating results of commercial banks in the past and are expected to continue to do so in the future. The nature of future monetary policies and the effect of such policies on the business and earnings of the Company and its subsidiaries cannot be predicted.
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Executive Officers and Directors
The following table sets forth the name, age and position with the Company of each of our directors and executive officers. The business address for all of these individuals is 1600 Redbud Boulevard, Suite 400, McKinney, Texas 75069-3257.
Name |
Age |
Position with the Company |
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David R. Brooks (1) |
54 | Chairman of the Board, CEO and Director | ||||
Torry Berntsen (1)(2) |
54 | Vice Chairman, Chief Operating Officer and Director | ||||
Daniel W. Brooks (2) |
52 | Vice Chairman, Chief Risk Officer and Director | ||||
Brian E. Hobart (2) |
47 | Senior Executive Vice President and Chief Lending Officer | ||||
Michelle S. Hickox |
45 | Executive Vice President and Chief Financial Officer | ||||
Jan C. Webb (2) |
54 | Executive Vice President and Secretary | ||||
M. Brian Aynesworth (3) |
45 | Director | ||||
Douglas A. Cifu (4) |
47 | Director | ||||
William E. Fair (5) |
50 | Director | ||||
Craig E. Holmes (6) |
55 | Director | ||||
Jack M. Radke (7) |
65 | Director | ||||
G. Stacy Smith (8) |
44 | Director | ||||
Michael T. Viola (9) |
26 | Director |
(1) | Member, Strategic Planning Committee |
(2) | Title to be effective upon completion of offering |
(3) | Chair, Strategic Planning Committee and Member, Corporate Governance and Nominating Committee |
(4) | Chair, Corporate Governance and Nominating Committee |
(5) | Chair, Compensation Committee |
(6) | Chair, Audit Committee |
(7) | Member, Audit Committee and Compensation Committee |
(8) | Member, Compensation Committee and Audit Committee |
(9) | Member, Corporate Governance and Nominating Committee |
The following is a brief discussion of the business and banking background and experience of our directors and executive officers. Other than as described below, no director has any family relationship, as defined in Item 401 of Regulation S-K, with any other director or with any of our executive officers.
David R. Brooks . David R. Brooks is Chairman of the Board, CEO and a director of the Company, a position he has held since the Company was formed in 2002, and he will continue in these positions following completion of the offering. Mr. Brooks began his banking career in the early 1980s with a large regional bank and has been active in community banking since he led the investor group that acquired the Bank in 1988. Mr. Brooks has previously served as a board member of the Independent Bankers Association of Texas. He currently serves on the board of managers of Noel-Levitz, LLC, a large national higher education company, and on the Board of Trustees of Houston Baptist University, and previously served as the Chief Financial Officer at Baylor University from 2000 to 2004. Mr. Brooks currently serves on the McKinney City Council (term expires May 2013) and previously served as President of the Board of Trustees of the McKinney Independent School District for five years and served for three years on both the McKinney Economic Development Corporation Board and the McKinney Chamber of Commerce Board. David R. Brooks is the brother of Daniel W. Brooks. Mr. Brooks qualifications to serve on our Board of Directors include his extensive experience managing and overseeing the operations and growth of the Company and the Bank during his tenure as Chairman and CEO of the Company.
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Torry Berntsen . Torry Berntsen is expected to be Vice Chairman, Chief Operating Officer and a director of the Company upon completion of this offering. He is currently Vice Chairman of Corporate Development and a director, a position he has held since 2009. Prior to joining the Company, Mr. Berntsen spent 25 years in various senior management roles at The Bank of New York Mellon, or BNY Mellon, including Executive Vice President and Senior Executive Vice President of BNY Mellon and a director and President of BNY Capital Markets, Inc., a subsidiary of BNY Mellon. At BNY Mellon, he was a member of the firms Executive and Asset/Liability Committees. Previous to BNY Mellon, he spent four years at JP Morgan. Mr. Berntsen has also served since 2009 as Vice Chairman of Virtu Management, LLC, a private family management company located in New York City, which is owned by our majority shareholder, Vincent Viola. In addition to his position on the board of directors at certain portfolio companies of Virtu Management, LLC, Mr. Berntsen currently serves on the board of directors of the Norwegian Christian Home and Health Center and oversees The Tyler Berntsen Memorial Foundation. Mr. Berntsens qualifications to serve on our Board of Directors include his extensive 30 plus years of banking experience and his experience as an executive officer and director of the Company.
Daniel W. Brooks . Daniel W. Brooks is expected to be Vice Chairman, Chief Risk Officer and a director of the Company upon completion of this offering. He currently serves as Vice Chairman and a director of the Company, a position he has held since 2009. He previously served as President and a director of the Company from 2002 to 2009. He has functioned as our Chief Credit Officer throughout his tenure with our Company. Mr. Brooks began his banking career in the early 1980s with a large regional bank and has been active in community banking since the late 1980s. Mr. Brooks has served in numerous leadership roles in the Collin County community, including service as Chairman of the Board for Medical Center of McKinney and on the boards of directors of McKinney Christian Academy and the McKinney Education Foundation. Daniel W. Brooks is the brother of David R. Brooks. Mr. Brooks qualifications to serve on our Board of Directors include his extensive experience as an executive officer and director of the Company.
Brian E. Hobart. Brian E. Hobart is expected to be Senior Executive Vice President and Chief Lending Officer of the Company and will serve as President-Independent Bank Central Texas upon completion of this offering. Since 2009, he has functioned as Chief Lending Officer, serving as President and as a director at both the Company and the Bank during this time. Mr. Hobart was one of the founders of IBG Central Texas and served as its President and as a director from 2004 until January 2009. Prior to joining IBG Central Texas, he served as a senior officer of other Waco banks for 13 years. Mr. Hobart is a former member of the board of the McKinney Education Foundation.
Michelle S. Hickox . Michelle S. Hickox is Executive Vice President and Chief Financial Officer of the Company and will continue in that capacity upon completion of the offering. Prior to joining the Company in May 2012, Ms. Hickox was an audit partner with McGladrey LLP, the fifth largest public accounting firm in the United States. Over her 22 year career in public accounting, Ms. Hickox provided audit, financial reporting, internal control assistance and training to community banks and was a designated financial institution specialist within McGladrey LLP. Ms. Hickox is a licensed certified public accountant and is a member of the AICPA, the Texas Society of Certified Public Accountants and the Dallas CPA Society.
Jan C. Webb. Jan C. Webb is expected to be Executive Vice President and Secretary to the Board of Directors of the Company, and she will serve as Executive Vice President and Senior Operations Officer of the Bank upon completion of this offering. Since May 2012, Ms. Webb has served as Executive Vice President, Chief Operations Officer and a director of the Company. Prior to May 2012, Ms. Webb served as Executive Vice President, Chief Financial Officer and as a director of the Company since it was formed in 2002. Ms. Webb has over 30 years of experience in the banking industry, including approximately 25 years of experience with our management team. She is active in her church, serving on various committees, including the finance committee.
M. Brian Aynesworth . M. Brian Aynesworth is a member of the Board of Directors of the Company, joining the board in 2009. Upon completion of this offering, Mr. Aynesworth will resign from his position as Executive Vice President of the Bank, a position he has held since 2009. He was a founder of IBG Central Texas
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and served as a director and Executive Vice President of that entity from 2004 until it was combined with our Company in 2009. Mr. Aynesworth has also served as the President and Chief Executive Officer of Southwestern Commercial Properties, LLC, a private real estate company, since 2002 and on the board of directors of Capstone Mechanical, LP, a professional engineering, contracting and service company, since 2005. He is active in the Waco community, serving on the boards of several local charitable organizations, including the Boys & Girls Club of Waco, the Waco Montessori School, and the First Presbyterian Church Waco Foundation. Mr. Aynesworths qualifications to serve on our Board of Directors include his extensive experience as a director and officer of the Company, the Bank and IBG Central Texas.
Douglas A. Cifu. Douglas A. Cifu is a member of the Companys Board of Directors, joining the board in 2008. Mr. Cifu has served as the President and Chief Operating Officer of Virtu Financial, LLC, a global electronic market making firm, since 2008 when he co-founded the business with our majority shareholder, Vincent Viola. Mr. Cifu also has served as the President and Chief Operating Officer of Virtu Management LLC since 2008. Prior to the founding of Virtu Financial, LLC in 2008, Mr. Cifu was a partner at the international law firm of Paul, Weiss, Rifkind, Wharton & Garrison, LLP, where he served as Deputy Chairman of the Corporate Department, Head of the Private Equity Group and a member of the firms Management Committee. Mr. Cifus qualifications to serve on our Board of Directors include his extensive experience representing and working with publicly traded companies and his experience as a director of the Company.
William E. Fair . William E. Fair is a member of the Board of Directors of the Company. He joined the board when IBG Central Texas was combined with our Company in 2009, prior to which he served as a director of IBG Central Texas beginning in 2007. Mr. Fair has served as the Chairman and Chief Executive Officer of Home Abstract and Title Company, a title insurance agency located in Waco, Texas, since 1988 and has served on the board of directors of Capstone Mechanical, LP since 2005. He serves on the board of trustees of Hillcrest Baptist Medical Center, Scott & White Healthcare, further serving as Chairman of the Board of Development for that organization. Mr. Fairs qualifications to serve on our Board of Directors include his extensive experience in the real estate industry and his experience as a director of the Company, the Bank and IBG Central Texas.
Craig E. Holmes . Craig E. Holmes was elected to our Board of Directors in February 2013. Mr. Holmes is the Chief Financial Officer of Digital Generation, Inc., a NASDAQ traded global advertising campaign management company that he joined in October 2012. Mr. Holmes previously served as Executive Vice President and Chief Financial Officer of Quickoffice Inc., a mobile software company, from 2011 to 2012, provided advisory and consulting services to the board of directors and management and led the finance functions for Enfora Inc., a global manufacturing and software development company, from 2009 to 2011, and served as Executive Vice President and Chief Financial Officer of Intervoice, Inc., a publicly traded global software and services company, from 2003 to 2009. Mr. Holmes has also previously served as Executive Vice President and Chief Financial Officer of Masergy Communications, Inc., a network services and equipment provider, as Chief Financial Officer of EpicRealm Inc., a software development and network services company, and as Executive Vice President and Chief Financial Officer of Excel Communications, Inc., a provider of telecommunications equipment and services. Prior to joining Excel Communications, Mr. Holmes was a partner at Arthur Andersen, a national public accounting firm, where he worked from 1992 to 1995. Mr. Holmes qualifications to serve on our Board of Directors include his extensive experience as chief financial officer of publicly traded companies and his twenty years experience in finance and accounting.
Jack M. Radke . Jack M. Radke has served as a member of the Board of Directors of the Company since it was formed in 2002. He has served as the Chairman of the Banks Audit Committee since January 2011. Mr. Radke is the owner of Ag-Power, Inc., which sells agricultural and consumer equipment through its John Deere dealerships, and has served as its President since 1988. He is also currently a board member for the Southwestern Association of Kansas City, an association of equipment dealers for a five state area. Mr. Radkes qualifications to serve on our Board of Directors include his extensive experience as a director of the Company and member of the audit committee of the Bank.
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G. Stacy Smith. G. Stacy Smith was elected to our Board of Directors in February 2013. Mr. Smith is co-founder and is an active partner in Trinity Investment Group. Trinity Investment Group invests in private equity, public equity and hard assets. Mr. Smith is also co-founder, Chairman and a member of the Investment Committee of Stonelake Capital Partners, a private investment firm. In addition, he serves as an advisor of EAW Energy Partners, an oil and gas minerals acquisition firm. In 1997, Mr. Smith co-founded Walker Smith Capital, a long/short equity hedge fund based in Dallas, Texas, and he served as portfolio manager of that firm for sixteen years. From 1994 through 1996, Mr. Smith was a co-founder and manager of Gryphon Partners, a long/short equity hedge fund focused on small and mid-cap domestic equities. He started his investment career as an energy analyst at Wasserstein Perella & Co., an international investment bank. Mr. Smith is a member of the Salesmanship Club of Dallas, an association of business professionals that supports local charitable organizations. Mr. Smiths qualifications to serve on our Board of Directors include his extensive experience in overseeing the management of investment firms and his knowledge of the Texas banking market.
Michael T. Viola . Michael T. Viola was elected to our Board of Directors in February 2013. Mr. Viola is an energy and commodities futures trader at Virtu Financial LLC, a global electronic market making firm that employs advanced proprietary technologies to trade on electronically accessible financial exchanges and market centers worldwide that he joined in 2010, serving as an executive assistant and a project manager. Mr. Viola has also served on the board of a family-founded nonprofit organization focused on Catholic education initiatives in inner-city communities from 2010 to 2011. Mr. Viola is the son of our majority shareholder, Vincent Viola. Mr. Violas qualifications to serve on our Board of Directors include his knowledge of financial markets and his familiarity with our Company given his familys ownership of the Bank over the past 24 years.
Board Composition
Our Board of Directors currently has ten members. The number of directors may be changed only by resolution of our Board of Directors within the range set forth in our certificate of formation (unless our shareholders act to amend the authorized number of directors designated in our certificate of formation). Our Board of Directors may increase the number of directors by two and fill these vacancies until the next annual meeting of shareholders. As discussed in greater detail below, our Board of Directors has affirmatively determined that six of our ten current directors qualify as independent directors based upon the rules of the NASDAQ Global Market and the SEC.
Election and Classification of Directors
In accordance with the terms of our amended and restated certificate of formation, our Board of Directors is divided into three classes, Class I, Class II and Class III, with each class serving staggered three-year terms as follows:
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the Class I directors are Torry Berntsen, Jack M. Radke and G. Stacy Smith, and their term will expire at the annual meeting of shareholders to be held in 2014; |
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the Class II directors are Daniel W. Brooks, Michael Viola, William E. Fair and Craig E. Holmes, and their term will expire at the annual meeting of shareholders to be held in 2015; and |
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the Class III directors are David R. Brooks, Douglas A. Cifu and M. Brian Aynesworth, and their term will expire at the annual meeting of shareholders to be held in 2016. |
At each annual meeting of shareholders, or special meeting in lieu thereof, upon the expiration of the term of a class of directors, the successors to such directors will be elected to serve from the time of election and qualification until the third annual meeting following his or her election and the election and qualification of his or her successor. Any additional directorships resulting from an increase in the number of directors (as discussed above) will be distributed by the Board of Directors among the three classes so that, as nearly as possible, each class will consist of one-third of the directors.
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Board and Committee Matters
Director Independence
Under the rules of the NASDAQ Global Market, independent directors must comprise a majority of our Board of Directors within a specified period of time of this offering. The rules of the NASDAQ Global Market, as well as those of the SEC, also impose several other requirements with respect to the independence of our directors.
Our Board of Directors has evaluated the independence of its members based upon the rules of the NASDAQ Global Market and the SEC. Applying these standards, our Board of Directors has affirmatively determined that, with the exception of Messrs. David R. Brooks, Torry Berntsen, Daniel W. Brooks and M. Brian Aynesworth, each of our current directors is an independent director, as defined under the applicable rules. The board determined that each of David R. Brooks, Torry Berntsen, Daniel W. Brooks and M. Brian Aynesworth does not qualify as an independent director because of his position as an executive officer of the Company or the Bank. Even though Mr. Aynesworth is resigning from his executive officer position with the Bank upon consummation of this offering, Mr. Aynesworth can not be deemed to be independent under the rules of the NASDAQ Global Market for a period of three years from the date of his resignation.
Board Leadership Structure
David R. Brooks currently serves as our Chairman of the Board and CEO. Mr. Brooks has served in both of these positions since the inception of the Company in 2002. Mr. Brooks primary duties are to lead the Companys Board of Directors in establishing the Companys overall vision and strategic plan and to lead the Companys management in carrying out that plan. While we recognize the inherent conflict of interest that arises when the positions are held by one person, we believe that the overall benefit of Mr. Brooks leadership in both roles outweighs any potential disadvantage of this structure. The Companys lead independent director is Douglas A. Cifu.
We have also structured our management team to mitigate the corporate governance risk related to the dual positions held by David R. Brooks. Daniel W. Brooks, our future Vice Chairman and Chief Risk Officer, will be responsible for overseeing the Companys credit function, the most important component of our operations. Torry Berntsen, our future Vice Chairman and Chief Operating Officer, will be responsible for supervising the Companys operations and technology in addition to overall expansion and development. In that role, Mr. Berntsen will assist our Board of Directors in overseeing management and ensuring that the Company is operating to implement the strategies set by the Board of Directors and in compliance with established policies and procedures. By having two vice chairmen with separate and distinct roles, we believe that we will obtain benefits similar to the benefits of having a separate Chairman and CEO.
Board Committees
In February 2013, our Board of Directors established standing committees at the Company level in connection with the discharge of its responsibilities. These committees include an Audit Committee, a Compensation Committee, a Corporate Governance and Nominating Committee, and a Strategic Planning Committee. Currently and historically, the Banks board of directors has had an Audit Committee, Compensation Committee, and Corporate Governance and Nominating Committee.
In the future, our Board of Directors also may establish such additional committees as it deems appropriate, in accordance with applicable law and regulations and our certificate of formation and bylaws.
Audit Committee
The members of our Audit Committee are Messrs. Holmes (Chairman), Radke and Smith. Our Board of Directors has evaluated the independence of each of the members of our Audit Committee and has affirmatively
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determined that (i) each of the members of our Audit Committee meets the definition of an independent director under NASDAQ Global Market rules, (ii) each of the members satisfies the additional independence standards under applicable SEC rules for audit committee service and (iii) each of the members has the ability to read and understand fundamental financial statements. In addition, our Board of Directors has determined that Craig E. Holmes is a financial expert and has the required financial sophistication due to his experience and background, which NASDAQ Global Market rules require at least one such Audit Committee member have.
Our Audit Committee has responsibility for, among other things:
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selecting and reviewing the performance of our independent auditors and approving, in advance, all engagements and fee arrangements; |
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reviewing the independence of our independent auditors; |
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reviewing actions by management on recommendations of the independent auditors and internal auditors; |
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meeting with management, the internal auditors and the independent auditors to review the effectiveness of our system of internal control and internal audit procedures; |
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reviewing our earnings releases and reports filed with the SEC; |
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reviewing reports of bank regulatory agencies and monitoring managements compliance with recommendations contained in those reports; and |
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handling such other matters that are specifically delegated to the Audit Committee by our Board of Directors from time to time. |
Our Audit Committee has adopted a written charter, which sets forth the committees duties and responsibilities. The charter of the Audit Committee will be available on our website at www.independent-bank.com upon completion of this offering.
Compensation Committee
The members of our Compensation Committee are Messrs. Fair (Chairman), Radke and Smith. Our Board of Directors has evaluated the independence of each of the members of our Compensation Committee and has affirmatively determined that each of the members of our Compensation Committee meets the definition of an independent director under NASDAQ Global Market rules.
Our board has determined that each of the members of the Compensation Committee qualifies as a nonemployee director within the meaning of Rule 16b-3 under the Exchange Act and an outside director within the meaning of Section 162(m) of the Internal Revenue Code of 1986, as amended.
Our Compensation Committee has responsibility for, among other things:
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reviewing, monitoring and approving our overall compensation structure, policies and programs (including benefit plans) and assessing whether the compensation structure establishes appropriate incentives for our executive officers and other employees and meets our corporate objectives; |
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determining the annual compensation of our named executive officers; |
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reviewing the compensation decisions made by our named executive officers with respect to our other executive officers; |
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overseeing the administration of our equity plans and other incentive compensation plans and programs and preparing recommendations and periodic reports to our Board of Directors relating to these matters; |
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preparing the Compensation Committee report required by SEC rules to be included in our annual report; and |
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handling such other matters that are specifically delegated to the Compensation Committee by our Board of Directors from time to time. |
Our Compensation Committee has adopted a written charter, which sets forth the committees duties and responsibilities. The charter of the Compensation Committee will be available on our website at www.independent-bank.com upon completion of this offering.
Corporate Governance and Nominating Committee
The members of our Corporate Governance and Nominating Committee are Messrs. Cifu (Chairman), Aynesworth and Viola. Our Board of Directors has evaluated the independence of each of the members of our Corporate Governance and Nominating Committee and has affirmatively determined that Messrs. Cifu and Viola of our Corporate Governance and Nominating Committee meet the definition of an independent director under NASDAQ Global Market rules, but that Mr. Aynesworth does not because he is currently an executive officer of the Bank. Even though Mr. Aynesworth is resigning from his executive officer position with the Bank upon consummation of this offering, Mr. Aynesworth can not be deemed to be independent under the rules of the NASDAQ Global Market for a period of three years from the date of his resignation.
Our Corporate Governance and Nominating Committee has responsibility for, among other things:
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recommending persons to be selected by our Board of Directors as nominees for election as directors and to fill any vacancies on our Board of Directors; provided that if this Committee is not comprised solely of independent directors under the NASDAQ Global Market rules, the Committee shall make its recommendations to the independent members of our Board of Directors, who, in turn, shall nominate persons to be selected by our Board as nominees for election as directors and to fill any vacancies on our Board; |
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monitoring the function of our standing committees and recommending any changes, including the creation or elimination of any committee; |
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developing, reviewing and monitoring compliance with our corporate governance guidelines; |
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reviewing and approving all related person transactions for potential conflicts of interest situations on an ongoing basis; |
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reviewing annually the composition of our Board of Directors as a whole and making recommendations; and |
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handling such other matters that are specifically delegated to the Corporate Governance and Nominating Committee by our Board of Directors from time to time. |
Our Corporate Governance and Nominating Committee has adopted a written charter, which sets forth the committees duties and responsibilities. The charter of the Corporate Governance and Nominating Committee will be available on our website at www.independent-bank.com upon completion of this offering.
In carrying out its functions, the Corporate Governance and Nominating Committee will develop qualification criteria for all potential nominees for election, including incumbent directors, board nominees and shareholder nominees to be included in the Companys future proxy statements. These criteria will include the following attributes:
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integrity and high ethical standards in the nominees professional life; |
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sufficient educational and professional experience, business experience or comparable service on other boards of directors to qualify the nominee for service on the Board of Directors of the Company; |
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evidence of leadership and sound judgment in the nominees professional life; |
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whether the nominee is well recognized in the community and has a demonstrated record of service to the community; |
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a willingness to abide by any published code of conduct or ethics for the Company; and |
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a willingness and ability to devote sufficient time to carrying out the duties and responsibilities required as a member of the Companys Board of Directors. |
The Corporate Governance and Nominating Committee will also evaluate potential nominees for the Companys Board of Directors to determine if they have any conflicts of interest that may interfere with their ability to serve as effective board members and to determine whether they are independent in accordance with NASDAQ Global Market rules (to ensure that, at all times, at least a majority of our directors are independent). Although we do not have a separate diversity policy, the committee considers the diversity of the Companys directors and nominees in terms of knowledge, experience, skills, expertise and other demographics which may contribute to the Companys Board of Directors.
Prior to nominating or, if applicable, recommending to the independent members of our Board an existing director for re-election to the Companys Board of Directors, the Corporate Governance and Nominating Committee will consider and review the following attributes with respect to each existing director:
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attendance and performance at meetings of the Companys Board of Directors and the committees on which such director serves; |
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length of service on the Companys Board of Directors; |
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experience, skills and contributions that the existing director brings to the Companys Board of Directors; |
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independence and any conflicts of interest; and |
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any significant change in the directors status, including the attributes considered for initial membership on the Companys Board of Directors. |
Strategic Planning Committee
The members of the Strategic Planning Committee are Messrs. Aynesworth (Chairman), David Brooks, and Berntsen. Our Board of Directors has evaluated the independence of each of the members of our Strategic Planning Committee and has affirmatively determined that none of these committee members meets the definition of an independent director under NASDAQ Global Market rules because Messrs. Brooks and Berntsen are executive officers of the Company and Mr. Aynesworth is an executive officer of the Bank. Even though Mr. Aynesworth is resigning from his executive officer position with the Bank upon consummation of this offering, Mr. Aynesworth can not be deemed to be independent under the rules of the NASDAQ Global Market for a period of three years from the date of his resignation.
Our Strategic Planning Committee has responsibility for, among other things:
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establishing plans for the growth of our Company, including organic growth plans and strategic acquisitions; |
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identifying new market areas; |
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identifying new management candidates to enhance product and geographic expansion; |
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identifying acquisition targets and developing plans to pursue acquisitions of such identified targets; and |
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reviewing capital and financing levels, financial partners, and ensuring continued access to capital and financing. |
Our Strategic Planning Committee has adopted a written charter, which sets forth the committees duties and responsibilities. The charter of the Strategic Planning Committee will be available on our website at www.independent-bank.com upon completion of this offering.
Loan and Asset/Liability Management
The Bank maintains a Director Loan Committee and an Asset/Liability Committee. The Loan Committee is responsible for reviewing and approving any loan in excess of $2.5 million. The Asset/Liability Committee has responsibility for, among other things, monitoring the maturities and overall mix of the Companys and the Banks interest rate sensitive assets and liabilities.
Code of Conduct; Code of Ethics for Chief Executive Officer and Senior Financial Officers
We have a Code of Conduct in place that applies to all of our directors, officers and employees. The Code of Conduct sets forth the standard of conduct that we expect all of our directors, officers and employees to follow, including our Chief Executive Officer and Chief Financial Officer. In addition, we have a Code of Ethics for the Chief Executive Officer and Senior Financial Officers that applies to each of our senior executive officers, including our Chief Executive Officer and our Chief Financial Officer and sets forth specific standards of conduct and ethics that we expect from such individuals in addition to those set forth in the Code of Conduct. Our Code of Conduct and our Code of Ethics for the Chief Executive Officer and Senior Financial Officers will be available on our website at www.independent-bank.com upon completion of this offering. We expect that any amendments to the Code of Conduct or the Code of Ethics for the Chief Executive Officer and Senior Financial Officers, or any waivers of their respective requirements, will be disclosed on our website, as well as any other means required by NASDAQ Global Market rules or the SEC.
Corporate Governance Guidelines
We have adopted Corporate Governance Guidelines to assist our Board of Directors in the exercise of its fiduciary duties and responsibilities and to promote the effective functioning of our Board of Directors and its committees. Our Corporate Governance Guidelines will be available on our website at www.independent-bank.com upon completion of this offering.
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EXECUTIVE COMPENSATION AND OTHER MATTERS
In this prospectus, the individuals who served as our Chief Executive Officer and Chief Financial Officer during 2012, as well as our three other most highly compensated executive officers for 2012, are collectively referred to as our named executive officers. We discuss their compensation for 2012, 2011 and 2010 below.
Summary Compensation Table
The following table sets forth information regarding the compensation paid to each of our named executive officers for 2011 and 2010.
Name and Position |
Year | Salary (1) | Bonus (2) |
Stock
Awards |
All Other
Compensation (3) |
Total | ||||||||||||||||||
David R. Brooks, Chairman and CEO |
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2012
2011 2010 |
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$
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750,000
750,000 678,700 |
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$
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600,000
468,475 400,000 |
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$
|
|
|
$
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103,781
45,745 286,349 |
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$
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1,453,781
1,264,220 1,365,049 |
|
||||||
Michelle S. Hickox, Executive Vice President and CFO (4) |
2012 | 120,000 | 50,000 | 65,000 | 7,743 | 242,743 | ||||||||||||||||||
2011 | | | | | | |||||||||||||||||||
2010 | | | | | | |||||||||||||||||||
Daniel W. Brooks, Vice Chairman (5) |
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2012
2011 2010 |
|
|
310,000
300,000 279,200 |
|
|
140,000
115,000 95,000 |
|
|
65,000
|
|
|
101,552
54,165 65,544 |
|
|
616,552
469,165 439,744 |
|
||||||
Brian E. Hobart, President (6) |
|
2012
2011 2010 |
|
|
285,000
275,000 253,000 |
|
|
130,000
100,000 75,000 |
|
|
65,000
|
|
|
53,882
55,961 164,556 |
|
|
533,882
430,961 492,556 |
|
||||||
Jan C. Webb, Executive Vice President and Chief Operations Officer (7) |
2012 | 195,000 | 40,000 |
|
16,250
|
|
51,143 | 302,393 | ||||||||||||||||
2011 | 190,000 | 40,000 | | 39,060 | 269,060 | |||||||||||||||||||
2010 | 180,000 | 36,000 | | 72,188 | 288,188 |
(1) | The amounts shown in this column represent salaries earned during the fiscal year shown. |
(2) | The amounts of bonuses for each year shown were cash bonuses earned for that year, but that were paid in the following fiscal year. |
(3) | Includes 401(k) contributions, health and welfare benefits, restricted stock related payments, insurance premiums and certain perquisites and other benefits. Other than certain restricted stock related payments, none of these components of All Other Compensation exceeded $25,000 in any one year. |
(4) | Ms. Hickox joined the Company as Executive Vice President and Chief Financial Officer in May 2012 and the salary shown is for the partial years service. |
(5) | Mr. Brooks title will change to Vice Chairman and Chief Risk Officer upon completion of this offering. |
(6) | Mr. Hobarts title will change to Senior Executive Vice President and Chief Lending Officer upon completion of this offering. At that time, Mr. Hobart will also be named as President-Independent Bank Central Texas and, in that capacity, he will be directly responsible for the Banks operations in our Austin/Central Texas market area. |
(7) | Ms. Webb served as our Chief Financial Officer until May 2012. Ms. Webbs title will change to Executive Vice President and Secretary upon completion of this offering. |
Narrative Discussion of Summary Compensation Table
General. We have compensated our named executive officers through a mix of base salary, cash incentive bonuses and other benefits, included to a limited extent, perquisites. We established our existing executive compensation philosophy and practices to fit our historical status as a privately held corporation. We believe the current mix of these compensation elements and the amounts of each element provide our named executive officers with compensation that is reasonable, competitive within our markets, appropriately reflects our
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performance and their particular contributions to that performance, and takes into account applicable regulatory guidelines and requirements. Each of our named executive officers is also an officer of the Bank and has substantial responsibilities in connection with the day-to-day operations of the Bank. As a result, each named executive officer devotes a substantial majority of his or her business time to the operations of the Bank, and the compensation he or she receives is paid largely to compensate that named executive officer for his or her services to the Bank.
We currently do not have employment agreements with any of our named executive officers, who are employees at will. As a result, the salaries and bonuses that we pay to our named executive officers are determined at the discretion of our Board of Directors after consultation with management. In addition, we have not previously maintained any change in control, severance or noncompetition agreements with any of our named executive officers and have not had obligations to make any payment under any such agreement to any of our named executive officers in the event we experience any change in the control of the Company or upon their severance from, or other termination of, their employment with us.
The Company does not maintain any defined benefit plan, actuarial benefit plan, supplemental executive retirement plan or deferred compensation plan for our named executive officers or any of other employees. Moreover, we have no plan, agreement or other arrangement with any of our named executive officers relating to the payments of any amounts upon the retirement of such named executive officer from employment with us or any other separation from service with us.
Base Salary. The base salaries of our named executive officers have been historically reviewed and set annually by the Board of Directors as part of our performance review process as well as upon the promotion of an executive officer to a new position or another change in job responsibility. In establishing base salaries for our named executive officers, our Board of Directors has relied on external market data obtained from outside sources, including the Independent Bankers Association of Texas and other banking industry trade groups. In addition to considering the information obtained from such sources, our Board of Directors has considered:
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each named executive officers scope of responsibility; |
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each named executive officers years of experience; |
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the types and amount of the elements of compensation to be paid to each named executive officer; |
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our financial performance and performance with respect to other aspects of our operations, such as our growth, asset quality, profitability and other matters, including the status of our relationship with the banking regulatory agencies; and |
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each named executive officers individual performance and contributions to our performance, including leadership, team work and community service. |
Cash Bonuses. We typically have paid a cash bonus to named executive officers. Annual incentive awards are intended to recognize and reward those named executive officers who contribute meaningfully to our performance for the year. Our Board of Directors has, within its sole discretion, determined whether such bonuses will be paid for any year and the amount of any bonus paid. The Board of Directors has not relied on any pre-established formula or specific performance measures to determine the amount of the bonuses paid, but our Board of Directors does review external market data from outside sources in setting the amount of bonuses. In determining whether to pay cash bonuses to any named executive officer for any year and the amount of any cash bonus to be paid, our Board of Directors has considered such factors, as:
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the personal performance of the executive officer and contributions to our performance for the year, including leadership, team work and community service; and |
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our financial performance, including, our growth, asset quality and profitability. |
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Benefits and Perquisites. The named executive officers are eligible to participate in the same benefit plans designed for all of our full-time employees, including health, dental, vision, disability and basic group life insurance coverage. We also provide our employees, including our named executive officers, with a 401(k) plan to assist our employees, including our named executive officers, in planning for retirement and securing appropriate levels of income during retirement. The purpose of our employee benefit plans is to help us attract and retain quality employees, including executives, by offering benefit plans similar to those typically offered by our competitors. Except as described below, none of the perquisites or benefits paid or provided to any of our named executive officers exceeded $25,000 in amount for 2012, 2011 or 2010.
Independent Bank Group 401(k) Profit Sharing Plan. The Independent Bank Group 401(k) Profit Sharing Plan, or the 401(k) Plan, is designed to provide retirement benefits to all eligible full-time and part-time employees. The 401(k) Plan provides employees the opportunity to save for retirement on a tax-favored basis. Our named executive officers, all of whom were eligible to participate in the 401(K) Plan during 2012, 2011 and 2010, may elect to participate in the 401(k) Plan on the same basis as all other employees. Employees may defer from 1% to 100% of their compensation to the 401(k) Plan up to the applicable IRS limit. We match from 50% to 100% of an employees annual contribution to the 401(K) Plan, depending on the employees years of service with us, up to a total of 6% per annum of the employees eligible salary. We make our matching contributions in cash, and that contribution is invested according to the employees current investment allocation. We made contributions to the accounts of our named executive officers accounts in the 401(k) plan in 2012, 2011 and 2010 in varying amounts depending on the amounts of the contributions made by our named executive officers to their respective 401(k) Plan accounts.
Health and Welfare Benefits. Our named executive officers are eligible to participate in our standard health and welfare benefits program, which offers medical, dental, vision, life, accident, and disability coverage to all of our eligible employees. We do not provide the named executive officers with any health and welfare benefits that are not generally available to our other employees.
Restricted Stock-related Payments. We have agreed to pay to the holders of restricted stock granted by the Company an amount equal to 25% of the then fair market value of any shares vesting within 30 days after those shares vest. We pay that amount to provide the holder of vested shares a source of funds to pay the federal income taxes due with respect to compensation income received upon the vesting of the shares. In 2010, our named executives officers who received such payments in excess of $25,000 and the aggregate amount of such payments were: Mr. David R. Brooks, $249,975; Mr. Brian E. Hobart, $118,470; and Ms. Jan C. Webb, $34,375. No such payments were made in 2011. In 2012, our named executive officers who received such payments in excess of $25,000 and the aggregate amount of such payments were Mr. David R. Brooks, $61,000 and Mr. Daniel W. Brooks, $45,750.
Insurance Premiums. The Bank maintains bank-owned life insurance policies with respect to each of our named executive officers. Although the Bank is the named beneficiary of each of those policies, we have agreed with each of those named executive officers that if the officer dies while employed by the Bank, we will pay such named executive officers estate an amount equal to the amount of that officers salary for the year in which his or her death occurs out of the benefits the Bank receives under such policy.
Perquisites. We have provided certain of our named executive officers with a limited number of perquisites that we believe have been reasonable and consistent with our overall compensation program to better enable us to attract and retain superior employees for key positions. Our Board of Directors has periodically reviewed the levels of perquisites and other personal benefits provided to named executive officers. Based on this periodic review, perquisites are awarded or adjusted on an individual basis. The perquisites received by our named executive officers in 2012, 2011 and 2010 included automobile allowances and country club memberships. The Company intends to discontinue awarding such perquisites to its named executive officers upon the consummation of this offering.
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Outstanding Equity Awards at Fiscal Year End
The following table provides information regarding outstanding unvested stock awards held by the named executive officers as of December 31, 2012. The then outstanding stock awards were shares of restricted stock subject to forfeiture provisions that expire on the fifth anniversary of the date of grant so long as the holder of the shares remains employed by our Company or the Bank on that date.
Stock Awards as of December 31, 2012 | ||||||||
Name |
Number of Shares
of Stock that have not Vested (1) (#) |
Market Value of
Shares of Stock that have not Vested (2) |
||||||
David R. Brooks |
41,270 | $ | 838,305 | |||||
Michelle S. Hickox |
3,200 | 65,000 | ||||||
Daniel W. Brooks |
22,400 | 455,000 | ||||||
Brian E. Hobart |
24,371 | 495,040 | ||||||
Jan C. Webb |
10,400 | 211,250 |
(1) | The following table shows the dates on which the shares of restricted stock shown in the table above vest, i.e., the date on which the forfeiture provisions expire as to the shares of restricted stock held by each of our named executive officers: |
Name |
Vesting Dates |
Number of
Shares to Vest |
||||||
David R. Brooks |
March 1, 2013 | 2,870 | ||||||
January 1, 2014 | 38,400 | |||||||
Michelle S. Hickox |
May 1, 2017 | 3,200 | ||||||
Daniel W. Brooks |
January 1, 2014 | 19,200 | ||||||
January 1, 2017 | 3,200 | |||||||
Brian E. Hobart |
March 1, 2013 | 5,171 | ||||||
January 1, 2014 | 16,000 | |||||||
January 1, 2017 | 3,200 | |||||||
Jan C. Webb |
January 1, 2014 | 9,600 | ||||||
January 1, 2017 | 800 |
(2) | The market values for the outstanding stock awards presented as of December 31, 2012 are based on a fair market value of our common stock of $20.31 per share as of December 31, 2012. Our common stock has not been traded in the open market and, therefore, no established market value of a share of common stock exists. Consequently, the per share market value used to calculated the values shown in this table is based on the price at which we sold shares of our common stock in 2012. |
Director Compensation
The following table sets forth information regarding 2012 compensation for those of our directors during 2012 who will continue to be directors of our Company upon consummation of this offering and who were not named executive officers of our Company for 2012:
Name |
Fees Earned
or Paid in Cash |
All Other
Compensation |
Total | |||||||||
M. Brian Aynesworth |
$ | 2,000 | $ | 9,600 | $ | 11,600 | ||||||
Torry Berntsen |
2,000 | 9,150 | 11,150 | |||||||||
Douglas A. Cifu |
500 | | 500 | |||||||||
William E. Fair |
2,000 | 11,850 | 13,850 | |||||||||
Jack M. Radke |
2,000 | 9,900 | 11,900 |
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Director fees for 2012 were $500 per meeting attended and have remained unchanged for 2013. The amounts in All Other Compensation shown in the foregoing table are the fees paid to those directors in their capacities as directors of the Bank. Our directors who were also our named executed officers do not receive fees or other compensation for their service as directors of our Company.
We intend to modify our director compensation program upon the consummation of this offering and under that modified program our nonmanagement directors will receive an annual cash retainer of $30,000 and an annual award of shares of restricted stock under the 2013 Equity Incentive Plan with a market value of $10,000 for their service as a director. In addition, the chairman of the Audit Committee of our Board of Directors will receive an additional annual cash retainer of $10,000 and the chairmen of our Compensation Committee, our Governance and Nominating Committee and our Strategic Planning Committee will receive an additional annual cash retainer of $5,000 for their service in those roles. We will reimburse our directors for the reasonable out-of-pocket expenses they incur in connection with their service as directors, including travel costs to attend Board of Directors and Board of Directors committee meetings. We will continue not to pay directors fees to our executive officers who serve as directors of our Company.
Chief Executive Officer Compensation
The compensation that we paid Mr. David R. Brooks, our Chairman and Chief Executive Officer, during 2012 and 2011 and in the years prior thereto was determined by our Board of Directors to reflect the view of our Board of Directors of Mr. Brooks continuing contribution to the success of our operations. That compensation, including Mr. Brooks salary for 2013, which has not materially changed from his salary in 2012, and his anticipated cash bonus and equity awards for 2013, are intended to compensate Mr. Brooks for his successful leadership of the Company and the Bank and management of their operations, as reflected by our growth in assets, deposits, and net income, the expansion of our markets, the successful completion of four acquisitions in an approximately 26-month span, and the maintenance of our strong asset quality and credit culture. Mr. Brooks current compensation program, which was designed with input from our majority shareholder, is intended to provide Mr. Brooks with current and long-term compensation that, in the context of a privately held company, appropriately rewards Mr. Brooks for his contributions to the Companys overall success.
We anticipate that, if the offering contemplated by this prospectus is consummated, Mr. Brooks compensation program will be reviewed by the Compensation Committee and, if necessary, modified to bring Mr. Brooks total direct compensation into alignment with the compensation of chief executive officers of comparable publicly held bank holding companies. Although the Compensation Committee will continue to determine Mr. Brooks compensation based on its determination of what will be in the best interest of the Company and its shareholders, as was done previously by the Board of Directors we expect that, in conjunction with the consummation of this offering, our Compensation Committee will realign the components of Mr. Brooks compensation program to make the long-term equity incentive compensation he receives a greater proportion of his total direct compensation and reduce the proportion that Mr. Brooks base salary and cash bonus compensation constitutes of his total direct compensation.
We anticipate that, in the future, we will alter our compensation program for our other senior executive officers to be based on a structure similar to the structure of our Chief Executive Officers compensation program. We expect to adopt an executive compensation program that will implement an executive compensation philosophy that will help us achieve a balance of the programs incentives with protections against structural risks to be built into that program, which balance will help ensure that our short-term performance is not achieved at the expense of long-term performance and growth in shareholder value. We believe that such a program will allow us to both fairly compensate the members of our management and give them the necessary incentives to create greater shareholder value.
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Equity Incentive Plans
In connection with the consummation of this offering, we will adopt a new Equity Incentive Plan, or the 2013 Equity Incentive Plan, under which we may make annual and other equity-based awards to encourage and motivate selected key employees and our directors to contribute to the successful performance of the Company and to the growth in the value of our common stock and to help us attract, retain and reward key employees, directors and other service providers. Pursuant to the 2013 Equity Incentive Plan, the Compensation Committee may grant awards to eligible persons in the form of restricted stock, restricted stock rights, restricted stock units, qualified and nonqualified stock options, performance-based share awards, and other equity-based awards. Although we currently anticipate that in the foreseeable future we will grant only awards of restricted stock, the 2013 Equity Incentive Plan will allow us flexibility with respect to the type of equity incentive compensation we provide to our management over the next five years. Up to 800,000 shares of common stock will be available and reserved for issuance under the 2013 Equity Incentive Plan, which is anticipated to be approximately 7.0% of the outstanding shares of our common stock immediately following the consummation of this offering if the underwriters do not exercise their underwriters options in connection with this offering. Awards granted under the Equity Incentive Plan will vest and, to the extent applicable, become exercisable on the terms set forth in the Equity Incentive Plan and the award agreements notifying award recipients of awards made under the 2013 Equity Incentive Plan will contain such other terms and conditions as determined by the Compensation Committee and as are consistent with the 2013 Equity Incentive Plans provisions. The 2013 Equity Incentive Plan enables the Compensation Committee to grant share-based awards containing terms that require us to meet specific performance criteria before the shares covered by the awards will vest or will be issued to, and vest in, the award recipient. In addition, the 2013 Equity Incentive Plan allows for acceleration of vesting and exercise of grants if a plan participant is terminated without cause or in the event of the participants death or disability or upon a change in control of our Company. If an award recipients employment is terminated for cause, all unvested awards held by that award recipient will expire at the date of termination unless agreed otherwise by the Compensation Committee at its sole discretion.
We expect to issue an aggregate of 112,320 shares of restricted stock pursuant to the 2013 Equity Incentive Plan in connection with the consummation of this offering to our named executive officers, other executive officers and directors in the following amounts.
Name |
Number of
Restricted Shares to be Issued |
|||
David R. Brooks |
25,600 | |||
Torry Berntsen |
16,000 | |||
Daniel W. Brooks |
12,800 | |||
Brian E. Hobart |
11,200 | |||
Michelle S. Hickox |
8,000 | |||
Jan C. Webb |
4,800 | |||
M. Brian Aynesworth |
960 | |||
Douglas A. Cifu |
960 | |||
William E. Fair |
960 | |||
Craig E. Holmes |
960 | |||
Jack M. Radke |
960 | |||
G. Stacy Smith |
960 | |||
Michael T. Viola |
960 | |||
Senior officers of the Bank not listed above as a group (11 persons) |
27,200 |
Restricted shares granted in connection with the consummation of this offering will vest in five equal annual installments over the five years following the date of grant so long as the holder of the restricted shares continues to be employed by or provide services as a director to our Company or the Bank. We expect that the terms of all other restricted shares granted under this Equity Incentive Plan will provide for those restricted
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shares to vest in three annual installments over the three years following their date of grant so long the holder of the restricted shares remains an employee or provide services as a director to our Company or the Bank. The holders of the restricted shares will be entitled to vote those shares and to receive the same dividends on those shares as do all other shareholders, unless the restricted shares are earlier forfeited. However, the holders of unvested restricted shares will not be permitted to transfer or sell the restricted shares or any interest therein prior to the vesting of those restricted shares. If a holder of unvested shares of restricted stock terminates his or her employment with or no longer provides services as a director to the Company or the Bank, or his or her employment is terminated with cause, prior to the vesting date with respect to those shares, all such unvested shares will be forfeited. The restricted shares to be issued will vest immediately upon the death, disability or termination without cause of the holder of the shares. Upon a change in control, the restricted shares will vest immediately unless the successor company assumes the Equity Incentive Plan and the related grants, in which case vesting will continue to be governed by the Equity Incentive Plan and the terms and conditions of the applicable grants.
Last year, we adopted the 2012 Stock Grant Plan under which restricted stock rights relating to up to 96,531 shares of our common stock could be issued to employees of the Company and the Bank. We had issued restricted stock rights covering a total of 58,560 shares through January 31, 2013. Upon the consummation of this offering and the adoption of the 2013 Equity Incentive Plan, no additional restricted stock rights or other equity awards may be granted under this plan although this plan will remain in effect after the 2013 Equity Incentive Plan is adopted to govern the restricted stock rights that are then remaining outstanding. The recipient of the restricted stock rights will forfeit those rights to us if the recipient ceases to be employed by the Company or the Bank at any time prior to the fifth anniversary of the grant of the restricted stock rights. A recipient not forfeiting such restricted stock rights will receive the number of shares of our common stock to which those rights relate if he or she remains employed by us or the Bank on that anniversary date. The recipient may not vote those shares, receive any dividends or other distributions with respect to shares issuable upon the vesting of the rights or transfer or sell those rights or any interest therein. However, we pay cash bonuses to the holders of these awards equal to the amount of the dividends they would have received had they been vested in the awards and been issued shares of our common stock in settlement of the awards. If the award recipient terminates his or her employment with the Company or the Bank, or his or her employment is terminated with cause, prior to the vesting date with respect to those rights, all such unvested rights will be immediately forfeited. The restricted stock rights will vest immediately upon a change in control of the Company or the death, disability or termination without cause of the holder of the rights. The consummation of this offering will not result in a change in control. Under our 2012 Stock Grant Plans terms, we have agreed to pay to the award recipients an amount equal to 25% of the then fair market value of the shares issued to them upon the vesting of the restricted stock rights within 30 days after those rights vest. We pay that amount to provide the holder of the vested shares with funds to pay the federal income taxes due with respect to compensation income received upon the receipt of the shares.
We adopted a Stock Grant Plan in 2005 under which we issued a total of 112,000 restricted shares of our common stock to employees of the Company and the Bank. No additional shares of our restricted stock or other equity awards may be granted under this plan, although this plan will remain in effect to govern any shares of restricted stock that remain outstanding. We also issued 209,421 restricted shares of our common stock to employees of the Company and the Bank in a series of separate awards under written compensation contracts. The shares we granted under this plan and pursuant to these contracts were or are subject to forfeiture to us if the holder was or is not employed by the Company or the Bank on the fifth anniversary of the grant of the shares to the holder. A total of 150,048 of the restricted shares granted continue to be subject to forfeiture pursuant to such vesting condition, while a total of 3,360 shares of restricted stock issued under this plan and series of awards had been forfeited as of December 31, 2012. The holders of the shares that are subject to forfeiture may vote those shares and receive the same dividends on those shares as do all other shareholders. However, the holder may not transfer or sell those shares prior to satisfaction of the vesting condition. If a holder of unvested shares of restricted stock terminates his or her employment with the Company or the Bank, or his or her employment is terminated with cause, prior to the vesting date with respect to those shares, all such unvested shares will be
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forfeited. The restricted shares will vest immediately upon a change in control of the Company or the death, disability or termination without cause of the holder of the shares. The consummation of this offering will not result in such a change in control.
Noncompetition Agreements
In connection with the issuance of the shares of restricted stock we intend to issue to our executive officers and certain senior officers of the Bank pursuant to the 2013 Equity Incentive Plan, we will require that each recipient of an award enter into an award agreement that will include noncompetition and nonsolicitation covenants. Each such agreement will provide that the award recipient will not compete with us for a specified period following the termination of his or her employment with our Company or the Bank. Competition for such purposes will be defined to include such person acting as an officer, director, manager or employee of, or a consultant to, any bank holding company, bank or other financial institution conducting banking operations in our market areas in the State of Texas. The periods for which such competition will be prohibited will be two years for David R. Brooks, one year for each of Torry Berntsen, Daniel W. Brooks, Michelle S. Hickox, Brian E. Hobart and Jan C. Webb and three months for those award recipients who are senior officers of the Bank. The various award recipients will also agree not to solicit other employees or customers of our Company or the Bank for a one year period following the termination of their employment with our Company or the Bank.
Additional Information Regarding Executive Compensation
No Change of Control or Severance Payment Obligations. Other than as described in Equity Incentive Plans, we do not have any agreement with, or obligations to, any of our named executive officers or other executive officers to make any payments, accelerate any equity awards or provide any other consideration to any such officer in connection with any change in control of our Company or the Bank or such an officers severance from employment with our Company or the Bank.
Compensation Committee of Our Board of Directors. Historically, the Banks Board of Directors has maintained a Compensation Committee that has overseen the compensation for the Banks senior officers. Our Board of Directors recently established a Compensation Committee comprised solely of directors who are independent under SEC rules and the rules for the NASDAQ Global Market, including NASDAQs currently proposed rules relating to the independence of the members of Compensation Committees. See MANAGEMENT Board and Committee Matters Compensation Committee for a description of the Compensation Committees responsibilities.
Our Board of Directors has directed the Compensation Committee to review our executive officer compensation program and determine if:
|
our executive officer compensation is appropriately linked to our short-term and long-term financial and other performance; |
|
the interests of our executive officers are appropriately aligned with the interests of our shareholders or can be more appropriately aligned through greater equity ownership by our executive officers and by having a greater proportion of executive officer compensation tied to our financial and other performance; and |
|
the base salaries and incentive compensation opportunities provided to our executive officers are competitive with those packages offered by other similarly situated and similarly performing financial institutions. |
Our Board of Directors has also instructed the Compensation Committee to address such other matters relating to our executive compensation program as they deem appropriate.
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In accordance with its charter, the Compensation Committee of our Board of Directors has the responsibility and authority of establishing the philosophy that will underlie our executive compensation program, for establishing and implementing that program and for reviewing and setting the compensation of each of our named executive officers and other executive officers. Our Board of Directors has directed the Compensation Committee, in accordance with its charter, to ensure that our executive compensation program is designed and executed in a manner necessary to reflect our executive compensation philosophy, to achieve our goals and objectives and is consistent with regulatory requirements.
Compensation Policies and Practices and Our Risk Management
We believe that no risks arise from our compensation policies and practices for our executive officers and other employees that are reasonably likely to have a material adverse effect on our operations, results of operations or financial condition.
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CERTAIN RELATIONSHIPS AND RELATED PERSON TRANSACTIONS
Related Person Transaction Review Policy
We have adopted a formal written policy concerning related party transactions. A related party transaction is a transaction, arrangement or relationship or a series of similar transactions, arrangements or relationships in which the amount involved exceeds $120,000, in which we or one of our consolidated subsidiaries participates (whether or not we or the subsidiary is a direct party to the transaction), and in which a director, nominee to become a director, executive officer or employee of our Company or one of our consolidated subsidiaries or any of his or her immediate family members or any entity that any of them controls or in which any of them has a substantial beneficial ownership interest has a direct or indirect material interest; or in which any person who is the beneficial owner of more than 5% of our voting securities or a member of the immediate family of such person has a direct or indirect material interest. Upon completion of this offering, a copy of our policy may be found on our website at www.independent-bank.com .
Our policy requires our Corporate Governance and Nominating Committee to ensure that we maintain an ongoing review process for all related party transactions for potential conflicts of interest and requires that our Corporate Governance and Nominating Committee pre-approve any such transactions or, if for any reason pre-approval is not obtained, to review, ratify and approve or cause the termination of such transactions. Our Corporate Governance and Nominating Committee evaluates each related party transaction for the purpose of recommending to the disinterested members of our board whether the transaction is fair, reasonable and permitted to occur under our policy, and should be pre-approved or ratified and approved by our board. Relevant factors considered relating to any approval or ratification include the benefits of the transaction to us, the terms of the transaction and whether the transaction will be or was on an arms-length basis and in the ordinary course of our business, the direct or indirect nature of the related partys interest in the transaction, the size and expected term of the transaction and other facts and circumstances that bear on the materiality of the related party transaction under applicable law and listing standards. At least quarterly, management will provide our Corporate Governance and Nominating Committee with information pertaining to related party transactions. Related party transactions entered into, but not approved or ratified as required by our policy concerning related party transactions, will be subject to termination by us or the relevant subsidiary, if so directed by our Corporate Governance and Nominating Committee or our board, taking into account factors as deemed appropriate and relevant. Lending and other banking transactions in the ordinary course of business and consistent with the insider loan provisions of Regulation O of the Federal Reserve are not treated as related party transactions under this policy and, instead, these transactions are monitored and approved, if necessary, by the Banks board. In addition, any transaction in which the rates or charges are determined by competitive bids are not subject to approval under the policy.
Our directors, officers, beneficial owners of more than 5% of our voting securities and their associates were customers of and had transactions with us in the past, and additional transactions with these persons are expected to take place in the future. All outstanding loans and commitments to loan with these persons were made in the ordinary course of business, were made on the same terms, including interest rates and collateral, as those prevailing at the time for comparable transactions with persons not related to the Company or the Bank and did not involve more than the normal risk of collectability or present other unfavorable features. All such loans are approved by the Banks board of directors in accordance with the bank regulatory requirements. Similarly, all certificates of deposit and depository relationships with these persons were made in the ordinary course of business and involved substantially the same terms, including interest rates, as those prevailing at the time for comparable depository relationships with persons not related to the Company or the Bank.
Related Person Transactions
The following is a description of transactions during and after December 2008 in which we have participated and in which one or more of our directors, executive officers or beneficial holders of more than 5%
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of our capital stock, or their immediate family members or entities affiliated with them, had or will have a direct or indirect material interest.
Issuance of Warrants
The Company restructured its credit facility with TIB The Independent Bankers Bank, or TIB, in December 2008. At that time, the Company reallocated its credit facility between senior secured debt and subordinated debt. To complete this restructure, certain shareholders of the Company agreed to purchase $4.5 million in subordinated debt held by TIB in certain circumstances. The Company issued warrants to purchase shares of our common stock to these shareholders to compensate them for undertaking this credit enhancement risk.
The Company issued the warrants in December 2008 to purchase a total of 150,544 shares, all of which are currently outstanding and currently exercisable. The exercise price is $17.19 per share. The warrants must be exercised by December 23, 2018, and are not assignable. When, if and to the extent the warrants are exercised, the Company will receive additional capital and the number of outstanding shares of our common stock will increase. The following table lists the warrants issued to certain of our directors, executive officers and beneficial holders of 5% of our voting securities and their respective affiliates:
Shareholder/Directors/Executive Officers |
Warrants | |||
Vincent J. Viola |
93,091 | |||
David R. Brooks |
23,270 |
Issuance of Subordinated Debentures
Since January 2009, we have conducted four separate private placements of our 7% fixed rate subordinated debentures to raise capital to support our growth and expansion efforts. The material terms of each series of debentures are the same and are as follows:
|
Interest accruing at the rate of 7% per annum, payable quarterly; |
|
Principal payments due on the third anniversary of issuance of debentures of the series and then semi-annually over the remaining four years until maturity; |
|
Prepayable at our option and without any prepayment penalty or premium after the third anniversary of issuance of debentures of the series; |
|
Maturing on the last day of the seventh year of the term of the series of debenture; |
|
Subordinated in right of payment to all existing and future senior debt; and |
|
Unsecured with no sinking fund requirement. |
The following table lists the aggregate principal amount of debentures purchased by certain of our directors, executive officers, and beneficial holders of more than 5% of our voting securities, and their respective affiliates and the amount of interest paid from January 1, 2011, through December 31, 2012. No payments of principal have been made with respect to any such debentures.
Name |
Aggregate Principal
Amount Purchased |
Interest Paid | ||||||
M. Brian Aynesworth |
$ | 350,000 | (1) | $ | 24,500 | |||
Torry Berntsen |
185,000 | (2) | 10,500 |
(1) | Includes $100,000 held by Mr. Aynesworths SEP account. |
(2) | Includes $155,000 owned jointly with Mr. Berntsens spouse and $30,000 owned jointly with Mr. Berntsens mother. |
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Other Transactions
IBG Adriatica. In December 2011, our non-bank subsidiary, IBG Adriatica sold for an aggregate purchase price of $1.5 million approximately 16,000 square feet of undeveloped real property, an associated interest in the common areas and an option to acquire an additional 32,000 square feet of real property in the Adriatica Development to Himalayan Ventures, L.P. In 2012, IBG Adriatica sold to Himalayan Ventures approximately five acres of undeveloped land in the Adriatica development and an associated interest in the common areas for an aggregate purchase price of approximately $3.5 million. IBG Adriatica used the net proceeds of these transactions to reduce the principal balance of the Adriatica property acquisition indebtedness.
Himalayan Ventures is an investment partnership comprised of principals of the Company, including Vincent Viola, David R. Brooks, Torry Berntsen, Douglas A. Cifu and Daniel W. Brooks. The purchase prices paid equaled the appraised value of the property sold in each transaction. An independent committee of the Board of Directors of the Company approved the terms of the sale prior to IBG Adriatica entering into these transactions. We believe that the foregoing transactions with Himalayan Ventures are consistent with terms that are at least as favorable to the Company as could have been arranged with unrelated third parties and are in compliance with applicable regulations established by bank regulatory agencies regarding related party transactions.
IBG Aircraft Acquisition, Inc., a subsidiary of the Bank, or IBG Aircraft, owns an airplane and leases the aircraft to the Bank. The Bank primarily uses the aircraft to facilitate the travel of Bank employees to and from the Banks thirty locations across North Texas and Central Texas. The Bank has an arrangement with Noel-Levitz LLC regarding the use of the airplane. Noel-Levitz is a higher education consulting firm headquartered in Colorado that, until December 31, 2012, was controlled by Vincent Viola and David R. Brooks, our majority shareholder and our Chairman of the Board and Chief Executive Officer, respectively. Mr. David Brooks continues to serve on the board of managers of Noel-Levitz. As part of the arrangement between the Bank and Noel-Levitz, David R. Brooks uses the airplane for corporate travel related to the business of Noel-Levitz. Noel-Levitz reimburses the Bank for the costs of operation of the airplane (computed on an hourly basis and includes fuel, maintenance reserves and other operating costs) as established by the Banks aviation committee, a committee of the Banks board of directors comprised of David R. Brooks, Torry Berntsen, William E. Fair and David Wood. We believe the terms of this arrangement are at least as favorable to the Bank as could have been arranged with an unrelated third party and is in compliance with third party regulations established by bank regulatory agencies.
The Bank leases its Woodway Branch in Waco from Waco Fairbank Realty, Ltd., of which William E. Fair, one of our directors, is a limited partner. The Bank pays rent of $26.43 per square foot for this 4,787 square foot facility, or $126,497 annually. Additionally, in March 2011, Independent Bank sold a 2,000 square foot office building to Mr. Fairs IRA. Independent Bank had previously foreclosed on the building and was holding it as ORE. The purchase price was $200,000. Independent Bank had marketed the property with two separate real estate agents that produced offers from unrelated parties for less than $200,000. Mr. Fairs IRA also paid the closing costs. As part of the transaction, Independent Bank loaned Mr. Fairs IRA $150,000 at a fixed interest rate of 5.50%. Principal and interest is payable monthly on the basis of 15 years with a balloon payment due at maturity in May 2016. In December 2011, the loan was modified to lower the interest rate to 4.75% and to extend the maturity date to December 2016. We believe that these arrangements are at least as favorable to the Bank as could have been arranged with unrelated third parties and are in compliance with third party regulations for transactions with directors and their affiliates established by bank regulatory agencies.
Shareholder Agreements. We are party to an amended and restated shareholder agreement, dated as of December 31, 2008, as amended, with our existing shareholders. Under this agreement, our shareholders are subject to restrictions relating to their transfer of shares of our common stock. This agreement also requires us to make distributions to our shareholders to enable them to pay their tax obligations resulting from our S-corporation status. The shareholder agreement will terminate prior to consummation of this offering.
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Tax Indemnification Agreements. Prior to or upon the completion of this offering, we will enter into certain tax indemnification agreements with each of our existing shareholders. Pursuant to these agreements, we will agree that upon filing any tax return (amended or otherwise), or in the event of any restatement of our taxable income, in each case for any period during which we were an S-corporation, we will make a payment to each shareholder on a pro rata basis in an amount sufficient so that the shareholder with the highest incremental estimated tax liability (calculated as if the shareholder would be taxable on its allocable share of our taxable income at the highest applicable federal, state and local tax rates and taking into account all amounts we previously distributed in respect of taxes for the relevant period) receives a payment equal to its incremental tax liability. We will also agree to indemnify the shareholders for any interest, penalties, losses, costs or expenses (including reasonable attorneys fees) arising out of any claim under the agreements.
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SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
Security Ownership
The following table and accompanying footnotes set forth information with respect to the beneficial ownership of our common stock as of January 31, 2013, by:
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each person who is known by us to own beneficially more than 5% of our common stock; |
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each member of our Board of Directors; |
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each of our named executive officers; and |
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all of our directors and named executive officers as a group (13 persons). |
We have determined beneficial ownership in accordance with the rules and regulations of the SEC. These rules generally provide that a person is the beneficial owner of securities if they have or share the power to vote or direct the voting thereof, or to dispose or direct the disposition thereof or have the right to acquire such powers within sixty days. Except as indicated by the footnotes below, we believe, based on the information furnished to us, that the persons and entities named in the table below have sole voting and investment power with respect to all shares of common stock that they beneficially own.
The applicable percentage ownership is based on shares of our common stock outstanding as of January 31, 2013, plus, on an individual basis, the right of that person to obtain common stock upon exercise of warrants to purchase shares of our common stock held by such person. Pursuant to the SECs rules, we did not deem these shares outstanding for the purpose of computing the percentage ownership of any other person.
For purposes of the table below, we have assumed that 8,269,707 shares of our common stock, other than the shares of our common stock to be issued in this offering, will be outstanding upon completion of this offering. Except as otherwise indicated, the address for each beneficial owner in the table below is c/o Independent Bank Group, Inc., 1600 Redbud Blvd., Suite 400, McKinney, Texas 75069.
Name |
Shares Beneficially Owned After
Offering |
|||||||||||
Shares Beneficially Owned
as of January 31, 2013 |
Number of
Shares (1) |
Percentage,
assuming no exercise of underwriters option to purchase additional shares (2) |
Percentage,
assuming full exercise of underwriters option to purchase additional shares (2) |
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Number of
Shares (1) |
Percentage (2) | |||||||||||
Executive Officers and Directors: |
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David R. Brooks |
1,045,776 | (3) | 12.6% | |||||||||
Torry Berntsen |
21,600 | * | ||||||||||
Daniel W. Brooks |
205,136 | (4) | 2.5 | |||||||||
Brian E. Hobart |
197,760 | (5) | 2.4 | |||||||||
Michelle S. Hickox |
0 | * | ||||||||||
Jan C. Webb |
46,400 | (6) | * | |||||||||
M. Brian Aynesworth |
387,162 | (7) | 4.7 | |||||||||
Douglas A. Cifu |
123,376 | (8) | 1.5 | |||||||||
William E. Fair |
172,621 | (9) | 2.1 | |||||||||
Craig E. Holmes |
0 | * | ||||||||||
Jack M. Radke |
111,254 | (10) | 1.3 | |||||||||
G. Stacy Smith |
17,770 | * | ||||||||||
Michael T. Viola |
0 | * | ||||||||||
All executive officers and directors as a group (13 persons) |
2,328,854 | 28.2 | ||||||||||
5% Security Holders: |
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Vincent J. Viola |
4,727,203 | (11) | 57.0% |
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* | Represents less than 1%. |
(1) | Beneficial ownership does not include: (i) any shares of common stock that may be purchased in this offering by the person listed; or (ii) with respect to officers restricted shares rights granted pursuant to our 2012 Stock Grant Plan which have not vested. Gives effect to the 3.2-for-one stock split that occurred on February 22, 2013. |
(2) | Ownership percentages reflect the rights ownership percentage assuming that such person, but no other person, exercises all warrants to acquire shares of our common stock held by such person that are currently exercisable. The ownership percentage of all executive officers and directors, as a group, assumes that all 13 persons, but no other persons, exercise all warrants to acquire shares of our common stock held by such persons that are currently exercisable. |
(3) | Of these shares, 1,009,706 are held of record by David R. Brooks and 12,800 shares are held of record by trusts for his children of which he and his wife are trustees. Mr. Brooks holds warrants to purchase 23,270 shares, which are included in his total shares, and 962,093 of Mr. Brooks shares are pledged as security for bank loans. |
(4) | Includes warrants to purchase 4,656 shares and 99,200 shares pledged as security for bank loans. |
(5) | Includes warrants to purchase 4,218 shares and 74,694 shares pledged as security for bank loans. |
(6) | Includes warrants to purchase 1,309 shares and 12,800 shares pledged as security for bank loans. |
(7) | Includes warrants to purchase 5,818 shares. |
(8) | Includes 28,832 shares owned of record by Mr. Cifu and 94,544 shares to be beneficially owned indirectly by Mr. Cifu through his proposed ownership interest in VV-IB, LLC. It is anticipated that, at the time of the consummation of this offering, VV-IB, LLC will be formed to own the 4,727,203 shares of our common stock currently owned by Vincent Viola individually. VV-IB, LLC would be beneficially owned by Mr. Cifu (2%) and Vincent J. Viola (98%). Mr. Viola would be the sole managing member of VV-IB, LLC and would have sole dispositive and voting power with respect to the shares of common stock of the Company to be owned by VV-IB, LLC. Mr. Cifu intends to disclaim beneficial ownership of the shares to be held by VV-IB, LLC. |
(9) | Includes warrants to purchase 5,818 shares and 54,858 shares pledged as security for bank loans. |
(10) | Of these shares, 109,507 are held of record by a family trust of which Jack Radke is trustee. Mr. Radke holds warrants to purchase 1,747 shares, which are included in his total shares, and 106,621 of Mr. Radkes shares are pledged as security for bank loans. |
(11) | It is anticipated that, at the time of the consummation of this offering, all of Mr. Violas shares would be owned by VV-IB, LLC. Mr. Viola would be the sole managing member of VV-IB, LLC and would have full voting and dispositional control over all of these shares. Includes warrants to purchase 93,091 shares. |
There are no arrangements currently known to us, the operation of which may at a subsequent date result in a change of control of the Company.
Shareholder Agreements
All of our shareholders are subject to a drag along and tag along rights agreement dated effective October 20, 2010, which imposes certain rights and obligations in the event that the holders of more than 50% of our common stock elect to sell their shares. The Company is not a party to this agreement. This rights agreement will terminate prior to consummation of this offering.
Vincent Viola, our majority shareholder, and David Brooks, our Chairman and CEO, have entered into a stock disposition agreement dated December 1, 2004, which imposes certain rights and obligations in the event that either of Messrs. Viola or Brooks decides to sell his shares of our common stock or in the event either of them die, become divorced or become subject to bankruptcy proceedings. The Company is not a party to this agreement. This stock disposition agreement will terminate prior to consummation of this offering.
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DESCRIPTION OF OUR CAPITAL STOCK
General
The following discussion summarizes some of the important rights of our shareholders upon completion of the offering. This discussion does not purport to be a complete description of these rights and may not contain all of the information regarding our common stock that is important to you. These rights can be determined in full only by reference to federal and state banking laws and regulations, the Texas Business Organizations Code and our certificate of formation and bylaws.
We are incorporated in the State of Texas. The rights of our shareholders are generally covered by Texas law and our certificate of formation and bylaws (each as amended and restated and in effect as of the completion of the offering). The terms of our capital stock are therefore subject to Texas law, including the Texas Business Organizations Code, and the common and constitutional law of Texas. Our certificate of formation and bylaws will be filed with the SEC as Exhibit 3.1 and Exhibit 3.2 to the registration statement on Form S-1 of which this prospectus is a part, and we encourage you to read those documents.
Our authorized capital stock consists of 100,000,000 shares of common stock, par value $0.01 per share, and 10,000,000 shares of preferred stock, par value $0.01 per share. As of January 31, 2013, after giving effect to the 3.2-to-one stock split, we had 8,269,707 outstanding shares of our common stock and no shares of our preferred stock were outstanding. All of our shares outstanding at that date were fully paid and nonassessable. As of January 31, 2013, we had 148 holders of record of common stock and less than 100 shareholders when combined by family in accordance with S corporation rules.
Our Common Stock
Voting Rights. Subject to any special voting rights that may be given to any series of preferred stock that we may issue in the future, holders of our common stock are entitled to one vote per share in the election of directors and on all other matters submitted to a vote at a meeting of shareholders. No shareholder has the right of cumulative voting with respect to the election of directors.
With respect to any matter other than the election of directors or a matter for which the affirmative vote of the holders of a specified portion of the shares entitled to vote is required by Texas law or our certificate of formation, the act of the shareholders will be the affirmative vote of the holders of a majority of the shares entitled to vote on, and voted for or against, the matter at a meeting of shareholders at which a quorum is present. For purposes of such a vote, however, all abstentions and broker nonvotes are not counted as voted either for or against such matter.
In elections of directors in which the number of nominees for election as director does not exceed the number of directors to be elected (generally referred to as an uncontested election), the directors will be elected by a majority of the votes cast by the holders of shares entitled to vote in the election of directors at a meeting of shareholders at which a quorum is present. If the number of nominees for election exceeds the number of directors to be elected at a meeting of shareholders (generally referred to as an contested election), directors will be elected by a plurality of the votes cast. For purposes of determining whether a director is elected in an uncontested election, a majority of the votes cast means that the number of votes cast for a director must exceed the number of votes cast against that director, and abstentions and broker nonvotes shall not be counted as votes cast either for or against any nominee for director. For purposes of determining whether a director is elected in a contested election, the nominees equal in number to the number of directors to be elected who receive the highest number of votes among all nominees will be elected as directors.
Dividend Rights. Holders of our common stock are entitled to dividends when, as and if declared by our board of directors out of funds legally available therefor. See Dividend Policy above.
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Liquidation Rights. In the event of our liquidation, the holders of our common stock will be entitled to share ratably in any assets remaining after payment of all debts and other liabilities.
Other. Our common stock has no preemptive or conversion rights and is not entitled to the benefits of any redemption or sinking fund provision.
Preferred Stock
Upon authorization of our board of directors, we may issue shares of one or more series of our preferred stock from time to time. Our board of directors may, without any action by holders of common stock or, except as may be otherwise provided in the terms of any series of preferred stock of which there are shares outstanding, holders of preferred stock adopt resolutions to designate and establish a new series of preferred stock. Upon establishing such a series of preferred stock, the board will determine the number of shares of preferred stock of that series that may be issued and the rights and preferences of that series of preferred stock. Our board of directors has not designated or established any series of preferred stock. The rights of any series of preferred stock may include, among others:
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general or special voting rights; |
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preferential liquidation or preemptive rights; |
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preferential cumulative or noncumulative dividend rights; |
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redemption or put rights; and |
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conversion or exchange rights. |
We may issue shares of, or rights to purchase shares of, one or more series of our preferred stock that have been designated from time to time, the terms of which might:
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adversely affect voting or other rights evidenced by, or amounts otherwise payable with respect to, the common stock or other series of preferred stock; |
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discourage an unsolicited proposal to acquire us; or |
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facilitate a particular business combination involving us. |
Any of these actions could have an anti-takeover effect and discourage a transaction that some or a majority of our shareholders might believe to be in their best interests or in which our shareholders might receive a premium for their stock over our then market price.
Business Combinations under Texas Law
A number of provisions of Texas law, our certificate of formation and bylaws could have an anti-takeover effect and make more difficult the acquisition of the Company by means of a tender offer, a proxy contest or otherwise and the removal of incumbent directors. These provisions are intended to discourage coercive takeover practices and inadequate takeover bids and to encourage persons seeking to acquire control of the Company to negotiate first with our board of directors.
We are subject to the provisions of Title 2, Chapter 21, Subchapter M of the Texas Business Organizations Code, or the Texas Business Combination Law, which provides that a Texas corporation may not engage in specified types of business combinations, including mergers, consolidations and asset sales, with a person, or an affiliate or associate of that person, who is an affiliated shareholder. For purposes of this law, an
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affiliated shareholder is generally defined as the holder of 20% or more of the corporations voting shares, for a period of three years from the date that person became an affiliated shareholder. The laws prohibitions do not apply if:
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the business combination or the acquisition of shares by the affiliated shareholder was approved by the board of directors of the corporation before the affiliated shareholder became an affiliated shareholder; or |
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the business combination was approved by the affirmative vote of the holders of at least two-thirds of the outstanding voting shares of the corporation not beneficially owned by the affiliated shareholder, at a meeting of shareholders called for that purpose, not less than six months after the affiliated shareholder became an affiliated shareholder. |
We expect to have more than 100 shareholders upon completion of the offering contemplated by this prospectus. At such time as we have more than 100 shareholders, we will then be considered an issuing public corporation for purposes of this law. The Texas Business Combination Law does not apply to the following:
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the business combination of an issuing public corporation: where the corporations original certificate of formation or bylaws contain a provision expressly electing not to be governed by the Texas Business Combination Law; or that adopts an amendment to its certificate of formation or bylaws, by the affirmative vote of the holders, other than affiliated shareholders, of at least two-thirds of the outstanding voting shares of the corporation, expressly electing not to be governed by the Texas Business Combination Law and so long as the amendment does not take effect for 18 months following the date of the vote and does not apply to a business combination with an affiliated shareholder who became affiliated on or before the effective date of the amendment; |
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a business combination of an issuing public corporation with an affiliated shareholder that became an affiliated shareholder inadvertently, if the affiliated shareholder divests itself, as soon as possible, of enough shares to no longer be an affiliated shareholder and would not at any time within the three-year period preceding the announcement of the business combination have been an affiliated shareholder but for the inadvertent acquisition; |
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a business combination with an affiliated shareholder who became an affiliated shareholder through a transfer of shares by will or intestacy and continuously was an affiliated shareholder until the announcement date of the business combination; and |
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a business combination of a corporation with its wholly owned Texas subsidiary if the subsidiary is not an affiliate or associate of the affiliated shareholder other than by reason of the affiliated shareholders beneficial ownership of voting shares of the corporation. |
Neither our certificate of formation nor our bylaws contain any provision expressly providing that we will not be subject to the Texas Business Combination Law. The Texas Business Combination Law may have the effect of inhibiting a nonnegotiated merger or other business combination involving our company, even if that event would be beneficial to our shareholders.
Mr. Vincent Viola, our majority shareholder, will be an affiliated shareholder of the Company following the consummation of the offering contemplated by this prospectus.
Action by Consent
Under Texas law, no action required or permitted to be taken at an annual or special meeting of shareholders may be taken by written consent in lieu of a meeting of shareholders without the unanimous written consent of all shareholders entitled to vote on the action unless the certificate of formation specifically allows action to be taken by a written consent of the shareholders holding the minimum number of shares necessary to
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take the action that is subject to that consent at a meeting of shareholders, even though such consent is not signed by all of the corporations shareholders. We expect that our certificate of formation will be amended prior to consummation of this offering to prohibit shareholder action by written consent.
Certain Certificate of Formation and Bylaw Provisions Potentially Having an Anti-takeover Effect
Our certificate of formation and bylaws contain certain provisions that could have an anti-takeover effect and thus discourage potential takeover attempts and make it more difficult for our shareholders to change management or receive a premium for their shares. These provisions include:
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authorization for our board of directors to issue shares of one or more series of preferred stock without shareholder approval; |
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the establishment of a classified board of directors, with directors of each class serving a three-year term; |
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a requirement that directors only be removed from office for cause and only upon a majority shareholder vote; |
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a provision that vacancies on our board of directors, including newly created directorships, may be filled only by a majority vote of directors then in office; |
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a prohibition of shareholder action by written consent, requiring all actions to be taken at a meeting of the shareholders; |
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the requirement that shareholders representing two-thirds of the outstanding shares of common stock approve all amendments to our certificate of formation or bylaws and approve mergers and similar transactions; |
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the requirement that any shareholders that wish to bring business before our annual meeting of shareholders or nominate candidates for election as directors at our annual meeting of shareholders must provide timely notice of their intent in writing; |
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the prohibition of cumulative voting in the election of directors; and |
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a limitation on the ability of shareholders to call special meetings to those shareholders or groups of shareholders owning at least 20% of our outstanding shares of common stock. |
Limitation of Liability and Indemnification of Officers and Directors
Our certificate of formation provides that our directors are not liable to the company or its shareholders for monetary damages for an act or omission in their capacity as a director. A director may, however, be found liable for:
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any breach of the directors duty of loyalty to the Company or its shareholders; |
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acts or omissions not in good faith that constitute a breach of the directors duty to the Company; |
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acts or omissions not in good faith that involve intentional misconduct or a knowing violation of law; |
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any transaction from which the director receives an improper benefit, whether or not the benefit resulted from an action taken with the scope of the directors duties; |
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acts or omissions for which the liability of the director is expressly provided by an applicable statute; and |
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acts related to an unlawful stock repurchase or payment of a dividend. |
Our certificate of formation also provides that we will indemnify our directors and officers, and may indemnify our employees and agents, to the fullest extent permitted by applicable Texas law from any expenses, liabilities or other matters.
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Indemnification Agreements
In connection with the consummation of this offering, we plan to enter into indemnification agreements with each of our executive officers and directors. Under these agreements, we would agree to indemnify any director or executive officer who acts on behalf of the Company and is made or threatened to be made a party to any action or proceeding for expenses, judgments, fines and amounts paid in settlement that are actually and reasonably incurred in connection with the action or proceeding. The indemnity provisions would apply whether the action was instituted by a third party or by us. Generally, the principal limitation on our obligation to indemnify the director or executive officer is if it is determined by a court of law, not subject to further appeal, that indemnification is prohibited by applicable law, applicable banking regulation or the provisions of the indemnification agreement.
Transfer Agent and Registrar
The transfer agent and registrar for our common stock is Wells Fargo Bank, National Association, at 1110 Centre Point Curve, Suite 101, Mendota Heights, Minnesota 55120-4101.
Listing
We have applied to list our common stock on the NASDAQ Global Market under the symbol IBTX.
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SHARES ELIGIBLE FOR FUTURE SALE
Prior to this offering, there has been no public market for our common stock. The sale of a substantial amount of our common stock in the public market after this offering, or the perception that such sales may occur, could adversely affect the prevailing market price of our common stock. Furthermore, because some of our shares will not be available for sale shortly after this offering due to the contractual and legal restrictions on resale described below, the sale of a substantial amount of common stock in the public market after these restrictions lapse could adversely affect the prevailing market price of our common stock and our ability to raise equity capital in the future.
Sales of Restricted Securities
Upon the completion of this offering, we will have shares of common stock outstanding (assuming no exercise of the underwriters option to purchase additional shares), which includes the million shares of common stock sold by us in this offering. For information regarding this effect of changes in the initial public offering price assumed in this prospectus on the total number of shares to be issued and outstanding after this offering, see footnote 1 under PROSPECTUS SUMMARY The Offering.
Of the shares to be outstanding after the closing of this offering, the shares sold in this offering will be freely tradable without restriction under the Securities Act, except that any shares purchased in this offering by our affiliates, as that term is defined in Rule 144 under the Securities Act, generally may be sold in the public market only in compliance with Rule 144. The remaining shares of our common stock are restricted shares under Rule 144 and therefore generally may be sold in the public market only in compliance with Rule 144. In addition, all of these restricted securities will be subject to the lock-up agreements described below.
Rule 144
In general a person who has beneficially owned restricted shares of our common stock for at least six months would be entitled to sell their securities provided that (i) such person is not deemed to have been one of our affiliates at the time of, or at any time during the ninety days preceding, a sale and (ii) we have been subject to the Exchange Act periodic reporting requirements for at least 90 days before the sale. Persons who have beneficially owned restricted shares of our common stock for at least six months but who are our affiliates at the time of, or any time during the 90 days preceding, a sale, would be subject to additional restrictions, by which such person would be entitled to sell within any three-month period only a number of securities that does not exceed the greater of the following:
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1% of the number of shares of our common stock then outstanding, which will equal approximately shares immediately after this offering assuming underwriters do not exercise in full their option to purchase additional shares; or |
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the average weekly trading volume of our common stock on the NASDAQ Global Market during the four calendar weeks preceding the filing a notice on Form 144 with respect to the sale; |
provided, in each case, that we have been subject to the Exchange Act periodic reporting requirements for at least 90 days before the sale. Such sales both by affiliates and by nonaffiliates must also comply with the manner of sale, current public information and notice provisions of Rule 144.
Rule 701
We have entered into agreements with certain of our executive officers and employees that obligate us to issue restricted stock pursuant to our 2013 Equity Incentive Plan upon the consummation of our initial public offering in exchange for the provision of services. The agreement to issue these restricted shares was completed
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without registration under the Securities Act in reliance upon the exemption provided by Rule 701 promulgated thereunder. Subject to any lock-up and forfeiture restrictions described below and elsewhere in this prospectus, these shares will be eligible for sale ninety days after the effective date of the registration statement in reliance on Rule 144 without having to comply with the holding period requirement of Rule 144 and, in the case of nonaffiliates, without having to comply with the public information, volume limitation or notice filing provisions of Rule 144.
Stock Issued Under Our 2013 Equity Incentive Plan
We intend to file a registration statement on Form S-8 under the Securities Act to register up to 800,000 shares of our common stock, which is equivalent to approximately 7.0% of the number of shares of common stock outstanding immediately after the completion of this offering, issuable with respect to option awards, restricted stock awards or other types of awards to be granted, or otherwise, under our 2013 Equity Incentive Plan. Immediately after this offering, there will be 112,320 shares of restricted stock issued and outstanding under the 2013 Equity Incentive Plan. The registration statement on Form S-8 is expected to be filed following the effective date of the registration statement of which this prospectus is a part and will be effective upon filing. Accordingly, shares registered under such registration statement will be available for sale in the open market following the effective date, unless such shares are subject to forfeiture restrictions with us, Rule 144 restrictions applicable to our affiliates or the lock-up restrictions described below and elsewhere in this prospectus.
Lock-Up Arrangements
In connection with this offering, we, our directors and executive officers, certain of our shareholders and participants in the directed share program have each agreed to enter into lock-up agreements that restrict the sale of our common stock for a period of 180 days after the date of this prospectus. Sandler ONeill & Partners, L.P., in its sole discretion, may release any of the shares of our common stock subject to these lock-up agreements at any time without notice. See UNDERWRITING.
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We are offering the shares of our common stock described in this prospectus in an underwritten offering in which we and Sandler ONeill & Partners, L.P., as representative of the underwriters for the offering, will enter into an underwriting agreement with respect to the common stock being offered. Subject to the terms and conditions contained in the underwriting agreement, the underwriters named below have agreed, severally and not jointly, to purchase the respective number of shares of our common stock set forth opposite their respective names below:
Name |
Numbers of Shares | |
Sandler ONeill & Partners, L.P. |
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Evercore Group L.L.C. |
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Keefe, Bruyette & Woods, Inc. |
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Total |
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The underwriting agreement provides that the underwriters obligation to purchase shares of our common stock depends on the satisfaction of the conditions contained in the underwriting agreement, including:
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the representations and warranties made by us are true and agreements have been performed; |
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there is no material adverse change in their determination in the financial markets or in our business; and |
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we deliver customary closing documents. |
Subject to these conditions, the underwriters are committed to purchase and pay for all of the shares of our common stock offered by this prospectus, if any such shares are purchased. However, the underwriters are not obligated to take or pay for the shares of our common stock covered by the underwriters over-allotment option described below, unless and until that option is exercised. The underwriting agreement also provides that if an underwriter defaults, the purchase commitments of nondefaulting underwriters may be increased or the offering may be terminated.
Over-Allotment Option
We have granted the underwriters an option, exercisable no later than 30 days after the date of the underwriting agreement, to purchase up to an aggregate of additional shares of common stock at the public offering price, less the underwriting discounts and commissions set forth on the cover page of this prospectus. We will be obligated to sell these shares of common stock to the underwriters to the extent the over-allotment option is exercised.
Commissions and Expenses
The underwriters propose to offer our common stock directly to the public at the offering price set forth on the cover page of this prospectus and to dealers at the public offering price less a concession not in excess of $ per share. The underwriters may allow, and the dealers may re-allow, a concession not in excess of $ per share on sales to other brokers and dealers. After the public offering of our common stock, the underwriters may change the offering price, concessions and other selling terms. The underwriters reserve the right to reject an order for the purchase of shares, in whole or in part.
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The following table shows the per share and total underwriting discounts and commissions that we will pay to the underwriters and the proceeds we will receive before expenses. These amounts are shown assuming both no exercise and full exercise of the underwriters over-allotment option.
Per Share |
Total
without
Over-Allotment Exercise |
Total with
Over-Allotment Exercise |
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Public offering price |
$ | $ | $ | |||||||||
Underwriting discounts and commissions |
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Proceeds to us (before expenses) |
We will pay reduced underwriting discounts and commissions in respect of shares sold in the directed share program. The table assumes that none of the shares reserved for sale in the directed share program are sold in the directed share program. If all of the shares reserved for sale in the directed share program are sold in the directed share program, the total underwriting discounts and commissions would be $ and the total proceeds to us, before expenses, would be $ .
In addition to the underwriting discount, we will reimburse the underwriters for their reasonable out-of-pocket expenses up to $400,000 incurred in connection with their engagement as underwriters, regardless of whether this offering is consummated, including, without limitation, legal fees and expenses, marketing, syndication and travel expenses. We estimate that the total expenses of this offering, exclusive of the underwriting discounts and commissions, will be approximately $ million, and are payable by us.
Offering Price Determination
Prior to this offering, there has been no public market for our common stock. The initial public offering price will be negotiated between the representative and us. In determining the initial public offering price of our common stock, the representative will consider:
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the history and prospects for the industry in which we compete; |
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our financial information; |
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our earning prospects; |
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our book value; |
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the prevailing securities markets at the time of this offering; and |
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the recent market prices of and the demand for publicly traded stock of comparable companies. |
Indemnification
We have agreed to indemnify the underwriters, and persons who control the underwriters, against certain liabilities, including liabilities under the Securities Act, and to contribute to payments that the underwriters may be required to make in respect of these liabilities.
Lock-Up Agreement
We, our directors and executive officers, certain of our shareholders and participants in the directed share program have entered into lock-up agreements with the underwriters. Under these agreements, for a period of 180 days after the date of the underwriting agreement, we and each of these persons may not, without the prior written approval of the underwriters, subject to limited exceptions:
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offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant for the sale of, or otherwise dispose of or transfer any of our common stock or any securities convertible into or exchangeable or exercisable for our |
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common stock, whether now owned or hereafter acquired or with respect to which such person has or hereafter acquires the power of disposition, or file any registration statement under the Securities Act, with respect to any of the foregoing, or |
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enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of our common stock, whether any such swap or transaction is to be settled by delivery of our common stock or other securities, in cash or otherwise. |
Directed Share Program
The underwriters have reserved for sale at the initial public offering price up to 5.0% of the common stock being offered by this prospectus for sale to our employees, executive officers, directors, business associates and related persons who have expressed an interest in purchasing our common stock in the offering. The number of shares available for sale to the general public in the offering will be reduced to the extent these persons purchase the reserved shares. Any reserved shares not so purchased will be offered by the underwriters to the general public on the same terms as the other shares. Any shares sold in the directed share program to directors and executive officers will be subject to the 180-day lock-up agreements described above.
Listing on the NASDAQ Global Market
We have applied to list our common stock on the NASDAQ Global Market under the symbol IBTX.
Stabilization
In connection with this offering, the underwriters may, but are not obligated to, engage in stabilizing transactions, over-allotment transactions, syndicate covering transactions and penalty bids.
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Stabilizing transactions permit bids to purchase shares of common stock so long as the stabilizing bids do not exceed a specified maximum, and are engaged in for the purpose of preventing or mitigating a decline in the market price of the common stock while the offering is in progress. |
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Over-allotment transactions involve sales by the underwriters of shares of common stock in excess of the number of shares the underwriters are obligated to purchase. This creates a syndicate short position that may be either a covered short position or a naked short position. In a covered short position, the number of shares of common stock over-allotted by the underwriters is not greater than the number of shares that they may purchase in the over-allotment option. In a naked short position, the number of shares involved is greater than the number of shares in the over-allotment option. The underwriters may close out any short position by exercising their over-allotment option and/or purchasing shares in the open market. |
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Syndicate covering transactions involve purchases of common stock in the open market after the distribution has been completed in order to cover syndicate short positions. In determining the source of shares to close out the short position, the underwriters will consider, among other things, the price of shares available for purchase in the open market as compared with the price at which they may purchase shares through exercise of the over-allotment option. If the underwriters sell more shares than could be covered by exercise of the over-allotment option and, therefore, have a naked short position, the position can be closed out only by buying shares in the open market. A naked short position is more likely to be created if the underwriters are concerned that after pricing there could be downward pressure on the price of the shares in the open market that could adversely affect investors who purchase in the offering. |
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Penalty bids permit the underwriters to reclaim a selling concession from a syndicate member when the common stock originally sold by that syndicate member is purchased in stabilizing or syndicate covering transactions to cover syndicate short positions. |
141
These stabilizing transactions, syndicate covering transactions and penalty bids may have the effect of raising or maintaining the market price of our common stock or preventing or mitigating a decline in the market price of our common stock. As a result, the price of our common stock in the open market may be higher than it would otherwise be in the absence of these transactions. Neither we nor the underwriters make any representation or prediction as to the effect that the transactions described above may have on the price of our common stock. These transactions may be effected on the NASDAQ Global Market, in the over-the-counter market or otherwise and, if commenced, may be discontinued at any time.
Electronic Distribution
This prospectus may be made available in electronic format on websites or through other online services maintained by one or more of the underwriters, or by their affiliates.
Other than this prospectus in electronic format, information on such websites and any information contained in any other website maintained by the underwriters or any of their affiliates is not part of this prospectus or registration statement of which the prospectus forms a part, has not been approved or endorsed by us or the underwriters in their capacities as underwriters and should not be relied on by investors.
Our Relationship with the Underwriters
Certain of the underwriters and/or their affiliates have engaged, and may in the future engage, in commercial and investment banking transactions with us in the ordinary course of their business. They have received, and expect to receive, customary compensation and expense reimbursement for these commercial and investment banking transactions.
142
The validity of the shares of common stock being offered by this prospectus will be passed upon for us by Andrews Kurth LLP, Dallas, Texas. Bracewell & Giuliani LLP, Houston, Texas, is acting as counsel for the underwriters in connection with this offering.
The consolidated financial statements appearing in this Prospectus and Registration Statement have been audited by McGladrey LLP, an independent registered public accounting firm, as stated in their report appearing elsewhere herein and are included in reliance upon such report and upon the authority of such firm as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the SEC a registration statement on Form S-1 under the Securities Act with respect to our common stock offered hereby. This prospectus, which constitutes part of the registration statement, does not contain all of the information set forth in the registration statement or the exhibits or schedules filed therewith. For further information about us and our common stock that we propose to sell in this offering, we refer you to the registration statement and the exhibits and schedules filed as a part of the registration statement. Statements contained in this prospectus as to the contents of any contract or any other document filed as an exhibit to the registration statement are not necessarily complete. If a contract or document has been filed as an exhibit to the registration statement, we refer you to the copy of the contract or document that has been filed as an exhibit to the registration statement.
Following the offering, we will become subject to the full informational requirements of the Exchange Act and will file periodic reports and other information with the SEC. We maintain an Internet site at www.independent-bank.com . Information on, or accessible through, our website is not part of this prospectus.
You may also read and copy any document we file with the SEC at the SECs Public Reference Room at 100 F Street, N.E., Washington, D.C. 20549. You can also obtain copies of the documents upon the payment of a duplicating fee to the SEC. Please call the SEC at 1-800-SEC-0330 for further information on the operation of the Public Reference Room. The SEC maintains an Internet site that contains reports, proxy and information statements, and other information regarding issuers that file electronically with the SEC through the SECs Electronic Data Gathering, Analysis and Retrieval (EDGAR) system. This system can be accessed at www.sec.gov .
143
INDEPENDENT BANK GROUP, INC. AND SUBSIDIARIES
***
All financial statement schedules have been omitted as the required information either is not applicable or is included in the financial statements or related notes.
Report of Independent Registered Public Accounting Firm
The Board of Directors
Independent Bank Group, Inc. and Subsidiaries
McKinney, Texas
We have audited the accompanying consolidated balance sheets of Independent Bank Group, Inc. and Subsidiaries (Company) as of December 31, 2012, 2011 and 2010, and the related consolidated statements of income, comprehensive income, changes in stockholders equity and cash flows for the years then ended. These financial statements are the responsibility of the Companys management. Our responsibility is to express an opinion on these financial statements based on our audits.
We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the financial position of Independent Bank Group, Inc. and Subsidiaries as of December 31, 2012, 2011 and 2010, and the results of their operations and their cash flows for the years then ended in conformity with U.S. generally accepted accounting principles.
/s/ McGladrey LLP
Dallas, Texas
February 27, 2013
F-1
Independent Bank Group, Inc. and Subsidiaries
Consolidated Balance Sheets
December 31, 2012, 2011 and 2010
(Dollars in thousands)
Pro Forma
December 31, |
December 31, | |||||||||||||||
2012 | 2012 | 2011 | 2010 | |||||||||||||
(Unaudited) | ||||||||||||||||
(Note 1) | ||||||||||||||||
Assets |
||||||||||||||||
Cash and due from banks |
$ | 30,920 | $ | 30,920 | $ | 32,579 | $ | 24,321 | ||||||||
Federal Reserve Excess Balance Account (EBA) |
71,370 | 71,370 | 24,075 | 62,025 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Cash and cash equivalents |
102,290 | 102,290 | 56,654 | 86,346 | ||||||||||||
Certificates of deposit held in other banks |
7,720 | 7,720 | | | ||||||||||||
Securities available for sale (amortized cost of $110,777, $110,777, $91,829 and $51,745, respectively) |
113,355 | 113,355 | 93,991 | 52,611 | ||||||||||||
Loans held for sale |
9,162 | 9,162 | 2,991 | 3,301 | ||||||||||||
Loans, net of allowance for loan losses of $11,478, $11,478, $9,060 and $8,403, respectively |
1,358,036 | 1,358,036 | 976,620 | 848,424 | ||||||||||||
Premises and equipment, net |
70,581 | 70,581 | 60,422 | 62,053 | ||||||||||||
Other real estate owned |
6,847 | 6,847 | 8,392 | 7,854 | ||||||||||||
Adriatica real estate |
9,727 | 9,727 | 16,065 | | ||||||||||||
Goodwill |
28,714 | 28,714 | 11,222 | 11,222 | ||||||||||||
Core deposit intangible, net |
3,251 | 3,251 | 2,664 | 3,231 | ||||||||||||
Federal Home Loan Bank (FHLB) of Dallas stock and other restricted stock |
8,165 | 8,165 | 5,147 | 4,017 | ||||||||||||
Bank-owned life insurance (BOLI) |
10,924 | 10,924 | 10,597 | 10,266 | ||||||||||||
Deferred tax asset |
111 | | | | ||||||||||||
Other assets |
11,288 | 11,288 | 9,612 | 8,891 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total assets |
$ | 1,740,171 | $ | 1,740,060 | $ | 1,254,377 | $ | 1,098,216 | ||||||||
|
|
|
|
|
|
|
|
|||||||||
Liabilities and Stockholders Equity |
||||||||||||||||
Deposits: |
||||||||||||||||
Noninterest-bearing |
$ | 259,664 | $ | 259,664 | $ | 168,849 | $ | 133,307 | ||||||||
Interest-bearing |
1,131,076 | 1,131,076 | 861,635 | 794,236 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total deposits |
1,390,740 | 1,390,740 | 1,030,484 | 927,543 | ||||||||||||
FHLB advances |
164,601 | 164,601 | 82,291 | 55,273 | ||||||||||||
Notes payable |
15,729 | 15,729 | 18,692 | 9,000 | ||||||||||||
Other borrowings |
12,252 | 12,252 | 10,992 | 8,051 | ||||||||||||
Other borrowings, related parties |
8,536 | 8,536 | 6,111 | 3,332 | ||||||||||||
Junior subordinated debentures |
18,147 | 18,147 | 14,538 | 14,538 | ||||||||||||
Dividends payable |
6,030 | | | | ||||||||||||
Other liabilities |
5,545 | 5,545 | 5,272 | 4,435 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total liabilities |
1,621,580 | 1,615,550 | 1,168,380 | 1,022,172 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Commitments and contingencies |
||||||||||||||||
Stockholders equity: |
||||||||||||||||
Common stock (8,278,354, 8,278,354, 6,852,309 and 6,834,344 shares outstanding, respectively) |
83 | 83 | 69 | 69 | ||||||||||||
Additional paid-in capital |
116,051 | 88,791 | 59,196 | 58,149 | ||||||||||||
Retained earnings |
111 | 33,290 | 24,594 | 16,984 | ||||||||||||
Treasury stock, at cost (8,647, 8,647, 2,016 and 2,016 shares, respectively) |
(232 | ) | (232 | ) | (24 | ) | (24 | ) | ||||||||
Accumulated other comprehensive income |
2,578 | 2,578 | 2,162 | 866 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total stockholders equity |
118,591 | 124,510 | 85,997 | 76,044 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total liabilities and stockholders equity |
$ | 1,740,171 | $ | 1,740,060 | $ | 1,254,377 | $ | 1,098,216 | ||||||||
|
|
|
|
|
|
|
|
See Notes to Consolidated Financial Statements.
F-2
Independent Bank Group, Inc. and Subsidiaries
Consolidated Statements of Income
Years Ended December 31, 2012, 2011 and 2010
(Dollars in thousands, except per share information)
Years Ended December 31, | ||||||||||||
2012 | 2011 | 2010 | ||||||||||
Interest income: |
||||||||||||
Interest and fees on loans |
$ | 69,494 | $ | 57,263 | $ | 49,614 | ||||||
Interest on taxable securities |
1,357 | 1,767 | 1,903 | |||||||||
Interest on nontaxable securities |
825 | 522 | 147 | |||||||||
Interest on federal funds sold and other |
214 | 87 | 70 | |||||||||
|
|
|
|
|
|
|||||||
Total interest income |
71,890 | 59,639 | 51,734 | |||||||||
|
|
|
|
|
|
|||||||
Interest expense: |
||||||||||||
Interest on deposits |
8,351 | 9,912 | 10,779 | |||||||||
Interest on FHLB advances |
2,383 | 1,477 | 1,425 | |||||||||
Interest on notes payable and other borrowings |
2,072 | 1,489 | 981 | |||||||||
Interest on junior subordinated debentures |
531 | 480 | 484 | |||||||||
|
|
|
|
|
|
|||||||
Total interest expense |
13,337 | 13,358 | 13,669 | |||||||||
|
|
|
|
|
|
|||||||
Net interest income |
58,553 | 46,281 | 38,065 | |||||||||
Provision for loan losses |
3,184 | 1,650 | 4,043 | |||||||||
|
|
|
|
|
|
|||||||
Net interest income after provision for loan losses |
55,369 | 44,631 | 34,022 | |||||||||
|
|
|
|
|
|
|||||||
Noninterest income: |
||||||||||||
Service charges on deposit accounts |
3,386 | 3,383 | 2,841 | |||||||||
Mortgage fee income |
4,116 | 2,654 | 1,741 | |||||||||
Bargain purchase gain on acquisitions of banks |
| | 6,692 | |||||||||
Gain on sale of branch |
38 | | | |||||||||
Gain on sale of other real estate |
1,135 | 918 | 136 | |||||||||
(Loss) on sale of securities available for sale |
(3 | ) | | | ||||||||
(Loss) gain on sale of premises and equipment |
(343 | ) | 21 | 1 | ||||||||
Increase in cash surrender value of BOLI |
327 | 330 | 303 | |||||||||
Other |
512 | 402 | 442 | |||||||||
|
|
|
|
|
|
|||||||
Total noninterest income |
9,168 | 7,708 | 12,156 | |||||||||
|
|
|
|
|
|
|||||||
Noninterest expense: |
||||||||||||
Salaries and employee benefits |
26,569 | 21,118 | 17,019 | |||||||||
Occupancy |
7,317 | 6,776 | 5,552 | |||||||||
Data processing |
1,198 | 850 | 708 | |||||||||
FDIC assessment |
800 | 1,238 | 1,042 | |||||||||
Advertising and public relations |
626 | 589 | 483 | |||||||||
Communications |
1,334 | 1,074 | 843 | |||||||||
Net other real estate owned expenses (including taxes) |
220 | 403 | 825 | |||||||||
Net expenses from operations of IBG Adriatica |
832 | 871 | | |||||||||
Impairment of other real estate |
94 | 184 | 805 | |||||||||
Amortization of core deposit intangibles |
656 | 567 | 431 | |||||||||
Professional fees |
1,104 | 971 | 750 | |||||||||
Acquisition expense, including legal |
1,401 | | 668 | |||||||||
Other |
5,009 | 3,998 | 3,936 | |||||||||
|
|
|
|
|
|
|||||||
Total noninterest expense |
47,160 | 38,639 | 33,062 | |||||||||
|
|
|
|
|
|
|||||||
Net income |
$ | 17,377 | $ | 13,700 | $ | 13,116 | ||||||
|
|
|
|
|
|
|||||||
Basic earnings per share |
$ | 2.23 | $ | 2.00 | $ | 1.95 | ||||||
|
|
|
|
|
|
|||||||
Diluted earnings per share |
$ | 2.23 | $ | 2.00 | $ | 1.95 | ||||||
|
|
|
|
|
|
|||||||
Pro Forma: (unaudited) |
||||||||||||
Income tax expense |
$ | 5,230 | $ | 4,343 | $ | 4,341 | ||||||
|
|
|
|
|
|
|||||||
Net income |
$ | 12,147 | $ | 9,357 | $ | 8,775 | ||||||
|
|
|
|
|
|
|||||||
Basic earnings per share |
$ | 1.56 | $ | 1.37 | $ | 1.31 | ||||||
|
|
|
|
|
|
|||||||
Diluted earnings per share |
$ | 1.56 | $ | 1.37 | $ | 1.31 | ||||||
|
|
|
|
|
|
See Notes to Consolidated Financial Statements
F-3
Independent Bank Group, Inc. and Subsidiaries
Consolidated Statements of Comprehensive Income
Years Ended December 31, 2012, 2011 and 2010
(Dollars in thousands)
Years Ended December 31, | ||||||||||||
2012 | 2011 | 2010 | ||||||||||
Other comprehensive income: |
||||||||||||
Net change in unrealized gains on available for sale securities |
$ | 413 | $ | 1,296 | $ | 786 | ||||||
Reclassification adjustment for loss on sale of securities available for sale |
3 | | | |||||||||
|
|
|
|
|
|
|||||||
Total other comprehensive income |
416 | 1,296 | 786 | |||||||||
Net income |
17,377 | 13,700 | 13,116 | |||||||||
|
|
|
|
|
|
|||||||
Comprehensive income |
$ | 17,793 | $ | 14,996 | $ | 13,902 | ||||||
|
|
|
|
|
|
See Notes to Consolidated Financial Statements.
F-4
Independent Bank Group, Inc. and Subsidiaries
Consolidated Statements of Changes in Stockholders Equity
Years Ended December 31, 2012, 2011 and 2010
(Dollars in thousands, except for par value and share information)
Common Stock
$.01 Par Value 100 million shares authorized |
Accumulated
Other Comprehensive Income |
|||||||||||||||||||||||||||
Shares | Amount |
Additional
Paid-in Capital |
Retained
Earnings |
Treasury
Stock |
Total | |||||||||||||||||||||||
Balance, December 31, 2009 |
6,629,976 | $ | 67 | $ | 54,243 | $ | 8,112 | $ | (23 | ) | $ | 80 | $ | 62,479 | ||||||||||||||
Net income |
| | | 13,116 | | | 13,116 | |||||||||||||||||||||
Unrealized gain on securities available for sale |
| | | | | 786 | 786 | |||||||||||||||||||||
Restricted stock granted |
11,680 | | | | | | | |||||||||||||||||||||
Stock issued for acquisition of bank |
192,688 | 2 | 3,309 | | | | 3,311 | |||||||||||||||||||||
Stock awards amortized |
| | 597 | | | | 597 | |||||||||||||||||||||
Treasury stock purchased (96 shares) |
| | | | (1 | ) | | (1 | ) | |||||||||||||||||||
Dividends ($.63 per share) |
| | | (4,244 | ) | | | (4,244 | ) | |||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||
Balance, December 31, 2010 |
6,834,344 | 69 | 58,149 | 16,984 | (24 | ) | 866 | 76,044 | ||||||||||||||||||||
Net income |
| | | 13,700 | | | 13,700 | |||||||||||||||||||||
Unrealized gain on securities available for sale |
| | | | | 1,296 | 1,296 | |||||||||||||||||||||
Stock warrants issued (150,544) |
| | 475 | | | | 475 | |||||||||||||||||||||
Restricted stock granted |
17,965 | | | | | | | |||||||||||||||||||||
Stock awards amortized |
| | 572 | | | | 572 | |||||||||||||||||||||
Dividends paid ($.89 per share) |
| | | (6,090 | ) | | | (6,090 | ) | |||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||
Balance, December 31, 2011 |
6,852,309 | 69 | 59,196 | 24,594 | (24 | ) | 2,162 | 85,997 | ||||||||||||||||||||
Net income |
| | | 17,377 | | | 17,377 | |||||||||||||||||||||
Unrealized gain on securities available for sale |
| | | | | 416 | 416 | |||||||||||||||||||||
Stock issued |
1,243,824 | 12 | 25,253 | | | | 25,265 | |||||||||||||||||||||
Stock issued for acquisition of bank |
182,221 | 2 | 3,699 | | | | 3,701 | |||||||||||||||||||||
Stock awards amortized |
| | 643 | | | | 643 | |||||||||||||||||||||
Treasury stock purchased (6,631 shares) |
| | | | (208 | ) | | (208 | ) | |||||||||||||||||||
Dividends paid ($1.12 per share) |
| | | (8,681 | ) | | | (8,681 | ) | |||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||
Balance, December 31, 2012 |
8,278,354 | $ | 83 | $ | 88,791 | $ | 33,290 | $ | (232 | ) | $ | 2,578 | $ | 124,510 | ||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
See Notes to Consolidated Financial Statements.
F-5
Independent Bank Group, Inc. and Subsidiaries
Consolidated Statements of Cash Flows
Years Ended December 31, 2012, 2011 and 2010
(Dollars in thousands)
Years Ended December 31, | ||||||||||||
2012 | 2011 | 2010 | ||||||||||
Cash flows from operating activities: |
||||||||||||
Net income |
$ | 17,377 | $ | 13,700 | $ | 13,116 | ||||||
Adjustments to reconcile net income to net cash provided by operating activities: |
||||||||||||
Depreciation expense |
3,524 | 3,302 | 2,868 | |||||||||
Amortization of core deposit intangibles |
656 | 567 | 431 | |||||||||
Accretion of discounts on securities, net |
(1 | ) | (84 | ) | (10 | ) | ||||||
Stock grants amortized |
643 | 572 | 597 | |||||||||
FHLB stock dividends |
(17 | ) | (12 | ) | (15 | ) | ||||||
Loss on sale of securities available for sale |
3 | | | |||||||||
Net loss (gain) on sale of premises and equipment |
343 | (21 | ) | (1 | ) | |||||||
Gain on sale of branch |
(38 | ) | | | ||||||||
Gain recognized on other real estate transactions |
(1,135 | ) | (918 | ) | (136 | ) | ||||||
Impairment of other real estate |
94 | 184 | 805 | |||||||||
Bargain purchase gain on acquisitions of banks |
| | (6,692 | ) | ||||||||
Provision for loan losses |
3,184 | 1,650 | 4,043 | |||||||||
Increase in cash surrender value of life insurance |
(327 | ) | (330 | ) | (303 | ) | ||||||
Loans originated for sale |
(177,063 | ) | (113,527 | ) | (60,545 | ) | ||||||
Proceeds from sale of loans |
170,892 | 113,837 | 57,391 | |||||||||
Net change in other assets |
95 | (18 | ) | 924 | ||||||||
Net change in other liabilities |
(421 | ) | 891 | (1,131 | ) | |||||||
|
|
|
|
|
|
|||||||
Net cash provided by operating activities |
17,809 | 19,793 | 11,342 | |||||||||
|
|
|
|
|
|
|||||||
Cash flows from investing activities: |
||||||||||||
Proceeds from maturities and paydowns of securities available for sale |
245,581 | 207,863 | 187,276 | |||||||||
Proceeds from sale of securities available for sale |
2,078 | | | |||||||||
Purchases of securities available for sale |
(256,295 | ) | (247,921 | ) | (186,914 | ) | ||||||
Proceeds from calls, maturities and paydowns of securities held to maturity |
| | 3,017 | |||||||||
Purchases of securities held to maturity |
| | (1,984 | ) | ||||||||
Proceeds from maturities of certificates held in other banks |
9,358 | | | |||||||||
Net (purchases) redemptions of FHLB stock |
(1,584 | ) | (1,118 | ) | 622 | |||||||
Net loans originated |
(202,371 | ) | (134,893 | ) | (75,999 | ) | ||||||
Additions to premises and equipment |
(14,063 | ) | (2,267 | ) | (3,177 | ) | ||||||
Proceeds from sale of premises and equipment |
5,095 | 617 | 192 | |||||||||
Proceeds from sale of other real estate owned |
8,880 | 5,727 | 10,628 | |||||||||
Capitalized additions to other real estate |
(592 | ) | (524 | ) | (118 | ) | ||||||
Premiums paid for bank owned life insurance |
| | (4,000 | ) | ||||||||
Cash paid for Adriatica note acquired |
| (4,062 | ) | | ||||||||
Cash received from acquired banks |
46,230 | | 37,819 | |||||||||
Cash paid for acquisition of banks |
(46,600 | ) | | (101 | ) | |||||||
Net cash transferred in branch sale |
(18,563 | ) | | | ||||||||
|
|
|
|
|
|
|||||||
Net cash used in investing activities |
(222,846 | ) | (176,578 | ) | (32,739 | ) | ||||||
|
|
|
|
|
|
|||||||
Cash flows from financing activities: |
||||||||||||
Net increase in demand deposits, NOW and savings accounts |
183,919 | 141,440 | 122,569 | |||||||||
Net decrease in time deposits |
(20,039 | ) | (38,499 | ) | (39,009 | ) | ||||||
Net change in FHLB advances |
69,810 | 27,018 | (27,589 | ) | ||||||||
Repayments of other borrowings |
(10,958 | ) | (4,859 | ) | (2,072 | ) | ||||||
Proceeds from other borrowings |
11,680 | 8,083 | | |||||||||
Proceeds from sale of common stock |
25,150 | | | |||||||||
Treasury stock purchased |
(208 | ) | | (1 | ) | |||||||
Dividends paid |
(8,681 | ) | (6,090 | ) | (4,244 | ) | ||||||
|
|
|
|
|
|
|||||||
Net cash provided by financing activities |
250,673 | 127,093 | 49,654 | |||||||||
|
|
|
|
|
|
|||||||
Net change in cash and cash equivalents |
45,636 | (29,692 | ) | 28,257 | ||||||||
Cash and cash equivalents at beginning of year |
56,654 | 86,346 | 58,089 | |||||||||
|
|
|
|
|
|
|||||||
Cash and cash equivalents at end of year |
$ | 102,290 | $ | 56,654 | $ | 86,346 | ||||||
|
|
|
|
|
|
See Notes to Consolidated Financial Statements.
F-6
Notes to Consolidated Financial Statements
(Dollars in thousands, except per share information)
Note 1. | Summary of Significant Accounting Policies |
Nature of operations: Independent Bank Group, Inc. (IBG) through its subsidiary, Independent Bank (Bank), provides a full range of banking services to individual and corporate customers in the North and Central Texas areas through its various branch locations in those areas. The Company is engaged in traditional community banking activities, which include commercial and retail lending, deposit gathering, investment and liquidity management activities. The Companys primary deposit products are demand deposits, money market accounts and certificates of deposit, and its primary lending products are commercial business and real estate, real estate mortgage and consumer loans.
Principles of consolidation: The accompanying consolidated financial statements include the accounts of IBG, its wholly-owned subsidiaries, the Bank and IBG Adriatica Holdings, Inc. (Adriatica) and the Banks wholly-owned subsidiaries, IBG Real Estate Holdings, Inc., IBG Aircraft Acquisition, Inc. and IBG Aviation Holdings, Inc. Adriatica was formed in 2011 to acquire a mixed use residential and retail real estate development in McKinney, Texas (see Note 21). IBG Aviation Holdings, Inc. was dissolved in 2012. All material intercompany transactions and balances have been eliminated in consolidation.
In addition, the Company wholly-owns IB Trust I (Trust I), IB Trust II (Trust II), IB Trust III (Trust III), IB Centex Trust I (Centex Trust I) and Community Group Statutory Trust I (CGI Trust I). The Trusts were formed to issue trust preferred securities and do not meet the criteria for consolidation (see Note 13).
The accounting and reporting policies of Independent Bank Group, Inc. and Subsidiaries (Company) conform to U.S. generally accepted accounting principles and to general practices within the banking industry. The following are descriptions of the more significant of those policies.
Accounting standards codification: The Financial Accounting Standards Boards (FASB) Accounting Standards Codification (ASC) is the officially recognized source of authoritative U.S. generally accepted accounting principles (GAAP) applicable to all public and non-public non-governmental entities. Rules and interpretive releases of the SEC under the authority of federal securities laws are also sources of authoritative GAAP for SEC registrants. All other accounting literature is considered non-authoritative. Citing particular content in the ASC involves specifying the unique numeric path to the content through the Topic, Subtopic, Section and Paragraph structure.
Use of estimates: The preparation of financial statements in conformity with U.S. generally accepted accounting principles requires management to make estimates and assumptions that affect certain reported amounts of assets and liabilities and disclosures of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenue and expenses during the reporting period. Accordingly, actual results could differ from those estimates. The material estimates included in the financial statements relate to the allowance for loan losses and valuation of assets and liabilities acquired in business combinations.
Cash and cash equivalents: For the purposes of reporting cash flows, cash and cash equivalents include cash on hand, amounts due from banks and federal funds sold. All highly liquid investments with an initial maturity of less than ninety days are considered to be cash equivalents. The Company maintains deposits with other financial institutions in amounts that exceed FDIC insurance coverage. The Companys management monitors the balance in these accounts and periodically assesses the financial condition of the other financial institutions. The Company has not experienced any losses in such accounts and believes it is not exposed to any significant credit risks on cash or cash equivalents. At December 31, 2011 and 2010, the Company had $25,183 and $16,603, deposit and clearing accounts at one unaffiliated commercial bank, respectively. Such amounts were greater than 20% of stockholders equity.
F-7
Independent Bank Group, Inc. and Subsidiaries
Notes to Consolidated Financial Statements
(Dollars in thousands, except per share information)
Cash and cash equivalents include interest-bearing funds of $71,612, $24,164 and $62,360 at December 31, 2012, 2011 and 2010, respectively.
Certificates of deposit: Certificates of deposit are FDIC insured deposits in other financial institutions that mature within one year and are carried at cost.
Securities: Securities classified as available for sale are those debt and equity securities that the Company intends to hold for an indefinite period of time, but not necessarily to maturity. Any decision to sell a security classified as available for sale would be based on various factors, including significant movements in interest rates, changes in the maturity mix of the Companys assets and liabilities, liquidity needs, regulatory capital considerations and other similar factors.
Securities available for sale are reported at fair value with unrealized gains or losses reported as a separate component of other comprehensive income. The amortization of premiums and accretion of discounts, computed by the interest method over their contractual lives, are recognized in interest income.
Realized gains or losses, determined on the basis of the cost of specific securities sold, are included in earnings on the trade date.
In estimating other than temporary impairment losses, management considers (1) the length of time and the extent to which the fair value has been less than cost, (2) the financial condition and near-term prospects of the issuer, and (3) the intent of the Company to retain its investment and whether it is more likely than not the Company will be required to sell its investment before its anticipated recovery in fair value. When the Company does not intend to sell the security, and it is more likely than not that it will not have to sell the security before recovery of its cost basis, it will recognize the credit component of an other than temporary impairment of a debt security in earnings and the remaining portion in other comprehensive income.
Loans held for sale: Mortgage loans originated and intended for sale in the secondary market are carried at the lower of aggregate cost or fair value, as determined by aggregate outstanding commitments from investors. Net unrealized losses, if any, are recognized through a valuation allowance by charges to income. Gains and losses on sales of loans are recognized in noninterest income at settlement dates and are determined by the difference between the sales proceeds and the carrying value of the loans.
Acquired loans: Acquired loans from the transactions accounted for as a business combination include both non-performing loans with evidence of credit deterioration since their origination date and performing loans. The Company is accounting for the non-performing loans acquired in accordance with Accounting Standards Codification (ASC) 310-30, Loans and Debt Securities Acquired with Deteriorated Credit Quality . At the date of the acquisition, the acquired loans were recorded at their fair value and there is no carryover of the sellers allowance for loan losses.
Purchased credit impaired loans are accounted for individually. The Company estimates the amount and timing of expected cash flows for each loan, and the expected cash flows in excess of amount paid is recorded as interest income over the remaining life of the loan (accretable yield). The excess of the loans contractual principal and interest over expected cash flows is not recorded (nonaccretable difference).
Over the life of the loan, expected cash flows continue to be estimated. If the present value of expected cash flows is less than the carrying amount, a loss is recorded. If the present value of expected cash flows is greater than the carrying amount, it is recognized as part of future interest income.
F-8
Independent Bank Group, Inc. and Subsidiaries
Notes to Consolidated Financial Statements
(Dollars in thousands, except per share information)
The performing loans are being accounted for under Accounting Standards Codification (ASC) 310-20, Nonrefundable Fees and Other Costs , with the related discount being adjusted for over the life of the loan and recognized as interest income.
Loans, net: Loans that management has the intent and ability to hold for the foreseeable future or until maturity or pay-off are reported at their outstanding principal balance adjusted for the allowance for loan losses. The Company originates mortgage loans that may subsequently be sold to an unaffiliated third party. The loans are not securitized and if sold, are sold without recourse.
Fees and costs associated with originating loans are recognized in the period they are incurred. The provisions of FASB ASC Topic 310, Receivables , generally provide that such fees and related costs be deferred and recognized over the life of the loan as an adjustment of yield. Management believes that not deferring such amounts and amortizing them over the life of the related loans does not materially affect the financial position or results of operations of the Company.
Allowance for loan losses: The allowance for loan losses is maintained at a level considered adequate by management to provide for probable loan losses. The allowance is increased by provisions charged to expense. Loans are charged against the allowance for loan losses when management believes that collectability of the principal is unlikely. Subsequent recoveries, if any, are credited to the allowance. The provision for loan losses is the amount, which, in the judgment of management, is necessary to establish the allowance for loan losses at a level that is adequate to absorb known and inherent risks in the loan portfolio.
The allowance consists of allocated and general components. The allocated component relates to loans that are individually classified as impaired, for which the carrying value of the loan exceeded the fair value of the collateral or the present value of expected future cash flows.
The general component covers loans which are not impaired and is based on the historical loan loss experience for the last three years, including adjustments to historical loss experience, maintained to cover uncertainties that affect the Banks estimate of probable losses for each loan type, and several other factors. These factors include changes in experience of lending staff, lending policies and procedures; changes in collection, charge-off and recovery practices; changes in the nature and volume of the loan portfolio; changes in the volume and severity of nonperforming loans; the existence and effect of any concentrations of credit and changes in the level of such concentrations; and changes in current, national and local economic and business conditions.
This evaluation does not include the effects of expected losses on individual loans or groups of loans that are related to future events or expected changes in economic conditions. While management uses the best information available to make its evaluation, future adjustments to the allowance may be necessary if there are significant changes in economic conditions. This evaluation is inherently subjective as it requires estimates that are susceptible to significant revision as more information becomes available. In addition, regulatory agencies, as an integral part of their examination process, periodically review the Banks allowance for loan losses, and may require the Bank to make additions to the allowance based on their judgment about information available to them at the time of their examinations.
Impaired loans: Impaired loans are those loans where it is probable that all amounts due according to contractual terms of the loan agreement will not be collected. Impaired loans are measured based on (1) the present value of expected future cash flows discounted at the loans effective interest rate; (2) the loans observable market price; or (3) the fair value of the collateral if the loan is collateral dependent. Substantially all
F-9
Independent Bank Group, Inc. and Subsidiaries
Notes to Consolidated Financial Statements
(Dollars in thousands, except per share information)
of the Companys impaired loans are measured at the fair value of the collateral. In limited cases the Company may use other methods to determine the level of impairment of a loan if such loan is not collateral dependent. The amount of impairment, if any, is included in the allowance for loan losses.
All commercial, real estate, agricultural loans and troubled debt restructurings are considered for individual impairment analysis. Smaller balance consumer loans are collectively evaluated for impairment.
The accrual of interest is discontinued on a loan when management believes; after considering collection efforts and other factors that the borrowers financial condition is such that collection of interest is doubtful. All interest accrued but not collected for loans that are placed on nonaccrual status or charged-off is reversed against interest income. Cash collections on nonaccrual loans are generally credited to the loan receivable balance, and no interest income is recognized on those loans until the principal balance has been collected. Loans are returned to accrual status when all the principal and interest amounts contractually due are brought current and future payments are reasonably assured.
Premises and equipment, net: Land is carried at cost. Bank premises, furniture and equipment and aircraft are carried at cost, less accumulated depreciation computed principally by the straight-line method over the estimated useful lives of the assets, which range from three to thirty years.
Leasehold improvements are carried at cost and are depreciated over the shorter of the estimated useful life or the lease period.
Long-term assets: Premises and equipment and other long-term assets are reviewed for impairment when events indicate that their carrying amount may not be recoverable from future undiscounted cash flows. If impaired, the assets are recorded at fair value.
Other real estate owned and Adriatica real estate: Real estate properties acquired through, or in lieu of, loan foreclosure are initially recorded at fair value less estimated selling costs at the date of foreclosure, establishing a new cost basis. After foreclosure, valuations are periodically performed by management and the real estate is carried at the lower of carrying amount or fair value less cost to sell.
Revenue and expenses from operations of other real estate owned and Adriatica real estate and impairment charges on other real estate are included in noninterest expense. Gains and losses on sale of other real estate are included in noninterest income.
Goodwill and core deposit intangible, net: Goodwill represents the excess of costs over fair value of net assets of businesses acquired. Goodwill is tested for impairment annually on December 31 or on an interim basis if an event triggering impairment may have occurred. The Company is unaware of any events or circumstances that would trigger impairment at December 31, 2012.
Core deposit intangibles are acquired customer relationships arising from bank acquisitions and are being amortized on a straight-line basis over their estimated useful lives of ten years. Core deposit intangibles are tested for impairment whenever events or changes in circumstances indicate the carrying amount of the assets may not be recoverable from future undiscounted cash flows.
Restricted stock : The Bank is a member of the FHLB system. Members are required to own a certain amount of stock based on the level of borrowings and other factors, and may invest in additional amounts. FHLB of Dallas
F-10
Independent Bank Group, Inc. and Subsidiaries
Notes to Consolidated Financial Statements
(Dollars in thousands, except per share information)
and Independent Bankers Financial Corporation stock do not have readily determinable fair values as ownership is restricted and they lack a ready market. As a result, these stocks are carried at cost and evaluated periodically by management for impairment.
Bank-owned life insurance: Bank-owned life insurance is recorded at the amount that can be realized under the insurance contracts at the balance sheet date, which is the cash surrender value adjusted for other charges or other amounts due that are probable at settlement. Changes in the net cash surrender value of the policies, as well as insurance proceeds received are reflected in noninterest income.
Income taxes: The Company has elected to be taxed under sections of federal income tax law which provide that, in lieu of corporation income taxes, the stockholders separately account for their pro rata shares of the Companys items of income, deductions, losses and credits. Because the Companys stockholders are obligated to pay federal income tax on the earnings of the Company, the Company has declared cash dividends sufficient to fund stockholders tax payments as they come due.
The Company evaluates uncertain tax positions at the end of each reporting period. The Company may recognize the tax benefit from an uncertain tax position only if it is more likely than not that the tax position will be sustained on examination by the taxing authorities, based on the technical merits of the position. The tax benefit recognized in the financial statements from any such position is measured based on the largest benefit that has a greater than fifty percent likelihood of being realized upon ultimate settlement. The open tax years are 2009 through 2011 for Federal purposes and 2008 through 2011 for the State of Texas. As of December 31, 2012, 2011 and 2010, respectively, after evaluating all uncertain tax positions, the Company has recorded no liability for interest or penalties on unrecognized tax positions at the end of the reporting period.
Loan commitments and related financial instruments: In the ordinary course of business, the Company has entered into certain off-balance-sheet financial instruments consisting of commitments to extend credit, commercial letters of credit, and standby letters of credit. Such financial instruments are recorded in the financial statements when they are funded or related fees are incurred or received.
Management estimates losses on off-balance-sheet financial instruments using the same methodology as for portfolio loans. Estimated losses on off-balance-sheet financial instruments are recorded by charges to the provision for losses and credits to other liabilities in the Companys consolidated balance sheet. There were no estimated losses on off-balance sheet financial instruments as of December 31, 2012, 2011 or 2010.
Stock based compensation: Stock compensation accounting guidance (FASB ASC 718) requires that all share-based payments to employees be valued at fair value on the grant date. Stock-based compensation expense is recognized using the straight-line method over the requisite service period for all awards.
Business combinations: The Company applies the acquisition method of accounting for business combinations. Under the acquisition method, the acquiring entity in a business combination recognizes 100 percent of the assets acquired and liabilities assumed at their acquisition date fair values. Management utilizes valuation techniques appropriate for the asset or liability being measured in determining these fair values. Any excess of the purchase price over amounts allocated to assets acquired, including identifiable intangible assets, and liabilities assumed is recorded as goodwill. Where amounts allocated to assets acquired and liabilities assumed is greater than the purchase price, a bargain purchase gain is recognized. Acquisition-related costs are expensed as incurred.
F-11
Independent Bank Group, Inc. and Subsidiaries
Notes to Consolidated Financial Statements
(Dollars in thousands, except per share information)
Comprehensive income: Accounting principles generally require that recognized revenue, expenses, gains and losses be included in net income. Although certain changes in assets and liabilities, such as unrealized gains and losses on available for sale securities, are reported as a separate component of the equity section of the balance sheet, such items, along with net income, are components of comprehensive income. Gains and losses on available for sale securities are reclassified to net income as the gains or losses are realized upon sale of the securities. Other than temporary impairment charges are reclassified to net income at the time of the charge.
Pro forma statements (unaudited): As of the effective date of the initial public offering discussed in Note 24, the Company will terminate its S-Corporation status and become a taxable corporate entity (C Corporation).
In accordance with 505-10-S99-3 of the FASB Accounting Standards Codification (formerly Topic 4B of the Staff Accounting Bulletins (SAB Topic 4B) issued by the Securities and Exchange Commission (SEC), the December 31, 2012 pro forma balance sheet presents a reclassification of retained earnings of the Company as a Sub-Chapter S Corporation to additional paid-in capital. That presentation assumes a constructive distribution to the owners followed by a contribution to the capital to the corporate entity. The transfer does not affect total shareholders equity.
In addition, the pro forma balance sheet includes the effect of recording a deferred tax asset resulting from the difference between the financial statement carrying amounts of assets and liabilities and their respective tax bases of the Company as a C Corporation. As of December 31, 2012, the Company would record an estimated deferred tax asset of $111, which is reflected as an increase in retained earnings of $111.
In addition, the pro forma balance sheet includes a dividend of $3,030 that was declared and paid to shareholders in January 2013. It also includes a planned dividend of approximately $3,000 that will be paid to current shareholders to make their estimated tax payments on the S-Corporation taxable earnings through the date the 2013 S-Corporation status is terminated. The pro forma balance sheet does not reflect any earnings subsequent to December 31, 2012.
Pro forma amounts for income tax expense and basic and diluted earnings per share have been presented assuming the Companys effective tax rate of 30.1%, 31.7% and 33.1% for the years ended December 31, 2012, 2011 and 2010 as if it had been a C Corporation during those periods. The difference in the statutory rate of 35% and the Companys effective rate is primarily due to nontaxable income earned on municipal securities and bank owned life insurance.
F-12
Independent Bank Group, Inc. and Subsidiaries
Notes to Consolidated Financial Statements
(Dollars in thousands, except per share information)
Earnings per share: Basic earnings per common share are net income divided by the weighted average number of common shares outstanding during the year. The unvested share-based payment awards that contain rights to nonforfeitable dividends are considered participating securities for this calculation. Diluted earnings per common share include the dilutive effect of additional potential common shares issuable under stock warrants. The dilutive effect of participating non vested common stock was not included as it was anti-dilutive. Earnings per share are restated for all stock splits and stock dividends through the date of issuance of the financial statements. In addition, proceeds from the assumed exercise of dilutive stock warrants are assumed to be used to repurchase common stock at the average market price. Participating securities from stock awards to employees were anti-dilutive as of December 31, 2012, 2011 and 2010.
Years Ended December 31, | ||||||||||||
2012 | 2011 | 2010 | ||||||||||
Basic earnings per share: |
||||||||||||
Net income |
$ | 17,377 | $ | 13,700 | $ | 13,116 | ||||||
Less: |
||||||||||||
Undistributed earnings allocated to participating securities |
168 | 193 | 261 | |||||||||
Dividends paid on participating securities |
169 | 155 | 125 | |||||||||
|
|
|
|
|
|
|||||||
Net income available to common shareholders |
$ | 17,040 | $ | 13,352 | $ | 12,730 | ||||||
|
|
|
|
|
|
|||||||
Weighted-average basic shares outstanding |
7,626,205 | 6,668,534 | 6,518,224 | |||||||||
|
|
|
|
|
|
|||||||
Basic earnings per share |
$ | 2.23 | $ | 2.00 | $ | 1.95 | ||||||
|
|
|
|
|
|
|||||||
Diluted earnings per share: |
||||||||||||
Net income available to common shareholders |
$ | 17,040 | $ | 13,352 | $ | 12,730 | ||||||
|
|
|
|
|
|
|||||||
Total weighted-average basic shares outstanding |
7,626,205 | 6,668,534 | 6,518,224 | |||||||||
Add dilutive stock warrants |
23,161 | 6,544 | | |||||||||
|
|
|
|
|
|
|||||||
Total weighted-average diluted shares outstanding |
7,649,366 | 6,675,078 | 6,518,224 | |||||||||
|
|
|
|
|
|
|||||||
Diluted earnings per share |
$ | 2.23 | $ | 2.00 | $ | 1.95 | ||||||
|
|
|
|
|
|
|||||||
Pro forma earnings per share (unaudited): |
||||||||||||
Pro forma net income |
$ | 12,147 | $ | 9,357 | $ | 8,775 | ||||||
Less undistributed earnings allocated to participating securities |
66 | 82 | 133 | |||||||||
Less dividends paid on participating securities |
169 | 155 | 125 | |||||||||
|
|
|
|
|
|
|||||||
Pro forma net income available to common shareholders after tax |
$ | 11,912 | $ | 9,120 | $ | 8,517 | ||||||
|
|
|
|
|
|
|||||||
Pro forma basic earnings per share |
$ | 1.56 | $ | 1.37 | $ | 1.31 | ||||||
|
|
|
|
|
|
|||||||
Pro forma diluted earnings per share |
$ | 1.56 | $ | 1.37 | $ | 1.31 | ||||||
|
|
|
|
|
|
|||||||
Anti-dilutive participating securities |
105,238 | 100,517 | 101,767 | |||||||||
|
|
|
|
|
|
Segment reporting: The Company has one reportable segment. The Companys chief operating decision-maker uses consolidated results to make operating and strategic decisions.
Fair values of financial instruments: Accounting standards define fair value, establish a framework for measuring fair value in U.S. generally accepted accounting principles, and require certain disclosures about fair value measurements (see Note 18, Fair Value Measurements). In general, fair values of financial instruments
F-13
Independent Bank Group, Inc. and Subsidiaries
Notes to Consolidated Financial Statements
(Dollars in thousands, except per share information)
are based upon quoted market prices, where available. If such quoted market prices are not available, fair value is based upon models that primarily use, as inputs, observable market-based parameters. Valuation adjustments may be made to ensure that financial instruments are recorded at fair value. These adjustments may include amounts to reflect counterparty credit quality and the Companys creditworthiness, among other things, as well as unobservable parameters. Any such valuation adjustments are applied consistently over time.
Subsequent events: Companies are required to evaluate events and transactions that occur after the balance sheet date but before the date the financial statements are issued. They must recognize in the financial statements the effect of all events or transactions that provide additional evidence of conditions that existed at the balance sheet date, including the estimates inherent in the financial preparation process. Entities shall not recognize the impact of events or transactions that provide evidence about conditions that did not exist at the balance sheet date but arose after that date. The Company has evaluated subsequent events through February 27, 2013, the time of filing these financial statements with the SEC and noted no subsequent events requiring financial statement recognition or disclosure, except as disclosed in Note 24.
Note 2. | Recent Accounting Pronouncements |
ASU No. 2011-02, Receivables (Topic 310) A Creditors Determination of Whether a Restructuring Is a Troubled Debt Restructuring . ASU 2011-02 clarifies which loan modifications constitute troubled debt restructurings and is intended to assist creditors in determining whether a modification of the terms of a receivable meets the criteria to be considered a troubled debt restructuring, both for purposes of recording an impairment loss and for disclosure of troubled debt restructurings. In evaluating whether a restructuring constitutes a troubled debt restructuring, a creditor must separately conclude, under the guidance clarified by ASU 2011-02, that both of the following exist: (a) the restructuring constitutes a concession; and (b) the debtor is experiencing financial difficulties. ASU 2011-02 was effective for the year ended December 31, 2012 and did not have a material effect on the Companys operating results or financial condition.
ASU 2011-12, Comprehensive Income (Topic 220) Deferral of the Effective Date for Amendments to the Presentation of Reclassifications of Items Out of Accumulated Other Comprehensive Income in Accounting Standards Update No. 2011-05. ASU 2011-12 defers changes in ASU No. 2011-05 that relate to the presentation of reclassification adjustments to allow the FASB time to re-deliberate whether to require presentation of such adjustments on the face of the financial statements to show the effects of reclassifications out of accumulated other comprehensive income on the components of net income and other comprehensive income. ASU 2011-12 allows entities to continue to report reclassifications out of accumulated other comprehensive income consistent with the presentation requirements in effect before ASU 2011-05. All other requirements in ASU 2011-05 are not affected by ASU No. 2011-12. ASU 2011-12 became effective for the Company on January 1, 2012. In connection with the application of ASU 2011-05, the Companys financial statements now include a separate statement of comprehensive income.
Note 3. | Restrictions on Cash and Due From Banks |
At December 31, 2012, 2011 and 2010, the Company did not have a deposit requirement with the Federal Reserve Bank as a result of the Companys decision to hold a portion of excess cash with the Federal Reserve.
F-14
Independent Bank Group, Inc. and Subsidiaries
Notes to Consolidated Financial Statements
(Dollars in thousands, except per share information)
Note 4. | Statement of Cash Flows |
The Company has chosen to report on a net basis its cash receipts and cash payments for time deposits accepted and repayments of those deposits, and loans made to customers and principal collections on those loans. The Company uses the indirect method to present cash flows from operating activities. Other supplemental cash flow information is presented below:
Years Ended December 31, | ||||||||||||
2012 | 2011 | 2010 | ||||||||||
Cash transactions: |
||||||||||||
Interest expense paid |
$ | 13,329 | $ | 13,534 | $ | 13,654 | ||||||
|
|
|
|
|
|
|||||||
Noncash transactions: |
||||||||||||
Transfers of loans to other real estate owned |
$ | 885 | $ | 5,723 | $ | 13,410 | ||||||
|
|
|
|
|
|
|||||||
Loans to facilitate the sale of other real estate owned |
$ | 3,473 | $ | 661 | $ | 358 | ||||||
|
|
|
|
|
|
|||||||
Adriatica real estate notes financed |
$ | | $ | 12,188 | $ | | ||||||
|
|
|
|
|
|
|||||||
Stock warrants issued for guarantee of other borrowings |
$ | | $ | 475 | $ | | ||||||
|
|
|
|
|
|
|||||||
Common stock issued for noncompete agreement |
$ | 115 | $ | | $ | | ||||||
|
|
|
|
|
|
|||||||
Transfer of bank premises to other real estate |
$ | 379 | $ | | $ | | ||||||
|
|
|
|
|
|
F-15
Independent Bank Group, Inc. and Subsidiaries
Notes to Consolidated Financial Statements
(Dollars in thousands, except per share information)
Supplemental schedule of noncash investing activities from acquisitions and branch sale:
Years Ended December 31, | ||||||||||||
2012 | 2011 | 2010 | ||||||||||
Noncash assets acquired: |
||||||||||||
Certificates of deposit held in other banks |
$ | 17,078 | $ | | $ | | ||||||
Securities available for sale |
10,314 | | 9,937 | |||||||||
Restricted stock |
1,417 | | 204 | |||||||||
Loans |
180,448 | | 67,505 | |||||||||
Premises and equipment |
5,717 | | 14,541 | |||||||||
Other real estate owned |
1,573 | | 4,553 | |||||||||
Goodwill |
17,746 | | | |||||||||
Core deposit intangible |
1,362 | | 1,748 | |||||||||
Other assets |
1,669 | | 564 | |||||||||
|
|
|
|
|
|
|||||||
Total assets |
$ | 237,324 | $ | | $ | 99,052 | ||||||
|
|
|
|
|
|
|||||||
Noncash liabilities assumed: |
||||||||||||
Deposits |
$ | 216,444 | $ | | $ | 120,431 | ||||||
FHLB advances |
12,500 | | | |||||||||
Other borrowings |
| | 3,635 | |||||||||
Junior subordinated debt |
3,609 | | | |||||||||
Other liabilities |
700 | | 949 | |||||||||
|
|
|
|
|
|
|||||||
Total liabilities |
$ | 233,253 | $ | | $ | 125,015 | ||||||
|
|
|
|
|
|
|||||||
Cash and cash equivalents acquired from acquisitions |
$ | 46,230 | $ | | $ | 37,819 | ||||||
|
|
|
|
|
|
|||||||
Contingent consideration recorded |
$ | | $ | | $ | 1,752 | ||||||
|
|
|
|
|
|
|||||||
Cash paid to shareholders of acquired banks |
$ | 46,600 | $ | | $ | 101 | ||||||
|
|
|
|
|
|
|||||||
Fair value of common stock issued to shareholders of acquired bank |
$ | 3,701 | $ | | $ | 3,311 | ||||||
|
|
|
|
|
|
|||||||
Noncash assets transferred: |
||||||||||||
Loans |
$ | 807 | $ | | $ | | ||||||
Premises and equipment |
280 | | | |||||||||
Goodwill |
254 | | | |||||||||
Core deposit intangible |
119 | | | |||||||||
Other assets |
13 | | | |||||||||
|
|
|
|
|
|
|||||||
Total assets |
$ | 1,473 | $ | | $ | | ||||||
|
|
|
|
|
|
|||||||
Non cash liabilities transferred: |
||||||||||||
Deposits |
$ | 20,068 | $ | | $ | | ||||||
Other liabilities |
6 | | | |||||||||
|
|
|
|
|
|
|||||||
Total liabilities |
$ | 20,074 | $ | | $ | | ||||||
|
|
|
|
|
|
|||||||
Cash and cash equivalents transferred in branch sale |
$ | 133 | $ | | $ | | ||||||
|
|
|
|
|
|
|||||||
Deposit premium received |
$ | 414 | $ | | $ | | ||||||
|
|
|
|
|
|
|||||||
Cash paid to buyer, net of deposit premium |
$ | 18,430 | $ | | $ | | ||||||
|
|
|
|
|
|
F-16
Independent Bank Group, Inc. and Subsidiaries
Notes to Consolidated Financial Statements
(Dollars in thousands, except per share information)
Note 5. | Securities |
Securities have been classified in the consolidated balance sheets according to managements intent. The amortized cost of securities and their approximate fair values at December 31, 2012, 2011 and 2010 are as follows:
Amortized
Cost |
Gross
Unrealized Gains |
Gross
Unrealized Losses |
Fair
Value |
|||||||||||||
Securities Available for Sale |
||||||||||||||||
December 31, 2012: |
||||||||||||||||
U.S. treasuries |
$ | 3,493 | $ | 54 | $ | | $ | 3,547 | ||||||||
Government agency securities |
69,636 | 575 | | 70,211 | ||||||||||||
Obligations of state and municipal subdivisions |
34,908 | 2,123 | (217 | ) | 36,814 | |||||||||||
Corporate bonds |
2,105 | 23 | (25 | ) | 2,103 | |||||||||||
Residential mortgage-backed securities guaranteed by FNMA, GNMA, FHLMC and SBA |
635 | 45 | | 680 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
$ | 110,777 | $ | 2,820 | $ | (242 | ) | $ | 113,355 | ||||||||
|
|
|
|
|
|
|
|
|||||||||
December 31, 2011: |
||||||||||||||||
U.S. treasuries |
$ | 2,492 | $ | 58 | $ | | $ | 2,550 | ||||||||
Government agency securities |
65,092 | 615 | (21 | ) | 65,686 | |||||||||||
Obligations of state and municipal subdivisions |
20,970 | 1,355 | | 22,325 | ||||||||||||
Residential mortgage-backed securities guaranteed by FNMA, GNMA, FHLMC and SBA |
3,275 | 155 | | 3,430 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
$ | 91,829 | $ | 2,183 | $ | (21 | ) | $ | 93,991 | ||||||||
|
|
|
|
|
|
|
|
|||||||||
December 31, 2010: |
||||||||||||||||
U.S. treasuries |
$ | 1,000 | $ | 30 | $ | | $ | 1,030 | ||||||||
Government agency securities |
40,686 | 798 | (64 | ) | 41,420 | |||||||||||
Obligations of state and municipal subdivisions |
6,063 | 71 | (136 | ) | 5,998 | |||||||||||
Residential mortgage-backed securities guaranteed by FNMA, GNMA, FHLMC and SBA |
3,996 | 168 | (1 | ) | 4,163 | |||||||||||
|
|
|
|
|
|
|
|
|||||||||
$ | 51,745 | $ | 1,067 | $ | (201 | ) | $ | 52,611 | ||||||||
|
|
|
|
|
|
|
|
Securities with a carrying amount of approximately $84,117, $50,722 and $42,875 at December 31, 2012, 2011 and 2010, respectively, were pledged to secure public fund deposits.
F-17
Independent Bank Group, Inc. and Subsidiaries
Notes to Consolidated Financial Statements
(Dollars in thousands, except per share information)
As of December 31, 2012, the Moody credit ratings in the state and municipal obligations portfolio are shown in the following table.
Moody Credit Rating |
% of portfolio | |||
A1 |
5.2 | % | ||
Aa1 |
2.2 | |||
Aa2 |
6.6 | |||
Aa3 |
0.9 | |||
Aaa |
33.7 | |||
Not available |
8.2 | |||
Not rated |
43.2 | |||
|
|
|||
100.0 | % | |||
|
|
Approximately 51.4% of the state and municipal obligations are bonds with no credit ratings which are guaranteed by the Texas Permanent School Fund which maintains a AAA rating separate from the State of Texas. The municipals are primarily general obligation bonds issued by independent school districts located in Texas.
As of December 31, 2012 the two corporate bonds were rated A1 and A2.
Proceeds from sale of securities available for sale and gross gains and losses for the years ended December 31, 2012, 2011 and 2010 were as follows:
Years Ended December 31, | ||||||||||||
2012 | 2011 | 2010 | ||||||||||
Proceeds from sale |
$ | 2,078 | $ | | $ | | ||||||
|
|
|
|
|
|
|||||||
Gross gains |
$ | | $ | | $ | | ||||||
|
|
|
|
|
|
|||||||
Gross losses |
$ | 3 | $ | | $ | | ||||||
|
|
|
|
|
|
The amortized cost and estimated fair value of securities available for sale at December 31, 2012, by contractual maturity, are shown below. Maturities of pass-through certificates will differ from contractual maturities because borrowers may have the right to call or prepay obligations with or without call or prepayment penalties.
December 31, 2012 | ||||||||
Securities Available for
Sale |
||||||||
Amortized
Cost |
Fair
Value |
|||||||
Due in one year or less |
$ | 2,499 | $ | 2,526 | ||||
Due from one year to five years |
49,559 | 49,960 | ||||||
Due from five to ten years |
25,832 | 26,231 | ||||||
Thereafter |
32,252 | 33,958 | ||||||
|
|
|
|
|||||
110,142 | 112,675 | |||||||
Residential mortgage-backed securities guaranteed by FNMA, GNMA,
|
635 | 680 | ||||||
|
|
|
|
|||||
$ | 110,777 | $ | 113,355 | |||||
|
|
|
|
F-18
Independent Bank Group, Inc. and Subsidiaries
Notes to Consolidated Financial Statements
(Dollars in thousands, except per share information)
Unrealized losses and fair value, aggregated by investment category and length of time that individual securities have been in a continuous unrealized loss position, as of December 31, 2012, 2011 and 2010, are summarized as follows:
Value Impaired | ||||||||||||||||||||||||
Less Than 12 Months | Greater Than 12 Months | Total | ||||||||||||||||||||||
Description of Securities |
Estimated
Fair Value |
Unrealized
Losses |
Estimated
Fair Value |
Unrealized
Losses |
Estimated
Fair Value |
Unrealized
Losses |
||||||||||||||||||
Securities Available for Sale |
||||||||||||||||||||||||
December 31, 2012: |
||||||||||||||||||||||||
Obligations of state and municipal subdivisions |
$ | 6,551 | $ | (217 | ) | $ | | $ | | $ | 6,551 | $ | (217 | ) | ||||||||||
Corporate bonds |
990 | (25 | ) | | | 990 | (25 | ) | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
$ | 7,541 | $ | (242 | ) | $ | | $ | | $ | 7,541 | $ | (242 | ) | |||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
December 31, 2011: |
||||||||||||||||||||||||
Government agency securities |
$ | 9,479 | $ | (21 | ) | $ | | $ | | $ | 9,479 | $ | (21 | ) | ||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
December 31, 2010: |
||||||||||||||||||||||||
Government agency securities |
$ | 6,808 | $ | (64 | ) | $ | | $ | | $ | 6,808 | $ | (64 | ) | ||||||||||
Obligations of state and municipal subdivisions |
3,853 | (136 | ) | | | 3,853 | (136 | ) | ||||||||||||||||
Residential mortgage-backed securities guaranteed by FNMA, GNMA and FHLMC |
344 | (1 | ) | | | 344 | (1 | ) | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
$ | 11,005 | $ | (201 | ) | $ | | $ | | $ | 11,005 | $ | (201 | ) | |||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
Unrealized losses are generally due to changes in interest rates. The Company has the intent to hold these securities until maturity or a forecasted recovery and it is more likely than not that the Company will not have to sell the securities before the recovery of their cost basis. As such, the losses are deemed to be temporary.
Effective January 1, 2010, held to maturity securities with an amortized cost of $40,090 were transferred to the available for sale category for liquidity purposes. Due to this transfer, the Company recorded a net unrealized gain of $979 in other comprehensive income.
F-19
Independent Bank Group, Inc. and Subsidiaries
Notes to Consolidated Financial Statements
(Dollars in thousands, except per share information)
Note 6. | Loans, Net and Allowance for Loan Losses |
Loans, net at December 31, 2012, 2011 and 2010 consisted of the following:
December 31, | ||||||||||||
2012 | 2011 | 2010 | ||||||||||
Commercial |
$ | 169,882 | $ | 127,827 | $ | 121,805 | ||||||
Real estate: |
||||||||||||
Commercial |
648,494 | 470,820 | 361,106 | |||||||||
Commercial construction, land and land development |
97,329 | 79,063 | 81,270 | |||||||||
Residential |
306,187 | 219,938 | 207,996 | |||||||||
Single-family interim construction |
67,920 | 24,592 | 20,402 | |||||||||
Agricultural |
40,127 | 34,923 | 32,902 | |||||||||
Consumer |
39,502 | 28,437 | 31,270 | |||||||||
Other |
73 | 80 | 76 | |||||||||
|
|
|
|
|
|
|||||||
1,369,514 | 985,680 | 856,827 | ||||||||||
Allowance for loan losses |
(11,478 | ) | (9,060 | ) | (8,403 | ) | ||||||
|
|
|
|
|
|
|||||||
$ | 1,358,036 | $ | 976,620 | $ | 848,424 | |||||||
|
|
|
|
|
|
Loans serviced for the benefit of others at December 31, 2012, 2011 and 2010 amounted to $3,775, $5,784 and $12,453, respectively.
The Company has certain lending policies and procedures in place that are designed to maximize loan income within an acceptable level of risk. Management reviews and approves these policies and procedures on a regular basis. A reporting system supplements the review process by providing management with frequent reports related to loan production, loan quality, concentrations of credit, loan delinquencies and non-performing and potential problem loans.
Commercial loans are underwritten after evaluating and understanding the borrowers ability to operate profitably and prudently expand its business. The Companys management examines current and projected cash flows to determine the ability of the borrower to repay their obligations as agreed. Commercial loans are primarily made based on the identified cash flows of the borrower and secondarily on the underlying collateral provided by the borrower. These cash flows, however, may not be as expected and the value of collateral securing the loans may fluctuate. Most commercial loans are secured by the assets being financed or other business assets such as accounts receivable or inventory and may incorporate a personal guarantee; however, some short term loans may be made on an unsecured basis.
Commercial real estate loans are subject to underwriting standards and processes similar to commercial loans. These loans are viewed primarily as cash flow loans and secondarily as loans secured by real estate. Commercial real estate lending typically involves higher loan principal amounts and the repayment of these loans is generally largely dependent on the successful operation of the property or the business conducted on the property securing the loan. Commercial real estate loans may be more adversely affected by conditions in the real estate markets or in the general economy. The properties securing the Companys commercial real estate portfolio are diverse in terms of type and geographic location. Management monitors the diversification of the portfolio on a quarterly basis by type and geographic location. Management also tracks the level of owner occupied property versus non owner occupied property.
F-20
Independent Bank Group, Inc. and Subsidiaries
Notes to Consolidated Financial Statements
(Dollars in thousands, except per share information)
Land and commercial land development loans are underwritten using feasibility studies, independent appraisal reviews and financial analysis of the developers or property owners. Generally, borrowers must have a proven track record of success. Commercial construction loans are generally based upon estimates of cost and value of the completed project. These estimates may not be accurate. Commercial construction loans often involve the disbursement of substantial funds with the repayment dependent on the success of the ultimate project. Sources of repayment for these loans may be pre-committed permanent financing or sale of the developed property. The loans in this portfolio are geographically diverse and due to the increased risk are monitored closely by management and the board of directors on a quarterly basis.
Residential real estate and single-family interim construction loans are underwritten primarily based on borrowers credit scores, documented income and minimum collateral values. Relatively small loan amounts are spread across many individual borrowers which minimizes risk in the residential portfolio. In addition, management evaluates trends in past dues and current economic factors on a regular basis.
Agricultural loans are collateralized by real estate and/or non-real estate. Agricultural real estate loans are primarily comprised of loans for the purchase of farmland. Loan-to-value ratios on loans secured by farmland generally do not exceed 80% and have amortization periods limited to twenty years. Agricultural non-real estate loans are generally comprised of term loans to fund the purchase of equipment, livestock and seasonal operating lines to cash grain farmers to plant and harvest corn and soybeans. Specific underwriting standards have been established for agricultural-related loans including the establishment of projections for each operating year based on industry developed estimates of farm input costs and expected commodity yields and prices. Operating lines are typically written for one year and secured by the crop and other farm assets as considered necessary.
Agricultural loans carry significant credit risks as they involve larger balances concentrated with single borrowers or groups of related borrowers. In addition, repayment of such loans depends on the successful operation or management of the farm property securing the loan or for which an operating loan is utilized. Farming operations may be affected by adverse weather conditions such as drought, hail or floods that can severely limit crop yields.
Consumer loans represent only about 3% of the outstanding total loan portfolio. Collateral consists primarily of automobiles and other personal assets. Credit score analysis is used to supplement the underwriting process.
Most of the Companys lending activity occurs within the State of Texas, primarily in the north and central Texas regions. The majority of the Companys portfolio consists of commercial and residential real estate loans. As of December 31, 2012, 2011 and 2010, there were no concentrations of loans related to a single industry in excess of 10% of total loans.
The allowance for loan losses is an amount that management believes will be adequate to absorb estimated losses relating to specifically identified loans, as well as probable credit losses inherent in the balance of the loan portfolio.
The allowance is derived from the following two components: 1) allowances established on individual impaired loans, which are based on a review of the individual characteristics of each loan, including the customers ability to repay the loan, the underlying collateral values, and the industry the customer operates in, and 2) allowances based on actual historical loss experience for the last three years for similar types of loans in the Companys loan portfolio adjusted for primarily changes in the lending policies and procedures; collection, charge-off and recovery practices; nature and volume of the loan portfolio; volume and severity of nonperforming loans;
F-21
Independent Bank Group, Inc. and Subsidiaries
Notes to Consolidated Financial Statements
(Dollars in thousands, except per share information)
existence and effect of any concentrations of credit and the level of such concentrations and current, national and local economic and business conditions. This second component also includes an unallocated allowance to cover uncertainties that could affect managements estimate of probable losses. The unallocated allowance reflects the imprecision inherent in the underlying assumptions used in the methodologies for estimating this component.
The Companys management continually evaluates the allowance for loan losses determined from the allowances established on individual loans and the amounts determined from historical loss percentages adjusted for the qualitative factors above. Should any of the factors considered by management change, the Companys estimate of loan losses could also change and would affect the level of future provision expense. While the calculation of the allowance for loan losses utilizes managements best judgment and all the information available, the adequacy of the allowance for loan losses is dependent on a variety of factors beyond the Companys control, including, among other things, the performance of the entire loan portfolio, the economy, changes in interest rates and the view of regulatory authorities towards loan classifications.
In addition, regulatory agencies, as an integral part of their examination process, periodically review the Banks allowance for loan losses, and may require the Bank to make additions to the allowance based on their judgment about information available to them at the time of their examinations.
Loans requiring an allocated loan loss provision are generally identified at the servicing officer level based on review of weekly past due reports and/or the loan officers communication with borrowers. In addition, past due loans are discussed at weekly officer loan committee meetings to determine if classification is warranted. The Companys credit department has implemented an internal risk based loan review process to identity potential internally classified loans that supplements the annual independent external loan review. The external review generally covers all loans greater than one million dollars. These reviews include analysis of borrowers financial condition, payment histories and collateral values to determine if a loan should be internally classified. Generally, once classified, an impaired loan analysis is completed by the credit department to determine if the loan is impaired and the amount of allocated allowance required.
The Texas economy, specifically the Companys lending area of north and central Texas, has generally performed better and appears to be recovering faster than certain other parts of the country. However, Texas is not completely immune to the problems associated with the U.S. economy. The risk of loss associated with all segments of the loan portfolio continues to be impacted by the prolonged economic downturn. The downturn in the economy and other risk factors are minimized by the Companys underwriting standards which include the following principles: 1) financial strength of the borrower including strong earnings, high net worth, significant liquidity and acceptable debt to worth ratio, 2) managerial business competence, 3) ability to repay, 4) loan to value, 5) projected cash flow and 6) guarantor financial statements as applicable.
F-22
Independent Bank Group, Inc. and Subsidiaries
Notes to Consolidated Financial Statements
(Dollars in thousands, except per share information)
Following is a summary of the activity in the allowance for loan losses by loan class for the years ended December 31, 2012, 2011 and 2010 and total investment in loans at December 31, 2012, 2011 and 2010:
Commercial |
Commercial
Real Estate, Land and Land Development |
Residential
Real Estate |
Single-Family
Interim Construction |
Agricultural | Consumer | Other | Unallocated | Total | ||||||||||||||||||||||||||||
Year Ended December 31, 2012: |
||||||||||||||||||||||||||||||||||||
Balance at the beginning of year |
$ | 1,259 | $ | 5,051 | $ | 1,964 | $ | 317 | $ | 209 | $ | 235 | $ | | $ | 25 | $ | 9,060 | ||||||||||||||||||
Provision for loan losses |
1,261 | 289 | 1,176 | 206 | (50 | ) | 75 | | 227 | 3,184 | ||||||||||||||||||||||||||
Charge-offs |
(169 | ) | (484 | ) | (178 | ) | | | (86 | ) | | | (917 | ) | ||||||||||||||||||||||
Recoveries |
26 | 68 | 3 | | | 54 | | | 151 | |||||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||
Balance at end of year |
$ | 2,377 | $ | 4,924 | $ | 2,965 | $ | 523 | $ | 159 | $ | 278 | $ | | $ | 252 | $ | 11,478 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||
At December 31, 2012: |
||||||||||||||||||||||||||||||||||||
Allowance for losses: |
||||||||||||||||||||||||||||||||||||
Individually evaluated for impairment |
$ | 165 | $ | 644 | $ | 164 | $ | | $ | | $ | 16 | $ | | $ | | $ | 989 | ||||||||||||||||||
Collectively evaluated for impairment |
2,212 | 4,280 | 2,801 | 523 | 159 | 262 | | 252 | 10,489 | |||||||||||||||||||||||||||
Loans acquired with deteriorated credit |
||||||||||||||||||||||||||||||||||||
quality |
| | | | | | | | | |||||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||
Ending balance |
$ | 2,377 | $ | 4,924 | $ | 2,965 | $ | 523 | $ | 159 | $ | 278 | $ | | $ | 252 | $ | 11,478 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||
Loans: |
||||||||||||||||||||||||||||||||||||
Individually evaluated for impairment |
$ | 724 | $ | 10,601 | $ | 3,376 | $ | | $ | | $ | 105 | $ | | $ | | $ | 14,806 | ||||||||||||||||||
Collectively evaluated for impairment |
166,965 | 732,581 | 301,259 | 67,361 | 40,127 | 39,397 | 73 | | 1,347,763 | |||||||||||||||||||||||||||
Acquired with deteriorated credit quality |
2,193 | 2,641 | 1,552 | 559 | | | | | 6,945 | |||||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||
Ending balance |
$ | 169,882 | $ | 745,823 | $ | 306,187 | $ | 67,920 | $ | 40,127 | $ | 39,502 | $ | 73 | $ | | $ | 1,369,514 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||
Year Ended December 31, 2011: |
||||||||||||||||||||||||||||||||||||
Balance at the beginning of year |
$ | 1,228 | $ | 4,294 | $ | 1,639 | $ | 250 | $ | 167 | $ | 293 | $ | | $ | 532 | $ | 8,403 | ||||||||||||||||||
Provision for loan losses |
37 | 1,416 | 641 | 38 | 42 | (17 | ) | | (507 | ) | 1,650 | |||||||||||||||||||||||||
Charge-offs |
(23 | ) | (694 | ) | (316 | ) | (20 | ) | | (94 | ) | | | (1,147 | ) | |||||||||||||||||||||
Recoveries |
17 | 35 | | 49 | | 53 | | | 154 | |||||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||
Balance at end of year |
$ | 1,259 | $ | 5,051 | $ | 1,964 | $ | 317 | $ | 209 | $ | 235 | $ | | $ | 25 | $ | 9,060 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
F-23
Independent Bank Group, Inc. and Subsidiaries
Notes to Consolidated Financial Statements
(Dollars in thousands, except per share information)
Commercial |
Commercial
Real Estate, Land and Land Development |
Residential
Real Estate |
Single-
Family Interim Construction |
Agricultural | Consumer | Other | Unallocated | Total | ||||||||||||||||||||||||||||
At December 31, 2011: |
||||||||||||||||||||||||||||||||||||
Allowance for losses: |
||||||||||||||||||||||||||||||||||||
Individually evaluated for impairment |
$ | 124 | $ | 802 | $ | 666 | $ | 50 | $ | | $ | 1 | $ | | $ | | $ | 1,643 | ||||||||||||||||||
Collectively evaluated for impairment |
1,135 | 4,249 | 1,298 | 267 | 209 | 234 | | 25 | 7,417 | |||||||||||||||||||||||||||
Loans acquired with deteriorated credit quality |
| | | | | | | | | |||||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||
Ending balance |
$ | 1,259 | $ | 5,051 | $ | 1,964 | $ | 317 | $ | 209 | $ | 235 | $ | | $ | 25 | $ | 9,060 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||
Loans: |
||||||||||||||||||||||||||||||||||||
Individually evaluated for impairment |
$ | 830 | $ | 13,980 | $ | 4,576 | $ | 91 | $ | | $ | 93 | $ | | $ | | $ | 19,570 | ||||||||||||||||||
Collectively evaluated for impairment |
126,997 | 535,903 | 215,362 | 24,501 | 34,923 | 28,344 | 80 | | 966,110 | |||||||||||||||||||||||||||
Acquired with deteriorated credit quality |
| | | | | | | | | |||||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||
Ending balance |
$ | 127,827 | $ | 549,883 | $ | 219,938 | $ | 24,592 | $ | 34,923 | $ | 28,437 | $ | 80 | $ | | $ | 985,680 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||
Year Ended December 31, 2010: |
||||||||||||||||||||||||||||||||||||
Balance at the beginning of year |
$ | 855 | $ | 3,171 | $ | 1,214 | $ | 940 | $ | 145 | $ | 358 | $ | | $ | 59 | $ | 6,742 | ||||||||||||||||||
Provision for loan losses |
937 | 1,536 | 1,213 | (139 | ) | 22 | 1 | | 473 | 4,043 | ||||||||||||||||||||||||||
Charge-offs |
(579 | ) | (416 | ) | (837 | ) | (561 | ) | | (114 | ) | | | (2,507 | ) | |||||||||||||||||||||
Recoveries |
15 | 3 | 49 | 10 | | 48 | | | 125 | |||||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||
Balance at end of year |
$ | 1,228 | $ | 4,294 | $ | 1,639 | $ | 250 | $ | 167 | $ | 293 | $ | | $ | 532 | $ | 8,403 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||
At December 31, 2010: |
||||||||||||||||||||||||||||||||||||
Allowance for losses: |
||||||||||||||||||||||||||||||||||||
Individually evaluated for impairment |
$ | 70 | $ | 832 | $ | 360 | $ | 50 | $ | | $ | 1 | $ | | $ | | $ | 1,313 | ||||||||||||||||||
Collectively evaluated for impairment |
1,158 | 3,462 | 1,279 | 200 | 167 | 292 | | 532 | 7,090 | |||||||||||||||||||||||||||
Loans acquired with deteriorated credit quality |
| | | | | | | | | |||||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||
Ending balance |
$ | 1,228 | $ | 4,294 | $ | 1,639 | $ | 250 | $ | 167 | $ | 293 | $ | | $ | 532 | $ | 8,403 | ||||||||||||||||||
|
|
|
|
|
|
|
|
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|
|
|
|
|
|
|
|||||||||||||||||||
Loans: |
||||||||||||||||||||||||||||||||||||
Individually evaluated for impairment |
$ | 112 | $ | 13,207 | $ | 2,469 | $ | 99 | $ | | $ | 233 | $ | | $ | | $ | 16,120 | ||||||||||||||||||
Collectively evaluated for impairment |
121,693 | 429,169 | 205,527 | 20,303 | 32,902 | 31,037 | 76 | | 840,707 | |||||||||||||||||||||||||||
Acquired with deteriorated credit quality |
| | | | | | | | | |||||||||||||||||||||||||||
|
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||
Ending balance |
$ | 121,805 | $ | 442,376 | $ | 207,996 | $ | 20,402 | $ | 32,902 | $ | 31,270 | $ | 76 | $ | | $ | 856,827 | ||||||||||||||||||
|
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|
F-24
Independent Bank Group, Inc. and Subsidiaries
Notes to Consolidated Financial Statements
(Dollars in thousands, except per share information)
Nonperforming loans by loan class at December 31, 2012, 2011 and 2010 were summarized as follows:
Commercial |
Commercial
Real Estate, Land and Land Development |
Single-
Family Interim Construction |
Agricultural | Consumer | Other | Total | ||||||||||||||||||||||||||
Residential
Real Estate |
||||||||||||||||||||||||||||||||
December 31, 2012: |
||||||||||||||||||||||||||||||||
Nonaccrual loans |
$ | 218 | $ | 4,857 | $ | 894 | $ | 560 | $ | | $ | 70 | $ | | $ | 6,599 | ||||||||||||||||
Loans past due 90 days and still accruing |
| | | | | 2 | | 2 | ||||||||||||||||||||||||
Troubled debt restructurings (not included in nonaccrual or loans past due and still accruing) |
481 | 1,778 | 2,165 | | | 9 | | 4,433 | ||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||
$ | 699 | $ | 6,635 | $ | 3,059 | $ | 560 | $ | | $ | 81 | $ | | $ | 11,034 | |||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||
December 31, 2011: |
||||||||||||||||||||||||||||||||
Nonaccrual loans |
$ | 131 | $ | 1,291 | $ | 2,864 | $ | 91 | $ | | $ | 54 | $ | | $ | 4,431 | ||||||||||||||||
Loans past due 90 days and still accruing |
31 | | | | | 24 | | 55 | ||||||||||||||||||||||||
Troubled debt restructurings (not included in nonaccrual or loans past due and still accruing) |
552 | 6,094 | 136 | | | 12 | | 6,794 | ||||||||||||||||||||||||
|
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|
|
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|
|
|
|
|
|
|
|||||||||||||||||
$ | 714 | $ | 7,385 | $ | 3,000 | $ | 91 | $ | | $ | 90 | $ | | $ | 11,280 | |||||||||||||||||
|
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|
|
|
|
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|
|
|
|
|
|
|
|
|
|||||||||||||||||
December 31, 2010: |
||||||||||||||||||||||||||||||||
Nonaccrual loans |
$ | 194 | $ | 5,531 | $ | 2,079 | $ | | $ | | $ | 42 | $ | | $ | 7,846 | ||||||||||||||||
Loans past due 90 days and still accruing |
39 | | 92 | | 2 | 1 | | 134 | ||||||||||||||||||||||||
Troubled debt restructurings (not included in nonaccrual or loans past due and still accruing) |
147 | 7,671 | 382 | | | | | 8,200 | ||||||||||||||||||||||||
|
|
|
|
|
|
|
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|
|
|
|
|
|
|
|
|||||||||||||||||
$ | 380 | $ | 13,202 | $ | 2,553 | $ | | $ | 2 | $ | 43 | $ | | $ | 16,180 | |||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Impaired loans are those loans where it is probable that all amounts due according to contractual terms of the loan agreement will not be collected. The Company has identified these loans through its normal loan review procedures. Impaired loans are measured based on 1) the present value of expected future cash flows discounted at the loans effective interest rate; 2) the loans observable market price; or 3) the fair value of collateral if the loan is collateral dependent. Substantially all of the Companys impaired loans are measured at the fair value of the collateral. In limited cases the Company may use other methods to determine the level of impairment of a loan if such loan is not collateral dependent.
F-25
Independent Bank Group, Inc. and Subsidiaries
Notes to Consolidated Financial Statements
(Dollars in thousands, except per share information)
Impaired loans by loan class at December 31, 2012, 2011 and 2010 were summarized as follows:
Commercial |
Commercial
Real Estate, Land and Land Development |
Residential
Real Estate |
Single-Family
Interim Construction |
Agricultural | Consumer | Other | Total | |||||||||||||||||||||||||
At December 31, 2012: |
||||||||||||||||||||||||||||||||
Impaired loans: |
||||||||||||||||||||||||||||||||
Impaired loans with an allowance for loan losses |
$ | 644 | $ | 5,532 | $ | 1,301 | $ | | $ | | $ | 73 | $ | | $ | 7,550 | ||||||||||||||||
Impaired loans with no allowance for loan losses |
80 | 5,069 | 2,075 | | | 32 | | 7,256 | ||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||
Total impaired loans |
$ | 724 | $ | 10,601 | $ | 3,376 | $ | | $ | | $ | 105 | $ | | $ | 14,806 | ||||||||||||||||
|
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||
Unpaid principal balance of impaired loans |
$ | 741 | $ | 11,140 | $ | 3,475 | $ | | $ | | $ | 122 | $ | | $ | 15,478 | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||
Allowance for loan losses on impaired loans |
$ | 165 | $ | 644 | $ | 164 | $ | | $ | | $ | 16 | $ | | $ | 989 | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||
For the year ended December 31, 2012: |
||||||||||||||||||||||||||||||||
Average recorded investment in impaired loans |
$ | 777 | $ | 12,291 | $ | 3,976 | $ | 46 | $ | | $ | 99 | $ | | $ | 17,189 | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||
Interest income recognized on impaired loans |
$ | 27 | $ | 483 | $ | 187 | $ | | $ | | $ | 8 | $ | | $ | 705 | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||
At December 31, 2011: |
||||||||||||||||||||||||||||||||
Impaired loans: |
||||||||||||||||||||||||||||||||
Impaired loans with an allowance for loan losses |
$ | 409 | $ | 6,837 | $ | 2,633 | $ | 91 | $ | | $ | 2 | $ | | $ | 9,972 | ||||||||||||||||
Impaired loans with no allowance for loan losses |
421 | 7,143 | 1,943 | | | 91 | | 9,598 | ||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||
Total impaired loans |
$ | 830 | $ | 13,980 | $ | 4,576 | $ | 91 | $ | | $ | 93 | $ | | $ | 19,570 | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||
Unpaid principal balance of impaired loans |
$ | 846 | $ | 14,603 | $ | 4,803 | $ | 95 | $ | | $ | 112 | $ | | $ | 20,459 | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||
Allowance for loan losses on impaired loans |
$ | 124 | $ | 802 | $ | 666 | $ | 50 | $ | | $ | 1 | $ | | $ | 1,643 | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||
For the year ended December 31, 2011: |
||||||||||||||||||||||||||||||||
Average recorded investment in impaired loans |
$ | 471 | $ | 13,593 | $ | 3,615 | $ | 95 | $ | | $ | 68 | $ | | $ | 17,842 | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||
Interest income recognized on impaired loans |
$ | 51 | $ | 857 | $ | 186 | $ | | $ | | $ | 5 | $ | | $ | 1,099 | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||
At December 31, 2010: |
||||||||||||||||||||||||||||||||
Impaired loans: |
||||||||||||||||||||||||||||||||
Impaired loans with an allowance for loan losses |
$ | 101 | $ | 4,804 | $ | 2,057 | $ | 99 | $ | | $ | 4 | $ | | $ | 7,065 | ||||||||||||||||
Impaired loans with no allowance for loan losses |
11 | 8,403 | 412 | | | 229 | | 9,055 | ||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||
Total impaired loans |
$ | 112 | $ | 13,207 | $ | 2,469 | $ | 99 | $ | | $ | 233 | $ | | $ | 16,120 | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||
Unpaid principal balance of impaired loans |
$ | 137 | $ | 13,729 | $ | 2,514 | $ | 99 | $ | | $ | 240 | $ | | $ | 16,719 | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||
Allowance for loan losses on impaired loans |
$ | 70 | $ | 832 | $ | 360 | $ | 50 | $ | | $ | 1 | $ | | $ | 1,313 | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||
For the year ended December 31, 2010: |
||||||||||||||||||||||||||||||||
Average recorded investment in impaired loans |
$ | 106 | $ | 9,011 | $ | 2,163 | $ | 1,955 | $ | 71 | $ | 141 | $ | | $ | 13,447 | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||
Interest income recognized on impaired loans |
$ | 9 | $ | 526 | $ | 93 | $ | 12 | $ | | $ | 12 | $ | | $ | 652 | ||||||||||||||||
|
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|
|
|
|
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|
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|
|
|
|
|
F-26
Independent Bank Group, Inc. and Subsidiaries
Notes to Consolidated Financial Statements
(Dollars in thousands, except per share information)
Certain impaired loans have adequate collateral and do not require a related allowance for loan loss. The Company will charge off that portion of any loan which management considers a loss. Commercial and real estate loans are generally considered for charge off when exposure beyond collateral coverage is apparent and when no further collection of the loss portion is anticipated based on the borrowers financial condition.
The restructuring of a loan is considered a troubled debt restructuring if both 1) the borrower is experiencing financial difficulties and 2) the creditor has granted a concession. Concessions may include interest rate reductions or below market interest rates, principal forgiveness, extending amortization and other actions intended to minimize potential losses. A troubled debt restructured loan is identified as impaired and measured for credit impairment as of each reporting period in accordance with the guidance in ASC 310-10-35.
F-27
Independent Bank Group, Inc. and Subsidiaries
Notes to Consolidated Financial Statements
(Dollars in thousands, except per share information)
Following is a summary of troubled debt restructurings during the years ended December 31, 2012, 2011 and 2010 and loans that have been restructured during the previous twelve months that subsequently defaulted during the years ended December 31, 2012, 2011 and 2010:
Commercial |
Commercial
Real Estate, Land and Land Development |
Residential
Real Estate |
Single-Family
Interim Construction |
Agricultural | Consumer | Other | Total | |||||||||||||||||||||||||
Troubled debt restructurings during the year ended December 31, 2012: |
||||||||||||||||||||||||||||||||
Number of contracts |
2 | 1 | 3 | | | 1 | | 7 | ||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||
Pre-restructuring outstanding recorded investment |
$ | 280 | $ | 101 | $ | 1,919 | $ | | $ | | $ | 26 | $ | | $ | 2,326 | ||||||||||||||||
|
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||
Post-restructuring outstanding recorded investment |
$ | 280 | $ | 101 | $ | 1,919 | $ | | $ | | $ | 26 | $ | | $ | 2,326 | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||
Troubled debt restructurings during the previous twelve months that subsequently defaulted during the year ended December 31, 2012: |
||||||||||||||||||||||||||||||||
Number of contracts |
| 1 | | | | 1 | | 2 | ||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||
Recorded investment |
$ | | $ | 101 | $ | | $ | | $ | | $ | 26 | $ | | $ | 127 | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||
Troubled debt restructurings during the year ended December 31, 2011: |
||||||||||||||||||||||||||||||||
Number of contracts |
4 | 9 | 1 | | | 2 | | 16 | ||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||
Pre-restructuring outstanding recorded investment |
$ | 596 | $ | 6,420 | $ | 23 | $ | | $ | | $ | 132 | $ | | $ | 7,171 | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||
Post-restructuring outstanding recorded investment |
$ | 596 | $ | 6,420 | $ | 23 | $ | | $ | | $ | 21 | $ | | $ | 7,060 | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||
Troubled debt restructurings during the previous twelve months that subsequently defaulted during the year ended December 31, 2011: |
||||||||||||||||||||||||||||||||
Number of contracts |
| 1 | | | | | | 1 | ||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||
Recorded investment |
$ | | $ | 92 | $ | | $ | | $ | | $ | | $ | | $ | 92 | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||
Troubled debt restructurings during the year ended December 31, 2010: |
||||||||||||||||||||||||||||||||
Number of contracts |
4 | 8 | 7 | | | | | 19 | ||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||
Pre-restructuring outstanding recorded investment |
$ | 147 | $ | 7,671 | $ | 861 | $ | | $ | | $ | | $ | | $ | 8,679 | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||
Post-restructuring outstanding recorded investment |
$ | 147 | $ | 7,671 | $ | 861 | $ | | $ | | $ | | $ | | $ | 8,679 | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||
Troubled debt restructurings during the previous twelve months that subsequently defaulted during the year ended December 31, 2010: |
||||||||||||||||||||||||||||||||
Number of contracts |
| | 1 | | | | | 1 | ||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||
Recorded investment |
$ | | $ | | $ | 480 | $ | | $ | | $ | | $ | | $ | 480 | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
F-28
Independent Bank Group, Inc. and Subsidiaries
Notes to Consolidated Financial Statements
(Dollars in thousands, except per share information)
The recorded investment in troubled debt restructurings, including those on nonaccrual, was $7,544, $7,099 and $8,680 as of December 31, 2012, 2011 and 2010.
Modifications primarily relate to extending the amortization periods of the loans and interest rate concessions. The majority of these loans were identified as impaired prior to restructuring, therefore the modifications did not materially impact the Companys determination of the allowance for loan loss.
Loans are considered past due if the required principal and interest payments have not been received as of the date such payments were due. The following table presents information regarding the aging of past due loans by loan class as of December 31, 2012, 2011 and 2010:
Loans
30-89 Days Past Due |
Loans
90 or More Past Due |
Total Past
Due Loans |
Current
Loans |
Total
Loans |
||||||||||||||||
December 31, 2012: |
||||||||||||||||||||
Commercial |
$ | 845 | $ | | $ | 845 | $ | 169,037 | $ | 169,882 | ||||||||||
Commercial real estate, land and land development |
3,091 | 62 | 3,153 | 742,670 | 745,823 | |||||||||||||||
Residential real estate |
1,305 | 360 | 1,665 | 304,522 | 306,187 | |||||||||||||||
Single-family interim construction |
| 559 | 559 | 67,361 | 67,920 | |||||||||||||||
Agricultural |
23 | | 23 | 40,104 | 40,127 | |||||||||||||||
Consumer |
110 | 32 | 142 | 39,360 | 39,502 | |||||||||||||||
Other |
| | | 73 | 73 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
$ | 5,374 | $ | 1,013 | $ | 6,387 | $ | 1,363,127 | $ | 1,369,514 | |||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
December 31, 2011: |
||||||||||||||||||||
Commercial |
$ | 383 | $ | 122 | $ | 505 | $ | 127,322 | $ | 127,827 | ||||||||||
Commercial real estate, land and land development |
5,226 | 3,379 | 8,605 | 541,278 | 549,883 | |||||||||||||||
Residential real estate |
2,171 | 54 | 2,225 | 217,713 | 219,938 | |||||||||||||||
Single-family interim construction |
| | | 24,592 | 24,592 | |||||||||||||||
Agricultural |
| | | 34,923 | 34,923 | |||||||||||||||
Consumer |
257 | 34 | 291 | 28,146 | 28,437 | |||||||||||||||
Other |
| | | 80 | 80 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
$ | 8,037 | $ | 3,589 | $ | 11,626 | $ | 974,054 | $ | 985,680 | |||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
December 31, 2010: |
||||||||||||||||||||
Commercial |
$ | 412 | $ | 160 | $ | 572 | $ | 121,233 | $ | 121,805 | ||||||||||
Commercial real estate, construction, land and land development |
237 | 420 | 657 | 441,719 | 442,376 | |||||||||||||||
Residential real estate |
2,303 | 1,240 | 3,543 | 204,453 | 207,996 | |||||||||||||||
Single-family interim construction |
| | | 20,402 | 20,402 | |||||||||||||||
Agricultural |
| 2 | 2 | 32,900 | 32,902 | |||||||||||||||
Consumer |
389 | 20 | 409 | 30,861 | 31,270 | |||||||||||||||
Other |
| | | 76 | 76 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
$ | 3,341 | $ | 1,842 | $ | 5,183 | $ | 851,644 | $ | 856,827 | |||||||||||
|
|
|
|
|
|
|
|
|
|
F-29
Independent Bank Group, Inc. and Subsidiaries
Notes to Consolidated Financial Statements
(Dollars in thousands, except per share information)
The Companys internal classified report is segregated into the following categories: 1) Pass/Watch, 2) Other Assets Especially Mentioned (OAEM), 3) Substandard and 4) Doubtful. The loans placed in the Pass/Watch category reflect the Companys opinion that the loans reflect potential weakness which requires monitoring on a more frequent basis. The loans in the OAEM category reflect the Companys opinion that the credit contains weaknesses which represent a greater degree of risk and warrant extra attention. These loans are reviewed monthly in the officers and directors loan committee meetings to determine if a change in category is warranted. The loans placed in the substandard category are considered to be potentially inadequately protected by the current debt service capacity of the borrower and/or the pledged collateral. These credits, even if apparently protected by collateral value, have shown weakness related to adverse financial, managerial, economic, market or political conditions which may jeopardize repayment of principal and interest. There is possibility that some future loss could be sustained by the Company if such weakness is not corrected. The Doubtful category includes loans that are in default or principal exposure is probable. Substandard and doubtful loans are individually evaluated to determine if they should be classified as impaired and an allowance is allocated if deemed necessary under ASC 310-10.
The loans that are not impaired are included with the remaining pass credits in determining the portion of the allowance for loan loss based on historical loss experience and other qualitative factors. The portfolio is segmented into categories including: commercial loans, consumer loans, commercial real estate loans, residential real estate loans and agricultural loans. The adjusted historical loss percentage is applied to each category. Each category is then added together to determine the allowance allocated under ASC 450-20.
F-30
Independent Bank Group, Inc. and Subsidiaries
Notes to Consolidated Financial Statements
(Dollars in thousands, except per share information)
A summary of loans by credit quality indicator by class as of December 31, 2012, 2011 and 2010 is as follows:
Pass
(Rating 1-4) |
Pass/Watch | OAEM | Substandard | Doubtful | Total | |||||||||||||||||||
December 31, 2012: |
||||||||||||||||||||||||
Commercial |
$ | 165,842 | $ | 2,824 | $ | 203 | $ | 1,013 | $ | | $ | 169,882 | ||||||||||||
Commercial real estate, construction, land and land development |
716,243 | 11,502 | 8,804 | 9,274 | | 745,823 | ||||||||||||||||||
Residential real estate |
295,870 | 4,303 | 867 | 5,039 | 108 | 306,187 | ||||||||||||||||||
Single-family interim construction |
67,360 | | | 560 | | 67,920 | ||||||||||||||||||
Agricultural |
39,936 | 147 | | 44 | | 40,127 | ||||||||||||||||||
Consumer |
39,315 | 60 | 13 | 114 | | 39,502 | ||||||||||||||||||
Other |
73 | | | | | 73 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
$ | 1,324,639 | $ | 18,836 | $ | 9,887 | $ | 16,044 | $ | 108 | $ | 1,369,514 | |||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
December 31, 2011: |
||||||||||||||||||||||||
Commercial |
$ | 125,719 | $ | 972 | $ | 18 | $ | 1,084 | $ | 34 | $ | 127,827 | ||||||||||||
Commercial real estate, construction, land and land development |
512,616 | 22,086 | 3,345 | 11,836 | | 549,883 | ||||||||||||||||||
Residential real estate |
209,461 | 3,504 | 1,087 | 5,832 | 54 | 219,938 | ||||||||||||||||||
Single-family interim construction |
24,115 | 386 | | 91 | | 24,592 | ||||||||||||||||||
Agricultural |
34,464 | 264 | | 195 | | 34,923 | ||||||||||||||||||
Consumer |
28,095 | 70 | 27 | 245 | | 28,437 | ||||||||||||||||||
Other |
80 | | | | | 80 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
$ | 934,550 | $ | 27,282 | $ | 4,477 | $ | 19,283 | $ | 88 | $ | 985,680 | |||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
December 31, 2010: |
||||||||||||||||||||||||
Commercial |
$ | 114,132 | $ | 5,081 | $ | 964 | $ | 1,532 | $ | 96 | $ | 121,805 | ||||||||||||
Commercial real estate, construction, land and land development |
396,902 | 21,779 | 5,446 | 18,249 | | 442,376 | ||||||||||||||||||
Residential real estate |
197,720 | 5,267 | 1,048 | 3,904 | 57 | 207,996 | ||||||||||||||||||
Single-family interim construction |
19,907 | 396 | | 99 | | 20,402 | ||||||||||||||||||
Agricultural |
30,877 | 1,632 | 93 | 300 | | 32,902 | ||||||||||||||||||
Consumer |
30,654 | 116 | 103 | 394 | 3 | 31,270 | ||||||||||||||||||
Other |
76 | | | | | 76 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
$ | 790,268 | $ | 34,271 | $ | 7,654 | $ | 24,478 | $ | 156 | $ | 856,827 | |||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
F-31
Independent Bank Group, Inc. and Subsidiaries
Notes to Consolidated Financial Statements
(Dollars in thousands, except per share information)
The Company identified certain acquired loans which experienced credit deterioration since origination (purchased credit impaired loans PCI). Accretion on PCI loans is based on estimated future cash flows, regardless of contractual maturity. The outstanding balance and related carrying amount of purchased impaired loans at December 31, 2012, April 1, 2012 (I Bank acquisition date) and October 1, 2012 (Community Group acquisition date) are as follows:
Acquired | ||||||||||||
December 31,
2012 |
April 1,
2012 |
October 1,
2012 |
||||||||||
Outstanding balance |
$ | 9,178 | $ | 4,740 | $ | 6,099 | ||||||
Nonaccretable difference |
(2,232 | ) | (1,296 | ) | (1,294 | ) | ||||||
Accretable yield |
(1 | ) | (27 | ) | | |||||||
|
|
|
|
|
|
|||||||
Carrying amount |
$ | 6,945 | $ | 3,417 | $ | 4,805 | ||||||
|
|
|
|
|
|
There was no provision for loan losses or activity in the allowance for loan losses established after the acquisition date through December 31, 2012 for purchased impaired loans.
Note 7. | Premises and Equipment, Net |
Premises and equipment, net at December 31, 2012, 2011 and 2010 consisted of the following:
December 31, | ||||||||||||
2012 | 2011 | 2010 | ||||||||||
Land |
$ | 14,548 | $ | 14,149 | $ | 14,677 | ||||||
Building |
48,054 | 44,814 | 44,639 | |||||||||
Furniture, fixtures and equipment |
13,881 | 12,692 | 11,696 | |||||||||
Aircraft |
5,298 | 3,700 | 3,700 | |||||||||
Leasehold and tenant improvements |
725 | 620 | 620 | |||||||||
Construction in progress |
7,349 | 1,052 | 124 | |||||||||
|
|
|
|
|
|
|||||||
89,855 | 77,027 | 75,456 | ||||||||||
Less accumulated depreciation |
(19,274 | ) | (16,605 | ) | (13,403 | ) | ||||||
|
|
|
|
|
|
|||||||
$ | 70,581 | $ | 60,422 | $ | 62,053 | |||||||
|
|
|
|
|
|
Depreciation expense amounted to $3,524, $3,302 and $2,868 for the years ended December 31, 2012, 2011 and 2010, respectively.
The Company has contracted for construction of a new branch and office building in Austin, Texas. Construction is expected to be complete during the first quarter of 2013. The total contracted cost related to the construction of the building is $8,474. Total construction costs incurred through December 31, 2012 are included in construction in progress above.
The Company leases offices in the corporate location and other buildings to other unaffiliated tenants. Rental income of $588, $566 and $577 was recognized during the years ended December 31, 2012, 2011 and 2010, respectively. This rental income is recorded in the statements of income as an offset to occupancy and equipment expense.
F-32
Independent Bank Group, Inc. and Subsidiaries
Notes to Consolidated Financial Statements
(Dollars in thousands, except per share information)
At December 31, 2012, minimum future rental payments receivable from these tenants were as follows:
First year |
$ | 419 | ||
Second year |
238 | |||
Third year |
169 | |||
Fourth year |
169 | |||
Fifth year |
154 | |||
Thereafter |
52 | |||
|
|
|||
$ | 1,201 | |||
|
|
In addition, Adriatica leases retail space to tenants in the Adriatica development (see Note 21).
Note 8. | Other Real Estate Owned |
Other real estate owned at December 31, 2012, 2011 and 2010 consisted of the following:
December 31, | ||||||||||||
2012 | 2011 | 2010 | ||||||||||
Construction, land and land development |
$ | 6,166 | $ | 7,653 | $ | 6,982 | ||||||
Residential |
681 | 100 | 155 | |||||||||
Commercial real estate |
| 182 | 182 | |||||||||
Agricultural |
| 457 | 535 | |||||||||
|
|
|
|
|
|
|||||||
$ | 6,847 | $ | 8,392 | $ | 7,854 | |||||||
|
|
|
|
|
|
Note 9. | Goodwill and Core Deposit Intangible, Net |
The Company reported goodwill from its acquisitions prior to 2010 in the amount of $11,222. There was no goodwill recorded during 2010 or 2011. During 2012, the Company recorded goodwill of $12,967 and $4,779 in conjunction with the acquisitions of I Bank and Community Group, respectively. In September 2012, goodwill was reduced by $254 as a result of the sale of the Copland, Texas branch office.
The gross carrying value and accumulated amortization of core deposit intangible is as follows:
December 31, | ||||||||||||
2012 | 2011 | 2010 | ||||||||||
Core deposit intangible |
$ | 6,374 | $ | 5,540 | $ | 5,540 | ||||||
Less accumulated amortization |
(3,123 | ) | (2,876 | ) | (2,309 | ) | ||||||
|
|
|
|
|
|
|||||||
$ | 3,251 | $ | 2,664 | $ | 3,231 | |||||||
|
|
|
|
|
|
Amortization of the core deposit intangible amounted to $656, $567 and $431 for the years ended December 31, 2012, 2011 and 2010, respectively.
F-33
Independent Bank Group, Inc. and Subsidiaries
Notes to Consolidated Financial Statements
(Dollars in thousands, except per share information)
The future amortization expense related to core deposit intangible remaining at December 31, 2012 is as follows:
First year |
$ | 703 | ||
Second year |
584 | |||
Third year |
346 | |||
Fourth year |
325 | |||
Fifth year |
325 | |||
Thereafter |
968 | |||
|
|
|||
$ | 3,251 | |||
|
|
Note 10. | Deposits |
Deposits at December 31, 2012, 2011 and 2010 consisted of the following:
December 31, | ||||||||||||||||||||||||
2012 | 2011 | 2010 | ||||||||||||||||||||||
Amount | Percent | Amount | Percent | Amount | Percent | |||||||||||||||||||
Noninterest-bearing demand accounts |
$ | 259,664 | 18.7 | % | $ | 168,849 | 16.4 | % | $ | 133,307 | 14.4 | % | ||||||||||||
Interest-bearing checking accounts |
688,234 | 49.5 | 464,653 | 45.1 | 229,855 | 24.8 | ||||||||||||||||||
Savings accounts |
115,413 | 8.3 | 100,550 | 9.8 | 68,329 | 7.4 | ||||||||||||||||||
Limited access money market accounts |
28,439 | 2.0 | 27,082 | 2.6 | 188,203 | 20.3 | ||||||||||||||||||
Individual retirement accounts (IRA) |
34,374 | 2.5 | 29,021 | 2.8 | 30,892 | 3.3 | ||||||||||||||||||
Certificates of deposit, less than $100,000 |
100,462 | 7.2 | 103,446 | 10.0 | 159,843 | 17.2 | ||||||||||||||||||
Certificates of deposit, $100,000 and greater |
164,154 | 11.8 | 136,883 | 13.3 | 117,114 | 12.6 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
$ | 1,390,740 | 100.0 | % | $ | 1,030,484 | 100.0 | % | $ | 927,543 | 100.0 | % | |||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
At December 31, 2012, the scheduled maturities of certificates of deposit, including IRAs, were as follows:
First year |
$ | 219,973 | ||
Second year |
39,499 | |||
Third year |
19,422 | |||
Fourth year |
7,653 | |||
Fifth year |
12,443 | |||
|
|
|||
$ | 298,990 | |||
|
|
Brokered deposits at December 31, 2012, 2011 and 2010 totaled $31,238, $41,780 and $43,731, respectively.
Note 11. | Federal Home Loan Bank Advances |
At December 31, 2012, the Company has advances from the FHLB of Dallas under note payable arrangements at maturities which range from March 1, 2013 to January 1, 2026. Payments on these notes are made monthly. The weighted average interest rate of all notes was 2.01%, 2.40% and 2.55% at December 31, 2012, 2011 and 2010, respectively. The balances outstanding on these advances were $164,601, $82,291 and $55,273 at December 31, 2012, 2011 and 2010, respectively.
F-34
Independent Bank Group, Inc. and Subsidiaries
Notes to Consolidated Financial Statements
(Dollars in thousands, except per share information)
Contractual maturities of FHLB advances at December 31, 2012 were as follows:
First year |
$ | 3,027 | ||
Second year |
20,022 | |||
Third year |
23,000 | |||
Fourth year |
32,529 | |||
Fifth year |
30,000 | |||
Thereafter |
56,023 | |||
|
|
|||
$ | 164,601 | |||
|
|
The advances are secured by FHLB stock owned by the Company and a blanket lien on certain loans with an aggregate available carrying value of $524,811 at December 31, 2012. The Company had remaining credit available under the FHLB advance program of $267,511 at December 31, 2012.
At December 31, 2012, the Company had $92,700 in undisbursed advance commitments (letters of credit) with the FHLB. As of December 31, 2012, these commitments mature on various dates from January 2013 through December 2013. The FHLB letters of credit were obtained in lieu of pledging securities to secure public fund deposits that are over the FDIC insurance limit. At December 31, 2012, there were no disbursements against the advance commitments.
