EXHIBIT 2.1
EXECUTION COPY
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (this
"Agreement"), dated as of October 19, 1999, is made by and among
GOLD BANC CORPORATION, INC., a Kansas corporation ("Gold Banc"),
and FIRST BUSINESS BANCSHARES OF KANSAS CITY, INC., a Missouri
corporation ("Company").
RECITALS
A. The Boards of Directors of Gold Banc and the
Company have approved and deem it advisable and in the best
interests of their respective companies and shareholders that
Gold Banc and the Company become affiliated through the merger of
the Company with and into Gold Banc in the manner hereinafter set
forth (the "Merger" or the "Company Merger").
B. The Company owns approximately 86% of the First
Business Bank of Kansas City, N.A. (the "Bank").
C. Gold Bank, N.A. ("Gold Bank") is a wholly-owned
subsidiary of Gold Banc.
D. In connection herewith, Gold Bank and the Bank
will enter into a Bank Merger Agreement, substantially in the
form attached hereto as Exhibit A (the "Bank Merger Agreement"),
pursuant to which the Bank will be merged into Gold Bank (the
"Bank Merger").
E. The parties desire to make certain
representations, warranties and agreements in connection with the
Merger and the Bank Merger and also to prescribe certain
conditions to the Merger and the Bank Merger.
AGREEMENT
ACCORDINGLY, in consideration of the premises, the
mutual covenants and agreements set forth herein and other good
and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Defined Terms. As used in this
Agreement, the following terms have the following meanings:
"401(k) Plan" shall have the meaning set forth in
Section 5.16 hereof.
"Acquisition Proposal" means any proposal for a tender
or exchange offer, a merger, consolidation or other business
combination, recapitalization, liquidation, dissolution or
similar transaction involving the Company or the Bank, or any
proposal or offer to acquire in any manner, directly or
indirectly, a material equity interest in, or a material amount
of voting securities of (with the acquisition of beneficial
ownership of 15% or more of the Company's or the Bank's voting
securities being deemed to be material for this purpose), or,
outside the ordinary course of business, any sale of a
significant amount of assets of, the Company or the Bank, or
similar transactions involving the Company or the Bank, other
than the Merger or the Bank Merger.
"Action" means any action, suit, claim, demand,
petition, arbitration, inquiry, proceeding or investigation by or
before any Governmental Entity or arbitrator.
"Affiliates" shall have the meaning set forth in
Section 10.4 hereof.
"Affiliate Letter" shall have the meaning set forth in
Section 8.8 hereof.
"Agreement" means this Agreement and Plan of
Reorganization, together with the Schedules and Exhibits hereto.
"Average Gold Banc Stock Price" means the average of
the closing sales price of Gold Banc Common Stock as reported by
Nasdaq on each of the ten consecutive trading days immediately
preceding the third trading day prior to the Effective Time.
"Bank" means First Business Bank of Kansas City, N.A.,
a national banking association, and its successors and assigns.
"Bank Common Stock" means the common stock, par value
$10.00 per share, of the Bank.
"Bank Merger" shall have the meaning set forth in the
Recitals hereof.
"Bank Merger Agreement" shall have the meaning set
forth in the Recitals hereof.
"Bank Merger Effective Time" shall have the meaning set
forth in Section 2.13 hereof.
"BHC Act" means the Banking Holding Company Act of
1956, as amended, and the regulations promulgated pursuant
thereto.
"Business Day" means a day other than Saturday, Sunday
or another day on which commercial banks in Missouri are
authorized or required by law to close.
"Closing" means the consummation of the transactions
contemplated hereby.
"Closing Date" shall have the meaning set forth in
Section 2.2 hereof.
"Code" means the Internal Revenue Code of 1986, as
amended, and the regulations promulgated pursuant thereunder.
"Company" means First Business Bancshares of Kansas
City, Inc., a Missouri corporation, and its successors and
assigns.
"Company Common Stock" means the common stock, par
value $1.00 per share, of the Company.
"Company Confidential Information" shall have the
meaning set forth in Section 6.6 hereof.
"Company Convertible Debentures" means the $5,000.00,
floating rate, convertible debentures, due January 31, 2000,
issued by the Company, as amended from time to time.
"Company Dissenting Shares" shall have the meaning set
forth in Section 2.8 hereof.
"Company Financial Statements" shall have the meaning
set forth in Section 3.6 hereof.
"Company Merger" shall have the meaning set forth in
the Recitals hereof.
"Company Plans" shall have the meaning set forth in
Section 3.15 hereof.
"Company Stock Options" shall have the meaning set
forth in Section 3.2(a) hereof.
"Company's Accountants" means Xxxxx, Xxxxx & Xxxxxx.
"Company's Counsel" means Spencer, Fane, Xxxxx & Xxxxxx
LLP.
"Consent" means a consent, approval, authorization,
waiver or notification from any Person or Governmental Entity.
"Contract" means any contract, agreement, mortgage,
deed of trust, indenture, instrument, promissory note, lease,
license, or other legally binding commitment or arrangement.
"Damages" means all losses, claims, damages, costs,
fines, penalties, obligations, judgments, payments, liabilities,
deficiencies and diminutions in value (including those arising
out of any Action), together with all reasonable costs and
expenses (including reasonable outside attorneys' fees and
reasonable out-of-pocket expenses) incurred in connection with
any of the foregoing.
"Effective Time" shall have the meaning set forth in
Section 2.2 hereof.
"Exchange Act" means the Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated
thereunder as in effect at the applicable time.
"Exchange Agents" shall have the meaning set forth in
Section 2.9(a) hereof.
"Exchange Ratio" shall have the meaning set forth in
Section 2.7(b) hereof.
"ERISA" means the Employee Retirement Income Security
Act of 1974, as amended, and the regulations promulgated pursuant
thereto.
"GAAP" means United States generally accepted
accounting principles, applied on a basis consistent with prior
periods, as in effect from time to time. All references herein
to financial statements prepared in accordance with GAAP shall
mean in accordance with GAAP consistently applied throughout the
period to which reference is made.
"Gold Banc" means Gold Banc Corporation, Inc., a Kansas
corporation, and its successors and assigns.
"Gold Banc's Accountants" means KPMG LLC.
"Gold Banc Common Stock" means the common stock, par
value $1.00 per share, of Gold Banc.
"Gold Banc Confidential Information" shall have the
meaning set forth in Section 5.15 hereof.
"Gold Banc Preferred Stock" means the preferred stock,
no par value per share, of Gold Banc.
"Gold Banc SEC Documents" shall have the meaning set
forth in Section 4.7 hereof.
"Gold Banc's Counsel" means Xxxxxxx, Mag & Fizzell,
P.C.
"Gold Bank" means Gold Bank, N.A., a national banking
association, and its successors and assigns.
"Gold Bank Common Stock" means the common stock, par
value $100.00 per share, of Gold Bank.
"Governmental Entity" means any federal, state or local
government, any of its subdivisions, agencies, authorities,
commissions, boards or bureaus, and any federal, state or local
court or tribunal.
"IRS" means the United States Internal Revenue Service.
"Investment Advisor Opinion" shall have the meaning set
forth in Section 3.25 hereof.
"KGCC" means the Kansas General Corporation Code, as
amended from time to time.
"Knowledge" means the actual knowledge of a Person,
without any duty to investigate or conduct due diligence, unless
the Person has information that would prompt a reasonable Person
to conduct an investigation or due diligence into such matter.
"Laws" means any federal, state, local, municipal or
other constitution, statute, rule, regulation or ordinance or
common law of any state.
"Lease" means any Real Property Lease or Personal
Property Lease.
"Leased Facilities" shall have the meaning set forth in
Section 3.11(a) hereof.
"Leased Personal Property" shall have the meaning set
forth in Section 3.11(b) hereof.
"License" means any permit, license, variance,
exemption, order, franchise or approval from any Person or
Governmental Entity.
"Lien" means any lien, mortgage, deed of trust,
security interest, charge, claim, imposition, community property
interest, option, pledge, right of first refusal, retention of
title agreement, easement, encroachment, condition, reservation,
covenant or other encumbrance affecting title or the use, benefit
or value of the asset in question, including without limitation
any restriction on transfer, receipt of income or any other
attribute of ownership.
"MBCL" means The General and Business Corporation law
of Missouri, as amended from time to time.
"Material Adverse Effect" or "Material Adverse Change"
with respect to a party shall mean an event, change, or
occurrence which, individually or together with any other event,
change, or occurrence, has a material adverse effect on (i) the
business, properties, financial position, or results of
operations of a party and its subsidiaries, taken as a whole, or
(ii) the ability of such party to perform its obligations under
this Agreement or to consummate the Merger or the transactions
contemplated by this Agreement; provided, however, that a
Material Adverse Effect or Material Adverse Change shall not
include (a) changes in banking and similar Laws of general
application, or interpretations thereof by Governmental Entities,
(b) changes in GAAP or regulatory accounting principles generally
applicable to banks or bank holding companies, (c) actions or
omissions of a party (or its subsidiaries) taken with the prior
informed consent of the other party in contemplation of the
transactions contemplated by this Agreement, (d) circumstances
affecting Missouri or Kansas based or regional banks generally,
and (e) the Merger and compliance with the provisions of this
Agreement on the operating performance of the Company or Gold
Banc.
"Merger" shall have the meaning set forth in the
Recitals hereof.
"Nasdaq" means the Nasdaq National Market System.
"Order" means any order, judgment, injunction, decree,
determination or award of any Governmental Entity or arbitrator.
"Person" means any natural person, corporation,
partnership, joint venture association, joint-stock company,
limited liability company, trust, unincorporated organization,
governments, any agency or political subdivision thereof or any
other legal entity.
"Personal Property Leases" shall have the meaning set
forth in Section 3.11(b) hereof.
"Pooling Letter" shall have the meaning set forth in
Section 5.12(b) hereof.
"Proxy Statement" shall have the meaning set forth in
Section 10.1 hereof.
"Real Property Leases" shall have the meaning set forth
in Section 3.11(a) hereof.
"Registration Statement" shall have the meaning set
forth in Section 10.1 hereof.
"SEC" means the United States Securities and Exchange
Commission and the staff thereof.
"Securities Act" means the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder as
in effect at the applicable time.
"Surviving Corporation" shall have the meaning set
forth in Section 2.1 hereof.
"Total Equity Capital" means, with respect to any
Person, the sum of outstanding capital stock, paid in capital,
retained earnings and current earnings year to date, all
determined in accordance with GAAP, excluding FAS 115
adjustments.
"Year 2000 Problem" means the risk that computer
applications used by the applicable Person may be unable to
recognize and properly perform date sensitive functions involving
certain dates prior to and any date after December 31, 1999.
"Year 2000 Compliant" means the ability to perform date
sensitive functions for all dates before and after January 1,
2000.
Section 1.2 Construction.
(a) Unless the context otherwise requires or
unless otherwise provided herein the terms defined in
this Agreement which refer to a particular agreement,
instrument or document also refer to and include all
renewals, extensions, modifications, amendments, and
restatements of such agreement, instrument or document.
(b) As used in this Agreement, accounting terms
not defined in Section 1.1, and accounting terms partly
defined in Section 1.1 to the extent not defined, shall
have the respective meanings given to them under GAAP.
(c) 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 of this Agreement. Section,
subsection, schedule and exhibit references are to this
Agreement unless otherwise specified. Whenever an item
or items are listed after the word "including," such
listing is not intended to be a listing that excludes
items not listed.
(d) Words of the masculine gender shall be deemed
and construed to include correlative words of the
feminine and neuter genders. Unless the context shall
otherwise indicate, words importing the singular number
shall include the plural and vice versa.
ARTICLE II
THE COMPANY MERGER
Section 2.1 The Merger. Upon the terms and subject
to the conditions of this Agreement and in accordance with the
MBCL, at the Effective Time, the Company shall be merged with and
into Gold Banc and the separate existence and corporate
organization of the Company shall thereupon cease and the
Company and Gold Banc shall thereupon be a single corporation.
Gold Banc shall be the surviving corporation in the Merger (the
"Surviving Corporation") and the separate corporate existence of
Gold Banc shall continue unaffected and unimpaired by the Merger.
Section 2.2 Effective Time of the Merger; Closing.
On the Closing Date, the proper officers of the Company and Gold
Banc shall execute and acknowledge appropriate certificates of
merger that shall be filed with the Kansas Secretary of State and
the Missouri Secretary of State on the first Business Day
following the Closing Date, all in accordance with the KGCC and
the MBCL. The Merger shall become effective on the date that the
certificates of merger have been filed with the Kansas Secretary
of State and the Missouri Secretary of State in accordance with
the KGCC and the MBCL (the "Effective Time"). The Closing shall
be on a day (the "Closing Date") occurring not later than ten
(10) days following the satisfaction or waiver, to the extent
permitted hereunder, of the last of the conditions to the
consummation of the Merger specified in Article VII and Article
VIII of this Agreement at 10:00 a.m. at the office of Gold Banc,
00000 Xxxx Xxxxxx, Xxxxxxx, Xxxxxx 00000, which day shall be
specified by notice from Gold Banc to the Company (such notice to
be at least five (5) days in advance of such Closing Date), or on
such other date and at such other place and time as the parties
hereto may mutually agree.
Section 2.3 Articles of Incorporation, Bylaws,
Directors and Officers.
(a) The Articles of Incorporation and Bylaws of
Gold Banc as in effect immediately prior to the
Effective Time shall be and remain the Articles of
Incorporation and Bylaws of the Surviving Corporation
from and after the Effective Time until amended as
provided by Law.
(b) The officers and directors of Gold Banc shall
continue as the officers and directors of the Surviving
Corporation from and after the Effective Time, subject
to the Bylaws of the Surviving Corporation and
applicable Laws.
Section 2.4 Effect of Merger. From and after the
Effective Time, the Merger shall have the effects on the Company
and Gold Banc set forth in Section 351.450 of the MBCL and
Section 17-6709 of the KGCC.
Section 2.5 Taking Necessary Action; Further
Assurances. Gold Banc and the Company, respectively, each shall
use its reasonable efforts to take all such action as may be
necessary or appropriate to effectuate the Merger under the KGCC
and the MBCL at the time specified in Section 2.2 hereof. If at
any time after the Effective Time, Gold Banc shall consider it
advisable that any further conveyances, agreements, documents,
instruments or assurances of law or other actions or things are
necessary or desirable to vest, perfect, confirm or record in
Gold Banc the title to any property, rights, privileges, powers,
or franchises of the Company, the former Board of Directors and
officers of the Company shall, and will be authorized to, execute
and deliver in the name and on behalf of the Company or
otherwise, any and all proper conveyances, agreements, documents,
instruments, and assurances of law and do all things necessary or
proper to vest, perfect, or confirm title to such property,
rights, privileges, powers and franchises in Gold Banc, and
otherwise to carry out the provisions of this Agreement.
Section 2.6 Effect of Merger on Gold Banc Common
Stock. At the Effective Time, by virtue of the Merger and
without any action on the part of any holder thereof, each share
of common stock, $1.00 par value per share, of Gold Banc Common
Stock issued and outstanding immediately prior to the Effective
Time shall remain issued and outstanding, and shall be unaffected
by the Merger.
Section 2.7 Effect of Merger on Company Common
Stock. At the Effective Time, by virtue of the Merger and
without any action on the part of any holder thereof:
(a) Each share of Company Common Stock that is
either authorized but unissued or held in the treasury
of the Company, if any, or held by the Company or any
Subsidiary other than as trustee, fiduciary, nominee or
some similar capacity shall be canceled and retired and
shall cease to exist from and after the Effective Time,
and no cash or other consideration shall be delivered
in exchange therefor.
(b) Each outstanding share of Company Common
Stock (excluding Company Dissenting Shares as defined
in Section 2.8 hereof), of which 168,441 shares are
currently issued and outstanding as of the date hereof
(and of which up to 55,132 additional shares may be
issued and outstanding upon conversion of the Company
Convertible Debentures prior to the Closing Date),
shall be converted into the number of shares (the
"Exchange Ratio") of Gold Banc Common Stock determined
by dividing $109.7906 by the Average Gold Banc Stock
Price, with the Exchange Ratio being rounded to four
decimal places. Notwithstanding the foregoing, (i) if
the Average Gold Banc Stock Price is at or above $13.50
per share, then the Exchange Ratio shall be 8.1326, and
(ii) if the Average Gold Banc Stock Price is at or
below $11.00 per share, then the Exchange Ratio shall
be 9.9810. Fractions of shares determined pursuant to
this Section 2.7(b) shall be rounded to three decimal
places.
If the Average Gold Banc Stock Price is less than $10.50, then
Gold Banc and the Company shall in good faith attempt to
negotiate a mutually acceptable revised Exchange Ratio.
Section 2.8 Dissenting Shares. Notwithstanding
anything to the contrary contained in this Agreement, to the
extent appraisal rights are available to the Company's
shareholders pursuant to the MBCL, any shares of Company Common
Stock held by a person who objects to the Merger, whose shares of
Company Common Stock were not entitled to vote or were not voted
in favor of the Merger and who complies with all of the
provisions of the MBCL concerning the rights of such person
to dissent from the Merger and to require appraisal of such
person's shares of Company Common Stock and who has not withdrawn
such objection or waived such rights prior to the Closing Date
("Company Dissenting Shares") shall not be converted pursuant to
Section 2.7 but shall become the right to receive such
consideration as may be determined to be due to the holder of
such Company Dissenting Shares pursuant to the MBCL, including,
if applicable, any costs determined to be payable by Gold Banc or
the Company to the holders of the Company Dissenting Shares
pursuant to an order of the district court in accordance with the
MBCL. Notwithstanding the foregoing, as set forth hereinafter,
the obligation of Gold Banc to close on this transaction is
contingent upon the Company Dissenting Shares constituting not
more than 5% of the outstanding shares of Company Common Stock on
the Closing Date.
Section 2.9 Exchange of Certificates.
(a) Gold Banc shall make available to Midwest
Capital Management, Inc. and Gold Bank, which are
hereby designated as the exchange agents (the "Exchange
Agents"), at and after the Effective Time, such number
of shares of Gold Banc Common Stock as shall be
issuable to the holders of Company Common Stock in
accordance with Section 2.7 hereof. As soon as
practicable after the Closing Date, Gold Banc, on
behalf of the Exchange Agents, shall mail to each
holder of record of a certificate that immediately
prior to the Closing Date represented outstanding
shares of Company Common Stock (i) a form letter of
transmittal and (ii) instructions for effecting the
surrender of certificates of Company Common Stock for
exchange into certificates of Gold Banc Common Stock.
The Gold Banc Common Stock into which the Company
Common Stock is being converted in accordance with
Section 2.7 hereof shall be delivered to each
shareholder of the Company as set forth in a letter of
transmittal. Notwithstanding the foregoing, the
Company will use commercially reasonable efforts to
have available at Closing as many Company Common Stock
certificates as possible and Gold Banc will make
available to the Company and its shareholders as many
letters of transmittal and instructions for
surrendering the Company Common Stock as requested.
