EXECUTION COPY
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement"),
dated as of August 9, 1999, is made by and among GOLD BANC
CORPORATION, INC., a Kansas corporation ("Gold Banc"), GOLD BANC
ACQUISITION CORPORATION VIII, INC., a Kansas corporation
("Acquisition Subsidiary"), and UNION BANKSHARES, LTD., a
Delaware 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. 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 8.14 hereof.
"401(k) Plan" shall have the meaning set forth in
Section 5.17 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'sor 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 VIII, 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, together with the Schedules and Exhibits hereto.
"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 Effective Time.
"Bank" means Union Bank & Trust, a Colorado banking
corporation.
"BHC Act" means the Banking Holding Company Act of
1956, as amended, and the regulations promulgated pursuant
thereto.
"Business Day" means a day other than Saturday, Sunday
or another day on which commercial banks in Kansas 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 pursuant thereunder.
"Company" means Union Bankshares, Ltd., a Delaware
corporation, and its successors and assigns.
"Company Common Stock" means the common stock, par
value $.001 per share, of the Company.
"Company Confidential Information" shall have the
meaning set forth in Section 6.6 hereof.
"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,
par value $.001 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 Counsel" shall have the meaning set forth in
Section 8.10 hereof.
"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,
license, 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.
"DGCL" means the Delaware General Corporation Law,
title 8 of the Delaware Code, as amended from time to time.
"Employment Agreements" means the existing employment
agreements, each dated December 31, 1992, between the Company and
each of the Significant Stockholders.
"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 Agent" shall have the meaning set forth in
Section 2.8 hereof.
"Effective Time" shall have the meaning set forth in
Section 2.2 hereof.
"ERISA" means the Employee Retirement Income Security
Act of 1974, as amended, and the regulations promulgated pursuant
thereto.
"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. 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.
"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.
"Gold Banc Confidential Information" shall have the
meaning set forth in Section 5.15 hereof.
"Gold Banc Measurement Price" means the average of the
closing sales price of Gold Banc Common Stock as reported by
Nasdaq on each of the ten (10) consecutive trading days ending on
the day immediately preceding the meeting of the stockholders of
the Company held to vote on this Agreement.
"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.
"Gold Banc SEC Documents" shall have the meaning set
forth in Section 4.7 hereof.
"Gold Banc's Counsel" shall have the meaning set forth
in Section 8.9 hereof.
"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.
"Merger" shall have the meaning set forth in the
Recitals hereof.
"Nasdaq" means the Nasdaq National Market System.
"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.
"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, Xxxxx
X. Xxxx, Xxxxxxx X. Xxxxxxxx and Xxxxxx X. Xxxxx and their heirs,
successors and assigns.
"Subsidiaries" means, collectively, the Bank and the
Trust, and "Subsidiary" means either one of the Subsidiaries.
"Surviving Corporation" shall have the meaning set
forth in Section 2.1 hereof.
"Total Equity Capital" means, with respect to any
Person, the sum of outstanding capital stock, paid in capital,
retained earnings and current earnings year to date, all
determined in accordance with GAAP, but excluding any FAS 115
adjustments.
"Termination Fee" shall have the meaning set forth in
Section 11.3 hereof.
"Trust" means the Delaware Business Trust formed by the
Company on October 14, 1998.
"Trust Common Securities" shall have the meaning set
forth in Section 3.2(c) hereof.
"Trust Preferred Securities" shall have the meaning set
forth in Section 3.2(c) hereof.
"Welfare Plans" shall have the meaning set forth in
Section 5.17 hereof.
"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.
"Year 2000 Compliant" means the ability to perform date
sensitive functions for all dates before and after January 1,
2000.
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, 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), the proper officers
of the Company and Acquisition Subsidiary shall execute and
acknowledge appropriate certificates of merger that shall be
filed with the Kansas Secretary of State and the Delaware
Secretary of State on the first Business Day following the
Closing Date, all in accordance with the KGCC and the DGCL. The
Merger shall become effective on the date that such certificates
of merger have been filed with the Kansas Secretary of State and
the Delaware Secretary of State in accordance with the KGCC and
the DGCL (the "Effective Time"). The Closing shall be on a day
(the "Closing Date") occurring not less than two (2) and not more
than five (5) Business Days before the Effective Time and not
later than forty-five (45) days following the satisfaction or
waiver, to the extent permitted hereunder, of the last of the
conditions to the consummation of the Merger specified in Article
VII and Article VIII of this Agreement at 10:00 a.m. at the
office of Gold Banc, 00000 Xxxx Xxxxxx, Xxxxxxx, Xxxxxx 00000,
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.
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 Colorado, 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. Subject to
Kansas law and Delaware law, at the Effective Time (a)
Acquisition Subsidiary shall possess all assets and property of
every description, and every interest therein, wherever located,
and the rights, privileges, immunities, powers, franchises, and
authority, of a public as well as of a private nature, of the
Company and all obligations belonging to or due each of the
Company and Acquisition Subsidiary shall be vested in Acquisition
Subsidiary without further act or deed; (b) title to any real
estate or any interest therein vested in the Company shall not
revert or in any way be impaired by reason of the Company Merger;
(c) all rights of creditors and all liens on any property of the
Company shall be preserved unimpaired; and (d) Acquisition
Subsidiary shall be liable for all the obligations of the
Company, and any claim existing, or action or proceeding pending,
by or against either of the Company or Acquisition Subsidiary,
may be prosecuted to judgment with the right of appeal, as if the
Company Merger had not taken place.
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 shall, and will be
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 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 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, of
which 2,350,514 shares are issued and outstanding as of the
date hereof shall be converted into the number of shares
(the "Exchange Ratio") of Gold Banc Common Stock determined
by dividing $23.05 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 $16.00, then the
Exchange Ratio shall be 1.4406 and (ii) if the Average Gold
Banc Stock Price is less than $13.00, then the Exchange
Ratio shall be 1.7731. Fractions of shares determined
pursuant to this Section 2.7(b) shall be rounded to three
decimal places.
Section 2.8 Exchange of Certificates.
(a) Gold Banc, on behalf of Acquisition Subsidiary,
shall make available to American Stock Transfer and Trust
Company, Inc., which is hereby designated as exchange agent
(the "Exchange Agent"), at and after the Effective Time,
such number of shares of Gold Banc Common Stock as shall be
issuable to the holders of Company Common Stock in
accordance with Section 2.7 hereof. As soon as practicable
after the Closing Date, 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
Agent 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 Agent, 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 Dividends. 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 (a) a record date
subsequent to the Effective Time and prior to such surrender and
(b) 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 Certificate 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, including actions taken
pursuant to Rule 14d-9 under the Exchange Act, 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 law, the
Articles of Incorporation and Bylaws of Gold Banc and 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.