Note 12. | Notes Payable and Other Borrowings |
Notes payable at December 31, 2012, 2011 and 2010 consisted of the following:
December 31, | ||||||||||||
2012 | 2011 | 2010 | ||||||||||
Note payable by Adriatica to an unaffiliated commercial bank in the original amount of $12,188. The loan is secured by real property consisting of a mixed used development in McKinney, TX. Interest accrues at 3.25% through June 2013 and then adjusts to Wall Street Journal (WSJ) prime. Interest is paid quarterly and principal payments are required at 90% of the proceeds of any sales of the property collateralizing the loan. |
$ | 3,142 | $ | 10,842 | $ | | ||||||
Adriatica loan from the same commercial bank to finance the purchase of an additional building located in the development. The original balance was $353. Interest accrues at WSJ prime (3.25%). Payments of principal and interest of $6 are due quarterly. |
337 | 350 | | |||||||||
Note payable to an unaffiliated commercial bank in the original amount of $12,000, due in quarterly installments of accrued interest and principal installments of $375. The loan accrues interest at the WSJ prime rate, subject to a 4% floor (4% at December 31, 2012). The loan is secured by the outstanding capital stock of Independent Bank. One final payment of unpaid principal and interest is due on December 24, 2016. The terms of the loan require the Company to maintain minimum capital ratios and other covenants. |
6,000 | 7,500 | 9,000 |
F-35
Independent Bank Group, Inc. and Subsidiaries
Notes to Consolidated Financial Statements
(Dollars in thousands, except per share information)
December 31, | ||||||||||||
2012 | 2011 | 2010 | ||||||||||
Note payable to an unaffiliated commercial bank in the original amount of $7,000, due in quarterly installments of accrued interest and principal installments of $250. The loan accrues interest at the WSJ prime rate, subject to a 4.5% floor (4.5% at December 31, 2012). The loan is secured by the outstanding capital stock of Independent Bank. One final payment of unpaid principal and interest is due on March 15, 2015. |
6,250 | | | |||||||||
|
|
|
|
|
|
|||||||
$ | 15,729 | $ | 18,692 | $ | 9,000 | |||||||
|
|
|
|
|
|
Other borrowings at December 31, 2012, 2011 and 2010 consisted of the following:
December 31, | ||||||||||||
2012 | 2011 | 2010 | ||||||||||
Unsecured subordinated debenture, payable to an unaffiliated commercial bank in the original amount of $4,500, due in quarterly principal installments of $188 through December, 2016. Interest accrues at WSJ prime plus 0.5% with a 4% floor (4% at December 31, 2012). |
$ | 3,000 | $ | 3,750 | $ | 4,500 | ||||||
Unsecured subordinated debentures in the amount of $5,000. |
||||||||||||
Interest payments at 7.00% are made quarterly and semiannual principal payments of $625 will be due beginning January 15, 2015. The remaining principal and accrued interest is due on July 15, 2018. |
5,000 | 5,000 | | |||||||||
Unsecured subordinated debentures in the amount of $2,730. Interest payments at 7.00% are made quarterly and semiannual principal payments of $341 will be due beginning April 15, 2015. The remaining principal and accrued interest is due on October 15, 2018. |
2,730 | 2,730 | | |||||||||
Unsecured subordinated debentures assumed in the acquisition of an unrelated financial institution in the amount of $2,285. The debentures bear interest at a fixed rate of 7% through September 2012 and then an adjusted rate of WSJ prime +2% subject to a 6% floor thereafter and until maturity, September 30, 2017. |
1,223 | 1,468 | 1,713 | |||||||||
Unsecured subordinated debentures in the amount of $4,155. Interest payments at 7.00% are made quarterly and semiannual principal payments beginning August 2013. The remaining principal and accrued interest is due on February 15, 2017. |
4,155 | 4,155 | 4,155 | |||||||||
Unsecured subordinated debentures in the amount of $1,015. Interest payments at 7.00% are made quarterly. The principal and and accrued interest was fully paid on September 30, 2011. |
| | 1,015 | |||||||||
Unsecured subordinated debentures in the amount of $4,680. Interest payments at 7.00% are made quarterly and semiannual principal payments beginning April 2016. The remaining principal and accrued interest is due on October 15, 2019. |
4,680 | | | |||||||||
|
|
|
|
|
|
|||||||
$ | 20,788 | $ | 17,103 | $ | 11,383 | |||||||
|
|
|
|
|
|
At December 31, 2012, 2011 and 2010, other borrowings included amounts owed to related parties of $8,536, $6,111 and $3,332, respectively.
F-36
Independent Bank Group, Inc. and Subsidiaries
Notes to Consolidated Financial Statements
(Dollars in thousands, except per share information)
At December 31, 2012, the scheduled principal maturities of the Companys notes payable and other borrowings are as follows:
First year |
$ | 4,028 | ||
Second year |
4, 548 | |||
Third year |
13,754 | |||
Fourth year |
6, 634 | |||
Fifth year |
3,865 | |||
Thereafter |
3,688 | |||
|
|
|||
$ | 36,517 | |||
|
|
In addition, the Company has a $25,000 federal funds line of credit note with an unaffiliated bank, with no set maturity date. The lender may terminate the line at any time without notice. The line is provided on an unsecured basis and must be repaid the following business day from when the funds were borrowed. There were no borrowings against the line at December 31, 2012, 2011 or 2010.
Note 13. | Junior Subordinated Debentures |
In March 2003, IB Trust I, an unconsolidated subsidiary of the Company, issued 5,000 shares of floating rate trust preferred securities at $1,000 per share for an aggregate price of $5,000, all of which was outstanding at December 31, 2012, 2011 and 2010. These securities bear an interest rate of 3.25% over the three-month LIBOR (3.56% and 3.68% at December 31, 2012 and 2011, respectively). The trust preferred securities will mature in March 2033. The proceeds from the sale of the trust preferred securities and the issuance of $155 in common securities to the Company were used by Trust I to purchase approximately $5,155 of floating rate junior subordinated debentures of the Company which have the same payment terms as the trust preferred securities. Distributions on the trust preferred securities and on the common securities issued to the Company were payable quarterly beginning June 2003.
In March 2004, IB Trust II, an unconsolidated subsidiary of the Company, issued 3,000 shares of floating rate trust preferred securities at $1,000 per share for an aggregate price of $3,000, all of which was outstanding at December 31, 2012, 2011 and 2010. These securities bear an interest rate of 2.85% over the three-month LIBOR (3.19% and 3.25% at December 31, 2012 and 2011, respectively). The trust preferred securities will mature in March 2034. The proceeds from the sale of the trust preferred securities and the issuance of $93 in common securities to the Company were used by Trust II to purchase approximately $3,093 of floating rate junior subordinated debentures of the Company which have the same payment terms as the trust preferred securities. Distributions on the trust preferred securities and on the common securities issued to the Company were payable quarterly beginning June 2004.
In December 2004, IB Trust III, an unconsolidated subsidiary of the Company, issued 3,600 shares of floating rate trust preferred securities at $1,000 per share for an aggregate price of $3,600, all of which was outstanding at December 31, 2012, 2011 and 2010. These securities bear an interest rate of 2.40% over the three-month LIBOR (2.71% and 2.90% at December 31, 2012 and 2011, respectively). The trust preferred securities will mature in December 2035. The proceeds from the sale of the trust preferred securities and the issuance of $112 in common securities to the Company were used by Trust I to purchase approximately $3,712 of floating rate junior subordinated debentures of the Company which have the same payment terms as the trust preferred securities. Distributions on the trust preferred securities and on the common securities issued to the Company were payable quarterly beginning March 2005.
F-37
Independent Bank Group, Inc. and Subsidiaries
Notes to Consolidated Financial Statements
(Dollars in thousands, except per share information)
In February 2005, IB Centex Trust I, an unconsolidated subsidiary of the Company, issued 2,500 shares of floating rate trust preferred securities at $1,000 per share for an aggregate price of $2,500, all of which was outstanding at December 31, 2012, 2011 and 2010. These securities bear an interest rate of 3.25% over the three-month LIBOR (3.56% and 3.75% at December 31, 2012 and 2011, respectively). The trust preferred securities will mature in February 2035. The proceeds from the sale of the trust preferred securities and the issuance of $78 in common securities to the Company were used by Centex Trust I to purchase approximately $2,578 of floating rate junior subordinated debentures of the Company which have the same payment terms as the trust preferred securities. Distributions on the trust preferred securities and on the common securities issued to the Company were payable quarterly beginning June 2005.
In connection with the acquisition of Community Group Inc. in October 2012, (Note 20) the Company, assumed $3,500 (3,500 shares with a liquidation amount of 1,000 per security) of Floating Rate Cumulative Trust Preferred Securities (TPS) which were issued through a wholly-owned subsidiary, Community Group Statutory Trust I (CGI Trust I). CGI Trust I invested the total proceeds from the sale of TPS and the $109 proceeds from the sale of common stock to CGI in floating rate Junior Subordinated Debentures (Debentures) issued by CGI. Interest on the TPS is payable quarterly on March 15, June 15, September 15, and December 15 of each year at a rate equal to the three month LIBOR rate plus 1.60% (1.99% at December 31, 2012). Principal payments are due at maturity on June 21, 2037. The Company may redeem the Debentures, in whole or in part, on any interest payment date on or after the redemption date of June 21, 2012 at an amount equal to the principal amount of the Debentures being redeemed plus accrued and unpaid interest on such Debentures to the redemption date
Except under certain circumstances, the common securities issued to the Company by the trusts possess sole voting rights with respect to matters involving those entities. Under certain circumstances, the Company may, from time to time, defer the debentures interest payments, which would result in a deferral of distribution payments on the related trust preferred securities and, with certain exceptions, prevent the Company from declaring or paying cash distributions on the Companys common stock and any other future debt ranking equally with or junior to the debentures. The trust preferred securities are guaranteed by the Company.
Note 14. | Financial Instruments with Off-Balance Sheet Risk |
The Company is a party to financial instruments with off-balance sheet risk in the normal course of business to meet the financing needs of its customers. The commitments involve, to varying degrees, elements of credit and interest rate risk in excess of the amount recognized in the balance sheet.
The Companys exposure to credit loss in the event of nonperformance by the other party to the financial instrument for commitments to extend credit is represented by the contractual amount of this instrument. The Company uses the same credit policies in making commitments and conditional obligations as it does for on-balance sheet instruments. At December 31, 2012, 2011 and 2010, the approximate amounts of these financial instruments were as follows:
December 31, | ||||||||||||
2012 | 2011 | 2010 | ||||||||||
Commitments to extend credit |
$ | 153,932 | $ | 103,861 | $ | 74,885 | ||||||
Standby letters of credit |
2,704 | 1,564 | 1,259 | |||||||||
|
|
|
|
|
|
|||||||
$ | 156,636 | $ | 105,425 | $ | 76,144 | |||||||
|
|
|
|
|
|
F-38
Independent Bank Group, Inc. and Subsidiaries
Notes to Consolidated Financial Statements
(Dollars in thousands, except per share information)
Commitments to extend credit are agreements to lend to a customer as long as there is no violation of any condition established in the contract. Commitments generally have fixed expiration dates or other termination clauses and may require payment of a fee. Since many of the commitments are expected to expire without being drawn upon, the total commitment amounts do not necessarily represent future cash requirements. The Company evaluates each customers credit worthiness on a case-by-case basis. The amount of collateral obtained if deemed necessary by the Company upon extension of credit is based on managements credit evaluation of the counterparty. Collateral held varies but may include accounts receivable, inventory, farm crops, property, plant and equipment and income-producing commercial properties.
Letters of credit are written conditional commitments used by the Company to guarantee the performance of a customer to a third party. The Companys policies generally require that letter of credit arrangements contain security and debt covenants similar to those contained in loan arrangements. In the event the customer does not perform in accordance with the terms of the agreement with the third party, the Company would be required to fund the commitment. The maximum potential amount of future payments the Company could be required to make is represented by the contractual amount shown in the table above. If the commitment is funded, the Company would be entitled to seek recovery from the customer. As of December 31, 2012, 2011 and 2010, no amounts have been recorded as liabilities for the Companys potential obligations under these guarantees.
Note 15. | Commitments and Contingencies |
The Company is involved in certain legal actions arising from normal business activities. Management believes that the outcome of such proceedings will not materially affect the financial position, results of operations or cash flows of the Company.
The Company leases certain branch facilities and other facilities. Rent expense related to these leases amounted to $413, $276 and $230 for the years ended December 31, 2012, 2011 and 2010, respectively.
At December 31, 2012, minimum future rental payments due under noncancelable lease commitments were as follows:
First year |
$ | 569 | ||
Second year |
547 | |||
Third year |
480 | |||
Fourth year |
216 | |||
Fifth year |
100 | |||
Thereafter |
330 | |||
|
|
|||
$ | 2,242 | |||
|
|
F-39
Independent Bank Group, Inc. and Subsidiaries
Notes to Consolidated Financial Statements
(Dollars in thousands, except per share information)
Note 16. | Related Party Transactions |
In the ordinary course of business, the Company has and expects to continue to have transactions, including loans to its officers, directors and their affiliates. In the opinion of management, such transactions are on the same terms as those prevailing at the time for comparable transactions with unaffiliated persons. Loan activity for officers, directors and their affiliates for the year ended December 31, 2012 is as follows:
Balance at beginning of year |
$ | 37,626 | ||
New loans |
5,283 | |||
Repayments |
(8,420 | ) | ||
Changes in affiliated persons |
(12 | ) | ||
|
|
|||
Balance at end of year |
$ | 34,477 | ||
|
|
See also Note 12.
Note 17. | Employee Benefit Plans |
The Company has a 401(k) profit sharing plan (Plan) which covers employees over the age of eighteen who have completed ninety days of credited service, as defined by the Plan. The Plan provides for before tax employee contributions through salary reduction contributions under Section 401(k) of the Internal Revenue Code. A participant may choose a salary reduction not to exceed the dollar limit set by law each year ($17 in 2012). Contributions by the Company and by participants are immediately fully vested. The Plan provides for the Company to make 401(k) matching contributions ranging from 50% to 100% depending upon the employees years of service, but limited to 6% of the participants eligible salary. The Plan also provides for the Company to make additional discretionary contributions to the Plan. The Company made contributions of approximately $435, $351 and $297 for the years ended December 31, 2012, 2011 and 2010, respectively.
Note 18. | Fair Value Measurements |
The fair value of an asset or liability is the price that would be received to sell that asset or paid to transfer that liability in an orderly transaction occurring in the principal market (or most advantageous market in the absence of a principal market) for such asset or liability. In estimating fair value, the Company utilizes valuation techniques that are consistent with the market approach, the income approach and/or the cost approach. Such valuation techniques are consistently applied. Inputs to valuation techniques include the assumptions that market participants would use in pricing an asset or liability. ASC Topic 820, Fair Value Measurements and Disclosures , establishes a fair value hierarchy for valuation inputs that gives the highest priority to quoted prices in active markets for identical assets or liabilities and the lowest priority to unobservable inputs. The fair value hierarchy is as follows:
Level 1 Inputs Unadjusted quoted prices in active markets for identical assets or liabilities that the reporting entity has the ability to access at the measurement date.
Level 2 Inputs Inputs other than quoted prices included in Level 1 that are observable for the asset or liability, either directly or indirectly. These might include quoted prices for similar assets or liabilities in active markets, quoted prices for identical or similar assets or liabilities in markets that are not active, inputs other than quoted prices that are observable for the asset or liability (such as interest rates, volatilities, prepayment speeds, credit risks, etc.) or inputs that are derived principally from or corroborated by market data by correlation or other means.
F-40
Independent Bank Group, Inc. and Subsidiaries
Notes to Consolidated Financial Statements
(Dollars in thousands, except per share information)
Level 3 Inputs Unobservable inputs for determining the fair values of assets or liabilities that reflect an entitys own assumptions about the assumptions that market participants would use in pricing the assets or liabilities.
The following table represents assets and liabilities reported on the consolidated balance sheets at their fair value on a recurring basis as of December 31, 2012, 2011 and 2010 by level within the ASC Topic 820 fair value measurement hierarchy:
Fair Value Measurements at Reporting Date Using | ||||||||||||||||
Assets/
Liabilities Measured at Fair Value |
Quoted Prices
in Active Markets for Identical Assets (Level 1) |
Significant
Other Observable Inputs (Level 2) |
Significant
Significant Unobservable Inputs (Level 3) |
|||||||||||||
December 31, 2012: |
||||||||||||||||
Measured on a recurring basis: |
||||||||||||||||
Assets: |
||||||||||||||||
Investment securities available for sale: |
||||||||||||||||
U.S. treasuries |
$ | 3, 547 | $ | | $ | 3, 547 | $ | | ||||||||
Government agency securities |
70,211 | | 70,211 | | ||||||||||||
Obligations of state and municipal subdivisions |
36,814 | | 36,814 | | ||||||||||||
Corporate bonds |
2,103 | | 2,103 | | ||||||||||||
Residential mortgage backed securities guaranteed by FNMA, GNMA, FHLMC and SBA |
680 | | 680 | | ||||||||||||
Liabilities: |
||||||||||||||||
Contingent consideration |
290 | | | 290 | ||||||||||||
December 31, 2011: |
||||||||||||||||
Measured on a recurring basis: |
||||||||||||||||
Assets: |
||||||||||||||||
Investment securities available for sale: |
||||||||||||||||
U.S. treasuries |
2,550 | | 2,550 | | ||||||||||||
Government agency securities |
65,686 | | 65,686 | | ||||||||||||
Obligations of state and municipal subdivisions |
22,325 | | 22,325 | | ||||||||||||
Residential mortgage backed securities guaranteed by FNMA, GNMA, FHLMC and SBA |
3,430 | | 3,430 | | ||||||||||||
Liabilities: |
||||||||||||||||
Contingent consideration |
821 | | | 821 | ||||||||||||
December 31, 2010: |
||||||||||||||||
Measured on a recurring basis: |
||||||||||||||||
Assets: |
||||||||||||||||
Investment securities available for sale: |
||||||||||||||||
U.S. treasuries |
1,030 | | 1,030 | | ||||||||||||
Government agency securities |
41,420 | | 41,420 | | ||||||||||||
Obligations of state and municipal subdivisions |
5,998 | | 5,998 | | ||||||||||||
Residential mortgage backed securities guaranteed by FNMA, GNMA, FHLMC and SBA |
4,163 | | 4,163 | | ||||||||||||
Liabilities: |
||||||||||||||||
Contingent consideration |
1,256 | | | 1,256 |
F-41
Independent Bank Group, Inc. and Subsidiaries
Notes to Consolidated Financial Statements
(Dollars in thousands, except per share information)
There were no transfers between Level 1 and Level 2 categorizations for the years presented.
A description of the valuation methodologies used for instruments measured at fair value, as well as the general classification of such instruments pursuant to the valuation hierarchy, is set forth below.
Securities classified as available for sale are reported at fair value utilizing Level 2 inputs. For these securities, the Company obtains fair value measurements from an independent pricing service. The fair value measurements consider observable data that may include dealer quotes, market spreads, cash flows, the U.S. Treasury and other yield curves, live trading levels, trade execution data, market consensus prepayment speeds, credit information and the securitys terms and conditions, among other things.
Contingent consideration, related to the acquisition of Town Center Bank in 2010, is reported at fair value using Level 3 inputs. The contingent consideration is remeasured on a recurring basis based on the expected present value of cash flows to be paid to the shareholders of the acquired institution using a market discount rate. The maximum amount payable at December 31, 2012 is $290.
Balance as of December 31, 2009 |
$ | | ||
Contingent consideration recorded in Town Center transaction |
1,752 | |||
Settlements |
(496 | ) | ||
|
|
|||
Balance as of December 31, 2010 |
1,256 | |||
Settlements |
(415 | ) | ||
Change in estimated payments to be made |
(20 | ) | ||
|
|
|||
Balance as of December 31, 2011 |
821 | |||
Settlements |
(395 | ) | ||
Change in estimated payments to be made |
(136 | ) | ||
|
|
|||
Balance at December 31, 2012 |
$ | 290 | ||
|
|
In accordance with ASC Topic 820, certain assets and liabilities are measured at fair value on a nonrecurring basis; that is, the assets and liabilities are not measured at fair value on an ongoing basis but are subject to fair value adjustments in certain circumstances (for example, when there is evidence of impairment).
Impaired loans (loans which are not expected to repay all principal and interest amounts due in accordance with the original contractual terms) are measured at an observable market price (if available) or at the fair value of the loans collateral (if collateral dependent). Fair value of the loans collateral is determined by appraisals or independent valuation which is then adjusted for the estimated costs related to liquidation of the collateral. Managements ongoing review of appraisal information may result in additional discounts or adjustments to valuation based upon more recent market sales activity or more current appraisal information derived from properties of similar type and/or locale. Therefore, the Company has categorized its impaired loans as Level 3.
F-42
Independent Bank Group, Inc. and Subsidiaries
Notes to Consolidated Financial Statements
(Dollars in thousands, except per share information)
The following table presents the assets carried on the consolidated balance sheet by caption and by level in the fair value hierarchy at December 31, 2012, 2011 and 2010, for which a nonrecurring change in fair value has been recorded:
Fair Value Measurements at Reporting Date Using | ||||||||||||||||||||
Assets/
Liabilities Measured at Fair Value |
Quoted Prices
in Active Markets for Identical Assets (Level 1) |
Significant
Other Observable Inputs (Level 2) |
Significant
Unobservable Inputs (Level 3) |
Period Ended
Total Losses |
||||||||||||||||
December 31, 2012: |
||||||||||||||||||||
Measured on a nonrecurring basis: |
||||||||||||||||||||
Assets: |
||||||||||||||||||||
Impaired loans |
$ | 5,146 | $ | | $ | | $ | 5,146 | $ | 187 | ||||||||||
December 31, 2011: |
||||||||||||||||||||
Measured on a nonrecurring basis: |
||||||||||||||||||||
Assets: |
||||||||||||||||||||
Impaired loans |
8,285 | | | 8,285 | 1,263 | |||||||||||||||
December 31, 2010: |
||||||||||||||||||||
Measured on a nonrecurring basis: |
||||||||||||||||||||
Assets: |
||||||||||||||||||||
Impaired loans |
7,261 | | | 7,261 | 1,290 |
The Company has no nonfinancial assets or nonfinancial liabilities measured at fair value on a recurring basis. Other real estate is measured at fair value on a nonrecurring basis (upon initial recognition or subsequent impairment). Other real estate is classified within Level 3 of the valuation hierarchy. When transferred from the loan portfolio, other real estate is adjusted to fair value less estimated selling costs and is subsequently carried at the lower of carrying value or fair value less estimated selling costs. The fair value is determined using an external appraisal process, discounted based on internal criteria.
The following table presents other real estate that was remeasured and reported at fair value:
December 31, | ||||||||||||
2012 | 2011 | 2010 | ||||||||||
Carrying value of other real estate prior to remeasurement |
$ | 2,282 | $ | 21,964 | $ | 6,227 | ||||||
Plus gain recognized at foreclosure |
| 642 | | |||||||||
Less charge-offs recognized in the allowance for loan losses at initial acquisition |
(188 | ) | (713 | ) | (924 | ) | ||||||
Less subsequent writedowns included in noninterest expense |
(94 | ) | (168 | ) | (759 | ) | ||||||
|
|
|
|
|
|
|||||||
Adjusted carrying value of remeasured other real estate |
$ | 2,000 | $ | 21,725 | $ | 4,544 | ||||||
|
|
|
|
|
|
There were no transfers into or out of Level 3 categorization for the years presented.
F-43
Independent Bank Group, Inc. and Subsidiaries
Notes to Consolidated Financial Statements
(Dollars in thousands, except per share information)
For Level 3 financial and nonfinancial assets measured at fair value on a non-recurring basis at December 31, 2012, the significant unobservable inputs used in the fair value measurements are as follows:
Assets |
Fair Value |
Valuation Technique |
Unobservable Input(s) |
Range (Weighted
Average) |
||||||
Impaired loans |
$ | 5,146 | Collateral method | Adjustments for selling costs | N/A | |||||
Other real estate |
2,000 | Collateral method | Adjustments for selling costs | N/A | ||||||
Contingent consideration |
290 | Cash flows to be paid | Expected payments | N/A |
The methods and assumptions used by the Company in estimating fair values of financial instruments as disclosed herein in accordance with ASC Topic 825, Financial Instruments , other than for those measured at fair value on a recurring and nonrecurring basis discussed above, are as follows:
Cash and cash equivalents: The carrying amounts of cash and cash equivalents approximate their fair value.
Certificates of deposit held in other banks: The carrying amount of certificates of deposit in other banks, which mature within one year, approximates fair value.
Investment securities: Fair values for securities are based on quoted market prices or other observable data that may include dealer quotes, market spreads, cash flows, the U.S. Treasury yield curve, live trading levels, trade execution data, market consensus prepayment spreads, credit information and the bonds terms and conditions, among other things.
Loans and loans held for sale: For variable-rate loans that reprice frequently and have no significant changes in credit risk, fair values are based on carrying values. Fair values for certain mortgage loans (for example, one-to-four family residential), commercial real estate and commercial loans are estimated using discounted cash flow analyses, using interest rates currently being offered for loans with similar terms to borrowers of similar credit quality.
Federal Home Loan Bank of Dallas and other restricted stock: The carrying value of restricted securities such as stock in the Federal Home Loan Bank of Dallas and Independent Bankers Financial Corporation approximates fair value.
Deposits: The fair values disclosed for demand deposits are, by definition, equal to the amount payable on demand at the reporting date (that is their carrying amounts). The carrying amounts of variable-rate certificates of deposit (CDs) approximate their fair values at the reporting date. Fair values for fixed-rate CDs are estimated using a discounted cash flow calculation that applies interest rates currently being offered on certificates to a schedule of aggregated expected monthly maturities on time deposits.
Federal Home Loan Bank advances, line of credit and federal funds purchased: The fair value of advances maturing within 90 days approximates carrying value. Fair value of other advances is based on the Companys current borrowing rate for similar arrangements.
Notes payable and other borrowings: The fair values are based upon prevailing rates on similar debt in the market place.
Junior subordinated debentures: The fair value of junior subordinated debentures is estimated using discounted cash flow analyses based on the Companys current incremental borrowing rates for similar types of borrowing arrangements.
F-44
Independent Bank Group, Inc. and Subsidiaries
Notes to Consolidated Financial Statements
(Dollars in thousands, except per share information)
Accrued interest: The carrying amounts of accrued interest approximate their fair values.
Off-balance sheet instruments: Commitments to extend credit and standby letters of credit have short maturities and therefore have no significant fair value.
The carrying amount, estimated fair value and the financial hierarchy of the Companys financial instruments were as follows at December 31, 2012, 2011 and 2010:
Fair Value Measurements at Reporting Date Using | ||||||||||||||||||||
Carrying
Amount |
Estimated
Fair Value |
Quoted Prices
in Active Markets for Identical Assets (Level 1) |
Significant
Other Observable Inputs (Level 2) |
Significant
Unobservable Inputs (Level 3) |
||||||||||||||||
December 31, 2012: |
||||||||||||||||||||
Financial assets: |
||||||||||||||||||||
Cash and cash equivalents |
$ | 102,290 | $ | 102,290 | $ | 102,290 | $ | | $ | | ||||||||||
Certificates of deposit held in other banks |
7,720 | 7,720 | | 7,720 | | |||||||||||||||
Securities available for sale |
113,355 | 113,355 | | 113,355 | | |||||||||||||||
Loans held for sale |
9,162 | 9,162 | | 9,162 | | |||||||||||||||
Loans, net |
1,358,036 | 1,420,577 | | 1,414,016 | 6,561 | |||||||||||||||
FHLB of Dallas stock and other restricted stock |
8,165 | 8,165 | | 8,165 | | |||||||||||||||
Accrued interest receivable |
4,647 | 4,647 | | 4, 647 | | |||||||||||||||
Financial liabilities: |
| |||||||||||||||||||
Deposits |
1,390,740 | 1,399,373 | | 1,399,373 | | |||||||||||||||
Accrued interest payable |
740 | 740 | | 740 | | |||||||||||||||
FHLB advances |
164,601 | 170,239 | | 170,239 | | |||||||||||||||
Notes payable |
15,729 | 15,729 | | 15,729 | | |||||||||||||||
Other borrowings |
20,788 | 20,970 | | 20,970 | | |||||||||||||||
Junior subordinated debentures |
18,147 | 18,114 | | 18,114 | | |||||||||||||||
Contingent consideration |
290 | 290 | | | 290 | |||||||||||||||
Off-balance sheet assets (liabilities): |
||||||||||||||||||||
Commitments to extend credit |
| | | | | |||||||||||||||
Standby letters of credit |
| | | | | |||||||||||||||
December 31, 2011: |
||||||||||||||||||||
Financial assets: |
||||||||||||||||||||
Cash and cash equivalents |
56,654 | 56,654 | 56,654 | | | |||||||||||||||
Securities available for sale |
93,991 | 93,991 | | 93,991 | | |||||||||||||||
Loans held for sale |
2,991 | 2,991 | | 2,991 | ||||||||||||||||
Loans, net |
976,620 | 1,006,080 | | 997,751 | 8,329 | |||||||||||||||
FHLB of Dallas stock and other restricted stock |
5,147 | 5,147 | | 5,147 | | |||||||||||||||
Accrued interest receivable |
4,027 | 4,027 | | 4,027 | | |||||||||||||||
Financial liabilities: |
||||||||||||||||||||
Deposits |
1,030,484 | 1,038,313 | | 1,038,313 | | |||||||||||||||
Accrued interest payable |
732 | 732 | | 732 | | |||||||||||||||
FHLB advances |
82,291 | 85,103 | | 85,103 | | |||||||||||||||
Notes payable |
18,692 | 18,692 | | 18,692 | | |||||||||||||||
Other borrowings |
17,103 | 18,649 | | 18,649 | | |||||||||||||||
Junior subordinated debentures |
14,538 | 14,527 | | 14,527 | | |||||||||||||||
Contingent consideration |
821 | 821 | | | 821 | |||||||||||||||
Off-balance sheet assets (liabilities): |
||||||||||||||||||||
Commitments to extend credit |
| | | | | |||||||||||||||
Standby letters of credit |
| | | | |
F-45
Independent Bank Group, Inc. and Subsidiaries
Notes to Consolidated Financial Statements
(Dollars in thousands, except per share information)
Fair Value Measurements at Reporting Date Using | ||||||||||||||||||||
Carrying
Amount |
Estimated
Fair Value |
Quoted Prices
in Active Markets for Identical Assets (Level 1) |
Significant
Other Observable Inputs (Level 2) |
Significant
Unobservable Inputs (Level 3) |
||||||||||||||||
December 31, 2010: |
||||||||||||||||||||
Financial assets: |
||||||||||||||||||||
Cash and cash equivalents |
$ | 86,346 | $ | 86,346 | $ | 86,346 | $ | | $ | | ||||||||||
Securities available for sale |
52,611 | 52,611 | | 52,611 | | |||||||||||||||
Loans held for sale |
3,301 | 3,301 | | 3,301 | | |||||||||||||||
Loans, net |
848,424 | 875,140 | | 869,388 | 5,752 | |||||||||||||||
FHLB of Dallas stock and other restricted stock |
4,017 | 4,017 | | 4,017 | | |||||||||||||||
Accrued interest receivable |
3,494 | 3,494 | | 3,494 | | |||||||||||||||
Financial liabilities: |
||||||||||||||||||||
Deposits |
927,543 | 942,288 | | 942,288 | | |||||||||||||||
Accrued interest payable |
908 | 908 | | 908 | | |||||||||||||||
FHLB advances |
55,273 | 56,322 | | 56,322 | | |||||||||||||||
Notes payable |
9,000 | 9,000 | | 9,000 | | |||||||||||||||
Other borrowings |
11,383 | 12,666 | | 12,666 | | |||||||||||||||
Junior subordinated debentures |
14,538 | 14,487 | | 14,487 | | |||||||||||||||
Contingent consideration |
1,256 | 1,256 | | | 1,256 | |||||||||||||||
Off-balance sheet assets (liabilities): |
||||||||||||||||||||
Commitments to extend credit |
| | | | | |||||||||||||||
Standby letters of credit |
| | | | |
Note 19. | Stock Awards and Stock Warrants |
The Company grants common stock awards to certain employees of the Company. The common stock vests five years from the date the award is granted and expense is recognized over the vesting period.
The following table summarizes the activity in nonvested shares for the year ended December 31, 2012:
Number of
Shares |
Weighted
Average Grant Date Price |
|||||||
Nonvested shares, December 31, 2010 |
164,358 | $ | 15.30 | |||||
Granted during the year |
17,965 | 17.19 | ||||||
Vested during the year |
(2,298 | ) | 3.75 | |||||
|
|
|||||||
Nonvested shares, December 31, 2011 |
180,025 | $ | 15.64 | |||||
Granted during the year |
58,560 | 20.31 | ||||||
Vested during the year |
(29,977 | ) | 14.76 | |||||
|
|
|||||||
Nonvested shares, December 31, 2012 |
208,608 | $ | 17.07 | |||||
|
|
Compensation expense related to these awards was $643, $572 and $597 for the years ended December 31, 2012, 2011 and 2010, respectively, and is recorded in salaries and employee benefits in the accompanying consolidated statements of income. At December 31, 2012 future compensation expense is estimated to be $1,729 and will be recognized over a remaining weighted average period of 2.19 years.
The fair value of common stock awards that vested during the years ended December 31, 2012, 2011 and 2010 was $609, $39 and $2,333, respectively.
F-46
Independent Bank Group, Inc. and Subsidiaries
Notes to Consolidated Financial Statements
(Dollars in thousands, except per share information)
At December 31, 2012, the future vesting schedule of the nonvested shares is as follows:
First year |
17,277 | |||
Second year |
103,126 | |||
Third year |
11,680 | |||
Fourth year |
17,965 | |||
Fifth year |
58,560 | |||
|
|
|||
Total nonvested shares |
208,608 | |||
|
|
Shares granted prior to 2012 were issued at the date of grant and receive dividends. Shares issued under a revised plan in 2012 are not outstanding shares of the Company until they vest and do not receive dividends.
The Company has issued warrants representing the right to purchase 150,544 shares of Company stock at $17.19 per share to certain Company directors and shareholders. The warrants were issued in return for the shareholders agreement to repurchase the subordinated debt outstanding to an unaffiliated bank in the event of Company default. The warrants expire in December 2018 and were recorded at a fair value of $475 as of the date of the warrants issuance. The Company recorded this amount as debt origination costs and is amortizing it over the term of the debt, which matures in 2016.
Note 20. | Regulatory Matters |
Under banking law, there are legal restrictions limiting the amount of dividends the Bank can declare. Approval of the regulatory authorities is required if the effect of dividends declared would cause the regulatory capital of the Bank to fall below specified minimum levels. For state banks, subject to regulatory capital requirements, payment of dividends is generally allowed to the extent of net profits.
The Company (on a consolidated basis) and the Bank are subject to various regulatory capital requirements administered by federal and state banking agencies. Failure to meet minimum capital requirements can initiate certain mandatory and possibly additional discretionary actions by regulators that, if undertaken, could have a direct material effect on the Companys consolidated financial statements. Under capital adequacy guidelines and the regulatory framework for prompt corrective action, the Company and the Bank must meet specific capital guidelines that involve quantitative measures of assets, liabilities and certain off-balance sheet items as calculated under regulatory accounting practices. The capital amounts and classification are also subject to qualitative judgments by the regulators about components, risk weightings and other factors.
Quantitative measures established by regulation to ensure capital adequacy require the Company and the Bank to maintain minimum amounts and ratios (set forth in the table below) of total and Tier I capital (as defined in the regulations) to risk weighted assets (as defined), and of Tier I capital (as defined) to average assets (as defined). Management believes, as of and December 31, 2012, 2011 and 2010, the Company and the Bank meet all capital adequacy requirements to which they are subject.
As of December 31, 2012, 2011 and 2010, the Banks capital ratios exceeded those levels necessary to be categorized as well capitalized under the regulatory framework for prompt corrective action. To be categorized as well capitalized, the Bank must maintain minimum total risk based, Tier I risk based and Tier I leverage ratios as set forth in the table. There are no conditions or events since that notification that management believes have changed the Banks category.
F-47
Independent Bank Group, Inc. and Subsidiaries
Notes to Consolidated Financial Statements
(Dollars in thousands, except per share information)
The actual capital amounts and ratios of the Company and Bank as of December 31, 2012, 2011 and 2010 are presented in the following table:
Actual |
Minimum for Capital
Adequacy Purposes |
To Be Well
Capitalized Under Prompt Corrective Action Provisions |
||||||||||||||||||||||
Amount | Ratio | Amount | Ratio | Amount | Ratio | |||||||||||||||||||
December 31, 2012: |
||||||||||||||||||||||||
Total capital to risk weighted assets: |
||||||||||||||||||||||||
Consolidated |
$ | 137,553 | 10.51 | % | $ | 104,693 | 8.00 | % | N/A | N/A | ||||||||||||||
Bank |
143,646 | 11.07 | 103,790 | 8.00 | $ | 129,738 | 10.00 | % | ||||||||||||||||
Tier I capital to risk weighted assets: |
||||||||||||||||||||||||
Consolidated |
107,567 | 8.22 | 52,346 | 4.00 | N/A | N/A | ||||||||||||||||||
Bank |
132,168 | 10.19 | 51,895 | 4.00 | 77,843 | 6.00 | ||||||||||||||||||
Tier I capital to average assets: |
||||||||||||||||||||||||
Consolidated |
107,567 | 6.45 | 66,722 | 4.00 | N/A | N/A | ||||||||||||||||||
Bank |
132,168 | 7.99 | 66,162 | 4.00 | 82,702 | 5.00 | ||||||||||||||||||
December 31, 2011: |
||||||||||||||||||||||||
Total capital to risk weighted assets: |
||||||||||||||||||||||||
Consolidated |
$ | 109,457 | 11.19 | % | $ | 78,254 | 8.00 | % | N/A | N/A | ||||||||||||||
Bank |
108,777 | 11.32 | 76,904 | 8.00 | $ | 96,131 | 10.00 | % | ||||||||||||||||
Tier I capital to risk weighted assets: |
||||||||||||||||||||||||
Consolidated |
84,049 | 8.59 | 39,127 | 4.00 | N/A | N/A | ||||||||||||||||||
Bank |
99,717 | 10.37 | 38,452 | 4.00 | 57,678 | 6.00 | ||||||||||||||||||
Tier I capital to average assets: |
||||||||||||||||||||||||
Consolidated |
84,049 | 6.89 | 48,763 | 4.00 | N/A | N/A | ||||||||||||||||||
Bank |
99,717 | 8.28 | 48,167 | 4.00 | 60,209 | 5.00 | ||||||||||||||||||
December 31, 2010: |
||||||||||||||||||||||||
Total capital to risk weighted assets: |
||||||||||||||||||||||||
Consolidated |
$ | 93,594 | 11.10 | % | $ | 67,443 | 8.00 | % | N/A | N/A | ||||||||||||||
Bank |
101,203 | 12.01 | 67,405 | 8.00 | $ | 84,257 | 10.00 | % | ||||||||||||||||
Tier I capital to risk weighted assets: |
||||||||||||||||||||||||
Consolidated |
74,825 | 8.88 | 33,721 | 4.00 | N/A | N/A | ||||||||||||||||||
Bank |
92,800 | 11.01 | 33,703 | 4.00 | 50,554 | 6.00 | ||||||||||||||||||
Tier I capital to average assets: |
||||||||||||||||||||||||
Consolidated |
74,825 | 6.98 | 42,859 | 4.00 | N/A | N/A | ||||||||||||||||||
Bank |
92,800 | 8.56 | 43,353 | 4.00 | 54,192 | 5.00 |
F-48
Independent Bank Group, Inc. and Subsidiaries
Notes to Consolidated Financial Statements
(Dollars in thousands, except per share information)
The following is a reconciliation of the consolidated equity capital under U.S. generally accepted accounting principles to Tier 1 capital and total capital at December 31, 2012, 2011 and 2010:
December 31, | ||||||||||||
2012 | 2011 | 2010 | ||||||||||
Consolidated equity capital |
$ | 124,510 | $ | 85,997 | $ | 76,044 | ||||||
Unrealized gains on securities, net |
(2,578 | ) | (2,162 | ) | (866 | ) | ||||||
Junior subordinated debentures, net |
17,600 | 14,100 | 14,100 | |||||||||
Disallowed goodwill and core deposit intangibles |
(31,965 | ) | (13,886 | ) | (14,453 | ) | ||||||
|
|
|
|
|
|
|||||||
Consolidated Tier 1 capital |
107,567 | 84,049 | 74,825 | |||||||||
Tier 2 capital-subordinated debt (limited) |
18,508 | 16,348 | 10,366 | |||||||||
Allowance for loan losses |
11,478 | 9,060 | 8,403 | |||||||||
|
|
|
|
|
|
|||||||
Consolidated total capital |
$ | 137,553 | $ | 109,457 | $ | 93,594 | ||||||
|
|
|
|
|
|
The following is a reconciliation of Bank equity capital under U.S. generally accepted accounting principles to Tier 1 capital and total capital at December 31, 2012, 2011 and 2010:
December 31, | ||||||||||||
2012 | 2011 | 2010 | ||||||||||
Bank equity capital |
$ | 166,711 | $ | 115,765 | $ | 108,119 | ||||||
Unrealized gains on securities, net |
(2,578 | ) | (2,162 | ) | (866 | ) | ||||||
Disallowed goodwill and core deposit intangibles |
(31,965 | ) | (13,886 | ) | (14,453 | ) | ||||||
|
|
|
|
|
|
|||||||
Bank Tier 1 capital |
132,168 | 99,717 | 92,800 | |||||||||
Allowance for loan losses |
11,478 | 9,060 | 8,403 | |||||||||
|
|
|
|
|
|
|||||||
Bank total capital |
$ | 143,646 | $ | 108,777 | $ | 101,203 | ||||||
|
|
|
|
|
|
Note 21. | IBG Adriatica |
In June 2011, IBG formed a wholly owned subsidiary, IBG Adriatica Holdings (Adriatica), to acquire loans from First United Bank, Durant, Oklahoma (First United Bank). The loans had an aggregate face value of $23,000 and were secured by approximately 27 acres of real property located in the Adriatica Development in McKinney, TX.
The purchase price of the loans was $16,250, of which $12,188 was financed with First United Bank. The loan is guaranteed by IBG.
Adriatica subsequently acquired the real property through a deed in lieu of foreclosure. The real property consists of a commercial office building, retail center, residential lots and a multi-story parking garage. The property was recorded at a fair value net of selling costs of $16,949 based on a current independent appraisal and a gain of $699 was recognized. In addition, Adriatica purchased a building located on the property for $442 and has capitalized improvements of $54 during the year ended December 31, 2011.
Management has engaged a project manager to oversee and market the development. Adriatica incurred expenses of approximately $447 and $303 during the years ended December 31, 2012 and 2011, respectively, to complete finish out of the garage and other maintenance to prepare the property to sell.
F-49
Independent Bank Group, Inc. and Subsidiaries
Notes to Consolidated Financial Statements
(Dollars in thousands, except per share information)
In December 2011, a tract of land adjacent to the garage and rights to parking spaces were sold to an investment partnership comprised of certain of the Companys principals, including the Chairman of the Board and the majority shareholder as well as certain other directors of the Company. Adriatica received proceeds of $1,500 for this property which was the appraised value. Adriatica recognized a gain of $115 due to minimal selling costs incurred on the sale. In December 2012, an additional tract of land and parking was sold to the same investment partnership for net proceeds of $3,443 generating a gain of $869. The investment partnership has an option to buy another 32,000 square feet of undeveloped property in the future. Management believes that these transactions have comparable terms to those that could be arranged with an independent third party.
Also during 2012, Adriatica sold two townhomes and an office building to unrelated entities and recognized a total gain of approximately $686 on these sales.
The retail center has leased space to several tenants with lease contracts expiring from 2013 through 2016. Adriatica recognized rental income of approximately $1,055, $442 and $0 during the years ended December 31, 2012, 2011 and 2010, respectively. The rental income is recorded in the statements of income as an offset to expenses from operations of IBG Adriatica. The retail leases will transfer with the property at the time the retail center is sold.
Note 22. | Business Combinations |
I Bank Acquisition
On April 1, 2012, the Company acquired 100% of the outstanding stock of I Bank Holding Company, Inc. and its wholly owned subsidiary iBank Texas with branches in Lakeway, Texas and a branch located in Georgetown, Texas.
Estimated fair values of the assets acquired and liabilities assumed in the transaction as of the closing date of the transaction was as follows:
Assets of acquired bank: |
||||
Cash and cash equivalents |
$ | 19,993 | ||
Certificates of deposit held in other banks |
17,078 | |||
Investment in restricted stock |
702 | |||
Loans |
116,948 | |||
Premises and equipment |
2,165 | |||
Other real estate owned |
416 | |||
Goodwill |
12,967 | |||
Core deposit intangible |
1,097 | |||
Other assets |
1,221 | |||
|
|
|||
Total assets |
$ | 172,587 | ||
|
|
|||
Liabilities of acquired bank: |
||||
Deposits |
$ | 122,876 | ||
FHLB advances |
12,500 | |||
Other liabilities |
211 | |||
|
|
|||
Total liabilities |
$ | 135,587 | ||
|
|
|||
Cash paid in I Bank Holding Company, Inc. transaction |
$ | 37,000 | ||
|
|
F-50
Independent Bank Group, Inc. and Subsidiaries
Notes to Consolidated Financial Statements
(Dollars in thousands, except per share information)
Non-credit impaired loans had a fair value of $113,531 at the date of acquisition and contractual balances of $113,723. The difference of $192 will be recognized into interest income as an adjustment to yield over the life of the loans.
The Company recognized goodwill of $12,967 which is calculated as the excess of both the consideration exchanged and liabilities assumed compared to the fair market value of identifiable assets acquired. Goodwill resulted from a combination of expected synergies, expansion of Austin market area and growth opportunities. Goodwill is not expected to be deducted for tax purposes.
The Company had incurred expenses related to the acquisition of approximately $705 during the year ended December 31, 2012, which is included in acquisition expense.
Pro forma net income for the years ended December 31, 2012 and 2011 would have been $18,308 and $17,321, respectively, and revenues would have been $82,966 and $75,669 for the same years, respectively, had the acquisition occurred as of January 1, 2011. The operations of iBank were merged into Independent Bank as of the date of the acquisition. Separate revenue and earnings of the former iBank are not available subsequent to the business combination.
Community Group Acquisition
On October 1, 2012, the Company completed an acquisition of The Community Group, Inc. (CGI) and its wholly owned subsidiary United Community Bank. The Company issued 182,221 shares of Company common stock plus $9.6 million in cash for all outstanding shares of CGI. The Companys stock was valued at $20.31 per share which was based on the most recent selling price of the Companys stock to third party investors.
The Company recognized goodwill of $4,779 which is calculated as the excess of both the consideration exchanged and liabilities assumed compared to the fair market value of identifiable assets acquired. Goodwill resulted from a combination of expected synergies, desirable branch locations and growth opportunities. Goodwill is not expected to be deducted for tax purposes.
The Company had incurred expenses related to the acquisition of approximately $696 during 2012, which is included in acquisition expense. The results of operations for the Company would not have been materially different had the acquisition occurred as of January 1, 2011. Therefore, pro forma information has not been disclosed.
F-51
Independent Bank Group, Inc. and Subsidiaries
Notes to Consolidated Financial Statements
(Dollars in thousands, except per share information)
Estimated fair values of the assets acquired and liabilities assumed in the transaction as of the closing dates of the transaction was as follows:
Assets of acquired bank: |
||||
Cash and cash equivalents |
$ | 26,237 | ||
Securities available for sale |
10,314 | |||
Loans |
63,500 | |||
Premises and equipment |
3,530 | |||
Other real estate |
1,157 | |||
Investment in FHLB stock and other restricted stock |
715 | |||
Goodwill |
4,779 | |||
Core deposit intangible |
265 | |||
Other assets |
470 | |||
|
|
|||
Total assets |
$ | 110,967 | ||
|
|
|||
Liabilities of acquired bank: |
||||
Deposits |
$ | 93,568 | ||
Junior subordinated debentures |
3,609 | |||
Other liabilities |
489 | |||
|
|
|||
Total liabilities |
$ | 97,666 | ||
|
|
|||
Common stock issued in The Community Group, Inc. transaction |
$ | 3,701 | ||
|
|
|||
Cash paid in The Community Group, Inc. transaction |
$ | 9,600 | ||
|
|
Non-credit impaired loans had a fair value of $58,694 at the date of acquisition and contractual balances of $59,106.The difference of $412 will be recognized into interest income as an adjustment to yield over the life of the loans.
Farmersville and Town Bank Acquisitions
On July 31, 2010, and September 30, 2010 the Company acquired certain assets and assumed certain deposits and liabilities of Town Center Bank and Farmersville Bancshares, Inc., respectively. The Company recorded a liability of $1,752 for contingent consideration expected to be paid to the former owners of Town Center Bank. The contingent consideration is based on performance of the acquired loan portfolio of Town Center Bank and will be resolved three years from the date of the business combination. The maximum amount payable at July 31, 2010 was $1,752.
The Company issued 192,688 shares of Company stock for all outstanding shares of Farmersville Bancshares, Inc. The Companys stock was valued at $17.19 per share which was based on the most recent selling price of the Companys stock to third party investors.
The purchase accounting for these transactions resulted in a bargain purchase gain of $6,692 which arose primarily due to the previous owners of the acquired banks being compelled to sell for regulatory reasons. In addition, the valuation of property acquired in connection with the transaction was significantly higher than anticipated at the date the terms of the acquisitions were negotiated.
F-52
Independent Bank Group, Inc. and Subsidiaries
Notes to Consolidated Financial Statements
(Dollars in thousands, except per share information)
During 2010, the Company recorded $668 in expenses related to the business combinations that is included in acquisition expense in the accompanying consolidated statements of income.
These acquisitions established Independent Banks presence and locations in northwest Dallas County and Denton County, Texas and extended its presence in eastern Collin County, Texas.
Estimated fair values of the assets acquired and liabilities assumed in the transactions as of the closing dates of the transactions were as follows:
Assets of acquired banks: |
||||
Cash and cash equivalents |
$ | 21,039 | ||
Federal funds sold |
16,780 | |||
Securities available for sale |
9,937 | |||
Investment in restricted stock |
204 | |||
Loans |
67,505 | |||
Premises and equipment |
14,541 | |||
Other real estate owned |
4,553 | |||
Core deposit intangible |
1,748 | |||
Other assets |
564 | |||
|
|
|||
Total assets |
$ | 136,871 | ||
|
|
|||
Liabilities of acquired banks: |
||||
Deposits |
$ | 120,431 | ||
Subordinated debt assumed in Farmersville transaction |
2,285 | |||
Other borrowings |
1,350 | |||
Accrued expenses and other liabilities |
949 | |||
|
|
|||
Total liabilities |
$ | 125,015 | ||
|
|
|||
Common stock issued in Farmersville transaction |
$ | 3,311 | ||
|
|
|||
Cash paid in Farmersville transaction |
$ | 101 | ||
|
|
|||
Contingent consideration recorded in Town Center transaction |
$ | 1,752 | ||
|
|
|||
Bargain purchase gain recorded on acquisitions |
$ | 6,692 | ||
|
|
Note 23. | Sale of Branch |
During September 2012, the Company sold its Coupland, Texas branch, including loans, deposits, related accrued interest and property and equipment to an unaffiliated institution. As a result of this branch sale, the Company transferred deposits of $20,074, including accrued interest, for a deposit premium of $414. The assets were sold for current recorded value of $1,233. The Company reduced goodwill and core deposit intangibles associated with this branch by $254 and $119, respectively, and recognized a gain of $38 on the sale.
F-53
Independent Bank Group, Inc. and Subsidiaries
Notes to Consolidated Financial Statements
(Dollars in thousands, except per share information)
Note 24. | Subsequent Events Stock Offering and Stock Split |
IBG qualifies as an emerging growth company as defined by the Jumpstart Our Business Startups Act of 2012 (JOBS Act). In October 2012, the Board of Directors of the Company approved a resolution for IBG to sell shares of common stock to the public in an initial public offering. On December 28, 2012 the Company submitted a confidential draft Registration Statement on Form S-1 with the SEC with respect to the shares to be registered and sold. On February 27, 2013, the Company filed a public Registration Statement on Form S-1 with the SEC.
In connection with the initial public offering, on February 22, 2013 the Company amended its certificate of incorporation to affect a 3.2-for-one stock split of its common stock and change the its par value of common stock from $1 to $.01. All previously reported share amounts have been retrospectively restated to give effect to the stock split and the common stock account has been reallocated to additional paid in capital to reflect the new par value.
Deferred transaction costs of $603 associated with the offering of common stock are recorded in other assets as of December 31, 2012. Transaction costs will be recognized as a reduction to the proceeds of the stock offering.
F-54
Independent Bank Group, Inc. and Subsidiaries
Notes to Consolidated Financial Statements
(Dollars in thousands, except per share information)
Note 25. | Parent Company Only Financial Statements |
The following balance sheets, statements of income and statements of cash flows for Independent Bank Group, Inc. should be reread in conjunction with the consolidated financial statements and the notes thereto.
Balance Sheets
December 31, | ||||||||||||
Assets |
2012 | 2011 | 2010 | |||||||||
Cash and cash equivalents |
$ | 1,396 | $ | 4,375 | $ | 2,713 | ||||||
Investment in subsidiaries |
173,724 | 120,711 | 108,119 | |||||||||
Investment in Trusts |
547 | 438 | 438 | |||||||||
Other assets |
987 | 325 | 34 | |||||||||
|
|
|
|
|
|
|||||||
Total assets |
$ | 176,654 | $ | 125,849 | $ | 111,304 | ||||||
|
|
|
|
|
|
|||||||
Liabilities and Stockholders Equity |
||||||||||||
Notes payable |
$ | 12,250 | $ | 7,500 | $ | 9,000 | ||||||
Other borrowings |
20,788 | 17,103 | 11,383 | |||||||||
Junior subordinated debentures |
18,147 | 14,538 | 14,538 | |||||||||
Other liabilities |
959 | 711 | 339 | |||||||||
|
|
|
|
|
|
|||||||
Total liabilities |
52,144 | 39,852 | 35,260 | |||||||||
|
|
|
|
|
|
|||||||
Stockholders equity: |
||||||||||||
Common stock |
83 | 69 | 69 | |||||||||
Additional paid-in capital |
88,791 | 59,196 | 58,149 | |||||||||
Retained earnings |
33,290 | 24,594 | 16,984 | |||||||||
Treasury stock |
(232 | ) | (24 | ) | (24 | ) | ||||||
Accumulated other comprehensive income |
2,578 | 2,162 | 866 | |||||||||
|
|
|
|
|
|
|||||||
Total stockholders equity |
124,510 | 85,997 | 76,044 | |||||||||
|
|
|
|
|
|
|||||||
Total liabilities and stockholders equity |
$ | 176,654 | $ | 125,849 | $ | 111,304 | ||||||
|
|
|
|
|
|
F-55
Independent Bank Group, Inc. and Subsidiaries
Notes to Consolidated Financial Statements
(Dollars in thousands, except per share information)
Statements of Income
Years Ended December 31, | ||||||||||||
2012 | 2011 | 2010 | ||||||||||
Interest expense: |
||||||||||||
Interest on notes payable and other borrowings |
$ | 1,720 | $ | 1,270 | $ | 981 | ||||||
Interest on junior subordinated debentures |
531 | 480 | 484 | |||||||||
|
|
|
|
|
|
|||||||
Total interest expense |
2,251 | 1,750 | 1,465 | |||||||||
|
|
|
|
|
|
|||||||
Noninterest income: |
||||||||||||
Dividends from subsidiaries |
25,634 | 10,690 | 7,584 | |||||||||
Other |
24 | 33 | 15 | |||||||||
|
|
|
|
|
|
|||||||
25,658 | 10,723 | 7,599 | ||||||||||
Noninterest expense: |
||||||||||||
Salaries and employee benefits |
1,163 | 1,028 | 1,041 | |||||||||
Professional fees |
| 168 | 54 | |||||||||
Acquisition expense, including legal |
1,401 | | 668 | |||||||||
Other |
36 | 155 | 57 | |||||||||
|
|
|
|
|
|
|||||||
Total noninterest expense |
2,600 | 1,351 | 1,820 | |||||||||
|
|
|
|
|
|
|||||||
Net income before equity in undistributed income of subsidiaries |
20,807 | 7,622 | 4,314 | |||||||||
Equity in undistributed (loss) income of subsidiaries |
(3,430 | ) | 6,078 | 8,802 | ||||||||
|
|
|
|
|
|
|||||||
Net income |
$ | 17,377 | $ | 13,700 | $ | 13,116 | ||||||
|
|
|
|
|
|
F-56
Independent Bank Group, Inc. and Subsidiaries
Notes to Consolidated Financial Statements
(Dollars in thousands, except per share information)
Statements of Cash Flows
Years Ended December 31, | ||||||||||||
2012 | 2011 | 2010 | ||||||||||
Cash flows from operating activities: |
||||||||||||
Net income |
$ | 17,377 | $ | 13,700 | $ | 13,116 | ||||||
Adjustments to reconcile net income to net cash provided by operating activities: |
||||||||||||
Equity in undistributed net loss (income) of subsidiaries |
3,430 | (6,078 | ) | (8,802 | ) | |||||||
Stock grants amortized |
643 | 572 | 597 | |||||||||
Net change in other assets |
(523 | ) | 184 | 5 | ||||||||
Net change in other liabilities |
9 | 372 | (272 | ) | ||||||||
|
|
|
|
|
|
|||||||
Net cash provided by operating activities |
20,936 | 8,750 | 4,644 | |||||||||
|
|
|
|
|
|
|||||||
Cash flows from investing activities: |
||||||||||||
Capital investment in subsidiaries |
(2,050 | ) | (5,215 | ) | | |||||||
Cash received from acquired company |
39 | | | |||||||||
Cash paid in acquisitions |
(46,600 | ) | | (361 | ) | |||||||
|
|
|
|
|
|
|||||||
Net cash used in investing activities |
(48,611 | ) | (5,215 | ) | (361 | ) | ||||||
|
|
|
|
|
|
|||||||
Cash flows from financing activities: |
||||||||||||
Repayments of other borrowings |
(3,245 | ) | (3,513 | ) | (2,072 | ) | ||||||
Proceeds from other borrowings |
11,680 | 7,730 | | |||||||||
Treasury stock purchased |
(208 | ) | | (1 | ) | |||||||
Proceeds from issuance of common stock |
25,150 | | | |||||||||
Dividends paid |
(8,681 | ) | (6,090 | ) | (4,244 | ) | ||||||
|
|
|
|
|
|
|||||||
Net cash provided by (used in) financing activities |
24,696 | (1,873 | ) | (6,317 | ) | |||||||
|
|
|
|
|
|
|||||||
Net change in cash and cash equivalents |
(2, 979 | ) | 1,662 | (2,034 | ) | |||||||
Cash and cash equivalents at beginning of year |
4,375 | 2,713 | 4,747 | |||||||||
|
|
|
|
|
|
|||||||
Cash and cash equivalents at end of year |
$ | 1,396 | $ | 4,375 | $ | 2,713 | ||||||
|
|
|
|
|
|
F-57
Shares
Common Stock
PROSPECTUS
S ANDLER O NEILL + P ARTNERS , L. P. |
E VERCORE P ARTNERS |
Keefe, Bruyette & Woods A Stifel Company |
The date of this prospectus is , 2013
Until , 2013, all dealers that effect transactions in our common stock, whether or not participating in this offering, may be required to deliver a prospectus. This is in addition to the dealers obligation to deliver a prospectus when acting as underwriters and with respect to any unsold allotments or subscriptions.
PART IIINFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. | OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION. |
The following table sets forth all costs and expenses, other than underwriting discounts and commissions, in connection with the sale of shares of our common stock being registered, all of which will be paid by us. All amounts shown are estimates, except for the SEC registration fee, the FINRA filing fee and the NASDAQ Stock Market listing fee.
Expense Category |
Amount | |||
SEC registration fee |
$ | 12,549 | ||
FINRA filing fee |
14,300 | |||
NASDAQ Stock Market listing fee |
25,000 | |||
Legal fees and expenses |
* | |||
Accounting fees and expenses |
* | |||
Printing fees and expenses |
* | |||
Transfer agent and registrar fees and expenses |
6,000 | |||
Blue sky qualification fees and expenses |
* | |||
Miscellaneous |
* | |||
|
|
|||
Total |
$ | * | ||
|
|
* | To be completed by amendment. |
ITEM 14. | INDEMNIFICATION OF DIRECTORS AND OFFICERS. |
Article VI of the Companys certificate of formation and Article VI of the Companys bylaws provide that the Company shall indemnify any person made a party to or involved in any threatened, pending or completed action, suit or proceeding (whether civil, criminal, administrative or investigative) by reason of the fact that such person is or was a director or officer of the Company or is or was serving at the request of the Company as a director or officer of another foreign or domestic association, corporation, partnership, joint venture, trust or other entity, or employee benefit plan (whether such action, suit or proceeding is based in whole or in part on the sole or contributory gross or ordinary negligence of such person or otherwise).
Article VII of the Companys certificate of formation provides that a director of the Company shall not be liable to the Company or its shareholders for monetary damages for an act or omission in the directors capacity as a director, subject to certain limitations.
In Article VI of the Companys certificate of formation and Article VI of the Companys bylaws, the Company makes mandatory for directors and officers the indemnification provided for in Section 8.101 of the Texas Business Organizations Code, which provides that, subject to certain limitations, a corporation may indemnify a governing person, former governing person, or delegate who was, is, or is threatened to be made a respondent in a proceeding to the extent permitted by Section 8.102 of the Texas Business Organizations Code if it is determined in accordance with Section 8.103 of the Texas Business Organizations Code that:
(1) | the person: |
(A) | acted in good faith; |
(B) | reasonably believed: |
(i) | in the case of conduct in the persons official capacity, that the persons conduct was in the corporations best interests; and |
(ii) | in any other case, that the persons conduct was not opposed to the corporations best interests; and |
(C) | in the case of a criminal proceeding, did not have a reasonable cause to believe the persons conduct was unlawful. |
(2) | with respect to expenses, the amount of expenses other than a judgment is reasonable; and |
(3) | indemnification should be paid. |
II-1
The Company has entered into indemnification agreements with the members of its board of directors (each an indemnitee). Each indemnification agreement requires the Company to indemnify each indemnitee to the fullest extent permitted by the Texas Business Organizations Code and any successor statute thereto when such successor statute becomes applicable to the Company. The Company will also, among other things, make the indemnitee whole for costs in any action to establish indemnitees right to indemnification, whether or not wholly successful.
The Company also maintains directors and officers liability insurance.
The form of Underwriting Agreement to be filed as Exhibit 1.1 hereto obligates the underwriters to indemnify our directors, officers and controlling persons under certain circumstances against certain liabilities under the Securities Act.
ITEM 15. | RECENT SALES OF UNREGISTERED SECURITIES. |
The following sets forth information regarding unregistered securities that were sold by the Registrant within the past three years, which information has not been adjusted to give effect to the Companys 3.2-for-one stock split effective February 22, 2013.
1. | During 2010 and 2011, we made restricted stock grants to our and our subsidiaries employees and officers of an aggregate of 9,264 shares of our common stock under written compensation contracts, each share being granted at a fair market value of $55.00 per share. Such shares of common stock are subject to vesting requirements, forfeiture by the recipient of such grant or repurchase by us upon the occurrence of certain events. |
2. | During 2012, we have made restricted stock grants to our and our subsidiaries employees and officers of an aggregate of 18,300 shares of our common stock under our under our 2012 Stock Grant Plan, each share being granted at a fair market value of $65.00 per share. Such shares of common stock are subject to vesting requirements, forfeiture by the recipient of such grant or repurchase by us upon the occurrence of certain events. |
3. | On September 30, 2010, we issued an aggregate of 60,215 shares of our common stock to certain accredited shareholders of Farmersville Bancshares, Inc. in connection with our acquisition of such entity. The shares issued as merger consideration were valued at $55.00 per share for an aggregate merger consideration of $3,311,825. |
4. | On June 30, 2011, we issued an aggregate of $5,000,000 of our 7% Fixed Subordinated Debentures to accredited investors. |
5. | On September 30, 2011, we issued an aggregate of $2,730,000 of our 7% Fixed Subordinated Debentures to accredited investors. |
6. | On January 24, 2012, we issued an aggregate of 310,000 shares of our common stock to existing shareholders and accredited investors at a price of $65.00 per share for an aggregate consideration of $20,150,000. |
7. | On September 30, 2012, we issued an aggregate of $4,680,200 of our 7% Fixed Subordinated Debentures, and an aggregate of 76,925 shares of our common stock to existing shareholders and accredited investors. The shares of our common stock were issued at a price of $65.00 per share for an aggregate consideration of $5,000,125. |
8. | On October 1, 2012, we issued an aggregate of 56,944 shares of our common stock to certain accredited investors who were shareholders of The Community Group, Inc. in connection with our acquisition of such entity. Such shares issued as merger consideration were valued at $65.00 per share for an aggregate merger consideration of $3,701,360. |
II-2
The stock grants and private placements of our common stock and 7% Debentures, each as described above, were deemed exempt from registration under Section 4(2) or its successor 4(a)(2) of the Securities Act, and in certain circumstances, in reliance on Rule 701 promulgated under the Securities Act as transactions pursuant to compensatory benefit plans and contracts relating to compensation. All of the foregoing securities are deemed restricted securities for purposes of the Securities Act. The recipients of securities in the transactions exempt under Section 4(2) or its successor 4(a)(2) of the Securities Act represented their intention to acquire the securities for investment purposes only and not with a view to or for sale in connection with any distribution thereof and appropriate legends were affixed to the stock certificates and instruments issued in such transactions.
II-3
ITEM 16. | EXHIBITS AND FINANCIAL STATEMENT SCHEDULES. |
(a) | Exhibits |
Exhibit
|
Description |
|
1.1 | Form of Underwriting Agreement.** | |
3.1 | Amended and Restated Certificate of Formation of Independent Bank Group, Inc.* | |
3.2 | Amended and Restated Bylaws of Independent Bank Group, Inc.* | |
4.1 | Specimen common stock certificate of Independent Bank Group, Inc.** | |
4.2 | Form of Common Stock Purchase Warrant, with schedule of differences.* | |
The other instruments defining the rights of holders of the long-term debt securities of the Registrant and its subsidiaries are omitted pursuant to section (b)(4)(iii)(A) of Item 601 of Regulation S-K. The Registrant hereby agrees to furnish copies of these instruments to the Securities and Exchange Commission upon request. | ||
5.1 | Form of Opinion of Andrews Kurth LLP.* | |
10.1 | Loan and Subordinated Debenture Purchase Agreement, dated December 23, 2008, between Independent Bank Group, Inc. and TIB - The Independent BankersBank.* | |
10.2 | Term Promissory Note, dated December 24, 2008, by Independent Bank Group, Inc. payable to TIB The Independent BankersBank in the original principal amount of $12,000,000.* | |
10.3 | Subordinated Debenture, dated December 24, 2008, by Independent Bank Group, Inc. payable to TIB The Independent BankersBank in the original principal amount of $4,500,000.* | |
10.4 | Pledge and Security Agreement, dated December 24, 2008, between Independent Bank Group, Inc. and TIB The Independent BankersBank.* | |
10.5 | Letter Loan Agreement, dated March 15, 2012, between Independent Bank Group, Inc. and TIB The Independent BankersBank.* | |
10.6 | Promissory Note, dated March 15, 2012, by Independent Bank Group, Inc. payable to TIB The Independent BankersBank in the original principal amount of $7,000,000.* | |
10.7 | Pledge Agreement, dated March 15, 2012, between Independent Bank Group, Inc. and TIB The Independent BankersBank.* | |
10.8 | Loan Agreement, dated June 28, 2011, between IBG Adriatica Holdings, Inc. and First United Bank and Trust Company.* | |
10.9 | Commercial Promissory Note, dated June 28, 2011, by IBG Adriatica Holdings, Inc. payable to First United Bank and Trust Company in the original principal amount of $12,187,500.* | |
10.10 | Security Agreement, dated June 28, 2011, between IBG Adriatica Holdings, Inc. and First United Bank and Trust Company.* | |
10.11 | Commercial Deed of Trust, Security Agreement, Financing Statement and Assignment of Rents, dated June 28, 2011, by IBG Adriatica Holdings, Inc. for the benefit of First United Bank and Trust Company.* | |
10.12 | Commercial Guaranty Agreement, dated June 28, 2011, by Independent Bank Group, Inc. in favor of First United Bank and Trust Company.* | |
10.13 | Loan Purchase and Sale Agreement between IBG Adriatica Holdings, Inc., as assignee of Independent Bank Group, Inc., and First United Bank and Trust Company, as amended.* | |
10.14 | Real Estate Acquisition and Option Agreement, dated the December 22, 2011, between IBG Adriatica Holdings, Inc. and Himalayan Ventures, L.P.* | |
10.15 | Real Estate Acquisition Agreement, dated November 15, 2012, between IBG Adriatica Holdings, Inc. and Himalayan St. Pauls Square Holdings, LLC.* | |
10.16 | Form of Indemnification Agreement for directors and officers.* | |
10.17 | Form of S-Corporation Revocation, Tax Allocation and Indemnification Agreement.* |
II-4
Exhibit
|
Description |
|
10.18 | 2005 Stock Grant Plan, with form of Notice of Grant Letter Agreement, as amended, and related Form of Notice of Grant Letter Agreement relating to the written compensation contracts.* | |
10.19 | 2012 Stock Grant Plan, with form of Notice of Grant Letter Agreement.* | |
10.20 | 2013 Equity Incentive Plan, with form of Restricted Stock Agreement.* | |
10.21 | Agreement and Plan of Reorganization, dated December 22, 2011, between Independent Bank Group, Inc. and I Bank Holding Company, Inc.* | |
10.22 | Agreement and Plan of Reorganization, dated July 2, 2012, between Independent Bank Group, Inc. and The Community Group, Inc.* | |
10.23 | Purchase and Assumption Agreement, dated January 13, 2009, between Independent Bank and First State Bank.* | |
10.24 | Purchase and Assumption Agreement, dated June 29, 2012, between Independent Bank and Citizens National Bank.* | |
21.1 | Subsidiaries of Independent Bank Group, Inc.* | |
23.1 | Consent of McGladrey LLP with respect to the consolidated balance sheets of Independent Bank Group, Inc. and subsidiaries as of December 31, 2012, 2011 and 2010, and the related consolidated statements of income, comprehensive income, changes in stockholders equity and cash flows for each of the years in the three-year period ended December 31, 2012.* | |
23.3 | Form of Consent of Andrews Kurth LLP (to be included as part of Exhibit 5.1).* | |
24.1 | Power of Attorney (included in the signature page to the Registration Statement filed on February 27, 2013). |
* | Filed herewith. |
** | To be filed by amendment. |
ITEM 17. | UNDERTAKINGS. |
The undersigned registrant hereby undertakes to provide to the underwriters at the closing specified in the underwriting agreement certificates in such denominations and registered in such names as required by the underwriters to permit prompt delivery to each purchaser.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the indemnification provisions described herein, or otherwise, the registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act, the information omitted from the form of prospectus as filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
II-5
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the city of McKinney, Texas, on February 27, 2013.
INDEPENDENT BANK GROUP, INC. | ||
By: |
/s/ David R. Brooks |
|
David R. Brooks | ||
Chairman and Chief Executive Officer |
Power of Attorney
Pursuant to the requirements of the Securities Act, this Registration Statement has been signed by the following persons in their respective capacities and on the respective dates indicated opposite their names. Each person whose signature appears below hereby authorizes each of David R. Brooks, Torry Berntsen, and Daniel W. Brooks, with full power of substitution, to execute in the name and on behalf of such person any post-effective amendment to this Registration Statement and to file the same, with exhibits thereto, and other documents in connection therewith, making such changes in this Registration Statement as the registrant deems appropriate, and appoints David R. Brooks, Daniel W. Brooks and Torry Berntsen with full power of substitution, attorney-in-fact to sign any and all amendments (including post-effective amendments and any related registration statement pursuant to Rule 462(b) under the Securities Act) hereto to this Registration Statement and to file the same, with exhibits thereto, and other documents in connection therewith and we do hereby ratify and confirm that said attorney and agent shall do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed below by the following persons in the capacities and on the dates indicated.
Signature |
Title |
Date |
||||
/s/ David R. Brooks |
Chairman, Chief Executive Officer and Director (Principal Executive Officer) |
February 27, 2013 | ||||
David R. Brooks |
||||||
/s/ Michelle S. Hickox |
Executive Vice President and Chief Financial Officer (Principal Financial and Principal Accounting Officer) | February 27, 2013 | ||||
Michelle S. Hickox |
||||||
/s/ Torry Berntsen |
Vice Chairman of Corporate Development and Director |
February 27, 2013 | ||||
Torry Berntsen |
||||||
/s/ Daniel W. Brooks |
Vice Chairman and Director |
February 27, 2013 | ||||
Daniel W. Brooks |
||||||
/s/ M. Brian Aynesworth |
Director |
February 27, 2013 | ||||
M. Brian Aynesworth |
||||||
/s/ Douglas A. Cifu |
Director |
February 27, 2013 | ||||
Douglas A. Cifu |
II-6
Signature |
Title |
Date |
||||
/s/ William E. Fair |
Director |
February 27, 2013 | ||||
William E. Fair |
||||||
/s/ Craig E. Holmes |
Director |
February 27, 2013 | ||||
Craig E. Holmes |
||||||
/s/ Jack M. Radke |
Director |
February 27, 2013 | ||||
Jack M. Radke |
||||||
/s/ G. Stacy Smith |
Director |
February 27, 2013 | ||||
G. Stacy Smith |
||||||
/s/ Michael T. Viola |
Director |
February 27, 2013 | ||||
Michael T. Viola |
II-7
EXHIBIT INDEX
Exhibit
|
Description |
|
1.1 | Form of Underwriting Agreement.** | |
3.1 | Amended and Restated Certificate of Formation of Independent Bank Group, Inc.* | |
3.2 | Amended and Restated Bylaws of Independent Bank Group, Inc.* | |
4.1 | Specimen common stock certificate of Independent Bank Group, Inc.** | |
4.2 | Form of Common Stock Purchase Warrant, with schedule of differences.* | |
The other instruments defining the rights of holders of the long-term debt securities of the Registrant and its subsidiaries are omitted pursuant to section (b)(4)(iii)(A) of Item 601 of Regulation S-K. The Registrant hereby agrees to furnish copies of these instruments to the Securities and Exchange Commission upon request. | ||
5.1 | Form of Opinion of Andrews Kurth LLP.* | |
10.1 | Loan and Subordinated Debenture Purchase Agreement, dated December 23, 2008, between Independent Bank Group, Inc. and TIB - The Independent BankersBank.* | |
10.2 | Term Promissory Note, dated December 24, 2008, by Independent Bank Group, Inc. payable to TIB The Independent BankersBank in the original principal amount of $12,000,000.* | |
10.3 | Subordinated Debenture, dated December 24, 2008, by Independent Bank Group, Inc. payable to TIB The Independent BankersBank in the original principal amount of $4,500,000.* | |
10.4 | Pledge and Security Agreement, dated December 24, 2008, between Independent Bank Group, Inc. and TIB The Independent BankersBank.* | |
10.5 | Letter Loan Agreement, dated March 15, 2012, between Independent Bank Group, Inc. and TIB The Independent BankersBank.* | |
10.6 | Promissory Note, dated March 15, 2012, by Independent Bank Group, Inc. payable to TIB The Independent BankersBank in the original principal amount of $7,000,000.* | |
10.7 | Pledge Agreement, dated March 15, 2012, between Independent Bank Group, Inc. and TIB The Independent BankersBank.* | |
10.8 | Loan Agreement, dated June 28, 2011, between IBG Adriatica Holdings, Inc. and First United Bank and Trust Company.* | |
10.9 | Commercial Promissory Note, dated June 28, 2011, by IBG Adriatica Holdings, Inc. payable to First United Bank and Trust Company in the original principal amount of $12,187,500.* | |
10.10 | Security Agreement, dated June 28, 2011, between IBG Adriatica Holdings, Inc. and First United Bank and Trust Company.* | |
10.11 | Commercial Deed of Trust, Security Agreement, Financing Statement and Assignment of Rents, dated June 28, 2011, by IBG Adriatica Holdings, Inc. for the benefit of First United Bank and Trust Company.* | |
10.12 | Commercial Guaranty Agreement, dated June 28, 2011, by Independent Bank Group, Inc. in favor of First United Bank and Trust Company.* | |
10.13 | Loan Purchase and Sale Agreement between IBG Adriatica Holdings, Inc., as assignee of Independent Bank Group, Inc., and First United Bank and Trust Company, as amended.* | |
10.14 | Real Estate Acquisition and Option Agreement, dated the December 22, 2011, between IBG Adriatica Holdings, Inc. and Himalayan Ventures, L.P.* | |
10.15 | Real Estate Acquisition Agreement, dated November 15, 2012, between IBG Adriatica Holdings, Inc. and Himalayan St. Pauls Square Holdings, LLC.* |
Exhibit
|
Description |
|
10.16 | Form of Indemnification Agreement for directors and officers.* | |
10.17 | Form of S-Corporation Revocation, Tax Allocation and Indemnification Agreement.* | |
10.18 | 2005 Stock Grant Plan, with form of Notice of Grant Letter Agreement, as amended, and related Form of Notice of Grant Letter Agreement, relating to the written compensation contracts.* | |
10.19 | 2012 Stock Grant Plan, with form of Notice of Grant Letter Agreement.* | |
10.20 | 2013 Equity Incentive Plan, with form of Restricted Stock Agreement.* | |
10.21 | Agreement and Plan of Reorganization, dated December 22, 2011, between Independent Bank Group, Inc. and I Bank Holding Company, Inc.* | |
10.22 | Agreement and Plan of Reorganization, dated July 2, 2012, between Independent Bank Group, Inc. and The Community Group, Inc.* | |
10.23 | Purchase and Assumption Agreement, dated January 13, 2009, between Independent Bank and First State Bank.* | |
10.24 | Purchase and Assumption Agreement, dated June 29, 2012, between Independent Bank and Citizens National Bank.* | |
21.1 | Subsidiaries of Independent Bank Group, Inc.* | |
23.1 | Consent of McGladrey LLP with respect to the consolidated balance sheets of Independent Bank Group, Inc. and subsidiaries as of December 31, 2012, 2011 and 2010, and the related consolidated statements of income, comprehensive income, changes in stockholders equity and cash flows for each of the years in the three-year period ended December 31, 2012.* | |
23.3 | Form of Consent of Andrews Kurth LLP (to be included as part of Exhibit 5.1).* | |
24.1 | Power of Attorney (included in the signature page to the Registration Statement filed on February 27, 2013). |
* | Filed herewith. |
** | To be filed by amendment. |
Exhibit 3.1
AMENDED AND RESTATED
CERTIFICATE OF FORMATION OF
INDEPENDENT BANK GROUP, INC.
Pursuant to the provisions of Section 3.051 and Section 3.057 of the Texas Business Organizations Code (the TBOC), Independent Bank Group, Inc. (the Corporation) hereby adopts the following Amended and Restated Certificate of Formation (the Amended and Restated Certificate), which accurately states the text of the Corporations original Articles of Incorporation and all amendments thereto that are in effect to date (as previously amended, the Original Articles) and as further amended by this Amended and Restated Certificate as hereinafter set forth and which contains no other change in any provision thereof.
ARTICLE ONE
The name of the Corporation is Independent Bank Group, Inc. The file number issued to the Corporation by the Secretary of State is 800125042. The date of formation of the Corporation was September 20, 2002.
ARTICLE TWO
The Original Articles are further amended by this Amended and Restated Certificate to, among other things, (i) increase the number of shares of capital stock authorized for issuance by the Corporation and decrease the par value of such capital stock; (ii) include a provision for the issuance of preferred stock (the Preferred Stock) and authorize the Board of Directors of the Corporation (the Board of Directors) to designate the terms of one or more classes or series of Preferred Stock prior to such issuances; (iii) include specific provisions stating that the shareholders of the Corporation shall not have preemptive rights or the ability to cumulate votes in the election of directors; (iv) modify Article VI of the Original Articles with respect to related party transactions to conform to the TBOC; (v) modify Article VII of the Original Articles to amend the indemnification obligations of the Corporation; (vi) modify Article VIII of the Original Articles with respect to the limitation of liability of directors of the Corporation to conform to the TBOC; (vii) include a provision specifying who may call a special meeting of the shareholders of the Corporation; (viii) change the name of the registered agent of the Corporation in Article IX to David R. Brooks; (ix) replace Article XII of the Original Articles with a new section regarding the Board of Directors, which section provides for the establishment of classes of certain directors and who are directors in the three different classes, the inclusion of a provision limiting director removal from the Board of Directors only for cause and the establishment of procedures for the filling of any vacancies on the Board of Directors; (x) omit Article XIII of the Original Articles (reflecting a prior requirement that the Corporation raise $1,000 prior to commencing business) and Article V of the Original Articles (reflecting the name and address of the incorporator of the Corporation); (xi) omit references to the Texas Business Corporation Act contained in the Original Articles and make certain conforming amendments
IBG Amended Formation |
necessary to comply with the TBOC, including the title thereof; (xii) make minor immaterial changes, including the addition of new defined terms and other minor changes in the language used; and (xiii) re-number the items contained in the Original Articles as set forth in this Amended and Restated Certificate and provide titles for each Article.
ARTICLE THREE
Upon the effectiveness of this Amended and Restated Certificate (the Effective Time), every share of the Corporations common stock, par value $0.01 per share (the Common Stock), issued and outstanding immediately prior to the Effective Time will automatically be converted into three and two-tenths (3.2) shares of Common Stock, with any fractional shares rounded upward or downward to the nearest whole share. The authorized number of shares of Common Stock available for issuance and the par value of the Common Stock shall not be affected by such stock split and shall be and remain as stated in this Amended and Restated Certificate.
ARTICLE FOUR
The above amendments and actions were adopted, approved and effected in conformity with the provisions of the TBOC and the constituent documents of the Corporation.
ARTICLE FIVE
This Amended and Restated Certificate shall become effective upon filing with the Secretary of State of the State of Texas.
ARTICLE SIX
The text of the entire Original Articles as further amended by this Amended and Restated Certificate, is restated to read, in its entirety, as follows:
AMENDED AND RESTATED
CERTIFICATE OF FORMATION OF
INDEPENDENT BANK GROUP, INC.
ARTICLE I
NAME
The filing entity is a for-profit business corporation. The name of the corporation is Independent Bank Group, Inc. (the Corporation).
ARTICLE II
DURATION
The period of its duration is perpetual.
IBG Amended Formation | 2 |
ARTICLE III
PURPOSES
The purpose for which the Corporation is organized is to transact any or all lawful business for which a for-profit corporation may be organized under the Texas Business Organizations Code, as such may be amended from time to time (the TBOC).
ARTICLE IV
CAPITAL STOCK
A. Authorized Shares . The aggregate number of shares of capital stock that the Corporation shall have the authority to issue is One Hundred Ten Million (110,000,000) shares, of which One Hundred Million (100,000,000) shares shall be common stock, with a par value of $0.01 per share (the Common Stock), and Ten Million (10,000,000) shares shall be Preferred Stock, with a par value of $0.01 per share (the Preferred Stock).
B. Preferred Stock . The Board of Directors of the Corporation (the Board of Directors) is expressly authorized to provide for the issuance of all or any shares of the Preferred Stock in one or more classes or series, and to fix for each such class or series such voting powers, full or limited, or no voting powers, and such distinctive designations, preferences and relative, participating, optional or other special rights and such qualifications, limitations or restrictions thereof, as shall be stated and expressed in the resolution or resolutions adopted by the Board of Directors providing for the establishment of such class or series as may be permitted by the TBOC, including, without limitation, the authority to provide that any such class or series may be: (i) subject to redemption at such time or times, on such conditions and at such price or prices; (ii) entitled to receive dividends (which may be cumulative or non-cumulative) at such rates, on such conditions, and at such times, and payable in preference to, or in such relation to, the dividends payable on any other class or classes or any other series of capital stock of the Corporation; (iii) entitled to such rights upon the dissolution of, or upon any distribution of the assets of, the Corporation; or (iv) convertible into, or exchangeable for, shares of the same or any other class or classes of stock, or of the same or any other series of stock, of the Corporation at such price or prices or at such rates of exchange and with such adjustments; all as may be stated in such resolution or resolutions adopted by the Board of Directors.
C. Preemptive Rights . No shareholder of the Corporation shall, by reason of such shareholders holding shares of any class of the Corporation, have any preemptive or preferential right to purchase or subscribe to any shares of any class of the Corporation now or hereafter authorized.
D. Cumulative Voting . No shareholder of the Corporation shall have the right to cumulate such shareholders votes at any election for directors of the Corporation.
ARTICLE V
INTERESTED TRANSACTIONS
An otherwise valid contract or transaction between the Corporation and one or more of its directors or officers, or between the Corporation and any other domestic or foreign corporation
IBG Amended Formation | 3 |
or other entity in which one or more of its directors or officers are directors or officers or have a financial interest, shall be valid notwithstanding whether the director or officer is, or directors or officers are, present at or participates in the meeting of the Board of Directors or a committee thereof that authorizes the contract or transaction, or solely because his, her or their votes are counted for such purpose, if any one of the following conditions is satisfied: (i) the material facts as to his, her or their relationship or interest and as to the contract or transaction are disclosed or are known to the Board of Directors or the committee, and the Board of Directors or committee in good faith authorizes the contract or transaction by the affirmative vote of a majority of the disinterested directors, even though the disinterested directors do not constitute a quorum; (ii) the material facts as to his, her or their relationship or interest and as to the contract or transaction are disclosed or are known to the shareholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the shareholders; or (iii) the contract or transaction is fair as to the Corporation as of the time it is authorized, approved or ratified by the Board of Directors, a committee thereof, or the shareholders. Common or interested directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a committee that authorizes the contract or transaction.
ARTICLE VI
INDEMNIFICATION
A. Mandatory Indemnification . At any time during which this Article VI is in effect, the Corporation shall indemnify any person who was, is, or is threatened to be made, a party to a proceeding (as hereinafter defined) by reason of the fact that he or she (i) is or was a director or officer of the Corporation or (ii) while a director or officer of the Corporation, is or was serving at the request of the Corporation as a director, officer, partner, manager, managing member, venturer, proprietor, trustee, employee, agent or similar functionary (each, a Corporate Functionary) of another foreign or domestic corporation, partnership, limited liability company, joint venture, sole proprietorship, trust, employee benefit plan or other enterprise, in each of those capacities, against all expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such proceeding to the fullest extent permitted hereunder and under the TBOC and the Amended and Restated Bylaws of the Corporation (the Bylaws), as the same exist or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than such law permitted the Corporation to provide immediately prior to such amendment), and such indemnification shall continue as to a person who has ceased to be a director or officer of the Corporation or to serve in any of such other capacities at the time the indemnification or payment of expenses pursuant hereto is sought or at the time any proceeding relating thereto exists or is brought. As used in this Article VI, the term proceeding means any threatened, pending, or completed action, suit or proceeding, whether civil, criminal, administrative, arbitrative or investigative, any appeal in such an action, suit or proceeding, any inquiry or investigation that could lead to such an action, suit, or proceeding.
B. Permissive Indemnification . The Corporation may, in the sole and absolute discretion of the Board of Directors of the Corporation, also indemnify any employee or agent of the Corporation against all expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with a proceeding to the fullest extent permitted hereunder and by the TBOC and the Bylaws of the Corporation, as the same exist or may hereafter be amended.
IBG Amended Formation | 4 |
C. Advancement of Expenses . Each indemnitee under Section A of this Article VI shall have the right to be paid by the Corporation expenses (including, without limitation, attorneys fees) actually and reasonably incurred by such indemnitee in defending any proceeding in advance of its final disposition to the maximum extent permitted hereunder and under the TBOC and the Bylaws of the Corporation, as the same exist or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader advancement of expenses than such law permitted the Corporation to provide prior to such amendment), subject only to such written affirmation or undertaking as may be required to be furnished by the claimant under the TBOC.
D. Indemnitee Rights . The rights under this Article VI shall be contractual and as such shall inure to the benefit of any director or officer who is elected and accepts the position of director or officer of the Corporation or elects to continue to serve as a director or officer of the Corporation while this Article VI is in effect. In the event of the death of any person having a right of indemnification under the foregoing provisions, such right shall inure to the benefit of his or her heirs, executors, administrators and personal representatives. Notwithstanding the other provisions of this Article VI, to the extent that a director, officer or Corporate Functionary of the Corporation has been successful on the merits or otherwise in defense of any proceeding referred to in Section A of this Article VI, or in defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including attorneys fees) actually and reasonably incurred by such person in connection therewith.
E. Determination of Indemnification . Any indemnification under Section A or Section B of this Article VI (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the director, officer, Corporate Functionary, employee or agent is proper in the circumstances because such person has met the applicable standard of conduct set forth in the TBOC. Such determination shall be made (i) by the Board of Directors or a committee thereof by a majority vote of a quorum consisting of directors who are disinterested and independent and were not parties to such proceeding, or (ii) if such a quorum is not obtainable, or, even if obtainable a quorum of disinterested and independent directors so directs, by independent legal counsel in a written opinion or (iii) by the shareholders.
F. Nonexclusivity . The rights conferred in this Article VI shall not be exclusive of any other right that any person may have or hereafter acquire under any statute, bylaw, resolution of shareholders or disinterested directors, agreement or otherwise, both as to action in such persons official capacity and as to action in another capacity while holding such office.
G. Repeal or Amendment . Any amendment, modification, alteration or repeal of this Article VI that in any way diminishes, limits, restricts, adversely affects or eliminates any right of an officer, director or Corporate Functionary or his or her respective successors to indemnification, advancement of expenses or otherwise shall be prospective only and shall not in any way diminish, limit, restrict, adversely affect or eliminate any such right with respect to any actual or alleged state of facts, occurrence, action or omission then or previously existing, or any proceeding previously or thereafter brought or threatened based in whole or in part upon any such actual alleged state of facts, occurrence, action or omission.
IBG Amended Formation | 5 |
H. Definitions of Certain Terms . For purposes of this Article VI, (i) references to the Corporation shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger, which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under the provisions of this Article VI with respect to the resulting or surviving corporation as such person would have with respect to such constituent corporation if its separate existence had continued; (ii) references to other enterprises shall include employee benefit plans; (iii) references to fines shall include any excise taxes assessed on a person with respect to an employee benefit plan; and (iv) references to serving at the request of the Corporation shall include any service as a director, officer, employee or agent of the Corporation that imposes duties on, or involves services by, such director, officer, employee or agent, including with respect to an employee benefit plan, its participants or beneficiaries.
ARTICLE VII
LIMITATION OF LIABILITY
No director of the Corporation shall be personally liable to the Corporation or any of its shareholders for monetary damages for an act or omission in such persons capacity as a director, except that this Article VII does not eliminate or limit the liability of a director of the Corporation for: (i) a breach of a directors duty of loyalty to the Corporation or its shareholders; (ii) an act or omission not in good faith that constitutes a breach of the directors duty to the Corporation; (iii) an act or omission not in good faith that involves intentional misconduct or a knowing violation of law; (iv) a transaction from which a director received an improper benefit, whether or not the benefit resulted from an action taken within the scope of the directors duties; (v) an act or omission for which the liability of a director is expressly provided by an applicable statute; or (vi) an act related to an unlawful stock repurchase or payment of an improper dividend.
ARTICLE VIII
SHAREHOLDER ACTIONS
Unless otherwise required by law, special meetings of shareholders, for any purpose or purposes, (i) may be called by the Chairman of the Board of Directors or (ii) shall be called by the Secretary or an Assistant Secretary of the Corporation at the request in writing of (A) a majority of the Board of Directors or (B) a holder of, or the holders of, at least twenty percent (20%) of the Corporations then outstanding capital stock entitled to vote generally in the election of directors.
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Any action required by the TBOC to be taken at any annual or special meeting of shareholders, or any action which may be taken at any annual or special meeting of shareholders, may be taken without a meeting, without prior notice, and without a vote, if a consent or consents in writing, setting for the action so taken, shall be signed by the holder or holders of shares representing not less than the minimum number of votes that would have been necessary to take such action at a meeting at which the holders of all shares entitled to vote on the action were present and voted.
ARTICLE IX
REGISTERED OFFICE AND AGENT
The address of the Corporations registered office is 1600 Redbud Blvd., Suite 400, McKinney, Texas 75069, and the name of the registered agent at such address is David R. Brooks.
ARTICLE X
BOARD OF DIRECTORS
A. General . The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors. In addition to the powers and authority herein or by statute expressly conferred upon them, the directors of the Corporation are hereby empowered to exercise all such powers and do all such acts and things as may be exercised or done by the Corporation, subject to the provisions of the TBOC, this Amended and Restated Certificate of Formation (the Amended and Restated Certificate) and the Bylaws of the Corporation.
B. Number of Directors . Except pursuant to the provisions of Article IV hereof relating to the rights of the holders of any class or series of stock having the right to elect a director by the vote solely of the holders of that class or series of stock, the number and class of directors of the Corporation shall be fixed from time to time by the affirmative vote of a majority of the entire Board of Directors or pursuant to the Bylaws of the Corporation.
C. Classes . The directors, other than those who may be elected by the holders of shares of any class or series of stock having the right to elect a director by the vote solely of the holders of that class or series of stock pursuant to the terms of Article IV hereof or any resolution or resolutions providing for the establishment of such class or series of stock adopted by the Board of Directors, shall be divided into three classes, with respect to the time for which they severally hold office, designated Class I, Class II and Class III. Each class shall consist, as nearly as may be possible, of one-third of the total number of directors constituting the entire Board of Directors. The initial division of the Board of Directors following the effective date of this Amended and Restated Certificate shall be as follows:
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the Class I directors will initially consist of the following individuals, and their term shall expire at the annual meeting of shareholders to be held in 2014: |
Torry Berntsen |
1600 Redbud Blvd., Suite 400 McKinney, Texas 75069 |
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Jack M. Radke |
1600 Redbud Blvd., Suite 400 McKinney, Texas 75069 |
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Stacy G. Smith |
1600 Redbud Blvd., Suite 400 McKinney, Texas 75069 |
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the Class II directors will initially consist of the following individuals, and their term will expire at the annual meeting of shareholders to be held in 2015: |
Daniel W. Brooks |
1600 Redbud Blvd., Suite 400 McKinney, Texas 75069 |
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William E. Fair |
1600 Redbud Blvd., Suite 400 McKinney, Texas 75069 |
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Craig E. Holmes |
1600 Redbud Blvd., Suite 400 McKinney, Texas 75069 |
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Michael T. Viola |
1600 Redbud Blvd., Suite 400 McKinney, Texas 75069 |
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the Class III directors will initially consist of the following individuals, and their term will expire at the annual meeting of shareholders to be held in fiscal year 2016: |
M. Brian Aynesworth |
1600 Redbud Blvd., Suite 400 McKinney, Texas 75069 |
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David R. Brooks |
1600 Redbud Blvd., Suite 400 McKinney, Texas 75069 |
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Douglas A. Cifu |
1600 Redbud Blvd., Suite 400 McKinney, Texas 75069 |
D. Advance Notice of Nominations . Advance notice of nominations for the election of directors shall be given in the manner and to the extent provided in the Bylaws of the Corporation.
E. Terms of Office . A director shall hold office until the annual meeting of shareholders for the year in which his or her respective term expires and until his or her respective successor shall be elected and shall be qualified or until his or her earlier death, resignation, retirement, disqualification or removal from office.
F. Election of Directors . Subject to the rights of the holders of any class or series of stock having the right to elect a director by the vote solely of the holders of that class or series of stock, (i) at each succeeding annual meeting of shareholders beginning in 2014, successors to the class of directors whose term expires at that meeting shall be elected for a three-year term
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and (ii) if the number of directors is changed, any increase or decrease shall be apportioned among the classes so as to maintain the number of directors in each class to as nearly as possible to one-third of the total number of directors, but in no case will a decrease in the number of directors shorten the term of any incumbent director. As determined by the Board of Directors, the annual meeting of shareholders should be held each year, to the extent practicable, to ensure that the terms of office of shall be approximately three (3) complete years in length. In any election of directors, the persons receiving a plurality of the votes cast, up to the number of directors to be elected in such election, shall be deemed elected. Each director shall be at least 21 years of age. Directors need not be shareholders of the Corporation.
G. Vacancy . Any vacancy on the Board of Directors occurring between annual meetings of shareholders, including up to two (2) newly created directorships, may be filled by a majority of the Board of Directors then in office, even if less than a quorum, or by a sole remaining director. Any director of any class elected to fill a vacancy resulting from an increase in the number of directors in such class shall hold office for a term ending with the next election of directors. Any director elected to fill a vacancy not resulting from an increase in the number of directors shall have the same remaining term as that of his or her predecessor.
H. Removal of Directors . Subject to the rights of the holders of any class or series of stock having the right to elect a director by the vote solely of the holders of that class or series of stock, any director may be removed from office only for cause and only by the affirmative vote of the holders of a majority of the combined voting power of the then outstanding shares of stock of all classes and series of the Corporation entitled to vote generally in the election of directors (Voting Stock), voting together as a single class.
ARTICLE XI
BYLAWS
In furtherance and not in limitation of the powers conferred upon it by law, the Board of Directors is expressly authorized to adopt, repeal, alter or amend the Bylaws of the Corporation or adopt new Bylaw provisions by the vote of a majority of the entire Board of Directors. In addition to any requirements of law and any other provision of this Amended and Restated Certificate or any resolution or resolutions of the Board of Directors adopted pursuant to Article IV of this Amended and Restated Certificate (and notwithstanding the fact that a lesser percentage may be specified by law, this Amended and Restated Certificate or any such resolution or resolutions), provisions of the Bylaws of the Corporation may be adopted, repealed, altered or amended by the shareholders of the Corporation only by the affirmative vote of the holders of two-thirds or more of the combined voting power of the then outstanding shares of Voting Stock, voting together as a single class and cast at a meeting of the shareholders called for that purpose (provided that notice of such proposed adoption, repeal, alteration or amendment is included in the notice of such meeting).
[Signature page follows]
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IN WITNESS WHEREOF, the Corporation has caused this Amended and Restated Certificate of Formation to be executed by a duly authorized officer this 22nd day of February 2013.
INDEPENDENT BANK GROUP, INC. | ||
By: |
/s/ David R. Brooks |
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David R. Brooks, Chairman of the Board | ||
and Chief Executive Officer |
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Exhibit 3.2
SECOND AMENDED AND RESTATED BYLAWS OF
INDEPENDENT BANK GROUP, INC.
ARTICLE I.
OFFICES
Section 1. Registered Office . The registered office of Independent Bank Group, Inc. (the Corporation ) shall be located in the City of McKinney, County of Collin, State of Texas.
Section 2. Other Offices . The Corporation may also have an office or offices, and keep the books and records of the Corporation, except as may be required by law, at such other place or places, either within or without the State of Texas, as the board of directors of the Corporation (the Board of Directors or Board ) may from time to time determine or as the business of the Corporation may require.
ARTICLE II.
MEETINGS OF SHAREHOLDERS
Section 1. Place of Meetings . All annual meetings of the shareholders of the Corporation shall be held at the offices of the Corporation, or at such other place, within or without the State of Texas, as may be designated by the Board of Directors and stated in the notice of the meeting or in a duly executed waiver of notice thereof. Special meetings of shareholders of the Corporation may be held at such place, within or without the State of Texas, and at such time as shall be stated in the notice of the meeting or in a duly executed waiver of notice thereof.
Section 2. Annual Meetings . Annual meetings of the shareholders of the Corporation shall be held annually on such date and at such time and place as shall be designated from time to time by the Board of Directors, at which the shareholders of the Corporation shall elect the class of the Board of Directors then up for election and transact such other business as may properly be brought before the meeting.
Section 3. Business at Annual Meetings . At an annual meeting of shareholders of the Corporation, only such business (including the nomination of directors) shall be conducted as shall have been properly brought before the meeting. To be properly brought before the annual meeting, business must (i) be specified in the notice of meeting (or in any supplement) given by or at the direction of the Board of Directors, (ii) be otherwise properly brought before the meeting by or at the direction of the Board of Directors or (iii) satisfy the notice requirements set forth below in this Article II and otherwise be properly brought before the meeting by a shareholder.
Section 4. S hareholder Nominations and Proposals . A notice of a shareholder to make a nomination of a person for election as a director of the Corporation or to bring any other matter before a meeting shall be made in writing and received by the Secretary of the Corporation (i) in the event of an annual meeting of shareholders, not more than one hundred twenty (120) days and not less than ninety (90) days in advance of the anniversary date of the immediately preceding annual meeting; provided , however , that in the event that the annual meeting is called on a date that is not within thirty (30) days before or after such anniversary
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date, notice by the shareholder in order to be timely must be so received not later than the close of business on the fifteenth (15 th ) day following the day on which notice of the date of the annual meeting was mailed or public disclosure of the date of the annual meeting was made, whichever first occurs; or (ii) in the event of a special meeting of shareholders, such notice shall be received by the Secretary of the Corporation not later than the close of business on the fifteenth (15 th ) day following the day on which notice of the meeting is first mailed to shareholders or public disclosure of the date of the special meeting was made, whichever first occurs.
Every such notice by a shareholder shall set forth:
(i) the name and residence address of the shareholder of the Corporation who intends to make a nomination or bring up any other matter;
(ii) a representation that the shareholder is a holder of the Corporations voting stock (indicating the class and number of shares owned) and intends to appear in person or by proxy at the meeting to make the nomination or bring up the matter specified in the notice;
(iii) with respect to notice of an intent to make a nomination for the election of a person as a director of the Corporation, a description of all arrangements or understandings among the shareholder and each nominee and any other person or persons (naming such person or persons) pursuant to which the nomination or nominations are to be made by the shareholder;
(iv) with respect to an intent to make a nomination, such other information regarding each nominee proposed by such shareholder as would have been required to be included in a proxy statement filed pursuant to the proxy rules of the Securities and Exchange Commission had each nominee been nominated by the Board of Directors of the Corporation; and
(v) with respect to the notice of an intent to bring up any other matter, a description of the matter, and any material interest of the shareholder in the matter.
Notice of intent to make a nomination of a person for election as a director of the Corporation shall be accompanied by the written consent of each nominee to serve as director of the Corporation if so elected.
At the meeting of shareholders, the Chairman shall declare out of order and disregard any nomination or other matter not presented in accordance with this section.
This Article II, Section 4 shall be the exclusive means for a shareholder to make nominations of persons for election as a director of the Corporation or provide notice of the shareholders intent to bring other business before a meeting of shareholders (other than proposals brought under Rule 14a-8 under the Securities Exchange Act of 1934, as amended, and included in the Corporations notice of meeting, which proposals are not governed by these Bylaws).
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Section 5. Compliance with Procedures . Notwithstanding anything in these Second Amended and Restated Bylaws (the Bylaws ) to the contrary, no business shall be conducted at an annual meeting except in accordance with the procedures set forth in this Article II. The Chairman of an annual meeting shall, if the facts warrant, determine and declare to the meeting that a matter of business was not properly brought before the annual meeting in accordance with the provisions of this Article II or otherwise, and if the Chairman should so determine, the Chairman shall so declare to the annual meeting and any such business not properly brought before the meeting shall not be transacted.
Section 6. Special Meetings . Except as otherwise required by law and subject to the rights of the holders of any class or series of stock having a preference over the common stock as to dividends upon liquidation, special meetings of the shareholders of the Corporation may be called only by (i) the Secretary of the Corporation at the request in writing by a majority of the entire Board of Directors, (ii) the Chairman of the Board or (iii) the holders of not less than twenty percent (20%) of all shares entitled to vote in the election of directors at the meeting. Special meetings of the shareholders may be called at such place and on such date and at such time as fixed by the appropriate person calling such special meeting of the shareholders.
Section 7. Notice of Meetings . Except as otherwise required by law, written or printed notice stating the place, day and hour of the meeting, whether annual or special, and, in the case of a special meeting, the purpose or purposes for which the meeting is called, shall be delivered not less than ten (10) nor more than sixty (60) days before the day of the meeting, either personally or by mail, by or at the direction of the Chief Executive Officer who acts as the President, the Secretary or the officer or person calling the meeting, to each shareholder of the Corporation of record entitled to vote at such meeting. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail addressed to the shareholder at such shareholders address as it appears on the stock transfer books of the Corporation, with postage thereon prepaid. See also Article VII. Notice of any meeting of shareholders shall not be required to be given to any shareholder who shall attend such meeting in person or by proxy without protesting, at the commencement of the meeting, the lack of proper notice to such shareholder, or who shall waive notice thereof as provided in Article VII, Section 2, of these Bylaws.
Section 8. Business at Special Meetings . Only such business as is specified in the notice of any special meeting of the shareholders may come before such meeting.
Section 9. Quorum; Adjourned Meetings . Except as required by law or by the Amended and Restated Certificate of Formation of the Corporation (the Amended and Restated Certificate ), the holders of a majority of the votes entitled to be cast by the shareholders entitled to vote, which if any vote is to be taken by classes shall mean the holders of a majority or the votes entitled to be cast by the shareholders of each such class, represented in person or by proxy, shall constitute a quorum at meetings of shareholders of the Corporation. If, however, a quorum shall not be present or represented at any meeting of the shareholders of the Corporation, the holders of a majority of the votes entitled to be cast by such shareholders, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented, if the time and place to which the meeting is adjourned are announced at such meeting, unless the
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adjournment is for more than thirty (30) days or, after adjournment, a new record date is fixed for the adjourned meeting. At such adjourned meeting at which a quorum shall be present or represented, any business may be transacted that might have been transacted at the meeting as originally notified and called.
Section 10. Voting . Except as otherwise provided by law or by the Amended and Restated Certificate, each shareholder of record of shares of any class or series of capital stock of the Corporation having a preference over the common stock of the Corporation as to dividends or upon liquidation shall be entitled on each matter submitted to a vote at each meeting of shareholders to such number of votes for each share of such stock as may be fixed in the Amended and Restated Certificate or in the resolution or resolutions adopted by the Board of Directors providing for the establishment of such stock, and each shareholder of record of common stock shall be entitled at each meeting of shareholders to one vote for each share of common stock, in each case, registered in such shareholders name on the books of the Corporation:
(a) on the date fixed pursuant to Section 6 of Article VIII of these Bylaws as the record date for the determination of shareholders entitled to notice of and to vote at such meeting; or
(b) if no such record date shall have been so fixed, then at the close of business on the day next preceding the day on which notice of such meeting is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held.
A shareholder may vote in person or by proxy executed in writing by the shareholder or by such shareholders duly authorized attorney-in-fact. Each shareholder entitled to vote at any meeting of shareholders may authorize not in excess of three persons to act for such shareholder by a proxy signed by such shareholder or such shareholders attorney-in-fact. Any such proxy shall be delivered to the Secretary at or prior to the time designated for holding such meeting, but in any event not later than the time designated in the order of business for so delivering such proxies. No proxy shall be valid after eleven (11) months from the date of its execution. Each proxy shall be revocable unless expressly provided therein to be irrevocable, and unless otherwise made irrevocable by law. Each proxy shall be filed with the Secretary of the Corporation prior to or at the time of the meeting.
At each meeting of the shareholders at which a quorum is present or represented, all corporate actions to be taken by vote of the shareholders shall be authorized by a majority of the votes cast by the shareholders entitled to vote thereon, present in person or represented by proxy, and where a separate vote by class is required, a majority of the votes cast by the shareholders of such class, present in person or represented by proxy, shall be the act of such class, unless, in each case, as otherwise required by law and except as otherwise provided in the Amended and Restated Certificate or these Bylaws. See Article IX.
Each vote of the shareholders shall be by written ballot. Each ballot shall be signed by the shareholders who are voting, or by such shareholders proxy, and shall state the number of shares voted.
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Section 11. No Cumulative Voting . Cumulative voting in the election of directors is not allowed under the Amended and Restated Certificate.
Section 12. Order of Business . At each meeting of the shareholders, one of the following persons, in the order in which they are listed (and in the absence of the first, the next, and so on), shall serve as chairman of the meeting, the Chairman of the Board, Vice Chairmen of the Board (in the order of their seniority if more than one), Chief Executive Officer (who serves as the President), Vice Presidents (in the order of their seniority if more than one) and Secretary. The order of business at each such meeting shall be as determined by the chairman of the meeting. The chairman of the meeting shall have the right and authority, either before or during any meeting of shareholders, to prescribe such rules, regulations and procedures and to do all such acts and things as are necessary or desirable for the proper conduct of the meeting, including, without limitation, the establishment of procedures for the maintenance of order and safety, limitations on the time allotted to questions or comments on the affairs of the Corporation, restrictions on entry to such meeting, the opening and closing of the voting polls, the presentation, revocation and counting of proxies at the meeting with respect to issues to be presented, and all other aspects of any annual or special meeting of shareholders. The chairmans determination of the rules and his interpretations thereof shall be in his reasonable discretion and shall be final, unless the Amended and Restated Certificate or these Bylaws, or resolution of the Board of Directors, or applicable law or regulation establishes rules governing a particular matter, in which case such provisions shall be dispositive.
Section 13. List of Shareholders . The officer or agent having charge of the stock transfer books shall make, at least ten (10) days before each meeting of the shareholders of the Corporation, a complete list of the shareholders entitled to vote at such meeting or any adjournment thereof, arranged in alphabetical order, with the address of and number of shares held by each, which list, for a period of ten (10) days prior to such meeting, shall be kept on file at the registered office of the Corporation and shall be subject to inspection by any shareholder of the Corporation at any time during normal business hours. Such list shall also be produced and kept open at the time and place of the meeting and shall be subject to the inspection by any shareholder during the whole time of the meeting and otherwise as required by law. The original stock transfer books of the Corporation shall be prima facie evidence as to the shareholders who are entitled to examine such list or transfer book or to vote at any such meeting of the shareholders of the Corporation.
Section 14. Inspectors . Either the Board of Directors or, in the absence of a designation of inspectors by the Board, the chairman of any meeting of shareholders may, in its or such persons discretion, appoint two or more inspectors to act at any meeting of shareholders. Such inspectors shall perform such duties as shall be specified by the Board or the chairman of the meeting. Inspectors need not be shareholders. No director or nominee for the office of director shall be appointed such inspector.
Section 15. Participation in Meeting by Means of Communication Equipment . Shareholders may participate in and hold a meeting by means of conference telephone or similar communication equipment or another suitable electronic communications system (including, without limitation, video conferencing or the Internet), if the telephone or other equipment or system permits each person participating in the meeting to communicate with all other persons
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participating in the meeting. Participation in such a meeting shall constitute presence in person at the meeting, except where a person participates in the meeting for the express purpose of objecting to the transaction of any business on the ground the meeting is not lawfully called or convened.
ARTICLE III.
BOARD OF DIRECTORS
Section 1. General Powers . The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors. In addition to the powers and authority in the Amended and Restated Certificate, in these Bylaws or by statute expressly conferred upon them, the directors of the Corporation are hereby empowered to exercise all such powers and do all such acts and things as may be exercised or done by the Corporation, subject to the provisions of the Texas Business Organizations Code ( TBOC ), the Amended and Restated Certificate and these Bylaws.
Section 2. Number of Directors . Except pursuant to the provisions of Article IV of the Amended and Restated Certificate relating to the rights of the holders of any class or series of stock having the right to elect a director by the vote solely of the holders of that class or series of stock, the number and class of directors of the Corporation shall be fixed from time to time by the affirmative vote of a majority of the entire Board of Directors or pursuant to these Bylaws.
Section 3. Classes . The directors, other than those who may be elected by the holders of shares of any class or series of stock having the right to elect a director by the vote solely of the holders of that class or series of stock pursuant to the terms of Article IV of the Amended and Restated Certificate or any resolution or resolutions providing for the establishment of such class or series of stock adopted by the Board of Directors, shall be divided into three classes, with respect to the time for which they severally hold office, designated Class I, Class II and Class III. Each class shall consist, as nearly as may be possible, of one-third of the total number of directors constituting the entire Board of Directors. The initial classifications and terms of the Board of Directors following the effective date of this Amended and Restated Certificate shall be as follows:
(a) the terms of the Class I directors will initially expire at the annual meeting of shareholders to be held in 2014;
(b) the terms of the Class II directors will initially expire at the annual meeting of shareholders to be held in 2015; and
(c) the terms of the Class III directors will initially expire at the annual meeting of shareholders to be held in fiscal year 2016.
Section 4. Advance Notice of Nominations . Advance notice of nominations for the election of directors shall be given in the manner and to the extent provided in Article III, Section 9 of these Bylaws.
Section 5. Terms of Office . A director shall hold office until the annual meeting of shareholders for the year in which his or her respective term expires and until his or her respective successor shall be elected and shall be qualified or until or her earlier death, resignation, retirement, disqualification or removal from office.
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Section 6. Election of Directors . Subject to the rights of the holders of any class or series of capital stock having the right to elect a director by the vote solely of the holders of that class or series of stock, at each succeeding annual meeting of shareholders beginning in 2014, successors to the class of directors whose term expires at that meeting shall be elected for a three-year term. Subject to the rights of the holders of any class or series of capital stock having the right to elect a director by the vote solely of the holders of that class or series of stock, if the number of directors is changed, any increase or decrease shall be apportioned among the classes so as to maintain the number of directors in each class to as nearly as possible to one-third ( 1 / 3 ) of the total number of directors, but in no case will a decrease in the number of directors shorten the term of any incumbent director. As determined by the Board of Directors, the annual meeting of shareholders should be held each year, to the extent practicable, to ensure that the terms of office of each director shall be approximately three (3) complete years in length. In any election of directors, the persons receiving a plurality of the votes cast, up to the number of directors to be elected in such election, shall be deemed elected. Each director shall be at least twenty-one (21) years of age. Directors need not be shareholders of the Corporation.
Section 7. Vacancies . Any vacancy on the Board of Directors occurring between annual meetings of shareholders, including up to two (2) newly created directorships, may be filled by a majority of the Board of Directors then in office, even if less than a quorum, or by a sole remaining director. Any director of any class elected to fill a vacancy resulting from an increase in the number of directors in such class shall hold office for a term that shall coincide with the remaining current term for the other directors in such class. Any director elected to fill a vacancy not resulting from an increase in the number of directors shall have the same remaining term as that of his or her predecessor.
Section 8. Removal of Directors . Subject to the rights of the holders of any class or series of capital stock having the right to elect a director by the vote solely of the holders of that class or series of stock, any director may be removed from office only for cause and only by the affirmative vote of the holders of a majority of the combined voting power of the then outstanding shares of capital stock of all classes and series of the Corporation entitled to vote generally in the election of directors ( Voting Stock ), voting together as a single class.
Section 9. Place of Meeting . The Board of Directors may hold its meetings at such place or places within or without the State of Texas as the Board may from time to time determine or as shall be specified or fixed in the respective notices or waivers of notice thereof.
Section 10. Quorum and Manner of Acting . Except as otherwise provided by law, the Amended and Restated Certificate or these Bylaws, a majority of the entire Board of Directors shall constitute a quorum for the transaction of business at any meeting of the Board, and, except as otherwise provided, the vote of a majority of the directors present at any meeting at which a quorum is present shall be the act of the Board. In the absence of a quorum, a majority of the directors present may adjourn the meeting to another time and place. Notice of any adjourned meeting shall be given as set forth in Section 13 of this Article III. At any adjourned meeting at which a quorum is present, any business may be transacted which might have been transacted at the meeting as originally called and noticed.
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Section 11. Regular Meetings . Regular meetings of the Board of Directors shall be held at such times and places as the Board shall from time to time by resolution determine. If any day fixed for a regular meeting shall be a legal holiday under the laws of the place where the meeting is to be held, the meeting that would otherwise be held on that day shall be held at the same hour on the next succeeding day not a legal holiday.
Section 12. Special Meetings . Special meetings of the Board of Directors shall be held whenever called by the Chairman of the Board or the Chief Executive Officer or by the Secretary upon the request of a majority of the directors.
Section 13. Notice of Meetings . Notice of regular meetings of the Board of Directors or of any adjourned meeting thereof need not be given. Notice of each special meeting of the Board shall be mailed to each director, addressed to such director at such directors residence or usual place of business, at least three (3) days before the day on which the meeting is to be held or shall be sent to such director at such place by electronic transmission (email) or be given personally or by telephone, not later than the day before the meeting is to be held, but notice need not be given to any director who shall, either before or after the meeting, submit a signed waiver of such notice or who shall attend such meeting without protesting, prior to or at its commencement, the lack of notice to such director. Every such notice shall state the time and place, but need not state the purpose of the meeting.
Section 14. Rules and Regulations . The Board of Directors may adopt such rules and regulations not inconsistent with the provisions of law, the Amended and Restated Certificate or these Bylaws for the conduct of its meetings and management of the affairs of the Corporation as the Board may deem proper.
Section 15. Participation in Meeting by Means of Communications Equipment . Any one or more members of the Board of Directors or any committee thereof may participate in any meeting of the Board or of any such committee by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear and converse with each other, and such participation in a meeting shall constitute presence in person at such meeting.
Section 16. Action Without a Meeting . Any action required or permitted to be taken at any meeting of the Board of Directors or any committee thereof may be taken without a meeting if all of the members of the Board or of any such committee consent thereto in writing and the writing or writings are filed with the minutes of proceedings of the Board or of such committee.
Section 17. Resignations . Any director of the Corporation may at any time resign by giving written notice to the Board of Directors, the Chairman of the Board, the Chief Executive Officer or the Secretary of the Corporation. Such resignation shall take effect at the time specified therein or, if the time be not specified, upon receipt thereof; and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.
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ARTICLE IV.
BOARD COMMITTEES
Section 1. Committees . The Board of Directors may, by resolution adopted by a majority of the entire Board, designate from among its members one or more committees and shall designate such committee as shall be required by applicable law or the listing requirements of any national securities exchange on which securities of the Corporation are listed for trading (the Listing Rules ), each of which shall, except as otherwise prescribed by applicable law or the Listing Rules, have such authority of the Board as the Board may specify in the resolutions designating such committee or in the charter of such committee adopted by the Board. A majority of all the members of each such committee may determine its action and fix the time and place of its meetings, unless the Board shall otherwise provide. The Board or such committee, if so authorized by its charter, shall have power at any time to change the membership of, to increase or decrease the membership of, to fill all vacancies in and to discharge any such committee, or any member thereof, either with or without cause.
Section 2. Procedure; Meetings; Quorum . Regular meetings of any committee of the Board of Directors, of which no notice shall be necessary, may be held at such times and places as shall be fixed by resolution adopted by a majority of the members thereof. Special meetings of any committee of the Board shall be called at the request of any member thereof. Notice of each special meeting of any committee of the Board shall be sent by mail, electronic transmission (email) or telephone, or be delivered personally to each member thereof not later than the day before the day on which the meeting is to be held, but notice need not be given to any member who shall, either before or after the meeting, submit a signed waiver of such notice or who shall attend such meeting without protesting, prior to or at its commencement, the lack of such notice to such member. Any special meeting of any committee of the Board shall be a legal meeting without any notice thereof having been given, if all the members thereof shall be present at such meeting, unless a member attends the meeting for the purpose of protesting, prior to its commencement, that the meeting is not proper. Notice of any adjourned meeting of any committee of the Board need not be given. Each committee of the Board may adopt such rules and regulations not inconsistent with the provisions of law, the Amended and Restated Certificate or these Bylaws for the conduct of its meetings as such committee of the Board may deem proper. A majority of the members of each committee of the Board shall constitute a quorum for the transaction of business at any meeting, and the vote of a majority of the members thereof present at any meeting at which a quorum is present shall be the act of such committee. The Board may fill any vacancy on any committee. Each committee of the Board of Directors shall keep written minutes of its proceedings, a copy of which is to be filed with the Secretary of the Corporation, and such committee shall report on such proceedings to the Board.
ARTICLE V.
OFFICERS
Section 1. Number; Term of Office ; Compensation . The officers of the Corporation shall be a Chairman of the Board, one or more Vice Chairmen of the Board, a Chief Executive Officer (who shall also be the President unless a separate office of President is later established by the Board), a Chief Operating Officer, a Chief Risk Officer, a Chief Financial Officer (who shall also be the Treasurer unless a separate office of Treasurer is later established
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by the Board), a Chief Lending Officer, a Secretary, one or more Vice Presidents, any of which may be designated as Executive or Senior Vice President, or such other designation (such as Assistant Secretary or Assistant Treasurer) as deemed appropriate, from time to time, by the Board of Directors, and such other officers or agents with such titles and such duties as the Board of Directors may from time to time determine, each to have such authority, functions or duties as provided in these Bylaws or as the Board of Directors may from time to time determine, and each to hold office for such term as may be prescribed by the Board of Directors and as to those offices as determined to be mandatory under the provisions hereof until such persons successor shall have been chosen and shall qualify, all until any of such persons death or resignation or until such persons removal in the manner hereinafter provided. The Chairman of the Board, any Vice Chairman of the Board and the Chief Executive Officer shall be elected from among the directors. One person may hold the offices and perform the duties of any two or more of said officers; provided , however , that no officer shall execute, acknowledge or verify any instrument in more than one capacity if such instrument is required by law, the Amended and Restated Certificate or these Bylaws to be executed, acknowledged or verified by two or more officers. The Board may from time to time authorize any superior officer to appoint and remove any such other officers and agents and to prescribe their powers and duties. The Board may require any officer or agent to give security for the faithful performance of such persons duties. The Board shall establish the salaries of the officers of the Corporation.
Section 2. Removal . Any officer may be removed, either with or without cause, by the Board of Directors at any meeting thereof, or, except in the case of the Chairman, Vice Chairman or Chief Executive Officer, by any committee of the Board or superior officer upon whom such power may be conferred by the Board.
Section 3. Resignation . Subject at all times to the right of removal as provided in Section 2 of this Article V, any officer may resign at any time by giving notice to the Board of Directors, the Chief Executive Officer or the Secretary of the Corporation. Any such resignation shall take effect at the date of receipt of such notice or at any later date specified therein; provided that the Chief Executive Officer or, in the event of the resignation of the Chief Executive Officer, the Board of Directors may designate an effective date for such resignation that is earlier than the date specified in such notice, but which is not earlier than the date of receipt of such notice; and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.
Section 4. Vacancies . A vacancy in any office because of death, resignation, retirement, removal or any other cause may be filled for the unexpired portion of the term in the manner prescribed in these Bylaws for election to such office.
Section 5. Chairman of the Board . The Chairman of the Board shall, if present, preside at meetings of the Board of Directors and, if present, and in the absence of the Chief Executive Officer, preside at meetings of the shareholders. The Chairman of the Board shall counsel with and advise the Chief Executive Officer and perform such other duties as the Chief Executive Officer or the Board may from time to time determine. The Chairman of the Board may sign and execute in the name of the Corporation deeds, mortgages, bonds, contracts or other instruments authorized by the Board or any committee thereof empowered to authorize the same.
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Section 6. Vice Chairman of the Board . In the absence of the Chairman of the Board and the Chief Executive Officer, the Vice Chairman of the Board, or if there shall be more than one, a Vice Chairman of the Board as designated by the Chief Executive Officer or the Chairman of the Board, or, in the absence of such designation, as designated by the Board of Directors, shall, if present, preside at meetings of the Board of Directors. When so acting, each Vice Chairman of the Board shall have the powers, and be subject to all the restrictions on, the Chairman of the Board. Each Vice Chairman of the Board shall, when requested, counsel with and advise the Chief Executive Officer, the Chairman of the Board, and other officers of the Corporation and shall perform such other duties as may be agreed upon with them or as the Board may from time to time determine. Each Vice Chairman may sign and execute in the name of the Corporation deeds, mortgages, bonds, contracts or other instruments authorized by the Board or any committee thereof empowered to authorize the same.
Section 7. Chief Executive Officer (also the President) . The Chief Executive Officer shall be the chief executive officer of the Corporation and shall also serve as the President of the Corporation (unless a separate office of President is later established by the Board). As such, the Chief Executive Officer shall have general supervision and direction of the business and affairs of the Corporation and its subsidiaries, subject to the control of the Board of Directors and shall see that all orders and resolutions of the Board of Directors are carried into effect. The Chief Executive Officer shall, if present and in the absence of the Chairman of the Board, preside at meetings of the Board. The Chief Executive Officer shall perform such other duties as the Board may from time to time determine. The Chief Executive Officer may sign and execute in the name of the Corporation deeds, mortgages, bonds, contracts or other instruments authorized by the Board or any committee thereof empowered to authorize the same. The Chief Executive Officer, or his or the Boards designee, shall vote all securities held by the Corporation.
Section 8. Chief Operating Officer . The Chief Operating Officer of the Corporation shall have general supervision over the operations of the Corporation and its subsidiaries, subject to the direction of the Chief Executive Officer, the Chairman of the Board or the Board of Directors. The Chief Operating Officer may sign and execute in the name of the Corporation deeds, mortgages, bonds, contracts or other instruments authorized by the Board or any committee thereof empowered to authorize the same.
Section 9. Chief Risk Officer . The Chief Risk Officer of the Corporation shall have general supervision over the risk profile, loan underwriting and credit administration and risk management of the Corporation and its subsidiaries, subject to the direction of the Chief Executive Officer, the Chairman of the Board or the Board of Directors. The Chief Risk Officer may sign and execute in the name of the Corporation deeds, mortgages, bonds, contracts or other instruments authorized by the Board or any committee thereof empowered to authorize the same.
Section 10. Chief Financial Officer . The Chief Financial Officer of the Corporation shall have general supervision over the financial operations of the Corporation and its subsidiaries, subject to the direction of the Chief Executive Officer, the Chairman of the Board or the Board of Directors. The Chief Financial Officer shall also perform all duties incident to the office of Treasurer (unless a separate office of Treasurer is later established by the Board). The Chief Financial Officer may sign and execute in the name of the Corporation deeds, mortgages, bonds, contracts or other instruments authorized by the Board or any committee thereof empowered to authorize the same.
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Section 11. Chief Lending Officer . The Chief Lending Officer of the Corporation shall have general supervision over the lending operations, practices and procedures of the Corporation and its subsidiaries, subject to the direction of the Chief Executive Officer, the Chairman of the Board or the Board of Directors. The Chief Lending Officer may sign and execute in the name of the Corporation deeds, mortgages, bonds, contracts or other instruments authorized by the Board or any committee thereof empowered to authorize the same.
Section 12. Vice Presidents . Each Vice President shall have such powers and duties as shall be prescribed by the Chief Executive Officer, the Chairman of the Board or the Board of Directors. Any Vice President may sign and execute in the name of the Corporation deeds, mortgages, bonds, contracts or other instruments authorized by the Board or any committee thereof empowered to authorize the same.
Section 13. Secretary . It shall be the duty of the Secretary to act as secretary at all meetings of the Board of Directors and the shareholders and to attend and record the proceedings of such meetings in a book or books to be kept for that purpose; the Secretary shall see that all notices required to be given by the Corporation are duly given and served; the Secretary shall have the right to countersign documents and instruments and shall be custodian of the seal of the Corporation and shall affix the seal or cause to be affixed to all certificates of stock of the Corporation (unless the seal of the Corporation on such certificates shall be a facsimile, as hereinafter provided) and to all documents, the execution of which on behalf of the Corporation under its seal is duly authorized in accordance with the provision of these Bylaws. The Secretary shall have charge of the stock ledger and also of the other books, records and papers of the Corporation and shall see that the reports, statements and other documents required by law are properly kept and filed; and shall in general perform all the duties incident to the office of Secretary and such other duties as from time to time may be assigned to such person by the Chief Executive Officer, the Chairman of the Board or the Board of Directors.
Section 14. Assistant Treasurers and Assistant Secretaries . The Assistant Treasurers and the Assistant Secretaries shall perform such duties as shall be assigned to them by the Chief Financial Officer (who acts as the Treasurer) or Secretary, respectively, or by the Chief Executive Officer, the Chairman of the Board or the Board of Directors.
ARTICLE VI.
INDEMNIFICATION
Section 1. Mandatory Indemnification . At any time during which this Article VI and Article VI to the Amended and Restated Certificate are in effect, the Corporation shall indemnify any person who was, is, or is threatened to be made, a party to a proceeding (as hereinafter defined) by reason of the fact that he or she (i) is or was a director or officer of the Corporation or (ii) while a director or officer of the Corporation, is or was serving at the request of the Corporation as a director, officer, partner, manager, managing member, venturer, proprietor, trustee, employee, agent or similar functionary (each, a Corporate Functionary ) of another foreign or domestic corporation, partnership, limited liability company, joint venture,
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sole proprietorship, trust, employee benefit plan or other enterprise, in each of those capacities, against all expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such proceeding to the fullest extent permitted under the TBOC, the Amended and Restated Certificate and these Bylaws, as the same exist or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than such law permitted the Corporation to provide immediately prior to such amendment), and such indemnification shall continue as to a person who has ceased to be a director or officer of the Corporation or to serve in any of such other capacities at the time the indemnification or payment of expenses pursuant hereto is sought or at the time any proceeding relating thereto exists or is brought. As used in this Article VI, the term proceeding means any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, arbitrative, or investigative, any appeal in such an action, suit, or proceeding, any inquiry or investigation that could lead to such an action, suit, or proceeding.
Section 2. Permissive Indemnification . The Corporation may, in the sole and absolute discretion of the Board of Directors of the Corporation, also indemnify any employee or agent of the Corporation against all expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with a proceeding to the fullest extent permitted by the TBOC, the Amended and Restated Certificate and these Bylaws, as the same exist or may hereafter be amended.
Section 3. Advancement of Expenses . Each indemnitee under Section 1 of this Article VI shall have the right to be paid by the Corporation expenses (including, without limitation, attorneys fees) actually and reasonably incurred by such indemnitee in defending any proceeding in advance of its final disposition to the maximum extent permitted under the TBOC, the Amended and Restated Certificate and these Bylaws, as the same exist or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader advancement of expenses than such law permitted the Corporation to provide immediately prior to such amendment), subject only to such written affirmation or undertaking as may be required to be furnished by the claimant under the TBOC.
Section 4. Indemnitee Rights . The rights under this Article VI shall be contractual and as such shall inure to the benefit of any director or officer who is elected and accepts the position of director or officer of the Corporation or elects to continue to serve as a director or officer of the Corporation while this Article VI is in effect. In the event of the death of any person having a right of indemnification under the foregoing provisions, such right shall inure to the benefit of his or her heirs, executors, administrators and personal representatives. Notwithstanding the other provisions of this Article VI, to the extent that a director, officer or Corporate Functionary of the Corporation has been successful on the merits or otherwise in defense of any proceeding referred to in Section 1 of this Article VI, or in defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including attorneys fees) actually and reasonably incurred by such person in connection therewith.
Section 5. Determination of Indemnification . Any indemnification under Section 1 or Section 2 of this Article VI (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the director,
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officer, Corporate Functionary, employee or agent is proper in the circumstances because such person has met the applicable standard of conduct set forth in the TBOC. Such determination shall be made (i) by the Board of Directors or a committee thereof by a majority vote of a quorum consisting of directors who are disinterested and independent and were not parties to such proceeding, or (ii) if such a quorum is not obtainable, or, even if obtainable a quorum of disinterested and independent directors so directs, by independent legal counsel in a written opinion or (iii) by the shareholders. The Corporation shall not indemnify any persons enumerated in Section 1 of this Article VI against expenses, penalties or other payments incurred in respect of an administrative proceeding or action instituted by an appropriate bank regulatory agency if such proceeding or action results in a final order assessing civil money penalties or requiring affirmative action by an individual or individuals in the form of payments to the Corporation, except that in this instance, the Corporation may indemnify for reasonable expenses actually incurred in connection with such proceeding. In addition, no indemnification will be made of any person pursuant to this Article VI if any banking regulatory agency, in connection with a review of such indemnification, determines through appropriate administrative action that such indemnification shall not be made.
Section 6. Nonexclusivity . The rights conferred in this Article VI shall not be exclusive of any other right that any person may have or hereafter acquire under any statute, the Amended and Restated Certificate, these Bylaws, resolution of shareholders or disinterested directors, agreement or otherwise, both as to action in such persons official capacity and as to action in another capacity while holding such office.
Section 7. Claims for Indemnification : If a claim for indemnification or advancement of expenses hereunder or under the provision of Article VI of the Amended and Restated Certificate is not paid in full by the Corporation within sixty (60) days after a written claim has been received by the Corporation, the claimant may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim, and if successful in whole or in part, the claimant shall also be entitled to be paid the expenses of prosecuting such claim. It shall be a defense to any such action that such indemnification or advancement of costs of defense is not permitted under the TBOC or Section 5 of this Article VI, but the burden of proving such defense shall be on the Corporation. Neither the failure of the Corporation (including its Board of Directors or any committee thereof, independent legal counsel or shareholders) to have made its determination prior to the commencement of such action that indemnification of, or advancement of costs of defense to, the claimant is permissible in the circumstances nor any actual determination by the Corporation (including its Board of Directors or any committee thereof, independent legal counsel or shareholders) that such indemnification or advancement is not permissible shall be a defense to the action or create a presumption that such indemnification or advance is not permissible.
Section 8. Insurance . The Corporation may purchase or maintain insurance on behalf of any Corporate Functionary against any liability asserted against him or her and incurred by him or her in such a capacity or arising out of his or her status as a Corporate Functionary, whether or not the Corporation would have the power to indemnify him or her against the liability under the TBOC, the Amended and Restated Certificate or these Bylaws; provided , however , that if the insurance or other arrangement is with a person or entity that is not regularly engaged in the business of providing insurance coverage, the insurance or arrangement may
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provide for payment of a liability with respect to which the Corporation would not have the power to indemnify the person only if including coverage for the additional liability has been approved by the shareholders of the Corporation. Without limiting the power of the Corporation to procure or maintain any kind of insurance or arrangement, the Corporation may, for the benefit of persons indemnified by the Corporation, (i) create a trust fund, (ii) establish any form of self-insurance, (iii) secure its indemnification obligation by grant of any security interest or other lien on the assets of the Corporation, or (iv) establish a letter of credit, guaranty or surety arrangement. Any such insurance or other arrangement may be procured, maintained or established within the Corporation or its affiliates or with any insurer or other person deemed appropriate by the Board regardless of whether all or part of the stock or other securities thereof are owned in whole or in part by the Corporation. In the absence of fraud, the judgment of the Board as to the terms and conditions of such insurance or other arrangement and the identity of the insurer or other person participating in an arrangement shall be conclusive, and the insurance or arrangement shall not be voidable and shall not subject the directors approving the insurance or arrangement to liability, on any ground, regardless of whether directors participating in approving such insurance or other arrangement shall be beneficiaries thereof.
Section 9. Witnesses . Notwithstanding any other provisions of this Article VI, the Corporation shall pay or reimburse expenses incurred by any director, officer, employee or agent in connection with such persons appearance as a witness or other participation in a proceeding at a time when such person is not a named defendant or respondent in such proceeding.
Section 10. Repeal or Amendment . Any amendment, modification, alteration or repeal of this Article VI that in any way diminishes, limits, restricts, adversely affects or eliminates any right of an officer, director or Corporate Functionary or his or her respective successors to indemnification, advancement of expenses or otherwise shall be prospective only and shall not in any way diminish, limit, restrict, adversely affect or eliminate any such right with respect to any actual or alleged state of facts, occurrence, action or omission then or previously existing, or any proceeding previously or thereafter brought or threatened based in whole or in part upon any such actual alleged state of facts, occurrence, action or omission.
Section 11. Definitions of Certain Terms . For purposes of this Article VI, (a) references to the Corporation shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger, which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under the provisions of this Article VI with respect to the resulting or surviving corporation as such person would have with respect to such constituent corporation if its separate existence had continued; (b) references to other enterprises shall include employee benefit plans; (c) references to fines shall include any excise taxes assessed on a person with respect to an employee benefit plan; and (d) references to serving at the request of the Corporation shall include any service as a director, officer, employee or agent of the Corporation that imposes duties on, or involves services by, such director, officer, employee or agent, including with respect to an employee benefit plan, its participants or beneficiaries.
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ARTICLE VII.
NOTICES
Section 1. Whenever required by law, the Amended and Restated Certificate or these Bylaws, notice is to be given to any shareholder, director or committee member and if no provision is made as to how notice is to be given, notice may be given in writing, by mail, postage prepaid, addressed to the shareholder, director or committee member at the address that appears on the books of the Corporation or by any other method permitted by law. Any notice required or permitted to be given by mail will be deemed to be given at the time it is deposited in the United States mail with postage thereon prepaid. Notice to shareholders, directors or committee members may also be given by a nationally recognized overnight delivery or courier service and will be deemed delivered when the notice is received by the proper recipient, or, if earlier, one day after the notice is sent by the overnight delivery or courier service. Notice from the Corporation may also be given to any shareholder, director or committee member of the Corporation by electronic transmission. Such shareholder, director or committee member may specify the form of electronic transmission to be used to communicate notice. Notice by electronic transmission is deemed to be given when the notice is (i) transmitted to a facsimile number provided by such shareholder, director or committee member for the purpose of receiving notice; (ii) transmitted to an electronic mail address provided by the shareholder, director or committee member for the purpose of receiving notice; (iii) posted on an electronic network, and a message is sent to the shareholder, director or committee member at the address provided by the shareholder, director or committee member for the purpose of alerting the shareholder, director or committee member of a posting; or (iv) communicated to the shareholder, director or committee member by any other form of electronic transmission consented to by the shareholder, director or committee member.
Section 2. Whenever any notice is required to be given to any shareholder, director or committee member of the Corporation as required by law, the Amended and Restated Certificate, or these Bylaws, a written waiver signed by the person or persons entitled to notice or a waiver by electronic transmission by the person entitled to notice, given before or after the time stated in the notice, will be equivalent to giving the notice. Attendance of a shareholder, director or committee member at a meeting will constitute a waiver of notice of that meeting, except when the shareholder, director or committee member attends for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business on the ground that the meeting has not been lawfully called or convened or, in the case of a shareholder, the lack of proper notice to the shareholders. Neither the business to be transacted at a regular or special meeting of the Corporations shareholders, the Board or a committee of the Board nor the purpose of such a meeting is required to be specified in a written waiver of notice or a waiver by electronic transmission unless required by the Amended and Restated Certificate or these Bylaws.
ARTICLE VIII.
CAPITAL STOCK
Section 1. Certificates for Shares . Certificates representing shares of stock of each class or series of stock of the Corporation, whenever authorized by the Board of Directors, shall be in such form as shall be approved by the Board. The certificates representing shares of stock of each class or series of stock shall be issued in consecutive order and shall be numbered in the
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order of their issue, shall be signed by, or in the name of, the Corporation by the Chairman of the Board or the Chief Executive Officer or a Vice President and by the Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer of the Corporation, and may be sealed with the corporate seal of the Corporation, which may be by a facsimile thereof. Any or all such signatures may be facsimiles if countersigned by a transfer agent or registrar. Although any officer, transfer agent or registrar whose manual or facsimile signature is affixed to such a certificate ceases to be such officer, transfer agent or registrar before such certificate has been issued, it may nevertheless be issued by the Corporation with the same effect as if such officer, transfer agent or registrar were still such at the date of its issue.
If the Corporation is authorized to issue shares of more than one class or series of stock, each certificate representing shares issued by the Corporation (i) shall conspicuously set forth on the face or back of the certificate a full statement of (A) all of the designations, preferences, limitations and relative rights of the shares of each class authorized to be issued and (B) if the Corporation is authorized to issue shares of any preferred or special class or series, the variations in the relative rights and preferences of the shares of each such series to the extent they have been fixed and determined and the authority of the Board of Directors to fix and determine the relative rights and preferences of subsequent series; or (ii) shall conspicuously state on the face or back of the certificate that (i)(A) the information required by clause (A) above is stated in the Corporations governing documents and (B) the Corporation will furnish a copy of such information to the record holder of the certificate without charge on written request to the Corporation at its principal place of business or registered office.
The Board of Directors may authorize the issue of some or all of the shares without certificates. Within a reasonable time after the issue or transfer of shares without certificates, the Corporation shall send the shareholder a record containing the information required on certificates by the TBOC.
If the Corporation has by its Amended and Restated Certificate limited or denied the preemptive rights of shareholders of the Corporation to acquire unissued or treasury shares of the Corporation every certificate representing shares issued by the Corporation (i) shall conspicuously set forth upon the face or back of the certificate a full statement of the limitation or denial of preemptive rights contained in the Amended and Restated Certificate; or (ii) shall conspicuously state on the face or back of the certificate (A) that there is on file in the office of the Secretary of State of the State of Texas a full statement of the limitation or denial of preemptive rights contained in the Amended and Restated Certificate, and (B) that the Corporation will furnish a copy of such statement without charge upon written request to the Corporation at its principal place of business or registered office.
The stock ledger and blank share certificates shall be kept by the Secretary or by a transfer agent or by a registrar or by any other officer or agent designated by the Board.
Section 2. Transfer of Shares . Stock of the Corporation shall be transferable in the manner prescribed by applicable law and in these Bylaws. Transfers of stock shall be made on the books of the Corporation, and in the case of certificated shares of stock, only by the person named in the certificate or by such persons attorney lawfully constituted in writing and upon the surrender of the certificate therefor, properly endorsed for transfer and payment of all necessary
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transfer taxes; or, in the case of uncertificated shares of stock, upon receipt of proper transfer instructions from the registered holder of the shares and upon payment of all necessary transfer taxes and compliance with appropriate procedures for transferring shares in uncertificated form; provided, however, that such surrender and endorsement, compliance or payment of taxes shall not be required in any case in which the officers of the Corporation shall determine to waive such requirement. With respect to certificated shares of stock, every certificate exchanged, returned or surrendered to the Corporation shall be marked Cancelled, with the date of cancellation, by the Secretary or Assistant Secretary of the Corporation or the transfer agent thereof. No transfer of stock shall be valid as against the Corporation for any purpose until it shall have been entered in the stock records of the Corporation by an entry showing from and to who transferred.
Section 3. Addresses of Shareholders . Each shareholder shall designate to the Secretary or transfer agent of the Corporation an address at which notices of meetings and all other corporate notices may be served or mailed to such person, and, if any shareholder shall fail to designate such address, corporate notices may be served upon such person by mail directed to such person at such persons post office address, if any, as the same appears on the share record books of the Corporation or at such persons last known post office address.
Section 4. Lost, Destroyed and Mutilated Certificates . The holder of any share of stock of the Corporation shall immediately notify the Corporation of any loss, theft, destruction or mutilation of the certificate therefor; the Corporation may issue to such holder a new certificate or certificates for shares, upon the surrender of the mutilated certificate or, in the case of loss, theft or destruction of the certificate, upon satisfactory proof of such loss, theft or destruction; the Board of Directors, or a committee designated thereby, or the transfer agents and registrars for the stock, may, in their discretion, require the owner of the lost, stolen or destroyed certificate, or such persons legal representative, to give the Corporation a bond in such sum and with such surety or sureties as they may direct to indemnify the Corporation and said transfer agents and registrars against any claim that may be made on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.
Section 5. Regulations . The Board of Directors may make such additional rules and regulations as it may deem expedient concerning the issue and transfer of certificates representing shares of stock of each class of the Corporation and may make such rules and take such action as it may deem expedient concerning the issue of certificates in lieu of certificates claimed to have been lost, destroyed, stolen or mutilated.
Section 6. Fixing Date for Determination of Shareholders of Record . In order that the Corporation may determine the shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournments thereof, or entitled to receive payment of any dividend or other distribution or allotment or any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall not be more than sixty (60) nor less than ten (10) days before the date of such meeting, nor more than sixty (60) days prior to any other action. A determination of shareholders entitled to notice of or to vote at a meeting of the shareholders shall apply to any adjournment of the meeting, except where the determination has been made through the closing of stock transfer books and the stated period of closing has expired, in which case, that the Board of Directors may fix a new record date for the adjourned
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meeting. If no record date is fixed for the determination of shareholders of the Corporation entitled to notice of or to vote at a meeting of shareholders of the Corporation, or shareholders of the Corporation entitled to receive payment of a dividend on shares or of interest or principal on indebtedness, the close of business on the day next preceding the day on which notice of such meeting is given or, if notice is waived, at the close of business the day next preceding the day on which the meeting is held, or the date on which the resolutions of the Board of Directors declaring such dividend or authorizing such payment of principal or interest is adopted, as the case may be, shall be the record date for such determination of the shareholders of the Corporation.
Section 7. Fiscal Year . The fiscal year of the Corporation shall be fixed by resolution of the Board of Directors.
Section 8. Corporate Seal . The corporate seal shall have inscribed thereon the name of the Corporation, the year of its organization and the words Corporate Seal, Texas. The seal may be used by causing it or a facsimile thereof to be impressed or affixed or in any other manner reproduced. Unless otherwise provided in these Bylaws or by law, it shall not be mandatory that the corporate seal or its facsimile be impressed or affixed on any document executed on behalf of the Corporation.
ARTICLE IX.
FUNDAMENTAL ACTIONS
Unless otherwise agreed by two-thirds ( 2 / 3 rds ) of the entire Board of Directors, any fundamental action defined in Section 21.364 of the TBOC or any fundamental business transaction as set forth in Subchapter J of Chapter 21 of the TBOC (and its successor provisions) shall require, in addition to any voting requirement of the TBOC, the vote of at least (i) two-thirds ( 2 / 3 rds ) of the outstanding shares of any class entitled to vote on the fundamental action as a class by the terms of the Amended and Restated Certificate and/or these Bylaws and (ii) two-thirds ( 2 / 3 rds ) of the outstanding Voting Stock. Such affirmative vote, as provided in this Article IX, shall be in lieu of any lesser vote of the holders of the stock of the Corporation otherwise provided by law or any agreement or contract to which the Corporation is a party, and shall be in addition to any class vote to which any class of stock of the Corporation may be entitled by law.
ARTICLE X.
AMENDMENT OF BYLAWS
Section 1. Any Bylaw (other than this Bylaw) may be adopted, repealed, altered or amended, and new Bylaw provisions may be adopted, by a majority of the entire Board of Directors at any meeting thereof, provided that such proposed action in respect thereof shall be stated in the notice of such meeting and any such action by the Board of Directors shall be effective without the necessity for any approval or ratification by the shareholders of the Corporation. The shareholders of the Corporation shall have the power to amend, alter or repeal any provision of these Bylaws only to the extent and in the manner provided in the Amended and Restated Certificate.
IBG Second Amended Bylaws |
19 |
ARTICLE XI.
MISCELLANEOUS
Section 1. Execution of Documents . In addition to the authority granted in these Bylaws, the Board of Directors shall designate the officers, employees and agents of the Corporation who shall have power to execute and deliver deeds, contracts, mortgages, bonds, debentures, checks, drafts and other orders for the payment of money and other documents for and in the name of the Corporation and may authorize such officers, employees and agents to delegate such power (including authority to redelegate) by written instrument to other officers, employees or agents of the Corporation. Such delegation may be by resolution or otherwise and the authority granted shall be general or confined to specific matters, all as the Board may determine. In the absence of such designation referred to in the first sentence of this Section, the officers of the Corporation shall have such power so referred to, to the extent incident to the normal performance of their duties.
Section 2. Deposits . All funds of the Corporation not otherwise employed shall be deposited from time to time to the credit of the Corporation or otherwise as the Board of Directors or any officer of the Corporation to whom power in that respect shall have been delegated by the Board shall select.
Section 3. Checks . All checks, drafts and other orders for the payment of money out of the funds of the Corporation, and all notes or other evidences of indebtedness of the Corporation, shall be signed on behalf of the Corporation in such manner as required in such instrument as shall from time to time be determined by resolution of the Board of Directors or of any committee thereof empowered to authorize the same.
Section 4. Dividends . the Board of Directors may declare and the Corporation may pay dividends on its outstanding shares in cash, property or its own shares pursuant to law and subject to the provisions of the Amended and Restated Certificate.
Section 5. Reserves . The Board of Directors may by resolution create a reserve or reserves out of earned surplus for any proper purpose or purposes, and may abolish any such reserve in the same manner.
Section 6. Proxies in Respect of Stock or Other Securities of Other Corporations . In addition to the designation made to the Chief Executive Officer in Article V, Section 7, the Board of Directors may designate officers of the Corporation who shall have authority from time to time to appoint an agent or agents of the Corporation to exercise in the name and on behalf of the Corporation the powers and rights which the Corporation may have as the holder of stock or other securities in any other corporation or other entity, and to vote or consent in respect of such stock or securities; such designated officers may instruct the person or persons so appointed as to the manner of exercising such powers and rights; and such designated officers may execute or cause to be executed in the name and on behalf of the Corporation and under its corporate seal, or otherwise, such written proxies, powers of attorney or other instruments as they may deem necessary or proper in order that the Corporation may exercise its said powers and rights.
IBG Second Amended Bylaws |
20 |
Section 7. Invalid Provisions . If any part of these Bylaws is held invalid or inoperative for any reason, the remaining parts, so far as is possible and reasonable, shall remain valid and operative.
Section 8. Headings . The headings used in these Bylaws are for convenience only and do not constitute matter to be construed in the interpretation of these Bylaws.
Section 9. Facsimile Signatures . In addition to the provisions for the use of facsimile signatures elsewhere specifically authorized in these Bylaws, facsimile signatures of any officer or officers of the Corporation may be used whenever and as authorized by the Board of Directors.
Section 10. Reliance upon Books, Reports and Records . A member of the Board of Directors, or a member of any committee designated by the Board of Directors, shall, in the performance of such persons duties, be protected to the fullest extent permitted by law in relying upon the records of the Corporation and upon information, opinion, reports or statements presented to the Corporation.
Section 11. Application of Bylaws . In the event that any provisions of these Bylaws is or may be in conflict with any law of the United States or the State of Texas or of any other governmental body or power having jurisdiction over this Corporation, or may apply, such provision of these Bylaws shall be inoperative to the extent only that the operation thereof unavoidably conflicts with such law, and shall in all other respects be in full force and effect.
(END OF BYLAWS)
IBG Second Amended Bylaws |
21 |
These Bylaws were adopted by the Board of Directors of Independent Bank Group, Inc. on February 21, 2013, and to evidence such adoption of the Chief Executive Officer was ordered to execute same on behalf of the Corporation and the Secretary was ordered to Attest to the signature of the Chief Executive Officer.
INDEPENDENT BANK GROUP, INC. | ||
By: |
/s/ David R. Brooks |
|
David R. Brooks | ||
Chairman and Chief Executive Officer |
Attest:
/s/ Jan C. Webb |
||
Jan C. Webb, Executive Vice President and Secretary |
IBG Second Amended Bylaws |
22 |
EXHIBIT 4.2
Warrant No. | To Purchase | |||
Shares of Common Stock |
FORM OF
WARRANT
TO PURCHASE SHARES OF COMMON STOCK
OF
INDEPENDENT BANK GROUP, INC.
PURCHASE PRICE PER SHARE: $55.00
THIS CERTIFIES that, for value received, (the Registered Owner) is entitled, subject to the terms and conditions of this Warrant, until the Expiration Date (as defined herein), to purchase shares of the common stock, $1.00 par value (the Common Stock), of Independent Bank Group, Inc. (the Company) from the Company at $55.00 per share.
Section 1. Exercise . The purchase rights represented by this Warrant are exercisable at the option of the Registered Owner, in whole or in part, at any time prior to 5:00 pm (CST) on December 23, 2018 (the Expiration Date). The Expiration Date is subject to amendment pursuant to Sections 8 and 9 hereof.
Section 2. Method of Exercise . Subject to the provisions hereof, the Warrant may be exercised by delivery of this Warrant to the Company with the exercise form duly executed and payment of the purchase price (in immediately available funds) for the shares purchased.
Section 3. Companys Covenants as to Common Stock . Shares of Common Stock deliverable on the exercise of this Warrant shall, at delivery, be fully paid and non-assessable.
Section 4. Limited Rights of Owner . This Warrant does not entitle the Registered Owner to any voting rights or other rights as a shareholder of the Company, or to any other rights whatsoever except the rights herein expressed. No dividends are payable or will accrue on this Warrant or the shares purchasable hereunder until, and except to the extent that, this Warrant is exercised.
Section 5. Transfer/Assignability . This Warrant shall not be assignable or otherwise transferable except by will or by the laws of decent and distribution or pursuant to a qualified domestic relations order.
Section 6. Recognition of Registered Owner . Prior to due presentment for registration of transfer of this Warrant, the Company may treat the registered owner as the person exclusively entitled to receive notices and otherwise to exercise rights hereunder.
Section 7. Adjustment of Shares Subject to Purchase . If the Company, by stock dividend, split, reverse split, or reclassification of shares, changes as a whole the outstanding Common Stock into a different number or class of shares, then:
(1) the number and class of shares so changed shall, for the purposes of this Warrant, replace the shares outstanding immediately prior to the change; and
(2) the Warrant purchase price in effect, and the number of shares purchasable under this Warrant, immediately prior to the date upon which the change becomes effective, shall be adjusted proportionately (with the purchase price being adjusted to the nearest cent). Irrespective of any adjustment or change in the Warrant purchase price or the number of shares purchasable under this Warrant, the Warrants theretofore issued may continue to express the Warrant purchase price per share and the number of shares purchasable as were expressed in the Warrants when initially issued.
On the happening of an event requiring an adjustment of the Warrant purchase price or the shares purchasable hereunder, the Company shall forthwith give written notice to the Registered Owner stating the adjusted Warrant purchase price and the adjusted number and kind of securities or other property purchasable hereunder resulting from the event and setting forth in reasonable detail the method of calculation and the facts upon which the calculation is based. The board of directors of the Company, acting in good faith, shall determine the calculation.
Section 8. Capital Call . Should any governmental agency which has jurisdiction over the Companys subsidiary, Independent Bank, McKinney, Texas (the Bank) require the Bank to increase its capital, the Expiration Date shall be amended to the date set forth by the directors of the Bank at their sole discretion or as set forth by the governmental agency mandating the increase of capital. Failure to exercise the Warrant prior to such amended Expiration Date (whether as set forth herein or as amended pursuant to a regulatory agency mandated increase in capital) shall cause the termination of the Warrant and the holder hereof shall have no further right to exercise the Warrant.
Section 9. Merger or Dissolution . In case of a merger or consolidation in which the shareholders of the Company are entitled to receive consideration, or a voluntary or involuntary dissolution, liquidation, receivership or winding up of the Company is at any time proposed, the Company shall, to the extent feasible, give at least 10 days written notice to the Registered Owner prior to the record date as of which holders of Common Stock will be entitled to receive consideration or distributions as a result of the proposed transaction. Such notice shall contain: (1) the date on which the transaction is to take place; (2) the record date as of which holders of Common Stock will be entitled to receive consideration or distributions as a result of the transaction; (3) a brief description of the transaction; (4) a brief description of the consideration or distributions to be made to holders of Common Stock as a result of the transaction; and (5) an estimate of the fair value of the consideration or distributions. In the event of such transaction, the Expiration Date shall be amended to be the effective date of such transaction. Failure to exercise the Warrant prior to such amended Expiration Date shall cause the termination of the Warrant and the holder hereof shall have no further right to exercise the Warrant.
Section 10. Method of Giving Notice; Extent Required . Notices shall be given in writing by hand delivery, electronic mail, or by first class mail, postage prepaid, addressed to the Registered Owner at the address appearing in the records of the Company. No notice to a holder of this Warrant is required except as specified in Sections 7 and 8 above.
Section 11. Access to Information . The Company will provide an opportunity to any Registered Owner of this Warrant to ask questions of management of the Company and to obtain information to the extent the Company has the same in its possession prior to any exercise of the Registered Owners rights to purchase Common Stock under this Warrant. Requests for information and any other questions concerning the business and affairs of the Company should be directed to the Chairman of the Board of Directors of the Company at its main business offices.
Section 12. Shareholder Agreements . Any shares of Common Stock acquired pursuant to the exercise of the Warrant shall be subject to the Amended and Restated Shareholders Agreement, as amended, and the Drag Along and Tag Along Rights Agreement to which the Registered Owner is a party.
Section 13. No Registration . This warrant and any securities acquired upon the exercise of this warrant have not been registered under: (a) the Securities Act of 1933, as amended, in reliance upon the exemptions from registration provided in sections 3 and 4 of such act; or (b) any state securities laws in reliance upon applicable exemptions
2
thereunder. This warrant and any securities acquired upon the exercise of this warrant must be acquired for investment only for the account of the investor and may not be sold or transferred in the absence of an effective registration of them under such act and all other applicable securities laws or an opinion of counsel (or such other evidence) acceptable to the company or its representatives that such sale or transfer would not violate applicable securities laws or regulations. At the time this warrant is exercised, the holder is entitled to receive updated financial information on the Company.
Dated effective December 23, 2008
INDEPENDENT BANK GROUP, INC. | ||
By: |
/s/ DAVID R. BROOKS |
|
David R. Brooks | ||
Chairman of the Board |
ATTEST: | ||
/s/ JAN WEBB |
||
Jan Webb | ||
Secretary |
3
EXERCISE FORM
The undersigned hereby: (1) irrevocably subscribes for shares of the Companys Common Stock pursuant to this Warrant, and encloses payment of $ therefor; (2) requests that a certificate for the shares be issued in the name of the undersigned and delivered to the undersigned at the address below; and (3) if such number of shares is not all of the shares purchasable hereunder, that a new Warrant of like tenor for the balance of the remaining shares purchasable hereunder be issued in the name of the undersigned and delivered to the undersigned at the address below.
Printed Name: | ||
(Signature. Please sign exactly as name appears on Warrant) | ||
Date: | ||
Address: | ||
Taxpayer ID No. |
4
SCHEDULE OF DIFFERENCES TO
FORM OF WARRANT TO PURCHASE
SHARES OF COMMON STOCK OF
INDEPENDENT BANK GROUP, INC.
Warrant No. |
Warrant Holder |
Number of Shares
of Common Stock Available for Purchase (Post Stock Split) |
||
001 | Vincent J. Viola | 93,091 | ||
002 | David R. Brooks | 23,270 | ||
003 | M. Brian Aynesworth, III | 5,818 | ||
004 | Daniel W. Brooks | 4,656 | ||
005 | Brian E. Hobart | 4,218 | ||
006 | William E. Fair | 5,818 | ||
007 | Martin H. Englander | 1,891 | ||
008 | Jack M. Radke | 1,747 | ||
009 | Scott Bandemir | 1,456 | ||
010 | Richard Ruschhaupt | 2,909 | ||
011 | Joe M. Joplin | 1,309 | ||
012 | Jan C. Webb | 1,309 | ||
013 | Kevin Griffin | 1,018 | ||
014 | David Wood | 726 | ||
015 | Robert C. Rigney | 582 | ||
016 | Johnny Pat Bratcher | 435 | ||
017 | T. Bob McKnight | 291 |
Schedule of Differences
|
1717 Main Street, Suite 3700
Dallas, Texas 75201 214.659.4400 Phone 214.659.4401 Fax andrewskurth.com |
EXHIBIT 5.1
[ ], 2013
Independent Bank Group, Inc.
1600 Redbud Boulevard, Suite 400
McKinney, Texas 75069
Ladies and Gentlemen:
We have acted as special counsel to Independent Bank Group, Inc., a Texas corporation (the Company ), in connection with the preparation and filing of the Companys Registration Statement on Form S-1 (Registration No. 333-[ ]) (the Registration Statement ), as initially filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the Securities Act ), on February [ ], 2013 (the Registration Statement ), relating to the registration of the offering for sale of an aggregate of 3,680,000 shares (the Shares ) of the Companys common stock, par value $0.01 per share (the Common Stock ), which includes 480,000 shares of the Common Stock subject to the underwriters over-allotment option. The Shares are proposed to be sold to the underwriters pursuant to an underwriting agreement to be entered by and among the Company and Sandler ONeill + Partners, L.P., for itself and as representative for the other underwriters to be named therein (the Underwriting Agreement ). This opinion letter is being delivered in connection with the filing of the Registration Statement with the Commission.
As the basis for the opinion expressed herein, we have examined the Registration Statement, the form of Underwriting Agreement as most recently filed as an exhibit to the Registration Statement, such statutes, including the Texas Business Organizations Code, as amended (the TBOC ), regulations, corporate records and documents, including the Amended and Restated Certificate of Formation of the Company and the Second Amended and Restated Bylaws of the Company, and other instruments and documents and have made such other investigations as we have deemed necessary or advisable for the purposes of rendering the opinion expressed herein. As to questions of fact material to this opinion, we have relied, with your concurrence, upon certificates of representatives of the Company and public officials.
In making such examination and rendering the opinion expressed herein, we have assumed, but have not verified, (i) that all signatures on documents examined by us are genuine, (ii) the legal capacity of all natural persons, (iii) the authenticity and completeness of all documents submitted to us as originals and (iv) the conformity to authentic and complete original documents of all documents submitted to us as certified, conformed or photostatic copies.
Austin Beijing Dallas Houston London New York The Woodlands Washington, DC
Independent Bank Group, Inc.
[ ], 2013
Page 2
Based upon the foregoing, but assuming no responsibility for the accuracy or the completeness of the data supplied by the Company and subject to the qualifications, limitations and assumptions set forth herein, and having due regard for such legal considerations as we deem relevant, we are of the opinion that, when the Registration Statement has been declared effective by the Commission and the Shares have been issued and delivered pursuant to and in accordance with the Underwriting Agreement against payment of the consideration set forth therein, the Shares will be validly issued, fully paid, and nonassessable.
We express no opinion other than as to the TBOC.
This opinion speaks only as of its date. We disclaim any undertaking to advise you of any subsequent changes of the facts stated or assumed herein or any subsequent changes in applicable law after the effective date of the Registration Statement. We express no opinion with respect to any specific legal issues other than those explicitly addressed herein.
We hereby consent to the filing by you of this opinion as an exhibit to the Registration Statement and the use of our name under the caption Legal Matters in the Registration Statement. In giving these consents, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act and the rules and regulations of the SEC promulgated thereunder.
Very truly yours, |
Exhibit 10.1
LOAN AND SUBORDINATED DEBENTURE
PURCHASE AGREEMENT
BETWEEN
TIB THE INDEPENDENT BANKERSBANK
AND
INDEPENDENT BANK GROUP, INC.
Dated as of December 23, 2008
TABLE OF CONTENTS
Page | ||||
Article I THE LOAN AND THE NOTES |
2 | |||
1.1 Certain Definitions |
2 | |||
1.2 The Loans |
4 | |||
1.3 The Notes |
5 | |||
1.4 General Payment Provisions. |
5 | |||
1.5 [reserved] |
8 | |||
1.6 Determination of Interest Rate on Advances |
8 | |||
1.7 Collateral |
8 | |||
1.8 Expenses |
8 | |||
1.9 The Closing |
9 | |||
Article II CONDITIONS |
9 | |||
2.1 Closing Deliveries and Payments |
9 | |||
2.2 Other Conditions of Borrowing |
11 | |||
2.3 Certain Post-Closing Deliveries. |
12 | |||
Article III REPRESENTATIONS AND WARRANTIES |
12 | |||
3.1 Organization and Status |
12 | |||
3.2 Financial Statements |
12 | |||
3.3 Enforceability |
12 | |||
3.4 Litigation |
13 | |||
3.5 Title and Rights |
13 | |||
3.6 Regulation U; Business Purpose |
13 |
3.7 Capital Stock of the Borrowers Subsidiaries |
13 | |||
3.8 Regulatory Enforcement Actions |
13 | |||
3.9 Reserve for Possible Loan and Lease Losses |
14 | |||
3.10 No Liens |
14 | |||
3.11 Compliance |
14 | |||
3.12 Restrictions on the Borrower |
14 | |||
3.13 No Claims Against the Bank |
14 | |||
3.14 Statements by Others |
14 | |||
3.15 Continuing Representations |
15 | |||
3.16 Environment |
15 | |||
3.17 Solvency |
15 | |||
3.18 Subordination |
15 | |||
3.19 Pledged Stock |
15 | |||
3.20 No Misstatement |
15 | |||
3.21 Investment Status |
15 | |||
3.22 ERISA |
16 | |||
Article IV COVENANTS |
16 | |||
4.1 Negative Covenants |
16 | |||
4.2 Affirmative Covenants |
19 | |||
Article V EVENTS OF DEFAULT; DEFAULT; RIGHTS UPON DEFAULT |
25 | |||
5.1 Events of Default |
25 | |||
5.2 Remedies of the Lender |
28 | |||
5.3 Protective Advances |
28 | |||
5.4 Other Remedies |
28 |
5.5 No Lender Liability |
28 | |||
5.6 Lenders Fees and Expenses |
29 | |||
5.7 Limitation of Remedies with Respect to the Subordinated Debt |
29 | |||
Article VI MISCELLANEOUS |
29 | |||
6.1 Waiver By the Lender |
29 | |||
6.2 Entire Agreement and Modifications of Agreement |
29 | |||
6.3 Notices |
30 | |||
6.4 Facsimile; Counterparts |
30 | |||
6.5 Assignment and Participation |
30 | |||
6.6 Successors and Assigns |
31 | |||
6.7 Governing Law; Venue |
31 | |||
6.8 Severability |
32 | |||
6.9 Survival of Representations and Warranties |
32 | |||
6.10 Extensions and Renewals |
33 | |||
6.11 Release; Indemnification |
33 | |||
6.12 Certain UCC and Accounting Terms; Interpretations |
33 | |||
6.13 Additional Actions |
34 | |||
6.14 Revival of Liabilities |
34 | |||
6.15 Change of Control |
34 | |||
6.16 Brokerage Commissions |
34 | |||
6.17 Publicity |
35 | |||
6.18 No Third Party Beneficiary |
35 | |||
6.19 Captions |
35 | |||
6.20 Knowledge; Discretion |
35 |
SCHEDULES: |
Schedule 3.1 Subsidiaries |
Schedule 4.1(a) Permitted Debt |
Schedule 4.1(d) Permitted Guaranties |
Schedule 4.1(e) Permitted Acquisitions |
Schedule 5.1 Liens |
EXHIBITS: |
Exhibit A Term Promissory Note |
Exhibit B Subordinated Debenture |
Exhibit C Confirmation |
Exhibit D Form of Pledge and Security Agreement |
Exhibit E Opinion of Borrowers Counsel |
Exhibit F Quarterly Compliance Certificate |
Exhibit G Purchase Agreement |
iv
LOAN AND SUBORDINATED DEBENTURE
PURCHASE AGREEMENT
This LOAN AND SUBORDINATED DEBENTURE PURCHASE AGREEMENT (the Agreement), dated as of this 23rd day of December, 2008, is entered into between TIB THE INDEPENDENT BANKERSBANK, a Texas state banking association and member of the Federal Reserve System having a place of business at 350 Phelps Drive, Irving, Texas 75038 (the Lender), and INDEPENDENT BANK GROUP, INC., a Texas corporation, having its principal place of business at 2530 El Dorado Parkway, Suite 200, McKinney, Texas 75070 (the Borrower).
RECITALS:
A. The Borrower is a bank holding company that owns 100% of the outstanding capital stock of Independent Bank, a Texas state banking association with its main banking premises located at 3090 Craig Drive, McKinney, Texas 75070 (the Bank). The outstanding capital stock of the Bank may be referred to as the Bank Shares.
B. The Borrower has entered into an agreement whereby (i) Independent Bank Group Central Texas, Inc., a Texas corporation (IBG Central Texas) will be merged with and into the Borrower with the Borrower surviving the merger (the Merger); and (ii) Independent Bank, a Texas bathing association with its main banking premises located in Waco, Texas, the wholly-owned subsidiary of IBG Central Texas, will be merged with and into the Bank with the Bank surviving the merger (the Bank Merger).
C. This Agreement contemplates that the Lender will provide the Borrower with two (2) credit facilities in the aggregate principal amount of Sixteen Million Five Hundred Thousand Dollars ($16,500,000) consisting of: (i) a term loan in the principal amount of Twelve Million Dollars ($12,000,000) (the Term Loan), and (ii) a subordinated debt facility in the aggregate principal amount of Four Million Five Hundred Thousand Dollars ($4,500,000) (the Subordinated Debt). The Term Loan and the Subordinated Debt may be referred to collectively as the Loans. The proceeds from the Term Loan and the Subordinated Debt shall be used to pay off the existing term loans (Existing Term Loans) of Borrower and of IBG Central Texas, to finance the Merger and the Bank Merger, and for general capital needs. In addition, the Subordinated Debt is intended to qualify as Tier 2 capital under applicable rules and regulations promulgated by the Board of Governors of the Federal Reserve System (the FRB).
D. The Lender is willing to lend to the Borrower up to an aggregate principal amount of Sixteen Million Five Hundred Thousand Dollars ($16,500,000) under the Loans in accordance with the terms, subject to the conditions and in reliance on the representations, warranties and covenants set forth herein and in the other documents and instruments entered into or delivered in connection with or relating to the Loans (collectively, including this Agreement, the Loan Documents).
1
NOW, THEREFORE, in consideration of the mutual representations, warranties, covenants and agreements hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
AGREEMENT:
ARTICLE I
THE LOAN AND THE NOTES
1.1 Certain Definitions. As used in this Agreement, the following terms shall have the following definitions.
(a) Accountant shall mean a national recognized firm of certified public accountants selected by Borrower as shall from time to time audit Borrower.
(b) Advance shall mean any advance made with respect to the Loans and shall include the initial Advances made at Closing (as defined below), other new Advances and Advances that result from the renewal of previous Advances.
(c) Affiliate(s) shall mean, with respect to any Person, such Persons immediate family members, partners, members or parent and subsidiary corporations, and any other Person directly or indirectly controlling, controlled by, or under common control with, said Person, and their respective Affiliates, members, shareholders, directors, officers, employees, agents and representatives.
(d) Business Day shall mean for all purposes other than as covered by clause (ii) hereof, any day, other than Saturday, Sunday, a day that is a legal holiday under the laws of the State of Texas or any other day on which banking institutions located in Texas are authorized or required by law or other governmental action to close.
(e) Early Termination Date means the date, pursuant to Section 5.7 of this Agreement, upon which, whether by notice or by right hereunder, the Lenders obligation to make Advances under the Subordinated Debt is terminated.
(f) Employee Benefit Plan shall mean an employee pension benefit plan (as defined in Section 3(2) of ERISA) that is maintained by the Borrower or an ERISA Affiliate.
(g) ERISA means the Employee Retirement Income Security Act of 1974, as amended from time to time.
(h) ERISA Affiliate means any trade or business (whether or not incorporated) that, together with the Borrower, is treated as a single employer under Section 414(b) or (c) of the Code or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Section 414 of the Code.
(i) ERISA Event means (a) any reportable event, as defined in Section 4043 of ERISA or the regulations issued thereunder with respect to a Plan (other than an event for which the 30-day notice period is waived); (b) the existence with respect to any Plan of an accumulated funding deficiency (as defined in Section 412 of the Code or Section 302 of
2
ERISA), whether or not waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan; (d) the incurrence by the Borrower or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to the termination of any Plan; (e) the receipt by the Borrower or any ERISA Affiliate from the Pension Benefit Guaranty Corporation (PBGC) or a plan administrator of any notice relating to an intention to terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f) the incurrence by the Borrower or any of its ERISA Affiliates of any liability with respect to the withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g) the receipt by the Borrower or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA.
(j) Financial Institution Subsidiary shall mean the Bank and any other FDIC-insured financial institution that is directly or indirectly owned by Borrower.
(k) Interest Period shall mean a period of 90 days, plus or minus one or two days, with respect to a Prime Rate Advance; provided that no Interest Period shall extend beyond the Maturity Date (as defined below) for any Loan or such earlier date on which amounts outstanding under any such Loan shall become due and payable on account of acceleration by the Lender in accordance with the terms of this Agreement.
(1) Multiemployer Plan means a multiemployer plan as defined in Section 4001(a)(3) of ERISA.
(m) Person shall mean an individual, a corporation (whether or not for profit), a partnership, a limited liability company, a joint venture, an association, a trust, an unincorporated organization, a government or any department or agency thereof (including a Governmental Agency, as defined below) or any other entity or organization.
(n) Plan means any employee pension benefit plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an employer as defined in Section 3(5) of ERISA.
(o) Prime Rate shall mean the rate of interest (expressed as a percentage per annum) most recently announced or published publicly from time to time by the Wall Street Journal as the prime rate or base rate of interest, which is not necessarily the lowest or most favorable rate of interest charged by the Lender on commercial loans at any one time. The rate of interest shall change automatically and immediately as and when the prime rate or base rate shall change, without notice to the Borrower, and any notice to which it may be entitled is hereby waived, and any such change in the Lenders prime rate or base rate shall not affect any of the terms and conditions of any of the Notes (as defined below) or this Agreement, all of which shall remain in full force and effect.
3
(p) Prime Rate Advance shall mean an Advance that bears interest based on the Prime Rate.
(q) Subordinated Debt Termination Date means the earliest to occur of (i) December 24, 2016 or (ii) the Early Termination Date.
(r) Subsidiary means the Bank and any other corporation or other entity of which any of the following is directly or indirectly owned by the Borrower: shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all equivalent ownership interests in a Person that is not a corporation, and any and all warrants, options or other rights to purchase any of the foregoing.
(s) Swap Agreement means any agreement with respect to any swap, forward, future or derivative transaction or option or similar agreement involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or any similar transaction or any combination of these transactions; provided that no phantom stock or similar plan providing for payments only on account of services provided by current or former directors, officers, employees or consultants of the Borrower or the Subsidiaries shall be a Swap Agreement.
(t) TP Indenture means any of the following, each as amended, restated, supplemented or modified from time to time (collectively referred to herein as the TP Indentures): (i) that certain indenture dated as of March 28, 2003 between the Borrower and Wilmington Trust Company, as trustee; (ii) that certain indenture dated as of December 29, 2004 between the Borrower and Wilmington Trust Company, as trustee; and (iii) that certain indenture dated as of December 29, 2004 between Independent Bank Group Central Texas, Inc., a Texas corporation, and Wilmington Trust Company, as trustee.
(u) TP Junior Subordinated Debentures means the floating rate junior subordinated deferrable interest debentures issued by the Borrower pursuant to the TP Indentures.
1.2 The Loans. The Lender agrees to extend to the Borrower the following credit facilities in the aggregate principal amount of Sixteen Million Five Hundred Thousand Dollars ($16,500,000):
(a) The Term Loan. The Lender agrees to extend the Term Loan to the Borrower in accordance with the terms of, and subject to the conditions set forth in, this Agreement, the Term Note (as defined below) and the other Loan Documents. An initial Advance under the Term Loan shall be made on the Closing Date (as defined below) and, thereafter, any such Advance may be renewed from time to time in accordance with the terms and subject to the conditions set forth in this Agreement. Any Advance under the Term Loan shall be treated as a Prime Rate Advance and shall bear interest per annum at a rate equal to the Prime Rate; provided, however, that the rate of interest per annum on the Term Loan shall at no time be less than four percent (4%) (i.e., four hundred basis points).
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The unpaid principal balance plus all accrued but unpaid interest on the Term Loan shall be due and payable on December 24, 2016 (the Term Loan Maturity Date), or such earlier date on which such amount shall become due and payable on account of acceleration by the Lender in accordance with the terms of the Term Note and this Agreement.
(b) The Subordinated Debt. The Lender agrees to extend the Subordinated Debt to the Borrower in accordance with the terms of, and subject to the conditions set forth in, this Agreement, the Subordinated Debenture (as defined below) and the other Loan Documents. An initial Advance in an amount equal to the entire principal amount of the Subordinated Debt shall be borrowed on the Closing Date and, thereafter, any such Advance may be renewed from time to time in accordance with the terms and subject to the conditions set forth in this Agreement. Any Advance under the Subordinated Debt shall be treated as a Prime Rate Advance and shall bear interest per annum at a rate equal to the Prime Rate plus one-half of one percent (0.50%) (i.e., fifty basis points); provided, however, that the rate of interest per annum on the Subordinated Debt shall at no time be less than four percent (4%) (i.e., four hundred basis points).
The unpaid principal balance plus all accrued but unpaid interest on the Subordinated Debt shall be due and payable on December 24, 2016, or such later date through which the Subordinated Debt may be extended or renewed (the Subordinated Debt Maturity Date), or such earlier date on which such amount shall become due and payable on account of acceleration by the Lender in accordance with the terms of Section 5.7 of this Agreement. Each of the Term Loan Maturity Date and the Subordinated Debt Maturity Date may be referred to in this Agreement as a Maturity Date.
1.3 The Notes. The Loans shall be evidenced by the following instruments to be entered into concurrently herewith, substantially in the form of Exhibits A and B hereto, respectively: (a) with respect to the Term Loan, a promissory note in the principal amount of Twelve Million Dollars ($12,000,000) (as amended, restated, supplemented or modified from time to time, the Term Note), and (b) with respect to the Subordinated Debt, a subordinated debenture in the principal amount of up to Four Million Five Hundred Thousand Dollars ($4,500,000) (as amended, restated, supplemented or modified from time to time, the Subordinated Debenture). The term Notes as used in this Agreement shall mean the Term Note and the Subordinated Debenture, and each note or debenture, as the case may be, delivered in substitution or exchange therefor; and the term Note as used in this Agreement shall mean any of the Term Note or Subordinated Debenture, and any note or debenture, as the case may be, delivered in substitution or exchange therefor. The term Senior Notes as used in this Agreement shall mean the Term Note and any note delivered in substitution or exchange therefor.
1.4 General Payment Provisions.
(a) Principal and Interest Payments.
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(i) Term Loan. All accrued but unpaid interest on the principal balance of the Term Loan outstanding from time to time shall be payable on (a) the last Business Day of each fiscal quarter beginning with March 31, 2009, and (b) the Term Loan Maturity Date. The Borrower shall pay to the Lender the aggregate outstanding principal amount of all of the Term Loan as follows:
(A) thirty-two (32) consecutive quarterly principal installments of $375,000 [to be based on an eight (8) year amortization] each due and payable on the last Business Day of each calendar quarter beginning with March 31, 2009; and
(B) one final installment in the amount of all unpaid principal of the Term Loan due and payable on the Term Loan Maturity Date.
(ii) Subordinated Debt. All accrued but unpaid interest on the principal balance of the Subordinated Debt outstanding from time to time shall be payable on (a) the last Business Day of each calendar quarter beginning with March 31, 2009, and (b) the Subordinated Debt Maturity Date. The Borrower shall pay to the Lender the aggregate outstanding principal amount of all of the Subordinated Debt as follows:
(A) twenty-four (24) consecutive quarterly principal installments of $187,500 [to be based on a six (6) year amortization] each due and payable on the last Business Day of each calendar quarter beginning with March 31, 2011; and
(B) one final installment in the amount of all unpaid principal of the Subordinated Debt due and payable on the Subordinated Debt Maturity Date.
(iii) General. All amounts outstanding from time to time under each Note shall bear interest on the basis of a 360-day year, counting the actual number of days elapsed.
(b) Usury. The parties hereto intend to conform strictly to applicable usury laws as in effect from time to time during the terms of the Loans. Accordingly, if the transaction contemplated hereby would be usurious under applicable law (including the laws of the United States of America, or of any other jurisdiction whose laws may be mandatorily applicable), then, in that event, notwithstanding anything to the contrary in this Agreement or any Note, the Borrower and the Lender agree that the aggregate of all consideration that constitutes interest under applicable law that is contracted for, charged or received under or in connection with this Agreement shall under no circumstances exceed the maximum amount of interest allowed by applicable law, and any excess shall be credited to the Borrower by the Lender (or if such consideration shall have been paid in full, such excess refunded to the Borrower by the Lender).
(c) Default Rate of Interest. Upon the occurrence of any Default (as such term is defined in Section 5.1), except for a Default pursuant to Section 5.1(k), the rate of interest on the Notes (the Default Rate of Interest) shall be three percent (3%) above the interest rate otherwise applicable from the date of occurrence, and during the continuance, of the Default; provided, further, that upon the occurrence of a Default under Section 5.1(k) hereof, the Default
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Rate of Interest shall be six percent (6%) above the interest rate otherwise applicable from the date, and during the continuance, of the Default. Notwithstanding anything to the contrary set forth in this Section 1.4(c) or elsewhere in this Agreement, the Default Rate of Interest shall apply with respect to a Default relating to the Subordinated Debt if, and only if, such Default occurs pursuant to Section 5.1(a) or such Default is one with respect to which the Lender would be entitled to declare the Subordinated Debenture immediately due and payable pursuant to Section 5.7 of this Agreement.
(d) Application of Payments. Subject to Section 1.4(f)(ii), all payments received by the Lender from or on behalf of the Borrower shall first be applied to amounts due under Section 1.8, second to accrued interest under the Subordinated Debenture, third to accrued interest under the Term Note, fourth to principal amounts outstanding under the Subordinated Debenture and then to principal amounts outstanding under the Term Note; provided, however, subject to Section 5.7, that after the date on which the final payment of principal with respect to any Loan is due or following and during any Default, all payments received on account of the Borrowers Liabilities (as defined below) shall be applied in whatever order, combination and amounts as the Lender, in its sole and absolute discretion, decides, to all costs, expenses and other indebtedness owing to the Lender. No amount paid or prepaid on the Term Note or Subordinated Debenture may be reborrowed.
(e) Method of Payment. The Borrower will pay to the Lender in immediately available funds, at its office at the address as specified in Section 6.3, or such other address as the Lender shall specify in writing, all amounts payable to it in respect of the principal of, or interest on, each Note then held by the Lender, without any presentation of any such Note. The Lender may, if it so determines, make notation of each payment of principal on the appropriate Note, and it will promptly make such notation if the Borrower shall so request. The Lender may also, if it so determines, make notation on the face of any Note or elsewhere of any modification, amendment, alteration, guaranty or assumption of such Note. The aggregate unpaid principal amount shown on the face of, or elsewhere on, such Note shall be rebuttable presumptive evidence of the principal amount owing and unpaid on such Note. The failure to record any such amount on such schedule, however, shall not limit or otherwise affect the obligations of the Borrower hereunder or under any Note.
Prepayment. The Borrower may, upon at least one Business Days notice to the Lender, prepay, without a prepayment fee, all or a portion of the principal amount outstanding under the Subordinated Debt or the Term Loan by paying the principal amount to be prepaid, together with unpaid accrued interest thereon to the date of prepayment; provided, however, that the Borrower may not prepay any portion of the principal outstanding under the Subordinated Debt or the Term Loan prior to the date that is two (2) years after the Closing Date of the Subordinated Debt or the Term Loan, respectively under this Agreement. Notwithstanding anything to the contrary set forth in the immediately preceding sentence, the date of any prepayment pursuant to this Section 1.4(f) shall be considered to be the Business Day following receipt of the prepayment by the Lender unless such prepayment is received by the Lender before 1:00 p.m. (Dallas, Texas time) and is made in immediately available funds. In any event, the Term Loan may not be prepaid without the written consent and approval of the Lender, which consent and approval may be withheld at the Lenders sole and absolute discretion; provided, however, that if all amounts outstanding under all other indebtedness owing
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from the Borrower to the Lender have been repaid and the Borrower has satisfied in full all other financial obligations to the Lender, then the Borrower may prepay the Term Loan by paying the principal amount to be prepaid together with unpaid accrued interest thereon to the date of prepayment.
(g) Crediting of Payments; Payments to be Made on Business Days. The date of any payment under the Notes, including any prepayment, shall be considered to be the Business Day following receipt of the payment by the Lender unless such payment is received by the Lender before 1:00 p.m. (Dallas, Texas time) and is made in immediately available funds. If any payment to be made by the Borrower hereunder shall become due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day and such extension of time shall be included in computing any interest in respect of such payment.
(h) Legal Tender. All payments hereunder shall be made in coin or currency which at the time of payment is legal tender in the United States of America for public and private debts.
1.5 [reserved].
1.6 Determination of Interest Rate on Advances. The Lenders determination of the Prime Rate from time to time as provided in this Agreement shall be conclusive and binding in the absence of readily demonstrable error.
1.7 Collateral. The Borrowers obligations under this Agreement, the Term Note and any other Loan Documents (other than the Subordinated Debenture) (collectively, the Borrowers Liabilities), shall be secured by a pledge of the Bank Shares pursuant to the terms of a Pledge and Security Agreement dated as of the Closing Date between the Lender and Borrower, in the form attached as Exhibit D hereto (the Pledge Agreement). Notwithstanding anything to the contrary in any Loan Document, the obligations of the Borrower to the Lender under the Subordinated Debenture shall be unsecured.
1.8 Expenses. Whether or not the Loans are made, the Borrower will (a) pay all reasonable costs and expenses of the Lender incident to the transactions contemplated by this Agreement including, but not limited to, all costs and expenses incurred in connection with the preparation, negotiation and execution of the Loan Documents, or in connection with any modification, amendment, alteration or enforcement of this Agreement, the Notes or the other Loan Documents, including, without limitation, the Lenders expenses and the charges and disbursements to counsel retained by the Lender, and (b) pay and save the Lender and all other holders of the Notes harmless against any and all liability with respect to amounts payable as a result of (i) any taxes, other than income tax obligations of the Lender, that may be determined to be payable in connection with the execution and delivery of this Agreement, the Notes or the other Loan Documents or any modification, amendment or alteration of the terms or provisions of this Agreement, the Note or the other Loan Documents, (ii) any interest or penalties resulting from nonpayment or delay in payment by the Borrower of such expenses, charges, disbursements, liabilities or taxes, and (iii) any income taxes in respect of any reimbursement by the Borrower for any of such violations, taxes, interests or penalties paid by the Lender. The obligations of the Borrower under this Section 1.8 shall survive the repayment in full of the
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Notes. Any of the foregoing amounts incurred by the Lender and not paid by the Borrower upon demand shall bear interest from the date incurred at the rate of interest in effect or announced by the Lender from time to time as its prime rate of interest plus three percent (3%) per annum and shall be deemed part of the Borrowers Liabilities hereunder.
1.9 The Closing. The initial funding of the Loans (the Closing) will occur at the offices of Hunton & Williams LLP, counsel to the Lender, at 1445 Ross Avenue, Suite 3700, Dallas, Texas 75202, at 10:00 a.m. on December 24, 2008 (the Closing Date), or at such other place or time or on such other date as the parties hereto may agree, by disbursing the proceeds of the Loans in accordance with the Borrowers written instructions received at least one Business Day prior to Closing (the Instructions).
ARTICLE II
CONDITIONS
The Lenders obligation to make the Loans shall be subject to the performance by the Borrower prior to the Closing Date of all of its agreements theretofore to be performed under this Agreement and to the satisfaction of the following further conditions precedent:
2.1 Closing Deliveries and Payments. The obligation of the Lender to make the Loans is, in addition to the conditions precedent specified elsewhere in this Article II, subject to the condition precedent that the Lender shall have received all of the following, where appropriate, duly executed and dated the Closing Date and in form and substance satisfactory to the Lender and its counsel:
(a) the Notes;
(b) the Pledge Agreement;
(c) the actual certificates representing all of the securities constituting the Pledged Security (as defined in the Pledge Agreement) together with irrevocable stock powers in blank for the Bank Shares endorsed by the Borrower;
(d) the Instructions;
(e) copies certified by the appropriate secretary of state or Governmental Agency (as such term is defined in Section 2.1(i)) of (i) the certificate of incorporation of the Borrower, and (ii) the charter of the Bank;
(f) good standing certificates for (i) the Borrower issued by the Secretary of State of the State of Texas; and (ii) the Bank issued by the Texas Department of Banking (the TDB).
(g) copies certified by the Secretary or an Assistant Secretary of the Borrower of the Bylaws of the Borrower and the Bank;
(h) copies certified by the Secretary or an Assistant Secretary of the Borrower of resolutions of the board of directors of the Borrower authorizing the execution, delivery and performance (including the authority to pledge the Pledged Stock) of this Agreement, the Notes and the other Loan Documents;
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(i) copies certified by the Secretary or an Assistant Secretary of the Borrower of all documents evidencing all necessary consents, approvals and determinations of any federal, state or local governmental department, commission, board, regulatory authority or agency including, without limitation, the FRB, the Texas Banking Commissioner (the TBC), the Securities and Exchange Commission (the SEC), and the Federal Deposit Insurance Corporation (the FDIC) (collectively, the Governmental Agencies or individually, a Governmental Agency) with respect to the transactions contemplated in the Loan Documents and any other transactions between the Lender, Borrower and the Bank;
(j) incumbency certificates of the Secretary or an Assistant Secretary of the Borrower certifying the names of the officer or officers of the Borrower authorized to sign this Agreement, the Notes and the other documents provided for in this Agreement, together with a sample of the true signature of each such officer (the Lender may conclusively rely on such certificate until formally advised by a like certificate of any changes therein);
(k) the opinion of Haynie, Rake and Repass, P.C., counsel for the Borrower, substantially in the form of Exhibit E hereto;
(1) evidence that any pledge, lien, security interest, charge or encumbrance with respect to the Bank Shares for the benefit of any party other than the Lender shall have been released;
(m) payment to the Lender, in a form acceptable to the Lender, of (i) a structuring fee in the amount of forty-five thousand dollars ($45,000.00), and (ii) all amounts required to be paid by the Borrower pursuant to Section 1.8 of this Agreement;
(n) such UCC, tax lien and judgment searches as the Lender shall determine regarding the Borrower and its Subsidiaries pertaining to the jurisdictions in which the Borrower and such Subsidiaries are organized and headquartered;
(o) certificates signed by the President or a Vice President of the Borrower certifying that the conditions specified in Article II have been satisfied;
(p) such other additional information regarding the Borrower, any Subsidiary and their respective assets, liabilities (including any liabilities arising from, or relating to, legal proceedings) and contracts as the Lender may require in its sole discretion;
(q) the Purchase Agreement attached hereto as Exhibit G;
(r) copies of the Articles of Merger for the Merger and the Bank Merger, approved and file-stamped by the Secretary of State of the State of Texas and the TDB, respectively, providing for the consummation of the Merger and the Bank Merger on or prior to January 15, 2009; and
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(s) such other certificates, affidavits, schedules, resolutions, opinions, notes and/or other documents which are provided for hereunder or as the Lender may reasonably request.
2.2 Other Conditions of Borrowing.
Notwithstanding any other provision of this Agreement, the Lender shall not be required to make any Advance under any Loan, or to renew any Advance, at any time that any of the following shall be true:
(a) if there has occurred, in the Lenders sole and complete discretion, a material adverse change in the financial condition or affairs of the Borrower or the Bank since the date of the Financial Statements;
(b) if the representations and warranties of the Borrower contained in Article III and the information set forth in Paragraph A of the Recitals hereto shall not be true on and as of the date of any Advance, with the same effect as though such representations and warranties had been made on and as of such date;
(c) if any Default or Event of Default (as defined below) has occurred;
(d) if any litigation or governmental proceeding has been instituted or threatened in writing against the Borrower or the Bank or any of their officers or shareholders, or any legislation has been passed, in either case which, in the sole discretion of the Lender, may adversely affect the financial condition or operations of the Borrower or the Bank;
(e) if all necessary or appropriate actions and proceedings shall not have been taken in connection with, or relating to, the transactions contemplated hereby and all documents incident thereto shall not have been completed and tendered for delivery, in substance and form satisfactory to the Lender, including, but not limited to, if appropriate in the opinion of the Lender, the Lenders failure to have received evidence that all necessary approvals from Governmental Agencies to enter into this Agreement and to consummate the transactions contemplated herein have been received;
(f) if the Lender shall not have received in substance and form reasonably satisfactory to the Lender, all certificates, affidavits, schedules, resolutions, opinions, notes, and/or other documents which are provided for hereunder, or which it may reasonably request;
(g) if the Lender shall not have received, in immediately available funds, any payment of any other amount owing to the Lender pursuant to this Agreement;
(h) if the Lender shall not have received, in substance and form satisfactory to the Lender, the results of a TIBSCO Loan Review of the Bank; and
(i) if any of the Bank Shares are subject to any pledge, lien, security interest, charge or encumbrance other than in favor of the Lender.
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The Lenders refusal to disburse any proceeds of the Loans on account of the provisions of Section 2.1 or this Section 2.2 shall not alter or diminish any of the Borrowers other obligations hereunder or otherwise prevent any breach or default by the Borrower hereunder from becoming an Event of Default or a Default.
2.3 Certain Post-Closing Deliveries.
Borrower shall deliver such UCC, tax lien and judgment searches as the Lender shall determine regarding the Borrower and the Financial Institution Subsidiaries pertaining to the jurisdictions in which the Borrower and such Subsidiaries are organized and headquartered as soon as practicable following the Closing Date, but in no event later than December 31, 2008. Lender shall return to Borrower the promissory notes for the Existing Term Loans marked paid in full.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
To induce the Lender to make the Loan provided for herein, the Borrower represents and warrants, and covenants, as set forth below.
3.1 Organization and Status. (1) Borrower is a Texas corporation and registered bank holding company, and Borrower and each of its Subsidiaries are each duly organized, validly existing and in good standing under the laws of its organization and is duly qualified to do business and is in good standing under the laws of each state in which the ownership of its properties and the nature and extent of the activities transacted by it makes such qualification necessary. (2) Borrower has no Subsidiary other than those listed on Schedule 3.1 and each Subsidiary is owned by Borrower or another of its Subsidiaries in the percentage set forth on Schedule 3.1. The deposit accounts of the Bank are insured by the FDIC. The Borrower and the Bank have made payment of all franchise and similar taxes as are due and payable as of the date of this Agreement in the State of Texas and in all of the respective jurisdictions in which they are incorporated, chartered or qualified, and so far as such taxes are due and payable at the date of this Agreement.
