EXHIBIT 10.13
AGREEMENT AND PLAN OF REORGANIZATION
among
FOURTH FINANCIAL CORPORATION,
FIRST DODGE CITY BANCSHARES, INC.,
FIRST NATIONAL BANCSHARES OF DODGE CITY, INC.,
METRO BANCSHARES, INC.,
METRO BANK OF BROKEN ARROW,
FIRST NATIONAL BANK AND TRUST COMPANY IN DODGE CITY
and
THE STOCKHOLDERS OF
FIRST DODGE CITY BANCSHARES, INC.
Dated as of February 2, 1994
TABLE OF CONTENTS
Page No.
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ARTICLE I. Definitions . . . . . . . . . . . . . . . . . . 2
Section 1.1 Definitions . . . . . . . . . . . . . . . . . . 2
Section 1.2 Accounting Terms. . . . . . . . . . . . . . . . 9
Section 1.3 Use of Defined Terms. . . . . . . . . . . . . . 9
ARTICLE II. Plan of Reorganization. . . . . . . . . . . . . 9
Section 2.1 Tax-Free Reorganizations. . . . . . . . . . . . 9
Section 2.2 Agreements of Fourth. . . . . . . . . . . . . . 10
Section 2.3 Agreements of First Dodge, FNB, MBI, the Banks,
and the Stockholders. . . . . . . . . . . . . . 12
Section 2.4 The Mergers . . . . . . . . . . . . . . . . . . 17
Section 2.5 Conversion and Exchange of Shares . . . . . . . 19
Section 2.6 Advance Preparations for Bank Mergers . . . . . 22
ARTICLE III. Representations and Warranties. . . . . . . . . 22
Section 3.1 Representation and Warranties of First Dodge,
FNB, MBI, the Banks, and the Stockholders . . . 22
Section 3.2 Representations and Warranties of
Fourth. . . . . . . . . . . . . . . . . . . . . 34
ARTICLE IV. Securities Laws Matters . . . . . . . . . . . . 37
Section 4.1 Registration Statement and Proxy
Statement . . . . . . . . . . . . . . . . . . . 37
Section 4.2 State Securities Laws . . . . . . . . . . . . . 38
Section 4.3 Affiliates. . . . . . . . . . . . . . . . . . . 38
ARTICLE V. Closing Conditions. . . . . . . . . . . . . . . 39
Section 5.1 Conditions to Obligations of Fourth,
BANK IV Kansas, and BANK IV Oklahoma. . . . . . 39
Section 5.2 Conditions to Obligations of First Dodge,
FNB, MBI, the Banks, and the Stockholders . . . 41
ARTICLE VI. Effective Time. . . . . . . . . . . . . . . . . 42
ARTICLE VII. Termination of Agreement. . . . . . . . . . . . 43
Section 7.1 Mutual Consent; Absence of Stockholder
Approval; Termination Date. . . . . . . . . . . 43
Section 7.2 Election by Fourth. . . . . . . . . . . . . . . 43
Section 7.3 Election by First Dodge . . . . . . . . . . . . 44
ARTICLE VIII.Indemnification . . . . . . . . . . . . . . . . . 44
Section 8.1 Effect of Closing . . . . . . . . . . . . . . . 44
Section 8.2 General Indemnification . . . . . . . . . . . . 45
Section 8.3 Procedure . . . . . . . . . . . . . . . . . . . 45
Section 8.4 Survival of Representations and
Warranties. . . . . . . . . . . . . . . . . . . 46
Section 8.5 Several Liability of Stockholders . . . . . . . 46
Section 8.6 Indemnification Payments. . . . . . . . . . . . 47
ARTICLE IX. Miscellaneous . . . . . . . . . . . . . . . . . 47
Section 9.1 Expenses. . . . . . . . . . . . . . . . . . . . 47
Section 9.2 Affiliates' Agreements. . . . . . . . . . . . . 47
Section 9.3 Notices . . . . . . . . . . . . . . . . . . . . 47
Section 9.4 Stockholders' Agreements. . . . . . . . . . . . 47
Section 9.5 Power of Attorney . . . . . . . . . . . . . . . 48
Section 9.6 Time. . . . . . . . . . . . . . . . . . . . . . 49
Section 9.7 Law Governing . . . . . . . . . . . . . . . . . 49
Section 9.8 Entire Agreement; Amendment . . . . . . . . . . 49
Section 9.9 Successors and Assigns. . . . . . . . . . . . . 49
Section 9.10 Cover, Table of Contents, and
Headings. . . . . . . . . . . . . . . . . . . . 49
Section 9.11 Counterparts. . . . . . . . . . . . . . . . . . 49
EXHIBITS
Exhibit "A" . . . . . Form of BANK IV Kansas Merger Agreement
Exhibit "B" . . . . . Form of BANK IV Oklahoma Merger
Agreement
Exhibit "C" . . . . . Form of Fourth Merger
Agreement
Exhibit "D" . . . . . Form of Mangan, Dalton, Trenkle, Rebein
& Doll, Chartered legal opinion
Exhibit "E" . . . . . Form of Consulting and Marketing
Agreement
Exhibit "F" . . . . . Form of Foulston & Siefkin legal
opinion
Exhibit "G" . . . . . Form of Affiliate's Agreement
AGREEMENT AND PLAN OF REORGANIZATION
AGREEMENT AND PLAN OF REORGANIZATION, dated as of
February 2, 1994, among FOURTH FINANCIAL CORPORATION, a Kansas
corporation ("Fourth"); FIRST DODGE CITY BANCSHARES, INC., a Kansas
corporation ("First Dodge"); FIRST NATIONAL BANCSHARES OF DODGE
CITY, INC., a Kansas corporation ("FNB"); METRO BANCSHARES, INC.,
an Oklahoma corporation ("MBI"); FIRST NATIONAL BANK AND TRUST
COMPANY IN DODGE CITY, a national banking association ("First
National"); METRO BANK OF BROKEN ARROW, an Oklahoma banking
corporation ("Metro Bank"); and the stockholders of First Dodge
("Stockholders").
W I T N E S S E T H: That,
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WHEREAS, Fourth is a bank holding company engaged in the
business of owning and operating banks located in the States of
Kansas and Oklahoma; and
WHEREAS, Fourth desires to acquire all, and not less than
all, of the assets of First Dodge and MBI and all of the issued and
outstanding capital stock of all classes of First Dodge's and MBI's
direct and indirect subsidiaries, subject to and pursuant to the
terms of this Agreement; and
WHEREAS, each party hereto believes that the proposed
acquisition by Fourth of First Dodge, MBI, and their subsidiaries
pursuant to the terms and conditions of this Agreement would be
desirable and in their respective best interests and those of their
respective stockholders;
NOW, THEREFORE, in consideration of the mutual covenants
hereinafter set forth, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1. Definitions. The following terms as used in this
Agreement shall have the following meanings unless the context
otherwise requires:
"Affiliate" has the same meaning as in Rules 145 and 405
adopted under the Securities Act by the SEC, as the same may be
amended from time to time.
"This Agreement" refers to this Agreement and Plan of
Reorganization and all amendments hereto.
"BANK IV Kansas" means BANK IV Kansas, National
Association, a national banking association.
"BANK IV Kansas Merger" means the merger of First
National into BANK IV Kansas pursuant to the BANK IV Kansas Merger
Agreement.
"BANK IV Kansas Merger Agreement" means the Agreement to
Merge, substantially in the form of Exhibit "A" hereto, pursuant to
which the BANK IV Kansas Merger will be effected.
"BANK IV Oklahoma" means BANK IV Oklahoma, National
Association, a national banking association.
"BANK IV Oklahoma Merger" means the merger of Metro Bank
into BANK IV Oklahoma pursuant to the BANK IV Oklahoma Merger
Agreement.
"BANK IV Oklahoma Merger Agreement" means the Agreement
to Merge, substantially in the form of Exhibit "B" hereto, pursuant
to which the BANK IV Oklahoma Merger will be effected.
"Bank Holding Company Act" means the federal Bank Holding
Company Act of 1956, as amended (12 U.S.C. Section 1841 et seq.),
or any successor federal statute, and the rules and regulations of
the Board promulgated thereunder, all as the same may be in effect
at the time.
"Bank Mergers" refers collectively to the BANK IV Kansas
Merger and the BANK IV Oklahoma Merger.
"Bank Merger Agreements" refers collectively to the BANK
IV Kansas Merger Agreement and the BANK IV Oklahoma Merger
Agreement.
"Banks" refers collectively to First National and Metro
Bank and "Bank" refers to either one of them.
"Best Efforts" does not include those actions which are
not commercially reasonable under the circumstances.
"Board" means the Board of Governors of the Federal
Reserve System or any successor governmental entity which may be
granted powers currently exercised by the Board of Governors.
"Closing" means the consummation of the Mergers as
provided in this Agreement.
"Closing Price" means the closing price of Fourth Stock
on the trading day two trading days prior to the Effective Time as
reported in the Southwest Edition of The Wall Street Journal.
"Code" means the Internal Revenue Code of 1986, as
amended, and the rules and regulations promulgated thereunder, all
as the same may be in effect at the time.
"Comptroller" means the United States Comptroller of the
Currency or any successor governmental agency which may be granted
powers currently exercised by the Comptroller of the Currency.
"Corporations" refers collectively to First Dodge, FNB,
MBI, the Banks, and their respective Subsidiaries.
"Disclosure Statement" means the Disclosure Statement
prepared by First Dodge, FNB, MBI, the Banks, and the Stockholders
and delivered by them to Fourth prior to the execution and delivery
of this Agreement by Fourth.
"Effective Time" means the date and time on which the
Mergers are effective as more fully defined in this Agreement.
"Environmental, Health, and Safety Liabilities" means any
loss, cost, expense, claim, demand, liability, or obligation of
whatever kind or otherwise, based upon any Environmental, Health,
and Safety Law relating to:
(i) any environmental, health, or safety matter
or conditions, including, but not limited to, on-site or
off-site contamination, occupational safety and health,
and regulation of chemical substances or products;
(ii) fines, penalties, judgments, awards,
settlements, legal or administrative proceedings,
damages, losses, claims, demands, and response, remedial
or inspection costs and expenses arising under any
Environmental, Health, and Safety Law;
(iii) financial responsibility under any
Environmental Law for cleanup costs or corrective
actions, including for any removal, remedial or other
response actions, and for any natural resource damage;
and
(iv) any other compliance, corrective, or remedial
action required under any Environmental, Health, and
Safety Law.
"Environmental, Health, and Safety Law" means any
provision of past or present Law relating to any environmental,
health, or safety matters or conditions, Hazardous Materials,
pollution, or protection of the environment, including, but not
limited to, on-site and off-site contamination, occupational safety
and health, and regulation of chemical substances or products,
emissions, discharges, release, or threatened release of
contaminants, chemicals or industrial, toxic, radioactive, or
Hazardous Materials or wastes into the environment, or otherwise
relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport, or handling of Hazardous
Materials, pollutants, contaminants, chemicals, or industrial,
toxic, radioactive, or hazardous substances or wastes.
"ERISA" means the Employee Retirement Income Security Act
of 1974, as amended, and the rules and regulations promulgated
thereunder, all as the same may be in effect at the time.
"Federal Deposit Insurance Act" means the Federal Deposit
Insurance Act, as amended, and the rules and regulations
promulgated thereunder, all as the same may be in effect at the
time.
"FDIC" means the Federal Deposit Insurance Corporation or
any successor agency.
"Financial Statements" refers to all of the financial
statements described in clause g of Section 3.1 of this Agreement
and clause i of Section 2.3 of this Agreement.
"First Dodge" means First Dodge City Bancshares, Inc., a
Kansas corporation and a party to this Agreement.
"First Dodge Stock" means the common stock, par value
$1.00 per share, of First Dodge.
"First National" means First National Bank and Trust
Company in Dodge City, a national banking association and a party
to this Agreement.
"First National Stock" means the common stock of First
National, par value $100 per share.
"FNB" means First National Bancshares of Dodge City,
Inc., a Kansas corporation and a party to this Agreement.
"FNB Common Stock" means the common stock of FNB, par
value $1.00 per share.
"FNB Preferred Stock" means the preferred stock of FNB,
par value $1.00 per share.
"Fourth" means Fourth Financial Corporation, a Kansas
corporation and a party to this Agreement.
"Fourth Merger" means the merger of First Dodge, MBI, and
FNB into Fourth pursuant to the Fourth Merger Agreement.
"Fourth Merger Agreement" means the Agreement of Merger,
substantially in the form of Exhibit "C" hereto, pursuant to which
the Fourth Merger will be effected.
"Fourth Stock" means the common stock of Fourth, par
value $5 per share.
"GAAP" means generally accepted accounting principles,
applied on a consistent basis, set forth in Opinions of the
Accounting Principles Board of the American Institute of Certified
Public Accountants and/or in statements of the Financial Accounting
Standards Board and/or their successors which are applicable in the
circumstances in question; and the requisite that such principles
be applied on a consistent basis means that the accounting
principles observed in a current period are comparable in all
material respects to those applied in a preceding period.
"Hazardous Materials" means and includes: (i) any
hazardous substance or toxic material (excluding any lawful product
for use in the ordinary course of such Bank's business which
contains such substance or material), pollutant, contaminant, toxic
material, or hazardous waste as defined in any federal, state, or
local environmental Law; (ii) waste oil and petroleum products; and
(iii) any asbestos, asbestos containing material, urea formaldehyde
or material which contains it.
"Law" or "Laws" means all applicable statutes, laws,
ordinances, regulations, orders, writs, injunctions, or decrees of
the United States of America, any state or commonwealth, or any
subdivision thereof, or of any court or governmental department,
agency, commission, board, bureau, or other instrumentality.
"Litigation" means any proceeding, claim, lawsuit, and/or
investigation being conducted or, to the best of the knowledge of
the person or corporation making the representation, threatened
before any court or other tribunal, including, but not limited to,
proceedings, claims, lawsuits, and/or investigations, under or
pursuant to any occupational safety and health, banking, antitrust,
securities, tax, or other Laws, or under or pursuant to any
contract, agreement, or other instrument.
"MBI" means Metro Bancshares, Inc., an Oklahoma
corporation and a party to this Agreement.
"MBI Common Stock" means the common stock of MBI, par
value $.10 per share.
"MBI Preferred Stock" means the preferred stock of MBI,
par value $1.00 per share.
"Merger Agreements" collectively refers to the three
merger agreements provided for in this Agreement pursuant to which
all of the three Mergers will be accomplished.
"Mergers" collectively refers to all three of the mergers
provided for in this Agreement.
"Metro Bank" means Metro Bank of Broken Arrow, an
Oklahoma banking corporation and a party to this Agreement.
"Metro Stock" means the common stock of Metro Bank, par
value $2.50 per share.
"Occupied Properties" means the parcels of real property
owned or leased by a Bank on which such Bank conducts or has
conducted operations, all of which are described in Schedule H to
the Disclosure Statement under the caption "Bank Occupied
Properties".
"Permitted Contract" means a contract or agreement,
written or oral, between a Bank, on the one hand, and a person
other than a customer of such Bank or another financial
institution, on the other hand, which (i) was entered into in the
ordinary course of business, (ii) may be terminated by Fourth or
BANK IV Kansas or BANK IV Oklahoma, as the case may be, after the
Effective Time on no more than 30 days prior notice, (iii) provides
for a payment of no more than $5,000 in any calendar month by such
Bank, and (iv) provides for no payment upon termination in excess
of $5,000.
"Permitted Encumbrances" mean with respect to any asset:
(a) liens for taxes not past due;
(b) mechanics' and materialmen's liens for
services or materials for which payment is not past due;
and
(c) minor defects, encumbrances, and
irregularities in title which do not, in the aggregate,
materially diminish the value of a property or materially
impair the use of a property for the purposes for which
it is or may reasonably be expected to be held.
"Proxy Statement" means the joint proxy statement to be
used in connection with the special stockholders' meetings of First
Dodge, First National, and MBI to be called for the purpose of
considering and voting upon the Mergers.
"Registration Statement" means the registration statement
on Form S-4 to be filed by Fourth with the SEC pursuant to the
Securities Act in connection with the registration of the shares of
Fourth Stock to be issued in connection with the Fourth Merger and
the BANK IV Kansas Merger.
"Required Approvals" means the approval, consent, or non-
objection, as the case may be, of the Board, the Comptroller, and
all other governmental or self-governing agencies, boards,
departments, and bodies whose approval, consent, or non-action is
required in order to consummate the Mergers, and each of them, and
the retention of all of the Banks' Subsidiaries in substantially
their present form, which approvals, consents, and non-objections
shall have become final and nonappealable without any appeal or
other form of review having been initiated and as to which all
required waiting periods shall have expired.
"SEC" means the United States Securities and Exchange
Commission or any other governmental entity which may be granted
powers currently being exercised by the Securities and Exchange
Commission.
"Securities Act" means the federal Securities Act of
1933, as amended, or any successor federal statute, and the rules
and regulations promulgated thereunder, all as the same shall be in
effect at the time.
"Stockholders" refers collectively to the three persons
executing this Agreement as "Stockholders", and "Stockholder"
refers to any one of them.
"Subsidiary" means any corporation fifty percent or more
of the common stock or other form of equity of which shall be
owned, directly or indirectly, by another corporation.
1.2. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with
GAAP consistent with that applied in the preparation of the
financial statements submitted pursuant to this Agreement, and all
financial statements submitted pursuant to this Agreement shall be
prepared in all material respects in accordance with such
principles.
1.3. Use of Defined Terms. All terms defined in this
Agreement shall have the defined meanings when used in the Merger
Agreements, or any other agreement, document, or certificate made
or delivered pursuant to this Agreement, unless the context
otherwise requires.
ARTICLE II
PLAN OF REORGANIZATION
2.1. Tax-Free Reorganizations. It is the intention of
the parties that the Mergers contemplated by this Agreement and the
Merger Agreements shall qualify as tax-free reorganizations under
Section 368(a)(1)(A) and Section 368(a)(2)(D) of the Code.
2.2. Agreements of Fourth.
a. Fourth shall cause BANK IV Kansas and BANK IV
Oklahoma to execute and deliver the Bank Merger Agreement
to which it is a party. Fourth has approved and adopted
this Agreement and the Fourth Merger Agreement in
accordance with the applicable Laws of the United States
of America and the State of Kansas. Fourth, as sole
shareholder of BANK IV Kansas, shall vote all of the
stock of BANK IV Kansas in favor of the BANK IV Kansas
Merger Agreement and, together with its wholly owned
subsidiary, shall vote or cause to be voted all of the
stock of BANK IV Oklahoma in favor of the approval and
adoption of the Bank IV Oklahoma Merger Agreement.