Section 2.12 Adjustments. If at any time during the
period between the date hereof and the Effective Time, any change
in the 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 during such period, the
Exchange Ratio shall be adjusted on a pro rata basis.
Section 2.13 Voting Agreements. Concurrently 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.
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 Good Standing.
(a) The Company is a corporation duly organized,
validly existing and in good standing under the laws of the
State of Delaware 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 Certificate 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 would not materially and adversely
affect the business, operations, properties or financial
condition of the Company.
(b) The Bank is a wholly-owned subsidiary of the
Company and is a Colorado banking corporation duly
organized, validly existing and in good standing under the
laws of the State of Colorado, 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
Certificate 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 would not materially and
adversely affect the business, operations, properties or
financial condition of the Bank.
(c) The Trust 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 itsproperties and conduct its business as it is
now being conducted. The Trust 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. The Trust 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 would not materially and
adversely affect the business, operations, properties or
financial condition of the Trust.
(d) The Company has no subsidiaries other than the
Bank and the Trust.
Section 3.2 Capital Structure.
(a) The Company. As of the date hereof, the
authorized capital stock of the Company consists only of
10,000,000 shares of Company Common Stock and 500,000 shares
of Company Preferred Stock, of which 2,350,514 shares of
Company Common Stock and no shares of Company Preferred
Stock 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.
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, except for the
options listed on Schedule 3.2(a) hereto (the "Company Stock
Options"). 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 240,000 shares of common stock, par value
$12.50 per share, of which 470 shares are issued and
outstanding. All of the issued and outstanding shares of
common stock of the Bank are owned beneficially and of
record, free and clear of all Liens (except for a Lien in
connection with a bank stock loan from Gold Bank, N.A.), by
the Company. 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) The capital of the Trust consists only of 41,935
Nine Percent Trust Common Securities ("Trust Common
Securities") issued and outstanding and 1,355,790 Nine
Percent Cumulative Trust Preferred Securities ("Trust
Preferred Securities") issuedand outstanding. All of the
issued and outstanding Trust Common Securities are owned
beneficially and of record, free and clear of all Liens, by
the Company. All outstanding Trust 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 the Trust, whether or not issued,
including without limitation securities convertible into or
evidencing the right to purchase any Trust Common Securities
or Trust Preferred Securities or any other securities of the
Trust.
Section 3.3 Authority. The Company has all
requisite corporate power and authority to enter into 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
DGCL and the Company's Certificate 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 DGCL. 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 DGCL, and constitutes, or will
constitute, the legal, valid and binding obligations of the
Company, enforceable against the Company in accordance with their
terms.
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 and the requirements of Rule 14d-9 under the
Exchange Act. 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 Certificate 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
except the loan to the Company from Gold Bank, N.A. or (iii)
result in the creation or imposition or any Lien upon the
capital stock or the assets of the Company or any
Subsidiary.
(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, Licenses
or Contracts applicable to the Company or any of the
Subsidiaries except for any violations, breaches or defaults
that would not have a material adverse effect on the
business, operations, properties or financial condition of
the Company and the 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 would not
have a material adverse effect on the business, operations,
properties or financial condition of the Company and the
Subsidiaries, taken as a whole.
Section 3.6 SEC Documents. The Company has 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, 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. The financial statements of the
Company included in the Company 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 inaccordance
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 present fairly, in all material
respects, 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 the Company and the
Subsidiaries as of their respective dates and the consolidated
results of operations and the consolidated cash flows of the
Company and the Subsidiaries for the periods presented therein.
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. Since March
31, 1999 there has been no material adverse change in the
financial condition, properties, assets, liabilities or business
of the Company and the Subsidiaries, taken as a whole.
Section 3.7 Information Supplied. When considered
in the aggregate, 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 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 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 all tax returns required to be filed by
them, and the Company and the Subsidiaries have timely paid and
discharged all taxes due in connection with or with respect to
the filing of such tax returns and, except as disclosed on
Schedule 3.9, 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 in all material respects the taxes
required to be reflected on such tax return. Neither the IRS nor
any other GovernmentalEntity 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 other real estate
owned 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 would have a material adverse
effect on the business, operations, properties or financial
condition of 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 the Trust 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 real and personal properties and assets, in
each case free and clear of any Liens, except as reflected on the
Company's consolidated financial statements, the Lien of Gold
Bank, N.A. on the stock of the Bank and except for the Lien of
current taxes, covenants and restrictions of record, and other
minor imperfections of title not affecting marketability, which
Liens do not materially affect the value of such property and do
not interfere with the use made of such property by the Company
or the Subsidiaries. Attached hereto as Schedule 3.10 is a
complete list of all real property owned by the Company or any of
the Subsidiaries. Since March 31, 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.
Section 3.11 Leases.
(a) Schedule 3.11(a) hereof contains 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 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 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 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 assets
licensed by the Company or its Subsidiaries in the ordinary
course of business.
(b) Neither the Company nor any of the Subsidiaries
has infringed 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, except for such matters as would
not materially and adversely affect the business,
operations, properties or financial condition of the Company
and its Subsidiaries, taken as a whole, or 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 patents, copyrights, trademarks, trade
names and service marks, both foreign and domestic, owned,
possessed or used by the Company or any of the Subsidiaries.
The Company or one or more of the Subsidiaries owns the
entire right, title and interest therein and each thereof is
in full force and effect.
(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, except for such matters as would not have a
material adverse effect on the business, operations,
properties or financial condition of the Company and its
Subsidiaries, taken as a whole.
Section 3.13 Regulatory Filings. The Company and
each of the Subsidiaries have timely filed all material 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, no
Governmental Entity has initiated any proceeding or investigation
into the business or operations of the Company or any of the
Subsidiaries. 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 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. The Company will also 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 material 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
material requirements of Law and all material agreements to which
the Company or any of the Subsidiaries is a party 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 material
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 five (5) 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 five-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 or made available 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, taken as a whole, 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.
Gold Banc may obtain at its option and expense on or
prior to the Closing Date an environmental audit of any or all
properties and assets of the Company and the Subsidiaries whether
directly owned, leased or classified as other real estate owned.