3.2 Financial Statements. All financial statements delivered to the Lender are complete and correct and fairly present, in accordance with GAAP, the financial condition and the results of operations of Borrower and each Financial Institution Subsidiary of Borrower, as of the dates and for the periods indicated (the Financial Statements). Nothing has occurred in the assets, liabilities, financial condition, business or affairs of the Borrower or any of the Financial Institution Subsidiaries since the dates of such financial statements dated as of December 31, 2007. Neither Borrower nor any of its Subsidiaries is subject to any instrument or agreement materially and adversely affecting its financial condition, business or affairs.
3.3 Enforceability. This Agreement, the Notes, and the other Loan Documents have been duly authorized, executed and delivered by the Borrower and the Financial Institution Subsidiaries and are valid and binding agreements of the Borrower and the Financial Institution Subsidiaries, enforceable according to their terms, except as the enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors rights generally and
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subject to general principles of equity. The execution, delivery and performance of the Agreement, the Notes and the other Loan Documents and the obligations that they impose, do not violate any legal requirement, conflict with any material agreement by which any party is bound, or require any Governmental Authorizations, as defined below, or other third party which has not been promptly obtained in connection with the execution and delivery of the Agreement and the other Loan Documents.
3.4 Litigation. There is no litigation, claim, investigation, administrative proceeding or similar action (including those for unpaid taxes) against Borrower or any of the Financial Institution Subsidiaries or any other obligor pending or threatened, and no other event has occurred which may in any one case or in the aggregate materially adversely affect Borrower, any of its Subsidiaries, any other obligor or any of their respective financial conditions and properties, other than litigation, claims, or other events, if any, that have been disclosed to and acknowledged by the Lender in writing.
3.5 Title and Rights. Borrower and each of the Financial Institution Subsidiaries have good and marketable title to its properties, free and clear of any lien except for liens disclosed to the Lender prior to December 15, 2008, those permitted by the Agreement and the other Loan Documents. Borrower and each of the Financial Institution Subsidiaries possess all permits, licenses, patents, trademarks and copyrights required to conduct their respective businesses.
3.6 Regulation U; Business Purpose. None of the proceeds of any of the Loans will be used to purchase or carry, directly or indirectly, any margin stock or for any other purpose which would make this credit a purpose credit within the meaning of Regulation U or not an exempt transaction under Regulation U. All Loans will be used for business purposes and for the express purposes that Borrower has informed the Lender that it will use the credit. None of the stock of the Borrowers Subsidiaries is margin stock as defined in Regulation U.
3.7 Capital Stock of the Borrowers Subsidiaries. (1) All of the issued and outstanding capital stock of each of the Financial Institution Subsidiaries (the Borrowers Current Subsidiaries Shares) has been duly authorized, legally and validly issued, fully paid and non-assessable, and the Borrowers Current Subsidiaries Shares are owned by Borrower, free and clear of all liens, except as may exist for the benefit of the Lender; (2) none of the Borrowers Current Subsidiaries Shares have been issued in violation of any shareholders preemptive rights; (3) there are, as of the date of this Agreement, no outstanding options, rights, warrants, plans, understandings or other agreements or instruments obligating Borrower to issue, deliver or sell, or cause to be issued, delivered or sold, or contemplating or providing for the issuance of, additional shares of the capital stock of any of the Financial Institution Subsidiaries, or obligating Borrower or any of the Financial Institution Subsidiaries to grant, extend or enter into any such agreement or commitment; and (4) upon consummation of the Bank Merger, the Bank Shares which have been pledged to Lender pursuant to the provisions of this Agreement and the Pledge Agreement shall constitute the only outstanding equity interests of the only depository institution subsidiary of the Borrower.
3.8 Regulatory Enforcement Actions. None of Borrower or any of the Financial Institution Subsidiaries, or any of their respective officers or directors, is now operating under or
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will operate under any agreements, memoranda, or written commitments by the Borrower or by any of the Financial Institution Subsidiaries (other than restrictions of general application) imposed by any Governmental Agency, nor to the knowledge of Borrower, are any such restrictions threatened or agreements, memoranda or commitments being sought by any Governmental Agency.
3.9 Reserve for Possible Loan and Lease Losses. The reserves for possible loan and lease losses shown in the most recently delivered financial statements pursuant to Section 4.2(a)(i) (Reserve for Possible Loan and Lease Losses), with respect to the Borrower and in the Reports of Condition and Income (Call Reports) of the Bank are adequate in all respects to provide for losses, net of recoveries relating to loans previously charged off, on loans and leases outstanding as of the date of such statements or reports, as of the date of such statements or reports. To the Borrowers knowledge, the aggregate principal amount of loans contained in the loan portfolio of the Bank in excess of the corresponding reserve is fully collectible.
3.10 No Liens. None of Borrower or any of the Financial Institution Subsidiaries is a party to any agreement, instrument or undertaking (other than this Agreement) or subject to any other restriction pursuant to which the Borrower or any of the Financial Institution Subsidiaries has placed, or will be required to place (or under which any other Person may place), a lien upon any of its properties securing indebtedness, either upon demand or upon the happening of a condition, with or without any demand.
3.11 Compliance. The Borrower and each of the Financial Institution Subsidiaries has filed all applicable tax returns and paid all taxes shown thereon to be due, except those for which extensions have been obtained and those which are being contested in good faith and for which adequate reserves have been established. The Borrower and each of the Financial Institution Subsidiaries is in compliance in all material respects with all applicable legal requirements and manages and operates (and will continue to manage and operate) its business in accordance with good industry practices. None of the Borrower or any of the Financial Institution Subsidiaries is in default in the payment of any other indebtedness or under any material agreement to which it is a party. The parties have obtained all consents of and registered with all Governmental Agencies and other Persons required to execute, deliver and perform the Loan Documents.
3.12 Restrictions on the Borrower. Neither the Borrower nor the Bank is a party to, nor is bound by, any contract or agreement or instrument, or subject to any charter or other corporate restriction materially and adversely affecting its financial condition, business or operations.
3.13 No Claims Against the Bank. There are no defenses or counterclaims, offsets or adverse claims, demands or actions of any kind, personal or otherwise that the Borrower and the Financial Institution Subsidiaries or any other obligor could assert with respect to this Agreement or the Loans.
3.14 Statements by Others. All statements made by or on behalf of the Borrower and any of the Financial Institution Subsidiaries in connection with any Loan Document constitute the joint and several representations and warranties of the Borrower under this Agreement.
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3.15 Continuing Representations. Each request for an advance or renewal of an Advance under any of the Loans shall constitute a representation and warranty by the Borrower that all of the representations and warranties set forth in this Agreement shall be true and correct in all material respects on and as of such date with the same effect as though such representations and warranties had been made on such date, except to the extent that such representations and warranties are stated to expressly relate solely to an earlier date.
3.16 Environment. The Borrower and each of the Financial Institution Subsidiaries have complied in all material respects with applicable legal requirements in each instance in which any of them have generated, handled, used, stored or disposed of any hazardous or toxic waste or substance regulated by any governmental authority, on or off its premises (whether or not owned by any of them). To the knowledge of Borrower none of the Borrower or any of the Financial Institution Subsidiaries has any material contingent liability for non-compliance with environmental or hazardous waste laws. None of the Borrower or any of the Financial Institution Subsidiaries has received any notice that it or any of its property or operations does not comply with, or that any Governmental Agency is investigating its compliance with, any environmental or hazardous waste laws.
3.17 Solvency. After giving effect to the consummation of the transactions contemplated by this Agreement, the Borrower and the Financial Institution Subsidiaries have capital sufficient to carry on their respective business and transactions and all businesses and transactions in which they are about to engage, and each is solvent and able to pay its debts as they mature. No transfer of property is being made and no indebtedness is being incurred in connection with the transactions contemplated by this Agreement with the intent to hinder, delay or defraud either present or future creditors of the Borrower or the Financial Institution Subsidiaries.
3.18 Subordination. The TP Junior Subordinated Debentures are expressly subordinate and junior in all respects (including, without limitation, with respect to the right of payment) to the Loans to the extent provided in the TP Indenture. The Loans constitute senior indebtedness pursuant to the terms of the TP Indenture.
3.19 Pledged Stock. The Bank Shares pledged pursuant to the terms and conditions of the Pledge Agreement have been issued, executed and granted in compliance with all applicable laws or regulations, including, without limitation, Art. 2.02(9) of the Texas Business Corporation Act.
3.20 No Misstatement. No information, exhibit, report or document furnished by the Borrower to the Lender in connection with the negotiation or execution of this Agreement or the making of any Loan contains any untrue statement of a material fact or omits to state a material fact or any fact necessary to make the statements contained therein not misleading in light of the circumstances when made or furnished to the Lender.
3.21 Investment Status. Neither Borrower nor any of its Subsidiaries is an investment company as defined in, or subject to regulation under, the Investment Company Act of 1940.
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3.22 ERISA. No ERISA Event has occurred or is reasonably expected to occur that, when taken together with all other such ERISA Events for which liability is reasonably expected to occur, could reasonably be expected to result in a material adverse change.
ARTICLE IV
COVENANTS
4.1 Negative Covenants. The Borrower agrees that until the commitment of the Lender to make Advances has terminated and the Borrower satisfies all of its obligations to the Lender, including, but not limited to, its obligations to pay in full all of the Borrowers Liabilities, without the prior written consent of the Lender, which may be given or withheld in the Lenders sole and absolute discretion, the Borrower shall not itself, nor shall the Borrower cause, permit or allow the Bank to:
(a) create, assume, incur, have outstanding, or in any manner become liable in respect of any indebtedness (as such term is defined in this Section 4.1(a)), other than as reflected in Schedule 4.1(a), or, with respect to Swap Agreements as permitted in Section 4.1(t), or with respect to the Bank, in the normal course of business and in accordance with applicable laws and regulations and safe and sound banking practices, any of the following:
(i) any deposits with or funds collected by the Bank;
(ii) any bankers acceptance or letter of credit issued, assumed, accepted, endorsed or guaranteed by the Bank;
(iii) any check, note, certificate of deposit, money order, travelers check, draft or bill of exchange accepted or endorsed by the Bank;
(iv) interbank credit facilities, such as arrangements for participations in customer loans, provided, however, that such arrangements do not involve borrowed debt of the Bank; and
(v) any transaction in which the Bank acts solely in a fiduciary or agency capacity.
For purposes of this Agreement, the phrase indebtedness shall mean and include: (i) all items arising from the borrowing of money that, according to GAAP now in effect, would be included in determining total liabilities as shown on the balance sheet of Borrower or any of its Subsidiaries; (ii) all indebtedness secured by any lien in property owned by the Borrower whether or not such indebtedness shall have been assumed; (iii) all guarantees and similar contingent liabilities with respect to indebtedness of others; and (iv) all other obligations (including, without limitation, with respect to letters of credit, and any interest rate swap, cap, collar or other hedging or derivative agreement) evidencing indebtedness to others; provided, however, indebtedness shall not include deposits or other indebtedness incurred in the ordinary course of Borrower or any of the Financial Institution Subsidiaries businesses (including, without limitation, federal funds purchased, advances from any Federal Home Loan Bank or Federal Reserve Bank, secured deposits of municipalities, letters of credit issued by Borrower or any of the Financial Institution Subsidiaries and repurchase arrangements) and in accordance with safe and sound banking practices and applicable laws and regulations;
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(b) create, assume, incur, suffer or permit to exist any mortgage, pledge, deed of trust, encumbrance (including the lien or retained security title of a conditional vendor), security interest, assignment, lien or charge of any kind or character upon or with respect to any of their real or personal property, including, without limitation, any capital stock owned by the Borrower or the Bank, whether owned at the date hereof or hereafter acquired, or assign or otherwise convey any right to receive income excepting only: (i) liens for taxes, assessments or other governmental charges for the then current year or which are not yet due or delinquent; (ii) liens for taxes, assessments or other governmental charges already due, but the validity of which is being contested at the time in good faith in such a manner as not to make the property forfeitable; (iii) liens and charges incidental to current operations that are not due or delinquent; (iv) liens for workmens compensation awards not due or delinquent; (v) pledges or deposits to secure obligations under workmens compensation laws or similar legislation; (vi) purchase money mortgages or other liens on real property, and bank furniture and fixtures acquired or held in the ordinary course of business to secure the purchase price of such property or to secure the indebtedness incurred solely for the purpose of financing the acquisition, construction or improvement of any such property to be subject to such mortgages or other liens, or mortgages or other liens existing on any such property at the time of acquisition, or extensions, renewals, or replacements of any of the foregoing for the same or a lesser amount, provided that no such mortgage or other lien shall extend to or cover any property other than the property being acquired, constructed or improved, and no such extension, renewal or replacement shall extend to or cover any property not theretofore subject to the mortgage or lien being extended, renewed or replaced, and provided further that no such mortgage or lien shall exceed one hundred percent (100%) of the price of acquisition, construction or improvement at the time of acquisition, construction or improvement, and provided, further, that the aggregate principal amount of consolidated indebtedness at any one time outstanding and secured by mortgages, liens, conditional sale agreements and other security interests permitted by this clause (vi) shall not exceed ten percent (10%) of the consolidated capital of the Borrower; (vii) liens existing on the date hereof as shown on Schedule 5.1; (viii) in the case of the Bank, liens incurred in the ordinary course of the business of banking and in accordance with applicable laws and regulations and safe and sound banking practices; and (ix) any lien granted by the Borrower or the Bank to the Lender;
(c) except as set forth on Schedule 4.1(c), dispose of by sale, assignment, lease or otherwise, property or assets now owned or hereafter acquired if such property or assets plus all other properties and assets sold, leased, transferred or otherwise disposed of during the 12-month period ending on the date of such sale, lease or other disposition shall have an aggregate value of more than two percent (2%) of the consolidated assets of the Borrower as reflected in the most recent balance sheet delivered to the Lender pursuant to Section 4.2(a)(i), except that the Bank may dispose of its property or assets to the Borrower or sell mortgages and loan participations in the ordinary course of its banking business and consistent with safe and sound banking practices;
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(d) except for guaranties by the Borrower or the Bank of indebtedness incurred in accordance with Section 4.1(a) and guaranties listed on Schedule 4.1(d), become a guarantor, surety or otherwise liable for the debts or other obligations of any other Person;
(e) except as set forth on Schedule 4.1(e), purchase the assets of, merge with or into or consolidate with or into, any Person without the prior written consent of the Lender;
(f) declare or pay any cash or other distribution in respect of the liquidation or dissolution of the Borrower, whether pursuant to a plan of liquidation, plan of dissolution or otherwise;
(g) except for loans to employees in connection with employee benefit plans, make any loans or advances, whether secured or unsecured, to any Person, other than loans or advances made by the Bank in the ordinary course of business and in accordance with applicable laws and regulations and safe and sound banking practices;
(h) engage in any business or activity not permitted by all applicable laws and regulations, including without limitation, the Bank Holding Company Act of 1956, as amended (including, without limitation, by the Gramm-Leach-Bliley Act of 1999), the Federal Deposit Insurance Act, as amended (the FDI Act), any applicable state banking laws, and any regulations promulgated under any of such acts;
(i) make any loan or advance secured by the capital stock of another bank or depository institution, or acquire the capital stock, assets or obligations of or any interest in another bank or depository institution, in each case other than in the ordinary course of business and in accordance with applicable laws and regulations and safe and sound banking practices;
(j) directly or indirectly create, assume, incur, suffer or permit to exist any pledge, encumbrance, security interest, assignment, lien or charge of any kind or character on the Bank Shares or any other stock owned by the Borrower or the Bank, except for any security interest granted herewith or previously by the Borrower to the Lender;
(k) cause or allow the percentage of the Bank Shares owned by Borrower to diminish as a percentage of the outstanding capital stock of the Bank;
(1) dispose of any stock or other interest in the equity of any of its Subsidiaries, now owned or hereafter acquired, by sale, assignment, lease or otherwise;
(m) breach or fail to perform or observe any of the terms and conditions of the Notes, the Pledge Agreement or any other Loan Document;
(n) engage in any unsafe or unsound banking practices;
(o) enter into any transaction including, without limitation, the purchase, sale or exchange of property or the rendering of any service, with any affiliate (as such term is defined in this Section 4.1(o)) except in the ordinary course of business and pursuant to the reasonable requirements of the Borrowers or such affiliates business and upon terms reasonably found by the appropriate board(s) of directors to be fair and reasonable and no less favorable to
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the Borrower or such affiliate than would be obtained in a comparable arms length transaction with a Person not an affiliate. As used in this Section 4.1(o), affiliate shall mean, with respect to a Person, any other Person controlling, controlled by or under common control with such Person;
(p) (i) be or become subject at any time to any law, regulation, or list of any Government Agency (including, without limitation, the U.S. Office of Foreign Asset Control list) that prohibits or limits the Lender from making any advance or extension of credit to the Borrower or from otherwise conducting business with the Borrower, or (ii) fail to provide documentary or other evidence of the Borrowers identity as may be requested by the Lender at any time to enable the Lender to verify the Borrowers identity or to comply with any applicable law or regulation, including, without limitation, Section 326 of the USA Patriot Act of 2001, 31 U.S.C. Section 5318;
(q) engage to any material extent in any business other than businesses of the type conducted by the Borrower and its Subsidiaries on the date of execution of this Agreement and businesses reasonably related thereto; or
(r) enter into any Swap Agreement, except (i) Swap Agreements entered into to hedge or mitigate risks to which the Borrower or any Subsidiary has actual exposure (other than those in respect of equity interests or restricted indebtedness of the Borrower or any of its Subsidiaries), and (b) Swap Agreements entered into in order to effectively cap, collar or exchange interest rates (from fixed to floating rates, from one floating rate to another floating rate or otherwise) with respect to any interest-bearing liability or investment of the Borrower or any Subsidiary.
4.2 Affirmative Covenants. The Borrower agrees that, until the commitment of the Lender to make Advances has terminated and the Borrower satisfies all of its obligations to the Lender, including, but not limited to, its obligations to pay in full all of the Borrowers Liabilities, the Borrower shall satisfy the covenants set forth below.
(a) The Borrower shall furnish and deliver to the Lender:
(i) as soon as available, but in any event not more than ninety (90) days after the close of each fiscal year of the Borrower, or within such further time as the Lender may permit, consolidated and consolidating audited financial statements for the Borrower and the Bank, including a balance sheet and related profit and loss statement, prepared in accordance with GAAP consistently applied throughout the periods reflected therein by Accountant or other independent certified public accountants reasonably acceptable to the Lender, who shall give their unqualified opinion with respect thereto.
(ii) (A) as soon as available, but in any event not more than sixty (60) days after the close of each calendar quarterly period, or within such further time as the Lender may permit, the Call Reports and Uniform Bank Performance Report filed by the Bank with federal bank regulatory agencies; (B) as soon as available, but in any event not more than thirty (30) days after the close of each calendar quarterly period, or within such further time as the Lender may permit, the internally prepared classified asset list or
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watch list or other reports of the Bank with respect to delinquent, classified or assets requiring special attention; (C) upon request, and in any event not more than thirty (30) days after the close of each calendar month, or within such further time as the Lender may permit, the monthly board package of the Bank; (D) as soon as available, but in any event not more than forty-five (45) days after the close of each quarterly period of each fiscal year of the Borrower, or within such further time as the Lender may permit, the Form FRY-9 filed by the Borrower with federal bank regulatory agencies; and (E) as soon as it is available, the annual budget of the Bank.
(iii) the Borrower shall furnish the Lender, at the same time as the quarterly financial reports referred to in Section 4.2(a)(ii), a quarterly compliance certificate in the form set forth as Exhibit F hereto, which certificate shall state that (A) the Borrower is in compliance in all material respects with all covenants contained in this Agreement, (B) that no Default or Event of Default has occurred or is continuing, or, if there is any such event, describing such event, the steps, if any, that are being taken to cure it, and the time within which such cure will occur and (C) all representations and warranties made by the Borrower herein other than in Section 3.2 continue to be true in all material respects as of the date of such certificate. Such quarterly compliance certificate shall be signed by the Chief Financial Officer or other officer of the Borrower and shall also contain, in a form and with such specificity as is reasonably satisfactory to the Lender, such additional information as the Lender shall have reasonably requested by the Borrower prior to the submission thereof;
(iv) to the extent permitted by law, promptly after same are available, copies of each annual report, proxy or financial statement or other report or communication sent by the Borrower or the Bank to the stockholders of the Borrower, and copies of all annual, regular, periodic and special reports and registration statements which the Borrower or the Bank may file or be required to file with any federal or state banking regulatory agency or any other Governmental Agency or with any securities exchange;
(v) immediately after receiving knowledge thereof, notice in writing of all charges, assessments, actions, suits and proceedings (as well as notice of the outcome of any such charges, assessments, actions, suits and proceedings) that are initiated by, or brought before, any court or governmental department, commission, board or other administrative agency, in connection with the Borrower or the Bank, other than ordinary course of business litigation not involving the FRB, the FDIC, or the TBC, which, if adversely decided, would not have a material adverse effect on the financial condition or operations of the Borrower or the Bank;
(vi) promptly upon receipt thereof, one copy of each written audit report submitted to the Borrower by its Accountant; and
(vii) promptly after the occurrence thereof, notice of any other matter which has resulted in, or which might or could result in, a materially adverse change in the financial condition, business or operations of the Borrower or the Bank.
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(b) The Borrower (on a consolidated basis) shall maintain and cause the Bank to maintain such capital as may be necessary to cause (a) the Borrower to be classified as well capitalized, (b) the Bank to be classified as well capitalized, and (c) the Bank to have Total Risk-based Capital of not less than ten percent (10.00%), each in accordance with the rules and regulations of its primary federal regulator, as in effect from time to time and consistent with the financial information and reports contemplated in Section 4.2(a) hereof.
(c) The Borrower shall maintain, per calendar quarter on an annualized basis, a minimum ratio of net income after taxes divided by Average Total Assets for the Bank of not less than one percent (1.00%). This covenant shall be calculated beginning with the quarter ending March 31, 2009. For purposes of this Agreement, Average Total Assets shall have the definition provided in, and shall be determined in accordance with, the rules and regulations of the primary federal regulator of the Bank, as in effect from time to time, and shall be consistent with the financial information and reports contemplated in Section 4.2(a) hereof.
(d) The Borrower will cause each of its banking Subsidiaries to not allow the Classified Assets of such banking Subsidiary to exceed fifty percent (50%) of the Primary Capital of such banking Subsidiary. The term Primary Capital shall mean the sum of common stock, capital surplus, undivided profits, reserves for contingencies and other capital reserves, and excluding reserves for loan losses. The term Classified Assets shall mean all assets classified at any time as Loss, Doubtful or Substandard by the Subsidiary or any governmental or regulatory authority or any third party loan review.
(e) The Borrower will cause each of its banking Subsidiaries to maintain, per calendar quarter, a minimum ratio of tangible equity to assets of at least six and one-half percent (6.5%). The Borrower will cause the Bank to maintain, on a quarterly basis, a minimum shareholders equity of at least sixty million dollars ($60 million).
(f) The Borrower shall promptly pay and discharge all taxes, assessments and other governmental charges imposed upon the Borrower or the Bank or upon the income, profits, or property of the Borrower or the Bank and all claims for labor, material or supplies which, if unpaid, might by law become a lien or charge upon the property of the Borrower or the Bank; provided that neither the Borrower nor the Bank shall be required to pay any such tax, assessment, charge or claim, so long as the validity thereof shall be contested in good faith by appropriate proceedings, and reserves therefor shall be maintained on the books of the Borrower or the Bank as are deemed adequate by the Lender.
(g) The Borrower shall maintain bonds and insurance and cause the Bank to maintain bonds and insurance with responsible and reputable insurance companies or associations in such amounts and covering such risk as is usually carried by owners of similar businesses and properties in the same geographic area in which the Borrower or the Bank operates, and such additional bonds and insurance as may reasonably be required by the Lender.
(h) To the extent not prohibited by law, the Borrower shall permit and cause the Bank to permit the Lender through its employees, attorneys, accountants or other agents, to inspect any of the properties, corporate books and financial books and records of the Borrower and the Bank at such times and as often as the Lender reasonably may request.
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(i) As soon as possible, and in any event within ten (10) Business Days, after: (i) the Borrower or any ERISA Affiliate knows that with respect to any Employee Benefit Plan, a prohibited transaction, a reportable event, or any other event or condition which could subject the Borrower or any ERISA Affiliate to liability under ERISA or the Code; or (ii) the institution of steps by the Borrower or any ERISA Affiliate to withdraw from, or the institution of any steps by any party to terminate, any Employee Benefit Plan; has or may have occurred, the Borrower shall deliver to the Lender a certificate of a responsible officer setting forth the details of such matter, the action that the Borrower proposes to take with respect thereto, and, when known, any action taken or threatened by the Internal Revenue Service, the U.S. Department of Labor, or the Pension Benefit Guarantee Corporation. For purposes of this covenant, the Borrower shall be deemed to have knowledge of all facts known by the fiduciaries of any plan of the Borrower or any ERISA Affiliate.
(j) The Borrower shall:
(i) exercise and cause the Bank to exercise due diligence in order to comply with all federal, state and local laws, statutes, ordinances, regulations and policies relating to health, safety, ecology or the environment (collectively, the Environmental Laws);
(ii) permit the Lender, from time to time and in its sole and absolute discretion, to retain, at the Borrowers expense, an independent professional consultant to review any report relating to Hazardous Materials prepared by or for the Borrower or the Bank, and at reasonable times and subject to reasonable conditions to conduct its own investigation of any real property or other facility currently or then owned, leased, operated or used by the Borrower or the Bank, and the Borrower agrees to use (and to cause the Bank to use) its best efforts to obtain permission for the Lenders professional consultant to conduct its own investigation of any real property or other facility previously owned, leased, operated or used by the Borrower or the Bank. The Borrower hereby grants to the Lender, its agents, employees, consultants, and contractors the right to enter into or on to, at reasonable times, the real property or other facilities owned, leased, operated or used by the Borrower or the Bank (hereinafter, each a Facility and collectively the Facilities) to perform such tests on such property as are reasonably necessary to conduct such a review and/or investigation;
(iii) promptly advise the Lender in writing and in reasonable detail of (A) any presence, use, storage, transportation, discharge, disposal, release or threatened release (each of the foregoing being hereinafter referred to as a Condition or Release) of any Hazardous Materials required to be reported by the Borrower or the Bank to any federal, state or local governmental or regulatory agency under any applicable Environmental Laws, (B) any and all written communications with respect to claims or threatened claims under or with respect to any Environmental Laws (an Environmental Claim) or any Condition or Release of Hazardous Material required to be reported to any federal, state or local governmental or regulatory agency by the Borrower or the Bank, (C) any remedial action taken by the Borrower or any other Person in response to (1) any Hazardous Material on, under or about any Facility, the existence of which could result in an Environmental Claim against the Borrower or the Bank, or (2) any
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Environmental Claim that could have a material adverse effect on the Borrower or the Bank, (D) the Borrowers discovery of any occurrence or condition on any real property adjoining or in the vicinity of any Facility that could cause such Facility or any part thereof to be subject to any restrictions on the ownership, occupancy, transferability or use thereof under any Environmental Laws, and (E) any request for information from any Governmental Agency indicating that such agency has initiated an investigation as to whether the Borrower or the Bank may be potentially responsible for any Condition or Release of Hazardous Material;
(iv) promptly notify the Lender of (A) any acquisition of stock, assets, or property by the Borrower or the Bank that reasonably could be expected to expose any proposed action outside the normal course of business to be taken by the Borrower or the Bank to, or result in, Environmental Claims that could have a material adverse effect or that could be expected to have a material adverse effect on any governmental authorization, license, permit or approval (collectively, the Governmental Authorizations) then held by the Borrower or the Bank, and (B) any proposed action outside the normal course of business to be taken by the Borrower or the Bank to commence industrial or other operations that could subject the Borrower or the Bank to additional laws, rules or regulations, including, without limitation, laws, rules and regulations requiring additional environmental permits or licenses;
(v) at their own expense, provide copies of such documents or information as the Lender may reasonably request in relation to any matters disclosed pursuant to this Section 4.2(j);
(vi) promptly take any and all necessary remedial action in connection with any Condition or Release of any Hazardous Materials, on, under or about any Facility in order to comply with all applicable Environmental Laws and Governmental Authorizations. In the event the Borrower or the Bank undertakes any remedial action with respect to any Hazardous Material on, under or about any Facility, such Borrower or the Bank shall conduct and complete such remedial action in compliance with all applicable Environmental Laws and in accordance with the policies, orders and directives of all federal, state and local government authorities; and
(vii) defend, indemnify and hold harmless the Lender, its directors, officers, employees, agents, successors and assigns (including, without limitation, any participants in any Loan) from and against any and all losses, damages, liabilities, claims, actions, judgments, court costs and legal or other expenses (including, without limitation, attorneys fees and expenses) which the Lender may incur as a direct or indirect consequence of (a) any claim or action, pending or threatened, of any Governmental Agency or other Person relating to any Hazardous Material or Environmental Law, or any other violation of an Environmental Law, or (b) the use, generation, manufacture, storage, disposal, threatened disposal, transportation or presence of Hazardous Materials in, on, under or about any real property owned or leased by the Borrower or the Bank or otherwise by the Borrower or the Bank. The Borrowers duty and obligations to defend, indemnify and hold harmless the Lender shall survive the cancellation of the Notes and any other Loan Documents.
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(k) The Borrower shall promptly provide the Lender with copies of all written reports presented to the board of directors of the Borrower as the Lender may from time to time reasonably request.
(l) The Borrower shall promptly provide and cause the Bank to promptly provide the Lender with such other information concerning the business, operations, financial condition and regulatory status of the Borrower and the Bank as the Lender may from time to time reasonably request, so long as such information is not confidential and related to a customer of the Borrower or the Bank.
(m) The Borrower shall do or cause to be done all things necessary to maintain, preserve and renew its corporate existence and that of the Bank and its and their rights and franchises, and comply with all related laws applicable to the Borrower or the Bank.
(n) The Borrower shall comply and cause the Bank to comply with all applicable statutes, rules, regulations, orders and restrictions in respect of the conduct of their respective businesses and the ownership of their respective properties.
(o) If the Subordinated Debt ceases to be deemed to be Tier 2 Capital other than due to the limitation imposed by the second sentence of 12 C.F.R. 250.166(e)(1), which limits the capital treatment of subordinated debt during the five years immediately preceding the maturity date of the subordinated debt, the Borrower, upon receipt of FRB Notice (as defined in Section 5.7) shall: (i) immediately notify the Lender, and (ii) immediately begin good faith discussions with the FRB to reinstate the Subordinated Debt as Tier 2 Capital. Pursuant to discussions initiated under (ii) of the immediately preceding sentence, in the event the FRB: (1) deems the Subordinated Debt not to be Tier 2 Capital; or (2) has not provided a final resolution within 180 days after Borrowers receipt of the FRB Notice, Borrower and Lender shall immediately engage in good faith negotiations to restructure the Subordinated Debt as Tier 2 Capital. Borrower shall execute and deliver all agreements (including, without limitation, pledge agreements and replacement notes) as the Lender may reasonably request in order to restructure the obligations evidenced by the Subordinated Debenture to qualify as Tier 2 Capital. Borrower and Lender intend that the Subordinated Debt qualify as Tier 2 Capital in accordance with the rules and regulations of the FRB as in effect on the date hereof. Accordingly, each party agrees to amend or modify the terms of the Subordinated Debt as may be reasonably required from time to time to cause the Subordinated Debt to qualify as Tier 2 Capital in accordance with the rules and regulations of the FRB as in effect on the date hereof; provided, however, that in no event shall Lender be obligated to extend the maturity date of the Subordinated Debt, reduce the interest rate applicable to the Subordinated Debt, change the principal amount of the Subordinated Debt or otherwise amend or modify this Agreement or any other Loan Document if Lender determines in its sole discretion that such amendment or modification would increase the risks to Lender associated with the Subordinated Debt.
(p) The Borrower shall promptly make, execute and deliver any and all agreements, documents, instruments and other records that the Lender may reasonably request to evidence any of the Loans, cure any defect in the execution and delivery of any of the Loan Documents, perfect any lien, comply with any legal requirement applicable to the Lender or the Loans or more fully to describe particular aspects of the agreements set forth or intended to be set forth in any of the Loan Documents.
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(q) The Borrower will, and will cause each of its Subsidiaries to, keep and maintain all property material to the conduct of its business in good working order and condition, ordinary wear and tear excepted.
(r) The Borrower will continue to be a registered bank holding company in accordance with applicable law, and will cause Bank to maintain federal deposit insurance and to be a member of an insurance fund managed or maintained by the FDIC (or any successor).
(s) The Borrower will maintain, and will cause each Subsidiary to maintain, proper books of record and account in which full, true, and correct entries in conformity with GAAP shall be made of all dealings and transactions in relation to its business and activities.
(t) The Borrower will comply, and will cause each Subsidiary to comply, in all material respects with all agreements, contracts, and instruments binding on it or affecting its properties or business.
ARTICLE V
EVENTS OF DEFAULT; DEFAULT; RIGHTS UPON DEFAULT
5.1 Events of Default. Subject to Section 5.7 below, the happening or occurrence of any of the following events, acts or conditions (an Event of Default) and the Borrowers failure to cure same after expiration of any applicable cure period shall each constitute a Default hereunder, and any such Default shall also constitute a Default under all of the Notes, the Pledge Agreement and any other Loan Document, without right to notice or time to cure in favor of the Borrower except as indicated below:
(a) if the Borrower fails to make payment when due or where applicable upon demand, or fails to make any payments as provided for herein, and such payment remains unpaid for ten (10) days after the applicable due date;
(b) if there continues to exist any breach of any obligation of the Borrower under this Agreement or any other Loan Document and such breach remains uncured beyond the applicable time period, if any, specifically provided therefor, and, if no time period is stated, then such breach remains uncured for ten (10) days after notice thereof;
(c) if any representation or warranty made by the Borrower herein, or in any other agreement now or at any time hereafter existing between the Borrower and the Lender, is breached or is false or misleading, or any schedule, certificate, financial statement, report, notice or other writing furnished by the Borrower or the Bank to the Lender is false or misleading in any material respect on the date as of which the facts therein set forth are stated or certified;
(d) if (i) the Borrower, the Bank or any affiliate of the Borrower fails to perform or observe any covenant or agreement contained in any other agreement between the Borrower, the Bank or any affiliate of the Borrower, respectively, and the Lender, or if any condition contained in any agreement between the Borrower, the Bank or any affiliate of the
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Borrower, respectively, and the Lender is not fulfilled, and such failure or nonfulfillment remains uncured beyond the applicable time period, if any, specifically provided therefor and if no time period is stated, then such failure or nonfulfillment remains uncured for five (5) days;
(e) if the FRB, the FDIC, the SEC or other Governmental Agency charged with the regulation of bank holding companies or depository institutions: (i) issues to the Borrower or the Bank, or initiates any action, suit or proceeding to obtain against, impose on or require from the Borrower or the Bank, a cease and desist order or similar regulatory order, the assessment of civil monetary penalties, articles of agreement, a memorandum of understanding, a capital directive, a capital restoration plan, restrictions that prevent or as a practical matter impair the payment of dividends by the Bank or the payments of any debt by the Borrower, restrictions that make the payment of the dividends by the Bank or the payment of debt by the Borrower subject to prior regulatory approval, a notice or finding under Section 8(a) of the FDI Act, or any similar enforcement action, measure or proceeding; or (ii) proposes or issues to any executive officer or director of the Borrower or the Bank, or initiates any action, suit or proceeding to obtain against, impose on or require from any such officer or director, a cease and desist order or similar regulatory order, a removal order or suspension order, or the assessment of civil monetary penalties;
(f) if the Bank is notified that it is considered an institution in troubled condition within the meaning of 12 U.S.C. Section 1831i and the regulations promulgated thereunder, or if a conservator or receiver is appointed for the Bank;
(g) if (i) the Borrower or the Bank becomes insolvent or is unable to pay its debts as they mature; or makes an assignment for the benefit of creditors or admits in writing its inability to pay its debts as they mature; or (ii) suspends transaction of its usual business; or (iii) if a trustee of any substantial part of the assets of the Borrower or the Bank is applied for or appointed, and if appointed in a proceeding brought against the Borrower, the Borrower by any action or failure to act indicates its approval of, consent to, or acquiescence in such appointment, or within thirty (30) days after such appointment, such appointment is not vacated or stayed on appeal or otherwise, or shall not otherwise have ceased to continue in effect;
(h) if any proceedings involving the Borrower or the Bank are commenced by or against the Borrower or the Bank under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation law or statute of the federal government or any state government and, with respect to the Borrower only, if such proceedings are instituted against the Borrower, the Borrower by any action or failure to act indicates its approval of, consent to or acquiescence therein, or an order shall be entered approving the petition in such proceedings and within thirty (30) days after the entry thereof such order is not vacated or stayed on appeal or otherwise, or shall not otherwise have ceased to continue in effect;
(i) if any judgment or judgments, writ or writs, or warrant or warrants of attachment, or any similar process or processes, in an aggregate amount in excess of $500,000, shall be entered or filed against the Borrower or the Bank or against any of their property and which remains unvacated, unbonded, unstayed or unsatisfied for a period of thirty (30) days;
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(i) if the Borrower or the Bank is in default in any payment of principal or interest for any other obligation(s), or in the performance of any other term, condition or covenant contained in any agreement(s) (including but not limited to an agreement in connection with the acquisition of capital equipment on a title retention or net lease basis), under which any such obligation is created the effect of which default, in either case, is to cause or permit the holder of such obligation(s) to cause such obligation(s) to become due prior to its stated maturity;
(k) if the Pledged Stock, as defined in the Pledge Agreement, is attached, seized, subjected to a writ of distress warrant, or is levied upon or becomes subject to any lien, claim, security interest or other encumbrance of any kind, or comes within the possession of any receiver, trustee, custodian or assignee for the benefit of creditors;
(1) if the Borrower applies for, consents to or acquiesces in the appointment of a trustee, receiver, conservator or liquidator for itself under Chapter 7 or Chapter 11 of the United States Bankruptcy Code (the Code Provisions), or in the absence of such application, consent or acquiescence, a trustee, conservator, receiver or liquidator is appointed for the Borrower, and is not discharged within thirty (30) days, or any bankruptcy, reorganization, debt arrangement or other proceeding or any dissolution, liquidation, or conservatorship proceeding is instituted by or against the Borrower under the Code Provisions, and if instituted against the Borrower, is consented or acquiesced in by it or remains for thirty (30) days undismissed, or if the Borrower is enjoined, restrained or in any way prevented from conducting all or any material part of its business under the Code Provisions;
(m) if the Bank applies for, consents to or acquiesces in the appointment of a receiver for itself, or in the absence of such application, consent or acquiescence, a receiver is appointed for the Bank, and is not discharged within thirty (30) days;
(n) if thirty-five percent (35%) or more of the outstanding voting stock of the Borrower shall be acquired (with or without consideration), directly or indirectly, by a Person, or group of Persons acting in concert, whether in one transaction or a series of transactions, where such Person or group is not a stockholder of the Borrower as of the date of the Agreement;
(o) the TP Junior Subordinated Debentures are no longer junior and subordinate in all respects to the Loans;
(p) any lien purported to be created under any Loan Document shall cease to be, or shall be asserted by the Borrower or any of its Subsidiaries not to be, a valid and perfected lien on any collateral, with the priority required hereby, except (i) as a result of the sale or other disposition of the applicable collateral in a transaction permitted under the Loan Documents or (ii) as a result of the Lenders failure to maintain possession of any stock certificates, promissory notes or other instruments delivered to it under the Loan Documents;
(q) any Loan Document shall otherwise for any reason cease to be in full force and effect and valid, binding and enforceable in accordance with its terms after its date of execution, or the Borrower shall so state in writing; or
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(r) if the Merger and the Bank Merger shall not have been consummated on or prior to January 15, 2009.
5.2 Remedies of the Lender. Subject to Section 5.7, upon the occurrence of any Default, the Lender shall have the right, if such Default shall then be continuing, in addition to all the remedies conferred upon the Lender by law or equity or the terms of any Loan Document, to do any or all of the following, concurrently or successively, without notice to the Borrower:
(a) Declare the Senior Notes to be, and each of the Senior Notes shall thereupon become, immediately due and payable without presentment, demand, protest or notice of any kind, all of which are hereby expressly waived, anything contained herein or in either of the Senior Notes to the contrary notwithstanding; or
(b) Terminate the Lenders obligations under this Agreement to extend credit of any kind or to make any disbursement, whereupon the commitment and obligation of the Lender to extend credit or to make disbursements hereunder shall terminate; or
(c) Exercise all of its rights and remedies at law, in equity and/or pursuant to the Pledge Agreement and any document delivered pursuant thereto, including foreclosing on the Pledged Stock.
Notwithstanding anything to the contrary contained herein, upon the occurrence of a Default pursuant to item (h) or clause (iii) of item (g) or item (1) of Section 5.1, without notice by the Lender to, or demand by the Lender of, the Borrower, the Senior Notes shall become immediately due and payable. The Borrower shall pay to the Lender, upon demand, all expenses (including, without limitation, attorneys fees and expenses) of obtaining such judgment or decree or of otherwise seeking to enforce its rights under this Agreement or any of the other Loan Documents or other related documents; and all such expenses, as determined by the Lender in its sole and absolute discretion, shall, until paid, be secured by the Loan Documents and shall bear interest at the Default Rate of Interest.
5.3 Protective Advances. If a Default occurs, the Lender may (but shall in no event be required to) cure any such Default and any amounts expended by the Lender in so doing, as determined by the Lender in its sole and absolute discretion, shall (a) be deemed advanced by the Lender under an obligation to do so regardless of the identity of the Person to whom such funds are furnished, (b) constitute additional advances hereunder, the payment of which is additional indebtedness evidenced by the applicable Note(s) that correspond(s) to the subject Default, and (c) become due and owing, at the Lenders demand, with interest accruing from the date of disbursement thereof until fully paid at the Default Rate of Interest.
5.4 Other Remedies. If any Default shall occur and be continuing, the Lender may, in addition to any other rights and remedies hereunder, exercise any and all remedies provided in any of the other Loan Documents and other related documents.
5.5 No Lender Liability. To the extent permitted by law, the Lender shall have no liability for any loss, damage, injury, cost or expense resulting from any action or omission by it, or any of its representatives, which was taken, omitted or made in good faith.
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5.6 Lenders Fees and Expenses. In case of any Default hereunder, the Borrower shall pay the Lenders fees and expenses including, without limitation, attorneys fees and expenses, in connection with the enforcement of this Agreement or any of the other Loan Documents or other related documents.
5.7 Limitation of Remedies with Respect to the Subordinated Debt. If a Default under Section 5.1(1) or Section 5.1(m) shall occur, the Lender may declare the Subordinated Debenture and any other amounts due the Lender hereunder immediately due and payable, whereupon the Subordinated Debenture and such other amounts payable hereunder shall immediately become due and payable, without presentment, demand, protest or notice of any kind. If the Borrower receives a written notification from the FRB that the Subordinated Debenture no longer constitutes Tier 2 capital of the Borrower (the FRB Notice) and if thereafter any Default shall occur under Section 5.1, the Lender may declare the Subordinated Debenture and any other amounts due the Lender hereunder immediately due and payable, whereupon the Subordinated Debenture and such other amounts payable hereunder shall immediately become due and payable, without presentment, demand, protest or notice of any kind. Upon the occurrence of a Default, it is specifically understood and agreed that, notwithstanding the curing of such Default, the Borrower shall not be released from any of its covenants hereunder unless and until the Subordinated Debenture is paid in full. Upon the occurrence of a Default without notice by the Lender to or demand by the Lender of the Borrower, the Lender shall have no further obligation to and may then forthwith cease advancing monies or extending credit to or for the benefit of the Borrower under this Agreement and the other Loan Documents. The parties agree that until the earlier of the Subordinated Debt Maturity Date or the delivery of a FRB Notice, the Lender may only enforce the Borrowers obligations under the Subordinated Debenture (a) if the Borrower fails to pay interest when due on the Subordinated Debenture, in which case the Lender may pursue the Borrower for such interest, (b) if the Borrower fails to comply with any of the covenants set forth in Section 4.1 (other than Section 4.1(a) and Section 4.1(c)) and Section 4.2, in which case the Lender may pursue the Borrower to ensure that the Borrower complies with such covenants, and the Lender acknowledges that the violations contemplated in (a) and (b) above shall not, taken individually, accelerate the Subordinated Debt, or (c) if a Default occurs under Sections 5.1(1) or Section 5.1(m), in which case the first sentence of this Section 5.7 shall govern.
ARTICLE VI
MISCELLANEOUS
6.1 Waiver By the Lender. No failure or delay on the part of the Lender in exercising any right, power or remedy hereunder shall operate as a waiver thereof. No single or partial exercise of any such right, power or remedy shall preclude any other or further exercise thereof or the exercise of any other right, power or remedy hereunder. The remedies herein provided are cumulative and not exclusive of any remedies provided by law. Time is of the essence in the performance of the covenants, agreements and obligations of the Borrower and the Bank.
6.2 Entire Agreement and Modifications of Agreement. This Agreement constitutes the entire agreement between the parties and supersedes all prior agreements between the Lender and the Borrower with respect to the subject matter hereof. All exhibits or schedules
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attached hereto or referenced herein are hereby incorporated into this Agreement. The recitals set forth in this Agreement are an integral part hereof. No amendment, modification, termination or waiver of any provision of this Agreement, the Pledge Agreement or the Notes, or consent to any departure by the Borrower therefrom, shall in any event be effective unless the same shall be in writing and signed by the Lender, and then such waiver or consent shall be effective only in the specific purpose for which given. No notice to or demand on the Borrower in any case shall entitle the Borrower to any other or further notice or demand in similar or other circumstances.
6.3 Notices. All notices and requests to or upon the respective parties hereto shall be in writing and shall be deemed to have been given or made five (5) days after having been deposited in the United States mail, certified or registered with return receipt requested, or when delivered personally (by courier service such as Federal Express, or by other messenger) at the address or when dispatched by telecopy or other means of facsimile transmission, to the number set forth below:
if to the Lender:
TIB The Independent BankersBank
350 Phelps Ct., Suite 200
Irving, Texas 75038
Attention: J. Rick Jamieson, Senior Vice President
Telecopy: (972) 541-0554
if to the Borrower:
Independent Bank Group, Inc.
2530 El Dorado Parkway, Suite 200
McKinney, Texas 75070
Attention:
Telecopy:
or to such addresses as may be hereafter designated by the respective parties hereto in writing by a notice given in accordance herewith.
6.4 Facsimile; Counterparts. This Agreement may be executed by facsimile and in any number of counterparts, and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which taken together shall constitute but one and the same instrument.
6.5 Assignment and Participation. The Lender may pledge or otherwise hypothecate all or any portion of this Agreement or grant participations herein (provided the Lender acts as agent for any participants, except as provided below) or in any of its rights and security hereunder, including, without limitation, the Notes. The Lender may also assign all or any part of any Loan and the Lenders obligations in connection therewith to one or more commercial banks or other financial institutions or investors (each an Assignee Lender). The Lender shall notify the Borrower in advance of the identity of any proposed Assignee Lender.
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Upon delivery to the Borrower of an executed copy of the Assignee Lenders assignment and acceptance (a) each such Assignee Lender shall be deemed to be a party hereto and, to the extent that rights and obligations hereunder have been assigned and delegated to such Assignee Lender, such Assignee Lender shall have the rights and obligations of the Lender hereunder and under the other Loan Documents and other related documents (b) the Lender, to the extent that rights and obligations hereunder have been assigned and delegated by it, shall be released from its obligations hereunder and under the other Loan Documents (including, without limitation, the obligation to fund the Assignee Lenders share of the Loans) and other related documents. Within five (5) Business Days after receipt of a copy of the executed assignment and acceptance document, the Borrower shall execute and deliver to the Lender a new Note or Notes, as applicable (for delivery to the relevant Assignee Lender), evidencing such Assignee Lenders assigned portion of the Loans and a replacement Note or Notes, as applicable, in the principal amount of the Loans retained by the Lender (such Note(s) to be in exchange for, but not in payment of, the Note(s) then held by the Lender). Each such Note shall be dated the date of the corresponding predecessor Note. The Lender shall mark the predecessor Note exchanged and deliver it to the Borrower. Accrued interest on that part of the predecessor Note evidenced by the new Note, and accrued fees, shall be paid as provided in the assignment agreement between the Lender and to the Assignee Lender. Accrued interest on that part of the predecessor Note(s) evidenced by the replacement Note(s) shall be paid to the Lender. Accrued interest and accrued fees shall be so apportioned between the Notes and paid at the same time or times provided in the predecessor Note(s) and in this Agreement. The Borrower authorizes the Lender to disclose to any prospective Assignee Lender any financial or other information pertaining to the Borrower or the Loans. In addition, the Borrower agrees that, if so requested by the Lender, the Borrower will cause all insurance policies, binders and commitments (including, without limitation, casualty insurance and title insurance) required by the Loan Documents or other related documents to be delivered to the Lender to name the Assignee Lender as an additional insured or obligee, as the Lender may request. Anything in this Agreement to the contrary notwithstanding, and without the need to comply with any of the formal or procedural requirements of this Agreement, including this Section 6.5, the Lender may at any time and from time to time pledge and assign all or any portion of its rights under all or any of the Loan Documents and other related documents to a Federal Reserve Bank; provided that no such pledge or assignment shall release the Lender from its obligations thereunder.
6.6 Successors and Assigns . This Agreement shall become effective when it shall have been executed by the Borrower and the Lender and thereafter shall be binding upon and inure to the benefit of the Borrower and the Lender and their respective successors and assigns, except that the Borrower shall not have the right to assign its rights hereunder or any interest herein without the prior written consent of the Lender which may be given or denied in the Lenders sole and absolute discretion.
6.7 Governing Law; Venue . THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS HAVE BEEN NEGOTIATED, EXECUTED AND DELIVERED AT, AND SHALL BE DEEMED TO HAVE BEEN MADE AT, DALLAS, TEXAS. THE LOANS PROVIDED FOR HEREIN ARE TO BE FUNDED AND REPAID AT, AND THIS AGREEMENT IS OTHERWISE TO BE PERFORMED AT, DALLAS, TEXAS AND THIS AGREEMENT SHALL BE INTERPRETED, AND THE RIGHTS AND LIABILITIES OF THE PARTIES HERETO DETERMINED, IN ACCORDANCE WITH THE INTERNAL LAWS OF
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THE STATE OF TEXAS WITHOUT REFERENCE TO: (a) ITS JUDICIALLY OR STATUTORILY PRONOUNCED RULES REGARDING CONFLICT OF LAWS OR CHOICE OF LAW; (b) WHERE ANY OTHER AGREEMENT IS EXECUTED OR DELIVERED; (c) WHERE ANY PAYMENT OR OTHER PERFORMANCE REQUIRED BY ANY SUCH AGREEMENT IS MADE OR REQUIRED TO BE MADE; (d) WHERE ANY BREACH OF ANY PROVISION OF ANY SUCH AGREEMENT OCCURS, OR ANY CAUSE OF ACTION OTHERWISE ACCRUES; (e) WHERE ANY ACTION OR OTHER PROCEEDING IS INSTITUTED OR PENDING; (f) THE NATIONALITY, CITIZENSHIP, DOMICILE, PRINCIPAL PLACE OF BUSINESS, OR JURISDICTION OR ORGANIZATION OR DOMESTICATION OF ANY PARTY; (g) WHETHER THE LAWS OF THE FORUM JURISDICTION OTHERWISE WOULD APPLY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF TEXAS; OR (h) ANY COMBINATION OF THE FOREGOING. AS PART OF THE CONSIDERATION FOR NEW VALUE THIS DAY RECEIVED, THE BORROWER RECOGNIZES THAT THE LENDERS OFFICE IS LOCATED IN DALLAS, TEXAS AND THAT THE LENDER MAY BE IRREPARABLY HARMED IF REQUIRED TO INSTITUTE OR DEFEND ANY ACTIONS AGAINST THE BORROWER IN ANY JURISDICTION OTHER THAN THE NORTHERN DISTRICT OF TEXAS OR DALLAS COUNTY, TEXAS; THEREFORE, THE BORROWER IRREVOCABLY (i) AGREES THAT ANY SUIT, ACTION OR OTHER LEGAL PROCEEDING RELATING TO THE AGREEMENT AND/OR THE LOAN REFERENCED HEREIN MAY BE BROUGHT IN THE NORTHERN DISTRICT OF TEXAS, IF FEDERAL JURISDICTION IS AVAILABLE, AND, OTHERWISE, IN THE DISTRICT COURT OF DALLAS COUNTY, AT THE LENDERS OPTION; (ii) CONSENTS TO THE JURISDICTION OF EACH SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING; (iii) WAIVES ANY OBJECTION WHICH THE BORROWER OR ANY SUBSIDIARY MAY HAVE TO THE LAYING OF VENUE IN ANY SUCH SUIT, ACTION OR PROCEEDING IN EITHER SUCH COURT; AND (iv) AGREES TO JOIN THE LENDER IN ANY PETITION FOR REMOVAL TO EITHER SUCH COURT BROUGHT BY THE LENDER. NOTHING CONTAINED HEREIN SHALL AFFECT THE RIGHT OF THE LENDER TO BRING ANY ACTION OR PROCEEDING AGAINST THE BORROWER OR ITS PROPERTY IN THE COURTS OF ANY OTHER JURISDICTION.
6.8 Severability. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or affecting the validity or enforceability of such provision in any other jurisdiction; wherever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law.
6.9 Survival of Representations and Warranties. All covenants, agreements, representations and warranties made by the Borrower herein or in any certificate or other instrument delivered by it or on its behalf under this Agreement shall, notwithstanding any investigation by or knowledge on the part of the Lender, be deemed material and relied on by the Lender and shall survive the making of this Agreement, the execution and delivery of the Notes and the Pledge Agreement and the disbursement of proceeds under the Loans, and shall be deemed to be continuing representations and warranties until such time as the Borrower has satisfied all of its obligations to the Lender, including, but not limited to the obligation to pay in full all principal, interest and other amounts in accordance with the terms of this Agreement and the Notes. All warranties and representations in any such certificates or other instrument shall constitute warranties and representations by the Borrower hereunder.
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6.10 Extensions and Renewals. This Agreement shall govern the terms of any extensions or renewals to the Notes, subject to any additional terms and conditions imposed by the Lender in connection with any such extension or renewal.
6.11 Release; Indemnification. The Borrower hereby releases the Lender from any and all causes of action, claims or rights which the Borrower may now or hereafter have for, or which may arise from, any loss or damage caused by or resulting from (a) any failure of the Lender to protect, enforce against or collect upon, in whole or in part, any of the Pledged Stock and (b) any other act or omission to act on the part of the Lender, its officers, agents or employees, except in each instance for willful misconduct and gross negligence. The Borrower shall indemnify, defend and hold the Lender and its Affiliates harmless from and against any and all losses, liabilities, obligations, penalties, claims, fines, demands, litigation, defenses, costs, judgments, suits, proceedings, actual damages, disbursements or expenses of any kind or nature whatsoever (including, without limitation, attorneys fees and expenses) which may at any time be either directly or indirectly imposed upon, incurred by or asserted or awarded against the Lender or any of the Lenders Affiliates in connection with, arising from or relating to the Lenders entering into or carrying out the terms of this Agreement or being the holder of any Note, other than any loss, liability, damage, suit, claim, expense, fees or costs arising solely by reason of the Lenders or any of the Lenders Affiliates willful misconduct or gross negligence.
6.12 Certain UCC and Accounting Terms; Interpretations. Except as otherwise defined in this Agreement or the other Loan Documents, all words, terms and/or phrases used herein and therein shall be defined by the applicable definition therefore (if any) in the Uniform Commercial Code as in effect in the State of Texas. Notwithstanding the foregoing, any accounting term not specifically defined herein - shall be construed in accordance with GAAP which are applied in the preparation of the financial statements referred to in Section 3.2, and all financial data submitted pursuant to this Agreement shall be prepared in accordance with such principles. Where the character or amount of any asset or liability or item of income or expense is required to be determined or any consolidation or other accounting computation is required to be made for the purposes of this Agreement, it shall be done in accordance with GAAP except where such principles are inconsistent with the specific provisions of this Agreement. The foregoing definitions are equally applicable to both the singular and plural forms of the terms defined. The words hereof, herein and hereunder and words of like import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. The word including when used in this Agreement without the phrase without limitation, shall mean including, without limitation. All references to time of day herein are references to Dallas, Texas time unless otherwise specifically provided. Any reference contained herein to attorneys fees and expenses shall be deemed to be reasonable fees and expenses of the Lenders outside counsel and of any other third-party experts or consultants engaged by the Lenders outside counsel on the Lenders behalf. All references to any Loan Document shall be deemed to be to such document as amended, modified or restated from time to time. With respect to any reference in this Agreement to any defined term, (a) if such defined term refers to a Person, then it shall also mean all heirs, legal representatives and permitted successors and assigns of such Person, and (b) if such defined term refers to a document, instrument or agreement, then it shall also include any replacement, extension or other modification thereof.
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6.13 Additional Actions. The Borrower agrees to do or cause the Bank to do such further acts and things and to execute and deliver to the Lender such additional assignments, agreements, powers and instruments, as the Lender may reasonably require or deem advisable to carry into effect the purposes of this Agreement, the Notes, the Pledge Agreement or any agreement or instrument in connection herewith, or to better assure and confirm unto the Lender its rights, powers and remedies hereunder or under such other loan documents. Such further actions may include, but not be limited to, the filing of UCC-1 financing statements, in form satisfactory to the Lender and its counsel, with the Secretary of State of Texas in favor of the Lender with respect to the Pledged - Stock and any proceeds therefrom.
6.14 Revival of Liabilities. To the extent that the Lender receives any payment on account of the Borrowers Liabilities and any such payment(s) and/or proceeds or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside, subordinated and/or required to be repaid to a trustee, receiver or any other Person under any bankruptcy act, state or federal law, common law or equitable cause, then, to that of such payment(s) or proceeds received, the Borrowers Liabilities or part thereof intended to be satisfied shall be revived and continue in full force and effect, as if such payment(s) and/or proceeds had not been received by the Lender and applied on account of the Borrowers Liabilities; provided, however, if the Lender successfully contests any such invalidation, declaration, set aside, subordination or other order to pay any such payment and/or proceeds to any third party, the revived Borrowers Liabilities shall be deemed satisfied.
6.15 Change of Control. The Lender shall have the option, exercisable on at least one Business Days prior notice, upon the consummation, in whole or in part, of any transaction effecting any change of control of the Borrower that has been approved as such by any federal or state regulatory agency, to declare the entire principal of and interest accrued on the Term Loan then outstanding to be, and the Term Loan, the Senior Notes and all of Borrowers Liabilities shall thereupon become, forthwith, due and payable, without any presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived, and the Borrower shall forthwith pay to each holder of a Term Loan the entire outstanding principal of and interest accrued on each such Senior Note and to the Lender the Borrowers Liabilities. For purposes of this Section 6.15 only, following receipt by the Borrower of a FRB Notice, the terms Senior Notes and Borrowers Liabilities shall be deemed to include the Subordinated Debt, the Subordinated Debenture and all of the obligations of the Borrower in connection therewith, as applicable.
6.16 Brokerage Commissions. The Borrower shall indemnify, defend and hold the Lender and its Affiliates harmless from and against any and all losses, liabilities, obligations, penalties, claims, fines, lost profits, demands, litigation, defenses, costs, judgments, suits, proceedings, damages, disbursements or expenses of any kind or nature whatsoever (including, without limitation, attorneys fees and expenses), consequential or otherwise, which may at any time be either directly or indirectly imposed upon, incurred by or asserted or awarded against the Lender or any of its Affiliates in connection with, arising out of or relating to any claim of a brokers or finders fee against the Lender or any Person in connection with the transaction herein contemplated arising out of or relating to the Borrowers or the Lenders action or inaction.
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6.17 Publicity. The Borrower shall not publicize any Loan without the prior written consent of the Lender.
6.18 No Third Party Beneficiary. This Agreement is made for the sole benefit of the Borrower and the Lender, and no other Person shall be deemed to have any privity of contract hereunder nor any right to rely hereon to any extent or for any purpose whatsoever, nor shall any other Person have any right of action of any kind hereon or be deemed to be a third party beneficiary hereunder.
6.19 Captions. Captions contained in this Agreement in no way define, limit or extend the scope or intent of their respective provisions.
6.20 Knowledge; Discretion. All references herein to a partys best knowledge shall be deemed to mean the best knowledge of such party based on commercially reasonable inquiry. All references herein to the Borrowers knowledge shall be deemed to refer to the knowledge of the Borrower and each Financial Institution Subsidiary. Unless specified to the contrary herein, all references herein to an exercise of discretion or judgment by the Lender, to the making of a determination or designation by the Lender, to the application of the Lenders discretion or opinion, to the granting or withholding of the Lenders consent or approval, to the consideration of whether a matter or thing is satisfactory or acceptable to the Lender, or otherwise involving the decision making of the Lender, shall be deemed to mean that the Lender shall decide unilaterally using its sole and absolute discretion or judgment.
[Remainder of Page Intentionally Left Blank]
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THE BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT THAT IT MAY HAVE TO A TRIAL BY JURY IN ANY LITIGATION ARISING IN ANY WAY IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS, OR ANY OTHER STATEMENTS OR ACTIONS OF THE BORROWER OR THE LENDER. THE BORROWER ACKNOWLEDGES THAT IT HAS BEEN REPRESENTED IN THE SIGNING OF THIS AGREEMENT AND IN THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL COUNSEL SELECTED OF ITS OWN FREE WILL, AND THAT IT HAS DISCUSSED THIS WAIVER WITH SUCH LEGAL COUNSEL. BORROWER FURTHER ACKNOWLEDGES THAT (i) IT HAS READ AND UNDERSTANDS THE MEANING AND RAMIFICATIONS OF THIS WAIVER, (ii) THIS WAIVER HAS BEEN REVIEWED BY BORROWER AND BORROWERS COUNSEL AND IS A MATERIAL INDUCEMENT FOR THE LENDER TO ENTER INTO THE LOAN DOCUMENTS, AND (iii) THIS WAIVER SHALL BE EFFECTIVE AS TO EACH OF THE LOAN DOCUMENTS AS IF FULLY INCORPORATED THEREIN.
IN WITNESS WHEREOF, the parties hereto have caused this Loan and Subordinated Debenture Purchase Agreement to be executed as of the date first above written.
INDEPENDENT BANK GROUP, INC. | ||||
By: |
/s/ David R. Brooks |
|||
Name: | David R. Brooks | |||
Title: | Chairman of the Board | |||
TIB THE INDEPENDENT BANKERSBANK | ||||
By: |
/s/ J. Rick Jamieson |
|||
Name: | J. Rick Jamieson | |||
Title: | Senior Vice President |
S-1
Exhibit 10.2
TERM PROMISSORY NOTE
$12,000,000.00 | December 24, 2008 |
FOR VALUE RECEIVED, the undersigned, INDEPENDENT BANK GROUP, INC., a bank holding company incorporated under the laws of the State of Texas, having its principal place of business at 2530 El Dorado Parkway, Suite 200, McKinney, Texas 75070 (the Borrower), hereby promises to pay to the order of TIB THE INDEPENDENT BANKERSBANK, a Texas state banking association and member of the Federal Reserve System having a place of business at 350 Phelps Drive, Irving, Texas 75038 (the Lender), in such coin or currency of the United States which shall be legal tender in payment of all debts and dues, public and private, at the time of payments, the principal sum of Twelve Million and 00/100 Dollars ($12,000,000.00), or whatever lesser amount of principal remains unpaid and owing from time to time.
The unpaid principal balance plus all accrued but unpaid interest hereunder and any other amounts owing with respect to this Note shall be due and payable on December 24, 2016 or such earlier date on which such amount shall become due and payable on account of acceleration by the Lender pursuant to the Agreement.
This Note is referred to in, and was executed and delivered pursuant to, that certain Loan and Subordinated Debenture Purchase Agreement dated as of the date hereof by the Borrower and the Lender (as amended, restated, supplemented or modified from time to time, the Agreement), to which reference is hereby made for a statement of the terms and conditions under which the loan evidenced hereby is to be repaid and for a statement of remedies upon the occurrence of a Default as defined therein. The Agreement is incorporated herein by reference in its entirety. All terms which are capitalized and used herein (which are not otherwise specifically defined herein) and which are defined in the Agreement shall be used in this Note as defined in the Agreement.
The initial Advance under the Loan shall be treated as a Prime Rate Advance. All accrued but unpaid interest on the principal balance of the Term Loan outstanding from time to time shall be payable (a) the last Business Day of each fiscal quarter beginning with March 31, 2009, and (b) the Term Loan Maturity Date. The Borrower shall pay to the Lender the aggregate outstanding principal amount of all of the Term Loan as follows: (i) thirty-two (32) consecutive quarterly principal installments of $375,000 [to be based on an eight (8) year amortization] each due and payable on the last Business Day of each fiscal quarter beginning with March 31, 2009; and (ii) one final installment in the amount of all unpaid principal of the Term Loan due and payable on the Term Loan Maturity Date.
Upon the occurrence of any Default, the Default Rate of Interest as provided in Section 1.4(c) of the Agreement shall apply. Interest due hereunder may, at the Lenders option, be charged to the Borrowers account, if any, with the Lender.
It is the intention of the parties hereto to conform strictly to applicable usury laws as in effect from time to time during the term of the Loan. Accordingly, if any transaction
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contemplated hereby would be usurious under applicable law (including the laws of The United States of America, or of any other jurisdiction whose laws may be mandatorily applicable), then, in that event, notwithstanding anything to the contrary in the Agreement or this Note, it is agreed that the aggregate of all consideration that constitutes interest under applicable law that is contracted for, charged or received under the Agreement or this Note or otherwise in connection with the Agreement or this Note shall under no circumstances exceed the maximum amount of interest allowed by applicable law, and any excess shall be credited to the Borrower by the Lender (or if such consideration shall have been paid in full, such excess refunded to the Borrower by the Lender). All sums paid, or agreed to be paid, to or for the benefit of the Lender in accordance with the terms of this paragraph shall, to the extent permitted by applicable law, be amortized, prorated, allocated, and spread throughout the full term of such indebtedness until payment in full so that the actual rate of interest is uniform the full term thereof.
To the extent permitted by applicable law, the Borrower, for itself and its legal representatives, successors and assigns, expressly waives presentment, demand, protest, notice of dishonor, notice of nonpayment, notice of maturity, notice of protest, presentment for the purpose of accelerating maturity, diligence in collection, and the benefit of any exemption under the homestead exemption laws, if any, or any other exemption or insolvency laws, and consents that the Lender may release or surrender, exchange or substitute any real estate and/or personal property or other collateral security now held or which may hereafter be held as security for the payment of this Note, and may extend the time for payment or (with the consent of the Borrower) otherwise modify the terms of payment for any part or the whole of the indebtedness evidenced hereby.
Although the principal amount of this Note may be prepaid pursuant to certain optional prepayment provisions of the Agreement, no Prime Rate Advance may be voluntarily prepaid prior to the last day of the Interest Period applicable thereto or prior to the date that is two (2) years after the Closing Date of the Term Loan. Upon or at any time after the occurrence or existence of a Default, the Lender shall be entitled, at its option and subject to the terms of the Agreement, to accelerate the then outstanding indebtedness hereunder and take such other action as provided for in the Agreement.
THIS NOTE HAS BEEN NEGOTIATED, EXECUTED AND DELIVERED AT, AND SHALL BE DEEMED TO HAVE BEEN MADE AT, DALLAS, TEXAS. THE LOAN REFERENCED HEREIN IS TO BE FUNDED AND REPAID AT, AND THIS NOTE IS OTHERWISE TO BE PERFORMED AT, DALLAS, TEXAS AND THIS NOTE SHALL BE INTERPRETED, AND THE RIGHTS AND LIABILITIES OF THE PARTIES HERETO DETERMINED, IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF TEXAS WITHOUT REFERENCE TO: (a) ITS JUDICIALLY OR STATUTORILY PRONOUNCED RULES REGARDING CONFLICT OF LAWS OR CHOICE OF LAW; (b) WHERE ANY OTHER INSTRUMENT IS EXECUTED OR DELIVERED; (c) WHERE ANY PAYMENT OR OTHER PERFORMANCE REQUIRED BY ANY SUCH INSTRUMENT IS MADE OR REQUIRED TO BE MADE; (d) WHERE ANY BREACH OF ANY PROVISION OF ANY SUCH INSTRUMENT OCCURS, OR ANY CAUSE OF ACTION OTHERWISE ACCRUES; (e) WHERE ANY ACTION OR OTHER PROCEEDING IS INSTITUTED OR PENDING; (f) THE NATIONALITY, CITIZENSHIP, DOMICILE, PRINCIPAL PLACE OF
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BUSINESS, OR JURISDICTION OR ORGANIZATION OR DOMESTICATION OF ANY PARTY; (g) WHETHER THE LAWS OF THE FORUM JURISDICTION OTHERWISE WOULD APPLY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF TEXAS; OR (h) ANY COMBINATION OF THE FOREGOING. AS PART OF THE CONSIDERATION FOR NEW VALUE THIS DAY RECEIVED, BORROWER RECOGNIZES THAT THE LENDERS PRINCIPAL OFFICE IS LOCATED IN DALLAS, TEXAS AND THAT THE LENDER MAY BE IRREPARABLY HARMED IF REQUIRED TO INSTITUTE OR DEFEND ANY ACTIONS AGAINST BORROWER IN ANY JURISDICTION OTHER THAN THE NORTHERN DISTRICT OF TEXAS OR DALLAS COUNTY, TEXAS; THEREFORE, BORROWER IRREVOCABLY (i) AGREES THAT ANY SUIT, ACTION OR OTHER LEGAL PROCEEDING RELATING TO THE NOTE AND/OR THE LOAN EVIDENCED HEREBY MAY BE BROUGHT IN THE NORTHERN DISTRICT OF TEXAS, IF FEDERAL JURISDICTION IS AVAILABLE, AND, OTHERWISE, IN THE DISTRICT COURT OF DALLAS COUNTY, AT THE LENDERS OPTION; (ii) CONSENTS TO THE JURISDICTION OF EACH SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING; (iii) WAIVES ANY OBJECTION WHICH BORROWER MAY HAVE TO THE LAYING OF VENUE IN ANY SUCH SUIT, ACTION OR PROCEEDING IN EITHER SUCH COURT; AND (iv) AGREES TO JOIN THE LENDER IN ANY PETITION FOR REMOVAL TO EITHER SUCH COURT BROUGHT BY THE LENDER. NOTHING CONTAINED HEREIN SHALL AFFECT THE RIGHT OF THE LENDER TO BRING ANY ACTION OR PROCEEDING AGAINST THE BORROWER OR ITS PROPERTY IN THE COURTS OF ANY OTHER JURISDICTION.
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THE BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT THAT IT MAY HAVE TO A TRIAL BY JURY IN ANY LITIGATION ARISING IN ANY WAY IN CONNECTION WITH THIS NOTE OR ANY OF THE OTHER LOAN DOCUMENTS, OR ANY OTHER STATEMENTS OR ACTIONS OF THE BORROWER OR THE LENDER. THE BORROWER ACKNOWLEDGES THAT IT HAS BEEN REPRESENTED IN THE SIGNING OF THIS NOTE AND IN THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL COUNSEL SELECTED OF ITS OWN FREE WILL, AND THAT IT HAS DISCUSSED THIS WAIVER WITH SUCH LEGAL COUNSEL. BORROWER FURTHER ACKNOWLEDGES THAT (i) IT HAS READ AND UNDERSTANDS THE MEANING AND RAMIFICATIONS OF THIS WAIVER, (ii) THIS WAIVER HAS BEEN REVIEWED BY BORROWER AND BORROWERS COUNSEL AND IS A MATERIAL INDUCEMENT FOR THE LENDER TO ENTER INTO THE LOAN DOCUMENTS, AND (iii) THIS WAIVER SHALL BE EFFECTIVE AS TO EACH OF THE LOAN DOCUMENTS AS IF FULLY INCORPORATED THEREIN.
IN WITNESS WHEREOF, the Borrower has caused this Note to be duly executed as of the date first above written.
INDEPENDENT BANK GROUP, INC. | ||
By: |
/s/ David R. Brooks |
|
Name: David R. Brooks | ||
Title: Chairman of the Board |
ATTEST: | ||
By: |
/s/ Jan Webb |
|
Name: Jan Webb |
||
Title:EVP/Secretary |
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Exhibit 10.3
SUBORDINATED DEBENTURE
THIS SUBORDINATED DEBENTURE IS NOT A |
SAVINGS ACCOUNT
OR DEPOSIT AND IT IS NOT INSURED BY THE FEDERAL
DEPOSIT INSURANCE CORPORATION OR ANY FEDERAL AGENCY.
$4,500,000.00 | December 24, 2008 |
FOR VALUE RECEIVED, the undersigned, INDEPENDENT BANK GROUP, INC., a bank holding company incorporated under the laws of the State of Texas, having its principal place of business at 2530 El Dorado Parkway, Suite 200, McKinney, Texas 75070 (the Borrower), hereby promises to pay to the order of TIB THE INDEPENDENT BANKERSBANK, a Texas state banking association and member of the Federal Reserve System having a place of business at 350 Phelps Drive, Irving, Texas 75038 (the Lender), or any holder hereof from time to time (the Lender), at such place as may be designated in writing by the Lender, the principal sum of FOUR MILLION FIVE HUNDRED THOUSAND AND NO/100 DOLLARS ($4,500,000.00) (or so much thereof that has been advanced and remains outstanding) with interest thereon as hereinafter provided. This Subordinated Debenture (this Subordinated Debenture) is issued pursuant to the terms of a Loan and Subordinated Debenture Purchase Agreement of even date herewith by and between the Borrower and the Lender (as may be amended, restated, supplemented or modified from time to time, the Agreement). All capitalized terms used but not defined herein shall have the respective meanings ascribed to them in the Agreement.
All accrued interest and unpaid principal due and payable under this Subordinated Debenture shall be paid in full on or before the Subordinated Debt Maturity Date.
The unpaid principal amount outstanding under this Subordinated Debenture from time to time shall bear interest before maturity in accordance with the Agreement, computed on the basis of a 360-day year and charged for actual days elapsed. Under certain circumstances as provided in the Agreement, overdue interest payments under this Subordinated Debenture shall bear interest from the due date thereof until paid at a daily rate equal to the Default Rate of Interest, computed on the basis of a 360-day year and charged for actual days elapsed, except as otherwise provided in the Loan Agreement.
All accrued but unpaid interest on the principal balance of the Subordinated Debt outstanding from time to time shall be payable on (a) the last Business Day of each calendar year beginning with March 31, 2009, and (b) the Subordinated Debt Maturity Date. The Borrower shall pay to the Lender the aggregate outstanding principal amount of all of the Subordinated Debt as follows: (i) twenty-four (24) consecutive quarterly principal installments of $187,500 [to be based on a six (6) year amortization] each due and payable on the last Business Day of each calendar quarter beginning with March 31, 2011; and (ii) one final installment in the amount of all unpaid principal of the Subordinated Debt due and payable on the Subordinated Debt Maturity Date. There shall be no penalties or other charges payable by the Borrower to the Lender hereunder other than those payments described in this Subordinated Debenture or in the
Loan Agreement. Except as otherwise provided in the Agreement, the Borrower may prepay all or, from time to time, part of the outstanding unpaid principal balance under this Subordinated Debenture at any time without a prepayment fee; provided, however, that Borrower may not prepay any portion of this Subordinated Debenture prior to the date that is two (2) years after the Closing Date of the Subordinated Debt.
This Subordinated Debenture is not secured by any assets of the Borrower.
So long as any portion of the unpaid principal of this Subordinated Debenture is deemed to be Tier 2 Capital of the Borrower in accordance with the rules and regulations of the FRB applicable to the capital status of the subordinated debt of bank holding companies, the rights of the Lender to the principal sum hereunder or any part hereof and to any accrued interest thereon shall remain subject and subordinate (in accordance with SR 92-37 issued by the FRB on October 15, 1992) to the claims of creditors of the Borrower with respect to the following (Senior Claims): (a) borrowed and purchased money; (b) similar obligations arising from offbalance-sheet guaranties and direct-credit substitutes; and (c) obligations associated with derivative products such as interest-rate and foreign exchange-rate contracts, commodity contracts, and similar arrangements (clauses (a), (b) and (c) expressly exclude Trust Preferred Indebtedness, as defined below, with respect to which the rights of the Lender are senior in all respects). Upon dissolution or liquidation of the Borrower, no payment of principal, interest or premium (including post-default interest) shall be due and payable under the terms of this Subordinated Debenture until all Senior Claims (which expressly exclude claims relating to the Trust Preferred Indebtedness) shall have been paid in full. If this Subordinated Debenture ceases to be deemed to be Tier 2 Capital of the Borrower in accordance with the rules and regulations of the FRB applicable to the capital status of the subordinated debt of bank holding companies, other than due to the limitations imposed by the second sentence of 12 C.F.R. 250.166(e)(1), which limits the capital treatment of subordinated debt during the five years immediately preceding the maturity date of the subordinated debt, the Borrower shall immediately notify the Lender, and immediately upon request of the Lender execute and deliver all such agreements (including without limitation pledge agreements and replacement notes) as the Lender may request in order to restructure the obligation evidenced hereby as a senior, secured obligation of the Borrower. If the Borrower fails to execute such agreements as required by the Lender within 30 days of the Lenders request, such failure shall be deemed to be a Default under Section 5.1 of the Agreement.
As used herein, Trust Preferred Indebtedness shall mean indebtedness incurred in connection with, or relating to, any trust preferred securities caused to be issued by, or reflected in the consolidated financial statements of, the Borrower, including the subordinated indebtedness evidenced by the TP Junior Subordinated Debentures.
If a Default shall occur, the Lender shall have the rights set forth in Section 5.7 of the Loan Agreement.
If any attorney is engaged by the Lender to enforce or defend any provision of this Subordinated Debenture or any of the other Loan Documents, or as a consequence of any Event of Default, with or without the filing of any legal action or proceeding, then the Borrower shall pay to the Lender immediately upon demand all attorneys fees and expenses, together with interest thereon from the date of such demand until paid at the rate of interest applicable to the principal balance owing hereunder as if such unpaid attorneys fees and expenses had been added to the principal.
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No previous waiver and no failure or delay by the Lender in acting with respect to the terms of this Subordinated Debenture or any of the other Documents shall constitute a waiver of any breach, default or failure of condition under this Subordinated Debenture, the Agreement or any of the other Loan Documents or the obligations secured thereby. A waiver of any term of this Subordinated Debenture or any of the other Loan Documents or of any of the obligations secured thereby must be made in writing and shall be limited to the express written terms of such waiver. In the event of any inconsistencies between the terms of this Subordinated Debenture and the terms of any other document related to the Loan evidenced by this Subordinated Debenture, the terms of this Subordinated Debenture shall prevail.
Except as otherwise provided in the Agreement, the Borrower expressly waives presentment, demand, notice of dishonor, notice of default or delinquency, notice of acceleration, notice of protest and nonpayment, notice of costs, expenses or losses and interest thereon, notice of late charges, and diligence in taking any action to collect any sums owing under this Subordinated Debenture. In addition, the Borrower expressly agrees that this Subordinated Debenture and any payment coming due hereunder may be extended from time to time without in any way affecting the liability of any such party hereunder.
Time is of the essence with respect to every provision hereof. This Subordinated Debenture shall be construed and enforced in accordance with the laws of the State of Texas, except to the extent that federal laws preempt the laws of the State of Texas, and all Persons in any manner obligated under this Subordinated Debenture consent to the jurisdiction of any federal or State court within the State of Texas having proper venue and also consent to service of process by any means authorized by Texas or Federal law. Any reference contained herein to attorneys fees and expenses shall be deemed to be to reasonable fees and expenses and to include all reasonable fees and expenses of in-house or staff attorneys and the reasonable fees and expenses of any other experts or consultants.
All agreements between the Borrower and the Lender (including, without limitation, this Subordinated Debenture and the Agreement, and any other documents securing all or any part of the indebtedness evidenced hereby) are expressly limited so that in no event whatsoever shall the amount paid or agreed to be paid to the Lender exceed the highest lawful rate of interest permissible under applicable law. If, from any circumstances whatsoever, fulfillment of any provision hereof, the Agreement or any other documents securing all or any part of the indebtedness evidenced hereby at the time performance of such provisions shall be due, shall involve exceeding the limit of validity prescribed by law which a court of competent jurisdiction may deem applicable hereto, then, ipso facto, the obligation to be fulfilled shall be reduced to the highest lawful rate of interest permissible under such applicable laws, and if, for any reason whatsoever, the Lender shall ever receive as interest an amount which would be deemed unlawful under such applicable law, such interest shall be automatically applied to the payment of the principal of this Subordinated Debenture (whether or not then due and payable) and not to the payment of interest or refunded to the Borrower if such principal has been paid in full.
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The Lender may sell, assign, pledge or otherwise transfer or encumber any or all of its interest under this Subordinated Debenture at any time and from time to time. In the event of a transfer, all terms and conditions of this Subordinated Debenture shall be binding upon and inure to the benefit of the transferee after such transfer.
Upon receipt of notice from the Lender advising the Borrower of the loss, theft, destruction or mutilation of this Subordinated Debenture, the Borrower shall execute and deliver in lieu thereof a new debenture in principal amount equal to the unpaid principal amount of such lost, stolen, destroyed or mutilated debenture, dated the date to which interest has been paid on such lost, stolen, destroyed or mutilated Subordinated Debenture.
Unless otherwise provided in the Agreement, all payments on account of the indebtedness evidenced by this Subordinated Debenture shall be first applied to the payment of costs and expenses of the Lender which are due and payable, then to past-due interest on the unpaid principal balance and the remainder to principal.
Any notice which either party hereto may be required or may desire to give hereunder shall be governed by the notice provisions of the Agreement.
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THE BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT THAT IT MAY HAVE TO A TRIAL BY JURY IN ANY LITIGATION ARISING IN ANY WAY IN CONNECTION WITH THIS SUBORDINATED DEBENTURE OR ANY OF THE OTHER LOAN DOCUMENTS, OR ANY OTHER STATEMENTS OR ACTIONS OF THE BORROWER OR THE LENDER, THE BORROWER ACKNOWLEDGES THAT IT HAS BEEN REPRESENTED IN THE SIGNING OF THIS SUBORDINATED DEBENTURE AND IN THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL COUNSEL SELECTED OF ITS OWN FREE WILL, AND THAT IT HAS DISCUSSED THIS WAIVER WITH SUCH LEGAL COUNSEL. BORROWER FURTHER ACKNOWLEDGES THAT (i) IT HAS READ AND UNDERSTANDS THE MEANING AND RAMIFICATIONS OF THIS WAIVER, (ii) THIS WAIVER HAS BEEN REVIEWED BY BORROWER AND BORROWERS COUNSEL AND IS A MATERIAL INDUCEMENT FOR THE LENDER TO ENTER INTO THE LOAN DOCUMENTS, AND (iii) THIS WAIVER SHALL BE EFFECTIVE AS TO EACH OF THE LOAN DOCUMENTS AS IF FULLY INCORPORATED THEREIN.
IN WITNESS WHEREOF, the Borrower has caused this Subordinated Debenture to be duly executed as of the date first above written.
INDEPENDENT BANK GROUP, INC. | ||
By: |
/s/ David R. Brooks |
|
Name: | David R. Brooks | |
Title: | Chairman of the Board |
ATTEST: | ||
By: |
/s/ Jan Webb |
|
Name: Jan Webb |
||
Title: EVP/Secretary |
Exhibit 10.4
PLEDGE AND SECURITY AGREEMENT
THIS PLEDGE AND SECURITY AGREEMENT (this Pledge Agreement) is dated as of December 23, 2008 and is made by and between INDEPENDENT BANK GROUP, INC., a Texas corporation, having its principal place of business at 2530 El Dorado Parkway, Suite 200, McKinney, Texas 75070 (the Pledgor), and TIB THE INDEPENDENT BANKERSBANK, a Texas state banking association and member of the Federal Reserve System having a place of business at 350 Phelps Drive, Irving, Texas 75038 (the Lender).
RECITALS:
A. The Pledgor is a bank holding company that owns 100% of the issued and outstanding capital stock of Independent Bank, having its principal place of business in McKinney, Texas (the Bank).
B. The Pledgor has requested that the Lender provide it with two credit facilities in the aggregate principal amount of $16,500,000 consisting of: (i) a Term Loan in the principal amount of $12,000,000, and (ii) Subordinated Debt in the principal amount of $4,500,000 (collectively, the Loans), in accordance with the terms of and subject to the conditions set forth in Loan Agreement (as defined below).
C. Pledgor acknowledges that such Pledgor will benefit from the consummation of the transactions contemplated pursuant to the Loan Agreement, and that this Pledge Agreement and the transactions contemplated herein have been executed and undertaken in order to induce the Lender to make the Loans the Borrower.
D. This Pledge Agreement has been executed and delivered by the Pledgor to the Lender pursuant to Section 2.1 of the Loan Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, conditions and agreements set forth herein, and to induce the Lender to enter into the Loan Agreement and to make the Term Loan and other financial accommodations to the Pledgor, the parties hereby agree as follows:
AGREEMENT:
ARTICLE I
DEFINITIONS
1.1 Defined Terms. The following capitalized terms generally used in this Pledge Agreement shall have the meanings defined or referenced below (such meanings to be equally applicable to both the singular and the plural forms of the term defined). Certain other capitalized terms used in specific sections of this Pledge Agreement may be defined in such sections.
(a) Best Efforts means commercially reasonable, good faith efforts.
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(b) Certificates means any and all notes, warrants, options, stock certificates or other documents or instruments now or hereafter received or receivable by the Pledgor and representing the Pledgors interest in the Pledged Stock.
(c) Loan Agreement means that certain Loan and Subordinated Debenture Purchase Agreement of even date herewith between the Lender and the Pledgor, as may be amended, restated, supplemented or modified from time to time, and which is hereby incorporated by reference in this Pledge Agreement.
(d) Pledged Stock means: (i) the shares of capital stock of the Bank as described on the attached Schedule A hereto and any and all other shares of capital stock issued by the Bank previously or hereafter acquired by the Pledgor, whether directly from the Bank or otherwise and whether such other shares are now or hereafter in the possession of the Pledgor, the Lender or other holder; (ii) all stock and other securities or property which are issued pursuant to conversion, redemption, exercise of rights, stock split, recapitalization, reorganization, stock dividends or other corporate act which are referable to the shares referenced in clause (i) or this clause (ii) (collectively, the Additional Pledged Securities); (iii) all distributions, whether cash or otherwise, in the nature of a partial or complete liquidation, dissolution or winding up which are referable to the shares referenced in clause (i) or clause (ii) (such distributions are hereinafter referred to as Liquidating Distributions); and (iv) all substitutions for any of the foregoing, proceeds of and from any of the foregoing and all interest, cash dividends or other payments in respect of any of the foregoing.
1.2 Other Defined Terms. All other capitalized terms used herein have the meanings assigned to them in the Loan Agreement.
1.3 Exhibits and Schedules Incorporated. All exhibits and schedules attached hereto or referenced herein, are hereby incorporated into this Pledge Agreement.
ARTICLE H
PLEDGE AND GRANT OF SECURITY INTERESTS
The Pledgor hereby pledges, collaterally assigns, hypothecates and transfers to the Lender all Pledged Stock, together with appropriate undated assignments separate from the Certificates duly executed in blank, and hereby grants to and creates in favor of the Lender liens and security interests in the Pledged Stock as collateral security for (a) the due and punctual payment when due (whether at maturity, by acceleration or otherwise) in full of all amounts due under the Senior Notes (as the same may be amended, restated, supplemented, modified, extended or replaced from time to time) in the aggregate face amount as of the date hereof of Twelve Million Dollars ($12,000,000) executed and delivered by the Borrower to the Lender pursuant to the Loan Agreement; (b) the due and punctual performance and observance by the Borrower of all other Borrowers Liabilities; (c) the due and punctual performance and observance by the Borrower of all of its agreements, obligations, liabilities and duties under the Loan Agreement and the other Loan Documents and the Pledgor under this Pledge Agreement; (d) all amounts due to the Lender under the Senior Notes, including any and all modifications, extensions, renewals or refinancings thereof and including, without limitation, all principal, interest and other amounts due under the Senior Notes; (e) all sums advanced by, or on behalf of,
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the Lender in connection with, or relating to, the Loan Agreement, the Senior Notes or the Pledged Stock including, without limitation, any and all sums advanced to preserve the Pledged Stock, or to perfect the Lenders security interest in the Pledged Stock; (1) in the event of any proceeding to enforce the satisfaction of the obligations, or any of them, or to preserve and protect their rights under the Loan Agreement, the Senior Notes, this Pledge Agreement or any other agreement, document or instrument relating to the transactions contemplated in the Loan Agreement, the reasonable expenses of retaking, holding, preparing for sale, selling or otherwise disposing of or realizing on the Pledged Stock, or of any exercise by the Lender of its rights, together with reasonable attorneys fees, expenses and court costs; (g) any indebtedness, obligation or liability of the Pledgor to the Lender, whether direct or indirect, joint or several, absolute or contingent, now or hereafter existing, however created or arising and however evidenced; (h) any indebtedness, obligation or liability of the Pledgor under or in connection with any interest rate swap, cap, collar or other hedging or derivative agreement, to which the Lender or any affiliate of the Lender is the counterparty, intended to mitigate interest rate risk, along with any other related agreement or instrument executed in connection therewith; and (i) all costs incurred by the Lender to obtain, perfect, preserve and enforce the liens and security interests granted by this Pledge Agreement, the Loan Agreement and the other Loan Documents, to collect the Obligations Secured Hereby (as defined below) and to maintain and preserve the Pledged Stock, with such costs including, without limitation, expenditures made by the Lender for attorneys fees and other legal expenses and expenses of collection, possession and sale of the Pledged Stock, together with interest on all such costs at the Default Rate (the foregoing subsections (a) through (h) are collectively referred to herein as the Obligations Secured Hereby). Notwithstanding anything above in this Article H to the contrary, (a) the Pledged Stock shall not be collateral security for amounts outstanding under the Subordinated Debenture that are deemed to be Tier 2 Capital of the Borrower in accordance with the rules and regulations of the FRB applicable to the capital status of the subordinated debt of bank holding companies, without giving effect to the limitation imposed by the second sentence of 12 C.F.R. 250.166(e)(1), which limits the capital treatment of subordinated debt during the five years immediately preceding the maturity date of the subordinated debt, and (b) the Obligations Secured Hereby shall not include amounts outstanding under the Subordinated Debenture.
ARTICLE III
DELIVERY OF PLEDGED STOCK
On the date hereof, the Pledgor shall place the Pledged Stock in pledge by delivering the Certificates to and depositing them with the Lender or its agent appointed in writing by the Lender. The Pledgor shall also deliver to the Lender or its agent concurrently therewith undated assignments separate from the Certificates duly executed in blank and all other applicable and appropriate documents and assignments in form suitable to enable the Lender to effect the transfer of all or any portion of the Pledged Stock to the extent hereinafter provided.
ARTICLE IV
ADDITIONAL COLLATERAL
4.1 Delivery of Additional Pledged Securities. If the Pledgor shall hereafter become entitled to receive or shall receive any interest, cash dividends, cash proceeds, any Additional Pledged Securities, any Liquidating Distributions, or any other cash or non-cash
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payments on account of the Pledged Stock, the Pledgor agrees to accept the same as the Lenders agent and to hold the same in trust on behalf of and for the benefit of the Lender and agrees to promptly deliver to same or any Certificates therefor forthwith to the Lender or its agent in the exact form received, with the endorsement of the Pledgor, when necessary, or appropriate undated assignments separate from the Certificates duly executed in blank, to be held by the Lender or its agent subject to the terms hereof.
4.2 Proceeds; Dividends and Voting. Notwithstanding anything contained in this Pledge Agreement to the contrary, the Pledgor shall be entitled to receive or shall receive such interest and cash dividends paid on account of the Pledged Stock, and to exercise voting rights with respect to the Pledged Stock, so long as there has not occurred any Default under the Loan Agreement or this Pledge Agreement (a Default under this Pledge Agreement being defined in Section 7.1).
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE PLEDGOR
To induce the Lender to enter into this Pledge Agreement and the Loan Agreement, the Pledgor makes the following representations and warranties to (and covenants with) the Lender:
5.1 The Pledgor is a corporation duly organized, validly existing and in good standing under the laws of the State of Texas.
5.2 The execution and delivery of this Pledge Agreement and the performance by the Pledgor of its obligations hereunder are within the Pledgors corporate powers and have been duly authorized by all necessary corporate action.
5.3 The Pledgor owns beneficially and of record all of the issued and outstanding shares of capital stock of the Bank and has good and marketable title to all of the Pledged Stock.
5.4 The Pledgor holds the Pledged Stock free and clear of all liens, charges, encumbrances, security interests, options, voting trusts and restrictions of every kind and nature whatsoever except only the liens and security interests created by this Pledge Agreement or otherwise in favor of the Lender.
5.5 Each security which is a part of the Pledged Stock has been duly authorized and validly issued and is fully paid and nonassessable.
5.6 This Pledge Agreement has been duly executed and delivered by the Pledgor and constitutes the legal, valid and binding obligation of the Pledgor enforceable against it in accordance with its terms, subject to bankruptcy, insolvency, reorganization or similar laws affecting creditors rights generally and subject to general principles of equity.
5.7 No consent or approval of any governmental body, regulatory authority or securities exchange or other Person is required to be obtained by the Pledgor in connection with the execution, delivery and performance of this Pledge Agreement other than those that have been obtained already.
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5.8 The execution, delivery and performance of this Pledge Agreement will not violate any provision of any applicable law or regulation or of any writ or decree of any court or governmental instrumentality or of any indenture, contract, agreement or other undertaking to which the Pledgor is a party or which purports to be binding upon the Pledgor or upon any of its assets and will not result in the creation or imposition of any lien, charge or encumbrance on or security interest in any of the assets of the Pledgor except as contemplated by this Pledge Agreement or otherwise in favor of the Lender.
5.9 The pledge, assignment and delivery of the Pledged Stock pursuant to this Pledge Agreement creates a valid first lien and first and senior security interest in the Pledged Stock, which lien and security interest are perfected upon delivery of the Certificates to the Lender.
ARTICLE VI
THE PLEDGORS COVENANTS
6.1 The Pledgor covenants and agrees that it will defend the Lenders lien and security interest in and to the Pledged Stock against the claims and demands of all Persons.
6.2 The Pledgor covenants and agrees that without the prior written consent of the Lender, it will not sell, convey or otherwise dispose of any of the Pledged Stock, or create, incur or permit to exist any pledge, lien, mortgage, hypothecation, security interest, charge, option or any other encumbrance or restriction with respect to any of the Pledged Stock, or any interest therein, or any proceeds thereof, except for the liens and security interests created by this Pledge Agreement.
6.3 The Pledgor covenants and agrees that it will not consent to the issuance of: (i) any additional shares of capital stock of the Bank unless such shares are pledged and the Certificates therefor delivered to the Lender, simultaneously with the issuance thereof, together with appropriate undated assignments separate from the Certificates duly executed in blank; and (ii) any options by the issuer of the Pledged Stock obligating such issuer to issue additional shares of capital stock of any class of such issuer.
6.4 At any time from time to time, upon the written request of the Lender, and at the sole expense of the Pledgor, the Pledgor covenants and agrees that it will promptly and duly execute and deliver such further instruments and documents and take such further actions as the Lender may reasonably request for the purposes of obtaining or preserving the full benefits of this Pledge Agreement and of the rights and powers herein granted, including, without limitation, the filing of UCC-1 financing statements (which the Pledgor hereby authorizes the Lender to file without execution by the Pledgor), in form and substance satisfactory to the Lender and the Lenders counsel, with the Secretary of State of Texas in favor of the Lender with respect to the Pledged Stock and the proceeds therefrom. If any amount payable under or in connection with any of the Pledged Stock shall be or become evidenced by any promissory note, other instrument or chattel paper, such note, instrument or chattel paper shall be immediately delivered to the Lender, duly endorsed in a manner reasonably satisfactory to the Lender, to be held as Pledged Stock pursuant to this Pledge Agreement.
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6.5 The Pledgor covenants and agrees to pay, and to save the Lender harmless from any and all liabilities with respect to or resulting from any delay in paying, any and all stamp, excise, sales or other documentary or similar taxes which may be payable or determined to be payable with respect to any of the Pledged Stock or in connection with any of the transactions contemplated by this Pledge Agreement.
ARTICLE VII
RIGHTS AND REMEDIES UPON DEFAULT
7.1 If any Default under the Loan Agreement or a default or breach in any respect by the Pledgor of any representation, warranty, covenant or agreement of the Pledgor under this Pledge Agreement (after the expiration of any applicable cure period or grace period hereunder or thereunder, which breach shall be deemed a Default under the Loan Agreement and a Default hereunder) shall occur, the Lender may do any one or more of the following: (a) declare the Obligations Secured Hereby to be forthwith due and payable, whereupon such Obligations Secured Hereby shall become immediately due and payable without presentment, demand, protest or other notice of any kind; and/or (b) proceed to protect and enforce its rights under this Pledge Agreement, the Notes, the Loan Agreement, or any of the other Loan Documents through other appropriate proceedings, and the Lender shall have, without limitation, all of the rights and remedies provided by applicable law, including, without limitation, the rights and remedies of a secured party under the Texas Uniform Commercial Code (the UCC) and, in addition thereto, the Lender shall be entitled, at the Lenders option, to exercise all voting and corporate rights with respect to the Pledged Stock as it may determine, without liability therefor, but the Lender shall not have any duty to exercise any voting and corporate rights in respect of the Pledged Stock and shall not be responsible or liable to the Pledgor or any other Person for any failure to do so or delay in so doing.
7.2 Without limiting the generality of the foregoing, if any Default under the Loan Agreement shall occur, and Lender has accelerated the payment of any indebtedness under the Loan Agreement, the Lender shall have the right to sell the Pledged Stock, or any part thereof, at public or private sale or at any brokers board or on any securities exchange for cash, upon credit or for future delivery, and at such price or prices as the Lender may deem best, and the Lender may be the purchaser of any or all of the Pledged Stock so sold and thereafter the Lender or any other purchaser shall hold the same free from any right or claim of whatsoever kind. The Lender is authorized, at any such sale, if it deems it advisable so to do, to restrict the number of prospective bidders or purchasers to Persons who will represent and agree that they are purchasing for their own account, for investment, and not with a view to the distribution or resale of the Pledged Stock and may otherwise require that such sale be conducted subject to restrictions as to such other matters as the Lender may deem necessary in order that such sale may be effected in such manner as to comply with all applicable state and federal securities laws. Upon any such sale, the Lender shall have the right to deliver, assign and transfer to the purchaser thereof the Pledged Stock so sold.
7.3 Each purchaser at any such sale shall hold the property sold, absolutely free from any claim or right of whatsoever kind, including any equity or right of redemption of the Pledgor, who hereby specifically waives all rights of redemption, stay or appraisal which it has or may have under any rule of law or statute now existing or hereafter adopted. The Lender shall
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give the Pledgor not less than ten days written notice of its intention to make any such public or private sale or at any brokers board or on any securities exchange (with such notice to state the time and place of such sale), and the Pledgor agrees that such notice shall be deemed reasonable.
7.4 Any such public sale shall be held at such time or times within the ordinary business hours and at such place or places as the Lender may fix in the notice of such sale. At any sale, the Pledged Stock may be sold in one lot as an entirety or in parts, as the Lender may determine. The Lender shall not be obligated to make any sale pursuant to any such notice. The Lender may, without notice or publication, adjourn any sale, and such sale may be made at any time or place to which the same may be so adjourned. In case of any sale of all or any part of the Pledged Stock on credit or for future delivery, the Pledged Stock so sold may be retained by the Lender until the selling price is paid by the purchaser thereof, but the Lender shall not incur any liability in case of the failure of such purchaser to take up and pay for the Pledged Stock so sold and, in case of any such failure, such Pledged Stock may again be sold upon like notice.
7.5 The Lender, instead of exercising the power of sale herein conferred upon it, may proceed by a suit or suits at law or in equity to foreclose this Pledge Agreement and sell the Pledged Stock, or any portion thereof, under a judgment or decree of a court or courts of competent jurisdiction.
7.6 On any sale of the Pledged Stock, the Lender is hereby authorized to comply with any limitation or restriction in connection with such sale that it may be advised by counsel is necessary in order to avoid any violation of applicable law or in order to obtain any required approval of the purchaser or purchasers by any third party or any governmental regulatory authority or officer or court, including, without limitation, all limitations and restrictions imposed by federal and state banking laws and regulations. Compliance with the foregoing sentence shall result in such sale or disposition being considered or deemed to have been made in a commercially reasonable manner.
7.7 In furtherance of the exercise by the Lender of the rights and remedies granted to it hereunder, the Pledgor agrees that, upon request of the Lender and at the expense of the Pledgor, it will use its Best Efforts to obtain all third party and governmental approvals necessary for or incidental to the exercise of remedies by the Lender with respect to the Pledged Stock or any part thereof, including, without limitation, approvals from the FRB and the FDIC. .
ARTICLE VIII
PRIVATE SALES
8.1 The Pledgor hereby acknowledges that, notwithstanding that a higher price might be obtained for the Pledged Stock at a public sale than at a private sale or sales, the making of a public sale of the Pledged Stock may be subject to registration requirements and other legal restrictions compliance with which could require such actions on the part of the Pledgor, could entail such expenses and could subject the Lender and any underwriter through whom the Pledged Stock may be sold and any controlling Person of any thereof to such liabilities as would make the making of a public sale of the Pledged Stock impractical. Accordingly, the Pledgor hereby agrees that private sales made by the Lender in accordance with the provisions of Article VII hereof may be at prices and on other terms less favorable to the seller than if the Pledged
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Stock were sold at public sale, that the Lender shall not have any obligation to take any steps in order to permit the Pledged Stock to be sold at a public sale complying with the requirements of federal and state securities and similar laws, and that such sale shall not be deemed to be made in a commercially unreasonable manner solely because of its nature as a private sale.
8.2 The Pledgor further agrees to use its Best Efforts to do or cause to be done all such other acts as may be necessary to make any sale or sales of all or any portion of the Pledged Stock pursuant to Article VII and this Article VIII valid and binding and in compliance with any and all other applicable requirements of law. The Pledgor further agrees that a breach of any of the covenants contained in Article VII and this Article VIII will cause irreparable injury to the Lender, that the Lender has no adequate remedy at law in respect of such breach and, as a consequence, that each and every covenant contained in Article VII and this Article VIII shall be specifically enforceable against the Pledgor, and the Pledgor hereby waives and agrees, to the extent permitted by law, not to assert any defenses to the granting of equitable relief (such as, without limitation, any defense that the Lender has an adequate remedy at law or that the Lender will not be irreparably injured) in any action for specific performance of such covenants.
ARTICLE IX
LIMITATION ON DUTIES REGARDING PLEDGED STOCK
The Lenders sole duty with respect to the custody, safekeeping and physical preservation of the Pledged Stock in its possession, under Section 9-207 of the UCC or otherwise, shall be to deal with it in the same manner as the Lender deals with similar securities and property for its own account. Neither the Lender nor any of its directors, officers, employees or agents shall be liable for any good faith failure to demand, collect or realize upon any of the Pledged Stock or for any delay in doing so or shall be under any obligation to see or otherwise dispose of any Pledged Stock or for any good faith delay in doing so or shall be under any obligation to see or otherwise dispose of any Pledged Stock upon the request of the Pledgor or otherwise.
ARTICLE X
MISCELLANEOUS PROVISIONS
10.1 Powers Coupled With An Interest. All authorizations and agencies herein contained with respect to the Pledged Stock are irrevocable and powers coupled with an interest.
10.2 Indemnification. The Pledgor agrees to indemnify and hold harmless the Lender (to the full extent permitted by law) from and against any and all claims, demands, losses, judgments, liabilities for penalties and excise taxes and other damages of whatever nature, and to reimburse the Lender for all costs and expenses, including reasonable legal fees and disbursements, growing out of or resulting from the Pledged Stock, this Pledge Agreement, the Loan Agreement or the other Loan Documents or the administration and enforcement of this Pledge Agreement, the Loan Agreement or the other Loan Documents or exercise of any right or remedy granted to the Lender hereunder except with respect to such claims, demands, losses, judgments, liabilities for penalties and excise taxes and other damages of whatever nature arising solely from the gross negligence or willful misconduct of the Lender, but including without limitation, any documentary or similar tax liability incurred by the Lender or any of its affiliates as a result of the exercise by the Lender of any of its rights hereunder. In no event shall the Lender be liable to the Pledgor for any action taken by the Lender that is permitted under this Pledge Agreement other than to account for proceeds of the Pledged Stock actually received by the Lender.
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10.3 Distribution of Pledged Stock. Upon enforcement of this Pledge Agreement following the occurrence of an Event of Default under this Pledge Agreement, the Loan Agreement, or the Notes, the proceeds of the Pledged Stock shall be applied to the Obligations Secured Hereby in such order and manner as the Lender may determine. In the event such monies shall be insufficient to pay all of the Obligations Secured Hereby, the Pledgor shall be liable to the Lender for any deficiency therein.
10.4 No Waiver; Cumulative Remedies. The Lender shall not by any act, delay, omission or otherwise be deemed to have waived any of its rights or remedies hereunder and no waiver shall be valid unless in writing, signed by the Lender, and then such waiver shall be valid to the extent therein set forth. A waiver by the Lender of any right or remedy hereunder on any one occasion shall not be construed as a bar to any right or remedy which the Lender would otherwise have on any future occasion. No failure to exercise or any delay in exercising on the part of the Lender any right, power or privilege hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The fights and remedies herein provided are cumulative and not exclusive of any rights or remedies provided by law.
10.5 Severability of Provisions. The provisions of this Pledge Agreement are severable, and if any clause or provision hereof shall be held invalid or unenforceable in whole or in part, then such invalidity or unenforceability shall attach only to such clause or provision or part thereof and shall not in any manner affect any other clause or provision in this Pledge Agreement.
10.6 Amendments; Choice of Law; Binding Effect.
(a) None of the terms or provisions of this Pledge Agreement may be altered, modified or amended except by an instrument in writing, duly executed by each of the parties hereto.
(b) This Pledge Agreement shall be governed by and construed in accordance with the internal laws of the State of Texas. Nothing herein shall be deemed to limit any rights, powers or privileges which the Lender may have pursuant to any law of the United States of America or any rule, regulation or order of any department or agency thereof and nothing herein shall be deemed to make unlawful any transaction or conduct by the Lender which is lawful pursuant to, or which is permitted by, any of the foregoing.
(c) This Pledge Agreement is made for the sole benefit of the Pledgor and the Lender, and no other Person shall be deemed to have any privity of contract hereunder nor any right to rely hereon to any extent or for any purpose whatsoever, nor shall any other Person have any right of action of any kind hereon or be deemed to be a third party beneficiary hereunder.
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10.7 Notices . All notices, consents, requests, demands and other communications hereunder shall be in writing and shall be given in accordance with Section 6.3 of the Loan Agreement.
10.8 Headings . The descriptive headings hereunder used are for convenience only and shall not be deemed to limit or otherwise effect the construction of any provision hereof.
10.9 Counterparts . This Pledge Agreement may be executed in several counterparts each of which shall constitute an original, but all of which shall together constitute one and the same agreement.
10.10 Forum; Venue . To induce the Lender to accept this Pledge Agreement and the other Loan Documents, the Pledgor irrevocably agrees that all actions or proceedings in any way, manner, or respect, arising out of or from or related to this Pledge Agreement or the other Loan Documents shall be litigated only in courts having suits within Dallas, Texas. The Pledgor hereby consents and submits to the jurisdiction of any local, state, or federal court located within said city. The Pledgor hereby waives any right it may have to transfer or change the venue of any litigation brought against the Pledgor by the Lender.
10.11 Irrevocable Authorization and Instruction to Issuers . The Pledgor hereby authorizes and instructs each issuer of Pledged Stock to comply with any instruction received by it from the Lender in writing that (a) states that a Default has occurred and (b) is otherwise in accordance with the terms of this Pledge Agreement, without any other or further instructions from the Pledgor, and the Pledgor agrees that the issuer shall be fully protected in so complying.
[Remainder of Page Intentionally Left Blank]
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WAIVER OF RIGHT TO JURY TRIAL. THE PLEDGOR AND THE LENDER EACH HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT THAT IT MAY HAVE TO A TRIAL BY JURY IN ANY LITIGATION ARISING IN ANY WAY IN CONNECTION WITH THIS PLEDGE AGREEMENT, THE NOTES OR ANY OF THE OTHER LOAN DOCUMENTS, OR ANY OTHER STATEMENTS OR ACTIONS OF THE PLEDGOR OR THE LENDER. THE PLEDGOR AND THE LENDER EACH ACKNOWLEDGE THAT IT HAS BEEN REPRESENTED IN THE SIGNING OF THIS AGREEMENT AND IN THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL COUNSEL SELECTED OF ITS OWN FREE WILL, AND THAT IT HAS DISCUSSED THIS WAIVER WITH SUCH LEGAL COUNSEL. THE PLEDGOR AND THE LENDER EACH FURTHER ACKNOWLEDGE THAT (a) IT HAS READ AND UNDERSTANDS THE MEANING AND RAMIFICATIONS OF THIS WAIVER, (b) THIS WAIVER HAS BEEN REVIEWED BY THE PLEDGOR AND THE LENDER AND THEIR RESPECTIVE COUNSEL AND IS A MATERIAL INDUCEMENT FOR THE LENDER TO ENTER INTO THE AGREEMENT AND THE OTHER LOAN DOCUMENTS (c) THIS WAIVER SHALL BE EFFECTIVE AS TO EACH OF SUCH OTHER LOAN DOCUMENTS AS IF FULLY INCORPORATED THEREIN.
IN WITNESS WHEREOF, the parties have caused this Pledge Agreement to be duly executed and delivered as of the day and year first above written.
INDEPENDENT BANK GROUP, INC. | ||
By: |
/s/ David R. Brooks |
|
Name: | David R. Brooks | |
Title: | Chairman of the Board | |
TIB THE INDEPENDENT BANKERSBANK | ||
By: |
/s/ J. Rick Jamieson |
|
Name: | J. Rick Jamieson | |
Title: | Senior Vice President |
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SCHEDULE A
THE PLEDGED STOCK
ISSUER: Independent bank
Owner |
Class |
Certificate
Number |
Number of
Shares |
Percentage
of Class |
||||||||||||
Independent Bank Group, Inc. |
Common | [ | ] | [ | ] | 100 | % |
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ACKNOWLEDGMENT
The undersigned issuer of the Pledged Stock hereby acknowledges receipt of a copy of this Pledge Agreement and agrees to (a) note the restrictions herein on its books, records, ledgers and certificates maintained with respect to its capital stock, (b) not make or permit any dividends or distributions with respect to its capital stock except as permitted in this Pledge Agreement, and (c) not make or permit any sale, transfer or issuance of any of its capital stock or of any rights to acquire its capital stock except as permitted in this Pledge Agreement.
INDEPENDENT BANK | ||
By: |
/s/ David R. Brooks |
|
Name: | David R. Brooks | |
Title: | Chairman of the Board |
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Assignment Separate from Certificate
[Deliver one original per pledged stock certificate]
FOR VALUE RECEIVED, Independent Bank Group, Inc., does hereby sell, assign and transfer unto ( ) Shares of Common Stock of Independent Bank, standing in its name on the books of such corporation represented by Certificate No. , and does hereby irrevocably constitute and appoint attorney to transfer such stock on the books of the within named bank with full power and substitution in the premises.
Dated:
INDEPENDENT BANK GROUP, INC. | ||
By: |
/s/ David R. Brooks |
|
Name: David R. Brooks | ||
Title: Chairman of the Board |
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EXHIBIT 10.5
LETTER LOAN AGREEMENT
March 15, 2012
TIB-The Independent BankersBank
350 Phelps Drive
Irving, Texas 75038
Attention. | Tandy L. Hix |
Senior | Vice President |
Gentlemen:
The undersigned, INDEPENDENT BANK GROUP, INC. (the Borrower ), with its mailing address located at the address set forth on the signature page hereof, has requested that TIB-The Independent BankersBank (the Lender ) extend a loan (the Loan ) to Borrower to be evidenced by Borrowers Promissory Note dated March 15, 2012 in the principal sum of $7,000,000.00 , payable to the order of Lender as therein specified (the Note ). The Note and all renewals, extensions and rearrangements thereof, are hereinafter referred to as the Note . In consideration of Lender making the Loan, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Borrower agrees with Lender as follows:
1. Definitions . As used in this Letter Loan Agreement (the Agreement ), the following terms have the following meanings:
Advances means advances made under the Note in accordance with Section 5 below.
Bank means Independent BankMcKinney, a Texas state banking association.
Book Value means, at any time for any share of common stock of Bank, Equity Capital divided by the total number of shares of common stock of Bank outstanding at such time.
Business Day means any day on which commercial banks are not authorized or required to close in Irving, Dallas County, Texas.
Classified Assets means, at any particular time, all assets of Bank classified as Loss, Doubtful, or Substandard or in any equivalent category by Bank or any governmental or regulatory authority.
Collateral means 985,930 shares ( i.e. , 100%) of the Common Stock of Independent BankMcKinney, McKinney, Texas.
Debt means as to any Person at any time (without duplication): (i) all obligations of such Person for borrowed money, (ii) all obligations of such Person evidenced by bonds, notes, debentures, or other similar instruments, (iii) all obligations of such Person to pay the deferred purchase price of property or services, except trade accounts payable of such Person arising in the ordinary course of business which are not past due by more than ninety (90) days unless such trade accounts payable are being contested in good faith by appropriate proceedings, (iv) all obligations of such Person under any lease which, in conformity with GAAP, is required to be capitalized for balance sheet purposes, (v) all obligations of such Person under guaranties, endorsements (other than for collection or deposit in the ordinary course of business), assumptions or other contingent obligations, in respect of, or to purchase or otherwise acquire, any obligation or indebtedness of any other Person, or any other obligation, contingent or otherwise, of such Person directly or indirectly protecting the holder of any obligation or indebtedness of any other Person against loss (whether by partnership arrangements, agreements to keep-well, to purchase assets, goods, securities, or services, to take-or-pay or otherwise), (vi) all obligations secured by a Lien existing on property owned by such Person, whether or not the obligations secured thereby have been assumed by such Person or are non-recourse to the credit of such Person, (vii) all reimbursement obligations of such Person (whether contingent or otherwise) in respect of letters of credit, bankers acceptances, surety or other bonds and similar instruments, and (viii) all liabilities of such Person in respect of unfunded vcsted benefits under any employee benefit plan of Borrower or any Subsidiary, but except as described in item (viii) above, Debt does not include any indebtedness of Bank or any other Subsidiary of Borrower.
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Equity Capital means, at any particular time, the total equity capital of the Bank determined in accordance with the Instructions (the Call Report Instructions ) to the Reports of Condition and Income ( Call Reports ) as most recently promulgated by the Federal Financial Institutions Examination Council ( FFIEC ).
Event of Default has the meaning specified in Section 10 .
GAAP means generally accepted accounting principles, applied on a consistent basis, as set forth in Opinions of the Accounting Principles Board of the American Institute of Certified Public Accountants and/or in statements of the Financial Accounting Standards Board and/or their respective successors and which are applicable in the circumstances as of the date in question. Accounting principles are applied on a consistent basis when the accounting principles observed in a current period are comparable in all material respects to those accounting principles applied in a preceding period.
Lien means any lien, mortgage, security interest, tax lien, financing statement, pledge, charge, hypothecation, assignment, preference, priority, or other encumbrance of any kind or nature whatsoever (including, without limitation, any conditional sale or title retention agreement), whether arising by contract, operation of law, or otherwise.
Loan Documents means this Agreement and all promissory notes, pledge agreements, guaranties, and other instruments, documents, and agreements now or hereafter executed and delivered pursuant to or in connection with this Agreement and any future renewals, extensions, and amendments hereto or thereto.
Maximum Rate means the maximum rate of nonusurious interest permitted from day to day by applicable law.
Non-Performing Assets means Non-Performing Loans, and other real estate and other assets which are owned due to foreclosure or as a result of the exercise of legal remedies where such real estate or other assets were mortgaged or taken as security for loans.
Non-Performing Loans means loans on nonaccrual, loans deemed troubled debt restructurings under Statement of Financial Accounting Standards No. 15, and loans which have been past due for ninety (90) days or more.
Obligated Party means any Person who is or becomes party to any agreement that guarantees or secures payment and performance of the Obligations or any part thereof.
Obligations means all obligations, indebtedness, and liabilities of Borrower to Lender, now existing or hereafter arising, whether direct, indirect, related, unrelated, fixed, contingent, liquidated, unliquidated, including, without limitation, the obligations, indebtedness, and liabilities of Borrower under this Agreement, the Note, and the other Loan Documents, and all interest accruing thereon and all attorneys fees and other expenses incurred in the enforcement or collection thereof
Person means any individual, corporation, business trust, association, company, partnership, joint venture, or other entity.
Pledge Agreement means the Pledge Agreement of Borrower in favor of Lender of even date herewith, as the same may be amended, supplemented, or modified.
Pledged Stock has the meaning specified in Section 3(a) .
Primary Capital means the sum of Equity Capital plus one hundred percent (100%) of the Banks allowances for possible loan and lease losses.
Return on Assets means, for the applicable reporting period, the ratio, expressed as a percentage, of Banks net income after taxes to Banks Total Assets, determined at the end of the applicable reporting period being analyzed.
Subsidiary means any corporation or bank of which more than fifty percent (50%) of the issued and outstanding securities having ordinary voting power for the election of a majority of directors is owned or controlled, directly or indirectly, by Borrower, by Borrower and one or more other Subsidiaries, or by one or more other Subsidiaries.
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Tangible Equity Capital means Equity Capital less Goodwill and Other Intangible Assets of the Bank determined in accordance with the Instructions (the Call Report Instructions) to the Reports of Condition and Income (Call Reports) as most recently promulgated by the Federal Financial Institutions Examination Council.
Total Assets means, at any particular time, all amounts which, in conformity with GAAP, would be included as assets on a balance sheet of Bank less (1) allowances for loan and lease losses, and (ii) goodwill and other intangible assets.
2. Repayment of Loan . Borrower shall repay the Loan, plus accrued interest thereon, as provided in the Note. All payments of principal, interest and other amounts to be paid under this Agreement, the Note, and the other Loan Documents shall be made to Lender at its office at 350 Phelps Drive, Irving, Texas 75038, in lawful currency of the United States of America and in immediately available funds. Whenever any payment hereunder or under the Note shall be stated to be due on a day that is not a Business Day, such payment may be made on the next succeeding Business Day and interest shall continue to accrue during such extension. Borrower may prepay the Note in whole or part at any time without premium or penalty, but with accrued interest to the date of prepayment on the amount so prepaid, provided that partial prepayments shall be applied to the principal of the Loan in the inverse order of the required principal payments set forth in the Note and below. Lender shall have no obligation or commitment to renew the Loan. Lender will, however, consider renewing the Loan if (i) the financial condition of Borrower and Bank is satisfactory to Lender, in its sole discretion, (ii) no Event of Default, and no event that with the giving of notice or lapse of time or both would constitute an Event of Default, shall have occurred and be continuing, and (iii) Borrower shall have made quarterly payments of all principal and accrued interest on the Loan during the term of the Loan, in accordance with the Note.
3. Collateral . To secure full and complete payment and performance of the Obligations, Borrower shall execute and deliver or cause to be executed and delivered the documents described below covering the collateral described in this Section (which, together with any other property and collateral which may now or hereafter secure the Obligations or any part thereof, is sometimes herein called the Collateral ):
(a) Borrower shall grant to Lender a security interest in all of the common capital stock of the Bank, now owned or hereafter acquired by Borrower and all products and proceeds thereof, pursuant to the Pledge Agreement (the Pledged Stock ). Lender shall retain possession of the certificate or certificates representing the Pledged Stock, together with stock powers duly executed in blank by Borrower,
(b) Borrower shall execute and cause to be executed such further documents and instruments, including, without limitation, Uniform Commercial Code financing statements, as Lender, in its sole discretion, deems necessary or desirable to evidence and perfect its liens and security interests in the Collateral.
4. Distributions . If Borrower shall be entitled to receive or shall receive any stock certificate (including, without limitation, any certificate representing a stock dividend or distribution in connection with any reclassification, increase, or reduction of capital, or issued in connection with any reorganization), option or rights, whether as an addition to, in substitution of, or in exchange for any shares of any Pledged Stock, Borrower agrees to accept the same as Lenders agent and to hold the same in trust on behalf of and for the benefit of Lender and to deliver the same forthwith to Lender in the exact form received, with the endorsement of Borrower where necessary and/or appropriate undated stock powers duly executed in blank, to be held by Lender, subject to the terms of the Pledge Agreement, as additional Collateral.
5. Omitted.
6. Conditions Precedent . The obligation of Lender to fund the Loan is subject to the condition precedent that Lender shall have received on or before the day of the making of the Loan all of the following, each dated (unless otherwise indicated) the date hereof, in form and substance satisfactory to Lender (provided, however, that such requirements are waived if previously submitted to Lender and such are still true, correct, and complete versions):
(a) Articles of Incorporation of Borrower . The articles of incorporation of the Borrower certified by the Secretary of State of Texas, and dated within ten (10) days prior to the Closing Date, together with any authorizations to do business in the state where Bank is located, if required by applicable law.
(b) Bylaws . The Bylaws of the Borrower certified by an officer of Borrower.
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(c) Certificate of Secretary and Incumbency . Resolutions of the Board of Directors of Borrower, certified by an officer, which authorizes the execution, delivery and performance of this Agreement, the Note, and the other Loan Documents, together with, if requested, a certificate of incumbency certifying the names of the officers of Borrower authorized to sign this Agreement, the Note, and the other Loan Documents, together with specimen signatures of such officers.
(d) Existence/Good Standing/Authority . Certificate of Borrower as to the existence and good standing of Borrower, and certifying as to the authority documents of Borrower.
(e) Articles of Association and Bylaws . The articles of association and bylaws of Bank certified by the Secretary of Bank.
(f) Note . The Note executed by Borrower.
(g) Pledge Agreement . The Pledge Agreement executed by Borrower.
(h) Pledged Stock . The certificates representing the Pledged Stock, accompanied by stock powers duly executed in blank by Borrower, which Lender acknowledges it already holds.
(i) Additional Information . Such additional documents, instruments, and information as Lender or its legal counsel, Basinger, Leggett, Clemons, Bowling, Shore & Crouch, PLLC, may request.
7. Representations and Warranties. To induce Lender to enter into this Agreement, Borrower represents and warrants to Lender that:
(a) Borrower (i) is a corporation duly organized validly existing, and in good standing under the laws of Texas: (ii) has all requisite corporate power to own assets and carry on its business as now being or as proposed to be conducted: and (iii) is qualified to do business in all jurisdictions in which the nature of its business makes such qualification necessary and where failure to so qualify would have a material adverse effect on its business, financial condition, or operations. Borrower has the corporate power and authority to execute, deliver, and perform its obligations under this Agreement and the other Loan Documents to which it is or may become a party. The Bank is a Texas Banking Association duly organized, validly existing, and in good standing under the applicable laws of Texas and the United States.
(b) The borrowing hereunder and the execution, delivery and performance by Borrower of this Agreement. the Note and the other Loan Documents have been duly authorized by all necessary action of Borrower and are not in contravention of any law, rule or regulation or of the terms of any agreement or instrument to which such Person is a party or by which it may be bound or of that Persons articles of incorporation or bylaws.
(c) This Agreement, the Note and the other Loan Documents to which Borrower is a party, when delivered, shall constitute the legal, valid, and binding obligation of Borrower, enforceable against Borrower, as the case may be, in accordance with their respective terms, except as limited by bankruptcy, insolvency, or other laws of general application relating to the enforcement of creditors rights.
(d) Each financial statement of Borrower and Bank herewith or heretofore delivered to Lender was prepared in conformity with GAAP and truly disclosed Persons financial condition (including all of Persons contingent liabilities) as of the date thereof and the results of its operations for the period covered thereby, and there has been no material adverse change in Borrowers or Banks financial condition and operations subsequent to the date of the most recent financial statement of Borrower and Bank delivered to Lender.
(e) No litigation or governmental proceeding is pending, or, to the knowledge of Borrower, threatened against or affecting Borrower or Bank, which may result in any material adverse change in Borrowers or Banks business, properties or operations.
(f) Other than to Lender, Borrower has no Debt except as described on Schedule 1 hereto. Other than those granted to Lender and as set forth on Schedule 1 hereto none of Borrowers or Banks assets are subject to an Lien except for Liens on the Banks assets granted in the ordinary course of its business, consistent with its past practices. Borrower owns, and with respect to Collateral acquired after the date hereof, Borrower will own, legally and beneficially, the Collateral free of any lien or claim or any right or option on the part of any third party to purchase or otherwise acquire the Collateral or any part thereof, except for the security interest granted to Lender pursuant to the Pledge Agreement. The Collateral is not subject to any restriction on transfer or assignment except for compliance with applicable federal and state securities laws and regulations promulgated thereunder. Borrower has the unrestricted right to pledge the Collateral as contemplated by the Loan Documents. All of the Collateral has been duly and validly issued and is fully paid and nonassessable. The authorized capital stock of the Bank is 985,930 shares of common stock, of which 985,930 shares are issued and outstanding. All of the
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outstanding capital stock of the Bank has been validly issued, is fully paid, and is non-assessable. The Pledged Stock constitutes one hundred percent (100%) of the issued and outstanding shares of common capital stock of the Bank. There are no existing subscriptions, options, warrants, calls, or rights (including preemptive rights) to acquire, and no existing Debt, securities, or other instruments convertible into or exchangeable for, capital stock of the Bank.
(g) No certificate or statement herewith or heretofore delivered by Borrower to Lender in connection herewith, or in connection with any transaction contemplated hereby, contains any untrue statement of a material fact or fails to state any material fact necessary to keep the statements contained therein from being misleading.
(h) Borrower has no Subsidiaries except as disclosed on Schedule 2 attached hereto.
(i) No authorization, approval, or consent of, and no filing or registration with, any court, governmental authority, or third party is or will be necessary for the execution, delivery, or performance by Borrower of this Agreement and the other Loan Documents to which Borrower is or may become a party or the validity or enforceability thereof.
(j) Neither Borrower nor any Subsidiary is in violation in any material respect of any law, rule, regulation, order, or decree of any court, governmental authority, or arbitrator or any agreement to which such Person is a party.
8. Affirmative Covenants . Borrower covenants and agrees that, as long as the Obligations or any part thereof are outstanding or Lender has any commitment hereunder, Borrower will observe and perform the following positive covenants, unless Lender shall otherwise consent in writing:
(a) Borrower will keep and cause Bank to keep adequate books and records, in accordance with GAAP, of all of its transactions so that at any time, and from time to time, its true and complete financial condition may be readily determined, and, at Lenders request, make such books and records available for Lenders inspection and permit Lender to make and take away copies thereof
(b) Borrower will furnish to Lender as soon as available, and in any event within one hundred twenty (120) days after the end of each fiscal year of Borrower, a copy of the annual audit report of Borrower and Bank for such fiscal year containing, on a consolidated and unconsolidated basis, balance sheets, statements of income, statements of retained earnings, statements of changes in financial position, and cash flows as at the end of such fiscal year and for the 12-month period then ended, in each case setting forth in comparative form the figures for the preceding fiscal year, all in reasonable detail and audited and certified by independent certified public accountants of recognized standing acceptable to Lender, to the effect that such report has been prepared in accordance with GAAP.
(c) When the reports described in subsection (f) below are delivered, Borrower will furnish to Lender a certificate of the Chief Executive Officer or Chief Financial Officer of Borrower stating that to the best of such officers knowledge, no Event of Default has occurred and is continuing, or if an Event of Default has occurred and is continuing, a statement as to the nature thereof and the action which is proposed to be taken with respect thereto, and showing in reasonable detail the calculations demonstrating compliance with Sections 8(s), 8(aa), 9(a), 9(b), 9(i), and 9(p) hereof.
(d) Promptly, and in any event within forty-five (45) days after the close of each quarterly period of each fiscal year of Borrower, or within such further time as Lender may permit, Borrower will furnish to Lender a copy of Borrowers most recent Federal Reserve Forms Y-9.
(e) Promptly, and in any event, prior to January 31 of each and every year during the term of the Loan (including renewals, modifications, and/or extensions thereof), Borrower shall and shall cause Bank to create and deliver to Lender an annual budget for the upcoming year, such budget to include projected cash flow information and a pro forma balance sheet.
(f) As soon as available, and in any event within sixty (60) days after the end of each fiscal quarter, Borrower will deliver to Lender copies of Banks Call Reports as filed with Federal Deposit Insurance Corporation and/or the Texas State Banking Department.
(g) As soon as available, and in any event within thirty (30) days after the end of each calendar quarter, Borrower will furnish to Lender a report identifying the Classified Assets of Bank.
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(h) As soon as available, and in any event within sixty (60) days after the end of each calendar quarter, Borrower will furnish a copy to Lender of Banks Uniform Bank Performance Report prepared by and/or filed with the FFIEC.
(i) As soon as available, Borrower will furnish to Lender one copy of each financial statement, report, notice, or proxy statement sent by Borrower or Bank to its stockholders generally and one copy of each regular, periodic or special report, registration statement, or prospectus filed by Borrower with any securities exchange or the Securities and Exchange Commission or any successor entity, and any material order issued by any court, governmental authority, or arbitrator in any proceeding to which Borrower or Bank is a party.
(j) Omitted.
(k) Borrower will promptly inform Lender of any litigation against Borrower or Bank or affecting any of Borrowers or Banks property, if such litigation or potential litigation might, in the event of an unfavorable outcome have a material adverse effect on Borrowers or Banks financial condition or might cause an Event of Default.
(l) Borrower will promptly furnish to Lender, at Lenders request and within Lenders sole discretion, such additional financial or other information concerning the assets, liabilities, operations and transactions of Borrower and/or Bank as Lender may from time to time request.
(m) Borrower will promptly pay when due any and all taxes, assessments and governmental charges upon Borrower or Bank or against any of Borrowers or Banks property unless the same is being contested in good faith by appropriate proceedings and reserves deemed adequate by Lender have been established therefor.
(n) Borrower will promptly pay all lawful claims, whether for labor, materials or otherwise, which could, if unpaid, become a lien or charge on any property or assets of Borrower or Bank, unless and to the extent only that the same are being contested in good faith by appropriate proceedings and reserves deemed adequate by Lender have been established therefor.
(o) Borrower will maintain its and Banks existence and promptly comply and cause Bank to promptly comply with all laws, statutes, ordinances, governmental regulations, agreements, contracts, and instruments applicable to or binding upon it or to any of its properly, business, operations and transactions.
(p) Borrower will maintain, and cause Bank to maintain, with financially sound and reputable insurance companies or associations, insurance of the kinds, covering the risks and in the relative proportionate amounts, usually carried by companies engaged in businesses similar to that of Borrower and Bank (such insurance to be in any event in such amounts and covering such risks as shall be satisfactory to Lender), and, at Lenders request, deliver to Lender evidence of the maintenance of such insurance.
(q) As soon as available, and in any event within thirty (30) days after each meeting of the Board of Directors of Bank, Borrower will cause Bank to furnish to Lender the directors report from such meeting including the minutes thereof.
(r) Borrower will preserve and maintain all licenses, privileges, franchises, certificates and the like necessary for the operation of its business.
(s) Borrower will cause Bank at all times to maintain Tangible Equity Capital of at least $90,000,000.00.
(t) Borrower will cause Bank to maintain at all times a liquidity position determined by the ratio of total deposits to total loans which is in accordance with the guidelines recommended by applicable federal bank regulatory authorities and is deemed satisfactory at each regulatory examination of the Bank.
(u) Borrower will cause Bank to maintain federal deposit insurance and to be a member of the Federal Deposit Insurance Corporation.
(v) Borrower will notify Lender, within five (5) days of the occurrence thereof, of the occurrence of an Event of Default or event which with the giving of notice or lapse of time or both would constitute an Event of Default.
(w) If an Event of Default has occurred and is continuing, Borrower will permit and cause Bank to permit a representative of Lender to attend all meetings of the board of director of Borrower and Bank, whether regular meetings or specially called meetings, but may exclude such Persons from parts of such meeting at which information subject to Borrowers or Banks attorney-client privilege is discussed.
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(x) Borrower will promptly, and in no event later than ten (10) days following Borrowers receipt of notice thereof, furnish to Lender written notice of (i) the issuance of any notice of charges, cease-and-desist order (temporary or otherwise) or other order or notice to take affirmative action by any governmental or regulatory authority against Borrower or Bank or any director, officer, employee, agent, or other person participating in the conduct of the affairs of Borrower or Bank, (ii) the service of any notice of intention to remove from office or notice of intention to suspend from office by any governmental or regulatory authority upon any director or officer of Borrower or Bank, (iii) the issuance of a notice of termination of the status of Bank as an insured bank under the Federal Deposit Insurance Corporation Act, as amended, or (iv) the entry into any agreement or memorandum of understanding between any governmental or regulatory authority and Borrower or Bank or any director, officer, employee, agent, or other person participating in the conduct of the affairs of Borrower or Bank.
(y) Omitted.
(z) If Lender in its sole discretion believes that it is advisable that the loan portfolio of Bank should be reviewed during any year during the term of the Loan, Borrower will provide or cause to be provided to Lender a third party loan review of Banks loan portfolio conducted by an independent third party acceptable to Lender, such review to begin within ninety (90) days after Lenders written request therefor. Borrower shall provide such reviews annually if Bank is the subject of any regulatory action or agreement described in Section 8(x) hereof.
(aa) Borrower shall cause Bank to maintain, per calendar quarter on an annualized basis, a minimum ratio of net income after taxes divided by Average Total Assets of not less than one percent (1.0%).
(bb) Borrower shall maintain (on a consolidated basis) and shall cause the Bank to maintain such capital as necessary to cause the Banks Total Risk-Based Capital to be 10% or greater.
9. Negative Covenants . Borrower covenants and agrees that, as long as the Obligations or any part thereof are outstanding or Lender has any commitment hereunder, Borrower will perform and observe the following negative covenants, unless Lender shall otherwise consent in writing:
(a) Except for Debt to Lender and for Debt disclosed on Schedule 1 , Borrower will not incur, create or assume any material Debt;
(b) Borrower will not permit any change in Control of Borrower to occur (for purposes hereof, Control shall mean the power to vote at least twenty-five percent (25%) of any voting stock of Borrower, respectively);
(c) Except for any security interests granted to Lender in connection with the Prior Note (as defined in the Pledge Agreement), Borrower will not incur, create, assume, or permit to exist any Lien upon any of its property, assets or revenues, whether now owned or hereafter acquired, except Liens in favor of Lender (provided, however, that the foregoing shall not apply to Liens for taxes which are not delinquent or which are being contested in good faith, mechanics and materialmens liens with respect to obligations which are not overdue or which are being contested in good faith, and Liens resulting from deposits to secure the payments of workers compensation or other social security or to secure the performance of bids or contracts in the ordinary course of business);
(d) Borrower will not reorganize, merge, consolidate with, or permit Bank to reorganize, merge, or consolidate with, or acquire all or substantially all of the assets of, any other company, firm or association, or make any other substantial change in its capitalization or character of its business;
(e) Borrower will not declare or pay any dividends to its shareholders when an Event of Default (or an event which, with the giving of notice or the passage of time or both, would constitute a default) exists;
(f) Borrower will not permit Bank to sell, lease, or otherwise dispose of any of its assets used or useful in its business, except in the regular course of business for reasonably equivalent consideration;
(g) Omitted;
(h) Borrower will not permit the Classified Assets of Bank to at any time exceed fifty percent (50%) of the Primary Capital of Bank;
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(i) Borrower will not permit the ratio of Banks Tangible Equity Capital to its Total Assets to at any time be less than the greater of six and one-half percent (6.5%), tracked on a quarterly basis;
(j) Borrower will not permit Bank to enter into any speculative activities or securities hedging;
(k) Omitted;
(l) Borrower will not prepay any Debt except the Obligations;
(m) Borrower will not make, and will not permit Bank to make, any change in accounting treatment or reporting practices, except as required by GAAP or regulatory requirements; and
(n) Omitted.
(o) Omitted.
10. Event of Default . Each of the following shall be deemed an Event of Default :
(a) Borrower shall fail to pay within five (5) days of when due the Obligations or any part thereof.
(b) Any regulatory authority issues a cease and desist order against the Bank.
(c) Any representation or warranty made or deemed made by the Borrower, Bank, or any Obligated Party in any Loan Document or in any certificate, report, notice, or financial statement furnished at any time in connection with this Agreement shall be false, misleading, or erroneous in any material respect when made or deemed to have been made.
(d) Except for (i) failures otherwise enumerated in this Section 10 or (ii) provisions herein which already provide for a notice or cure period, Borrower, Bank, or any Obligated Party shall fail to perform, observe, or comply with any covenant, agreement or term contained in this Agreement or any other Loan Document, and such failure continues for thirty (30) days after written notice by Lender to Borrower.
(e) Borrower, Bank, or any Obligated Party shall commence a voluntary proceeding seeking liquidation, reorganization, or other relief with respect to itself or its debts under any bankruptcy, insolvency, receivership, conservatorship, or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian, conservator, or other similar official of it or a substantial part of its property or shall consent to any such relief or to the appointment of or taking possession by any such official in such a proceeding commenced against it or shall make a general assignment for the benefit of creditors or shall generally fail to pay its debts as they become due or shall take any corporate action to authorize any of the foregoing.
(f) An involuntary proceeding shall be commenced against the Borrower, Bank, or any Obligated Party seeking liquidation, reorganization, or other relief with respect to it or its debts under any bankruptcy, insolvency, receivership, conservatorship, or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian, conservator, or other similar official for it or a substantial part of its property, and such involuntary proceeding shall remain undismissed and unstayed for a period of thirty (30) days.
(g) Borrower, Bank, or any Obligated Party shall fail to discharge within a period of thirty (30) days after the commencement thereof any attachment, sequestration, or similar proceeding involving an amount in excess of Fifty Thousand Dollars ($50,000.00) against any of its assets or properties, unless such proceeding is being contested diligently and in good faith and adequate reserves have been established.
(h) Borrower, Bank, or any Obligated Party shall fail to satisfy and discharge promptly any judgment against it for the payment of money in an amount in excess of Fifty Thousand Dollars ($50,000.00) unless such judgment is being contested diligently and in good faith and adequate reserves have been established.
(i) Borrower, Bank, or any Obligated Party shall fail to pay when due any principal of or interest on any Debt (other than the Obligations) or other debts or obligations of such parties exceeding Twenty-Five Thousand Dollars ($25,000.00), or the maturity of any such Debt shall have been accelerated, or any such Debt shall have been required to be prepaid prior to the stated maturity thereof, or any event shall have occurred and be continuing that, with the giving of notice or lapse of time or both, would permit any holder or holders of such Debt or any Person acting on behalf of such holder or holders to accelerate the maturity thereof or require any such prepayment.
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(j) This Agreement or any other Loan Document shall cease to be in full force and effect or shall be declared null and void or the validity or enforceability thereof shall be contested or challenged by Borrower or any of Borrowers shareholders, or Borrower shall deny that it has any further liability or obligation under any of the Loan Documents.
(k) Borrower shall fail, at any time, to own directly or indirectly and have pledged to Leader at least 100% of the issued and outstanding shares of common capital stock of Bank, or such security interest in favor of Lender shall at any time fail to be a first priority perfected lien and security interest.
11. Rights of Lender . Upon the occurrence of an Event of Default, Lender may without notice terminate its commitment to lend hereunder and declare the Obligations or any part thereof to be immediately due and payable, and the same shall thereupon become immediately due and payable, without demand, presentment, notice of dishonor, notice of acceleration, notice of intent to accelerate, notice of intent to demand, or protest, all of which are hereby expressly waived; provided, however, that upon the occurrence of an Event of Default under Section 10(e) or Section 10(f) , the commitment of Lender to lend hereunder shall automatically terminate, and the Obligations shall become immediately due and payable without notice, demand, presentment, notice of dishonor, notice of acceleration, notice of intent to accelerate, notice of intent to demand, or protest, all of which are hereby expressly waived, Upon the occurrence of any Event of Default, Leader may exercise all rights and remedies available to it in law or in equity. under the Loan Documents or otherwise.
12. Maximum Interest Rate . No provision of this Agreement or of the Note shall require the payment or the collection of interest in excess of the maximum permitted by applicable law. If any excess of interest in such respect is hereby provided for, or shall be adjudicated to be so provided, in the Note or otherwise in connection with this loan transaction, the provisions of this Section shall govern and prevail and neither Borrower nor the sureties, successors, or assigns of Borrower shall be obligated to pay the excess amount of such interest or any other excess sum paid for use, forbearance, or detention of sums loaned pursuant hereto. In the event Lender ever receives, collects, or applies as interest any such sum, such amount which would be in excess of the maximum amount permitted by applicable law shall he applied as a payment and reduction of the principal of the indebtedness evidenced by the Note; and, if the principal of the Note has been paid in full, any remaining excess shall forthwith be paid to Borrower. In determining whether or not the interest paid or payable exceeds tile Maximum Rate, Borrower and Lender shall to the extent permitted by applicable law, (i) characterize any non-principal payment as an expense, fee, or premium rather than as interest, (ii) exclude voluntary prepayments and the effects thereof, and (iii) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest throughout the entire contemplated term of the indebtedness evidenced by the Note so that interest for the entire term does not exceed the Maximum Rate.
13. Applicable Law . This Agreement and all other documents and instruments executed pursuant hereto or in connection herewith and the transactions contemplated hereby are made and performable in Dallas County, Texas and shall be governed by and construed in accordance with the laws of the State of Texas and the applicable laws of the United States of America.
14. Severability . The unenforceability of any provision of this Agreement shall not affect the enforceability or validity of any other provision hereof.
15. Counterparts . This Agreement may be executed in any number of counterparts and by different parties hereto on separate counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute but one and the same instrument.
16. Miscellaneous . No modification, consent, amendment or waiver of any provision of this Agreement, nor consent to any departure by Borrower therefrom, shall be effective unless the same shall be in writing and signed by an officer of Lender, and then shall be effective only in the specific instance and for the purpose for which given. No notice to or demand on Borrower n any case shall, of itself, entitle Borrower to any other or further notice or demand in similar or other circumstances. No delay or omission by Lender in exercising any power or right hereunder shall impair any such right or power or be construed as a waiver thereof or any acquiescence therein, nor shall any single or partial exercise of any such power preclude other or further exercise thereof, or the exercise of any other right or power hereunder. All rights and remedies of Lender hereunder are cumulative of each other and of every other right or remedy which Lender may otherwise have at law or in equity or
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under any other contract or document, and the exercise of one or more rights or remedies shall not prejudice or impair the concurrent or subsequent exercise of other rights or remedies. All accounting terms not specifically defined herein shall be construed in accordance with GAAP on the basis used by Borrower in prior years. This Agreement is binding upon Borrower, its successors and assigns, and inures to the benefit of Lender, its successors and assigns; provided, however, that Borrower may not assign its rights or obligations hereunder without Lenders prior written consent.
17. Expenses of Lender . Borrower agrees to pay on demand all reasonable costs and expenses incurred by Lender in connection with the preparation, negotiation, and execution of this Agreement and the other Loan Documents. Borrower agrees to pay on demand all reasonable costs and expenses incurred by Lender in connection with any and all amendments, modifications, and supplements to this Agreement and the other Loan Documents, including without limitation the reasonable costs and fees of Lenders legal counsel, and all costs and expenses incurred by Lender in connection with the enforcement or preservation of any rights under this Agreement or any other Loan Document, including without limitation the reasonable costs and fees of Lenders legal counsel.
18. INDEMNIFICATION . BORROWER HEREBY INDEMNIFIES LENDER AND EACH AFFILIATE THEREOF AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, ATTORNEYS, AND AGENTS FROM, AND HOLDS EACH OF THEM HARMLESS AGAINST, ANY AND ALL LOSSES, LIABILITIES, CLAIMS, DAMAGES, PENALTIES, JUDGMENTS, COSTS, AND EXPENSES (INCLUDING ATTORNEYS FEES) TO WHICH ANY OF THEM MAY BECOME SUBJECT WHICH DIRECTLY OR INDIRECTLY ARISE FROM OR RELATE TO (i) THE NEGOTIATION, EXECUTION, DELIVERY, PERFORMANCE, ADMINISTRATION, OR ENFORCEMENT OF ANY OF THE LOAN DOCUMENTS, (ii) ANY OF THE TRANSACTIONS CONTEMPLATED BY THE LOAN DOCUMENTS, (iii) ANY BREACH BY BORROWER OF ANY REPRESENTATION, WARRANTY, COVENANT, OR OTHER AGREEMENT CONTAINED IN ANY OF THE LOAN DOCUMENTS, OR (iv) ANY INVESTIGATION, LITIGATION, OR OTHER PROCEEDING, INCLUDING, WITHOUT LIMITATION, ANY THREATENED INVESTIGATION, LITIGATION, OR OTHER PROCEEDING RELATING TO ANY OF THE FOREGOING. Without limiting any provision of this agreement or of any other loan document, it is the express intention of the parties hereto that each person to be indemnified under this section shall be indemnified from and held harmless against any and all losses, liabilities, claims, damages, penalties, judgments, costs, and expenses (including attorneys fees) arising out of or resulting from the sole or contributory negligence of the person to be indemnified.
19. Limitation of Liability . Neither Lender nor any affiliate, officer director, employee, attorney, or agent of Lender shall have any liability with respect to, and Borrower hereby waives, releases, and agrees not to sue any of them upon, any claim for any special, indirect, incidental, or consequential damages suffered or incurred by Borrower in connection with, arising out of, or in any way related to, this Agreement or any of the other Loan Documents, or any of the transactions contemplated by this Agreement or any of the other Loan Documents. Borrower hereby waives, releases, and agrees not to sue Lender or any of Lenders affiliates, officers, directors, employees, attorneys, or agents for punitive damages in respect of any claim in connection with, arising out of, or in any way related to, this Agreement or any of the other Loan Documents, or any of the transactions contemplated by this Agreement or any of the other Loan Documents.
20. No Duty . All attorneys, accountants, appraisers, and other professional Persons and consultants retained by Lender shall have the right to act exclusively in the interest of Lender and shall have no duty of disclosure, duty of loyalty, duty of care, or other duty or obligation of any type or nature whatsoever to Borrower or any of Borrowers shareholders or any other Person.
21. Lender Not Fiduciary . The relationship between Borrower and Lender is solely that of debtor and creditor, and Lender has no fiduciary or other special relationship with Borrower, and no term or condition of any of the Loan Documents shall be construed so as to deem the relationship between Borrower and Lender to be other than that of debtor and creditor.
22. Equitable Relief . Borrower recognizes that in the event Borrower fails to pay, perform, observe, or discharge any or all of the Obligations, any remedy at law may prove to be inadequate relief to Lender. Borrower therefore agrees that Lender, if Lender so requests, shall be entitled to temporary and permanent injunctive relief in any such case without the necessity of proving actual damages.
23. Participations . Lender shall have the right at any time and from time to time to grant participations in the Note and any other Loan Documents, but Lender will at all times retain at least fifty percent (50%) of the principal balance of the Note outstanding, and Lender will not sell participations or other interests in
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the Loan to any hank that might compete with Bank without Borrowers authorization. Each participant shall be entitled to receive all information received by Lender regarding the creditworthiness of Borrower, including without limitation, information required to be disclosed to a participant pursuant to Banking Circular 181 (Rev., August 2, 1984), issued by the Comptroller of the Currency (whether the participant is subject to the circular or not).
24. Notices . All notices and other communications provided for in this Agreement and the other Loan Documents to which Borrower is a party shall be given or made by telex, telegraph, telecopy, cable, or in writing and telexed, telecopied, telegraphed, cabled, mailed by certified mail return receipt requested, or delivered to the intended recipient at the Address for Notices specified below its name on the signature pages hereof; or, as to any party at such other address as shall be designated by such party in a notice to the other party given in accordance with this Section. Except as otherwise provided in this Agreement, all such communications shall be deemed to have been duly given when transmitted by telex or telecopy, subject to telephone confirmation of receipt, or delivered to the telegraph or cable office, subject to telephone confirmation of receipt, or when personally delivered or, in the case of a mailed notice, when duly deposited in the mails, in each case given or addressed as aforesaid.
25. Defined Terms . Defined terms ( i.e ., terms delineated with capital letters) not otherwise defined herein shall be given the meanings commonly ascribed to them by the FFIEC, FDIC, state banking authorities, or other authority, as reasonably determined by Lender.
26. Entire Agreement . THIS AGREEMENT, THE NOTE, AND THE OTHER LOAN DOCUMENTS REFERRED TO HEREIN EMBODY THE FINAL, ENTIRE AGREEMENT AMONG THE PARTIES HERETO AND SUPERSEDE ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS, REPRESENTATIONS, AND UNDERSTANDINGS, WHETHER WRITTEN OR ORAL, RELATING TO THE SUBJECT MATTER HEREOF AND MAY NOT BE CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS OF THE PARTIES HERETO, THERE ARE NO ORAL AGREEMENTS AMONG THE PARTIES HERETO. The provisions of this Agreement and the other Loan Documents to which Borrower is a party may be amended or waived only by an instrument in writing signed by the parties hereto.
27. WAIVER OF JURY TRIAL . TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, BORROWER HEREBY IRREVOCABLY AND EXPRESSLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM (WHETHER BASED UPON CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF OR RELATING TO ANY OF THE LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREBY OR THE ACTIONS OF LENDER IN THE NEGOTIATION, ADMINISTRATION, OR ENFORCEMENT THEREOF.
28. Confidentiality . The Lender and any loan participants agree that it will not disclose without the prior written consent of the Borrower (other than to its employees, auditors, accountants, or counsel or any of its affiliates) any information with respect to the Borrower or its Subsidiaries which is furnished to it pursuant to this Agreement or any other Loan Document and which (i) the Borrower in good faith considers to be confidential, and (ii) is either clearly marked as confidential, provided that the Lender may disclose any such information (a) to any party to this Agreement, (b) to any Person if reasonably necessary to the administration of the Loan Document Documents, (c) as has been publicly disclosed; (d) as may be required or appropriate in any report, statement, or testimony submitted to or required by any municipal, state, or federal regulatory body having or claiming to have jurisdiction over the Lender or any of its affiliates or submitted to or required by the Board of Governors of the Federal Reserve System, the Federal Deposit Insurance Corporation, the Office of the Comptroller of the Currency, or similar organizations (whether in the United States of America or elsewhere) or their successors, (e) pursuant to any summons, subpoena, or other legal process, or in connection with any litigation, (f) in order to comply with any law, order, regulation, ruling, or other governmental requirement, (g) to any actual or proposed assignee, participant, or other transferee in connection with any other transfer or the Note, any advance under the loan, or any interest therein, provided that such assignee, participant or other transferee agrees to preserve the confidentiality of such information on substantially the same terms as those contacted in this Section, or (h) in connection with the exercise of any right or remedy by lender.
[SIGNATURE PAGE FOLLOWS]
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Sincerely,
INDEPENDENT BANK GROUP, INC. |
||
By: | /s/ DAVID R. BROOKS | |
Name: David R. Brooks | ||
Title: Chairman and CEO | ||
Address for Notices: 1600 Redbud, Suite 400 McKinney, TX 75069 Fax No.: 972-562-3815 Telephone No: 972-562-3426 Attention: David R. Brooks |
Accepted and agreed to :
TIB-THE INDEPENDENT BANKERSBANK |
||
By: | /s/ TANDY L. HIX | |
Name: Tandy L. Hix Title: Senior Vice President |
||
Address for Notices: 350 Phelps Drive Irving, Texas 5038 Fax No.: 972-541-0554 Telephone No.: 972-650-6024 Attention: Carly Hodges |
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SCHEDULE 1
Debt and Liens
SCHEDULE 2
Subsidiaries
Schedule 2
List of Subsidiaries
Independent Bank Group, Inc.
1. | Independent Bank, McKinney, Texas |
2. | IBG Adriatica Holdings, Inc. |
Independent Bank
1. | IBG Real Estate Holdings, Inc. |
2. | IBG Aviation Holdings, Inc. |
EXHIBIT 10.6
TIB THE INDEPENDENT BANKERSBANK
PROMISSORY NOTE
$7,000,000.00 | March 15, 2012 |
FOR VALUE RECEIVED, the undersigned, INDEPENDENT BANK GROUP, INC. ( Maker ), promises to pay to the order of TIB THE INDEPENDENT BANKERSBANK ( Payee ) the principal sum of Seven Million and No/100 Dollars ($7,000,000.00), or so much thereof as shall be advanced hereunder, at or before the maturity of this Note, with interest on the unpaid balance outstanding from time to time at the rate or rates specified below, both principal and interest payable as provided below in lawful money of the United States of America at the address of Payee set forth below or at such other place as from time to time may be designated by the holder of this Note.
I. Interest Rates and Payments
Prior to default or maturity, the unpaid principal of this Note from time to time outstanding shall bear interest at the rate ( Rate ) of interest per annum equal to the greater of (i) four and one-half percent (4.50%) ( Floor ), or (ii) the rate reported in the Credit Markets section (or similar section) of The Wall Street Journal as the U.S. Prime Rate , as announced from time to time automatically fluctuating upward and downward with each announcement without notice to Maker or any other person (the Index ), provided that in no event shall the Rate exceed the maximum interest rate permitted under applicable law ( Maximum Rate ). If hereafter the Index shall change, the rate of interest on the unpaid balance of principal of this Note prior to maturity shall be increased or decreased, as the case may be, from time to time as of the effective date of each change in the Index, but in no event less than the Floor. If applicable law provides for a ceiling, that ceiling shall be the indicated rate ceiling. All interest accruing under this Note shall be calculated on the basis of a 360-day year applied to the actual number of days elapsed.
Quarterly payments of principal in the amount of $250,000.00 (assuming at least that much principal is outstanding hereunder), plus accrued and unpaid interest, shall be due and payable commencing on June 15, 2012, and continuing on the same day of each calendar quarter until March 15, 2015 ( Maturity Date ), on which date all accrued interest, principal (which will be a balloon payment), and other charges under this Note shall be fully due and payable.
All principal and interest which is matured or otherwise past due under this Note shall bear interest at the Maximum Rate, or, if no such rate is designated under applicable law, at the rate of eighteen percent (18%) per annum.
Maker shall have the right to prepay, without penalty, at any time and from time to time prior to maturity, all or any part of the unpaid principal balance of this Note and all or any part of the unpaid interest accrued to the date of such prepayment, provided that any such principal thus paid is accompanied by accrued interest on such principal. Any partial prepayments of principal shall be applied to installments thereof in the inverse order of maturity.
PROMISSORY NOTE - INDEPENDENT BANK GROUP, INC. - $7,000,000 - Page 1
II. Security
This Note is secured in part by a Pledge Agreement ( Pledge Agreement ), dated of even date herewith, by and between Maker and Payee, pledging certain collateral therein to secure repayment of this Note.
III. Right to Accelerate Upon Default
The holder of this Note shall have the option of declaring the principal balance hereof and the interest accrued hereon to be immediately due and payable upon the occurrence of a default hereunder or an Event of Default under the Loan Agreement, and the continuance of such default for a relevant grace or notice period provided therein, if any.
IV. Waiver of Conditions and Defenses to Liability
Maker and any other party who is or becomes liable to pay all or any part of this Note, or who grants any lien or security interest to secure all or any part of this Note (each called an other liable party below), including but not limited to any drawer, acceptor, endorser, guarantor, surety or accommodation party, severally waive presentment for payment, demand, notice of demand and of dishonor and nonpayment of this Note, notice of intention to accelerate the maturity of this Note, protest and notice of protest, diligence in collecting, and the bringing of suit against any other party.
Further, Maker and any other liable party severally waive any notice of or defense based upon any agreement or consent of the holder of this Note made or given from time to time, before or after maturity, to any of the following: the acceleration, renewal or extension of this Note; a change in the time or manner of payments required by this Note; a change in the rates of interest specified in this Note; acceptance or surrender of security; a substitution of security or subordination, amendment or release of security; an addition or release of any other liable party; changes of any sort whatever in the terms of payment of this Note or in the manner of doing business with Maker; and any settlement or compromise with Maker or any other liable party on such terms as the holder of this Note may deem appropriate in its sole and absolute discretion.
The holder of this Note may apply all moneys received from Maker or others, or from any security (whether held under a security instrument or not), in such manner upon the indebtedness evidenced or secured by this Note or the Loan Agreement (whether then due or not) as such holder may determine to be in its best interest, without in any way being required to marshal assets or to apply all or any part of such moneys upon any particular part of such indebtedness. The holder of this Note is not required to retain, hold, protect, exercise due care with respect to, perfect security interests in or otherwise assure or safeguard any security for this Note, and no failure by the holder of this Note to do any of the foregoing and no exercise or failure to exercise by such holder of any other right or remedy shall in any way affect any of Makers or any other liable partys obligations hereunder or under the Loan Agreement or affect any security or give Maker or any other liable party any recourse against the holder of this Note.
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V. Usury Savings Provision
It is the intent of Maker and Payee in the execution of this Note and the Loan Agreement to contract in strict compliance with applicable usury law. In furtherance thereof, Maker and Payee stipulate and agree that none of the terms and provisions contained in this Note, or in any other instrument executed in connection herewith, shall ever be construed to create a contract to pay for the use, forbearance or detention of money, interest at a rate in excess of the Maximum Rate. Neither Maker nor any guarantors, endorsers or other parties now or hereafter becoming liable for payment of this Note shall ever be obligated or required to pay interest on this Note at a rate in excess of the Maximum Rate, and the provisions of this paragraph shall control over all other provisions of this Note and the Loan Agreement which may be in apparent conflict herewith. Payee expressly disavows any intention to charge or collect excessive unearned interest or finance charges in the event the maturity of this Note is accelerated. If the maturity of this Note shall be accelerated for any reason or if the principal of this Note is paid prior to the end of the term of this Note, and as a result thereof the interest received for the actual period of existence of the loan evidenced by this Note exceeds the applicable maximum lawful rate, the holder of this Note shall credit the amount of such excess against the principal balance of this Note then outstanding and thereby shall render inapplicable any and all penalties of any kind provided by applicable law as a result of such excess interest; provided, however, that if the principal hereof has been paid in full, such excess shall be refunded to Maker. If the holder of this Note shall receive money (or anything else) which is determined to constitute interest and which would increase the effective interest rate on this Note or the other indebtedness evidenced or secured by any documents executed in connection herewith (the Loan Documents ) to a rate in excess of that permitted by applicable law, the amount determined to constitute interest in excess of the lawful rate shall be credited against the principal balance of this Note then outstanding or, if the principal balance has been paid in full, refunded to Maker, in which event any and all penalties of any kind under applicable law as a result of such excess interest shall be inapplicable. If the holder of this Note shall not actually receive, but shall contract for, request or demand, a payment of money (or anything else) which is determined to constitute interest and which would increase the effective interest rate contracted for or charged on this Note or the other indebtedness evidenced or secured by the Loan Documents to a rate in excess of that permitted by applicable law, the holder of this Note shall be entitled, following such determination, to waive or rescind the contractual claim, request or demand for the amount determined to constitute interest in excess of the lawful rate, in which event any and all penalties of any kind under applicable law as a result of such excess interest shall be inapplicable. By execution of this Note Maker acknowledges that Maker believes the loan evidenced by this Note to be non-usurious and agrees that if, at any time, Maker should have reason to believe that such loan is in fact usurious, Maker will give the holder of this Note notice of such condition and Maker agrees that the holder shall have sixty (60) days in which to make appropriate refund or other adjustment in order to correct such condition if in fact such exists. Additionally, if, from any circumstance whatsoever, fulfillment of any provision hereof or any other Loan Documents shall, at the time fulfillment of such provision be due, involve transcending the Maximum Rate then, ipso facto , the obligation to be fulfilled shall be reduced to the Maximum Rate. The term applicable law as used in this Note shall mean the laws of the State of Texas or the laws of the United States, whichever laws allow the greater rate of interest, as such laws now exist or may be changed or amended or come into effect in the future.
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VI. Miscellaneous
Should the indebtedness represented by this Note or any part thereof be collected at law or in equity or through any bankruptcy, receivership, probate or other court proceedings or if this Note is placed in the hands of attorneys for collection after default, Maker and all endorsers, guarantors and sureties of this Note jointly and severally agree to pay to the holder of this Note in addition to the principal and interest due and payable hereon all the costs and expenses of the holder in enforcing this Note including, without limitation, reasonable attorneys fees and legal expenses.
This Note and the rights, duties and liabilities of the parties hereunder or arising from or relating in any way to the indebtedness evidenced by this Note or the transaction of which such indebtedness is a part shall be governed by and construed in accordance with the law of the State of Texas and the law of the United States applicable to transactions within such State.
No amendment of this Note shall be binding unless expressed in a writing executed by Maker and the holder of this Note.
Maker certifies, represents, and warrants to Payee that the proceeds hereof are to be used for a commercial purpose and not for personal, family, household, or agricultural purposes.
THE PARTIES HERETO VOLUNTARILY AND KNOWINGLY WAIVE ANY AND ALL RIGHTS TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER PARTY ON ANY MATTER WHATSOEVER ARISING OUT OF, IN CONNECTION WITH, OR RELATED TO ANY OF THE LOAN DOCUMENTS.
THIS NOTE AND ALL OTHER DOCUMENTS AND INSTRUMENTS EXECUTED PURSUANT HERETO OR IN CONNECTION HEREWITH AND THE TRANSACTIONS CONTEMPLATED HEREBY ARE MADE AND PERFORMABLE IN DALLAS COUNTY, TEXAS AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS AND THE APPLICABLE LAWS OF THE UNITED STATES OF AMERICA. MAKER IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY TEXAS OR FEDERAL COURT SITTING IN DALLAS COUNTY, TEXAS OVER ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY OF THE LOAN DOCUMENTS, AND MAKER HEREBY AGREES AND CONSENTS THAT, IN ADDITION TO ANY METHODS OF SERVICE OF PROCESS PROVIDED FOR UNDER APPLICABLE LAW, ALL SERVICE OF PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY TEXAS OR FEDERAL COURT SITTING IN DALLAS COUNTY, TEXAS (OR SUCH OTHER COUNTY IN TEXAS) MAY BE MADE BY CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED, DIRECTED TO MAKER AT THE ADDRESS INDICATED BELOW, AND SERVICE SO MADE SHALL BE COMPLETE FIVE DAYS AFTER THE SAME SHALL HAVE BEEN SO MAILED.
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Makers Address: | MAKER: | |||||
1600 Redbud, Suite 400 McKinney, TX 75069 |
INDEPENDENT BANK GROUP, INC. | |||||
By: | /s/ DAVID R. BROOKS | |||||
David R. Brooks, Chairman and CEO |
Payees Address:
TIB THE INDEPENDENT BANKERSBANK
P.O. Box 560528
Dallas, TX 75356-0528
PROMISSORY NOTE - INDEPENDENT BANK GROUP, INC. - $7,000,000 - Page 5
EXHIBIT 10.7
Pledge Agreement | Date: As of March 15, 2012 |
BANK/SECURED PARTY:
TIB The Independent BankersBank P.O. Box 560528 Dallas, TX 75356-0528
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PLEDGOR/DEBTOR/BORROWER:
INDEPENDENT BANK GROUP, INC. 1066 Redbud, Suite 400 McKinney, TX 75069 |
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Pledgor/Debtor/Borrower is: ¨ Individual x Corporation ¨ Partnership ¨ Other
_______________________
Address is Pledgors/Debtors/Borrowers: ¨ Residence x Place of Business ¨ Chief Executive Office if more than one place of business |
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A. Security Interest . For good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, Pledgor/Debtor (hereinafter referred to as Pledgor , whether one or more) pledges, assigns and grants to Bank a security interest and lien in the Collateral (hereinafter defined) to secure the payment and the performance of the Obligations (hereinafter defined).
B. Collateral . The security interest is granted in the following collateral (the Collateral ):
1. 985,930 shares ( i.e. , 100%) of the outstanding Common Stock of Independent Bank - McKinney, McKinney, Texas.
2. Reserved .
3. All additions, substitutes and replacements for and proceeds of the above Collateral (including all income and benefits resulting from any of the above, such as dividends payable or distributable in cash, property or stock; interest, premium and principal payments; redemption proceeds and subscription rights; and shares or other proceeds of conversions or splits of any securities in the Collateral). Any investment property and/or securities received by Pledgor, which shall comprise such additions, substitutes and replacements for, or proceeds of, the Collateral, shall be held in trust for Bank and shall be delivered immediately to Bank. Any cash proceeds shall be held in trust for Bank and upon demand shall be delivered immediately to Bank.
4. The balance of every deposit account of Pledgor maintained with Bank and any other claim of Pledgor against Bank, now or hereafter existing, liquidated or unliquidated, and all money, instruments, investment property, securities, documents, chattel paper, credits, claims, demands, income, and any other property, rights and interests of Pledgor which at any time shall come into the possession or custody or under the control of Bank or any of its agents or affiliates, for any purpose, and the proceeds of any thereof. Bank shall be deemed to have possession of any of the Collateral in transit to or set apart for it or any of its agents or affiliates.
C. Obligations.
1. Description of Obligations . The following obligations ( Obligations ) are secured by this Agreement: (a) all debts, obligations, liabilities and agreements of Pledgor/Debtor/Borrower , to Bank, now or hereafter existing, arising directly or indirectly between Borrower and Bank whether absolute or contingent, joint or several, secured or unsecured, due or not due, contractual or tortious, liquidated or unliquidated, arising by operation of law or otherwise, and all renewals, extensions or rearrangement of any of the above; (b) all costs incurred by Bank to obtain, preserve, perfect and enforce this Agreement and maintain, preserve, collect and enforce the Collateral; (c) all debts, obligations, liabilities and agreements of Pledgor to Bank under this Agreement; (d) interest
PLEDGE AGREEMENT - INDEPENDENT BANK GROUP, INC. - $7,000,000 - Page 1
on the above amounts determined in accordance with applicable agreements between Bank and Pledgor or between Bank and Borrower; (e) all indebtedness, liabilities and obligations of Borrower to Bank under the Loan Agreement dated even date hereof (the Loan Agreement ) between Borrower and Bank and all renewals, extensions and modifications thereof; (f) all indebtedness, liabilities and obligations of Borrower to Bank under the Promissory Note dated the date hereof (the Note ) in the stated principal amount of $7,000,000.00 , payable by Borrower to the order of Bank, and all renewals, extensions and modifications thereof; (g) all indebtedness, liabilities and obligations of Borrower to Bank under that certain Term Promissory Note dated December 23, 2008 (as modified, amended, renewed, and/or replaced, the Prior Note ) in the original stated principal amount of $12,500,000.00 , payable by Borrower to the order of Bank, and the Loan Agreement executed concurrently therewith, and all renewals, extensions and modifications thereof; and (h) all reasonable expenses of the Bank, including reasonable fees and expenses of the Banks counsel, incident to the enforcement of payment of all obligations of the Pledgor by any action or participation in, or in connection with a case or proceeding under the Bankruptcy Code, or any successor statute thereto.
In the event any amount paid to Bank on any of the Obligations is subsequently recovered from Bank in or as a result of any bankruptcy, insolvency or fraudulent conveyance proceeding involving an obligor of the Obligations other than Pledgor, Pledgor shall be liable to Bank for the amounts so recovered up to the fair market value of the Collateral whether or not the Collateral has been released or the security interest terminated. In the event the Collateral has been released or the security interest terminated, the fair market value of the Collateral shall be determined, at Banks option, as of the date the Collateral was released, the security interest terminated, or said amounts were recovered.
2. Use of Proceeds . The proceeds of any indebtedness or obligation secured by the Collateral will not be used directly or indirectly to purchase or carry any margin stock as that term is defined in Regulation U of the Board of Governors of the Federal Reserve System, or extend credit to or invest in other parties for the purpose of purchasing or carrying any such margin stock, or to reduce or retire any indebtedness incurred for such purpose or otherwise in a manner which would violate Regulations T or U.
D . Pledgors Warranties . Pledgor hereby represents and warrants to Bank as follows:
1. Financing Statements . Except as may be noted by schedule attached hereto and incorporated herein by reference, no financing statement covering the Collateral is or will be on file in any public office, except the financing statements relating to this security interest or previously granted to Bank, and no security interest, other than the one herein created or previously granted to Bank, has attached or been perfected in the Collateral or any part thereof and is now in force or effect.
2. Ownership . Pledgor owns the Collateral free from any setoff, claim, restriction, lien, security interest or encumbrance except liens for taxes not yet due and payable and the security interest hereunder or previously granted to Bank.
3. Power and Authority . Pledgor has full power and authority to make this Agreement, and all necessary consents and approvals of any persons, entities, governmental or regulatory authorities and securities exchanges have been obtained to effectuate the validity of this Agreement.
E . Pledgors Covenants . Until full payment and performance of all of the Obligations and termination or expiration of any obligation or commitment of Bank to make advances or loans to Borrower, unless Bank otherwise consents in writing:
1. Obligations and This Agreement . Pledgor shall perform all of its agreements herein and in any other agreements between it and Bank.
2. Ownership of Collateral . Pledgor shall defend the Collateral against all claims and demands of all persons at any time claiming any interest therein adverse to Bank. Pledgor shall keep the Collateral free from all liens and security interests except those for taxes not yet due and payable and the security interest hereby created.
3. Banks Costs . Pledgor shall pay all costs necessary to obtain, preserve, perfect, defend and enforce the security interest created by this Agreement, collect the Obligations, and preserve, defend, enforce and collect the Collateral, including but not limited to taxes, assessments, reasonable attorneys fees, legal expenses and expenses of sales. Whether the Collateral is or is not in Banks possession, and without any obligation to do so and without waiving Pledgors default for failure to make any such payment, Bank at its option may pay any such costs and expenses and discharge encumbrances on the Collateral, and such payments shall be a part of the Obligations and bear interest at the rate set out in the Obligations. Pledgor agrees to reimburse Bank on demand for any costs so incurred.
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4. Information and Inspection . Pledgor shall (i) promptly furnish Bank any information with respect to the Collateral reasonably requested by Bank; (ii) allow Bank or its representatives to inspect and copy, or furnish Bank or its representatives with copies of, all records relating to the Collateral and the Obligations; and (iii) promptly furnish Bank or its representatives with any other information Bank may reasonably request.
5. Additional Documents . Pledgor shall sign and deliver any papers furnished by Bank which are necessary or desirable in the judgment of Bank to obtain, maintain and perfect the security interest hereunder and to enable Bank to comply with any federal or state law in order to obtain or perfect Banks interest in the Collateral or to obtain proceeds of the Collateral.
6. Notice of Changes . Pledgor shall notify Bank immediately of (i) any material change in the Collateral, (ii) a change in Pledgors residence or location, (iii) a change in any matter warranted or represented by Pledgor in this Agreement, or in any of the loan documents relating to the Obligations or furnished to Bank pursuant to this Agreement, and (iv) the occurrence of an Event of Default as defined herein.
7. Possession of Collateral . Pledgor shall deliver a copy of this Agreement (or other notice acceptable to Bank) to any Broker, financial intermediary, or any other person in possession of any of the Collateral or on whose books the interest of Pledgor in the Collateral appears, and such delivery shall constitute notice to such person of Banks security interest in the Collateral and shall constitute Pledgors instruction to such person to note Banks security interest on their books and records, or deliver to Bank certificates or other evidence of the Collateral promptly upon Banks request. Pledgor shall deliver all investment securities and other instruments and documents which are a part of the Collateral and in Pledgors possession to Bank immediately, or if hereafter acquired, immediately following acquisition, in a form suitable for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank with signatures appropriately guaranteed in form and substance suitable to Bank.
8. Change of Name/Status . Without the consent of Bank (not to be unreasonably withheld), Pledgor shall not change its name, change its corporate structure or status, use any trade name or engage in any business not reasonably related to its business as presently conducted; provided, however, that Bank may restructure as an S-corporation or such other structure so long as the value of the Collateral is not negatively impacted nor is the prospect for satisfaction of the Obligations impaired.
9. Power of Attorney . Pledgor appoints Bank and any officer thereof as Pledgors attorney-in-fact with full power in Pledgors name and on Pledgors behalf to do every act which Pledgor is obligated to do or may be required to do hereunder; however, nothing in this paragraph shall be construed to obligate Bank to take any action hereunder nor shall Bank be liable to Pledgor for failure to take any action hereunder. This appointment shall be deemed a power coupled with an interest and shall not be terminable as long as the Obligations are outstanding and shall not terminate on the disability or incompetence of Pledgor. Without limiting the generality of the foregoing, if an Event of Default has occurred and is continuing, Bank shall have the right and power to receive, indorse and collect all checks and other orders for the payment of money made payable to Pledgor representing any dividend, interest payment or other distribution payable in respect of the Collateral or any part thereof.
10. Other Parties and Other Collateral . No renewal or extensions of or any other indulgence with respect to the Obligations or any part thereof, no modification of the document(s) evidencing the Obligations, no release of any security, no release of any person (including any maker, indorser, guarantor or surety) liable on the Obligations, no delay in enforcement of payment, and no delay or omission or lack of diligence or care in exercising any right or power with respect to the Obligations or any security therefor or guaranty thereof or under this Agreement shall in any manner impair or affect the rights of Bank under any law, hereunder, or under any other agreement pertaining to the Collateral. Bank need not file suit or assert a claim for personal judgment against any person for any part of the Obligations or seek to realize upon any other security for the Obligations, before foreclosing or otherwise realizing upon the Collateral. Pledgor waives any right that can be waived to the benefit of or to require or control application of any other security or proceeds thereof, and agrees that Bank shall have no duty or obligation to Pledgor to apply to the Obligations any such other security or proceeds thereof
11. Waivers by Pledgor . Pledgor waives notice of the creation, advance, increase, existence, extension or renewal of, and of any indulgence with respect to, the Obligations; waives presentment, demand, notice of dishonor, and protest; waives notice of the amount of the Obligations outstanding at any time, notice of any
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change in financial condition of any person liable for the Obligations or any part thereof, notice of any Event of Default, and all other notices respecting the Obligations; and agrees that maturity of the Obligations and any part thereof may be accelerated, extended or renewed one or more times by Bank in its discretion, without notice to Pledgor. Pledgor waives any right to require that any action be brought against any other person or to require that resort be had to any other security or to any balance of any deposit account. Pledgor further waives any right of subrogation or to enforce any right of action against any other pledgor until the Obligations are paid in full.
F. Rights and Powers of Bank .
1. General . If an Event of Default has occurred and is continuing, Bank, without liability to Pledgor, may: take control of proceeds, including stock received as dividends or by reason of stock splits; release the Collateral in its possession to any Pledgor, temporarily or otherwise; reject as unsatisfactory any property hereafter offered by Pledgor as Collateral; take control of funds generated by the Collateral, such as cash dividends, interest and proceeds, and use same to reduce any part of the Obligations and exercise all other rights which an owner of such Collateral may exercise, except the right to vote or dispose of the Collateral before an Event of Default; and at any time after an Event of Default transfer any of the Collateral or evidence thereof into its own name or that of its nominee. Bank shall not be liable for failure to collect any account or instruments, or for any act or omission on the part of Bank, its officers, agents or employees, except for its or their own willful misconduct or gross negligence. The foregoing rights and powers of Bank will be in addition to, and not a limitation upon, any rights and powers of Bank given by law, elsewhere in this Agreement, or otherwise.
2. Convertible Collateral . Bank may present for conversion any Collateral which is convertible into any other instrument or investment security or a combination thereof with cash, but Bank shall not have any duty to present for conversion any Collateral unless it shall have received from Pledgor detailed written instructions to that effect at a time reasonably far in advance of the final conversion date to make such conversion possible.
G. Default .
1. Event of Default . For purposes of this Agreement, the term Event of Default shall have the same meaning given that term in the Loan Agreement.
2. Rights and Remedies . If an Event of Default has occurred and is continuing, then, in each and every such case, Bank may, without (a) presentment, demand, or protest, (b) notice of default, dishonor, demand, non-payment, or protest, (c) notice of intent to accelerate all or any part of the Obligations, (d) notice of acceleration of all or any part of the Obligations, or (e) notice of any other kind, all of which Pledgor hereby expressly waives (except for any notice required under this Agreement, any other loan document or which may not be waived under applicable law), at any time thereafter exercise and/or enforce any of the following rights and remedies, at Banks option:
A. Acceleration . The Obligations shall, at Banks option, become immediately due and payable, and the obligation, if any, of Bank to permit further borrowings under the Obligations shall at Banks option immediately cease and terminate.
B. Liquidation of Collateral . Sell, or instruct any Agent or Broker to sell, all or any part of the Collateral in a public or private sale, direct any Agent or Broker to liquidate all or any part of any Account and deliver all proceeds thereof to Bank, and apply all proceeds to the payment of any or all of the Obligations in such order and manner as Bank shall, in its discretion, choose, or exercise any remedy provided for in Section F or G hereof, in the Loan Agreement or in the Note.
C. Uniform Commercial Code . All of the rights, powers and remedies of a secured creditor under the Uniform Commercial Code (UCC) as adopted in the jurisdiction to which Bank is subject under this Agreement.
D. Right of Set Off . Without notice or demand to Pledgor, set off and apply against any and all of the Obligations any and all deposits (general or special, time or demand, provisional or final) and any other indebtedness, at any time held or owing by Bank or by any of Banks affiliates or correspondents to or for the credit of the account of Pledgor or any guarantor or indorser of Pledgors Obligations.
Pledgor specifically understands and agrees that any sale by Bank of all or part of the Collateral pursuant to the terms of this Agreement may be effected by Bank at times and in manners which could result in the proceeds of such sale as being significantly and materially less than might have been received if such sale had occurred at different times or in different manners, and Pledgor hereby releases Bank and its officers and representatives from and against any and all obligations and liabilities arising out of or related to the timing or manner of any such sale.
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If, in the opinion of Bank, there is any question that a public sale or distribution of any Collateral will violate any state or federal securities law, Bank may offer and sell such Collateral in a transaction exempt from registration under federal securities law, and any such sale made in good faith by Bank shall be deemed commercially reasonable.
H. General
1. Parties Bound . Banks rights hereunder shall inure to the benefit of its successors and assigns, and in the event of any assignment or transfer of any of the Obligations or the Collateral, Bank thereafter shall be fully discharged from any responsibility with respect to the Collateral so assigned or transferred, but Bank shall retain all rights and powers hereby given with respect to any of the Obligations or the Collateral not so assigned or transferred. All representations, warranties and agreements of Pledgor, if more than one, are joint and several and all shall be binding upon the personal representatives, heirs, successors and assigns of Pledgor.
2. Waiver . No delay of Bank in exercising any power or right shall operate as a waiver thereof; nor shall any single or partial exercise of any power or right preclude other or further exercise thereof or the exercise of any other power or right. No waiver by Bank of any right hereunder or of any default by Pledgor shall be binding upon Bank unless in writing, and no failure by Bank to exercise any power or right hereunder or waiver of any default by Pledgor shall operate as a waiver of any other or further exercise of such right or power or of any further default. Each right, power and remedy of Bank as provided for herein or in any of the loan documents related to the Obligations, or which shall now or hereafter exist at law or in equity or by statute or otherwise, shall be cumulative and concurrent and shall be in addition to every other such right, power or remedy. The exercise or beginning of the exercise by Bank of any one or more of such rights, powers or remedies shall not preclude the simultaneous or later exercise by Bank of any or all other such rights, powers or remedies.
3. Agreement Continuing . This Agreement shall constitute a continuing agreement. This Agreement shall apply to all future as well as existing transactions, whether or not of the character contemplated at the date of this Agreement, and if all transactions between Bank and Pledgor shall be closed at any time, shall be equally applicable to any new transactions thereafter. Provisions of this Agreement, unless by their terms exclusive, shall be in addition to other agreements between the parties. Time is of the essence of this Agreement. Notwithstanding the foregoing, in the event that all Obligations are fully and finally paid and all commitments of the Bank to extend credit to Borrower have been terminated, then this Agreement shall be terminated, and all Collateral shall, at the request of the Pledgor be released.
4. Definitions . Unless the context indicates otherwise, definitions in the UCC apply to words and phrases in this Agreement; if UCC definitions conflict, Article 8 and/or 9 definitions apply.
5. Notice . Notice shall be deemed reasonable if mailed postage prepaid at least five (5) days before the related action (or if the UCC elsewhere specifies a longer period, such longer period) to the address of Pledgor given above. Each notice, request and demand shall be deemed given or made, if sent by mail, upon the earlier of the date of receipt or five (5) days after deposit in the U.S. Mail, first class postage prepaid, or if sent by any other means, upon delivery.
6. Modifications . No provision hereof shall be modified or limited except by a written agreement expressly referring hereto and to the provisions so modified or limited and signed by Pledgor and Bank. The provisions of this Agreement shall not be modified or limited by course of conduct or usage of trade.
7. Partial Invalidity . The unenforceability or invalidity of any provision of this Agreement shall not affect the enforceability or validity of any other provision herein, and the invalidity or unenforceability of any provision of any loan document related to the Obligations to any person or circumstance shall not affect the enforceability or validity of such provision as it may apply to other persons or circumstances.
8. Applicable Law and Venue . This Agreement has been delivered in the State of Texas and shall, except for perfection and enforcement matters that may be required by applicable law to be governed by the laws of another state, be construed in accordance with the laws of that State. It is performable by Pledgor in the county or city of Banks address set out above and Pledgor expressly waives any objection as to venue in any such location. Wherever possible each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining provisions of this Agreement.
PLEDGE AGREEMENT - INDEPENDENT BANK GROUP, INC. - $7,000,000 - Page 5
9. Financing Statement . To the extent permitted by applicable law, a carbon, photographic or other reproduction of this Agreement or any financing statement covering the Collateral shall be sufficient as a financing statement, and Bank is authorized to file this Agreement or any other financing statements it determines to be necessary or prudent.
THIS WRITTEN AGREEMENT AND ANY OTHER DOCUMENTS EXECUTED IN CONNECTION HEREWITH REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their duly authorized representatives as of the date first above written.
Bank/Secured Party:
TIB THE INDEPENDENT BANKERSBANK |
Pledgor/Debtor/Borrower:
INDEPENDENT BANK GROUP, INC. |
|||||||
By: |
/s/ TANDY L. HIX |
By: |
/s/ D.W. BROOKS |
|||||
Tandy L. Hix, Senior Vice President | David R. Brooks, Chairman and CEO |
PLEDGE AGREEMENT - INDEPENDENT BANK GROUP, INC. - $7,000,000 - Page 6
EXHIBIT 10.8
LOAN AGREEMENT
IBG ADRIATICA HOLDINGS, INC., a Texas corporation
1600 Redbud Boulevard, Suite 400
McKinney, Texas 75069 (hereafter called Borrower) |
FIRST UNITED BANK AND TRUST COMPANY
1400 West Main Street
Durant, Oklahoma 74701 (hereafter called Lender) |
The Borrower, with its principal office, place of record-keeping and mailing address stated above, has applied to Lender for a loan to be evidenced by Borrowers promissory note dated effective June 28, 2011 , in the principal amount of $12,187,500.00 bearing interest at the rates therein specified and containing certain other terms and conditions as set forth therein (the Note). Repayment of the Note is personally guaranteed by the Guarantors executing this document, together with other subsequent Guaranties which may be executed hereinafter (the Guarantor(s)) and further secured by: Security Agreement (Collateral Transfer of Note and Liens), together with any other documents securing or governing the Note (the Security Instruments)
In consideration of Lender making such loan, Borrower agrees as follows:
SECTION I. REPRESENTATIONS AND WARRANTIES .
Borrower and Guarantor represent to Lender that:
(a) The foregoing statements concerning Borrower are true and correct;
(b) This Loan Agreement, Note, Security Instruments and any other instrument contemplated in connection herewith (the Loan Documents), have been duly executed and delivered, and constitute the legal and binding obligations of Borrower enforceable in accordance with their terms, and are not in conflict with any provision of law or any other agreement to which Borrower is a party;
(c) Borrowers and Guarantors Financial Information (hereafter defined) previously delivered to Lender is all correct and complete and fairly represents the Borrowers and Guarantors financial condition at the date of said Financial Information and the results of Borrowers operation for such period; all such Financial Information has been prepared in accordance with generally accepted accounting principles consistently followed throughout the periods involved. Since the date of such Financial Information, Borrower and Guarantor have not undergone any material adverse changes;
(d) There are no known actions, suits or proceedings against Borrower (for which adequate reserves have not been made on Borrowers books) at law or in equity, or before or by any governmental body or instrumentality, domestic or foreign; and contingent liabilities of Borrower are fully disclosed in the Financial Information referred to above;
(e) Borrower has good and indefeasible title to its properties and assets and same are subject to no liens, mortgages, security interest, encumbrances, or charges of any kind, except as may be reflected in the Financial Information previously furnished to Lender;
(f) Borrower is not a party to any agreement or instrument or subject to any restriction materially and adversely affecting its business, properties, assets, operations or its general condition whether financial or otherwise;
(g) No certificate or statement herewith or heretofore delivered by Borrower or Guarantor to Lender in connection herewith, or in connection with any transaction contemplated hereby, contains any untrue statement of a material fact or fails to state any material fact necessary to keep the statements contained therein from being misleading.
SECTION II. POSITIVE COVENANTS.
Borrower and Guarantor covenant to;
(a) Furnish to Lender within a period not to exceed ninety (90) days after the closing of each calendar year (or fiscal year, as the case may be), internally generated year end financial statements for Borrower and Guarantor, including balance sheet and profit and loss figures, rent rolls and occupancy reports to the extent applicable and all accountants comments for that year (Financial Information);
(b) Furnish to Lender within a period not to exceed one hundred eighty (180) days after the closing of each calendar year Audited Financial Information for Borrower and Guarantor prepared in accordance with generally accepted accounting principles, on a consolidated basis;
(c) Upon Lenders request, furnish to Lender concurrently with the furnishing of the year-end Financial Information referred to above, a written certificate signed by Borrower and containing a statement as to whether or not, to the knowledge of Borrower, a default has occurred and is continuing, and specifying, if a default exists, what steps are being taken by Borrower to cure the same;
(d) Furnish to Lender, within a period not to exceed thirty (30) days after the close of each calendar year, Financial Information for each Guarantor;
(e) Furnish Income Tax Returns for Borrower and each Guarantor within fifteen (15) days after their filing with the United States Internal Revenue Service. If Income Tax Returns for Borrower, and each Guarantor, are not filed by the 15 th day of April of each calendar year an extension must be provided by Borrower, and each Guarantor, to Lender;
(f) Furnish all Financial Information in such form as Lender may reasonably request and furnish such other information from time to time as Lender may reasonably request;
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(g) At all times keep true and complete books, records and accounts, and permit Lender through its agents and representatives to visit and inspect any of Borrowers properties and to discuss Borrowers affairs, finances and accounts with Borrower, all at such reasonable times as Lender may desire;
(h) Maintain and keep in full force and effect, its existence, rights and franchises and comply with all laws applicable to Borrower;
(i) Pay or cause to be paid all taxes, assessments and other governmental charges levied upon any of Borrowers properties or in respect of franchises or income before the same became delinquent, unless the same is being contested in good faith by appropriate proceedings and reserves deemed adequate by Lender have been established therefor;
(j) Maintain, preserve, protect and keep in good repair, working order and condition, its property and every part thereof used or useful in the conduct of Borrowers business and from time to time make all needful and proper repairs, renewals, replacements and improvements thereto, so that Borrowers business may be properly and advantageously conducted at all times;
(k) Keep adequately insured by reputable insurers satisfactory to Lender all property of a character usually insured by companies engaged in businesses similar to that of Borrower and carry such other insurance as is usually carried by similar companies and, at Lenders request, deliver to Lender evidence of the maintenance of such insurance;
(l) Pay all lawful claims, whether for labor, materials or otherwise, which might or could, if unpaid, become a lien or charge on any property or assets of Borrower, unless the same is being contested in good faith by appropriate proceedings and reserves deemed adequate to Lender have been established therefor;
(m) Comply fully with all of the provisions of the Loan Documents;
(n) Give immediate notification to Lender of any litigation, or of any claim or controversy which might become the subject of litigation, of any Federal tax lien, assessment or knowledge of a proposed tax assessment in excess of $10,000.00.
SECTION III. NEGATIVE COVENANTS.
Until the Note and all other obligations and liabilities of Borrower hereunder are fully paid, Borrower covenants that it will not, without prior written consent of Lender:
(a) Suffer or permit any Event of Default to occur under the Loan Documents but shall faithfully preserve and perform all of their covenants;
(b) Substantially change the nature of its business;
(c) Reorganize, merge or consolidate with, or acquire all or substantially all of the assets of any other company, firm or association, or make any other substantial change in its capitalization or character of its business;
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(d) Create, assume, incur or in any manner become or be liable in respect of, any borrowed money except to Lender, nor guarantee or contingently agree to purchase, or in any manner become or secondarily liable in respect to any indebtedness, whether current or funded, of any person or business entity except by the endorsement of negotiable instruments for deposit or collection or other similar transactions in the ordinary course of business;
(e) Allow any final judgment for the payment of money rendered against it to remain undischarged or unbonded for a period of 60 days;
(f) Create, assume or permit to exist any security interest, pledge, lien encumbrance or charge of any kind upon any of its properties or assets, whether now owned or hereafter acquired (provided, however, that the foregoing shall not apply to liens for taxes not delinquent or being contested in good faith, liens given to Lender, mechanics and materialmens liens with respect to obligations not overdue or being contested in good faith, liens resulting from deposits to secure the payment of workmens compensation or social security or to secure the performance of bids or contracts in the ordinary course of business);
(g) Sell any of its assets used or useful in its business, except in the regular course of business;
(h) Sell any of its assets to any other person, firm, or corporation with the understanding or agreement that such assets shall be leased back to Borrower;
(i) Make any loans or advances or sell any of its accounts receivable secured by the Security Instruments, with or without recourse.
SECTION IV. DEFAULT.
Each of the following events shall constitute an Event of Default:
(a) Default in the timely payment of any installment of principal and interest or in the performance of any covenant or provision of any Loan Documents.
(b) Default in payment when due of any amount payable to Lender or default in any other obligation of Borrower to Lender.
(c) Borrower, or any Guarantor, shall: (a) execute an assignment for the benefit of creditors or take any action in furtherance thereof; or (b) admit in writing its inability to pay its debts generally as they become due, or (c) as a debtor, file a petition, case, proceeding, or other action pursuant to, or voluntarily seek the benefit or benefits of any debtor relief law or take any action in furtherance thereof; or (d) seek, acquiesce in, or suffer the appointment of a receiver, trustee, or custodian of Borrower, any Guarantor, any Property described in the Loan Documents, in whole or in part, or any significant portion of other property belonging to Borrower or any Guarantor that affects performance under the Note; or (e) voluntarily become a party to any proceeding seeking to effect a suspension or having the effect of suspending any of the rights of Lender or the Trustee granted or referred to in the Loan Documents or take any action in furtherance thereof.
Page 4
(d) The filing of a petition, case, proceeding, or other action against Borrower, or any Guarantor, as a debtor under any debtor relief law; or seeking appointment of a receiver, trustee, or custodian of Borrower, or any Guarantor, or of any property described in the Loan Documents or any part thereof, or of any significant portion of other property belonging to Borrower or any Guarantor, that affects its ability to perform under the Note, or seeking to effect a suspension or having the effect of suspending any of the rights of Lender or the Trustee granted or referred to in the Loan Documents, and: (a) Borrower or any Guarantor admits, acquiesces in, or fails to contest the material allegations thereof; or (b) the petition, case, proceeding, or other action results in entry of an order for relief or order granting the relief sought against Borrower or any Guarantor; or (c) the petition, case, proceeding, or other action is not permanently dismissed on or before the earliest of trial thereon or sixty (60) days next following the date of its filing.
(e) The discovery by Lender that any warranty, covenant, or representation made to Lender by or on behalf of Borrower or any Guarantor is false, misleading, erroneous, or breached in any material respect.
A default shall not be an Event of Default, if a monetary default is cured within ten (10) days and a non-monetary default is cured within thirty (30) days following the delivery of or the mailing of written notice from Lender to Borrowers most current address as reflected in Lenders business records specifying the existence of any such default. If such default is not cured within the applicable period, the default shall be an Event of Default without need of any further notice or action by Lender. Notwithstanding the foregoing, if a non-monetary default is not capable of being cured within the thirty (30) day period referenced herein, it shall not be considered an Event of Default so long as Borrower is using diligent efforts to cure said non-monetary default.
Upon the occurrence of any such Event of Default, Lender at its option, without written notice, demand or presentation, which are hereby waived, may declare the unpaid principal of and accrued interest then owing upon the Note and any other indebtedness of Borrower to Lender, to be immediately due and payable, and upon such declaration such principal and interest shall become and be forthwith due and payable.
SECTION V. PARTIAL RELEASES . It is further agreed that Borrower shall have the privilege, while not in default under the terms of the Note or any of the Security Documents, of, from time to time, obtaining Releases from Lender on individual tracts of the real property which is described in the Security Documents. Each such tract shall be released upon payment to Lender of: (i) ninety percent (90%) of the Net Sales Proceeds of each tract; or (ii) the amount specified in the addendum attached as Exhibit A, whichever is greater. Net Sales Proceeds shall mean the gross proceeds payable to Borrower in connection with the sale of a tract after deducting normal and customary closing expenses of a seller, but only to the extent such expenses are actually paid by Borrower.
