AGREEMENT AND PLAN OF MERGER
by and among
FORT BEND HOLDING CORP.,
FORT BEND FEDERAL SAVINGS AND LOAN ASSOCIATION OF ROSENBERG
and
FIRSTBANC SAVINGS ASSOCIATION OF TEXAS
May 10, 1996
TABLE OF CONTENTS
Page
ARTICLE I. THE MERGER AND RELATED MATTERS................................... 2
1.1 Merger; Interim Thrift and Surviving Thrift..................... 2
1.2 Effective Time of the Interim Merger............................. 2
1.3 Interim Merger................................................... 3
1.4 Closing.......................................................... 5
1.5 Reservation of Right to Revise Transaction....................... 5
ARTICLE II. REPRESENTATIONS, WARRANTIES AND COVENANTS OF
FIRSTBANC....................................................... 6
2.1 Organization and Authority....................................... 6
2.2 Subsidiaries..................................................... 6
2.3 Capitalization................................................... 6
2.4 Authorization.................................................... 6
2.5 FirstBanc Financial Statements................................... 7
2.6 FirstBanc Reports................................................ 8
2.7 Properties and Leases............................................ 8
2.8 Taxes............................................................ 8
2.9 Material Adverse Change.......................................... 9
2.10 Commitments and Contracts........................................ 9
2.11 Litigation and Other Proceedings................................. 9
2.12 Insurance........................................................ 10
2.13 Compliance with Laws............................................. 10
2.14 Labor............................................................ 11
2.15 Material Interests of Certain Persons............................ 11
2.16 Allowance for Loan Losses; Nonperforming Assets.................. 11
2.17 Employee Benefit Plans........................................... 12
2.18 Conduct to Date.................................................. 13
2.19 Proxy Statement, etc............................................. 14
2.20 Registration Obligations......................................... 14
2.21 Takeover Provisions Not Applicable............................... 14
2.22 Regulatory Matters............................................... 14
2.23 Brokers and Finders.............................................. 14
2.24 Accuracy of Information.......................................... 14
2.25 Community Reinvestment Act Compliance............................ 15
ARTICLE III. REPRESENTATIONS, WARRANTIES AND COVENANTS OF
FORT BEND AND FORT BEND FEDERAL................................. 15
3.1 Organization and Authority....................................... 15
3.2 Capitalization of Fort Bend...................................... 15
3.3 Authorization.................................................... 16
3.4 Fort Bend Financial Statements................................... 16
3.5 Fort Bend Reports................................................ 17
3.6 Material Adverse Change.......................................... 17
3.7 Proxy Statement, etc............................................. 17
3.8 Brokers and Finders.............................................. 17
3.9 Accuracy of Information.......................................... 17
3.10 Available Funds................................................... 17
ARTICLE IV. CONDUCT OF BUSINESSES PRIOR TO THE EFFECTIVE TIME................. 18
4.1 Conduct of Businesses Prior to the Interim Merger Effective Time.. 18
4.2 Forbearances...................................................... 18
ARTICLE V. ADDITIONAL AGREEMENTS............................................. 20
5.1 Access and Information............................................ 20
5.2 Regulatory Filings................................................ 20
5.3 Stockholder Approval.............................................. 20
5.4 Current Information............................................... 21
5.5 Conforming Adjustments............................................ 21
5.6 Expenses.......................................................... 21
5.7 Miscellaneous Agreements and Consents............................. 21
5.8 Employee Agreements and Benefits.................................. 22
5.9 Press Releases.................................................... 22
5.10 Third Parties..................................................... 22
5.11 Dissenting Shares................................................. 23
5.12 Right to Attend Meetings of FirstBanc Board and Stockholders...... 23
ARTICLE VI. CONDITIONS........................................................ 23
6.1 Conditions to Each Party's Obligation to Effect the Merger........ 23
6.2 Conditions to Obligations of FirstBanc
to Effect the Merger.............................................. 23
6.3 Conditions to Obligations of Fort Bend and Fort Bend Federal
to Effect the Merger.............................................. 24
ARTICLE VII. TERMINATION, AMENDMENT AND WAIVER................................. 26
7.1 Termination....................................................... 26
7.2 Effect of Termination............................................. 26
7.3 Amendment......................................................... 26
7.4 Severability...................................................... 27
7.5 Waiver............................................................ 27
ARTICLE VIII. GENERAL PROVISIONS................................................ 27
8.1 Non-Survival of Representations, Warranties and Agreements........ 27
8.2 Notices........................................................... 27
8.3 Miscellaneous..................................................... 28
Exhibit A - Interim Merger Agreement
Exhibit B - Thrift Merger Agreement
Exhibit C - Voting Agreement
Exhibit D - Agreement Not to Compete
Exhibit E - Consent to Indemnification Assignment Agreement
Exhibit F - Escrow Agreement
Exhibit G - Form of Opinion of Counsel for Fort Bend
Exhibit H - Form of Opinion of Counsel for FirstBanc
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AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated May 10, 1996,
is by and among Fort Bend Holding Corp., a Delaware corporation ("Fort Bend"),
Fort Bend Federal Savings and Loan Association of Rosenberg, a federally
chartered savings and loan association and a wholly owned subsidiary of Fort
Bend ("Fort Bend Federal") and FirstBanc Savings Association of Texas, a Texas
chartered savings and loan association ("FirstBanc").
A. Fort Bend, Fort Bend Federal and FirstBanc, on the terms and
conditions hereinafter set forth, desire to effect an acquisition transaction
pursuant to which Fort Bend and Ford Bend Federal will acquire for cash all of
the shares of FirstBanc Common Stock (as hereinafter defined) outstanding at the
Interim Merger Effective Time (as hereinafter defined) at a purchase price per
share equal to the amount set forth in Section 1.3(a) hereof.
B. To effect the acquisition, Fort Bend will form a new federally
chartered savings association, which will be a wholly owned direct subsidiary of
Fort Bend (the "Acquisition Thrift"), and Acquisition Thrift shall be merged
with and into FirstBanc (the "Interim Merger") pursuant to the Interim Merger
Agreement attached hereto as Exhibit A (the "Interim Merger Agreement").
FirstBanc will be the surviving entity and a wholly-owned subsidiary of Fort
Bend (the "Interim Thrift"). Upon the Interim Merger becoming effective, the
Interim Thrift shall merge with and into Fort Bend Federal (the "Thrift
Merger"), with Fort Bend Federal as the surviving association (the "Surviving
Thrift"), pursuant to the terms of the Thrift Merger Agreement attached hereto
as Exhibit B (the "Thrift Merger Agreement") and the terms set forth herein, and
subject to all required governmental approvals. (The Interim Merger and the
Thrift Merger are sometimes hereinafter collectively referred to as the
"Merger.")
C. The parties hereto desire to make certain representations, warranties,
covenants and agreements in connection with the Merger and also to prescribe
various conditions to the Merger.
D. Concurrently with the execution and delivery of this Agreement, and as
a condition and inducement to Fort Bend's willingness to enter into this
Agreement, Fort Bend and each of the directors of FirstBanc and Michael E. Casey
have entered into a voting agreement in the form attached hereto as Exhibit C
(the "Voting Agreement").
E. Concurrently with the execution and delivery of this Agreement, and as
a condition and inducement to Fort Bend's willingness to enter into this
Agreement, Fort Bend and Michael E. Casey have entered into an agreement not to
compete in the form attached hereto as Exhibit D (the "Agreement Not to
Compete").
F. Concurrently with the execution and delivery of this Agreement, and as
a condition and inducement to Fort Bend's willingness to enter into this
Agreement, Michael E. Casey, FirstBanc and the trustee of the FirstBanc Savings
Association of Texas Employee Stock Ownership Plan (the "FirstBanc ESOP") have
entered into an agreement attached hereto as Exhibit E ("Consent to
Indemnification Assignment Agreement") assigning to Fort Bend the
indemnification rights of FirstBanc under the Indemnification Agreement, dated
June 10, 1993, by and between Michael E. Casey, FirstBanc and the FirstBanc
ESOP.
Accordingly, and in consideration of the representations, warranties,
covenants, agreements and conditions herein contained, the parties hereto agree
as follows:
ARTICLE I
THE MERGER AND RELATED MATTERS
1.1 Merger; Interim Thrift and Surviving Thrift. Subject to the terms and
conditions of this Agreement, and pursuant to the provisions of the Texas
Savings and Loan Act (the "Texas Act"), the Rules of the Texas Savings and Loan
Department (the "Texas Department") promulgated under the Texas Act (the "Texas
Rules"), the Texas Business Corporation Act (the "TBCA"), the Federal Deposit
Insurance Act (the "FDIA"), the Home Owners' Loan Act ("HOLA") and the rules and
regulations promulgated under the HOLA (the "Thrift Regulations"):
(a) At the Interim Merger Effective Time (as hereinafter defined), the
Acquisition Thrift shall be merged with and into FirstBanc pursuant to the terms
and conditions set forth herein and pursuant to the Interim Merger Agreement,
which shall be executed by Fort Bend, FirstBanc and the Acquisition Thrift prior
to the Interim Merger Effective Time. Upon consummation of the Interim Merger,
the separate existence of the Acquisition Thrift shall cease and FirstBanc shall
continue as the Interim Thrift. The name of FirstBanc, as the Interim Thrift,
shall by virtue of the Interim Merger remain "FirstBanc Savings Association of
Texas." From and after the consummation of the Interim Merger, FirstBanc, as
the surviving association of the Interim Merger, shall possess all the property,
debts, choses in action, and interests and be subject to all of the liabilities
and obligations of the Acquisition Thrift.
(b) Upon consummation of the Interim Merger as set forth in (a) above, (i)
the Boards of Directors of FirstBanc and Fort Bend (in its capacity as sole
stockholder of Fort Bend Federal) shall approve and ratify the Thrift Merger
Agreement and (ii) FirstBanc will be merged with and into Fort Bend Federal in
the Thrift Merger in accordance with applicable state and federal law pursuant
to the Thrift Merger Agreement. Upon completion of the Thrift Merger, the
separate existence of FirstBanc shall cease and Fort Bend shall continue as the
surviving association. The name of Fort Bend Federal as the Surviving Thrift of
the Thrift Merger, shall remain "Fort Bend Federal Savings and Loan Association
of Rosenberg." From and after the Thrift Merger, Fort Bend Federal, as the
surviving association of the Thrift Merger, shall possess all the property,
debts, choses in action and interests and be subject to all of the liabilities
and obligations of FirstBanc.
1.2 Effective Time of the Interim Merger. As soon as practicable after
each of the conditions set forth in Article 6 hereof have been satisfied or
waived, FirstBanc and Fort Bend will file, or cause to be filed, articles of
combination with the Office of Thrift Supervision (the "OTS") and all
appropriate documentation with the Texas Department for the Interim Merger (the
"Interim Merger Effective Time"). Immediately thereafter, FirstBanc and Fort
Bend will approve and ratify the Thrift Merger Agreement and will file, or cause
to be filed, articles of combination with the OTS and all appropriate
documentation with the Texas Department for the Thrift Merger (the "Thrift
Merger Effective Time"). In each case, the appropriate documents filed with the
Texas Department and the articles of combination shall be in the form required
by and executed in accordance with the applicable provisions of the Texas Act
and the Texas Rules, and the Thrift Regulations, respectively. The Interim
Merger shall become effective at the time the articles of combination with
respect to such merger are endorsed by the Secretary of the OTS pursuant to the
Thrift Regulations and the appropriate documents are filed with the Texas
Department with respect to such merger pursuant to the Texas Act and the Texas
Rules. The Thrift Merger shall become effective at the time the articles of
combination for such merger are endorsed by the Secretary of the OTS pursuant to
the Thrift Regulations and the appropriate documents are filed with the Texas
Department
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pursuant to the Texas Act and the Texas Rules (the "Thrift Merger Effective
Time"). The parties shall cause the Interim Merger to become effective
immediately prior to the Thrift Merger.
1.3 Interim Merger.
(a) Conversion of FirstBanc Stock. At the Interim Merger Effective
Time:
(i) Each share of common stock of FirstBanc, $5.00 par value
per share (the "FirstBanc Common Stock"), issued and outstanding immediately
prior thereto (except for Dissenting Shares, as defined in Section 1.3(b)
hereof) shall, by virtue of the Interim Merger and without any action on the
part of the holder thereof, be converted into the right to receive $13.7833 in
cash (for total cash consideration of $4,135,000), provided that if the Interim
Merger Effective Time shall take place more than 60 days after the date of
execution of this Agreement, then the stated cash amount shall be increased at
the rate of the daily federal funds rate (as that rate may be quoted in the Wall
Street Journal) from and including the 60th day after the date of execution of
this Agreement through the Interim Merger Effective Time; and further provided
that an additional amount in cash equal to $0.25 per share (for total cash
consideration of $75,000) (the "Escrowed Funds") shall be placed as of the
Interim Merger Effective Time into escrow pursuant to an Escrow Agreement, the
form of which is attached hereto as Exhibit F. Under certain circumstances
described in the Escrow Agreement, the Escrowed Funds, or a portion thereof, may
also be distributed to the holders of FirstBanc Common Stock.