Subject to the terms and conditions contained in this
Agreement, upon receipt of all of the Required Approvals,
Fourth shall cause BANK IV Kansas and BANK IV Oklahoma to
perform the Bank Merger Agreements.
b. Fourth shall cause all necessary action to be
taken to authorize the issuance of the number of shares
of Fourth Stock to be issued in the Fourth Merger and the
BANK IV Kansas Merger.
c. Prior to the Effective Time, Fourth,
separately and with the other parties hereto, shall use,
and cause BANK IV Kansas and BANK IV Oklahoma to use,
their Best Efforts in good faith to take or cause to be
taken as promptly as practicable all such steps as shall
be necessary to obtain all of the Required Approvals, and
shall do any and all acts and things reasonably deemed by
Fourth or the Corporations to be necessary or appropriate
in order to cause the Mergers to be consummated on the
terms provided herein and in the Merger Agreements as
promptly as practicable.
d. On or prior to the Effective Time, as
appropriate for the transactions contemplated hereby,
Fourth, BANK IV Kansas, and BANK IV Oklahoma shall
execute and deliver the Merger Agreements and the other
closing documents provided for in this Agreement, shall
take all such other actions as are required or desirable
to effect the Mergers, and shall utilize their Best
Efforts to cause all of the conditions described in
Section 5.2 of this Agreement to occur and be continuing,
and to consummate all of the other transactions
contemplated hereby.
e. Prior to the Effective Time, Fourth shall, to
the extent permitted by Law and outstanding
confidentiality agreements, give First Dodge and its
counsel and accountants full access, during normal
business hours and upon reasonable notice, to its
respective properties, books, and records, and shall
furnish First Dodge during such period with all such
information concerning its affairs as First Dodge may
reasonably request. The availability or actual delivery
of information about Fourth to First Dodge shall not
affect the covenants, representations, and warranties of
Fourth contained in this Agreement; provided, that First
Dodge shall promptly disclose to Fourth any apparent
breaches of such covenants, representations, or
warranties discovered by it prior to the Effective Time.
Except for information disclosed in the Registration
Statement or as otherwise required to be disclosed in the
course of obtaining governmental approvals, First Dodge
shall treat as confidential all such information in the
same manner as First Dodge treats similar confidential
information of its own and, if this Agreement is
terminated, First Dodge shall continue to treat all such
information obtained in such investigation and not
otherwise known to First Dodge from a source not known to
First Dodge to be under a confidential relationship with
Fourth, or already in the public domain, as confidential
and shall return such documents theretofore delivered by
Fourth to First Dodge as Fourth shall request.
f. On or before the Effective Time, BANK IV
Kansas shall replace and refinance First Dodge's existing
credit facilities with Commerce Bank, N.A. on terms no
less favorable to First Dodge than those currently
provided by Commerce Bank.
g. On or before the Effective Time, Thomas P.
Shirley and John V. Harding may each purchase from First
Dodge the policies of life insurance on their respective
lives for a cash purchase price equal to the then current
cash surrender value of the policy or policies being
purchased.
h. Fourth shall provide directors' and officers'
liability insurance coverage for the directors and
officers of the Corporations substantially similar to
that currently in effect, or continue such insurance, for
a period of two years from the Effective Time.
2.3. Agreements of First Dodge, FNB, MBI, the Banks,
and the Stockholders.
a. Prior to the consummation of the Mergers,
none of the Corporations shall, except with the prior
written consent of Fourth or as otherwise provided in
this Agreement or the Merger Agreements:
(1) Amend its articles of association,
articles of incorporation, bylaws, or other
charter documents, or make any change in its
authorized, issued, or outstanding capital stock,
grant any stock options or right to acquire
shares of any class of its capital stock or any
security convertible into any class of capital
stock, purchase, redeem, retire, or otherwise
acquire any shares of any class of its capital
stock or any security convertible into any class
of its capital stock, or agree to do any of the
foregoing;
(2) Declare, set aside, or pay any
dividend or other distribution in respect of any
class of its capital stock, except that First
Dodge, MBI, and First National shall each pay
cash dividends in an aggregate per share amount
equal to the product of (a) the cash dividends
paid on a share of Fourth Stock to Fourth
stockholders of record between November 15, 1993
and the Effective Time multiplied by (b) the
number of shares of Fourth Stock to be issued per
share of common stock of First Dodge, MBI, and
First National, respectively, in the Fourth
Merger and BANK IV Kansas Merger;
(3) Adopt, enter into, or amend materially
any employment contract or any bonus, stock
option, profit sharing, pension, retirement,
incentive, or similar employee benefit program or
arrangement or grant any salary or wage increase
except (a) normal individual increases in
compensation to employees in accordance with
established employee procedures of the
Corporations; and (b) the Fourth Financial
Corporation Acquisition Severance Schedule
previously furnished to First Dodge;
(4) Incur any indebtedness for borrowed
money (except for federal funds, repurchase
agreements entered into in the ordinary and usual
course of business, deposits received by a Bank,
endorsement, for collection or deposit, of
negotiable instruments received in the ordinary
and usual course of business, and issuance of
letters of credit by a Bank in the ordinary and
usual course of business), assume, guarantee,
endorse, or otherwise as an accommodation become
liable or responsible for obligations of any
other individual, firm, or corporation;
(5) Pay or incur any obligation or
liability, absolute or contingent, other than
liabilities incurred in the ordinary and usual
course of business of the Corporations;
(6) Except for transactions in the
ordinary and usual course of business of the
Banks or for Permitted Encumbrances, mortgage,
pledge, or subject to lien or other encumbrance
any of its properties or assets;
(7) Except for transactions in the
ordinary and usual course of business of the
Banks (including, without limitation, sales of
assets acquired by a Bank in the course of
collecting loans) sell or transfer any of its
properties or assets or cancel, release, or
assign any indebtedness owed to it or any claims
held by it;
(8) Make any investment of a capital
nature in excess of $25,000 for any one item or
group of similar items either by the purchase of
stock or securities (not including bonds
purchased in the ordinary and usual course of
business by the Banks), contributions to capital,
property transfers, or otherwise, or by the
purchase of any property or assets of any other
individual, firm, or corporation;
(9) Enter into any other agreement not in
the ordinary and usual course of business;
(10) Merge or consolidate with any other
corporation, acquire any stock (except in a
fiduciary capacity), solicit any offers for any
class of its capital stock or a substantial
portion of the assets of any of the Corporations
or, except in the ordinary course of business,
acquire any assets of any other person,
corporation, or other business organization, or
enter into any discussions with any person
concerning, or agree to do, any of the foregoing;
or
(11) Enter into any transaction or take any
action which would, if effected prior to the
Effective Time, constitute a breach of any of the
representations, warranties, or covenants
contained in this Agreement.
b. Prior to the Effective Time, each of the
Corporations shall conduct its respective business in the
ordinary and usual course as heretofore conducted,
including maintaining its current policies and procedures
regarding the review, approval, and collection of loans,
and, each of the Corporations shall use its best efforts
(1) to preserve its business and business organization
intact, (2) to keep available to Fourth, BANK IV Kansas,
and BANK IV Oklahoma the services of its present officers
and employees, (3) to preserve the good will of customers
and others having business relations with it, (4) to
maintain its properties in customary repair, working
order, and condition (reasonable wear and tear excepted),
(5) to comply with all Laws applicable to it and the
conduct of its business, (6) to keep in force at not less
than their present limits all existing policies of
insurance, (7) to make no material changes in the
customary terms and conditions upon which it does
business, (8) to duly and timely file all reports, tax
returns, and other documents required to be filed with
federal, state, local, and other authorities, and (9)
unless it is contesting the same in good faith and has
established reasonable reserves therefor, to pay when
required to be paid all taxes indicated by tax returns so
filed or otherwise lawfully levied or assessed upon it or
any of its properties and to withhold or collect and pay
to the proper governmental authorities or hold in
separate bank accounts for such payment all taxes and
other assessments which it believes in good faith to be
required by law to be so withheld or collected.
c. Prior to the Effective Time, the Corporations
shall, to the extent permitted by Law, give Fourth and
its counsel and accountants full access, during normal
business hours and upon reasonable notice, to their
respective properties, books, and records, and shall
furnish Fourth during such period with all such
information concerning their affairs as Fourth may
reasonably request. The availability or actual delivery
of information about the Corporations to Fourth shall not
affect the covenants, representations, and warranties of
the Corporations and the Stockholders contained in this
Agreement or the Merger Agreements except as provided in
Section 8.1 hereof; provided, that Fourth shall promptly
disclose to First Dodge and the Stockholders any apparent
breaches of such covenants, representations, or
warranties discovered by it prior to the Effective Time.
Except for confidential information disclosed in the
Registration Statement or as otherwise required to be
disclosed in the course of obtaining governmental
approvals, Fourth shall treat as confidential all
confidential information in the same manner as Fourth
treats similar confidential information of its own and,
if this Agreement is terminated, Fourth shall continue to
treat all such information obtained in such investigation
and not otherwise known to Fourth from a source not known
to Fourth to be under a confidential relationship with
the Corporations, or already in the public domain, as
confidential and shall return such documents theretofore
delivered by the Corporations to Fourth as the
Corporations shall request.
d. First Dodge, MBI, FNB, and the Banks shall
each cause this Agreement and the Merger Agreements to be
submitted promptly to their respective stockholders for
approval, adoption, ratification, and confirmation at
meetings to be called and held in accordance with the
applicable Law and their respective articles of
incorporation or association and bylaws. The respective
boards of directors of First Dodge, FNB, MBI, and the
Banks shall at all times prior to the Effective Time,
recommend that the Merger Agreements be approved,
ratified, and confirmed, and as of the date hereof, by
authorizing the execution of this Agreement, the boards
of directors of First Dodge, FNB, MBI, and the Banks do
hereby recommend such approval, adoption, ratification,
and confirmation.
e. First Dodge, FNB, MBI, and the Banks shall
separately and jointly with each other and with Fourth,
BANK IV Kansas, and BANK IV Oklahoma, each use its Best
Efforts in good faith to take or cause to be taken as
promptly as practicable all such steps as shall be
necessary to obtain all of the Required Approvals, and
shall do any and all acts and things reasonably deemed by
Fourth or the Corporations to be necessary or appropriate
in order to cause the Mergers to be consummated on the
terms provided herein and in the Merger Agreements as
promptly as practicable.
f. On or prior to the Effective Time, as
appropriate for the transactions contemplated hereby,
First Dodge, FNB, MBI, and the Banks shall each execute
and deliver the Merger Agreements and the other closing
documents provided for in this Agreement, shall take all
such other actions required or desirable in order to
effect the Mergers, and shall utilize their best efforts
to cause all of the conditions described in Section 5.1
of this Agreement to occur and be continuing, and to
consummate all of the other transactions contemplated
hereby.
g. On or prior to the Effective Time, First
Dodge shall exert its Best Efforts to cause First
National to enter into a contract with John V. Harding
substantially in the form of Exhibit "E" hereto.
h. The Corporations shall cooperate with Fourth
in Fourth's efforts to obtain current title evidence or
insurance, environmental assessment reports, and surveys
on such of the Corporations' real estate as Fourth may
desire.
i. First Dodge shall engage an independent
auditing firm to audit the 1993 consolidated financial
statements of First Dodge and shall deliver a copy of
same to Fourth upon its completion but no later than
February 10, 1994.
j. From the date hereof through the Effective
Time, Metro Bank and First National shall give Robert W.
Peterson, Assistant Vice President, BANK IV Kansas (or
such other person as may be designated by Fourth in
writing) at least one business day advance oral notice of
all proposed securities purchases or sales involving an
aggregate price of $250,000 or more.
2.4. The Mergers.
a. At the Effective Time, the BANK IV Kansas
Merger, the BANK IV Oklahoma Merger, and the Fourth
Merger shall occur simultaneously pursuant to the Merger
Agreements. The BANK IV Kansas Merger Agreement, the
BANK IV Oklahoma Merger Agreement, and the Fourth Merger
Agreement shall be substantially in the form of Exhibits
"A", "B", and "C" to this Agreement, respectively, with
such immaterial changes thereto as may be required or
desirable in order to obtain the required governmental
approvals and with all blanks properly completed.
b. As the result of the BANK IV Kansas Merger,
the separate existence of First National shall cease and
BANK IV Kansas, as the surviving association, shall
continue its corporate existence under the laws of the
United States; the existing articles of association of
BANK IV Kansas and the bylaws of BANK IV Kansas shall be
the articles of association and bylaws of the merged
bank; the directors and officers of BANK IV Kansas
immediately preceding the BANK IV Kansas Merger shall be
the directors and officers of the merged bank; BANK IV
Kansas shall possess all the rights, privileges, powers,
and franchises of First National; all property, real,
personal, and mixed, belonging to First National shall be
vested in and belong to BANK IV Kansas; and all rights of
creditors and depositors of First National shall continue
unimpaired.
c. As the result of the BANK IV Oklahoma Merger,
the separate existence of Metro Bank shall cease and BANK
IV Oklahoma, as the surviving association, shall continue
its corporate existence under the laws of the United
States; the existing articles of association of BANK IV
Oklahoma and the bylaws of BANK IV Oklahoma shall be the
articles of association and bylaws of the merged bank;
the directors and officers of BANK IV Oklahoma
immediately preceding the BANK IV Oklahoma Merger shall
be the directors and officers of the merged bank; BANK IV
Oklahoma shall possess all the rights, privileges,
powers, and franchises of Metro Bank; all property, real,
personal, and mixed, belonging to Metro Bank shall be
vested in and belong to BANK IV Oklahoma; and all rights
of creditors and depositors of Metro Bank shall continue
unimpaired.
d. As the result of the Fourth Merger, the
separate existence of First Dodge, FNB, and MBI shall
cease, and Fourth, as the surviving corporation, shall
continue its corporate existence under the laws of the
State of Kansas; the articles of incorporation and the
bylaws of Fourth in effect at the Effective Time shall be
the articles of incorporation and bylaws of the surviving
corporation until further amended as provided by Law; the
directors and officers of Fourth immediately preceding
the Fourth Merger shall be the directors and officers of
the surviving corporation; Fourth shall possess all the
rights, privileges, powers, and franchises of a public as
well as of a private nature of First Dodge, MBI, and FNB;
all property, real, personal, and mixed, belonging to
First Dodge, FNB, and MBI shall be vested in and belong
to Fourth; and all rights of creditors of First Dodge,
MBI, and FNB shall continue unimpaired.
e. From time to time as and when requested by
Fourth, BANK IV Kansas, or BANK IV Oklahoma, their
respective successors or assigns, the officers and
directors of the Banks, First Dodge, FNB, and MBI last in
office shall execute and deliver such deeds and other
instruments and shall take or cause to be taken such
other actions as shall be necessary or desirable to vest
or perfect in or to confirm of record or otherwise BANK
IV Kansas's, BANK IV Oklahoma's, or Fourth's title to,
and possession of, all the property, interests, assets,
rights, privileges, immunities, powers, franchises, and
authority of the Banks, First Dodge, FNB, MBI, or any of
them, and otherwise to carry out the purposes of this
Agreement; provided, that no such officer or director
shall thereby incur any expense or liability.
2.5. Conversion and Exchange of Shares.
a. Fourth Merger. The manner of converting or
exchanging the shares of capital stock of First Dodge,
FNB, and MBI outstanding at the Effective Time shall be
as follows:
(1) The Fourth Merger shall effect no
change in any of the then issued and outstanding
shares of Fourth Stock and none of Fourth's then
issued and outstanding shares of Fourth Stock
shall be converted or exchanged as the result of
the Fourth Merger.
(2) At the Effective Time, upon
consummation of the Fourth Merger, each issued
and outstanding share of First Dodge Stock and
each issued and outstanding share of MBI Common
Stock not owned by First Dodge shall cease to be
an issued and existing share, and each such share
shall automatically be converted into and
exchanged for a number of shares of Fourth Stock
as is set forth in the following table:
No. of Shares
Class of Stock of Fourth Stock
-------------- ---------------
First Dodge Stock 112.42
MBI Common Stock 0.30
(3) No separate amounts are being paid
with respect to the FNB Common Stock or MBI
Preferred Stock (all of which is owned by First
Dodge) or the MBI Common Stock owned by First
Dodge as their respective values are fully
reflected in the number of shares of Fourth Stock
being issued with respect to First Dodge Stock in
the Fourth Merger.
b. Bank Mergers. The manner of converting or
exchanging the shares of capital stock of the Banks into
capital stock of BANK IV Kansas or BANK IV Oklahoma, par
value $5 per share, shall be as follows:
(1) At the Effective Time, upon
consummation of the Bank Mergers each issued and
outstanding share of First National Stock shall
cease to be an issued and existing share, and
each such share not owned of record by FNB shall
automatically be converted into and exchanged for
the right to receive 95.92 shares of Fourth
Stock.
(2) No separate payment will be made with
respect to First National Stock owned by FNB or
to Metro Bank Stock, all of which is owned by
MBI, as their values are fully reflected in the
number of shares of Fourth Stock being issued
with respect to First Dodge Stock and MBI Stock
in the Fourth Merger.
(3) The 6,000 shares of First National
Stock issued and outstanding at the Effective
Time (consisting of 733 shares to be issued to
replace the shares being cancelled pursuant to
clause (l) above and the 5,267 shares then owned
of record by FNB) shall automatically be and
become an aggregate of 120,000 shares of capital
stock of BANK IV Kansas, par value $5 per share,
all of which shall be issued to and owned by
Fourth.
(4) The 305,000 shares of Metro Stock
issued and outstanding at the Effective Time,
shall automatically be and become an aggregate of
152,500 shares of capital stock of BANK IV
Oklahoma, par value $5 per share, all of which
shall be issued to and owned by Fourth.
c. Adjustment for Changes in Fourth's
Capitalization. In the event that between the date of
this Agreement and the Effective Time Fourth shall take
any action to subdivide its outstanding shares of common
stock into a greater number of shares, or to combine its
outstanding shares of common stock into a smaller number
of shares, or to declare a stock dividend on its
outstanding common stock, or to effect a reclassification
of its common stock, then the number and kind of shares
of Fourth Stock which the stockholders of First Dodge,
First National, and MBI shall be entitled to receive in
the Mergers shall be adjusted equitably to prevent
dilution or enlargement of the proportionate common stock
interests in Fourth to be received by them.
d. Stock Certificates. After the Effective Time
and until surrendered for exchange, each outstanding
stock certificate which prior to the Effective Time
represented First Dodge Stock, MBI Common Stock not owned
by First Dodge, or First National Stock not owned of
record by FNB, shall be deemed for all corporate purposes
to represent the right to receive the number of shares of
Fourth Stock into which the shares of stock have been so
converted; provided, that in any matters relating to the
shares represented by such stock certificates, Fourth,
BANK IV Kansas, and BANK IV Oklahoma may rely exclusively
upon the record of stockholders maintained by First
Dodge, MBI, or First National containing the names and
addresses of all stockholders of record at the Effective
Time. Unless and until such outstanding stock
certificates formerly representing such shares are so
surrendered, no dividend payable to holders of Fourth
Stock, as of any date on or subsequent to the Effective
Time, shall be paid to the holder of such outstanding
certificates in respect thereof. Upon surrender of such
outstanding certificates (or, in case of lost
certificates, upon receipt of a surety bond or other form
of indemnification which is satisfactory to Fourth),
however, the former First Dodge, MBI, or First National
stockholder shall receive a certificate evidencing the
shares of Fourth Stock to which such stockholder is
entitled plus the accrued dividends on such stock from
the Effective Time, without interest.
e. Fractional Shares. No fractional shares of
Fourth Stock will be issued. Instead, upon surrender of
First Dodge, MBI, or First National stock certificates
(or in the case of lost certificates, a surety bond or
other form of indemnification which is satisfactory to
Fourth), Fourth will pay, or cause to be paid, to the
holder thereof the value of the fractional interest to
which the holder thereof would otherwise be entitled,
based upon the Closing Price.
f. Exchange Procedure. Promptly after the
Effective Time, Fourth will send a notice and transmittal
form to each record holder of outstanding certificates
that immediately prior to the Effective Time evidenced
shares of First Dodge Stock, MBI Common Stock not owned
of record by First Dodge, or First National Stock not
owned of record by FNB, advising such stockholder of the
effectiveness of the Mergers and the procedures for
surrendering to Fourth such certificates in exchange for
certificates representing the number of shares of Fourth
Stock into which the shares of such capital stock
represented by such certificates shall have been
converted.
