EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER ("Agreement") dated as of March 31, 1999, by
and between Spectrum Bancorporation, Inc. ("Spectrum"), a Delaware corporation;
Decatur Corporation ("Decatur"), an Iowa corporation; and Rushmore Financial
Services, Inc. ("Rushmore"), a Nebraska corporation.
The boards of directors of the respective corporations deem it desirable
and in the best interests of their respective corporations and shareholders that
Spectrum and Rushmore merge into Decatur (the "Merger"), upon the terms and
subject to the conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, undertakings,
representations and warranties contained herein, the parties agree as follows:
I. THE MERGER
1.01 THE MERGER. Subject to the terms and conditions of this Agreement:
(a) Spectrum shall be merged with and into Decatur in accordance with
Section 252 of the General Corporation Act of the State of Delaware (the
"GCA") and in accordance with Sections 490.1101 and 490.1107 of the Iowa
Business Corporation Act, with Decatur being the surviving corporation
(sometimes referred to hereinafter as the "Surviving Corporation"), and the
separate existence of Spectrum shall cease. The Merger shall become
effective when a properly executed Certificate of Merger (together with any
other documents required by law to effectuate the Merger) shall be filed
and recorded in the office of the Secretary of State of Delaware and the
Secretary of State of Iowa, which filings and recordings shall be made as
soon as possible after the closing of the transactions contemplated by this
Agreement. When used in this Agreement, the term "Effective Time" shall
mean 10:00 o'clock p.m. Des Moines, Iowa, time on May 31, 1999.
(b) Rushmore, a wholly owned subsidiary of Spectrum, shall be merged
into Decatur in accordance with Sections 490.1101 and 490.1107 of the Iowa
Business Corporation Act and in accordance with Sections 21-20,128 and
21-20,134 of the Nebraska Business Corporation Act, with Decatur being the
surviving corporation (sometimes referred to hereafter as the "Surviving
Corporation"), and the separate existence of Rushmore shall cease. The
Merger shall become effective when a properly executed Certificate of
Merger (together with any other documents required by law to effectuate the
Merger) shall be filed and recorded in the office of the Secretary of State
of Nebraska and the Secretary of State of Iowa, which filings and
recordings shall be made as soon as possible after the closing of the
transactions contemplated by this Agreement. When used in this Agreement,
the term "Effective Time" shall mean 10:00 o'clock p.m. Des Moines, Iowa,
time on May 31, 1999.
(c) Pursuant to Section 490.1106 of the Iowa Business Corporation
Act, the title to all real estate and other property owned by Spectrum,
Rushmore and Decatur shall be vested in the Surviving Corporation without
reversion or impairment and the Surviving Corporation shall have all
liabilities of each corporation party to the merger.
(d) The Articles of Incorporation of Decatur is hereby amended to
become effective immediately after the Effective Time of the Merger so that
the Articles of Incorporation of the Surviving Corporation, until
thereafter amended in accordance with law, shall be in the form of Exhibit
A attached hereto and incorporated herein by this reference. At the
Effective Time of the Merger, the name of the Surviving Corporation will
thereby change to Spectrum Bancorporation, Inc.
(e) The By-Laws of the Surviving Corporation immediately after the
Effective Time shall be in the form of Exhibit B attached hereto and
incorporated herein by this reference, until thereafter amended in
accordance with law.
(f) The Surviving Corporation, Decatur Corporation, hereby agrees
that it may be served with process in the State of Delaware in any
proceeding for enforcement of any obligation of any constituent corporation
of the State of Delaware, as well as for enforcement of any obligation of
the Surviving Corporation resulting from the merger, including any suit or
other proceeding to enforce the right of any stockholders as determined in
appraisal proceedings pursuant to Section 262 of the General Corporation
Law of the State of Delaware, and further hereby irrevocably appoints the
Secretary of State of the State of Delaware as its agent to accept service
of process in any such suit or other proceedings. The address to which a
copy of such process shall be mailed by the Secretary of State is:
Spectrum Bancorporation, Inc., 0000 Xxxxxxx Xxxxx, Xxxxx, Xxxxxxxx 00000,
Attention: Xxxxx X. Xxxxxx, Chairman.
