EXHIBIT 2
AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger (hereinafter the "Merger
Agreement") is made and entered into as of the date last below
written, by and among NASB FINANCIAL, INC., a Missouri general
business corporation (hereinafter "Holding Company"), NORTH AMERICAN
SAVINGS BANK, F.S.B., a federally chartered stock savings bank
(hereinafter "NASB") and NASB INTERIM SAVINGS BANK, F.S.B., a
federally chartered stock savings bank formed solely to facilitate
this transaction (hereinafter "Interim Association"), all of which are
sometimes hereinafter collectively referred to as the "Constituent
Corporations."
WITNESSETH:
WHEREAS, NASB has for many years operated as a financial
institution with its principal office in
Grandview, Missouri; and
WHEREAS, Interim Association is a recently formed federally
chartered stock savings bank with its principal office in Grandview,
Missouri; and
WHEREAS, the merger of NASB into Interim Association (both of
which are hereinafter collectively referred to as the "Merging Savings
Banks") will provide a means whereby all of the shares of the
surviving savings bank (hereinafter sometimes referred to as the
"Surviving Savings Bank") would be owned by Holding Company and
whereby the shareholders of NASB would receive shares of Holding
Company in exchange for their shares of NASB, thereby allowing the
resulting organization to avail itself of the advantages of holding
company/wholly-owned operating subsidiary status, as well as other
advantages; and
WHEREAS, the Boards of Directors of each of the Constituent
Corporations, each by a unanimous vote of the entire Board, have
determined that the proposed merger of NASB into Interim Association
in such a manner whereby the Surviving Savings Bank would become a
wholly-owned subsidiary of Holding Company would be in the best
interests of their respective Constituent Corporation and its
shareholders, and have, therefore, approved this Agreement and
authorized its execution.
NOW, THEREFORE, for and in consideration of the premises and of
the mutual covenants and promises herein contained, it is hereby
agreed by and among the Constituent Corporations as follows:
PRESENT STATUS OF CONSTITUENT CORPORATION
Each of the Constituent Corporations represents to the others
that the information set forth below currently reflects the current
status of its capital structure and of the other matters represented.
NASB was formed in 1927 as a Missouri Chartered Mutual Savings
and Loan Association head-quartered in the Kansas City, and became a
member of the Federal Home Loan Bank of Des Moines in 1940. In 1985,
NASB converted from a Missouri Chartered Mutual Association to a
Missouri Chartered Stock Association; and, in 1992, was converted from
a state-chartered capital stock savings and loan association to a
federally-chartered stock savings bank. NASB's present authorized
capital consists of 12,500,000 shares of common stock, $1.00 par value
per share, and 7,500,000 shares of serial preferred stock, $1.00 par
value per share, of which, as of December 31, 1997, 2,239,672 shares
of common stock were issued and outstanding and zero shares of serial
preferred stock were issued and outstanding, making the total
outstanding capital stock on NASB's books and records as of such date
$2,239,672.00. As of December 31, 1997, NASB had additional paid-in
capital of $9,314,608 and retained earnings of approximately
$50,750,000.
Interim Association is being organized as an interim federal
savings bank pursuant to the banking laws of the United States solely
for the purposes of facilitating the transactions hereunder.
Holding Company was incorporated pursuant to the general
corporation laws of the State of Missouri. Its presently authorized
capital consists of 3,000,000 shares of common stock, $1.00 par value
per share. Holding Company is validly existing and in good standing
under the laws of the State of Missouri. Holding Company has issued
50,000 shares of common stock to NASB as initial capital.
ACTIONS AFTER EXECUTION OF MERGER AGREEMENT
As promptly as practicable following the execution of this Merger
Agreement, the Constituent Corporations shall commence to take such
actions as are reasonable and necessary to fulfill the undertakings,
conditions and objectives of this Agreement. Each agrees to continue
to diligently pursue these objectives until such time as the
conditions precedent are fulfilled and the transactions contemplated
hereunder are consummated, or until such time as it is reasonably
determined that any of the conditions precedent set forth herein
cannot be fulfilled and will not be waived by the party entitled to
the benefit thereof, or this Merger Agreement is otherwise terminated
as provided herein.
EFFECTIVE TIME OF MERGER
At the Effective Time of the merger of NASB and Interim
Association, the separate existence of NASB shall cease and NASB shall
be merged with and into Interim Association, which shall be deemed the
"receiving savings bank" in the merger and which is otherwise referred
to herein as the "Surviving Savings Bank."
The merger of NASB and Interim Association shall be deemed
effective when there are filed with the Office of Thrift Supervision,
and with the Secretary of each of NASB and Interim Association, those
documents and certificates required pursuant to the laws of the United
States. The time when this merger is deemed effective shall be the
"Effective Time" of the merger for purposes of this Merger Agreement.