(b) Notwithstanding any other provision herein,
no fractional shares of Gold Banc Common Stock and no
certificates or scrip therefor or other evidence of
ownership thereof will be issued. All fractional
shares of Gold Banc Common Stock to which a holder of
Company Common Stock would otherwise be entitled to
under Section 2.7 hereof shall be aggregated. If a
fractional share results from such aggregation, such
shareholder shall be entitled, after the Effective Time
and upon the surrender of such shareholder's
certificate or certificates representing shares of
Company Common Stock, to receive from the Exchange
Agents an amount in cash in lieu of such fractional
share equal to the product of such fraction and the
Average Gold Banc Stock Price. Gold Banc shall make
available to the Exchange Agents, as required
from time to time, any cash necessary for this purpose.
Section 2.10 Closing of the Company Transfer Books.
At the Effective Time, the stock transfer books of the Company
shall be closed and no transfer of Company Common Stock shall
thereafter be made.
Section 2.11 Dividends. No dividends or other
distributions that are declared after the Effective Time with
respect to Gold Banc Common Stock payable to holders of record
thereof after the Effective Time shall be paid to the Company
shareholders entitled to receive certificates representing Gold
Banc Common Stock until such shareholders surrender to the
Exchange Agents their certificates representing Company Common
Stock. Upon such surrender, there shall be paid to the
shareholder in whose name the certificates representing such Gold
Banc Common Stock shall be issued any dividends which shall have
become payable with respect to such Gold Banc Common Stock
between the Effective Time and the time of such surrender,
without interest. After such surrender there shall also be paid
to the shareholder in whose name the certificates representing
such Gold Banc Common Stock shall be issued any dividend on such
Gold Banc Common Stock that shall have (a) a record date
subsequent to the Effective Time and prior to such surrender and
(b) a payment date after such surrender, and such payment shall
be made on such payment date. In no event shall the
shareholders entitled to receive such dividends be entitled to
receive interest on such dividends.
Section 2.12 Shareholders Approval.
(a) The Company agrees to submit this Agreement
and the transactions contemplated hereby to its
shareholders for approval to the extent required and as
provided by law, and the Articles of Incorporation and
Bylaws of the Company and in accordance with Section
10.1 hereof. The Company shall use its reasonable
best efforts to take all steps as shall be required for
the shareholders' meeting to obtain such approval to be
held as soon as reasonably practicable after the
effective date of the Registration Statement. Subject
to the exercise of the fiduciary duties of the
Company's Board of Directors, the Company shall,
through its Board of Directors, recommend that
the shareholders of the Company approve and adopt this
Agreement and the transactions contemplated hereby and
shall use its reasonable best efforts to secure such
approval.
(b) Gold Banc agrees to submit this Agreement and
the transactions contemplated hereby to its
stockholders for approval to the extent required and as
provided by law, the Articles of Incorporation and
Bylaws of Gold Banc. Gold Banc shall use its
reasonable best efforts to take all steps as shall be
required for the shareholders' meeting to obtain such
approval to be held as soon as reasonably practicable
after the effective date of the Registration Statement.
Subject to the exercise of fiduciary duties by Gold
Banc's Board of Directors, Gold Banc shall, through its
Board of Directors, recommend that the stockholders of
Gold Banc approve and adopt this Agreement and the
transactions contemplated hereby and shall use its
reasonable best efforts to secure such approval.
Section 2.13 The Bank Merger. As soon as practicable
after the execution and delivery of this Agreement, Gold Banc and
the Company shall cause Gold Bank and the Bank, respectively, to
enter into the Bank Merger Agreement, substantially in the form
attached hereto as Exhibit A, pursuant to which the Bank Merger
will be effected. The parties hereto intend that the Bank Merger
shall become effective immediately following the Effective Time
("Bank Merger Effective Time") and shall take all actions
necessary or appropriate to cause the Bank Merger to become
effective at the Bank Merger Effective Time.
Section 2.14 Adjustments. If at any time during the
period between the date hereof and the Effective Time, any change
in the outstanding shares of Gold Banc Common Stock is effected
by reason of any reclassification, recapitalization, stock split
or combination, exchange or readjustment of shares, or any stock
dividend thereon with a record date during such period, the
Exchange Ratio shall be adjusted on a pro rata basis.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby makes the following representations
and warranties to Gold Banc each of which is true and correct on
the date hereof and each of which shall be unaffected by any
investigation heretofore or hereafter made by Gold Banc or its
representatives.
Section 3.1 Organization and Good Standing.
(a) The Company is a corporation duly organized,
validly existing and in good standing under the laws of
the State of Missouri with all requisite corporate
power and authority to own, lease and operate its
properties and conduct its business as it is now being
conducted. The Company is duly registered as a bank
holding company under the BHC Act. The Company has
heretofore made available to Gold Banc complete and
correct copies of its Articles of Incorporation and
Bylaws. The Company is duly qualified and in good
standing in all states where the conduct of its
business so requires except where failure to so qualify
is not reasonably likely to have a Material Adverse
Effect on the Company.
(b) The Bank is a subsidiary of the Company and
is a national banking association duly organized,
validly existing and in good standing under the laws of
the United States, with all requisite corporate power
and authority to own, lease and operate its properties
and conduct its business as it is now being conducted.
The Bank has heretofore made available to Gold Banc and
Gold Bank complete and correct copies of its Charter
and Bylaws. The Bank is duly qualified to do
business in all states in which the conduct of
its business requires such qualification except where
the failure to be so qualified is not reasonably likely
to have a Material Adverse Effect on the Bank.
(c) The Company has no subsidiaries other than
the Bank.
(d) The Bank has no subsidiaries.
Section 3.2 Capital Structure.
(a) The Company. As of the date hereof, the
authorized capital stock of the Company consists only
of 500,000 shares of Company Common Stock of which
168,441 shares are issued and outstanding. All
outstanding shares of Company Common Stock are validly
issued, fully paid and nonassessable and are not
subject to preemptive rights. There are no
outstanding or authorized options, warrants,
agreements, subscriptions, calls, demands or rights of
any character relating to the capital stock of the
Company, whether or not issued, including without
limitation securities convertible into or evidencing
the right to purchase any Company Common Stock or any
other securities of the Company, except for the Company
Convertible Debentures and the options listed on
Schedule 3.2(a)(i) hereto (the "Company Stock
Options"). There are not as of the date hereof and
will not be as of the Effective Time any shareholder
agreements, voting trusts or other agreements or
understandings to which the Company is a party or by
which it is bound relating to the voting of any shares
of the capital stock of the Company which will limit in
any way the solicitation of proxies by or on behalf of
the Company or Gold Banc from, or the casting of votes
by, the shareholders of the Company with respect to the
Merger except for the shareholders' agreement listed on
Schedule 3.2(a)(ii) hereto. As of the date hereof, the
Company has $770,000.00 in aggregate principal amount
of Company Convertible Debentures outstanding. All of
the Company Convertible Debentures are validly issued
and fully paid, are currently convertible, in
accordance with their terms, into shares of nonvoting
common stock of the Company and, upon being amended as
provided in Section 5.20 hereof, will be convertible,
in accordance with their terms, into shares of Company
Common Stock. Except as set forth in the Company
Convertible Debentures, there are no outstanding or
authorized options, warrants, agreements, redemptions,
calls, demands or rights of any character relating to
the Company Convertible Debentures, whether or not
issued, including without limitation securities
convertible into or evidencing the right to purchase
any Company Convertible Debentures.
(b) Bank. The authorized capital stock of the
Bank consists only of 500,000 shares of Bank Common
Stock, par value $10.00 per share, of which 294,913
shares have been validly authorized and issued, and of
which 253,910 shares are owned beneficially and
of record, by the Company, free and clear of all Liens,
except for the Liens set forth on Schedule 3.2(b)
hereof. All outstanding shares of Bank Common Stock
are validly issued, fully paid and nonassessable.
There are no outstanding or authorized options,
warrants, agreements, subscriptions, calls, demands or
rights of any character relating to the capital stock
of the Bank, whether or not issued, including without
limitation securities convertible into or evidencing
the right to purchase any Bank Common Stock or any
other securities of the Bank.
Section 3.3 Authority.
(a) The Company has all requisite corporate power
and authority to enter into this Agreement and all
other agreements to be executed and delivered by the
Company pursuant hereto, and to perform its obligations
hereunder and thereunder, and to consummate the
transactions contemplated hereby and thereby. The
execution and delivery of this Agreement and all other
agreements to be executed and delivered by the Company
pursuant hereto, the performance of the Company's
obligations hereunder and thereunder, and the
consummation of the transactions contemplated hereby
and thereby, have been duly authorized by all necessary
corporate action on the part of the Company. This
Agreement has been, and all other agreements to be
executed and delivered by the Company will be prior to
the Effective Time, duly executed and delivered by the
Company and constitutes, or will constitute, the legal,
valid and binding obligations of the Company,
enforceable against the Company in accordance with
their terms.
(b) The Bank has all requisite corporate power
and authority to enter into the Bank Merger Agreement
and all other agreements to be expected and delivered
by the Bank pursuant thereto and to perform its
obligations thereunder, and to consummate the
transactions contemplated thereby. The execution and
delivery of the Bank Merger Agreement, and all other
agreements to be executed and delivered by the Bank
pursuant thereto, the performance of the Bank's
obligations thereunder, and the consummation of the
transactions contemplated thereby, have been duly
authorized by all necessary corporate actions on the
part of the Bank. The Bank Merger Agreement, and all
other agreements to be executed and delivered by the
Bank, will be duly and validly executed and delivered
by the Bank and will constitute the legal, valid and
binding obligations of the Bank, enforceable against
the Bank in accordance with their terms.
Section 3.4 Shareholder Approval.
(a) The Board of Directors of the Company has
directed or will direct that this Agreement and the
Merger contemplated hereby be submitted to the
Company's shareholders for approval at a meeting of
such shareholders and, except for adoption of
this Agreement by the requisite vote of the Company's
shareholders and termination of the shareholders'
agreement referred to in Schedule 3.2(a)(ii) hereof, no
other shareholder action is necessary to approve this
Agreement and to consummate the Merger contemplated
hereby. The Board of Directors of the Company will
recommend that the Company's shareholders approve this
Agreement and the Merger contemplated hereby, subject
to their fiduciary duties. The affirmative vote of the
holders of two-thirds of the outstanding shares of
Company Common Stock is the only vote of the holders of
any class or series of the Company's capital stock
necessary to approve this Agreement, and to consummate
the Merger and the transactions contemplated hereby.
No approval of a number of outstanding shares of
capital stock of the Company greater than that required
by the relevant statutory provisions is required for
approval of this Agreement and the consummation of the
Merger and the transactions contemplated hereby, except
that the shareholders' agreement referred to in
Schedule 3.2(a)(ii) hereof must be terminated prior to
the Effective Time.
(b) The Board of Directors of the Bank will
direct that the Bank Merger Agreement and the
transaction contemplated thereby be submitted to the
Bank's stockholders for approval and, except for
adoption of the Bank Merger Agreement by the requisite
vote of the Bank's stockholders, no other Bank
stockholder action is necessary to approve the Bank
Merger Agreement and to consummate the transactions
contemplated thereby. The Board of Directors of the
Bank will recommend that the Bank's stockholders
approve the transactions contemplated hereby, subject
to their fiduciary duties. The affirmative vote of the
holders of two-thirds of the outstanding shares of Bank
Common Stock is the only vote of the holders of any
class or series of the Bank's capital stock necessary
to approve the Bank Merger Agreement and to consummate
the transactions contemplated thereby. No approval of
a number of outstanding shares of capital stock of the
Bank greater than that required by the relevant
statutory provisions is required for approval of the
Bank Merger Agreement and the consummation of the
transactions contemplated thereby.
Section 3.5 No Violations.
(a) Except as set forth on Schedule 3.5(a)
hereof, the execution and delivery of this Agreement
and all other agreements to be executed and delivered
by the Company pursuant hereto, the performance of the
Company's obligations hereunder and thereunder, and the
consummation of the transactions contemplated hereby
and thereby, will not conflict with, violate or
constitute a breach or default under (i) the Articles
of Incorporation or Bylaws or other organizational
documents of the Company or the Bank, (ii) any
provision of any Contract, Lien, Order or other
restriction of any kind or character to which the
Company or the Bank is a party, or by which the Company
or the Bank, or any of their assets, is bound, or
(iii) result in the creation or imposition or any Lien
upon the capital stock or the assets of the Company or
the Bank, except, in the case of Sections 3.5(a)(ii)
and (iii), for any such conflict, violation, breach or
default which is not reasonably likely to have a
Material Adverse Effect on the Company or the Bank.
(b) The Company and the Bank are not, to the
knowledge of the Company, currently in violation,
breach or default of, and the consummation of the
transactions contemplated hereby will not cause any
violation, breach or default of, any Laws, Orders,
Licenses or Contracts applicable to the Company or the
Bank, except for any violations, breaches or defaults
that are not reasonably likely to have a Material
Adverse Effect on the Company or the Bank.
(c) All Licenses required or necessary for the
Company or the Bank to carry on their respective
businesses as they are currently conducted have been
obtained and are in full force and effect. The Company
and the Bank are in compliance with all terms of the
Licenses, except where the failure to so comply is not
reasonably likely to have a Material Adverse Effect on
the Company or the Bank.
Section 3.6 Financial Statements. The Company has
previously delivered to Gold Banc audited consolidated balance
sheets for the Company as of December 31, 1998 and December 31,
1997, and audited statements of earnings and changes in financial
position for the years ended December 31, 1998 and December 31,
1997, and all related schedules and notes to the foregoing , and
an unaudited balance sheet, dated July 31, 1999, and statements
of earnings for the period then ended (collectively, the "Company
Financial Statements"). The Company Financial Statements have
been prepared in accordance with GAAP and practices which were
applied on a consistent basis, except as set forth in the notes
therein, and present fairly in all material respects the
financial position, results of operation and changes of financial
position of the Company and the Bank, as applicable, as of their
respective dates and for the periods indicated, except that the
portion of the Company's Financial Statements that pertain to
periods subsequent to December 31, 1998, are subject to normal
year-end adjustments and lack footnotes and other presentation
items. Reserves for the Company's current and deferred federal
and state income tax liabilities have been accrued in accordance
with GAAP. Neither the Company nor the Bank has any material
liabilities or obligations of a type which would be included in a
balance sheet prepared in accordance with GAAP whether related to
tax or non-tax matters, accrued or contingent, due or not yet
due, liquidated or unliquidated, or otherwise, except as and to
the extent disclosed or reflected in the consolidated balance
sheet of the Company as of July 31, 1999, or incurred since July
31, 1999, in the ordinary course of business. From July 31, 1999
until the date hereof, to the Knowledge of the Company, there has
been no Material Adverse Change in the financial condition of the
Company or the Bank, or in the relationship of the Company or the
Bank, with respect to its employees, creditors, suppliers,
distributors, or customers.
Section 3.7 Information Supplied. None of the
information supplied or to be supplied by the Company, in
writing, for inclusion or incorporation by reference in (i) the
Registration Statement will, at the time the Registration
Statement becomes effective under the Securities Act or at the
Effective Time, contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, and
(ii) the Proxy Statement will, at the date mailed to shareholders
of the Company and Gold Banc or at the times of the meetings of
such shareholders to be held in connection with the Merger or at
the Effective Time, contain any untrue statement of a material
fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in
light of the circumstances under which they are made, not
misleading.
Section 3.8 Internal Controls and Records. The
Company and the Bank maintain books of account which accurately
and validly reflect, in all material respects, all loans,
mortgages, collateral and other business transactions and
maintain accounting controls sufficient to ensure that all such
transactions are (i) in all material respects, executed in
accordance with its management's general or specific
authorization, and (ii) recorded in conformity with GAAP.
Section 3.9 Taxes. The Company and the Bank each
have timely filed all tax returns required to be filed by them,
and the Company and the Bank have timely paid and discharged all
taxes due in connection with or with respect to the filing of
such tax returns and have timely paid all other taxes as are due,
except such as are being contested in good faith by appropriate
proceedings and with respect to which the Company or the Bank is
maintaining reserves adequate for their payment except where the
failure to file tax returns or pay taxes is not reasonably likely
to have a Material Adverse Effect on the financial condition of
the Company or the Bank. The liability for taxes set forth on
each such tax return adequately reflects the taxes required to be
reflected on such tax return, except for such taxes which are not
reasonably likely to have a Material Adverse Effect on the
financial condition of the Company or the Bank. To the Knowledge
of the Company, neither the IRS nor any other Governmental Entity
or taxing authority or agency is now asserting, either through
audits, administrative proceedings, court proceedings or
otherwise, or threatening to assert against the Company or the
Bank, any deficiency or claim for additional taxes. Neither the
Company nor the Bank has granted any waiver of any statute of
limitations with respect to, or any extension of a period for the
assessments of, any tax. There are no tax liens on any assets
(excluding other real estate owned properties) of the Company or
the Bank other than Liens for taxes which are not yet delinquent.
To the Knowledge of the Company, neither the Company nor the Bank
has received a ruling or entered into an agreement with the IRS
or any other Governmental Entity or taxing authority or agency
that is reasonably likely to have a Material Adverse Effect on
the Company or the Bank.
Section 3.10 Title to Assets. Except as set forth on
Schedule 3.10(a) hereof, the Company and the Bank have good and
marketable title to and possession of all their respective real
and personal properties and assets, in each case free and clear
of any material Liens, except as reflected on the Company's
consolidated financial statements and except for the Lien of
current taxes, covenants and restrictions of record, and other
minor imperfections of title not affecting marketability,
which Liens do not materially affect the value of such property
and do not interfere with the use made of such property by the
Company or the Bank. Attached hereto as Schedule 3.10(b) is a
complete list of all real property owned or leased by the Company
or the Bank. Neither the Company nor the Bank has entered into
any agreement or commitment to sell any property, real or
personal, or any other assets of the Company or the Bank other
than in the ordinary course of business, nor has the Company nor
the Bank made any commitment or taken or failed to take any
action which would cause any Lien to attach to any property other
than such liens which are not reasonably likely to have a
Material Adverse Effect on the Company or the Bank.
Section 3.11 Leases.
(a) Schedule 3.11(a)(i) hereof contains a list of
all real property leases (the "Real Property Leases")
to which the Company or the Bank is a party, either as
lessor or lessee (the facilities subject to such Real
Property Leases being referred to as the "Leased
Facilities"). Each of the Real Property Leases is in
full force and effect and, to the Knowledge of the
Company, neither the Company nor the Bank, nor any
other party thereto has committed any default
thereunder. Neither the Company nor the Bank is
subject to any increase in rentals or other costs in
connection with any Leased Facility of which the
Company or the Bank is lessee which is not provided for
in the applicable Real Property Lease. Except as set
forth on Schedule 3.11(a)(ii) hereof, no consent is
necessary under the terms of any such Lease in
connection with the consummation of the transactions
contemplated hereby.