Such environmental audit shall constitute a part of the due
diligence process, should Gold Banc choose to pursue it, and if
Gold Banc determines in its sole discretion that such
environmental audit reflects the potential of a material
environmental problem with respect to any of the properties or
assets of the Companyor any of the Subsidiaries, then Gold Banc
may terminate this Agreement pursuant to Section 8.3 hereof.
Section 3.17 Labor Matters.
(a) The Company and the Subsidiaries are in compliance
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 business, operations or financial condition of
the Company and its Subsidiaries, taken as a whole.
(b) 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 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
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. There are no Actions pending or, to the knowledge of
the Company, threatened which could prevent or interfere with the
consummation of the transactions contemplated by this Agreement.
Section 3.20 Contracts. Except as set forth on
Schedule 3.20 hereof, neither the Company nor either of the
Subsidiaries is a party to or subject to any:
(a) employment 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) material lease or license with respect to any
property, real or personal, whether the Company or either of
the Subsidiaries is landlord or tenant, licensor or
licensee, involving a liability or obligation of the Company
or any of the Subsidiaries as obligor, except for the Leases
referenced in Section 3.11 hereof;
(d) agreement, contract or indenture relating to the
borrowing of money by the Company or either of the
Subsidiaries, excluding items made in the ordinary course of
business;
(e) agreement with any present or former officer,
director, stockholder or affiliate of the Company or any
Subsidiary, or any Person controlling, controlled by or
under common control with any of the foregoing; or
(f) 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 either 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. 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 either
of the Subsidiaries of this Agreement or any of the transactions
contemplated hereby.
Section 3.22 Broker's Fees. Other than the
engagement of The Xxxxxxx Company, 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 Conduct. From March 31, 1999 until the
date hereof:
(a) there has been no material adverse change in the
financial condition of, or in the properties, assets,
liabilities, rights or business, taken as a whole, of the
Company or any of the Subsidiaries 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; and
(b) the business affairs of the Company and the
Subsidiaries have been conducted and carried on only in
their ordinary and regular course of business, and neither
the Company nor any of the Subsidiaries has incurred or
become subject to any liabilities or obligations other than
those incurred in their ordinary course of business.
Section 3.24 Absence of Certain Events. Except as
contemplated by this Agreement and set forth in Schedule 3.24,
since March 31, 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 customer deposits in
the Bank, FHLB advances, federal funds purchases, and Federal
Reserve borrowings); (v) any creation or assumption by the
Company or any of the Subsidiaries of any Lien on any of their
assets; (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; 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 business, operations, properties or financial condition of
the Company and the Subsidiaries, taken as a whole.
Section 3.25 Loans.
(a) The Bank is not 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 or the Bank or banking
regulators, except as reflected on a list previously
provided to Gold Banc and Acquisition Subsidiary during the
due diligence period;
(b) Except as set forth in Schedule 3.25(b), neither
the Company nor any Subsidiary is a party to any written or
oral loan agreement, note, or borrowingarrangement,
including any loan guaranty, with any 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;
(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 business, operations, properties or financial condition
of the Company and the Subsidiaries, taken as a whole.
Section 3.26 Opinion of Financial Advisers. The
Company has received the written opinion of The Xxxxxxx Company,
Inc., investment advisor to the Company, to the effect that, as
of the date hereof, the consideration to be received by the
holders of Company Common Stock in the Merger is fair, from a
financial point of view, to such holders.
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-interest.
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) in the aggregate any Gold Banc Common Stock.
Section 3.29 Undisclosed Liabilities; Adverse
Agreements.
(a) Except as disclosed 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 business,
operation, properties or financial condition of the Company
and the Subsidiaries, taken as a whole.
(b) Neither the Company nor any of the Subsidiaries is
a party to any Contract or any Order, or subject to any Law,
which materially and adversely affects or is reasonably
likely to result in a material adverse effect on the
business, operations, properties or financial condition of
the Company or any of the Subsidiaries, except for such Laws
similarly affecting other entities in similar business to
the Company.
Section 3.30 Disclosure. Copies of all documents
heretofore or hereafter delivered or made available to Gold Banc
or Acquisition Subsidiary pursuant hereto are and will be
complete and accurate in all material respects. When considered
collectively, the representations and warranties of the Company
in this Agreement and in the other documents delivered pursuant
hereto and in any statement, document, certificate or exhibit
furnished or to befurnished by the Company pursuant to this
Agreement or in connection with the transactions contemplated
hereby do not contain and will not contain any untrue statement
of a material fact and do not omit and will not omit a material
fact necessary to make the statements contained herein or therein
not misleading. There is no fact which the Company has not
disclosed in writing to Gold Banc or the Acquisition Subsidiary
which materially adversely affects, or would reasonably be
expected to materially adversely affect, the business,
operations, properties or financial condition of the Company and
of the Subsidiaries, taken as a whole.
Section 3.31 No Dissenter's Rights. The Company's
Common Stock is designated as a national market system security
on its interdealer quotation system by the National Association
of Securities Dealers, Inc. and, under Section 262 of the DGCL,
the stockholders of the Company are not entitled to any
dissenter's rights in the Merger.
Section 3.32 Deductibility of Severance Payments. No
severance or other payments to be made to the Significant
Stockholders 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 3.33 Accruals.
(a) The Company and the Bank have properly accrued
consistent with past practices for all current and
carry-over vacation time for their employees through the date
hereof.
(b) The Company and the Bank have properly accrued
consistent with past practices for all mandatory and
discretionary matching contributions to the Company's 401(k)
Plan through the date hereof.
(c) The Company and the Bank have properly accrued
consistent with past practices for discretionary bonuses
that may be payable to their employees as contemplated by
Section 5.2(c)(i) and (ii) through the date hereof.
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 not be affected by any
investigation conducted by the Company or its representatives.
Section 4.1 Corporate.
(a) 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 would not materially and
adversely affect the business, operations, properties or
financial condition of Gold Banc.
(b) 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 would not materially and
adversely affect the business, operations, properties or
financial condition of Acquisition Subsidiary.
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.
There are no outstanding or authorized options, warrants,
agreements, subscriptions, calls, demands or rights of any
character relating to the capital stock of Gold Banc,
whether or not issued, including without limitation
securities convertible into or evidencing the right to
purchase any Gold Banc Common Stock, Gold Banc Preferred
Stock or any other securities of Gold Banc, except as
reflected in the Gold Banc SEC Documents.
(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 ("Rule4460"), 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 constitutes, or will
constitute, the legal, valid and binding obligations of Gold
Banc, enforceable against Gold Banc in accordance with their
terms.