Notwithstanding any other provision of this Agreement, any shares of
FirstBanc Common Stock issued and outstanding immediately prior to the Interim
Merger Effective Time which are then owned beneficially or of record by Fort
Bend, Fort Bend Federal or FirstBanc, or by any direct or indirect subsidiary of
any of them or are held in the treasury of FirstBanc shall, by virtue of the
Interim Merger, be canceled without payment of any consideration therefor and
without any conversion thereof.
(ii) The holders of certificates representing shares of
FirstBanc Common Stock shall cease to have any rights as stockholders of
FirstBanc, except such rights, if any, as they may have pursuant to the Texas
Act, the Texas Rules, the TBCA, the HOLA or the Thrift Regulations. Except as
provided above, until certificates representing shares of FirstBanc Common Stock
are surrendered for exchange, each such certificate shall, after the Interim
Merger Effective Time, represent for all purposes only the right to receive the
amount of cash into which their shares of FirstBanc Common Stock shall have been
converted by the Interim Merger as provided above (the "Merger Consideration").
(b) Dissenting Shares. Any shares of FirstBanc Common Stock held by a
holder who dissents from the Interim Merger in accordance with the Texas Act and
the TBCA and becomes entitled to obtain payment for the fair value of such
shares of FirstBanc Common Stock pursuant to the applicable provisions of the
Texas Act and the TBCA shall be herein called "Dissenting Shares."
Notwithstanding any other provision of this Agreement, any Dissenting Shares
shall not, after the Interim Merger Effective Time, be entitled to vote for any
purpose or receive any dividends or other distributions and shall be entitled
only to such rights as are afforded in respect of Dissenting Shares pursuant to
the Texas Act and the TBCA. All payments in respect of Dissenting Shares shall
be from funds of Fort Bend and not from the acquired assets of FirstBanc.
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(c) Exchange of FirstBanc Common Stock
(i) As soon as practicable after the Interim Merger Effective
Time, holders of record of certificates formerly representing shares of
FirstBanc Common Stock (the "Certificates") shall be instructed to tender such
Certificates to Fort Bend pursuant to a letter of transmittal that Fort Bend
shall deliver or cause to be delivered to such holders. Such letters of
transmittal shall specify that risk of loss and title to Certificates shall pass
only upon delivery of such Certificates to Fort Bend.
(ii) After the Interim Merger Effective Time, each holder of a
Certificate that surrenders such Certificate to a paying agent designated by
Fort Bend (the "Paying Agent") will, upon acceptance thereof by the Paying
Agent, be entitled to the Merger Consideration.
(iii) At the Interim Merger Effective Time, Fort Bend shall
deposit with the Paying Agent cash in an amount equal to the Merger
Consideration for the benefit of the holders of FirstBanc Common Stock who
exchange their Certificates in accordance with this Section 1.3(c).
(iv) The Paying Agent shall accept Certificates upon compliance
with such reasonable terms and conditions as Fort Bend or the Paying Agent may
impose to effect an orderly exchange thereof in accordance with customary
exchange practices. Certificates shall be appropriately endorsed or accompanied
by such instruments of transfer as Fort Bend or the Paying Agent may reasonably
require.
(v) Each outstanding Certificate, other than those representing
Dissenting Shares, shall until duly surrendered to the Paying Agent be deemed to
evidence the right to receive the Merger Consideration.
(vi) On the Closing Date, each holder of FirstBanc Common Stock
who is entitled to receive aggregate Merger Consideration equal to or in excess
of $100,000 shall be entitled at such time to tender his, her or its
Certificate(s), endorsed in blank or with a separately executed stock power,
with wire instruction information to Fort Bend and Fort Bend shall at the
Interim Merger Effective Time immediately wire transfer to each such holder in
accordance with the wire instruction information the Merger Consideration
payable with respect to the Certificate(s) tendered to Fort Bend on such date.
Fort Bend shall require in any Paying Agent Agreement and shall use its best
efforts to cause the Paying Agent to deliver the Merger Consideration to the
holders of Certificates within three (3) business days from the date of receipt
by the Paying Agent of the Certificates and any other required documents.
(vii) After the Interim Merger Effective Time, holders of
Certificates shall cease to have rights with respect to the FirstBanc Common
Stock previously represented by such Certificates, and their sole rights (other
than the holders of Certificates representing Dissenting Shares) shall be to
exchange such Certificates for the Merger Consideration. After the Interim
Merger Effective Time, there shall be no further transfer on the records of
FirstBanc of Certificates, and if such Certificates are presented to FirstBanc
for transfer, they shall be canceled against delivery of the Merger
Consideration. Fort Bend shall not be obligated to deliver the Merger
Consideration to any holder of FirstBanc Common Stock until such holder
surrenders the Certificates as provided herein.
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Neither the Paying Agent nor any party to this Agreement nor any affiliate
thereof shall be liable to any holder of FirstBanc Common Stock represented by
any Certificate for any consideration paid to a public official pursuant to
applicable abandoned property, escheat or similar laws. Fort Bend and the
Paying Agent shall be entitled to rely upon the stock transfer books of
FirstBanc to establish the identity of those persons entitled to receive
consideration specified in this Agreement, which books shall be conclusive with
respect thereto. In the event of a dispute with respect to ownership of stock
represented by any Certificate, Fort Bend and the Paying Agent shall be entitled
to deposit any consideration in respect thereof in escrow with an independent
third party and thereafter be relieved with respect to any claims thereto. No
interest on the Merger Consideration issuable upon the surrender of the
Certificates shall be paid or accrued for the benefit of holders of
Certificates. If the Merger Consideration is to be issued to a person other
than a person in whose name a surrendered Certificate is registered, it shall be
a condition of issuance that the surrendered Certificate shall be properly
endorsed or otherwise in proper form for transfer and that the person requesting
such issuance shall pay to the Paying Agent any required transfer or other
taxes or establish to the satisfaction of the Paying Agent that such tax has
been paid or is not applicable.
(viii) At any time following six (6) months after the Interim Merger
Effective Time, Fort Bend shall be entitled to terminate the Paying Agent
relationship, and thereafter holders of Certificates shall be entitled to look
only to Fort Bend (subject to abandoned property, escheat or other similar laws)
with respect to the Merger Consideration issuable upon surrender of their
Certificates.
1.4 Closing. Subject to the provisions of Article 6 hereof, the closing
of the transactions contemplated by this Agreement (the "Closing") shall take
place as soon as practicable after satisfaction or waiver of all of the
conditions to Closing. The Closing shall take place on the last business day of
the first calendar month following the satisfaction of all of the conditions to
Closing, at 10:00 a.m. at the executive offices of Fort Bend, or at such other
date, time and location as is designated to by Fort Bend, provided in no event
will Closing occur prior to the third business day after satisfaction of all
conditions to Closing. The parties hereto agree to use their best efforts to
have the Closing take place on or before September 30, 1996. The date on which
the Closing actually occurs is herein referred to as the "Closing Date".
1.5 Reservation of Right to Revise Transaction. Fort Bend shall have the
unilateral right, subject to the approval of FirstBanc (which approval shall not
be unreasonably withheld or delayed), to change the method of effecting the
Merger (including without limitation the provisions of this Article I), to the
extent permitted by applicable law and to the extent it deems such change to be
desirable, provided, however, that no such change shall (i) alter or change the
amount or kind of the Merger Consideration or (ii) materially impede or delay
receipt of any approval referred to in Section 6.1(a) hereof or the consummation
of the Merger. Fort Bend may exercise this right of revision by giving written
notice thereof in the manner provided in Section 8.2 of this Agreement.
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ARTICLE II
REPRESENTATIONS, WARRANTIES
AND COVENANTS OF FIRSTBANC
FirstBanc represents and warrants to and covenants with Fort Bend and Fort
Bend Federal as follows:
2.1 Organization and Authority. FirstBanc is a capital stock savings and
loan association duly organized, validly existing and in good standing under the
laws of the State of Texas, is duly qualified to do business and is in good
standing in all jurisdictions where its ownership or leasing of property or the
conduct of its business requires it to be so qualified, except where the failure
to be so qualified would not have a material adverse effect on the financial
condition, assets, deposit liabilities, results of operations or business
(collectively, the "Condition") of FirstBanc, and has the corporate power and
authority to own its properties and assets and to carry on its business as it is
now being conducted. True and complete copies of the Articles of Incorporation
and Bylaws of FirstBanc, each as in effect on the date of this Agreement, are
set forth in Schedule 2.1 hereto. The deposits of FirstBanc are insured by the
Savings Association Insurance Fund ("SAIF") of the Federal Deposit Insurance
Corporation (the "FDIC"). FirstBanc is a member in good standing of the Federal
Home Loan Bank of Dallas (the "FHL Bank"). FirstBanc is a "domestic building and
loan association" as defined in Section 7701(a)(19) of the Internal Revenue Code
of 1986, as amended (the "Code").
2.2 Subsidiaries. FirstBanc has no subsidiaries. The term
"subsidiary" when used with respect to any party means any entity (including
without limitation any corporation, partnership, joint venture or other
organization, whether incorporated or unincorporated) which is consolidated with
such party for financial reporting purposes. Except as set forth on Schedule
2.2, there are no entities in which FirstBanc has a one percent or greater
direct or indirect equity, ownership or profit and loss interest. Except as set
forth on Schedule 2.2 and except for shares of stock of the FHL Bank, FirstBanc
does not own beneficially, directly or indirectly, any shares of any class of
Equity Securities (as hereinafter defined) or similar interests of any
corporation, bank, business trust, association or similar organization. Except
as set forth on Schedule 2.2, FirstBanc holds no interest in a partnership or
joint venture of any kind.
2.3 Capitalization. The authorized capital stock of FirstBanc
consists of 500,000 shares of FirstBanc Common Stock, of which, as of the date
hereof, 300,000 shares were issued and outstanding. Since April 30, 1995, no
Equity Securities of FirstBanc have been issued. Except as set forth above,
there are no other Equity Securities of FirstBanc outstanding. "Equity
Securities" of an issuer means capital stock or other equity securities of such
issuer, options, warrants, script, rights to subscribe to, calls or commitments
of any character whatsoever relating to, or securities or rights convertible
into, shares of any capital stock or other equity securities of such issuer, or
contracts, commitments, understandings or arrangements by which such issuer is
or may become bound to issue additional shares of its capital stock or other
equity securities of such issuer, or options, warrants, scrip or rights to
purchase, acquire, subscribe to, calls on or commitments for any shares of its
capital stock or other equity securities. All of the issued and outstanding
shares of FirstBanc Common Stock are validly issued, fully paid, and
nonassessable, and have not been issued in violation of any preemptive right of
any stockholder of FirstBanc.
2.4 Authorization.
(a) FirstBanc has the corporate power and authority to enter into this
Agreement and, subject to the approval of this Agreement and the Interim Merger
by the stockholders of
6
FirstBanc, to carry out its obligations hereunder. The only stockholder vote
required for FirstBanc to approve this Agreement and the Interim Merger is the
affirmative vote of the holders of at least a majority of the outstanding shares
of FirstBanc Common Stock entitled to vote at a meeting called for such purpose.
The execution, delivery and performance of this Agreement by FirstBanc and the
consummation by FirstBanc of the transactions contemplated hereby have been duly
authorized by the Board of Directors of FirstBanc. Subject to the approval of
FirstBanc's stockholders and subject to the receipt of such approvals of
Regulatory Authorities (as defined in Section 2.6) as may be required by statute
or regulation, this Agreement is a valid and binding obligation of FirstBanc,
enforceable against FirstBanc in accordance with its terms.
(b) Neither the execution, delivery or performance by FirstBanc of
this Agreement, nor the consummation by FirstBanc of the transactions
contemplated hereby, nor compliance by FirstBanc with any of the provisions
hereof, will (i) violate or conflict with any term, condition or provision of
its articles of incorporation or bylaws, (ii) violate, conflict with, or result
in a breach of any provisions of, or constitute a default (or an event which,
with notice or lapse of time or both, would constitute a default) under, or
result in the termination of, or accelerate the performance required by, or
result in a right of termination or acceleration of, or result in the creation
of any lien, claim, charge, option, encumbrance, agreement, mortgage, pledge,
security interest or restriction (each a "Lien") upon any of the material
properties or assets of FirstBanc under the terms, conditions or provisions of
any note, bond, mortgage, indenture, deed of trust, license, lease, agreement or
other instrument or obligation to which FirstBanc is a party or by which it may
be bound, or to which FirstBanc or any of their material properties or assets
may be subject, or (iii) subject to compliance with the statutes and regulations
referred to in subsection (c) of this Section 2.4, to the best knowledge of
FirstBanc (the "Best Knowledge of FirstBanc"), violate any judgment, ruling,
order, writ, injunction, decree, statute, rule or regulation applicable to
FirstBanc or any of their respective material properties or assets.
