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EXHIBIT 10.16
ACQUISITION AGREEMENT AND PLAN OF MERGER
THIS ACQUISITION AGREEMENT AND PLAN OF MERGER (hereinafter referred to
as "Merger Agreement"), is entered into this 30th day of April , 2001, by and
among TEAM FINANCIAL, INC., a Kansas corporation ("TFIN"), TEAM FINANCIAL
ACQUISITION SUBSIDIARY, INC., a Kansas corporation ("TAC"), and POST BANCORP,
INC., a Colorado corporation, ("PBI"); and
RECITALS
WHEREAS, TFIN is a corporation duly organized and existing under the
laws of the State of Kansas; and
WHEREAS, TAC is a corporation duly organized and existing under the
laws of the State of Kansas; and
WHEREAS, PBI is a corporation duly organized and existing under the
laws of the State of Colorado; and
WHEREAS, PBI is a bank holding company. Colorado Springs National Bank,
Colorado Springs, Colorado (hereinafter referred to as "BANK") is a wholly-owned
subsidiary of PBI; and
WHEREAS, TAC is a financial holding company which is wholly-owned by
TFIN and organized for business purposes including the facilitation of the
acquisition of PBI by TFIN through a merger of PBI into TAC; and
WHEREAS, the Boards of Directors of TFIN, TAC and PBI have determined
that it is advisable for the general welfare and best interest of said
corporations and their respective stockholders that TAC and PBI merge as
provided for in this merger agreement and in accordance with the applicable
provisions of the laws of the State of Kansas and Colorado; and
WHEREAS, The respective Boards of Directors of TAC and PBI have, by
resolutions, approved and authorized the execution and delivery of the Merger
Agreement on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and promises
herein and subject to the satisfaction of the terms and conditions set forth
herein, and intending to be legally bound hereby; TFIN, TAC and PBI agree as
follows:
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ARTICLE I
THE MERGER PLAN
SECTION 1.1 Plan of Merger. Subject to the terms and conditions of this
Merger Agreement, including the requisite governmental and stockholder
approvals; at the Effective Time as defined in Section 1.2, the acquisition of
PBI by TAC will be carried out in the following manner:
a. TAC and PBI will each cooperate in the preparation of such
applications, statements or materials as may be required to be furnished to the
stockholders of PBI or filed or submitted to appropriate governmental agencies
in connection with the merger and with the solicitation of the approval by the
stockholders of PBI in respect thereof and TFIN, the sole stockholder of TAC
agrees to vote all of its shares of capital stock of TAC in favor of the Merger
Agreement.
b. At the Effective Time as defined in Section 1.2, PBI shall merge
with and into TAC. As a result of the merger at the Effective Time, the
outstanding shares of the capital stock of PBI shall be surrendered and canceled
as provided herein and the separate existence of PBI shall cease. TAC shall
continue as the surviving corporation and shall continue to be governed by the
Laws of the State of Kansas and shall be properly authorized to do business in
the State of Kansas and the State of Colorado and comply with all applicable
banking laws and regulations. (TAC, in its capacity as the corporation surviving
the merger, is sometimes hereinafter referred to as the "Surviving Corporation")
After the merger, TFIN will continue to hold one-hundred percent (100%) of TAC
capital stock and TAC will own one-hundred percent (100%) of the assets of PBI,
including one-hundred percent (100%) of the outstanding capital stock of BANK.
As a result of the merger, stockholders of PBI shall be entitled to receive cash
or TFIN common stock or a combination thereof as provided for herein.
SECTION 1.2 Effective Time. The consummation of the merger, the
delivery of the certificates and other documents called for by this Merger
Agreement, and the consummation of all other transactions contemplated by this
Merger Agreement shall take place at the offices of TFIN at Two West Peoria,
Paola, Kansas, on a date that shall not be later than forty-five (45) days
following the later of the receipt of the final regulatory approval of the Board
of Governors of the Federal Reserve System and the Division of Banking of the
State of Colorado, if any shall be required, and the office of the Comptroller
of the Currency, if any shall be required, including the expiration of any
applicable waiting period(s) required to effect the merger. The Effective Time
may be extended from time to time by mutual written agreement of the parties.
The parties agree that they shall exert their reasonable best efforts to cause
the Effective Time to be on or before September 30, 2001.
SECTION 1.3 Surviving Corporation, Articles of Incorporation and
Bylaws. At the Effective Time, PBI shall cease to exist and TAC will be the
Surviving Corporation. The Articles of Incorporation and Bylaws of TAC in effect
immediately prior to the Effective Date shall continue in full force and effect
until otherwise amended or repealed.
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SECTION 1.4 Filing of Certificate of Merger. The merger shall be
documented by the filing of a Certificate of Merger at Xxx Xxxx Xxxxxx, Xxxxx,
Xxxxxx 00000; by filing said Certificate with the Secretary of State of Kansas
pursuant to K.S.A. 17-6701(c) and by the filings required by the laws of the
State of Colorado to document said merger .
SECTION 1.5 Officers and Directors. The directors and officers of TAC
in office immediately prior to the Effective Time, together with such additional
persons as may thereafter be elected, shall serve as the directors and officers
of the Surviving Corporation from and after the Effective Time in accordance
with the Bylaws of the Surviving Corporation then existing or as amended and
restated as of the Effective Time and said directors and officers shall continue
to serve as the directors and officers of the Surviving Corporation until the
next annual meeting or until such time as their successors have been elected and
have qualified.
SECTION 1.6 Effect of Merger. At the Effective Time of the merger, the
Surviving Corporation shall succeed to, without other transfer, and shall
possess and enjoy, all the rights, privileges, immunities, powers and
franchises, both of a public and a private nature, and be subject to all the
restrictions, disabilities and duties of TAC and PBI. All property, real,
personal and mixed, and all debts due to either TAC or PBI on whatever account,
for stock as well as for all other things in action or belonging to TAC and PBI,
shall be vested in the Surviving Corporation, and all and every other interest
shall be thereafter as effectually the property of the Surviving Corporation, as
they were of TAC and PBI, and the title to any real estate vested by deed or
otherwise in either TAC or PBI shall not revert or be in any way impaired by
reason of the merger; provided, however, that all rights of creditors and all
liens upon any property of either TAC or PBI shall be preserved unimpaired,
limited in lien to the property affected by such liens at the Effective Time of
the merger, and all debts, liabilities and duties of said TAC and PBI,
respectively shall thenceforth attach to the Surviving Corporation and may be
enforced against it to the same extent as if said debts, liabilities and duties
has been incurred or contracted by the Surviving Corporation. Any existing
claim, action or proceeding, whether civil, criminal or administrative by or
against either TAC or PBI may be prosecuted to judgment or decree as if this
merger had not taken place, or TAC, as the Surviving Corporation, may be
substituted in such action or proceeding.
SECTION 1.7 Further Assurances. If at any time after the Effective
Time, TAC shall consider it advisable that any further conveyances, agreements,
documents, instruments or assurances of law or any other actions or things are
necessary or desirable to vest, perfect, confirm, or record in TAC the title to
any property or rights, privileges, powers, or franchises of PBI or BANK, the
former Board of Directors and officers of PBI, shall and will be authorized to,
execute and deliver in the name on behalf of PBI 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 TAC, and otherwise to
carry out the provisions of this Merger Agreement.
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SECTION 1.8 Governing Law. The laws which are to govern this Merger
Agreement and the Surviving Corporation are the laws of the State of Kansas.
ARTICLE II
STATUS AND CONVERSION OF SHARES
The mode of carrying into effect the merger provided in this Merger
Agreement, and the manner and basis of converting the shares of PBI stock to
shares of TFIN stock are as follows:
At the Effective Time by virtue of the merger and without any action on
the part of the holders thereof:
SECTION 2.1 TFIN's Common Stock. None of the shares of common stock,
par value .00 per share of TFIN, issued at the Effective Time of the merger,
hereinafter referred to as "TFIN Common Stock," shall be converted as a result
of the merger, but all of such shares shall remain issued shares of TFIN.
SECTION 2.2 PBI's Common Stock. TFIN shall appoint an Exchange Agent
("Exchange Agent") to accept surrender of the certificates representing shares
of PBI Common Stock and to deliver, in exchange for such surrendered
certificates, the consideration provided for herein in the form of the shares of
TFIN Common Stock or cash represented by such certificates.
a. At and after the Effective Time, each holder of a
certificate or certificates representing shares of PBI Common Stock, upon
presentation and surrender of such certificate or certificates to the Exchange
Agent, shall be entitled to receive the consideration provided for herein from
the Exchange Agent or TFIN, except that holders of those shares as to which
dissenters' rights shall have been asserted and perfected pursuant to the
Colorado Business Corporation Act ("CBCA") shall not receive the consideration
provided for herein but shall have the right to receive such consideration as
may be due such holders under the CBCA. Upon such presentation, surrender, and
exchange, as provided in this Section, certificates representing shares of PBI
Common Stock previously held shall be delivered to TFIN. Until so presented and
surrendered, each certificate or certificates which represent issued and
outstanding shares of PBI Common Stock at the Effective Time shall be deemed for
all purposes to evidence the right to receive the consideration as determined in
accordance with Section 2.3 of the Merger Agreement. If certificates
representing shares of PBI Common Stock have been lost, stolen, mutilated, or
destroyed, the Exchange Agent shall require the submission of a bond in lieu of
such certificate. At the Effective Time, the Stock Transfer Books of PBI shall
be closed and no transfer of PBI Common Stock shall thereafter be made, except
to TFIN as provided for herein.