(b) Schedule 3.11(b)(i) hereof contains a list of
all Leases with respect to personal property involving
an obligation in excess of $15,000 on an annual basis
or $30,000 in the aggregate (the "Personal Property
Leases") to which the Company or the Bank is a party,
either as lessor or lessee (the personal property
subject to such Personal Property Leases being referred
to as the "Leased Personal Property"). Each of the
Personal Property Leases is in full force and effect
and, to the Knowledge of the Company, neither the
Company nor the Bank nor any other party thereto has
committed any default thereunder. Neither the Company
nor the Bank is subject to any increase in rentals or
other costs in connection with any Leased Personal
Property of which the Company or the Bank is the lessee
which is not provided for in the applicable Personal
Property Lease. Except as set forth on Schedule
3.11(b)(ii) hereof, no Consent is necessary under the
terms of any such Lease in connection with the
consummation of the transactions contemplated hereby.
Section 3.12 Intangible Properties.
(a) To the Knowledge of the Company, none of the
assets of the Company or the Bank is subject to any
patent or patent application, copyright or copyright
application, trademark or trademark application, or
similar evidence of ownership or the right to the use
thereof by any third party.
(b) To the Knowledge of the Company, neither the
Company nor the Bank has infringed any patent or patent
application, copyright or copyright application,
trademark or trademark application or trade name or
other proprietary or intellectual property right of any
other person or received any notice of a claim of such
infringement.
(c) Attached hereto as Schedule 3.12(c) is a true
and accurate list of all patents, copyrights,
trademarks, trade names and service marks, both foreign
and domestic, owned, possessed or used by the Company
and the Bank. To the Knowledge of the Company, the
Company or the Bank own the entire right, title and
interest therein and each thereof is in full force and
effect, except for those the absence of which is not
reasonably likely to have a Material Adverse Effect on
the Company or the Bank.
(d) The Company and the Bank have the right to
use all data and information (including without
limitation confidential information, trade secrets and
know-how) necessary to permit the conduct from and
after the Effective Time of the business of the Company
and the Bank, as such business is and has been normally
conducted.
Section 3.13 Regulatory Filings. The Company and the
Bank have timely filed all notices, reports, registrations and
statements with all Governmental Entities and have paid all fees
and assessments due and payable in connection therewith. Except
for normal examinations and reviews conducted by Governmental
Entities in the regular course of the business of the Company and
the Bank, to the Knowledge of the Company, no Governmental Entity
has initiated any proceeding or investigation into the business
or operations of the Company or the Bank. There is no unresolved
material violation, criticism, or exception by any Governmental
Entity with respect to any written report or statement relating
to any examinations of the Company or the Bank. The Company has
made available to Gold Banc all reports of examinations conducted
by any Governmental Entity with respect to the Company or the
Bank during the preceding three (3) years. The Company will also
make available to Gold Banc any subsequent reports of examination
received from any Governmental Entity between the date hereof and
the Effective Time.
Section 3.14 Insurance. Complete and correct copies
of all material policies of fire, product or other liability,
workers' compensation and other similar forms of insurance owned
or held by the Company and the Bank have been delivered or made
available to Gold Banc. Subject to expirations and
renewals of insurance policies in the ordinary course of
business, all such policies are in full force and effect, all
premiums with respect thereto covering all periods up to and
including the date as of which this representation is being made
have been paid, and no notice of cancellation or termination has
been received with respect to any such policy. The insurance
policies to which the Company and the Bank are parties are
sufficient for compliance with all material requirements of Law
and all material agreements to which the Company or the Bank is a
party, except for any noncompliance that would not have a
Material Adverse Effect on the Company or the Bank, and will be
maintained by the Company and the Bank until the Effective Time.
Neither the Company nor the Bank has been refused any insurance
with respect to any material assets or operations, nor has
coverage been limited in any respect material to their operations
by any insurance carrier to which they have applied for any such
insurance or with which they have carried insurance during the
last five (5) years.
Section 3.15 Compliance with ERISA. Neither the
Company nor the Bank has established, maintained or contributed
at any time during the five-year period ending as of the
Effective Time to any employee benefit plan (as defined in
Sections 3(3) or 3(37) of ERISA) or any other similar plan with
respect to which any governmental filings are required, except
for the plans listed on Schedule 3.15 hereof (collectively, the
"Company Plans"). A true and accurate copy of each of the
Company Plans, any related trust agreements and each of the
amendments thereto has been provided to Gold Banc together with
(i) all determination letters received in respect of any
qualified plans, and (ii) all required reports and supporting
schedules filed with any Governmental Entity in respect of the
Company Plans for the three most recent years ending on or before
the date hereof. To the Knowledge of the Company, the Company
Plans and each fiduciary (as defined in Section 3(21) of ERISA)
of the Company Plans are in compliance in all material respects
with all applicable requirements (including nondiscrimination
requirements in effect as of the date hereof) of the Code,
including, but not limited to, Sections 79, 105, 106, 125, 401,
501, and 4975 of the Code. For purposes of this Section 3.15,
noncompliance with the Code or ERISA is material if such
noncompliance could have a Material Adverse Effect on the
condition of one or more of the Company Plans or of the Company
or the Bank, either as of the date hereof or upon discovery of
the noncompliance. All required contributions to the Company
Plans through the date hereof have been made. The Company and
the Bank (each with respect to the Company Plans), as well as the
Company Plans, have no material current or, to the Knowledge of
the Company, threatened liability of any kind to any Person,
including but not limited to any Governmental Entity, as of the
date hereof, other than for the payment of benefits in the
ordinary course.
Section 3.16 Environmental Laws. To the Knowledge of
the Company: (i) the operations of the Company and the Bank
comply in all material respects with all applicable federal,
state and local environmental Laws and neither the condition of
any property owned by the Company or the Bank nor the operation
of the business of any of such entities violates in any material
respect any applicable environmental Law; (ii) none of the
operations of the Company or the Bank is subject to any judicial
or administrative proceeding alleging the violation of any
environmental health or safety Law nor is it the subject of any
claim alleging damages to health or property pursuant to
which the Company or the Bank may be liable; (iii) none of the
operations of the Company or the Bank nor any of the properties
owned by the Company or the Bank is the subject of any federal,
state or local investigation in evaluating whether any remedial
action is needed to respond to a release or threatened release of
any hazardous waste or substance from whatever source; (iv) no
condition or event has occurred which, with notice or the passage
of time or both, would constitute a violation of any
environmental Law and neither the Company nor the Bank has had
any liability in connection with the storage or use of any
pollutants, contaminants or hazardous or toxic waste, substances
or materials on or at any location owned or leased by the Company
or the Bank; (v) there are no underground storage tanks (as
defined in 42 U.S.C. Section 6991) now or heretofore located on
any real property owned or leased by the Company or the Bank;
(vi) neither the Company nor the Bank has ever been notified by a
Governmental Entity, or any private party, that the Company or
the Bank is a potentially responsible party for remedial costs
spent addressing the release, or threat of a release, of a
hazardous substance into the environment pursuant to the
Comprehensive Environmental Response, Compensation or Liability
Act, 42 U.S.C. Sections 9601, et seq. or any corresponding state
law.
Gold Banc may obtain at its option and expense on or
prior to the Closing Date an environmental audit of any or all
properties and assets of the Company and the Bank whether
directly owned, leased or classified as other real estate owned.
Such environmental audit shall constitute a part of the due
diligence process, should Gold Banc choose to pursue it, and if
Gold Banc determines in its sole discretion that such
environmental audit reflects the potential of a material
environmental problem with respect to any of the properties or
assets of the Company or the Bank, then such environmental
problem shall constitute a Material Adverse Change in the
Company.
Section 3.17 Labor Matters.
(a) To the Knowledge of the Company, the Company
and the Bank are in compliance with all Laws respecting
employment and employment practices, terms and
conditions of employment and wages and hours, and are
not engaged in any unfair labor practice, except for
such matters as would not have a Material Adverse
Effect on the Company or the Bank.
(b) Neither the Company nor the Bank has received
any notice of any unfair labor practice complaint
against the Company or the Bank pending before the
National Labor Relations Board.
(c) Neither the Company nor the Bank is party to
any collective bargaining agreements and there is no
labor strike, dispute, slowdown, representation
campaign or work stoppage actually pending or, to the
Knowledge of the Company, threatened against or
affecting the Company or the Bank.
(d) No grievance or arbitration proceeding by any
employee is pending and no claim therefor has been
asserted against the Company or the Bank.
(e) Neither the Company nor the Bank is
experiencing any material work stoppage.
Section 3.18 Year 2000 Compliance. The Company and
the Bank have (i) initiated a review and assessment of all areas
material to its business and operations (including those affected
by suppliers and vendors) that would reasonably be expected to be
adversely affected by the Year 2000 Problem, (ii) developed a
plan and time line for addressing the Year 2000 Problem on a
timely basis, and (iii) to date, reasonably believes that all
computer applications that are material to the Company's and the
Bank's respective business and operations will be Year 2000
Compliant.
Section 3.19 Legal Proceedings. Except as disclosed
on Schedule 3.19 hereof, there are no Actions pending or, to the
Knowledge of the Company, threatened against or affecting the
properties, assets, rights or business of the Company or the
Bank, or the right to carry on or conduct their business. There
are no Actions pending or, to the Knowledge of the Company,
threatened which could prevent or interfere with the consummation
of the transactions contemplated by this Agreement.
Section 3.20 Contracts. Except as set forth on
Schedule 3.20 hereof, neither the Company nor the Bank is a party
to or subject to any:
(a) employment contract;
(b) bonus, deferred compensation, equity
incentive, savings, profit sharing, severance pay,
pension or retirement plan or arrangement, except for
the Company Plans referenced on Section 3.15 hereof;
(c) material lease or license with respect to any
property, real or personal, whether the Company or the
Bank is landlord or tenant, licensor or licensee,
involving a liability or obligation of the Company or
the Bank as obligor, except for the Leases referenced
in Section 3.11 hereof;
(d) agreement, contract or indenture relating to
the borrowing of money by the Company or the Bank,
excluding items made in the ordinary course of
business;
(e) agreement with any present or former officer,
director, shareholder or affiliate of the Company or
the Bank, or any Person controlling, controlled by or
under common control with any of the foregoing; or
(f) other contract, agreement or other commitment
which is material to the business, operations,
property, prospects or assets or to the condition,
financial or otherwise, of the Company or the Bank or
which involve a payment by the Company or the Bank of
more than $15,000 on an annual basis.
Section 3.21 Required Consents. Except as set forth
on Schedule 3.21 hereof, no Consent of any Person or Governmental
Entity is necessary for the consummation by the Company or the
Bank of this Agreement or any of the transactions contemplated
hereby (including the Bank Merger), other than such Consent,
which if not obtained, would not be reasonably likely to have a
Material Adverse Effect on the Company or the Bank.
Section 3.22 Broker's Fees. Other than the
engagement of Xxxxx Xxxxxxxx & Xxxxx, Inc. described on Schedule
3.22 hereof, neither the Company, the Bank nor any of the
directors, trustees, officers or employees of the Company or the
Bank, has employed any broker or finder, or incurred any
liability for any broker's fees, commissions or finder's fees in
connection with the transactions contemplated by this Agreement.
Section 3.23 No Material Adverse Change. Except as
set forth on Schedule 3.23 hereof, from July 31, 1999 until the
date hereof, to the Knowledge of the Company, there has been no
Material Adverse Change in the Company or the Bank, or in the
relationship of the Company or the Bank with respect to their
employees, creditors, suppliers, distributors or customers.
Section 3.24 Loans.
(a) The Bank is not a party to any written or
oral loan agreement, note or borrowing arrangement
which has been classified as "substandard", "doubtful,"
"loss," "other loans especially mentioned" or any
comparable classifications by the Company or the Bank
or banking regulators, except as reflected on a list
previously provided to Gold Banc during the due
diligence period;
(b) Except as set forth on Schedule 3.24(b)
hereof, neither the Company nor the Bank is a party to
any written or oral loan agreement, note, or borrowing
arrangement, including any loan guaranty, with any
director or executive officer of the Company or the
Bank, or any person, corporation or enterprise
controlling, controlled by or under common control with
any of the foregoing;
(c) Neither the Company nor the Bank is a party
to any written or oral loan agreement, note or
borrowing arrangement in violation of any Law, which
violation is reasonably likely to result in a Material
Adverse Effect on the Company or the Bank.
Section 3.25 Opinion of Financial Advisors. The
Company has received the written opinion of Xxxxx Xxxxxxxx &
Xxxxx, Inc., investment advisor to the Company ("Investment
Advisor Opinion"), to the effect that, as of the date of the
Investment Advisor Opinion, the consideration to be received by
the holders of Company Common Stock in the Merger is fair, from a
financial point of view, to such holders.
Section 3.26 Accounting Matters. To the Knowledge of
the Company, neither the Company nor the Bank has taken or agreed
to take any action that would prevent Gold Banc from accounting
for the business combination to be effected by the Merger as a
pooling-of-interests under GAAP.
Section 3.27 Beneficial Ownership of Gold Banc Common
Stock. As of the date hereof, neither the Company nor the Bank
"beneficially owns" (as defined in Rule 13d-3 under the Exchange
Act) in the aggregate any Gold Banc Common Stock.
Section 3.28 Accruals.
(a) The Company and the Bank have properly
accrued consistent with past practices for all current
and carry-over vacation time for their employees
through the date hereof.
(b) The Company and the Bank have properly
accrued consistent with past practices for all
mandatory and discretionary matching contributions to
the Company's 401(k) Plan through the date hereof.
(c) The Company and the Bank have properly
accrued consistent with past practices for
discretionary bonuses that may be payable to their
employees as contemplated by Section 5.2(c) through the
date hereof.
Section 3.29 Company Convertible Debentures.
(a) As of the date hereof, the aggregate
principal amount of Company Convertible Debentures
outstanding is $770,000.
(b) The net book value per share of Company
Common Stock, as established by the Company's audited
financial statements, dated as of December 31, 1992,
was $13.95 per share. Pursuant to paragraph 9(b) of
each Company Convertible Debenture, (i) as of the date
hereof, the outstanding principal amount of and all
accrued and unpaid interest of the Company Convertible
Debenture is convertible into nonvoting common stock of
the Company and (ii) when the same has been amended as
contemplated by Section 5.20 hereof, each $5,000.00 of
outstanding principal amount of the Company Convertible
Debenture will be convertible into 358 shares of
Company Common Stock.
(c) Pursuant to paragraph 5 of each Company
Convertible Debenture, the Company has the right, on
thirty (30) days prior written notice, to prepay all or
any part of the principal amount of Company Convertible
Debentures without penalty.
Section 3.30 Undisclosed Liabilities; Adverse
Agreements.
(a) Except as disclosed in the Schedules attached
hereto or the Company's Financial Statements, there are
no liabilities of the Company or the Bank of any kind
whatsoever, whether accrued, contingent, absolute,
determined, determinable or otherwise, that are
reasonably likely to have a Material Adverse Effect on
the Company or the Bank.
(b) Neither the Company nor the Bank is a party
to any Order, or subject to any Law, which is
reasonably likely to result in a Material Adverse
Effect on the Company or the Bank.
Section 3.31 Absence of Certain Events. Except as
contemplated by this Agreement or as set forth on Schedule 3.31
hereof, since July 31, 1999, the Company and the Bank have
conducted their business only in the ordinary and usual course,
and there has not been: (i) any declaration, setting aside or
payment of any dividend or other distribution (whether in cash,
stock or property) with respect to the capital stock or other
securities of, or other ownership interests in, the Company or
the Bank, (ii) any amendment of any term of any outstanding
security of the Company or the Bank, (iii) any repurchase,
redemption or other acquisition by the Company or the Bank of any
outstanding shares of capital stock or other securities of, or
other ownership interests in, the Company or the Bank, (iv) any
incurrence, assumption or guarantee by the Company or the Bank of
any indebtedness for borrowed money (other than customer deposits
in the Bank, FHLB advances, federal funds purchases, letter of
credit transactions with correspondent banks, Federal Reserve
borrowings and foreign currency exchanges); (v) any creation or
assumption by the Company or the Bank of any Lien on any of their
assets, other than any Lien that is not reasonably likely to have
a Material Adverse Effect on the Company; (vi) any making of any
material loan, advance or capital contributions to or any
material investment in any Person; (vii) any material change in
any method of accounting or accounting practice; (viii) any (a)
grant of any severance or termination pay to any director,
officer, or employee of the Company or the Bank, (b) entering
into of any employment, deferred compensation or other similar
agreement (or any amendment to any such existing agreement) with
any director, officer or employee of the Company or the Bank,
except for annual or merit increases in accordance with past
practices, (c) increase in benefits payable under any existing
severance or termination pay policies or employment agreements
with any director, officer or employee of the Company or the Bank
or (d) increase in compensation, bonus or other benefits payable
to any director, officer or employee of the Company or the Bank,
or (ix) any other transaction, commitment, dispute or other event
or condition (financial or otherwise) of any character, whether
or not in the ordinary course of business, individually or
in the aggregate, which is reasonably likely to have a Material
Adverse Effect on the Company or the Bank, taken as a whole.
Section 3.32 Disclosure. Copies of all documents
heretofore or hereafter delivered or made available to Gold Banc
pursuant hereto are and will be complete and accurate. No
representation or warranty of the Company in this Agreement or
any other document delivered pursuant hereto or any document,
certificate or exhibit furnished or to be furnished by the
Company pursuant to this Agreement or in connection with the
transactions contemplated hereby contains or will contain any
untrue statement of a material fact or omits or will omit a
material fact necessary to make the statements contained herein
or therein not misleading. To the Knowledge of the Company,
there is no fact which the Company has not disclosed in writing
to Gold Banc which is reasonably likely to have a Material
Adverse Effect, on the Company or the Bank.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF GOLD BANC
Gold Banc hereby makes the following representations
and warranties to the Company, each of which is true and correct
on the date hereof and each of which shall not be affected by any
investigation heretofore or hereafter made by the Company or its
representatives.
Section 4.1 Corporate.
(a) Gold Banc is a corporation duly organized,
validly existing and in good standing under the laws of
the State of Kansas with all requisite corporate power
and authority to own, lease and operate its properties
and conduct its business as it is now being conducted.
Gold Banc is duly registered as a bank holding company
under the BHC Act. Gold Banc is duly qualified and in
good standing in all states where the conduct of its
business so requires except where failure to so qualify
is not reasonably likely to have a Material Adverse
Effect on Gold Banc.
(b) Gold Bank is a wholly-owned subsidiary of
Gold Banc and is a federally chartered banking
association. Gold Bank is duly qualified to do
business in all states in which the conduct of its
business requires such qualification except where the
failure to be so qualified is not reasonably likely to
have a Material Adverse Effect on Gold Bank.
Section 4.2 Capital Structure.
(a) Gold Banc. As of the date hereof, the
authorized capital stock of Gold Banc consists only of
50,000,000 shares of Gold Banc Common Stock and
50,000,000 shares of Gold Banc Preferred Stock, of
which 17,181,618 shares of Gold Banc Common Stock
and no shares of Gold Banc Preferred Stock are issued
and outstanding. All outstanding shares of Gold Banc
Common Stock are validly issued, fully paid and
nonassessable and are not subject to preemptive rights.