(c) Other than in connection or in compliance with the provisions of
the Texas Act, the Texas Rules, the TBCA, the Securities Act of 1933 and the
rules and regulations thereunder (the "Securities Act"), the Securities Exchange
Act of 1934 and the rules and regulations thereunder (the "Exchange Act"), the
securities or blue sky laws of the various states or filings, consents, reviews,
authorizations, approvals or exemptions required by the OTS under the Savings
and Loan Holding Company Act (the "Holding Company Act"), the Federal Deposit
Insurance Act (the "FDIA"), the HOLA and the Hart-Scott-Rodino Antitrust
Improvements Act of 1976 (the "HSR Act"), no notice to, filing with, exemption
or review by, or authorization, consent or approval of, any public body or
authority or any third party is necessary for the consummation by FirstBanc of
the transactions contemplated by this Agreement.
2.5 FirstBanc Financial Statements. The balance sheets of FirstBanc
as of April 30, 1995 and 1994, and the related statements of income, cash flows
and changes in stockholders' equity for each of the years in the three-year
period ended April 30, 1995, together with the notes thereto, audited by Coopers
& Lybrand LLP and provided to Fort Bend prior to the date hereof, and the
unaudited condensed balance sheets of FirstBanc as of June 30, September 30, and
December 31, 1995, and the related unaudited condensed statements of income,
cash flows and changes in stockholders' equity for the periods then ended,
included in FirstBanc's Thrift Financial Reports filed quarterly with the OTS
(each a "FirstBanc TFR") (collectively, the "FirstBanc Financial Statements"),
have been prepared in accordance with generally accepted accounting principles
applied on a consistent basis ("GAAP"), present fairly the financial position of
FirstBanc at such dates and the results of operations, cash flows and changes in
stockholders' equity of FirstBanc for the periods stated therein, and are
derived from the books and records of FirstBanc, which are complete and accurate
in all material respects and have been maintained
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in accordance with good business practices. FirstBanc has no material
contingent liabilities that are not described in the FirstBanc Financial
Statements.
2.6 FirstBanc Reports. Since January 1, 1993, FirstBanc has filed
all material reports, registrations and statements, together with any required
material amendments thereto, that it was required to file with (i) the Texas
Department, (ii) the OTS, (iii) the FHL Bank and the Federal Home Loan Bank
System (the "FHLBS"), (iv) the FDIC and (v) any other federal, state, municipal,
local or foreign government, securities, banking, savings and loan, insurance or
other governmental or regulatory authority and the agencies and staffs thereof
(the entities in the foregoing clauses (i) through (v) being referred to herein
collectively as the "Regulatory Authorities" and individually as a "Regulatory
Authority"). All such reports and statements filed with any such Regulatory
Authority are collectively referred to herein as the "FirstBanc Reports." As of
its respective date, each FirstBanc Report complied in all material respects
with all of the rules and regulations promulgated by the applicable Regulatory
Authority and did not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they were
made, not misleading.
2.7 Properties and Leases. Except (i) as may be reflected in the
FirstBanc Financial Statements and (ii) any Lien for current taxes not yet
delinquent, FirstBanc has good title free and clear of any Lien to all the real
and personal property reflected in FirstBanc's balance sheet as of December 31,
1995, included in the most recent FirstBanc TFR previously provided to Fort Bend
and, in each case, all real and personal property acquired since such date,
except such real and personal property as has been disposed of since such date
for fair value in the ordinary course of business. All leases pursuant to which
FirstBanc is a lessee or lessor of real or personal property are valid and
effective in accordance with their respective terms, and there is not, under any
of such leases, any existing default by FirstBanc or any event which, with
notice or lapse of time or both, would constitute a default by FirstBanc. All
of FirstBanc's buildings, structures and equipment in regular use have been well
maintained and are in good and serviceable condition, normal wear and tear
excepted. None of the buildings, structures and equipment of FirstBanc violates
or fails to comply in any material respect with any applicable health, fire,
environmental, safety, zoning or building laws or ordinances or any restrictive
covenant pertaining thereto.
2.8 Taxes. Except as set forth on Schedule 2.8, FirstBanc has timely
filed or will timely (including extensions) file all tax returns and reports
required to be filed at or prior to the Closing Date ("FirstBanc Returns").
FirstBanc has paid, or set up adequate reserves on the FirstBanc Financial
Statements for the payment of, all taxes required to be paid in respect of the
periods covered by such returns and reports and will continue to set up adequate
reserves on its future financial statements. FirstBanc has made the payment of
all taxes anticipated to be payable in respect of all periods up to and
including the latest period covered by the FirstBanc Financial Statements.
FirstBanc will not have any material liability for any such taxes in excess of
the amounts so paid or reserves so established and no deficiencies for any tax,
assessment or governmental charge have been proposed, asserted or assessed
(tentatively or definitely) against FirstBanc which would not be covered by
existing reserves. Except as set forth on Schedule 2.8, FirstBanc is not
delinquent in the payment of any tax, assessment or governmental charge, nor has
it requested any extension of time within which to file any tax returns in
respect of any fiscal year which have not since been filed and no requests for
waivers of the time to assess any tax are pending. The federal income tax
returns and state franchise tax returns of FirstBanc have been audited by the
Internal Revenue Service (the "IRS") or appropriate state tax authorities with
respect to those periods and jurisdictions set forth on Schedule 2.8. There is
no deficiency or refund litigation or matter in controversy with respect to
FirstBanc Returns. Except as set forth on Schedule 2.8, FirstBanc (i) has not
extended or waived any statute of limitations on the assessment of any tax due;
(ii) is not required to include in income any adjustment pursuant to Section
481(a) of the Code, by reason of a
8
voluntary change in accounting method (nor to the Best Knowledge of FirstBanc
has the IRS proposed any such adjustment or change of accounting method) and
(iii) has not filed a consent pursuant to Section 341(f) of the Code or agreed
to have Section 341(f)(2) of the Code apply.
2.9 Material Adverse Change. Except as set forth on Schedule 2.9,
since April 30, 1995, there has been no material adverse change in the Condition
of FirstBanc except as may have resulted or may result from changes to laws and
regulations.
2.10 Commitments and Contracts.
(a) Except as set forth on Schedule 2.10 (and with a true and correct
copy of the document or other item in question attached to such Schedule),
FirstBanc is not a party or subject to any of the following (whether written or
oral, express or implied):
(i) any agreement, arrangement or commitment (A) not made in
the ordinary course of business or (B) pursuant to which FirstBanc is or may
become obligated to invest in or contribute capital to any entity;
(ii) any agreement, indenture or other instrument not disclosed
in the FirstBanc Financial Statements relating to the borrowing of money by
FirstBanc or the guarantee by FirstBanc of any such obligation (other than
deposits, Fed Funds borrowings, FHL Bank advances and repurchase agreements);
(iii) any contract, agreement or understanding with any labor
union or collective bargaining organization;
(iv) any contract containing covenants which limit the ability
of FirstBanc to compete in any line of business or with any person or containing
any restriction of the geographical area in which, or method by which, FirstBanc
may carry on its business (other than as may be required by law or any
applicable Regulatory Authority);
(v) any agreement, contract or commitment (other than loans and
deposits) with a term in excess of six months which is not terminable by
FirstBanc on 30 days or less written notice without penalty or premium and which
involves a monetary obligation on the part of FirstBanc in excess of $10,000; or
(vi) any other contract or agreement which is a "material
contract" within the meaning of Item 601(b)(10) of Regulation S-K promulgated by
the Securities and Exchange Commission ("SEC").
(b) FirstBanc is not in violation of its articles of incorporation or
bylaws; or in default under any agreement, commitment, arrangement, lease,
insurance policy, or other instrument, whether entered into in the ordinary
course of business or otherwise and whether written or oral, and there has not
occurred any event that, with the lapse of time or giving of notice or both,
would constitute such a default.
2.11 Litigation and Other Proceedings. Other than as set forth on
Schedule 2.11, FirstBanc is not a party to any pending or, to the Best Knowledge
of FirstBanc, threatened claim, action, suit, investigation or proceeding, or is
subject to any order, judgment or decree, except for matters which do not
involve a claim for damages for more than $10,000, but not excepting any
actions, suits or
9
proceedings which purport or seek to enjoin or restrain the transactions
contemplated by this Agreement or that seeks non-monetary relief. Without
limiting the generality of the foregoing, except as set forth on Schedule 2.11
there are no actions, suits, or proceedings pending or, to the Best Knowledge of
FirstBanc, threatened against FirstBanc or any of its officers or directors by
any stockholder of FirstBanc (or any former stockholder of FirstBanc) or
involving claims under any state or federal securities laws, the Community
Reinvestment Act of 1977 (the "CRA") or the fair lending laws.
2.12 Insurance. FirstBanc has taken all requisite action (including
without limitation the making of claims and the giving of notices) pursuant to
its directors' and officers' liability insurance policy or policies in order to
preserve all rights thereunder with respect to all matters (other than matters
arising in connection with this Agreement and the transactions contemplated
hereby) occurring prior to the Interim Merger Effective Time that are known to
FirstBanc. Set forth on Schedule 2.12 is a list of all insurance policies
(excluding policies maintained on one- to four-family residential properties
acquired through foreclosure) maintained by or for the benefit of FirstBanc or
its directors, officers, employees or agents. During the last five years,
FirstBanc has not had an insurance policy canceled or been denied insurance
coverage for which it has applied.
2.13 Compliance with Laws.
(a) FirstBanc has all permits, licenses, authorizations, orders and
approvals of, and has made all filings, applications and registrations with, all
Regulatory Authorities that are required in order to permit it to own or lease
its properties and assets and to carry on its business as presently conducted
and that are material to the business of FirstBanc; all such permits, licenses,
authorizations, orders and approvals are in full force and effect and, to the
Best Knowledge of FirstBanc, no suspension or cancellation of any of them is
threatened; and all such filings, applications and registrations are current.
(b) (i) Except as set forth in Schedule 2.13B, FirstBanc has
complied in all material respects with all laws, regulations and orders
(including without limitation zoning ordinances, building codes, the Employee
Retirement Income Security Act of 1974 ("ERISA"), and securities, tax,
environmental, civil rights, and occupational health and safety laws and
regulations, and including without limitation, all statutes, rules, regulations
and policy statements pertaining to the conduct of a savings association,
deposit-taking, lending or related business, or to the exercise of trust powers)
and governing instruments applicable to it and to the conduct of its business,
and (ii) FirstBanc is not in default under, and no event has occurred which,
with the lapse of time or notice or both, could result in a default under, the
terms of any judgment, order, writ, decree, permit, or license of any Regulatory
Authority or court, whether federal, state, municipal, or local and whether at
law or in equity. FirstBanc is not subject to or reasonably likely to incur a
liability as a result of its past or present ownership, operation, or use of any
Property (as defined below) of FirstBanc (whether directly or, to the Best
Knowledge of FirstBanc, as a consequence of such Property being part of the
investment portfolio of FirstBanc) (A) that is contaminated by or contains any
hazardous waste, toxic substance, or related materials, including without
limitation asbestos, PCBs, pesticides, herbicides, and any other substance or
waste that is hazardous to human health or the environment (collectively, a
"Toxic Substance"), or (B) on which any Toxic Substance has been stored,
disposed of, placed, or used in the construction thereof. "Property" of a
person shall include all property (real or personal, tangible or intangible)
owned, leased or controlled by such person, including without limitation
property under foreclosure, property held by such person or any Subsidiary of
such person in its capacity as a trustee and property in which any venture
capital or similar unit of such person or any Subsidiary of such person has an
interest. No claim, action, suit, or proceeding is pending against FirstBanc
relating to Property of FirstBanc
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before any court or other Regulatory Authority or arbitration tribunal relating
to any toxic substance or the environment, and there is no outstanding judgment,
order, writ, injunction, decree, or award against or affecting FirstBanc with
respect to the same. Except for statutory or regulatory restrictions of general
application, no Regulatory Authority has placed any restriction on the business
of FirstBanc.
(c) Except as set forth in Schedule 2.13C, since April 30, 1995,
FirstBanc has not received any notification or communication as to any matter
which has not been resolved from any Regulatory Authority (i) asserting that
FirstBanc is not in substantial compliance with any of the statutes, regulations
or ordinances that such Regulatory Authority enforces, (ii) threatening to
revoke any license, franchise, permit or governmental authorization that is
material to FirstBanc, including without limitation FirstBanc' status as an
insured depositary institution under the FDIA, (iii) requiring or threatening to
require FirstBanc, or indicating that FirstBanc may be required, to enter into a
cease and desist order, agreement or memorandum of understanding or any other
agreement restricting or limiting or purporting to direct, restrict or limit in
any manner the operations of FirstBanc, including without limitation any
restriction on the payment of dividends. No such cease and desist order,
agreement or memorandum of understanding or other agreement is currently in
effect, other than as set forth in Schedule 2.13C.
(d) FirstBanc is required by Section 32 of the FDIA to give prior
notice to any federal banking agency of the proposed addition of an individual
to its board of directors or the employment of an individual as a senior
executive officer, and has provided any such prior notice as appropriate.
2.14 Labor. No work stoppage involving FirstBanc is pending or, to
the Best Knowledge of FirstBanc, threatened. FirstBanc is not involved in, or,
to the Best Knowledge of FirstBanc, threatened with or affected by, any labor
dispute, arbitration, lawsuit or administrative proceeding. No employees of
FirstBanc are represented by any labor union or any collective bargaining
organization.
