EXHIBIT 10.2
AGREEMENT AND PLAN OF REORGANIZATION
among
FOURTH FINANCIAL CORPORATION,
STANDARD BANCORPORATION, INC.,
and
ALL OF THE STOCKHOLDERS OF
STANDARD BANCORPORATION, INC.
Dated as of September 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. . . . . . . . . . . . . . . . .8
Section 1.3 Use of Defined Terms. . . . . . . . . . . . . . .8
ARTICLE II. Plan of Reorganization. . . . . . . . . . . . . .8
Section 2.1 Tax-Free Reorganization . . . . . . . . . . . . .8
Section 2.2 Agreements of Fourth. . . . . . . . . . . . . . .9
Section 2.3 Agreements of SBI and the Stockholders. . . . . 10
Section 2.4 The Merger. . . . . . . . . . . . . . . . . . . 15
Section 2.5 Conversion and Exchange of Shares . . . . . . . 16
Section 2.6 Advance Preparations for Merger . . . . . . . . 18
ARTICLE III. Representations and Warranties. . . . . . . . . 18
Section 3.1 Representations and Warranties of SBI, and the
Stockholders. . . . . . . . . . . . . . . . . . 18
Section 3.2 Representations and Warranties of Fourth. . . . 30
ARTICLE IV. Securities Laws Matters . . . . . . . . . . . . 33
Section 4.1 Registration Statement and Proxy Statement. . . 33
Section 4.2 State Securities Laws . . . . . . . . . . . . . 33
Section 4.3 Affiliates. . . . . . . . . . . . . . . . . . . 33
Section 4.4 Affiliates' Agreements. . . . . . . . . . . . . 34
ARTICLE V. Closing Conditions. . . . . . . . . . . . . . . 35
Section 5.1 Conditions to Obligations of Fourth . . . . . . 35
Section 5.2 Conditions to Obligations of SBI and
the Stockholders. . . . . . . . . . . . . . . . 37
ARTICLE VI. Effective Time. . . . . . . . . . . . . . . . . 38
ARTICLE VII. Termination of Agreement. . . . . . . . . . . . 39
Section 7.1 Mutual Consent; Absence of Stockholder
Approval; Termination Date. . . . . . . . . . . 39
Section 7.2 Election by Fourth. . . . . . . . . . . . . . . 39
Section 7.3 Election by SBI . . . . . . . . . . . . . . . . 39
Section 7.4 Effect of Termination . . . . . . . . . . . . . 40
ARTICLE VIII. Indemnification . . . . . . . . . . . . . . . . 40
Section 8.1 Effect of Closing . . . . . . . . . . . . . . . 40
Section 8.2 General Indemnification . . . . . . . . . . . . 41
Section 8.3 Procedure . . . . . . . . . . . . . . . . . . . 41
Section 8.4 Survival of Representations and Warranties. . . 42
Section 8.5 Several Liability of Stockholders . . . . . . . 42
Section 8.6 Indemnification Payments. . . . . . . . . . . . 43
ARTICLE IX. Miscellaneous . . . . . . . . . . . . . . . . . 43
Section 9.1 Expenses. . . . . . . . . . . . . . . . . . . . 43
Section 9.2 Notices . . . . . . . . . . . . . . . . . . . . 43
Section 9.3 Stockholders' Agreements. . . . . . . . . . . . 43
Section 9.4 Time. . . . . . . . . . . . . . . . . . . . . . 44
Section 9.5 Law Governing . . . . . . . . . . . . . . . . . 44
Section 9.6 Entire Agreement; Amendment . . . . . . . . . . 44
Section 9.7 Successors and Assigns. . . . . . . . . . . . . 44
Section 9.8 Cover, Table of Contents, and Headings. . . . . 44
Section 9.9 Counterparts. . . . . . . . . . . . . . . . . . 44
EXHIBITS
Exhibit "A" Form of Merger Agreement
Exhibit "B" Form of Knudsen, Berkheimer, Richardson &
Endacott legal opinion
Exhibit "C" Form of Foulston & Siefkin legal opinion
Exhibit "D" Form of Affiliate's Agreement
AGREEMENT AND PLAN OF REORGANIZATION
AGREEMENT AND PLAN OF REORGANIZATION, dated as of September
2, 1994, between FOURTH FINANCIAL CORPORATION, a Kansas
corporation ("Fourth"), STANDARD BANCORPORATION, INC., a Nebraska
corporation ("SBI"), and all of the stockholders of SBI and CHRIS
J. MURPHY.
W I T N E S S E T H: That,
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WHEREAS, the Boards of Directors of Fourth and SBI have
approved and deem it advisable and in the best interests of their
respective stockholders to consummate the business combination
transaction provided for herein; and
WHEREAS, Fourth, SBI, the stockholders of SBI, and Mr.
Murphy, who is a party to an agreement with Mr. Harper dated
April 17, 1991 relating to Mr. Harper's shares of SBI capital
stock, desire to make certain representations, warranties, and
agreements in connection with the transaction contemplated hereby
and also to prescribe various conditions to consummating such
transaction; and
WHEREAS, for Federal income tax purposes, it is intended
that the merger contemplated by this agreement shall qualify as a
reorganization under the provisions of Section 368 of the
Internal Revenue Code of 1986, as amended;
NOW, THEREFORE, in consideration of the foregoing and the
respective representations, warranties, covenants, and agreements
set forth herein, 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.
"Agreement" refers to this Agreement and Plan of
Reorganization and all amendments hereto.
"Bank" means Standard Bank & Trust, a Missouri state-chartered
bank.
"Bank Stock" means the common stock of the Bank, par value
$100.00 per share.
"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.
"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 Merger 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 to SBI and the Bank.
"Disclosure Statement" means the Disclosure Statement prepared
by SBI and the Stockholders, and delivered by them to Fourth prior
to the execution and delivery of this Agreement by Fourth.
"Division Director" means the Director of the Division of
Finance of the State of Missouri or any successor official or
agency which may be granted powers currently exercised by the
Director of the Division of Finance of the State of Missouri.
"Effective Time" means the date and time on which the Merger
is 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.
"Exchange Act" means the federal Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated
thereunder, all as the same may be in effect at the time.
"Exchange Ratio" means: in the case of SBI Class A Common
Stock, 53.9974; in the case of SBI Class B Common Stock, 53.9971;
and, in the case of SBI Preferred Stock, 3.4487.
"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.
"Fourth" means Fourth Financial Corporation, a Kansas
corporation and a party to this Agreement.
"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 the 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.
