Exhibit 2.4
AGREEMENT AND PLAN OF MERGER
dated as of August 22, 1997
among
COMMUNITY FIRST BANKSHARES, INC.,
SUMMIT ACQUISITION CORPORATION
and
FIRST NATIONAL SUMMIT BANKSHARES, INC.
INDEX TO AGREEMENT AND PLAN OF MERGER
Page
AGREEMENT AND PLAN OF MERGER . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE 1
THE MERGER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Effective Time of the Merger. . . . . . . . . . . . . . . . . . . . . 1
1.2 Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.3 Effects of the Merger . . . . . . . . . . . . . . . . . . . . . . . . 2
1.4 Calculation of Summit Value . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE 2
EFFECT OF THE MERGER ON THE CAPITAL STOCK OF THE
CONSTITUENT CORPORATIONS; EXCHANGE OF CERTIFICATES . . . . . . . . . . . . 3
2.1 Effect on Capital Stock . . . . . . . . . . . . . . . . . . . . . . . 3
(a) Conversion of Preferred Stock. . . . . . . . . . . . . . . . . . 3
(b) Conversion of Common Stock . . . . . . . . . . . . . . . . . . . 3
(c) Exchange Rate. . . . . . . . . . . . . . . . . . . . . . . . . . 4
(d) Adjustments to Exchange Rate Based on CFB Trading Value. . . . . 4
(e) Adjustment based on Summit Value . . . . . . . . . . . . . . . . 5
(f) Shareholders' Right of Dissent . . . . . . . . . . . . . . . . . 5
2.2 Exchange of Certificates. . . . . . . . . . . . . . . . . . . . . . . 5
(a) Exchange Agent . . . . . . . . . . . . . . . . . . . . . . . . . 5
(b) Exchange Procedures. . . . . . . . . . . . . . . . . . . . . . . 5
(c) Distributions with Respect to Unexchanged Shares; Voting . . . . 6
(d) Transfers. . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
(e) Fractional Shares. . . . . . . . . . . . . . . . . . . . . . . . 6
(f) Termination of Exchange Fund . . . . . . . . . . . . . . . . . . 7
(g) Lost or Destroyed Shares . . . . . . . . . . . . . . . . . . . . 7
ARTICLE 3
REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . . . . . 7
3.1 Representations and Warranties of Summit. . . . . . . . . . . . . . . 7
(a) Bank Subsidiary Organization . . . . . . . . . . . . . . . . . . 7
(b) Summit Organization. . . . . . . . . . . . . . . . . . . . . . . 8
(c) Enforceability . . . . . . . . . . . . . . . . . . . . . . . . . 8
(d) Limitation of Bank's Powers. . . . . . . . . . . . . . . . . . . 8
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(e) Corporate Records. . . . . . . . . . . . . . . . . . . . . . . . 8
(f) Insured Status of . . . . . . . . . . . . . . . . . . . . . . . 8
(g) No Default; Creation of Liens. . . . . . . . . . . . . . . . . . 9
(h) Financial Statements . . . . . . . . . . . . . . . . . . . . . . 9
(i) Fidelity Insurance . . . . . . . . . . . . . . . . . . . . . . .10
(j) Employment Contracts . . . . . . . . . . . . . . . . . . . . . .10
(k) Employee Benefits. . . . . . . . . . . . . . . . . . . . . . . .10
(l) Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . .10
(m) Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
(n) Title to Property. . . . . . . . . . . . . . . . . . . . . . . .11
(o) Insurance Policies . . . . . . . . . . . . . . . . . . . . . . .11
(p) Bank Property. . . . . . . . . . . . . . . . . . . . . . . . . .11
(q) Conduct of Business. . . . . . . . . . . . . . . . . . . . . . .12
(r) Documentation. . . . . . . . . . . . . . . . . . . . . . . . . .12
(s) Leases and Contracts . . . . . . . . . . . . . . . . . . . . . .12
(t) Shareholder Lists. . . . . . . . . . . . . . . . . . . . . . . .12
(u) Bank Principals. . . . . . . . . . . . . . . . . . . . . . . . .13
(v) Information Supplied . . . . . . . . . . . . . . . . . . . . . .13
(w) Agreements with Bank Regulators. . . . . . . . . . . . . . . . .13
3.2 Representations and Warranties of CFB . . . . . . . . . . . . . . . .13
(a) CFB Organization . . . . . . . . . . . . . . . . . . . . . . . .14
(b) Reports. . . . . . . . . . . . . . . . . . . . . . . . . . . . .14
(c) Enforceability . . . . . . . . . . . . . . . . . . . . . . . . .14
(d) No Default; Creation of Liens. . . . . . . . . . . . . . . . . .14
(e) Information Supplied . . . . . . . . . . . . . . . . . . . . . .15
(f) No Plan to Transfer Assets . . . . . . . . . . . . . . . . . . .15
(g) Future Filing Requirements . . . . . . . . . . . . . . . . . . .15
ARTICLE 4
COVENANTS OF SUMMIT AND CFB. . . . . . . . . . . . . . . . . . . . . . . .15
4.1 Covenants of Summit . . . . . . . . . . . . . . . . . . . . . . . . .15
(a) Ordinary Course. . . . . . . . . . . . . . . . . . . . . . . . .15
(b) Shareholder Meeting. . . . . . . . . . . . . . . . . . . . . . .16
(c) Registration Statement . . . . . . . . . . . . . . . . . . . . .16
(d) Confidential Information . . . . . . . . . . . . . . . . . . . .16
(e) Benefit Plans. . . . . . . . . . . . . . . . . . . . . . . . . .16
(f) No Solicitations . . . . . . . . . . . . . . . . . . . . . . . .17
(g) No Acquisitions. . . . . . . . . . . . . . . . . . . . . . . . .17
(h) Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . .18
(i) Pooling Restrictions . . . . . . . . . . . . . . . . . . . . . .18
(j) Financial Statements . . . . . . . . . . . . . . . . . . . . . .18
(k) Additional Covenants of Summit . . . . . . . . . . . . . . . . .18
4.2 Covenants of CFB. . . . . . . . . . . . . . . . . . . . . . . . . . .21
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(a) Ordinary Course. . . . . . . . . . . . . . . . . . . . . . . . .21
(b) Application. . . . . . . . . . . . . . . . . . . . . . . . . . .21
(c) Cooperation. . . . . . . . . . . . . . . . . . . . . . . . . . .21
(d) Registration Statement . . . . . . . . . . . . . . . . . . . . .21
(e) Listing. . . . . . . . . . . . . . . . . . . . . . . . . . . . .22
(f) Shares to be Issued. . . . . . . . . . . . . . . . . . . . . . .22
(g) Blue Sky . . . . . . . . . . . . . . . . . . . . . . . . . . . .22
(h) Confidential Information . . . . . . . . . . . . . . . . . . . .22
(i) Registration Statement . . . . . . . . . . . . . . . . . . . . .23
4.3 Covenants of Summit and CFB . . . . . . . . . . . . . . . . . . . . .23
(a) Governing Documents. . . . . . . . . . . . . . . . . . . . . . .23
(b) Other Actions. . . . . . . . . . . . . . . . . . . . . . . . . .23
(c) Advice of Changes; Government Filings. . . . . . . . . . . . . .23
(d) Title of Property. . . . . . . . . . . . . . . . . . . . . . . .24
(e) Environmental Assessment . . . . . . . . . . . . . . . . . . . .24
ARTICLE 5
ADDITIONAL AGREEMENTS. . . . . . . . . . . . . . . . . . . . . . . . . . .24
5.1 Regulatory Matters. . . . . . . . . . . . . . . . . . . . . . . . . .24
5.2 Letters of Summit Officers. . . . . . . . . . . . . . . . . . . . . .25
5.3 Access to Information . . . . . . . . . . . . . . . . . . . . . . . .25
5.4 Affiliates. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26
5.5 Employee Benefit Plans. . . . . . . . . . . . . . . . . . . . . . . .26
5.6 Expenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26
5.7 Additional Agreements; Best Efforts . . . . . . . . . . . . . . . . .26
ARTICLE 6
CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . . . . . . . . . .27
6.1 Conditions to Each Party's Obligation to Effect the Merger. . . . . .27
(a) Stockholder Approval . . . . . . . . . . . . . . . . . . . . . .27
(b) NASDAQ Listing . . . . . . . . . . . . . . . . . . . . . . . . .27
(c) Other Approvals. . . . . . . . . . . . . . . . . . . . . . . . .27
(d) Registration Statement . . . . . . . . . . . . . . . . . . . . .27
(e) No Injunctions or Restraints; Illegality . . . . . . . . . . . .27
(f) No Unduly Burdensome Condition . . . . . . . . . . . . . . . . .27
6.2 Conditions to Obligations of CFB. . . . . . . . . . . . . . . . . . .28
(a) Representations and Warranties . . . . . . . . . . . . . . . . .28
(b) Performance of Obligations of Summit . . . . . . . . . . . . . .28
(d) Legal Opinion. . . . . . . . . . . . . . . . . . . . . . . . . .28
6.3 Conditions to Obligations of Summit . . . . . . . . . . . . . . . . .28
(a) Representations and Warranties . . . . . . . . . . . . . . . . .28
(b) Performance of Obligations of CFB. . . . . . . . . . . . . . . .29
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(c) Consents Under Agreements. . . . . . . . . . . . . . . . . . . .29
(d) Tax Opinion. . . . . . . . . . . . . . . . . . . . . . . . . . .29
(e) Legal Opinion. . . . . . . . . . . . . . . . . . . . . . . . . .29
ARTICLE 7
TERMINATION AND AMENDMENT. . . . . . . . . . . . . . . . . . . . . . . . .29
7.1 Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . .29
7.2 Effect of Termination . . . . . . . . . . . . . . . . . . . . . . . .30
7.3 Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30
7.4 Extension; Waiver . . . . . . . . . . . . . . . . . . . . . . . . . .30
ARTICLE 8
GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . .31
8.2 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31
8.3 Interpretation. . . . . . . . . . . . . . . . . . . . . . . . . . . .31
8.4 Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . . . .32
8.5 Entire Agreement: Third Party Beneficiaries; Rights of Ownership. . .32
8.6 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . .32
8.7 Publicity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .32
8.8 Assignment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .32
8.9 Enforcement of Agreement. . . . . . . . . . . . . . . . . . . . . . .32
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AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of August 22, 1997 (the "Agreement"),
by and among Community First Bankshares, Inc., a Delaware corporation ("CFB"),
Summit Acquisition Corporation, a Colorado corporation ("Acquisition
Subsidiary") and First National Summit Bankshares, Inc., a Colorado corporation
("Summit").
WHEREAS, the Boards of Directors of CFB, Acquisition Subsidiary and
Summit have approved, and deem it advisable and in the best interests of
their respective companies and their stockholders to consummate the business
combination transaction provided for herein in which Acquisition Subsidiary
will be merged with and into Summit and Summit thereby become a wholly-owned
subsidiary of CFB (the "Merger");
WHEREAS, CFB and Summit desire to make certain representations,
warranties, covenants and agreements in connection with the Merger and also
to prescribe various conditions to the Merger; and
WHEREAS, for Federal income tax purposes, it is intended that the Merger
shall qualify as a reorganization under the provisions of Section 368 of the
Internal Revenue Code of 1986, as amended (the "Code").
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth herein, and
intending to be legally bound hereby, the parties hereto agree as follows:
ARTICLE 1
THE MERGER
1.1 EFFECTIVE TIME OF THE MERGER. Subject to the provisions of this
Agreement, articles of merger (the "Articles of Merger") in substantially the
form as attached hereto as EXHIBIT A shall be duly prepared, executed and
acknowledged by CFB and Summit and thereafter delivered for filing to the
Secretary of State of the State of Colorado, as provided in the Colorado
Business Corporation Act (the "Colorado Act"), on the Closing Date (as
defined in Section 1.2). The Merger shall become effective upon the filing
of the Articles of Merger with the Secretary of State of Colorado or at such
other time as CFB and Summit may agree in writing to provide in the Articles
of Merger (the "Effective Time"). Notwithstanding the immediately preceding
sentence, however, the parties intend that the effective date and time of the
Closing, as defined in Section 1.2 below, for both Summit and tax reporting
purposes, shall be as of the close of business on the Closing Date.
1.2 CLOSING. Subject to the terms and conditions hereof, the closing of
the Merger (the "Closing") will take place after the satisfaction or waiver
(subject to applicable law) of the latest to occur of the conditions set
forth in Article 6 hereof (the "Closing Date"), at the offices of
Xxxxxxxxx & Xxxxxx, in Minneapolis, Minnesota, unless another time, date or
place is agreed to in writing by the parties hereto. Each of the parties
agrees to use its best efforts to cause the Merger to be consummated within
thirty (30) business days after the satisfaction or waiver of the conditions
set forth in Article 6 of this Agreement.
