1
EXHIBIT 4(c)(4)
to 13E-3
First Amendment To
Stock Purchase Agreement
This First Amendment to Stock Purchase Agreement dated as of this 27th
day of January, 1997 among Ameribank Corporation "Ameribank" of Shawnee,
Oklahoma and Xxxx X. Xxxxxx, D. Xxxxxx Xxxxxxxx and Xxxxxx X. Xxxx, Xx.
(Purchasers") all of Shawnee, Oklahoma.
WHEREAS, Ameribank and Purchasers entered into a Stock Purchase
Agreement (the "Agreement") on the 3rd day of November, 1995 relating to the
sale by Ameribank to Purchasers of Common Stock and Preferred Stock of United
Oklahoma Bankshares, Inc.(the "Company"); and
WHEREAS, Xxxx X. Xxxxxx has acquired all of the right title and
interest in and to the Agreement from J. Xxxxxxx Xxxxxx; and
WHEREAS, Ameribank and the Company have entered into a Merger Agreement
whereby the separate existence of the Company will cease to exist; and
WHEREAS, the parties wish to amend the Agreement to reflect their intent
to substitute the common stock of United Bank, Del City, ("Bank") for the
Common Stock and Preferred Stock of the Company in the event the merger is
consummated.
NOW THEREFORE in consideration of the mutual promises contained herein
the parties hereby agree as follows:
1. In the event that a merger between Ameribank and the Company is
consummated resulting in the extinguishment of the Company's separate
existence:
A. Paragraph 1 of the Agreement shall be amended by substituting
Bank's for the word Company's in the first sentence thereof.
B. Any references to "shares" in the Agreement shall mean shares
of the Bank.
C. Paragraph 2.1 of the Agreement shall be amended to include as
part of the Purchase Price, any merger consideration paid to
Company shareholders (other than Ameribank) in connection with
the above-mentioned merger.
2
D. Paragraph 5 of the Agreement shall be amended by adding (IV)
"the parties have entered into an acceptable Shareholders Buy-
Sell Agreement restricting the future transfer of shares
substantially in the form as set forth in Exhibit "C" hereto and
a Voting Trust Agreement in substantially the form set forth in
Exhibit "D" hereto in the event of a merger between Ameribank and
the Company resulting in the extinguishment of the Company's
separate existence.
2. All other terms of the Agreement shall remain in full force and
effect.
In Witness Whereof, we have set our hands this 27th day of January,
1997.
Ameribank Corporation Purchasers
By: /s/ D. XXXXXX XXXXXXXX /s/ XXXXXX X. XXXX, XX.
--------------------------------- ---------------------------------------
Its Vice President Xxxxxx X. Xxxx, Xx.
-----------------------------
/s/ D. XXXXXX XXXXXXXX
---------------------------------------
D. Xxxxxx Xxxxxxxx
/s/ XXXX X. XXXXXX
---------------------------------------
Xxxx X. Xxxxxx
3
EXHIBIT "C"
TO STOCK PURCHASE AGREEMENT
SHAREHOLDERS AGREEMENT
This Agreement is made as of the ___ day of __________ 1997, among
Xxxx X. Xxxxxx, D. Xxxxxx Xxxxxxxx and Xxxxxx X. Xxxx, Xx. ("Shareholders other
than Ameribank") and Ameribank Corporation ("Ameribank") (the "Shareholders",
collectively), and United Bank, Del City(the "Bank"), an Oklahoma corporation.
In consideration of the promises contained herein and the benefits to be
derived from the mutual observance of the provisions of this Agreement, the
parties agree as follows:
1. Corporation Stock. Shareholders own the following number of
shares of the common stock, of Bank (the "Bank Stock"):
NUMBER OF SHARES
SHAREHOLDERS OF COMMON STOCK
Xxxx X. Xxxxxx -------------
D. Xxxxxx Xxxxxxxx -------------
Xxxxxx X. Xxxx, Xx. -------------
Ameribank has contemporaneously with the execution hereof sold and
delivered to Shareholders other than Ameribank the Common Stock listed above.
