1
EXHIBIT 2.1
FIRST AMENDMENT
TO
AGREEMENT AND PLAN OF REORGANIZATION
THIS FIRST AMENDMENT TO AGREEMENT AND PLAN OF REORGANIZATION (this
"First Amendment"), dated as of January 24, 2000, is made by and among GOLD
BANC CORPORATION, INC., a Kansas corporation ("Gold Banc"), GOLD BANC
ACQUISITION CORPORATION XI, INC., a Kansas corporation ("Acquisition
Subsidiary") and AMERICAN BANCSHARES, INC., a Florida corporation (the
"Company").
RECITALS
A. Gold Banc, Acquisition Subsidiary and the Company entered into an
Agreement and Plan of Reorganization, dated as of September 6, 1999 (the
"Original Agreement"), providing for the merger of the Company with and into
Acquisition Subsidiary (the "Merger").
B. Gold Banc, Acquisition Subsidiary and the Company desire to amend
the Original Agreement in the manner set forth in this First Amendment (the
Original Agreement, as amended by this First Amendment, is referred to herein
as the "Agreement").
AGREEMENT
ACCORDINGLY, in consideration of the premises, the mutual covenants
and agreements set forth herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Definitions. All capitalized terms not otherwise defined herein
shall have the meanings set forth in the Original Agreement.
2. Revised Definitions.
(a) The definition of "Total Equity Capital" set forth in Section 1.1
of the Merger Agreement is hereby amended by deleting the definition of
"Total Equity Capital" set forth in Section 1.1 in its entirety and by
inserting, in lieu thereof, the following:
"Total Equity Capital" means, with respect to the Company and its
Subsidiaries, the sum of (a) outstanding capital stock, paid in capital,
retained earnings and current year earnings, all determined in accordance with
GAAP, but excluding any FAS 115 adjustments, and (b) the realized bond losses
(the "Bond Losses"), totaling an aggregate of $457,000 net of applicable tax
effect ($693,000 before taxes), which were recognized by the Company at the
request of Gold Banc in anticipation of the transactions contemplated by this
Agreement.
(b) Section 1.1 of the Merger Agreement is hereby amended by adding
the following definition in alphabetical order:
"Bond Losses" shall have the meaning set forth in the definition of
Total Equity Capital in Section 1.1 hereof.
2
3. Section 2.7. The final sentence of Section 2.7 of the Original
Agreement, which immediately follows Section 2.7(b) shall be deleted.
4. Section 2.14. Section 2.14(a) of the Original Agreement is hereby
amended by deleting Section 2.14(a) in its entirety and by inserting, in lieu
thereof, the following:
(a) If by the Closing Date either the Company or the Bank fail to
achieve any of the financial measures set forth in Section 8.5 hereof, then
Gold Banc and the Company shall in good faith attempt to negotiate a mutually
acceptable revised Exchange Ratio, which negotiations shall be based upon the
formula set forth in Section 2.14(b) hereof; provided, however, that if a
mutually acceptable revised Exchange Ratio is not negotiated within five (5)
Business Days, then Gold Banc may terminate this Agreement as provided in
Section 11.1(d)(i) hereof.
5. Article V. Article V of the Merger Agreement is hereby amended by
adding the following provisions at the end thereof (with conforming changes to
the table of contents):
Section 5.22 Bond Losses. On or prior to December 31, 1999, the
Company shall take the Bond Losses.
Section 5.23 Dissolution of Finance. On or prior to the Closing Date,
the Company shall use reasonable efforts to transfer the assets of Finance to
the Bank and to dissolve Finance in accordance with the FBCA.
6. Section 7.9. Section 7.9 of the Original Agreement is hereby
amended by (i) deleting the term "$10.00" and replacing it with the term
"$9.25" and (ii) deleting the phrase ", unless amended pursuant to Section 2.7
hereof."
7. Section 8.5. Section 8.5(c) of the Original Agreement is hereby
deleted in its entirety and Section 8.5(d) of the Original Agreement is hereby
amended by deleting "(d)" preceding the text thereof and inserting, in lieu
thereof, "(c)".
8. Section 11.1(h). Section 11.1(h) of the Original Agreement is
hereby amended by deleting Section 11.1(h) in its entirety and by inserting, in
lieu thereof, the following::
(h) by the Company, if the Average Gold Banc Stock Price is less than
$9.25 and the Board of Directors of the Company determines, by a vote of
the majority of the entire Board, at any time during the period
commencing on the Determination Date and ending on March 31, 2000, to
terminate this Agreement;
9. Section 11.3. Section 11.3(c) of the Original Agreement is hereby
amended by deleting Section 11.3(c) in its entirety and by inserting, in lieu
thereof, the following:
3
(c) In the event this Agreement is terminated as a result of the
Company's failure or breach under Section 11.1(d), the Company shall
reimburse Gold Banc for its reasonable out-of-pocket expenses relating to
the Merger (including without limitation the fees and expenses of Gold
Banc's Counsel, Gold Banc's Accountants and the Gold Banc's investment
bankers and SEC fees and printing fees). This payment is not the
exclusive remedy available to Gold Banc for any such failure or breach on
the part of the Company and will not serve as liquidated damages
therefor, and such payment will be cumulative to all other remedies
available to Gold Banc under this Agreement and under applicable Law.
