Exhibit 2.5
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FIRST ADDENDUM
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TO
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ACQUISITION AGREEMENT
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THIS FIRST ADDENDUM TO ACQUISITION AGREEMENT, dated as of December 13,
2004, ("First Addendum"), is entered into by and among SEQUOIA NATIONAL BANK, a
national banking association ("Sequoia"), FIRST NATIONAL BANK OF NORTHERN
CALIFORNIA, a national banking association ("FNB"), HEMISPHERE NATIONAL BANK, a
national banking association ("HNB"), and PRIVEE FINANCIAL, INC., a Delaware
corporation ("Privee").
Recitals:
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A. Sequoia, FNB and HNB entered into a certain Acquisition
Agreement, dated as of November 5, 2004 (the "Agreement").
B. The Agreement contemplates, among other things, that FNB would
sell, and HNB would purchase, pursuant to the "Plan of
Liquidation," all of the outstanding capital stock of the
"Consolidated Bank" that FNB shall acquire in the
"Consolidation" (as such terms are defined in the Agreement).
C. Privee is the registered bank holding company for HNB, and in
order to obtain all approvals of the Office of the Comptroller
of the Currency (the "OCC") required under terms of the
Agreement, the parties hereto agree that Privee should be the
purchaser of the "Consolidated Bank Stock" (as defined in the
Agreement).
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein and in the Agreement, the parties hereto agree as
follows:
1. Privee as Party. Sequoia, FNB and HNB hereby agree that, effective
upon the execution and delivery of this First Addendum, Privee shall become a
party to the Agreement and shall be bound by all of the provisions thereof. The
Agreement, as amended by this First Addendum, is binding upon and is for the
benefit of Sequoia, FNB, Privee and HNB and their respective successors and
permitted assigns. This First Addendum is not made for the benefit of any
person, firm, corporation or association not a party hereto, and no other
person, firm, corporation or association shall acquire or have any right under
or by virtue of this First Addendum. No party may assign this First Addendum or
any of its rights, privileges, duties or obligations hereunder without the prior
written consent of the other parties to this First Addendum. Notices and legal
process to be delivered to or served upon Privee shall be sent to the same
address in Miami, Florida, as provided therein for HNB, with a copy to Kennedy &
Baris, L.L.P. at the same address in Bethesda, Maryland, provided for such firm.
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2. Stock Purchase and Bank Merger. Sequoia, FNB, Privee and HNB
hereby agree that all references to "HNB" in the Agreement, as amended by this
First Addendum, shall mean, collectively and jointly and severally, Privee
Financial, Inc. and Hemisphere National Bank, except as the context may require
otherwise, in which case such reference to "HNB" shall mean either Privee
Financial, Inc. or Hemisphere National Bank, as appropriate; provided, however,
that Sequoia, FNB, HNB and Privee agree that each reference to "HNB" in Article
3 of the Agreement shall mean Privee Financial, Inc., and the Stock Purchase
Agreement, substantially in the form attached hereto as Exhibit A, shall be
substituted in the place of the form of Stock Purchase Agreement which is
attached to the Agreement as Exhibit G thereto, subject to final approval of the
form of said Stock Purchase Agreement by the OCC; and further provided, however,
that Sequoia, FNB, HNB and Privee agree that "Bank Merger" as used in the
Agreement and Exhibits thereto, and the "Merger" in Article 4 of the Agreement
and in the Bank Merger Agreement, substantially in the form attached hereto as
Exhibit B, which shall be substituted in the place of the form of Bank Merger
Agreement which is attached to the Agreement as Exhibit H thereto, shall mean
the merger of the Consolidated Bank and Hemisphere National Bank.
3. Branch Authorization and Relocation. Sequoia, FNB, Privee and HNB
hereby agree that the "Branch Authorization", as used in the Agreement, as
amended hereby, shall refer to the authority of the Consolidated Bank to conduct
a banking business under a national bank charter from its main office located at
65 Post Street, San Francisco, California, subject to a space sharing agreement
with FNB. All references in the Agreement or any Exhibit thereto to an office of
the Consolidated Bank located in Los Angeles, California shall refer to the main
office located at 65 Post Street, San Francisco, California. The parties further
agree that as part of and in connection with the Merger, and subject to the
approval of the Comptroller of the Currency, the former main office of the
Consolidated Bank shall become a branch of HNB and such branch shall be
relocated by HNB immediately following effectiveness of the Merger from 65 Post
Street, San Francisco, California, to Los Angeles California.
4. Governing Law. This First Addendum shall be governed by and
construed in accordance with the laws of the State of California.
5. Attorneys' Fees. In any action at law or suit in equity in
relation to this First Addendum, the prevailing party in such action or suit
shall be entitled to receive a reasonable sum for its attorneys' fees and all
other reasonable costs and expenses incurred in such action or suit.
6. Counterparts. This First Addendum may be executed in several
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, Sequoia, FNB, HNB and Privee have caused this First
Addendum to Acquisition Agreement to be signed by their duly authorized officers
as of the day and year first above written.
FIRST NATIONAL BANK SEQUOIA NATIONAL BANK
OF NORTHERN CALIFORNIA
By: /s/ THOMAS C. MCGRAW By: /s/ PETER T. PAUL
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Thomas C. McGraw Peter T. Paul
Chief Executive Officer Chairman and Chief Executive Officer
By: /s/ JIM D. BLACK
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Jim D. Black
President
HEMISPHERE NATIONAL BANK PRIVEE FINANCIAL, INC.
By: /s/ WALTER R. COOK By: /s/ WALTER R. COOK
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Walter R. Cook Walter R. Cook
Chairman and Chief Executive Officer Chairman and Chief Executive Officer
[Note: Exhibits A and B to this First Addendum to Acquisition Agreement are
omitted.]
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