EXHIBIT 2.1
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First Amendment
Dated as of January 23, 1999
to the
Agreement and Plan of Merger
Dated as of May 25, 1998
by and between
Xxxxxx Bancorp, Inc.
and
T R Financial Corp.
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First Amendment to Agreement and Plan of Merger
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First Amendment, dated as of January 23, 1999 ("Amendment"), to the
Agreement and Plan of Merger, dated as of May 25, 1998 ("Merger Agreement"), by
and between Xxxxxx Bancorp, Inc. ("RBI") and T R Financial Corp. ("TRFC").
Introductory Statement
RBI and TRFC have entered into the Merger Agreement, and, pursuant to
Section 8.3 of the Merger Agreement, the parties thereto may from time to time
amend or modify the Merger Agreement in accordance with the provisions of
Section 8.3.
The Board of Directors of RBI and TRFC have approved and authorized
this Amendment, and all actions necessary or appropriate to make this Amendment
a valid agreement enforceable according to its terms have been taken and the
execution and delivery of this Amendment by RBI and TRFC have in all respects
been duly authorized by RBI and TRFC, respectively.
In consideration of their mutual promises and obligations hereunder,
RBI and TRFC hereby agree that, effective as of the date first written above,
the Merger Agreement shall be, and it hereby is, amended as follows:
1. Section 4.13(a) of the Merger Agreement is amended by replacing the
word "four" with the word "five" in both places where such word appears.
2. Section 4.13(b) of the Merger Agreement is amended by deleting the
phrase "as well as an employment agreement with each of two additional executive
officers of TRFC to be determined by RBI and TRFC" and by adding the following
sentence at the end thereof:
At the Effective Time, RBI shall enter into mutually acceptable
employment agreements with each of A. Xxxxxx Xxxx and Xxxxxx X.
Xxxxxx, with a period of employment of one year and with the titles
and base compensation set forth in Section 4.13(e) hereof.
3. A new Section 4.13(e) shall be added to the Merger Agreement, which
shall read as follows:
(e) As of the Effective Time, A. Xxxxxx Xxxx shall be elected or
appointed as the Executive Vice President and Special Transition
Officer of RBI and RBI Bank and shall receive a base salary at an
annual rate of no less than $200,000 per year. As of the Effective
Time, Xxxxxx X. Xxxxxx shall be elected or appointed as Senior Vice
President and Director of Corporate Strategic Planning of RBI and RBI
Bank and shall receive a base salary at an annual rate of no less than
$150,000 per year.
4. Section 4.16(b)(ii) of the Merger Agreement is amended by adding the
following language at the end of the first sentence:
; provided, however, that if the Closing Date shall occur after
December 31, 1998, the participants in the Performance Compensation
Plan and Performance Compensation Program shall be paid the full
amount due under the Plan and the Program for 1998 on or before
December 31, 1998, and the participants shall be paid an additional
amount on the Closing Date equal to the amount paid for 1998
multiplied by a fraction, the numerator of which is the number of days
in 1999 through the Closing Date of the Merger and the denominator of
which is 365. The total of such additional amounts to be paid on the
Closing Date shall not exceed, in the aggregate, $400,000, and if the
aggregate amount payable under the immediately preceding sentence
would otherwise exceed $400,000, the amount payable to each
participant shall be reduced proportionately so that the aggregate
amount so payable shall not exceed $400,000.
5. Section 4.17 of the Merger Agreement is amended by adding the
following sentence after the last sentence of Section 4.17:
Service on the Advisory Board will, for purposes of the TRFC Option
Plans and the RBI 1997 Stock-Based Incentive Plan, be treated as
service for RBI and/or RBI Bank for all such purposes, except to the
extent such treatment would prevent RBI's receipt of a letter from its
independent certified public accountants to the effect that the Merger
shall be qualified to be treated as a pooling-of-interests for
accounting purposes, as contemplated by Section 5.1(f) of this
Agreement.
6. A new Section 4.20 shall be added to the Merger Agreement, which shall
read as follows:
Section 4.20. TRFC Employee Stock Ownership Plan.
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Notwithstanding anything in this Agreement to the contrary, the T R
Financial Corp. Employee Stock Ownership Plan ("ESOP") shall be
terminated effective as of the Closing Date, after giving effect to
Section 16 of the ESOP.
7. Section 6.1(d) of the Merger Agreement is amended by replacing
"January 31, 1999" with "February 28, 1999."
8. Section 6.1(e) of the Merger Agreement is deleted in its entirety.
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9. Unless otherwise expressly defined in this Amendment or the context
otherwise requires, capitalized and other terms for which meanings are provided
in the Merger Agreement shall have such meanings when used in this Amendment.
10. Except as set forth in this Amendment, all other terms, covenants,
provisions and conditions of the Merger Agreement shall remain in full force and
effect.
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In Witness Whereof, the parties hereto have caused this Amendment to be
executed by their duly authorized officers as of the day and year first above
written.
Xxxxxx Bancorp, Inc.
By: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
Chairman of the Board, President and
Chief Executive Officer
T R Financial Corp.
By: /s/ Xxxx X. Xxxxxxxxx
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Xxxx X. Xxxxxxxxx
Chairman of the Board and
Chief Executive Officer