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b. No dividends or other distributions that are declared after
the Effective Time with respect to TFIN Common Stock payable to the holders of
record thereof after the Effective Time shall be paid to PBI stockholders
entitled to receive certificates representing TFIN Common Stock until such
stockholders surrender to the Exchange Agent their certificates representing PBI
Common Stock. Upon such surrender, there shall be paid to the stockholder in
whose name the certificates representing such TFIN Common Stock shall be issued
any dividends which shall have become payable with respect to such TFIN Common
Stock between the date of the Effective Time and the time of such surrender,
without interest.
c. The Exchange Agent's authorization may be terminated by
TFIN at any time after six months following the Effective Time. Upon termination
of such authorization, any shares of TFIN Common Stock and funds held by the
Exchange Agent for payment to PBI stockholders pursuant to this Agreement shall
be transferred to TFIN or its designee which shall thereafter perform the
obligations of the Exchange Agent. If outstanding certificates for shares of PBI
Common Stock are not surrendered or the payment for them not claimed prior to
such date on which such payments would otherwise escheat to or become the
property of any governmental unit or agency, the unclaimed items shall, to the
extent permitted by abandoned property and any other applicable law, become the
property of TFIN (and to the extent not in its possession shall be paid over to
it), free and clear of all claims or interest of any person previously entitled
to such items. Notwithstanding the foregoing, neither the Exchange Agent nor any
party to this Merger Agreement shall be liable to any holder of PBI Common Stock
for any amount paid to any governmental unit or agency having jurisdiction of
such unclaimed items pursuant to the abandoned property or other applicable law
of such jurisdiction.
d. The certificates evidencing the TFIN shares will bear a
legend substantially as follows:
"The shares represented by this Certificate have not been registered
under the Securities Act of 1933 (the "Act") and are "restricted
securities" as that term is defined in Rule 144 under the Act. The
shares may not be offered for sale, sold or otherwise transferred
except pursuant to an effective registration statement under the Act or
pursuant to an exemption from registration under the Act, the
availability of which is to be established to the satisfaction of the
Company."
e. PBI understands that the offer and sale of the TFIN Common
Stock to be issued pursuant to the Merger has not been registered under the
Securities Act of 1933 or any state securities law and as a condition to the
issuance of shares of TFIN to each stockholder of PBI that receives shares of
TFIN Common Stock in the merger, that each such stockholder represents and
warrants that he or she is acquiring such securities for his or her own account
for investment and not with a view to the resale or other distribution thereof
and acknowledges that such securities may not be resold or transferred unless
they have been effectively registered under the Securities Act of 1933 and any
applicable state securities laws or TFIN has received an opinion of counsel
reasonably satisfactory to it to the effect that any such proposed resale or
transfer is exempt from the registration requirements of the Securities Act of
1933 and any applicable state
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securities laws. At the time of closing, each such stockholder must also
acknowledge that he or she is familiar with the provisions applicable to the
resale of "restricted securities" within the meaning and the limitations of Rule
144 adopted by the Securities and Exchange Commission under the Securities Act
of 1933.
f. Incidental Registration. For a period of time within two
(2) years of the Effective Time, each time that TFIN shall determine by
resolution of the Board of Directors to proceed with the actual preparation and
filing of a registration statement under the Securities Act of 1933 (the
"Securities Act") in connection with the proposed offer and sale for cash of its
Common Stock by it (other than a registration statement on a form that does not
permit the inclusion of shares by its security holders), TFIN will deliver
notice of its determination to all holders of TFIN common stock issued in
exchange for PBI common stock (pursuant to the Merger Agreement not theretofore
registered under the Commission and sold no later than thirty (30) days prior to
the filing of a registration statement with the Commission (hereinafter
"registrable securities"). Upon the written request of a holder of any such
registrable securities delivered to TFIN within ten (10 )days after receipt of
any such notice, TFIN will, except as herein provided, cause all such shares of
registrable securities, the holders of which have so requested registration
thereof, to be included in such registration statement at no expense to the
holders of such shares of registrable securities, all to the extent requisite to
permit the sale or other disposition by the prospective seller or sellers of the
registrable securities to be so registered; provided, however, that nothing
herein shall prevent TFIN from, at any time, abandoning or delaying any
registration. If, in the good faith judgment of the managing underwriter of such
public offering, the inclusion of all of the registrable securities covered by a
request for registration would reduce the number of shares to be offered by TFIN
or interfere with the successful marketing of the shares of stock offered by
TFIN, the number of registrable securities otherwise to be included in the
underwritten public offering may be reduced in whole or in part pro rata (by
number of securities) among the holders thereof requesting such registration.
Holders requesting inclusion in the registration will also be subject to the
requirement that, to the extent requested by the underwriters, such holders
shall enter into any "lock-up" provisions or other similar agreements relating
to limiting the sale of TFIN common stock with respect to any shares not being
registered; provided that such "lock-up" period does not exceed 180 days. With
respect to any registration hereunder, TFIN shall bear the customary and
ordinary expenses of registration. However, selling holders of registerable
securities shall bear on a pro-rata basis any underwriting discounts and
commissions, transfer taxes and professional fees for services to the selling
holders.
SECTION 2.3 Distribution to Stockholders.
Each PBI stockholder will be required to designate, at the time he or
she votes for or against the proposed merger, the method of exchange of shares
of PBI Common Stock to be exchanged for cash and/or TFIN Common Stock.
Immediately prior to the Effective
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Time, the capital of BANK shall be SIX MILLION TWO HUNDRED THOUSAND DOLLARS
($6,200,000) including any unrealized gain and/or loss on securities.
Immediately prior to the Effective Time the reserves required in Section 5.12
shall be as specified therein. The purchase price shall then be paid by TFIN so
that the aggregate purchase price paid for shares of PBI Common Stock shall
consist of TFIN Common Stock which will have a value of TWO MILLION DOLLARS
($2,000,000) and the remainder of the purchase price to be paid in cash in the
amount of ELEVEN MILLION DOLLARS ($11,000,000). The number of shares of TFIN
Common Stock to be delivered under this section shall be determined by dividing
the $2,000,000 by the average closing price of TFIN stock as quoted on the
NASDAQ for the 45 market days prior to the Effective Time regardless of whether
or not any shares of TFIN traded on a particular trading day. If the average
price so determined is less than Six Dollars ($6.00) per share then the average
price shall be Six Dollars ($6.00) per share. If the average price so determined
is more than Eight Dollars ($8.00) per share then the average price shall be
Eight Dollars ($8.00) per share. An example of the calculations and distribution
to PBI stockholders is reflected in Exhibit 2.3A attached hereto.
The Board of Directors of PBI shall provide to TFIN and TAC a chart or
listing, marked Exhibit 2.3B, to be attached hereto, which will show for each
PBI stockholder, the method of exchange of PBI Common Stock for TFIN Common
Stock and/or cash. Exhibit 2.3B shall be provided to TFIN and TAC prior to the
Effective Time.
TFIN and TAC shall deliver cash and shares of TFIN Common Stock to the
Exchange Agent in accordance with Exhibit 2.3B at the Effective Time for the
payment of the Purchase Price to the stockholders of PBI.
Any issued share of PBI Common Stock held in its treasury at the
Effective Time shall be canceled.
SECTION 2.4 Fractional Shares. No fractional shares of the TFIN's
Common Stock will be issued in exchange for PBI Common Stock. Instead, each
holder thereof on the day next preceding the Effective Time shall be paid in
cash the value of the fractional share interest to which the holder thereof
would otherwise be entitled based upon the values established in Section 2.3.
SECTION 2.5 Authorized Shares. At the Effective Time, there shall have
been no change in the number of authorized shares of TFIN or of PBI.
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SECTION 2.6 Stockholder Objections to Merger. All written stockholder
objections to the Merger shall be subject to and determined by the requirements
of Colorado law. TFIN, TAC and PBI agree that prior to the Effective Time
neither corporation will, without the express written consent of the other,
voluntarily make any payment with respect to, or settle or offer to settle any
such objection. Any stockholder of PBI who objects to the Merger and who becomes
entitled to any statutory right for payment for his/her shares of stock shall
receive payment from the Surviving Corporation (but only after the amount
thereof shall have been agreed upon or finally determined pursuant to said
statute) and after payment thereof, said shares shall be canceled.
SECTION 2.7 Accounting Matters. The assets of TAC and PBI as of the
Effective Time shall be taken up on the books of the Surviving Corporation in
the amounts at which they shall be carried at that time on the books of the
respective corporations. The amount of capital of the Surviving Corporation
after the merger shall be equal to the sum of the aggregate amount of the par
value of the TFIN Common Stock to be issued in the Merger and of the aggregate
par value of the TFIN Common Stock that will remain issued upon the Merger. The
surplus of the Surviving Corporation after the Merger, including any surplus
arising in the Merger, shall be available to be used for any legal purposes for
which a surplus may be used. Differences in the accounting procedures of either
TAC or PBI corporations shall be reconciled as determined by the Surviving
Corporation.
ARTICLE III
PROXIES FROM STOCKHOLDERS
SECTION 3.1 Proxies. PBI acknowledges that the persons listed in
Schedule 3.1 have agreed that they will vote the shares owned by them in favor
of this Merger Agreement and the transactions contemplated hereby, subject to
required regulatory approvals, and that they will retain the right to vote such
shares during the term of this Merger Agreement and have given TFIN a proxy to
vote such shares in favor of the merger if they should fail to do so pursuant to
a Voting Agreement and Irrevocable Proxy in substantially the form attached
hereto as Exhibit 3.1.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF TFIN AND TAC
TFIN and TAC, jointly and severally, hereby represent and warrant to
PBI and the stockholders of PBI as follows:
SECTION 4.1 Organization and Authority. Each corporation is a
corporation duly organized, validly existing and in good standing under the laws
of the state of Kansas. Each has corporate power to carry on its business as it
is now being conducted and is qualified to do business in every jurisdiction in
which the character and location of the assets owned by it or the nature of the
business transacted by it require qualification. TFIN is duly registered as a
bank holding company under the provisions of the Bank Holding
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Company Act of 1956, as amended. TFIN has all requisite corporate power and
authority to enter into this Merger Agreement, and to consummate the
transactions contemplated hereby. The execution, delivery and performance of
this Merger Agreement, and the consummation of the transactions contemplated
hereby, have been duly authorized by all necessary corporate action on the part
of TFIN. TAC has the power to enter into and perform this Merger Agreement and
the execution, delivery and performance of this Merger Agreement by TAC and the
consummation by TAC of the transactions contemplated hereby have been duly
authorized by its Board of Directors and by TFIN as the sole stockholder of TAC.
Assuming due execution and delivery by PBI, this Merger Agreement constitutes a
valid and binding obligation of TFIN and TAC, enforceable in accordance with its
terms, subject to applicable conservatorship, receivership, bankruptcy,
insolvency and similar laws affecting creditors' rights and remedies generally,
and subject, as to enforceability, to general principles of equity (including
without limitation specific performance), whether applied in a court of law or a
court of equity.
SECTION 4.2 No Violations. Subject to approval by the appropriate
regulatory agencies, the execution, delivery and performance of this Merger
Agreement by TFIN and TAC do not, and the consummation of the transactions
contemplated hereby will not, constitute (i) a breach or violation of, or a
default under, any law, rule or regulation or any judgment, decree, order,
governmental permit or license, or agreement, indenture or instrument of TFIN
and TAC or any subsidiary of TFIN and TAC or to which TFIN and TAC or any
subsidiary (or any of their respective properties) is subject, (ii) a breach or
violation of, or a default under, the articles of incorporation, charter or
bylaws of TFIN and TAC or any subsidiary of TFIN and TAC or (iii) a breach or
violation of, or a default under (or an event which with due notice or lapse of
time or both would constitute a default under), or result in the termination of,
accelerate the performance required by, or result in the creation of any lien,
pledge, security interest, charge or other encumbrance upon any of the
properties or assets of TFIN and TAC or any subsidiary of TFIN and TAC under any
of the terms, conditions or provisions of any note, bond, indenture, deed of
trust, loan agreement or any other agreement, instrument or obligation to which
TFIN and TAC or any subsidiary of TFIN and TAC is a party, or to which any of
their respective properties or assets may be bound or affected.
