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EXHIBIT 3.3
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER dated as of September 14th , 1999, among
BANCO SANTANDER PUERTO RICO, a bank organized under the laws of the Commonwealth
of Puerto Rico (the "Commonwealth") (the "Bank"), SANTANDER INTERIM BANK, a bank
organized under the laws of the Commonwealth for the sole purpose of
consummating the transactions provided for herein (the "Interim Bank") and
SANTANDER BANCORP, a corporation organized under the laws of the Commonwealth to
serve as the bank holding company (the "Holding").
WHEREAS, the Bank is a bank organized under the Banking Law of the
Commonwealth, Act No. 55 of May 12, 1933, as amended (the "Banking Law"), with
its principal office and place of business at 000 Xxxxx xx Xxxx Xxxxxx, Xxx
Xxxx, Xxxxxx Xxxx, with an authorized capital of 200,000,000 shares of common
stock, par value $2.50 per share and 10,000,000 shares of preferred stock, par
value $25.00 per share;
WHEREAS, the Interim Bank is a bank organized under the Banking Law,
with its principal office at the same address as that of Bank, with an
authorized capital of 1,000,000 shares of common stock, par value $1.00 per
share, with all of the shares of capital stock of the Interim Bank to be issued
prior to the consummation of the transactions described herein to be held by the
Holding; and
WHEREAS, the Holding is a general business corporation organized under
the laws of the Commonwealth, with its principal office at the same address as
that of Bank, and having an authorized capital of 200,000,000 shares of common
stock, par value $2.50 per share and 10,000,000 shares of Preferred Stock, par
value $25.00 per share, of which 4,000 shares of common stock have been issued
to Administracion de Bancos Latinoamericanos, S.L. and are currently
outstanding; and
WHEREAS, the Bank, the Interim Bank and the Holding desire to establish
a bank holding company structure and in order to implement that desire, the
Boards of Directors of the Bank, the Interim Bank and the Holding have each
respectively agreed unanimously to a merger of the Interim Bank into the Bank
(the "Merger") and the issuance of shares of Holding's common stock as
consideration for value received by Holding from the Merger;
NOW, THEREFORE, in consideration of the premises, the Bank, the Interim
Bank and the Holding hereby make this Agreement and prescribe the terms and
conditions of the Merger and the mode of carrying it into effect, including the
rights and obligations of Holding in connection therewith, as follows:
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ARTICLE I
DEFINITION
Section 1.01 Definitions. The following terms, as used herein, have the
following respective meanings:
"Ablasa" means Administracion de Bancos Latinoamericanos, S.L. a
subsidiary of Banco Santander Central Hispano, S.A.
"Bank" means Banco Santander Puerto Rico prior to the Effective Date.
"Bank Shares" means the shares of common stock of the Bank, par value
$2.50 per share.
"Commissioner" means the Commissioner of Financial Institutions of the
Commonwealth.
"Continuing Bank" means Banco Santander Puerto Rico on and after the
Effective Date.
"Dissenting Shares" shall have the meaning set forth in Section 6.01.
"Effective Date" shall have the meaning set forth in Section 4.02.
"Exercise" shall have the meaning set forth in Section 2.03.
"FDIC" means the Federal Deposit Insurance Corporation.
"Federal Reserve Board" means the Board of Governors of the Federal
Reserve System.
"Holding" means Santander BanCorp, a general business corporation
organized under the laws of the Commonwealth and a wholly owned
subsidiary of Ablasa prior to the Effective Date.
"Holding Shares" means the shares of common stock of the Holding, par
value $2.50 per share.
"Interim Bank" means Santander Interim Bank, a bank organized under the
Banking Law for the sole purpose of consummating the transactions
provided for herein.
"Preferred Shares" means the shares of the Bank's 7% Noncumulative
Perpetual Monthly Income Preferred Stock, Series A.
"Proxy/Offering Circular" shall have the meaning set forth in Section
3.04(a).
"Regulatory Approvals" shall have the meaning set forth in Section
3.03.
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ARTICLE III
THE MERGER
Section 2.01 Merger. On the Effective Date, the Interim Bank shall be
merged into the Bank and the Bank (hereinafter referred to as the "Bank" prior
to the Effective Date and as the "Continuing Bank" on or after the Effective
Date) shall receive into itself the Interim Bank pursuant to the provisions of
and with the effects provided in Section 15 of the Banking Law.