(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 constitutes, or will
constitute, the legal, valid and binding obligations of
Acquisition Subsidiary, enforceable against Acquisition
Subsidiary in accordance with their terms.
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 approvethis
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.
(b) Gold Banc and Acquisition Subsidiary have not
violated, breached or defaulted, are not currently in
violation, breach or default of, and the consummation of the
transactions contemplated hereby will not cause any
violation, breach or default of, any Laws, Orders, Licenses
or Contracts applicable to Gold Banc or Acquisition
Subsidiary.
(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 would
not have a material adverse effect on the business,
operations, properties or financial condition of 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, 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.
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. Since March
31, 1999 there has been no material adverse change in the
financial condition, properties, assets, liabilities, business or
prospects of Gold Banc.
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 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 in order to make the statements
therein, in light of the circumstances under which they are made,
notmisleading. If at any time prior to the Effective Time any
event with respect to Gold Banc or Acquisition Subsidiary, or
with respect to other information supplied by Gold Banc 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,
such event will be so described, and such amendment or supplement
be promptly filed with the SEC and, as required by law,
disseminated to the stockholders of Gold Banc. The Proxy
Statement, insofar as it relates to Gold Banc or Acquisition
Subsidiary or other information supplied by Gold Banc 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.
Section 4.9 Internal Controls and Records. Gold
Banc and its 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 all
tax returns required to be filed by it, and Gold Banc has timely
paid and discharged all taxes due in connection with or with
respect to the filing of such tax returns and has 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
Gold Banc 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. Neither the IRS nor 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 of Gold Banc. 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 the business,
operations, properties or financial condition of Gold Banc.
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. 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. 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 its 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 best
knowledge Gold Banc: (i) the operations of Gold Banc and each of
its 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 its 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 its 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 its subsidiaries may be liable; (iii) none of
the operations of Gold Banc or any of its subsidiaries nor any of
the properties owned by Gold Banc or any of its 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 its 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 its
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 its subsidiaries; (vi) neither Gold Banc nor any
of its subsidiaries has ever been notified by a Governmental
Entity, or any private party, that Gold Banc or any of its
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 its 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 adverselyaffected 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 its subsidiaries' respective business and operations will be
Year 2000 Compliant.
Section 4.15 Legal Proceedings. Except as disclosed
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 its 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. 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.
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 Conduct. From March 31, 1999 until the
date hereof:
(a) there has been no material adverse change in the
financial condition of, or in the properties, assets,
liabilities, rights or business, taken as a whole, of Gold
Banc or any of its subsidiaries 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; and
(b) the business affairs of Gold Banc and its
subsidiaries have been conducted and carried on only in
their ordinary and regular course of business, and neither
Gold Banc nor any of its subsidiaries has incurred or become
subject to any liabilities or obligations other than those
incurred in their ordinary course of business.
Section 4.19 Undisclosed Liabilities; Adverse
Agreements.
(a) Except as disclosed 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 the business,
operation, properties or financial condition of Gold Banc
and its subsidiaries, taken as a whole.
(b) Neither Gold Banc nor any of its subsidiaries is a
party to any Contract or any Order, or subject to any Law,
which materially and adversely affects or is reasonably
likely to result in a material adverse effect on the
business, operations, properties or financial condition of
Gold Banc or any of its subsidiaries, except for such Laws
similarly affecting other entities in similar business to
Gold Banc.
Section 4.20 Disclosure. Copies of all documents
heretofore or hereafter delivered or made available to the
Company pursuant hereto are and will be complete and accurate.
When considered collectively, the representations and warranties
of Gold Banc in this Agreement and in the other documents
delivered pursuant hereto and in any 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 do not contain and will not contain any
untrue statement of a material fact and do not omit and will not
omit a material fact necessary to make the statements contained
herein or therein not misleading. There is no fact which Gold
Banc has not disclosed in writing to the Company which materially
adversely affects, or may materially adversely affect the
business, operations, properties or financial condition of Gold
Banc.
ARTICLE V
COVENANTS OF THE COMPANY
Section 5.1 Affirmative Covenants of the Company.
Unless the prior written consent of Gold Banc shall have been
obtained, and which consent will be given or denied within five
Business Days of receipt of written request for such consent (any
request not denied during such period being considered an
approval), and except as otherwise expressly contemplated herein,
the Company shall and shall cause each of its Subsidiaries to (i)
operate its business only in the usual, regular, and ordinary
course, consistent with past practices, (ii) preserve intact its
business organization and assets and maintain its rights and
franchises; (iii) preserve substantially the Company's and each
of the Subsidiaries' relationships with suppliers, customers and
employees, (iv) perform in all material respects the Company's
and the Subsidiaries' obligations under the Contracts and
Licenses, (v) comply in all material respects with all applicable
Laws, (vi) maintain as valid and enforceable all policies of
insurance as referenced in Section 3.14 herein, (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)
attached hereto, and (viii) except as may be required in the
exercise of the fiduciary duties of the Company's Board of
Directors, take no action which would (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 and except as
may be required in the exercise of the fiduciary duties of the
Company's Board of Directors, 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 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 five
Business Days (two Business Days in the case of a loan,
commitment or series of loans or commitments described in clause
(a) below) of receipt of written request for such consent (any
request not denied during such period being considered an
approval):
(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
in compliance with the Bank's investment policy as in effect
on the date hereof, or make any material change in its
investment portfolio;
(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; provided,
however, that (i) with respect to employees other than the
Significant Stockholders, annual merit increases (not to
exceed in any case four percent (4.0%) per annum) may be
paid, and employee bonuses consistent with past practices
may be accrued up to (but not after) the Closing Date, which
accrued bonuses shall be paid consistent with past practices
in January 2000; (ii) with respect to the Significant
Stockholders, employee bonuses consistent with past
practices may be accrued up to (but not after) the Closing
Date, which accrued bonuses may be paid consistent (X) with
past practices at the discretion of the Board of Directors
of the Surviving Corporation and (Y) with the terms and
conditions of the existing Employment Agreements of the
Significant Stockholders; (iii) the Company may continue to
accrue consistent with past practices for vacation time for
its employees and shall pay to individual employees on or
prior to the Closing Date, amounts for accrued and carry-over
vacation time in excess of the vacation time the Gold
Banc will permit the employee to carry forward and take
after the Closing Date; and (iv) subject to Section 5.17
hereof, the Company may continue to accrue consistent with
past practices and shall pay, on or prior to the Closing
Date, mandatory and discretionary employer matching
contributions with respect to the Company's 401(k) plan.
