AGREEMENT AND PLAN OF MERGER
AMONG
LANDMARK BANCORP, INC.
LANDMARK ACQUISITION CORPORATION
AND
FIRST KANSAS FINANCIAL CORPORATION
NOVEMBER 13, 2003
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement") is entered into as
of November 13, 2003, among LANDMARK BANCORP, INC., a Delaware corporation
("Acquiror"), FIRST KANSAS FINANCIAL CORPORATION, a Kansas corporation ("First
Kansas"), and LANDMARK ACQUISITION CORPORATION, a Kansas corporation and a
wholly-owned subsidiary of Acquiror ("Acquisition Corp").
RECITALS
A. The parties to this Agreement desire to effect a reorganization
whereby Acquiror acquires control of First Kansas through the merger (the
"Merger") of Acquisition Corp with and into First Kansas with First Kansas being
the surviving corporation (the "Surviving Corporation").
B. Pursuant to the terms of this Agreement, each outstanding share of
the capital stock of First Kansas, which is comprised of one class of common
stock, $0.10 par value per share ("First Kansas Common Stock"), shall be
converted at the effective time of the Merger into the right to receive in cash
in the amount set forth in this Agreement, and all of the outstanding shares of
common stock, $0.01 par value per share, of Acquisition Corp ("Acquisition Corp
Common Stock") shall be converted into and shall thereafter represent all of the
issued and outstanding stock of the Surviving Corporation.
C. The parties desire to make certain representations, warranties and
agreements in connection with the Merger and also agree to certain prescribed
conditions to the Merger.
AGREEMENTS
In consideration of the foregoing premises and the following mutual
promises, covenants and agreements, the parties hereby agree as follows:
ARTICLE 1
DEFINITIONS
Section 1.1 Definitions. In addition to those terms defined throughout this
Agreement, the following terms, when used herein, shall have the following
meanings.
(a) "Acquiror Subsidiary" means a Subsidiary of Acquiror, including
Acquisition Corp and Landmark Bank.
(b) "Acquiror Transactional Expenses" means all transaction costs of
Acquiror necessary to consummate the Contemplated Transactions, including the
organizational expenses of Acquisition Corp, the aggregate fees and expenses of
attorneys, accountants, consultants, financial advisors and other professional
advisors incurred by Acquiror in connection with this Agreement and the
Contemplated Transactions, and all other non-payroll
related costs and expenses in each case incurred or to be incurred by Acquiror
through the Effective Time in connection with this Agreement and the
Contemplated Transactions.
(c) "Adjusted Stockholders' Equity" means the consolidated
stockholders' equity of First Kansas, calculated in accordance with GAAP and
reflecting the recognition of or accrual for all expenses paid or incurred or
projected to be paid or incurred by First Kansas or Bank in connection with this
Agreement and the Contemplated Transactions, including any Remediation Costs (as
defined in Section 6.10), and including all fees and expenses incurred in
connection with obtaining stockholder approval and any attorneys, accountants,
brokers, finders or investment bankers and any amounts paid or payable to any
director, officer or employee of First Kansas or any First Kansas Subsidiary
under any Contract or benefit plan as a result of the Contemplated Transactions
(excluding any amounts payable under the Consulting Agreement between Acquiror
and Larry V. Bailey pursuant to Section 6.19), but adjusted to exclude: (i)
additions in stockholders' equity resulting from the exercise of any First
Kansas Stock Options from September 30, 2003 to the Closing Date, (ii) any
adjustments made in accordance with Statement of Financial Accounting Standard
No. 115 and (iii) any accounting or other adjustments made pursuant to Section
6.18. First Kansas's Adjusted Stockholders' Equity shall be calculated by First
Kansas's independent auditors, in consultation with Acquiror's independent
auditors, as of the close of business on the last Business Day immediately
preceding the Closing Date (as defined below), using reasonable estimates of
revenues and expenses where actual amounts are not available. For purposes of
the calculation of the Adjusted Stockholders' Equity, First Kansas shall assume
a tax rate of 34% for all applicable accruals. Such calculation shall be subject
to verification and approval prior to the Closing (as defined below) by
Acquiror's independent auditors, which approval shall not be unreasonably
withheld.
