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EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
BY AND BETWEEN
FIRST PREMIER FINANCIAL CORPORATION
AND
PREMIER BANCSHARES, INC.
DATED AS OF MAY 6, 1999
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TABLE OF CONTENTS
PAGE
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ARTICLE 1
TRANSACTIONS AND TERMS OF MERGER
1.1 Merger................................................................. 1
1.2 Time and Place of Closing.............................................. 1
1.3 Effective Time......................................................... 2
ARTICLE 2
TERMS OF MERGER
2.1 Certificate of Incorporation........................................... 2
2.2 Bylaws................................................................. 2
ARTICLE 3
MANNER OF CONVERTING SHARES
3.1 Conversion of Shares................................................... 2
3.2 Anti-Dilution Provisions............................................... 3
3.3 Shares Held by Premier................................................. 3
3.4 Fractional Shares...................................................... 3
ARTICLE 4
EXCHANGE OF SHARES
4.1 Exchange Procedures.................................................... 4
4.2 Rights of Former Premier Shareholders.................................. 4
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF PREMIER
5.1 Organization, Standing, and Power...................................... 5
5.2 Authority; No Breach by Agreement...................................... 5
5.3 Capital Stock.......................................................... 6
5.4 Premier Subsidiaries................................................... 6
5.5 Regulatory Filings; Financial Statements............................... 7
5.6 Notes and Obligations. ................................................ 7
5.7 Absence of Certain Changes or Events................................... 8
5.8 Tax Matters............................................................ 8
5.9 Assets................................................................. 9
5.10 Environmental Matters................................................. 9
5.11 Compliance With Laws.................................................. 10
5.12 Labor Relations....................................................... 10
5.13 Employee Benefit Plans................................................ 10
5.14 Material Contracts.................................................... 12
5.15 Legal Proceedings..................................................... 13
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5.16 Reports............................................................... 13
5.17 Statements True and Correct........................................... 13
5.18 Accounting, Tax and Regulatory Matters................................ 13
5.19 Anti-Takeover Provisions.............................................. 14
5.20 Derivatives Contracts................................................. 14
5.21 Year 2000............................................................. 14
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF FIRST PREMIER
6.1 Organization, Standing, and Power..................................... 14
6.2 Authority; No Breach By Agreement..................................... 14
6.3 Capital Stock......................................................... 15
6.4 First Premier Subsidiaries............................................ 16
6.5 Financial Statements.................................................. 16
6.6 Absence of Certain Changes or Events.................................. 16
6.7 Tax Matters........................................................... 16
6.8 Compliance With Laws.................................................. 16
6.9 Assets................................................................ 17
6.10 Legal Proceedings..................................................... 17
6.11 Reports............................................................... 18
6.12 Statements True and Correct........................................... 18
6.13 Accounting, Tax and Regulatory Matters................................ 18
6.14 Environmental Matters................................................. 18
6.15 Derivatives Contracts................................................. 19
6.16 Outstanding Premier Common Stock...................................... 19
6.17 Material Contracts.................................................... 19
6.18 Employee Benefit Plans................................................ 19
6.19 Year 2000............................................................. 21
ARTICLE 7
CONDUCT OF BUSINESS PENDING CONSUMMATION
7.1 Affirmative Covenants of Premier...................................... 21
7.2 Negative Covenants of Premier......................................... 22
7.3 Covenants of First Premier............................................ 24
7.4 Adverse Changes In Condition.......................................... 24
7.5 Reports............................................................... 24
ARTICLE 8
ADDITIONAL AGREEMENTS
8.1 Registration Statement; Proxy Statement; Shareholder Approval......... 25
8.2 Share Purchases by and Option Grants to Premier Shareholders.......... 25
8.3 Restrictions on Transfer of Shares Held by Premier Directors,
Officers and Shareholders............................................. 26
8.4 Agreement as to Efforts to Consummate................................. 26
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8.5 Applications.......................................................... 27
8.6 Access to Information; Confidentiality................................ 27
8.7 Current Information................................................... 27
8.8 Other Actions......................................................... 27
8.9 Press Releases........................................................ 28
8.10 No Solicitation....................................................... 28
8.11 Accounting and Tax Treatment.......................................... 28
8.12 Anti-Takeover Provisions.............................................. 28
8.13 Agreement of Affiliates............................................... 28
8.14 Employee Benefits and Contracts....................................... 29
8.15 Management Contracts.................................................. 29
8.16 Indemnification and Directors' Liability Insurance.................... 29
8.17 Filings with State of Missouri........................................ 30
ARTICLE 9
CONDITIONS PRECEDENT TO OBLIGATIONS TO CONSUMMATE
9.1 Conditions to Obligations of Each Party............................... 30
9.2 Conditions to Obligations of First Premier............................ 31
9.3 Conditions to Obligations of Premier.................................. 32
ARTICLE 10
TERMINATION
10.1 Termination........................................................... 33
10.2 Effect of Termination................................................. 34
10.3 Non-Survival of Representations and Covenants......................... 36
ARTICLE 11
MISCELLANEOUS
11.1 Definitions........................................................... 36
11.2 Expenses.............................................................. 43
11.3 Brokers and Finders................................................... 43
11.4 Entire Agreement...................................................... 43
11.5 Amendments............................................................ 43
11.6 Obligations of First Premier.......................................... 43
11.7 Waivers............................................................... 43
11.8 Assignment............................................................ 44
11.9 Notices............................................................... 44
11.10 Governing Law......................................................... 45
11.11 Counterparts.......................................................... 45
11.12 Captions.............................................................. 45
11.13 Severability.......................................................... 45
11.14 Enforcement of Agreement.............................................. 45
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LIST OF EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
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1. Form of agreement of affiliates of Premier Bancshares, Inc. (Section
8.13)
2. Form of opinion of Suelthaus & Xxxxx, P.C. (Section 9.2(e))
3. Form of opinion of Xxxxx, Xxxxxxxx & Xxxxxxx, LLP (Section 9.3(f))
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AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement") is made and
entered into as of May 6, 1999, by and between FIRST PREMIER FINANCIAL
CORPORATION ("First Premier"), a Delaware corporation having its principal
office located in St. Louis, Missouri, and PREMIER BANCSHARES, INC., a Missouri
corporation having its principal office located in Jefferson City, Missouri
("Premier").
PREAMBLE
The Boards of Directors of First Premier and Premier are of the
opinion that the acquisition described herein is in the best interests of the
Parties and their respective shareholders. This Agreement provides for the
acquisition of Premier by First Premier pursuant to the merger of Premier with
and into First Premier (the "Merger"). At the effective time of such Merger,
the outstanding shares of the capital stock of Premier shall be converted into
the right to receive shares of the common stock of First Premier (except as
provided herein). As a result, shareholders of Premier shall become
shareholders of First Premier. The transactions described in this Agreement are
subject to the approvals of the shareholders of First Premier and Premier, the
Board of Governors of the Federal Reserve System, the Division of Finance of
the Missouri Department of Economic Development, and the satisfaction of
certain other conditions described in this Agreement. It is the intention of
the Parties that the Merger for federal income tax purposes shall qualify as a
"reorganization" within the meaning of Section 368(a) of the Internal Revenue
Code, and will be a tax free exchange for the shareholders of Premier except
for cash received in connection with fractional shares and the exercise of
dissenters' rights.
Certain terms used in this Agreement are defined in Section 11.1 of
this Agreement.
NOW, THEREFORE, in consideration of the above and the mutual
warranties, representations, covenants, and agreements set forth herein, the
Parties agree as follows:
ARTICLE 1.
TRANSACTIONS AND TERMS OF MERGER
a. Merger. Subject to the terms and conditions of this Agreement,
at the Effective Time, Premier shall be merged with and into First Premier in
accordance with the provisions of the General and Business Corporation Law of
Missouri (the "GBCL") and the Delaware General Corporation Laws ("DGCL"). The
separate existence of Premier shall thereupon cease, and First Premier shall be
the Surviving Corporation resulting from the Merger and shall continue to be
governed by the DGCL. The Merger shall have the effects specified in ss.
351.450 RSMo of the GBCL and ss. 251 of the DGCL. The Merger shall be
consummated pursuant to the terms of this Agreement, which has been approved
and adopted by the respective Boards of Directors of First Premier and Premier.
b. Time and Place of Closing. The closing of the transactions
contemplated by this Agreement (the "Closing") will be immediately prior to the
closing of First Premier's public offering referred to Section 9.1(g) herein.
The Closing will take place at a time, place and date specified by the Parties
as they, acting through their chief executive officers or chief financial
officers, may mutually agree.
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1.3 Effective Time. The Merger and other transactions contemplated
by this Agreement shall become effective as set forth in the certificate of
merger (the "Certificate of Merger") which shall be filed with the office of
the Secretary of State of Delaware. The term "Effective Time" shall mean the
date and time when the Merger becomes effective, as set forth in the
Certificate of Merger. Subject to the terms and conditions hereof, unless
otherwise mutually agreed upon in writing by each Party, the Parties shall use
their reasonable best efforts to cause the Effective Time to occur on the date
of Closing.
ARTICLE 2.
TERMS OF MERGER
a. Certificate of Incorporation. Pursuant to the Merger, the
Certificate of Incorporation of First Premier in effect immediately prior to
the Effective Time shall be the Certificate of Incorporation of the Surviving
Corporation until otherwise amended or repealed in accordance with applicable
Law.
b. Bylaws. Pursuant to the Merger, the Bylaws of First Premier in
effect immediately prior to the Effective Time shall be the bylaws of the
Surviving Corporation until otherwise amended or repealed, in accordance with
applicable Law.
ARTICLE 3.
MANNER OF CONVERTING SHARES
a. Conversion of Shares. Subject to the provisions of this Article
3, at the Effective Time, by virtue of the Merger and without any action on the
part of First Premier or Premier, or the shareholders of any of the foregoing,
the shares of the constituent corporations shall be converted as follows:
i. Each share of First Premier Capital Stock issued and
outstanding immediately prior to the Effective Time shall remain
issued and outstanding from and after the Effective Time.
ii. Except for Premier Common Stock issued and outstanding
immediately prior to the Effective Time as to which dissenters' rights
have been perfected and not withdrawn, and subject to Section 3.4
relating to fractional shares, each share of Premier Common Stock
issued and outstanding at the Effective Time shall cease to be
outstanding and shall be converted into and exchanged for the number
of shares of First Premier Common Stock equal to the quotient obtained
by dividing $262.944 by the initial public offering price of one share
of First Premier Common Stock as determined by First Premier's
underwriters in the public offering referred to in Section 9.1(g) of
this Agreement, rounded to the nearest third decimal point (the
"Exchange Ratio"). Notwithstanding the foregoing, in no event shall
more than 42,000 shares of Common Stock of Premier be converted to
First Premier Common Stock.
iii. Notwithstanding Section 3.1(b) of this Agreement,
Premier Common Stock issued and outstanding at the Effective Time
which is held by a holder who has not voted in favor of the Merger and
who has demanded payment of the fair value of such shares ("Dissenting
Premier Shares") in accordance with ss. 351.455 RSMo of the GBCL (the
"Dissent Provisions") shall not be converted into or represent the
right to receive the First Premier Common Stock payable thereon
pursuant to Section 3.1(b) of this Agreement, and shall be entitled
only to such rights of appraisal as are granted by the Dissent
Provisions, unless and until such holder fails to perfect or
effectively withdraws or otherwise loses the right to appraisal. If,
after the Effective Time, any such holder fails
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to perfect or effectively withdraws or loses the right to appraisal,
such shares of Premier Common Stock shall be treated as if they had
been converted at the Effective Time into the right to receive the
First Premier Common Stock payable thereon pursuant to Section 3.1(b)
of this Agreement. Premier shall give First Premier prompt notice upon
receipt by Premier of any written objection to the Merger and such
written demands for payment of the fair value of shares of Premier
Common Stock, and the withdrawals of such demands, and any other
instruments provided to Premier pursuant to the Dissent Provisions
(any shareholder duly making such demand being hereinafter called a
"Dissenting Shareholder"). Each Dissenting Shareholder that becomes
entitled, pursuant to the Dissent Provisions, to payment for any
shares of Premier Common Stock held by such Dissenting Shareholder
shall receive such payment from First Premier (but only after the
amount thereof shall have been agreed upon or at the times and in the
amounts required by the Dissent Provisions) and all of such Dissenting
Shareholders' shares of Premier Common Stock shall be canceled.
Premier shall not, except with the prior written consent of First
Premier, voluntarily make any payment with respect to, or settle or
offer to settle, any demand for payment by any Dissenting Shareholder.
iv. All shares of First Premier issued pursuant to Section
3.1 shall be subject to the restrictions set forth in Section 8.3 and
shall bear an appropriate restrictive legend on the face of the
certificate representing such shares. First Premier shall instruct its
transfer agent and registrar to issue separate certificates to each
Premier shareholder for each period of restriction on trading with
respect to shares, each certificate to be for the number of shares
that are restricted for each individual period; fractional shares
shall not be represented by such individual certificates, and numbers
of shares shall be rounded down to the next lower whole number, with
the final certificate (representing shares restricted for 120 days
after closing) including any fractional shares omitted from the other
certificates due to this rounding. At such time or times as the
restrictions no longer apply with respect to one or more such
certificates, First Premier shall promptly assist any former
shareholder of Premier in causing such restrictive legend to be
removed, including, but not limited to giving written authorization to
First Premier's transfer agent and registrar to permit such shares to
be sold.
b. Anti-Dilution Provisions. In the event First Premier changes the
number of shares of First Premier Common Stock issued and outstanding prior to
the Effective Time as a result of a stock split, stock dividend,
recapitalization, reclassification, or similar transaction with respect to such
stock and the record date therefor (in the case of a stock dividend) or the
effective date thereof (in the case of a stock split or similar
recapitalization for which a record date is not established) shall be prior to
the Effective Time, the Exchange Ratio shall be proportionately adjusted.
c. Shares Held by Premier. Each share of Premier Capital Stock, if
any, held by any Premier Company, other than in a fiduciary capacity or as a
result of debts previously contracted, shall be canceled and retired at the
Effective Time and no consideration shall be issued in exchange therefor.
d. Fractional Shares. Notwithstanding any other provision of this
Agreement, each holder of shares of Premier Common Stock exchanged pursuant to
the Merger who would otherwise have been entitled to receive a fraction of a
share of First Premier Common Stock (after taking into account all certificates
delivered by such holder) shall receive, in lieu thereof, cash (without
interest) in an amount equal to such fractional part of a share of First
Premier Common Stock multiplied by the initial public offering price of one
share of First Premier Common Stock as determined by First Premier's
underwriters in the public offering referred to in Section 9.1(g) of this
Agreement.
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e. Options. There are no outstanding options to purchase Premier
Common Stock ("Premier Options").
ARTICLE 4.
EXCHANGE OF SHARES
a. Exchange Procedures. At the Effective Time, First Premier shall
deposit or shall cause to be deposited with UMB Bank, n.a., Kansas City,
Missouri (the "Exchange Agent") certificates evidencing shares of First Premier
Common Stock in such amount necessary to provide all consideration required to
be exchanged by First Premier for Premier Common Stock pursuant to the terms of
this Agreement. Promptly after the Effective Time, First Premier shall cause
the Exchange Agent to mail to the former shareholders of Premier appropriate
transmittal materials (which shall specify that delivery shall be effected, and
risk of loss and title to the certificates theretofore representing shares of
Premier Common Stock shall pass, only upon proper delivery of such certificates
to the Exchange Agent). After the Effective Time, each holder of shares of
Premier Common Stock issued and outstanding at the Effective Time shall
surrender the certificate or certificates representing such shares to the
Exchange Agent and shall upon surrender thereof promptly receive in exchange
therefor the consideration provided in Section 3.1 of this Agreement, together
with all undelivered dividends or distributions in respect of such shares
(without interest thereon) pursuant to Section 4.2 of this Agreement. To the
extent required by Section 3.4 of this Agreement, each holder of shares of
Premier Common Stock issued and outstanding at the Effective Time also shall
receive, upon surrender of the certificate or certificates representing such
shares, cash in lieu of any fractional share of First Premier Common Stock to
which such holder may be otherwise entitled (without interest). First Premier
shall not be obligated to deliver the consideration to which any former holder
of Premier Common Stock is entitled as a result of the Merger until such holder
surrenders such holder's certificate or certificates representing the shares of
Premier Common Stock for exchange as provided in this Section 4.1. The
certificate or certificates of Premier Common Stock so surrendered shall be
duly endorsed as the Exchange Agent may require. Any other provision of this
Agreement notwithstanding, neither First Premier nor the Exchange Agent shall
be liable to a holder of Premier Common Stock for any amounts paid or property
delivered in good faith to a public official pursuant to any applicable
abandoned property Law. In the event that any shareholder of Premier is unable
to surrender a certificate because it is lost or destroyed, the Exchange Agent
may make distribution to that shareholder upon receipt of such affidavits,
undertakings, indemnity bonds, and other agreements as are customary in such
circumstances.
b. Rights of Former Premier Shareholders. At the Effective Time,
the stock transfer books of Premier shall be closed as to holders of Premier
Common Stock immediately prior to the Effective Time and no transfer of Premier
Common Stock by any such holder shall thereafter be made or recognized. Until
surrendered for exchange in accordance with the provisions of Section 4.1 of
this Agreement, each certificate theretofore representing shares of Premier
Common Stock shall from and after the Effective Time represent for all purposes
only the right to receive the consideration provided in Sections 3.1 and 3.4 of
this Agreement in exchange therefor, subject, however, to First Premier's
obligation to pay any dividends or make any other distributions with a record
date prior to the Effective Time which have been declared or made by Premier in
respect of such shares of Premier Common Stock in accordance with the terms of
this Agreement and which remain unpaid at the Effective Time. Whenever a
dividend or other distribution is declared by First Premier on the First
Premier Common Stock, the record date for which is at or after the Effective
Time, the declaration shall include dividends or other distributions on all
shares issuable pursuant to this Agreement, but beginning 30 days after the
Effective Time no dividend or other distribution payable to the holders of
record of First Premier Common Stock as of any time subsequent to the Effective
Time shall be delivered to the holder of any certificate representing shares of
Premier Common Stock issued and outstanding at the
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Effective Time until such holder surrenders such certificate for exchange as
provided in Section 4.1 of this Agreement. However, upon surrender of such
Premier Common Stock certificate, or in the case of lost or destroyed
certificates delivery of the requisite affidavits, undertakings, indemnity
bonds and other agreements customary in such circumstances, both the First
Premier Common Stock certificate (together with all such undelivered dividends
or other distributions without interest) and any undelivered dividends and cash
payments to be paid for fractional share interests (without interest) shall be
delivered and paid with respect to each share represented by such certificate.