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SECTION VI. MISCELLANEOUS . All covenants and agreements contained herein shall bind and inure to the benefit of, and be enforceable by, the respective successors and assigns of the parties hereto, whether so expressed or not, and in particular shall inure to the benefit of and be enforceable by the holder of the Note. No modification, consent, amendment or waiver of any provision of this Agreement, nor consent to any departure by Borrower therefrom shall be effective unless the same shall be in writing and signed by an officer of Lender, and then shall be effective only in the specific instance and for the purpose for which given. This Agreement shall be construed and enforced in accordance with the laws of the State of Texas and any portion hereof held by a court of competent jurisdiction to be invalid or illegal shall not invalidate or nullify the remainder of this Agreement, but shall be confined only to that portion held invalid or illegal. No failure or delay on the part of Lender to exercise any right hereunder, shall operate as a waiver thereof; nor shall any single or partial exercise by Lender of any right hereunder preclude any other or further exercise thereof. The remedies herein provided are cumulative and not exclusive of any remedies provided by law. All accounting terms not specifically defined herein shall be construed in accordance with generally accepted principals of good accounting practice consistently applied on the basis used by Borrower in prior years.
Any notice under this Agreement shall be in writing and shall be effective when actually delivered or, if mailed, shall be deemed effective when deposited in the United States mail first class, certified mail, postage prepaid, directed to the addresses shown near the beginning of this Agreement. Any party may change its address for notices under this Agreement by giving formal written notice to the other parties, specifying that the purpose of the notice is to change the partys address. For notice purposes, Borrower agrees to keep Lender informed at all times of Borrowers current address.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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EFFECTIVE the 28 th day of June, 2011.
LENDER:
FIRST UNITED BANK AND TRUST COMPANY |
BORROWER:
IBG ADRIATICA HOLDINGS, INC., a Texas corporation |
|||||||
BY: | /s/ BERT DAVISON | BY: | /s/ DAVID R. BROOKS | |||||
NAME: Bert Davison | DAVID R. BROOKS, President | |||||||
TITLE: Sr. VP | ||||||||
GUARANTOR:
INDEPENDENT BANK GROUP, INC., a Texas corporation |
||||||||
BY: | /s/ DAVID R. BROOKS | |||||||
DAVID R. BROOKS, President |
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EXHIBIT A
PARTIAL RELEASE PRICES
RELEASED PROPERTY | MINIMUM RELEASE PRICE | |
Lot 5, Block A, of ADRIATICA LOT 1R, 4 and 5, BLOCK A, A CROATIAN VILLAGE AT STONEBRIDGE RANCH, an Addition to the City of McKinney, Collin County, Texas, according to the Plat thereof recorded in Volume Q, Page 607, of the Map Records of Collin County, Texas | $4,500,000.00 | |
Lot 4R, Block A of Adriatica, an addition to the City of McKinney, Collin County, Texas, according to the plat thereof recorded in Volume 2006, Page 543, Map Records, Collin County, Texas | $3,500,000.00 | |
18.3 acre tract of land located in the City of McKinney, Collin County, Texas | $5.00 per square foot | |
Being Lot 1, Block A, of VILLA DISTRICTADRIATICA, an Addition to the City of McKinney, Collin County, Texas, according to the Plat thereof recorded in Volume 2006, Page 471, Map Records of Collin County, Texas | $350,000.00 | |
Being Lot 3, Block A, of VILLA DISTRICTADRIATICA, an Addition to the City of McKinney, Collin County, Texas, according to the Plat thereof recorded in Volume 2006, Page 471, Map Records of Collin County, Texas | $350,000.00 | |
57 individual lots of land located in Collin County, Texas | $22,500.00 per lot or, in the event the lots are replatted, an aggregate of $1,282,500.00, which shall be prorated over the balance of the replatted lots, as approved by Lender |
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EXHIBIT 10.9
Loan No.
COMMERCIAL PROMISSORY NOTE
IBG ADRIATICA HOLDINGS, INC., a Texas corporation |
FIRST UNITED BANK AND TRUST COMPANY |
|
1600 Redbud Boulevard, Suite 400 |
1400 West Main Street | |
McKinney, Texas 75069 (hereafter called Borrower) |
Durant, Oklahoma 74701 (hereafter called Lender) |
$12,187,500.00 Note Amount |
June 28, 2011 Effective Date |
June 28, 2015 Maturity Date |
FOR VALUE RECEIVED , Borrower, jointly and severally if more than one, promises to pay to the order of Lender (which term shall include all subsequent holders of this Note) at its offices set forth above or at such other address as Lender may from time to time designate, in lawful money of the United States of America, the principal sum of Twelve Million One Hundred Eighty-Seven Thousand Five Hundred and 00/100 Dollars ($12,187,500.00) , or so much thereof as may be advanced and outstanding from time to time, with interest at the rate provided below on the principal balance from time to time remaining unpaid, in the amounts, at the times and upon the terms provided in this Note. This Note is performable in Bryan County, Oklahoma.
INTEREST RATE . Interest shall accrue on the unpaid balance of this Note from time to time outstanding which is not past due, calculated on a 360-day annual basis (the Rate), except as otherwise provided herein, as follows:
For the period from the date hereof until June 28, 2013 the Rate shall be fixed at three and one-quarter percent (3.25%) per annum.
Thereafter, beginning June 28, 2013 , Rate shall be the lesser of (a) the Loan Rate (hereinafter defined) or (b) the Highest Lawful Rate (hereinafter defined). The term Loan Rate shall mean the Index as hereafter defined. The Loan Rate shall be subject to change daily with changes in the Index.
Any change in either the Loan Rate or the Highest Lawful Rate shall, after Lender gives only such notice as may be required by applicable law or regulation, be effective for purposes of determining the Rate as of the opening of business on the date of any such change.
The Index is The Wall Street Journal Prime Rate which is the highest rate shown as the base rate on corporate loans posted by at least 75% of the nations 30 largest banks as published daily in the Money Rates Section of the Wall Street Journal.
Loan No.
The Highest Lawful Rate is the maximum lawful rate which may be contracted for, charged, taken, received, or reserved by Lender in accordance with the applicable laws of the State of Texas (or applicable United States federal law to the extent that it permits Lender to contract for, charge, take, receive or reserve a greater amount of interest than under Texas law), taking into account all charges made in connection with this loan which are treated as interest under applicable law.
If at any time (i) the Loan Rate, (ii) interest on matured unpaid amounts, if applicable, as provided for herein or in any of the other Loan Documents, together with (iii) all fees and charges, if any, contracted for, charged, received, taken or reserved by Lender in connection with the loan evidenced hereby which are treated as interest under applicable law (collectively, the Charges), computed over the full term of this Note, exceed the Highest Lawful Rate, the rate of interest payable hereunder, together with all Charges, shall be limited to the Highest Lawful Rate; provided, however, that any subsequent reduction in the Loan Rate shall not cause a reduction of the rate of interest payable hereunder below the Highest Lawful Rate until the total amount of interest earned hereunder, together with all Charges, equals the total amount of interest which would have accrued at the Loan Rate if such interest rate had at all times been in effect. Changes in the Loan Rate resulting from a change in the Index shall be subject to the provisions of this paragraph.
PREPAYMENT . Borrower may prepay this Note in whole or in part at any time without being required to pay any penalty or premium for such privilege. In the event a prepayment is made, such payment shall be applied first against accrued but unpaid interest, then to the discharge of any expenses for which the holder of this Note may be entitled to receive reimbursement under the terms of this Note or under the terms of any other documents related thereto and lastly against the principal hereof. Any partial prepayment shall not postpone the due date or change the amount of any subsequent installment due hereunder.
PAST DUE PAYMENTS . Lender may charge and collect a late fee of up to five percent (5%) of the unpaid portion of the regularly scheduled payment more than 15 days past due to the extent not prohibited by law. The annual interest rate on matured unpaid amounts shall be eighteen percent (18%) .
DISHONORED CHECK CHARGE . Lender may charge and collect a processing fee of up to $25.00 for each check given by Borrower to Lender as a payment on this loan which is dishonored.
PAYMENT TERMS . This Note shall be due and payable as follows:
Interest only, shall be due and payable quarterly as it accrues, on the 28th day of March, June, September and December of each and every calendar year, beginning September 28, 2011 , and continuing regularly and quarterly thereafter until June 28, 2015 , when the entire amount of principal and interest remaining unpaid, shall be then due and payable.
INITIALS DRB
Page 2
Loan No.
THIS LOAN IS PAYABLE IN FULL AT MATURITY. BORROWER MUST REPAY THE ENTIRE PRINCIPAL BALANCE OF THE LOAN AND UNPAID INTEREST THEN DUE. THE LENDER IS UNDER NO OBLIGATION TO REFINANCE THE LOAN AT THAT TIME. BORROWER WILL, THEREFORE, BE REQUIRED TO MAKE PAYMENT OUT OF OTHER ASSETS THAT BORROWER MAY OWN, OR BORROWER WILL HAVE TO FIND A LENDER WHICH MAY BE THE LENDER BORROWER HAS THIS LOAN WITH, WILLING TO LEND BORROWER THE MONEY. IF BORROWER REFINANCES THIS LOAN AT MATURITY, BORROWER WILL HAVE TO PAY SOME OR ALL OF THE CLOSING COSTS NORMALLY ASSOCIATED WITH A NEW LOAN EVEN IF BORROWER OBTAINS REFINANCING FROM THE SAME LENDER. THIS LENDER WILL CONSIDER AN APPLICATION TO REFINANCE THE BALLOON PAYMENT AT THE TIME PAYMENT IS DUE, ON THE SAME BASIS AS ALL OTHER NEW MORTGAGE LOAN APPLICATIONS.
WAIVER . Except as otherwise expressly stated in any of the Loan Documents, Borrower and any and all co-borrowers, endorsers, guarantors, and sureties severally waive notice, notice of intent to accelerate, notice of acceleration, demand, grace, presentment for payment, and protest and agree that this Note and all liens securing its payment may be extended and re-extended and the time for payment extended and re-extended from time to time without notice to them or any of them, and they severally agree that their liability on or with respect to this Note shall not be affected by any release or change in any security at any time existing or by any failure to perfect or maintain perfection of any security interest in such security.
TIME OF THE ESSENCE . It is agreed that time is of the essence in the performance of this Note.
EVENTS OF DEFAULT . Each of the following events shall constitute an Event of Default:
1. Default in the timely payment of any installment of principal and interest or in the performance of any covenant or provision of any Loan Document as hereafter defined.
2. Default in payment when due of any amount payable to Lender or default in any other obligation of Borrower to Lender.
3. Borrower, or any Guarantor, shall. (a) execute an assignment for the benefit of creditors or take any action in furtherance thereof; or (b) admit in writing its inability to pay its debts generally as they become due; or (c) as a debtor, file a petition, case, proceeding, or other action pursuant to, or voluntarily seek the benefit or benefits of any debtor relief law or take any action in furtherance thereof; or (d) seek, acquiesce in, or suffer the appointment of a receiver, trustee, or custodian of Borrower, any Guarantor, the Property as herein defined, in whole or in part, or any significant portion of other property belonging to Borrower or any Guarantor that affects performance under this Note; or (e) voluntarily become a party to any proceeding seeking to effect a suspension or having the effect of suspending any of the rights of Lender or the Trustee granted or referred to in the Loan Documents or take any action in furtherance thereof.
INITIALS DRB
Page 3
Loan No.
4. The filing of a petition, case, proceeding, or other action against Borrower, or any Guarantor, as a debtor under any debtor relief law; or seeking appointment of a receiver, trustee, or custodian of Borrower, or any Guarantor, or of any property described in the Loan Documents or any part thereof, or of any significant portion of other property belonging to Borrower or any Guarantor, that affects its ability to perform under this Note, or seeking to effect a suspension or having the effect of suspending any of the rights of Lender or the Trustee granted or referred to in the Loan Documents, and: (a) Borrower or any Guarantor admits, acquiesces in, or fails to contest the material allegations thereof; or (b) the petition, case, proceeding, or other action results in entry of an order for relief or order granting the relief sought against Borrower or any Guarantor; or (c) the petition, case, proceeding, or other action is not permanently dismissed on or before the earlier of trial thereon or sixty (60) days next following the date of its filing.
5. The discovery by Lender that any warranty, covenant, or representation made to Lender by or on behalf of Borrower or any Guarantor is false, misleading, erroneous, or breached in any material respect.
A default shall not be an Event of Default, if a monetary default is cured within ten (10) days and a non-monetary default is cured within thirty (30) days following the delivery of or the mailing of written notice from Lender to Borrowers most current address as reflected in Lenders business records specifying the existence of any such default. If such default is not cured within the applicable period, the default shall be an Event of Default without need of any further notice or action by Lender. Notwithstanding the foregoing, if a non-monetary default is not capable of being cured within the thirty (30) day period referenced herein, it shall not be considered an Event of Default so long as Borrower is using diligent efforts to cure said non-monetary default.
ACCELERATION AND WAIVER OF NOTICE . Upon the occurrence of an Event of Default, the entire unpaid principal balance plus all accrued and unpaid interest due and owing on this Note and any and all other indebtedness of Borrower to Lender shall, at the option of Lender, become and be due and payable forthwith without demand, notice of default, notice of intent to accelerate, or the acceleration of the maturity hereof, notice of nonpayment, presentment, protest, or notice of dishonor, all of which are hereby expressly waived to the full extent not prohibited by law by Borrower and each other liable party. Failure to exercise this option upon the occurrence of any such Event of Default shall not constitute a waiver of the right to exercise such option in the event of any subsequent Event of Default.
COLLECTION COSTS AND JOINT AND SEVERAL LIABILITY . If the unpaid principal balance plus all accrued and unpaid interest due and owing on this Note is not paid at maturity, whether by acceleration or otherwise, and this Note is placed in the hands of an attorney for collection, or suit is filed hereon, or proceedings are had in probate, bankruptcy, receivership, reorganization, arrangement, or other legal proceedings for collection hereof, Borrower and each other liable party agree to pay Lender its reasonable collection costs, including a reasonable amount for attorneys fees. Borrower and each other liable party is and shall be directly and primarily, jointly and severally, liable for the payment of all sums due hereunder, under the Loan Documents and under any instrument securing the payment hereof,
INITIALS DRB
Page 4
Loan No.
and Borrower and each other liable party hereby expressly waives bringing of suit and diligence in taking any action to collect any sums owing hereon and in the handling of any security, and Borrower and each other liable party hereby consents to and agrees to remain liable hereon regardless of any renewals, extensions for any period or rearrangements hereof, or any release or substitution of security hereof in whole or in part, with or without notice, from time to time, before or after maturity.
LOAN CHARGES . It is expressly stipulated and agreed to be the intent of Borrower and Lender at all times to comply with the applicable Texas law governing the maximum rate or amount of interest payable on this Note or the indebtedness evidenced hereby and by the other Loan Documents (or applicable United States federal law to the extent that it permits the Borrower to contract for, charge, take, reserve or receive a greater amount of interest than under Texas law). If the applicable law is ever judicially interpreted so as to render usurious any amount called for under this Note or under any of the Loan Documents, or contracted for, charged, taken, reserved or received with respect to such indebtedness, or if Borrowers exercise of the option herein contained to accelerate the maturity of this Note or if any prepayment by Borrower results in Borrower having paid any interest in excess of that permitted by applicable law, then it is Borrowers and Lenders express intent that all excess amounts theretofore collected by Lender be credited on the principal balance of this Note (or, if this Note has been or would thereby be paid in full, refunded to Borrower), and the provisions of this Note and the other Loan Documents immediately be deemed reformed and the amounts thereafter collectible hereunder and thereunder reduced, without the necessity of the execution of any new document, so as to comply with the applicable law, but so as to permit the recovery of the fullest amount otherwise called for hereunder and thereunder. Notwithstanding anything to the contrary contained herein or in any of the other Loan Documents, it is not the intention of Lender to accelerate the maturity of any interest that has not accrued at the time of such acceleration or to collect unearned interest at the time of such acceleration. All sums paid or agreed to be paid by Lender for the use, forbearance or detention of the indebtedness evidenced hereby and by the other Loan Documents shall, to the extent permitted by applicable law, be amortized, prorated, allocated and spread throughout the full term of such indebtedness until payment in full so that the rate or amount of interest on account of such indebtedness does not exceed the usury ceiling from time to time in effect and applicable to such indebtedness evidenced hereby for so long as debt is outstanding. To the extent that Lender is relying on the Texas Finance Code, as amended, to determine the Highest Lawful Rate payable on such indebtedness, Lender will utilize the indicated (weekly) rate ceiling from time to time in effect. To the extent United States federal law permits Lender to contract for, charge or receive a greater amount of interest, Lender will rely on United States federal law instead of the Texas Finance Code, as amended, for the purpose of determining the Highest Lawful Rate. Additionally, to the extent permitted by applicable law now or hereafter in effect, Lender may, at its option and from time to time, implement any other method of computing the Highest Lawful Rate under any other applicable law by giving notice, if required, to Borrower as provided by applicable law now or hereafter in effect.
INITIALS DRB
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Loan No.
RIGHT OF SET OFF . Borrower grants to Lender a contractual possessory security interest in and hereby assigns, conveys, delivers, pledges, and transfers to Lender, all Borrowers right, title and interest in and to Borrowers accounts with Lender (whether checking, savings or some other account), including without limitation all accounts held jointly with someone else and all accounts Borrower may open in the future, excluding however all IRA, Keogh and trust accounts. Borrower authorizes Lender, to the extent permitted by applicable law, to charge or set off all sums owing on this Note against any and all such amounts.
ADDITIONAL SECURITY . This Note is secured by all security agreements, collateral assignments, assignments, guaranties, deeds of trust, and lien instruments executed by Borrower (or by any Guarantor) in favor of Lender or any other holder of this Note, including those executed simultaneously herewith, those executed heretofore and those hereafter executed, and by all such agreements, assignments, guaranties, and security instruments securing the payment of all other indebtedness of Borrower to Lender.
REMEDIES OF LENDER . Lender shall have all rights, remedies, and recourses granted in this Note, the Loan Documents and all other instruments securing the payment hereof and the payment of all indebtedness of Borrower to Lender, howsoever evidenced, and those which are available at law or equity, and same: (a) shall be cumulative and concurrent; (b) may be pursued separately, successively, or concurrently against Borrower or any other liable party or against any one or more of them at the sole discretion of Lender and in such order as Lender, in its sole discretion, shall determine; (c) may be exercised as often as occasion therefore shall arise, it being agreed by Borrower that the exercise or failure to exercise any of the same shall in no event be construed as a waiver or release thereof or of any other right, remedy, or recourse; and (d) are intended to be, and shall be, nonexclusive. If any part of this Note cannot be enforced, this fact will not affect the rest of this Note. This loan shall be governed by and construed in accordance with the laws of the State of Texas and applicable United States federal law.
NOTICES TO BORROWER AND OTHER PARTIES . Any notice under this Note shall be in writing and shall be effective when actually delivered or, if mailed, shall be deemed effective when deposited in the United States mail first class, certified mail, postage prepaid, directed to the addresses shown near the beginning of this Note. Any party may change its address for notices under this Note by giving formal written notice to the other parties, specifying that the purpose of the notice is to change the partys address. For notice purposes, Borrower agrees to keep Lender informed at all times of Borrowers current address.
LOAN DOCUMENTS . This Note and all other instruments executed in connection herewith and/or securing repayment hereof (the Loan Documents), including but not limited to:
(a) The Additional Security as described above.
(b) Security Agreement (Collateral Transfer Note and Liens) executed by Borrower for the benefit of Lender and any subsequent holder of this Note, of even date herewith.
INITIALS DRB
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Loan No.
(c) Loan Agreement executed by Borrower for the benefit of Lender and any subsequent holder of this Note, of even date herewith.
(d) Commercial Guaranty Agreement executed by INDEPENDENT BANK GROUP, INC., a Texas corporation, for the benefit of Lender and any subsequent holder of this Note, of even date herewith.
PROPERTY . The property described in the Loan Documents (the Property) is:
Being all those certain tracts or parcels of land situated in Collin County, Texas, more fully described in Exhibit A attached hereto and made a part hereof for all purposes.
IBG ADRIATICA HOLDINGS, INC., a Texas corporation |
||
BY: | /s/ DAVID R. BROOKS | |
DAVID R. BROOKS, President |
PREPARED IN THE LAW OFFICE OF:
William David Keese, P.C.
1400 West Main Street
Durant, Oklahoma 74702
INITIALS DRB
Page 7
EXHIBIT A
TRACT I
Lot 2, Block B and the Common Area B-1 of ADRIATICA, BLOCK B, LOTS 1R & 2, an Addition to the City of McKinney, Collin County, Texas, according to the Revised Plat recorded In Volume 2006, Page 130, of the Map Records of Collin County, Texas.
TRACT II
Lot 2, Block C of ADRIATICA, a Croatian Village at Stonebridge Ranch, an Addition to the City of McKinney, Collin County, Texas, according to the Revised Plat recorded In Cabinet Q, Page 597, of the Map Records of Collin County, Texas.
TRACT III
Lot 1R, Block A of ADRIATICA, a Croatian Village at Stonebridge Ranch, an Addition to the City of McKinney, Collin County, Texas, according to the Revised Plat recorded in Cabinet Q, Page 607, of the Map Records of Collin County, Texas.
TRACT IV
Buildings A, B, C, D, E, G, H AND I of MEOPARK AT ADRIATICA OFFICE CONDOMINIUMS, a Condominium regime in the City of McKinney, Collin County, Texas, according to the Declaration filed for record on February 6, 2007 and recorded under County Clerks File Number 2007-172740 of the Real Properly Records of Collin County, Texas, together with an undivided percent interest in the General Common Elements as described in said Declaration, and together with the exclusive use of the limited common elements appurtenant to said unit and building, all as described in said Declaration.
TRACT V
Lots 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18 and 19, Block A, Lots 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17 and 18, Block B, Lots 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 and 11, Block C, Lots 1, 2, 3, 4, 5, 6 and 7, Block D and Lots 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14, Block E, of VILLA DISTRICTADRIATICA, an Addition to the City of McKinney, Collin County, Texas, according to the Revised Plat recorded in Volume 2006, Page 471, of the Map Records of Collin County, Texas.
LESS AND EXCEPT and tracts or parcels of land that have previously been released.
EXHIBIT A
All that certain tract of land situated in the Henry Johnson Survey, Abstract No, 482, C.R. Gray Survey, Abstract No. 343 and the J.A. Gray Survey, Abstract No. 344 in the City of McKinney, Collin County, Texas, being part of Tract 8A described in Special Warranty Deed from Stonebridge Ranch Development Corporation, a Delaware corporation to Westerra Stonebridge, L.P., a Delaware limited partnership, as filed for record under Clerks File No. 96-0106740 of the Land Records of Collin County, Texas being more particularly described by metes and bounds as follows:
Begin at a 1/2 inch capped iron rebar HUITT-ZOLLARS) found at the intersection of the South right-of-way line of Virginia Parkway, according to the Final Plat thereof as recorded in Cabinet G, Page 328, of the Plat Records of Collin County, Texas, and the East right-of-way line of Stonebridge Drive, according to the Final Plat thereof, recorded as Cabinet G, Page 331, of the Plat Records of Collin County, Texas;
THENCE in an southeasterly direction along said South right-of-way line of Virginia Parkway (120 feet wide) the following four (4) courses:
1) South 76 degrees 23 minutes 20 seconds East, a distance of 53.79 feet to a 1/2 inch capped iron rebar (Petsche & Assoc., Inc.) found at the point of curvature of a curve having a central angle of 22 degrees 09 minutes 28 seconds and a radius of 1810.00 feet;
2) along the arc of said curve to the left, a distance of 699.97 feet to a 1/2 inch capped iron rebar (Petsche & Assoc., Inc.) found at the point of tangency of said curve;
3) North 81 degrees 27 minutes 12 seconds East, a distance of, 838.25 feet to a 1/2 inch capped iron rebar (Petsche & Assoc., Inc.) found at the point of curvature of a curve having a central angle of 00 degrees 59 minutes 57 seconds and a radius of 2240.00 feet;
4) along the arc of said curve to the right, a distance of 39.06 feet to a 1/2 inch capped iron rebar (Petsche & Assoc., Inc.) found for corner;
THENCE South 07 degrees 32 minutes 49 seconds East, departing said South right-of-way line of Virginia Parkway, a distance of 375.65 feet to a 1/2 inch capped iron rebar (Petsche & Assoc., Inc.) found for corner;
THENCE South 65 degrees 28 minutes 25 seconds West, a distance of 292.46 feet to a 1/2 inch capped iron rebar (Petsche & Assoc., Inc. found for corner;
THENCE South 08 degrees 52 minutes 31 seconds East, a distance of 344.91 feet to a 1/2 inch capped iron rebar (Petsche & Assoc., Inc.) found for corner;
THENCE South 74 degrees 42 minutes 53 seconds East, a distance of 98.5 feet to a 1/2 inch capped iron rebar (Petsche & Assoc., Inc.) found for corner in the curving Northwesterly line of that certain tract or parcel of land known as Stonebridge Lake described in Special Warranty Deed from Ranch Development Company to Stonebridge Ranch Community Association, inc., a non-profit Texas corporation as filed for record in Volume 3063, Page 542, of the Land Records of Collin County, Texas, said corner being the beginning of a non-tangent curve having a central angle of 32 degrees 38 minutes 22 seconds, a radius of 217,66 feet, and from which a radial line bears South 74 degrees 42 minutes 33 seconds East;
THENCE generally in a Westerly direction along said Northwesterly line of Stonebridge Lake, the following thirteen (13) courses:
1) along the arc of said curve to the left, a distance of 123.99 feet to a 1/2 inch iron rebar found at the point of reverse curvature and the beginning of another curve having a central angle of 61 degrees 26 minutes 07 seconds and a radius of 175.00 feet,
2) along the arc of said curve to the right, a distance of 187.64 feet to a 1/2 inch capped iron rebar (Petsche & Assoc., Inc.) found for corner and from which a radial line bears North 45 degrees 54 minutes 48 seconds West;
3) South 41 degrees 12 minutes 12 seconds west, a distance of 222.16 feet to a 1/2 Inch capped iron rebar (Petsche & Assoc., Inc.) found at an angle point;
4) South 42 degrees 06 minutes 05 seconds West, a distance of 103.39 feet to a 1/2 inch capped iron rebar (Petsche & Assoc., Inc.) found at the point of curvature of a curve having a central angle of 25 degrees 18 minutes 24 seconds and a radius of 412.46 feet;
5) along the arc of said curve to the right, a distance of 182.18 feet to a 1/2 inch iron rebar found at the point of tangency of said curve;
6) South 67 degrees 24 minutes 29 seconds West, a distance of 157.33 feet to a 1/2 Inch capped iron rebar (Petsche & Assoc., Inc.) found at the point of curvature of a curve having a central angle of 62 degrees 46 minutes 49 seconds, a radius of 172.33 feet;
7) along the arc of said curve to the right, a distance of 188,82 feet to a 1/2 inch iron rebar (Petsche & Assoc., Inc.) found at the point of reverse curvature and the beginning of another curve having a central angle of 56 degrees 42 minutes 56 seconds and a radius of 72.29 feet;
8) along the arc of said curve to the left, a distance of 72.56 feet to a 1/2 inch capped iron rebar (Petsche & Assoc., Inc.) found at the point of reverse curvature and the beginning of another curve having a central angle of 61 degrees 35 minutes 40 seconds and a radius of 43.17 feet;
9) along the arc of said curve to the right, a distance of 46.41 feet to a 1/2 inch capped iron rebar (Petsche & Assoc., Inc.) found at the point of reverse curvature and the beginning of another curve having a central angle of 81 degrees 25 minutes 37 seconds and a radius of 97.42 feet;
10) along the arc of said curve to the left, a distance of 138.46 feet to a 1/2 inch capped iron rebar (Petsche & Assoc., Inc.) found at the point of reverse curvature and the beginning of another curve having a central angle of 61 degrees 32 minutes 19 seconds and a radius of 40.00 feet;
11) along the arc of said curve to the right, a distance of 42.96 feet to a 1/2 inch capped iron rebar (Petsche & Assoc., Inc.) found at the point of tangency of said curve;
12) North 64 degrees 49 minutes 16 seconds West, a distance of 99.75 feet to a 1/2 inch capped iron rebar (Petsche & Assoc., Inc.) found at the point of curvature of a curve having a central angle of 18 degrees 48 minutes 40 Seconds and a radius of 71.78 feet;
13) along the arc of said curve to the left, a distance of 23.57 feet to a 1/2 inch capped iron rebar (Petsche & Assoc., Inc.) found for corner;
THENCE North 06 degrees 22 minutes 04 seconds East, departing said Northwesterly line of Stonebridge Lake, a distance of 26.42 feet to a 1/2 inch capped iron rebar (Petsche & Assoc., Inc.) found for corner;
THENCE North 41 degrees 49 minutes 20 seconds West, a distance of 305.86 feet to a 1/2 inch capped iron rebar (Petsche & Assoc., Inc.) found for corner;
THENCE South 76 degrees 44 minutes 49 seconds West, a distance of 66.48 feet to a 1/2 inch capped iron rebar (Petsche & Assoc., Inc.) found for corner in the aforesaid East right-of-way line of Stonebridge Drive;
THENCE in a Northerly direction, along said East right-of-way line of Stonebridge Drive (140 feet wide), the following three (3) courses:
1) North 17 degrees 04 minutes 39 seconds West, a distance of 564.81 feet to a 1/2 inch iron rebar found at the point of curvature of a curve having a central angle of 30 degrees 41 minutes 19 seconds and a radius of 990.00 feet;
2) along the arc of said curve to the right, a distance of 530.26 feet to a 1/2 inch capped iron rebar (Petsche & Assoc., Inc.) at the point of tangency of said curve;
3) North 13 degrees 36 minutes 40 seconds East, a distance of 11.18 feet back to the POINT OF BEGINNING, containing 45.317 acres of land, more or less; SAVE AND EXCEPT that tract of land conveyed to Stonebridge Ranch Community Association, Inc. by deed recorded to Volume 5596, Page 5547, Land Records, Collin County, Texas.
LESS AND EXCEPT and tracts or parcels of land that have previously been released.
EXHIBIT 10.10
SECURITY AGREEMENT
(Collateral Transfer of Note and Liens)
IBG ADRIATICA HOLDINGS, INC., a Texas corporation
1600 Redbud Boulevard, Suite 400
McKinney, Texas 75069 (hereafter called Borrower) |
FIRST UNITED BANK AND TRUST COMPANY
1400 West Main Street
Durant, Oklahoma 74701 (hereafter called Lender) |
The Lender and Borrower agree as follows:
SECTION I. CREATION OF SECURITY INTEREST.
For value received and subject to the terms and warranties of this Security Agreement, in order to secure performance of the Obligations, Borrower grants to Lender a security interest in the Collateral Obligations, Collateral Security, Appurtenances and proceeds thereof (the Collateral), as defined in this Security Agreement. Lender is hereby designated as an additional insured or mortgagee and as an insured or beneficiary of any mortgagee title insurance insuring any of the Collateral Security.
SECTION II. DEFINITIONS.
1. Appurtenances means all proceeds of the Collateral and Borrowers interest as an insured under any insurance policies relating to the Collateral, including but not limited to fire and extended coverage or other hazard insurance on the Collateral Premises.
2. Collateral means the Collateral Obligations, Collateral Security, and Appurtenances.
3. Collateral Debtor means collectively SB HARBOR MARKET JOINT VENTURE, a Texas joint venture, B. KASTELLI, LLC, a Texas limited liability company, ADRIATICA COMMERCIAL ONE, LP, a Texas limited partnership and ADRIATICA RETAIL II, LP, a Texas limited partnership.
4. Collateral Deed of Trust means collectively: (i) a deed of trust executed by SB Harbor Market Joint Venture dated May 14, 2007 recorded under Document Number 20080912001101930 of the Official Public Records of Collin County, Texas; (ii) a deed of trust executed by SB Harbor Market Joint Venture dated April 5, 2005 recorded under Document Number 2005-0045659 of the Official Public Records of Collin County, Texas; (iii) a deed of trust executed by SB Harbor Market Joint Venture dated March 27, 2008 recorded under Document Number 20080402000391290 of the Official Public Records of Collin County, Texas; (iv) a deed of trust executed by SB Harbor Market Joint Venture dated August 15, 2006 recorded under Document Number 20060816001176770 of the Official Public Records of Collin County, Texas; (v) a deed of trust executed by SB Harbor Market Joint Venture dated August 15, 2006 recorded under Document Number 20060816001176780 of the Official Public Records of Co1lin County, Texas; (vi) a deed of trust executed by B. Kastelli, LLC dated January 12, 2007
recorded under Document Number 20070122000090300 of the Official Public Records of Collin County, Texas; (vii) a deed of trust executed by B. Kastelli, LLC dated January 12, 2007 recorded under Document Number 20070122000089930 of the Official Public Records of Collin County, Texas; (viii) a deed of trust executed by Adriatica Commercial One, LP dated November 17, 2005 recorded under Document Number 2005-0164916 of the Official Public Records of Collin County, Texas; (ix) deed of trust executed by Adriatica Commercial One, LP dated December 14, 2006 recorded under Document Number 20061220001789790 of the Official Public Records of Collin County, Texas; (x) a deed of trust executed by Adriatica Retail II, LP dated April 4, 2007 recorded under Document Number 20070419000526360 of the Official Public Records of Collin County, Texas; (xi) a deed of trust executed by SB Harbor Market Joint Venture dated January 14, 2010 recorded under Document Number 20100120000060460 of the Official Public Records of Collin County, Texas and; (xii) a deed of trust executed by Adriatica Commercial One, LP, Adriatica Retail II, LP, SB Harbor Market Joint Venture and Blackard Pirates Galveston Development, LP dated April 1, 2011 recorded under Document Number 20110420000407880 in the Official Public Records of Collin County, Texas, and all renewals, extensions, and modifications of the Collateral Deed of Trust.
5. Collateral Note means collectively: (0 that certain promissory note in the original principal sum of $6,975,000.00 executed by SB Harbor Market Joint Venture and payable to the order of Lender; (ii) that certain promissory note in the original principal sum of $6,500,000.00 executed by SB Harbor Market Joint Venture and payable to the order of Lender; (iii) that certain promissory note in the original principal sum of $925,985.00 executed by SB Harbor Market Joint Venture and payable to the order of Lender; (iv) that certain promissory note in the original principal sum of $2,141,790.00 executed by SB Harbor Market Joint Venture and payable to the order of Lender; (v) that certain promissory note in the original principal sum of $437,600.00 executed by B. Kastelli, LLC and payable to the order of Lender; (vi) that certain promissory note in the original principal sum of $450,221.00 executed by B. Kastelli, LLC and payable to the order of Lender; (vii) that certain promissory note in the original principal sum of $4,356,000.00 executed by Adriatica Commercial One, LP and payable to the order of Lender; (viii) that certain promissory note in the original principal sum of $250,000.00 executed by Adriatica Commercial One, LP and payable to the order of Lender; (ix) that certain promissory note in the original principal sum of $3,147,718.00 executed Adriatica Retail II, LP and payable to the order of Lender; (x) that certain promissory note in the original principal sum of $130,000.00 executed by SB Harbor Market Joint Venture and payable to the order of Lender and; (xi) that certain promissory note in the original principal sum of $400,000.00 executed by SB Harbor Market Joint Venture and payable to the order of Lender, and all renewals, extensions, and modifications thereof which have all previously been transferred and assigned to Borrower and collaterally endorsed by Borrower to the order of Lender.
6. Collateral Obligations means the indebtedness evidenced by the Collateral Note and all renewals, extensions, and modifications of such indebtedness;
7. Collateral Premises means the property encumbered by the Collateral Deed of Trust described in Exhibit A attached hereto and made a part hereof for all purposes.
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8. Collateral Security means all liens, superior titles, securities interests, guaranties, obligations, and other interests securing the payment of the Collateral Obligations, including but not limited to the following:
a. any vendors lien and superior title retained in the warranty deed conveying the Collateral Premises to Collateral Debtor, as grantee, and
b. The deed to secure debt lien and security interest granted by the Collateral Deed of Trust.
9. Event of Default means the occurrence of any of the following:
a. Default in the timely payment of any installment of principal and interest under any of the Obligations or in the performance of any covenant or provision of the Loan Documents.
b. Borrower, or any Guarantor, shall: (a) execute an assignment for the benefit of creditors or take any action in furtherance thereof; or (b) admit in writing his inability to pay his debts generally as they become due; or (c) as a debtor, file a petition, case, proceeding, or other action pursuant to, or voluntarily seek the benefit or benefits of any debtor relief law or take any action in furtherance thereof, or (d) seek, acquiesce in, or suffer the appointment of a receiver, trustee, or custodian of Borrower, any Guarantor, the Collateral, in whole or in part, or any significant portion of other property belonging to Borrower or any Guarantor that affects performance under the Obligations; or (e) voluntarily become a party to any proceeding seeking to effect a suspension or having the effect of suspending any of the rights of Lender or the Trustee granted or referred to in the Loan Documents or take any action in furtherance thereof.
c. The filing of a petition, case, proceeding, or other action against Borrower, or any Guarantor, as a debtor under any debtor relief law; or seeking appointment of a receiver, trustee, or custodian of Borrower, or any Guarantor, or of any property described in the Loan Documents or any part thereof, or of any significant portion of other property belonging to Borrower or any Guarantor, that affects its ability to perform under the Obligations, or seeking to effect a suspension or having the effect of suspending any of the rights of Lender or the Trustee granted or referred to in the Loan Documents, and: (a) Borrower or any Guarantor admits, acquiesces in, or fails to contest the material allegations thereof; or (b) the petition, case, proceeding, or other action results in entry of an order for relief or order granting the relief sought against Borrower or any Guarantor; or (c) the petition, case, proceeding, or other action is not permanently dismissed on or before the earliest of trial thereon or sixty (60) days next following the date of its filing.
d. The discovery by Lender that any warranty, covenant, or representation made to Lender by or on behalf of Borrower or any Guarantor is false, misleading, erroneous, or breached in any material respect.
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e. A default shall not be an Event of Default, if a monetary default is cured within ten (10) days and a non-monetary default is cured within thirty (30) days following the delivery of or the mailing of written notice from Lender to Borrowers most current address as reflected in Lenders business records specifying the existence of any such default. If such default is not cured within the applicable period, the default shall be an Event of Default without need of any further notice or action by Lender. Notwithstanding the foregoing, if a non-monetary default is not capable of being cured within the thirty (30) day period referenced herein, it shall not be considered an Event of Default so long as Borrower is using diligent efforts to cure said non-monetary default.
10. Guarantor means any person or entity who guarantees repayment of the Obligation.
11. Loan Documents means the Note, this Security Agreement, and any other documents executed in connection with any indebtedness owed by Borrower to Lender and the security therefor.
12. Obligations means the obligations referred to in Section III of this Security Agreement.
13. Security Agreement means this Security Agreement and all modifications to it.
SECTION III. OBLIGATIONS SECURED
1. The following obligations (the Obligations) are secured by this Security Agreement:
a. The promissory note in the original principal amount of $12,187,500.00, executed by Borrower, dated June 28 2011, and payable to the order of Lender, together with all renewals, extensions, and modifications thereof (the Note).
b. All funds advanced after the date of this Security Agreement by Lender for the protection of its security interest, for collection of any indebtedness owed by Borrower to Lender, in the review of or participation in any collection or foreclosure proceedings on the Collateral or on the Collateral Obligations or on the Collateral Security or in the preparation and negotiation of Loan Documents, together with all renewals, extensions, and modifications thereof. Sums so advanced will bear interest from the date of each advancement at the highest lawful contractual rate per annum applicable to Borrower (or at such lesser rate specified in any note executed in connection with the sum advanced) and will be paid by Borrower on demand (or at such time as is specified in any note executed in connection with the sum advanced) at the same place that any Obligation is payable.
c. All other indebtedness and liabilities of all kinds of Borrower to Lender, whether evidenced by a promissory note or by other evidence of indebtedness, including overdrafts, whether created directly or acquired by Lender indirectly by assignment or otherwise, and whether now existing or hereafter arising, absolute or contingent, joint and/or several, due or to become due, primary or secondary, including obligations of performance, and all renewals, extensions and rearrangements thereof.
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SECTION IV. BORROWERS REPRESENTATIONS AND WARRANTIES.
Borrower Represents and Warrants to Lender That:
1. If other than a natural person, Borrower is duly organized and existing under the laws of the State of Texas and is duly qualified and in good standing in every other State in which it is doing business; and the execution, delivery and performance of this Agreement and the Obligations secured hereby are within Borrowers powers, have been duly authorized, and are not in contravention of law or the terms of Borrowers organizational documents, bylaws or other operating regulations or of any indenture, agreement or undertaking to which Borrower is a party or by which it is bound:
2. Borrower is the current legal owner and holder of the Collateral Note and the lien or liens securing its payment and has the right to assign such lien or liens to Lender and grant to Lender a security interest in the Collateral Note;
3. There is no lien, security interest or other encumbrance on, or any restriction on the transferability of, the Collateral Note at the time of execution of this Agreement;
4. The Collateral Note is genuine and free from any adverse claims or other security interest, default, prepayment or defenses, and complies with applicable laws concerning form, content, manner or preparation and execution, and all persons appearing to be obligated thereon have authority and capacity to contract and are bound thereon as they appear to be from the face thereof;
5. Borrowers principal place of business is the address shown at the beginning of this Agreement:
6. All financial statements delivered to Lender at or prior to the execution of this Agreement, and all financial statements which may hereafter be delivered to Lender, fairly present the financial condition and the results of Borrowers operations at the time and for the periods therein stated, and since the latest date covered by the most recent financial statements delivered prior to the execution of this Agreement there has been no adverse change in the financial condition, the operations or any other status of Borrower: and
7. All information furnished or to be furnished Lender by or on behalf of Borrower in connection with the Obligations secured by this Agreement or the Collateral Note is (or will be at the time the same is furnished) complete and accurate in all respects.
8. No Defense or offset to the payment of the Collateral Obligations exists and that the Collateral Note is fully negotiable.
SECTION V. PAYMENT ON COLLATERAL NOTE.
Prior to the occurrence of an Event of Default, Borrower will receive payments made on the Collateral Note by the maker or makers thereof or by any others directly or indirectly liable on the Collateral Note.
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Following the occurrence of an Event of Default: (i) Borrower shall immediately deliver to Lender any and all payments on the Collateral Note which are paid to Borrower; (ii) Borrower shall, at Borrowers sole cost and expense, take all reasonable and appropriate steps when necessary to enforce the collection of any and all payments due on the Collateral Note and shall be responsible for the preservation of the Collateral Note and the lien or liens securing it; (iii) If Lender so requests, Borrower shall, at Borrowers own expense, notify all those liable on the Collateral Note that they are to make their payments directly to Lender; (iv) Lender may at any time (although Lender may under no circumstances be held liable for failure to do so) notify all those liable for payment on the Collateral Note that they are to make their payments directly to Lender; (v) Lender may enforce collection of the Collateral Note by any appropriate means it deems necessary, however, Lender will be under no obligation to undertake any such collection and; (vi) In the event Lender elects to bring suit on the Collateral Note, Borrower agrees that Lender may bring such suit in Borrowers name. Lender may release or compromise with anyone liable on the Collateral Note without affecting the liability of any maker, endorser or guarantor of any of the Obligations.
Each maker, guarantor or endorser of any of the Obligations hereby waives notice of any of the foregoing actions and waives presentment, protest, notice of dishonor, and any notice or any other formality. Any payments on the Collateral Note which are received by Lender shall, at Lenders option, be applied by it against the Obligations (whether or not then due and owing) or be placed by Lender in a special account not subject to withdrawal by Borrower but rather to be held in such account and applied by Lender against the Obligations at such time as it may see fit.
SECTION VI. BORROWERS AFFIRMATIVE COVENANTS.
Borrower Covenants and Agrees That Borrower Shall:
1. Within 24 hours of notice of such fact, deliver to Lender additional collateral satisfactory to Lender to reduce Borrowers Obligations to the extent required by Lender if the latter, in its sole discretion, determines that the Collateral Note has materially decreased in value or Lender otherwise deems itself insecure. The call for additional collateral may be oral, by telegram, or United States mail addressed to Borrower and shall not affect any subsequent right of Lender to exercise the same;
2. Pay promptly when due (unless they are being contested in good faith) all taxes, assessments, costs and expenses necessary to preserve, protect, maintain and collect the Collateral Note; keep the Collateral Note free from other liens, security interests or other encumbrances; defend the Collateral Note if necessary against all claims and demands of all persons at any time claiming an interest therein adverse to Lender; file all tax returns and pay all taxes when due and cause any liens for taxes to be properly released; and in the event of failure to do so, Borrower agrees that Lender may make expenditures for any or all such purpose (but is not obligated to do so), and the amount so expended together with interest thereon at the highest lawful rate which may be charged of Borrower by Lender shall constitute one of Borrowers Obligations to Lender secured by the security interest granted in Section 1 above, and any such expenditure by Lender will be repayable by Borrower on demand. Borrower hereby appoints Lender Borrowers attorney-in-fact to enable Lender to act for borrower in fulfilling all of Borrowers responsibilities and exercising all of Borrowers rights under this Agreement for the purpose of preserving and protecting the Collateral Note and Lenders security interest therein;
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3. Without hindrance or delay, furnish such reports, data and financial statements, including audits by independent public accountants, in respect of Borrowers business and financial condition, as Lender may reasonably require;
4. Pay all costs of filing this Agreement in the real property records of the county or counties wherein may be located any part of the real estate covered by the lien or liens securing the payment of the Collateral Note. In addition, if Lender deems it necessary, Borrower shall join with Lender in executing a financing statement, notice, affidavit, or any similar instruments which Lender deems necessary or advisable to establish or maintain its security interest in the Collateral Note in form satisfactory to Lender together with such other instruments as Lender may from time to time request, and pay all costs of filing same in any public office or offices deemed advisable by Lender;
5. Borrower will preserve the liability of Collateral Debtors on the Collateral. Borrower will inform Lender immediately of any default in payment or performance of any Collateral. Borrower will preserve the priority of the Collateral Security, and Borrower will timely pay any indebtedness secured by a lien superior to the Collateral Deed of Trust lien;
6. Borrower will immediately deliver to Lender all Collateral in Borrowers possession. All instruments evidencing the Collateral Obligations will be endorsed to the order of Lender with recourse on Borrower, and all Collateral Security will be transferred and assigned by appropriate recordable instruments; and
7. Borrower will execute and deliver any instruments and will do any acts that Lender believes are desirable to carry out the purposes of this Security Agreement.
SECTION VII. BORROWERS NEGATIVE COVENANTS.
Borrower Covenants and Agrees That Without Prior Written Authorization From Lender, Borrower Shall Not:
1. Change Borrowers principal place of business to an address different from that shown at the beginning of this Agreement;
2. Sell, assign, exchange, encumber, pledge or otherwise dispose of the Collateral Note or any of Borrowers rights therein or under this Agreement;
3. Assert any claims or defenses Borrower may have against Lender against Lenders assignee, it being understood that Lender may further assign the liens securing the Collateral Note and its security interest in the Collateral Note to an assignee who will be entitled to all of the rights, privileges, and remedies granted in this Agreement to Lender; or
4. Renew, extend, or modify the Collateral Note and Collateral Security or grant complete or partial releases of the same without the prior written consent of Lender. Borrower agrees not to permit a prepayment of the Collateral Note without causing the prepayment to be applied to the Collateral Obligations.
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SECTION VIII. PROCEEDS FROM FORECLOSURE.
No foreclosure of the Collateral or acceptance of the Collateral Premises in Lieu of Foreclosure (collectively a Repossession) shall be undertaken without the prior written notice of Lender by Borrower of such action.
Borrower agrees that its interest in the proceeds from any foreclosure sale, deed in lieu of foreclosure, or settlement with the Collateral Debtors will be subordinate and inferior to Lenders right to prior and complete payment of the Obligations, and Borrowers interest in the Collateral Security acquired in any foreclosure sale will be encumbered by the lien and security interest granted Lender by this Security Agreement, and such proceeds shall be immediately delivered to Lender.
Contemporaneously with any Repossession, Borrower shall deliver to Lender a properly executed deed of trust in substantially the form of Exhibit B attached hereto and made a part hereof for all purposes, and pay all costs related to the recordation, together with any expense related to the issuance of a title insurance policy insuring the lien of the deed of trust in the event the current title policy or policies do not provide acceptable title insurance coverage of the deed of trust.
SECTION IX. LENDERS RIGHTS IN EVENT OF DEFAULT.
1. Upon the occurrence of any Event of Default, and at any time thereafter, Lender may, without notice to or demand upon Borrower (Borrower hereby expressly waiving all notices, demands, for payment, presentations for payment, notices of intention to accelerate the maturity and actual acceleration of maturity, protest and notice of protest as to the Obligations), exercise the right to declare all Obligations secured by the security interest created herein to be immediately due and payable in which case Lender will have all rights and remedies as a secured party granted by law and particularly by the Texas Business and Commerce Code.
2. Lender will send Borrower reasonable notice of the time and place of any public sale or of the time after which any private sale or other disposition of the Collateral Note is to be made. This requirement of sending reasonable notice will be met if such notice is mailed, postage prepaid, to Borrower at the address designated at the beginning of this Agreement at least ten days before the time of sale or other disposition. Lender shall transfer to the purchaser at such sale the Collateral Note together with the lien or liens securing the payment of the Collateral Note.
3. In addition to the expense of preparing for and holding such sale, Lender will be entitled to recover reasonable attorneys fees and legal expenses as provided for in this Agreement and in the writings evidencing the Obligations before applying the balance of the proceeds from such sale or other disposition toward the satisfaction of the Obligations themselves. Borrower will remain liable for any deficiency remaining after the sale or other disposition.
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4. Lender will have the right immediately and without further action by it to set-off against the Obligations all money owed by Lender in any capacity to Borrower, whether or not due, and Lender will be deemed to have exercised such right of set-off and to have made a charge against any such money at the time of an acceleration upon default even though such charge is made or entered on Lenders books subsequent thereto.
5. No act, delay, omission, or course of dealing between Borrower and Lender including Lenders remedying of any Event of Default hereunder will constitute a waiver of any of Lenders rights or remedies under this Agreement. A waiver by Lender of any rights or remedies under the terms of this Agreement with respect to any of Borrowers Obligations to Lender will not be a bar to the exercise of any right or remedy on any subsequent occasion.
6. All rights and remedies of Lender hereunder are cumulative and may be exercised singly or concurrently, and the exercise of any one or more of them will not be a waiver of any other. It is expressly agreed and understood that Lenders right to exercise its rights and remedies under the Texas Business and Commerce Code is not conditioned upon acceleration of the maturity of the underlying Obligations, but only upon Borrowers default as defined above, notwithstanding anything herein to the contrary. Lender shall not be limited by an election of remedies if it chooses to judicially foreclose its security interest. The right to sell under the terms hereof shall exist cumulative with said judicial foreclosure and one method so resorted to shall not bar the other, but both may be exercised at the same or different times, nor shall one be a defense to the other. No waiver, change, modification or discharge of any of Lenders rights or Borrowers duties as so specified or allowed will be effective unless contained in a written instrument signed by Lender specifying such waiver, change, modification or discharge.
SECTION X. PARTIAL RELEASE.
It is further agreed that Borrower shall have the privilege, while not in default under the terms of the Note or any of the Obligations, of, from time to time, obtaining Releases of the security interest created pursuant to this Agreement from Lender on individual tracts of the Collateral Premises which may be sold from time to time. Each tract shall be released upon payment to Lender of: (i) ninety percent (90%) of the Net Sales Proceeds of each tract; or (ii) the amount specified in the addendum attached as Exhibit C, whichever is greater. Net Sales Proceeds shall mean the gross proceeds payable in connection with the sale of a lot after deducting normal and customary closing expenses of a seller, but only to the extent such expenses are actually paid.
SECTION XI. MISCELLANEOUS.
1. This Agreement and the security interest in the Collateral Note herein created will terminate when all Obligations secured hereby have been paid in full. At such time, Lender shall, upon Borrowers request and at Borrowers expense, reassign (without warranty or recourse) to Borrower the lien or liens securing payment of the Collateral Note.
2. The provisions of this Agreement are in addition to those contained in any writings evidencing the Obligations secured hereby, all of which will be construed as one instrument. In addition to the amounts provided for in said writings agreed to be paid by Borrower as
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reimbursement for Lenders attorneys fees and legal expenses in the event of default, Borrower also agrees to pay Lenders reasonable attorneys fees in enforcing and carrying out the covenants, terms, and conditions contained in this Agreement including Lenders right to undertake the collection of the Collateral Note as above provided. As used in this Agreement, attorneys fees shall be defined as the reasonable value of the services of the attorneys employed by Lender from time to time to commence, defend or intervene in any court proceeding, or to file a petition, answer, motion or other pleadings, or to take any action in or with respect to any suit or proceeding (bankruptcy or otherwise) relating to the Collateral Note, this Agreement, or the Obligations, or to protect, collect, sell, take possession of, or liquidate the Collateral Note or to attempt to enforce any security interest in the Collateral Note. Said attorneys fees, and any legal expenses, costs and charges relating thereto, shall be additional Obligations of Borrower, payable on demand and secured by the Collateral Note.
3. Any notice under this Agreement shall be in writing and shall be effective when actually delivered or, if mailed, shall be deemed effective when deposited in the United States mail first class, certified mail, postage prepaid, directed to the addresses shown near the beginning of this Agreement. Any party may change its address for notices under this Agreement by giving formal written notice to the other parties, specifying that the purpose of the notice is to change the partys address. For notice purposes, Borrower agrees to keep Lender informed at all times of Borrowers current address.
4. The term Borrower as used in this Agreement will be construed as singular or plural to correspond with the number of persons executing this Agreement as Borrower. If more than one person executes this Agreement as Borrower, his, her, their or its duties and liabilities under this Agreement will be joint and several. The terms Lender and Borrower as used in this Agreement include the heirs, executors, and administrators, successors, representatives, receivers, trustees, and assigns of those parties.
5. Borrower as Debtor and Lender as Secured Party together with other words or phrases contained in this instrument which are defined in the Texas Business and Commerce Code, will be controlled by the Code definitions as to the meaning of such words or phrases. A determination that any provision contained herein is unenforceable will have no effect on the validity of the remaining provisions.
6. The law governing this transaction will be that of the State of Texas in force on the date of execution of this Agreement. The obligations contained in this Agreement are performable in Collin County, Texas.
7. Borrower waives the right to direct the application of any and all payments at any time or times hereafter received by Lender from Borrower, and Borrower hereby agrees that Lender shall have the continuing exclusive right to apply and reapply any and all payments received at any time or times hereafter against the Obligations in such manner as Lender may deem advisable.
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8. Borrower agrees that a carbon, photographic or other reproduction of this Agreement or Financing Statement may be filed as an original.
EXECUTED effective the 28 th day of June, 2011.
LENDER: | BORROWER: | |||||
FIRST UNITED BANK AND TRUST COMPANY |
IBG ADRIATICA HOLDINGS, INC., a Texas corporation |
|||||
BY: | /s/ BERT DAVISON | BY: | /s/ DAVID R. BROOKS | |||
NAME: | Bert Davison | DAVID R. BROOKS, President | ||||
TITLE: | Sr. VP |
STATE OF TEXAS
COUNTY OF COLLIN
This instrument was acknowledged before me on the 28 day of June, 2011, by Bert Davison, SR VP of FIRST UNITED BANK AND TRUST COMPANY, a banking association, on behalf of said association.
/s/ DEBBIE BOYD |
NOTARY PUBLIC - STATE OF STATE OF TEXAS |
COUNTY OF COLLIN |
This instrument was acknowledged before me on the 28 day of June, 2011, by DAVID R. BROOKS, President of IBG ADRIATICA HOLDINGS, INC., a Texas corporation, on behalf of said corporation.
NOTARY PUBLIC-STATE OF TEXAS |
/s/ DEBBIE BOYD |
NOTARY PUBLIC - STATE OF STATE OF TEXAS |
COUNTY OF COLLIN |
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AFTER RECORDING RETURN TO:
First United Bank and Trust Company Attention: Loan Administration/Derek Crouse 1400 West Main Street Durant, Oklahoma 74701 |
PREPARED IN THE LAW OFFICES OF:
William David Keese, P.C. 1400 West Main Street Durant, Oklahoma 74701 |
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EXHIBIT A
TRACT I
Lot 2, Block B and the Common Area B-1 of ADRIATICA, BLOCK B, LOTS 1R & 2, an Addition to the City of McKinney, Collin County, Texas, according to the Revised Plat recorded In Volume 2006, Page 130, of the Map Records of Collin County, Texas.
TRACT II
Lot 2, Block C of ADRIATICA, a Croatian Village at Stonebridge Ranch, an Addition to the City of McKinney, Collin County, Texas, according to the Revised Plat recorded In Cabinet Q, Page 597, of the Map Records of Collin County, Texas.
TRACT III
Lot 1R, Block A of ADRIATICA, a Croatian Village at Stonebridge Ranch, an Addition to the City of McKinney, Collin County, Texas, according to the Revised Plat recorded in Cabinet Q, Page 607, of the Map Records of Collin County, Texas.
TRACT IV
Buildings A, B, C, D, E, G, H AND I of MEOPARK AT ADRIATICA OFFICE CONDOMINIUMS, a Condominium regime in the City of McKinney, Collin County, Texas, according to the Declaration filed for record on February 6, 2007 and recorded under County Clerks File Number 2007-172740 of the Real Properly Records of Collin County, Texas, together with an undivided percent interest in the General Common Elements as described in said Declaration, and together with the exclusive use of the limited common elements appurtenant to said unit and building, all as described in said Declaration.
TRACT V
Lots 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18 and 19, Block A, Lots 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17 and 18, Block B, Lots 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 and 11, Block C, Lots 1, 2, 3, 4, 5, 6 and 7, Block D and Lots 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14, Block E, of VILLA DISTRICTADRIATICA, an Addition to the City of McKinney, Collin County, Texas, according to the Revised Plat recorded in Volume 2006, Page 471, of the Map Records of Collin County, Texas.
LESS AND EXCEPT and tracts or parcels of land that have previously been released.
EXHIBIT A
All that certain tract of land situated in the Henry Johnson Survey, Abstract No, 482, C.R. Gray Survey, Abstract No. 343 and the J.A. Gray Survey, Abstract No. 344 in the City of McKinney, Collin County, Texas, being part of Tract 8A described in Special Warranty Deed from Stonebridge Ranch Development Corporation, a Delaware corporation to Westerra Stonebridge, L.P., a Delaware limited partnership, as filed for record under Clerks File No. 96-0106740 of the Land Records of Collin County, Texas being more particularly described by metes and bounds as follows:
Begin at a 1/2 inch capped iron rebar HUITT-ZOLLARS) found at the intersection of the South right-of-way line of Virginia Parkway, according to the Final Plat thereof as recorded in Cabinet G, Page 328, of the Plat Records of Collin County, Texas, and the East right-of-way line of Stonebridge Drive, according to the Final Plat thereof, recorded as Cabinet G, Page 331, of the Plat Records of Collin County, Texas;
THENCE in an southeasterly direction along said South right-of-way line of Virginia Parkway (120 feet wide) the following four (4) courses:
1) South 76 degrees 23 minutes 20 seconds East, a distance of 53.79 feet to a 1/2 inch capped iron rebar (Petsche & Assoc., Inc.) found at the point of curvature of a curve having a central angle of 22 degrees 09 minutes 28 seconds and a radius of 1810.00 feet;
2) along the arc of said curve to the left, a distance of 699.97 feet to a 1/2 inch capped iron rebar (Petsche & Assoc., Inc.) found at the point of tangency of said curve;
3) North 81 degrees 27 minutes 12 seconds East, a distance of, 838.25 feet to a 1/2 inch capped iron rebar (Petsche & Assoc., Inc.) found at the point of curvature of a curve having a central angle of 00 degrees 59 minutes 57 seconds and a radius of 2240.00 feet;
4) along the arc of said curve to the right, a distance of 39.06 feet to a 1/2 inch capped iron rebar (Petsche & Assoc., Inc.) found for corner;
THENCE South 07 degrees 32 minutes 49 seconds East, departing said South right-of-way line of Virginia Parkway, a distance of 375.65 feet to a 1/2 inch capped iron rebar (Petsche & Assoc., Inc.) found for corner;
THENCE South 65 degrees 28 minutes 25 seconds West, a distance of 292.46 feet to a 1/2 inch capped iron rebar (Petsche & Assoc., Inc. found for corner;
THENCE South 08 degrees 52 minutes 31 seconds East, a distance of 344.91 feet to a 1/2 inch capped iron rebar (Petsche & Assoc., Inc.) found for corner;
THENCE South 74 degrees 42 minutes 53 seconds East, a distance of 98.5 feet to a 1/2 inch capped iron rebar (Petsche & Assoc., Inc.) found for corner in the curving Northwesterly line of that certain tract or parcel of land known as Stonebridge Lake described in Special Warranty Deed from Ranch Development Company to Stonebridge Ranch Community Association, Inc., a non-profit Texas corporation as filed for record in Volume 3063, Page 542, of the Land Records of Collin County, Texas, said corner being the beginning of a non-tangent curve having a central angle of 32 degrees 38 minutes 22 seconds, a radius of 217,66 feet, and from which a radial line bears South 74 degrees 42 minutes 33 seconds East;
THENCE generally in a Westerly direction along said Northwesterly line of Stonebridge Lake, the following thirteen (13) courses:
1) along the arc of said curve to the left, a distance of 123.99 feet to a 1/2 inch iron rebar found at the point of reverse curvature and the beginning of another curve having a central angle of 61 degrees 26 minutes 07 seconds and a radius of 175.00 feet,
2) along the arc of said curve to the right, a distance of 187.64 feet to a 1/2 inch capped iron rebar (Petsche & Assoc., Inc.) found for corner and from which a radial line bears North 45 degrees 54 minutes 48 seconds West;
3) South 41 degrees 12 minutes 12 seconds west, a distance of 222.16 feet to a 1/2 Inch capped iron rebar (Petsche & Assoc., Inc.) found at an angle point;
4) South 42 degrees 06 minutes 05 seconds West, a distance of 103.39 feet to a 1/2 inch capped iron rebar (Petsche & Assoc., Inc.) found at the point of curvature of a curve having a central angle of 25 degrees 18 minutes 24 seconds and a radius of 412.46 feet;
5) along the arc of said curve to the right, a distance of 182.18 feet to a 1/2 inch iron rebar found at the point of tangency of said curve;
6) South 67 degrees 24 minutes 29 seconds West, a distance of 157.33 feet to a 1/2 Inch capped iron rebar (Petsche & Assoc., Inc.) found at the point of curvature of a curve having a central angle of 62 degrees 46 minutes 49 seconds, a radius of 172.33 feet;
7) along the arc of said curve to the right, a distance of 188,82 feet to a 1/2 inch iron rebar (Petsche & Assoc., Inc.) found at the point of reverse curvature and the beginning of another curve having a central angle of 56 degrees 42 minutes 56 seconds and a radius of 72.29 feet;
8) along the arc of said curve to the left, a distance of 72.56 feet to a 1/2 inch capped iron rebar (Petsche & Assoc., Inc.) found at the point of reverse curvature and the beginning of another curve having a central angle of 61 degrees 35 minutes 40 seconds and a radius of 43.17 feet;
9) along the arc of said curve to the right, a distance of 46.41 feet to a 1/2 inch capped iron rebar (Petsche & Assoc., Inc.) found at the point of reverse curvature and the beginning of another curve having a central angle of 81 degrees 25 minutes 37 seconds and a radius of 97.42 feet;
10) along the arc of said curve to the left, a distance of 138.46 feet to a 1/2 inch capped iron rebar (Petsche & Assoc., Inc.) found at the point of reverse curvature and the beginning of another curve having a central angle of 61 degrees 32 minutes 19 seconds and a radius of 40.00 feet;
11) along the arc of said curve to the right, a distance of 42.96 feet to a 1/2 inch capped iron rebar (Petsche & Assoc., Inc.) found at the point of tangency of said curve;
12) North 64 degrees 49 minutes 16 seconds West, a distance of 99.75 feet to a 1/2 inch capped iron rebar (Petsche & Assoc., Inc.) found at the point of curvature of a curve having a central angle of 18 degrees 48 minutes 40 Seconds and a radius of 71.78 feet;
13) along the arc of said curve to the left, a distance of 23.57 feet to a 1/2 inch capped iron rebar (Petsche & Assoc., Inc.) found for corner;
THENCE North 06 degrees 22 minutes 04 seconds East, departing said Northwesterly line of Stonebridge Lake, a distance of 26.42 feet to a 1/2 inch capped iron rebar (Petsche & Assoc., Inc.) found for corner;
THENCE North 41 degrees 49 minutes 20 seconds West, a distance of 305.86 feet to a 1/2 inch capped iron rebar (Petsche & Assoc., Inc.) found for corner;
THENCE South 76 degrees 44 minutes 49 seconds West, a distance of 66.48 feet to a 1/2 inch capped iron rebar (Petsche & Assoc., Inc.) found for corner in the aforesaid East right-of-way line of Stonebridge Drive;
THENCE in a Northerly direction, along said East right-of-way line of Stonebridge Drive (140 feet wide), the following three (3) courses:
1) North 17 degrees 04 minutes 39 seconds West, a distance of 564.81 feet to a 1/2 inch iron rebar found at the point of curvature of a curve having a central angle of 30 degrees 41 minutes 19 seconds and a radius of 990.00 feet;
2) along the arc of said curve to the right, a distance of 530.26 feet to a 1/2 inch capped iron rebar (Petsche & Assoc., Inc.) at the point of tangency of said curve;
3) North 13 degrees 36 minutes 40 seconds East, a distance of 11.18 feet back to the POINT OF BEGINNING, containing 45.317 acres of land, more or less; SAVE AND EXCEPT that tract of land conveyed to Stonebridge Ranch Community Association, Inc. by deed recorded to Volume 5596, Page 5547, Land Records, Collin County, Texas.
LESS AND EXCEPT and tracts or parcels of land that have previously been released.
EXHIBIT A
Being all of MEDPARK AT ADRIATICA OFFICE CONDOMINIUMS, a Condominium regime in the City of McKinney, Collin County, Texas, according to the Declaration filed for record on February 6, 2007, and recorded under Clerks File No, 2007-172740, Real Property Records, Collin County, Texas, together with. an undivided percent interest in the General Common Elements as described in said Declaration, and together with the exclusive use of the limited common elements appurtenant to said unit and building, all as described in said Declaration.
SAVE AND EXCEPT Building F, of Medpark at Adriatica Office Condominiums as shown in Condominium Special Warranty Deed executed by SB Harbor Market Joint Venture, a Texas joint venture to M & JSB, LP, a Texas limited partnership, dated February 16, 2007, filed for record on February 20, 2007 and recorded under Document No. 20070220000229600, Real Property Records, Collin County, Texas.
Said Condominium formally known as Lot 1R, Block B of Adriatica, Block B, Lots 1R and 2, an addition to the City of McKinney, Collin County, Texas, according to the Minor Replat thereof recorded in Volume 2006, Page 130 of the Map Records of Collin County, Texas.
EXHIBIT B
COMMERCIAL DEED OF TRUST, SECURITY AGREEMENT
FINANCING STATEMENT AND ASSIGNMENT OF RENTS
NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION FROM ANY INSTRUMENT THAT TRANSFERS AN INTEREST IN REAL PROPERTY BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVERS LICENSE NUMBER.
IBG ADRIATICA HOLDINGS, INC., a Texas corporation
1600 Redbud Boulevard, Suite 400
McKinney, Texas 75069 (hereafter called Borrower) |
FIRST UNITED BANK AND TRUST COMPANY
1400 West Main Street
Durant, Oklahoma 74701 (hereafter called Beneficiary) |
CONVEYANCE AND GRANT . For valuable consideration, Borrower conveys to GREG MASSEY , Trustee, in trust with power of sale, for the benefit of Beneficiary, the following described real property, together with all existing or subsequently erected or affixed buildings, Improvements and Fixtures; and all easements, rights of way, and appurtenances; all water and water rights; and all other rights, royalties, and profits relating to the real property, including without limitation such rights as Borrower may have in all minerals, oil, gas, geothermal and similar matters, located in Collin County, Texas (the Real Property):
Being all those certain tracts or parcels of land situated in Collin County, Texas, more fully described in Exhibit A attached hereto and made a part hereof for all purposes.
SUBJECT TO all conditions, covenants, restrictions, reservations and easements that appear of record.
Borrower hereby absolutely assigns to Beneficiary all of Borrowers right, title, and interest in and to all present and future leases of the Property and all Rents from the Property. In addition, Borrower grants Beneficiary a Uniform Commercial Code security interest in the Rents and the Personal Property defined below.
DEFINITIONS . The following words shall have the following meanings when used in this Deed of Trust. Terms not otherwise defined in this Deed of Trust shall have the meanings attributed to such terms in the Texas Uniform Commercial Code. All references to dollar amounts shall mean amounts in lawful money of the United States of America.
Deed of Trust . The words Deed of Trust mean this Commercial Deed of Trust, Security Agreement, Financing Statement and Assignment of Rents, among Borrower, Beneficiary, and Trustee, and includes without limitation all assignment and security interest provisions relating to the Personal Property and Rents.
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Fixtures . The word Fixtures means all building material, machinery, apparatus, equipment, fittings, fixtures and personal property of every kind and nature whatsoever, now in, part of, affixed to, delivered to or used in connection with the buildings and improvements on the Real Property, or hereafter acquired by the Borrower and hereafter placed in, affixed to, delivered to or used in connection which such buildings and improvements or any buildings hereinafter constructed or placed upon the Real Property or any part thereof, including, but without limiting the generality of the foregoing, all engines, furnaces, boilers, stokers, pumps, heaters, tanks, dynamos, transformers, motors, generators, fans, blowers, vents, switchboards, electrical equipment, heating, plumbing, lifting and ventilating apparatus, air-cooling and air-conditioning apparatus, water, gas and electrical fixtures, elevators, mail conveyors, escalators, drapes, carpets, shades, awnings, screens, radiators, partitions, ducts, shafts, pipes, conduits, lines and facilities of whatsoever nature for air, gas, water, steam, electricity, waste sewage and for other utilities, services and uses, compressors, vacuum cleaning systems, call systems, fire prevention and extinguishing apparatus, kitchen equipment, cafeteria equipment, all of which to the extent permitted by law are hereby understood and agreed to be part and parcel of the Real Property and improvements thereon and appropriated to the use and operation of the Real Property and said improvements, and whether affixed or annexed or not, shall for the purposes of this Deed of Trust be deemed constructively to be real estate and conveyed hereby, excluding, however, readily movable trade fixtures not used or acquired for use in connection with the operation of any such building or any part thereof, readily movable office furniture, furnishings and equipment not so used or acquired for use, and consumable supplies, whether or not affixed or annexed, that have been or that may hereafter be placed in any building constructed upon the Real Property or any part thereof.
Guarantor . The word Guarantor (individually and/or collectively, as the context may require) means those persons, firms or entities, if any, designated as Guarantor in the Related Documents.
Guaranty . The word Guaranty (individually and/or collectively, as the context may require) means that or those instruments of guaranty, if any, now or hereafter in effect, from Guarantor to Beneficiary guaranteeing the repayment of all or any part of the Indebtedness.
Improvements . The word Improvements means and includes without limitation all existing and future improvements, fixtures, buildings, structures, mobile homes affixed on the Real Property, facilities, additions and other construction on the Real Property.
Indebtedness . The word Indebtedness means: (a) the Note; (b) all principal and earned interest and other sums required to be paid pursuant to the Note, this Deed of Trust, and any other instruments related thereto; (c) all sums advanced or costs or expenses incurred by Beneficiary (whether by Beneficiary directly or on Beneficiarys behalf by the Trustee) which are made or incurred pursuant to or allowed by the terms of this instrument, plus interest thereon at the same rate as provided in the Note from the date paid until reimbursed; (d) other and additional notes, debts, obligations, and liabilities of any kind and character of Borrower, now and hereafter existing in favor of Beneficiary regardless of whether such notes, debts, obligations, and liabilities be direct or indirect, primary or secondary, joint, several or joint and several, fixed or
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contingent and regardless of whether such present or future notes, debts, obligations, and liabilities may, prior to their acquisition by Beneficiary, be or have been payable to or be or have been in favor of some other person or have been acquired by Beneficiary in a transaction with one other than Beneficiary, together with any and all renewals and extensions of such notes, debts, obligations, and liabilities, or any part thereof; and (e) all renewals and extensions of the above whether or not Borrower executes any renewal or extension agreement.
Note . The word Note means the note dated effective June 28, 2011 , in the principal amount of Twelve Million One Hundred Eighty-Seven Thousand Five Hundred and 00/100 Dollars ($12,187,500.00) from Borrower to Beneficiary, together with all renewals, extensions, modifications, refinancings, and substitutions for the Note.
Personal Property . The words Personal Property mean all equipment, and other articles of personal property now or hereafter owned by Borrower, and now or hereafter attached or affixed to the Real Property, and such other personal property as may be described in this Deed of Trust; together with all accessions, parts, additions to, replacements of, and substitutions for, any of such property; and together with all proceeds (including without limitation all insurance proceeds and refunds of premiums) from any sale or other disposition of the Property.
Property . The word Property means collectively the Real Property and the Personal Property.
Related Documents . The words Related Documents mean and include without limitation all credit agreements, loan agreements, guaranties, security agreements, mortgages, deeds of trust and all other instruments and documents, whether now or hereafter existing, executed in connection with the Indebtedness.
Rents . The word Rents means all present and future rents, revenues, income, issues, bonuses, production payments, royalties, profits, and other benefits derived from the Property.
THIS DEED OF TRUST IS GIVEN AND ACCEPTED ON THE FOLLOWING TERMS:
PAYMENT AND PERFORMANCE . Except as otherwise provided in this Deed of Trust, Borrower shall pay to Beneficiary all amounts secured by this Deed of Trust as they become due, and shall strictly and in a timely manner perform all of Borrowers obligations under the Indebtedness and this Deed of Trust.
POSSESSION AND MAINTENANCE OF THE PROPERTY . Borrower agrees that Borrowers possession and use of the Property shall be governed by the following provisions:
Possession and Use . Until the occurrence of an Event of Default, Borrower may: (a) remain in possession and control of the Property; (b) use, operate or manage the Property; and (c) collect any Rents from the Property.
Duty to Maintain . Borrower shall maintain the Property in tenantable condition and promptly perform all repairs, replacements, and maintenance necessary to preserve its value.
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Hazardous Substances . The terms hazardous waste, hazardous substance, disposal, release, and threatened release, as used in this Deed of Trust, shall have the same meanings as set forth in the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C. Section 9601, et seq. (CERCLA), the Superfund Amendments and Reauthorization Act of 1986, Pub. L No. 99-499 (SARA), the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et seq., the Resource Conservation and Recovery Act, 49 U.S.C. Section 6901, et seq., or other applicable state or Federal laws, rules, or regulations adopted pursuant to any of the foregoing. Borrower represents and warrants to Beneficiary that: (a) During the period of Borrowers ownership of the Property, there has been no use, generation, manufacture, storage, treatment, disposal, release or threatened release of any hazardous waste or substance by any person on, under, or about the Property; (b) Borrower has no knowledge of, or reason to believe that there has been, except as previously disclosed to and acknowledged by Beneficiary in writing, (i) any use, generation, manufacture, storage, treatment, disposal, release, or threatened release of any hazardous waste or substance by any prior owners or occupants of the Property or (ii) any actual or threatened litigation or claims of any kind by any person relating to such matters; (c) Except as previously disclosed to and acknowledged by Beneficiary in writing, (i) neither Borrower nor any tenant, contractor, agent or other authorized user of the Property shall use, generate, manufacture, store, treat, dispose of, or release any hazardous waste or substance on, under, or about the Property and (ii) any such activity shall be conducted in compliance with all applicable federal, state, and local laws, regulations and ordinances, including without limitation those laws, regulations, and ordinances described above. Borrower authorizes Beneficiary and its agents to enter upon the Property to make such inspections and tests as Beneficiary may deem appropriate to determine compliance of the Property with this section of the Deed of Trust. Any inspections or tests made by Beneficiary shall be at Borrowers expense, shall be for Beneficiarys purposes only and shall not be construed to create any responsibility or liability on the part of Beneficiary to Borrower or to any other person. The representations and warranties contained herein are based on Borrowers due diligence in investigating the Property for hazardous waste. Borrower hereby (a) releases and waives any future claims against Beneficiary for indemnity or contribution in the event Borrower becomes liable for cleanup or other costs under any such laws, and (b) agrees to indemnify and hold harmless Beneficiary against any and all claims, losses, liabilities, damages, penalties, and expenses which Beneficiary may directly or indirectly sustain or suffer resulting from a breach of this section of the Deed of Trust or as a consequence of any use, generation, manufacture, storage, disposal, release or threatened release occurring prior to Borrowers ownership or interest in the Property, whether or not the same was or should have been known to Borrower. The provisions of this section of the Deed of Trust including the obligation to indemnify, shall survive the payment of the Indebtedness and the satisfaction and release of the lien of this Deed of Trust and shall not be affected by Beneficiarys acquisition of any interest in the Property, whether by foreclosure or otherwise.
Nuisance, Waste . Borrower shall not cause, conduct or permit any nuisance nor commit, permit, or suffer any stripping of or waste on or to the Property or any portion of the Property. Specifically without limitation, Borrower will not remove, or grant to any other party the right to remove, any timber, minerals (including oil and gas), soil, gravel or rock products without the prior written consent of Beneficiary. This restriction will not apply to rights and easements (such as gas and oil) not owned by Borrower and of which Borrower has informed Beneficiary in writing prior to Borrowers signing of this Deed of Trust.
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Removal of Improvements . Borrower shall not demolish or remove any Improvements from the Real Property without the prior written consent of Beneficiary. As a condition to the removal of any Improvements, Beneficiary may require Borrower to make arrangements satisfactory to Beneficiary to replace such Improvements with Improvements of at least equal value.
Beneficiarys Right to Enter . Beneficiary and its agents and representatives may enter upon the Real Property at all reasonable times to attend to Beneficiarys interests and to inspect the Property for purposes of Borrowers compliance with the terms and conditions of this Deed of Trust.
Compliance with Governmental Requirements . Borrower shall promptly comply with all laws, ordinances, and regulations, now or hereafter in effect, of all governmental authorities applicable to the use or occupancy of the Property. Borrower may contest in good faith any such law, ordinance, or regulation and withhold compliance during any proceeding, including appropriate appeals, so long as Borrower has notified Beneficiary in writing prior to doing so and so long as Beneficiarys interests in the Property are not jeopardized. Beneficiary may require Borrower to post adequate security or a surety bond, reasonably satisfactory to Beneficiary, to protect Beneficiarys interest.
Duty to Protect . Borrower agrees neither to abandon nor leave unattended the Property. Borrower shall do all other acts, in addition to those acts set forth above in this section, which from the character and use of the Property are reasonably necessary to protect and preserve the Property.
DUE ON SALE CONSENT BY BENEFICIARY . Beneficiary may, at its option, declare immediately due and payable all Indebtedness secured by this Deed of Trust upon the sale or transfer, without the Beneficiarys prior written consent, of all or any part of the Real Property, or any interest in the Real Property. A sale or transfer means the conveyance of Real Property or any right, title or interest therein; whether legal or equitable; whether voluntary or involuntary; whether by outright sale, deed, installment sale contract, land contract, contract for deed, leasehold interest with a term greater than three (3) years, lease-option contract, or by sale, assignment, or transfer of any beneficial interest in or to any land trust holding title to the Real Property, or by any other method of conveyance of such Real Property interest. If any Borrower is a corporation or partnership, transfer also includes any change in ownership of more than twenty-five percent (25%) of the voting stock or partnership interests, as the case may be, of Borrower. However, this option shall not be exercised by Beneficiary if such exercise is prohibited by Federal law or by Texas Law.
TAXES AND LIENS . The following provisions relating to the taxes and liens on the Property are a part of this Deed of Trust:
Payment . Borrower shall pay when due (and in all events prior to delinquency) all taxes, special taxes, assessments, charges (including water and sewer), fines and impositions levied against or on account of the Property, and shall pay when due all claims for work done on or for services rendered or material furnished to the Property. Borrower shall maintain the Property free of all liens having priority over or equal to the interest of Beneficiary under this Deed of Trust, except for the lien of taxes and assessments not due and except as otherwise provided in this Deed of Trust.
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Right to Contest . Borrower may withhold payment of any tax, assessment, or claim in connection with a good faith dispute over the obligation to pay, so long as Beneficiarys interest in the Property is not jeopardized. If a lien arises or is filed as a result of nonpayment, Borrower shall within fifteen (15) days after the lien arises or, if a lien is filed, within fifteen (15) days after Borrower has notice of the filing, secure the discharge of the lien, or if requested by Beneficiary, deposit with Beneficiary, cash or a sufficient corporate surety bond or other security satisfactory to Beneficiary in an amount sufficient to discharge the lien plus any costs and attorneys fees or other charges that could accrue as a result of a foreclosure or sale under the lien. In any contest, Borrower shall defend itself and Beneficiary and shall satisfy any adverse judgment before enforcement against the Property. Borrower shall name Beneficiary as an additional obligee under any surety bond furnished in the contest proceedings.
Evidence of Payment . Borrower shall upon demand furnish to Beneficiary satisfactory evidence of payment of the taxes or assessments and shall authorize the appropriate governmental official to deliver to Beneficiary at any time a written statement of the taxes and assessments against the Property.
Notice of Construction . Borrower shall notify Beneficiary at least fifteen (15) days before any work is commenced, any services are furnished, or any materials are supplied to the Property, if any mechanics lien, materialmens lien, or other lien could be asserted on account of the work, services, or materials and the cost exceeds $1,000.00. Borrower will upon request of Beneficiary furnish to Beneficiary advance assurances satisfactory to Beneficiary that Borrower can and will pay the cost of such improvements.
PROPERTY DAMAGE INSURANCE . The following provisions relating to insuring the Property are a part of this Deed of Trust:
Maintenance of Insurance . Borrower shall procure and maintain policies of fire insurance with standard extended coverage endorsements on a replacement basis for the full insurable value covering all Improvements on the Real Property and all Personal Property in an amount sufficient to avoid application of any coinsurance clause, and with a standard mortgagee clause in favor of Beneficiary, together with such other insurance, including but not limited to hazard, liability, business interruption, and boiler insurance, as Beneficiary may reasonably require. Policies shall be written in form, amounts, coverages and basis reasonably acceptable to Beneficiary. BORROWER MAY FURNISH THE REQUIRED INSURANCE WHETHER THROUGH EXISTING POLICIES OWNED OR CONTROLLED BY BORROWER OR THROUGH EQUIVALENT INSURANCE FROM ANY INSURANCE COMPANY AUTHORIZED TO TRANSACT BUSINESS IN THE STATE OF TEXAS. If Borrower fails to provide any required insurance or fails to continue such insurance in force, Beneficiary may, but shall not be required to, do so at Borrowers expense, and the cost of the insurance will be added to the Indebtedness. If any such insurance is procured by Beneficiary at a rate or charge not fixed or approved by the State Board of Insurance, Borrower will be so notified, and Borrower will have the option for five (5) days of furnishing equivalent insurance through any insurer authorized to transact business in Texas. Borrower, upon request of Beneficiary, will deliver to Beneficiary from time to time the policies or certificates of insurance in form satisfactory to Beneficiary, including stipulations that coverages will not be cancelled or diminished without at least ten (10) days prior written notice to Beneficiary.
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Application of Proceeds . Borrower shall promptly notify Beneficiary of any loss or damage to the Property if the estimated cost of repair or replacement exceeds $1,000.00. Beneficiary may make proof of loss if Borrower fails to do so within fifteen (15) days of the casualty. Whether or not Beneficiarys security is impaired, Beneficiary may, at its election, apply the proceeds to the reduction of the Indebtedness, payment of any lien affecting the Property, or the restoration and repair of the Property. If Beneficiary elects to apply the proceeds to restoration and repair, Borrower shall repair or replace the damaged or destroyed Property in a manner satisfactory to Beneficiary. Beneficiary shall, upon satisfactory proof of such expenditure, pay or reimburse Borrower from the proceeds for the reasonable cost of repair or restoration if Borrower is not in default under this Deed of Trust. Any proceeds which have not been disbursed within 180 days after their receipt and which Beneficiary has not committed to the repair or restoration of the Property shall be used first to pay any amount owing to Beneficiary under this Deed of Trust, then to pay accrued interest, and the remainder, if any, shall be applied to the principal balance of the Indebtedness. If Beneficiary holds any proceeds after payment in full of the Indebtedness, such proceeds shall be paid to Borrower as Borrowers interests may appear.
Unexpired Insurance at Sale . Any unexpired insurance shall inure to the benefit of, and pass to, the purchaser of the Property covered by this Deed of Trust at any trustees sale or other sale held under the provisions of this Deed of Trust, or at any foreclosure sale of such Property.
Borrowers Report on Insurance . Upon request of Beneficiary, however not more than once a year, Borrower shall furnish to Beneficiary a report on each existing policy of insurance showing: (a) the name of the insurer; (b) the risks insured; (c) the amount of the policy; (d) the property insured, the then current replacement value of such property, and the manner of determining that value; and (e) the expiration date of the policy. Borrower shall, upon request of Beneficiary, have an independent appraiser satisfactory to Beneficiary determine the cash value replacement cost of the Property.
ESCROW FOR TAXES AND INSURANCE . At the request of Beneficiary, Borrower shall create a fund or reserve for the payment of all insurance premiums, taxes, and assessments against the Property by paying to Beneficiary contemporaneously with each installment of principal and interest on the note a sum equal to the premiums that will next become due and payable on the hazard insurance policies covering the Property, or any part thereof, plus taxes and assessments next due on the Property or any part thereof, as estimated by Beneficiary, less all sums paid previously to Beneficiary, divided by the number of months to elapse before one month prior to the date when such premiums, taxes, and assessments will become delinquent, such sums to be held by Beneficiary without interest, for the purpose of paying such premiums, taxes, and assessments. Any excess reserve shall, at the discretion of Beneficiary therefor, be credited by Beneficiary on subsequent payments to be made on the Indebtedness, and any deficiency shall be paid by Borrower to Beneficiary on or before the date when such premiums, taxes, and assessments shall become delinquent. Transfer of legal title to the Property shall automatically transfer to the transferee title in all sums deposited under the provisions of this Section.
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FINANCIAL STATEMENTS . Borrower and each Guarantor of the Indebtedness, shall furnish to Beneficiary on an annual basis, balance sheets, income and cash flow statements and federal income tax returns in such form and detail as Beneficiary shall require.
APPRAISALS . Borrower shall furnish to Beneficiary, upon request, such appraisals of the Property as may be required of Beneficiary under applicable State or Federal laws and regulations issued pursuant thereto.
ANNUAL REPORTS . Borrower shall furnish to Beneficiary, upon request, a certified statement of Net Operating Income received from the Property during Borrowers previous fiscal year in such form and detail as Beneficiary shall require. Net Operating Income shall mean all cash receipts from the Property less all cash expenditures made in connection with the operations of the Property.
EXPENDITURES BY BENEFICIARY . If Borrower fails to comply with any provision of this Deed of Trust, or if any action or proceeding is commenced that would materially affect Beneficiarys interests in the Property, Beneficiary on Borrowers behalf may, but shall not be required to, take any action that Beneficiary deems appropriate. Any amount that Beneficiary expends in so doing will bear interest at the Note rate from the date incurred or paid by Beneficiary to the date of repayment by Borrower. All such expenses, at Beneficiarys option, will: (a) be payable on demand; (b) be added to the balance of the Note and be apportioned among and be payable with any installment payments to become due during either (i) the term of any applicable insurance policy or (ii) the remaining term of the Note; or (c) be treated as a balloon payment which will be due and payable at the Notes maturity. This Deed of Trust also will secure payment of these amounts. The rights provided for in this paragraph shall be in addition to any other rights or any remedies to which Beneficiary may be entitled on account of the default. Any such action by Beneficiary shall not be construed as curing the default so as to bar Beneficiary from any remedy that it otherwise would have had.
WARRANTY: DEFENSE OF TITLE . The following provisions relating to ownership of the Property are a part of this Deed of Trust:
Title . Borrower warrants that: (a) Borrower holds good and indefeasible title of record to the Property in fee simple, free and clear of all liens and encumbrances other than those set forth herein or in any title insurance policy, title report, or attorneys opinion issued in favor of, and accepted by Beneficiary in connection with this Deed of Trust; and (b) Borrower has the full right, power, and authority to execute and deliver this Deed of Trust to Beneficiary.
Defense of Title . Subject to the exception in the paragraph above, Borrower warrants and will forever defend the title to the Property against the lawful claims of all persons. In the event any action or proceeding is commenced that questions Borrowers title or the interest of Trustee or Beneficiary under this Deed of Trust, Borrower shall defend the action at Borrowers expense. Borrower may be the nominal party in such proceeding, but Beneficiary shall be entitled to participate in the proceeding and to be represented in the proceeding by counsel of Beneficiarys own choice, and Borrower will deliver, or cause to be delivered, to Beneficiary such instruments as Beneficiary may request from time to time to permit such participation.
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Compliance with Laws . Borrower warrants that the Property and Borrowers use of the Property complies with all existing applicable laws, ordinances, and regulations of governmental authorities.
CONDEMNATION . The following provisions relating to proceedings in condemnation are a part of this Deed of Trust:
Application of Net Proceeds . If all or any part of the Property is condemned by eminent domain proceedings or by any proceeding or purchase in lieu of condemnation, Beneficiary may at its election require that all or any portion of the net proceeds of the award be applied to the Indebtedness or the repair or restoration of the Property. The net proceeds of the award shall mean the award after payment of all reasonable costs, expenses, and attorneys fees necessarily paid or incurred by Borrower, Trustee or Beneficiary in connection with the condemnation.
Proceedings . If any proceeding in condemnation is filed, Borrower shall promptly notify Beneficiary in writing, and Borrower shall promptly take such steps as may be necessary to defend the action and obtain the award. Borrower may be the nominal party in such proceeding, but Beneficiary shall be entitled to participate in the proceeding and to be represented in the proceeding by counsel of its own choice, and Borrower will deliver or cause to be delivered to Beneficiary such instruments as may be requested by it from time to time to permit such participation.
ASSIGNMENT OF RENTS . As additional security for the payment of the Indebtedness, Borrower hereby absolutely assigns to Beneficiary all Rents as defined above. Until the occurrence of an Event of Default, Borrower is granted a license to collect and retain the Rents; however, upon receipt from Beneficiary of a notice that an Event of Default exists under this Deed of Trust, Beneficiary may terminate Borrowers license, and then Beneficiary, as Borrowers agent, may collect the Rents. In addition, if the Property is vacant, Beneficiary may rent or lease the Property. Beneficiary shall not be liable for its failure to rent the Property, to collect any rents, or to exercise diligence in any matter relating to the Rents; Beneficiary shall be accountable only for Rents actually received. Beneficiary neither has nor assumes any obligation as lessor or landlord with respect to any occupant of the Property. Rents so received shall be applied by Beneficiary first to the remaining unpaid balance of the Indebtedness, in such order or manner as Beneficiary shall elect, and the residue, if any, shall be paid to the person or persons legally entitled to the residue.
SECURITY AGREEMENT; FINANCING STATEMENTS . The following provisions relating to this Deed of Trust as a security agreement are a part of this Deed of Trust:
Security Agreement . This instrument shall constitute a security agreement to the extent any of the Property constitutes fixtures or other personal property, and Beneficiary shall have all of the rights of a secured party under the Texas Uniform Commercial Code as amended from time to time.
Security Interest . Upon request by Beneficiary, Borrower shall execute financing statements and take whatever other action is requested by Beneficiary to perfect and continue Beneficiarys security interest in the Property. In addition to recording this Deed of Trust in the real property
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records, Beneficiary may, at any time and without further authorization from Borrower, file executed counterparts, copies or reproductions of this Deed of Trust as a financing statement. Borrower shall reimburse Beneficiary for all expenses incurred in perfecting or continuing this security interest. Upon default, Borrower shall assemble the Personal Property in a manner and at a place reasonably convenient to Borrower and Beneficiary and make it available to Beneficiary within three (3) days after receipt of written demand from Beneficiary.
Addresses . The mailing addresses of Borrower (debtor) and Beneficiary (secured party), from which information concerning the security interest granted by this Deed of Trust may be obtained (each as required by the Texas Uniform Commercial Code), are as stated on the first page of this Deed of Trust.
FURTHER ASSURANCES; ATTORNEY-IN-FACT . The following provisions relating to further assurances and attorney-in-fact are a part of this Deed of Trust:
Further Assurances . At any time, and from time to time, upon request of Beneficiary, Borrower will make, execute and deliver, or will cause to be made, executed or delivered, to Beneficiary or to Beneficiarys designee, and when requested by Beneficiary, cause to be filed, recorded, refiled, or rerecorded, as the case may be, at such times and in such offices and places as Beneficiary may deem appropriate, any and all such mortgages, deeds of trust, security deeds, security agreements, financing statements, continuation statements, instruments of further assurance, certificates, and other documents as may, in the sole opinion of Beneficiary, be necessary or desirable in order to effectuate, complete, perfect, continue, or preserve: (a) the obligations of Borrower under the Note, this Deed of Trust, and the Related Documents; and (b) the liens and security interests created by this Deed of Trust as first and prior liens on the Property, whether now owned or hereafter acquired by Borrower. Unless prohibited by law or agreed to the contrary by Beneficiary in writing, Borrower shall reimburse Beneficiary for all costs and expenses incurred in connection with the matters referred to in this paragraph.
Attorney-in-Fact . If Borrower fails to do any of the things referred to in the preceding paragraph, Beneficiary may do so for and in the name of Borrower and at Borrowers expense. For such purposes, Borrower hereby irrevocably appoints Beneficiary as Borrowers attorney-in-fact for the purpose of making, executing, delivering, filing, recording, and doing all other things as may be necessary or desirable, in Beneficiarys sole opinion, to accomplish the matters referred to in the preceding paragraph.
FULL PERFORMANCE . If Borrower pays all the Indebtedness when due, and otherwise performs all the obligations imposed upon Borrower under this Deed of Trust, Beneficiary shall execute and deliver to Borrower a release of this Deed of Trust lien and suitable statements of termination of any financing statement on file evidencing Beneficiarys security interest in the Rents and the Personal Property. Reasonable costs for preparation of such release and statements of termination together with any filing fees required by law shall be paid by Borrower, if permitted by applicable law.
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EVENTS OF DEFAULT . Each of the following events shall constitute a Default.
Default . Default in the timely payment of any installment of principal and interest of the Indebtedness or in the performance of any covenant or provision of any Related Document.
Insolvency . Borrower, or any Guarantor, shall: (a) execute an assignment for the benefit of creditors or take any action in furtherance thereof; or (b) admit in writing his inability to pay his debts generally as they become due; or (c) as a debtor, file a petition, case, proceeding, or other action pursuant to, or voluntarily seek the benefit or benefits of any debtor relief law or take any action in furtherance thereof; or (d) seek, acquiesce in, or suffer the appointment of a receiver, trustee, or custodian of Borrower, any Guarantor, the Property, in whole or in part, or any significant portion of other property belonging to Borrower or any Guarantor that affects performance of the Indebtedness; or (e) voluntarily become a party to any proceeding seeking to effect a suspension or having the effect of suspending any of the rights of Beneficiary granted or referred to in the Related Documents or take any action in furtherance thereof.
Bankruptcy . The filing of a petition, case, proceeding, or other action against Borrower, or any Guarantor, as a debtor under any debtor relief law; or seeking appointment of a receiver, trustee, or custodian of Borrower, or any Guarantor, or of any property described in the Related Documents or any part thereof, or of any significant portion of other property belonging to Borrower or any Guarantor, that affects its ability to perform under the Indebtedness, or seeking to effect a suspension or having the effect of suspending any of the rights of Beneficiary granted or referred to in the Related Documents, and: (a) Borrower or any Guarantor admits, acquiesces in, or fails to contest the material allegations thereof; or (b) the petition, case, proceeding, or other action results in entry of an order for relief or order granting the relief sought against Borrower or any Guarantor; or (c) the petition, case, proceeding, or other action is not permanently dismissed on or before the earliest of trial thereon or sixty (60) days next following the date of its filing.
Breaches . The discovery by Beneficiary that any warranty, covenant, or representation made to Beneficiary by or on behalf of Borrower or any Guarantor is false, misleading, erroneous, or breached in any material respect.
default shall not be an Event of Default, if a monetary default is cured with thirty (30) days following the delivery of or the mailing of written notice from Beneficiary to Borrowers most current address as reflected in Beneficiarys business records specifying the existence of any such default. If such default is not cured within the applicable period, the default shall be an Event of Default without need of any further notice or action by Beneficiary. Notwithstanding the foregoing, if a non-mandatory default is not capable of being cured within the thirty (30) day period referenced herein, it shall not be considered an Event of Default as long as Borrower is using diligent efforts to cure said non-monetary default.
RIGHTS AND REMEDIES ON DEFAULT . Upon the occurrence of any Event of Default, and after giving any required statutory notice of default, including any notice required under the Texas Property Code, at any time thereafter, Trustee or Beneficiary, at its option, may exercise any one or more of the following rights and remedies, in addition to any other rights or remedies provided by law:
Accelerate Indebtedness . Beneficiary may declare the unpaid principal balance of the Indebtedness due and payable. In no event will Borrower be required to pay any unearned interest.
Foreclosure . If Beneficiary invokes the power of sale, Trustee, at the request of Beneficiary, may sell all or any portion of the Property at public auction to the highest bidder for cash at the location within the courthouse designated by the County Commissioners Court, or if no such area has been designated, at the area designated in the notice of sale within the courthouse, between the hours of 10:00 A.M. and 4:00 P.M. on the first Tuesday of any month, after the Beneficiary or its agent has given notice of the time, place, and terms of sale and of the property to be sold as required by the Texas Property Code, as then amended.
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UCC Remedies . With respect to all or any part of the Personal Property, Beneficiary shall have all the rights and remedies of a secured party under the Texas Uniform Commercial Code.
Trustees Powers . Borrower hereby jointly and severally authorizes and empowers Trustee to sell all or any portion of the Property together or in lots or parcels, as Trustee may deem expedient, and to execute and deliver to the purchaser or purchasers of such Property good and sufficient deeds of conveyance of fee simple title, or of lesser estates, and bills of sale and assignments, with covenants of general warranty made on behalf of Borrower. In no event shall Trustee be required to exhibit, present or display at any such sale any of the Property to be sold at such sale. The Trustee making such sale shall receive the proceeds of the sale and shall apply the same as provided below. Payment of the purchase price to Trustee shall satisfy the liability of the purchaser at any such sale of the Property, and such person shall not be bound to look after the application of the proceeds.
Appoint Receiver . Beneficiary shall have the right to have a receiver appointed to take possession of all or any part of the Property, with the power to protect and preserve the Property, to operate the Property preceding foreclosure or sale, and to collect the Rents from the Property and apply the proceeds, over and above the cost of the receivership, against the Indebtedness. The receiver may serve without bond if permitted by law. Beneficiarys right to the appointment of a receiver shall exist whether or not the apparent value of the Property exceeds the Indebtedness by a substantial amount. Employment by Beneficiary shall not disqualify a person from serving as a receiver.
Tenancy at Sufferance . If Borrower remains in possession of the Property after the Property is sold as provided above or Beneficiary otherwise becomes entitled to possession of the Property upon default of Borrower, Borrower shall become a tenant at sufferance of Beneficiary or the purchaser of the Property and shall, at Beneficiarys option, either: (a) pay a reasonable rental for the use of the Property; (b) vacate the Property immediately upon the demand of Beneficiary; or (c) if such tenants refuse to surrender possession of the Property upon demand, the purchaser shall be entitled to institute and maintain the statutory action of forcible entry and detainer and procure a writ of possession thereunder, and Borrower expressly waives all damages sustained by reason thereof.
Sale of the Property . To the extent permitted by applicable law, Borrower hereby waives any and all rights to have the Property marshaled. In exercising its rights and remedies, the Trustee or Beneficiary shall be free to sell all or any part of the Property together or separately, in one sale or by separate sales. Beneficiary shall be entitled to bid at any public sale on all or any portion of the Property. Trustee may convey all or any part of the Property to the highest bidder for cash with a general warranty binding Borrower, subject to prior liens and to other exceptions to the conveyance and warranty. Borrower waives all requirements of appraisement, if any. The affidavit of any person having knowledge of the facts to the effect that proper notice as required by the Texas Property Code was given shall be prima facie evidence of the fact that such notice was in fact given. Recitals and statements of fact in any notice or in any conveyance to the
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purchaser or purchasers of the Property in any foreclosure sale under this Deed of Trust shall be prima facie evidence of the truth of such facts, and all prerequisites and requirements necessary to the validity of any such sale shall be presumed to have been performed. Any sale under the powers granted by this Deed of Trust shall be a perpetual bar against Borrower, Borrowers heirs, successors, assigns and legal representatives.
Proceeds . Trustee shall pay the proceeds of any sale of the Property: (a) first, to the expenses of foreclosure, including reasonable fees or charges paid to the Trustee, including but not limited to fees for enforcing the lien, posting for sale, selling, or releasing the Property; (b) then to Beneficiary the full amount of the Indebtedness; (c) then to any amount required by law to be paid before payment to Borrower; and (d) the balance, if any, to Borrower.
Waiver; Election of Remedies . A waiver by any party of a breach of a provision of this Deed of Trust shall not constitute a waiver of or prejudice that partys rights otherwise to demand strict compliance with that provision or any other provision. Election by Beneficiary to pursue any remedy provided in this Deed of Trust, the Indebtedness, in any Related Document, or provided by law shall not exclude pursuit of any other remedy, and an election to make expenditures or to take action to perform an obligation of Borrower under this Deed of Trust after failure of Borrower to perform shall not affect Beneficiarys right to declare a default and to exercise any of its remedies. To the extent permitted by law, Borrower waives any rights which Borrower might otherwise have under the provisions of Sections 51.003, 51.004 and 51.005 of the Texas Property Code,
Jury Trial Waiver . In recognition of the higher costs and delay which may result from a jury trial, the parties waive any right to trial by jury of any claim, demand, action or cause of action (a) arising hereunder, or (b) in any way connected with or related or incidental to the dealings of the parties hereto or any of them with respect hereto, in each case whether now existing or hereafter arising, and whether sounding in contract or tort or otherwise; and each party further waives any right to consolidate any such action in which a jury trial has been waived with any other action in which a jury trial cannot be or has not been waived; and each party hereby agrees and consents that any such claim, demand, action or cause of action shall be decided by court trial without a jury, and that any party hereto may file an original counterpart or a copy of this section with any court as written evidence of this consent of the parties hereto to the waiver of their right to trial by jury.
Attorneys Fees; Expenses . If Beneficiary institutes any suit or action to enforce any of the terms of this Deed of Trust, Beneficiary shall be entitled to recover such sum as the court may adjudge reasonable as attorneys fees at trial and on any appeal. Whether or not any court action is involved, all reasonable expenses incurred by Beneficiary which in Beneficiarys opinion are necessary at any time for the protection of its interest or the enforcement of its rights shall become a part of the Indebtedness, be payable on demand and shall bear interest at the Note rate from the date of expenditure until repaid. Expenses covered by this paragraph include, without limitation, however subject to any limits under applicable law, Beneficiarys reasonable attorneys fees whether or not there is a lawsuit, including attorneys fees for bankruptcy proceedings (including efforts to modify or vacate any automatic stay or injunction), appeals and any anticipated post-judgment collection services, the cost of searching records, obtaining title reports (including foreclosure reports), surveyors reports, environmental assessments, appraisal
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fees, title insurance, and fees for the Trustee, to the extent permitted by applicable law. Borrower will also pay any court costs, in addition to all other sums provided by law. In the event of foreclosure of this Deed of Trust, Beneficiary shall be entitled to recover from Borrower Beneficiarys reasonable attorneys fees and actual disbursements necessarily incurred by Beneficiary in pursuing such foreclosure.
POWERS AND OBLIGATIONS OF TRUSTEE . The following provisions relating to the powers and obligations of Trustee are part of this Deed of Trust:
Powers of Trustee . In addition to all powers of Trustee arising as a matter of law, Trustee shall have the power to take the following actions with respect to the Property upon the written request of Beneficiary and Borrower: (a) join in preparing and filing a map or plat of the Real Property, including the dedication of streets or other rights to the public; (b) join in granting any easement or creating any restriction on the Real Property; and (c) join in any subordination or other agreement affecting this Deed of Trust or the interest of Beneficiary under this Deed of Trust.
Obligations to Notify . Trustee shall not be obligated to notify any other lienholder of the Property of the commencement of a foreclosure proceeding or of the commencement of any other action to which Beneficiary may avail itself as a remedy, except to the extent required by applicable law or by written agreement.
Trustee . Trustee shall meet all qualifications required for Trustee under applicable law. In addition to the rights and remedies set forth above, with respect to all or any part of the Property, the Trustee shall have the right to foreclose by notice and sale, and Beneficiary shall have the right to foreclose by judicial foreclosure, in either case in accordance with and to the full extent provided by applicable law.
Substitute Trustee . Beneficiary, at its option, from time to time, and more than once, may appoint in writing a successor or substitute trustee, with or without cause, including the resignation, absence, death, inability, refusal or failure to act of the Trustee. The successor or substitute trustee may be appointed without ever requiring the resignation of the former trustee and without any formality except for the execution and acknowledgment of the appointment by the Beneficiary of this Deed of Trust. The successor or substitute trustee shall then succeed to all rights, obligations, and duties of the Trustee. This appointment may be made on behalf of Beneficiary by the President, any Vice President, Secretary, or Cashier of Beneficiary.
NOTICES TO BORROWER AND OTHER PARTIES . Any notice under this Deed of Trust shall be in writing and shall be effective when actually delivered or, if mailed, shall be deemed effective when deposited in the United States mail first class, certified mail, postage prepaid, directed to the addresses shown near the beginning of this Deed of Trust. Any party may change its address for notices under this Deed of Trust by giving formal written notice to the other parties, specifying that the purpose of the notice is to change the partys address. For notice purposes, Borrower agrees to keep Beneficiary and Trustee informed at all times of Borrowers current address.
MISCELLANEOUS PROVISIONS . The following miscellaneous provisions are a part of this Deed of Trust:
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Amendments . This Deed of Trust, together with any Related Documents, constitutes the entire understanding and agreement of the parties as to the matters set forth in this Deed of Trust. No alteration of or amendment to this Deed of Trust shall be effective unless given in writing and signed by the party or parties sought to be charged or bound by the alteration or amendment.
Applicable Law . This Deed of Trust has been delivered to Beneficiary and accepted by Beneficiary in the State of Texas. This Deed of Trust shall be governed by and construed in accordance with the laws of the State of Texas and applicable Federal laws.
Caption Headings . Caption headings in this Deed of Trust are for convenience purposes only and are not to be used to interpret or define the provisions of this Deed of Trust.
Limitation of Interest . All agreements between Borrower and Beneficiary are expressly limited so that in no contingency or event whatsoever whether by reason of advancement of the proceeds of the Indebtedness, acceleration of maturity of the Indebtedness hereof, or otherwise, shall the amount paid or agreed to be paid to the Beneficiary for the use, forbearance, or detention of the money to be advanced hereunder exceed the highest rate permissible under the laws of the State of Texas and of the United States, and in particular the Texas Finance Code, as amended (to the extent not preempted by Federal law, if any) and any subsequent revisions repeals, or judicial interpretations thereof, to the extent any of same are applicable hereto and thereto. If, from any circumstance whatsoever, fulfillment of any provisions hereof or of the Indebtedness or any other agreement referred to herein or therein shall, at the time fulfillment of such provision be due, involve transcending the limit of validity prescribed by law that a court of competent jurisdiction may deem applicable hereto, then ipso facto the obligations to be fulfilled shall be reduced to the limit of such validity, and if from any circumstance the Beneficiary shall ever receive as interest an amount which would be excessive interest, it shall: (a) be applied to the reduction of the unpaid principal balance of the Indebtedness; or (b) be refunded to Borrower and not to the payment of interest. It is further agreed, without limitation of the foregoing, that all calculations of the rate of interest contracted for, charged, or received on the Indebtedness evidenced or secured hereby that are made for the purpose of determining whether such rate exceeds the maximum lawful contract rate, shall be made, to the extent permitted by applicable law, by amortizing, prorating, allocating, and spreading throughout the full stated term of the Indebtedness so that such rate of interest on account of such Indebtedness, as so calculated, is uniform throughout the term thereof. This provision shall control every other provision of all agreements between Borrower and the Beneficiary.
Merger . There shall be no merger of the interest or estate created by this Deed of Trust with any other interest or estate in the Property at any time held by or for the benefit of Beneficiary in any capacity, without the written consent of Beneficiary.
Multiple Parties . All obligations of Borrower under this Deed of Trust shall be joint and several, and all references to Borrower shall mean each and every Borrower. This means that each of the persons signing below is responsible for all obligations in this Deed of Trust. Where any one or more of the parties are corporations or partnerships, it is not necessary for Beneficiary to inquire into the powers of any of the parties or of the officers, directors, partners, or agents acting or purporting to act on their behalf.
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Severability . If a court of competent jurisdiction finds any provision of this Deed of Trust to be invalid or unenforceable as to any person or circumstance, such finding shall not render that provision invalid or unenforceable as to any other persons or circumstances. If feasible, any such offending provisions shall be deemed to be modified to be within the limits of enforceability or validity; however, if the offending provision cannot be so modified, it shall be stricken and all other provisions of this Deed of Trust in all other respects shall remain valid and enforceable.
Successors and Assigns . Subject to the limitations stated in this Deed of Trust on transfer of Borrowers interest, this Deed of Trust shall be binding upon and inure to the benefit of the parties, their successors and assigns. If ownership of the Property becomes vested in a person other than Borrower, Beneficiary, without notice to Borrower, may deal with Borrowers successors with reference to this Deed of Trust and the Indebtedness by way of forbearance or extension without releasing Borrower from the obligations of this Deed of Trust or liability under the Indebtedness.
Time is of the Essence . Time is of the essence in the performance of this Deed of Trust.
Waivers and Consents . Beneficiary shall not be deemed to have waived any rights under this Deed of Trust (or under the Related Documents) unless such waiver is in writing and signed by Beneficiary. No delay or omission on the part of Beneficiary in exercising any right shall operate as a waiver of such right or any other right. A waiver by any party of a provision of this Deed of Trust shall not constitute a waiver of or prejudice the partys right otherwise to demand strict compliance with that provision or any other provision. No prior waiver by Beneficiary, nor any course of dealing between Beneficiary and Borrower, shall constitute a waiver of any of Beneficiarys rights or any of Borrowers obligations as to any future transactions. Whenever consent by Beneficiary is required in this Deed of Trust, the granting of such consent by Beneficiary in any instance shall not constitute continuing consent to subsequent instances where such consent is required.
SPECIAL PROVISIONS
Partial Releases . It is further agreed that Borrower shall have the privilege, while not in default under the terms of the Note or any of the Security Documents, of, from time to time, obtaining Releases from Beneficiary on individual tracts of the Property sold. Each such tract shall be released upon payment to Beneficiary of: (i) ninety percent (90%) of the Net Sales Proceeds of each such tract; or (ii) the amount specified in the addendum attached as Exhibit B, whichever is greater. Net Sales Proceeds shall mean the gross proceeds payable to Borrower in connection with the sale of a tract after deducting normal and customary closing expenses of a seller, but only to the extent such expenses are actually paid by Borrower.
BORROWER ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS DEED OF TRUST, AND BORROWER AGREES TO ITS TERMS.
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EFFECTIVE the day of , .
BORROWER:
IBG ADRIATICA HOLDINGS, INC.,
a Texas corporation
BY:
DAVID R. BROOKS, President
STATE OF
COUNTY OF
This instrument was acknowledged before me on this day of , , by DAVID R. BROOKS, President of IBG ADRIATICA HOLDINGS, INC., a Texas corporation, on behalf of said corporation.
NOTARY PUBLIC STATE OF
AFTER RECORDING RETURN TO:
First United Bank and Trust Company Attention: Loan Administration/Derek Crouse 1400 West Main Street Durant, Oklahoma 74701 |
PREPARED IN THE LAW OFFICES OF:
William David Keese, P.C. 1400 West Main Street Durant, Oklahoma 74701 |
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EXHIBIT A TO DEED OF TRUST
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EXHIBIT B TO DEED OF TRUST
PARTIAL RELEASE PRICES
RELEASED PROPERTY | MINIMUM RELEASE PRICE | |
Lot 5, Block A, of ADRIATICA LOT 1R, 4 and 5, BLOCK A, A CROATIAN VILLAGE AT STONEBRIDGE RANCH, an Addition to the City of McKinney, Collin County, Texas, according to the Plat thereof recorded in Volume Q, Page 607, of the Map Records of Collin County, Texas | $4,500,000.00 | |
Lot 4R, Block A of Adriatica, an addition to the City of McKinney, Collin County, Texas, according to the plat thereof recorded in Volume 2006, Page 543, Map Records, Collin County, Texas | $3,500,000.00 | |
18.3 acre tract of land located in the City of McKinney, Collin County, Texas | $5.00 per square foot | |
Being Lot 1, Block A, of VILLA DISTRICTADRIATICA, an Addition to the City of McKinney, Collin County, Texas, according to the Plat thereof recorded in Volume 2006, Page 471, Map Records of Collin County, Texas | $350,000.00 | |
Being Lot 3, Block A, of VILLA DISTRICTADRIATICA, an Addition to the City of McKinney, Collin County, Texas, according to the Plat thereof recorded in Volume 2006, Page 471, Map Records of Collin County, Texas | $350,000.00 | |
57 individual lots of land located in Collin County, Texas | $22,500.00 per lot or, in the event the lots are replatted, an aggregate of $1,282,500.00, which shall be prorated over the balance of the replatted lots, as approved by Lender |
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EXHIBIT C
PARTIAL RELEASE PRICES
RELEASED PROPERTY | MINIMUM RELEASE PRICE | |
Lot 5, Block A, of ADRIATICA LOT 1R, 4 and 5, BLOCK A, A CROATIAN VILLAGE AT STONEBRIDGE RANCH, an Addition to the City of McKinney, Collin County, Texas, according to the Plat thereof recorded in Volume Q, Page 607, of the Map Records of Collin County, Texas | $4,500,000.00 | |
Lot 4R, Block A of Adriatica, an addition to the City of McKinney, Collin County, Texas, according to the plat thereof recorded in Volume 2006, Page 543, Map Records, Collin County, Texas | $3,500,000.00 | |
18.3 acre tract of land located in the City of McKinney, Collin County, Texas | $5.00 per square foot | |
Being Lot 1, Block A, of VILLA DISTRICTADRIATICA, an Addition to the City of McKinney, Collin County, Texas, according to the Plat thereof recorded in Volume 2006, Page 471, Map Records of Collin County, Texas | $350,000.00 | |
Being Lot 3, Block A, of VILLA DISTRICTADRIATICA, an Addition to the City of McKinney, Collin County, Texas, according to the Plat thereof recorded in Volume 2006, Page 471, Map Records of Collin County, Texas | $350,000.00 | |
57 individual lots of land located in Collin County, Texas | $22,500.00 per lot or, in the event the lots are replatted, an aggregate of $1,282,500.00, which shall be prorated over the balance of the replatted lots, as approved by Lender |
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EXHIBIT 10.11
COMMERCIAL DEED OF TRUST, SECURITY AGREEMENT
FINANCING STATEMENT AND ASSIGNMENT OF RENTS
NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION FROM ANY INSTRUMENT THAT TRANSFERS AN INTEREST IN REAL PROPERTY BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVERS LICENSE NUMBER
IBG ADRIATICA HOLDINGS, INC., a Texas corporation |
FIRST UNITED BANK AND TRUST COMPANY |
|
1600 Redbud Boulevard, Suite 400 | 1400 West Main Street | |
McKinney, Texas 75069 | Durant, Oklahoma 74701 |
CONVEYANCE AND GRANT. For valuable consideration, Borrower conveys to GREG MASSEY , Trustee, in trust with power of sale, for the benefit of Beneficiary, the following described real property, together with all existing or subsequently erected or affixed buildings, Improvements and Fixtures; and all easements, rights of way, and appurtenances; all water and water rights; and all other rights, royalties, and profits relating to the real property, including without limitation such rights as Borrower may have in all minerals, oil, gas, geothermal and similar matters, located in Collin County, Texas (the Real Property):
Being all those certain tracts or parcels of land situated in Collin County, Texas, more fully described in Exhibit A attached hereto and made a part hereof for all purposes.
SUBJECT TO all conditions, covenants, restrictions, reservations and easements that appear of record.
Borrower hereby absolutely assigns to Beneficiary all of Borrowers right, title, and interest in and to all present and future leases of the Property and all Rents from the Property. In addition, Borrower grants Beneficiary a Uniform Commercial Code security interest in the Rents and the Personal Property defined below.
DEFINITIONS . The following words shall have the following meanings when used in this Deed of Trust. Terms not otherwise defined in this Deed of Trust shall have the meanings attributed to such terms in the Texas Uniform Commercial Code. All references to dollar amounts shall mean amounts in lawful money of the United States of America.
Deed of Trust . The words Deed of Trust mean this Commercial Deed of Trust, Security Agreement, Financing Statement and Assignment of Rents, among Borrower, Beneficiary, and Trustee, and includes without limitation all assignment and security interest provisions relating to the Personal Property and Rents.
Fixtures . The word Fixtures means all building material, machinery, apparatus, equipment, fittings, fixtures and personal property of every kind and nature whatsoever, now in, part of, affixed to, delivered to or used in connection with the buildings and improvements on the Real Property, or hereafter acquired by the Borrower and hereafter placed in, affixed to, delivered to or used in connection with such buildings and improvements or any buildings hereinafter constructed or placed upon the Real Property or any part thereof, including, but without limiting the generality of the foregoing, all engines, furnaces, boilers, stokers, pumps, heaters, tanks, dynamos, transformers, motors, generators, fans, blowers, vents, switchboards, electrical equipment, heating, plumbing, lifting and ventilating apparatus, air-cooling and air-conditioning apparatus, water, gas and electrical fixtures, elevators, mail conveyors, escalators, drapes, carpets, shades, awnings, screens, radiators, partitions, ducts, shafts, pipes, conduits, lines and facilities of whatsoever nature for air, gas, water, steam, electricity, waste sewage and for other utilities, services and uses, compressors, vacuum cleaning systems, call systems, fire prevention and extinguishing apparatus, kitchen equipment, cafeteria equipment, all of which to the extent permitted by law are hereby understood and agreed to be part and parcel of the Real Property and improvements thereon and appropriated to the use and operation of the Real Property and said improvements, and whether affixed or annexed or not, shall for the purposes of this Deed of Trust be deemed constructively to be real estate and conveyed hereby, excluding, however, readily movable trade fixtures not used or acquired for use in connection with the operation of any such building or any part thereof, readily movable office furniture, furnishings and equipment not so used or acquired for use, and consumable supplies, whether or not affixed or annexed, that have been or that may hereafter be placed in any building constructed upon the Real Property or any part thereof.
Guarantor . The word Guarantor (individually and/or collectively, as the context may require) means those persons, firms or entities, if any, designated as Guarantor in the Related Documents.
Guaranty . The word Guaranty (individually and/or collectively, as the context may require) means that or those instruments of guaranty, if any, now or hereafter in effect, from Guarantor to Beneficiary guaranteeing the repayment of all or any part of the Indebtedness.
Improvements . The word Improvements means and includes without limitation all existing and future improvements, fixtures, buildings, structures, mobile homes affixed on the Real Property, facilities, additions and other construction on the Real Property.
Indebtedness . The word Indebtedness means: (a) the Note; (b) all principal and earned interest and other sums required to be paid pursuant to the Note, this Deed of Trust, and any other instruments related thereto; (c) all sums advanced or costs or expenses incurred by Beneficiary (whether by Beneficiary directly or on Beneficiarys behalf by the Trustee) which are made or incurred pursuant to or allowed by the terms of this instrument, plus interest thereon at the same rate as provided in the Note from the date paid until reimbursed; (d) other and additional notes, debts, obligations, and liabilities of any kind and character of Borrower, now and hereafter existing in favor of Beneficiary regardless of whether such notes, debts, obligations, and liabilities be
direct or indirect, primary or secondary, joint, several or joint and several, fixed or contingent and regardless of whether such present or future notes, debts, obligations, and liabilities may, prior to their acquisition by Beneficiary, be or have been payable to or be or have been in favor of some other person or have been acquired by Beneficiary in a transaction with one other than Beneficiary, together with any and all renewals and extensions of such notes, debts, obligations, and liabilities, or any part thereof; and (e) all renewals and extensions of the above whether or not Borrower executes any renewal or extension agreement.
Note . The word Note means the note dated effective June 28, 2011 , in the principal amount of Twelve Million One Hundred Eighty-Seven Thousand Five Hundred and 00/100 Dollars ($12,187,500.00) from Borrower to Beneficiary, together with all renewals, extensions, modifications, refinancings, and substitutions for the Note.
Personal Property . The words Personal Property mean all equipment, and other articles of personal property now or hereafter owned by Borrower, and now or hereafter attached or affixed to the Real Property, and such other personal property as may be described in this Deed of Trust; together with all accessions, parts, additions to, replacements of, and substitutions for, any of such property; and together with all proceeds (including without limitation all insurance proceeds and refunds of premiums) from any sale or other disposition of the Property.
Property . The word Property means collectively the Real Property and the Personal Property.
Related Documents . The words Related Documents mean and include without limitation all credit agreements, loan agreements, guaranties, security agreements, mortgages, deeds of trust, and all other instruments and documents, whether now or hereafter existing, executed in connection with the Indebtedness.
Rents . The word Rents means all present and future rents, revenues, income, issues, bonuses, production payments, royalties, profits, and other benefits derived from the Property.
THIS DEED OF TRUST IS GIVEN AND ACCEPTED ON THE FOLLOWING TERMS:
PAYMENT AND PERFORMANCE . Except as otherwise provided in this Deed of Trust, Borrower shall pay to Beneficiary all amounts secured by this Deed of Trust as they become due, and shall strictly and in a timely manner perform all of Borrowers obligations under the Indebtedness and this Deed of Trust.
POSSESSION AND MAINTENANCE OF THE PROPERTY . Borrower agrees that Borrowers possession and use of the Property shall be governed by the following provisions:
Possession and Use . Until the occurrence of an Event of Default, Borrower may: (a) remain in possession and control of the Property; (b) use, operate or manage the Property; and (c) collect any Rents from the Property.
Duty to Maintain . Borrower shall maintain the Property in tenantable condition and promptly perform all repairs, replacements, and maintenance necessary to preserve its value.
Hazardous Substances . The terms hazardous waste, hazardous substance, disposal, release, and threatened release, as used in this Deed of Trust, shall have the same meanings as set forth in the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C. Section 9601, et seq. (CERCLA), the Superfund Amendments and Reauthorization Act of 1986, Pub. L. No. 99-499 (SARA), the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et seq., the Resource Conservation and Recovery Act, 49 U.S.C. Section 6901, et seq., or other applicable state or Federal laws, rules, or regulations adopted pursuant to any of the foregoing. Borrower represents and warrants to Beneficiary that: (a) During the period of Borrowers ownership of the Property, there has been no use, generation, manufacture, storage, treatment, disposal, release or threatened release of any hazardous waste or substance by any person on, under, or about the Property; (b) Borrower has no knowledge of, or reason to believe that there has been, except as previously disclosed to and acknowledged by Beneficiary in writing, (i) any use, generation, manufacture, storage, treatment, disposal, release, or threatened release of any hazardous waste or substance by any prior owners or occupants of the Property or (ii) any actual or threatened litigation or claims of any kind by any person relating to such matters; (c) Except as previously disclosed to and acknowledged by Beneficiary in writing, (i) neither Borrower nor any tenant, contractor, agent or other authorized user of the Property shall use, generate, manufacture, store, treat, dispose of, or release any hazardous waste or substance on, under, or about the Property and (ii) any such activity shall be conducted in compliance with all applicable federal, state, and local laws, regulations, and ordinances, including without limitation those laws, regulations, and ordinances described above. Borrower authorizes Beneficiary and its agents to enter upon the Property to make such inspections and tests as Beneficiary may deem appropriate to determine compliance of the Property with this section of the Deed of Trust. Any inspections or tests made by Beneficiary shall be at Borrowers expense, shall be for Beneficiarys purposes only and shall not be construed to create any responsibility or liability on the part of Beneficiary to Borrower or to any other person. The representations and warranties contained herein are based on Borrowers due diligence in investigating the Property for hazardous waste. Borrower hereby (a) releases and waives any future claims against Beneficiary for indemnity or contribution in the event Borrower becomes liable for cleanup or other costs under any such laws, and (b) agrees to indemnify and hold harmless Beneficiary against any and all claims, losses, liabilities, damages, penalties, and expenses which Beneficiary may directly or indirectly sustain or suffer resulting from a breach of this section of the Deed of Trust or as a consequence of any use, generation, manufacture, storage, disposal, release or threatened release occurring prior to Borrowers ownership or interest in the Property, whether or not the same was or should have been known to Borrower. The provisions of this section of the Deed of Trust including the obligation to indemnify, shall survive the payment of the Indebtedness and the satisfaction and release of the lien of this Deed of Trust and shall not be affected by Beneficiarys acquisition of any interest in the Property, whether by foreclosure or otherwise.
Nuisance, Waste . Borrower shall not cause, conduct or permit any nuisance nor commit, permit, or suffer any stripping of or waste on or to the Property or any portion of the Property. Specifically without limitation, Borrower will not remove, or grant to any other party the right to remove, any
timber, minerals (including oil and gas), soil, gravel or rock products without the prior written consent of Beneficiary. This restriction will not apply to rights and easements (such as gas and oil) not owned by Borrower and of which Borrower has informed Beneficiary in writing prior to Borrowers signing of this Deed of Trust.
Removal of Improvements . Borrower shall not demolish or remove any Improvements from the Real Property without the prior written consent of Beneficiary. As a condition to the removal of any Improvements, Beneficiary may require Borrower to make arrangements satisfactory to Beneficiary to replace such Improvements with Improvements of at least equal value.
Beneficiarys Right to Enter . Beneficiary and its agents and representatives may enter upon the Real Property at all reasonable times to attend to Beneficiarys interests and to inspect the Property for purposes of Borrowers compliance with the terms and conditions of this Deed of Trust.
Compliance with Governmental Requirements . Borrower shall promptly comply with all laws, ordinances, and regulations, now or hereafter in effect, of all governmental authorities applicable to the use or occupancy of the Property. Borrower may contest in good faith any such law, ordinance, or regulation and withhold compliance during any proceeding, including appropriate appeals, so long as Borrower has notified Beneficiary in writing prior to doing so and so long as Beneficiarys interests in the Property are not jeopardized. Beneficiary may require Borrower to post adequate security or a surety bond, reasonably satisfactory to Beneficiary, to protect Beneficiarys interest.
Duty to Protest . Borrower agrees neither to abandon nor leave unattended the Property. Borrower shall do all other acts, in addition to those acts set forth above in this section, which from the character and use of the Property are reasonably necessary to protect and preserve the Property.
DUE ON SALE CONSENT BY BENEFICIARY . Beneficiary may, at its option, declare immediately due and payable all Indebtedness secured by this Deed of Trust upon the sale or transfer, without the Beneficiarys prior written consent, of all or any part of the Real Property, or any interest in the Real Property. A sale or transfer means the conveyance of Real Property or any right, title or interest therein; whether legal or equitable; whether voluntary or involuntary; whether by outright sale, deed, installment sale contract, land contract, contract for deed, leasehold interest with a term greater than three (3) years, lease-option contract, or by sale, assignment, or transfer of any beneficial interest in or to any land trust holding title to the Real Property, or by any other method of conveyance of such Real Property interest. If any Borrower is a corporation or partnership, transfer also includes any change in ownership of more than twenty-five percent (25%) of the voting stock or partnership interests, as the case may be of Borrower. However, this option shall not be exercised by Beneficiary if such exercise is prohibited by Federal law or by Texas Law.
TAXES AND LIENS . The following provisions relating to the taxes and liens on the Property are a part of this Deed of Trust:
Payment. Borrower shall pay when due (and in all events prior to delinquency) all taxes, special taxes, assessments, charges (including water and sewer), fines and impositions levied against or on
account of the Property, and shall pay when due all claims for work done on or for services rendered or material furnished to the Property. Borrower shall maintain the Property free of all liens having priority over or equal to the interest of Beneficiary under this Deed of Trust, except for the lien of taxes and assessments not due and except as otherwise provided in this Deed of Trust.
Right to Contest . Borrower may withhold payment of any tax, assessment, or claim in connection with a good faith dispute over the obligation to pay, so long as Beneficiarys interest in the Property is not jeopardized. If a lien arises or is filed as a result of nonpayment, Borrower shall within fifteen (15) days after the lien arises or, if a lien is filed, within fifteen (15) days after Borrower has notice of the filing, secure the discharge of the lien, or if requested by Beneficiary, deposit with Beneficiary, cash or a sufficient corporate surety bond or other security satisfactory to Beneficiary in an amount sufficient to discharge the lien plus any costs and attorneys fees or other charges that could accrue as a result of a foreclosure or sale under the lien. In any contest, Borrower shall defend itself and Beneficiary and shall satisfy any adverse judgment before enforcement against the Property. Borrower shall name Beneficiary as an additional obligee under any surety bond furnished in the contest proceedings.
Evidence of Payment . Borrower shall upon demand furnish to Beneficiary satisfactory evidence of payment of the taxes or assessments and shall authorize the appropriate governmental official to deliver to Beneficiary at any time a written statement of the taxes and assessments against the Property.
Notice of Construction . Borrower shall notify Beneficiary at least fifteen (15) days before any work is commenced, any services are furnished, or any materials are supplied to the Property, if any mechanics lien, materialmens lien, or other lien could be asserted on account of the work, services, or materials and the cost exceeds $1,000.00. Borrower will upon request of Beneficiary furnish to Beneficiary advance assurances satisfactory to Beneficiary that Borrower can and will pay the cost of such improvements.
PROPERTY DAMAGE INSURANCE . The following provisions relating to insuring the Property are a part of this Deed of Trust:
Maintenance of Insurance . Borrower shall procure and maintain policies of fire insurance with standard extended coverage endorsements on a replacement basis for the full insurable value covering all Improvements on the Real Property and all Personal Property in an amount sufficient to avoid application of any coinsurance clause, and with a standard mortgagee clause in favor of Beneficiary, together with such other insurance, including but not limited to hazard, liability, business interruption, and boiler insurance, as Beneficiary may reasonably require. Policies shall be written in form, amounts, coverages and basis reasonably acceptable to Beneficiary. BORROWER MAY FURNISH THE REQUIRED INSURANCE WHETHER THROUGH EXISTING POLICIES OWNED OR CONTROLLED BY BORROWER OR THROUGH EQUIVALENT INSURANCE FROM ANY INSURANCE COMPANY AUTHORIZED TO TRANSACT BUSINESS IN THE STATE OF TEXAS. If Borrower fails to provide any required insurance or fails to continue such insurance in force, Beneficiary may, but shall not be required to, do so at Borrowers expense, and the cost of the insurance will be added to the Indebtedness. If any
such insurance is procured by Beneficiary at a rate or charge not fixed or approved by the State Board of Insurance, Borrower will be so notified, and Borrower will have the option for five (5) days of furnishing equivalent insurance through any insurer authorized to transact business in Texas. Borrower, upon request of Beneficiary, will deliver to Beneficiary from time to time the policies or certificates of insurance in form satisfactory to Beneficiary, including stipulations that coverages will not be cancelled or diminished without at least ten (10) days prior written notice to Beneficiary.
Application of Proceeds . Borrower shall promptly notify Beneficiary of any loss or damage to the Property if the estimated cost of repair or replacement exceeds $1,000.00. Beneficiary may make proof of loss if Borrower fails to do so within fifteen (15) days of the casualty. Whether or not Beneficiarys security is impaired, Beneficiary may, at its election, apply the proceeds to the reduction of the Indebtedness, payment of any lien affecting the Property, or the restoration and repair of the Property. If Beneficiary elects to apply the proceeds to restoration and repair, Borrower shall repair or replace the damaged or destroyed Property in a manner satisfactory to Beneficiary. Beneficiary shall, upon satisfactory proof of such expenditure, pay or reimburse Borrower from the proceeds for the reasonable cost of repair or restoration if Borrower is not in default under this Deed of Trust. Any proceeds which have not been disbursed within 180 days after their receipt and which Beneficiary has not committed to the repair or restoration of the Property shall be used first to pay any amount owing to Beneficiary under this Deed of Trust, then to pay accrued interest, and the remainder, if any, shall be applied to the principal balance of the Indebtedness. If Beneficiary holds any proceeds after payment in full of the Indebtedness, such proceeds shall be paid to Borrower as Borrowers interests may appear.
Unexpired Insurance at Sale . Any unexpired insurance shall inure to the benefit of, and pass to, the purchaser of the Property covered by this Deed of Trust at any trustees sale or other sale held under the provisions of this Deed of Trust, or at any foreclosure sale of such Property.
Borrowers Report on Insurance . Upon request of Beneficiary, however not more than once a year, Borrower shall furnish to Beneficiary a report on each existing policy of insurance showing: (a) the name of the insurer; (b) the risks insured; (c) the amount of the policy; (d) the property insured, the then current replacement value of such property, and the manner of determining that value; and (e) the expiration date of the policy. Borrower shall, upon request of Beneficiary, have an independent appraiser satisfactory to Beneficiary determine the cash value replacement cost of the Property.
ESCROW FOR TAXES AND INSURANCE_ At the request of Beneficiary, Borrower shall create a fund or reserve for the payment of all insurance premiums, taxes, and assessments against the Property by paying to Beneficiary contemporaneously with each installment of principal and interest on the note a sum equal to the premiums that will next become due and payable on the hazard insurance policies covering the Property, or any part thereof, plus taxes and assessments next due on the Property or any part thereof, as estimated by Beneficiary, less all sums paid previously to Beneficiary, divided by the number of months to elapse before one month prior to the date when such premiums, taxes, and assessments will become delinquent, such sums to be held by Beneficiary without interest, for the purpose of paying such premiums, taxes, and assessments. Any excess reserve shall, at the discretion of Beneficiary therefor, be credited by Beneficiary on subsequent
payments to be made on the Indebtedness, and any deficiency shall be paid by Borrower to Beneficiary on or before the date when such premiums, taxes, and assessments shall become delinquent. Transfer of legal title to the Property shall automatically transfer to the transferee title in all sums deposited under the provisions of this Section.
FINANCIAL STATEMENTS . Borrower and each Guarantor of the Indebtedness, shall furnish to Beneficiary on an annual basis, balance sheets, income and cash flow statements and federal income tax returns in such form and detail as Beneficiary shall require.
APPRAISALS . Borrower shall furnish to Beneficiary, upon request, such appraisals of the Property as may be required of Beneficiary under applicable State or Federal laws and regulations issued pursuant thereto.
ANNUAL REPORTS . Borrower shall furnish to Beneficiary, upon request, a certified statement of Net Operating Income received from the Property during Borrowers previous fiscal year in such form and detail as Beneficiary shall require. Net Operating Income shall mean all cash receipts from the Property less all cash expenditures made in connection with the operations of the Property.
EXPENDITURES BY BENEFICIARY . If Borrower fails to comply with any provision of this Deed of Trust, or if any action or proceeding is commenced that would materially affect Beneficiarys interests in the Property, Beneficiary on Borrowers behalf may, but shall not be required to, take any action that Beneficiary deems appropriate. Any amount that Beneficiary expends in so doing will bear interest at the Note rate from the date incurred or paid by Beneficiary to the date of repayment by Borrower. All such expenses, at Beneficiarys option, will: (a) be payable on demand; (b) be added to the balance of the Note and be apportioned among and be payable with any installment payments to become due during either (i) the term of any applicable insurance policy or (ii) the remaining term of the Note; or (c) be treated as a balloon payment which will be due and payable at the Notes maturity. This Deed of Trust also will secure payment of these amounts. The rights provided for in this paragraph shall be in addition to any other rights or any remedies to which Beneficiary may be entitled on account of the default. Any such action by Beneficiary shall not be construed as curing the default so as to bar Beneficiary from any remedy that it otherwise would have had.
WARRANTY: DEFENSE OF TITLE . The following provisions relating to ownership of the Property are a part of this Deed of Trust:
Title . Borrower warrants that: (a) Borrower holds good and indefeasible title of record to the Property in fee simple, free and clear of all liens and encumbrances other than those set forth herein or in any title insurance policy, title report, or attorneys opinion issued in favor of, and accepted by Beneficiary in connection with this Deed of Trust; and (b) Borrower has the full right, power, and authority to execute and deliver this Deed of Trust to Beneficiary.
Defense of Title . Subject to the exception in the paragraph above, Borrower warrants and will forever defend the title to the Property against the lawful claims of all persons. In the event any action or proceeding is commenced that questions Borrowers title or the interest of Trustee or
Beneficiary under this Deed of Trust, Borrower shall defend the action at Borrowers expense. Borrower may be the nominal party in such proceeding, but Beneficiary shall be entitled to participate
in the proceeding and to be represented in the proceeding by counsel of Beneficiarys own choice, and Borrower will deliver, or cause to be delivered, to Beneficiary such instruments as Beneficiary may request from time to time to permit such participation.
Compliance with Laws . Borrower warrants that the Property and Borrowers use of the Property complies with all existing applicable laws, ordinances, and regulations of governmental authorities.
CONDEMNATION . The following provisions relating to proceedings in condemnation are a part of this Deed of Trust:
Application of Net Proceeds . If all or any part of the Property is condemned by eminent domain proceedings or by any proceeding or purchase in lieu of condemnation, Beneficiary may at its election require that all or any portion of the net proceeds of the award be applied to the Indebtedness or the repair or restoration of the Property. The net proceeds of the award shall mean the award after payment of all reasonable costs, expenses, and attorneys fees necessarily paid or incurred by Borrower, Trustee or Beneficiary in connection with the condemnation.
Proceedings . If any proceeding in condemnation is filed, Borrower shall promptly notify Beneficiary in writing, and Borrower shall promptly take such steps as may be necessary to defend the action and obtain the award. Borrower may be the nominal party in such proceeding, but Beneficiary shall be entitled to participate in the proceeding and to be represented in the proceeding by counsel of its own choice, and Borrower will deliver or cause to be delivered to Beneficiary such instruments as may be requested by it from time to time to permit such participation.
ASSIGNMENT OF RENTS . As additional security for the payment of the Indebtedness, Borrower hereby absolutely assigns to Beneficiary all Rents as defined above. Until the occurrence of an Event of Default, Borrower is granted a license to collect and retain the Rents; however, upon receipt from Beneficiary of a notice that an Event of Default exists under this Deed of Trust, Beneficiary may terminate Borrowers license, and then Beneficiary, as Borrowers agent, may collect the Rents. In addition, if the Property is vacant, Beneficiary may rent or lease the Property. Beneficiary shall not be liable for its failure to rent the Property, to collect any rents, or to exercise diligence in any matter relating to the Rents; Beneficiary shall be accountable only for Rents actually received. Beneficiary neither has nor assumes any obligation as lessor or landlord with respect to any occupant of the Property. Rents so received shall be applied by Beneficiary first to the remaining unpaid balance of the Indebtedness, in such order or manner as Beneficiary shall elect, and the residue, if any, shall be paid to the person or persons legally entitled to the residue.
SECURITY AGREEMENT; FINANCING STATEMENTS . The following provisions relating to this Deed of Trust as a security agreement are a part of this Deed of Trust:
Security Agreement . This instrument shall constitute a security agreement to the extent any of the Property constitutes fixtures or other personal property, and Beneficiary shall have all of the rights of a secured party under the Texas Uniform Commercial Code as amended from time to time.
Security Interest . Upon request by Beneficiary, Borrower shall execute financing statements and take whatever other action is requested by Beneficiary to perfect and continue Beneficiarys security interest in the Property. In addition to recording this Deed of Trust in the real property records,
Beneficiary may, at any time and without further authorization from Borrower, file executed counterparts, copies or reproductions of this Deed of Trust as a financing statement. Borrower shall reimburse Beneficiary for all expenses incurred in perfecting or continuing this security interest. Upon default, Borrower shall assemble the Personal Property in a manner and at a place reasonably convenient to Borrower and Beneficiary and make it available to Beneficiary within three (3) days after receipt of written demand from Beneficiary.
Addresses . The mailing addresses of Borrower (debtor) and Beneficiary (secured party), from which information concerning the security interest granted by this Deed of Trust may be obtained (each as required by the Texas Uniform Commercial Code), are as stated on the first page of this Deed of Trust.
FURTHER ASSURANCES; ATTORNEY-IN-FACT . The following provisions relating to further assurances and attorney-in-fact are a part of this Deed of Trust:
Further Assurances . At any time, and from time to time, upon request of Beneficiary, Borrower will make, execute and deliver, or will cause to be made, executed or delivered, to Beneficiary or to Beneficiarys designee, and when requested by Beneficiary, cause to be filed, recorded, refiled, or rerecorded, as the case may be, at such times and in such offices and places as Beneficiary may deem appropriate, any and all such mortgages, deeds of trust, security deeds, security agreements, financing statements, continuation statements, instruments of further assurance, certificates, and other documents as may, in the sole opinion of Beneficiary, be necessary or desirable in order to effectuate, complete, perfect, continue, or preserve: (a) the obligations of Borrower under the Note, this Deed of Trust, and the Related Documents; and (b) the liens and security interests created by this Deed of Trust as first and prior liens on the Property, whether now owned or hereafter acquired by Borrower. Unless prohibited by law or agreed to the contrary by Beneficiary in writing, Borrower shall reimburse Beneficiary for all costs and expenses incurred in connection with the matters referred to in this paragraph.
Attorney-in-Fact . If Borrower fails to do any of the things referred to in the preceding paragraph, Beneficiary may do so for and in the name of Borrower and at Borrowers expense. For such purposes, Borrower hereby irrevocably appoints Beneficiary as Borrowers attorney-in-fact for the purpose of making, executing, delivering, filing, recording, and doing all other things as may be necessary or desirable, in Beneficiarys sole opinion, to accomplish the matters referred to in the preceding paragraph.
FULL PERFORMANCE . If Borrower pays all the Indebtedness when due, and otherwise performs all the obligations imposed upon Borrower under this Deed of Trust, Beneficiary shall execute and deliver to Borrower a release of this Deed of Trust lien and suitable statements of termination of any financing statement on file evidencing Beneficiarys security interest in the Rents and the Personal Property. Reasonable costs for preparation of such release and statements of termination together with any filing fees required by law shall be paid by Borrower, if permitted by applicable law.
EVENTS OF DEFAULT . Each of the following events shall constitute a Default.
Default . Default in the timely payment of any installment of principal and interest of the Indebtedness or in the performance of any covenant or provision of any Related Document.
Insolvency . Borrower, or any Guarantor, shall: (a) execute an assignment for the benefit of creditors or take any action in furtherance thereof; or (b) admit in writing his inability to pay his debts generally as they become due; or (c) as a debtor, file a petition, case, proceeding, or other action pursuant to, or voluntarily seek the benefit or benefits of any debtor relief law or take any action in furtherance thereof; or (d) seek, acquiesce in, or suffer the appointment of a receiver, trustee, or custodian of Borrower, any Guarantor, the Property, in whole or in part, or any significant portion of other property belonging to Borrower or any Guarantor that affects performance of the Indebtedness; or (e) voluntarily become a party to any proceeding seeking to effect a suspension or having the effect of suspending any of the rights of Beneficiary granted or referred to in the Related Documents or take any action in furtherance thereof.
Bankruptcy . The filing of a petition, case, proceeding, or other action against Borrower, or any Guarantor, as a debtor under any debtor relief law; or seeking appointment of a receiver, trustee, or custodian of Borrower, or any Guarantor, or of any property described in the Related Documents or any part thereof, or of any significant portion of other property belonging to Borrower or any Guarantor, that affects its ability to perform under the Indebtedness, or seeking to effect a suspension or having the effect of suspending any of the rights of Beneficiary granted or referred to in the Related Documents, and: (a) Borrower or any Guarantor admits, acquiesces in, or fails to contest the material allegations thereof; or (b) the petition, case, proceeding, or other action results in entry of an order for relief or order granting the relief sought against Borrower or any Guarantor; or (c) the petition, case, proceeding, or other action is not permanently dismissed on or before the earliest of trial thereon or sixty (60) days next following the date of its filing.
Breaches . The discovery by Beneficiary that any warranty, covenant, or representation made to Beneficiary by or on behalf of Borrower or any Guarantor is false, misleading, erroneous, or breached in any material respect.
default shall not be an Event of Default, if a monetary default is cured within ten (10) days and a non-monetary default is cured within thirty (30) days following the delivery of or the mailing of written notice from Beneficiary to Borrowers most current address as reflected in Beneficiarys business records specifying the existence of any such default. If such default is not cured within the applicable period, the default shall be an Event of Default without need of any further notice or action by Beneficiary. Notwithstanding the foregoing, if a non-monetary default is not capable of being cured within the thirty (30) day period referenced herein, it shall not be considered an Event of Default so long as Borrower is using diligent efforts to cure said non-monetary default.
RIGHTS AND REMEDIES ON DEFAULT . Upon the occurrence of any Event of Default, and after giving any required statutory notice of default, including any notice required under the Texas
Property Code, at any time thereafter, Trustee or Beneficiary, at its option, may exercise any one or more of the following rights and remedies, in addition to any other rights or remedies provided by law:
Accurate Indebtedness . Beneficiary may declare the unpaid principal balance of the Indebtedness due and payable. In no event will Borrower be required to pay any unearned interest.
Foreclosure . If Beneficiary invokes the power of sale, Trustee, at the request of Beneficiary, may sell all or any portion of the Property at public auction to the highest bidder for cash at the location within the courthouse designated by the County Commissioners Court, or if no such area has been designated, at the area designated in the notice of sale within the courthouse, between the hours of 10:00 A.M. and 4:00 P.M. on the first Tuesday of any month, after the Beneficiary or its agent has given notice of the time, place, and terms of sale and of the property to be sold as required by the Texas Property Code, as then amended.
UCC Remedies . With respect to all or any part of the Personal Property, Beneficiary shall have all the rights and remedies of a secured party under the Texas Uniform Commercial Code.
Trustees Powers . Borrower hereby jointly and severally authorizes and empowers Trustee to sell all or any portion of the Property together or in lots or parcels, as Trustee may deem expedient, and to execute and deliver to the purchaser or purchasers of such Property good and sufficient deeds of conveyance of fee simple title, or of lesser estates, and bills of sale and assignments, with covenants of general warranty made on behalf of Borrower. In no event shall Trustee be required to exhibit, present or display at any such sale any of the Property to be sold at such sale. The Trustee making such sale shall receive the proceeds of the sale and shall apply the same as provided below. Payment of the purchase price to Trustee shall satisfy the liability of the purchaser at any such sale of the Property, and such person shall not be bound to look after the application of the proceeds.
Appoint Receiver . Beneficiary shall have the right to have a receiver appointed to take possession of all or any part of the Property, with the power to protect and preserve the Property, to operate the Property preceding foreclosure or sale, and to collect the Rents from the Property and apply the proceeds, over the above the cost of the receivership, against the Indebtedness. The receiver may serve without bond if permitted by law. Beneficiarys right to the appointment of a receiver shall exist whether or not the apparent value of the Property exceeds the Indebtedness by a substantial amount. Employment by Beneficiary shall not disqualify a person from serving as a receiver.
Tenancy at Sufferance . If Borrower remains in possession of the Property after the Property is sold as provided above or Beneficiary otherwise becomes entitled to possession of the Property upon default of Borrower, Borrower shall become a tenant at sufferance of Beneficiary or the purchaser of the Property and shall, at Beneficiarys option, either: (a) pay a reasonable rental for the use of the Property; (b) vacate the Property immediately upon the demand of Beneficiary; or (c) if such tenants refuse to surrender possession of the Property upon demand, the purchaser shall be entitled to institute and maintain the statutory action of forcible entry and detainer and procure a writ of possession thereunder, and Borrower expressly waives all damages sustained by reason thereof.
Sale of the Property . To the extent permitted by applicable law, Borrower hereby waives any and all rights to have the Property marshaled. In exercising its rights and remedies, the Trustee or Beneficiary shall be free to sell all or any part of the Property together or separately, in one sale or by separate sales. Beneficiary shall be entitled to bid at any public sale on all or any portion of the Property. Trustee may convey all or any part of the Property to the highest bidder for cash with a general warranty binding Borrower, subject to prior liens and to other exceptions to the conveyance and warranty. Borrower waives all requirements of appraisement, if any. The affidavit of any person having knowledge of the facts to the effect that proper notice as required by the Texas Property Code was given shall be prima facie evidence of the fact that such notice was in fact given. Recitals and statements of fact in any notice or in any conveyance to the purchaser or purchasers of the Property in any foreclosure sale under this Deed of Trust shall be prima facie evidence of the truth of such facts, and all prerequisites and requirements necessary to the validity of any such sale shall be presumed to have been performed. Any sale under the powers granted by this Deed of Trust shall be a perpetual bar against Borrower, Borrowers heirs, successors, assigns and legal representatives.
Proceeds . Trustee shall pay the proceeds of any sale of the Property: (a) first, to the expenses of foreclosure, including reasonable fees or charges paid to the Trustee, including but not limited to fees for enforcing the lien, posting for sale, selling, or releasing the Property; (b) then to Beneficiary the full amount of the Indebtedness; (c) then to any amount required by law to be paid before payment to Borrower; and (d) the balance, if any, to Borrower.
Waiver; Election of Remedies . A waiver by any party of a breach of a provision of this Deed of Trust shall not constitute a waiver of or prejudice that partys rights otherwise to demand strict compliance with that provision or any other provision. Election by Beneficiary to pursue any remedy provided in this Deed of Trust, the Indebtedness, in any Related Document, or provided by law shall not exclude pursuit of any other remedy, and an election to make expenditures or to take action to perform an obligation of Borrower under this Deed of Trust after failure of Borrower to perform shall not affect Beneficiarys right to declare a default and to exercise any of its remedies. To the extent permitted by law, Borrower waives any rights which Borrower might otherwise have under the provisions of Sections 51.003, 51.004 and 51.005 of the Texas Property Code.
Jury Trial Waiver . In recognition of the higher costs and delay which may result from a jury trial, the parties waive any right to trial by jury of any claim, demand, action or cause of action (a) arising hereunder, or (b) in any way connected with or related or incidental to the dealings of the parties hereto or any of them with respect hereto, in each case whether now existing or hereafter arising, and whether sounding in contract or tort or otherwise; and each party further waives any right to consolidate any such action in which a jury trial has been waived with any other action in which a jury trial cannot be or has not been waived; and each party hereby agrees and consents that any such claim, demand, action or cause of action shall be decided by court trial without a jury, and that any party hereto may file an original counterpart or a copy of this section with any court as written evidence of this consent of the parties hereto to the waiver of their right to trial by jury.
Attorneys Fees; Expenses . If Beneficiary institutes any suit or action to enforce any of the terms of this Deed of Trust, Beneficiary shall be entitled to recover such sum as the court may adjudge
reasonable as attorneys fees at trial and on any appeal. Whether or not any court action is involved, all reasonable expenses incurred by Beneficiary which in Beneficiarys opinion are necessary at any time for the protection of its interest or the enforcement of its rights shall become a part of the Indebtedness, be payable on demand and shall bear interest at the Note rate from the date of expenditure until repaid. Expenses covered by this paragraph include, without limitation, however subject to the any limits under applicable law, Beneficiarys reasonable attorneys fees whether or not there is a lawsuit, including attorneys fees for bankruptcy proceedings (including efforts to modify or vacate any automatic stay or injunction), appeals and any anticipated post-judgment collection services, the cost of searching records, obtaining title reports (including foreclosure reports), surveyors reports, environmental assessments, appraisal fees, title insurance, and fees for the Trustee, to the extent permitted by applicable law. Borrower will also pay any court costs, in addition to all other sums provided by law. In the event of foreclosure of this Deed of Trust, Beneficiary shall be entitled to recover from Borrower Beneficiarys reasonable attorneys fees and actual disbursements necessarily incurred by Beneficiary in pursuing such foreclosure.
POWERS AND OBLIGATIONS OF TRUSTEE . The following provisions relating to the powers and obligations of Trustee are part of this Deed of Trust:
Powers of Trustee . In addition to all powers of Trustee arising as a matter of law, Trustee shall have the power to take the following actions with respect to the Property upon the written request of Beneficiary and Borrower: (a) join in preparing and filing a map or plat of the Real Property, including the dedication of streets or other rights to the public; (b) join in granting any easement or creating any restriction on the Real Property; and (c) join in any subordination or other agreement affecting this Deed of Trust or the interest of Beneficiary under this Deed of Trust.
Obligations to Notify . Trustee shall not be obligated to notify any other lienholder of the Property of the commencement of a foreclosure proceeding or of the commencement of any other action to which Beneficiary may avail itself as a remedy, except to the extent required by applicable law or by written agreement.
Trustee . Trustee shall meet all qualifications required for Trustee under applicable law. In addition to the rights and remedies set forth above, with respect to all or any part of the Property, the Trustee shall have the right to foreclose by notice and sale, and Beneficiary shall have the right to foreclose by judicial foreclosure, in either case in accordance with and to the full extent provided by applicable law.
Substitute Trustee . Beneficiary, at its option, from time to time, and more than once, may appoint in writing a successor or substitute trustee, with or without cause, including the resignation, absence, death, inability, refusal or failure to act of the Trustee. The successor or substitute trustee may be appointed without ever requiring the resignation of the former trustee and without any formality except for the execution and acknowledgment of the appointment by the Beneficiary of this Deed of Trust The successor or substitute trustee shall then succeed to all rights, obligations, and duties of the Trustee. This appointment may be made on behalf of Beneficiary by the President, any Vice President, Secretary, or Cashier of Beneficiary.
NOTICES TO BORROWER AND OTHER PARTIES . Any notice under this Deed of Trust shall be in writing and shall be effective when actually delivered or, if mailed, shall be deemed effective when deposited in the United States mail first class, certified mail, postage prepaid, directed to the addresses shown near the beginning of this Deed of Trust. Any party may change its address for notices under this Deed of Trust by giving formal written notice to the other parties, specifying that the purpose of the notice is to change the partys address. For notice purposes, Borrower agrees to keep Beneficiary and Trustee informed at all times of Borrowers current address.
MISCELLANEOUS PROVISIONS . The following miscellaneous provisions are a part of this Deed of Trust:
Amendments . This Deed of Trust, together with any Related Documents, constitutes the entire understanding and agreement of the parties as to the matters set forth in this Deed of Trust. No alteration of or amendment to this Deed of Trust shall be effective unless given in writing and signed by the party or parties sought to be charged or bound by the alteration or amendment.
Applicable Law . This Deed of Trust has been delivered to Beneficiary and accepted by Beneficiary in the State of Texas. This Deed of Trust shall be governed by and construed in accordance with the laws of the State of Texas and applicable Federal laws.
Caption Headings . Caption headings in this Deed of Trust are for convenience purposes only and are not to be used to interpret or define the provisions of this Deed of Trust.
Limitation of Interest . All agreements between Borrower and Beneficiary are expressly limited so that in no contingency or event whatsoever whether by reason of advancement of the proceeds of the Indebtedness, acceleration of maturity of the Indebtedness hereof, or otherwise, shall the amount paid or agreed to be paid to the Beneficiary for the use, forbearance, or detention of the money to be advanced hereunder exceed the highest rate permissible under the laws of the State of Texas and of the United States, and in particular the Texas Finance Code, as amended (to the extent not preempted by Federal law, if any) and any subsequent revisions repeals, or judicial interpretations thereof, to the extent any of same are applicable hereto and thereto. If, from any circumstance whatsoever, fulfillment of any provisions hereof or of the Indebtedness or any other agreement referred to herein or therein shall, at the time fulfillment of such provision be due, involve transcending the limit of validity prescribed by law that a court of competent jurisdiction may deem applicable hereto, then ipso facto the obligations to be fulfilled shall be reduced to the limit of such validity, and if from any circumstance the Beneficiary shall ever receive as interest an amount which would be excessive interest, it shall: (a) be applied to the reduction of the unpaid principal balance of the Indebtedness; or (b) be refunded to Borrower and not to the payment of interest. It is further agreed, without limitation of the foregoing, that all calculations of the rate of interest contracted for, charged, or received on the Indebtedness evidenced or secured hereby that are made for the purpose of determining whether such rate exceeds the maximum lawful contract rate, shall be made, to the extent permitted by applicable law, by amortizing, prorating, allocating, and spreading throughout the full stated term of the Indebtedness so that such rate of interest on account of such Indebtedness, as so calculated, is uniform throughout the term thereof. This provision shall control every other provision of all agreements between Borrower and the Beneficiary.
Merger . There shall be no merger of the interest or estate created by this Deed of Trust with any other interest or estate in the Property at any time held by or for the benefit of Beneficiary in any capacity, without the written consent of Beneficiary.
Multiple Parties . All obligations of Borrower under this Deed of Trust shall be joint and several, and all references to Borrower shall mean each and every Borrower. This means that each of the persons signing below is responsible for all obligations in this Deed of Trust. Where any one or more of the parties are corporations or partnerships, it is not necessary for Beneficiary to inquire into the powers of any of the parties or of the officers, directors, partners, or agents acting or purporting to act on their behalf.
Severability . If a court of competent jurisdiction finds any provision of this Deed of Trust to be invalid or unenforceable as to any person or circumstance, such finding shall not render that provision invalid or unenforceable as to any other persons or circumstances. If feasible, any such offending provisions shall be deemed to be modified to be within the limits of enforceability or validity; however, if the offending provision cannot be so modified, it shall be stricken and all other provisions of this Deed of Trust in all other respects shall remain valid and enforceable.
Successors and Assigns . Subject to the limitations stated in this Deed of Trust on transfer of Borrowers interest, this Deed of Trust shall be binding upon and inure to the benefit of the parties, their successors and assigns. If ownership of the Property becomes vested in a person other than Borrower, Beneficiary, without notice to Borrower, may deal with Borrowers successors with reference to this Deed of Trust and the Indebtedness by way of forbearance or extension without releasing Borrower from the obligations of this Deed of Trust or liability under the Indebtedness.
Time is of the Essence . Time is of the essence in the performance of this Deed of Trust.
Waivers and Consents . Beneficiary shall not be deemed to have waived any rights under this Deed of Trust (or under the Related Documents) unless such waiver is in writing and signed by Beneficiary. No delay or omission on the part of Beneficiary in exercising any right shall operate as a waiver of such right or any other right. A waiver by any party of a provision of this Deed of Trust shall not constitute a waiver of or prejudice the partys right otherwise to demand strict compliance with that provision or any other provision. No prior waiver by Beneficiary, nor any Beneficiarys rights or any of the Borrowers obligations as to any future transactions. Whenever consent by Beneficiary is required in this Deed of Trust, the granting of such consent by Beneficiary in any instance shall not constitute continuing consent to subsequent instances where such consent is required.
SPECIAL PROVISIONS:
Partial Releases . It is further agreed that Borrower shall have the privilege, while not in default under the terms of the Note or any of the Security Documents, of, from time to time, obtaining Releases from Beneficiary on individual tracts of the Property sold. Each such tract shall be released upon payment to Beneficiary of: (i) ninety percent (90%) of the Net Sales Proceeds of each such tract; or (ii) the amount specified in the addendum attached as Exhibit B, whichever is greater. Net Sales Proceeds shall mean the gross proceeds payable to Borrower in connection with the sale of a tract after deducting normal and customary closing expenses of a seller, but only to the extent such expenses are actually paid by Borrower.
BORROWER ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS DEED OF TRUST, AND BORROWER AGREES TO ITS TERMS.
EXECUTED effective as of, but not necessarily on, the 29th day of July, 2011.
BORROWER: | ||
IBG ADRIATICA HOLDINGS, INC., | ||
By: |
/s/ Daniel W. Brooks |
|
DANIEL W. BROOKS, Vice President |
STATE OF TEXAS | § | |
§ | ||
COUNTY OF COLLIN | § |
This instrument was acknowledged before me on this 30 day of December, 2011, by DANIEL W. BROOKS, Vice President of IBG ADRIATICA HOLDINGS, INC., a Texas corporation, on behalf of said corporation.
[Notary Stamp] |
/s/ Steven Cowan |
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NOTARY PUBLIC STATE OF TEXAS |
AFTER RECORDING RETURN TO: | PREPARED IN THE LAW OFFICE OF: | |
First United Bank and Trust Company Attention: Loan Administration/Derek Crouse 1400 West Main Street Durant, Oklahoma 74701 |
William David Keese, P.C. 1400 West Main Street Durant, Oklahoma 74701 |
EXHIBIT A
Legal Description
TRACT I:
All that certain tract of land situated in the Henry Johnson Survey, Abstract No. 482, J.R. Gray Survey, Abstract No. 343 and the J.A. Gray Survey, Abstract No. 344 in the City of McKinney, Collin County, Texas, being part of Tract 8A described in Special Warranty Deed from Stonebridge Ranch Development Corporation, a Delaware corporation to Westerra Stonebridge, L.P., a Delaware limited partnership, as filed for record under Clerks File No. 96-0106740 of the Land Records of Collin County, Texas being more particularly described by metes and bounds as follows:
Begin at a 1/2 inch capped iron rebar (HUITT-ZOLLARS) found at the intersection of the South right-of-way line of Virginia Parkway, according to the Final Plat thereof as recorded in Cabinet G, Page 328, of the Plat Records of Collin County, Texas, and the East right-of-way line of Stonebridge Drive, according to the Final Plat thereof, recorded as Cabinet G, Page 331, of the Plat Records of Collin County, Texas;
THENCE in a southeasterly direction along said South right-of-way line of Virginia Parkway (120 feet wide) the following four (4) courses:
1) South 76 degrees 23 minutes 20 seconds East, a distance of 53.79 feet to a 1/2 inch capped iron rebar (Petsche & Assoc., Inc.) found at the point of curvature of a curve having a central angle of 22 degrees 09 minutes 28 seconds and a radius of 1,810.00 feet;
2) along the arc of said curve to the left, a distance of 699.97 feet to a 1/2 inch capped iron rebar (Petsche & Assoc., Inc.) found at the point of tangency of said curve;
3) North 81 degrees 27 minutes 12 seconds East, a distance of 838.25 feet to a 1/2 inch capped iron rebar (Petsche & Assoc., Inc.) found at the point of curvature of a curve having a central angle of 00 degrees 59 minutes 57 seconds and a radius of 2,240.00 feet;
4) along the arc of said curve to the right, a distance of 39.06 feet to a 1/2 inch capped iron rebar (Petsche & Assoc., Inc.) found for corner;
THENCE South 07 degrees 32 minutes 49 seconds East, departing said South right-of-way line of Virginia Parkway, a distance of 375.65 feet to a 1/2 inch capped iron rebar (Petsche & Assoc., Inc.) found for corner;
THENCE South 65 degrees 28 minutes 25 seconds West, a distance of 292.46 feet to a 1/2 inch capped iron rebar (Petsche & Assoc., Inc.) found for corner;
THENCE South 08 degrees 52 minutes 31 seconds East, a distance of 344.91 feet to a 1/2 inch capped iron rebar (Petsche & Assoc., Inc.) found for corner;
Page 1 of 7
THENCE South 74 degrees 42 minutes 53 seconds East, a distance of 98.25 feet to a 1/2 inch capped iron rebar (Petsche & Assoc., Inc.) found for corner in the curving Northwesterly line of that certain tract or parcel of land known as Stonebridge Lake described in Special Warranty Deed from Ranch Development Company to Stonebridge Ranch Community Association, Inc., a non-profit Texas corporation as filed for record in Volume 3063, Page 542, of the Land Records of Collin County, Texas, said corner being the beginning of a non-tangent curve having a central angle of 32 degrees 38 minutes 22 seconds, a radius of 217.66 feet, and from which a radial line bears South 74 degrees 42 minutes 33 seconds East;
THENCE generally in a Westerly direction along said Northwesterly line of Stonebridge Lake, the following thirteen (13) courses:
1) along the arc of said curve to the left, a distance of 123.99 feet to a 1/2 inch iron rebar found at the point of reverse curvature and the beginning of another curve having a central angle of 61 degrees 26 minutes 07 seconds and a radius of 175.00;
2) along the arc of said curve to the right, a distance of 187.64 feet to a 1/2 inch capped iron rebar (Petsche & Assoc., Inc.) found for corner and from which a radial line bears North 45 degrees 54 minutes 48 seconds West;
3) South 41 degrees 12 minutes 12 seconds West, a distance of 222.16 feet to a 1/2 inch capped iron rebar (Petsche & Assoc., Inc.) found at an angle point;
4) South 42 degrees 06 minutes 05 seconds West, a distance of 103.39 feet to a 1/2 inch capped iron rebar (Petsche & Assoc., Inc.) found at the point of curvature of a curve having a central angle of 25 degrees 18 minutes 24 seconds and a radius of 412.46 feet;
5) along the arc of said curve to the right, a distance of 182.18 feet to a 1/2 inch iron rebar found at the point of tangency of said curve;
6) South 67 degrees 24 minutes 29 seconds West, a distance of 157.33 feet to a 1/2 inch capped iron rebar (Petsche & Assoc., Inc.) found at the point of curvature of a curve having a central angle of 62 degrees 46 minutes 49 seconds, a radius of 172.33 feet;
7) along the arc of said curve to the right, a distance of 188.82 feet to a 1/2 inch iron rebar (Petsche & Assoc., Inc.) found at the point of reverse curvature and the beginning of another curve having a central angle of 56 degrees 42 minutes 56 seconds and a radius of 72.29 feet;
8) along the arc of said curve to the left, a distance of 71.56 feet to a 1/2 inch capped iron rebar (Petsche & Assoc., Inc.) found at the point of reverse curvature and the beginning of another curve having a central angle of 61 degrees 35 minutes 40 seconds and a radius of 43.17 feet;
9) along the arc of said curve to the right, a distance of 46.41 feet to a 1/2 inch capped iron rebar (Petsche & Assoc., Inc.) found at the point of reverse curvature and the beginning of another curve having a central angle of 81 degrees 25 minutes 37 seconds and a radius of 97.42 feet;
10) along the arc of said curve to the left, a distance of 138.46 feet to a 1/2 inch capped iron rebar (Petsche & Assoc., Inc.) found at the point of reverse curvature and the beginning of another curve having a central angle of 61 degrees 32 minutes 19 seconds and a radius of 40.00 feet;
Page 2 of 7
11) along the arc of said curve to the right, a distance of 42.96 feet to a 1/2 inch caped iron rebar (Petsche & Assoc., Inc.) found at the point of tangency of said curve;
12) North 64 degrees 49 minutes 16 seconds West, a distance of 99.75 feet to a 1/2 inch capped iron rebar (Petsche & Assoc., Inc.) found at the point of curvature of a curve having a central angel of 18 degrees 48 minutes 40 seconds and a radius if 71.78 feet;
13) along the arc of said curve to the left, a distance of 23.57 feet to a 1/2 inch caped iron rebar (Petsche & Assoc., Inc.) found for corner;
THENCE North 06 degrees 22 minutes 04 seconds East, departing said Northwesterly line of Stonebridge Lake, a distance of 26.42 feet to a 1/2 inch capped iron rebar (Petsche & Assoc., Inc.) found for corner;
THENCE North 41 degrees 49 minutes 20 seconds West, a distance of 305.86 feet to a 1/2 inch capped iron rebar (Petsche & Assoc., Inc.) found for corner;
THENCE South 76 degrees 44 minutes 49 seconds West, a distance of 66.48 feet to a 1/2 inch capped iron rebar (Petsche & Assoc., Inc.) found for corner in the aforesaid East right-of-way line of Stonebridge Drive;
THENCE in a Northerly direction, along said East right-of-way line of Stonebridge Drive (140 feet wide), the following three (3) courses:
1) North 17 degrees 04 minutes 39 seconds West, a distance of 564.81 feet to a 1/2 inch iron rebar found at the point of curvature of a curve having a central angle of 30 degrees 41 minutes 19 seconds and a radius of 990.00 feet;
2) along the arc of said curve to the right, a distance of 530.26 feet to a 1/2 inch capped iron rebar (Petsche & Assoc., Inc.) at the point of tangency of said curve;
3) North 13 degrees 36 minutes 40 seconds East, a distance of 71.18 feet back to the POINT OF BEGINNING, containing 45.317 acres of land, more or less, SAVE AND EXCEPT that tract of land conveyed to Stonebridge Ranch Community Association, Inc., by deed recorded in Volume 5596, Page 5547, Land Records, Collin County, Texas.
LESS AND EXCEPT and tracts or parcels of land that have previously been released.
Page 3 of 7
TRACT II:
Being Lots 1 through 19, Block A, Lots 1 through 18, Block B, Lots 1 through 11, Block C, Lots 1 through 10, Block D, and Lots 1 through 17, Black E, of VILLA DISTRICT ADRIATICA, an Addition to the City of McKinney, Collin County, Texas, according to the Plat thereof recorded in Volume 2006, Page 471, Map Records of Collin County, Texas.
TRACT III:
All of Building 3 and Building 6 of THE HARBOR AT ADRIATICA CONDOMINIUMS, a Condominium regime in the City of McKinney, Collin County, Texas, according to the Declaration filed for record on February 25, 2009, and recorded under Instrument No. 20090225000215050 in the Deed Records of Collin County, Texas, together with all the undivided percent interest in the General Common Elements as described in said Declaration.
TRACT IV:
Lot 2, Block B and the Common Area B-1 of ADRIATICA, BLOCK B, LOTS 1R & 2, an Addition to the City of McKinney, Collin County, Texas, according to the Revised Plat recorded in Volume 2006, Page 130, of the Map Records of Collin County, Texas.
TRACT V:
Lot 2, Block C of ADRIATICA, a Croatian Village at Stonebridge Ranch, an Addition to the City of McKinney, Collin County, Texas, according to the Revised Plat recorded in Cabinet Q, Page 597, of the Map Records of Collin County, Texas.
TRACT VI:
Lot 1R, Block A of ADRIATICA, a Croatian Village at Stonebridge Ranch, an Addition to the City of McKinney, Collin County, Texas, according to the Revised Plat recorded in Cabinet Q, Page 607, of the Map Records of Collin County, Texas.
Page 4 of 7
TRACT VII:
Buildings A, B, C, D, E, G, H AND I of MEDPARK AT ADRIATICA OFFICE CONDOMINIUMS, a Condominium regime in the City of McKinney, Collin County, Texas, according to the Declaration filed for record on February 6, 2007, and recorded under County Clerks File Number 2007-172740 of the Real Property Records of Collin County, Texas, together with an undivided percent interest in the General Common Elements as described in said Declaration, and together with the exclusive use of the limited common elements appurtenant to said unit and building, all as described in said Declaration.
TRACT VIII:
Lots 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18 and 19, Block A, Lots 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17 and 18, Block B, Lots 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 and 11, Block C, Lots 1, 2, 3, 4, 5, 6 and 7, Block D and Lots 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14, Block E, of VILLA DISTRICT ADRIATICA, an Addition to the City of McKinney, Collin County, Texas, according to the Revised Plat recorded in Volume 2006, Page 471, of the Map Records of Collin County, Texas.
TRACT IX:
Being all of MEDPARK AT ADRIATICA OFFICE CONDOMINIUMS, a Condominium regime in the City of McKinney, Collin County, Texas, according to the Declaration filed for record on February 6, 2007, and recorded under Clerks File No. 2007-172740, Real Property Records, Collin County, Texas, together with an undivided percent interest in the General Common Elements as described in said Declaration, and together with the exclusive use of the limited common elements appurtenant to said unit and building, all as described in said Declaration.
SAVE AND EXCEPT Building F, of Medpark at Adriatica Office Condominiums as shown in Condominium Special Warranty Deed executed by SB Harbor Market Joint Venture, a Texas joint venture to M & JSB, LP, a Texas limited partnership, dated February 16, 2007, filed for record on February 20, 2007 and recorded under Document No. 20070220000229600, Real Property Records, Collin County, Texas.
Said Condominium formally known as Lot 1R, Block B of Adriatica, Block B, Lots 1R and 2, an addition to the City of McKinney, Collin County, Texas, according to the Minor Replat thereof recorded in Volume 2006, Page 130 of the Map Records of Collin County, Texas.
TRACT X:
Lot 5, Block A of ADRIATICA LOT 1R, 4 & 5, BLOCK A, A CROATIAN VILLAGE AT STONEBRIDGE RANCH, an addition to the City of McKinney, Collin County, Texas, according to the revised plat thereof recorded Cabinet Q, Page 607, Map Records, Collin County, Texas.
TRACT XI:
Lot 4R, Block A of ADRIATICA, BLOCK A, LOT 4R, an addition to the City of McKinney, Collin County, Texas, according to the amending plat thereof recorded Volume 2006, Page 543, Map Records, Collin County, Texas.
Page 5 of 7
TRACT XII:
Lot 2, Block A of ADRIATICA, BLOCK A, LOTS 1R1 AND 2, an addition to the City of McKinney, Collin County, Texas, according to the revised plat thereof recorded Volume 2009, Page 72, Map Records, Collin County, Texas.
TRACT XIII:
Buildings 2, 3, 4, 5, 7, and 8 of MEDPARK II AT ADRIATICA CONDOMINIUMS, a Condominium regime in the City of McKinney, Collin County, Texas, according to the Declaration filed for record on January 29, 2010, and recorded under Clerks File No. 20100129000095840, Deed Records, Collin County, Texas, as amended by First Amendment to the Condominium Declaration for MedPark II at Adriatica Condominiums filed February 17, 2011, recorded under Clerks File No. 20110217000178360, Deed Records, Collin County, Texas, together with the appurtenant undivided percentage interest in the General Common Elements as described in said Declaration.
TRACT XIV:
Common Area B-1 of ADRIATICA, BLOCK B, LOTS 1R AND 2, an addition to the City of McKinney, Collin County, Texas, according to the revised plat thereof recorded Volume 2006, Page 130, Map Records, Collin County, Texas.
TRACT XV:
Building C of MEDPARK AT ADRIATICA OFFICE CONDOMINIUMS, a Condominium regime in the City of McKinney, Collin County, Texas, according to the Declaration filed for record on February 6, 2007, and recorded under Clerks File No. 20070206000172740, Deed Records, Collin County, Texas; as amended, restated and superseded by the Amended and Restated Condominium Declaration for MedPark at Adriatica Office Condominium filed June 22, 2009, and recorded under Clerks File No. 20090622000774660, Real Property Records, Collin County, Texas, together with an undivided percentage interest in the General Common Elements as described in said Declaration.
TRACT XVI:
Lots 5 thru 19, Block A; Lots 1 thru 13 and Lots 15 thru 18, Block B; Lots 1, 2, 3, 8, 10 and 11, Block C; Lots 1 thru 7, Block D and Lots 1 thru 8, Block E of VILLA DISTRICT-ADRIATICA, an addition to the City of McKinney, Collin County, Texas, according to the revised plat thereof recorded Volume 2006, Page 471, Map Records, Collin County, Texas.
Page 6 of 7
TRACT XVII:
Buildings 3 and 6 of THE HARBOR AT ADRIATICA CONDOMINIUMS, a Condominium regime in the City of McKinney, Collin County, Texas, according to the Declaration filed for record on February 25, 2009, and recorded under Clerks No. 20090225000215050, Deed Records, Collin County, Texas, together with the appurtenant undivided percentage interest in the General Common Elements as described in said Declaration, and the Subordinate Condominium Declaration filed for record on January 29, 2010, and recorded under Clerks No. 20100129000095850, Deed Records, Collin County, Texas.
TRACT XVIII:
Lot 5, Block A, of ADRIATICA LOT 1R, 4 and 5, BLOCK A, A CROATIAN VILLAGE AT STONEBRIDGE RANCH, an Addition to the City of McKinney, Collin County, Texas, according to the Plat thereof recorded in Volume Q, Page 607, of the Map Records of Collin County, Texas.
TRACT XIV:
Lot 4R, Block A of Adriatica, an addition to the City of McKinney, Collin County, Texas, according to the plat thereof recorded in Volume 2006, Page 543, Map Records, Collin County, Texas.
TRACT XX:
Being Lot 1, Block A, of VILLA DISTRICT ADRIATICA, an Addition to the City of McKinney, Collin County, Texas, according to the Plat thereof recorded in Volume 2006, Page 471, Map Records of Collin County, Texas.
TRACT XXI:
Being Lot 3, Block A, of VILLA DISTRICT ADRIATICA, an Addition to the City of McKinney, Collin County, Texas, according to the Plat thereof recorded in Volume 2006, Page 471, Map Records of Collin County, Texas.
LESS AND EXCEPT and tracts or parcels of land that have previously been released.
Page 7 of 7
EXHIBIT B TO DEED OF TRUST
PARTIAL RELEASE PRICES
RELEASED PROPERTY | MINIMUM RELEASE PRICE | |
Lot 5, Block A, of ADRIATICA LOT 1R, 4 and 5, BLOCK A, A CROATIAN VILLAGE AT STONEBRIDGE RANCH, an Addition to the City of McKinney, Collin County, Texas, according to the Plat thereof recorded in Volume Q, Page 607, of the Map Records of Collin County, Texas. | $4,500,000.00 | |
Lot 4R, Block A of Adriatica, an addition to the City of McKinney, Collin County, Texas, according to the plat thereof recorded in Volume 2006, Page 543, Map Records, Collin County, Texas. | $3,500,000.00 | |
18.3 acre tract of land located in the City of McKinney, Collin County, Texas | $5.00 per square foot | |
Being Lot 1, Block A, of VILLA DISTRICT ADRIATICA, an Addition to the City of McKinney, Collin County, Texas, according to the Plat thereof recorded in Volume 2006, Page 471, Map Records of Collin County, Texas. | $350,000.00 | |
Being Lot 3, Block A, of VILLA DISTRICT ADRIATICA, an Addition to the City of McKinney, Collin County, Texas, according to the Plat thereof recorded in Volume 2006, Page 471, Map Records of Collin County, Texas. | $350,000.00 | |
57 individual lots of land located in Collin County, Texas | $22,500.00 per lot or, in the event the lots are replotted, an aggregate of $1,282,500.00, which shall be prorated over the balance of the replotted lots, as approved by Lender. |
Filed and Recorded
Official Public Records
Stacey Kemp, County Clerk
Collin County, TEXAS
01/04/2012 03:04:24 PM
$120.00 DFOSTER
20120104000012390
[Official Stamp] /s/ Stacey Kemp
EXHIBIT 10.12
COMMERCIAL GUARANTY AGREEMENT
INDEPENDENT BANK GROUP, INC., a Texas corporation |
FIRST UNITED BANK AND TRUST COMPANY |
|
1600 Redbud Boulevard, Suite 400 | 1400 West Main Street | |
McKinney, Texas 75069 (hereafter called Guarantor) |
Durant, Oklahoma 74701 (hereafter called Lender) |
THIS GUARANTY AGREEMENT (the Agreement) is made by Guarantor, in favor of Lender (together with any successor holders of the hereinafter defined Note);
W I T N E S S E T H:
WHEREAS , Lender proposes to make a loan to IBG ADRIATICA HOLDINGS, INC., a Texas corporation (Borrower), in the amount of Twelve Million One Hundred Eighty-Seven Thousand Five Hundred and 00/100 Dollars ($12,187,500.00) , which loan would be evidenced by a promissory note made by Borrower payable to Lender of even date herewith in like principal amount (the Note) and would be secured by: Security Agreement (Collateral Transfer of Note and Liens) and; Loan Agreement, together with any other documents securing or governing the Note (herein collectively called the Loan Documents);
WHEREAS , Lender has made it a condition precedent to Lenders making of the loan to Borrower that Guarantor guaranty payment of the Note and related indebtedness on the terms and conditions set forth in this Agreement;
NOW, THEREFORE: (i) To induce Lender to loan monies to or for the account of Borrower; (ii) At the special insistence and request of Borrower; and (iii) For the consideration recited above and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Guarantor hereby agrees as follows:
ARTICLE 1
The Indebtedness
Section 1.1 The Indebtedness . As used in this Agreement, Indebtedness means: (a) the Note; (b) all principal and earned interest and other sums required to be paid pursuant to the Note, the other Loan Documents, and any other instruments related thereto; (c) all sums advanced or costs or expenses incurred by Lender (whether by Lender directly or on Lenders behalf) which are made or incurred pursuant to or allowed by the terms of any Loan Document, plus interest thereon at the same rate as provided in the Note from the date paid until reimbursed; and (d) all renewals and extensions of the above whether or not Lender executes any renewal or extension agreement.
ARTICLE 2
The Guaranty
Section 2.1 Indebtedness Guaranteed . Guarantor hereby unconditionally and irrevocably guarantees the prompt payment and/or performance when due, whether at maturity or otherwise, of all of the Indebtedness. If: (i) Guarantor fails to make any payment or performance of any part of the Indebtedness when due; or (ii) the Note or Loan Documents under which such payment or performance is due provide for any cure period Guarantor fails to cure such default, before the expiration of said cure period; then said failure shall constitute a default hereunder.
Section 2.2 Nature of Guaranty . This is an irrevocable, absolute, completed, and continuing guaranty of payment and performance and not a guaranty of collection, and shall not be affected by the release or discharge of Borrower from, or impairment or modification of, Borrowers obligations with respect to any of the Indebtedness in any bankruptcy, receivership, or other insolvency proceedings or otherwise. No notice of any extension of credit already or hereafter contracted by or extended to Borrower need be given to Guarantor. The fact that the Indebtedness may be rearranged, increased, reduced, extended for any period, and/or renewed from time to time, or paid in full without notice to Guarantor shall not release, discharge, or reduce the obligation of Guarantor with respect to the Indebtedness, and Guarantor shall remain fully bound hereunder. It is the intention of Lender and Guarantor that Guarantors obligations hereunder shall not be discharged at any time prior to the occurrence of both: (i) Payment in full of the Indebtedness; and (ii) Expiration of Lenders obligation to advance monies to Borrower pursuant to the Note or any Loan Document. This Agreement may be enforced by Lender and any subsequent holder of the Indebtedness, and shall not be discharged by the assignment or negotiation of all or part of the Indebtedness. This Agreement may not be revoked by Guarantor and shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any of the Indebtedness is rescinded or must otherwise be returned by Lender upon the insolvency, bankruptcy, reorganization, receivership, or other debtor relief proceeding involving Borrower, or after any attempted revocation by Guarantor, all as though such payment had not been made. Guarantor hereby expressly waives presentment, demand, notice of non-payment, protest, notice of protest and dishonor, notice of intent to accelerate, notice of acceleration, and any other notice whatsoever on any and all forms of such Indebtedness, and also notice of acceptance of this Agreement, acceptance on the part of Lender being conclusively presumed by its request for this Agreement and delivery of the same to Lender.
Section 2.3 Lenders Rights . Guarantor authorizes Lender, without notice or demand and without affecting Guarantors liability hereunder, to take and hold security for the payment of this guaranty and/or any of the Indebtedness, and exchange, enforce, waive and release any such security; to apply such security and direct the order or manner of sale thereof as Lender may determine; to obtain a guaranty of the Indebtedness from any one or more individuals or entities (Persons) and at any time or times; and to enforce, waive, rearrange, modify, limit or release any of such other Persons from their obligations under such guaranties. Guarantor hereby acknowledges and agrees that the obligations of all Persons to pay and satisfy the Indebtedness pursuant to their respective guaranties (including Guarantors obligations under this Agreement) shall be joint and several. Guarantor acknowledges and agrees that Lender shall have complete discretion regarding whether, when, and how to exercise the foregoing rights.
Page 2
Section 2.4 Guarantors Waivers . Guarantor waives any right to require Lender to (and it shall not be necessary for Lender, in order to enforce such payment by Guarantor to first): (i) Proceed against Borrower or any other Person liable on the Indebtedness; (ii) Proceed against or exhaust any security given to secure the Indebtedness; (iii) Have Borrower joined with Guarantor in any suit arising out of this Agreement and/or any of the Indebtedness; (iv) Enforce its rights against any other guarantor of the Indebtedness; or (v) Pursue or exhaust any other remedy in Lenders power whatsoever. Lender shall not be required to mitigate damages or take any action to reduce, collect or enforce the Indebtedness. Guarantor waives any defense or right arising by reason of any disability, lack of corporate authority or power, impairment of recourse or of collateral or other defense of Borrower or any other guarantor of any of the Indebtedness, and shall remain liable hereon regardless of whether Borrower or any other guarantor be found not liable thereon for any reason. Guarantor shall have no right of subrogation until such time as all of the Indebtedness has been paid in full.
Section 2.5 Maturity of Indebtedness; Payment . If the maturity of any Indebtedness is accelerated by bankruptcy or otherwise, then such maturity shall also be deemed accelerated for the purpose of this Agreement without demand or notice to Guarantor. Guarantor shall, forthwith upon notice from Lender of Borrowers failure to pay any Indebtedness at maturity, pay to Lender the amount due and unpaid by Borrower and guaranteed hereby. The failure of Lender to give this notice shall not in any way release Guarantor hereunder.
Section 2.6 Lenders Expenses . If Guarantor fails to pay the Indebtedness after notice from Lender of Borrowers failure to pay any Indebtedness at maturity, and if Lender obtains the services of an attorney for collection of amounts owing by Guarantor hereunder, or if suit is filed to enforce this Agreement, or if proceedings are had in any bankruptcy, probate, receivership, or other judicial proceedings for the establishment or collection of any amount owing by Guarantor hereunder, or if any amount owing by Guarantor hereunder is collected through such proceedings, then Guarantor shall pay to Lender all court costs and Lenders reasonable attorneys fees.
Section 2.7 Primary Liability . The liability of the Guarantor for the payment of the Indebtedness shall be primary and not secondary.
Section 2.8 Events and Circumstances Not Reducing or Discharging Guarantors Obligations . Guarantor hereby consents and agrees to each of the following, and agrees that Guarantors obligations under this Agreement shall not be released, diminished, impaired, reduced or adversely affected by any of the following, and waives any rights (including without limitation rights to notice) which Guarantor might otherwise have as a result of or in connection with any of the following:
(a) Modifications, etc . Any renewal, extension, modification, alteration, or rearrangement of all or any part of the Indebtedness, or of the Note, or of any Loan Document, or any contract or understanding between Borrower and Lender, or any other parties, pertaining to the Indebtedness;
Page 3
(b) Adjustment, etc . Any adjustment, indulgence, forbearance, or compromise that might be granted or given by Lender to Borrower or Guarantor.
(c) Condition of Borrower or Guarantor . The insolvency, bankruptcy, arrangement, adjustment, composition, liquidation, disability, dissolution or lack of power of Borrower or any other party at any time liable for the payment of all or part of the Indebtedness; or any dissolution of Borrower or Guarantor; or any sale, lease or transfer of any or all of the assets of Borrower or Guarantor, or any changes in the shareholders or members of Borrower or Guarantor; or any reorganization of Borrower or Guarantor;
(d) Invalidity of Indebtedness . The invalidity or unenforceability of all or any part of the Indebtedness, or any document or agreement executed in connection with the Indebtedness, for any reason whatsoever, including without limitation the fact that the Indebtedness, or any part thereof, exceeds the amount permitted by law, the act of creating the Indebtedness or any part thereof is ultra vires , the officers or representatives executing the documents or otherwise creating the Indebtedness acted in excess of their authority, the Indebtedness violates applicable usury laws, Borrower has valid defenses, claims, or offsets (whether at law, in equity, or by agreement) which render the Indebtedness wholly or partially uncollectible from Borrower, the creation, performance, or repayment of the Indebtedness (or the execution, delivery, and performance of any document or instrument representing part of the Indebtedness, or executed in connection with the Indebtedness, or given to secure the repayment of the Indebtedness) is illegal, uncollectible, legally impossible, or unenforceable, or any security document or other documents or instruments pertaining to the Indebtedness have been forged or otherwise are irregular or not genuine or authentic;
(e) Release of Obligors . Any full or partial release of the liability of Borrower on the Indebtedness or any part thereof, or of any co-guarantors, or any other person or entity now or hereafter liable, whether directly or indirectly, jointly, severally, or jointly and severally, to pay, perform, guarantee or assure the payment of the Indebtedness or any part thereof, it being recognized, acknowledged, and agreed by Guarantor that Guarantor may be required to pay the Indebtedness in full without assistance or support of any other party, and Guarantor has not been induced to enter into this Agreement on the basis of a contemplation, belief, understanding or agreement that other parties will be liable to perform the Indebtedness, or that Lender will look to other parties to perform the Indebtedness;
(f) Other Security . The taking or accepting of any other security, collateral, guaranty, or other assurance of payment for all or any part of the Indebtedness;
(g) Release of Collateral . Any release, surrender, exchange, subordination, deterioration, waste, loss, or impairment (including without limitation negligent, willful, unreasonable, or unjustifiable impairment) of any collateral at any time securing payment of the Indebtedness;
Page 4
(h) Care and Diligence . The failure of Lender or any other party to exercise diligence or reasonable care in, or the negligence of Lender regarding, the preservation, protection, enforcement, sale, or other handling or treatment of all or any part of such collateral, including without limitation the failure of Lender to foreclose on any collateral mortgaged or pledged under a Loan Document or the delay by Lender in instituting or prosecuting any right or remedy under a Loan Document, including without limitation the right to foreclose on collateral by nonjudicial foreclosure sale or otherwise.
(i) Status of Liens . The fact that any collateral, security interest, or lien contemplated or intended to be given, created, or granted as security for the repayment of the Indebtedness is not properly perfected or created, or proves to be unenforceable or subordinate to any other security interest or lien, it being recognized and agreed by Guarantor that Guarantor is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability, or value of any of the collateral for the Indebtedness;
(j) Defenses and Rights . Any and all suretyship defenses of material alteration of any agreement between Borrower and Lender, together with the provisions of: (a) Sections 34.02 and 34.03 of the Texas Business and Commerce Code; (b) Texas Civil Practice & Remedies Code, Sect. 17.001; (c) Rule 31 of the Texas Rules of Civil Procedure; and (d) Sections 51.003, 51.004 and 51.005 of the Texas Property Code (collectively, Laws), to the extent such Laws (or any of them) are applicable to this Guaranty or the agreements or obligations of Guarantor under this Guaranty.
(k) Preference . Any payment by Borrower to Lender is held to constitute a preference under bankruptcy laws, or for any reason Lender is required to refund such payment or pay such amount to Borrower or someone else; or
(l) Other Actions Taken or Omitted . Any other action taken or omitted to be taken with respect to any security agreement, the Indebtedness, or the security and collateral therefor, whether or not such action or omission prejudices Guarantor or increases the likelihood that Guarantor will be required to pay the Indebtedness pursuant to the terms hereof;
it being the unambiguous and unequivocal intention of Guarantor that Guarantor shall be obligated to pay the Indebtedness when due, notwithstanding any occurrence, circumstance, action, or omission whatsoever, whether contemplated or uncontemplated, and whether or not otherwise or particularly described herein, except for the full and final payment and satisfaction of the Indebtedness.
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Section 2.9 No Duty of Good Faith or Special Relationship . Guarantor acknowledges that Lender has no duty of good faith either to Borrower or Guarantor, and acknowledges that no special relationship, such as a fiduciary or trust relationship exists, between Lender and either of Borrower or Guarantor. Guarantor agrees that no such duty of good faith shall arise, and no such special relationship shall exist, unless pursuant to, and only to the extent set forth in, a written agreement that is signed by Lender and that expressly creates such duty of good faith or such special relationship.
Section 2.10 No Duty to Mitigate . Without limiting any other provision in this Agreement, Lender shall have no duty to mitigate the amounts payable by Guarantor to Lender hereunder.
Section 2.11 Application of Proceeds . Without limiting any other provision in this Agreement, Guarantor acknowledges and agrees that to the extent Lender realizes any proceeds tinder any Loan Document (including without limitation proceeds arising from the sale at foreclosure of any mortgaged property), such proceeds shall first be applied to that portion, if any, of the Indebtedness for which no person (including Guarantor) has personal or entity liability for payment, and shall then (and only after payment in full of the portion of the Indebtedness for which no person has personal or entity liability for payment) be applied to the portion of the Indebtedness for whose payment Guarantor is liable.
Section 2.12 Right of Setoff . In addition to all liens upon and rights of setoff against the moneys, securities or other property of Guarantor given to Lender by law, Lender shall have, with respect to Guarantors obligations to Lender under this Guaranty and to the extent permitted by law, a contractual possessory security interest in and a right of setoff against, and Guarantor hereby assigns, conveys, delivers, pledges, and transfers to Lender all of Guarantors right, title and interest in and to, all deposits, moneys, securities and other property of Guarantor now or hereafter in the possession of or on deposit with Lender, whether held in a general or special account or deposit, whether held jointly with someone else, or whether held for safekeeping or otherwise, excluding however all IRA, Keogh, and trust accounts. Every such security interest and right of setoff may be exercised without demand upon or notice to Guarantor. No security interest or right of setoff shall be deemed to have been waived by any act or conduct on the part of Lender or by any neglect to exercise such right of setoff or to enforce such security interest or by any delay in so doing. Every right of setoff and security interest shall continue in full force and effect until such right of setoff or security interest is specifically waived or released by an instrument in writing executed by Lender.
Section 2.13 Subordination of Borrowers Debts to Guarantor . Guarantor agrees that the Indebtedness of Borrower to Lender, whether now existing or hereafter created, shall be prior to any claim that Guarantor may now have or hereafter acquire against Borrower, whether or not Borrower becomes insolvent. Guarantor hereby expressly subordinates any claim Guarantor may have against Borrower, upon any account whatsoever, to any claim that Lender may now or hereafter have against Borrower. In the event of insolvency and consequent liquidation of the assets of Borrower, through bankruptcy, by an assignment for the benefit of creditors, by voluntary liquidation, or otherwise, the assets of Borrower applicable to the payment of the claims of both Lender and Guarantor shall be paid to Lender and shall be first applied by Lender to the Indebtedness of Borrower to Lender. Guarantor does hereby assign to Lender all claims which it may have or acquire against Borrower or against any assignee or trustee in bankruptcy of Borrower; provided however, that such assignment shall be effective
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only for the purpose of assuring to Lender full payment in legal tender of the Indebtedness. If Lender so requests, any notes or credit agreements now or hereafter evidencing any debts or obligations of Borrower to Guarantor shall be marked with a legend that the same are subject to this Guaranty and shall be delivered to Lender.