2.6. Advance Preparations for Bank Mergers. The
parties acknowledge that Fourth anticipates it will be desirable to
take various actions immediately following the Effective Time to
maximize the future profitability of BANK IV Kansas and BANK IV
Oklahoma, and that, as future stockholders of Fourth, the First
Dodge, MBI, FNB, and Bank stockholders will all benefit from such
actions to the extent they are successful. Accordingly, First
National and Metro Bank agree to cooperate with Fourth in making
advance plans and preparations for post-closing operations,
including, without limitation cooperation with employees of Fourth
in planning for post-closing operations.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1. Representations and Warranties of First Dodge,
FNB, MBI, the Banks, and the Stockholders. Except as expressly
disclosed in the Disclosure Statement, First Dodge, FNB, MBI, the
Banks, and the Stockholders jointly and severally represent and
warrant to Fourth as follows:
a. Organization, Good Standing, and Authority.
Each of First Dodge, FNB, and MBI is a bank holding
company duly registered pursuant to the Bank Holding
Company Act. Each of the Corporations is a corporation
or bank duly organized, validly existing, and in good
standing under the laws of the jurisdiction of its
incorporation, and each has all requisite corporate power
and authority to conduct its business as it is now
conducted, to own its properties and assets, and to lease
properties used in its business. The only Subsidiaries
of First National are First Ag Credit Corporation and
Southwest, Inc., both of which are Kansas corporations.
The only Subsidiary of FNB is First National which has
the two Subsidiaries described above. Metro Bank has no
Subsidiaries. The only Subsidiary of MBI is Metro Bank.
The only Subsidiaries of First Dodge are FNB and its
Subsidiaries and MBI and its Subsidiary. None of the
Corporations is in violation of its charter documents or
bylaws, or of any applicable Law in any material respect.
The deposits of both of the Banks are insured by the
Federal Deposit Insurance Corporation to the extent
provided by the Federal Deposit Insurance Act and each of
the Banks has paid all assessments and filed all reports
required to be filed under the Federal Deposit Insurance
Act.
b. Binding Obligations; Due Authorization. This
Agreement constitutes, and the Merger Agreements will
upon execution and delivery constitute, subject only to
the approval and adoption thereof by the stockholders of
First Dodge, FNB, MBI, and the Banks, valid and binding
obligations of First Dodge, FNB, MBI, each of the Banks,
and each Stockholder, enforceable against each of such
parties in accordance with the respective terms of such
documents, except as limited by applicable bankruptcy,
insolvency, reorganization, moratorium, or other similar
Laws and equitable principles affecting creditors' rights
generally. The execution, delivery, and performance of
this Agreement, the Merger Agreements, and the
transactions contemplated by all such agreements have
been duly authorized by the respective boards of
directors of First Dodge, FNB, MBI, and each Bank.
c. Absence of Default. None of the execution or
the delivery of this Agreement and the Merger Agreements,
the consummation of the transactions contemplated hereby
or thereby, or the fulfillment of the terms hereof or
thereof, will (1) conflict with, or result in a breach of
the terms, conditions, or provisions of, or constitute a
default under the charter documents or bylaws of any of
the Corporations or under any agreement or instrument
under which any of the Corporations or any of the
Stockholders is obligated, or (2) violate any Law to
which any of the Corporations or any of the Stockholders
is subject.
d. Capitalization. First Dodge is authorized to
issue 100,000 shares of First Dodge Stock, par value
$1.00 per share, of which 5,254.5 shares are validly
issued and outstanding. FNB is authorized to issue: (i)
100,000 shares of FNB Common Stock, par value $1.00 per
share, of which 5,254.50 shares are validly issued and
outstanding; and (ii) 1,500,000 shares of FNB Preferred
Stock, par value $1.00 per share, none of which is issued
and outstanding. MBI is authorized to issue: (i)
1,000,000 shares of MBI Common Stock, par value $.10 per
share, of which 905,000 are validly issued, 904,795
shares are validly issued and outstanding, and 205 shares
are held as treasury shares; and (ii) 3,000,000 shares of
MBI Preferred Stock, par value $1.00 per share, of which
1,915,333 shares are validly issued and outstanding.
Metro Bank is authorized to issue 340,000 shares of Metro
Stock, par value $2.50 per share, of which 305,000 shares
are validly issued and outstanding. First National is
authorized to issue 6,000 shares of First National Stock,
par value $100 per share, all of which are validly issued
and outstanding. First Dodge owns all of the issued and
outstanding FNB Common Stock and MBI Preferred Stock and
900,795 shares of MBI Common Stock, all of which are free
and clear of all encumbrances, liens, security interests,
and claims whatsoever except for the pledge of such
shares to Commerce Bank, N.A. FNB owns 5,267 shares of
First National Stock, free and clear of all encumbrances,
liens, security interests, and claims whatsoever. MBI
owns all of the issued and outstanding shares of Metro
Stock, free and clear of all encumbrances, liens,
security interests, and claims whatsoever.
e. Charter Documents. True and correct copies
of the charter documents and bylaws of each of the
Corporations, with all amendments thereto, are included
in the Disclosure Statement as Exhibits "E-1" to "E-14."
f. Options, Warrants, and Other Rights. None of
the Corporations has outstanding any options, warrants,
or rights of any kind requiring it to sell or issue to
anyone any capital stock of any class and none of the
Corporations has agreed to issue, sell, or purchase any
additional shares of any class of its capital stock.
g. Financial Statements. Included in the
Disclosure Statement as Exhibits "G-1" through "G-4" are
true and complete copies of the following financial
statements, all of which have been prepared in accordance
with GAAP and all applicable regulatory accounting
principles consistently followed throughout the periods
indicated and fairly present in all material respects the
financial condition of the Corporations as of the dates
and for the periods indicated, subject in the case of
interim financial statements, to normal recurring year-
end adjustments (the effect of which will not,
individually or in the aggregate, be materially adverse)
and the absence of notes (which if presented would not
differ materially from those included in the most recent
year-end financial statements):
(1) Audited Consolidated Financial
Statements of First National as of December 31,
1992 and 1991, and for the fiscal years then
ended, with auditors' report thereon and notes
thereto, which have been examined by Smoll,
Banning & Neier, Chtd, independent certified
public accountants;
(2) Unaudited financial statements of each
of the Corporations, as of September 30, 1993 and
1992 and for the periods then ended;
(3) Consolidated Reports of Condition and
Income as of March 31, June 30, September 30,
and December 31, 1993, as filed by the Banks with
the Comptroller and the FDIC; and
(4) Annual Reports on Form FR Y-9 filed by
First Dodge, FNB, and MBI with the Board for the
years ended December 31, 1992 and 1991.
As soon as practicable between the date hereof and
the Effective Time, the Corporations will deliver to
Fourth copies of monthly operating statements and monthly
securities inventory reports of the Banks and of all
reports filed by either of them with any regulatory
agencies. The books of account of each of the
Corporations and each of the Financial Statements fairly
and correctly reflect and, when delivered, will reflect
in all material respects in accordance with GAAP and all
applicable rules and regulations of regulatory agencies
applied on a consistent basis, the respective incomes,
expenses, assets, and liabilities, absolute or
contingent, of each of the Corporations (except for the
absence in the monthly operating statements of the Banks
of certain information and footnotes normally included in
financial statements prepared in accordance with GAAP
which in the aggregate would not be materially adverse).
There have been no material adverse changes in the
financial condition of any of the Corporations from
December 31, 1992, other than changes made in the usual
and ordinary conduct of the businesses of the
Corporations, none of which has been or will be
materially adverse and all of which have been or will be
recorded in the books of account of the Corporations; and
except as specifically permitted by this Agreement, there
have been no material adverse changes in the respective
businesses, assets, properties, or liabilities, absolute
or contingent, of any of the Corporations, or in their
respective condition, financial or otherwise, from the
date of the most recent of the Financial Statements that
has been delivered to Fourth on the date hereof other
than (i) changes occurring in the usual and ordinary
conduct of the business of the Corporations, none of
which has been or will be materially adverse and all of
which have been or will be recorded in the respective
books of account of the Corporations, and (ii) resulting
from action required or permitted by this Agreement to be
taken by any of the Corporations. To the extent required
by GAAP, all contingent liabilities of any of the
Corporations, other than letters of credit and similar
obligations of the Banks incurred in the ordinary course
of business, are described in or reserved against in the
Financial Statements listed above.
h. Properties. First Dodge, FNB, MBI, and First
National's Subsidiaries do not own or lease any real
property. Exhibit "H" to the Disclosure Statement is a
complete list of all real estate owned or leased by
either Bank. Each Bank has good and marketable title in
fee simple to all of the real property shown on its book
as being owned by it, free and clear of all liens,
encumbrances, and charges, except for those exceptions
described on Exhibit "H" to the Disclosure Statement and
Permitted Encumbrances. All leases of real property to
which a Bank is a party as lessee, a true and complete
copy of each of which with all amendments thereto is
included in Exhibit "H" to the Disclosure Statement, are
valid and enforceable in accordance with their respective
terms except as enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium, or similar Laws
and equitable principles affecting creditors' rights
generally, and there has been no material default by any
party thereto. No zoning ordinance prohibits, interferes
with, or materially impairs the usefulness of the
Occupied Properties; and all the premises on the Occupied
Properties or leased by a Bank are in good operating
condition and repair, normal wear and tear excepted.
i. Personal Property. Either First National or
Metro Bank has good and merchantable title to all of the
machinery, equipment, materials, supplies, and other
property of every kind, tangible or intangible, contained
in its offices and other facilities or shown as assets in
its records and books of account, free and clear of all
liens, encumbrances, and charges except for leasehold
improvements to leased premises and for personal property
held under the leases described on Exhibit "I" to the
Disclosure Statement. Exhibit "I" to the Disclosure
Statement is a complete list of all leases of personal
property to which either of the Banks is a party. All
leases of personal property to which either of the Banks
is a party as lessee, true and complete copies of each
which with all amendments thereto are included in Exhibit
"I" to the Disclosure Statement, are valid and
enforceable in accordance with their terms, and there has
been no material default by any party thereto. All of
such personal property owned or leased by either of the
Banks is in good operating condition, normal wear and
tear excepted.
j. Taxes. The Corporations have all filed all
tax returns and reports required to be filed with the
United States Government and with all states and
political subdivisions thereof where any such returns or
reports are required to be filed and where the failure to
file such return or report would subject any of the
Corporations to any material liability or penalty. All
taxes imposed by the United States, or by any foreign
country, or by any state, municipality, subdivision, or
instrumentality of the United States or of any foreign
country, or by any other taxing authority, which are due
and payable by any of the Corporations have been paid in
full or adequately provided for by reserves shown in the
records and books of account of the Corporations and in
the Financial Statements. No extension of time for the
assessment of deficiencies for any years is in effect.
None of the Corporations has any knowledge of any
unassessed tax deficiency proposed or threatened against
any of them.
k. Contracts. Other than Permitted Contracts
and agreements with customers of the Banks and with
financial institutions entered into by the Banks in the
ordinary course of their banking businesses, attached to
the Disclosure Statement as Exhibit "K" is a list of all
material contracts and other agreements and arrangements,
both written and oral, to which any of the Corporations
is a party, which affect or pertain to the operation of
their respective businesses, and which involve future
payments by any of the Corporations of $10,000 or more
(the "Scheduled Agreements"). All parties to the
Scheduled Agreements have in all material respects
performed, and are in good standing with respect to, all
the material obligations required to be performed under
all such contracts and other agreements and arrangements,
and no obligation with respect thereto is overdue. All
of the agreements of the Corporations, including without
limitation the agreements disclosed in writing pursuant
to this clause k, are valid, binding, and enforceable in
accordance with their terms, except as limited by
applicable bankruptcy, insolvency, reorganization,
moratorium, or similar Laws and equitable principles
affecting creditors' rights generally. Except as
otherwise noted in Exhibit "K" to the Disclosure
Statement, no contract, lease, or other agreement or
arrangement to which any of the Corporations is a party
or as to which any of any of their assets is subject
requires the consent of any third party in connection
with this Agreement or any of the Mergers. The
Corporations are not in default under any of the
Scheduled Agreements; the Corporations are not aware of
any default by any other party to any of the Scheduled
Agreements or any claim by any other party that the
Corporations are in default under any of the Scheduled
Agreements. Except for Permitted Contracts and except as
set forth in Exhibit "K" to the Disclosure Statement,
none of the Corporations is a party to:
(1) Any contract for the purchase or sale
of any materials, services, or supplies which
contains any escalator, renegotiation, or
redetermination clause or which commits it for a
fixed term;
(2) Any contract of employment with any
officer or employee not terminable at will
without liability on account of such termination;
(3) Any management or consultation
agreement not terminable at will without
liability on account of such termination;
(4) Any license, royalty, or union
agreement, or loan agreement in which a
Corporation is the borrower;
(5) Any contract, accepted order, or
commitment for the purchase or sale of materials,
services, or supplies having a total remaining
contract price in excess of $10,000;
(6) Any contract containing any
restrictions on any party thereto competing with
any Corporation or any other person;
(7) Any other agreement which materially
affects the business, properties, or assets of
any of the Corporations, or which was entered
into other than in the ordinary and usual course
of business; or
(8) Any letter of credit or commitment to
make any loan or group of loans to related
parties in an amount in excess of $100,000.
None of the Corporations' agreements described in this
clause k other than loans made in the ordinary course is
reasonably anticipated by any of the Corporations or any
Stockholder to result in a material loss to any of the
Corporations.
l. Labor Relations; Employees; ERISA. None of
the Corporations is a party to or affected by any
collective bargaining agreement or employment agreement,
nor is any Corporation a party to any pending or
threatened labor dispute, organizational efforts, or
labor negotiations. Each of the Corporations has
complied with all applicable Laws relating to the
employment of labor, including, but not limited to, the
provisions thereof relating to wages, hours, collective
bargaining, payment of social security taxes, and equal
employment opportunity, the violation of which would have
a materially adverse impact on their respective
businesses. None of the Corporations is liable for any
arrears of wages or any taxes or penalties for failure to
comply with any of the foregoing. Except for First
National's profit sharing plan (the "Profit Sharing
Plan"), and Metro Bank's 401K Plan (the "401K Plan") true
and complete copies of each of which together with all
amendments thereto are attached as Exhibits L-1 and L-2,
respectively, to the Disclosure Statement, none of the
Corporations has any written or oral retirement, pension,
profit sharing, stock option, bonus, or other employee
benefit plan or practice other than group health, life,
and accident insurance. The Profit Sharing Plan and the
401K Plan are both in material compliance with ERISA and
the Code and each is a "qualified plan" within the
meaning of Section 401(a) of the Code and each is the
subject of a currently effective written determination of
the Internal Revenue Service to such effect and to the
further effect that the trust thereunder is a trust
exempt from tax under Section 501 of the Code. The
Corporations know of no facts or circumstances that could
adversely affect the status of either such plan as such
a plan or such trust as such a trust. All accrued
contributions and other payments to be made by First
National under the Profit Sharing Plan or by Metro Bank
under the 401K Plan have been made or reserves adequate
for such purposes have been set aside therefor. None of
the Corporations has violated any of the provisions of
ERISA, and none of them has engaged in any "prohibited
transactions" as such term is defined in Section 406 of
ERISA. Each of the Corporations has complied with all
applicable notice requirements and has provided group
health care continuation coverage under Section 4980B of
the Code and/or any other applicable Laws. There is no
employee of any of the Corporations whose employment is
not terminable at will without severance pay or other
penalty or compensation.
m. Government Authorizations. Each of the
Corporations has all permits, charters, licenses, orders,
and approvals of every federal, state, local, or foreign
governmental or regulatory body required in order to
permit it to carry on its business substantially as
presently conducted. All such licenses, permits,
charters, orders, and approvals are in full force and
effect, and none of the Corporations knows of any
threatened suspension or cancellation of any of them and
none of the Corporations knows of any fact or
circumstance that will interfere with or adversely affect
the renewal of any of such licenses, permits, charters,
orders, or approvals; and none of such permits, charters,
licenses, orders, and approvals will be affected by the
consummation of the transactions contemplated by this
Agreement.
n. Insurance. Exhibit "N" to the Disclosure
Statement is a complete list of all insurance policies
presently in effect and in effect during the past three
years. All the insurance policies and bonds currently
maintained by any of the Corporations are in full force
and effect.
o. Litigation. Exhibit "O" to the Disclosure
Statement contains a true and complete list and brief
description of all pending or, to the knowledge of any of
the Corporations or Stockholders, threatened Litigation
to which any of the Corporations is or would be a party
or to which any of their assets is or would be subject.
Except as described on Exhibit "O" to the Disclosure
Statement, none of the Corporations is a party to any
Litigation other than routine litigation commenced by a
Bank to enforce obligations of borrowers in which no
counterclaims for any material amounts of money have been
asserted or, to the knowledge of any of the Corporations,
threatened.
p. Brokers or Finders. No broker, agent,
finder, consultant, or other party (other than legal,
accounting, and financial advisors) has been retained by
any of the Corporations or any Stockholder or is entitled
to be paid based upon any agreements, arrangements, or
understandings made by any of the Corporations or any
Stockholder in connection with any of the transactions
contemplated by this Agreement or the Merger Agreements.
q. SEC Filings To Be Accurate. The information
pertaining to the Corporations and Stockholders which has
been or will be furnished to Fourth by or on behalf of
any of the Corporations or Stockholders for inclusion in
the Registration Statement or the Proxy Statement, and
the information pertaining to any of the Corporations or
Stockholders which will appear in the Registration
Statement or the Proxy Statement, in the form filed with
the SEC, will not contain any untrue statement of any
material fact or omit to state any material fact required
to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which
they are made, not misleading. The Corporations and
Stockholders shall promptly advise Fourth in writing if
prior to the Effective Time any of them shall obtain
knowledge of any fact that would make it necessary to
amend the Registration Statement or the Proxy Statement,
or to supplement the prospectus contained in the
Registration Statement, in order to make the statements
therein not misleading or to comply with applicable Law.
r. Stockholder Matters. Exhibit "R" to the
Disclosure Statement accurately sets forth after the name
of each Stockholder the number of shares of First Dodge
Stock, MBI Common Stock, and First National Stock
beneficially owned by such Stockholder, in each case free
and clear of all liens, encumbrances, claims, and
equities which would impair the right of the record owner
to vote such shares in favor of the Fourth Merger or the
BANK IV Kansas Merger, and the number of shares of Fourth
Stock to be received in the Fourth Merger and the BANK IV
Kansas Merger; provided, however, that no Stockholder
makes any warranty as to the shares owned by any other
Stockholder. None of the Corporations is a party and
none of the Stockholders is a party to any agreement
which in any way restricts the right of any stockholder
of any of the Corporations to vote on this Agreement or
the Merger Agreements or consummate the transactions
contemplated therein. There is no plan or intention by
the Stockholders, and to the best of the knowledge of
First Dodge, FNB, MBI, Metro Bank or First National,
there is no plan or intention on the part of the
remaining stockholders of MBI or First National to sell,
exchange, or otherwise dispose of a number of shares of
Fourth Stock received in any of the Mergers that would
reduce the First Dodge, MBI, and First National
stockholders' ownership of Fourth Stock to a number of
shares having a value, as of the Effective Time, of less
than 50 percent of the value of all of the capital stock
of all of such corporations outstanding immediately
prior to the Effective Time. Solely for purposes of the
preceding sentence, an amount of Fourth Stock equal to
(i) the value of First Dodge Stock, First National Stock,
and MBI Common Stock surrendered by persons exercising
dissenters' rights, (ii) the value of stock surrendered
for cash in lieu of fractional shares of Fourth Stock,
and (iii) the value of shares of Fourth Stock held by
stockholders prior to the Mergers and otherwise sold,
redeemed, or disposed of prior or subsequent to the
Effective Time, shall be deemed received by such
stockholders in the Mergers and sold, exchanged, or
disposed of immediately thereafter.
s. Environmental Compliance. Each of the Banks
is in material compliance with all relevant
Environmental, Health, and Safety Laws and none of the
Corporations has any material Environmental, Health, and
Safety Liabilities. Except as described in Exhibit "S"
to the Disclosure Statement, none of the Occupied
Properties and, to the knowledge of First Dodge, FNB,
MBI, and the Banks, no real or personal property owned or
leased by either Bank at any time is now being used or
has at any time in the past ever been used for the
storage (whether permanent or temporary), disposal, or
handling of any Hazardous Materials, nor are any
Hazardous Materials located in, on, under, or at any
real or personal property owned, leased, or used by a
Bank. Neither Stockholders nor any of the Corporations
have received any notice of a material violation of any
Environmental, Health, and Safety Law, or any notice of
any material potential Environmental, Health, and Safety
Liabilities with respect to any properties or assets in
which any of the Corporations has or has had any
interest.
t. Employment of Aliens. The Banks are in
material compliance with the Immigration and Control Act
of 1986.
u. Notes and Leases. All promissory notes and
leases owned by the Banks at the Effective Time will
represent bona fide indebtedness or obligations to such
Bank and are and will be fully enforceable in accordance
with their terms without valid set-offs or counterclaims,
except as limited by applicable bankruptcy, insolvency,
reorganization, moratorium, or similar Laws and equitable
principles affecting creditors' rights generally;
provided, however, no representation or warranty is made
in this Agreement as to the collectibility of any such
note or lease.
v. No Misrepresentations. Neither this
Agreement, the Financial Statements, nor any other
letter, certificate, statement, or document furnished or
to be furnished to Fourth by or on behalf of the
Corporations, the Stockholders, or any of them, pursuant
to or in connection with this Agreement and the
transactions contemplated hereby, when considered in
conjunction with all other information and documents
furnished to Fourth hereunder, contains or will contain
any misstatement of a material fact or omits or will omit
to state a material fact necessary to make the statements
contained herein or therein not misleading.
w. Updating of Representations and Warranties.