The Shareholders and the Bank believe it to be in their mutual interest that
Shareholders other than Ameribank be restricted in their right to dispose of
their Bank Stock and that certain other rights and obligations of the parties
hereto be agreed upon as specified herein.
2. Restrictions Upon Disposition. Shareholders shall not be
permitted to dispose of any shares of Bank Stock without the prior written
consent of the other Shareholders, except as provided in Section 3. The term
"dispose" includes, without limitation, the acts of selling, assigning,
transferring, pledging, encumbering, giving and any other form of conveying,
whether voluntary or by operation of law.
3. Restrictions Upon Sale.
3.1 Offer to Ameribank. During the continuance in force of this
Agreement, Shareholders other than Ameribank shall not be permitted to sell any
shares of Bank Stock unless the number of shares of Bank Stock owned by such
Shareholder proposed to be sold shall have first been offered in writing by
such Shareholder for sale to Ameribank at the price and upon the terms as
provided in paragraphs 5 and 6 hereof. Ameribank shall have thirty (30) days
from the date of the delivery of such written offer in which to accept such
offer by delivering its written acceptance to the Shareholders other than
Ameribank.
4
3.2 Offer to Bank. If the offer provided in Section 3.1 has not
been accepted upon the expiration of such thirty-day period (or if Ameribank
has sooner waived in writing the right to accept such offer), then such shares
of Bank Stock shall be offered in writing by Shareholders other than Ameribank
for sale to Bank who shall have the right to purchase the shares of Bank Stock
offered for sale at the price and upon the terms as provided in paragraphs 5
and 6 hereof by accepting such offer in writing within thirty (30) days from
the date of the delivery of such written offer. Shareholders other than
Ameribank shall not be obligated to sell any shares of Bank Stock to the Bank
unless all shares of Bank Stock offered for sale by Shareholders other than
Ameribank are purchased by the Bank.
3.3 Right to Sell Stock. If the offers provided in Sections 3.1
and 3.2 have not been accepted upon the expiration of the option periods (or if
the Bank and Ameribank have sooner waived in writing their right to accept such
offers or if all the shares of Bank Stock offered for sale by Shareholders
other than Ameribank are not purchased by Ameribank), Shareholders other than
Ameribank shall have the right for a period of sixty (60) days to sell that
number of shares of Bank Stock which had been offered to the Bank and to
Ameribank in Sections 3.1 and 3.2, to a third party specified in a written
offer at a price not less than and upon terms not more favorable than offered
to the Bank and to Ameribank. Any shares of Bank Stock not sold within such
sixty-day period after there shall have been compliance with this Section 3
shall again become subject to the restrictions of this Agreement.
4. Death of a Shareholder other than Ameribank.
4.1 Option to Ameribank. Upon the death of a Shareholder other
than Ameribank, Ameribank shall have the option to purchase all shares of Bank
Stock owned by such Shareholder at the purchase price and upon the terms
specified in Section 5 and 6 by giving written notice to the legal
representative (or heirs-at-law) of such Shareholder within thirty (30) days
after the appointment of such legal representative (or upon their heirs-at-law
within ninety (90) days after the death of such Shareholder if a legal
representative has not been appointed within such ninety (90) day period).
4.2 Option to Bank. If Ameribank does not exercise its option
pursuant to Section 4.1 upon the death of a Shareholder other than Ameribank,
then the Bank shall have an option to purchase all the shares of Bank Stock
owned by such Shareholder at the purchase price and upon the terms specified in
Sections 5 and 6 by giving written notice to the legal representative (or
heirs-at-law) of such Shareholder within sixty (60) days after the appointment
of a legal representative (or upon their heirs-at-law within one hundred twenty
(120) days after the death of such Shareholder if a legal representative has
not been appointed within such one hundred twenty (120) day period). The legal
representative (or the heirs-at-law) of such Shareholder shall not be obligated
to
5
sell any shares of Bank Stock to the Bank unless all shares of Bank Stock owned
by such Shareholder are purchased by the Bank. The purchase price and the
manner of payment shall be as specified in Sections 5 and 6.
