EXHIBIT 4
AGREEMENT AND PLAN OF REORGANIZATION
AGREEMENT AND PLAN OF REORGANIZATION
This Agreement and Plan of Reorganization (this "AGREEMENT") is made and
entered into as of the 31st day of October, 1996, by and between FIRST SECURITY
BANK, N.A., a national banking association ("FSB"), FIRST SECURITY INTERIM BANK,
N.A., an interim national banking association to be organized under the laws of
the United States ("FSC SUB"), and FIRST SECURITY CORPORATION, a Delaware
corporation ("FSC").
RECITALS
A. FSB is a national banking association organized under the laws of the
United States, having authorized capital stock of 4,000,000 shares of common
stock, par value Twenty Five Dollars ($25.00) per share ("FSB COMMON STOCK"), of
which, as of September 30, 1996, there were 2,370,786 shares issued and
outstanding.
B. FSC is a qualified multi-bank holding company and owns in excess of
99.9% of the issued and outstanding shares of FSB Common Stock.
C. FSC Sub will be a national banking association organized by FSC under
the laws of the United States and FSC shall own all of the issued and
outstanding capital stock of FSC Sub.
D. The parties acknowledge that FSC is in the process of consolidating
all of its banking subsidiaries into FSB. First Security Bank of Idaho, N.A., a
wholly-owned subsidiary of FSC, was the first such subsidiary to be merged with
and into FSB, with FSB as the surviving national banking association, effective
as of June 21, 1996, and the Boards of Directors of each of FSB and First
Security Bank of Oregon, an Oregon savings bank ("FSBO") and a wholly-owned
subsidiary of FSC, have approved the merger of FSBO with and into FSB, with FSB
as the surviving association.
E. The Board of Directors of FSB and the Executive Committee of FSC
desire that FSC Sub be merged with and into FSB, with FSB to be the surviving
association of the merger.
F. The purpose of such merger is to convert the minority shareholders of
FSB, who collectively hold less than .04% of the outstanding shares of FSB, into
shareholders of FSC, which conversion will eliminate considerable burden and
cost in the performance by FSB of its regular business activities and will be
consistent with the consolidation of all banking subsidiaries into a single,
wholly-owned subsidiary.
G. The Board of Directors of FSB and the Executive Committee of FSC, each
by resolutions duly adopted pursuant to the authority given by and in accordance
with the laws governing them, have approved this Agreement and authorized the
execution hereof.
AGREEMENT
In consideration of the recitals listed above, and of the terms and mutual
covenants and conditions set forth below, and for other good and valuable
consideration, the receipt and sufficiency of which the parties hereby
acknowledge, the parties hereto covenant and agree, subject to the satisfaction
or waiver of the conditions contained herein, that FSC Sub shall be merged with
and into FSB, in accordance with the laws of the United States, and do hereby
agree, prescribe and set
forth the terms and conditions of such merger (the "MERGER"), and the mode of
carrying the same into effect, as follows:
1. ORGANIZATION OF FSC SUB. In the event FSC Sub is not an existing
corporation on the date of execution of this Agreement, FSC covenants and agrees
to diligently take any and all actions necessary and proper to effect the due
incorporation and organization of FSC Sub as an interim national banking
association under the laws of the United States. The authorized number of
shares of capital stock of FSC Sub shall be 1,000 shares having a par value of
Twenty-Five Dollars ($25.00) per share ("FSC SUB COMMON STOCK"). FSC and its
officers shall undertake each and every additional action reasonable and proper
to effectuate the organization of FSC Sub provided hereby so as to enable FSC
Sub to merge with Bank as contemplated hereby. Inasmuch as FSC Sub is being
formed for the sole purpose of participating in the Merger, FSC Sub shall not
undertake or perform any business or receive or hold any assets (other than FSC
Common Stock) during its existence.
