EXHIBIT 2.15
FIRST AMENDMENT TO
AGREEMENT AND PLAN OF MERGER
THIS FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER is dated as of the
9th day of March, 1998 and made and entered into by and among COMMUNITY FIRST
BANKSHARES, INC., a Delaware corporation ("CFBI"), and COMMUNITY BANCORP, INC.,
a Colorado corporation ("Company").
WHEREAS, the parties hereto are parties to an Agreement and Plan of
Merger dated as of January 8, 1998 (the "Merger Agreement"); and
WHEREAS, the parties desire to make certain changes to the Merger
Agreement, as hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing and intending to be
legally bound hereby, the parties hereto agree as follows:
1. DETERMINATION DATE. Notwithstanding anything to the contrary in
the Merger Agreement, in the event the Closing Date is within the first ten
days of a month, the Determination Date will be the end of the month next
preceding the Closing Date. For example, assuming a Closing Date of April 3,
1998, the Determination Date would be February 28, 1998.
2. DETERMINATION OF COMPANY VALUE. Notwithstanding anything to the
contrary in the Merger Agreement, the Average Daily Interim Income will be
calculated in accordance with Section 1.4 of the Merger Agreement, by
dividing Interim Income by the number of days from, and including, July 1,
1997 to the Determination Date. The portion of Company Value under
Section 1.4(ii) of the Merger Agreement, shall be determined by multiplying
Average Daily Interim Income by the number of days from the Determination to
the Date prior to the Closing Date (excluding the Determination Date), and
then multiplying that product by 3.9139. Thus, in the above example, Interim
Income for the period from, and including, July 1, 1997 to February 28, 1998
would be divided by 243 (the number of days from, and including, July 1, 1997
to, and including, February 28, 1998), then multiplied by 33 (the number of
days from, and including, March 1, 1998 to, and including, April 2, 1998),
and then multiplied by 3.9139.
3. ROUNDING. All calculations throughout this process shall be
rounded to four places to the right of the decimal point.
4. AMENDMENT TO SECTION 3.1(B). The first sentence of Section 3.1(b)
of the Merger Agreement is amended to state as follows:
The Company is a corporation duly organized, validly existing and in
good standing under the laws of the State of Colorado, with authorized
capital stock consisting of 200,000 shares of common stock, $10.00 par
value per share, of which 70,134 shares are issued and outstanding.
5. AMENDMENT TO SECTION 5.7. Section 5.7 of the Merger Agreement is
restated in its entirety as follows:
5.7 INSURANCE, INDEMNITY.
(a) From and after the Effective Time, CFBI shall indemnify,
defend and hold harmless to the fullest extent that the Company or the
Bank, as the case may be, would have been permitted under applicable
law each person who is now, or has been at any time prior to the date
hereof, an officer or director of the Company or the Bank
(individually, an "Indemnified Party" and collectively, the
"Indemnified Parties"), against all losses, claims, damages,
liabilities, costs or expenses (including attorneys' fees), judgments,
fines, penalties and amounts paid in settlement in connection with any
claim, action, suit, proceeding or investigation arising out of or
pertaining to acts or omissions, or alleged acts or omissions, by them
in their capacities as such occurring at or prior to the Effective
Time. In the event of any such claim, action, suit, proceeding or
investigation (an "Action"), (i) any Indemnified Party wishing to
claim indemnification shall promptly notify CFBI thereof, (ii) CFBI
shall pay the reasonable fees and expenses of counsel selected by the
Indemnified Party, which counsel shall be reasonably acceptable to
CFBI, in advance of the final dispositon of any such Action to the
full extent permitted by applicable law, upon receipt of any
undertaking required by applicable law, and (iii) CFBI will cooperate
in the defense of any such matter; provided, however, that CFBI shall
not be liable for any settlement effected without its written consent
and provided, further, that CFBI shall not be obligated pursuant to
this Section to pay the fees and disbursements of more than one
counsel for all Indemnified Parties in any single Action except to the
extent that, in the opinion of counsel for the Indemnified Parties,
under applicable standards of professional conduct, there is a
conflict in any one significant issue between the positions of two or
more of such Indemnified Parties.
(b) For a period of four years after the Effective Time, CFBI
shall cause to be maintained officers' and directors' liability
insurance covering the Indemnified Parties who are currently covered,
in their
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capacities as officers and directors, by the Bank's and
Company's existing officers' and directors' liability insurance
policies on terms substantially no less advantageous to the
Indemnified Parties than such existing insurance; provided, however,
that CFBI shall not be required in order to maintain or procure such
coverage to pay an annual premium in excess of one and one-half times
the current annual premium paid by the Company for its existing
coverage (the "Cap"); and provided, further, that if equivalent
coverage cannot be obtained, or can be obtained by paying an annual
premium in excess of the Cap, CFBI shall only be required to obtain as
much coverage as can be obtained by paying an annual premium equal to
the Cap; and provided, further, however, that such directors and
officers may be required to make application and provide customary
representations and warranties to CFBI's insurance carrier for the
purpose of obtaining such coverage.
6. COUNTERPARTS. This Agreement may be executed in counterparts, all
of which shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each of the parties and
delivered to the other parties, it being understood that all parties need not
sign the same counterpart.
Except as hereinabove set forth, there are no other changes to the
Merger Agreement, and the same is expressly ratified and confirmed.
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IN WITNESS WHEREOF, CFBI, and Company have caused this Amendment to be
signed by their respective officers thereunto duly authorized as of the date
first above written.
COMMUNITY FIRST BANKSHARES, INC.
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Senior Vice President - Acquisitions
COMMUNITY BANCORP, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: President
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