EXECUTION COPY
AGREEMENT AND PLAN OF REORGANIZATION
By and Among
GOLD BANC CORPORATION, INC.
GOLD BANC ACQUISITION CORPORATION XI, INC.
and
AMERICAN BANCSHARES, INC.
September 6, 1999
_______________________________________________________________
_______________________________________________________________
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS . . . . . . . . . . . . . . . .. . . . . . . . . . 1
Section 1.1 Defined Terms . . . . . . . . . . . . . . . . 1
Section 1.2 Construction. . . . . . . . . . . . . . . . . 7
ARTICLE II
THE COMPANY MERGER . . . . . . . . . . . . . . . . . . . . . . 8
Section 2.1 The Merger. . . . . . . . . . . . . . . . . . 8
Section 2.2 Effective Time of the Company
Merger. . . . . . . . . . . . . . . . . . . . 8
Section 2.3 Articles of Incorporation, Bylaws,
Directors and Officers. . . . . . . . . . . . 8
Section 2.4 Effect of Company Merger. . . . . . . . . . . 9
Section 2.5 Further Assurances. . . . . . . . . . . . . . 9
Section 2.6 Conversion of Acquisition Subsidiary
Common Stock. . . . . . . . . . . . . . . . . 9
Section 2.7 Effect of Merger on Company Stock . . . . . . 9
Section 2.8 Exchange of Certificates. . . . . . . . . . .10
Section 2.9 Closing of the Company Transfer
Books . . . . . . . . . . . . . . . . . . . .11
Section 2.10 Voting and Dividends. . . . . . . . . . . . .11
Section 2.11 Stockholders' Approval. . . . . . . . . . . .11
Section 2.12 Adjustments . . . . . . . . . . . . . . . . .12
Section 2.13 Voting Agreements . . . . . . . . . . . . . .12
Section 2.14 Decrease in Exchange Ratio for
Failure to Achieve Financial
Measures. . . . . . . . . . . . . . . . . . .12
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY . . . . . . . .13
Section 3.1 Organization and Active Status. . . . . . . .13
Section 3.2 Capital Structure . . . . . . . . . . . . . .14
Section 3.3 Authority . . . . . . . . . . . . . . . . . .15
Section 3.4 Stockholder Approval. . . . . . . . . . . . .16
Section 3.5 No Violations . . . . . . . . . . . . . . . .16
Section 3.6 SEC Documents and Financial
Statements. . . . . . . . . . . . . . . . . .17
Section 3.7 Information Supplied. . . . . . . . . . . . .18
Section 3.8 Internal Controls and Records . . . . . . . .18
Section 3.9 Taxes . . . . . . . . . . . . . . . . . . . .18
Section 3.10 Title to Assets . . . . . . . . . . . . . . .19
Section 3.11 Leases. . . . . . . . . . . . . . . . . . . .19
Section 3.12 Intangible Properties . . . . . . . . . . . .20
Section 3.13 Regulatory Filings. . . . . . . . . . . . . .21
Section 3.14 Insurance . . . . . . . . . . . . . . . . . .21
Section 3.15 Compliance with ERISA . . . . . . . . . . . .21
Section 3.16 Environmental Laws. . . . . . . . . . . . . .22
Section 3.17 Labor Matters . . . . . . . . . . . . . . . .22
Section 3.18 Year 2000 Compliance. . . . . . . . . . . . .23
Section 3.19 Legal Proceedings . . . . . . . . . . . . . .23
Section 3.20 Material Contracts. . . . . . . . . . . . . .23
Section 3.21 Required Consents . . . . . . . . . . . . . .24
Section 3.22 Broker's Fees . . . . . . . . . . . . . . . .24
Section 3.23 No Material Adverse Change. . . . . . . . . .24
Section 3.24 Absence of Certain Events . . . . . . . . . .25
Section 3.25 Loans . . . . . . . . . . . . . . . . . . . .25
Section 3.26 Opinion of Financial Advisers . . . . . . . .26
Section 3.27 Accounting Matters. . . . . . . . . . . . . .26
Section 3.28 Beneficial Ownership of Gold Banc
Common Stock. . . . . . . . . . . . . . . . .26
Section 3.29 Undisclosed Liabilities; Adverse
Agreements. . . . . . . . . . . . . . . . . .26
Section 3.30 No Dissenter's Rights . . . . . . . . . . . .26
Section 3.31 Deductibility of Severance
Payments. . . . . . . . . . . . . . . . . . .27
Section 3.32 Full Disclosure . . . . . . . . . . . . . . .27
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF GOLD BANC. . . . . . . . . .27
Section 4.1 Corporate . . . . . . . . . . . . . . . . . .27
Section 4.2 Capital Structure . . . . . . . . . . . . . .28
Section 4.3 Authority . . . . . . . . . . . . . . . . . .28
Section 4.4 Stockholder Approval. . . . . . . . . . . . .30
Section 4.5 Status of Gold Banc Common Stock
to be Issued. . . . . . . . . . . . . . . . .30
Section 4.6 No Violation. . . . . . . . . . . . . . . . .31
Section 4.7 SEC Documents . . . . . . . . . . . . . . . .31
Section 4.8 Information Supplied. . . . . . . . . . . . .32
Section 4.9 Internal Controls and Records . . . . . . . .32
Section 4.10 Taxes . . . . . . . . . . . . . . . . . . . .32
Section 4.11 Regulatory Filings. . . . . . . . . . . . . .33
Section 4.12 Compliance with ERISA . . . . . . . . . . . .33
Section 4.13 Environmental Laws. . . . . . . . . . . . . .33
Section 4.14 Year 2000 Compliance. . . . . . . . . . . . .34
Section 4.15 Legal Proceedings . . . . . . . . . . . . . .34
Section 4.16 Required Consents . . . . . . . . . . . . . .34
Section 4.17 Broker's Fees . . . . . . . . . . . . . . . .35
Section 4.18 No Material Adverse Change. . . . . . . . . .35
Section 4.19 Undisclosed Liabilities;
Adverse Agreements. . . . . . . . . . . . . .35
Section 4.20 Disclosure. . . . . . . . . . . . . . . . . .35
Section 4.21 Ownership of Company Common
Stock. . . . . . . . . . . . . . . . . . . .35
Section 4.22 Material Contracts. . . . . . . . . . . . .35
Section 4.23 Continuation of the Bank's Identity
and Directors.. . . . . . . . . . . . . . . .36
ARTICLE V
COVENANTS OF THE COMPANY. . . . . . . . . . . . . . . . . . .36
Section 5.1 Affirmative Covenants of the
Company . . . . . . . . . . . . . . . . . . .36
Section 5.2 Negative Covenants of the
Company . . . . . . . . . . . . . . . . . . .36
Section 5.3 Inspection. . . . . . . . . . . . . . . . . .39
Section 5.4 Financial Statements and
Call Reports. . . . . . . . . . . . . . . . .39
Section 5.5 [Reserved]. . . . . . . . . . . . . . . . . .39
Section 5.6 Right to Attend Meetings. . . . . . . . . . .39
Section 5.7 Data Processing . . . . . . . . . . . . . . .39
Section 5.8 No Solicitation . . . . . . . . . . . . . . .39
Section 5.9 Regulatory Approvals. . . . . . . . . . . . .41
Section 5.10 Information . . . . . . . . . . . . . . . . .41
Section 5.11 Tax-Free Reorganization
Treatment . . . . . . . . . . . . . . . . . .41
Section 5.12 Pooling-of-Interests Accounting
Treatment . . . . . . . . . . . . . . . . . .41
Section 5.13 Cooperation by the Company. . . . . . . . . .41
Section 5.14 Year 2000 Compliance. . . . . . . . . . . . .41
Section 5.15 Proxy Statement and Registration
Statement . . . . . . . . . . . . . . . . . .41
Section 5.16 Confidentiality. . . . . . . . . . . . . . .42
Section 5.17 Employee Benefit Plans. . . . . . . . . . . .42
Section 5.18 Deductibility of Severance
Payments. . . . . . . . . . . . . . . . . . .43
Section 5.19 Company Employment Agreements . . . . . . . .43
Section 5.20 Achievement of Financial
Measures. . . . . . . . . . . . . . . . . . .43
Section 5.21 Company's Accounting of
Merger Expenses.. . . . . . . . . . . . . . .43
ARTICLE VI
COVENANTS OF GOLD BANC AND ACQUISITION SUBSIDIARY. . . . . . .43
Section 6.1 Regulatory Approvals. . . . . . . . . . . . .43
Section 6.2 Information . . . . . . . . . . . . . . . . .43
Section 6.3 Tax-Free Reorganization
Treatment . . . . . . . . . . . . . . . . . .44
Section 6.4 Employee Benefit Plans; Prior
Service Credit. . . . . . . . . . . . . . . .44
Section 6.5 Assumption of Company Stock
Options . . . . . . . . . . . . . . . . . . .44
Section 6.6 Confidentiality . . . . . . . . . . . . . . .46
Section 6.7 Pooling-of-Interest Accounting. . . . . . . .46
Section 6.8 Cooperation by Gold Banc and
Acquisition Subsidiary. . . . . . . . . . . .46
Section 6.9 Year 2000 Compliance. . . . . . . . . . . . .46
Section 6.10 Nasdaq Listing. . . . . . . . . . . . . . . .46
Section 6.11 Continuation of Business. . . . . . . . . .46
Section 6.12 Election of Bank Directors. . . . . . . . . .47
ARTICLE VII
CONDITIONS PRECEDENT TO OBLIGATIONSOF THE COMPANY. . . . . . .47
Section 7.1 Representations, Warranties and
Covenants . . . . . . . . . . . . . . . . . .47
Section 7.2 Regulatory Authority Approval . . . . . . . .47
Section 7.3 Litigation. . . . . . . . . . . . . . . . . .47
Section 7.4 Approval by Stockholders. . . . . . . . . . .47
Section 7.5 Adverse Changes . . . . . . . . . . . . . . .48
Section 7.6 Federal Tax Opinion . . . . . . . . . . . . .48
Section 7.7 Opinion of Counsel. . . . . . . . . . . . . .48
Section 7.8 Nasdaq Listing. . . . . . . . . . . . . . .48
Section 7.9 Market Price of Gold Banc
Common Stock. . . . . . . . . . . . . . . . .48
Section 7.10 Fairness Opinion. . . . . . . . . . . . . . .48
Section 7.11 Qualification for
Pooling-of-Interest Treatment.. . . . . . . .48
Section 7.12 Registration Statement. . . . . . . . . . . .48
Section 7.13 Payment of Merger Consideration.. . . . . . .49
ARTICLE VIII
CONDITIONS PRECEDENT TO OBLIGATIONS OF GOLD BANC AND
ACQUISITION SUBSIDIARY . . . . . . . . . . . . . . . . . . . .49
Section 8.1 Representations, Warranties and
Covenants . . . . . . . . . . . . . . . . . .49
Section 8.2 Adverse Changes . . . . . . . . . . . . . . .49
Section 8.3 Regulatory Authority Approval . . . . . . . .49
Section 8.4 Litigation. . . . . . . . . . . . . . . . . .49
Section 8.5 Financial Measures. . . . . . . . . . . . . .50
Section 8.6 Approval by Stockholders. . . . . . . . . . .50
Section 8.7 Tax Representations . . . . . . . . . . . . .50
Section 8.8 Affiliate Agreements. . . . . . . . . . . . .50
Section 8.9 Federal Tax Opinion . . . . . . . . . . . . .50
Section 8.10 Opinion of Counsel. . . . . . . . . . . . . .51
Section 8.11 Qualification for Pooling-of-Interest
Treatment . . . . . . . . . . . . . . . . . .51
Section 8.12 Deductibility of Severance
Payments. . . . . . . . . . . . . . . . . . .51
ARTICLE IX
NON-SURVIVAL OF REPRESENTATIONS AND WARRANTIES . . . . . . . .51
Section 9.1 No Survival of Representations
and Warranties. . . . . . . . . . . . . . . .51
ARTICLE X
SECURITIES LAWS MATTERS. . . . . . . . . . . . . . . . . . . .52
Section 10.1 Registration Statement and Proxy
Statement . . . . . . . . . . . . . . . . . .52
Section 10.2 State Securities Laws . . . . . . . . . . . .53
Section 10.3 Publication of Combined Financial
Results . . . . . . . . . . . . . . . . . . .53
Section 10.4 Indemnification by Gold Banc. . . . . . . . .53
Section 10.5 Indemnification by the Company. . . . . . . .53
Section 10.6 Indemnification by the Surviving
Corporation.. . . . . . . . . . . . . . . . .54
ARTICLE XI
TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . .54
Section 11.1 Basis for Termination . . . . . . . . . . . .54
Section 11.2 Effect of Termination . . . . . . . . . . . .56
Section 11.3 Termination Fee; Other Fees . . . . . . . . .56
Section 11.4 Specific Performance. . . . . . . . . . . . .57
ARTICLE XII
MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . .57
Section 12.1 Amendment . . . . . . . . . . . . . . . . . .57
Section 12.2 Extension: Waiver . . . . . . . . . . . . . .57
Section 12.3 Expenses. . . . . . . . . . . . . . . . . . .58
Section 12.4 Parties in Interest . . . . . . . . . . . . .58
Section 12.5 Entire Agreement; Amendments;
Waiver. . . . . . . . . . . . . . . . . . . .58
Section 12.6 Obligation of Gold Banc. . . . . . . . . . .58
Section 12.7 Notices . . . . . . . . . . . . . . . . . . .58
Section 12.8 Law Governing . . . . . . . . . . . . . . . .59
Section 12.9 Fiduciary Duties. . . . . . . . . . . . . . .59
Signature Pages . . . . . . . . . . . . . . . . . . . . . . . . . . S-1
LIST OF COMPANY SCHEDULES
Schedule 3.10 Owned Real Property
Schedule 3.11(a) Real Property Leases
Schedule 3.11(b) Personal Property Leases
Schedule 3.12(c) Intangible Property
Schedule 3.15 Employee Benefit Plans
Schedule 3.19 Pending Legal Actions
Schedule 3.20 Material Contracts
Schedule 3.21 Required Consents for Company
Schedule 3.22 Broker's Fees
Schedule 3.24 Absence of Certain Events
Schedule 3.31 Severance Payments
LIST OF GOLD BANC SCHEDULES
Schedule 4.1 Gold Banc Subsidiaries
Schedule 4.15 Gold Banc Actions Pending
Schedule 4.16 Gold Banc Required Consents
Schedule 4.22 Additional Material Contracts
LIST OF EXHIBITS
Exhibit A Form of Voting Agreement
Exhibit B Form of Affiliate Letter
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement"),
dated as of September 6, 1999, is made by and among GOLD BANC
CORPORATION, INC., a Kansas corporation ("Gold Banc"), GOLD BANC
ACQUISITION CORPORATION XI, INC., a Kansas corporation
("Acquisition Subsidiary"), and AMERICAN BANCSHARES, INC., a
Florida corporation (the "Company").
RECITALS
A. The Boards of Directors of Gold Banc, Acquisition
Subsidiary and the Company have approved and deem it advisable
and in the best interests of their respective companies and
stockholders that Gold Banc and the Company become affiliated
through the merger of the Company with and into Acquisition
Subsidiary in the manner hereinafter set forth (the "Merger" or
the "Company Merger").
B. As a condition to Gold Banc entering into this
Agreement, Gold Banc has required that the Significant
Shareholders (as defined herein) agree to enter into a Voting
Agreement dated the date hereof substantially in the form
attached hereto as Exhibit A.
C. The parties desire to make certain
representations, warranties and agreements in connection with the
Merger and also to prescribe certain conditions to the Merger.
AGREEMENT
ACCORDINGLY, in consideration of the premises, the
mutual covenants and agreements set forth herein and other good
and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Defined Terms. As used in this
Agreement, the following terms have the following meanings:
"280G Opinion Letter" shall have the meaning set forth
in Section 8.12 hereof.
"401(k) Plan" shall have the meaning set forth in
Section 5.17 hereof.
"ABICT" means the ABI Capital Trust, a Delaware
business trust formed by the Company on May 21, 1998.
"ABICT Common Securities" shall have the meaning set
forth in Section 3.2(c) hereof.
"ABICT Preferred Securities" shall have the meaning set
forth in Section 3.2(c) hereof.
"Acquisition Proposal" means any proposal for a tender
or exchange offer, a merger, consolidation or other business
combination, recapitalization, liquidation, dissolution or
similar transaction involving the Company or any Subsidiary, or
any proposal or offer to acquire in any manner, directly or
indirectly, a material equity interest in, or a material amount
of voting securities of (with the acquisition of beneficial
ownership of 15% or more of the Company's or any Subsidiary's
voting securities being deemed to be material for this purpose),
or, outside the ordinary course of business, any sale of a
significant amount of assets of, the Company or any Subsidiary,
or similar transactions involving the Company or any Subsidiary,
other than the Merger.
"Acquisition Subsidiary" means Gold Banc Acquisition
Corporation XI, Inc., a Kansas corporation, and its successors
and assigns.
"Acquisition Subsidiary Common Stock" shall have the
meaning set forth in Section 2.6 hereof.
"Action" means any action, suit, claim, demand,
petition, arbitration, inquiry, proceeding or investigation by or
before any Governmental Entity or arbitrator.
"Affiliate Letter" shall have the meaning set forth in
Section 8.8 hereof.
"Agreement" means this Agreement and Plan of
Reorganization.
"Average Gold Banc Stock Price" means the average of
the closing sales price of Gold Banc Common Stock as reported by
Nasdaq on each of the ten consecutive trading days immediately
preceding the third trading day prior to the Determination Date.
"Bank" means American Bank, a Florida banking
corporation.
"BHC Act" means the Banking Holding Company Act of
1956, as amended, and the regulations promulgated hereunder.
"Business Day" means a day other than Saturday, Sunday
or another day on which commercial banks in Kansas or Florida are
authorized or required by law to close.
"Closing" means the consummation of the transactions
contemplated hereby.
"Closing Date" shall have the meaning set forth in
Section 2.2 hereof.
"Code" means the Internal Revenue Code of 1986, as
amended, and the regulations promulgated thereunder.
"Company" means American Bancshares, Inc., a Florida
corporation, and its successors and assigns.
"Company Common Stock" means the common stock, par
value $1.175 per share, of the Company.
"Company Merger" shall have the meaning set forth in
the Recitals hereof.
"Company Plans" shall have the meaning set forth in
Section 3.15 hereof.
"Company Preferred Stock" means the preferred stock,
$1.175 par value per share, of the Company.
"Company SEC Documents" shall have the meaning set
forth in Section 3.6 hereof.
"Company Stock Options" shall have the meaning set
forth in Section 3.2(a) hereof.
"Company's Accountants" means PricewaterhouseCoopers
LLP, and its successors.
"Company's Counsel" means Carlton, Fields, Xxxx,
Xxxxxxxx, Xxxxx & Xxxxxx, P.A., and its successors.
"Confidentiality Agreement" means the Confidentiality
Agreement, dated August 2, 1999, by and between Gold Banc and the
Company.
"Consent" means a consent, approval, authorization,
waiver or notification from any Person or Governmental Entity.
"Contract" means any contract, agreement, mortgage,
deed of trust, indenture, instrument, promissory note, lease or
other legally binding commitment or arrangement.
"Damages" means all losses, claims, damages, costs,
fines, penalties, obligations, judgments, payments, liabilities,
deficiencies and diminutions in value (including those arising
out of any Action), together with all reasonable costs and
expenses (including reasonable outside attorneys' fees and
reasonable out-of-pocket expenses) incurred in connection with
any of the foregoing.
"Determination Date" means the date on which the last
of the following occurs: (i) the effective date (including the
expiration of any applicable waiting period by Law) of the last
required Consent or Order of any Governmental Entity having
authority over and approving or exempting the Merger, and (ii)
the date on which the stockholders of both the Company and Gold
Banc have both approved this Agreement and the Merger.