Section 2.02 Conversion. Upon the Effective Date:
(a) Each Bank Share issued and outstanding immediately
prior to the Effective Date shall, without any further action on the
part of the Bank, the Interim Bank, the Holding, or any other person,
constitute and be converted into and there shall be allocated to the
record holder thereof a Holding Share.
(i) Such conversion and allocation shall not in
any way preclude or prevent any such holder from exercising
his or her statutory right to dissent from the Merger and to
receive from the Continuing Bank payment of the value of his
or her Bank Shares and such other rights and benefits as are
provided by law.
(ii) On the Effective Date, each outstanding
certificate which theretofore had represented Bank Shares,
shall henceforward be deemed for all corporate purposes as
evidence of the ownership of an equal number of Holding Shares
into which the Bank Shares have been so converted.
(b) Each share of the Holding issued prior to the
Effective Date shall be redeemed by the Holding at its par value on the
Effective Date pursuant to an agreement by and between the Holding and
Ablasa to that effect.
(c) Each share of common stock of the Interim Bank issued
on the Effective Date shall without any further action on the part of
the Bank, the Interim Bank, the Holding, or any other person constitute
and be converted into the right to receive $1.00 from the Continuing
Bank and such sums shall be delivered to the record holder thereof.
(d) On the Effective Date, the Continuing Bank shall
issue to the Holding the same number of shares of its common stock as
are issued and outstanding as of the Effective Date.
Section 2.03 Certificate After the Effective Date.
(a) Upon the Effective Date, each outstanding certificate
that prior to the Effective Date had represented Bank Shares shall
henceforward be deemed for all corporate purposes as evidence of the
ownership of Holding Shares.
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(b) At any time after the Effective Date, any holder of
one or more of the certificates that prior to the Effective Date had
represented Bank Shares may surrender such certificate or certificates
in proper form to the Holding or to its transfer agent and receive in
exchange therefor a certificate or certificates (as the holder
requests) bearing the name and representing an identical number of
Holding Shares.
Section 2.04 Stock Options.
(a) The Bank's 1999 Stock Option Plan shall be deemed
amended as of the Effective Date in order to make reference to the
issuance of Holding Shares instead of Bank Shares.
(b) At the Effective Date, each outstanding option to
purchase shares of the Bank under the Bank's 1999 Stock Option Plan, if
any, will be assumed by the Holding. Each such option will be
exercisable in accordance with its existing terms for the same number
of shares of the Holding as the number of shares of the Bank subject to
such option.
Section 2.05 Effects of the Merger. Upon the Effective Date:
(a) The name of the Continuing Bank shall be Banco
Santander Puerto Rico. The main office, principal place of business,
officers and other personnel of the Continuing Bank shall be the same
as the main office, principal place of business, officers and other
personnel of the Bank immediately prior to the Effective Date;
(b) The articles of incorporation of the Continuing Bank
shall be the articles of incorporation of the Bank, and the by-laws of
the Continuing Bank shall be the by-laws of the Bank;
(c) The Bank and the Interim Bank shall be considered as
one sole corporate entity under the name of the Continuing Bank, and
the Continuing Bank shall thenceforth enjoy all the rights, privileges
and franchises and shall be subject to all the restrictions,
obligations and duties of the Bank and the Interim Bank, except for the
alterations provided herein;
(d) Each and all the property, shares, rights,
franchises, powers and privileges of the Bank and the Interim Bank
shall become the property of the Continuing Bank, and the Continuing
Bank shall have, as regards such property, shares, rights, franchises,
powers and privileges, the same rights as the Interim Bank and the Bank
each possessed;
(e) The Continuing Bank shall assume each and every
obligation of the Bank and the Interim Bank and shall have all the
obligations and shall be liable for all debts and the fulfillment of
all contracts and obligations of the Bank and the Interim Bank, just as
they were prior to the Effective Date. Any reference to the Bank or the
Interim Bank in any contract, will or document, whether executed or
taking effect before or after the Merger, shall
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be considered a reference to the Continuing Bank if not inconsistent
with the other provision of the contract, will or document. The
stockholders of the Bank and the Interim Bank shall continue to be
subject to the same obligations, claims and demands as existed against
them, if any, on or before the Effective Date;
(f) All suits, actions or other proceedings pending in
any court on the Effective Date shall continue to their termination