(b) Gold Bank. As of the date hereof, the
authorized capital stock of Gold Bank consists only of
10,000 shares of Gold Bank Common Stock, par value
$100.00 per share, of which 2375 shares are issued and
outstanding. All of the issued and outstanding shares
of Gold Bank Common Stock are owned beneficially and of
record, free and clear of all Liens, by Gold Banc. All
outstanding shares of Gold Bank Common Stock are
validly issued, fully paid and nonassessable.
Section 4.3 Authority.
(a) Gold Banc has all requisite corporate power
and authority to enter into this Agreement and all
other agreements to be executed and delivered by Gold
Banc pursuant hereto, and to perform its obligations
hereunder and thereunder, and to consummate the
transactions contemplated hereby and thereby. The
execution and delivery of this Agreement and all other
agreements to be executed and delivered by Gold Banc
pursuant hereto, the performance of Gold Banc's
obligations hereunder and thereunder, and the
consummation of the transactions contemplated hereby
and thereby, have been duly authorized by all necessary
corporate action on the part of Gold Banc. This
Agreement has been, and all other agreements to be
executed and delivered by Gold Banc will be prior to
the Effective Time, duly executed and delivered by Gold
Banc, and constitutes, or will constitute, the legal,
valid and binding obligations of Gold Banc, enforceable
against Gold Banc in accordance with their terms.
(b) Gold Bank has all requisite corporate power
and authority to enter into the Bank Merger Agreement
and all other agreements to be executed and delivered
by Gold Bank pursuant thereto and to perform its
obligations thereunder, and to consummate the
transactions contemplated thereby. The execution and
delivery of the Bank Merger Agreement and all other
agreements to be executed and delivered by Gold Bank
pursuant thereto, the performance of Gold Bank's
obligations thereunder, and the consummation of the
transactions contemplated thereby, have been duly
authorized by all necessary corporate action on the
part of Gold Bank. The Bank Merger Agreement and all
other agreements to be executed and delivered by Gold
Bank will be duly executed and delivered by Gold Bank
and will constitute the legal, valid and binding
obligations of Gold Bank, enforceable against Gold Bank
in accordance with their terms.
Section 4.4 Shareholder Approval.
(a) The Board of Directors of Gold Banc has
directed, or will direct, that this Agreement and the
transactions contemplated hereby be submitted to Gold
Banc's stockholders for approval at a meeting of such
stockholders and, except for adoption of this Agreement
by the requisite vote of Gold Banc's stockholders, no
other Gold Banc stockholder action is necessary to
approve this Agreement and to consummate the
transactions contemplated hereby. The Board of
Directors of Gold Banc will recommend that the Gold
Banc stockholders approve this Agreement and the Merger
contemplated hereby, subject to their fiduciary duties.
The affirmative vote of the holders of a majority of
the outstanding shares of Gold Banc Common Stock is the
only vote of the holders of any class or series of Gold
Banc's capital stock necessary to approve this
Agreement and to consummate the Merger and the
transactions contemplated hereby. No approval of a
number of outstanding shares of capital stock of Gold
Banc greater than that required by the relevant
statutory provisions is required for approval of this
Agreement and the consummation of the transactions
contemplated hereby.
(b) The Board of Directors of Gold Bank will
direct that the Bank Merger Agreement and the
transactions contemplated thereby be submitted to Gold
Bank's sole stockholder for approval and, except for
adoption of the Bank Merger Agreement by the requisite
vote of Gold Bank's sole stockholder, no other Gold
Bank stockholder action is necessary to approve the
Bank Merger Agreement and to consummate the
transactions contemplated thereby. The Board of
Directors of Gold Bank will recommend that Gold Bank's
sole stockholder approve the transactions contemplated
hereby, subject to their fiduciary duties. The
affirmative vote of the holders of two-thirds of the
outstanding shares of Gold Bank Common Stock is the
only vote of the holders of any class or series of Gold
Bank's capital stock necessary to approve the Bank
Merger Agreement and to consummate the transactions
contemplated thereby. No approval of a number of
outstanding shares of capital stock of Gold Bank
greater than that required by the relevant statutory
provisions is required for approval of the Bank Merger
Agreement and the consummation of the transactions
contemplated thereby.
Section 4.5 Status of Gold Banc Common Stock to be
Issued. The shares of Gold Banc Common Stock into which the
shares of Company Common Stock are to be exchanged or converted
pursuant to the Merger, and the shares of Gold Banc Common Stock
into which the shares of Bank Common Stock are to be exchanged
pursuant to the Bank Merger, will be, when delivered as specified
in this Agreement and the Bank Merger Agreement, validly
authorized and issued, fully paid and nonassessable, and
registered pursuant to an effective registration statement under
the Securities Act.
Section 4.6 No Violation.
(a) The execution and delivery of this Agreement
and all other agreements to be executed and delivered
by Gold Banc and Gold Bank pursuant hereto, the
performance of the obligations of Gold Banc and Gold
Bank hereunder and thereunder, and the consummation of
the transactions contemplated hereby and thereby, will
not conflict with, violate or constitute a breach or
default under (i) the Articles of Incorporation or
Bylaws of Gold Banc or Gold Bank (ii) any provision of
any Contract, Lien, Order or other restriction of any
kind or character to which Gold Banc or any subsidiary
of Gold Banc is a party, or by which Gold Banc or any
subsidiary of Gold Banc or any of their assets, is
bound or (iii) result in the creation or imposition of
any Lien upon the capital stock or the assets of Gold
Banc or any subsidiary of Gold Banc, except in the case
of Sections 4.6(a)(ii) and (iii), such conflicts,
violations, breaches or defaults which are not
reasonably likely to have a Material Adverse effect on
Gold Banc.
(b) Gold Banc and each subsidiary of Gold Banc
has not violated, breached or defaulted, are not
currently in violation, breach or default of, and the
consummation of the transactions contemplated hereby
will not cause any violation, breach or default of, any
Laws, Orders, Licenses or Contracts applicable to Gold
Banc or any subsidiary of Gold Banc, except for any
violations, breaches or defaults which are not
reasonably likely to have a Material Adverse Effect on
Gold Banc.
(c) All Licenses required or necessary for Gold
Banc or any subsidiary of Gold Banc to carry on their
respective businesses as they are currently conducted
have been obtained and are in full force and effect.
Gold Banc, and each subsidiary of Gold Banc is in
compliance with all terms of the Licenses, except where
the failure to so comply is not reasonably likely to
have a Material Adverse Effect on Gold Banc.
Section 4.7 SEC Documents. Gold Banc has made
available to the Company a true and complete copy of each report,
schedule, registration statement and definitive proxy statement
filed by Gold Banc with the SEC since January 1, 1997 (the "Gold
Banc SEC Documents") which are all the documents (other than
preliminary material) that Gold Banc was required to file with
the SEC since such date. As of their respective dates, the Gold
Banc SEC Documents complied in all material respects with the
requirements of the Securities Act or the Exchange Act, as the
case may be, and the rules and regulations of the SEC thereunder
applicable to such Gold Banc SEC Documents, and none of the Gold
Banc SEC Documents contained any untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading.
The financial statements of Gold Banc included in the Gold Banc
SEC Documents complied as to form in all material respects with
the published rules and regulations of the SEC with respect
thereto, have been prepared in accordance with GAAP (except as
may be indicated in the notes thereto or, in the case of the
unaudited statements, as permitted by Rule 10-01 of
Regulation S-X of the SEC) and fairly present in accordance with applicable
requirements of GAAP (subject, in the case of the unaudited
statements, to normal, recurring adjustments, none of which will
be material) the consolidated financial position of Gold Banc and
its subsidiaries as of their respective dates and the
consolidated results of operations and the consolidated cash
flows of Gold Banc for the periods presented therein. Gold Banc
has no material liability or obligation of a type which would be
included in a balance sheet prepared in accordance with GAAP
whether related to tax or non-tax matters, accrued or contingent,
due or not yet due, liquidated or unliquidated, or otherwise,
except and to the extent disclosed or reflected in the financial
statements included in the Gold Banc SEC Documents. From July
31, 1999 until the date hereof, to the Knowledge of Gold Banc,
there has been no Material Adverse Change in the financial
condition of Gold Banc or in the relationship of Gold Banc with
respect to its employees, creditors, suppliers, distributors or
customers.
Section 4.8 Information Supplied. None of the
information supplied or to be supplied by Gold Banc for inclusion
or incorporation by reference in (i) the Registration Statement
will at the time the Registration Statement becomes effective
under the Securities Act or at the Effective Time or the Bank
Merger Effective Time contain any untrue statement of a material
fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not
misleading, other than information supplied in writing by the
Company, or (ii) the Proxy Statement will, at the date mailed to
shareholders of the Company and of the Bank, or at the time of
the meetings of such shareholders to be held in connection with
the Merger and the Bank Merger, or at the Effective Time or the
Bank Merger Effective Time, contain any untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they are made,
not misleading, other than information supplied by the Company.
If at any time prior to the Effective Time or the Bank Merger
Effective Time, any event with respect to Gold Banc or any
subsidiary of Gold Banc or with respect to other information
supplied by Gold Banc for inclusion in the Proxy Statement or
Registration Statement, shall occur which is required to be
described in an amendment of, or a supplement to, the
Registration Statement or the Proxy Statement, such event will be
so described, and such amendment or supplement be promptly filed
with the SEC and, as required by law, disseminated to the
shareholders of the Company and the Bank. The Proxy Statement,
insofar as it relates to Gold Banc or other information supplied
by Gold Banc for inclusion therein, will comply as to form in all
material respects with the provisions of the Exchange Act and the
rules and regulations thereunder.
Section 4.9 Taxes. Gold Banc and each subsidiary of
Gold Banc has timely filed all tax returns required to be filed
by it, and Gold Banc and each subsidiary of Gold Banc has timely
paid and discharged all taxes due in connection with or with
respect to the filing of such tax returns and has timely paid all
other taxes as are due, except such as are being contested in
good faith by appropriate proceedings and with respect to which
Gold Banc is maintaining reserves adequate for their payment.
The liability for taxes set forth on each such tax return
adequately reflects the taxes required to be reflected on
such tax return. To the Knowledge of Gold Banc neither the IRS
nor any other Governmental Entity or taxing authority or agency
is now asserting, either through audits, administrative
proceedings, court proceedings or otherwise, or threatening to
assert against Gold Banc or any subsidiary of Gold Banc, any
deficiency or claim for additional taxes. Neither Gold Banc nor
any subsidiary of Gold Banc has granted any waiver of any statute
of limitations with respect to, or any extension of a period for
the assessments of, any tax. There are no tax liens on any
assets of Gold Banc or any subsidiary of Gold Banc. To the
Knowledge of Gold Banc, neither Gold Banc nor any subsidiary of
Gold Banc has received a ruling or entered into an agreement with
the IRS or any other Governmental Entity or taxing authority or
agency that would have a Material Adverse Effect on Gold Banc.
Section 4.10 Regulatory Filings. Gold Banc and each
subsidiary of Gold Banc has timely filed all notices, reports,
registrations and statements with all Governmental Entities and
has paid all fees and assessments due and payable in connection
therewith. Except for normal examinations and reviews conducted
by Governmental Entities in the regular course of the business of
Gold Banc and any subsidiary of Gold Banc, to the Knowledge of
Gold Banc, no Governmental Entity has initiated any proceeding or
investigation into the business or operations of Gold Banc or any
subsidiary of Gold Banc. There is no unresolved material
violation, criticism, or exception by any Governmental Entity
with respect to any written report or statement relating to any
examinations of Gold Banc or any subsidiary of Gold Banc. Gold
Banc has made available to the Company all reports of
examinations conducted by any Governmental Entity with respect to
Gold Banc or the subsidiaries of Gold Banc during the preceding
three (3) years. Gold Banc will also make available to the
Company any subsequent reports of examination received from any
Governmental Entity between the date hereof and the Effective
Time.
Section 4.11 Legal Proceedings. Except as disclosed
on Schedule 4.11 hereof, there are no Actions pending or
threatened against or affecting the properties, assets, rights or
business of Gold Banc or any subsidiary of Gold Banc, or the
right to carry on or conduct their respective businesses. There
are no Actions pending or, to the Knowledge of Gold Banc,
threatened, which could prevent or interfere with the
consummation of the transactions contemplated by this Agreement.
Section 4.12 Required Consents. Except as set forth
on Schedule 4.12 hereof, no Consent of any Person or Governmental
Entity is necessary for the consummation by Gold Banc of this
Agreement or any of the transactions contemplated hereby
(including the Bank Merger) other than any Consent, which if not
obtained would not be reasonably likely to have a Material
Adverse Effect on Gold Banc.
Section 4.13 Broker's Fees. Neither Gold Banc nor
any of its directors, trustees, officers or employees has
employed any broker or finder, or incurred any liability for any
broker's fees, commissions or finder's fees in connection with
the transactions contemplated by this Agreement.
Section 4.14 Year 2000 Compliance. Gold Banc and
each subsidiary of Gold Banc has (i) initiated a review and
assessment of all areas material to its business and operations
(including those affected by suppliers and vendors) that would
reasonably be expected to be adversely affected by the Year 2000
Problem, (ii) developed a plan and time line for addressing the
Year 2000 Problem on a timely basis, and (iii) to date,
reasonably believes that all computer applications that are
material to Gold Banc's and any subsidiary of Gold Banc's
respective business and operations will be Year 2000 Compliant.
Section 4.15 No Material Adverse Change. Except as
set forth in Schedule 4.15 hereof, from July 31, 1999 until the
date hereof, to the Knowledge of Gold Banc, there has been no
Material Adverse Change in the financial condition of Gold Banc
or in the relationship of Gold Banc with respect to its
employees, creditors, suppliers, distributors or customers.
Section 4.16 Undisclosed Liabilities; Adverse
Agreements.
(a) Except as disclosed in the Schedules hereto,
there are no liabilities of Gold Banc or any subsidiary
of Gold Banc of any kind whatsoever, whether accrued,
contingent, absolute, determined, determinable or
otherwise, that are reasonably likely to have a
Material Adverse Effect on Gold Banc.
(b) Neither Gold Banc nor any subsidiary of Gold
Banc is a party to any Order which is reasonably likely
to result in a Material Adverse Effect on Gold Banc.
Section 4.17 Disclosure. Copies of all documents
heretofore or hereafter delivered or made available to the
Company pursuant hereto are and will be complete and accurate.
No representation or warranty of Gold Banc in this Agreement or
any other document delivered pursuant hereto or any statement,
document, certificate or exhibit furnished or to be furnished by
Gold Banc pursuant to this Agreement or in connection with the
transactions contemplated hereby contains or will contain any
untrue statement of a material fact or omits or will omit a
material fact necessary to make the statements contained herein
or therein not misleading. To the Knowledge of Gold Banc, there
is no fact which Gold Banc has not disclosed in writing to the
Company which is reasonably likely to have a Material Adverse
Effect on Gold Banc.
ARTICLE V
COVENANTS OF COMPANY
Section 5.1 Affirmative Covenants of the Company.
Unless the prior written consent of Gold Banc shall have been
obtained, and which consent will be given or denied within two
Business Days of receipt of written request for such consent, and
except as otherwise expressly contemplated herein, the Company
shall and shall cause the Bank to (i) operate its business only
in the usual, regular, and ordinary course, consistent with past
practices, (ii) preserve intact its business organization
and assets and maintain its rights and franchises; (iii) preserve
substantially the Company's and the Bank's relationships with
suppliers, customers and employees, (iv) perform the Company's
and the Bank's obligations under the Contracts and Licenses, (v)
comply with all applicable Laws, (vi) maintain as valid and
enforceable all policies of insurance as referenced in Section
3.14 herein, (vii) provide monthly updates to Gold Banc and Gold
Bank with respect to those loans reflected on the list previously
provided to Gold Banc and Gold Bank as referenced in Section
3.24(a) herein, and (viii) take no action which would (a)
materially adversely affect the ability of any party to obtain
any Consents required for the transactions contemplated hereby,
(b) prevent the transactions contemplated hereby, including the
Merger, from qualifying as a reorganization within the meaning of
Section 368(a) of the Code, or (c) materially adversely affect
the ability of any party to perform its covenants and agreements
under this Agreement.
Section 5.2 Negative Covenants of the Company.
Except as specifically permitted by this Agreement, from the date
of this Agreement until the earlier of the Effective Time or the
termination of this Agreement, the Company covenants and agrees
that it will not do or agree to do, or permit the Bank to do or
agree to commit to do, any of the following without the prior
written consent of Gold Banc, which consent shall not be
unreasonably withheld and which consent will be given or denied
within two Business Days of receipt of written request for such
consent:
(a) make any single loan (or series of loans to
the same or related persons) or any commitment (verbal
or written) for a loan (or series of commitments to the
same or related persons) in an amount greater than
$500,000.00 including, without limitation, renewals and
extensions of existing loans and commitments to loan;
(b) purchase or invest in any securities, other
than United States government obligations or other
securities backed by the full faith and credit of the
United States having a maturity of not more than two
years from the date of purchase;
(c) amend or adopt any employee benefit plan or
grant any increase in the rates of pay of their
employees or any increase in the compensation payable
or to become payable, if any, to any director, officer,
trustee, employee or agent thereof, or contribute to
any pension plan or otherwise increase in any amount
the benefits or compensation of any such director,
officer, trustee, employee or agent under any pension
plan or other contract or commitment, except for annual
or merit increases and year-end bonuses awarded, in
each case in accordance with past practices; provided,
however, that such year-end bonuses may be paid on a
pro rata basis on or prior to the Closing Date;
(d) make any capital expenditure or enter into
any material contract or commitment (except loan
commitments as permitted in Subparagraph (a) of this
Section 5.2); involving an obligation or commitment in
excess of $25,000 or engage in any transaction not in
its usual and ordinary course of business and
consistent with past practices;
(e) except as set forth on Schedule 5.2(e)
hereof, declare or pay any dividend or make any other
distribution in respect of any capital stock of or
other beneficial interest in the Company or the Bank,
split, combine or reclassify any shares of its capital
stock or, directly or indirectly, redeem, purchase or
otherwise acquire any share of the capital stock of the
Company or the Bank;
(f) amend the Articles of Incorporation, Bylaws
or any other governing document of the Company or the
Bank or make any change in the authorized, issued or
outstanding capital stock (or any change in the par
value thereof) of Company or the Bank;
(g) acquire or purchase any assets of or make any
investment in any financial institution other than the
purchase of loans or participations therein in the
ordinary course of business;
(h) except as set forth on Schedule 5.2(h)
hereof, enter into any new line of business;
(i) acquire or agree to acquire, by merging or
consolidating with, or by purchasing a substantial
equity interest in or a substantial portion of the
assets of, or by any other manner, any business or any
corporation, partnership, association or other business
organization or division thereof, or otherwise acquire
any assets, which would be material, individually or in
the aggregate, to the Company or the Bank, other than
in connection with foreclosures, settlements in lieu of
foreclosure or troubled loan or debt restructuring in
the ordinary course of business consistent with prudent
banking practices;
(j) take any action that is intended or may
reasonably be expected to result in any of its
representations and warranties set forth in this
Agreement being or becoming untrue in any material
respect, or in any of the conditions to the Merger set
forth in Article VII not being satisfied, or in a
violation of any provision of this Agreement except, in
every case, as may be required by applicable Law;
(k) change its methods of accounting in effect on
the date hereof, except as required by changes in GAAP
or regulatory accounting principles as concurred with
by the Company's independent accountants;
(l) other than activities in the ordinary course
of business consistent with prior practice, sell,
lease, encumber, assign or otherwise dispose of any of
its material assets or properties;
(m) file any application to relocate or terminate
the operations of any banking office;
(n) make any equity investment or commitment to
make such an investment in real estate or in any real
estate development project, other than in connection
with foreclosures, settlements in lieu of foreclosure
or troubled loan or debt restructuring in the ordinary
course of business consistent with prudent banking
practices;
(o) create, renew, amend or terminate or give
notice of a proposed renewal, amendment or termination
of, any material Contract to which the Company or the
Bank is a party or by which the Company or the Bank or
their respective properties is bound, except that the
Company shall have the right to (i) prepay the Company
Convertible Debentures as contemplated by Section 5.18
hereof and (ii) prepay, in whole or in part, its
currently outstanding bank stock loan;
(p) make any new loan or new extension of credit,
or commit to make any such loan or extension of credit,
to any director, officer or trustee of the Company or
the Bank without giving Gold Banc two days' notice in
advance of the approval of such loan or extension of
credit or commitment relating thereto;
(q) waive any material right, forgive any
material debt or release any material claim; or
(r) incur or guaranty any debt (other than
customer deposits in the Bank, FHLB advances, federal
funds purchases, letter of credit transactions with
correspondent banks, Federal Reserve borrowings and
foreign currency exchanges).