2.15 Material Interests of Certain Persons.
(a) Except as set forth on Schedule 2.15A, to the Best Knowledge of
FirstBanc, no officer or director of FirstBanc, or any "associate" (as such term
is defined in Rule 14a-1 under the Exchange Act) of any such officer or
director, has any material interest in any material contract or property (real
or personal, tangible or intangible), used in or pertaining to the business of
FirstBanc, which would be required to be disclosed by Item 404 of Regulation S-K
promulgated by the SEC if FirstBanc had a class of securities registered under
Section 12 of the Exchange Act.
(b) Except as set forth on Schedule 2.15B, there are no loans in
excess of $25,000 from FirstBanc to any present officer, director, employee or
any associate or related interest of any such person which was or would be
required under any rule or regulation to be approved by or reported to
FirstBanc's Board of Directors ("Insider Loans"). All outstanding Insider Loans
from FirstBanc were approved by or reported to FirstBanc's Board of Directors in
accordance with applicable law and regulations.
2.16 Allowance for Loan Losses; Nonperforming Assets.
(a) The allowance for loan losses contained in the FirstBanc Financial
Statements were established in accordance with the past practices and
experiences of FirstBanc, and the
11
allowance for loan losses shown on the condensed balance sheet of FirstBanc
contained in the most recent FirstBanc TFR previously provided to Fort Bend is
adequate under the requirements of GAAP and the rules, regulations and policies
of the Texas Department and the OTS to provide for possible losses on loans
(including without limitation accrued interest receivable) and credit
commitments (including without limitation stand-by letters of credit)
outstanding as of the date of such balance sheet.
(b) The sum of the aggregate amount of all Nonperforming Assets (as
defined below) and all troubled debt restructurings (as defined under GAAP) on
the books of FirstBanc does not exceed $1,750,000. "Nonperforming Assets" shall
mean (A) loans and leases classified as nonperforming, (B) assets classified as
real estate owned and other assets acquired through foreclosure, including in-
substance foreclosed real estate, and (C) loans and leases that are on non-
accrual status, in each case under the definitions applied by the Texas
Department, the OTS and under GAAP, as appropriate. Schedule 2.16B lists all
Nonperforming Assets as of the date of this Agreement.
2.17 Employee Benefit Plans.
(a) Schedule 2.17A lists all pension, retirement, supplemental
retirement, stock option, stock purchase, stock ownership, savings, stock
appreciation right, profit sharing, employment, deferred compensation,
consulting, bonus, medical, disability, workers' compensation, vacation, group
insurance, severance and other employee benefit, incentive and welfare policies,
contracts, plans and arrangements, and all trust or loan agreements or
arrangements related thereto, maintained, sponsored or contributed to by
FirstBanc in respect of any of the present or former directors, officers, or
other employees of and/or consultants to FirstBanc (collectively, "FirstBanc
Employee Plans"). The following documents with respect to each FirstBanc
Employee Plan are included in Schedule 2.17A: (i) a true and complete copy of
all written documents comprising such FirstBanc Employee Plan (including
amendments and individual agreements relating thereto) or, if there is no such
written document, an accurate and complete description of the FirstBanc Employee
Plan; (ii) the most recent and two prior years Forms 5500 or Forms 5500-C/R
(including all schedules thereto), if applicable; (iii) the most recent
financial statements and actuarial reports, if any; (iv) the summary plan
description currently in effect and all material modifications thereof, if any;
and (v) the most recent IRS determination letter, if any.
(b) Except as set forth in Schedule 2.17B, all FirstBanc Employee
Plans have been maintained and operated in accordance with their terms and with
the requirements of all applicable statutes, orders, rules and final
regulations, including without limitation ERISA and the Code. All contributions
required to be made to FirstBanc Employee Plans have been made.
(c) Except as set forth in Schedule 2.17C, with respect to each of the
FirstBanc Employee Plans which is a pension plan (as defined in Section 3(2) of
ERISA) (the "Pension Plans"): (i) each Pension Plan which is intended to be
"qualified" within the meaning of Section 401(a) of the Code is so qualified
and, to the extent a determination letter has been received from the IRS with
respect to any such Pension Plan, such determination letter may still be relied
upon, and each related trust is exempt from taxation under Section 501(a) of the
Code; (ii) there has been no "prohibited transaction," as such term is defined
in Section 4975 of the Code or Section 406 of ERISA, which could subject any
Pension Plan or associated trust, or, to the Best Knowledge of FirstBanc,
FirstBanc, to any tax or penalty; (iii) no Pension Plan or any trust created
thereunder has been terminated; and (iv) no Pension Plan or any trust created
thereunder
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has incurred any "accumulated funding deficiency", as such term is defined in
Section 302 of ERISA (whether or not waived). No Pension Plan is a
"multiemployer plan" as that term is defined in Section 3(37) of ERISA. With
respect to each Pension Plan that is described in Section 4063(a) of ERISA: (i)
FirstBanc would not have any liability or obligation to post a bond under
Section 4063 of ERISA if FirstBanc was to withdraw from such Plan; and (ii)
FirstBanc would not have any liability under Section 4064 of ERISA if such Plan
were to terminate.
(d) At no time has First Banc maintained or sponsored a defined
benefit Pension Plan.
(e) FirstBanc has no liability for any post-retirement health, medical
or similar benefit of any kind whatsoever, except as required by statute or
regulation, except with respect to Ms. Diane Martz, a former FirstBanc employee.
(f) FirstBanc has no liability under ERISA or the Code as a result of
its being a member of a group described in Sections 414(b), (c), (m) or (o) of
the Code.
(g) FirstBanc has no material liability under the continuation of
health care provisions of the Consolidated Omnibus Budget Reconciliation Act of
1985 or any comparable state law, and has satisfied its obligations under such
laws.
(h) Except as set forth on Schedule 2.17H, neither the execution nor
delivery of this Agreement, nor the consummation of any of the transactions
contemplated hereby, will (i) result in any material payment (including without
limitation severance, unemployment compensation or golden parachute payment)
becoming due from FirstBanc or any successor in interest due to any director or
employee of FirstBanc, (ii) increase any benefit otherwise payable under any of
the FirstBanc Employee Plans or (iii) result in the acceleration of the time of
payment of any such benefit. No amounts paid or payable by FirstBanc or its
successor in interest to or with respect to any employee or former employee of
FirstBanc will fail to be deductible for federal income tax purposes by reason
of Section 280G or 162(m) of the Code or otherwise.
2.18 Conduct to Date. From and after April 30, 1995 through the date
of this Agreement, except as set forth on Schedule 2.18 or in FirstBanc
Financial Statements: (i) FirstBanc has conducted its business in the ordinary
and usual course consistent with past practices; (ii) FirstBanc has not issued,
sold, granted, conferred or awarded any of its Equity Securities, or any
corporate debt securities which would be classified under GAAP as long-term debt
on the balance sheets of FirstBanc; (iii) FirstBanc has not effected any stock
split or adjusted, combined, reclassified or otherwise changed its
capitalization; (iv) FirstBanc has not declared, set aside or paid any dividend
or other distribution in respect of its capital stock, or purchased, redeemed,
retired, repurchased, or exchanged, or otherwise acquired or disposed of,
directly or indirectly, any of its Equity Securities, whether pursuant to the
terms of such Equity Securities or otherwise; (v) FirstBanc has not incurred any
material obligation or liability (absolute or contingent), except normal trade
or business obligations or liabilities incurred in the ordinary course of
business, or subjected to Lien any of its assets or properties other than in the
ordinary course of business consistent with past practice; (vi) FirstBanc has
not discharged or satisfied any material Lien or paid any material obligation or
liability (absolute or contingent), other than in the ordinary course of
business; (vii) FirstBanc has not sold, assigned, transferred, leased,
exchanged, or otherwise disposed of any of its properties or assets other than
for a fair consideration in the ordinary course of business; (viii) except as
required by contract or law, FirstBanc has not (A) increased the rate of
compensation of, or paid any bonus to, any of its directors, officers, or other
employees, except merit or promotion increases in accordance with existing
policy, (B) entered into any new, or amended or supplemented any existing,
employment, management, consulting, deferred compensation, severance, or other
similar contract, (C)
13
entered into, terminated, or substantially modified any of the FirstBanc
Employee Plans or (D) agreed to do any of the foregoing; (ix) FirstBanc has not
suffered any material damage, destruction, or loss, whether as the result of
fire, explosion, earthquake, accident, casualty, labor trouble, requisition, or
taking of property by any Regulatory Authority, flood, windstorm, embargo, riot,
act of God or the enemy, or other casualty or event, and whether or not covered
by insurance; (x) FirstBanc has not canceled or compromised any debt, except for
debts charged off or compromised in accordance with the past practice of
FirstBanc; (xi) FirstBanc has not entered into any material transaction,
contract or commitment outside the ordinary course of its business; and (xii)
FirstBanc has not made or guaranteed any loan to any of the FirstBanc Employee
Plans.
2.19 Proxy Statement, etc. None of the information regarding
FirstBanc supplied or to be supplied by FirstBanc for inclusion or included in
(i) the proxy statement to be mailed to the stockholders or FirstBanc in
accordance with Section 5.3 (the "Proxy Statement") or (ii) any other documents
to be filed with any Regulatory Authority in connection with the transactions
contemplated hereby will, at the respective times such documents are filed with
any Regulatory Authority and, with respect to the Proxy Statement, when mailed,
be false or misleading with respect to any material fact, or omit to state any
material fact necessary in order to make the statements therein not misleading
or, in the case of the Proxy Statement or any amendment thereof or supplement
thereto, at the time of the meeting of FirstBanc's stockholders referred to in
Section 5.3, be false or misleading with respect to any material fact, or omit
to state any material fact necessary to correct any statement in any earlier
communication with respect to the solicitation of any proxy for such meeting.
All documents which FirstBanc is responsible for filing with any Regulatory
Authority in connection with the Merger will comply as to form in all material
respects with the provisions of applicable law.
2.20 Registration Obligations. FirstBanc is not under any
obligation, contingent or otherwise, which will survive the Interim Merger
Effective Time by reason of any agreement to register any of its securities
under the Securities Act or any state blue sky laws.
2.21 Takeover Provisions Not Applicable. The transactions
contemplated by this Agreement are exempt from any applicable state takeover
law, and FirstBanc has taken or will take all steps necessary so that any
takeover provisions in the articles of incorporation or bylaws of FirstBanc will
not apply to the Voting Agreements, the Agreement Not to Compete, this Agreement
or any of the transactions contemplated hereby or thereby.
2.22 Regulatory Matters. FirstBanc has not taken or agreed to take
any action or has any knowledge or any fact or circumstance that would
materially impede or delay receipt of any approval referred to in Section 6.1(a)
hereof or the consummation of the transactions contemplated by this Agreement.
2.23 Brokers and Finders. Neither FirstBanc nor any of its officers,
directors or employees has employed any broker or finder or incurred any
liability for any financial advisory fees, brokerage fees, commissions or
finder's fees, and no broker or finder has acted directly or indirectly for
FirstBanc, in connection with this Agreement or the transactions contemplated
hereby.
2.24 Accuracy of Information. The statements of FirstBanc contained
in this Agreement, the Schedules hereto and any other written document executed
and delivered by or on behalf of FirstBanc pursuant to the terms of this
Agreement are true and correct in all material respects, and such statements and
documents do not omit any material fact necessary to make the statements
contained therein not misleading.
14
2.25 Community Reinvestment Act Compliance. FirstBanc is in material
compliance with the applicable provisions of the CRA and the regulations
promulgated thereunder, and FirstBanc currently has a CRA rating of satisfactory
or better from the OTS. To the Best Knowledge of FirstBanc, there is no fact or
circumstance or set of facts or circumstances which would cause FirstBanc to
fail to comply with such provisions or cause the CRA rating of FirstBanc to fall
below satisfactory.
ARTICLE III
REPRESENTATIONS, WARRANTIES AND COVENANTS
OF FORT BEND AND FORT BEND FEDERAL
Fort Bend and Fort Bend Federal represent and warrant to and covenant with
FirstBanc as follows:
3.1 Organization and Authority. Fort Bend and each of its
subsidiaries is a corporation, savings and loan association or other entity duly
organized, validly existing and in good standing under the laws of its
jurisdiction of organization, is duly qualified to do business and is in good
standing in all jurisdictions where its ownership or leasing of property or the
conduct of its business requires it to be so qualified and has the corporate
power and authority to own its properties and assets and to carry on its
business as it is now being conducted, except, in the case of its subsidiaries,
where the failure to be so qualified would not have a material adverse effect on
the Condition of Fort Bend and its subsidiaries, taken as a whole. Fort Bend is
registered as a savings and loan holding company with the OTS under the HOLA.
True and complete copies of the Certificate of Incorporation and Bylaws of Fort
Bend and of the Charter and Bylaws of Fort Bend Federal, each as in effect on
the date of this Agreement, are set forth in Schedule 3.1.
