EXHIBIT 2.1
EXECUTION COPY
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (this
"Agreement"), dated as of October 22, 1999, is made by and among
GOLD BANC CORPORATION, INC., a Kansas corporation ("Gold Banc"),
GOLD BANC ACQUISITION CORPORATION XII, INC., a Kansas corporation
("Acquisition Subsidiary"), and COUNTRYBANC HOLDING COMPANY, an
Oklahoma corporation ("Company").
RECITALS
A. The Boards of Directors of Gold Banc, Acquisition
Subsidiary and the Company have approved and deem it advisable
and in the best interests of their respective companies and
stockholders that Gold Banc and the Company become affiliated
through the merger of the Company with and into Acquisition
Subsidiary in the manner hereinafter set forth (the "Merger" or
the "Company Merger").
B. As a condition to Gold Banc entering into this
Agreement, Gold Banc has required that each Significant
Stockholder (as defined herein) agree to enter into a Voting
Agreement substantially in the form attached hereto as Exhibit A
on or before 11:59 a.m., Monday, November 1, 1999.
C. As a condition precedent to Gold Banc's obligation
to consummate the Merger, at least thirty (30) days prior to the
Closing Date (as defined herein), the Company shall have
completed its acquisition of American Heritage.
D. The parties desire to make certain
representations, warranties and agreements in connection with the
Merger and also to prescribe certain conditions to the 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:
"280G Opinion Letter" shall have the meaning set forth
in Section 8.14 hereof.
"401(k) Plan" shall have the meaning set forth in
Section 5.17 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 any Subsidiary, 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 any Subsidiary'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 any Subsidiary,
or similar transactions involving the Company or any Subsidiary,
other than the Merger.
"Acquisition Subsidiary" means Gold Banc Acquisition
Corporation XII, Inc., a Kansas corporation, and its successors
and assigns.
"Acquisition Subsidiary Common Stock" shall have the
meaning set forth in Section 2.6 hereof.
"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.
"American Heritage" shall mean American Heritage
Bancorp, Inc., an Oklahoma corporation.
"American Heritage Acquisition Agreement" means that
certain Agreement and Plan of Reorganization, dated as of June 9,
1999, as amended, between the Company and American Heritage.
"BHC Act" means the Banking Holding Company Act of
1956, as amended, and the regulations promulgated thereunder.
"Business Day" means a day other than Saturday, Sunday
or another day on which commercial banks in Kansas are authorized
or required by law to close.
"COL" means Central Oklahoma Leasing Authority, Inc.,
an Oklahoma corporation.
"Closing" means the consummation of the transactions
contemplated hereby.
"Closing Date" shall have the meaning set forth in
Section 2.2 hereof.
"Closing Gold Banc Stock Price" shall mean the average
of the closing sales price of Gold Banc Common Stock as reported
by Nasdaq on each of the five consecutive trading days
immediately preceding the Closing Date.
"Code" means the Internal Revenue Code of 1986, as
amended, and the regulations promulgated thereunder.
"Company" means CountryBanc Holding Company, an
Oklahoma corporation, and its successors and assigns.
"Company Class A Common Stock" shall mean the Class A
common stock, par value $.01 per share, of the Company.
"Company Class B Common Stock" shall mean the Class B
common stock, par value $.01 per share, of the Company.
"Company Common Stock" means collectively, the Class A
Common Stock and the Class B Common Stock.
"Company Confidential Information" shall have the
meaning set forth in Section 6.5 hereof.
"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 Preferred Stock" means the Preferred Stock,
Special Series, par value $.01 per share, of the Company.
"Company Stock Restriction Agreement" shall mean the
Amended and Restated Stock Restriction Agreement, dated October
17, 1996, between the Company, Xxx X. XxXxxxx, Xxxxxxx Xxxxxx and
others.
"Company Subscription Agreements" shall mean the forms
of Subscription Agreement (Institutional Investor) and
Subscription Agreement (Individual Investor), each dated as of
October 17, 1996, entered into between the Company and various
parties.
"Company Supplemental Information" shall have the
meaning set forth in
Section 5.21 hereof.
"Company's Accountants" means Xxxxxx Xxxxxxxx, L.L.P.,
and its successors.
"Company's Counsel" means McAfee & Xxxx, and its
successors.
"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, 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.
"El Reno Bank" means American Heritage Bank, El Reno,
Oklahoma, an Oklahoma banking corporation.
"Elkhart Bank" means People First Bank, Elkhart,
Kansas, a Kansas banking corporation.
"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 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.
"First State" means the First State Holding Company of
Elkhart, a Kansas Corporation.
"GAAP" means United States generally accepted
accounting principles, applied on a basis consistent with prior
periods, as in effect on the date of this Agreement. 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.
"GBC Oklahoma, Inc." shall have the meaning set forth
in Section 2.3(a) hereof.
"Gold Banc" means Gold Banc Corporation, Inc., a Kansas
corporation, and its successors and assigns.
"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 Plans" shall have the meaning set forth in
Section 4.12 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 Subsidiaries" shall have the meaning set
forth in Section 4.1(c) hereof.
"Gold Banc Supplemental Information" shall have the
meaning set forth in Section 6.12 hereof.
"Gold Banc's Accountants" means KPMG LLP, and its
successors.
"Gold Banc's Counsel" means Xxxxxxx, Mag & Fizzell,
P.C.,and its successors.
"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.
"Hennessey Bank" means People First Bank, Xxxxxxxxx,
Oklahoma, an Oklahoma banking corporation.
"Xxxxxxxxx License" shall mean that certain license
granted with respect to the xxxx "People First" granted to
CountryBanc by the owner of such xxxx pursuant to that certain
agreement dated June 5, 1997.
"Xxxxx" means Xxxxx Financial, Inc., investment advisor
to the Company.
"IRS" means the United States Internal Revenue Service.
"Indemnified Party" shall have the meaning set forth in
Section 6.11(a) hereof.
"KGCC" means the Kansas General Corporation Code, as
amended from time to time.
"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.
"Material Adverse Effect" or "Material Adverse Change"
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 financial
position, business, 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 Oklahoma 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.
"OGCA" means the Oklahoma General Corporation Act, as
amended from time to time.
"OREO" means other real estate owned.
"Order" means any order, judgment, injunction, decree,
determination or award of any Governmental Entity or arbitrator.
"Person" means any natural person, corporation,
partnership, limited liability company, trust, unincorporated
organization or other 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 5.11(b) hereof.
"Proxy Statement" shall have the meaning set forth in
Section 10.1(a) 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(a) hereof.
"Rights" shall have the meaning ascribed to it in the
Rights Agreement.
"Rights Agreement" shall mean that certain Rights
Agreement, dated as of October 13, 1999, between Gold Banc and
American Stock Transfer & Trust Company, a New York corporation.
"Rights Certificate" shall have the meaning ascribed to
it in the Rights Agreement.
"Rule 4460" shall have the meaning set forth in Section
4.3(a) 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.
"Significant Shareholders" means, collectively, Xxx X.
XxXxxxx, Xxxxxx Xxxxxx, Xxxxxxx Xxxxxx, Xxx Xxxxxxxx, Xxxx X.
Xxxxxx, Global Private Equity II Limited Partnership, Advent
Direct Investment Program Limited Partnership, Advent Partners
Limited Partnership, Olympus Growth Fund II, L.P. and Olympus
Executive Fund, L.P., and their heirs, successors and assigns.
"Subscription Rights" shall mean the rights to
subscribe to the capital stock of the Company pursuant to (i) the
Company Subscription Agreements and (ii) rights granted to the
shareholders of American Heritage by the Company in connection
with the Company's acquisition of American Heritage.
"Subsidiaries" means, collectively, Xxxxxxxxx Bank,
Elkhart Bank, COL and First State and "Subsidiary" means any one
of the Subsidiaries.
"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 year earnings, all determined in
accordance with GAAP and Section 5.19 hereof, but excluding FAS
115 adjustments.
"Union Bank" shall mean Union Bank and Trust Company,
Oklahoma City, Oklahoma.
"Union Bank Loan" shall mean that certain indebtedness
owed by the Company to Union Bank pursuant to that certain
promissory note, dated as of March 19, 1998, together with the
loan agreement, security agreements and related instruments
delivered in connection therewith, together with any successor
agreements evidencing such indebtedness.
"Vested Company Preferred Stock" shall mean those
shares of Company Preferred Stock which vest in accordance with
Section 3 of the Company Stock Restriction Agreement.
"Year 2000 Compliant" means the ability to perform date
sensitive functions for all dates before and after January 1,
2000.
"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.
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, and words importing person shall
include individuals, corporations, partnerships, joint
ventures, associations, joint-stock companies, trusts,
unincorporated organizations and governments and any agency
or political subdivision thereof.
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
KGCC and the OGCA, at the Effective Time, the Company shall be
merged with and into Acquisition Subsidiary and the separate
existence and corporate organization of the Company shall
thereupon cease and the Company and Acquisition Subsidiary shall
thereupon be a single corporation. Acquisition Subsidiary shall
be the surviving corporation in the Merger (the "Surviving
Corporation") and the separate corporate existence of Acquisition
Subsidiary shall continue unaffected and unimpaired by the
Merger.
Section 2.2 Effective Time of the Company Merger.
On the Closing Date (as hereinafter defined), officers of the
Company and Acquisition Subsidiary shall execute and acknowledge
appropriate certificates or articles of merger that shall be
filed with the Kansas Secretary of State and the Oklahoma
Secretary of State all in accordance with the KGCC and the OGCA.
The Merger and the other transactions contemplated by this
Agreement shall become effective on the date that such
certificates or articles of merger have been filed with the
Kansas Secretary of State and the Oklahoma Secretary of State in
accordance with the KGCC and the OGCA and at such time as shall
be specified in such certificates or articles of merger and, if
no time is specified, at 11:59 p.m., Central Time on the date of
filing (the "Effective Time"). The Closing shall be on a day
(the "Closing Date") occurring not later than twenty (20) days
following nor earlier than five (5) days after 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 (other than the condition
specified in Section 7.9 hereof, which will be determined
immediately prior to the Closing Date) at 1:00 p.m. at the office
of Gold Banc's Counsel, which day shall be mutually agreed upon
by Gold Banc and the Company, 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
Acquisition Subsidiary 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, except that the name of the Surviving Corporation shall
be changed to "GBC Oklahoma, Inc." at the Effective Time.
(b) The officers and directors of Acquisition
Subsidiary 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 Company Merger. From and
after the Effective Time, the Merger shall have the effects on
the Company and Acquisition Subsidiary set forth in Section 1088
of the OGCA and Section 17-6709 of the KGCC.
Section 2.5 Further Assurances. If at any time
after the Effective Time, Acquisition Subsidiary 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
Acquisition Subsidiary the title to any property, rights,
privileges, powers, or franchises of the Company, the former
Board of Directors and officers of the Company may, and are
hereby 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 Acquisition Subsidiary, and otherwise to carry out
the provisions of this Agreement.
Section 2.6 Conversion of Acquisition Subsidiary
Common Stock. At the Effective Time, each share of common stock,
$1.00 par value per share, of Acquisition Subsidiary
("Acquisition Subsidiary Common Stock") issued and outstanding
immediately prior to the Effective Time shall remain issued and
outstanding, and shall be unaffected by the Company 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 or for debts previously contracted 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 1,207,922 shares are issued and
outstanding as of the date hereof and each share of Vested
Company Preferred Stock (excluding Company Dissenting Shares
as defined in Section 2.8 hereof) shall cease to be
outstanding and shall be converted into and exchanged for
the number of shares of Gold Banc Common Stock equal to
7,971,589 divided by the sum of (i) the number of shares of
Company Common Stock and (ii) the number of shares of Vested
Company Preferred Stock issued and outstanding as of the
Effective Time (the "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
stockholders pursuant to the OGCA, any shares of Company Common
Stock or Vested Company Preferred Stock held by a person who
objects to the Merger, whose shares of Company Common Stock or
Vested Company Preferred 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 OGCA concerning the rights of such person to
dissent from the Merger and to require appraisal of such person's
shares of Company Common Stock or Vested Company Preferred 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
OGCA, including, if applicable, any costs determined to be
payable by Acquisition Subsidiary or the Company to the holders
of the Company Dissenting Shares pursuant to an order of the
district court in accordance with the OGCA. Notwithstanding the
foregoing, as set forth hereinafter, Gold Banc does not have to
close on this transaction if appraisal rights are exercised on 7%
or more of the aggregate number of shares of Company Common Stock
and Vested Company Preferred Stock.