2. THE MERGER, THE SURVIVING CORPORATION AND THE EFFECTIVE DATE. FSC Sub
shall be merged with and into FSB to form a single national banking association
on the Effective Date (as defined below) of the Merger and FSB shall continue in
existence as the banking association surviving the Merger. FSB shall continue
to be governed by the laws of the United States and to conduct the business of a
bank at its main office located in Ogden, Utah, and at all legally established
branches. The "EFFECTIVE DATE" of the Merger shall be the date established by
Office of the Comptroller of the Currency under its regulations and procedures.
Appropriate instruments will be filed with the Utah Department of Financial
Institutions as applicable.
3. PLAN OF MERGER. The Plan of Merger is as follows:
3.1. ARTICLES OF ASSOCIATION AND BYLAWS OF THE SURVIVING ASSOCIATION.
FSB, as the surviving association, shall continue to use the Articles of
Association and Bylaws of FSB as in effect immediately prior to the Effective
Date of the Merger. Said Articles of Association and Bylaws shall continue in
effect as the Articles of Association and Bylaws of FSB unless and until amended
or repealed in the manner provided by law and by said Articles of Association
and Bylaws.
3.2. BOARD OF DIRECTORS AND OFFICERS OF THE SURVIVING CORPORATION.
The Board of Directors and the officers of FSB as of the Effective Date of the
Merger shall be those persons who are identified as directors and officers of
FSB in Schedule A attached hereto and incorporated herein, and such persons
shall continue to hold office until their successors are duly elected and
qualified.
3.3. TREATMENT OF FSB SHARES. At the Effective Date of the Merger,
the issued and outstanding shares of FSB Common Stock held by FSC shall retain
their present rights and shall be unchanged by the Merger. Each other share of
FSB Common Stock which is outstanding immediately prior to the Effective Date,
other than shares as to which dissenters' rights are perfected, and all rights
in respect thereof, shall be converted, IPSO FACTO, and without any action on
the part of the holder thereof, into the right to receive 36.876 shares of FSC
Common Stock.
3.4. SHARES OF FSC SUB. Each share of FSC Sub Common Stock shall, at
the Effective Time of the Merger, be cancelled.
3.5. SURRENDER OF CERTIFICATES. After the Effective Date, each holder
of shares of FSB Common Stock outstanding immediately prior to the Effective
Date (other than shares held by FSC or shares as to which dissenters' rights
have been perfected) shall, upon surrender for cancellation of a certificate or
certificates representing such shares to FSB or its agent designated for such
purpose, be entitled to receive a certificate or certificates representing the
number of shares of FSC Common Stock into which such shares of FSB Common Stock
shall have been converted pursuant to the provisions set forth herein. Until so
surrendered, the certificates which prior to the Merger represented shares of
FSB Common Stock shall be deemed for all corporate purposes to evidence
ownership of the shares of FSC Common Stock into which such shares of FSB Common
Stock shall have been converted; provided, however, that no dividends with
respect to shares of FSB Common Stock shall be paid until the holder shall have
surrendered such certificates, at which time the holder shall be paid the amount
of dividends, if any, without interest, which shall theretofore have become
payable with respect to the shares of FSC Common Stock into which such shares of
FSB Common Stock shall have been converted.
No fractional shares of FSC Common Stock shall be issued in or as a
result of the Merger. In lieu of any such fractional shares, as a mere
mechanical rounding off for accounting purposes, each holder of shares of FSB
Common Stock who would otherwise have been entitled to a fraction of a share of
FSC Common Stock upon surrender of stock certificates as provided in this
Section 3.5 will, upon such surrender, be paid an amount of cash (without
interest) determined by multiplying (a) the average of the daily closing prices
of a share of FSC Common Stock as reported on the NASDAQ Market during the
period of five (5) consecutive trading days ending at the end of the third
trading day immediately preceding the Effective Date, by (b) the fractional
share interest in FSC Common Stock to which the holder would otherwise be
entitled.