just as if no merger had taken place; provided, however, that the
Continuing Bank may be substituted in place of either the Bank or the
Interim Bank by order of the court taking cognizance of the
proceedings;
(g) The directors of the Continuing Bank shall consist of
the directors of the Bank on and as of the Effective Date (the names
and addresses of the current directors of the Bank as of the date
hereof are listed in Appendix I attached hereto), which directors shall
hold office in the Continuing Bank, unless sooner removed or
disqualified, until their successors are elected at the next annual
meeting of the stockholders of the Continuing Bank or are appointed in
accordance with the by-laws of the Continuing Bank and have qualified;
(h) The directors of the Holding shall consist of the
directors of the Bank on and as of the Effective Date (the names and
addresses of the current directors of the Bank as of the date hereof
are listed in Appendix I attached hereto), which directors shall hold
office in the Holding, unless sooner removed or disqualified, until
their successors are elected at the next annual meeting of the
stockholders of the Holding or are appointed in accordance with the
by-laws of the Holding and have qualified;
(i) All deposit accounts of the Bank shall be and will
become deposits in the Continuing Bank without change in their
respective terms, interest rates, maturities, minimum required balances
or withdrawal rates. After the Effective Date, the Continuing Bank will
continue to issue deposit accounts on the same basis as the Bank
immediately prior to the Effective Date; and
(j) All Preferred Shares shall continue to be issued and
outstanding and be held by holders of said shares prior to the
Effective Date. The Merger shall have no effect in the ownership of the
Preferred Shares nor in the amount of Preferred Shares issued and
outstanding.
ARTICLE III
UNDERTAKINGS
Section 3.01. Bank Stockholder Approval. The Bank undertakes to submit
this Agreement for consideration to its shareholders at a meeting called for
this purpose pursuant to Section 15(b) of the Banking Law, or in any other
manner permitted by law. Without limiting the preceding sentence, the Bank
agrees (unless such action is not required by law):
(a) To send to the post-office address of each of the
holders of issued and
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outstanding Bank Shares written notice of such meeting not less than
thirty days prior to the date fixed for the meeting. The notice shall
specify the place and purpose of the meeting at which this Agreement
will be considered;
(b) To hold a vote of the shareholders at said meeting,
in which each Bank Shares shall entitle each holder thereof to one vote
to be cast by the stockholder himself or by proxy;
(c) To cause its secretary to certify under seal of the
Bank that (i) this Agreement has been approved by the vote of the
directors of the Bank, and (ii) this Agreement has been approved by the
votes of at least two-thirds of the Bank Shares; and
(d) To submit the Agreement as certified pursuant to
subsection (c) of this Section 3.01 to the Commissioner for his
approval or disapproval.
Section 3.02. Interim Bank Stockholder Approval. The Holding will vote
all of its shares of common stock of the Interim Bank in favor of the approval
of this Agreement.
Section 3.03 Regulatory Approvals. Each of the Holding, the Bank and
the Interim Bank shall (i) proceed expeditiously and cooperate fully in
determining which filings are required to be made prior to the Effective Date
with, and which consents, approvals, permits or authorizations are required to
be obtained prior to the Effective Date from governmental or regulatory
authorities of the Commonwealth and the United States (collectively, the
"Regulatory Approvals") in connection with the execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby; and (ii)
timely makes all such filings and timely seek all Regulatory Approvals; and take
all other action and do all things necessary, prior or appropriate to consummate
and make effective all transactions contemplated by this Agreement as soon as
possible.
Section 3.04 Securities Matters.
(a) The Bank undertakes to prepare and file promptly a
proxy/offering circular (the "Proxy/Offering Circular") which complies
with the requirements of the Securities Exchange Act of 1934 and the
rules and regulations promulgated thereunder by the FDIC, and which
complies will all applicable federal, state and Puerto Rico law
requirements for the purpose of submitting this Agreement to its
shareholders for approval, ratification and confirmation; and
(b) The Holding and the Bank shall each provide promptly
to the other such information concerning its business and financial
condition and affairs as may be required or appropriate for inclusion
in the Proxy/Offering Circular and shall cause its counsel and auditors
to cooperate in the preparation of the Proxy/Offering Circular, and the
Bank shall distribute the Proxy/Offering Circular to the Bank's
shareholders in accordance with applicable federal and state law
requirements.