1.02 CONVERSION OF SHARES OF SPECTRUM STOCK. As of the Effective Time, by
virtue of the Merger without any action on the part of the holders thereof:
(a) Each share of Common Stock of Spectrum that is issued and
outstanding immediately prior to the Effective Time shall thereupon and
without any further action be converted into 12.2126 shares of fully paid
and nonassessable Common Stock, $1.00 par value per share, of the Surviving
Corporation.
(b) Each share of the 8% Non-Voting Cumulative Perpetual Preferred
stock of Decatur, $100 per value per share that is issued and outstanding
immediately prior to the Effective Time shall thereupon, without any
further action, be designated "Series 1" without further action.
(c) Each of the 8,000 shares of 10% Non Voting, Non Cumulative
Perpetual Preferred Stock (the "Preferred Stock") of Spectrum, $.01 par
value per share, that are issued and outstanding immediately prior to the
Effective Time and owned other than by Decatur Corporation shall thereupon
and without any further
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action be converted into one share of fully paid and nonassessable Series 2
Non Voting, Non Cumulative Perpetual Preferred Stock, $100 par value and
$100 redemption value per share, of the Surviving Corporation, with $10
per share dividends.
(d) Each of the 10,000 shares of Preferred Stock of Spectrum that are
issued and outstanding immediately prior to the Effective Time and owned by
Decatur Corporation shall thereupon and without any further action be
cancelled and cease to exist.
1.03 EXCHANGE OF SHARE CERTIFICATES.
(a) As soon as practicable after the Effective Time, the Surviving
Corporation shall deliver to each holder of record of a certificate or
certificates which immediately prior to the Effective Time represented
outstanding shares of Common Stock of Spectrum or Preferred Stock of
Spectrum (collectively, the "Spectrum Certificates") against delivery of
such Spectrum Certificates, duly executed for transfer in form satisfactory
to the Surviving Corporation, certificates representing that number of
shares of Common Stock or Series 2 Preferred Stock, as the case may be, of
Surviving Corporation into which the shares represented by the Spectrum
Certificates so surrendered shall have been converted pursuant to the
provisions of this Article I, and the Spectrum Certificates so surrendered
shall forthwith be cancelled.
(b) No dividends or other distributions declared with respect to
Common Stock or Preferred Stock of the Surviving Corporation issuable to
former holders of Common Stock or Preferred Stock of Spectrum pursuant to
the Merger and payable to the holders thereof after the Effective Date
shall be paid to any such holder unless and until such holder shall have
surrendered such holder's Spectrum Certificates and received in exchange
therefor certificates representing shares of Common Stock or Preferred
Stock, as the case may be, of the Surviving Corporation. After the
surrender and exchange of a Spectrum Certificate, the holder of
certificates for shares of Common Stock or Preferred Stock of the Surviving
Corporation into which the shares represented by the Spectrum Certificates
shall have been converted shall be entitled to receive any dividends or
other distributions, without any interest thereon, which theretofore became
payable with respect to the shares represented by such Spectrum
Certificates.
(c) After the Effective Time, there shall be no further registration
of transfers on the stock transfer books of the Surviving Corporation of
the shares represented by the Spectrum Certificates which were outstanding
immediately prior to the Effective Time. If, after the Effective Time,
Spectrum Certificates are presented to the Surviving Corporation for
registration or transfer, they shall be cancelled and exchanged for
certificates representing shares of Common Stock or
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Preferred Stock, as the case may be, of the Surviving Corporation, as
provided in this Article I.
1.04 BOARD OF DIRECTORS AND OFFICERS. At the Effective Time, the directors
and officers of Decatur immediately prior to the Effective Time shall become the
directors and officers, respectively, of the Surviving Corporation and shall
hold office in accordance with the Surviving Corporation's By-Laws and
applicable law.
1.05 SHARE CERTIFICATES OF RUSHMORE TO BE CANCELLED. At the Effective
Time, Spectrum shall surrender to the Surviving Corporation the certificate or
certificates representing the outstanding shares of Rushmore (the "Rushmore
Certificates"), duly executed in blank, and the Rushmore Certificates shall
forthwith be cancelled.