(d) make any capital expenditure or enter into any
material contract or commitment (except loan commitments as
permitted in Subparagraph (a) of this Section 5.2 and except
commitments required for its performance of its obligations
hereunder); involving an obligation or commitment in excess
of $25,000 or engage in any transaction 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 either 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 the
Trust and any dividends from the Bank to the Company to
cover Company's expenses consistent with past practices.
(f) amend the Certificate of Incorporation, Bylaws or
any other governing document of the Company or either 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 either 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 either 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) 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) create, renew, amend or terminate or give notice
of a proposed renewal, amendment or termination of, any
material Contract to which the Company or either of its
Subsidiaries is a party or by which the Company or either 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 either 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; provided, however, that
the Company shall be entitled to settle pending litigation
and dispose of other real estate owned for amounts up to
$50,000; or
(r) incur or guaranty any debt (other than customer
deposits in the Bank, FHLB advances, federal funds purchases
and Federal Reserve borrowings).
Section 5.3 Inspection. Between the date hereof and
the Closing Date and upon reasonable notice, 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 each 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 each 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, 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 Tax Returns. Within sixty (60) days
after the Closing Date, the Surviving Corporation shall prepare
and file consolidated federal and state income tax returns for
the Company and its Subsidiaries covering the stub period
beginning on the first day of theCompany's current fiscal year
and ending at the Effective Time, which returns shall be reviewed
by KPMG LLP, accountants for Gold Banc.
Section 5.6 Right to Attend Meetings. The Bank
shall allow a representative of Gold Banc to attend as an
observer all meetings of the Board of Directors of the Bank 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 Bank's officials at which policy is
being made. The Bank 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 Bank 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
Bank.
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) 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, facilitate, assist 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 5.7(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-Interest Accounting
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 from receiving
pooling-of-interest accounting treatment.
Section 5.13 Cooperation by the Company. The Company
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
Gold Banc and Acquisition Subsidiary in connection therewith,
including using commercially 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
commercially 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.
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.
(a) 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 Union Bankshares, Ltd. 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)
consistent with past practices, make a discretionary profit
sharing contribution (not to exceed four percent (4%) of the
employees' compensation, as defined under the 401(k) Plan)
to the 401(k) Plan for the partial plan year ending on the
401(k) Plan termination date; (iii) except as set forth
immediately above in (i) and (ii) of this paragraph, cease
all other contributions to the 401(k) Plan as of the day
before the Closing Date; (iv) terminate the 401(k) Plan and
fully vest all participant account balances in such plan as
of the day before the Closing Date; (v) resign as plan
administrator of the 401(k) Plan; and (vi) 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. Gold Banc will provide to
the Company form resolutions and other materials prior to
the closing necessary for the effectuation of the
termination of the 401(k) Plan by the Company, which
materials the Company and the plan administrator and
trustees shall be entitled to rely upon without incurring
any liability.
(b) All of the Company's welfare plans (as defined in
Section 3(1)) of ERISA (but regardless of whether such plan
is covered by ERISA) (the "Welfare Plans"), shall be
maintained by the Surviving Corporation until such time as
Surviving Corporation wishes to terminate such plans. The
parties agree that the plan administrators and trustees of
each Welfare Plan will resign as of the Closing Date and be
replaced with persons designated by Gold Banc. After the
Closing Date, the Surviving Corporation shall become the
plan sponsor of the Welfare Plans. Gold Banc and Company
agree to cooperate in fulfilling this covenant.
Section 5.18 Deductibility of Severance Payments.
(a) The Company shall, and shall cause each of the
Subsidiaries to, use all reasonable efforts to ensure that
no severance or other payments are made to the Significant
Stockholders or otherwise by the Company or any of the
Subsidiaries which 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 8.14 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.
Each outstanding Company Stock Option shall be assumed by Gold
Banc on the same terms and conditions, except that the options
shall be modified (i) to provide for the issuance of shares of
Gold Common Stock, (ii) to adjust each option price by dividing
such option price by the Exchange Ratio and(iii) to adjust the
number of shares subject to each option by multiplying such
number of shares by the Exchange Ratio, all as contemplated by
Section 424(a) of the Code.
Section 6.6 Confidentiality. Except as and to the
extent required by Laws, Gold Banc and Acquisition Subsidiary
will not disclose or use, and will direct their representatives
not to disclose or use to the detriment of the Company or any of
the Subsidiaries any Company Confidential Information furnished,
or to be furnished, to Gold Banc, Acquisition Subsidiary or their
representatives at any time or in any manner other than in
connection with the evaluation of the transactions contemplated
herein. "Company Confidential Information" includes any
information about the Company or the Subsidiaries and their
business unless (a) such information is already known to Gold
Banc, Acquisition Subsidiary or their representatives not bound
by a duty of confidentiality or such information becomes publicly
available through no fault of Gold Banc, Acquisition Subsidiary
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 the Company, each of Gold
Banc and Acquisition Subsidiary will promptly return to the
Company or destroy any Company Confidential Information in its
possession and certify in writing to the Company that it has so
returned or destroyed such Company Confidential Information.
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 Indemnification of Directors and
Insurance.
(a) Following the Effective Time, Gold Banc shall
cause the Surviving Corporation to continue to indemnify the
Company's directors and officers, in the same manner and to
the same extent as such indemnification is provided for in
the Company's Certificate of Incorporation and Bylaws as of
the date of this Agreement.
(b) After the Effective Time, Gold Banc shall cause
the Surviving Corporation to maintain in effect the current
policies of directors' and officers' liability insurance
maintained by the Company, or a tail policy of comparable
coverage and amount, with respect to matters arising before
the Effective Time covering the persons who are directors or
officers of the Company immediately prior to the Effective
Time, for a period of up to three years following the
Effective Time, provided that the aggregate premium for such
period shall not exceed $35,000.
Section 6.11 Employee Bonuses. Gold Banc shall cause
to be paid the employee bonuses payable pursuant to Section
5.2(c) hereof in accordance with the terms of Section 5.2(c).
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, such
representation or warranty need only be true and correct in all
material respects as of such 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 an executive
officer 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
Certificate of Incorporation and Bylaws of the Company and the
Bank, and the stockholders of Gold Banc and of Acquisition
Subsidiaryshall 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 the financial condition of, or in the properties,
assets, liabilities, rights or business of 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 Market Price of Gold Banc Common Stock.
The Average Gold Banc Stock Price shall not be less than $11.00.
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 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, 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 an executive officer
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 financial condition of, or in the properties,
assets, liabilities, rights or business of the Company and its
Subsidiaries, taken as a whole, and taking into account for this
purpose the proceeds of any applicable insurance.
