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EXHIBIT A
PLAN OF MERGER
This PLAN OF MERGER is dated as of November 30, 1999 ("Plan of Merger"), and entered into by and between Xxxxxx Acquisition Corporation, a Minnesota
corporation ("Acquisition"), and River Bancorp, Inc., a Minnesota corporation ("River"). This Plan of Merger is joined in by Community First Bankshares, Inc., for purposes of the
exchange of shares described in Article II, below.
WHEREAS,
CFB and River have entered into an Agreement and Plan of Merger dated July 26, 1999 (the "Agreement") that contemplates the merger of River with and into CFB (the
"Merger"); and
WHEREAS,
CFB, River and Acquisition have entered into an Assignment and First Amendment of Agreement and Plan of Merger (the "Assignment"), pursuant to which CFB has assigned its
right, title and interest under the Agreement to Acquisition, subject to the exchange of CFB Common Stock for River Common Stock in the Merger; and
WHEREAS,
the Boards of Directors of Acquisition and River deem it fair and equitable to, and in the best interests of, their respective corporations and stockholders that River be
merged with and into Acquisition upon the terms and conditions provided in this Plan of Merger and the Agreement and pursuant to the Minnesota Business Corporation Act (the "Act"); and
WHEREAS,
the Board of Directors of CFB has authorized the issuance of fully paid and nonassessable shares of common stock, $.01 par value, of CFB ("CFB Common Stock") pursuant hereto.
NOW,
THEREFORE, in consideration of the premises and the agreements herein contained, the parties hereto adopt and agree to the following agreements, terms and conditions relating to
the Merger and the mode of carrying the same into effect:
ARTICLE I
THE MERGER
1.01. The Merger. Subject to the terms and conditions of the Agreement, River will be merged with and
into Acquisition, which will be the surviving corporation, in accordance with and with the effects provided in the Act.
1.02. Effective Time of the Merger. Subject to the provisions of the Agreement, articles of merger (the
"Articles of Merger") shall be duly prepared and executed by Acquisition and River and thereafter delivered to the Secretary of State of the State of Minnesota for filing, as provided in the Act, on
or as soon as practicable after the Closing Date. The Merger shall become effective upon the filing of the Articles of Merger with the Secretary of State of the State of Minnesota or at such later
time as is provided in the Articles of Merger (the "Effective Time").
1.03. Effects of the Merger.
(a) At
the Effective Time, (i) the separate existence of River shall cease and River shall be merged with and into Acquisition as provided in
Section 302A.641 of the Act (Acquisition and River are sometimes referred to herein as the "Constituent Corporations" and Acquisition is sometimes referred to herein as the "Surviving
Corporation"), (ii) the Articles of Incorporation of Acquisition in effect as of the Effective Time (the "Articles") shall be the Articles of Incorporation of the Surviving Corporation,
(iii) the Bylaws of Acquisition in effect as of the Effective Time (the "Bylaws") shall be the Bylaws of the Surviving Corporation and (iv) the members of the Board of Directors and
committees thereof and the officers of Acquisition immediately prior to the Effective Time shall be
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the
members of the Board of Directors and committees thereof and the officers of the Surviving Corporation, respectively.
(b) At
and after the Effective Time, the Surviving Corporation shall possess all the rights, privileges, powers and franchises of a public as well as a private nature,
and be subject to all restrictions, disabilities and duties of each of the Constituent Corporations; and all and singular rights, privileges, power and franchises of each of the Constituent
Corporations, and all property, real, personal and mixed, and all debts due to either of the Constituent Corporations on whatever account, as well as for stock subscriptions and all other things in
action or belonging to each of the Constituent Corporations, shall be vested in the Surviving Corporation; and all property, rights, privileges, power and franchises, and all and every other interest
shall be thereafter as effectually the property of the Surviving Corporation as they were of the Constituent Corporations, and the title to any real estate vested by deed or otherwise, in either of
the Constituent Corporations, shall not revert or be in any way impaired; but all rights of creditors and all liens upon any property of either of the Constituent Corporations shall be preserved
unimpaired, and all debts, liabilities and duties of the Constituent Corporations shall thenceforth attach to the Surviving Corporation, and may be enforced against it to the same extent as if said
debts and liabilities had been incurred by it. Any action or proceeding, whether civil, criminal or administrative, pending by or against either Constituent Corporation shall be prosecuted as if the
Merger had not taken place, and the Surviving Corporation may be substituted as a party in such action or proceeding in place of any Constituent Corporation.