3.2 Capitalization of Fort Bend. The authorized capital stock of
Fort Bend consists of (i) 2,000,000 shares of Fort Bend Common Stock, of which,
as of December 31, 1995, 828,703 shares were issued and outstanding and (ii)
500,000 shares of preferred stock, issuable in series, none of which, on such
date, were issued or outstanding. In addition, as of December 31, 1995, Fort
Bend had reserved 560,182 shares of Fort Bend Common Stock for issuance upon
conversion of $12,100,000 aggregate principal amount of 8% Convertible
Subordinated Debentures due December 1, 2005 (the "Convertible Debentures"). As
of December 31, 1995, Fort Bend had reserved 51,139 shares of Fort Bend Common
Stock for issuance upon the exercise of options ("Fort Bend Stock Options")
under the Fort Bend stock option and incentive plan. From December 31, 1995
through the date of this Agreement, no other Equity Securities of Fort Bend have
been issued, excluding any Fort Bend Stock Options and shares of Fort Bend
Common Stock which may have been issued upon exercise of Fort Bend Stock Options
or conversion of the Convertible Debentures. Fort Bend and its subsidiaries
continually evaluate possible acquisitions and may prior to the Interim Merger
Effective Time enter into one or more agreements providing for, and may
consummate, the acquisition of another savings bank or other company (or the
assets thereof) for consideration that may include Equity Securities. In
addition, prior to the Interim Merger Effective Time, Fort Bend and its
subsidiaries may, depending on market conditions and other factors, otherwise
determine to issue equity, equity-linked or other securities for financing,
employee benefit or other purposes. In addition, subsequent to December 31,
1995, Fort Bend repurchased shares of Fort Bend Common Stock pursuant to an
ongoing stock repurchase program and, prior to the Interim Merger Effective
Time, may repurchase additional shares of Fort Bend Common Stock, subject to
market conditions, the Thrift Regulations and other factors deemed relevant by
the Board of Directors and management of Fort Bend. Notwithstanding any of the
foregoing, Fort Bend will not take any action that would materially impede or
delay receipt of any approval referred to in Section 6.1(a) hereof or the
consummation of the
15
transactions contemplated by this Agreement. Except as discussed above, there
are no other Equity Securities of Fort Bend outstanding on the date hereof.
3.3 Authorization.
(a) Fort Bend and Fort Bend Federal have the corporate power and
authority to enter into this Agreement and to carry out their obligations
hereunder. The execution, delivery and performance of this Agreement by Fort
Bend and Fort Bend Federal and the consummation by Fort Bend and Fort Bend
Federal of the transactions contemplated hereby have been duly authorized by all
requisite corporate action of Fort Bend and Fort Bend Federal and subject to the
receipt of such approvals of the Regulatory Authorities as may be required by
statute or regulation, will be a valid and binding obligation of Fort Bend and
Fort Bend Federal enforceable against Fort Bend and Fort Bend Federal in
accordance with its terms.
(b) Neither the execution, delivery or performance by each of Fort
Bend and Fort Bend Federal of this Agreement, nor the consummation by each of
Fort Bend and Fort Bend Federal of the transactions contemplated hereby, nor
compliance by each of Fort Bend and Fort Bend Federal with any of the provisions
hereof, will (i) violate or conflict with any term, condition or provision of
its Certificate of Incorporation, charter or bylaws, (ii) violate, conflict with
or result in a breach of any provisions of, or constitute a default (or an event
which, with notice or lapse of time or both, would constitute a default) or
result in the termination of, or accelerate the performance required by, or
result in a right of termination or acceleration of, or result in the creation
of, any Lien upon any of the material properties or assets of Fort Bend or any
of its subsidiaries under any of the terms, conditions or provisions of (x) its
articles or certificate of incorporation, charter or bylaws, or (y) any material
note, bond, mortgage, indenture, deed of trust, license, lease, agreement or
other instrument or obligation to which Fort Bend or any of its subsidiaries is
a party or by which it may be bound, or to which Fort Bend or any of its
subsidiaries or any of their material property or assets may be subject, or (ii)
subject to compliance with the statutes and regulations referred to in
subsection (c) of this Section 3.3, to the best knowledge of Fort Bend and Fort
Bend Federal (collectively, the "Best Knowledge of Fort Bend"), violate any
judgment, ruling, order, writ, injunction, decree, statute, rule or regulation
applicable to Fort Bend or any of its subsidiaries or any of their respective
material properties or assets.
(c) Other than in connection with or in compliance with the provisions
of the Texas Act, the TBCA, the Securities Act, the Exchange Act, the securities
or blue sky laws of the various states or filings, consents, reviews,
authorizations, approvals or exemptions required under the Holding Company Act,
the FDIA, the HOLA and the HSR Act, or any required approvals of any other
Regulatory Authority, no notice to, filing with, exemption or review by, or
authorization, consent or approval of, any public body or authority or third
party is necessary for the consummation by Fort Bend or Fort Bend Federal of the
transactions contemplated by this Agreement.
3.4 Fort Bend Financial Statements. The consolidated balance sheets
of Fort Bend and the Fort Bend Subsidiaries as of March 31, 1995 and 1994 and
related consolidated statements of income, cash flows and changes in
stockholders' equity for each of the three years in the three-year period ended
March 31, 1995, together with the notes thereto, audited by Coopers & Lybrand
LLP, and the unaudited consolidated condensed balance sheets of Fort Bend and
its subsidiaries as of June 30, September 30, and December 31, 1995, and the
related unaudited consolidated condensed statements of income, cash flows and
changes in stockholders' equity for the periods then ended, included in
quarterly reports on
16
Form 10-QSB (each a "Fort Bend Form 10-Q") as filed with the SEC (collectively,
the "Fort Bend Financial Statements"), have been prepared in accordance with
GAAP, present fairly the consolidated financial position of Fort Bend and its
subsidiaries at such dates, and the consolidated results of operations, cash
flows and changes in stockholders' equity of Fort Bend and its subsidiaries for
the periods stated therein and are derived from the books and records of Fort
Bend and its subsidiaries, which are complete and accurate in all material
respects and have been maintained in accordance with good business practices.
3.5 Fort Bend Reports. Since March 31, 1993, each of Fort Bend and
Fort Bend Federal has filed all material reports, registrations and statements,
together with any required material amendments thereto, that it was required to
file with any Regulatory Authority. All such reports and statements filed with
any such Regulatory Authority are collectively referred to herein as the "Fort
Bend Reports." As of its respective date, each Fort Bend Report complied in all
material respects with all the rules and regulations promulgated by the
applicable Regulatory Authority and did not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading.
3.6 Material Adverse Change. Since March 31, 1995, there has been no
adverse change in the Condition of Fort Bend and its subsidiaries, taken as a
whole, that would adversely effect the ability of Fort Bend to make payment of
the Merger Consideration.
3.7 Proxy Statement, etc. None of the information regarding Fort
Bend or any of its subsidiaries supplied or to be supplied by Fort Bend for
inclusion or included in the Proxy Statement or any other documents to be filed
with any Regulatory Authority in connection with the transactions contemplated
hereby will, at the respective times such documents are filed with any
Regulatory Authority and, with respect to the Proxy Statement, when mailed, be
false or misleading with respect to any material fact, or omit to state any
material fact necessary in order to make the statements therein not misleading
or, in the case of the Proxy Statement or any amendment thereof or supplement
thereto, at the time of the meeting of stockholders referred to in Section 5.3,
be false or misleading with respect to any material fact, or omit to state any
material fact necessary to correct any statement in any earlier communication
with respect to the solicitation of any proxy for such meeting. All documents
which Fort Bend or Fort Bend Federal are responsible for filing with any
Regulatory Authority in connection with the Merger will comply as to form in all
material respects with the provisions of applicable law.
3.8 Brokers and Finders. Other than with respect to the engagement
of Charles Webb & Company, neither Fort Bend nor any of its subsidiaries nor any
of their respective officers, directors or employees has employed any broker or
finder or incurred any liability for any financial advisory fees, brokerage
fees, commissions or finder's fees, and no broker or finder has acted directly
or indirectly for Fort Bend or any of its subsidiaries, in connection with this
Agreement or the transactions contemplated hereby. Any fees determined to be
due and owing as a result of the engagement of Charles Webb & Company shall be
the sole responsibility of Fort Bend.
3.9 Accuracy of Information. The statements of Fort Bend and Fort
Bend Federal contained in this Agreement, the Schedules hereto and in any other
written document executed and delivered by or on behalf of Fort Bend pursuant to
the terms of this Agreement are true and correct in all material respects, and
such statements and documents do not omit any material fact necessary to make
the statements contained herein or therein not misleading.
3.10 Available Funds. As of the Interim Merger Effective Time, Fort
Bend will have available to it sufficient readily available funds to satisfy its
obligations under Section 1.3 of this Agreement.
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ARTICLE IV
CONDUCT OF BUSINESSES PRIOR TO THE INTERIM MERGER EFFECTIVE TIME
4.1 Conduct of Businesses Prior to the Interim Merger Effective Time.
During the period from the date of this Agreement to the Interim Merger
Effective Time, FirstBanc shall conduct its business only in the ordinary and
usual course consistent with past practices and shall use its best efforts to
maintain and preserve its business organization, employees and advantageous
business relationships and retain the services of its officers and key
employees.
4.2 Forbearances. During the period from the date of this Agreement
to the Interim Merger Effective Time, FirstBanc shall not, without the prior
written consent of Fort Bend (which, with respect to subsections (d), (g), (j)
and (k) below, shall not be unreasonably withheld):
(a) declare, set aside or pay any dividends or other distributions,
directly or indirectly, in respect of its capital stock;
(b) enter into or amend any employment, severance, consulting or
similar agreement or arrangement with any director or officer or employee, or
modify any of the FirstBanc Employee Plans (except as set forth in Section 5.8
of this Agreement) or permit any Employee Plan to incur indebtedness for
borrowed funds or grant any salary, wage, fee or other increase in compensation,
or increase any benefit to an employee or other agent (including incentive or
bonus payments and consulting bonuses or fees), except normal individual
increases in compensation of employees (but not directors or executive
officers), in each case and in the aggregate consistent with past practice or to
the extent required by law;
(c) authorize, recommend, propose or announce an intention to
authorize, so recommend or propose, or enter into an agreement in principle with
respect to, any merger, consolidation or business combination (other than the
Merger), any acquisition of a material amount of assets or securities, any
disposition of a material amount of assets or securities or any release or
relinquishment of any material contract rights;
(d) propose or adopt any amendments to its articles of incorporation
or bylaws;
(e) issue, sell, grant, confer or award any of its Equity Securities
or effect any stock split or adjust, combine, reclassify or otherwise change its
capitalization as it exists on the date of this Agreement;
(f) purchase, redeem, retire, repurchase, or exchange, or otherwise
acquire or dispose of, directly or indirectly, any of its Equity Securities,
whether pursuant to the terms of such Equity Securities or otherwise;
(g) enter into or increase any loan or credit commitment (including
stand-by letters of credit) to, or invest or agree to invest in, any person or
entity or modify any of the material provisions or renew or otherwise extend the
maturity date of any existing loan or credit commitment (collectively, "Lend
to") in an amount in excess of $250,000, provided that FirstBanc may make any
such loan in the event (A) FirstBanc has delivered to Fort Bend or its
designated representative a notice of its intention to make such loan and such
information as Fort Bend or
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its designated representative may reasonably require in respect thereof and (B)
Fort Bend or its designated representative shall not have objected to such loan
by giving written or facsimile notice of such objection within two business days
following the delivery to Fort Bend of the notice of intention and information
as aforesaid, and provided further that no such consent shall be required in
respect of single-family residential loans or credits not exceeding $250,000
that are saleable in recognized secondary markets pursuant to FirstBanc's
lending policies as in effect on the date hereof; (ii) enter into, or increase
in an amount in excess of $100,000, any commercial or multi-family real estate
loan or credit commitment (including stand-by letters of credit) to, or invest
or agree to invest in, any commercial or multi-family real estate project or
entity, or Lend to any person other than in accordance with lending policies as
in effect on the date hereof, provided that FirstBanc may make any such loan in
the event (A) FirstBanc has delivered to Fort Bend or its designated
representative a notice of its intention to make such loan and such information
as Fort Bend or its designated representative may reasonably require in respect
thereof and (B) Fort Bend or its designated representative shall not have
objected to such loan by giving written or facsimile notice of such objection
within two business days following the delivery to Fort Bend of the notice of
intention and information as aforesaid; (iii) Lend to any person or entity, any
of the loans or other extensions of credit to which or investments in which are
on a "watch list" or similar internal report of FirstBanc (except those denoted
"pass" or similar notation thereon), in an amount in excess of $20,000; or (iv)
enter into any agreement or engage in any transaction which reasonably could be
construed as materially affecting the asset/liability management or interest
rate risk management position of FirstBanc (in this regard, FirstBanc shall
promptly telecopy to Fort Bend copies of all FirstBanc loan and deposit pricing
reports as well as summaries of any proposed asset sales and secondary market
transactions as soon as they are identified); provided, however, that nothing in
this paragraph shall prohibit FirstBanc from honoring any contractual obligation
in existence on the date of this Agreement or, with respect to loans described
in clause (i) above, making such loans after consent by Fort Bend and further
provided that in no event shall Fort Bend lend to any person or entity when Fort
Bend objected to such loan by First Banc;
(h) (i) directly or indirectly (including through its officers,
directors, employees or other representatives) initiate, solicit or encourage
any discussions, inquiries or proposals with any third party relating to (A) a
merger or consolidation, or any similar transaction, involving FirstBanc, (B) a
purchase, lease or other acquisition of all or substantially all of the assets
of FirstBanc or (C) a purchase or other acquisition (including by way of merger,
consolidation, share exchange or otherwise) of securities representing 10% or
more of the voting power of FirstBanc (each such transaction being referred to
herein as an "Acquisition Transaction"; provided that the term "Acquisition
Transaction" does not include any internal merger or consolidation involving
only FirstBanc), or (ii) except to the extent that the fulfillment of the
fiduciary duties of FirstBanc's directors requires such action, as so advised in
writing by FirstBanc's outside counsel, provide any such person with information
or assistance or negotiate with any such person with respect to an Acquisition
Transaction, and FirstBanc shall immediately notify Fort Bend orally of all the
relevant details relating to all inquiries, indications of interest and
proposals which it may receive with respect to any Acquisition Transaction and
promptly confirm the same to Fort Bend in writing;
(i) take any action that would materially impede or delay the
consummation of the transactions contemplated by this Agreement or the ability
of Fort Bend, Fort Bend Federal or FirstBanc to obtain any approval of any
Regulatory Authority required for the transactions contemplated by this
Agreement or to perform its covenants and agreements under this Agreement;
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(j) other than in the ordinary course of business consistent with
past practice, incur any indebtedness for borrowed money, assume, guarantee,
endorse or otherwise as an accommodation become responsible or liable for the
obligations of any other individual, corporation or other entity;
(k) make any downward adjustments to FirstBanc's allowance for
loan losses other than in accordance with GAAP and immediate past practices; or
(l) agree in writing or otherwise to take any of the foregoing
actions or engage in any activity, enter into any transaction or take or omit to
take any other act which would make any of the representations and warranties in
Article II of this Agreement untrue or incorrect in any material respect if made
anew after engaging in such activity, entering into such transaction, or taking
or omitting such other act.