SECTION 4.3 Capital Stock of TFIN. TFIN has total authorized capital
stock consisting of 60,000,000 shares of common stock, $0.00 par value, and
10,000 shares of preferred, $0.00 par value. All of the issued and outstanding
shares of TFIN common stock are fully paid and non-assessable, and there exist
no preemptive rights, options, obligations or rights of any character whereby
either corporation could be required to issue additional capital stock to any
person, except as specially disclosed.
SECTION 4.4 Financial Statements. The consolidated balance sheets of
TFIN as of December 31, 2000 and all related notes to the foregoing, all of
which have been delivered to PBI and have been certified by KPMG LLP,
independent certified public accountants. All of the foregoing financial
statements have been prepared in accordance with generally accepted accounting
principles and practices which were applied on a
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consistent basis, and present fairly in all material respects the financial
position, results of operation and changes of financial position of TFIN as of
their respective dates and for the periods indicated. From the date of the last
such statement to the date hereof, there has been no material adverse change in
the financial condition, properties, assets, liabilities, business or prospects
of TFIN.
SECTION 4.5 Litigation and Proceedings. Except as disclosed on Exhibit
4.5 attached hereto, there is no suit, action or legal or administrative
proceeding pending, or to the knowledge of either TFIN or TAC, threatened,
against either of them, which, if adversely determined, might materially and
adversely affect the financial condition of the corporation or the conduct of
its businesses. Nor is there any decree, injunction or order of any court,
governmental department or agency outstanding against either corporation having
any such effect.
SECTION 4.6 Filing of Reports. Both TFIN and TAC have filed all
applicable reports, returns and filing information and data with state and
federal banking authorities and regulatory authorities as required by law or
regulation.
SECTION 4.7 Material Changes in Operations. Both TFIN and TAC have each
conducted their respective businesses, only in the ordinary and usual course of
business and neither corporation or their respective bank operations have
undergone or suffered any material change in financial condition, properties,
assets, liabilities, business, operations or prospects which in any individual
case or in aggregate materially adversely affects the corporation.
SECTION 4.8 No Conflict with Other Instruments. At the Effective Time,
the consummation of the transactions contemplated by this Merger Agreement will
not result in the breach of any term or provision of or constitute a default
under any indenture, mortgage, deed of trust or other material agreement or
instrument to which either TFIN or TAC is a party.
SECTION 4.9 Labor Relations; Employees; ERISA. Neither TFIN nor TAC is
a party to or affected by any collective bargaining agreement or employment
agreement, nor is either corporation a party to any pending or threatened labor
dispute, organizational efforts or labor negotiations. Both corporations have
complied with all applicable laws relating to the employment of labor, including
but not limited to, the provisions thereof relating to wages, hours, collective
bargaining, payment of social security taxes, and equal employment opportunity,
the violations of which would have a materially adverse impact on their
respective businesses. Neither corporation is liable for any arrears of wages or
any taxes or penalties for failure to comply with any of the foregoing. Except
for the Team Financial, Inc. Employees' Stock Ownership Plan; TFIN Employee
Stock Purchase Plan, and the TFIN Stock Incentive Plan; neither of the
corporations has any written or oral retirement, pension, profit sharing, stock
option, bonus or other employee benefit plan or practice other than group health
and accident insurance. Neither of the corporations has violated any of the
provisions of ERISA, and none of them has engaged in any "prohibited
transactions" as such term is defined in Section 406 of ERISA.
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SECTION 4.10 Environmental Compliance. TFIN and TAC are in material
compliance with all relevant laws concerning conservation and protection of the
environment. No real property owned or leased by any of said corporations is
being used or has at any time in the past ever been used for the storage
(whether permanent or temporary), disposal, or handling of any hazardous
materials, hazardous waste, hazardous substance, contaminant or pollutant nor is
any such material, waste, substance, contaminant, or pollutant located in, on,
or under, or at the real or personal property owned, leased or used by any of
said corporation. No real or personal property of any corporation has ever been
used for the purpose of a dump site. Notwithstanding the foregoing, all
representations or warranties made under this Section 4.9 with respect to the
real and personal property owned by virtue of routine collection and/or
foreclosure activities undertaken by any subsidiary owned by TFIN or TAC to
enforce obligations of borrowers are made only to the best knowledge of the
corporations.
SECTION 4.11 Employment of Aliens. TFIN and TAC and their respective
subsidiaries are in material compliance with the Immigration and Control Act of
1986 and amendments thereof.
SECTION 4.12 Absence of Undisclosed Liabilities. Except as and to the
extent reflected or reserved against, TFIN and TAC or their wholly-owned
subsidiaries do not have any material liabilities or obligations whether
accrued, absolute, contingent or otherwise, including, governmental charges or
lawsuits, or any tax liabilities due or to become due.
SECTION 4.13 Tax Matters. TFIN and TAC have filed all federal, state,
municipal and local income, excise, property, special district, sales, transfer
and other tax returns and reports which are required to be filed up to and
including the Effective Time and have paid all taxes which have become due
pursuant to such returns or assessments which have become payable. There are no
examinations, reviews, audits or investigations of any tax return or report
which are presently pending or threatened.
SECTION 4.14 Information and Proxy Statement. The information relating
to TFIN and TAC including any information or proxy statement distributed
pursuant to this Merger will be accurate and complete in all material respects,
will not omit to state any material fact required to be stated therein or
necessary to prevent such information from being misleading, and will comply in
all material aspects with the requirements of federal and state law on the date
of first mailing of such information to the stockholders of PBI.
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SECTION 4.15 Broker/Advisor's Fees. TFIN has employed a broker advisor
in connection with the transactions contemplated by this Merger Agreement and
will be solely responsible for the payment of fees incurred thereby pursuant to
its separate agreement.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PBI
PBI hereby represents and warrants to each of TFIN and TAC as follows:
SECTION 5.1. Organization and Good Standing.
a. PBI is a corporation duly organized, validly existing and
in good standing under the laws of the State of Colorado with the corporate
power and authority to own its properties and conduct its business as it is now
being conducted and is duly registered as a bank holding under the Bank Holding
Act of 1956, as amended. The conduct of PBI's business and the ownership of its
properties do not require PBI to qualify as a foreign corporation in any
jurisdiction, except where the failure to be so qualified individually or in the
aggregate would not materially and adversely affect the business, operations,
properties or financial condition of PBI and its subsidiary.
b. PBI has one wholly-owned subsidiary: Colorado Springs
National Bank, Colorado Springs, Colorado, ("BANK") which is a national banking
corporation duly organized, validly existing and in good standing under the laws
of the United States of America, with the corporate power and authority to carry
on its business as it is now being conducted. BANK is duly qualified to do
business in each jurisdiction in which the conduct of its business requires such
qualification except where the failure to be so qualified individually or in the
aggregate would not materially and adversely affect the business, operations,
properties or financial condition of PBI and/or BANK.
SECTION 5.2 Authority. PBI has all requisite corporate power and
authority to enter into this Merger Agreement, and to consummate the
transactions contemplated hereby. The execution and delivery of this Merger
Agreement, and the consummation of the transactions contemplated hereby have
been duly authorized by all necessary corporate action on the part of PBI. This
Merger Agreement has been duly executed and delivered by PBI, and assuming due
execution and delivery by TFIN, constitutes a valid and binding obligation of
PBI, enforceable in accordance with its terms subject to applicable
conservatorship, receivership, bankruptcy, insolvency and similar laws affecting
creditors' rights and remedies generally, and subject, as to enforceability, to
general principles of equity (including without limitation specific
performance), whether applied in a court of law or a court of equity. Attached
hereto as Exhibits 5.2A and 5.2B, respectively, are certified resolutions of the
Board of Directors and the stockholders of PBI.
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SECTION 5.3 Stockholder Approval. The Board of Directors of PBI has
directed or will direct, that this Merger Agreement and the transactions
contemplated hereby be submitted to PBI's stockholders for approval at a meeting
of such stockholders and, except for adoption of this Merger Agreement by the
requisite vote of the PBI's stockholders, no other stockholder action is
necessary to approve this Merger Agreement and to consummate the transactions
contemplated hereby. The Board of Directors will recommend that the stockholders
approve the transactions contemplated hereby, subject to their fiduciary duties.
The approval of the holders of a majority of the outstanding shares of PBI
Common Stock entitled to vote with respect to such matter is required for
approval of this Merger Agreement and to consummate the transactions
contemplated hereby. No approval of a number of outstanding shares of PBI
greater than that required by the relevant statutory provisions is required for
approval of this Merger Agreement and the consummation of the transactions
contemplated hereby.
SECTION 5.4 No Violations. Except for the approvals of the appropriate
regulatory agencies and such filings and registrations as are required under
federal and state securities and Blue Sky laws, the execution, delivery and
performance of this Merger Agreement by PBI do not, and the consummation of the
transactions contemplated hereby will not, constitute (i) a breach or violation
of, or a default under any law, rule or regulation or any judgment, decree,
order, governmental permit or license, or agreement, indenture or instrument of
PBI or BANK or to which PBI or BANK (or any of their respective properties) is
subject, (ii) a breach or violation of, or a default under, the articles of
incorporation, charter or bylaws of PBI or BANK or (iii) a breach or violation
of, or a default under (or an event which with due notice or lapse of time or
both would constitute a default under), or result in the termination of,
accelerate the performance required by, or result in the creation of any lien,
pledge, security interest, charge or other encumbrance upon any of the
properties or assets of PBI or BANK under any of the terms, conditions or
provisions of any note, bond, indenture, deed of trust, loan agreement or other
agreement, instrument or obligation to which the PBI or BANK is a party, or to
which any of their respective properties or assets may be bound or affected.
SECTION 5.5 Consents. Except for the approvals of the appropriate
regulatory agencies and such filings and registrations as are required under
federal and state securities and Blue Sky laws, no filing or registration with,
or authorization, consent or approval of, any public body or authority is
necessary for the consummation by PBI of the Merger or the other transactions
contemplated by this Merger Agreement.