Section 2.9 Exchange of Certificates.
(a) Gold Banc, on behalf of Acquisition Subsidiary,
shall make available to Midwest Capital Management, Inc. and
Gold Bank, National Association, which are hereby designated
as the exchange agents (the "Exchange Agents"), on the
Closing Date, such number of shares of Gold Banc Common
Stock (and cash in lieu of fractional shares) as shall be
issuable or deliverable 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 of Company Common Stock that immediately prior
to the Closing Date represented outstanding shares of
Company Common Stock and to each beneficial owner of shares
of Vested Company Preferred Stock as certified pursuant to
the Company Stock Restriction Agreement (i) a form letter of
transmittal and (ii) instructions for effecting the
surrender of certificates of Company Common Stock and Vested
Company Preferred Stock for exchange into certificates of
Gold Banc Common Stock. The Gold Banc Common Stock into
which the Company Common Stock and Vested Company Preferred
Stock is being converted in accordance with Section 2.7
hereof shall be delivered to each stockholder of the Company
as set forth in a letter of transmittal. Provided, in the
event the Surviving Corporation shall not have received a
certification with respect to the number of shares of Vested
Company Preferred Stock pursuant to Section 5(a) of the
Company Stock Restriction Agreement and, if applicable, a
certification pursuant to Section 5(b) of the Stock
Restriction Agreement, Gold Banc shall have no obligation to
mail the instruments described herein until such
certification(s) are received by the Surviving Corporation.
(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 and/or Vested Company Preferred Stock would otherwise
be entitled to under Section 2.7 hereof shall be aggregated.
If a fractional share results from such aggregation, such
stockholder shall be entitled, after the Effective Time and
upon the surrender of such stockholder's certificate or
certificates representing shares of Company Common Stock
and/or Vested Company Preferred 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 Closing
Gold Banc Stock Price. Gold Banc, on behalf of Acquisition
Subsidiary, 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,
in so far as they relate to the Company Common Stock, shall be
closed and no transfer of Company Common Stock shall thereafter
be made. With respect to the Special Preferred Stock, the
Surviving Corporation shall cause the stock transfer books to
remain open after the Effective Time to the extent necessary to
cause the Vested Company Preferred Stock to be issued in amounts
and to such parties as required by the Company Stock Restriction
Agreement, which shares of Vested Company Preferred Stock shall
be deemed to have been issued, solely for the purpose of signing
and delivering stock certificates issued in the name of the
Company, immediately prior to the Effective Time.
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
stockholders entitled to receive certificates representing Gold
Banc Common Stock until such stockholders surrender to the
Exchange Agents their certificates representing Company Common
Stock. Upon such surrender, there shall be paid to the
stockholder 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 stockholder 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
stockholders entitled to receive such dividends be entitled to
receive interest on such dividends.
Section 2.12 Stockholders' Approval.
(a) The Company agrees to submit this Agreement and
the transactions contemplated hereby to its stockholders for
approval to the extent required and as provided by Law and
the Certificate 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 stockholders' 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 stockholders 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 Rule 4460
of the rules of Nasdaq. 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.
(c) Acquisition Subsidiary agrees to submit this
Agreement and the transactions contemplated hereby to its
Board of Directors and sole stockholder for approval to the
extent required and as provided by Law, the Articles of
Incorporation and Bylaws of Acquisition Subsidiary.
Section 2.13 Adjustments. If at any time during the
period between the date hereof and the Effective Time, any change
in the number of 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 (in the case of
a stock dividend) or the effective date thereof (in the case of a
stock split or combination, or similar recapitalization for which
a record date is not established) during such period, the
Exchange Ratio shall be proportionately adjusted on a pro rata
basis. In addition, in the event a Distribution Date (as defined
in the Rights Agreement) shall occur prior to the Effective Time,
promptly following the Effective Time Gold Banc shall issue
Rights Certificates evidencing the appropriate number of Rights
(determined as if the Distribution Date had occurred immediately
prior to the Effective Time) to the shareholders of the Company
receiving Gold Banc Common Stock pursuant to Section 2.7 hereof.
Section 2.14 Voting Agreement. As a condition to
Gold Banc entering into this Agreement, Gold Banc has required
that each Significant Stockholder agree to enter into a Voting
Agreement substantially in the form attached hereto as Exhibit A
on or before 11:59 a.m., Monday, November 1, 1999.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby makes the following representations
and warranties to Gold Banc and Acquisition Subsidiary, each of
which (i) is true and correct on the date hereof, (ii) will be
true and correct as of the Effective Time and (iii) shall be
unaffected by any investigation heretofore or hereafter made by
Gold Banc or Acquisition Subsidiary or their respective
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 Oklahoma, 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 and Acquisition Subsidiary complete and correct
copies of its Certificate 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 and its Subsidiaries.
(b) Xxxxxxxxx Bank is a wholly-owned subsidiary of the
Company and is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Oklahoma, with all requisite corporate power and authority
to own, lease and operate its properties and conduct its
business as it is now being conducted. Xxxxxxxxx Bank has
heretofore made available to Gold Banc and Acquisition
Subsidiary complete and correct copies of its Certificate of
Incorporation and Bylaws. Xxxxxxxxx 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 Xxxxxxxxx Bank.
(c) Elkhart Bank is a subsidiary of the Company (17%
of Elkhart Bank is owned directly by the Company and 83% of
Elkhart Bank is owned by First State) and 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. Elkhart Bank has heretofore made available to
Gold Banc and Acquisition Subsidiary complete and correct
copies of its Articles of Incorporation and Bylaws.
Elkhart 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
Elkhart Bank.
(d) First State is a wholly-owned subsidiary of the
Company and 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. First State has
heretofore made available to Gold Banc and Acquisition
Subsidiary complete and correct copies of its Articles of
Incorporation and Bylaws. First State 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 First State.
(e) COL is a wholly-owned subsidiary of the Company
and is a corporation duly organized, validly existing and in
good standing under the laws of the State of Oklahoma, with
all requisite corporate power and authority to own, lease
and operate its properties and conduct its business as it is
now being conducted. COL has heretofore made available to
Gold Banc and Acquisition Subsidiary complete and correct
copies of its Certificate of Incorporation and Bylaws. COL
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 COL.
(f) Other than Xxxxxxxxx Bank, Elkhart Bank, COL and
First State, the Company has no other direct or indirect
subsidiaries.
Section 3.2 Capital Structure.
(a) The Company. As of the date hereof, the
authorized capital stock of the Company consists only of
8,500,000 shares of Company Common Stock, of which 1,006,002
shares of Company Class A Common Stock and 201,920 shares of
Company Class B Common Stock are issued and outstanding; and
1,500,000 shares of preferred stock, par value $.01,
508,767 of which are designated as "Preferred Stock, Special
Series" and constituted the Company Preferred Stock and all
of which are issued and outstanding and subject to the Stock
Restriction Agreement. All outstanding shares of Company
Common Stock and Company Preferred Stock are validly issued,
fully paid and nonassessable and are not subject to
preemptive rights (other than the Subscription 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, Company Preferred Stock
or any other securities of the Company, except for the
Subscription Rights. Except as described in Schedule
3.2(a), there are not as of the date hereof and will not be
as of the Effective Time any stockholder 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 stockholders of the Company with
respect to the Merger.
(b) Xxxxxxxxx Bank. The authorized capital stock of
Xxxxxxxxx Bank consists only of 65,000 shares of common
stock, par value $10.00 per share, all of which shares are
issued and outstanding. All of the issued and outstanding
shares of common stock of Xxxxxxxxx Bank are owned
beneficially and of record by the Company, free and clear of
all Liens (except for a Lien granted in connection with a
bank stock loan from Union Bank). All outstanding shares of
common stock of Xxxxxxxxx Bank are validly issued, fully
paid and, except as provided by Section 220 of the Oklahoma
Banking Code of 1997, as amended, nonassessable. There are
no outstanding or authorized options, warrants, agreements,
subscriptions, calls, demands or rights of any character
relating to the capital stock of Xxxxxxxxx Bank (other than
any statutory preemptive rights of shareholders), whether or
not issued, including without limitation securities
convertible into or evidencing the right to purchase any
common stock or any other securities of Xxxxxxxxx Bank.
(c) Elkhart Bank. The authorized capital of Elkhart
Bank consists only of 3,000 shares of common stock, par
value $100.00 per share, all of which are issued and
outstanding. All of the issued and outstanding shares of
common stock in Elkhart Bank are owned beneficially and of
record by the Company or First State, free and clear of all
Liens (except for a Lien granted in connection with a bank
stock loan from Union Bank). All outstanding shares of
common stock of Elkhart Bank are validly issued, fully paid
and, except as provided by Section 9-906 of the Kansas
banking code, as amended, nonassessable. There are no
outstanding or authorized options, warrants, agreements,
subscriptions, calls, demands or rights of any character
relating to the capital of Elkhart Bank (other than any
statutory preemptive rights of shareholders), whether or not
issued, including without limitation securities convertible
into or evidencing the right to purchase any shares of
common stock or any other securities of Elkhart Bank.
(d) First State. The authorized capital of First
State consists only of 30,000 shares of common stock, par
value $1.00 per share, of which 1,220 shares are issued and
outstanding; and 20,000 shares of preferred stock, par value
$1.00 per share, no shares of which are issued and
outstanding. All of the issued and outstanding shares of
common stock in First State are owned beneficially and of
record by the Company, free and clear of all Liens (except
for a Lien granted in connection with a bank stock loan from
Union Bank). All outstanding shares of common stock of
First State 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 of First
State (other than any statutory preemptive rights of
shareholders), whether or not issued, including without
limitation securities convertible into or evidencing the
right to purchase any shares of common stock or any other
securities of First State.
(e) COL. The authorized capital of COL consists only
of 50,000 shares of common stock, par value $1.00 per share,
of which 1,000 shares are issued and outstanding. All of
the issued and outstanding shares of common stock in COL are
owned beneficially and of record by the Company, free and
clear of all Liens (except for a Lien granted in connection
with a bank stock loan from Union Bank). All outstanding
shares of common stock of COL 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 of COL
(other than any statutory preemptive rights of
shareholders), whether or not issued, including without
limitation securities convertible into or evidencing the
right to purchase any shares of common stock or any other
securities of COL.
Section 3.3 Authority. The Company has all
requisite corporate power and authority to execute and deliver
this Agreement and all other agreements to be executed and
delivered by the Company pursuant hereto, and, subject, with
respect to consummation of the Merger, to approval of this
Agreement and the Merger by the stockholders of the Company in
accordance with the OGCA and the Company's Certificate of
Incorporation and Bylaws, 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 and thereto, the performance of its
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, subject, with respect to consummation of the Merger, to
such approval of this Agreement and the Merger by the
stockholders of the Company in accordance with the OGCA. 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, subject, with respect
to consummation of the Merger, to approval of this Agreement and
the Merger by the stockholders of the Company in accordance with
the OGCA, and (assuming due authorization, execution, and
delivery by Gold Banc and Acquisition Subsidiary) constitutes, or
will constitute, the legal, valid and binding obligations of the
Company, enforceable against the Company in accordance with their
terms (except in all cases to the extent that such enforceability
may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, or similar laws affecting the
enforcement of Creditors' rights and remedies generally and
except that the availability of the equitable remedy of specific
performance and injunctive relief is subject to the discretion of
the Court before which any proceedings may be brought).
Section 3.4 Stockholder Approval. 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 stockholders for approval at a meeting of such
stockholders and, except for adoption of this Agreement by the
requisite vote of the Company's stockholders, no other
stockholder action is necessary to approve this Agreement and to
consummate the Merger contemplated hereby. The Board of
Directors will recommend that the stockholders approve this
Agreement and the Merger contemplated hereby, subject to their
fiduciary duties. Except as provided in Schedule 3.4, (i) the
affirmative vote of the holders of a majority of the outstanding
shares of Company Class A 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; and (ii) 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.