Any portion of the consideration (including the proceeds of any investments
thereof) which had been made payable to the Exchange Agent pursuant to Section
4.1 of this Agreement that remain unclaimed by the shareholders of Premier for
six (6) months after the Effective Time shall be paid to First Premier. Any
shareholders of Premier who have not theretofore complied with this Article 4
shall thereafter look only to First Premier for payment of their shares of
First Premier Common Stock and cash in lieu of fractional shares and unpaid
dividends and distributions on the First Premier Common Stock deliverable in
respect of each Premier share of Common Stock such shareholder holds as
determined pursuant to this Agreement, in each case, without any interest
thereon.
ARTICLE 5.
REPRESENTATIONS AND WARRANTIES OF PREMIER
Premier hereby represents and warrants to First Premier as follows:
a. Organization, Standing, and Power. Premier is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Missouri, and has the corporate power and authority to carry on its business as
now conducted and to own, lease and operate its material Assets. Premier is
duly qualified or licensed to transact business as a foreign corporation and is
in good standing in each jurisdiction where the character of the Assets or the
nature or conduct of its business requires it to be so qualified or licensed,
except for such jurisdictions in which the failure to be so qualified or
licensed is not reasonably likely to have, individually or in the aggregate, a
Material Adverse Effect on Premier and its Subsidiaries taken as a whole.
b. Authority; No Breach by Agreement.
i. Premier has the corporate power and authority
necessary to execute and deliver this Agreement and, subject to the
approval and adoption of this Agreement by the shareholders of Premier
and the receipt of the consents sent forth in Section 9.1(b), to
perform its obligations under this Agreement and consummate the
transactions contemplated hereby. The execution, delivery, and
performance of this Agreement by Premier and the consummation by
Premier of the transactions contemplated herein, including the Merger,
have been duly and validly authorized by all necessary corporate
action in respect thereof on the part of Premier, subject to the
approval of this Agreement by its shareholders as contemplated by
Section 8.1 of this Agreement. Subject to such requisite shareholder
approval (and assuming due authorization, execution and delivery by
First Premier and Premier) and to such Consents of Regulatory
Authorities as required by applicable Law, this Agreement represents a
legal, valid, and binding obligation of Premier, enforceable against
Premier in accordance with its terms (except in all cases as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar Laws affecting the enforcement
of creditors' rights generally and except that the availability of the
equitable remedy of specific performance or injunctive relief is
subject to the discretion of the court before which any proceeding may
be brought). The Premier Board of Directors will have received from
GRA Xxxxxxxx White & Company, PC, a letter dated on or about the date
of the Proxy Statement to the effect that, in the
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opinion of such firm, the Exchange Ratio is fair, from a financial
point of view, to the holders of Premier Common Stock.
ii. Neither the execution and delivery of this Agreement
by Premier, nor the consummation by Premier of the transactions
contemplated hereby, nor compliance by Premier with any of the
provisions hereof, will (i) conflict with or result in a breach of any
provision of Premier's Articles of Incorporation or Bylaws, or, (ii)
except as disclosed in Section 5.2(b) of the Disclosure Schedule,
constitute or result in a Default under, or require any Consent
pursuant to, or result in the creation of any Lien on any Asset of any
Premier Company under, any Contract or Permit of any Premier Company,
where such Default or Lien, or any failure to obtain such Consent, is
reasonably likely to have, individually or in the aggregate, a
Material Adverse Effect on Premier and its Subsidiaries taken as a
whole, or, (iii) subject to receipt of the requisite Consents referred
to in Section 9.1(b) of this Agreement, violate any Law or Order
applicable to any Premier Company or any of their respective material
Assets.
iii. Other than in connection or compliance with the
provisions of the Securities Laws, applicable state corporate and
securities Laws, and other than notices to or Consents required from
Regulatory Authorities, and other than notices to or filings with the
Internal Revenue Service or the Pension Benefit Guaranty Corporation
with respect to any employee benefit plans, and other than Consents,
filings, or notifications which, if not obtained or made, are not
reasonably likely to have, individually or in the aggregate, a
Material Adverse Effect on Premier, no notice to, filing with, or
Consent of, any public body or authority is necessary for the
consummation by Premier of the Merger and the other transactions
contemplated in this Agreement.
c. Capital Stock.
i. The authorized capital stock of Premier consists of
100,000 shares of Premier Common Stock, of which 41,834 shares are
issued and outstanding as of the date of this Agreement and not more
than 42,000 shares will be issued and outstanding at the Effective
Time. All of the issued and outstanding shares of capital stock of
Premier are duly and validly issued and outstanding and are fully paid
and nonassessable under the GBCL. None of the outstanding shares of
capital stock of Premier has been issued in violation of any
preemptive rights. Premier has no options or warrants to purchase
shares of Premier Common Stock.
ii. Except as set forth in Section 5.3(a) of this
Agreement, there are no shares of Premier Capital Stock or other
equity securities of Premier outstanding and no outstanding Rights
relating to Premier Capital Stock.
d. Premier Subsidiaries. Premier has disclosed in Section 5.4 of
the Disclosure Schedule all of the Premier Subsidiaries as of the date of this
Agreement. Except as disclosed in Section 5.4 of the Disclosure Schedule,
Premier or one of its Subsidiaries owns all of the issued and outstanding
shares of capital stock of each Premier Subsidiary. No equity securities of any
Premier Subsidiary are or may become required to be issued (other than to
another Premier Company) by reason of any Rights, and there are no Contracts by
which any Premier Subsidiary is bound to issue (other than to another Premier
Company) additional shares of its capital stock or Rights or by which any
Premier Company is or may be bound to transfer any shares of the capital stock
of any Premier Subsidiary (other than to another Premier Company). There are no
Contracts relating to the rights of any Premier Company to vote or to dispose
of any shares of the capital stock of any Premier Subsidiary. All of the shares
of capital stock of each Premier Subsidiary held by a Premier Company are fully
paid and nonassessable under the applicable corporation or banking Law
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of the jurisdiction in which such Subsidiary is incorporated or organized and,
except as set forth in Section 5.4 of the Disclosure Schedule, are owned by the
Premier Company free and clear of any Lien. Each Premier Subsidiary is either a
bank or a corporation, and is duly organized, validly existing, and (as to
corporations) in good standing under the Laws of the jurisdiction in which it
is incorporated or organized, and has the corporate power and authority
necessary for it to own, lease, and operate its Assets and to carry on its
business as now conducted. Each Premier Subsidiary is duly qualified or
licensed to transact business as a foreign corporation in good standing in each
jurisdiction where the character of its Assets or the nature or conduct of its
business requires it to be so qualified or licensed, except for such
jurisdictions in which the failure to be so qualified or licensed is not
reasonably likely to have, individually or in the aggregate, a Material Adverse
Effect on Premier and its Subsidiaries taken as a whole. Each Premier
Subsidiary that is a depository institution is an "insured institution" as
defined in the Federal Deposit Insurance Act and applicable regulations
thereunder, and the deposits of which are insured by the Bank Insurance Fund.
e. Regulatory Filings; Financial Statements. Premier has filed and
made available to First Premier copies of the Premier Financial Statements and
all reports of any outside auditors, consultants or advisors to Premier. Each
of the Premier Financial Statements (including, in each case, any related
notes), including any Premier Financial Statements filed after the date of this
Agreement until the Effective Time, was prepared in accordance with GAAP
applied on a consistent basis throughout the periods involved (except as may be
indicated in the notes to such financial statements), and fairly present the
consolidated financial position of Premier and its Subsidiaries at the
respective dates and the consolidated results of its operations and cash flows
for the periods indicated, except that the unaudited interim financial
statements were or are subject to normal and recurring year-end adjustments
which were not or are not expected to be material in amount and except for the
absence of certain footnote information in the unaudited interim financial
statements.
f. Notes and Obligations.
i. Except as set forth in Section 5.6 of the Disclosure
Schedule, or as provided in the loss reserve described in subparagraph
(b) below, without conducting any independent investigation, to the
Knowledge of Premier no notes receivable or any other obligations
owned by Premier or any Premier Company or due to any of them, shown
on the Premier Financial Statements or any such notes receivable and
obligations on the date hereof and as of the Effective Time have not
been and will not be genuine, legal, valid and collectible obligations
of the respective makers thereof and are not and will not be subject
to any offset or counterclaim. Except as set forth in subparagraph (b)
below, all such notes and obligations are evidenced by written
agreements, true and correct copies of which will be made available to
First Premier for examination prior to the Effective Time. All such
notes and obligations were entered into by either Premier or a Premier
Company in the ordinary course of its business and in compliance with
all applicable laws and regulations, except as to any non-compliance
which has not and will not have a Material Adverse Effect on Premier.
ii. Premier has established a loss reserve on the Premier
Financial Statements which is adequate to cover anticipated losses
which might result from such items as the insolvency or default of
borrowers or obligors on such loans or obligations, defects in the
notes or evidences of obligation (including losses of original notes
or instruments), offsets or counterclaims properly chargeable to such
reserve, or the availability of legal or equitable defenses which
might preclude or limit the ability of Premier to enforce the note or
obligation, and the representations set forth in subparagraph (a)
above are qualified in their entirety by the aggregate of such loss
reserves.
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g. Absence of Certain Changes or Events. Since December 31, 1998,
except as disclosed in Section 5.7 of the Disclosure Schedule, (i) there have
been no events, changes, or occurrences which have had, or are reasonably
likely to have, individually or in the aggregate, a Material Adverse Effect on
Premier, and (ii) Premier has not taken any action, or failed to take any
action, prior to the date of this Agreement, which action or failure, if taken
after the date of this Agreement, would represent or result in a material
breach or violation of any of the covenants and agreements of Premier provided
in Article 7 of this Agreement.
h. Tax Matters.
i. All Tax Returns required to be filed by or on behalf
of any Premier Company have been timely filed for periods ended on or
before December 31, 1997, and all Tax Returns filed are complete and
accurate in all material respects to the Knowledge of Premier. All
Taxes shown on filed Tax Returns have been paid. There is no audit
examination, deficiency, or refund Litigation with respect to any
Taxes that is reasonably likely to result in a determination that
would have, individually or in the aggregate, a Material Adverse
Effect on Premier and its Subsidiaries taken as a whole, except as
reserved against in the Premier Financial Statements delivered prior
to the date of this Agreement or as disclosed in Section 5.8(a) of the
Disclosure Schedule. All Taxes and other Liabilities due with respect
to completed and settled examinations or concluded Litigation have
been paid.
ii. No Premier Company has executed an extension or waiver
of any statute of limitations on the assessment or collection of any
Tax due that is currently in effect.
iii. Adequate provision for any Taxes due or to become due
for any Premier Company for the period or periods through and
including the date of the Premier Financial Statements has been made
and is reflected on the Premier Financial Statements.
iv. Deferred Taxes of each Premier Company have been
adequately provided for in the Premier Financial Statements.
v. Each Premier Company is in compliance with, and its
records contain all information and documents (including properly
completed Internal Revenue Service Forms W-9) necessary to comply
with, all applicable information reporting and Tax withholding
requirements under federal, state, and local Tax Laws, and such
records identify with specificity all accounts subject to backup
withholding under Section 3406 of the Internal Revenue Code, except
for such instances of noncompliance and such omissions as are not
reasonably likely to have, individually or in the aggregate, a
Material Adverse Effect on Premier and its Subsidiaries taken as a
whole.
vi. Except as disclosed in Section 5.8(f) of the
Disclosure Schedule, no Premier Company has made any payments, is
obligated to make any payments, or is a party to any contract,
agreement, or other arrangement that could obligate any Premier
Company to make any payments that would be disallowed as a deduction
under Section 280G or 162(m) of the Internal Revenue Code.
vii. There are no Liens with respect to Taxes upon any of
the Assets of any Premier Company.
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viii. No Premier Company has filed any consent under Section
341(f) of the Internal Revenue Code concerning collapsible
corporations.
ix. All material elections with respect to Taxes affecting
any Premier Company as of the date of this Agreement have been or will
be timely made as set forth in Section 5.8 of the Disclosure Schedule.
After the date hereof, other than as set forth in Section 5.8(a) of
the Disclosure Schedule, no election with respect to Taxes will be
made without the prior written consent of First Premier, which consent
will not be unreasonably withheld.
i. Assets. Except as disclosed in Section 5.9 of the Disclosure
Schedule, each Premier Company has good and marketable title, free and clear of
all Liens, to all of its respective Assets. All tangible properties used in the
businesses of each Premier Company are in good condition, reasonable wear and
tear excepted, and are usable in the ordinary course of business consistent
with Premier's past practices. All Assets which are material to Premier's
business held under leases or subleases by any Premier Company, are held under
valid Contracts which to the Knowledge of Premier are enforceable in accordance
with their respective terms (except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, or other Laws
affecting the enforcement of creditors' rights generally and except that the
availability of the equitable remedy of specific performance or injunctive
relief is subject to the discretion of the court before which any proceedings
may be brought), and each such Contract is in full force and effect. Each
Premier Company currently maintains insurance in amounts, scope, and coverage
as disclosed in Section 5.9 of the Disclosure Schedule. No Premier Company has
received written notice from any insurance carrier that (i) such insurance will
be canceled or that coverage thereunder will be reduced or eliminated, or (ii)
premium costs with respect to such policies of insurance will be substantially
increased. Except as disclosed in Section 5.9 of the Disclosure Schedule, there
are presently no claims pending under such policies of insurance and no notices
have been given by any Premier Company under such policies. The Assets of
Premier include all required assets, leases and Permits necessary to operate
its business as presently conducted.
j. Environmental Matters.
i. To the Knowledge of Premier, each Premier Company, its
Participation Facilities, and its Loan Properties are, and have been,
in compliance with all Environmental Laws, except for violations which
are not reasonably likely to have, individually or in the aggregate, a
Material Adverse Effect on Premier and its Subsidiaries taken as a
whole.
ii. To the Knowledge of Premier, there is no Litigation
pending or threatened before any court, governmental agency, or
authority or other forum in which any Premier Company or any of its
Loan Properties or Participation Facilities has been or, with respect
to threatened Litigation, may be named as a defendant or potentially
responsible party (i) for alleged noncompliance (including by any
predecessor) with any Environmental Law or (ii) relating to the
release into the environment of any Hazardous Material, whether or not
occurring at, on, under, or involving any of its Loan Properties or
Participation Facilities, except for such Litigation pending or
threatened that is not reasonably likely to have, individually or in
the aggregate, a Material Adverse Effect on Premier and its
Subsidiaries taken as a whole.
iii. To the Knowledge of Premier, there is no reasonable
basis for any Litigation of a type described above in subsection (b),
except such as is not reasonably likely to have, individually or in
the aggregate, a Material Adverse Effect on Premier.
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iv. To the Knowledge of Premier, except as disclosed in
Section 5.10(d) of the Disclosure Schedule, during the period of (i)
Premier's ownership or operation of any of their respective
properties, (ii) Premier's participation in the management of any
Participation Facility, or (iii) Premier's holding a security interest
in a Loan Property, there have been no releases of Hazardous Material
in, on, under, or affecting any Participation Facility or Loan
Property of any Premier Company, except such as are not reasonably
likely to have, individually or in the aggregate, a Material Adverse
Effect on Premier and its Subsidiaries taken as a whole.
k. Compliance With Laws. Premier is duly registered as a bank
holding company under the BHC Act. Except as set forth in Section 5.11 of the
Disclosure Schedule, each Premier Company has in effect all Permits necessary
for it to own, lease, or operate its material Assets and to carry on its
business as now conducted, except for those Permits the absence of which are
not reasonably likely to have, individually or in the aggregate, a Material
Adverse Effect on Premier and its Subsidiaries taken as a whole. No Premier
Company is presently in default under any such Permit, other than defaults
which are not reasonably likely to have, individually or in the aggregate, a
Material Adverse Effect on Premier and its Subsidiaries taken as a whole.