1.3 EFFECTS OF THE MERGER.
(a) At the Effective Time: (i) the separate existence of the
Acquisition Subsidiary shall cease and the Acquisition Subsidiary shall be
merged with and into Summit; (ii) the Articles of Incorporation of the
Acquisition Subsidiary, as in effect immediately prior to the Effective Time
shall be the Articles of Incorporation of the Surviving Corporation until
duly amended in accordance with applicable law; (iii) the By-laws of the
Acquisition Subsidiary, as in effect immediately prior to the Effective Time
shall be the By-laws of the Surviving Corporation until amended in accordance
with applicable law; (iv) CFB, as the holder of all of the outstanding common
stock of the Acquisition Subsidiary, shall continue as sole shareholder of
the Surviving Corporation; (v) the holders of certificates representing
shares of Summit Preferred Stock (as defined in Section 2.1(a) below) shall
cease to have any rights as shareholders of Summit, except such rights, if
any, as they may have pursuant to Article 113 of the Colorado Act, and their
sole right shall be the right to receive in cancellation thereof, the sum of
One Hundred and no/100 Dollars ($100.00) per share, plus accrued but unpaid
dividends thereon to the Effective Time; and (vi) the holders of certificates
representing shares of Summit Common Stock (as defined in Section 2.1(b)
below) shall cease to have any rights as shareholders of Summit, except such
rights, if any, as they may have pursuant to Article 113 of the Colorado Act,
and their sole right shall be the right to receive (A) the number of whole
shares of CFB Common Stock (as defined in Section 2.1(b) below) into which
their shares of Summit Common Stock have been converted in the Merger as
provided herein (together with any dividend payments with respect thereto, to
the extent provided in Section 2.2(c) below), and (B) the cash value of any
fraction of a share of CFB Common Stock into which their shares of Summit
Common Stock have been converted as provided herein.
(b) As used in this Agreement, the term "Constituent Corporations"
shall mean Summit and the Acquisition Subsidiary. The term "Surviving
Corporation" shall mean Summit, after giving effect to the Merger.
1.4 CALCULATION OF SUMMIT VALUE. Subject to the provisions of Section
4.1(k), as of the last day of the month immediately preceding the Effective
Time (the "Determination Date"), Summit shall prepare a consolidated balance
sheet of Summit in accordance with generally accepted accounting principles
("GAAP"), but excluding the effects of any adjustments otherwise required by
FASB 115 and excluding any footnotes that might be required to be included
with such financial statements (the "Determination Date Balance Sheet"),
together with a consolidated statement of income (the "Interim Income") for
the period from March 31, 1997 to the Determination Date (the "Interim Income
Statement"), such consolidated statement of income shall be prepared in
accordance with GAAP, but excluding the effects of any adjustments otherwise
required by FASB 115 and excluding any footnotes that might be required to be
2
included with such statements (the "Determination Date Balance Sheet and
Interim Income Statement are herein referred to as the "Determination Date
Financial Statements"). The Determination Date Financial Statements shall be
delivered to CFB as soon as they are prepared so that CFB and its accountants
may review and confirm their accuracy. For purposes of this Agreement, the
"Summit Value" shall be equal to the total consolidated assets of Summit
minus the sum of (i) the total consolidated liabilities of Summit, and (ii)
the value of the Summit Preferred Stock, including accrued dividends thereon
to the Closing Date, all as reflected on the Determination Date Balance
Sheet, prepared in accordance with this Section 1.4. Total consolidated
liabilities of Summit shall include, without limitation, provision for taxes
and the expenses of the preparation of the final tax return for Summit.
ARTICLE 2
EFFECT OF THE MERGER ON THE CAPITAL STOCK OF THE
CONSTITUENT CORPORATIONS; EXCHANGE OF CERTIFICATES
2.1 EFFECT ON CAPITAL STOCK.
(a) CONVERSION OF PREFERRED STOCK. At the Effective Time, by
virtue of the Merger and without any action on the part of any holder of
shares of preferred stock, $100.00 par value, of Summit ("Summit Preferred
Stock"), each issued and outstanding share of Summit Preferred Stock, other
than shares of Summit Preferred Stock held by persons who have taken all
steps required to perfect their right to be paid the fair value of such
shares under Article 113 of the Colorado Act, shall be converted into the
right to receive in cancellation and exchange therefor the sum of One Hundred
and no/100 ($100.00), plus accrued but unpaid dividends thereon to the
Effective Time. All such shares of Summit Preferred Stock shall no longer be
outstanding and shall automatically be canceled and retired and shall cease
to exist. Each Summit shareholder's certificate or certificates previously
representing shares of Summit Preferred Stock (each a "Summit Preferred
Certificate") shall be aggregated (if a single stockholder holds more than
one Summit Preferred Certificate) and exchanged for the foregoing
consideration upon the surrender of such Summit Preferred Certificates in
accordance with Section 2.2, without any interest thereon.
(b) CONVERSION OF COMMON STOCK. At the Effective Time, by virtue
of the Merger and without any action on the part of any holder of shares of
common stock, $.09 par value, of Summit ("Summit Common Stock"), subject to
Section 2.2(e), each issued and outstanding share of Summit Common Stock,
other than shares of Summit Common Stock held by persons who have taken all
steps required to perfect their right to be paid the fair value of such
shares under Article 113 of the Colorado Act, shall be converted into shares
of validly issued, fully paid and nonassessable shares of common stock of
CFB, $.01 par value ("CFB Common Stock"). All such shares of Summit Common
Stock shall no longer be outstanding and shall automatically be canceled and
retired and shall cease to exist. Each Summit shareholder's certificate or
certificates previously representing shares of Summit Common Stock (each a
"Summit Common Certificate") shall be aggregated (if a single stockholder
holds more than one Summit Common
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Certificate) and exchanged for a certificate representing whole shares of CFB
Common Stock and cash in lieu of any fractional share issued in consideration
therefor upon the surrender of such Summit Common Certificates in accordance
with Section 2.2, without any interest thereon. In the event that,
subsequent to the date of this Agreement but prior to the Effective Time, the
outstanding shares of CFB Common Stock shall have been increased, decreased,
changed into or exchanged for a different number or kind of shares or
securities through a reorganization, recapitalization, reclassification,
stock dividend, stock split, reverse stock split, or other similar change in
CFB's capitalization, then an appropriate and proportionate adjustment shall
be made to the "Exchange Rate," as hereinafter defined, so that the number of
shares of CFB Common Stock into which a share of Summit Common Stock shall be
converted will equal the number of shares of CFB Common Stock that the
holders of shares of Summit Common Stock would have received pursuant to such
reorganization, recapitalization, reclassification, stock dividend, stock
split, reverse stock split or other similar change had the record date
therefor been immediately following the Closing Date.
(c) EXCHANGE RATE. Subject to the adjustments provided in Section
2.1(b), 2.1(d) and 2.1(e) hereof, all of the issued and outstanding shares of
Summit Common Stock and any outstanding options, warrants or other rights to
Summit Common Stock shall be exchanged for Four Hundred Thousand (400,000)
shares of CFB Common Stock (the aforementioned exchange rate is hereinafter
referred to as the "Exchange Rate"). On or before the Effective Time, all
stock options and other rights with respect to Summit Common Stock shall be
(i) accelerated and exercised by the holder thereof, in accordance with the
terms of the stock option plan or agreement, or (ii) released and terminated
by written acknowledgment and agreement by the holder thereof, obtained by
Summit less than ten (10) business days prior to the Closing Date.
(d) ADJUSTMENTS TO EXCHANGE RATE BASED ON CFB TRADING VALUE.
Notwithstanding anything to the contrary in this Article 2, the Exchange Rate
shall be subject to modification as set forth below:
(i) If the CFB Trading Value is less than or equal to $39.50 per
share, then the Exchange Rate shall be as set forth in Section 2.1(c),
above;
(ii) If the CFB Trading Value is greater than $39.50 per share,
then the Exchange Rate shall be reduced so that the product of the CFB
Trading Value multiplied by the Exchange Rate shall be $15,800,000.
For purposes of this Agreement, the "CFB Trading Value" of the CFB Common
Stock shall be the average of the per share closing price for the CFB Common
Stock as reported by the NASDAQ National Market System for the 20 trading
days ending at the end of the fourth trading day immediately preceding the
Closing Date (as appropriately and proportionately adjusted in the event
that, between the date hereof and the termination of such twenty trading day
period, shares of CFB Common Stock shall be changed into a different number
of shares or a different class of shares by reason of any reclassification,
recapitalization, split-up, combination, exchange of shares or readjustment
or stock dividend). Calculations will be rounded to three decimal places.
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Any fractional share of CFB Common Stock will be paid in cash in accordance
with Section 2.2(e). Illustrations of the above Exchange Rate calculations
are attached as EXHIBIT 2.1(d) hereto and incorporated herein by reference.
(e) ADJUSTMENT BASED ON SUMMIT VALUE. In the event that the Summit
Value, calculated in accordance with Section 1.4, above, shall be less than
$7,000,000, then the Exchange Rate determined in accordance with Section
2.1(c)-(d) shall be subject to reduction. The amount of reduction shall be
determined by (i) multiplying the difference between the Summit Value and
$7,000,000 by 2.0857 (which is the ratio of the minimum transaction value
divided by the minimum equity requirement) and then (ii) dividing the
foregoing product by $36.50 (which is the minimum CFB Trading Value).
(f) SHAREHOLDERS' RIGHT OF DISSENT. Any holder of shares of Summit
Stock who does not vote in favor of the Merger at the meeting of shareholders
of Summit and has given notice in writing to the presiding officer prior to
the Merger vote that he or she intends to demand payment for his or her
shares of Summit Stock if the Merger is effectuated, shall be entitled to
receive the value of the Summit Stock so held by him or her in accordance
with Article 113 of the Colorado Act and his or her shares of Summit Stock
shall be deemed subject to the provisions of Article 113 of the Colorado Act.
2.2 EXCHANGE OF CERTIFICATES.
(a) EXCHANGE AGENT. At the Closing, CFB shall deposit with Norwest
Bank Minnesota, N.A. or such other bank or trust company acceptable to the
parties (the "Exchange Agent"), for the benefit of the holders of shares of
Summit Stock, (i) cash to be paid pursuant to Section 2.1(a) in exchange for
the outstanding shares of Summit Preferred Stock and (ii) certificates dated
the Closing Date representing the shares of CFB Common Stock and the cash to
be paid in lieu of fractional shares to be issued and paid pursuant to
Section 2.1(b) in exchange for the outstanding shares of Summit Common Stock.
(Such cash and certificates for shares of CFB Common Stock together with any
dividends or distributions with respect thereto, are hereinafter referred to
as the "Exchange Fund.")
(b) EXCHANGE PROCEDURES. Within five (5) business days after the
Closing Date, CFB shall cause the Exchange Agent to mail to each holder of
record of a Summit Certificate or Summit Certificates (i) a letter of
transmittal which shall specify that delivery shall be effective, and risk of
loss and title to the Summit Certificate(s) shall pass, only upon delivery of
the Summit Certificate(s) to the Exchange Agent and which shall be in such
form and have such other provisions as CFB and Summit may reasonably specify
not later than five business days before the Closing Date and (ii)
instructions for use in effecting the surrender of the Summit Common and
Preferred Certificate(s) in exchange for cash, in the case of Summit
Preferred Certificates, or for a certificate representing shares of CFB
Common Stock and the cash to be paid in lieu of any fractional share, in the
case of Summit Common Certificates. Upon surrender of a shareholder's Summit
Preferred Certificate or Summit Preferred Certificates for cancellation to
the Exchange Agent together with such letter of transmittal, duly executed,
the holder of such
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Summit Preferred Certificate(s) shall be entitled to receive in exchange
therefor a check representing the amount of the cash to be paid for such
Summit Preferred Stock and unpaid dividends and distributions, if any, which
such holder has the right to receive in respect of the Summit Preferred
Certificate(s) surrendered, as provided in Section 2.2(c) below, and the
Summit Certificate(s) so surrendered shall forthwith be canceled. Upon
surrender of a shareholder's Summit Common Certificate or Summit Common
Certificates for cancellation to the Exchange Agent together with such letter
of transmittal, duly executed, the holder of such Summit Common
Certificate(s) shall be entitled to receive in exchange therefor (1) a
certificate representing the number of whole shares of CFB Common Stock and
(2) a check representing the amount of the cash to be paid in lieu of a
fractional share, if any, and unpaid dividends and distributions, if any,
which such holder has the right to receive in respect of the Summit Common
Certificate(s) surrendered, as provided in Section 2.2(c) below, and the
Summit Common Certificate(s) so surrendered shall forthwith be canceled. No
interest will be paid on the cash in lieu of fractional shares and unpaid
dividends and distributions, if any, payable to holders of Summit Common
Certificates. In the event of a transfer of ownership of Summit Common Stock
which is not registered in the transfer records of Summit, a CFB Certificate
representing the proper number of shares of CFB Common Stock, and/or a check
for the cash to be paid, may be issued to such a transferee if the Summit
Common Certificate representing such Summit Stock is presented to the
Exchange Agent, accompanied by all documents required to evidence and effect
such transfer. Any applicable stock transfer taxes shall be paid by CFB.