"Effective Time" shall have the meaning set forth in
Section 2.2 hereof.
"Exchange Act" means the Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated
thereunder as in effect at the applicable time.
"Exchange Agents" shall have the meaning set forth in
Section 2.8(a) hereof.
"Exchange Ratio" shall have the meaning set forth in
Section 2.7(b) hereof.
"ERISA" means the Employee Retirement Income Security
Act of 1974, as amended, and the regulations promulgated pursuant
thereto.
"Finance" means Freedom Finance Company, a Florida
corporation, and its successors and assigns.
"FBCA" means the Florida Business Corporation Act, as
amended from time to time.
"GAAP" means United States generally accepted
accounting principles, applied on a basis consistent with prior
periods, as in effect on the date of this Agreement, applicable
to banks, savings associations, or bank holding companies, as the
case may be. All references herein to financial statements
prepared in accordance with GAAP shall mean in accordance with
GAAP consistently applied throughout the period to which
reference is made.
"GBC Florida, Inc." shall have the meaning set forth in
Section 2.3(a) hereof.
"Gold Banc" means Gold Banc Corporation, Inc., a Kansas
corporation, and its successors and assigns.
"Gold Banc Common Stock" means the common stock, par
value $1.00 per share, of Gold Banc.
"Gold Banc Confidential Information" shall have the
meaning set forth in Section 5.16 hereof.
"Gold Banc Plans" shall have the meaning set forth in
Section 4.12 hereof.
"Gold Banc Preferred Stock" means the preferred stock,
no par value per share, of Gold Banc.
"Gold Banc SEC Documents" shall have the meaning set
forth in Section 4.7 hereof.
"Gold Banc Subsidiaries" shall have the meaning set
forth in Section 4.1(c) hereof.
"Gold Banc's Accountants" means KPMG LLC, and its
successors.
"Gold Banc's Counsel" means Xxxxxxx, Mag & Fizzell,
P.C., and its successors.
"Governmental Entity" means any federal, state or local
government, any of its subdivisions, agencies, authorities,
commissions, boards or bureaus, and any federal, state or local
court or tribunal.
"IRS" means the United States Internal Revenue Service.
"KGCC" means the Kansas General Corporation Code, as
amended from time to time.
"Laws" means any federal, state, local, municipal or
other constitution, statute, rule, regulation or ordinance or
common law of any state.
"Lease" means any Real Property Lease or Personal
Property Lease.
"Leased Facilities" shall have the meaning set forth in
Section 3.11(a) hereof.
"Leased Personal Property" shall have the meaning set
forth in Section 3.11(b) hereof.
"License" means any permit, license, variance,
exemption, order, franchise or approval from any Person or
Governmental Entity.
"Lien" means any lien, mortgage, deed of trust,
security interest, charge, claim, imposition, community property
interest, option, pledge, right of first refusal, retention of
title agreement, easement, encroachment, condition, reservation,
covenant or other encumbrance affecting title or the use, benefit
or value of the asset in question, including without limitation
any restriction on transfer, receipt of income or any other
attribute of ownership.
"Material Adverse Effect" or "Material Adverse Change"
to a party shall mean an event, change, or occurrence which,
individually or together with any other event, change, or
occurrence, has a material adverse effect on (i) the financial
position, business, or results of operations of a party and its
subsidiaries, taken as a whole, or (ii) the ability of such party
to perform its obligations under this Agreement or to consummate
the Merger or the transactions contemplated by this Agreement;
provided, however, that a Material Adverse Effect or Material
Adverse Change shall not include (a) changes in banking and
similar Laws of general application, or interpretations thereof
by Governmental Entities, (b) changes in GAAP or regulatory
accounting principles generally applicable to banks or bank
holding companies, (c) actions or omissions of a party (or its
subsidiaries) taken with the prior informed consent of the other
party in contemplation of the transactions contemplated by this
Agreement, (d) circumstances affecting Florida based or regional
banks generally, and (e) the Merger and compliance with the
provisions of this Agreement on the operating performance of the
Company or Gold Banc.
"Merger" shall have the meaning set forth in the
Recitals hereof.
"Nasdaq" means the Nasdaq National Market System.
"OREO" means other real estate owned.
"Order" means any order, judgment, injunction, decree,
determination or award of any Governmental Entity or arbitrator.
"Person" means any natural person, corporation,
partnership, limited liability company, trust, unincorporated
organization or other entity.
"Personal Property Leases" shall have the meaning set
forth in Section 3.11(b) hereof.
"Pooling Letter" shall have the meaning set forth in
Section 5.12(b) hereof.
"Proxy Statement" shall have the meaning set forth in
Section 10.1 hereof.
"Real Property Leases" shall have the meaning set forth
in Section 3.11(a) hereof.
"Registration Statement" shall have the meaning set
forth in Section 10.1 hereof.
"Rule 4460" shall have the meaning set forth in Section
4.3(a) hereof.
"SEC" means the United States Securities and Exchange
Commission and the staff thereof.
"Securities Act" means the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder as
in effect at the applicable time.
"Significant Stockholders" means, collectively, J. Xxxx
Xxxx, Xxxxxx X. Xxxxxx, Xxxxxxx I, Xxxxxx, Xxx X. Xxxxxx, Xxxx X.
Xxxxx, Xxxx X. Xxxxxx III, Xxxxxx X. Xxxxxx, R. Xxx Xxxxxx and
Xxxxxx X. Xxxx, and their heirs, successors and assigns.
"Subsidiaries" means, collectively, the Bank, ABICT and
Finance, and "Subsidiary" means any one of the Subsidiaries.
"Surviving Corporation" shall have the meaning set
forth in Section 2.1 hereof.
"Termination Fee" shall have the meaning set forth in
Section 11.3 hereof.
"Total Equity Capital" means, with respect to any
Person, the sum of outstanding capital stock, paid in capital,
retained earnings and current year earnings, all determined in
accordance with GAAP, but excluding any FAS 115 adjustments.
"Year 2000 Compliant" means the ability to perform date
sensitive functions for all dates before and after January 1,
2000.
"Year 2000 Problem" means the risk that computer
applications used by the applicable Person may be unable to
recognize and properly perform date sensitive functions involving
certain dates prior to and any date after December 31, 1999.
Section 1.2 Construction.
(a) Unless the context otherwise requires or unless
otherwise provided herein the terms defined in this
Agreement which refer to a particular agreement, instrument
or document also refer to and include all renewals,
extensions, modifications, amendments, and restatements of
such agreement, instrument or document.
(b) As used in this Agreement, accounting terms not
defined in Section 1.1, and accounting terms partly defined
in Section 1.1 to the extent not defined, shall have the
respective meanings given to them under GAAP.
(c) The words "hereof," "herein" and "hereunder" and
words of similar import when used in this Agreement shall
refer to this Agreement as a whole and not to any particular
provision of this Agreement. Section, subsection, schedule
and exhibit references are to this Agreement unless
otherwise specified. Whenever an item or items are listed
after the word "including," such listing is not intended to
be a listing that excludes items not listed.
(d) Words of the masculine gender shall be deemed and
construed to include correlative words of the feminine and
neuter genders. Unless the context shall otherwise
indicate, words importing the singular number shall include
the plural and vice versa, and words importing person shall
include individuals, corporations, partnerships, joint
ventures, associations, joint-stock companies, trusts,
unincorporated organizations and governments and any agency
or political subdivision thereof.
ARTICLE II
THE COMPANY MERGER
Section 2.1 The Merger. Upon the terms and subject
to the conditions of this Agreement and in accordance with the
KGCC and the FBCA, at the Effective Time, the Company shall be
merged with and into Acquisition Subsidiary and the separate
existence and corporate organization of the Company shall
thereupon cease and the Company and Acquisition Subsidiary shall
thereupon be a single corporation. Acquisition Subsidiary shall
be the surviving corporation in the Merger (the "Surviving
Corporation") and the separate corporate existence of Acquisition
Subsidiary shall continue unaffected and unimpaired by the
Merger.
Section 2.2 Effective Time of the Company Merger.
On the Closing Date (as hereinafter defined), officers of the
Company and Acquisition Subsidiary shall execute and acknowledge
appropriate certificates or articles of merger that shall be
filed with the Kansas Secretary of State and the Florida
Secretary of State in accordance with the KGCC and the FBCA. The
Merger and the other transactions contemplated by this Agreement
shall become effective on the date that such certificates or
articles of merger have been filed with the Kansas Secretary of
State and the Florida Secretary of State in accordance with the
KGCC and the FBCA (the "Effective Time"). The Closing shall be
on a day (the "Closing Date") occurring not later than ten (10)
days nor earlier than five (5) days after the Determination Date
at 10:00 a.m. at the office of Gold Banc's Counsel, which day
shall be specified by notice from Gold Banc to the Company (such
notice to be at least five (5) days in advance of such Closing
Date), or on such other date and at such other place and time as
the parties hereto may mutually agree. Unless the Company and
Gold Banc otherwise mutually agree in writing, the parties to
this Agreement shall use their best efforts to cause the
Effective Time to occur on the Closing Date or the next Business
Day, but in no event shall the Effective Time be more than three
Business Days following the Closing.
Section 2.3 Articles of Incorporation, Bylaws,
Directors and Officers.
(a) The Articles of Incorporation and Bylaws of
Acquisition Subsidiary as in effect immediately prior to the
Effective Time shall be and remain the Articles of
Incorporation and Bylaws of the Surviving Corporation from
and after the Effective Time until amended as provided by
Law, except that the name of the Surviving Corporation shall
be changed to "GBC Florida, Inc." at the Effective Time.
(b) The officers and directors of Acquisition
Subsidiary shall continue as the officers and directors of
the Surviving Corporation from and after the Effective Time,
subject to the Bylaws of the Surviving Corporation and
applicable Laws.
Section 2.4 Effect of Company Merger. From and
after the Effective Time, the Merger shall have the effects on
the Company and Acquisition Subsidiary set forth in Section
607.1106 of the FBCA and Section 17-6709 of the KGCC.
Section 2.5 Further Assurances. If at any time
after the Effective Time, Acquisition Subsidiary shall consider
it advisable that any further conveyances, agreements, documents,
instruments or assurances of law or other actions or things are
necessary or desirable to vest, perfect, confirm or record in
Acquisition Subsidiary the title to any property, rights,
privileges, powers, or franchises of the Company, the former
Board of Directors and officers of the Company may, and are
hereby authorized to, execute and deliver in the name and on
behalf of the Company or otherwise, any and all proper
conveyances, agreements, documents, instruments, and assurances
of law and do all things necessary or proper to vest, perfect, or
confirm title to such property, rights, privileges, powers and
franchises in Acquisition Subsidiary, and otherwise to carry out
the provisions of this Agreement.
Section 2.6 Conversion of Acquisition Subsidiary
Common Stock. At the Effective Time, each share of common stock,
$1.00 par value per share, of Acquisition Subsidiary
("Acquisition Subsidiary Common Stock") issued and outstanding
immediately prior to the Effective Time shall remain issued and
outstanding, and shall be unaffected by the Company Merger.
Section 2.7 Effect of Merger on Company Common
Stock. At the Effective Time, by virtue of the Merger and
without any action on the part of any holder thereof:
(a) Each share of Company Common Stock that is either
authorized but unissued or held in the treasury of the
Company, if any, or held by the Company or any Subsidiary
other than as trustee, fiduciary, nominee or some similar
capacity or for debts previously contracted shall be
canceled and retired and shall cease to exist from and after
the Effective Time, and no cash or other consideration shall
be delivered in exchange therefor.
(b) Each outstanding share of Company Common Stock
issued and outstanding at the Effective Time, of which
5,028,584 shares are issued and outstanding as of the date
hereof, shall cease to be outstanding and shall be converted
into and exchanged for the number of shares (the "Exchange
Ratio") of Gold Banc Common Stock determined by dividing
$18.18 by the Average Gold Banc Stock Price, with the
Exchange Ratio being rounded to four decimal places.
Notwithstanding the foregoing, (i) if the Average Gold Banc
Stock Price is greater than $13.75, then the Exchange Ratio
shall be $18.18 divided by $13.75 and (ii) if the Average
Gold Banc Stock Price is less than $11.00, then the Exchange
Ratio shall be $18.18 divided by $11.00, in either case
rounded to four decimal places. Fractions of shares
determined pursuant to this Section 2.7(b) shall be rounded
to three decimal places.
If the Average Gold Banc Stock Price on the Determination Date is
less than $10.00 or if the Company, the Bank or Finance fail to
achieve any of the financial measures set forth in Section 8.5
hereof, then Gold Banc and the Company shall in good faith
attempt to negotiate a mutually acceptable revised Exchange
Ratio; provided, however, that if a mutually acceptable revised
Exchange Ratio is not negotiated within five (5) Business Days
following the Determination Date, then the Company may terminate
this Agreement as provided in Section 11.1(h) hereof, or Gold
Banc may terminate this Agreement as provided in
Section 11.1(d)(i) hereof, respectively.
Section 2.8 Exchange of Certificates.
(a) Gold Banc, on behalf of Acquisition Subsidiary,
shall make available to American Stock Transfer and Trust
Co., which is hereby designated as the exchange agent (the
"Exchange Agents"), on or prior to the Closing Date, such
number of shares of Gold Banc Common Stock (and cash in lieu
of fractional shares) as shall be issuable or deliverable to
the holders of Company Common Stock in accordance with
Section 2.7 hereof. As soon as practicable after the
Effective Time, Gold Banc, on behalf of the Exchange Agents,
shall mail to each holder of record of a certificate that
immediately prior to the Closing Date represented
outstanding shares of Company Common Stock (i) a form letter
of transmittal and (ii) instructions for effecting the
surrender of certificates of Company Common Stock for
exchange into certificates of Gold Banc Common Stock. The
Gold Banc Common Stock into which the Company Common Stock
is being converted in accordance with Section 2.7(b) hereof
shall be delivered to each stockholder of the Company as set
forth in a letter of transmittal.
(b) Notwithstanding any other provision herein, no
fractional shares of Gold Banc Common Stock and no
certificates or scrip therefor or other evidence of
ownership thereof will be issued. All fractional shares of
Gold Banc Common Stock to which a holder of Company Common
Stock would otherwise be entitled to under Section 2.7
hereof shall be aggregated. If a fractional share results
from such aggregation, such stockholder shall be entitled,
after the Effective Time and upon the surrender of such
stockholder's certificate or certificates representing
shares of Company Common Stock, to receive from the Exchange
Agents an amount in cash in lieu of such fractional share
equal to the product of such fraction and the Average Gold
Banc Stock Price. Gold Banc, on behalf of Acquisition
Subsidiary, shall make available to the Exchange Agents, as
required from time to time, any cash necessary for this
purpose.
Section 2.9 Closing of the Company Transfer Books.
At the Effective Time, the stock transfer books of the Company
shall be closed and no transfer of Company Common Stock shall
thereafter be made.
Section 2.10 Voting and Dividends.
(a) Until sixty (60) days after the Effective Time,
former shareholders of the Company shall be entitled to vote
at any meeting of the stockholders of Gold Banc the number
of shares of Gold Banc Common Stock into which their shares
of the Company Common Stock are converted, regardless of
whether such holders have exchanged their certificates
representing Company Common Stock for certificates
representing Gold Banc Common Stock in accordance with the
provisions of this Agreement.
(b) No dividends or other distributions that are
declared after the Effective Time with respect to Gold Banc
Common Stock payable to holders of record thereof after the
Effective Time shall be paid to the Company stockholders
entitled to receive certificates representing Gold Banc
Common Stock until such stockholders surrender to the
Exchange Agent their certificates representing Company
Common Stock. Upon such surrender, there shall be paid to
the stockholder in whose name the certificates representing
such Gold Banc Common Stock shall be issued any dividends
which shall have become payable with respect to such Gold
Banc Common Stock between the Effective Time and the time of
such surrender, without interest. After such surrender
there shall also be paid to the stockholder in whose name
the certificates representing such Gold Banc Common Stock
shall be issued any dividend on such Gold Banc Common Stock
that shall have (i) a record date subsequent to the
Effective Time and prior to such surrender and (ii) a
payment date after such surrender, and such payment shall be
made on such payment date. In no event shall the
stockholders entitled to receive such dividends be entitled
to receive interest on such dividends.
Section 2.11 Stockholders' Approval.
(a) The Company agrees to submit this Agreement and
the transactions contemplated hereby to its stockholders for
approval to the extent required and as provided by Law and
the Articles of Incorporation and Bylaws of the Company and
in accordance with Section 10.1 hereof. The Company shall
use its reasonable best efforts to take all steps as shall
be required for the stockholders' meeting to obtain such
approval to be held as soon as reasonably practicable after
the effective date of the Registration Statement. Subject
to the exercise of the fiduciary duties of the Company's
Board of Directors, the Company shall, through its Board of
Directors, recommend that the stockholders of the Company
approve and adopt this Agreement and the transactions
contemplated hereby and shall use its reasonable best
efforts to secure such approval.
(b) Gold Banc agrees to submit this Agreement and the
transactions contemplated hereby to its stockholders for
approval to the extent required and as provided by Rule 4460
of the rules of Nasdaq. Subject to the exercise of
fiduciary duties by Gold Banc's Board of Directors, Gold
Banc shall, through its Board of Directors, recommend that
the stockholders of Gold Banc approve and adopt this
Agreement and the transactions contemplated hereby and shall
use its reasonable best efforts to secure such approval.
(c) Acquisition Subsidiary agrees to submit this
Agreement and the transactions contemplated hereby to its
sole stockholder for approval to the extent required and as
provided by Law, the Articles of Incorporation and Bylaws of
Acquisition Subsidiary. Subject to the exercise of
fiduciary duties by Acquisition Subsidiary's Board of
Directors, Acquisition Subsidiary shall, through its Board
of Directors, recommend that the stockholders of Acquisition
Subsidiary approve and adopt this Agreement and the
transactions contemplated hereby and shall use its
reasonable best efforts to secure such approval.
Section 2.12 Adjustments. If at any time during the
period between the date hereof and the Effective Time, any change
in the number of outstanding shares of Gold Banc Common Stock is
effected by reason of any reclassification, recapitalization,
stock split or combination, exchange or readjustment of shares,
or any stock dividend thereon with a record date (in the case of
a stock dividend) or the effective date thereof (in the case of a
stock split or combination, or similar recapitalization for which
a record date is not established) during such period, the
Exchange Ratio shall be proportionately adjusted on a pro rata
basis so as to prevent the dilutive effect of such transaction on
a percentage ownership basis.
Section 2.13 Voting Agreements. Contemporaneously
with the execution and delivery of this Agreement, each of the
Significant Stockholders and Gold Banc shall execute and deliver
the Voting Agreement in the form attached hereto as Exhibit A.
Section 2.14 Decrease in Exchange Ratio for Failure
to Achieve Financial Measures.
(a) If by the Closing Date any of the Company, the Bank
or Finance fail to achieve any of the financial measures set
forth in Section 8.5 hereof and Gold Banc desires to waive
compliance with such condition precedent and consummate the
Merger, then Gold Banc and the Company shall in good faith
attempt to negotiate a mutually acceptable revised Exchange
Ratio, which negotiations shall be based upon the formula set
forth in Section 2.14(b) hereof; provided, however, that if a
mutually acceptable revised Exchange Ratio is not negotiated
within five (5) Business Days, then Gold Banc may terminate this
Agreement as provided in Section 11.1(d)(i) hereof.