(d) "Affiliate" means with respect to:
(i) a particular individual: (A) each other member of such
individual's Family; (B) any Person that is directly or indirectly controlled by
such individual or one or more members of such individual's Family; (C) any
Person in which such individual or members of such individual's Family hold
(individually or in the aggregate) a Material Interest; and (D) any Person with
respect to which such individual or one or more members of such individual's
Family serves as a director, officer, partner, executor or trustee (or in a
similar capacity); and
(ii) a specified Person other than an individual: (A) any Person
that directly or indirectly controls, is directly or indirectly controlled by,
or is directly or indirectly under common control with such specified Person;
(B) any Person that holds a Material Interest in such specified Person; (C) each
Person that serves as a director, officer, partner, executor or trustee of such
specified Person (or in a similar capacity); (D) any Person in which such
specified Person holds a Material Interest; (E) any Person with respect to which
such specified Person serves as a general partner or a trustee (or in a similar
capacity); and (F) any Affiliate of any individual described in clause (B) or
(C) of this subsection (ii).
(e) "Applicable Contract" means any Contract: (i) under which First
Kansas or Bank has or may acquire any rights; (ii) under which First Kansas or
Bank has or may become
2
subject to any obligation or liability; or (iii) by which First Kansas or Bank
or any of the assets owned or used by either of them is or may become bound.
(f) "Bank" means First Kansas Federal Savings Bank, a federally
chartered savings bank with its main office located in Osawatomie, Kansas, and a
wholly owned subsidiary of First Kansas.
(g) "Bank Merger" means the merger of Bank with and into Landmark
Bank, with Landmark Bank being the resulting bank.
(h) "Best Efforts" means the efforts that a prudent Person desirous
of achieving a result would use in similar circumstances to ensure that such
result is achieved as expeditiously as possible, provided, however, that an
obligation to use Best Efforts under this Agreement does not require the Person
subject to that obligation to take actions that would result in a materially
adverse change in the benefits to such Person of this Agreement and the
Contemplated Transactions.
(i) "Breach" means with respect to a representation, warranty,
covenant, obligation or other provision of this Agreement or any instrument
delivered pursuant to this Agreement, any material inaccuracy in or material
breach of, or any failure to perform or comply in a material respect with, such
representation, warranty, covenant, obligation or other provision.
(j) "Business Day" means any day except Saturday, Sunday and any day
on which Landmark Bank is authorized or required by law or other government
action to close.
(k) "Code" means the Internal Revenue Code of 1986, as amended.
(l) "Contemplated Transactions" means all of the transactions
contemplated by this Agreement, including: (i) the Merger; (ii) the Bank Merger;
(iii) the performance by Acquiror, Acquisition Corp and First Kansas of their
respective covenants and obligations under this Agreement; and (iv) Acquiror's
acquisition of control of First Kansas and, indirectly, Bank.
(m) "Contract" means any agreement, contract, obligation, promise or
understanding (whether written or oral and whether express or implied) that is
legally binding.
(n) "ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
(o) "Exchange Act" means the Securities Exchange Act of 1934, as
amended
(p) "FDIC" means the Federal Deposit Insurance Corporation.
(q) "Family" means with respect to an individual: (i) the individual;
(ii) the individual's spouse and former spouses; (iii) any other natural person
who is related to the individual or the individual's spouse within the second
degree; and (iv) any other natural person who resides with such individual.
3
(r) First Kansas ESOP" means the First Kansas Financial Corporation
Employee Stock Ownership Plan, as amended.
(s) "First Kansas ESOP Loan" means the principal amount of and
accrued interest on the loan made by Bank to the ESOP as evidenced by a
promissory note dated June 25, 1998.
(t) "First Kansas Restricted Stock Plan" means the First Kansas
Financial Corporation 1999 Restricted Stock Plan, as amended.
(u) "First Kansas Stock Option" means each of the 132,079 outstanding
stock options granted to a Person prior to the date of this Agreement by First
Kansas, under the First Kansas Stock Option Plan or otherwise, and which will
be, by virtue of the Contemplated Transactions or otherwise, vested and fully
exercisable immediately prior to the Effective Time.
(v) "First Kansas Stock Option Plan" means the First Kansas Financial
Corporation 1999 Stock Option Plan.