(c) DISTRIBUTIONS WITH RESPECT TO UNEXCHANGED SHARES; VOTING. The
Exchange Agent shall receive and hold, for distribution without interest to the
first record holder of the certificate or certificates representing shares of
Summit Common Stock, all dividends and other distributions paid on shares of CFB
Common Stock held in the Exchange Agent's name as agent. Holders of
unsurrendered Summit Common Certificates shall not be entitled to vote after the
Closing Date at any meeting of CFB shareholders until they have exchanged their
Summit Common Certificates.
(d) TRANSFERS. After the Effective Time, there shall be no transfers
on the stock transfer books of Summit of the shares of Summit Stock which were
outstanding immediately prior to the Effective Time. If, after the Effective
Time, Summit Certificates are presented to the Surviving Corporation, they shall
be canceled and exchanged for the shares of CFB Common Stock and/or cash, in an
amount as determined in accordance with the provisions of Sections 2.1(a),
2.1(b) and this Section 2.2, deliverable in respect thereof pursuant to this
Agreement. Summit Certificates surrendered for exchange by any person
constituting an "affiliate" of Summit for purposes of Rule 145(c) under the
Securities Act of 1933, as amended (the "Securities Act"), shall not be
exchanged until CFB has received a written agreement from such person as
provided in Section 5.5.
(e) FRACTIONAL SHARES. No fractional shares of CFB Common Stock
shall be issued pursuant hereto. In lieu of the issuance of any fractional
share, cash adjustments will be paid to holders in respect of any fractional
share of CFB Common Stock that would otherwise be issuable, and the amount of
such cash adjustment shall be equal to such fractional proportion of
6
the Trading Value of a share of CFB Common Stock. For purposes of
calculating fractional shares, a holder of Summit Common Stock with more than
one Summit Certificate shall receive cash only for the fractional share
remaining after aggregating all of its, his or her Summit Common Stock to be
exchanged.
(f) TERMINATION OF EXCHANGE FUND. Any portion of the Exchange Fund
(including the proceeds of any investments thereof and any CFB Common Stock)
that remains unclaimed by the shareholders of Summit for twelve months after the
Closing Date shall be paid to CFB. The Exchange Agent shall give notice to
shareholders of Summit for whom Exchange Funds are held thirty (30) days prior
to the date upon which the Exchange Funds shall be paid to CFB. Any
shareholders of Summit who have not theretofore complied with this Article 2
shall thereafter look only to CFB for payment of their shares, and cash in an
amount as determined in accordance with the provisions of Section 2.1(a),
Section 2.1(b) and this Section 2.2, without any interest thereon.
Notwithstanding the foregoing, none of CFB, the Exchange Agent nor any other
person shall be liable to any former holder of shares of Summit Stock for any
amount properly delivered to a public official pursuant to applicable abandoned
property, escheat or similar laws.
(g) LOST OR DESTROYED SHARES. In the event any Summit Certificate
shall have been lost, stolen or destroyed, upon the making of an affidavit of
that fact by the person claiming such Summit Certificate to be lost, stolen or
destroyed and, if required by the Exchange Agent, the posting by such person of
a bond in such amount as CFB may direct as indemnity against any claim that may
be made against it with respect to such Summit Certificate, the Exchange Agent
will issue in exchange for such lost, stolen or destroyed Summit Certificate the
shares of CFB Common Stock, and/or cash in an amount as determined in accordance
with the provisions of Sections 2.1(a), 2.1(b) and this Section 2.2, deliverable
in respect thereof pursuant to this Agreement.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
3.1 REPRESENTATIONS AND WARRANTIES OF SUMMIT. In order to induce CFB to
enter into this Agreement, Summit represents and warrants to CFB, in all
material respects, as of the date of this Agreement (except as otherwise
expressly provided), as follows, except as disclosed on the attached EXHIBIT B
(the "Summit Disclosure Schedule") and the schedules thereunder which are
numbered to correspond to the representations set forth below:
(a) BANK SUBSIDIARY ORGANIZATION. First National Summit Bank (the
"Bank") is a national banking association duly organized and validly existing
and in good standing under the laws of the United States with an authorized
capital of $250,000, consisting of 2,500 shares of one class of common stock,
par value $100.00 per share. All of the shares of stock of the Bank which are
presently issued and outstanding, have been validly issued, fully paid and,
subject to 12 U.S.C. Section 55 (1982), non-assessable, and except for those
options described in Section 3.1(a) of the Summit Disclosure Schedule, there are
no stock options or other commitments outstanding
7
pursuant to which the Bank is obligated to issue additional shares of such
stock or purchase or redeem any outstanding shares of such stock.
(b) SUMMIT ORGANIZATION. Summit is a corporation duly organized,
validly existing and in good standing under the laws of the State of Colorado,
with authorized capital stock consisting of 100,000 shares of preferred stock,
$100.00 par value per share, of which 10,750 shares are issued and outstanding,
and 2,000,000 shares of common stock, $.09 par value per share, of which 953,708
shares are issued and outstanding. Summit has all requisite power, authority,
charters, licenses and franchises necessary or required by law to carry on the
business activity in which it is presently engaged, except where the failure to
have any such power, authority, charters, licenses or franchises would not
reasonably be expected to have a material adverse effect on Summit. Summit is
registered as a company under Section 1841 of Title 12, United States Code, as
amended (the "Bank Holding Company Act"). Summit has no direct or indirect
subsidiaries except the Bank and is not a partner to any partnership. Except as
set forth in Section 3.1(b) of the Summit Disclosure Schedule, Summit owns all
of the shares of Bank stock, free and clear of any liens or encumbrances.
(c) ENFORCEABILITY. Subject to the required approval of the Merger
by the shareholders of Summit, Summit has the corporate power and authority to
enter into this Agreement and to carry out its obligations hereunder. The
execution, delivery and performance of this Agreement by Summit and the
consummation of the transactions contemplated hereby have been duly authorized
by the Board of Directors of Summit. Subject to approval by the Summit
shareholders and of government agencies and other governing bodies having
regulatory authority over Summit or the Bank as may be required by statute or
regulation, this Agreement constitutes a valid and binding obligation of Summit,
enforceable against it in accordance with its terms.
(d) LIMITATION OF BANK'S POWERS. Except as set forth in Section
3.1(d) of the Summit Disclosure Schedule, there are no proceedings or actions
pending by any federal or state regulatory body having authority over the Bank
to limit or impair any of the Bank's powers, rights and privileges, to terminate
deposit insurance or to dissolve the Bank.
(e) CORPORATE RECORDS. Summit's Articles of Incorporation and
Bylaws, and the Bank's Articles of Association and Bylaws are each unchanged
from the form in which they were delivered to CFB on or before the date of this
Agreement. The minute books of Summit and the Bank contain reasonably complete
and accurate records of all meetings and corporate actions of each of their
respective shareholders and Boards of Directors.
(f) INSURED STATUS OF BANK. The Bank is an insured bank under the
provisions of Chapter 16 of Title 12, United States Code Annotated, known as
the "Federal Deposit Insurance Act," and no act or default on the part of any
of the Bank exists that could reasonably be expected to have a material
adverse effect on its status as an insured bank thereunder. All of the
Bank's deposits are insured by the Bank Insurance Fund or the Savings
Association Insurance Fund of the FDIC as set forth in Section 3.1(f) of the
Summit Disclosure Schedule. The Bank
8
possesses and is in full compliance with all licenses, franchises, permits
and other governmental authorizations that are legally required to hold its
properties or conduct its business, except where the failure to possess any
such licenses, franchises, permits or other governmental authorizations would
not reasonably be expected to have a material adverse effect on Summit.
(g) NO DEFAULT; CREATION OF LIENS. Neither the execution and
delivery of this Agreement, nor the consummation of the Merger will (i) conflict
with, result in the breach of, constitute a default under or accelerate the
performance provided by the terms of (A) any judgment, order or decree of any
court or other governmental agency to which Summit or the Bank may be subject,
(B) any of the "Material Contracts," as hereinafter defined, or (C) the Articles
of Incorporation/Association or Bylaws of Summit or the Bank, or (ii) constitute
an event that, with the lapse of time or action by a third party, would result
in a default under any of the foregoing or result in the creation of any lien,
charge or encumbrance upon the Summit Common Stock or any of the Bank's capital
stock.
(h) FINANCIAL STATEMENTS. The following financial statements of the
Bank and Summit (the "Financial Statements") have been delivered to CFB and are
incorporated by reference herein:
(i) The Consolidated Reports of Condition and Income of the Bank
as of December 31 for each of the years 1994, 1995 and 1996 and the period
ending March 31, 1997; and
(ii) The audited consolidated financial statements of
Summit, prepared in the ordinary course of business for each of the
years ended December 31, 1994, 1995 and 1996.
Each of the aforementioned Financial Statements is, and the Determination Date
Balance Sheet will be (when delivered pursuant to Section 1.4), true and correct
in all material respects, and together they fairly present, in accordance with
generally accepted accounting principles (applied on a consistent basis except
as disclosed in the footnotes thereto and except that the unaudited Financial
Statements are subject to any adjustments which might be required as a result of
an examination of independent accountants) the financial position and results of
operation of each of the respective Bank and Summit as of the dates and for the
periods therein set forth. To the knowledge of Summit, such Financial
Statements did not, as of the date of the preparation thereof, exclude any
material assets or omit to state any material liability, absolute or contingent,
the inclusion or omission of which renders such financial statements, in light
of the circumstances in which they were made, misleading in any material
respect. Since May 31, 1997, there has been no material adverse change in the
financial condition, results of operation or business of the Bank and Summit,
taken as a whole (other than changes in banking laws or regulations, changes in
generally accepted accounting principles or interpretations thereof that affect
the banking industry generally, or changes in general economic conditions that
affect the banking industry on a nationwide basis, including changes in the
general level of interest rates).
9
(i) FIDELITY INSURANCE. The Bank is insured under a Banker's Blanket
Bond which is in full force and effect and the Bank has not received notice of
cancellation or non-renewal thereof, and except as set forth in Schedule 3.1(i)
of the Summit Disclosure Schedule, filed any claim thereunder during the past
five years. There are no unresolved claims.
(j) EMPLOYMENT CONTRACTS. Except as set forth in Section 3.1(j) of
the Summit Disclosure Schedule, neither Summit nor the Bank is a party to or
bound by any written or oral (i) employment or consulting contract that is not
terminable without penalty by Summit or the Bank on 30 days' or less notice or
(ii) any collective bargaining agreement covering employees.
(k) EMPLOYEE BENEFITS. Section 3.1(k) of the Summit Disclosure
Schedule lists every employee benefit plan within the meaning of Section 3(3)
of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"),
which the Bank or Summit maintain or to which the Bank or Summit contribute
on behalf of current or former employees of the Bank or Summit. All of the
plans and programs listed in Section 3.1(l) of the Summit Disclosure Schedule
(hereinafter referred to as the "Plans") are in compliance in all material
respects with all applicable requirements of ERISA and all other applicable
federal and state laws. None of the Plans is a defined benefit pension plan.
None of the Plans has engaged in a "prohibited transaction," within the
meaning of Section 4975 of the Code or Section 406 of ERISA, none of the
Plans which is subject to Title IV of ERISA or any trust created thereunder
has been terminated, nor have there been any "reportable events" as that term
is defined in Section 4043 of ERISA with respect to any Plan and none of the
Plans has incurred an accumulated funding deficiency within the meaning of
Section 412(a) of the Code.
(l) LITIGATION. Except as described in Section 3.1(l) of the Summit
Disclosure Schedule, no claims have been asserted by written notice to Summit
and no relief has been sought against Summit, the Bank or any of the Plans in
any pending litigation or governmental proceedings or otherwise. Neither Summit
nor the Bank is a party to any unsatisfied order, judgment or decree which is
adverse to Summit or the Bank, and neither Summit nor the Bank (i) is the
subject of any cease and desist order, or other formal or informal enforcement
action by any regulatory authority; or (ii) has made any commitment to or
entered into any agreement with any regulatory authority that restricts or
adversely affects its operations or financial condition. To the knowledge of
Summit, there do not exist facts that would reasonably be expected to give rise
to a material claim against Summit or the Bank after the Closing Date.
(m) TAXES. Each of Summit and the Bank have filed all federal and
state income tax returns and all other returns with respect to any taxes,
either federal, state or local, which it is required to have filed; said
returns have been correctly and accurately prepared; all taxes reflected
thereon have been paid or adequately accrued for; no notice of any
deficiency, assessments or additions to tax have been received by Summit or
the Bank; neither Summit nor the Bank has waived any statute of limitations
with respect to any taxes reflected on said returns; and deferred taxes have
been properly reflected on the financial statements. Except as set forth in
Section 3.1(m) of the Summit Disclosure Schedule, there are no other taxes of
any kind or
10
character for which either Summit or the Bank is or may be liable which are
now past due, delinquent and/or unpaid.
(n) TITLE TO PROPERTY. The Bank has good and marketable title to all
material assets and properties, whether real or personal, that it purports to
own, including without limitation all real and personal assets and properties
reflected in its Consolidated Reports of Condition and Income as of December 31,
1996, or acquired subsequent thereto (except to the extent that such assets and
properties have been disposed of for fair value in the ordinary course of
business since December 31, 1996) subject to no liens, mortgages, security
interests, encumbrances or charges of any kind, except (i) as noted in said
Consolidated Reports or the Schedules thereto; (ii) statutory liens for taxes
not yet delinquent; (iii) security interests granted to secure deposits of funds
by federal, state or other governmental agencies; (iv) minor defects and
irregularities in title and encumbrances that do not materially impair the use
thereof for the purposes for which they are held by the Bank as of the date
hereof; and (v) such liens, mortgages, security interests, encumbrances and
charges that are not in the aggregate material to the assets and properties of
such Bank.