(b) The basis of such negotiations shall be that the
Exchange Ratio otherwise determined as set forth in Section
2.7(b) hereof would be decreased accordingly, on a pro rata
basis, as follows: (i) multiplying the aggregate dollar amount
of the shortfalls (with shortfalls in the reserves for loan and
lease losses requirements set forth in Section 8.5(a) and (c)
hereof treated on an after-tax basis) in financial performance
(without duplication) by 3.38 (the multiple of book value being
paid by Gold Banc); (ii) subtracting the product obtained in (i)
from $95,058,347 (which is not adjusted for the cash proceeds
from the exercise of stock options), the nominal purchase price
being paid by Gold Banc for the Company ($18.18 per share x
[5,028,584 outstanding shares of Company Common Stock + 200,148
shares under outstanding Company Stock Options]); (iii) dividing
the remainder obtained in (ii) by 5,228,732, the sum of the
outstanding shares of Company Common Stock and Company Stock
Options, rounded to two decimal places; and (iv) substituting the
quotient obtained in (iii) in place of "$18.18" everywhere it
appears in Section 2.7(b) hereof.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby makes the following representations
and warranties to Gold Banc and Acquisition Subsidiary, each of
which is true and correct on the date hereof and will be true and
correct as of the Effective Time, each of which shall be
unaffected by any investigation heretofore or hereafter made by
Gold Banc or Acquisition Subsidiary or their respective
representatives.
Section 3.1 Organization and Active Status.
(a) Company. The Company is a corporation duly
organized, validly existing and in active status under the
laws of the State of Florida with all requisite corporate
power and authority to own, lease and operate its properties
and conduct its business as it is now being conducted. The
Company is duly registered as a bank holding company under
the BHC Act. The Company has heretofore made available to
Gold Banc and Acquisition Subsidiary complete and correct
copies of its Articles of Incorporation and Bylaws. The
Company is duly qualified and in good standing in all states
where the conduct of its business so requires except where
failure to so qualify is not reasonably likely to have a
Material Adverse Effect on the Company or its Subsidiaries,
taken as a whole.
(b) Bank. The Bank is a wholly-owned subsidiary of
the Company and is a Florida banking corporation duly
organized, validly existing and in active status under the
laws of the State of Florida, with all requisite corporate
power and authority to own, lease and operate its properties
and conduct its business as it is now being conducted. The
Bank has heretofore made available to Gold Banc and
Acquisition Subsidiary complete and correct copies of its
Articles of Incorporation and Bylaws. The Bank is duly
qualified to do business in all states in which the conduct
of its business requires such qualification except where the
failure to be so qualified is not reasonably likely to have
a Material Adverse Effect on the Bank.
(c) ABICT. ABICT is a subsidiary of the Company and
is a Delaware business trust duly organized, validly
existing and in good standing under the laws of the State of
Delaware, with all requisite trust power and authority to
own, lease and operate its properties and conduct its
business as it is now being conducted. ABICT has heretofore
made available to Gold Banc and Acquisition Subsidiary
complete and correct copies of its Certificate of Trust and
Amended and Restated Trust Agreement. ABICT is duly
qualified to do business in all states in which the conduct
of its business requires such qualification except where the
failure to be so qualified is not reasonably likely to have
a Material Adverse Effect on ABICT.
(d) Finance. Finance is a subsidiary of the Company
and is a Florida corporation duly organized, validly
existing and in active status under the laws of the State of
Florida, with all requisite power and authority to own,
lease and operate its properties and conduct its business as
it is now being conducted. Finance has heretofore made
available to Gold Banc and Acquisition Subsidiary complete
and correct copies of its Articles of Incorporation and
Bylaws. Finance is duly qualified to do business in all
states in which the conduct of its business requires such
qualification except where the failure to be so qualified is
not reasonably likely to have a Material Adverse Effect on
Finance.
(e) The list of subsidiaries filed as Exhibit 21.1 to
the most recently filed Company SEC Document on Form 10-K
for the fiscal year ended December 31, 1998, is a true and
complete list of all of the Company's subsidiaries, direct
and indirect, as of the date hereof.
Section 3.2 Capital Structure.
(a) Company. As of the date hereof, the authorized
capital stock of the Company consists only of 20,000,000
shares of Company Common Stock, of which 5,028,584 shares of
Company Common Stock are issued and outstanding, and
5,000,000 shares of Company Preferred Stock, of which no
shares are issued and outstanding. All outstanding shares
of Company Common Stock are validly issued, fully paid and
nonassessable and are not subject to preemptive rights.
Except for 199,098 shares of the Company Common Stock
reserved for issuance upon the exercise of outstanding
options of the Company (the "Company Stock Options"), as of
the date of this Agreement, there are no outstanding or
authorized options, warrants, agreements, subscriptions,
calls, demands or rights of any character relating to the
capital stock of the Company, whether or not issued,
including without limitation securities convertible into or
evidencing the right to purchase any Company Common Stock,
Company Preferred Stock or any other securities of the
Company. There are not as of the date hereof and will not
be as of the Effective Time any stockholder agreements,
voting trusts or other agreements or understandings to which
the Company is a party or by which it is bound relating to
the voting of any shares of the capital stock of the Company
which will limit in any way the solicitation of proxies by
or on behalf of the Company or Gold Banc from, or the
casting of votes by, the stockholders of the Company with
respect to the Merger.
(b) Bank. The authorized capital stock of the Bank
consists only of 4,000,000 shares of common stock, par value
$1.175 per share, of which 2,382,570 shares are issued and
outstanding. All of the issued and outstanding shares of
common stock of the Bank are owned beneficially and of
record by the Company, free and clear of all Liens. All
outstanding shares of common stock of the Bank are validly
issued, fully paid and nonassessable. There are no
outstanding or authorized options, warrants, agreements,
subscriptions, calls, demands or rights of any character
relating to the capital stock of the Bank, whether or not
issued, including without limitation securities convertible
into or evidencing the right to purchase any common stock or
any other securities of the Bank.
(c) ABICT. The capital of ABICT consists only of
$503,000 of 8.5% Common Securities ("ABICT Common
Securities") issued and outstanding and $16,752,000 of 8.5%
Preferred Securities ("ABICT Preferred Securities") issued
and outstanding. All of the issued and outstanding ABICT
Common Securities are owned beneficially and of record by
the Company, free and clear of all Liens. All outstanding
ABICT Common Securities are validly issued, fully paid and
nonassessable. There are no outstanding or authorized
options, warrants, agreements, subscriptions, calls, demands
or rights of any character relating to the capital of ABICT,
whether or not issued, including without limitation
securities convertible into or evidencing the right to
purchase any ABICT Common Securities or ABICT Preferred
Securities or any other securities of ABICT.
(d) Finance. The authorized capital stock of Finance
consists only of 10,000 shares of common stock, par value
$0.01 per share, of which 100 shares are issued and
outstanding. All outstanding shares of common stock of
Finance are owned beneficially and of record by the Company,
free and clear of all Liens. All outstanding shares of
common stock of Finance are validly issued, fully paid and
nonassessable. There are no outstanding or authorized
options, warrants, agreements, subscriptions, calls, demands
or rights of any character relating to the capital stock of
Finance, whether or not issued, including without limitation
securities convertible into or evidencing the right to
purchase any common stock or any other securities of
Finance.
Section 3.3 Authority. The Company has all
requisite corporate power and authority to execute and deliver
this Agreement and all other agreements to be executed and
delivered by the Company pursuant hereto, and, subject, with
respect to consummation of the Merger, to approval of this
Agreement and the Merger by the stockholders of the Company in
accordance with the FBCA and the Company's Articles of
Incorporation and Bylaws, to perform its obligations hereunder
and thereunder, and to consummate the transactions contemplated
hereby and thereby. The execution and delivery of this Agreement
and all other agreements to be executed and delivered by the
Company pursuant hereto and thereto, the performance of its
obligations hereunder and thereunder, and the consummation of the
transactions contemplated hereby and thereby, have been duly
authorized by all necessary corporate action on the part of the
Company, subject, with respect to consummation of the Merger, to
such approval of this Agreement and the Merger by the
stockholders of the Company in accordance with the FBCA. This
Agreement has been, and all other agreements to be executed and
delivered by the Company will be prior to the Effective Time,
duly executed and delivered by the Company, subject, with respect
to consummation of the Merger, to approval of this Agreement and
the Merger by the stockholders of the Company in accordance with
the FBCA, and (assuming due authorization, execution, and
delivery by Gold Banc and Acquisition Subsidiary) constitutes, or
will constitute, the legal, valid and binding obligations of the
Company, enforceable against the Company in accordance with their
terms (except in all cases to the extent that such enforceability
may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, or similar Laws affecting the
enforcement of Creditors' rights and remedies generally and
except that the availability of the equitable remedy of specific
performance and injunctive relief is subject to the discretion of
the court before which any proceedings may be brought).
Section 3.4 Stockholder Approval. The Board of
Directors of the Company has directed or will direct that this
Agreement and the Merger contemplated hereby be submitted to the
Company's stockholders for approval at a meeting of such
stockholders and, except for adoption of this Agreement by the
requisite vote of the Company's stockholders, no other
stockholder action is necessary to approve this Agreement and to
consummate the Merger contemplated hereby. The Board of
Directors will recommend that the stockholders approve this
Agreement and the Merger contemplated hereby, subject to their
fiduciary duties. The affirmative vote of the holders of a
majority of the outstanding shares of Company Common Stock is the
only vote of the holders of any class or series of the Company's
capital stock necessary to approve this Agreement, and to
consummate the Merger and the transactions contemplated hereby.
No approval of a number of outstanding shares of capital stock of
the Company greater than that required by the relevant statutory
provisions is required for approval of this Agreement and the
consummation of the Merger and the transactions contemplated
hereby.
Section 3.5 No Violations.
(a) The execution and delivery of this Agreement and
all other agreements to be executed and delivered by the
Company pursuant hereto, the performance of the Company's
obligations hereunder and thereunder, and the consummation
of the transactions contemplated hereby and thereby, will
not conflict with, violate or constitute a breach or default
under (i) the Articles of Incorporation or Bylaws or other
organizational documents of the Company or any Subsidiary,
(ii) any provision of any Contract, Lien, Order or other
restriction of any kind or character to which the Company or
any Subsidiary is a party, or by which the Company or any
Subsidiary, or any of their assets, is bound or (iii) result
in the creation or imposition or any Lien upon the capital
stock or the assets of the Company or any Subsidiary; except
in the case of Sections 3.5 (a)(ii) and (iii), such
conflicts, violations, breaches or defaults which are not
reasonably likely to have a Material Adverse Effect on the
Company or its Subsidiaries, taken as a whole.
(b) The Company and the Subsidiaries are not currently
in violation, breach or default of, and the consummation of
the transactions contemplated hereby will not, subject to
obtaining all required regulatory approvals and making all
required state and federal securities law filings, cause any
violation, breach or default of, any Laws, Orders, or
Contracts applicable to the Company or any of the
Subsidiaries except for any violations, breaches or defaults
that are not reasonably likely to have a Material Adverse
Effect on the Company and its Subsidiaries, taken as a
whole.
(c) All Licenses required or necessary for the Company
or any of the Subsidiaries to carry on their respective
businesses as they are currently conducted have been
obtained and are in full force and effect. The Company and
the Subsidiaries are in compliance with all terms of the
Licenses, except where the failure to so comply is not
reasonably likely to have a Material Adverse Effect on the
Company and its Subsidiaries, taken as a whole.
Section 3.6 SEC Documents and Financial Statements.
The Company has filed and made available to Gold Banc and
Acquisition Subsidiary a true and complete copy of each report,
schedule, registration statement and definitive proxy statement
filed by the Company with the SEC since January 1, 1996 (the
"Company SEC Documents"), which are all the documents (other than
preliminary material) that the Company was required to file with
the SEC since such date. As of their respective dates, each of
the Company SEC Documents complied in all material respects with
the requirements of the Securities Act or the Exchange Act, as
the case may be, and the rules and regulations of the SEC
thereunder applicable to such Company SEC Documents, and none of
the Company SEC Documents contained any untrue statement of a
material fact or omitted 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 (except any statements or omissions therein which were
corrected or otherwise disclosed or updated in a subsequent
Company SEC Document). The audited financial statements and the
unaudited financial statements of the Company (including in each
case, the notes thereto) contained in the Company SEC Documents
filed on Form 10-K (or Form 10-KSB) or Form 10-Q (or Form
10-QSB), including Company SEC Documents filed subsequent to the
date hereof on such forms, (i) are or will be prepared in
accordance with GAAP (except as may be indicated in the notes to
such financial statements or, in the case of unaudited financial
statements, as permitted by Form 10-Q or Form 10-QSB, as the case
may be, and by Rule 10-01 of Regulation S-X promulgated by the
SEC), and (ii) present or will present fairly the consolidated
financial position of the Company and its Subsidiaries as of
their respective dates and the consolidated results of operations
and cash flows for the periods indicated (except that the
unaudited interim financial statements were or are subject to
normal and recurring year-end adjustments, and except for the
absence of certain footnote information in the unaudited
statements). Reserves for the Company's current and deferred
federal and state income tax liabilities have been accrued in
accordance with GAAP. Neither the Company nor either of the
Subsidiaries has any material liability or obligation of a type
which would be included in a balance sheet prepared in accordance
with GAAP whether related to tax or non-tax matters, accrued or
contingent, due or not yet due, liquidated or unliquidated, or
otherwise, except and to the extent disclosed or reflected in the
financial statements included in the Company SEC Documents.
Section 3.7 Information Supplied. None of the
information supplied or to be supplied by the Company for
inclusion or incorporation by reference in (i) the Registration
Statement will, at the time the Registration Statement becomes
effective under the Securities Act or at the Effective Time,
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 not misleading, and (ii) the Proxy
Statement will, at the date mailed to stockholders of the Company
and Gold Banc or at the times of the meetings of such
stockholders to be held in connection with the Merger, contain
any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order
to make the statements therein, in light of the circumstances
under which they are made, not misleading, other than information
supplied or required to be supplied by Gold Banc and Acquisition
Subsidiary.
Section 3.8 Internal Controls and Records. The
Company and the Subsidiaries maintain books of account which
accurately and validly reflect, in all material respects, all
loans, mortgages, collateral and other business transactions and
maintain accounting controls sufficient to ensure that all such
transactions are (i) in all material respects, executed in
accordance with its management's general or specific
authorization, and (ii) recorded in conformity with GAAP.
Section 3.9 Taxes. The Company and the Subsidiaries
each have timely filed, or requests for extensions have been
timely filed for, all tax returns required to be filed by them
through the date hereof, and the Company and the Subsidiaries
have timely paid and discharged all taxes shown to be due on such
returns and have timely paid all other taxes as are due, except
such as are being contested in good faith by appropriate
proceedings and with respect to which the Company or the
appropriate Subsidiary is maintaining reserves adequate for their
payment. The liability for taxes set forth on each such tax
return adequately reflects the taxes required to be reflected on
such tax return. The Company has not been advised that the IRS
or any other Governmental Entity or taxing authority or agency is
now asserting, either through audits, administrative proceedings,
court proceedings or otherwise, or threatening to assert against
the Company or any Subsidiary, any deficiency or claim for
additional taxes. Neither the Company nor any Subsidiary has
granted any waiver of any statute of limitations with respect to,
or any extension of a period for the assessments of, any tax.
There are no tax liens on any assets (excluding OREO properties)
of the Company or any Subsidiary other than Liens for taxes which
are not yet due and payable. Neither the Company nor any
Subsidiary has received a ruling or entered into an agreement
with the IRS or any other Governmental Entity or taxing authority
or agency that is reasonably likely to have a Material Adverse
Effect on the Company and its Subsidiaries, taken as a whole.
Immediately after the consummation of the Merger (and without
regard to any actions that may be taken by Gold Banc or the
Surviving Corporation following the Merger), the interest paid on
subordinated debentures issued by the Company to ABICT will be
deductible by the Surviving Corporation to the same extent
deductible by the Company as of the date hereof as interest
payments for federal income tax purposes.
Section 3.10 Title to Assets. The Company and the
Subsidiaries have good and marketable title to and possession of
all their respective material real and personal properties and
assets reflected in the Company's financial statements as being
owned by the Company or its Subsidiaries, in each case free and
clear of any Liens (except as reflected on the Company's
consolidated financial statements, and except for (i) Liens for
current taxes and assessments not yet due and payable,
(ii) inchoate mechanic and materialmen's Liens for construction
in progress, (iii) workmen's, repairmen's, warehousemen's, and
carrier's and other similar Liens arising in the ordinary course
of business, (iv) for depository institutions, pledges to secure
deposits, (v) other Liens incurred in the ordinary course of the
banking business, and (vi) such imperfections or irregularities
of title or Liens as do not materially affect the use of such
assets or property which are subject thereto, or affect the
business and operations of the Company and its Subsidiaries,
taken as a whole). Schedule 3.10 hereto contains or incorporates
by reference a complete list of all real property owned by the
Company or any subsidiary (other than OREO properties acquired
and held by the Bank in the ordinary course of business). Except
as set forth in the Company SEC Documents or Schedule 3.10, since
June 30, 1999, neither the Company nor any of the Subsidiaries
has entered into any agreement or commitment to sell any
property, real or personal, or any other assets of the Company or
any of the Subsidiaries other than in the ordinary course of
business, nor has the Company nor any of the Subsidiaries made
any commitment or taken or failed to take any action which would
cause any Lien to attach to any property, other than such Liens
which are not reasonably likely to have a Material Adverse Effect
on the Company and its Subsidiaries, taken as a whole.
Section 3.11 Leases.
(a) Schedule 3.11(a) hereof contains or incorporates
by reference a list of all real property leases (the "Real
Property Leases") to which the Company or any of the
Subsidiaries is a party, either as lessor or lessee (the
facilities subject to such Real Property Leases being
referred to as the "Leased Facilities"). Each of the Real
Property Leases is in full force and effect and neither the
Company nor any of the Subsidiaries nor, to the Company's
knowledge, any other party thereto has committed any default
thereunder. Neither the Company nor any of the
Subsidiaries is subject to any increase in rentals or other
costs in connection with any Leased Facility of which the
Company or any of the Subsidiaries is lessee which is not
provided for in the applicable Real Property Lease. No
Consent is necessary under the terms of any such Lease in
connection with the consummation of the transactions
contemplated hereby.
(b) Schedule 3.11(b) hereof contains a list of all
Leases with respect to personal property involving an
obligation in excess of $15,000 on an annual basis or
$30,000 in the aggregate (the "Personal Property Leases") to
which the Company or any of the Subsidiaries is a party,
either as lessor or lessee (the personal property subject to
such Personal Property Leases being referred to as the
"Leased Personal Property"). Each of the Personal Property
Leases is in full force and effect and neither the Company
nor any of the Subsidiaries nor, to the Company's knowledge,
any other party thereto has committed any material default
thereunder. Neither the Company nor any of the Subsidiaries
is subject to any increase in rentals or other costs in
connection with any Leased Personal Property of which the
Company or any of the Subsidiaries is lessee which is not
provided for in the applicable Personal Property Lease. No
Consent is necessary under the terms of any such Lease in
connection with the consummation of the transactions
contemplated hereby.
Section 3.12 Intangible Properties.
(a) None of the assets of the Company or any of the
Subsidiaries is subject to any patent or patent application,
copyright or copyright application, trademark or trademark
application, or similar evidence of ownership or the right
to the use thereof by any third party, except for software
duly licensed to the Company or its Subsidiaries in the
ordinary course of business.
(b) To their knowledge, neither the Company nor any of
the Subsidiaries has infringed upon any patent or patent
application, copyright or copyright application, trademark
or trademark application or trade name or other proprietary
or intellectual property right of any other person. Neither
the Company nor any Subsidiary has received any notice of a
claim of such infringement.
(c) Attached hereto as Schedule 3.12(c) is a true and
accurate list of all material patents, copyrights,
trademarks, trade names and service marks, both foreign and
domestic, which are necessary to operate or conduct the
business of the Company and its Subsidiaries. The Company
or one or more of the Subsidiaries owns or possesses
licenses or other legal rights, necessary to use such
patents, copyrights, trademarks, trade names and service
marks, except for those the absence of which is not
reasonably likely to have a Material Adverse Effect on the
Company and its Subsidiaries, taken as a whole.