Between the date hereof and the Effective Time, First
Dodge, FNB, MBI, the Banks, and the Stockholders will
promptly disclose to Fourth in writing any information of
which any of them has actual knowledge (1) concerning any
event that would render any of their representations or
warranties contained in this Agreement untrue if made as
to the date of such event, (2) which renders any
information set forth in this Agreement or the Disclosure
Statement no longer correct in all material respects, or
(3) which arises after the date hereof and which would
have been required to be included in this Agreement or
the Disclosure Statement if such information had existed
on the date hereof.
3.2. Representations and Warranties of Fourth. Fourth
represents and warrants to First Dodge, FNB, MBI, the Banks, and
the Stockholders, and each of them, as follows:
a. Organization, Good Standing, and Authority.
Fourth is a bank holding company duly registered pursuant
to the Bank Holding Company Act. Fourth and each of its
banking Subsidiaries is a corporation or bank duly
organized, validly existing, and in good standing under
the laws of the jurisdiction of its incorporation, and
each has all requisite corporate power and authority to
conduct its business as it is now conducted, to own its
properties and assets, and to lease properties used in
its business. None of Fourth or any of its banking
Subsidiaries is in violation of its charter documents or
bylaws, or of any applicable Law in any material respect,
or in default in any material respect under any material
agreement, indenture, lease, or other document to which
it is a party or by which it is bound. All of Fourth's
issued and outstanding equity securities are duly
registered under the Federal Securities Exchange Act of
1934, as amended. Shares of Fourth Stock are eligible
for trading in the National Market System of NASDAQ.
b. Binding Obligations; Due Authorization. This
Agreement constitutes, and the Merger Agreements will
upon execution and delivery constitute, valid and binding
obligations of Fourth and, in the case of the Bank Merger
Agreements, BANK IV Oklahoma and BANK IV Kansas, as the
case may be, enforceable against them in accordance with
the terms of such documents, except as limited by
applicable bankruptcy, insolvency, reorganization,
moratorium, or other similar laws and equitable
principles affecting creditors' rights generally. The
execution, delivery, and performance of this Agreement
and the Merger Agreements, and the transactions
contemplated by all such agreements have been duly
authorized by the respective boards of directors of
Fourth, BANK IV Kansas, and BANK IV Oklahoma. No
approval of the holders of outstanding Fourth Stock or
other voting securities of Fourth is necessary to
consummate the Mergers.
c. Absence of Default. None of the execution or
the delivery of this Agreement and the Merger Agreements,
the consummation of the transactions contemplated hereby
or thereby, or the fulfillment of the terms hereof or
thereof, will (1) conflict with, or result in a breach of
the terms, conditions, or provisions of, or constitute a
default under the charter documents or bylaws of Fourth
or any of its banking Subsidiaries or under any agreement
or instrument under which Fourth or any of its banking
Subsidiaries is obligated, or (2) violate any Law to
which any of them is subject.
d. Disclosure Materials Delivered by Fourth.
Fourth has previously delivered to First Dodge its Annual
Report on Form 10-K for the year ended December 31, 1992,
and its Quarterly Reports on Form 10-Q for the quarters
ended March 31, June 30, and September 30, 1993, in each
case with exhibits thereto, as filed with the SEC, and a
copy of the definitive proxy statement used by Fourth in
connection with its 1993 annual stockholders' meeting.
All of the financial statements contained in such
documents have been prepared in accordance with GAAP
applied on a consistent basis. The books of account of
Fourth and each of its banking Subsidiaries fairly and
correctly reflect, in accordance with GAAP applied on a
consistent basis, the respective incomes, expenses,
assets, and liabilities, absolute and contingent, of
Fourth and each of its banking Subsidiaries. There have
been no material adverse changes in the consolidated
financial condition of Fourth from September 30, 1993.
e. Brokers or Finders. No broker, agent,
finder, consultant, or other party (other than legal and
accounting advisors) has been retained by Fourth or is
entitled to be paid based upon any agreements,
arrangements, or understandings made by Fourth in
connection with any of the transactions contemplated by
this Agreement or the Merger Agreements.
f. SEC Filings to be Accurate. The information
pertaining to Fourth which has been or will be furnished
by or on behalf of Fourth and its banking Subsidiaries or
its management for inclusion in the Registration
Statement or the Proxy Statement, and the information
pertaining to Fourth which will appear in the
Registration Statement or the Proxy Statement, in the
form filed with the SEC, will contain no untrue statement
of any material fact and will not omit to state any
material fact required to be stated therein or necessary
to make the statements therein, in the light of the
circumstances under which they are made, not misleading.
Fourth shall promptly advise First Dodge in writing if
prior to the Effective Time it shall obtain knowledge of
any fact that would make it necessary to amend the
Registration Statement or the Proxy Statement, or to
supplement the prospectus contained in the Registration
Statement, in order to make the statements therein not
misleading or to comply with applicable Law.
g. No Misrepresentations. Neither this
Agreement, the disclosure documents described in clause
"d" of this Section 3.2, nor any other letter,
certificate, statement, or document furnished or to be
furnished to First Dodge, FNB, MBI, the Banks, or the
Stockholders by or on behalf of Fourth pursuant to or in
connection with this Agreement and the transactions
contemplated hereby contains or will contain any
misstatement of a material fact or omits or will omit to
state a material fact necessary to make the statements
contained herein or therein not misleading.
h. Capitalization. Fourth is authorized to
issue (i) 50,000,000 shares of common stock, par value $5
per share, of which 26,352,215 shares were issued and
outstanding on December 31, 1993, (ii) 250,000 shares of
Class A 7% Cumulative Convertible Preferred Stock, par
value $100 per share, all of which are issued and
outstanding, and (iii) 5,000,000 shares of Class B
Preferred Stock, without par value, none of which have
been issued. The shares of Fourth Stock to be issued in
the Mergers will be duly and validly issued, fully paid,
and nonassessable, and not issued in violation of any
preemptive rights or any Laws applicable thereto.
i. Updating of Representations and Warranties.
Between the date hereof and the Effective Time, Fourth
will promptly disclose to First Dodge and the
Stockholders in writing any information of which it has
actual knowledge (1) concerning any event that would
render any representation or warranty of Fourth untrue if
made as of the date of such event, (2) which renders any
information set forth in this Agreement no longer correct
in all material respects, or (3) which arises after the
date hereof and which would have been required to be
included in the Agreement if such information had existed
on the date hereof.
ARTICLE IV
SECURITIES LAWS MATTERS
4.1. Registration Statement and Proxy Statement.
Fourth shall as soon as practicable prepare and file the
Registration Statement under and pursuant to the Securities Act for
the purpose of registering the shares of Fourth Stock to be issued
in the Mergers. First Dodge, FNB, MBI, and the Banks shall each
provide promptly to Fourth such information concerning its
respective business, financial condition, and affairs as may be
required or appropriate for inclusion in the Registration Statement
or the Proxy Statement and each shall cause its counsel and
auditors to cooperate with the other's counsel and auditors in the
preparation and filing of the Registration Statement and the Proxy
Statement. Fourth and First Dodge shall use their Best Efforts to
have the Registration Statement declared effective under the
Securities Act as soon as may be practicable and thereafter First
Dodge, MBI, and First National shall each distribute the Proxy
Statement to its respective stockholders in accordance with
applicable Laws not fewer than 20 business days prior to the date
on which the Fourth Merger Agreement and the Bank Merger Agreements
are to be submitted to the stockholders for voting thereon. If
necessary, in light of developments occurring subsequent to the
distribution of the Proxy Statement to stockholders, First Dodge,
MBI, and First National shall each mail or otherwise furnish to its
respective stockholders such amendments to the Proxy Statement or
supplements to the Proxy Statement as may, in the opinion of Fourth
or First Dodge, be necessary so that the Proxy Statement, as so
amended or supplemented, will contain no untrue statement of any
material fact and will not omit to state any material fact required
to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading, or as may be necessary to comply with applicable Law.
Fourth shall not be required to maintain the effectiveness of the
Registration Statement for the purpose of resale of Fourth Stock by
any person.
4.2. State Securities Laws. Fourth shall prepare and
file and the parties hereto shall cooperate in making any filings
required under the securities laws of any State in order either to
qualify or register the Fourth Stock so it may be offered and sold
lawfully in such State in connection with the Mergers or to obtain
an exemption from such qualification or registration.
4.3. Affiliates. Certificates representing shares of
Fourth Stock issued to Affiliates of First Dodge, MBI, or First
National pursuant to the Fourth Merger Agreement or the Bank Merger
Agreements may be subjected to stop transfer orders and may bear a
restrictive legend in substantially the following form:
The shares of common stock represented by this
certificate have been issued or transferred to the
registered holder as the result of a transaction to which
Rule 145 under the Securities Act of 1933, as amended
(the "Act"), applies. Such shares may not be sold,
pledged, transferred, or assigned, and the issuer shall
not be required to give effect to any attempted sale,
pledge, transfer, or assignment, except (i) pursuant to
a then current effective registration under the Act, (ii)
in a transaction permitted by Rule 145 as to which the
issuer has, in the reasonable opinion of its counsel,
received reasonably satisfactory evidence of compliance
with Rule 145, or (iii) in a transaction which, in the
opinion of counsel satisfactory to the issuer or as
described in a "no-action" or interpretive letter from
the staff of the Securities and Exchange Commission, is
not required to be registered under the Act. Transfer of
the shares represented by this certificate is further
restricted by an Affiliate's Agreement dated as of
__________, 1994, between the issuer and the registered
holder to which reference is hereby made.
ARTICLE V
CLOSING CONDITIONS
5.1. Conditions to Obligations of Fourth, BANK IV
Kansas, and BANK IV Oklahoma. The obligations of Fourth to effect
the Mergers and to issue any Fourth Stock and the obligation of
BANK IV Kansas and BANK IV Oklahoma to effect the Bank Mergers
shall be subject to the following conditions which may, to the
extent permitted by Law, be waived by Fourth at its option:
a. Stockholder Approvals. The approval,
ratification, and confirmation of this Agreement and the
Bank Merger Agreements and the Fourth Merger Agreement by
the respective stockholders of each Bank and First Dodge,
FNB, and MBI shall have been duly obtained as required by
Law.
b. Absence of Litigation. No order, judgment,
or decree shall be outstanding restraining or enjoining
consummation of any of the Mergers; and no Litigation
shall be pending or threatened in which it is sought to
restrain or prohibit any of the Mergers or obtain other
substantial monetary or other relief against one or more
of the parties hereto in connection with this Agreement.
c. Securities Laws. The Registration Statement
shall have become effective under the Securities Act and
Fourth shall have received all state securities laws
permits or other authorizations or confirmation of the
availability of exemption from registration requirements
necessary to issue the Fourth Stock in the Mergers.
Neither the Registration Statement nor any such permit,
authorization, or confirmation shall be subject to a
stop-order or threatened stop-order or similar proceeding
or order by the SEC or any state securities authority.
d. Regulatory Approvals. All Required Approvals
shall have been procured and shall continue to be in
effect.
e. Limit on Dissent. The holders of an aggre-
gate amount of the then issued and outstanding First
Dodge Stock, MBI Common Stock, and First National Stock
which shall be convertible into an amount of Fourth Stock
issuable in the Mergers equal to not more than five
percent of the total amount of Fourth Stock issuable in
the Mergers shall have validly exercised their rights as
dissenting stockholders.
f. Minimum Net Worths of the Banks. Fourth
shall be reasonably satisfied that the stockholders'
equity of the Metro Bank and the consolidated
stockholders' equity of First National as of the end of
the month immediately preceding the Effective Time,
computed in accordance with GAAP, are not less than
$3,500,000 and $9,000,000, respectively.
g. Opinion of Counsel. Fourth shall have
received the opinion of Mangan, Dalton, Trenkle, Rebein
& Doll, Chartered, counsel to the Corporations and the
Stockholders, substantially in the form of Exhibit "D"
hereto.
h. Representations and Warranties; Covenants.
The representations and warranties of First Dodge, FNB,
MBI, the Banks, and the Stockholders contained in Section
3.1 of this Agreement shall have been true and correct in
all material respects on the date made and shall be true
and correct in all material respects at the Effective
Time as though made at such time, excepting: (i) any
changes occurring in the ordinary course of business,
none of which shall have been materially adverse, and
(ii) any changes contemplated or permitted by this
Agreement. First Dodge, FNB, MBI, the Banks, and the
Stockholders shall each have performed in all material
respects all of their obligations under this Agreement.
i. Certificates. First Dodge, FNB, MBI, and the
Banks shall each have delivered to Fourth a certificate,
in form and substance satisfactory to Fourth, dated the
Effective Time and signed by its chief executive officer
and chief financial officer certifying in such detail as
Fourth may reasonably request the fulfillment of
conditions a, b, e, f, and h above and m below.
j. Affiliates' Agreements. Fourth shall have
received all of the agreements of Affiliates of First
Dodge, MBI, and First National substantially in the form
of Exhibit "G" hereto.
k. Pooling of Interests. Fourth shall have
received a letter from its independent public
accountants, dated the Effective Time, to the effect that
the Mergers can each properly be treated for accounting
purposes as a "pooling of interests" under GAAP.
l. Employment Agreement. John V. Harding shall
have executed and delivered an agreement substantially in
the form of Exhibit "E" hereto.
m. Material Adverse Changes. Since the date of
this Agreement there shall not have occurred any material
adverse change in the condition (financial or otherwise)
business, liabilities (contingent or otherwise),
properties, or assets of any of the Corporations.
n. Satisfactory Environmental Reports. Fourth
shall have received environmental assessment reports
covering all of the Corporations' real estate, in form
and substance reasonably satisfactory to Fourth, which do
not cause Fourth reasonably to conclude that there are
any material Environmental, Health, and Safety
Liabilities associated with any of such real estate.
5.2. Conditions to Obligations of First Dodge, FNB,
MBI, the Banks, and the Stockholders. The obligations of First
Dodge, FNB, MBI, the Banks, and the Stockholders to effect the
Mergers and to consummate the transactions contemplated hereby
shall be subject to the following conditions which may, to the
extent permitted by Law, be waived by it at its option:
a. General. Each of the conditions specified in
clauses a, b, c, and d of Section 5.1 of this Agreement
shall have occurred and be continuing.
b. Representations and Warranties; Covenants.
The representations and warranties of Fourth contained in
Section 3.2 of this Agreement shall have been true and
correct in all material respects on the date made and
shall be true and correct in all material respects at the
Effective Time as though made at such time, excepting any
changes occurring in the ordinary course of business,
none of which shall have been materially adverse, and
excepting any changes contemplated or permitted by this
Agreement. Fourth shall have duly performed in all
material respects all of its obligations under this
Agreement.
c. Certificate. Fourth shall have delivered to
First Dodge a certificate, in form and substance
satisfactory to First Dodge, dated the Effective Time and
signed by its chief executive officer and chief financial
officer on behalf of Fourth, certifying in such detail as
First Dodge may reasonably request as to the fulfillment
of the foregoing conditions except for the conditions set
forth in clauses a and d of Section 5.1 of this
Agreement.
d. Opinion of Counsel. First Dodge shall have
received the opinion of Foulston & Siefkin, counsel to
Fourth, addressed to First Dodge, FNB, MBI, the Banks and
their stockholders, satisfactory in form and substance to
First Dodge, substantially in the form of Exhibit "F"
hereto.
e. Material Adverse Change. Since the date of
this Agreement there shall not have occurred any material
adverse change in the condition (financial or otherwise),
business, properties, liabilities (contingent or
otherwise), or assets of Fourth.
ARTICLE VI
EFFECTIVE TIME
The consummation of the Mergers and the delivery of the
certificates and other documents called for by this Agreement, and
the consummation of all other transactions contemplated by this
Agreement shall take place at such time and place in Wichita,
Kansas, as the parties may mutually agree which, unless otherwise
agreed, shall be not later than the last day of the month in which
the final regulatory approval required to effect the Mergers is
received and the latest required waiting period expires. The
parties agree that they shall exert their reasonable best efforts
to cause the Effective Time to be on or before June 30, 1994.
ARTICLE VII
TERMINATION OF AGREEMENT
7.1. Mutual Consent; Absence of Stockholder Approval;
Termination Date. This Agreement and the Merger Agreements shall
terminate at any time when the parties hereto mutually agree in
writing. This Agreement and the Merger Agreements may also be
terminated at the election of either First Dodge or Fourth, as the
case may be, upon written notice from the party electing to
terminate this Agreement and the Merger Agreements to the other
party if, without fault on the part of the party electing to
terminate this Agreement and the Merger Agreements, the Merger
Agreements are not ratified and approved by the stockholders of
First Dodge, FNB, MBI, Metro Bank or First National by the
requisite vote or if there has been a denial of a Required Approval
except upon compliance with terms reasonably deemed onerous by
Fourth. Unless extended by written agreement of the parties, this
Agreement and the Merger Agreements shall terminate if all
conditions to the obligations of the parties hereto have not
occurred on or before June 30, 1994.