Except as disclosed in Section 5.11 of the Disclosure Schedule, no Premier
Company:
i. to the Knowledge of Premier, is in violation of any
Laws or Orders, applicable to its business or employees conducting its
business, except for violations which are not reasonably likely to
have, individually or in the aggregate, a Material Adverse Effect on
Premier and its Subsidiaries taken as a whole; and
ii. has received any written notification or communication
from any agency or department of federal, state, or local government
or any Regulatory Authority or the staff thereof (i) asserting that
any Premier Company is not in substantial compliance with any of the
Laws or Orders which such governmental authority or Regulatory
Authority enforces, where such noncompliance is reasonably likely to
have, individually or in the aggregate, a Material Adverse Effect on
Premier and its Subsidiaries taken as a whole, (ii) threatening to
revoke any Permits, the revocation of which is reasonably likely to
have, a Material Adverse Effect on Premier and its Subsidiaries taken
as a whole, or (iii) requiring any Premier Company to enter into or
consent to the issuance of a cease and desist order, formal agreement,
directive, commitment, or memorandum of understanding, or to adopt any
Board resolution or similar undertaking, which restricts materially
the conduct of its business, or in any manner relates to its capital
adequacy, its credit or reserve policies, its management, or the
payment of dividends.
l. Labor Relations. No Premier Company is the subject of any
Litigation asserting that it has committed an unfair labor practice (within the
meaning of the National Labor Relations Act or comparable state law) or seeking
to compel it or any other Premier Company to bargain with any labor
organization as to wages or conditions of employment, nor is there any strike
or other labor dispute involving any Premier Company, pending or, to the
Knowledge of Premier, threatened, nor is there any activity involving any
employees of any Premier Company seeking to certify a collective bargaining
unit or engaging in any other organization activity.
m. Employee Benefit Plans.
i. Premier has disclosed in Section 5.13(a) of the
Disclosure Schedule and has delivered or made available to First
Premier prior to the execution of this Agreement, copies in each case
of, all pension, retirement, profit-sharing, deferred compensation,
stock option, employee stock ownership, severance pay, vacation,
bonus, or other incentive plans, all other written employee
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programs, arrangements, or agreements, all medical, vision, dental, or
other health plans, all life insurance plans, and all other employee
benefit plans or fringe benefit plans, including "employee benefit
plans" (as that term is defined in Section 3(3) of ERISA), currently
adopted, maintained by, sponsored in whole or in part by, or
contributed to by Premier for the benefit of employees, retirees,
dependents, spouses, directors, independent contractors, or other
beneficiaries and under which employees, retirees, dependents,
spouses, directors, independent contractors, or other beneficiaries
are eligible to participate (collectively, the "Premier Benefit
Plans"). Any of the Premier Benefit Plans which is an "employee
pension benefit plan" (as that term is defined in Section 3(2) of
ERISA), is referred to herein as a "Premier ERISA Plan." No Premier
Benefit Plan is or has been a multiemployer plan within the meaning of
Section 3(37) of ERISA.
ii. Except as disclosed in Section 5.13(b) of the
Disclosure Schedule, all Premier Benefit Plans are in compliance with
the applicable terms of ERISA, the Internal Revenue Code, and any
other applicable Laws the breach or violation of which are reasonably
likely to have, individually or in the aggregate, a Material Adverse
Effect on Premier, and each Premier ERISA Plan which is intended to be
qualified under Section 401(a) of the Internal Revenue Code has
received a favorable determination letter from the Internal Revenue
Service, and Premier is not aware of any circumstances likely to
result in revocation of any such favorable determination letter. To
the Knowledge of Premier, it has not engaged in a transaction with
respect to any Premier Benefit Plan that, assuming the taxable period
of such transaction expired as of the date hereof, would subject it to
a Tax imposed by either Section 4975 of the Internal Revenue Code or
Section 502(i) of ERISA in amounts which are reasonably likely to
have, individually or in the aggregate, a Material Adverse Effect on
Premier.
iii. Except as disclosed in Section 5.13(c) of the
Disclosure Schedule, no Premier ERISA Plan has any "unfunded current
liability" (as that term is defined in Section 302(d)(8)(A) of ERISA)
and the fair market value of the assets of any such plan exceeds the
plan's "benefit liabilities," as that term is defined in Section
4001(a)(16) of ERISA, when determined under actuarial factors that
would apply if the plan terminated in accordance with all applicable
legal requirements. Except as disclosed in Section 5.13(c) of the
Disclosure Schedule, since the date of the most recent actuarial
valuation, there has been (i) no material change in the financial
position of any Premier ERISA Plan, (ii) no change in the actuarial
assumptions with respect to any Premier ERISA Plan, and (iii) no
increase in benefits under any Premier ERISA Plan as a result of plan
amendments or changes in applicable Law which is reasonably likely to
have, individually or in the aggregate, a Material Adverse Effect on
Premier or materially adversely affect the funding status of any such
plan. Neither any Premier ERISA Plan nor any "single-employer plan,"
within the meaning of Section 4001(a)(15) of ERISA, currently or
formerly maintained by Premier, or the single-employer plan of any
entity which is considered one employer with Premier under Section
4001 of ERISA or Section 414 of the Internal Revenue Code or Section
302 of ERISA (whether or not waived) (an "ERISA Affiliate") has an
"accumulated funding deficiency" within the meaning of Section 412 of
the Internal Revenue Code or Section 302 of ERISA, which is reasonably
likely to have a Material Adverse Effect on Premier. Premier has not
provided, and is not required to provide, security to an Premier ERISA
Plan or to any single-employer plan of an ERISA Affiliate pursuant to
Section 401(a)(29) of the Internal Revenue Code.
iv. Within the six-year period preceding the Effective
Time, no Liability under Subtitle C or D of Title IV of ERISA has been
or is expected to be incurred by Premier with respect to any ongoing,
frozen, or terminated single-employer plan or the single-employer plan
of any ERISA Affiliate, which Liability is reasonably likely to have a
Material Adverse Effect on Premier. Premier
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has not incurred any withdrawal Liability with respect to a
multiemployer plan under Subtitle B of Title IV of ERISA (regardless
of whether based on contributions of an ERISA Affiliate), which
Liability is reasonably likely to have a Material Adverse Effect on
Premier. No notice of a "reportable event," within the meaning of
Section 4043 of ERISA for which the 30-day reporting requirement has
not been waived, has been required to be filed for any Premier ERISA
Plan or by any ERISA Affiliate within the 12-month period ending on
the date hereof.
v. Except as disclosed in Section 5.13(e) of the
Disclosure Schedule, Premier has no Liability for retiree health and
life benefits under any of the Premier Benefit Plans and there are no
restrictions on the rights of Premier to amend or terminate any such
plan without incurring any Liability thereunder, which Liability is
reasonably likely to have a Material Adverse Effect on Premier.
vi. Neither the execution and delivery of this Agreement
nor the consummation of the transactions contemplated hereby will (i)
result in any payment (including severance, unemployment compensation,
golden parachute, or otherwise) becoming due to any director or any
employee of Premier or any of its Subsidiaries from Premier or any of
its Subsidiaries under any Premier Benefit Plan or otherwise, (ii)
increase any benefits otherwise payable under any Premier Benefit
Plan, or (iii) result in any acceleration of the time of payment or
vesting of any such benefit, where such payment, increase, or
acceleration is reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on Premier.
vii. The actuarial present values of all accrued deferred
compensation entitlements (including entitlements under any executive
compensation, supplemental retirement, or employment agreement) of
employees and former employees of Premier and their respective
beneficiaries, other than entitlements accrued pursuant to funded
retirement plans subject to the provisions of Section 412 of the
Internal Revenue Code or Section 302 of ERISA, have been fully
reflected on the Premier Financial Statements to the extent required
by and in accordance with GAAP.
n. Material Contracts. Except as disclosed in Section 5.14(a) of
the Disclosure Schedule, neither Premier nor any of its Subsidiaries is a party
to or subject to the following: (i) any employment, severance, termination,
consulting, or retirement Contract providing for aggregate payments to any
Person in any calendar year in excess of $50,000, (ii) any Contract relating to
the borrowing of money by Premier or the guarantee by Premier of any such
obligation exceeding $50,000 (other than Contracts evidencing deposit
liabilities, purchases of federal funds, fully-secured repurchase agreements,
and Federal Home Loan Bank advances of depository institution Subsidiaries,
trade payables, and Contracts relating to borrowings or guarantees made in the
ordinary course of business), and (iii) any other Contract or amendment thereto
as of the date of this Agreement not made in the ordinary course of business to
which Premier is a party or by which it is bound (together with all Contracts
referred to in Sections 5.9 and 5.13(a) of this Agreement, the "Premier
Contracts"). With respect to each Premier Contract and except as disclosed in
Section 5.14(b) of the Disclosure Schedule: (i) the Contract is in full force
and effect; (ii) neither Premier nor any of its Subsidiaries, as the case may
be, is in Default thereunder, other than Defaults which are not reasonably
likely to have, individually or in the aggregate, a Material Adverse Effect on
Premier and its Subsidiaries taken as a whole; (iii) neither Premier nor any of
its Subsidiaries, as the case may be, has repudiated or waived any material
provision of any such Contract; and (iv) no other party to any such Contract
is, to the Knowledge of Premier, in Default in any respect, other than Defaults
which are not reasonably likely to have, individually or in the aggregate, a
Material Adverse Effect on Premier, or has repudiated or waived any material
provision thereunder. Except for Federal Home Loan Bank advances, all of the
indebtedness of
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Premier and any of its Subsidiaries for money borrowed is prepayable at any
time by Premier or any of its Subsidiaries, as the case may be, without penalty
or premium.
o. Legal Proceedings. Except as disclosed in Section 5.15(a) of the
Disclosure Schedule, there is no Litigation instituted or pending, or, to the
Knowledge of Premier, threatened (or unasserted but considered probable of
assertion and which if asserted would have at least a reasonable probability of
an unfavorable outcome) against Premier, or against any Asset, employee benefit
plan, interest, or right of any of them, that is reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on Premier, nor are
there any Orders of any Regulatory Authorities, other governmental authorities,
or arbitrators outstanding against any Premier Company, that are reasonably
likely to have, individually or in the aggregate, a Material Adverse Effect on
Premier and its Subsidiaries taken as a whole. Section 5.15(b) of the
Disclosure Schedule includes a summary report of all Litigation as of the date
of this Agreement to which any Premier Company is a party and which names a
Premier Company as a defendant or cross-defendant and where the estimated
maximum exposure to be $10,000 or more.
p. Reports. For the three years ended December 31, 1998, 1997 and
1996, and since January 1, 1999, or the date of organization if later, each
Premier Company has timely filed and to the extent permitted by Law has made
available for First Premier to review, all reports and statements, together
with any amendments required to be made with respect thereto, that it was
required to file with any Regulatory Authorities. As of their respective dates,
each of such reports and documents, including the financial statements,
exhibits, and schedules thereto, complied in all material respects with all
applicable Laws. As of its respective date, each such report and document did
not contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements made
therein, in light of the circumstances under which they were made, not
misleading.
q. Statements True and Correct. None of the information supplied or
to be supplied by any Premier Company or any Affiliate thereof for inclusion in
the Registration Statement to be filed by First Premier with the SEC will, when
the Registration Statement becomes effective, be false or misleading, with
respect to any material fact, or omit to state any material fact necessary to
make the statements therein not misleading. None of the information supplied by
any Premier Company for inclusion in the Proxy Statement to be mailed to
Premier's shareholders in connection with the Shareholders' Meeting, and any
other documents to be filed by a Premier Company with any Regulatory Authority
in connection with the transactions contemplated hereby, will, at the
respective time such documents are filed, and with respect to the Proxy
Statement, when first mailed to the shareholders of Premier, be false or
misleading with respect to any material fact, or omit to state any material
fact necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading, or, in the case of the Proxy
Statement or any amendment thereof or supplement thereto, at the time of the
Shareholders' Meeting, be false or misleading with respect to any material
fact, or omit to state any material fact necessary to correct any statement in
any earlier communication with respect to the solicitation of any proxy for the
Shareholders' Meeting. All documents that Premier is responsible for filing
with any Regulatory Authority in connection with the transactions contemplated
hereby will comply as to form in all material respects with the provisions of
applicable Law.
r. Accounting, Tax and Regulatory Matters. To the Knowledge of
Premier, neither Premier nor any Affiliate thereof has taken or agreed to take
any action or has any Knowledge of any fact or circumstance that is reasonably
likely to (i) prevent the transactions contemplated hereby, including the
Merger, from qualifying as a reorganization within the meaning of Section
368(a) of the Internal Revenue Code, or (ii) materially impede or delay receipt
of any Consents of Regulatory Authorities referred to in Section 9.1(b)
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of this Agreement or result in the imposition of a condition or restriction of
the type referred to in the last sentence of such Section.
s. Anti-Takeover Provisions. Each Premier Company has taken all
action so that the entering into of this Agreement and the consummation of the
Merger and the other transactions contemplated by this Agreement do not and
will not result in any super-majority voting requirement or the grant of any
rights to any Person under its Articles of Incorporation, Bylaws, or any other
governing instruments.
t. Derivatives Contracts. Neither Premier nor any of its
Subsidiaries is a party to nor has it agreed to enter into an exchange-traded
or over-the-counter swap, forward, future, option, cap, floor, or collar
financial contract, or any other interest rate or foreign currency protection
contract not included on its balance sheet which is a financial derivative
contract (including various combinations thereof) (each a "Derivatives
Contract").
u. Year 2000. All computer software and hardware necessary for the
conduct of business by any Premier Company (the "Software") is designed to be
used before, on, and after January 1, 2000 and the Software will operate during
each such time period without error relating to the year 2000, specifically
including any error relating to, or the product of, any date data representing
or referring to any particular date. As used in the preceding sentence,
"operate" further includes, but is not limited to, accepting input of dates
without ambiguity, outputting all dates without ambiguity, and performing
calculations, comparisons, extractions, sorting and any other processing or
taking actions or making decisions using dates or time periods without
suffering any abends, aborts, invalid or incorrect results or other
interruptions, whether before, on, or after January 1, 2000. Further, every
Premier Company has received all year 2000 examinations and certifications as
required by applicable Law and will, prior to the Effective Time, make
available for First Premier's review all such examinations and certifications.
ARTICLE 6.
REPRESENTATIONS AND WARRANTIES OF FIRST PREMIER
First Premier hereby represents and warrants to Premier as follows:
a. Organization, Standing, and Power. First Premier is a
corporation duly organized, validly existing, and in good standing under the
Laws of the State of Delaware, and has the corporate power and authority to
carry on its business as now conducted and to own, lease, and operate its
material Assets. First Premier is in good standing in Missouri and such other
states of the United States and foreign jurisdictions where the character of
its Assets or the nature or conduct of its business requires it to be so
qualified or licensed except for such jurisdictions in which the failure to be
so qualified or licensed is not reasonably likely to have, individually or in
the aggregate, a Material Adverse Effect on First Premier.
b. Authority; No Breach By Agreement.
i. First Premier has the corporate power and authority
necessary to execute, deliver, and perform its obligations under this
Agreement and, subject to the approval and adoption of this Agreement
by the shareholders of First Premier, to consummate the transactions
contemplated hereby. The execution, delivery, and performance of this
Agreement and the consummation of the transactions contemplated
herein, including the Merger, have been duly and validly authorized by
all necessary corporate action in respect thereof on the part of First
Premier, subject to the approval of this Agreement by its
shareholders. Subject to such requisite shareholder approval (and
assuming
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due authorization, execution and delivery by First Premier and
Premier) and to such Consents of Regulatory Authorities as required by
applicable Law, this Agreement represents a legal, valid, and binding
obligation of First Premier, enforceable against First Premier, in
accordance with its terms (except in all cases as such enforceability
may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium, or similar Laws affecting the enforcement of creditors'
rights generally and except that the availability of the equitable
remedy of specific performance or injunctive relief is subject to the
discretion of the court before which any proceeding may be brought).
ii. Neither the execution and delivery of this Agreement
by First Premier nor the consummation by First Premier of the
transactions contemplated hereby, nor compliance by First Premier with
any of the provisions hereof, will (i) conflict with or result in a
breach of any provision of the Certificate of Incorporation or Bylaws
of First Premier or (ii) constitute or result in a Default under, or
require any Consent pursuant to, or result in the creation of any Lien
on any Asset of First Premier under any Contract or Permit of First
Premier, where such Default or Lien, or any failure to obtain such
Consent, is reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on First Premier, or, (iii)
subject to receipt of the requisite Consents referred to in Section
9.1(b) of this Agreement, violate any Law or Order applicable to First
Premier or any of its respective material Assets.
iii. Other than in connection or compliance with the
provisions of the Securities Laws, applicable state corporate and
securities Laws, and rules of NASDAQ, and other than Consents required
from Regulatory Authorities, and other than notices to or filings with
the Internal Revenue Service or the Pension Benefit Guaranty
Corporation with respect to any employee benefit plans, and other than
Consents, filings, or notifications which, if not obtained or made,
are not reasonably likely to have, individually or in the aggregate, a
Material Adverse Effect on First Premier, no notice to, filing with,
or Consent of, any public body or authority is necessary for the
consummation by First Premier of the Merger and the other transactions
contemplated in this Agreement.
c. Capital Stock. The authorized capital stock of First Premier
consists of 21,000,000 shares of First Premier Common Stock, of which 300,000
shares were issued and outstanding as of the date of this Agreement and (ii)
1,000,000 shares of First Premier Preferred Stock, of which 99,900 shares were
issued and outstanding as of the date of this Agreement. All of the issued and
outstanding shares of First Premier Capital Stock are authorized and validly
issued, and all of the First Premier Common Stock to be issued in exchange for
Premier Common Stock upon consummation of the Merger, will be authorized and
reserved for issuance prior to the Effective Time and, when issued in
accordance with the terms of this Agreement, will be, duly and validly issued
and outstanding and fully paid and nonassessable under the DGCL. First Premier
has reserved 500,000 shares of First Premier Common Stock for issuance under
the First Premier Stock Plans, pursuant to which options to purchase not more
than 329,475 shares of First Premier Common Stock are outstanding. Warrants to
purchase not more than 215,798 shares of First Premier Common Stock are
outstanding. None of the shares of First Premier Common Stock to be issued
under First Premier Stock Plan or to be issued pursuant to warrants to purchase
shares of First Premier Common Stock are subject to preemptive rights of any
current or past shareholders of First Premier. None of the outstanding shares
of First Premier Capital Stock has been, and none of the shares of First
Premier Common Stock to be issued in exchange for shares of Premier Common
Stock upon consummation of the Merger will be, issued in violation of any
preemptive rights of the current or past shareholders of First Premier. First
Premier will issue no additional Common Stock or Preferred Stock until the
Effective Time.