Section 5.3 Inspection. Between the date hereof and
the Closing Date and upon reasonable notice, Gold Banc and its
authorized representatives shall be permitted full access during
regular business hours to all properties, books, records,
contracts and documents of the Company and the Bank. All such
access shall be conducted in a manner that does not interfere
unreasonably with the normal conduct of the business of the
Company and the Bank. The Company shall furnish to Gold Banc and
its authorized representatives all information with respect to
the affairs of the Company and each of its Subsidiaries as Gold
Banc may reasonably request.
Section 5.4 Financial Statements and Call Reports.
From and after the date hereof through the Closing Date, the
Company shall deliver to Gold Banc monthly reports of condition
and income statements of the Bank and shall deliver to Gold Banc
copies of the call reports for the Bank as filed with any
regulatory agency promptly after such filing.
Section 5.5 Right to Attend Meetings. The Company
shall give reasonable notice to Gold Banc of all meetings of the
Board of Directors or Executive Committee of the Company and of
the Bank and, if known, the agenda for business to be discussed
at such meetings and, with the permission of the Company, a
representative of Gold Banc may attend any such meetings as an
observer; provided, however, in the event the Board of Directors
or Executive Committee of the Company or the Bank desires to
discuss confidential matters related to Gold Banc or the Merger,
they may dismiss the representative of Gold Banc from such
meetings. The Bank shall give reasonable notice of, and shall
allow a representative of Gold Banc to attend, all loan committee
meetings of the Bank. The Company and the Bank shall provide to
Gold Banc all written information provided to the directors in
connection with all such board and committee meetings or
otherwise provided to such directors and shall provide any other
financial reports or other analyses prepared for senior
management of the Company or the Bank.
Section 5.6 Data Processing. The Company shall, and
shall cause the Bank to, cooperate with Gold Banc in taking those
planning actions necessary to be in a position to convert its
data processing procedures and formats to procedures and formats
used by Gold Banc. Gold Banc shall provide such assistance and
consultation as the Company may reasonably require in such
planning process.
Section 5.7 No Solicitation.
(a) Except with respect to the Agreement and the
transactions contemplated hereby, neither the Company,
nor the Bank, or any officer, director, trustee or
employee of, or any investment banker, attorney or
other advisor or representative of, the Company or the
Bank, shall, directly or indirectly, (i) solicit,
initiate or encourage the submission of, any
Acquisition Proposal, or approve or authorize any
Acquisition Proposal or (ii) participate in any
discussions or negotiations regarding or take any other
action to expedite any inquiries or the making of any
proposal that constitutes, or may reasonably be
expected to lead to, any Acquisition Proposal, or (iii)
furnish to any Person (other than Gold Banc, or Gold
Bank, an affiliate or associate of Gold Banc or Gold
Bank or an officer, employee or other authorized
representative of Gold Banc, Gold Bank or such
affiliate or associate or the Company's counsel,
accountants and financial adviser, solely for use in
connection with the transactions contemplated hereby)
any information with respect to the Company or the Bank
that may reasonably be expected to lead to an
Acquisition Proposal; provided, however, that to the
extent required by the fiduciary obligations of the
Board of Directors of the Company, as determined
in good faith by the Board of Directors based on the
advice of outside counsel, the Company may (A) in
response to an unsolicited request therefor, furnish
information with respect to the Company or any
Subsidiary to any Person pursuant to a customary
confidentiality agreement and discuss such information
with such Person, (B) upon receipt by the Company of an
Acquisition Proposal, following delivery to Gold Banc
of the notice required pursuant to Section 5.7(b)
hereof, participate in negotiations regarding such
Acquisition Proposal, and (C) modify or withdraw its
recommendation that the stockholders of the Company
vote in favor of the Merger as contemplated by
Section 2.12 hereof.
(b) The Company shall (i) promptly notify Gold
Banc of (A) the existence of any request for
confidential information with respect to, or the
receipt of, any Acquisition Proposal, (B) any inquiry
or discussions with respect to, or which would
reasonably be expected to lead to, any Acquisition
Proposal, (C) the execution of a confidentiality
agreement with respect to an Acquisition Proposal, (D)
the execution of any agreement with respect to the
terms of an Acquisition Proposal, (E) the furnishing of
any information in contemplation of an Acquisition
Proposal, whether or not pursuant to a confidentiality
agreement and (F) any endorsement, approval or
recommendation of an Acquisition Proposal by the
Company's Board of Directors or any committee thereof,
(ii) promptly describe to Gold Banc the terms and
conditions of any Acquisition Proposal in reasonable
detail, and (iii) furnish to Gold Banc all information
made available to any Person making the Acquisition
Proposal, or contemplating the making of an Acquisition
Proposal, subject to a customary confidentiality
agreement.
(c) Except as may be required in the exercise of
the fiduciary duties of the Board of Directors of the
Company, the Company shall not take any action that
would enhance the ability of any other Person making an
Acquisition Proposal to obtain the approval of the
Company's stockholders or otherwise consummate such
Acquisition Proposal without also taking a comparable
action that would similarly enhance the ability of Gold
Banc to obtain any necessary approval of the Company's
stockholders of, and otherwise to consummate, the
Merger contemplated by this Agreement or an alternative
transaction initiated by Gold Banc, and concurrently
withdrawing any impediments thereto that do not
similarly impede such other Person.
Section 5.8 Regulatory Approvals. Subject to the
terms and conditions of this Agreement, the Company agrees to,
and to cause the Bank to, use its reasonable best efforts to
cooperate with Gold Banc in Gold Banc's efforts to secure as
expeditiously as practicable all the necessary approvals,
regulatory or otherwise, needed to consummate the transactions
contemplated herein.
Section 5.9 Information. The Company shall provide
such information and answer such inquiries as Gold Banc may
reasonably request or make concerning the subject matter of the
representations and warranties of the Company herein.
Section 5.10 Tax Returns. The Company shall prepare
income tax returns for the Company and the Bank from the
commencement of the current fiscal year through the Effective
Time with such returns to be completed within ninety (90) days
after the Effective Time.
Section 5.11 Tax-Free Reorganization Treatment. The
Company shall not intentionally take or cause or permit to be
taken any action, whether before or after the Effective Time,
which would disqualify the Merger as a tax-free "reorganization"
within the meaning of Section 368(a) of the Code (subject to
required recognition of gain or loss with respect to cash paid
for fractional shares pursuant hereto or to any holder of Company
Common Stock who dissents from the Merger).
Section 5.12 Pooling-of-Interests Accounting
Treatment.
(a) The Company shall not intentionally take or
cause or permit to be taken any action before the
Effective Time which would disqualify the Merger from
receiving pooling-of-interests accounting treatment.
(b) Within thirty (30) days after the execution
and delivery of this Agreement, the Company shall use
its best efforts to obtain from the Company's
Accountants and deliver to Gold Banc a letter stating
that the Company is eligible to participate in a
pooling-of-interests transaction (the "Pooling
Letter").
Section 5.13 Cooperation by the Company. The Company
shall use all commercially reasonable efforts to take all actions
and to do all things necessary or advisable to consummate the
transactions contemplated by this Agreement and to cooperate with
Gold Banc in connection therewith, including using commercially
reasonable efforts to obtain all required Consents.
Section 5.14 Year 2000 Compliance. With respect to
all computer hardware, computer software applications, and bank
services and products, the Company shall, and shall cause the
Bank to (i) use its best efforts to comply with all Federal
Financial Institution Examination Council Year 2000 regulations
and guidelines and (ii) take all action necessary to receive a
rating of "Satisfactory" or better on any Year 2000 compliance
examination conducted by its respective examining agencies.
Section 5.15 Confidentiality. Except as and to the
extent required by Laws, the Company and the Bank will not
disclose or use, and will direct their representatives not to
disclose or use to the detriment of Gold Banc or any of its
subsidiaries any Gold Banc Confidential Information furnished, or
to be furnished, to the Company, the Bank or their
representatives at any time or in any manner other than in
connection with the evaluation of the transactions contemplated
herein. "Gold Banc Confidential Information" includes any
information about Gold Banc or its subsidiaries and their
business unless (a) such information is already known to the
Company, the Bank or their representatives not bound by a duty of
confidentiality or such information becomes publicly available
through no fault of the Company or their representatives, (b) the
use of such information is necessary or appropriate in making any
filing or obtaining any consent or approval required for the
consummation of the transactions contemplated herein, or (c) the
furnishing or use of such information is required by or necessary
or appropriate in connection with legal proceedings. Following
the termination of this Agreement, upon written request of Gold
Banc, each of the Company and the Bank will promptly return to
Gold Banc or destroy any Gold Banc Confidential Information in
its possession and certify in writing to Gold Banc that it has so
returned or destroyed such Gold Banc Confidential Information.
Section 5.16 Employee Benefit Plans. The Company
shall, prior to the Closing Date, adopt any and all resolutions
and take all other actions that are necessary or appropriate to
(i) make the necessary contributions to the Company Profit
Sharing 401(k) Plan (the "401(k) Plan") to satisfy the Company's
401(k) safe harbor contribution obligation for the partial plan
year ending on the 401(k) Plan termination date; (ii) except as
set forth immediately above in (i) of this paragraph, cease all
other contributions to the 401(k) Plan as of the day before the
Closing Date; (iii) terminate the 401(k) Plan and fully vest all
participant account balances in such plan as of the day before
the Closing Date; (iv) resign as plan administrator of the 401(k)
Plan; and (v) secure the resignation of the current trustees of
the 401(k) Plan. Gold Banc shall (i) assume full responsibility
and bear full expense in amending the 401(k) Plan following the
Closing Date in such manner as is necessary for the 401(k) Plan
to be in compliance with all applicable laws as of the 401(k)
Plan's termination date and (ii) apply for and obtain a favorable
determination letter from the IRS following which it will
distribute the assets of the 401(k) Plan. Gold Banc agrees to
accept its appointment, or will appoint an affiliate corporation,
as successor plan trustee and successor plan administrator. Gold
Banc will provide to the Company form resolutions and other
materials prior to the closing necessary for the effectuation of
the termination of the 401(k) Plan by the Company, which
materials the Company and the plan administrator and trustees
shall be entitled to rely upon without incurring any liability.
Section 5.17 Legal Proceedings. The Company agrees
to advise Gold Banc if at any time between the date hereof and
the Effective Time, any legal proceeding as described in Section
3.19 hereof is initiated or, to the Knowledge of the Company,
threatened.
Section 5.18 Regarding Company Convertible
Debentures.
(a) At least thirty (30) days prior to the
Closing Date, the Company shall call all outstanding
Company Convertible Debentures by providing each
debenture holder with written notice of its intent to
prepay all of the Company Convertible Debentures that
are not converted into Company Common Stock.
(b) The Company shall pay each debenture holder
all accrued and unpaid interest on the Company
Convertible Debentures.
(c) At the time the Company calls the Company
Convertible Debentures in accordance with Section
5.18(a) hereof, the Company will also provide each
debenture holder with the following:
(1) Notice of the Company's intent to prepay
all Company Convertible Debentures which are not
converted into shares of Company Common Stock.
(2) A statement to each debenture holder
that it may be advisable and in such debenture
holder's best interests to elect to convert the
holder's Company Convertible Debentures into
Company Common Stock.
(3) Any documentation necessary to effect
the conversion of Company Convertible Debentures
into Company Common Stock.
(4) A copy of the Proxy Statement.
Section 5.19 Bank Merger. The Company shall take,
and shall cause the Bank to take, all actions necessary to
effectuate the Bank Merger.
Section 5.20 Amendment of Company Convertible
Debentures. Within thirty (30) days after the date hereof, each
Company Convertible Debenture will be amended, in a form
previously presented to and approved by Gold Banc, to provide
that the principal amount of each Company Convertible Debenture
is convertible into Company Common Stock and all accrued and
unpaid interest that is or will become due on the Company
Convertible Debentures must be paid by the Company at the time of
such conversion.
ARTICLE VI
COVENANTS OF GOLD BANC
Section 6.1 Regulatory Approvals. Subject to the
terms and conditions of this Agreement, Gold Banc agrees to use
its reasonable best efforts to secure as expeditiously as
practicable all the necessary approvals, regulatory or otherwise,
needed to consummate the transactions contemplated herein and
agrees to exercise its best efforts to file applications relating
to such approvals as soon as is reasonably possible. Gold Banc
shall provide to Company's Counsel a copy of all applications for
such approvals and shall keep such counsel or the Company advised
of the status of the regulatory review process, including,
without limitation, promptly providing the Company a copy of any
order or other action with respect to such application.
Section 6.2 Information. Gold Banc shall provide
such information and answer such inquiries as the Company may
reasonably request or make concerning the subject matter of the
representations and warranties of Gold Banc herein.
Section 6.3 Tax-Free Reorganization Treatment. Gold
Banc shall not intentionally take or cause to be taken any
action, whether before or after the Effective Time, which would
disqualify the Merger as a tax-free "reorganization" within the
meaning of Section 368(a) of the Code.
Section 6.4 Employee Benefit Plans; Prior Service
Credit. Employees of the Company or the Bank shall be eligible
to participate in all Gold Banc employee welfare benefit plans in
accordance with their terms; provided, however, that for purposes
of determining eligibility to participate in and vesting of
benefits under Gold Banc's employee benefit plans, Gold Banc
shall recognize years of service by such employees with the
Company or the Bank prior to the Effective Time.
Section 6.5 Assumption of Company Stock Options.
Each outstanding Company Stock Option shall be assumed by Gold
Banc on the same terms and conditions, except that the options
shall be modified (i) to provide for the issuance of shares of
Gold Banc Common Stock, (ii) to adjust each option price by
dividing such option price by the Exchange Ratio and (iii) to
adjust the number of shares subject to each option by multiplying
such number of shares by the Exchange Ratio, all as contemplated
by Section 424(a) of the Code.
Section 6.6 Confidentiality. Except as and to the
extent required by Laws, Gold Banc will not disclose or use, and
will direct their representatives not to disclose or use to the
detriment of the Company or the Bank any Company Confidential
Information, furnished, or to be furnished, to Gold Banc, Gold
Bank or their representatives at any time or in any manner other
than in connection with the evaluation of the transactions
contemplated herein. "Company Confidential Information" includes
any information about the Company or the Bank and their business
unless (a) such information is already known to Gold Banc, Gold
Bank or their representatives not bound by a duty of
confidentiality or such information becomes publicly available
through no fault of Gold Banc, Gold Bank or their
representatives, (b) the use of such information is necessary or
appropriate in making any filing or obtaining any consent or
approval required for the consummation of the transactions
contemplated herein, or (c) the furnishing or use of such
information is required by or necessary or appropriate in
connection with legal proceedings. Following the termination of
this Agreement, upon written request of the Company, each of Gold
Banc and Gold Bank will promptly return to the Company or destroy
any Company Confidential Information in its possession and
certify in writing to the Company that it has so returned or
destroyed such Company Confidential Information.
Section 6.7 Pooling-of-interests Accounting
Treatment. Gold Banc shall not intentionally take or cause or
permit to be taken any action, whether before or after the
Effective Time, which would disqualify the Merger from
receiving pooling-of-interests accounting treatment.
Section 6.8 Cooperation by Gold Banc. Gold Banc
shall use all commercially reasonable efforts to take all actions
and to do all things necessary or advisable to consummate the
transactions contemplated by this Agreement and to cooperate with
the Company in connection therewith including using commercially
reasonable efforts to obtain all required Consents.
Section 6.9 Year 2000 Compliance. With respect to
all computer hardware, computer software applications, and bank
services and products, Gold Banc shall, and shall cause its
subsidiaries to, (i) use their best efforts to comply with all
Federal Financial Institution Examination Council Year 2000
regulations and guidelines and (ii) take all action necessary to
receive a rating of "Satisfactory" or better on any Year 2000
compliance examination conducted by their respective examining
agencies.
Section 6.10 Legal Proceedings. Gold Banc agrees to
advise the Company if at any time between the date hereof and the
Effective Time, any legal proceeding as described in Section 4.11
hereof, is initiated or, to the Knowledge of Gold Banc,
threatened.
Section 6.11 Employment Agreements. Gold Banc shall
use commercially reasonable efforts to negotiate and enter into
the Employment and Non-Compete Agreements contemplated by Section
8.13.
Section 6.12 Bank Merger. Gold Banc shall take, and
shall cause Gold Bank to take, all actions necessary to
effectuate the Bank Merger.
ARTICLE VII
CONDITIONS PRECEDENT TO OBLIGATIONS
OF THE COMPANY
The obligations of the Company to consummate the
transactions contemplated hereunder shall be subject to
satisfaction on or before the Closing Date of all of the
following conditions, except such conditions as the Company may
waive in writing:
Section 7.1 Representations, Warranties and
Covenants. All representations and warranties of Gold Banc
contained in this Agreement shall be true and correct in all
material respects on and as of the Closing Date, except for
changes permitted by or contemplated by this Agreement, and
except that to the extent any such representation or warranty is
made solely as of a specified date, such representation or
warranty need only be true and correct in all material respects
as of such date. Gold Banc shall have performed in all material
respects all agreements and covenants required by this Agreement
to be performed by it on or prior to the Closing Date. The
Company shall have received a certificate signed by an executive
officer of Gold Banc, dated the Closing Date, to the foregoing
effects.