4.3 Option of Legal Representative. If neither Ameribank nor the
Bank exercise their options pursuant to Sections 4.1 and 4.2 upon the death of
such Shareholder other than Ameribank, the legal representative of such
Shareholder shall have the option to require Ameribank to purchase all shares
of Bank Stock owned by such Shareholder at the purchase price and upon the
terms specified in Section 5 and 6 by giving written notice to an officer of
Ameribank within thirty (30) days after the date on which the time expired for
exercise by the Bank of its option to purchase all shares of Bank Stock.
4.4 Time of Closing. The consummation of the purchase shall be
as soon as practicable after appropriate probate administration procedures have
been completed.
5. Purchase Price. The purchase price for the Bank Stock of a
Shareholder other than Ameribank (pursuant to Sections 3 and 4) shall be equal
to:
The Fair Market Value of the Bank Stock as of the end of the last day
of the month immediately preceding the date of death of a Shareholder other
than Ameribank or the date of the offer of a Shareholder other than Ameribank.
The term Fair Market Value means the value of the Bank Stock as agreed upon
between the Shareholders or Ameribank and the legal representative of
Shareholders. If the Shareholders are unable to agree upon the value, an
independent appraiser shall be appointed by one of the Shareholders to appraise
the underlying assets of the Bank. If the Shareholders agree such appraisal
reflects the fair value of the Bank Stock, such amount will be deemed the Fair
Market Value. If the non- appointing Shareholder disagrees with such appraisal,
that person will appoint an appraiser to appraise the underlying assets of the
Bank. If the Shareholders agree such appraisal reflects the fair value of the
Bank Stock, such amount will be deemed the Fair Market Value. If the
Shareholders still cannot agree, the previously appointed appraisers will
mutually appoint a third appraiser to appraise the underlying assets of the
Bank, whose appraisal shall be final and binding as to the Fair Market Value of
the Bank's stock. The parties agree that any determination of Fair Market
Value shall be made based on the valuation of the Bank divided by the prorata
ownership of such Shareholders' Bank Stock and shall not be reduced to take
into account a minority discount.
6. Manner of Payment. Payment of the purchase price shall be
made in cash within six (6) months after the date on which Fair Market Value
was determined, with interest at the Prime Rate from the date on which the Fair
Market Value was determined to the date of payment. The term "Prime Rate"
means the prime interest rate charged on 90- day loans to responsible and
substantial customers of Bank of Oklahoma, N.A.
6
7. Closing Procedures. The closing of any purchase of Bank
Stock pursuant to this Agreement shall be held at the principal place of
business of the Bank or at such other place as the parties to such Closing may
agree upon. The certificates representing the Bank Stock, duly endorsed, free
and clear of all liens and encumbrances, and ready for transfer, shall be
delivered to the purchasing party at the time the purchase price is paid by
delivery of the payment therefor as provided in this Agreement.
8. Sale of All Bank Stock. Notwithstanding any other provision
contained herein, if Shareholders holding shares of a class of Common Stock
representing more than 50% of the class (Selling Shareholders) desire to sell
to a third party or if Ameribank desires to sell shares of a class of its Bank
Stock to a third party and neither the Bank nor the remaining shareholders
desire to acquire such Bank Stock under the terms hereof, then such sale cannot
be consummated unless all Shareholders are provided the opportunity to sell
their Shares of Bank Stock to such third party on the same basis as the Selling
Shareholders or Ameribank.
9. Endorsement of Stock Certificates. Immediately after
execution of this Agreement, Shareholders shall deliver to the Bank the
certificates representing all of the shares of the Bank Stock owned by such
Shareholder, and the Bank shall endorse on each such certificate a legend
reading substantially as follows:
NOTICE
Any sale, assignment, transfer, pledge or other disposition
of the shares of stock represented by this Certificate is
restricted by, and subject to, the terms and provisions of a
Shareholders Agreement, dated _____________, a copy of which
is on file with the Secretary of United Bank, Del City. By
acceptance of this certificate, the holder hereof agrees to
be bound by the terms of such Agreement.