Section 3.5 No Violations.
(a) 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 Certificate of Incorporation or Bylaws or
other organizational documents of the Company or any
Subsidiary, (ii) except for the Union Bank Loan, any
provision of any Contract, Lien, Order or other restriction
of any kind or character to which the Company or any
Subsidiary is a party, or by which the Company or any
Subsidiary, 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 any
Subsidiary; except, in the case of Sections 3.5 (a)(ii) and
(iii), such conflicts, violations, breaches or defaults
which are not reasonably likely to have a Material Adverse
Effect on the Company and its Subsidiaries.
(b) The Company and the Subsidiaries are not currently
in violation, breach or default of, and the consummation of
the transactions contemplated hereby will not, subject to
obtaining all required regulatory approvals and making all
required state and federal securities law filings, cause any
violation, breach or default of, any Laws, Orders, Licenses
or Contracts applicable to the Company or any of the
Subsidiaries except for any violations, breaches or defaults
that are not reasonably likely to have a Material Adverse
Effect on the Company and its Subsidiaries.
(c) All Licenses required or necessary for the Company
or any of the Subsidiaries 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 Subsidiaries 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 and its Subsidiaries.
Section 3.6 Financial Statements. The Company has
previously delivered to Gold Banc and Acquisition Subsidiary
audited consolidated statements of financial condition,
consolidated statements of income, consolidated statements of
stockholders equity and consolidated statements of cash flows,
for the Company as of December 31, 1998 and December 31, 1997,
and all related schedules and notes to the foregoing, an
unaudited consolidated balance sheet, dated June 30, 1999, for
the period then ended (collectively, the "Company Financial
Statements"). The Company Financial Statements have been
prepared in accordance with GAAP (except as may be indicated in
the notes thereto) and practices which were applied on a
consistent basis, and present fairly in all material respects the
financial position, results of operation and changes of financial
position of the Company and its Subsidiaries, as applicable, as
of their respective dates and for the periods indicated;
provided, that the unaudited financial statements described above
are subject to normal year-end adjustments, and do not contain
any or all footnotes or all statements required by GAAP. The
Company has no 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 reflected in the
consolidated balance sheet of the Company as of June 30, 1999 (or
disclosed in the notes thereto), or incurred since June 30, 1999,
in the ordinary course of business. The Company has also provided
to Gold Banc, in the form set forth on Schedule 3.6 hereto, a
proforma balance sheet dated as of September 30, 1999 and income
statement for the nine-month period ended September 30, 1999,
giving effect to its proposed acquisition of American Heritage,
as if such acquisition had occurred as of September 30, 1999,
which proforma balance sheet was compiled, in all material
respects, in conformity with GAAP principles, reflecting the use
of the pooling-of-interests method of accounting, but do not
contain any or all footnotes required by GAAP.
Section 3.7 Information Supplied. When considered
in the aggregate, none of the information supplied or to be
supplied by the Company 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 stockholders of the Company and Gold Banc or at the times of
the meetings of such stockholders to be held in connection with
the Merger, 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 Subsidiaries 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 Subsidiaries
each have timely filed all tax returns required to be filed by
them through the date hereof, and the Company and the
Subsidiaries have timely paid and discharged all taxes shown to
be due on such 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 appropriate Subsidiary 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. As of the date hereof, 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 any Subsidiary, any deficiency or claim for
additional taxes. Neither the Company nor any Subsidiary 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 OREO properties)
of the Company or any Subsidiary other than Liens for taxes which
are not yet due and payable. Neither the Company nor any
Subsidiary 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 and its Subsidiaries.
Section 3.10 Title to Assets. The Company and the
Subsidiaries have good and marketable title to and possession of
all their respective material real and personal properties and
assets reflected in the Company's financial statements as being
owned by the Company or its Subsidiaries, in each case free and
clear of any Liens (except as reflected on the Company's
consolidated financial statements, and except for (i) Liens for
current taxes and assessments not yet due and payable,
(ii) inchoate mechanic and materialmen's Liens for construction
in progress, (iii) workmen's, repairmen's, warehousemen's, and
carrier's and other similar Liens arising in the ordinary course
of business, (iv) for depository institutions, pledges to secure
deposits, (v) other Liens incurred in the ordinary course of the
banking business, and (vi) such imperfections or irregularities
of title or Liens as do not materially affect the use of such
assets or property which are subject thereto, or affect the
business and operations of the Company and its Subsidiaries).
Schedule 3.10(a) hereto contains or incorporates by reference a
complete list of all real property owned by the Company or any
subsidiary (other than OREO properties acquired and held by
Xxxxxxxxx Bank or Elkhart Bank in the ordinary course of
business). Except as set forth on Schedule 3.10(b), since June
30, 1999, neither the Company nor any of the Subsidiaries has
entered into any agreement or commitment to sell any property,
real or personal, or any other assets of the Company or any of
the Subsidiaries other than in the ordinary course of business,
nor has the Company nor any of the Subsidiaries 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 and its Subsidiaries.
Section 3.11 Leases.
(a) Schedule 3.11(a) hereof contains a list of all
real property leases (the "Real Property Leases") to which
the Company or any of the Subsidiaries 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 neither the Company nor any of the
Subsidiaries nor, to the Company's knowledge, any other
party thereto has committed any default thereunder. Neither
the Company nor any of the Subsidiaries is subject to any
increase in rentals or other costs in connection with any
Leased Facility of which the Company or any of the
Subsidiaries is lessee which is not provided for in the
applicable Real Property Lease. 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) 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 any of the Subsidiaries 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 neither the Company
nor any of the Subsidiaries nor any other party thereto has
committed any default thereunder. Neither the Company nor
any of the Subsidiaries is subject to any increase in
rentals or other costs in connection with any Leased
Personal Property of which the Company or any of the
Subsidiaries is the lessee which is not provided for in the
applicable Personal Property Lease. 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) None of the assets of the Company or any of the
Subsidiaries 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, except for software
and the Xxxxxxxxx License duly licensed to the Company or
its Subsidiaries in the ordinary course of business.
(b) Neither the Company nor any of the Subsidiaries
has infringed upon 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. Neither
the Company nor any Subsidiary has 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, which
are necessary to operate or conduct the business of the
Company and its Subsidiaries. The Company or one or more of
the Subsidiaries owns or possesses licenses or other legal
rights, necessary to use such patents, copyrights,
trademarks, trade names and service marks, except for those
the absence of which is not reasonably likely to have a
Material Adverse Effect on the Company and its Subsidiaries.
(d) The Company and each of the Subsidiaries 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 each of
the Subsidiaries, as such business is and has been normally
conducted, except for such matters which would not have a
Material Adverse Effect on the Company and its Subsidiaries.
Section 3.13 Regulatory Filings. The Company and
each of the Subsidiaries 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 Subsidiaries, to the Company's knowledge no
Governmental Entity has initiated any proceeding or investigation
into the business or operations of the Company or any of the
Subsidiaries. To the Company's knowledge there is no unresolved
violation, criticism, or exception by any Governmental Entity
with respect to any written report or statement relating to any
examinations of the Company or any of the Subsidiaries.
Section 3.14 Insurance. Complete and correct copies
of all policies of fire, product or other liability, workers'
compensation and other similar forms of insurance owned or held
by the Company and the Subsidiaries have been delivered or made
available to Gold Banc and Acquisition Subsidiary. 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 Subsidiaries
are parties are sufficient for compliance with all requirements
of Law and all material agreements to which the Company or any of
the Subsidiaries is a party, except for any noncompliance that
would not have a Material Adverse Effect on the Company and its
Subsidiaries, and will be maintained by the Company and the
Subsidiaries until the Effective Time. Neither the Company nor
any of the Subsidiaries has been refused any insurance with
respect to any 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 three (3) years.
Section 3.15 Compliance with ERISA. Neither the
Company nor any of the Subsidiaries has established, maintained
or contributed at any time during the three-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 and Acquisition
Subsidiary 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. 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 and the Subsidiaries, 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 Subsidiaries (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 each of the
Subsidiaries comply in all material respects with all applicable
environmental Laws and neither the condition of any property
owned by the Company or any of the Subsidiaries 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 any of the Subsidiaries 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 any of the Subsidiaries may be
liable; (iii) none of the operations of the Company or any of the
Subsidiaries nor any of the properties owned by the Company or
any of the Subsidiaries 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 any of the
Subsidiaries 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 any of the Subsidiaries; (v) there are
no underground storage tanks now or heretofore located on any
real property owned or leased by the Company or any of the
Subsidiaries; (vi) neither the Company nor any of the
Subsidiaries has ever been notified by a Governmental Entity, or
any private party, that the Company or any of the Subsidiaries 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 Subsidiaries whether
directly owned, leased or classified as OREO. 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 any of the
Subsidiaries, then Gold Banc may terminate this Agreement
pursuant to Section 8.2 hereof. For the purposes hereof, a
"material environmental problem" shall not be deemed to exist
except to the extent that a Phase II Investigation Report
covering such property of the Company or any of its Subsidiaries
reflects, with respect to any such property, that remediation is
necessary and the estimated net cost to Gold Banc or the Company
exceeds, in the aggregate, $100,000, as reasonably estimated by
an environmental expert jointly retained for such purpose by Gold
Banc and CountryBanc within ten (10) Business Days following the
receipt of such Phase II Report by CountryBanc.
Section 3.17 Labor Matters.
(a) The Company and the Subsidiaries 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 and its Subsidiaries.
(b) There is no unfair labor practice complaint
against the Company or any of the Subsidiaries pending
before the National Labor Relations Board.
(c) Neither the Company nor any of the Subsidiaries 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
any of the Subsidiaries.
(d) No grievance or arbitration proceeding by any
employee is pending and no claim therefor has been asserted
against the Company or any of the Subsidiaries.
(e) Neither the Company nor any of the Subsidiaries is
experiencing any material work stoppage.
Section 3.18 Year 2000 Compliance. Each of the
Company and the Subsidiaries has (i) initiated a review and
assessment of all areas material to its business and operations
(including those affected by borrowers, 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 Subsidiaries' respective
business and operations will be Year 2000 Compliant.
Section 3.19 Legal Proceedings. Except as disclosed
in 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 any of
the Subsidiaries, or the right to carry on or conduct their
business, other than collection and foreclosure Actions by
Xxxxxxxxx Bank or Elkhart Bank (and, following its acquisition,
the El Reno Bank) in the ordinary course of 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. The Company
agrees to advise Gold Banc and Acquisition Subsidiary if at any
time between the date hereof and the Effective Time, any legal
proceeding as described in this paragraph is initiated or, to the
knowledge of the Company, threatened.
Section 3.20 Contracts. Except as set forth on
Schedule 3.20 hereof, neither the Company nor any of the
Subsidiaries is a party to or subject to any:
(a) employment, consulting, non-compete, severance or
similar contract;
(b) bonus, deferred compensation, equity incentive,
savings, profit sharing, severance pay, pension or
retirement plan or arrangement, except for the Company Plans
referenced in Section 3.15 hereof;
(c) agreement, contract or indenture relating to the
borrowing of money by the Company or any of the
Subsidiaries, excluding items made in the ordinary course of
business (it being understood, with reference to Xxxxxxxxx
Bank, Elkhart Bank and El Reno Bank, that in the ordinary
course of business includes, among other things, agreements,
contracts, and other instruments and commitments evidencing
deposit liabilities, the purchase of federal funds, sales of
certificates of deposits, advances from the Federal Reserve
Bank or the Federal Home Loan Bank, fully secured repurchase
agreements, or agreements, contracts, and other instruments,
and commitments and understandings relating to borrowings or
guarantees made by Xxxxxxxxx Bank, Elkhart Bank or El Reno
Bank in the ordinary course of its business); or
(d) 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 any of the Subsidiaries or
which involve a payment by the Company or any of the
Subsidiaries of more than $20,000 on an annual basis, other
than loans and investments made in the ordinary course of
business.
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 any of
the Subsidiaries of this Agreement or any of the transactions
contemplated hereby.