Section 7.2 Regulatory Authority Approval. Orders
and Consents in form and substance reasonably satisfactory to the
Company shall have been entered by or obtained from the
appropriate regulatory authorities authorizing consummation of
the transactions contemplated by this Agreement pursuant to the
provisions of the BHC Act and any other applicable Law.
Section 7.3 Litigation. There shall not be pending
or threatened any Action which the Company reasonably believes
would result in restraining, enjoining or prohibiting the
consummation of the transactions contemplated by this Agreement.
Section 7.4 Approval by Shareholders. The
shareholders of the Company shall have duly approved and adopted
this Agreement, the Merger and the transactions contemplated
hereby to the extent required by applicable Law and the Articles
of Incorporation and Bylaws of the Company and the Bank and shall
have terminated the shareholders agreement referred to in
Schedule 3.2(a)(ii) hereof, and the stockholders of Gold Banc
shall have duly approved and adopted this Agreement, the Merger
and the transactions contemplated hereby to the extent required
by applicable Law, the Articles of Incorporation and Bylaws of
Gold Banc.
Section 7.5 Adverse Changes. From the date hereof
to the Closing Date, there shall have been no Material Adverse
Change in Gold Banc, and taking into account for this purpose the
proceeds of any applicable insurance.
Section 7.6 Federal Tax Opinion. The Company shall
have received, at Gold Banc's expense, an opinion of Gold Banc's
Counsel, addressed to the Company and its shareholders in form
and substance reasonably satisfactory to the Company and
Company's Counsel, dated the Closing Date, to the effect that the
Merger will be a tax-free reorganization under Section 368(a) of
the Code and no gain or loss will be recognized by the
shareholders of the Company, except for recognition of gain or
loss with respect to cash paid to holders of Company Common Stock
who dissent from the Merger.
Section 7.7 Opinion of Counsel. The Company shall
have received, at Gold Banc's expense, an opinion of Gold Banc's
Counsel, dated the Closing Date, in form and substance reasonably
satisfactory to the Company, covering customary corporate law
matters.
Section 7.8 Market Price of Gold Banc Common Stock.
The Average Gold Banc Stock Price shall not be less than $10.50.
Section 7.9 Fairness Opinion. The Company shall
have received an opinion, dated the Closing Date, rendered by
Xxxxx Xxxxxxxx & Xxxxx, Inc., affirming and reissuing the
Investment Advisor Opinion, and stating that, in the opinion of
such firm, the Exchange Ratio is fair, from a financial point of
view, to the holders of the Company Common Stock, and that the
Investment Advisor Opinion is not withdrawn or
substantially qualified by Xxxxx Xxxxxxxx & Xxxxx, Inc.
ARTICLE VIII
CONDITIONS PRECEDENT TO OBLIGATIONS
OF GOLD BANC AND GOLD BANK
The obligations of Gold Banc to consummate the
transactions hereunder shall be subject to the satisfaction on or
before the Closing Date of all of the following conditions,
except such conditions as Gold Banc may waive in writing:
Section 8.1 Representations, Warranties and
Covenants. All representations and warranties of the Company
contained in this Agreement shall be true and correct in all
material respects on and as of the Closing Date, except for
changes permitted by or contemplated by this Agreement, and
except that to the extent any such representation or warranty is
made solely as of a specified date, such representation or
warranty need only be true and correct in all material respects
as of such date. The Company and the Bank shall have performed
in all material respects all agreements and covenants required by
this Agreement to be performed by it or him on or prior to the
Closing Date. Gold Banc shall have received a certificate signed
by an executive officer of the Company, dated the Closing Date,
to the foregoing effects.
Section 8.2 Adverse Changes. From the date hereof
to the Closing Date, there shall have been no Material Adverse
Change in the Company or the Bank.
Section 8.3 Regulatory Authority Approval. Orders
and Consents in form and substance reasonably satisfactory to
Gold Banc shall have been entered by or obtained from the
appropriate regulatory authorities authorizing consummation of
the transactions contemplated hereby pursuant to the provisions
of the BHC Act and any other applicable federal or state banking
regulatory statute or rule, and no such order, Consent or
approval shall be conditioned or restricted in any manner which
in the reasonable judgment of Gold Banc would materially
adversely affect the operations of or be unduly burdensome to
Gold Banc.
Section 8.4 Litigation. At the Closing Date, there
shall not be pending or threatened any Action which Gold Banc
reasonably believes would result in restraining, enjoining or
prohibiting the consummation of the transactions contemplated by
this Agreement.
Section 8.5 Financial Measures.
(a) On the Closing Date, the Total Equity Capital
of the Bank shall be not less than $10,000,000.00, and
the reserve for loan and lease loss of the Bank shall
be not less than 1.5% of the aggregate amount of all
outstanding loans.
(b) On the Closing Date, the Total Equity Capital
of the Company shall not be less than $6,700,000.00,
the total indebtedness (including Company Convertible
Debentures) of the Company (on an unconsolidated basis)
shall not exceed $4,000,000.00, and the cash and cash
equivalents of the Company shall not be less than
$1,900,000.00 (minus the amount thereof used to pay
down indebtedness of the Company).
(c) The parties acknowledge and agree that all
future earnings from the date hereof forward shall
accrue to the retained earnings or reserves of the
Company or the Bank, respectively, and shall not result
in an increase of any consideration payable by Gold
Banc or Gold Bank hereunder.
Section 8.6 Approval by Shareholders. The
shareholders of the Company shall have duly approved and adopted
this Agreement and the other transactions contemplated hereby to
the extent required by applicable Law and the Articles of
Incorporation and Bylaws of the Company and shall have terminated
the shareholders agreement referred to in Schedule 3.2(a)(ii)
hereof, and the shareholders of Gold Banc shall have duly
approved and adopted this Agreement and the other transactions
contemplated hereby to the extent required by applicable Law, the
Articles of Incorporation and Bylaws of Gold Banc.
Section 8.7 Tax Representations. The Company and
each shareholder of the Company owning more than 10% of the
outstanding Company Common Stock shall have made those
representations reasonably requested by Gold Banc's Counsel and
necessary to enable Gold Banc's Counsel to render the opinion
described in Section 8.10 hereof.
Section 8.8 Affiliate Letters. Each person who is
an "affiliate" (for purposes of Rule 145 under the Securities Act
and for pooling-of-interests accounting treatment) of the Company
and the Bank at the time this Agreement is submitted to approval
of the shareholders of the Company and the Bank shall deliver to
Gold Banc a letter in substantially the form set forth in Exhibit
B (the "Affiliate Letter") hereto.
Section 8.9 Satisfactory Due Diligence.
Representatives of the Company and the Bank shall have cooperated
with Gold Banc, Gold Bank and representatives of Gold Banc and
Gold Bank in conducting its due diligence in accordance with the
terms of Section 5.3 above.
Section 8.10 Federal Tax Opinion. Gold Banc shall
have received an opinion of Gold Banc's Counsel, in form and
substance reasonably satisfactory to Gold Banc, dated the Closing
Date, stating that the Merger will be treated as a tax-free
reorganization within the meaning of Section 368(a) of the Code,
subject to required recognition of gain or loss with respect to
cash paid to holders of Company Common Stock who dissent from the
Merger.
Section 8.11 Opinion of Counsel. Gold Banc shall
have received an opinion of Company's Counsel, dated the Closing
Date, in form and substance reasonably satisfactory to Gold Banc
and Gold Banc's Counsel covering customary corporate law matters.
Section 8.12 Qualification for Pooling-of-Interests
Treatment.
(a) Gold Banc shall have received an opinion from
Gold Banc's Accountants that the transactions
contemplated hereby will qualify for pooling
of-interest accounting treatment and that all conditions
applicable thereto (including limitation of any cash
consideration paid by Gold Banc hereunder and absence
of any capital transactions involving any parties
hereto) have been met.
(b) The Company shall have obtained from the
Company's Accountants and delivered to Gold Banc a
letter, dated the Closing Date, affirming the accuracy
of their Pooling Letter.
Section 8.13 Employment and Non-Compete Agreements.
Xxxxxxxxx X. Xxxxxx, Xx., Xxxxxxxx X. Xxxxxxxx, Xxxxxx X. Xxxxx
and Xxxx X. Xxxxxxxxxxx shall have executed and delivered to Gold
Banc Employment and Non-Compete Agreements in form and substance
reasonably satisfactory to Gold Banc.
Section 8.14 Company Options. Neither the Company's
Board of Directors nor any committee thereof shall have
authorized any cash payment in connection with any outstanding
Company Stock Option, and each member of each committee empowered
to act with respect to any stock option plan shall have resigned.
Section 8.15 Dissenting Shareholders. Company
Dissenting Shares shall not constitute more than 5% of the
outstanding shares of Company Common Stock on the Closing Date.
ARTICLE IX
NON-SURVIVAL OF REPRESENTATIONS AND WARRANTIES
Section 9.1 No Survival of Representations and
Warranties. The representations and warranties contained herein
shall not survive after the Effective Time. The representations
and warranties contained herein shall not be deemed modified or
waived by any investigation made by the party(ies) entitled to
the benefit of such representations and warranties or by their
representatives. Except as otherwise provided herein, any waiver
or modification of any representation or warranty shall be
effective only if made in writing and signed by the party(ies)
entitled to the benefit of such representation or warranty.
ARTICLE X
SECURITIES LAWS MATTERS
Section 10.1 Registration Statement and Proxy
Statement. Gold Banc shall, at Gold Banc's expense, as soon as
practicable prepare and file a registration statement on Form S-4
to be filed with the SEC pursuant to the Securities Act for the
purpose of registering the shares of Gold Banc Common Stock to be
issued in the Merger and the Bank Merger (the "Registration
Statement"). The Company and Gold Banc shall each provide
promptly to the other such information concerning their
respective businesses, financial conditions, and affairs as may
be required or appropriate for inclusion in the Registration
Statement or the proxy statement to be used in connection with
the special shareholders' meetings of the Company, the Bank, Gold
Banc and Gold Bank to be called for the purpose of considering
and voting on the Merger and the Bank Merger (the "Proxy
Statement"). The Company, the Bank, Gold Banc and Gold Bank
shall each cause their counsel, auditors and other experts to
cooperate with the other's counsel, auditors and other experts in
the preparation and filing of the Registration Statement and the
Proxy Statement. Gold Banc shall not include in the Registration
Statement any information concerning the Company or the Bank to
which the Company shall reasonably and timely object in writing.
Gold Banc and the Company shall use their reasonable best efforts
to have the Registration Statement declared effective under the
Securities Act as soon as may be practicable and thereafter each
of the Company and the Bank shall distribute the Proxy Statement
to its shareholders in accordance with applicable laws not fewer
than twenty (20) business days prior to the date on which this
Agreement or the Bank Merger Agreement is to be submitted to its
shareholders for voting thereon. If necessary, in light of
developments occurring subsequent to the distribution of the
Proxy Statement, Gold Banc shall prepare and file such amendments
or supplements to the Registration Statement and the Proxy
Statement and the Company and the Bank shall mail or otherwise
furnish to its shareholders such amendments or supplements to the
Proxy Statement as may, in the reasonable opinion of Gold Banc or
the Company, be necessary so that the Proxy Statement, as so
amended or supplemented, will contain no untrue statement of any
material fact and will not omit to state any material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were
made, not misleading, or as may be necessary to comply with
applicable law. Gold Banc shall not be required to maintain the
effectiveness of the Registration Statement after delivery of the
Gold Banc Common Stock issued pursuant to the Merger and the Bank
Merger for the purpose of resale of Gold Banc Common Stock by any
Person. For a period of at least two years from the Effective
Time, Gold Banc shall make available "adequate current public
information" within the meaning of and as required by paragraph
(c) of Rule 144 adopted pursuant to the Securities Act.
Section 10.2 State Securities Laws. The parties
hereto shall cooperate in making any filings required under the
securities laws of any state in order to qualify or register the
Gold Banc Common Stock so it may be offered and sold lawfully in
such state in connection with the Merger and the Bank Merger or
to obtain an exemption from such qualification or registration.
Section 10.3 Publication of Combined Financial
Results. Gold Banc shall publish financial results covering at
least 30 days of post-Merger combined operations of Gold Banc and
the Company, ending on a normal month-end closing date, as soon
as practicable after the Effective Time, but in any event no
later than 20 days following such month-end closing date, unless
the first 30 day period of combined operations ending on a normal
month-end closing date ends on the normal closing date of an
annual report on Form 10-K or quarterly report on Form 10-Q.
Section 10.4 Affiliates. Certificates representing
shares of Gold Banc Common Stock issued to "Affiliates" (as
defined in Rules 145 and 405 adopted under the Securities Act) of
the Company pursuant to this Agreement will be subject to stop
transfer orders (as reasonably required in connection with Rule
145) and will bear a restrictive legend set out in the Affiliate
Letter; provided, however, that following publication of
financial results covering at least thirty (30) days of combined
operations of Gold Banc and the Company and upon receipt of an
opinion of counsel reasonably satisfactory to Gold Banc that a
proposed sale, pledge, transfer or other disposition of a
specified number of shares of Gold Banc Common Stock by an
Affiliate will comply with or will be exempt from the Securities
Act, Gold Banc shall, as promptly as practicable after receipt of
the stock certificates representing such Affiliate's Gold Banc
Common Stock (and in any event within seven (7) business days
after such receipt), direct the transfer agent for the Gold Banc
Common Stock to remove the stop transfer order related thereto
and reissue a stock certificate evidencing such shares to the
Affiliate without such restrictive legend.
Section 10.5 Indemnification by Gold Banc. Gold Banc
agrees to indemnify and hold harmless the Company and its
directors, officers, employees, representatives and agents from
and against any and all Damages, whether arising under federal or
state securities or Blue Sky laws or otherwise, which may be
asserted against any of them and which arise as a result of any
alleged act or failure to act, or any alleged statement or
omission, of Gold Banc done or made in connection with the
Registration Statement, Proxy Statement, Tender Offer materials,
or any other statement or form filed or required to be filed with
the SEC or any state securities department or delivered or
required to be delivered to the holders of Company Common Stock,
Bank Common Stock or Gold Banc Common Stock except to the extent
any such alleged act, failure to act, statement or omission is a
result of information provided by the Company.
Section 10.6 Indemnification by the Company. The
Company agrees to indemnify and hold harmless Gold Banc and its
directors, officers, employees, representatives and agents from
and against any and all Damages, whether arising under federal or
state securities or Blue Sky laws or otherwise, which may be
asserted against any of them and which arise as a result of any
alleged act or failure to act, or any alleged statement or
omission, of the Company or any Subsidiary done or made in
connection with the Registration Statement, Proxy Statement, or
any other statement or form filed or required to be filed with
the SEC or any state securities department or delivered or
required to be delivered to the holders of Company Common Stock
or Gold Banc Common Stock except to the extent any such alleged
act, failure to act, statement or omission is a result of
information provided by Gold Banc.
ARTICLE XI
TERMINATION
Section 11.1 Basis for Termination. This Agreement
and the Merger contemplated hereby may be terminated at any time
prior to the Closing Date:
(a) by mutual consent in writing of the parties
hereto;
(b) by either party if the transactions
contemplated hereby have not closed by April 30, 2000;
provided, however, that the right to terminate this
Agreement pursuant to this Section 11.1(b) shall not be
available to any party whose failure to fulfill any
obligations under this Agreement has been the cause of,
or resulted in the failure of the Merger to be
consummated on or before such date;
(c) by Gold Banc or the Company upon written
notice to the other if any regulatory approval of the
transactions contemplated under the terms of this
Agreement shall be denied, or by Gold Banc if any such
regulatory approval shall be conditioned or restricted
in any manner which in the reasonable judgment of Gold
Banc would materially adversely affect the operations
of or would be unduly burdensome to Gold Banc;
(d) by Gold Banc or the Company, as the case may
be, (i) if any of the conditions precedent to the
performance of the obligations of the party giving
notice of termination shall not have been fulfilled and
cannot be fulfilled in all material respects on or
prior to the Closing Date and shall not have been
waived in writing by such party; or (ii) if a material
breach or material default shall be made by the other
party in observance or in the due and timely
performance of any material covenant or agreement
herein contained that cannot be cured on or prior to
the Closing Date or, if capable of being cured, has not
been cured within thirty (30) days after the party for
whose benefit this Agreement or covenant was made, has
given written notice to the other party of such breach
or default, and shall not have been waived in writing
by such party; or (iii) if there exists any material
inaccuracy, material misrepresentation or material
breach of a representation or warranty made herein by
the other party which has not been waived in writing by
the party for whose benefit such warranty or
representation was made or given;
(e) by the Company if it receives an unsolicited
Acquisition Proposal as contemplated by Section 5.7
hereof, which the Board of Directors of the Company, in
good faith, believes is superior to the Merger
contemplated hereby;
(f) by Gold Banc upon receipt of written notice
from the Company pursuant to Section 5.7(b) hereof that
the Company has entered into an agreement to
engage in a transaction relating to an Acquisition
Proposal with any Person other than Gold Banc or its
affiliates or the Company's Board of Directors or any
committee thereof has endorsed, approved or recommended
an Acquisition Proposal made by any Person other than
Gold Banc or its affiliates;
(g) by either party, if the stockholders of the
Company fail to vote their approval of this Agreement
and the Merger contemplated hereby as required under
the MBCL at the shareholder meetings held pursuant to
Section 10.1 of this Agreement; or
As used in this Section 11.1, actions contemplated as being taken
by Gold Banc or the Company must be taken by their respective
Boards of Directors or the executive committee of such Boards.
Section 11.2 Effect of Termination. Except in the
event of a termination of this Agreement pursuant to Section
11.1(d)(ii) or (iii) or Section 11.3 hereof, there shall be no
liability on the parties hereto or any of their respective
directors, officers or shareholders as a result thereof under
this Agreement. A termination under Section 11.1(d)(ii) or (iii)
hereof shall not prejudice any claim for damages which any party
may have hereunder or in law or in equity as a consequence of any
matter giving rise to such a termination of the Agreement.
Sections 5.15, 6.6, 10.5, 10.6, 11.2, 11.3, 12.3 and 12.7 shall
survive termination of this Agreement.
Section 11.3 Termination Fee; Other Fees.
(a) The Company agrees to pay to Gold Banc upon
demand a termination fee of One Million Five Hundred
Thousand Dollars ($1,500,000) (the "Termination Fee")
if this Agreement is terminated (i) by the Company
pursuant to Section 11.1(e) or (ii) by Gold Banc
pursuant to Section 11.1(f), and in such event,
collection of the Termination Fee shall be the sole and
exclusive remedy available to Gold Banc.
(b) If this Agreement is terminated by the
Company as a result of Gold Banc's failure or breach
under Section 11.1(d)(ii) or (iii), then Gold Banc
shall reimburse the Company for its reasonable
out-of-pocket expenses relating to the Merger (including,
without limitation, the fees and expenses of the
Company's Counsel, the Company's Accountants and Xxxxx
Brayette & Xxxxx, Inc. (other than performance fees));
provided, however, that such reimbursement shall not
constitute the exclusive remedy available to the
Company for any such failure or breach on the part of
Gold Banc and shall not serve as liquidated damages
therefor, and shall be cumulative to all other remedies
available to the Company under this Agreement and under
applicable Law.