Section 2.14 Financing Statements, etc . Guarantor agrees, and Lender hereby is authorized, in the name of Guarantor, from time to time to execute and file financing statements and continuation statements and to execute such other documents and to take such other actions as Lender deems necessary, or appropriate to perfect, preserve and enforce its rights under this Agreement.
Section 2.15 Bankruptcy of Guarantor . Should Guarantor fail to pay Guarantors debts generally as they become due, or voluntarily seek, consent to, or acquiesce in the benefit (or benefits) of the Federal Bankruptcy Code, together with all amendments and revisions thereto (the Bankruptcy Code), or any other applicable liquidation, conservatorship, bankruptcy, moratorium, rearrangement, receivership, insolvency, reorganization, suspension of payments, or similar debtor relief law from time to time in effect affecting the rights to creditors generally (collectively, Debtor Relief Laws), or become a party to or be made the subject of any proceeding provided for by any Debtor Relief Law (other than as a creditor or a claimant) that it should consent thereto or shall fail to cause to be discharged within 60 days, then, in any such event, the Indebtedness shall be, as between Guarantor and Lender, fully matured, due, payable (without regard to whether Borrower is then in default under the Loan, Documents or whether the Indebtedness or any part thereof, is then due, owing or performable by Borrower), payable and/or performable in full by Guarantor to Lender upon demand, which, for purposes of Section 502(c) of the Bankruptcy Code, shall be the estimated amount owing in respect of the contingent claim created under this Guaranty.
ARTICLE 3
Representations and Warranties
Section 3.1 By Guarantor . In order to induce Lender to make the loan evidenced by the Note, Guarantor represents and warrants to Lender (which representations and warranties will survive the creation of the Indebtedness and any extension of credit thereunder) that:
(a) Benefit to Guarantor . Guarantors guaranty pursuant to this Agreement reasonably has benefitted or may be expected to benefit, directly or indirectly, Guarantor and has been executed at the request of Borrower.
(b) Familiarity and Reliance . Guarantor is familiar with, and has independently reviewed books and records regarding, the financial condition of Borrower and is familiar with the value of any and all collateral intended to be created as security of the payment of the Note and other Indebtedness; however, Guarantor is not relying on such financial condition or the collateral as an inducement to enter into this Agreement.
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(c) No Representation . Neither Lender nor any other person, corporation, or entity has made any representation, warranty, or statement to Guarantor with regard to Borrower or its financial condition in order to induce Guarantor to execute this Agreement.
(d) Information on Borrower . Guarantor has established adequate means of obtaining from Borrower on a continuing basis, financial and other information pertaining to the business of Borrower. Guarantor assumes full responsibility for keeping fully informed with respect to the business, operation, condition and assets of Borrower. Guarantor hereby waives any duty on the part of Lender to disclose or report to Guarantor any information now or hereafter known to Lender relating to the business, operation, condition or assets of Borrower; regardless of whether Lender has reason to believe that any such facts materially increase the risk beyond that which Guarantor intends to assume or has reason to believe that such facts are unknown to Guarantor or has a reasonable opportunity to communicate such facts to Guarantor, since Guarantor acknowledges hereby that it is fully responsible for being informed and keeping itself informed of the financial condition of Borrower and of all circumstances bearing on the risk of non-payment of any indebtedness hereby guaranteed. Lender shall have no duty to inquire into the authority or powers of Borrower or any officer, employee or agent of Borrower with regard to any Indebtedness, and all Indebtedness made or created in good faith reliance upon the professed exercise of any such authority or powers shall be guaranteed hereunder.
Section 3.2 Review by Attorney . This Agreement was reviewed by the Guarantor, who acknowledges and agrees that: (i) It understands fully the terms of this Agreement and the consequences of the execution thereof; (ii) It has been afforded an opportunity to have this Agreement reviewed by and to discuss such document with such attorneys and other persons as it may wish; and (iii) Has executed and issued this Agreement of its own free will and accord and without threat or duress.
ARTICLE 4
Financial Statements
Section 4.1 Financial Statements . Guarantor shall furnish to Lender, on at least an annual basis, current balance sheets, income and cash flow statements and federal income tax returns in such form and detail and on such dates as Lender shall require.
ARTICLE 5
Miscellaneous
Section 5.1 Successors and Assigns . This Agreement is for and shall inure to the benefit of the successors and assigns of Lender, and is and shall be fully binding upon the legal representatives, successors, and assigns of Guarantor.
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Section 5.2 Notices . Any notice under this Agreement shall be in writing and shall be effective when actually delivered or, if mailed, shall be deemed effective when deposited in the United States mail first class, certified mail, postage prepaid, directed to the addresses shown near the beginning of this Agreement. Any party may change its address for notices under this Agreement by giving formal written notice to the other parties, specifying that the purpose of the notice is to change the partys address. For notice purposes, Guarantor agrees to keep Lender informed at all times of Guarantors current address.
Section 5.3 Governing Laws and Venue . This Agreement is a contract made under and shall be construed in accordance with and governed by the laws of the State of Texas. Venue for any action or proceeding arising out of or in connection with this Agreement, to the fullest extent permitted by law, shall be brought in a District Court of the county in which the Note is performable.
Section 5.4 Final Agreement . The parties intend this writing to be a final expression of their agreement and a complete and exclusive statement of the terms of their agreement. No course of prior dealings between the parties, no usage of the trade, and no parol or extrinsic evidence of any nature, shall be used or be relevant to supplement or explain or modify any term used in this Agreement.
EFFECTIVE the 28 th day of June, 2011.
GUARANTOR: | ||
INDEPENDENT BANK GROUP, INC., | ||
a Texas corporation | ||
BY: | /s/ DAVID R. BROOKS | |
DAVID R. BROOKS, CEO |
PREPARED IN THE LAW OFFICE OF: |
William David Keese, P.C. 1400 West Main Street Durant, Oklahoma 74702 |
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EXHIBIT 10.13
LOAN PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this Agreement) is made by and between the undersigned Seller and Purchaser.
WHEREAS, Seller desires to sell and convey, and Purchaser desires to purchase and pay for, the Loans (hereinafter defined) upon, subject to and conditioned upon the terms and conditions set forth herein.
NOW, THEREFORE, for and in consideration of the premises, and the covenants, conditions and agreements hereinafter contained, the parties hereto agree as follows:
1. | (a) Certain Definitions . As used herein, the following terms shall have the following definitions: |
(i) |
Seller : | FIRST UNITED BANK AND TRUST COMPANY | ||
(ii) |
Sellers Address : |
P.O. Box 130 1400 West Main Street Durant, Oklahoma 74701 Attention: Bert Davison Tel No.: (580) 924-2211 Fax No.: (580) 924-2430 |
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With a Copy to : |
WILLIAM DAVID KEESE, ESQ. William David Keese, P.C. P.O. Box 130 1400 West Main Street Durant, Oklahoma 74701 Tel No.: (580) 920-4978 Fax No.: (580) 924-2430 Email: dkeese@firstunitedbank.com |
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(iii) |
Purchaser : | INDEPENDENT BANK GROUP, INC. | ||
(iv) |
Purchasers Address : |
1600 Redbud Boulevard, Suite 400 McKinney, Texas 75069 Attention: David R. Brooks Tel No.: (972) 562-9004 Fax No.: (972) 562-5496 |
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With a Copy to : |
DOUG RAKE, ESQ. Haynie Rake & Repass PC 14651 Dallas Parkway Dallas, Texas 75254 Tel No.: (972) 716-1855 Fax No.: (972) 716-1850 Email: doug@hrrpc.com |
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(v) |
Loans : | The Loans are collectively referred to as the following loans: | ||
(a) Loan No. 400114658 in the original principal sum of $6,975,000.00 executed by SB Harbor Market Joint Venture (SB Harbor) and payable to the order of Seller (the 6,975,000.00 SB Harbor Note) secured by a deed of trust |
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lien conveyed in a deed of trust dated May 14, 2007 recorded under Document Number 20080912001101930 of the Official Public Records of Collin County, Texas, together with all other collateral securing that loan (the $6,975,000.00 SB Harbor Loan Documents); | ||||
(b) Loan No. 1637933 in the original principal sum of $5,000,000.00 executed by SB Harbor Market Joint Venture and payable to the order of Seller (the $5,000,000.00 SB Harbor Note) secured by a deed of trust lien conveyed in a deed of trust dated April 5, 2005 recorded under Document Number 2005-0045659 of the Official Public Records of Collin County, Texas, together with all collateral securing that loan (the $5,000,000.00) SB Harbor Loan Documents); | ||||
(c) Loan No.400308466 in the original principal sum of $925,985.00 executed by SB Harbor Market Joint Venture and payable to the order of Seller (the $925,985.00 SB Harbor Note) secured by a deed of trust lien conveyed in a deed of trust dated March 27, 2008 recorded under Document Number 20080402000391290 of the Official Public Records of Collin County, Texas, together with all collateral securing that loan (the $925,985.00 SB Harbor Loan Documents); | ||||
(d) Loan No.2334357 in the original principal sum of $2,141,790.00 executed by SB Harbor Market Joint Venture and payable to the order of Seller (the $2,141,790.00 SB Harbor Note) secured by a deed of trust lien conveyed in: (i) a deed of trust dated August 15, 2006 recorded under Document Number 20060816001176770 of the Official Public Records of Collin County, Texas and; (ii) a deed of trust dated August 15, 2006 recorded under Document Number 20060816001176780 of the Official Public Records of Collin County, Texas, together with all collateral securing that loan (the $2,141,790.00 SB Harbor Loan Documents);
|
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(e) Loan No. 2561298 in the original principal sum of $437,600.00 executed by B. Kastelli, LLC (B. Kastelli) and payable to the order of Seller (the $437,600.00 B. Kastelli Note) secured by a deed of trust lien conveyed in a deed of trust dated January 12, 2007 recorded under Document Number 20070122000090300 of the Official Public Records of Collin County, Texas, together with all collateral securing that loan (the $437,600.00 B. Kastelli Loan Documents); | ||||
(f) Loan No.2481547 in the original principal sum of $450,221.00 executed by B. Kastelli, LLC and payable to the order of Seller (the $450,221.00 B. Kastelli Note) secured by a deed of trust lien conveyed in a deed of trust dated January 12, 2007 recorded under Document Number 20070122000089930 of the Official Public Records of Collin County, Texas, together with all collateral securing that loan |
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(the $405,221.00 B. Kastelli Loan Documents); | ||||
(g) Loan No. 2334753 in the original principal sum of $4,356,000.00 executed by Adriatica Commercial One, LP (Adriatica Commercial One) and payable to the order of Seller (the $4,356,000.00 Adriatica Commercial One Note) secured by a deed of trust lien conveyed in a deed of trust dated November 17, 2005 recorded under Document Number 2005-0164916 of the Official Public Records of Collin County, Texas, together with all collateral securing that loan (the $4,356,000.00 Adriatica Commercial One Loan Documents); | ||||
(h) Loan No.2480978 in the original principal sum of $250,000.00 executed by Adriatica Commercial One, LP and payable to the order of Seller (the $250,000.00 Adriatica Commercial One Note) secured by a deed of trust lien conveyed in a deed of trust dated December 14, 2006 recorded under Document Number 20061220001789790 of the Official Public Records of Collin County, Texas, together with all collateral securing that loan (the $250,000.00 Adriatica Commercial One Loan Documents); | ||||
(i) Loan No. 400114617 in the original principal sum of $3,147,718.00 executed by Adriatica Retail II, LP (Adriatica Retail) and payable to the order of Seller (the $3,147,718.00 Adriatica Retail Note) secured by a deed of trust lien conveyed in a deed of trust dated April 4, 2007 recorded under Document Number 20070419000526360 of the Official Public Records of Collin County, Texas, together with all collateral securing that loan (the $3,147,718.00 Adriatica Retail Loan Documents); | ||||
(j) Loan No. 400308862 in the original principal sum of $130,000.00 executed by SB Harbor Market Joint Venture and payable to the order of Seller (the $130,000.00 SB Harbor Note) secured by a deed of trust lien conveyed in a deed of trust dated January 14, 2010 recorded under Document Number 20100120000060460 of the Official Public Records of Collin County, Texas, together with all collateral securing that loan (the $130,000.00 SB Harbor Loan Documents); and | ||||
(k) Loan No. 400585691 in the original principal sum of $400,000.00 executed by SB Harbor Market Joint Venture and payable to the order of Seller (the $400,000.00 SB Harbor Note) secured by a deed of trust lien conveyed in a deed of trust dated April 1, 2011 recorded in the Official Public Records of Collin County, Texas, together with all collateral securing that loan (the $400,000.00 SB Harbor Loan Documents) | ||||
(vi) |
Loan Documents : | The term Loan Documents shall mean collectively the $6,975,000.00 SB Harbor Loan Documents, the |
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$5,000,000.00 SB Harbor Loan Documents, the $925,985.00 SB Harbor Loans Documents, the $2,141,790.00 SB Harbor Loan Documents, the $437,600.00 B. Kastelli Loan Documents, the $450,221.00 B. Kastelli Loan Documents, the $4,356,000.00 Adriatica Commercial One Loan Documents, the $250,000.00 Adriatica Commercial One Loan Documents, the $3,147,718.00 Adriatica Retail Loan Documents, the $130,000.00 SB Harbor Loan Documents, and the $400,000.00 SB Harbor Loan Documents, and the Loan Documents are individually referred to as a Loan Document. | ||||
(vii) |
Notes : | The term Notes shall mean collectively the $6,975.000.00 SB Harbor Note, the $5,000,000.00 SB Harbor Note, the $925,985.00 SB Harbor Note, the $2,141,790.00 SB Harbor Note, the $437,600.00 B. Kastelli Note, the $450,221.00 B. Kastelli Note, the $4,356,000.00 Adriatic Commercial One Note, the $250,000.00 Adriatica Commercial One Note, the $3,147,718.00 Adriatica Retail Note, the $130,000.00 SB Harbor Note, and the $400,000.00 SB Harbor Note, and the Notes are individually referred to as a Note. | ||
(viii) |
Mortgaged Property : | Collectively, the properties (the Mortgaged Properties) encumbered by the deeds of trust securing the Loans, less any portions of the original collateral tracts that have been released by Seller, (which shall be individually referred to as a Mortgaged Property). | ||
(ix) |
Purchase Price : | Seventeen Million Five Hundred Thousand and 00/100 Dollars ($17,500,000.00), which shall be allocated as follows: (i) $2,300,000.00 shall be payable for the $2,141.790.00 SB Harbor Note and $2,141,790.00 SB Harbor Loan Documents; and (ii) $15,200,000.00 shall be payable for the remainder of the Loans. The Cash Portion of the Purchase Price shall be $4,750,000.00. | ||
(x) |
Purchase Loan : | Collectively, and subject to normal seller approval as provided in Paragraph 5 (c): | ||
(1) A loan from Seller to Purchaser for the purchase of the $2,141,790.00 SB Harbor Note, which: (i) shall be in the principal amount of $2,300,000.00 (of which $1,298,463.72 will be recourse (the Recourse Portion), and $1,001,536.28 will be non recourse (the Non-Recourse Portion); (ii) have a maturity of four (4) years from the date of the Closing; (iii) bear interest at the rate of 3.25% per annum for the first two (2) years of the Purchase Loan, and then Wall Street Journal Prime floating thereafter; and (iv) shall have interest payable quarterly during the term of the Purchase Loan; (v) be evidenced by a promissory note, security agreement granting a security interest in the $2,141,790.00 SB Harbor Note and related $2,141.790.00 SB Harbor Loan Documents, and such assignments, loan covenants as may be required by Seller; and (vi) shall contain partial release provisions, including the |
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payment of 80% of the Net Sales Proceeds (as that term will be defined) derived from the sales of lots to Seller as a principal reduction, to be applied first to the Recourse Portion, and thereafter, to the Non-Recourse Portion following the payment in full of the Recourse Portion; and | ||||
(2) A loan from Seller to Purchaser for the purchase of the remainder of the Loans, which: (i) shall be in the principal amount of $10,450,000.00; (ii) have a maturity of four (4) years from the date of the Closing; (iii) bear interest at the rate of 3.25% per annum for the first two (2) years of the Purchase Loan, and then Wall Street Journal Prime floating thereafter; (iv) shall have interest payable quarterly; (v) shall be evidenced by such promissory notes, security agreements, allonges, endorsements, assignments, loan covenants and guarantees as may be required by Seller; and (vi) will provide that the sum of $500,000.00 (the HUD Amount) will be payable upon the sale, financing or refinance of the tract of land situated upon a portion of the Mortgaged Property for the purpose of a multifamily housing project, the legal description of which shall be agreed upon by the Purchaser and Seller (the HUD Loan). In the event the HUD Loan is not approved within 12 months from the Closing, the Purchase Loan will provide that the HUD Amount will be forgiven at that time.
It is acknowledged by Purchaser and Seller that the definitive loan documents evidencing the Purchase Loan shall be in the customary and standard form of loans of a similar nature extended by Seller, with the above provisions merely providing the general parameters of the loan conditions of the Purchase Loan. |
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(xi) |
Review Period : | That period of time ending on that date which is June 15, 2011. | ||
(xii) |
Earnest Money
Deposit : |
$50,000.00, in cash or by a certified or cashiers check payable to the order of the Closing Title Company (hereinafter defined) and delivered by no later than three (3) business days following the date of this Agreement. |
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(xiii) |
Closing Date : | June 25, 2011 | ||
(xiv) |
Title Company : | The particular title company that issued a Lenders Policy of Title Insurance for each of the Loans. |
Reunion Title Company, 1700 Redbud Blvd., Suite 300, McKinney, Texas 75069, Attn: Debbie Boyd (the Closing Title Company) shall be appointed to hold the Earnest Money and close the transaction hereunder.
2. Purchase and Sale . Upon and subject to and conditioned upon the terms and conditions set forth herein, Seller hereby agrees to sell and convey, and Purchaser hereby agrees to purchase and pay for the Loans; together with (i) all of Sellers right, title and interest in and to the Loans.
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3. Earnest Money . Purchaser shall timely deposit the Earnest Money with Closing Title Company on the date which is three (3) business days following the date of this Agreement. Closing Title Company shall promptly negotiate for cash any such check and hold the proceeds thereof as Earnest Money hereunder in an interest bearing demand account, insured by the Federal Deposit Insurance Corporation, or another governmental agency providing insurance of accounts and backed by the full faith and credit of the United States government. Any interest accruing on such account prior to the time such Earnest Money becomes the property of Seller or Seller gains the rights thereto, shall be reported for tax purposes under the tax identification number of Purchaser. After such time as Seller becomes entitled to the Earnest Money, the interest accruing or paid may be reported under Sellers tax identification number. All interest accruing on the Earnest Money shall be added to the account and shall constitute a part of the Earnest Money for the purposes of this Agreement. In the event that this Agreement is actually closed and consummated in accordance with the terms hereof, the Earnest Money shall be applied toward the cash payment due at Closing (hereinafter defined) by Purchaser to Seller in accordance with the terms of Paragraph 4 hereinbelow. In the event that this Agreement is not actually closed and consummated in accordance with the terms hereof, the Earnest Money shall be disbursed by Closing Title Company to Seller or Purchaser (as appropriate) in accordance with the terms of this Agreement. In the event that Purchaser shall fail to timely deposit any of the Earnest Money (or, if in the form of a Check, the bank on whom such Check is drawn refuses to fully honor such Check when negotiated and presented for payment by the Closing Title Company), this Agreement shall by written notice from Seller to Purchaser terminate, whereupon any Earnest Money previously deposited with the Closing Title Company, less the option fee specified in Paragraph 11(f) hereof, shall be returned to Purchaser by the Closing Title Company, and neither party shall have any further obligations or liabilities hereunder, except as otherwise expressly set forth herein.
After the expiration of the Review Period the Earnest Money Deposit shall be non-refundable, except in the event of a default by Seller.
4. Payment of Purchase Price . The Cash Portion of the Purchase Price shall be paid by Purchaser to the Closing Title Company at Closing, in cash or by current wire transfer of federal funds or other evidence of current funds acceptable to Closing Title Company for immediate disbursement by Closing Title Company to Seller at Closing, the amount of the entire Purchase Price. The balance of the Purchase Price shall be evidenced by the Purchase Loan.
5. | Review . |
(a) Seller agrees that Purchaser shall have until the end of the Review Period in which to review the Due Diligence Materials.
As soon as the same are available to Seller, but by no later than five (5) days after the execution of this Agreement, Seller shall furnish Purchaser the following materials which are in Sellers possession (collectively referred to herein as the Due Diligence Materials):
i. | A copy of all promissory notes, guaranty agreements and collateral documents related to the Loans; |
ii. | A copy of Sellers most current physical reports, such as soils reports, engineering reports and any environmental reports covering the Mortgaged Property (collectively, the Physical Reports); |
iii. | A copy of Sellers most current boundary survey of the Mortgaged Property (collectively, the Survey); and |
iv. | A copy of any appraisals done on the Mortgaged Property relating to the Loans. |
v. | Insurance policies covering the Mortgaged Property. |
vi. | Financial statements of the borrowers and guarantors of the Loans for the previous 24 months. |
vii. | Annual Operating Statements for the Mortgaged Property for the previous 24 months. |
viii. | Rent Rolls for the Mortgaged Property for the previous 24 months. |
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ix. | Such other documents pertaining to the Loans and the Mortgaged Property in Sellers possession, and Seller agrees that Seller will make available Sellers loan files for Purchaser or Purchasers representative to review (the Loan Files). |
(b) On or prior to the expiration of the Review Period, Purchaser shall have the right and privilege, in its sole and arbitrary discretion, to terminate this Agreement by giving written notice thereof to Seller on or prior to the expiration of the Review Period and the Earnest Money previously deposited by Purchaser with the Closing Title Company shall be returned by Closing Title Company to Purchaser, less the option fee set forth in Paragraph 11(f) below, whereupon this Agreement shall automatically be terminated and thereafter neither Seller nor Purchaser shall have any further obligations or liabilities to the other hereunder except as otherwise set forth herein. If Purchaser fails to deliver such written notice to Seller of Purchasers termination of the Agreement on or prior to the expiration of the Review Period, Purchaser shall be deemed to have waived its right to terminate this Agreement pursuant to this Paragraph 5.
(c) During the Review Period, Purchaser shall provide Seller such information as Seller may require in order for Seller to present the request of the Purchase for the Purchase Loan for approval in accordance with the normal loan approval process of Seller. In addition to the provisions above, the Purchase Loan will contain normal and customary terms, covenants and conditions contained in commercial loans extended by Seller. Seller shall have no affirmative obligation to approve the Purchase Loan. In the event the Purchase Loan is not approved by Seller prior to the expiration of the Review Period, Purchaser shall have the right to terminate this Agreement as provided in Paragraph 5(b).
6. | Closing . |
(a) The consummation of the transaction evidenced by this Agreement (the Closing) shall be held on or before the Closing Date at the offices of the Closing Title Company, or at such other date and location as may be agreed to by Seller and Purchaser in writing.
(b) At the Closing, Seller shall furnish and deliver to Closing Title Company for delivery to Purchaser: (i) an assignment of note, loan documents, liens and security instruments for each Loan in form and substance as shown in Exhibit A with all blanks appropriately completed (ii) the original of each executed Note together with the endorsement in form and substance as shown in Exhibit B ; (iii) a transfer of all collateral securing the Loans in form and substance as shown in Exhibit C , together with all fully executed assignment/transfer documentation required by the issuing entity to cause the same to be transferred to Purchaser promptly following the Closing; (iv) the original Loan Documents, including the original mortgagee policies for each Loan; (v) UCC-3 Assignment of Financing Statement forms (the UCC-3) evidencing the assignment to Purchaser of all Sellers right, title and interest in and to any security interests in personal property and fixtures created by the Loan Documents (the Borrower Security Interests) and held by Seller which are in effect on the Closing Date; (v) An executed settlement statement (Closing Statement) prepared by the Closing Title Company, setting for the Purchase Price, closing expenses; (vi) a letter to Borrower in the form of Exhibit D attached hereto (Borrowers Notice) to be delivered to the borrower of each Loan by the Closing Title Company following Closing with the blanks appropriately filled in; and (vii) such other instruments and documents as are reasonably appropriate, necessary and required by the Closing Title Company to complete and evidence the transactions contemplated hereby or to evidence the authority of Seller to consummate the purchase and sale transaction contemplated hereby and to execute and deliver the closing documents. It is agreed between Seller and Purchaser that any Mortgaged Property which is located in Galveston County, Texas (the Non-Collateral Property) shall be released from the Loans, and eliminated from any cross-collateralization provisions of the Loan Documents, in order that the Loan Documents are not secured by any Non-Collateral Property. Purchaser agrees to execute any documents following the Closing as may be reasonably requested by Seller to release the Non-Collateral Property from the liens securing the Loans. This provision shall survive Closing.
(c) At Closing, Purchaser shall deliver to the Closing Title Company for delivery to Seller: (i) the cash payment due in accordance with Paragraph 4 hereof (taking into account the credit for Earnest Money applied towards the Purchase Price) and the other terms and provisions of this Agreement; (ii) the original Loan
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Documents, including the original mortgagee policies for each Loan; (iii) UCC-3 evidencing the assignment of the Borrower Security Interests to Seller; (iv) an executed Closing Statement; (v) the executed documents evidencing the Purchase Loan; and (vi) such other instruments and documents as are reasonably appropriate, necessary and required by Seller or the Closing Title Company to complete and evidence the transaction contemplated hereby or to evidence the authority of Purchaser to consummate the purchase and sale transaction contemplated hereby and to execute and deliver the closing documents.
(d) Seller shall pay the costs of a T-3 title endorsement issued in accordance with Texas Department of Insurance Rule P.9(b)(2) and R-11, and Purchaser shall pay the cost of updating the Environmental Report and the Survey, if such updates are desired by Purchaser. Each party shall pay its own attorneys fees; provided, however, in the event of any litigation arising hereunder, the prevailing party shall be entitled to recover, as part of any judgment rendered, reasonable attorneys fees and costs of suit. Any escrow fee charged by the Title Company shall be shared equally by Seller and Purchaser. Except as otherwise expressly set forth herein, each party hereto shall pay its share of the closing costs which are normally assessed against a seller or purchaser in other transactions similar to the transactions contemplated hereby in the county in which the Mortgaged Property is located.
7. | Representations, Warranties and Covenants of Seller . |
Seller hereby represents and warrants to Purchaser, which representations and warranties shall be deemed made by Seller to Purchaser as of the Effective Date and also as of the Closing Date, that the facts recited below are true and accurate and that if Seller discovers before the Closing Date that one or more of these facts are untrue or inaccurate, then it will inform Purchaser in writing of its discovery before Closing. Purchasers obligation to consummate this transaction is contingent upon the lack of any material variance in the truth and accuracy of all these facts as of the Closing Date, regardless of whether Seller had no knowledge of the untruth or inaccuracy of representations or warranties made to the best of Sellers knowledge. Sellers representations and warranties shall survive Closing except to the extent that Seller gives Purchaser written notice (or Purchaser otherwise obtains actual knowledge) before Closing of the untruth or inaccuracy of any representation of warranty, and Purchaser nevertheless elects to close this transaction. In accordance with the immediately preceding sentences, Seller represents to Purchaser as follows
(a) Authority . Seller represents and warrants to Purchaser that, subject to the terms and provisions hereof, Seller is the owner and holder of the Loans, Seller has full right, power and authority to enter into this Agreement and, at Closing, will have full right, power and authority to consummate the sale provided for herein, all required corporate, partnership or other action necessary to authorize Seller to enter into and to consummate the sale provided herein has been, or upon the Closing will have been, taken, and the joinder of no person or entity other than Seller will be necessary to execute and deliver such documents and instruments at Closing and to perform all of the obligations of Seller hereunder.
(b) No Violation of Law; Binding Obligation. The execution, delivery, and performance of this Agreement and all instruments and other documents to be executed and delivered by Seller in connection herewith do not and will not violate any law, rule, regulation, order, writ, judgment, injunction, decree, determination, or award presently in effect having applicability to Seller. This Agreement constitutes a legal, valid, and binding obligation of Seller enforceable against Seller in accordance with its terms, except as limited by bankruptcy, insolvency, reorganization, moratorium, and other similar laws of general applicability relating to or affecting the enforcement of creditors rights and general equitable principles which may limit the availability of equitable remedies.
(c) Bankruptcy . Seller is not the subject of any petition seeking or acquiescing in any reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar relief under any law relating to bankruptcy or insolvency, nor has any such petition been filed against Seller. No general assignment of Sellers property has been made for the benefit of creditors, and no receiver, master, liquidator or trustee has been appointed for Seller or any of its properties. Seller is not insolvent and the consummation of the transactions contemplated by this Agreement shall not render Seller insolvent.
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(d) Non-Foreign Person . Seller is not a foreign person within the meaning of Sections 1445 and 7701 of the Internal Revenue Code of 1986, as amended.
(e) Owner of Loans. Seller has good title to and is the sole owner and holder of the Notes and the Loans.
(f) Balance of Loans. The outstanding unpaid principal balance of the Loans, unpaid interest, deferred interest and late fees of the Loans and Escrow Accounts for each of the Loans as of May 5, 2011 are as follows:
(i) | $6,975,000.00 SB Harbor Note: |
Unpaid Principal is $5,972,695.88, and unpaid interest, late fees and deferred interest is $565,872.25.
(ii) | $5,000,000.00 SB Harbor Note: |
Unpaid Principal is $5,040,626.00, and unpaid interest, late fees and deferred interest is $480,971.92.
(iii) | $925,985.00 SB Harbor Note: |
Unpaid Principal is $435,397.51, and unpaid interest, late fees and deferred interest is $53,834.75.
(iv) | $2,141,790.00 SB Harbor Note: |
Unpaid Principal is $1,102,009.00, and unpaid interest, late fees and deferred interest is $110,582.39.
(v) | $437,600.00 B. Kastelli Note: |
Unpaid Principal is $437,600.00, and unpaid interest, late fees and deferred interest is $30,157.93.
(vi) | $450,221.00 B. Kastelli Note: |
Unpaid Principal is $450,221.00, and unpaid interest, late fees and deferred interest is $31,027.63.
(vii) | $4,356,000.00 Adriatica Commercial One Note: |
Unpaid Principal is $3,996,540.17, and unpaid interest, late fees and deferred interest is $277,288.29.
(viii) | $250,000.00 Adriatica Commercial One Note: |
Unpaid Principal is $229,280.16, and unpaid interest, late fees and deferred interest is $10,769.39.
(ix) | $3,147,718.00 Adriatica Retail Note: |
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Unpaid Principal is $3,147,718.00, and unpaid interest, late fees and deferred interest is $335,501.07.
(x) | $130,000.00 SB Harbor Note Loan: |
Unpaid Principal is $113,181.95, and unpaid interest, late fees and deferred interest is $13,884.60.
(xi) | $400,000.00 SB Harbor Note Loan: |
Unpaid Principal is $352,020.52, and unpaid interest, late fees and deferred interest is $1,806.21.
(g) Escrow Accounts : As of May 5, 2011, Seller is holding the following escrows (collectively, the Escrow Accounts ), which as of the Effective Date, are in the following amounts:
(A) | $6,975,000.00 SB Harbor Note: |
$0.00 for the purpose of
(B) | $5,000,000.00 SB Harbor Note: |
$0.00 for the purpose of
(C) | $925,985.00 SB Harbor Note: |
$0.00 for the purpose of
(D) | $2,141,790.00 SB Harbor Note: |
$0.00 for the purpose of
(E) | $437,600.00 B. Kastelli Note: |
$0.00 for the purpose of
(F) | $450,221.00 B. Kastelli Note: |
$0.00 for the purpose of
(G) | $4,356,000.00 Adriatica Commercial One Note: |
$1,344.92 for the purpose of taxes
(H) | $250,000.00 Adriatica Commercial One Note: |
$0.00 for the purpose of
(I) | $3,147,718.00 Adriatica Retail Note: |
$33,598.69 for the purpose of taxes
(J) | $130,000.00 SB Harbor Note Loan: |
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$0.00 for the purpose of
(K) | $400,000.00 SB Harbor Note Loan: |
$0.00 for the purpose of
(h) As of the date of Sellers execution and delivery of this Agreement, there have been no monetary defaults under the Loans except as follows:
(A) $6,975,000.00 SB Harbor Note: Due for the July 14, 2010 payment and all subsequent payments.
(B) $5,000,000.00 SB Harbor Note: Due for the July 5, 2010 payment and all subsequent payments.
(C) $925,985.00 SB Harbor Note: Due for the August 27, 2010 payment and all subsequent payments.
(D) $2,141,790.00 SB Harbor Note: Due for the August 15, 2010 payment and all subsequent payments.
(E) $437,600.00 B. Kastelli Note: NONE
(F) $450,221.00 B. Kastelli Note: NONE
(G) $4,356,000.00 Adriatica Commercial One Note: NONE
(H) $250,000.00 Adriatica Commercial One Note: NONE
(I) $3,147,718.00 Adriatica Retail Note: NONE
(J) $130,000.00 SB Harbor Note: Due for the July 14, 2010 payment and all subsequent payments.
(K) $400,000.00 SB Harbor Note: Due for the May 1, 2011 payment.
(i) No Modification. Except by written instrument or other written documentation listed on Schedules 1 through 12 , the Loan Documents have not been modified, amended, supplemented, canceled, released, or terminated in whole or in part nor has any lien or security interest securing the Loans been subordinated, released, or canceled. The Notes, Deed of Trusts, and all other Loan Documents are true and correct copies of the documents they purport to be.
(j) Offsets. Seller has not received any written notice, and Seller is not aware of any facts, events, or circumstances that could give rise to a claim for offset or counterclaim by any obligor under the Loan Documents.
(k) Lien Priority . Except as reflected in the Due Diligence Materials Seller has a first lien security interest and deed of trust lien into the collateral securing the Loans and the outstanding UCC-1
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Financing Statements are current and have been renewed.
(l) Review File. The Review File contains true, correct, and complete copies of the Loan Documents, and it complete with regard to all items and documents other than the Loan Documents, it being acknowledged that certain tracts of collateral securing the Loans have been released from time to time.
(m) Litigation. There is no litigation, proceeding, or governmental investigation pending or threatened, or any order, injunction, or decree outstanding, existing, or relating to the Loans.
(n) OFAC. Seller is not a person or entity described by Section 1 of the Executive Order (No. 13,224) Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism, 66 Fed. Reg. 49,079 (September 25, 2001), and does not engage in any dealings or transactions, and is not otherwise associated, with any of those persons or entities.
(o) EXCEPT AS SET FORTH IN THIS AGREEMENT, IT IS UNDERSTOOD AND AGREED THAT SELLER IS NOT MAKING ANY WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EXPRESS OR IMPLIED, WITH RESPECT TO THE LOANS OR THE MORTGAGED PROPERTY, INCLUDING, BUT NOT LIMITED TO, NO WARRANTIES OR REPRESENTATIONS AS TO MATTERS OF TITLE (OTHER THAN SELLERS WARRANTY OF TITLE SET FORTH IN THE SPECIAL WARRANTY DEED TO BE DELIVERED AT CLOSING), ZONING, TAX CONSEQUENCES, PHYSICAL OR ENVIRONMENTAL CONDITION, OPERATING HISTORY OR PROJECTIONS, VALUATION, GOVERNMENTAL APPROVALS, GOVERNMENTAL REGULATIONS OR ANY OTHER MATTER OR THING RELATING TO OR AFFECTING THE MORTGAGED PROPERTY. PURCHASER WILL CONDUCT SUCH INSPECTIONS AND INVESTIGATIONS OF THE MORTGAGED PROPERTY, INCLUDING, BUT NOT LIMITED TO, THE PHYSICAL AND ENVIRONMENTAL CONDITIONS THEREOF, AND RELY UPON SAME, AND, UPON CLOSING, SHALL ASSUME THE RISK THAT ADVERSE MATTERS, INCLUDING, BUT NOT LIMITED TO, ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONS, MAY NOT HAVE BEEN REVEALED BY PURCHASERS INSPECTIONS AND INVESTIGATIONS. PURCHASER AGREES TO TAKE WHATEVER ACTION AND PERFORM WHATEVER INVESTIGATIONS AND STUDIES PURCHASER DEEMS NECESSARY TO SATISFY ITSELF AS TO THE CONDITION OF THE MORTGAGED PROPERTY AND THE EXISTENCE OR NONEXISTENCE OF, OR CURATIVE ACTION TO BE TAKEN WITH RESPECT TO, ANY HAZARDOUS AND/OR TOXIC SUBSTANCES ON OR DISCHARGED FROM THE MORTGAGED PROPERTY. PURCHASER ACKNOWLEDGES AND AGREES THAT UPON CLOSING SELLER SHALL SELL AND CONVEY TO PURCHASER AND PURCHASER SHALL ACCEPT THE MORTGAGED PROPERTY AS IS, WHERE IS, WITH ALL FAULTS AND THERE ARE NO ORAL AGREEMENTS, WARRANTIES OR REPRESENTATIONS, COLLATERAL TO OR AFFECTING THE MORTGAGED PROPERTY BY SELLER OR ANY THIRD PARTY EXCEPT AS SET FORTH IN THIS AGREEMENT,. WAIVER OF CONSUMER RIGHTS: PURCHASER, AFTER CONSULTATION WITH AN ATTORNEY OF ITS OWN SELECTION (WHICH COUNSEL WAS NOT DIRECTLY OR INDIRECTLY IDENTIFIED, SUGGESTED OR SELECTED BY SELLER OR ANY AGENT OF SELLER) HEREBY VOLUNTARILY WAIVES ITS RIGHTS UNDER THE DECEPTIVE TRADE PRACTICES ACT (15O.S. SECTION 753 ET SEQ.), A LAW THAT GIVES CONSUMERS SPECIAL RIGHTS AND PROTECTIONS. PURCHASER HEREBY ACKNOWLEDGES TO SELLER THAT PURCHASER AND SELLER ARE NOT IN A SIGNIFICANTLY DISPARATE BARGAINING POSITION. THE TERMS AND CONDITIONS OF THIS PARAGRAPH SHALL EXPRESSLY SURVIVE THE CLOSING AND NOT MERGE THEREIN.
8. Representations and Warranties of Purchaser . Purchaser represents, warrants and covenants to Seller that Purchaser has full right, power and authority to enter into this Agreement and, at Closing, will have full right, power and authority to consummate the sale provided for herein, all required corporate, partnership or other action necessary to authorize Purchaser to enter into and to consummate the purchase provided herein has been, or upon the Closing will have been, taken, and the joinder of no person or entity other than Purchaser will be necessary to execute and deliver such documents and instruments at Closing and to perform all of the obligations
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of Purchaser hereunder. Purchaser represents and warrants to Seller that Purchaser will not contact or communicate with any party obligated to, or related to any of the obligors of the Loans without the prior written consent of Seller.
9. Assignment . Other than an assignment to a wholly owned subsidiary of Purchaser, which shall be jointly liable with Purchaser for repayment of the Purchase Loan, Purchaser may not assign this Agreement or any of its rights hereunder without the express prior written consent of Seller, which will not be unreasonably withheld, provided Purchaser remains liable for the repayment of the obligations of the Purchase Loan as provided in this Agreement.
10. | Defaults and Remedies . |
(a) | Sellers Defaults; Purchasers Remedies . |
(i) | Sellers Defaults . Seller shall be deemed to be in default hereunder in the event that Seller shall fail to meet, comply with, or perform any covenant, agreement or obligation on its part required within the time limits and in the manner required in this Agreement for any reason other than a default by Purchaser hereunder or termination of this Agreement by either Seller or Purchaser pursuant to the terms and provisions hereof, and such failure shall continue for ten (10) days after Sellers receipt of written notice of such default from Purchaser. |
(ii) | Purchasers Remedies . In the event Seller shall be deemed to be in default hereunder, Purchaser may, as Purchasers sole and exclusive remedy for such default, at Purchasers option, do either of the following: |
(A) | Terminate this Agreement by written notice delivered to Seller on or before the earlier to occur of (1) the time period specifically set forth in any Paragraph of this Agreement with respect to the particular default in question, or (2) the Closing, whereupon (i) all Earnest Money previously deposited by Purchaser with the Closing Title Company shall promptly be returned to Purchaser, less the option fee specified in Paragraph 11(f) hereof and the parties hereto shall have no further liabilities or obligations to the other hereunder, except as otherwise expressly set forth herein; or |
(B) | Enforce specific performance of this Agreement against Seller. |
(b) | Purchasers Default; Sellers Remedies . |
(i) | Purchasers Default . Purchaser shall be deemed to be in default hereunder in the event that Purchaser shall fail to meet, comply with or perform any covenant, agreement or obligation on its part required within the time limits and in the manner required in this Agreement for any reason other than a default by Seller hereunder or termination of this Agreement by either Seller or Purchaser pursuant to the terms and provisions hereof, and such failure shall continue for ten (10) days after Purchasers receipt of written notice of such default from Seller |
(ii) | Sellers Remedies . In the event Purchaser shall be deemed to be in default hereunder, Seller may, as Sellers sole and exclusive remedy: |
(A) | terminate this Agreement by written notice delivered to Purchaser whereupon Seller shall be entitled to receive (and Closing Title Company is hereby authorized and directed to deliver to Seller, without further direction) the Earnest Money, it being agreed between Purchaser and Seller that such sum shall be liquidated damages (and not a penalty) for such default of Purchaser hereunder because of the difficulty, inconvenience, and uncertainty of ascertaining actual damages for such default, and upon the delivery by the Closing Title Company to Seller of the Earnest Money the parties hereto shall have no further liabilities or obligations to the other hereunder, except as otherwise expressly set forth herein. |
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11. | Miscellaneous . |
(a) Notices . Any notices, consents or other communications required or permitted to be given pursuant to this Agreement must be in writing and must be given by hand delivery, facsimile transmission, overnight delivery service, or certified mail (postage prepaid, return receipt requested), and shall (except to the extent otherwise expressly provided herein) be deemed to have been given and received (whether actually received or not) when a letter containing such notice, consent or other communication is received; however, any written notice that is sent via hand delivery by a reputable courier service (such as @Couriers), a reputable overnight delivery service (such as federal express) or deposited in the Unites States mail, postage prepaid, certified return receipt requested shall be deemed delivered on the date such notice, consent or communication is deposited with such reputable courier service, overnight courier or post office. Any such notice, consent or other communication must be sent via facsimile transmission or hand delivery (by local or overnight courier) and addressed to the parties hereto at the respective addresses for such parties set forth in paragraph 1 hereof, or to such other substitute address and/or addressee as any party hereto shall designate by written notice to the other party in accordance with the terms of this Paragraph 11(a); provided, however, that no such notice of change of address and/or addressee shall be effective unless and until actually received by the party to whom such notice is sent.
(b) Entire Agreement; Modifications . This Agreement embodies and constitutes the entire understanding between the parties with respect to the transactions contemplated herein, and all prior or contemporaneous agreements, understandings, representations and statements (oral or written) are merged into this Agreement. Neither this Agreement nor any provision hereof may be waived, modified, amended, discharged or terminated except by an instrument in writing signed by the party against whom the enforcement of such waiver, modification, amendment, discharge or termination is sought, and then only to the extent set forth in such instrument.
(c) Applicable Law . THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. THIS AGREEMENT IS PERFORMABLE AND VENUE FOR ANY ACTION HEREUNDER SHALL BE IN COLLIN COUNTY, TEXAS.
(d) Captions . The captions in this Agreement are inserted for convenience of reference only and in no way define, describe, or limit the scope or intent of this Agreement or any of the provisions hereof.
(e) Binding Effect . This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, executors, administrators, legal representatives, successors and permitted assigns.
(f) Irrevocable Option . To the extent that this Agreement is ever construed as an option agreement, Seller and Purchaser hereby acknowledge that independent consideration for such option in the sum of $100.00 shall be delivered to Seller out of the Earnest Money should this Agreement terminate for any reason whatsoever excepting the Closing of this Agreement, in which event said option consideration shall be applied to the Purchase Price; and based on such consideration and the mutual covenants of Seller and Purchaser contained herein, Seller hereby agrees that any such option granted Purchaser is irrevocable and Seller shall not terminate said option without the prior written consent of Purchaser except as may be expressly provided for herein.
(g) Exclusivity . Purchaser and Seller agree that Seller will cease all negotiations with all other parties, other than the makers, guarantors or obligors of the Loans, and that Purchaser has the exclusive right to negotiate with Seller for the purchase of the Loans in good faith for a period commencing upon the date of execution of this Agreement and ending upon the expiration of the Review Period.
(h) Confidentiality . Until the Closing shall have been completed, no provision of this Agreement shall be disclosed by either party to this Agreement to any other person or party without the express prior written consent of the other party to this Agreement except as provided in this paragraph 11(h). The terms and existence
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of this Agreement shall be confidential, and shall not he disclosed to any party without the prior written consent of each party to this Agreement, other than to (i) employees, officers, and directors (including those of its affiliates); or (ii) agents and representatives, including attorneys, accountants, third party service providers and financial advisors (collectively, the Qualified Person), each of whom shall have a need to know the Confidential Information for the purpose set forth in this Agreement. Such party shall inform each such Qualified Person of the requirements of this Agreement, the confidentiality of the information and shall require each such Qualified Person to comply with the terms hereof. The parties acknowledge that the confidentiality obligations set forth in this Paragraph 11(h) are material considerations for the parties to enter into this Agreement.
(i) Time is of the Essence . With respect to all provisions of this Agreement, time is of the essence; provided, however, if the final date of any period set forth herein (including, but not limited to, the Closing Date) falls on a Saturday, Sunday or legal holiday under the laws of the State of Texas or the United States of America, the final date of such period shall be extended to the next day that is not a Saturday, Sunday or legal holiday. The term days as used herein shall mean calendar days, with the exception of business days, which term shall mean each day except for any Saturday, Sunday or legal holiday under the laws of the State of Texas or United States of America.
(j) Date of Agreement . All references to the date of this Agreement or similar references as used herein shall be deemed to mean the later of the two dates on which this Agreement is signed by the Seller or Purchaser, as indicated by their signatures below, which later date shall be the date of final execution and agreement by the parties hereto.
(k) Attorneys Fees . If either party shall employ an attorney to enforce or define the rights of such party hereunder, the prevailing party shall be entitled to recover reasonable attorneys fees and costs of suit.
(l) Partial Invalidity . If any term, provision, condition or covenant of this Agreement or the application thereof to any party or circumstance shall, to any extent, be held invalid or unenforceable, the remainder of this Agreement, or the application of such term, provision, condition or covenant to persons or circumstances other than those as to whom or which it is held invalid or unenforceable, shall not be affected thereby, and each term and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law, and said invalid or unenforceable term, provision, condition or covenant shall be substituted by a term, provision, condition or covenant as near in substance as may be valid and enforceable.
(m) Brokerage Commissions . Each party hereto represents to the other than it has not authorized any broker or finder to act on its behalf in connection with the sale and purchase transaction contemplated hereby and that it has not dealt with any broker or finder purporting to act for any other party. Each party hereto agrees to indemnify and hold harmless the other party from and against any and all liabilities, costs, damages and expenses of any kind or character arising from any claims for brokerage or finders fees, commissions or other similar fees in connection with the transactions covered by this Agreement insofar as such claims shall be based upon alleged arrangements or agreements made by such party or on its behalf, which indemnity shall (notwithstanding anything to the contrary contained or implied elsewhere in this Agreement) expressly survive any termination or Closing of this Agreement.
(n) Counterparts . This Agreement may be executed in several counterparts, each of which shall be deemed an original, and all of which counterparts together shall constitute one and the same instrument.
(o) Survival of Terms . Any and all warranties, representations, covenants, and agreements set forth herein shall not, except to the extent contained in any document executed and delivered at Closing, survive Closing.
[Signature Blocks are on the Next Page]
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IN WITNESS WHEREOF, each of the parties hereto has signed and executed this Agreement or has caused the same to be signed and executed by its authorized representatives.
Signed and delivered this 6th day of May, 2011.
SELLER : | ||
FIRST UNITED BANK AND TRUST COMPANY | ||
BY: /s/ G. Massey | ||
NAME: Greg Massey | ||
TITLE: President/CEO |
Signed and delivered this day of May, 2011.
PURCHASER : | ||
INDEPENDENT BANK GROUP, INC. | ||
BY: /s/ D.R. Brooks | ||
NAME: David Brooks | ||
TITLE: Chairman and CEO |
The undersigned hereby acknowledges the receipt from Purchaser of the $50,000.00 Earnest Money and a fully executed copy of this Agreement this day of , 2011, and agrees to comply with all of the terms hereof, including, but not limited to, those regarding such Earnest Money deposited with the undersigned pursuant to the terms and provisions hereof.
CLOSING TITLE COMPANY : |
||
REUNION TITLE COMPANY |
||
BY: |
NAME: |
TITLE: |
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EXHIBIT A
ASSIGNMENT OF NOTE, LOAN DOCUMENTS,
LIENS AND SECURITY INSTRUMENTS
Effective Date: , 2011
Holder of Note and Loan Documents: |
FIRST UNITED BANK AND TRUST COMPANY |
Holders Mailing Address: P.O. Box 130 | ||||
Durant, Oklahoma 74702-0130 Bryan County, Oklahoma |
Transferee: INDEPENDENT BANK GROUP, INC.
Transferees Mailing Address: |
1600 Redbud Boulevard, Suite 400 | |||
McKinney, Texas 75070 Collin County, Texas |
Commercial Promissory Note (the Note):
Commercial Deed of Trust dated , executed by Borrower in favor of Greg Massey, Trustee, for the benefit of Holder, recorded under Document Number of the Official Public Records of County, Texas, as more particularly described on Schedule 1 (the Deed of Trust), and the lien created by the Deed of Trust and any other Loan Document (as defined below) are collectively referred to herein as the Lien.
As of the date of this Assignment, Holder represents and warrants that the unpaid principal balance of the Note is $ and the accrued and unpaid interest outstanding upon the Note is $ .
The Note, Deed of Trust, any loan agreement, guaranty, security interests, collateral assignments, and all other loan documents benefiting Holder of the Loan Documents regarding the Note are described in the documents itemized in Schedule 1, attached hereto and made a part hereof for all purposes (collectively the Loan Documents).
Property (including any improvements) subject to the Lien:
SEE EXHIBIT A ATTACHED HERETO AND MADE A PART HEREOF
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FOR ALL PURPOSES.
Prior Lien(s): NONE.
For value received, Holder of Loan Documents assigns, sells, conveys, delivers, endorses and transfers, the Note, Lien, the Loan Documents and the indebtedness evidenced by the Loan Documents (the Debt) (collectively, the Assigned Property) to Transferee, its successors and assigns forever, and warrants that it is the legal owner and holder of the Assigned Property, and represents that the unpaid principal and interest on the Note are correctly stated.
This transfer is without warranty (except as provided above or in the Purchase and Sale Agreement dated by and between Holder and Transferee (the Loan Purchase Agreement) or recourse on Holder of Note and Loan Documents.
Holder of Note and Loan Documents expressly waives and releases all present and future rights to establish or enforce the liens described in this instrument as security for payment of any future or other indebtedness. Holder of the Note and Loan Documents agrees to execute and endorse any and all documents and to take any and all actions as Transferee may reasonably request to effectuate the assignment contemplated hereby.
It is understood and agreed that, by Transferees execution hereof, Transferee hereby assumes and agrees to pay and perform all of the terms, covenants, conditions, and obligations of the Holder under or with respect to the Assigned property arising or accruing on or after the date of this Assignment of Note and Liens, and agrees to indemnify and hold Holder harmless from and against any claims, costs or liabilities in connection therewith arising or accruing on or after the date of this Assignment of Note and liens. Holder agrees to indemnify and hold Transferee harmless from and against any claims, costs, or liability in connection with the Assigned Property prior to the date of this Assignment of Note and liens. Holder agrees to indemnify and hold Transferee harmless from and against any claims, costs or liabilities that arise in connection with a breach of the presentations and warranties of Holder in this Assignment of note and Liens are in the Agreement. In the event Holder is required to indemnify Transferee pursuant to this Assignment, Holder shall have the sole right and privilege to engage counsel satisfactory to Holder, in Holders sole discretion, to undertake such indemnification. Transferee agrees not to satisfy, compromise, or otherwise pay any claim for which indemnification will be sought from Holder without the prior written authorization of Holder.
Transferee agrees to indemnify and hold Holder harmless from and against any claims, costs or liabilities that arise in connection with a breach of the presentations and warranties of Transferee in this Assignment of note and Liens are in the Agreement. In the event Transferee is required to indemnify Holder pursuant to this Assignment, Transferee shall have the sole right and privilege to engage counsel satisfactory to Transferee, in Transferees sole discretion, to undertake such indemnification. Holder agrees not to satisfy, compromise, or otherwise pay any claim for which indemnification will be sought from Transferee without the prior written authorization of Transferee.
When the context requires, singular nouns and pronouns include the plural.
Page 18
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
Page 19
HOLDER: |
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FIRST UNITED BANK AND TRUST |
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COMPANY |
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BY: |
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NAME: |
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TITLE: |
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TRANSFEREE: |
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BY: |
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NAME: |
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TITLE: |
Page 20
SCHEDULE 1 TO
ASSIGNMENT OF NOTE, LOAN DOCUMENTS,
LIENS AND SECURITY INSTRUMENTS
(Loan Documents)
1)
2)
3)
4)
5)
6)
7)
8)
9)
10)
Page 21
EXHIBIT A TO
ASSIGNMENT OF NOTE, LOAN DOCUMENTS,
LIENS AND SECURITY INSTRUMENTS
LEGAL DESCRIPTION
Page 22
EXHIBIT B | ||||
ALLONGE TO PROMISSORY NOTE (the Note) | ||||
DATED , | ||||
IN THE ORIGINAL PRINCIPAL SUM OF $ , | ||||
EXECUTED BY | ||||
|
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AND PAYABLE TO THE ORDER OF | ||||
FIRST UNITED BANK AND TRUST COMPANY |
Pay to the order of , without recourse and without warranty, except as provided in that certain Loan Purchase and Sale Agreement dated May , 2011, this day of , 2011.
FIRST UNITED BANK AND TRUST
COMPANY
BY: |
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NAME: |
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TITLE: |
Page 23
EXHIBIT C
TRANSFER OF LIEN
Conforms to State Bar of Texas Form
NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION FROM THIS INSTRUMENT BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVERS LICENSE NUMBER.
Date: , 201l
Note: | ||||
Date: | ||||
Original Amount: | ||||
Maker: | ||||
Payee: First United Bank and Trust Company | ||||
Note and Lien Are Described in the Following Documents: |
Deed of Trust executed by , to Greg Massey, Trustee for the benefit of First United Bank and Trust Company, dated , filed under Document Number of the Official Public Records of County, Texas, securing First United Bank and Trust Company in the payment of one note of even date therewith in the principal sum of ($ ), due and payable and bearing interest as therein provided. |
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Property (including any improvements) Subject to Lien: | ||||
SEE EXHIBIT A ATTACHED HERETO AND MADE A PART HEREOF FOR ALL PURPOSES. |
Prior Lien(s) (including recording information): None
Page 24
For value received Holder of the Note and Lien transfers them to Transferee, warrants that it is the legal owner and holder of the Note and Lien, and represents that the unpaid principal and interest on the Note are correctly stated.
This transfer is without warranty (except as provided above or in the Purchase and Sale Agreement dated by and between Holder and Transferee (the Loan Purchase Agreement)) or recourse on the Holder of the note and lien.
When the context requires, singular nouns include the plural.
FIRST UNITED BANK AND TRUST COMPANY | ||
BY: |
NAME: |
TITLE: |
STATE OF |
COUNTY OF |
This instrument was acknowledged before me on this day of , 2011, by , of FIRST UNITED BANK AND TRUST COMPANY, on behalf of said FIRST UNITED BANK AND TRUST COMPANY.
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NOTARY PUBLIC-STATE OF |
AFTER RECORDING RETURN TO: |
PREPARED IN THE LAW OFFICE OF: | |||||
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Page 25
EXHIBIT A
TO TRANSFER OF LIEN
LEGAL DESCRIPTION
Page 26
EXHIBIT D
SELLERS LETTER TO BORROWER
[Sellers Letterhead]
[DATE]
Certified Mail
Return Receipt Requested
(Borrowers Address)
Re: | Loan to ( Borrower ) in the amount of $ (the Loan ), evidenced by that certain Promissory Note (the Note ) dated , 20 , in the original amount of $ , executed by Borrower and payable to the order of ( Lender ), which Note is secured by a deed of trust of even date therewith from Borrower to , Trustee (the Deed of Trust ) for the benefit of Lender, recorded under Document Number of the Real Property Records, County, Texas |
Dear :
This letter is to inform you that on this date, Lender has sold all of its right, title and interest in the Note and has transferred all of the liens, security interests and other rights and interests arising under the Deed of Trust and all of the other loan documents evidencing the Loan (collectively, the Loan Documents ) to [Name of Purchaser] ( Purchaser ). Accordingly, you are hereby directed to forward all future payments under the Note, including but not limited to installments of principal and interest thereunder, to Purchaser at the address provided below. You are further directed to deliver to Purchaser any and all notices which you are required to deliver pursuant to the Note or the Deed of Trust or any of the other Loan Documents.
The mailing address of Purchaser is as follows:
Thank you for your cooperation in this matter.
Very truly yours, |
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[Name of Seller] |
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By: |
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Name: |
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Title: |
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Page 27
Page 28
Schedule 1
$6,975,000.00 SB Harbor Loan Documents
1) | Promissory Note dated May 14, 2007 in the original principal amount of $6,975,000.00 |
2) | Deed of Trust dated May 14, 2007 recorded under Document Number 20080912001101930 of the Official Public Records of Collin County, Texas |
3) | Commercial Interim Construction Loan Agreement dated May 14, 2007 |
4) | Assignment of Leases and Rents dated May 14, 2007 recorded under Document Number 20070517000664900 of the Official Public Records of Collin County, Texas |
5) | Commercial Guaranty Agreements executed by Jeffory D. Blackard and Blackard Group, Inc., a Texas corporation dated May 14, 2007 |
6) | Modification Agreement executed by Borrower dated May 14, 2008 recorded under Document Number 20080528000641070 of the Official Public Records of Collin County, Texas |
7) | Modification Agreement executed by Borrower dated September 14, 2008 recorded under Document Number 20081029001272500 of the Official Public Records of Collin County, Texas |
8) | Modification Agreement executed by Borrower dated November 14, 2008 recorded under Document Number 20081124001361510 of the Official Public Records of Collin County, Texas |
9) | Modification Agreement executed by Borrower dated January 14, 2009 recorded under Document Number 20090219000187160 of the Official Public Records of Collin County, Texas |
10) | Modification Agreement executed by Borrower dated March 14, 2009 recorded under Document Number 20090513000578000 of the Official Public Records of Collin County, Texas |
11) | Modification Agreement executed by Borrower dated June 14, 2009 recorded under Document Number 20090708000850520 of the Official Public Records of Collin County, Texas |
12) | Modification Agreement executed by Borrower dated January 14, 2009 recorded under Document Number 20100120000060630 of the Official Public Records of Collin County, Texas |
Page 29
Schedule 2
$5,000,000.00 SB Harbor Loan Documents
1) | Promissory Note dated April 5, 2005 in the original principal sum of $6,500,000.00 |
2) | Deed of Trust dated April 5, 2005 recorded under Document Number 2005-0045659 of the Official Public Records of Collin County, |
3) | Loan Agreement with Construction Addendum dated April 5, 2005 |
4) | Commercial Guaranty Agreements executed by Jeffory D. Blackard and Blackard Group, Inc., a Texas corporation dated April 5, 2005 |
5) | Security Agreement covering Construction dated April 5, 2005 |
6) | UCC-1 Financing Statement covering Construction filed in the office of the Texas Secretary of State |
7) | Collateral Assignment of Lot Purchase Contracts dated April 5, 2005 |
8) | Modification Agreement executed by Borrower dated April 5, 2008 recorded under Document Number 20080611000709040 of the Official Public Records of Collin County, Texas |
9) | Modification Agreement executed by Borrower dated January 5, 2009 recorded under Document Number 20100120000060650 of the Official Public Records of Collin County, Texas |
Page 30
Schedule 3
$925,985.00 SB Harbor Loan Documents
1) | Promissory Note dated March 27, 2008, in the original principal sum of $925,985.00 |
2) | Deed of Trust dated March 27, 2008 recorded under Document Number 20080402000391290 of the Official Public Records of Collin County |
3) | Commercial Interim Construction Loan Agreement dated March 27, 2008 |
4) | Commercial Guaranty Agreements executed by Jeffory D. Blackard and Blackard Group, Inc., a Texas corporation dated March 27, 2008 |
5) | Assignment of Leases and dated March 27, 2008 recorded under Document Number 20080402000391300 of the Official Public Records of Collin County, Texas |
6) | Assignment of Life Insurance Policy Number 18166501 issued by The Northwestern Mutual Life Insurance Company insuring the life of Jeffory D. Blackard |
7) | Modification Agreement executed by Borrower dated March 27, 2009 recorded under Document Number 20090421000459050 of the Official Public Records of Collin County, Texas |
8) | Modification Agreement executed by Borrower dated January 27, 2009 recorded under Document Number 20100120000060640 of the Official Public Records of Collin County, Texas |
Page 31
Schedule 4
$2,141,790.00 SB Harbor Loan Documents
1) | Promissory note dated August 15, 2006, in the original principal sum of $2,141,790.00 |
2) | Deed of Trust dated August 15, 2006 recorded under Document Number 20060816001176770 of the Official Public Records of Collin County, Texas |
3) | Deed of Trust dated August 15, 2006 recorded under Document Number 20060816001176780 of the Official Public Records of Collin County, Texas |
4) | Commercial Guaranty Agreements executed by Jeffory D. Blackard and Blackard Group, Inc., a Texas corporation, dated August 15, 2006 |
5) | Modification Agreement executed by Borrower dated August 15, 2008 recorded under Document Number 20081003001186050 of the Official Public Records of Collin County, Texas |
6) | Modification Agreement executed by Borrower dated January 15, 2009 recorded under Document Number 20100120000060620 of the Official Public Records of Collin County, Texas |
Page 32
Schedule 5
$437,600.00 B. Kastelli Loan Documents
1) | Promissory note dated January 12, 2007 in the original principal sum of $437,600.00 |
2) | Deed of Trust dated January 12, 2007 recorded under Document Number 20070122000090300 of the Official Public Records of Collin County, Texas |
3) | Commercial Interim Construction Loan Agreement dated January 12, 2007 |
4) | Commercial Guaranty Agreements executed by Jeffory D. Blackard and Blackard Group, Inc., a Texas corporation dated January 12, 2007 |
5) | Modification Agreement dated January 12, 2008 executed by Borrower and recorded under Document Number 20080207000152930 of the Official Public Records of Collin County, Texas |
6) | Modification Agreement dated July 12, 2008 executed by Borrower and recorded under Document Number 20080805000947630 of the Official Public Records of Collin County, Texas |
7) | Modification Agreement dated January 12, 2009 executed by Borrower and recorded under Document Number 20090220000192320 of the Official Public Records of Collin County, Texas |
8) | Modification Agreement dated March 12, 2009 executed by Borrower and recorded under Document Number 20090421000459070 of the Official Public Records of Collin County, Texas |
Page 33
Schedule 6
$450,221.00 B. Kastelli Loan Documents
1) | Promissory note dated January 12, 2007, in the original principal sum of $450,221.00 |
2) | Deed of Trust dated January 12, 2007 recorded under Document Number 20070122000089930 of the Official Public Records of Collin County, Texas |
3) | Commercial Interim Construction Loan Agreement dated January 12, 2007 |
4) | Commercial Guaranty Agreements executed by Jeffory D. Blackard and Blackard Group, Inc., a Texas corporation dated January 12, 2007 |
5) | Modification Agreement dated January 12, 2008 executed by Borrower and recorded under Document Number 20080207000152370 of the Official Public Records of Collin County, Texas |
6) | Modification Agreement dated July 12, 2008 executed by Borrower and recorded under Document Number 20080805000947610 of the Official Public Records of Collin County, Texas |
7) | Modification Agreement dated January 12, 2009 executed by Borrower and recorded under Document Number 20090220000192310 of the Official Public Records of Collin County, Texas |
8) | Modification Agreement dated March 12, 2009 executed by Borrower and recorded under Document Number 20090421000459060 of the Official Public Records of Collin County, Texas |
9) | Modification Agreement dated January 12, 2009 executed by Borrower and recorded under Document Number 20100119000056980 of the Official Public Records of Collin County, Texas |
Page 34
Schedule 7
$ 4,356,000.00 Adriatica Commercial One Loan Documents
1) | Promissory note dated November 17, 2005, in the original principal sum of $4,356,000.00 |
2) | Deed of Trust dated November 17, 2005 recorded in Volume 06051, Page 02528 of the Official Public Records of Collin County, Texas |
3) | Assignment of Leases and Rents dated November 17, 2005 recorded in Volume 06051, Page 02544 of the Official Public Records of Collin County, Texas |
4) | Loan Agreement with Construction Addendum dated November 17, 2005 |
5) | Security Agreement covering Equipment dated November 17, 2005 |
6) | UCC-1 Financing Statement covering Equipment filed in the office of the Texas Secretary of State |
7) | Commercial Guaranty Agreements executed by Jeffory D. Blackard and Blackard Group, Inc., a Texas corporation dated November 17, 2005 |
8) | Modification Agreement dated November 17, 2006 executed by Borrower recorded under Document Number 20061226001804760 of the Official Public Records of Collin County, Texas |
9) | Modification Agreement dated April 17, 2009 executed by Borrower recorded under Document Number 20090529000652560 of the Official Public Records of Collin County, Texas |
10) | Modification Agreement dated January 17, 2009 executed by Borrower recorded under Document Number 20100119000056400 of the Official Public Records of Collin County, Texas |
Page 35
Schedule 8
$250,000.00 Adriatica Commercial One Loan Documents
1) | Promissory note dated December 14, 2006, in the original principal sum of $250,000.00 |
2) | Deed of Trust dated December 14, 2006 recorded under Document Number 20061220001789790 of the Official Public Records of Collin County, Texas |
3) | Assignment of Leases and Rents dated December 14, 2006 recorded under Document Number 20061220001789800 of the Official Public Records of Collin County, Texas |
4) | Loan Agreement with Construction Addendum dated December 14, 2006 |
5) | Security Agreement covering Equipment dated December 14, 2006 |
6) | UCC-1 Financing Statement covering Equipment filed in the office of the Texas Secretary of State |
7) | Commercial Guaranty Agreements executed by Jeffory D. Blackard and Blackard Group, Inc., a Texas corporation dated December 14, 2006 |
8) | Modification Agreement dated April 17, 2009 executed by Borrower recorded under Document Number 20090529000652570 of the Official Public Records of Collin County, Texas |
9) | Modification Agreement dated January 17, 2009 executed by Borrower recorded under Document Number 20100119000056390 of the Official Public Records of Collin County, Texas |
Page 36
Schedule 9
$3,147,718.00 Adriatica Retail Loan Documents
1) | Promissory note dated April 4, 2007, in the original principal sum of $3,147,718.00 |
2) | Deed of trust dated April 4, 2007 recorded under Document Number 0070419000526360 of the Official Public Records of Collin County, Texas |
3) | Assignment of Leases and Rents dated April 4, 2007 recorded under Document Number 20073419000526370 of the Official Public Records of Collin County, Texas |
4) | Loan Agreement with Construction Addendum dated April 4, 2007 |
5) | Commercial Guaranty Agreements executed by Jeffory D. Blackard and Blackard Group, Inc., a Texas corporation dated April 4, 2007 |
6) | Modification Agreement executed by Borrower dated May 4, 2008 recorded under Document Number 20080528000641060 of the Official Public Records of Collin County, Texas |
7) | Modification Agreement executed by Borrower dated October 4, 2008 recorded under Document Number 20081016001231560 of the Official Public Records of Collin County, Texas |
8) | Modification Agreement executed by Borrower dated December 4, 2008 recorded under Document Number 20081224001448770 of the Official Public Records of Collin County, Texas |
9) | Modification Agreement executed by Borrower dated February 4, 2009 recorded under Document Number 20090303000236050 of the Official Public Records of Collin County, Texas |
10) | Modification Agreement executed by Borrower dated January 4, 2009 recorded under Document Number 20100119000056380 of the Official Public Records of Collin County, Texas |
Page 37
Schedule 10
$130,000.00 SB Harbor Documents
1) | Promissory note dated January 14, 20l0, in the original principal sum of $130,000.00 |
2) | Deed of Trust dated January 14, 2010 recorded under Document Number 20100120000060460 of the Official Public Records of Collin County, Texas |
3) | Loan Agreement dated January 14, 2010 |
4) | Commercial Guaranty Agreements executed by JEFFORY D. BLACKARD and BLACKARD GROUP, INC., a Texas corporation dated January 14, 2010 |
5) | Modification Agreement executed by Borrower dated April 14, 2010 recorded under Document Number 20100604000568820 of the Official Public Records of Collin County, Texas |
Page 38
Schedule 11
$400,000.00 SB Harbor Documents
1) | Promissory note dated April 1, 2011, in the original principal sum of $400,000.00 |
2 | Deed of Trust dated April 1, 2011 recorded under Document Number of the Official Public Records of Collin County, Texas and Galveston County, Texas |
3) | Loan Agreement dated April 1, 2011 |
4) | Commercial Guaranty Agreements executed by Jeffory D. Blackard and Blackard Group, Inc., a Texas dated April 1, 2011 |
Page 39
FIRST AMENDMENT TO LOAN PURCHASE AND SALE AGREEMENT
1. Parties: FIRST UNITED BANK AND TRUST COMPANY (the Seller) and INDEPENDENT BANK GROUP, INC. (the Purchaser) have entered into a Loan Purchase and Sale Agreement (the Contract) dated May 6, 2011.
2. The Contract is amended as follows:
(i) | Section 1, Subsection (ix) is hereby amended and restated in its entirety to read as follows: |
(ix) | Purchase Price : | Sixteen Million Two Hundred Fifty Thousand and 00/100 Dollars ($16,250,000.00). The Cash Portion of the Purchase Price shall be $4,062,500.00. |
(ii) | Section 1, Subsection (x) is hereby amended and restated in its entirety to read as follows: |
(x) | Purchase Loan : | Subject to normal seller approval as provided in Paragraph 5 (c): | ||
A loan from Seller to Purchaser for the purchase of the Loans, which: (i) shall be in the principal amount of $12,187,500.00; (ii) have a maturity of four (4) years from the date of the Closing; (iii) bear interest at the rate of 3.25% per annum for the first two (2) years of the Purchase Loan, and then Wall Street Journal Prime floating thereafter; (iv) shall have interest payable quarterly; and (v) shall be evidenced by such promissory notes, security agreements, allonges, endorsements, assignments, loan covenants and guarantees as may be required by Seller | ||||
It is acknowledged by Purchaser and Seller that the definitive loan documents evidencing the Purchase Loan shall be in the customary and standard form of loans of a similar nature extended by Seller, with the above provisions merely providing the general parameters of the loan conditions of the Purchase Loan. |
(iii) |
Section 1, Subsection (xi) is hereby amended and restated in its entirety to read as follows: |
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(xi) | Review Period : | That period of time ending at 5:00 p.m. central-standard time on that date which is June 17, 2011. | ||||
(iv) | Section 1, Subsection (xiii) is hereby amended and restated in its entirety to read as follows: | |||||
(xiii) | Closing Date : | June 28, 2011. |
3. Except as amended hereby the provisions of the Contract shall continue in full force and effect and Seller and Purchaser acknowledge and affirm their obligations thereunder. In the event of an inconsistency between this First Amendment and the terms of the Contract, this First Amendment shall govern.
Effective Date: June 15, 2011
SELLER: |
PURCHASER: | |||||||
FIRST UNITED BANK AND TRUST COMPANY |
INDEPENDENT BANK GROUP, INC. | |||||||
BY: |
/s/ G. Massey |
BY: |
/s/ D.R. Brooks |
NAME: |
Greg Massey |
NAME: |
D. Brooks |
TITLE: |
President |
TITLE: |
Chairman/CEO |
EXHIBIT 10.14
REAL ESTATE ACQUISITION AND OPTION AGREEMENT
THIS REAL ESTATE ACQUISITION AND OPTION AGREEMENT the (Agreement) is dated the 22nd day of December, 2011, by and between IBG ADRIATICA HOLDINGS, INC. , hereinafter referred to as Seller, and HIMALAYAN VENTURES, L.P. , hereinafter collectively referred to as Buyer.
WITNESSETH:
For and in consideration of the mutual covenants hereinafter contained, the parties agree as follows:
1. Sale Agreement . Seller hereby agrees to sell, and Buyer hereby agrees to purchase, upon the terms hereinafter stated, the real property described as Exhibit A on the last page attached hereto (the Property).
Seller hereby acknowledges receipt of the sum of $50.00 cash (the Option Consideration) from Purchaser, as consideration for execution of this Agreement by Seller. If the purchase and sale of the Property is consummated pursuant to this Agreement, the Option Consideration shall be applied toward the cash portion of the Purchase Price (as hereinafter defined) paid by Purchaser. If this Agreement is terminated pursuant to a default by Seller hereunder, the Option Consideration shall be immediately returned by Seller to Purchaser. If this Agreement is terminated for any reason other than a default by Seller hereunder, Seller shall be entitled to retain the Option Consideration.
2. Purchase Price . Subject to the adjustments and prorations hereinafter described, the total purchase price to be paid for the Property shall be ONE MILLION FIVE HUNDRED THOUSAND AND NO/100 DOLLARS ($1,500,000.00), and shall be apportioned as follows:
(a) |
Purchase Price to be paid for the part of the Property commonly known as Building #3 Mixed Use (Land and common area rights): |
$ | 336,000 | |||
(b) |
Purchase Price to be paid for that portion of the Property commonly known as Building #6 Mixed Use (land and common area rights): |
100,000 | ||||
(c) |
Purchase Price paid for an undivided 133/625 interest in the parking spaces and all other common elements of the Parking Garage located adjacent to Building #3 in the development commonly known as The Harbor at Adriatica Condominiums: |
1,064,000 | ||||
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Total Purchase Price |
$ | 1,500,000 |
2.1 Cash Closing . The entirety of the purchase price shall be paid in cash (by wired funds or certified funds satisfactory to Escrow Agent for the purposes of making an immediate funding thereof) at closing.
3. Inspection Period and Contingency . Seller agrees to permit Buyer and its representatives for a period of three (3) days from the date hereof (the Inspection Period) to have access to the Property to, at Buyers sole expense, perform such geological, soil tests, engineering studies and other tests as Buyer shall require. Upon completion of such inspections and tests, Buyer shall, at its sole expense, cause the Property to be restored to its previous condition, and Buyer shall indemnify and hold Seller and its agents harmless of and from all claims which may be asserted against Seller or its agents and from all damages arising from such entry. During this period, Buyer shall determine to its satisfaction whether the Property is satisfactory for the construction thereon of Buyers proposed construction.
In order to assist Buyer in making this determination, Seller agrees to provide to Buyer, within one (1) day from the date of this Agreement, copies of all surveys, engineering reports, development studies, soil reports, and environmental assessments in Sellers possession, if any, which Seller has obtained for the Property; provided, however , such materials shall be provided to Buyer as a convenience only, and Seller makes no representation or warranty as to the accuracy thereof or anything contained therein. Should Buyer discover evidence of Hazardous Materials on the Property which would make the Property unsuitable for Buyers proposed construction on the Property, Buyer shall, prior to the expiration of the Inspection Period, deliver to Seller written notice of such discovery. Upon receipt of such written notice, Seller shall, within three (3) days from the date of the Agreement, either (i) remove the Hazardous Materials from the Property to the reasonable satisfaction of Buyer, or (ii) deliver written notice to Buyer that Seller will not remove the Hazardous Materials from the Property. In the event that either (i) Sellers efforts to remove the Hazardous Materials are not reasonably acceptable to Buyer, or (ii) Seller, in accordance with the preceding sentence, delivers written notice to Buyer that it will not remove the Hazardous Materials from the Property, Buyer shall have the right to terminate this Agreement by, within ten (10) days from the date of this Agreement, delivering to Seller a written notice of termination. Buyer shall have no right to terminate this Agreement under this Paragraph 3 for any reason other than as set forth above. Notwithstanding anything in this Paragraph 3 to the contrary, in the event Buyer fails, for any reason, to send a written notice of termination to Seller prior to the expiration of the Inspection Period, Buyer agrees that it should be conclusively presumed that the Property is suitable for Buyers proposed construction, that all conditions to closing set forth in this Paragraph 3 have been satisfied, and Buyer shall have no further right to terminate this Agreement pursuant to the provisions of this Paragraph 3.
4. Title . Seller shall, within three (3) days after the date hereof, or such longer period of time as may be required in the preparation thereof, provide to Buyer a commitment (hereinafter referred to as the Commitment) for an Owners Title Policy covering the Property in the form promulgated by the State Board of Insurance of the State of Texas. The Commitment covering the Property shall be in the amount of the purchase price and shall be accompanied by copies of all instruments creating any exceptions, including easements, restrictions, reservations, rights of way or other conditions, if any, affecting the Property. Seller shall cause the Escrow Agent to issue an Owners Title Policy in the form Promulgated by the State Board of Insurance of the State of Texas and in the amount aforesaid, based upon the Commitment covering the Property to Buyer at closing, which Owners Title Policy shall be subject to the standard printed exceptions and the Permitted Exceptions, as that term is hereinafter defined. Seller and Buyer shall each pay for one-half ( 1 / 2 ) of the cost of said Commitment and Policy, except and excluding any and all costs associated with the deletion of the survey exception, which shall be paid for solely by Buyer.
REAL ESTATE ACQUISITION AND OPTION AGREEMENT - Page 2
4.1 Title of Record . As used herein, title shall be indefeasible, as that term is defined by the current title standards in use in the State of Texas, free and clear of all liens and encumbrances, except interest in the oil, gas and other minerals lying in and under the Property and the other Permitted Encumbrances.
4.2 Objections to Title of Record . Within one (1) day after receipt of the Commitment, Buyer shall furnish to Seller written notification of any objections to or defects in the Title of Record. Any matter reflected on the Commitment to which Buyer does not give Seller written notice of objection within said one (1) day period shall be deemed a Permitted Exception, as that term is used herein. Seller shall have the right, but not the obligation, to cure Buyers objections to defects in the title prior to closing. In the event such defects are not cured by such date, Buyer shall have the option to (i) terminate this Agreement by giving notice to Seller prior to closing, or (ii) waive the defects and close, in which event the matter made the basis of such objection shall constitute a Permitted Exception.
5. Plat and Survey . Within one (1) day after the date hereof, Buyer shall have ordered and received a current survey of the Property (the Survey) which shall have been prepared by and certified by a registered professional engineer or land surveyor, which survey shall be in a form satisfactory to the Escrow Agent such that the survey exception will be removed from the title insurance policy delivered at closing; provided, however, Buyer agrees to pay the additional title insurance premium charged by Escrow Agent in connection therewith should Buyer elect to have the exception removed from the policy. The metes and bounds description for the Property as prepared by the surveyor in connection with the Survey shall be substituted for the description of the Property shown as Exhibit A attached hereto, and used in the Special Warranty Deed (the Deed) to be delivered at closing. Within one (1) day after receipt of the Survey, Buyer shall furnish to Seller written notice of any objections to the Survey. Any matter reflected on the Survey to which Buyer does not give Seller written notice of objection within said one (1) day period shall be deemed a Permitted Exception. Seller shall have the right, but not the obligation, to cure Buyers objections to the Survey prior to closing. In the event such defects are not cured by such date, Buyer shall have the option to (i) terminate this Agreement by giving notice to Seller prior to closing, or (ii) waive its survey objections and close. Buyer shall pay for the total cost of the Survey.
6. Representations and Warranties .
6.1 Sellers Representations and Warranties . The Seller represents and warrants to the Buyer that this Agreement has been duly executed and delivered by the Seller, and is a legal, valid and binding obligation of the Seller enforceable against the Seller in accordance with its terms.
The foregoing warranties are specifically limited to the actual, current knowledge of the Seller, without inquiry, as of this date, and as such, do not extend to matters unknown to Seller.
6.2 Buyers Representations and Warranties . The Buyer represents and warrants to the Seller that this Agreement has been duly executed and delivered by the
REAL ESTATE ACQUISITION AND OPTION AGREEMENT - Page 3
Buyer, that all corporate formalities necessary for Buyers execution, delivery and performance of this Agreement have occurred, and that this Agreement is a legal, valid and binding obligation of the Buyer enforceable against the Buyer in accordance with its terms.
7. Closing . Buyer and Seller agree that the purchase will be consummated as follows:
7.1 Closing Date . This transaction will be closed in the offices of the Escrow Agent within five (5) days after Buyers receipt of the Survey, unless the parties mutually agree to an extension in writing. The exact time for closing shall be established by agreement between the parties and in the absence thereof shall be held at 10:00 a.m.
7.2 Transfer of Title . Seller agrees to convey title to the Property to Buyer by special warranty deed on the date of closing.
7.3 Payments at Closing . At closing, Buyer shall pay Seller the entirety of the purchase price required under paragraph 2.2.
7.4 Possession . Exclusive possession of the Property shall be given to Buyer on the date of closing.
7.5 Real Property Taxes . All past due property taxes and special assessments for years preceding the year of closing on the Property, if any, shall be paid by Seller. The property taxes on the Property and installments for special assessments for the year of closing, if any, shall be prorated between the parties as of the date of closing.
7.6 Closing Costs . Seller shall pay the following costs: Sellers attorneys fees, one-half ( 1 / 2 ) of the fee charged by the Escrow Agent to close the transaction, and one-half ( 1 / 2 ) of the title insurance premium (excluding the additional premium for deletion of the survey exception, if required by Buyer, which shall be paid for solely by Buyer). Buyer shall pay the following costs: Buyers attorneys fees, any abstracting costs incurred, one-half ( 1 / 2 ) of the title insurance premium (plus all of the additional premium for deletion of the survey exception, if required by Buyer), the survey cost, all costs associated with platting the Property, the costs of all testing done on the Property, the recording cost for the deed, and one-half ( 1 / 2 ) of the fee charged by the Escrow Agent to close the transaction.
8. Default . If Buyer defaults under this Agreement, unless excused by a condition hereof, Seller may retain the earnest money as liquidated damages, it being agreed that it would be impracticable or extremely difficult to assess the amount of damages sustained by Seller. If Seller defaults under this Agreement, unless excused by a condition hereof, Buyer shall, at its option, (i) have the right to obtain the return of its earnest money, or (ii) specifically enforce this Agreement, as its sole remedies.
9. Miscellaneous . It is further understood and agreed as follows:
9.1 Time . Time is of the essence of this Agreement.
REAL ESTATE ACQUISITION AND OPTION AGREEMENT - Page 4
9.2 Notices . Whenever any notice, demand or request is required or permitted hereunder, such notice, demand or request shall be hand delivered in person or sent by mail, registered or certified, return receipt requested, postage prepaid, or by Federal Express or other overnight delivery service providing evidence of receipt of delivery to the addresses as set forth below:
As to Buyer: | Himalayan Ventures, L.P. | |||
14651 Dallas Parkway | ||||
Suite 136 | ||||
Dallas, TX 75254 | ||||
As to Seller: | IBG Adriatica Holdings, Inc. | |||
1600 Redbud Blvd. | ||||
Suite 400 | ||||
McKinney, TX 75069 |
Any notice, demand or request that shall be served upon either of the parties in the manner aforesaid shall be deemed sufficiently given for all purposes hereunder (i) at the time such notices, demands or requests are hand delivered in person, or (ii) on the third day after the mailing of such notices, demands or requests in accordance with the preceding portion of this Section.
Either Buyer or Seller shall have the right from time to time to designate by written notice to the other party such other person or persons, and such other place or places, as Buyer or Seller may desire written notices to be delivered or sent in accordance herewith; provided, however, at no time shall either party be required to send more than an original and two (2) copies of any such notice, demand or request required or permitted hereunder.
9.3 Severability . If any provision of this Agreement shall be held to be void or unenforceable for any reason, the remaining terms and provisions hereof shall not be affected thereby.
9.4 Assignability . Buyer may, without the prior written consent of Seller, assign its rights hereunder to any affiliated party. However, Buyer shall not, without the prior written consent of Seller, assign its rights hereunder to any unaffiliated third party.
9.5 Binding Effect . Subject to the provisions of Paragraph 11.4 above, this Agreement shall inure to the benefit of and bind the successors and assigns of the parties hereto.
9.6 Effective Date of Covenants; Survival . All covenants and warranties contained herein shall be true and correct as of this date and on the date of closing and, except as specifically provided, shall survive the closing of this transaction for a period of one (1) year from the date of closing, after which time all covenants and warranties shall be merged into the conveyance documents and extinguished.
REAL ESTATE ACQUISITION AND OPTION AGREEMENT - Page 5
9.7 Entire Agreement . This instrument constitutes the entire agreement of the parties. It supersedes any and all other agreements, either oral or in writing, between the parties hereto. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, oral or otherwise, have been made by any party or anyone acting on behalf of any party, which are not embodied herein, and that no other agreement, statement or promise not contained in this agreement shall be valid or binding. This Agreement may not be modified or amended by oral agreement, but only by an agreement in writing, signed by the parties hereto.
9.8 Paragraph Headings . Paragraph headings contained in this Agreement are for reference only and shall not affect, in any way, the meaning or interpretation of this Agreement.
9.9 Attorneys Fees . In the event either party hereto files suit in order to enforce or interpret the terms and provisions of this Agreement, the prevailing party in such litigation shall be entitled to recover from the other its reasonable attorneys fees and expenses incidental to the litigation.
9.10 Applicable Law . This Agreement shall be governed by and construed under the laws of the State of Texas.
9.11 Condition of the Property . BUYER ACKNOWLEDGES AND AGREES THAT THE PROPERTY SHALL BE CONVEYED AND TRANSFERRED TO BUYER AS IS, WHERE IS, AND WITH ALL FAULTS, AND SELLER DOES NOT WARRANT OR MAKE ANY REPRESENTATION, EXPRESSED OR IMPLIED, AS TO THE MERCHANTABILITY, QUANTITY, QUALITY, CONDITION, SUITABILITY OR FITNESS FOR ANY PURPOSE WHATSOEVER AND SHALL BE UNDER NO OBLIGATION WHATSOEVER TO UNDERTAKE ANY REPAIRS, ALTERATIONS OR OTHER WORK OF ANY KIND WITH RESPECT TO ANY PORTION OF THE PROPERTY. BUYER ALSO ACKNOWLEDGES AND AGREES THAT THE PROVISIONS IN THIS AGREEMENT FOR INSPECTION AND INVESTIGATION OF THE PROPERTY ARE ADEQUATE TO ENABLE BUYER TO MAKE BUYERS OWN DETERMINATION WITH RESPECT TO THE MERCHANTABILITY, QUANTITY, QUALITY, CONDITION AND SUITABILITY OR FITNESS FOR ANY PURPOSE OF THE PROPERTY, INCLUDING, WITHOUT LIMITATION, ITS COMPLIANCE WITH APPLICABLE ENVIRONMENTAL LAWS.
10. Option . For and in consideration of the sum of One Hundred and No/100 Dollars ($100.00) and other valuable consideration to the undersigned paid by Buyer, the receipt and sufficiency with is hereby acknowledged, Seller hereby grants to Buyer, for two (2) years from and after the date hereof (the Initial Option Period), the exclusive option and right to purchase (the Option) the property more particularly described on Exhibit B attached hereto and made a part hereof (the Option Property), for the purchase price of $200,000.00. If the Option is not exercised within the Initial Option Period, Buyer may, at its sole discretion, extend the Option for an additional one (1) year period by notifying Seller at least thirty (30) days prior to the date two years from the date of this Agreement of its intention to extend the Option, and by paying to Seller a non-refundable option extension fee of $10,000.00. Upon exercise of the Option, the parties
REAL ESTATE ACQUISITION AND OPTION AGREEMENT - Page 6
shall enter into a contract of sale within the next ten (10) days on the terms contained in this Option and otherwise containing terms that are customary and typical for contracts of sale of commercial property in Collin County, Texas (the Contract of Sale). In the event of a dispute as to the contract of sale form or any provisions otherwise not specified in this Section 12, the parties agree to utilize provisions contained in forms promulgated by the North Texas Board of Realtors.
10.1 Business Terms . Seller shall convey the Option Property by special warranty deed and As Is Where Is and with all faults, Seller making no representation or warranty as to the physical condition of the Option Property or any other representation or warranty except as provided in the warranty of title. Seller shall pay one-half (1/2) of the costs of an Owners Policy of Title Insurance; costs of recording the deed; one-half the escrow fees; and any other costs which are customarily and usually charged to sellers in the county in which the closing occurs. Seller may select the title company to perform the closing and issue the Owners Policy of Title Insurance. Buyer shall pay one-half (1/2) of the costs of an Owners Policy of Title Insurance; the cost of any endorsements to the Owners Policy of Title Insurance, including, without limitation, the premium for the survey deletion, and for any Mortgagees Policy of Title Insurance; the costs of any survey of the Option Property; the costs of any financing obtained by Buyer in conjunction with the purchase; the costs of any due diligence inspections performed of the Option Property; one-half the escrow fees; and any other costs which are customarily and usually charged to purchasers in the county in which the closing occurs. Taxes shall be prorated to the date of closing.
10.2 Exercise of Option . Buyer may exercise this option by execution and tender to Seller of a Contract of Sale. Seller shall forthwith execute, acknowledge, and deliver to the title company and the Buyer an executed and acknowledged copy of the Contract of Sale within three (3) days of Buyers execution and delivery of the Contract of Sale to Seller. The closing of the purchase of the Option Property shall be conducted in the place, time, and manner described in the Contract of Sale, but not later than thirty (30) days from the date of exercise of the option. The Purchase Price for the Option Property shall be due and payable all in cash in immediately available funds on the date of closing.
(signature page to follow)
REAL ESTATE ACQUISITION AND OPTION AGREEMENT - Page 7
(signature page to Real Estate Acquisition Agreement)
IN WITNESS WHEREOF , the parties thereto have executed this Agreement as of the day and year first above written.
SELLER: | ||
IBG ADRIATICA HOLDINGS, INC. | ||
By: |
/s/ Daniel W. Brooks |
|
Daniel W. Brooks | ||
President |
BUYER: | ||
HIMALAYAN VENTURES, L.P. | ||
BY: | DENALI SUMMIT, LLC |
By: |
/s/ David R. Brooks |
|||
David R. Brooks | ||||
President |
REAL ESTATE ACQUISITION AND OPTION AGREEMENT - Page 8
EXHIBIT A
Legal Description
All of Building 3 and Building 6 of THE HARBOR AT ADRIATICA CONDOMINIUMS, a Condominium regime in the City of McKinney, Collin County, Texas, according to the Declaration filed for record on February 25, 2009, and recorded under Instrument No. 20090225000215050 in the Deed Records of Collin County, Texas, together with all the undivided percent interest in the General Common Elements as described in said Declaration.
REAL ESTATE ACQUISITION AND OPTION AGREEMENT - Page 9
EXHIBIT B
Legal Description
Being all of Building 5 and Building 7 of THE HARBOR AT ADRIATICA CONDOMINIUMS, a Condominium regime in the City of McKinney, Collin County, Texas, according to the Declaration filed for record on February 25, 2009, and recorded under Instrument No. 20090225000215050 in the Deed Records of Collin County, Texas, together with all the undivided percent interest in the General Common Elements as described in said Declaration.
REAL ESTATE ACQUISITION AND OPTION AGREEMENT - Page 10
EXHIBIT 10.15
REAL ESTATE ACQUISITION AGREEMENT
THIS REAL ESTATE ACQUISITION AGREEMENT the (Agreement) is dated the 15th day of November, 2012, by and between IBG ADRIATICA HOLDINGS, INC. , hereinafter referred to as Seller, and HIMALAYAN ST. PAULS SQUARE HOLDINGS, LLC , hereinafter referred to as Buyer.
WITNESSETH:
For and in consideration of the mutual covenants hereinafter contained, the parties agree as follows:
1. Sale Agreement . Seller hereby agrees to sell, and Buyer hereby agrees to purchase, upon the terms hereinafter stated, the properties more particularly described on Exhibit A and Exhibit B attached hereto (collectively, the Property).
Seller hereby acknowledges receipt of the sum of $50.00 cash (the Option Consideration) from Purchaser, as consideration for execution of this Agreement by Seller. If the purchase and sale of the Property is consummated pursuant to this Agreement, the Option Consideration shall be applied toward the cash portion of the Purchase Price (as hereinafter defined) paid by Purchaser. If this Agreement is terminated pursuant to a default by Seller hereunder, the Option Consideration shall be immediately returned by Seller to Purchaser. If this Agreement is terminated for any reason other than a default by Seller hereunder, Seller shall be entitled to retain the Option Consideration.
2. Purchase Price . Subject to the adjustments and pro-rations hereinafter described, the total purchase price to be paid for the Property shall be THREE MILLION FOUR HUNDRED FIFTY TWO THOUSAND AND NO/100 DOLLARS ($3,452,000.00) as follows:
(a) |
Purchase Price to be paid for the part of the Property consisting of 5.1221 acres known as the St. Paul Tract (Land and common area rights): |
$ | 1,700,000 | |||
(b) |
Purchase Price paid for 219 parking spaces specifically identified in Exhibit B attached hereto, together with an undivided interest in all other common elements of the Parking Garage located adjacent to Building #3 in the development commonly known as The Harbor at Adriatica Condominiums: |
1,752,000 | ||||
|
|
|||||
Total Purchase Price | $ | 3,452,000 |
2.1 Cash Closing . The entirety of the purchase price shall be paid in cash (by wired funds or certified funds satisfactory to Title Company, as defined herein, for the purposes of making an immediate funding thereof) at closing.
3. Inspection Period and Contingency . Seller agrees to permit Buyer and its representatives for a period of five (5) days from the date hereof (the Inspection Period) to have
access to the Property to, at Buyers sole expense, perform such geological, soil tests, engineering studies and other tests as Buyer shall require. Upon completion of such inspections and tests, Buyer shall, at its sole expense, cause the Property to be restored to its previous condition, and Buyer shall indemnify and hold Seller and its agents harmless of and from all claims which may be asserted against Seller or its agents and from all damages arising from such entry. During this period, Buyer shall determine to its satisfaction whether the Property is satisfactory for the construction thereon of Buyers proposed construction.
In order to assist Buyer in making this determination, Seller agrees to provide to Buyer, within three (3) days from the date of this Agreement, copies of all surveys, engineering reports, development studies, soil reports, and environmental assessments in Sellers possession, if any, which Seller has obtained for the Property; provided, however, such materials shall be provided to Buyer as a convenience only, and Seller makes no representation or warranty as to the accuracy thereof or anything contained therein. Should Buyer discover evidence of Hazardous Materials on the Property which would make the Property unsuitable for Buyers proposed construction on the Property, Buyer shall, prior to the expiration of the Inspection Period, deliver to Seller written notice of such discovery. Upon receipt of such written notice, Seller shall, within three (3) days from the date of the Agreement, either (i) remove the Hazardous Materials from the Property to the reasonable satisfaction of Buyer, or (ii) deliver written notice to Buyer that Seller will not remove the Hazardous Materials from the Property. In the event that either (i) Sellers efforts to remove the Hazardous Materials are not reasonably acceptable to Buyer, or (ii) Seller, in accordance with the preceding sentence, delivers written notice to Buyer that it will not remove the Hazardous Materials from the Property, Buyer shall have the right to terminate this Agreement by, within ten (10) days from the date of this Agreement, delivering to Seller a written notice of termination. Buyer shall have no right to terminate this Agreement under this Paragraph 3 for any reason other than as set forth above. Notwithstanding anything in this Paragraph 3 to the contrary, in the event Buyer fails, for any reason, to send a written notice of termination to Seller prior to the expiration of the Inspection Period, Buyer agrees that it should be conclusively presumed that the Property is suitable for Buyers proposed construction, that all conditions to closing set forth in this Paragraph 3 have been satisfied, and Buyer shall have no further right to terminate this Agreement pursuant to the provisions of this Paragraph 3.
4. Title . Seller shall, within five (5) days after the date hereof, cause Reunion Title, 1700 Redbud Blvd., Suite 300, McKinney, Texas 75069 (the Title Company) to furnish to Buyer a commitment (hereinafter referred to as the Commitment) for an Owners Title Policy covering the Property in the form promulgated by the State Board of Insurance of the State of Texas. The Commitment covering the Property shall be in the amount of the purchase price and shall be accompanied by copies of all instruments creating any exceptions, including easements, restrictions, reservations, rights of way or other conditions, if any, affecting the Property. Seller shall cause the Title Company to issue an Owners Title Policy in the form Promulgated by the State Board of Insurance of the State of Texas and in the amount aforesaid, based upon the Commitment covering the Property to Buyer at closing, which Owners Title Policy shall be subject to the standard printed exceptions and the Permitted Exceptions, as that term is hereinafter defined. Seller and Buyer shall each pay for one-half ( 1 / 2 ) of the cost of said Commitment and Policy, except and excluding any and all costs associated with the deletion of the survey exception, which shall be paid for solely by Buyer.
REAL ESTATE ACQUISITION AGREEMENT - Page 2
4.1 Title of Record . As used herein, title shall be indefeasible, as that term is defined by the current title standards in use in the State of Texas, free and clear of all liens and encumbrances, except interest in the oil, gas and other minerals lying in and under the Property and the other Permitted Encumbrances.
4.2 Objections to Title of Record . Within three (3) days after receipt of the Commitment, Buyer shall furnish to Seller written notification of any objections to or defects in the Title of Record. Any matter reflected on the Commitment to which Buyer does not give Seller written notice of objection within said three (3) day period shall be deemed a Permitted Exception, as that term is used herein. Seller shall have the right, but not the obligation, to cure Buyers objections to defects in the title prior to closing. In the event such defects are not cured by such date, Buyer shall have the option to (i) terminate this Agreement by giving notice to Seller prior to closing, or (ii) waive the defects and close, in which event the matter made the basis of such objection shall constitute a Permitted Exception.
5. Plat and Survey . Within five (5) days after the date hereof, Buyer shall have ordered and received a current survey of the Property (the Survey) which shall have been prepared by and certified by a registered professional engineer or land surveyor, which survey shall be in a form satisfactory to the Title company such that the survey exception will be removed from the title insurance policy delivered at closing; provided, however, Buyer agrees to pay the additional title insurance premium charged by Title Company in connection therewith should Buyer elect to have the exception removed from the policy. The metes and bounds description for the Property as prepared by the surveyor in connection with the Survey shall be substituted for the description of the Property shown as Exhibit A attached hereto, and used in the Special Warranty Deed (the Deed) to be delivered at closing. Within three (3) days after receipt of the Survey, Buyer shall furnish to Seller written notice of any objections to the Survey. Any matter reflected on the Survey to which Buyer does not give Seller written notice of objection within said three (3) day period shall be deemed a Permitted Exception. Seller shall have the right, but not the obligation, to cure Buyers objections to the Survey prior to closing. In the event such defects are not cured by such date, Buyer shall have the option to (i) terminate this Agreement by giving notice to Seller prior to closing, or (ii) waive its survey objections and close. Buyer shall pay for the total cost of the Survey.
6. Representations and Warranties .
6.1 Sellers Representations and Warranties . The Seller represents and warrants to the Buyer that this Agreement has been duly executed and delivered by the Seller, and is a legal, valid and binding obligation of the Seller enforceable against the Seller in accordance with its terms.
REAL ESTATE ACQUISITION AGREEMENT - Page 3
The foregoing warranties are specifically limited to the actual, current knowledge of the Seller, without inquiry, as of this date, and as such, do not extend to matters unknown to Seller.
6.2 Buyers Representations and Warranties . The Buyer represents and warrants to the Seller that this Agreement has been duly executed and delivered by the Buyer, that all corporate formalities necessary for Buyers execution, delivery and performance of this Agreement have occurred, and that this Agreement is a legal, valid and binding obligation of the Buyer enforceable against the Buyer in accordance with its terms.
7. Closing . Buyer and Seller agree that the purchase will be consummated as follows:
7.1 Closing Date . This transaction will be closed in the offices of the Title Company within fifteen (15) days after Buyers receipt of the Survey, unless the parties mutually agree to an extension in writing. The exact time for closing shall be established by agreement between the parties and in the absence thereof shall be held at 10:00 a.m.
7.2 Transfer of Title . Seller agrees to convey title to the Property to Buyer by special warranty deed on the date of closing.
7.3 Payments at Closing . At closing, Buyer shall pay Seller the entirety of the purchase price required under paragraph 2.2.
7.4 Possession . Exclusive possession of the Property shall be given to Buyer on the date of closing.
7.5 Real Property Taxes . All past due property taxes and special assessments for years preceding the year of closing on the Property, if any, shall be paid by Seller. The property taxes on the Property and installments for special assessments for the year of closing, if any, shall be prorated between the parties as of the date of closing.
7.6 Closing Costs . Seller shall pay the following costs: Sellers attorneys fees, one-half ( 1 / 2 ) of the fee charged by the Title Company to close the transaction, and one-half ( 1 / 2 ) of the title insurance premium (excluding the additional premium for deletion of the survey exception, if required by Buyer, which shall be paid for solely by Buyer). Buyer shall pay the following costs: Buyers attorneys fees, any abstracting costs incurred, one-half ( 1 / 2 ) of the title insurance premium (plus all of the additional premium for deletion of the survey exception, if required by Buyer), the survey cost, all costs associated with platting the Property, the costs of all testing done on the Property, the recording cost for the deed, and one-half ( 1 / 2 ) of the fee charged by the Title Company to close the transaction.
8. Default . If Buyer defaults under this Agreement, unless excused by a condition hereof, Seller may retain the Option Consideration as liquidated damages, it being agreed that it would be impracticable or extremely difficult to assess the amount of damages sustained by Seller. If Seller defaults under this Agreement, unless excused by a condition hereof, Buyer shall have the right to specifically enforce this Agreement, as its sole remedy.
REAL ESTATE ACQUISITION AGREEMENT - Page 4
9. Miscellaneous . It is further understood and agreed as follows:
9.1 Time . Time is of the essence of this Agreement.
9.2 Notices . Whenever any notice, demand or request is required or permitted hereunder, such notice, demand or request shall be hand delivered in person or sent by mail, registered or certified, return receipt requested, postage prepaid, or by Federal Express or other overnight delivery service providing evidence of receipt of delivery to the addresses as set forth below:
As to Buyer: |
Himalayan St. Pauls Square Holdings, LLC 14643 Dallas Parkway Suite 550 Dallas, TX 75254 |
|||
As to Seller: |
IBG Adriatica Holdings, Inc. 1600 Redbud Blvd. Suite 400 McKinney, TX 75069 |
Any notice, demand or request that shall be served upon either of the parties in the manner aforesaid shall be deemed sufficiently given for all purposes hereunder (i) at the time such notices, demands or requests are hand delivered in person, or (ii) on the third day after the mailing of such notices, demands or requests in accordance with the preceding portion of this Section.
Either Buyer or Seller shall have the right from time to time to designate by written notice to the other party such other person or persons, and such other place or places, as Buyer or Seller may desire written notices to be delivered or sent in accordance herewith; provided, however, at no time shall either party be required to send more than an original and two (2) copies of any such notice, demand or request required or permitted hereunder.
9.3 Severability . If any provision of this Agreement shall be held to be void or unenforceable for any reason, the remaining terms and provisions hereof shall not be affected thereby.
REAL ESTATE ACQUISITION AGREEMENT - Page 5
9.4 Assignability . Buyer may, without the prior written consent of Seller, assign its rights hereunder to any affiliated party. However, Buyer shall not, without the prior written consent of Seller, assign its rights hereunder to any unaffiliated third party.
9.5 Binding Effect . Subject to the provisions of Paragraph 11.4 above, this Agreement shall inure to the benefit of and bind the successors and assigns of the parties hereto.
9.6 Effective Date of Covenants; Survival . All covenants and warranties contained herein shall be true and correct as of this date and on the date of closing and, except as specifically provided, shall survive the closing of this transaction for a period of one (1) year from the date of closing, after which time all covenants and warranties shall be merged into the conveyance documents and extinguished.
9.7 Entire Agreement . This instrument constitutes the entire agreement of the parties. It supersedes any and all other agreements, either oral or in writing, between the parties hereto. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, oral or otherwise, have been made by any party or anyone acting on behalf of any party, which are not embodied herein, and that no other agreement, statement or promise not contained in this agreement shall be valid or binding. This Agreement may not be modified or amended by oral agreement, but only by an agreement in writing, signed by the parties hereto.
9.8 Paragraph Headings . Paragraph headings contained in this Agreement are for reference only and shall not affect, in any way, the meaning or interpretation of this Agreement.
9.9 Attorneys Fees . In the event either party hereto files suit in order to enforce or interpret the terms and provisions of this Agreement, the prevailing party in such litigation shall be entitled to recover from the other its reasonable attorneys fees and expenses incidental to the litigation.
9.10 Applicable Law . This Agreement shall be governed by and construed under the laws of the State of Texas.
9.11 Condition of the Property . BUYER ACKNOWLEDGES AND AGREES THAT THE PROPERTY SHALL BE CONVEYED AND TRANSFERRED TO BUYER AS IS, WHERE IS, AND WITH ALL FAULTS, AND SELLER DOES NOT WARRANT OR MAKE ANY REPRESENTATION, EXPRESSED OR IMPLIED, AS TO THE MERCHANTABILITY, QUANTITY, QUALITY, CONDITION, SUITABILITY OR FITNESS FOR ANY PURPOSE WHATSOEVER AND SHALL BE UNDER NO OBLIGATION WHATSOEVER TO UNDERTAKE ANY REPAIRS, ALTERATIONS OR OTHER WORK OF ANY KIND WITH RESPECT TO ANY PORTION OF THE PROPERTY. BUYER ALSO ACKNOWLEDGES AND AGREES THAT THE PROVISIONS IN THIS AGREEMENT FOR INSPECTION AND
REAL ESTATE ACQUISITION AGREEMENT - Page 6
INVESTIGATION OF THE PROPERTY ARE ADEQUATE TO ENABLE BUYER TO MAKE BUYERS OWN DETERMINATION WITH RESPECT TO THE MERCHANTABILITY, QUANTITY, QUALITY, CONDITION AND SUITABILITY OR FITNESS FOR ANY PURPOSE OF THE PROPERTY, INCLUDING, WITHOUT LIMITATION, ITS COMPLIANCE WITH APPLICABLE ENVIRONMENTAL LAWS.
(signature page to follow)
REAL ESTATE ACQUISITION AGREEMENT - Page 7
(signature page to Real Estate Acquisition Agreement)
IN WITNESS WHEREOF , the parties thereto have executed this Agreement as of the day and year first above written.
SELLER: | ||
IBG ADRIATICA HOLDINGS, INC. | ||
By: |
/s/ Daniel W. Brooks |
|
Daniel W. Brooks | ||
President | ||
BUYER: | ||
HIMALAYAN ST. PAULS SQUARE HOLDINGS, LLC | ||
By: |
/s/ David R. Brooks |
|
David R. Brooks | ||
Sole Manager |
REAL ESTATE ACQUISITION AGREEMENT - Page 8
EXHIBIT 10.16
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (the Agreement ) is made and entered into this day of , 2013, between Independent Bank Group, Inc., a Texas corporation (the Company ), and ( Indemnitee ).
INTRODUCTION:
A. Indemnitee, as a member of the Companys Board of Directors and/or an officer of the Company, performs valuable services for the Company.
B. The Company and Indemnitee recognize the potential difficulty in obtaining liability insurance for corporate directors, officers, employees, controlling persons, agents and fiduciaries, the significant increases in the cost of such insurance and the general reductions in the coverage of such insurance.
C. The Company and Indemnitee further recognize the substantial increase in corporate litigation in general, subjecting directors, officers, employees, controlling persons, agents and fiduciaries to expensive litigation risks at the same time as the availability and coverage of liability insurance has been severely limited.
D. The shareholders of the Company have adopted an Amended and Restated Certificate of Formation as hereafter amended and/or restated from time to time (the Certificate ), and Amended and Restated Bylaws as hereafter amended and/or restated from time to time (the Bylaws ), providing for the indemnification of the officers, directors, agents and employees of the Company to the maximum extent authorized by Sections 8.101 and 8.102 of the Texas Business Organizations Code, or any successor statute, as amended (the TBOC ).
E. Indemnitee and other directors, officers, employees, controlling persons, agents and fiduciaries of the Company may not be willing to serve or continue to serve in such capacities without the protection afforded by this Agreement.
F. The Certificate and/or Bylaws and the TBOC, by their non-exclusive nature, permit contracts between the Company and its directors, officers, employees, controlling persons, agents or fiduciaries with respect to indemnification of such directors.
G. The Company (i) desires to attract and retain the involvement of highly qualified individuals, such as Indemnitee, to serve the Company and, in part, in order to induce Indemnitee to be involved with the Company, and (ii) desires to provide for the indemnification and advancing of expenses to Indemnitee to the maximum extent permitted by law.
H. In view of the considerations set forth above, the Company desires that Indemnitee be indemnified by the Company as set forth herein.
IBG Indemnification Agreement |
AGREEMENT:
NOW, THEREFORE , in consideration of Indemnitees service to the Company, the parties hereto agree as follows:
1. Indemnification . The Company hereby agrees to indemnify Indemnitee to the fullest extent permitted by applicable law, even if such indemnification is not specifically authorized by the other provisions of this Agreement, the Certificate, the Bylaws or by statute. In the event of any change after the date of this Agreement in any applicable law, statute or rule which expands the right of a Texas corporation to indemnify a member of its Board of Directors or an officer, shareholder, employee, controlling person, agent or fiduciary, it is the intent of the parties hereto that Indemnitee shall enjoy by this Agreement the greater benefits afforded by such change. In the event of any change in any applicable law, statute or rule which narrows the right of a Texas corporation to indemnify a member of its Board of Directors or an officer, shareholder, employee, agent or fiduciary, such change, to the extent not otherwise required by such law, statute or rule to be applied to this Agreement, shall have no effect on this Agreement or the parties rights and obligations hereunder except as set forth in Section 10(a) hereof.
2. Additional Indemnity . The Company hereby agrees to hold harmless and indemnify the Indemnitee:
(a) against any and all expenses incurred by Indemnitee, as set forth in Section 3(a) below; and
(b) otherwise to the fullest extent not prohibited by the Certificate, the Bylaws or the TBOC.
3. Indemnification Rights .
(a) Indemnification . The Company shall indemnify and hold harmless Indemnitee, together with Indemnitees affiliates, agents and spouse and each person who controls any of them or who may be liable within the meaning of Section 15 of the Securities Act of 1933, as amended (the Securities Act ), or Section 20 of the Securities Exchange Act of 1934, as amended (the Exchange Act ), to the fullest extent permitted by applicable law if Indemnitee was or is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, any threatened, pending or completed action, suit, proceeding or alternative dispute resolution mechanism, or any hearing, inquiry or investigation that Indemnitee in good faith reasonably believes might lead to the institution of any such action, suit, proceeding or alternative dispute resolution mechanism, whether civil, criminal, administrative, investigative or other (hereinafter a Claim ) against (i) any and all expenses (including attorneys fees) and all other costs, expenses and obligations incurred in connection with investigating, defending, being a witness in or participating in (including on appeal), or preparing to defend, be a witness in or participate in, any such Claim, (ii) judgments, fines, penalties and amounts paid in settlement (if such settlement is approved in advance by the Company, which approval shall not be unreasonably withheld) of any Claim, and (iii) any federal, state, local or foreign taxes imposed on Indemnitee as a result of the actual or deemed receipt of any payments under this Agreement (collectively, hereinafter Expenses ), including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, incurred by Indemnitee by reason of (or arising in part out of) any event or occurrence related to the fact that Indemnitee is or was a director, officer, employee, controlling person, fiduciary or agent of the Company or
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any subsidiary of the Company, or is or was serving at the request of the Company as a director, officer, employee, controlling person, agent or fiduciary of another corporation, partnership, joint venture, trust or other enterprise, or by reason of any action or inaction on the part of Indemnitee while serving in such capacity including, without limitation, any and all losses, claims, damages, expenses and liabilities, joint or several (including any investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit, proceeding or any claim asserted) under the Securities Act, the Exchange Act or other federal or state statutory law or regulation, at common law or otherwise, which relate directly or indirectly to the registration, purchase, sale or ownership of any securities of the Company or to any fiduciary obligation owed with respect thereto (hereinafter an Indemnification Event ). For the purposes of this Agreement, any claim brought by or in the right of the Company pursuant to derivative action will be considered to be a claim brought by a third party. Such payment of Expenses shall be made by the Company as soon as practicable but in any event no later than thirty (30) days after proper written demand by Indemnitee therefor is presented to the Company.
(b) Reviewing Party . Notwithstanding the foregoing, (i) the obligations of the Company under Section 3(a) shall be subject to the condition that the Reviewing Party (as described in Section 12(e) hereof) shall not have determined (in a written opinion, in any case in which the Independent Legal Counsel as defined in Section 12(d) hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and (ii) and Indemnitee acknowledges and agrees that the obligation of the Company to make an advance payment of Expenses to Indemnitee pursuant to Section 4(a) (an Expense Advance ) shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for the amount of such Expense Advance theretofore paid; provided, however, that if Indemnitee has commenced or thereafter commences legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or lapsed) and until such time, Indemnitee shall be entitled to receive interim payments of expenses pursuant to Section 3(a) . Indemnitees obligation to reimburse the Company for any Expense Advance shall be unsecured and no interest shall be charged thereon. If there has not been a Change in Control (as defined in Section 12(c) hereof), the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control (other than a Change in Control which has been approved by a majority of the Companys Board of Directors who were directors immediately prior to such Change in Control), the Reviewing Party shall be the Independent Legal Counsel referred to in Section 3(d) hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation seeking an
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initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, including the legal or factual bases therefor, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemnitee.
(c) Contribution . If the indemnification provided for in Section 3(a) above is for any reason held by a court of competent jurisdiction to be unavailable to an Indemnitee in respect of any losses, claims, damages, expenses or liabilities referred to therein (after a final judicial determination is made with respect thereto, and as to which all rights of appeal therefrom have been exhausted or lapsed), then the Company, in lieu of indemnifying Indemnitee thereunder, shall contribute to the amount paid or payable by Indemnitee as a result of such losses, claims, damages, expenses or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company and Indemnitee, or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company and Indemnitee in connection with the action or inaction which resulted in such losses, claims, damages, expenses or liabilities, as well as any other relevant equitable considerations. In connection with the registration of the Companys securities, the relative benefits received by the Company and Indemnitee shall be deemed to be in the same respective proportions that the net proceeds from the offering (before deducting expenses) received by the Company and Indemnitee, in each case as set forth in the table on the cover page of the applicable prospectus, bear to the aggregate public offering price of the securities so offered. The relative fault of the Company and Indemnitee shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or Indemnitee, the parties relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission, the degree to which their actions were motivated by intent to gain personal profit or advantage, the degree to which their liability is primary or secondary and the degree to which their conduct is active or passive. The Company and Indemnitee agree that it would not be just and equitable if contribution pursuant to this Section 3(c) were determined by pro rata or per capita allocation or by any other method of allocation which does not take account of the equitable considerations referred to in this paragraph. In connection with the registration of the Companys securities, in no event shall an Indemnitee be required to contribute any amount under this Section 3(c) in excess of the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to the proportion of the total securities sold under such registration statement which is being sold by Indemnitee or (ii) the proceeds received by Indemnitee from its sale of securities under such registration statement. No person found guilty of fraudulent misrepresentation (within the meaning of Section 10(f) of the Securities Act) shall be entitled to contribution from any person who was not found guilty of such fraudulent misrepresentation.
(d) Change in Control . After the date hereof, the Company agrees that if there is a Change in Control of the Company (other than a Change in Control which has
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been approved by a majority of the Companys Board of Directors who were directors immediately prior to such Change in Control) then, with respect to all matters thereafter arising concerning the rights of Indemnitee to payments of Expenses under this Agreement or any other agreement or under the Certificate or Bylaws as now or hereafter in effect, Independent Legal Counsel (as defined in Section 12(d) hereof) shall be selected by Indemnitee and approved by the Company (which approval shall not be unreasonably withheld). Such counsel, among other things, shall render its written opinion to the Company and Indemnitee as to whether and to what extent Indemnitee would be permitted to be indemnified under applicable law. The Company agrees to abide by such opinion and to pay the reasonable fees of the Independent Legal Counsel referred to above and to fully indemnify such counsel against any and all reasonable expenses (including attorneys fees), claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto.
(e) Mandatory Payment of Expenses . Notwithstanding any other provision of this Agreement, to the extent that Indemnitee has been successful on the merits or otherwise, including, without limitation, the dismissal of an action without prejudice, in the defense of any action, suit, proceeding, inquiry or investigation referred to in Section 3(a) hereof or in the defense of any claim, issue or matter therein, Indemnitee shall be indemnified against all Expenses incurred by Indemnitee in connection herewith.
(f) Survival Regardless of Investigation . The indemnification and contribution provided for herein will remain in full force and effect regardless of any investigation made by or on behalf of Indemnitee or any officer, director, employee, agent or controlling person of Indemnitee.
4. Expenses; Indemnification Procedure .
(a) Advancement of Expenses . The Company shall advance all Expenses incurred by Indemnitee. The advances to be made hereunder shall be paid by the Company to Indemnitee as soon as practicable but in any event no later than thirty (30) business days after written demand by Indemnitee therefor to the Company.
(b) Notice/Cooperation by Indemnitee . Indemnitee shall give the Company notice in writing in accordance with Section 16 of this Agreement as soon as practicable of any Claim made against Indemnitee for which indemnification will or could be sought under this Agreement.
(c) No Presumptions; Burden of Proof . For purposes of this Agreement, the termination of any Claim by judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere, or its equivalent, shall not create a presumption that Indemnitee did not meet any particular standard of conduct or have any particular belief or that a court has determined that indemnification is not permitted by applicable law. In addition, neither the failure of the Reviewing Party to have made a determination as to whether Indemnitee has met any particular standard of conduct or had any particular belief, nor an actual determination by the Reviewing Party that Indemnitee has not met such standard of conduct or did not have such belief, prior to
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the commencement of legal proceedings by Indemnitee to secure a judicial determination that Indemnitee should be indemnified under applicable law, shall be a defense to Indemnitees claim or create a presumption that Indemnitee has not met any particular standard of conduct or did not have any particular belief. In connection with any determination by the Reviewing Party or otherwise as to whether Indemnitee is entitled to be indemnified hereunder, the burden of proof shall be on the Company to establish that Indemnitee is not so entitled.
(d) Notice to Insurers . If, at the time of the receipt by the Company of a notice of a Claim pursuant to Section 4(b) hereof, the Company has liability insurance in effect which may cover such Claim, the Company shall give prompt notice of the commencement of such Claim to the insurers in accordance with the procedures set forth in each of the Companys policies. The Company shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of Indemnitee, all amounts payable as a result of such action, suit, proceeding, inquiry or investigation in accordance with the terms of such policies.
(e) Selection of Counsel . In the event the Company shall be obligated hereunder to pay the Expenses of any Claim, the Company shall be entitled to assume the defense of such Claim, with counsel approved by the Indemnitee (which approval shall not be unreasonably withheld) upon the delivery to Indemnitee of written notice of its election to do so. After delivery of such notice, approval of such counsel by Indemnitee and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees of counsel subsequently incurred by Indemnitee with respect to the same Claim; provided that (i) Indemnitee shall have the right to employ Indemnitees counsel in any such Claim at Indemnitees expense and (ii) if (A) the employment of counsel by Indemnitee has been previously authorized by the Company, (B) Indemnitee shall have reasonably concluded that there is a conflict of interest between the Company and Indemnitee in the conduct of any such defense, or (C) the Company shall not continue to retain such counsel to defend such Claim, then the fees and expenses of Indemnitees counsel shall be at the expense of the Company.
5. Nonexclusivity . The indemnification provided by this Agreement shall be in addition to any rights to which Indemnitee may be entitled under the Certificate, the Bylaws, any agreement, any vote of shareholders or disinterested directors, the TBOC, or otherwise. The indemnification provided under this Agreement shall continue as to Indemnitee for any action Indemnitee took or did not take while serving in an indemnified capacity even though Indemnitee may have ceased to serve in such capacity, and such indemnification shall inure to the benefit of each Indemnitee and his or her heirs, executors and administrators from and after Indemnitees first day of service as an officer or director with the Company or affiliation with an officer or director from and after the date such officer or director commenced services as an officer or director with the Company.
6. No Duplication of Payments . The Company shall not be liable under this Agreement to make any payment in connection with any Claim made against any Indemnitee to the extent Indemnitee has otherwise actually received payment (under any insurance policy, the Certificate, the Bylaws or otherwise) of the amounts otherwise indemnifiable hereunder.
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7. Partial Indemnification . If any Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for any portion of Expenses incurred in connection with any Claim, but not, however, for all of the total amount thereof, the Company shall nevertheless indemnify Indemnitee for the portion of such Expenses to which Indemnitee is entitled.
8. Mutual Acknowledgement . The Company and Indemnitee acknowledge that in certain instances, Federal law or applicable public policy may prohibit the Company from indemnifying its directors, officers, employees, controlling persons, agents or fiduciaries under this Agreement or otherwise. Each Indemnitee understands and acknowledges that the Company has undertaken or may be required in the future to undertake with the Securities and Exchange Commission to submit the question of indemnification to a court in certain circumstances for a determination of the Companys rights under public policy to indemnify Indemnitee.
9. Officer and Director Liability Insurance . The Company shall obtain and maintain a policy or policies of directors and officers insurance with financially sound and reputable insurers, with coverage customary for companies similarly situated to the Company, except as otherwise decided in accordance with policies adopted by the Companys Board of Directors. The Company will cause to be maintained the directors and officers insurance required by this Section 9 , except as otherwise decided in accordance with policies adopted by the Companys Board of Directors. Such policy shall not be cancelable by the Company without prior approval of the Board of Directors.
10. Exceptions . Any other provision herein to the contrary notwithstanding, the Company shall not be obligated pursuant to the terms of this Agreement:
(a) Claims Initiated by Indemnitee . To indemnify or advance expenses to any Indemnitee with respect to Claims initiated or brought voluntarily by Indemnitee and not by way of defense, except (i) with respect to actions or proceedings to establish or enforce a right to indemnification under this Agreement or any other agreement or insurance policy or under the Certificate or Bylaws now or hereafter in effect relating to Claims for an Indemnification Event, (ii) in specific cases if the Board of Directors has approved the initiation or bringing of such Claim, or (iii) as otherwise required under Chapter 8 of the TBOC, regardless of whether Indemnitee ultimately is determined to be entitled to such indemnification, advance expense payment or insurance recovery, as the case may be; or
(b) Claims Under Section 16(b) . To indemnify Indemnitee for expenses and the payment of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 16(b) of the Exchange Act or any similar successor statute; or
(c) Claims Excluded Under Chapter 8 of the Texas Business Organizations Code . To indemnify Indemnitee, if Indemnitee (i) did not act in good faith, (ii) in the case of conduct in the Indemnitees official capacity, reasonably believed that such Indemnitees conduct was in the Companys best interest, (iii) reasonably believed in any other case that such Indemnitees conduct was not opposed to the Companys best interests, or (iv) in the case of a criminal proceeding, Indemnitee did not
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have reasonable cause to believe that the Indemnitees conduct was unlawful, unless and only, in each case, to the extent that the court in which such action was brought shall determine that Indemnitee is entitled to indemnification as provided in Section 8.051(b) of the TBOC.
(d) Certain Regulatory Matters . To indemnify any Indemnitee against expenses, penalties or other payments (1) incurred in respect of an administrative proceeding or action instituted by an appropriate bank regulatory agency if such proceeding or action results in a final order assessing civil money penalties or requiring affirmative action by an individual or individuals in the form of payments to the Company, except that in this instance, the Company may indemnify an Indemnitee for reasonable expenses actually incurred in connection with such proceeding, or (2) if any banking regulatory agency, in connection with a review of such indemnification, determines through appropriate administrative proceeding or action that such indemnification shall not be made.
11. Period of Limitations . No legal action shall be brought and no cause of action shall be asserted by or in the right of the Company against any Indemnitee, any Indemnitees estate, spouse, heirs, executors or personal or legal representatives after the expiration of five years from the date of accrual of such cause of action, and any claim or cause of action of the Company shall be extinguished and deemed released unless asserted by the timely filing of a legal action within such five-year period; provided, however, that if any shorter period of limitations is otherwise applicable to any such cause of action, such shorter period shall govern.
12. Construction of Certain Phrases .
(a) For purposes of this Agreement, references to the Company shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, employees, agents or fiduciaries, so that if Indemnitee is or was a director, officer, employee, agent, controlling person, or fiduciary of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee, controlling person, agent or fiduciary of another corporation, partnership, joint venture, employee benefit plan, trust or other enterprise, Indemnitee shall stand in the same position under the provisions of this Agreement with respect to the resulting or surviving corporation as Indemnitee would have with respect to such constituent corporation if its separate existence had continued.
(b) For purposes of this Agreement, references to other enterprises shall include employee benefit plans; references to fines shall include any excise taxes assessed on any Indemnitee with respect to an employee benefit plan; and references to serving at the request of the Company shall include any service as a director, officer, employee, agent or fiduciary of the Company which imposes duties on, or involves services by, such director, officer, employee, agent or fiduciary with respect to an employee benefit plan, its participants or its beneficiaries; and if any Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in the interests of the
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participants and beneficiaries of an employee benefit plan, Indemnitee shall be deemed to have acted in a manner not opposed to the best interests of the Company as referred to in this Agreement.
(c) For purposes of this Agreement a Change in Control shall be deemed to have occurred if (i) any person (as such term is used in Sections 13(d)(3) and 14(d)(2) of the Exchange Act), other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company or a corporation owned directly or indirectly by the shareholders of the Company in substantially the same proportions as their ownership of stock of the Company, who becomes the beneficial owner (as defined in Rule 13d-3 under said Exchange Act), directly or indirectly, of securities of the Company representing more than twenty percent (20%) of the total voting power represented by the Companys then outstanding Voting Securities, (ii) during any period of two consecutive years, individuals who at the beginning of such period constitute the Board of Directors of the Company and any new director whose election by the Board of Directors or nomination for election by the Companys shareholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof, or (iii) the shareholders of the Company approve a merger or consolidation of the Company with any other corporation other than a merger or consolidation which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least eighty percent (80%) of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the shareholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one transaction or a series of transactions) all or substantially all of the Companys assets.
(d) For purposes of this Agreement, Independent Legal Counsel shall mean an attorney or firm of attorneys, selected in accordance with the provisions of Section 3(d) hereof, who shall not have otherwise performed services for the Company or any Indemnitee within the last three years (other than with respect to matters concerning the right of any Indemnitee under this Agreement, or of other indemnitees under similar indemnity agreements).
(e) For purposes of this Agreement, a Reviewing Party shall mean any appropriate person or body consisting of a member or members of the Companys Board of Directors or any other person or body appointed by the Board of Directors who is not a party to the particular Claim for which Indemnitee is seeking indemnification, or Independent Legal Counsel.
(f) For purposes of this Agreement, Voting Securities shall mean any securities of the Company that vote generally in the election of directors.
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13. Counterparts; Facsimile . This Agreement may be executed in one or more counterparts, each of which shall constitute an original. A facsimile, telecopy or other reproduction of this Agreement may be executed by one or more parties to this Agreement, and an executed copy of this Agreement may be delivered by one or more parties to this Agreement by facsimile or similar electronic transmission device pursuant to which the signature of or on behalf of such party can be seen, and such execution and delivery shall be considered valid, binding and effective for all purposes. At the request of any party to this Agreement, all parties to this Agreement agree to execute an original of this Agreement as well as any facsimile, telecopy or other reproduction of this Agreement.
14. Binding Effect; Successors and Assigns . This Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and their respective successors, assigns, including any direct or indirect successor by purchase, merger, consolidation or otherwise to all or substantially all of the business and/or assets of the Company, spouses, heirs, and personal and legal representatives. The Company shall require and cause any successor (whether direct or indirect by purchase, merger, consolidation or otherwise) to all, substantially all, or a substantial part, of the business and/or assets of the Company, by written agreement in form and substance satisfactory to Indemnitee, expressly to assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform if no such succession had taken place. This Agreement shall continue in effect with respect to Claims relating to an Indemnification Event regardless of whether any Indemnitee continues to serve as a director, officer, employee, agent, controlling person, or fiduciary of the Company or of any other enterprise, including subsidiaries of the Company, at the Companys request.
15. Attorneys Fees . In the event that any action is instituted by an Indemnitee under this Agreement or under any liability insurance policies maintained by the Company to enforce or interpret any of the terms hereof or thereof, any Indemnitee shall be entitled to be paid all Expenses incurred by Indemnitee with respect to such action (including, without limitation, attorneys fees), regardless of whether Indemnitee is ultimately successful in such action, and shall be entitled to the advancement of Expenses with respect to such action, unless, as a part of such action, a court of competent jurisdiction over such action determines that the material assertions made by Indemnitee as a basis for such action were not made in good faith or were frivolous, provided, however, that until such determination is made, Indemnitee shall be entitled to receive payment of Expense Advances hereunder with respect to such action. In the event of an action instituted by or in the name of the Company under this Agreement to enforce or interpret any of the terms of this Agreement, Indemnitee shall be entitled to be paid all Expenses incurred by Indemnitee in defense of such action (including costs and expenses incurred with respect to Indemnitee counterclaims and cross-claims made in such action), and shall be entitled to the advancement of Expenses with respect to such action, unless, as a part of such action, a court having jurisdiction over such action determines that each of the Indemnitees material defenses to such action was made in bad faith or were frivolous.
16. Notice . All notices and other communications required or permitted hereunder shall be in writing or by electronic transmission, shall be effective when given, and shall in any event be deemed to be given (a) five calendar days after deposit with the U.S. Postal Service or other applicable postal service, if delivered by first class mail, postage prepaid, (b) upon delivery,
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if delivered by hand, (c) one business day after the business day of deposit with Federal Express or similar overnight courier, freight prepaid, (d) one day after the business day of delivery by facsimile transmission, if deliverable by facsimile transmission, with copy by first class mail, postage prepaid, and shall be addressed if to Indemnitee, at Indemnitees address as set forth beneath Indemnitees signature to this Agreement and if to the Company at the address of its principal corporate offices (attention: Chief Executive Officer, unless Indemnitee is the CEO, then to the attention of the next most senior officer and the Board of Directors) or at such other address as such party may designate by ten calendar days advance written notice to the other party hereto, or (e) on the first business day on which delivery is confirmed if notice is given by electronic transmission. As used in this Agreement, electronic transmission means any form of communication, not directly involving the physical transmission of paper, that creates a record that may be retained, retrieved and reviewed by a recipient thereof, and that may be directly reproduced in paper form by such a recipient through an automated process.
17. Choice of Law . THIS AGREEMENT SHALL BE GOVERNED BY AND ITS PROVISIONS CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, AS APPLIED TO CONTRACTS BETWEEN TEXAS RESIDENTS, ENTERED INTO AND TO BE PERFORMED ENTIRELY WITHIN THE STATE OF TEXAS, WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES THEREOF.
18. Consent to Jurisdiction . THE COMPANY AND INDEMNITEE EACH HEREBY IRREVOCABLY CONSENT TO THE JURISDICTION OF THE COURTS OF THE STATE OF TEXAS FOR ALL PURPOSES IN CONNECTION WITH ANY ACTION OR PROCEEDING WHICH ARISES OUT OF OR RELATES TO THIS AGREEMENT AND AGREE THAT ANY ACTION INSTITUTED UNDER THIS AGREEMENT SHALL BE COMMENCED, PROSECUTED AND CONTINUED ONLY IN THE COURTS OF THE STATE OF TEXAS IN AND FOR COLLIN COUNTY, WHICH SHALL BE THE EXCLUSIVE AND ONLY PROPER FORUM FOR ADJUDICATING SUCH A CLAIM.
19. Severability . The provisions of this Agreement shall be severable in the event that any of the provisions hereof (including any provision within a single section, paragraph or sentence) are held by a court of competent jurisdiction to be invalid, void or otherwise unenforceable, and the remaining provisions shall remain enforceable to the fullest extent permitted by applicable law. Furthermore, to the fullest extent possible, the provisions of this Agreement (including, without limitations, each portion of this Agreement containing any provision held to be invalid, void or otherwise unenforceable, that is not itself invalid, void or unenforceable) shall be construed so as to give effect to the intent manifested by the provision held invalid, illegal or unenforceable.
20. Subrogation . In the event of payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee who shall execute all documents required and shall do all acts that may be necessary to secure such rights and to enable the Company effectively to bring suit to enforce such rights.
21. Amendment and Termination . No amendment, modification, termination or cancellation of this Agreement shall be effective unless it is in writing signed by all parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions hereof (whether or not similar) nor shall such waiver constitute a continuing waiver.
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22. Integration and Entire Agreement . This Agreement sets forth the entire understanding between the parties hereto and supersedes and merges all previous written and oral negotiations, commitments, understandings and agreements relating to the subject matter hereof between the parties hereto, including any prior indemnification agreement.
23. No Construction as Employment Agreement . Nothing contained in this Agreement shall be construed as giving the Indemnitee any right to be retained in the employ of the Company or any of its subsidiaries.
24. Corporate Authority . The Board of Directors of the Company has approved the terms of this Agreement.
(Signature page follows)
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EXHIBIT 10.16
IN WITNESS WHEREOF , the parties hereto have executed this Indemnification Agreement effective as of the day and year first above written.
COMPANY: | ||
INDEPENDENT BANK GROUP, INC. | ||
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AGREED TO AND ACCEPTED: | ||
INDEMNITEE: | ||
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Printed Name: ________________________________ | ||
Address: ________________________________ | ||
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Fax: ______________________________________ | ||
Email:______________________________________ |
Independent Bank Group, Inc.
Indemnification Agreement
Signature Page
EXHIBIT 10.17
S CORPORATION REVOCATION, TAX ALLOCATION AND
INDEMNIFICATION AGREEMENT
This S CORPORATION REVOCATION, TAX ALLOCATION AND INDEMNIFICATION AGREEMENT dated as of , 2013 (this Agreement), between INDEPENDENT BANK GROUP, INC., a Texas corporation (the Company ), and all of the shareholders identified on the signature pages of this Agreement.
WHEREAS, the Company has elected to be an S corporation (the S Election ) under the Internal Revenue Code of 1986, as amended (the Code );
WHEREAS, the Company intends to conduct an initial public offering (the IPO );
WHEREAS, the Shareholders are currently, and have been since January 1, 2013, the only shareholders of the Company and will continue to be so until [the Termination Date.
WHEREAS, at all times the Companys S Election was in effect and the Shareholders (defined below) were shareholders of the Company, the Shareholders paid income Taxes, which may have included federal, state and local income Taxes, on their allocable share of the Companys Taxable Income (defined below) as determined under the Code and any applicable equivalent state or local statutes, and the Shareholders will continue to pay such Taxes (as they become due) for such periods as the Companys S Election remains in effect;
WHEREAS, the Company is obligated under its shareholder agreement to make pro rata distributions to the Shareholders in amounts equal to the Shareholders estimated Tax liability, calculated as if each Shareholder would be taxable on its allocable share of the Companys Taxable Income at the maximum federal income Tax rate and any maximum state and local income Tax rates for the applicable taxable period;
WHEREAS, the Company and the Shareholders desire to set forth their agreement that the Company shall bear the risk of any additional Tax liability, as well as any related losses, costs and expenses, resulting from (i) any statement or restatement of the Companys Taxable Income on any income tax return or (ii) any Determination (as defined below), in each case for any open taxable period beginning before the Termination Date (as defined below);
WHEREAS, in connection with the IPO, the Company and the Shareholders desire to provide for an S corporation revocation, tax allocation and indemnification agreement in connection with taxable periods prior to and following the Termination Date; and
WHEREAS, as a result of the proposed revocation of the Companys S Election, the qualified subchapter S subsidiary election (a QSub Election ) for each subsidiary of the Company (a Subsidiary ) for which a QSub Election has been made and is in effect will terminate and each of the Company and each such Subsidiary will be classified as a C corporation under the Code.
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, the parties hereby agree as follows:
ARTICLE 1
DEFINITIONS
Section 1.01 General . The following terms shall have the following meanings (such meanings to apply equally to the singular and plural forms of the terms defined). All section references are to this Agreement unless otherwise stated. All references to includes and including mean includes without limitation or including without limitation, as the case may be.
Section 1.02 Definition of Terms .
AAA shall have the meaning assigned to that term by Section 1368(e)(1) of the Code.
C Short Year shall have the meaning set forth in Section 3.01 .
Companys Taxable Income means, for each taxable period beginning on or after the date the Company became an S corporation and ending with the close of the last day of the Companys S Short Year occurring in 2013, the sum determined as to such taxable period of (i) the Companys items of separately stated income and gain (within the meaning of Section 1366(a)(1)(A) of the Code) reduced, to the extent applicable, by the Companys separately stated items of deduction and loss (within the meaning of Section 1366(a)(1)(A) of the Code) and (ii) the Companys non-separately computed net income (within the meaning of Section 1366(a)(l)(B) of the Code), which for the avoidance of doubt shall be determined in each case by including income, gains, deductions and losses of any Subsidiary for which a QSub Election has been made and is in effect.
Determination means the final resolution of liability for any Tax payable by a Shareholder due to its ownership of stock in the Company for any taxable period as a result of (i) a determination as defined in Treasury Regulations Section 1.1377-2(c), (ii) a final determination made by a competent Taxing Authority or (iii) the payment of Tax by the Shareholders if the Shareholders and the Company agree that the payment should be made and no action should be taken to recoup that payment.
Post-Termination Distribution means a cash distribution to a Shareholder by the Company with respect to the Companys stock during the Post-Termination Transition Period as set forth in Section 1371(e) of the Code to the extent such distribution does not exceed the AAA of the Company as of the date of distribution.
Post-Termination Transition Period shall have the meaning set forth in Section 1377(b)(1) of the Code and shall begin on the day after the last day of the Companys S Short Year.
Proceeding means any proceeding that will potentially give rise to a Determination.
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S corporation shall have the meaning set forth in Section 1361 of the Code.
S Short Year shall have the meaning set forth in Section 3.01 .
S Termination Year shall have the meaning set forth in Section 3.01 .
Shareholder means for the taxable period beginning January 1, 2013, a person who was a shareholder of the Company during all of such taxable period.
Taxes means all federal, state and local taxes, assessments, duties or similar charges of any kind whatsoever, including any interest, additions to tax or penalties applicable thereto.
Taxing Authority means any governmental body charged with the determination, collection or imposition of Taxes.
Termination Date shall mean the date on which the Companys status as an S corporation is terminated by reason of revocation pursuant to Section 1362(d)(1) of the Code of the S Election of the Company, which shall be determined pursuant to Section 2.01 .
Treasury Regulations means the regulations promulgated by the United States Treasury Department under the Code.
ARTICLE 2
REVOCATION; PAYMENTS AND INDEMNITY
Section 2.01 Revocation of S Corporation Status . The Company shall revoke its status as an S corporation pursuant to Section 1362(d)(1) of the Code, which election shall be made by the Company and consented to by Shareholders holding more than 50% of the issued and outstanding shares of the Company (including nonvoting stock) and shall be effective on the Termination Date. The revocation and consents shall be made in accordance with and in the manner provided by Treasury Regulation § 1.1362-6(a)(3) and shall be substantially in the form attached hereto as Exhibit A . Each of the executive officers of the Company is authorized and directed to execute and timely file such revocation with the Internal Revenue Service and to set forth in such revocation the Termination Date, which date shall be determined by the officer(s) executing such revocation and which such date shall not be later than the day before the date of pricing of the IPO.
Section 2.02 Tax Returns . Upon filing any federal, state or local income tax return (amended or otherwise) for any taxable period during which the Company had an S Election in effect, the Company shall calculate each Shareholders estimated Tax liability for such taxable period as if each such Shareholder would be taxable on its allocable share of the Companys Taxable Income at the maximum federal income Tax rate and the maximum state and local income Tax rates, if any, applicable to each such Shareholder with respect to such taxable period; provided, that in any case where another person or entity is directly taxed on a Shareholders income, such Shareholders estimated Tax liability shall be determined by reference to such other person or entity, provided that the Company has received written notice of such other person or entity. The Company shall calculate for each Shareholder the excess of
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such Shareholders estimated Tax liability over the amount previously distributed by the Company to such Shareholder in respect of Tax liabilities for the relevant taxable period (the 2.02 Excess ). To the extent the Company has not previously made a prior payment for these specific Taxes, the Company shall make a payment to each Shareholder in proportion to each Shareholders shareholdings during the relevant taxable period in an amount sufficient so that the Shareholder with the highest 2.02 Excess receives a payment equal thereto. If the number of shares owned by any Shareholder during a taxable period has varied, the Company shall determine the 2.02 Excess for that taxable period as the sum of the amounts that would constitute a 2.02 Excess if each period during which shareholdings remained constant in such taxable period were treated as a separate taxable period. Payments made pursuant to this Section 2.02 shall be made on or before the time the relevant income tax return is filed.
Section 2.03 Determinations. After any Determination with respect to a taxable period, the Company shall calculate each Shareholders estimated Tax liability for such taxable period as if each such Shareholder would be taxable on such Shareholders allocable share of the Companys Taxable Income at the maximum federal income Tax rate and the maximum state and local income Tax rates, if any, applicable to each such Shareholder with respect to such taxable period; provided, that in any case where another person or entity is directly taxed on a Shareholders income, such Shareholders estimated Tax liability shall be determined by reference to such other person or entity, provided that the Company has received written notice of such other person or entity. The Company shall calculate for each Shareholder the excess of such Shareholders estimated Tax liability over the amount previously distributed by the Company to such Shareholder in respect of Tax liabilities for the relevant taxable period (the 2.03 Excess ). The Company shall make a payment to each Shareholder in proportion to each Shareholders shareholdings during the relevant taxable period in an amount sufficient so that the Shareholder with the highest 2.03 Excess receives a payment equal thereto. If the number of shares owned by any Shareholder during a taxable period has varied, the Company shall determine the 2.03 Excess for that taxable period as the sum of the amounts that would constitute a 2.03 Excess if each period during which shareholdings remained constant in such taxable period were treated as a separate taxable period. Payments made pursuant to this Section 2.03 shall be made within 120 days of the relevant Determination.
Section 2.04 Indemnification. The Company shall indemnify and hold harmless each Shareholder from any losses, costs or expenses (including reasonable attorneys fees) arising out of any claims made pursuant to Section 2.02 or Section 2.03 . Payments made pursuant to this Section 2.04 shall be made at the same time as the payment made pursuant to Section 2.02 or Section 2.03 , as applicable, or if later, promptly upon the Company becoming aware in writing of the amount of such losses, costs or expenses.
ARTICLE 3
ALLOCATION OF INCOME
Section 3.01 Short Taxable Years. The parties acknowledge that the taxable year in which the S corporation status of the Company is terminated will be an S Termination Year for Tax purposes, as defined in Section 1362(e)(4) of the Code. Pursuant to Section 1361(e)(1) of the Code, the S Termination Year of the Company shall be divided into two short taxable years:
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an S Short Year and a C Short Year. Pursuant to Section 1362(e)(1)(A) of the Code, the S Short Year shall be that portion of the Companys S Termination Year ending on the day immediately preceding the Termination Date. Pursuant to Section 1362(e)(1)(B) of the Code, the C Short Year shall be that portion of the Companys S Termination Year beginning on the Termination Date and ending on the last day of the Companys S Termination Year.
Section 3.02 Closing of the Books . The Company and each of the Shareholders agree that for Tax purposes (including for purposes of determining the Companys Taxable Income for its S Short Year) the Company shall allocate its items of income, gain, loss, deduction and credit for its calendar year constituting the Companys S Termination Year between the S Short Year and the C Short Year in accordance with normal tax accounting rules (the so-called closing of the books method), as permitted by Section 1362(e)(3) of the Code by assuming that the S Short Year were a taxable year ending at the end of the S Short Year and the C Short Year were a taxable year beginning at the beginning of the C Short Year. The Company will make the election permitted by Section 1362(e)(3) in a timely manner. Each of the Shareholders agrees to consent to such election and to provide the Company with the statement of consent of all Shareholders described in Section 1.1362-6(a)(5) and (b) of the Treasury Regulations. The Company and each of the Shareholders agree to make, and to provide such information and obtain such consents as are necessary to make, any comparable election required under applicable state and local income tax laws.
ARTICLE 4
NOTICE, PROCEEDINGS AND INCONSISTENT REPORTING
Section 4.01 Notice and Proceedings .
(a) Any Shareholder that believes it may be entitled to a payment under this Agreement as a result of a Proceeding shall use reasonable efforts to promptly notify the Company of such Proceeding. The Company will have the option to represent itself in any Proceeding, at its own expense and using advisors of the Companys choice.
(b) Each Shareholder shall cooperate fully with the Company in any Proceeding and shall have the right, but not the obligation, to participate in such Proceeding at its own expense.
(c) Breach by any Shareholder of any of the provisions of this Section 4.01 will terminate the Companys obligation to make payments to such Shareholder under Article II , to the extent any such breach prejudices the result of any Proceeding.
Section 4.02 Inconsistent Reporting . If a Shareholder hereafter reports an item on such Shareholders income tax return in a manner materially inconsistent with the Tax treatment reflected in the Schedule K-1 or other Tax information provided to the Shareholder by the Company for a taxable period during which the Company had an S Election in effect, such Shareholder shall notify the Company of such treatment before filing such Shareholders income tax return. If such Shareholder fails to notify the Company of such inconsistent reporting, such Shareholder shall be liable to the Company for any losses, costs or expenses (including reasonable attorneys fees) arising from such inconsistent reporting, including an audit, and the Company shall have no obligation to make the payments to such Shareholder under Article II .
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ARTICLE 5
REPRESENTATIONS AND WARRANTIES; COVENANTS
Section 5.01 Representations and Warranties of the Shareholders . Each Shareholder represents and warrants that:
(a) it is currently, and has been since January 1, 2013, a shareholder of the Company; and
(b) the information set forth in Exhibit B with respect to such Shareholder is true, complete and correct.
Section 5.02 Representations and Warranties of the Company . The Company represents and warrants that the Shareholders are currently, and have been since January 1, 2013, the only shareholders of the Company.
Section 5.03 Covenants of the Shareholders . Each of the Shareholders will continue to be a shareholder of the Company from the effective date of this Agreement until the date of pricing of the IPO.
ARTICLE 6
MISCELLANEOUS
Section 6.01 Confidentiality . Each of the parties agrees that any information furnished pursuant to this Agreement is confidential and, except as and to the extent required by law or otherwise during the course of an audit or contest or other administrative or legal proceeding, shall not be disclosed to any person or entity.
Section 6.02 Post-Termination Distributions. To the extent practicable and to the extent consistent with applicable law, payments or other distributions made to the Shareholders pursuant to Section 2.02 and Section 2.03 will be treated as Post-Termination Distributions for U.S. federal income Tax purposes and any correspondingly applicable state and/or local Tax purposes. To the extent that the Companys tax return preparers determine that such payments or distributions cannot be properly treated as Post-Termination Distributions, then the amount of any distribution made to the Shareholders pursuant to Section 2.02 , Section 2.03 and Section 2.04 shall be increased by the amount of such Shareholders additional Tax liability, if any, resulting from such payments or distributions, as reasonably determined by the Companys tax return preparers plus an amount equal to any additional Tax liability resulting from the payment pursuant to this Section 6.02 , assuming that each Shareholder pays Tax at the maximum federal income Tax rate and the maximum state and local income Tax rates applicable to each such Shareholder in the manner determined in Section 2.02 .
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Section 6.03 Successors and Access to Information. This Agreement shall be binding upon and inure to the benefit of any successor, heirs or personal representatives to any of the parties, by merger, acquisition of assets or stock in the Company or otherwise, to the same extent as if the successor, heir or personal representative had been an original party to this Agreement or the relevant Shareholder for the taxable period in question, and in such event, all references herein to a party shall refer instead to the successor, heir or personal representative of such party; provided, however, that for purposes of calculating the estimated Tax liability to which any payments under this Agreement would relate, the original Shareholders estimated Tax liability shall be taken into account, but any payments in connection therewith shall be made to the successor, heir or personal representative of such original Shareholder.
Section 6.04 Governing Law; Venue . This Agreement shall be governed by and construed in accordance with the laws of the State of Texas excluding (to the greatest extent permissible by law) any rule of law that would cause the application of the laws of any jurisdiction other than the State of Texas. Venue for any action to enforce the provisions of this Agreement shall lie solely in the state and federal district courts located in Collin County, Texas. The parties hereby submit to the exclusive jurisdiction of the courts of the State of Texas located in McKinney, Texas, or the federal courts of the United States located in the Northern District of the State of Texas in respect of any dispute relating to this Agreement or to the transactions contemplated hereby. The parties irrevocably waive, to the fullest extent permitted by law, any objection that they may now or hereafter have to the personal and subject matter jurisdiction of such courts to resolve any such dispute or to venue in McKinney, Texas, including an objection based on forum non conveniens.
Section 6.05 Headings. The headings in this Agreement are for convenience only and shall not be deemed for any purpose to constitute a part or to affect the interpretation of this Agreement.
Section 6.06 Counterparts. This Agreement may be executed simultaneously in two or more counterparts, each of which will be deemed an original, and it shall not be necessary in making proof of this Agreement to produce or account for more than one counterpart.
Section 6.07 Electronic Transmission . Any facsimile or electronically transmitted copies hereof or signature hereon shall, for all purposes, be deemed originals.
Section 6.08 Notices. Any notice or communication required or permitted to be given under this Agreement shall be in writing (including telecopy communication) and mailed, telecopied or delivered to the parties at the addresses specified in Schedule A or at such other address as one party may specify by notice to the other party. All such notices and communications shall be effective when received. Any payment required to be made under this Agreement shall be mailed or delivered to the parties at the addresses specified in Schedule A or at such other address or account as one party may specify by notice to the other party.
Section 6.09 Severability. If any provision of this Agreement is held to be unenforceable for any reason, it shall be adjusted rather than voided, if possible, in order to achieve the intent of the parties to the maximum extent practicable. In any event, all other provisions of this Agreement shall be deemed valid, binding, and enforceable to their full extent.
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Section 6.10 Survival. This Agreement shall remain in force and be binding so long as the applicable period of assessments (including extensions) remains unexpired for any Taxes contemplated by this Agreement.
Section 6.11 Successor Provisions. Any reference herein to any provisions of the Code or Treasury Regulations shall be deemed to include any amendments or successor provisions thereto as appropriate.
Section 6.12 Integration; Amendments. Except as explicitly stated herein, this Agreement embodies the entire understanding between the parties relating to its subject matter and supersedes and terminates all prior agreements and understandings among the parties with respect to such matters. No promises, covenants or representations of any kind, other than those expressly stated herein, have been made to induce any party to enter into this Agreement. This Agreement shall not be modified or terminated except by a writing duly signed by each of the parties hereto, and no waiver of any provisions of this Agreement shall be effective unless in a writing duly signed by the party sought to be bound.
Section 6.13 Waiver of Jury Trial. EACH PARTY HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY DISPUTE ARISING OUT OF THIS AGREEMENT. EACH PARTY (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 6.13 .
[Signature pages follow.]
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IN WITNESS WHEREOF, each of the parties of this Agreement has executed this Agreement, or caused this Agreement to be executed by its duly authorized officer or trustee, effective as of the date first set forth above.
INDEPENDENT BANK GROUP, INC.
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SHAREHOLDERS |
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SCHEDULE A
Notices
To the Company:
Independent Bank Group, Inc.
1600 Redbud Boulevard, Suite 400
McKinney, Texas 75069-3257
Facsimile: 972-562-5496
Attn: David R. Brooks
With a copy (which shall not constitute notice) to:
Haynie Rake & Repass, P.C.
14643 Dallas Parkway, Suite 550
Dallas, TX 75254
Facsimile: 972-716-1850
Attention: Mark Haynie, Esq.
To the Shareholders:
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Schedule A |
EXHIBIT A
REVOCATION OF S ELECTION
Department of the Treasury
Internal Revenue Service Center
Ogden, UT 84201
Re: | Independent Bank Group, Inc., EIN: #13-4219346; Revocation of S Corporation Election |
Independent Bank Group, Inc., a Texas corporation (the Company), with its principal office located at 1600 Redbud Boulevard, Suite 400, McKinney, Texas 75069-3257, hereby revokes, pursuant to Section 1362(d)(1) of the Internal Revenue Code of 1986, as amended (the Code), its S corporation election under Section 1362(a) of the Code effective as of , 2013. On the effective date of the revocation, the number of shares (issued and outstanding) of the Companys stock, including nonvoting stock, is .
Attached are the consents to the revocation by shareholders of the Company owning more than 50% of the issued and outstanding shares of the Company.
Executed: , 2013
INDEPENDENT BANK GROUP, INC. | ||
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Exhibit A |
EXHIBIT A
CONSENT TO REVOCATION OF SELECTION
Under penalties of perjury, I, the undersigned, being a shareholder of Independent Bank Group, Inc., a Texas corporation (EIN #13-4219346) (the Company), owning % of the issued and outstanding shares (including nonvoting stock) of the Company as of the date hereof, declare that I consent to the Companys revocation, pursuant to Section 1362(d)(1) of the Internal Revenue Code of 1986, as amended (the Code), of its S corporation election under Section 1362(a) of the Code, and that I have examined this consent statement, including any accompanying schedules and statements, and to the best of my knowledge and belief, it is true, correct, and complete. I understand my consent is binding and may not be withdrawn after the Company has made a valid election. The revocation is to be effective as of , 2013.
Name and Address |
Social
Security Number or Employer Identification Number |
No. of
Shares Owned |
Date(s)
Acquired |
Shareholders
Tax Year End |
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12/31 |
Executed: , 2013
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Exhibit A |
EXHIBIT A
CONSENT TO REVOCATION OF S ELECTION
Under penalties of perjury, we, the undersigned, being shareholders of Independent Bank Group, Inc., a Texas corporation (EIN #13-4219346) (the Company), owning % of the issued and outstanding shares (including nonvoting stock) of the Company as of the date hereof as community property, declare that we consent to the Companys revocation, pursuant to Section 1362(d)(1) of the Internal Revenue Code of 1986, as amended (the Code), of its S corporation election under Section 1362(a) of the Code, and that we have examined this consent statement, including any accompanying schedules and statements, and to the best of our knowledge and belief, it is true, correct, and complete. We understand our consent is binding and may not be withdrawn after the Company has made a valid election. The revocation is to be effective as of , 2013.
Name and Address |
Social
Security Number or Employer Identification Number |
No. of
Shares Owned |
Date(s)
Acquired |
Shareholders
Tax Year End |
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12/31 |
Executed: , 2013
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Exhibit A |
EXHIBIT B
COMPLETE LIST OF SHAREHOLDERS OF THE COMPANY FROM JANUARY 1,
2013 THROUGH THE TERMINATION DATE
Name and Address |
Social
Security Number or Employer Identification Number |
No. of
Shares Owned |
Date(s)
Acquired |
Shareholders
Tax Year End |
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12/31 | ||||||||
12/31 | ||||||||
12/31 | ||||||||
12/31 |
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Exhibit B |
Name and Address |
Social
Security Number or Employer Identification Number |
No. of
Shares Owned |
Date(s)
Acquired |
Shareholders
Tax Year End |
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12/31 | ||||||||
12/31 | ||||||||
12/31 | ||||||||
12/31 |
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Exhibit B |
Exhibit 10.18
INDEPENDENT BANK GROUP CENTRAL TEXAS, INC.
STOCK GRANT PLAN
This Stock Grant Plan (the Plan) is adopted effective as of March 31, 2005, by Independent Bank Group Central Texas, Inc., a Texas corporation (the Company) for the benefit of the eligible employees of the Company and its indirect subsidiary, Independent Bank, Waco, Texas (the Bank).
1. | PURPOSE |
The Plan is intended to advance the interests of the Company and its shareholders by encouraging and enabling selected officers and employees of the Company and the Bank to acquire and retain a proprietary interest in the Company by ownership of its stock so as to provide additional incentive for such individuals to promote the success of the Companys business through sharing in the growth of such business and to encourage them to remain in the employ of the Company and the Bank.
2. | STOCK GRANT RESERVE |
(a) | Stock Grant Reserve . The Company will establish a Stock Grant Reserve (so called herein) to which will be credited 35,000 shares of the common stock of the Company (the Common Stock). The shares of Common Stock reserved in the Stock Grant Reserve and any such shares issued pursuant to this Plan are referred to herein as Shares. Should the shares of the Common Stock, due to a stock split or stock dividend or combination of shares or any other change, or exchange for other securities, by reclassification, reorganization, merger, consolidation, recapitalization or otherwise, be increased or decreased or changed into, or exchanged for, a different number or kind of shares of stock or other securities of the Company or of another entity, the number of shares then remaining in the Stock Grant Reserve shall be appropriately adjusted or automatically converted to reflect such action. If any such adjustment results in a fractional share, the fraction shall be disregarded. |
(b) | Adjustments to Reserve . Upon the grant of Shares hereunder, the Stock Grant Reserve will be reduced by the number of Shares so allocated. Upon the forfeiture and cancellation of Shares pursuant to this Plan, the Stock Grant Reserve shall be increased by such number of Shares, and such Shares may again be the subject of grants hereunder. |
(c) | Grants of Shares . Grants of Shares, as the Board of Directors of the Company (the Board) shall in its sole discretion determine, may be made from the authorized and unissued shares of Common Stock of the Company. |
STOCK GRANT PLAN - Page 1
3. | ELIGIBILITY AND MAKING OF ALLOCATIONS |
(a) | Eligible Persons . Any officer or employee of the Company and/or the Bank who has signed a Letter Agreement in the form attached hereto as Exhibit A shall be eligible to receive a grant of Shares pursuant to the Plan. |
(b) | Selection by Board . From the persons eligible to receive grants, the Board shall determine the recipients of Shares and the number of Shares that should be granted to each such individual. The Board may make more than one grant to the same individual. In selecting those persons for whom it wishes to make grants and in determining the number of Shares it wishes to grant, the Board shall consider such matters it deems appropriate. A person who receives a grant of Shares pursuant to this Plan is hereinafter referred to as a Recipient and includes such individuals designated beneficiary, surviving spouse, estate, or legal representative. |
(c) | Participation in Other Stock Option Plans . A person who has received or later receives options to purchase stock under any stock option plan of the Company may participate in such other plan in accordance with its terms, and will not by reason thereof be ineligible to receive Shares under this Plan. |
(d) | Limit on Number of Allocable Shares . The total number of Shares which may be granted pursuant to this Plan will not exceed the amount available therefor in the Stock Grant Reserve. |
(e) | Notice to Recipient . When a grant is made, the Board shall advise the Recipient thereof by delivery of the Letter Agreement in substantially the same form as the attached Exhibit A . Upon receipt of a Letter Agreement, the Recipient shall execute and return such Letter Agreement to the Company. If the Recipient fails or refuses to execute and return the Letter Agreement within thirty days, the Shares granted to such Recipient shall be deemed to be forfeited. |
4. | ISSUANCE AND POSSESSION OF SHARES |
(a) | Issuance . Upon receipt of an executed Letter Agreement, the Company shall issue the granted number of Shares in the Recipients name. The Recipient shall thereupon be a shareholder of all the Shares represented by the certificate or certificates. As such, the Recipient will have all the rights of a shareholder of the Company with respect to such Shares, including the right to vote and to receive all dividends and other distributions including any stock dividend, split, or exchange applicable to shares of Common Stock of the Company. Notwithstanding any other provision of this Plan, all Shares shall be subject to the restrictions set forth in this Plan. |
(b) | Possession . To facilitate any restrictions or forfeiture provided for in this Plan, the Company shall hold any and all certificates evidencing the Shares in its possession during the Restricted Period (defined below). Following expiration of the Restricted Period, the Company shall deliver the certificate evidencing the Shares to the Recipient. |
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5. | RESTRICTIONS ON SHARES |
(a) | Restrictions . The restrictions to which Shares shall be subject are: |
(i) Prohibition Against Transfer . During the Restricted Period applicable to Shares and except as otherwise specifically provided in the Plan, none of the Shares shall be sold, exchanged, transferred, pledged, hypothecated, or otherwise disposed of.
(ii) Forfeiture . If at any time before the Restricted Period ends a Recipients employment is terminated for cause or as a result of voluntary resignation of employment by the Recipient, all of Recipients right, title, and interest in the Shares shall be forfeited, and the Shares shall (a) be cancelled; (b) be treated as authorized and unissued shares; and (c) again become part of the Stock Grant Reserve.
(b) | Death; Disability; Termination without Cause; Change of Ownership . If, prior to the end of the Restricted Period, a Recipient dies or becomes disabled, is terminated not for cause or the ownership of control of the Company and the Bank is transferred, pursuant to a merger, sale of assets or other similar disposition, to a person or entity who is not the current owner of at least 50 percent of the Common Stock of the Company, then the Shares shall no longer be restricted as provided for in this Paragraph 5. In the event of a transfer of control pursuant to which all shareholders of the Company are entitled to receive consideration, the Recipient shall be free to transfer any Shares he holds as part of such transaction without regard to the restrictions set forth in this Paragraph 5. |
(c) | Restricted Period . The term Restricted Period with respect to Shares means a period starting on the date of issuance of such shares to the Recipient and ending on such date five (5) years after the date of issuance. |
(d) | Cause . The term cause shall be defined as the occurrence of any of the following events: |
(i) willful misconduct, gross negligence, or dishonest or fraudulent conduct in the performance by the Recipient of his duties;
(ii) Recipients material failure to perform his duties after being given 20 days written notice and an opportunity to cure any performance issues;
(iii) the declaration by an independent certified medical authority that Recipient is addicted to drugs or alcohol or that he is mentally incompetent;
STOCK GRANT PLAN - Page 3
(iv) the Recipient is indicted for a felony or a misdemeanor involving moral turpitude;
(v) recommendation or suggestion by any bank regulatory authority having jurisdiction over the Bank that Recipients employment as an officer of the Bank should be discontinued or terminated.
(e) | Legend . Stock certificates representing Shares will be imprinted with a legend stating that the shares represented thereby are subject to the restrictions and other provisions of this Plan. |
(f) | Lapse of Restrictions; Cash Bonus . Unless earlier removed, the restrictions set forth in this Paragraph 5 will lapse when the Restricted Period expires. Within 30 days following the end of the Restricted Period, the Company will, or will cause the Bank to, pay a cash bonus to the Recipient in an amount equal to 25 percent of the fair market value of the Shares for which the Restricted Period has expired. |
6. | FINALITY OF DETERMINATION |
The Board will administer this Plan and construe its provisions. Any determination by the Board in carrying out, administering, or construing this Plan will be final and binding for all purposes and upon all interested persons and their heirs, successors, and personal representatives.
7. | LIMITATIONS |
(a) | No Right to Grant . No person will at any time have any right to receive a grant of Shares hereunder and no person will have authority to enter into an agreement for the making of a grant or to make any representation or warranty with respect thereto. |
(b) | Rights of Recipients . Recipients of grants will have no rights in respect thereof other than those set forth in the Plan, and such rights may not be assigned or transferred. If any attempt is made to sell, exchange, transfer, pledge, hypothecate, or otherwise dispose of any Shares held by the Recipient under restrictions which have not yet lapsed, the Shares that are the subject of such attempted disposition will be deemed forfeited and cancelled. Before issuance of Shares, no such shares will be earmarked for the Recipients accounts nor will such Recipients have any rights as stockholders with respect to such shares. |
(c) | No Right to Continued Employment . Neither the Companys action in establishing the Plan, nor any action taken by it or by the Board under the Plan, nor any provision of the Plan, will be construed as giving to any person the right to be retained in the employ of the Company and/or the Bank. |
STOCK GRANT PLAN - Page 4
8. | AMENDMENT, SUSPENSION OR TERMINATION OF PLAN |
The Board may amend, suspend or terminate the Plan in whole or in part at any time; provided that such amendment will not affect adversely rights or obligations with respect to grants previously made.
Adopted effective March 31, 2005
INDEPENDENT BANK GROUP CENTRAL TEXAS, INC. | ||
By: | ||
Secretary |
ATTEST:
Chairman of the Board |
STOCK GRANT PLAN - Page 5
EXHIBIT A
LETTER AGREEMENT
Dear :
I am pleased to advise you that the Board of Directors of Independent Bank Group Central Texas, Inc. (the Company), has on the date of this notice granted to you a total of shares (the Shares) of common stock of the Company (the Common Stock) under and pursuant to the Independent Bank Group Central Texas, Inc. Stock Grant Plan (the Plan), a copy of which is attached hereto. These shares are being issued to you in consideration of services rendered by you to the Company and/or the Companys subsidiary, Independent Bank.
These shares are subject to restriction on transfer and are subject to forfeiture as set forth in the Plan. By signing below, you agree to be bound by the terms of the Plan and the restrictions set forth therein. In addition, in consideration of the grant of the Shares, you agree as follows:
1. | Shareholders Agreement . Simultaneously with your execution of this Letter Agreement, you have signed the attached Shareholders Agreement to the extent that you have not already done so. You acknowledge and agree that the Shareholders Agreement restricts the transfer of the Shares. |
2. | Right to Repurchase . In the event your employment with the Company and/or the Bank is terminated for any reason after the end of the Restricted Period (as defined in the Plan), the Company shall have the right, but not the obligation, to repurchase from you or your estate, as applicable, all of the Shares. The repurchase price shall be equal to two (2) times the tangible book value of the Shares as of the date of the termination of your employment as determined from the Companys financial records. If the Company desires to exercise such right to repurchase, the Company shall give written notice to you within sixty (60) days of the date of termination of your employment. Within ten (10) days of the date of such notice, the Company shall deliver to you or your estate the repurchase price in cash (payable in the form of a check) and you or your estate shall deliver to the Company certificates evidencing the Shares duly endorsed and in proper form for transfer. |
3. |
Confidential Information . You recognize and acknowledge that you have access to certain information regarding the Bank and the Company, including without limitation business and financial methods and practices, plans, pricing and marketing techniques, customer identities, information and lists (the Confidential Information) and that the Confidential Information is valuable, special and unique property of the Bank and the Company. You shall not at any time, either during the term of this Letter Agreement or subsequent to the termination of your employment, disclose to others, use, copy, or permit to be copied, the |
STOCK GRANT PLAN - Page 6
Confidential Information of the Bank and the Company (regardless of whether developed by you) except in your performance of your official duties on behalf of the Bank. You further agree that if your employment with the Bank is terminated (for whatever reason), you shall not take with you but will leave with the Bank all records, papers and computer data and any copies thereof relating to the Confidential Information. You acknowledge and agree that all such papers, records and computer data or copies thereof are and shall remain the property of the Company and/or the Bank.
You must execute and deliver this Letter Agreement to the Company within thirty days in order to receive the Shares allocated to you. Upon receipt of an executed copy of this Letter Agreement, the Company will issue a certificate evidencing the number of Shares. The Company shall retain the certificate until the restrictions are no longer applicable.
Date:
Very truly yours, INDEPENDENT BANK GROUP CENTRAL TEXAS, INC. |
||
By: | ||
David R. Brooks Chairman of the Board |
ACCEPTED AND AGREED to as of .
Signature
|
Printed Name |
STOCK GRANT PLAN - Page 7
AMENDMENT TO
INDEPENDENT BANK GROUP, INC.
STOCK GRANT PLAN
Independent Bank Group, Inc. (the Company) adopted a Stock Grant Plan effective as of March 29, 2005 (the Plan). The Company desires to amend the Plan by amending the Letter Agreement attached to the Plan as Exhibit A . Specifically, the Company desires to amend the Right to Repurchase section of the Letter Agreement to provide that the repurchase price is the greater of (i) two times tangible book value of the applicable shares, or (ii) the market value of the applicable shares.
Accordingly, Exhibit A to the Plan is hereby amended to read in its entirety as attached to this Amendment.
All other terms of the Plan shall remain unchanged and the Plan shall continue in full force and effect.
Adopted effective as of .
INDEPENDENT BANK GROUP, INC. | ||
By: | ||
Secretary |
ATTEST: |
Chairman of the Board |
EXHIBIT A
LETTER AGREEMENT
Dear :
I am pleased to advise you that the Board of Directors of Independent Bank Group, Inc. (the Company), has on the date of this notice granted to you a total of shares (the Shares) of common stock of the Company (the Common Stock) under and pursuant to the Independent Bank Group, Inc. Stock Grant Plan (the Plan), a copy of which is attached hereto. These shares are being issued to you in consideration of services rendered by you to the Company and/or the Companys subsidiary, Independent Bank.
These shares are subject to restriction on transfer and are subject to forfeiture as set forth in the Plan. By signing below, you agree to be bound by the terms of the Plan and the restrictions set forth therein. In addition, in consideration of the grant of the Shares, you agree as follows:
1. | Shareholders Agreement . Simultaneously with your execution of this Letter Agreement, you have signed the attached Shareholders Agreement to the extent that you have not already done so. You acknowledge and agree that the Shareholders Agreement restricts the transfer of the Shares. |
2. | Right to Repurchase . In the event your employment with the Company and/or the Bank is terminated for any reason after the end of the Restricted Period (as defined in the Plan), the Company shall have the right, but not the obligation, to repurchase from you or your estate, as applicable, all of the Shares. The repurchase price shall be equal to the greater of (i) two (2) times the tangible book value of the Shares as of the date of the termination of your employment as determined from the Companys financial records, or (ii) the market value of the Shares as determined by the most recent bona fide sale of shares of Company common stock representing a minority interest in the Company. If the Company desires to exercise such right to repurchase, the Company shall give written notice to you within sixty (60) days of the date of termination of your employment. Within ten (10) days of the date of such notice, the Company shall deliver to you or your estate the repurchase price in cash (payable in the form of a check) and you or your estate shall deliver to the Company certificates evidencing the Shares duly endorsed and in proper form for transfer. |
3. |
Confidential Information . You recognize and acknowledge that you have access to certain information regarding the Bank and the Company, including without limitation business and financial methods and practices, plans, pricing and marketing techniques, customer identities, information and lists (the Confidential Information) and that the Confidential Information is valuable, special and unique property of the Bank and the Company. You shall not at any time, either |
1
during the term of this Letter Agreement or subsequent to the termination of your employment, disclose to others, use, copy, or permit to be copied, the Confidential Information of the Bank and the Company (regardless of whether developed by you) except in your performance of your official duties on behalf of the Bank. You further agree that if your employment with the Bank is terminated (for whatever reason), you shall not take with you but will leave with the Bank all records, papers and computer data and any copies thereof relating to the Confidential Information. You acknowledge and agree that all such papers, records and computer data or copies thereof are and shall remain the property of the Company and/or the Bank. |
You must execute and deliver this Letter Agreement to the Company within thirty days in order to receive the Shares allocated to you. Upon receipt of an executed copy of this Letter Agreement, the Company will issue a certificate evidencing the number of Shares. The Company shall retain the certificate until the restrictions are no longer applicable.
Date:
Very truly yours, | ||
INDEPENDENT BANK GROUP, INC. | ||
By: | ||
David R. Brooks Chairman of the Board |
ACCEPTED AND AGREED to as of .
Signature |
Printed Name |
2
Form of Notice of Grant
Letter Agreement relating to
Written Compensation Contracts
LETTER AGREEMENT
Dear :
I am pleased to advise you that the Board of Directors of Independent Bank Group, Inc. (the Company), has on the date of this notice granted to you a total of shares (the Shares) of common stock of the Company (the Common Stock) under and pursuant to the Independent Bank Group, Inc. Stock Grant Plan (the Plan), a copy of which is attached hereto. These shares are being issued to you in consideration of services rendered by you to the Company and/or the Companys subsidiary, Independent Bank.
These shares are subject to restriction on transfer and are subject to forfeiture as set forth in the Plan. By signing below, you agree to be bound by the terms of the Plan and the restrictions set forth therein. In addition, in consideration of the grant of the Shares, you agree as follows:
1. | Shareholders Agreement . Simultaneously with your execution of this Letter Agreement, you have signed the attached Shareholders Agreement to the extent that you have not already done so. You acknowledge and agree that the Shareholders Agreement restricts the transfer of the Shares. |
2. | Right to Repurchase . In the event your employment with the Company and/or the Bank is terminated for any reason after the end of the Restricted Period (as defined in the Plan), the Company shall have the right, but not the obligation, to repurchase from you or your estate, as applicable, all of the Shares. The repurchase price shall be equal to the greater of (i) two (2) times the tangible book value of the Shares as of the date of the termination of your employment as determined from the Companys financial records, or (ii) the market value of the Shares as determined by the most recent bona fide sale of shares of Company common stock representing a minority interest in the Company. If the Company desires to exercise such right to repurchase, the Company shall give written notice to you within sixty (60) days of the date of termination of your employment. Within ten (10) days of the date of such notice, the Company shall deliver to you or your estate the repurchase price in cash (payable in the form of a check) and you or your estate shall deliver to the Company certificates evidencing the Shares duly endorsed and in proper form for transfer. |
3. |
Confidential Information . You recognize and acknowledge that you have access to certain information regarding the Bank and the Company, including without limitation business and financial methods and practices, plans, pricing and marketing techniques, customer identities, information and lists (the Confidential Information) and that the Confidential Information is valuable, special and unique property of the Bank and the Company. You shall not at any time, either |
1
during the term of this Letter Agreement or subsequent to the termination of your employment, disclose to others, use, copy, or permit to be copied, the Confidential Information of the Bank and the Company (regardless of whether developed by you) except in your performance of your official duties on behalf of the Bank. You further agree that if your employment with the Bank is terminated (for whatever reason), you shall not take with you but will leave with the Bank all records, papers and computer data and any copies thereof relating to the Confidential Information. You acknowledge and agree that all such papers, records and computer data or copies thereof are and shall remain the property of the Company and/or the Bank. |
You must execute and deliver this Letter Agreement to the Company within thirty days in order to receive the Shares allocated to you. Upon receipt of an executed copy of this Letter Agreement, the Company will issue a certificate evidencing the number of Shares. The Company shall retain the certificate until the restrictions are no longer applicable.
Date:
Very truly yours, | ||
INDEPENDENT BANK GROUP, INC. | ||
By: | ||
David R. Brooks Chairman of the Board |
ACCEPTED AND AGREED to as of .
Signature |
Printed Name |
2
Exhibit 10.19
INDEPENDENT BANK GROUP, INC.
2012 STOCK GRANT PLAN
This 2012 Stock Grant Plan (the 2012 Plan) is adopted effective as of January 1, 2012, by Independent Bank Group, Inc., a Texas corporation (the Company) for the benefit of the eligible employees of the Company and its indirect subsidiary, Independent Bank, McKinney, Texas (the Bank). This 2012 Plan is a separate plan from the Stock Grant Plan of the Company dated March 29, 2005.
1. | PURPOSE |
The 2012 Plan is intended to advance the interests of the Company and its shareholders by encouraging and enabling selected officers and employees of the Company and the Bank to acquire and retain a proprietary interest in the Company by ownership of its stock so as to provide additional incentive for such individuals to promote the success of the Companys business through sharing in the growth of such business and to encourage them to remain in the employ of the Company and the Bank.
2. | STOCK GRANT RESERVE |
(a) | Stock Grant Reserve . The Company will establish a Stock Grant Reserve (so called herein) to which will be credited shares of the common stock of the Company (the Common Stock). The shares of Common Stock reserved in the Stock Grant Reserve and any such shares issued pursuant to this 2012 Plan are referred to herein as Shares. Should the shares of the Common Stock, due to a stock split or stock dividend or combination of shares or any other change, or exchange for other securities, by reclassification, reorganization, merger, consolidation, recapitalization or otherwise, be increased or decreased or changed into, or exchanged for, a different number or kind of shares of stock or other securities of the Company or of another entity, the number of shares then remaining in the Stock Grant Reserve shall be appropriately adjusted or automatically converted to reflect such action. If any such adjustment results in a fractional share, the fraction shall be disregarded. |
(b) | Adjustments to Reserve . Upon the grant of Shares hereunder, the Stock Grant Reserve will be reduced by the number of Shares so allocated. Upon the forfeiture and cancellation of Shares pursuant to this 2012 Plan, the Stock Grant Reserve shall be increased by such number of Shares, and such Shares may again be the subject of grants hereunder. |
(c) | Grants of Shares . Grants of Shares, as the Board of Directors of the Company (the Board) shall in its sole discretion determine, may be made from the authorized and unissued shares of Common Stock of the Company. |
2012 STOCK GRANT PLAN - Page 1
3. | ELIGIBILITY AND MAKING OF ALLOCATIONS |
(a) | Eligible Persons . Any officer or employee of the Company and/or the Bank who has signed a Letter Agreement in the form attached hereto as Exhibit A shall be eligible to receive a grant of Shares pursuant to the 2012 Plan. |
(b) | Selection by Board . From the persons eligible to receive grants, the Board shall determine the recipients of Shares and the number of Shares that should be granted to each such individual. The Board may make more than one grant to the same individual. In selecting those persons for whom it wishes to make grants and in determining the number of Shares it wishes to grant, the Board shall consider such matters it deems appropriate. A person who receives a grant of Shares pursuant to this 2012 Plan is hereinafter referred to as a Recipient and includes such individuals designated beneficiary, surviving spouse, estate, or legal representative. |
(c) | Participation in Other Stock Option Plans . A person who has received or later receives options to purchase stock under any stock option plan of the Company may participate in such other plan in accordance with its terms, and will not by reason thereof be ineligible to receive Shares under this 2012 Plan. |
(d) | Limit on Number of Allocable Shares . The total number of Shares which may be granted pursuant to this 2012 Plan will not exceed the amount available therefor in the Stock Grant Reserve. |
(e) | Notice to Recipient . When a grant is made, the Board shall advise the Recipient thereof by delivery of the Letter Agreement in substantially the same form as the attached Exhibit A . Upon receipt of a Letter Agreement, the Recipient shall execute and return such Letter Agreement to the Company. If the Recipient fails or refuses to execute and return the Letter Agreement within thirty days, the Shares granted to such Recipient shall be deemed to be forfeited. |
4. | ISSUANCE AND POSSESSION OF SHARES |
(a) | Grant . Upon receipt of an executed Letter Agreement, the Company shall record the granted number of Shares in the Recipients name and deduct the granted Shares from the Stock Grant Reserve. The Recipient shall thereupon be entitled to receive the Shares upon satisfaction of the vesting requirement set forth in Paragraph 5 hereof. Until the vesting requirement is satisfied, the Company shall not issue the Shares, and the Shares shall not be deemed to be outstanding. The Recipient will not be deemed to be a shareholder and will not have any rights of a shareholder of the Company with respect to such Shares, including any right to vote and to receive dividends or other distributions, including any stock dividend, split, or exchange applicable to shares of Common Stock of the Company until the vesting requirement is satisfied. |
2012 STOCK GRANT PLAN - Page 2
(b) | Stock Certificate and Cash Bonus . Following satisfaction of the vesting requirement set forth in Paragraph 5, (defined below), the Company shall issue the Shares, the Shares shall be deemed to be outstanding, and the Company shall deliver a certificate evidencing the Shares to the Recipient. Within 30 days following the end of the Vesting Period, the Company will, or will cause the Bank to, pay a cash bonus to the Recipient in an amount equal to 25 percent of the fair market value of the Shares for which the Vesting Period has expired. |
5. | RESTRICTIONS ON SHARES |
(a) | Restrictions . The restrictions to which Shares shall be subject are: |
(i) Prohibition Against Transfer . During the Vesting Period applicable to Shares and except as otherwise specifically provided in the 2012 Plan, the Recipient shall have no right to sell, exchange, transfer, pledge, hypothecate, or otherwise dispose of the Shares.
(ii) Forfeiture . If at any time before the Vesting Period ends, a Recipients employment is terminated for cause or as a result of voluntary resignation of employment by the Recipient, all of Recipients right, to receive the granted Shares shall be forfeited, and the Shares shall (a) continue to be treated as authorized and unissued shares; and (b) again become part of the Stock Grant Reserve.
(b) | Death; Disability; Termination without Cause; Change of Ownership . If, prior to the end of the Vesting Period, a Recipient dies or becomes disabled, is terminated not for cause or the ownership of control of the Company and the Bank is transferred, pursuant to a merger, sale of assets or other similar disposition, to a person or entity who is not the current owner of at least 50 percent of the Common Stock of the Company, then the Shares shall no longer be restricted as provided for in this Paragraph 5 and the vesting requirement shall be deemed to be satisfied and the Company shall issue the Shares to the Recipient or his estate. In the event of a transfer of control pursuant to which all shareholders of the Company are entitled to receive consideration, the vesting requirement shall be deemed to be satisfied and the Company shall issue the Shares to the Recipient, and the Recipient shall be free to transfer any Shares he holds as part of such transaction without regard to the restrictions set forth in this Paragraph 5. |
(c) | Vesting Period . The term Vesting Period with respect to Shares means a period starting on the date of grant of such shares to the Recipient and ending on such date five (5) years after the date of grant. |
(d) | Cause . The term cause shall be defined as the occurrence of any of the following events: |
(i) willful misconduct, gross negligence, or dishonest or fraudulent conduct in the performance by the Recipient of his duties;
2012 STOCK GRANT PLAN - Page 3
(ii) Recipients material failure to perform his duties after being given 20 days written notice and an opportunity to cure any performance issues;
(iii) the declaration by an independent certified medical authority that Recipient is addicted to drugs or alcohol or that he is mentally incompetent;
(iv) the Recipient is indicted for a felony or a misdemeanor involving moral turpitude;
(v) recommendation or suggestion by any bank regulatory authority having jurisdiction over the Bank that Recipients employment as an officer of the Bank should be discontinued or terminated.
6. | FINALITY OF DETERMINATION |
The Board will administer this 2012 Plan and construe its provisions. Any determination by the Board in carrying out, administering, or construing this 2012 Plan will be final and binding for all purposes and upon all interested persons and their heirs, successors, and personal representatives.
7. | LIMITATIONS |
(a) | No Right to Grant . No person will at any time have any right to receive a grant of Shares hereunder and no person will have authority to enter into an agreement for the making of a grant or to make any representation or warranty with respect thereto. |
(b) | Rights of Recipients . Recipients of grants will have no rights in respect thereof other than those set forth in the 2012 Plan, and such rights may not be assigned or transferred. If any attempt is made to sell, exchange, transfer, pledge, hypothecate, or otherwise dispose of any Shares granted to the Recipient before the end of any applicable Vesting Period, the Shares that are the subject of such attempted disposition will be deemed forfeited and cancelled. Before issuance of Shares, no such shares will be earmarked for the Recipients accounts nor will such Recipients have any rights as stockholders with respect to such Shares. |
(c) | No Right to Continued Employment . Neither the Companys action in establishing the 2012 Plan, nor any action taken by it or by the Board under the 2012 Plan, nor any provision of the 2012 Plan, will be construed as giving to any person the right to be retained in the employ of the Company and/or the Bank. |
2012 STOCK GRANT PLAN - Page 4
8. | AMENDMENT, SUSPENSION OR TERMINATION OF 2012 PLAN |
The Board may amend, suspend or terminate the 2012 Plan in whole or in part at any time; provided that such amendment will not affect adversely rights or obligations with respect to grants previously made.
Adopted effective January 1, 2012.
INDEPENDENT BANK GROUP, INC. | ||
By: | ||
Secretary |
ATTEST:
Chairman of the Board |
2012 STOCK GRANT PLAN - Page 5
EXHIBIT A
LETTER AGREEMENT
Dear :
I am pleased to advise you that the Board of Directors of Independent Bank Group, Inc. (the Company), has on the date of this notice granted to you a total of shares (the Shares) of common stock of the Company (the Common Stock) under and pursuant to the Independent Bank Group, Inc. 2012 Stock Grant Plan (the 2012 Plan), a copy of which is attached hereto. These shares are being issued to you in consideration of services rendered by you to the Company and/or the Companys subsidiary, Independent Bank.
These Shares are subject to satisfaction of the vesting requirement set forth in Paragraph 5 of the 2012 Plan. By signing below, you agree to be bound by the terms of the 2012 Plan and the restrictions set forth therein. In addition, in consideration of the grant of the Shares, you agree as follows:
1. | Shareholders Agreement . Simultaneously with your execution of this Letter Agreement, you have signed the attached Shareholders Agreement and Rights Agreement to the extent that you have not already done so. You acknowledge and agree that upon issuance of the Shares after the vesting requirement has been satisfied, the Shareholders Agreement and the Rights Agreement will restrict the transfer of the Shares. |
2. | Right to Repurchase . In the event your employment with the Company and/or the Bank is terminated for any reason after the end of the Vesting Period (as defined in the 2012 Plan) and the Shares have been issued to you, the Company shall have the right, but not the obligation, to repurchase from you or your estate, as applicable, all of the Shares. The repurchase price shall be equal to two (2) times the tangible book value of the Shares as of the date of the termination of your employment as determined from the Companys financial records. If the Company desires to exercise such right to repurchase, the Company shall give written notice to you within sixty (60) days of the date of termination of your employment. Within ten (10) days of the date of such notice, the Company shall deliver to you or your estate the repurchase price in cash (payable in the form of a check) and you or your estate shall deliver to the Company certificates evidencing the Shares duly endorsed and in proper form for transfer. |
3. | Confidential Information . You recognize and acknowledge that you have access to certain information regarding the Bank and the Company, including without limitation business and financial methods and practices, plans, pricing and marketing techniques, customer identities, information and lists (the Confidential Information) and that the Confidential Information is valuable, special and |
2012 STOCK GRANT PLAN - Page 6
unique property of the Bank and the Company. You shall not at any time, either during the term of this Letter Agreement or subsequent to the termination of your employment, disclose to others, use, copy, or permit to be copied, the Confidential Information of the Bank and the Company (regardless of whether developed by you) except in your performance of your official duties on behalf of the Bank. You further agree that if your employment with the Bank is terminated (for whatever reason), you shall not take with you but will leave with the Bank all records, papers and computer data and any copies thereof relating to the Confidential Information. You acknowledge and agree that all such papers, records and computer data or copies thereof are and shall remain the property of the Company and/or the Bank. |
You must execute and deliver this Letter Agreement to the Company within thirty days in order to perfect this grant of Shares to you. Upon receipt of an executed copy of this Letter Agreement, we will record this grant in the Companys records, and upon satisfaction of the applicable vesting requirement, the Company will issue a certificate evidencing the number of Shares.
Date:
Very truly yours, | ||
INDEPENDENT BANK GROUP, INC. | ||
By: | ||
David R. Brooks | ||
Chairman of the Board |
ACCEPTED AND AGREED to as of .
Signature |
Printed Name |
2012 STOCK GRANT PLAN - Page 7
EXHIBIT 10.20
INDEPENDENT BANK GROUP, INC.