3.6. TRANSFER OF ASSETS AND LIABILITIES. On the Effective Date of the
Merger, FSC Sub and FSB shall become one association, which shall be FSB, the
surviving association, and the separate existence of FSC Sub shall cease, except
insofar as continued by statute. FSB shall possess all the rights, privileges,
powers, franchises and immunities, of a public as well as of a private nature,
and be subject to all of the restrictions, disabilities and duties, of each of
FSC Sub and FSB. All property, real, personal and mixed, of each of FSC Sub and
FSB, and all debts due on whatever account to each of them, including
subscriptions, if any, for shares, and all other things in action belonging to
each of FSC Sub and FSB, shall be taken and be deemed to be transferred to and
vested in, or shall continue to be vested in, FSB, without further act or deed.
FSB shall thenceforth be responsible for all liabilities and obligations of FSC
Sub and FSB in the same manner as if FSB had itself incurred such liabilities
and obligations. The liabilities of FSC Sub and FSB and of their shareholders,
directors and officers, the rights of creditors or of any other persons dealing
with FSC Sub or FSB, and any liens upon the property of FSC Sub or FSB (limited
to the property subject thereto immediately prior to the Effective Date of the
Merger) shall not be affected or impaired by the Merger. Any claim existing or
action or proceeding pending by or against either FSC Sub or FSB may be
prosecuted to judgment as if the Merger had not taken place, or FSB may be
proceeded against or be substituted in its place.
The parties hereto agree that from time to time and as and when
requested by FSB, or by its successors or assigns, and to the extent permitted
by law, the former officers and directors of FSC Sub and the officers and
directors of FSB are fully authorized, in the name of FSC Sub or otherwise, to
execute and deliver all such deeds, assignments, confirmations, assurances and
other instruments and to take or cause to be taken all such further action as
FSB may deem
necessary or desirable in order to vest, perfect, confirm in or assure FSB
title to and possession of all of said property, rights, privileges, powers,
franchises and immunities and otherwise to carry out the intent and purposes of
this Agreement.
3.7. TAX CONSEQUENCES. It is the intention of the parties hereto that
the Merger shall constitute a tax-free reorganization within the meaning of
Section 368(a) of the Internal Revenue Code of 1986, as amended, (the "CODE"),
and that this Agreement shall constitute a "PLAN OF REORGANIZATION" for purposes
of Section 368 of the Code. The parties believe that the Merger will qualify in
substance to be treated as a tax-free reorganization under Code Section
368(a)(1)(B).
4. REPRESENTATIONS.
4.1. REPRESENTATIONS AND WARRANTIES OF FSC AND FSC SUB. FSC, for
itself and on behalf of FSC Sub, represents, warrants, covenants and agrees
that: (i) FSC is duly organized and validly existing in good standing under the
laws of Delaware and that FSC Sub shall be organized as an interim national bank
and shall be duly organized and in good standing under the laws of the United
States prior to the Merger; (ii) it has all right, power and authority to
conduct its business as now being conducted; (iii) this Agreement has been duly
authorized by the Executive Committee of FSC and will have been approved by the
Board of Directors of FSC Sub prior to the Merger; and (iv) FSC will own, upon
organization, all of the outstanding shares of capital stock of FSC Sub and will
vote these shares in favor of the Merger.
4.2. REPRESENTATIONS AND WARRANTIES OF FSB. FSB represents, warrants,
covenants and agrees that: (i) FSB is a national bank, duly organized and in
good standing under the laws of the United States, and has all right, power and
authority to conduct its business; and (ii) this Agreement has been duly
authorized by its Board of Directors.
5. CORPORATE APPROVAL.
5.1. SHAREHOLDER APPROVALS. The Merger contemplated hereby will be
submitted for approval by the shareholders of FSB and FSC Sub in accordance with
applicable statutes and regulations. FSC owns in excess of 99.9% of the
outstanding shares of FSB and will vote the shares of FSB in favor of the
Merger. FSC will own all of the shares of FSC Sub and will vote the shares of
FSC Sub in favor of the Merger.