(d) The Company and each of the Subsidiaries have the
right to use all data and information (including without
limitation confidential information, trade secrets and
know-how) necessary to permit the conduct from and after the
Effective Time of the business of the Company and each of
the Subsidiaries, as such business is and has been normally
conducted.
Section 3.13 Regulatory Filings. The Company and
each of the Subsidiaries have timely filed all notices, reports,
registrations and statements with all Governmental Entities and
have paid all fees and assessments due and payable in connection
therewith. Except for normal examinations and reviews conducted
by Governmental Entities in the regular course of the business of
the Company and the Subsidiaries, to the Company's knowledge no
Governmental Entity has initiated any proceeding or investigation
into the business or operations of the Company or any of the
Subsidiaries. To the Company's knowledge there is no unresolved
violation, criticism, or exception by any Governmental Entity
with respect to any written report or statement relating to any
examinations of the Company or any of the Subsidiaries. The
Company has made available to Gold Banc and Acquisition
Subsidiary all reports of examinations conducted by any
Governmental Entity with respect to the Company or any of the
Subsidiaries during the preceding three (3) years. To the extent
permitted by Law, the Company also will make available to Gold
Banc and Acquisition Subsidiary any subsequent reports of
examination received from any Governmental Entity between the
date hereof and the Effective Time.
Section 3.14 Insurance. Complete and correct copies
of all policies of fire, product or other liability, workers'
compensation and other similar forms of insurance owned or held
by the Company and the Subsidiaries have been delivered or made
available to Gold Banc and Acquisition Subsidiary. Subject to
expirations and renewals of insurance policies in the ordinary
course of business, all such policies are in full force and
effect, all premiums with respect thereto covering all periods up
to and including the date as of which this representation is
being made have been paid, and no notice of cancellation or
termination has been received with respect to any such policy.
The insurance policies to which the Company and the Subsidiaries
are parties are sufficient for compliance with all requirements
of Law and all material agreements to which the Company or any of
the Subsidiaries is a party, except for any noncompliance that
would not have a Material Adverse Effect on the Company and its
Subsidiaries, taken as a whole, and will be maintained by the
Company and the Subsidiaries until the Effective Time. Neither
the Company nor any of the Subsidiaries has been refused any
insurance with respect to any assets or operations, nor has
coverage been limited in any respect material to their operations
by any insurance carrier to which they have applied for any such
insurance or with which they have carried insurance during the
last three (3) years.
Section 3.15 Compliance with ERISA. Neither the
Company nor any of the Subsidiaries has established, maintained
or contributed at any time during the three-year period ending as
of the Effective Time to any employee benefit plan (as defined in
Sections 3(3) or 3(37) of ERISA) or any other similar plan with
respect to which any governmental filings are required, except
for the plans listed on Schedule 3.15 hereof (collectively, the
"Company Plans"). A true and accurate copy of each of the
Company Plans, any related trust agreements and each of the
amendments thereto has been provided to Gold Banc and Acquisition
Subsidiary together with (i) all determination letters received
in respect of any qualified plans, and (ii) all required reports
and supporting schedules filed with any Governmental Entity in
respect of the Company Plans for the three most recent years
ending on or before the date hereof. The Company Plans and each
fiduciary (as defined in Section 3(21) of ERISA) of the Company
Plans are in compliance in all material respects with all
applicable requirements (including nondiscrimination requirements
in effect as of the date hereof) of the Code, including, but not
limited to, Sections 79, 105, 106, 125, 401, 501, and 4975 of the
Code. For purposes of this Section 3.15, noncompliance with the
Code or ERISA is material if such noncompliance could have a
Material Adverse Effect on the condition of one or more of the
Company Plans or of the Company and the Subsidiaries, either as
of the date hereof or upon discovery of the noncompliance. All
required contributions to the Company Plans through the date
hereof have been made. The Company and the Subsidiaries (each
with respect to the Company Plans), as well as the Company Plans,
have no material current or, to the knowledge of the Company,
threatened liability of any kind to any Person, including but not
limited to any Governmental Entity, as of the date hereof, other
than for the payment of benefits in the ordinary course.
Section 3.16 Environmental Laws. To the best
knowledge of the Company: (i) the operations of the Company and
each of the Subsidiaries comply in all material respects with all
applicable federal, state and local environmental Laws and
neither the condition of any property owned by the Company or any
of the Subsidiaries nor the operation of the business of any of
such entities violates in any material respect any applicable
environmental Law; (ii) none of the operations of the Company or
any of the Subsidiaries is subject to any judicial or
administrative proceeding alleging the violation of any
environmental health or safety Law nor is it the subject of any
claim alleging damages to health or property pursuant to which
the Company or any of the Subsidiaries may be liable; (iii) none
of the operations of the Company or any of the Subsidiaries nor
any of the properties owned by the Company or any of the
Subsidiaries is the subject of any federal, state or local
investigation in evaluating whether any remedial action is needed
to respond to a release or threatened release of any hazardous
waste or substance from whatever source; (iv) no condition or
event has occurred which, with notice or the passage of time or
both, would constitute a material violation of any environmental
Law and neither the Company nor any of the Subsidiaries has any
Liability in connection with the storage or use of any
pollutants, contaminants or hazardous or toxic waste, substances
or materials on or at any location owned or leased by the Company
or any of the Subsidiaries; (v) there are no underground storage
tanks now or heretofore located on any real property owned or
leased by the Company or any of the Subsidiaries; (vi) neither
the Company nor any of the Subsidiaries has ever been notified by
a Governmental Entity, or any private party, that the Company or
any of the Subsidiaries is a potentially responsible party for
remedial costs spent addressing the release, or threat of a
release, of a hazardous substance into the environment pursuant
to the Comprehensive Environmental Response, Compensation or
Liability Act, 42 U.S.C. Sections 9601, et seq. or any
corresponding state law.
Section 3.17 Labor Matters.
(a) The Company and the Subsidiaries are in compliance
in all material respects with all Laws respecting employment
and employment practices, terms and conditions of employment
and wages and hours, and are not engaged in any unfair labor
practice, except for such matters as would not have a
Material Adverse Effect on the Company and its Subsidiaries,
taken as a whole.
(b) To the knowledge of the Company, there is no
unfair labor practice complaint against the Company or any
of the Subsidiaries pending before the National Labor
Relations Board.
(c) Neither the Company nor any of the Subsidiaries is
party to any collective bargaining agreements and there is
no labor strike, dispute, slowdown, representation campaign
or work stoppage actually pending or to the knowledge of the
Company threatened against or affecting the Company or any
of the Subsidiaries.
(d) No grievance or arbitration proceeding by any
employee is pending and, to the knowledge of the Company, no
claim therefor has been asserted against the Company or any
of the Subsidiaries.
(e) Neither the Company nor any of the Subsidiaries is
experiencing any material work stoppage.
Section 3.18 Year 2000 Compliance. Each of the
Company and the Subsidiaries has (i) initiated a review and
assessment of all areas material to its business and operations
(including those affected by suppliers and vendors) that would
reasonably be expected to be adversely affected by the Year 2000
Problem, (ii) developed a plan and time line for addressing the
Year 2000 Problem on a timely basis, and (iii) to date,
reasonably believes that all computer applications that are
material to the Company's and the Subsidiaries' respective
business and operations will be Year 2000 Compliant.
Section 3.19 Legal Proceedings. Except as disclosed
on or incorporated by reference in Schedule 3.19 hereof, there
are no Actions pending or, to the knowledge of the Company,
threatened against or affecting the properties, assets, rights or
business of the Company or any of the Subsidiaries, or the right
to carry on or conduct their business, other than collection and
foreclosure Actions by the Bank in the ordinary course of
business. To the knowledge of the Company, there are no Actions
pending or, threatened which could prevent or interfere with the
consummation of the transactions contemplated by this Agreement.
Section 3.20 Material Contracts. Except as set forth
on or incorporated by reference in Schedule 3.20 hereof, neither
the Company nor either of the Subsidiaries is a party to or
subject to any:
(a) employment, consulting, non-compete, severance or
similar contract;
(b) bonus, deferred compensation, equity incentive,
savings, profit sharing, severance pay, pension or
retirement plan or arrangement, except for the Company Plans
referenced in Section 3.15 hereof;
(c) agreement, contract or indenture relating to the
borrowing of money by the Company or the Subsidiaries,
excluding items made in the ordinary course of business (it
being understood, with reference to the Bank, that in the
ordinary course of business includes, among other things,
agreements, contracts, and other instruments and commitments
evidencing deposit liabilities, the purchase of federal
funds, sales of certificates of deposits, advances from the
Federal Reserve Bank or the Federal Home Loan Bank, fully
secured repurchase agreements, or agreements, contracts, and
other instruments, and commitments and understandings
relating to borrowings or guarantees made by the Bank in the
ordinary course of its business);
(d) other contract, agreement or other commitment
which is material to the business, operations, property,
prospects or assets or to the condition, financial or
otherwise, of the Company or any of the Subsidiaries or
which involve a payment by the Company or any of the
Subsidiaries of more than $15,000 on an annual basis, other
than loans and investments made in the ordinary course of
business.
Section 3.21 Required Consents. Other than (i) in
connection or compliance with the provisions of applicable state
corporate and securities Laws, the federal securities Laws, and
the rules of Nasdaq, (ii) Consents required from, or notification
to, or filings with Governmental Entities, and (iii) notices to
or filings with the IRS, or the Pension Benefit Guaranty
Corporation with respect to any employee benefit plans, and
except as set forth in Schedule 3.21 hereof, no Consent of any
Person or Governmental Entity is necessary for the consummation
by the Company or any of the Subsidiaries of this Agreement or
any of the transactions contemplated hereby, other than such
Consent, which if not obtained, would not be reasonably likely to
have a Material Adverse Effect on the Company.
Section 3.22 Broker's Fees. Other than the
engagement of Advest, Inc. described on Schedule 3.22 hereof,
neither the Company, the Subsidiaries nor any of the directors,
trustees, officers or employees of the Company or any of the
Subsidiaries, has employed any broker or finder, or incurred any
liability for any broker's fees, commissions or finder's fees in
connection with the transactions contemplated by this Agreement.
Section 3.23 No Material Adverse Change. From June
30, 1999 until the date hereof: there has been no Material
Adverse Change in the Company and its Subsidiaries, taken as a
whole or in the relationship of the Company or any of the
Subsidiaries with respect to their employees, creditors,
suppliers, distributors, customers or others with whom they have
business relationships which are reasonably likely to have a
Material Adverse Effect on the Company and its Subsidiaries,
taken as a whole.
Section 3.24 Absence of Certain Events. Except as
contemplated by this Agreement and set forth on or incorporated
by reference in Schedule 3.24 hereof, since June 30, 1999, the
Company and the Subsidiaries have conducted their business only
in the ordinary and usual course, and there has not been: (i)
any declaration, setting aside or payment of any dividend or
other distribution (whether in cash, stock or property) with
respect to the capital stock or other securities of, or other
ownership interests in, the Company, (ii) any amendment of any
term of any outstanding security of the Company or any of the
Subsidiaries, (iii) any repurchase, redemption or other
acquisition by the Company or any of the Subsidiaries of any
outstanding shares of capital stock or other securities of, or
other ownership interests in, the Company or any of the
Subsidiaries, (iv) any incurrence, assumption or guarantee by the
Company or any of the Subsidiaries of any indebtedness for
borrowed money (other than deposit liabilities, the purchase of
federal funds, sales of certificates of deposit, advances from
the Federal Reserve Bank or the Federal Home Loan Bank, or fully
secured repurchase agreements); (v) any creation or assumption
by the Company or any of the Subsidiaries of any Lien on any of
their assets other than any Lien that is not reasonably likely to
have a Material Adverse Effect on the Company or its
Subsidiaries, taken as a whole; (vi) any making of any material
loan, advance or capital contributions to or any material
investment in any Person except for loans and investments made in
the ordinary course of business; (vii) any material change in any
method of accounting or accounting practice; (viii) any (a) grant
of any severance or termination pay to any director, officer, or
employee of the Company or any of the Subsidiaries, (b) entering
into of any employment, deferred compensation or other similar
agreement (or any amendment to any such existing agreement) with
any director, officer or employee of the Company or any of the
Subsidiaries, (c) increase in benefits payable under any existing
severance or termination pay policies or employment agreements
with any director, officer or employee of the Company or any of
the Subsidiaries or (d) increase in compensation, bonus or other
benefits payable to any director, officer or employee of the
Company or any of the Subsidiaries other than normal annual and
merit raises consistent with past practices; or (ix) any other
transaction, commitment, dispute or other event or condition
(financial or otherwise) of any character, whether or not in the
ordinary course of business, individually or in the aggregate,
which is reasonably likely to have a Material Adverse Effect on
the Company and the Subsidiaries, taken as a whole.
Section 3.25 Loans.
(a) Neither the Bank nor Finance is a party to any
written or oral loan agreement, note or borrowing
arrangement which has been classified as "substandard",
"doubtful," "loss," "other loans especially mentioned" or
any comparable classifications by the Company, Finance or
the Bank or any Governmental Entity, except as reflected on
the OREO list or other list previously provided to Gold Banc
and Acquisition Subsidiary prior to the date hereof;
(b) Neither the Company nor any Subsidiary is a party
to any written or oral loan agreement, note, or borrowing
arrangement, including any loan guaranty, with any present
or former director or executive officer of the Company or
any Subsidiary, or any person, corporation or enterprise
controlling, controlled by or under common control with any
of the foregoing, except as reflected on the list previously
provided to Gold Banc and Acquisition Subsidiary prior to
the date hereof;
(c) Neither the Company nor any Subsidiary is a party
to any written or oral loan agreement, note or borrowing
arrangement in violation of any Law, which violation is
reasonably likely to result in a Material Adverse Effect on
the Company and the Subsidiaries, taken as a whole.
Section 3.26 Opinion of Financial Advisers. The
Company has received the written opinion of Advest, Inc.,
investment advisor to the Company, to the effect that, as of the
date hereof, the Exchange Ratio is fair, from a financial point
of view, to the holders of the Company Common Stock.
Section 3.27 Accounting Matters. Neither the Company
nor any of the Subsidiaries has through the date of this
Agreement taken or agreed to take any action that would prevent
Gold Banc from accounting for the business combination to be
effected by the Merger as a pooling-of-interests.
Section 3.28 Beneficial Ownership of Gold Banc Common
Stock. As of the date hereof, neither the Company nor any of the
Subsidiaries "beneficially owns" (as defined in Rule 13d-3 under
the Exchange Act) any Gold Banc Common Stock.
Section 3.29 Undisclosed Liabilities; Adverse
Agreements.
(a) Except as disclosed in the Company SEC Documents
or in the Schedules hereto, or as disclosed in the Company's
financial statements, there are no liabilities of the
Company or any of the Subsidiaries of any kind whatsoever,
whether accrued, contingent, absolute, determined,
determinable or otherwise, that are reasonably likely to
have a Material Adverse Effect on the Company and the
Subsidiaries, taken as a whole or which were fully incurred
or paid after June 30, 1999 except in the ordinary course of
business consistent with past practices.
(b) Neither the Company nor any of the Subsidiaries is
a party to any Order which is reasonably likely to result in
a Material Adverse Effect on the Company or any of the
Subsidiaries, taken as a whole.
Section 3.30 No Dissenter's Rights. The Company's
Common Stock is designated as a national market system security
on the interdealer quotation system by the National Association
of Securities Dealers, Inc. and, under Section 607.1302(4) of the
FBCA, the stockholders of the Company are not entitled to any
dissenter's rights in the Merger.
Section 3.31 Deductibility of Severance Payments.
Except as set forth on Schedule 3.31, no severance or other
payments to be made under the Employment Agreements or otherwise
by the Company, any of the Subsidiaries, Gold Banc, or any of
Gold Banc's subsidiaries in connection with the Merger or upon a
change in control of the Company will constitute non-deductible
"parachute payments" under Section 280G of the Code.
Section 3.32 Full Disclosure. Copies of all material
documents heretofore or hereafter delivered or made available to
Gold Banc or Acquisition Subsidiary pursuant hereto are and will
be complete and accurate. No representation or warranty of the
Company in this Agreement or any other material document
delivered pursuant hereto or any material statement, document,
certificate or exhibit furnished or to be furnished by the
Company pursuant to this Agreement or in connection with the
transactions contemplated hereby contains or will contain any
untrue statement of a material fact or omits or will omit a
material fact necessary to make the statements contained herein
or therein not misleading.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF GOLD BANC
Gold Banc hereby makes the following representations
and warranties to the Company, each of which is true and correct
on the date hereof and shall be true and correct as of the
Effective Time, each of which shall be unaffected by any
investigation heretofore or hereafter made by the Company or its
representatives.
Section 4.1 Corporate.
(a) Gold Banc. Gold Banc is a corporation duly
organized, validly existing and in good standing under the
laws of the State of Kansas with all requisite corporate
power and authority to own, lease and operate its properties
and conduct its business as it is now being conducted. Gold
Banc is duly registered as a bank holding company under the
BHC Act. Gold Banc is duly qualified and in good standing
in all states where the conduct of its business so requires
except where failure to so qualify is not reasonably likely
to have a Material Adverse Effect on Gold Banc.
(b) Acquisition Subsidiary. Acquisition Subsidiary is
a wholly-owned subsidiary of the Company and is a
corporation duly organized, validly existing and in good
standing under the laws of the State of Kansas. Acquisition
Subsidiary is duly qualified to do business in all states in
which the conduct of its business requires such
qualification except where the failure to be so qualified is
not reasonably likely to have a Material Adverse Effect on
Acquisition Subsidiary.
(c) Other Gold Banc Subsidiaries. Except as disclosed
in Schedule 4.1 hereto, the list of subsidiaries of Gold
Banc filed by Gold Banc with its most recent Gold Banc SEC
Document on Form 10-K for the fiscal year ended December 31,
1998, is a true and complete list of all of the Gold Banc
subsidiaries, direct and indirect (the "Gold Banc
Subsidiaries'), as of the date of this Agreement. Gold Banc
or one of its subsidiaries owns all of the issued and
outstanding shares of capital stock of each of the Gold Banc
subsidiaries. All shares of the capital stock of each of
the Gold Banc Subsidiaries are fully paid and nonassessable
under the applicable corporate Law of the jurisdiction in
which such Gold Banc Subsidiary is incorporated or organized
(except, in the case of Gold Banc Subsidiaries that are
national banks, for the assessment contemplated by
12 U.S.C. Section 55), and are owned by Gold Banc or one of
the other Gold Banc Subsidiaries. Each of the Gold Banc
Subsidiaries (i) is either a bank, a corporation, a limited
liability company or a Delaware business trust and is duly
organized, validly existing and in good standing under the
laws of the jurisdiction in which it is incorporated or
organized, (ii) is duly qualified to do business and in good
standing in all jurisdictions where the character of its
properties, assets owned, operated or leased by it, or the
nature of its activities make such qualification necessary,
except where the failure to be so qualified is not
reasonably likely to have a Material Adverse Effect on such
Gold Banc Subsidiary, and (iii) has the corporate power and
authority to own, lease and operate its properties and
assets and to carry on its business as now conducted.
Section 4.2 Capital Structure.
(a) Gold Banc. As of the date hereof, the authorized
capital stock of Gold Banc consists only of 50,000,000
shares of Gold Banc Common Stock and 50,000,000 shares of
Gold Banc Preferred Stock, of which 17,181,618 shares of
Gold Banc Common Stock and no shares of Gold Banc Preferred
Stock are issued and outstanding. All outstanding shares of
Gold Banc Common Stock are validly issued, fully paid and
nonassessable and are not subject to preemptive rights.
(b) Acquisition Subsidiary. The authorized capital
stock of Acquisition Subsidiary consists only of 1,000,000
shares of common stock, par value $1.00 per share, of which
1,000 shares are issued and outstanding. All of the issued
and outstanding shares of common stock of Acquisition
Subsidiary are owned beneficially and of record, free and
clear of all Liens, by Gold Banc. All outstanding shares of
common stock of Acquisition Subsidiary are validly issued,
fully paid and nonassessable.