II. CONDITIONS, TERMINATION, AMENDMENT AND WAIVER
2.01 CONDITIONS. Consummation of the Merger and the transactions
contemplated hereby shall be subject to:
(a) Receipt of all regulatory approvals required by law and
expiration of all waiting periods imposed by law or order;
(b) Receipt of requisite approval of the shareholders of the parties
hereto; and
2.02 TERMINATION. This Agreement may be terminated at any time prior to
the Effective Time:
(a) By mutual consent of the Boards of Directors of the parties
hereto; or
(b) By any party hereto if any event shall have occurred which
renders the conditions set forth in Section 2.01 of this Agreement
incapable of fulfillment.
2.03 EFFECT OF TERMINATION. In the event of termination of this Agreement
as provided in Section 2.02 above, this Agreement shall forthwith become void
and there shall be no liability on the part of any party hereto or their
respective officers, directors or shareholders.
2.04 AMENDMENT. This Agreement may be amended by the parties hereto by
action taken by their respective Boards of Directors at any time, by an
instrument in writing signed on behalf of each of the parties hereto.
2.05 WAIVER. Any term or provision of this Agreement (other than
requirements for regulatory approvals) may be waived in writing at any time by
the party which is, or whose shareholders are, entitled to the benefits thereof.
2.06 This Agreement and Plan of Merger between the parties to the merger
has been approved, adopted, certified, executed and acknowledged by each of the
constituent corporations.
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III. GENERAL PROVISIONS
3.01 CLOSING. Unless this Agreement shall have been terminated and the
Merger herein contemplated shall have been abandoned, a closing (the "Closing")
will be held as soon as practicable after receipt of all regulatory approvals
and expiration of all waiting periods, at a location to be agreed upon by the
parties hereto. As soon as practicable after the Closing, the Certificate of
Merger will be filed for recording with the Secretary of State.
3.02 BINDING AGREEMENT. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be signed by its duly authorized officers, as of the date first above written.
SPECTRUM BANCORPORATION, INC.
By:
--------------------------------
Xxxxx X. Xxxxxx, President
Attest:
-----------------------------------
Secretary
DECATUR CORPORATION
By:
--------------------------------
Xxxxxx X. Xxxxxx, President
Attest:
-----------------------------------
Secretary
RUSHMORE FINANCIAL SERVICES, INC.
By:
--------------------------------
Xxxxx X. Xxxxxx, Chairman
Attest:
-----------------------------------
Secretary
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SECRETARY'S CERTIFICATE
I, Xxxx X. Xxxxxxx, Secretary of Spectrum Bancorporation, Inc., a
corporation organized and existing under the laws of the State of Delaware (the
"Corporation"), do hereby certify that the Agreement and Plan of Merger to which
this Certificate is attached, after having been duly approved by resolution of
the Board of Directors, was then submitted to the shareholders and adopted and
approved by the unanimous written consent of the shareholders by an affirmative
vote as follows:
Shares Votes
Designation of Group Outstanding Entitled to be Cast
-------------------- ----------- -------------------
Holders of Common Stock 5,000 5,000
Holders of Preferred Stock 18,000 18,000
The total number of votes cast for and against the plan by each voting
group entitled to vote separately on the plan is as follows:
Voting Group Votes For Votes Against
------------ --------- -------------
Holders of Preferred Stock 5,000 0
Holders of Common Stock 18,000 0
whereupon said Agreement and Plan of Merger was declared adopted as the act of
the Corporation.
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Xxxx X. Xxxxxxx, Secretary
STATE OF NEBRASKA )
) ss.
COUNTY OF XXXXXXX )
I, the undersigned, a Notary Public in and for said County and said State,
do hereby certify that Xxxx X. Xxxxxxx, whose name as Secretary of Spectrum
Bancorporation, Inc., is signed to the foregoing certificate, appeared before me
this date and executed the above certificate in his capacity as such officer
with full authority, and acknowledged such to be his voluntary act and deed as
such officer and the voluntary act and deed of the said Corporation and that the
facts stated herein are true.
WITNESS my hand and seal this ____ day of May 1999.
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Notary Public
My Commission Expires:
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