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d. First Premier Subsidiaries. First Premier has no active or
inactive Subsidiaries as of the date of this Agreement; provided, however, that
pursuant to the Merger and after the Effective Time, First Premier shall own
those Subsidiaries disclosed in Section 5.4 of the Disclosure Schedule.
e. Financial Statements. First Premier has delivered to Premier
prior to the execution of this Agreement copies of the First Premier Financial
Statements as of December 31, 1998. First Premier shall provide Premier with
its unaudited Financial Statements for the stub period ending March 31, 1999,
as soon as practicable after the same become available. The First Premier
Financial Statements (as of the dates thereof): (i) are, or will be, in
accordance with the books and records of First Premier, which are complete and
accurate in all material respects and which have been maintained in accordance
with good business practices, and (ii) present fairly the financial position of
First Premier as of December 31, 1998 in accordance with GAAP.
f. Absence of Certain Changes or Events. Since January 1, 1998,
except as disclosed in the First Premier Financial Statements delivered prior
to the date of this Agreement, (i) there have been no events, changes or
occurrences which have had, or are reasonably likely to have, individually or
in the aggregate, a Material Adverse Effect on First Premier, and (ii) First
Premier has not taken any action, or failed to take any action, prior to the
date of this Agreement, which action or failure, if taken after the date of
this Agreement, would represent or result in a material breach or violation of
any of the covenants and agreements of First Premier provided in Articles 7 or
8 of this Agreement.
g. Tax Matters.
i. As of the date of this Agreement, no federal, state,
local and foreign Tax Returns have been required to be filed by or on
behalf of First Premier. There is no audit examination, deficiency, or
refund Litigation with respect to any Taxes that is reasonably likely
to result in a determination that would have, individually or in the
aggregate, a Material Adverse Effect on First Premier, except as
reserved against in the First Premier Financial Statements delivered
prior to the date of this Agreement. All Taxes and other liabilities
due with respect to completed and settled examinations or concluded
Litigation have been paid.
ii. Adequate provision for any Taxes due or to become due
for First Premier for the period or periods through and including the
date of the respective First Premier Financial Statements has been
made and is reflected on such First Premier Financial Statements.
iii. Deferred Taxes of First Premier have been adequately
provided for in the First Premier Financial Statements.
iv. To the Knowledge of First Premier, First Premier is in
compliance with, and its records contain all information and documents
(including properly completed Internal Revenue Service Forms W-9)
necessary to comply with, all applicable information reporting and Tax
withholding requirements under federal, state, and local Tax Laws, and
such records identify with specificity all accounts subject to backup
withholding under Section 3406 of the Internal Revenue Code, except
for such instances of noncompliance and such omissions as are not
reasonably likely to have, individually or in the aggregate, a
Material Adverse Effect on First Premier.
h. Compliance With Laws. Prior to the consummation of the
transactions contemplated by this Agreement, First Premier will become duly
registered as a bank holding company under the BHC Act. First Premier has in
effect all Permits necessary for it to own, lease, or operate its material
Assets and to carry on
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its business as now conducted, except for those Permits the absence of which
are not reasonably likely to have, individually or in the aggregate, a Material
Adverse Effect on First Premier. First Premier is not presently in Default
under or in violation of any such Permit, other than Defaults which are not
reasonably likely to have, individually or in the aggregate, a Material Adverse
Effect on First Premier. First Premier:
i. is not in violation of any Laws, Orders, or Permits
applicable to its business or employees conducting its business,
except for violations which are not reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on First
Premier; and
ii. has not received any notification or communication
from any agency or department of federal, state, or local government
or any Regulatory Authority or the staff thereof (i) asserting that
First Premier is not in compliance with any of the Laws or Orders
which such governmental authority or Regulatory Authority enforces,
where such noncompliance is reasonably likely to have, individually or
in the aggregate, a Material Adverse Effect on First Premier, (ii)
threatening to revoke any Permits, the revocation of which is
reasonably likely to have, individually or in the aggregate, a
Material Adverse Effect on First Premier, or (iii) requiring First
Premier to enter into or consent to the issuance of a cease and desist
order, formal agreement, directive, commitment, or memorandum of
understanding, or to adopt any board resolution or similar
undertaking, which restricts materially the conduct of its business,
or in any manner relates to its capital adequacy, its credit or
reserve policies, its management or the payment of dividends.
i. Assets. Except as disclosed in Section 6.9(a) of the Disclosure
Schedule, First Premier has good and marketable title, free and clear of all
Liens (except for those Liens which are not likely to have a Material Adverse
Effect on First Premier), to all of its respective material Assets, reflected
in First Premier Financial Statements as being owned by First Premier as of the
date hereof. All material tangible properties used in the business of First
Premier are in good condition, reasonable wear and tear excepted, and are
usable in the ordinary course of business consistent with First Premier's past
practices. All Assets which are material to First Premier's business on a
consolidated basis, held under leases or subleases by First Premier, are held
under valid Contracts enforceable in accordance with their respective terms
(except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, or other Laws affecting the enforcement of
creditors' rights generally and except that the availability of the equitable
remedy of specific performance or injunctive relief is subject to the
discretion of the court before which any proceedings may be brought), and each
such Contract is in full force and effect. First Premier currently maintains
insurance in amounts, scope, and coverage as disclosed in Section 6.9(b) of the
Disclosure Schedule. First Premier has not received written notice from any
insurance carrier that (i) such insurance will be canceled or that coverage
thereunder will be reduced or eliminated, or (ii) premium costs with respect to
such policies of insurance will be substantially increased. Except as disclosed
in Section 6.9(c) of the Disclosure Schedule, to the Knowledge of First Premier
there are presently no occurrences giving rise to a claim under such policies
of insurance and no notices have been given by First Premier under such
policies.
j. Legal Proceedings. There is no Litigation instituted or pending,
or, to the Knowledge of First Premier, threatened (or unasserted but considered
probable of assertion and which if asserted would have at least a reasonable
probability of an unfavorable outcome) against First Premier, or against any
Asset, interest, or right of any of them, that is reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on First Premier,
nor are there any Orders of any Regulatory Authorities, other governmental
authorities, or arbitrators outstanding against First Premier, that are
reasonably likely to have, individually or in the aggregate, a Material Adverse
Effect on First Premier.
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k. Reports. Since its incorporation, First Premier has filed all
reports and statements, together with any amendments required to be made with
respect thereto, that it was required to file with Regulatory Authorities
(except, in the case of state securities authorities, failures to file which
are not reasonably likely to have, individually or in the aggregate, a Material
Adverse Effect on First Premier). As of their respective dates, each of such
reports and documents, including the financial statements, exhibits, and
schedules thereto, complied in all material respects with all applicable Laws.
As of its respective date, each such report and document did not, in all
material respects, contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements made therein, in light of the circumstances under which they were
made, not misleading.
l. Statements True and Correct. None of the information supplied or
to be supplied by First Premier for inclusion in the Registration Statement to
be filed by First Premier with the SEC, will, when the Registration Statement
becomes effective, be false or misleading with respect to any material fact, or
omit to state any material fact necessary to make the statements therein not
misleading. None of the information supplied or to be supplied by First Premier
for inclusion in the Proxy Statement to be mailed to Premier's shareholders in
connection with the Shareholders' Meeting, and any other documents to be filed
by First Premier or with the SEC or any other Regulatory Authority in
connection with the transactions contemplated hereby, will, at the respective
time such documents are filed, and with respect to the Proxy Statement, when
first mailed to the shareholders of Premier, be false or misleading with
respect to any material fact, or omit to state any material fact necessary to
make the statements therein, in light of the circumstances under which they
were made, not misleading, or, in the case of the Proxy Statement or any
amendment thereof or supplement thereto, at the time of the Shareholders'
Meeting, be false or misleading with respect to any material fact, or omit to
state any material fact necessary to correct any statement in any earlier
communication with respect to the solicitation of any proxy for the
Shareholders' Meeting. All documents that First Premier is responsible for
filing with any Regulatory Authority in connection with the transactions
contemplated hereby will comply as to form in all material respects with the
provisions of applicable Law.
m. Accounting, Tax and Regulatory Matters. To the Knowledge of
First Premier neither First Premier nor any affiliate has taken or agreed to
take any action or has any Knowledge of any fact or circumstance that is
reasonably likely to (i) prevent the transactions contemplated hereby,
including the Merger, from qualifying as a reorganization within the meaning of
Section 368(a) of the Internal Revenue Code, or (ii) materially impede or delay
receipt of any Consents of Regulatory Authorities referred to in Section 9.1(b)
of this Agreement or result in the imposition of a condition or restriction of
the type referred to in the last sentence of such Section.
n. Environmental Matters.
i. To the Knowledge of First Premier, except as disclosed
in Section 6.14(a) of the Disclosure Schedule, First Premier, its
Participation Facilities, and its Loan Properties are, and have been,
in compliance with all Environmental Laws, except for violations which
are not reasonably likely to have, individually or in the aggregate, a
Material Adverse Effect on First Premier.
ii. Except as disclosed in Section 6.14(b) of the
Disclosure Schedule, there is no Litigation pending, or, to the
Knowledge of First Premier, threatened before any court, governmental
agency, or authority or other forum in which First Premier or any of
its Loan Properties or Participation Facilities has been or, with
respect to threatened Litigation, may be named as a defendant or
potentially responsible party (i) for alleged noncompliance (including
by any predecessor) with any Environmental Law or (ii) relating to the
release into the environment of any Hazardous Material, whether or not
occurring at, on, under, or involving any of its Loan Properties
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or Participation Facilities, except for such Litigation pending or
threatened that is not reasonably likely to have, individually or in
the aggregate, a Material Adverse Effect on First Premier.
iii. To the Knowledge of First Premier, except as disclosed
in Section 6.14(c) of the Disclosure Schedule, there is no reasonable
basis for any Litigation of a type described above in Section 6.14(b),
except such as is not reasonably likely to have, individually or in
the aggregate, a Material Adverse Effect on First Premier.
iv. To the Knowledge of First Premier, except as disclosed
in Section 6.14(d) of the Disclosure Schedule, during the period of
(i) First Premier's ownership or operation of any of their respective
properties, (ii) First Premier's participation in the management of
any Participation Facility, or (iii) First Premier's holding a
security interest in a Loan Property, to the Knowledge of First
Premier there have been no releases of Hazardous Material in, on,
under, or affecting any Participation Facility or Loan Property of
First Premier, except such as are not reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on First
Premier.
o. Derivatives Contracts. First Premier is not a party to or has
agreed to enter into any Derivatives Contracts.
p. Outstanding Premier Common Stock. As of the date of this
Agreement, First Premier does not beneficially own any shares of Premier
Capital Stock. During the term of this Agreement, First Premier shall not
purchase or otherwise acquire beneficial ownership of any Premier Common Stock
except pursuant to the terms of this Agreement.
q. Material Contracts. Except as disclosed in Section 6.17 of the
Disclosure Schedule, neither First Premier is not a party to or subject to the
following: (i) any employment, severance, termination, consulting, or
retirement Contract providing for aggregate payments to any Person in any
calendar year in excess of $50,000, (ii) any Contract relating to the borrowing
of money by First Premier or the guarantee by First Premier of any such
obligation exceeding $50,000 (other than Contracts evidencing deposit
liabilities, purchases of federal funds, fully-secured repurchase agreements,
and Federal Home Loan Bank advances of depository institution Subsidiaries,
trade payables, and Contracts relating to borrowings or guarantees made in the
ordinary course of business), and (iii) any other Contract or amendment thereto
as of the date of this Agreement not made in the ordinary course of business to
which First Premier is a party or by which it is bound (together with all
Contracts referred to in Sections 6.9 and 6.18 of this Agreement, the "First
Premier Contracts"). With respect to each First Premier Contract and except as
disclosed in Section 6.17 of the Disclosure Schedule: (i) the Contract is in
full force and effect; (ii) First Premier is not in Default thereunder, other
than Defaults which are not reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on First Premier; (iii) First Premier has
not repudiated or waived any material provision of any such Contract; and (iv)
no other party to any such Contract is, to the Knowledge of First Premier, in
Default in any respect, other than Defaults which are not reasonably likely to
have, individually or in the aggregate, a Material Adverse Effect on First
Premier, or has repudiated or waived any material provision thereunder. Except
for Federal Home Loan Bank advances, all of the indebtedness of First Premier
for money borrowed is prepayable at any time by First Premier, without penalty
or premium.
r. Employee Benefit Plans.
i. First Premier has disclosed in Section 6.18(a) of the
Disclosure Schedule and has delivered or made available to Premier
prior to the execution of this Agreement, copies in each case of, all
pension, retirement, profit-sharing, deferred compensation, stock
option, employee stock
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ownership, severance pay, vacation, bonus, or other incentive plans,
all other written employee programs, arrangements, or agreements, all
medical, vision, dental, or other health plans, all life insurance
plans, and all other employee benefit plans or fringe benefit plans,
including "employee benefit plans" (as that term is defined in Section
3(3) of ERISA), currently adopted, maintained by, sponsored in whole
or in part by, or contributed to by First Premier for the benefit of
employees, retirees, dependents, spouses, directors, independent
contractors, or other beneficiaries and under which employees,
retirees, dependents, spouses, directors, independent contractors, or
other beneficiaries are eligible to participate (collectively, the
"First Premier Benefit Plans"). Any of the First Premier Benefit Plans
which is an "employee pension benefit plan" (as that term is defined
in Section 3(2) of ERISA), is referred to herein as a "First Premier
ERISA Plan." No First Premier Benefit Plan is or has been a
multiemployer plan within the meaning of Section 3(37) of ERISA.
ii. Except as disclosed in Section 6.18(b) of the
Disclosure Schedule, all First Premier Benefit Plans are in compliance
with the applicable terms of ERISA, the Internal Revenue Code, and any
other applicable Laws the breach or violation of which are reasonably
likely to have, individually or in the aggregate, a Material Adverse
Effect on First Premier, and each First Premier ERISA Plan which is
intended to be qualified under Section 401(a) of the Internal Revenue
Code has received a favorable determination letter from the Internal
Revenue Service, and First Premier is not aware of any circumstances
likely to result in revocation of any such favorable determination
letter. To the Knowledge of First Premier, it has not engaged in a
transaction with respect to any First Premier Benefit Plan that,
assuming the taxable period of such transaction expired as of the date
hereof, would subject it to a Tax imposed by either Section 4975 of
the Internal Revenue Code or Section 502(i) of ERISA in amounts which
are reasonably likely to have, individually or in the aggregate, a
Material Adverse Effect on First Premier.
iii. Except as disclosed in Section 6.18(c) of the
Disclosure Schedule, no First Premier ERISA Plan has any "unfunded
current liability" (as that term is defined in Section 302(d)(8)(A) of
ERISA) and the fair market value of the assets of any such plan
exceeds the plan's "benefit liabilities," as that term is defined in
Section 4001(a)(16) of ERISA, when determined under actuarial factors
that would apply if the plan terminated in accordance with all
applicable legal requirements. Except as disclosed in Section 6.18(c)
of the Disclosure Schedule, since the date of the most recent
actuarial valuation, there has been (i) no material change in the
financial position of any First Premier ERISA Plan, (ii) no change in
the actuarial assumptions with respect to any First Premier ERISA
Plan, and (iii) no increase in benefits under any First Premier ERISA
Plan as a result of plan amendments or changes in applicable Law which
is reasonably likely to have, individually or in the aggregate, a
Material Adverse Effect on First Premier or materially adversely
affect the funding status of any such plan. Neither any First Premier
ERISA Plan nor any "single-employer plan," within the meaning of
Section 4001(a)(15) of ERISA, currently or formerly maintained by
First Premier, or the single-employer plan of any entity which is
considered one employer with First Premier under Section 4001 of ERISA
or Section 414 of the Internal Revenue Code or Section 302 of ERISA
(whether or not waived) (an "ERISA Affiliate") has an "accumulated
funding deficiency" within the meaning of Section 412 of the Internal
Revenue Code or Section 302 of ERISA, which is reasonably likely to
have a Material Adverse Effect on First Premier. First Premier has not
provided, and is not required to provide, security to an First Premier
ERISA Plan or to any single-employer plan of an ERISA Affiliate
pursuant to Section 401(a)(29) of the Internal Revenue Code.
iv. Within the six-year period preceding the Effective
Time, no Liability under Subtitle C or D of Title IV of ERISA has been
or is expected to be incurred by First Premier with respect to
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any ongoing, frozen, or terminated single-employer plan or the
single-employer plan of any ERISA Affiliate, which Liability is
reasonably likely to have a Material Adverse Effect on First Premier.