(c) If this Agreement is terminated by Gold Banc
as a result of the Company's failure or breach under
Section 11.1(d)(ii) or (iii), then the Company
shall reimburse Gold Banc for its reasonable
out-of-pocket expenses relating to the Merger (including
without limitation the fees and expenses of Gold Banc's
Counsel, Gold Banc's Accountants and Gold Banc's
investment bankers, SEC fees and printing fees);
provided, however, that such reimbursement shall not
constitute the exclusive remedy available to Gold Banc
for any such failure or breach on the part of the
Company and shall not serve as liquidated damages
therefor, and shall be cumulative to all other remedies
available to Gold Banc under this Agreement and under
applicable Law; provided, further that, in the absence
of fraud or wilful misconduct, except with respect to
reimbursement for Gold Banc's out-of-pocket expenses,
the Company shall not be liable for a breach of the
representation set forth in Section 3.26 or the
covenant set forth in Section 5.12(b).
(d) If this Agreement is terminated by Gold Banc
pursuant to Section 11.1(c), then Gold Banc shall
reimburse the Company for its reasonable legal fees
relating to the Merger, and in such event, collection
of such legal fees shall be the sole and exclusive
remedy available to the Company.
Section 11.4 Specific Performance.
(a) Subject to Section 11.1, in the event Gold
Banc and Gold Bank have performed all of their
obligations hereunder and all conditions precedent to
the obligation of the Company to close have been met or
waived in writing by the Company, but the Company fails
or otherwise refuses to close, then Gold Banc shall be
entitled to enforce the terms hereof by an Action
seeking specific performance. Such right is not
exclusive and shall not preclude Gold Banc from also
pursuing an Action to recover any and all damages
resulting from the Company's default hereunder, except
to the extent provided in Section 11.3(c).
(b) Subject to Section 11.1, in the event the
Company and the Bank have performed all of their
obligations hereunder and all conditions precedent to
the obligations of Gold Banc and Gold Bank to close
have been met or waived in writing by Gold Banc and
Gold Bank, but Gold Banc and Gold Bank fail or
otherwise refuse to close, then the Company shall be
entitled to enforce the terms hereof by an Action
seeking specific performance. Such right is not
exclusive and shall not preclude the Company from also
pursuing an Action to recover any and all damages
resulting from the default by Gold Banc and Gold Bank
hereunder.
ARTICLE XII
MISCELLANEOUS
Section 12.1 Amendment. 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 the matters presented in connection with the Merger
by the shareholders of Company or Gold Banc, but, after any
such approval, no amendment shall be made which by law requires
further approval by such shareholders without such further
approval. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties
hereto.
Section 12.2 Extension; Waiver. At any time prior to
the Effective Time, the parties hereto, by action taken or
authorized by their respective Board of Directors, may, to the
extent legally allowed, (a) extend the time for the performance
of any of the obligations or other acts of the other parties
hereto, (b) waive any inaccuracies in the representations and
warranties contained herein or in any document delivered pursuant
hereto and (c) waive compliance with any of the agreements or
conditions contained herein. Any agreement by a party hereto to
any such extension or waiver shall be valid only if set forth in
a written instrument signed on behalf of such party.
Section 12.3 Expenses. Except as set forth herein,
each party shall be responsible for its own expenses in
connection with this transaction. Specifically, each party shall
be responsible for their own legal, accounting and investment
banking fees and any related costs or charges associated with the
negotiation, execution and consummation of this Agreement.
Section 12.4 Parties in Interest. This Agreement and
the rights hereunder are not assignable unless such assignment is
consented to in writing by all parties hereto. Except as
otherwise expressly provided herein, all of the terms and
provisions of this Agreement shall be binding upon, shall inure
to the benefit of and shall be enforceable by the respective
heirs, beneficiaries, personal and legal representatives,
successors and permitted assigns of the parties hereto. Except
as expressly provided herein, nothing in this Agreement, express
or implied, is intended to confer on any person other than the
parties hereto or their respective successors and assigns, any
rights, remedies or obligations or liabilities under or by reason
of this Agreement.
Section 12.5 Entire Agreement; Amendments; Waiver.
This Agreement contains the entire understanding of Gold Banc and
the Company with respect to the Merger and supersedes all prior
agreements and understandings, whether written or oral, between
them with respect to the Merger contemplated herein. This
Agreement may be amended only by a written instrument duly
executed by the parties or their respective successors or
permitted assigns. Any condition to a party's obligation
hereunder may be waived by such party in writing.
Section 12.6 Notices. All notices, requests, demands
or other communications hereunder shall be in writing and shall
be deemed to have been duly given (a) when personally delivered,
(b) on the first Business Day following the Business Day on which
delivered to a nationally recognized overnight delivery service,
(c) if sent by facsimile transmission, on the date that
transmission is received by a responsible employee of the
recipient in legible form (it being agreed that the burden of
proving receipt will be on the sender and will not be met by a
transmission report generated by the sender's facsimile machine)
or (d) if sent by certified or registered mail, return receipt
requested, on the Business Day that it is delivered or its
delivery is attempted, in any case addressed to the parties
at the following addresses or at such other address as shall be
given in like manner by any party to the other:
If to the Company:
Xxxxxxxxx X. Xxxxxx, Xx.
First Business Bancshares of Kansas City, Inc.
000 Xxxx 00xx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
FAX: (000) 000-0000
with a copy to:
Xxxxxx X. Xxxxxxxx
Spencer, Fane, Xxxxx & Xxxxxx LLP
1400 Commerce Bank Bldg.
0000 Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000-0000
Telephone: (000) 000-0000
FAX: (000) 000-0000
If to Gold Banc:
Xxxxxxx X. Xxxxx
Gold Banc Corporation, Inc.
00000 Xxxx Xxxxxx
Xxxxxxx, XX 00000
Telephone: (000) 000-0000
FAX: (000) 000-0000
with a copy to:
Xxxxxxx X. Xxxxxxxx
Xxxxxxx, Mag & Fizzell, P.C.
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx Xxxx, XX 00000
Telephone: (000) 000-0000
FAX: (000) 000-0000
Section 12.7 Law Governing. This Agreement shall be
governed by and construed and enforced in accordance with the
laws of the State of Kansas.
IN WITNESS WHEREOF, the parties hereto have duly executed
this Agreement as of the date first above written.
GOLD BANC CORPORATION, INC.
By: _______________________________
Name: Xxxxxxx X. Xxxxx
Title: President
ATTEST:
______________________________
Name: Xxxxx X. Xxxxxxx
Title: Secretary
FIRST BUSINESS BANCSHARES OF KANSAS
CITY, INC.
By: ______________________________
Name: Xxxxxxxxx X. Xxxxxx, Xx.
Title: President and CEO
ATTEST:
______________________________
Name: Xxxxx X. Xxxxxxxx
Title: Secretary
STATE OF ______________ )
) ss.
COUNTY OF _____________ )
ON THIS 19th day of October, 1999, before me the
undersigned, a Notary Public in and for the County and the
aforesaid, came Xxxxxxx X. Xxxxx, President of Gold Banc
Corporation, Inc., a Kansas corporation, and Xxxxx X. Xxxxxxx,
Secretary, who are personally known to me to be such persons, and
who is personally known to me to be the same persons who executed
the within instrument on behalf of said corporation, and such
persons duly acknowledged the execution of the same to be the act
and deed of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed
my official seal, the day and year last above written.
_______________________________
NOTARY PUBLIC
My Appointment Expires:
_______________________
STATE OF _______________ )
) ss.
COUNTY OF ______________ )
ON THIS 19th day of October, 1999, before me the
undersigned, a Notary Public in and for the County and state
aforesaid, came Xxxxxxxxx X. Xxxxxx, Xx., President and CEO of
First Business Bancshares of Kansas City, Inc., a Missouri
corporation, and Xxxxx X. Xxxxxxxx, Secretary, who are personally
known to me to be such persons, and who is personally known to me
to be the same persons who executed the within instrument on
behalf of said corporation, and such persons duly acknowledged
the execution of the same to be the act and deed of said
corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed
my official seal, the day and year last above written.
_______________________________
NOTARY PUBLIC
My Appointment Expires:
_______________________
EXECUTION COPY
________________________________________________________________
________________________________________________________________
AGREEMENT AND PLAN OF REORGANIZATION
By and Among
GOLD BANC CORPORATION, INC.
and
FIRST BUSINESS BANCSHARES OF KANSAS CITY, INC.
October 19, 1999
_________________________________________________________________
_________________________________________________________________
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS. . . . . . . . . . . . . . . . . . . . . .1
Section 1.1 Defined Terms . . . . . . . . . . . . .1
Section 1.2 Construction. . . . . . . . . . . . . .7
ARTICLE II
THE COMPANY MERGER . . . . . . . . . . . . . . . . . .7
Section 2.1 The Merger. . . . . . . . . . . . . . .7
Section 2.2 Effective Time of the Merger; Closing .8
Section 2.3 Articles of Incorporation, Bylaws,
Directors and Officers. . . . . . . . .8
Section 2.4 Effect of Merger. . . . . . . . . . . .8
Section 2.5 Taking Necessary Action;
Further Assurances. . . . . . . . . . .8
Section 2.6 Effect of Merger on Gold Banc Common
Stock . . . . . . . . . . . . . . . . .9
Section 2.7 Effect of Merger on Company Common
Stock . . . . . . . . . . . . . . . . .9
Section 2.8 Dissenting Shares.. . . . . . . . . . .9
Section 2.9 Exchange of Certificates. . . . . . . 10
Section 2.10 Closing of the Company Transfer
Books . . . . . . . . . . . . . . . . 11
Section 2.11 Dividends . . . . . . . . . . . . . . 11
Section 2.12 Shareholders Approval.. . . . . . . . 11
Section 2.13 The Bank Merger. . . . . . . . . . . 12
Section 2.14 Adjustments . . . . . . . . . . . . . 12
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY. . . . 12
Section 3.1 Organization and Good Standing. . . . 12
Section 3.2 Capital Structure . . . . . . . . . . 13
Section 3.3 Authority . . . . . . . . . . . . . . 14
Section 3.4 Shareholder Approval. . . . . . . . . 14
Section 3.5 No Violations . . . . . . . . . . . . 15
Section 3.6 Financial Statements. . . . . . . . . 16
Section 3.7 Information Supplied. . . . . . . . . 16
Section 3.8 Internal Controls and Records . . . . 17
Section 3.9 Taxes . . . . . . . . . . . . . . . . 17
Section 3.10 Title to Assets . . . . . . . . . . . 17
Section 3.11 Leases. . . . . . . . . . . . . . . . 18
Section 3.12 Intangible Properties . . . . . . . . 18
Section 3.13 Regulatory Filings. . . . . . . . . . 19
Section 3.14 Insurance . . . . . . . . . . . . . . 19
Section 3.15 Compliance with ERISA . . . . . . . . 20
Section 3.16 Environmental Laws. . . . . . . . . . 20
Section 3.17 Labor Matters . . . . . . . . . . . . 21
Section 3.18 Year 2000 Compliance. . . . . . . . . 22
Section 3.19 Legal Proceedings . . . . . . . . . . 22
Section 3.20 Contracts . . . . . . . . . . . . . . 22
Section 3.21 Required Consents . . . . . . . . . . 23
Section 3.22 Broker's Fees . . . . . . . . . . . . 23
Section 3.23 No Material Adverse Change. . . . . . 23
Section 3.24 Loans . . . . . . . . . . . . . . . . 23
Section 3.25 Opinion of Financial Advisors . . . . 23
Section 3.26 Accounting Matters. . . . . . . . . . 24
Section 3.27 Beneficial Ownership of Gold Banc
Common Stock. . . . . . . . . . . . . 24
Section 3.28 Accruals. . . . . . . . . . . . . . . 24
Section 3.29 Company Convertible Debentures. . . 24
Section 3.30 Undisclosed Liabilities; Adverse
Agreements. . . . . . . . . . . . . . 25
Section 3.31 Absence of Certain Events . . . . . . 25
Section 3.32 Disclosure. . . . . . . . . . . . . . 25
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF GOLD BANC. . . . . 26
Section 4.1 Corporate . . . . . . . . . . . . . . 26
Section 4.2 Capital Structure . . . . . . . . . . 26
Section 4.3 Authority . . . . . . . . . . . . . . 27
Section 4.4 Shareholder Approval. . . . . . . . . 27
Section 4.5 Status of Gold Banc Common Stock to be
Issued. . . . . . . . . . . . . . . . 28
Section 4.6 No Violation. . . . . . . . . . . . . 28
Section 4.7 SEC Documents . . . . . . . . . . . . 29
Section 4.8 Information Supplied. . . . . . . . . 30
Section 4.9 Taxes . . . . . . . . . . . . . . . . 30
Section 4.10 Regulatory Filings. . . . . . . . . . 31
Section 4.11 Legal Proceedings . . . . . . . . . . 31
Section 4.12 Required Consents . . . . . . . . . . 31
Section 4.13 Broker's Fees . . . . . . . . . . . . 31
Section 4.14 Year 2000 Compliance. . . . . . . . . 31
Section 4.15 No Material Adverse Change. . . . . . 32
Section 4.16 Undisclosed Liabilities; Adverse
Agreements. . . . . . . . . . . . . . 32
Section 4.17 Disclosure. . . . . . . . . . . . . . 32
ARTICLE V
COVENANTS OF COMPANY . . . . . . . . . . . . . . . . 32
Section 5.1 Affirmative Covenants of the Company. 32
Section 5.2 Negative Covenants of the Company . . 33
Section 5.3 Inspection. . . . . . . . . . . . . . 35
Section 5.4 Financial Statements and Call
Reports . . . . . . . . . . . . . . . 35
Section 5.5 Right to Attend Meetings. . . . . . . 35
Section 5.6 Data Processing . . . . . . . . . . . 36
Section 5.7 No Solicitation . . . . . . . . . . . 36
Section 5.8 Regulatory Approvals. . . . . . . . . 37
Section 5.9 Information . . . . . . . . . . . . . 37
Section 5.10 Tax Returns . . . . . . . . . . . . . 37
Section 5.11 Tax-Free Reorganization Treatment . . 37
Section 5.12 Pooling-of-Interests Accounting
Treatment . . . . . . . . . . . . . . 38
Section 5.13 Cooperation by the Company. . . . . . 38
Section 5.14 Year 2000 Compliance. . . . . . . . . 38
Section 5.15 Confidentiality.. . . . . . . . . . . 38
Section 5.16 Employee Benefit Plans. . . . . . . . 39
Section 5.17 Legal Proceedings.. . . . . . . . . . 39
Section 5.18 Regarding Company Convertible
Debentures. . . . . . . . . . . . . . 39
Section 5.19 Bank Merger. . . . . . . . . . . . . 40
Section 5.20 Amendment of Company Convertible
Debentures. . . . . . . . . . . . . . 40
ARTICLE VI
COVENANTS OF GOLD BANC . . . . . . . . . . . . . . . 40
Section 6.1 Regulatory Approvals. . . . . . . . . 40
Section 6.2 Information . . . . . . . . . . . . . 40
Section 6.3 Tax-Free Reorganization Treatment . . 40
Section 6.4 Employee Benefit Plans; Prior
Service Credit. . . . . . . . . . . . 40
Section 6.5 Assumption of Company Stock Options.. 41
Section 6.6 Confidentiality.. . . . . . . . . . . 41
Section 6.7 Pooling-of-interests Accounting
Treatment. . . . . . . . . . . . . . 41
Section 6.8 Cooperation by Gold Banc. . . . . . . 41
Section 6.9 Year 2000 Compliance. . . . . . . . . 41
Section 6.10 Legal Proceedings . . . . . . . . . . 42
Section 6.11 Employment Agreements . . . . . . . . 42
ARTICLE VII
CONDITIONS PRECEDENT TO OBLIGATIONSOF THE COMPANY. . 42
Section 7.1 Representations, Warranties and
Covenants . . . . . . . . . . . . . . 42
Section 7.2 Regulatory Authority Approval . . . . 42
Section 7.3 Litigation. . . . . . . . . . . . . . 42
Section 7.4 Approval by Shareholders. . . . . . . 43
Section 7.5 Adverse Changes . . . . . . . . . . . 43
Section 7.6 Federal Tax Opinion . . . . . . . . . 43
Section 7.7 Opinion of Counsel. . . . . . . . . . 43
Section 7.8 Market Price of Gold Banc Common
Stock.. . . . . . . . . . . . . . . . 43
Section 7.9 Fairness Opinion. . . . . . . . . . . 43
ARTICLE VIII
CONDITIONS PRECEDENT TO OBLIGATIONS OF
GOLD BANC AND GOLD BANK. . . . . . . . . . . . . . . 43
Section 8.1 Representations, Warranties and
Covenants . . . . . . . . . . . . . . 44
Section 8.2 Adverse Changes . . . . . . . . . . . 44
Section 8.3 Regulatory Authority Approval . . . . 44
Section 8.4 Litigation. . . . . . . . . . . . . . 44
Section 8.5 Financial Measures. . . . . . . . . . 44
Section 8.6 Approval by Shareholders. . . . . . . 45
Section 8.7 Tax Representations . . . . . . . . . 45
Section 8.8 Affiliate Letters . . . . . . . . . . 45
Section 8.9 Satisfactory Due Diligence. . . . . . 45
Section 8.10 Federal Tax Opinion . . . . . . . . . 45
Section 8.11 Opinion of Counsel. . . . . . . . . . 45
Section 8.12 Qualification for Pooling-of-Interests
Treatment . . . . . . . . . . . . . . 45
Section 8.13 Employment and Non-Compete
Agreements . . . . . . . . . . . . . 46
Section 8.14 Company Options.. . . . . . . . . . . 46
Section 8.15 Dissenting Shareholders.. . . . . . . 46
ARTICLE IX
NON-SURVIVAL OF REPRESENTATIONS AND WARRANTIES . . . 46
Section 9.1 No Survival of Representations and
Warranties. . . . . . . . . . . . . . 46
ARTICLE X
SECURITIES LAWS MATTERS. . . . . . . . . . . . . . . 46
Section 10.1 Registration Statement and Proxy
Statement . . . . . . . . . . . . . . 46
Section 10.2 State Securities Laws . . . . . . . . 47
Section 10.3 Publication of Combined Financial
Results . . . . . . . . . . . . . . . 47
Section 10.4 Affiliates. . . . . . . . . . . . . . 47
Section 10.5 Indemnification by Gold Banc. . . . . 48
Section 10.6 Indemnification by the Company. . . . 48
ARTICLE XI
TERMINATION. . . . . . . . . . . . . . . . . . . . . 48
Section 11.1 Basis for Termination . . . . . . . . 48
Section 11.2 Effect of Termination . . . . . . . . 50
Section 11.3 Termination Fee; Other Fees . . . . . 50
Section 11.4 Specific Performance. . . . . . . . . 51
ARTICLE XII
MISCELLANEOUS . . . . . . . . . . . . . . . . . . . 51
Section 12.1 Amendment . . . . . . . . . . . . . . 51
Section 12.2 Extension; Waiver . . . . . . . . . . 51
Section 12.3 Expenses. . . . . . . . . . . . . . . 52
Section 12.4 Parties in Interest . . . . . . . . . 52
Section 12.5 Entire Agreement; Amendments;
Waiver. . . . . . . . . . . . . . . . 52
Section 12.6 Notices . . . . . . . . . . . . . . . 52
Section 12.7 Law Governing . . . . . . . . . . . . 53
LIST OF SCHEDULES
COMPANY SCHEDULES:
Schedule 3.2(a)(i) Company Stock Options
Schedule 3.2(a)(ii) Shareholder Agreements
Schedule 3.2(b) Liens
Schedule 3.5(a) Violations
Schedule 3.10(a) Title to Assets
Schedule 3.10(b) Real Property Owned or Leased
Schedule 3.11(a)(i) Real Property Leases
Schedule 3.11(a)(ii) Real Property Lease Consents
Schedule 3.11(b)(i) Personal Property Leases
Schedule 3.11(b)(ii) Consents for Personal Property Leases
Schedule 3.12(c) Intangible Properties
Schedule 3.15 Employee Benefit Plans
Schedule 3.19 Company Legal Proceedings
Schedule 3.20 Contracts
Schedule 3.21 Required Consents of Company
Schedule 3.22 Brokerage Fees
Schedule 3.23 Material Adverse Changes of Company
Schedule 3.24(b) Affiliate Loans
Schedule 3.31 Absence of Certain Events
Schedule 5.2(e) Contemplated Dividends
Schedule 5.2(h) New Lines of Business
GOLD BANC SCHEDULES:
Schedule 4.11 Gold Banc Legal Proceedings
Schedule 4.12 Required Consents of Gold Banc
Schedule 4.15 Material Adverse Changes of Gold Banc
EXHIBITS
EXHIBIT A Bank Merger Agreement
EXHIBIT B Form of Affiliate Letter
EXECUTION COPY
BANK MERGER AGREEMENT
THIS BANK MERGER AGREEMENT (this "Agreement"), dated as
of October __, 1999, is made by and between FIRST BUSINESS BANK
OF KANSAS CITY, N.A., a national banking association (the "Bank")
and a subsidiary of First Business Bancshares of Kansas City,
Inc., a Missouri corporation ("Company"), and GOLD BANK, N.A., a
national banking association ("Gold Bank") and a subsidiary of
Gold Banc Corporation, Inc., a Kansas corporation ("Gold Banc").