"Merger" means the merger of SBI into Fourth pursuant to the
Merger Agreement.
"Merger Agreement" means the Agreement and Articles of Merger,
substantially in the form of Exhibit "A" hereto, pursuant to which
the Merger will be effected.
"Occupied Properties" means the parcels of real property owned
or leased by the Corporations on which the Corporations conduct or
have conducted operations, all of which are described in Exhibit
"H" to the Disclosure Statement under the caption "Occupied
Properties".
"Permitted Contract" means a contract or agreement, written or
oral, between the Bank, on the one hand, and a person other than a
customer of the 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 after the Effective Time
on no more than 30 days' prior notice, (iii) provides for a payment
of no more than $10,000 in any calendar month by the Bank, and (iv)
provides for no payment upon termination in excess of $10,000.
"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 proxy statement to be used in
connection with the special stockholders' meeting of SBI to be
called for the purpose of considering and voting upon the Merger.
"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 Merger.
"Required Approvals" means the approval, consent, or non-
objection, as the case may be, of the Board, the Comptroller, the
Division Director, 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 Merger, the
conversion of the Bank into a national banking association or the
merger of the Bank with another Missouri financial institution as
contemplated by Section 2.3.i below, the direct ownership by Fourth
of the Bank in substantially its present form, and all other
transactions expressly set forth in this Agreement, 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.
"SBI" means Standard Bancorporation, Inc., a Nebraska
corporation and a party to this Agreement.
"SBI Class A Common Stock" means Class A common stock of SBI,
par value $1.00 per share.
"SBI Class B Common Stock" means Class B non-voting common
stock of SBI, par value $1.00 per share.
"SBI Common Stock" refers collectively to both SBI Class A
Common Stock and SBI Class B Common Stock.
"SBI Preferred Stock" means 9% cumulative, non-participating,
non-voting preferred stock of SBI, par value $100 per share.
"SBI Stock" refers collectively to both classes of SBI Common
Stock and SBI Preferred Stock.
"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 persons executing
this Agreement as "Stockholders," including Chris J. Murphy, 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
Agreement, or any other agreement, document, or certificate made or
delivered pursuant to this Agreement, unless otherwise there
defined or unless the context otherwise requires.
ARTICLE II
PLAN OF REORGANIZATION
2.1 Tax-Free Reorganization. It is the intention of the
parties that the Merger contemplated by this Agreement and the
Merger Agreement shall qualify as tax-free reorganization under
Section 368(a)(1)(A) of the Code.
2.2 Agreements of Fourth.
a. Fourth has approved and adopted this Agreement and
the Merger Agreement in accordance with the applicable Laws of
the United States of America and the State of Kansas.
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 Merger.
c. Prior to the Effective Time, Fourth, separately and
with the other parties hereto, shall 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 Merger to be
consummated on the terms provided herein and in the Merger
Agreement as promptly as practicable.
d. On or prior to the Effective Time, as appropriate
for the transactions contemplated hereby, Fourth shall execute
and deliver the Merger Agreement and the other closing
documents provided for in this Agreement, shall take all such
other actions as are required or desirable to effect the
Merger, and shall utilize its 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 SBI 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 SBI during such period with all such information
concerning its affairs as SBI may reasonably request. The
availability or actual delivery of information about Fourth to
SBI shall not affect the covenants, representations, and
warranties of Fourth contained in this Agreement; provided,
that SBI 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, SBI shall treat as confidential all
such information in the same manner as SBI treats similar
confidential information of its own and, if this Agreement is
terminated, SBI shall continue to treat all such information
obtained in such investigation and not otherwise known to SBI
from a source not known to SBI 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 SBI as Fourth shall request.
f. At the Effective Time, Fourth shall replace or repay
SBI's existing credit facility with First Bank, N.A., pursuant
to a Credit Agreement dated December 12, 1991 or any
replacement financing.
g. 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 from the
Effective Time through the termination of the applicable
indemnification period described in Section 8.4 of this
Agreement, which insurance shall provide coverage for acts and
omissions occurring on or prior to the Effective Time.
2.3 Agreements of SBI and the Stockholders.
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a. Prior to the consummation of the Merger, SBI shall
not, and shall not permit the Bank to, except with the prior
written consent of Fourth or as otherwise provided in this
Agreement or the Merger Agreement:
(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 the Bank shall be permitted to pay
dividends sufficient to permit SBI to make required
payment on its Bank Stock debt to First Bank, N.A. and to
pay its normal operating expenses including expenses
associated with the proposed merger transaction;
(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, (b)
payments in accordance with the Fourth Financial
Corporation Acquisition Severance Schedule previously
furnished to SBI, and (c) accrued but unvested bonuses
for three senior executives identified in the Disclosure
Statement in the approximate aggregate amount of
$100,000, and in the individual amounts set forth in the
Disclosure Statement, may be paid at Closing;
(4) Incur any indebtedness for borrowed money
(except for borrowings under SBI's current credit
facility with First Bank, N.A., to pay SBI's expenses
incurred in the ordinary course of business and federal
funds, repurchase agreements entered into in the ordinary
and usual course of business, deposits received by the
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
the 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 Bank 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 Bank (including, without
limitation, sales of assets acquired by the 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) Without Fourth's consent, which consent will
not be unreasonably withheld, 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 Bank), contributions
to capital, property transfers, or otherwise, or by the
purchase of any property or assets of any other
individual, firm, or corporation;
(9) Without Fourth's consent, which consent will
not be unreasonably withheld, 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, SBI shall, and shall
cause the Bank to, 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; furnish Fourth with
monthly financial statements and management reports; and use
its Best Efforts (1) to preserve its business and business
organization intact, (2) to keep available to Fourth 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, to the extent permitted
by Law, SBI shall, and shall cause the Bank to, 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 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 SBI and the Stockholders contained in this Agreement or
the Merger Agreement except as provided in Section 8.1 hereof;
provided, that Fourth shall promptly disclose to SBI 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. SBI shall cause this Agreement and the Merger
Agreement to be submitted promptly to its stockholders for
approval, adoption, ratification, and confirmation at a
meeting to be called and held in accordance with the
applicable Law and its articles of incorporation and bylaws.