First Premier has not incurred any withdrawal Liability with respect
to a multiemployer plan under Subtitle B of Title IV of ERISA
(regardless of whether based on contributions of an ERISA Affiliate),
which Liability is reasonably likely to have a Material Adverse Effect
on First Premier. No notice of a "reportable event," within the
meaning of Section 4043 of ERISA for which the 30-day reporting
requirement has not been waived, has been required to be filed for any
First Premier ERISA Plan or by any ERISA Affiliate within the 12-month
period ending on the date hereof.
v. Except as disclosed in Section 6.18(e) of the
Disclosure Schedule, First Premier has no Liability for retiree health
and life benefits under any of the First Premier Benefit Plans and
there are no restrictions on the rights of First Premier to amend or
terminate any such plan without incurring any Liability thereunder,
which Liability is reasonably likely to have a Material Adverse Effect
on First Premier.
vi. Neither the execution and delivery of this Agreement
nor the consummation of the transactions contemplated hereby will (i)
result in any payment (including severance, unemployment compensation,
golden parachute, or otherwise) becoming due to any director or any
employee of First Premier, (ii) increase any benefits otherwise
payable under any First Premier Benefit Plan, or (iii) result in any
acceleration of the time of payment or vesting of any such benefit,
where such payment, increase, or acceleration is reasonably likely to
have, individually or in the aggregate, a Material Adverse Effect on
First Premier.
vii. The actuarial present values of all accrued deferred
compensation entitlements (including entitlements under any executive
compensation, supplemental retirement, or employment agreement) of
employees and former employees of First Premier and their respective
beneficiaries, other than entitlements accrued pursuant to funded
retirement plans subject to the provisions of Section 412 of the
Internal Revenue Code or Section 302 of ERISA, have been fully
reflected on the First Premier Financial Statements to the extent
required by and in accordance with GAAP.
s. Year 2000. All computer software and hardware necessary for the
conduct of business by First Premier (the "Software") is designed to be used
before, on, and after January 1, 2000 and the Software will operate during each
such time period without error relating to the year 2000, specifically
including any error relating to, or the product of, any date data representing
or referring to any particular date. As used in the preceding sentence,
"operate" further includes, but is not limited to, accepting input of dates
without ambiguity, outputting all dates without ambiguity, and performing
calculations, comparisons, extractions, sorting and any other processing or
taking actions or making decisions using dates or time periods without
suffering any abends, aborts, invalid or incorrect results or other
interruptions, whether before, on, or after January 1, 2000. Further, First
Premier has received all year 2000 examinations and certifications as required
by applicable Law and will, prior to the Effective Time, make available for
First Premier's review all such examinations and certifications.
ARTICLE 7.
CONDUCT OF BUSINESS PENDING CONSUMMATION
a. Affirmative Covenants of Premier. Unless the prior written
consent of First Premier shall have been obtained which consent shall not be
unreasonably withheld, and except as otherwise expressly contemplated herein,
Premier shall and shall cause each of its Subsidiaries: (i) operate its
business only in
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the usual, regular, and ordinary course, (ii) use its reasonable best efforts
to preserve intact its business organization and Assets and maintain its rights
and franchises, (iii) use its reasonable best efforts to maintain its current
employee relationships, and (iv) take no action which would materially
adversely affect the ability of any Party to obtain any Consents required for
the transactions contemplated hereby without imposition of a condition or
restriction of the type referred to in the last sentence of Section 9.1(b) of
this Agreement, or materially adversely affect the ability of any Party to
perform its covenants and agreements under this Agreement.
b. Negative Covenants of Premier. From the date of this Agreement
until the earlier of the Effective Time or the termination of this Agreement,
Premier covenants and agrees that it will not do or agree or commit to do, any
of the following without the prior written consent of the chief executive
officer of First Premier:
i. amend the Articles of Incorporation, Bylaws, or other
governing instruments of any Premier Company, except as expressly
contemplated by this Agreement; or
ii. incur any additional debt obligation or other
obligation for borrowed money in excess of an aggregate of $50,000
(for every Premier Company on a consolidated basis) except in the
ordinary course of the business of Premier Subsidiaries consistent
with past practices (it being understood and agreed that the
incurrence of indebtedness in the ordinary course of business shall
include, without limitation, creation of deposit liabilities,
purchases of federal funds, advances from the Federal Reserve Bank or
Federal Home Loan Bank, and entry into repurchase agreements fully
secured by U.S. government or agency securities), or impose, or suffer
the imposition, on any Asset of any Premier Company of any Lien or
permit any such Lien to exist which Lien or Liens individually or in
the aggregate secure an obligation not in excess of $50,000 (other
than in connection with deposits, repurchase agreements, bankers
acceptances, "treasury tax and loan" accounts established in the
ordinary course of business, the satisfaction of legal requirements in
the exercise of trust powers, and Liens in effect as of the date
hereof that are disclosed in the Disclosure Schedule) provided,
however, that nothing in this paragraph shall prohibit Premier or any
Premier Subsidiary from honoring any contractual obligation in
existence on the date of this Agreement; or
iii. repurchase, redeem, or otherwise acquire or exchange
(other than exchanges in the ordinary course under employee benefit
plans), directly or indirectly, any shares, or any securities
convertible into any shares, of the capital stock of any Premier
Company, or declare or pay any dividend or make any other distribution
in respect of Premier's capital stock; or
iv. except for this Agreement, or pursuant to the exercise
of stock options outstanding as of the date hereof and pursuant to the
terms thereof in existence on the date hereof, or as disclosed in
Section 7.2(d) of the Disclosure Schedule, issue, sell, pledge,
encumber, authorize the issuance of, enter into any Contract to issue,
sell, pledge, encumber, or authorize the issuance of, or otherwise
permit to become outstanding, any additional shares of Premier Common
Stock, or any stock appreciation rights, or any option, warrant,
conversion, or other right to acquire any such stock, or any security
convertible into any such stock; or
v. adjust, split, combine, reclassify or declare and pay
any dividend or other distribution on any capital stock of any Premier
Company or issue or authorize the issuance of any other securities in
respect of or in substitution for shares of Premier Common Stock, or
sell, lease, mortgage, or otherwise dispose of or otherwise encumber
(x) any shares of capital stock of any
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Premier Subsidiary, or (y) any Asset other than in the ordinary course
of business for reasonable and adequate consideration; or
vi. except for purchases of United States Treasury
securities or United States Government agency securities, which in
either case have maturities of five years or less, purchase any
securities or make any material investment, either by purchase of
stock or securities, contributions to capital, Asset transfers, or
purchase of any Assets, in any Person other than a wholly owned
Premier Subsidiary, or otherwise acquire direct or indirect control
over any Person, other than in connection with (i) foreclosures in the
ordinary course of business, (ii) acquisitions of control by a
depository institution Subsidiary, in its fiduciary capacity, or (iii)
the creation of new wholly owned Subsidiaries organized to conduct or
continue activities otherwise permitted by this Agreement; or
vii. grant any increase in compensation or benefits to the
officers or directors of any Premier Company (provided, however, that
Premier may increase the compensation of non-officer employees by not
more than 5% of such employees' annual compensation if such increase
is consistent with past practice); pay any severance or termination
pay or any bonus other than pursuant to written policies or written
Contracts in effect on the date of this Agreement and as disclosed in
Section 7.2(g) of the Disclosure Schedule; enter into or amend any
severance agreements with officers of any Premier Company; or
voluntarily accelerate the vesting of any stock options or other
stock-based compensation or employee benefits; or
viii. enter into or amend any employment Contract between
any Premier Company and any Person (unless such amendment is required
by Law) which provides that such Premier Company does not have the
unconditional right to terminate without Liability (other than
Liability for services already rendered), at any time on or after the
Effective Time; or
ix. adopt any new employee benefit plan of any Premier
Company or make any material change in or to any existing employee
benefit plans of any Premier Company other than any such change that
is required by Law or that, in the opinion of counsel, is necessary or
advisable to maintain the tax qualified status of any plan; or
x. make any significant change in any Tax or accounting
methods or systems of internal accounting controls, except as may be
appropriate to conform to changes in Tax Laws or regulatory accounting
requirements or GAAP; or
xi. commence any Litigation other than in accordance with
past practice or in the ordinary course of business or settle any
Litigation involving any Liability of Premier Company which may have a
Material Adverse Effect on Premier or result in the imposition of
restrictions upon the operations of any Premier Company which may have
a Material Adverse Effect on Premier without first consulting with
First Premier; or
xii. except in the ordinary course of business, modify,
amend, or terminate any material Contract other than renewals without
material adverse change of terms, or waive, release, compromise, or
assign any material rights or claims; or
xiii. make any investment in excess of $50,000 either by
purchase of stock or securities, contributions to capital, property
transfers, or purchase of any property or assets of any other
individual, corporation or other entity other than a wholly owned
Subsidiary thereof; or
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xiv. sell, transfer, mortgage, encumber or otherwise
dispose of any of its material properties or assets to any individual,
corporation or other entity other than a direct or indirect wholly
owned Subsidiary, or cancel, release or assign any indebtedness to any
such Person or any claims held by any such Person, except in the
ordinary course of business consistent with past practice or pursuant
to contracts or agreements in force at the date of this Agreement.
c. Covenants of First Premier. From the date of this Agreement
until the earlier of the Effective Time or the termination of this Agreement,
First Premier covenants and agrees that it shall (i) continue to conduct its
business and the business of its Subsidiaries in a manner designed in its
reasonable judgment, to enhance the long-term value of the First Premier Common
Stock and the business prospects of First Premier, and (ii) take no action
which would (a) materially adversely affect the ability of any Party to obtain
any Consents required for the transactions contemplated hereby without
imposition of a condition or restriction of the type referred to in the last
sentence of Section 9.1(b) of this Agreement, or (b) materially adversely
affect the ability of any Party to perform its covenants and agreements under
this Agreement; provided, that the foregoing shall not prevent First Premier
from discontinuing or disposing of any of its Assets or business if such action
is, in the judgment of First Premier, desirable in the conduct of the business
of First Premier. First Premier further covenants and agrees that it will not,
without the prior written consent of the Chairman and Chief Executive Officer
of Premier, which consent shall not be unreasonably withheld, amend the
Certificate of Incorporation or Bylaws of First Premier, in each case in any
manner adverse to the holders of Premier Common Stock, issue additional Common
Stock of First Premier, or warrants or options to purchase Common Stock of
First Premier; or make an Acquisition Proposal to any individual or entity.
d. Adverse Changes In Condition. Each Party agrees to give written
notice promptly to the other Party upon becoming aware of the occurrence or
impending occurrence of any event or circumstance relating to it which (i) is
reasonably likely to have, individually or in the aggregate, a Material Adverse
Effect on it or (ii) would cause or constitute a material breach of any of its
representations, warranties, or covenants contained herein, and to use its
reasonable best efforts to prevent or promptly to remedy the same.
e. Reports. Each Party and their respective Subsidiaries shall file
all reports required to be filed by each of them with Regulatory Authorities
between the date of this Agreement and the Effective Time and shall deliver to
each other copies of all such reports promptly after the same are filed. If
financial statements are contained in any such reports filed with the SEC, such
financial statements will fairly present the consolidated financial position of
the entity filing such statements as of the dates indicated and the
consolidated results of operations, changes in shareholders' equity, and cash
flows for the periods then ended in accordance with GAAP (subject in the case
of First Premier financial statements to normal recurring year-end adjustments
that are not material and except for the absence of certain footnote
information in the unaudited financial statements). As of their respective
dates, such reports filed with the SEC will comply in all material respects
with the Securities Laws and will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. Any financial
statements contained in any other reports to another Regulatory Authority shall
be prepared in accordance with Laws applicable to such reports.
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ARTICLE 8.
ADDITIONAL AGREEMENTS
a. Registration Statement; Proxy Statement; Shareholder Approval.
As soon as practicable after execution of this Agreement (in no event later
than May 31, 1999), First Premier shall file the Registration Statement related
to First Premier's proposed Initial Public Offering ("IPO") and First Premier
and Premier shall file the Registration Proxy Statement in connection with the
Merger with the SEC, and shall use their reasonable best efforts to cause the
Registration Statement and the Registration Proxy Statement to become effective
under the 1933 Act and take any action required to be taken under the
applicable state blue sky or securities Laws in connection with the issuance of
the shares of First Premier Common Stock upon consummation of the Merger.
Premier shall furnish all information concerning it and the holders of its
capital stock as First Premier may reasonably request in connection with such
action. Premier shall call a Shareholders' Meeting, to be held on a date that
is determined by the Parties to be a mutually desirable date, which date shall
be as soon as practicable after the Registration Statement is declared
effective by the SEC, for the purpose of voting upon approval of this Agreement
and such other related matters as it deems appropriate. In connection with the
Shareholders' Meeting, (i) Premier shall prepare a Proxy Statement relating to
the Merger and mail such Proxy Statement to its shareholders, (ii) the Parties
shall furnish to each other all information concerning them that they may
reasonably request in connection with the preparation of such Proxy Statement,
(iii) the Board of Directors of Premier shall recommend (subject to compliance
with their fiduciary duties under applicable law as advised by counsel) to its
shareholders the approval of this Agreement, and (iv) the Board of Directors
and officers of Premier shall (subject to compliance with their fiduciary
duties under applicable law as advised by counsel) use their reasonable best
efforts to obtain such shareholders' approval.
b. Share Purchases by and Option Grants to Premier Shareholders. To
induce Premier to enter into this Agreement, Premier Shareholders shall be
entitled to the following: (i) In addition to any shares received in the
Merger, Premier shareholders shall not be limited in the number of shares which
they may purchase in First Premier's IPO at the initial public offering price,
subject to any required regulatory approvals for purchases that result in a
Premier shareholder owning more than ten percent (10%) of the total outstanding
shares of First Premier; (ii) Upon completion of the IPO, First Premier will
grant to each Premier shareholder (other than Xxxxx X. Xxxxx) (collectively,
the "Premier Shareholders") a warrant to purchase shares of First Premier at
the initial public offering price for a period of ten (10) years from the date
of such grant. These warrants will be granted on the same terms and conditions
as the warrants referenced in Section 6.3 of this Agreement. The aggregate
number of shares subject to these warrants shall not exceed 40,000. In
addition, the number of shares granted under each Premier Shareholder's warrant
will be determined on a pro rata basis, whereby each Premier Shareholder will
receive a warrant to purchase one share of First Premier for each share of
Premier owned by such shareholder prior to the Merger; and (iii) for a period
of forty-eight (48) months after the closing of the IPO, if any additional
options are granted to any Premier Shareholder who serves as a First Premier
advisory director or to any other non-employee Premier Shareholder; then
warrants will be granted to each Premier Shareholder on a pro rata basis,
whereby each Premier Shareholder will receive a warrant to purchase additional
shares in the same proportion as the amount of option shares granted to each
advisory director or non-employee Premier Shareholder relative to the amount of
shares owned by such advisory director or non-employee shareholder at the
Effective Time of the Merger. For example, if an advisory director or any
non-employee Premier Shareholder owned 3,000 shares of Premier at the Effective
Time of the Merger and is thereafter granted options to purchase 1,000 shares,
then each Premier Shareholder will a warrant for one-third (i.e., 1,000 /
3,000) of the amount of shares owned by such shareholder at the Effective Time
of the Merger. Therefore, pursuant to the example
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above, a Premier Shareholder who owns 1,000 shares of Premier would receive
warrants to purchase 333 shares of First Premier.
c. Restrictions on Transfer of Shares Held by Premier Directors,
Officers and Shareholders.
i. Premier and its directors will agree that, for a
period of 180 days after the effective date of the Company's
Registration Statement on Form S-1 related to the proposed IPO, they
shall not directly or indirectly sell, offer to sell, contract to
sell, solicit an offer to buy, grant any option, right or warrant for
the purchase or sale of, assign, pledge, distribute or otherwise
transfer, dispose of, encumber, (or make any announcement with respect
to any of the foregoing), any shares of common stock received pursuant
to Section 3.1 of this Agreement, which such director or officer
currently owns, has the right to dispose of or hereafter acquire,
either of record or beneficially, nor will any director or officer
request the registration of the offer or sale of any of the foregoing.
ii. Premier Shareholders, except for any shareholder who
serves as a director (whose First Premier shares will be restricted as
described in Section 8.3(a) above) shall not directly or indirectly
sell, offer to sell, contract to sell, solicit an offer to buy, grant
any option, right or warrant for the purchase or sale of, assign,
pledge, distribute or otherwise transfer, dispose of, encumber, (or
make any announcement with respect to any of the foregoing), any
shares of common stock received pursuant to Section 3.1 of this
Agreement, which such shareholder owns, has the right to dispose of or
hereafter acquire, either of record or beneficially, except as
permitted in the schedule set forth below:
AGGREGATE PERCENTAGE OF SHARES ISSUED
TO SUCH PERSON PURSUANT TO SECTION 3.1
TIME TABLE PERMITTED FOR SALE BY SUCH PERSON
---------- --------------------------------------
From the date of pricing of the IPO
through the date of closing of the IPO No sales are permitted
From 1 to 30 days after closing 10%
From 31 to 60 after closing 20%
From 61 to 90 days after closing 40%
From 91 to 120 days after closing 60%
From 121 days after closing and after 100%
d. Agreement as to Efforts to Consummate. Subject to the terms and
conditions of this Agreement, each Party agrees to use, and to cause its
Subsidiaries to use, its reasonable best efforts to take, or cause to be taken,
all actions, and to do, or cause to be done, all things necessary, proper, or
advisable under applicable Laws to consummate and make effective, as soon as
practicable after the date of this Agreement, the transactions contemplated by
this Agreement, including the use of their respective reasonable best efforts
to lift or rescind any Order adversely affecting its ability to consummate the
transactions contemplated herein and to cause to be satisfied the conditions
referred to in Article 9 of this Agreement; provided, that nothing herein shall
preclude either Party from exercising its rights under this Agreement. Each
Party shall use, and shall cause each of its Subsidiaries to use, its
reasonable best efforts to obtain all Permits and Consents necessary or
desirable for the consummation of the transactions contemplated by this
Agreement.