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 Bank Holding Company 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. On the Closing
Date, the Total Equity Capital of the Bank shall be not less than
$23,000,000, the reserve for loan and lease loss of the Bank
shall be not less than $2,700,000 and the total indebtedness of
the Company (on an unconsolidated basis) shall not exceed
$10,400,000. 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 or the Bank,
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 Certificate 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 8.9 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 Xxxxxxx, Mag & Fizzell, P.C., counsel
to Gold Banc ("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 Xxxxx, Xxxxxx & Xxxxxx LLP
("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 the Trust, will be deductible
by the Surviving Corporation as interest payments for federal
income tax purposes.
Section 8.11 Qualification for Pooling-of-Interest
Treatment. Gold Banc shall have received an opinion from an
accounting firm reasonably acceptable to Gold Banc 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 8.12 Regarding the Significant Stockholders.
(a) The Company and Gold Banc shall have received from
each Significant Stockholder a letter of resignation from
all positions held by such Significant Stockholder with the
Company or any of the Subsidiaries prior to the Closing
(except that Xxxxx shall remain as a director and the
Chairman of the Board of the Bank).
(b) The Company shall have paid to the Significant
Stockholders the severance payments to which they are
entitled under their Employment Agreements.
(c) Xxxxx X. Xxxx shall have executed and delivered to
Gold Banc a Non-Compete Agreement substantially in the form
attached hereto as Exhibit C.
(d) Xxxxxxx X. Xxxxxxxx shall have executed and
delivered to Gold Banc a Non-Compete Agreement substantially
in the form attached hereto as Exhibit D
(e) Xxxxxx X. Xxxxx shall have executed and delivered
to Gold Banc a Non-Compete Agreement substantially in the
form attached hereto as Exhibit E
Section 8.13 Company Options. Neither the Company's
Board of Directors nor any committee thereof shall have
authorized 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 8.14 Deductibility of Severance Payments.
The Company shall have obtained and Gold Banc shall have received
from Xxxxx, Xxxxx & Xxxxxx, accountants for the Company, a
written (i) calculation of all payments due to the Significant
Stockholders in connection with the Merger or upon the occurrence
of a change in control under their respective employment
agreements, stock option plans, deferred compensation plans, this
Agreement, the Exhibits hereto 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 to the Significant Stockholders 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.
ARTICLE X
SECURITIES LAWS MATTERS
Section 10.1 Registration Statement and Proxy
Statement. Gold Banc shall, at Gold Banc's expense as soon as
practicable prepare and file a registration statement on Form S-4
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 and Gold Banc
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 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 tothe
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 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. 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 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 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 Affiliates. Certificates representing
shares of Gold Banc Common Stock issued to "Affiliates" (as
defined in Rules 145 and 405 adopted under the Securities Act) of
the Company pursuant to this Agreement will be subject to stop
transfer orders (as reasonably required in connection with Rule
145) and will bear a restrictive legend set out in the Affiliate
Letter; provided, however, that following publication of
financial results covering at least thirty (30) days of combined
operations of Gold Banc and the Company and upon receipt of an
opinion of counsel reasonably satisfactory to Gold Banc that a
proposed sale, pledge, transfer or other disposition of a
specified number of shares of Gold Banc Common Stock by an
Affiliate will comply with or will be exempt from the Securities
Act, Gold Banc shall, as promptly as practicable after receipt of
the stock certificates representing such Affiliate's Gold Banc
Common Stock (and in any event within seven (7) business days
after such receipt), direct the transfer agent for the Gold Banc
Common Stock to remove the stop transfer order related thereto
and reissue a stock certificate evidencing such shares to the
Affiliate without such restrictive legend.
Section 10.5 Indemnification by Gold Banc. Gold Banc
agrees to indemnify and hold harmless the Company and its
stockholders, directors, officers, employees, representativesand
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.
Section 10.6 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.
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 before 270 days;
(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 if the other party has
materially breached this Agreement and has not cured such
breach within the earlier of (i) 30 days after the non-breaching
party shall have given notice to the breaching
party of the existence of such breach or (ii) the Closing
Date;
(e) by Gold Banc or the Company upon written notice to
the other of any condition imposed for the benefit of such
party that shall not have been satisfied or waived prior to
the Closing Date;
(f) by the Company if it receives an unsolicited
Acquisition Proposal as contemplated by Section 5.7 hereof,
which the Board of Directors of the Company, in good faith,
believes is superior to the Merger contemplated hereby;
(g) by Gold Banc upon receipt of written notice from
the Company pursuant to Section 5.7(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;
or
(h) by the Company, within five (5) business days
after the meeting of the stockholders of the Company held to
vote on this Agreement, if the Gold Banc Measurement Price
is less than $11.
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 as set
forth in Section 11.3, in the event of termination of this
Agreement for any reason set forth in Section 11.1, other than a
breach thereof, no party hereto shall have any liability to the
other of any nature whatsoever, including any liability for
Damages suffered or claimed to be suffered by reason thereof.
Section 11.3 Termination Fee. The Company agrees to
pay to Gold Banc upon demand a termination fee of $2,000,000 (the
"Termination Fee") if this Agreement is terminated (i) by the
Company pursuant to Section 11.1(f) or (ii) by Gold Banc pursuant
to Section 11.1(g).
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. Except
as expressly provided herein, nothing in this Agreement, express
or implied, is intended to confer on any person other than the
parties hereto or their respective successors and assigns, any
rights, remedies or obligations or liabilities under or by reason
of this Agreement.
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. 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 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:
Xxxxxxx X. Xxxxxxxx
Union Bankshares, Ltd.
0000 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
FAX: (000) 000-0000
with a copy to:
Xxxxxx X. Xxxxxx, XX
Xxxxx, Xxxxxx & Xxxxxx LLP
Suite 4700
000 Xxxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
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 12.7 Law Governing. This Agreement shall be
governed by and construed and enforced in accordance with the
laws of the State of Kansas, except to the extent that Delaware
corporate law applies to the provisions hereof relating to the
Company Merger.
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. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: President and
Chief Operating Officer
ATTEST:
/s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Secretary
GOLD BANC ACQUISITION CORPORATION
VIII, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: President and
Chief Executive Officer
ATTEST:
/s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Secretary
UNION BANKSHARES, LTD.
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Chief Executive Officer
ATTEST:
/s/ Xxxxx X. Xxxx
Name: Xxxxx X. Xxxx
Title: Secretary
STATE OF_________________ )
) ss.