SECTION 5.6 Capitalization. PBI has authorized capital stock consisting
of One Hundred Thousand shares of common stock, One Dollar ($1.00) par value, of
which Ninety Three Thousand Twenty Two (93,022) shares are issued and
outstanding with no shares held as treasury stock. All of the issued and
outstanding shares of PBI Common Stock are validly issued, fully paid and
non-assessable. There are no outstanding warrants, options, subscriptions,
contracts, rights or other agreements or commitments obligating PBI to issue or
sell any additional shares of PBI Common Stock nor are there
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outstanding any securities, debts, obligations or rights which are convertible
into or exchangeable for shares of PBI Common Stock. The authorized capital
stock of BANK consists of One Hundred Thousand (100,000) shares of common stock,
Ten Dollars ($10.00) par value per share ("BANK Stock"), of which One Hundred
Thousand (100,000) shares have been duly and validly issued, are fully paid,
and, are owned directly by PBI. Such shares are free and clear of all liens,
encumbrances, equities or claims. There are no outstanding warrants, options,
subscriptions, contracts, rights or other arrangements or commitments obligating
PBI or BANK to issue or sell any additional shares of BANK's capital stock nor
are there outstanding any securities, debts, obligations or rights which are
convertible into or exchangeable for shares of capital stock or any other equity
security of BANK.
SECTION 5.7 Government Regulation. PBI and BANK hold all material
licenses, certificates, permits, franchises and rights from all appropriate
federal, state or other public authorities necessary for the lawful conduct of
their respective businesses and ownership of their respective properties. PBI
and BANK have substantially complied with all material federal, state and local
statutes, regulations, ordinances or rules applicable to the ownership of their
respective properties or the conduct of their respective businesses.
SECTION 5.8 Financial Statements. PBI has previously delivered to TFIN
and TAC 1999 and 2000 year end audited financial statements for PBI and the last
four call reports for BANK (March 2001, December 2000, September 2000, June
2000). Such Financial Statements have been prepared (except for the absence of
notes thereto) in accordance with generally accepted accounting principles 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 PBI or the BANK, as applicable, as of their respective
dates and for the periods indicated. PBI has no liabilities or obligations of a
type which would be included in a balance sheet prepared in accordance with
generally accepted accounting principles whether related to tax or non-tax
matters, accrued or contingent, due or not yet due, liquidated or unliquidated,
or otherwise, except as and to the extent disclosed or reflected in the balance
sheet of PBI as of December 31, 2000, or incurred since 2000 year end, in the
ordinary course of business. From April 2, 2001 until the date hereof, there has
been no material adverse change in the financial condition, properties, assets,
liabilities, rights or business of PBI or BANK, or in the relationship of PBI
and BANK with respect to its employees, creditors, suppliers, distributors,
customers or others with whom it has business relationships.
SECTION 5.9 Legal Proceedings. Except as disclosed on Exhibit 5.9
attached hereto, there are as of the date hereof no actions, suits, claims,
demands or other proceedings or investigations, either judicial or
administrative, pending or, to the knowledge of PBI, threatened against or
affecting the properties, assets, rights or business of PBI or BANK or the right
to carry on or conduct their respective businesses, nor are there any grounds
therefor, which, if adversely determined, would in the aggregate adversely
affect the business, operations, properties or financial condition of PBI or
BANK, except as specifically disclosed and escrowed for herein. Except as
disclosed on
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Exhibit 5.9 attached hereto, there are as of the date hereof no actions, suits,
claims, demands or other proceedings or investigations, either judicial or
administrative, pending or threatened which will or could prevent or interfere
with the consummation of the transactions contemplated by this Merger Agreement.
PBI agrees to advise TFIN and TAC if at any time between the date hereof and the
Effective Time, any legal proceeding as described in this paragraph is initiated
or threatened.
SECTION 5.10 Title to Assets. Except as disclosed on Exhibit 5.10A and
except for securities pledged to secure public funds deposits or subject to
customer repurchase agreements entered into in the ordinary course of business,
and leased property discussed below; PBI and BANK have good and marketable title
to and possession of all of their respective real and personal properties and
assets, in each case free and clear of any liens, restrictions, encumbrances,
rights, title and interests of others, except for other real estate owned and
except as reflected on their respective financial statements and except for the
lien of current taxes, covenants and restrictions of record, and other minor
imperfections of title not affecting marketability, which liens, covenants,
restrictions and imperfections do not materially affect the value of such
property and do not interfere with the use made of such property by PBI and
BANK. The real and personal properties and assets held under lease by PBI and
BANK are held by them under valid, subsisting and enforceable leases with such
exceptions as do not interfere with the use made of such properties and assets
by PBI and BANK. No consent is necessary under the terms of any such lease in
connection with the consummation of the transactions contemplated hereby.
Attached hereto as Exhibit 5.10B is a list of leases to which PBI or BANK is a
party.
SECTION 5.11 Undisclosed Liabilities. As of the date hereof, neither
PBI nor BANK have any debt, liability or obligation (whether accrued,
contingent, absolute or otherwise) of the nature which would customarily be
included in a corporate balance sheet or the notes thereto prepared in
accordance with generally accepted accounting principles that is not reflected
or reserved against in the PBI Financial Statements or was not incurred in the
ordinary course of their business.
SECTION 5.12 Reserves: PBI specifically represents and warrants to TAC
that the reserve for possible loan and lease losses shown in the Consolidated
Financial Statements of PBI and its wholly-owned subsidiary, BANK, is adequate
in all respects, under the requirements of generally accepted accounting
principles and regulatory requirements, to provide for possible losses, net of
recoveries relating to loans previously charged off, on loans outstanding and as
a percentage of loans shall be in an amount equal to the gross loans of BANK
multiplied by one percent (1%) of such loans outstanding at the Effective Time
less the amount of existing loan loss reserves of BANK. The resulting sum shall
be divided by two (2) and such resulting amount shall be added to the loan loss
reserve immediately prior to the Effective Time. In addition, and in lieu of
additional reserves, PBI and BANK represent and warrant that any technical
exceptions related to loans as identified in the listing provided by TFIN to
BANK and the list of credit concerns provided by TFIN to BANK under date of
April 10, 2001 will be corrected to the reasonable satisfaction of TFIN prior to
the Effective Time.
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SECTION 5.13 Taxes. PBI and BANK have timely filed all tax returns
required to be filed by them, and the PBI and BANK have timely paid and
discharged all taxes due in connection with or with respect to the filing of
such tax returns and have timely paid all other taxes as are due, except such as
are being contested in good faith by appropriate proceedings and with respect to
which PBI 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. 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 PBI or BANK any deficiency or claim for additional taxes. Neither
PBI nor BANK has granted any waiver of any statute of limitations with respect
to, or any extension of a period for the assessment of, any tax. There are no
tax liens on any assets (excluding OREO properties) of PBI or BANK. Neither PBI
nor BANK has received a ruling or entered into an agreement with the Internal
Revenue Service or any other governmental entity or taxing authority or agency
that would have a Material Adverse Effect (as defined below) on PBI or BANK,
taken as a whole, either before or after the Effective Time. For purposes of
this Merger Agreement, "Material Adverse Effect" with respect to PBI or BANK
means an effect that: (1) is materially adverse to the business, financial
condition, results of operations or prospects of PBI or BANK taken as a whole;
(2) significantly and adversely affects the ability of the PBI or BANK to
consummate the transactions contemplated by this Merger Agreement by the
Effective Time or to perform their material obligations under this Merger
Agreement; or (3) enables any persons to prevent the consummation by the
Effective Time of the transactions contemplated by this Merger Agreement. PBI
agrees to provide assistance in the preparation of income tax returns for PBI
and BANK from the commencement of the current fiscal year through the Effective
Time with such returns to be completed within ninety (90) days after the
Effective Time.
SECTION 5.14 Contracts. Except as set forth on Exhibit 5.14 attached
hereto, neither PBI nor BANK is party to or bound by any:
a. Employment contract;
b. Bonus, deferred compensation, savings, profit sharing,
severance pay, pension or retirement plan or arrangement, except for the Plan(s)
referenced in Section 5.17 hereof;
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c. Material lease or license with respect to any property,
real or personal, whether PBI or BANK is landlord or tenant, licensor or
licensee, involving a liability or obligation of PBI or BANK as obligor in
excess of $5,000 on an annual basis;.
d. Agreement, contract or indenture relating to the borrowing
of money by PBI or any subsidiary, excluding deposit obligations, obligations
under certificates of deposit, letters of credit, items in the process of
collection, commitments to loan or discount, endorsements made for collection
and guarantees made in the ordinary course of business;
e. Agreement with any present or former officer, director or
stockholder of PBI or BANK; or
f. Other contract, agreement or other commitment which is
material to the business, operations, property, prospects or assets or to the
condition, financial or otherwise, of PBI or BANK or which involve a payment by
PBI or BANK of more than $5,000 on an annual basis.
SECTION 5.15 Regulatory Reports; Examinations. PBI and BANK have timely
filed all material reports, registrations and statements, together with any
amendments required to be made with respect thereto, with all governmental or
regulatory authorities, agencies, courts, commissions or other entity
("Governmental Entity") and have paid all fees and assessments due and payable
in connection therewith. Except for normal examinations conducted by a
Governmental Entity in the regular course of the business of PBI and BANK, no
Governmental Entity has initiated any proceeding or investigation into the
business or operations of PBI or BANK. There is no unresolved material
violation, criticism, or exception by any Governmental Entity with respect to
any written report or statement relating to any examinations of PBI or BANK.
SECTION 5.16 Conduct. From April 2, 2001 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 PBI or BANK or in the relationship of PBI or BANK with
respect to their employees, creditors, suppliers, distributors, customers or
others with whom they have business relationships.
b. The business affairs of PBI and BANK have been conducted
and carried on only in their ordinary and regular course of business, and PBI
and BANK have not incurred or become subject to any liabilities or obligations
other than those incurred in their ordinary course of business, those incurred
pursuant to existing contracts included on Exhibit 5.14, and those incurred
pursuant to commitments permitted hereby.
c. Neither PBI nor BANK have entered into any employment
contract with any director, officer or salaried employee, paid any or made any
accrual or arrangement for payment of bonuses or special compensation of any
kind or any severance or
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termination pay to any of their officers, employees or directors, increased the
rate of compensation, if any, or instituted or made any material increase in any
officer's, employee's or director's welfare, retirement or similar plan or
arrangement, other than merit increases made in accordance with past practices
and procedures. It is understood that PBI and BANK, in their sole discretion,
reserve the right, at their cost and expense, to make provision for an end of
year merit bonus or other such payment to employees of BANK.
SECTION 5.17 Compliance with ERISA. Neither PBI nor BANK has
established, maintained or contributed at any time during the five-year period
ending as of the Effective Time to any employee benefit plan (as defined in
Sections 3(3) or 3(37) of the Employment Retirement Income Security Act of 1974
("ERISA")) or any other plan with respect to which any governmental filings are
required, except for the Colorado Springs National Bank 401K Plan. The Plan is
sponsored by BANK . A true and accurate copy of the Plan, any related trust
agreements and each of the amendments thereto has been provided to TFIN and TAC
together with (i) all determination letters received in respect of any qualified
plans, and (ii) all required reports and supporting schedules filed with any
government agency in respect of the Plan for the three most recent years ending
on or before the date hereof. The Plan and each fiduciary (as defined in Section
3(21) of ERISA) of the Plan are in compliance in all material respects with all
applicable requirements (including nondiscrimination requirements in effect as
of the date hereof) of the Internal Revenue Code of 1986 ("Code"), including,
but not limited to, Sections 79, 105, 106, 125, 401, 501, and 4975 of the Code.