Section 3.22 Broker's Fees. Other than the engagement
of Xxxxx, Xxxxxxxx & Xxxxx, Inc. and Xxxxx described on Schedule
3.22 hereto, neither the Company, the Subsidiaries nor any of the
directors, trustees, officers or employees of the Company or any
of the Subsidiaries, 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. From June
30, 1999 until the date hereof, there has been no Material
Adverse Change in the Company and its Subsidiaries or in the
relationship of the Company or any of the Subsidiaries with
respect to their employees, creditors, suppliers, distributors,
customers or others with whom they have business relationships
which are reasonably likely to have a Material Adverse Effect on
the Company and its Subsidiaries.
Section 3.24 Loans.
(a) As of the date hereof, neither Xxxxxxxxx Bank,
Elkhart Bank nor First State is 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, Xxxxxxxxx Bank, Elkhart Bank
or First State or any Governmental Entity, except as
reflected on the OREO list or Schedule 3.24(a) previously
provided to Gold Banc and Acquisition Subsidiary prior to
the date hereof;
(b) Except as set forth in Schedule 3.24(b) hereto,
neither the Company nor any Subsidiary is a party to any
written or oral loan agreement, note, or borrowing
arrangement, including any loan guaranty, with any present
or former director or executive officer of the Company or
any Subsidiary, or any person, corporation or enterprise
controlling, controlled by or under common control with any
of the foregoing;
(c) Neither the Company nor any Subsidiary 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 and the Subsidiaries.
Section 3.25 Opinion of Financial Adviser. The
Company has received the written opinion of Xxxxx, investment
adviser to the Company, to the effect that, as of the date
hereof, the Exchange Ratio is fair, from a financial point of
view, to holders of Company Common Stock and Company Preferred
Stock.
Section 3.26 Accounting Matters. Neither the Company
nor any of the Subsidiaries has through the date of this
Agreement 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.
Section 3.27 Beneficial Ownership of Gold Banc Common
Stock. As of the date hereof, neither the Company nor any of the
Subsidiaries "beneficially owns" (as defined in Rule 13d-3 under
the Exchange Act) any Gold Banc Common Stock.
Section 3.28 Deductibility of Severance Payments. No
severance or other payments (if any) required to be made by the
Company, any of the Subsidiaries, Gold Banc, or any of Gold
Banc's subsidiaries by reason of the Merger or upon a change in
control of the Company will constitute non-deductible "parachute
payments" under Section 280G of the Code.
Section 3.29 Stay Bonuses and Employment Agreements.
The Company acknowledges that it has entered into stay bonus
arrangements with certain nonexecutive employees of the Company
and its Subsidiaries. The Company further acknowledges that it
has entered into Employment Agreements with Xxxxxxx Xxxxxxx and
Xxxxx Xxxxxxxxxxxx, and that each of such agreements has been
previously delivered to Gold Banc.
Section 3.30 Accruals.
(a) The Company and its Subsidiaries have properly
accrued or currently paid and expensed, consistent with past
practices, for all mandatory and discretionary matching
contributions to the Company's 401(k) Plan through the date
hereof.
(b) The Company and its Subsidiaries 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 3.31 Undisclosed Liabilities; Adverse
Agreements.
(a) Except as disclosed in the Schedules hereto, or as
disclosed in the Company Financial Statements, or incurred
in the ordinary course of business consistent with past
practices since June 30, 1999, there are no liabilities of
the Company or any of the Subsidiaries 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 and
the Subsidiaries.
(b) Neither the Company nor any of the Subsidiaries is
a party to any Order which is reasonably likely to result in
a Material Adverse Effect on the Company and any of the
Subsidiaries.
Section 3.32 Absence of Certain Events. Except as
contemplated by this Agreement and set forth in Schedule 3.32
hereof, since June 30, 1999, the Company and the Subsidiaries
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 any of the Subsidiaries, (ii) any amendment of any term of any
outstanding security of the Company or any of the Subsidiaries,
(iii) any repurchase, redemption or other acquisition by the
Company or any of the Subsidiaries of any outstanding shares of
capital stock or other securities of, or other ownership
interests in, the Company or any of the Subsidiaries, (iv) any
incurrence, assumption or guarantee by the Company or any of the
Subsidiaries of any indebtedness for borrowed money (other than
deposit liabilities, the purchase of federal funds, sales of
certificates of deposit, advances from the Federal Reserve Bank
or the Federal Home Loan Bank, or fully secured repurchase
agreements); (v) any creation or assumption by the Company or any
of the Subsidiaries 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 or its Subsidiaries; (vi) any making of any
material loan, advance or capital contributions to or any
material investment in any Person except for loans and
investments made in the ordinary course of business; (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 any
of the Subsidiaries, (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 any of the Subsidiaries,
(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 any of the
Subsidiaries or (d) increase in compensation, bonus or other
benefits payable to any director, officer or employee of the
Company or any of the Subsidiaries other than normal annual and
merit raises consistent with past practices; 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 and the Subsidiaries.
Section 3.33 Disclosure. Copies of all documents
heretofore or hereafter delivered or made available to Gold Banc
or Acquisition Subsidiary pursuant hereto are and will be
complete and accurate in all material respects. No
representation or warranty of the Company in this Agreement or
any other document delivered pursuant hereto or any statement,
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. There is no fact which the Company
has not disclosed in writing to Gold Banc or the Acquisition
Subsidiary which is reasonably likely to have a Material Adverse
Effect on the Company, or any of the Subsidiaries.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF GOLD BANC
Gold Banc hereby makes the following representations
and warranties to the Company, each of which (i) is true and
correct on the date hereof, (ii) will be true and correct as of
the Effective Time and (iii) each of which shall be unaffected by
any investigation heretofore or hereafter made by the Company or
its representatives.
Section 4.1 Corporate.
(a) Gold Banc. 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) Acquisition Subsidiary. Acquisition Subsidiary is
a wholly-owned subsidiary of the Company and is a
corporation duly organized, validly existing and in good
standing under the laws of the State of Kansas. Acquisition
Subsidiary 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
Acquisition Subsidiary.
(c) Other Gold Banc Subsidiaries. Schedule 4.1
includes a complete list of direct and indirect
subsidiaries of Gold Banc (the "Gold Banc Subsidiaries'), as
of the date of this Agreement. Gold Banc or one of its
subsidiaries owns all of the issued and outstanding shares
of capital stock of each of the Gold Banc subsidiaries. All
shares of the capital stock of each of the Gold Banc
Subsidiaries are fully paid and nonassessable under the
applicable corporate Law of the jurisdiction in which such
Gold Banc Subsidiary is incorporated or organized (except,
in the case of Gold Banc Subsidiaries that are national
banks, for the assessment contemplated by
12 U.S.C. Section 55), and are owned by Gold Banc or one of
the other Gold Banc Subsidiaries. Each of the Gold Banc
Subsidiaries (i) is either a bank, a corporation, a limited
liability company or a Delaware business trust and is duly
organized, validly existing and in good standing under the
laws of the jurisdiction in which it is incorporated or
organized, (ii) is duly qualified to do business and in good
standing in all jurisdictions where the character of its
properties, assets owned, operated or leased by it, or the
nature of its activities make such qualification necessary,
except where the failure to be so qualified is not
reasonably likely to have a Material Adverse Effect on such
Gold Banc Subsidiary, and (iii) has the corporate power and
authority to own, lease and operate its properties and
assets and to carry on its business as now conducted.
Section 4.2 Capital Structure.
(a) Gold Banc. As of the date hereof, the authorized
capital stock of Gold Banc consists 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) Acquisition Subsidiary. The authorized capital
stock of Acquisition Subsidiary consists of 1,000,000 shares
of common stock, par value $1.00 per share, of which 1,000
shares are issued and outstanding. All of the issued and
outstanding shares of common stock of Acquisition Subsidiary
are owned beneficially and of record, free and clear of all
Liens, by Gold Banc. All outstanding shares of common stock
of Acquisition Subsidiary 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 , subject, with respect to consummation
of the Merger, to approval of this Agreement and the Merger
by the stockholders of Gold Banc in accordance with Rule
4460 of the National Association of Securities Dealers'
rules for issuers under Nasdaq ("Rule 4460"), 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 and
thereto, 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, subject, with respect to consummation of the
Merger, to approval of this Agreement and the Merger by the
stockholders of Gold Banc in accordance with Rule 4460.
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,
subject, with respect to consummation of the Merger, to such
approval of the Agreement and the Merger by the stockholders
of Gold Banc in accordance with Rule 4460, and (assuming due
authorization, execution, and delivery by the Company)
constitutes, or will constitute, the legal, valid and
binding obligations of Gold Banc, enforceable against Gold
Banc in accordance with their terms (except in all cases to
the extent that such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization,
moratorium, or similar Laws affecting the enforcement of
Creditor's rights and remedies generally and except that the
availability of the equitable remedy of specific performance
and injunctive relief is subject to the discretion of the
court before which any proceedings may be brought).
(b) Acquisition Subsidiary has all requisite corporate
power and authority to enter into this Agreement and all
other agreements to be executed and delivered by Acquisition
Subsidiary pursuant hereto and, subject, with respect to
consummation of the Merger, to approval of this Agreement
and the Merger by the stockholders of Acquisition Subsidiary
in accordance with the KGCC, 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 Acquisition Subsidiary pursuant hereto and
thereto, the performance of Acquisition Subsidiary'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 Acquisition Subsidiary, subject, with respect to
consummation of the Merger, to approval of this Agreement
and the Merger by the stockholders of Acquisition Subsidiary
in accordance with the KGCC. This Agreement has been, and
all other agreements to be executed and delivered by
Acquisition Subsidiary will be prior to the Effective Time,
duly executed and delivered by Acquisition Subsidiary,
subject, with respect to consummation of the Merger, to such
approval of the Agreement and the Merger by the stockholders
of Acquisition Subsidiary in accordance with the KGCC, and
(assuming due authorization, execution, and delivery by the
Company) constitutes, or will constitute, the legal, valid
and binding obligations of Acquisition Subsidiary,
enforceable against Acquisition Subsidiary in accordance
with their terms (except in all cases to the extent that
such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, or similar Laws
affecting the enforcement of Creditor's rights and remedies
generally and except that the availability of the equitable
remedy of specific performance and injunctive relief is
subject to the discretion of the court before which any
proceedings may be brought).
Section 4.4 Stockholder 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 the transactions contemplated hereby. The
affirmative vote of the holders of a majority of the shares
of Gold Banc Common Stock represented at a meeting of Gold
Banc's stockholders at which a quorum is present 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 transactions contemplated hereby. No
approval of a number of outstanding shares of capital stock
of Gold Banc greater than that required by Rule 4460 is
required for approval of this Agreement and the consummation
of the transactions contemplated hereby.
(b) The Board of Directors of Acquisition Subsidiary
has agreed to this Agreement and the transactions
contemplated hereby.
Section 4.5 Status of Gold Banc Common Stock to be
Issued. The shares of Gold Banc Common Stock into which the
Company Common Stock and Company Preferred Stock and Company
Stock Options are to be exchanged or converted pursuant to this
Agreement will be, when delivered as specified in this 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 Acquisition Subsidiary pursuant hereto, the
performance of the obligations of Gold Banc and Acquisition
Subsidiary 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 Acquisition Subsidiary (ii) any provision of any
Contract, Lien, Order or other restriction of any kind or
character to which Gold Banc or Acquisition Subsidiary is a
party, or by which Gold Banc or Acquisition Subsidiary, 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 Acquisition Subsidiary, 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 and
Acquisition Subsidiary.
(b) Gold Banc and Acquisition Subsidiary have 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 Acquisition
Subsidiary.
(c) All Licenses required or necessary for the Gold
Banc or Acquisition Subsidiary to carry on their respective
businesses as they are currently conducted have been
obtained and are in full force and effect. Gold Banc and
Acquisition Subsidiary are in compliance with all terms of
the Licenses, except where the failure to so comply would is
not reasonably likely to have a Material Adverse Effect on
Gold Banc or Acquisition Subsidiary.
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, 1996 (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, each of
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 (except any statements or omissions therein which were
corrected or otherwise disclosed or updated in a subsequent Gold
Banc SEC Document). 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 were 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.