COUNTY OF _______________ )
ON THIS ____ day of _____________1999, before me the
undersigned, a Notary Public in and for the County and the aforesaid, came
Xxxxxxx X. Xxxxx, President and Chief Operating Officer 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 _____________1999, before me the
undersigned, a Notary Public in and for the County and state aforesaid, came
Xxxxxxx X. Xxxxxxx, President and Chief Executive Officer of Gold
Banc Acquisition Corporation VIII, 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 _____________1999, before me the
undersigned, a Notary Public in and for the County and state aforesaid, came
Xxxxxxx X. Xxxxxxxx, Chief Executive Officer of Union Bankshares,
Ltd., a Delaware corporation, and Xxxxx X. Xxxx, 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:
______________________
EXECUTION COPY
________________________________________________________________
________________________________________________________________
AGREEMENT AND PLAN OF REORGANIZATION
By and Among
GOLD BANC CORPORATION, INC.
GOLD BANC ACQUISITION CORPORATION VIII, INC.
and
UNION BANKSHARES, LTD.
August 9, 1999
________________________________________________________________
________________________________________________________________
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS. . . . . . . . . . . . . . . . . . . . . .1
Section 1.1 Defined Terms . . . . . . . . . . . . .1
Section 1.2 Construction. . . . . . . . . . . . . .6
ARTICLE II
THE COMPANY MERGER . . . . . . . . . . . . . . . . . .7
Section 2.1 The Merger. . . . . . . . . . . . . . .7
Section 2.2 Effective Time of the Company Merger. .7
Section 2.3 Articles of Incorporation, Bylaws,
Directors and Officers. . . . . . . . .8
Section 2.4 Effect of Company Merger. . . . . . . .8
Section 2.5 Further Assurances. . . . . . . . . . .8
Section 2.6 Conversion of Acquisition Subsidiary
Common Stock. . . . . . . . . . . . . .8
Section 2.7 Effect of Merger on Company Stock . . .9
Section 2.8 Exchange of Certificates. . . . . . . .9
Section 2.9 Closing of the Company Transfer
Books . . . . . . . . . . . . . . . . 10
Section 2.10 Dividends . . . . . . . . . . . . . . 10
Section 2.11 Stockholders' Approval. . . . . . . . 10
Section 2.12 Adjustments . . . . . . . . . . . . . 11
Section 2.13 Voting Agreements . . . . . . . . . . 11
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY . . . 11
Section 3.1 Organization and Good Standing. . . . 11
Section 3.2 Capital Structure . . . . . . . . . . 12
Section 3.3 Authority . . . . . . . . . . . . . . 13
Section 3.4 Stockholder Approval. . . . . . . . . 13
Section 3.5 No Violations . . . . . . . . . . . . 14
Section 3.6 SEC Documents . . . . . . . . . . . . 14
Section 3.7 Information Supplied. . . . . . . . . 15
Section 3.8 Internal Controls and Records . . . . 15
Section 3.9 Taxes . . . . . . . . . . . . . . . . 15
Section 3.10 Title to Assets . . . . . . . . . . . 16
Section 3.11 Leases. . . . . . . . . . . . . . . . 16
Section 3.12 Intangible Properties . . . . . . . . 17
Section 3.13 Regulatory Filings. . . . . . . . . . 18
Section 3.14 Insurance . . . . . . . . . . . . . . 18
Section 3.15 Compliance with ERISA . . . . . . . . 18
Section 3.16 Environmental Laws. . . . . . . . . . 19
Section 3.17 Labor Matters . . . . . . . . . . . . 20
Section 3.18 Year 2000 Compliance. . . . . . . . . 20
Section 3.19 Legal Proceedings . . . . . . . . . . 20
Section 3.20 Contracts . . . . . . . . . . . . . . 20
Section 3.21 Required Consents . . . . . . . . . . 21
Section 3.22 Broker's Fees . . . . . . . . . . . . 21
Section 3.23 Conduct . . . . . . . . . . . . . . . 21
Section 3.24 Absence of Certain Events . . . . . . 22
Section 3.25 Loans . . . . . . . . . . . . . . . . 22
Section 3.26 Opinion of Financial Advisers . . . . 23
Section 3.27 Accounting Matters. . . . . . . . . . 23
Section 3.28 Beneficial Ownership of Gold Banc
Common Stock. . . . . . . . . . . . . 23
Section 3.29 Undisclosed Liabilities; Adverse
Agreements. . . . . . . . . . . . . . 23
Section 3.30 Disclosure. . . . . . . . . . . . . . 23
Section 3.31 No Dissenter's . . . . . . . . . . . 24
Section 3.32 Deductibility of Severance Payments . 24
Section 3.33 Accruals. . . . . . . . . . . . . . . 24
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF GOLD BANC. . . . . 24
Section 4.1 Corporate . . . . . . . . . . . . . . 25
Section 4.2 Capital Structure . . . . . . . . . . 25
Section 4.3 Authority . . . . . . . . . . . . . . 25
Section 4.4 Stockholder Approval. . . . . . . . . 26
Section 4.5 Status of Gold Banc Common Stock
to be Issued. . . . . . . . . . . . . 27
Section 4.6 No Violation. . . . . . . . . . . . . 27
Section 4.7 SEC Documents . . . . . . . . . . . . 28
Section 4.8 Information Supplied. . . . . . . . . 28
Section 4.9 Internal Controls and Records . . . . 29
Section 4.10 Taxes . . . . . . . . . . . . . . . . 29
Section 4.11 Regulatory Filings. . . . . . . . . . 29
Section 4.12 Compliance with ERISA . . . . . . . . 30
Section 4.13 Environmental Laws. . . . . . . . . . 30
Section 4.14 Year 2000 Compliance. . . . . . . . . 30
Section 4.15 Legal Proceedings . . . . . . . . . . 31
Section 4.16 Required Consents . . . . . . . . . . 31
Section 4.17 Broker's Fees . . . . . . . . . . . . 31
Section 4.18 Conduct . . . . . . . . . . . . . . . 31
Section 4.19 Undisclosed Liabilities;
Adverse Agreements. . . . . . . . . . 31
Section 4.20 Disclosure. . . . . . . . . . . . . . 32