For purposes of this Section 4.16, noncompliance with the Code or ERISA is
material if such noncompliance could have a Material Adverse Effect on the
condition of the Plan or of PBI or BANK, either as of the Effective Time or upon
discovery of the noncompliance. All required contributions to the Plan through
the date hereof have been made. PBI and BANK (each with respect to the Plan), as
well as the Plan, have no material current or threatened liability of any kind
to any person, including but not limited to any government agency, as of the
date hereof, other than for the payment of benefits in the ordinary course.
SECTION 5.18 Defaults. Neither PBI nor BANK is in material breach or
material default under any agreement or commitment to which PBI or BANK is a
party, or under any loan agreement, note, security agreement, guarantee or other
document pursuant to or in connection with PBI's or BANK's extension of credit;
and to PBI's knowledge, there has not occurred any event which, after the giving
of notice, the lapse time or otherwise, would constitute any such default under,
or result in any such breach of, any such agreement, commitment or extension of
credit.
SECTION 5.19 Insurance. Complete and correct copies of all material
policies of fire, product or other liability, workers' compensation and other
similar forms of insurance owned or held by PBI and BANK are attached hereto as
Exhibit 5.19. 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
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(other than retrospective premiums which may be payable with respect to worker's
compensation insurance policies); and no notice of cancellation or termination
has been received with respect to any such policy. Such policies are valid and
enforceable policies. The insurance policies to which PBI or BANK are parties
are sufficient for compliance with all material requirements of law and all
material agreements to which PBI or BANK are parties and will be maintained by
PBI and BANK until the Effective Time. Neither PBI nor BANK has been refused any
insurance with respect to any material assets or operations, nor has coverage
been limited in any respect material to their operations by any insurance
carrier to which they have applied for any such insurance or with which they
have carried insurance during the last five (5) years.
SECTION 5.20 Absence of Adverse Agreements. Neither PBI nor BANK is a
party to any agreement or instrument or any judgment, order or decree or any
rule or regulation of any court or other governmental agency or authority which
adversely affects or is reasonably likely to result in a adverse effect on the
financial condition, results or operations, assets, business or prospects of PBI
or BANK, taken as a whole.
SECTION 5.21 Internal Controls and Records. PBI and BANK maintain books
of account which accurately and validly reflect, in all material respects, all
loans, mortgages, collateral and other business transactions and maintain
accounting controls sufficient to ensure that all such transactions are (a) in
all material respects, executed in accordance with its management's general or
specific authorization, and (b) recorded in conformity with generally accepted
accounting principles.
SECTION 5.22 Loans.
a. BANK is not a party to any written or oral loan agreement,
note or borrowing arrangement which has been classified as "substandard",
"doubtful," "loss," "other loans especially mentioned" or any comparable
classifications by PBI or BANK or banking regulators, except as reflected on a
list attached hereto and marked Exhibit 5.22 A.
b. Except as set forth on Exhibit 5.22b attached hereto,
neither PBI nor BANK is a party to any written or oral loan agreement, note, or
borrowing arrangement, including any loan guaranty, with any director or
executive officer of PBI or BANK, or any person, corporation or enterprise
controlling, controlled by or under common control with any of the foregoing;
c. Neither PBI nor BANK is a party to any written or oral loan
agreement, note or borrowing arrangement in violation of any law, regulation or
rule of any governmental authority and which violation is reasonably likely to
result in a adverse effect on PBI or the BANK.
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SECTION 5.23 Environmental Laws.
a. The operations of PBI and BANK comply in all respects with
all applicable past and present federal, state and local environmental statutes
and regulations and neither the condition of any property owned by PBI or BANK
nor the operation of the business of any of such entities violates in any
respect any applicable federal, state or local environmental statute or
regulation.
b. None of the operations of PBI or BANK is subject to any
judicial or administrative proceeding alleging the violation of any federal,
state or local environmental health or safety statute or regulation nor is it
the subject of any claim alleging damages to health or property pursuant to
which PBI or BANK may be liable.
c. None of the operations of nor any of the properties owned
by PBI or BANK is the subject of any federal, state or local investigation in
evaluating whether any remedial action is needed to respond to a release or
threatened release of any hazardous waste or substance from whatever source.
d. No condition or event has occurred which, with notice or
the passage of time or both, would constitute a violation of any federal, state
or local environmental law and at no time has PBI or BANK stored or used any
pollutants, contaminants or hazardous or toxic waste, substances or materials on
or at any location owned by PBI or BANK.
e. There are no underground storage tanks now or heretofore
located on any real property owned by PBI or BANK.
f. Neither PBI nor BANK has ever been notified by either a
federal, state or local governmental authority, or any private party, that PBI
or BANK is a potentially responsible party for remedial costs spent addressing
the release, or threat of a release, of a hazardous substance and to the
environment pursuant to the Comprehensive Environmental Response, Compensation
or Liability Act, 42 U.S.C. 9601, et seq. or any corresponding state law. TFIN
or TAC may obtain at its option and expense on or prior to 120 days following
the date hereof an environmental audit of all properties and assets of PBI and
BANK whether directly owned or classified as other real estate owned. Such
environmental audit shall constitute a part of the due diligence process, should
TFIN or TAC choose to pursue it, and if TFIN or TAC 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 PBI or
BANK, then TFIN or TAC may deem the due diligence unsatisfactory and terminate
this Agreement under the terms of Section 6.1 hereinafter.
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SECTION 5.24 Labor Matters
a. PBI and BANK are in compliance with all applicable laws
respecting employment and employment practices, terms and conditions of
employment and wages and hours, and are not engaged in any unfair labor
practice.
b. There is no unfair labor practice complaint against PBI or
BANK pending before the National Labor Relations Board.
c. There is no labor strike, dispute, slowdown, representation
campaign or work stoppage actually pending or to the best of PBI's knowledge,
threatened against or affecting PBI or BANK.
d. No grievance or arbitration proceeding arising out of or
under collective bargaining agreements is pending and no claim therefor has been
asserted against PBI or BANK.
e. Neither PBI nor BANK is experiencing any material work
stoppage.
SECTION 5.25. Real Estate. BANK owns the real property listed on
Exhibit 5.25. BANK has good and marketable title in fee simple to the real
property shown on the Exhibit. There are no leases or other liens or
encumbrances which affect the real estate except as disclosed by the title
evidence previously supplied by BANK to TFIN. No zoning ordinance prohibits,
interferes with or materially impairs the usefulness of such property owned by
BANK and all the premises are in good operating condition and repair, normal
wear and tear excepted.
SECTION 5.26. Personal Property. BANK has good and marketable title to
all of its machinery, equipment, materials, supplies and other personal property
contained within the bank facility. This personal property is free and clear of
all liens and encumbrances. All of the personal property is in good operating
condition, normal wear and tear excepted. Attached hereto as Exhibit 5.26 is a
list of personal property which the stockholders of PBI exclude from this merger
transaction. The parties understand that these items were a part of the
collection of artifacts from the travels and various hobbies of the original
President of Colorado Springs National Bank, Xxxxxx X. Xxxxxxx. It is further
understood that the list of items are of nominal value and are not included
within the value of the capital of BANK.
SECTION 5.27. Information Supplied. None of the information supplied or
to be supplied by PBI for inclusion or incorporation by reference in the Proxy
Statement will, at the date of mailing to stockholders and at the times of the
meetings of 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 were made, not misleading, other
than information supplied by TFIN or TAC.
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SECTION 5.28 Full Disclosure. No statement contained in any document,
certificate, or other writing furnished or to be furnished by or at the
direction of PBI to TFIN in, or pursuant to the provisions of, this Merger
Agreement contains or shall contain any untrue statement of fact or omits or
shall omit to state any fact necessary, in light of the circumstances under
which it was made, in order to make the statements herein or therein not
misleading.
ARTICLE VI
TERMINATION
SECTION 6.1 Termination. This Merger Agreement may be terminated and
the Merger may be abandoned at any time notwithstanding approval thereof by the
stockholders of PBI, but prior to the Effective Time:
a. By written agreement jointly approved by both boards of
directors of PBI and TAC.
b. By the board of directors of either TAC or PBI if any court
of competent jurisdiction in the United States or other state or federal
regulatory or governmental body shall have issued an order, decree or ruling or
taken any other action restraining, enjoining or otherwise prohibiting the
transactions contemplated by this Merger Agreement and such order, decree,
ruling or other actions shall have become final and nonappealable.
c. By the board of directors of either TAC or PBI in the event
of a material breach or material misrepresentation by the other party giving
either TAC or PBI the right to terminate the Merger Agreement.
d. By the board of directors of either TAC or PBI, if within
180 days from the date hereof, (i) TAC, despite using its best efforts, has not
obtained all required regulatory approvals, notices of non-disapproval and
consents required to consummate this Merger Agreement, or (ii) there is any
remaining action or inaction by any regulatory body or agency, or any waiting
period remains, before the Merger can be lawfully concluded.
e. By the board of directors of TAC if a significant portion
of the assets of BANK are physically damaged, lost or destroyed prior to the
Effective Time.
SECTION 6.2 Survival. All obligations set forth in Section 9.5 shall
survive any termination of this Merger Agreement. All representations and
warranties set forth in Article IV and Article V shall survive the closing.
Waiver of any liability for a breach of this provision must be in writing signed
by the parties in order to be effective.
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ARTICLE VII
CLOSING PREPARATIONS
PROXY STATEMENT
SECTION 7.1 TFIN shall, as promptly as practicable after the date of
this Merger Agreement and the furnishing by PBI of all information regarding
TFIN required or desired by PBI to be reflected therein, prepare an Offering
Circular relating to shares of TFIN Common Stock to be issued at the Effective
Time and containing a Proxy Statement ("Proxy Statement") for use at the PBI
Stockholders' Meeting referred to in Section 8.1. TFIN shall use its best
efforts to enable the proxy material to be mailed to stockholders as promptly as
practicable. PBI will furnish to TFIN the information relating to PBI required
by TFIN to be included in the Offering Circular.
SECTION 7.2 Whether or not the transactions contemplated by this Merger
Agreement are consummated, the expenses of the Offering Circular and of
preparing and distributing the Proxy Statement shall be borne as follows:
a. PBI shall bear all fees and expenses of its auditors and
attorneys and its own costs of preparing the information on PBI required for the
Proxy/Offering Circular Statement.
b. TFIN shall bear all fees and expenses of drafting and
completing the Proxy/ Offering Circular, but not limited to all Proxy/Offering
Circular filing fees and all fees and expenses of its auditors and attorneys in
preparation of the Proxy/Offering Circular; and
c. TFIN shall bear all printing and mailing costs of the Proxy
/Offering Circular, except that such costs shall be borne by PBI if this Merger
Agreement is terminated by TFIN because of a material breach of this Merger
Agreement by PBI or is not approved by the requisite vote of stockholders of
PBI.