Section 4.8 Information Supplied. When considered
in the aggregate, 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, 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 stockholders of the Company and Gold Banc or at the times of
the meetings of such stockholders to be held in connection with
the Merger, 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 4.9 Internal Controls and Records. Gold
Banc maintains 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 4.10 Taxes. Gold Banc has timely filed, or
requests for extensions have been timely filed for, all tax
returns required to be filed by them through the date hereof, and
Gold Banc has timely paid and discharged all taxes shown to be
due and has timely paid all other taxes as are due, except that
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. Gold Banc has not
been advised that the IRS or 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, any
deficiency or claim for additional taxes. Gold Banc has not
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 OREO properties)
of Gold Banc other than liens for taxes which are not yet due and
payable. Gold Banc has not 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 or the Gold Banc Subsidiaries.
Section 4.11 Regulatory Filings. 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, no
Governmental Entity has initiated any proceeding or investigation
into the business or operations of Gold Banc. To Gold Banc's
knowledge, 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.
Section 4.12 Compliance with ERISA. Each employee
benefit plan (as defined in Sections 3(3) or 3(37) of ERISA) of
Gold Banc or any of its subsidiaries or other similar plan of
Gold Banc or any of its subsidiaries with respect to which any
governmental filings are required (collectively, the "Gold Banc
Plans") and each fiduciary (as defined in Section 3(21) of ERISA)
of the Gold Banc 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 4.12,
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 Gold Banc Plans or of Gold Banc
and its subsidiaries, taken as a whole, either as of the date
hereof or upon discovery of the noncompliance. All required
contributions to the Gold Banc Plans through the date hereof have
been made. Gold Banc and its subsidiaries (each with respect to
the Gold Banc Plans), as well as the Gold Banc Plans, have no
material current or, to the knowledge of Gold Banc, 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 4.13 Environmental Laws. To the best
knowledge Gold Banc: (i) the operations of Gold Banc and each of
its subsidiaries comply in all material respects with all
applicable federal, state and local environmental Laws and
neither the condition of any property owned by Gold Banc or any
of its subsidiaries 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 Gold Banc or
any of its subsidiaries 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
Gold Banc or any of its subsidiaries may be liable; (iii) none of
the operations of Gold Banc or any of its subsidiaries nor any of
the properties owned by Gold Banc or any of its subsidiaries 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 material violation of any environmental Law and
neither Gold Banc or any of its subsidiaries has 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 Gold Banc or any of its
subsidiaries; (v) there are no underground storage tanks now or
heretofore located on any real property owned or leased by Gold
Banc or any of its subsidiaries; (vi) neither Gold Banc nor any
of its subsidiaries has ever been notified by a Governmental
Entity, or any private party, that Gold Banc or any of its
subsidiaries 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 nor Liability
Act, 42 U.S.C. Sections 9601, et seq. or any corresponding state
law.
Section 4.14 Year 2000 Compliance. Each of Gold Banc
and its subsidiaries 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 its subsidiaries' respective business and operations will be
Year 2000 Compliant.
Section 4.15 Legal Proceedings. Except as disclosed
in Schedule 4.15 hereof, there are no Actions pending or
threatened against or affecting the properties, assets, rights or
business of Gold Banc or its subsidiaries, or the right to carry
on or conduct its business. 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 4.16 Required Consents. Except as set forth
in Schedule 4.16 hereof, no Consent of any Person or Governmental
Entity is necessary for the consummation by Gold Banc or
Acquisition Subsidiary of this Agreement or any of the
transactions contemplated hereby other than any Consent, which if
not obtained, would not be reasonably likely to have a Material
Adverse Effect on Gold Banc.
Section 4.17 Conduct. From June 30, 1999 until the
date hereof: (a) there has been no material adverse change in
the financial condition of, or in the properties, assets,
liabilities, rights or business, taken as a whole, of Gold Banc
or any of its subsidiaries or in the relationship of Gold Banc or
any of its subsidiaries with respect to their employees,
creditors, suppliers, distributors, customers or others with whom
they have business relationships; and (b) the business affairs of
Gold Banc and its subsidiaries have been conducted and carried on
only in their ordinary and regular course of business, and
neither Gold Banc nor any of its subsidiaries has incurred or
become subject to any liabilities or obligations other than those
incurred in their ordinary course of business.
Section 4.18 Undisclosed Liabilities; Adverse
Agreements.
(a) Except as disclosed in the Schedules hereto, or
disclosed in Gold Banc's financial statements included in
the Gold Banc SEC Documents, or incurred in the ordinary
course of business consistent with past practice since June
30, 1999, there are no liabilities of Gold Banc or any of
its subsidiaries 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 and its subsidiaries.
(b) Neither Gold Banc nor any of its subsidiaries is a
party to any Contract or any Order, or subject to any Law,
which materially and adversely affects or is reasonably
likely to result in a Material Adverse Effect on Gold Banc.
Section 4.19 Material Contracts. Except as disclosed
in Schedule 4.19 hereto, all material contracts, leases,
agreements, commitments and other instruments to which Gold Banc
or any of the Gold Banc or any of its subsidiaries are a party,
and which are required to be filed as an Exhibit to a Gold Banc
SEC Document under the rules and regulations of the SEC under the
Securities Act or the Exchange Act have been so filed.
Section 4.20 Broker's Fees. Neither Gold Banc,
Acquisition Subsidiary nor any of their respective 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 4.21 No Material Adverse Change. From June
30, 1999 until the date hereof, there has been no Material
Adverse Change in Gold Banc and its subsidiaries or in the
relationship of Gold Banc or any of its subsidiaries with respect
to their employees, creditors, suppliers, distributors, customers
or others with whom they have business relationships which are
reasonably likely to have a Material Adverse Effect on Gold Banc
and its subsidiaries.
Section 4.22 Disclosure. Copies of all material
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 material document delivered pursuant
hereto or any material 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. 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 THE COMPANY
Section 5.1 Affirmative Covenants of the Company.
During the period from the date of this Agreement until the
earlier of the Effective Time or the termination of this
Agreement, unless the prior written consent of Gold Banc shall
have been obtained, and which consent will be given or denied
within two (2) Business Days of receipt of written request for
such consent, and except as otherwise expressly contemplated
herein, the Company shall, and shall cause each of the
Subsidiaries 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 each of the Subsidiaries' relationships with
suppliers, customers and employees, (iv) perform the Company's
and the Subsidiaries' 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 hereof, (vii) provide updates to Gold Banc and
Acquisition Subsidiary with respect to those loans reflected on
the list previously provided to Gold Banc and Acquisition
Subsidiary as referenced on Schedule 3.25(b) attached hereto, and
(viii) except as may be required in the exercise of the fiduciary
duties of the Company's Board of Directors, 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 and except as
may be required in the exercise of the fiduciary duties of the
Company's Board of Directors, 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 either of its Subsidiaries to do or
agree or 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 (2) 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 other
than renewals of existing loans or commitments to loan;
(b) purchase or invest in any securities, other than
in compliance with the investment policy of the Xxxxxxxxx
Bank as in effect on the date hereof, or make any material
change in its investment portfolio;
(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
regular annual and merit increases in accordance with past
practices, any written employment agreement of the Company
existing as of the date hereof or any written employment
agreement which will be entered into as a result of the
Company's acquisition of American Heritage, any mandatory or
discretionary employer matching contributions to any Company
Plans existing as of the date hereof, or any payment
pursuant to any bonus plan or bonus agreement existing as of
the date hereof and which bonus payments are being accrued
by the Company, or as may be required by Law;
(d) make any capital expenditure or enter into any
material contract or commitment (except as permitted in
subparagraphs (a) and (r) 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) declare or pay any dividend or make any other
distribution in respect of any capital stock of or other
beneficial interest in the Company, other than any dividends
paid by the Subsidiaries to the Company for the purpose of
satisfying its obligations under the Union Bank Loan and to
enable the Company to pay its other expenses consistent with
past practices; or any of its Subsidiaries, 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 either of its
Subsidiaries.
(f) amend the Certificate of Incorporation, Bylaws or
any other governing document of the Company or any of its
Subsidiaries or make any change in the authorized, issued or
outstanding capital stock (or any change in the par value
thereof) of the Company or any of its Subsidiaries, except
as may be required by the Company's acquisition of American
Heritage;
(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, but subject to Section 5.2(a);
(h) 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 any of its Subsidiaries, 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) knowingly 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) except in the ordinary course of business, create,
renew, amend or terminate or give notice of a proposed
renewal, amendment or termination of, any material Contract
to which the Company or any of its Subsidiaries is a party
or by which the Company or any of its Subsidiaries or their
respective properties is bound;
(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 any of its
Subsidiaries 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 right, forgive any material debt or
release any material claim which, with respect to any
individual matter, exceeds $50,000 (all such matters in the
aggregate not to exceed $150,000); or
(r) incur or guaranty any debt (other than instruments
and commitments evidencing deposit liabilities in Xxxxxxxxx
Bank or Elkhart Bank (and after its acquisition, the El Reno
Bank), the purchase of federal funds, sales of certificates
of deposits, borrowings from a Federal Reserve Bank or
advances from a Federal Home Loan Bank or fully secured
repurchase agreements).
Section 5.3 Inspection. Between the date hereof and
the Closing Date and upon reasonable notice and subject to
applicable Laws, 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 any of its Subsidiaries. The Company shall furnish
to Gold Banc and its authorized representatives all information
with respect to the affairs of the Company and any 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, to the
extent permitted by Law the Company shall deliver to Gold Banc
monthly reports of condition and income statements for each of
the applicable Subsidiaries and shall deliver to Gold Banc copies
of the call reports for each of the applicable Subsidiaries as
filed with any regulatory agency promptly after such filing.
Section 5.5 Right to Attend Meetings. The Company
shall allow a representative of Gold Banc to attend as an
observer all meetings of the Board of Directors of the Company
and any Subsidiary and all meetings of the committees of each
such board, including, without limitation, the audit and
executive committees thereof and any other meetings of the
Company's or any Subsidiary's officials at which policy is being
made; provided, that representatives of Gold Banc shall not be
permitted to attend any portion of any meeting at which officers
or directors of the Company or any Subsidiary discuss this
Agreement and the transactions contemplated hereby. The Company
and any Subsidiary shall give reasonable notice to Gold Banc of
any such meeting (which notice shall be deemed reasonable if
given at substantially the same time notice of such meeting is
provided to the directors of the Company or any Subsidiaries, as
applicable; provided, however, that such notice shall be at least
three (3) Business Days prior to such meeting) and, if known, the
agenda for or business to be discussed at such meeting. The
Company and any Subsidiary shall provide to Gold Banc all
information provided to the directors on all such boards and
committees in connection with all such meetings or otherwise
provided to the directors and shall provide any other financial
reports or other analyses prepared for senior management of the
Company or the Subsidiaries. All such information provided to
Gold Banc or discussed at any of the meetings described herein at
which a Gold Banc observer is present shall constitute "Company
Confidential Information" within the meaning of Section 6.6 of
this Agreement.
Section 5.6 Data Processing. The Company shall, and
shall cause each of its Subsidiaries to, make all reasonable
efforts to cooperate with Gold Banc in taking those planning
actions necessary to be in a position to convert, as soon as
practicable after the Effective Time, 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) None of the Company, any Subsidiary, or any
stockholder, officer, director, trustee or employee of, or
any investment banker, attorney or other advisor or
representative of, the Company or any Subsidiary, shall,
directly or indirectly, (i) solicit, initiate, facilitate,
assist 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,
Acquisition Subsidiary, an affiliate or associate of Gold
Banc or Acquisition Subsidiary or an officer, employee or
other authorized representative of Gold Banc, Acquisition
Subsidiary or such affiliate or associate or the Company's
Counsel, Company's Accountants and financial adviser, solely
for use in connection with the transactions contemplated
hereby) any information with respect to the Company or any
Subsidiary 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.
Section 5.8 Regulatory Approvals. Subject to the
terms and conditions of this Agreement, the Company agrees to,
and to cause each of its Subsidiaries 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-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 or Company Preferred Stock who dissents from the
Merger).
Section 5.11 Pooling-of-Interests Accounting
Treatment.
(a) 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 from
receiving pooling-of-interests accounting treatment.
(b) Within thirty (30) days after the execution and
delivery of this Agreement, the Company shall 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, and will be eligible to
participate in a pooling-of-interests transactions after it
completes its acquisition of American Heritage (the "Pooling
Letter").