(w) "First Kansas Subsidiary" means a Subsidiary of First Kansas,
including Bank.
(x) "First Kansas Transactional Expenses" means all transaction costs
of First Kansas necessary to consummate the Contemplated Transactions, the
aggregate fees and expenses of attorneys, accountants, consultants, financial
advisors and other professional advisors incurred by First Kansas in connection
with this Agreement and the Contemplated Transactions, the cost of preparing,
printing and mailing the Proxy Statement to First Kansas's stockholders and all
other non-payroll related costs and expenses in each case incurred or to be
incurred by First Kansas through the Effective Time in connection with this
Agreement and the Contemplated Transactions, excluding, however, all payments
and expenses associated with acceleration of payment of compensation (including
severance benefits, allocation and vesting under any employee stock ownership
plan, stock option plans, retention plans, deferred compensation agreements or
any other First Kansas Employee Benefit Plan, as defined below).
(y) "Knowledge" with respect to:
(i) an individual means that such person will be deemed to have
"Knowledge" of a particular fact or other matter if: (A) such individual is
actually aware of such fact or other matter; or (B) a prudent person serving in
a similar capacity as the individual could reasonably be expected to be aware of
the existence of such fact or other matter; and
(ii) a Person (other than an individual) means that such Person
will be deemed to have "Knowledge" of a particular fact or other matter if any
individual who is serving as a director, executive officer, general or managing
partner, executor or trustee of such Person (or in any similar capacity) has
Knowledge of such fact or other matter.
(z) "Landmark Bank" means Landmark National Bank, a national banking
association with its main office located in Manhattan, Kansas.
4
(aa) "Legal Requirement" means any federal, state, local,
municipal, foreign, international, multinational or other administrative order,
constitution, law, ordinance, regulation, rule, policy statement, directive,
statute or treaty.
(bb) "Material Adverse Effect" with respect to a Person (other
than an individual) means, a material adverse effect (whether or not required to
be accrued or disclosed under Statement of Financial Accounting Standards No.
5), (i) on the condition (financial or otherwise), properties, assets,
liabilities, businesses or results of operations of such Person (but does not
include any such effect resulting from or attributable to any action or omission
by First Kansas or Acquiror or any Subsidiary of either of them taken with the
prior written consent of the other parties hereto, in contemplation of the
Contemplated Transactions); or (ii) on the ability of such Person to perform its
obligations under this Agreement on a timely basis, provided, however, that it
does not include the effect of any change of law, rule or regulation or general
economic event or change in interest rates affecting financial institutions
generally; and provided further that it does not include the effect of
recognition of or accrual for all expenses paid or incurred or projected to be
paid or incurred by First Kansas or Bank in connection with this Agreement and
the Contemplated Transactions, including all fees and expenses incurred in
connection with obtaining stockholder approval and any attorneys, accountants,
brokers, finders or investment bankers and any amounts paid or payable to any
director, officer or employee of First Kansas or any First Kansas Subsidiary
under any contract or benefit plan as a result of the Contemplated Transactions.
(cc) "Material Interest" means the direct or indirect beneficial
ownership (as currently defined in Rule 13d-3 under the Exchange Act) of voting
securities or other voting interests representing at least ten percent (10%) of
the outstanding voting power of a Person or equity securities or other equity
interests representing at least ten percent (10%) of the outstanding equity
securities or equity interests in a Person.
(dd) "OCC" means the Office of the Comptroller of the Currency.
(ee) "Order" means any award, decision, injunction, judgment,
order, ruling, extraordinary supervisory letter, policy statement, memorandum of
understanding, resolution, agreement, directive, subpoena or verdict entered,
issued, made, rendered or required by any court, administrative or other
governmental agency, including any Regulatory Authority, or by any arbitrator.
(ff) "Ordinary Course of Business" means any action taken by a
Person only if such action:
(i) is consistent with the past practices of such Person
and is taken in the ordinary course of the normal day-to-day operations of such
Person;
(ii) is not required to be authorized by the board of
directors of such Person (or by any Person or group of Persons exercising
similar authority), other than loan approvals for customers of a financial
institution; and
5
(iii)is similar in nature and magnitude to actions
customarily taken, without any authorization by the board of directors (or by
any Person or group of Persons exercising similar authority), other than loan
approvals for customers of a financial institution, in the ordinary course of
the normal day-to-day operations of other Persons that are in the same line of
business as such Person.
