Exhibit 2.5
SECOND ADDENDUM
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TO
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ACQUISITION AGREEMENT
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THIS SECOND ADDENDUM TO ACQUISITION AGREEMENT, dated as of April 15,
2005, ("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"), PRIVEE FINANCIAL, INC., a Delaware
corporation ("Privee"), and SNB INTERIM NATIONAL BANK, an interim national
banking association ("Interim Bank").
Recitals:
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A. Sequoia, FNB, HNB and Privee have entered into a certain
Acquisition Agreement, dated as of November 5, 2004, as
amended by a certain First Addendum to Acquisition Agreement,
dated as of December 13, 2004, (the "Agreement").
B. The Agreement contemplates that, upon organization of the
Interim Bank, the Interim Bank would become a party to the
Agreement by the execution and delivery of an addendum to the
Agreement, in form and substance acceptable to Sequoia, FNB,
HNB, Privee and the directors and shareholders of the Interim
Bank.
C. Effective as of January 14, 2005, FNB obtained preliminary
approval of the Office of the Comptroller of the Currency (the
"OCC") to organize the Interim Bank; and the execution and
delivery of this Addendum has been authorized and approved by
the directors and shareholders of the Interim Bank.
D. HNB and Privee have withdrawn all of their regulatory
applications pending with the OCC and the Board of Governors
of the Federal Reserve System and desire to be released from
all of their obligations under the Agreement. Sequoia, FNB and
Interim Bank desire to proceed with an alternative closing, as
described in Section 5.5 of the Agreement, and are willing to
release HNB and Privee from all of their obligations under the
Agreement, subject to the terms of this Addendum.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein and in the Agreement, the parties hereto agree as
follows:
1. SNB Interim National Bank as Party. Sequoia, FNB, HNB, Privee and
Interim Bank hereby agree that, effective upon the execution and delivery of
this Addendum, Interim Bank shall become a party to the Agreement and shall be
bound by all of the provisions thereof.
2. Alternative Closing. Sequoia, FNB, HNB, Privee and Interim Bank
hereby acknowledge and agree as follows:
(a) Under Section 5.5 of the Agreement, FNB and Sequoia have agreed to
consummate and close the Consolidation and the Liquidation without also closing
the Stock Purchase and the Bank Merger in the event that any material condition
to the Closing of the Stock Purchase and the Bank Merger is impossible to
satisfy in a timely manner.
(b) Receipt by HNB and Privee of regulatory approvals (from the OCC and
the Board of Governors of the Federal Reserve System, respectively) is a
material condition to the Closing of the Stock Purchase and the Bank Merger and
such approvals have not been obtained as of the date of this Addendum.
(c) As of the date of this Addendum, HNB and Privee shall cease to be
parties to the Agreement, Articles 3 and 4 of the Agreement shall be deemed null
and void and of no further force or effect, and FNB, Interim Bank and Sequoia
may immediately proceed to close the Consolidation and the Liquidation, as
contemplated by Section 5.5 of the Agreement.
(d) FNB, Interim Bank and Sequoia agree that, at the Closing
contemplated by Section 5.5 of the Agreement, Article 2 of the Agreement (the
Plan of Liquidation) shall be effected by a merger of the Consolidated Bank with
and into FNB, pursuant to a merger agreement (the "Merger Agreement") to be
executed between the Consolidated Bank and FNB in a form acceptable to FNB,
Interim Bank, Sequoia and the OCC. The Plan of Liquidation, in the form attached
to the Acquisition Agreement as Exhibit D, shall provide for a liquidation of
the Consolidated Bank pursuant to the Merger Agreement (rather than by a
transfer of assets and liabilities to FNB and transfer of the Sequoia national
bank charter to HNB). The corporate existence (including the national bank
charter) of the Consolidated Bank shall terminate upon the effectiveness of the
Merger Agreement (and in accordance with its terms). Also, Section 2.5 of the
Acquisition Agreement shall be deemed null and void and of no further force or
effect.
(e) In consideration of the mutual benefit to be derived from a release
of claims, and as a material inducement to enter into this Addendum, Sequoia,
FNB and Interim Bank, on the one hand, and HNB and Privee on the other hand, for
themselves as well as for any legal successors and assigns, hereby release and
forever discharge each other and each of their past and present directors,
officers, trustees, shareholders, agents, employees, affiliated companies, and
each of their respective agents, accountants, attorneys and other legal
representatives, and their successors and assigns (collectively, their
"Associated Parties") from any and all claims, demands, liabilities, damages,
obligations, actions and causes of actions, whether or not known or suspected,
which in the past they owned or held or presently own or hold against each other
or their Associated Parties, based upon or arising out of any matter, cause,
fact, thing, act or omission occurring or existing at any time through the date
of this Addendum, in any way involving, related to, connected with or arising
from the Agreement.
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(f) The parties hereto understand and agree that the claims released
hereby are intended to and do include any and all claims of every nature and
kind whatsoever, known, unknown, suspected or unsuspected which each may have
against the other in connection with the Agreement. Sequoia, FNB, HNB, Privee
and Interim Bank expressly waive their rights under California Civil Code
Section 1542 which reads:
"A general release does not extend to claims which the
creditor does not know or suspect to exist in his favor at the
time of executing the release, which if known by him must have
materially affected his settlement with the debtor."
(g) Sequoia, FNB, HNB, Privee and Interim Bank agree to cooperate and
use their respective best efforts to execute and deliver, or cause to be
executed and delivered, such documents, certificates, amendments and other
agreements as may be reasonably necessary or appropriate to carry out the
purposes described in this Section 2.
(h) Nothing in this Addendum shall be deemed to (or is intended to)
amend, modify, replace or otherwise adversely affect any of the rights or
remedies of the parties to the Agreement, other than as expressly set forth in
this Section 2.
3. Defined Terms. All capitalized terms used herein and not otherwise
defined shall have the same meanings as assigned to such terms in the Agreement.
4. Governing Law. This 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 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 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, and those transmitted by facsimile shall
be regarded as valid substitutes for the originals thereof.
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IN WITNESS WHEREOF, Sequoia, FNB, HNB, Privee and Interim Bank have
caused this Second 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 Chairman and
Chief Executive Officer Chief Executive Officer
SNB INTERIM NATIONAL BANK
By: /s/ THOMAS C. MCGRAW
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Thomas C. McGraw
Chief Executive Officer
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