The board of directors of SBI hereby recommends to its
stockholders the approval, adoption, ratification, and
confirmation of the Agreement and the Merger Agreement.
e. SBI shall, and shall cause the Bank, to use its Best
Efforts with Fourth 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 do any
and all acts and things reasonably deemed by Fourth or the
Corporations to be necessary or appropriate in order to cause
the Merger to be consummated on the terms provided herein and
in the Merger Agreement as promptly as practicable.
f. On or prior to the Effective Time, as appropriate
for the transactions contemplated hereby, SBI shall execute
and deliver the Merger Agreement and the other closing
documents provided for in this Agreement, shall take all such
other actions required or desirable in order to effect the
Merger, and shall utilize its 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. SBI shall obtain current title evidence or
insurance, environmental assessment reports, and surveys on
such of the Corporations' real estate as Fourth may reasonably
request.
h. From the date hereof through the Effective Time, SBI
shall cause the Bank to give Robert W. Peterson, Vice
President, BANK IV Kansas, National Association (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 $50,000 or
more.
i. SBI and Stockholders acknowledge that Fourth may
acquire one or more financial institutions located in Missouri
in addition to the Bank and that Fourth intends to merge all
of its Missouri financial institutions together into a
national banking association called "BANK IV Missouri,
National Association." Accordingly, Stockholders and SBI
agree to take, and to cause the Bank to take, all such action
as Fourth may reasonably request in order for (1) such a
merger to occur contemporaneous with or immediately following
the Closing and/or (2) the Bank to be converted into a
national banking association named "BANK IV Missouri, National
Association" contemporaneously or immediately following the
Closing.
j. Prior to the Effective Time, SBI shall acquire all
of the shares of Bank Stock held as directors' qualifying
shares pursuant to the existing repurchase agreements between
the Bank and the Bank directors.
k. Chris J. Murphy and Charles M. Harper agree that Mr.
Murphy will not acquire any shares of SBI Stock from Mr.
Harper pursuant to their existing agreement prior to the
Effective Time. Mr. Murphy agrees that if he acquires any of
the Fourth Stock issued to Mr. Harper in the Merger, he will
be bound by the terms and conditions of this Agreement at such
time as though he had been an SBI stockholder on the date
hereof. Fourth shall not be required to register the transfer
of any shares of Fourth Stock from Mr. Harper to Mr. Murphy
until Mr. Murphy has executed and delivered to Fourth an
Affiliate's Agreement.
2.4 The Merger.
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a. At the Effective Time, the Merger shall occur
pursuant to the Merger Agreement. The Merger Agreement shall
be substantially in the form of Exhibit "A" to this Agreement,
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 Merger, the separate existence
of SBI 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
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 SBI; all property, real, personal, and mixed,
belonging to SBI shall be vested in and belong to Fourth; and
all rights of creditors of SBI shall continue unimpaired
against Fourth.
c. From time to time as and when requested by Fourth,
its respective successors or assigns, the officers and
directors of SBI 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
Fourth's title to, and possession of, all the property,
interests, assets, rights, privileges, immunities, powers,
franchises, and authority of SBI 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. Merger. The manner of converting or exchanging the
shares of capital stock of SBI outstanding at the Effective
Time shall be as follows:
(1) The 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 Merger.
(2) At the Effective Time, upon consummation of the
Merger, each issued and outstanding share of SBI Class A
Common Stock, SBI Class B Common Stock, and SBI Preferred
Stock shall cease to be an issued and existing share, and
each share (and all rights to receive accrued preferred
stock dividends) shall automatically be converted into
and exchanged solely for that number of shares of Fourth
Stock equal to the appropriate Exchange Ratio for such
class of stock. A maximum of 315,000 shares of Fourth
Stock will be issued in connection with the Merger, with
126,354 shares of Fourth Stock being allocated for the
conversion and exchange of SBI Class A Common Stock,
168,471 shares of Fourth Stock being allocated for the
conversion and exchange of SBI Class B Common Stock, and
20,175 shares of Fourth Stock being allocated for
conversion and exchange of SBI Preferred Stock. No
holder of SBI Preferred Stock shall have any right to
receive any dividend on any of the SBI Preferred Stock.
b. Adjustment for Changes in Fourth's Capitalization.
If, 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 SBI shall be entitled to
receive in the Merger shall be adjusted equitably to prevent
dilution or enlargement of the proportionate common stock
interests in Fourth to be received by them.
c. Stock Certificates. After the Effective Time and
until surrendered for exchange, each outstanding stock
certificate which prior to the Effective Time represented SBI
Stock 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 may rely exclusively upon the
record of stockholders maintained by SBI 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 SBI 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.
d. Fractional Shares. No fractional shares of Fourth
Stock will be issued. Instead, upon surrender of SBI 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 cash value of the fractional interest to which the
holder thereof would otherwise be entitled, based upon the
Closing Price.
e. 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 SBI Stock,
advising such stockholder of the effectiveness of the Merger
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 Merger. 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 the Bank, and that, as future stockholders
of Fourth, the stockholders of SBI will all benefit from such
action to the extent they are successful. Accordingly, SBI will,
and will cause the Bank 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 SBI and the
Stockholders. Except as expressly disclosed in the Disclosure
Statement, SBI and the Stockholders jointly and severally represent
and warrant to Fourth as follows:
a. Organization, Good Standing, and Authority. SBI 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 with all appropriate governmental agencies,
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 subsidiary of SBI is the Bank. The Bank
has no Subsidiaries. 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 the Bank are insured
by the FDIC to the maximum extent for each depositor provided
by the Federal Deposit Insurance Act and the Bank 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 Agreement will upon
execution and delivery constitute, subject only to the
approval and adoption thereof by the stockholders of SBI,
valid and binding obligations of SBI and each Stockholder,
enforceable against each of such parties in accordance with
the respective terms of such documents, except as the
enforceability thereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, or other
similar Laws relating to or affecting the enforcement of
creditors' rights generally, and subject as to the enforcement
of remedies to general principles of equity. The execution,
delivery, and performance of this Agreement, the Merger
Agreement, and the transactions contemplated by all such
agreements have been duly authorized by the board of directors
of SBI.
c. Absence of Default. None of the execution or the
delivery of this Agreement and the Merger Agreement, 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 material agreement or instrument under which any of
the Corporations is obligated, other than the Credit Agreement
dated December 12, 1991, between SBI and First Bank, N.A., or
(2) violate any Law to which any of the Corporations is
subject.
d. Capitalization. SBI is authorized to issue (i)
6,000 shares of SBI Preferred Stock, par value $100 per share,
of which 5,850 shares are validly issued and outstanding; (ii)
500,000 shares of SBI Class A Common Stock, par value $1.00
per share, of which 2,340 shares are validly issued and
outstanding; and (iii) 500,000 shares of SBI Class B Common
Stock, par value $1.00 per share, of which 3,120 shares are
validly issued and outstanding. The Bank is authorized to
issue 26,000 shares of Bank Stock, par value $100 per share,
of which 26,000 shares are validly issued and outstanding, all
of which are owned by SBI, except for: (i) ten shares held as
directors' qualifying shares, all of which are subject to
valid repurchase agreements, true and correct copies of which
are included in the Disclosure Statement as Exhibits "D-1" to
"D-10"; and (ii) the pledge of such shares to secure the loan
from First Bank, N.A. referred to above, are 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-4."