7.2. Election by Fourth. Notwithstanding the approval
of the Merger Agreements by the stockholders of BANK IV Kansas and
BANK IV Oklahoma, this Agreement and the Merger Agreements shall
terminate at Fourth's election, upon written notice from Fourth to
First Dodge, if any one or more of the following events shall occur
and shall not have been remedied to the satisfaction of Fourth
within 30 days after written notice is delivered to First Dodge:
(a) there shall have been any material breach of any of the
material obligations, covenants, or warranties of First Dodge, FNB,
MBI, First National, Metro Bank, or the Stockholders hereunder; or
(b) there shall have been any written representation or statement
furnished by First Dodge, FNB, MBI, First National, Metro Bank, or
the Stockholders hereunder which at the time furnished is false or
misleading in any material respect in relation to the size and
scope of the transactions contemplated by this Agreement.
7.3. Election by First Dodge. Notwithstanding the
approval of the Merger Agreements by the stockholders of First
Dodge, FNB, MBI, First National, or Metro Bank, this Agreement and
the Merger Agreements shall terminate at the election of First
Dodge, upon written notice from First Dodge to Fourth, if any one
or more of the following events shall occur and shall not have been
remedied to their satisfaction within 30 days after written notice
is delivered to Fourth: (a) there shall have been any material
breach of any of the material obligations, covenants, or warranties
of Fourth hereunder; or (b) there shall have been any written
representation or statement furnished by Fourth hereunder which at
the time furnished is false or misleading in any material respect
in relation to the size and scope of the transactions contemplated
by this Agreement.
ARTICLE VIII
INDEMNIFICATION
8.1. Effect of Closing. Except as provided in this
Section, closing of the transactions contemplated by this Agreement
shall not prejudice any claim for damages which any of the parties
hereto may have hereunder in law or in equity, due to a material
default in observance or the due and timely performance of any of
the covenants and agreements herein contained or for the material
breach of any warranty or representation hereunder, unless such
observance, performance, warranty, or representation is
specifically waived in writing by the party making such claim. In
the event any warranty or representation contained herein is or
becomes untrue or breached (other than by reason of any fraudulent
misrepresentation or fraudulent breach of warranty or any willful
breach of a covenant) and such breach or misrepresentation is
promptly communicated by First Dodge to Fourth in writing prior to
the Effective Time, Fourth shall have the right, at its sole
option, either to waive such misrepresentation or breach in writing
or to terminate this Agreement, but in either such event, neither
First Dodge, FNB, MBI, either Bank, nor any of the Stockholders
shall be liable to Fourth for any such damages, costs, expenses, or
otherwise by reason of such breach or misrepresentation. In the
event Fourth elects to close the transactions contemplated by this
Agreement notwithstanding the written communication of such breach
or misrepresentation to Fourth by First Dodge, Fourth shall be
deemed to have waived such breach or misrepresentation in writing.
8.2. General Indemnification. Subject to the
limitations on the liability of Stockholders contained in this
Article VIII, Stockholders shall be liable for, and shall defend,
save, indemnify, and hold harmless Fourth, BANK IV Kansas, BANK IV
Oklahoma, and their respective officers, directors, employees, and
agents, and each of them (hereinafter individually referred to as
an "Indemnitee" and collectively as "Indemnitees") against and with
respect to any losses, liabilities, claims, diminution in value,
litigation, demands, damages, costs, charges, legal fees, suits,
actions, proceedings, judgments, expenses, or any other losses
(including without limitation any income tax consequences of the
receipt of any indemnification payment) (herein collectively
referred to as "Indemnifying Losses") that may be sustained,
suffered, or incurred by, or obtained against, any Indemnitee
arising from or by reason of the breach or nonfulfillment of any of
the warranties, agreements, or representations made by the
Stockholders, or any of them, in this Agreement; provided, however
that the liability of Stockholders to defend, save, indemnify, and
hold harmless any of the Indemnitees for any liabilities, claims,
or demands indemnified under this Agreement, shall be limited to
the amount by which all such Indemnifying Losses exceed $240,000 in
the aggregate, net of income tax effect and after taking into
account all available insurance proceeds. It is agreed that the
indemnification obligations of the Stockholders shall be solely for
the benefit of the Indemnitees and may not be enforced by any
insurer under any subrogation or similar agreement or arrangement
or by any governmental agency except as a receiver for any
Indemnitee.
8.3. Procedure. If any claim or demand shall be made
or liability asserted against any Indemnitee, or if any litigation,
suit, action, or administrative or legal proceedings shall be
instituted or commenced in which any Indemnitee is involved or
shall be named as a defendant either individually or with others,
and if such Litigation, claim, demand, liability, suit, action, or
proceeding, if successfully maintained, will result in any
Indemnifying Losses as defined in Section 8.2, Fourth shall give
Stockholders written notice thereof within 20 days after it
acquires knowledge thereof. If, within 20 days after the giving of
such notice, Fourth receives written notice from Stockholders (by
the Agents, as defined in Section 9.5, acting for all Stockholders
jointly) stating that Stockholders dispute or intend to defend
against such claim, demand, liability, suit, action, or proceeding,
then Stockholders shall have the right to select counsel of their
choice and to dispute or defend against or settle such claim at
their expense, and the Indemnitees shall fully cooperate with
Stockholders in such dispute or defense or settlement so long as
Stockholders are conducting such dispute or defense diligently and
in good faith. If no such notice of intent to dispute or defend is
received by Fourth within the aforesaid 20-day period, of if such
diligent and good faith defense is not being, or ceases to be,
conducted, Fourth shall have the right, directly or through one or
more of the Indemnitees, to dispute and defend against the claim,
demand, or other liability at the cost and expense of Stockholders,
to settle such claim, demand, or other liability, together with
interest or late charges thereon, and in either event to be
indemnified as provided in this Agreement so long as Fourth
conducts such defense diligently and in good faith; provided,
notice of any proposed settlement shall be given to Stockholders as
far in advance as practicable under the circumstances and, if
Stockholders shall timely object to the terms of such proposed
settlement, they may assume the defense in accordance with the
terms of this Section 8.3. If any event shall occur that would
entitle Indemnitees to a right of indemnification hereunder, any
loss, damage, or expense subject to indemnification shall be
subject to the limitations otherwise set forth in this Article
VIII.
8.4. Survival of Representations and Warranties.
Notwithstanding any rule of law or provision of this Agreement to
the contrary, the representations and warranties of Stockholders
contained in this Agreement and not waived pursuant to the terms of
this Agreement shall survive the Mergers and the closing of the
transactions described in this Agreement; provided, however, that
no claim by an Indemnitee for indemnification or breach of warranty
under this Agreement shall be valid unless an Indemnitee shall have
given written notice of its assertion or claim to Stockholders on
or prior to the date on which Fourth files or is required to file
with the SEC its Annual Report on Form 10-K for the year ended
December 31, 1994, whichever is earlier.
8.5. Several Liability of Stockholders. The liability
of the Stockholders under this Agreement shall not be joint, but
rather shall be several in proportion to the aggregate amount of
Fourth Stock each such Stockholder receives for the stock being
exchanged pursuant to this Agreement and the Merger Agreements as
compared to the total amount of Fourth Stock being received by all
First Dodge, MBI, and First National stockholders. The liability
of each such Stockholder under this Agreement shall be limited to
the sum of the value of Fourth Stock and cash for fractional
shares, if any, received by such Stockholder under this Agreement
and the Merger Agreements. For the purposes of this Section 8.5,
the Fourth Stock received by Stockholders shall be deemed to have
the same value as the reported closing price thereof in the NASDAQ
quotation system on the date in which the Effective Time occurs.
8.6. Indemnification Payments. All indemnification
obligations of the Stockholders under this Article VIII shall be
satisfied by payment in Fourth Stock which will be deemed to have
the same value as the reported closing price thereof in the NASDAQ
quotation system on the date in which the Effective Time occurs.
ARTICLE IX
MISCELLANEOUS
9.1. Expenses. Whether or not the Mergers are
effected, all costs and expenses incurred in connection with this
Agreement and the transactions contemplated hereby shall be paid by
the party incurring such expense.
9.2. Affiliates' Agreements. Prior to the Effective
Time, First Dodge shall deliver to Fourth a list, reviewed by its
counsel, identifying all of the stockholders who are, in its
opinion, Affiliates of First Dodge, MBI, or First National. First
Dodge, MBI, and First National shall each use its Best Efforts to
cause each of its stockholders who is identified by it as being an
Affiliate to execute a written agreement, on or before the
Effective Time, in a form substantially similar to the form of
Affiliate's Agreement attached hereto as Exhibit "G". Fourth shall
not be obligated to deliver any shares of Fourth Stock to any
person who is named as an Affiliate on such list prior to receipt
of such an agreement.
9.3. Notices. All notices or other communications
required or permitted hereunder shall be sufficiently given if
personally delivered or if sent by certified or registered mail,
postage prepaid, return receipt requested, addressed as follows:
(a) if to Fourth, addressed to Darrell G. Knudson, Chairman of the
Board, Post Office Box 4, Wichita, Kansas 67201; and (b) if to
First Dodge, FNB, MBI, First National, Metro Bank, and the
Stockholders, addressed to John V. Harding, 619 Second Avenue,
Dodge City, Kansas 67801, or to such other address as shall have
been furnished in writing in the manner provided herein for giving
notice.
9.4. Stockholders' Agreements. Each Stockholder agrees
not to sell, pledge, encumber, or otherwise hypothecate or transfer
any shares of capital stock of any class of any of the Corporations
prior to the Effective Time unless the transferee or pledgee agrees
with Fourth in writing to be bound by this Agreement and to vote
all shares of such stock owned by him or her in favor of approval
of this Agreement and the Merger Agreements.
9.5. Power of Attorney. Each Stockholder irrevocably
appoints each of the other Stockholders, jointly (the "Agents"),
the agents and attorneys-in-fact of such Stockholder for the
purposes of acting in the name and stead of such Stockholder in:
(i) giving and receiving all notices permitted or required by this
Agreement; (ii) agreeing with Fourth, BANK IV Kansas, and BANK IV
Oklahoma as to any amendments to this Agreement and the Merger
Agreements which the Agents may deem necessary or advisable,
including but not limited to the extension of time in which to
consummate the transactions contemplated by this Agreement, and the
waiver of any closing conditions; (iii) employing legal counsel;
(iv) paying any legal and any other fees and expenses incurred by
the Agents in consummating the transactions contemplated by this
Agreement; and (v) making, executing, acknowledging, and delivering
all such contracts, orders, receipts, notices, requests,
instructions, certificates, letters, and other writings, and in
general doing all things and taking all actions which the Agents,
in their sole discretion, may consider necessary or proper in
connection with or to carry out the terms of this Agreement, as
fully as if such Stockholders were personally present and acting.
This power of attorney and all authority conferred hereby is
granted and conferred subject to the interests of Fourth, BANK IV
Kansas, BANK IV Oklahoma, First Dodge, FNB, MBI, the Banks, and the
other Stockholders who are parties to this Agreement, and in
consideration of those interests and for the purpose of completing
the transactions contemplated hereby, this power of attorney and
all authority conferred hereby shall be irrevocable and shall not
be terminated by any Stockholder or by operation of law, whether by
the death, incompetency, or incapacity of the Stockholders, or any
of them, or by the occurrence of any other event. If any
Stockholder should die or become incompetent or incapacitated, or
any other event should occur before the consummation of the
transactions contemplated by this Agreement, all actions taken by
the Agents pursuant to this Agreement shall be as valid as if such
death, incompetence, or incapacity or other event had not occurred,
regardless of whether Fourth, BANK IV Kansas, BANK IV Oklahoma,
First Dodge, FNB, MBI, First National, Metro Bank, or the Agents,
or any of them, shall have received notice of such death,
incompetence, incapacity, or other event. Each Stockholder agrees
to hold the Agents, and each of them, free and harmless from any
and all loss, damage, expense, or liability which they, he, or she
may sustain or incur as a result of any action taken or not taken
in good faith hereunder. Any Agent shall have the power to act
alone hereunder.
9.6. Time. Time is of the essence of this Agreement.
9.7. Law Governing. This Agreement shall, except to
the extent federal law is applicable, be construed in accordance
with and governed by the laws of the State of Kansas, without
regard to the principles of conflicts of laws thereof.
9.8. Entire Agreement; Amendment. This Agreement
contains and incorporates the entire agreement and understanding of
the parties hereto with respect to the subject matter hereof and
supersedes all prior negotiations, agreements, letters of intent,
and understandings. This Agreement may only be amended by an
instrument in writing duly executed by all corporate parties hereto
and the Stockholders (by the Agents acting for all Stockholders
jointly), and all attempted oral waivers, modifications, and
amendments shall be ineffective.
9.9. Successors and Assigns. The rights and
obligations of the parties hereto shall inure to the benefit of and
shall be binding upon the successors and permitted assigns of each
of them; provided, however, that this Agreement, the Merger
Agreements, or any of the rights, interests, or obligations
hereunder or thereunder may not be assigned by any of the parties
hereto without the prior written consent of the other parties
hereto.
9.10. Cover, Table of Contents, and Headings. The
cover, table of contents, and the headings of the sections and
subsections of this Agreement and the Merger Agreements are for
convenience of reference only and shall not be deemed to be a part
hereof or thereof or taken into account in construing this
Agreement or the Merger Agreements.
9.11. Counterparts. This Agreement and the Merger
Agreements may be executed in one or more counterparts, each of
which shall be deemed an original but which together shall
constitute but one agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed.
FOURTH FINANCIAL CORPORATION FIRST DODGE CITY
BANCSHARES, INC.
By By
-------------------------- --------------------------
/s/Darrell G. Knudson
Chairman of the Board Chairman of the Board
"Fourth" "First Dodge"
FIRST NATIONAL BANCSHARES METRO BANCSHARES, INC.
OF DODGE CITY, INC.
By__________________________ By____________________________
"FNB" "MBI"
METRO BANK OF BROKEN ARROW FIRST NATIONAL BANK AND TRUST
COMPANY IN DODGE CITY
By______________________ By__________________________
"Metro Bank" "First National"
[signatures continued]
_______________________________ __________________________
/s/Thomas P. Shirley /s/John V. Harding
VIDA EBNER REVOCABLE TRUST
By________________________
/s/Vida Ebner, Trustee
"Stockholders"
EXHIBIT "A"
AGREEMENT TO MERGE
between
BANK IV KANSAS, NATIONAL ASSOCIATION,
and
FIRST NATIONAL BANK AND TRUST COMPANY IN DODGE CITY
under the charter of
BANK IV KANSAS, NATIONAL ASSOCIATION
under the title of
BANK IV KANSAS, NATIONAL ASSOCIATION
THIS AGREEMENT made among BANK IV Kansas, National
Association (hereinafter referred to as "BANK IV"), a banking
association organized under the laws of the United States, being
located at 100 North Broadway, City of Wichita, County of
Sedgwick, in the State of Kansas, with a capital of
$356,457,292.74 divided into 9,254,200 shares of common stock,
each of $5.00 par value, and surplus of $218,601,457.92 and
undivided profits, including capital reserves, of $91,584,834.82
as of December 31, 1993, and First National Bank and Trust
Company in Dodge City, a national banking association organized
under the laws of the United States (hereinafter referred to as
"First National") being located at 619 Second, Dodge City, County
of Ford, in the State of Kansas, with a capital of $600,000,
divided into 6,000 shares of common stock, each of $100.00 par
value, and surplus of $_________ and undivided profits, including
capital reserves, of $_________ as of December 31, 1993, each
acting pursuant to a resolution of its board of directors,
adopted by the vote of a majority of its directors, pursuant to
the authority given by and in accordance with the provisions of
the Act of November 7, 1918, as amended (12 USC Section 215a).
W I T N E S S E T H: That,
Section 1. First National shall be merged into BANK IV
under the charter of the latter.
Section 2. The name of the receiving association
(hereinafter referred to as the "Association") shall be BANK IV
Kansas, National Association.
Section 3. The business of the Association shall be
that of a national banking association. This business shall be
conducted by the Association at its main office which shall be
located at 100 North Broadway, Wichita, Kansas, and at its
legally established branches.
Section 4. The amount of capital stock of the
Association shall be $46,871,000, divided into 9,374,200 shares
of common stock, each of $5.00 par value, and at the time the
merger shall become effective, the Association shall have a
surplus of $___________, and undivided profits, including capital
reserves, which when combined with the capital and surplus will
be equal to the combined capital structures of the merging banks
as stated in the preamble of this Agreement, adjusted, however,
for normal earnings and expenses (and if applicable, purchase
accounting adjustments) between December 31, 1993, and the
effective time of the merger. The amount of capital stock of the
Association and its surplus and undivided profits at the time the
merger becomes effective shall also be adjusted to reflect the
effect of all mergers of other banks into the Association, if
any, between December 31, 1993 and the effective time of the
merger.
Section 5. All assets as they exist at the effective
time of the merger shall pass to and vest in the Association
without any conveyance or other transfer. The Association shall
be responsible for all of the liabilities of every kind and
description, including liabilities arising from the operation of
a trust department, of each of the merging entities existing as
of the effective time of the merger.
Section 6. Of the capital stock of the Association,
the presently outstanding 9,254,200 shares of common stock, each
of $5.00 par value, the holder of it, Fourth Financial
Corporation, shall retain its present rights. In addition,
Fourth Financial Corporation shall receive an additional 120,000
shares of common stock of the Association by reason of the
merger. Upon the merger becoming effective, the shares of
capital stock of First National shall no longer be outstanding
and the sole right of the holders thereof, other than Fourth
Financial Corporation, shall be to exchange such shares for 95.92
shares of common stock of Fourth Financial Corporation, par value
$5.00 per share, for each share of capital stock of First
National so exchanged.
Section 7. Except as expressly permitted in an
Agreement and Plan of Reorganization dated as of February 2,
1994, among Fourth Financial Corporation, First National, First
Dodge City Bancshares, Inc., First National Bancshares of Dodge
City, Inc., Metro Bancshares, Inc., Metro Bank of Broken Arrow,
and the stockholders of First Dodge City Bancshares, Inc. (the
"Reorganization Agreement"), First National shall not (i) declare
or pay any dividend to its shareholders, (ii) dispose of any of
its assets in any other manner except in the normal course of
business and for adequate value, or (iii) take any other action
which would violate the terms of the Reorganization Agreement.
Section 8. The present board of directors and officers
of BANK IV shall continue to serve as the board of directors and
officers of the Association until the next annual meeting or
until such time as their successors have been elected and have
qualified.
Section 9. Effective as of the time this merger shall
become effective as specified in the merger approval to be issued
by the Comptroller of the Currency, the articles of association
of BANK IV as then in effect shall be the articles of association
of the resulting bank.
Section 10. This Agreement may be terminated as
provided in the Reorganization Agreement. Notwithstanding the
approval of this Agreement by any stockholder group, this
Agreement shall automatically terminate upon the termination of
the Reorganization Agreement for any reason, and in no event
shall the merger of First National into BANK IV occur prior to
the consummation of the other Mergers as such term is defined in
the Reorganization Agreement.
Section 11. This Agreement shall be ratified and
confirmed by the affirmative vote of stockholders of each of the
merging banks owning at least two-thirds of its capital stock
outstanding, at a meeting to be held on the call of the
directors; and the merger shall become effective at the time
specified in a merger approval to be issued by the Comptroller of
the Currency of the United States.
