================================================================================
FIRST AMENDMENT
DATED AS OF JANUARY 23, 1999
TO THE
AGREEMENT AND PLAN OF MERGER
DATED AS OF MAY 25, 1998
BY AND BETWEEN
XXXXXX BANCORP, INC.
AND
T R FINANCIAL CORP.
================================================================================
FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER
-----------------------------------------------
FIRST AMENDMENT, dated as of January 23, 1999 ("Amendment"), to the
Agreement and Plan of Merger, dated as of May 25, 1998 ("Merger Agreement"), by
and between Xxxxxx Bancorp, Inc. ("RBI") and T R Financial Corp. ("TRFC").
INTRODUCTORY STATEMENT
RBI and TRFC have entered into the Merger Agreement, and,
pursuant to Section 8.3 of the Merger Agreement, the parties thereto may from
time to time amend or modify the Merger Agreement in accordance with the
provisions of Section 8.3.
The Board of Directors of RBI and TRFC have approved and
authorized this Amendment, and all actions necessary or appropriate to make this
Amendment a valid agreement enforceable according to its terms have been taken
and the execution and delivery of this Amendment by RBI and TRFC have in all
respects been duly authorized by RBI and TRFC, respectively.
In consideration of their mutual promises and obligations
hereunder, RBI and TRFC hereby agree that, effective as of the date first
written above, the Merger Agreement shall be, and it hereby is, amended as
follows:
1. Section 4.13(a) of the Merger Agreement is amended by
replacing the word "four" with the word "five" in both places where such word
appears.
2. Section 4.13(b) of the Merger Agreement is amended by deleting
the phrase "as well as an employment agreement with each of two additional
executive officers of TRFC to be determined by RBI and TRFC" and by adding the
following sentence at the end thereof:
At the Effective Time, RBI shall enter into mutually
acceptable employment agreements with each of A. Xxxxxx Xxxx
and Xxxxxx X. Xxxxxx, with a period of employment of one year
and with the titles and base compensation set forth in Section
4.13(e) hereof.
3. A new Section 4.13(e) shall be added to the Merger Agreement,
which shall read as follows:
(e) As of the Effective Time, A. Xxxxxx Xxxx shall be
elected or appointed as the Executive Vice President and
Special Transition Officer of RBI and RBI Bank and shall
receive a base salary at an annual rate of no less than
$200,000 per year. As of the Effective Time, Xxxxxx X. Xxxxxx
shall be elected or appointed as Senior Vice President and
Director of Corporate Strategic Planning of RBI and RBI Bank
and shall receive a base salary at an annual rate of no less
than $150,000 per year.
4. Section 4.16(b)(ii) of the Merger Agreement is amended by
adding the following language at the end of the first sentence:
; PROVIDED, HOWEVER, that if the Closing Date shall occur
after December 31, 1998, the participants in the Performance
Compensation Plan and Performance Compensation Program shall
be paid the full amount due under the Plan and the Program for
1998 on or before December 31, 1998, and the participants
shall be paid an additional amount on the Closing Date equal
to the amount paid for 1998 multiplied by a fraction, the
numerator of which is the number of days in 1999 through the
Closing Date of the Merger and the denominator of which is
365. The total of such additional amounts to be paid on the
Closing Date shall not exceed, in the aggregate, $400,000, and
if the aggregate amount payable under the immediately
preceding sentence would otherwise exceed $400,000, the amount
payable to each participant shall be reduced proportionately
so that the aggregate amount so payable shall not exceed
$400,000.
5. Section 4.17 of the Merger Agreement is amended by adding the
following sentence after the last sentence of Section 4.17:
Service on the Advisory Board will, for purposes of the TRFC
Option Plans and the RBI 1997 Stock-Based Incentive Plan, be
treated as service for RBI and/or RBI Bank for all such
purposes, except to the extent such treatment would prevent
RBI's receipt of a letter from its independent certified
public accountants to the effect that the Merger shall be
qualified to be treated as a pooling-of-interests for
accounting purposes, as contemplated by Section 5.1(f) of this
Agreement.
6. A new Section 4.20 shall be added to the Merger Agreement,
which shall read as follows:
Section 4.20. TRFC EMPLOYEE STOCK OWNERSHIP PLAN.
Notwithstanding anything in this Agreement to the contrary,
the T R Financial Corp. Employee Stock Ownership Plan ("ESOP")
shall be terminated effective as of the Closing Date, after
giving effect to Section 16 of the ESOP.
7. Section 6.1(d) of the Merger Agreement is amended by replacing
"January 31, 1999" with "February 28, 1999."
8. Section 6.1(e) of the Merger Agreement is deleted in its
entirety.
-2-
9. Unless otherwise expressly defined in this Amendment or the
context otherwise requires, capitalized and other terms for which meanings are
provided in the Merger Agreement shall have such meanings when used in this
Amendment.
10. Except as set forth in this Amendment, all other terms,
covenants, provisions and conditions of the Merger Agreement shall remain in
full force and effect.
-3-
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their duly authorized officers as of the day and year first above
written.
XXXXXX BANCORP, INC.
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------------
Xxxxxx X. Xxxxxxx
Chairman of the Board, President and
Chief Executive Officer
T R FINANCIAL CORP.
By: /s/ Xxxx X. Xxxxxxxxx
----------------------------------------
Xxxx X. Xxxxxxxxx
Chairman of the Board and
Chief Executive Officer
-4-