Notwithstanding the foregoing, if the Company's failure or breach under
Section 11.1(d) occurs solely as a result of a failure to satisfy the
financial measures set forth in Section 8.5, then the Company shall not
be obligated to reimburse Gold Banc for any expenses relating to the
Merger and shall have no other liability to Gold Banc solely as a result
of such failure.
10. Representations, Warranties and Covenants of the Company. In
consideration of the Company's agreement to take the actions set forth in this
First Amendment, Gold Banc and Acquisition Subsidiary acknowledge, agree, and
hereby confirm that neither the realization of the Bond Losses, nor the
adoption and approval of the amendments set forth in paragraph 5 of this First
Amendment, or the Company's compliance with Sections 5.22 or 5.23 hereof, will:
(a) be deemed to (i) constitute a breach of any of the covenants of
the Company set forth in the Original Agreement, or (ii) render any
representation or warranty made in the Original Agreement as untrue or
incorrect, or otherwise constitute a breach thereof, or
(b) serve as a basis for asserting a failure to satisfy any of the
conditions precedent set forth in Article VIII of the Original Agreement
or as a basis for termination under Article XI of the Original Agreement.
11. Miscellaneous. The parties to this First Amendment ratify and
approve all of the remaining terms and provisions of the Original Agreement not
specifically modified or amended in this First Amendment. In the event that any
term or provisions of this First Amendment is inconsistent with the terms and
provisions of the Original Agreement, the terms and provisions of this First
Amendment shall control.
12. Counterparts. This First Amendment may be executed in
counterparts, each of which shall be deemed an original and all of which, taken
together, shall constitute a single instrument.
13. Governing Law. This First Amendment shall be governed by and
construed and enforced in accordance with the laws of the State of Florida.
4
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first above written.
GOLD BANC CORPORATION, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Chairman of the Board
ATTEST:
/s/ Xxxxx X. Xxxxxxx
-------------------------
Name: Xxxxx X. Xxxxxxx
Title: Secretary
GOLD BANC ACQUISITION CORPORATION
XI, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
ATTEST:
/s/ Xxxxx X. Xxxxxxx
-------------------------
Name: Xxxxx X. Xxxxxxx
Title: Secretary
AMERICAN BANCSHARES, INC.
By: /s/ Xxxxx X. Xxxx
--------------------------------------------
Name: Xxxxx X. Xxxx
Title: President and Chief Executive Officer
ATTEST:
/s/ Xxxxx X. Xxxxxxxxx
-------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Secretary
5
STATE OF ____________________)
) SS.
COUNTY OF ___________________)
Be it remembered that before me, a Notary Public in and for the
aforesaid county and state, personally appeared Xxxxxxx X. Xxxxxxx, Chairman of
the Board, of Gold Banc Corporation, Inc., a Kansas corporation, and Xxxxx X.
Xxxxxxx, Secretary, who are known to me to be the same persons who executed the
foregoing First Amendment to Agreement and Plan of Reorganization, and duly
acknowledged its execution of the same this ____ day of January, 2000.
[SEAL] --------------------------------
Notary Public
My appointment or commission expires ____________________, _____.
STATE OF ____________________)
) SS.
COUNTY OF ___________________)
Be it remembered that before me, a Notary Public in and for the
aforesaid county and state, personally appeared Xxxxxxx X. Xxxxxxx, President,
of Gold Banc Acquisition Corporation XI, Inc., a Kansas corporation, and Xxxxx
X. Xxxxxxx, Secretary, who are known to me to be the same persons who executed
the foregoing First Amendment to Agreement and Plan of Reorganization, and duly
acknowledged its execution of the same this ______ day of January, 2000.
[SEAL] --------------------------------
Notary Public
My appointment or commission expires ____________________, _____.
6
STATE OF __________________)
) SS.
COUNTY OF _________________)
Be it remembered that before me, a Notary Public in and for the
aforesaid county and state, personally appeared Xxxxx X. Xxxx, President and
Chief Executive Officer of American Bancshares, Inc., a Florida corporation,
and Xxxxx X. Xxxxxxxxx, who are known to me to be the same persons who executed
the foregoing First Amendment to Agreement and Plan of Reorganization, and duly
acknowledged its execution of the same this _____ day of January, 2000.
[SEAL] --------------------------------
Notary Public
My appointment or commission expires ____________________, _____.