The Stockholders of PBI shall be sent a copy of any Offering Circular and/or
Proxy Statement which may be prepared pursuant to this section.
ARTICLE VIII
CLOSING CONDITIONS
STOCKHOLDERS' MEETING
SECTION 8.1 PBI shall call a Stockholders' Meeting to consider the
approval of this Merger Agreement and to authorize the transactions contemplated
by this Merger Agreement on a date selected by PBI , such date to be the
earliest practicable date after the date the Proxy Statement may first be sent
to PBI stockholders. Subject to its fiduciary obligations to PBI stockholders,
the Board of Directors of PBI will recommend to PBI stockholders in the Proxy
Statement that, at such Stockholders Meeting, they approve this Merger Agreement
and authorize the transactions contemplated by it.
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SECTION 8.2 Prior to the Closing, TFIN and TAC shall take all action
necessary to cause its Board of Directors to authorize the Merger and to take
any other corporate action necessary on their part to complete the Merger and
perform the transactions contemplated thereby.
SECTION 8.3 Closing of this Agreement shall be conditioned upon TAC
receiving an unqualified commitment for financing sufficient to provide the
necessary sums of cash to be paid as part of the purchase price specified
hereunder.
SECTION 8.4 PBI and TFIN shall promptly provide each other information
as to any significant developments in the performance of this Merger Agreement
and shall promptly notify the other if it discovers that any of its
representations and warranties contained in this Merger Agreement or in any
document delivered in connection with this Merger Agreement was not true and
correct in all material respects or became untrue or incorrect in any material
respect.
The obligation of the parties to effect the Merger contemplated herein
shall be subject following conditions which may, to the extent permitted by law,
be waived by the parties at their respective option:
SECTION 8.5 Employment and Non-Competition Agreements. The closing of
this Merger Agreement is conditioned upon the approval and execution of
employment and non-competition agreements between TFIN and Xxxxxxxx X. Xxxxxxx
prior to the Effective Time. It is contemplated that the employment agreement
shall be for a period of six (6) months with terms related to salary and duties
acceptable to both parties. The noncompetiton agreement shall be for a
reasonable period of time and other reasonable terms acceptable to both parties.
Such agreements shall be provided by TFIN to PBI on a confidential basis with
the terms thereof not to be revealed to anyone other than the senior officers of
PBI, stockholders of PBI and as required by any regulatory authority or court
order. A waiver of the confidentiality provisions of this section may be made by
either PBI or Xxxxxxxx X. Xxxxxxx.
SECTION 8.6 Regulatory Approvals. All required notices, approvals,
failures to disapprove, notices of non-disapproval and consents regarding the
proposed purchase and sale transaction have been obtained from the Federal
Reserve Bank of Kansas City and all other applicable state or federal regulatory
bodies and agencies, and all required waiting periods shall have expired.
SECTION 8.7 Representation and Warranties. All representations and
warranties of the parties set forth in this Merger Agreement shall be true as of
the Effective Time.
SECTION 8.8 Performance of Obligations. The parties shall have
performed and complied with all obligations which are to be performed or
complied with by them under this Merger Agreement prior to or on the date of the
Effective Time.
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ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Covenants. PBI shall not, without the express written
consent of TAC, permit BANK to:
a. Incur any indebtedness for borrowed money (except for
federal funds, repurchase agreements entered into in the ordinary and usual
course of business, deposits received by the BANK and endorsement, for
collection or deposit, of negotiable instruments received in the ordinary and
usual course of business, and issuance of letters of credit by the BANK in the
ordinary course of business), assume, guarantee, endorse or otherwise as an
accommodation become liable or responsible for obligations of any other
individual, firm or corporation in excess of zero dollars ($0.00).
b. Make, grant or incur any obligation or liability to make or
grant a loan to any person or entity in excess of ONE HUNDRED THOUSAND DOLLARS
($100,000). In the event that PBI or BANK should request the issuance of a loan
in excess of the stated amounts, PBI or BANK shall provide Xxxxxx X. Xxxxxxxxxx
or his designee the information it would customarily prepare for determination
of whether a loan should be approved and Xxxxxx X. Xxxxxxxxxx or his designee
shall provide a written response either approving or rejecting the issuance of
such loan within five (5) business days of receipt of such request. Any
rejection of a loan by Xxxxxx X. Xxxxxxxxxx or his designee shall be done
utilizing a standard of commercial reasonableness. If any such loan is rejected,
the reasons therefore shall be stated in writing and provided to BANK.
c. Except for transactions in the ordinary and usual course of
business, sell or transfer any of its properties or assets or cancel, release or
assign any indebtedness owed to it or any claims held by it.
d. Make any purchase or commitment/obligation to purchase any
fixed asset in excess of TEN THOUSAND DOLLARS ($10,000) or enter into any
contractual obligation(s) for any related purpose(s) which individually or
collectively would be in excess of said amount.
e. Materially alter or change the customary terms and
conditions upon which it conducts business.
f. Materially alter or change the business or business
organization.
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g. Declare or pay any dividend. Provided, however, PBI may
declare dividend(s) prior to the Effective Time for the purpose of adjusting PBI
capital consistent with the formula for calculating the consideration as
provided for herein. Provided, further, PBI may pay any sums required for
estimated tax payments in connection with the dividend(s) paid to stockholders
described in this paragraph.
h. Issue any new shares of stock.
i. Purchase or acquire any additional brokered deposits or
borrowed funds following the execution of the Agreement.
SECTION 9.2 Cash Payment by TAC: At the time of signing this Merger
Agreement, TAC shall pay the sum of Fifty Thousand DOLLARS ($50,000) to PBI in
immediately available funds as and for a down payment, to be held in a interest
bearing escrow by BANK until the closing/Effective Time when said sum plus
accrued interest shall be applied to the distribution to stockholders provided
by this Merger Agreement. In the event of termination by mutual agreement,
failure to obtain regulatory approval, failure to obtain financing for the cash
portion of the purchase price, or for any cause attributable to the actions of
PBI or BANK said sum shall be returned to TFIN. In the event of termination for
any other cause, said sum shall be retained by PBI. If said sum is retained by
PBI the down payment retained by PBI shall constitute liquidated damages, in
lieu of all other damages of any nature whatsoever. The parties acknowledge and
agree that PBI's damages due to such a default are difficult to ascertain and
agree that the amount of the down payment represents a reasonable estimate of
PBI's damages for termination.
SECTION 9.3 Inspection and Due Diligence. Between the date hereof and
the Effective Time and upon reasonable notice, TFIN and its authorized
representatives shall be permitted full access during regular business hours to
all properties, books, records, contracts and documents of PBI and BANK. Between
the date hereof and the Effective Time PBI and BANK agree to give TFIN
reasonable notice of any regular or special meeting of the board of directors of
PBI and BANK and further agree that Xxxxxx X. Xxxxxxxxxx and/or Xxxxxxx X.
Xxxxxx may attend any such meeting as observers. From the date of this Merger
Agreement until the Effective Time, PBI will furnish to TFIN, within ten days of
their preparation, without separate request by TFIN, to the attention of Xxxxxxx
X. Xxxxxx, the following:
BANK month end balance sheet; BANK month end profit and loss statement and a
copy of all monthly reports presented to BANK's board of directors.
In addition to the items supplied by PBI pursuant to the previous sentence, PBI
shall furnish to TFIN and its authorized representatives all information with
respect to the affairs of PBI and BANK as may be reasonably requested. PBI shall
provide such information and answer such inquiries as TFIN may reasonably
request or make concerning the subject matter of the representations and
warranties of PBI made herein. Immediately
26
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prior to the Effective Time TFIN may, at its sole cost and expense conduct a
second due diligence examination of the assets of PBI and BANK for the period
from April 2, 2001 forward.
SECTION 9.4 Regulatory Approval. By June 30, 2001, TAC shall, at its
expense, file an appropriate application with all applicable state and federal
regulatory agencies and bodies to obtain applications and notices necessary to
obtain all required approvals or consents to consummate the transactions
contemplated herein. TAC shall use its best efforts to obtain all required
approvals, consents and failures to disapprove as promptly thereafter as
possible, and shall keep PBI fully apprised as to the progress of such efforts
and provide PBI copies of all filings, applications and notices, together with
all other significant documents and correspondence exchanged between TAC (or its
accountants or other representatives) and any such agencies and bodies with
respect thereto. Copies of all such materials prepared and filed with any
regulatory agency and bodies by or for TAC shall be furnished to Xxxxxx X.
Xxxxxx, attorney for PBI. In the event additional information or documentation
is requested by any regulatory agency or body, TAC shall comply with such
request as promptly as possible; in the event any such information or
documentation is in the possession or knowledge of PBI or BANK, TAC shall
immediately inform PBI, and PBI shall use its best efforts to make such
documentation or information promptly available to TAC or TAC's designated
representative.
SECTION 9.5 Confidential Information. Subject only to required legal or
regulatory disclosure, prior to the Effective Time, all information disclosed
to, obtained by or otherwise coming into the possession of the parties hereto
shall be maintained in strict confidence in accordance with the terms of that
certain Confidentiality Agreement dated January 31, 2001 and paragraphs (f), (g)
of the Letter of Interest between the parties and the Addendum executed by TFIN
and Xxxxxxxx X. Xxxxxxx on behalf of PBI and the stockholders dated, March 2,
2001. The terms of these documents related to confidentiality are specifically
ratified by TFIN and PBI and incorporated into this Merger Agreement as if fully
set forth at length herein.
SECTION 9.6 Headings. Headings contained in this Merger Agreement are
inserted for convenience only and do not constitute a part of the Merger
Agreement.
SECTION 9.7 Governing Law. This Merger Agreement embodies the entire
agreement between the parties. There have been no agreements, representations or
warranties between the parties hereto other than those set forth and provided
herein. This transaction and the Merger Agreement shall be construed,
interpreted and enforce according to the laws of the State of Kansas regardless
of the laws that might otherwise govern under applicable principles of conflicts
of laws thereof.
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ARTICLE X
AMENDMENTS AND WAIVER
SECTION 10.1 Amendment. This Merger Agreement may be amended by
agreement of TFIN, TAC and PBI, by action taken by their respective boards of
directors or their respective officers at any time prior to the Effective Time
and either before or after the approval of this Merger Agreement by the
stockholders of PBI or TAC, except that no amendment shall be made, SUBSEQUENT
to the adoption of this Merger Agreement by the stockholders of the
corporations, that:
a. Alters or changes the method of calculation of cash or
stock which is to be transferred or paid to PBI stockholders hereunder;
b. Alters or changes any term of the articles of incorporation
of PBI;
c. Alters or changes any of the terms and conditions of this
Merger Agreement if such alteration or change would adversely affect the holders
of any class of stock or series thereof of either corporation.