WITNESS, the signatures and seals of said merging
entities as of the ___ day of February 1994, each set by its
chairman of the board, president, or a vice president and
attested to by its cashier or secretary, pursuant to a resolution
of its board of directors, acting by a majority:
BANK IV KANSAS,
NATIONAL ASSOCIATION
Attest:
By
-------------------------
- ------------------------- /s/K. Gordon Greer,
/s/John C. Maloney, Secretary Chairman of the Board
and President
[Seal of Bank]
FIRST NATIONAL BANK AND TRUST
COMPANY IN DODGE CITY
By
--------------------------
________________, President
Attest:
_______________________
______________, Secretary
[Seal of Bank]
STATE OF KANSAS )
) SS:
SEDGWICK COUNTY )
On this _____ day of February, 1994, before me, a
notary public for this state and county, personally came K.
Gordon Greer, as chairman of the board and president, and John C.
Maloney, as secretary, of BANK IV Kansas, National Association, a
national banking association, and each in his capacity
acknowledged this instrument to be the act and deed of the
association and the seal affixed to it to be its seal.
WITNESS my official seal and signature this day and
year.
----------------------------
Notary Public
My Appointment Expires:
- -----------------------
STATE OF KANSAS )
) SS:
FORD COUNTY )
On this ____ day of February, 1994, before me, a notary
public for this state and county, personally came
________________ as president, and ______________ as secretary of
The First National Bank and Trust Company in Dodge City, a
national banking association, and each in his/her capacity
acknowledged this instrument to be the act and deed of the bank
and the seal affixed to it to be its seal.
WITNESS my official seal and signature this day and
year.
----------------------------
Notary Public
My Appointment Expires:
- -----------------------
EXHIBIT "B"
AGREEMENT TO MERGE
between
BANK IV OKLAHOMA, NATIONAL ASSOCIATION
and
METRO BANK OF BROKEN ARROW
under the charter of
BANK IV OKLAHOMA, NATIONAL ASSOCIATION
under the title of
BANK IV OKLAHOMA, NATIONAL ASSOCIATION
THIS AGREEMENT made between BANK IV Oklahoma, National
Association (hereinafter referred to as "BANK IV"), a banking
association organized under the laws of the United States, being
located at 515 South Boulder, City of Tulsa, County of Tulsa, in
the State of Oklahoma, with a capital of $190,712,286.07 divided
into 5,720,647 shares of common stock, each of $5.00 par value,
and surplus of $133,050,335.55 and undivided profits, including
capital reserves, of $29,058,715.74 as of December 31, 1993, and
Metro Bank of Broken Arrow (hereinafter referred to as "Metro"),
a banking corporation organized under the laws of the State of
Oklahoma, being located at 1800 S. Elm Place, Broken Arrow, Tulsa
County, in the State of Oklahoma, with a capital of $762,500,
divided into 305,000 shares of common stock, each of $2.50 par
value, and surplus and undivided profits of approximately
$__________ as of December 31, 1993, each acting pursuant to a
resolution of its board of directors, adopted by the vote of a
majority of its directors, pursuant to the authority given by and
in accordance with the provisions of the Act of November 7, 1918,
as amended (12 USC 215a).
W I T N E S S E T H: That,
Section 1. Metro shall be merged into BANK IV under
the charter of the latter.
Section 2. The name of the receiving association
(hereinafter referred to as the "Association") shall be BANK IV
Oklahoma, National Association.
Section 3. The business of the Association shall be
that of a national banking association. This business shall be
conducted by the Association at its main office which shall be
located at 515 South Boulder, Tulsa, Oklahoma, and at its legally
established branches.
Section 4. The amount of capital stock of the
Association shall be $29,365,735 divided into 5,873,147 shares of
common stock, each of $5.00 par value, and at the time the merger
shall become effective, the Association shall have a surplus of
$___________, and undivided profits, including capital reserves,
which when combined with the capital and surplus will be equal to
the combined capital structures of the merging banks as stated in
the preamble of this Agreement, adjusted, however, for normal
earnings and expenses (and if applicable, purchase accounting
adjustments) between December 31, 1993, and the effective time of
the merger. The amount of capital stock of the Association and
its surplus and undivided profits at the time the merger becomes
effective shall also be adjusted to reflect the effect of all
mergers of other banks into the Association, if any, between
December 31, 1993 and the effective time of the merger.
Section 5. All assets as they exist at the effective
time of the merger shall pass to and vest in the Association
without any conveyance or other transfer. The Association shall
be responsible for all of the liabilities of every kind and
description, including liabilities arising from the operation of
a trust department, of Metro existing as of the effective time of
the merger.
Section 6. Of the capital stock of the Association,
the presently outstanding 5,720,647 shares of common stock, each
of $5.00 par value, the two holders of it, Fourth Financial
Corporation and IV Commercial Acquisition, Inc., shall retain
their present rights. In addition, Fourth Financial Corporation
shall receive by reason of the merger an additional 152,500
shares of common stock, par value $5.00 per share of the
Association. The sole shareholder of Metro, Metro Bancshares,
Inc. ("MBI"), is a party to an Agreement and Plan of
Reorganization, among Fourth Financial Corporation, MBI, First
Dodge City Bancshares, Inc. ("First Dodge"), Metro, First
National Bancshares of Dodge City, Inc., First National Bank and
Trust Company in Dodge City, and the stockholders of First Dodge,
dated as of February 2, 1994 (the "Reorganization Agreement"),
pursuant to which the stockholders of MBI and First Dodge are
receiving full payment for the value of all of the issued and
outstanding capital stock of MBI and First Dodge, so no separate
consideration is to be paid to Metro or any of its shareholders
in such capacity by reason of the merger effected hereby.
Section 7. Except as expressly permitted in the
Reorganization Agreement, Metro shall not (i) declare or pay any
dividend to its shareholders, (ii) dispose of any of its assets
in any other manner except in the normal course of business and
for adequate value, or (iii) take any other action which would
violate the terms of the Reorganization Agreement.
Section 8. The present board of directors and officers
of BANK IV shall continue to serve as the board of directors and
officers of the Association until the next annual meeting or
until such time as their successors have been elected and have
qualified.
Section 9. Effective as of the time this merger shall
become effective as specified in the merger approval to be issued
by the Comptroller of the Currency, the articles of association
of the resulting bank shall be the Articles of Association of
BANK IV.
Section 10. This Agreement may be terminated as
provided in the Reorganization Agreement. Notwithstanding the
approval of this Agreement by any shareholder group, this
Agreement shall automatically terminate upon the termination of
the Reorganization Agreement for any reason, and in no event
shall the merger of Metro into BANK IV occur prior to the
consummation of the other Mergers as such term is defined in the
Reorganization Agreement.
Section 11. This Agreement shall be ratified and
confirmed by the affirmative vote of shareholders of each of the
merging banks owning at least two-thirds of its capital stock
outstanding, at a meeting to be held on the call of the
directors; and the merger shall become effective at the time
specified in a merger approval to be issued by the Comptroller of
the Currency of the United States.
WITNESS, the signatures and seals of said merging banks
this ___ day of February, 1994, each set by its chairman of the
board, president, or a vice president and attested to by its
cashier or secretary, pursuant to a resolution of its board of
directors, acting by a majority:
BANK IV OKLAHOMA,
NATIONAL ASSOCIATION
Attest:
By
-------------------------
_______________________ Ronald L. Baldwin
Lisa R. Carr, Secretary President
[Seal of Bank]
Metro Bank of Broken Arrow
Attest:
By
----------------------------
___________________________ _______________
_____________, Secretary President
[Seal of Bank]
STATE OF OKLAHOMA )
) SS:
TULSA COUNTY )
On this ____ day of February, 1994, before me, a notary
public for this state and county, personally came Ronald L.
Baldwin, President, and Lisa R. Carr as Secretary, of BANK IV
Oklahoma, National Association, and each in his/her capacity
acknowledged this instrument to be the act and deed of the
association and the seal affixed to it to be its seal.
WITNESS my official seal and signature this day and
year.
----------------------------
My Appointment Expires: Notary
- -----------------------
STATE OF OKLAHOMA )
) SS:
TULSA COUNTY )
On this ___ day of February, 1994, before me, a notary
public for this state and county, personally came _______________
as President, and _____________ as Secretary of Metro Bank of
Broken Arrow, an Oklahoma banking corporation, and each in
his/her capacity acknowledged this instrument to be the act and
deed of the association and the seal affixed to it to be its
seal.
WITNESS my official seal and signature this day and
year.
----------------------------
My Appointment Expires: Notary Public
- -----------------------
APPENDIX "C"
AGREEMENT OF MERGER
THIS AGREEMENT OF MERGER, made as of the ____ day of
_______ 1994, among FOURTH FINANCIAL CORPORATION, a Kansas
corporation ("Fourth"); FIRST DODGE CITY BANCSHARES, INC., a
Kansas corporation ("First Dodge"); FIRST NATIONAL BANCSHARES OF
DODGE CITY, INC., a Kansas corporation ("FNB"); and METRO
BANCSHARES, INC., an Oklahoma corporation ("MBI"). Fourth, First
Dodge, FNB, and MBI are hereinafter sometimes referred to as the
"Constituent Corporations;" First Dodge, FNB, and MBI are
hereinafter sometimes referred to as the "Merging Corporations");
and Fourth is hereinafter sometimes called the "Surviving
Corporation."
Recitals
--------
A. The respective Boards of Directors of each of the
four Constituent Corporations have duly adopted resolutions
approving the adoption of an Agreement and Plan of
Reorganization, dated as of February 2, 1994, among Fourth, First
Dodge, FNB, MBI, Metro Bank of Broken Arrow, First National Bank
and Trust Company in Dodge City, and First Dodge's stockholders
(the "Agreement and Plan of Reorganization") and this Agreement
of Merger, subject, among other things, to the approval and
adoption of the Agreement and Plan of Reorganization and this
Agreement of Merger by the holders of at least a majority of the
issued and outstanding capital stock of each class of the Merging
Corporations having voting rights, authorizing the proposed
merger of the Merging Corporations into Fourth upon the terms and
conditions herein set forth.
B. No approval of the stockholders of Fourth of this
Agreement is required by reason of K.S.A. Section 17-6702(e) and 17-
6701(f).
NOW, THEREFORE, Fourth and each of the Merging
Corporations hereby agree that Fourth and the Merging
Corporations shall merge on the terms and conditions hereinafter
provided and in accordance with the following plan:
Plan of Merger
--------------
1. First Dodge, FNB, and MBI shall simultaneously
merge with and into Fourth which shall continue as the Surviving
Corporation and shall be governed by the laws of the State of
Kansas (the "Merger"). At the Effective Time (as defined in
Paragraph 6), the separate existences of each of the Merging
Corporations shall cease. The corporate identity, existence,
purposes, franchises, powers, rights, and immunities of Fourth
shall continue unaffected and unimpaired by the Merger, and the
corporate identity, existence, purposes, franchises, powers,
rights, and immunities of each of the Merging Corporations shall
be merged into Fourth which shall be fully vested therewith. It
is the intention of the parties that the transaction contemplated
by this Agreement of Merger shall qualify as a tax-free
reorganization under Section 368 of the Internal Revenue Code of
1986, as amended.
2. The Articles of Incorporation and Bylaws of
Fourth, as in effect on the Effective Time, shall be and remain
the articles of incorporation and bylaws of the Surviving
Corporation until thereafter amended as provided by law.
3. At the Effective Time:
(a) Fourth shall, without other transfer, succeed
to and possess all the rights, privileges, powers, and
franchises both of a public and private nature and
shall be subject to all the restrictions, disabilities,
debts, liabilities, and duties of each of the
Constituent Corporations.
(b) The rights, privileges, powers, and
franchises of each of the Constituent Corporations and
all property, real, personal and mixed, of and all
debts due or belonging to any of the Constituent
Corporations shall be vested in Fourth; and all
property, rights, privileges, powers, and franchises,
and all and every other interest shall be thereafter as
effectually the property of Fourth as they were of any
of the Constituent Corporations.
(c) Title to any real estate and to any other
property vested by deed or otherwise in any of the
Constituent Corporations shall not revert or be in any
way impaired by reason of the Merger or the statutes
providing therefor; provided, however, that all rights
of creditors and all liens upon the property of any of
the Constituent Corporations shall be preserved
unimpaired, and all debts, liabilities, and duties of
all of the Constituent Corporations shall thenceforth
attach to Fourth and may be enforced against it to the
same extent as if they had been incurred or contracted
by Fourth. After the Effective Time, the Constituent
Corporations shall each execute or cause to be executed
such further assignments, assurances, or other
documents as may be necessary or desirable to confirm
title to their respective properties, assets, and
rights in Fourth or to otherwise carry out the purposes
of this Agreement of Merger, and their respective
officers and directors shall do all such acts and
things to accomplish those purposes which Fourth may
reasonably request.
4. At the Effective Time:
(a) Each issued and outstanding share of each
class of capital stock of each of the Merging
Corporations shall cease to be an issued and existing
share.
(b) Each share of common stock of First Dodge and
MBI shall automatically be converted into and exchanged
for shares of common stock of Fourth ("Fourth Stock")
as follows:
No. of Shares
of Fourth Stock
---------------
First Dodge Common Stock,
par value $1 per share . . . . . . . . 112.42
MBI Common Stock, par
value $.10 per share . . . . . . . . . 0.30
(c) No share of Fourth Stock shall be issued in
exchange for any shares of any other class of capital
stock of any of the Merging Corporations, as all of
such shares are owned, directly or indirectly, by First
Dodge and the value of each thereof is fully reflected
in the number of shares being issued with respect to
First Dodge common stock.
(d) Until surrendered for exchange, each
outstanding stock certificate which prior to the
Effective Time represented common stock of First Dodge
or MBI shall be deemed for all corporate purposes to
represent the right to receive the number of shares of
Fourth Stock into which the shares have been so
converted; provided, that in any matters relating to
the shares represented by such certificates, Fourth may
rely conclusively upon the record of stockholders
maintained by First Dodge and MBI containing the names
and addresses of the holders of record of such stock at
the Effective Time. Unless and until such outstanding
stock certificates formerly representing shares of
common stock of First Dodge or MBI are so surrendered,
no dividend payable to the holders of record of Fourth
Stock, as of any date subsequent to the Effective Time,
shall be paid to the holder of such outstanding
certificates in respect thereof. Upon surrender of
such outstanding certificates (or, in the case of lost
certificates, upon receipt of a surety bond or other
form of indemnification satisfactory to Fourth),
however, the former First Dodge or MBI stockholders
shall receive certificates evidencing the shares of
Fourth Stock to which they are entitled plus the
accrued dividends on such stock, without interest.
(e) No fractional shares of Fourth Stock will be
issued. Instead, upon surrender of First Dodge or MBI
common stock certificates (or, in the case of lost
certificates, upon receipt of a surety bond or other
form of indemnification which is satisfactory to
Fourth), Fourth will pay, or cause to be paid, to the
holder thereof the cash value of the fractional
interest to which the holder thereof would otherwise be
entitled, based upon the closing price of Fourth Stock
on the last trading day two trading days prior to the
Effective Time as reported in the Southwest Edition of
The Wall Street Journal.
(f) The Merger shall effect no change in the
rights of the holders of Fourth Stock that is
outstanding immediately before the Effective Time.
5. The officers and directors of Fourth at the
Effective Time shall continue to be the officers and directors of
the Surviving Corporation until their successors are duly elected
and qualified or their earlier death, resignation, or removal.
6. The Merger shall be effected by and be given
effect upon the filing of this Agreement of Merger in the offices
of the Secretary of State of Kansas and the Secretary of State of
Oklahoma. Such date and time of filing is referred to in this
Agreement of Merger as the "Effective Time." This Agreement of
Merger shall also be recorded in accordance with the provisions
of the Kansas General Corporation Code and the Oklahoma General
Corporation Act, but such recording shall not be a condition
precedent to its becoming effective.
7. This Agreement of Merger may be terminated and
abandoned by mutual consent of the Boards of Directors of Fourth
and the Merging Corporations at any time prior to the Effective
Time, or by the Board of Directors of either Fourth Financial or
the Merging Corporations (acting jointly) if the Agreement and
Plan of Reorganization shall have been terminated as therein
provided.
8. This Agreement of Merger may be executed in any
number of counterparts, and each such counterpart hereof shall be
deemed to be an original instrument, but all of such counterparts
together shall constitute but one agreement.
IN WITNESS WHEREOF, pursuant to authority duly given by
its Board of Directors, each of the Constituent Corporations has
caused this Agreement of Merger to be executed by its Chairman of
the Board or President and attested by its Secretary or an
Assistant Secretary as of the date and year first above written.
FOURTH FINANCIAL CORPORATION
By
-------------------------------
/s/Darrell G. Knudson
Chairman of the Board
ATTEST:
By
--------------------------------
/s/John C. Maloney, Secretary
[signatures continued]
FIRST DODGE CITY BANCSHARES, INC.
By_______________________________
ATTEST: _______________________________
Chairman of the Board
By____________________________
, Secretary
FIRST NATIONAL BANCSHARES OF
DODGE
CITY, INC.
ATTEST:
By_______________________________
_______________________________
By____________________________ President
, Secretary
METRO BANCSHARES, INC.
ATTEST:
By_______________________________
_______________________________
By____________________________ President
, Secretary
ACKNOWLEDGMENTS
---------------
STATE OF KANSAS )
) ss:
SEDGWICK COUNTY )
BE IT REMEMBERED that on this ____ day of ________ 1994,
personally came before me, a Notary Public, in and for the county
and state aforesaid, Darrell G. Knudson and John C. Maloney,
Chairman of the Board and Secretary, respectively, of Fourth
CORPORATION, a Kansas corporation, both of whom are personally
known to me and personally known to me to be the said officers of
said corporation, and they each separately duly executed the above
and foregoing Agreement of Merger before me and acknowledged the
said Agreement of Merger to be their act and deed and the act and
deed of said corporation; that the facts stated therein are true;
that the signature of the chairman of the board of said corporation
to the foregoing Agreement of Merger is in the handwriting of said
chairman of the board of said corporation, and that its seal
affixed to said Agreement of Merger, and attested by the secretary
of said corporation, is the corporate seal of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and seal
of office the day and year aforesaid.
---------------------------------
Notary Public
My Appointment Expires:
- ----------------------
STATE OF KANSAS )
) ss:
FORD COUNTY )
BE IT REMEMBERED that on this _____ day _______, 1994,
personally came before me, a Notary Public, in and for the county
and state aforesaid, ______________________ and ______________,
Chairman of the Board and Secretary, respectively, of FIRST DODGE
CITY BANCSHARES, INC., a Kansas corporation, both of whom are
personally known to me and personally known to me to be the said
officers of said corporation, and they each separately duly
executed the above and foregoing Agreement of Merger before me and
acknowledged the said Agreement of Merger to be their act and deed
and the act and deed of said corporation; that the facts stated
therein are true; that the signature of the chairman of the board
of said corporation to the foregoing Agreement of Merger is in the
handwriting of said chairman of the board of said corporation, and
that its seal affixed to said Agreement of Merger, and attested by
the secretary of said corporation, is the corporate seal of said
corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and seal
of office the day and year aforesaid.
---------------------------------
Notary Public
My Appointment Expires:
- ----------------------
STATE OF KANSAS )
) ss:
FORD COUNTY )
BE IT REMEMBERED that on this _____ day _______, 1994,
personally came before me, a Notary Public, in and for the county
and state aforesaid, ______________________ and ______________,
President and Secretary, respectively, of FIRST NATIONAL BANCSHARES
OF DODGE CITY, INC., a Kansas corporation, both of whom are
personally known to me and personally known to me to be the said
officers of said corporation, and they each separately duly
executed the above and foregoing Agreement of Merger before me and
acknowledged the said Agreement of Merger to be their act and deed
and the act and deed of said corporation; that the facts stated
therein are true; that the signature of the president of said
corporation to the foregoing Agreement of Merger is in the
handwriting of said president of said corporation, and that its
seal affixed to said Agreement of Merger, and attested by the
secretary of said corporation, is the corporate seal of said
corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and seal
of office the day and year aforesaid.