Section 4.3 Authority.
(a) Gold Banc has all requisite corporate power and
authority to enter into this Agreement and all other
agreements to be executed and delivered by Gold Banc
pursuant hereto, and, subject, with respect to consummation
of the Merger, to approval of this Agreement and the Merger
by the stockholders of Gold Banc in accordance with Rule
4460 of the National Association of Securities Dealers'
rules for issuers under Nasdaq ("Rule 4460"), to perform its
obligations hereunder and thereunder, and to consummate the
transactions contemplated hereby and thereby. The execution
and delivery of this Agreement and all other agreements to
be executed and delivered by Gold Banc pursuant hereto and
thereto, the performance of Gold Banc's obligations
hereunder and thereunder, and the consummation of the
transactions contemplated hereby and thereby, have been duly
authorized by all necessary corporate action on the part of
Gold Banc, subject, with respect to consummation of the
Merger, to approval of this Agreement and the Merger by the
stockholders of Gold Banc in accordance with Rule 4460.
This Agreement has been, and all other agreements to be
executed and delivered by Gold Banc will be prior to the
Effective Time, duly executed and delivered by Gold Banc,
subject, with respect to consummation of the Merger, to such
approval of the Agreement and the Merger by the stockholders
of Gold Banc in accordance with Rule 4460, and (assuming due
authorization, execution, and delivery by the Company)
constitutes, or will constitute, the legal, valid and
binding obligations of Gold Banc, enforceable against Gold
Banc in accordance with their terms (except in all cases to
the extent that such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization,
moratorium, or similar Laws affecting the enforcement of
Creditor's rights and remedies generally and except that the
availability of the equitable remedy of specific performance
and injunctive relief is subject to the discretion of the
court before which any proceedings may be brought).
(b) Acquisition Subsidiary has all requisite corporate
power and authority to enter into this Agreement and all
other agreements to be executed and delivered by Acquisition
Subsidiary pursuant hereto and, subject, with respect to
consummation of the Merger, to approval of this Agreement
and the Merger by the stockholders of Acquisition Subsidiary
in accordance with the KGCC, to perform its obligations
hereunder and thereunder, and to consummate the transactions
contemplated hereby and thereby. The execution and delivery
of this Agreement and all other agreements to be executed
and delivered by Acquisition Subsidiary pursuant hereto and
thereto, the performance of Acquisition Subsidiary's
obligations hereunder and thereunder, and the consummation
of the transactions contemplated hereby and thereby, have
been duly authorized by all necessary corporate action on
the part of Acquisition Subsidiary, subject, with respect to
consummation of the Merger, to approval of this Agreement
and the Merger by the stockholders of Acquisition Subsidiary
in accordance with the KGCC. This Agreement has been, and
all other agreements to be executed and delivered by
Acquisition Subsidiary will be prior to the Effective Time,
duly executed and delivered by Acquisition Subsidiary,
subject, with respect to consummation of the Merger, to such
approval of the Agreement and the Merger by the stockholders
of Acquisition Subsidiary in accordance with the KGCC, and
(assuming due authorization, execution, and delivery by the
Company) constitutes, or will constitute, the legal, valid
and binding obligations of Acquisition Subsidiary,
enforceable against Acquisition Subsidiary in accordance
with their terms (except in all cases to the extent that
such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, or similar Laws
affecting the enforcement of Creditor's rights and remedies
generally and except that the availability of the equitable
remedy of specific performance and injunctive relief is
subject to the discretion of the court before which any
proceedings may be brought).
Section 4.4 Stockholder Approval.
(a) The Board of Directors of Gold Banc has directed,
or will direct, that this Agreement and the transactions
contemplated hereby be submitted to Gold Banc's stockholders
for approval at a meeting of such stockholders and, except
for adoption of this Agreement by the requisite vote of Gold
Banc's stockholders, no other Gold Banc stockholder action
is necessary to approve this Agreement and to consummate the
transactions contemplated hereby. The Board of Directors of
Gold Banc will recommend that the Gold Banc stockholders
approve the transactions contemplated hereby, subject to
their fiduciary duties. The affirmative vote of the holders
of a majority of the shares of Gold Banc Common Stock
represented at a meeting of Gold Banc's stockholders at
which a quorum is present is the only vote of the holders of
any class or series of Gold Banc's capital stock necessary
to approve this Agreement and to consummate the transactions
contemplated hereby. No approval of a number of outstanding
shares of capital stock of Gold Banc greater than that
required by Rule 4460 is required for approval of this
Agreement and the consummation of the transactions
contemplated hereby.
(b) The Board of Directors of Acquisition Subsidiary
has directed, or will direct, that this Agreement and the
transactions contemplated hereby be submitted to Acquisition
Subsidiary's stockholders for approval at a meeting of such
stockholders and, except for adoption of this Agreement by
the requisite vote of Acquisition Subsidiary's stockholders,
no other Acquisition Subsidiary stockholder action is
necessary to approve this Agreement and to consummate the
transactions contemplated hereby. The Board of Directors of
Acquisition Subsidiary will recommend that the Acquisition
Subsidiary stockholders approve the transactions
contemplated hereby, subject to their fiduciary duties. The
affirmative vote of the holders of a majority of the
outstanding shares of Acquisition Subsidiary Common Stock is
the only vote of the holders of any class or series of
Acquisition Subsidiary's capital stock necessary to approve
this Agreement and to consummate the transactions
contemplated hereby. No approval of a number of outstanding
shares of capital stock of Acquisition Subsidiary greater
than that required by the relevant statutory provisions is
required for approval of this Agreement and the consummation
of the transactions contemplated hereby.
Section 4.5 Status of Gold Banc Common Stock to be
Issued. The shares of Gold Banc Common Stock into which the
Company Common Stock are to be exchanged or converted pursuant to
this Agreement will be, when delivered as specified in this
Agreement, validly authorized and issued, fully paid and
nonassessable, and registered pursuant to an effective
registration statement under the Securities Act.
Section 4.6 No Violation.
(a) The execution and delivery of this Agreement and
all other agreements to be executed and delivered by Gold
Banc and Acquisition Subsidiary pursuant hereto, the
performance of the obligations of Gold Banc and Acquisition
Subsidiary hereunder and thereunder, and the consummation of
the transactions contemplated hereby and thereby, will not
conflict with, violate or constitute a breach or default
under (i) the Articles of Incorporation or Bylaws of Gold
Banc or Acquisition Subsidiary (ii) any provision of any
Contract, Lien, Order or other restriction of any kind or
character to which Gold Banc or Acquisition Subsidiary is a
party, or by which Gold Banc or Acquisition Subsidiary, or
any of their assets, is bound or (iii) result in the
creation or imposition of any Lien upon the capital stock or
the assets of Gold Banc or Acquisition Subsidiary except in
the case of Sections 4.6(a)(ii) and (iii), such conflicts,
violations, breaches or defaults which are not reasonably
likely to have a Material Adverse Effect on Gold Banc or
Acquisition Subsidiary, taken as a whole.
(b) Gold Banc and Acquisition Subsidiary are not
currently in violation, breach or default of, and the
consummation of the transactions contemplated hereby will
not, subject to obtaining all required regulatory approvals
and making all required state and federal securities law
filings, cause any violation, breach or default of, any
Laws, Orders, or Contracts applicable to Gold Banc or
Acquisition Subsidiary except for any violations, breaches
or defaults that are not reasonably likely to have a
Material Adverse Effect on Gold Banc and Acquisition
Subsidiary, taken as a whole.
(c) All Licenses required or necessary for Gold Banc
or Acquisition Subsidiary to carry on their respective
businesses as they are currently conducted have been
obtained and are in full force and effect. Gold Banc and
Acquisition Subsidiary are in compliance with all terms of
the Licenses, except where the failure to so comply is not
reasonably likely to have a Material Adverse Effect on Gold
Banc or Acquisition Subsidiary.
Section 4.7 SEC Documents. Gold Banc has made
available to the Company a true and complete copy of each report,
schedule, registration statement and definitive proxy statement
filed by Gold Banc with the SEC since January 1, 1996 (the "Gold
Banc SEC Documents") which are all the documents (other than
preliminary material) that Gold Banc was required to file with
the SEC since such date. As of their respective dates, each of
the Gold Banc SEC Documents complied in all material respects
with the requirements of the Securities Act or the Exchange Act,
as the case may be, and the rules and regulations of the SEC
thereunder applicable to such Gold Banc SEC Documents, and none
of the Gold Banc SEC Documents contained any untrue statement of
a material fact or omitted 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 (except any statements or omissions therein which were
corrected or otherwise disclosed or updated in a subsequent Gold
Banc SEC Document). The financial statements of Gold Banc
included in the Gold Banc SEC Documents complied as to form in
all material respects with the published rules and regulations of
the SEC with respect thereto, have been prepared in accordance
with GAAP (except as may be indicated in the notes thereto or, in
the case of the unaudited statements, as permitted by Rule 10-01
of Regulation S-X of the SEC) and fairly present in accordance
with applicable requirements of GAAP (subject, in the case of the
unaudited statements, to normal, recurring adjustments, none of
which were material) the consolidated financial position of Gold
Banc and its subsidiaries as of their respective dates and the
consolidated results of operations and the consolidated cash
flows of Gold Banc for the periods presented therein. Gold Banc
has no material liability or obligation of a type which would be
included in a balance sheet prepared in accordance with GAAP
whether related to tax or non-tax matters, accrued or contingent,
due or not yet due, liquidated or unliquidated, or otherwise,
except and to the extent disclosed or reflected in the financial
statements included in the Gold Banc SEC Documents.
Section 4.8 Information Supplied. When considered
in the aggregate, none of the information supplied or to be
supplied by Gold Banc for inclusion or incorporation by reference
in (i) the Registration Statement will, at the time the
Registration Statement becomes effective under the Securities Act
or at the Effective Time, 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 not
misleading, and (ii) the Proxy Statement will, at the date mailed
to stockholders of the Company and Gold Banc or at the times of
the meetings of such stockholders to be held in connection with
the Merger, contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of
the circumstances under which they are made, not misleading,
other than information supplied or required to be supplied by the
Company.
Section 4.9 Internal Controls and Records. Gold
Banc and the Gold Banc Subsidiaries maintain books of account
which accurately and validly reflect, in all material respects,
all loans, mortgages, collateral and other business transactions
and maintain accounting controls sufficient to ensure that all
such transactions are (i) in all material respects, executed in
accordance with its management's general or specific
authorization, and (ii) recorded in conformity with GAAP.
Section 4.10 Taxes. Gold Banc has timely filed, or
requests for extensions have been timely filed for, all tax
returns required to be filed by them through the date hereof, and
Gold Banc has timely paid and discharged all taxes shown to be
due and has timely paid all other taxes as are due, except that
such as are being contested in good faith by appropriate
proceedings and with respect to which Gold Banc or the
appropriate Gold Banc Subsidiary is maintaining reserves adequate
for their payment. The liability for taxes set forth on each
such tax return adequately reflects the taxes required to be
reflected on such tax return. Gold Banc has not been advised
that the IRS or any other Governmental Entity or taxing authority
or agency is now asserting, either through audits, administrative
proceedings, court proceedings or otherwise, or threatening to
assert against Gold Banc, any deficiency or claim for additional
taxes. Gold Banc has not granted any waiver of any statute of
limitations with respect to, or any extension of a period for the
assessments of, any tax. There are no tax liens on any assets
(excluding OREO properties) of Gold Banc other than liens for
taxes which are not yet due and payable. Gold Banc has not
received a ruling or entered into an agreement with the IRS or
any other Governmental Entity or taxing authority or agency that
would have a Material Adverse Effect on Gold Banc or the Gold
Banc Subsidiaries, taken as a whole.
Section 4.11 Regulatory Filings. Gold Banc has
timely filed all notices, reports, registrations and statements
with all Governmental Entities and has paid all fees and
assessments due and payable in connection therewith. Except for
normal examinations and reviews conducted by Governmental
Entities in the regular course of the business of Gold Banc, no
Governmental Entity has initiated any proceeding or investigation
into the business or operations of Gold Banc. To Gold Banc's
knowledge, there is no unresolved material violation, criticism,
or exception by any Governmental Entity with respect to any
written report or statement relating to any examinations of Gold
Banc. Gold Banc has made available to the Company all reports of
examinations conducted by any Governmental Entity with respect to
Gold Banc during the preceding three (3) years. To the extent
permitted by Law, Gold Banc will also make available to the
Company any subsequent reports of examination received from any
Governmental Entity between the date hereof and the Effective
Time.
Section 4.12 Compliance with ERISA. Each employee
benefit plan (as defined in Sections 3(3) or 3(37) of ERISA) of
Gold Banc or any of its subsidiaries or other similar plan of
Gold Banc or any of its subsidiaries with respect to which any
governmental filings are required (collectively, the "Gold Banc
Plans") and each fiduciary (as defined in Section 3(21) of ERISA)
of the Gold Banc Plans are in compliance in all material respects
with all applicable requirements (including nondiscrimination
requirements in effect as of the date hereof) of the Code,
including, but not limited to, Sections 79, 105, 106, 125, 401,
501, and 4975 of the Code. For purposes of this Section 4.12,
noncompliance with the Code or ERISA is material if such
noncompliance could have a Material Adverse Effect on the
condition of one or more of the Gold Banc Plans or of Gold Banc
and the Gold Banc Subsidiaries, taken as a whole, either as of
the date hereof or upon discovery of the noncompliance. All
required contributions to the Gold Banc Plans through the date
hereof have been made. Gold Banc and its subsidiaries (each with
respect to the Gold Banc Plans), as well as the Gold Banc Plans,
have no material current or, to the knowledge of Gold Banc,
threatened liability of any kind to any Person, including but not
limited to any Governmental Entity, as of the date hereof, other
than for the payment of benefits in the ordinary course.
Section 4.13 Environmental Laws. To the knowledge of
Gold Banc: (i) the operations of Gold Banc and each of the Gold
Banc Subsidiaries comply in all material respects with all
applicable federal, state and local environmental Laws and
neither the condition of any property owned by Gold Banc or any
of the Gold Banc Subsidiaries nor the operation of the business
of any of such entities violates in any material respect any
applicable environmental Law; (ii) none of the operations of Gold
Banc or any of the Gold Banc Subsidiaries is subject to any
judicial or administrative proceeding alleging the violation of
any environmental health or safety Law nor is it the subject of
any claim alleging damages to health or property pursuant to
which Gold Banc or any of the Gold Banc Subsidiaries may be
liable; (iii) none of the operations of Gold Banc or any of the
Gold Banc Subsidiaries nor any of the properties owned by Gold
Banc or any of the Gold Banc Subsidiaries is the subject of any
federal, state or local investigation in evaluating whether any
remedial action is needed to respond to a release or threatened
release of any hazardous waste or substance from whatever source;
(iv) no condition or event has occurred which, with notice or the
passage of time or both, would constitute a material violation of
any environmental Law and neither Gold Banc or any of the Gold
Banc Subsidiaries has any Liability in connection with the
storage or use of any pollutants, contaminants or hazardous or
toxic waste, substances or materials on or at any location owned
or leased by Gold Banc or any of the Gold Banc Subsidiaries; (v)
there are no underground storage tanks now or heretofore located
on any real property owned or leased by Gold Banc or any of the
Gold Banc Subsidiaries; (vi) neither Gold Banc nor any of the
Gold Banc Subsidiaries has ever been notified by a Governmental
Entity, or any private party, that Gold Banc or any of the Gold
Banc Subsidiaries is a potentially responsible party for remedial
costs spent addressing the release, or threat of a release, of a
hazardous substance into the environment pursuant to the
Comprehensive Environmental Response, Compensation or Liability
Act, 42 U.S.C. Sections 9601, et seq. or any corresponding state
law.
Section 4.14 Year 2000 Compliance. Each of Gold Banc
and the Gold Banc Subsidiaries has (i) initiated a review and
assessment of all areas material to its business and operations
(including those affected by suppliers and vendors) that would
reasonably be expected to be adversely affected by the Year 2000
Problem, (ii) developed a plan and time line for addressing the
Year 2000 Problem on a timely basis, and (iii) to date,
reasonably believes that all computer applications that are
material to Gold Banc's and the Gold Banc Subsidiaries'
respective business and operations will be Year 2000 Compliant.
Section 4.15 Legal Proceedings. Except as disclosed
on or incorporated by reference in Schedule 4.15 hereof, there
are no Actions pending or threatened against or affecting the
properties, assets, rights or business of Gold Banc or the Gold
Banc Subsidiaries, or the right to carry on or conduct its
business. There are no Actions pending or, to the knowledge of
Gold Banc, threatened which could prevent or interfere with the
consummation of the transactions contemplated by this Agreement.
Section 4.16 Required Consents. Other than (i) in
connection or compliance with the provisions of applicable state
corporate and securities Laws, the federal securities Laws, and
the rules of Nasdaq, (ii) Consents required from, or notification
to, or filings with Governmental Entities, and (iii) notices to
or filings with the IRS, or the Pension Benefit Guaranty
Corporation with respect to any employee benefit plans, and
except as set forth in Schedule 4.16 hereof, no Consent of any
Person or Governmental Entity is necessary for the consummation
by Gold Banc or Acquisition Subsidiary of this Agreement or any
of the transactions contemplated hereby other than any Consent,
which if not obtained, would not be reasonably likely to have a
Material Adverse Effect on Gold Banc.
Section 4.17 Broker's Fees. Neither Gold Banc,
Acquisition Subsidiary nor any of their respective directors,
trustees, officers or employees has employed any broker or
finder, or incurred any liability for any broker's fees,
commissions or finder's fees in connection with the transactions
contemplated by this Agreement.
Section 4.18 No Material Adverse Change. From June
30, 1999 until the date hereof, there has been no Material
Adverse Change in Gold Banc and its subsidiaries, taken as a
whole or in the relationship of Gold Banc or any of its
subsidiaries with respect to their employees, creditors,
suppliers, distributors, customers or others with whom they have
business relationships which are reasonably likely to have a
Material Adverse Effect on Gold Banc and its subsidiaries, taken
as a whole.
Section 4.19 Undisclosed Liabilities; Adverse
Agreements.
(a) Except as disclosed in the Gold Banc SEC Documents
or in the Schedules hereto, or as disclosed in Gold Banc's
financial statements, there are no liabilities of Gold Banc
or any of its subsidiaries of any kind whatsoever, whether
accrued, contingent, absolute, determined, determinable or
otherwise, that are reasonably likely to have a Material
Adverse Effect on Gold Banc and its subsidiaries, taken as a
whole or which were fully incurred or paid after June 30,
1999 or in the ordinary course of business consistent with
past practices.
(b) Neither Gold Banc nor any of its subsidiaries is a
party to any Order, which is reasonably likely to result in
a Material Adverse Effect on Gold Banc or any of its
Subsidiaries, taken as a whole.
Section 4.20 Disclosure. Copies of all material
documents heretofore or hereafter delivered or made available to
the Company pursuant hereto are and will be complete and
accurate. No representation or warranty of Gold Banc in this
Agreement or any other material document delivered pursuant
hereto or any material statement, document, certificate or
exhibit furnished or to be furnished by Gold Banc pursuant to
this Agreement or in connection with the transactions
contemplated hereby contains or will contain any untrue statement
of a material fact or omits or will omit a material fact
necessary to make the statements contained herein or therein not
misleading.
Section 4.21 Ownership of Company Common Stock. As
of the date of this Agreement, Gold Banc and its Subsidiaries
beneficially own, in the aggregate, no shares of the Company
Common Stock.