The principal banking office of the Bank is located at 000 X.
00xx Xx., Xxxxxx Xxxx, Xxxxxxxx 00000. The principal banking
office of Gold Bank is located at 00000 Xxxx Xxxxxx, Xxxxxxx,
Xxxxxx 00000.
RECITALS
A. Gold Banc and the Company are entering into an
Agreement and Plan of Reorganization, dated as of October 19,
1999 (the "Merger Agreement"), which provides, among other
things, that the Company will merge with and into Gold Banc (the
"Merger"). Capitalized terms used herein that are not otherwise
defined herein shall have the meanings given to such terms in the
Merger Agreement.
B. The parties hereto desire that the Bank shall
merge with and into Gold Bank upon the terms and conditions
hereinafter set forth, and in accordance with the laws and
regulations of the Office of the Comptroller of the Currency
("OCC") and any other applicable federal or state regulator.
C. The majority of the entire boards of directors of
the Bank and of Gold Bank deem it advisable and in the best
interests of their respective companies and stockholders that the
Bank merge with and into Gold Bank (the "Bank Merger"), and have
approved this Agreement and authorized its execution.
AGREEMENT
ACCORDINGLY, in consideration of the premises, the
mutual covenants and agreements set forth herein, and other good
and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
THE BANK MERGER
Section 1.1 The Bank Merger. At the Bank Merger
Effective Time (as hereinafter defined), in accordance with the
provisions of this Agreement, the Bank shall be merged with and
into Gold Bank under the Articles of Association of Gold Bank,
pursuant to the rules and regulations of the OCC, and any
other applicable federal or state regulator. Upon the Bank
Merger Effective Time, the name of the banking corporation
(sometimes hereinafter referred to as the "Continuing Bank"
whenever reference is made to it as of the time of the Bank
Merger or thereafter) shall be "Gold Bank, N.A." The business of
the Continuing Bank shall be that of a national banking
association. The principal office of Gold Bank shall become the
principal office of the Continuing Bank.
Section 1.2 Bank Merger Effective Time. The Bank
Merger shall become effective upon the receipt of the required
approvals from and the filing of all notices and required
documentation with the OCC or any other applicable federal or
state regulators (the "Bank Merger Effective Time").
Section 1.3 Effect of Bank Merger. From and after the
Bank Merger Effective Time, the Bank Merger shall have the
effects on the Bank and Gold Bank set forth in Section 215a(e) of
the National Bank Act ("NBA").
Section 1.4 Articles of Agreement and Bylaws. At the
Bank Merger Effective Time, the Articles of Association of Gold
Bank in effect immediately prior to the Bank Merger Effective
Time shall continue in full force and effect as the Articles of
Association of the Continuing Bank and the Bylaws of Gold Bank
shall become and continue to be the Bylaws of the Continuing
Bank, until either shall be amended and changed as provided by
Law.
Section 1.5 Officers. The officers of the Continuing
Bank shall be those persons who are officers of Gold Bank
immediately prior to the Bank Merger Effective Time, each of
whom, subject to the Bylaws of Gold Bank and applicable laws and
regulations, shall hold his or her respective office until the
next annual meeting of the board of directors of the Continuing
Bank subsequent to the Bank Merger Effective Time.
Section 1.6 Taking of Necessary Action. Gold Bank and
the Bank shall take all such action as may be necessary or
appropriate in order to effect the transactions contemplated
under this Agreement. If at any time after the Bank Merger
Effective Time any further action is necessary or desirable to
carry out the purposes of this Agreement and to vest Continuing
Bank with full title to all assets, rights, approvals, immunities
and franchises of either Gold Bank or the Bank, the officers and
directors of Gold Bank and the Bank, as the case may be, may take
all such lawful and necessary actions.
Section 1.7 Closing. Notwithstanding anything to the
contrary contained in the Merger Agreement, the closing of the
Bank Merger will take place immediately following the Merger on
the date and at the location specified in the Merger Agreement or
at such other time, date or place as may be agreed to by the
parties hereto (the "Bank Merger Closing Date").
Section 1.8 Liabilities. From and after the Bank
Merger Effective Time, Gold Bank shall be liable for all
liabilities of the Bank which were in existence immediately prior
to the Bank Merger Effective Time.
ARTICLE II
CAPITAL STOCK OF THE CONSTITUENT ASSOCIATIONS
Section 2.1 Bank Capital Stock. At the Bank Merger
Effective Time, by virtue of the Bank Merger and without any
action on the part of any holder thereof:
(a) Each share of Bank Common Stock that is either
authorized but unissued or held in the treasury of the Bank,
if any, or held by the Bank other than as trustee,
fiduciary, nominee or some similar capacity shall be
canceled and retired and shall cease to exist from and after
the Effective Time, and no cash or other consideration shall
be delivered in exchange therefor.
(b) Each share of Bank Common Stock that is issued and
outstanding and owned by the Surviving Corporation
immediately prior to the Bank Merger Effective Time shall be
converted into ____________shares of Gold Bank Common Stock.
(c) Each issued and outstanding share of Bank Common
Stock (excluding Bank Dissenting Shares as defined in
Section 2.3 hereof), that is not owned by the Surviving
Corporation immediately prior to the Bank Merger Effective
Time, of which there are 41,003 shares on the date hereof,
shall be converted into the number of shares (the "Bank
Merger Exchange Ratio") of Gold Banc Common Stock determined
by dividing $101.7346 by the Average Gold Banc Stock Price,
with the Bank Merger Exchange Ratio being rounded to four
decimal places. Notwithstanding the foregoing, (i) if the
Average Gold Banc Stock Price is at or above $13.50 per
share, then the Bank Merger Exchange Ratio shall be 7.5359,
and (ii) if the Average Gold Banc Stock Price is at or below
$11.00 per share, then the Bank Merger Exchange Ratio shall
be 9.2486. Fractions of shares determined pursuant to this
Section 2.1(b) shall be rounded to three decimal places.
If the Average Gold Banc Stock Price is less than $10.50, then
Gold Bank and the Bank shall in good faith attempt to negotiate a
mutually acceptable revised Bank Merger Exchange Ratio.
Section 2.2 Gold Bank Common Stock. The shares of
common stock par value $100.00 per share, of Gold Bank issued and
outstanding immediately prior to the Bank Merger Effective Time
shall remain outstanding and unchanged after the Bank Merger.
Section 2.3 Dissenting Shares. Notwithstanding
anything to the contrary contained in this Agreement, to the
extent appraisal rights are available to the Bank's shareholders
pursuant to the NBA, any shares of Bank Common Stock held by a
person who objects to the Merger, whose shares of Bank
Common Stock were not entitled to vote or were not voted in favor
of the Bank Merger and who complies with all of the provisions of
the NBA concerning the rights of such person to dissent from the
Bank Merger and to require appraisal of such person's shares of
Bank Common Stock and who has not withdrawn such objection or
waived such rights prior to the Bank Merger Closing Date
("Bank Dissenting Shares") shall not be converted pursuant to
Section 2.1 but shall become the right to receive such
consideration as may be determined to be due to the holder of
such Bank Dissenting Shares pursuant to the NBA, including, if
applicable, any costs determined to be payable by Gold Bank or
the Bank to the holders of the Bank Dissenting Shares pursuant to
an order of the district court in accordance with the NBA.
Section 2.4 Exchange of Certificates.
(a) Gold Bank shall obtain from Gold Banc and shall
make available to the Exchange Agents, at and after the Bank
Merger Effective Time, such number of shares of Gold Banc
Common Stock as shall be issuable to the holders of Bank
Common Stock in accordance with Section 2.1(c) hereof. As
soon as practicable after the Bank Merger Closing Date, Gold
Banc, on behalf of the Exchange Agents, shall mail to each
holder of record of a certificate that immediately prior to
the Closing Date represented outstanding shares of Bank
Common Stock (i) a form letter of transmittal and (ii)
instructions for effecting the surrender of certificates of
Bank Common Stock for exchange into certificates of Gold
Banc Common Stock. The Gold Banc Common Stock into which
the Bank Common Stock is being converted in accordance with
Section 2.1 hereof shall be delivered to each shareholder of
the Bank as set forth in a letter of transmittal.
Notwithstanding the foregoing, the Bank will use
commercially reasonable efforts to have available at Closing
as many Bank Common Stock certificates as possible and Gold
Banc will make available to the Bank and its shareholders as
many letters of transmittal and instructions for
surrendering the Bank Common Stock as requested.
(b) Notwithstanding any other provision herein, no
fractional shares of Gold Banc Common Stock and no
certificates or scrip therefor or other evidence of
ownership thereof will be issued. All fractional shares of
Gold Banc Common Stock to which a holder of Bank Common
Stock would otherwise be entitled to under Section 2.1
hereof shall be aggregated. If a fractional share results
from such aggregation, such shareholder shall be entitled,
after the Bank Merger Effective Time and upon the surrender
of such shareholder's certificate or certificates
representing shares of Bank Common Stock, to receive from
the Exchange Agents an amount in cash in lieu of such
fractional share equal to the product of such fraction and
the Average Gold Banc Stock Price. Gold Banc shall make
available to the Exchange Agents, as required from time to
time, any cash necessary for this purpose.
(c) As soon as practicable after the Bank Merger
Effective Time, the Exchange Agents shall cancel each
certificate for Bank Common Stock that immediately prior to
the Bank Merger Effective Time was owned by the Surviving
Corporation and shall issue to the Surviving Corporation
stock certificates for the required number of shares of Gold
Bank Common Stock determined in accordance with Section
2.1(b) hereof.
Section 2.5 Closing of the Bank Transfer Books. At
the Bank Merger Effective Time, the stock transfer books of the
Bank shall be closed and no transfer of Bank Common Stock shall
thereafter be made.
Section 2.6 Dividends. No dividends or other
distributions that are declared after the Bank Merger Effective
Time with respect to Gold Banc Common Stock payable to holders of
record thereof after the Bank Merger Effective Time shall be paid
to the Bank shareholders entitled to receive certificates
representing Gold Banc Common Stock until such shareholders
surrender to the Exchange Agents their certificates representing
Bank Common Stock. Upon such surrender, there shall be paid to
the shareholder in whose name the certificates representing such
Gold Banc Common Stock shall be issued any dividends which shall
have become payable with respect to such Gold Banc Common Stock
between the Bank Merger Effective Time and the time of such
surrender, without interest. After such surrender there shall
also be paid to the shareholder in whose name the certificates
representing such Gold Banc Common Stock shall be issued any
dividend on such Gold Banc Common Stock that shall have (a) a
record date subsequent to the Bank Merger Effective Time and
prior to such surrender and (b) a payment date after such
surrender, and such payment shall be made on such payment date.
In no event shall the shareholders entitled to receive such
dividends be entitled to receive interest on such dividends.
Section 2.7 Adjustments. If at any time during the
period between the date hereof and the Bank Merger Effective
Time, any change in the outstanding shares of Gold Banc Common
Stock is effected by reason of any reclassification,
recapitalization, stock split or combination, exchange or
readjustment of shares, or any stock dividend thereon with a
record date during such period, the Bank Merger Exchange Ratio
shall be adjusted on a pro rata basis.
ARTICLE III
COVENANTS
Section 3.1 Covenants of Gold Bank and the Bank.
During the period from the date of this Agreement and continuing
until the Bank Merger Effective Time, each of the parties hereto
agrees to observe and perform all agreements and covenants of the
Company and Gold Banc in the Merger Agreement that pertain or are
applicable to Gold Bank and the Bank, respectively. Each of the
parties hereto agrees to use all reasonable efforts to take, or
cause to be taken, all action and to do, or cause to be done, all
things necessary, proper or advisable under applicable Laws to
consummate and make effective the transactions contemplated by
this Agreement, subject to and in accordance with the applicable
provisions of the Merger Agreement.
ARTICLE IV
CONDITIONS OF BANK MERGER
Section 4.1 Conditions to Each Party's Obligation to
Effect the Bank Merger. The respective obligations of each party
to effect the Bank Merger shall be subject to the satisfaction
prior to the Bank Merger Closing Date of the following
conditions:
(a) CONSUMMATION OF THE MERGER. The
Merger shall have been consummated in accordance with
the terms and conditions of the Merger Agreement.
(b) NO INJUNCTIONS OR RESTRAINTS:
ILLEGALITY. No order, injunction or decree issued by
any court or agency of competent jurisdiction or other
legal restraint or prohibition preventing the
consummation of the Bank Merger shall be in effect. No
statute, rule, regulation, order, injunction or decree
shall have been enacted, entered, promulgated or
enforced by any Governmental Entity which prohibits,
restricts or makes illegal the consummation of the Bank
Merger.
(c) STOCKHOLDER APPROVAL. This Agreement
and the transactions contemplated hereby shall have
been duly approved, ratified and confirmed by the
required vote of the stockholders of the Bank and Gold
Bank.
(d) OTHER APPROVALS AND NOTIFICATIONS.
All requisite regulatory approvals and clearances of
the Bank Merger shall have been obtained and shall
continue to be in full force and effect, and all
applicable waiting periods shall have expired. In
addition, all consents, approvals and permits of and
notices to non-governmental third parties that are
necessary to consummate the Bank Merger shall have been
filed and/or obtained and shall continue to be in full
force and effect.
ARTICLE V
TERMINATION AND AMENDMENT
Section 5.1 Termination. This Agreement shall be
terminated immediately and without any further action on the part
of Gold Bank or the Bank upon any termination of the Merger
Agreement. This Agreement may be terminated at any time prior to
the Bank Merger Effective Time by mutual consent of Gold Bank and
the Bank.
Section 5.2 Effect of Termination. In the event of
termination of this Agreement as provided in Section 5.1 hereof,
this Agreement shall forthwith become void and there shall be no
liability or obligation under this Agreement on the part of Gold
Bank, the Bank or their respective officers, directors or
affiliates, except that no party shall be relieved or released
from any damages or liabilities arising out of any willful breach
of this Agreement.
Section 5.3 Amendment. This Agreement may be amended
by the parties hereto, by action taken or authorized by their
respective Boards of Directors. This Agreement may not be amended
except by instrument in writing signed on behalf of each of the
parties hereto.
ARTICLE VI
MISCELLANEOUS
Section 6.1 Notices. All notices and other
communications hereunder shall be in writing and shall be deemed
given if delivered personally, telecopied (with confirmation) or
mailed by registered or certified mail (return receipt requested)
to Gold Bank or the Bank, at the addresses for notices to Gold
Banc or the Company, respectively, as set forth in the Merger
Agreement, with copies to the persons referred to therein.
Section 6.2 Counterparts. This Agreement may be
adopted, certified and executed in separate counterparts, each of
which shall be considered one and the same agreement and shall
become effective when all counterparts have been signed by each
of the parties and delivered to the other party, it being
understood that both parties need not sign the same counterpart.
Section 6.3 Entire Agreement. Except as otherwise set
forth in this Agreement or the Merger Agreement (including the
documents and the instruments referred to herein or therein),
this Agreement and the Merger Agreement constitutes the entire
agreement, and supersedes all prior agreements and
understandings, both written and oral, among the parties with
respect to the subject matter hereof.
Section 6.4 Governing Law. This Agreement shall be
governed and construed in accordance with the laws of the State
of Missouri without regard to any applicable conflicts of law.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered as of the date and
year first above written.
GOLD BANK, N.A.
By: ______________________________
Name:
Title:
ATTEST:
__________________________
Name:
Title:
FIRST BUSINESS BANK OF KANSAS CITY, N.A.
By: _____________________________
Name:
Title:
ATTEST:
__________________________
Name:
Title:
STATE OF ________________ )
) ss.
COUNTY OF _______________ )
ON THIS ___ day of October, 1999, before me the undersigned,
a Notary Public in and for the County and state aforesaid,
came______________, ________________________ of Gold Bank, N.A.,
a national banking association, and __________________________,
Secretary, who are personally known to me to be such persons, and
who is personally known to me to be the same persons who executed
the within instrument on behalf of said corporation, and such
persons duly acknowledged the execution of the same to be the act
and deed of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed
my official seal, the day and year last above written.
_____________________________
NOTARY PUBLIC
My Appointment Expires:
______________________
STATE OF _________________ )
) ss.
COUNTY OF ________________ )
ON THIS ___ day of October, 1999, before me the undersigned,
a Notary Public in and for the County and state aforesaid,
came______________, ________________________ of First Buisness
Bank of Kansas City, N.A., a national banking association, and
___________________, Secretary, who are personally known to me to
be such persons, and who is personally known to me to be the same
persons who executed the within instrument on behalf of said
corporation, and such persons duly acknowledged the execution of
the same to be the act and deed of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed
my official seal, the day and year last above written.
_____________________________
NOTARY PUBLIC
My Appointment Expires:
______________________