Section 5.12 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 and Acquisition Subsidiary in connection therewith,
including using commercially reasonable efforts to obtain all
required Consents.
Section 5.13 Year 2000 Compliance. With respect to
all computer hardware, computer software applications, and
Subsidiary services and products, the Company shall, and shall
cause the Subsidiaries to (i) use commercially reasonable efforts
to comply with all Federal Financial Institution Examination
Council Year 2000 regulations and guidelines and (ii) take all
action commercially reasonably necessary to receive a rating of
"Satisfactory" or better on any Year 2000 compliance examination
conducted by their respective examining agencies.
Section 5.14 Proxy Statement and Registration
Statement. If at any time prior to the Effective Time any event
with respect to the Company or the Subsidiaries, or with respect
to other information supplied by the Company 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 Proxy Statement or the Registration Statement, the Company
will promptly notify Gold Banc of such event and use all
commercially reasonable efforts to ensure that such event will be
so described, and that such amendment or supplement be promptly
filed with the SEC and, as required by law, disseminated to the
stockholders of the Company. The Company shall use all
commercially reasonable efforts to ensure that the Proxy
Statement, insofar as it relates to the Company or the
Subsidiaries or other information supplied by the Company 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 at the time of the mailing of the
Proxy Statement or any supplement thereof.
Section 5.15 Confidentiality. Except as and to the
extent required by Laws, the Company and the Subsidiaries 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, any of its subsidiaries 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, any of its subsidiaries or their representatives not
bound by a duty of confidentiality or such information becomes
publicly available through no fault of the Company, any of its
subsidiaries 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 Subsidiaries 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) consistent
with past practices, make a discretionary profit sharing
contribution (not to exceed (6%) of the employees' compensation,
as defined under the 401(k) Plan) to the 401(k) Plan for the
partial plan year ending on the 401(k) Plan termination date;
(iii) except as set forth immediately above in (i) and (ii) of
this paragraph, cease all other contributions to the 401(k) Plan
as of the day before the Closing Date; (iv) terminate the 401(k)
Plan and fully vest all participant account balances in such plan
as of the day before the Closing Date; (v) resign as plan
administrator of the 401(k) Plan; and (vi) secure the resignation
of the current trustees of the 401(k) Plan. The Surviving
Corporation 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 Deductibility of Severance Payments.
(a) The Company shall, and shall cause each of the
Subsidiaries to, ensure that no severance or other payments
made by the Company or any of the Subsidiaries constitute
non-deductible "parachute payments" under Section 280G of
the Code.
(b) The Company shall obtain and deliver to Gold Banc
on or prior to the Closing Date the 280G Opinion Letter
contemplated by Section 8.14 hereof.
Section 5.18 Achievement of Financial Measures. The
Company shall use commercially reasonable efforts, and shall
cause Xxxxxxxxx Bank, Elkhart Bank and First State to use
commercially reasonable efforts, to cause the Company, Xxxxxxxxx
Bank, Elkhart Bank and First State to satisfy the financial
measures set forth in Section 8.5 hereof by the Closing Date.
Section 5.19 Company's Accounting of Merger Expenses.
Subject to the requirements of GAAP, the Company shall defer
recognition of all of its out-of-pocket expenses relating to the
Merger (including, without limitation, the fees and expenses of
the Company's Counsel, the Company's Accountants, Xxxxx, Xxxxxxxx
& Xxxxx, Inc. and Xxxxx, and all severance payments (if any)),
and account for such expenses as pooling costs. The Company
shall not recognize such expenses in its monthly income
statements and such expenses shall not be included in the
calculation of the financial measures set forth in Section 8.5
hereof.
Section 5.20 Company's Acquisition of American
Heritage. The covenants set forth in this Article V shall not
prevent the Company from taking all actions necessary to
consummate its acquisition of American Heritage.
Section 5.21 Supplemental Information. The Company
agrees that, with respect to the representations and warranties
of the Company contained in this Agreement, the Company will have
the continuing obligation until the ClosingDate to promptly
provide Gold Banc with such additional supplemental Information
(collectively, the "Company Supplemental Information"), in the
form of (a) amendments to then existing Schedules or (b)
additional Schedules, as would be necessary, in light of the
circumstances, conditions, events and states of fact then known
to the Company, to make each of those representations and
warranties true and correct as of the Closing Date. The
Schedules to this Agreement as of the Closing Date will be deemed
to be the Schedules to this Agreement as of the date hereof as
amended or supplemented by the Company Supplemental Information
provided to Gold Banc prior to the Closing Date pursuant to this
Section 5.21; provided, however, that if the Company Supplemental
Information so provided (i) has had a Material Adverse Effect on
the Company, or, (ii) is having or will have a Material Adverse
Effect on the Company, Gold Banc will be entitled to terminate
this Agreement by notice to the Company.
ARTICLE VI
COVENANTS OF GOLD BANC AND ACQUISITION SUBSIDIARY
Section 6.1 Regulatory Approvals. Subject to the
terms and conditions of this Agreement, Gold Banc and Acquisition
Subsidiary agree to use their reasonable best efforts to secure
as expeditiously as practicable all the necessary approvals,
regulatory or otherwise, needed to consummate the transactions
contemplated herein and agree to exercise best efforts to file
applications relating to such approvals within thirty (30) days
from the date hereof or as soon thereafter it is reasonably
possible. Gold Banc and Acquisition Subsidiary 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.
Section 6.2 Information. Gold Banc and Acquisition
Subsidiary 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 and Acquisition Subsidiary herein.
Section 6.3 Tax-Free Reorganization Treatment.
Neither Gold Banc nor Acquisition Subsidiary shall 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 a Subsidiary shall be
eligible to participate in all Gold Banc employee benefit plans
(as defined in Sections 3(3) or 3(37) of ERISA) 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
any Subsidiary prior to the Effective Time.
Section 6.5 Confidentiality. Except as and to the
extent required by Laws, Gold Banc and Acquisition Subsidiary
will not disclose or use, and will direct their representatives
not to disclose or use to the detriment of the Company or any of
the Subsidiaries any Company Confidential Information, furnished,
or to be furnished, to Gold Banc, Acquisition Subsidiary 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 Subsidiaries and their
business unless (a) such information is already known to Gold
Banc, Acquisition Subsidiary or their representatives not bound
by a duty of confidentiality or such information becomes publicly
available through no fault of Gold Banc, Acquisition Subsidiary
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 Acquisition Subsidiary 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 6.6 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 6.7 Cooperation by Gold Banc and Acquisition
Subsidiary. Gold Banc and Acquisition Subsidiary 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.
Section 6.8 Year 2000 Compliance. With respect to
all computer hardware, computer software applications, and
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 6.9 Ordinary Course. During the period from
the date of this Agreement until the earlier of the Effective
Time or the termination of this Agreement, Gold Banc and
Acquisition Subsidiary shall carry on their respective businesses
in the usual, regular and ordinary course in all material
respects, in substantially the same manner as heretofore
conducted, and shall use all reasonable efforts to preserve
intact their present lines of business, maintain their rights and
franchises and preserve their relationships with customers and
others having business dealings with them to the end that their
ongoing businesses shall not be impaired in any material respect
at the Effective Time. The covenant set forth in this Section
6.9 shall not prevent Gold Banc from taking all actions necessary
to consummate its acquisitions of Union Bank Shares, Ltd. and
American Bancshares, Inc.
Section 6.10 Inspection. Between the date hereof and
the Closing Date and upon reasonable notice and subject to
applicable laws, the Company and its authorized representatives
shall be permitted full access during reasonable business hours
to all properties, books, records, contracts and documents of
Gold Banc and its subsidiaries. Gold Banc shall furnish to the
Company and its authorized representatives all information with
respect to the affairs of Gold Banc and any of its subsidiaries
as the Company may reasonable request.
Section 6.11 Indemnification of Directors and
Insurance.
(a) The Surviving Corporation shall indemnify, defend,
and hold harmless the present directors, officers,
employees, and agents of the Company and its Subsidiaries
together with any Person who becomes a director, officer,
employee or agent of the Company or a Subsidiary, (each, an
"Indemnified Party") after the Effective Time against all
Damages in connection with any Action arising out of actions
or omissions occurring at or prior to the Effective Time
(including the transactions contemplated by this Agreement)
to the full extent permitted under Oklahoma Law and by the
Company's Certificate of Incorporation and Bylaws as in
effect as of the date hereof, including any provisions
relating to advances of expenses incurred in the defense of
any action, suit or proceeding. Gold Banc shall cause the
Surviving Corporation and all other relevant Gold Banc
subsidiaries to apply such rights of indemnification in good
faith and to the fullest extent permitted by applicable Law.
(b) With respect to all persons who are currently
covered by the Company's directors' and officers' liability
insurance, or will become covered by such insurance prior to
the Effective Time, the Surviving Corporation shall maintain
in effect for a period of not less than three years
following the Effective Time the current directors' and
officers' liability insurance maintained by the Company
(provided that the Surviving Corporation may substitute
therefor policies of at least equivalent coverage containing
terms and conditions and coverages which are no less
advantageous to the current directors and officers of the
Company) with respect to matters occurring prior to the
Effective Time.
(c) If the Surviving Corporation or any of its
successors or assigns shall consolidate with or merge into
any other corporation or entity and shall not be the
continuing or surviving corporation or entity of such
consolidation or merger or shall transfer all or
substantially all of its assets to any person, corporation
or entity, then in each case, proper provision shall be made
so that the successors and assigns of the Surviving
Corporation shall assume the obligations set forth in this
Section 6.11.
(d) The provisions of this Section 6.11 are intended
to be for the benefit of and shall be enforceable by, each
Indemnified Party, his or her heirs and representatives, and
shall survive the consummation of the Merger and be binding
on all successors and assigns of the Surviving Corporation.
Section 6.12 Supplemental Information. Gold Banc
agrees that, with respect to the representations and warranties
of Gold Banc contained in this Agreement, Gold Banc will have the
continuing obligation until the Closing Date to promptly provide
the Company with such additional supplemental Information
(collectively, the "Gold Banc Supplemental Information"), in the
form of (a) amendments to then existing schedules or (b)
additional Schedules, as would be necessary, in light of the
circumstances, conditions, events and states of fact then known
to any Gold Banc, to make each of those representations and
warranties true and correct as of the Closing Date. The
Schedules to this Agreement as of the Closing Date will be deemed
to be the Schedules to this Agreement as of the date hereof as
amended or supplemented by the Gold Banc Supplemental Information
provided to the Company prior to the Closing Date pursuant to
this Section 6.12, provided, however, that if the Gold Banc
Supplemental Information so provided (i) has had a Material
Adverse Effect on Gold Banc or, (ii) is having or will have a
Material Adverse Effect on Gold Banc, the Company will be
entitled to terminate this Agreement by notice to Gold Banc.
Section 6.13 Tax Returns. Within sixty (60) days
after the Closing Date, the Surviving Corporation shall prepare
and file consolidated federal and state income tax returns for
the Company and its Subsidiaries covering the stub period
beginning on the first day of the Company's current fiscal year
and ending at the Effective Time, which returns shall be reviewed
by Gold Banc's Accountants.
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 and
Acquisition Subsidiary 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. Each of Gold Banc and
Acquisition Subsidiary 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 the President
and CFO 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 Stockholders. The
stockholders 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, the Certificate
of Incorporation and Bylaws of the Company, and the Company
Subscription Agreements (to the extent required to terminate the
Company Subscription Agreements); 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 and Acquisition Subsidiary , and the rules of
Nasdaq.
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 its subsidiaries, 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 stockholders in form
and substance reasonably satisfactory to the Company and the
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
stockholders 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 or receive cash in lieu of fractional
shares.
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 Registration Statement. The
Registration Statement referenced in Section 10.1 shall have been
declared effective and the parties hereto shall have taken all
actions required pursuant to Article X hereof, and no stop orders
suspending the effectiveness of the Registration Statement shall
have been issued, and no action, suit, proceeding, or
investigation by the SEC to suspend the effectiveness thereof
shall have been initiated and continuing, and all necessary
Consents under applicable blue sky or state securities Laws or
the Securities Act or the Exchange Act relating to the issuance
or trading of the Gold Banc Common Stock issuable pursuant to the
Merger shall have been received.