f. Options, Warrants, and Other Rights. Neither 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 neither 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-6" 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
SBI as of December 31, 1993, and 1992 and for the fiscal
years then ended, with auditors' report thereon and notes
thereto, which have been examined by Deloitte & Touche,
LLP, independent certified public accountants;
(2) Audited Financial Statements of the Bank as of
December 31, 1993, and 1992 and for the fiscal years then
ended, with auditors' report thereon and notes thereto,
which have been examined by Deloitte & Touche LLP,
independent certified public accountants; and
(3) Consolidated Reports of Condition and Income as
of September 30, 1993, December 31, 1993, March 31, 1994,
and June 30, 1994.
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 Bank and SBI 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
or otherwise 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 Bank and in
the quarterly regulatory reports of certain information,
adjustments, 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, 1993, 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. Neither of the Corporations has any
contingent liabilities, other than letters of credit and
similar obligations of the Bank incurred in the ordinary
course of business, that are not described in or reserved
against in the Financial Statements listed above. No claims
based on "undisclosed liabilities and obligations" as defined
in the Purchase and Assumption Agreement, dated December 1,
1990 among W. Grant Gregory, Standard State Bank and Trust,
and Independence Financial Corporation have been asserted
against either of the Corporations pursuant to such Purchase
and Assumption Agreement.
h. Properties. SBI does 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 the Bank.
The Bank has good and marketable title in fee simple to all of
the real property shown on its books 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 the 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
the Bank are in good operating condition and repair, normal
wear and tear excepted.
i. Personal Property. SBI does not own or lease any
material tangible personal property. The 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. All leases of
personal property to which the Bank 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 the Bank is in
good operating condition, normal wear and tear excepted.
j. Taxes. Except for an amended 1993 federal tax
return providing for the payment of additional income tax in
the amount of approximately $30,000 to be filed by the
Corporations prior to the Effective Time, 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 Bank and with financial
institutions entered into by the Bank in the ordinary course
of banking business, 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
either 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 the Merger. 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, neither 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 either Corporation or any
other person;
(7) Any other agreement which materially affects
the business, properties, or assets of either 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 either of the Corporations or any
Stockholder to result in a material loss to either of the
Corporations.
1. Labor Relations; Employees; ERISA. Neither 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, to the knowledge of
either of the Corporations, any 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.
Neither of the Corporations is liable for any arrears of wages
or any taxes or penalties for failure to comply with any of
the foregoing. True and complete copies of the Bank's 401(K)
Plan, the Bank's Annual Officer Bonus Plan, and the Bank's
long-term incentive plan, together with all amendments
thereto, are attached as Exhibits L-1 through L-3,
respectively, to the Disclosure Statement. Except for the
three plans described in the preceding sentence, neither 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. Each such plan is in material compliance with
ERISA and the Code and the 401(K) Plan is a "qualified plan"
within the meaning of Section 401(a) of the Code and 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 and
Stockholders know of no facts or circumstances that could
adversely affect the status of such plan as such a plan or
such trust as such a trust. All accrued contributions and
other payments to be made by the Bank under the three plans
have been made or reserves adequate for such purposes have
been set aside therefor. Neither of the Corporations has
violated any of the provisions of ERISA, and neither 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 either 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 except where the
failure to do so would not have a material adverse effect on
the businesses, results of operations or general business
affairs of SBI and the Bank taken as a whole. All such
licenses, permits, charters, orders, and approvals are in full
force and effect, and neither of the Corporations knows of any
threatened suspension or cancellation of any of them or 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 either 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 either of the Corporations or
any of the Stockholders, threatened Litigation to which either
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, neither of the
Corporations is a party to any Litigation other than routine
litigation commenced by the Bank to enforce obligations of
borrowers in which no counterclaims for any material amounts
of money have been asserted or, to the knowledge of either of
the Corporations or any of the Stockholders, threatened. To
the knowledge of the Corporations or any of the Stockholders,
there are no threatened proceedings against or investigations
of any of the Corporations by either regulatory agency.
p. Brokers or Finders. No broker, agent, finder,
consultant, or other party (other than legal, accounting, and
financial advisors) has been retained by either of the
Corporations or any Stockholder or is entitled to be paid
based upon any agreements, arrangements, or understandings
made by either of the Corporations or any Stockholder in
connection with any of the transactions contemplated by this
Agreement or the Merger Agreement.
q. SEC Filings To Be Accurate. The information
pertaining to the Corporations 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 either
of the Corporations 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-1" to the
Disclosure Statement accurately sets forth after the name of
each Stockholder, the number of shares of each class of SBI
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 Merger, and the number of
shares of Fourth Stock to be received in the Merger; provided,
however, that no Stockholder makes any warranty as to the
shares owned by any other Stockholder. Neither of the
Corporations is a party and none of the Stockholders is a
party to any agreement (except for an agreement dated April
17, 1991, by and between Charles M. Harper and Chris J.
Murphy) which in any way restricts the right of any
Stockholder to vote on this Agreement or the Merger Agreement
or consummate the transactions contemplated therein. There is
no plan or intention by any of the Stockholders to sell,
exchange, or otherwise dispose of a number of shares of Fourth
Stock received in the Merger that would reduce the SBI
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 SBI Stock 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 SBI Stock surrendered for cash in lieu of
fractional shares of Fourth Stock, and (ii) the value of
shares of Fourth Stock held by SBI stockholders prior to the
Merger and otherwise sold, exchanged, or disposed of prior or
subsequent to the Effective Time, shall be deemed received by
SBI stockholders in the Merger and sold, exchanged, or
disposed of immediately thereafter.
s. Environmental Compliance. The Corporations are in
material compliance with all relevant Environmental, Health,
and Safety Laws and neither 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 SBI and any of the Stockholders, no real or
personal property owned or leased by the 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 the Bank. Neither of the
Corporations has 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
either of the Corporations has or has had any interest.
t. Employment of Aliens. The Bank is in material
compliance with the Immigration and Control Act of 1986.