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e. Applications. First Premier shall promptly prepare and file, and
Premier shall cooperate in the preparation and, where appropriate, filing of,
applications with all Regulatory Authorities having jurisdiction over the
transactions contemplated by this Agreement seeking the requisite Consents
necessary to consummate the transactions contemplated by this Agreement and
thereafter use its reasonable best efforts to cause the Merger to be
consummated as expeditiously as possible.
f. Access to Information; Confidentiality. From the date hereof to
the Effective Time or termination pursuant to Article 10 of this Agreement,
upon reasonable notice and subject to applicable Laws, First Premier and
Premier shall afford each other, and each other's accountants, counsel, and
other representatives, during normal working hours for the period of time prior
to the Effective Time, reasonable access to all of its and its Subsidiaries'
properties, books, contracts, commitments, and records and, during such period,
each shall furnish promptly to the other party (i) a copy of each report,
schedule, and other document filed or received by it or any of its Subsidiaries
during such period pursuant to the requirements of the Securities Laws, (ii) a
copy of all filings made with any Regulatory Authorities or other governmental
entities in connection with the transactions contemplated by this Agreement and
all written communications received from such Regulatory Authorities and
governmental entities related thereto, and (iii) all other information
concerning its or its Subsidiaries' business, properties and personnel as such
other party may reasonably request, including reports of condition filed with
Regulatory Authorities. In this regard, without limiting the generality of the
foregoing, each of the parties hereto shall notify the other parties hereto
promptly upon the receipt by it of any comments from the SEC, or its staff, and
of any requests by the SEC for amendments or supplements to the Registration
Statement or the Proxy Statement or for additional information and will supply
the other parties hereto with copies of all correspondence between it and its
representatives, on the one hand, and the SEC or the members of its staff or
any other government official, on the other hand, with respect to the
Registration Statement or the Proxy Statement. Each party hereto shall, and
shall cause its advisors and representatives to (x) conduct its investigation
in such a manner which will not unreasonably interfere with the normal
operations, customers or employee relations of the other and shall be in
accordance with procedures established by the parties having the due regard for
the foregoing, and (y) refrain from using for any purposes other than as set
forth in this Agreement, and shall treat as confidential, all information
obtained by each hereunder or in connection herewith and not otherwise known to
them prior to the Effective Time. Except as otherwise agreed to in writing,
First Premier and Premier shall be bound by and all information given or
received pursuant to this Section 8.5 shall be subject to the terms and
conditions of that certain confidentiality agreement entered into between First
Premier and Premier dated November 19, 1998, which shall survive the
termination of this Agreement.
g. Current Information. During the period from the date of this
Agreement until the Effective Time or termination of this Agreement pursuant to
Article 10 hereof, each of Premier and First Premier shall, and shall cause its
representatives to, confer on a regular and frequent basis with representatives
of the other. Each of Premier and First Premier shall promptly notify the other
of (i) any material change in its business or operations, (ii) any material
complaints, investigations, or hearings (or communications indicating that the
same may be contemplated) of any Regulatory Authority, (iii) the institution or
threat of material Litigation involving such party, or (iv) the occurrence or
nonoccurrence, of an event or condition, the occurrence, or nonoccurrence, of
which would be reasonably expected to cause any of such party's representations
or warranties set forth herein to be false or untrue in any respect as of the
Effective Time; and in each case shall keep the other fully informed with
respect thereto.
h. Other Actions. No Party shall, or shall permit any of its
Subsidiaries, if any, to, take any action, except in every case as may be
required by applicable Law, that would or is intended to result in (i) any of
its representations and warranties set forth in this Agreement that are
qualified as to materiality being
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or becoming untrue, (ii) any of such representations and warranties that are
not so qualified become untrue in any material manner having a Material Adverse
Effect, (iii) any of the conditions set forth in this Agreement not being
satisfied or in a violation of any provision of this Agreement, or (iv)
adversely affecting the ability of any of them to obtain any of the Consents or
Permits from Regulatory Authorities (unless such action is required by sound
banking practice).
i. Press Releases. Prior to the Effective Time, Premier and First
Premier shall consult with each other as to the form and substance of any press
release or other public disclosure materially related to this Agreement or any
other transaction contemplated hereby; provided, that nothing in this Section
8.9 shall be deemed to prohibit any Party from making any disclosure which its
counsel deems necessary or advisable in order to satisfy such Party's
disclosure obligations imposed by Law.
j. No Solicitation. Except with respect to this Agreement and the
transactions contemplated hereby, from the date of this Agreement until the
Effective Time or termination pursuant to Article 10, neither a Premier Company
nor any Affiliate thereof, shall directly or indirectly solicit any Acquisition
Proposal by any Person. Except to the extent necessary to comply with the
fiduciary duties of Premier's Board of Directors, determined after consultation
with counsel, neither a Premier Company nor any Affiliate thereof, or any
Representative thereof shall furnish any nonpublic information that it is not
legally obligated to furnish or negotiate with respect to, any Acquisition
Proposal, but Premier may communicate information about such an Acquisition
Proposal to its shareholders if and to the extent that it is required to do so
in order to comply with its legal obligations as advised by counsel. Premier
shall promptly notify First Premier orally and in writing in the event that it
receives any inquiry or proposal relating to any such transaction. Premier
shall (i) immediately cease and cause to be terminated any existing activities,
discussions, or negotiations with any Persons conducted heretofore with respect
to any of the foregoing and (ii) direct and use its reasonable best efforts to
cause of all its Representatives not to engage in any of the foregoing.
k. Accounting and Tax Treatment. Each of the Parties undertakes and
agrees to use its reasonable best efforts to cause the Merger, and to take no
action which would cause the Merger not, to qualify for treatment as a
"reorganization" within the meaning of Section 368(a) of the Internal Revenue
Code for federal income tax purposes.
l. Anti-Takeover Provisions. Each Premier Company shall take all
necessary action to ensure that the entering into of this Agreement and the
consummation of the Merger and the other transactions contemplated hereby do
not and will not result in any super-majority voting requirements or the grant
of any rights to any Person under its Articles of Incorporation, Bylaws, or any
other governing instruments. In addition, each Premier Company shall take all
necessary steps to exempt the transactions contemplated by this Agreement from,
or if necessary challenge the validity or applicability of, ss. 351.459 RSMo of
the GBCL.
m. Agreement of Affiliates. Premier has disclosed in Section 8.13
of the Disclosure Schedule all Persons whom it reasonably believes are
"affiliates" of Premier for purposes of Rule 145 under the 1933 Act. Premier
shall use its reasonable best efforts to cause each such Person to deliver to
First Premier not later than 30 days prior to the Effective Time, a written
agreement, substantially in the form of Exhibit 2 attached hereto, providing
that such Person will not sell, pledge, transfer, or otherwise dispose of the
shares of Premier Common Stock held by such Person, except as contemplated by
such agreement or by this Agreement and will not sell, pledge, transfer, or
otherwise dispose of the shares of First Premier Common Stock to be received by
such Person upon consummation of the Merger except in compliance with
applicable provisions of the 1933 Act and the rules and regulations thereunder
(and First Premier shall be entitled to place restrictive legends upon
certificates for shares of First Premier Common Stock issued to affiliates of
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Premier pursuant to this Agreement to enforce the provisions of this Section
8.13). First Premier shall not be required to maintain the effectiveness of the
Registration Statement under the 1933 Act for the purposes of resale of First
Premier Common Stock by such affiliates.
n. Employee Benefits and Contracts. Following the Effective Time,
First Premier shall provide generally to continuing officers and employees of
Premier Companies employee benefits under employee benefit plans (other than
stock option or other plans involving the potential issuance of First Premier
Common Stock), on terms and conditions which when taken as a whole are no less
favorable than those currently provided by Premier. For purposes of
participation and vesting (but not benefit accrual under any employee benefit
plans of First Premier other than the Premier Benefit Plans) under such
employee benefit plans, the service of the employees of Premier prior to the
Effective Time shall be treated as service with First Premier participating in
such employee benefit plans. First Premier shall honor in accordance with their
terms all employment, severance, consulting, and other compensation Contracts
disclosed in Section 8.13 of the Disclosure Schedule between Premier and any
current or former director, officer, or employee thereof, and all provisions
for vested benefits or other vested amounts earned or accrued through the
Effective Time under the Premier Benefit Plans.
o. Management Contracts. First Premier and Xxxxx X. Xxxxx have
entered into an employment agreement dated as of the date hereof which
agreement will become effective as of the Closing.
p. Indemnification and Directors' Liability Insurance.
i. First Premier shall, and shall cause the Surviving
Corporation (and its successors and assigns) to, indemnify, defend,
and hold harmless the present and former directors, officers,
employees, and agents of Premier (each, an "Indemnified Party")
against all costs, fees or expenses (including reasonable attorneys'
fees), judgments, fines, penalties, losses, claims, damages,
liabilities and amounts paid in settlement in connection with any
Litigation arising out of actions or omissions occurring at or prior
to the Effective Time (including the transactions contemplated by this
Agreement) to the full extent permitted under applicable Law and by
Premier's Articles of Incorporation and Bylaws as in effect on the
date hereof, including provisions relating to advances of expenses
incurred in the defense of any Litigation. Without limiting the
foregoing, in any case in which approval by First Premier is required
to effectuate any indemnification, First Premier shall direct, at the
election of the Indemnified Party, that the determination of any such
approval shall be made by independent counsel mutually agreed upon
between First Premier and the Indemnified Party.
ii. If First Premier or the Surviving Corporation or any
of their successors or assigns shall consolidate with or merge into
any other Person and shall not be the continuing or surviving
corporation of such consolidation or merger or shall transfer all or
substantially all of its assets to any Person, then and in each case,
proper provision shall be made so that the successors and assigns of
First Premier shall assume the obligations set forth in this Section
8.16.
iii. Prior to the Effective Time, Premier shall purchase
for, and on behalf of, its current and former officers and directors,
extended coverage under the current directors' and officers' liability
insurance policy maintained by Premier to provide for continued
coverage of such insurance for a period of five years following the
Effective Time with respect to matters occurring prior to the
Effective Time.
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iv. The provisions of this Section 8.16 are intended to be
for the benefit of and shall be enforceable by, each Indemnified
Party, his or her heirs and representatives and shall survive the
consummation of the Merger and be binding on all successors and
assigns of First Premier and the Surviving Corporation.
q. Filings with State of Missouri. Upon the terms and subject to
the conditions of this Agreement, Premier and First Premier shall execute
articles of merger (the "Articles of Merger") and First Premier shall file the
Articles of Merger and a copy thereof with the office of the Secretary of State
of Missouri and Delaware in connection with the Closing. In addition, First
Premier shall execute and file, pursuant to ss. 351.458 RSMo of the GBCL, (i)
an agreement that First Premier will promptly pay to any Dissenting Shareholder
the amount, if any, to which such shareholder shall be entitled under the
Dissent Provisions, (ii) an agreement that First Premier may be served with
process in the State of Missouri and (iii) an irrevocable appointment of the
Secretary of State of Missouri as First Premier's agent to accept service of
process in any proceeding based upon any cause of action against Premier
arising prior to the Effective Time and any proceeding for the enforcement of
rights of any Dissenting Shareholder under the Dissent Provisions.
ARTICLE 9.
CONDITIONS PRECEDENT TO OBLIGATIONS TO CONSUMMATE
a. Conditions to Obligations of Each Party. The respective
obligations of each Party to perform this Agreement and consummate the Merger
and the other transactions contemplated hereby are subject to the satisfaction
of the following conditions, unless waived by both Parties pursuant to Section
11.7 of this Agreement:
i. Shareholder Approval. The shareholders of Premier
shall have approved this Agreement and the consummation of the
transactions contemplated hereby, including the Merger, by the
requisite 66 2/3% vote pursuant to applicable provisions of the GBCL,
and applicable Law. In addition, the shareholders of First Premier
shall have approved this Agreement and the consummation of the
transactions contemplated hereby, including the Merger, by the
requisite majority vote pursuant to Section 251 of the DGCL, and
applicable Law.
ii. Regulatory Approvals. All Consents of, filings and
registrations with, and notifications to, all Regulatory Authorities
required for consummation of the Merger shall have been obtained or
made and shall be in full force and effect and all waiting periods
required by Law shall have expired. No Consent obtained from any
Regulatory Authority which is necessary to consummate the transactions
contemplated hereby shall be conditioned or restricted in a manner
(including requirements relating to the raising of additional capital
or the disposition of Assets) which in the reasonable judgment of the
Board of Directors of either Party would so materially adversely
impact the economic or business benefits of the transactions
contemplated by this Agreement that, had such condition or requirement
been known, such Party would not, in its reasonable judgment, have
entered into this Agreement.
iii. Consents and Approvals. Other than filing the Articles
of Merger and receipt of the Certificate of Merger, each Party shall
have obtained any and all Consents required for consummation of the
Merger (other than those referred to in Section 9.1(b) of this
Agreement or listed in Section 9.1(c) of the Disclosure Schedule) or
for the preventing of any Default under any
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Contract or Permit of such Party which, if not obtained or made, is
reasonably likely to have, individually or in the aggregate, a
Material Adverse Effect on such Party.
iv. Legal Proceedings. No court or governmental or
regulatory authority of competent jurisdiction shall have enacted,
issued, promulgated, enforced, or entered any Law or Order (whether
temporary, preliminary, or permanent) or taken any other action which
prohibits, restricts, or makes illegal consummation of any of the
transactions contemplated by this Agreement.
v. Registration Statement. The Registration Statement
shall have been declared effective under the 1933 Act, and no stop
orders suspending the effectiveness of the Registration Statement
shall have been issued, and no action, suit, proceeding, or
investigation by the SEC to suspend the effectiveness thereof shall
have been initiated and be continuing, and all necessary approvals
under state securities Laws or the 1933 Act or 1934 Act relating to
the issuance or trading of the shares of First Premier Common Stock
issuable pursuant to the Merger or the IPO shall have been received.
vi. Tax Matters. Each Party shall have received a written
opinion or opinions from Xxxxx, Xxxxxxxx & Xxxxxxx, LLP, and in a form
reasonably satisfactory to such Parties (the "Tax Opinion"), to the
effect that (i) the Merger will constitute a reorganization within the
meaning of Section 368(a) of the Internal Revenue Code and (ii) the
exchange in the Merger of Premier Common Stock for First Premier
Common Stock will not give rise to gain or loss to the shareholders of
Premier with respect to such exchange (except to the extent of any
cash received). In rendering such Tax Opinion, such counsel shall be
entitled to rely upon representations of officers of Premier and First
Premier reasonably satisfactory in form and substance to such counsel.
vii. Public Offering. First Premier shall have executed a
definitive underwriting agreement with a reputable and financially
capable investment banking firm, chosen in the sole discretion of the
Board of Directors of First Premier, providing for the firm commitment
underwriting of shares of First Premier Common Stock having an
aggregate gross purchase price of at least $25 million and such shares
shall, upon issuance, be available for trading on a registered stock
exchange or the National Market of the Nasdaq Stock Market.
b. Conditions to Obligations of First Premier. The obligations of
First Premier to perform this Agreement and consummate the Merger and the other
transactions contemplated hereby are subject to the satisfaction of the
following conditions, unless waived by First Premier pursuant to Section
11.7(a) of this Agreement:
i. Representations and Warranties. For purposes of this
Section 9.2(a), the accuracy of the representations and warranties of
Premier set forth in this Agreement shall be assessed as of the date
of this Agreement and as of the Effective Time with the same effect as
though all such representations and warranties had been made on and as
of the Effective Time (provided that representations and warranties
which are confined to a specified date shall speak only as of such
date). The representations and warranties of Premier set forth in
Section 5.3 of this Agreement shall be true and correct (except for
inaccuracies which are de minimus in amount). The representations and
warranties of Premier set forth in Sections 5.17, 5.18, 5.19, and 5.20
of this Agreement shall be true and correct in all material respects.