2013 EQUITY INCENTIVE PLAN
1. | Purpose . The purpose of the 2013 EQUITY INCENTIVE PLAN (the Plan) is to assist INDEPENDENT BANK GROUP, INC., a Texas corporation and registered bank holding company with its principal offices in McKinney, Texas (the Company), and its Related Entities (as hereinafter defined) in attracting, motivating, retaining and rewarding high-quality executives and other employees, officers, directors, consultants and other persons who provide services to the Company or its Related Entities by enabling such persons to acquire or increase an ownership interest in the Company in order to strengthen the mutuality of interests between such persons and the Companys shareholders, and providing such persons with long term performance incentives to expend their maximum efforts in the creation of shareholder value. |
2. | Definitions . For purposes of the Plan, the following terms shall be defined as set forth below, in addition to such terms defined in Section 1 hereof. |
a) | Award means any Option, Restricted Stock Award, Deferred Stock Award, Share granted as a bonus or in lieu of another award, Dividend Equivalent, Other Stock-Based Award or Performance Award, together with any other right or interest, granted to a Participant under the Plan. |
b) | Award Agreement means any written agreement, contract or other instrument or document evidencing any Award granted by the Committee hereunder. |
c) | Beneficiary means the person, persons, trust or trusts that have been designated by a Participant in his or her most recent written beneficiary designation filed with the Committee to receive the benefits specified under the Plan upon such Participants death or to which Awards or other rights are transferred if and to the extent permitted under Section 10(b) . If, upon a Participants death, there is no designated Beneficiary or surviving designated Beneficiary, then the term Beneficiary means the person, persons, trust or trusts entitled by will or the laws of descent and distribution to receive such benefits. |
d) | Beneficial Owner shall have the meaning ascribed to such term in Rule 13d-3 under the Exchange Act and any successor to such Rule. |
e) | Board means the Companys Board of Directors. |
f) | Cause shall, with respect to any Participant have the meaning specified in the Award Agreement. In the absence of any definition in the Award Agreement, Cause shall have the equivalent meaning or the same meaning as cause or for cause set forth in any employment, consulting or other agreement for the performance of services between the Participant and the Company or a Related Entity or, in the absence of any such agreement or any such definition in such agreements, such term shall mean (i) the failure by the Participant to perform, in a reasonable manner, his or her duties as assigned by the Company or a Related Entity, (ii) any violation or breach by the Participant of his or her employment, consulting or other similar agreement with the Company or a Related Entity, if any, (iii) any violation or breach by the Participant of any noncompetition, nonsolicitation, nondisclosure and/or other similar agreement with the Company or a Related Entity, (iv) any act by the Participant of dishonesty or bad faith with respect to the Company or a Related Entity, (v) use of alcohol, drugs or other similar substances in a manner that adversely affects the Participants work performance or (vi) the commission by the Participant of any act, misdemeanor or crime reflecting unfavorably upon the Participant or the Company or any Related Entity. The good faith determination by the Committee of whether the Participants Continuous Service was terminated by the Company for Cause shall be final and binding for all purposes hereunder. |
g) | Change in Control means a Change in Control as defined with related terms in Section 9(b) . |
IBG 2013 Equity Incentive Plan |
h) | Code means the Internal Revenue Code of 1986, as amended from time to time, including regulations thereunder and successor provisions and regulations thereto. |
i) | Committee means the Compensation Committee of the Board, which shall be comprised solely of two or more members of the Board, each one of whom is (i) an outside director (within the meaning of Section 162(m) of the Code and applicable interpretive authority thereunder), (ii) a nonemployee director (within the meaning of Rule 16b-3) and (iii) an Independent director (within the meaning of the rules of the NASDAQ Global Market); provided however, with respect to powers to grant and establish the terms of Awards to Directors and all other powers that are expressly reserved to the Board under the Plan, references to Committee shall be deemed to refer to the Board. |
j) | Consultant means any person (other than an Employee or a Director, solely with respect to rendering services in such persons capacity as a director) who is engaged by the Company or any Related Entity to render consulting or advisory services to the Company or such Related Entity. |
k) | Continuous Service means the uninterrupted provision of services to the Company or any Related Entity in any capacity of Employee, Director, Consultant or other service provider. Continuous Service shall not be considered to be interrupted in the case of (i) any approved leave of absence, (ii) transfers among the Company, any Related Entities or any successor entities, in any capacity of Employee, Director, Consultant or other service provider or (iii) any change in status as long as the individual remains in the service of the Company or a Related Entity in any capacity of Employee, Director, Consultant or other service provider (except as otherwise provided in the Award Agreement). An approved leave of absence shall include sick leave, military leave or any other authorized personal leave. |
l) | Covered Employee means an Eligible Person who is a covered employee within the meaning of Section 162(m)(3) of the Code or any successor provision thereto. |
m) | Deferred Stock means a right to receive Shares, including Restricted Stock, cash or a combination thereof, at the end of a specified deferral period. |
n) | Deferred Stock Award means an Award of Deferred Stock granted to a Participant under Section 6(d) . |
o) | Director means a member of the Board or the board of directors of any Related Entity. |
p) | Disability means a permanent and total disability (within the meaning of Section 22(e) of the Code), as determined by a medical doctor satisfactory to the Committee. |
q) | Discounted Option means any Option awarded under Section 6(b) with an exercise price that is less than the Fair Market Value of a Share on the date of grant. |
r) | Dividend Equivalent means a right, granted to a Participant under Section 6(f) , to receive cash, Shares, other Awards or other property equal in value to regular dividends paid with respect to a specified number of Shares, or other periodic payments. |
s) | Effective Date means the effective date of the Plan, which is February 21, 2013. |
t) | Eligible Person means each officer, Director, Employee, Consultant and other person who provides services to the Company or any Related Entity. The foregoing notwithstanding, only employees of the Company, or any parent corporation or subsidiary corporation of the Company (as those terms are defined in Code Section 424(e) and Section 424(f), respectively) shall be Eligible Persons for purposes of receiving any Incentive Stock Options. An Employee on leave of absence may be considered as still in the employ of the Company or a Related Entity for purposes of eligibility for participation in the Plan. |
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u) | Employee means any person, including an officer or Director, who is an employee of the Company or any Related Entity. The payment of a directors fee by the Company or a Related Entity shall not be sufficient to constitute employment by the Company. |
v) | Exchange Act means the Securities Exchange Act of 1934, as amended from time to time, including rules thereunder and successor provisions and rules thereto. |
w) | Fair Market Value means the fair market value of Shares, Awards or other property as determined in good faith by the Committee or under reasonable procedures established by the Committee. Unless otherwise determined by the Committee, the Fair Market Value of a Share as of any given date shall be the closing sale price per Share reported on a consolidated basis for stock listed on the principal stock exchange or market on which Shares are traded on the date as of which such value is being determined or, if there is no sale on that date, then on the last previous day on which a sale was reported. |
x) | Good Reason shall, with respect to any Participant, have the meaning specified in the Award Agreement. In the absence of any definition in the Award Agreement, Good Reason shall have the equivalent meaning or the same meaning as good reason or for good reason set forth in any employment, consulting or other agreement for the performance of services between the Participant and the Company or a Related Entity or, in the absence of any such agreement or any such definition in such agreement, such term shall mean (i) a reduction in base salary, a material change in the calculation of the performance bonus program applicable to the Participant, relocation of the Participants primary place of employment by 50 miles or more, or a meaningful reduction in material functional responsibilities, excluding for this purpose an isolated, insubstantial and/or inadvertent action not taken in bad faith and which is remedied by the Company or a Related Entity promptly after receipt of notice thereof given by the Participant; or (ii) any material failure by the Company or a Related Entity to comply with its obligations to the Participant as agreed upon, other than an isolated, insubstantial and/or inadvertent failure not occurring in bad faith and which is remedied by the Company or a Related Entity promptly after receipt of written notice thereof given by the Participant. |
y) | Incentive Stock Option means any Option intended to be designated as an incentive stock option within the meaning of Section 422 of the Code or any successor provision thereto. |
z) | Independent, when referring to either the Board or members of the Committee, shall have the same meaning as used in the rules of the NASDAQ Global Market or any national securities exchange on which any securities of the Company are listed or quoted for trading, and if not listed or quoted for trading, by the rules of the NASDAQ Global Market. |
aa) | Incumbent Board means the Incumbent Board as defined in Section 9(b)(ii) . |
bb) | Option means a right granted to a Participant under Section 6(b) to purchase Shares or other Awards at a specified price during specified time periods. |
cc) | Optionee means a person to whom an Option is granted under this Plan or any person who succeeds to the rights of such person under this Plan. |
dd) | Option Proceeds shall mean the cash actually received by the Company for the exercise price in connection with the exercise of Options that are exercised after the Effective Date of the Plan. With respect to Options, to the extent that a Participant pays the exercise price and/or withholding taxes with Shares, Option Proceeds shall not be calculated with respect to the amounts so paid in Shares. |
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ee) | Other Stock-Based Awards means Awards granted to a Participant under Section 6(h) . |
ff) | Participant means a person who has been granted an Award under the Plan that remains outstanding, including a person who is no longer an Eligible Person. |
gg) | Performance Award shall mean any Award of Performance Shares or Performance Units granted pursuant to Section 6(g) . |
hh) | Performance Period means that period established by the Committee at the time any Performance Award is granted or at any time thereafter during which any performance goals specified by the Committee with respect to such Award are to be measured. |
ii) | Performance Share means any grant pursuant to Section 6 of a unit valued by reference to a designated number of Shares, which value may be paid to the Participant by delivery of such property as the Committee shall determine, including cash, Shares, other property or any combination thereof, upon achievement of such performance goals during the Performance Period as the Committee shall establish at the time of such grant or thereafter. |
jj) | Performance Unit means any grant pursuant to Section 6 of a unit valued by reference to a designated amount of property (including cash) other than Shares, which value may be paid to the Participant by delivery of such property as the Committee shall determine, including cash, Shares, other property or any combination thereof, upon achievement of such performance goals during the Performance Period as the Committee shall establish at the time of such grant or thereafter. |
kk) | Person shall have the meaning ascribed to such term in Section 3(a)(9) of the Exchange Act and used in Section 13(d) and Section 14(d) thereof, and shall include a group as defined in Section 13(d) thereof. |
ll) | Related Entity means any Subsidiary, and any business, corporation, partnership, limited liability company or other entity designated by Board in which the Company or a Subsidiary holds a substantial ownership interest, directly or indirectly. |
mm) | Restricted Stock means any Share issued with the restriction that the holder may not sell, transfer, pledge or assign such Share and with such other restrictions as the Committee, in its sole discretion, may impose (including any restriction on the right to vote such Share and the right to receive any dividends), which restrictions may lapse separately or in combination at such time or times, in installments or otherwise, as the Committee may deem appropriate. |
nn) | Restricted Stock Award means an Award granted to a Participant under Section 6(c) . |
oo) | Rule 16b-3 means Rule 16b-3, as from time to time in effect and applicable to the Plan and Participants, promulgated by the Securities and Exchange Commission under Section 16 of the Exchange Act. |
pp) | Shares means the shares of Common Stock of the Company, par value $0.01 per share, and such other securities as may be substituted (or resubstituted) for Shares pursuant to Section 10(c) . |
qq) | Subsidiary means any corporation or other entity in which the Company has a direct or indirect ownership interest of 50% or more of the total combined voting power of the then outstanding securities or interests of such corporation or other entity entitled to vote generally in the election of directors or in which the Company has the right to receive 50% or more of the distribution of profits or 50% or more of the assets on liquidation or dissolution. |
rr) | Substitute Awards shall mean Awards granted or Shares issued by the Company in assumption of, or in substitution or exchange for, awards previously granted, or the right or obligation to make future awards, by a company acquired by the Company or any Related Entity or with which the Company or any Related Entity combines. |
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3. | Administration . |
a) | Authority of the Committee . The Plan shall be administered by the Committee, except to the extent the Board elects to administer the Plan, in which case the Plan shall be administered by only those directors who are Independent Directors, in which case references herein to the Committee, shall be deemed to include references to the Independent members of the Board. The Committee shall have full and final authority, subject to and consistent with the provisions of the Plan, to select Eligible Persons to become Participants, grant Awards, determine the type, number and other terms and conditions of, and all other matters relating to, Awards, prescribe Award Agreements (which need not be identical for each Participant) and rules and regulations for the administration of the Plan, construe and interpret the Plan and Award Agreements and correct defects, supply omissions or reconcile inconsistencies therein, and to make all other decisions and determinations as the Committee may deem necessary or advisable for the administration of the Plan. In exercising any discretion granted to the Committee under the Plan or pursuant to any Award, the Committee shall not be required to follow past practices, act in a manner consistent with past practices, or treat any Eligible Person in a manner consistent with the treatment of other Eligible Persons. |
b) | Manner of Exercise of Committee Authority . The Committee, and not the Board, shall exercise sole and exclusive discretion on any matter relating to a Participant then subject to Section 16 of the Exchange Act with respect to the Company to the extent necessary in order that transactions by such Participant shall be exempt under Rule 16b-3 under the Exchange Act. Any action of the Committee shall be final, conclusive and binding on all persons, including the Company, its Related Entities, Participants, Beneficiaries, transferees under Section 10(b) or other persons claiming rights from or through a Participant, and shareholders. The express grant of any specific power to the Committee, and the taking of any action by the Committee, shall not be construed as limiting any power or authority of the Committee. The Committee may delegate to officers or Employees of the Company or any Related Entity, or committees thereof, the authority, subject to such terms as the Committee shall determine to perform such functions, including administrative functions as the Committee may determine, to the extent that such delegation will not result in the loss of an exemption under Rule 16b-3 (d)(1) for Awards granted to Participants subject to Section 16 of the Exchange Act in respect of the Company and will not cause Awards intended to qualify as performance-based compensation under Code Section 162(m) to fail to so qualify. The Committee may appoint agents to assist it in administering the Plan. |
c) | Limitation of Liability . The Committee and the Board, and each member thereof, shall be entitled to, in good faith, rely or act upon any report or other information furnished to him or her by any officer or Employee, the Companys independent auditors, Consultants or any other agents assisting in the administration of the Plan. Members of the Committee and the Board, and any officer or Employee acting at the direction or on behalf of the Committee or the Board, shall not be personally liable for any action or determination taken or made in good faith with respect to the Plan, and shall, to the extent permitted by law, be fully indemnified and protected by the Company with respect to any such action or determination. |
4. | Shares Subject to Plan . |
a) | Limitation on Overall Number of Shares Subject to Awards . Subject to adjustment as provided in Section 10(c) , the maximum aggregate number of Shares that may be (i) issued under the Plan pursuant to the exercise of Options and (ii) issued pursuant to Restricted Stock Awards, Deferred Shares and Performance Shares is 800,000 Shares. No Participant may receive Awards representing more than 100,000 Shares in any one calendar year. In addition, the maximum number of Performance Units that may be granted to a Participant in any one calendar year is 100,000 for each full or fractional year included in the Performance Period for the grant of |
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Performance Units during such calendar year. This limitation shall be applied as of any date by taking into account the number of Shares available to be made the subject of new Awards as of such date, plus the number of Shares previously issued under the Plan and the number of Shares subject to outstanding Awards as of such date. Any Share delivered under the Plan may consist, in whole or in part, of authorized and unissued Shares or treasury Shares. |
b) | Application of Limitation to Grants of Awards . No Award may be granted if the number of Shares to be delivered in connection with such an Award or, in the case of an Award relating to Shares but settled only in cash, the number of Shares to which such Award relates, exceeds the number of Shares remaining available under the Plan, minus the number of Shares deliverable in settlement of or relating to then outstanding Awards. The Committee may adopt reasonable counting procedures to ensure appropriate counting, avoid double counting (as, for example, in the case of tandem or Substitute Awards) and make adjustments if the number of Shares actually delivered differs from the number of Shares previously counted in connection with an Award. |
c) | Availability of Shares Not Delivered Under Awards . |
i. | If any Shares subject to an Award are forfeited, expire or otherwise terminate without issuance of such Shares, or any Award is settled for cash or otherwise does not result in the issuance of all or a portion of the Shares subject to such Award or award, the Shares shall, to the extent of such forfeiture, expiration, termination, cash settlement or nonissuance, again be available for Awards under the Plan, subject to Section 4(c)(v) . |
ii. | In the event that any Option or other Award granted hereunder is exercised through the tendering of Shares (either actually or by attestation) or by the withholding of Shares by the Company, or withholding tax liabilities arising from such Option, or other Award are satisfied by the tendering of Shares (either actually or by attestation) or by the withholding of Shares by the Company, then only the number of Shares issued net of the Shares tendered or withheld shall be counted for purposes of determining the maximum number of Shares available for grant under the Plan. |
iii. | Shares reacquired by the Company, if any, on the open market using Option Proceeds shall be available for Awards under the Plan. The increase in Shares available pursuant to the repurchase of Shares with Option Proceeds shall not be greater than the amount of such proceeds divided by the Fair Market Value of a Share on the date of exercise of the Option giving rise to such Option Proceeds. |
iv. | Substitute Awards shall not reduce the Shares authorized for grant under the Plan or authorized for grant to a Participant in any period. Additionally, in the event that a company acquired by the Company or any Related Entity or with which the Company or any Related Entity combines has shares available under a pre-existing plan approved by shareholders and not adopted in contemplation of such acquisition or combination, the shares available for grant pursuant to the terms of such pre-existing plan (as adjusted, to the extent appropriate, using the exchange ratio or other adjustment or valuation ratio or formula used in such acquisition or combination to determine the consideration payable to the holders of Common Stock of the entities party to such acquisition or combination) may be used for Awards under the Plan and shall not reduce the Shares authorized for grant under the Plan; provided that Awards using such available shares shall not be made after the date awards or grants could have been made under the terms of the pre-existing plan, absent the acquisition or combination, and shall only be made to individuals who were not Employees or Directors prior to such acquisition or combination. |
v. | Any Shares that again become available for grant pursuant to this Section 4(c) shall be added back to the Shares available for grant under the Plan on a one (1) Share to one (1) Share basis as if such Shares were granted under the Plan. |
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vi. | Notwithstanding anything in this Section 4(c) to the contrary and solely for purposes of determining whether Shares are available for the grant of Incentive Stock Options, the maximum aggregate number of shares that may be granted under this Plan shall be determined without regard to any Shares restored pursuant to this Section 4(c) that, if taken into account, would cause the Plan to fail the requirement under Code Section 422 that the Plan designate a maximum aggregate number of shares that may be issued. |
d) | No Further Awards Under Prior Plan . In light of the adoption of this Plan, no further awards shall be made under any prior plans after the Effective Date. |
5. | Eligibility; Per-Person Award Limitations . Awards may be granted under the Plan only to Eligible Persons. Subject to adjustment as provided in Section 10(c) , in each calendar year during any part of which the Plan is in effect, no Participant may be granted (i) Options with respect to more than 100,000 Shares or (ii) Restricted Stock, Performance Shares and/or Other Stock-Based Awards with respect to more than 100,000 Shares. |
6. | Specific Terms of Awards . |
a) | General . Awards may be granted on the terms and conditions set forth in this Section 6 . In addition, the Committee may impose on any Award or the exercise thereof, at the date of grant or thereafter (subject to Section 10(e) ), such additional terms and conditions, not inconsistent with the provisions of the Plan, as the Committee shall determine, including terms requiring forfeiture of Awards in the event of termination of Continuous Service by the Participant and terms permitting a Participant to make elections relating to his or her Award. The Committee shall retain full power and discretion to accelerate, waive or modify, at any time, any term or condition of an Award that is not mandatory under the Plan. Except in cases in which the Committee is authorized to require other forms of consideration under the Plan, no consideration other than services may be required for the grant (but not the exercise) of any Award. |
b) | Options . The Committee is authorized to grant Options to any Eligible Person on the following terms and conditions: |
i. | Exercise Price . Other than in connection with Substitute Awards, the exercise price per Share purchasable under an Option shall be determined by the Committee, provided that such exercise price shall not be less than 100% of the Fair Market Value of a Share on the date of grant of the Option and shall not, in any event, be less than the par value of a Share on the date of grant of the Option. If an Employee owns or is deemed to own (by reason of the attribution rules applicable under Section 424(d) of the Code) more than 10% of the combined voting power of all classes of stock of the Company (or any parent corporation or subsidiary corporation of the Company, as those terms are defined in Section 424(e) and Section 424(f) of the Code, respectively) and an Incentive Stock Option is granted to such Employee, the exercise price of such Incentive Stock Option (to the extent required by the Code at the time of grant) shall be no less than 110% of the Fair Market Value of a Share on the date such Incentive Stock Option is granted. |
ii. | Time and Method of Exercise . The Committee shall determine the time or times at which or the circumstances under which an Option may be exercised in whole or in part (including based on achievement of performance goals and/or future service requirements), the time or times at which Options shall cease to be or become exercisable following termination of Continuous Service or upon other conditions, the methods by which the exercise price may be paid or deemed to be paid (including in the discretion of the Committee a cashless exercise procedure), the form of such payment, including cash, Shares, other Awards or awards granted under other plans of the Company or a Related Entity, or other property (including notes or other contractual obligations of Participants to make payment on a deferred basis provided that such deferred payments are not in violation of the Sarbanes-Oxley Act of 2002, or any rule or regulation adopted thereunder or any other applicable law), and the methods by or forms in which Shares will be delivered or deemed to be delivered to Participants. |
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iii. | Incentive Stock Options . The terms of any Incentive Stock Option granted under the Plan shall comply in all respects with the provisions of Section 422 of the Code. Anything in the Plan to the contrary notwithstanding, no term of the Plan relating to Incentive Stock Options shall be interpreted, amended or altered, nor shall any discretion or authority granted under the Plan be exercised, so as to disqualify either the Plan or any Incentive Stock Option under Section 422 of the Code, unless the Participant has first requested, or consents to, the change that will result in such disqualification. Thus, if and to the extent required to comply with Section 422 of the Code, Options granted as Incentive Stock Options shall be subject to the following special terms and conditions: |
A. | the Option shall not be exercisable more than ten years after the date such Incentive Stock Option is granted; provided, however, that if a Participant owns or is deemed to own (by reason of the attribution rules of Section 424(d) of the Code) more than 10% of the combined voting power of all classes of stock of the Company (or any parent corporation or subsidiary corporation of the Company, as those terms are defined in Section 424(e) and Section 424(f) of the Code, respectively) and the Incentive Stock Option is granted to such Participant, the term of the Incentive Stock Option shall be (to the extent required by the Code at the time of the grant) for no more than five years from the date of grant; and |
B. | the aggregate Fair Market Value (determined as of the date the Incentive Stock Option is granted) of the Shares with respect to which Incentive Stock Options granted under the Plan and all other option plans of the Company (and any parent corporation or subsidiary corporation of the Company, as those terms are defined in Section 424(e) and Section 424(f) of the Code, respectively) during any calendar year exercisable for the first time by the Participant during any calendar year shall not (to the extent required by the Code at the time of the grant) exceed $100,000. |
c) | Restricted Stock Awards . The Committee is authorized to grant Restricted Stock Awards to any Eligible Person on the following terms and conditions: |
i. | Grant and Restrictions . Restricted Stock Awards shall be subject to such restrictions on transferability, risk of forfeiture and other restrictions, if any, as the Committee may impose, or as otherwise provided in this Plan, covering a period of time specified by the Committee (the Restriction Period). The terms of any Restricted Stock Award granted under the Plan shall be set forth in a written Award Agreement, which shall contain provisions determined by the Committee and not inconsistent with the Plan. The restrictions may lapse separately or in combination at such times, under such circumstances (including based on achievement of performance goals and/or future service requirements), in such installments or otherwise, as the Committee may determine at the date of grant or thereafter. Awards of Restricted Stock shall specifically include granted or Awarded Shares that have yet to vest. Except to the extent restricted under the terms of the Plan and any Award Agreement relating to a Restricted Stock Award, a Participant granted Restricted Stock shall have all of the rights of a shareholder, including the right to vote the Restricted Stock and the right to receive dividends thereon (subject to any mandatory reinvestment or other requirement imposed by the Committee). During the Restriction Period, subject to Section 10(b) , the Restricted Stock may not be sold, transferred, pledged, hypothecated, margined or otherwise encumbered by the Participant. |
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ii. | Forfeiture . If the Participants Continuous Service during the applicable Restriction Period is terminated voluntarily by the Participant without Good Reason or by the Company for Cause, then the Participants Restricted Stock that is at that time subject to restriction shall be forfeited and reacquired by the Company. If the Participants Continuous Service during the applicable Restriction Period is terminated due to the death or Disability of the Participant, by the Participant for Good Reason, or by the Company not for Cause, then the Participants Restricted Stock shall automatically vest and shall no longer be subject to restriction. |
iii. | Certificates for Stock . Restricted Stock granted under the Plan may be evidenced in such manner as the Committee shall determine. If certificates representing Restricted Stock are registered in the name of the Participant, the Committee may require that such certificates bear an appropriate legend referring to the terms, conditions and restrictions applicable to such Restricted Stock, that the Company retain physical possession of the certificates, and that the Participant deliver a stock power to the Company, endorsed in blank, relating to the Restricted Stock. |
iv. | Stock Splits . Unless otherwise determined by the Committee, Shares distributed in connection with a stock split or stock dividend, and other property distributed as a dividend, shall be subject to restrictions and a risk of forfeiture to the same extent as the Restricted Stock with respect to which such Shares or other property have been distributed. |
v. | Minimum Vesting Period . Except for certain limited situations (including termination of employment, a Change in Control referred to in Section 9 , grants to new hires to replace forfeited compensation, grants representing payment of earned Performance Awards or other incentive compensation, or grants to Directors), Restricted Stock Awards subject solely to future service requirements shall have a Restriction Period of not less than three years from date of grant (but permitting pro-rata vesting over such time). |
d) | Deferred Stock Award . The Committee is authorized to grant Deferred Stock Awards to any Eligible Person on the following terms and conditions: |
i. | Award and Restrictions . Satisfaction of a Deferred Stock Award shall occur upon expiration of the deferral period specified for such Deferred Stock Award by the Committee (or, if permitted by the Committee, as elected by the Participant). In addition, a Deferred Stock Award shall be subject to such restrictions (which may include a risk of forfeiture) as the Committee may impose, if any, which restrictions may lapse at the expiration of the deferral period or at earlier specified times (including based on achievement of performance goals and/or future service requirements), separately or in combination, in installments or otherwise, as the Committee may determine. A Deferred Stock Award may be satisfied by delivery of Shares, cash equal to the Fair Market Value of the specified number of Shares covered by the Deferred Stock, or a combination thereof, as determined by the Committee at the date of grant or thereafter. Prior to satisfaction of a Deferred Stock Award, a Deferred Stock Award carries no voting or dividend or other rights associated with Share ownership. |
ii. | Forfeiture . Except as otherwise determined by the Committee, upon termination of a Participants Continuous Service during the applicable deferral period or portion thereof to which forfeiture conditions apply (as provided in the Award Agreement evidencing the Deferred Stock Award), the Participants Deferred Stock Award that is at that time subject to deferral (other than a deferral at the election of the Participant) shall be forfeited; provided that the Committee may provide, by rule or regulation or in any Award Agreement, or may determine in any individual case, that restrictions or forfeiture conditions relating to a Deferred Stock Award shall be waived in whole or in part in the event of terminations resulting from specified causes, and the Committee may in other cases waive in whole or in part the forfeiture of any Deferred Stock Award. |
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iii. | Dividend Equivalents . Unless otherwise determined by the Committee at date of grant, any Dividend Equivalents that are granted with respect to any Deferred Stock Award shall be either (A) paid with respect to such Deferred Stock Award at the dividend payment date in cash or in Shares of unrestricted stock having a Fair Market Value equal to the amount of such dividends or (B) deferred with respect to such Deferred Stock Award and the amount or value thereof automatically deemed reinvested in additional Deferred Stock, other Awards or other investment vehicles, as the Committee shall determine. |
e) | Bonus Stock and Awards in Lieu of Obligations . The Committee is authorized to grant Shares to any Eligible Persons as a bonus, or to grant Shares or other Awards in lieu of obligations to pay cash or deliver other property under the Plan or under other plans or compensatory arrangements, provided that, in the case of Eligible Persons subject to Section 16 of the Exchange Act, the amount of such grants remains within the discretion of the Committee to the extent necessary to ensure that acquisitions of Shares or other Awards are exempt from liability under Section 16(b) of the Exchange Act. Shares or Awards granted hereunder shall be subject to such other terms as shall be determined by the Committee. |
f) | Dividend Equivalents . The Committee is authorized to grant Dividend Equivalents to any Eligible Person entitling the Eligible Person to receive cash, Shares, other Awards or other property equal in value to the regular dividends paid with respect to a specified number of Shares, or other periodic payments. Dividend Equivalents may be awarded on a free-standing basis or in connection with another Award. The Committee may provide that Dividend Equivalents shall be paid or distributed when accrued or shall be deemed to have been reinvested in additional Shares, Awards or other investment vehicles, and subject to such restrictions on transferability and risks of forfeiture, as the Committee may specify. |
g) | Performance Awards . The Committee is authorized to grant Performance Awards to any Eligible Person payable in cash, Shares or other Awards, on terms and conditions established by the Committee, subject to the provisions of Section 8 . The performance criteria to be achieved during any Performance Period and the length of the Performance Period shall be determined by the Committee upon the grant of each Performance Award; provided, however, that a Performance Period shall not be shorter than 12 months nor longer than five years, except as provided in Section 8 or as may be provided in an Award Agreement, Performance Awards will be distributed only after the end of the relevant Performance Period. The performance goals to be achieved for each Performance Period shall be conclusively determined by the Committee and may be based upon the criteria set forth in Section 8 . The amount of the Award to be distributed shall be conclusively determined by the Committee. Performance Awards may be paid in a lump sum or in installments following the close of the Performance Period or, in accordance with procedures established by the Committee, on a deferred basis. |
h) | Other Stock-Based Awards . The Committee is authorized, subject to limitations under applicable law, to grant to any Eligible Person such other Awards that may be denominated or payable in, valued in whole or in part by reference to, or otherwise based on, or related to, Shares, as deemed by the Committee to be consistent with the purposes of the Plan. Other Stock-Based Awards may be granted to Participants either alone or in addition to other Awards granted under the Plan, and such Other Stock-Based Awards shall also be available as a form of payment in the settlement of other Awards granted under the Plan. The Committee shall determine the terms and conditions of such Awards. Shares delivered pursuant to an Award in the nature of a purchase right granted under this Section 6(h) shall be purchased for such consideration (including loans from the Company or a Related Entity; provided that such loans are not in violation of the Sarbanes Oxley Act of 2002, or any rule or regulation adopted thereunder or any other applicable law), paid for at such times, by such methods, and in such forms, including cash, Shares, other Awards or other property, as the Committee shall determine. |
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7. | Certain Provisions Applicable to Awards. |
a) | Stand-Alone, Additional, Tandem and Substitute Awards . Awards granted under the Plan may, in the discretion of the Committee and subject to compliance with law and the rules of the NASDAQ Global Market, be granted either alone or in addition to, in tandem with, or in substitution or exchange for, any other Award or any award granted under another plan of the Company, any Related Entity, or any business entity to be acquired by the Company or a Related Entity, or any other right of a Participant to receive payment from the Company or any Related Entity. Such additional, tandem, and substitute or exchange Awards may be granted at any time. If an Award is granted in substitution or exchange for another Award or award, the Committee shall require the surrender of such other Award or award in consideration for the grant of the new Award. In addition, Awards may be granted in lieu of cash compensation, including in lieu of cash amounts payable under other plans of the Company or any Related Entity, in which the value of Stock subject to the Award is equivalent in value to the cash compensation (for example, Deferred Stock or Restricted Stock), or in which the exercise price, grant price or purchase price of the Award in the nature of a right that may be exercised is equal to the Fair Market Value of the underlying Stock minus the value of the cash compensation surrendered. |
b) | Term of Awards . The term of each Award shall be for such period as may be determined by the Committee; provided that in no event shall the term of any Option exceed a period of ten years (or in the case of an Incentive Stock Option such shorter term as may be required under Section 422 of the Code). |
c) | Form and Timing of Payment Under Awards ; Deferrals . Subject to the terms of the Plan and any applicable Award Agreement, payments to be made by the Company or a Related Entity upon the exercise of an Option or other Award or settlement of an Award may be made in such forms as the Committee shall determine, including cash, Shares, other Awards or other property, and may be made in a single payment or transfer, in installments, or on a deferred basis. Any installment or deferral provided for in the preceding sentence shall, however, be subject to the Companys compliance with the provisions of the Sarbanes-Oxley Act of 2002, the rules and regulations adopted by the Securities and Exchange Commission thereunder, and all applicable rules of the NASDAQ Global Market or any national securities exchange on which the Companys securities are listed or quoted for trading and, if not listed or quoted for trading on either the NASDAQ Global Market or a national securities exchange, then the rules of the NASDAQ Global Market. The settlement of any Award may be accelerated, and cash paid in lieu of Stock in connection with such settlement, in the discretion of the Committee or upon occurrence of one or more specified events (in addition to a Change in Control). Installment or deferred payments may be required by the Committee (subject to Section 10(e) , including the consent provisions thereof in the case of any deferral of an outstanding Award not provided for in the original Award Agreement) or permitted at the election of the Participant on terms and conditions established by the Committee. Payments may include provisions for the payment or crediting of a reasonable interest rate on installment or deferred payments or the grant or crediting of Dividend Equivalents or other amounts in respect of installment or deferred payments denominated in Shares. |
d) | Exemptions from Section 16(b) Liability . It is the intent of the Company that the grant of any Awards to or other transaction by a Participant who is subject to Section 16 of the Exchange Act shall be exempt from Section 16 pursuant to an applicable exemption (except for transactions acknowledged in writing to be nonexempt by such Participant). Accordingly, if any provision of this Plan or any Award Agreement does not comply with the requirements of Rule 16b-3 then applicable to any such transaction, such provision shall be construed or deemed amended to the extent necessary to conform to the applicable requirements of Rule 16b-3 so that such Participant shall avoid liability under Section 16(b). |
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8. | Code Section 162(m) Provisions . |
a) | Covered Employees . If and to the extent that the Committee determines at the time a Restricted Stock Award, a Performance Award or an Other Stock-Based Award is granted to an Eligible Person who is, or is likely to be, as of the end of the tax year in which the Company would claim a tax deduction in connection with such Award, a Covered Employee, then the Committee may provide that this Section 8 is applicable to such Award. |
b) | Performance Criteria . If a Restricted Stock Award, a Performance Award or an Other Stock-Based Award is subject to this Section 8 , then the lapsing of restrictions thereon and the distribution of cash, Shares or other property pursuant thereto, as applicable, shall be contingent upon achievement of one or more objective performance goals. Performance goals shall be objective and shall otherwise meet the requirements of Section 162(m) of the Code and regulations thereunder, including the requirement that the level or levels of performance targeted by the Committee result in the achievement of performance goals being substantially uncertain. One or more of the following business criteria for the Company, on a consolidated basis, and/or for Related Entities, or for business or geographical units of the Company and/or a Related Entity (except with respect to the total shareholder return and earnings per share criteria for a Related Entity) shall be used by the Committee in establishing performance goals for such Performance Awards: (1) earnings per share; (2) increase in interest income or net interest income; (3) net interest margin; (4) return on assets, investment, capital or equity; (5) increase in cash flows; (6) net income; pretax earnings; earnings before interest and taxes; earnings before interest, taxes, depreciation and amortization; earnings after interest expense and before extraordinary or special items; income before interest income or expense, unusual items and income taxes, local, state or federal and excluding budgeted and actual bonuses that might be paid under any ongoing bonus plans of the Company; (7) management of fixed costs or variable costs; (8) identification or consummation of investment opportunities or completion of specified projects in accordance with corporate business plans, including strategic mergers, acquisitions or divestitures; (9) total shareholder return; (10) debt reduction; and (11) increases in assets under management. |
c) | Performance Period; Timing for Establishing Performance Goals . Achievement of performance goals in respect of such Performance Awards shall be measured over a Performance Period no shorter than 12 months and no longer than five years, as specified by the Committee. Performance goals shall be established not later than 90 days after the beginning of any Performance Period applicable to such Performance Awards, or at such other date as may be required or permitted for performance-based compensation under Code Section 162(m). |
d) | Adjustments . The Committee may, in its discretion, reduce the amount of a settlement otherwise to be made in connection with Awards subject to this Section 8 , but may not exercise discretion to increase any such amount payable to a Covered Employee in respect of an Award subject to this Section 8 . The Committee shall specify the circumstances in which such Awards shall be paid or forfeited in the event of termination of Continuous Service by the Participant prior to the end of a Performance Period or settlement of Awards. |
9. | Change in Control . |
a) | Effect of Change in Control . Subject to Section 9(a)(iv) , and if and only to the extent provided in the Award Agreement, or to the extent otherwise determined by the Committee, upon the occurrence of a Change in Control, as defined in Section 9(b) : |
i. | Any Option that was not previously vested and exercisable as of the time of the Change in Control shall become immediately vested and exercisable, subject to applicable restrictions set forth in Section 10(a) . |
ii. |
Any restrictions, deferral of settlement, and forfeiture conditions applicable to a Restricted Stock Award, Deferred Stock Award or an Other Stock-Based Award subject |
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only to future service requirements granted under the Plan shall lapse and such Awards shall be deemed fully vested as of the time of the Change in Control, except to the extent of any waiver by the Participant and subject to applicable restrictions set forth in Section 10(a) hereof. |
iii. | With respect to any outstanding Performance Award, Restricted Stock Award, Deferred Stock Award or Other Stock-Based Award subject to achievement of performance goals and conditions under the Plan, (A) a pro rata portion of the Award shall be considered earned and payable based on the portion of the Performance Period completed as of the date of the Change in Control and based on performance to such date, or if performance to such date is not determinable, based on target performance and (B) the value at target performance of the remaining portion of the Award shall be converted to a Restricted Stock Award, or a Deferred Stock Award for purposes of Section 9(a)(iv) . If Awards are not assumed or substituted for by the successor company pursuant to Section 9(a)(iv) , then the full Award shall be considered earned and payable. |
iv. | Notwithstanding the foregoing, if in the event of a Change in Control the successor company assumes or substitutes for an Option, Restricted Stock Award, Deferred Stock Award or Other Stock-Based Award, then each outstanding Option, Restricted Stock Award, Deferred Stock Award or Other Stock-Based Award shall not be accelerated as described in Section 9(a)(i) , Section 9(a)(ii) and Section 9(a)(iii) . For the purposes of this Section 9(a)(iv) , an Option, Restricted Stock Award, Deferred Stock Award or Other Stock-Based Award shall be considered assumed or substituted for if following the Change in Control the award confers the right to purchase or receive, for each Share subject to the Option, Restricted Stock Award, Deferred Stock Award or Other Stock-Based Award immediately prior to the Change in Control, the consideration (whether stock, cash or other securities or property) received in the transaction constituting a Change in Control by holders of Shares for each Share held on the effective date of such transaction (and if holders were offered a choice of consideration, the type of consideration chosen by the holders of a majority of the outstanding shares); provided, however, that if such consideration received in the transaction constituting a Change in Control is not solely common stock of the successor company, the Committee may, with the consent of the successor company, provide that the consideration to be received upon the exercise or vesting of an Option, Restricted Stock Award, Deferred Stock Award or Other Stock-Based Award, for each Share subject thereto, will be solely common stock of the successor company substantially equal in fair market value to the per share consideration received by holders of Shares in the transaction constituting a Change in Control. The determination of such substantial equality of value of consideration shall be made by the Committee in its sole discretion and its determination shall be conclusive and binding. |
b) | Definition of Change in Control . Unless otherwise specified in an Award Agreement, a Change in Control shall mean the occurrence of any of the following: |
i. | The acquisition by any Person of Beneficial Ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 50% or more of either (A) the then outstanding shares of common stock of the Company (the Outstanding Company Common Stock) or (B) the combined voting power of the then outstanding voting securities of the Company entitled to vote generally in the election of directors (the Outstanding Company Voting Securities); provided, however, that for purposes of this Section 9(b) , the following acquisitions shall not constitute a Change of Control: (w) any acquisition directly from the Company; (x) any acquisition by the Company; (y) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by the Company or any Subsidiary; or (z) any acquisition by any corporation pursuant to a transaction which complies with clauses (A), (B) and (C) of subsection (iii) below; or |
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ii. | During any period of two (2) consecutive years (not including any period prior to the Effective Date) individuals who constitute the Board on the Effective Date (the Incumbent Board) cease for any reason to constitute at least a majority of the Board; provided, however, that any individual becoming a director subsequent to the Effective Date whose election, or nomination for election by the Companys shareholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board shall be considered as though such individual were a member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board; or |
iii. | Consummation of a reorganization, merger, statutory share exchange or consolidation or similar corporate transaction involving the Company or any of its Subsidiaries, a sale or other disposition of all or substantially all of the assets of the Company, or the acquisition of assets or stock of another entity by the Company or any of its Subsidiaries (each a Business Combination), in each case, unless, following such Business Combination, (A) all or substantially all of the individuals and entities who were the Beneficial Owners, respectively, of the Outstanding Company Common Stock and Outstanding Company Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, more than 50% of, respectively, the then outstanding shares of Common Stock and the combined voting power of the then outstanding voting securities entitled to vote generally in the election of directors, as the case may be, of the corporation resulting from such Business Combination (including a corporation that as a result of such transaction owns the Company or all or substantially all of the Companys assets either directly or through one or more subsidiaries) in substantially the same proportions as their ownership, immediately prior to such Business Combination of the Outstanding Company Common Stock and Outstanding Company Voting Securities, as the case may be, (B) no Person (excluding any employee benefit plan (or related trust) of the Company or such corporation resulting from such Business Combination) beneficially owns, directly or indirectly, 50% or more of, respectively, the then outstanding shares of common stock of the corporation resulting from such Business Combination or the combined voting power of the then outstanding voting securities of such corporation except to the extent that such ownership existed prior to the Business Combination and (C) at least a majority of the members of the Board of Directors of the corporation resulting from such Business Combination were members of the Incumbent Board at the time of the execution of the initial agreement, or of the action of the Board, providing for such Business Combination; or |
iv. | Approval by the shareholders of the Company of a complete liquidation or dissolution of the Company. |
10. | General Provisions . |
a) | Compliance With Legal and Other Requirements . The Company may, to the extent deemed necessary or advisable by the Committee, postpone the issuance or delivery of Shares or payment of other benefits under any Award until completion of such registration or qualification of such Shares or other required action under any federal or state law, rule or regulation, listing or other required action with respect to any stock exchange or automated quotation system upon which the Shares or other Company securities are listed or quoted, or compliance with any other obligation of the Company, as the Committee, may consider appropriate, and may require any Participant to make such representations, furnish such information and comply with or be subject to such other conditions as it may consider appropriate in connection with the issuance or delivery of Shares or payment of other benefits in compliance with applicable laws, rules, and regulations, listing requirements or other obligations. |
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b) | Limits on Transferability ; Beneficiaries . No Award or other right or interest granted under the Plan shall be pledged, hypothecated or otherwise encumbered or subject to any lien, obligation or liability of such Participant to any party, or assigned or transferred by such Participant otherwise than by will or the laws of descent and distribution or to a Beneficiary upon the death of a Participant, and such Awards or rights that may be exercisable shall be exercised during the lifetime of the Participant only by the Participant or his or her guardian or legal representative, except that Awards and other rights (other than Incentive Stock Options) may be transferred to one or more Beneficiaries or other transferees during the lifetime of the Participant, and may be exercised by such transferees in accordance with the terms of such Award, but only if and to the extent such transfers are permitted by the Committee pursuant to the express terms of an Award Agreement (subject to any terms and conditions that the Committee may impose thereon). A Beneficiary, transferee or other person claiming any rights under the Plan from or through any Participant shall be subject to all terms and conditions of the Plan and any Award Agreement applicable to such Participant, except as otherwise determined by the Committee, and to any additional terms and conditions deemed necessary or appropriate by the Committee. |
c) | Adjustments . |
i. | Adjustments to Awards . In the event that any extraordinary dividend or other distribution (whether in the form of cash, Shares or other property), recapitalization, forward or reverse split, reorganization, merger, consolidation, spin-off, combination, repurchase, share exchange, liquidation, dissolution or other similar corporate transaction or event affects the Shares and/or such other securities of the Company or any other issuer such that a substitution, exchange or adjustment is determined by the Committee to be appropriate, then the Committee shall, in such manner as it may deem equitable, substitute, exchange or adjust any or all of (A) the number and kind of Shares which may be delivered in connection with Awards granted thereafter, (B) the number and kind of Shares by which annual per-person Award limitations are measured under Section 5 hereof, (C) the number and kind of Shares subject to or deliverable in respect of outstanding Awards, (D) the exercise price, grant price or purchase price relating to any Award and/or make provision for payment of cash or other property in respect of any outstanding Award, and (E) any other aspect of any Award that the Committee determines to be appropriate. |
ii. | Adjustments in Case of Certain Corporate Transactions . In the event of any proposed sale of all or substantially all of the Companys assets or any reorganization, merger, consolidation or other form of corporate transaction in which the Company does not survive, or in which the Shares are exchanged for or converted into securities issued by another entity, the successor or acquiring entity or an affiliate thereof may, with the consent of the Committee, assume each outstanding Award or substitute an equivalent option, right or other award. If the successor or acquiring entity or an affiliate thereof, does not cause such an assumption or substitution of any Award, then that Award shall terminate upon consummation of the sale, merger, consolidation or other corporate transaction, with or without consideration as determined by the Committee. The Committee shall give written notice of any proposed transaction referred to in this Section 10(c)(ii) a reasonable period of time prior to the closing date for such transaction (which notice may be given either before or after the approval of such transaction), in order that Participants may have a reasonable period of time prior to the closing date of such transaction within which to exercise any Awards that are then exercisable (including any Awards that may become exercisable upon the closing date of such transaction). A Participant may condition his exercise of any Awards upon the consummation of the transaction. |
iii. |
Other Adjustments . In addition, the Committee (and the Board if and only to the extent such authority is not required to be exercised by the Committee to comply with Section 162(m) of the Code) is authorized to make adjustments in the terms and |
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conditions of, and the criteria included in, Awards (including Performance Awards, or performance goals relating thereto) in recognition of unusual or nonrecurring events (including acquisitions and dispositions of businesses and assets) affecting the Company, any Related Entity or any business unit, or the financial statements of the Company or any Related Entity, or in response to changes in applicable laws, regulations, accounting principles, tax rates and regulations or business conditions or in view of the Committees assessment of the business strategy of the Company, any Related Entity or business unit thereof, performance of comparable organizations, economic and business conditions, personal performance of a Participant, and any other circumstances deemed relevant; provided that no such adjustment shall be authorized or made if and to the extent that such authority or the making of such adjustment would cause Options and Performance Awards granted under Section 8(b) hereof to Participants designated by the Committee as Covered Employees and intended to qualify as performance-based compensation under Code Section 162(m) and the regulations thereunder to otherwise fail to qualify as performance-based compensation under Code Section 162(m) and regulations thereunder. |
d) | Taxes . The Company and any Related Entity are authorized to withhold from any Award granted, any payment relating to an Award under the Plan, including from a distribution of Shares, or any payroll or other payment to a Participant, amounts of withholding and other taxes due or potentially payable in connection with any transaction involving an Award, and to take such other action as the Committee may deem necessary or advisable to enable the Company or any Related Entity and Participants to satisfy obligations for the payment of withholding taxes and other tax obligations relating to any Award. This authority shall include authority to withhold or receive Shares or other property and to make cash payments in respect thereof in satisfaction of a Participants tax obligations, either on a mandatory or elective basis in the discretion of the Committee. |
e) | Changes to the Plan and Awards . The Board may amend, alter, suspend, discontinue or terminate the Plan, or the Committees authority to grant Awards under the Plan, without the consent of shareholders or Participants, except that any amendment or alteration to the Plan shall be subject to the approval of the Companys shareholders not later than the Annual Meeting next following such Board action if such shareholder approval is required by any federal or state law or regulation (including Rule 16b-3, Code Section 162(m) or the Treasury regulations under Section 422 of the Code) or the rules of any stock exchange or automated quotation system on which the Shares may then be listed or quoted, and the Board may otherwise, in its discretion, determine to submit other such changes to the Plan to shareholders for approval; provided that, without the consent of an affected Participant, no such Board action may materially and adversely affect the rights of such Participant under any previously granted and outstanding Award. The Committee may waive any conditions or rights under, or amend, alter, suspend, discontinue or terminate any Award theretofore granted and any Award Agreement relating thereto, except as otherwise provided in the Plan; provided that, without the consent of an affected Participant, no such Committee or the Board action may materially and adversely affect the rights of such Participant under such Award. Notwithstanding anything to the contrary, the Committee shall be authorized to amend any outstanding Option to reduce the exercise price or grant price without the prior approval of the shareholders of the Company if such new exercise price is equal to or greater than the then current Fair Market Value of a Share. In addition, the Committee shall be authorized to cancel outstanding Options and replace such Options with Awards having a lower exercise price without the prior approval of the shareholders of the Company if such new exercise price is equal to or greater than the then current fair market value of a Share. |
f) |
Limitation on Rights Conferred Under Plan . Neither the Plan nor any action taken hereunder shall be construed as (i) giving any Eligible Person or Participant the right to continue as an Eligible Person or Participant or in the employ or service of the Company or a Related Entity; (ii) interfering in any way with the right of the Company or a Related Entity to terminate any Eligible Persons or Participants Continuous Service at any time, (iii) giving an Eligible Person or |
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Participant any claim to be granted any Award under the Plan or to be treated uniformly with other Participants and Employees, or (iv) conferring on a Participant any of the rights of a shareholder of the Company unless and until the Participant is duly issued or transferred Shares in accordance with the terms of an Award. |
g) | Unfunded Status of Awards; Creation of Trusts . The Plan is intended to constitute an unfunded plan for incentive and deferred compensation. With respect to any payments not yet made to a Participant or obligation to deliver Shares pursuant to an Award, nothing contained in the Plan or any Award shall give any such Participant any rights that are greater than those of a general creditor of the Company; provided that the Committee may authorize the creation of trusts and deposit therein cash, Shares, other Awards or other property, or make other arrangements to meet the Companys obligations under the Plan. Such trusts or other arrangements shall be consistent with the unfunded status of the Plan unless the Committee otherwise determines with the consent of each affected Participant. The trustee of such trusts may be authorized to dispose of trust assets and reinvest the proceeds in alternative investments, subject to such terms and conditions as the Committee may specify and in accordance with applicable law. |
h) | Nonexclusivity of the Plan . Neither the adoption of the Plan by the Board nor its submission to the shareholders of the Company for approval shall be construed as creating any limitations on the power of the Board or a committee thereof to adopt such other incentive arrangements as it may deem desirable, including incentive arrangements and awards that do not qualify under Section 162(m) of the Code. |
i) | Payments in the Event of Forfeitures; Fractional Shares . Unless otherwise determined by the Committee, in the event of a forfeiture of an Award with respect to which a Participant paid cash or other consideration, the Participant shall be repaid the amount of such cash or other consideration. No fractional Shares shall be issued or delivered pursuant to the Plan or any Award. The Committee shall determine whether cash, other Awards or other property shall be issued or paid in lieu of such fractional shares or whether such fractional shares or any rights thereto shall be forfeited or otherwise eliminated. |
j) | Governing Law . The validity, construction and effect of the Plan, any rules and regulations under the Plan, and any Award Agreement shall be determined in accordance with the laws of the jurisdiction of incorporation of the Company without giving effect to principles of conflict of laws and excluding (to the greatest extent permissible by law) any rule of law that would cause the application of the laws of any jurisdiction other than the laws of the jurisdiction of incorporation of the Company. |
k) | Non-U.S. Laws . The Committee shall have the authority to adopt such modifications, procedures and subplans as may be necessary or desirable to comply with provisions of the laws of foreign countries in which the Company or its Subsidiaries may operate to assure the viability of the benefits from Awards granted to Participants performing services in such countries and to meet the objectives of the Plan. |
l) | Plan Effective Date and Shareholder Approval; Termination of Plan . The Plan was adopted by the Board on the Effective Date and approved by the shareholders of the Company on the day following the Effective Date. The Plan shall terminate at the earliest of (a) termination of this Plan by the Board or (b) the tenth anniversary of the Effective Date. However, Awards outstanding upon expiration of the Plan shall remain in effect until they have been exercised, vested, terminated or have expired, and the Plan shall continue to govern such Awards. |
m) | Construction . The terms includes and including means includes or including without limitation. |
(END OF PLAN)
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THE SECURITIES SUBJECT TO THIS GRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE ACT ), AS AMENDED, OR ANY OTHER SECURITIES STATUTE. NO SALE, TRANSFER OR OTHER DISPOSITION OF SUCH SECURITIES, OR OF ANY INTEREST THEREIN, MAY BE MADE OR SHALL BE RECOGNIZED UNLESS IN THE SATISFACTORY WRITTEN OPINION OF COUNSEL FOR, OR OTHER COUNSEL SATISFACTORY TO, THE ISSUER SUCH TRANSACTION WOULD NOT VIOLATE OR REQUIRE REGISTRATION UNDER SUCH ACT OR OTHER STATUTE.
RS Grant No. |
Date of Grant: | No. Shares: |
INDEPENDENT BANK GROUP, INC.
RESTRICTED STOCK AWARD AGREEMENT
pursuant to the
INDEPENDENT BANK GROUP, INC. 2013 EQUITY INCENTIVE PLAN
This Restricted Stock Award Agreement (this Award Agreement ) is made and entered into as of , between Independent Bank Group, Inc., a Texas corporation (the Company ), and ( Grantee ) to evidence a Restricted Stock Award made to Grantee as of the date hereof under the Independent Bank Group, Inc. 2013 Equity Incentive Plan (the Plan ). Capitalized terms not defined herein shall have the meanings assigned thereto in the Plan.
1. Grant of Restricted Stock . The Company hereby grants an award of shares of its common stock (the Restricted Shares ) to Grantee, subject to the terms, definitions and provisions of the Plan, which is incorporated herein by reference, except to the extent otherwise expressly provided in this Award Agreement.
2. Vesting of Restricted Shares . Subject to the restrictions and conditions set forth in this Award Agreement and the Plan, the Restricted Shares shall Vest (as defined below) and become Vested Shares in accordance with the following schedule:
[INSERT VESTING SCHEDULE]
As used in this Restricted Stock Award Agreement, the word Vest shall refer to the termination of all forfeiture provisions set forth herein with respect to the Restricted Stock Award or a specified portion thereof.
3. Risk of Forfeiture . In the event of termination of the business (including employment) relationship of Grantee prior to Vesting of the Restricted Shares pursuant to Section 2 above or as otherwise provided in the Plan, Grantee shall forfeit all right to any nonvested Restricted Shares.
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4. Option of the Company to Purchase Shares.
(a) In the event of the termination of the business (including employment) relationship of Grantee at any time and for any reason whatsoever, the Company, at any time within twelve (12) months of such termination, shall have the option (but shall not be obligated) to purchase any or all of the Restricted Shares that have Vested owned by Grantee and Grantees successors or permitted assignees (direct or indirect). For purposes of this Section 4 and Section 5 hereof, any reference to Grantee shall (when applicable) be deemed to be and include references to Grantees successors, heirs, personal representatives and permitted assignees (direct or indirect).
(b) The option specified in Section 4(a) hereof, to the extent applicable, may be exercised by the Company at any time within twelve (12) months after the termination of the business relationship of Grantee with the Company by the sending of Registered Notice (as defined in Section 5(c) hereof) of such exercise to Grantee, specifying the time and date on which payment to Grantee of the purchase price, as determined in accordance with Section 4(d) hereof, of such shares of Grantee to be purchased by the Company is to be made and the number of shares to be so purchased by the Company. The date specified shall not be later than sixty (60) days after the date such Registered Notice is sent. Settlement of the purchase of Grantees shares under this Section 4 shall be held at the principal executive office of the Company or at such other place as the Company shall notify Grantee. At settlement, Grantee shall deliver to the Company the certificate or certificates representing such shares, along with stock powers or other instruments of transfer, duly endorsed and, simultaneously therewith, the Company shall deliver to Grantee a check in the amount of the purchase price of the shares being purchased by the Company.
(c) In the event that Grantee is unable to, or for any reason does not, deliver to the Company such certificate or certificates, stock powers or other instruments of transfer, duly endorsed and in accordance with the provisions of this Section 4 or Section 5 hereof, the Company may, in its sole discretion, deposit a check, in the total amount of the purchase price, as determined in accordance with Section 4(d) hereof, whichever is applicable with any bank doing business within sixty (60) miles of the Companys principal executive office or with the accountant or accountants then servicing the Company, as agent or trustee, or in escrow for Grantee, to be held by such bank or accountant or accountants until withdrawn by Grantee. Upon such deposit by the Company, Grantees shares shall at such time be deemed to have been sold, assigned, transferred and conveyed to the Company, and Grantee shall have no further rights with respect thereto.
(d) The per share purchase price of the shares to be purchased and sold pursuant to this Section 4 shall be the Fair Market Value of the shares as determined by the committee referred to in Section 1.4 of the Plan (the Committee ) as of the calendar month end immediately prior to the date of termination of such business relationship.
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5. Right of First Refusal.
(a) In the event that Grantee shall receive a Bona Fide Offer (as defined in Section 5(b) hereof) to purchase all (but not less than all) of the Restricted Shares that have Vested then owned by Grantee, and in the further event that Grantee is willing to accept such Bona Fide Offer, Grantee shall promptly send Registered Notice (as defined in Section 5(c) hereof) to the Company, offering to sell such shares to the Company at the same price and upon the same terms and conditions as are contained in the Bona Fide Offer. The Company shall then have such rights and privileges, for the prescribed time periods, as are set forth in Section 5(d) hereof.
(b) Whenever, in this Award Agreement, the term Bona Fide Offer is used, such term shall mean an offer in writing, signed by an offeror or offerors (who must be a person or persons financially capable of carrying out the terms of such Bona Fide Offer) not affiliated in any manner with, or related to, or acting in concert with, Grantee, in a form legally enforceable against such nonaffiliated and unrelated offeror or offerors.
(c) Whenever, in this Award Agreement, the term Registered Notice is used, such term shall mean notice sent by hand delivery or by registered or certified mail (return receipt requested and first-class postage prepaid); and, if such Registered Notice is sent with respect to a Bona Fide Offer (as provided for in Section 5(a) hereof), such Registered Notice shall contain a true and complete copy of the Bona Fide Offer, setting forth the price and all terms and conditions, with the name(s), address(es) (both home and office) and business(es) or other occupation(s) of the nonaffiliated and unrelated offeror or offerors. Any notice that does not contain all such requisite information shall not be considered a Registered Notice for the purposes of this Award Agreement.
(d) Whenever, under this Award Agreement, a Bona Fide Offer to purchase shares has been received by Grantee, and Registered Notice thereof has been sent to the Company, the following procedure shall be complied with: For a period of thirty (30) days from its receipt of such Registered Notice, the Company shall have the right, at its sole option, to purchase the shares so offered. The aforesaid right of the Company may be exercised by the Company by sending Registered Notice of such exercise to Grantee within such 30-day period. Such notice shall specify the time and date on which settlement in connection with the exercise of such right is to be made. The date specified shall not be later than ninety (90) days from the date of sending of such notice by the Company. Settlement on the purchase of Grantees shares under this Section 5 shall be held at the principal executive office of the Company or at such other place as the Company and Grantee shall otherwise agree. At settlement, Grantee shall deliver to the Company the materials required by the Company and, simultaneously therewith, the Company shall deliver to Grantee the purchase price for such shares in the amount, manner and form provided for in the Bona Fide Offer.
(e) If the Company shall not elect, within such 30-day period, to purchase all of the shares covered by the Bona Fide Offer, Grantee shall have the right to accept the Bona Fide Offer in whole (but not in part) and to sell such shares, subject to the provisions and restrictions of this Award Agreement, but only in strict accordance with
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all of the provisions of the Bona Fide Offer and only if the sale is fully consummated within ninety (90) days after the sending of the Registered Notice pursuant to Section 5(a) hereof. In the event that such sale is not fully consummated within ninety (90) days after the sending of such Registered Notice, the provisions of this Section 5 must again be complied with by Grantee before Grantee may sell all of Grantees shares pursuant to this Section 5 .
(f) Notwithstanding any other provision of this Award Agreement, to the extent that there shall be a conflict between the provisions of this Section 5 and Section 4 hereof, the provisions of Section 4 hereof shall take precedence over the provisions of this Section 5 , and this Section 5 shall be of no force or effect. To the extent that there shall be a conflict between the provisions of this Agreement and the provisions of any applicable Stockholder Agreement, the provisions of this Agreement shall control. Any option of the Company specified in this Section 5 or Section 4 hereof may be assigned by the Company to any person or entity and, in such event, any reference in this Award Agreement to such option of the Company (and the closing upon a purchase of any Shares thereunder) shall, unless the context otherwise requires, be deemed to be a reference to such other person or entity.
(g) Strict compliance by Grantee shall be required with each and every provision of this Award Agreement and particularly with the procedures set forth in the provisions of Section 4 hereof and this Section 5 .
6. Co-Sale Obligations . Upon receipt of a bona fide offer to purchase all of the common stock of the Company, the holders of more than fifty percent (50%) in interest of the Companys common stock outstanding on a fully diluted basis, by a written agreement (the Purchase Agreement ) signed by all such holders (collectively, the Selling Group ), may require that the holders of common stock other than members of the Selling Group (the Non-Selling Group ) also sell all of their common and other capital stock at the price and upon the terms and conditions set forth in the Purchase Agreement. The Selling Group shall give Registered Notice of the Purchase Agreement, which notice shall include a copy of the executed Purchase Agreement. The closing of any such purchase shall be completed without avoidable delay, but in any event not later than sixty (60) days after the Registered Notice to the Non-Selling Group by the Selling Group is received or such other later date as specified in the Purchase Agreement. Each such member of the Non-Selling Group shall be deemed to have consented to the sale under the Purchase Agreement of all of the outstanding common stock and other outstanding capital stock, if any, owned by it to such third party or parties, and all parties agree that the stockholders of the Company shall sell all of such outstanding common stock and applicable other capital stock owned by them pursuant to the terms and conditions of the Purchase Agreement. Notwithstanding any other provision of this Award Agreement, to the extent that there shall be a conflict between the provisions of this Section 6 and Section 5 hereof, the provisions of Section 6 hereof shall take precedence over the provisions of Section 5 , and Section 5 shall be of no force or effect.
7. Transferability of Restricted Shares . Restricted Shares may not be assigned, encumbered or transferred, whether by operation of law or otherwise, except as provided in the Plan. In no event may unvested Restricted Shares be assigned, encumbered or transferred. The
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provisions of this Award Agreement shall be binding upon, inure to the benefit of, and be enforceable by the parties hereto, the successors and assigns of the Company and Grantees successors or permitted assigns.
8. Notice of Transfer . The Grantee or any person or entity to whom the Restricted Shares shall have been transferred in accordance with the Plan and this Award Agreement shall give notice to the Company promptly after such transfer. Such notice shall specify the number of Restricted Shares sold or otherwise disposed of and be directed to the address set forth in Section 9 below.
9. Notices . All notices hereunder to the Company shall be delivered or mailed to it addressed to the Secretary of Independent Bank Group, Inc., 1600 Redbud Boulevard, Suite 400, McKinney, TX 75069-3257. Any notices hereunder to the Grantee shall be delivered personally or mailed to the Grantees address on the signature page hereto. Such addresses for the service of notices may be changed at any time provided written notice of the change is furnished in advance to the Company or to the Grantee, as the case may be.
10. Retention of Stock Certificate(s) by the Company . Until the Restricted Shares have Vested, the stock certificates evidencing the Restricted Shares will be registered in the name of Grantee but held in the custody of the Company, together with duly endorsed stock powers and an irrevocable proxy (each in the form attached hereto) authorizing the Board of Directors of the Company to vote Grantees unvested Restricted Shares, with full power of substitution, by written consent or agreement (as permitted by the Companys Certificate of Incorporation, as amended, its Bylaws and the laws of the State of Texas pertaining to stockholder rights) and at all meetings of the stockholders of the Company. As soon as practicable after the date upon which any Restricted Shares become Vested, the Company shall deliver to Grantee a certificate or certificates representing such Vested shares, registered in the name of Grantee. The irrevocable proxy shall remain in full force and effect with respect to each Restricted Share covered thereby until the earlier of (a) termination of the irrevocable proxy by the Board of Directors of the Company or (b) such time as restrictions on such Restricted Share have lapsed and it has become a Vested share.
11. Issuance . Certificates representing the Restricted Shares granted hereunder shall be registered in the name of the Grantee and shall be marked with the following legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ISSUED PURSUANT TO THE TERMS OF THE INDEPENDENT BANK GROUP, INC. 2013 EQUITY INCENTIVE PLAN AND MAY NOT BE SOLD, PLEDGED, TRANSFERRED, ASSIGNED OR OTHERWISE ENCUMBERED IN ANY MANNER EXCEPT AS IS SET FORTH IN THE TERMS OF SUCH AWARD DATED , 20 . THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE ACT), OR ANY OTHER SECURITIES LAW. NO SALE, TRANSFER OR OTHER DISPOSITION OF SUCH SHARES, OR OF ANY INTEREST THEREIN, MAY BE MADE OR SHALL BE RECOGNIZED UNLESS IN THE SATISFACTORY WRITTEN OPINION OF COUNSEL FOR, OR OTHER COUNSEL SATISFACTORY TO, THE ISSUER SUCH TRANSACTION WOULD NOT VIOLATE OR REQUIRE REGISTRATION UNDER THE ACT OR OTHER LAW.
IBG Restricted Stock Award |
5 |
Such certificates shall be left on deposit with the Company, along with a stock power endorsed in blank until such time as the Restricted Shares have Vested.
12. Plan and Plan Interpretations as Controlling . This award of Restricted Stock and the term sand conditions herein set forth are subject in all respects to the terms and conditions of the Plan, which are controlling, including in the event of conflict. All determinations and interpretations of the Committee shall be binding and conclusive upon Grantee and its successors or permitted assigns with regard to any question arising under this Award Agreement or under the Plan.
13. Withholding Taxes . Participant agrees that, if he or she makes an election under Section 83(b) of the Internal Revenue Code of 1986, as amended, with regard to the Restricted Shares, he will so notify the Company in writing within three (3) days after making such election, so as to enable the Company to timely comply with any applicable governmental reporting, withholding or other requirements. The Company has the right to require Grantee or such other person to pay the Company the amount of any taxes that the Company is required to withhold with respect to the Restricted Shares. No discretion or choice shall be conferred upon Grantee, or other person entitled to receive Restricted Shares, with respect to the form, timing or method of any such tax withholding.
14. No Right to Employment . Neither the Company nor any Affiliate is obligated by or as a result of the Plan or this Award Agreement to continue Grantee in the employment of, or service to, the Company, or commence an employment or service relationship with Grantee, and neither the Plan nor this Award Agreement shall interfere in any way with the right of the Company or any Affiliate to terminate the employment of, or consulting or advisory relationship with, Grantee at any time.
15. Severability . In the event that one or more of the provisions of this Award Agreement shall be invalidated for any reason by a court of competent jurisdiction, any provision so invalidated shall be deemed to be separable from the other provisions hereof, and the remaining provisions hereof shall continue to be valid and fully enforceable.
16. Governing Law . This Award Agreement shall be governed by and construed in accordance with the domestic laws of the State of Texas without giving effect to any choice or conflict of law provision or rule (whether of the State of Texas or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Texas; provided, however, that the laws of the State of Texas pertaining to stockholder rights shall govern the rights of Grantee as a stockholder of the Company to the extent provided in such laws.
17. Grantees Acceptance of Award Agreement . The issuance of the Restricted Shares to Grantee is conditioned upon the acceptance by Grantee of the terms of this Award Agreement and of the Plan ( Exhibit A hereto), as evidenced by Grantees execution and delivery of this Award Agreement, the attached stock power ( Exhibit B hereto), Joint Escrow Instructions
IBG Restricted Stock Award Agreement |
6 |
( Exhibit C hereto) and the attached irrevocable proxy ( Exhibit D hereto), to the attention of the Companys Chairman no later than thirty (30) days after the date of this Award Agreement. In addition, the issuance of the Restricted Shares to Grantee is conditioned upon the Grantee entering into the attached Employee Agreement ( Exhibit E hereto) with the Company.
18. Counterparts . This Award Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same document.
19. Ownership Rights . Grantee is not entitled to the voting and ownership rights applicable to unvested Restricted Shares, other than the right to receive any cash dividends that may be paid on such Restricted Shares.
20. No Guarantee of Tax Consequences . The Company makes no commitment or guarantee to Grantee that any federal or state tax treatment will apply or be available to any person eligible for benefits under this Award Agreement.
(Signature page follows)
IBG Restricted Stock Award Agreement |
7 |
IN WITNESS WHEREOF, the undersigned has executed this Award Agreement as of the date first above written.
INDEPENDENT BANK GROUP, INC. | ||
By: |
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Name: |
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Title: |
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IBG Restricted Stock Award Agreement |
8 |
ACKNOWLEDGMENT AND AGREEMENT
I hereby acknowledges (i) receipt of this Restricted Stock Award, (ii) the opportunity to review the Plan, and (iii) that I have had an opportunity to discuss this Restricted Stock Award with a representative of the Company and my personal advisors, to the extent I deem necessary or appropriate, and (iv) I understand the terms and provisions of this Award Agreement and the Plan, and further understand and expressly hereby agree that by signing below I am agreeing to be bound by all such terms and provisions of this Award Agreement and the Plan. I hereby agree to accept as binding, conclusive and final all decisions or interpretations of the Committee or the Board of Directors, as applicable, upon any questions arising under this Award Agreement or the Plan. I hereby further represent, acknowledge and agree that I have no other Awards with respect to shares of stock or equity in the Company, validly granted, verbally promised or otherwise, prior to the effective date of this Award Agreement, except as otherwise described on Exhibit F to this Award Agreement. I further acknowledge, agree and understand that the Company is relying on the statements contained herein with respect to the granting of the Award as provided herein.
I hereby represent, warrant, and covenant to the Company that:
(a) I am acquiring the Restricted Shares for my own account, for investment, and not for distribution or resale, and I will make no transfer of such Restricted Shares except in compliance with applicable federal and state securities laws and in accordance with the provisions of the Plan and the Award Agreement.
(b) I can bear the economic risk of the investment in the Restricted Shares, including a total loss of my investment.
(c) I am experienced in business and financial matters and am capable of (i) evaluating the merits and risks of an investment in the Restricted Shares; and (ii) protecting my interests in connection therewith.
(d) Any subsequent offer for sale or distribution of any of the Restricted Shares shall be made only pursuant to (i) a registration statement on an appropriate form under the Act, which registration statement has become effective and is current with regard to the shares being offered or sold, or (ii) a specific exemption from the registration requirements of the Act, it being understood that to the extent any such exemption is claimed, I shall, prior to any offer for sale or sale of such shares, obtain a prior favorable written opinion, in form and substance satisfactory to the Committee, from counsel for or approved by the Committee, as to the applicability of such exemption thereto.
Dated as of the day of , 20 .
GRANTEE | ||
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Printed Name: |
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Address: |
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IBG Restricted Stock Award Agreement |
9 |
EXHIBIT A
INDEPENDENT BANK GROUP, INC. 2013 EQUITY INCENTIVE PLAN
IBG Restricted Stock Award Agreement |
10 |
EXHIBIT B
STOCK POWER
IBG Restricted Stock Award Agreement / Stock Power
STOCK POWER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto Independent Bank Group, Inc., a Texas corporation (the Company ), an aggregate of ( ) shares of the common stock, par value $0.01 per share, of the Company standing in his name on the books of the Company and represented by stock certificate no. , and does hereby irrevocably constitute and appoint , as his attorney-in-fact to transfer such shares on the books of the Company, with full power of substitution in the premises.
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Printed Name: |
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Date: |
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Tax Identification Number |
IBG Restricted Stock Award Agreement / Stock Power
EXHIBIT C
JOINT ESCROW INSTRUCTIONS
IBG Restricted Stock Award Agreement / Joint Escrow Instructions
JOINT ESCROW INSTRUCTIONS
, 20
Treasurer
Independent Bank Group, Inc.
1600 Redbud Boulevard, Suite 400
McKinney, TX 75069-3257
Dear Treasurer:
As Escrow Agent for both Independent Bank Group, Inc., a Texas corporation (together with its successor and assigns, the Company ), and ( Grantee ), you are hereby authorized and directed to hold the documents delivered to you pursuant to the terms of that certain Restricted Stock Award Agreement (the Award Agreement ), dated as of the date hereof, to which the copy of these Joint Escrow Instructions is attached as Exhibit C , in accordance with the following instructions:
1. At the closing, you are directed to (a) date the stock assignments necessary for the transfer in question, (b) fill in the number of shares being transferred, and (c) deliver same, together with the certificate(s) evidencing the Restricted Shares to be transferred, to the Company against the simultaneous delivery to you of the purchase price (in the form permitted by the Award Agreement) for the number of Restricted Shares being purchased.
2. In the event the Company gives to you five (5) business days notice that Grantee will forfeit Restricted Shares pursuant to the Award Agreement, upon the expiration of such five (5) business days you are directed (i) to date the stock assignments necessary for the transfer in question, (ii) to fill in the number of shares being transferred, and (iii) to deliver the same, together with the certificate evidencing the Restricted Shares to be transferred, to the Company for cancellation.
3. Grantee irrevocably authorizes the Company to deposit with you any certificates evidencing the Restricted Shares to be held by you hereunder and any and all additions and substitutions (including dividends) to said shares as referred to in the Award Agreement. Grantee does hereby irrevocably constitute and appoint you as his attorney-in-fact and agent for the term of this escrow to execute with respect to such securities all documents necessary or appropriate to make such securities negotiable and complete any transaction herein contemplated. Subject to the provisions of this paragraph 3, Grantee shall exercise all rights and privileges of a stockholder of the Company while the Restricted Shares are held by you.
4. This escrow shall terminate with respect to Restricted Shares upon the vesting thereof in accordance with the provisions of Section 2 of the Award Agreement.
5. If at the time of termination of this escrow you should have in your possession any documents, securities, or other property belonging to Grantee, you shall deliver all of same to Grantee and shall be discharged of all further obligations hereunder.
6. Your duties hereunder may be altered, amended, modified or revoked only by a writing signed by all of the parties hereto.
7. You shall be obligated only for the performance of such duties as are specifically set forth herein and may rely and shall be protected in relying or refraining from acting on any instrument reasonably believed by you to be genuine and to have been signed or presented by the proper party or parties. You shall not be personally liable for any act you may do or omit to do hereunder as Escrow Agent or as attorney-in-fact for Grantee while acting in good faith and in the exercise of your own good judgment, and any act done or omitted by you pursuant to the advice of your own attorneys shall be conclusive evidence of such good faith.
IBG Restricted Stock Award Agreement / Joint Escrow Instructions
8. You are hereby expressly authorized to disregard any and all warnings given by any of the parties hereto or by any other person or corporation, excepting only orders or process of courts of law, and are hereby expressly authorized to comply with and obey orders, judgments or decrees of any court. In case you obey or comply with any such order, judgment or decree of any court, you shall not be liable to any of the parties hereto or to any other person, firm or corporation by reason of such compliance, notwithstanding any such order, judgment or decree being subsequently reversed, modified, annulled, set aside, vacated or found to have been entered without jurisdiction.
9. You shall not be liable in any respect on account of the identity, authorities or rights of the parties executing or delivering or purporting to execute or deliver the Agreement or any documents on papers deposited or called for hereunder.
10. This instrument shall be binding upon and inure to the benefits of the parties hereto and their respective heirs, personal representatives, estates, successors and permitted assigns.
11. Your responsibilities as Escrow Agent hereunder shall terminate if you shall resign by written notice to each party. In the event of any such termination, the Company shall appoint your successor as successor Escrow Agent, which successor Escrow Agent shall become a party to this Agreement in your place.
12. If you reasonably require other or further instruments in connection with these Joint Escrow Instructions or obligations in respect hereto, the necessary parties hereto shall join in furnishing such instruments.
13. It is understood and agreed that should any dispute arise with respect to the delivery and/or ownership or right of possession of the securities held by you hereunder, you are authorized and directed to retain in your possession without liability to anyone all or any part of said securities until such dispute shall have been settled either by mutual written agreement of the parties concerned or by a final order, decree or judgment of a court of competent jurisdiction after the time for appeal has expired and no appeal has been perfected, but you shall be under no duty whatsoever to institute or defend any such proceedings, or you may, at your option, deposit all securities and other documents held by you pursuant hereto in any court of competent jurisdiction and institute an interpleader proceeding, whereupon you shall be relieved of all liabilities and obligations hereunder.
14. Any notice required or permitted hereunder shall be given in writing and shall be deemed effectively given upon personal delivery or upon deposit in the United States Post Office, by registered or certified mail with postage and fees prepaid, addressed to each of the other parties thereunto entitled at the following addresses, or at such other addresses as a party may designate by ten days advance written notice to each of the other parties hereto. Any notice so addressed and otherwise delivered shall be deemed to be given when actually received by the addressee.
15. By signing these Joint Escrow Instructions, you become a party hereto only for the purpose of said Joint Escrow Instructions; you do not become party to the Agreement.
IBG Restricted Stock Award Agreement / Joint Escrow Instructions
16. You shall be entitled to employ such legal counsel and other experts as you may deem necessary properly to advise you in connection with your obligations hereunder. You may rely upon the advice of such counsel, and you may pay such counsel reasonable compensation therefor.
17. In consideration of his acceptance of the appointment as Escrow Agent, the Company agrees to (1) indemnify and hold the Escrow Agent harmless as to any liability incurred by him to any person, firm or corporation by reason of his having accepted the same or in carrying out any of the terms hereof; and (2) reimburse the Escrow Agent for all his expenses, including, among other things, counsel fees and court costs, incurred by reason of his position hereunder or actions taken pursuant to hereto. This Paragraph shall survive termination of this Agreement.
Very truly yours, | ||
INDEPENDENT BANK GROUP, INC. | ||
By: |
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Title: |
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ACCEPTED BY: | ||
ESCROW AGENT | ||
By: |
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, Treasurer |
IBG Restricted Stock Award Agreement/Joint Escrow Instructions |
EXHIBIT D
IRREVOCABLE PROXY
For
RESTRICTED STOCK OF INDEPENDENT BANK GROUP, INC.
IBG Restricted Stock Award Agreement/Irrevocable Proxy for Restricted Stock |
IRREVOCABLE PROXY
For
RESTRICTED STOCK OF INDEPENDENT BANK GROUP, INC.
Dated as of , 20
The undersigned hereby appoints the Board of Directors of Independent Bank Group, Inc., a Texas corporation (the Company ), and each member thereof, acting together or individually, proxies and hereby authorizes the proxies, or any of them, to exercise all voting rights to which the undersigned may be entitled by virtue of his ownership of Restricted Stock (the Proxied Interest ) in the Company, by written consent or agreement (as permitted by the Companys Amended and Restated Certificate of Formation, as amended, its Bylaws and the laws of the State of Texas pertaining to stockholder rights) and at all meetings of the stockholders of the Company, with full power of substitution, in the same manner and to the same extent that the undersigned might were he to execute a consent or personally attend such meetings, to the extent of the Proxied Interest. This is an irrevocable proxy coupled with an interest. This irrevocable proxy shall remain in full force and effect with respect to each share of Restricted Stock in the Company owned by the undersigned until the earlier of (a) termination of this irrevocable proxy by the Board of Directors of the Company or (b) such time as restrictions on such share of Restricted Stock have lapsed and such share has become Vested. Capitalized terms not defined herein shall have the meanings assigned thereto in the Restricted Stock Award Agreement of even date herewith between the undersigned and the Company.
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Printed Name: |
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IBG Restricted Stock Award Agreement/Irrevocable Proxy for Restricted Stock |
EXHIBIT E
EMPLOYEE AGREEMENT
IBG Restricted Stock Award Agreement/Employee Agreement |
EXHIBIT F
DESCRIPTION OF EXISTING AWARDS MADE TO GRANTEE
None
IBG Restricted Stock Award Agreement/Description of Existing Awards Made to Grantee |
Exhibit 10.21
Execution Copy
AGREEMENT AND PLAN OF REORGANIZATION
BY AND BETWEEN
INDEPENDENT BANK GROUP, INC.
MCKINNEY, TEXAS
AND
I BANK HOLDING COMPANY, INC.
AUSTIN, TEXAS
Dated as of December 22, 2011
TABLE OF CONTENTS
ARTICLE I ACQUISITION OF I BHC BY IBG | 2 | |||||
Section 1.01 |
Merger of Newco with and into I BHC |
2 | ||||
Section 1.02 |
Effects of the Merger |
2 | ||||
Section 1.03 |
Certificate of Formation and Bylaws |
2 | ||||
Section 1.04 |
Directors and Officers |
2 | ||||
Section 1.05 |
Merger Consideration |
2 | ||||
Section 1.07 |
Dissenting Shareholders |
4 | ||||
Section 1.08 |
Exchange of Certificates |
4 | ||||
Section 1.09 |
Effective Time |
5 | ||||
Section 1.10 |
Subsequent Merger |
5 | ||||
ARTICLE II THE CLOSING AND THE CLOSING DATE | 5 | |||||
Section 2.01 |
Time and Place of the Closing and Closing Date |
5 | ||||
Section 2.02 |
Actions to be Taken at the Closing by I BHC |
6 | ||||
Section 2.03 |
Actions to be Taken at the Closing by IBG |
7 | ||||
Section 2.04 |
Further Assurances |
9 | ||||
ARTICLE III REPRESENTATIONS AND WARRANTIES OF I BHC | 9 | |||||
Section 3.01 |
Organization and Ownership |
9 | ||||
Section 3.02 |
Execution and Delivery |
10 | ||||
Section 3.03 |
I BHC Capitalization |
10 | ||||
Section 3.04 |
I Bank |
|||||
Section 3.05 |
No Violation |
11 | ||||
Section 3.06 |
Compliance with Laws, Permits and Instruments |
11 | ||||
Section 3.07 |
Financial Statements |
12 | ||||
Section 3.08 |
Litigation |
12 | ||||
Section 3.09 |
Consents and Approvals |
12 | ||||
Section 3.10 |
Undisclosed Liabilities |
13 | ||||
Section 3.11 |
Title to Tangible Assets |
13 | ||||
Section 3.12 |
Absence of Certain Changes or Events |
13 | ||||
Section 3.13 |
Leases, Contracts and Agreements |
15 | ||||
Section 3.14 |
Taxes and Tax Returns |
16 | ||||
Section 3.15 |
Insurance |
17 | ||||
Section 3.16 |
No Adverse Change |
17 | ||||
Section 3.17 |
Proprietary Rights |
17 | ||||
Section 3.18 |
Transactions with Certain Persons and Entities |
17 | ||||
Section 3.19 |
Evidences of Indebtedness |
18 | ||||
Section 3.20 |
Employee Relationships |
18 | ||||
Section 3.21 |
Condition of Assets |
18 | ||||
Section 3.22 |
Environmental Compliance |
18 | ||||
Section 3.23 |
Regulatory Compliance |
19 | ||||
Section 3.24 |
Absence of Certain Business Practices |
19 | ||||
Section 3.25 |
Books and Records |
20 |
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Section 3.26 |
Forms of Instruments, Etc. |
20 | ||||
Section 3.27 |
Fiduciary Responsibilities |
20 | ||||
Section 3.28 |
Guaranties |
20 | ||||
Section 3.29 |
Employee Benefit Plans |
20 | ||||
Section 3.30 |
No Excess Parachute Payments |
22 | ||||
Section 3.31 |
Bank Secrecy Act, Foreign Corrupt Practices Act and U.S.A. Patriot Act |
22 | ||||
Section 3.32 |
Data Processing Agreements |
22 | ||||
Section 3.33 |
Proxy/Information Statement |
22 | ||||
Section 3.34 |
Dissenting Shareholders |
23 | ||||
Section 3.35 |
Fair Housing Act, Home Mortgage Disclosure Act and Equal Credit Opportunity Act |
23 | ||||
Section 3.36 |
Usury Laws and Other Consumer Compliance Laws |
23 | ||||
Section 3.37 |
Zoning and Related Laws |
23 | ||||
Section 3.38 |
Business Combination |
23 | ||||
Section 3.39 |
Representations Not Misleading |
23 | ||||
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF IBG | 23 | |||||
Section 4.01 |
Organization and Ownership |
24 | ||||
Section 4.02 |
Execution and Delivery |
24 | ||||
Section 4.03 |
Authorized and Outstanding Stock of Newco |
24 | ||||
Section 4.04 |
Compliance with Laws, Permits and Instruments |
24 | ||||
Section 4.05 |
Consents and Approvals |
24 | ||||
Section 4.06 |
Regulatory Approval |
24 | ||||
Section 4.07 |
Representations Not Misleading |
25 | ||||
ARTICLE V COVENANTS OF I BHC | 25 | |||||
Section 5.01 |
Commercially Reasonable Efforts |
25 | ||||
Section 5.02 |
Information Furnished by I BHC |
25 | ||||
Section 5.03 |
Affirmative Covenants |
25 | ||||
Section 5.04 |
Negative Covenants |
26 | ||||
Section 5.05 |
Access; Pre-Closing Investigation |
29 | ||||
Section 5.06 |
Invitations to and Attendance at Directors and Committee Meetings |
29 | ||||
Section 5.07 |
Additional Financial Statements |
29 | ||||
Section 5.08 |
Untrue Representations |
29 | ||||
Section 5.09 |
Litigation and Claims |
30 | ||||
Section 5.10 |
Adverse Changes |
30 | ||||
Section 5.11 |
No Negotiation with Others |
30 | ||||
Section 5.12 |
Consents and Approvals |
30 | ||||
Section 5.13 |
Environmental Investigation; Right to Terminate Agreement |
30 | ||||
Section 5.14 |
Termination of Plans, Obligations and Agreements |
32 | ||||
Section 5.15 |
Disclosure Schedules |
32 | ||||
Section 5.16 |
Voting Agreement |
32 | ||||
Section 5.17 |
Releases |
32 | ||||
Section 5.18 |
Other Agreements |
32 | ||||
Section 5.19 |
Support Agreement |
32 | ||||
Section 5.20 |
Shareholder Lists |
32 | ||||
Section 5.21 |
Shareholders Meeting |
32 |
ii
Section 5.22 |
Conforming Accounting Adjustments |
33 | ||||
Section 5.23 |
Cancellation of Options |
33 | ||||
Section 5.24 |
D & O Liability Insurance |
33 | ||||
Section 5.25 |
Employment Agreement |
33 | ||||
ARTICLE VI COVENANTS OF IBG | 33 | |||||
Section 6.01 |
Commercially Reasonable Efforts |
33 | ||||
Section 6.02 |
Untrue Representations |
33 | ||||
Section 6.03 |
Litigation and Claims |
34 | ||||
Section 6.04 |
Regulatory and Other Approvals |
34 | ||||
Section 6.05 |
Formation and Organization of Newco and Other Agreements |
34 | ||||
Section 6.06 |
Employee Matters |
34 | ||||
Section 6.07 |
Adverse Changes |
34 | ||||
Section 6.08 |
Director and Officer Indemnification. |
35 | ||||
ARTICLE VII CONDITIONS PRECEDENT TO THE OBLIGATIONS OF I BHC | 35 | |||||
Section 7.01 |
Representations and Warranties |
35 | ||||
Section 7.02 |
Performance of Obligations |
35 | ||||
Section 7.03 |
Government and Other Approvals |
35 | ||||
Section 7.04 |
No Litigation |
35 | ||||
Section 7.05 |
Delivery of Closing Documents and Aggregate Consideration |
36 | ||||
Section 7.06 |
Shareholder Approvals |
36 | ||||
ARTICLE VIII CONDITIONS PRECEDENT TO THE OBLIGATIONS OF IBG | 36 | |||||
Section 8.01 |
Representations and Warranties |
36 | ||||
Section 8.02 |
Performance of Obligations |
36 | ||||
Section 8.03 |
Delivery of Closing Documents |
36 | ||||
Section 8.04 |
Government and Other Approvals |
36 | ||||
Section 8.05 |
No Litigation |
37 | ||||
Section 8.06 |
No Material Adverse Change |
37 | ||||
Section 8.07 |
Minimum Capital and ALLL. |
37 | ||||
Section 8.08 |
Shareholder Approvals |
37 | ||||
Section 8.09 |
Termination of Plans, Obligations and Agreements |
37 | ||||
Section 8.10 |
Continued Effect |
38 | ||||
Section 8.11 |
Releases, Support Agreements, and Resignations |
38 | ||||
ARTICLE IX TERMINATION AND ABANDONMENT | 38 | |||||
Section 9.01 |
Right of Termination |
38 | ||||
Section 9.02 |
Notice of Termination |
39 | ||||
Section 9.03 |
Effect of Termination |
39 | ||||
Section 9.04 |
I BHC Termination Fee |
39 | ||||
ARTICLE X CONFIDENTIAL INFORMATION | 40 | |||||
Section 10.01 |
Definition of Recipient, Disclosing Party and Representative |
40 | ||||
Section 10.02 |
Definition of Subject Information |
41 | ||||
Section 10.03 |
Confidentiality |
41 | ||||
Section 10.04 |
Securities Law Concerns |
41 |
iii
Section 10.05 |
Return of Subject Information |
42 | ||||
ARTICLE XI MISCELLANEOUS | 42 | |||||
Section 11.01 |
No Survival of Representations and Warranties |
42 | ||||
Section 11.02 |
Expenses |
42 | ||||
Section 11.03 |
Brokerage Fees and Commissions |
42 | ||||
Section 11.04 |
Entire Agreement |
42 | ||||
Section 11.05 |
Further Cooperation |
43 | ||||
Section 11.06 |
Severability |
43 | ||||
Section 11.07 |
Notices |
43 | ||||
Section 11.08 |
GOVERNING LAW; VENUE |
44 | ||||
Section 11.09 |
Multiple Counterparts; Electronic Transmission |
44 | ||||
Section 11.10 |
Certain Definitions |
45 | ||||
Section 11.11 |
Specific Performance |
46 | ||||
Section 11.12 |
Attorneys Fees and Costs |
46 | ||||
Section 11.13 |
Rules of Construction |
46 | ||||
Section 11.14 |
Binding Effect; Assignment |
46 | ||||
Section 11.15 |
Public Disclosure |
47 | ||||
Section 11.16 |
Extension; Waiver |
47 | ||||
Section 11.17 |
Amendments |
47 |
EXHIBITS
EXHIBIT A: | Agreement and Plan of Merger |
EXHIBIT B: | Option Holder Agreement |
EXHIBIT C: | Voting Agreement |
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AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION ( Agreement ) is made and entered into as of the 22 nd day of December, 2011, by and between INDEPENDENT BANK GROUP, INC., a Texas corporation and registered bank holding company with its principal offices in McKinney, Texas ( IBG ), and I BANK HOLDING COMPANY, INC., a Texas corporation and registered bank holding company with its principal offices in Austin, Texas ( I BHC ).
WITNESSETH:
WHEREAS, I BHC owns all of the capital stock of I Bank Texas, SSB, a Texas state savings bank with its principal offices in Austin, Texas ( I Bank );
WHEREAS, IBG desires to acquire all of the shares of the I BHC common stock, $8.00 par value per share (the I BHC Stock ) issued and outstanding immediately prior to the Closing Date (as defined in Section 2.01), and all of the options to acquire I BHC Stock (collectively, the I BHC Options ) outstanding and unexercised immediately prior to the Closing Date, through the merger (the Merger ) of IBG ACQUISITION CORPORATION, a Texas corporation and wholly owned subsidiary of IBG ( Newco ) with and into I BHC, pursuant to which holders of I BHC Stock and the holders of the I BHC Options will be entitled to receive cash. For purposes of this Agreement, unless otherwise indicated, all references to shares of I BHC Stock and I BHC Options shall mean the shares of I BHC Stock that are issued and outstanding, and the I BHC Options that are outstanding and unexercised, respectively, immediately prior to the Effective Time;
WHEREAS, IBG and I BHC believe that the Merger, as provided for and subject to the terms and conditions set forth in this Agreement and all exhibits, schedules and supplements hereto, is in the best interests of IBG and I BHC and their respective shareholders;
WHEREAS, subsequent to the Merger, IBG will effect the merger of I BHC into IBG, with IBG continuing as the surviving corporation (the Subsequent Merger ), and the merger of I Bank with and into Independent Bank, McKinney, Texas, a Texas banking association and a wholly-owned subsidiary of IBG ( Independent Bank ), with Independent Bank continuing as the surviving bank (the Bank Merger );
WHEREAS, to induce IBG to enter into this Agreement, certain shareholders of I BHC have agreed to execute and deliver to IBG a Voting Agreement pursuant to which these shareholders agree to vote their shares of I BHC Stock in favor of the Merger;
WHEREAS, IBG and I BHC desire to set forth certain representations, warranties and covenants made by each to the other as an inducement to the execution and delivery of this Agreement and certain additional agreements related to the transactions contemplated hereby; and
WHEREAS, the respective boards of directors of IBG and I BHC have approved this Agreement and the proposed transactions substantially on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, for and in consideration of the foregoing and of the mutual representations, warranties, covenants and agreements contained in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be bound hereby, the parties hereby agree as follows:
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ARTICLE I
ACQUISITION OF I BHC BY IBG
Section 1.01 Merger of Newco with and into I BHC . Subject to the terms and conditions of this Agreement and the Agreement and Plan of Merger to be entered into between I BHC and Newco (the Merger Agreement ) in the form attached hereto as Exhibit A , Newco will merge with and into I BHC pursuant to the provisions of Chapter 10 of the Texas Business Organizations Code (the TBOC ).
Section 1.02 Effects of the Merger . I BHC shall continue as the corporation resulting from the Merger (the Resulting Corporation ), and the Merger shall otherwise have the effects set forth in Section 10.008 of the TBOC and as set forth in the Merger Agreement.
Section 1.03 Certificate of Formation and Bylaws . The Certificate of Formation and Bylaws of the Resulting Corporation shall be as set forth in the Merger Agreement.
Section 1.04 Directors and Officers . The directors and officers of the Resulting Corporation shall be as set forth in the Merger Agreement.
Section 1.05 Merger Consideration . At the Effective Time (as defined in Section 1.09) by virtue of this Agreement and without any further action on the part of any holder:
A. Any shares of I BHC Stock that are owned by I BHC (other than as a fiduciary) shall automatically be canceled and retired and all rights with respect thereto shall cease to exist, and no consideration shall be delivered in exchange therefor.
B. All shares of I BHC Stock and all I BHC Options shall be converted into the right to receive from IBG total aggregate consideration of $36,700,000 (the Aggregate Consideration ). The Aggregate Consideration shall be allocated as follows:
(1) A total of $2,336,189 of the Aggregate Consideration shall be allocated to the holders of the I BHC Options (the Aggregate Option Consideration ). At the Effective Time, the I BHC Options shall be converted into the right to receive cash from IBG as set forth in Schedule 1.05(B)(1) (the Option Holder Consideration ).
(2) A total of $34,363,811 of the Aggregate Consideration shall be allocated to the holders of I BHC Stock (the Aggregate Shareholder Consideration ). At the Effective Time, each share of I BHC Stock shall be converted into the right to receive from IBG $33.2018 in cash (the Per Share Shareholder Consideration ).
(3) Subject only to dissenters rights under Subchapter H of Chapter 10 of the TBOC, all shares of I BHC Stock and all of the I BHC Options shall no longer be outstanding and shall be cancelled and retired and all rights with respect thereto shall cease to exist, and each holder of I BHC Stock or I BHC Options shall cease to have any rights with respect thereto, except the right to receive the consideration provided for in this Section 1.05.
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C. If the Effective Time occurs after April 30, 2012 (other than as a result of (i) failure to obtain regulatory approval on a timely basis due to issues related to a negative condition or negative operations of I BHC or I Bank, or (ii) the failure of I BHC or I Bank to provide on a timely basis to IBG the information needed to prepare and process its regulatory applications), then the Aggregate Consideration shall be increased by an amount equal to the product of (i) the amount of net income per day of I Bank (calculated in accordance with Call Report Instructions) during the month of April 2012, multiplied by (ii) the number of days between May 1, 2012 and the date on which the Effective Time occurs (the Additional Aggregate Consideration). 6.39 percent of the Additional Aggregate Consideration shall be allocated to the holders of the I BHC Options, to be further allocated among the holders of I BHC Options pro rata based upon the number of I BHC Options owned as set forth in Schedule 1.05(B)(I) . 93.61 percent of the Additional Aggregate Consideration shall be allocated to the holders of I BHC Stock to be further allocated among the holders of I BHC Stock pro rata based upon the number of shares of I BHC Stock owned on the Closing Date. The Additional Aggregate Consideration, if any, as allocated among the holders of the I BHC Options and shares of I BHC Stock, shall be added to, and delivered as part of, the Option Holder Consideration and the Per Share Shareholder Consideration.
D. As of the date of this Agreement, I BHC has cash on hand in the amount of $284,831.61 (the Cash Amount). Between the date of this Agreement and the Closing Date, I BHC shall disburse the Cash Amount to pay for the following expenses related to the Merger:
(1) any and all completion bonuses, severance payments, and other payments to employees of I Bank, including without limitation a $37,500 payment to Denny Buchanan (provided that IBG shall be responsible for any retention bonus or payment to any employees after Closing);
(2) legal fees and expenses incurred by I BHC and/or I Bank in connection with the transactions contemplated by this Agreement; and
(3) accounting fees and expenses incurred by I BHC and/or I Bank in connection with the transactions contemplated by this Agreement.
All such, fees and expenses (the Transaction Costs) shall be paid by I BHC in full on the day before the Closing Date. On the Closing Date prior to the Effective Time, I BHC shall pay a dividend to its shareholders in an aggregate amount equal to the difference between (i) the Cash Amount, less (ii) the aggregate amount of the Transaction Costs.
E. In addition to the Aggregate Consideration, at Closing IBG shall pay to I BHC the sum of $300,000.00 which shall be used at Closing by I BHC to discharge its obligations to Sheshunoff & Co. Investment Banking, L.P. (Sheshunoff) as described in Section 11.03 (the Sheshunoff Obligation)
Section 1.06 Treatment of Newco Stock . Each share of Newco Stock (as defined in Section 4.03) issued and outstanding immediately prior to the Effective Time shall, on and after the Effective Time, be converted into a like number of shares of the Resulting Corporation with the effect that the aggregate number of shares of common stock of the Resulting Corporation outstanding after the
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Effective Time shall be equal to the aggregate number of shares of Newco Stock outstanding immediately before the Effective Time, all of which shall continue to be owned by IBG. The authorized number of shares of common stock of the Resulting Corporation shall be the same as the authorized number of shares of Newco Stock immediately prior to the Effective Time.
Section 1.07 Dissenting Shareholders . Notwithstanding anything in this Agreement to the contrary, shares of I BHC Stock that are held by shareholders of I BHC who have complied with the terms and provisions of Subchapter H of Chapter 10 of the TBOC (each a Dissenting Shareholder ) shall be entitled to those rights and remedies set forth in Subchapter H of Chapter 10 of the TBOC; provided, however , in the event that a shareholder of I BHC fails to perfect, withdraws or otherwise loses any such right or remedy granted by the Subchapter H of Chapter 10 of the TBOC, each share of I BHC Stock held by such shareholder shall be converted into and represent only the right to receive the consideration as specified in Section 1.05.
Section 1.08 Exchange of Certificates .
A. At least twenty (20) days prior to the Closing Date (unless IBG and I BHC shall mutually agree in writing to a later date), I BHC shall mail or cause to be mailed to each holder of record of one or more certificates representing shares of I BHC Stock (the Certificates ) the following: (i) a letter of transmittal (which shall specify that delivery of the Certificates shall be effected, and risk of loss and title to the Certificates shall pass, only upon receipt of the Certificates by IBG) and (ii) instructions for use in effecting the surrender of the Certificates (collectively, the Transmittal Documents ). The Transmittal Documents shall be addressed to the most current address, according to the books and records of I BHC, of each holder of record of Certificate(s).
B. If a holder of Certificates surrenders such Certificates and a properly executed letter of transmittal to IBG, as paying agent, at least two (2) business days prior to the Closing Date, then, on the Closing Date, IBG will deliver to such holder of Certificates the aggregate Per Share Shareholder Consideration with respect to the Certificates surrendered that such holder is entitled to receive in connection with the Closing pursuant to Section 1.05. If a holder of Certificates surrenders such Certificates and a properly executed letter of transmittal to IBG, as paying agent, at any time after two (2) business days prior to the Closing Date, then IBG will promptly, but in no event later than two (2) business days following receipt of such Certificates and letter of transmittal, deliver to such holder of Certificates the aggregate Per Share Shareholder Consideration with respect to the Certificates surrendered which such holder is entitled to receive in connection with the Closing pursuant to Section 1.05.
C. At or following the Closing, as applicable, pursuant to the exchange procedures set forth in Section 1.08(B), IBG shall deliver the Aggregate Consideration and the Additional Aggregate Consideration, if any, as follows:
(1) To each I BHC shareholder, an amount of cash equal to the product of (i) the Per Share Shareholder Consideration (as increased by the pro rata allocation of the Additional Aggregate Consideration, if any), multiplied by (ii) the number of shares of I BHC Stock represented by the Certificate surrendered by such I BHC shareholder.
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(2) To each holder of I BHC Options, an amount of cash as set forth beside their name in Schedule 1.05(B)(1) (as increased by the pro rata allocation of the Additional Aggregate Consideration, if any) .
D. In the event that any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming such Certificate to be lost, stolen or destroyed and, if required by IBG, the posting by such person of a bond in such amount as IBG may reasonably determine is necessary as indemnity against any claim that may be made against it with respect to such Certificate, to IBG, as the paying agent, shall deliver in exchange for such lost, stolen or destroyed Certificate the aggregate Per Share Shareholder Consideration payable with respect to such Certificate.
E. Until the holder of Certificates surrenders such Certificates and a properly executed letter of transmittal to IBG, such holder shall not be entitled to receive the Per Share Shareholder Consideration payable with respect to such Certificate. No interest will be paid on the Per Share Shareholder Consideration payable with respect to such Certificate.
F. After the Effective Time, there shall be no further registrations or transfers of Certificates on the stock transfer records of I BHC.
G. Notwithstanding the foregoing, none of IBG, I BHC or the paying agent shall be liable to any holder of I BHC Stock or I BHC Options for any amount delivered in good faith to a public official pursuant to any applicable abandoned property, escheat or similar laws.
Section 1.09 Effective Time . The Effective Time as that term is used in this Agreement means the effective time of the Merger as specified in the Certificate of Merger filed with and certified by the Secretary of State of Texas. The Certificate of Merger shall be filed as soon as practicable after the Closing Date.
Section 1.10 Subsequent Merger . Promptly after the Effective Time, and in any event within three (3) business days, IBG shall cause the Subsequent Merger and the Bank Merger to be consummated.
ARTICLE II
THE CLOSING AND THE CLOSING DATE
Section 2.01 Time and Place of the Closing and Closing Date . The transactions contemplated by this Agreement will be consummated on a date mutually agreeable to IBG and I BHC that is within ten (10) days after the receipt of all necessary regulatory, corporate, and other approvals, and the expiration of any and all mandatory waiting periods (the Closing Date ). On the Closing Date, a meeting (the Closing ) will take place at which the parties to this Agreement will exchange certificates, letters and other documents in order to determine whether all of the conditions set forth in ARTICLE VII and ARTICLE VIII have been satisfied or waived or whether any condition exists that would permit a party to this Agreement to terminate this Agreement. If no such condition then exists or if no party elects to exercise any right it may have to terminate this Agreement, then and thereupon the appropriate parties shall execute such documents and instruments as may be necessary or appropriate in order to effect the transactions contemplated by this Agreement.
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The Closing shall take place on the Closing Date at such time and place to which IBG and I BHC may agree.
Section 2.02 Actions to be Taken at the Closing by I BHC . At the Closing, I BHC shall execute and acknowledge (where appropriate) and deliver to IBG such documents and certificates necessary to carry out the terms and provisions of this Agreement, including the following (all of such actions constituting conditions precedent to IBGs obligations to close hereunder):
A. A certificate, dated as of the Closing Date, duly executed by the Secretary of I BHC, acting solely in her capacity as an officer of I BHC, pursuant to which I BHC shall certify (i) the due adoption by the Board of Directors of I BHC (the I BHC Board ) of corporate resolutions attached to such certificate authorizing the execution and delivery of this Agreement, the Merger Agreement and any other agreements and documents contemplated hereby and thereby, and the consummation of the transactions contemplated hereby and thereby; (ii) the due adoption by the shareholders of I BHC authorizing the execution and delivery of this Agreement, the Merger Agreement and any other agreements and documents contemplated hereby and thereby, and the consummation of the transactions contemplated hereby and thereby, including the Merger; (iii) the incumbency and true signatures of those officers of I BHC duly authorized to act on its behalf in connection with the execution and delivery of this Agreement, the Merger Agreement and any other agreements and documents contemplated hereby and thereby, and the taking of all actions contemplated hereby and thereby on behalf of I BHC; and (iv) a true and correct list of the holders of I BHC Stock and I BHC Options as of the Closing Date;
B. A certificate, dated as of the Closing Date, duly executed by the Secretary of I Bank, acting solely in her capacity as an officer of I Bank, pursuant to which I Bank shall certify (i) the due adoption by the Board of Directors of I Bank (the I Bank Board ) of corporate resolutions attached to such certificate authorizing the execution and delivery of a merger agreement providing for the Bank Merger (the Bank Merger Agreement ) and any other agreements and documents contemplated hereby and thereby, and the consummation of the transactions contemplated hereby and thereby, including the Bank Merger; (ii) the due adoption by I BHC as the sole shareholder of I Bank authorizing the execution and delivery of the Bank Merger Agreement and any other agreements and documents contemplated hereby and thereby, and the consummation of the transactions contemplated hereby and thereby, including the Bank Merger; (iii) the incumbency and true signatures of those officers of I Bank duly authorized to act on its behalf in connection with the execution and delivery of the Bank Merger Agreement and any other agreements and documents contemplated hereby and thereby, and the taking of all actions contemplated hereby and thereby on behalf of I Bank; and (iv) a true and correct list of the shareholder of I Bank;
C. A certificate duly executed by the President of I BHC, acting solely in his capacity as an officer of I BHC, dated as of the Closing Date, pursuant to which I BHC shall certify, that (i) all of the representations and warranties made in Article III of this Agreement are true and correct in all material respects on and as of the date of such certificate as if made on such date, (ii) I BHC has performed and complied in all material respects with all of its obligations and agreements required to be performed on or before the Closing Date under this Agreement, and (iii) there has been no Material Adverse Change (as defined in Section 11.10) with respect to I BHC or I Bank since September 30, 2011;
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D. Evidence reasonably satisfactory to IBG that, as of the Effective Time, (i) all Employee Plans (as defined in Section 3.29) required to be terminated by IBG prior to the Closing have been terminated in accordance with the terms of such Employee Plans, the Code, the Employee Retirement Income Security Act of 1974, as amended ( ERISA ), and all other applicable laws and regulations and that all affected participants have been notified of such terminations; (ii) all outstanding options, warrants, agreements or other commitment of any kind or character obligating I BHC to (x) purchase shares of I BHC Stock, or (y) issue shares of I BHC Stock, including those items listed in Schedule 3.03 (collectively, the I BHC Stock Obligations ), have been terminated, satisfied or discharged; (iii) all shareholder agreements related to shares of stock of I BHC and I Bank have been terminated and any claims related thereto (the Shareholder Agreement Obligations) have been waived, satisfied, or discharged; and (iv) all claims related to the exchange of I BHC Stock for shares of I Bank common stock as part of the formation of I BHC as a bank holding company (the Exchange Obligations) have been waived, satisfied or discharged;
E. All consents and approvals required to be obtained by I BHC from third parties to consummate the transactions contemplated by this Agreement, including those listed on Schedule 4.05;
F. Supplemental disclosure schedules reflecting any material changes to the representations of I BHC in ARTICLE III between the date of this Agreement and the Closing Date;
G. The Releases (as defined in Section 5.17), signed by the directors and officers of I BHC and I Bank;
H. The Support Agreements (as defined in Section 5.19) signed by the directors of I BHC and I Bank;
I. Executed agreements, certificates of merger, certificates, and other documents to evidence and facilitate the Subsequent Merger and the Bank Merger; and
J. All other documents required to be delivered to IBG by I BHC under the provisions of this Agreement and all other documents, certificates and instruments as are consistent with the intent of this Agreement and reasonably requested by IBG or its counsel.
Section 2.03 Actions to be Taken at the Closing by IBG . At the Closing, IBG shall execute and acknowledge (where appropriate) and deliver to I BHC such documents and certificates necessary to carry out the terms and provisions of this Agreement, including the following (all of such actions constituting conditions precedent to I BHCs obligations to close hereunder):
A. A certificate, dated as of the Closing Date, executed by the Secretary of IBG, acting solely in her capacity as an officer of IBG, pursuant to which IBG shall certify (i) the due adoption by the Board of Directors of IBG (the IBG Board ) of corporate resolutions attached to such certificate authorizing the execution and delivery of this Agreement, the Merger Agreement, a merger agreement providing for the Subsequent Merger (the Subsequent Merger Agreement ), and the other agreements and documents contemplated hereby and thereby, and the consummation of the transactions contemplated hereby and thereby, including the Merger and the Subsequent Merger; and (ii) the incumbency and true signatures of those officers of IBG duly authorized to act on its behalf in connection with the execution and delivery of this Agreement, the Merger Agreement, the Subsequent Merger Agreement and any other agreements and documents contemplated hereby and thereby, and the consummation of the transactions contemplated hereby and thereby on behalf of IBG;
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B. A certificate, dated as of the Closing Date, duly executed by the Secretary of Independent Bank, acting solely in her capacity as an officer of Independent Bank, pursuant to which Independent Bank shall certify (i) the due adoption by the Board of Directors of Independent Bank (the Independent Bank Board ) of corporate resolutions attached to such certificate authorizing the execution and delivery of the Bank Merger Agreement and any other agreements and documents contemplated hereby and thereby, and the consummation of the transactions contemplated hereby and thereby; (ii) the due adoption by IBG as the sole shareholder of Independent Bank authorizing the execution and delivery of the Bank Merger Agreement and any other agreements and documents contemplated hereby and thereby, and the consummation of the transactions contemplated hereby and thereby, including the Bank Merger; (iii) the incumbency and true signatures of those officers of Independent Bank duly authorized to act on its behalf in connection with the execution and delivery of the Bank Merger Agreement and any other agreements and documents contemplated hereby and thereby, and the consummation of the transactions contemplated hereby and thereby, on behalf of Independent Bank; and (iv) a true and correct list of the shareholder of Independent Bank as of the Closing Date;
C. A certificate, dated as of the Closing Date, executed by the Secretary of Newco, acting solely in her capacity as an officer of Newco, pursuant to which Newco shall certify (i) the due adoption by the Board of Directors of Newco (the Newco Board ) of corporate resolutions attached to such certificate authorizing the execution and delivery of the Merger Agreement, the Subsequent Merger Agreement and the other agreements and documents contemplated hereby and thereby, and the consummation of the transactions contemplated hereby and thereby; (ii) the due adoption by the sole shareholder of Newco authorizing the execution and delivery of the Merger Agreement, the Subsequent Merger Agreement and any other agreements and documents contemplated hereby and thereby, and the consummation of the transactions contemplated hereby and thereby, including the Merger and the Subsequent Merger; and (iii) the incumbency and true signatures of those officers of Newco duly authorized to act on its behalf in connection with the execution and delivery of the Merger Agreement, the Subsequent Merger Agreement and any other agreements and documents contemplated hereby and thereby, and the consummation of the transactions contemplated hereby and thereby on behalf of Newco;
D. A certificate, dated as of the Closing Date, duly executed by the Chairman of the Board of IBG, acting solely in his capacity as an officer of IBG, pursuant to which IBG shall certify that (i) all of the representations and warranties made in Article IV of this Agreement are true and correct in all material respects on and as of the date of such certificate as if made on such date and (ii) IBG has performed and complied in all material respects with all of its obligations and agreements required to be performed on or before the Closing Date under this Agreement;
E. All consents and approvals required to be obtained by IBG from third parties to consummate the transactions contemplated by this Agreement, including those listed on Schedule 4.05 ;
F. Executed agreements, certificates of merger, certificates, and other documents to evidence and facilitate the Subsequent Merger and the Bank Merger; and
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G. All other documents required to be delivered to I BHC by IBG under the provisions of this Agreement and all other documents, certificates and instruments as are consistent with the terms of this Agreement and reasonably requested by I BHC or its counsel.
Section 2.04 Further Assurances . At any time and from time to time within twelve months after the Closing, at the reasonable request of any party to this Agreement and without further consideration, any party so requested will execute and deliver such other instruments and take such other action as the requesting party may reasonably deem necessary or desirable in order to effectuate the transactions contemplated hereby. In the event that, at any time after the Closing any further commercially reasonable action is necessary or desirable to carry out the purposes of this Agreement, each party hereto shall take or cause to be taken all such commercially reasonable actions.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF I BHC
I BHC hereby makes the following representations and warranties to IBG. I BHC agrees to provide to IBG at the Closing supplemental disclosure schedules (the Schedules ) reflecting any material changes to the representations and warranties set forth herein between the date of this Agreement and the Closing Date. The disclosure of a matter on any Schedule shall constitute disclosure for purposes of all Schedules required by this Agreement.
Section 3.01 Organization and Ownership .
A. I BHC is a bank holding company registered under the Bank Holding Company Act of 1956, as amended. I BHC is a corporation duly organized, validly existing and in good standing under all laws, rules and regulations of the State of Texas. I BHC has all requisite corporate power and authority to own I Bank as now owned, and to enter into and carry out its obligations under this Agreement and the Merger Agreement. True and complete copies of the Certificate of Formation and Bylaws of I BHC, as amended to date, have been delivered to IBG.
B. Schedule 3.01B contains a true and correct list of the holders of I BHC Stock and I BHC Options as of the date of this Agreement and, except as set forth in Schedule 3.01B, no other person or entity has any equity or other interest in I BHC. Except as described in this Section, I BHC is the sole record and beneficial owner of all of the issued and outstanding shares of capital stock of I Bank, free and clear of all liens, security interests, and encumbrances of every kind or character, and no other person or entity has any equity or other interest in I Bank . In connection with the formation of I BHC, shareholders of I Bank were required to exchange their I Bank stock for I BHC stock. Schedule 3.04B contains a list of those I Bank stock certificates that have not been returned to I BHC and cancelled. I BHC does not, directly or indirectly, own or control any Affiliate (as defined in Section 11.10) or Subsidiary (as defined in Section 11.10), other than I Bank. I BHC has no equity interest, direct or indirect, in any other bank or corporation or in any partnership, joint venture or other business enterprise or entity, and the business carried on by I BHC has not been conducted through any other direct or indirect Subsidiary or Affiliate of I BHC other than I Bank. The persons listed in Schedule 5.16A and Schedule 5.16B collectively own more than 67 percent of the issued and outstanding shares of I BHC Stock as of the date of this Agreement.
Section 3.02 Execution and Delivery. I BHC has full corporate power and authority to execute and deliver this Agreement and the Merger Agreement and to consummate the transactions contemplated hereby and thereby. The execution and delivery of this Agreement and the Merger
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Agreement, and (provided the required regulatory and shareholder approvals are obtained) the consummation of the transactions contemplated hereby and thereby, have been duly and validly approved by the I BHC Board. Other than approval by the requisite vote of the shareholders of I BHC, no other corporate proceedings or approvals are necessary on the part of I BHC to approve this Agreement or the Merger Agreement, and to consummate the transactions contemplated hereby and thereby. This Agreement, the Merger Agreement, and the other agreements and documents contemplated hereby and thereby, have been or at Closing will be duly executed by I BHC and each such agreement or document constitutes or at Closing will constitute a legal, valid and binding obligation of I BHC, enforceable in accordance with its respective terms and conditions, except as enforceability may be limited by bankruptcy, conservatorship, insolvency, moratorium, reorganization, receivership or similar laws and judicial decisions affecting the rights of creditors generally and by general principles of equity (whether applied in a proceeding at law or in equity).
Section 3.03 I BHC Capitalization. The authorized capital stock of I BHC consists of 5,000,000 shares of common stock, $8.00 par value per share, of which 1,035,000 shares of I BHC Stock are issued and outstanding as of the date of this Agreement and 50,000 shares of preferred stock, of which no shares are issued and outstanding as of the date of this Agreement. All of such issued shares are validly issued, fully paid and nonassessable. Except as set forth in Schedule 3.03 , there are no (A) other outstanding equity securities of any kind or character, or (B) outstanding subscriptions, options, convertible securities, rights, warrants, calls or other agreements or commitments of any kind issued or granted by, or binding upon, I BHC to purchase or otherwise acquire any security of or equity interest in I BHC, obligating I BHC to issue any shares of, restricting the transfer of or otherwise relating to shares of its capital stock of any class. Except as set forth in Schedule 3.03, there are no outstanding contractual obligations of I BHC to vote or dispose of any shares of I BHC Stock. There are no shareholder agreements, voting trusts or similar agreements relating to the I BHC Stock. All of the issued and outstanding shares of the I BHC Stock have been duly authorized, validly issued and are fully paid and nonassessable, and have not been issued in violation of the preemptive rights of any person. Such shares of the I BHC Stock have been issued in material compliance with the securities laws of the United States and other jurisdictions having applicable securities laws. The issuance of I BHC Stock for shares of I Bank common stock was pursuant to a legally binding exchange, is not subject to rescission, and no shareholder of I BHC or former shareholder of I Bank has any claim or cause of action with respect to such exchange. Except as set forth in Schedule 3.03 , there are no restrictions applicable to the payment of dividends on the shares of the I BHC Stock except pursuant to applicable laws and regulations, and all dividends declared prior to the date of this Agreement have been paid.
Section 3.04 I Bank.
A. I Bank is a Texas state savings bank, duly organized, validly existing and in good standing under the laws of the State of Texas. I Bank has all requisite corporate power and authority (including all licenses, franchises, permits and other governmental authorizations as are legally required) to carry on its business as now being conducted, to own, lease and operate its properties and assets as now owned, leased or operated and to enter into and to carry on the business and activities now conducted by it. True and complete copies of the Articles of Incorporation and Bylaws of I Bank, as amended to date, have been delivered to IBG. I Bank is an insured bank as defined in the Federal Deposit Insurance Act of 1950, as amended (the FDIA ). The nature of the business of I Bank does not require it to be qualified to do business in any jurisdiction other than the State of Texas. Except as set forth in Schedule 3.04(A), I Bank has no equity interest, direct or indirect, in any other bank or corporation or in any partnership, joint venture or other business
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enterprise or entity, except as acquired through settlement of indebtedness, foreclosure, the exercise of creditors remedies or in a fiduciary capacity, and the business carried on by I Bank has not been conducted through any other direct or indirect Subsidiary or Affiliate of I Bank.
B. The authorized capital stock of I Bank consists of 5,000,000 shares of common stock, $8.00 par value per share, of which 1,010,000 shares are issued and outstanding as of the date of this Agreement. I BHC is in possession of all certificates evidencing all of the shares of capital stock of I Bank except as noted on Schedule 3.04 B . All of the outstanding shares of capital stock or other securities evidencing ownership of I Bank are duly authorized, validly issued, fully paid and nonassessable and have not been issued in violation of the preemptive rights of any person and have been issued in material compliance with applicable securities laws. There are no restrictions applicable to the payment of dividends on the shares of the capital stock of I Bank, except as set forth in Schedule 3.04B or otherwise pursuant to applicable laws and regulations, and all dividends declared prior to the date of this Agreement on such capital stock have been paid. There are no (A) other outstanding equity securities of any kind or character, or (B) outstanding subscriptions, contracts, options, convertible securities, preemptive rights, warrants, calls or other agreements or commitments of any kind issued or granted by, binding upon or otherwise obligating I Bank to issue, sell or otherwise dispose of, or to purchase, redeem or otherwise acquire, any shares of capital stock of I Bank. There are no outstanding contractual obligations of I Bank to vote or dispose of any shares of capital stock of I Bank. There are no shareholder agreements, voting trusts or similar agreements relating to the capital stock of I Bank that will impair the consummation of the transactions contemplated by this Agreement.
Section 3.05 No Violation . Except as set forth in Schedule 3.05, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby, nor compliance by I BHC or I Bank with any of the terms or provisions hereof (provided the required regulatory and shareholder approvals are obtained) will (i) violate any provision of the charters, articles, certificates or bylaws of I BHC or I Bank; (ii) violate any statute, code, ordinance, rule, regulation, judgment, order, writ, decree or injunction applicable to I BHC or I Bank or any of their Properties (as defined in Section 11.10) or assets; (iii) violate, conflict with, result in a breach of any provision of or the loss of any benefit under, constitute a default (or an event which, with notice or the lapse of time, or both, would constitute a default) under, result in the termination or cancellation under, accelerate the performance required by or rights or obligations under, or result in the creation of any lien upon any of the respective Properties or assets of I BHC or I Bank under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture or deed of trust, or any material license, lease, agreement, contract or other instrument or obligation to which I BHC or I Bank is a party, or by which I BHC or I Bank or any of their respective Properties, assets or business activities may be bound or subject.
Section 3.06 Compliance with Laws, Permits and Instruments . I BHC and I Bank, and their respective employees and agents, hold all material licenses, registrations, franchises, permits and authorizations necessary for the lawful conduct of their respective businesses. Except as set forth in Schedule 3.06 , I BHC and I Bank are in compliance with all applicable laws, statutes, orders, rules, regulations and policies of any Government Authority (as defined in Section 11.10), except where the failure, whether individually or in the aggregate, to be so in compliance could not reasonably be expected to cause a Material Adverse Change.
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Section 3.07 Financial Statements .
A. I BHC has made available to IBG copies of the audited financial statements of I BHC as of and for the years ended December 31, 2010 and December 31, 2009 (together, the I BHC Financial Statements ) and I BHCs FR Y-6, and FR Y-9SP reports filed during 2010 and 2011 (together, the I BHC Regulatory Reports ). Each of the I BHC Financial Statements (including, in each case, any related notes), was prepared in accordance with GAAP (except as may be indicated in the notes to such financial statements) and fairly presented, in all material respects, the financial position of I BHC at the dates and for the periods indicated. Each of the I BHC Regulatory Reports fairly presents, in all material respects, the financial position of I BHC and the result of its operations at the date and for the periods indicated in conformity with the instructions for the preparation of I BHC Regulatory Reports as promulgated by applicable regulatory authorities.
B. I BHC has made available to IBG true and complete copies of the Reports of Condition and Income for I Bank filed during 2010 and 2011 ( I Bank Call Reports ). Each of the I Bank Call Reports fairly presents, in all material respects, the financial position of I Bank and the results of its operations at the dates and for the periods indicated in conformity, in all material respects, with the instructions for the preparation of I Bank Call Reports as promulgated by applicable regulatory authorities. The I Bank Call Reports do not contain any items of material special or nonrecurring income or any other income not earned in the ordinary course of business except as expressly specified therein or in Schedule 3.07 . I Bank has calculated its allowance for loan losses in accordance with GAAP and, to the extent applicable, regulatory accounting principles ( RAP ) as applied to Texas state savings banks and in accordance with all applicable rules and regulations. To the Best Knowledge of I BHC, the allowance for loan losses account for I Bank is, and as of the Closing Date should be, adequate in all material respects to provide for all losses on the loans and other real estate owned of I Bank.
Section 3.08 Litigation . Except as disclosed in Schedule 3.08, neither I BHC nor I Bank is a party to any, and there are no pending or, to the Best Knowledge (as defined in Section 11.10) of I BHC, threatened, legal, administrative, arbitral or other proceedings, claims, actions or governmental or regulatory investigations of any nature against I BHC or I Bank which are reasonably likely, individually or in the aggregate, to result in a Material Adverse Change, nor, to the Best Knowledge of I BHC, is there any reasonable basis for any proceeding, claim or action against I BHC or I Bank that would be reasonably likely, individually or in the aggregate, to result in a Material Adverse Change. There is no injunction, order, judgment or decree imposed upon I BHC or I Bank or the assets or Property of I BHC or I Bank that has resulted in, or is reasonably likely to result in, a Material Adverse Change.
Section 3.09 Consents and Approvals . The I BHC Board (at a meeting duly called and held) has resolved or will resolve to (i) call a special meeting of shareholders for the purpose of approving and adopting the Merger and this Agreement, and (ii) recommend to the I BHC shareholders the approval and adoption of the Merger and this Agreement. Except for the approvals set forth in Schedule 4.05 , no approval, consent, order or authorization of, or registration, declaration or filing with, any Governmental Authority or other third party is required on the part of I BHC in connection with the execution, delivery or performance of this Agreement or the agreements contemplated hereby, or the consummation by I BHC of the transactions contemplated hereby or thereby.
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Section 3.10 Undisclosed Liabilities . I BHC and I Bank have no material liability or obligation, accrued, absolute, contingent or otherwise and whether due or to become due (including unfunded obligations under any Employee Plan or liabilities for federal, state or local taxes or assessments) that are not reflected in or disclosed in the I BHC Financial Statements or the I Bank Call Reports, except (A) those liabilities, obligations and expenses incurred in the ordinary course of business and materially consistent with past business practices since September 30, 2011, (B) liabilities, obligations and expenses incurred as a result of or arising from this Agreement or any other agreement or document contemplated hereby, or any of the transactions contemplated hereby or thereby, or (C) liabilities, obligations and expenses as disclosed on Schedule 3.10 .
Section 3.11 Title to Tangible Assets . True and complete copies of all existing deeds, leases and title insurance policies for all Properties and all mortgages, deeds of trust, security agreements and other documents describing encumbrances to which each such Property is subject have been made available to IBG. I BHC and I Bank have good and indefeasible title to, or valid leasehold interest in, all of their respective tangible assets and Properties including all material personal properties reflected in the I BHC Financial Statements and the I Bank Call Reports or acquired subsequent thereto, subject to no liens, mortgages, security interests, encumbrances or charges of any kind except (A) as described in Schedule 3.11 , (B) as noted in the I BHC Financial Statements and the I Bank Call Reports, (C) statutory liens not yet delinquent, (D) consensual landlord liens, (E) minor defects and irregularities in title and encumbrances that do not materially impair the use thereof for the purpose for which they are held, (F) pledges of assets in the ordinary course of business to secure public funds deposits, and (G) those assets and Properties disposed of for fair value in the ordinary course of business since September 30, 2011.
Section 3.12 Absence of Certain Changes or Events . Except as disclosed on Schedule 3.12 , since September 30, 2011 , each of I BHC and I Bank has conducted its business only in the ordinary course and has not, other than in the ordinary course of business and materially consistent with past practices:
A. Incurred any obligation or liability, whether absolute, accrued, contingent or otherwise, whether due or to become due, except deposits taken, federal funds purchased, Federal Home Loan Bank (FHLB) advances, and current liabilities for trade or business obligations, none of which, individually or in the aggregate, result in a Material Adverse Change;
B. Discharged or satisfied any lien or paid any obligation or liability, whether absolute or contingent, due or to become due in an amount greater than $25,000 in the aggregate;
C. Declared or made any payment of dividends or other distribution to its shareholders, or purchased, retired or redeemed, or obligated itself to purchase, retire or redeem, any of its shares of capital stock or other securities;
D. Issued, reserved for issuance, granted, sold or authorized the issuance of any shares of its capital stock or other securities or subscriptions, options, warrants, calls, rights or commitments of any kind relating to the issuance thereof;
E. Acquired any capital stock or other equity securities or acquired any ownership interest in any bank, corporation, partnership or other entity except (i) through settlement of indebtedness, foreclosure, or the exercise of creditors remedies, (ii) in a fiduciary capacity, the ownership of which does not expose it to any liability from the business, operations or liabilities of such person or (iii) the purchase of capital securities of the FHLB or TIB The Independent BankersBank, Dallas, Texas (TIB) in connection with advances for liquidity purposes;
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F. Mortgaged, pledged or subjected to lien, charge, security interest or any other encumbrance or restriction any of its Property, business or assets, tangible or intangible except (i) statutory liens not yet delinquent, (ii) consensual landlord liens, (iii) minor defects and irregularities in title and encumbrances that do not materially impair the use thereof for the purpose for which they are held, (iv) pledges of assets to secure public funds deposits, and (v) those assets and Properties disposed of for fair value since September 30, 2011;
G. Sold, transferred, leased to others or otherwise disposed of any material amount of its assets (except for assets disposed of for fair value in the ordinary course of business) or canceled or compromised any debt or claim, or waived or released any right or claim, of material value;
H. Terminated, canceled or surrendered, or received any notice of or threat of termination or cancellation of, any contract, lease or other agreement, or suffered any damage, destruction or loss, which, individually or in the aggregate, would constitute a Material Adverse Change;
I. Disposed of, permitted to lapse, transferred or granted any rights under, or entered into any settlement regarding the breach or infringement of, any United States or foreign license or Proprietary Right (as defined in Section 3.17) or modified any existing material rights with respect thereto;
J. Except for routine salary increases made in the ordinary course of business and materially consistent with past practices or as contemplated by this Agreement, made any material change in the rate of compensation, commission, bonus, vesting or other direct or indirect remuneration payable, paid or agreed or orally promised to pay, conditionally or otherwise, any bonus, extra compensation, pension, severance or vacation pay, to or for the benefit of any of its shareholders, directors, officers, employees or agents, or entered into any employment or consulting contract or other agreement with any director, officer or employee or adopted, amended or terminated (except as expressly provided herein) any pension, employee welfare, retirement, stock purchase, stock option, stock appreciation rights, termination, severance, income protection, golden parachute, savings or profit-sharing plan (including trust agreements and insurance contracts embodying such plans), any deferred compensation, or collective bargaining agreement, any group insurance contract or any other incentive, welfare or employee benefit plan or agreement maintained by I BHC or I Bank for the benefit of their respective directors, employees or former employees;
K. Made any capital expenditures or capital additions or betterments in excess of an aggregate of $25,000;
L. Instituted, had instituted against it, settled or agreed to settle, any litigation, action or proceeding before any Governmental Authority other than routine collection suits instituted by Governmental Authorities to collect amounts owed or suits in which the amount in controversy is less than $25,000;
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M. Suffered any change, event or condition that, individually or in the aggregate, has caused or would reasonably be anticipated to result in a Material Adverse Change, or any Material Adverse Change in earnings or costs or relations with its employees, agents, depositors, loan customers, correspondent banks, or suppliers;
N. Except for the transactions contemplated by this Agreement or as otherwise permitted hereunder, entered into any transaction, or entered into, modified or amended any contract or commitment involving a financial commitment over the term of the contract or commitment in excess of $25,000;
O. Entered into or given any promise, assurance or guarantee of the payment, discharge or fulfillment of any undertaking or promise made by any third person, firm or corporation other than in the ordinary course of business and materially consistent with past practices;
P. Sold, or knowingly disposed of, or otherwise divested of the ownership, possession, custody or control, of any corporate books or records of any nature that, in accordance with sound business practice, normally are retained for a period of time after their use, creation or receipt, except at the end of the normal retention period;
Q. Made any, or acquiesced with any, change in any accounting methods, principles or material practices, except as required by GAAP or RAP;
R. Sold ( provided, however , that payment at maturity or prepayment is not deemed a sale) Investment Securities (as defined in Section 11.10) or purchased Investment Securities, other than U.S. Treasury securities with a maturity of two years or less;
S. Made, renewed, extended the maturity of, or altered any of the material terms of any loan to any single borrower and his related interests in excess of the principal amount of $300,000;
T. Amended or made any change in its articles of incorporation, articles of association, or bylaws, or
U. Entered into any agreement or made any commitment whether in writing or otherwise to take any of the types of action described in subsections A through T above.
Section 3.13 Leases, Contracts and Agreements . Schedule 3.13 sets forth an accurate and complete description of all leases, subleases, licenses, contracts and agreements to which I BHC or I Bank is a party or by which I BHC or I Bank is bound (A) that obligate or could reasonably be expected to obligate I BHC or I Bank for an amount in excess of $25,000 over the entire term of any such agreement or (B) that are related or of a similar nature and that in the aggregate obligate or could reasonably be expected to obligate I BHC or I Bank for an amount in excess of $25,000 over the entire term of such related contracts (collectively, the Contracts ). I BHC has delivered or made available to IBG true and correct copies of all Contracts. For the purposes of this Agreement, the Contracts shall be deemed not to include loans made by, repurchase agreements made by, spot foreign exchange transactions of, bankers acceptances of or deposits by I Bank, but do include unfunded loan commitments and letters of credit issued by I Bank where the borrowers total direct and indirect indebtedness to I Bank is in excess of $25,000. Except as set forth in Schedule 3.13 , no participations or loans have been sold that have buy back, recourse or guaranty provisions that create contingent or direct liabilities of I Bank. I BHC and I Bank have not received any written notice of material default under or material noncompliance with any Contract. For each lease in which I BHC
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or I Bank is named as lessee, such party is the owner and holder of all the leasehold estates or other rights and interest purported to be granted by such instruments, in each case free and clear of any lessee-granted security interests, claims, liens (including tax liens), forfeitures, mortgages, pledges, penalties, encumbrances, assignments or charges whatsoever except as established by the lease or applicable law. I BHC and I Bank enjoy peaceful and undisturbed possession under all leases under which they are currently operating.
Section 3.14 Taxes and Tax Returns.
A. I BHC and I Bank have duly and timely filed or caused to be filed all federal, state, foreign and local tax returns and reports required to be filed by them on or prior to the date of this Agreement (all such returns and reports being accurate and complete in all material respects) and have duly paid or caused to be paid on their behalf all taxes that are due and payable by them on or prior to the date of this Agreement, other than taxes that are being contested in good faith and are adequately reserved against or provided for (in accordance with GAAP) on their respective financial statements. As of the date hereof, I BHC and I Bank have no material liability for taxes in excess of the amount reserved or provided for on their respective financial statements as of the date thereof.
B. There are no disputes pending with respect to, or claims or assessments asserted in writing for, any material amount of taxes upon I BHC or I Bank, nor has I BHC or I Bank given or been requested in writing to give any currently effective waivers extending the statutory period of limitation applicable to any tax return for any period.
C. Proper and accurate amounts, if required, have been withheld by I BHC and I Bank from their respective employees, independent contractors, creditors, shareholders or other third parties for all periods in material compliance with the tax withholding provisions of applicable law.
D. Since December 31, 2008, the federal income tax returns of I BHC and I Bank have not been audited or examined and no such audit is currently pending or, to the Best Knowledge of I BHC, threatened.
E. Except as disclosed in 3.14 E, neither I BHC nor I Bank has entered into any tax sharing agreement, tax allocation agreement, tax indemnity agreement, or similar contract or arrangement or any current or potential contractual obligation to indemnify any other person with respect to taxes that will require any payment by I BHC or I Bank after the date of this Agreement.
F. As used in this Agreement, the terms tax and taxes mean all federal, state, local and foreign income, excise, gross receipts, gross income, ad valorem, profits, gains, property, capital, sales, transfer, use, value-added, stamp, documentation, payroll, employment, severance, withholding, duties, intangibles, franchise, backup withholding, and other taxes, charges, levies or like assessments together with all penalties and additions to tax and interest thereon. Additionally, the terms tax return and tax returns means any return, declaration, report, claim for refund or information return or statement relating to taxes, including any schedule or attachment thereto and including any amendment thereof.
G. I BHC has delivered or made available to IBG correct and complete copies of all federal income tax returns filed by I BHC with the Internal Revenue Service ( IRS ), examination reports, and statements of deficiencies assessed against or agreed to by I BHC and I Bank, if any, since December 31, 2008.
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H. Schedule 3.14H sets forth an accurate and complete description as to the United States federal net operating and capital loss carryforwards for I BHC and I Bank (including the year such net operating or capital loss was generated and any limitations of such net operating or capital loss carryforwards under Code Sections 382, 383 or 384 or the Treasury Regulations, excluding any such limitations arising from the transactions contemplated under this Agreement) as of September 30, 2011.
Section 3.15 Insurance . Schedule 3.15 contains a complete list and brief description of all policies of insurance, including fidelity and bond insurance, maintained as of the date of this Agreement by I BHC and I Bank. All such policies (A) are sufficient for compliance by I BHC and I Bank, in all material respects, with all requirements of applicable law and all agreements to which I BHC and I Bank are parties, (B) are valid, outstanding and enforceable, except as enforceability may be limited by bankruptcy, conservatorship, insolvency, moratorium, reorganization, receivership, or similar laws and judicial decisions affecting the rights of creditors generally and by general principles of equity (whether applied in a proceeding at law or equity), and (C) are presently in full force and effect, and, except as set forth in Schedule 3.15 , no written notice has been received of the cancellation, or threatened or proposed cancellation, of any such policy and there are no unpaid premiums due thereon. Neither I BHC nor I Bank is in default with respect to the material provisions of any such policy or has failed to give any notice or present any known claim thereunder in a due and timely fashion. Each material Property of I BHC and I Bank is insured for the benefit of I BHC and I Bank in amounts deemed adequate by I BHCs and I Banks respective management against risks customarily insured against. Except as set forth in Schedule 3.15 , there have been no claims under any fidelity bonds of I BHC and I Bank since January 1, 2009, and to the Best Knowledge of I BHC, there are no facts that could reasonably be expected to form the basis of a claim under such bonds.
Section 3.16 No Adverse Change . Except as disclosed in the representations and warranties made in this Article III and the Schedules hereto, there has not been any Material Adverse Change since September 30, 2011, nor to the actual Knowledge of I BHC, has any event occurred that has resulted in, or has a reasonable probability of resulting in the future in, a Material Adverse Change.
Section 3.17 Proprietary Rights . I BHC and I Bank do not require the use of any material patent, patent application, patent right, invention, process, trademark (whether registered or unregistered), trademark application, trademark right, trade name, service name, service mark, copyright or any trade secret (collectively, Proprietary Rights ) for the business or operations of I BHC and I Bank that are not owned, held or licensed by I BHC or I Bank. I BHC and I Bank have not received within the past three years any written notice of infringement of or conflict with the rights of others with respect to the use by I BHC or I Bank of Proprietary Rights. There is no claim or action by any such person pending or, to the Best Knowledge of I BHC, threatened, with respect thereto.
Section 3.18 Transactions with Certain Persons and Entities . Except as set forth in Schedule 3.18 , neither I BHC nor I Bank owes any amount to (excluding deposit liabilities), or has any loan, contract, lease, commitment or other obligation from or to, any of the present or former directors or officers (other than compensation for current services not yet due and payable and reimbursement of expenses arising in the ordinary course of business) of I BHC or I Bank, and none of such persons owes any amount to I BHC or I Bank. There are no agreements, instruments, commitments, extensions of credit, tax sharing or allocation agreements (except for those described
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in Schedule 3.14E) or other contractual agreements of any kind between or among I BHC, whether on its own behalf or in its capacity as trustee or custodian for the funds of any Employee Plan, and any of its Affiliates (as defined in Section 11.10).
Section 3.19 Evidences of Indebtedness . All evidences of indebtedness and leases that are reflected as assets of I BHC and I Bank are legal, valid and binding obligations of the respective obligors thereof, enforceable in accordance with their respective terms (except as limited by applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors generally and the availability of injunctive relief, specific performance and other equitable remedies), and are not subject to any asserted or, to the Best Knowledge of I BHC, threatened, defenses, offsets or counterclaims that may reasonably be asserted against I BHC, I Bank or the present holder thereof. The credit and collateral files of I Bank contain all material information (excluding general, local or national industry, economic or similar conditions) actually known to I BHC or I Bank that is required to evaluate, in accordance with generally prevailing practices in the banking industry, the collectability of the loan portfolio of I Bank (including loans that will be outstanding if I Bank advances funds it is obligated to advance), except for items identified on I Banks internal exception list which has been made available to IBG. All loans classified substandard, doubtful, loss, nonperforming or problem loans internally by management of I Bank or any applicable Regulatory Agency (as defined in Section 11.10) are set forth on I Banks watch list, which is set forth in Schedule 3.19.
Section 3.20 Employee Relationships . Each of I BHC and I Bank has complied in all material respects with all applicable material laws relating to its relationships with its employees, and I BHC reasonably believes that the relationship between I Bank and its employees is good. Except as set forth in Schedule 3.20, to the Best Knowledge of I BHC, no key executive officer or manager of any of the operations of I Bank or any group of employees of I Bank has or have any present plans to terminate their respective employment with I Bank. Schedule 3.20 also contains a list of all employees of I Bank and their respective annual compensation.
Section 3.21 Condition of Assets . Except as set forth on Schedule 3.21 , all tangible assets used by I BHC and I Bank are in good operating condition, ordinary wear and tear excepted, and to the Best Knowledge of I BHC, conform, in all material respects, with all applicable ordinances, regulations, zoning and other laws, whether federal, state or local. None of I Banks premises or equipment is in need of maintenance or repairs other than ordinary routine maintenance or repairs that are not material in nature or cost.
Section 3.22 Environmental Compliance . Except as set forth in Schedule 3.22 :
A. To the Best Knowledge of I BHC and I Bank, I BHC and I Bank and all of their Properties and operations are in material compliance with all applicable Environmental Laws (as defined in Section 11.10). Neither I BHC nor I Bank have received any written notice of any past, present, or future conditions, events, activities, practices or incidents that could reasonably be expected to materially interfere with or prevent the compliance of I BHC and I Bank with all applicable Environmental Laws.
B. I BHC and I Bank have obtained all material permits, licenses and authorizations that are required under all applicable Environmental Laws.
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C. To the Best Knowledge of I BHC no Hazardous Materials (as defined in Section 11.10) exist on, about or within any of the Properties, nor, to the Best Knowledge of I BHC, have any Hazardous Materials previously existed on, about or within or been used, generated, stored, transported, disposed of, on or released from any of the Properties. The use that I BHC and I Bank make of the Properties will not result in the use, generation, storage, transportation, accumulation, disposal or release of any Hazardous Material on, in or from any of the Properties.
D. There is no action, suit, proceeding, investigation, or inquiry before any Governmental Authority pending or, to the Best Knowledge of I BHC, threatened, against I BHC or I Bank relating in any way to any Environmental Law. I Bank has no liability for remedial action under any Environmental Law. I BHC and I Bank have not received any written request for information by any Governmental Authority with respect to the condition, use or operation of any of the Properties nor has I BHC or I Bank received any written notice from any Governmental Authority or other person with respect to any violation of or claimed or potential liability of any kind under any Environmental Law (including any letter, notice or inquiry from any person or Governmental Authority informing I BHC or I Bank that it is or may be liable in any way under any Environmental Laws or requesting information to enable such a determination to be made).
Section 3.23 Regulatory Compliance .
A. Except as set forth on Schedule 3.23 , neither I BHC nor I Bank is now nor has been, since January 1, 2009, (i) subject to any cease-and-desist or other order or enforcement action issued by, (ii) a party to any written agreement, consent agreement or memorandum of understanding with, (iii) a party to any commitment letter or similar undertaking to, (iv) subject to any order or directive by, (v) ordered to pay any civil penalty by, (vi) a recipient of a supervisory letter from, or (vii) subject to any board resolutions adopted at the request or suggestion of, any Regulatory Agency or other Governmental Authority that restricts the conduct of its business or that relates to its capital adequacy, its ability to pay dividends, its credit or risk management policies, its management or its business (each of the items set forth in the preceding clauses (i) through (vii), a Regulatory Agreement ). There are no pending or, to the Best Knowledge of I BHC, threatened investigations by any Regulatory Agency with regard to I BHC or I Bank.
B. All reports, records, registrations, statements, notices and other documents or information required to be filed by I BHC and I Bank with any Regulatory Agency have been duly and timely filed and, to the Best Knowledge of I BHC, all information and data contained in such reports, records or other documents are true, accurate, correct and complete in all material respects.
Section 3.24 Absence of Certain Business Practices . Neither I BHC nor I Bank nor any of their respective officers, employees or agents, nor any other person acting on their behalf, has, directly or indirectly, since January 1, 2009, given or agreed to give any gift or similar benefit to any customer, supplier, governmental employee or other person who is or may be in a position to help or hinder the business of I BHC or I Bank (or assist I BHC or I Bank in connection with any actual or proposed transaction) that (A) may reasonably be expected to subject I BHC or I Bank to any material damage or penalty in any material civil, criminal or governmental litigation or proceeding, (B) if not given in the past, may reasonably have resulted in a Material Adverse Change or (C) if not continued in the future may reasonably be expected to result in a Material Adverse Change or may reasonably be expected to subject I BHC or I Bank to any material suit or penalty in any private or governmental litigation or proceeding.
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Section 3.25 Books and Records . The minute books, stock certificate books and stock transfer ledgers of I BHC and I Bank have been kept accurately in the ordinary course of business and are complete and correct in all material respects. The transactions entered therein represent bona fide transactions, and there have been no material transactions involving the business of I BHC and I Bank that properly should have been set forth therein and that have not been accurately so set forth.
Section 3.26 Forms of Instruments, Etc . I BHC has made or will make available to IBG copies of all of I Banks standard forms of notes, mortgages, deeds of trust and other routine documents of a like nature used on a regular and recurring basis in the ordinary course of its business.
Section 3.27 Fiduciary Responsibilities . Each of I BHC and I Bank has performed in all material respects all of its duties as a trustee, custodian, guardian or as an escrow agent in a manner that complies in all material respects with all applicable laws, regulations, orders, agreements, instruments and common law standards, where the failure to so perform would result in a Material Adverse Change. To the Best Knowledge of I BHC, there is no reasonable basis for any such Material Adverse Change.
Section 3.28 Guaranties. Except in the ordinary course of business, according to past business practices and in material compliance with applicable law, I BHC or I Bank have not guaranteed the obligations or liabilities of any other person, firm or corporation.
Section 3.29 Employee Benefit Plans .
A. Set forth on Schedule 3.29 is a complete and correct list of all employee benefit plans (as defined in Section 3(3) of ERISA), all specified fringe benefit plans as defined in Section 6039D of the Code, and all other bonus, incentive, compensation, deferred compensation, profit sharing, stock option, stock appreciation right, stock bonus, stock purchase, employee stock ownership, savings, severance, supplemental unemployment, layoff, salary continuation, retirement, pension, health, life insurance, disability, group insurance, vacation, holiday, sick leave, fringe benefit or welfare plan, or any other similar plan, agreement, policy or understanding (whether written or oral, qualified or nonqualified, currently effective or terminated), and any trust, escrow or other agreement related thereto, which (a) is currently or has been at any time since January 1, 2009, maintained or contributed to by I BHC or I Bank, or with respect to which I BHC or I Bank has any liability, or (b) provides benefits, or describes policies or procedures applicable to any officer, employee, service provider, former officer or former employee of I BHC or I Bank, or the dependents of any thereof, regardless of whether funded or unfunded (herein collectively the Employee Plans and each individually an Employee Plan ).
B. No Employee Plan is a defined benefit plan within the meaning of Section 3(35) of ERISA. I BHC has delivered or made available to IBG true, accurate and complete copies of the documents comprising each Employee Plan and any related trust agreements, annuity contracts, insurance policies or any other funding instruments ( Funding Arrangements ), any contracts with independent contractors (including actuaries and investment managers) that relate to any Employee Plan, the Form 5500 filed with the IRS in each of the three (3) most recent plan years with respect to each Employee Plan, and related schedules and opinions, and such other documents, records or other materials related thereto, as reasonably requested by IBG. There have been no prohibited transactions (described under Section 406 of ERISA or Section 4975(c) of the Code), breaches of fiduciary duty or any other breaches or violations of any law applicable to the Employee
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Plans and related Funding Arrangements that could reasonably be expected to subject IBG, I BHC or I Bank to any taxes, penalties or other liabilities. Each Employee Plan that is represented to be qualified under Section 401(a) of the Code has a current favorable determination or opinion letter, does not have any amendments for which the remedial amendment period under Code Section 401(b) has expired, and has been operated in material compliance with applicable law and in accordance with its terms. All reports, descriptions and filings required by the Code, ERISA or any government agency with respect to each Employee Plan have been timely and completely filed or distributed. Each Employee Plan has been operated in material compliance with applicable law or in accordance with its terms and any related trust is exempt from federal income tax under Section 501(a) of the Code. There are no pending claims, lawsuits or actions relating to any Employee Plan (other than ordinary course claims for benefits) and, to the Best Knowledge of I BHC, none are threatened. No written or, to the Best Knowledge of I BHC, oral representations have been made by I BHC or I Bank to any employee or former employee of I BHC or I Bank promising or guaranteeing any employer payment or funding for the continuation of medical, dental, life or disability coverage for such person, their dependent, or any beneficiary for any period of time beyond the end of the current plan year or beyond termination of employment (except to the extent of coverage required under Section 4980B of the Code). Compliance with FAS 106 will not create any material change to the I BHC Financial Statements or the I Bank Call Reports. Except to the extent that the payment could constitute an excess parachute payment under Section 280G of the Code, there are no contracts or arrangements providing for payments that will be nondeductible or subject to excise tax under Code Sections 4999 or 280G, nor will IBG be required to gross up or otherwise compensate any person because of the limits contained in such Code sections. There are no surrender charges, penalties, or other costs or fees that could reasonably be expected to be imposed by any person against I BHC, I Bank, an Employee Plan, or any other person, including an Employee Plan participant or beneficiary, as a result of the consummation of the transactions contemplated by this Agreement with respect to any insurance, annuity or investment contracts or other similar investment held by any Employee Plan.
C. With respect to each employee benefit plan (as defined in ERISA) maintained or contributed to or required to be contributed to, currently or in the past, by any trade or business with which I BHC or I Bank is required by any of the rules contained in the Code or ERISA to be treated as a single employer ( Controlled Group Plans ):
(i) All Controlled Group Plans which are group health plans (as defined in the Code and ERISA) have been operated to the Closing such that failures to operate such group health plans in compliance, in all material respects, with Part 6 of Subtitle B of Title 1 of ERISA and Sections 4980B and 4980D of the Code could reasonably be expected to subject I BHC or I Bank to liability;
(ii) There is no Controlled Group Plan that is a defined benefit plan (as defined in Section 3(35) of ERISA), nor has there been a Controlled Group Plan that is a defined benefit plan in the last five (5) calendar years; and
(iii) There is no Controlled Group Plan that is a multiple employer plan or multi-employer plan (as either such term is defined in ERISA), nor has there been a Controlled Group Plan that is either a multiple employer plan or multi-employer plan since 2007.
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D. All Employee Plan documents, annual reports or returns, audited or unaudited financial statements, actuarial valuations, summary annual reports, and summary plan descriptions issued with respect to the Employee Plans are correct, complete, and current in all material respects, have been timely filed, and there have been no material changes in the information set forth therein.
E. All contributions (including all employer contributions, employee salary reduction contributions and all premiums or other payments (other than claims)) that are due have been made with respect to each Employee Plan.
Section 3.30 No Excess Parachute Payments . No amount, whether in cash or property or vesting of property, that will be received by or benefit provided to, any officer, director or employee of I BHC, I Bank or any of their respective Affiliates who is a disqualified individual (as such term is defined in Treasury Regulation 1.280G-1) under any employment, severance or termination agreement, other compensation arrangement or benefit plan currently in effect will be an excess parachute payment (as such term is defined in 280G(b)(1) of the Code) solely as a result of the transactions contemplated by this Agreement; and no such person is entitled to receive any additional payment from I BHC, I Bank, or IBG in the event that the excise tax of Section 4999(a) of the Code is imposed on such person.
Section 3.31 Bank Secrecy Act, Foreign Corrupt Practices Act and U.S.A. Patriot Act . I Bank is in material compliance with the Bank Secrecy Act (12 U.S.C. §§ 1730(d) and 1829(b)), the United States Foreign Corrupt Practices Act and the International Money Laundering Abatement and Anti-Terrorist Financing Act, otherwise known as the U.S.A. Patriot Act, and all regulations promulgated thereunder. I Bank has properly certified all foreign deposit accounts and has made all necessary tax withholdings on all of its deposit accounts; furthermore, I Bank has timely and properly filed and maintained all requisite Currency Transaction Reports and other related forms, including any requisite Custom Reports required by any agency of the United States Treasury Department, including the IRS. I Bank has timely filed all Suspicious Activity Reports with the Financial Institutions Financial Crimes Enforcement Network (U.S. Department of the Treasury) required to be filed by it pursuant to the laws and regulations referenced in this Section.
Section 3.32 Data Processing Agreements . I Bank obtains its data processing services, ATM, and other information technology services exclusively through the contracts or agreements with the persons or entities described on Schedule 3.32 ( DP Contracts ). A true and correct executed copy of each DP Contract, as in effect as of the date hereof, has been provided to IBG. Other than the DP Contracts, I Bank has no agreement with any other person or entity for data processing, ATM or other technology services.
Section 3.33 Proxy/Information Statement . None of the information supplied or to be supplied by I BHC, I Bank or any of their respective directors, officers, employees or agents for inclusion or incorporation by reference in the proxy and/or information statement to be sent to the shareholders of I BHC in connection with the Merger ( Proxy/Information Statement ) will, at the date the Proxy/Information Statement is mailed to the shareholders of I BHC and, as the Proxy/Information Statement may be amended or supplemented, at the time of the I BHC shareholders meeting, contain any untrue statement of a material fact or omit to state any material fact with respect to I BHC necessary in order to make the statements therein with respect to I BHC, in light of the circumstances under which they are made, not misleading. All documents that I BHC is responsible for filing with any Regulatory Agency in connection with the Merger will comply, with respect to I BHC, in all material respects with the provisions of applicable law.
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Section 3.34 Dissenting Shareholders . To the Best Knowledge of I BHC, there is no plan or intention on the part of any shareholders of I BHC to exercise their appraisal rights in the manner provided by applicable law.
Section 3.35 Fair Housing Act, Home Mortgage Disclosure Act and Equal Credit Opportunity Act . I Bank is in compliance in all material respects with the Fair Housing Act (42 U.S.C. § 3601 et seq.), the Home Mortgage Disclosure Act (12 U.S.C. § 2801 et seq.) and the Equal Credit Opportunity Act (15 U.S.C. § 1691 et seq.) and all regulations promulgated thereunder. Since January 1, 2009, I Bank has not received any written notices of any violation of such acts or any of the regulations promulgated thereunder, and it has not received any written notice of any, and to the Best Knowledge of I BHC there is no, threatened administrative inquiry, proceeding or investigation with respect to its compliance with such laws.
Section 3.36 Usury Laws and Other Consumer Compliance Laws . All loans of I Bank have been made in compliance in all material respects with all applicable statutes and regulatory requirements at the time of such loan or any renewal thereof, including the Texas usury statutes as currently interpreted, Regulation Z (12 C.F.R. § 226 et seq.) issued by the Federal Reserve Board ( FRB ), the Federal Consumer Credit Protection Act (15 U.S.C. § 1601 et seq.), the Texas Consumer Credit Code (Tex. Rev. Civ. Stat. Ann. Art. 5062-2.01, et seq.) and all statutes governing the operation of banks operating in the State of Texas. Each such loan was made by I Bank in the ordinary course of its lending business.
Section 3.37 Zoning and Related Laws . All real property owned or operated by I Bank and the use thereof is in compliance with all applicable laws, ordinances, regulations, orders or requirements, including building, zoning and other laws, except where the failure, whether individually or in the aggregate, to be so in compliance could not reasonably be expected to cause a Material Adverse Change.
Section 3.38 Business Combination . This Agreement and the transactions contemplated hereby are exempt from the requirements of Subchapter M of Chapter 21 of the TBOC and any other applicable state takeover law or state law that purports to limit or restrict business combinations or the ability to acquire or vote shares.
Section 3.39 Representations Not Misleading . No representation or warranty by I BHC and I Bank contained in this Agreement contains or will contain on the Closing Date any untrue statement of a material fact or omits or will omit on the Closing Date to state a material fact necessary to make the statements contained herein, in light of the circumstances under which they were made, not misleading. To the actual Knowledge of I BHC, all written statements, exhibits, schedules, and other documents furnished to IBG by I BHC or I Bank under and pursuant to, or in anticipation of, this Agreement are accurate, complete, and correct in all material respects.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF IBG
IBG hereby makes the following representations and warranties to I BHC. IBG agrees to provide to I BHC at the Closing supplemental disclosure schedules reflecting any material changes to the representations and warranties set forth herein between the date of this Agreement and the Closing Date.
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Section 4.01 Organization and Ownership . IBG is a registered bank holding company under the Bank Holding Company Act of 1956, as amended. IBG is a corporation duly organized, validly existing and in good standing under the laws, rules and regulations of the State of Texas. IBG has all requisite corporate power and authority to own Independent Bank as now owned and to enter into and carry out its obligations under this Agreement, the Merger Agreement and the Subsequent Merger Agreement.
Section 4.02 Execution and Delivery . IBG has full corporate power and authority to execute and deliver this Agreement, the Merger Agreement and the Subsequent Merger Agreement, and to consummate the transactions contemplated hereby and thereby. The execution and delivery of this Agreement, the Merger Agreement and the Subsequent Merger Agreement and (provided the required regulatory approvals are obtained) the consummation of the transactions contemplated hereby and thereby, have been duly and validly approved by the IBG Board. Except for the written consent of IBG as the sole shareholder of Newco, no other corporate proceedings on the part of IBG are necessary to approve this Agreement, the Merger Agreement or the Subsequent Merger Agreement, and to consummate the transactions contemplated hereby and thereby. This Agreement, the Merger Agreement, the Subsequent Merger Agreement, and the other agreements and documents contemplated hereby and thereby have been, or at Closing will be, duly and validly executed and delivered to I BHC, and each constitutes or at Closing will constitute a valid and binding obligation of IBG, enforceable against IBG in accordance with its terms and conditions, except as enforceability may be limited by bankruptcy, conservatorship, insolvency, moratorium, reorganization, receivership or similar laws and judicial decisions affecting the rights of creditors generally and by general principles of equity (whether applied in a proceeding at law or in equity).
Section 4.03 Authorized and Outstanding Stock of Newco. The authorized capital stock of Newco will consist of 1,000 shares of common stock, $1.00 par value per share (the Newco Stock ). On the date the Merger Agreement is executed and delivered and on the Closing Date, 1,000 shares of Newco Stock will be issued and outstanding.
Section 4.04 Compliance with Laws, Permits and Instruments . IBG, Independent Bank and Newco, and their respective employees and agents, hold all material licenses, registrations, franchises, permits and authorizations necessary for the lawful conduct of their respective businesses.
Section 4.05 Consents and Approvals. Except for regulatory and other approvals as disclosed in Schedule 4.05 , no approval, consent, order or authorization of, or registration, declaration or filing with, any Governmental Authority or other third party is required on the part of IBG in connection with the execution, delivery or performance of this Agreement or the agreements contemplated hereby, including the Merger Agreement or the consummation by IBG of the transactions contemplated hereby or thereby.
Section 4.06 Regulatory Approval . IBG is well capitalized as defined by federal regulations as of the date hereof. Independent Bank has a CRA rating of satisfactory. Neither IBG nor Independent Bank is subject to any Regulatory Agreement, nor is IBG aware of any circumstance or event that could reasonably result in a Regulatory Agreement with respect to IBG or Independent Bank. IBG reasonably believes that it will be able to obtain all requisite regulatory approvals necessary to consummate the Merger.
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Section 4.07 Representations Not Misleading . No representation or warranty by IBG and Independent Bank contained in this Agreement contains or will contain on the Closing Date any untrue statement of a material fact or omits or will omit on the Closing Date to state a material fact necessary to make the statements contained herein, in light of the circumstances under which they were made, not misleading.
ARTICLE V
COVENANTS OF I BHC
I BHC covenants and agrees with IBG as follows:
Section 5.01 Commercially Reasonable Efforts . I BHC will use commercially reasonable best efforts to cause the consummation of the transactions contemplated hereby in accordance with the terms and conditions of this Agreement.
Section 5.02 Information Furnished by I BHC . I BHC shall promptly furnish or cause to be furnished to IBG, not more than two (2) business days after I BHCs receipt of IBGs written request, all information concerning I BHC and I Bank, including financial statements, required for inclusion in any statement or application made or filed by IBG to any Governmental Authority in connection with the transactions contemplated by this Agreement. I BHC represents and warrants that all information so furnished shall be true and correct in all material respects and shall not omit any material fact required to be stated therein or necessary to make the statements made, in light of the circumstances under which they were made, not misleading. I BHC shall otherwise fully cooperate with IBG in the filing of any applications or other documents necessary to consummate the transactions contemplated by this Agreement.
Section 5.03 Affirmative Covenants . Except as otherwise permitted or required by this Agreement, from the date hereof until the Effective Time, I BHC shall and shall cause I Bank to:
A. Maintain its corporate existence in good standing;
B. Maintain the general character of its business and conduct its business in its ordinary and usual manner;
C. Extend credit only in accordance with existing lending policies and practices;
D. Use commercially reasonable efforts to preserve its business organization intact; to retain the services of its present employees, officers, directors and agents; to retain its present customers, depositors, suppliers and correspondent banks; and to preserve its goodwill and the goodwill of its suppliers, customers and others having business relationships with it;
E. Use commercially reasonable efforts to obtain any approvals or consents required to maintain all existing contracts, leases and documents relating to or affecting its assets, Properties and business;
F. Maintain all offices, machinery, equipment, materials, supplies, inventories, vehicles and other Properties owned, leased or used by it (whether under its control or the control of others) in good operating repair and condition, ordinary wear and tear excepted;
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G. Comply in all material respects with all laws, regulations, ordinances, codes, orders, licenses, and permits applicable to its Properties and operations, the non-compliance with which could be reasonably expected to cause a Material Adverse Change;
H. Timely file all tax returns required to be filed by it and promptly pay all taxes, assessments, governmental charges, duties, penalties, interest and fines that become due and payable, except those being contested in good faith by appropriate proceedings;
I. Withhold from each payment made to each of its employees the amount of all taxes (including federal income taxes, FICA taxes and state and local income and wage taxes) required to be withheld therefrom and pay the same to the proper tax receiving officers;
J. Continue to follow and implement policies, procedures and practices regarding the identification, monitoring, classification and treatment of all assets in substantially the same manner as it has in the past;
K. Account for all transactions in accordance with GAAP (unless otherwise instructed by RAP, in which instance account for such transaction in accordance with RAP), specifically without limitation (i) maintaining the allowance for loan losses account for I Bank in an adequate amount to satisfy the requirements of GAAP and RAP (but in no event less than the amount of its allowance for loan losses as of September 30, 2011), and (ii) paying or accruing for by the Closing Date all liabilities, obligations, costs, and expenses owed or incurred by I BHC or I Bank on or prior to the Closing Date;
L. Perform all of its material obligations under contracts, leases and documents relating to or affecting its assets, Properties and business, except such obligations as it may in good faith reasonably dispute;
M. Maintain and keep in full force and effect, in all material respects, presently existing insurance coverage and give all notices and present all claims under all insurance policies in due and timely fashion; and
N. Timely file all reports required to be filed with Governmental Authorities and observe and conform, in all material respects, to all applicable laws, rules, regulations, ordinances, codes, orders, licenses and permits, except those being contested in good faith by appropriate proceedings.
Section 5.04 Negative Covenants . From the date of this Agreement through the Closing, without the prior written consent of IBG, I BHC shall not and I BHC shall cause I Bank to not:
A. Introduce any new material method of management or operation;
B. Intentionally take any action that could reasonably be anticipated to result in a Material Adverse Change;
C. Take or fail to take any action that could reasonably be expected to cause the representations and warranties made in Article III to be inaccurate in any material respect at the time of the Closing or preclude I BHC from making such representations and warranties (as modified by the supplemental Schedules) at the time of the Closing;
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D. Declare, set aside or pay any dividend or other distribution with respect to its capital stock other than the dividend to be paid by I BHC on the Closing Date as provided for in Section 1.05(D) of this Agreement;
E. Enter into, alter, amend, renew or extend any material contract or commitment which would result in an obligation of I BHC or I Bank to make payments in excess of $25,000, except for loans and extensions of credit in the ordinary course of business which are subject to the provisions of Sections 5.04(Y) and 5.04(Z);
F. Mortgage, pledge or subject to lien, charge, security interest or any other encumbrance or restriction any of its Properties, business or assets, tangible or intangible except in the ordinary course of business and consistent with prudent banking practices;
G. Cause or allow the loss of insurance coverage, unless replaced with coverage which is substantially similar (in amount and insurer) to that in effect as of the date of this Agreement;
H. Incur any indebtedness, obligation or liability, whether absolute or contingent, other than the receipt of deposits and trade debt , advances from the Federal Home Loan Bank or except in the ordinary course of business and consistent with prudent banking practices or in connection with the transactions contemplated by this Agreement or any of the agreements or documents contemplated hereby;
I. Discharge or satisfy any lien or pay any obligation or liability, whether absolute or contingent, due or to become due, except in the ordinary course of business and consistent with prudent banking practices;
J. Issue, reserve for issuance, grant, sell or authorize the issuance of any shares of its capital stock or other securities or subscriptions, options, warrants, calls, rights or commitments of any kind relating to the issuance thereto;
K. Amend or otherwise change its articles of association, charter, or bylaws;
L. Sell, transfer, lease to others or otherwise dispose of any material amount of its assets or Properties or cancel or compromise any material debt or claim, or waive or release any right or claim other than in the ordinary course of business and consistent with prudent banking practices;
M. Enter into any material transaction other than in the ordinary course of business;
N. Except in the ordinary course of the business and consistent with past practices, enter into or give any promise, assurance or guarantee of the payment, discharge or fulfillment of any undertaking or promise made by any other third person, firm or corporation;
O. Sell or knowingly dispose of, or otherwise divest itself of the ownership, possession, custody or control, of any corporate books or records of any nature that, in accordance with sound business practice, normally are retained for a period of time after their use, creation or receipt, except at the end of the normal retention period;
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P. Except for salary increases in the ordinary course of business and consistent with past practices of I BHC or I Bank, make any material change in the rate of compensation, commission, bonus or other direct or indirect remuneration payable, or pay or agree to or orally promise to pay, conditionally or otherwise, any bonus or extra compensation, pension, severance or vacation pay, to or for the benefit of any of its shareholders, directors, officers or employees, or enter into any employment or consulting contract (other than as contemplated by this Agreement) or other agreement with any director, officer or employee or adopt, amend in any material respect or terminate (other than termination of the Employee Benefit Plans contemplated by this Agreement) any pension, employee welfare, retirement, stock purchase, stock option, stock appreciation rights, termination, severance, income protection, golden parachute, savings or profit-sharing plan (including trust agreements and insurance contracts embodying such plans), any deferred compensation, or collective bargaining agreement, any group insurance contract or any other incentive, welfare or employee benefit plan or agreement maintained by it for the benefit of its directors, employees or former employees;
Q. Engage in any transaction with any Affiliate except in the ordinary course of business and consistent with past practices;
R. Acquire any capital stock or other equity securities or acquire any equity or ownership interest in any bank, corporation, partnership or other entity, except (i) through settlement of indebtedness, foreclosure, or the exercise of creditors remedies or (ii) in a fiduciary capacity, the ownership of which does not expose it to any liability from the business, operations or liabilities of such person or (iii) the purchase of capital securities of the FHLB or TIB in connection with advances for liquidity purposes.
S. Except as contemplated by this Agreement, terminate, cancel or surrender any contract, lease or other agreement or unreasonably permit any damage, destruction or loss which, in any case or in the aggregate, may reasonably be expected to result in a Material Adverse Change;
T. Dispose of, permit to lapse, transfer or grant any rights under, or knowingly breach or infringe upon, any United States or foreign license or Proprietary Right or materially modify any existing rights with respect thereto, except in the ordinary course of business and consistent with past practices;
U. Make any capital expenditures, capital additions or betterments in excess of an aggregate of $25,000;
V. Hire or employ any new officer or hire or employ any new non-officer employee, other than to replace non-officer employees;
W. Make any, or acquiesce with any, change in accounting methods, principles or material practices, except as required by GAAP or RAP;
X. Pay a rate on deposits at I Bank materially higher than is consistent with the ordinary course of business and consistent with past practices;
Y. Make any new loan to a single borrower and his related interests in excess of $300,000; provided that I BHC shall provide to IBG a weekly written report of all loans made, renewed, or modified during the previous week;
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Z. Renew, extend the maturity of, or alter the material terms of any loan except in compliance with I Banks existing policies and procedures and consistent with past practices and prudent banking principles;
AA. Renew, extend the maturity of, or alter any of the material terms of any classified loan or extension of credit;
BB. Sell (provided, however, that payment at maturity or prepayment is not deemed a sale) Investment Securities or purchase Investment Securities, other than U.S. Treasuries with a maturity of two years or less;
CC. Redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock; or
DD. I Bank shall not pay, or become liable for the payment of, any of the Transaction Costs.
Section 5.05 Access; Pre-Closing Investigation . I BHC shall afford the officers, directors, employees, attorneys, accountants, investment bankers and authorized representatives of IBG full access during regular business hours to all of the books, contracts, commitments, personnel and records of I BHC and I Bank, and furnish to IBG during such period all such information concerning I BHC and I Bank and their affairs as IBG may reasonably request, so that IBG may have full opportunity to make such reasonable investigation as it shall desire to make of the affairs of I BHC and I Bank, including access sufficient to verify the value of the assets and the liabilities of I BHC and I Bank and the satisfaction of the conditions precedent to IBGs obligations described in Article VIII. I BHC agrees at any time, and from time to time, to furnish to IBG as soon as practicable, any additional information that IBG may reasonably request.
Section 5.06 Invitations to and Attendance at Directors and Committee Meetings . I BHC shall cause I Bank to give notice to one (1) designee of IBG of, and shall invite such designee to attend, all regular and special meetings of the I BHC Board and the I Bank Board and all regular and special meetings of any senior management committee (including the executive committee and the loan and discount committee of I Bank) of I BHC and I Bank; provided that such designee shall excuse himself from such meetings while this Agreement or the transactions contemplated hereby are being discussed. If the Merger is finally disapproved by any appropriate Regulatory Agency or if this Agreement is terminated pursuant to its terms, IBGs designee will no longer be entitled to notice of and permission to attend such meetings.
Section 5.07 Additional Financial Statements. I BHC shall promptly furnish IBG with true and complete copies of each additional I BHC Regulatory Report and I Bank Call Report as soon as such reports are available.
Section 5.08 Untrue Representations. I BHC shall promptly notify IBG in writing if I BHC becomes aware of any fact or condition that makes untrue, or shows to have been untrue, in any material respect, any schedule or any other information furnished to IBG or any representation or warranty made in or pursuant to this Agreement or that results in I BHCs failure to comply with any covenant, condition or agreement contained in this Agreement.
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Section 5.09 Litigation and Claims. I BHC shall promptly notify IBG in writing of any litigation, or of any claim, controversy or contingent liability that is reasonably expected to become the subject of litigation, against I BHC or I Bank or affecting any of their Properties, if such litigation or potential litigation is reasonably likely, in the event of an unfavorable outcome, to result in a Material Adverse Change. I BHC shall promptly notify IBG of any legal action, suit or proceeding or judicial, administrative or governmental investigation, pending or, to the knowledge of I BHC, threatened against I BHC or I Bank that (i) questions or could reasonably be expected to question the validity of this Agreement or the agreements contemplated hereby, or any actions taken or to be taken by I BHC or I Bank pursuant hereto or (ii) seeks to enjoin or otherwise restrain the transactions contemplated hereby or thereby.
Section 5.10 Adverse Changes. I BHC shall promptly notify IBG in writing if any change shall have occurred or, to the Best Knowledge of I BHC, been threatened (or any development shall have occurred or, to the Best Knowledge of I BHC, been threatened involving a prospective change) in the business, financial condition or operations of I BHC and/or I Bank that has resulted in or would reasonably be expected to result in a Material Adverse Change.
Section 5.11 No Negotiation with Others . Neither I BHC nor any of its Affiliates, employees, directors, officers, financial advisors or agents will (i) solicit, encourage, initiate or participate in any negotiations or discussions with any third party with respect to any offer or proposal to merge with or acquire I BHC or all or substantially all the business of I BHC, whether by acquisition, purchase of stock or assets or otherwise; (ii) disclose to any third party any information concerning the business, Properties, books or records of I BHC or I Bank, except in the ordinary course of business for purposes, other than an acquisition or as compelled by law; or (iii) cooperate with any third party to make any proposal to merge with or acquire all or any part of the capital stock or assets of I BHC or I Bank, other than the sale by I BHC or I Bank of assets in the ordinary course of business consistent with past practices. Promptly upon receipt of any unsolicited offer, I BHC will communicate to IBG the terms of any proposal or request for information and the identity of the parties involved.
Section 5.12 Consents and Approvals . I BHC shall use commercially reasonable best efforts to obtain all consents and approvals from Regulatory Authorities and other third parties, including the third party consents listed on Schedule 4.05 , required of I BHC and/or I Bank in connection with the consummation of the transactions contemplated by this Agreement. I BHC will cooperate in all commercially reasonable respects with IBG to obtain all such approvals and consents required of IBG.
Section 5.13 Environmental Investigation; Right to Terminate Agreement .
A. IBG and its consultants, agents and representatives, at the sole cost and expense of IBG, shall have the right to the same extent that I BHC has the right, but not the obligation or responsibility, to inspect any Property, including conducting asbestos surveys and sampling, environmental assessments and investigation, and other environmental surveys and analyses including soil and ground sampling ( Environmental Inspections ). IBG shall notify I BHC in writing prior to any Environmental Inspection, and I BHC may place reasonable restrictions on the time of such Environmental Inspection. If, as a result of any such Environmental Inspection, further investigation ( Secondary Investigation ) including, test borings, soil, water and other sampling is deemed desirable by IBG, IBG shall (i) notify I BHC in writing of any Property for which it intends to conduct such a Secondary Investigation and the reasons for the Secondary Investigation, and (ii) at
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the sole cost and expense of IBG, commence the Secondary Investigation. IBG shall give reasonable written notice to I BHC of the Secondary Investigation, and I BHC may place reasonable time and place restrictions on the Secondary Investigation.
B. IBG shall make available to I BHC the results and reports of such Environmental Inspections and Secondary Investigations promptly after IBG receives or is advised of such results. IBG shall not have any liability or responsibility of any nature whatsoever for the results, conclusions or other findings related to any Environmental Inspection, Secondary Investigation or other environmental survey. If this Agreement is terminated, except as otherwise required by law, reports to any Governmental Authority of the results of any Environmental Inspection, Secondary Investigation or other environmental survey shall not be made by IBG. IBG shall make no such report prior to Closing unless required to do so by applicable law, and in such case will give I BHC reasonable written notice of IBGs intentions.
C. IBG shall have the right to terminate this Agreement if (i) the factual substance of any warranty or representation set forth in Section 3.22 is not materially true and accurate; (ii) the results of such Environmental Inspection, Secondary Investigation or other environmental survey are disapproved by IBG because the Environmental Inspection, Secondary Investigation or other environmental survey identifies material violations or potential material violations of Environmental Laws; (iii) I BHC has refused to allow IBG to conduct an Environmental Inspection or Secondary Investigation in a manner that IBG reasonably considers necessary; (iv) the Environmental Inspection, Secondary Investigation or other environmental survey identifies any past or present event, condition or circumstance that would or potentially could reasonably be expected to require a material remedial or cleanup action or result in a Material Adverse Change; (v) the Environmental Inspection, Secondary Investigation or other environmental survey identifies the presence of any underground or above ground storage tank in, on or under any Property that is not shown to be in material compliance with all Environmental Laws applicable to the tank either at the date of this Agreement or at a future time certain, or that has had a release of petroleum or some other Hazardous Material that has not been cleaned up to the satisfaction of the relevant Governmental Authority or any other party with a legal right to compel cleanup; or (vi) the Environmental Inspection, Secondary Investigation or other environmental survey identifies the presence of any asbestos-containing material in, on or under any Property, the removal of which could reasonably be expected to result in a Material Adverse Change. IBG shall advise I BHC in writing (the Environmental Notice ) as to whether IBG intends to terminate this Agreement because IBG disapproves of the results of the Environmental Inspection, Secondary Inspection or other environmental survey. Upon receipt of the Environmental Notice, I BHC shall have the opportunity to correct any objected to violations or conditions to IBGs reasonable satisfaction within 30 days after the date of the Environmental Notice. In the event that I BHC fails to demonstrate its satisfactory correction of the violations or conditions to IBG, IBG may terminate the Agreement on the 31 st day following the date of the Environmental Notice.
D. I BHC agrees to make available to IBG and its consultants, agents and representatives all documents and other material relating to environmental conditions of any Property including the results of other environmental inspections and surveys. I BHC also agrees that all engineers and consultants who prepared or furnished such reports may discuss such reports and information with IBG and shall be entitled to certify the same in favor of IBG and its consultants, agents and representatives and make all other data available to IBG and its consultants, agents and representatives.
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Section 5.14 Termination of Plans, Obligations and Agreements . Prior to the Closing Date, I BHC shall and shall cause I Bank to terminate the Employee Plans subject to compliance with applicable law, so long as any such action preserves the rights of the participants in such Employee Plans (including vesting rights). I BHC shall use its best efforts to cause the I BHC Stock Obligations to be terminated, satisfied or discharged prior to or on the Closing Date. I BHC shall use its best efforts to cause the Shareholder Agreement Obligations and the Exchange Obligations to be terminated, satisfied or discharged prior to the Closing Date.
Section 5.15 Disclosure Schedules . At least three (3) business days prior to the Closing, I BHC agrees to provide IBG with supplemental Schedules to be delivered by I BHC pursuant to this Agreement reflecting any material changes thereto between the date of this Agreement and the Closing Date.
Section 5.16 Voting Agreement . I BHC shall execute and deliver, and shall use its best efforts to cause each of the persons set forth on Schedule 5.16A to execute and deliver simultaneously with the execution of this Agreement and each of the persons set forth on Schedule 5.16B to execute and deliver within 10 calendar days of the date of this Agreement, the Voting Agreement in the form attached hereto as Exhibit C, and I BHC acknowledges that, upon the execution and delivery of the Voting Agreement, such persons shall have agreed that they will vote the shares of the I BHC Stock owned by them in favor of this Agreement and the transactions contemplated hereby, including the Merger, subject to required regulatory approvals.
Section 5.17 Releases . I BHC shall use its commercially reasonable best efforts to obtain from each of the directors and officers of I BHC and I Bank a written release executed by such director or officer and dated the Closing Date, releasing I BHC and I Bank from claims arising prior to the Effective Time (the Releases ).
Section 5.18 Other Agreements. I BHC will, as soon as practicable after the execution of this Agreement, enter into the Merger Agreement with Newco, and shall perform all of its obligations thereunder. I BHC shall, and shall cause I Bank to, execute and deliver the Merger Agreement, the Bank Merger Agreement and such other agreements, certificates of merger, certificates, and other documents reasonably necessary to effect and evidence the Merger and the Bank Merger, and to take all actions necessary or required to consummate the transactions contemplated thereby.
Section 5.19 Support Agreement . I BHC shall use its commercially reasonable best efforts to obtain from each non officer director of I BHC and I Bank a Support Agreement executed by such directors as of the Closing Date which will include non competition covenants for a period of two years covering Travis and Williamson Counties, Texas (the Support Agreements ).
Section 5.20 Shareholder Lists . After the date of this Agreement, I BHC shall from time to time make available to IBG, upon its request, a list of the I BHC shareholders and their addresses, a list showing all transfers of the I BHC Stock and such other information as IBG may reasonably request regarding both the ownership and prior transfers of the I BHC Stock.
Section 5.21 Shareholders Meeting . The I BHC Board shall duly call, give notice of, and cause to be held prior to March 12, 2012 a meeting of its shareholders (the Shareholder Meeting ) and will direct that this Agreement and the transactions contemplated hereby be submitted to a vote at the Shareholder Meeting. Specifically, the I BHC Board will present for the consideration of I BHC shareholders a proposal to approve and adopt this Agreement, the Merger, the Merger
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Agreement and the transactions contemplated hereby and thereby. The I BHC Board will (i) cause proper notice of the Shareholder Meeting to be given to the I BHC shareholders in compliance with applicable law and regulations, (ii) prepare and distribute to the I BHC shareholders the Proxy/Information Statement, (iii) recommend by the affirmative vote of the I BHC Board a vote in favor of approval of the proposals set forth in this Section 5.21, and (iv) perform such other acts as may reasonably be requested by IBG to ensure that shareholder approval of the proposals set forth in this Section 5.21 are obtained. I BHC will provide IBG a draft of the Proxy/Information Statement prior to distribution to I BHC shareholders and incorporate the reasonable comments of IBG into the Proxy/Information Statement.
Section 5.22 Conforming Accounting Adjustments . I BHC shall, if requested in writing by IBG, consistent with GAAP, immediately prior to Closing, make such accounting entries as IBG may reasonably request in order to conform the accounting records of I BHC to the accounting policies and practices of IBG. No such adjustment by I BHC or I Bank shall of itself constitute or be deemed to be a breach, violation or failure by I BHC or I Bank to satisfy any representation, warranty, covenant, condition or other provision or constitute grounds for termination of this Agreement by IBG or be an acknowledgment by I BHC of any adverse circumstances for purposes of determining whether the conditions to IBGs obligations under this Agreement have been satisfied.
Section 5.23 Cancellation of Options . I BHC shall use its commercially reasonable best efforts to cause each holder of I BHC Options, as set forth in Schedule 3.01(B) , to execute and deliver to IBG, simultaneously with the execution of this Agreement, an Option Holder Agreement in the form attached as Exhibit B (the Option Holder Agreement), pursuant to which such holders agree that their respective I BHC Options will be cancelled in consideration of the payment of the Option Holder Consideration.
Section 5.24 D & O Liability Insurance . Contemporaneously with the Closing, I BHC and I Bank shall purchase an extended reporting period for 3 years under I BHCs existing directors and officers liability insurance policy, on terms approved by IBG, for purposes of covering actions occurring prior to the Effective Time. Notwithstanding any other provision of this Agreement, the premiums for such coverage shall be paid by I Bank.
Section 5.25 Employment Agreement . I BHC shall use its commercially reasonable best efforts to cause Denny Buchanan to execute and deliver to IBG, simultaneously with the execution of this Agreement, an employment agreement providing for his continued employment with Independent Bank following the Merger (the Employment Agreement).
ARTICLE VI
COVENANTS OF IBG
IBG hereby makes the covenants set forth in this Article VI to I BHC.
Section 6.01 Commercially Reasonable Efforts . IBG agrees to use commercially reasonable best efforts to cause the consummation of the transactions contemplated hereby in accordance with the terms and conditions of this Agreement.
Section 6.02 Untrue Representations . IBG shall promptly notify I BHC in writing if IBG becomes aware of any fact or condition that makes untrue, or shows to have been untrue, in any material respect, any schedule or any other information furnished to I BHC or any representation or warranty made in or pursuant to this Agreement or that results in IBGs failure to comply with any covenant, condition or agreement contained in this Agreement.
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Section 6.03 Litigation and Claims . IBG shall promptly notify I BHC in writing of any legal action, suit or proceeding or judicial, administrative or governmental investigation, pending or, to the knowledge of IBG, threatened against IBG or Independent Bank that (i) questions or could reasonably be expected to question the validity of this Agreement or the agreements contemplated hereby or any actions taken or to be taken by IBG with respect hereto or thereto or (ii) seeks to enjoin or otherwise restrain the transactions contemplated hereby or thereby.
Section 6.04 Regulatory and Other Approvals . With the cooperation of I BHC, IBG shall promptly file or cause to be filed applications for all regulatory approvals required to be obtained by IBG, I Bank and Newco in connection with this Agreement and the transactions contemplated hereby, including to the necessary applications for the prior approval of the Merger by the Federal Reserve (or appropriate Federal Reserve Bank acting on delegated authority), the Texas Department of Banking and the FDIC. Such applications shall be filed by January 31, 2012. IBG shall use commercially reasonable best efforts to obtain all such regulatory approvals and any other approvals from third parties at the earliest practicable time. IBG shall keep I BHC reasonably informed as to the status of such applications and filings, and IBG shall promptly furnish I BHC and its counsel with copies of all such regulatory filings and all correspondence for which confidential treatment has not been requested.
Section 6.05 Formation and Organization of Newco and Other Agreements. IBG will duly form and organize Newco as a Texas corporation. IBG will, as soon as practicable after the execution of this Agreement, cause Newco to enter into the Merger Agreement with I BHC, and to perform all of its obligations thereunder. IBG shall, and shall cause Independent Bank and Newco to, take such actions and to execute and deliver the Merger Agreement, the Bank Merger Agreement, the Subsequent Merger Agreement, and such other agreements, certificates of merger, certificates, and other documents reasonably necessary to effect and evidence the Merger, the Bank Merger and the Subsequent Merger, and to take any and all actions necessary or required to consummate the transactions contemplated thereby.
Section 6.06 Employee Matters . On the Closing Date, IBG may, but shall not be required to, cause Independent Bank to offer employment to the employees of I Bank. Each of the employees of I Bank who become an employee of Independent Bank after the Effective Time shall be entitled to receive, from and after the Effective Time, the same pension, profit sharing, health, welfare, incentive, vacation and other benefits as are customarily offered or afforded to the employees of Independent Bank. Each of the employees of I Bank who becomes an employee of Independent Bank after the Effective Time shall receive credit for their prior service at I Bank for purposes of vesting, eligibility or any other purpose under the employee benefit plans of Independent Bank; and such persons shall not have lack of coverage for pre-existing conditions or be subject to any additional deductibles or waiting periods otherwise required for health insurance coverage. IBG shall, within 30 calendar days of the date of this Agreement, provide I BHC with a list of employees of I Bank to whom Independent Bank will not offer employment.
Section 6.07 Adverse Changes . IBG shall promptly notify I BHC in writing if any change shall have occurred or been threatened (or any development shall have occurred or been threatened involving a prospective change) in the business, financial condition, or operations of IBG and/or Independent Bank that has or may reasonably be expected to have to result in a Material Adverse Change or lead to a failure to obtain necessary regulatory approval of this transaction.
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Section 6.08 Director and Officer Indemnification. For a period of three (3) years after the Effective Time of the Merger, IBG shall indemnify, defend and hold harmless each person entitled to indemnification from I BHC and I Bank (each, an Indemnified Party) against all liabilities arising out of actions or omissions occurring at or prior to the Effective Time of the Merger (including, without limitation, the transactions contemplated by this Agreement) to the same extent and subject to the conditions set forth in the certificate of formation and bylaws of I BHC and the articles of association and bylaws of I Bank, in each case as in effect on the date hereof.
ARTICLE VII
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF I BHC
The obligations of I BHC under this Agreement are subject to the satisfaction, prior to or at the Closing, of each of the following conditions, which may be waived in whole or in part by I BHC:
Section 7.01 Representations and Warranties . All representations and warranties made by IBG in this Agreement or in any document or schedule delivered to I BHC in connection with this Agreement shall have been true and correct when made and shall be true and correct in all material respects as of the Closing with the same force and effect as if such representations and warranties were made at and as of the Closing, except with respect to those representations and warranties specifically made as of an earlier date (in which case such representations and warranties shall be true and correct as of such earlier date).
Section 7.02 Performance of Obligations. IBG shall have, or shall have caused to be, performed or complied with, in all material respects, all agreements, terms, covenants and conditions required by this Agreement to be performed or complied with by IBG at or prior to the Closing.
Section 7.03 Government and Other Approvals . IBG shall have received approval by such Governmental Authorities as may be required by applicable law of the transactions contemplated by this Agreement, the Merger Agreement and the Subsequent Merger Agreement, and all applicable waiting periods prescribed by applicable law or regulation shall have expired. Such approvals and the transactions contemplated hereby shall not have been contested or threatened to be contested by any Governmental Authority or by any other third party (except shareholders asserting statutory dissenters appraisal rights) by formal proceedings.
Section 7.04 No Litigation . No action shall have been taken, and no statute, rule, regulation or order shall have been promulgated, enacted, entered, enforced or deemed applicable to this Agreement, the Merger Agreement, the Bank Merger Agreement, the Subsequent Merger Agreement or the transactions contemplated hereby or thereby by any Governmental Authority, including by means of the entry of a preliminary or permanent injunction, that would (A) make this Agreement or any other agreement contemplated hereby or thereby, or the transactions contemplated hereby or thereby, illegal, invalid or unenforceable, (B) impose material limits on the ability of any party to this Agreement to consummate this Agreement or any other agreement contemplated hereby, or the transactions contemplated hereby or thereby, or (C) if the consummation of this Agreement or any other agreement contemplated hereby, or the transactions contemplated hereby or thereby,
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subject or could reasonably be expected to subject I BHC or I Bank, or any of their respective officers, directors, shareholders or employees, to criminal or civil liability. No action or proceeding by or before any Governmental Authority or by any other person shall be threatened, instituted or pending that could reasonably be expected to result in any of the consequences referred to in clauses (A) through (C) above.
Section 7.05 Delivery of Closing Documents and Aggregate Consideration . I BHC shall have received all documents required to be delivered by IBG, Independent Bank and Newco on or prior to the Closing Date as set forth in Section 2.03, all in form and substance reasonably satisfactory to I BHC. IBG shall have complied with the procedures set forth in Section 1.08 regarding the delivery of the Aggregate Consideration, the Additional Aggregate Consideration, and the additional consideration to be paid under Section 1.05 E relating to the Sheshunoff fee.
Section 7.06 Shareholder Approvals . This Agreement, the Merger, the Merger Agreement and the Aggregate Consideration (as set forth in Section 1.05) shall have been approved by the affirmative vote of the holders of the percentage of the outstanding shares of I BHC Stock required for approval of this Agreement, the Merger, the Merger Agreement and the Aggregate Consideration in accordance with the Certificate of Formation of I BHC and the TBOC.
ARTICLE VIII
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF IBG
The obligations of IBG under this Agreement are subject to the satisfaction, prior to or at the Closing, of each of the following conditions, which may be waived in whole or in part by IBG.
Section 8.01 Representations and Warranties . All representations and warranties made by I BHC in this Agreement or in any schedule delivered to IBG pursuant hereto shall have been true and correct when made and shall be true and correct in all material respects as of the Closing with the same force and effect as if such representations and warranties were made at and as of the Closing, except with respect to those representations and warranties specifically made as of an earlier date (in which case such representations and warranties shall be true as of such earlier date) or changes or updates contemplated by this Agreement.
Section 8.02 Performance of Obligations. I BHC shall have performed or complied with, in all material respects, all agreements, terms, covenants and conditions required by this Agreement to be performed or complied with by I BHC prior to or at the Closing.
Section 8.03 Delivery of Closing Documents . IBG shall have received all documents required to be delivered by I BHC on or prior to the Closing Date as set forth in Section 2.02, all in form and substance reasonably satisfactory to IBG. The shareholders of I BHC shall have complied with the procedures set forth in Section 1.08 regarding the surrender of the Certificates.
Section 8.04 Government and Other Approvals . IBG shall have received approvals and consents, on terms and conditions reasonably acceptable to IBG, as may be required (A) by applicable law from all applicable Governmental Authorities, including the Federal Reserve, the Federal Deposit Insurance Corporation ( FDIC ) and the Texas Department of Banking, and (B) from all third parties, in each case, in connection with this Agreement and any other agreement contemplated hereby, and with the consummation of the transactions contemplated hereby and thereby, and all applicable waiting periods shall have expired. Such approvals and consents shall not
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have imposed, in the reasonable judgment of IBG, any material requirement upon IBG or the IBG Subsidiaries, including any requirement that IBG sell or dispose of any significant amount of its assets or any IBG Subsidiary. Neither such approvals or consents, nor any of the transactions contemplated hereby, shall have been contested or threatened to be contested by any Governmental Authority or by any other third party (except shareholders asserting statutory dissenters appraisal rights) by formal proceedings. It is understood that, if such contest is brought by formal proceedings, IBG may, but shall not be obligated to, answer and defend such contest or otherwise pursue this transaction over such objection.
Section 8.05 No Litigation . No action shall have been taken, and no statute, rule, regulation or order shall have been promulgated, enacted, entered, enforced or deemed applicable to this Agreement, the Merger Agreement, the Bank Merger Agreement or the Subsequent Merger Agreement, or the transactions contemplated hereby or thereby, by any Governmental Authority, including by means of the entry of a preliminary or permanent injunction, that would (A) make this Agreement or any other agreement contemplated hereby, or the transactions contemplated hereby or thereby, illegal, invalid or unenforceable, (B) require the divestiture of a material portion of the assets of I BHC, (C) impose material limits on the ability of any party to this Agreement to consummate the Agreement or any other agreement contemplated hereby, or the transactions contemplated hereby or thereby, (D) otherwise result in a Material Adverse Change, or (E) if the consummation of this Agreement or any other agreement contemplated hereby, or the transactions contemplated hereby or thereby, subject or could reasonably be expected to subject IBG or any IBG Subsidiaries, or any officer, director, shareholder or employee of IBG or any IBG Subsidiaries, to criminal or civil liability. No action or proceeding by or before any Governmental Authority or by any other person shall be threatened, instituted or pending that would reasonably be expected to result in any of the consequences referred to in clauses (A) through (E) above.
Section 8.06 No Material Adverse Change . There shall have been no Material Adverse Change in I BHC or I Bank since September 30, 2011.
Section 8.07 Minimum Capital and ALLL . As of the Closing Date, the sum of Total Equity Capital of I Bank (calculated in accordance with Call Report instructions) plus the Allowance for Loan and Lease Losses of I Bank (calculated in accordance with Call Report instructions) shall be at least $24,050,000. As of the Closing Date, the Tier 1 Capital of I Bank shall be at least $21,300,000. As of the Closing Date, the Allowance for Loan and Lease Losses of I Bank shall be at least $2,350,000.
Section 8.08 Shareholder Approvals . The holders of at least the minimum number of shares of the I BHC Stock necessary under applicable law to approve this Agreement, the Merger, the Merger Agreement, and all other agreements contemplated hereby, shall have approved this Agreement, the Merger, the Merger Agreement, and all other agreements contemplated hereby, and the holders of no more than five percent of the shares of I BHC Stock shall have exercised their statutory dissenters rights under the TBOC.
Section 8.09 Termination of Plans, Obligations and Agreements . All Employee Plans shall have been terminated in accordance with the respective terms of such Employee Plans, the Code, ERISA and all other applicable laws and regulations and the affected participants shall have been notified of such terminations. All of the I BHC Stock Obligations shall have been terminated. All Shareholder Agreement Obligations and all Exchange Obligations shall have been terminated, satisfied, or discharged. I BHC shall have received all of the I Bank stock certificates listed in Schedule 3.04.
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Section 8.10 Continued Effect . The Option Holder Agreements and the Employment Agreement delivered to IBG in connection with the execution of this Agreement shall be in full force and effect on and as of the Closing Date.
Section 8.11 Releases, Support Agreements, and Resignations . IBG shall have received executed Releases and Support Agreements as provided in Sections 5.17 and 5.19, respectively, and the resignations of each of the directors of I BHC and I Bank, effective as of the Closing Date.
ARTICLE IX
TERMINATION AND ABANDONMENT
Section 9.01 Right of Termination . This Agreement and the transactions contemplated hereby may be terminated at any time prior to the Effective Time (except as otherwise set forth in this Section 9.01), whether before or after approval by the I BHC shareholders as follows, and in no other manner:
A. By the mutual written consent of I BHC and IBG, duly authorized by the I BHC Board and the IBG Board, respectively.
B. By either I BHC or IBG (provided that the terminating party is not in material breach of any representation, warranty, covenant or other agreement contained herein) if the conditions precedent to such partys obligations to close specified in ARTICLES VII and VIII, respectively, shall not have been satisfied on or before June 30, 2012.
C. By either IBG or I BHC if any of the transactions contemplated by this Agreement or any other agreement contemplated hereby are disapproved by any Regulatory Agency whose approval is required to consummate such transactions or if any Governmental Authority shall have issued an order, decree or ruling or taken any other action restraining, enjoining, invalidating or otherwise prohibiting this Agreement or any other agreement contemplated hereby, or the transactions contemplated hereby or thereby and such order, decree, ruling or other action shall have been final and nonappealable.
D. By IBG if it reasonably determines, in good faith and after consulting with counsel, there is substantial likelihood that any necessary regulatory approval will not be obtained or will be obtained only upon a condition or conditions that make it inadvisable to proceed with the transactions contemplated by this Agreement or any other agreement contemplated hereby.
E. By IBG if there shall have been any Material Adverse Change in I BHC or I Bank.
F. By IBG, if I BHC shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement or any other agreement contemplated hereby, and such failure shall not have been cured within a period of thirty (30) calendar days after written notice from IBG.
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G By I BHC, if IBG shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement or any other agreement contemplated hereby, and such failure shall not have been cured within a period of thirty (30) calendar days after written notice from I BHC.
H. By IBG, in accordance with the provisions of Section 5.13.
I. By either IBG or I BHC, if the approval of this Agreement, the Merger and the Aggregate Consideration by the shareholders of I BHC shall not have been obtained by reason of the failure to obtain the required vote at the Shareholder Meeting.
J. By I BHC, if prior to the Effective Time, I BHC shall have received a bona fide Acquisition Proposal (as defined in Section 9.04(C)) and the I BHC Board of Directors determines in its good faith judgment and in the exercise of its fiduciary duties, based as to legal matters on the written advice of independent legal counsel and as to financial matters on the written advice of an investment banking firm of national reputation, that such alternative Acquisition Proposal (if consummated pursuant to its terms) is a Superior Proposal (as defined in Section 9.04(D)) and that the failure to terminate this Agreement and accept such Superior Proposal would be inconsistent with the proper exercise of such fiduciary duties; provided, however, that termination under this Section 9.01(J) shall not be deemed effective until payment of the Termination Fee required by Section 9.04 of this Agreement.
K. By IBG, if the I BHC Board of Directors shall have (i) resolved to accept an Acquisition Proposal, (ii) recommended to the shareholders of I BHC that they tender their shares in a tender or exchange offer commenced by a third party, or (iii) withdrawn or modified, in any manner that is adverse to IBG, its recommendation or approval of this Agreement, the Merger, or the Aggregate Consideration, or recommended to the I BHC shareholders acceptance or approval of any alternative Acquisition Proposal, or shall have resolved to do the foregoing; provided, however, that termination under this Section 9.01(K) shall not be deemed effective until payment of the Termination Fee required by Section 9.04 of this Agreement.
Section 9.02 Notice of Termination . The power of termination provided for by Section 9.01 may be exercised only by a notice given in writing, as provided in Section 11.07.
Section 9.03 Effect of Termination . In the event of the termination and abandonment of this Agreement pursuant to the provisions of Sections 9.01A, 9.01B, 9.01C, 9.01D, 9.01E, or 9.01H, no party to this Agreement shall have any further liability or obligation in respect of this Agreement, except that the provisions of ARTICLE X, this Section 9.03, Section 11.01 and Section 11.02 shall survive any termination and abandonment of the Agreement. In the event of the termination of this Agreement pursuant to the provisions of Sections 9.01F or 9.01G, the non breaching party shall be entitled to all remedies available to it at law or in equity.
Section 9.04 I BHC Termination Fee . To compensate IBG for entering into this Agreement, taking actions to consummate the transactions contemplated hereunder and incurring the costs and expenses related thereto and other losses and expenses, including foregoing the pursuit of other opportunities, I BHC and IBG agree as follows:
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A. Provided that IBG shall not be in material breach of any covenant or obligation under this Agreement (which breach has not been cured promptly following receipt of written notice thereof by I BHC specifying in reasonable detail the basis of such alleged breach), I BHC shall pay to IBG the sum of $1,500,000 (the Termination Fee) if this Agreement is terminated (i) by I BHC under the provisions of Section 9.01(J), (ii) by either IBG or I BHC under the provisions of Section 9.01(I), if at the time of any failure by the shareholders of I BHC to approve and adopt this Agreement and the Merger there shall exist an Acquisition Proposal with respect to I BHC and, within twelve months of the termination of this Agreement, I BHC enters into a definitive agreement with any third party with respect to any Acquisition Proposal, or (iii) by IBG under the provisions of Section 9.01(K). I BHCs obligation to pay the Termination Fee pursuant to this Section 9.04(A) shall survive the termination of this Agreement.