(o) INSURANCE POLICIES. Summit has delivered to CFB true, accurate
and complete copies of all insurance policies of Summit and the Bank as of the
date of this Agreement. Each such policy is in full force and effect, with all
premiums due thereon on or prior to the date of this Agreement having been paid
as and when due.
(p) BANK PROPERTY. All buildings, structures, fixtures, and
appurtenances comprising the premises of the Bank are in good condition
subject to ordinary wear and tear. Except for the facts set forth in the
Assessment (as hereinafter defined), Summit and the Bank are, and have been
at all times, in substantial compliance with all applicable Environmental
Laws (as defined below), and have not engaged in any activity resulting in a
material violation of any applicable Environmental Law. To the best
knowledge of Summit, there is no legal, administrative, or other proceeding,
claim, investigation (with respect to which Summit is aware), inquiry, order,
hearing or action of any nature seeking to impose, or that would reasonably
be expected to result in the imposition, on Summit or the Bank, of any
liability arising from any violation of or obligation under any local, state
or federal environmental statute, regulation or ordinance including, without
limitation, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended ("Environmental Laws"), pending or, to the
knowledge of Summit, threatened against Summit or the Bank; to the knowledge
of Summit and except for the facts set forth in the Assessment, there is no
reasonable basis for any such proceeding, claim, investigation, inquiry,
order, hearing or action; and neither Summit nor the Bank is subject to any
agreement, order, judgment, or decree by or with court, governmental
authority or third party imposing any such environmental liability. No
claims have been made by any governmental authority or third party against
Summit since it was incorporated, or the Bank during the past ten (10) years
relating to damage, contribution, cost recovery, compensation, loss or
inquiry resulting from any violation of or obligation under any Environmental
Laws.
11
(q) CONDUCT OF BUSINESS. Except for the facts set forth in the
Assessment, the Bank and Summit are in compliance in all material respects with
all laws, regulations and orders (including zoning ordinances) applicable to
them and to the conduct of their business, including without limitation, all
statutes, rules and regulations pertaining to the conduct of the Bank's banking
activities (including the exercise of fiduciary and trust powers), except where
the failure to comply would not reasonably be expected to have a material
adverse effect on Summit.
(r) DOCUMENTATION. The documentation relating to loans made by the
Bank and relating to all security interests, mortgages and other liens with
respect to all collateral for such loans, taken as a whole, is adequate for the
enforcement of the material terms of such loans and of the related security
interests, mortgages and other liens. The terms of such loans and of the
related security interests, mortgages and other liens comply in all material
respects with all applicable laws, rules and regulations (including laws, rules
and regulations relating to the extension of credit). There are no loans,
leases, other extensions of credit or commitments to extend credit of the Bank
that have been or should in accordance with generally acceptable accounting
principles, have been classified by the Bank as nonaccrual, as restructured, as
90 days past due, as still accruing and doubtful of collection or any comparable
classification. Summit has provided to CFB such written information concerning
the loan portfolios of the Bank as CFB has requested, which information is true,
correct and complete in all material respects.
(s) LEASES AND CONTRACTS. Except as set forth in Section 3.1(s) of
the Summit Disclosure Schedule neither the Bank nor Summit is a party to or
bound by any written or oral (i) lease or license with respect to any
property, real or personal, with a value in excess of $20,000, whether as a
lessor, lessee, licensor or licensee; (ii) contract or commitment for capital
expenditures in excess of $20,000 for any one project or $50,000 in the
aggregate; (iii) contract or commitment for total expenses in excess of
$20,000 made in the ordinary course of business for the purchase of
materials, supplies, or for the performance of services for a period of more
than 180 days from the date of this Agreement; or (iv) contract or option for
the purchase or sale of any real or personal property other than in the
ordinary course of business (all such agreements, contracts, and commitments
collectively are herein referred to as the "Material Contracts"). The Bank
and Summit have performed in all material respects all obligations required
to be performed by them to date, and are not in material default under, and
no event has occurred which, with the lapse of time or action by a third
party, could result in a material default under any of the Material Contracts
to which the Bank or Summit is a party or by which the Bank or Summit is
bound. Each of the Material Contracts is a valid and legally binding
obligation of the Bank and the other party or parties thereto, subject to (i)
all applicable bankruptcy, insolvency, moratorium or other similar laws
affecting the enforcement of creditors' rights generally, and (ii) the
application of equitable principles if equitable remedies are sought.
(t) SHAREHOLDER LISTS. Summit has furnished to CFB a current
shareholder list as of the date set forth therein that (i) sets forth the record
name and number of shares held by each holder of preferred stock and common
stock of Summit and (ii) identifies each shareholder who is an officer or
director of the Bank or Summit.
12
(u) BANK PRINCIPALS. Except as set forth in Section 3.1(u) of the
Summit Disclosure Schedule, no director or executive officer of Summit or the
Bank, nor any holder of ten percent or more of the outstanding capital stock
of Summit, nor any affiliate of such person as that term is defined under 12
USC 371(c) ("Bank Principal") (i) is or has during the period subsequent to
December 31, 1995, been a party (other than as a depositor) to any
transaction with the Bank, whether as a borrower or otherwise, which (a) was
made other than in the ordinary course of business; (b) was made on other
than substantially the same terms, including interest rate and collateral, as
those prevailing at the time for comparable transactions for other persons;
or (c) involves more than the normal risk of collectibility or presents other
unfavorable features; or (ii) is a party to any loan or loan commitment,
whether written or oral, from the Bank involving an amount in excess of
$10,000. Except as set forth in Section 3.1(u) of the Summit Disclosure
Schedule, no Bank Principal holds any position with any depository
organization other than the Bank or Summit. For the purposes of this
provision, the term "depository organization" means a commercial bank
(including a private bank), a savings bank, a trust company, a savings and
loan association, a homestead association, a cooperative bank, an industrial
bank, a credit union, or a depository organization holding company.
(v) INFORMATION SUPPLIED. None of the information supplied or to be
supplied by Summit or the Bank for inclusion or incorporation by reference in
(i) the "Registration Statement" (as hereinafter defined) will, at the time the
Registration Statement becomes effective under the Securities Act of 1993, as
amended (the "Securities Act"), contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they are
made, not misleading and (ii) the "Prospectus-Proxy Statement" (as hereinafter
defined) and any amendment or supplement thereto will, at the date of mailing to
the Summit stockholders and at the times of the meeting of stockholders of
Summit 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 not misleading. Summit
will use its best efforts to cause those portions of the Registration Statement
supplied by Summit to comply in all material respects with applicable law.
(w) AGREEMENTS WITH BANK REGULATORS. Except as set forth in Section
3.1(w) of the Summit Disclosure Schedule, neither Summit nor the Bank: (i) is a
party to any written agreement or memorandum of understanding with; (ii) is
subject to any order or directive by; (iii) is subject to any extraordinary
supervisory letter from; or (iv) has adopted any board resolutions at the
request of, federal or state governmental entities charged with the supervision
or regulation of Bank or Summit or engaged in the insurance of bank deposits
("Bank Regulators"), nor has Summit been advised by any Bank Regulators that it
is contemplating issuing or requesting any such order, directive, written
agreement, memorandum of understanding, extraordinary supervisory letter,
commitment letter, board resolutions or similar undertaking.
3.2 REPRESENTATIONS AND WARRANTIES OF CFB. CFB represents and warrants
to Summit, in all material respects, as of the date of this Agreement (except
as otherwise expressly provided)
13
as follows, except as disclosed on the attached EXHIBIT C (the "CFB
Disclosure Schedule") and the schedules thereunder which are numbered to
correspond to the representations set forth below:
(a) CFB ORGANIZATION. CFB is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware, with
authorized capital stock consisting of 30,000,000 shares of common stock, par
value of $.01 per share, of which 18,658,951 shares were issued and outstanding
as of March 31, 1997 and 2,000,000 shares of preferred stock, of which no shares
of preferred stock were issued and outstanding as of March 31, 1997. CFB has
all requisite power, authority, charters, licenses and franchises necessary or
required by law to carry on the business activity in which it is presently
engaged. CFB is registered as a corporation under Section 1841 of Title 12,
United States Code, as amended (the "Bank Holding Company Act").
(b) REPORTS. CFB and the CFB Subsidiaries have filed all reports,
registrations and statements, together with any required amendments thereto,
that they were required to file with (i) the Securities and Exchange Commission
("SEC"), including, but not limited to, Forms 10-K, Forms 10-Q and proxy
statements, (ii) the Federal Reserve Board, (iii) the FDIC, (iv) the Comptroller
and (v) any applicable state securities or banking authorities. All such
reports and statements filed with any such regulatory body or authority are
collectively referred to herein as the "CFB Reports." As of their respective
dates, the CFB Reports complied in all material respects with all the rules and
regulations promulgated by the SEC, the Federal Reserve Board, the FDIC, the
Comptroller and any applicable state securities or banking authorities, as the
case may be, and did not contain any untrue statement of material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading. CFB has timely filed with the SEC all reports, statements and
forms required to be filed pursuant to the Securities Exchange Act of 1934, as
amended (the "Exchange Act").
(c) ENFORCEABILITY. The execution, delivery and performance of this
Agreement by CFB and the consummation of the transactions contemplated hereby
have been duly authorized by the Board of Directors of CFB. Subject to approval
by the government agencies and other governing bodies having regulatory
authority over CFB as may be required by statute or regulation, this Agreement
constitutes a valid and binding obligation of CFB, enforceable against it in
accordance with its terms. This Agreement does not require the approval of CFB
shareholders. CFB has no knowledge of any facts or circumstances which would
lead a reasonably prudent person to conclude that regulatory approval of this
transaction might be denied.
(d) NO DEFAULT; CREATION OF LIENS. Neither the execution and
delivery of this Agreement nor the consummation of the transaction
contemplated hereby will conflict with, result in the breach of, constitute a
default under or accelerate the performance provided by the terms of any
judgment, order or decree of any court or other governmental agency to which
CFB may be subject, or any contract, agreement or instrument to which CFB is
a party or by which
14
CFB is bound or committed, or the Articles of Incorporation or Bylaws of CFB,
or constitute an event that, with the lapse of time or action by a third
party, could result in a default under any of the foregoing or result in the
creation of any lien, charge or encumbrance upon the CFB Common Stock.
(e) INFORMATION SUPPLIED. None of the information supplied or to be
supplied by CFB for inclusion or incorporation by reference in (i) the
Registration Statement will, at the time the Registration Statement becomes
effective under the Securities Act, contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which such statements were made, not misleading and (ii) the Prospectus-Proxy
Statement and any amendment or supplement thereto will, at the date of mailing
to Summit stockholders and at the times of the meeting of stockholders of Summit
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 not misleading. The
Registration Statement will comply as to form in all material respects with
applicable law.
(f) NO PLAN TO TRANSFER ASSETS. CFB has no plan or intention to sell
or otherwise dispose of any of the assets of Summit to be acquired in the
Merger, except for dispositions in the ordinary course of business or transfers
to controlled subsidiaries as described in Section 368(a)(2)(C) of the Code.
(g) FUTURE FILING REQUIREMENTS. CFB will make any and all filings
which are required to satisfy the requirements of Rule 145(d)(1) and Rule 144(c)
(or any amendments, supplements, or successors to such rules) on or before the
dates on which such filings are required to be made to comply with applicable
requirements of law, and will include in its reports, both quarterly and annual,
the statement that CFB has filed all reports required to be filed by Section 13
or 15(d) of the Securities and Exchange Act of 1934 during the preceding 12
months.
ARTICLE 4
COVENANTS OF SUMMIT AND CFB
4.1 COVENANTS OF SUMMIT. During the period from the date of this
Agreement and continuing until the Effective Time, Summit agrees as follows:
(a) ORDINARY COURSE. Except as otherwise required under this
Agreement or by CFB, Summit and the Bank shall carry on their respective
businesses in the usual, regular and ordinary course in substantially the
same manner as heretofore conducted and use all reasonable efforts to
preserve intact their present business organizations, maintain their rights
and franchises and preserve their relationships with customers, suppliers and
others having business dealings with them to the end that their goodwill and
ongoing businesses shall not be impaired in any material respect. Summit
shall not, nor shall it permit the Bank to (i) enter into any new material
15
line of business, (ii) increase or decrease the current number of the
directors of Summit and the Bank, (iii) change its or the Bank's lending,
investment, liability management or other material banking policies in any
respect that is material to such party; or (iv) incur or commit to any
capital expenditures (or any obligations or liabilities in connection
therewith) other than capital expenditures (and obligations or liabilities in
connection therewith) incurred or committed to in the ordinary course of
business consistent with past practices.