Section 7.9 Market Price of Gold Banc Common Stock.
The Closing Gold Banc Stock Price shall not be less than $9.50.
If the Closing Gold Banc Stock Price is less than $9.50, then
Gold Banc and the Company shall in good faith attempt to
negotiate a mutually acceptable revised Exchange Ratio.
Section 7.10 Nasdaq Listing. The Gold Banc Common
Stock to be issued pursuant to the Merger shall have been
approved and authorized for quotation on Nasdaq upon official
notice of issuance.
Section 7.11 Fairness Opinion. The Company shall
have received an opinion, as of the date of this Agreement,
rendered by Xxxxx, that, in the opinion of such firm, the
Exchange Ratio is fair, from a financial point of view, to the
shareholders of the Company, which opinion shall be affirmed and
reissued in writing by a letter, dated not more than five (5)
Business Days prior to the date of the Proxy Statement.
Section 7.12 Qualification for Pooling-of-Interests
Treatment.
(a) The Company shall have received from the Company's
Accountants a letter, dated the Closing Date, affirming the
accuracy of their Pooling Letter.
(b) The Company shall have received an opinion from
Gold Banc's Accountants that the transactions contemplated
hereby will qualify for pooling-of-interests 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.
ARTICLE VIII
CONDITIONS PRECEDENT TO OBLIGATIONS
OF GOLD BANC AND ACQUISITION SUBSIDIARY
The obligations of Gold Banc and Acquisition Subsidiary 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 or
Acquisition Subsidiary 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 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 each Subsidiary shall have performed all agreements and
covenants required by this Agreement to be performed by it on or
prior to the Closing Date. Gold Banc shall have received a
certificate signed by the President and CFO 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 Subsidiaries.
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 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, (i) the Total Equity Capital
of the Company (determined on a consolidated basis) shall
not be less than $49,734,000 (ii) the reserve for loan and
lease losses of the Company (determined on a consolidated
basis) shall not be less than $5,454,000; and (iii) the
total indebtedness of the Company (determined on a
consolidated basis) shall not exceed $4,500,000.
(b) 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, Xxxxxxxxx
Bank, Elkhart Bank, COL and First State, respectively, and
shall not result in an increase of any consideration payable
by Gold Banc or Acquisition Subsidiary hereunder.
Section 8.6 Approval by Stockholders. The
stockholders 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 Certificate of
Incorporation and Bylaws of the Company and the Company
Subscription Agreements (to the extent required to terminate the
Subscription Agreements); and the stockholders 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 and of Acquisition Subsidiary and the rules of Nasdaq.
Section 8.7 Tax Representations. The Company and
each stockholder 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 8.9 hereof.
Section 8.8 Affiliate Agreements. 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 at the time this Agreement is submitted to approval of
the stockholders of the Company shall deliver to Gold Banc a
letter in substantially the form set forth in Exhibit B (the
"Affiliate Letter") hereto.
Section 8.9 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 8.10 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 8.11 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-interests 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 8.12 Deductibility of Severance Payments.
The Company shall have obtained and Gold Banc shall have received
from the Company's Accountants, a written (i) calculation of all
payments, if any, due to current or former employees of the
Company or any Subsidiary by reason of the Merger or upon the
occurrence of a change in control of the Company under their
respective Employment Agreements, deferred compensation plans or
otherwise, (ii) certification that such calculation was completed
in accordance with such agreements and plans, and (iii) opinion
that no such severance or other payments will constitute any non-deductible
"parachute payments" under Section 280G of the Code
(the "280G Opinion Letter").
Section 8.13 Other Acquisitions. At least thirty
(30) days prior to the Closing Date, the Company shall have
completed its acquisition of American Heritage; and the Company
shall have obtained the opinion of the Company's Accountants that
the Company's acquisition American Heritage do not prevent the
transactions contemplated hereby from qualifying for pooling-of-
interests treatment.
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
of 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. All
agreements and covenants of the parties of this Agreement, which
by their terms are to be performed following the Effective Time,
shall survive the Effective Time until performed in accordance
with their terms.
ARTICLE X
SECURITIES LAWS MATTERS
Section 10.1 Registration Statement and Proxy
Statement.
(a) Gold Banc shall, at Gold Banc's expense as soon as
practicable prepare and file a registration statement on
Form S-4, including the Proxy Statement, 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 (the "Registration Statement"). The
Company, Gold Banc and Acquisition Subsidiary 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 stockholders' meetings of the
Company, Acquisition Subsidiary and Gold Banc to be called
for the purpose of considering and voting on the Merger (the
"Proxy Statement"). The Company, Gold Banc and Acquisition
Subsidiary 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 any Subsidiary to
which the Company shall reasonably and timely object in
writing. The Registration Statement, at the time it is
declared effective, and the Proxy Statement, at the time it
is mailed to stockholders shall each comply as to form in
all material respects with the provisions of the Securities
Act and the Exchange Act, respectively. Gold Banc,
Acquisition Subsidiary 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 Gold Banc and the Company
shall distribute the Proxy Statement to their respective
stockholders in accordance with applicable laws not fewer
than twenty (20) Business Days prior to the date on which
this Agreement is to be submitted to their respective
stockholders 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 Gold Banc, Acquisition Subsidiary
and the Company shall mail or otherwise furnish to their
stockholders such amendments to the Proxy Statement or
supplements to the Proxy Statement as may, in the reasonable
opinion of Gold Banc, Acquisition Subsidiary 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 and Acquisition
Subsidiary shall not be required to maintain the
effectiveness of the Registration Statement after delivery
of the Gold Banc Common Stock issued pursuant hereto for the
purpose of resale of Gold Banc Common Stock by any Person.
(b) 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 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 thirty (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, unless the first
thirty (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
stockholders, 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, 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 the Company. The obligations under this Section 10.5 shall
survive the consummation of the Merger and are intended for the
benefit of, and may be enforced by, the parties named herein.
Section 10.6 Indemnification by the Company. The
Company agrees to indemnify and hold harmless Gold Banc and its
stockholders, 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 March 31, 2000; provided, however,
(i) the Company, at its sole discretion may extend from time
to time the date specified in this Section 11.1(b), which
extensions shall be evidenced by written notice from the
Company to Gold Banc and which extensions, in the aggregate,
shall not extend the time to close for a period of more than
sixty (60) days after March 31, 2000, and (ii) 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 upon written notice to the Company if
any regulatory approval of the transactions contemplated
under the terms of this Agreement shall be denied or 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 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, misrepresentation or 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 either party, if the stockholders of the
Company or the stockholders of Gold Banc fail to vote their
approval of this Agreement and the Merger contemplated
hereby as required under the OGCA and the KGCC at the
shareholder meetings held pursuant to Section 10.1 of this
Agreement;
(f) 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;
(g) by Gold Banc upon receipt of written notice from
the Company 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; or
(h) by Gold Banc, upon written notice to the Company,
if the Voting Agreement is not delivered and executed by the
Significant Shareholders on or before 11:59 a.m., Monday,
November 1, 1999.
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;
provided, in the event the Company elects to terminate this
Agreement pursuant to Section 11.1(d)(i) hereof by reason of the
failure of the condition specified in Section 7.9 of this
Agreement to be satisfied, such election must be duly approved by
the Company's Board of Directors and ratified by the holders of
not less than two-thirds of the then outstanding shares of
Company Common Stock.
Section 11.2 Effect of Termination. Except in the
event of a termination of this Agreement pursuant to Section
11.1(d) 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) 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 wilful breach or
misrepresentation. Sections 6.5, 10.5, 10.6, 11.2, 11.3, 12.3
and 12.7 shall survive termination of this Agreement.
Section 11.3 Termination Fee. The Company agrees to
pay to Gold Banc upon demand a termination fee of Two Million
Five Hundred Thousand Dollars ($2,500,000) (the "Termination
Fee") if this Agreement is terminated (i) by the Company pursuant
to Section 11.1(f) or (ii) by Gold Banc pursuant to Section
11.1(g). In the event of a termination of this Agreement
pursuant to Section 11.1(f) or 11.1(g) of this Agreement, the
payment provided under this Section 11.3 shall be the sole and
exclusive remedy available to Gold Banc.
Section 11.4 Notice of Termination. Each party may
exercise its right of termination of this Agreement only by
delivering written notice to that effect to the other party
hereto, provided that such notice is received by the latter party
on or prior to the Closing Date.
Section 11.5 Specific Performance.
(a) Subject to Section 11.1, in the event Gold Banc
and Acquisition Subsidiary 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 either or both of Gold Banc
and Acquisition Subsidiary 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
or Acquisition Subsidiary from also pursuing an Action to
recover any and all damages resulting from the Company's
wrongful refusal to close. All remedies available to Gold
Banc or Acquisition Subsidiary hereunder or by law are
cumulative
(b) In the event the Company has performed all of its
obligations hereunder and all conditions precedent to the
obligations of Gold Banc and Acquisition Subsidiary to close
have been met or waived in writing by Gold Banc and
Acquisition Subsidiary, but Gold Banc and Acquisition
Subsidiary 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 thewrongful refusal to close. All remedies available to
the Company hereunder or by law are cumulative.
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 stockholders of Company, Gold Banc or Acquisition
Subsidiary, but, after any such approval, no amendment shall be
made which by law requires further approval by such stockholders
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 on the part of 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 and accounting 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.
Section 12.5 Entire Agreement; Amendments; Waiver.
This Agreement contains the entire understanding of Gold Banc,
Acquisition Subsidiary 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:
Xxx X. XxXxxxx
0000 X.X. 00xx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Telephone: (000)000-0000
FAX: (000)000-0000
with a copy to:
C. Xxxxx Xxxx
McAfee & Xxxx
00xx Xxxxx Xxx Xxxxxxxxxx Xxxxxx
000 Xxxxx Xxxxxxxx
Xxxxxxxx Xxxx, Xxxxxxxx 00000-0000
Telephone: (000)000-0000
FAX: (000)000-0000
If to Gold Banc:
Xxxxxxx X. Xxxxxxx
Gold Banc Corporation, Inc.
00000 Xxxx Xxxxxx
Xxxxxxx, XX 00000
Telephone: (000) 000-0000
FAX: (000) 000-0000
with a copy to:
C. Xxxxxx Xxxxxx
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, except to the extent that Oklahoma
corporate law applies to the provisions hereof relating to the
Merger.
Section 12.8 Counterparts. This Agreement may be
executed in any number of counterparts, each of which shall be
deemed to be an original and all of which together shall
constitute one agreement which is binding upon all the parties
hereto, notwithstanding that all parties are not signatories to
the same counterpart. This Agreement may be executed by
facsimile signatures which shall be deemed to have the same force
and effect as an original signature.
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. Xxxxxxx
Title: President and Chief
Executive Officer
ATTEST:
__________________________
Name: Xxxxx X. Xxxxxxx
Title: Secretary
GOLD BANC ACQUISITION CORPORATION
XII, INC.
By: _____________________________
Name: Xxxxxxx X. Xxxxxxx
Title: President
ATTEST:
___________________________
Name: Xxxxx X. Xxxxxxx
Title: Secretary
COUNTRYBANC HOLDING COMPANY
By: ______________________________
Name: Xxx X. XxXxxxx
Title: Chairman of the Board
ATTEST:
__________________________
Name: Xxxxx Xxxxxxxx
Title: Secretary
STATE OF ________________ )
) ss.
COUNTY OF _______________ )
ON THIS 22nd day of October, 1999, before me the
undersigned, a Notary Public in and for the County and the
aforesaid, came Xxxxxxx X. Xxxxxxx, President and Chief Executive
Officer 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 22nd day of October, 1999, before me the
undersigned, a Notary Public in and for the County and state
aforesaid, came Xxxxxxx X. Xxxxxxx, President of Gold Banc
Acquisition Corporation XII, 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 OKLAHOMA )
) ss.
COUNTY OF OKLAHOMA )
ON THIS 22nd day of October, 1999, before me the
undersigned, a Notary Public in and for the County and state
aforesaid, came Xxx X. XxXxxxx, President of CountryBanc Holding
Company, an Oklahoma corporation, and Xxxxx 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.