B. Any payment required by Section 9.04(A) shall become payable within ten (10) business days after receipt by the non-terminating party of written notice of termination of this Agreement.
C. For purposes of this Agreement, Acquisition Proposal means a written offer or proposal which contains a fixed price per share or a mathematically ascertainable formula for calculating a price per share for the I BHC Stock regarding any of the following (other than the transactions contemplated by this Agreement) involving I BHC or I Bank: (i) any merger, reorganization, consolidation, share exchange, recapitalization, business combination, liquidation, dissolution or other similar transaction involving any sale, lease, exchange, mortgage, pledge, transfer or other disposition of all or substantially all of the assets or equity securities or deposits of, I BHC or I Bank, in a single transaction or series of related transactions which could reasonably be expected to impede, interfere with, prevent or materially delay the completion of the Merger; (ii) any tender offer or exchange offer for 50% or more of the outstanding shares of capital stock of I BHC or the filing of a registration statement in connection therewith; or (iii) any public announcement of a proposal, plan or intention to do any of the foregoing or any agreement to engage in any of the foregoing.
D. For purposes of this Agreement, Superior Proposal means a bona fide Acquisition Proposal made by a third person that the Board of Directors of I BHC determines in its good faith judgment to be more favorable to I BHCs shareholders than the Merger (taking into account, in good faith, the written opinion, with only customary qualifications, of I BHCs independent financial advisor that the value of the consideration to I BHCs shareholders provided for in such proposal exceeds the value of the consideration to I BHCs shareholders provided for in the Merger) and for which financing, to the extent required, is then committed or which, in the good faith judgment of the Board of Directors of I BHC (taking into account, in good faith, the written advice of I BHCs independent financial advisor), is reasonably capable of being obtained by such third person.
ARTICLE X
CONFIDENTIAL INFORMATION
Section 10.01 Definition of Recipient, Disclosing Party and Representative . For purposes of this Article X, the term Recipient shall mean the party receiving the Subject Information (as such term is defined in Section 10.02) and the term Disclosing Party shall mean the party furnishing the Subject Information. The terms Recipient or Disclosing Party , as used herein, include: (A) all persons and entities related to or affiliated in any way with the Recipient or
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the Disclosing Party, as the case may be, and (B) any Affiliate the Recipient or the Disclosing Party, as the case may be. The term Representative , as used herein, shall include all directors, officers, shareholders, employees, representatives, advisors, attorneys, accountants and agents of the Recipient or the Disclosing Party, as the case may be. The term person as used in this Article X shall be broadly interpreted to include, without limitation, any corporation, company, group, partnership, Governmental Authority or individual.
Section 10.02 Definition of Subject Information . For purposes of this Article X, the term Subject Information shall mean all information furnished to the Recipient or its Representatives (whether prepared by the Disclosing Party, its Representatives or otherwise and whether or not identified as being non public, confidential or proprietary) by or on behalf of the Disclosing Party or its Representatives relating to or involving the business, operations or affairs of the Disclosing Party or otherwise in possession of the Disclosing Party. The term Subject Information shall not include information that (A) was already in the Recipients possession at the time it was first furnished to Recipient by or on behalf of Disclosing Party, provided that such information is not known by the Recipient to be subject to another confidentiality agreement with or other obligation of secrecy to the Disclosing Party, its Subsidiaries or another party, or (B) becomes generally available to the public other than as a result of a disclosure by the Recipient or its Representatives, or (C) becomes available to the Recipient on a non-confidential basis from a source other than the Disclosing Party, its Representative or otherwise, provided that such source is not known by the Recipient to be bound by a confidentiality agreement with or other obligation of secrecy to the Disclosing Party, its Representative or another party.
Section 10.03 Confidentiality . Each Recipient hereby agrees that the Subject Information will be used solely for the purpose of reviewing and evaluating the transactions contemplated by this Agreement and any other agreement contemplated hereby, and that the Subject Information will be kept confidential by the Recipient and the Recipients Representatives; provided, however , that (A) any of such Subject Information may be disclosed to the Recipients Representatives (including the Recipients accountants, attorneys and investment bankers) who need to know such Subject Information for the purpose of evaluating any such possible transaction between the Disclosing Party and the Recipient (it being understood that such Representatives shall be informed by the Recipient of the confidential nature of such Subject Information and that the Recipient shall direct and cause such persons to treat such Subject Information confidentially); (B) any of such Subject Information may be disclosed by a Recipient who has been ordered by a court to do so or is required by law to do so provided Recipient has notified the Disclosing Party prior to such disclosure and cooperates with the Disclosing Party if the Disclosing Party elects to pursue legal means to contest and avoid the disclosure; and (C) any disclosure of such Subject Information may be made to which the Disclosing Party expressly consents in writing prior to any such disclosure by Recipient. Each Recipient hereby agrees that it will not use the Subject Information to solicit customers from the Disclosing Party.
Section 10.04 Securities Law Concerns . Each Recipient hereby acknowledges that the Recipient is aware, and the Recipient will advise the Recipients Representatives who are informed as to the matters that are the subject of this Agreement, that the United States securities laws prohibit any person who has received material, non-public information from an issuer of securities from purchasing or selling securities of such issuer or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.
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Section 10.05 Return of Subject Information . In the event of termination of this Agreement, for any reason, the Recipient shall promptly return to the Disclosing Party all written material containing or reflecting any of the Subject Information, other than information contained in any application, notice or other document filed with any Governmental Authority and not returned to the Recipient by such Governmental Authority. In making any such filing, the Recipient will request confidential treatment of such Subject Information included in any application, notice or other document filed with any Governmental Authority.
ARTICLE XI
MISCELLANEOUS
Section 11.01 No Survival of Representations and Warranties . The parties hereto agree that all of the representations, warranties and covenants contained in this Agreement shall terminate and be extinguished at Closing, except for those covenants that specifically require performance after the Closing. Nothing in this Section 11.01 shall limit or otherwise affect the remedies available to IBG and I BHC with respect to a cause of action arising out of an intentional misrepresentation against the person who made such intentional misrepresentation.
Section 11.02 Expenses . Except as specifically provided in this Agreement, all costs and expenses incurred in connection with this Agreement and all agreements and documents contemplated hereby, and the consummation of the transactions contemplated hereby and thereby, shall be borne and paid by the party incurring such costs or expenses.
Section 11.03 Brokerage Fees and Commissions . IBG hereby represents to I BHC that no agent, representative or broker has represented IBG or Independent Bank in connection with the transactions described in this Agreement. I BHC shall not have any responsibility or liability for any fees, expenses or commissions payable to any agent, representative or broker of IBG or Independent Bank, and IBG hereby agrees to indemnify and hold harmless I BHC for any amounts owed to any agent, representative or broker of IBG or Independent Bank. I BHC hereby represents to IBG that except for an agreement for consulting services with Sheshunoff, a true and correct copy of which, as modified, is included in Schedule 11.03 , no agent, representative or broker has represented I BHC or I Bank in connection with the transactions described in this Agreement. On the Closing Date, I BHC shall use the consideration to be paid under Section 1.05 E to fully and finally discharge the Sheshunoff Obligation. IBG shall have no responsibility or liability for any other fees, expenses or commissions payable to any agent, representative or broker of I BHC or I Bank and I BHC hereby agrees to indemnify and hold harmless IBG for any amounts owed to any other agent, representative or broker of I BHC or I Bank.
Section 11.04 Entire Agreement . This Agreement (including the documents and instruments referred to herein) and the other agreements, documents, schedules and instruments executed and delivered by the parties to each other at the Closing constitute the full understanding of the parties, a complete allocation of risks between them and a complete and exclusive statement of the terms and conditions of their agreement relating to the subject matter hereof, and supersede any and all prior agreements, whether written or oral, that may exist between the parties with respect thereto. Except as otherwise specifically provided in this Agreement, no conditions, usage of trade, course of dealing or performance, understanding or agreement purporting to modify, vary, explain or supplement the terms or conditions of this Agreement shall be binding unless hereafter or contemporaneously herewith made in writing and signed by the party to be bound, and no modification shall be effected by the acknowledgment or acceptance of documents containing terms or conditions at variance with or in addition to those set forth in this Agreement.
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Section 11.05 Further Cooperation . The parties agree that they will, at any time and from time to time after the Closing, upon request by the other and without further consideration, do, perform, execute, acknowledge and deliver all such further acts, deeds, assignments, assumptions, transfers, conveyances, powers of attorney, certificates and assurances as may be reasonably required in order to fully consummate the transactions contemplated hereby in accordance with this Agreement or to carry out and perform any undertaking made by the parties hereunder.
Section 11.06 Severability . If any term or other provision of this Agreement is held to be illegal, invalid or unenforceable by any rule of law or public policy, such term or provision shall be fully severable and this Agreement shall be construed and enforced as if such illegal, invalid or unenforceable provision were not a part hereof, and all other conditions and provisions of this Agreement shall remain in full force and effect. Upon such determination that any term or other provision is invalid, illegal or unenforceable, there shall be added automatically as a part of this Agreement a provision as similar in terms to such illegal, invalid or unenforceable provision as may be possible and still be legal, valid and enforceable. If any provision of this Agreement is so broad as to be unenforceable, the provision shall be interpreted to be only as broad as is enforceable.
Section 11.07 Notices . All payments (other than payments at the Closing), notices, requests, claims, demands, instructions and other communications required or permitted to be given under this Agreement after the date hereof by any party hereto to any other party shall be in writing; and may be delivered personally, by nationally-recognized overnight courier service, by United States mail, or by e-mail or facsimile transmission, to such party at the address or transmission numbers set forth below:
A. If given to I BHC, or to an officer thereof, in such officers official capacity, at I BHCs mailing address or transmission number set forth below (or such address or transmission number as I BHC may give notice to IBG by like notice):
Mr. David McCaskill
Chairman of the Board
I Bank Holding Company, Inc.
I Bank, SSB
3209 Ranch Road 620 South
Austin, Texas 78738
Email: dmccaskill@tmf-fdn.org
with a copy (which shall not constitute notice) to:
John C. Fleming, Esq.
Hays & Owens LLP
807 Brazos Street, Suite 500
Austin, TX 78701
Facsimile: 512-472-3883
Email: john.fleming@haysowens.com
43
B. If given to IBG, or to an officer thereof, in such officers official capacity, at IBGs mailing address or transmission number set forth below (or such address or transmission number as IBG may give notice to I BHC by like notice):
Mr. David Brooks
Independent Bank Group, Inc.
1600 Redbud Blvd., Suite 400
McKinney, TX 75069
Facsimile: 972-562-5496
Email: drbrooks@independent-bank.com
with a copy (which shall not constitute notice) to:
Mark Haynie, Esq.
Haynie Rake & Repass, P.C.
14651 Dallas Parkway, Suite 136
Dallas, Texas 75254
Facsimile: (972) 716-1850
Email: mark@hrrpc.com
Any notice given pursuant to this Agreement shall be effective (i) in the case of personal delivery, e-mail or facsimile transmission, when received; (ii) in the case of mail, upon the earlier of actual receipt or three (3) business days after deposit with the United States Postal Service, first class certified or registered mail, postage prepaid, return receipt requested; and (iii) in the case of nationally-recognized overnight courier service, one (1) business day after delivery to the courier service together with all appropriate fees or charges and instructions for overnight delivery.
Section 11.08 GOVERNING LAW; VENUE . THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF EACH OF THE PARTIES SUBJECT TO THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS WITHOUT REGARD TO THE LAWS THAT MIGHT OTHERWISE GOVERN UNDER APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS. IN THE EVENT OF A DISPUTE ARISING UNDER OR RELATED TO THIS AGREEMENT, THE PARTIES IRREVOCABLY AGREE THAT VENUE FOR SUCH DISPUTE SHALL LIE EXCLUSIVELY IN ANY COURT OF COMPETENT JURISDICTION IN TRAVIS COUNTY, TEXAS.
Section 11.09 Multiple Counterparts; Electronic Transmission . For the convenience of the parties hereto, this Agreement may be executed in one or more counterparts, each of which shall be deemed an original, and all counterparts hereof so executed by the parties hereto, whether or not such counterpart shall bear the execution of each of the parties hereto, shall be deemed to be, and shall be construed as, one and the same Agreement. An e-mail, facsimile or other electronic transmission of a signed counterpart of this Agreement shall be sufficient to bind the party or parties whose signature(s) appear thereon.
44
Section 11.10 Certain Definitions .
A. Affiliate means any business entity, bank, or person that, directly or indirectly, controls, is controlled by, or is under common control with, such person in question. For the purposes of this definition, control (including, with correlative meaning, the terms controlled by and under common control with) as used with respect to any business entity, bank, or person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such person, whether through the ownership of voting securities or by contract or otherwise.
B. Best Knowledge means the actual knowledge of executive officers of I BHC or I Bank, as applicable, with respect to a particular matter, after reasonable inquiry.
C. Environmental Laws means the common law and all federal, state, local and foreign laws or regulations, codes, orders, decrees, judgments or injunctions issued, promulgated, approved or entered thereunder, now or hereafter in effect, relating to pollution or protection of public or employee health or safety or the environment, including laws relating to (i) emissions, discharges, releases or threatened releases of Hazardous Materials, into the environment (including ambient air, indoor air, surface water, ground water, land surface or subsurface strata), (ii) the manufacture, processing, distribution, use, generation, treatment, storage, disposal, transport or handling of Hazardous Materials, and (iii) underground and above ground storage tanks, and related piping, and emissions, discharges, releases or threatened releases therefrom.
D. Governmental Authority means any United States or foreign federal, state or local court, administrative agency, commission or other governmental authority, Regulatory Agency or instrumentality thereof, in each case, of competent jurisdiction.
E. Hazardous Material means any pollutant, contaminant, chemical, or toxic or hazardous substance, constituent, material or waste, or any other chemical, substances, constituent or waste including petroleum, including crude oil or any fraction thereof, or any petroleum product, but does not include normal quantities of any chemical used in the ordinary course of business as office or cleaning supplies.
F. Investment Securities means a security held by I Bank and reflected as an asset of I Bank in accordance with RAP.
G. Material Adverse Change means any material adverse change in the financial condition, assets, properties, liabilities (absolute, accrued, contingent or otherwise), reserves, business or results of operations of I BHC or I Bank, as applicable, on a consolidated basis that has caused, or is reasonably expected to cause, a decrease in the Total Equity Capital of I Bank of 5 percent or more. A Material Adverse Change shall not include any change, circumstance, event or effect relating to (i) any change occurring after the date hereof in any federal or state law, rule or regulation, which change affects banking institutions and their holding companies generally, including any change affecting the Deposit Insurance Fund administered by the FDIC, (ii) changes in general economic, legal, regulatory or political conditions affecting financial institutions generally, including changes in interest rates, (iii) any action or omission of I BHC or I Bank taken pursuant to the terms of this Agreement or taken or omitted to be taken with the express written permission of IBG, and (iv) any effect with respect to I BHC or IBG caused, in whole or in substantial part, by IBG.
H. Property or Properties means all real property owned or leased by I BHC or I Bank, including to properties that I Bank has foreclosed on as well as their respective premises and all improvements and fixtures thereon.
45
I. Regulatory Agency means (i) the Securities and Exchange Commission, (ii) any self-regulatory organization, (iii) the Board of Governors of the Federal Reserve System, (iv) the Federal Deposit Insurance Corporation, (v) Texas Department of Banking, (vi) the Texas Department of Savings & Mortgage Lending, or (vii) any other federal or state governmental or regulatory agency or authority.
J. Subsidiary means, when used with reference to any entity, any corporation, a majority of the outstanding voting securities of which are owned, directly or indirectly, by such entity or any partnership, joint venture or other enterprise in which such entity has, directly or indirectly, any equity interest.
Section 11.11 Specific Performance . Each of the parties hereto acknowledges that the other party would be irreparably damaged and would not have an adequate remedy at law for money damages in the event that any of the covenants contained in this Agreement were not performed in accordance with its terms or otherwise were materially breached. Each of the parties hereto therefore agrees that, without the necessity of proving actual damages or posting bond or other security, the other party shall be entitled to seek temporary and/or permanent injunction or injunctions to prevent breaches of such performance and to specific enforcement of such covenants in addition to any other remedy to which such other party may be entitled, at law or in equity.
Section 11.12 Attorneys Fees and Costs . In the event attorneys fees or other costs are incurred to secure performance of any of the obligations herein provided for, or to establish damages for the breach thereof, or to obtain any other appropriate relief, whether by way of prosecution or defense, the prevailing party shall be entitled to recover reasonable attorneys fees and costs incurred therein.
Section 11.13 Rules of Construction . When a reference is made in this Agreement to an Article, Section, Exhibit or Schedule, such reference shall be to an Article or Section of, or an Exhibit or Schedule to, this Agreement unless otherwise indicated. The table of contents and headings contained in this Agreement are for convenience of reference only and shall not affect in any way the meaning or interpretation of this Agreement. Whenever the words include, includes or including are used in this Agreement, they shall be deemed to be followed by the words without limitation. The words hereof, herein and hereunder and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision in this Agreement. Each use herein of the masculine, neuter or feminine gender shall be deemed to include the other genders. Each use herein of the plural shall include the singular and vice versa, in each case as the context requires or as is otherwise appropriate. The word or is used in the inclusive sense. Any agreement, instrument or statute defined or referred to herein or in any agreement or instrument that is referred to herein means such agreement, instrument or statute as from time to time amended, modified or supplemented, including (in the case of agreements or instruments) by waiver or consent and (in the case of statutes) by succession of comparable successor statutes and references to all attachments thereto and instruments incorporated therein. References to a person are also to its permitted successors or assigns.
Section 11.14 Binding Effect; Assignment . All of the terms, covenants, representations, warranties and conditions of this Agreement shall be binding upon, and inure to the benefit of and be enforceable by, the parties hereto and their respective heirs, successors, representatives and permitted assigns. Nothing expressed or referred to herein is intended or shall be construed to give any person other than the parties hereto any legal or equitable right, remedy or claim under or in respect of this
46
Agreement, or any provision herein contained, it being the intention of the parties hereto that this Agreement, the assumption of obligations and statements of responsibilities hereunder, and all other conditions and provisions hereof are for the sole benefit of the parties to this Agreement and for the benefit of no other person. Nothing in this Agreement shall act to relieve or discharge the obligation or liability of any third party to any party to this Agreement, nor shall any provision give any third party any right of subrogation or action over or against any party to this Agreement. No party to this Agreement shall assign this Agreement, by operation of law or otherwise, in whole or in part, without the prior written consent of the other party. Any assignment made or attempted in violation of this Section 11.14 shall be void and of no effect.
Section 11.15 Public Disclosure . None of IBG, Independent Bank, I BHC or I Bank will make, issue or release, or cause to be made, issued or released, any announcement, statement, press release, acknowledgment or other public disclosure of the existence, terms, conditions or status of this Agreement or the transactions contemplated hereby without the prior written consent of the other parties to this Agreement. Notwithstanding the foregoing, IBG and I BHC, upon prior notice to the other party, will be permitted to make (i) disclosure to their own officers, directors, employees and shareholders, and (ii) any public disclosures or governmental filings as legal counsel may deem necessary to maintain compliance with or to prevent violations of applicable federal or state laws or regulations or that may be necessary to obtain regulatory approval for the transactions contemplated hereby.
Section 11.16 Extension; Waiver . At any time prior to the Closing Date, the parties hereto, by action taken or authorized by their respective boards of directors, may, to the extent legally allowed, (i) extend the time for the performance of any of the obligations or other acts of the other party hereto, (ii) waive any inaccuracies in the representations and warranties contained herein or in any document, certificate or writing delivered pursuant hereto or (iii) waive compliance with any of the agreements or conditions contained herein. Any agreement on the part of a party hereto to any such extension of waiver shall be valid only if set forth in a written instrument signed on behalf of such party in the manner provided in Section 11.17, but such extension or waiver or failure to insist on strict compliance with an obligation, covenant, agreement or condition shall not operate as a waiver of, or estoppel with respect to, any subsequent or other failure. No party to this Agreement shall by any act (except by a written instrument given pursuant to Section 11.17) be deemed to have waived any right or remedy hereunder or to have acquiesced in any breach of any of the terms and conditions hereof. No failure to exercise, nor any delay in exercising any right, power or privilege hereunder by any party hereto shall operate as a waiver thereof. No single or partial exercise of any right, power or privilege hereunder shall preclude any other or further exercise thereof or the exercise of any other right, power or privilege. A waiver of any party of any right or remedy on any one occasion shall not be construed as a bar to any right or remedy that such party would otherwise have on any future occasion or to any right or remedy that any other party may have hereunder.
Section 11.17 Amendments . This Agreement may be amended by the parties hereto, by action taken or authorized by their respective boards of directors, at any time before or after approval of this Agreement by the I BHC shareholders; provided, however, that after the approval of this Agreement by the I BHC shareholders, there shall not be, without the further approval of the I BHC shareholders, any amendment of this Agreement that decreases the consideration to be paid for the I BHC Stock pursuant to Section 1.05 that materially and adversely affects the rights of the I BHC shareholders hereunder. This Agreement may not be amended except by an instrument in writing signed on behalf of each of the parties hereto.
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[Signature Page To Agreement and Plan of Reorganization]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized officers as of the date first above written.
INDEPENDENT BANK GROUP, INC. | ||
By: | /s/ David R. Brooks | |
David R. Brooks Chairman of the Board |
||
I BANK HOLDING COMPANY, INC. | ||
By: | /s/ David McCaskill | |
David McCaskill Chairman of the Board |
48
Exhibit 10.22
EXECUTION COPY
AGREEMENT AND PLAN OF REORGANIZATION
BY AND BETWEEN
INDEPENDENT BANK GROUP, INC.
MCKINNEY, TEXAS
AND
THE COMMUNITY GROUP, INC.
HIGHLAND VILLAGE, TEXAS
Dated as of July 2, 2012
TABLE OF CONTENTS
Page | ||||||
ARTICLE I ACQUISITION OF CGI BY IBG | 7 | |||||
Section 1.01. | Merger of CGI with and into Newco | 7 | ||||
Section 1.02. | Effects of the Merger | 7 | ||||
Section 1.03. | Certificate of Formation and Bylaws | 7 | ||||
Section 1.04. | Directors and Officers | 7 | ||||
Section 1.05. | Merger Consideration | 7 | ||||
Section 1.06. | Treatment of Newco Stock | 9 | ||||
Section 1.07. | Dissenting Shareholders | 10 | ||||
Section 1.08. | Exchange of Certificates | 10 | ||||
Section 1.09. | Effective Time | 11 | ||||
Section 1.10. | Subsequent Merger | 12 | ||||
ARTICLE II THE CLOSING AND THE CLOSING DATE | 12 | |||||
Section 2.01. | Time and Place of the Closing and Closing Date | 12 | ||||
Section 2.02. | Actions to be Taken at the Closing by CGI | 12 | ||||
Section 2.03. | Actions to be Taken at the Closing by IBG | 14 | ||||
Section 2.04. | Further Assurances | 15 | ||||
ARTICLE III REPRESENTATIONS AND WARRANTIES OF CGI | 15 | |||||
Section 3.01. | Organization and Ownership | 16 | ||||
Section 3.02. | Execution and Delivery | 16 | ||||
Section 3.03. | CGI Capitalization | 16 | ||||
Section 3.04. | UCB | 17 | ||||
Section 3.05. | No Violation | 18 | ||||
Section 3.06. | Compliance with Laws, Permits and Instruments | 18 | ||||
Section 3.07. | Financial Statements | 18 | ||||
Section 3.08. | Litigation | 19 | ||||
Section 3.09. | Consents and Approvals | 19 | ||||
Section 3.10. | Undisclosed Liabilities | 19 | ||||
Section 3.11. | Title to Tangible Assets | 19 | ||||
Section 3.12. | Absence of Certain Changes or Events | 20 | ||||
Section 3.13. | Leases, Contracts and Agreements | 22 | ||||
Section 3.14. | Taxes and Tax Returns | 22 | ||||
Section 3.15. | Insurance | 23 | ||||
Section 3.16. | No Adverse Change | 24 | ||||
Section 3.17. | Proprietary Rights | 24 | ||||
Section 3.18. | Transactions with Certain Persons and Entities | 24 | ||||
Section 3.19. | Evidences of Indebtedness | 24 | ||||
Section 3.20. | Employee Relationships | 25 | ||||
Section 3.21. | Condition of Assets | 25 | ||||
Section 3.22. | Environmental Compliance | 25 | ||||
Section 3.23. | Regulatory Compliance | 26 | ||||
Section 3.24. | Absence of Certain Business Practices | 27 | ||||
Section 3.25. | Books and Records | 27 | ||||
Section 3.26. | Forms of Instruments, Etc | 27 |
ii
Section 3.27. | Fiduciary Responsibilities | 27 | ||||
Section 3.28. | Guaranties | 27 | ||||
Section 3.29. | Employee Benefit Plans | 27 | ||||
Section 3.30. | No Excess Parachute Payments | 29 | ||||
Section 3.31. | Bank Secrecy Act, Foreign Corrupt Practices Act and U.S.A. Patriot Act | 29 | ||||
Section 3.32. | Data Processing Agreements | 30 | ||||
Section 3.33. | Proxy/Information Statement | 30 | ||||
Section 3.34. | Dissenting Shareholders | 30 | ||||
Section 3.35. | Fair Housing Act, Home Mortgage Disclosure Act and Equal Credit Opportunity Act | 30 | ||||
Section 3.36. | Usury Laws and Other Consumer Compliance Laws | 30 | ||||
Section 3.37. | Zoning and Related Laws | 30 | ||||
Section 3.38. | Business Combination | 31 | ||||
Section 3.39. | Organization and Qualification of the Trust | 31 | ||||
Section 3.40. | Representations Not Misleading | 32 | ||||
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF IBG | 32 | |||||
Section 4.01. | Organization and Ownership | 33 | ||||
Section 4.02. | Execution and Delivery | 33 | ||||
Section 4.03. | IBG Capitalization | 34 | ||||
Section 4.04. | Authorized and Outstanding Stock of Newco | 34 | ||||
Section 4.05. | Compliance with Laws, Permits and Instruments | 35 | ||||
Section 4.06. | Consents and Approvals | 35 | ||||
Section 4.07. | Regulatory Approval | 35 | ||||
Section 4.08. | No Violation | 35 | ||||
Section 4.09. | Litigation | 36 | ||||
Section 4.10. | Financial Statements | 36 | ||||
Section 4.11. | Representations Not Misleading | 37 | ||||
ARTICLE V COVENANTS OF CGI | 41 | |||||
Section 5.01. | Commercially Reasonable Efforts | 41 | ||||
Section 5.02. | Information Furnished by CGI | 41 | ||||
Section 5.03. | Affirmative Covenants | 41 | ||||
Section 5.04. | Negative Covenants | 42 | ||||
Section 5.05. | Access; Pre Closing Investigation | 45 | ||||
Section 5.06. | Invitations to and Attendance at Directors and Committee Meetings | 45 | ||||
Section 5.07. | Additional Financial Statements | 46 | ||||
Section 5.08. | Untrue Representations | 46 | ||||
Section 5.09. | Litigation and Claims | 46 | ||||
Section 5.10. | Adverse Changes | 46 | ||||
Section 5.11. | No Negotiation with Others | 46 | ||||
Section 5.12. | Consents and Approvals | 46 | ||||
Section 5.13. | Environmental Investigation; Right to Terminate Agreement | 47 | ||||
Section 5.14. | Employee Plans | 48 | ||||
Section 5.15. | Disclosure Schedules | 48 | ||||
Section 5.16. | Voting Agreement | 48 |
iii
Section 5.17. | Releases | 48 | ||||
Section 5.18. | Other Agreements | 48 | ||||
Section 5.19. | Support Agreement | 49 | ||||
Section 5.20. | Shareholder Lists | 49 | ||||
Section 5.21. | Shareholders Meeting | 49 | ||||
Section 5.22. | Conforming Accounting Adjustments | 49 | ||||
Section 5.23. | Cancellation of CGI Warrants | 49 | ||||
Section 5.24. | D & O Liability Insurance | 50 | ||||
Section 5.25. | Employment Agreement | 50 | ||||
Section 5.26. | Obligations Related to Trust Preferred Securities | 50 | ||||
ARTICLE VI COVENANTS OF IBG | 50 | |||||
Section 6.01. | Commercially Reasonable Efforts | 50 | ||||
Section 6.02. | Untrue Representations | 50 | ||||
Section 6.03. | Litigation and Claims | 50 | ||||
Section 6.04. | Regulatory and Other Approvals | 51 | ||||
Section 6.05. | Formation and Organization of Newco | 51 | ||||
Section 6.06. | Other Agreements | 51 | ||||
Section 6.07. | Employee Matters | 52 | ||||
Section 6.08. | Adverse Changes | 52 | ||||
Section 6.09. | Disclosure Schedules | 52 | ||||
ARTICLE VII CONDITIONS PRECEDENT TO THE OBLIGATIONS OF CGI | 52 | |||||
Section 7.01. | Representations and Warranties | 52 | ||||
Section 7.02. | Performance of Obligations | 52 | ||||
Section 7.03. | Government and Other Approvals | 52 | ||||
Section 7.04. | No Litigation | 53 | ||||
Section 7.05. | Delivery of Closing Documents | 53 | ||||
Section 7.06. | Shareholder Approvals | 53 | ||||
ARTICLE VIII CONDITIONS PRECEDENT TO THE OBLIGATIONS OF IBG | 53 | |||||
Section 8.01. | Representations and Warranties | 53 | ||||
Section 8.02. | Performance of Obligations | 54 | ||||
Section 8.03. | Delivery of Closing Documents | 54 | ||||
Section 8.04. | Government and Other Approvals | 54 | ||||
Section 8.05. | No Litigation | 54 | ||||
Section 8.06. | No Material Adverse Change | 54 | ||||
Section 8.07. | Minimum CGI Tangible Equity and ALLL | 54 | ||||
Section 8.08. | Shareholder Approvals | 55 | ||||
Section 8.09. | Termination of Employee Benefit Plans | 55 | ||||
Section 8.10. | Releases, Support Agreements, and Resignations | 55 | ||||
ARTICLE IX TERMINATION AND ABANDONMENT | 55 | |||||
Section 9.01. | Right of Termination | 55 | ||||
Section 9.02. | Notice of Termination | 56 | ||||
Section 9.03. | Effect of Termination | 56 | ||||
ARTICLE X CONFIDENTIAL INFORMATION | 56 | |||||
Section 10.01. | Definition of Recipient, Disclosing Party and Representative | 56 | ||||
Section 10.02. | Definition of Subject Information | 57 | ||||
Section 10.03. | Confidentiality | 57 |
iv
Section 10.04. | Securities Law Concerns | 57 | ||||
Section 10.05. | Return of Subject Information | 58 | ||||
ARTICLE XI MISCELLANEOUS | 58 | |||||
Section 11.01. | No Survival of Representations and Warranties | 58 | ||||
Section 11.02. | Expenses | 58 | ||||
Section 11.03. | Brokerage Fees and Commissions | 58 | ||||
Section 11.04. | Entire Agreement | 58 | ||||
Section 11.05. | Further Cooperation | 59 | ||||
Section 11.06. | Severability | 59 | ||||
Section 11.07. | Notices | 59 | ||||
Section 11.08. | GOVERNING LAW; VENUE | 60 | ||||
Section 11.09. | Multiple Counterparts; Electronic Transmission | 60 | ||||
Section 11.10. | Certain Definitions | 61 | ||||
Section 11.11. | Specific Performance | 62 | ||||
Section 11.12. | Attorneys Fees and Costs | 62 | ||||
Section 11.13. | Rules of Construction | 62 | ||||
Section 11.14. | Binding Effect; Assignment | 63 | ||||
Section 11.15. | Public Disclosure | 63 | ||||
Section 11.16. | Extension; Waiver | 63 | ||||
Section 11.17. | Amendments | 64 |
EXHIBITS
EXHIBIT A: | Agreement and Plan of Merger | |
EXHIBIT B: | Joinder to Shareholder Agreements | |
EXHIBIT C: | Warrant Holder Agreement | |
EXHIBIT D: | Election Form | |
EXHIBIT E: | Stock Option Termination Agreement | |
EXHIBIT F: | Voting Agreement |
v
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION ( Agreement ) is made and entered into as of the 2 nd day of July, 2012, by and between INDEPENDENT BANK GROUP, INC., a Texas corporation and registered bank holding company with its principal offices in McKinney, Texas ( IBG ), and THE COMMUNITY GROUP, INC., a Texas corporation and registered bank holding company with its principal offices in Highland Village, Texas ( CGI ).
WITNESSETH:
WHEREAS, CGI owns all of the capital stock of United Community Bank, N.A., with its principal offices in Highland Village, Texas ( UCB );
WHEREAS, IBG desires to acquire all of the shares of the CGI common stock (the CGI Stock ), issued and outstanding immediately prior to the Closing Date (as defined in Section 2.01), and all of the warrants to acquire CGI Stock (collectively, the CGI Warrants ) outstanding and unexercised immediately prior to the Closing Date, through the merger (the Merger ) of IBG ACQUISITION CORPORATION, a Texas corporation and wholly owned subsidiary of IBG ( Newco ) with and into CGI, with CGI continuing as the corporation surviving the Merger, pursuant to which holders of CGI Stock and the holders of the CGI Warrants will be entitled to receive cash or shares of common stock of IBG (the IBG Stock) as provided for herein. For purposes of this Agreement, unless otherwise indicated, all references to shares of CGI Stock and CGI Warrants shall mean the shares of CGI Stock that are issued and outstanding, and the CGI Warrants that are outstanding and unexercised, respectively, immediately prior to the Effective Time;
WHEREAS, IBG and CGI believe that the Merger, as provided for and subject to the terms and conditions set forth in this Agreement and all exhibits, schedules and supplements hereto, is in the best interests of IBG and CGI and their respective shareholders;
WHEREAS, subsequent to the Merger, IBG will effect the merger of CGI into IBG, with IBG continuing as the surviving corporation (the Subsequent Merger ), and the merger of UCB with and into Independent Bank, McKinney, Texas, a Texas banking association and a wholly-owned subsidiary of IBG ( Independent Bank ), with Independent Bank continuing as the surviving bank (the Bank Merger );
WHEREAS, to induce IBG to enter into this Agreement, certain shareholders of CGI have agreed to execute and deliver to IBG a Voting Agreement pursuant to which these shareholders agree to vote their shares of CGI Stock in favor of the Merger;
WHEREAS, IBG and CGI desire to set forth certain representations, warranties and covenants made by each to the other as an inducement to the execution and delivery of this Agreement and certain additional agreements related to the transactions contemplated hereby; and
WHEREAS, the respective boards of directors of IBG and CGI have approved this Agreement and the proposed transactions substantially on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, for and in consideration of the foregoing and of the mutual representations, warranties, covenants and agreements contained in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be bound hereby, the parties hereby agree as follows:
ARTICLE I
ACQUISITION OF CGI BY IBG
Section 1.01. Merger of CGI with and into Newco . Subject to the terms and conditions of this Agreement and the Agreement and Plan of Merger to be entered into between CGI and Newco (the Merger Agreement ) in the form attached hereto as Exhibit A, Newco will merge with and into CGI pursuant to the provisions of Chapter 10 of the Texas Business Organizations Code (the TBOC ).
Section 1.02. Effects of the Merger . CGI shall continue as the corporation resulting from the Merger (the Resulting Corporation ), and the Merger shall otherwise have the effects set forth in Section 10.008 of the TBOC and as set forth in the Merger Agreement.
Section 1.03. Certificate of Formation and Bylaws . The Certificate of Formation and Bylaws of the Resulting Corporation shall be as set forth in the Merger Agreement.
Section 1.04. Directors and Officers . The directors and officers of the Resulting Corporation shall be as set forth in the Merger Agreement.
Section 1.05. Merger Consideration . At the Effective Time (as defined in Section 1.09) by virtue of this Agreement and without any further action on the part of any holder:
A. Any shares of CGI Stock that are owned by CGI (other than as a fiduciary) shall automatically be canceled and retired and all rights with respect thereto shall cease to exist, and no consideration shall be delivered in exchange therefor.
B. Each share of CGI Stock underlying each CGI Warrant shall be converted into the right to receive from IBG $0.40 in cash or shares of IBG Stock as set forth below (the Per Share Warrant Holder Consideration ).
C. Each share of CGI Stock shall be converted into the right to receive from IBG $0.90 in cash or shares of IBG Stock as set forth below (the Per Share Shareholder Consideration ).
D. Each CGI Eligible Holder (as defined below) may elect to receive his Per Share Warrant Holder Consideration and Per Share Shareholder Consideration in the form of:
(1) all cash on the basis of (i) $0.40 for each share of CGI Stock underlying each CGI Warrant (the Per Warrant Cash Contribution ) and (ii) $0.90 for each share of CGI Stock (the Per Share Cash Consideration ).
(2) all shares of IBG Stock on the basis of (i) 0.0062 share of IBG Stock for each share of CGI Stock underlying each CGI Warrant (the Per Warrant Stock Consideration ), and (ii) 0.0138 share of IBG Stock for each share of CGI Stock (the Per Share Stock Consideration ).
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(3) Nothwithstanding the foregoing provisions of this Section 1.05(D):
(i) IBG shall not be required to issue shares of IBG Stock to more than ten (10) new shareholders (as calculated in accordance with Subchapter S of the Internal Revenue Code of 1986, as amended, and the regulations promulgated thereunder (the Code )); and
(ii) no fractional shares of IBG Stock shall be issued, and the number of shares of IBG Stock to which a CGI Eligible Holder is entitled to receive shall be rounded up or down, as appropriate, to the next whole number of shares.
(4) For purposes of this Agreement, CGI Eligible Holder shall mean a holder of CGI Stock and CGI Warrants who (i) is eligible to be a shareholder of an electing small business corporation under Subchapter S of the Code, (ii) has signed and delivered to IBG a Joinder to Shareholder Agreements in the form of Exhibit B attached hereto (the Shareholder Agreements), (iii) is an accredited investor as defined by federal securities laws, (iv) has signed and delivered to IBG a Warrant Holder Agreement in the form attached hereto as Exhibit C (the Warrant Holder Agreement ) on or before July 31, 2012 (the Election Date ); and (v) who have the right to receive total consideration of $150,000 or more (in cash) for their shares of CGI Stock and CGI Warrants. Schedule 1.05 sets forth a list of persons who CGI reasonably believes would be CGI Eligible Holders (provided that they sign and deliver the Shareholders Agreement and Warrant Holder Agreement) as of the date of this Agreement, together with the number of shares of CGI Stock and CGI Warrants owned by each such person.
(5) Each CGI Eligible Holder shall indicate the form in which such holder desires to receive their Per Share Warrant Holder Consideration and Per Share Shareholder Consideration, in an election form, the form of which is attached hereto as Exhibit D (the Election Form ). The CGI Eligible Holders shall return the completed signed Election Form to IBG on or before the Election Date.
(6) Each share of CGI Stock underlying the CGI Warrants and each share of CGI Stock owned by (i) a person or entity other than a CGI Eligible Holder, or (ii) a CGI Eligible Holder who fails to return a completed and signed Election Form to IBG by the Election Date (each of such persons described in the preceding clauses (i) and (ii) are referred to as a CGI Other Holder ), shall be converted into the right to receive the Per Warrant Cash Consideration and the Per Share Cash Consideration as applicable.
(7) CGI will work with the CGI Eligible Holders to arrange for the total number of CGI Eligible Holders who elect to receive their Merger Consideration in the form of IBG Stock (an Electing CGI Eligible Holder ) to be ten (10) or less. If the total number of Electing CGI Eligible Holders is greater than ten (10), then the right to receive the Per Warrant Stock Consideration and the Per Share Stock Consideration shall
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be allocated from the largest CGI Eligible Holder who has tendered an Election Form to the smallest CGI Eligible Holder, such that the Electing CGI Eligible Holders who are the ten (10) largest CHI Eligible Holders who have tendered Election Forms shall be entitled to receive the Per Warrant Stock Consideration and the Per Share Stock Consideration (such Electing CGI Eligible Holder is hereinafter referred to as an Accepted CGI Eligible Holder ). All Electing CGI Eligible Holders who are not among the ten (10) largest CGI Eligible Holders to have tendered Election Forms shall be deemed to be a CGI Other Holder.
E. Subject only to dissenters rights under Subchapter H of Chapter 10 of the TBOC, all shares of CGI Stock and all of the CGI Warrants shall no longer be outstanding and shall be cancelled and retired and all rights with respect thereto shall cease to exist, and each holder of CGI Stock or CGI Warrants shall cease to have any rights with respect thereto, except the right to receive the consideration provided for in this Section 1.05.
F. If the CGI Tangible Equity (as defined below) is greater than $7,050,000 as of the last day of the month preceding the Closing Date (as defined herein) (the Calculation Date ), then on the day prior to the Closing Date, CGI may, or may cause UCB to, distribute an aggregate amount equal to the difference between (i) the actual CGI Tangible Equity on the Calculation Date, less (ii) $7,050,000, to the holders of CGI Stock, the holders of CGI Warrants, officers, directors or employees of CGI or UCB, or other persons or entities as CGI determines in its sole discretion. Any such distribution is hereinafter referred to as the Section 1.05(F) Distribution. For purposes of this Agreement, CGI Tangible Equity shall mean the consolidated tangible stockholders equity of CGI as determined from CGIs financial statements in accordance with generally accepted accounting principles, consistently applied, without giving effect to any capital received by CGI upon the exercise of CGI Warrants prior to the Calculation Date, if any, and excluding any unrealized gains or losses on available for sale securities (the AFS Securities ). All costs and expenses of CGI or UCB related to the transactions contemplated by this Agreement, including without limitation, investment banking fees, legal fees, accounting fees, and director, officer, or employee bonuses or payments shall have been paid or accrued for prior to the Calculation Date and shall be included in the calculation of CGI Tangible Equity. The calculation of CGI Tangible Equity shall include accruals for all margin, franchise, ad valorem, and other tax owed by CGI and/or UCB on a pro rated basis for the period ending on the Closing Date. CGI shall, at least five business days prior to the Closing Date, provide IBG with a calculation of the CGI Tangible Equity. If IBG disagrees with such calculation of CGI Tangible Equity, CGI and IBG shall meet to resolve any such disagreement. If CGI and IBG cannot resolve any such disagreement, then an accounting firm mutually agreed to by IBG and CGI shall resolve any such disagreement which resolution shall be final and binding upon CGI and IBG.
Section 1.06. Treatment of Newco Stock . Each share of Newco Stock (as defined in Section 4.05) issued and outstanding immediately prior to the Effective Time shall, on and after the Effective Time, be converted into a like number of shares of the Resulting Corporation with the effect that the aggregate number of shares of common stock of the Resulting Corporation outstanding after the Effective Time shall be equal to the aggregate number of shares of Newco Stock outstanding immediately before the Effective Time, all of which shall continue to be owned by IBG. The authorized number of shares of common stock of the Resulting Corporation shall be the same as the authorized number of shares of Newco Stock immediately prior to the Effective Time.
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Section 1.07. Dissenting Shareholders . Notwithstanding anything in this Agreement to the contrary, shares of CGI Stock that are held by shareholders of CGI who have complied with the terms and provisions of Subchapter H of Chapter 10 of the TBOC (each a Dissenting Shareholder ) shall be entitled to those rights and remedies set forth in Subchapter H of Chapter 10 of the TBOC; provided, however , in the event that a shareholder of CGI fails to perfect, withdraws or otherwise loses any such right or remedy granted by the Subchapter H of Chapter 10 of the TBOC, each share of CGI Stock held by such shareholder shall be converted into and represent only the right to receive the consideration as specified in Section 1.05.
Section 1.08. Exchange of Certificates.
A. At least fifteen (15) days prior to the Closing Date (unless IBG and CGI shall mutually agree in writing to a later date), CGI shall mail or cause to be mailed to each holder of record of (i) one or more certificates which provide for the shares of CGI Stock (the Certificates ) and (ii) one or more warrant agreements representing CGI Warrants (the Warrant Agreements ) the following: (i) a letter of transmittal (which shall specify that delivery of the Certificates and Warrant Agreement shall be effected, and risk of loss and title to the Certificates and Warrant Agreements shall pass, only upon receipt of the Certificates and Warrant Agreements by IBG) and (ii) instructions for use in effecting the surrender of the Certificates and Warrant Agreements (collectively, the Transmittal Documents ). The Transmittal Documents shall be addressed to the most current address, according to the books and records of CGI, of each holder of record of Certificate(s) and Warrant Agreements.
B. If a holder of Certificates and Warrant Agreements surrenders such Certificates and Warrant Agreements and a properly executed letter of transmittal to IBG, as paying agent, at least two (2) business days prior to the Closing Date, then, on the Closing Date, IBG will deliver to such holder of Certificates and Warrant Agreements the aggregate Per Share Warrant Holder Consideration with respect to the Warrant Agreement, and the Per Share Shareholder Consideration with respect to the Certificates, that such holder is entitled to receive in connection with the Closing pursuant to Section 1.05. If a holder of Certificates and Warrant Agreements surrenders such Certificates and Warrant Agreements and a properly executed letter of transmittal to IBG, as paying agent, at any time after two (2) business days prior to the Closing Date, then IBG will promptly, but in no event later than two (2) business days following receipt of such Certificates and Warrant Agreements and letter of transmittal, deliver to such holder of Certificates and Warrant Agreements the aggregate Per Share Warrant Holder Consideration with respect to the Warrant Agreements, and the Per Share Shareholder Consideration with respect to the Certificates, which such holder is entitled to receive in connection with the Closing pursuant to Section 1.05.
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C. At or following the Closing, as applicable, pursuant to the exchange procedures set forth in Section 1.08(B), IBG shall deliver the consideration payable pursuant to Section 1.05 as follows:
(1) To each Accepted CGI Eligible Holder, a number of shares of IBG Stock equal to the sum of (a) the product of (i) the Per Warrant Stock Consideration, multiplied by (ii) the number of shares of CGI Stock underlying the CGI Warrants provided for in the Warrant Agreements surrendered by such Accepted CGI Eligible Holder, plus (b) the product of (i) the Per Share Stock Consideration, multiplied by (ii) the number of shares of CGI Stock represented by the Certificates surrendered by such Accepted CGI Eligible Holder.
(2) To each CGI Other Holder, an amount of cash equal to the sum of (a) the product of (i) the Per Warrant Cash Consideration, multiplied by (ii) the number of shares of CGI Stock underlying the CGI Warrants provided for in the Warrant Agreements surrendered by such CGI Other Holder, plus (ii) the product of (i) the Per Share Cash Consideration, multiplied by (ii) the number of shares of CGI Stock represented by the Certificates surrendered by such CGI Other Holder.
D. In the event that any Certificate or Warrant Agreement shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming such Certificate or Warrant Agreement to be lost, stolen or destroyed and, if required by IBG, the posting by such person of a bond in such amount as IBG may reasonably determine is necessary as indemnity against any claim that may be made against it with respect to such Certificate or Warrant Agreement, to IBG, as the paying agent, shall deliver in exchange for such lost, stolen or destroyed Certificate, the aggregate Per Share Shareholder Consideration payable with respect to such Certificate, or the aggregate Per Share Warrant Holder Consideration with respect to such Warrant Agreement, as applicable.
E. Until the holder of Certificates surrenders such Certificates and a properly executed letter of transmittal to IBG, such holder shall not be entitled to receive the Per Share Shareholder Consideration payable with respect to such Certificate. No interest will be paid on the Per Share Shareholder Consideration payable with respect to such Certificate. Until the holder of Warrant Agreements surrenders such Warrant Agreements and a properly executed letter of transmittal to IBG, such holder shall not be entitled to receive the Per Share Warrant Holder Consideration payable with respect to such Warrant Agreements. No interest will be paid on the Per Share Warrant Holder Consideration payable with respect to such Warrant Agreement.
F. After the Effective Time, there shall be no further registrations or transfers of Certificates on the stock transfer records of CGI.
G. Notwithstanding the foregoing, none of IBG, CGI or the paying agent shall be liable to any holder of CGI Stock or CGI Warrants for any amount delivered in good faith to a public official pursuant to any applicable abandoned property, escheat or similar laws.
Section 1.09. Effective Time . The Effective Time as that term is used in this Agreement means the effective time of the Merger as specified in the Certificate of Merger filed with and certified by the Secretary of State of Texas. The Certificate of Merger shall be filed as soon as practicable after the Closing Date.
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Section 1.10. Subsequent Merger . Promptly after the Effective Time, and in any event within three (3) business days, IBG shall cause the Subsequent Merger to be consummated.
ARTICLE II
THE CLOSING AND THE CLOSING DATE
Section 2.01. Time and Place of the Closing and Closing Date . The transactions contemplated under this Agreement shall be consummated on a date mutually agreeable to IBG and CGI that is within ten (10) days after the receipt of all necessary regulatory, corporate and other approvals, and the expiration of all associated mandatory waiting periods ( Closing Date ). On the Closing Date, a meeting (the Closing ) will take place at which the parties to this Agreement will exchange certificates, letters and other documents in order to determine whether all of the conditions set forth in ARTICLE VII and ARTICLE VIII have been satisfied or waived or whether any condition exists that would permit a party to this Agreement to terminate this Agreement. If no such condition then exists or if no party elects to exercise any right it may have to terminate this Agreement, then and thereupon the appropriate parties shall execute such documents and instruments as may be necessary or appropriate in order to effect the transactions contemplated by this Agreement.
The Closing shall take place at 10:00 a.m., local time at Independent Bank on the Closing Date, or at such other time and place to which IBG and CGI may agree.
Section 2.02. Actions to be Taken at the Closing by CGI . At the Closing, CGI shall execute and acknowledge (where appropriate) and deliver to IBG such documents and certificates necessary to carry out the terms and provisions of this Agreement, including the following (all of such actions constituting conditions precedent to IBGs obligations to close hereunder):
A. A certificate, dated as of the Closing Date, duly executed by the Secretary of CGI, acting solely in his capacity as an officer of CGI, pursuant to which CGI shall certify (i) the due adoption by the Board of Directors of CGI (the CGI Board ) of corporate resolutions attached to such certificate authorizing the execution and delivery of this Agreement, the Merger Agreement and any other agreements and documents contemplated hereby and thereby, and the consummation of the transactions contemplated hereby and thereby; (ii) the approval by the shareholders of CGI of this Agreement, the Merger Agreement and any other agreements and documents contemplated hereby and thereby, and the consummation of the transactions contemplated hereby and thereby, including the Merger; (iii) the incumbency and true signatures of those officers of CGI duly authorized to act on its behalf in connection with the execution and delivery of this Agreement, the Merger Agreement and any other agreements and documents contemplated hereby and thereby, and the taking of all actions contemplated hereby and thereby on behalf of CGI; and (iv) a true and correct list of the holders of CGI Stock and CGI Warrants as of the Closing Date;
B. A certificate, dated as of the Closing Date, duly executed by the Secretary of UCB, acting solely in his capacity as an officer of UCB, pursuant to which UCB shall certify (i) the due adoption by the Board of Directors of UCB (the UCB Board ) of corporate resolutions attached to such certificate authorizing the execution and delivery of a merger
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agreement providing for the Bank Merger (the Bank Merger Agreement ) and any other agreements and documents contemplated hereby and thereby, and the consummation of the transactions contemplated hereby and thereby, including the Bank Merger; (ii) the approval by CGI as the sole shareholder of UCB of the Bank Merger Agreement and any other agreements and documents contemplated hereby and thereby, and the consummation of the transactions contemplated hereby and thereby, including the Bank Merger; (iii) the incumbency and true signatures of those officers of UCB duly authorized to act on its behalf in connection with the execution and delivery of the Bank Merger Agreement and any other agreements and documents contemplated hereby and thereby, and the taking of all actions contemplated hereby and thereby on behalf of UCB; and (iv) a true and correct list of the shareholder of UCB;
C. A certificate duly executed by the President of CGI, acting solely in his capacity as an officer of CGI, dated as of the Closing Date, pursuant to which CGI shall certify, that (i) all of the representations and warranties made in Article III of this Agreement are true and correct in all material respects on and as of the date of such certificate as if made on such date, (ii) CGI has performed and complied in all material respects with all of its obligations and agreements required to be performed on or before the Closing Date under this Agreement, and (iii) there has been no Material Adverse Change (as defined in Section 11.10(G)) with respect to CGI or UCB since December 31, 2011;
D. Evidence reasonably satisfactory to IBG that, as of the Effective Time, (i) all CGI Employee Plans (as defined in Section 3.29) required to be terminated by IBG prior to the Closing have been terminated in accordance with the terms of such Employee Plans, the Code, the Employee Retirement Income Security Act of 1974, as amended ( ERISA ), and all other applicable laws and regulations and that all affected participants have been notified of such terminations; and that (ii) all outstanding options, agreements, warrants (other than CGI Warrants), or other commitment of any kind or character obligating CGI to (x) purchase shares of CGI Stock, or (y) issue shares of CGI Stock, (collectively, the CGI Stock Obligations ), have been terminated, satisfied or discharged;
E. All consents and approvals required to be obtained by CGI from third parties to consummate the transactions contemplated by this Agreement, including those listed on Schedule 3.09 ;
F. Supplemental disclosure schedules reflecting any material changes to the representations of CGI in ARTICLE III between the date of this Agreement and the Closing Date;
G. The Releases (as defined in Section 5.17), signed by the directors and executive officers of CGI and UCB;
H. The Support Agreements (as defined in Section 5.19) signed by the directors of CGI and UCB;
I. Executed agreements, certificates of merger, certificates, and other documents to evidence and facilitate the Subsequent Merger and the Bank Merger;
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J. All other documents required to be delivered to IBG by CGI under the provisions of this Agreement and all other documents, certificates and instruments as are consistent with the intent of this Agreement and reasonably requested by IBG or its counsel.
Section 2.03. Actions to be Taken at the Closing by IBG . At the Closing, IBG shall execute and acknowledge (where appropriate) and deliver to CGI such documents and certificates necessary to carry out the terms and provisions of this Agreement, including the following (all of such actions constituting conditions precedent to CGIs obligations to close hereunder):
A. A certificate, dated as of the Closing Date, executed by the Secretary of IBG, acting solely in her capacity as an officer of IBG, pursuant to which IBG shall certify (i) the due adoption by the Board of Directors of IBG (the IBG Board ) of corporate resolutions attached to such certificate authorizing the execution and delivery of this Agreement, the Merger Agreement, a merger agreement providing for the Subsequent Merger (the Subsequent Merger Agreement ), and the other agreements and documents contemplated hereby and thereby, and the consummation of the transactions contemplated hereby and thereby, including the Merger and the Subsequent Merger; and (ii) the incumbency and true signatures of those officers of IBG duly authorized to act on its behalf in connection with the execution and delivery of this Agreement, the Merger Agreement, the Subsequent Merger Agreement and any other agreements and documents contemplated hereby and thereby, and the consummation of the transactions contemplated hereby and thereby on behalf of IBG;
B. A certificate, dated as of the Closing Date, duly executed by the Secretary of Independent Bank, acting solely in her capacity as an officer of Independent Bank, pursuant to which Independent Bank shall certify (i) the due adoption by the Board of Directors of Independent Bank (the Independent Bank Board ) of corporate resolutions attached to such certificate authorizing the execution and delivery of the Bank Merger Agreement and any other agreements and documents contemplated hereby and thereby, and the consummation of the transactions contemplated hereby and thereby; (ii) the approval by IBG as the sole shareholder of Independent Bank of the Bank Merger Agreement and any other agreements and documents contemplated hereby and thereby, and the consummation of the transactions contemplated hereby and thereby, including the Bank Merger; (iii) the incumbency and true signatures of those officers of Independent Bank duly authorized to act on its behalf in connection with the execution and delivery of the Bank Merger Agreement and any other agreements and documents contemplated hereby and thereby, and the consummation of the transactions contemplated hereby and thereby, on behalf of Independent Bank; and (iv) a true and correct list of the shareholder of Independent Bank as of the Closing Date;
C. A certificate, dated as of the Closing Date, executed by the Secretary of Newco, acting solely in her capacity as an officer of Newco, pursuant to which Newco shall certify (i) the due adoption by the Board of Directors of Newco (the Newco Board ) of corporate resolutions attached to such certificate authorizing the execution and delivery of the Merger Agreement, the Subsequent Merger Agreement and the other agreements and documents contemplated hereby and thereby, and the consummation of the transactions contemplated hereby and thereby; (ii) the approval by IBG as the sole shareholder of Newco of the Merger Agreement, the Subsequent Merger Agreement and any other agreements and documents
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contemplated hereby and thereby, and the consummation of the transactions contemplated hereby and thereby, including the Merger and the Subsequent Merger; and (iii) the incumbency and true signatures of those officers of Newco duly authorized to act on its behalf in connection with the execution and delivery of the Merger Agreement, the Subsequent Merger Agreement and any other agreements and documents contemplated hereby and thereby, and the consummation of the transactions contemplated hereby and thereby on behalf of Newco;
D. A certificate, dated as of the Closing Date, duly executed by the Chairman of the Board of IBG, acting solely in his capacity as an officer of IBG, pursuant to which IBG shall certify that (i) all of the representations and warranties made in Article IV of this Agreement are true and correct in all material respects on and as of the date of such certificate as if made on such date and (ii) IBG has performed and complied in all material respects with all of its obligations and agreements required to be performed on or before the Closing Date under this Agreement;
E. All consents and approvals required to be obtained by IBG from third parties to consummate the transactions contemplated by this Agreement, including those listed on Schedule 4.07 ;
F. Supplemental disclosure schedules reflecting any material changes to the representations of IBG in Article IV between the date of this Agreement and the Closing Date;
G. Executed agreements, certificates of merger, certificates, and other documents to evidence and facilitate the Subsequent Merger and the Bank Merger; and
H. All other documents required to be delivered to CGI by IBG under the provisions of this Agreement and all other documents, certificates and instruments as are consistent with the terms of this Agreement and reasonably requested by CGI or its counsel.
Section 2.04. Further Assurances . At any time and from time to time within twelve months after the Closing, at the reasonable request of any party to this Agreement and without further consideration, any party so requested will execute and deliver such other instruments and take such other action as the requesting party may reasonably deem necessary or desirable in order to effectuate the transactions contemplated hereby. In the event that, at any time after the Closing any further commercially reasonable action is necessary or desirable to carry out the purposes of this Agreement, each party hereto shall take or cause to be taken all such commercially reasonable actions.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF CGI
CGI hereby makes the following representations and warranties to IBG. CGI agrees to provide to IBG at the Closing supplemental disclosure schedules (the Schedules ) reflecting any material changes to the representations and warranties set forth herein between the date of this Agreement and the Closing Date. The disclosure of a matter on any Schedule shall constitute disclosure for purposes of all Schedules required by this Agreement.
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Section 3.01. Organization and Ownership.
A. CGI is a bank holding company registered under the Bank Holding Company Act of 1956, as amended. CGI is a corporation duly organized, validly existing and in good standing under all laws, rules and regulations of the State of Texas. CGI has all requisite corporate power and authority to own UCB as now owned, and to enter into and carry out its obligations under this Agreement and the Merger Agreement. True and complete copies of the Articles of Incorporation and Bylaws of CGI, as amended to date, have been delivered to IBG.
B. Schedule 3.01B contains a true and correct list of the holders of CGI Stock and CGI Warrants as of the date of this Agreement and, except as set forth in Schedule 3.01B , no other person or entity has any equity or other interest in CGI. True and correct copies of (i) all offering materials, as amended and supplemented, distributed by CGI since January 1, 2009, and (ii) the agreements and other documents providing for the CGI Warrants have been delivered to IBG. CGI is the sole record and beneficial owner of all of the issued and outstanding shares of capital stock of UCB, free and clear of all liens, security interests, and encumbrances of every kind or character, and no other person or entity has any equity or other interest in UCB. CGI does not, directly or indirectly, own or control any Affiliate (as defined in Section 11.10) or Subsidiary (as defined in Section 11.10), other than UCB and Community Group Statutory Trust I (the Trust ). CGI has no equity interest, direct or indirect, in any other bank or corporation or in any partnership, joint venture or other business enterprise or entity, and the business carried on by CGI has not been conducted through any other direct or indirect Subsidiary or Affiliate of CGI other than UCB and the Trust.
Section 3.02. Execution and Delivery . CGI has full corporate power and authority to execute and deliver this Agreement and the Merger Agreement and to consummate the transactions contemplated hereby and thereby. The execution and delivery of this Agreement and the Merger Agreement, and (provided the required regulatory and shareholder approvals are obtained) the consummation of the transactions contemplated hereby and thereby, have been duly and validly approved by the CGI Board. Other than approval by the requisite vote of the shareholders of CGI, no other corporate proceedings or approvals are necessary on the part of CGI to approve this Agreement or the Merger Agreement, and to consummate the transactions contemplated hereby and thereby. This Agreement, the Merger Agreement, and the other agreements and documents contemplated hereby and thereby, have been or at Closing will be duly executed by CGI and each such agreement or document constitutes or at Closing will constitute a legal, valid and binding obligation of CGI, enforceable in accordance with its respective terms and conditions, except as enforceability may be limited by bankruptcy, conservatorship, insolvency, moratorium, reorganization, receivership or similar laws and judicial decisions affecting the rights of creditors generally and by general principles of equity (whether applied in a proceeding at law or in equity).
Section 3.03. CGI Capitalization . The authorized capital stock of CGI consists of 35,000,000 shares of common stock, $0.01 par value per share, of which 13,675,469 shares of CGI Stock are issued and outstanding as of the date of this Agreement. All offerings by CGI to issue shares of its capital stock have terminated. All of such issued shares are validly issued, fully paid and nonassessable. Except as set forth in Schedule 3.03 , there are no (A) other outstanding equity securities of any kind or character, or (B) outstanding subscriptions, options,
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convertible securities, rights, warrants (other than the CGI Warrants), calls or other agreements or commitments of any kind issued or granted by, or binding upon, CGI to purchase or otherwise acquire any security of or equity interest in CGI, obligating CGI to issue any shares of, restricting the transfer of or otherwise relating to shares of its capital stock of any class. Except as set forth in Schedule 3.03 , there are no outstanding contractual obligations of CGI to vote or dispose of any shares of CGI Stock and there are no shareholder agreements, voting trusts or similar agreements relating to the CGI Stock. All of the issued and outstanding shares of the CGI Stock, and rights to acquire shares of CGI Stock pursuant to the CGI Warrants, have been duly authorized, validly issued and are fully paid and nonassessable, and have not been issued in violation of the preemptive rights of any person. Such shares of the CGI Stock, and rights to acquire shares of CGI Stock pursuant to the CGI Warrants, have been issued in material compliance with the securities laws of the United States and other jurisdictions having applicable securities laws. Except as set forth in Schedule 3.03 , there are no restrictions applicable to the payment of dividends on the shares of the CGI Stock except pursuant to applicable laws and regulations, and all dividends declared prior to the date of this Agreement have been paid.
Section 3.04. UCB.
A. UCB is a national banking association, duly organized, validly existing and in good standing under the laws of the United States. UCB has all requisite corporate power and authority (including all licenses, franchises, permits and other governmental authorizations as are legally required) to carry on its business as now being conducted, to own, lease and operate its properties and assets as now owned, leased or operated and to enter into and to carry on the business and activities now conducted by it. True and complete copies of the Articles of Association and Bylaws of UCB, as amended to date, have been delivered to IBG. UCB is an insured bank as defined in the Federal Deposit Insurance Act of 1950, as amended (the FDIA ). The nature of the business of UCB does not require it to be qualified to do business in any jurisdiction other than the State of Texas. UCB has no equity interest, direct or indirect, in any other bank or corporation or in any partnership, joint venture or other business enterprise or entity, except as acquired through settlement of indebtedness, foreclosure, the exercise of creditors remedies or in a fiduciary capacity, and the business carried on by UCB has not been conducted through any other direct or indirect Subsidiary or Affiliate of UCB.
B. The authorized capital stock of UCB consists of 1,000,000 shares of common stock, $5.00 par value per share, of which 400,000 shares are issued and outstanding as of the date of this Agreement. CGI is in possession of all certificates evidencing all of the shares of capital stock of UCB. All of the outstanding shares of capital stock or other securities evidencing ownership of UCB are duly authorized, validly issued, fully paid and nonassessable and have not been issued in violation of the preemptive rights of any person and have been issued in material compliance with applicable securities laws. There are no restrictions applicable to the payment of dividends on the shares of the capital stock of UCB, except as set forth in Schedule 3.04B or otherwise pursuant to applicable laws and regulations, and all dividends declared prior to the date of this Agreement on such capital stock have been paid. There are no (A) other outstanding equity securities of any kind or character, or (B) outstanding subscriptions, contracts, options, convertible securities, preemptive rights, warrants, calls or other agreements or commitments of any kind issued or granted by, binding upon or otherwise obligating UCB to issue, sell or otherwise dispose of, or to purchase, redeem or otherwise
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acquire, any shares of capital stock of UCB. There are no outstanding contractual obligations of UCB to vote or dispose of any shares of capital stock of UCB. There are no shareholder agreements, voting trusts or similar agreements relating to the capital stock of UCB.
Section 3.05. No Violation . Except as set forth in Schedule 3.05 , neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby, nor compliance by CGI or UCB with any of the terms or provisions hereof (provided the required regulatory and shareholder approvals are obtained) will (i) violate any provision of the charters, articles, certificates or bylaws of CGI or UCB; (ii) violate any statute, code, ordinance, rule, regulation, judgment, order, writ, decree or injunction applicable to CGI or UCB or any of their Properties (as defined in Section 11.10) or assets; (iii) violate, conflict with, result in a breach of any provision of or the loss of any benefit under, constitute a default (or an event which, with notice or the lapse of time, or both, would constitute a default) under, result in the termination or cancellation under, accelerate the performance required by or rights or obligations under, or result in the creation of any lien upon any of the respective Properties or assets of CGI or UCB under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture or deed of trust, or any material license, lease, agreement, contract or other instrument or obligation to which CGI or UCB is a party, or by which CGI or UCB or any of their respective Properties, assets or business activities may be bound or subject.
Section 3.06. Compliance with Laws, Permits and Instruments . CGI and UCB, and their respective employees and agents, hold all material licenses, registrations, franchises, permits and authorizations necessary for the lawful conduct of their respective businesses. Except as set forth in Schedule 3.06 , CGI and UCB are in compliance with all applicable laws, statutes, orders, rules, regulations and policies of any Government Authority (as defined in Section 11.10), except where the failure, whether individually or in the aggregate, to be so in compliance could not reasonably be expected to cause a Material Adverse Change.
Section 3.07. Financial Statements.
A. CGI has made available to IBG copies of the audited financial statements of CGI as of and for the years ended December 31, 2011 and December 31, 2010 (together, the CGI Financial Statements ) and CGIs FR Y-6, FR Y-9c and FR Y9Lp reports filed during 2012 and 2011 (together, the CGI Regulatory Reports ). Each of the CGI Financial Statements (including, in each case, any related notes), was prepared in accordance with GAAP (except as may be indicated in the notes to such financial statements) and fairly presented, in all material respects, the financial position of CGI at the dates and for the periods indicated. Each of the CGI Regulatory Reports fairly presents, in all material respects, the financial position of CGI and the result of its operations at the date and for the periods indicated in conformity with the instructions for the preparation of CGI Regulatory Reports as promulgated by applicable regulatory authorities.
B. CGI has made available to IBG true and complete copies of the Reports of Condition and Income for UCB filed during 2012 and 2011 ( UCB Call Reports ). Each of the UCB Call Reports fairly presents, in all material respects, the financial position of UCB and the results of its operations at the dates and for the periods indicated in conformity, in all material respects, with the instructions for the preparation of UCB Call Reports as promulgated by
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applicable regulatory authorities. The UCB Call Reports do not contain any items of special or nonrecurring income or any other income not earned in the ordinary course of business. UCB has calculated its allowance for loan losses in accordance with GAAP and, to the extent applicable, regulatory accounting principles ( RAP ) as applied to national banking associations and in accordance with all applicable rules and regulations. The allowance for loan losses account for UCB is, and as of the Closing Date shall be, adequate in all material respects to provide for all losses on the loans and other real estate owned by UCB.
Section 3.08. Litigation . Except as disclosed in Schedule 3.08 , neither CGI nor UCB is a party to any, and there are no pending or, to the Best Knowledge (as defined in Section 11.10) of CGI, threatened, legal, administrative, arbitral or other proceedings, claims, actions or governmental or regulatory investigations of any nature against CGI or UCB which are reasonably likely, individually or in the aggregate, to result in a Material Adverse Change, nor, to the Best Knowledge of CGI, is there any reasonable basis for any proceeding, claim or action against CGI or UCB that would be reasonably likely, individually or in the aggregate, to result in a Material Adverse Change. There is no injunction, order, judgment or decree imposed upon CGI or UCB or the assets or Property of CGI or UCB that has resulted in, or is reasonably likely to result in, a Material Adverse Change.
Section 3.09. Consents and Approvals . The CGI Board (at a meeting duly called and held) has resolved or will resolve to (i) call a special meeting of shareholders for the purpose of approving and adopting the Merger and this Agreement, and (ii) recommend to the CGI shareholders the approval and adoption of the Merger and this Agreement. Except for the approvals set forth in Schedule 3.09 , no approval, consent, order or authorization of, or registration, declaration or filing with, any Governmental Authority or other third party is required on the part of CGI in connection with the execution, delivery or performance of this Agreement or the agreements contemplated hereby, or the consummation by CGI of the transactions contemplated hereby or thereby.
Section 3.10. Undisclosed Liabilities . CGI and UCB have no material liability or obligation, accrued, absolute, contingent or otherwise and whether due or to become due (including unfunded obligations under any Employee Plan or liabilities for federal, state or local taxes or assessments) that are not reflected in or disclosed in the CGI Financial Statements or the UCB Call Reports, except (A) those liabilities, obligations and expenses incurred in the ordinary course of business and materially consistent with past business practices since December 31, 2011, (B) liabilities, obligations and expenses incurred as a result of or arising from this Agreement or any other agreement or document contemplated hereby, or any of the transactions contemplated hereby or thereby, or (C) liabilities, obligations and expenses as disclosed on Schedule 3.10 .
Section 3.11. Title to Tangible Assets . True and complete copies of all existing deeds, leases and title insurance policies for all Properties and all mortgages, deeds of trust, security agreements and other documents describing encumbrances to which each such Property is subject have been made available to IBG. CGI and UCB have good and indefeasible title to, or valid leasehold interest in, all of their respective tangible assets and Properties including all material personal properties reflected in the CGI Financial Statements and the UCB Call Reports or acquired subsequent thereto, subject to no liens, mortgages, security interests, encumbrances
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or charges of any kind except (A) as described in Schedule 3.11 , (B) as noted in the CGI Financial Statements and the UCB Call Reports, (C) statutory liens not yet delinquent, (D) consensual landlord liens, (E) minor defects and irregularities in title and encumbrances that do not materially impair the use thereof for the purpose for which they are held, (F) pledges of assets in the ordinary course of business to secure public funds deposits, and (G) those assets and Properties disposed of for fair value in the ordinary course of business since December 31, 2011.
Section 3.12. Absence of Certain Changes or Events . Except as disclosed on Schedule 3.12 , since December 31, 2011, each of CGI and UCB has conducted its business only in the ordinary course and has not, other than in the ordinary course of business and materially consistent with past practices:
A. Incurred any obligation or liability, whether absolute, accrued, contingent or otherwise, whether due or to become due, except deposits taken, federal funds purchased, and current liabilities for trade or business obligations ), none of which, individually or in the aggregate, result in a Material Adverse Change;
B. Discharged or satisfied any lien or paid any obligation or liability, whether absolute or contingent, due or to become due in an amount greater than $25,000 in the aggregate;
C. Declared or made any payment of dividends or other distribution to its shareholders, or purchased, retired or redeemed, or obligated itself to purchase, retire or redeem, any of its shares of capital stock or other securities;
D. Issued, reserved for issuance, granted, sold or authorized the issuance of any shares of its capital stock or other securities or subscriptions, options, warrants, calls, rights or commitments of any kind relating to the issuance thereof;
E. Acquired any capital stock or other equity securities or acquired any ownership interest in any bank, corporation, partnership or other entity (except (i) through settlement of indebtedness, foreclosure, or the exercise of creditors remedies or (ii) in a fiduciary capacity, the ownership of which does not expose it to any liability from the business, operations or liabilities of such person);
F. Mortgaged, pledged or subjected to lien, charge, security interest or any other encumbrance or restriction any of its Property, business or assets, tangible or intangible except (i) statutory liens not yet delinquent, (ii) consensual landlord liens, (iii) minor defects and irregularities in title and encumbrances that do not materially impair the use thereof for the purpose for which they are held, (iv) pledges of assets to secure public funds deposits, and (v) those assets and Properties disposed of for fair value since December 31, 2011;
G. Sold, transferred, leased to others or otherwise disposed of any material amount of its assets (except for assets disposed of for fair value in the ordinary course of business) or canceled or compromised any debt or claim, or waived or released any right or claim, of material value;
H. Terminated, canceled or surrendered, or received any notice of or threat of termination or cancellation of, any contract, lease or other agreement, or suffered any damage, destruction or loss, which, individually or in the aggregate, would constitute a Material Adverse Change;
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I. Disposed of, permitted to lapse, transferred or granted any rights under, or entered into any settlement regarding the breach or infringement of, any United States or foreign license or Proprietary Right (as defined in Section 3.17) or modified any existing material rights with respect thereto;
J. Except for routine salary increases made in the ordinary course of business and materially consistent with past practices or as contemplated by this Agreement, made any material change in the rate of compensation, commission, bonus, vesting or other direct or indirect remuneration payable, paid or agreed or orally promised to pay, conditionally or otherwise, any bonus, extra compensation, pension, severance or vacation pay, to or for the benefit of any of its shareholders, directors, officers, employees or agents, or entered into any employment or consulting contract or other agreement with any director, officer or employee or adopted, amended or terminated (except as expressly provided herein) any pension, employee welfare, retirement, stock purchase, stock option, stock appreciation rights, termination, severance, income protection, golden parachute, savings or profit sharing plan (including trust agreements and insurance contracts embodying such plans), any deferred compensation, or collective bargaining agreement, any group insurance contract or any other incentive, welfare or employee benefit plan or agreement maintained by CGI or UCB for the benefit of their respective directors, employees or former employees;
K. Made any capital expenditures or capital additions or betterments in excess of an aggregate of $25,000;
L. Instituted, had instituted against it, settled or agreed to settle, any litigation, action or proceeding before any Governmental Authority other than routine collection suits instituted by Governmental Authorities to collect amounts owed or suits in which the amount in controversy is less than $25,000;
M. Suffered any change, event or condition that, individually or in the aggregate, has caused or would reasonably be anticipated to result in a Material Adverse Change, or any Material Adverse Change in earnings or costs or relations with its employees, agents, depositors, loan customers, correspondent banks, or suppliers;
N. Except for the transactions contemplated by this Agreement or as otherwise permitted hereunder, entered into any transaction, or entered into, modified or amended any contract or commitment involving a financial commitment over the term of the contract or commitment in excess of $25,000;
O. Entered into or given any promise, assurance or guarantee of the payment, discharge or fulfillment of any undertaking or promise made by any third person, firm or corporation other than in the ordinary course of business and materially consistent with past practices;
P. Sold, or knowingly disposed of, or otherwise divested of the ownership, possession, custody or control, of any corporate books or records of any nature that, in accordance with sound business practice, normally are retained for a period of time after their use, creation or receipt, except at the end of the normal retention period;
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Q. Made any, or acquiesced with any, change in any accounting methods, principles or material practices, except as required by GAAP or RAP;
R. Sold ( provided, however , that payment at maturity or prepayment is not deemed a sale) Investment Securities (as defined in Section 11.10) or purchased Investment Securities, other than U.S. Treasury securities with a maturity of two years or less;
S. Made, renewed, extended the maturity of, or altered any of the material terms of any loan to any single borrower and his related interests in excess of the principal amount of $100,000;
T. Amended or made any change in its articles of incorporation, articles of association, or bylaws, or
U. Entered into any agreement or made any commitment whether in writing or otherwise to take any of the types of action described in subsections A through T above.
Section 3.13. Leases, Contracts and Agreements . Schedule 3.13 sets forth an accurate and complete description of all leases, subleases, licenses, contracts and agreements to which CGI or UCB is a party or by which CGI or UCB is bound (A) that obligate or could reasonably be expected to obligate CGI or UCB for an amount in excess of $50,000 over the entire term of any such agreement or (B) that are related or of a similar nature and that in the aggregate obligate or could reasonably be expected to obligate CGI or UCB for an amount in excess of $50,000 over the entire term of such related contracts (collectively, the Contracts ). CGI has delivered or made available to IBG true and correct copies of all Contracts. For the purposes of this Agreement, the Contracts shall be deemed not to include loans made by, repurchase agreements made by, spot foreign exchange transactions of, bankers acceptances of or deposits by UCB, but do include unfunded loan commitments and letters of credit issued by UCB where the borrowers total direct and indirect indebtedness to UCB is in excess of $100,000. Except as set forth in Schedule 3.13 , no participations or loans have been sold that have buy back, recourse or guaranty provisions that create contingent or direct liabilities of UCB. CGI and UCB have not received any written notice of material default under or material noncompliance with any Contract. For each lease in which CGI or UCB is named as lessee, such party is the owner and holder of all the leasehold estates or other rights and interest purported to be granted by such instruments, in each case free and clear of any lessee-granted security interests, claims, liens (including tax liens), forfeitures, mortgages, pledges, penalties, encumbrances, assignments or charges whatsoever except as established by the lease or applicable law. CGI and UCB enjoy peaceful and undisturbed possession under all leases under which they are currently operating.
Section 3.14. Taxes and Tax Returns.
A. CGI and UCB have duly and timely filed or caused to be filed all federal, state, foreign and local tax returns and reports required to be filed by them on or prior to the date of this Agreement (all such returns and reports being accurate and complete in all material respects) and have duly paid or caused to be paid on their behalf all taxes that are due and
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payable by them on or prior to the date of this Agreement, other than taxes that are being contested in good faith and are adequately reserved against or provided for (in accordance with GAAP) on their respective financial statements. As of the date hereof, CGI and UCB have no material liability for taxes in excess of the amount reserved or provided for on their respective financial statements as of the date thereof.
B. There are no disputes pending with respect to, or claims or assessments asserted in writing for, any material amount of taxes upon CGI or UCB, nor has CGI or UCB given or been requested in writing to give any currently effective waivers extending the statutory period of limitation applicable to any tax return for any period.
C. Proper and accurate amounts, if required, have been withheld by CGI and UCB from their respective employees, independent contractors, creditors, shareholders or other third parties for all periods in material compliance with the tax withholding provisions of applicable law.
D. Since December 31, 2008, the federal income tax returns of CGI and UCB have not been audited or examined and no such audit is currently pending or, to the Best Knowledge of CGI, threatened.
E. Neither CGI nor UCB has entered into any tax sharing agreement, tax allocation agreement, tax indemnity agreement, or similar contract or arrangement or any current or potential contractual obligation to indemnify any other person with respect to taxes that will require any payment by CGI or UCB after the date of this Agreement.
F. As used in this Agreement, the terms tax and taxes mean all federal, state, local and foreign income, excise, gross receipts, gross income, ad valorem, profits, gains, property, capital, sales, transfer, use, value-added, stamp, documentation, payroll, employment, severance, withholding, duties, intangibles, franchise, backup withholding, and other taxes, charges, levies or like assessments together with all penalties and additions to tax and interest thereon. Additionally, the terms tax return and tax returns means any return, declaration, report, claim for refund or information return or statement relating to taxes, including any schedule or attachment thereto and including any amendment thereof.
G. CGI has delivered or made available to IBG correct and complete copies of all federal income tax returns filed by CGI with the Internal Revenue Service ( IRS ), examination reports, and statements of deficiencies assessed against or agreed to by CGI and UCB, if any, since March 31, 2012.
H. Schedule 3.14H sets forth an accurate and complete description as to the United States federal net operating and capital loss carryforwards for CGI and UCB (including the year such net operating or capital loss was generated and any limitations of such net operating or capital loss carryforwards under Code Sections 382, 383 or 384 or the Treasury Regulations, excluding any such limitations arising from the transactions contemplated under this Agreement) as of December 31, 2011.
Section 3.15. Insurance . Schedule 3.15 contains a complete list and brief description of all policies of insurance, including fidelity and bond insurance, maintained as of the date of this
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Agreement by CGI and UCB. All such policies (A) are sufficient for compliance by CGI and UCB, in all material respects, with all requirements of applicable law and all agreements to which CGI and UCB are parties, (B) are valid, outstanding and enforceable, except as enforceability may be limited by bankruptcy, conservatorship, insolvency, moratorium, reorganization, receivership, or similar laws and judicial decisions affecting the rights of creditors generally and by general principles of equity (whether applied in a proceeding at law or equity), and (C) are presently in full force and effect, and, except as set forth in Schedule 3.15 , no written notice has been received of the cancellation, or threatened or proposed cancellation, of any such policy and there are no unpaid premiums due thereon. Neither CGI nor UCB is in default with respect to the material provisions of any such policy or has failed to give any notice or present any known claim thereunder in a due and timely fashion. Each material Property of CGI and UCB is insured for the benefit of CGI and UCB in amounts deemed adequate by CGIs and UCBs respective management against risks customarily insured against. Except as set forth in Schedule 3.15 , there have been no claims under any fidelity bonds of CGI and UCB since January 1, 2009, and to the Best Knowledge of CGI, there are no facts that could reasonably be expected to form the basis of a claim under such bonds.
Section 3.16. No Adverse Change . Except as disclosed in the representations and warranties made in this Article III and the Schedules hereto, there has not been any Material Adverse Change since December 31, 2011, nor to the actual Knowledge of CGI, has any event occurred that has resulted in, or has a reasonable probability of resulting in the future in, a Material Adverse Change.
Section 3.17. Proprietary Rights . CGI and UCB do not require the use of any material patent, patent application, patent right, invention, process, trademark (whether registered or unregistered), trademark application, trademark right, trade name, service name, service mark, copyright or any trade secret (collectively, Proprietary Rights ) for the business or operations of CGI and UCB that are not owned, held or licensed by CGI or UCB. CGI and UCB have not received within the past three years any written notice of infringement of or conflict with the rights of others with respect to the use by CGI or UCB of Proprietary Rights. There is no claim or action by any such person pending or, to the Best Knowledge of CGI, threatened, with respect thereto.
Section 3.18. Transactions with Certain Persons and Entities . Except as set forth in Schedule 3.18 , neither CGI nor UCB owes any amount to (excluding deposit liabilities), or has any loan, contract, lease, commitment or other obligation from or to, any of the present or former directors or officers (other than compensation for current services not yet due and payable and reimbursement of expenses arising in the ordinary course of business) of CGI or UCB, and none of such persons owes any amount to CGI or UCB. There are no agreements, instruments, commitments, extensions of credit, tax sharing or allocation agreements or other contractual agreements of any kind between or among CGI, whether on its own behalf or in its capacity as trustee or custodian for the funds of any Employee Plan, and any of its Affiliates (as defined in Section 11.10).
Section 3.19. Evidences of Indebtedness . All evidences of indebtedness and leases that are reflected as assets of CGI and UCB are legal, valid and binding obligations of the respective obligors thereof, enforceable in accordance with their respective terms (except as limited by
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applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors generally and the availability of injunctive relief, specific performance and other equitable remedies), and are not subject to any asserted or, to the Best Knowledge of CGI, threatened, defenses, offsets or counterclaims that may reasonably be asserted against CGI, UCB or the present holder thereof. The credit and collateral files of UCB contain all material information (excluding general, local or national industry, economic or similar conditions) actually known to CGI or UCB that is required to evaluate, in accordance with generally prevailing practices in the banking industry, the collectability of the loan portfolio of UCB (including loans that will be outstanding if UCB advances funds it is obligated to advance), except for items identified on UCBs internal exception list which has been made available to IBG. All loans classified substandard, doubtful, loss, nonperforming or problem loans internally by management of UCB or any applicable Regulatory Agency (as defined in Section 11.10) are set forth on UCBs watch list, which is set forth in Schedule 3.19 .
Section 3.20. Employee Relationships . Each of CGI and UCB has complied in all material respects with all applicable material laws relating to its relationships with its employees, and CGI reasonably believes that the relationship between UCB and its employees is good. Except as set forth in Schedule 3.20 , to the Best Knowledge of CGI, no key executive officer or manager of any of the operations of UCB or any group of employees of UCB has or have any present plans to terminate their respective employment with UCB. Schedule 3.20 also contains a list of all employees of UCB and their respective annual compensation.
Section 3.21. Condition of Assets . Except as set forth on Schedule 3.21 , all tangible assets used by CGI and UCB are in good operating condition, ordinary wear and tear excepted, and conform, in all material respects, with all applicable ordinances, regulations, zoning and other laws, whether federal, state or local. None of UCBs premises or equipment is in need of maintenance or repairs other than ordinary routine maintenance or repairs that are not material in nature or cost.
Section 3.22. Environmental Compliance . Except as set forth in Schedule 3.22 :
A. CGI and UCB and all of their Properties and operations are in material compliance with all applicable Environmental Laws (as defined in Section 11.10). CGI has not received any written notice of any past, present, or future conditions, events, activities, practices or incidents that could reasonably be expected to materially interfere with or prevent the compliance of CGI and UCB with all applicable Environmental Laws.
B. CGI and UCB have obtained all material permits, licenses and authorizations that are required under all applicable Environmental Laws.
C. No Hazardous Materials (as defined in Section 11.10) exist on, about or within any of the Properties, nor, to the Best Knowledge of CGI, have any Hazardous Materials previously existed on, about or within or been used, generated, stored, transported, disposed of, on or released from any of the Properties, except as would not be expected to have or cause a Material Adverse Change. The use that CGI and UCB make of the Properties will not result in the use, generation, storage, transportation, accumulation, disposal or release of any Hazardous Material on, in or from any of the Properties, except as would not be expected to have or cause a Material Adverse Change.
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D. There is no action, suit, proceeding, investigation, or inquiry before any Governmental Authority pending or, to the Best Knowledge of CGI, threatened, against CGI or UCB relating in any way to any Environmental Law. UCB has no liability for remedial action under any Environmental Law. CGI and UCB have not received any written request for information by any Governmental Authority with respect to the condition, use or operation of any of the Properties nor has CGI or UCB received any written notice from any Governmental Authority or other person with respect to any violation of or claimed or potential liability of any kind under any Environmental Law (including any letter, notice or inquiry from any person or Governmental Authority informing CGI or UCB that it is or may be liable in any way under any Environmental Laws or requesting information to enable such a determination to be made).
Section 3.23. Regulatory Compliance.
A. Except as set forth on Schedule 3.23 , neither CGI nor UCB is now nor has been, since March 31, 2010, (i) subject to any cease-and-desist or other order or enforcement action issued by, (ii) a party to any written agreement, consent agreement or memorandum of understanding with, (iii) a party to any commitment letter or similar undertaking to, (iv) subject to any order or directive by, (v) ordered to pay any civil penalty by, (vi) a recipient of a supervisory letter from, or (vii) subject to any board resolutions adopted at the request or suggestion of, any Regulatory Agency or other Governmental Authority that restricts the conduct of its business or that relates to its capital adequacy, its ability to pay dividends, its credit or risk management policies, its management or its business (each of the items set forth in the preceding clauses (i) through (vii), a Regulatory Agreement ). There are no pending or, to the Best Knowledge of CGI, threatened investigations by any Regulatory Agency with regard to CGI or UCB.
B. All reports, records, registrations, statements, notices and other documents or information required to be filed by CGI and UCB with any Regulatory Agency have been duly and timely filed and, to the Best Knowledge of CGI, all information and data contained in such reports, records or other documents are true, accurate, correct and complete in all material respects.
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Section 3.24. Absence of Certain Business Practices . Neither CGI nor UCB nor any of their respective officers, employees or agents, nor any other person acting on their behalf, has, directly or indirectly, since March 31, 2010, given or agreed to give any gift or similar benefit to any customer, supplier, governmental employee or other person who is or may be in a position to help or hinder the business of CGI or UCB (or assist CGI or UCB in connection with any actual or proposed transaction) that (A) may reasonably be expected to subject CGI or UCB to any damage or penalty in any civil, criminal or governmental litigation or proceeding, (B) if not given in the past, may reasonably have resulted in a Material Adverse Change or (C) if not continued in the future may reasonably be expected to result in a Material Adverse Change or may reasonably be expected to subject CGI or UCB to suit or penalty in any private or governmental litigation or proceeding.
Section 3.25. Books and Records . The minute books, stock certificate books and stock transfer ledgers of CGI and UCB have been kept accurately in the ordinary course of business and are complete and correct in all material respects. The transactions entered therein represent bona fide transactions, and there have been no material transactions involving the business of CGI and UCB that properly should have been set forth therein and that have not been accurately so set forth.
Section 3.26. Forms of Instruments, Etc . CGI has made and will make available to IBG copies of all of UCBs standard forms of notes, mortgages, deeds of trust and other routine documents of a like nature used on a regular and recurring basis in the ordinary course of its business.
Section 3.27. Fiduciary Responsibilities . Each of CGI and UCB has performed in all material respects all of its duties as a trustee, custodian, guardian or as an escrow agent in a manner that complies in all material respects with all applicable laws, regulations, orders, agreements, instruments and common law standards, where the failure to so perform would result in a Material Adverse Change. To the Best Knowledge of CGI, there is no reasonable basis for any such Material Adverse Change.
Section 3.28. Guaranties . Except in the ordinary course of business, according to past business practices and in material compliance with applicable law, CGI or UCB have not guaranteed the obligations or liabilities of any other person, firm or corporation.
Section 3.29. Employee Benefit Plans.
A. Set forth on Schedule 3.29 is a complete and correct list of all employee benefit plans (as defined in Section 3(3) of ERISA), all specified fringe benefit plans as defined in Section 6039D of the Code, and all other bonus, incentive, compensation, deferred compensation, profit sharing, stock option, stock appreciation right, stock bonus, stock purchase, employee stock ownership, savings, severance, supplemental unemployment, layoff, salary continuation, retirement, pension, health, life insurance, disability, group insurance, vacation, holiday, sick leave, fringe benefit or welfare plan, or any other similar plan, agreement, policy or understanding (whether written or oral, qualified or nonqualified, currently effective or terminated), and any trust, escrow or other agreement related thereto, which (a) is currently maintained or contributed to by CGI or UCB, or with respect to which CGI or UCB has any
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liability, and (b) provides benefits to any officer, employee, service provider, former officer or former employee of CGI or UCB, or the dependents of any thereof, regardless of whether funded or unfunded (herein collectively the Employee Plans and each individually an Employee Plan ).
B. No Employee Plan is a defined benefit plan within the meaning of Section 3(35) of ERISA. CGI has delivered or made available to IBG true, accurate and complete copies of the documents comprising each Employee Plan and any related trust agreements, annuity contracts, insurance policies or any other funding instruments ( Funding Arrangements ), any contracts with independent contractors (including actuaries and investment managers) that relate to any Employee Plan, the Form 5500 filed with the IRS in each of the three (3) most recent plan years with respect to each Employee Plan, and related schedules and opinions, and such other documents, records or other materials related thereto, as reasonably requested by IBG. There have been no prohibited transactions (described under Section 406 of ERISA or Section 4975(c) of the Code), breaches of fiduciary duty or any other breaches or violations of any law applicable to the Employee Plans and related Funding Arrangements that could reasonably be expected to subject IBG, CGI or UCB to any taxes, penalties or other liabilities. Each Employee Plan that is represented to be qualified under Section 401(a) of the Code has a current favorable determination or opinion letter, and does not have any amendments for which the remedial amendment period under Code Section 401(b) has expired. All reports, descriptions and filings required by the Code, ERISA or any government agency with respect to each Employee Plan have been timely and completely filed or distributed. Each Employee Plan has been operated in material compliance with applicable law or in accordance with its terms. There are no pending claims, lawsuits or actions relating to any Employee Plan (other than ordinary course claims for benefits) and, to the Best Knowledge of CGI, none are threatened. No written or, to the Best Knowledge of CGI, oral representations have been made by CGI or UCB to any employee or former employee of CGI or UCB promising or guaranteeing any employer payment or funding for the continuation of medical, dental, life or disability coverage for such person, their dependent, or any beneficiary for any period of time beyond the end of the current plan year or beyond termination of employment (except to the extent of coverage required under Section 4980B of the Code or applicable state law). Compliance with FAS 106 will not create any material change to the CGI Financial Statements or the UCB Call Reports. Except to the extent that the payment could constitute an excess parachute payment under Section 280G of the Code, there are no contracts or arrangements providing for payments that will be nondeductible or subject to excise tax under Code Sections 4999 or 280G, nor will IBG be required to gross up or otherwise compensate any person because of the limits contained in such Code sections. There are no surrender charges, penalties, or other costs or fees that could reasonably be expected to be imposed by any person against CGI, UCB, an Employee Plan, or any other person, including an Employee Plan participant or beneficiary, as a result of the consummation of the transactions contemplated by this Agreement with respect to any insurance, annuity or investment contracts or other similar investment held by any Employee Plan.
C. With respect to each employee benefit plan (as defined in ERISA) maintained or contributed to or required to be contributed to, currently or in the past, by any trade or business with which CGI or UCB is required by any of the rules contained in the Code or ERISA to be treated as a single employer ( Controlled Group Plans ):
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(i) All Controlled Group Plans which are group health plans (as defined in the Code and ERISA) have been operated prior to the Closing such that failures to operate such group health plans in compliance, in all material respects, with Part 6 of Subtitle B of Title 1 of ERISA and Sections 4980B and 4980D of the Code could not reasonably be expected to subject CGI or UCB to liability;
(ii) There is no Controlled Group Plan that is a defined benefit plan (as defined in Section 3(35) of ERISA), nor has there been a Controlled Group Plan that is a defined benefit plan in the last five (5) calendar years; and
(iii) There is no Controlled Group Plan that is a multiple employer plan or multi-employer plan (as either such term is defined in ERISA), nor has there been a Controlled Group Plan that is either a multiple employer plan or multi-employer plan since 2007.
D. All Employee Plan documents, annual reports or returns, audited or unaudited financial statements, actuarial valuations, summary annual reports, and summary plan descriptions issued with respect to the Employee Plans are correct, complete, and current in all material respects, have been timely filed, and there have been no material changes in the information set forth therein.
E. All contributions (including all employer contributions, employee salary reduction contributions and all premiums or other payments (other than claims)) that are due have been made with respect to each Employee Plan.
Section 3.30. No Excess Parachute Payments . No amount, whether in cash or property or vesting of property, that will be received by or benefit provided to, any officer, director or employee of CGI, UCB or any of their respective Affiliates who is a disqualified individual (as such term is defined in Treasury Regulation 1.280G-1) under any employment, severance or termination agreement, other compensation arrangement or benefit plan currently in effect will be an excess parachute payment (as such term is defined in 280G(b)(1) of the Code) solely as a result of the transactions contemplated by this Agreement; and no such person is entitled to receive any additional payment from CGI, UCB, or IBG in the event that the excise tax of Section 4999(a) of the Code is imposed on such person.
Section 3.31. Bank Secrecy Act, Foreign Corrupt Practices Act and U.S.A. Patriot Act . UCB is in material compliance with the Bank Secrecy Act (12 U.S.C. §§ 1730(d) and 1829(b)), the United States Foreign Corrupt Practices Act and the International Money Laundering Abatement and Anti-Terrorist Financing Act, otherwise known as the U.S.A. Patriot Act, and all regulations promulgated thereunder. UCB has properly certified all foreign deposit accounts and has made all necessary tax withholdings on all of its deposit accounts; furthermore, UCB has timely and properly filed and maintained all requisite Currency Transaction Reports and other related forms, including any requisite Custom Reports required by any agency of the United States Treasury Department, including the IRS. UCB has timely filed all Suspicious Activity Reports with the Financial Institutions Financial Crimes Enforcement Network (U.S. Department of the Treasury) required to be filed by it pursuant to the laws and regulations referenced in this Section.
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Section 3.32. Data Processing Agreements . CGI obtains its data processing services, ATM, and other information technology services exclusively through the contracts or agreements with the persons or entities described on Schedule 3.32 ( DP Contracts ). A true and correct executed copy of each DP Contract, as in effect as of the date hereof, has been provided to IBG. Other than the DP Contracts, CGI has no agreement with any other person or entity for data processing, ATM or other technology services.
Section 3.33. Proxy/Information Statement . None of the information supplied or to be supplied by CGI, UCB or any of their respective directors, officers, employees or agents for inclusion or incorporation by reference in the proxy and/or information statement to be sent to the shareholders of CGI in connection with the Merger ( Proxy/Information Statement ) will, at the date the Proxy/Information Statement is mailed to the shareholders of CGI and, as the Proxy/Information Statement may be amended or supplemented, at the time of the CGI shareholders meeting, contain any untrue statement of a material fact or omit to state any material fact with respect to CGI necessary in order to make the statements therein with respect to CGI, in light of the circumstances under which they are made, not misleading. All documents that CGI is responsible for filing with any Regulatory Agency in connection with the Merger will comply, with respect to CGI, in all material respects with the provisions of applicable law.
Section 3.34. Dissenting Shareholders . To the Best Knowledge of CGI, there is no plan or intention on the part of any shareholders of CGI to exercise their appraisal rights in the manner provided by applicable law.
Section 3.35. Fair Housing Act, Home Mortgage Disclosure Act and Equal Credit Opportunity Act . UCB is in compliance in all material respects with the Fair Housing Act (42 U.S.C. § 3601 et seq.), the Home Mortgage Disclosure Act (12 U.S.C. § 2801 et seq.) and the Equal Credit Opportunity Act (15 U.S.C. § 1691 et seq.) and all regulations promulgated thereunder. Since January 1, 2009, UCB has not received any written notices of any violation of such acts or any of the regulations promulgated thereunder, and it has not received any written notice of any, and to the Best Knowledge of CGI there is no, threatened administrative inquiry, proceeding or investigation with respect to its compliance with such laws.
Section 3.36. Usury Laws and Other Consumer Compliance Laws . All loans of UCB have been made in compliance in all material respects with all applicable statutes and regulatory requirements at the time of such loan or any renewal thereof, including the Texas usury statutes as currently interpreted, Regulation Z (12 C.F.R. § 226 et seq.) issued by the Federal Reserve Board (FRB), the Federal Consumer Credit Protection Act (15 U.S.C. § 1601 et seq.), the Texas Consumer Credit Code (Tex. Rev. Civ. Stat. Ann. Art. 5062-2.01, et seq.) and all statutes governing the operation of banks operating in the State of Texas. Each such loan was made by UCB in the ordinary course of its lending business.
Section 3.37. Zoning and Related Laws . All real property owned or operated by UCB and the use thereof is in compliance with all applicable laws, ordinances, regulations, orders or requirements, including building, zoning and other laws, except where the failure, whether individually or in the aggregate, to be so in compliance could not reasonably be expected to cause a Material Adverse Change.
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Section 3.38. Business Combination . This Agreement and the transactions contemplated hereby are exempt from the requirements of Subchapter M of Chapter 21 of the TBOC and any other applicable state takeover law or state law that purports to limit or restrict business combinations or the ability to acquire or vote shares.
Section 3.39. Organization and Qualification of the Trust . With respect to the Trust:
A. The Trust has issued and sold capital securities (the Capital Securities ) and common securities (the Common Securities ) under an Amended and Restated Declaration of Trust (the Trust Agreement ), and CGI has issued to the Trust, Floating Rate or Fixed/Floating Rate Junior Subordinated Deferrable Interest Debentures ( Debentures ), under an Indenture (the Trusts Indenture and Trust Agreement are collectively referred to as its Operative Documents ). Confidential Schedule 3.39 sets forth, with respect to the Trust, the (i) date of its Trust Agreement and Indenture, (ii) aggregate liquidation value of its Capital Securities, (iii) aggregate liquidation value of its Common Securities, (iv) aggregate amount of Debentures that have been issued to that Trust by CGI, (v) the rate paid on its Capital Securities, the Common Securities and the Debentures (collectively, the Securities), (vi) date after which CGI may redeem its Debentures at par, and (vii) maturity date of its Debentures.
B. The Trust has been duly created and is validly existing in good standing as a statutory trust under the laws of the State of Delaware with the power and authority to own property and to conduct the business it transacts and proposes to transact and to enter into and perform its obligations under the Operative Documents. The Trust is not a party to or otherwise bound by any material agreement other than the Operative Documents and a Placement Agreement of even date with the Trust Agreement. The Trust is and will, under current law, be classified for federal income tax purposes as a grantor trust and not as an association taxable as a corporation.
C. The Capital Securities and the Common Securities have been duly authorized by the Trust Agreement, have been validly issued and represent undivided beneficial interests in the assets of the Trust. None of the Capital Securities or the Common Securities is subject to preemptive or other similar rights. All of the outstanding Common Securities are directly owned by CGI free and clear of any pledge, security interest, claim, lien or other encumbrance, and have been issued in compliance with applicable federal and state securities laws. The Common Securities satisfy the eligibility requirements of Rule 144A(d)(3) issued under the Securities Act of 1933, as amended. Neither CGI nor the Trust is an investment company or an entity controlled by an investment company, in each case within the meaning of section 3(a) of the Investment Company Act of 1940, as amended, without regard to section 3(c) of that act. The Debentures are not held of record by shareholders of CGI or the UCB.
D. The sole assets of the Trust are its Debentures, any interest paid on such Debentures to the extent not distributed, proceeds of such Debentures, or any of the foregoing.
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E. All of the proceeds from the sale of the Capital Securities issued by the Trust have been invested in its Debentures. All of the proceeds from the sale of the Common Securities issued by the Trust have been invested in the Debentures. All Debentures are and have been held by the Trust since their initial issuance.
F. The Trust was not formed to, and is not authorized to, conduct any trade or business and the Trust has not conducted any trade or business since it was formed. The Trust exists for the exclusive purposes of (i) issuing and selling its Capital Securities and Common Securities, (ii) using the proceeds from the sale of its Capital Securities and Common Securities to acquire its Debentures, and (iii) engaging only in activities necessary, advisable or incidental thereto. The Trust was formed to facilitate direct investment in the assets of the Trust, and the existence of multiple classes of ownership is incidental to that purpose. There is no intent to provide holders of such interests in the Trust with diverse interests in the assets of the Trust.
G. CGI has exercised its right to defer interest payments on the Debentures since June 15, 2009.
H. The Trusts income consists solely of payments made by CGI with respect to its Debentures, and such payments are not derived from the active conduct of a financial business by the Trust. Both CGIs obligation to make those payments and the amounts thereof are set forth in the Debentures. Neither CGIs obligation to make those payments nor the amounts payable by CGI is dependent on income or profits of CGI or any Affiliate of CGI (although CGIs ability to do so is so dependent).
I. CGI has not issued any class of capital shares either pari passu or senior to the Debentures. All Debentures are either pari passu or senior to CGIs trade accounts payable arising in the ordinary course of business.
J. CGI and the Trust have created a debtor-creditor relationship between CGI, as debtor, and the Trust, as a creditor, and CGI and the Trust have treated the Debentures as indebtedness for all tax purposes. The Trust is and will be classified for all tax purposes as a grantor trust and not as an association taxable as a corporation.
Section 3.40. Representations Not Misleading . No representation or warranty by CGI and UCB contained in this Agreement contains or will contain on the Closing Date any untrue statement of a material fact or omits or will omit on the Closing Date to state a material fact necessary to make the statements contained herein, in light of the circumstances under which they were made, not misleading. All written statements, exhibits, schedules, and other documents furnished to IBG by CGI or UCB under and pursuant to, or in anticipation of, this Agreement are accurate, complete, and correct in all material respects.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF IBG
IBG hereby makes the following representations and warranties to CGI. IBG agrees to provide to CGI at the Closing supplemental disclosure schedules reflecting any material changes to the representations and warranties set forth herein between the date of this Agreement and the Closing Date.
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Section 4.01. Organization and Ownership .
A. IBG is a registered bank holding company under the Bank Holding Company Act of 1956, as amended. IBG is a corporation duly organized, validly existing and in good standing under the laws, rules and regulations of the State of Texas. IBG has all requisite corporate power and authority to own Independent Bank as now owned and to enter into and carry out its obligations under this Agreement, the Merger Agreement and the Subsequent Merger Agreement. True and complete copies of the Articles of Incorporation and Bylaws of IBG, as amended to date, have been made available to CGI. IBG is the sole beneficial and record owner of all of the issued and outstanding shares of capital stock of Independent Bank, free and clear of all liens, security interests, and encumbrances of any kind or character except as set forth in Schedule 4.01A .
B. Schedule 4.01B contains a true and correct list of the holders of IBG Stock as of the date of this Agreement and, except as set forth in Schedule 4.01B , no other person or entity has any equity or other interest in IBG. True and correct copies of all offering materials, as amended and supplemented, distributed by IBG since January 1, 2012, have been delivered to CGI. Except as set forth in Schedule 4.01B , IBG is the sole record and beneficial owner of all of the issued and outstanding shares of capital stock of Independent Bank, free and clear of all liens, security interests, and encumbrances of every kind or character, and no other person or entity has any equity or other interest in Independent Bank. Except as set forth in Schedule 4.01B , IBG does not, directly or indirectly, own or control any Affiliate (as defined in Section 11.10) or Subsidiary (as defined in Section 11.10), other than Independent Bank. Except as set forth in Schedule 4.01B , IBG has no equity interest, direct or indirect, in any other bank or corporation or in any partnership, joint venture or other business enterprise or entity, and the business carried on by IBG has not been conducted through any other direct or indirect Subsidiary or Affiliate of IBG other than Independent Bank.
Section 4.02. Execution and Delivery . IBG has full corporate power and authority to execute and deliver this Agreement, the Merger Agreement and the Subsequent Merger Agreement, and to consummate the transactions contemplated hereby and thereby. The execution and delivery of this Agreement, the Merger Agreement and the Subsequent Merger Agreement and (provided the required regulatory approvals are obtained) the consummation of the transactions contemplated hereby and thereby, have been duly and validly approved by the IBG Board. Except for the written consent of IBG as the sole shareholder of Newco, no other corporate proceedings on the part of IBG are necessary to approve this Agreement, the Merger Agreement or the Subsequent Merger Agreement, and to consummate the transactions contemplated hereby and thereby. This Agreement, the Merger Agreement, the Subsequent Merger Agreement, and the other agreements and documents contemplated hereby and thereby have been, or at Closing will be, duly and validly executed and delivered to CGI, and each constitutes or at Closing will constitute a valid and binding obligation of IBG, enforceable against IBG in accordance with its terms and conditions, except as enforceability may be limited by bankruptcy, conservatorship, insolvency, moratorium, reorganization, receivership or similar laws and judicial decisions affecting the rights of creditors generally and by general principles of equity (whether applied in a proceeding at law or in equity).
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Section 4.03. IBG Capitalization . The authorized capital stock of IBG consists of 10,000,000 shares of common stock, $1.00 par value per share, of which 2,450,715 shares are outstanding as of the date of this Agreement. All of such issued shares are validly issued, fully paid and nonassessable. Except as set forth in Schedule 4.03 , there are no (A) other outstanding equity securities of any kind or character, or (B) outstanding subscriptions, options, convertible securities, rights, warrants, calls or other agreements or commitments of any kind issued or granted by, or binding upon, IBG to purchase or otherwise acquire any security of or equity interest in IBG, obligating IBG to issue any shares of, restricting the transfer of, or otherwise relating to shares of its capital stock of any class except as set forth in Schedule 4.03 . There are no outstanding contractual obligations of IBG to vote or dispose of any shares of IBG Stock. There are no shareholder agreements, voting trusts or similar agreements relating to the IBG Stock, except as set forth in Schedule 4.03 . All of the issued and outstanding shares of the IBG Stock have been duly authorized, validly issued and are fully paid and nonassessable, and have not been issued in violation of the preemptive rights of any person. Such shares of the IBG Stock have been issued in material compliance with the securities laws of the United States and other jurisdictions having applicable securities laws. There are no restrictions applicable to the payment of dividends on the shares of the IBG Stock except pursuant to applicable laws and regulations, and all dividends declared prior to the date of this Agreement have been paid.
Section 4.04. Independent Bank.
A. Independent Bank is a state banking association, duly organized, validly existing and in good standing under the laws of the state of Texas and the United States. Independent Bank has all requisite corporate power and authority (including all licenses, franchises, permits and other governmental authorizations as are legally required) to carry on its business as now being conducted, to own, lease and operate its properties and assets as now owned, leased or operated and to enter into and to carry on the business and activities now conducted by it. True and complete copies of the Articles of Association and Bylaws of Independent Bank, as amended to date, have been delivered to CGI. Independent Bank is an insured bank as defined in the Federal Deposit Insurance Act of 1950, as amended (the FDIA ). The nature of the business of Independent Bank does not require it to be qualified to do business in any jurisdiction other than the State of Texas. Except as set forth in Schedule 4.04A , Independent Bank has no equity interest, direct or indirect, in any other bank or corporation or in any partnership, joint venture or other business enterprise or entity, except as acquired through settlement of indebtedness, foreclosure, the exercise of creditors remedies or in a fiduciary capacity, and the business carried on by Independent Bank has not been conducted through any other direct or indirect Subsidiary or Affiliate of Independent Bank.
B. The authorized capital stock of Independent Bank consists of 2,000,000 shares of common stock, $1.00 par value per share, of which 985,930 shares are issued and outstanding as of the date of this Agreement. IBG is in possession of all certificates evidencing all of the shares of capital stock of Independent Bank. All of the outstanding shares of capital stock or other securities evidencing ownership of Independent Bank are duly authorized, validly issued, fully paid and nonassessable and have not been issued in violation of the preemptive rights of any person and have been issued in material compliance with applicable securities laws. There are no restrictions applicable to the payment of dividends on the shares of the capital stock of Independent Bank, except as set forth in Schedule 4.04B or otherwise pursuant to applicable
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laws and regulations, and all dividends declared prior to the date of this Agreement on such capital stock have been paid. There are no (A) other outstanding equity securities of any kind or character, or (B) outstanding subscriptions, contracts, options, convertible securities, preemptive rights, warrants, calls or other agreements or commitments of any kind issued or granted by, binding upon or otherwise obligating Independent Bank to issue, sell or otherwise dispose of, or to purchase, redeem or otherwise acquire, any shares of capital stock of Independent Bank. There are no outstanding contractual obligations of Independent Bank to vote or dispose of any shares of capital stock of Independent Bank. There are no shareholder agreements, voting trusts or similar agreements relating to the capital stock of Independent Bank.
Section 4.05. Authorized and Outstanding Stock of Newco . The authorized capital stock of Newco will consist of 1,000 shares of common stock, $1.00 par value per share (the Newco Stock ). On the date the Merger Agreement is executed and delivered and on the Closing Date, 1,000 shares of Newco Stock will be issued and outstanding.
Section 4.06. Compliance with Laws, Permits and Instruments . IBG, Independent Bank and Newco, and their respective employees and agents, hold all material licenses, registrations, franchises, permits and authorizations necessary for the lawful conduct of their respective businesses.
Section 4.07. Consents and Approvals . Except for regulatory and other approvals as disclosed in Schedule 4.07 , no approval, consent, order or authorization of, or registration, declaration or filing with, any Governmental Authority or other third party is required on the part of IBG in connection with the execution, delivery or performance of this Agreement or the agreements contemplated hereby, including the Merger Agreement or the consummation by IBG of the transactions contemplated hereby or thereby.
Section 4.08. Regulatory Approval . IBG is well capitalized as defined by federal regulations as of the date hereof. Independent Bank has a CRA rating of satisfactory. Neither IBG nor Independent Bank is subject to any Regulatory Agreement, nor is IBG aware of any circumstance or event that could reasonably result in a Regulatory Agreement with respect to IBG or Independent Bank. IBG reasonably believes that it will be able to obtain all requisite regulatory approvals necessary to consummate the Merger.
Section 4.09. Undisclosed Liabilities . IBG and Independent Bank have no material liability or obligation, accrued, absolute, contingent or otherwise and whether due or to become due (including unfunded obligations under any Employee Plan or liabilities for federal, state or local taxes or assessments) that are not reflected in or disclosed in the IBG Financial Statements or the Independent Bank Call Reports, except (A) those liabilities, obligations and expenses incurred in the ordinary course of business and materially consistent with past business practices since December 31, 2011, (B) liabilities, obligations and expenses incurred as a result of or arising from this Agreement or any other agreement or document contemplated hereby, or any of the transactions contemplated hereby or thereby, or (C) liabilities, obligations and expenses as disclosed on Schedule 4.09 .
Section 4.10. No Violation . Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby, nor compliance by IBG or
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Independent Bank with any of the terms or provisions hereof or thereof (provided the required regulatory and shareholder approvals are obtained) will (i) violate any provision of the charters, articles, certificates or bylaws of IBG or Independent Bank; (ii) violate any statute, code, ordinance, rule, regulation, judgment, order, writ, decree or injunction applicable to IBG or Independent Bank or any of their respective properties or assets; (iii) violate, conflict with, result in a breach of any provision of or the loss of any benefit under, constitute a default (or an event which, with notice or the lapse of time, or both, would constitute a default) under, result in the termination or cancellation under, accelerate the performance required by or rights or obligations under, or result in the creation of any lien upon any of the respective properties or assets of IBG, or Independent Bank under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, deed of trust, license, lease, agreement, contract or other instrument or obligation to which IBG or Independent Bank is a party, or by which IBG or Independent Bank or any of their respective properties, assets or business activities, may be bound or subject.
Section 4.11. Litigation . Except as disclosed in Schedule 4.11 , neither IBG nor Independent Bank are parties to any, and there are no pending or, to the Best Knowledge of IBG, threatened, legal, administrative, arbitral or other proceedings, claims, actions or governmental or regulatory investigations of any nature against IBG or Independent Bank which are reasonably likely, individually or in the aggregate, to result in a Material Adverse Change, nor, to the Best Knowledge of IBG, is there any basis for any proceeding, claim or any action against IBG or Independent Bank that would be reasonably likely, individually or in the aggregate, to result in a Material Adverse Change. There is no injunction, order, judgment or decree imposed upon IBG or Independent Bank or the assets or properties of IBG or Independent Bank that has resulted in, or is reasonably likely to result in, a Material Adverse Change.
Section 4.12. Financial Statements.
A. IBG has made available to CGI copies of the audited financial statements of IBG for the years ended December 31, 2011 and December 31, 2010 (together, the IBG Financial Statements ) and IBGs FR Y-6, FR Y-9c and FR Y9Lp reports filed during 2012 and 2011 (together, the IBG Regulatory Reports ). Each of the IBG Financial Statements (including, in each case, any related notes) was prepared in accordance with GAAP (except as may be indicated in the notes to such financial statements) and fairly presented, in all material respects, the financial position of IBG at the dates and for the periods indicated. Each of the IBG Regulatory Reports fairly presents, in all material respects, the financial position of IBG and the result of its operations at the date and for the periods indicated in conformity with the instructions for the preparation of IBG Regulatory Reports as promulgated by applicable regulatory authorities.
B. IBG has made available to CGI true and complete copies of the Reports of Condition and Income filed during 2012 and 2011 for Independent Bank ( Independent Bank Call Reports ). Each of the Independent Bank Call Reports fairly presents, in all material respects, the financial position of Independent Bank and the results of its operations at the dates and for the periods indicated in conformity, in all material respects, with the instructions for the preparation of Independent Bank Call Reports as promulgated by applicable regulatory authorities. The Independent Bank Call Reports do not contain any items of special or nonrecurring income or any other income not earned in the ordinary course of business except as
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expressly specified therein. Independent Bank has calculated its allowance for loan losses in accordance with GAAP and, to the extent applicable, RAP as applied to state banking associations and in accordance with all applicable rules and regulations.
Section 4.13. Taxes and Tax Returns.
A. IBG and Independent Bank have duly and timely filed or caused to be filed all federal, state, foreign and local tax returns and reports required to be filed by them on or prior to the date of this Agreement (all such returns and reports being accurate and complete in all material respects) and have duly paid or caused to be paid on their behalf all taxes that are due and payable by them on or prior to the date of this Agreement, other than taxes that are being contested in good faith and are adequately reserved against or provided for (in accordance with GAAP) on their respective financial statements. As of the date hereof, IBG and Independent Bank have no material liability for taxes in excess of the amount reserved or provided for on their respective financial statements as of the date thereof.
B. There are no disputes pending with respect to, or claims or assessments asserted in writing for, any material amount of taxes upon IBG or Independent Bank, nor has IBG or Independent Bank given or been requested in writing to give any currently effective waivers extending the statutory period of limitation applicable to any tax return for any period.
C. Proper and accurate amounts, if required, have been withheld by IBG and Independent Bank from their respective employees, independent contractors, creditors, shareholders or other third parties for all periods in material compliance with the tax withholding provisions of applicable law.
D. Since December 31, 2008, the federal income tax returns of IBG and Independent Bank have not been audited or examined and no such audit is currently pending or, to the Best Knowledge of CGI, threatened.
E. Neither IBG nor Independent Bank has entered into any tax sharing agreement, tax allocation agreement, tax indemnity agreement, or similar contract or arrangement or any current or potential contractual obligation to indemnify any other person with respect to taxes that will require any payment by IBG or Independent Bank after the date of this Agreement.
F. As used in this Agreement, the terms tax and taxes mean all federal, state, local and foreign income, excise, gross receipts, gross income, ad valorem, profits, gains, property, capital, sales, transfer, use, value-added, stamp, documentation, payroll, employment, severance, withholding, duties, intangibles, franchise, backup withholding, and other taxes, charges, levies or like assessments together with all penalties and additions to tax and interest thereon. Additionally, the terms tax return and tax returns means any return, declaration, report, claim for refund or information return or statement relating to taxes, including any schedule or attachment thereto and including any amendment thereof.
G. IBG has delivered or made available to IBG correct and complete copies of all federal income tax returns filed by IBG with the Internal Revenue Service ( IRS ), examination reports, and statements of deficiencies assessed against or agreed to by IBG and Independent Bank, if any, since March 31, 2012.
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Section 4.14. Insurance . Schedule 4.14 contains a complete list and brief description of all policies of insurance, including fidelity and bond insurance, maintained as of the date of this Agreement by IBG and Independent Bank. All such policies (A) are sufficient for compliance by IBG and Independent Bank, in all material respects, with all requirements of applicable law and all agreements to which IBG and Independent Bank are parties, (B) are valid, outstanding and enforceable, except as enforceability may be limited by bankruptcy, conservatorship, insolvency, moratorium, reorganization, receivership, or similar laws and judicial decisions affecting the rights of creditors generally and by general principles of equity (whether applied in a proceeding at law or equity), and (C) are presently in full force and effect, and, except as set forth in Schedule 4.14 , no written notice has been received of the cancellation, or threatened or proposed cancellation, of any such policy and there are no unpaid premiums due thereon. Neither IBG nor Independent Bank is in default with respect to the material provisions of any such policy or has failed to give any notice or present any known claim thereunder in a due and timely fashion. Each material Property of IBG and Independent Bank is insured for the benefit of IBG and Independent Bank in amounts deemed adequate by IBGs and Independent Banks respective management against risks customarily insured against. Except as set forth in Schedule 4.14 , there have been no claims under any fidelity bonds of IBG and Independent Bank since January 1, 2009, and to the Best Knowledge of CGI, there are no facts that could reasonably be expected to form the basis of a claim under such bonds.
Section 4.15. No Adverse Change . Except as disclosed in the representations and warranties made in this Article IV and the Schedules hereto, there has not been any Material Adverse Change since December 31, 2011, nor to the actual Knowledge of IBG, has any event occurred that has resulted in, or has a reasonable probability of resulting in the future in, a Material Adverse Change.
Section 4.16. Transactions with Certain Persons and Entities . Except as set forth in Schedule 4.16 , neither IBG nor Independent Bank owes any amount to (excluding deposit liabilities), or has any loan, contract, lease, commitment or other obligation from or to, any of the present or former directors or officers (other than compensation for current services not yet due and payable and reimbursement of expenses arising in the ordinary course of business) of IBG or Independent Bank, and none of such persons owes any amount to IBG or Independent Bank. There are no agreements, instruments, commitments, extensions of credit, tax sharing or allocation agreements or other contractual agreements of any kind between or among IBG, whether on its own behalf or in its capacity as trustee or custodian for the funds of any Employee Plan, and any of its Affiliates (as defined in Section 11.10).
Section 4.17. Absence of Certain Business Practices . Neither IBG nor any of its respective officers, employees or agents, nor any other person acting on their behalf, has, directly or indirectly, since March 31, 2010, given or agreed to give any gift or similar benefit to any customer, supplier, governmental employee or other person who is or may be in a position to help or hinder the business of IBG (or assist IBG in connection with any actual or proposed transaction) that (A) may reasonably be expected to subject IBG to any damage or penalty in any civil, criminal or governmental litigation or proceeding, (B) if not given in the past, may
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reasonably have resulted in a Material Adverse Change or (C) if not continued in the future may reasonably be expected to result in a Material Adverse Change or may reasonably be expected to subject IBG to suit or penalty in any private or governmental litigation or proceeding.
Section 4.18. Business Combination . This Agreement and the transactions contemplated hereby are exempt from the requirements of Subchapter M of Chapter 21 of the TBOC and any other applicable state takeover law or state law that purports to limit or restrict business combinations or the ability to acquire or vote shares.
Section 4.19. Regulatory Compliance.
A. Except as set forth on Schedule 4.19A , neither IBG nor Independent Bank is now nor has been, since March 31, 2010, (i) subject to any cease-and-desist or other order or enforcement action issued by, (ii) a party to any written agreement, consent agreement or memorandum of understanding with, (iii) a party to any commitment letter or similar undertaking to, (iv) subject to any order or directive by, (v) ordered to pay any civil penalty by, (vi) a recipient of a supervisory letter from, or (vii) subject to any board resolutions adopted at the request or suggestion of, any Regulatory Agency or other Governmental Authority that restricts the conduct of its business or that relates to its capital adequacy, its ability to pay dividends, its credit or risk management policies, its management or its business (each of the items set forth in the preceding clauses (i) through (vii), a Regulatory Agreement ). There are no pending or, to the Best Knowledge of IBG, threatened investigations by any Regulatory Agency with regard to IBG or Independent Bank.
B. All reports, records, registrations, statements, notices and other documents or information required to be filed by IBG and Independent Bank with any Regulatory Agency have been duly and timely filed and, to the Best Knowledge of IBG, all information and data contained in such reports, records or other documents are true, accurate, correct and complete in all material respects.
Section 4.20. Evidences of Indebtedness . All evidences of indebtedness and leases that are reflected as assets of IBG and Independent Bank are legal, valid and binding obligations of the respective obligors thereof, enforceable in accordance with their respective terms (except as limited by applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors generally and the availability of injunctive relief, specific performance and other equitable remedies), and are not subject to any asserted or, to the Best Knowledge of IBG, threatened, defenses, offsets or counterclaims that may reasonably be asserted against IBG, Independent Bank or the present holder thereof. The credit and collateral files of Independent Bank contain all material information (excluding general, local or national industry, economic or similar conditions) actually known to IBG or Independent Bank that is required to evaluate, in accordance with generally prevailing practices in the banking industry, the collectability of the loan portfolio of Independent Bank (including loans that will be outstanding if Independent Bank advances funds it is obligated to advance), except for items identified on Independent Banks internal exception list which has been made available to IBG. All loans classified substandard, doubtful, loss, nonperforming or problem loans internally by management of Independent Bank or any applicable Regulatory Agency (as defined in Section 11.10) are set forth on Independent Banks watch list, which has been made available to CGI.
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Section 4.21. Books and Records . The minute books, stock certificate books and stock transfer ledgers of IBG and Independent Bank have been kept accurately in the ordinary course of business and are complete and correct in all material respects. The transactions entered therein represent bona fide transactions, and there have been no material transactions involving the business of IBG and Independent Bank that properly should have been set forth therein and that have not been accurately so set forth.
Section 4.22. Forms of Instruments, Etc . IBG has made and will make available to CGI copies of all of IBGs standard forms of notes, mortgages, deeds of trust and other routine documents of a like nature used on a regular and recurring basis in the ordinary course of its business.
Section 4.23. Fiduciary Responsibilities . Each of IBG and Independent Bank has performed in all material respects all of its duties as a trustee, custodian, guardian or as an escrow agent in a manner that complies in all material respects with all applicable laws, regulations, orders, agreements, instruments and common law standards, where the failure to so perform would result in a Material Adverse Change. To the Best Knowledge of IBG, there is no reasonable basis for any such Material Adverse Change.
Section 4.24. Bank Secrecy Act, Foreign Corrupt Practices Act and U.S.A. Patriot Act . Independent Bank is in material compliance with the Bank Secrecy Act (12 U.S.C. §§ 1730(d) and 1829(b)), the United States Foreign Corrupt Practices Act and the International Money Laundering Abatement and Anti-Terrorist Financing Act, otherwise known as the U.S.A. Patriot Act, and all regulations promulgated thereunder. Independent Bank has properly certified all foreign deposit accounts and has made all necessary tax withholdings on all of its deposit accounts; furthermore, Independent Bank has timely and properly filed and maintained all requisite Currency Transaction Reports and other related forms, including any requisite Custom Reports required by any agency of the United States Treasury Department, including the IRS. Independent Bank has timely filed all Suspicious Activity Reports with the Financial Institutions Financial Crimes Enforcement Network (U.S. Department of the Treasury) required to be filed by it pursuant to the laws and regulations referenced in this Section.
Section 4.25. Fair Housing Act, Home Mortgage Disclosure Act and Equal Credit Opportunity Act . Independent Bank is in compliance in all material respects with the Fair Housing Act (42 U.S.C. § 3601 et seq.), the Home Mortgage Disclosure Act (12 U.S.C. § 2801 et seq.) and the Equal Credit Opportunity Act (15 U.S.C. § 1691 et seq.) and all regulations promulgated thereunder. Since January 1, 2009, Independent Bank has not received any written notices of any violation of such acts or any of the regulations promulgated thereunder, and it has not received any written notice of any, and to the Best Knowledge of IBG there is no, threatened administrative inquiry, proceeding or investigation with respect to its compliance with such laws.
Section 4.26. Usury Laws and Other Consumer Compliance Laws . All loans of Independent Bank have been made in compliance in all material respects with all applicable statutes and regulatory requirements at the time of such loan or any renewal thereof, including the Texas usury statutes as currently interpreted, Regulation Z (12 C.F.R. § 226 et seq.) issued by the FRB, the Federal Consumer Credit Protection Act (15 U.S.C. § 1601 et seq.), the Texas Consumer Credit Code (Tex. Rev. Civ. Stat. Ann. Art. 5062-2.01, et seq.) and all statutes governing the operation of banks operating in the State of Texas. Each such loan was made by Independent Bank in the ordinary course of its lending business.
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Section 4.27. Representations Not Misleading . No representation or warranty by IBG and Independent Bank contained in this Agreement contains or will contain on the Closing Date any untrue statement of a material fact or omits or will omit on the Closing Date to state a material fact necessary to make the statements contained herein, in light of the circumstances under which they were made, not misleading.
ARTICLE V
COVENANTS OF CGI
CGI covenants and agrees with IBG as follows:
Section 5.01. Commercially Reasonable Efforts . CGI will use commercially reasonable best efforts to cause the consummation of the transactions contemplated hereby in accordance with the terms and conditions of this Agreement.
Section 5.02. Information Furnished by CGI . CGI shall promptly furnish or cause to be furnished to IBG, not more than two (2) business days after CGIs receipt of IBGs written request, all information concerning CGI and UCB, including financial statements, required for inclusion in any statement or application made or filed by IBG to any Governmental Authority in connection with the transactions contemplated by this Agreement. CGI represents and warrants that all information so furnished shall be true and correct in all material respects and shall not omit any material fact required to be stated therein or necessary to make the statements made, in light of the circumstances under which they were made, not misleading. CGI shall otherwise fully cooperate with IBG in the filing of any applications or other documents necessary to consummate the transactions contemplated by this Agreement.
Section 5.03. Affirmative Covenants . Except as otherwise permitted or required by this Agreement, from the date hereof until the Effective Time, CGI shall and shall cause UCB to:
A. Maintain its corporate existence in good standing;
B. Maintain the general character of its business and conduct its business in its ordinary and usual manner;
C. Extend credit only in accordance with existing lending policies and practices;
D. Use commercially reasonable efforts to preserve its business organization intact; to retain the services of its present employees, officers, directors and agents; to retain its present customers, depositors, suppliers and correspondent banks; and to preserve its goodwill and the goodwill of its suppliers, customers and others having business relationships with it;
E. Use commercially reasonable efforts to obtain any approvals or consents required to maintain all existing contracts, leases and documents relating to or affecting its assets, Properties and business;
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F. Maintain all offices, machinery, equipment, materials, supplies, inventories, vehicles and other Properties owned, leased or used by it (whether under its control or the control of others) in good operating repair and condition, ordinary wear and tear excepted;
G. Comply in all material respects with all laws, regulations, ordinances, codes, orders, licenses, and permits applicable to its Properties and operations, the non-compliance with which could be reasonably expected to cause a Material Adverse Change;
H. Timely file all tax returns required to be filed by it and promptly pay all taxes, assessments, governmental charges, duties, penalties, interest and fines that become due and payable, except those being contested in good faith by appropriate proceedings;
I. Withhold from each payment made to each of its employees the amount of all taxes (including federal income taxes, FICA taxes and state and local income and wage taxes) required to be withheld therefrom and pay the same to the proper tax receiving officers;
J. Continue to follow and implement policies, procedures and practices regarding the identification, monitoring, classification and treatment of all assets in substantially the same manner as it has in the past;
K. Account for all transactions in accordance with GAAP (unless otherwise instructed by RAP, in which instance account for such transaction in accordance with RAP) specifically without limitation (i) maintaining the allowance for loan and lease losses account for UCB of at least $1,400,000; and (ii) paying or accruing for by the Calculation Date all liabilities, obligations, costs, and expenses owed or incurred by CGI or UCB on or prior to the Closing Date;
L. Perform all of its material obligations under contracts, leases and documents relating to or affecting its assets, Properties and business, except such obligations as it may in good faith reasonably dispute;
M. Maintain and keep in full force and effect, in all material respects, presently existing insurance coverage and give all notices and present all claims under all insurance policies in due and timely fashion; and
N. Timely file all reports required to be filed with Governmental Authorities and observe and conform, in all material respects, to all applicable laws, rules, regulations, ordinances, codes, orders, licenses and permits, except those being contested in good faith by appropriate proceedings.
Section 5.04. Negative Covenants . From the date of this Agreement through the Closing, without the prior written consent of IBG, CGI shall not and CGI shall cause UCB to not:
A. Introduce any new material method of management or operation;
B. Intentionally take any action that could reasonably be anticipated to result in a Material Adverse Change;
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C. Take or fail to take any action that could reasonably be expected to cause the representations and warranties made in Article III to be inaccurate in any material respect at the time of the Closing or preclude CGI from making such representations and warranties (as modified by the supplemental Schedules) at the time of the Closing;
D. Declare, set aside or pay any dividend or other distribution with respect to its capital stock, other than as part of a Section 1.05(F) Distribution;
E. Enter into, alter, amend, renew or extend any material contract or commitment which would result in an obligation of CGI or UCB to make payments in excess of $25,000, except for loans and extensions of credit in the ordinary course of business which are subject to the provisions of Sections 5.04(Y) and 5.04(Z);
F. Mortgage, pledge or subject to lien, charge, security interest or any other encumbrance or restriction any of its Properties, business or assets, tangible or intangible except in the ordinary course of business and consistent with prudent banking practices;
G. Cause or allow the loss of insurance coverage, unless replaced with coverage which is substantially similar (in amount and insurer) to that in effect as of the date of this Agreement;
H. Incur any indebtedness, obligation or liability, whether absolute or contingent, other than the receipt of deposits and trade debt or except in the ordinary course of business and consistent with prudent banking practices or in connection with the transactions contemplated by this Agreement or any of the agreements or documents contemplated hereby;
I. Discharge or satisfy any lien or pay any obligation or liability, whether absolute or contingent, due or to become due, except in the ordinary course of business and consistent with prudent banking practices;
J. Issue, reserve for issuance, grant, sell or authorize the issuance of any shares of its capital stock or other securities or subscriptions, options, warrants, calls, rights or commitments of any kind relating to the issuance thereto, except to the extent any commitment to do so is outstanding as of the date of this Agreement;
K. Amend or otherwise change its articles of association, charter, or bylaws;
L. Sell, transfer, lease to others or otherwise dispose of any material amount of its assets or Properties, discount or arrange for a pay off of a charged off or deficiency credit, cancel or compromise any material debt or claim, or waive or release any right or claim other than in the ordinary course of business and consistent with prudent banking practices; provided, that any such transaction involving amounts in excess of $100,000 shall be deemed to not be in the ordinary course of business;
M. Enter into any material transaction other than in the ordinary course of business;
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N. Except in the ordinary course of the business and consistent with past practices, enter into or give any promise, assurance or guarantee of the payment, discharge or fulfillment of any undertaking or promise made by any other third person, firm or corporation;
O. Sell or knowingly dispose of, or otherwise divest itself of the ownership, possession, custody or control, of any corporate books or records of any nature that, in accordance with sound business practice, normally are retained for a period of time after their use, creation or receipt, except at the end of the normal retention period;
P. Except for salary increases in the ordinary course of business and consistent with past practices of CGI or UCB or as part of a Section 1.05(F) Distribution, make any material change in the rate of compensation, commission, bonus or other direct or indirect remuneration payable, or pay or agree to or orally promise to pay, conditionally or otherwise, any bonus or extra compensation, pension, severance or vacation pay, to or for the benefit of any of its shareholders, directors, officers or employees, or enter into any employment or consulting contract (other than as contemplated by this Agreement) or other agreement with any director, officer or employee or adopt, amend in any material respect or terminate (other than termination of the Employee Benefit Plans contemplated by this Agreement) any pension, employee welfare, retirement, stock purchase, stock option, stock appreciation rights, termination, severance, income protection, golden parachute, savings or profit-sharing plan (including trust agreements and insurance contracts embodying such plans), any deferred compensation, or collective bargaining agreement, any group insurance contract or any other incentive, welfare or employee benefit plan or agreement maintained by it for the benefit of its directors, employees or former employees;
Q. Engage in any transaction with any Affiliate except in the ordinary course of business and consistent with past practices;
R. Acquire any capital stock or other equity securities or acquire any equity or ownership interest in any bank, corporation, partnership or other entity, except (i) through settlement of indebtedness, foreclosure, or the exercise of creditors remedies or (ii) in a fiduciary capacity, the ownership of which does not expose it to any liability from the business, operations or liabilities of such person;
S. Except as contemplated by this Agreement, terminate, cancel or surrender any contract, lease or other agreement or unreasonably permit any damage, destruction or loss which, in any case or in the aggregate, may reasonably be expected to result in a Material Adverse Change;
T. Dispose of, permit to lapse, transfer or grant any rights under, or knowingly breach or infringe upon, any United States or foreign license or Proprietary Right or materially modify any existing rights with respect thereto, except in the ordinary course of business and consistent with past practices;
U. Make any capital expenditures, capital additions or betterments in excess of an aggregate of $25,000;
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V. Hire or employ any new officer or hire or employ any new non-officer employee, other than to replace non-officer employees;
W. Make any, or acquiesce with any, change in accounting methods, principles or material practices, except as required by GAAP or RAP, including without limitation making any reverse provision for loan losses or other similar entry or accounting method that would reduce the allowance for loan and lease losses of UCB;
X. Pay a rate on deposits at UCB materially higher than is consistent with the ordinary course of business and consistent with past practices;
Y. Make any new loan to a single borrower and his related interests in excess of $100,000; provided that CGI shall provide to IBG a weekly written report of all loans made, renewed, or modified;
Z. Renew, extend the maturity of, or alter the material terms of any loan except in compliance with UCBs existing policies and procedures and consistent with past practices and prudent banking principles;
AA. Renew, extend the maturity of, or alter any of the material terms of any classified loan or extension of credit;
BB. Sell (provided, however, that payment at maturity or prepayment is not deemed a sale) Investment Securities or purchase Investment Securities, other than U.S. Treasuries with a maturity of two years or less; or
CC. Redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock.
Section 5.05. Access; Pre Closing Investigation . CGI shall afford the officers, directors, employees, attorneys, accountants, investment bankers and authorized representatives of IBG full access during regular business hours to all of the books, contracts, commitments, personnel and records of CGI and UCB, and furnish to IBG during such period all such information concerning CGI and UCB and their affairs as IBG may reasonably request, so that IBG may have full opportunity to make such reasonable investigation as it shall desire to make of the affairs of CGI and UCB, including access sufficient to verify the value of the assets and the liabilities of CGI and UCB and the satisfaction of the conditions precedent to IBGs obligations described in Article VIII. CGI agrees at any time, and from time to time, to furnish to IBG as soon as practicable, any additional information that IBG may reasonably request. No investigation by IBG or its representatives shall affect the representations and warranties set forth herein.
Section 5.06. Invitations to and Attendance at Directors and Committee Meetings . CGI shall cause UCB to give notice to one (1) designee of IBG of, and shall invite such designee to attend, all regular and special meetings of the CGI Board and the UCB Board and all regular and special meetings of any senior management committee (including the executive committee and the loan and discount committee of UCB) of CGI and UCB; provided that such designee shall excuse himself from such meetings while this Agreement or the transactions contemplated hereby are being discussed. If the Merger is finally disapproved by any appropriate Regulatory Agency or if this Agreement is terminated pursuant to its terms, IBGs designee will no longer be entitled to notice of and permission to attend such meetings.
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Section 5.07. Additional Financial Statements . CGI shall promptly furnish IBG with true and complete copies of each additional CGI Regulatory Report and UCB Call Report as soon as such reports are available.
Section 5.08. Untrue Representations . CGI shall promptly notify IBG in writing if CGI becomes aware of any fact or condition that makes untrue, or shows to have been untrue, in any material respect, any schedule or any other information furnished to IBG or any representation or warranty made in or pursuant to this Agreement or that results in CGIs failure to comply with any covenant, condition or agreement contained in this Agreement.
Section 5.09. Litigation and Claims . CGI shall promptly notify IBG in writing of any litigation, or of any claim, controversy or contingent liability that is reasonably expected to become the subject of litigation, against CGI or UCB or affecting any of their Properties, if such litigation or potential litigation is reasonably likely, in the event of an unfavorable outcome, to result in a Material Adverse Change. CGI shall promptly notify IBG of any legal action, suit or proceeding or judicial, administrative or governmental investigation, pending or, to the knowledge of CGI, threatened against CGI or UCB that (i) questions or could reasonably be expected to question the validity of this Agreement or the agreements contemplated hereby, or any actions taken or to be taken by CGI or UCB pursuant hereto or (ii) seeks to enjoin or otherwise restrain the transactions contemplated hereby or thereby.
Section 5.10. Adverse Changes . CGI shall promptly notify IBG in writing if any change shall have occurred or, to the Best Knowledge of CGI, been threatened (or any development shall have occurred or, to the Best Knowledge of CGI, been threatened involving a prospective change) in the business, financial condition or operations of CGI and/or UCB that has resulted in or would reasonably be expected to result in a Material Adverse Change.
Section 5.11. No Negotiation with Others . Neither CGI nor any of its Affiliates, employees, directors, officers, financial advisors or agents will (i) solicit, encourage, initiate or participate in any negotiations or discussions with any third party with respect to any offer or proposal to merge with or acquire CGI or all or substantially all the business of CGI, whether by acquisition, purchase of stock or assets or otherwise; (ii) disclose to any third party any information concerning the business, Properties, books or records of CGI or UCB, except in the ordinary course of business for purposes, other than an acquisition or as compelled by law; or (iii) cooperate with any third party to make any proposal to merge with or acquire all or any part of the capital stock or assets of CGI or UCB, other than the sale by CGI or UCB of assets in the ordinary course of business consistent with past practices. Promptly upon receipt of any unsolicited offer, CGI will communicate to IBG the terms of any proposal or request for information and the identity of the parties involved.
Section 5.12. Consents and Approvals . CGI shall use commercially reasonable best efforts to obtain all consents and approvals from Regulatory Authorities and other third parties, including the third party consents listed on Schedule 3.09 , required of CGI and/or UCB in connection with the consummation of the transactions contemplated by this Agreement. CGI will cooperate in all commercially reasonable respects with IBG to obtain all such approvals and consents required of IBG.
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Section 5.13. Environmental Investigation; Right to Terminate Agreement.
A. IBG and its consultants, agents and representatives, at the sole cost and expense of IBG, shall have the right to the same extent that CGI has the right, but not the obligation or responsibility, to inspect any Property, including conducting asbestos surveys and sampling, environmental assessments and investigation, and other environmental surveys and analyses including soil and ground sampling ( Environmental Inspections ). IBG shall notify CGI in writing prior to any Environmental Inspection, and CGI may place reasonable restrictions on the time of such Environmental Inspection. If, as a result of any such Environmental Inspection, further investigation ( Secondary Investigation ) including, test borings, soil, water and other sampling is deemed desirable by IBG, IBG shall (i) notify CGI in writing of any Property for which it intends to conduct such a Secondary Investigation and the reasons for the Secondary Investigation, and (ii) at the sole cost and expense of IBG, commence the Secondary Investigation. IBG shall give reasonable written notice to CGI of the Secondary Investigation, and CGI may place reasonable time and place restrictions on the Secondary Investigation.
B. IBG shall make available to CGI the results and reports of such Environmental Inspections and Secondary Investigations promptly after IBG receives or is advised of such results. IBG shall not have any liability or responsibility of any nature whatsoever for the results, conclusions or other findings related to any Environmental Inspection, Secondary Investigation or other environmental survey. If this Agreement is terminated, except as otherwise required by law, reports to any Governmental Authority of the results of any Environmental Inspection, Secondary Investigation or other environmental survey shall not be made by IBG. IBG shall make no such report prior to Closing unless required to do so by applicable law, and in such case will give CGI reasonable written notice of IBGs intentions.
C. IBG shall have the right to terminate this Agreement if (i) the factual substance of any warranty or representation set forth in Section 3.22 is not materially true and accurate; (ii) the results of such Environmental Inspection, Secondary Investigation or other environmental survey are disapproved by IBG because the Environmental Inspection, Secondary Investigation or other environmental survey identifies material violations or potential material violations of Environmental Laws; (iii) CGI has refused to allow IBG to conduct an Environmental Inspection or Secondary Investigation in a manner that IBG reasonably considers necessary; (iv) the Environmental Inspection, Secondary Investigation or other environmental survey identifies any past or present event, condition or circumstance that would or potentially could reasonably be expected to require a material remedial or cleanup action or result in a Material Adverse Change; (v) the Environmental Inspection, Secondary Investigation or other environmental survey identifies the presence of any underground or above ground storage tank in, on or under any Property that is not shown to be in material compliance with all Environmental Laws applicable to the tank either at the date of this Agreement or at a future time certain, or that has had a release of petroleum or some other Hazardous Material that has not been cleaned up to the satisfaction of the relevant Governmental Authority or any other party with a legal right to compel cleanup; or (vi) the Environmental Inspection, Secondary Investigation or other environmental survey identifies the presence of any asbestos-containing
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material in, on or under any Property, the removal of which could reasonably be expected to result in a Material Adverse Change. IBG shall advise CGI in writing (the Environmental Notice ) as to whether IBG intends to terminate this Agreement because IBG disapproves of the results of the Environmental Inspection, Secondary Inspection or other environmental survey. Upon receipt of the Environmental Notice, CGI shall have the opportunity to correct any objected to violations or conditions to IBGs reasonable satisfaction within 30 days after the date of the Environmental Notice. In the event that CGI fails to demonstrate its satisfactory correction of the violations or conditions to IBG, IBG may terminate the Agreement on the 31st day following the date of the Environmental Notice.
D. CGI agrees to make available to IBG and its consultants, agents and representatives all documents and other material relating to environmental conditions of any Property including the results of other environmental inspections and surveys. CGI also agrees that all engineers and consultants who prepared or furnished such reports may discuss such reports and information with IBG and shall be entitled to certify the same in favor of IBG and its consultants, agents and representatives and make all other data available to IBG and its consultants, agents and representatives.
Section 5.14. Employee Plans . Prior to the Closing Date, CGI shall and shall cause UCB to terminate the Employee Plans subject to compliance with applicable law, so long as any such action preserves the rights of the participants in such Employee Plans (including vesting rights). CGI shall use its best efforts to cause the CGI Stock Obligations to be terminated, satisfied or discharged prior to the Closing Date and shall specifically use its best efforts to cause the individuals set forth in Schedule 5.14 to execute and deliver simultaneously with the execution of this Agreement a Stock Option Termination Agreement in the form attached hereto as Exhibit E .
Section 5.15. Disclosure Schedules . At least three (3) business days prior to the Closing, CGI agrees to provide IBG with supplemental Schedules to be delivered by CGI pursuant to this Agreement reflecting any material changes thereto between the date of this Agreement and the Closing Date.
Section 5.16. Voting Agreement . CGI shall execute and deliver, and shall use its best efforts to cause the directors of CGI and UCB to execute and deliver simultaneously with the execution of this Agreement, the Voting Agreement, in the form attached hereto as Exhibit F , and CGI acknowledges that, upon the execution and delivery of the Voting Agreement, such persons shall have agreed that they will vote the shares of the CGI Stock owned by them in favor of this Agreement and the transactions contemplated hereby, including the Merger, subject to required regulatory approvals.
Section 5.17. Releases . CGI shall use its commercially reasonable best efforts to obtain from each of the directors and executive officers of CGI and UCB a written release executed by such director or executive officer and dated the Closing Date, releasing CGI and UCB from claims arising prior to the Effective Time (the Releases ).
Section 5.18. Other Agreements . CGI will, as soon as practicable after the execution of this Agreement, enter into the Merger Agreement with Newco, and shall perform all of its
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obligations thereunder. CGI shall, and shall cause UCB to, execute and deliver the Merger Agreement, the Bank Merger Agreement and such other agreements, certificates of merger, certificates, and other documents reasonably necessary to effect and evidence the Merger and the Bank Merger, and to take all actions necessary or required to consummate the transactions contemplated thereby.
Section 5.19. Support Agreement . CGI shall use its commercially reasonable best efforts to obtain from each outside director of CGI and UCB a Support Agreement executed by such directors (other than John Jones and Gary Lewis) as of the Closing Date which will include non competition covenants for two years covering Collin, Dallas, Denton and Tarrant Counties, Texas (the Support Agreements ).
Section 5.20. Shareholder Lists . After the date of this Agreement, CGI shall from time to time make available to IBG, upon its request, a list of the CGI shareholders and their addresses, a list showing all transfers of the CGI Stock and such other information as IBG may reasonably request regarding both the ownership and prior transfers of the CGI Stock.
Section 5.21. Shareholders Meeting . The CGI Board shall duly call, give notice of, and cause to be held prior to September 1, 2012 a meeting of its shareholders (the Shareholder Meeting ) and will direct that this Agreement and the transactions contemplated hereby be submitted to a vote at the Shareholder Meeting. Specifically, the CGI Board will present for the consideration of CGI shareholders a proposal to approve and adopt this Agreement, the Merger, the Merger Agreement and the transactions contemplated hereby and thereby. The CGI Board will (i) cause proper notice of the Shareholder Meeting to be given to the CGI shareholders in compliance with applicable law and regulations, (ii) prepare and distribute to the CGI shareholders the Proxy/Information Statement, (iii) recommend by the affirmative vote of the CGI Board a vote in favor of approval of the proposals set forth in this Section 5.21, and (iv) perform such other acts as may reasonably be requested by IBG to ensure that shareholder approval of the proposals set forth in this Section 5.21 are obtained. CGI will provide IBG a draft of the Proxy/Information Statement prior to distribution to CGI shareholders and incorporate the reasonable comments of IBG into the Proxy/Information Statement. CGI shall use its commercially reasonable best efforts to cause each CGI Eligible Shareholder who has timely and properly elected to receive consideration in the form of IBG Stock to sign and deliver the Shareholders Agreement to IBG.
Section 5.22. Conforming Accounting Adjustments . CGI shall, if requested in writing by IBG, consistent with GAAP, immediately prior to Closing, make such accounting entries as CGI may reasonably request in order to conform the accounting records of CGI to the accounting policies and practices of IBG. No such adjustment by CGI or UCB shall of itself constitute or be deemed to be a breach, violation or failure by CGI or UCB to satisfy any representation, warranty, covenant, condition or other provision or constitute grounds for termination of this Agreement by IBG or be an acknowledgment by CGI of any adverse circumstances for purposes of determining whether the conditions to IBGs obligations under this Agreement have been satisfied.
Section 5.23. Cancellation of CGI Warrants . CGI shall use its commercially reasonable best efforts to cause each holder of CGI Warrants, as set forth in Schedule 3.01B , to execute and
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deliver to IBG, on or before the Closing Date, a Warrant Holder Agreement pursuant to which such holders agree that their respective CGI Warrants will be cancelled in consideration of the payment of the Per Share Warrant Holder Consideration.
Section 5.24. D & O Liability Insurance . Contemporaneously with the Closing, CGI and UCB shall purchase an extended reporting period for 3 years under CGIs existing directors and officers liability insurance policy, on terms approved by IBG, for purposes of covering actions occurring prior to the Effective Time. Notwithstanding any other provision of this Agreement, the premiums for such coverage shall be paid by IBG and shall not be deducted in the calculation of CGI Tangible Equity.
Section 5.25. Employment Agreement . CGI shall use its commercially reasonable best efforts to cause (i) John Jones to execute and deliver to IBG, simultaneously with the execution of this Agreement, a consulting agreement providing for a continuing consulting arrangement with Independent Bank following the Merger, and (ii) Gary Lewis to execute and deliver to IBG, simultaneously with the execution of this Agreement, an employment agreement providing for his continued employment with Independent Bank following the Merger.
Section 5.26. Obligations Related to Trust Preferred Securities . CGI will reasonably cooperate with IBG to permit IBG, upon completion of the merger of CGI with and into IBG, to assume expressly the obligations of CGI under the Indentures; but in no event will CGI or its counsel be required to deliver opinions or certificates except as the Trustee may reasonably require with respect to the establishment and status of the Trust and CGIs performance of its obligations before, and not in connection with, the assumption of the obligations by IBG.
ARTICLE VI
COVENANTS OF IBG
IBG hereby makes the covenants set forth in this Article VI to CGI.
Section 6.01. Commercially Reasonable Efforts . IBG agrees to use commercially reasonable best efforts to cause the consummation of the transactions contemplated hereby in accordance with the terms and conditions of this Agreement.
Section 6.02. Untrue Representations . IBG shall promptly notify CGI in writing if IBG becomes aware of any fact or condition that makes untrue, or shows to have been untrue, in any material respect, any schedule or any other information furnished to CGI or any representation or warranty made in or pursuant to this Agreement or that results in IBGs failure to comply with any covenant, condition or agreement contained in this Agreement.
Section 6.03. Affirmative Covenants . Except as otherwise permitted or required by this Agreement, from the date hereof until the Effective Time, IBG shall and shall cause Independent Bank to:
A. Maintain its corporate existence in good standing;
B. Maintain the general character of its business and conduct its business in its ordinary and usual manner;
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C. Extend credit only in accordance with existing lending policies and practices;
D. Use commercially reasonable efforts to preserve its business organization intact; to retain the services of its present employees, officers, directors and agents; to retain its present customers, depositors, suppliers and correspondent banks; and to preserve its goodwill and the goodwill of its suppliers, customers and others having business relationships with it;
Section 6.04. Additional Financial Statements . IBG shall promptly furnish CGI with true and complete copies of each additional IBG Regulatory Report and Independent Bank Call Report as soon as such reports are available.
Section 6.05. Litigation and Claims . IBG shall promptly notify CGI in writing of any litigation, or of any claim, controversy or contingent liability that might reasonably be expected to become the subject of litigation, against IBG or Independent Bank or affecting any of their respective Properties, if such litigation or potential litigation is reasonably likely, in the event of an unfavorable outcome, to result in a Material Adverse Change. IBG shall promptly notify CGI in writing of any legal action, suit or proceeding or judicial, administrative or governmental investigation, pending or, to the knowledge of IBG, threatened against IBG or Independent Bank that (i) questions or could reasonably be expected to question the validity of this Agreement or the agreements contemplated hereby or any actions taken or to be taken by IBG with respect hereto or thereto or (ii) seeks to enjoin or otherwise restrain the transactions contemplated hereby or thereby.
Section 6.06. Regulatory and Other Approvals . With the cooperation of CGI, IBG shall promptly file or cause to be filed applications for all regulatory approvals required to be obtained by IBG, UCB and Newco in connection with this Agreement and the transactions contemplated hereby, including to the necessary applications for the prior approval of the Merger by the Federal Reserve (or appropriate Federal Reserve Bank acting on delegated authority), the Texas Department of Banking and the FDIC. Such applications shall be filed by July 31, 2012. IBG shall use commercially reasonable best efforts to obtain all such regulatory approvals and any other approvals from third parties at the earliest practicable time. IBG shall keep CGI reasonably informed as to the status of such applications and filings, and IBG shall promptly furnish CGI and its counsel with copies of all such regulatory filings and all correspondence for which confidential treatment has not been requested.
Section 6.07. Formation and Organization of Newco . IBG will duly form and organize Newco as a Texas corporation.
Section 6.08. Other Agreements . IBG will, as soon as practicable after the execution of this Agreement, cause Newco to enter into the Merger Agreement with CGI, and to perform all of its obligations thereunder. IBG shall, and shall cause Independent Bank and Newco to, take such actions and to execute and deliver the Merger Agreement, the Bank Merger Agreement, the Subsequent Merger Agreement, and such other agreements, certificates of merger, certificates, and other documents reasonably necessary to effect and evidence the Merger, the Bank Merger and the Subsequent Merger, and to take any and all actions necessary or required to consummate the transactions contemplated thereby .
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Section 6.09. Employee Matters . On the Closing Date, IBG may, but shall not be required to, cause IBG to offer employment to the employees of UCB. Each of the employees of UCB who become an employee of IBG after the Effective Time shall be entitled to receive, from and after the Effective Time, the same pension, profit sharing, health, welfare, incentive, vacation and other benefits as are customarily offered or afforded to the employees of IBG. Each of the employees of UCB who becomes an employee of IBG after the Effective Time shall receive credit for their prior service at UCB for purposes of vesting, eligibility or any other purpose under the employee benefit plans of IBG; and such persons shall not have lack of coverage for pre-existing conditions or be subject to any additional deductibles or waiting periods otherwise required for health insurance coverage. IBG shall, within 30 calendar days of the date of this Agreement, provide CGI with a list of employees of UCB to whom IBG will not offer employment.
Section 6.10. Adverse Changes . IBG shall promptly notify CGI in writing if any change shall have occurred or been threatened (or any development shall have occurred or been threatened involving a prospective change) in the business, financial condition, or operations of IBG and/or Independent Bank that has or may reasonably be expected to have to result in a Material Adverse Change or lead to a failure to obtain necessary regulatory approval of this transaction.
Section 6.11. Disclosure Schedules . At least three (3) business days prior to the Closing, IBG agrees to provide CGI with supplemental disclosure Schedules to be delivered by IBG pursuant to this Agreement reflecting any material changes thereto between the date of this Agreement and the Closing Date.
ARTICLE VII
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF CGI
The obligations of CGI under this Agreement are subject to the satisfaction, prior to or at the Closing, of each of the following conditions, which may be waived in whole or in part by CGI:
Section 7.01. Representations and Warranties . All representations and warranties made by IBG in this Agreement or in any document or schedule delivered to CGI in connection with this Agreement shall have been true and correct when made and shall be true and correct in all material respects as of the Closing with the same force and effect as if such representations and warranties were made at and as of the Closing, except with respect to those representations and warranties specifically made as of an earlier date (in which case such representations and warranties shall be true and correct as of such earlier date).
Section 7.02. Performance of Obligations . IBG shall have, or shall have caused to be, performed or complied with, in all material respects, all agreements, terms, covenants and conditions required by this Agreement to be performed or complied with by IBG at or prior to the Closing.
Section 7.03. Government and Other Approvals . IBG shall have received approval by such Governmental Authorities as may be required by applicable law of the transactions
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contemplated by this Agreement, the Merger Agreement and the Subsequent Merger Agreement, and all applicable waiting periods prescribed by applicable law or regulation shall have expired. Such approvals and the transactions contemplated hereby shall not have been contested or threatened to be contested by any Governmental Authority or by any other third party (except shareholders asserting statutory dissenters appraisal rights) by formal proceedings.
Section 7.04. No Litigation . No action shall have been taken, and no statute, rule, regulation or order shall have been promulgated, enacted, entered, enforced or deemed applicable to this Agreement, the Merger Agreement, the Bank Merger Agreement, the Subsequent Merger Agreement or the transactions contemplated hereby or thereby by any Governmental Authority, including by means of the entry of a preliminary or permanent injunction, that would (A) make this Agreement or any other agreement contemplated hereby or thereby, or the transactions contemplated hereby or thereby, illegal, invalid or unenforceable, (B) impose material limits on the ability of any party to this Agreement to consummate this Agreement or any other agreement contemplated hereby, or the transactions contemplated hereby or thereby, or (C) if the consummation of this Agreement or any other agreement contemplated hereby, or the transactions contemplated hereby or thereby, subject or could reasonably be expected to subject CGI or UCB, or any of their respective officers, directors, shareholders or employees, to criminal or civil liability. No action or proceeding by or before any Governmental Authority or by any other person shall be threatened, instituted or pending that could reasonably be expected to result in any of the consequences referred to in clauses (A) through (C) above.
Section 7.05. Delivery of Closing Documents . CGI shall have received all documents required to be delivered by IBG, Independent Bank and Newco on or prior to the Closing Date as set forth in Section 2.03, all in form and substance reasonably satisfactory to CGI.
Section 7.06. Shareholder Approvals . This Agreement, the Merger, and the Merger Agreement shall have been approved by the affirmative vote of the holders of the percentage of the outstanding shares of CGI Stock required for approval of this Agreement, the Merger, and the Merger Agreement in accordance with the Articles of Incorporation of CGI and the TBOC.
ARTICLE VIII
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF IBG
The obligations of IBG under this Agreement are subject to the satisfaction, prior to or at the Closing, of each of the following conditions, which may be waived in whole or in part by IBG.
Section 8.01. Representations and Warranties . All representations and warranties made by CGI in this Agreement or in any schedule delivered to IBG pursuant hereto shall have been true and correct when made and shall be true and correct in all material respects as of the Closing with the same force and effect as if such representations and warranties were made at and as of the Closing, except with respect to those representations and warranties specifically made as of an earlier date (in which case such representations and warranties shall be true as of such earlier date) or changes or updates contemplated by this Agreement.
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Section 8.02. Performance of Obligations . CGI shall have performed or complied with, in all material respects, all agreements, terms, covenants and conditions required by this Agreement to be performed or complied with by CGI prior to or at the Closing.
Section 8.03. Delivery of Closing Documents . IBG shall have received all documents required to be delivered by CGI on or prior to the Closing Date as set forth in Section 2.02, all in form and substance reasonably satisfactory to IBG.
Section 8.04. Government and Other Approvals . IBG shall have received approvals and consents, on terms and conditions reasonably acceptable to IBG, as may be required (A) by applicable law from all applicable Governmental Authorities, including the Federal Reserve, the Federal Deposit Insurance Corporation ( FDIC ) and the Texas Department of Banking, and (B) from all third parties, in each case, in connection with this Agreement and any other agreement contemplated hereby, and with the consummation of the transactions contemplated hereby and thereby, and all applicable waiting periods shall have expired. Such approvals and consents shall not have imposed, in the reasonable judgment of IBG, any material requirement upon IBG or the IBG Subsidiaries, including any requirement that IBG sell or dispose of any significant amount of its assets or any IBG Subsidiary. Neither such approvals or consents, nor any of the transactions contemplated hereby, shall have been contested or threatened to be contested by any Governmental Authority or by any other third party (except shareholders asserting statutory dissenters appraisal rights) by formal proceedings. It is understood that, if such contest is brought by formal proceedings, IBG may, but shall not be obligated to, answer and defend such contest or otherwise pursue this transaction over such objection.
Section 8.05. No Litigation . No action shall have been taken, and no statute, rule, regulation or order shall have been promulgated, enacted, entered, enforced or deemed applicable to this Agreement, the Merger Agreement, the Bank Merger Agreement or the Subsequent Merger Agreement, or the transactions contemplated hereby or thereby, by any Governmental Authority, including by means of the entry of a preliminary or permanent injunction, that would (A) make this Agreement or any other agreement contemplated hereby, or the transactions contemplated hereby or thereby, illegal, invalid or unenforceable, (B) require the divestiture of a material portion of the assets of CGI, (C) impose material limits on the ability of any party to this Agreement to consummate the Agreement or any other agreement contemplated hereby, or the transactions contemplated hereby or thereby, (D) otherwise result in a Material Adverse Change, or (E) if the consummation of this Agreement or any other agreement contemplated hereby, or the transactions contemplated hereby or thereby, subject or could reasonably be expected to subject IBG or any IBG Subsidiaries, or any officer, director, shareholder or employee of IBG or any IBG Subsidiaries, to criminal or civil liability. No action or proceeding by or before any Governmental Authority or by any other person shall be threatened, instituted or pending that would reasonably be expected to result in any of the consequences referred to in clauses (A) through (E) above.
Section 8.06. No Material Adverse Change . There shall have been no Material Adverse Change in CGI or UCB since March 31, 2012.
Section 8.07. Minimum CGI Tangible Equity and ALLL . As of the Closing Date, the CGI Tangible Equity, after any Section 1.05(F) Distribution, shall be at least $7,050,000. If the
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CGI Tangible Equity is less than $7,050,000 on the Closing Date, then solely for purposes of determining whether this condition has been satisfied, any unrecognized gain in the AFS Securities as of the Closing Date shall be included in the calculation of the CGI Tangible Equity up to an amount equal to the difference between (i) $7,050,000, less (ii) the actual amount of CGI Tangible Equity on the Closing Date. As of the Closing Date, the Allowance for Loan and Lease Losses of UCB shall be at least $1,400,000.
Section 8.08. Shareholder Approvals . The holders of at least the minimum number of shares of the CGI Stock necessary under applicable law to approve this Agreement, the Merger, the Merger Agreement, and all other agreements contemplated hereby, shall have approved this Agreement, the Merger, the Merger Agreement, and all other agreements contemplated hereby, and the holders of no more than five percent of the shares of CGI Stock shall have exercised their statutory dissenters rights under the TBOC.
Section 8.09. Termination of Employee Benefit Plans . All Employee Plans shall have been terminated in accordance with the respective terms of such Employee Plans, the Code, ERISA and all other applicable laws and regulations and the affected participants shall have been notified of such terminations. All of the CGI Stock Obligations shall have been terminated.
Section 8.10. Releases, Support Agreements, and Resignations . IBG shall have received executed Releases and Support Agreements as provided in Sections 5.17 and 5.19, respectively, and the resignations of each of the directors of CGI and UCB, effective as of the Closing Date.
ARTICLE IX
TERMINATION AND ABANDONMENT
Section 9.01. Right of Termination . This Agreement and the transactions contemplated hereby may be terminated at any time prior to the Effective Time (except as otherwise set forth in this Section 9.01), whether before or after approval by the CGI shareholders as follows, and in no other manner:
A. By the mutual written consent of CGI and IBG, duly authorized by the CGI Board and the IBG Board, respectively.
B. By either CGI or IBG (provided that the terminating party is not in material breach of any representation, warranty, covenant or other agreement contained herein) if the conditions precedent to such partys obligations to close specified in ARTICLES VII and VIII, respectively, shall not have been satisfied on or before November 30, 2012; provided, however if conditions precedent have not been satisfied because approval of this Agreement or any other agreement contemplated hereby has not been received from any Regulatory Agency whose approval is required to consummate such transactions, either CGI or IBG can unilaterally extend such deadline by up to 30 days by providing written notice thereof to the other.
C. By either IBG or CGI if any of the transactions contemplated by this Agreement or any other agreement contemplated hereby are disapproved by any Regulatory Agency whose approval is required to consummate such transactions or if any Governmental Authority shall have issued an order, decree or ruling or taken any other action restraining, enjoining, invalidating or otherwise prohibiting this Agreement or any other agreement contemplated hereby, or the transactions contemplated hereby or thereby and such order, decree, ruling or other action shall have been final and nonappealable.
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D. By IBG if it reasonably determines, in good faith and after consulting with counsel, there is substantial likelihood that any necessary regulatory approval will not be obtained or will be obtained only upon a condition or conditions that make it inadvisable to proceed with the transactions contemplated by this Agreement or any other agreement contemplated hereby.
E. By IBG if there shall have been any Material Adverse Change in CGI or UCB.
F. By IBG, if CGI shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement or any other agreement contemplated hereby, and such failure shall not have been cured within a period of thirty (30) calendar days after written notice from IBG.
G. By CGI, if IBG shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement or any other agreement contemplated hereby, and such failure shall not have been cured within a period of thirty (30) calendar days after written notice from CGI.
H. By IBG, in accordance with the provisions of Section 5.13 (Environmental Investigation)
Section 9.02. Notice of Termination . The power of termination provided for by Section 9.01 may be exercised only by a notice given in writing, as provided in Section 11.07.
Section 9.03. Effect of Termination . In the event of the termination and abandonment of this Agreement pursuant to the provisions of Sections 9.01A, 9.01B, 9.01C, 9.01D, 9.01E, or 9.01H, no party to this Agreement shall have any further liability or obligation in respect of this Agreement, except that the provisions of ARTICLE X, this Section 9.03, Section 11.01 and Section 11.02 shall survive any termination and abandonment of the Agreement. In the event of the termination of this Agreement pursuant to the provisions of Sections 9.01F or 9.01G, the non breaching party shall be entitled to all remedies available to it at law or in equity.
ARTICLE X
CONFIDENTIAL INFORMATION
Section 10.01. Definition of Recipient, Disclosing Party and Representative . For purposes of this Article X, the term Recipient shall mean the party receiving the Subject Information (as such term is defined in Section 10.02) and the term Disclosing Party shall mean the party furnishing the Subject Information. The terms Recipient or Disclosing Party, as used herein, include: (A) all persons and entities related to or affiliated in any way with the Recipient or the Disclosing Party, as the case may be, and (B) any Affiliate the Recipient or the Disclosing Party, as the case may be. The term Representative , as used herein, shall include all directors, officers, shareholders, employees, representatives, advisors, attorneys, accountants and agents of the Recipient or the Disclosing Party, as the case may be. The term person as used in this Article X shall be broadly interpreted to include, without limitation, any corporation, company, group, partnership, Governmental Authority or individual.
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Section 10.02. Definition of Subject Information . For purposes of this Article X, the term Subject Information shall mean all information furnished to the Recipient or its Representatives (whether prepared by the Disclosing Party, its Representatives or otherwise and whether or not identified as being non public, confidential or proprietary) by or on behalf of the Disclosing Party or its Representatives relating to or involving the business, operations or affairs of the Disclosing Party or otherwise in possession of the Disclosing Party. The term Subject Information shall not include information that (A) was already in the Recipients possession at the time it was first furnished to Recipient by or on behalf of Disclosing Party, provided that such information is not known by the Recipient to be subject to another confidentiality agreement with or other obligation of secrecy to the Disclosing Party, its Subsidiaries or another party, or (B) becomes generally available to the public other than as a result of a disclosure by the Recipient or its Representatives, or (C) becomes available to the Recipient on a non confidential basis from a source other than the Disclosing Party, its Representative or otherwise, provided that such source is not known by the Recipient to be bound by a confidentiality agreement with or other obligation of secrecy to the Disclosing Party, its Representative or another party.
Section 10.03. Confidentiality . Each Recipient hereby agrees that the Subject Information will be used solely for the purpose of reviewing and evaluating the transactions contemplated by this Agreement and any other agreement contemplated hereby, and that the Subject Information will be kept confidential by the Recipient and the Recipients Representatives; provided, however , that (A) any of such Subject Information may be disclosed to the Recipients Representatives (including the Recipients accountants, attorneys and investment bankers) who need to know such Subject Information for the purpose of evaluating any such possible transaction between the Disclosing Party and the Recipient (it being understood that such Representatives shall be informed by the Recipient of the confidential nature of such Subject Information and that the Recipient shall direct and cause such persons to treat such Subject Information confidentially); (B) any of such Subject Information may be disclosed by a Recipient who has been ordered by a court to do so or is required by law to do so provided Recipient has notified the Disclosing Party prior to such disclosure and cooperates with the Disclosing Party if the Disclosing Party elects to pursue legal means to contest and avoid the disclosure; and (C) any disclosure of such Subject Information may be made to which the Disclosing Party expressly consents in writing prior to any such disclosure by Recipient. Each Recipient hereby agrees that it will not use the Subject Information to solicit customers from the Disclosing Party.
Section 10.04. Securities Law Concerns . Each Recipient hereby acknowledges that the Recipient is aware, and the Recipient will advise the Recipients Representatives who are informed as to the matters that are the subject of this Agreement, that the United States securities laws prohibit any person who has received material, non public information from an issuer of securities from purchasing or selling securities of such issuer or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.
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Section 10.05. Return of Subject Information . In the event of termination of this Agreement, for any reason, the Recipient shall promptly return to the Disclosing Party all written material containing or reflecting any of the Subject Information, other than information contained in any application, notice or other document filed with any Governmental Authority and not returned to the Recipient by such Governmental Authority. In making any such filing, the Recipient will request confidential treatment of such Subject Information included in any application, notice or other document filed with any Governmental Authority.
ARTICLE XI
MISCELLANEOUS
Section 11.01. No Survival of Representations and Warranties . The parties hereto agree that all of the representations, warranties and covenants contained in this Agreement shall terminate and be extinguished at Closing, except for those covenants that specifically require performance after the Closing. Nothing in this Section 11.01 shall limit or otherwise affect the remedies available to IBG with respect to a cause of action arising out of an intentional misrepresentation against the person who made such intentional misrepresentation.
Section 11.02. Expenses . Except as specifically provided in this Agreement, all costs and expenses incurred in connection with this Agreement and all agreements and documents contemplated hereby, and the consummation of the transactions contemplated hereby and thereby, shall be borne and paid by the party incurring such costs or expenses.
Section 11.03. Brokerage Fees and Commissions . IBG hereby represents to CGI that no agent, representative or broker has represented IBG or Independent Bank in connection with the transactions described in this Agreement. CGI shall not have any responsibility or liability for any fees, expenses or commissions payable to any agent, representative or broker of IBG or Independent Bank, and IBG hereby agrees to indemnify and hold harmless CGI for any amounts owed to any agent, representative or broker of IBG or Independent Bank. CGI hereby represents to IBG that no agent, representative or broker has represented CGI or UCB in connection with the transactions described in this Agreement. IBG shall have no responsibility or liability for any other fees, expenses or commissions payable to any agent, representative or broker of CGI or UCB and CGI hereby agrees to indemnify and hold harmless IBG for any amounts owed to any other agent, representative or broker of CGI or UCB.
Section 11.04. Entire Agreement . This Agreement (including the documents and instruments referred to herein) and the other agreements, documents, schedules and instruments executed and delivered by the parties to each other at the Closing constitute the full understanding of the parties, a complete allocation of risks between them and a complete and exclusive statement of the terms and conditions of their agreement relating to the subject matter hereof, and supersede any and all prior agreements, whether written or oral, that may exist between the parties with respect thereto. Except as otherwise specifically provided in this Agreement, no conditions, usage of trade, course of dealing or performance, understanding or agreement purporting to modify, vary, explain or supplement the terms or conditions of this Agreement shall be binding unless hereafter or contemporaneously herewith made in writing and signed by the party to be bound, and no modification shall be effected by the acknowledgment or acceptance of documents containing terms or conditions at variance with or in addition to those set forth in this Agreement.
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Section 11.05. Further Cooperation . The parties agree that they will, at any time and from time to time after the Closing, upon request by the other and without further consideration, do, perform, execute, acknowledge and deliver all such further acts, deeds, assignments, assumptions, transfers, conveyances, powers of attorney, certificates and assurances as may be reasonably required in order to fully consummate the transactions contemplated hereby in accordance with this Agreement or to carry out and perform any undertaking made by the parties hereunder.
Section 11.06. Severability . If any term or other provision of this Agreement is held to be illegal, invalid or unenforceable by any rule of law or public policy, such term or provision shall be fully severable and this Agreement shall be construed and enforced as if such illegal, invalid or unenforceable provision were not a part hereof, and all other conditions and provisions of this Agreement shall remain in full force and effect. Upon such determination that any term or other provision is invalid, illegal or unenforceable, there shall be added automatically as a part of this Agreement a provision as similar in terms to such illegal, invalid or unenforceable provision as may be possible and still be legal, valid and enforceable. If any provision of this Agreement is so broad as to be unenforceable, the provision shall be interpreted to be only as broad as is enforceable.
Section 11.07. Notices . All payments (other than payments at the Closing), notices, requests, claims, demands, instructions and other communications required or permitted to be given under this Agreement after the date hereof by any party hereto to any other party shall be in writing; and may be delivered personally, by nationally-recognized overnight courier service, by United States mail, or by e-mail or facsimile transmission, to such party at the address or transmission numbers set forth below:
A. If given to CGI, or to an officer thereof, in such officers official capacity, at CGIs mailing address or transmission number set forth below (or such address or transmission number as CGI may give notice to IBG by like notice):
Mr. John Jones
Chairman of the Board
The Community Group, Inc.
2100 FM 407
Highland Village, Texas 75077
Email: jjones@kinsmanventures.com
with a copy (which shall not constitute notice) to:
Sanford (Sandy) M. Brown, Esq.
Bracewell & Giuliani
1445 Ross Avenue, Suite 3800
Dallas, Texas 75202
Email: Sanford.Brown@bgllp.com
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B. If given to IBG, or to an officer thereof, in such officers official capacity, at IBGs mailing address or transmission number set forth below (or such address or transmission number as IBG may give notice to CGI by like notice):
Mr. David Brooks
Independent Bank Group, Inc.
1600 Redbud Blvd., Suite 400
McKinney, TX 75069
Facsimile: 972-562-5496
Email: drbrooks@independent-bank.com
with a copy (which shall not constitute notice) to:
Mark Haynie, Esq.
Haynie Rake & Repass, P.C.
14643 Dallas Parkway, Suite 550
Dallas, Texas 75254
Facsimile: (972) 716-1850
Email: mark@hrrpc.com
Any notice given pursuant to this Agreement shall be effective (i) in the case of personal delivery, e-mail or facsimile transmission, when received; (ii) in the case of mail, upon the earlier of actual receipt or three (3) business days after deposit with the United States Postal Service, first class certified or registered mail, postage prepaid, return receipt requested; and (iii) in the case of nationally-recognized overnight courier service, one (1) business day after delivery to the courier service together with all appropriate fees or charges and instructions for overnight delivery.
Section 11.08. GOVERNING LAW; VENUE . THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF EACH OF THE PARTIES SUBJECT TO THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS WITHOUT REGARD TO THE LAWS THAT MIGHT OTHERWISE GOVERN UNDER APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS. IN THE EVENT OF A DISPUTE ARISING UNDER OR RELATED TO THIS AGREEMENT, THE PARTIES IRREVOCABLY AGREE THAT VENUE FOR SUCH DISPUTE SHALL LIE EXCLUSIVELY IN ANY COURT OF COMPETENT JURISDICTION IN COLLIN COUNTY, TEXAS.
Section 11.09. Multiple Counterparts; Electronic Transmission . For the convenience of the parties hereto, this Agreement may be executed in one or more counterparts, each of which shall be deemed an original, and all counterparts hereof so executed by the parties hereto, whether or not such counterpart shall bear the execution of each of the parties hereto, shall be deemed to be, and shall be construed as, one and the same Agreement. An e-mail, facsimile or other electronic transmission of a signed counterpart of this Agreement shall be sufficient to bind the party or parties whose signature(s) appear thereon.
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Section 11.10. Certain Definitions .
A. Affiliate means any business entity, bank, or person that, directly or indirectly, controls, is controlled by, or is under common control with, such person in question. For the purposes of this definition, control (including, with correlative meaning, the terms controlled by and under common control with) as used with respect to any business entity, bank, or person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such person, whether through the ownership of voting securities or by contract or otherwise.
B. Best Knowledge means the actual knowledge of executive officers of IBG or CGI, as applicable, with respect to a particular matter, after reasonable inquiry.
C. Environmental Laws means any applicable federal, state, or local laws or regulations, codes, or ordinances, now in effect and in each case as amended to date, including any judicial or administrative order, consent decree, judgment relating to pollution or protection of public or employee health or safety or the environment, including without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq.; the Hazardous Materials Transportation Authorization Act, as amended 49 U.S.C. § 5101, et. seq.; the Resource Conservation and Recovery Act of 1976, as amended, 42 U.S.C. § 6901, et. seq.; the Federal Water Pollution Control Act, as amended, 33 U.S.C. §1201, et. seq.; the Toxic Substances Control Act, 15 U.S.C. § 2601, et. seq.; the Clean Air Act, 42 U.S.C. §7401, et. seq.; and the Safe Drinking Water Act, 42 U.S.C. § 300f. et. seq.
D. Governmental Authority means any United States or foreign federal, state or local court, administrative agency, commission or other governmental authority, Regulatory Agency or instrumentality thereof, in each case, of competent jurisdiction.
E. Hazardous Material means any pollutant, contaminant, chemical, or toxic or hazardous substance, constituent, material or waste, or any other chemical, substances, constituent or waste including petroleum, including crude oil or any fraction thereof, or any petroleum product, defined as or included in the definition of hazardous substances, hazardous wastes, hazardous materials, extremely hazardous wastes, restricted hazardous wastes, toxic substances, toxic pollutants, contaminants, or pollutants, or words of similar import, under any Environmental Laws, or which is in any way regulated as hazardous or toxic by any federal, state or local government authority, agency or instrumentality, including mixtures thereof with other materials, and including any regulated building materials such as asbestos and lead, provided, notwithstanding the foregoing or any other provision in this Agreement to the contrary, the words Hazardous Material shall not mean or include any such Hazardous Material used, generated, manufactured, stored, disposed of or otherwise handled in normal quantities in the ordinary course of the business of the Bank in compliance with all Environmental Laws, or such that may be naturally occurring in any ambient air, surface water, ground water, land surface or subsurface strata.
F. Investment Securities means a security held by UCB and reflected as an asset of UCB in accordance with RAP.
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G. Material Adverse Change means any material adverse change in the financial condition, assets, properties, liabilities (absolute, accrued, contingent or otherwise), reserves, business or results of operations other than, in each case, any change, circumstance, event or effect relating to (i) any change occurring after the date hereof in any federal or state law, rule or regulation, which change affects banking institutions and their holding companies generally, including any change affecting the Deposit Insurance Fund administered by the FDIC, or (ii) changes in general economic, legal, regulatory or political conditions affecting financial institutions generally, including changes in interest rates.
H. Property or Properties means all real property owned or leased by CGI or UCB, including to properties that UCB has foreclosed on as well as their respective premises and all improvements and fixtures thereon.
I. Regulatory Agency means (i) the Securities and Exchange Commission, (ii) any self-regulatory organization, (iii) the Board of Governors of the Federal Reserve System, (iv) the Federal Deposit Insurance Corporation, (v) Texas Department of Banking, (vi) the Office of the Comptroller of the Currency, or (vii) any other federal or state governmental or regulatory agency or authority.
J. Subsidiary means, when used with reference to any entity, any corporation, a majority of the outstanding voting securities of which are owned, directly or indirectly, by such entity or any partnership, joint venture or other enterprise in which such entity has, directly or indirectly, any equity interest.
Section 11.11. Specific Performance . Each of the parties hereto acknowledges that the other party would be irreparably damaged and would not have an adequate remedy at law for money damages in the event that any of the covenants contained in this Agreement were not performed in accordance with its terms or otherwise were materially breached. Each of the parties hereto therefore agrees that, without the necessity of proving actual damages or posting bond or other security, the other party shall be entitled to seek temporary and/or permanent injunction or injunctions to prevent breaches of such performance and to specific enforcement of such covenants in addition to any other remedy to which such other party may be entitled, at law or in equity.
Section 11.12. Attorneys Fees and Costs . In the event attorneys fees or other costs are incurred to secure performance of any of the obligations herein provided for, or to establish damages for the breach thereof, or to obtain any other appropriate relief, whether by way of prosecution or defense, the prevailing party shall be entitled to recover reasonable attorneys fees and costs incurred therein.
Section 11.13. Rules of Construction . When a reference is made in this Agreement to an Article, Section, Exhibit or Schedule, such reference shall be to an Article or Section of, or an Exhibit or Schedule to, this Agreement unless otherwise indicated. The table of contents and headings contained in this Agreement are for convenience of reference only and shall not affect in any way the meaning or interpretation of this Agreement. Whenever the words include, includes or including are used in this Agreement, they shall be deemed to be followed by the words without limitation. The words hereof, herein and hereunder and words of similar
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import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision in this Agreement. Each use herein of the masculine, neuter or feminine gender shall be deemed to include the other genders. Each use herein of the plural shall include the singular and vice versa, in each case as the context requires or as is otherwise appropriate. The word or is used in the inclusive sense. Any agreement, instrument or statute defined or referred to herein or in any agreement or instrument that is referred to herein means such agreement, instrument or statute as from time to time amended, modified or supplemented, including (in the case of agreements or instruments) by waiver or consent and (in the case of statutes) by succession of comparable successor statutes and references to all attachments thereto and instruments incorporated therein. References to a person are also to its permitted successors or assigns.
Section 11.14. Binding Effect; Assignment . All of the terms, covenants, representations, warranties and conditions of this Agreement shall be binding upon, and inure to the benefit of and be enforceable by, the parties hereto and their respective heirs, successors, representatives and permitted assigns. Nothing expressed or referred to herein is intended or shall be construed to give any person other than the parties hereto any legal or equitable right, remedy or claim under or in respect of this Agreement, or any provision herein contained, it being the intention of the parties hereto that this Agreement, the assumption of obligations and statements of responsibilities hereunder, and all other conditions and provisions hereof are for the sole benefit of the parties to this Agreement and for the benefit of no other person. Nothing in this Agreement shall act to relieve or discharge the obligation or liability of any third party to any party to this Agreement, nor shall any provision give any third party any right of subrogation or action over or against any party to this Agreement. No party to this Agreement shall assign this Agreement, by operation of law or otherwise, in whole or in part, without the prior written consent of the other party. Any assignment made or attempted in violation of this Section 11.14 shall be void and of no effect.
Section 11.15. Public Disclosure. None of IBG, Independent Bank, CGI or UCB will make, issue or release, or cause to be made, issued or released, any announcement, statement, press release, acknowledgment or other public disclosure of the existence, terms, conditions or status of this Agreement or the transactions contemplated hereby without the prior written consent of the other parties to this Agreement. Notwithstanding the foregoing, IBG and CGI, upon prior notice to the other party, will be permitted to make (i) disclosure to their own officers, directors, employees and shareholders, and (ii) any public disclosures or governmental filings as legal counsel may deem necessary to maintain compliance with or to prevent violations of applicable federal or state laws or regulations or that may be necessary to obtain regulatory approval for the transactions contemplated hereby.
Section 11.16. Extension; Waiver . At any time prior to the Closing Date, the parties hereto, by action taken or authorized by their respective boards of directors, may, to the extent legally allowed, (i) extend the time for the performance of any of the obligations or other acts of the other party hereto, (ii) waive any inaccuracies in the representations and warranties contained herein or in any document, certificate or writing delivered pursuant hereto or (iii) waive compliance with any of the agreements or conditions contained herein. Any agreement on the part of a party hereto to any such extension of waiver shall be valid only if set forth in a written instrument signed on behalf of such party in the manner provided in Section 11.17, but such
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extension or waiver or failure to insist on strict compliance with an obligation, covenant, agreement or condition shall not operate as a waiver of, or estoppel with respect to, any subsequent or other failure. No party to this Agreement shall by any act (except by a written instrument given pursuant to Section 11.17) be deemed to have waived any right or remedy hereunder or to have acquiesced in any breach of any of the terms and conditions hereof. No failure to exercise, nor any delay in exercising any right, power or privilege hereunder by any party hereto shall operate as a waiver thereof. No single or partial exercise of any right, power or privilege hereunder shall preclude any other or further exercise thereof or the exercise of any other right, power or privilege. A waiver of any party of any right or remedy on any one occasion shall not be construed as a bar to any right or remedy that such party would otherwise have on any future occasion or to any right or remedy that any other party may have hereunder.
Section 11.17. Amendments . This Agreement may be amended by the parties hereto, by action taken or authorized by their respective boards of directors, at any time before or after approval of this Agreement by the CGI shareholders; provided, however, that after the approval of this Agreement by the CGI shareholders, there shall not be, without the further approval of the CGI shareholders, any amendment of this Agreement that decreases the consideration to be paid for the CGI Stock pursuant to Section 1.05 that materially and adversely affects the rights of the CGI shareholders hereunder. This Agreement may not be amended except by an instrument in writing signed on behalf of each of the parties hereto.
Section 11.18. Delivery of Schedules . In order to provide for the prompt execution of this Agreement, the parties hereto agree that with respect to the Schedules to this Agreement:
A. CGI shall deliver full and complete originals of all of the Schedules described in this Agreement to IBG within five (5) business days after the date of this Agreement.
B. IBG will have two (2) business days after receipt of the Schedules to this Agreement to review such Schedules to determine whether they are in form and substance satisfactory to IBG in its sole discretion. If such Schedules are satisfactory, then this Agreement shall remain in full force and effect and the parties shall proceed in accordance with their respective rights and obligations hereunder. If such Schedules are not satisfactory to IBG, in its sole discretion, IBG shall immediately notify CGI and CGI shall have one (1) business day to cure any identified objections and deliver revised Schedules to IBG. If, after such revised Schedules, if any, have been delivered to IBG and if such revised Schedules are not satisfactory to IBG, in its sole discretion, IBG shall have the unconditional right to terminate this Agreement and all of its obligations hereunder by providing CGI notice of such termination no later than 5:00 p.m., Dallas, Texas time on the second business day after receipt of the Schedules, or the revised Schedules, as applicable.
C. IBG shall deliver full and complete originals of all of the Schedules described in this Agreement to CGI within five (5) business days after the date of this Agreement.
D. CGI will have two (2) business days after receipt of the Schedules to this Agreement to review such Schedules to determine whether they are in form and substance
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satisfactory to CGI in its sole discretion. If such Schedules are satisfactory, then this Agreement shall remain in full force and effect and the parties shall proceed in accordance with their respective rights and obligations hereunder. If such Schedules are not satisfactory to CGI, in its sole discretion, CGI shall immediately notify IBG and IBG shall have one (1) business day to cure any identified objections and deliver revised Schedules to CGI. If, after such revised Schedules, if any, have been delivered to CGI and if such revised Schedules are not satisfactory to CGI, in its sole discretion, CGI shall have the unconditional right to terminate this Agreement and all of its obligations hereunder by providing IBG notice of such termination no later than 5:00 p.m., Dallas, Texas time on the second business day after receipt of the Schedules, or the revised Schedules, as applicable.
[Signature Page Follows]
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[Signature Page To Agreement and Plan of Reorganization]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized officers as of the date first above written.
INDEPENDENT BANK GROUP, INC. | ||
By: |
/s/ David R. Brooks |
|
David R. Brooks | ||
Chairman of the Board | ||
THE COMMUNITY GROUP, INC. | ||
By: |
/s/ John Jones |
|
John Jones | ||
Chairman of the Board |
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Exhibit 10.23
PURCHASE AND ASSUMPTION AGREEMENT
by and between
FIRST STATE BANK
Rice, Texas
and
INDEPENDENT BANK
McKinney, Texas
Dated as of January 13, 2009
TABLE OF CONTENTS
Page | ||||||
ARTICLE 1 |
SALE AND PURCHASE OF CERTAIN ASSETS AND ASSUMPTION AND TRANSFER OF CERTAIN LIABILITIES | 1 | ||||
1.1 |
Sale of Assets | 1 | ||||
1.2 |
Assets to be Retained by Seller | 2 | ||||
1.3 |
Assumption of Liabilities of Seller | 3 | ||||
1.4 |
Liabilities to be Retained by Seller | 3 | ||||
1.5 |
Purchase Price and Payment | 4 | ||||
1.6 |
The Closing, the Closing Date and the Effective Time | 4 | ||||
1.7 |
Preliminary Balance Sheet and Final Balance Sheet | 4 | ||||
1.8 |
Adjustments | 5 | ||||
1.9 |
Deliveries by Seller at the Closing | 5 | ||||
1.10 |
Deliveries by Buyer at the Closing | 7 | ||||
1.11 |
Closing Costs and Recording | 7 | ||||
1.12 |
Further Assurances | 7 | ||||
ARTICLE 2 |
REAL ESTATE MATTERS | 7 | ||||
2.1 |
Commitment for Title Insurance and Survey | 7 | ||||
2.2 |
Objections and Remedies | 8 | ||||
2.3 |
Title Insurance Policy | 8 | ||||
2.4 |
Destruction or Damage Prior to Closing | 8 | ||||
ARTICLE 3 |
REPRESENTATIONS AND WARRANTIES OF SELLER | 9 | ||||
3.1 |
Organization and Standing | 9 | ||||
3.2 |
Execution and Delivery | 9 | ||||
3.3 |
Compliance with Laws, Permits and Instruments | 9 | ||||
3.4 |
Litigation | 9 | ||||
3.5 |
Consents | 9 | ||||
3.6 |
Title to and Condition of the Assets | 10 | ||||
3.7 |
Financial Statements | 10 | ||||
3.8 |
Contracts | 10 | ||||
3.9 |
Absence of Certain Changes or Events | 10 | ||||
3.10 |
No Adverse Change | 10 | ||||
3.11 |
Evidences of Indebtedness | 11 | ||||
3.12 |
Books and Records | 11 | ||||
3.13 |
Regulatory Compliance | 11 | ||||
3.14 |
Brokerage Fees | 11 | ||||
3.15 |
Employee Matters | 11 | ||||
3.16 |
Employee Relations | 11 | ||||
3.17 |
Environmental Matters | 11 | ||||
3.18 |
Representations Not Misleading | 12 | ||||
ARTICLE 4 |
REPRESENTATIONS AND WARRANTIES OF BUYER | 12 | ||||
4.1 |
Organization and Standing | 12 | ||||
4.2 |
Execution and Delivery | 12 | ||||
4.3 |
Compliance with Laws, Permits and Instruments | 13 | ||||
4.4 |
Litigation | 13 |
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4.5 |
Consents | 13 | ||||
4.6 |
Brokerage Fees | 13 | ||||
4.7 |
Regulatory Conditions | 13 | ||||
4.8 |
Representations Not Misleading | 13 | ||||
ARTICLE 5 |
COVENANTS OF SELLER | 14 | ||||
5.1 |
Reasonable Efforts | 14 | ||||
5.2 |
Information for Governmental Applications | 14 | ||||
5.3 |
Required Acts of Seller | 14 | ||||
5.4 |
Prohibited Acts of Seller | 15 | ||||
5.5 |
Access; Pre-Closing Investigation | 16 | ||||
5.6 |
Additional Financial Statements | 16 | ||||
5.7 |
Untrue Representations | 16 | ||||
5.8 |
Notice of Adverse Changes, Litigation and Claims | 16 | ||||
5.9 |
No Disclosure or Negotiation with Others | 16 | ||||
5.10 |
Notices to Customers | 16 | ||||
ARTICLE 6 |
COVENANTS OF BUYER | 17 | ||||
6.1 |
Reasonable Efforts | 17 | ||||
6.2 |
Regulatory Approvals | 17 | ||||
6.3 |
Notice of Adverse Changes, Litigation and Claims | 17 | ||||
6.4 |
Change of Name, Notice to Customers. | 17 | ||||
6.5 |
Use of Name | 17 | ||||
6.6 |
Solicitation of Customers of the Branch | 18 | ||||
6.7 |
Solicitation of Employees of the Branch | 18 | ||||
ARTICLE 7 |
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF BUYER | 18 | ||||
7.1 |
Compliance with Representations, Warranties and Agreements | 18 | ||||
7.2 |
Necessary Corporate Actions | 18 | ||||
7.3 |
Governmental Approvals | 18 | ||||
7.4 |
No Litigation | 19 | ||||
7.5 |
No Material Adverse Change | 19 | ||||
7.6 |
Consents of Third Parties | 19 | ||||
7.7 |
Documentation | 19 | ||||
7.8 |
Delivery of Schedules; Right to Terminate Agreement | 19 | ||||
ARTICLE 8 |
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF SELLER | 19 | ||||
8.1 |
Compliance with Representations, Warranties and Agreements | 19 | ||||
8.2 |
Necessary Corporate Actions | 20 | ||||
8.3 |
Governmental and Other Approvals | 20 | ||||
8.4 |
No Litigation | 20 | ||||
8.5 |
Documentation | 20 | ||||
ARTICLE 9 |
SURVIVAL OF REPRESENTATIONS, WARRANTIES, AGREEMENT AND OBLIGATIONS; INDEMNIFICATION | 20 | ||||
9.1 |
Survival | 20 | ||||
9.2 |
Indemnification by Seller | 20 | ||||
9.3 |
Indemnification by Buyer | 21 | ||||
9.4 |
Limit on Indemnities | 21 | ||||
ARTICLE 10 |
OPERATIONAL AGREEMENTS | 22 |
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10.1 |
Replacement of Customer Check Stock and ATM and Debit Cards | 22 | ||||
10.2 |
Payment of Checks, Drafts, and Orders | 22 | ||||
10.3 |
Clearing Items | 22 | ||||
10.4 |
Returned Items | 23 | ||||
10.5 |
Data Processing and Utilities | 23 | ||||
10.6 |
Compliance with Garnishments and Similar Orders | 23 | ||||
10.7 |
Direct Deposit Arrangements | 23 | ||||
10.8 |
Direct Debit Arrangements | 23 | ||||
10.9 |
Final Statements | 24 | ||||
10.10 |
Interest Reporting and Withholding | 24 | ||||
10.11 |
Loans | 24 | ||||
10.12 |
Other Items | 24 | ||||
10.13 |
Safe Deposit Box and Safekeeping Business | 25 | ||||
10.14 |
Noncompetition Agreement | 25 | ||||
10.15 |
Books and Records | 26 | ||||
10.16 |
Optical Disk Records | 26 | ||||
10.17 |
Taxes | 26 | ||||
ARTICLE 11 |
EMPLOYEE MATTERS | 26 | ||||
11.1 |
Notice to Employees and Information | 26 | ||||
11.2 |
Offer of Employment | 26 | ||||
11.3 |
Costs of Termination | 27 | ||||
11.4 |
Communications | 27 | ||||
11.5 |
Sellers Retention of Liabilities | 27 | ||||
11.6 |
No Third Party Beneficiaries | 27 | ||||
ARTICLE 12 |
TERMINATION AND ABANDONMENT | 27 | ||||
12.1 |
Right of Termination | 27 | ||||
12.2 |
Notice of Termination | 28 | ||||
12.3 |
Effect of Termination | 28 | ||||
ARTICLE 13 |
MISCELLANEOUS | 28 | ||||
13.1 |
Entire Agreement | 28 | ||||
13.2 |
Multiple Counterparts | 28 | ||||
13.3 |
Amendment | 29 | ||||
13.4 |
Notices | 29 | ||||
13.5 |
Binding Effect | 29 | ||||
13.6 |
Governing Law | 29 | ||||
13.7 |
Attorneys Fees and Costs | 29 | ||||
13.8 |
Severability | 29 | ||||
13.9 |
Assignability | 30 | ||||
13.10 |
Rules of Construction | 30 | ||||
13.11 |
Expenses | 30 | ||||
13.12 |
Waiver | 30 | ||||
13.13 |
Specific Performance | 30 | ||||
13.14 |
Public Disclosure | 30 | ||||
13.15 |
Confidential Information | 31 | ||||
13.16 |
Arbitration. | 31 |
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Exhibits
Exhibit A |
| Closing Settlement Amounts | ||
Exhibit B |
| Warranty Deed | ||
Exhibit C |
| Bill of Sale | ||
Exhibit D |
| Power of Attorney | ||
Exhibit E |
| Assignment and Assumption Agreement | ||
Exhibit F |
| Financial Statements |
iv
PURCHASE AND ASSUMPTION AGREEMENT
THIS PURCHASE AND ASSUMPTION AGREEMENT (this Agreement) is made and entered into as of the 13 th day of January 2009 by and between First State Bank, a Texas state banking association having its main office in Rice, Texas (Buyer), and Independent Bank, a Texas state banking association having its main office in McKinney, Texas (Seller).