(b) SHAREHOLDER MEETING. Summit will cause to be duly called, and
will cause to be held as soon as it is practicable to do so, but in no event
later than forty-five (45) days following the effective date of the
Registration Statement, a meeting of its shareholders and will direct that
this Agreement be submitted to a vote at such meeting. Summit will (i) cause
proper notice of such meeting to be given to its shareholders in compliance
with the Colorado Act and other applicable laws and regulations; (ii)
recommend by the affirmative vote of a majority of the Board of Directors a
vote in favor of approval of this Agreement; and (iii) use its best efforts
to solicit from its shareholders proxies in favor thereof.
(c) REGISTRATION STATEMENT. Summit will promptly furnish or cause
to be furnished to CFB all of the information concerning Summit and the Bank
required for inclusion in, and will cooperate with CFB in the preparation of,
the Registration Statement and Prospectus-Proxy Statement (including audited
financial statements, prepared in accordance with generally accepted
accounting principles, in form suitable for inclusion in the Registration
Statement and Prospectus-Proxy Statement), or any statement or application
made by CFB to any governmental body in connection with the Merger. Summit
agrees promptly to advise CFB if at any time prior to the Effective Date of
the Merger, any information provided by or on behalf of Summit becomes
incorrect or incomplete in any material respect and to provide the
information needed to correct such inaccuracy or omission.
(d) CONFIDENTIAL INFORMATION. Summit will hold in confidence all
documents and nonpublic information concerning CFB and its subsidiaries
furnished to Summit and its representatives in connection with the Merger and
will not release or disclose such information to any other person, except as
required by law and except to Summit's outside professional advisers in
connection with this Agreement, with the same undertaking from such
professional advisers. If the Merger contemplated by this Agreement shall
not be consummated, such confidence shall be maintained and such information
shall not be used in competition with CFB (except to the extent that such
information can be shown to be previously known to Summit, in the public
domain, or later acquired by Summit from other legitimate sources) and, upon
request, all such documents, any copies thereof and extracts therefrom shall
immediately thereafter be returned to CFB.
(e) BENEFIT PLANS. Summit and the Bank will, to the extent legally
permissible, take all action necessary or required (i) to terminate or amend,
if requested by CFB and at CFB's cost, all qualified pension and welfare
benefit plans and all non-qualified benefit plans and compensation
arrangements as of the Effective Time; (ii) to amend the Plans to comply with
the provisions of the Tax Reform Act of 1986, as amended, and regulations
thereunder and other
16
applicable law as of the Effective Time; and (iii) to
submit application to the Internal Revenue Service for a favorable
determination letter for each of the Plans which is subject to the
qualification requirements of Section 401(a) of the Code prior to the
Effective Time.
Except as set forth in Section 3.1(k) of the Summit Disclosure
Schedule, and except as otherwise required pursuant to this Section 4.1(e),
Summit agrees as to itself and the Bank that it will not, without the prior
written consent of CFB, (i) enter into, adopt, amend (except as may be
required by law) or terminate any Plan, as the case may be, or any other
employee benefit plan or any agreement, arrangement, plan or policy between
Summit or any of the Bank and one or more of its directors or officers;
provided, however, that Summit or the Bank may amend any of the Plans to
reduce or eliminate a requirement of mandatory periodic contributions
provided that if any of the Plans do not have assets with an aggregate value
that exceeds the present value of its liability for accrued benefits, all as
determined on a termination basis, then Summit shall accrue on its
Determination Date Financial Statements the amount by which any of the Plans
are underfunded; (ii) except for normal increases in the ordinary course of
business consistent with past practice that in the aggregate do not result in
aggregate annual base compensation expense to Summit in excess of 105% of
that in effect as of December 31, 1996, increase in any manner the
compensation of any director, officer, or employee, or pay any benefit not
required by any plan and arrangement as in effect as of the date hereof
(including, without limitation, the granting of stock options, stock
appreciation rights, restricted stock, restricted stock units or performance
units or shares) or enter into any contract, agreement, commitment or
arrangement to do any of the foregoing; or (iii) enter into or renew any
contract, agreement, commitment or arrangement providing for the payment to
any director, officer or employee of Summit or the Bank of compensation or
benefits contingent, or the terms of which are materially altered, upon the
occurrence of the Merger.
(f) NO SOLICITATIONS. Summit shall not permit the Bank to, nor
shall it authorize or permit any of its officers, directors or employees or
any investment banker, financial advisor, attorney, accountant or other
representative or agent retained by it or the Bank to solicit, or take any
other action to facilitate, any inquiries or the making of any proposal which
constitutes, or may reasonably be expected to lead to, any takeover proposal
(as defined below), or agree or endorse any takeover proposal, or participate
in any discussions or negotiations, or provide third parties with any
nonpublic information, relating to any such inquiry or proposal. Summit
shall promptly advise CFB orally and in writing of any such inquiries or
proposals, including all of the material terms thereof. As used in this
Agreement, "takeover proposal" shall mean any tender or exchange offer,
proposal for a merger, consolidation or other business combination involving
Summit or any proposal or offer to acquire in any manner a substantial equity
interest in, or a substantial portion of the assets of Summit other than the
transactions contemplated or permitted by this Agreement.
(g) NO ACQUISITIONS. Other than (i) acquisitions described in
Section 4.1(g) of the Summit Disclosure Schedule, or (ii) acquisitions which
may be mutually agreed to by the parties, Summit shall not, nor shall permit
the Bank to, acquire or agree to acquire, by merging or consolidating with,
or by purchasing a substantial equity interest in or a substantial portion of
the
17
assets of, or by any other manner, any business or any corporation,
partnership, association or division thereof or otherwise acquire or agree to
acquire any substantial amount of assets in each case; PROVIDED, however,
that the foregoing shall not prohibit (i) internal reorganizations,
consolidations or dissolutions involving only the Bank as permitted or
directed by this Agreement, (ii) foreclosures and other acquisitions related
to previously contracted debt, in each case in the ordinary course of
business, or (iii) acquisitions of Summit assets in each case in the ordinary
course of business.
(h) INSURANCE. Summit and the Bank shall maintain the insurance
coverage (or coverage of a like kind and amount) referenced in Section 3.1(o)
through the Effective Time.
(i) POOLING RESTRICTIONS. From and after the date of this
Agreement, neither Summit nor the Bank shall take any action which, with
respect to Summit, would disqualify the Merger as a "pooling of interests"
for accounting purposes.
(j) FINANCIAL STATEMENTS. Summit shall have prepared, filed and
submitted to CFB all quarterly and management prepared financial statements
for any periods ending at least 30 days before the Closing Date.
(k) ADDITIONAL COVENANTS OF SUMMIT. From the date of this
Agreement to the Closing Date or the earlier termination of this Agreement,
Summit, EXCEPT WITH THE PRIOR WRITTEN CONSENT OF CFB (except as otherwise
specifically provided in clauses (xiv) and (xv) of this Section 4.1(k)), or
as specifically required under the Agreement, shall not, nor shall it allow
the Bank to:
(i) Except as set forth in Section 4.1(g) of the Summit
Disclosure Schedule, issue, sell or commit to issue or sell any
shares of capital stock of Summit or the Bank, securities
convertible into or exchangeable for capital stock of Summit or the
Bank, warrants, options or other rights to acquire such stock, or
enter into any agreement with respect to the foregoing other than
issuance by the Bank of capital stock to Summit;
(ii) Redeem, purchase or otherwise acquire (except for trust
account shares) directly or indirectly, any shares of capital stock
of Summit or the Bank or any securities convertible or exercisable
for any shares of capital stock of Summit or the Bank;
(iii) Split, combine or reclassify any of capital stock of
Summit or the Bank or issue or authorize or propose the issuance of
any other securities in respect of, in lieu of, or in substitution
for shares of capital stock of Summit or the Bank;
(iv) Borrow, assume, guarantee, endorse or otherwise as an
accommodation become responsible for the obligations of any other
individual, corporation or other entity, any material amount;
18
(v) Other than in the ordinary course of business, discharge
or satisfy any material lien or encumbrance on the properties or
assets of the Bank or pay any material liability;
(vi) Mortgage, pledge or subject to any lien or other
encumbrance any of its assets, except (A) in the ordinary course of
business, (B) liens and encumbrances for current property taxes not
yet due and payable, and (C) liens and encumbrances which do not
materially affect the value or interfere with the current use or
ability to convey the property subject thereto or affected thereby;
(vii) Sell, assign or transfer any tangible or intangible
assets with a book value greater than $10,000, except in the
ordinary course of business;
(viii) Enter into any individual employment, agency or other
contract or arrangement for the performance of personal services for
an amount in excess of $10,000 (except for service agreements in the
ordinary course of business);
(ix) Amend the Bank' or Summit's Articles of Association,
Articles of Incorporation, Bylaws or other governing documents;
(x) Cancel any material debt or claim or waive any right of
material value, except in the ordinary course of business;
(xi) Repurchase or enter into any agreement to repurchase all
or any portion of any loan previously participated to any other
financial institution other than loans repurchased in compliance
with all applicable laws and regulations;
(xii) Originate any loan which is thereafter participated to
another financial institution providing for payment upon default on
any basis other than pro rata;
(xiii) Make or commit to make any further advances on any loan
which is either in default or classified, whether such
classification is a result of a federal or state bank regulatory
examination or internal classification of substandard or lower by
Bank's officers or directors, unless the Bank is under a legal
obligation to do so;
(xiv) (A) make, or agree to make, any fully secured loan or
increase any existing fully secured loan for an amount in excess of
$150,000, to any one borrower, unless said loan is made pursuant to
a properly documented and legally enforceable commitment of the Bank
to the borrower made prior to the date of this Agreement; (B) make,
or agree to make, any unsecured loan or increase any unsecured loan
by $25,000 or more, unless said loan is made pursuant to a properly
documented and legally enforceable commitment of the Bank to the
borrower made prior to the date of this Agreement; (C) make, or
agree to make any new loan or advance on any existing loan, except
in conformity with the Bank's current loan
19
policies; (D) make, or agree to make, any additional advance in an
amount in excess of $25,000 with respect to any loan classified
"substandard" or less by any bank regulatory agency or pursuant to
the Bank's risk rating system; or (E) make any change with respect
to the terms of any existing loan, except in the ordinary course of
business (the provisions of parts A and B of this section shall not
apply to renewals of existing loans, advances under existing loans
or increases to existing loans for an amount below the applicable
limit set forth in parts A and B). Section 4.1(xiv), CFB shall
provide advice of its consent within three business days after CFB
has received the Request for Consent and accompanying information
necessary for CFB to consider the request;
(xv) Make or agree to make any loan to any Bank Principal or
any person, corporation or entity in violation of any state or
federal law or regulation;
(xvi) Incur any obligation or liability with respect to
capital expenditures which exceeds $10,000 for any single matter or
$50,000 in the aggregate, except for capital expenditures described
in Section 3.1(s) of the Summit Disclosure Schedule;
(xvii) Fail to timely pay and discharge all federal and state
taxes and other accounts payable for which it is liable, provided,
that the Bank may deposit an amount equal to any such taxes, in lieu
of the payment thereof, into a reserve account, determined
consistently with prior practices, from which such taxes will be
paid when and to the extent they are found to be properly due and
payable;
(xviii) Pay or commit to pay any additional salary or other
compensation to any of the Bank's officers, directors or employees;
(xix) Except as otherwise required pursuant to Section 4.1(e),
enter into, adopt, amend (except as may be required by law),
terminate or make or grant any increase above current funding levels
in any of the Plans (other than normal premium increases on current
health care insurance) or arrangement;
(xx) Purchase or sell any bonds or other investment securities
without prior written consent of CFB or make or agree to make any
investment in violation of any federal law or regulation except that
the Bank may purchase U.S. Treasury or Agencies securities with
maturity dates of twenty-four (24) months or less;
(xxi) Fail to charge and pay interest rates on loans and
deposits, respectively, not materially consistent with practices in
the Bank's marketplace;
(xxii) Fail to use its reasonable best efforts to comply with
any law, rule, regulation or order applicable to the Bank and/or
Summit if such failure would have a material adverse effect upon
Summit;
20
(xxiii) Fail to make all appropriate and required transfers to
the Bank's loan loss reserves based upon existing policies of the
Bank or at the request of any regulatory agency or, in any event,
fail to maintain a loan loss reserve of at least equal to
$2,000,000;
(xxiv) Change any accounting methods, practices or procedures
with respect to the accumulation and presentation of financial
information, except as directed by applicable law or regulation or
to conform with accounting standards;
(xxv) Declare or pay any dividends or distributions with
respect to its stock after the Determination Date; or
(xxvi) Fail to use its reasonable best efforts to obtain the
consent or approval of each person (other than the government
authorities referred to in Section 6.1(c)) whose consent or approval
is required in order to permit a succession by the Surviving
Corporation pursuant to the Merger to any obligation, right or
interest of Summit or the Bank under any loan or credit agreement,
note, mortgage, indenture, lease, license or other agreement or
instrument.
4.2 COVENANTS OF CFB. During the period from the date of this Agreement
and continuing until the Effective Time, CFB agrees as follows:
(a) ORDINARY COURSE. Except as set forth in Section 4.2(a) of
the CFB Disclosure Schedule, CFB shall carry on its business in the usual,
regular and ordinary course in substantially the same manner as heretofore
conducted.