A copy of this Agreement shall be filed with the Cashier of the Bank. During
the term of this Agreement, the foregoing legend shall be endorsed on each
certificate representing shares of Bank Stock hereafter issued by the Bank to
any transferee of a Shareholder whose shares of stock are subject to the terms
of this Agreement. No Shareholder shall cause or permit the removal of the
legend from the certificates representing the shares owned by such Shareholder.
10. Termination. This Agreement shall terminate:
10.1 Sale. Upon the sale of Bank Stock pursuant to Section 3.3,
only with respect to that particular Bank Stock.
10.2 Voluntary. Upon the agreement of the Shareholders.
7
10.3 Involuntary. Upon the bankruptcy, receivership or dissolution of
the Bank, with respect to all Bank Stock.
Upon termination of this Agreement with respect to all or a part of
the Bank Stock, the Cashier of the Bank shall, upon tender of the Certificates
representing the Bank Stock affected, issue new certificates without the legend
provided in Section 8. Bank Stock acquired from a deceased Shareholder through
inheritance shall remain subject to this Agreement and such Shareholder shall
be bound by and inure to the benefits of the terms and conditions of this
Agreement.
11. General.
11.1 Notices. All notices, offers, acceptances, requests and
other communications hereunder shall be in writing and shall be sufficient if
delivered personally or if mailed by registered or certified mail, postage
prepaid, return receipt requested, to the Bank or to the Shareholders at the
addresses on the signature page hereof, or at such other addresses as the
parties hereto may designate to the others in writing. All notices shall be
deemed received when delivered personally or, if mailed, within three (3) days
(excluding Sundays and holidays) after being mailed.
11.2 Integrated Agreement. This Agreement constitutes the entire
agreement among the parties and supersedes all prior agreements and
understandings among the parties relating to the subject matter hereof. All
exhibits attached hereto are hereby incorporated herein and made a part of this
Agreement. This instrument is not intended to have any legal effect whatsoever,
or to be a legally binding agreement, or any evidence thereof, until it has
been signed by all parties.
11.3 Invalidity. If any one or more of the provisions contained in
this Agreement shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect the remaining provisions of this Agreement, and this Agreement
shall be construed as if such invalid, illegal or unenforceable provision or
provisions had never been contained herein.
11.4 Authorization. The execution of this Agreement by the
Shareholders of the Bank shall also constitute their ratification, consent, and
approval to the execution of this Agreement on behalf of the Bank in their
capacities as directors and officers.
11.5 Binding Effect. This Agreement shall be binding upon the
Bank, the Shareholders, their respective legal representatives and successors
and shall also be binding upon any person to whom any Bank Stock is transferred
in violation of this Agreement.
11.6 Counterpart Execution. This Agreement may be executed in two
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute but one and the same instrument.
8
11.7 Applicable Law. This Agreement shall be construed and
enforced in accordance with the laws of the State of Oklahoma, without
reference to its conflict of laws principles.
11.8 Section Headings. Section headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
11.9 Attorney's Fees. In any action brought by any party hereto
to enforce the obligations of any other party hereto, the prevailing party
shall be entitled to collect such party's reasonable attorney's fees, court
costs and expenses in such action.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
SHAREHOLDERS
AMERIBANK CORPORATION UNITED BANK, DEL CITY
By: By:
--------------------------- ---------------------------
Its Its
------------------------ ------------------------
------------------------------
D. Xxxxxx Xxxxxxxx
------------------------------
Xxxxxx X. Xxxx, Xx.
------------------------------
Xxxx X. Xxxxxx
9
EXHIBIT "D"
TO STOCK PURCHASE AGREEMENT
VOTING TRUST AGREEMENT
This Agreement, made as of this ____ day of ____________, 1997, between
holders of certain shares of the Common Stock, and any other type of voting
stock that may be issued by United Bank a corporation organized under the laws
of Oklahoma (hereinafter called the "Bank"), having its principal office in Del
City, Oklahoma, who shall become parties to this Agreement by signing it
(called the "Shareholders") and Ameribank Corporation, an Oklahoma corporation
(called the "Trustee").