---------------------------------
Notary Public
My Appointment Expires:
- ----------------------
STATE OF OKLAHOMA )
) ss:
TULSA COUNTY )
BE IT REMEMBERED that on this _____ day _______, 1994,
personally came before me, a Notary Public, in and for the county
and state aforesaid, ______________________ and ______________,
President and Secretary, respectively, of METRO BANCSHARES, INC.,
an Oklahoma corporation, both of whom are personally known to me
and personally known to me to be the said officers of said
corporation, and they each separately duly executed the above and
foregoing Agreement of Merger before me and acknowledged the said
Agreement of Merger to be their act and deed and the act and deed
of said corporation; that the facts stated therein are true; that
the signature of the president of said corporation to the foregoing
Agreement of Merger is in the handwriting of said president of said
corporation, and that its seal affixed to said Agreement of Merger,
and attested by the secretary of said corporation, is the corporate
seal of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and seal
of office the day and year aforesaid.
---------------------------------
Notary Public
My Appointment Expires:
- ----------------------
CERTIFICATES
------------
The undersigned, ______________, Secretary of FIRST DODGE
CITY BANCSHARES, INC., a Kansas corporation, on behalf of said
corporation, hereby certifies, pursuant to K.S.A. Section 17-6702 of the
General Corporation Code of the State of Kansas, that the foregoing
Agreement of Merger to which this Certificate is attached has been
submitted to the stockholders of said corporation at a special meeting
thereof, duly called and held in accordance with the Bylaws of said
corporation and the General Corporation Code of the State of Kansas,
on the ____ day of _______, 1994, and at said meeting said agreement
was duly considered, adopted, and approved by the holders of a
majority of each class of capital stock entitled to vote thereon
pursuant to a vote by ballot in person or by proxy taken for the
adoption or rejection of said Agreement of Merger, and the votes of
the stockholders of said corporation representing _________ shares of
Common Stock, being _____% of the issued and outstanding Common Stock
of said corporation, entitled to vote were for the approval and
adoption of said agreement and voted therefor.
IN WITNESS WHEREOF, the undersigned has executed this
Certificate on the _____ day of ________, 1994.
---------------------------------
______________, Secretary
STATE OF KANSAS )
) ss:
FORD COUNTY )
BE IT REMEMBERED that on this ___ day of ________, 1994,
personally came before me, a Notary Public, in and for the county and
state aforesaid, ______________, Secretary of FIRST DODGE CITY
BANCSHARES, INC., a Kansas corporation, who is personally known to me
and personally known to me to be the said officer of said corporation,
and she duly executed the above and foregoing certificate before me
and acknowledged the said certificate to be her act and deed and the
act and deed of said corporation; that the facts stated therein are
true; that this signature is that of the secretary of said
corporation, and that its seal affixed to said certificate is the
corporate seal of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and seal of
office the day and year aforesaid.
---------------------------------
Notary Public
My Appointment Expires:
- ----------------------
The undersigned, ______________, Secretary of FIRST NATIONAL
BANCSHARES OF DODGE CITY, INC., a Kansas corporation, on behalf of
said corporation, hereby certifies, pursuant to K.S.A. SECTION 17-6702 of
the General Corporation Code of the State of Kansas, that the
foregoing Agreement of Merger to which this Certificate is attached
has been submitted to the sole stockholder of said corporation and,
by unanimous written consent executed by said sole stockholder on
____________, 1994, in lieu of a special meeting of stockholders in
accordance with the Bylaws of said corporation and the General
Corporation Code of the State of Kansas, said sole stockholder duly
considered, adopted, and approved said Agreement of Merger by voting
all of the 5,254.50 shares of common stock, par value $1 per share,
that were then issued and outstanding in favor thereof.
IN WITNESS WHEREOF, the undersigned has executed this
Certificate on the ___ day of ________, 1994.
---------------------------------
______________, Secretary
STATE OF KANSAS )
) ss:
FORD COUNTY )
BE IT REMEMBERED that on this ___ day of ________, 1994,
personally came before me, a Notary Public, in and for the county and
state aforesaid, ______________, Secretary of FIRST NATIONAL
BANCSHARES OF DODGE CITY, INC., a Kansas corporation, who is
personally known to me and personally known to me to be the said
officer of said corporation, and she duly executed the above and
foregoing certificate before me and acknowledged the said certificate
to be her act and deed and the act and deed of said corporation; that
the facts stated therein are true; that this signature is that of the
secretary of said corporation, and that its seal affixed to said certificate
is the corporate seal of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and seal of
office the day and year aforesaid.
---------------------------------
Notary Public
My Appointment Expires:
- ----------------------
The undersigned, ______________, Secretary of METRO
BANCSHARES, INC., an Oklahoma corporation, on behalf of said
corporation, hereby certifies, pursuant to the General Corporation Act
of the State of Oklahoma, that the foregoing Agreement of Merger to
which this Certificate is attached has been submitted to the
stockholders of said corporation at a special meeting thereof, duly
called and held in accordance with the Bylaws of said corporation and
the General Corporation Act of the State of Oklahoma, on the ____ day
of _______, 1994, and at said meeting said agreement was duly
considered, adopted, and approved by the holders of a majority of each
class of capital stock entitled to vote thereon pursuant to a vote by
ballot in person or by proxy taken for the adoption or rejection of
said Agreement of Merger, and the votes of the stockholders of said
corporation representing _________ shares of Common Stock, being
_____% of the issued and outstanding Common Stock of said corporation
and _____ shares of Preferred Stock, being ___% of the issued and
outstanding Preferred Stock, entitled to vote were for the approval
and adoption of said agreement and voted therefor.
IN WITNESS WHEREOF, the undersigned has executed this
Certificate on the ____ day of ________, 1994.
---------------------------------
______________, Secretary
STATE OF OKLAHOMA )
) ss:
TULSA COUNTY )
BE IT REMEMBERED that on this ____ day of ________, 1994,
personally came before me, a Notary Public, in and for the county and
state aforesaid, ______________, Secretary of METRO BANCSHARES, INC.,
an Oklahoma corporation, who is personally known to me and personally
known to me to be the said officer of said corporation, and she duly
executed the above and foregoing certificate before me and
acknowledged the said certificate to be her act and deed and the act
and deed of said corporation; that the facts stated therein are true;
that this signature is that of the secretary of said corporation, and
that its seal affixed to said certificate is the corporate seal of
said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and seal of
office the day and year aforesaid.
--------------------------------
Notary Public
My Appointment Expires:
- ----------------------
The undersigned, John C. Maloney, Secretary of Fourth
Financial Corporation, a Kansas corporation, on behalf of said
corporation, hereby certifies, in accordance with K.S.A. Section 17-6702(e)
and pursuant to K.S.A. Section 17-6701(f) of the General Corporation Code
of the State of Kansas, that the foregoing Agreement of Merger to
which this Certificate is attached has been duly approved by the board
of directors of Fourth Financial Corporation and has been duly adopted
pursuant to Subsection (f) of said K.S.A. Section 17-6701 in that (i) the
foregoing Agreement of Merger does not amend in any respect the
Articles of Incorporation of Fourth Financial Corporation; (ii) each
share of stock of Fourth Financial Corporation outstanding immediately
prior to the effective date of the merger is to be an identical
outstanding or treasury share of the surviving corporation after the
effective date of the merger; and (iii) the authorized unissued shares
or the treasury shares of common stock of Fourth Financial Corporation
to be issued or delivered under the foregoing Agreement of Merger do
not exceed 20% of the shares of common stock of Fourth Financial
Corporation outstanding immediately prior to the effective date of the
merger.
IN WITNESS WHEREOF, the undersigned has executed this
Certificate on the ___ day of ___, 1994.
_______________________________
/s/John C. Maloney, Secretary
STATE OF KANSAS )
) ss:
SEDGWICK COUNTY )
BE IT REMEMBERED that on this ____ day of _______, 1993,
personally came before me, a Notary Public, in and for the county
and state aforesaid, John C. Maloney, Secretary of FOURTH FINANCIAL
CORPORATION, a Kansas corporation, who is personally known to me
and personally known to me to be the said officer of said
corporation, and he duly executed the above and foregoing
certificate before me and acknowledged the said certificate to be
his act and deed and the act and deed of said corporation; that the
facts stated therein are true; that this signature is that of the
secretary of said corporation, and that its seal affixed to said
certificate is the corporate seal of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and seal
of office the day and year aforesaid.
---------------------------------
Notary Public
My Appointment Expires:
- ----------------------
TO THE SECRETARY OF STATE OF THE STATE OF OKLAHOMA:
Pursuant to Section 1082 of the Oklahoma General
Corporation Act, Metro Bancshares, Inc., an Oklahoma Corporation,
was merged into Fourth Financial Corporation, a Kansas corporation
and the surviving corporation. Fourth Financial Corporation agrees
that it may be served with process in Oklahoma in any proceeding
for the enforcement of any obligation of Metro Bancshares, Inc., as
well as for enforcement of any obligation of Fourth Financial
Corporation arising from the aforementioned merger, including any
suit or other proceeding to enforce the right of stockholders as
determined in appraisal proceedings pursuant to the provisions of
Section 1091 of the Oklahoma General Corporation Act, and hereby
irrevocably appoints the Secretary of State of the State of
Oklahoma as its agent to accept service of process in any such suit
or other proceedings.
The Secretary of State of the State of Oklahoma shall
mail any such service of process to the following address:
FOURTH FINANCIAL CORPORATION
100 N. Broadway
Wichita, Kansas 67202
IN WITNESS WHEREOF, Fourth Financial Corporation has
caused these presents to be executed by its Chairman of the Board
and Secretary on this ____ day of ________, 1994.
FOURTH FINANCIAL CORPORATION
By
-------------------------------
/s/Darrell G. Knudson
Chairman of the Board
ATTEST:
By
-------------------------------
/s/John C. Maloney, Secretary
STATE OF KANSAS )
) ss:
SEDGWICK COUNTY )
BE IT REMEMBERED that on this ____ day of ________, 1994,
personally came before me, a Notary Public, in and for the county
and state aforesaid, Darrell G. Knudson and John C. Maloney,
Chairman of the Board and Secretary, respectively, of FOURTH
FINANCIAL CORPORATION, a Kansas corporation, both of whom are
personally known to me and personally known to me to be the said
officers of said corporation, and they each separately duly
executed the above and foregoing agreement before me and
acknowledged the said agreement to be their act and deed and the
act and deed of said corporation; that the facts stated therein are
true; that the signature of the chairman of the board of said
corporation to the foregoing agreement is in the handwriting of
said chairman of the board of said corporation, and that its seal
affixed to said agreement, and attested by the secretary of said
corporation, is the corporate seal of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and seal
of office the day and year aforesaid.
---------------------------------
Notary Public
My Appointment Expires:
_________________________
EXHIBIT "D"
___________, 1994
Fourth Financial Corporation
Post Office Box 4
Wichita, Kansas 67201-0004
Re: First Dodge City Bancshares, Inc., Metro
Bancshares, Inc., First National Bancshares of
Dodge City, Inc., Metro Bank of Broken Arrow, and
First National Bank and Trust Company in Dodge City
Gentlemen:
We have acted as counsel to First Dodge City Bancshares,
Inc. ("First Dodge"), Metro Bancshares, Inc. ("MBI"), First
National Bancshares of Dodge City, Inc. ("FNB"), Metro Bank of
Broken Arrow ("Metro Bank"), and First National Bank and Trust
Company in Dodge City ("First National") (all of which are
collectively referred to herein as the "Merging Corporations"), in
connection with the merger (the "Fourth Merger") of First Dodge,
FNB, and MBI with Fourth Financial Corporation, a Kansas
corporation ("Fourth"), the merger (the "BANK IV Oklahoma Merger")
of Metro Bank with BANK IV Oklahoma, a national banking association
("BANK IV Oklahoma"), and the merger ("BANK IV Kansas Merger") of
First National into BANK IV Kansas, National Association ("BANK IV
Kansas"), all pursuant to the Agreement and Plan of Reorganization,
dated as of February 2, 1994 (the "Agreement"), among Fourth, the
Merging Corporations, and the stockholders of First Dodge
("Stockholders"), the related ancillary Merger Agreements described
therein, and the related Disclosure Statement prepared by the
Merging Corporations and the Stockholders. We have also acted as
counsel to the Stockholders in connection with these transactions.
This Opinion Letter is provided to you at your request, pursuant to
Section 5.1.g of the Agreement. Capitalized terms used herein and
not otherwise defined shall have the meanings ascribed to such
terms in the Agreement or in the Accord described below.
This Opinion Letter is governed by, and shall be
interpreted in accordance with, the Legal Opinion Accord (the
"Accord") of the ABA Section of Business Law (1991). As a
consequence, it is subject to a number of qualifications,
exceptions, assumptions, definitions, limitations on coverage and
other limitations, all as more particularly described in the
Accord, and this Opinion Letter should be read in conjunction
therewith. The Law covered by the opinions expressed herein is
limited to the federal Law of the United States and the Laws of the
States of Oklahoma and Kansas. The opinion in Paragraph 6 below is
further limited to our Actual Knowledge after interviews with
corporate officers and review of copies of documents relating to
Litigation furnished to us by such officers.
Based upon and subject to the foregoing, we are of the
opinion that:
1. First Dodge, FNB, and MBI are each a bank
holding company duly registered pursuant to the Bank
Holding Company Act. Each of the Corporations is a
corporation or bank duly organized, validly existing, and
in good standing under the Laws of the jurisdiction of
its incorporation, and each has all requisite corporate
power and authority to conduct its business as it is now
conducted, to own its properties and assets and to lease
properties used in its business. None of the
Corporations has any Subsidiaries except as described in
Section 3.1.a of the Agreement.
2. The Agreement and the Merger Agreements are
enforceable against such of the Merging Corporations that
have executed the same, and against each Stockholder.
3. None of the execution or delivery of the
Agreement or the Merger Agreements or the performance by
the Merging Corporations of their agreements therein,
will (a) violate the Constituent Documents of any of the
Merging Corporations or breach or result in a default
under any agreement or instrument of which we have Actual
Knowledge under which any of the Merging Corporations or
the Stockholders is obligated, or (b) violate any Laws to
which any of the Merging Corporations or the Stockholders
is subject.
4. The capitalization of the Corporations and the
ownership by First Dodge of the capital stock of its
Subsidiaries are accurately described in Section 3.1 of
the Agreement.
5. None of the Corporations has outstanding any
options, warrants, or rights of any kind requiring it to
sell or issue to anyone any capital stock of any class
and none of the Corporations has agreed to issue or sell
any additional shares of its capital stock.
6. The Disclosure Statement contains a true and
complete list and brief description of all Litigation
pending or overtly threatened in writing to which any of
the Corporations is or would be a party or to which any
of their assets is or would be subject. Except as set
forth in Exhibit "O" to the Disclosure Statement, none of
the Corporations is a party to any Litigation other than
routine litigation commenced by a Bank to enforce
obligations of borrowers in which no counterclaims for
any material amounts of money have been asserted or
overtly threatened in writing.
7. The execution, delivery, and performance of the
Agreement and the Merger Agreements by the Merging
Corporations do not require any approval, authorization,
consent, exemptions, notices or intent not to disapprove,
or other action of any governmental body or any filing
with any other governmental body to which the Merging
Corporations or the transactions contemplated hereby are
subject, other than approvals of (a) the Board; (b) the
Comptroller; (c) the SEC and the securities commissioners
or similar officers of the several states; and (d) the
Kansas and Oklahoma secretaries of state. All requisite
approvals, authorizations, consents, and exemptions have
been granted by, and all requisite actions have been
taken by, the governmental bodies listed in the foregoing
clauses (a), (b) and (c).
8. Upon the filing of the Fourth Merger Agreement
with the Secretary of State of Oklahoma and the Secretary
of State of Kansas and the payment of all required taxes
and fees, the Fourth Merger will be effected in
compliance with all applicable Laws of the States of
Oklahoma and Kansas and Fourth will succeed to the assets
and liabilities of First Dodge, FNB, and MBI pursuant to
the Oklahoma General Corporation Act and the Kansas
General Corporation Law. Upon the final approval of the
Bank Mergers by the Comptroller, the Bank Mergers will
each be effected in accordance with all applicable Laws
and BANK IV Kansas shall succeed to the assets and
liabilities of First National and BANK IV Oklahoma will
succeed to the assets of Metro Bank.
While we have not verified, do not pass upon, and do not
assume responsibility for, the accuracy, completeness, or fairness
of the factual statements contained in the Registration Statement
or the Proxy Statement, to the extent that we participated in the
preparation of the Proxy Statement used in connection with the
special stockholders' meetings of First Dodge, MBI, and First
National for the purpose of considering and voting upon the Mergers
and the Registration Statement on Form S-4 filed by Fourth with the
SEC in connection with the registration of shares of Fourth Stock
to be issued in connection with the Mergers, and in the course of
such preparation, in conferences with certain officers and
employees of the Corporations, Fourth, BANK IV Kansas, and BANK IV
Oklahoma with respect thereto, our examination of the Proxy
Statement and Registration Statement and discussions in the above-
described conferences did not disclose to us any information which
gave us reason to believe that the Proxy Statement, at the time it
was first mailed to stockholders of First Dodge, MBI, and First
National and at the time of the special stockholders' meetings of
First Dodge, MBI, and First National at which the Mergers were
approved, contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading (except as
to financial statements and other financial and statistical
information relating to the Corporations, Fourth, BANK IV Kansas,
or BANK IV Oklahoma contained therein and as to all material
relating to or furnished by Fourth, BANK IV Kansas, or BANK IV
Oklahoma, for use in the Proxy Statement or the Registration
Statement, as to all of which we express no opinion).
The phrase "Primary Lawyer Group," as used in the Accord,
is hereby modified and for the purposes of applying the Accord to
this Opinion Letter the Primary Lawyer Group means only the lawyers
in this firm who have given substantive legal attention to
representation of the Merging Corporations and the Stockholders in
connection with the foregoing transactions.
This Opinion Letter may be relied upon by you only in
connection with the foregoing transactions and may not be used or
relied upon by you or any other person for any purpose whatsoever,
except to the extent authorized by the Accord, without in each
instance our prior written consent.
Very truly yours,
MANGAN, DALTON, TRENKLE, REBEIN &
DOLL, CHARTERED
EXHIBIT "E"
CONSULTING AND MARKETING AGREEMENT
THIS AGREEMENT, made and entered into on the __ day of
______, 1994, by and between FIRST NATIONAL BANK AND TRUST COMPANY
IN DODGE CITY, a national banking association, with its principal
place of business at Dodge City, Kansas ("Bank"); FOURTH FINANCIAL
CORPORATION, a Kansas corporation ("Fourth Financial"); and JOHN V.
HARDING, hereinafter referred to as "Executive".