(b) APPLICATION. Subject to the required cooperation of Summit and
its affiliates, CFB shall use its reasonable best efforts to prepare and
submit within thirty (30) days of the date hereof an application to the
Federal Reserve Bank of Minneapolis for prior approval pursuant to Section
3(a)(5) of the Bank Holding Company Act of 1956, as amended, of the proposed
transaction, and to prosecute all required federal and state applications.
(c) COOPERATION. CFB will furnish to Summit all the information
concerning CFB required for inclusion in, and will cooperate in the
preparation of, the Prospectus-Proxy Statement to be sent to the shareholders
of Summit. CFB agrees promptly to advise Summit if at any time prior to the
Effective Date of the Merger, any information provided by CFB in the
Prospectus-Proxy Statement becomes incorrect or incomplete in any material
respect and to provide the information needed to correct such inaccuracy or
omission.
(d) REGISTRATION STATEMENT. As promptly as practicable after the
execution of this Agreement, CFB will file with the SEC a registration
statement on Form S-4 under the Securities Act (the "Registration Statement")
and any other applicable documents, which will include a prospectus and joint
proxy statement (the "Prospectus-Proxy Statement"), and will use its best
efforts to cause the Registration Statement to become effective under the
Securities Act and
21
applicable state securities laws as soon as practicable. CFB shall advise
Summit promptly when the Registration Statement has become effective and of
any supplements or amendments thereto, and CFB shall furnish Summit with
copies of all such documents. At the time the Registration Statement becomes
effective, the Registration Statement and the Prospectus-Proxy Statement will
comply in all material respects with the provisions of the Securities Act and
the published rules and regulations thereunder, and will not contain any
untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements contained therein,
in light of the circumstances under which they are made, not misleading. At
the time of mailing thereof to the Summit shareholders, at the time of the
Summit shareholders' meeting referred to in Section 4.1(b) hereof and at the
Effective Time of the Merger, the Prospectus-Proxy Statement included as part
of the Registration Statement or any amendment thereof or supplement thereto,
will not contain any untrue statement of a material fact or omit to state any
material fact necessary to make the statements contained therein, in light of
the circumstances under which they are made, not misleading or omit to state
a material fact necessary to correct any statement in any earlier
communication with respect to the solicitation of any proxy for the Summit
shareholders' meeting; PROVIDED, HOWEVER, that none of the provisions of this
subparagraph shall apply to statements in or omissions from the Registration
Statement or the Prospectus-Proxy Statement made in reliance upon and in
conformity with information furnished by Summit or the Bank for use in the
Registration Statement or the Prospectus-Proxy Statement. CFB shall bear
the costs of all SEC filing fees with respect to the Registration Statement,
the costs of printing the Prospectus-Proxy Statement, and the costs of
qualifying the shares of CFB Common Stock under state blue sky laws as
necessary.
(e) LISTING. CFB will file all documents required to be filed to
obtain approval for listing the CFB Common Stock to be issued pursuant to the
Merger on the NASDAQ National Market System and use its best efforts to
effect said listing.
(f) SHARES TO BE ISSUED. The shares of CFB Common Stock to be
issued by CFB to the shareholders of Summit pursuant to this Agreement will,
upon such issuance and delivery to said shareholders pursuant to the
Agreement, be duly authorized, validly issued, fully paid and nonassessable.
The shares of CFB Common Stock to be delivered to the shareholders of Summit
pursuant to this Agreement are and will be free of any preemptive rights of
the stockholders of CFB.
(g) BLUE SKY. CFB will file all documents required to obtain prior
to the Effective Time of the Merger all necessary Blue Sky permits and
approvals, if any, required to carry out the transactions contemplated by
this Agreement, will pay all expenses incident thereto and will use its best
efforts to obtain such permits and approvals.
(h) CONFIDENTIAL INFORMATION. CFB will hold in confidence all
documents and information concerning Summit and the Bank furnished to it and
its representatives in connection with the transactions contemplated by this
Agreement and will not release or disclose such information to any other
person, except as required by law and except to its outside professional
22
advisers in connection with this Agreement, with the same undertaking from
such professional advisers. If the transactions contemplated by this
Agreement shall not be consummated, such confidence shall be maintained and
such information shall not be used in competition with Summit (except to the
extent that such information can be shown to be previously known to CFB, in
the public domain, or later acquired by CFB from other legitimate sources)
and, upon request, all such documents, copies thereof or extracts therefrom
shall immediately thereafter be returned to Summit.
(i) REGISTRATION STATEMENT. CFB will furnish or cause to be
furnished all of the information concerning CFB and the CFB Subsidiaries
required for inclusion in, and will cooperate with Summit in the preparation
of the Registration Statement, or any statement or application made by Summit
to any governmental body in connection with the transactions contemplated by
this Agreement. CFB agrees to advise Summit if at any time prior to the
Effective Time, any information provided by or on behalf of CFB becomes
incorrect or incomplete in any material respect and to provide the
information needed to correct such inaccuracy or omission.
4.3 COVENANTS OF SUMMIT AND CFB. During the period from the date of
this Agreement and continuing until the Effective Time, Summit and CFB agree
as to themselves and their subsidiaries that, except as expressly
contemplated or permitted by this Agreement, or to the extent that the
parties shall otherwise consent in writing:
(a) GOVERNING DOCUMENTS. No party shall amend its Certificate or
Articles of Incorporation or Bylaws.
(b) OTHER ACTIONS. Unless such action is required by law or sound
banking practice, no party knowingly and intentionally shall, or shall permit
any of its Subsidiaries to, take any action that (i) is intended to result in
any of its representations and warranties set forth in this Agreement being
or becoming untrue in any material respect, or in any of the conditions to
the Merger set forth in Article VI not being satisfied or in a violation of
any provision of this Agreement, or (ii) would adversely affect the ability
of any of them to obtain any of the Requisite Regulatory Approvals (as
defined in Section 6.1(c)) without imposition of a condition or restriction
of the type referred to in Section 6.1(f) hereof except, in every case, as
may be required by applicable law or this Agreement.
(c) ADVICE OF CHANGES; GOVERNMENT FILINGS. Each party shall
promptly advise the other orally and in writing of any change or event
constituting a material breach of any of the representations, warranties or
covenants of such party contained herein. CFB shall file all reports
required to be filed by it with the SEC between the date of this Agreement
and the Effective Time and shall deliver to Summit copies of all such reports
promptly after the same are filed. CFB, Summit and each subsidiary of CFB or
Summit that is a bank shall file all Call Reports with the appropriate Bank
Regulators and all other reports, applications and other documents required
to be filed with the appropriate Bank Regulators between the date hereof and
the Closing Date and shall make available to the other party copies of all
such reports promptly after the same are filed.
23
(d) TITLE OF PROPERTY. Summit agrees to deliver to CFB (at
Summit's expense) within thirty (30) days of the date hereof, a title
insurance commitment for all real property owned by Summit or the Bank in the
State of Colorado (including property held as OREO) (the "Title Commitment").
CFB shall have thirty (30) days after receipt by CFB's counsel of said Title
Commitment within which to notify Summit, in writing, of CFB's objection to
any exceptions (other than any exception of the type described in Section
3.1(n)(i) through (iv)) to the title shown in said Title Commitment. In the
event of any such objection, then Summit shall have thirty (30) days from the
date of such objection within which to attempt to eliminate such objected to
exceptions to title from the Title Commitment. In the event such objected to
exceptions are not eliminated or satisfied to the reasonable satisfaction of
CFB, CFB may terminate this Agreement pursuant to Section 7.1 hereof and such
termination shall be the sole and exclusive remedy for the failure to
eliminate or satisfy such exceptions.
(e) ENVIRONMENTAL ASSESSMENT. Summit shall engage at its expense
an independent, qualified environmental engineering firm, acceptable to CFB
for the purpose of conducting a Phase I Hazardous Waste Assessment (the
"Assessment") of all real properties owned or controlled by the Bank. The
Assessment shall satisfy ASTM's E-1527 Standard Practice and shall include a
record review of publicly available federal, state and local sources of
environmental records. The Assessment shall be completed within thirty (30)
days after the date hereof. CFB shall have a period of thirty (30) days from
the date of receipt of such Assessment to review such Assessment and give
written notice to Summit stating either that (i) such Assessment is approved
by CFB or (ii) such Assessment is not approved by CFB and the reasons
therefor.
If CFB gives a notice pursuant to (ii) above which sets forth specific
objections to the Assessment, then CFB may, at its option, terminate this
Agreement as of the date which is sixty (60) days after the date of such
notice unless during such sixty (60) day period Summit corrects or satisfies
such objections, or indemnifies CFB against loss, liability or expense, to
the reasonable satisfaction of CFB.
ARTICLE 5
ADDITIONAL AGREEMENTS
5.1 REGULATORY MATTERS.
(a) CFB shall use its reasonable best efforts to have the
Registration Statement declared effective under the Securities Act as
promptly as practicable after such filing, and, following the record date for
the stockholder meeting of Summit, thereafter mail the Prospectus-Proxy
Statement to the stockholders of Summit.
(b) The parties hereto shall cooperate with each other and use
their reasonable best efforts to promptly prepare and file all necessary
documentation, to effect all necessary applications, notices, petitions,
filings and other documents, and to obtain as promptly as
24
practicable all necessary permits, consents, and authorizations of all
governmental entities necessary to consummate the Merger ("Requisite
Regulatory Approvals"). Summit and CFB shall have the right to review in
advance, and to the extent practicable each will consult the other on,
subject to applicable laws relating to the exchange of information, all the
information relating to Summit or CFB, as the case may be, and any of their
respective subsidiaries, which appear in any filing made with, or written
materials submitted to any governmental entity in connection with the Merger.
In exercising the foregoing right, each of the parties hereto shall act
reasonably and as promptly as practicable.
(c) Summit and CFB shall promptly furnish each other with copies of
written communications received by Summit or CFB, as the case may be, or any
of their respective Subsidiaries, Affiliates or Associates (as such items are
defined in Rule 12b-2 under the Exchange Act as in effect on the date hereof)
from, or delivered by any of the foregoing to, any governmental entity in
respect of the Merger.
5.2 LETTERS OF SUMMIT OFFICERS. Summit shall cause to be delivered to
CFB a letter of Summit's chief financial officer in substantially the form
shown on EXHIBIT 5.2A dated (i) the date on which the Registration Statement
shall become effective and (ii) the business day prior to the Closing Date,
and addressed to CFB.
CFB shall cause to be delivered to Summit a letter of CFB's chief
financial officer in substantially the form shown on EXHIBIT 5.2B dated (i)
the date on which the Registration Statement shall become effective and (ii)
the business day prior to the Closing Date, and addressed to Summit.
5.3 ACCESS TO INFORMATION. Upon reasonable notice and subject to
applicable laws relating to the exchange of information, Summit and CFB shall
each (and cause each of its subsidiaries to) afford to the officers,
employees, accountants, counsel and other representatives of CFB, access
during normal business hours during the period prior to the Effective Time,
to all its properties, books, contracts, commitments and records for the
purpose of updating any review of such items performed prior to the date of
this Agreement and, during such period, Summit and CFB shall (and shall cause
each of its subsidiaries to) make available to the other: (a) a copy of each
report, schedule, registration statement and other document filed or received
by it during such period pursuant to the requirements of federal or state
securities laws or federal or state banking laws (other than reports or
documents which either party is not permitted to disclose under applicable
law); and (b) all other information concerning its business, properties and
personnel as either party may reasonably request. It is the intention of the
parties that CFB shall conduct an examination of Summit and the Bank (i)
promptly following execution of the Agreement and, again (ii) prior to the
Closing Date in order to confirm compliance with the representations,
warranties and covenants set forth in this Agreement. Any required
adjustments to the Financial Statements shall be made by Summit within ten
(10) business days following identification by CFB. In the event of a
dispute between Summit and CFB over whether adjustments are in conformity
with generally accepted accounting principles, the parties agree to share the
cost of referring the matter to Xxxxx Xxxxxxxx L.L.P. and to abide by its
final
25
determination. No investigation by either party shall affect the
representations and warranties set forth herein.
5.4 AFFILIATES. Each of Summit and CFB shall use its reasonable best
efforts to cause each director, executive officer and other person who is an
"affiliate" (for purposes of Rule 145 under the Securities Act) of Summit or
CFB to deliver to the other party hereto, as soon as practicable after the
date hereof, and at least 32 days prior to the Closing Date, a written
agreement substantially in the form of EXHIBIT 5.4.