u. Notes and Leases. All promissory notes and leases
owned by the Bank at the Effective Time will represent bona
fide indebtedness or obligations to the Bank and are and will
be fully enforceable in accordance with their terms without
valid set-offs or counterclaims, except as shown on the books
and records of the Bank and 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 SBI, 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, SBI 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 of 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 SBI 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 with all appropriate
governmental agencies, 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 listed on the National Market System of
NASDAQ.
b. Binding Obligations: Due Authorization. This
Agreement constitutes, and the Merger Agreement will upon
execution and delivery constitute, valid and binding
obligations of Fourth, enforceable against it 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 Agreement, and
the transactions contemplated by all such agreements have been
duly authorized by the board of directors of Fourth. No
approval of the holders of outstanding Fourth Stock or other
voting securities of Fourth is necessary to consummate the
Merger.
c. Absence of Default. None of the execution or the
delivery of this Agreement and the Merger Agreement, 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. SEC Documents. Fourth has previously delivered to
SBI its Annual Report on Form 10-K for the year ended December
31, 1993, and its Quarterly Reports on Form 10-Q for the
quarters ended March 31 and June 30, 1994, 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 1994 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 December 31, 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
Agreement.
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 SBI 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 SBI 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 27,201,925 shares were issued and 26,845,241 shares were
outstanding on June 30, 1994, (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 Merger 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 SBI 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 Merger.
SBI shall, and shall cause the Bank to provide promptly to Fourth
such information concerning their respective businesses, 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 independent public accountants to
cooperate with the other's counsel and independent public
accountants in the preparation and filing of the Registration
Statement and the Proxy Statement. Fourth and SBI shall use their
Best Efforts to have the Registration Statement declared effective
under the Securities Act as soon as may be practicable and
thereafter SBI shall distribute the Proxy Statement to its
stockholders in accordance with applicable Laws not fewer than 20
business days prior to the date on which the Merger Agreement is 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, SBI shall mail or otherwise
furnish to its stockholders such amendments to the Proxy Statement
or supplements to the Proxy Statement as may, in the opinion of
Fourth or SBI, 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 Merger or to obtain an
exemption from such qualification or registration.
4.3 Affiliates. Certificates representing shares of Fourth
Stock issued to Affiliates of SBI pursuant to the Fourth Merger
Agreement 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.
4.4 Affiliates' Agreements. Each Stockholder shall, and SBI
shall use its Best Efforts to cause each director, executive
officer, and other person who is an Affiliate of SBI to, deliver to
Fourth, at the Effective Time, a written agreement, in
substantially the form of Exhibit "D" hereto, providing that such
person will not sell, pledge, transfer, or otherwise dispose of any
shares of Fourth Stock received by such Affiliate in the Merger,
except in compliance with the applicable provisions of the
Securities Act and the rules and regulations thereunder, or sell or
otherwise dispose of any shares of Fourth Stock received by such
Affiliate in the Merger or in any other way reduce his 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 Merger have been published.
ARTICLE V
CLOSING CONDITIONS
5.1 Conditions to Obligations of Fourth. The obligations of
Fourth to effect the Merger and to issue any Fourth Stock 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 Merger Agreement by
the stockholders of SBI 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 the Merger; and no Litigation shall be pending
or threatened in which it is sought to restrain or prohibit
the Merger 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 Merger. 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 appropriate regulatory
agencies concerned with the transaction shall have approved
the transaction, and no such approval shall have involved the
imposition of any conditions which are materially burdensome
to Fourth or otherwise materially inconsistent with any
application as filed.
e. Minimum Net Worth of the Bank. Fourth shall have
been reasonably satisfied that the aggregate net worth of the
Bank calculated as of the end of the month immediately
preceding the Effective Time, determined in accordance with
GAAP was at least $6,500,000, excluding any adjustments
required by F.A.S. No. 115 to reflect changes in the Bank's
securities portfolio to adjust to market value.
f. Opinion of Counsel. Fourth shall have received the
opinion of Knudsen, Berkheimer, Richardson & Endacott, counsel
to the Corporation, substantially in the form of Exhibit "B"
hereto.
g. Representations and Warranties; Covenants. The
representations and warranties of SBI 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. SBI and the
Stockholders shall each have performed in all material
respects all of their obligations under this Agreement.
h. Certificates. SBI and the Stockholders shall have
delivered to Fourth a certificate, in form and substance
satisfactory to Fourth, dated the Effective Time and signed by
each of the Corporations' chief executive officer and chief
financial officer certifying in such detail as Fourth may
reasonably request the fulfillment of conditions a, b, e, and
g above and j and n below.
i. Affiliates' Agreements. Prior to the Effective
Time, Fourth shall have received from SBI a list, reviewed by
SBI's counsel, identifying all of its stockholders who are, in
its opinion, Affiliates of SBI. 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 from such
person of an agreement substantially in the form of Exhibit
"D" hereto.
j. 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.
k. 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.
l. Pooling of interests. Fourth shall have received a
letter from its independent public accountants, dated the
Effective Time, to the effect that the Merger can properly be
treated for accounting purposes as a "pooling of interests"
under GAAP. Fourth's accountants have reviewed the agreement,
dated April 17, 1991, between Charles M. Harper and Chris J.
Murphy and have advised Fourth that the provisions of such
agreement will not prevent the transaction from qualifying for
treatment as a "pooling of interests."
m. Resignations. SBI shall have delivered to Fourth
the written resignations, effective at the Effective Time, of
those officers and directors of the Bank as Fourth shall have
requested at least two business days prior to the Effective
Time.
n. Directors' Qualifying Shares. SBI shall have
acquired all of the ten shares of Bank Stock held as
directors' qualifying shares in accordance with currently
existing agreements.
5.2 Conditions to Obligations of SBI and the Stockholders.
The obligations of SBI and the Stockholders to effect the Merger
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 them at their 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 SBI a
certificate, in form and substance satisfactory to SBI, dated
the Effective Time and signed by its chief executive officer
and chief financial officer on behalf of Fourth, certifying in
such detail as SBI may reasonably request as to the
fulfillment of the foregoing conditions except for the
conditions set forth in clauses a and e of Section 5.1 of this
Agreement.
d. Opinion of Counsel. SBI and the Stockholders shall
have received the opinion of Foulston & Siefkin, counsel to
Fourth, addressed to SBI and the Stockholders, satisfactory in
form and substance to SBI, substantially in the form of
Exhibit "C" 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 Merger 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 Merger 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 December 31, 1994.