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Section 3.05 Other Undertakings. If at any time (whether before or
after the Effective Date) the Bank or the Continuing Bank considers that any
further assignments, conveyances or assurances in law are necessary or desirable
to vest, perfect or confirm of record in the Continuing Bank the title to any
property or rights of the Bank or the Interim Bank, or otherwise to carry out
the provisions hereof, the Bank and the Interim Bank hereby undertake through
their proper officers and directors to execute and deliver immediately any and
all proper deeds, assignments and assurances on law, and to do all things
necessary or proper to vest, perfect or confirm title to such property or rights
in the Continuing Bank and otherwise to carry out the provisions hereof.
ARTICLE IV
CONDITIONS PRECEDENT
Section 4.01 Conditions Precedent to the Merger. The consummation of
the Merger contemplated by this Agreement is subject to the satisfaction of the
following conditions:
(a) The votes of at least two thirds (2/3) of the issued
and outstanding Bank Shares shall have been cast (whether cast by
holders of such shares in person or by proxy) in favor of this
Agreement at a meeting of the Bank's stockholders called pursuant to
Section 3.01;
(b) All Regulatory Approvals (or waiver or exemption
therefrom) and satisfaction of all other requirements prescribed by law
which are necessary to the consummation of the transactions
contemplated by this Agreement shall have been obtained and all
statutory waiting periods shall have expired, without the imposition of
any condition or requirements that would materially and adversely
affect the operations or business prospects of the Holding or the
Continuing Bank following the Effective Date so as to render
inadvisable the consummation of such transaction.
(c) The Bank shall have received a ruling or rulings from
the appropriate tax authorities and/or an opinion letter from Fiddler
Xxxxxxxx & Xxxxxxxxx, LLP, counsel to the Bank, satisfactory to the
Bank in form and substance, with respect to the Puerto Rico and United
States income tax consequences of the Merger;
(d) The Holding Shares shall have been approved for
listing by the New York Stock Exchange.
Section 4.02 Effective Date. The Merger provided for herein shall
become effective on the date (the "Effective Date") as soon as practicable after
each condition precedent listed in Section 4.01 shall have been satisfied. The
Merger shall become effective at the time this Agreement is properly perfected
and filed in accordance with the Banking Law.
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ARTICLE V
TERMINATION AND DEFERRAL
Section 5.01 Termination of the Merger. Prior to the Effective Date,
this Agreement may be terminated at any time by written notice by either the
Bank or the Interim Bank to the other that its Board of Directors is of the
opinion that:
(a) The number of Bank Shares that voted against approval
of this Agreement, the number of Bank Shares with respect to which the
holders thereof recorded their opposition to the Merger or the number
with respect to which demand for payment of shares has been made is
such that the consummation of the Merger is, in the sole opinion of
such Board of Directors, inadvisable,
(b) Any action, suit, proceeding, or claim is commenced
or threatened or any claim is made that could make consummation of the
Merger, in the sole opinion of such Board of Directors, inadvisable;
(c) It is likely that a Regulatory Approval, in the sole
opinion of such Board of Directors, will not be obtained, or if
obtained, will contain or impose any condition or requirement that
would materially and adversely affect the operations or business
prospects of the Holding or the Continuing Bank following the Effective
Date so as to render inadvisable the consummated of the Merger; or
(d) Any other reason exists that makes consummation of
the Merger in the sole opinion of such Board of Directors, inadvisable.
Upon such determination, this Agreement shall be void and there shall
be no liability hereunder or on account of such termination on the part of the
Bank, the Interim Bank, Holding, or the directors, officers, employees, agents
or stockholders or any of them, except that in such event the Bank will pay fees
and expenses incurred by itself, the Interim Bank and Holding in connection with
the proposed reorganization.
Section 5.02 Deferral of Effective Date. Consummation of the Merger
herein provided may be deferred by the Board of Directors of the Bank for a
reasonable period of time if the Board of Directors determines, in its sole
discretion, that such deferral would be in the best interest of the Bank and the
shareholders of the Bank.
ARTICLE VI
APPRAISAL RIGHTS
Section 6.01 Dissenters' Rights. Any stockholder of the Bank who
complies with all applicable provisions of law, including without limitation
Section 15(i) of the Banking Law, shall be entitled to receive the value of the
Bank Shares held by such stockholder as provided by Section
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15(i) of the Banking Law, provided that:
(a) Any Bank Shares held by a holder who has demanded
appraisal of this Bank Shares and as of the Effective Date has neither
effectively withdrawn not lost his right to such appraisal (the
Dissenting Shares") shall not be converted in the manner set forth in
Section 2.02, but the holder thereof shall only be entitled to such
rights as are granted by the Banking Law.