W I T N E S S E T H: That,
- - - - - - - - - -
WHEREAS, Fourth Financial, First Dodge City Bancshares,
Inc. ("First Dodge"), First National Bancshares of Dodge City,
Inc., Metro Bancshares, Inc., Metro Bank of Broken Arrow ("Metro
Bank"), Bank, and the stockholders of First Dodge have heretofore
entered into an Agreement and Plan of Reorganization, dated as of
February 2, 1994 (the "Agreement"); and
WHEREAS, the Agreement provides for the execution and
delivery of this Agreement; and
WHEREAS, upon consummation of the transactions
contemplated by the Agreement, the Bank will be merged into a
wholly owned subsidiary of Fourth Financial, BANK IV Kansas,
National Association ("BANK IV"), who will succeed to this
Agreement;
NOW, THEREFORE, in consideration of the premises and the
covenants contained herein, the parties agree as follows:
1. Resignations. Executive hereby resigns all
directorships and all offices he holds with First Dodge and with
any of its subsidiaries, such resignations to be effective at the
Effective Time as such term is defined in the Agreement (the
"Effective Time").
2. Service as Advisory Director of BANK IV. Executive
hereby agrees to serve as an advisory director of the Dodge City,
Kansas market-based bank of BANK IV at the pleasure of the Board of
Directors of BANK IV. It is recognized that Executive's travel
schedule may prevent his regular attendance at meetings.
3. Consulting and Marketing Agreement. (a) Executive
is hereby retained as an independent consultant for a five-year
period commencing at the Effective Time and ending five years
thereafter. His duties shall consist of: (i) giving such advice
and assistance to management of BANK IV as may reasonably be
requested from time to time; (ii) assisting BANK IV in retaining
the customers and goodwill of the Bank; (iii) upon request of BANK
IV devoting at least 15 consecutive days per calendar quarter on
developing new business for BANK IV's commercial loan and trust
department; and (iv) being involved in economic development
activities in the communities of Broken Arrow or Dodge City. It is
expressly understood that, while Executive is expected to devote
substantial time to performing his duties hereunder, he is not
expected or required to keep regular hours or work full-time.
(b) For all services rendered under this Paragraph 3,
Executive shall receive compensation of $155,000 per year. Such
compensation shall be payable in equal quarterly payments payable
on the first business day of each calendar quarter. Executive will
not be an employee of BANK IV and shall not be eligible to
participate in any of its health insurance, life insurance,
retirement, savings, stock option, or other employee benefit
programs.
(c) The provisions of this Paragraph 3 may only be
terminated by BANK IV in the event of material, intentional breach
by Executive of his duties hereunder after giving Executive written
notice and at least 30 days to cure any default that can be cured
by performance.
(d) If Executive dies during the term hereof, BANK IV's
payment obligations under this Agreement shall terminate as of the
end of the month in which such death occurs.
4. Automobile. At the Effective Time, BANK IV shall
transfer to Executive the Cadillac automobile currently being
furnished to him by the Bank.
5. Relationship of Confidence and Trust. Executive
acknowledges that during his term of employment by the Bank and
First Dodge he has acquired valuable and confidential information,
trade secrets, and relationships with respect to the Bank's and
Metro Bank's successful business practices and operations,
including, by way of illustration and not of limitation, knowledge
of the Bank's and Metro Bank's customers, prices, selling
techniques, costs, and future plans (collectively "Proprietary
Information"). In addition Executive has developed and maintained
on behalf of the Bank and Metro Bank a personal acquaintance with
various persons, including, but not limited to, customers and
suppliers, which acquaintances may constitute the Bank's or Metro
Bank's only contact with such persons. As a consequence of the
foregoing, Executive occupies a position of trust and confidence
with respect to the Bank's and Metro Bank's affairs. In view of
the foregoing and in consideration of the consideration paid to
him, Executive agrees that it is reasonable and necessary for the
protection of the goodwill and business of the Bank, BANK IV, and
BANK IV Oklahoma, National Association ("BANK IV Oklahoma")
(collectively the "Banks"), that he make the covenants contained in
Paragraphs 6 and 7 regarding his conduct, and that the Banks will
suffer irreparable injury if he engages in conduct prohibited
thereby. The covenants contained in Paragraphs 6 and 7 shall each
be construed to be a separate agreement independent of any other
provision of this Agreement, and the existence of any claim or
cause of action of Executive against Fourth Financial or any of the
Banks, predicated on this Agreement or otherwise, shall not
constitute a defense to the enforcement by the Banks of any of said
covenants. The covenants contained in Paragraphs 6 and 7 shall
survive the termination of this Agreement for any reason.
6. Disclosure of Proprietary Information. Executive
recognizes and acknowledges that the Proprietary Information and
all other information as to the business affairs of the Banks not
generally known to the public, as the same may exist from time to
time, are confidential information and are valuable, special, and
unique assets of the Banks' businesses. Executive therefore agrees
that he will never disclose any of the Proprietary Information, or
any other information as to the business affairs of either of the
Banks to any person, firm, corporation, association, or other
entity for any reason or purpose whatsoever except as he may be
compelled to do by legal process. In the event of a breach or
threatened breach by Executive of the provisions of this paragraph,
the Banks, or either of them, shall each be entitled to injunctive
or other equitable relief enjoining and restraining him from
disclosing, in whole or in part, any such Proprietary Information.
Nothing herein shall be construed as prohibiting the Banks from
pursuing any other remedies available to either of them for such
breach or threatened breach.
7. Restrictive Covenant. For a five-year period
commencing at the Effective Time and ending on the date of the
termination of this Agreement, Executive will not, within Tulsa or
Wagoner Counties in Oklahoma, or within 100 miles of Dodge City,
Kansas without the prior written consent of BANK IV or BANK IV
Oklahoma, as the case may be, directly or indirectly, own, manage,
operate, consult with, be employed by, or be connected with the
ownership, management, operation, or control of any business
engaged in the business of commercial banking, of making consumer
or commercial loans (other than credit sales), of accepting
deposits, or providing trust services; provided, nothing contained
in this sentence shall prohibit Executive from owning not more than
5% of the outstanding voting stock of any corporation or bank whose
securities are publicly traded. Executive agrees that, in addition
to all other remedies otherwise available to each of the Banks,
each of the Banks shall each have the right to injunctive relief to
restrain and enjoin any actual or threatened breaches of this
provision and that if in any litigation that might arise over the
provisions contained in this paragraph a court should determine
that the restrictions contained in this paragraph are too broad, or
too long in duration, or too broad in geographic scope to be
enforceable in equity, such provisions as such court might find
unenforceable are amended only so much as shall be necessary in
order for the restrictions contained herein to be enforceable and,
as so amended, shall be enforced by such court.
8. Notices. Any notices required or permitted to be
given under this Agreement shall be sufficient if in writing, and
if sent by registered or certified mail to his or her last known
residence in the case of Executive, or to its principal office in
the case of BANK IV or BANK IV Oklahoma.
9. Waiver of Breach. The waiver of a breach of any
provision of this Agreement shall not operate or be construed as a
waiver of any subsequent breach.
10. Assignment. The rights and obligations of BANK IV
and BANK IV Oklahoma under this Agreement shall inure to the
benefit of, and shall be binding upon, BANK IV, BANK IV Oklahoma,
and their respective successors and assigns. Executive shall not
have the right to assign any of the rights or obligations contained
in this Agreement.
11. Counterparts. This Agreement may be executed in one
or more counterparts, each of which shall be deemed to be an origi-
nal, but which together shall constitute but one agreement.
12. Captions. Captions used in this Agreement are for
convenience of reference only and shall not be deemed a part of
this Agreement nor used in the construction of its meaning.
13. Savings Clause. If any provision of this Agreement
shall be deemed invalid or unenforceable as written, it shall be
construed, to the greatest extent possible, in a manner which shall
render it valid and enforceable and any limitations on the scope or
duration of any such provision shall be deemed to be a part hereof.
No invalidity or unenforceability shall affect any other provision
of this Agreement unless the provision deemed to be so invalid or
unenforceable is a material element of this Agreement, taken as a
whole.
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the day and year first above written.
FOURTH FINANCIAL CORPORATION
By___________________________
Its__________________________
"Fourth Financial"
[signatures continued]
FIRST NATIONAL BANK AND TRUST
COMPANY IN DODGE CITY
By____________________________
Its___________________________
"Bank"
______________________________
/s/John V. Harding
"Executive"
EXHIBIT "F"
___________, 1994
Boards of Directors and Stockholders
First Dodge City Bancshares, Inc.
First National Bancshares of Dodge City, Inc.
Metro Bancshares, Inc.
Metro Bank of Broken Arrow
First National Bank and Trust Company in Dodge City
Gentlemen:
We have acted as counsel to Fourth Financial Corporation
("Fourth"), and BANK IV Oklahoma, National Association ("BANK IV
Oklahoma"), and BANK IV Kansas, National Association ("BANK IV
Kansas") in connection with the preparation of the Agreement and
Plan of Reorganization, dated as of February 2, 1994, among Fourth,
First Dodge City Bancshares, Inc.("First Dodge"), First National
Bancshares of Dodge City, Inc. ("FNB"), Metro Bancshares, Inc.
("MBI"), Metro Bank of Broken Arrow ("Metro Bank"), and First
National Bank and Trust Company in Dodge City ("First National")
and the stockholders of First Dodge (the "Agreement") and the
ancillary Merger Agreements and Registration Statement provided for
therein. This Opinion Letter is provided to you at the request of
Fourth pursuant to Section 5.2.d of the Agreement. Except as
otherwise indicated herein, capitalized terms used in this Opinion
Letter are defined in the Agreement or the Accord described below.
This Opinion Letter is governed by, and shall be
interpreted in accordance with, the Legal Opinion Accord (the
"Accord") of the ABA Section of Business Law (1991). As a
consequence, it is subject to a number of qualifications,
exceptions, assumptions, definitions, limitations on coverage and
other limitations, all as more particularly described in the
Accord, and this Opinion Letter should be read in conjunction
therewith. The law covered by the opinions expressed herein is
limited to the federal Law of the United States and the Law of the
State of Kansas.
Based upon and subject to the foregoing, we are of the
opinion that:
1. Organization, Good Standing, and Authority.
Fourth is a bank holding company duly registered pursuant
to the Bank Holding Company Act. Fourth, BANK IV Kansas,
and BANK IV Oklahoma are each a corporation or bank duly
organized, validly existing, and in good standing under
the laws of the jurisdiction of its incorporation, and
each has all requisite corporate power and authority to
conduct its business as it is now conducted, to own its
properties and assets, and to lease properties used in
its business. Neither Fourth, BANK IV Kansas, nor BANK
IV Oklahoma is in violation of its Constituent Documents.
2. Binding Obligations. The Agreement and the
Merger Agreements are enforceable against such of Fourth,
BANK IV Kansas, and BANK IV Oklahoma as have executed
such agreements.
3. Absence of Default. None of the execution or
the delivery of the Agreement or the Merger Agreements,
or the performance by Fourth, BANK IV Kansas, or BANK IV
Oklahoma of their agreements therein, will (1) violate
the Constituent Documents or breach or result in a
default under any agreement or instrument under which
Fourth, BANK IV Kansas, or BANK IV Oklahoma is obligated
of which we have Actual Knowledge, or (2) violate any
statutory law or regulation to which any of them is
subject.
4. Capitalization. Fourth is authorized to issue
(i) 50,000,000 shares of common stock, par value $5 per
share, of which 26,352,215 shares were issued and
outstanding on December 31, 1993, (ii) 250,000 shares of
Class A Cumulative Convertible Preferred Stock, par value
$100 per share, all of which are issued and outstanding,
and (iii) 5,000,000 shares of Class B Preferred Stock, no
par value, none of which is issued and outstanding. The
shares of Fourth Stock to be issued in the Mergers, when
issued in accordance with the Agreement, will be duly and
validly issued, fully paid, and nonassessable, and will
not be issued in violation of any preemptive rights or
any Laws applicable thereto.
5. Government Authorizations. To our Actual
Knowledge, Fourth, BANK IV Kansas, and BANK IV Oklahoma
have all material permits, charters, licenses, orders,
and approvals of every federal, state, local, or foreign
governmental or regulatory body required in order to
permit them to carry on their respective businesses
substantially as presently conducted.
6. Governmental Approvals. The execution,
delivery, and performance of the Agreement and the Merger
Agreements by Fourth, BANK IV Kansas, and BANK IV
Oklahoma do not require any approval, authorization,
consent, exemptions, notices of intent not to disapprove,
or other action of any regulatory body, administrative
agency, or any other governmental body or any filing with
any governmental body to which Fourth, BANK IV Kansas, or
BANK IV Oklahoma are subject, other than approvals of or
filings with (a) the Board; (b) the Comptroller; (c) the
SEC and the securities commissioner or similar officers
of the several states; and (d) the Kansas and Oklahoma
secretaries of state. All such requisite approvals,
authorizations, consents, exemptions, and notices have
been taken by the appropriate governmental body listed in
the foregoing clauses (a), (b), and (c).
7. Fourth Merger. Upon the filing of the Fourth
Merger Agreement with the Secretary of the State of
Kansas and Secretary of State of the State of Oklahoma
and the payment of all required taxes and fees, the
Fourth Merger shall be effected in compliance with all
applicable laws of the State of Kansas.
While we have not verified, do not pass upon, and do not
assume responsibility for, the accuracy, completeness, or fairness
of the factual statements contained in the Registration Statement
or the Proxy Statement, to the extent we participated in the
preparation and filing of the Proxy Statement and the Registration
Statement with the SEC and, in the course of such preparation, in
conferences with certain officers and employees of the
Corporations, Fourth, BANK IV Kansas, and BANK IV Oklahoma with
respect thereto, our examination of the Proxy Statement and
Registration Statement and discussions in the above-described
conferences did not disclose to us any information which gave us
reason to believe that the Proxy Statement, at the time it was
first mailed to stockholders of First Dodge, FNB, and First
National and at the time of the special stockholders' meetings at
which the Mergers were approved by the stockholders of First Dodge,
FNB, and First National, contained any untrue statement of a
material fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not
misleading (except as to financial statements and other financial
and statistical information relating to the Corporations, Fourth,
BANK IV Kansas, or BANK IV Oklahoma contained therein and as to all
material relating to or furnished by the Corporations and the
Stockholders for use in the Proxy Statement, as to all of which we
do not express any opinion).
We hereby confirm to you that there are no actions or
proceedings against Fourth or any Subsidiary of Fourth, pending or
overtly threatened in writing, before any court, governmental
agency, or arbitrator (i) which seek to affect the enforceability
of the Agreement or (ii) which seek damages in excess of
$10,000,000 other than Kansas Public Employees Retirement System v.
Peters, Gamm, West & Vincent, et al., Case No. 92 CV 433 in the
Third Judicial District Court, Shawnee County, Kansas.
The phrase "Primary Lawyer Group", as used in the Accord,
is hereby modified and for the purposes of applying the Accord to
this Opinion Letter the Primary Lawyer Group means only the lawyers
in this firm who have given substantive legal attention to
representation of Fourth, BANK IV Kansas, and BANK IV Oklahoma in
connection with the Transaction.
This Opinion Letter may be relied upon by you only in
connection with the Transaction and may not be used or relied upon
by you or any other person for any purpose whatsoever, except to
the extent authorized by the Accord, without in each instance our
prior written consent.
Very truly yours,
FOULSTON & SIEFKIN
EXHIBIT "G"
AFFILIATE'S AGREEMENT
---------------------
THIS AGREEMENT, made and entered into as of the ______ day of
____________, 1994, by and between __________________________
(hereinafter referred to as "Affiliate"), and FOURTH FINANCIAL
CORPORATION, a Kansas corporation (hereinafter referred to as
"Fourth").
W I T N E S S E T H: That;
- - - - - - - - - -
WHEREAS, Fourth, First Dodge City Bancshares, Inc. ("First
Dodge"), First National Bancshares of Dodge City, Inc. ("FNB"), and
Metro Bancshares, Inc. ("MBI") are parties to an Agreement and Plan
of Reorganization, dated as of February 2, 1994 (the "Agreement"),
which provides for, subject to various terms and conditions, the
merger of First Dodge, FNB, and MBI into Fourth (the "Fourth
Merger"), the merger of First National Bank and Trust Company in
Dodge City ("First National") into BANK IV Kansas, National
Association (the "BANK IV Kansas Merger"), and the merger of Metro
Bank of Broken Arrow into BANK IV Oklahoma, National Association
(the "BANK IV Oklahoma Merger") (the Fourth Merger, the BANK IV
Kansas Merger, and the BANK IV Oklahoma Merger being collectively
referred to herein as the "Mergers"); and
WHEREAS, Section 5.1.j of the Agreement provides that a
condition to Fourth's obligation to effect the Mergers is the
execution and delivery by each "affiliate" of First Dodge, MBI, and
First National, as such term is defined in the Agreement (an
"Affiliate"), of an agreement concerning the shares of common
stock, par value $5 per share, of Fourth ("Fourth Stock") to be
received by such Affiliate in the Mergers; and
WHEREAS, the parties desire to effect the Mergers and it is in
the best interests of the undersigned that the Mergers be effected;
NOW, THEREFORE, in consideration of the premises and the
issuance of Fourth Stock to the undersigned in the Mergers, and in
order to induce First Dodge, MBI, and First National and Fourth to
effect the Mergers, the undersigned hereby agree as follows:
1. Securities Act Restriction on Transfer and Sale.
Affiliate hereby agrees not to sell, pledge, offer to sell,
transfer, assign, or otherwise dispose of any of the shares of
Fourth Stock issued to Affiliate in the Mergers in violation of the
Securities Act of 1933, as amended.
2. Pooling of Interests Restriction on Transfer and Sale.
Affiliate hereby agrees not to sell, pledge, offer to sell,
transfer, assign, or otherwise dispose of any shares of Fourth
Stock to be received by Affiliate in the Mergers or in any other
way reduce Affiliate's risk relative to such shares (within the
meaning of Accounting Series Release No. 130) until such time as
financial results covering at least 30 days following the Mergers
have been published.
3. Restrictive Legend. Affiliate hereby acknowledges and
agrees that all certificates evidencing Fourth Stock to be issued
to Affiliate pursuant to the Mergers shall be subject to stop
transfer orders and shall bear a restrictive legend substantially
in the following form:
The shares of common stock represented by this
certificate have been issued or transferred to the
registered holder as the result of a transaction to which
Rule 145 under the Securities Act of 1933, as amended
(the "Act"), applies. Such shares may not be sold,
pledged, transferred, or assigned, and the issuer shall
not be required to give effect to any attempted sale,
pledge, transfer, or assignment, except (i) pursuant to
a then current effective registration under the Act, (ii)
in a transaction permitted by Rule 145 as to which the
issuer has, in the reasonable opinion of its counsel,
received reasonably satisfactory evidence of compliance
under Rule 145, or (iii) in a transaction which, in the
opinion of counsel satisfactory to the issuer or as
described in a "no-action" or interpretive letter from
the staff of the Securities and Exchange Commission, is
not required to be registered under the Act.
Transfer of the shares represented by this certificate is
further restricted by an Affiliate's Agreement dated as
of ____________________, 1994, between the issuer and the
registered holder to which reference is hereby made.
4. Miscellaneous. This Affiliate's Agreement constitutes
the entire agreement and understanding of the parties relating to
the subject matter hereof and may not be amended or modified except
by written instrument duly executed by the parties hereto. This
Affiliate's Agreement shall be governed by the laws of the State of
Kansas and shall be construed in accordance therewith. This
Affiliate's Agreement shall inure to the benefit of, and shall be
binding upon, the heirs, legatees, devisees, successors, trustees,
and assigns of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this
Affiliate's Agreement as of the date first above written.
FOURTH FINANCIAL CORPORATION
By________________________________
/s/Darrell G. Knudson, Chairman of
the Board
"Fourth"
_________________________________
"Affiliate"