This Merger Agreement may only be amended by a written instrument signed by an
authorized person on behalf of each of the corporations which are party to this
Merger Agreement.
SECTION 10.2 Waivers and Extensions. Any extensions or waiver of
compliance with any provisions of this Merger Agreement on the part of either
corporation party hereto shall be valid only if set forth in a written
instrument signed by an authorized person on behalf of each of the corporations.
SECTION 10.3 Notices. All notices and other communications hereunder
shall be deemed to have been given when delivered by hand of when deposited in
the mail, by certified or registered mail, postage prepaid or delivered by
recognized overnight courier, as follows:
TO: TEAM FINANCIAL, INC.
and
TEAM FINANCIAL ACQUISITION SUBSIDIARY INC.
0 Xxxx Xxxxxx
X.X. Xxx 000
Xxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxxxxxx,
Chairman and CEO
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29
With a copy to:
Xxxx X. Xxxxxxx, Esq.
P. O. Xxx 000
Xxxxx, XX 00000-0000
TO: POST BANCORP, INC.
POST BANCORP, INC.
C/O Xxxxxxxx X. Xxxxxxx
00000 Xxxxxxxx Xxxx Xxxxx
Xxxxxxxx Xxxxxxx, XX 00000
With a copy to:
Xxxxxx X. Xxxxxx, Esq.
000 X. Xxxxxxx Xxx. Xxxxx 000
Xxxxxxxx Xxxxxxx, XX 00000
SECTION 10.4 Counterparts. This Merger Agreement may be executed in any
number of counterparts, each of which shall be deemed an original, and all of
which when taken together shall constitute one and the same agreement.
IN WITNESS WHEREOF, this Merger Agreement has been signed by the
officers of TFIN, TAC and PBI pursuant to actions taken by their Boards of
Directors.
TEAM FINANCIAL, INC. POST BANCORP, INC.
/s/ Xxxxxx X. Xxxxxxxxxx /s/ Xxxxxxxx X. Xxxxxxx
------------------------------- -----------------------------------------
Xxxxxx X. Xxxxxxxxxx Xxxxxxxx X. Xxxxxxx
Chairman and CEO President
29
30
TEAM FINANCIAL ACQUISITION
SUBSIDIARY, INC.
/s/ Xxxxxx X. Xxxxxxxxxx
-------------------------------
Xxxxxx X. Xxxxxxxxxx
Chairman and CEO
30
31
CERTIFICATION OF CHAIRMEN/PRESIDENT AND SECRETARIES
This Merger Agreement, adopted by the directors of the respective TFIN,
TAC and PBI subject to approval by a vote of PBI and TAC Stockholders is hereby
adopted and made effective as of April 30, 2001 , pursuant to the actions taken
by the respective corporations, and in witness whereof, this Merger Agreement is
signed by the Chairman/President and Secretary of each of the corporations, and
the respective corporate seals have been affixed thereto.
TEAM FINANCIAL, INC. POST BANCORP, INC.
/s/ Xxxxxx X. Xxxxxxxxxx /s/ Xxxxxxxx X. Xxxxxxx
------------------------------ ------------------------------------
Xxxxxx X. Xxxxxxxxxx Xxxxxxxx X. Xxxxxxx
Chairman and CEO President
BY: /s/ Xxxx Xxxxxx BY: /s/ Xxxxxxxx X. Xxxxxxx
--------------------------- ---------------------------------
Xxxx Xxxxxx Xxxxxxxx X. Xxxxxxx
Secretary Secretary
TEAM FINANCIAL ACQUISITION
SUBSIDIARY, INC.
BY: /s/ Xxxxxx X. Xxxxxxxxxx
---------------------------
Xxxxxx X. Xxxxxxxxxx
Chairman and CEO
BY: /s/ Xxxx Xxxxxx
---------------------------
Xxxx Xxxxxx
Secretary
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32
STATE OF KANSAS, COUNTY OF MIAMI, SS:
Personally appeared before me, a Notary Public in and for the County
and State aforesaid, Xxxxxx X. Xxxxxxxxxx, Chairman and CEO, and Xxxx Xxxxxx,
Secretary, of Team Financial, Inc. who are personally known to me to be the same
persons who executed the foregoing instrument of writing, and they duly
acknowledged the execution of the same, and declare that they executed the
Merger Agreement on behalf of the corporation pursuant to the authority granted
them by their Board of Directors.
IN TESTIMONY WHEREOF, I hereunto subscribe my name and affix my
official seal this 30th day of April, 2001.
/s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Notary Public
My appointment expires: 0-00-00
XXXXX XX XXXXXX, XXXXXX XX XXXXX, SS:
Personally appeared before me, a Notary Public in and for the County
and State aforesaid, Xxxxxx X. Xxxxxxxxxx, Chairman and CEO, and Xxxx Xxxxxx,
Secretary, of Team Financial Acquisition Subsidiary, Inc. who are personally
known to me to be the same persons who executed the foregoing instrument of
writing, and they duly acknowledged the execution of the same, and declare that
they executed the Merger Agreement on behalf of the corporation pursuant to the
authority granted them by their Board of Directors.
IN TESTIMONY WHEREOF, I hereunto SUBSCRIBE my name and affix my
official seal this 30th day of April, 2001.
/s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Notary Public
My appointment expires: 9-15-03
32
33
STATE OF Arizona , COUNTY OF Maricopa , SS:
------------------ ----------------------
Personally appeared before me, a Notary Public in and for the County
and State aforesaid, Xxxxxxxx X. Xxxxxxx, President of Post Bancorp, Inc., who
is personally known to me to be the same person who executed the foregoing
instrument of writing, and she duly acknowledged the execution of the same, and
declare that she executed the Agreement on behalf of the corporation pursuant to
the authority granted her by the Board of Directors.
IN TESTIMONY WHEREOF, I hereunto SUBSCRIBE my name and affix my
official seal this 3rd day of May, 2001.
/s/ Xxxxx X. Xxxxxx
-----------------------------
Notary Public
My appointment expires: 00-00-00
XXXXX XX XXXXXXXX, XXXXXX XX XX XXXX, SS:
Personally appeared before me, a Notary Public in and for the County
and State aforesaid, Xxxxxxxx X. Xxxxxxx, Secretary, of Post Bancorp, Inc., who
is personally known to me to be the same person who executed the foregoing
instrument of writing, and he duly acknowledged the execution of the same, and
declare that he executed the Agreement on behalf of the corporation pursuant to
the authority granted him by the Board of Directors.
IN TESTIMONY WHEREOF, I hereunto SUBSCRIBE my name and affix my
official seal this 4th day of May, 2001.
/s/ Xxxxxx Xxx Xxxx
------------------------------
Notary Public
My appointment expires: 4-27-03
33
34
AMENDMENT TO ACQUISITION AGREEMENT AND PLAN OF MERGER
This Amendment to Acquisition Agreement and Plan of Merger
("Amendment") dated 25th day of July, 2001 is entered into by and among Post
Bancorp, Inc. ("PBI"), Team Financial, Inc. ("TFIN") and Team Financial
Acquisition Subsidiary, Inc. ( "TAC").
WHEREAS, PBI, TFIN and TAC entered into an Acquisition Agreement and
Plan of Merger dated as of April 30, 2001 (the "Merger Agreement") which was
approved by PBI stockholders on or about June 21, 2001; and
WHEREAS, the parties desire to amend the Merger Agreement;
WHEREAS, the Boards of Directors of TFIN, TAC and PBI have determined
that it is advisable that PBI be the surviving corporation of the merger
contemplated by the Merger Agreement; and
WHEREAS, in order to facilitate the change requiring PBI to be the
surviving corporation, a new corporation; to wit: Team Financial Acquisition
Subsidiary II, Inc. ("TAC II") shall be created by TFIN who shall be the sole
stockholder of TAC II and TAC II shall be merged into PBI resulting in TFIN
being the sole stockholder of both TAC and PBI following the merger; and
WHEREAS, the proposed Amendment is being made by the respective boards
of directors and officers prior to the Effective Time of the Merger Agreement
and subsequent to the approval of the Merger Agreement by the stockholders of
the party corporations; and
WHEREAS, the proposed Amendment does not: (a) alter or change the
method of calculation of cash or stock which is to be transferred or paid to PBI
stockholders hereunder; (b) alter or change any term of the articles of
incorporation of PBI; (c) alter or change any of the terms and conditions of the
Merger Agreement in any manner which will adversely affect the holders of any
class of stock or series thereof of any corporation.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein and in the Merger Agreement and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree to amend the Merger Agreement as follows:
1. A Kansas corporation, to wit: Team Financial Acquisition Subsidiary
II, Inc. ("TAC II") shall be formed by TFIN who shall be the sole stockholder
thereof. TAC II shall be made a party to the Merger Agreement and substituted
for TAC as appropriate. TAC shall not be the surviving corporation of the Merger
Agreement. PBI shall be the surviving corporation of the merger between PBI and
TAC II. Immediately, following the
1
35
merger of TAC II into PBI, TFIN shall be the sole stockholder of PBI; TAC II
shall cease to exist.
2. Consistent with the revisions provided for in paragraph 1 above,
"SECTION 1.1 of Article I THE MERGER PLAN in the Merger Agreement" shall be
deleted in its entirety and the following shall be substituted therefore:
"ARTICLE I
THE MERGER PLAN
SECTION 1.1 Plan of Merger. Subject to the terms and conditions of the
Merger Agreement, including the requisite governmental and stockholder
approvals; at the Effective Time as defined in Section 1.2, the acquisition of
TAC II by PBI will be carried out in the following manner:
a. TFIN, TAC, TAC II and PBI will each cooperate in the
preparation of such applications, statements or materials as may be required to
be furnished to the stockholders of PBI or filed or submitted to appropriate
governmental agencies in connection with the merger and with the solicitation of
the approval by the stockholders of PBI in respect thereof. TFIN shall create
and capitalize TAC II prior to the Effective Time as defined in Section 1.2 or
as otherwise required. TFIN, having created TAC II and as the sole stockholder
of TAC II, agrees to vote all of its shares of capital stock of TAC II in favor
of the Merger Agreement, and by execution of the amendments provided for herein
does hereby approve the Merger Agreement for and on behalf of TAC II. TFIN,
likewise, agrees to vote all of its shares of capital stock of TAC in favor of
the Merger Agreement as amended hereby.
b. At the Effective Time as defined in Section 1.2, TAC II shall
merge with and into PBI. As a result of the merger at the Effective Time, the
outstanding shares of the capital stock of TAC II shall be surrendered and
canceled as provided herein and the separate existence of TAC II shall cease.