GOLD BANC ACQUISITION CORPORATION XII, INC.
and
COUNTRYBANC HOLDING COMPANY
October 22, 1999
_____________________________________________________________________
_____________________________________________________________________
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS. . . . . . . . . . . . . . . . . . . . . .1
Section 1.1 Defined Terms . . . . . . . . . . . . .1
Section 1.2 Construction. . . . . . . . . . . . . .9
ARTICLE II
THE COMPANY MERGER . . . . . . . . . . . . . . . . . .9
Section 2.1 The Merger. . . . . . . . . . . . . . .9
Section 2.2 Effective Time of the Company Merger. .9
Section 2.3 Articles of Incorporation, Bylaws,
Directors and Officers. . . . . . . 10
Section 2.4 Effect of Company Merger. . . . . . . 10
Section 2.5 Further Assurances. . . . . . . . . . 10
Section 2.6 Conversion of Acquisition Subsidiary
Common Stock. . . . . . . . . . . . . 10
Section 2.7 Effect of Merger on Company Common
Stock . . . . . . . . . . . . . . . . 11
Section 2.8 Dissenting Shares . . . . . . . . . . 11
Section 2.9 Exchange of Certificates. . . . . . . 11
Section 2.10 Closing of the Company Transfer Books 12
Section 2.11 Dividends . . . . . . . . . . . . . . 13
Section 2.12 Stockholders' Approval. . . . . . . . 13
Section 2.13 Adjustments . . . . . . . . . . . . . 13
Section 2.14 Voting Agreement. . . . . . . . . . . 14
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY. . . . 14
Section 3.1 Organization and Good Standing. . . . 14
Section 3.2 Capital Structure . . . . . . . . . . 15
Section 3.3 Authority . . . . . . . . . . . . . . 17
Section 3.4 Stockholder Approval. . . . . . . . . 18
Section 3.5 No Violations . . . . . . . . . . . . 18
Section 3.6 Financial Statements. . . . . . . . . 19
Section 3.7 Information Supplied. . . . . . . . . 19
Section 3.8 Internal Controls and Records . . . . 20
Section 3.9 Taxes . . . . . . . . . . . . . . . . 20
Section 3.10 Title to Assets . . . . . . . . . . . 20
Section 3.11 Leases. . . . . . . . . . . . . . . . 21
Section 3.12 Intangible Properties . . . . . . . . 21
Section 3.13 Regulatory Filings. . . . . . . . . . 22
Section 3.14 Insurance . . . . . . . . . . . . . . 22
Section 3.15 Compliance with ERISA . . . . . . . . 23
Section 3.16 Environmental Laws. . . . . . . . . . 23
Section 3.17 Labor Matters . . . . . . . . . . . . 24
Section 3.18 Year 2000 Compliance. . . . . . . . . 25
Section 3.19 Legal Proceedings . . . . . . . . . . 25
Section 3.20 Contracts . . . . . . . . . . . . . . 25
Section 3.21 Required Consents . . . . . . . . . . 26
Section 3.22 Broker's Fees . . . . . . . . . . . . 26
Section 3.23 No Material Adverse Change. . . . . . 26
Section 3.24 Loans . . . . . . . . . . . . . . . . 26
Section 3.25 Opinion of Financial Adviser. . . . . 27
Section 3.26 Accounting Matters. . . . . . . . . . 27
Section 3.27 Beneficial Ownership of Gold Banc
Common Stock. . . . . . . . . . . . . 27
Section 3.28 Deductibility of Severance Payments.. 27
Section 3.29 Stay Bonuses and Employment
Agreements. . . . . . . . . . . . . . 27
Section 3.30 Accruals. . . . . . . . . . . . . . . 27
Section 3.31 Undisclosed Liabilities; Adverse
Agreements. . . . . . . . . . . . . . 27
Section 3.32 Absence of Certain Events . . . . . . 28
Section 3.33 Disclosure. . . . . . . . . . . . . . 28
ARTICLE IVREPRESENTATIONS AND WARRANTIES OF GOLD BANC. . . . . 29
Section 4.1 Corporate . . . . . . . . . . . . . . 29
Section 4.2 Capital Structure . . . . . . . . . . 30
Section 4.3 Authority . . . . . . . . . . . . . . 30
Section 4.4 Stockholder Approval. . . . . . . . . 31
Section 4.5 Status of Gold Banc Common Stock to be
Issued. . . . . . . . . . . . . . . . 32
Section 4.6 No Violation. . . . . . . . . . . . . 32
Section 4.7 SEC Documents . . . . . . . . . . . . 33
Section 4.8 Information Supplied. . . . . . . . . 33
Section 4.9 Internal Controls and Records . . . . 33
Section 4.10 Taxes . . . . . . . . . . . . . . . . 34
Section 4.11 Regulatory Filings. . . . . . . . . . 34
Section 4.12 Compliance with ERISA . . . . . . . . 34
Section 4.13 Environmental Laws. . . . . . . . . . 35
Section 4.14 Year 2000 Compliance. . . . . . . . . 35
Section 4.15 Legal Proceedings . . . . . . . . . . 35
Section 4.16 Required Consents . . . . . . . . . . 35
Section 4.17 Conduct . . . . . . . . . . . . . . . 36
Section 4.18 Undisclosed Liabilities; Adverse
Agreements. . . . . . . . . . . . . . 36
Section 4.19 Material Contracts. . . . . . . . . . 36
Section 4.20 Broker's Fees . . . . . . . . . . . . 36
Section 4.21 No Material Adverse Change. . . . . . 36
Section 4.22 Disclosure. . . . . . . . . . . . . . 36
ARTICLE V
COVENANTS OF THE COMPANY . . . . . . . . . . . . . . 37
Section 5.1 Affirmative Covenants of the Company. 37
Section 5.2 Negative Covenants of the Company . . 37
Section 5.3 Inspection. . . . . . . . . . . . . . 40
Section 5.4 Financial Statements and Call Reports 40
Section 5.5 Right to Attend Meetings. . . . . . . 40
Section 5.6 Data Processing . . . . . . . . . . . 41
Section 5.7 No Solicitation . . . . . . . . . . . 41
Section 5.8 Regulatory Approvals. . . . . . . . . 42
Section 5.9 Information . . . . . . . . . . . . . 42
Section 5.10 Tax-Free Reorganization Treatment.. . 42
Section 5.11 Pooling-of-Interests Accounting
Treatment . . . . . . . . . . . . . . 42
Section 5.12 Cooperation by the Company. . . . . . 42
Section 5.13 Year 2000 Compliance. . . . . . . . . 42
Section 5.14 Proxy Statement and Registration
Statement . . . . . . . . . . . . . . 43
Section 5.15 Confidentiality . . . . . . . . . . . 43
Section 5.16 Employee Benefit Plans. . . . . . . . 43
Section 5.17 Deductibility of Severance Payments.. 44
Section 5.18 Achievement of Financial Measures.. . 44
Section 5.19 Company's Accounting of Merger
Expenses . . . . . . . . . . . . . . .44
Section 5.20 Company's Acquisition of American
Heritage . . . . . . . . . . . . . . .44
Section 5.21 Supplemental Information. . . . . . . 45
ARTICLE VI
COVENANTS OF GOLD BANC AND ACQUISITION SUBSIDIARY. . 45
Section 6.1 Regulatory Approvals. . . . . . . . . 45
Section 6.2 Information . . . . . . . . . . . . . 45
Section 6.3 Tax-Free Reorganization Treatment . . 45
Section 6.4 Employee Benefit Plans; Prior Service
Credit. . . . . . . . . . . . . . . . 45
Section 6.5 Confidentiality.. . . . . . . . . . . 46
Section 6.6 Pooling-of-Interests Accounting
Treatment . . . . . . . . . . . . . . 46
Section 6.7 Cooperation by Gold Banc and
Acquisition Subsidiary. . . . . . . . 46
Section 6.8 Year 2000 Compliance. . . . . . . . . 46
Section 6.9 Ordinary Course . . . . . . . . . . . 46
Section 6.10 Inspection. . . . . . . . . . . . . . 47
Section 6.11 Indemnification of Directors and
Insurance . . . . . . . . . . . . . . 47
Section 6.12 Supplemental Information. . . . . . . 48
Section 6.13 Tax Returns . . . . . . . . . . . . . 48
ARTICLE VII
CONDITIONS PRECEDENT TO OBLIGATIONSOF THE COMPANY. . 48
Section 7.1 Representations, Warranties and
Covenants . . . . . . . . . . . . . . 48
Section 7.2 Regulatory Authority Approval . . . . 49
Section 7.3 Litigation. . . . . . . . . . . . . . 49
Section 7.4 Approval by Stockholders. . . . . . . 49
Section 7.5 Adverse Changes . . . . . . . . . . . 49
Section 7.6 Federal Tax Opinion . . . . . . . . . 49
Section 7.7 Opinion of Counsel. . . . . . . . . . 49
Section 7.8 Registration Statement. . . . . . . . 49
Section 7.9 Market Price of Gold Banc Common
Stock . . . . . . . . . . . . . . . . 50
Section 7.10 Nasdaq Listing. . . . . . . . . . . . 50
Section 7.11 Fairness Opinion. . . . . . . . . . . 50
Section 7.12 Qualification for Pooling-of-Interests
Treatment . . . . . . . . . . . . . . 50
ARTICLE VIII
CONDITIONS PRECEDENT TO OBLIGATIONS
OF GOLD BANC AND ACQUISITION SUBSIDIARY. . . . . . . 50
Section 8.1 Representations, Warranties and
Covenants . . . . . . . . . . . . . . 50
Section 8.2 Adverse Changes . . . . . . . . . . . 51
Section 8.3 Regulatory Authority Approval . . . . 51
Section 8.4 Litigation. . . . . . . . . . . . . . 51
Section 8.5 Financial Measures. . . . . . . . . . 51
Section 8.6 Approval by Stockholders. . . . . . . 51
Section 8.7 Tax Representations . . . . . . . . . 51
Section 8.8 Affiliate Agreements. . . . . . . . . 52
Section 8.9 Federal Tax Opinion . . . . . . . . . 52
Section 8.10 Opinion of Counsel. . . . . . . . . . 52
Section 8.11 Qualification for Pooling-of-Interests
Treatment . . . . . . . . . . . . . . 52
Section 8.12 Deductibility of Severance Payments . 52
Section 8.13 Other Acquisitions. . . . . . . . . . 52
ARTICLE IX
NON-SURVIVAL OF REPRESENTATIONS AND WARRANTIES . . . 53
Section 9.1 No Survival of Representations and
Warranties. . . . . . . . . . . . . . 53
ARTICLE X
SECURITIES LAWS MATTERS. . . . . . . . . . . . . . . 53
Section 10.1 Registration Statement and Proxy
Statement . . . . . . . . . . . . . . 53
Section 10.2 State Securities Laws . . . . . . . . 54
Section 10.3 Publication of Combined Financial
Results . . . . . . . . . . . . . . . 54
Section 10.4 Affiliates. . . . . . . . . . . . . . 54
Section 10.5 Indemnification by Gold Banc. . . . . 55
Section 10.6 Indemnification by the Company. . . . 55
ARTICLE XI
TERMINATION. . . . . . . . . . . . . . . . . . . . . 55
Section 11.1 Basis for Termination . . . . . . . . 55
Section 11.2 Effect of Termination . . . . . . . . 57
Section 11.3 Termination Fee . . . . . . . . . . . 57
Section 11.4 Notice of Termination . . . . . . . . 57
Section 11.5 Specific Performance. . . . . . . . . 57
ARTICLE XII
MISCELLANEOUS . . . . . . . . . . . . . . . . . . . 58
Section 12.1 Amendment . . . . . . . . . . . . . . 58
Section 12.2 Extension: Waiver . . . . . . . . . . 58
Section 12.3 Expenses. . . . . . . . . . . . . . . 58
Section 12.4 Parties in Interest . . . . . . . . . 58
Section 12.5 Entire Agreement; Amendments; Waiver. 58
Section 12.6 Notices . . . . . . . . . . . . . . . 59
Section 12.7 Law Governing . . . . . . . . . . . . 60
EXHIBIT A Voting Agreement
EXHIBIT B Form of Affiliate Letter