Section 4.22 Material Contracts. Except as disclosed
in Schedule 4.22 hereto, all material contracts, leases,
agreements, commitments, and other instruments to which Gold Banc
or any of the Gold Banc Subsidiaries are a party, and which are
required to be filed as an exhibit to a Gold Banc SEC Documents
under the rules and regulations of the SEC under the Securities
Act or the Exchange Act has been so filed.
Section 4.23 Continuation of the Bank's Identity and
Directors. Following the Effective Time, the Bank will maintain
its name and separate legal identity, and the members of the
Bank's board of directors will continue to serve as directors of
the Bank.
ARTICLE V
COVENANTS OF THE COMPANY
Section 5.1 Affirmative Covenants of the Company.
During the period from the date of this Agreement until the
earlier of the Effective Time or the termination of this
Agreement, unless the prior written consent of Gold Banc shall
have been obtained, and which consent will be given or denied
within two (2) Business Days of receipt of written request for
such consent, and except as otherwise expressly contemplated
herein, the Company shall, and shall cause each of the
Subsidiaries to, (i) operate its business only in the usual,
regular, and ordinary course, consistent with past practices,
(ii) use all reasonable efforts to preserve intact its business
organization and assets and maintain its rights and franchises;
(iii) use all reasonable efforts to preserve substantially the
Company's and each of the Subsidiaries' relationships with
suppliers, customers and employees, (iv) use all reasonable
efforts to perform the Company's and the Subsidiaries'
obligations under the Contracts and Licenses, (v) comply with all
applicable Laws, (vi) maintain as valid and enforceable all
policies of insurance as referenced in Section 3.14 hereof, (vii)
provide updates to Gold Banc and Acquisition Subsidiary with
respect to those loans reflected on the list previously provided
to Gold Banc and Acquisition Subsidiary as referenced on Schedule
3.25(b) hereto, and (viii) take no action which would be
reasonably likely to (a) materially adversely affect the ability
of any party to obtain any Consents required for the transactions
contemplated hereby, (b) prevent the transactions contemplated
hereby, including the Merger, from qualifying as a reorganization
within the meaning of Section 368(a) of the Code, or (c)
materially adversely affect the ability of any party to perform
its covenants and agreements under this Agreement.
Section 5.2 Negative Covenants of the Company.
Except as specifically permitted by this Agreement, from the date
of this Agreement until the earlier of the Effective Time or the
termination of this Agreement, the Company covenants and agrees
that it will not do or agree to do, or permit either of its
Subsidiaries to do or agree or commit to do, any of the following
without the prior written consent of Gold Banc, which consent
shall not be unreasonably withheld and which consent will be
given or denied within two (2) Business Days of receipt of
written request for such consent:
(a) make any single loan (or series of loans to the
same or related persons) or any commitment (verbal or
written) for a loan (or series of commitments to the same or
related persons) in an amount greater than $500,000.00 other
than renewals of existing loans or commitments to loan;
(b) purchase or invest in any securities, other than
United States government obligations or other securities
backed by the full faith and credit of the United States
having a maturity of not more than two (2) years from the
date of purchase;
(c) amend or adopt any employee benefit plan or grant
any increase in the rates of pay of their employees or any
increase in the compensation payable or to become payable,
if any, to any director, officer, trustee, employee or agent
thereof, or contribute to any pension plan or otherwise
increase in any amount the benefits or compensation of any
such director, officer, trustee, employee or agent under any
pension plan or other contract or commitment except for
regular annual and merit increases in accordance with past
practices or as may be required by Law;
(d) make any capital expenditure or enter into any
material contract or commitment (except as permitted in
subparagraphs (a) and (r) of this Section 5.2); involving an
obligation or commitment in excess of $25,000 or is not in
its usual and ordinary course of business and consistent
with past practices;
(e) declare or pay any dividend or make any other
distribution in respect of any capital stock of or other
beneficial interest in the Company or any of its
Subsidiaries, split, combine or reclassify any shares of its
capital stock or, directly or indirectly, redeem, purchase
or otherwise acquire any share of the capital stock of the
Company or either of its Subsidiaries, other than regular
distributions in accordance with the trust instrument of
ABICT and any dividends from the Bank to the Company to
cover Company's expenses consistent with past practices.
(f) amend the Articles of Incorporation, Bylaws or any
other governing document of the Company or any of its
Subsidiaries or make any change in the authorized, issued or
outstanding capital stock (or any change in the par value
thereof) of the Company or any of its Subsidiaries;
(g) acquire or purchase any assets of or make any
investment in any financial institution other than the
purchase of loans or participations therein in the ordinary
course of business, but subject to Section 5.2(a);
(h) enter into any new line of business;
(i) acquire or agree to acquire, by merging or
consolidating with, or by purchasing a substantial equity
interest in or a substantial portion of the assets of, or by
any other manner, any business or any corporation,
partnership, association or other business organization or
division thereof, or otherwise acquire any assets, which
would be material, individually or in the aggregate, to the
Company or any of its Subsidiaries, other than in connection
with foreclosures, settlements in lieu of foreclosure or
troubled loan or debt restructuring in the ordinary course
of business consistent with prudent banking practices;
(j) knowingly take any action that is intended or may
reasonably be expected 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 VII not
being satisfied, or in a violation of any provision of this
Agreement except, in every case, as may be required by
applicable Law;
(k) change its methods of accounting in effect on the
date hereof, except as required by changes in GAAP or
regulatory accounting principles as concurred with by the
Company's independent accountants;
(l) other than activities in the ordinary course of
business consistent with prior practice, sell, lease,
encumber, assign or otherwise dispose of any of its material
assets or properties;
(m) file any application to relocate or terminate the
operations of any banking office;
(n) make any equity investment or commitment to make
such an investment in real estate or in any real estate
development project, other than in connection with
foreclosures, settlements in lieu of foreclosure or troubled
loan or debt restructuring in the ordinary course of
business consistent with prudent banking practices;
(o) except in the ordinary course of business, create,
renew, amend or terminate or give notice of a proposed
renewal, amendment or termination of, any material Contract,
other than a loan or any commitment for a loan, to which the
Company or any of its Subsidiaries is a party or by which
the Company or any of its Subsidiaries or their respective
properties is bound;
(p) make any new loan or new extension of credit, or
commit to make any such loan or extension of credit, to any
director, officer or trustee of the Company or any of its
Subsidiaries without giving Gold Banc two days' notice in
advance of the approval of such loan or extension of credit
or commitment relating thereto;
(q) waive any material right, forgive any material
debt or release any material claim; or
(r) incur or guaranty any debt (other than instruments
and commitments evidencing deposit liabilities in the Bank,
the purchase of federal funds, sales of certificates of
deposits, borrowings from a Federal Reserve Bank or advances
from a Federal Home Loan Bank).
Section 5.3 Inspection. Between the date hereof and
the Closing Date and upon reasonable notice and subject to
applicable Laws, Gold Banc and its authorized representatives
shall be permitted full access during regular business hours to
all properties, books, records, contracts and documents of the
Company and any of its Subsidiaries. The Company shall furnish
to Gold Banc and its authorized representatives all information
with respect to the affairs of the Company and any of its
Subsidiaries as Gold Banc may reasonably request.
Section 5.4 Financial Statements and Call Reports.
From and after the date hereof through the Closing Date, to the
extent permitted by Law the Company shall deliver to Gold Banc
monthly reports of condition and income statements of the Bank
and shall deliver to Gold Banc copies of the call reports for the
Bank as filed with any regulatory agency promptly after such
filing.
Section 5.5 [Reserved.]
Section 5.6 Right to Attend Meetings. The Company
shall allow a representative of Gold Banc, who is a member of the
Board of Directors of Gold Banc and who has agreed to comply with
terms of the Confidentiality Agreement, to attend as an observer
all meetings of the Board of Directors of the Company and any
Subsidiary and all meetings of the committees of each such board,
including, without limitation, the audit and executive committees
thereof and any other meetings of the Company's or any
Subsidiary's officials at which policy is being made. The
Company and any Subsidiary shall give reasonable notice to Gold
Banc of any such meeting and, if known, the agenda for or
business to be discussed at such meeting. The Company and any
Subsidiary shall provide to Gold Banc all information provided to
the directors on all such boards and committees in connection
with all such meetings or otherwise provided to the directors and
shall provide any other financial reports or other analyses
prepared for senior management of the Company.
Section 5.7 Data Processing. The Company shall, and
shall cause each of its Subsidiaries to, cooperate with Gold Banc
in taking those planning actions necessary to be in a position to
convert, as soon as practicable after the Effective Time, its
data processing procedures and formats to procedures and formats
used by Gold Banc. Gold Banc shall provide such assistance and
consultation as the Company may reasonably require in such
planning process.
Section 5.8 No Solicitation.
(a) Except with respect to the Agreement and the
transactions contemplated hereby, none of the Company, any
Subsidiary, or any officer, director, trustee or employee
of, or any investment banker, attorney or other advisor or
representative of, the Company or any Subsidiary, shall,
directly or indirectly, (i) solicit, initiate or encourage
the submission of, any Acquisition Proposal, or approve or
authorize any Acquisition Proposal or (ii) participate in
any discussions or negotiations regarding or take any other
action to expedite any inquiries or the making of any
proposal that constitutes, or may reasonably be expected to
lead to, any Acquisition Proposal, or (iii) furnish to any
Person (other than Gold Banc, Acquisition Subsidiary, an
affiliate or associate of Gold Banc or Acquisition
Subsidiary or an officer, employee or other authorized
representative of Gold Banc, Acquisition Subsidiary or such
affiliate or associate or the Company's counsel, accountants
and financial adviser, solely for use in connection with the
transactions contemplated hereby) any information with
respect to the Company or any Subsidiary that may reasonably
be expected to lead to an Acquisition Proposal; provided,
however, that to the extent required by the fiduciary
obligations of the Board of Directors of the Company, as
determined in good faith by the Board of Directors based on
the advice of outside counsel, the Company may (A) in
response to an unsolicited request therefor, furnish
information with respect to the Company or any Subsidiary to
any Person pursuant to a customary confidentiality agreement
and discuss such information with such Person, (B) upon
receipt by the Company of an Acquisition Proposal, following
delivery to Gold Banc of the notice required pursuant to
Section 5.8(b) hereof, participate in negotiations regarding
such Acquisition Proposal, and (C) modify or withdraw its
recommendation that the stockholders of the Company vote in
favor of the Merger as contemplated by Section 2.11 hereof.
(b) The Company shall (i) promptly notify Gold Banc of
(A) the existence of any request for confidential
information with respect to, or the receipt of, any
Acquisition Proposal, (B) any inquiry or discussions with
respect to, or which would reasonably be expected to lead
to, any Acquisition Proposal, (C) the execution of a
confidentiality agreement with respect to an Acquisition
Proposal, (D) the execution of any agreement with respect to
the terms of an Acquisition Proposal, (E) the furnishing of
any information in contemplation of an Acquisition Proposal,
whether or not pursuant to a confidentiality agreement and
(F) any endorsement, approval or recommendation of an
Acquisition Proposal by the Company's Board of Directors or
any committee thereof, (ii) promptly describe to Gold Banc
the terms and conditions of any Acquisition Proposal in
reasonable detail, and (iii) furnish to Gold Banc all
information made available to any Person making the
Acquisition Proposal, or contemplating the making of an
Acquisition Proposal, subject to a customary confidentiality
agreement.
(c) Except as may be required in the exercise of the
fiduciary duties of the Board of Directors of the Company,
the Company shall not take any action that would enhance the
ability of any other Person making an Acquisition Proposal
to obtain the approval of the Company's stockholders or
otherwise consummate such Acquisition Proposal without also
taking a comparable action that would similarly enhance the
ability of Gold Banc to obtain any necessary approval of the
Company's stockholders of, and otherwise to consummate, the
Merger contemplated by this Agreement or an alternative
transaction initiated by Gold Banc, and concurrently
withdrawing any impediments thereto that do not similarly
impede such other Person.
Section 5.9 Regulatory Approvals. Subject to the
terms and conditions of this Agreement, the Company agrees to,
and to cause each of its Subsidiaries to, use its reasonable best
efforts to cooperate with Gold Banc in Gold Banc's efforts to
secure as expeditiously as practicable all the necessary
approvals, regulatory or otherwise, needed to consummate the
transactions contemplated herein.
Section 5.10 Information. The Company shall provide
such information and answer such inquiries as Gold Banc may
reasonably request or make concerning the subject matter of the
representations and warranties of the Company herein.
Section 5.11 Tax-Free Reorganization Treatment. The
Company shall not intentionally take or cause or permit to be
taken any action, whether before or after the Effective Time,
which would disqualify the Merger as a tax-free "reorganization"
within the meaning of Section 368(a) of the Code (subject to
required recognition of gain or loss with respect to cash paid
for fractional shares pursuant hereto).
Section 5.12 Pooling-of-Interests Accounting
Treatment.
(a) The Company shall not intentionally take or cause
or permit to be taken any action, whether before or after
the Effective Time, which would disqualify the Merger from
receiving pooling-of-interests accounting treatment.
(b) Within thirty (30) days after the execution and
delivery of this Agreement, the Company shall obtain from
the Company's Accountants and deliver to Gold Banc a letter
stating that the Company is eligible to participate in a
pooling-of-interests transaction (the "Pooling Letter").
Section 5.13 Cooperation by the Company. The Company
shall use all reasonable efforts to take all actions and to do
all things necessary or advisable to consummate the transactions
contemplated by this Agreement and to cooperate with Gold Banc
and Acquisition Subsidiary in connection therewith, including
using reasonable efforts to obtain all required Consents.
Section 5.14 Year 2000 Compliance. With respect to
all computer hardware, computer software applications, and Bank
services and products, the Company shall, and shall cause the
Bank to (i) use its best efforts to comply with all Federal
Financial Institution Examination Council Year 2000 regulations
and guidelines and (ii) take all action necessary to receive a
rating of "Satisfactory" or better on any Year 2000 compliance
examination conducted by its respective examining agencies.
Section 5.15 Proxy Statement and Registration
Statement. If at any time prior to the Effective Time any event
with respect to the Company or the Subsidiaries, or with respect
to other information supplied by the Company for inclusion in the
Proxy Statement or Registration Statement, shall occur which is
required to be described in an amendment of, or a supplement to,
the Proxy Statement or the Registration Statement, the Company
will promptly notify Gold Banc of such event and use all
commercially reasonable efforts to ensure that such event will be
so described, and that such amendment or supplement be promptly
filed with the SEC and, as required by law, disseminated to the
stockholders of the Company. The Company shall use all
reasonable efforts to ensure that the Proxy Statement, insofar as
it relates to the Company or the Subsidiaries or other
information supplied by the Company for inclusion therein, will
comply as to form in all material respects with the provisions of
the Exchange Act and the rules and regulations thereunder at the
time of the mailing of the Proxy Statement or any supplement
thereof.
Section 5.16 Confidentiality. Except as and to the
extent required by Laws, the Company and the Subsidiaries will
not disclose or use, and will direct their representatives not to
disclose or use to the detriment of Gold Banc or any of its
subsidiaries any Gold Banc Confidential Information furnished, or
to be furnished, to the Company, any of its subsidiaries or their
representatives at any time or in any manner other than in
connection with the evaluation of the transactions contemplated
herein. "Gold Banc Confidential Information" includes any
information about Gold Banc or its subsidiaries and their
business unless (a) such information is already known to the
Company, any of its subsidiaries or their representatives not
bound by a duty of confidentiality or such information becomes
publicly available through no fault of the Company, any of its
subsidiaries or their representatives, (b) the use of such
information is necessary or appropriate in making any filing or
obtaining any consent or approval required for the consummation
of the transactions contemplated herein, or (c) the furnishing or
use of such information is required by or necessary or
appropriate in connection with legal proceedings. Following the
termination of this Agreement, upon written request of Gold Banc,
each of the Company and the Subsidiaries will promptly return to
Gold Banc or destroy any Gold Banc Confidential Information in
its possession and certify in writing to Gold Banc that it has so
returned or destroyed such Gold Banc Confidential Information.
Section 5.17 Employee Benefit Plans. The Company
shall, prior to the Closing Date, adopt any and all resolutions
and take all other actions that are necessary or appropriate to
(i) make the necessary contributions to the Company Profit
Sharing 401(k) Plan (the "401(k) Plan") to satisfy the Company's
401(k) safe harbor contribution obligation for the partial plan
year ending on the 401(k) Plan termination date; (ii) except as
set forth immediately above in (i) of this paragraph, cease all
other contributions to the 401(k) Plan as of the day before the
Closing Date; (iii) terminate the 401(k) Plan and fully vest all
participant account balances in such plan as of the day before
the Closing Date; (iv) resign as plan administrator of the 401(k)
Plan; and (v) secure the resignation of the current trustees of
the 401(k) Plan. The Surviving Corporation shall (i) assume full
responsibility and bear full expense in amending the 401(k) Plan
following the Closing Date in such manner as is necessary for the
401(k) Plan to be in compliance with all applicable laws as of
the 401(k) Plan's termination date and (ii) apply for and obtain
a favorable determination letter from the IRS following which it
will distribute the assets of the 401(k) Plan. Gold Banc agrees
to accept its appointment, or will appoint an affiliate
corporation, as successor plan trustee and successor plan
administrator.
Section 5.18 Deductibility of Severance Payments.
(a) The Company shall, and shall cause each of the
Subsidiaries to, ensure that no severance or other payments
made by the Company or any of the Subsidiaries constitute
non-deductible "parachute payments" under Section 280G of
the Code.
(b) The Company shall obtain and deliver to Gold Banc
on or prior to the Closing Date the 280G Opinion Letter
contemplated by Section 8.12 hereof.
Section 5.19 Company Employment Agreements. On or
prior to the Closing Date, the Company and the Subsidiaries will
pay or cause to be paid all amounts due under any Employment
Agreement as a result of the Merger or the change in control of
the Company.
Section 5.20 Achievement of Financial Measures. The
Company shall use its reasonable best efforts, and shall cause
the Bank and Finance to use their reasonable best efforts, to
cause the Company, the Bank and Finance to satisfy the financial
measures set forth in Section 8.5 hereof by the Closing Date.
Section 5.21 Company's Accounting of Merger Expenses.
The Company shall defer recognition of all of its out-of-pocket
expenses relating to the Merger (including, without limitation,
the fees and expenses of the Company's Counsel, the Company's
Accountants and Advest, Inc., and all severance payments), and
account for such expenses as pooling costs. The Company shall
not recognize such expenses in its monthly income statements and
such expenses shall not be included in the calculation of the
financial measures set forth in Section 8.5 hereof.
ARTICLE VI
COVENANTS OF GOLD BANC AND ACQUISITION SUBSIDIARY
Section 6.1 Regulatory Approvals. Subject to the
terms and conditions of this Agreement, Gold Banc and Acquisition
Subsidiary agree to use their reasonable best efforts to secure
as expeditiously as practicable all the necessary approvals,
regulatory or otherwise, needed to consummate the transactions
contemplated herein and agree to exercise best efforts to file
applications relating to such approvals within thirty (30) days
from the date hereof or as soon thereafter it is reasonably
possible. Gold Banc and Acquisition Subsidiary shall provide to
Company's Counsel a copy of all applications for such approvals
and shall keep such counsel or the Company advised of the status
of the regulatory review process.
Section 6.2 Information. Gold Banc and Acquisition
Subsidiary shall provide such information and answer such
inquiries as the Company may reasonably request or make
concerning the subject matter of the representations and
warranties of Gold Banc and Acquisition Subsidiary herein.
Section 6.3 Tax-Free Reorganization Treatment.
Neither Gold Banc nor Acquisition Subsidiary shall intentionally
take or cause to be taken any action, whether before or after the
Effective Time, which would disqualify the Merger as a tax-free
"reorganization" within the meaning of Section 368(a) of the
Code.