6. CONDITIONS TO CLOSING.
6.1. ORGANIZATION OF FSC SUB. FSC Sub shall have been duly organized
under the laws of the United States.
6.2. REGULATORY APPROVALS AND FILINGS. The proposed Merger may not be
consummated until the OCC has approved the Merger by appropriate order, and the
appropriate filing requirements have been satisfied. FSB and FSC shall
immediately proceed to file an application with the OCC seeking approval of the
transactions contemplated hereby, a copy of which shall be submitted to the Utah
Department of Financial Institutions, if applicable or if required, and FSB, FSC
and FSC Sub shall otherwise comply with all other federal and state laws
regulating this transaction.
6.3. SHAREHOLDER APPROVAL. Not less than two-thirds (2/3) of each of
FSC and FSC Sub shall have approved this Agreement and the Merger contemplated
hereby. FSC, as the sole shareholder of FSC Sub and as the holder of in excess
of 99.9% of the Common Stock of FSB, shall have approved, ratified and confirmed
this Agreement.
6.4. REGISTRATION OF SHARES. With respect to the FSC Common stock
which is to be issued hereunder, FSC shall use its best efforts to cause a
Registration Statement on Form S-3 or other appropriate form to be filed with
the Securities and Exchange Commission (the "SEC") within one hundred twenty
(120) days of the Effective Time and shall maintain the effectiveness of such
registration for a period measured by the shorter of (a) twelve (12) months from
and after the effectiveness of the registration under the Securities Act of
1933, as amended (the "1933 ACT") and (b) the holding period specified in Rule
144 under the 1933 Act, as amended from time to time, for the release of all
restrictions and requirements of Rule 144 (for example, as currently provided in
Rule 144(b) under the 1933 Act). The Registration Statement, at the time it
becomes effective and during the effectiveness period, shall in all material
respects conform to the requirements of the 1933 Act and the General Rules and
Regulations of the SEC under the 1933 Act (the "1933 RULES"). FSC will notify
the shareholders of the date of filing the Registration Statement and will
provide copies of the Registration Statement as filed, together with all
amendments, to the shareholders on a timely basis. Upon the effectiveness of
the Registration Statement, FSC will provide the shareholders with five (5)
copies of a "resale prospectus" for use in selling shares through the
Registration Statement. The FSC Common Stock to be issued by FSC in connection
with the Merger, as of the Effective Time, shall be duly qualified or exempted,
as the case may be, under applicable federal and state Blue Sky securities laws.
6.5. NO ACTION OR PROCEEDING. Unless waived by the parties hereto,
the proposed Merger may not be consummated if there shall have been instituted
any litigation, regulatory proceeding or other matter which challenges the
legality or effectiveness of the transactions contemplated hereby or seeks an
order, decree or injunction enjoining or prohibiting the consummation of the
Merger.
7. CLOSING. The parties shall cause their authorized representatives to
hold a meeting (the "CLOSING") at the corporate offices of FSC, at such time and
date as the parties may stipulate in writing and consistent with the
satisfaction of the conditions to Closing of Section 6 hereof (the "CLOSING
DATE"). At the Closing, each party shall execute and deliver to the other
parties the documents and other materials necessary to satisfy any conditions
precedent to the obligation of the other parties to consummate the Merger, and
if all such conditions have been met or waived, then the parties shall execute
such documents, if any, as may be necessary to comply with appropriate federal
and state agencies.