(gg) "OTS" means the Office of Thrift Supervision.
(hh) "Person" means any individual, corporation (including any
non-profit corporation), general or limited partnership, limited liability
company, joint venture, estate, trust, association, organization, labor union or
other entity or Regulatory Authority.
(ii) "Proceeding" means any action, arbitration, audit, hearing,
investigation, litigation or suit (whether civil, criminal, administrative,
investigative or informal) commenced, brought, conducted or heard by or before,
or otherwise involving, any judicial or governmental authority, including a
Regulatory Authority, or arbitrator.
(jj) "Profit Sharing Plan" means the First Kansas Federal Savings
Association Employees' Savings and Profit Sharing Plan and Trust, as amended.
(kk) "Proxy Statement" means the proxy statement to be used by
First Kansas in connection with the solicitation by its board of directors of
proxies for use at the meeting of its stockholders to be convened for the
purpose of voting on the Merger, pursuant to Section 6.8 hereof.
(ll) "Regulatory Authority" means any federal, state or local
governmental body, agency, court or authority which, under applicable Legal
Requirements: (i) has supervisory, judicial, administrative, police,
enforcement, taxing or other power or authority over First Kansas, Bank,
Acquiror, Acquisition Corp or Landmark Bank; (ii) is required to approve, or
give its consent to the Contemplated Transactions; or (iii) with which a filing
must be made in connection therewith, including in any case, the Board of
Governors of the Federal Reserve System, the OCC and the OTS.
(mm) "Representative" means with respect to a particular Person,
any director, officer, manager, employee, agent, consultant, advisor or other
representative of such Person, including legal counsel, accountants and
financial advisors.
(nn) "SEC" means the Securities and Exchange Commission.
(oo) "Securities Act" means the Securities Act of 1933, as
amended.
(pp) "Subsidiary" means with respect to any Person (the "Owner"),
any corporation or other Person of which securities or other interests having
the power to elect a majority of that corporation's or other Person's board of
directors or similar governing body, or otherwise having the power to direct the
business and policies of that corporation or other Person (other than securities
or other interests having such power only upon the happening of a contingency
that has not occurred) are held by the Owner or one or more of its Subsidiaries.
6
(qq) "Tax" means any tax (including any income tax, capital gains
tax, value-added tax, sales tax, property tax, gift tax or estate tax), levy,
assessment, tariff, duty (including any customs duty), deficiency or other fee,
and any related charge or amount (including any fine, penalty, interest or
addition to tax), imposed, assessed or collected by or under the authority of
any Regulatory Authority or payable pursuant to any tax-sharing agreement or any
other Contract relating to the sharing or payment of any such tax, levy,
assessment, tariff, duty, deficiency or fee.
(rr) "Tax Return" means any return (including any information
return), report, statement, schedule, notice, form or other document or
information filed with or submitted to, or required to be filed with or
submitted to, any Regulatory Authority in connection with the determination,
assessment, collection or payment of any Tax or in connection with the
administration, implementation, or enforcement of or compliance with any Legal
Requirement relating to any Tax.
(ss) "TFR" means the quarterly Thrift Financial Report of
Condition required to be filed with the OTS by any federally chartered savings
bank.
(tt) "Threatened" means a claim, Proceeding, dispute, action or
other matter for which any demand or statement has been made (orally or in
writing) or any notice has been given (orally or in writing), or if any other
event has occurred or any other circumstances exist, that would lead a prudent
Person to conclude that such a claim, Proceeding, dispute, action or other
matter is likely to be asserted, commenced, taken or otherwise pursued in the
future.
(uu) "Termination Date" means August 1, 2004, or such later date
as shall have been agreed to in writing by the parties to this Agreement.
(vv) "Total Purchase Price" means the product of the Purchase
Price Per Share times the total number of shares of First Kansas Common Stock
outstanding at the Effective Time (excluding Dissenting Shares, shares of First
Kansas Common Stock held in treasury by First Kansas and shares of First Kansas
Common Stock held by Acquiror).