There shall not exist inaccuracies in the representations and
warranties of Premier set forth in this Agreement (including the
representations and warranties set forth in Sections 5.3, 5.17, 5.18,
5.19, and 5.20) such that the aggregate effect of such inaccuracies
has, or is reasonably likely to have, a Material Adverse Effect on
Premier and its Subsidiaries taken
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as a whole; provided that, for purposes of this sentence only, those
representations and warranties which are qualified by references to
"material" or "Material Adverse Effect" shall be deemed not to include
such qualifications.
ii. Performance of Agreements and Covenants. Each and all
of the agreements and covenants of Premier to be performed and
complied with pursuant to this Agreement and the other agreements
contemplated hereby prior to the Effective Time shall have been duly
performed and complied with in all respects.
iii. Certificates. Premier shall have delivered to First
Premier (i) a certificate, dated as of the Effective Time and signed
on its behalf by its chief executive officer and its chief financial
officer acting in their capacities as officers of Premier, to the
effect that the conditions of its obligations set forth in Section
9.2(a) and 9.2(b) of this Agreement have been satisfied, and (ii)
certified copies of resolutions duly adopted by Premier's Board of
Directors and shareholders evidencing the taking of all corporate
action necessary to authorize the execution, delivery, and performance
of this Agreement, and the consummation of the transactions
contemplated hereby, all in such reasonable detail as First Premier
and its counsel shall request.
iv. Affiliates Agreements. First Premier shall have
received from each affiliate of Premier the affiliates agreements
referred to in Section 8.13 of this Agreement.
v. Opinion of Counsel. First Premier shall have received
a written opinion of Suelthaus & Xxxxx, P.C., counsel to Premier,
dated as of the Effective Time, with respect to such matters and in
such form as shall be agreed upon between such firm and First Premier
in substantially the form that is attached as Exhibit 2.
c. Conditions to Obligations of Premier. The obligations of Premier
to perform this Agreement and consummate the Merger and the other transactions
contemplated hereby are subject to the satisfaction of the following
conditions, unless waived by Premier pursuant to Section 11.7(b) of this
Agreement:
i. Representations and Warranties. For purposes of this
Section 9.3(a), the accuracy of the representations and warranties of
First Premier set forth in this Agreement shall be assessed as of the
date of this Agreement and as of the Effective Time with the same
effect as though all such representations and warranties had been made
on and as of the Effective Time (provided that representations and
warranties which are confined to a specified date shall speak only as
of such date). The representations and warranties of First Premier set
forth in Section 6.3 of this Agreement shall be true and correct
(except for inaccuracies which are de minimus in amount). The
representations and warranties of First Premier set forth in Section
6.11 of this Agreement shall be true and correct in all material
respects. There shall not exist inaccuracies in the representations
and warranties of First Premier set forth in this Agreement (including
the representations and warranties set forth in Sections 6.3 and 6.11)
such that the aggregate effect of such inaccuracies has, or is
reasonably likely to have, a Material Adverse Effect on First Premier;
provided that, for purposes of this sentence only, those
representations and warranties which are qualified by references to
"material" or "Material Adverse Effect" shall be deemed not to include
such qualifications.
ii. Performance of Agreements and Covenants. Each and all
of the agreements and covenants of First Premier to be performed and
complied with pursuant to this Agreement and the other agreements
contemplated hereby prior to the Effective Time shall have been duly
performed and complied with in all material respects.
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iii. Certificates. First Premier shall have delivered to
Premier (i) a certificate, dated as of the Effective Time and signed
on its behalf by its chief executive officer and its chief financial
officer, to the effect that the conditions of its obligations set
forth in Section 9.3(a) and 9.3(b) of this Agreement have been
satisfied, and (ii) certified copies of resolutions duly adopted by
First Premier's Board of Directors evidencing the taking of all
corporate action necessary to authorize the execution, delivery, and
performance of this Agreement, and the consummation of the
transactions contemplated hereby, all in such reasonable detail as
Premier and its counsel shall request.
iv. Fairness Opinion. Premier shall have received from GRA
Xxxxxxxx White & Company, PC, a letter, dated not more than five
business days prior to the date of the Proxy Statement, to the effect
that, in the opinion of such firm, the Exchange Ratio is fair, from a
financial point of view, to the holders of Premier Common Stock.
v. Payment of Consideration. First Premier shall have
delivered to the Exchange Agent the consideration to be paid to
holders of the Premier Common Stock pursuant to Sections 3.1 and 3.4
of this Agreement.
vi. Opinion of Counsel. Premier shall have received a
written opinion of Xxxxx, Xxxxxxxx & Xxxxxxx, LLP, counsel to First
Premier, dated as of the Effective Time, with respect to such matters
and in such the form as shall be agreed upon between such firm and
Premier in substantially the form that is attached hereto as Exhibit
3.
vii. Underwriters to Perform. The underwriters in the IPO
shall have given their assurances that they are ready, willing, and
able to close on the IPO, and have the funds available to deliver the
full amount of the purchase price (less the underwriters' discount)
for the shares under the IPO, immediately following the consummation
of the Merger.
ARTICLE 10.
TERMINATION
a. Termination. Notwithstanding any other provision of this
Agreement, and notwithstanding the approval of this Agreement by the
shareholders of First Premier and Premier, this Agreement may be terminated and
the Merger abandoned at any time prior to the Effective Time:
i. By mutual written consent of the Board of Directors of
First Premier and the Board of Directors of Premier; or
ii. By the Board of Directors of either First Premier or
Premier (provided that the terminating Party is not then in breach of
any representation or warranty contained in this Agreement under the
applicable standard set forth in Section 9.2(a) of this Agreement in
the case of Premier and Section 9.3(a) in the case of First Premier or
in material breach of any covenant or other agreement contained in
this Agreement) in the event of an inaccuracy of any representation or
warranty of the other Party contained in this Agreement which cannot
be or has not been cured within 30 days after the giving of written
notice to the breaching Party of such inaccuracy and which inaccuracy
would provide the terminating Party the ability to refuse to
consummate the Merger under the applicable standard set forth in
Section 9.2(a) of this Agreement in the case of Premier and Section
9.3(a) of this Agreement in the case of First Premier; or
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iii. By the Board of Directors of either First Premier or
Premier in the event of a material breach by the other Party of any
covenant, agreement, or obligation contained in this Agreement which
breach cannot be or has not been cured within 30 days after the giving
of written notice to the breaching Party of such breach; or
iv. By the Board of Directors of either First Premier or
Premier in the event (i) any Consent of any Regulatory Authority
required for consummation of the Merger and the other transactions
contemplated hereby shall have been denied by final nonappealable
action of such authority or if any action taken by such authority is
not appealed within the time limit for appeal; or (ii) the
shareholders of either First Premier or Premier fail to vote their
approval of this Agreement and the transactions contemplated hereby as
required by the DGCL and GBCL, respectively; or
v. By the Board of Directors of either First Premier or
Premier in the event that the Merger shall not have been consummated
by September 30, 1999, if the failure to consummate the transactions
contemplated hereby on or before such date is not caused by any breach
of this Agreement by the Party electing to terminate pursuant to this
Section 10.1(e); or
vi. By First Premier in the event appraisal rights are
claimed, pursuant to the Dissent Provisions, by persons owning in the
aggregate more than 10% of the issued and outstanding Premier Common
Stock; or
vii. By the Board of Directors of either First Premier or
Premier (provided that the terminating Party is not then in breach of
any representation or warranty contained in this Agreement under the
applicable standard set forth in Section 9.2(a) of this Agreement in
the case of Premier and Section 9.3(a) in the case of First Premier or
in material breach of any covenant or other agreement contained in
this Agreement) in the event that any of the conditions precedent to
the obligations of such Party to consummate the Merger cannot be
satisfied or fulfilled by the date specified in Section 10.1(e) of
this Agreement; or
viii. By Premier, if at any time prior to the Effective
Time, the fairness opinion of GRA Xxxxxxxx White & Company, PC is
withdrawn.
ix. By Premier if prior to the Effective Time, a
corporation, partnership, person, or other entity or group shall have
made a bona fide Acquisition Proposal that the Board of Directors of
Premier determines in its good faith judgment and in the exercise of
its fiduciary duties, with respect to legal matters on the written
opinion of legal counsel and as to financial matters on the written
opinion of GRA Xxxxxxxx White & Company, PC, or another investment
banking firm of national reputation, is more favorable to the
shareholders of Premier and that the failure to terminate this
Agreement and accept such alternative Acquisition Proposal would be
inconsistent with the proper exercise of such fiduciary duties.
b. Effect of Termination.
i. In the event of the termination and abandonment of
this Agreement pursuant to Section 10.1 of this Agreement, this
Agreement shall become void and have no effect, except that (i) the
provisions of this Section 10.2 and Sections 8.6 and 11.1 of this
Agreement shall survive any such termination and abandonment, and (ii)
a termination pursuant to Sections 10.1(b) or 10.1(c) or
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10.1 (f), of this Agreement shall not relieve the breaching Party from
liability for an uncured willful breach of a representation, warranty,
covenant, or agreement giving rise to such termination; provided,
further, that in the event of any termination of this Agreement
following the occurrence of an Initial Triggering Event (as defined
below) other than termination due to: (A) the failure of First Premier
to satisfy a condition to closing, (B) determination of First Premier
pursuant to Section 9.2(a) not to perform this Agreement, (C)
withdrawal of the fairness opinion of GRA Xxxxxxxx White & Company, PC
(so long as such withdrawal is not due to materially inaccurate or
fraudulent information provided by Premier to GRA Xxxxxxxx White &
Company, PC), or (D) the failure to satisfy the conditions set forth
in Section 9.1 paragraphs (b), (d), (e), (f) and (g), First Premier
shall be entitled to a cash payment from Premier in an amount equal to
$200,000 upon the occurrence of any Subsequent Triggering Event (as
defined below) within twelve (12) months following the date of such
termination. In the event this Agreement is terminated as a result of
First Premier's or Premier's failure to satisfy any of its
representations, warranties or covenants set forth herein in addition
to any other claims or rights, the non-terminating party shall
reimburse the terminating party for its reasonable out-of-pocket
expenses relating to the Merger in an amount not to exceed $50,000.
ii. The term "Initial Triggering Event" shall mean any of
the following events or transactions occurring after the date of this
Agreement:
(1) Premier, without having received First
Premier's prior written consent, shall have entered into an
agreement to engage in an Acquisition Transaction (as
hereinafter defined) with any Person (the term "Person" for
purposes of this Section also having the meaning assigned
thereto in Sections 3(a)(9) and 13(d)(3) of the 1934 Act, and
the rules and regulations thereunder) other than First Premier
or the Board of Directors of Premier shall have recommended
that the shareholders of Premier approve or accept any
Acquisition Transaction other than as contemplated by this
Agreement. For purposes of this Agreement, "Acquisition
Transaction" shall mean (x) a merger or consolidation, or any
similar transaction, involving Premier, (y) a purchase, lease
or other acquisition of all or substantially all of the assets
or deposits of Premier, or (z) a purchase or other acquisition
(including by way of merger, consolidation, share exchange or
otherwise) of securities representing 25% or more of the
voting power of Premier;
(2) Any Person (excluding the officers,
directors and existing shareholders of Premier), other than
First Premier, acting in a fiduciary capacity, shall have
acquired beneficial ownership or the right to acquire
beneficial ownership of 15% or more of the outstanding
Premier Common Stock (the term "beneficial ownership" for
purposes of this Agreement having the meaning assigned
thereto in Section 13(d) of the 1934 Act, and the rules and
regulations thereunder) and such Person does not vote such
Premier Common Stock in favor of this Agreement at the
Shareholders' Meeting or such meeting is not held or is
canceled;
(3) The Shareholders' Meeting shall not have
been held or shall have been canceled prior to termination of
this Agreement, or Premier, without having received First
Premier's prior written consent, shall have authorized,
recommended, proposed (or publicly announced its intention to
authorize, recommend or propose, or its interest in
authorizing, recommending or proposing) an agreement to engage
in an Acquisition Transaction, with any Person other than
First Premier;
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(4) Any Person other than First Premier shall
have made a bona fide proposal to any Premier Company or its
shareholders by public announcement or written communication
(a copy of which shall be provided to First Premier) to engage
in an Acquisition Transaction, which proposal has an economic
value to the shareholders of Premier equivalent to or in
excess of that of the Merger.
(5) After a proposal is made by a third party to
any Premier Company to engage in an Acquisition Transaction,
Premier shall have willfully and materially breached any
material covenant or obligation contained in this Agreement in
anticipation of engaging in an Acquisition Transaction, and
such breach would entitle First Premier to terminate this
Agreement and such breach is not cured; or
(6) Any person other than First Premier, other
than in connection with a transaction to which First Premier
has given its prior written consent, shall have filed an
application or notice with the Board of Governors of the
Federal Reserve System or other federal or state bank
regulatory authority, which application or notice has been
accepted for processing, for approval to engage in an
Acquisition Transaction.
iii. The term "Subsequent Triggering Event" shall mean any
of the following events or transactions occurring after the date hereof:
(1) The acquisition by any person (excluding the
officers, directors and existing shareholders of Premier) of
beneficial ownership of 50% or more of the then outstanding
Premier Common Stock; or
(2) The closing of the Acquisition Transaction
described in clause (i) of subsection (b) of this Section
10.2, except that the percentage referred to in clause (z)
shall be 50%.
iv. Premier shall notify First Premier promptly upon the
occurrence of any Initial Triggering Event or Subsequent Triggering Event.
c. Non-Survival of Representations and Covenants. The respective
representations and warranties of the Parties shall not survive the Effective
Time. All agreements of the Parties to this Agreement which by their terms are
to be performed following the Effective Time shall survive the Effective Time
until performed in accordance with their terms.
ARTICLE 11.
MISCELLANEOUS
a. Definitions.
i. Except as otherwise provided herein, the capitalized
terms set forth below shall have the following meanings:
"1933 Act" shall mean the Securities Act of 1933, as amended.
"1934 Act" shall mean the Securities Exchange Act of 1934, as
amended.
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"Acquisition Proposal" with respect to a Party shall mean any
tender offer or exchange offer or any proposal for a merger,
acquisition of all of the stock or assets of, or other business
combination involving such Party or any of its Subsidiaries or any
proposal or offer to acquire in any manner a substantial equity
interest in, or a substantial portion of the assets of, such Party or
any of its material Subsidiaries (other than the transactions
contemplated or permitted by this Agreement).
"Affiliate" of a Person shall mean: (i) any other Person
directly, or indirectly through one or more intermediaries,
controlling, controlled by or under common control with such Person;
(ii) any officer, director, partner, employer, or direct or indirect
beneficial owner of any 10% or greater equity or voting interest of
such Person; or (iii) any other Person for which a Person described in
clause (ii) acts in any such capacity.
"Agreement" shall mean this Agreement and Plan of Merger,
including the Exhibits delivered pursuant hereto and incorporated
herein by reference.
"Assets" of a Person shall mean all of the assets, properties,
businesses, and rights of such Person of every kind, nature,
character, and description, whether real, personal, or mixed, tangible
or intangible, accrued or contingent, or otherwise relating to or
utilized in such Person's business, directly or indirectly, in whole
or in part, whether or not carried on the books and records of such
Person, and whether or not owned in the name of such Person or any
Affiliate of such Person and wherever located.
"BHC Act" shall mean the Bank Holding Company Act of 1956, as
amended.
"Closing" shall have the meaning set forth in Section 1.2 of
this Agreement.
"Certificate of Merger" shall have the meaning set forth in
Section 1.3 of this Agreement.
"Consent" shall mean any consent, approval, authorization,
clearance, exemption, waiver, or similar affirmation by any Person
pursuant to any Contract, Law, Order, or Permit.
"Contract" shall mean any written agreement, commitment,
contract, note, bond, mortgage, indenture, instrument, lease,
obligation, license, or plan of any kind or character, or other
document to which any Person is a party or that is binding on any
Person or its capital stock or Assets.
"Default" shall mean (i) any breach or violation of or default
under any Contract, (ii) any occurrence of any event that with the
passage of time or the giving of notice or both would constitute a
breach or violation of or default under any Contract, or (iii) any
occurrence of any event that with or without the passage of time or
the giving of notice would give rise to a right to terminate or
revoke, change the current terms of, or renegotiate, or to accelerate,
increase, or impose any liability under, any Contract where, in any
such event, such default is reasonably likely to have a Material
Adverse Effect on a Party.
"Derivatives Contract" shall have the meaning set forth in
Section 5.20 of this Agreement.
"DGCL" shall have the meaning set forth in Section 1.1 of this
Agreement.
"Dissent Provisions" shall have the meaning set forth in
Section 3.1(d) of this Agreement.
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"Dissenting Premier Shares" shall have the meaning set forth
in Section 3.1(d) of this Agreement.
"Dissenting Shareholders" shall have the meaning set forth in
Section 3.1(d) of this Agreement.
"Effective Time" shall have the meaning set forth in Section
1.3 of this Agreement.
"Environmental Laws" shall mean all Laws relating to pollution
or protection of human health or the environment (including ambient
air, surface water, ground water, land surface, or subsurface strata)
and which are administered, interpreted, or enforced by the United
States Environmental Protection Agency and state and local agencies
with jurisdiction over, and including common law in respect of,
pollution or protection of the environment, including the
Comprehensive Environmental Response Compensation and Liability Act,
as amended, 42 U.S.C. 9601 et seq., the Resource Conservation and
Recovery Act, as amended, 42 U.S.C. 6901 et seq., and other Laws
relating to emissions, discharges, releases, or threatened releases of
any Hazardous Material, or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal,
transport, or handling of any Hazardous Material.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended.
"ERISA Affiliate" shall have the meaning set forth in Section
5.13(c) of this Agreement.
"Exchange Agent" shall have the meaning set forth in Section
4.1 of this Agreement.
"Exchange Ratio" shall have the meaning set forth in Section
3.1(c) of this Agreement.
"Exhibits" 1, 2, and 3 shall mean the Exhibits so marked,
copies of which are attached to this Agreement. Such Exhibits are
hereby incorporated by reference herein and made a part hereof, and
may be referred to in this Agreement and any other related instrument
or document without being attached hereto.
"First Premier" shall have the meaning set forth in the first
paragraph of this Agreement.