ARTICLE II
EFFECT OF THE MERGER ON THE CAPITAL STOCK OF THE CONSTITUENT CORPORATIONS
2.01. Effect on Capital Stock. As of the Effective Time, by virtue of the Merger and without any action
on the part of the holders of any shares of River Common Stock, but subject to the conditions of the Agreement and the provisions of Section 302A.471 of the Act:
(a) Conversion of River Stock. Subject to adjustment pursuant to Section 2.1(c) and 2.1(d) of the Agreement, the aggregate number of shares of
CFB Common Stock to be exchanged for all of the issued and
outstanding shares of River Common Stock and any and all options, warrants and rights exercisable for or convertible into shares of River Common Stock shall be 300,000 shares of CFB Common Stock.
All
calculations will be rounded to four decimal places. Any fractional share of CFB Common Stock will be paid in cash in accordance with Section 2.2(e) of the Agreement.
(b) Cancellation of Shares. All shares of River Common Stock issued and outstanding immediately prior
to the Effective Time shall no longer be outstanding and shall automatically be canceled and retired
and shall cease to exist, and each holder of a certificate representing any such shares shall cease to have any rights with respect thereto, except the right to receive the shares of CFB Common Stock
and cash to be exchanged or paid in consideration therefor upon the surrender of such certificate in accordance with this Plan of Merger, without interest.
(c) Cancellation of Options, Warrants and Rights. All options, warrants and rights exercisable for or
convertible into shares of River Common Stock, as existing and unexercised immediately prior to the Effective Time, shall no longer be outstanding and shall automatically be canceled and retired and
shall cease to exist and each holder shall cease to have any rights with respect thereto.
(d) Dissenters' Shares. Each outstanding share of River Common Stock as to which dissenters' rights
have been asserted in accordance with the procedures of the Act and not withdrawn shall be accorded the rights provided by the Act and shall not be converted into or represent rights to receive
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the
consideration hereunder unless and until the holder shall have failed to perfect or effectively withdrawn or lost such dissenters' rights.
2.02. Exchange of Certificates.
(a) Exchange Agent. At the Closing, CFB shall deposit with Norwest Bank Minnesota, N.A. or such other
bank or trust company acceptable to the parties (the "Exchange Agent"), for the benefit of the holders of shares of River Common Stock, certificates dated the Closing Date representing the shares of
CFB Common Stock and the cash to be paid in lieu of fractional shares to be issued and paid pursuant to Section 2.1 of the Agreement in exchange for the outstanding shares of River Common
Stock.
(b) Exchange Procedures. The exchange of shares of River Common Stock for shares of CFB Common Stock
shall be pursuant to the procedures provided for in Section 2.2(b)-(e) of the Agreement.
(c) Lost or Destroyed Shares. In the event any River Certificate shall have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the person claiming such River Certificate to be lost, stolen or destroyed and, if required by the Exchange Agent, the posting by such person
of a bond in such amount as CFB may direct as indemnity against any claim that may be made against it with respect to such River Certificate, the Exchange Agent will issue in exchange for such lost,
stolen or destroyed River Certificate the shares of CFB Common Stock, and cash in an amount as determined in accordance with the provisions of the Agreement.
2.03. Conversion of Common Stock of Acquisition. At the Effective Time, the shares of Acquisition
Common Stock validly issued and outstanding immediately prior to the Effective Time shall continue outstanding as the sole outstanding shares of capital stock of the Surviving Corporation.