EFFECT OF MERGER
As of the Effective Time, the Surviving Savings Bank shall, by
operation of law and without other transfer, succeed to all and
singular of the assets, capital, rights, privileges and franchises,
and the rights, title and interests in and to all property of any kind
whatsoever, whether real or personal, tangible or intangible, and
things in action, and every right privilege, interest or asset of
conceivable value or benefit then existing to which either of the
Merging Savings Banks shall be entitled at law or in equity, and all
of the foregoing shall be fully and finally and without any right of
reversion transferred to and vested in the Surviving Savings Bank
without further act or deed. The Surviving Savings Bank shall have
and hold the same in its own corporate right as fully as the same was
possessed and held by either of the Merging Savings Banks from which
the rights were transferred by operation of the applicable provisions
of the laws of the United States.
The rights, obligations and relations of either of the Merging
Savings Banks in respect to any person, creditor, or depositor shall
remain unimpaired; and the Surviving Savings Bank shall, as of the
Effective Time, succeed to all such relations, obligations, powers,
and liabilities, and shall execute and perform all duties in relation
thereof in the same manner as though it had itself assumed or been
clothed with the relation, or had itself incurred the obligation or
liability; and the liabilities and obligations to creditors of any of
the Merging Savings Banks shall not be impaired by the merger; nor
shall any obligation or liability of any stockholder of any of the
Constituent Corporations be affected by the merger, but their
obligations and liabilities shall continue as fully, and to the same
extent, as existed before the merger.
The Surviving Savings Bank shall be considered the same business
and corporate entity us both of NASB and Interim Association. Any
reference to either NASB or Interim Association in any writing,
whether executed or taking effect before or after the Effective Time,
shall be deemed a reference to the Surviving Savings Bank if not
inconsistent with the other provisions of such writing.
THE SURVIVING SAVINGS BANK
The name of the Surviving Savings Bank shall be "North American
Savings Bank, F.S.B."
The charter of the Surviving Savings Bank shall be the same as
the charter of NASB as of the Effective Time unless and until amended
by proper action of the stockholders of the Surviving Savings Bank.
The main office of the Surviving Savings Bank shall be located at
00000 Xxxxx 00 Xxxxxxx, Xxxxxxxxx, Xxxxxxxx 00000.
The by-laws of the Surviving Savings Bank shall be the same as
the by-laws of NASB as of the Effective
Time unless and until altered and amended by proper action of the
Surviving Savings Bank.
The officers and directors of the Surviving Savings Bank after
the Effective Time shall be the same as the officers and directors of
NASB immediately prior to the Effective Time.
CONVERSION AND EXCHANGE OF NASB SECURITIES AND HOLDING COMPANY
SECURITIES
The manner in which the merger hereunder shall be effected with
respect to the shareholders of NASB shall be as follows:
All of the shares of the $1.00 par value common stock of NASB
outstanding immediately prior to the Effective Time, shall be deemed
canceled as of the Effective Time, and the holders of all such shares
shall have no further rights to participate in any manner as a
shareholder of the Surviving Savings Bank, including specifically, no
right to participate in any dividend payments made by the Surviving
Savings Bank after the Effective Time.
Each holder of record of the $1.00 par value common stock of NASB
immediately prior to the Effective Time shall be entitled to receive
one share of $1.00 par value common stock of Holding Company for each
share of common stock of NASB held by such holder of record, with the
specific exception of those NASB shareholders who elect to exercise
their appraisal rights in lieu of the receipt of Holding Company
shares. Issuance of the Holding Company common stock due each such
former NASB shareholder shall be made by Holding Company upon receipt
of any and all certificates, duly endorsed, evidencing the shares of $
1.00 par value common stock of NASB that were canceled as of the
Effective Time as aforesaid.
Each holder of an option to purchase shares of NASB common stock
shall be entitled to receive an option to purchase an equal number of
common shares of Holding Company, and the option to purchase NASB
common stock shall be deemed canceled.
The shares of Holding Company common stock held by NASB
immediately prior to the Effective Time shall be deemed canceled as of
the Effective Time.
Any amounts that are finally determined to be due to NASB
shareholders pursuant to statutory appraisal rights effectively
exercised by them shall be paid by Holding Company.
In the event that any appraisal rights proceedings are not
prosecuted to a conclusion, or are dismissed for any other reason--all
without payment or any other action required to be taken by any of the
Constituent Corporations--then, and in that event, the NASB
shareholder initially exercising appraisal rights shall be entitled to
receive one share of $1.00 par value common stock of Holding Company
for each outstanding share of $ 1.00 par value common stock of NASB
held of record by such shareholder as of the Effective Time, subject,
however, to the provisions of the section hereof entitled "Conversion
and Exchange of NASB Shares" with respect to payment of the amount
due.