(b) Notwithstanding the provisions of paragraph (a) of
this Section 6.01, if any holder of Dissenting Shares shall effectively
withdraw or lose (through failure to perfect or otherwise) his right to
appraisal, then as of the Effective Date or the occurrence of such
event, whichever later occurs, such Dissenting Shares shall
automatically be converted as provided in Section 2.02.
ARTICLE VII
MISCELLANEOUS
Section 7.01 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth.
Section 7.02 Amendment. This Agreement and the Exhibits hereto may be
amended by the parties hereto, by action taken by or on behalf of their
respective Board of Directors at any time before or after approval by the
stockholder of the parties; provided, however that after such approval, no
amendment, modification or waiver shall affect the consideration to be received
by any party or their respective shareholders. Any such amendment, modification
or waiver must be by an instrument in writing and signed on behalf of each of
the partes.
IN WITNESS WHEREOF, the Bank, the Interim Bank and the Holding have
caused this Agreement to be executed in multiple copies, by their duly
authorized officers, and have caused their corporate seals to be hereto affixed,
as of the date first above written.
BANCO SANTANDER PUERTO RICO
By: /s/ Xxxxxx Xxxxxxxxxxxxx
----------------------------------------
Name: Xxxxxx Xxxxxxxxxxxxx
Title: President and CEO
By: /s/ Xxxx Xxxxxxxx de Castejon
----------------------------------------
Name: Xxxx Xxxxxxxx xx Xxxxxxxx
Title: Executive Vice President and CFO
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SANTANDER INTERIM BANK
By: /s/ Xxxxx Xxxxxx Xxxxxxx
----------------------------------------
Name: Xxxxx Xxxxxx Xxxxxxx
Title: President
By: /s/ Xxxxx Xxxxxx Xxxxxx
----------------------------------------
Name: Xxxxx Xxxxxx Xxxxxx
Title: Vice President & Treasurer
SANTANDER BANCORP
By: /s/ Xxxxx Xxxxxx Xxxxxxx
----------------------------------------
Name: Xxxxx Xxxxxx Xxxxxxx
Title: President
By: /s/ Xxxxx Xxxxxx Xxxxxx
----------------------------------------
Name: Xxxxx Xxxxxx Xxxxxx
Title: Vice President & Treasurer
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APPENDIX I
DIRECTORS OF THE CONTINUING BANK AFTER THE EFFECTIVE DATE
Name: Position: Address:
---------------------------------------------------------------------------------------------------------
Xxxxxx Xxxxxxxxxxxxx Director and Chairman San Xxxx, Puerto Rico
Xxxx Xxxxxxxx de Castejon Director and Vice Chairman San Xxxx, Puerto Rico
Xxxxxx Xxxxxx Xxxxxxx, Esq. Director San Xxxx, Puerto Rico
Xxxxx Xxxxxx Xxxxxxx Director San Xxxx, Puerto Rico
Carmen Xxx Xxxxxxxx Director San Xxxx, Puerto Rico
Gonzalo de las Xxxxx Director New York, New York
Xxxxx Xxxxx Director San Xxxx, Puerto Rico
Xxxxxxx Xxxxx Xxxxx Director San Xxxx, Puerto Rico
Xxxxxxx X. Xxxxxxxx Director Guaynabo, Puerto Rico
DIRECTORS OF HOLDING AFTER THE EFFECTIVE DATE
Xxxxxx Xxxxxxxxxxxxx Director and Chairman San Xxxx, Puerto Rico
Xxxx Xxxxxxxx de Castejon Director and Vice Chairman San Xxxx, Puerto Rico
Xxxxxx Xxxxxx Xxxxxxx, Esq. Director San Xxxx, Puerto Rico
Xxxxx Xxxxxx Xxxxxxx Director San Xxxx, Puerto Rico
Carmen Xxx Xxxxxxxx Director San Xxxx, Puerto Rico
Gonzalo de las Xxxxx Director New York, New York
Xxxxx Xxxxx Director San Xxxx, Puerto Rico
Xxxxxxx Xxxxx Xxxxx Director San Xxxx, Puerto Rico
Xxxxxxx X. Xxxxxxxx Director Guaynabo, Puerto Rico