8. TERMINATION.
8.1. TERMINATION. Anything herein or elsewhere to the contrary
notwithstanding, this Agreement may be terminated and abandoned at any time
prior to the Effective Date of the Merger:
(a) By mutual consent of the Board of Directors of FSC Sub and
the Board of Directors of FSB; or
(b) By either the Board of Directors of FSC Sub or the Board of
Directors of FSB at any time after the expiration of twelve (12) months
from the date hereof, if the Merger shall not theretofore have been
consummated by the failure to satisfy the conditions to Closing not within
the control of the electing party; or
(c) By FSB upon written notice to FSC Sub at any time if any
representation or warranty of FSC Sub contained in this Agreement was
materially incorrect when made or becomes materially incorrect on or prior
to the Closing Date, or if FSC Sub fails to comply with any of its
covenants contained in this Agreement, and the same is not cured within
thirty (30) days after notice of such inaccuracy or noncompliance; or
(d) By FSC Sub upon written notice to FSB at any time if any
representation or warranty of FSB contained in this Agreement was
materially incorrect when made or becomes materially incorrect on or prior
to the Closing Date, or if FSB fails to comply with any of its covenants
contained in this Agreement, and the same is not cured within thirty (30)
days after notice of such inaccuracy or noncompliance.
8.2. EFFECT OF TERMINATION. In the event of the termination and
abandonment hereof pursuant to the provisions of Section 8.1, this Agreement
shall become void and have no force or effect. Such termination shall not
relieve any party of liability for any default prior to such termination.
9. MISCELLANEOUS.
9.1. NOTICES. Any notices or other communication required or
permitted hereunder shall be sufficiently given if made by personal delivery, by
confirmed air courier or sent by registered or certified mail, return receipt
requested, postage prepaid, addressed as follows:
If to FSB:
First Security Bank, N.A.
00 Xx. Xxxx Xxxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Attn: Xxxxx Xxxxxx, Chairman
With a copy to:
First Security Corporation
00 Xx. Xxxx Xxxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Attn: Xxxx X. Xxxxx, Esq., Executive
Vice President and General Counsel
With a copy to:
Xxxxxx X. Xxxxxxxx, Esq.
Ray, Xxxxxxx & Xxxxxxx
00 Xxxxx Xxxx Xxxxxx
X.X. Xxx 00000
Xxxx Xxxx Xxxx, Xxxx 00000-0000
If to FSC or FSC Sub:
First Security Corporation
00 Xx. Xxxx Xxxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Attn: Xxxx X. Xxxxx, Esq., Executive
Vice President and General Counsel
With a copy to:
Xxxxxx X. Xxxxxxxx, Esq.
Ray, Xxxxxxx & Xxxxxxx
00 Xxxxx Xxxx Xxxxxx
X.X. Xxx 00000
Xxxx Xxxx Xxxx, Xxxx 00000-0000
or to such other addresses as shall be furnished in writing by any party. If
sent by air courier, or by certified or registered mail, such notice or
communication shall be deemed to have been given upon the earlier to occur of
the date upon which it is actually received by the addressee or the business day
upon which delivery is made at such address as confirmed by the air courier or
the United State Post Office.
9.2. BINDING AGREEMENT. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective heirs,
successors and assigns. This Agreement may not be assigned except with the
prior written consent of the other parties hereto.
9.3. ENTIRE AGREEMENT. This instrument contains the entire Agreement
between the parties with respect to the transactions contemplated herein and
supersedes all previous written or oral negotiations, commitments and writings
and cannot be altered or otherwise amended except pursuant to an instrument in
writing signed by each of the parties hereto.
9.4. HEADINGS. The headings in the sections of this Agreement are
inserted for convenience only and shall not constitute a part hereof.
9.5. COUNTERPARTS. This Agreement may be executed and delivered in
any number of counterparts and each shall be considered an original and together
they shall constitute one agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed as of the date above recited.
FIRST SECURITY CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------
Xxxxxxx X. Xxxxxx, Chairman
and Chief Executive Officer
FIRST SECURITY BANK, N.A.
By: /s/ L. Xxxxx Xxxxxx
----------------------------------
L. Xxxxx Xxxxxx, Chairman
FIRST SECURITY INTERIM SUB, N.A.
By: FIRST SECURITY CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxx, Chairman
and Chief Executive Officer