ARTICLE V
ADDITIONAL AGREEMENTS
5.1 Access and Information. FirstBanc shall afford to Fort Bend and
its subsidiaries, and to their accountants, counsel and other representatives,
full access during normal business hours, during the period prior to the Interim
Merger Effective Time, to all its properties, books, contracts, commitments and
records and, during such period, it shall furnish promptly to them (i) a copy of
each report, schedule and other document filed or received by it during such
period pursuant to the requirements of federal and state securities laws and
(ii) all other information concerning its business, properties and personnel as
they may reasonably request. Except as may be required by law, Fort Bend shall,
and shall cause its subsidiaries, advisors and representatives to, (A) hold
confidential all information obtained hereby with respect to FirstBanc which is
not otherwise public knowledge, (B) return all documents (including copies
thereof) obtained hereunder from FirstBanc to it and (C) use its best efforts to
cause all information obtained pursuant to this Agreement or in connection with
the negotiation of this Agreement to be treated as confidential and not use, or
knowingly permit others to use, any such information unless such information
becomes generally available to the public.
5.2 Regulatory Filings. FirstBanc, Fort Bend and Fort Bend Federal
shall cooperate and use their respective best efforts to prepare all
documentation, to effect all filings and to obtain all permits, consents,
approvals and authorizations of all third parties and Regulatory Authorities
necessary to consummate the transactions contemplated by this Agreement.
5.3 Stockholder Approval. FirstBanc shall call a meeting of its
stockholders to be held as soon as practicable for the purpose of voting upon
this Agreement and the Interim Merger. In connection with such meeting, Fort
Bend and FirstBanc shall cooperate in the preparation of the Proxy Statement
and, with the approval of each of Fort Bend and FirstBanc, the Proxy Statement
shall be filed with the OTS and the Texas Department, if applicable, and mailed
to the stockholders of FirstBanc. The Board of Directors of FirstBanc shall
submit for approval of FirstBanc's stockholders the matters to be voted upon at
such meeting. The Board of Directors of FirstBanc hereby does and (except to
the extent that the fulfillment of the fiduciary duties of FirstBanc's directors
so requires in connection with an unsolicited Acquisition Transaction, as so
advised in writing by FirstBanc's outside counsel) will unanimously recommend
this Agreement and the Interim Merger to the stockholders of FirstBanc and will
use its best
20
efforts to obtain any vote of FirstBanc's stockholders necessary for the
approval and adoption of this Agreement and the Interim Merger.
5.4 Current Information. During the period from the date of this
Agreement to the Interim Merger Effective Time, each party shall promptly
furnish the other with copies of all monthly and other interim financial
statements as the same become available and shall cause one or more of its
designated representatives to confer on a regular and frequent basis with
representatives of the other party. Each party shall promptly notify the other
party of any material change in its business or operations, of any fact,
omission or condition which makes untrue or misleading or shows to have been
untrue or misleading the information supplied by it for inclusion in the Proxy
Statement, and of any governmental complaints, examinations, investigations or
hearings (or communications indicating that the same may be contemplated), or
the institution or the threat of material litigation involving such party, and
shall keep the other party fully informed of such events.
5.5 Conforming Adjustments. FirstBanc shall cooperate in making any
accounting adjustments requested by Fort Bend, including the establishment of
additional accruals and reserves ("Conforming Adjustments"). These Conforming
Adjustments will enable Fort Bend to conform FirstBanc's accounting policies and
practices to Fort Bend's, as well as to conform the parties interest rate risk
position. The Conforming Adjustments shall, to the extent determined by Fort
Bend, be made immediately prior to the Closing but after the satisfaction or
waiver of all conditions and/or obligations precedent to Closing contained in
Article VI of this Agreement as confirmed by the parties at such time.
Notwithstanding anything to the contrary contained in this Agreement, (i) no
Conforming Adjustment shall be taken into account for purposes of determining
contributions to qualified or non-qualified employee benefit plans and (ii) no
Conforming Adjustment, or any litigation or regulatory proceeding relating
thereto, or any other effect on any party resulting from its compliance with
this Section 5.5, shall constitute or be deemed to be a breach, violation of or
failure to satisfy any representation, warranty, covenant, condition or other
provision of this Agreement or otherwise be considered in determining whether
any such breach, violation or failure to satisfy shall have occurred or be
deemed to constitute or cause a material adverse effect or material adverse
change on FirstBanc.
5.6 Expenses. Each party hereto shall bear its own expenses incident
to preparing, entering into and carrying out this Agreement and to consummating
the Merger, provided that any and all filing fees required as part of any
application filed with the OTS, the Texas Department or any other Regulatory
Authority in connection with this Agreement shall be borne by Fort Bend.
5.7 Miscellaneous Agreements and Consents. Subject to the terms and
conditions herein provided, each of the parties hereto agrees to use its
respective best efforts to take, or cause to be taken, all actions and, except
to the extent required for the fulfillment of the fiduciary duties of
FirstBanc's directors, as so advised in writing by FirstBanc's outside counsel,
to do, or cause to be done, all things necessary, proper or advisable under
applicable laws and regulations to consummate and make effective the
transactions contemplated by this Agreement as expeditiously as possible,
including without limitation using its respective best efforts to lift or
rescind any injunction or restraining order adversely affecting the ability of
the parties to consummate the transactions contemplated hereby. Each party
shall, and Fort Bend shall cause each of its subsidiaries to, use its best
efforts to obtain consents of all third parties and Regulatory Authorities
necessary or, in the opinion of Fort Bend, desirable for the consummation of the
transactions contemplated by this Agreement.
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5.8 Employee Agreements and Benefits.
(a) Prior to the Interim Merger Effective Time, FirstBanc shall make
no amendments to the FirstBanc ESOP or any other tax-qualified retirement plan
maintained by FirstBanc (together with the FirstBanc ESOP, the "FirstBanc
Qualified Plans") without the prior written approval of Fort Bend or as
otherwise permitted by this Section 5.8(a), and shall make no additional
contributions to the FirstBanc ESOP and no additional employer contributions to
any other FirstBanc Qualified Plan (other than any employee deferrals and any
matching contributions required under FirstBanc's tax-qualified employee savings
and retirement plan (the "401(k) Plan"). FirstBanc shall take all steps
necessary to ensure that, prior to the Interim Merger Effective Time, (i) the
FirstBanc ESOP and trust therefor shall have been terminated, (ii) all assets in
the FirstBanc ESOP shall have been distributed to the former participants in
the FirstBanc ESOP, as appropriate and in a manner consistent with the
requirements of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), (iii) FirstBanc shall have obtained any OTS or Texas Department
consent and/or approval necessary in connection with termination and winding up
of all outstanding FirstBanc ESOP obligations and (iv) a trust or other fund
shall have been established, or a payment shall have been made into the registry
of a federal court, with sufficient assets (A) to pay Michael E. Casey any
amount to which he is ultimately entitled pursuant to the interpleader action
filed on November 1, 1995, by the trustee of the FirstBanc ESOP against Michael
E. Casey et al., and, except for any attorney fees and expenses which are the
subject of the Escrow Agreement set forth at Exhibit E, to pay any and all
costs and expenses related thereto, and (B) to compensate the FirstBanc ESOP
trustee in full. At the Thrift Merger Effective Time or thereafter, Fort Bend
may terminate any remaining FirstBanc Qualified Plans, continue such FirstBanc
Qualified Plans, or merge such FirstBanc Qualified Plans with another tax-
qualified retirement plan maintained by Fort Bend or its Subsidiaries, all in
its sole discretion, but in a manner consistent with the requirements of ERISA.
The vested accrued benefits of participants in the FirstBanc Qualified Plans
shall not be reduced by virtue of any such termination, continuation or merger
of the FirstBanc Qualified Plans.
(b) Fort Bend Federal anticipates retaining certain employees of
FirstBanc as employees of Fort Bend Federal after the Thrift Merger Effective
Time, subject to the needs of Fort Bend Federal and the qualifications of such
employees. Employees of FirstBanc who continue in employment with Fort Bend
Federal following the Thrift Merger Effective Time shall be credited for prior
years of service with FirstBanc for purposes of eligibility and vesting under
Fort Bend Federal benefit plans and policies (including, without limitation,
vacation and sick leave policies), there shall be no exclusion from medical
coverage as the result of pre-existing conditions that were covered under the
medical plan of FirstBanc. With respect to Diane Martz, a former employee of
FirstBanc, Fort Bend Federal shall provide health and life insurance benefits in
an amount equal to the lesser of (i) the amount provided to existing employees
of Fort Bend Federal and (ii) the amount to which Burkholder and Associates
agrees in writing to insure Ms. Martz; provided, however, that the cost to Fort
Bend Federal of insuring Ms. Martz shall not exceed the cost to Fort Bend
Federal of insuring any other of its employees.
5.9 Press Releases. Except as may be required by law, Fort Bend
shall issue any and all press releases relating to this Agreement or any of the
transactions contemplated hereby, following approval by FirstBanc as to the form
and substance of such press releases (which approval shall not be unreasonably
withheld or delayed).
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5.10 Third Parties. FirstBanc shall immediately terminate all
negotiations or discussions concerning any Acquisition Transaction with parties
other than Fort Bend and enforce the terms of all confidentiality agreements
with such other parties.
5.11 Dissenting Shares. FirstBanc will comply with all applicable
notification and other provisions of regulations or statutes relating to
Dissenting Shares.
5.12 Right to Attend Meetings of FirstBanc Board and Stockholders.
FirstBanc shall give the President of Fort Bend at least five business days'
written notice of any regular or special meeting of FirstBanc's Board of
Directors or stockholders, and FirstBanc shall allow one representative of Fort
Bend to attend any such meeting of FirstBanc's Board of Directors or
stockholders; provided however, the Fort Bend representative shall be excluded
from those portions of the FirstBanc Board of Directors meeting where this
Agreement is discussed or where confidential competitive matters are discussed.
ARTICLE VI
CONDITIONS
6.1 Conditions to Each Party's Obligation to Effect the Merger. The
respective obligations of each party to effect the Interim Merger shall be
subject to the fulfillment or waiver at or prior to the Interim Merger Effective
Time of the following conditions:
(a) All requisite approvals of this Agreement and the transactions
contemplated hereby shall have been received from the OTS and all other
Regulatory Authorities, if any, having approval authority with respect to the
Merger, without the imposition of any condition which differs from conditions
customarily imposed by such Regulatory Authorities in orders approving
acquisitions of the type contemplated hereby and in the good faith opinion of
Fort Bend compliance with which would materially adversely affect the reasonably
anticipated benefits of the Merger to Fort Bend or Fort Bend Federal, and all
applicable waiting periods shall have expired.
(b) Neither Fort Bend, Fort Bend Federal nor FirstBanc shall be
subject to any order, decree or injunction of a court or agency of competent
jurisdiction which enjoins or prohibits the consummation of the Merger.