CONVERSION AND EXCHANGE OF INTERIM ASSOCIATION SHARES
The manner in which the merger hereunder shall be effected with
respect to the shareholders of Interim Association shall be as
follows:
All of the shares of $ 1.00 par value common stock of
Interim Bank held by the Holding Company as of the Effective Time
shall be deemed canceled.
The Holding Company shall receive 2,243,273 shares of $1.00
par value common stock of Surviving Savings Bank as of the
Effective Time.
CAPITAL OF SURVIVING SAVINGS BANK
At the Effective Time, the capital, paid in capital and retained
earnings of the Surviving Savings Bank shall be equal to the capital,
paid-in capital and retained earnings of NASB immediately prior to the
Effective Time.
ACCOUNTING MATTERS
The assets and liabilities of the Merging Savings Banks as of the
Effective Time shall be taken up on the books of the Surviving Savings
Bank at the amounts at which they shall be carried at that time on the
books of the respective Merging Savings Banks with any appropriate
adjustments as may be paid in accordance with generally accepted
accounting principles.
The undivided profits of the Surviving Savings Bank after the
merger shall be available to be used for any legal purpose for which
undivided profits may ordinarily be used.
LIABILITY FOR CASH PAYMENTS
The Holding Company shall assume the liability of the Surviving
Savings Bank to pay cash to shareholders who shall have duly elected
to exercise their statutory appraisal rights. Any cash required to be
paid pursuant to this Agreement may be paid by delivering to the
person entitled to such payment a check of the Holding Company or
other "next-day" funds, and no interest shall be payable on any cash
required to be paid pursuant hereto, unless otherwise required by law.
CONDITIONS PRECEDENT
The fulfillment of all of the conditions set forth below (or if
modified, then the fulfillment as modified) or the waiver thereof (in
the manner provided in the section hereof entitled "Waivers,
Modifications") shall be required before any of the parties to this
Merger Agreement shall be bound to consummate the transactions
described herein.
(a) The approval of this Merger Agreement and the transactions
hereunder shall have been certified by the Office of Thrift
Supervision, and the Merging Savings Banks shall have received the
requisite approvals from their respective shareholders.
(b) The Constituent Corporations shall have received an opinion
from tax counsel or a certified public accountant, in form and
substance satisfactory to
the Constituent Corporations and their Counsel, with respect to the
tax consequences of the transactions contemplated by this Merger
Agreement.
(c) Any and all registrations, qualifications, permits, and/or
licenses required under state and federal securities laws (to the
extent applicable) in connection with the issuance of securities of
the Surviving Savings Bank and Holding Company (if any) shall have
been duly obtained.
(d) Any and all other actions, consents, or approvals,
governmental or otherwise, which in the opinion of Counsel for the
Holding Company are necessary in order to complete the transactions
contemplated by this Merger Agreement (including, without limitation,
those things necessary to permit or enable the Surviving Savings Bank
upon or after the merger to conduct any part or all of its business
and activities in the manner in which such activities and business
have been conducted by NASB up until the time of the merger) shall
have been duly obtained.
(e) No material change in the corporate status, business,
operations, or financial conditions of any of the Constituent
Corporations shall have occurred (other than changes in the ordinary
course of business, and other than losses covered by insurance) which
change is materially adverse to the transactions contemplated herein,
taken as a whole; and no event or condition of any character shall
have occurred or arisen since the date of execution hereof which shall
materially and adversely affect the corporate status, businesses,
operations or financial conditions of the Constituent Corporations,
taken as a whole.
(f) None of the Boards of Directors of NASB, Interim Association
or Holding Company has determined that in its opinion it is unwise to
proceed with the transactions contemplated hereby by virtue of. (a)
the number of shares of capital stock of NASB not voted in favor of or
voted against the merger, or in respect of which written notice is
given purporting to dissent from the merger, or (b) the institution,
or threat of institution, of any action, suit, proceeding, or claim
relating to the proposed merger transaction; or (c) any other material
reason based upon an informed analysis of the facts and circumstances
at hand.
WAIVERS, MODIFICATIONS
Any of the terms or conditions of this Agreement, unless
specifically provided otherwise herein, may be modified or waived, at
any time before the Effective Time, by the party which is, or the
shareholders of which are, entitled to the benefit of such term or
condition upon the authority of the Board of Directors of such party,
provided that any such modification or waiver shall not, in the
judgment of the Board of Directors any other affected party,
substantially affect in a material or adverse way the benefits of such
party or its shareholders intended under this Merger Agreement.