Section 1.2 Principles of Construction.
(a) In this Agreement, unless otherwise stated or the context
otherwise requires, the following uses apply: (i) actions permitted under this
Agreement may be taken at any time and from time to time in the actor's sole
discretion; (ii) references to a statute shall refer to the statute as in effect
on the date of this Agreement and to any successor statute, and to all
regulations promulgated under or implementing the statute or its successor, as
in effect at the relevant time; (iii) in computing periods from a specified date
to a later specified date, the words "from" and "commencing on" (and the like)
mean "from and including," and the words "to," "until" and "ending on" (and the
like) mean "to, but excluding"; (iv) references to a governmental or
quasi-governmental agency, authority or instrumentality shall also refer to a
regulatory body that succeeds to the functions of the agency, authority or
instrumentality; (v) indications of time of day mean Manhattan, Kansas, time;
(vi) "including" means "including, but not limited to"; (vii) all references to
sections, schedules and exhibits are to
7
sections, schedules and exhibits in or to this Agreement unless otherwise
specified; (viii) all words used in this Agreement will be construed to be of
such gender or number as the circumstances require; and (ix) the captions and
headings of articles, sections, schedules and exhibits appearing in or attached
to this Agreement have been inserted solely for convenience of reference and
shall not be considered a part of this Agreement nor shall any of them affect
the meaning or interpretation of this Agreement or any of its provisions.
(b) The Book of Schedules of First Kansas referred to in this
Agreement consist of the agreements and other documentation described and
referred to in this Agreement, which Schedules were delivered by First Kansas to
Acquiror before the date of this Agreement. The disclosures in the Schedules,
and those in any supplement thereto, shall relate only to the representations
and warranties in the section of this Agreement to which they expressly relate
and not to any other representation or warranty in this Agreement. In the event
of any inconsistency between the statements in the body of this Agreement and
those in the Schedules (other than an exception expressly set forth as such in
the Schedules with respect to a specifically identified representation or
warranty), the statements in the body of this Agreement will control.
(c) All accounting terms not specifically defined herein shall
be construed in accordance with generally accepted accounting principles in the
United States consistent with those used in the preparation of the most recent
audited consolidated financial statements of Acquiror or First Kansas, as the
case may be ("GAAP").
(d) With regard to each and every term and condition of this
Agreement and any and all agreements and instruments subject to the terms
hereof, the parties hereto understand and agree that the same have or has been
mutually negotiated, prepared and drafted, and that if at any time the parties
hereto desire or are required to interpret or construe any such term or
condition or any agreement or instrument subject hereto, no consideration shall
be given to the issue of which party hereto actually prepared, drafted or
requested any term or condition of this Agreement or any agreement or instrument
subject hereto.
ARTICLE 2
THE MERGER
Section 2.1 The Merger. Provided that this Agreement shall not have
----------
been terminated in accordance with its express terms, upon the terms and subject
to the conditions of this Agreement and in accordance with the applicable
provisions of the General Corporation Code of Kansas, as amended (the "Kansas
Code") at the Effective Time (as defined below), Acquisition Corp shall be
merged with and into First Kansas. As a result of the Merger, the separate
corporate existence of Acquisition Corp shall cease and First Kansas will be the
Surviving Corporation.
Section 2.2 Effective Time; Closing.
-----------------------
(a) Provided that this Agreement shall not have been terminated
in accordance with its express terms, the closing of the Merger (the "Closing")
shall occur through the mail or
8
at a place which is mutually acceptable to Acquiror and First Kansas, or if they
fail to agree, at the offices of Barack Ferrazzano Kirschbaum Perlman &
Nagelberg LLC, located at 333 West Wacker Drive, Suite 2700, Chicago, Illinois
60606, at 10:00 a.m. on the date which is twenty-one (21) Business Days after
the end of the month in which all required approvals or consents of the
Regulatory Authorities for the Contemplated Transactions have been received and
all statutory waiting periods relating to such approvals have expired (the
"Closing Date"). Subject to the provisions of Article 11, failure to consummate
the Merger on the date and time and at the place determined pursuant to this
Section will not result in the termination of this Agreement and will not
relieve any party of any obligation under this Agreement.