The Shareholders believe it to be for the best interests of all the holders
of Common Stock and other voting stock of the Bank that the Bank shall be
managed by the Trustee for a period of ten (10) years from this date.
They believe that their object can best be accomplished by giving to
the Trustee as their agent and attorney- in-fact irrevocable powers as are set
forth under the terms and conditions of this Voting Trust Agreement.
Now, this Agreement provides that:
The Shareholders, in consideration of their mutual promises, agree to
and with each other and with the Trustee, and the Trustee agrees with the
Shareholders as follows:
1. By signing this Agreement, or a counterpart, each of the
Shareholders holding shares of the Common Stock and/or other voting stock of
the Bank, to the number set opposite his, her or its name, as subscribed, and
the additional voting shares now owned or subsequently acquired by the
Shareholders during the term of this Agreement, respectively, assigns the same
to the Trustee and severally agrees to deposit the stock certificates, with
proper transfers in favor of the Trustee, with the Trustee, and to receive in
exchange voting trust certificates as provided, and the shares represented by
the stock certificates deposited shall be transferred upon the books of the
Bank to the name of the Trustee, who is fully authorized and empowered to cause
the transfers to be made, and also to cause any further transfers of the shares
to be made which may become necessary through any change of the persons holding
the office of the Trustee, as provided. During the period when this Agreement
shall be in force, the Trustee shall possess the legal title to the shares
deposited and be entitled to exercise all rights of every kind and nature,
including the right to vote in person or by proxy, in any respect to any or all
shares. It is understood, however, that the holders of voting trust
certificates to be issued by the Trustee shall be entitled to receive payments
of all dividends other than pro-rata distributions of additional voting shares
of the Bank by way of stock dividends or partial liquidations, if any, declared
by the Bank with respect to the shares of the Common Stock deposited with the
Trustee. It is further understood that stock distributions shall be issued in
the
10
name of the Trustee as additional deposits and that the Trustee shall issue
additional voting trust certificates.
2. The Trustee does hereby agree with the Shareholders that from time
to time, upon request, the Trustee will cause to be issued to the Shareholders,
in respect to all stock deposited by them, voting trust certificates to an
aggregate amount equal to the amount of all shares of the Common Stock so
deposited, which voting trust certificates shall be in substantially the
following form:
UNITED BANK
Certificate
No. ______ Voting Trust Certificate ______ shares
This certifies that ______ has deposited ______ shares of the Common
Stock of the above-named corporation with the Trustee named, under a Voting
Trust Agreement, dated ____________ 1997, between Ameribank Corporation,
Trustee, and certain Shareholders of United Bank. This certificate and the
interest represented is transferable only on the books of the Trustee upon its
presentation and surrender. The holder of this certificate takes it subject to
all the terms and conditions of the above Voting Trust Agreement between the
Trustee and the Shareholders of the above-named corporation, and becomes a
party to the Agreement and is entitled to its benefits.
IN WITNESS, the Trustee has caused this certificate to be signed this
____ day of ____________ 1997.
--------------------------------
3. Except as otherwise provided, upon the declaration of any
dividends by the Bank with respect to the shares of any of the classes of stock
deposited with the Trustee, the Trustee shall cause all dividends to be
distributed by the Bank pro rata among the Shareholders in proportion to the
number of shares of that class of stock upon which the particular dividend is
paid, represented by the voting trust certificates issued to and held by each
of them.
4. This Voting Trust Agreement shall be effective and remain in force
between the parties from its date to and including the ____ day of ____________
2007, at 12:00 noon, EST, and for and during the period the Shareholders agree
with each other and with the Trustee, and the Trustee accepts this trust upon
the condition of this Agreement, that the Shareholders will not sell, transfer
or otherwise dispose of their respective shares of stock deposited; but the
Shareholders shall be at liberty to deal with their voting
11
trust certificates by way of sale, transfer or other disposition, as they
choose subject to any Shareholder's Buy-Sell Agreement applicable to such
shares. Upon presentation and surrender to the Trustee of any voting trust
certificate sold or transferred, by the purchaser or transferee, the Trustee
shall, in exchange for the voting trust certificate surrendered, issue and
deliver to the purchaser or transferee a new voting trust certificate in the
form set forth above.