ARTICLE V
COVENANTS OF THE COMPANY . . . . . . . . . . . . . . 32
Section 5.1 Affirmative Covenants of the Company. 32
Section 5.2 Negative Covenants of the Company . . 33
Section 5.3 Inspection. . . . . . . . . . . . . . 35
Section 5.4 Financial Statements and Call Reports 35
Section 5.5 Tax Returns . . . . . . . . . . . . . 35
Section 5.6 Right to Attend Meetings. . . . . . . 36
Section 5.7 Data Processing . . . . . . . . . . . 36
Section 5.8 No Solicitation . . . . . . . . . . . 36
Section 5.9 Regulatory Approvals. . . . . . . . . 37
Section 5.10 Information . . . . . . . . . . . . . 37
Section 5.11 Tax-Free Reorganization Treatment . . 37
Section 5.12 Pooling-of-Interest Accounting
Treatment . . . . . . . . . . . . . . 38
Section 5.13 Cooperation by the Company. . . . . . 38
Section 5.14 Year 2000 Compliance. . . . . . . . . 38
Section 5.15 Proxy Statement and Registration
Statement . . . . . . . . . . . . . . 38
Section 5.16 Confidentiality . . . . . . . . . . . 38
Section 5.17 Employee Benefit Plans. . . . . . . . 39
Section 5.18 Deductibility of Severance Payments . 40
ARTICLE VI
COVENANTS OF GOLD BANC AND ACQUISITION SUBSIDIARY. . 40
Section 6.1 Regulatory Approvals. . . . . . . . . 40
Section 6.2 Information . . . . . . . . . . . . . 40
Section 6.3 Tax-Free Reorganization Treatment . . 40
Section 6.4 Employee Benefit Plans; Prior
Service Credit. . . . . . . . . . . . 40
Section 6.5 Assumption of Company Stock Options . 40
Section 6.6 Confidentiality . . . . . . . . . . . 41
Section 6.7 Pooling-of-Interest Accounting . . . 41
Section 6.8 Cooperation by Gold Banc and
Acquisition Subsidiary. . . . . . . . 41
Section 6.9 Year 2000 Compliance. . . . . . . . . 41
Section 6.10 Indemnification of Directors and
Insurance . . . . . . . . . . . . . . 41
Section 6.11 Employee Bonuses. . . . . . . . . . . 42
ARTICLE VII
CONDITIONS PRECEDENT TO OBLIGATIONSOF THE COMPANY . 42
Section 7.1 Representations, Warranties and
Covenants . . . . . . . . . . . . . . 42
Section 7.2 Regulatory Authority Approval . . . . 42
Section 7.3 Litigation. . . . . . . . . . . . . . 42
Section 7.4 Approval by Stockholders. . . . . . . 42
Section 7.5 Adverse Changes . . . . . . . . . . . 43
Section 7.6 Federal Tax Opinion . . . . . . . . . 43
Section 7.7 Opinion of Counsel. . . . . . . . . . 43
Section 7.8 Market Price of Gold Banc
Common Stock. . . . . . . . . . . . . 43
ARTICLE VIII
CONDITIONS PRECEDENT TO OBLIGATIONS OF GOLD BANC
AND ACQUISITION SUBSIDIARY . . . . . . . . . . . . . 43
Section 8.1 Representations, Warranties and
Covenants . . . . . . . . . . . . . . 43
Section 8.2 Adverse Changes . . . . . . . . . . . 43
Section 8.3 Regulatory Authority Approval . . . . 44
Section 8.4 Litigation. . . . . . . . . . . . . . 44
Section 8.5 Financial Measures. . . . . . . . . . 44
Section 8.6 Approval by Stockholders. . . . . . . 44
Section 8.7 Tax Representations . . . . . . . . . 44
Section 8.8 Affiliate Agreements. . . . . . . . . 44
Section 8.9 Federal Tax Opinion . . . . . . . . . 45
Section 8.10 Opinion of Counsel. . . . . . . . . . 45
Section 8.11 Qualification for Pooling-of-Interest
Treatment . . . . . . . . . . . . . . 45
Section 8.12 Regarding the Significant
Stockholders . . . . . . . . . . . . 45
Section 8.13 Company Options.. . . . . . . . . . . 45
Section 8.14 Deductibility of Severance Payments . 46
ARTICLE IX
NON-SURVIVAL OF REPRESENTATIONS AND WARRANTIES . . . 46
Section 9.1 No Survival of Representations
and Warranties . . . . . . . . . . . 46
ARTICLE X
SECURITIES LAWS MATTERS. . . . . . . . . . . . . . . 46
Section 10.1 Registration Statement and
Proxy Statement. . . . . . . . . .. . 46
Section 10.2 State Securities Laws . . . . . . . . 47
Section 10.3 Publication of Combined
Financial Results . . . . . . . . . . 47
Section 10.4 Affiliates. . . . . . . . . . . . . . 47
Section 10.5 Indemnification by Gold Banc. . . . . 47
Section 10.6 Indemnification by the Company. . . . 48
ARTICLE XI
TERMINATION. . . . . . . . . . . . . . . . . . . . . 48
Section 11.1 Basis for Termination . . . . . . . . 48
Section 11.2 Effect of Termination . . . . . . . . 49
Section 11.3 Termination Fee . . . . . . . . . . . 49
Section 11.4 Specific Performance. . . . . . . . . 49
ARTICLE XII
MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . 50
Section 12.1 Amendment . . . . . . . . . . . . . . 50
Section 12.2 Extension: Waiver . . . . . . . . . . 50
Section 12.3 Expenses. . . . . . . . . . . . . . . 50
Section 12.4 Parties in Interest . . . . . . . . . 50
Section 12.5 Entire Agreement; Amendments; Waiver. 51
Section 12.6 Notices . . . . . . . . . . . . . . . 51
Section 12.7 Law Governing . . . . . . . . . . . . 52
Signature Pages. . . . . . . . . . . . . . . . . . . . . . . . S-1
LIST OF SCHEDULES
Schedule 3.2(a) Options
Schedule 3.9 Tax Matters
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 Properties
Schedule 3.15 Employee Benefit Plans
Schedule 3.19 Legal Proceedings
Schedule 3.20 Contracts
Schedule 3.21 Required Consents of Company
Schedule 3.22 Broker's Fees
Schedule 3.24 Absence of Certain Events
Schedule 3.25(b) Affiliate Loans
Schedule 4.15 Gold Banc Actions Pending
Schedule 4.16 Required Consents of Gold Banc
LIST OF EXHIBITS
Exhibit A Form of Voting Agreement
Exhibit B Form of Affiliate Letter
Exhibit C Form of Hall Non-Compete Agreement
Exhibit D Form of Xxxxxxxx Non-Compete Agreement
Exhibit E Form of Xxxxx Non-Compete Agreement