5.5 EMPLOYEE BENEFIT PLANS. Each person who is an employee of the Bank
as of the Effective Time ("Bank Employees") shall be participants in the
employee welfare plans, and shall be eligible for participation in the
pension plans of CFB, as in effect from time to time, subject to any
eligibility requirements (with full credit for years of past service to any
of the Bank, or to any predecessor-in-interest of the Bank to the extent such
service is presently given credit under the Plans of the Bank described in
Section 3.1(k) hereof, for the purpose of satisfying any eligibility and
vesting periods) applicable to such plans (but not subject to any
pre-existing condition exclusions) and shall enter each welfare plan
immediately after the Effective Time and shall enter each pension plan not
later than the first day of the calendar year which begins at least 32 days
after the Effective Time. For the purpose of determining each Bank
Employee's benefit for the year in which the Merger occurs under the CFB
vacation program, vacation taken by a Bank Employee in the year in which the
Merger occurs will be deducted from the total CFB benefit. Each Bank
Employee shall be eligible for participation, as a new employee with the
credit for past service described above, in the CFB Plans under the terms
thereof.
5.6 EXPENSES. Except as otherwise stated herein, whether or not the
Merger is consummated, all costs and expenses incurred in connection with
this Agreement, and the transactions contemplated hereby shall be paid by the
party incurring such expense, except as may be permitted by Section 7.2. All
of the expenses (including but not limited to professional fees) incurred or
to be incurred by Summit in connection with the Merger shall be accrued as
expenses on the Determination Date Balance Sheet.
5.7 ADDITIONAL AGREEMENTS; BEST EFFORTS. Subject to the terms and
conditions of this Agreement, each of the parties hereto agrees to use its
reasonable best efforts to take all action and to do all things necessary,
proper or advisable under applicable laws and regulations to consummate and
make effective the transactions contemplated by this Agreement, including,
without limitation, cooperating fully with the other party hereto, providing
the other party hereto with any appropriate information and making all
necessary filings in connection with the Requisite Regulatory Approvals.
Without limiting the foregoing, Summit agrees to (i) cooperate with CFB and
use its best efforts in support of a request by CFB to the appropriate
regulatory agencies to provide interim management assistance to the Bank
pending consummation of the Agreement, and (ii) cooperate with CFB in
converting the Bank to CFB's data processing system. In the event the Bank's
data processing system is converted prior to consummation, CFB shall
26
not charge the Bank at a rate in excess of the rate the Bank currently pays
for comparable services.
ARTICLE 6
CONDITIONS PRECEDENT
6.1 CONDITIONS TO EACH PARTY'S OBLIGATION TO EFFECT THE MERGER. The
respective obligation of each party to effect the Merger shall be subject to
the satisfaction prior to the Effective Time of the following conditions:
(a) STOCKHOLDER APPROVAL. This Agreement shall have been approved
and adopted by the affirmative vote of the holders of two-thirds of the
outstanding shares of Summit Common Stock.
(b) NASDAQ LISTING. The shares of CFB Common Stock issuable to the
Summit stockholders pursuant to this Agreement shall have been approved for
listing on the NASDAQ National Market System, upon notice of issuance.
(c) OTHER APPROVALS. Other than the filing provided for by Section
1.1, all consents, orders or approvals of, or declarations or filings with,
and all expirations of waiting periods imposed by, any governmental entity
(collectively, the "Consents") which are prescribed by law as necessary for
the consummation of the Merger and the other transactions contemplated hereby
(other than immaterial Consents) shall have been filed, occurred or been
obtained and all such Requisite Regulatory Approvals shall be in full force
and effect.
(d) REGISTRATION STATEMENT. The Registration Statement shall have
become effective under the Securities Act and no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been initiated or threatened by the
SEC.
(e) NO INJUNCTIONS OR RESTRAINTS; ILLEGALITY. No order, injunction
or decree issued by any court or agency of competent jurisdiction or other
legal restraint or prohibition (an "Injunction") preventing the consummation
of the Merger or any of the transactions contemplated hereby shall be in
effect, nor shall any proceeding by any governmental entity seeking any such
Injunction be pending. No statute, rule, regulation, order, injunction or
decree shall have been enacted, entered, or enforced by any governmental
entity which prohibits, restricts or makes illegal consummation of the Merger.
(f) NO UNDULY BURDENSOME CONDITION. There shall not be any action
taken, or any statute, rule, regulation or order enacted, entered, enforced
or deemed applicable to the Merger or any of the transactions contemplated
hereby, by any federal or state governmental entity which, in connection with
the grant of a Requisite Regulatory Approval, imposes any condition or
restriction upon CFB, Summit, or any of their Subsidiaries which would so
materially adversely
27
impact the economic or business benefits of the transactions contemplated by
this Agreement as to render inadvisable, in the reasonable business judgment
of the Board of Directors of either CFB or Summit, the consummation of the
Merger.
6.2 CONDITIONS TO OBLIGATIONS OF CFB. The obligation of CFB to effect
the Merger are also subject to the satisfaction or waiver by CFB prior to the
Effective Time of the following conditions:
(a) REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Summit set forth in this Agreement shall be true and correct in
all material respects as of the date of the Agreement and (except to the
extent such representations and warranties speak as of an earlier date) as of
the Closing Date as though made on the Closing Date, except where the failure
to be true and accurate in all material respects would not have or would not
be reasonably expected to have a material adverse effect on Summit, and CFB
shall have received a certificate signed on behalf of Summit by the Chairman
of the Board of Summit to such effect.
(b) PERFORMANCE OF OBLIGATIONS OF SUMMIT. Summit shall have
performed in all materials respects all obligations required to be performed
by it under this Agreement at or prior to the Closing Date, and CFB shall
have received a certificate signed on behalf of Summit by the Chairman of the
Board of Summit to such effect.
(c) POOLING LETTER. CFB shall have received a letter from Ernst &
Young, in form and substance reasonably satisfactory to CFB, approving the
accounting treatment of the Merger as a "pooling of interests" in accordance
with generally accepted accounting principles, as of a date no more than five
business days prior to the Closing Date; in support of the Ernst & Young
pooling letter, Ernst & Young and CFB shall have received a letter from
Summit's accountants, in form and substance reasonably satisfying to Ernst &
Young, confirming certain facts on behalf of Summit.
(d) LEGAL OPINION. CFB shall have received the opinion of XxXxxxx
& Xxxxx, L.L.P., counsel to Summit, dated the Closing Date, in substantially
the form shown on EXHIBIT 6.2, and such opinion shall not have been withdrawn
prior to the Effective Time.
6.3 CONDITIONS TO OBLIGATIONS OF SUMMIT. The obligation of Summit to
effect the Merger is also subject to the satisfaction or waiver by Summit
prior to the Effective Time of the following conditions:
(a) REPRESENTATIONS AND WARRANTIES. The representations and
warranties of CFB set forth in this Agreement shall be true and correct in
all material respects as of the date of this Agreement and (except to the
extent such representations and warranties speak as of an earlier date) as of
the Closing Date as though made on the Closing Date, except as otherwise
contemplated by this Agreement, and Summit shall have received a certificate
signed on behalf of CFB by the Chairman and Chief Executive Officer and by
the Chief Financial Officer of CFB to such effect.
28
(b) PERFORMANCE OF OBLIGATIONS OF CFB. CFB and the Acquisition
Subsidiary shall have performed in all material respects all obligations
required to be performed by either of them under this Agreement at or prior
to the Closing Date, and Summit shall have received a certificate signed on
behalf of CFB and the Acquisition Subsidiary by the Chairman and Chief
Executive Officer and by the Chief Financial Officer of CFB to such effect.
(c) CONSENTS UNDER AGREEMENTS. CFB shall have obtained the consent
or approval of each person (other than the Governmental Entities referred to
in Section 6.1(c)) whose consent or approval shall be required in connection
with the transactions contemplated hereby under any loan or credit agreement,
note, mortgage, indenture, lease, license or other agreement or instrument to
which CFB or any of its subsidiaries is a party or is otherwise bound, except
those for which failure to obtain such consents and approvals would not, in
the reasonable opinion of Summit, individually or in the aggregate, have a
material adverse effect on CFB or upon the consummation of the transactions
contemplated hereby.
(d) TAX OPINION. CFB and Summit shall have received the opinion of
Xxxxxxxxx & Xxxxxx P.L.L.P., dated the Closing Date, to the effect that (i)
the Merger will be treated for Federal income tax purposes as a
reorganization within the meaning of Section 368(a) of the Code, (ii) CFB and
Summit will each be a party to that reorganization within the meaning of
Section 368(b) of the Code, (iii) shareholders of Summit who exchange their
shares of Summit Common Stock for shares of CFB Common Stock will not
recognize gain or loss, for purposes of federal income tax, except to the
extent of the cash received in lieu of fractional shares, and (iv) Summit
will not recognize gain or loss, for purposes of federal income tax, as a
result of consummation of the Merger.
(e) LEGAL OPINION. Summit shall have received the opinion of
Xxxxxxxxx and Xxxxxx, P.L.L.P., counsel to CFB, dated the Closing Date, in
substantially the form shown on Exhibit 6.3, and such opinion shall not have
been withdrawn prior to the Effective Time.
ARTICLE 7
TERMINATION AND AMENDMENT
7.1 TERMINATION. This Agreement may be terminated in writing at any
time prior to the Effective Time, whether before or after approval of the
Merger by the stockholders of Summit or CFB, only in the following
circumstances:
(a) by mutual consent of CFB and Summit in a written instrument, if
the Board of Directors of each so determines by a vote of a majority of the
members of its entire Board;
(b) by either CFB or Summit if (i) any Requisite Regulatory
Approval shall have been denied; or (ii) any governmental entity of competent
jurisdiction shall have issued a final nonappealable order enjoining or
otherwise prohibiting the consummation of the transactions contemplated by
this Agreement;
29
(c) by either CFB or Summit if the Merger shall not have been
consummated on or before December 31, 1997, unless the failure of
consummation shall be due to the failure of the party seeking to terminate to
perform or observe in all material respects the covenants and agreements
hereunder to be performed or observed by such party;
(d) by either CFB or Summit if there shall have been a material
breach of any of the covenants or agreements set forth in this Agreement on
the part of the other party, which breach shall not have been cured before
closing or within twenty (20) business days following receipt by the
breaching party of written notice of such breach from the other party,
whichever occurs first; or
(e) by CFB pursuant to the terms of Section 4.3(d) or 4.3(e), as
applicable.
7.2 EFFECT OF TERMINATION. In the event of termination of this
Agreement by either CFB or Summit as provided in Section 7.1, this Agreement
shall forthwith become void and have no effect except that the obligations
under Sections 4.1(d), 4.2(h), 5.6, and 7.2 shall survive termination of this
Agreement; provided, however, that no party shall be relieved or released
from any liabilities or damages arising out of the willful breach by such
party of any provision of this Agreement.
7.3 AMENDMENT. This Agreement may be amended by the parties hereto, by
action taken or authorized by their respective Boards of Directors, at any
time before or after approval of the matters presented in connection with the
Merger by the stockholders of Summit and CFB, provided, however, that after
any such approval, no amendment shall be made which by law requires further
approval by such stockholders, without such further approval. This Agreement
may not be amended except by an instrument in writing signed on behalf of
each of the parties hereto.
7.4 EXTENSION; WAIVER. At any time prior to the Effective Time, the
parties hereto, by action taken or authorized by their respective Board of
Directors, may, to the extent legally allowed, (i) extend the time for the
performance of any of the obligations or other acts of the other parties
hereto; (ii) waive any inaccuracies in the representations and warranties
contained herein or in any of the Schedules; and (iii) waive compliance with
any of the agreements or conditions contained herein. Any agreement on the
part of a party hereto to any such extension or waiver shall be valid only if
set forth in a written instrument signed on behalf of such party.
30
ARTICLE 8
GENERAL PROVISIONS
8.1 NON-SURVIVAL OF REPRESENTATIONS AND WARRANTIES. No representation
or warranty contained in this Agreement shall survive the Merger or the
termination of this Agreement, except that Section 3.2, 4.2(c) - (f),
4.2(h) - (i), 5.6, 8.6 and 8.10 shall survive the Merger, and Sections 4.1(d),
4.2(h), 5.6 and 7.2 shall survive the termination of the Agreement.
8.2 NOTICES. All notices and other communications hereunder shall be
in writing and shall be deemed given when received by the parties at the
following addresses (or at such other address for a party as shall be
specified by like notice):
(a) if to CFB or Acquisition
Subsidiary, to: Community First Bankshares, Inc.
Attn: Xxxxxx X. Xxxxxxxxx, President
000 Xxxx Xxxxxx
Xxxxx, XX 00000
with copies to: Xxxxxx X. Xxxxxxx, Esq.
Xxxxxxxxx & Xxxxxx P.L.L.P.
0000 XXX Xxxxxx
00 Xxxxx 0xx Xxxxxx
Xxxxxxxxxxx, XX 00000-0000
and
(b) if to Summit, to: First National Summit Bankshares, Inc.
Attn: Xxxxx X. Xxxxx, D.V.M.
000 Xxxx Xxxxxx
Xxxxxxxx, XX 00000
with copies to: Xxxxxxx X. Xxxxxxxxx, Esq.
XxXxxxx & Xxxxx, L.L.P.
000 00xx Xxxxxx #0000
Xxxxxx, XX 00000
8.3 INTERPRETATION. When a reference is made in this Agreement to
Sections, Exhibits or Schedules, such reference shall be to a Section of or
Exhibit or Schedule to this Agreement unless otherwise indicated. The table
of contents and headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation
of this Agreement. Whenever the words "include," "includes" or "including"
are used in this Agreement, they shall be deemed to be followed by the words
"without limitation."