6.2 Conditions to Obligations of FirstBanc to Effect the Merger. The
obligation of FirstBanc to effect the Interim Merger shall be subject to the
fulfillment or waiver at or prior to the Interim Merger Effective Time of the
following additional conditions:
(a) Representations and Warranties. The representations and
warranties of Fort Bend and Fort Bend Federal set forth in Article III of this
Agreement shall be true and correct as of the date of this Agreement and in all
material respects as of the Interim Merger Effective Time (as though made on and
as of the Interim Merger Effective Time except (i) to the extent such
representations and warranties are by their express provisions made as of a
specified date and (ii) for the effect of transactions contemplated by this
Agreement) and FirstBanc shall have received a certificate of the president and
chief executive officer of Fort Bend and Fort Bend Federal to that effect.
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(b) Performance of Obligations. Fort Bend and Fort Bend Federal shall
have performed in all material respects all obligations required to be performed
by them under this Agreement prior to the Interim Merger Effective Time, and
FirstBanc shall have received a certificate of the president and chief executive
officer of Fort Bend and Fort Bend Federal to that effect.
(c) Opinion of Counsel. FirstBanc shall have received an opinion from
Silver, Freedman & Taff, L.L.P., counsel to Fort Bend and Fort Bend Federal
(which counsel may rely on the opinion of Texas counsel as to matters of Texas
law), dated the Closing Date, in the form attached hereto as Exhibit G.
6.3 Conditions to Obligations of Fort Bend and Fort Bend Federal to
Effect the Merger. The obligations of Fort Bend and Fort Bend Federal to effect
the Merger shall be subject to the fulfillment or waiver at or prior to the
Interim Merger Effective Time of the following additional conditions:
(a) Representations and Warranties. The representations and
warranties of FirstBanc set forth in Article II of this Agreement shall be true
and correct as of the date of this Agreement and in all material respects as of
the Interim Merger Effective Time (as though made on and as of the Interim
Merger Effective Time except (i) to the extent such representations and
warranties are by their express provisions made as of a specific date and (ii)
for the effect of transactions contemplated by this Agreement) and Fort Bend and
Fort Bend Federal shall have received a certificate of the president and chief
executive officer of FirstBanc to that effect.
(b) Performance of Obligations. FirstBanc shall have performed in all
material respects all obligations and covenants required to be performed by it
under this Agreement prior to the Interim Merger Effective Time, and Fort Bend
and Fort Bend Federal shall have received a certificate of the president and
chief executive officer of FirstBanc to that effect.
(c) Opinion of Counsel. Fort Bend and Fort Bend Federal shall have
received an opinion from Larry E. Temple, Esq., counsel to FirstBanc, dated the
Closing Date, in the form attached hereto as Exhibit H.
(d) Voting Agreements. Simultaneous with the execution and delivery
of this Agreement, each of the directors of FirstBanc and Michael E. Casey shall
have executed and delivered to Fort Bend the Voting Agreement, the form of which
is attached hereto as Exhibit C.
(e) Third Party Consents. All consents or approvals of all persons
(other than Regulatory Authorities) required for or in connection with the
execution, delivery and performance of this Agreement and the Merger shall have
been obtained and shall be in full force and effect.
(f) OTS and Texas Department Agreements. The approval of any
Regulatory Authorities necessary to consummate the transactions contemplated by
this Agreement shall not be conditioned upon, or subject the Surviving Thrift at
the time of the Thrift Merger to, any supervisory, operating or other agreements
with any such Regulatory Authorities (including, without limitation, any
supervisory or other agreement or cease and desist order from or with the OTS or
the Texas Department).
(g) No Significant Decrease in Deposit Account Balances. There shall
not have occurred any decrease of 5% or more in the savings, checking or other
deposit account balances at FirstBanc from December 31, 1995 to the Closing
Date.
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(h) Reconciliation of Accounts. The reconciliation of deposit and
checking account balances to be performed by FirstBanc as of the Closing Date
shall not result in an adjustment to expense in excess of $25,000.
(i) FirstBanc ESOP Obligation. The FirstBanc ESOP and trust therefor
shall have been terminated, all assets in the FirstBanc ESOP shall have been
distributed to the former participants in the FirstBanc ESOP, as appropriate and
in a manner consistent with the requirements of ERISA, FirstBanc shall have
obtained any OTS or Texas Department consent and/or approval necessary in
connection with termination and winding up of all outstanding FirstBanc ESOP
obligations and a trust or other fund shall have been established, or a payment
shall have been made into the registry of a federal court, with sufficient
assets: (i) to pay Michael E. Casey any amount to which he is ultimately
entitled pursuant to the interpleader action filed on November 1, 1995, by the
trustee of the FirstBanc ESOP against Michael E. Casey et al., and, except for
any attorney fees and expenses which are the subject of the Escrow Agreement set
forth at Exhibit E, to pay any and all costs and expenses related thereto, (ii)
to compensate the FirstBanc ESOP trustee in full.
(j) Agreement Not to Compete. Simultaneous with the execution and
delivery of this Agreement, Michael E. Casey shall have executed and delivered
to Fort Bend an Agreement Not to Compete, the form of which is attached hereto
as Exhibit D.
(k) Assignment of Indemnification Regarding FirstBanc ESOP.
Simultaneous with the execution and delivery of this Agreement, Michael E.
Casey, FirstBanc and the trustee of the FirstBanc ESOP shall have entered into
the Consent to Indemnification Assignment Agreement set forth as Exhibit E.
(l) Minimum Capital of FirstBanc. The tangible capital of FirstBanc
(as defined under GAAP) as of the Closing Date shall not be less than $3,037,000
(FirstBanc's tangible capital as of December 31, 1995) plus any adjustment to
the Merger Consideration pursuant to Section 1.3(a)(i) (the "Threshold Amount");
provided, however, that FirstBanc's tangible capital may be reduced below the
Threshold Amount due only to the Conforming Adjustments and any special
assessment on FirstBanc's deposits imposed by the FDIC between the date hereof
and the Closing Date, and provided that the amount of any reduction in tangible
capital below the Threshold Amount shall be equal to no more than the after tax
effect of the Conforming Adjustments and such special assessment.
(m) Tax Opinion. Fort Bend shall have received a tax opinion from
Silver, Freedman & Taff, L.L.P., or such other firm reasonably acceptable to
FirstBanc, to the effect (based upon assumptions contained in such opinion or in
reliance on tax representation letters of the parties) that the Interim Merger
constitutes a qualified stock purchase by Fort Bend of all of the issued and
outstanding FirstBanc Common Stock and the Thrift Merger constitutes a tax-free
or tax-deferred reorganization under Section 368(a)(1)(A) or (D) of the Code.
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ARTICLE VII
TERMINATION, AMENDMENT AND WAIVER
7.1 Termination. This Agreement may be terminated at any time prior
to the Interim Merger Effective Time, whether before or after any requisite
stockholder approval:
(a) by mutual consent by the Board of Directors of Fort Bend and the
Board of Directors of FirstBanc;
(b) by the Board of Directors of Fort Bend or the Board of Directors
of FirstBanc at any time after November 15, 1996 (provided that if a protest
has been filed against either party to this Agreement pursuant to the Community
Reinvestment Act, this date shall be extended for up to an additional forty-five
(45) days in order to resolve such protest) if the Interim Merger shall not
theretofore have been consummated (provided that the terminating party is not
then in material breach of any representation, warranty, covenant or other
agreement contained herein);
(c) by the Board of Directors of Fort Bend or the Board of Directors
of FirstBanc if (i) any Regulatory Authority has denied approval of the Interim
Merger and such denial has become final and nonappealable or (ii) stockholders
of FirstBanc shall not have approved this Agreement and the Interim Merger at
the meeting referred to in Section 5.3 following a favorable recommendation of
such matters by FirstBanc's Board of Directors;
(d) by the Board of Directors of Fort Bend in the event of a material
breach by FirstBanc of any representation, warranty, covenant or other agreement
contained in this Agreement, which breach is not cured within 30 days after
written notice thereof to FirstBanc by Fort Bend;
(e) by the Board of Directors of FirstBanc in the event of a material
breach by Fort Bend or Fort Bend Federal of any representation, warranty,
covenant or other agreement contained in this Agreement, which breach is not
cured within 30 days after written notice thereof is given to Fort Bend by
FirstBanc.
7.2 Effect of Termination. In the event of termination of this
Agreement as provided in Section 7.1 hereof, this Agreement shall forthwith
become void and there shall be no liability under this Agreement on the part of
Fort Bend, Fort Bend Federal or FirstBanc or their respective officers or
directors except as set forth in the second sentence of Section 5.1, in Section
5.6, in the last sentence of Section 8.1.
7.3 Amendment. This Agreement and the Schedules hereto may be
amended by the parties hereto, by action taken by or on behalf of their
respective Boards of Directors, at any time before or after approval of this
Agreement by the stockholders of FirstBanc; provided, however, that (i) after
any such approval by the stockholders of FirstBanc no such modification shall
alter or change the amount or kind of consideration to be received by holders of
FirstBanc Common Stock as provided in this Agreement and (ii) Fort Bend may
make, and FirstBanc's Board of Directors shall approve and its duly authorized
representative shall execute, such amendments as are permitted by Section 1.5
hereof. This Agreement may not be amended except by an instrument in writing
signed on behalf of each of Fort Bend and FirstBanc.
26
7.4 Severability. Any term, provision, covenant or restriction
contained in this Agreement held by a court or a Regulatory Authority of
competent jurisdiction to be invalid, void or unenforceable, shall be
ineffective to the extent of such invalidity, voidness or unenforceability, but
neither the remaining terms, provisions, covenants or restrictions contained in
this Agreement nor the validity or enforceability thereof in any other
jurisdictions shall be affected or impaired thereby. Any term, provision,
covenant or restriction contained in this Agreement that is so found to be so
broad as to be unenforceable shall be interpreted to be as broad as is
enforceable.
7.5 Waiver. Any term, condition or provision of this Agreement may
be waived in writing at any time by the Board of Directors of the party which
is, or whose stockholders are, entitled to the benefits thereof.
ARTICLE VIII
GENERAL PROVISIONS
8.1 Non-Survival of Representations, Warranties and Agreements. No
investigation by the parties hereto made heretofore or hereafter shall affect
the representations and warranties of the parties which are contained herein and
each such representation and warranty shall survive such investigation. Except
as set forth below in this Section 8.1, all representations, warranties and
agreements in this Agreement of the parties or in any instrument delivered by a
party pursuant to or in connection with this Agreement shall not survive at the
Interim Merger Effective Time or the termination of this Agreement in accordance
with its terms. In the event of consummation of the Interim Merger, the
agreements contained in or referred to in Section 5.8 shall survive the Thrift
Merger Effective Time. In the event of termination of this Agreement in
accordance with its terms, the agreements contained in or referred to in the
second sentence of Section 5.1 and in Sections 5.6 and 7.2 and in the last
sentence of this Section 8.1 shall survive such termination. Nothing herein
shall (i) relieve a breaching party from liability to a non-breaching party in
the event of a proper termination of this Agreement pursuant to Section 7.1(d)
or 7.1(e) or (ii) limit the remedy or relief of the non-breaching party against
the breaching party, it being agreed and understood by the parties hereto that a
non-breaching party shall be entitled to specifically enforce the terms of this
Agreement and the transactions contemplated hereby in an equitable proceeding,
without posting any bond, as the non-breaching party's remedies at law are
inadequate to compensate it for the injury or loss sustained as a result of such
breach; it being further agreed by the parties that all remedies shall be deemed
cumulative and no remedies shall be exclusive.
8.2 Notices. All notices and other communications hereunder shall be
in writing and shall be deemed to be duly received (i) on the date given if
delivered personally or (ii) upon confirmation of receipt, if by facsimile
transmission or (iii) on the date received if mailed by registered or certified
mail (return receipt requested), to the parties at the following addresses (or
at such other address for a party as shall be specified by like notice):
27
(i) if to Fort Bend or Fort Bend Federal, or both:
Fort Bend Holding Corp.
3400 Avenue H
P.O. Box 951
Rosenberg, Texas 77471
Attention: Lane Ward
President and Vice
Chairman
Telecopy: (713) 342-4219
Copies to:
Silver, Freedman & Taff, L.L.P.
1100 New York Avenue, N.W.
Washington, D.C. 20005
Attention: Martin L. Meyrowitz, P.C.
Telecopy: (202) 682-0354
(ii) if to FirstBanc:
FirstBanc Savings Association of Texas
5819 Highway 6, Suite 100
Missouri City, Texas 77459
Attention: J.R. Hardin
Chairman of the Board
Telecopy: (713) 261-2318
Copy to:
Larry E. Temple, Esq.