PBI shall continue as the surviving corporation and TFIN shall be the sole
stockholder of PBI which shall continue to be governed by the Laws of the State
of Colorado. (PBI, in its capacity as the corporation surviving the merger
between TAC II and PBI, is sometimes hereinafter referred to as the "Surviving
Corporation") After the merger of TAC II into PBI, PBI will continue to own
one-hundred percent (100%) of the assets of PBI, including one- hundred percent
(100%) of the outstanding capital stock of BANK. As a result of the merger of
TAC II into PBI, current stockholders of PBI shall be entitled to receive cash
or TFIN common stock or a combination thereof as provided for herein and TFIN
shall be the sole remaining stockholder of PBI. As a result of the merger,
stockholders of PBI shall be entitled to receive cash or TFIN common stock or a
combination thereof as provided for herein from TAC II."
2. "SECTIONS 1.3 and 1.4 of Article I THE MERGER PLAN in the Merger
Agreement shall be deleted in its entirety and the following shall be
substituted therefore:
2
36
"SECTION 1.3 Surviving Corporation, Articles of Incorporation and
Bylaws. At the Effective Time, TAC II shall cease to exist and PBI will be the
Surviving Corporation. The Articles of Incorporation and Bylaws of PBI in effect
immediately prior to the Effective Time shall continue in full force and effect
unless otherwise amended or repealed."
"SECTION 1.4 Filing of Certificate of Merger. The merger of TAC II into
PBI shall be documented by the filing of appropriate Certificates of Merger at
Xxx Xxxx Xxxxxx, Xxxxx, Xxxxxx 00000; by filing said Certificates with the
Secretary of State of Kansas pursuant to K.S.A. 17-6701(c) and Secretary of
State of Colorado by the filings required by the laws of the State of Colorado
to document said merger of TAC II into PBI."
3. SECTIONS 1.5 , 1.6 and 1.7 of Article I THE MERGER PLAN in the
Merger Agreement" shall be deleted in its entirety and the following shall be
substituted therefore:
"SECTION 1.5 Officers and Directors. The directors and officers of PBI
and TAC II in office immediately prior to the Effective Time, together with such
additional persons as may thereafter be elected, shall serve as the directors
and officers of the surviving corporation from and after the Effective Time in
accordance with the Bylaws of the surviving corporation then existing or as
amended and restated as of the Effective Time and said directors and officers
shall continue to serve as the directors and officers of the surviving
corporation until the next annual meeting or until such time as their successors
have been elected and have qualified.
SECTION 1.6 Effect of Merger. At the Effective Time of the Merger of
PBI and TAC II, the surviving corporation (PBI) shall succeed to, without other
transfer, and shall possess and enjoy, all the rights, privileges, immunities,
powers and franchises, both of a public and a private nature, and be subject to
all the restrictions, disabilities and duties of TAC II and PBI. All property,
real, personal and mixed, and all debts due to either TAC II or PBI on whatever
account, for stock as well as for all other things in action or belonging to TAC
II and PBI, shall be vested in the surviving corporation, and all and every
other interest shall be thereafter as effectually the property of the surviving
corporation, as they were of TAC II and PBI, and the title to any real estate
vested by deed or otherwise in either TAC II or PBI shall not revert or be in
any way impaired by reason of the merger; provided, however, that all rights of
creditors and all liens upon any property of either TAC II or PBI shall be
preserved unimpaired, limited in lien to the property affected by such liens at
the Effective Time of the merger, and all debts, liabilities and duties of said
TAC II and PBI, respectively shall thenceforth attach to the surviving
corporation and may be enforced against it to the same extent as if said debts,
liabilities and duties has been incurred or contracted by the surviving
corporation. Any existing claim, action or proceeding, whether civil, criminal
or administrative by or against either TAC II or PBI may be prosecuted to
judgment or decree as if this merger had not taken place.
3
37
SECTION 1.7 Further Assurances. If at any time after the Effective
Time, the surviving corporation shall consider it advisable that any further
conveyances, agreements, documents, instruments or assurances of law or any
other actions or things are necessary or desirable to vest, perfect, confirm, or
record in the surviving corporation the title to any property or rights,
privileges, powers, or franchises of TAC II, PBI or BANK, the former Board of
Directors and officers of TAC II, shall and will be authorized to, execute and
deliver in the name on behalf of TAC II 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 the surviving
corporation, and otherwise to carry out the provisions of the Merger and any
amendments to the Merger Agreement."
4. All references in ARTICLES IV, V AND Vl to "TAC" shall be amended to
read "TAC II". The cash payment of Fifty Thousand Dollars and no/cents
($50,000.00) made by TAC pursuant to ARTICLE IX, SECTION 9.2 of the Merger
Agreement shall be treated as if the payment had been made by TAC II in the
distribution to PBI stockholders at the Effective Time. In conjunction with the
parties' obligations under ARTICLE IX, SECTION 9.4; TFIN, TAC and TAC II shall
make any revisions to any application filed in conjunction with the Merger
Agreement in a timely manner but no later than July 30, 2001.
5. Except as herein provided, the terms of the Merger Agreement shall
remain in full force and effect.
6. This Amendment is being made pursuant to the authority provided in
ARTICLE X, SECTION 10.1 of the Merger Agreement and may be executed in several
counterparts, and by the parties on separate counterparts, and all such
counterparts, when so executed and delivered, shall constitute but one and the
same agreement.
[Signature Page Follows]
4
38
IN WITNESS WHEREOF the parties have executed this Amendment as of the
date first written above.
TEAM FINANCIAL, INC. POST BANCORP, INC.
/s/ Xxxxxx X. Weatherie /s/ Xxxxxxxx X. Xxxxxxx
--------------------------------- ------------------------------------
Xxxxxx X. Xxxxxxxxxx Xxxxxxxx X. Xxxxxxx
Chairman and CEO President
BY: /s/ Xxxx Xxxxxx BY: /s/ Xxxxxxxx X. Xxxxxxx
----------------------------- --------------------------------
Xxxx Xxxxxx Xxxxxxxx X. Xxxxxxx
Secretary Secretary
TEAM FINANCIAL ACQUISITION
SUBSIDIARY, INC.
BY: /s/ Xxxxxx X. Xxxxxxxxxx
------------------------------
Xxxxxx X. Xxxxxxxxxx
Chairman and CEO
BY: /s/ Xxxx Xxxxxx
-----------------------------
Xxxx Xxxxxx
Secretary
5
39
STATE OF COLORADO, COUNTY OF XXXXXXX, SECTION:
Personally appeared before me, a Notary Public in and for the County
and State aforesaid, Xxxxxx X. Xxxxxxxxxx, Chairman and CEO, of Team Financial,
Inc. who is personally known to me to be the same person who executed the
foregoing instrument of writing, and he duly acknowledged the execution of the
same, and declare that he executed the Merger Agreement on behalf of the
corporation pursuant to the authority granted him by the Board of Directors.
IN TESTIMONY WHEREOF, I hereunto subscribe my name and affix my
official seal this 30th day of July, 2001.
/s/ Xxxxxx XxXxx
----------------------------
Notary Public
My appointment expires: 0-00-00
XXXXX XX XXXXXXXX, XXXXXX OF XXXXXXX, SECTION:
Personally appeared before me, a Notary Public in and for the County
and State aforesaid, Xxxxxx X. Xxxxxxxxxx, Chairman and CEO, of Team Financial
Acquisition Subsidiary, Inc. who is personally known to me to be the same person
who executed the foregoing instrument of writing, and he duly acknowledged the
execution of the same, and declare that he executed the Merger Agreement on
behalf of the corporation pursuant to the authority granted him by the Board of
Directors.
IN TESTIMONY WHEREOF, I hereunto SUBSCRIBE my name and affix my
official seal this 30th day of July, 2001.
/s/ Xxxxxx XxXxx
----------------------------
Notary Public
My appointment expires:2-24-04
6
40
STATE OF KANSAS, COUNTY OF MIAMI, SECTION:
Personally appeared before me, a Notary Public in and for the County
and State aforesaid, Xxxx Xxxxxx, Secretary, of Team Financial, Inc. who is
personally known to me to be the same person who executed the foregoing
instrument of writing, and she duly acknowledged the execution of the same, and
declare that she executed the Merger Agreement on behalf of the corporation
pursuant to the authority granted her by the Board of Directors.
IN TESTIMONY WHEREOF, I hereunto subscribe my name and affix my
official seal this 27th day of July, 2001.
/s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Notary Public
My appointment expires: 00-00-00
XXXXX XX XXXXX, XXXXXX XX XXXXX, XXXXXXX:
Personally appeared before me, a Notary Public in and for the County
and State aforesaid, Xxxx Xxxxxx, Secretary, of Team Financial Acquisition
Subsidiary, Inc. who is personally known to me to be the same person who
executed the foregoing instrument of writing, and she duly acknowledged the
execution of the same, and declare that she executed the Merger Agreement on
behalf of the corporation pursuant to the authority granted her by the Board of
Directors.
IN TESTIMONY WHEREOF, I hereunto SUBSCRIBE my name and affix my
official seal this 27th day of July, 2001.
/s/ Xxxxxxx X. Xxxxxx
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Notary Public
My appointment expires: 11-25-01
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STATE OF COLORADO, COUNTY OF EL PASO, SECTION:
Personally appeared before me, a Notary Public in and for the County
and State aforesaid, Xxxxxxxx X. Xxxxxxx, President of Post Bancorp, Inc., who
is personally known to me to be the same person who executed the foregoing
instrument of writing, and she duly acknowledged the execution of the same, and
declare that she executed the Agreement on behalf of the corporation pursuant to
the authority granted her by the Board of Directors.
IN TESTIMONY WHEREOF, I hereunto SUBSCRIBE my name and affix my
official seal this 25th day of July, 2001.
/s/ Xxxxx Xxxxxx
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Notary Public
My appointment expires: 00-00-00
XXXXX XX XXXXXXXX, XXXXXX XX XX XXXX, SECTION:
Personally appeared before me, a Notary Public in and for the County
and State aforesaid, Xxxxxxxx X. Xxxxxxx, Secretary, of Post Bancorp, Inc., who
is personally known to me to be the same person who executed the foregoing
instrument of writing, and he duly acknowledged the execution of the same, and
declare that he executed the Agreement on behalf of the corporation pursuant to
the authority granted him by the Board of Directors.
IN TESTIMONY WHEREOF, I hereunto subscribe my name and affix my
official seal this 25th day of July, 2001.
/s/ Xxxxx Xxxxxx
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Notary Public
My Appointment Expires: 03-30-05
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