ARTICLE VII
TERMINATION OF AGREEMENT
7.1 Mutual Consent; Absence of Stockholder Approval;
Termination Date. This Agreement and the Merger Agreement shall
terminate at any time when the parties hereto mutually agree in
writing. This Agreement and the Merger Agreement may also be
terminated at the election of either SBI or Fourth, as the case may
be, upon written notice from the party electing to terminate this
Agreement and the Merger Agreement to the other party if, without
fault on the part of the party electing to terminate this Agreement
and the Merger Agreement, the Merger Agreement is not ratified and
approved by the stockholders of SBI by the requisite vote or if
there has been a denial of a Required Approval or the granting of
a Required Approval only upon compliance with terms reasonably
deemed onerous by Fourth. Unless extended by written agreement of
the parties, this Agreement and the Merger Agreement shall
terminate if all conditions to the obligations of the parties
hereto and the Closing have not occurred on or before January 31,
1995.
7.2 Election by Fourth. This Agreement shall terminate at
Fourth's election, upon written notice from Fourth to SBI, 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 SBI: (a) there shall have been any
material breach of any of the material obligations, covenants, or
warranties of SBI or the Stockholders; or (b) there shall have been
any written representation or statement furnished by SBI 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 SBI. Notwithstanding the approval of the
Merger Agreement by the Stockholders of SBI, this Agreement and the
Merger Agreement shall terminate at the election of SBI, upon
written notice from SBI to Fourth, if any one or more of the
following events shall occur and shall not have been remedied to
SBI's 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.
7.4 Effect of Termination. In the event of termination of
this Agreement by either SBI or Fourth as provided in this Article
VII, this Agreement and the Merger Agreement shall forthwith become
void and there shall be no liability or obligation on the part of
the Stockholders, SBI, Fourth, or their respective officers,
directors, or employees except (i) with respect to the parties'
obligations under Section 9.1, (ii) all obligations relating to the
confidential information contained in this Agreement and in
existing confidentiality agreements, and (iii) with respect to any
liabilities or damages incurred or suffered by a party as a result
of the willful breach by the other party of any of its
representations, warranties, covenants or agreements set forth in
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 SBI 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 SBI 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 SBI, 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, and its 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, judgements,
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 $100,000 in the aggregate, net of income
tax effect and after taking into account all available insurance
proceeds, net recoveries on other real estate owned and other non-
ledger assets, in each case to the extent such amounts exceed the
amounts such assets were carried on the books of the Bank at July
31, 1994. 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
(acting 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 aforesaid 20-day
period, or 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 shall survive the Merger 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 earlier date on which
Fourth files or is required to file with the SEC its: (a) Annual
Report on Form 10-K for the year ended December 31, 1994 if the
Effective Time is in 1994, or (b) Quarterly Report on Form 10-Q for
the quarter ending March 31, 1995 if the Effective Time is after
December 31, 1994.
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 Agreement as compared to
the total amount of Fourth Stock being received by all SBI
stockholders. The liability of each 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 Agreement. 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 Merger is 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 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 SBI and the
Stockholders, addressed to W. Grant Gregory, 375 Park Avenue, Suite
307, New York, N.Y. 10152, or to such other address as shall have
been furnished in writing in the manner provided herein for giving
notice.
9.3 Stockholders' Agreements. Each Stockholder agrees not to
sell, pledge, encumber, or otherwise hypothecate or transfer any
shares of capital stock of any class of either of the Corporations
prior to the Effective Time. Each Stockholder also agrees to vote
all shares of SBI Stock owned by him or it in favor of approval of
this Agreement and the Merger Agreement.
9.4 Time. Time is of the essence of this Agreement.
9.5 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.
9.6 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.
9.7 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 Agreement, 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.
9.8 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 Agreement 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 Agreement.
9.9 Counterparts. This Agreement and the Merger Agreement may
be executed in one or more counterparts, each of which shall be
deemed an original but which together shall constitute but one
agreement.
[continued]
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed.
FOURTH FINANCIAL CORPORATION STANDARD BANCORPORATION, INC.
By /s/Darrell G. Knudson By /s/W. Grant Gregory
--------------------- -------------------
Darrell G. Knudson W. Grant Gregory
Chairman of the Board Chairman of the Board
"Fourth" "SBI"
STOCKHOLDERS
I. Class A Common Stock No. of Shares
-------------------- -------------
Date: ___________, 1994 /s/W. Grant Gregory 780 shares
-------------------
W. Grant Gregory
Date: ___________, 1994 /s/Charles M. Harper 780 shares
--------------------
Charles M. Harper
Date: ___________, 1994 /s/Chris J. Murphy - shares
-------------------
Chris J. Murphy
THE STUART KANSAS CITY
LIMITED PARTNERSHIP
Date: ___________, 1994 By/s/James Stuart, III 780 shares
--------------------
James Stuart, III
General Partner
[continued]
II. Class B Non-Voting Common Stock
-------------------------------
Date: ___________, 1994 /s/Charles M. Harper 1,040 shares
--------------------
Charles M. Harper
Date: ___________, 1994 /s/Chris J. Murphy - shares
-----------------
Chris J. Murphy
THE STUART KANSAS CITY
LIMITED PARTNERSHIP
Date: ___________, 1994 By /s/James Stuart, III 1,040 shares
---------------------
James Stuart, III
General Partner
SOUTHWEST COMPANY
Date: ___________, 1994 By /s/James Gregory 1,040 shares
------------------
James Gregory
President
III. 9% Cumulative, Non-Participating, Non-Voting Preferred Stock
------------------------------------------------------------
Date: ___________, 1994 /s/Charles M. Harper 1,950 shares
---------------------
Charles M. Harper
Date: ___________, 1994 /s/James Stuart 1,950 shares
------------------
James Stuart
Date: ___________, 1994 /s/Chris J. Murphy - shares
-------------------
Chris J. Murphy
SOUTHWEST COMPANY
Date: ___________, 1994 By /s/James Gregory 1,950 shares
------------------
James Gregory
President
Exhibit "A"
AGREEMENT AND ARTICLES OF MERGER
--------------------------------
THIS AGREEMENT AND ARTICLES OF MERGER is made as of
the _____ day of __________ 1994, between FOURTH FINANCIAL
CORPORATION, a Kansas corporation ("Fourth") and STANDARD
BANCORPORATION, INC., a Nebraska corporation ("SBI"). Fourth and
SBI are hereinafter sometimes referred to as the "Constituent
Corporations;" SBI is hereinafter sometimes referred to as the
"Merging Corporation"; and Fourth is hereinafter sometimes called
the "Surviving Corporation."