Suite 1510
400 West 15th Street
Austin, Texas 78701
Telecopy: (512) 477-4478
8.3 Miscellaneous. This Agreement (including the Schedules referred
to herein) (i) constitutes the entire agreement and supersedes all other prior
agreements and understandings, both written and oral, among the parties, or any
of them, with respect to the subject matter hereof, including any
confidentiality agreement between the parties hereto, (ii) is not intended to
confer upon any person not a party hereto any rights or remedies hereunder,
(iii) shall not be assigned by operation of law or otherwise and (iv) shall be
governed in all respects by the laws of the State of Texas, except as otherwise
specifically provided herein or required by federal law or regulation. This
Agreement may be executed in counterparts which together shall constitute a
single agreement.
28
Fort Bend, Fort Bend Federal and FirstBanc have caused this Agreement
to be duly executed by their authorized representatives on the date first above
written.
FORT BEND HOLDING CORP. FIRSTBANC SAVINGS ASSOCIATION
OF TEXAS
By: /s/ LANE WARD By: /s/ J.R. HARDIN
--------- -----------
Name: Lane Ward Name: J.R. Hardin
Title: President Title: Chairman
Attested by: /s/ SANDRA SAMFORD Attested by: /s/ DAVID A. BUBIER
-------------- ---------------
Name: Sandra Samford Name: David A. Bubier
Title: Corporate Title: President
Secretary
FORT BEND FEDERAL SAVINGS AND
LOAN ASSOCIATION OF ROSENBERG
By: /s/ LANE WARD
---------
Name: Lane Ward
Title: President
Attested by: /s/ SANDRA SAMFORD
--------------
Name: Sandra Samford
Title: Corporate
Secretary
29
EXHIBIT A
PLAN OF MERGER
OF
ACQUISITION FEDERAL SAVINGS AND LOAN ASSOCIATION
WITH AND INTO
FIRSTBANC SAVINGS ASSOCIATION OF TEXAS
THIS PLAN OF MERGER (this "Plan") dated August 16, 1996, is made between
FIRSTBANC SAVINGS ASSOCIATION OF TEXAS, a Texas stock-form savings and loan
association ("FirstBanc") and ACQUISITION FEDERAL SAVINGS AND LOAN ASSOCIATION,
a Federal stock-form savings and loan association formed for the sole purpose of
implementing the merger contemplated herein ("Acquisition Thrift").
This Plan is being entered into pursuant to an Agreement and Plan of
Merger, dated May 10, 1996, by and between Fort Bend Holding Corp. ("Fort
Bend"), Fort Bend Federal Savings and Loan Association of Rosenberg and
FirstBanc (the "Merger Agreement"), which is incorporated herein by reference.
Terms defined in the Merger Agreement and used, but not otherwise defined, in
this Plan shall have the same definitions for purposes of this Plan.
In consideration of the premises and the mutual covenants and agreements
contained herein, the parties agree as follows:
Section 1.
Subject to the terms of the Merger Agreement, Acquisition Thrift shall
merge with and into FirstBanc (the "Interim Merger"). FirstBanc shall be the
surviving savings association of the Interim Merger (the "Interim Thrift"). The
Interim Merger shall not be effective unless and until approved by the Office of
Thrift Supervision and the Texas Savings and Loan Department, as appropriate.
Section 2.
The name of the Interim Thrift shall be "FirstBanc Savings Association of
Texas."
Section 3.
The location of the home office of the Interim Thrift shall be as follows:
5819 Highway 6, Suite 100
Missouri City, Texas 77459
Section 4.
The basis on which the Interim Thrift's deposit accounts will be issued
will be identical to that of FirstBanc's accounts immediately prior to the
Interim Merger Effective Time.
Section 5.
The number of directors which the Interim Thrift shall have shall be eight.
The terms which the directors shall serve shall be as stated below. Each
director shall serve until his successor is duly elected and qualified. The
directors who shall serve as of the Interim Merger Effective Time shall be:
NAME ADDRESS TERM EXPIRES
---- ------- ------------
[FORT BEND PERSONNEL TO BE APPOINTED]
Section 6.
As of the time the Interim Merger shall become effective, the charter
and bylaws of the Interim Thrift shall be the charter and bylaws of FirstBanc.
Section 7.
At the Interim Merger Effective Time, the Interim Thrift shall be
considered the same business and corporate entity as each of the Acquisition
Thrift and FirstBanc (collectively, the "Constituent Thrifts") and thereupon and
thereafter all the property, rights, privileges, powers and franchises of each
of the Constituent Thrifts shall vest in the Interim Thrift and the Interim
Thrift shall be subject to and be deemed to have assumed all of the debts,
liabilities, obligations and duties of each of the Constituent Thrifts and shall
have succeeded to all of each of their relationships, fiduciary or otherwise, as
fully and to the same extent as if such property, rights, privileges, powers,
franchises, debts, liabilities, obligations, duties and relationships had been
originally acquired, incurred or entered into by the Interim Thrift. In
addition, any reference to either of the Constituent Thrifts in any contract or
document, whether executed or taking effect before or after the Interim Merger
Effective Time, shall be considered a reference to the Interim Thrift if not
inconsistent with the other provisions of the contract or document; and any
pending action or other judicial proceedings to which either of the Constituent
Thrifts is a party shall not be deemed to have been abated and shall have the
same force and effect as if the Interim Merger had not occurred; or the Interim
Thrift may be substituted as a party to such action or proceedings, and any
judgment, order or decree may be rendered for or against it that might
have been rendered for or against either of the Constituent Thrifts if the
Interim Merger had not occurred.
Section 8.
(a) At the Interim Merger Effective Time, each share of FirstBanc
Common issued and outstanding immediately prior to the Interim Merger Effective
Time, other than Dissenting
2
Shares, shall be converted into the right to receive the Merger Consideration as
described in the Merger Agreement.
(b) At the Interim Merger Effective Time, except with respect to
Dissenting Shares, all of the shares of FirstBanc Common Stock, by virtue of the
Interim Merger and without any action on the part of the holders thereof, shall
no longer be outstanding and shall be cancelled and retired and shall cease to
exist, and each holder of any certificate or certificates which immediately
prior to the Interim Merger Effective Time represented outstanding shares of
FirstBanc Common Stock (the "Certificates") shall thereafter cease to have any
rights with respect to such shares, except the right of such holders to receive,
without interest, the Merger Consideration upon the surrender of such
Certificate or Certificates in accordance with the Merger Agreement. Holders of
Dissenting Shares shall have such rights as are provided under the Texas Act and
the TCBA.
(c) At the Interim Merger Effective Time, each share of FirstBanc
Common Stock, if any, held in the treasury of FirstBanc (other than shares held
in trust accounts for the benefit of others or in other fiduciary, nominee or
similar capacities) immediately prior to the Interim Merger Effective Time shall
be canceled.
(d) Each share of common stock, par value $.01 per share, of
Acquisition Thrift outstanding immediately prior to the Interim Merger Effective
Time shall be converted into and become one share of FirstBanc Common Stock.
Section 9.
In the event the Merger Agreement is terminated pursuant to the terms
thereof, this Plan shall also be terminated and the Interim Merger provided for
herein shall thereby be abandoned automatically without further act or deed by
the parties hereto.
Section 10.
Consummation of this Plan is subject to the satisfaction of the
conditions set forth in the Merger Agreement.
Section 11.
This Plan must be ratified and confirmed by the affirmative vote of
the stockholders of FirstBanc and Acquisition Thrift owning the requisite
percentage of their respective capital stock outstanding as required by law, at
meetings to be held on the call of their respective Boards of Directors; and the
Interim Merger shall become effective upon such date as is provided in the
Merger Agreement.
3
IN WITNESS WHEREOF, FirstBanc and Acquisition Thrift have caused this
Plan to be executed in multiple copies by their duly authorized officers, and
have caused their seals to be hereunto affixed, as of the date first above
written.
FIRSTBANC SAVINGS ASSOCIATION
OF TEXAS
ATTEST:
By: By:
--------------------------- -------------------------
(SEAL)
ACQUISITION FEDERAL SAVINGS
AND LOAN ASSOCIATION
ATTEST:
By: By:
--------------------------- -------------------------
(SEAL)
4
EXHIBIT B
THRIFT MERGER AGREEMENT
THIS THRIFT MERGER AGREEMENT (this "Agreement") dated August 16, 1996, is
made between FIRSTBANC SAVINGS ASSOCIATION OF TEXAS, a Texas stock-form savings
bank ("FirstBanc") and Fort Bend Federal Savings and Loan Association of
Rosenberg, a Federal stock-form savings and loan association ("Fort Bend
Federal").
This Agreement is being entered into pursuant to an Agreement and Plan of
Merger, dated May 10, 1996, by and between Fort Bend Holding Corp. ("Fort
Bend"), Fort Bend Federal and FirstBanc (the "Merger Agreement"), which is
incorporated herein by reference. Terms defined in the Merger Agreement and
used, but not otherwise defined, in this Agreement shall have the same
definitions for purposes of this Agreement.
In consideration of the premises and the mutual covenants and agreements
contained herein, the parties agree as follows:
Section 1.
FirstBanc shall merge with and into Fort Bend Federal (the "Thrift
Merger"). Fort Bend Federal shall be the surviving savings association of the
Thrift Merger (the "Resulting Thrift"). The Thrift Merger shall not be effective
unless and until approved by the Office of Thrift Supervision and the Texas
Savings and Loan Department, as appropriate.
Section 2.
The name of the Resulting Thrift shall be "Fort Bend Federal Savings and
Loan Association of Rosenberg."
Section 3.
The location of the home office and branch offices of the Resulting Thrift
shall be as follows:
Home Office
- -----------
3400 Avenue H
Rosenberg, TX
Branch Offices
- --------------
3328 School Street 10881 Bissonnet 9212 Highway 60
Needville, TX Houston, TX East Bernard, TX
919 Avenue C 5819 Highway 6
Katy, TX Suite 100
Missouri City, TX
Section 4.
The basis on which the Resulting Thrift's deposit accounts will be issued
will be identical to that of the Constituent Thrifts' (as hereinafter defined)
accounts immediately prior to the Thrift Merger Effective Time.
Section 5.
The number of directors which the Resulting Thrift shall have shall be
eight. Each director shall serve until his successor is duly elected and
qualified. The directors who shall serve as of the Thrift Merger Effective Time
and the terms which such directors shall serve are set forth below:
Name and Address Term to Expire
- ---------------- --------------
Robert W. Lindsey 1997
[Residential Address]
Lane Ward 1997
[Residential Address]
J. Patrick Gubbels 1999
[Residential Address]
Wayne O. Poldrack 1999
[Residential Address]
George C. Brady 1998
[Residential Address]
William A. Little 1998
[Residential Address]
Section 6.
As of the time the Thrift Merger shall become effective, the charter and
bylaws of the Resulting Thrift shall be the charter and bylaws of Fort Bend
Federal.
Section 7.
At the Thrift Merger Effective Time, the Resulting Thrift shall be
considered the same business and corporate entity as each of FirstBanc and Fort
Bend Federal (collectively, the "Constituent Thrifts") and thereupon and
thereafter all the property, rights, privileges, powers and franchises of each
of the Constituent Thrifts shall vest in the Resulting Thrift and the Resulting
Thrift shall be subject to and be deemed to have assumed all of the debts,
liabilities, obligations and duties of each of the Constituent Thrifts and shall
have succeeded to all of each of their relationships, fiduciary or otherwise, as
fully and to the same extent as if such property,
2
rights, privileges, powers, franchises, debts, liabilities, obligations, duties
and relationships had been originally acquired, incurred or entered into by the
Resulting Thrift. In addition, any reference to either of the Constituent
Thrifts in any contract or document, whether executed or taking effect before or
after the Thrift Merger Effective Time, shall be considered a reference to the
Resulting Thrift if not inconsistent with the other provisions of the contract
or document; and any pending action or other judicial proceedings to which
either of the Constituent Thrifts is a party shall not be deemed to have been
abated and shall have the same force and effect as if the Thrift Merger had not
occurred; or the Resulting Thrift may be substituted as a party to such action
or proceedings, and any judgment, order or decree may be rendered for or against
it that might have been rendered for or against either of the Constituent
Thrifts if the Thrift Merger had not occurred.
Section 8.
At the Thrift Merger Effective Time, each share of FirstBanc Common Stock
issued and outstanding immediately prior to the Thrift Merger Effective Time
shall be cancelled and no shares of the capital stock of the Resulting Thrift
will be issued in exchange therefor, and each share of Fort Bend Federal issued
and outstanding or held in treasury immediately prior to the Thrift Merger
Effective Time shall become and continue as an identical share of issued and
outstanding capital or treasury stock of the Resulting Thrift.
Section 9.
This Agreement has been approved by the Boards of Directors of the
Constituent Thrifts and ratified and confirmed by Fort Bend, the sole
stockholder of the Constituent Thrifts.
IN WITNESS WHEREOF, FirstBanc and Fort Bend Federal have caused this
Agreement to be executed in multiple copies by their duly authorized officers,
and have caused their seals to be hereunto affixed, as of the date first above
written.
FIRSTBANC SAVINGS ASSOCIATION
OF TEXAS
ATTEST:
By: By:
-------------------------- ------------------------
(SEAL)
FORT BEND FEDERAL SAVINGS AND
LOAN ASSOCIATION OF ROSENBERG
ATTEST:
By: By:
-------------------------- ------------------------
(SEAL)
3