31
8.4 COUNTERPARTS. This Agreement may be executed in counterparts, all
of which shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each of the parties and
delivered to the other parties, it being understood that all parties need not
sign the same counterpart.
8.5 ENTIRE AGREEMENT: THIRD PARTY BENEFICIARIES; RIGHTS OF OWNERSHIP.
This Agreement (including the documents and the instruments referred to
herein) constitutes the entire agreement and supersedes all prior agreements
and understandings, both written and oral, among the parties with respect to
the subject matter hereof. This Agreement is not intended to confer upon any
person other than the parties hereto any rights or remedies hereunder, except
that Sections 3.2 and 4.2(i) are intended for the benefit of the Summit
shareholders; and Section 5.5 is intended for the benefit of employees of the
Bank. CFB shall be liable to such third-party beneficiaries for damages
caused by the breach of such Sections. No party shall have the right to
acquire or shall be deemed to have acquired shares of common stock of the
other party pursuant to the Merger until consummation thereof.
8.6 GOVERNING LAW. This Agreement shall be governed and construed in
accordance with the laws of the State of Colorado.
8.7 PUBLICITY. Except as otherwise required by law or the rules of the
NASDAQ or the National Association of Securities Dealers, so long as this
Agreement is in effect, neither CFB nor Summit shall, nor shall either of
them permit any of its subsidiaries to, issue or cause the publication of any
press release or other public announcement with respect to the transactions
contemplated by this Agreement without the consent of the other party, which
consent shall not be unreasonably withheld.
8.8 ASSIGNMENT. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto (whether by operation of law or otherwise) without the prior written
consent of the other parties. Subject to the preceding sentence, this
Agreement will be binding upon, inure to the benefit of and be enforceable by
the parties and their respective successors and assigns.
8.9 ENFORCEMENT OF AGREEMENT. Each of the parties hereto agrees that
it will not object if the other party seeks to obtain an injunction to
prevent breaches of this Agreement or to enforce specifically the terms and
provision hereof in any court in the United States or any state have
jurisdiction. The enforcing party shall be entitled to recover its attorneys
fees incurred in the successful enforcement of the terms and provisions of
this Agreement.
8.10 INDEMNIFICATION. CFB will indemnify the officers and directors of
Summit and Bank for all actions they take in the performance of their duties
as required by this Agreement to the same extent CFB indemnifies its officers
and directors for all actions they take in the performance of their duties as
required by this Agreement.
32
IN WITNESS WHEREOF, CFB, Acquisition Subsidiary and Summit have caused
this Agreement to be signed by their respective officers thereunto duly
authorized as of the date first above written.
COMMUNITY FIRST BANKSHARES, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Attest: Title: Chairman and President
/s/ Xxxx X. Xxxxxxxx
-------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Executive Vice President SUMMIT ACQUISITION CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: President
Attest:
/s/ Xxxx X. Xxxxxxxx
----------------------------
Name: Xxxx X. Xxxxxxxx
Title: Secretary/Treasurer FIRST NATIONAL SUMMIT BANKSHARES INC.
By: /s/ Xxxxx X. Xxxxx, D.V.M.
-------------------------------
Attest: Name: Xxxxx X. Xxxxx, D.V.M.
Title: Chairman
/s/ Alanson Hegemen
-----------------------
Name: Xxxxxxx Xxxxxxx
Title: Secretary
33
TABLE OF EXHIBITS
EXHIBIT A -- Articles of Merger
EXHIBIT B -- Summit Disclosure Schedule
EXHIBIT C -- CFB Disclosure Schedule
EXHIBIT 2.1(c) -- Illustrations of Exchange Rate Calculations
EXHIBIT 5.4 -- Affiliate Agreement
EXHIBIT 6.2 -- XxXxxxx & Xxxxx LLP Opinion
EXHIBIT 6.3 -- Xxxxxxxxx & Xxxxxx P.L.L.P. Opinion
FIRST AMENDMENT TO
AGREEMENT AND PLAN OF MERGER
THIS FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER is dated as of the
22 day of August, 1997 and made and entered into by and among COMMUNITY FIRST
BANKSHARES, INC., a Delaware corporation ("CFB"), SUMMIT ACQUISITION
CORPORATION, a Colorado corporation ("Acquisition Subsidiary") and FIRST
NATIONAL SUMMIT BANKSHARES, INC., a Colorado corporation ("Summit").
WHEREAS, the parties hereto are parties to an Agreement and Plan of
Merger dated August 22, 1997 (the "Merger Agreement"); and
WHEREAS, the parties desire to make certain changes to the Merger
Agreement, as hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing and intending to be
legally bound hereby, the parties hereto agree as follows:
1. AMENDMENT OF SECTION 1.3(a) OF THE MERGER AGREEMENT. Section 1.3(a)
of the Merger Agreement is amended and restated in its entirety as follows:
(a) At the Effective Time: (i) the separate existence of Summit
shall cease and Summit shall be merged with and into Acquisition
Subsidiary; (ii) the Articles of Incorporation of the Acquisition
Subsidiary, as in effect immediately prior to the Effective Time shall
be the Articles of Incorporation of the Surviving Corporation until
duly amended in accordance with applicable law; (iii) the By-laws of
the Acquisition Subsidiary, as in effect immediately prior to the
Effective Time shall be the By-laws of the Surviving Corporation until
amended in accordance with applicable law; (iv) CFB, as the holder of
all of the outstanding common stock of the Acquisition Subsidiary,
shall continue as sole shareholder of the Surviving Corporation;
(v) the holders of certificates representing shares of Summit
Preferred Stock (as defined in Section 2.1(a) below) shall cease to
have any rights as shareholders of Summit, except such rights, if any,
as they may have pursuant to Article 113 of the Colorado Act, and
their sole right shall be the right to receive in cancellation
thereof, the sum of One Hundred and no/100 Dollars ($100.00) per
share, plus accrued but unpaid dividends thereon to the Effective
Time; and (vi) the holders of certificates
35
thereon to the Effective Time; and (vi) the holders of certificates
representing shares of Summit Common Stock (as defined in Section
2.1(b) below) shall cease to have any rights as shareholders of Summit,
except such rights, if any, as they may have pursuant to Article 113 of
the Colorado Act, and their sole right shall be the right to receive (A)
the number of whole shares of CFB Common Stock (as defined in Section
2.1(b) below) into which their shares of Summit Common Stock have been
converted in the Merger as provided herein (together with any dividend
payments with respect thereto, to the extent provided in Section 2.2(c)
below), and (B) the cash value of any fraction of a share of CFB Common
Stock into which their shares of Summit Common Stock have been converted
as provided herein.
2. AMENDMENT TO SECTION 1.4 OF THE MERGER AGREEMENT. Section 1.4 of
the Merger Agreement is amended and restated in its entirety as follows:
1.4 CALCULATION OF SUMMIT VALUE. Subject to the provisions of
Section 4.1(k), as of the last day of the month immediately preceding
the Effective Time (the "Determination Date"), Summit shall prepare a
consolidated balance sheet of Summit in accordance with generally
accepted accounting principles ("GAAP"), but excluding the effects of
any adjustments otherwise required by FASB 115 and excluding any
footnotes that might be required to be included with such financial
statements (the "Determination Date Balance Sheet"), together with a
consolidated statement of income (the "Interim Income") for the period
from March 31, 1997 to the Determination Date (the "Interim Income
Statement"), such consolidated statement of income shall be prepared
in accordance with GAAP, but excluding the effects of any adjustments
otherwise required by FASB 115 and excluding any footnotes that might
be required to be included with such statements (the "Determination
Date Balance Sheet and Interim Income Statement are herein referred to
as the "Determination Date Financial Statements"). The Determination
Date Financial Statements shall be delivered to CFB as soon as they
are prepared (and in no event less than five (5) business days before
the Closing) so that CFB and its accountants may review
36
and confirm their accuracy. For purposes of this Agreement, the
"Summit Value" shall be equal to the total consolidated assets of
Summit minus the total consolidated liabilities of Summit, all as
reflected on the Determination Date Balance Sheet, prepared in
accordance with this Section 1.4. Total consolidated assets of Summit
shall be determined net of loan loss reserves. Total consolidated
liabilities of Summit shall include without limitation (i) provision
for taxes and the expense of the preparation of the final tax return
for Summit; (ii) value of the remaining 1997 annual fees due National
Commerce Bank Services, Inc. under the terms of the Consulting and
License Agreement dated September 8, 1995 by and between the Bank and
National Commerce Bank Services, Inc.; (iii) any remaining liabilities
under covenants not to compete entered into between the Bank and current
or former employees; (iv) liabilities to participants upon termination
of the ESI and DDI plans; and (v) any remaining liabilities under the
Service Agreement between the Bank and Xxxxxxxxx & Associates dated
January 7, 1997.
3. AMENDMENT OF SECTION 4.1(e) OF THE MERGER AGREEMENT. Section 4.1(e)
of the Merger Agreement is amended and restated in its entirety as follows:
(e) BENEFIT PLANS. Summit and the Bank will, to the extent
legally permissible, take all action necessary or required (i) to
terminate or amend, if requested by CFB and at CFB's cost, all
qualified pension and welfare benefit plans and all non-qualified
benefit plans and compensation arrangements as of the Effective Time;
(ii) to amend the Plans to comply with the provisions of the Tax
Reform Act of 1986, as amended, and regulations thereunder and other
applicable law as of the Effective Time; and (iii) to submit
application to the Internal Revenue Service for a favorable
determination letter for each of the Plans which is subject to the
qualification requirements of Section 401(a) of the Code prior to the
Effective Time. Notwithstanding the foregoing, Summit and the Bank
will terminate the Executive Supplemental Income and Director Deferred
Income plans, at the expense of Summit and the Bank,
37
and fully provide for any and all resulting liabilities as of the
Determination Date Financial Statement.
Except as set forth in Section 3.1(k) of the Summit Disclosure
Schedule, and except as otherwise required pursuant to this
Section 4.1(e), Summit agrees as to itself and the Bank that it will
not, without the prior written consent of CFB, (i) enter into, adopt,
amend (except as may be required by law) or terminate any Plan, as the
case may be, or any other employee benefit plan or any agreement,
arrangement, plan or policy between Summit or any of the Bank and one
or more of its directors or officers; provided, however, that Summit
or the Bank may amend any of the Plans to reduce or eliminate a
requirement of mandatory periodic contributions provided that if any
of the Plans do not have assets with an aggregate value that exceeds
the present value of its liability for accrued benefits, all as
determined on a termination basis, then Summit shall accrue on its
Determination Date Financial Statements the amount by which any of the
Plans are underfunded; (ii) except for normal increases in the
ordinary course of business consistent with past practice that in the
aggregate do not result in aggregate annual base compensation expense
to Summit in excess of 105% of that in effect as of December 31, 1996,
increase in any manner the compensation of any director, officer, or
employee, or pay any benefit not required by any plan and arrangement
as in effect as of the date hereof (including, without limitation, the
granting of stock options, stock appreciation rights, restricted
stock, restricted stock units or performance units or shares) or enter
into any contract, agreement, commitment or arrangement to do any of
the foregoing; or (iii) enter into or renew any contract, agreement,
commitment or arrangement providing for the payment to any director,
officer or employee of Summit or the Bank of compensation or benefits
contingent, or the terms of which are materially altered, upon the
occurrence of the Merger.
4. ESCROW AND INDEMNITY AGREEMENT. Concurrently with the execution and
delivery of this Amendment, CFB and Summit shall execute and deliver an
Agreement (the "Escrow Agreement") requiring indemnification of CFB by
shareholders of Summit against certain
38
losses or expenses as described therein, and providing for an escrow as of
the Effective Time in the aggregate value of Three Hundred Fifty Thousand
Dollars ($350,000), to be administered as provided therein. The obligations
of CFB under the Merger Agreement are expressly contingent upon the
execution, delivery and performance of the Escrow Agreement by Summit.
5. RELEASE. Concurrently with the execution and delivery of this
Amendment, CFB and Xx. Xxx X. Xxxxxxx ("Sellers") shall execute and deliver a
Release providing for the release by Sellers of any and all claims he may
have against Summit and the Bank, as provided therein. The obligations of
CFB under the Merger Agreement are expressly contingent upon the execution,
delivery and performance of the Release by Sellers.
Except as hereinabove set forth, there are no other changes to the Merger
Agreement, and the same is expressly ratified and confirmed.
IN WITNESS WHEREOF, CFB, Acquisition Subsidiary and Summit have
caused this Agreement to be signed by their respective officers thereunto
duly authorized as of the date first above written.
COMMUNITY FIRST BANKSHARES, INC.
By: /s/ Xxxx X. Xxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxx
Title: Senior Vice President
SUMMIT ACQUISITION CORPORATION
By: /s/ Xxxx X. Xxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxx
Title: Senior Vice President
FIRST NATIONAL SUMMIT BANKSHARES INC.
By: /s/ Xxxxx X. Xxxxx
---------------------------------
Name: Xxxxx X. Xxxxx, D.V.M.
Title: Chairman
39