Section 6.4 Employee Benefit Plans; Prior Service
Credit. Employees of the Company or a Subsidiary shall be
eligible to participate in all Gold Banc employee benefit plans
(as defined in Sections 3(3) or 3(37) of ERISA) in accordance
with their terms; provided, however, that for purposes of
determining eligibility to participate in and vesting of benefits
under Gold Banc's employee benefit plans, Gold Banc shall
recognize years of service by such employees with the Company or
any Subsidiary prior to the Effective Time.
Section 6.5 Assumption of Company Stock Options.
(a) At the Effective Time, each award, option, or
other right to purchase or acquire the Company Common Stock
pursuant to any Company Stock Options granted and under any
Company Plans or arrangement of the Company which are
outstanding at the Effective Time, whether or not vested or
exercisable, without any action on the part of the holder
thereof, shall be converted into and become rights with
respect to Gold Banc Common Stock, and Gold Banc shall
assume each Company Stock Option, in accordance with the
terms of the Company Stock Plan under which it was granted
and the stock option agreement or award by which it is
evidenced, except that from and after the Effective Time (i)
Gold Banc and its compensation committee shall be
substituted for the Company and the committee of Company's
Board of Directors (including, if applicable, the entire
Board of Directors of the Company) administering such
Company Plan, (ii) each Company Stock option assumed by Gold
Banc may be exercised solely for Gold Banc Common Stock (or
cash in the case of stock appreciation rights), (iii) the
number of Gold Banc Common Stock subject to such Company
Stock Options shall be equal to the number of Gold Banc
Common Stock subject to such Company Stock Option
immediately prior to the Effective Time multiplied by the
Exchange Ratio, and (iv) the per share exercise price (or
similar threshold price, in the case of stock awards) under
each such Company Stock Option shall be adjusted by dividing
the per share exercise (or threshold) price under each such
Company Stock Option by the Exchange Ratio and rounding up
to the nearest cent. Notwithstanding the provisions of
clause (iii) of the proceeding sentence, Gold Banc shall not
be obligated to issue any fraction of a share of Gold Banc
Common Stock upon exercise of such Company Stock Option and
any fraction of a share of Gold Banc Common Stock that
otherwise would be subject to a converted such Company Stock
Option shall represent the right to receive a cash payment
equal to the product of such fraction and the difference
between the market price of one share of Gold Banc Common
Stock and the per share exercise price of such right. In
addition, notwithstanding the provisions of clauses (iii)
and (iv) of the first sentence of this Section 6.5(a), each
such Company Stock Option which is an "incentive stock
option" shall be adjusted as required by Section 424 of the
Internal Revenue Code, and the regulations promulgated
thereunder, so as not to constitute a modification,
extension, or renewal of the option, within the meaning of
Section 424(h) of the Internal Revenue Code. Gold Banc
agrees to take all necessary steps to effectuate the
foregoing provisions of this Section 6.5.
(b) As soon as practicable after the Effective Time,
Gold Banc shall deliver to the participants in each Company
Stock Plan an appropriate notice setting forth such
participant's rights pursuant thereto and the grants
pursuant to such Company Stock Plan shall continue in effect
on the same terms and conditions (subject to the adjustments
required by Section 6.5(a) of this Agreement after giving
effect to the Merger), and Gold Banc shall comply with the
terms of each Company Stock Plan to ensure, to the extent
required by, and subject to the provisions of, such Company
Stock Plan, that the such Company Stock Option which
qualified as incentive stock options prior to the Effective
Time continue to qualify as incentive stock options after
the Effective Time. At or prior to the Effective Time, Gold
Banc shall take all corporate action necessary to reserve
for issuance sufficient shares of Gold Banc Common Stock for
delivery upon exercise of such Company Stock Option assumed
by Gold Banc in accordance with this Section 6.5. As soon
as practicable after the Effective Time, Gold Banc shall
file with the SEC a registration statement on Form S-3 or
Form S-8, as the case may be (or any successor or other
appropriate form), with respect to the shares of Gold Banc
Common Stock subject to such options and shall use its
reasonable efforts to obtain and maintain the effectiveness
of such registration statement (and maintain the current
status of the prospectus or prospectuses contained therein)
for so long as such options remain outstanding. With respect
to those individuals who subsequent to the Merger will be
subject to the reporting requirements under Section 16(a) of
the Exchange Act, where applicable, Gold Banc shall
administer the Company Plans assumed pursuant to this
Section 6.5 in a manner that complies with Rule 16b-3
promulgated under the Exchange Act.
(c) All restrictions or limitations on transfer with
respect to the Company Common Stock awarded under the
Company Stock Plans, to the extent that such restrictions or
limitations shall not have already lapsed, and except as
otherwise expressly provided in such plan, program, or
arrangement, shall remain in full force and effect with
respect to Gold Banc Common Stock into which such restricted
stock is converted pursuant to Section 2.7 of this
Agreement.
(d) Except as contemplated by this Agreement, the
Company will not, after the date hereof, without the written
consent of Gold Banc, amend any outstanding such Company
Stock Option or other options or rights to purchase shares
of the Company Common Stock.
(e) Neither the Company's Board of Directors nor any
committee thereof shall authorize any cash payment in
connection with any outstanding Company Stock Option, and
each member of each committee empowered to act with respect
to any stock option plan shall have resigned.
Section 6.6 Confidentiality. Except as otherwise
agreed to in writing by the Company, unless and until the
Effective Time, the Company, Gold Banc and its affiliates will be
bound by, and all information received with respect to the
Company pursuant to Section 5.3 shall be subject to, the
Confidentiality Agreement. In the event that this Agreement is
terminated and the Merger is not consummated, the parties to this
Agreement affirm their understanding that the terms of the
Confidentiality Agreement will survive such termination and will
continue in full force and effect.
Section 6.7 Pooling-of-Interest Accounting
Treatment. Gold Banc shall not intentionally take or cause or
permit to be taken any action, whether before or after the
Effective Time, which would disqualify the Merger from receiving
pooling-of-interest accounting treatment.
Section 6.8 Cooperation by Gold Banc and Acquisition
Subsidiary. Gold Banc and Acquisition Subsidiary shall use all
commercially reasonable efforts to take all actions and to do all
things necessary or advisable to consummate the transactions
contemplated by this Agreement and to cooperate with the Company
in connection therewith.
Section 6.9 Year 2000 Compliance. With respect to
all computer hardware, computer software applications, and Bank
services and products, Gold Banc shall, and shall cause its
subsidiaries to, (i) use their best efforts to comply with all
Federal Financial Institution Examination Council Year 2000
regulations and guidelines and (ii) take all action necessary to
receive a rating of "Satisfactory" or better on any Year 2000
compliance examination conducted by their respective examining
agencies.
Section 6.10 Nasdaq Listing. Gold Banc shall use all
reasonable efforts to maintain the current Nasdaq listing of Gold
Banc Common Stock.
Section 6.11 Continuation of Business. From the date
of this Agreement until the earlier of the Effective Time or the
termination of this Agreement, Gold Banc covenants and agrees
that it shall (a) continue to conduct its business and the
business of its Gold Banc Subsidiaries in a manner designed in
its reasonable judgment, to enhance the long-term value of the
Gold Banc Common Stock and the business prospects of Gold Banc
and its Gold Banc Subsidiaries, and (b) take no action which
would (i) materially adversely affect the ability of any party to
this Agreement to obtain any Consents required for the
transactions contemplated hereby without imposition of a
condition or restriction of the type referred in Section 11.1(c),
or (ii) materially adversely affect the ability of any party to
perform its covenants and agreements under this Agreement;
provided, that the foregoing shall not prevent Gold Banc or any
of the Gold Banc Subsidiaries from discontinuing or disposing of
any of its properties, assets, or business if such action is, in
the judgment of Gold Banc, desirable in the conduct of the
business of Gold Banc and its Gold Banc Subsidiaries.
Section 6.12 Election of Bank Directors. Immediately
after the Effective Time, Gold Banc shall cause the Surviving
Corporation, as the sole stockholder of the Bank, to elect all of
the existing directors of the Bank as the continuing directors of
the Bank, to hold such offices until the next annual meeting of
the stockholders of the Bank, or until their successors shall
have been duly elected as provided in the Bylaws of the Bank.
ARTICLE VII
CONDITIONS PRECEDENT TO OBLIGATIONS
OF THE COMPANY
The obligations of the Company to consummate the
transactions contemplated hereunder shall be subject to
satisfaction on or before the Closing Date of all of the
following conditions, except such conditions as the Company may
waive in writing:
Section 7.1 Representations, Warranties and
Covenants. All representations and warranties of Gold Banc and
Acquisition Subsidiary contained in this Agreement shall be true
and correct in all material respects on and as of the Closing
Date, except for changes permitted by or contemplated by this
Agreement, and except that to the extent any such representation
or warranty is made solely as of a specified date. Each of Gold
Banc and Acquisition Subsidiary shall have performed in all
material respects all agreements and covenants required by this
Agreement to be performed by it on or prior to the Closing Date.
The Company shall have received a certificate signed by the
President and CFO of Gold Banc, dated the Closing Date, to the
foregoing effects.
Section 7.2 Regulatory Authority Approval. Orders
and Consents in form and substance reasonably satisfactory to the
Company shall have been entered by or obtained from the
appropriate regulatory authorities authorizing consummation of
the transactions contemplated by this Agreement pursuant to the
provisions of the BHC Act and any other applicable Law.
Section 7.3 Litigation. There shall not be pending
or threatened any Action which the Company reasonably believes
would result in restraining, enjoining or prohibiting the
consummation of the transactions contemplated by this Agreement.
Section 7.4 Approval by Stockholders. The
stockholders of the Company shall have duly approved and adopted
this Agreement, the Merger and the transactions contemplated
hereby to the extent required by applicable Law and the Articles
of Incorporation and Bylaws of the Company and the Bank, and the
stockholders of Gold Banc and of Acquisition Subsidiary shall
have duly approved and adopted this Agreement, the Merger and the
transactions contemplated hereby to the extent required by
applicable Law, the Articles of Incorporation and Bylaws of Gold
Banc and of Acquisition Subsidiary, and the rules of Nasdaq.
Section 7.5 Adverse Changes. From the date hereof
to the Closing Date, there shall have been no Material Adverse
Change in Gold Banc and its subsidiaries, taken as a whole, and
taking into account for this purpose the proceeds of any
applicable insurance.
Section 7.6 Federal Tax Opinion. The Company shall
have received, at Gold Banc's expense, an opinion of Gold Banc's
Counsel, addressed to the Company and its stockholders in form
and substance reasonably satisfactory to the Company and the
Company's Counsel, dated the Closing Date, to the effect that the
Merger will be a tax-free reorganization under Section 368(a) of
the Code and no gain or loss will be recognized by the
stockholders of the Company.
Section 7.7 Opinion of Counsel. The Company shall
have received, at Gold Banc's expense, an opinion of Gold Banc's
Counsel, dated the Closing Date, in form and substance reasonably
satisfactory to the Company, covering customary corporate law
matters.
Section 7.8 Nasdaq Listing. The Gold Banc Common
Stock to be issued pursuant to the Merger shall have been
approved and authorized for quotation on Nasdaq upon official
notice of issuance.
Section 7.9 Market Price of Gold Banc Common Stock.
The Average Gold Banc Stock Price shall not be less than $10.00
per share, unless amended pursuant to Section 2.7 hereof.
Section 7.10 Fairness Opinion. The Company shall
have received an opinion, as of the date of this Agreement,
rendered by Advest, Inc., that, in the opinion of such firm, the
Exchange Ratio is fair, from a financial point of view, to the
holders of the Company Common Stock, which opinion shall be
affirmed and reissued in writing by a letter, dated not more than
five Business Days prior to the date of the Proxy Statement and
again at Closing, and is not withdrawn or substantially qualified
by Advest, prior to the Effective Time.
Section 7.11 Qualification for Pooling-of-Interest
Treatment. The Company shall have received (i) the Pooling
Letter from the Company's Accountant contemplated by Section 5.12
hereto, and (ii) an opinion from the Gold Banc's Accountants that
the transactions contemplated hereby will qualify for
pooling-of-interest accounting treatment and that all conditions applicable
thereto (including limitation of any cash consideration paid by
Gold Banc hereunder and absence of any capital transactions
involving any parties hereto) have been met.
Section 7.12 Registration Statement. The
Registration Statement referenced in Section 10.1 shall have been
declared effective and the parties hereto shall have taken all
actions required pursuant to Article X hereof, and no stop orders
suspending the effectiveness of the Registration Statement shall
have been issued, and no action, suit, proceeding, or
investigation by the SEC to suspend the effectiveness thereof
shall have been initiated and continuing, and all necessary
Consents under applicable blue sky or state securities Laws or
the Securities Act or the Exchange Act relating to the issuance
or trading of the Gold Banc Common Stock issuable pursuant to the
Merger shall have been received.
Section 7.13 Payment of Merger Consideration. Gold
Banc shall have delivered to the Exchange Agents at Closing the
Gold Banc Common Stock and cash in lieu of fractional shares
deliverable to the holders of Company Common Stock pursuant to
the Merger as contemplated by Section 2.8 hereof.
ARTICLE VIII
CONDITIONS PRECEDENT TO OBLIGATIONS OF
GOLD BANC AND ACQUISITION SUBSIDIARY
The obligations of Gold Banc and Acquisition Subsidiary to
consummate the transactions hereunder shall be subject to the
satisfaction on or before the Closing Date of all of the
following conditions, except such conditions as Gold Banc or
Acquisition Subsidiary may waive in writing:
Section 8.1 Representations, Warranties and
Covenants. All representations and warranties of the Company
contained in this Agreement shall be true and correct on and as
of the Closing Date, except for changes permitted by or
contemplated by this Agreement, and except that to the extent any
such representation or warranty is made solely as of a specified
date, such representation or warranty need only be true and
correct in all material respects as of such date. The Company
and each Subsidiary shall have performed all agreements and
covenants required by this Agreement to be performed by it on or
prior to the Closing Date. Gold Banc shall have received a
certificate signed by the President and CFO of the Company, dated
the Closing Date, to the foregoing effects.
Section 8.2 Adverse Changes. From the date hereof
to the Closing Date, there shall have been no Material Adverse
Change in the Company or the Subsidiaries, taken as a whole.
Section 8.3 Regulatory Authority Approval. Orders
and Consents in form and substance reasonably satisfactory to
Gold Banc shall have been entered by or obtained from the
appropriate regulatory authorities authorizing consummation of
the transactions contemplated hereby pursuant to the provisions
of the BHC Act and any other applicable federal or state banking
regulatory statute or rule, and no such order, Consent or
approval shall be conditioned or restricted in any manner which
in the reasonable judgment of Gold Banc would materially
adversely affect the operations of or be unduly burdensome to
Gold Banc.
Section 8.4 Litigation. At the Closing Date, there
shall not be pending or threatened any Action which Gold Banc
reasonably believes would result in restraining, enjoining or
prohibiting the consummation of the transactions contemplated by
this Agreement.
Section 8.5 Financial Measures. Unless waived
pursuant to Section 2.14 hereof:
(a) On the Closing Date, the Total Equity Capital of
the Bank shall be not less than $37,752,000, and the reserve
for loan and lease losses of the Bank shall be not less than
$4,735,000.
(b) On the Closing Date, the Total Equity Capital of
the Company shall not be less than $27,230,000 and, the
total indebtedness of the Company (on an unconsolidated
basis) shall not exceed $16,752,000.
(c) On the Closing Date, the Total Equity Capital of
Finance shall not be less than $296,000, the total
indebtedness of Finance shall not be greater than $3,000,000
and the reserve for loan and lease losses of Finance shall
not be less than one and one-half percent (1.5%) of the
aggregate amount of all its outstanding loans.
(d) The parties acknowledge and agree that all future
earnings from the date hereof forward shall accrue to the
retained earnings or reserves of the Company, the Bank and
Finance, respectively, and shall not result in an increase
of any consideration payable by Gold Banc or Acquisition
Subsidiary hereunder.
Section 8.6 Approval by Stockholders. The
stockholders of the Company shall have duly approved and adopted
this Agreement and the other transactions contemplated hereby to
the extent required by applicable Law and the Articles of
Incorporation and Bylaws of the Company and the stockholders of
Gold Banc and of Acquisition Subsidiary shall have duly approved
and adopted this Agreement and the other transactions
contemplated hereby to the extent required by applicable Law, the
Articles of Incorporation and Bylaws of Gold Banc and of
Acquisition Subsidiary and the rules of Nasdaq.
Section 8.7 Tax Representations. The Company and
each stockholder of the Company owning more than 10% of the
outstanding Company Common Stock shall have made those
representations reasonably requested by Gold Banc's Counsel and
necessary to enable Gold Banc's Counsel to render the opinion
described in Section 8.10 hereof.
Section 8.8 Affiliate Agreements. Each person who
is an "affiliate" (for purposes of Rule 145 under the Securities
Act and for pooling-of-interests accounting treatment) of the
Company at the time this Agreement is submitted to approval of
the stockholders of the Company shall deliver to Gold Banc a
letter in substantially the form set forth in Exhibit B (the
"Affiliate Letter") hereto.
Section 8.9 Federal Tax Opinion. Gold Banc shall
have received an opinion of Gold Banc's Counsel, in form and
substance reasonably satisfactory to Gold Banc, dated the Closing
Date, stating that the Merger will be treated as a tax-free
reorganization within the meaning of Section 368(a) of the Code.
Section 8.10 Opinion of Counsel. Gold Banc shall
have received an opinion of Company's Counsel, dated the Closing
Date, in form and substance reasonably satisfactory to Gold Banc
and Gold Banc's counsel covering customary corporate law matters,
including without limitation the opinion of Company's Counsel
(subject to reasonable assumptions as to factual matters and
conditions that will continue to exist after the Closing) that,
after the consummation of the Merger, the interest paid on
subordinated debentures issued by the Company to ABICT, will be
deductible by the Surviving Corporation as interest payments for
federal income tax purposes.
Section 8.11 Qualification for Pooling-of-Interest
Treatment.
(a) Gold Banc shall have received an opinion from Gold
Banc's Accountants that the transactions contemplated hereby
will qualify for pooling of-interest accounting treatment
and that all conditions applicable thereto (including
limitation of any cash consideration paid by Gold Banc
hereunder and absence of any capital transactions involving
any parties hereto) have been met.
(b) The Company shall have obtained from the Company's
Accountants and delivered to Gold Banc a letter, dated the
Closing Date, affirming the accuracy of their Pooling
Letter.
Section 8.12 Deductibility of Severance Payments.
The Company shall have obtained and Gold Banc shall have received
from the Company's Accountants a written (i) calculation of all
payments due to current or former employees of the Company or any
Subsidiary in connection with the Merger or upon the occurrence
of a change in control of the Company under their respective
Employment Agreements, stock option plans, deferred compensation
plans or otherwise, (ii) certification that such calculation was
completed in accordance with such agreements and plans, and (iii)
opinion that no such severance or other payments will constitute
any non-deductible "parachute payments" under Section 280G of the
Code (the "280G Opinion Letter").
ARTICLE IX
NON-SURVIVAL OF REPRESENTATIONS AND WARRANTIES
Section 9.1 No Survival of Representations and
Warranties. The representations and warranties contained herein
shall not survive after the Effective Time. The representations
and warranties contained herein shall not be deemed modified or
waived by any investigation made by the party(ies) entitled to
the benefit of such representations and warranties or by their
representatives. Except as otherwise provided herein, any waiver
or modification of any representation or warranty shall be
effective only if made in writing and signed by the party(ies)
entitled to the benefit of such representation or warranty. All
agreements and covenants of the parties of this Agreement which
by their terms are to be performed following the Effective Time
shall survive the Effective Time until performed in accordance
with their terms.
ARTICLE X
SECURITIES LAWS MATTERS
Section 10.1 Registration Statement and Proxy
Statement.