Recitals
--------
A. The respective Boards of Directors of each of
the two Constituent Corporations have duly adopted resolutions
approving an Agreement and Plan of Reorganization, dated as of
September 2, 1994, between Fourth and SBI (the "Agreement and Plan
of Reorganization") and this Agreement and Articles of Merger,
subject, among other things, to the approval and adoption of the
Agreement and Plan of Reorganization and this Agreement and
Articles of Merger by the holders of at least two-thirds of the
issued and outstanding capital stock of each class of SBI,
authorizing the proposed merger of the SBI 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. 17-6702(e) and
17-6701(f).
NOW, THEREFORE, Fourth and SBI hereby agree that
Fourth and SBI shall merge on the terms and conditions hereinafter
provided and in accordance with the following articles and plan:
Articles and Plan of Merger
---------------------------
1. SBI shall 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 existence of SBI
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 SBI 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 Restated 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 SBI shall cease to
be an issued and existing share.
(b) Each share of capital stock of SBI
(together with all rights to receive unpaid
preferred stock dividends), shall automatically be
converted into and exchanged for shares of common
stock of Fourth, par value $5.00 per share ("Fourth
Stock"), as follows:
No. of Shares
of Fourth
Stock to Be
Class of SBI Capital Stock Received
- -------------------------- -----------
Class A Common Stock, par value $1 p/share 53.9974
Class B Common Stock, par value $1 p/share 53.9971
9% Cumulative Non-Voting Preferred
Stock, $100 p/share 3.4487
(c) Until surrendered for exchange, each
outstanding stock certificate which prior to the
Effective Time represented capital stock of SBI
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 SBI 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 capital stock of SBI 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 SBI stockholders shall receive
certificates evidencing the shares of Fourth Stock
to which they are entitled plus the accrued
dividends on such stock, without interest.
(d) No fractional shares of Fourth Stock
will be issued. Instead, upon surrender of SBI
common or preferred 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.
(e) The Merger shall effect no change in
the rights of the holders of Fourth Stock that is
outstanding immediately before the Effective Time.
(f) No holder or former holder of SBI
preferred stock shall have any right to receive any
additional payment or other consideration with
respect to unpaid dividends on such preferred
stock, the rights to the receipt of which dividends
shall be extinguished at 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
Nebraska. 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 Nebraska Business
Corporation Act, but such recording shall not be a condition
precedent to its becoming effective.
7. This Agreement and Articles of Merger may be
terminated and abandoned by mutual consent of the Boards of
Directors of Fourth and SBI at any time prior to the Effective
Time, or by the Board of Directors of either Fourth Financial or
SBI (acting jointly) if the Agreement and Plan of Reorganization
shall have been terminated as therein provided.
8. This Agreement and Articles 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 and Articles of Merger to be executed by its
Chairman of the Board, President, or Vice President and attested by
its Secretary or an Assistant Secretary as of the date and year
first above written.
FOURTH FINANCIAL CORPORATION
By
----------------------------
Darrell G. Knudson
Chairman of the Board
ATTEST:
By
-----------------------------
William J. Rainey, Secretary
STANDARD BANCORPORATION, INC.
By
----------------------------
Chris J. Murphy
President
ATTEST:
By
------------------------------
E. Dean Gall, 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 William J.
Rainey, 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 and Articles of Merger
before me and acknowledged the said Agreement and Articles 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 and Articles of Merger is in the handwriting
of said chairman of the board of said corporation, and that its
seal affixed to said Agreement and Articles 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:
- -----------------------
ACKNOWLEDGMENTS
---------------
STATE OF __________ )
) ss:
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, Chris J. Murphy and
E. Dean Gall, President and Secretary, respectively, of Standard
Bancorporation, Inc., a Nebraska 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 and Articles of Merger
before me and acknowledged the said Agreement and Articles 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 and Articles of Merger is in the handwriting of said
president of said corporation, and that its seal affixed to said
Agreement and Articles 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, Chris J. Murphy, and E. Dean Gall,
President and Secretary, respectively, of Standard Bancorporation,
Inc., a Nebraska corporation, pursuant to the Nebraska Business
Corporation Act, hereby certify that (a) the foregoing Agreement
and Articles of Merger to which this Certificate is attached
contains the plan of merger, (b) said Agreement and Articles of
Merger 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 Nebraska Business
Corporation Act on the __ day of _____________, 1994, and (c) at
such meeting said stockholders duly considered, adopted, and
approved said Agreement and Articles of Merger by voting all of the
2,340 shares of Class A Common Stock, par value $1.00 per share,
all of the 3,120 shares of Class B Common Stock, par value $1.00
per share, and all of the 5,850 shares of 9% Cumulative Non-Voting
Preferred Stock, $100 par value per share, that were then issued
and outstanding in favor thereof.
IN WITNESS WHEREOF, the undersigned have executed this
Certificate on the ___ day of ________________, 1994.
__________________________
Chris J. Murphy, President
__________________________
E. Deal Gall, Secretary
STATE OF ________ )
) ss:
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 Chris J. Murphy and E. Dean
Gall, President and Secretary of Standard Bancorporation, Inc., a
Nebraska corporation, both of them 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
certificate before me and acknowledged the said certificate to be
their act and deed and the act and deed of said corporation; that
the facts stated therein are true; that the signatures are that of
the president and 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, William J. Rainey, Secretary of
Fourth Financial corporation, a Kansas corporation, on behalf of
said corporation, hereby certifies, in accordance with K.S.A. 17-
6702(e) and pursuant to K.S.A. 17-6701(f) of the General
Corporation Code of the State of Kansas, that the foregoing
Agreement and Articles 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. 17-6701 in that (i) the foregoing
Agreement and Articles 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 and Articles 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.
----------------------------------------
William J. Rainey, 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, William J. Rainey, 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 NEBRASKA:
Pursuant to Section 21-2076 of the Nebraska Business
Corporation Act, Standard Bancorporation, Inc., a Nebraska
corporation, was merged into Fourth Financial Corporation, a Kansas
corporation and the surviving corporation. Fourth Financial
Corporation agrees that (a) it may be served with process within or
without the State of Nebraska in any proceeding in the courts of
Nebraska for the enforcement of any obligation of Standard
Bancorporation, Inc., and in any proceeding for enforcement of the
rights of a dissenting shareholder of Standard Bancorporation, Inc.
against Fourth Financial Corporation arising from the
aforementioned merger, and (b) it will promptly pay to the
dissenting shareholders of Standard Bancorporation, Inc. the
amount, if any, to which they will be entitled under the Nebraska
Business Corporation Act with respect to the rights of dissenting
shareholders.