(b) The parties to this Agreement agree to file on the Closing
Date the appropriate certificate of merger, as contemplated by Sections 17-6003
and 17-6701 of the Kansas Code with the Secretary of State of the State of
Kansas. The Merger shall be effective at the time and on the date agreed to by
the parties to this Agreement, and in the event the parties fail to so agree, at
12:01 a.m. of the day following the date on which the certificate of merger is
accepted for filing by the Secretary of State of the State of Kansas (the
"Effective Time").
Section 2.3 Effects of Merger. At the Effective Time, the effect of the
-----------------
Merger shall be as provided in the Kansas Code. Without limiting the generality
of the foregoing, at the Effective Time, all the property, rights, privileges,
powers and franchises of Acquisition Corp and First Kansas shall be vested in
the Surviving Corporation, and all debts, liabilities and duties of Acquisition
Corp and First Kansas shall become the debts, liabilities and duties of the
Surviving Corporation.
Section 2.4 Articles of Incorporation. At the Effective Time, the
--------------------------
articles of incorporation of Surviving Corporation shall be amended and restated
to be identical to the articles of incorporation of Acquisition Corp in place
immediately prior to the Effective Time and shall become the articles of
incorporation of the Surviving Corporation until thereafter amended in
accordance with applicable law.
Section 2.5 Bylaws. At the Effective Time, the bylaws of Surviving
------
Corporation shall be the bylaws of the Acquisiton Corp in place immediately
prior to the Effective Time and shall become the bylaws of the Surviving
Corporation until thereafter amended in accordance with applicable law.
Section 2.6 Board of Directors. From and after the Effective Time,
-------------------
until duly changed in compliance with applicable law and the articles of
incorporation and bylaws of the Surviving Corporation, the board of directors of
the Surviving Corporation shall consist of the directors of Acquisition Corp
immediately prior to the Effective Time.
Section 2.7 Management. At the Effective Time, the officers of
----------
Acquisition Corp immediately prior to the Effective Time shall be the initial
officers of the Surviving Corporation and shall hold office until their
respective successors are duly elected or appointed and qualified in the manner
provided in the articles of incorporation and bylaws of the Surviving
Corporation.
9
Section 2.8 Acquiror's Deliveries at Closing. At the Closing, Acquiror
--------------------------------
shall deliver or cause to be delivered the following items to or on behalf of
First Kansas:
(a) evidence of the delivery by Acquiror or its agents to the
Paying Agent (as defined below) of cash representing the Total Purchase Price to
be paid in accordance with the terms of this Agreement in exchange for the
shares of First Kansas Common Stock;
(b) copies of resolutions of the board of directors of Acquiror
approving this Agreement and the consummation of the Contemplated Transactions,
certified as of the Closing Date by the Secretary or any Assistant Secretary of
Acquiror;
(c) copies of resolutions of the board of directors and the
stockholder of Acquisition Corp approving this Agreement and the consummation of
the Contemplated Transactions, certified as of the Closing Date by the Secretary
or any Assistant Secretary of Acquisition Corp;
(d) a good standing certificate for Acquisition Corp issued by
the Secretary of State of the State of Kansas, and dated not more than fifteen
(15) Business Days prior to the Closing Date;
(e) a copy of the articles of incorporation of Acquisition Corp
certified not more than fifteen (15) Business Days prior to the Closing Date by
the Secretary of State of the State of Kansas;
(f) a certificate of the Secretary or any Assistant Secretary of
Acquisition Corp dated the Closing Date certifying a copy of the bylaws of
Acquisition Corp;
(g) certificates executed by the President or Vice President and
Secretary or any Assistant Secretary of Acquiror and Acquisition Corp, dated the
Closing Date, stating that: (i) all of the representations and warranties of
Acquiror or Acquisition Corp as the case may be set forth in this Agreement, as
the same may have been updated pursuant to Section 7.1, are true and correct in
all material respects with the same force and effect as if all of such
representations and warranties were made at the Closing Date, provided, however,
that to the extent such representations and warranties expressly relate to an
earlier date, such representations shall be true and correct in all material
respects on and as of such earlier date, and provided further, that to the
extent that representations and warranties are made in this Agreement subject to
a standard of materiality or Knowledge, such representations and warranties
shall be true and correct in all respects; and (ii) Acquiror or Acquisition
Corp, as the case may be, has performed or complied in all material respects
with all of the covenants and obligations to be performed or complied with by it
under the terms of this Agreement on or prior to the Closing Date, provided,
however, that to the extent performance and compliance with such covenants and
obligations are subject in this Agreement to a standard of materiality, Acquiror
or Acquisition Corp shall have performed and complied in all respects with such
covenants and obligations; and
(h) such other documents as First Kansas may reasonably request.