ARTICLE III
CONDITIONS; TERMINATION; AMENDMENT
3.01. Conditions to the Merger. Consummation of the Merger is conditioned upon the fulfillment or
waiver of the conditions precedent set forth in Article 6 of the Agreement.
3.02. Termination. This Plan of Merger may be terminated and the Merger abandoned by mutual consent of
the respective Boards of Directors of River and Acquisition at any time prior to the Effective Time. If the Agreement is terminated in accordance withArticle 7 thereof, then this Plan of Merger
will terminate simultaneously and the Merger will be abandoned without further action by River or Acquisition.
3.03. Amendment. This Plan of Merger may not be amended except by an instrument in writing signed on
behalf of each of the parties hereto.
3.04. Extension; Waiver. At any time prior to the Effective Time, Acquisition, CFB and River, by action
taken or authorized by their respective Boards of Directors (or, in the case of CFB, the Finance Committee of its Board 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 and (ii) waive compliance by the other with any of the agreements or conditions contained herein. Any
agreement on the part of a party hereto to any such extension or waiver shall be valid only if set forth in written instrument on behalf of such party.
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ARTICLE IV
GENERAL PROVISIONS
4.01. Notices. All notices and other communications hereunder shall be in writing and shall be deemed
given if delivered personally or by nationally recognized overnight courier service, telecopied (with receipt confirmed) or mailed by registered or certified mail (return receipt requested) to the
parties at the following addresses (or at such other address for a party as shall be specified by like notice):
(a)
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| Community First Bankshares, Inc.
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and/or CFB, to:
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Attn: Xxxxx X. Xxxxxx, Senior Vice President
000 Xxxx Xxxxxx
Xxxxx, XX 00000
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with a copy to:
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Xxxxxxxxx & Xxxxxx P.L.L.P.
Attn: Xxxxxx X. Xxxxxxx, Esq.
4200 IDS Center
00 Xxxxx 0xx Xxxxxx
Xxxxxxxxxxx, XX 00000-0000
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(b)
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if to River, to:
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Xxxxxxx X. Xxxxx
River Bancorp, Inc.
c/o Itasca State Bank of Grand Rapids
0000 Xxxxxxxx Xxxxxx Xxxxx
Xxxxx Xxxxxx, XX 00000
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with a copy to:
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Xxxxx X. Xxxxxx, Esq.
Faegre & Xxxxxx
2200 Norwest Center
00 Xxxxx 0xx Xxxxxx
Xxxxxxxxxxx, XX 00000
4.02. Interpretation. The headings contained in this Plan of Merger are for reference purposes only and
shall not affect in any way the meaning or interpretation of this Plan of Merger.
4.03. Counterparts. This Plan of Merger may be executed in two or more counterparts, all of which shall
be considered one and the same agreement.
4.04. Governing Law. This Plan of Merger shall be governed and construed in accordance with the laws of
the State of Minnesota.
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TABLE OF CONTENTS TO AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER
ARTICLE 1
THE MERGER
ARTICLE 2
EFFECT OF THE MERGER ON THE CAPITAL STOCK
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
ARTICLE 4
COVENANTS OF RIVER AND CFB
ARTICLE 5
ADDITIONAL AGREEMENTS
ARTICLE 6
CONDITIONS PRECEDENT
ARTICLE 7
TERMINATION AND AMENDMENT
ARTICLE 8
GENERAL PROVISIONS
ASSIGNMENT AND FIRST AMENDMENT OF AGREEMENT AND PLAN OF MERGER
PLAN OF MERGER
ARTICLE I
THE MERGER
ARTICLE II
EFFECT OF THE MERGER ON THE CAPITAL STOCK OF THE CONSTITUENT CORPORATIONS
ARTICLE III
CONDITIONS; TERMINATION; AMENDMENT
ARTICLE IV
GENERAL PROVISIONS
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