TERMINATION
This Agreement and the transactions contemplated herein may be
terminated prior to the Effective Time in any of the following
manners:
By mutual consent of the Boards of Directors of all of the
Constituent Corporations.
By the Board of Directors of any one or more of the
Constituent Corporations if the merger and other transactions
contemplated hereunder shall not have been consummated within 180
days after the execution of this Agreement, unless such failure
of consummation shall be due to the default of the party seeking
to terminate; but no termination by any party in accordance with
this subparagraph shall relieve any other party of any liability
by reason of any default hereunder, or any misrepresentation, or
breach of any warranty made herein, or pursuant hereto.
By the Board of Directors of NASB or the Board of Directors
of Holding Company if either or both reasonably concludes that it
is more likely than not that claims for appraisal and similar
rights of stockholders of NASB will be asserted in respect of the
merger by holders of more than ten percent (10%) of the
outstanding capital stock of NASB (immediately prior to the
Effective Time of the merger).
By the Board of Directors of any of the Constituent
Corporations if it determines that it is otherwise unwise to
proceed for one of the reasons mentioned in subparagraph (f) of
that section hereof entitled "Conditions Precedent."
By any party to this Agreement giving notice in writing to
the other parties in the event that another party is deemed in
Actual Default (as defined in the section hereof entitled "Actual
Default") under this Agreement.
ACTUAL DEFAULT
In the event that any part7y hereto shall consider any other
party to be in default or to have breached any of the terms of this
Agreement, notice stating with particularity the manner in which such
default is claimed shall be given in writing to the alleged defaulting
or breaching party. In such event, the alleged defaulting or
breaching party shall have twenty (20) days to cure such default or
breach before being deemed in Actual Default under this Agreement.
The giving of any such notice shall not prevent the alleged defaulting
party from establishing that, in fact, no breach or default did occur.
NOTICES
Any notice required or permitted in connection with this
Agreement shall be in writing. Any such notice may be transmitted by
mailing the same by certified or registered mail, postage prepaid, and
shall be deemed given on the day following the day deposited in the
United States mail, postage prepaid. Such notices shall be addressed
to:
North American Savings Bank, F.S.B., 00000 Xxxxx 00 Xxxxxxx,
Xxxxxxxxx, Xxxxxxxx 00000 or such other place as its principal
office may later be located;
NASB Interim Savings Bank, F.S.B., 00000 Xxxxx 00 Xxxxxxx,
Xxxxxxxxx, Xxxxxxxx 00000 or such other place as its principal
office may later be located;
NASB Financial, Inc., 00000 Xxxxx 00 Xxxxxxx, Xxxxxxxxx, Xxxxxxxx
00000 or such other place as its principal office may later be
located.
Any such notice may also be given by personal delivery to the
president or vice president of any party; and in such event, notice
shall be deemed to have been given at the time of personal delivery.
GENERAL PROVISIONS
Any and all representations, warranties, covenants, and
agreements contained herein shall survive the consummation of the
transactions contemplated hereunder.
This Agreement shall be binding upon and inure to the benefit of
the parties and their respective successors and assigns.
This Agreement shall be governed by and in accordance with the
internal laws of the State of Missouri.
This Agreement is the entire and only statement of the agreements
and understandings of the parties. It supersedes any and all pre-
existing agreements and understandings.
This Agreement may be amended by the parties hereto, by or
pursuant to action taken by their respective boards of directors, at
any time before or after approval hereof by the shareholders, but,
after any such approval, no amendment shall be made which changes the
per share consideration to be received by the shareholders or which in
any way materially adversely affects the rights of such shareholders,
without the further approval of the shareholders. This Agreement may
not be amended except by an instrument in writing signed on behalf of
each of the parties hereto.
The section titles appearing herein are for convenience of
reference only and shall not be construed to modify, limit, or define
the text of this Agreement.
This Agreement may be executed in two or more counterparts, each
of which shall be deemed an original, but all of such counterparts
shall constitute but one and the same agreement.
IN WITNESS WHEREOF, the Constituent Corporations have caused this
Agreement to be executed by their duly authorized officers as of the
1st day of April 1998.
NASB: NORTH AMERICAN SAVINGS BANK, F.S.B.
By: ____________________________________________
ATTEST:
By: ____________________________________________
INTERIM ASSOCIATION: NASB INTERIM SAVINGS BANK, F.S.B.
By: ____________________________________________
ATTEST:
By: ____________________________________________
HOLDING COMPANY: NASB FINANCIAL, INC.
By: ____________________________________________
ATTEST:
By: ____________________________________________