"First Premier Capital Stock" shall mean, collectively, First
Premier Common Stock, First Premier Preferred Stock, and any other
class or series of capital stock of First Premier.
"First Premier Common Stock" shall mean the $.01 par value per
share common stock of First Premier.
"First Premier Financial Statements" shall mean the (i)
audited consolidated balance sheets (including related notes and
schedules, if any) of First Premier as of December 31, 1998, and the
related audited statements of income, changes in stockholders' equity,
and cash flows (including related notes and schedules, if any) for the
fiscal year then ended, and (ii) the unaudited consolidated balance
sheets (including related notes and schedules, if any) of First
Premier as of March 31, 1999, and the related unaudited statements of
income, changes in stockholders' equity, and cash flows (including
related notes and schedules, if any) for the portion of the fiscal
year then ended.
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"First Premier Preferred Stock" shall mean the $.01 par value
per share preferred stock of First Premier.
"GAAP" shall mean generally accepted accounting principles in
the United States, consistently applied during the periods involved
applicable to banks or bank holding companies, as the case may be.
"GBCL" shall have the meaning set forth in Section 1.1 of this
Agreement.
"Hazardous Material" shall mean (i) any hazardous substance,
hazardous material, hazardous waste, regulated substance, or toxic
substance (as those terms are defined by any applicable Environmental
Laws) and (ii) any chemicals, pollutants, contaminants, petroleum,
petroleum products, or oil (and specifically shall include asbestos
requiring abatement, removal, or encapsulation pursuant to the
requirements of governmental authorities and any polychlorinated
biphenyls).
"Indemnified Party" shall have the meaning set forth in
Section 8.16 of this Agreement.
"Initial Public Offering" shall have the meaning set forth in
Section 8.1 of the Agreement.
"Internal Revenue Code" shall mean the Internal Revenue Code
of 1986, as amended, and the rules and regulations promulgated
thereunder.
"Knowledge" as used with respect to a Person (including
references to such Person being aware of a particular matter) shall
mean the personal knowledge of the chairman, president, chief
financial officer, chief accounting officer, chief credit officer,
general counsel, any assistant or deputy general counsel, or any
senior or executive vice president of such Person and the knowledge of
any such persons obtained or which would have been obtained from a
reasonable investigation, except as otherwise stated in this
Agreement.
"Law" shall mean any code, law, ordinance, regulation,
reporting or licensing requirement, rule, or statute applicable to a
Person or its Assets, Liabilities, or business, including those
promulgated, interpreted, or enforced by any Regulatory Authority.
"Lien" with respect to any Asset, shall mean any conditional
sale agreement, default of title, easement, encroachment, encumbrance,
hypothecation, infringement, lien, mortgage, pledge, reservation,
restriction, security interest, title retention, or other security
arrangement, or any adverse right or interest, charge, or claim of any
nature whatsoever of, on, or with respect to any property or property
interest, other than (i) Liens for current property Taxes not yet due
and payable, (ii) for depository institution Subsidiaries of a Party,
pledges to secure deposits, and (iii) other Liens incurred in the
ordinary course of the banking business.
"Litigation" shall mean any action, arbitration, cause of
action, claim, complaint, criminal prosecution, demand letter,
governmental or other examination or investigation, hearing, inquiry,
administrative or other proceeding, or notice by any Person alleging
potential liability.
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"Loan Property" shall mean any property owned, leased, or
operated by the Party in question or by any of its Subsidiaries or in
which such Party or its Subsidiary holds a security or other interest
(including an interest in a fiduciary capacity), and, where required
by the context, includes the owner or operator of such property, but
only with respect to such property.
"Material Adverse Effect" on a Party shall mean an event,
change, or occurrence which, individually or together with any other
event, change, or occurrence, (i) would in the aggregate result in an
adverse impact of $125,000 or more on the financial position or
results of operations of such Party, or (ii) would impair the ability
of such Party to perform its obligations under this Agreement or to
consummate the Merger or the other transactions contemplated by this
Agreement, provided that "Material Adverse Effect" shall not be deemed
to include the impact of (a) changes in banking and similar Laws of
general applicability or interpretations thereof by courts or
governmental authorities, (b) changes in GAAP or regulatory accounting
principles generally applicable to banks and their holding companies,
(c) actions and omissions of a Party (or any of its Subsidiaries)
taken with the prior informed consent of the other Party in
contemplation of the transactions contemplated hereby, and (d) the
Merger and compliance with the provisions of this Agreement on the
operating performance of the Parties, (e) changes in the general
economic conditions, (f) changes in the securities markets, or (g)
changes generally affecting the financial institution industry in
general, or the banking industry in Missouri or in the Jefferson City
of Columbia, Missouri areas specifically. When used with respect to
Premier, a Material Adverse Effect shall exist only if it exists with
respect to Premier and its subsidiaries taken as a whole.
"Merger" shall have the meaning set forth in the Preamble of
this Agreement.
"NASD" shall mean the National Association of Securities
Dealers, Inc.
"NASDAQ" shall mean the Nasdaq Stock Market, Inc.
"Order" shall mean any decree, injunction, judgment, order,
decision or award, ruling, or writ of any federal, state, local, or
foreign or other court, arbitrator, mediator, tribunal, administrative
agency, or Regulatory Authority.
"Participation Facility" shall mean any facility or property
in which the Party in question or any of its Subsidiaries participates
in the management and, where required by the context, said term means
the owner or operator of such facility or property, but only with
respect to such facility or property.
"Party" shall mean either First Premier or Premier, and
"Parties" shall mean collectively, First Premier and Premier.
"Permit" shall mean any federal, state, local, and foreign
governmental approval, authorization, certificate, easement, filing,
franchise, license, notice, permit, or right to which any Person is a
party or that is or may be binding upon or inure to the benefit of any
Person.
"Person" shall mean a natural person or any legal, commercial,
or governmental entity, such as, but not limited to, a corporation,
general partnership, joint venture, limited partnership, limited
liability company, trust, business association, group acting in
concert, or any person acting in a representative capacity.
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"Premier" shall have the meaning set forth in the first
paragraph of this Agreement.
"Premier Benefits Plans" shall have the meaning set forth in
Section 5.13(a) of this Agreement.
"Premier Capital Stock" shall mean, collectively, Premier
Common Stock and any other class or series of capital stock of
Premier.
"Premier Common Stock" shall mean the $1.00 par value common
stock of Premier.
"Premier Companies" shall mean, collectively, Premier and all
Premier Subsidiaries.
"Premier Contracts" shall have the meaning set forth in
Section 5.14 of this Agreement.
"Premier ERISA Plan" shall have the meaning set forth in
Section 5.13(a) of this Agreement.
"Premier Financial Statements" shall mean (i) the consolidated
balance sheets (including related notes and schedules, if any) of
Premier as of March 31, 1999, and as of December 31, 1998, 1997 and
1996, and the related statements of income, changes in shareholders'
equity, and cash flows (including related notes and schedules, if any)
for the three months ended March 31, 1999, and for each of the three
fiscal years ended December 31, 1998, 1997, and 1996, as filed by
Premier with the Board of Governors of the Federal Reserve System and
(ii) the consolidated balance sheets of Premier (including related
notes and schedules, if any) and related statements of income, changes
in shareholders' equity, and cash flows (including related notes and
schedules, if any) included in Premier's financial statements filed
and published in accordance with applicable federal regulations with
respect to periods ended subsequent to December 31, 1998.
"Proxy Statement" shall mean the proxy statement used by
Premier to solicit the approval of its shareholders of the
transactions contemplated by this Agreement, which shall include the
prospectus of First Premier relating to the issuance of First Premier
Common Stock to holders of Premier Common Stock.
"Registration Statement" shall mean the Registration Statement
on Form S-1, or other appropriate form, including any pre-effective or
post-effective amendments or supplements thereto, filed with the SEC
by First Premier under the 1933 Act with respect to the shares of
First Premier Common Stock to be issued to the shareholders of Premier
in connection with the transactions contemplated by this Agreement and
with respect to the IPO.
"Regulatory Authorities" shall mean, collectively, the Board
of Governors of the Federal Reserve System, the Federal Deposit
Insurance Corporation, the SEC, the Missouri Division of Finance, the
NASD, NASDAQ and all state regulatory agencies having jurisdiction
over the Parties and their respective Subsidiaries.
"Rights" shall mean all arrangements, calls, Contracts,
options, rights to subscribe to, scrip, understandings, warrants, or
other binding obligations of any character whatsoever relating to, or
securities or rights convertible into or exchangeable for, shares of
the capital stock of a Person or any Contract, commitments or other
arrangements by which a Person is or may be bound to issue additional
shares of its capital stock or options, warrants, rights to purchase
or acquire any additional shares of its capital stock, or other
Rights.
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"SEC" shall mean the Securities and Exchange Commission.
"SEC Documents" shall mean all forms, proxy statements,
registration statements, reports, schedules, and other documents
filed, or required to be filed, by a Party or any of its Subsidiaries
with any Regulatory Authority pursuant to the Securities Laws.
"Securities Laws" shall mean the 1933 Act, the 1934 Act, the
Investment Company Act of 1940, as amended, the Investment Advisors
Act of 1940, as amended, the Trust Indenture Act of 1939, as amended,
and the rules and regulations of any Regulatory Authority promulgated
thereunder.
"Shareholders' Meeting" shall mean the meeting of the
shareholders of Premier to be held pursuant to Section 8.1 of this
Agreement, including any adjournment or adjournments thereof.
"Subsidiaries" shall mean all corporations, banks,
associations, or other entities of which the entity in question owns
or controls 50% or more of the outstanding equity securities, either
directly or through an unbroken chain of entities as to each of which
50% or more of the outstanding equity securities is owned directly or
indirectly by its parent; provided, however, there shall not be
included in this definition any such entity acquired through
foreclosure or any such entity the equity securities of which are
owned or controlled in a fiduciary capacity.
"Surviving Corporation" shall mean the surviving corporation
resulting from the Merger.
"Tax" or "Taxes" shall mean all federal, state, local, and
foreign taxes, charges, fees, levies, imposts, duties, or other
assessments, including income, gross receipts, excise, employment,
sales, use, transfer, license, payroll, franchise, severance, stamp,
occupation, windfall profits, environmental, federal highway use,
commercial rent, customs duties, capital stock, paid-up capital,
profits, withholding, Social Security, single business and
unemployment, disability, real property, personal property,
registration, ad valorem, value added, alternative or add-on minimum,
estimated, or other tax or governmental fee of any kind whatsoever,
imposed or required to be withheld by the United States or any state,
local, foreign government or subdivision or agency thereof, including
any interest, penalties or additions thereto.
"Tax Opinion" shall have the meaning set forth in Section
9.1(f) of this Agreement.
"Taxable Period" shall mean any period prescribed by any
governmental authority, including the United States or any state,
local, foreign government or subdivision or agency thereof for which a
Tax Return is required to be filed or Tax is required to be paid.
"Tax Return" shall mean any report, return, information
return, or other information required to be supplied to a taxing
authority in connection with Taxes, including any return of an
affiliated or combined or unitary group that includes a Party or its
Subsidiaries.
ii. Any singular term in this Agreement shall be deemed to
include the plural, and any plural term the singular. Whenever the
words "include," "includes," or "including" are used in this
Agreement, they shall be deemed followed by the words "without
limitation."
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b. Expenses.
i. Except as otherwise provided in this Section 11.2 and
in Section 10.2, each of First Premier and Premier shall bear and pay
all direct costs and expenses incurred by it or on its behalf in
connection with the transactions contemplated hereunder, including
filing, registration, and application fees, printing fees, and fees
and expenses of its own financial or other consultants, investment
bankers, accountants, and counsel.
ii. Nothing contained in this Section 11.2 shall
constitute or shall be deemed to constitute liquidated damages for the
willful breach by a Party of the terms of this Agreement or otherwise
limit the rights of the nonbreaching Party.
c. Brokers and Finders. Each of the Parties represents and
warrants that neither it nor any of its officers, directors, employees, or
Affiliates has employed any broker or finder in connection with this Agreement
or the transactions contemplated hereby. In the event of a claim by any broker
or finder based upon his or its representing or being retained by or allegedly
representing or being retained by First Premier or Premier, each of First
Premier and Premier, as the case may be, agrees to indemnify and hold the other
Party harmless of and from any Liability in respect of any such claim.
d. Entire Agreement. Except for the Confidentiality Agreement and
except as otherwise expressly provided herein, this Agreement constitutes the
entire agreement between the Parties with respect to the transactions
contemplated hereunder and supersedes all prior arrangements or understandings
with respect thereto, written or oral.
e. Amendments. To the extent permitted by Law, this Agreement may
be amended by a subsequent writing signed by each of the Parties upon the
approval of the Boards of Directors of each of the Parties, whether before or
after shareholder approval of this Agreement has been obtained; provided, that
after any such approval by the shareholders of either First Premier or Premier,
there shall be made no amendment that reduces or modifies in any material
respect the consideration to be received by holders of Premier Common Stock,
without the further approval of such shareholders.
f. Obligations of First Premier. Whenever this Agreement requires
First Premier (including the Surviving Corporation) to take any action, such
requirement shall be deemed to include an undertaking by First Premier to cause
any future First Premier Subsidiaries to take such action.
g. Waivers.
i. Prior to or at the Effective Time, First Premier,
acting through its Board of Directors, chief executive officer,
president or other authorized officer, shall have the right to waive
any default in the performance of any term of this Agreement by
Premier, to waive or extend the time for the compliance or fulfillment
by Premier of any and all of its obligations under this Agreement, and
to waive any or all of the conditions precedent to the obligations of
First Premier under this Agreement, except any condition which, if not
satisfied, would result in the violation of any Law. No such waiver
shall be effective unless in writing signed by a duly authorized
officer of First Premier.
ii. Prior to or at the Effective Time, Premier, acting
through its Board of Directors, chief executive officer, president or
other authorized officer, shall have the right to waive any default in
the performance of any term of this Agreement by First Premier, to
waive or extend the time for
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the compliance or fulfillment by First Premier of any and all of its
obligations under this Agreement, and to waive any or all of the
conditions precedent to the obligations of Premier under this
Agreement, except any condition which, if not satisfied, would result
in the violation of any Law. No such waiver shall be effective unless
in writing signed by a duly authorized officer of Premier.
iii. The failure of any Party at any time or times to
require performance of any provision hereof shall in no manner affect
the right of such Party at a later time to enforce the same or any
other provision of this Agreement. No waiver of any condition or of
the breach of any term contained in this Agreement in one or more
instances shall be deemed to be or construed as a further or
continuing waiver of such condition or breach or a waiver of any other
condition or of the breach of any other term of this Agreement.
h. Assignment. Except as expressly contemplated hereby, neither
this Agreement nor any of the rights, interests, or obligations hereunder shall
be assigned by any Party hereto (whether by operation of Law or otherwise)
without the prior written consent of the other Party. Subject to the preceding
sentence, this Agreement will be binding upon, inure to the benefit of, and be
enforceable by the Parties and their respective successors and assigns.
i. Notices. All notices or other communications which are
required or permitted hereunder shall be in writing and sufficient if delivered
by hand, by facsimile transmission, by registered or certified mail, postage
pre-paid, or by courier or overnight carrier, to the persons at the addresses
set forth below (or at such other address as may be provided hereunder), and
shall be deemed to have been delivered as of the date so delivered:
Premier: Premier Bancshares, Inc.
000 Xxxx Xxxxxxx Xxxxxxxxx
Xxxxxxxxx Xxxx, Xxxxxxxx 00000
Telephone Number: (000) 000-0000
Telecopy Number: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxxxx, Chairman
and Xxxxx Xxxxx, President and Chief Executive Officer
Copy to Counsel: Suelthaus & Xxxxx, P.C.
0000 Xxxxxxx Xxxxxxxxx, Xxxxxxx Xxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Telephone Number: (000) 000-0000
Telecopy Number: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxxx, Esq.
First Premier: First Premier Financial Corporation
00000 Xxxxxxxx Xxxx
Xx. Xxxxx, Xxxxxxxx 00000
Telephone Number: (000) 000-0000
Telecopy Number: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx, President and
Chief Executive Officer
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Copy to Counsel: Xxxxx, Xxxxxxxx & Xxxxxxx, XXX
Xxxxx 0000, Xxxxxxxxx XX
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Telephone Number: (000) 000-0000
Telecopy Number: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Copies to Counsel shall not constitute notice.
j. Governing Law. This Agreement shall be governed by and construed
in accordance with the Laws of the State of Missouri, without regard to any
applicable principals of conflicts of laws, except to the extent that the Laws
of the United States govern the consummation of the Merger.
k. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
l. Captions. The captions contained in this Agreement are for
reference purposes only and are not part of this Agreement.
m. Severability. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of
this Agreement is so broad as to be unenforceable, the provision shall be
interpreted to be only so broad as is enforceable.
n. Enforcement of Agreement. The Parties hereto agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement was not performed in accordance with its specific terms or was
otherwise breached. It is accordingly agreed that the Parties shall be entitled
to an injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions hereof in any court of the United
States or any state having jurisdiction, this being in addition to any other
remedy to which they are entitled at law or in equity.
45
51
IN WITNESS WHEREOF, each of the Parties has caused this Agreement to
be executed on its behalf and its corporate seal to be hereunto affixed and
attested by officers thereunto as of the day and year first above written.
FIRST PREMIER FINANCIAL CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President and Chief Executive Officer
PREMIER BANCSHARES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Chairman