(a) Gold Banc shall, at Gold Banc's expense as soon as
practicable prepare and file a registration statement on
Form S-4, including the Proxy Statement, to be filed with
the SEC pursuant to the Securities Act for the purpose of
registering the shares of Gold Banc Common Stock to be
issued in the Merger (the "Registration Statement"). The
Company, Gold Banc and Acquisition Subsidiary shall each
provide promptly to the other such information concerning
their respective businesses, financial conditions, and
affairs as may be required or appropriate for inclusion in
the Registration Statement or the proxy statement to be used
in connection with the special stockholders' meetings of the
Company, Gold Banc and Acquisition Subsidiary to be called
for the purpose of considering and voting on the Merger (the
"Proxy Statement"). The Company, Gold Banc and Acquisition
Subsidiary shall each cause their counsel, auditors and
other experts to cooperate with the other's counsel,
auditors and other experts in the preparation and filing of
the Registration Statement and the Proxy Statement. Gold
Banc shall not include in the Registration Statement any
information concerning the Company or any Subsidiary to
which the Company shall reasonably and timely object in
writing. Gold Banc, Acquisition Subsidiary and the Company
shall use their reasonable best efforts to have the
Registration Statement declared effective under the
Securities Act as soon as may be practicable and thereafter
the Company shall distribute the Proxy Statement to its
stockholders in accordance with applicable laws not fewer
than twenty (20) Business Days prior to the date on which
this Agreement is to be submitted to its stockholders for
voting thereon. If necessary, in light of developments
occurring subsequent to the distribution of the Proxy
Statement, Gold Banc shall prepare and file such amendments
or supplements to the Registration Statement and the Proxy
Statement and Gold Banc, Acquisition Subsidiary and the
Company shall mail or otherwise furnish to their
stockholders such amendments to the Proxy Statement or
supplements to the Proxy Statement as may, in the reasonable
opinion of Gold Banc, Acquisition Subsidiary or the Company,
be necessary so that the Proxy Statement, as so amended or
supplemented, will contain no untrue statement of any
material fact and will not 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 were made, not misleading, or as may be necessary
to comply with applicable law. Gold Banc and Acquisition
Subsidiary shall not be required to maintain the
effectiveness of the Registration Statement after delivery
of the Gold Banc Common Stock issued pursuant hereto for the
purpose of resale of Gold Banc Common Stock by any Person.
(b) For a period of at least two years from the
Effective Time, Gold Banc shall make available "adequate
current public information" within the meaning of and as
required by paragraph (c) of Rule 144 adopted pursuant to
the Securities Act.
Section 10.2 State Securities Laws. The parties
hereto shall cooperate in making any filings required under the
securities laws of any state in order to qualify or register the
Gold Banc Common Stock so it may be offered and sold lawfully in
such state in connection with the Merger or to obtain an
exemption from such qualification or registration.
Section 10.3 Publication of Combined Financial
Results. Gold Banc shall publish financial results covering at
least thirty (30) days of post-Merger combined operations of Gold
Banc and the Company, ending on a normal month-end closing date,
as soon as practicable after the Effective Time, unless the first
thirty (30) day period of combined operations ending on a normal
month-end closing date ends on the normal closing date of an
annual report on Form 10-K or quarterly report on Form 10-Q.
Section 10.4 Indemnification by Gold Banc. Gold Banc
agrees to indemnify and hold harmless the Company and its
stockholders, directors, officers, employees, representatives and
agents from and against any and all Damages, whether arising
under federal or state securities or Blue Sky laws or otherwise,
which may be asserted against any of them and which arise as a
result of any alleged act or failure to act, or any alleged
statement or omission, of Gold Banc done or made in connection
with the Registration Statement, Proxy Statement, or any other
statement or form filed or required to be filed with the SEC or
any state securities department or delivered or required to be
delivered to the holders of Company Common Stock or Gold Banc
Common Stock except to the extent any such alleged act, failure
to act, statement or omission is a result of information provided
by the Company. This obligation shall survive the consummation of
the Merger.
Section 10.5 Indemnification by the Company. The
Company agrees to indemnify and hold harmless Gold Banc and its
stockholders, directors, officers, employees, representatives and
agents from and against any and all Damages, whether arising
under federal or state securities or Blue Sky laws or otherwise,
which may be asserted against any of them and which arise as a
result of any alleged act or failure to act, or any alleged
statement or omission, of the Company or any Subsidiary done or
made in connection with the Registration Statement, Proxy
Statement, or any other statement or form filed or required to be
filed with the SEC or any state securities department or
delivered or required to be delivered to the holders of Company
Common Stock or Gold Banc Common Stock except to the extent any
such alleged act, failure to act, statement or omission is a
result of information provided by Gold Banc.
Section 10.6 Indemnification by the Surviving
Corporation.
(a) The Surviving Corporation shall indemnify, defend,
and hold harmless the present directors, officers,
employees, and agents of the Company and its Subsidiaries
(each, an "Indemnified Party) after the Effective Time
against all Damages in connection with any Action arising
out of actions or omissions occurring at or prior to the
Effective Time (including the transactions contemplated by
this Agreement) to the full extent permitted under Florida
Law and by the Company's Articles of Incorporation and
Bylaws as in effect as of the date hereof, including any
provisions relating to advances of expenses incurred in the
defense of any action, suit or proceeding. Gold Banc shall
cause the Surviving Corporation and all other relevant Gold
Banc subsidiaries to apply such rights of indemnification in
good faith and to the fullest extent permitted by applicable
Law.
(b) With respect to all persons who are currently
covered by the Company's directors' and officers' liability
insurance, the Surviving Corporation shall maintain in
effect for a period of not less than three years following
the Effective Time the current directors' and officers'
liability insurance maintained by the Company (provided that
the Surviving Corporation may substitute therefor policies
of at least equivalent coverage containing terms and
conditions and coverages which are no less advantageous to
the current directors and officers of the Company) with
respect to matters occurring prior to the Effective Time.
(c) If the Surviving Corporation or any of its
successors or assigns shall consolidate with or merge into
any other corporation or entity and shall not be the
continuing or surviving corporation or entity of such
consolidation or merger or shall transfer all or
substantially all of its assets to any person, corporation
or entity, then in each case, proper provision shall be made
so that the successors and assigns of the Surviving
Corporation shall assume the obligations set forth in this
Section 10.6.
(d) The provisions of this Section 10.6 are intended
to be for the benefit of and shall be enforceable by, each
Indemnified Party, his or her heirs and representatives, and
shall survive the consummation of the Merger and be binding
on all successors and assigns of the Surviving Corporation.
ARTICLE XI
TERMINATION
Section 11.1 Basis for Termination. This Agreement
and the Merger contemplated hereby may be terminated at any time
prior to the Closing Date:
(a) by mutual consent in writing of the parties
hereto;
(b) by either party if the transactions contemplated
hereby have not closed by March 31, 2000; provided, however,
that the right to terminate this Agreement pursuant to this
Section 11.1(b) shall not be available to any party whose
failure to fulfill any obligations under this Agreement has
been the cause of, or resulted in the failure of the Merger
to be consummated on or before such date;
(c) by Gold Banc upon written notice to the Company if
any regulatory approval of the transactions contemplated
under the terms of this Agreement shall be denied or if any
such regulatory approval shall be conditioned or restricted
in any manner which in the reasonable judgment of Gold Banc
would materially adversely affect the operations of or would
be unduly burdensome to Gold Banc;
(d) by Gold Banc or the Company, as the case may be,
(i) if any of the conditions precedent to the performance of
the obligations of the party giving notice of termination
shall not have been fulfilled and cannot be fulfilled in all
material respects on or prior to the Closing Date and shall
not have been waived in writing by such party; or (ii) if a
material breach or default shall be made by the other party
in observance or in the due and timely performance of any
material covenant or agreement herein contained that cannot
be cured on or prior to the Closing Date or, if capable of
being cured, has not been cured within thirty (30) days
after the party for whose benefit this Agreement or covenant
was made, has given written notice to the other party of
such breach or default, and shall not have been waived in
writing by such party; or (iii) if there exists any material
inaccuracy, misrepresentation or breach of a representation
or warranty made herein by the other party which has not
been waived in writing by the party for whose benefit such
warranty or representation was made or given;
(e) by the Company if it receives an unsolicited
Acquisition Proposal as contemplated by Section 5.8 hereof,
which the Board of Directors of the Company, in good faith,
believes is superior to the Merger contemplated hereby;
(f) by Gold Banc upon receipt of written notice from
the Company pursuant to Section 5.8(b) hereof that the
Company has entered into an agreement to engage in a
transaction relating to an Acquisition Proposal with any
Person other than Gold Banc or its affiliates or the
Company's Board of Directors or any committee thereof has
endorsed, approved or recommended an Acquisition Proposal
made by any Person other than Gold Banc or its affiliates;
(g) by either party, if the stockholders of the
Company or the stockholders of Gold Banc fail to vote their
approval of this Agreement and the Merger contemplated
hereby as required under the FBCA and the KGCC at the
shareholder meetings held pursuant to Section 10.1 of this
Agreement; or
(h) by the Company, if the Average Gold Banc Stock
Price is less than $10.00 and the Board of Directors of the
Company determines, by a vote of a majority of the entire
Board, at any time during the period commencing on the sixth
day following the Determination Date and ending on the tenth
day after the Determination Date to terminate this
Agreement; provided, however, before exercising its rights
to effect termination under this Section 11.1(h), the
Company shall first have satisfied the good faith procedures
specified in Section 2.7 of this Agreement, it being agreed
that it shall not be a failure to negotiate in good faith if
the Board of Directors of the Company declines to agree to a
revised Exchange Ratio because it has determined in its
reasonable business judgment that there has been a Material
Adverse Change in Gold Banc and its subsidiaries, taken as a
whole.
As used in this Section 11.1, actions contemplated as being taken
by Gold Banc or the Company must be taken by their respective
Boards of Directors or the executive committee of such Boards.
Section 11.2 Effect of Termination. Except in the
event of a termination of this Agreement pursuant to Section
11.1(d) or Section 11.3 hereof, there shall be no liability on
the parties hereto or any of their respective directors, officers
or shareholders as a result thereof under this Agreement. A
termination under Section 11.1(d) hereof shall not prejudice any
claim for damages which any party may have hereunder or in law or
in equity as a consequence of any matter giving rise to a
termination of the Agreement under Section 11.1(d) hereof.
Sections 6.6, 10.4, 10.5, 11.2, 11.3, 12.3 and 12.8 shall survive
termination of this Agreement.
Section 11.3 Termination Fee; Other Fees.
(a) The Company agrees to pay to Gold Banc upon demand
a termination fee of Three Million Dollars ($3,000,000) (the
"Termination Fee") if this Agreement is terminated (i) by
the Company pursuant to Section 11.1(e) or (ii) by Gold Banc
pursuant to Section 11.1(f). In the event of a termination
of this Agreement pursuant to Section 11.1(e) or 11.1(f) of
this Agreement, the payments provided under this
Section 11.3(a) shall be the sole and exclusive remedy
available to Gold Banc.
(b) In the event this Agreement is terminated as a
result of Gold Banc's failure or breach under Section
11.1(d), Gold Banc shall reimburse the Company for its
reasonable out-of-pocket expenses relating to the Merger
(including, without limitation, the fees and expenses of the
Company's Counsel, the Company's Accountants and Advest,
Inc. (other than performance fees)). This payment is not
the exclusive remedy available to the Company for any such
failure or breach on the part of Gold Banc and will not
serve as liquidated damages therefor, and such payment will
cumulative to all other remedies available to the Company
under this Agreement and under applicable Law.
(c) In the event this Agreement is terminated as a
result of the Company's failure or breach under Section
11.1(d), the Company shall reimburse Gold Banc for its
reasonable out-of-pocket expenses relating to the Merger
(including without limitation the fees and expenses of Gold
Banc's Counsel, Gold Banc's Accountants and Gold Banc's
investment bankers and SEC fees and printing fees)). This
payment is not the exclusive remedy available to Gold Banc
for any such failure or breach on the part of the Company
and will not serve as liquidated damages therefor, and such
payment will cumulative to all other remedies available to
Gold Banc under this Agreement and under applicable Law.
Section 11.4 Specific Performance.
(a) Subject to Section 11.1, in the event Gold Banc
and Acquisition Subsidiary have performed all of their
obligations hereunder and all conditions precedent to the
obligation of the Company to close have been met or waived
in writing by the Company, but the Company fails or
otherwise refuses to close, then either or both of Gold Banc
and Acquisition Subsidiary shall be entitled to enforce the
terms hereof by an Action seeking specific performance.
Such right is not exclusive and shall not preclude Gold Banc
or Acquisition Subsidiary from also pursuing an Action to
recover any and all damages resulting from the Company's
default hereunder. All remedies available to Gold Banc or
Acquisition Subsidiary hereunder or by law are cumulative
(b) In the event the Company has performed all of its
obligations hereunder and all conditions precedent to the
obligations of Gold Banc and Acquisition Subsidiary to close
have been met or waived in writing by Gold Banc and
Acquisition Subsidiary, but Gold Banc and Acquisition
Subsidiary fail or otherwise refuse to close, then the
Company shall be entitled to enforce the terms hereof by an
Action seeking specific performance. Such right is not
exclusive and shall not preclude the Company from also
pursuing an Action to recover any and all damages resulting
from the default by Gold Banc and Acquisition Subsidiary
hereunder. All remedies available to the Company hereunder
or by law are cumulative.
ARTICLE XII
MISCELLANEOUS
Section 12.1 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 the Company, Gold Banc or Acquisition
Subsidiary, but, 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.
Section 12.2 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, (a) extend the time for the performance
of any of the obligations or other acts of the other parties
hereto, (b) waive any inaccuracies in the representations and
warranties contained herein or in any document delivered pursuant
hereto and (c) 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.
Section 12.3 Expenses. Except as set forth herein,
each party shall be responsible for its own expenses in
connection with this transaction. Specifically, each party shall
be responsible for their own legal and accounting fees and any
related costs or charges associated with the negotiation,
execution and consummation of this Agreement.
Section 12.4 Parties in Interest. This Agreement and
the rights hereunder are not assignable unless such assignment is
consented to in writing by all parties hereto. Except as
otherwise expressly provided herein, all of the terms and
provisions of this Agreement shall be binding upon, shall inure
to the benefit of and shall be enforceable by the respective
heirs, beneficiaries, personal and legal representatives,
successors and permitted assigns of the parties hereto.
Section 12.5 Entire Agreement; Amendments; Waiver.
This Agreement contains the entire understanding of Gold Banc,
Acquisition Subsidiary and the Company with respect to the Merger
and supersedes all prior agreements and understandings, whether
written or oral, between them with respect to the Merger
contemplated herein. Notwithstanding the foregoing, the
Confidentiality Agreement is not superseded by this Agreement.
This Agreement may be amended only by a written instrument duly
executed by the parties or their respective successors or
permitted assigns. Any condition to a party's obligation
hereunder may be waived by such party in writing.
Section 12.6 Obligation of Gold Banc. Whenever this
Agreement requires Gold Banc (including Acquisition Subsidiary)
to take any action, such requirement will be deemed to include an
undertaking of Gold Banc to cause the Gold Banc Subsidiaries to
take such action, if necessary.
Section 12.7 Notices. All notices, requests, demands
or other communications hereunder shall be in writing and shall
be deemed to have been duly given (a) when personally delivered,
(b) on the first Business Day following the Business Day on which
delivered to a nationally recognized overnight delivery service,
(c) if sent by facsimile transmission, on the date that
transmission is received by a responsible employee of the
recipient in legible form (it being agreed that the burden of
proving receipt will be on the sender and will not be met by a
transmission report generated by the sender's facsimile machine)
or (d) if sent by certified or registered mail, return receipt
requested, on the Business Day that it is delivered or its
delivery is attempted, in any case addressed to the parties at
the following addresses or at such other address as shall be
given in like manner by any party to the other:
If to the Company:
Xxxxx X. Xxxx
American Bancshares, Inc.
0000 Xxxxxx Xxxx Xxxx
Xxxxxxxxx, Xxxxxxx 00000-0000
Telephone: (000) 000-0000
FAX: (000) 000-0000
with a copy to:
Xxxxxxx X. Xxxxxx
Carlton, Fields, Xxxx, Xxxxxxxx, Xxxxx & Xxxxxx, P.A.
One Harbor Place
000 Xxxxx Xxxxxxx Xxxxxx Xxxxxxxxx
Xxxxx, Xxxxxxx 00000-0000
Telephone: (000) 000-0000
FAX: (000) 000-0000
If to Gold Banc:
Xxxxxxx X. Xxxxxxx
Gold Banc Corporation, Inc.
00000 Xxxx Xxxxxx
Xxxxxxx, XX 00000
Telephone: (000) 000-0000
FAX: (000) 000-0000
with a copy to:
Xxxxxxx X. Xxxxxxxx
Xxxxxxx, Mag & Fizzell, P.C.
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx Xxxx, XX 00000
Telephone: (000) 000-0000
FAX: (000) 000-0000
Section 12.8 Law Governing. This Agreement shall be
governed by and construed and enforced in accordance with the
laws of the State of Florida, except to the extent that Kansas
corporate law applies to the provisions hereof relating to the
Company Merger.
Section 12.9 Fiduciary Duties. Notwithstanding
anything to the contrary in this Agreement, no provision of this
Agreement shall be construed to prevent the exercise by any
director of the Company (or the actions of the Company thereon)
of his fiduciary duty under applicable federal or state law.
IN WITNESS WHEREOF, the parties hereto have duly executed
this Agreement as of the date first above written.
GOLD BANC CORPORATION, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Chairman of the Board
ATTEST:
/s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Secretary
GOLD BANC ACQUISITION CORPORATION
XI, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: President
ATTEST:
/s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Secretary
AMERICAN BANCSHARES, INC.
By: /s/ Xxxxx X. Xxxx
Name: Xxxxx X. Xxxx
Title: President and Chief
Executive Officer
ATTEST:
/s/ Xxxxx X. Xxxxxxxxx
Name: Xxxxx X. Xxxxxxxxx
Title: Secretary
STATE OF ________________ )
) ss.
COUNTY OF _______________ )
ON THIS ___ day of September, 1999 before me the
undersigned, a Notary Public in and for the County and the
aforesaid, came Xxxxxxx X. Xxxxxxx, Chairman of the Board of Gold
Banc Corporation, Inc., a Kansas corporation, and Xxxxx X.
Xxxxxxx, Secretary, who are personally known to me to be such
persons, and who is personally known to me to be the same persons
who executed the within instrument on behalf of said corporation,
and such persons duly acknowledged the execution of the same to
be the act and deed of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed
my official seal, the day and year last above written.
_______________________________
NOTARY PUBLIC
My Appointment Expires:
______________________
STATE OF _________________ )
) ss.
COUNTY OF ________________ )
ON THIS ___ day of September, 1999, before me the
undersigned, a Notary Public in and for the County and state
aforesaid, came Xxxxxxx X. Xxxxxxx, President of Gold Banc
Acquisition Corporation XI, Inc., a Kansas corporation, and Xxxxx
X. Xxxxxxx, Secretary, who are personally known to me to be such
persons, and who is personally known to me to be the same persons
who executed the within instrument on behalf of said corporation,
and such persons duly acknowledged the execution of the same to
be the act and deed of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed
my official seal, the day and year last above written.
_______________________________
NOTARY PUBLIC
My Appointment Expires:
______________________
STATE OF ________________ )
) ss.
COUNTY OF _______________ )
ON THIS ___ day of September, 1999, before me the
undersigned, a Notary Public in and for the County and state
aforesaid, came Xxxxx X. Xxxx, President and Chief Executive
Officer of American Bancshares, Inc., a Florida corporation, and
__________________________, Secretary, who are personally known
to me to be such persons, and who is personally known to me to be
the same persons who executed the within instrument on behalf of
said corporation, and such persons duly acknowledged the
execution of the same to be the act and deed of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed
my official seal, the day and year last above written.
_______________________________
NOTARY PUBLIC
My Appointment Expires:
_______________________