5. In the event of dissolution or liquidation of the Bank during the
period of this Voting Trust Agreement, in such a manner as to entitle the
holders of shares of any class of its stock to liquidating dividends, the
Trustee shall cause all liquidating dividends to be distributed by the Bank pro
rata among the Shareholders in proportion to the number of shares of those
respective classes of stock upon which liquidating dividends are paid,
represented by the voting trust certificates issued to and held by each of
them.
6. In the event of a merger or consolidation involving the Bank, the
termination date shall be accelerated to the effective date of the
consolidation or merger unless the Trustee, gives notice not later than thirty
days after the merger or consolidation, to the holders of the voting trust
certificates of an election to continue this Agreement for its full term,
substituting where appropriate the voting shares issued out of the
consolidation or merger for the shares initially deposited with the Trustee.
7. Upon the termination of this Voting Trust Agreement certificates
for the shares of the various classes of stock deposited with the Trustee shall
be delivered by the Trustee to the holders of voting trust certificates, in the
proportion of their respective holdings, upon presentation and surrender to the
Trustee of the voting trust certificates.
8. Nothing contained here shall deprive the Trustee of the privilege
enjoyed by all the Shareholders of selling or otherwise disposing of, at its
pleasure, any voting trust certificate issued to it, with respect to shares of
stock deposited by it, if any, or of purchasing additional voting trust
certificates, or of purchasing additional shares of stock of the Bank.
9. The Trustee shall not be entitled to any compensation for its
services as trustee, but the Shareholders shall reimburse it and hold it
harmless for any expenses and disbursements reasonably incurred by the Trustee
in connection with any litigation which may arise in respect to this Voting
Trust Agreement or in respect to the Bank, to which the Trustee is a necessary
party.
10. Upon the dissolution or resignation of the Trustee, a Successor
Trustee shall be appointed by the majority vote of the Shareholders. The term
"trustee" or "trustee" as used in this
12
Agreement shall apply to the Trustee and its successor, and all the provisions
of this Agreement shall apply equally to the Trustee and to its successors.
11. In voting on all matters which may come before any meeting of
Shareholders of the Bank, the Trustee and Successor Trustee shall exercise
their best judgment, but it is understood that the Trustee incurs no
responsibility by reason of any error of law or by any matter or thing done or
omitted under this Agreement, except for their own individual malfeasance.
12. From time to time after this Agreement has taken effect the
Trustee, or its successor, may receive deposits of any additional stock
certificates representing full-paid shares of the Common Stock or other voting
stock of the Bank, upon the terms and under the conditions of this Voting Trust
Agreement, and in respect of all deposits received the Trustee shall issue and
deliver voting trust certificates similar to those mentioned above entitling
the holders to all the rights specified above.
13. The Trustee by signing this Agreement, or a counterpart, accepts
the trust created.
IN WITNESS WHEREOF, the several parties have set their hands and seals
as of the date first written above.
NO. AND CLASS
OF SHARES
SHAREHOLDER ADDRESS DEPOSITED
----------------------------- P. O. Box 1089 ------------------
D. Xxxxxx Xxxxxxxx Xxxxxxx, XX 00000 ------------------
P. O. Box 3515 ------------------
----------------------------- Xxxxxxx, XX 00000 ------------------
Xxxx X. Xxxxxx
P. O. Box 1089 ------------------
----------------------------- Xxxxxxx, XX 00000 ------------------
Xxxxxx X. Xxxx, Xx.
TRUSTEE ADDRESS
P .O. Box 0000
XXXXXXXXX XXXXXXXXXXX Xxxxxxx, XX 00000
By:
-----------------------
Its
----------------------
