Exhibit 2.1
FIRST AMENDMENT
TO
AGREEMENT AND PLAN OF REORGANIZATION
THIS FIRST AMENDMENT TO AGREEMENT AND PLAN OF
REORGANIZATION (this "First Amendment"), dated as of January 24,
2000, is made by and among GOLD BANC CORPORATION, INC., a Kansas
corporation ("Gold Banc"), GOLD BANC ACQUISITION CORPORATION XI,
INC., a Kansas corporation ("Acquisition Subsidiary") and
AMERICAN BANCSHARES, INC., a Florida corporation (the "Company").
RECITALS
A. Gold Banc, Acquisition Subsidiary and the Company
entered into an Agreement and Plan of Reorganization, dated as of
September 6, 1999 (the "Original Agreement"), providing for the
merger of the Company with and into Acquisition Subsidiary (the
"Merger").
B. Gold Banc, Acquisition Subsidiary and the Company
desire to amend the Original Agreement in the manner set forth in
this First Amendment (the Original Agreement, as amended by this
First Amendment, is referred to herein as the "Agreement").
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:
1. DEFINITIONS. All capitalized terms not otherwise
defined herein shall have the meanings set forth in the Original
Agreement.
2. REVISED DEFINITIONS.
(a) The definition of "Total Equity Capital" set forth
in Section 1.1 of the Merger Agreement is hereby amended by
deleting the definition of "Total Equity Capital" set forth in
Section 1.1 in its entirety and by inserting, in lieu thereof,
the following:
"Total Equity Capital" means, with respect to the
Company and its Subsidiaries, the sum of (a) outstanding capital
stock, paid in capital, retained earnings and current year
earnings, all determined in accordance with GAAP, but excluding
any FAS 115 adjustments, and (b) the realized bond losses (the
"Bond Losses"), totaling an aggregate of $457,000 net of
applicable tax effect ($693,000 before taxes), which were
recognized by the Company at the request of Gold Banc in
anticipation of the transactions contemplated by this Agreement.
(b) Section 1.1 of the Merger Agreement is hereby
amended by adding the following definition in alphabetical order:
"Bond Losses" shall have the meaning set forth in the
definition of Total Equity Capital in Section 1.1 hereof.
3. Section 2.7. The final sentence of Section 2.7 of
the Original Agreement, which immediately follows Section 2.7(b)
shall be deleted.
4. Section 2.14. Section 2.14(a) of the Original
Agreement is hereby amended by deleting Section 2.14(a) in its
entirety and by inserting, in lieu thereof, the following:
(a) If by the Closing Date either the Company or the
Bank fail to achieve any of the financial measures set forth in
Section 8.5 hereof, then Gold Banc and the Company shall in good
faith attempt to negotiate a mutually acceptable revised Exchange
Ratio, which negotiations shall be based upon the formula set
forth in Section 2.14(b) hereof; provided, however, that if a
mutually acceptable revised Exchange Ratio is not negotiated
within five (5) Business Days, then Gold Banc may terminate this
Agreement as provided in Section 11.1(d)(i) hereof.
5. ARTICLE V. Article V of the Merger Agreement is
hereby amended by adding the following provisions at the end
thereof (with conforming changes to the table of contents):
Section 5.22 Bond Losses. On or prior to December 31,
1999, the Company shall take the Bond Losses.
Section 5.23 Dissolution of Finance. On or prior to
the Closing Date, the Company shall use reasonable efforts to
transfer the assets of Finance to the Bank and to dissolve
Finance in accordance with the FBCA.
6. SECTION 7.9. Section 7.9 of the Original
Agreement is hereby amended by (i) deleting the term "$10.00" and
replacing it with the term "$9.25" and (ii) deleting the phrase
", unless amended pursuant to Section 2.7 hereof."
7. SECTION 8.5. Section 8.5(c) of the Original
Agreement is hereby deleted in its entirety and Section 8.5(d) of
the Original Agreement is hereby amended by deleting "(d)"
preceding the text thereof and inserting, in lieu thereof, "(c)".
8. SECTION 11.1(h). Section 11.1(h) of the Original
Agreement is hereby amended by deleting Section 11.1(h) in its
entirety and by inserting, in lieu thereof, the following::
(h) by the Company, if the Average Gold Banc Stock
Price is less than $9.25 and the Board of Directors of the
Company determines, by a vote of the majority of the entire
Board, at any time during the period commencing on the
Determination Date and ending on March 31, 2000, to
terminate this Agreement;
9. SECTION 11.3. Section 11.3(c) of the Original
Agreement is hereby amended by deleting Section 11.3(c) in its
entirety and by inserting, in lieu thereof, the following:
(c) In the event this Agreement is terminated as a
result of the Company's failure or breach under Section
11.1(d), 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 the Gold Banc's
investment bankers and SEC fees and printing fees). This
payment is not the exclusive remedy available to Gold Banc
for any such failure or breach on the part of the Company
and will not serve as liquidated damages therefor, and such
payment will be cumulative to all other remedies available
to Gold Banc under this Agreement and under applicable Law.
Notwithstanding the foregoing, if the Company's failure or
breach under Section 11.1(d) occurs solely as a result of a
failure to satisfy the financial measures set forth in
Section 8.5, then the Company shall not be obligated to
reimburse Gold Banc for any expenses relating to the Merger
and shall have no other liability to Gold Banc solely as a
result of such failure.
10. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
COMPANY. In consideration of the Company's agreement to take the
actions set forth in this First Amendment, Gold Banc and
Acquisition Subsidiary acknowledge, agree, and hereby confirm
that neither the realization of the Bond Losses, nor the adoption
and approval of the amendments set forth in paragraph 5 of this
First Amendment, or the Company's compliance with Sections 5.22
or 5.23 hereof, will:
(a) be deemed to (i) constitute a breach of any of the
covenants of the Company set forth in the Original Agreement, or
(ii) render any representation or warranty made in the Original
Agreement as untrue or incorrect, or otherwise constitute a
breach thereof, or
(b) serve as a basis for asserting a failure to
satisfy any of the conditions precedent set forth in Article VIII
of the Original Agreement or as a basis for termination under
Article XI of the Original Agreement.
11. MISCELLANEOUS. The parties to this First
Amendment ratify and approve all of the remaining terms and
provisions of the Original Agreement not specifically modified or
amended in this First Amendment. In the event that any term or
provisions of this First Amendment is inconsistent with the terms
and provisions of the Original Agreement, the terms and
provisions of this First Amendment shall control.
12. COUNTERPARTS. This First Amendment may be
executed in counterparts, each of which shall be deemed an
original and all of which, taken together, shall constitute a
single instrument.
13. GOVERNING LAW. This First Amendment shall be
governed by and construed and enforced in accordance with the
laws of the State of Florida.
IN WITNESS WHEREOF, the parties hereto have duly
executed this Agreement as of the date first above written.
GOLD BANC CORPORATION, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
Name : Xxxxxxx X. Xxxxxxx
Title: Chairman of the Board
ATTEST:
/s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Secretary
GOLD BANC ACQUISITION CORPORATION XI, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
Name : Xxxxxxx X. Xxxxxxx
Title: President
ATTEST:
/s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Secretary
AMERICAN BANCSHARES, INC.
By: /s/ Xxxxx X. Xxxx
Name: Xxxxx X. Xxxx
Title: President and
Chief Executive Officer
ATTEST:
/s/ Xxxxx X. Xxxxxxxxx
Name: Xxxxx X. Xxxxxxxxx
Title: Secretary