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
-----------------------------
Darrell G. Knudson
Chairman of the Board
ATTEST:
By
-----------------------------
William J. Rainey, 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 William J.
Rainey, 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 "B"
_________, 1994
Fourth Financial Corporation
Post Office Box 4
Wichita, Kansas 67201-0004
Re: Standard Bancorporation, Inc.
Gentlemen:
We have acted as counsel to Standard Bancorporation, Inc.
("SBI") and its stockholders in connection with the merger (the
"Merger") of SBI with Fourth Financial Corporation, a Kansas
corporation ("Fourth"), pursuant to the Agreement and Plan of
Reorganization, dated as of September 2, 1994 (the "Agreement"),
between Fourth and SBI, the related ancillary Merger Agreement
described therein, and the related Disclosure Statement prepared by
SBI. 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 Nebraska and Missouri.
Based upon and subject to the foregoing, we are of the
opinion that:
1. SBI 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.
Except for the Bank being a Subsidiary of SBI, neither of
the Corporations has any Subsidiaries.
2. The Agreement and the Merger Agreement are
enforceable against the Corporations and the
Stockholders.
3. None of the execution or delivery of the
Agreement or the Merger Agreement or the performance by
the Corporations of their agreements therein will (a)
violate the Constituent Documents of either of the
Corporations or breach or result in a default under any
agreement or instrument of which we have Actual Knowledge
under which either of the Corporations or the
Stockholders is obligated, or (b) violate any Laws to
which either of the Corporations or the Stockholders is
subject.
4. The capitalization of the Corporations and the
ownership by SBI of the capital stock of the Bank are
accurately described in Section 3.1 of the Agreement.
The Stockholders collectively own all of the issued and
outstanding capital stock of all classes of SBI in the
manner described in the Agreement.
5. Neither 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 neither of the Corporations has agreed to issue or
sell any additional shares of its capital stock.
6. The execution, delivery, and performance of the
Agreement and the Merger Agreement by the 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 Corporations or the
transactions contemplated hereby are subject, other than
approvals of (a) the Board; (b) the Comptroller; (c) the
Division Director; and; (d) the SEC and the securities
commissioners or similar officers of the several states.
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), (c), and (d).
7. Upon the filing of the Merger Agreement with the
Secretary of State of Nebraska and the Secretary of State
of Kansas pursuant to the Nebraska Business Corporation
Act and the Kansas General Corporation Law and the
payment of all required taxes and fees, the Merger will
be effected in compliance with all applicable Laws of the
State of Nebraska, and Fourth will succeed to the assets
and liabilities of SBI.
We hereby confirm to you that, except as set forth in
Exhibit "O" to the Disclosure Statement, neither of the
Corporations is a party to any Litigation other than routine
litigation commenced by the Bank to enforce obligations of
borrowers in which no counterclaims for any material amounts of
money have been asserted or overtly threatened in writing.
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' meeting of SBI for the purpose of considering
and voting upon the Merger 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 Merger, and in the course of such preparation, in
conferences with certain officers and employees of the
Corporations, and Fourth 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 SBI
and at the time of the special stockholders' meeting of SBI at
which the Merger was 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, or Fourth
contained therein and as to all material relating to or furnished
by Fourth 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,
KNUDSEN, BERKHEIMER, RICHARDSON
& ENDACOTT
Exhibit "C"
_________, 1994
Board of Directors and Stockholders
Standard Bancorporation, Inc.
Gentlemen:
We have acted as counsel to Fourth Financial Corporation
("Fourth"), in connection with the preparation of the Agreement and
Plan of Reorganization, dated as of September 2, 1994, among
Fourth, Standard Bancorporation, Inc. ("SBI") and the stockholders
of SBI (the "Agreement") and the ancillary Merger Agreement and
Registration Statement provided for therein. This Opinion Letter
is provided to you at the request of Fourth pursuant to Section
5.2d 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 is a corporation
duly organized, validly existing, and in good standing
under the laws of the jurisdiction of its incorporation,
and 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. Fourth is not in violation of its
Constituent Documents.
2. Binding Obligations. The Agreement and the
Merger Agreement are enforceable against Fourth.
3. Absence of Default. None of the execution or
the delivery of the Agreement or the Merger Agreement, or
the performance by Fourth of its agreements therein, will
(1) violate the Constituent Documents or breach or result
in a default under any agreement or instrument under
which Fourth is obligated of which we have Actual
Knowledge, or (2) violate any statutory law or regulation
to which it is subject.
4. Capitalization. Fourth is authorized to issue
50,000,000 shares of common stock, par value $5 per
share, of which _____________ shares were issued and
__________ shares were outstanding on __________, 1994,
(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 Merger, 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 has all material 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.
6. Governmental Approvals. The execution,
delivery, and performance of the Agreement and the Merger
Agreement by Fourth does 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 is
subject, other than approvals of or filings with (a) the
Board; (b) the Comptroller; (c) the Division Director;
(d) the SEC and the securities commissioner or similar
officers of the several states. All such requisite
approvals, authorizations, consents, exemptions, and
notices have been taken by the appropriate governmental
body listed in the foregoing clauses (a), (b), (c), and
(d).
7. Fourth Merger. Upon the filing of the Merger
Agreement with the Secretary of the State of Kansas and
Secretary of State of the State of Nebraska and the
payment of all required taxes and fees, the 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, and Fourth, 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 SBI
and at the time of the special stockholders' meeting at which the
Merger was approved by the stockholders of SBI, 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, or Fourth, 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 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 "D"
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, Affiliate and Standard Bancorporation,
Inc. ("SBI") are parties to an Agreement and Plan of
Reorganization, dated as of September 2, 1994 (the "Agreement"),
which provides for, subject to various terms and conditions, the
merger of SBI into Fourth (the "Merger"); and
WHEREAS, Section 5.1.i of the Agreement provides that a
condition to Fourth's obligation to effect the Merger is the
execution and delivery by each "affiliate" of SBI, 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
Merger; and
WHEREAS, the parties desire to effect the Merger and it
is in the best interests of the undersigned that the Merger be
effected;
NOW, THEREFORE, in consideration of the premises and the
issuance of Fourth Stock to the undersigned in the Merger, and in
order to induce SBI and Fourth to effect the Merger, 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 Merger 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 Merger or in any other way
reduce Affiliate's risk relative to such shares (within the meaning
of Accounting Series Release No. 130) until financial results
covering at least 30 days following the Merger 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 Merger 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 HOLDERS 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
------------------------------
Darrell G. Knudson
Chairman of the Board
"Fourth"
-----------------------------
"Affiliate"