RECITALS :
WHEREAS, Seller desires to sell and transfer to Buyer, and Buyer desires to purchase certain assets from Seller associated with Sellers branch at 100 W. Main Street, Italy, Texas 76651 (the Branch) and to assume certain liabilities of Seller associated with the Branch as hereinafter described on the terms and subject to the conditions set forth herein;
NOW, THEREFORE, for and in consideration of the foregoing and of the mutual representations, warranties, covenants and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and subject to the conditions herein set forth, the parties hereto, intending to be legally bound hereby, do undertake, promise, covenant and agree with each other as follows:
ARTICLE 1
SALE AND PURCHASE OF CERTAIN ASSETS
AND ASSUMPTION AND TRANSFER OF CERTAIN LIABILITIES
1.1 Sale of Assets . On the terms and subject to the conditions contained in this Agreement, at the Closing (as defined in Section 1.6) Buyer shall purchase from Seller and Seller shall sell, convey, assign, transfer and deliver to Buyer all of the rights, title, and interests of Seller in and to the following assets of the Branch as a going concern, free and clear of all liens, security interests, pledges, encumbrances, adverse claims and demands of every kind, character and description whatsoever (other than liens for taxes not yet due, referred to herein as Permitted Liens and Permitted Encumbrances as defined in Section 2.1), except as otherwise provided in this Agreement (all of which are collectively referred to herein as the Assets):
A. All cash on hand at the Branch as of the close of business on the Closing Date, including vault cash, automated teller machine (ATM) cash, petty cash, tellers cash and cash items in the process of collection (the Cash on Hand). At the Closing, Seller shall deliver to Buyer Schedule 1.1(a) (Schedule of Cash) including the amount and location of Sellers Cash on Hand as of the close of business on the date preceding the Closing Date;
B. (i) All loans, overdrafts, overdraft protections, overdraft lines, or other extensions of credit listed on Schedule 1.1(b) to be delivered on the Closing Date (the Loans), plus accrued but unpaid interest on such Loans through the Closing Date;
C. The real property on which the Branch is located and all improvements to such property purchased, installed or constructed by or on behalf of Seller and used in connection with the operation or maintenance of the Branch, including, without limitation, buildings, structures, parking facilities and drive-in teller facilities (the Real Property);
D. All furniture, fixtures, equipment and other tangible personal property, other than as set forth on Schedule 1.1(d) , owned by Seller and located at the Branch or affixed to the Real Property at which the Branch is located, exclusive of (i) all signage and (ii) the contents of safe deposit boxes (the Personal Property);
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E. All rights of Seller under safe deposit contracts and leases for the safe deposit boxes located at the Branch as of the Effective Time (the Safe Deposit Contracts);
F. All rights of Seller under express or implied warranties given or made in connection with the Assets, if any;
G. All books, records (including computer records), files and documentation relating to the Assets and the Liabilities in the form and manner kept by Seller, including without limitation, in electronic format (the Records), including, but not limited to:
(i) Signature cards, orders and contracts between Seller and its depositors, and records of similar character;
(ii) Loan and collateral records and credit files; and
(iii) The Safe Deposit Contracts.
It is understood that certain of Sellers records may be available only in the form of photocopies, film copies or other non-original and non-paper media. Further, it is understood that certain historical records are available only on optical disk and are intermingled with other records of Seller (the Optical Disk Records). The Optical Disk Records will remain in the possession of Seller; after the Closing Date, Seller will provide printed copies of information contained in the Optical Disk Records pursuant to Section 10.16 of this Agreement.
Buyer shall succeed to all rights, title, benefits and interests in and to the Assets as of the Effective Time, and shall be entitled to receive all benefits therefrom as if Buyer had itself acquired such assets.
1.2 Assets to be Retained by Seller . Seller shall retain all assets not expressly purchased by Buyer pursuant to Section 1.1, including, but not limited to (i) all investment securities owned by Seller; (ii) all of the Sellers investments in Sellers affiliates and subsidiaries; (iii) all other real estate owned by Seller or carried as in substance foreclosures that are associated with the Branch (if any); (iv) all repossessed personal property owned by, or in the possession of, the Seller; (v) all of the Sellers life insurance policies; (vi) all loans or participations in loans that are not Loans, including any loans previously charged-off by the Seller; (vii) reserves for loan losses on all loans (including the Loans); (viii) all assets and records associated with any investment, trust or brokerage business of Seller or its affiliates, whether conducted at the Branch or any other location of Seller; (ix) all deferred tax assets; (x) all intangible assets, including goodwill and mortgage servicing rights, of Seller; (xi) all rights to the name Independent Bank and any of Sellers corporate logos, trademarks, trade names, signs, paper stock, monetary instruments (including, but not limited to, travelers checks and cashiers checks), forms and other supplies containing any such logos, trademarks or tradenames; (xii) all customer and merchant credit card accounts; and (xiii) any other assets specifically listed on Schedule 1.2 (collectively, the Excluded Assets). Seller shall coordinate with Buyer to remove the Excluded Assets from the Branch prior to the Effective Time. Sellers signage shall be removed from the Branch by Seller at its own cost promptly, but no later than three business days after the Effective Time. Seller shall remove the Excluded Assets at its own cost and will be responsible for making any repairs necessitated by Sellers removal of the Excluded Assets.
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1.3 Assumption of Liabilities of Seller . At the Closing, subject to the conditions contained herein, Seller shall transfer and assign to Buyer, and Buyer shall assume, pay for, perform and discharge from and after the Effective Time, as and when due and payable, the following liabilities of Seller attributable to the Branch and reflected on the books and records of Seller (all of which are collectively referred to herein as the Liabilities):
A. All deposits associated with the Branch as of the Effective Time (the Deposits), and accrued and unpaid interest on any interest-bearing deposits through the Effective Time (Accrued Interest), together with all duties and obligations of Seller associated therewith, including, but not limited to, the agreements with customers associated with such deposits (the Deposit Agreements; the holders of record of the Deposits are hereinafter referred to as the Depositors); provided , however , that the Deposits shall not include (i) deposits which are pledged to secure loans of Seller which are not Loans and which are specifically listed on Schedule 1.3(a) ; (ii) any deposit accounts that have become or are deemed dormant or closed accounts by Seller; (iii) any deposits associated with out of area relationships which are maintained by the Seller and which are listed on Schedule 1.3(a) ; (iv) any deposits of offices or directors of Independent Bank Group, Inc., or the deposits of any officers and directors of any of its affiliates and subsidiaries (other than officers of the Branch); or (v) any deposits that are IRAs or Keogh accounts.
B. All liabilities, duties and obligations of Seller arising or to be performed after the Effective Time under the Safe Deposit Contracts;
C. All other book liabilities of the Seller attributable to the Branch, together with any accrued and unpaid interest on any such liabilities through the Effective Time (the Other Liabilities); provided , however, that Other Liabilities shall not include any obligations of the Seller for advances from the Federal Home Loan Bank or any of the liabilities of the Seller specifically listed on Schedule 1.3(c) ; and
D. All duties and obligations of Seller arising or to be performed after the Effective Time under the loan documents related to the Loans.
Buyer shall succeed to all obligations and liabilities of Seller to the extent included in the Liabilities as of the Effective Time, and shall be liable from then and thereafter to pay, discharge and perform all of the Liabilities as if Buyer had itself incurred such obligations and liabilities, and Buyer shall succeed to all rights, offsets and defenses of Seller in connection therewith. The parties understand and agree that Seller will have no obligation to make payments after the Closing Date with respect to any service or maintenance contracts that cover equipment or facilities located at the Branch. For purposes of this Agreement, the term deposit shall include, but not be limited to, all uncollected items included in the depositors balances and credited on the books of Seller, and shall have the meaning identical to that defined in section 3( ℓ ) of the Federal Deposit Insurance Act, 12 U.S.C. § 1813( ℓ ).
1.4 Liabilities to be Retained by Seller . Seller shall retain all liabilities or obligations not expressly assumed by Buyer pursuant to Section 1.3, including, but not limited to:
A. All real estate taxes on other real estate and properties carried as in substance foreclosures of Seller, all sales and use, social security and unemployment taxes withheld or collected from employees or customers and all accounts payable and operating expenses, whether or not accrued, for products or services incurred prior to the Effective Time including, but not limited to, salaries, attorneys fees and telephone, utility, advertising and public relations expenses, except that to the extent that an adjustment to the purchase price hereunder is made in respect of any such liability or obligation, Buyer shall assume all liability with respect thereto;
3
B. All real estate taxes on the Branch banking facility attributable to the portion of the year Seller, and any other existing owners of the facility, own such facility;
C. Liabilities or obligations with respect to any litigation, suits, claims, demands or governmental proceedings asserted by third parties against Seller and arising, commenced or resulting from the operations of the Branch prior to the Effective Time; and
D. Sellers cashier checks, letters of credit, money orders, interest checks and expense checks issued prior to Closing, consignments of U.S. Government E and EE bonds and any and all travelers checks.
1.5 Purchase Price and Payment . At the Closing:
A. Seller shall transfer to Buyer cash in the amount equal to the difference between (a) the amount of (i) the Deposits, plus (ii) Accrued Interest, plus (iii) Accrued Expenses (as provided in Section 1.8) plus (iv) Other Liabilities minus (b) the sum of (i) an amount equal to the principal balance plus accrued interest of the Loans (excluding the Participations) as of the Closing Date plus (ii) an amount equal to the Cash on Hand, plus (iii) the amount of Prepaid Expenses as provided in Section 1.8 plus (iv) an amount equal to Two Hundred Thousand Dollars ($200,000) for the Real Property and the Personal Property as of the Closing Date;
B. Buyer shall also pay a premium (the Premium) to Seller in an amount equal to three and one half percent (3.5%) of the Deposits acquired, as determined on the Closing Date.
C. Seller shall provide to Buyer, within 3 business days prior to the Closing Date, a preliminary schedule of Closing settlement amounts substantially in the form attached hereto as Exhibit A showing in reasonable detail the calculation of the payments to be made at Closing, including any adjustments made in respect of the Preliminary Balance Sheet described in Section 1.7 below.
1.6 The Closing, the Closing Date and the Effective Time . The sale and purchase of the Assets and the assumption of the Liabilities pursuant to this Agreement (the Closing) shall occur on a date mutually acceptable to Seller and Buyer within 30 days after the satisfaction or waiver of all conditions precedent set forth in Articles 7 and 8. The Closing shall be held at the offices of Hunton & Williams LLP, 1445 Ross Avenue, Suite 3700, Dallas, Texas, unless another place is mutually agreed upon by Buyer and Seller. The date of the Closing is referred to herein as the Closing Date. The effective time (the Effective Time) shall be 5:00 p.m., local time, on the Closing Date or such other time as the Buyer and Seller shall mutually agree. Buyer and Seller specifically agree that time is of the essence for all purposes with respect to this Agreement and the transactions contemplated hereby.
1.7 Preliminary Balance Sheet and Final Balance Sheet . On the Closing Date, Seller shall present Buyer with a list of the balances of the Assets and the Liabilities as of a date 3 business days prior to the Closing Date, certified by the Chief Executive Officer or Chief Financial Officer of Seller (acting in his or her official capacity, and not individually) to be true and correct as of the date reflected thereon (the Preliminary Balance Sheet), and the parties will calculate all amounts pursuant to Section 1.5 in accordance with the amounts reflected on the Preliminary Balance Sheet. Within 30 days following the Closing Date, Seller shall present Buyer with a list of the balances of the Assets and the Liabilities as of the Effective Time, certified by the Chief Executive Officer or Chief Financial Officer of Seller (acting in
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his or her official capacity, and not individually) to be true and correct as of the date reflected thereon (the Final Balance Sheet). Additionally, Seller shall deliver to Buyer a list of Loans purchased, individually identified by account number, which list shall be appended to the Bill of Sale, and a list of the Deposits assumed, which list shall be appended to the Assignment and Assumption Agreement. Subject to rights of indemnification pursuant to Article 9, the Final Balance Sheet shall become final and binding on Buyer and Seller 10 business days after its delivery to Buyer, unless Buyer gives written notice to Seller of its disagreement with respect to any item included in such statement. Seller and Buyer shall use reasonable efforts to resolve the disagreement during the 10 business day period following receipt by Seller of the notice. If the disagreement is not resolved during such 10 business day period, the parties agree to follow the procedures set forth in Section 13.16 to resolve such dispute, and such Final Balance Sheet shall be modified by any such resolution, whereupon the Final Balance Sheet shall become final and binding. When the Final Balance Sheet becomes final and binding, an appropriate adjusting settlement payment from Seller to Buyer or from Buyer to Seller, as the case may be, will be made together with accrued interest calculated at the federal funds rate in effect on the Closing Date for the number of days elapsed between the Closing Date and the date of such adjusting settlement payment.
1.8 Adjustments . All operating expenses and fees accrued or prepaid on or prior to the Effective Time, including, without limitation, wages, salaries, deposit insurance premiums, utility payments, telephone charges, property taxes, other ordinary operating expenses of the Branch and other expenses related to the Assets or Liabilities, shall be prorated between the parties as of the Effective Time. All amounts prepaid relating to Safe Deposit Contracts or agreements shall be prorated through the Effective Time, and all deposits paid thereon, if any, shall be paid to Buyer. Notwithstanding Sellers normal practices and procedures, to the extent that Seller has paid expenses that are expenses allocable to Buyer pursuant to this Section, such expenses shall appear as Prepaid Expenses on the Preliminary Balance Sheet, or, if not allocable as of the date the Preliminary Balance Sheet is calculated (the Preliminary Balance Sheet Date), on the Final Balance Sheet. Notwithstanding Sellers normal practices and procedures, to the extent that expenses have been incurred but not paid by Seller on or prior to the Effective Time, they shall appear as an Accrued Expense on the Preliminary Balance Sheet or, if not incurred by the Preliminary Balance Sheet Date, on the Final Balance Sheet.
1.9 Deliveries by Seller at the Closing . At the Closing, Seller shall execute, acknowledge and deliver to Buyer in recordable form as appropriate, and with third party consents and releases of liens and security interests when required, certificates and other instruments of sale, conveyance, transfer and assignment relating to all of the Assets, and containing warranties consistent with the representations and warranties contained in this Agreement, including, without limitation, the following (all of such actions constituting conditions precedent to Buyers obligations to close hereunder):
A. A special warranty deed covering the Real Property in the form of Exhibit B hereto;
B. A general warranty bill of sale covering the Personal Property in the form of Exhibit C hereto;
C. Documents properly endorsed for transfer reflecting the assignment of all notes, guaranties, security agreements, financing statements, and any other agreements and certificates of title to inure to the benefit of Buyer with respect to the Loans, and possession of any instruments (duly endorsed as necessary) securing the Loans;
D. All collateral security of any nature whatsoever held by Seller as collateral for any of the Assets;
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E. All of the Records (other than the Optical Disk Records);
F. The Preliminary Balance Sheet;
G. The Cash on Hand and such of the other Assets that are capable of physical delivery;
H. A certificate duly executed by an authorized officer of Seller (acting in his or her official capacity, and not individually), dated as of the Closing Date, pursuant to which such officer shall certify that (a) the representations and warranties of Seller as set forth in this Agreement are true and correct in all material respects as of the Closing Date; (b) Seller has complied with all covenants contained in Article 6 and its other agreements set forth herein and (c) that since September 30, 2008, there has been no event, condition or circumstance that has occurred or is reasonably likely to occur that would prevent Seller from performing any of its obligations under this Agreement or consummating the transactions contemplated hereby (any of such events being referred to herein as a Material Adverse Change);
I. A certificate duly executed by the Cashier or Secretary of Seller pursuant to which such officer shall certify (i) the due adoption by the Board of Directors of Seller of corporate resolutions attached to such certificate authorizing the transaction and the execution and delivery of this Agreement and the other agreements and documents contemplated hereby and the taking of all actions contemplated hereby and thereby; and (ii) the incumbency and true signatures of those officers of Seller duly authorized to act on its behalf in connection with the transaction contemplated by this Agreement and to execute and deliver this Agreement and other agreements and documents contemplated hereby and the taking of all actions contemplated hereby and thereby on behalf of Seller;
J. All documents, contracts, certificates, instruments, keys and records necessary or appropriate to transfer the safe deposit and safekeeping businesses, if any, of the Branch to Buyer;
K. Possession of the Assets and access to and keys to the Branch and all security devices located at the Branch, together with security codes for access to the Branch and combinations to all locking devices of Seller located at the Branch;
L. A list, certified by an authorized officer of Seller (acting in his or her official capacity, and not individually), setting forth all garnishments, similar court orders, tax liens and orders of any governmental entity in effect with respect to the Deposits;
M. Payment to Buyer as is required pursuant to Section 1.5 in immediately available funds (such payment to be made at a time no later than 2:00 p.m., Waco, Texas time, on the Closing Date);
N. A Power of Attorney in the form of Exhibit D hereto;
O. An assignment and assumption agreement in the form of Exhibit E hereto by which Seller assigns the Liabilities to Buyer; and
P. All personnel records and employee files with respect to all Branch Employees (as defined in Section 11.1).
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1.10 Deliveries by Buyer at the Closing . At the Closing, Buyer shall execute, acknowledge and deliver to Seller, in recordable form as appropriate, such documents and certificates necessary to carry out the terms and provisions of this Agreement, including, without limitation, the following (all of such actions constituting conditions precedent to Sellers obligations to close hereunder):
A. An assignment and assumption agreement in the form of Exhibit E hereto by which Buyer assumes the Liabilities;
B. A certificate duly executed by an authorized officer of Buyer (acting in his or her official capacity, and not individually), dated as of the Closing Date, pursuant to which such officer shall certify that (a) the representations and warranties of Buyer as set forth in this Agreement are true and correct in all material respects as of the Closing Date and (b) Buyer has complied with all covenants contained in Article 6 and its other agreements set forth herein;
C. A certificate duly executed by the Cashier or Assistant Cashier of Buyer pursuant to which such officer shall certify (i) the due adoption by the Board of Directors of Buyer of corporate resolutions attached to such certificate authorizing the execution and delivery of this Agreement and the other agreements and documents contemplated hereby and the taking of all actions contemplated hereby and thereby on behalf of Buyer, and (ii) the incumbency and true signatures of those officers of Buyer duly authorized to act on its behalf, in connection with the transaction and this Agreement and to execute and deliver this Agreement on behalf of Buyer; and
D. Payment to Seller of the Premium payable at Closing, in immediately available funds (such payment to be made at a time no later than 2:00 p.m., Waco, Texas time, on the Closing Date).
1.11 Closing Costs and Recording . Except as otherwise specified in this Agreement, Buyer shall be responsible for filing or recording any instruments or documents evidencing, or otherwise notifying persons who are not parties to this Agreement regarding, the consummation of the transactions contemplated by this Agreement.
1.12 Further Assurances . From time to time following the Closing, at the request of any party hereto and without further consideration, the other party hereto shall, at the reasonable expense of the requesting party (to the extent of any out of pocket costs incurred), execute and deliver to such requesting party such instruments and documents and take such other action (but without incurring any additional financial obligation) as such requesting party may reasonably request in order to consummate more fully and effectively the transactions contemplated hereby.
ARTICLE 2
REAL ESTATE MATTERS
2.1 Commitment for Title Insurance and Survey . Seller shall deliver to Buyer and Buyers counsel with respect to each parcel of Real Property (a) within 30 days from the date of this Agreement, title commitments (including all documents, instruments or agreements evidencing or creating the exceptions referenced in such commitment) (the Commitments) issued by Home Abstract and Title Company, Waco, Texas (the Title Company) and (b) within 45 days from the date of this Agreement, land title surveys of the Real Property, prepared and certified as to all matters shown thereon by a surveyor licensed by the State of Texas (the Surveys), which Surveys shall include a notation stating whether or not a portion of such Real Property is located in a 100-year flood plain, flood-prone area of special flood hazard and shall show the specific location of any portions of such Real Property that may
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be located in any such flood areas. The Commitments shall reflect that Buyer has good and indefeasible title to the Real Property, subject only to (1) any shortages in area, (2) taxes for 2008 and subsequent years and subsequent assessments for prior years due to a change in land usage or ownership, (3) existing building and zoning ordinances, (4) utility easements, and (5) objections accepted or deemed waived by Buyer (collectively, the Permitted Encumbrances). The cost of the Commitments shall be borne by Seller and the cost of the Surveys shall be shared equally between the Buyer and Seller.
2.2 Objections and Remedies . If any Commitment contains any exceptions other than the Permitted Encumbrances, Seller shall make a good faith effort to cure such exception. Buyer may object to any remaining uncured exceptions by providing written notice of such objection on or before the close of business on the 10 th business day after delivery of the last of Commitments and the Surveys to Buyer. All objections raised by Buyer are referred to herein as the Objections. Within 30 days after receipt of the Objections, Seller shall either (i) remedy or remove all Objections, or (ii) notify Buyer that Seller has elected not to remedy or remove some or all of the Objections. In the event Seller gives the notice set forth in the preceding clause (ii) of this Section 2.2, or in the event Seller fails to remedy or remove all Objections within said 30-day period, Buyer may (as its sole remedy) on or before close of business on the 5 th business day after such 30-day period (or, if applicable, on or before close of business on the 5 th business day after receipt of Sellers notice), terminate this Agreement in its entirety by giving Seller written notice, whereon this Agreement shall terminate and have no further force and effect except as set forth in Section 12.3 hereof. If Buyer fails to terminate within such 5-business day period, Buyer shall be deemed to have waived its Objections.
2.3 Title Insurance Policy . Seller shall cause the Title Company, as soon as practicable after the Closing, to issue a Texas Owners Policy of Title Insurance, to Buyer, at Sellers expense, covering the Real Property in the amount equal to $200,000. Such policy shall guarantee Buyers title to the Real Property to be good and indefeasible subject only to the Permitted Encumbrances.
2.4 Destruction or Damage Prior to Closing . In the event of damage to or destruction of all or any portion of the Real Property by fire or other casualty prior to the Effective Time, Seller will promptly notify Buyer of the nature and extent of such damage or destruction, the amount estimated to be necessary to repair or restore the Real Property, the amount, if any, of insurance proceeds that are available to make such repairs or restoration and the estimated period of time it will take to make such repairs and restoration. The rights and obligations of the parties by reason of such damage or destruction shall be as follows:
A. If the estimated time for completion of the repairs is 3 months or less, then Buyer, at Buyers option, may (i) take title to the Real Property subject to such damage or destruction, with Seller assigning to Buyer all Sellers rights to proceeds of insurance carried by Seller and payable as a result of such damage or destruction, or (ii) request that Seller cause the repairs to be made, in which case Seller shall cause the repairs to be made and the Closing Date shall be extended until the repairs are completed; and
B. If the estimated time for completion of the repairs is more than 3 months, then Buyer, at Buyers option, may (i) take title to the Real Property subject to such damage or destruction, with Seller assigning to Buyer all Sellers rights to proceeds of insurance carried by Seller and payable as a result of such damage or destruction, (ii) request in writing (the Buyers Repair Request) that Seller cause the repairs to be made, in which case Seller shall cause the repairs to be made and the Closing Date shall be extended until the repairs are completed, or (iii) terminate this Agreement by giving written notice to such effect to Seller not later than 10 days after receipt of written notice from Seller notifying Buyer of the estimated time needed for repair, whereupon this Agreement shall terminate and have no further force or effect except as set forth in Section 12.3.
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ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer as follows:
3.1 Organization and Standing . Seller is a Texas state banking association, duly organized, validly existing, and in good standing under the laws of the State of Texas, and Seller has full power and authority (including all licenses, franchises, permits and other governmental authorizations as are legally required) to own, operate and lease its properties and to carry on the business and activities now conducted by it. Seller is an insured financial institution as defined in the Federal Deposit Insurance Act, and all of the Deposits are insured by the Bank Insurance Fund of the Federal Deposit Insurance Corporation (FDIC) to the full extent provided by law.
3.2 Execution and Delivery . Seller has all requisite corporate power to enter into this Agreement with Buyer, to carry out its obligations under this Agreement and to consummate the transactions contemplated hereby. Seller has taken all corporate and shareholder action, if any, necessary to authorize the execution, delivery and (provided the required regulatory approvals are obtained) performance of this Agreement and the other agreements and documents contemplated hereby to which it is a party. This Agreement has been, and the other agreements and documents contemplated hereby have been or at Closing will be, duly executed by Seller, and each constitutes the legal, valid, and binding obligation of Seller, enforceable in accordance with their respective terms and conditions, except as enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws and judicial decisions affecting the rights of creditors generally and by general principles of equity (whether applied in a proceeding at law or in equity).
3.3 Compliance with Laws, Permits and Instruments . The Branch has been operated in all material respects in accordance with applicable laws, rules and regulations. The execution, delivery and (provided the required regulatory and shareholder approvals, if any, are obtained) performance of this Agreement and the consummation of the transactions contemplated hereby will not conflict with, or result, by itself or with the giving of notice or the passage of time, in any violation of or default under, any provision of the Articles or Bylaws of Seller or any material mortgage, indenture, lease, agreement or other instrument or any material permit, concession, grant, franchise, license, contract, authorization, judgment, order, decree, writ, injunction, statute, law, ordinance, rule or regulation applicable to Seller or its properties.
3.4 Litigation . There are no actions, claims, suits, investigations or proceedings pending or threatened (or any basis therefore known by Seller) affecting the Assets or Liabilities at law or in equity, or by or before any governmental department, commission, board, bureau, agency or instrumentality, that involve any claim not fully covered by insurance. No legal action, suit or proceeding or judicial, administrative or governmental investigation is pending or threatened against Seller that questions or might question the validity of this Agreement or any actions taken or to be taken by Seller pursuant hereto or seeks to enjoin or otherwise restrain the transactions contemplated hereby.
3.5 Consents . Except as set forth on Schedule 3.5 , no approval, consent, authorization or action of, or filing with, any governmental body is required on the part of Seller in connection with (a) the execution, delivery or performance by Seller of this Agreement and the other agreements and documents contemplated hereby or (b) the consummation by Seller of the transactions contemplated hereby.
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3.6 Title to and Condition of the Assets . Except with respect to the Assets set forth on Schedule 3.6 that are subject to a pledge made to the Federal Home Loan Bank of Dallas, which Assets shall be released from such pledge prior to Closing, Seller has good and indefeasible title, free and clear of all security interests, mortgages, encumbrances, pledges, trust agreements, liens or other adverse claims to any of the Assets other than Permitted Liens. No person or entity other than Seller has any right, title or interest in and to any of the Assets other than any Permitted Lien. Upon payment by Buyer of the amounts contemplated by this Agreement, Buyer will acquire good and indefeasible title to the Assets, free and clear of any lien, charge, encumbrance, option or adverse claim other than Permitted Liens.
3.7 Financial Statements . The financial statements attached hereto as Exhibit F are a true and complete presentation of the assets and the liabilities of the Branch as of September 30, 2008 (the Financial Statements).
3.8 Contracts . To the best knowledge of Seller, there are no agreements, contracts or commitments affecting the Assets to which Seller is a party and that require consent by any other person or entity in connection with the consummation of the transactions contemplated hereby either to prevent a breach or to continue the effectiveness thereof.
3.9 Absence of Certain Changes or Events . Since the date of the Financial Statements, the Branch has conducted its business only in the ordinary course and has not, other than in the ordinary course of business and consistent with past practices and safe and sound banking practices:
A. Incurred any obligation or liability, absolute, accrued, contingent or otherwise, whether due or to become due;
B. Mortgaged, pledged or subjected to lien, charge, security interest or any other encumbrance or restriction any of the Assets;
C. Sold, transferred, leased to others or otherwise disposed of any of the Assets;
D. Terminated, canceled or surrendered, or received any notice of or threat of termination or cancellation of any contract, lease or other agreement or suffered any damage, destruction or loss (whether or not covered by insurance) which, in any case or in the aggregate, would result in a Material Adverse Change;
E. Suffered any change, event or condition that, in any case or in the aggregate, has had or may result in a Material Adverse Change; or
F. Entered into any agreement or made any commitment to take any of the types of action described in subsections A through E above.
3.10 No Adverse Change . Except as disclosed in the representations and warranties made hereunder, since September 30, 2008, there has been no Material Adverse Change nor any event or condition that has had, nor has a reasonable possibility of having in the future, a Material Adverse Change, since the date of the Financial Statements. No material liabilities affecting the Branch has been incurred since the date of the Financial Statements other than those arising from normal transactions in the ordinary course of business that have been or will be disclosed to Buyer in writing prior to the Closing Date.
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3.11 Evidences of Indebtedness . All evidences of indebtedness reflected as Assets of Seller associated with the Branch are legal, valid and binding obligations of the respective obligors thereof, enforceable in accordance with their respective terms, except as limited by applicable bankruptcy, insolvency, reorganization and similar laws affecting creditors generally and the availability of injunctive relief, specific performance, and other equitable remedies) and are not subject to any defenses, offsets or counterclaims that may be asserted against Seller or the present holder thereof. The borrowers obligations with respect to each Loan are secured by a validly perfected security interest in the collateral specified in the Loan documents in favor of Seller as secured party, having the priority as described in the Loan documents. Seller has been charging interest and other amounts due under the Loan documents in accordance with the terms of such documents.
3.12 Books and Records. The books and records of the Branch have been kept accurately in the ordinary course of business, the transactions entered therein represent bona fide transactions and the revenues, expenses, assets and liabilities of Seller have been properly recorded in such books and records.
3.13 Regulatory Compliance . Seller is an eligible depository institution, as defined in 12 C.F.R. § 303.2(r). Except as disclosed in writing to Buyer, all reports, records and other documents or information involving any of the Assets or the Liabilities or the operation of the Branch that are required to be filed by Seller with any regulatory authority including, without limitation, the FDIC and the Internal Revenue Service have been duly and timely filed and all information and data contained in such reports, records or other documents is true, accurate and correct.
3.14 Brokerage Fees . Except as set forth on Schedule 3.14 , Seller has not paid or agreed to pay any fee or commission to any agent, broker, finder or other person for or as a result of services rendered as a broker or finder in connection with this Agreement or the transactions covered and contemplated hereby. All negotiations relating to this Agreement have been conducted by Seller directly and without the intervention of any person in such manner as to give rise to any valid claim against Seller for any brokerage commission or like payment.
3.15 Employee Matters . Schedule 3.15 lists the names of all Branch Employees (as defined in Section 11.1) as of the date specified thereon and states for each such individual his or her position, dates of employment with Seller, years of service and present compensation. All Assumed Employees (as defined in Section 11.2) have been, or will have been prior to any such Assumed Employees enrollment in Buyers employee welfare benefit plan (as that term is defined in section 3(1) of the Employee Retirement Income Security Act of 1974 (ERISA)) pursuant to Section 11.2, covered by an employee welfare benefit plan for a period of not less than twelve consecutive months without a 63-day break in coverage.
3.16 Employee Relations. Seller has complied in all material respects with all applicable laws relating to its relationships with its Branch Employees (as defined in Section 11.1), and Seller believes that relationships between its Branch Employees and Seller is good.
3.17 Environmental Matters . With respect to the Branch and the Real Property on which the Branch is located, except as specifically described in Sellers Assessment: (i) the Branch and the Real Property and their operations are in material compliance with all Environmental Laws, (ii) Seller is not aware of nor has received notice from any third party, including regulatory authorities, of, any past, present, or future conditions, events, activities, practices or incidents that may interfere with or prevent the compliance of the Branch or the Real Property with all Environmental Laws, (iii) no Hazardous Materials exist on, about or within the Branch or the Real Property, nor have any Hazardous Materials previously existed on, about or within or been used, generated, stored, transported, disposed of, on or released from the Real Property, and (iv) Seller has not previously received any report reflecting the results of any environmental assessment or survey (including an asbestos survey) performed on the Branch or the Real Property. For purposes of this Agreement, Environmental Laws mean all federal,
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state and local laws, regulations, statutes, ordinances, codes, rules, decisions, orders or decrees relating or pertaining to the public health and safety or the environment, or otherwise governing the generation, use, handling, collection, treatment, storage, transportation, recovery, recycling, removal, discharge or disposal of Hazardous Materials, including, without limitation, (i) the Solid Waste Disposal Act, 42 U.S.C. 6901 et seq., as amended (SWDA, also known as RCRA for a subsequent amending act), (ii) the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §9601 et seq., as amended (CERCLA), (iii) the Clean Water Act, 33 U.S.C. § 251 et seq., as amended (CWA), (iv) the Clean Air Act, 42 U.S.C. § 7401 et seq., as amended (CAA), (v) the Toxic Substances Control Act, 15 U.S.C. § 2601 et seq., as amended (TSCA), (vi) the Emergency Planning and Community Right to Know Act, 15 U.S.C. § 2601 et seq., as amended (EPCRKA), and (vii) the Occupational Safety and Health Act, 29 U.S.C. § 651 et seq., as amended. For purposes of this Agreement, Hazardous Material means, without limitation, (i) any hazardous wastes as defined under RCRA, (ii) any hazardous substances as defined under CERCLA, (iii) any toxic pollutants as defined under CWA, (iv) any hazardous air pollutants as defined under CAA, (v) any hazardous chemicals as defined under TSCA, (vi) any hazardous substances or extremely hazardous substances as defined under EPCRKA, (vii) asbestos, (viii) polychlorinated biphenyls, (ix) underground storage tanks, whether empty, filled or partially filled with any substance, (x) any substance the presence of which on the property in question is prohibited under any Environmental Law, and (xi) any other substance which under any Environmental Law requires special handling or notification of or reporting to any federal, state or local governmental entity in its generation, use, handling, collection, treatment, storage, re-cycling, treatment, transportation, recovery, removal, discharge or disposal.
3.18 Representations Not Misleading . No representation or warranty by Seller contained in this Agreement, and no statement made by Seller contained in any other agreement or document contemplated hereby, contains or will contain any untrue statement of material fact or omits or will omit to state any material fact necessary to make the statements herein or therein, in light of the circumstances under which it was or will be made, not misleading. Except as disclosed herein, there is no matter that materially adversely affects or will in the future materially adversely affect the Assets or Liabilities other than general economic conditions.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller as follows:
4.1 Organization and Standing . Buyer is a Texas state banking association duly organized, validly existing, and in good standing under the laws of the State of Texas, and Buyer has full power and authority (including all licenses, franchises, permits and other governmental authorizations that are legally required) to own, operate and lease its properties and to carry on the business and activities now conducted by it.
4.2 Execution and Delivery . Buyer has all requisite corporate power to enter into this Agreement and carry out its obligations under this Agreement and to consummate the transactions contemplated hereby. Buyer has taken all corporate action necessary to authorize the execution, delivery and (provided the required regulatory approvals are obtained) performance of this Agreement and the other agreements and documents contemplated hereby to which it is a party. This Agreement has been, and the other agreements and documents contemplated hereby have been or at Closing will be, duly executed by Buyer, and each constitutes the legal, valid and binding obligation of Buyer, enforceable in accordance with their respective terms and conditions, except as enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws and judicial decisions affecting the rights of creditors generally and by general principles of equity (whether applied in a proceeding at law or in equity).
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4.3 Compliance with Laws, Permits and Instruments . The execution, delivery and (provided the required regulatory approvals are obtained) performance of this Agreement and the consummation of the transactions contemplated hereby will not conflict with, or result, by itself or with the giving of notice or the passage of time, in any violation of or default under, any provision of the Articles or Bylaws of Buyer or any material mortgage, indenture, lease, agreement or other instrument or any permit, concession, grant, franchise, license, contract, authorization, judgment, order, decree, writ, injunction, statute, law, ordinance, rule or regulation applicable to Buyer or its properties. No consent, approval, order or authorization of, or registration, declaration or filing with, any governmental authority or other third party is required in connection with the execution and delivery of this Agreement by Buyer or the consummation by Buyer of the transactions contemplated hereby, except for filings required in order to obtain the required regulatory approvals, as described in Section 7.3.
4.4 Litigation . No legal action, suit or proceeding or judicial, administrative or governmental investigation is pending or threatened against Buyer that questions or might question the validity of this Agreement or any actions taken or to be taken by Buyer pursuant hereto or seeks to enjoin or otherwise restrain the transactions contemplated hereby.
4.5 Consents . Other than the approvals described in Section 7.3, no approval, consent, authorization or action of, filing with, any governmental body or other third party is required on the part of Buyer in connection with (a) the execution, delivery or performance by Buyer of this Agreement and the other agreements and documents contemplated hereby or (b) the consummation by Buyer of the transactions contemplated hereby.
4.6 Brokerage Fees . Buyer has not paid or agreed to pay any fee or commission to any agent, broker, finder or other person for or as a result of services rendered as a broker or finder in connection with this Agreement or the transactions covered and contemplated hereby. All negotiations relating to this Agreement have been conducted by Buyer directly and without the intervention of any person in such manner as to give rise to any valid claim against Buyer for any other brokerage commission or like payment.
4.7 Regulatory Conditions . The only regulatory application that Buyer is required to file and have approved to permit it to consummate the transactions contemplated hereby is the approval of the Texas Department of Banking (TDB) and the FDIC. Buyer has a CRA rating of satisfactory or better. Buyer is an eligible depository institution, as defined in 12 C.F.R. § 3.03.2(r). The Buyer is not aware of any facts that would delay or prevent the Buyer from obtaining regulatory approval with respect to the transactions contemplated hereby.
4.8 Representations Not Misleading . No representation or warranty by Buyer contained in this Agreement, and no statement made by Buyer contained in any other agreement or document contemplated hereby, contains or will contain any untrue statement of material fact or omits or will omit to state any material fact necessary to make the statements herein or therein, in light of the circumstances under which it was or will be made, not misleading.
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ARTICLE 5
COVENANTS OF SELLER
5.1 Reasonable Efforts . Seller agrees to use commercially reasonable efforts to cause the consummation of the transactions contemplated hereby in accordance with the terms and conditions of this Agreement.
5.2 Information for Governmental Applications . Seller shall promptly, but in no event later than 10 days after receipt of a request by Buyer, furnish Buyer with all information concerning Seller required for inclusion in any application or statement required by law to be made by Buyer to or filed by Buyer with any governmental body in connection with the transactions contemplated by this Agreement, and Seller represents and warrants that all information so furnished for such statements and applications shall be true and correct in all material respects and shall not omit any material fact required to be stated therein or necessary to make the statements made, in light of the circumstances under which they were made, not misleading. Seller shall otherwise cooperate with Buyer in obtaining all governmental and regulatory consents, approvals, licenses, waivers and the like required to be fulfilled or obtained for the completion of the transactions contemplated by this Agreement.
5.3 Required Acts of Seller . Prior to the Closing, Seller shall, with respect to the Branch, unless otherwise permitted in writing by Buyer:
A. Operate the Branch in the ordinary course of business;
B. Use all reasonable efforts to preserve its business organization intact and to retain its present customers, depositors, suppliers, officers and employees;
C. Act in a manner that will preserve or attempt to preserve its goodwill;
D. Perform all of its obligations under contracts, leases and documents relating to or affecting its assets, properties and business associated with the Branch, except such obligations as Seller may in good faith reasonably dispute;
E. Maintain all Personal Property in its current operating condition and repair, ordinary wear and tear excepted;
F. Maintain in full force and effect all insurance policies now in effect or renewals thereof and give all notices and present all claims under all insurance policies in due and timely fashion;
G. Timely file all reports required to be filed with governmental authorities and observe and conform to all applicable laws, rules, regulations, ordinances, codes, orders, licenses and permits;
H. Timely file all tax returns required to be filed by it and promptly pay all taxes, assessments, governmental charges, duties, penalties, interest and fines that become due and payable;
I. Withhold from each payment made to each of its employees the amount of all taxes (including, but not limited to, federal income taxes, FICA taxes and state and local income and wage taxes) required to be withheld therefrom and pay the same to the proper tax receiving officers;
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J. Continue to follow and implement policies, procedures and practices regarding the identification, monitoring, classification and treatment of all assets in substantially the same manner as it has in the past;
K. Cooperate with and assist Buyer in assuring the orderly transition of the business of the Branch to Buyer from Seller; and
L. Remove all signage from the Branch at the expense of Seller on or before the Closing Date, it being understood that Buyer shall be responsible for installation of its signage at its expense on or after the Closing Date.
5.4 Prohibited Acts of Seller . Prior to the Closing, Seller shall not, without the prior written consent of Buyer:
A. Introduce any new material method of management or operation of the Branch;
B. Take any action that may result in a Material Adverse Change;
C. Default with respect to any provision of any insurance policy now or hereafter in effect relating to the Branch;
D. Enter into any transaction affecting any Asset or Liability other than in the ordinary course of business;
E. Make, or incur any obligation to make, any capital expenditures or enter into any contracts to make such expenditures with respect to the Branch, in either case in an aggregate amount not to exceed $5,000, provided that Seller can make any emergency repairs required to restore the Branch to a safe operating condition;
F. Except in the ordinary course of business and consist with past practice, make or alter any of the material terms of any Asset or Liability, including, but not limited to, changes in collateral, repayment terms or interest rates;
G. Pay a rate higher on Deposits at the Branch more than 50 basis points higher than the weekly rates published by the Seller;
H. Sell, transfer, mortgage, encumber or otherwise dispose of any of the Assets except for the disposition of Assets in the ordinary course of business;
I. Cause the transfer from the Branch to Sellers other operations of any deposits of the type included in the Liabilities, provided , however , that Seller may transfer deposits to Sellers other branch or offices upon the unsolicited request of the depositors;
J. Implement or originate any new advertising or marketing campaigns within Ellis County, Texas, other than general advertising not specifically targeted to such county; or
K. Cause the Branch to generate any deposits associated with out-of-area relationships or brokered deposits.
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5.5 Access; Pre-Closing Investigation . Upon prior written notice of at least 2 business days by Buyer, Seller shall afford the officers and authorized representatives of Buyer full access to the properties, books and records of Seller pertaining to the Assets and Liabilities and employees of the Branch in order that Buyer may have full opportunity to make such reasonable investigation as it shall desire to make of the Assets and Liabilities, including, without limitation, access sufficient to verify the value of the Assets and the Liabilities and the satisfaction of the conditions precedent to Buyers obligations described in Section 6. Seller agrees at any time, and from time to time, to furnish to Buyer as soon as practicable, any additional information pertaining to the Assets and Liabilities that Buyer may reasonably request. In addition, Seller shall provide Buyer reasonable access to the Branch for a mutually agreeable period of time preceding the Closing Date for the purpose of installing equipment. Buyer agrees to conduct its investigations hereunder during normal business hours of the Branch and in a manner which does not unreasonably interfere with the normal operations of the Branch and Buyer further agrees to cause the installation of such equipment to be effected in a manner intended to minimize disruption to the operation of the Branch.
5.6 Additional Financial Statements . Within 5 days of the date thereof, Seller shall furnish Buyer with financial statements as of each month end substantially in the format of Exhibit F from the date hereof until the Closing Date with respect to the Branch.
5.7 Untrue Representations . Seller shall promptly notify Buyer in writing if Seller becomes aware of any fact or condition that makes untrue, or shows to have been untrue, in any material respect, any schedule or any other information furnished to Buyer or any representation or warranty made in or pursuant to this Agreement or that results in Sellers failure to comply with any covenant, condition or agreement contained in this Agreement.
5.8 Notice of Adverse Changes, Litigation and Claims . Seller shall promptly notify Buyer in writing if Seller becomes aware of (i) any litigation, or any claim, controversy or contingent liability that might become the subject of litigation, against Seller or affecting the Branch, if such litigation or potential litigation might, in the event of an unfavorable outcome, result in a Material Adverse Change, or (ii) any change that has occurred or has been threatened (or any development has occurred or been threatened involving a prospective change) in the business, financial condition, operations or prospects of Seller that is or may reasonably be expected to result in a Material Adverse Change.
5.9 No Disclosure or Negotiation with Others . Seller shall prevent the disclosure of any of the terms or conditions hereof to any other person except for disclosure required by appropriate regulatory authorities, and as long as this Agreement shall remain effective, Seller shall not, directly or indirectly, nor shall it permit any of its officers, directors, employees, representatives or agents to, directly or indirectly, encourage, solicit or initiate discussions or negotiations with, or discuss or negotiate with, or provide any information to, any corporation, partnership, person or other entity or group (other than Buyer or an affiliate or an associate of Buyer or an officer, partner, employee or other authorized representative of Buyer or such affiliate or associate) concerning any sale of or similar transaction involving the Assets or the Liabilities
5.10 Notices to Customers . Prior to the Closing Date, Seller agrees to mail or cause to be mailed, to each of the Depositors, each holder of a safe deposit box domiciled at the Branch and to such other customers as may be required by applicable law, such notice of contemplated transfer of the Assets, the Liabilities or the operations of the Branch as may be required of Seller as a condition of approval by any regulatory authority, or as otherwise may be required by applicable law. Each such notice shall be in a form acceptable to each party hereto, such approval not to be unreasonably withheld.
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ARTICLE 6
COVENANTS OF BUYER
6.1 Reasonable Efforts . Buyer agrees to use commercially reasonable efforts to cause the consummation of the transactions contemplated hereby in accordance with the terms and conditions of this Agreement.
6.2 Regulatory Approvals . Buyer shall promptly, but in no event later than 30 days after the later of (a) the Determination Time or (b) receipt of all information from Seller necessary to be included as part of such applications, file or cause to be filed applications for all regulatory approvals required to be obtained by Buyer in connection with the transactions contemplated hereby. Buyer shall use its commercially reasonable efforts to obtain such regulatory approvals at the earliest practicable time. Buyer will provide Seller with copies of all non-confidential portions of any application, statements or correspondence submitted to or received from any regulatory authorities in connection with the transactions contemplated by this Agreement.
6.3 Notice of Adverse Changes, Litigation and Claims . Buyer shall promptly notify Seller in writing if Buyer becomes aware of (i) any fact or condition that makes untrue, or shows to have been untrue, in any material respect, any schedule or any other information furnished to Buyer or any representation or warranty made in or pursuant to this Agreement or that results in Buyers failure to comply with any covenant, condition or agreement contained in this Agreement, or (ii) any litigation against Buyer if such litigation might prevent consummation of the transactions contemplated by this Agreement.
6.4 Change of Name, Notice to Customers .
A. Prior to the Closing Date, Buyer agrees to mail or cause to be mailed, to each of the Depositors, each holder of a safe deposit box domiciled at the Branch and to such other customers as may be required by applicable law, such notice of contemplated transfer of the Assets, the Liabilities or the operations of the Branch as may be required as a condition of approval by any regulatory authority, or as otherwise may be required by applicable law. Each such notice shall be in a form acceptable to each party hereto, such approval not to be unreasonably withheld; and
B. After the Closing Date, Buyer shall, (i) as soon as practicable change the name on all documents and facilities relating to the Branch from Sellers name to Buyers name; and (ii) starting promptly after the Closing Date, mail written notice by first class mail to all customers of the Branch as of the Closing Date, all Depositors and all borrowers with respect to the Loans, of the consummation of the transactions contemplated by this Agreement, the form and substance of such notice being mutually satisfactory to Buyer and Seller.
6.5 Use of Name . It is understood that Seller is not transferring to Buyer any right, title or interest in or to, or any right of license to use, Sellers name in connection with the Branch or otherwise. Accordingly, Buyer shall not use, keep or claim any registered or unregistered trademark, service mark or other identification commonly associated with Seller, or any sign, display or similar material of Seller or any banking or other forms, stationery, passbooks, checks, travelers checks, cashiers checks, managers checks or similar banking material of Seller or bearing Sellers name or other similar marks or identification (except to the extent necessary to conduct business operations and with Sellers prior consent following Closing, and then only if Sellers name, marks or identification are obliterated from such material, and such material is clearly identified as that of Buyer), or any proprietary material of Seller including, without limitation, operating manuals, training manuals and public relations, explanatory
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or advertising materials. No agency relationship exists between the parties hereto. At no time, whether before or after Closing Date, shall Buyer transact any business in the name of Seller or in any way hold itself out as the actual or apparent agent of Seller.
6.6 Solicitation of Customers of the Branch . From and after the execution and delivery of this Agreement and until the Closing Date, unless this Agreement is terminated by Buyer pursuant to Section 12.1(B), (C), (E) or (F) or by mutual agreement of Buyer and Seller pursuant to Section 12.1(A). Buyer shall not offer to pay or accept and pay on any deposit account at any of Buyers locations within the market of the Branch, or advertise in the market of the Branch the payment of, any rate or term that is higher or better than that generally offered by Buyer on similar deposit products at other offices of Buyer.
6.7 Solicitation of Employees of the Branch . Except as contemplated by Article 11, from and after the execution and delivery of this Agreement and until the Closing Date, Buyer will not solicit or initiate communications with any Employees (as that term is hereinafter defined) for the purpose of inducing such person to become an employee of Buyer.
ARTICLE 7
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF BUYER
All obligations of Buyer under this Agreement are subject to the fulfillment, prior to or at the Closing, of each of the following conditions, any or all of which may be waived in whole or in part in writing by Buyer:
7.1 Compliance with Representations, Warranties and Agreements . The representations and warranties made by Seller in this Agreement or in any schedule delivered to Buyer pursuant hereto shall have been true and correct in all material respects when made and shall be true and correct in all material respects as of the Effective Time with the same force and effect as if such representations and warranties were made at and as of the Effective Time, except with respect to those representations and warranties specifically made as of an earlier date (in which case such representations and warranties shall be true and correct in all material respects as of such earlier date). Seller shall have performed or complied in all material respects with all material agreements, terms, covenants and conditions required by this Agreement to be performed or complied with by Seller prior to or at the Effective Time except as specifically provided to the contrary in this Agreement.
7.2 Necessary Corporate Actions . Seller shall have taken any and all requisite corporate actions and other steps and secured any other corporate approvals, including any requisite shareholders approval, necessary to authorize and consummate this Agreement and the transactions contemplated hereby.
7.3 Governmental Approvals . Buyer shall have received approvals, acquiescences or consents, all on terms and conditions acceptable to Buyer, from all necessary governmental agencies and authorities to the transactions contemplated by this Agreement, including, but not limited to, the approval of the TDB and the FDIC for Buyer to acquire the Assets and assume the Liabilities and to establish a branch of Buyer at each of the locations of the Branch; provided , however , that no governmental or regulatory consent, approval or authorization shall have imposed any condition or requirement that would result in a Material Adverse Change, or a material adverse effect on the consummation of the transactions contemplated hereby. Such approvals and the transactions contemplated hereby shall not have been contested or threatened to be contested by any federal or state governmental authority or by any other third party by formal proceedings.
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7.4 No Litigation . No action shall have been taken, and no statute, rule, regulation or order shall have been promulgated, enacted, entered, enforced or deemed applicable to the acquisition by any federal, state or foreign government or governmental authority or by any court, domestic or foreign, including the entry of a preliminary or permanent injunction, that would (a) make this Agreement or the transactions contemplated hereby illegal, invalid or unenforceable (b) require the divestiture of a material portion of the Assets or the Liabilities once acquired by Buyer, (c) impose material limits in the ability of Buyer to consummate this Agreement, or the transactions contemplated hereby, or (d) if this Agreement, or the transactions contemplated hereby, is consummated, subject Buyer or any officer, director or employee of Buyer to criminal penalties or to civil liabilities. No action or proceeding before any court or governmental authority, domestic or foreign, by any government or governmental authority or by any other person, domestic or foreign, shall be threatened, instituted or pending that would reasonably be expected to result in any of the consequences referred to in clauses (a) through (d) above.
7.5 No Material Adverse Change . There shall have been no Material Adverse Change since September 30, 2008.
7.6 Consents of Third Parties . Seller shall have obtained all consents of third parties in form and substance reasonably satisfactory to the Buyer, necessary to consummate the transactions contemplated by this Agreement.
7.7 Documentation . The form and substance of all instruments of assumption and other documents delivered pursuant to this Agreement by Seller shall be reasonably satisfactory in all respects to Buyer.
7.8 Delivery of Schedules; Right to Terminate Agreement . In order to provide for the prompt execution of this Agreement, the parties hereto agree that:
A. No later than 5:00 p.m., Central Standard Time, on January 21, 2009, Seller shall have delivered or cause to be delivered to Buyer full and complete disclosure schedules (the Schedules) referred to as being attached to this Agreement, but which are not available on the date of this Agreement. Buyer shall have until 5:00 p.m., Central Standard Time, on January 28, 2009 (the Determination Time) to review the Schedules.
B. If the Schedules are in form or substance unsatisfactory to Buyer, in its sole and absolute discretion, then Buyer may terminate this Agreement by delivering to Seller no later than the Determination Time written notice that Buyer thereby terminates this Agreement.
ARTICLE 8
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF SELLER
All obligations of Seller under this Agreement are subject to the fulfillment, prior to or at the Closing, of each of the following conditions, any or all of which may be waived in whole or in part by Seller.
8.1 Compliance with Representations, Warranties and Agreements . The representations and warranties made by Buyer in this Agreement or in any schedule delivered to Buyer pursuant hereto shall have been true and correct in all material respects when made and shall be true and correct in all material respects as of the Effective Time with the same force and effect as if such representations and warranties were made at and as of the Effective Time, except with respect to those representations and warranties specifically made as of an earlier date (in which case such representations and warranties shall be true and correct in all material respects as of such earlier date). Buyer shall have performed or complied in all
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material respects with all material agreements, terms, covenants and conditions required by this Agreement to be performed or complied with by Buyer prior to or at the Effective Time except as specifically provided to the contrary in this Agreement.
8.2 Necessary Corporate Actions . Buyer shall have taken any and all requisite corporate actions and other steps and secured any other corporate approvals, necessary to authorize and consummate this Agreement and the transactions contemplated hereby.
8.3 Governmental and Other Approvals . Buyer shall have received approvals, acquiescences or consents to the transactions contemplated by this Agreement from all necessary governmental agencies and authorities for the transactions contemplated hereby, and Seller and Buyer shall have received satisfactory evidence that such approvals have been obtained and that any necessary waiting periods have passed. In addition, Buyer shall not have received any objection to the transactions contemplated by this Agreement from any governmental agency or authority.
8.4 No Litigation . No action shall have been taken, and no statute, rule, regulation or order shall have been promulgated, enacted, entered, enforced or deemed applicable to the acquisition by any federal, state or foreign government or governmental authority or by any court, domestic or foreign, including the entry of a preliminary or permanent injunction, that would (a) make this Agreement or the transactions contemplated hereby illegal, invalid or unenforceable or (b) if this Agreement, or the transactions contemplated hereby, is consummated, subject any officer, director or employee of Seller to criminal or civil liability. No action or proceeding before any court or governmental authority, domestic or foreign, by any government or governmental authority or by any other person, domestic or foreign, shall be threatened, instituted or pending that would reasonably be expected to result in any of the consequences referred to in clauses (a) or (b) above.
8.5 Documentation . The form and substance of all instruments of assumption and other documents delivered pursuant to this Agreement by Buyer shall be reasonably satisfactory in all respects to Seller.
ARTICLE 9
SURVIVAL OF REPRESENTATIONS, WARRANTIES, AGREEMENT AND OBLIGATIONS; INDEMNIFICATION
9.1 Survival . The representations and warranties of Seller and Buyer contained in this Agreement shall survive the Effective Time and shall continue thereafter for a period of 18 months after the Closing Date. Such representations and warranties shall not be affected by, and shall remain in full force and effect notwithstanding, any investigation at any time made by or on behalf of any party hereto or any information any party may have with respect thereto.
9.2 Indemnification by Seller . Seller agrees, effective as of the Closing, to pay, and to indemnify, save, defend and hold harmless Buyer and each of its officers, directors, shareholders and representatives (collectively, Insiders), from and against, and shall reimburse Buyer and its Insiders with respect to, any and all damages, liabilities, losses, obligations, actions, suits, disbursements, claims, deficiencies, penalties, interest, expenses, fines, assessments, charges and costs (including, without limitation, reasonable attorneys and expert witness fees, costs of investigation and court costs) of every kind (collectively, Losses), imposed on, incurred by or asserted against Buyer or its Insiders (or any of them) in any way relating to or arising from or out of:
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A. A breach, deficiency, inaccuracy or inadequacy of or in any statement, representation or warranty of Seller contained in this Agreement, or any schedule, certificate or other document delivered pursuant hereto or as part of the transactions contemplated hereby;
B. Ownership or operation of the Branch or their business and properties prior to the Effective Time;
C. Liabilities of Seller that are not expressly assumed by Buyer;
D. A breach of any covenant of Seller or the failure of Seller to perform any agreement, covenant or obligation of Seller contained in this Agreement or in any other agreement or document executed pursuant to this Agreement;
E. Any taxes, including interest and penalties, required to be paid by Seller or its successor, which relate to Sellers business or assets at or prior to the Effective Time;
F. The termination of employment by Seller prior to the Effective Time of any individual who is an officer or employee of Seller; and
G. All refunds or repayments made by Seller following the Effective Time of credit life or single interest insurance premiums on policies that were issued in connection with loans made by Seller prior to the Effective Time and purchased by Buyer.
Any claim for indemnification shall be applicable to each representation independently, irrespective of whether such claim is consistent with any other representation contained in this Agreement.
9.3 Indemnification by Buyer . Buyer hereby agrees, effective as of the Closing, to pay, and to indemnify, save and hold harmless Seller and each of its Insiders from and against, and shall reimburse Seller and its Insiders with respect to, any and all Losses imposed on, incurred by or asserted against Seller or its Insiders (or any of them) in any way relating to or arising from or out of:
A. A breach, deficiency, inaccuracy or inadequacy of or in any statement, representation or warranty of Buyer contained in this Agreement, or any schedule, certificate or other document delivered pursuant hereto or as part of the transactions contemplated hereby;
B. Ownership or operation of the Branch or their business and properties after the Effective Time;
C. Liabilities of Seller that are expressly assumed by Buyer; and
D. A breach of any covenant of Buyer or the failure of Buyer to perform any agreement, covenant or obligation of Buyer contained in this Agreement or in any other agreement or document executed pursuant to this Agreement,
Any claim for indemnification shall be applicable to each representation independently, irrespective of whether such claim is consistent with any other representation contained in this Agreement.
9.4 Limit on Indemnities . Notwithstanding any other provision hereof, the rights of any party to be indemnified shall be subject to the following limitations:
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A. The indemnifying party shall pay claims hereunder when a claim against the indemnified party has been established by a final judgment in litigation or by settlement consented to in writing by Seller and Buyer; and
B. The indemnifying party shall not be liable for any claim covered by the indemnities under Sections 9.2(A) or 9.3(A) unless the indemnifying party has been notified of such claim prior to the 18-month anniversary of the Closing Date.
ARTICLE 10
OPERATIONAL AGREEMENTS
10.1 Replacement of Customer Check Stock and ATM and Debit Cards . As soon as practicable, but in no event later than 10 business days after the Closing Date, Buyer shall mail to each Depositor whose account may be accessed by checks a letter approved by Seller requesting that such Depositor promptly cease writing checks on Sellers check stock against such account. At such time as Buyer mails each such notice to each Depositor, Buyer shall also forward to each Depositor new checks on Buyers check stock, which checks the Depositor may draw upon Buyer for the purpose of effecting transactions with respect to such Deposits. The parties will use reasonable efforts to develop procedures (i) that will cause checks drawn on Sellers form of check stock against Deposits that are received after the Effective Time to be cleared through Buyers then current clearing procedures and (ii) to provide for the delivery of new ATM and debit cards by Buyer and the orderly processing of ATM and debit card transactions.
10.2 Payment of Checks, Drafts, and Orders . After the Effective Time, Buyer agrees (i) to pay in accordance with applicable law, the Deposit Agreements and customary banking practice all checks, drafts and withdrawal orders properly drawn by Depositors and properly presented to Buyer, whether drawn on the checks, withdrawal or draft forms provided by Seller or by Buyer, to the extent that the Deposit balances to the credit of the respective makers or drawers assumed by the Buyer under this Agreement are sufficient to permit the payment thereof (after taking into account any overdraft protection rights of the Depositors), and (ii) in all other respects to discharge, in accordance with applicable law, the Depository Agreements and customary banking practice in the usual course of its banking business, all duties and obligations of Seller with respect to the balances due and owing to the Depositors. If any of the Depositors shall demand payment from Seller for all or any part of any Deposit, Seller shall not be liable or responsible for making such payment. As of the Closing Date, Buyer shall become the holder, as that term is defined in the Texas Property Code (Tex. Prop. Code Ann. Section 73.001), of all the Deposits and safe deposit boxes that Buyer assumes under this Agreement. Buyer will be responsible for the escheat of any property for which it becomes the holder and that becomes abandoned during the calendar year in which the Closing occurs.
10.3 Clearing Items . During the 90-day period following the Closing Date, if it is not possible to clear checks and other items drawn on a Deposit account through Buyers then current clearing procedures, Seller will make provisional settlement to the presenting institution and will forward such checks and other items on such Deposit to Buyer, no later than the next business day after receipt thereof, and Buyer will reimburse Seller for such provisional settlement. Upon the expiration of such 90-day period, Seller shall cease forwarding checks and other debits against the Deposit accounts and return them to the originators marked Account Closed. Upon timely presentation to Buyer, Buyer will assume all responsibility for such items (except for such items that have not been handled by Seller in accordance with applicable law or regulation, or with ordinary care), including but not limited to determining whether to honor or dishonor such items and giving any required notification for the return of items.
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10.4 Returned Items . Buyer agrees, no later than the start of the second business day after demand by Seller, to pay to Seller an amount equivalent to the amount of any uncollected item included in a Depositors balance on the Closing Date that is returned within 60 days after Closing as not collected. Buyer shall be required to make such payment for an item only up to the balance of any funds on deposit with Buyer and any balance available to the customer under any overdraft plan the Depositor has with Buyer at the time Seller makes the demand as aforesaid; provided , however , if prior to the Closing Seller had placed a hold or other similar protective measure on the Depositors account with respect to such item and subsequent to Closing Buyer removes such hold or protective measure other than as required under applicable law or regulation, then Buyer will be obligated to pay to Seller in full on account of such uncollected item. So long as any hold or other protective measure placed on the depositors account with respect to such item complies with applicable law, the placing of any such hold or other protective measure shall not be deemed a breach of this Agreement.
10.5 Data Processing and Utilities . Following the receipt of all required regulatory approvals, Seller shall (i) provide reasonable cooperation to Buyer in converting the current data processing activities of the Branch to Buyers data processing system, and (ii) assist Buyer in the transfer of all utilities relating to the Branch, including the existing phone numbers for the Branch, into the name of Buyer at Buyers expense. As soon as practicable at the request of Buyer after receipt of all required regulatory approvals, Seller shall deliver to Buyer, at Buyers expense, a list of the Deposits (customer names, addresses and tax identification numbers, balances at Closing and maturities of all certificates of deposits), grouped by deposit type, and original or duplicate copies (including electronic copy, magnetic tape, disc storage, card forms and printed copy) of all customer information files and customer records, ACH items, application files, machine operating and application software, full documentation of all application and processing routines, and any other documentation in the possession of Seller and necessary to the orderly operation and conversion to Buyers system of the Branchs data processing operations.
10.6 Compliance with Garnishments and Similar Orders . After the Effective Time, Buyer will comply in all material respects with any and all garnishments, similar court orders, tax liens and order of any governmental entity in effect with respect to the Deposits, and Buyer will not pay any Deposits in violation of such garnishments, orders or tax liens or otherwise take any actions not permitted pursuant thereto or pursuant to applicable law.
10.7 Direct Deposit Arrangements . Seller will use reasonable efforts to transfer to Buyer on the Closing Date all of those automated clearing house and Fed wire direct deposit arrangements that are tied by agreement or other standing arrangement to the Deposits. For a period of 90 days, (the Direct Deposit Cut-off Date), Seller will, no later than the next business day following the date of receipt thereof, remit and transfer by electronic transmission to Buyer all direct deposits intended for the Deposits. After the Direct Deposit Cut-off Date, Seller may discontinue accepting and forwarding automated-clearing-house and Fed-wire entries and funds and return such direct deposits to the originators marked Account Closed.
10.8 Direct Debit Arrangements . With respect to all Deposits that have arrangements providing for direct debit of such accounts by third parties (Direct Debit Accounts), for a period of 90 days after the Closing Date, Seller will forward to Buyer all direct debits on Direct Debit Accounts on the business day following the date of receipt thereof, and will give Buyer a daily accounting of such debits to Buyers clearing account. Thereafter, Seller may discontinue forwarding such entries and return them to the originators marked Account Closed.
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10.9 Final Statements . Seller will render a final statement to each Depositor of an account assumed under this Agreement as to transactions occurring through the Effective Time and will comply with all laws, rules and regulations regarding tax reporting of transactions of such accounts through the Effective Time; provided , however , that Seller shall not be obligated to render a final statement on any account not ordinarily receiving periodic statements in the ordinary course of Sellers business. Seller will be entitled to impose normal fees and service charges on a per-item basis, but Seller will not impose periodic fees or blanket charges in connection with such final statements unless such final statement is made as of a date that would ordinarily carry such periodic fees or blanket charges.
10.10 Interest Reporting and Withholding . All tax information reporting and filing requirements and all tax withholding requirements with respect to the Assets and the Liabilities are the responsibility of Seller up to and through the Closing Date and the responsibility of Buyer thereafter.
10.11 Loans . In connection with the transfer of the Loans, Seller and Buyer agree as follows:
A. The parties will cooperate and use commercially reasonable efforts to cause Buyer to become the beneficiary of credit life, accident and health, vendors single interest premium or similar insurance purchased by or on behalf of such customer on the Loans. For the duration of such insurance, Seller and Buyer agree to cooperate in good faith to develop a mutually satisfactory method by which the issuer of such insurance will make rebate payments to and satisfy claims of the holders of such certificates of insurance after the Effective Time;
B. Each of Buyer and Seller will use commercially reasonable efforts to comply with all notice and reporting requirements of the loan documents or of any law or regulation with respect to the transfer of such loans;
C. Within 30 days after the Closing Date, Buyer will, at its expense, issue new coupon books or similar payment notices for payment of the Loans with instructions to use Buyers coupons or statements and to destroy unused coupons furnished by Seller;
D. For a period of 90 days after the Closing Date, within 3 business days after receipt by Seller of any check or money order made payable to Seller representing payment on a Loan, Seller shall issue and forward a cashiers check made payable to Buyer or wire transfer to the benefit of Buyer in the amount of such item, and forward the item for collection. If the item is returned unpaid, however, Seller shall promptly notify Buyer of such items return and shall forward the original of such item to Buyer. Within three (3) business days after receipt of such returned item, Buyer shall issue and forward a cashiers check or wire transfer to Seller in the amount of such item, and Buyer shall be responsible for any further efforts to collect such item;
E. If the balance due on any Loan has been reduced by Seller as a result of a payment by check received prior to the Closing Date, which item is returned after the Closing Date, the asset value representing the Loan transferred shall be correspondingly increased and an amount in cash equal to such increase shall be paid by Buyer to Seller promptly upon demand.
10.12 Other Items . Following the Effective Time, Seller agrees to deliver immediately, but in no event later than 2 business days after receipt by Seller, to Buyer (i) any collected funds accepted by Seller for credit to any account included in the Deposits, (ii) any refunds or reimbursements of prepaid expenses included in the acquired Assets for which an adjustment to the purchase price was made pursuant to Section 1.8 and which are accepted by Seller, and (iii) any written notices or correspondence received by Seller relating to the Deposits or the Loans. Buyer shall pay to Seller immediately, but in no event later than 2 business days after receipt by Buyer, any refunds or reimbursements of accrued expenses for which an adjustment to the purchase price was made pursuant to Section 1.8 and which are accepted by Buyer. Notwithstanding the foregoing provisions of this Article 10, each of Seller and Buyer
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shall as soon as practicable following the Closing establish demand deposit accounts in favor of the other, and shall credit such accounts with any amounts payable to the other pursuant to this Article 10. The party in whose favor such account is established shall be entitled to draw upon such account by wire transfer at any time. All amounts shall be credited on or before the time that such amounts would otherwise be payable pursuant to the applicable section of this Article 10. Each of Buyer and Seller shall maintain the accounts so established for a period of 90 days after the Closing Date.
10.13 Safe Deposit Box and Safekeeping Business . From and after the Effective Time, Buyer agrees to assume and discharge, in the usual course of banking business, the duties and obligations of Seller with respect to all safe deposit boxes located in the Branch, and to maintain all necessary facilities for the use of such boxes by the renters thereof during the period for which such persons have paid rent therefore in advance to Seller, subject to the provisions of the rental agreements between Seller and the respective renters of such boxes. From and after the Closing, Buyer shall assume, honor, and discharge the duties and obligations of Seller with respect to all safekeeping items obtained from Seller and shall be entitled to any right or benefit thereafter. At the Closing, Seller shall provide Buyer with a true and correct list of all Safe Deposit Contracts with respect to the Branch in effect as of the Closing Date, together with the rentals or other amounts paid on such Safe Deposit Contracts and the expiration dates of such Safe Deposit Contracts.
10.14 Noncompetition Agreement . For and in consideration of the purchase by Buyer of the Assets and the assumption of the Liabilities, the payment of the Premium and the other agreements and covenants contained in this Agreement, from the date hereof and for a period of 3 years following the Closing Date, none of Seller or any of its affiliates, including, without limitation, its directors, will (i) establish, own or operate a branch or other office within a 30 mile radius of the Branch (the Noncompete Area), or (ii) solicit the banking business of any current customers of the Branch whose banking business or any part thereof is transferred to Buyer pursuant to the terms of this Agreement. Notwithstanding the foregoing sentence, Seller shall not be deemed to be in violation of this Section 10.14 by virtue of (i) Sellers acceptance after the Closing Date of deposits received by Seller at any of its offices from persons or firms providing an address within the Noncompete Area, (ii) Sellers continued banking dealings, including marketing, with current customers of the Branch who also maintain accounts with Seller at other banking offices of Seller, who are identified in Schedule 10.14 , (iii) Sellers advertising in publications that are normally distributed in geographic areas that include both the Noncompete Area and geographic markets served by Sellers branches other than the Branch, or (iv) Sellers collection of Loans not purchased by Buyer (the Retained Borrowers) or Sellers continued banking dealings with, including marketing to, the Retained Borrowers. In the event the Seller engages in a merger or similar transaction to which it is not the successor, the agreements and covenants contained in this Section 10.14 shall not apply to the operations of such successor in the Noncompete Area in which such successor has had a continuing presence for at least 12 months prior to consummation of such successors acquisition of Seller (a Preexisting Presence). Nothing in the preceding sentence will release such a successor from the agreements and covenants contained in this Section 10.14 in any Noncompete Area in which such successor did not have a Preexisting Presence. In the event such successor subsequently acquires a bank or bank holding company that has a Preexisting Presence in a Noncompete Area, such successor may continue the operations of such bank or bank holding company in any Noncompete Area in which a Preexisting Presence exists without regard to the noncompete provisions of this Section 10.14. If any court of competent jurisdiction should determine that any term or terms of this covenant are too broad in terms of time, geographic area, lines of commerce or otherwise, such court shall modify and revise any such term or terms so that they comply with applicable law. Seller hereby acknowledges and agrees that Buyer will be irreparably damaged if the provisions of this Section 10.14 are not specifically enforced. Accordingly, Buyer shall be entitled to an injunction restraining any violation of this Section 10.14 by Seller (without any bond or other security being required), or any other appropriate decree of specific performance. Such remedies shall not be exclusive and shall be in addition to any other remedy that Buyer may have at law or in equity.
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10.15 Books and Records . Buyer shall allow Seller and its authorized agents and representatives to inspect any of the Records for any proper purpose during regular business hours after the Closing Date upon reasonable notice to Buyer (which notice shall specify the purpose of such inspection), and Seller may, at its own expense, make such copies of and excerpts from such books and records as it may deem desirable; provided , however , that all information, including copies of books and records, obtained by Seller from Buyer pursuant to this Section shall be and remain confidential information known to Seller or otherwise contained in Sellers books and records. Buyer shall maintain all material books and records relating to the Assets, the Liabilities and the business of the Branch for a period that is not less than the greater of (i) the period required by applicable law, rule or regulation or (ii) 3 years from the Closing Date.
10.16 Optical Disk Records . After the Closing Date, Seller shall provide research assistance, on a case-by-case basis, with respect to the Assets and Liabilities, to the extent the Records are only available as Optical Disk Records. Seller will use commercially reasonable efforts to comply with each research request made by Buyer on a timely basis. Buyer will reimburse Seller for reasonable search costs incurred.
10.17 Taxes . Buyer shall be responsible for the payment of all taxes (including transfer taxes), recording fees, Uniform Commercial Code filing fees and the like arising as a result of the purchase of the Assets; except that Buyer shall not be responsible for, or have any liability with respect to, taxes on any income to Seller arising out of this transaction. Seller shall cooperate with Buyer in Buyers efforts to minimize all taxes and fees payable by Buyer, if any, as a result of the transactions contemplated by this Agreement, provided that Seller can do so without incurring any out-of-pocket costs or expenses.
ARTICLE 11
EMPLOYEE MATTERS
The parties shall follow the following procedure in dealing with employees of the Branch regarding employment after the Closing:
11.1 Notice to Employees and Information . With respect to all employees of Seller affiliated with the Branch (Branch Employees), as soon as reasonably practicable, but no later than 10 days after the date hereof, Seller shall notify each Branch Employee that Seller and Buyer have entered into an agreement with respect to the Buyers acquisition of the Branch. Seller shall also furnish to Buyer within such time period a schedule containing the name of each Employee, such Employees salary and benefits, and a synopsis of each Employees tenure with Seller and any other information reasonably requested by Buyer with respect to such Employee.
11.2 Offer of Employment . Buyer shall consider for employment all Branch Employees in substantially their then current positions with remuneration not less than current levels and benefits generally equivalent to current levels, provided that nothing herein shall require the Buyer to consider any Employee for subsequent employment, nor shall anything herein prohibit the Buyer from subsequently deciding to terminate any Assumed Employee (defined below) for any reason. No later than 15 days prior to the Closing Date, Buyer will offer employment to each of the Employees at their salaries as of the date of this Agreement, except for those Employees set forth on Schedule 11.2 . To the extent permitted by applicable law, the period of service with Seller of each Branch Employee who accepts employment with Buyer (each an Assumed Employee) shall be recognized only for vesting and eligibility purposes under Buyers benefit plans. Buyer shall permit each of the Assumed Employees to participate in the same
26
health, vacation and other benefits as Buyer provides to its other employees, provided that Buyer shall not be obligated to make any contribution to any plan or program on behalf of any of such employees, with respect to any period prior to the Closing. Pre-existing condition restrictions of the Buyers health plan shall be waived with regard to the Assumed Employees; provided , however , that to the extent a pre-existing exclusion applied to such Assumed Employee under Sellers health plan, such pre-existing condition exclusion shall continue to apply under the Buyers health plan. All sick leave and disability leave accrued and not used by an Assumed Employee prior to the Closing Date shall be maintained by Buyer after the Closing Date. For purposes of determining each Assumed Employees vacation benefit with the Buyer for the year in which the Effective Time occurs under Buyers vacation program, any vacation taken by an Assumed Employee while employed with Seller preceding the Closing Date for the year in which the Effective Time occurs will be deducted from the total buyer vacation benefit for which such Assumed Employee is eligible for such year under the Buyers vacation program. After the Closing Date, Assumed Employees will be employed on an at-will basis by the Buyer provided , however , Buyer agrees not to terminate from employment any Assumed Employee except for cause for a period of 6 months following the Closing Date. It is further provided that in no way shall Buyer be liable for any claims of that any Employee may have against Seller and Buyer may request a release from each Employee with respect thereto.
11.3 Costs of Termination . Seller shall pay any and all costs (including, without limitation, severance pay and accrued vacation pay) associated with termination of any Employee, other than the Assumed Employees, who is terminated by Seller prior to the Closing Date.
11.4 Communications . Buyer and Seller shall coordinate all communications to Employees, provided, however , this paragraph shall not be construed to require Buyer and Seller to act jointly at any time.
11.5 Sellers Retention of Liabilities . Seller shall retain all liabilities and obligations (including, without limitation, the liability and obligation for all wages, salary, vacation pay and unemployment, medical, dental, vision, health, disability and retirement benefits), for any claims incurred by any employee of the Branch prior to the Effective Time. Buyer shall not at any time assume any liability for the benefits of any employee of the Branch under any of Sellers benefit plans. Seller shall be responsible for providing any employee of the Branch whose qualifying event, within the meaning of section 4980B(f)(3) of the Internal Revenue Code of 1986, as amended (the Code), occurs on or prior to the Effective Time (and such Employees qualified beneficiaries within the meaning of section 4980B(g)(1) of the Code) with the continuation of group health coverage required by section 4980B(f) of the Code under the terms of the health plan maintained by Seller.
11.6 No Third Party Beneficiaries . Nothing in this Article is intended, nor shall it be construed, to confer any rights or benefits upon any person other than Buyer and Seller.
ARTICLE 12
TERMINATION AND ABANDONMENT
12.1 Right of Termination . This Agreement and the transactions contemplated hereby may be terminated and abandoned at any time prior to or at the Closing as follows, and in no other manner:
A. By the mutual consent of Seller and Buyer;
B. By either Buyer or Seller, if the Closing has not occurred by the 180 th day after the date of this Agreement, or such other date as Seller and Buyer shall agree in writing, unless the failure to so consummate by such time is due to a breach of this Agreement by the party seeking to terminate;
27
C. By Buyer if there shall be any actual or threatened litigation to restrain or invalidate the sale of the Assets to, or the assumption of the Liabilities by, Buyer that, in the good faith judgment of Buyer, after consultation with counsel and Seller, makes it inadvisable to proceed with such transaction;
D. By Seller if there shall be any actual or threatened litigation to restrain or invalidate the sale of the Assets to, or the assumption of the Liabilities by, Buyer that, in the good faith judgment of Seller, after consultation with counsel and Buyer, makes it inadvisable to proceed with such transaction;
E. By Buyer if there shall have been any Material Adverse Change since September 30, 2008;
F. By either Buyer or Seller in the event of a material breach by the other of any representation, warranty or agreement contained herein that is not cured or cannot be cured within 30 days after written notice of such termination has been delivered to the breaching party; provided , however , that termination pursuant to this provision shall not relieve the breaching party of liability for such breach; or
G. By Buyer pursuant to Section 7.8B.
12.2 Notice of Termination . The power of termination provided for by Section 12.1 may be exercised only by a notice given in writing, as provided in Section 13.4.
12.3 Effect of Termination . Without limiting any other relief to which either party hereto may be entitled, in the event of the termination and abandonment of this Agreement pursuant to the provisions of Section 12.1, no party to this Agreement shall have any further liability or obligation in respect of this Agreement, except for (a) liability of a party for expenses pursuant to Section 13.11, and (b) the provisions of Section 13.15 shall remain applicable.
ARTICLE 13
MISCELLANEOUS
13.1 Entire Agreement . This Agreement and the other agreements, documents and instruments executed and delivered by the parties to each other at the Closing constitute the full understanding of the parties, a complete allocation of risks between them and a complete and exclusive statement of the terms and conditions of their agreement relating to the subject matter hereof and supersede any and all prior agreements, whether written or oral, that may exist between the parties with respect thereto.
13.2 Multiple Counterparts . For the convenience of the parties hereto, this Agreement may be executed in multiple counterparts, each of which shall be deemed an original, and all counterparts hereof so executed by the parties hereto, whether or not such counterpart shall bear the execution of each of the parties hereto, shall be deemed to be, and shall be construed as, one and the same Agreement. A telecopy or facsimile transmission of a signed counterpart of this Agreement shall be sufficient to bind the party or parties whose signature(s) appear thereon.
28
13.3 Amendment . This Agreement may be amended, modified or supplemented only by a written instrument signed by each party hereto.
13.4 Notices . Any and all notices and other communications required or permitted to be given under this Agreement by any party hereto to the other party may be delivered personally or by overnight courier service or sent by mail, telex or facsimile transmission, at the respective addresses or transmission numbers set forth below and shall be effective upon the earlier of actual receipt or (a) in the case of mail, upon the earlier of actual receipt or 3 business days after deposit in the United States Postal Service, first class certified or registered mail, postage prepaid, return receipt requested; and (b) in the case of overnight courier service, one business day after delivery to such courier service with instructions to deliver the next business day. The parties may change their respective addresses and transmission numbers by written notice to all other parties, sent as provided in this Section. All communications must be in writing and addressed as follows:
If to Seller: |
Independent Bank | |
3090 Craig Drive |
||
McKinney, Texas 75070 |
||
Attn: David R. Brooks, President |
||
Telecopy: (972) 562-3815 |
||
If to Buyer: |
First State Bank | |
100 N. McKinney |
||
Rice, Texas 75155 |
||
Attn: Michael Montgomery |
||
Telecopy: (903) 326-4451 |
13.5 Binding Effect . All of the terms, covenants, representations, warranties and conditions of this Agreement shall be binding upon, and inure to the benefit of and be enforceable by, the parties hereto and their respective successors, representatives and permitted assigns. Nothing expressed or referred to herein is intended or shall be construed to give any person other than the parties hereto any legal or equitable right, remedy or claim under or in respect of this Agreement, or any provision herein contained, it being the intention of the parties hereto that this Agreement, the assumption of obligations and statements of responsibilities hereunder, and all other conditions and provisions hereof are for the sole benefit of the parties to this Agreement and for the benefit of no other person. Nothing in this Agreement shall act to relieve or discharge the obligation or liability of any third party to any party to this Agreement, nor shall any provision give any third party any right of subrogation or action over or against any party to this Agreement.
13.6 Governing Law . This Agreement shall be construed in accordance with and governed by the laws of the State of Texas.
13.7 Attorneys Fees and Costs . In the event attorneys fees or other costs are incurred to secure performance of any of the obligations herein provided for, or to establish damages for the breach thereof, or to obtain any other appropriate relief, whether by way of prosecution or defense, the prevailing party shall be entitled to recover reasonable attorneys fees and costs incurred therein.
13.8 Severability . In the event that any provision of this Agreement is held to be illegal, invalid or unenforceable under present or future laws, then (a) such provision shall be fully severable and this Agreement shall be construed and enforced as if such illegal, invalid or unenforceable provision were not a part hereof; (b) the remaining provisions of this Agreement shall remain in full force and effect and shall not be affected by such illegal, invalid or unenforceable provision or by its severance from this
29
Agreement; and (c) there shall be added automatically as a part of this Agreement a provision as similar in terms to such illegal, invalid or unenforceable provision as may be possible and still be legal, valid and enforceable.
13.9 Assignability . No party to this Agreement shall assign this Agreement, by operation of law or otherwise, in whole or in part, without the prior written consent of the other parties. Any assignment made or attempted in violation of this Section shall be void and of no effect.
13.10 Rules of Construction . All sections referred to herein are sections of this Agreement and all exhibits and schedules referred to herein are exhibits and schedules, respectively, attached to this Agreement. Descriptive headings as to the contents of particular sections are for convenience only and shall not control or affect the meaning, construction or interpretation of any provision of this Agreement. The exhibits and schedules to this Agreement (and any appendices thereto) referred to in this Agreement and attached hereto are and shall be incorporated herein and made a part hereof for all purposes as though set forth herein verbatim. Each use herein of the masculine, neuter or feminine gender shall be deemed to include the other genders. Each use herein of the plural shall include the singular and vice versa, in each case as the context requires or as it is otherwise appropriate. The word or is used in the inclusive sense.
13.11 Expenses . Seller shall pay all of its expenses and costs (including, without limitation, all attorneys fees and expenses and application fees), and Buyer shall pay all of its expenses and costs (including, without limitation, all attorneys fees and expenses and application fees), in connection with this Agreement and the consummation of the transactions contemplated hereby.
13.12 Waiver . Any of the terms or conditions of this Agreement may be waived at any time by the party that is entitled to the benefit thereof. Such action shall be evidenced by a signed written notice given in the manner provided in Section 13.4. No party to this Agreement shall by any act (except by a written instrument given pursuant to Section 13.4) be deemed to have waived any right or remedy hereunder or to have acquiesced in any breach of any of the terms and conditions hereof. No failure to exercise, nor any delay in exercising any right, power or privilege hereunder by any party hereto shall operate as a waiver thereof. No single or partial exercise of any right, power or privilege hereunder shall preclude any other or further exercise thereof or the exercise of any other right, power or privilege. A waiver of any party of any right or remedy on any one occasion shall not be construed as a bar to any right or remedy that such party would otherwise have on any future occasion or to any right or remedy that any other party may have hereunder.
13.13 Specific Performance . Each of the parties hereto acknowledges that the other parties would be irreparably damaged and would not have an adequate remedy at law for money damages in the event that any of the covenants contained in this Agreement were not performed in accordance with its terms or otherwise were materially breached. Each of the parties hereto therefore agrees that, without the necessity of proving actual damages or posting bond or other security, the other party shall be entitled to temporary and/or permanent injunction or injunctions to prevent breaches of such performance and to specific enforcement of such covenants in addition to any other remedy to which they may be entitled, at law or in equity.
13.14 Public Disclosure . Seller and Buyer will consult with each other regarding the content of any press release or other public disclosure concerning this transaction and obtain the prior written approval of the other party hereto; provided , however , that notwithstanding anything else contained in this Section, Seller and Buyer shall be permitted to make any public disclosure or governmental filings as its counsel may deem necessary to maintain compliance with or to prevent violations of applicable federal or state laws or regulations.
30
13.15 Confidential Information . Except as may be required by applicable securities laws or as may be necessary to obtain the regulatory approvals as described in Section 7.3, Seller and Buyer will treat as confidential any information related to the transactions described herein obtained from any other party. Seller and Buyer will use such information, and not disclose it to others, except their employees, advisors, directors and agents, expressly for the purposes of evaluating the potential of consummating the transactions proposed herein. The term information does not include any information that (a) at the time of disclosure or thereafter is generally available to and known by the public, (b) was available on a nonconfidential basis from a source other than Seller or Buyer or (c) was independently acquired or developed without violating any laws or obligations under this Agreement.
13.16 Arbitration.
A. Any controversy or claim between Buyer and Seller arising out of or relating to this Agreement or any agreements or instruments relating hereto or delivered in connection herewith, including, but not limited to, a claim based on or arising from an alleged tort, will, at the request of any party, be determined by arbitration in accordance with the United States Arbitration Act (Title 9, U.S. Code), notwithstanding any choice of law provision in this Agreement, and under the Commercial Rules of the American Arbitration Association ( AAA ). The AAA will be instructed by either or both parties to prepare a list of proposed arbitrators. Within 10 days of receipt of the list, each party may strike one name from the list. The AAA will then appoint one arbitrator from the name(s) remaining on the list. The arbitration will be conducted in Dallas, Texas. The arbitrator shall give effect to statutes of limitation in determining any claim. Any controversy concerning whether an issue is arbitrable shall be determined by the arbitrator. The award rendered by the arbitrator shall set forth findings of the facts and conclusions of law and shall be final, and the judgment may be entered in any court having jurisdiction thereof. A failure by the arbitrator to make findings of fact and conclusions of law shall be grounds for overturning the award. The institution and maintenance of an action for judicial relief or pursuit of a provisional or ancillary remedy shall not constitute a waiver of the right of any party, including the plaintiff, to submit the controversy or claim to arbitration if any other party contests such action for judicial relief; and
B. In any arbitration proceeding, the arbitrator is authorized to apportion costs and expenses, including investigation, legal and other expense, which will include, if applicable, a reasonable estimate of allocated costs and expenses of in-house legal counsel and legal staff. Such costs and expenses are to be awarded only after the conclusion of the arbitration and will not be advanced during the course of such arbitration.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized officers and their corporate seals to be hereunto affixed as of the date first above written.
Buyer:
FIRST STATE BANK |
||
By: | /s/ Michael J. Montgomery | |
Michael J. Montgomery President |
||
Seller:
INDEPENDENT BANK |
||
By: | /s/ David R. Brooks | |
David R. Brooks President |
32
Exhibit 10.24
EXECUTION COPY
PURCHASE AND ASSUMPTION AGREEMENT
by and between
CITIZENS NATIONAL BANK
Cameron, Texas
and
INDEPENDENT BANK
McKinney, Texas
Dated as of June 29, 2012
Purchase and Assumption Agreement
TABLE OF CONTENTS
Page | ||||||
ARTICLE 1 SALE AND PURCHASE OF CERTAIN ASSETS AND ASSUMPTION AND TRANSFER OF CERTAIN LIABILITIES |
1 | |||||
1.1 |
Sale of Assets. | 1 | ||||
1.2 |
Assets to be Retained by Seller. | 2 | ||||
1.3 |
Assumption of Liabilities of Seller | 3 | ||||
1.4 |
Liabilities to be Retained by Seller | 3 | ||||
1.5 |
Purchase Price and Payment | 4 | ||||
1.6 |
The Closing, the Closing Date and the Effective Time. | 4 | ||||
1.7 |
Preliminary Balance Sheet and Final Balance Sheet | 5 | ||||
1.8 |
Adjustments | 5 | ||||
1.9 |
Deliveries by Seller at the Closing | 6 | ||||
1.10 |
Deliveries by Buyer at the Closing | 7 | ||||
1.11 |
Closing Costs and Recording. | 7 | ||||
1.12 |
Further Assurances | 8 | ||||
ARTICLE 2 REPRESENTATIONS AND WARRANTIES OF SELLER |
8 | |||||
2.1 |
Organization and Standing. | 8 | ||||
2.2 |
Execution and Delivery | 8 | ||||
2.3 |
Compliance with Laws, Permits and Instruments. | 8 | ||||
2.4 |
Litigation | 9 | ||||
2.5 |
Consents. | 9 | ||||
2.6 |
Title to and Condition of the Assets | 9 | ||||
2.7 |
Financial Statements | 9 | ||||
2.8 |
Real Property | 10 | ||||
2.9 |
Environmental Matters | 10 | ||||
2.10 |
Leases | 11 | ||||
2.11 |
Contracts | 11 | ||||
2.12 |
Absence of Certain Changes or Events. | 11 | ||||
2.13 |
No Adverse Change | 12 | ||||
2.14 |
Evidences of Indebtedness | 12 | ||||
2.15 |
Books and Records | 12 | ||||
2.16 |
Regulatory Compliance. | 12 | ||||
2.17 |
Brokerage Fees | 12 | ||||
2.18 |
Employee Matters | 12 | ||||
2.19 |
Employee Relations | 13 | ||||
2.20 |
Sufficiency and Condition of Properties. | 13 | ||||
2.21 |
Taxes. | 13 | ||||
2.22 |
Misstatement | 13 | ||||
ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF BUYER |
13 | |||||
3.1 |
Organization and Standing. | 13 | ||||
3.2 |
Execution and Delivery. | 13 | ||||
3.3 |
Compliance with Laws, Permits and Instruments. | 14 | ||||
3.4 |
Litigation. | 14 |
3.5 |
Consents. | 14 | ||||
3.6 |
Brokerage Fees | 14 | ||||
3.7 |
Regulatory Conditions | 14 | ||||
ARTICLE 4 COVENANTS OF SELLER |
15 | |||||
4.1 |
Reasonable Efforts | 15 | ||||
4.2 |
Information for Governmental Applications | 15 | ||||
4.3 |
Required Acts of Seller. | 15 | ||||
4.4 |
Prohibited Acts of Seller. | 16 | ||||
4.5 |
Access; Pre-Closing Investigation | 17 | ||||
4.6 |
Additional Financial Statements | 17 | ||||
4.7 |
Notice of Adverse Changes, Litigation and Claims | 17 | ||||
4.8 |
No Disclosure or Negotiation with Others. | 18 | ||||
4.9 |
Notices to Customers | 18 | ||||
4.10 |
Sale of Participations | 18 | ||||
ARTICLES COVENANTS OF BUYER |
19 | |||||
5.1 |
Reasonable Efforts | 19 | ||||
5.2 |
Regulatory Approvals | 19 | ||||
5.3 |
Notice of Adverse Changes, Litigation and Claims | 19 | ||||
5.4 |
Change of Name, Notice to Customers | 19 | ||||
5.5 |
Use of Name. | 19 | ||||
5.6 |
Solicitation of Employees of the Branch | 20 | ||||
ARTICLE 6 CONDITIONS PRECEDENT TO THE OBLIGATIONS OF BUYER |
20 | |||||
6.1 |
Compliance with Representations, Warranties and Agreements | 20 | ||||
6.2 |
Necessary Corporate Actions. | 20 | ||||
6.3 |
Governmental Approvals | 20 | ||||
6.4 |
No Litigation. | 21 | ||||
6.5 |
Consents of Third Parties. | 21 | ||||
6.6 |
Documentation | 21 | ||||
6.7 |
Deposits | 21 | ||||
6.8 |
Title Insurance; Survey | 21 | ||||
6.9 |
Environmental. | 22 | ||||
6.10 |
Participations. | 22 | ||||
ARTICLE 7 CONDITIONS PRECEDENT TO THE OBLIGATIONS OF SELLER |
22 | |||||
7.1 |
Compliance with Representations, Warranties and Agreements | 22 | ||||
7.2 |
Necessary Corporate Actions. | 22 | ||||
7.3 |
Governmental and Other Approvals | 22 | ||||
7.4 |
No Litigation. | 23 | ||||
7.5 |
Documentation. | 23 | ||||
ARTICLE 8 SURVIVAL OF REPRESENTATIONS, WARRANTIES, AGREEMENT AND OBLIGATIONS; INDEMNIFICATION | 23 | |||||
8.1 |
Survival. | 23 |
ii
8.2 |
Indemnification by Seller. | 23 | ||||
8.3 |
Indemnification by Buyer | 24 | ||||
ARTICLE 9 OPERATIONAL AGREEMENTS |
25 | |||||
9.1 |
Replacement of Customer Check Stock and ATM and Debit Cards | 25 | ||||
9.2 |
Payment of Checks, Drafts, and Orders. | 25 | ||||
9.3 |
Clearing Items. | 26 | ||||
9.4 |
Returned Items | 26 | ||||
9.5 |
Data Processing and Utilities | 26 | ||||
9.6 |
Compliance with Garnishments and Similar Orders. | 27 | ||||
9.7 |
Direct Deposit Arrangements. | 27 | ||||
9.8 |
Direct Debit Arrangements | 27 | ||||
9.9 |
IRA Deposits. | 27 | ||||
9.10 |
Keogh Accounts | 27 | ||||
9.11 |
Final Statements | 28 | ||||
9.12 |
IRA Deposits and Keogh Accounts | 28 | ||||
9.13 |
Interest Reporting and Withholding. | 28 | ||||
9.14 |
Loans | 28 | ||||
9.15 |
Other Items. | 29 | ||||
9.16 |
Safe Deposit Box and Safekeeping Business | 29 | ||||
9.17 |
Noncompetition Agreement. | 30 | ||||
9.18 |
Books and Records | 30 | ||||
9.19 |
Optical Disk Records | 31 | ||||
9.20 |
Taxes. | 31 | ||||
9.21 |
Allocation of Purchase Price | 31 | ||||
ARTICLE 10 EMPLOYEE MATTERS |
31 | |||||
10.1 |
Notice to Employees and Information | 31 | ||||
10.2 |
Offer of Employment. | 32 | ||||
10.3 |
Costs of Termination. | 32 | ||||
10.4 |
Communications | 32 | ||||
10.5 |
Sellers Retention of Liabilities | 32 | ||||
10.6 |
No Third Party Beneficiaries | 32 | ||||
ARTICLE 11 TERMINATION AND ABANDONMENT |
33 | |||||
11.1 |
Right of Termination | 33 | ||||
11.2 |
Notice of Termination. | 33 | ||||
11.3 |
Effect of Termination. | 33 | ||||
ARTICLE 12 MISCELLANEOUS |
34 | |||||
12.1 |
Entire Agreement | 34 | ||||
12.2 |
Multiple Counterparts | 34 | ||||
12.3 |
Amendment. | 34 | ||||
12.4 |
Notices | 34 | ||||
12.5 |
Binding Effect. | 35 | ||||
12.6 |
Governing Law | 35 | ||||
12.7 |
Attorneys Fees and Costs | 35 |
iii
12.8 |
Severability | 36 | ||||
12.9 |
Assignability | 36 | ||||
12.10 |
Rules of Construction. | 36 | ||||
12.11 |
Expenses | 36 | ||||
12.12 |
Waiver. | 36 | ||||
12.13 |
Specific Performance | 37 | ||||
12.14 |
Public Disclosure | 37 | ||||
12.15 |
Confidential Information | 37 | ||||
12.16 |
Arbitration. | 37 | ||||
Exhibits |
||||||
Exhibit A |
Closing Settlement Amounts | |||||
Exhibit B |
Bill of Sale | |||||
Exhibit C |
Special Warranty Deed | |||||
Exhibit D |
Power of Attorney | |||||
Exhibit E |
Assignment and Assumption Agreement | |||||
Exhibit F |
Financial Statements | |||||
Exhibit G |
Participation Agreement |
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PURCHASE AND ASSUMPTION AGREEMENT
THIS PURCHASE AND ASSUMPTION AGREEMENT (this Agreement) is made and entered into as of the 29 day of June, 2012 by and between Citizens National Bank, a national banking association having its main office in Cameron, Texas (Buyer), and Independent Bank, a Texas state banking association having its main office in McKinney, Texas (Seller).
RECITALS:
WHEREAS, Seller desires to sell and transfer to Buyer, and Buyer desires to purchase certain assets from Seller associated with Sellers branch banking operations at 102 Hoxie Street, Coupland, Texas 78615-5035 (the Branch) and to assume certain liabilities of Seller associated with the Branch as hereinafter described on the terms and subject to the conditions set forth herein;
NOW, THEREFORE, for and in consideration of the foregoing and of the mutual representations, warranties, covenants and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and subject to the conditions herein set forth, the parties hereto, intending to be legally bound hereby, do undertake, promise, covenant and agree with each other as follows:
ARTICLE 1
SALE AND PURCHASE OF CERTAIN ASSETS
AND ASSUMPTION AND TRANSFER OF CERTAIN LIABILITIES
1.1 Sale of Assets.
On the terms and subject to the conditions contained in this Agreement, at the Closing (as defined in Section 1.6) Buyer shall purchase from Seller and Seller shall sell, convey, assign, transfer and deliver to Buyer the following assets of the Branch as a going concern, free and clear of all liens, security interests, pledges, encumbrances, adverse claims and demands of every kind, character and description whatsoever (other than liens for taxes not yet due, referred to herein as Permitted Liens), except as otherwise provided in this Agreement (all of which are collectively referred to herein as the Assets):
A. All cash on hand at the Branch as of the close of business on the Closing Date including vault cash, petty cash, tellers cash and cash items in the process of collection (the Cash on Hand). At the Closing, Seller shall deliver to Buyer Schedule 1.1(a) (Schedule of Cash) including the amount and location of Sellers Cash on Hand as of the close of business on the date preceding the Closing Date;
B. All loans, overdrafts, overdraft protections, overdraft lines, or other extensions of credit listed on Schedule 1.1(b), which schedule shall be updated as of the Closing upon the mutual consent of the Buyer and Seller (the Loans), plus accrued but unpaid interest on such Loans through the Closing Date;
C. All real property and improvements (Real Property) on which the Branch is located or used by the Seller with respect to its operation of the Branch as described on Schedule 1.1(c);
D. All furniture, fixtures, equipment and other tangible personal property located at the Branch or affixed to the Real Property at which the Branch is located including, without limitation, the furniture, fixtures, equipment and other tangible personal property set forth on Schedule 1.1(d) (the Personal Property), exclusive of (i) all signage,(ii) the contents of safe deposit boxes, and (iii) the property identified as Excluded Personal Property on Schedule 1.1(d)(1) ;
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E. All rights of Seller under safe deposit contracts and leases for the safe deposit boxes located at the Branch as of the Effective Time (the Safe Deposit Contracts);
F. All rights of Seller under express or implied warranties given or made in connection with the Assets, if any;
G. All books, records (including computer records), files and documentation relating to the Assets and the Liabilities in the form and manner kept by Seller, including without limitation, in electronic format (the Records), including, but not limited to:
Signature cards, orders and contracts between Seller and its depositors, and records of similar character;
(ii) Loan and collateral records and credit files; and
(iii) The Safe Deposit Contracts.
It is understood that certain of Sellers records may be available only in the form of photocopies, film copies or other non-original and non-paper media. Further, it is understood that certain historical records are available only on optical disk and are intermingled with other records of Seller (the Optical Disk Records). The Optical Disk Records will remain in the possession of Seller; after the Closing Date, Seller will provide printed copies of information contained in the Optical Disk Records pursuant to Section 9.19 of this Agreement.
Buyer shall succeed to all rights, title, benefits and interests in and to the Assets as of the Effective Time, and shall be entitled to receive all benefits therefrom as if Buyer had itself acquired such assets.
1.2 Assets to be Retained by Seller.
Seller shall retain all assets not expressly purchased by Buyer pursuant to Section 1.1, including, but not limited to (i) all investment securities owned by Seller; (ii) all of the Sellers investments in Sellers affiliates and subsidiaries; (iii) all other real estate owned by Seller or carried as in substance foreclosures that are associated with the Branch (if any) and identified on Schedule 1.2(iii); (iv) all repossessed personal property owned by, or in the possession of, the Seller, unless such personal property is collateral for a Loan; (v) all of the Sellers life insurance policies; (vi) all loans or participations in loans that are not Loans, including any loans previously charged-off by the Seller; (vii) reserves for loan losses on all loans (including the Loans); (viii) all assets and records associated with any investment, trust or brokerage business of Seller or its affiliates, whether conducted at the Branch or any other location of Seller; (ix) all deferred tax assets; (x) all intangible assets, including goodwill and mortgage servicing rights, of Seller; (xi) all rights to the name Independent Bank and any of Sellers corporate logos, trademarks, trade names, signs, paper stock, monetary instruments (including, but not limited to, travelers checks and cashiers checks), forms and other supplies containing any such logos, trademarks or tradenames; (xii) all customer and merchant credit card accounts; (xiii) all trust assets and trust accounts, if any; and (xiv) any other assets listed on Schedule 1.2 (collectively, the Excluded Assets). Seller shall coordinate with Buyer to remove the Excluded Assets from the Branch prior to the Effective Time. Sellers signage shall be removed from the Branch by Seller at its own cost promptly, but in no event later than the Effective Time.
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1.3 Assumption of Liabilities of Seller.
At the Closing, subject to the conditions contained herein, Seller shall transfer and assign to Buyer, and Buyer shall assume, pay for, perform and discharge after the Effective Time, as and when due and payable, the following liabilities of Seller attributable to the Branch and reflected on the books and records of Seller (all of which are collectively referred to herein as the Liabilities):
A. All deposits associated with the Branch as of the Effective Time (the Deposits), a list of which as of April 30, 2012 is attached hereto as Schedule 1.3(a), and accrued and unpaid interest on any interest-bearing deposits through the Effective Time (Accrued Interest), together with all duties and obligations of Seller arising after the Effective Time associated therewith, including, but not limited to, the agreements with customers associated with such deposits (the Deposit Agreements; the holders of record of the Deposits are hereinafter referred to as the Depositors); provided, however, that the Deposits shall not include (i) deposits which are pledged to secure loans of Seller which are not Loans and which are listed on Schedule 1.3(a); and (ii) any deposit accounts that have become or are deemed dormant or closed accounts by Seller;
B. All liabilities, duties and obligations of Seller arising or based on circumstances, events, acts or omissions occurring after the Effective Time under the Safe Deposit Contracts;
C. The other book liabilities of the Seller attributable to the Branch identified on Schedule 1.3(c), together with any accrued and unpaid interest on any such liabilities through the Effective Time (the Other Liabilities); and
D. All duties and obligations of Seller arising or based on circumstances, events, acts or omissions occurring after the Effective Time under the loan documents related to the Loans.
Buyer shall as of the Effective Time, assume, pay, discharge and perform all of the Liabilities as if Buyer had itself incurred such obligations and liabilities, and Buyer shall succeed to all rights, offsets and defenses of Seller in connection therewith. The parties understand and agree that Seller will have no obligation to make payments after the Closing Date with respect to any service or maintenance contracts that cover equipment or facilities located at the Branch, a list of which shall be provided to Buyer. For purposes of this Agreement, the term deposit shall include, but not be limited to, all uncollected items included in the depositors balances and credited on the books of Seller. Notwithstanding anything contained herein to the contrary, except as specifically set forth herein, Buyer is not assuming any liability, debts, agreements, commitments, undertaking or obligations of Seller arising or based on circumstances, events, acts or omissions occurring on or prior to the Effective Time.
1.4 Liabilities to be Retained by Seller.
Seller shall retain all liabilities or obligations not expressly assumed by Buyer pursuant to Section 1.3, including, but not limited to:
A. All real estate taxes on other real estate and properties carried as in substance foreclosures of Seller, all sales and use, social security and unemployment taxes withheld or collected from employees or customers and all accounts payable and operating expenses, whether or not accrued,
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for products or services incurred prior to the Effective Time including, but not limited to, salaries, attorneys fees and telephone, utility, advertising and public relations expenses, except that to the extent that an adjustment to the purchase price hereunder is made in respect of any such liability or obligation, Buyer shall assume all liability with respect thereto;
B. Liabilities or obligations with respect to any litigation, suits, claims, demands or governmental proceedings asserted by third parties against Seller and arising, commenced or resulting from the operations of the Branch prior to the Effective Time;
C. Sellers cashier checks, letters of credit, money orders, interest checks and expense checks issued prior to Closing, consignments of U.S. Government E and EE bonds and any and all travelers checks; and
D. Any liability, cost, expense, claim, demand or fee with regard to employees or employee benefits of Seller which relate to employment on or prior to the Effective Time, including, by way of example and not limitation: (x) all claims for benefits arising under or in connection with any employee savings, medical or other benefit plan, fund or program established or maintained by Seller prior to the Closing Date, (y) all claims for continued sickness, disability and workmens compensation benefits by employees or former employees (if any) of Seller who were receiving such benefits from Seller at the Effective Time, and (z) all claims of discrimination in employment to the extent that such discrimination is alleged to have occurred prior to the Effective Time.
1.5 Purchase Price and Payment.
At the Closing:
A. Seller shall transfer by wire transfer on or before the Effective Time to Buyer cash in the amount equal to the difference between (a) the amount of (i) the Deposits, plus (ii) Accrued Interest, plus (iii) Accrued Expenses (as provided in Section 1.8) plus (iv) Other Liabilities minus (b) the sum of (i) an amount equal to the principal balance plus accrued interest of the Loans as of the Effective Time plus (ii) an amount equal to the Cash on Hand, plus (iii) the amount of Prepaid Expenses as provided in Section 1.8 plus (iv) an amount equal to the net book value of the Personal Property and Real Property as of the Effective Time;
B. Buyer shall pay a premium (the Premium) to Seller in an amount equal to 2.25% of the principal amount of the Deposits acquired, as determined on the Closing Date.
C. Seller shall provide to Buyer within three (3) business days prior to the Closing Date a preliminary schedule of Closing settlement amounts substantially in the form attached hereto as Exhibit A showing in reasonable detail the calculation of the payments to be made at Closing, including any adjustments made in respect of the Preliminary Balance Sheet described in Section 1.8 below.
1.6 The Closing, the Closing Date and the Effective Time.
The sale and purchase of the Assets and the assumption of the Liabilities pursuant to this Agreement (the Closing) shall occur on a date mutually acceptable to Seller and Buyer as soon as practicable, but not later than 30 days, following the satisfaction or waiver of all conditions precedent set forth in ARTICLE 6 and ARTICLE 7. The Closing shall be held at the Branch, unless another place is mutually agreed upon by Buyer and Seller. The date of the Closing is referred to herein as the Closing
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Date. The effective time (the Effective Time) shall be 2:00 p.m., local time, on the Closing Date or such other time as the Buyer and Seller shall mutually agree. Buyer and Seller specifically agree that time is of the essence for all purposes with respect to this Agreement and the transactions contemplated hereby.
1.7 Preliminary Balance Sheet and Final Balance Sheet.
On the Closing Date, Seller shall present Buyer with a list of the balances of the Assets and the Liabilities as of a date five (5) business days prior to the Closing Date, certified by the Chief Executive Officer or Chief Financial Officer of Seller (acting in his or her official capacity, and not individually) to be true and correct as of the date reflected thereon (the Preliminary Balance Sheet), and the parties will calculate all amounts pursuant to Section 1.5 in accordance with the amounts reflected on the Preliminary Balance Sheet. Within thirty (30) days following the Closing Date, Seller shall present Buyer with a list of the balances of the Assets and the Liabilities as of the Effective Time, certified by the Chief Executive Officer or Chief Financial Officer of Seller (acting in his or her official capacity, and not individually) to be true and correct as of the date reflected thereon (the Final Balance Sheet). Additionally, Seller shall deliver to Buyer a list of Loans purchased, individually identified by account number, which list shall be appended to the Bill of Sale, and a list of the Deposits assumed, which list shall be appended to the Assignment and Assumption Agreement. Subject to rights of indemnification pursuant to ARTICLE 8, the Final Balance Sheet shall become final and binding on Buyer and Seller ten (10) business days after its delivery to Buyer, unless Buyer gives written notice to Seller of its disagreement with respect to any item included in such statement. Seller and Buyer shall use reasonable efforts to resolve the disagreement during the ten (10) business day period following receipt by Seller of the notice. If the disagreement is not resolved during such ten (10) business day period, the parties agree to follow the procedures set forth in Section 12.16 to resolve such dispute, and such Final Balance Sheet shall be modified by any such resolution, whereupon the Final Balance Sheet shall become final and binding. When the Final Balance Sheet becomes final and binding, an appropriate adjusting settlement payment from Seller to Buyer or from Buyer to Seller, as the case may be, will be made together with accrued interest calculated at the federal funds rate in effect on the Closing Date for the number of days elapsed between the Closing Date and the date of such adjusting settlement payment.
1.8 Adjustments.
All operating expenses and fees accrued or prepaid on or prior to the Effective Time, including, without limitation, wages, salaries, deposit insurance premiums, utility payments, telephone charges, property taxes, other ordinary operating expenses of the Branch and other expenses related to the Assets or Liabilities, shall be prorated between the parties as of the Effective Time. All amounts prepaid relating to Safe Deposit Contracts or agreements shall be prorated through the Effective Time, and all deposits paid thereon, if any, shall be paid to Buyer. Notwithstanding Sellers normal practices and procedures, to the extent that Seller has paid expenses that are expenses allocable to Buyer pursuant to this Section, such expenses shall appear as Prepaid Expenses on the Preliminary Balance Sheet, or, if not allocable as of the date the Preliminary Balance Sheet is calculated (the Preliminary Balance Sheet Date), on the Final Balance Sheet. Notwithstanding Sellers normal practices and procedures, to the extent that expenses have been incurred but not paid by Seller on or prior to the Effective Time, they shall appear as an Accrued Expense on the Preliminary Balance Sheet or, if not incurred by the Preliminary Balance Sheet Date, on the Final Balance Sheet.
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1.9 Deliveries by Seller at the Closing
At the Closing, Seller shall execute, acknowledge and deliver to Buyer in recordable form as appropriate, and with third party consents and releases of liens and security interests when required, certificates and other instruments of sale, conveyance, transfer and assignment relating to all of the Assets, and containing warranties consistent with the representations and warranties contained in this Agreement, including, without limitation, the following (all of such actions constituting conditions precedent to Buyers obligations to close hereunder):
A. A bill of sale covering the Personal Property in the form of Exhibit B hereto;
B. A special warranty deed covering the Real Property in the form of Exhibit C hereto.
C. Documents properly endorsed for transfer reflecting the assignment of all notes, guaranties, deeds of trust, security agreements, financing statements, and any other agreements and certificates of title to inure to the benefit of Buyer with respect to the Loans, and possession of any instruments (duly endorsed as necessary) securing the Loans;
D. All collateral security of any nature whatsoever held by Seller as collateral for any of the Assets;
E. All of the Records (other than the Optical Disk Records);
F. The Preliminary Balance Sheet;
G. The Cash on Hand and such of the other Assets that are capable of physical delivery;
H. A certificate duly executed by an authorized officer of Seller (acting in his or her official capacity, and not individually), dated as of the Closing Date, pursuant to which such officer shall certify that (a) the representations and warranties of Seller as set forth in this Agreement are true and correct in all material respects as of the Closing Date, and (b) Seller has complied with all covenants contained in Article 4 and its other agreements set forth herein;
I. A certificate duly executed by the Cashier or Secretary of Seller pursuant to which such officer shall certify (i) the due adoption by the Board of Directors of Seller of corporate resolutions attached to such certificate authorizing the transaction and the execution and delivery of this Agreement and the other agreements and documents contemplated hereby and the taking of all actions contemplated hereby and thereby; and (ii) the incumbency and true signatures of those officers of Seller duly authorized to act on its behalf in connection with the transaction contemplated by this Agreement and to execute and deliver this Agreement and other agreements and documents contemplated hereby and the taking of all actions contemplated hereby and thereby on behalf of Seller;
J. All documents, contracts, certificates, instruments, keys and records necessary or appropriate to transfer the safe deposit and safekeeping businesses, if any, of the Branch to Buyer;
K. Possession of the Assets and access to and keys to the Branch and all security devices located at the Branch, together with security codes for access to the Branch and combinations to all locking devices of Seller located at the Branch;
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L. A list, certified by an authorized officer of Seller (acting in his or her official capacity, and not individually), setting forth all garnishments, similar court orders, tax liens and orders of any governmental entity in effect with respect to the Deposits;
M. Payment to Buyer as is required pursuant to Section 1.5 in immediately available funds (such payment to be made at a time no later than 2:00 p.m., Dallas, Texas time, on the Closing Date);
N. A Power of Attorney in the form of Exhibit D hereto;
O. An assignment and assumption agreement in the form of Exhibit E hereto by which Seller assigns the Liabilities to Buyer; and
P. All personnel records and employee files with respect to Assumed Employees (as defined in Section 10.2) who accept the offer to become employees of Buyer.
1.10 Deliveries by Buyer at the Closing.
At the Closing, Buyer shall execute, acknowledge and deliver to Seller, in recordable form as appropriate, such documents and certificates necessary to carry out the terms and provisions of this Agreement, including, without limitation, the following (all of such actions constituting conditions precedent to Sellers obligations to close hereunder):
A. An assignment and assumption agreement in the form of Exhibit E hereto by which Buyer assumes the Liabilities;
B. A certificate duly executed by an authorized officer of Buyer (acting in his or her official capacity, and not individually), dated as of the Closing Date, pursuant to which such officer shall certify that (a) the representations and warranties of Buyer as set forth in this Agreement are true and correct in all material respects as of the Closing Date and (b) Buyer has complied with all covenants contained in ARTICLE 5 and its other agreements set forth herein;
C. A certificate duly executed by the Cashier or Assistant Cashier of Buyer pursuant to which such officer shall certify (i) the due adoption by the Board of Directors of Buyer of corporate resolutions attached to such certificate authorizing the execution and delivery of this Agreement and the other agreements and documents contemplated hereby and the taking of all actions contemplated hereby and thereby on behalf of Buyer, and (ii) the incumbency and true signatures of those officers of Buyer duly authorized to act on its behalf, in connection with the transaction and this Agreement and to execute and deliver this Agreement on behalf of Buyer; and
D. Payment to Seller of the Premium payable at Closing, in immediately available funds (such payment to be made at a time no later than 2:00 p.m., Dallas, Texas time, on the Closing Date).
1.11 Closing Costs and Recording.
Except as otherwise specified in this Agreement, Buyer shall be responsible for filing or recording any instruments or documents evidencing, or otherwise notifying persons who are not parties to this Agreement regarding, the consummation of the transactions contemplated by this Agreement.
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1.12 Further Assurances.
From time to time following the Closing, at the request of any party hereto and without further consideration, the other party hereto shall, at the reasonable expense of the requesting party (to the extent of any out of pocket costs incurred), execute and deliver to such requesting party such instruments and documents and take such other action (but without incurring any additional financial obligation) as such requesting party may reasonably request in order to consummate more fully and effectively the transactions contemplated hereby.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer as follows:
2.1 Organization and Standing.
Seller is a Texas state banking association, duly organized, validly existing, and in good standing under the laws of the State of Texas, and Seller has full power and authority (including all licenses, franchises, permits and other governmental authorizations as are legally required) to own, operate and lease its properties and to carry on the business and activities now conducted by it. Seller is an insured financial institution as defined in the Federal Deposit Insurance Act, and all of the Deposits are insured by the Federal Deposit Insurance Corporation (FDIC) to the full extent provided by law.
2.2 Execution and Delivery.
Seller has all requisite power to enter into this Agreement with Buyer, to carry out its obligations under this Agreement and to consummate the transactions contemplated hereby. Seller has taken all corporate and shareholder action, if any, necessary to authorize the execution, delivery and (provided the required regulatory approvals are obtained) performance of this Agreement and the other agreements and documents contemplated hereby to which it is a party. Seller has full power and authority to transfer the Assets and Liabilities to Buyer and such transfer will not, with or without the giving of notice or the passage of time, violate, constitute a breach of, conflict with or result in the creation of any lien, charge or encumbrance under the terms of any deposit agreement, signature card, certificate of deposit, passbook account or other document or agreement. This Agreement has been, and the other agreements and documents contemplated hereby have been or at Closing will be, duly executed by Seller, and each constitutes the legal, valid, and binding obligation of Seller, enforceable in accordance with their respective terms and conditions, except as enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws and judicial decisions affecting the rights of creditors generally and by general principles of equity (whether applied in a proceeding at law or in equity).
2.3 Compliance with Laws, Permits and Instruments.
The Branch has been operated in all respects in accordance with applicable laws, rules and regulations. The Assets and Liabilities, and the documents and instruments reflecting such Assets and Liabilities, comply in all respects with applicable laws, rules and regulations. The execution, delivery and (provided the required regulatory and shareholder approvals, if any, are obtained) performance of this Agreement and the consummation of the transactions contemplated hereby will not conflict with, or result, by itself or with the giving of notice or the passage of time, in any violation of or default under, any provision of the Articles or Bylaws of Seller or any material mortgage, indenture, lease, agreement or
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other instrument or any material permit, concession, grant, franchise, license, contract, authorization, judgment, order, decree, writ, injunction, statute, law, ordinance, rule or regulation applicable to Seller or its properties. The Seller has a rating of satisfactory or better under the Community Reinvestment Act of 1977, as amended. Seller has obtained and kept in force all governmental licenses and permits necessary to conduct its banking business at the Branch as now conducted by it and to own and operate the properties and assets utilized by it in such business. Each of such licenses and permits is in full force and effect and the Branch is in compliance with its obligations with respect thereto. No proceeding is pending or, to Sellers knowledge, threatened against Seller wherein the remedy sought is the revocation or limiting of any such governmental license or permit and Seller does not know of any basis or grounds for any such revocation or limitation. Seller has complied with all applicable laws relating to and materially affecting the conduct of its banking business at the Branch.
2.4 Litigation.
There are no actions, claims, suits, investigations or proceedings pending or threatened (or any basis therefore known by Seller) affecting the Assets or Liabilities at law or in equity, or by or before any governmental department, commission, board, bureau, agency or instrumentality, that involve any claim not fully covered by insurance. No legal action, suit or proceeding or judicial, administrative or governmental investigation is pending or threatened against Seller that questions or might question the validity of this Agreement or any actions taken or to be taken by Seller pursuant hereto or seeks to enjoin or otherwise restrain the transactions contemplated hereby.
2.5 Consents.
No approval, consent, authorization or action of, or filing with, any governmental body is required on the part of Seller in connection with (a) the execution, delivery or performance by Seller of this Agreement and the other agreements and documents contemplated hereby or (b) the consummation by Seller of the transactions contemplated hereby.
2.6 Title to and Condition of the Assets.
Seller has good and indefeasible title, free and clear of all security interests, mortgages, encumbrances, pledges, trust agreements, liens or other adverse claims to any of the Assets other than Permitted Liens. No person or entity other than Seller has any right, title or interest in and to any of the Assets other than any Permitted Lien. Upon payment by Buyer of the amounts contemplated by this Agreement, Buyer will acquire good and indefeasible title to the Assets, free and clear of any lien, charge, encumbrance, option or adverse claim other than Permitted Liens.
2.7 Financial Statements.
The unaudited balance sheet and income statement attached hereto as Exhibit F are a true and complete presentation of the assets, liabilities, revenues and expenses of the Branch as of December 31, 2011, and for the twelve months then ended and as of April 30, 2012 and for the four months then ended (collectively, the Financial Statements). Seller has no liabilities or obligations (whether accrued, absolute, contingent, unliquidated, or otherwise, whether or not known to Seller and whether due or to become due) relating to the properties, operations or business at the Branch, except (a) the Liabilities, (b) liabilities for trade payables incurred in the ordinary course of business (none of which is a material liability), and (c) other liabilities which do not and will not adversely affect the Assets and Liabilities.
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2.8 Real Property.
(a) Seller has delivered to Buyer an accurate and complete list, by deed reference and (if applicable) street address, of the Real Property, and a brief description of the principal facilities and structures (if any) located thereon. Except as set forth on Schedule 2.8, there are no persons (other than Seller) in possession of any portion of the Real Property as lessees, tenants at sufferance, or trespassers, nor does any person (other than Seller) have a lease, tenancy, or other right of occupancy or use of any portion of the Real Property. The Real Property has full and free access to and from public highways, streets, and roads, and Seller has no knowledge of any pending or threatened Proceeding or any other fact or condition which would limit or result in the termination of such access. There exists no proceeding or court order, or building code provision, deed restriction, or restrictive covenant (recorded or otherwise), or other private or public limitation, which might in any way impede or adversely affect the continued use of the Real Property by Buyer in the manner it is currently used.
(b) True and complete copies of all existing deeds and title insurance policies for all Real Property and all mortgages, deeds of trust, security agreements and other documents describing encumbrances to which such property is subject have been provided to Buyer.
(c) All building, improvements, and fixtures situated on the Real Property conform to all applicable laws, rules, regulations, ordinances, codes, orders, licenses and permits. All the Real Property is zoned for the various purposes for which such Real Property is being used, and there exists no pending or, to the knowledge of Seller, threatened Proceeding which might adversely affect the validity of such zoning.
(d) The Real Property is connected to and serviced by water, sewage disposal, gas, telephone, and electric facilities which are adequate for the current use of the Real Property and are in compliance with all applicable laws, rules, regulations, ordinances, codes, orders, licenses and permits. All public utilities required for the operation of the Real Property enter the Real Property through adjoining public streets or, if they pass through adjoining private land, do so in accordance with valid public easements, and all utility lines and mains located on the Real Property have been properly dedicated to, and are serviced and maintained by, the appropriate public or quasi-public entity.
(e) Neither the whole nor any part of the Real Property is subject to any pending Proceeding for condemnation or other taking by any Governmental Entity, and, to the knowledge of Seller, no condemnation or other taking is contemplated or threatened.
(f) There are no unpaid charges, debts, liabilities, claims, or obligations arising from the construction, occupancy, ownership, use, or operation of the Real Property, or the business operated thereon, which could give rise to any mechanics or materialmens or other statutory lien against the Real Property, or any part thereof, or for which Seller or Buyer will be responsible.
(g) The Real Property is not within any area determined by the Department of Housing and Urban Development to be flood prone under the Federal Flood Disaster Protection Act of 1973.
2.9 Environmental Matters.
Except as set forth in Schedule 2.9, neither the Seller with respect to its operations of the Branch nor any property owned or used by Seller with respect to the operation of the Branch nor, to the knowledge of Seller, any collateral for any of the Loans (for purposes of this Section, the Property) is in
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violation of, or subject to any pending or threatened Proceeding under, or subject to any remedial obligations under, any applicable laws, rules, regulations, ordinances, codes, orders, licenses and permits pertaining to health, safety, the environment, hazardous substances, or solid wastes (such applicable laws, rules, regulations, ordinances, codes, orders, licenses and permits as they now exist or are hereafter enacted and/or amended are collectively, for purposes of this Section, called Applicable Environmental Laws), including without limitation the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986 (as amended, for purposes of this Section, called CERCLA), the Resource Conservation and Recovery Act of 1976, as amended by the Used Oil Recycling Act of 1980, the Solid Waste Disposal Act Amendments of 1980, and the Hazardous and Solid Waste Amendments of 1984 (as amended, for purposes of this Section, called RCRA), the Texas Water Code, and the Texas Solid Waste Disposal Act. Except as set forth in Schedule 2.9, no asbestos, material containing asbestos that is or may become friable, or material containing asbestos deemed hazardous by applicable laws, rules, regulations, ordinances, codes, orders, licenses and permits, has been installed in any Property.
2.10 Leases.
There are no leases related to the use of the Real Property, or related to any personal property located or used at the Branch.
2.11 Contracts.
There are no agreements, contracts or commitments affecting the Assets to which Seller is a party and that require consent by any other person or entity in connection with the consummation of the transactions contemplated hereby either to prevent a breach or to continue the effectiveness thereof.
2.12 Absence of Certain Changes or Events.
Since the date of the Financial Statements, Seller has conducted its business at the Branch only in the ordinary course and has not, other than in the ordinary course of business and consistent with past practices and safe and sound banking practices:
A. Incurred any obligation or liability, absolute, accrued, contingent or otherwise, whether due or to become due;
B. Mortgaged, pledged or subjected to lien, charge, security interest or any other encumbrance or restriction any of the Assets;
C. Sold, transferred, leased to others or otherwise disposed of any of the Assets;
D. Terminated, canceled or surrendered, or received any notice of or threat of termination or cancellation of any contract, lease or other agreement or suffered any damage, destruction or loss (whether or not covered by insurance) which, in any case or in the aggregate, would result in a material adverse change with respect to the Branch;
E. Entered into any agreement or made any commitment to take any of the types of action described in subsections A through D above.
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2.13 No Adverse Change.
No material liabilities affecting the Branch have been incurred since the date of the Financial Statements other than those arising from normal transactions in the ordinary course of business. Since January 1, 2012, there has not been any material adverse change in, or any event or condition that might reasonably be expected to result in any material adverse change in, the business, assets, results of operations, condition (financial or otherwise), or prospects of the Branch.
2.14 Evidences of Indebtedness.
All evidences of indebtedness reflected as Assets of Seller associated with the Branch are legal, valid and binding obligations of the respective obligors thereof enforceable in accordance with their respective terms except as limited by applicable bankruptcy, insolvency, reorganization and similar laws affecting creditors generally and the availability of injunctive relief, specific performance, and other equitable remedies) and are not subject to any defenses, offsets or counterclaims that may be asserted against Seller or the present holder thereof. The books and records relating to the evidences of indebtedness included in the Assets accurately reflect the status of evidences of indebtedness including, without limitation, the payment history, balances, collateral, and, to the knowledge of Seller, the financial information on the obligors. The borrowers obligations with respect to each Loan are secured by a validly perfected security interest in the collateral specified in the Loan documents in favor of Seller as secured party, having the priority as described in the Loan documents. Seller has been charging interest and other amounts due under the Loan documents in accordance with the terms of such documents and in compliance with applicable law.
2.15 Books and Records.
The books and records of the Branch has been kept accurately in the ordinary course of business, the transactions entered therein represent bona fide transactions and the revenues, expenses, assets and liabilities of Seller have been properly recorded in such books and records.
2.16 Regulatory Compliance.
Except as disclosed in writing to Buyer, all reports, records and other documents or information involving any of the Assets or the Liabilities or the operation of the Branch that are required to be filed by Seller with any regulatory authority including, without limitation, the FDIC, Texas Department of Banking and the Internal Revenue Service have been duly and timely filed and all information and data contained in such reports, records or other documents is true, accurate and correct.
2.17 Brokerage Fees.
Except as disclosed on Schedule 2.17, Seller has not paid or agreed to pay any fee or commission to any agent, broker, finder or other person for or as a result of services rendered as a broker or finder in connection with this Agreement or the transactions covered and contemplated hereby.
2.18 Employee Matters.
Schedule 2.18 lists the names of all Branch Employees (as defined in Section 10.1) as of the date specified thereon and states for each such individual his or her position, dates of employment with Seller, years of service and present compensation.
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2.19 Employee Relations.
Seller has complied in all material respects with all applicable laws relating to its relationships with its Branch Employees (as defined in Section 10.1), and Seller believes that relationships between its Branch Employees and Seller is good.
2.20 Sufficiency and Condition of Properties.
Except as set forth on Schedule 2.20 hereof, the properties owned or used by Seller in connection with the Branch are in good operating condition and repair, ordinary wear and tear excepted. Such properties and their uses conform to all applicable laws, except for such minor variations as do not impair or interfere with the use of such properties for the purposes for which they are employed, and Seller has not received any notice to the contrary.
2.21 Taxes.
All taxes imposed by the United States of America or by any state, municipality, subdivision or instrumentality thereof or by any other taxing authority which are due or payable by Seller which, if not paid, could adversely affect the Assets or Liabilities have been paid in full. Any claims for refund or refunds of such taxes shall remain the property of Seller.
2.22 Misstatement.
Seller knows of no matter which has not been disclosed to Buyer pursuant to this Agreement which materially and adversely affects, or will materially and adversely affect, the business, assets, results of operation, condition (financial or otherwise), or prospects of the Branch or the ability of Seller to consummate the transactions contemplated hereby.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller as follows:
3.1 Organization and Standing.
Buyer is a national banking association duly organized, validly existing, and in good standing under the laws of the United States, and Buyer has full power and authority (including all licenses, franchises, permits and other governmental authorizations that are legally required) to own, operate and lease its properties and to carry on the business and activities now conducted by it.
3.2 Execution and Delivery.
Buyer has all requisite corporate power to enter into this Agreement and carry out its obligations under this Agreement and to consummate the transactions contemplated hereby. Buyer has taken all corporate action necessary to authorize the execution, delivery and (provided the required regulatory approvals are obtained) performance of this Agreement and the other agreements and documents contemplated hereby to which it is a party. This Agreement has been, and the other agreements and documents contemplated hereby have been or at Closing will be, duly executed by Buyer, and each constitutes the legal, valid and binding obligation of Buyer, enforceable in accordance with their
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respective terms and conditions, except as enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws and judicial decisions affecting the rights of creditors generally and by general principles of equity (whether applied in a proceeding at law or in equity).
3.3 Compliance with Laws, Permits and Instruments.
The execution, delivery and (provided the required regulatory approvals are obtained) performance of this Agreement and the consummation of the transactions contemplated hereby will not conflict with, or result, by itself or with the giving of notice or the passage of time, in any violation of or default under, any provision of the Articles or Bylaws of Buyer or any material mortgage, indenture, lease, agreement or other instrument or any permit, concession, grant, franchise, license, contract, authorization, judgment, order, decree, writ, injunction, statute, law, ordinance, rule or regulation applicable to Buyer or its properties. No consent, approval, order or authorization of, or registration, declaration or filing with, any governmental authority or other third party is required in connection with the execution and delivery of this Agreement by Buyer or the consummation by Buyer of the transactions contemplated hereby, except for filings required in order to obtain the required regulatory approvals, as described in Section 6.3.
3.4 Litigation.
No legal action, suit or proceeding or judicial, administrative or governmental investigation is pending or threatened against Buyer that questions or might question the validity of this Agreement or any actions taken or to be taken by Buyer pursuant hereto or seeks to enjoin or otherwise restrain the transactions contemplated hereby.
3.5 Consents.
Other than the approvals described in Section 6.3, no approval, consent, authorization or action of, filing with, any governmental body or other third party is required on the part of Buyer in connection with (a) the execution, delivery or performance by Buyer of this Agreement and the other agreements and documents contemplated hereby or (b) the consummation by Buyer of the transactions contemplated hereby.
3.6 Brokerage Fees.
Except as set forth on Schedule 3.6, Buyer has not paid or agreed to pay any fee or commission to any agent, broker, finder or other person for or as a result of services rendered as a broker or finder in connection with this Agreement or the transactions covered and contemplated hereby. All negotiations relating to this Agreement have been conducted by Buyer directly and without the intervention of any person in such manner as to give rise to any valid claim against Buyer for any other brokerage commission or like payment.
3.7 Regulatory Conditions.
The only regulatory application that Buyer is required to file and have approved to permit it to consummate the transactions contemplated hereby is the approval of the Office of the Comptroller of the Currency (OCC). Buyer has a CRA rating of satisfactory or better. Buyer is an eligible depository institution, as defined in 12 C.F.R. § 3.03.2(r). The Buyer is not aware of any facts that would delay or prevent the Buyer from obtaining regulatory approval with respect to the transactions contemplated hereby.
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3.8 Misstatement.
Buyer knows of no matter which has not been disclosed to Seller pursuant to this Agreement which materially or adversely affects, or will materially or adversely affect, the ability of Buyer to consummate the transactions contemplated hereby.
ARTICLE 4
COVENANTS OF SELLER
4.1 Reasonable Efforts.
Seller agrees to use commercially reasonable efforts to cause the consummation of the transactions contemplated hereby in accordance with the terms and conditions of this Agreement.
4.2 Information for Governmental Applications.
Seller shall promptly, but in no event later than five (5) days after receipt of a request by Buyer, furnish Buyer with all information concerning Seller required for inclusion in any application or statement required by law to be made by Buyer to or filed by Buyer with any governmental body in connection with the transactions contemplated by this Agreement, and Seller represents and warrants that all information so furnished for such statements and applications shall be true and correct in all material respects and shall not omit any material fact required to be stated therein or necessary to make the statements made, in light of the circumstances under which they were made, not misleading. Seller shall otherwise cooperate with Buyer in obtaining all governmental and regulatory consents, approvals, licenses, waivers and the like required to be fulfilled or obtained for the completion of the transactions contemplated by this Agreement.
4.3 Required Acts of Seller.
Prior to the Closing, Seller shall, with respect to the Branch, unless otherwise permitted in writing by Buyer:
A. Operate the Branch in the ordinary course of business;
B. Use all reasonable efforts to preserve its business organization intact and to retain its present customers, depositors, suppliers, officers and employees;
C. Act in a manner that will preserve or attempt to preserve its goodwill;
D. Perform all of its obligations under contracts, leases and documents relating to or affecting its assets, properties and business associated with the Branch, except such obligations as Seller may in good faith reasonably dispute;
E. Maintain all Personal Property in its current operating condition and repair, ordinary wear and tear excepted;
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F. Maintain in full force and effect all insurance policies now in effect or renewals thereof and give all notices and present all claims under all insurance policies in due and timely fashion;
G. Timely file all reports required to be filed with governmental authorities and observe and conform to all applicable laws, rules, regulations, ordinances, codes, orders, licenses and permits;
H. Timely file all tax returns required to be filed by it and promptly pay all taxes, assessments, governmental charges, duties, penalties, interest and fines that become due and payable;
I. Withhold from each payment made to each of its employees the amount of all taxes (including, but not limited to, federal income taxes, FICA taxes and state and local income and wage taxes) required to be withheld therefrom and pay the same to the proper tax receiving officers;
J. Continue to follow and implement policies, procedures and practices regarding the identification, monitoring, classification and treatment of all assets in substantially the same manner as it has in the past;
K. Cooperate with and assist Buyer in assuring the orderly transition of the business of the Branch to Buyer from Seller; and
L. Remove all signage from the Branch at the expense of Seller on or before the Closing Date, it being understood that Buyer shall be responsible for installation of its signage at its expense on or after the Closing Date.
4.4 Prohibited Acts of Seller.
Prior to the Closing, Seller shall not, without the prior written consent of Buyer:
A. Introduce any new material method of management or operation of the Branch;
C. Default with respect to any provision of any insurance policy now or hereafter in effect relating to the Branch;
D. Enter into any transaction affecting any Asset or Liability other than in the ordinary course of business;
E. Make, or incur any obligation to make, any capital expenditures or enter into any contracts to make such expenditures with respect to the Branch, in either case in an aggregate amount not to exceed $3,000, provided that Seller can make any emergency repairs required to restore the Branch to a safe operating condition;
F. Make any material modifications, including, but not limited to, any changes in collateral, repayment terms or (except upon renewals in accordance with the terms of any such Asset or Liability to reflect changes in market rates) interest rates, to any of the Assets or Liabilities;
G. Make, commit to make, renew, extend the maturity of or alter any of the material terms to a Loan to any single borrower and his or her related interests in the amount of (i) $50,000 or more for secured loans, (ii) $10,000 or more for unsecured loans, or (iii) $1,500 for overdrafts (but Buyer will be deemed to have given its consent under this Section 4.4(G) two business days (and one business day for overdrafts) after actual receipt by designated representatives of Buyer of all information that Seller possesses relating to the making, renewal or alteration of such Loan, unless Buyer sooner objects to such transaction);
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H. Pay a rate higher on Deposits at the Branch more than 25 basis points higher than the weekly rates published by the Seller;
I. Sell, transfer, mortgage, encumber or otherwise dispose of any of the Assets except for the disposition of Assets in the ordinary course of business;
J. Cause the transfer from the Branch to Sellers other operations of any deposits of the type included in the Liabilities, provided, however, that Seller may transfer deposits to Sellers other branch or offices upon the unsolicited request of the depositors;
K. Cause the Branch to generate any deposits associated with out-of-area relationships or brokered deposits; or
L. Increase the salary, remuneration, compensation or benefits of Assumed Employees.
4.5 Access; Pre-Closing Investigation.
Upon prior written notice of at least two (2) business days by Buyer, Seller shall afford the officers and authorized representatives of Buyer full access to the properties, books and records of Seller pertaining to the Assets and Liabilities and employees of the Branch in order that Buyer may have full opportunity to make such reasonable investigation as it shall desire to make of the Assets and Liabilities, including, without limitation, access sufficient to verify the value of the Assets and the Liabilities and the satisfaction of the conditions precedent to Buyers obligations described in Article 6. Seller agrees at any time, and from time to time, to furnish to Buyer as soon as practicable, any additional information pertaining to the Assets and Liabilities that Buyer may reasonably request. In addition, Seller shall provide Buyer reasonable access to the Branch for a mutually agreeable period of time preceding the Closing Date for the purpose of installing equipment. Buyer agrees to conduct its investigations hereunder during normal business hours of the Branch and in a manner which does not unreasonably interfere with the normal operations of the Branch and Buyer further agrees to cause the installation of such equipment to be effected in a manner intended to minimize disruption to the operation of the Branch.
4.6 Additional Financial Statements.
Within five business (5) days of each such month-end between the date of this Agreement and the Closing Date, Seller shall furnish Buyer with a balance sheet and income statement with respect to the Branch as of each month-end substantially in the format of Exhibit F.
4.7 Notice of Adverse Changes, Litigation and Claims.
Seller shall promptly notify Buyer in writing if Seller becomes aware of (i) any fact or condition that makes untrue, or shows to have been untrue, in any material respect, any schedule or any other information furnished to Buyer or any representation or warranty made in or pursuant to this Agreement or that results in Sellers failure to comply with any covenant, condition or agreement contained in this Agreement, or (ii) any litigation against Seller if such litigation might prevent consummation of the transactions contemplated by this Agreement.
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4.8 No Disclosure or Negotiation with Others.
Seller shall prevent the disclosure of any of the terms or conditions hereof to any other person except for disclosure required by appropriate regulatory authorities, and as long as this Agreement shall remain effective, Seller shall not, directly or indirectly, nor shall it permit any of its officers, directors, employees, representatives or agents to, directly or indirectly, encourage, solicit or initiate discussions or negotiations with, or discuss or negotiate with, or provide any information to, any corporation, partnership, person or other entity or group (other than Buyer or an affiliate or an associate of Buyer or an officer, partner, employee or other authorized representative of Buyer or such affiliate or associate) concerning any sale of or similar transaction involving the Assets or the Liabilities.
4.9 Notices to Customers.
At least thirty (30) days prior to the Closing Date, Seller agrees to mail or cause to be mailed, to each of the Depositors, each holder of a safe deposit box domiciled at the Branch and to such other customers as may be required by applicable law, such notice of contemplated transfer of the Assets, the Liabilities or the operations of the Branch as may be required of Seller as a condition of approval by any regulatory authority, or as otherwise may be required by applicable law. Each such notice shall be in a form acceptable to each party hereto, such approval not to be unreasonably withheld.
4.10 Sale of Participations.
As of the Closing Date, Seller shall have presented to Buyer, and Buyer shall have accepted, the opportunity to purchase a $1 million participation interest in each of three separate performing, nonclassified loans previously made and held by Seller (the Participation Loans). Prior to the Closing Date, Seller shall provide to Buyer information regarding the Participation Loans, including credit information, collateral information, loan files and other information that Buyer may reasonable request with respect to such Participation Loans. Buyer shall make its own decision with regard to whether to purchase participations in the Participation Loans. Immediately following the Effective Time, Seller shall sell to Buyer a participation interest in each of the three Participation Loans such that the average outstanding principal balance of such Participation Loans (considering scheduled principal payments) for the twelve months following the Effective Time shall be $3 million. On or after the first anniversary of the Effective Time, Seller shall have the right to repurchase up to a maximum of $1 million of the participations held by Buyer, provided that, after such repurchase, Buyer shall retain a participation interest in the Participation Loans such that the average outstanding principal balance of such Participation Loans (considering scheduled principal payments) for the second twelve months following the Effective Time shall be $2 million. On or after the second anniversary of the Effective Time, Seller shall have the right to repurchase up to another $1 million of the participations held by Buyer, provided that, after such repurchase, Buyer shall retain a participation interest in the Participation Loans such that the average outstanding principal balance of such Participation Loans (considering scheduled principal payments) for the third twelve months following the Effective Time shall be $1 million. On or after the third anniversary of the Effective Time, Seller shall have the right to repurchase any and all remaining participation interests held by Buyer in the Participation Loans. The terms and conditions of all such participations shall be set forth in participation agreements, the form of which is attached hereto as Exhibit G. After the Effective Time, if a Participation Loan is paid off in full or if the borrower makes an unscheduled payment of the outstanding principal balance of a Participation Loan, Seller shall sell to Buyer a participation interest in another loan selected by Seller, and acceptable to Buyer, in an amount such that Buyer will have the opportunity to maintain at least $3 million in participations during the first year following the Effective Time, at least $2 million in participations during the second year following the Effective Time, and at least $1 million in participations during the third year following the Effective Time.
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ARTICLE 5
COVENANTS OF BUYER
5.1 Reasonable Efforts.
Buyer agrees to use commercially reasonable efforts to cause the consummation of the transactions contemplated hereby in accordance with the terms and conditions of this Agreement.
5.2 Regulatory Approvals.
Buyer shall promptly, but in no event later than twenty (20) days after the date of this Agreement, file or cause to be filed applications for all regulatory approvals required to be obtained by Buyer in connection with the transactions contemplated hereby. Buyer shall use its commercially reasonable efforts to obtain such regulatory approvals at the earliest practicable time. Buyer will provide Seller with copies of all non-confidential portions of any application, statements or correspondence submitted to or received from any regulatory authorities in connection with the transactions contemplated by this Agreement.
5.3 Notice of Adverse Changes, Litigation and Claims.
Buyer shall promptly notify Seller in writing if Buyer becomes aware of (i) any fact or condition that makes untrue, or shows to have been untrue, in any material respect, any schedule or any other information furnished to Buyer or any representation or warranty made in or pursuant to this Agreement or that results in Buyers failure to comply with any covenant, condition or agreement contained in this Agreement, or (ii) any litigation against Buyer if such litigation might prevent consummation of the transactions contemplated by this Agreement.
5.4 Change of Name, Notice to Customers.
A. Prior to the Closing Date, Buyer agrees to mail or cause to be mailed, to each of the Depositors, each holder of a safe deposit box domiciled at the Branch and to such other customers as may be required by applicable law, such notice of contemplated transfer of the Assets, the Liabilities or the operations of the Branch as may be required as a condition of approval by any regulatory authority, or as otherwise may be required by applicable law. Each such notice shall be in a form approved by each party hereto, such approval not to be unreasonably withheld; and
B. After the Closing Date, Buyer shall, (i) as soon as practicable change the name on all documents and facilities relating to the Branch from Sellers name to Buyers name; and (ii) starting promptly after the Closing Date, mail written notice by first class mail to all customers of the Branch as of the Closing Date, all Depositors and all borrowers with respect to the Loans, of the consummation of the transactions contemplated by this Agreement, the form and substance of such notice being mutually satisfactory to Buyer and Seller.
5.5 Use of Name.
It is understood that Seller is not transferring to Buyer any right, title or interest in or to, or any right of license to use, Sellers name in connection with the Branch or otherwise. Accordingly, Buyer shall not
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use, keep or claim any registered or unregistered trademark, service mark or other identification commonly associated with Seller, or any sign, display or similar material of Seller or any banking or other forms, stationery, passbooks, checks, travelers checks, cashiers checks, managers checks or similar banking material of Seller or bearing Sellers name or other similar marks or identification (except to the extent necessary to conduct business operations and with Sellers prior consent following Closing, and then only if Sellers name, marks or identification are obliterated from such material, and such material is clearly identified as that of Buyer), or any proprietary material of Seller including, without limitation, operating manuals, training manuals and public relations, explanatory or advertising materials. No agency relationship exists between the parties hereto. At no time, whether before or after Closing Date, shall Buyer transact any business in the name of Seller or in any way hold itself out as the actual or apparent agent of Seller.
5.6 Solicitation of Employees of the Branch.
Except as contemplated by ARTICLE 10, from and after the execution and delivery of this Agreement and until the Closing Date, Buyer will not solicit or initiate communications with any Branch Employee (as defined in Section 10.1)for the purpose of inducing such person to become an employee of Buyer.
ARTICLE 6
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF BUYER
All obligations of Buyer under this Agreement are subject to the fulfillment, prior to or at the Closing, of each of the following conditions, any or all of which may be waived in whole or in part in writing by Buyer:
6.1 Compliance with Representations, Warranties and Agreements.
The representations and warranties made by Seller in this Agreement or in any schedule delivered to Buyer pursuant hereto shall have been true and correct in all material respects when made and shall be true and correct in all material respects as of the Effective Time with the same force and effect as if such representations and warranties were made at and as of the Effective Time, except with respect to those representations and warranties specifically made as of an earlier date (in which case such representations and warranties shall be true and correct in all material respects as of such earlier date). Seller shall have performed or complied in all material respects with all material agreements, terms, covenants and conditions required by this Agreement to be performed or complied with by Seller prior to or at the Effective Time except as specifically provided to the contrary in this Agreement.
6.2 Necessary Corporate Actions.
Seller shall have taken any and all requisite corporate actions and other steps and secured any other corporate approvals, including any requisite shareholders approval, necessary to authorize and consummate this Agreement and the transactions contemplated hereby.
6.3 Governmental Approvals.
Buyer shall have received approvals, acquiescences or consents, all on terms and conditions acceptable to Buyer, from all necessary governmental agencies and authorities to the transactions contemplated by this Agreement, including, but not limited to, the approval of the OCC for Buyer to
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acquire the Assets and assume the Liabilities and to establish a branch of Buyer at each of the locations of the Branch; provided, however, that no governmental or regulatory consent, approval or authorization shall have imposed any condition or requirement that would result in a material adverse effect on the consummation of the transactions contemplated hereby or on the operation of the Branch after the Effective Time. Such approvals and the transactions contemplated hereby shall not have been contested or threatened to be contested by any federal or state governmental authority or by any other third party by formal proceedings.
6.4 No Litigation.
No action shall have been taken, and no statute, rule, regulation or order shall have been promulgated, enacted, entered, enforced or deemed applicable to the acquisition by any federal, state or foreign government or governmental authority or by any court, domestic or foreign, including the entry of a preliminary or permanent injunction, that would (a) make this Agreement or the transactions contemplated hereby illegal, invalid or unenforceable (b) require the divestiture of a material portion of the Assets or the Liabilities once acquired by Buyer, (c) impose material limits in the ability of Buyer to consummate this Agreement, or the transactions contemplated hereby, or (d) if this Agreement, or the transactions contemplated hereby, is consummated, subject Buyer or any officer, director or employee of Buyer to criminal penalties or to civil liabilities. No action or proceeding before any court or governmental authority, domestic or foreign, by any government or governmental authority or by any other person, domestic or foreign, shall be threatened, instituted or pending that would reasonably be expected to result in any of the consequences referred to in clauses (a) through (d) above.
6.5 Consents of Third Parties.
Buyer and Seller shall have obtained all consents of third parties in form and substance reasonably satisfactory to the Buyer, necessary to consummate the transactions contemplated by this Agreement.
6.6 Documentation.
The form and substance of all instruments of assumption and other documents delivered pursuant to this Agreement by Seller shall be reasonably satisfactory in all respects to Buyer.
6.7 Deposits.
The Deposits shall be at least $19.5 million as of the Closing Date.
6.8 Title Insurance; Survey.
Buyer shall have received for the Real Property a commitment to issue title insurance to Buyer from a title insurance company acceptable to Buyer, in an amount equal to net book value of the Real Property insuring that Buyer has good, indefeasible and unencumbered fee simple title thereto, subject to the customary conditions, stipulations and exceptions contained in the Texas standard owner policy of insurance issued on the form prescribed by the Texas State Board of Insurance. The cost of such title policy shall be paid by Seller. Buyer shall have received, at least ten (10) days prior to the Closing, surveys of the Real Property reflecting the actual lines and dimensions of the Real Property and the actual size, location and type of buildings and improvements thereon (all improvements being within the boundaries of the Real Property and set back from the property lines the distance indicated on said surveys) and reflecting that there are no encroachments, conflicts or protrusions on the Real Property. The cost of such survey shall be paid by Seller.
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6.9 Environmental.
Buyer shall have obtained, at Buyers option, such environmental studies with respect to the Real Property which reflects no environment problem or potential problem the remediation of which, net of any reimbursement that is certain to be received from any state or federal regulatory agency, is estimated to cost $5,000 or more; provided that this condition shall be deemed waived by Buyer if Buyer has not obtained such environmental studies within forty five (45) days of the date of this Agreement. The expense of such environmental report shall be paid equally by Buyer and Seller; provided that the maximum amount Seller shall be obligated to pay shall be $5,000.
6.10 Participations.
Buyer shall have purchased the Participation Interests contemplated by Section 4.10.
ARTICLE 7
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF SELLER
All obligations of Seller under this Agreement are subject to the fulfillment, prior to or at the Closing, of each of the following conditions, any or all of which may be waived in whole or in part by Seller.
7.1 Compliance with Representations, Warranties and Agreements.
The representations and warranties made by Buyer in this Agreement or in any schedule delivered to Buyer pursuant hereto shall have been true and correct in all material respects when made and shall be true and correct in all material respects as of the Effective Time with the same force and effect as if such representations and warranties were made at and as of the Effective Time, except with respect to those representations and warranties specifically made as of an earlier date (in which case such representations and warranties shall be true and correct in all material respects as of such earlier date) Buyer shall have performed or complied in all material respects with all material agreements, terms, covenants and conditions required by this Agreement to be performed or complied with by Buyer prior to or at the Effective Time except as specifically provided to the contrary in this Agreement.
7.2 Necessary Corporate Actions.
Buyer shall have taken any and all requisite corporate actions and other steps and secured any other corporate approvals, necessary to authorize and consummate this Agreement and the transactions contemplated hereby.
7.3 Governmental and Other Approvals.
Buyer shall have received approvals, acquiescences or consents to the transactions contemplated by this Agreement from all necessary governmental agencies and authorities for the transactions contemplated hereby, and Seller and Buyer shall have received satisfactory evidence that such approvals have been obtained and that any necessary waiting periods have passed. In addition, Buyer shall not have received any objection to the transactions contemplated by this Agreement from any governmental agency or authority.
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7.4 No Litigation.
No action shall have been taken, and no statute, rule, regulation or order shall have been promulgated, enacted, entered, enforced or deemed applicable to the acquisition by any federal, state or foreign government or governmental authority or by any court, domestic or foreign, including the entry of a preliminary or permanent injunction, that would (a) make this Agreement or the transactions contemplated hereby illegal, invalid or unenforceable or (b) if this Agreement, or the transactions contemplated hereby, is consummated, subject any officer, director or employee of Seller to criminal or civil liability. No action or proceeding before any court or governmental authority, domestic or foreign, by any government or governmental authority or by any other person, domestic or foreign, shall be threatened, instituted or pending that would reasonably be expected to result in any of the consequences referred to in clauses (a) or (b) above.
7.5 Documentation.
The form and substance of all instruments of assumption and other documents delivered pursuant to this Agreement by Buyer shall be reasonably satisfactory in all respects to Seller.
ARTICLE 8
SURVIVAL OF REPRESENTATIONS, WARRANTIES, AGREEMENT AND OBLIGATIONS;
INDEMNIFICATION
8.1 Survival.
The representations and warranties of Seller and Buyer contained in this Agreement shall survive the Effective Time for 8 months, except for those representations and warranties set forth in Section 2.2 (Execution and Delivery), Section 2.6 (Title to Assets), Section 2.21 (Taxes) and Section 2.9 (Environmental) which shall survive for the period of the applicable statute of limitations.
8.2 Indemnification by Seller.
Seller agrees to pay, and to indemnify, save, defend and hold harmless Buyer and each of its officers, directors, shareholders and representatives (collectively, Insiders), from and against, and shall reimburse Buyer and its Insiders with respect to, any and all damages, liabilities, losses, obligations, actions, suits, disbursements, claims, deficiencies, penalties, interest, expenses, fines, assessments, charges and costs (including, without limitation, reasonable attorneys and expert witness fees, costs of investigation and court costs) of every kind (collectively, Losses), imposed on, incurred by or asserted against Buyer or its Insiders (or any of them) in any way relating to or arising from or out of:
A. A breach, deficiency, inaccuracy or inadequacy of or in any statement, representation or warranty of Seller contained in this Agreement, or any schedule, certificate or other document delivered pursuant hereto or as part of the transactions contemplated hereby;
B. Ownership or operation of the Branch or its business and properties prior to the Effective Time;
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C. Liabilities of Seller that are not expressly assumed by Buyer;
D. A breach of any covenant of Seller or the failure of Seller to perform any agreement, covenant or obligation of Seller contained in this Agreement or in any other agreement or document executed pursuant to this Agreement;
E. Any taxes, including interest and penalties, required to be paid by Seller or its successor, which relate to Sellers business or assets at or prior to the Effective Time;
F. The termination of employment by Seller prior to the Effective Time of any individual who is an officer or employee of Seller; and
G. All refunds or repayments made by Seller following the Effective Time of credit life or single interest insurance premiums on policies that were issued in connection with loans made by Seller prior to the Effective Time and purchased by Buyer.
Any claim for indemnification shall be applicable to each representation independently, irrespective of whether such claim is consistent with any other representation contained in this Agreement.
8.3 Indemnification by Buyer.
Buyer hereby agrees to pay, and to indemnify, save and hold harmless Seller and each of its Insiders from and against, and shall reimburse Seller and its Insiders with respect to, any and all Losses imposed on, incurred by or asserted against Seller or its Insiders (or any of them) in any way relating to or arising from or out of:
A. A breach, deficiency, inaccuracy or inadequacy of or in any statement, representation or warranty of Buyer contained in this Agreement, or any schedule, certificate or other document delivered pursuant hereto or as part of the transactions contemplated hereby;
B. Ownership or operation of the Branch or its business and properties after the Effective Time;
C. Liabilities of Seller that are expressly assumed by Buyer; and
D. A breach of any covenant of Buyer or the failure of Buyer to perform any agreement, covenant or obligation of Buyer contained in this Agreement or in any other agreement or document executed pursuant to this Agreement,
Any claim for indemnification shall be applicable to each representation independently, irrespective of whether such claim is consistent with any other representation contained in this Agreement.
8.4 Procedure for Indemnification.
Promptly after receipt by an indemnified party under Section 8.2 or 8.3 of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against an indemnifying party under Section 8.2 or 8.3, give written notice to the indemnifying party of the commencement thereof, but the failure so to notify the indemnifying party shall not relieve it of any
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liability that it may have to any indemnified party except to the extent the indemnifying party demonstrates that the defense of such action is prejudiced thereby. In case any such action shall be brought against an indemnified party and it shall give written notice to the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it may wish, to assume the defense thereof with counsel reasonably satisfactory to such indemnified party. If the indemnifying party elects to assume the defense of such action, the indemnified party shall have the right to employ separate counsel at its own expense and to participate in the defense thereof. If the indemnifying party elects not to assume (or fails to assume) the defense of such action, the indemnified party shall be entitled to assume the defense of such action with counsel of its own choice, at the expense of the indemnifying party. If the action is asserted against both the indemnifying party and the indemnified party and there is a conflict of interest which renders it inappropriate for the same counsel to represent both the indemnifying party and the indemnified party, the indemnifying party shall be responsible for paying for separate counsel for the indemnified party; provided, however, that if there is more than one indemnified party, the indemnifying party shall not be responsible for paying for more than one separate firm of attorneys to represent the indemnified parties, regardless of the number of indemnified parties. If the indemnifying party elects to assume the defense of such action, (a) no compromise or settlement thereof may be effected by the indemnifying party without the indemnified partys written consent (which shall not be unreasonably withheld) unless the sole relief provided is monetary damages that are paid in full by the indemnifying party and (b) the indemnified party shall have no liability with respect to any compromise or settlement thereof effected without its written consent (which shall not be unreasonably withheld). The indemnifying party shall pay (i) claims hereunder for legal fees and other costs as they are incurred, and (ii) claims hereunder for damages when the claim against the indemnified party has been established by a final judgment in litigation or by settlement consented to in writing by the indemnifying party. If the indemnifying party does not elect to assume the defense of such action, no compromise or settlement thereof may be effected by the indemnified party without the indemnifying partys written consent (which shall not be unreasonably withheld).
ARTICLE 9
OPERATIONAL AGREEMENTS
9.1 Replacement of Customer Check Stock and ATM and Debit Cards.
On or before five business days prior to the Closing Date Buyer and Seller shall jointly send a letter requesting that each Depositor whose account may be accessed by checks cease writing checks on Sellers check stock against such account after the Effective Time. At such time as Buyer and Seller mail each such notice to each Depositor, Buyer shall also forward to each Depositor new checks on Buyers check stock, which checks the Depositor may draw upon Buyer for the purpose of effecting transactions with respect to such Deposits. The parties will use reasonable efforts to develop procedures (i) that will cause checks drawn on Sellers form of check stock against Deposits that are received after the Effective Time to be cleared through Buyers then current clearing procedures and (ii) to provide for the delivery of new ATM and debit cards by Buyer and the orderly processing of ATM and debit card transactions.
9.2 Payment of Checks, Drafts, and Orders.
After the Effective Time, Buyer agrees (i) to pay in accordance with applicable law, the Deposit Agreements and customary banking practice all checks, drafts and withdrawal orders properly drawn by Depositors and properly presented to Buyer, whether drawn on the checks, withdrawal or draft forms provided by Seller or by Buyer, to the extent that the Deposit balances to the credit of the respective makers or drawers assumed by the Buyer under this Agreement are sufficient to permit the payment
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Branch Purchase and Assumption Agreement
thereof (after taking into account any overdraft protection rights of the Depositors), and (ii) in all other respects to discharge, in accordance with applicable law, the Depository Agreements and customary banking practice in the usual course of its banking business, all duties and obligations of Seller with respect to the balances due and owing to the Depositors. If any of the Depositors shall demand payment from Seller for all or any part of any Deposit, Seller shall not be liable or responsible for making such payment. As of the Closing Date, Buyer shall become the holder, as that term is defined in the Texas Property Code (Tex. Prop. Code Ann. Section 73.001), of all the Deposits and safe deposit boxes that Buyer assumes under this Agreement. Buyer will be responsible for the escheat of any property for which it becomes the holder and that becomes abandoned during the calendar year in which the Closing occurs.
9.3 Clearing Items.
During the 120-day period following the Closing Date, if it is not possible to clear checks and other items drawn on a Deposit account through Buyers then current clearing procedures, Seller will make provisional settlement to the presenting institution and will forward such checks and other items on such Deposit to Buyer, no later than the next business day after receipt thereof, and Buyer will reimburse Seller for such provisional settlement. Upon the expiration of such 120-day period, Seller shall cease forwarding checks and other debits against the Deposit accounts and return them to the originators marked Account Closed. Upon timely presentation to Buyer, Buyer will assume all responsibility for such items (except for such items that have not been handled by Seller in accordance with applicable law or regulation, or with ordinary care), including but not limited to determining whether to honor or dishonor such items and giving any required notification for the return of items.
9.4 Returned Items.
Buyer agrees, no later than the start of the second business day after demand by Seller, to pay to Seller an amount equivalent to the amount of any uncollected item included in a Depositors balance on the Closing Date that is returned within 60 days after Closing as not collected. Buyer shall be required to make such payment for an item only up to the balance of any funds on deposit with Buyer and any balance available to the customer under any overdraft plan the Depositor has with Buyer at the time Seller makes the demand as aforesaid; provided, however, if prior to the Closing Seller had placed a hold or other similar protective measure on the Depositors account with respect to such item and subsequent to Closing Buyer removes such hold or protective measure other than as required under applicable law or regulation, then Buyer will be obligated to pay to Seller in full on account of such uncollected item. So long as any hold or other protective measure placed on the depositors account with respect to such item complies with applicable law, the placing of any such hold or other protective measure shall not be deemed a breach of this Agreement.
9.5 Data Processing and Utilities.
Following the execution of this Agreement, Seller shall (i) provide reasonable cooperation to Buyer in converting the current data processing activities of the Branch to Buyers data processing system, and (ii) assist Buyer in the transfer of all utilities relating to the Branch, including the existing phone numbers for the Branch, into the name of Buyer at Buyers expense. Buyer shall pay one half of the costs and expenses of Seller necessary to accomplish the data processing conversion, but not to exceed $5,000, and, except as set forth herein, Buyer shall bear the duties and responsibilities relating to such conversion. As soon as practicable at the request of Buyer, Seller shall deliver to Buyer a list of the Deposits (customer names, addresses and tax identification numbers, balances at Closing and maturities of all certificates of deposits), grouped by deposit type, and original or duplicate copies (including
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electronic copy, magnetic tape, disc storage, card forms and printed copy) of all customer information files and customer records, ACH items, application files, machine operating and application software, full documentation of all application and processing routines, and any other documentation in the possession of Seller and necessary to the orderly operation and conversion to Buyers system of the Branchs data processing operations.
9.6 Compliance with Garnishments and Similar Orders.
After the Effective Time, Buyer will comply in all material respects with any and all garnishments, similar court orders, tax liens and order of any governmental entity in effect with respect to the Deposits, and Buyer will not pay any Deposits in violation of such garnishments, orders or tax liens or otherwise take any actions not permitted pursuant thereto or pursuant to applicable law.
9.7 Direct Deposit Arrangements.
Seller will use reasonable efforts to transfer to Buyer on the Closing Date all of those automated clearing house and Fed wire direct deposit arrangements that are tied by agreement or other standing arrangement to the Deposits. For a period of 120 days, (the Direct Deposit Cut-off Date), Seller will, no later than the next business day following the date of receipt thereof, remit and transfer by electronic transmission to Buyer all direct deposits intended for the Deposits. After the Direct Deposit Cut-off Date, Seller may discontinue accepting and forwarding automated-clearing-house and Fed-wire entries and funds and return such direct deposits to the originators marked Account Closed.
9.8 Direct Debit Arrangements.
With respect to all Deposits that have arrangements providing for direct debit of such accounts by third parties (Direct Debit Accounts), for a period of 120 days after the Closing Date, Seller will forward to Buyer all direct debits on Direct Debit Accounts on the business day following the date of receipt thereof, and will give Buyer a daily accounting of such debits to Buyers clearing account. Thereafter, Seller may discontinue forwarding such entries and return them to the originators marked Account Closed.
9.9 IRA Deposits.
With respect to Deposits that are individual retirement accounts created by a trust for the exclusive benefit of an individual or his or her beneficiaries in accordance with the provisions of section 408, section 530 and section 408A of the Code (IRA Deposits), Seller will take appropriate action to appoint Buyer as successor custodian of all such IRA Deposits, including, but not limited to, sending to the Depositors thereof appropriate notices, and filing any appropriate applications with applicable regulatory authorities. At the Effective Time, Buyer will accept appointment as custodian with respect to such IRA Deposits and will perform all of the duties so transferred and comply with the terms of Sellers agreement with the Depositor of the IRA Deposits affected thereby.
9.10 Keogh Accounts.
With respect to Deposits that are Keogh Accounts created by a trust for the benefit of employees and that comply with the provisions of section 401 of the Code (Keogh Accounts), Seller will use reasonable efforts and cooperate with Buyer to invite depositors thereof to direct a transfer of each such depositors Keogh Account and the related Deposit to Buyer, as custodian thereof, and to adopt Buyers
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form of Keogh master plan as a successor to Sellers Keogh master plan. Buyer will assume no Deposits that are Keogh Accounts unless Buyer has received the documents necessary for such assumption or transfer at or before the Closing. With respect to any Depositors who do not transfer such Keogh Accounts to Buyers form of Keogh master plan, Seller will use reasonable efforts in order to enable Buyer to retain such Keogh Accounts at the Branch.
9.11 Final Statements.
Seller will render a final statement to each Depositor of an account assumed under this Agreement as to transactions occurring through the Effective Time and will comply with all laws, rules and regulations regarding tax reporting of transactions of such accounts through the Effective Time. Seller will be entitled to impose normal fees and service charges on a per-item basis, but Seller will not impose periodic fees or blanket charges in connection with such final statements unless such final statement is made as of a date that would ordinarily carry such periodic fees or blanket charges.
9.12 IRA Deposits and Keogh Accounts.
Seller will deliver to Buyer on the Closing Date all of the documents in Sellers possession governing each IRA Deposit and Keogh Account that is included in the Deposits. Seller will prepare and file all reports to government authorities required to be filed for the period ending on the Closing Date and all prior periods. Buyer will be responsible for all such reporting for periods commencing on the day after the Closing.
9.13 Interest Reporting and Withholding.
All tax information reporting and filing requirements and all tax withholding requirements with respect to the Assets and the Liabilities for calendar year 2012 and thereafter are the responsibility of Buyer, provided that Seller has provided to Buyer in connection with the data processing conversion all information necessary for Buyer to report and file such information.
9.14 Loans.
In connection with the transfer of the Loans, Seller and Buyer agree as follows:
A. The parties will cooperate and use commercially reasonable efforts to cause Buyer to become the beneficiary of credit life, accident and health, vendors single interest premium or similar insurance purchased by or on behalf of such customer on the Loans. For the duration of such insurance, Seller and Buyer agree to cooperate in good faith to develop a mutually satisfactory method by which the issuer of such insurance will make rebate payments to and satisfy claims of the holders of such certificates of insurance after the Effective Time;
B. Each of Buyer and Seller will use commercially reasonable efforts to comply with all notice and reporting requirements of the loan documents or of any law or regulation with respect to the transfer of such loans;
C. Within thirty (30) days after the Closing Date, Buyer will, at its expense, issue new coupon books or similar payment notices for payment of the Loans with instructions to use Buyers coupons or statements and to destroy unused coupons furnished by Seller;
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D. For a period of 90 days after the Closing Date, within three (3) business days after receipt by Seller of any check or money order made payable to Seller representing payment on a Loan, Seller shall issue and forward a cashiers check made payable to Buyer or wire transfer to the benefit of Buyer in the amount of such item, and forward the item for collection. If the item is returned unpaid, however, Seller shall promptly notify Buyer of such items return and shall forward the original of such item to Buyer. Within three (3) business days after receipt of such returned item, Buyer shall issue and forward a cashiers check or wire transfer to Seller in the amount of such item, and Buyer shall be responsible for any further efforts to collect such item; and
E. If the balance due on any Loan has been reduced by Seller as a result of a payment by check received prior to the Closing Date, which item is returned after the Closing Date, the asset value representing the Loan transferred shall be correspondingly increased and an amount in cash equal to such increase shall be paid by Buyer to Seller promptly upon demand.
9.15 Other Items.
Following the Effective Time, Seller agrees to deliver immediately, but in no event later than two (2) business days after receipt by Seller, to Buyer (i) any collected funds accepted by Seller for credit to any account included in the Deposits, (ii) any refunds or reimbursements of prepaid expenses included in the acquired Assets for which an adjustment to the purchase price was made pursuant to Section 1.8 and which are accepted by Seller, and (iii) any written notices or correspondence received by Seller relating to the Deposits or the Loans. Buyer shall pay to Seller immediately, but in no event later than two (2) business days after receipt by Buyer, any refunds or reimbursements of accrued expenses for which an adjustment to the purchase price was made pursuant to Section 1.8 and which are accepted by Buyer. Notwithstanding the foregoing provisions of this ARTICLE 9, each of Seller and Buyer shall as soon as practicable following the Closing establish demand deposit accounts in favor of the other, and shall credit such accounts with any amounts payable to the other pursuant to this ARTICLE 9. The party in whose favor such account is established shall be entitled to draw upon such account by wire transfer at any time. All amounts shall be credited on or before the time that such amounts would otherwise be payable pursuant to the applicable section of this ARTICLE 9. Each of Buyer and Seller shall maintain the accounts so established for a period of 90 days after the Closing Date.
9.16 Safe Deposit Box and Safekeeping Business.
From and after the Effective Time, Buyer agrees to assume and discharge, in the usual course of banking business, the duties and obligations of Seller with respect to all safe deposit boxes located in the Branch, and to maintain all necessary facilities for the use of such boxes by the renters thereof during the period for which such persons have paid rent therefore in advance to Seller, subject to the provisions of the rental agreements between Seller and the respective renters of such boxes. From and after the Closing, Buyer shall assume, honor, and discharge the duties and obligations of Seller with respect to all safekeeping items obtained from Seller and shall be entitled to any right or benefit thereafter. Buyer is not assuming any liabilities of Seller with respect to safe deposit boxes or safe keeping items arising or based upon circumstances, events, acts or omissions occurring prior to the Effective Time, or any obligations of Seller with respect to the safe deposit boxes or safe keeping items to be performed prior to the Effective Time. At the Closing, Seller shall provide Buyer with a true and correct list of all Safe Deposit Contracts with respect to the Branch in effect as of the Closing Date, together with the rentals or other amounts paid on such Safe Deposit Contracts and the expiration dates of such Safe Deposit Contracts.
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9.17 Noncompetition Agreement.
For and in consideration of the purchase by Buyer of the Assets and the assumption of the Liabilities, the payment of the Premium and the other agreements and covenants contained in this Agreement, from the date hereof and for a period of three (3) years following the Closing Date, none of Seller or any of its affiliates, including, without limitation, its directors or executive officers, will (i) establish, own or operate a branch, bank, financial institution, loan production office or other office within ten miles of the location of the Branch (the Noncompete Area), other than the existing branch of Seller in Manor, Texas, or (H) solicit the banking business of any current customers of the Branch whose banking business or any part thereof is transferred to Buyer pursuant to the terms of this Agreement, or (Hi) solicit for employment, or advise or recommend any person to employ or solicit for employment, any Assumed Employee who becomes an employee of the Buyer. Notwithstanding the foregoing sentence, Seller shall not be deemed to be in violation of this Section 9.17 by virtue of (i) Sellers acceptance after the Closing Date of deposits received by Seller at any of its offices from persons or firms providing an address within the Noncompete Area, but who have not been solicited by Seller or any of its affiliates, including, without limitation, its directors, (ii) Sellers continued banking dealings, including marketing, with current customers of the Branch who also maintain accounts with Seller at other banking offices of Seller, a list of whom is attached hereto as Schedule 9.17, or (Hi) Sellers advertising in publications that are normally distributed in geographic areas that include both the Noncompete Area and geographic markets served by Sellers branches other than the Branch. In the event the Seller engages in a merger or similar transaction to which it is not the successor, the agreements and covenants contained in this Section ¶J7 shall not apply to the operations of such successor in the Noncompete Area in which such successor has had a continuing presence for at least 18 months prior to consummation of such successors acquisition of Seller, as applicable (a Preexisting Presence). Nothing in the preceding sentence will release such a successor from the agreements and covenants contained in this Section 9.17 in any Noncompete Area in which such successor did not have a Preexisting Presence. In the event such successor subsequently acquires a bank or bank holding company that has a Preexisting Presence in a Noncompete Area, such successor may continue the operations of such bank or bank holding company in any Noncompete Area in which a Preexisting Presence exists without regard to the noncompete provisions of this Section 9.17. Seller shall not be deemed to be in violation of this Section 9.17 by virtue of Sellers acquisition of a financial institution whose main office is located outside the Noncompete Area but which has branch offices located in the Noncompete Area, through a merger or similar transaction where the Seller is the successor, pursuant to which Seller will acquire the entire financial institution and not just the branch or branches of such financial institution located within the Noncompete Area. If any court of competent jurisdiction should determine that any term or terms of this covenant are too broad in terms of time, geographic area, lines of commerce or otherwise, such court shall modify and revise any such term or terms so that they comply with applicable law. Seller hereby acknowledges and agrees that Buyer will be irreparably damaged if the provisions of this Section 9.17 are not specifically enforced. Accordingly, Buyer shall be entitled to an injunction restraining any violation of this Section 9.17 by Seller (without any bond or other security being required), or any other appropriate decree of specific performance. Such remedies shall not be exclusive and shall be in addition to any other remedy that Buyer may have at law or in equity.
9.18 Books and Records.
Buyer shall allow Seller and its authorized agents and representatives to inspect any of the Records for any proper purpose during regular business hours after the Closing Date upon reasonable notice to Buyer (which notice shall specify the purpose of such inspection), and Seller may, at its own
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expense, make such copies of and excerpts from such books and records as it may deem desirable; provided, however, that all information, including copies of books and records, obtained by Seller from Buyer pursuant to this Section shall be and remain confidential information known to Seller or otherwise contained in Sellers books and records. Buyer shall maintain all material books and records relating to the Assets, the Liabilities and the business of the Branch for a period that is not less than the greater of (i) the period required by applicable law, rule or regulation or (ii) three (3) years from the Closing Date.
9.19 Optical Disk Records.
After the Closing Date, Seller shall provide research assistance, on a case-by-case basis, with respect to the Assets and Liabilities, to the extent the Records are only available as Optical Disk Records. Seller will use commercially reasonable efforts to comply with each research request made by Buyer on a timely basis, and Seller agrees to provide such research at no cost to Buyer until December 31, 2013; thereafter Buyer will reimburse Seller for reasonable search costs incurred, not to exceed $25 per hour
9.20 Taxes.
Buyer shall be responsible for the payment of all taxes (including transfer taxes), recording fees, Uniform Commercial Code filing fees and the like arising as a result of the purchase of the Assets; except that Buyer shall not be responsible for, or have any liability with respect to, taxes on any income to Seller arising out of this transaction. Seller shall cooperate with Buyer in Buyers efforts to minimize all taxes and fees payable by Buyer, if any, as a result of the transactions contemplated by this Agreement, provided that Seller can do so without incurring any out-of-pocket costs or expenses.
9.21 Allocation of Purchase Price.
The purchase price of the Assets and Liabilities under this Agreement will be allocated on an allocation schedule to be agreed to by Buyer and Seller before the Closing. At least 10 days prior to the Closing, Buyer will prepare an IRS Form 8594 reflecting the allocation of the purchase price as agreed to by Seller and Buyer and will submit such Form 8594 to Seller for review. Seller will inform Buyer in writing of any disagreements with the amounts allocated on Form 8594 within 5 days after receipt. The amounts shown on Form 8594 will become final should Seller fail to so inform Buyer of any disagreement within 5 days. Buyer and Seller agree that they will not take, nor will they permit any affiliated person to take, for income tax reporting purposes a position inconsistent with the final allocation.
ARTICLE 10
EMPLOYEE MATTERS
The parties shall follow the following procedure in dealing with employees of the Branch regarding employment after the Closing:
10.1 Notice to Employees and Information.
With respect to all employees of Seller affiliated with the Branch (Branch Employees), as soon as reasonably practicable, but no later than three(3) days after the date hereof, Seller shall notify each Branch Employee that Seller and Buyer have entered into an agreement with respect to the Buyers acquisition of the Branch. Seller has previously furnished to Buyer a schedule containing the name of each Employee, such Employees salary and benefits, and a synopsis of each Employees tenure with Seller and any other information reasonably requested by Buyer with respect to such Employee.
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10.2 Offer of Employment.
Buyer shall consider for employment all Branch Employees on such terms and conditions as are satisfactory to Buyer. No later than five (5) business days after Buyer has completed interviews with all Branch employees, Buyer will notify Seller which employees to whom Buyer intends to make offers of employment (the Assumed Employees). As of the Closing, Seller shall terminate the employment with Seller of such employees. Prior to the Closing, Seller shall permit Buyer to make contact with the Assumed Employees to explain its compensation and benefit package. After the Closing Date, Assumed Employees will be employed on an at-will basis by the Buyer provided, however, Buyer agrees not to terminate from employment any Assumed Employee except for cause for a period of six (6) months following the Closing Date. It is further provided that in no way shall Buyer be liable for any claims of that any Employee may have against Seller and Buyer may request a release from each Employee with respect thereto.
10.3 Costs of Termination.
Seller shall pay any and all costs (including, without limitation, severance pay and accrued vacation pay) associated with termination of any Employee who is terminated by Seller prior to the Closing Date.
10.4 Communications.
Buyer and Seller shall coordinate all communications to Employees, provided, however, this paragraph shall not be construed to require Buyer and Seller to act jointly at any time.
10.5 Sellers Retention of Liabilities.
Seller shall retain all liabilities and obligations (including, without limitation, the liability and obligation for all wages, salary, vacation pay and unemployment, medical, dental, vision, health, disability and retirement benefits), for any claims incurred by any employee of the Branch prior to the Effective Time. Buyer shall not at any time assume any liability for the benefits of any employee of the Branch under any of Sellers benefit plans. Seller shall be responsible for providing any employee of the Branch whose qualifying event, within the meaning of section 4980B(f)(3) of the Internal Revenue Code of 1986, as amended (the Code), occurs on or prior to the Effective Time (and such Employees qualified beneficiaries within the meaning of section 4980B(g)(1) of the Code) with the continuation of group health coverage required by section 4980B(f) of the Code under the terms of the health plan maintained by Seller.
10.6 No Third Party Beneficiaries.
Nothing in this Article is intended, nor shall it be construed, to confer any rights or benefits upon any person other than Buyer and Seller.
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ARTICLE 11
TERMINATION AND ABANDONMENT
11.1 Right of Termination.
This Agreement and the transactions contemplated hereby may be terminated and abandoned at any time prior to or at the Closing as follows, and in no other manner:
A. By the mutual consent of Seller and Buyer;
B. By either Buyer or Seller, if the Closing has not occurred by October 31, 2012, or such other date as Seller and Buyer shall agree in writing, unless the failure to so consummate by such time is due to a breach of this Agreement by the party seeking to terminate;
C. By Buyer if there shall be any actual or threatened litigation to restrain or invalidate the sale of the Assets to, or the assumption of the Liabilities by, Buyer that, in the good faith judgment of Buyer, after consultation with counsel and Seller, makes it inadvisable to proceed with such transaction;
D. By Seller if there shall be any actual or threatened litigation to restrain or invalidate the sale of the Assets to, or the assumption of the Liabilities by, Buyer that, in the good faith judgment of Seller, after consultation with counsel and Buyer, makes it inadvisable to proceed with such transaction;
E. By Buyer if there shall have been any material adverse change with respect to the Branch since December 31, 2011;
F. By either Buyer or Seller in the event of a material breach by the other of any representation, warranty or agreement contained herein that is not cured or cannot be cured within fifteen (15) days after written notice of such termination has been delivered to the breaching party; provided, however, that termination pursuant to this provision shall not relieve the breaching party of liability for such breach; or
G. By Buyer, if after completing due diligence, Buyer determines, in its sole and absolute discretion, that it does not desire to proceed with the transaction, provided that Buyer notifies Seller of such determination on or before thirty (30) days from the date of this Agreement.
11.2 Notice of Termination.
The power of termination provided for by Section 11.1 may be exercised only by a notice given in writing, as provided in Section 12.4.
11.3 Effect of Termination.
In the event of termination of this Agreement pursuant to Section 11.1, this Agreement shall become void and of no effect with no liability to any party hereto (or their respective officers, directors, stockholders, affiliates or representatives); provided, however, and notwithstanding anything to the foregoing to the contrary, (a) the provisions set forth in Section 12.15 (Confidentiality Agreement), this Section 11.3, Section 12.7 (Attorneys Fees) and Section 12.16 (Arbitration) shall remain in full force and effect and (b) no such termination shall relieve any party hereto of any liability or damages to the other party hereto resulting from any breach of this Agreement.
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ARTICLE 12
MISCELLANEOUS
12.1 Entire Agreement.
This Agreement and the other agreements, documents and instruments executed and delivered by the parties to each other at the Closing constitute the full understanding of the parties, a complete allocation of risks between them and a complete and exclusive statement of the terms and conditions of their agreement relating to the subject matter hereof and supersede any and all prior agreements, whether written or oral, that may exist between the parties with respect thereto.
12.2 Multiple Counterparts.
For the convenience of the parties hereto, this Agreement may be executed in multiple counterparts, each of which shall be deemed an original, and all counterparts hereof so executed by the parties hereto, whether or not such counterpart shall bear the execution of each of the parties hereto, shall be deemed to be, and shall be construed as, one and the same Agreement. A telecopy or facsimile transmission or pdf of a signed counterpart of this Agreement shall be sufficient to bind the party or parties whose signature(s) appear thereon.
12.3 Amendment.
This Agreement may be amended, modified or supplemented only by a written instrument signed by each party hereto.
12.4 Notices.
Any and all notices and other communications required or permitted to be given under this Agreement by any party hereto to the other party may be delivered personally or by overnight courier service or sent by mail, telex or facsimile or other electronic transmission, at the respective addresses or transmission numbers set forth below and shall be effective upon the earlier of actual receipt or (a) in the case of mail, upon the earlier of actual receipt or 3 business days after deposit in the United States Postal Service, first class certified or registered mail, postage prepaid, return receipt requested; and (b) in the case of overnight courier service, one business day after delivery to such courier service with instructions to deliver the next business day. The parties may change their respective addresses and transmission numbers by written notice to all other parties, sent as provided in this Section. All communications must be in writing and addressed as follows:
If to Seller: |
Independent Bank 1600 Redbud Blvd., Suite 400 Mc Kinney, Texas 75069 Attn: Jan Webb Telecopy: 972-562-5496 Email address: JWebb@independent-bank.com |
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with a copy to: |
Haynie Rake & Repass, P.C. 14643 Dallas Parkway, Suite 550 Dallas, Texas 75254 Attn: Mark S. Haynie Telecopy: 972-716-1850 Email address: mark@hrrpc.com |
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If to Buyer: |
Citizens National Bank 118 S. Houston Cameron, Texas 76520 Attn: Michael E. Vance, President and CEO Telecopy: 254/697-6504 Email address . mvance@cnbanktexas.com |
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with a copy to: |
Beard Kultgen Brophy Bostwick Dickson &Squires, LLP 220 South Fourth Street Waco, Texas 76701 Attn: Richard E. Brophy, Jr. Telecopy: 254/776-3591 Email address . Brophy@thetexasfirm.com |
12.5 Binding Effect.
All of the terms, covenants, representations, warranties and conditions of this Agreement shall be binding upon, and inure to the benefit of and be enforceable by, the parties hereto and their respective successors, representatives and permitted assigns. Nothing expressed or referred to herein is intended or shall be construed to give any person other than the parties hereto any legal or equitable right, remedy or claim under or in respect of this Agreement, or any provision herein contained, it being the intention of the parties hereto that this Agreement, the assumption of obligations and statements of responsibilities hereunder, and all other conditions and provisions hereof are for the sole benefit of the parties to this Agreement and for the benefit of no other person. Nothing in this Agreement shall act to relieve or discharge the obligation or liability of any third party to any party to this Agreement, nor shall any provision give any third party any right of subrogation or action over or against any party to this Agreement.
12.6 Governing Law.
This Agreement shall be construed in accordance with and governed by the laws of the State of Texas.
12.7 Attorneys Fees and Costs.
In the event attorneys fees or other costs are incurred to secure performance of any of the obligations herein provided for, or to establish damages for the breach thereof, or to obtain any other appropriate relief, whether by way of prosecution or defense, the prevailing party shall be entitled to recover reasonable attorneys fees and costs incurred therein.
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12.8 Severability.
In the event that any provision of this Agreement is held to be illegal, invalid or unenforceable under present or future laws, then (a) such provision shall be fully severable and this Agreement shall be construed and enforced as if such illegal, invalid or unenforceable provision were not a part hereof; (b) the remaining provisions of this Agreement shall remain in full force and effect and shall not be affected by such illegal, invalid or unenforceable provision or by its severance from this Agreement; and (c) there shall be added automatically as a part of this Agreement a provision as similar in terms to such illegal, invalid or unenforceable provision as may be possible and still be legal, valid and enforceable.
12.9 Assignability.
No party to this Agreement shall assign this Agreement, by operation of law or otherwise, in whole or in part, without the prior written consent of the other parties. Any assignment made or attempted in violation of this Section shall be void and of no effect.
12.10 Rules of Construction.
All sections referred to herein are sections of this Agreement and all exhibits and schedules referred to herein are exhibits and schedules, respectively, attached to this Agreement. Descriptive headings as to the contents of particular sections are for convenience only and shall not control or affect the meaning, construction or interpretation of any provision of this Agreement. The exhibits and schedules to this Agreement (and any appendices thereto) referred to in this Agreement and attached hereto are and shall be incorporated herein and made a part hereof for all purposes as though set forth herein verbatim. Each use herein of the masculine, neuter or feminine gender shall be deemed to include the other genders. Each use herein of the plural shall include the singular and vice versa, in each case as the context requires or as it is otherwise appropriate. The word or is used in the inclusive sense.
12.11 Expenses.
Seller shall pay all of its expenses and costs (including, without limitation, all attorneys fees and expenses and application fees), and Buyer shall pay all of its expenses and costs (including, without limitation, all attorneys fees and expenses and application fees), in connection with this Agreement and the consummation of the transactions contemplated hereby, except as specifically provided otherwise in this Agreement.
12.12 Waiver.
Any of the term or conditions of this Agreement may be waived at any time by the party that is entitled to the benefit thereof. Such action shall be evidenced by a signed written notice given in the manner provided in Section 12.4. No party to this Agreement shall by any act (except by a written instrument given pursuant to Section 12.4) be deemed to have waived any right or remedy hereunder or to have acquiesced in any breach of any of the terms and conditions hereof. No failure to exercise, nor any delay in exercising any right, power or privilege hereunder by any party hereto shall operate as a waiver thereof. No single or partial exercise of any right, power or privilege hereunder shall preclude any other or further exercise thereof or the exercise of any other right, power or privilege. A waiver of any party of any right or remedy on any one occasion shall not be construed as a bar to any right or remedy that such party would otherwise have on any future occasion or to any right or remedy that any other party may have hereunder.
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12.13 Specific Performance.
Each of the parties hereto acknowledges that the other parties would be irreparably damaged and would not have an adequate remedy at law for money damages in the event that any of the covenants contained in this Agreement were not performed in accordance with its terms or otherwise were materially breached. Each of the parties hereto therefore agrees that, without the necessity of proving actual damages or posting bond or other security, the other party shall be entitled to temporary and/or permanent injunction or injunctions to prevent breaches of such performance and to specific enforcement of such covenants in addition to any other remedy to which they may be entitled, at law or in equity.
12.14 Public Disclosure.
Seller and Buyer will consult with each other regarding the content of any press release or other public disclosure concerning this transaction and obtain the prior written approval of the other party hereto; provided, however, that notwithstanding anything else contained in this Section, Seller and Buyer shall be permitted to make any public disclosure or governmental filings as its counsel may deem necessary to maintain compliance with or to prevent violations of applicable federal or state laws or regulations.
12.15 Confidential Information.
Except as may be required by applicable securities laws or as may be necessary to obtain the regulatory approvals as described in Section 6.3, Seller and Buyer will treat as confidential any information related to the transactions described herein obtained from any other party. Seller and Buyer will use such information, and not disclose it to others, except their employees, advisors, directors and agents, expressly for the purposes of evaluating the potential of consummating the transactions proposed herein. The term information does not include any information that (a) at the time of disclosure or thereafter is generally available to and known by the public, (b) was available on a nonconfidential basis from a source other than Seller or Buyer or (c) was independently acquired or developed without violating any laws or obligations under this Agreement.
12.16 Arbitration.
A. Any controversy or claim between Buyer and Seller arising out of or relating to this Agreement or any agreements or instruments relating hereto or delivered in connection herewith, including, but not limited to, a claim based on or arising from an alleged tort, will, at the request of any party, be determined by arbitration in accordance with the United States Arbitration Act (Title 9, U.S. Code), notwithstanding any choice of law provision in this Agreement, and under the Commercial Rules of the American Arbitration Association (AAA). The AAA will be instructed by either or both parties to prepare a list of proposed arbitrators. Within ten (10) days of receipt of the list, each party may strike one name from the list. The AAA will then appoint one arbitrator from the name(s) remaining on the list. The arbitration will be conducted in Waco, Texas. The arbitrator shall give effect to statutes of limitation in determining any claim. Any controversy concerning whether an issue is arbitrable shall be determined by the arbitrator. The award rendered by the arbitrator shall set forth findings of the facts and conclusions of law and shall be final, and the judgment may be entered in any court having jurisdiction thereof. A failure by the arbitrator to make findings of fact and conclusions of law shall be grounds for overturning the award. The institution and maintenance of an action for judicial relief or pursuit of a provisional or ancillary remedy shall not constitute a waiver of the right of any party, including the plaintiff, to submit the controversy or claim to arbitration if any other party contests such action for judicial relief; and
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B. In any arbitration proceeding, the arbitrator is authorized to apportion costs and expenses, including investigation, legal and other expense, which will include, if applicable, a reasonable estimate of allocated costs and expenses of in-house legal counsel and legal staff. Such costs and expenses are to be awarded only after the conclusion of the arbitration and will not be advanced during the course of such arbitration.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized officers and their corporate seals to be hereunto affixed as of the date first above written.
Buyer: | ||
CITIZENS NATIONAL BANK | ||
By: |
/s/ Michael E. Vance |
|
Michael E. Vance President and CEO |
||
Seller: | ||
INDEPENDENT BANK | ||
By: |
/s/ Jan Webb |
|
Jan Webb | ||
Executive Vice President and COO |
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Branch Purchase and Assumption Agreement
EXHIBIT 21.1
INDEPENDENT BANK GROUP, INC.
LIST OF SUBSIDIARIES
Name |
State of
|
|||
Parent: | Independent Bank Group, Inc. | Texas | ||
Banking Subsidiary: | Independent Bank | Texas | ||
Nonbanking Subsidiaries: | IBG Adriatica Holdings, Inc. | Texas | ||
IBG Aircraft Acquisition, Inc. | Texas | |||
IBG Real Estate Holdings, Inc. | Texas | |||
IB Trust I | Delaware | |||
IB Trust II | Delaware | |||
IB Trust III | Delaware | |||
IB Centex Trust I | Delaware | |||
Community Group Statutory Trust I | Delaware |
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the use in this Registration Statement on Form S-1 of Independent Bank Group, Inc. of our report, dated February 27, 2013, relating to our audit of the consolidated financial statements, appearing in the Prospectus, which is part of this Registration Statement.
We also consent to the reference to our firm under the caption, Experts in such Prospectus.
Dallas, Texas
February 27, 2013