10
All of such items shall be reasonably satisfactory in form and substance to
First Kansas and its counsel.
Section 2.9 First Kansas's Deliveries at Closing. At the Closing, First
------------------------------------
Kansas shall deliver the following items to Acquiror:
(a) evidence of the satisfaction by First Kansas or its agents
of its obligation to pay each option holder and each holder of any First Kansas
Restricted Stock that was unvested immediately prior to the Closing Date the
amounts required under Section 3.2(g) and Section 3.2(h);
(b) a good standing certificate for First Kansas issued by the
Secretary of State of the State of Kansas and dated not more than fifteen (15)
Business Days prior to the Closing Date;
(c) a copy of the articles of incorporation of First Kansas
certified not more than fifteen (15) Business Days prior to the Closing Date by
the Secretary of State of the State of Kansas;
(d) a certificate of the Secretary or any Assistant Secretary of
First Kansas dated the Closing Date certifying a copy of the bylaws of First
Kansas;
(e) copies of resolutions of the stockholders and the board of
directors of First Kansas authorizing and approving this Agreement and the
consummation of the Contemplated Transactions, certified as of the Closing Date
by the Secretary or any Assistant Secretary of First Kansas;
(f) a good standing certificate for Bank issued by the OTS and
dated not more than fifteen (15) Business Days prior to the Closing Date;
(g) a copy of the charter of Bank certified by the OTS and dated
not more than fifteen (15) Business Days prior to the Closing Date;
(h) a certificate of the Secretary of Bank dated the Closing
Date certifying a copy of the bylaws of Bank and stating that there have been no
further amendments to the charter of Bank delivered pursuant to the immediately
preceding paragraph of this Section;
(i) a certificate executed by the President or Vice President
and Secretary or any Assistant Secretary of First Kansas, dated the Closing
Date, stating that: (i) there have been no further amendments to the articles of
incorporation and charter delivered pursuant to this Section; (ii) all of the
representations and warranties of First Kansas set forth in this Agreement, as
the same may have been updated pursuant to Section 6.6, are true and correct in
all material respects with the same force and effect as if all of such
representations and warranties were made at the Closing Date, provided, however,
that to the extent such representations and warranties expressly relate to an
earlier date, such representations shall be true and correct in all material
respects on and as of such earlier date, and provided further, that to the
extent that representations and warranties are made in this Agreement subject to
a standard of materiality or Knowledge, such
11
representations and warranties shall be true and correct in all respects; and
(iii) First Kansas has performed or complied in all material respects with all
of the covenants and obligations to be performed or complied with by it under
the terms of this Agreement on or prior to the Closing Date, provided, however,
that to the extent performance and compliance with such covenants and
obligations are subject in this Agreement to a standard of materiality, First
Kansas shall have performed and complied in all respects with such covenants and
obligations;
(j) a list of all holders of First Kansas Common Stock and Bank
Shares (as defined below) as of the Closing Date and a list of all Persons who
have the right at any time to acquire shares of First Kansas Common Stock and
Bank Shares certified in each case by the Secretary or any Assistant Secretary
of First Kansas (the "Final First Kansas Stockholder List");
(k) a legal opinion of First Kansas's counsel dated the Closing
Date in the form attached as Exhibit A;
(l) a certificate of each of First Kansas's legal counsel,
accountants and financial advisor or investment banker, if any, representing
that all fees and expenses incurred by First Kansas prior to and including the
Effective Time have been paid in full, or certificates from these professionals
that all fees and expenses incurred by First Kansas prior to and including the
Effective Time have been invoiced to First Kansas and a certificate from First
Kansas that all invoiced amounts have been paid or accrued in full;
(m) at and pursuant to the request of Acquiror, a resignation
from each of the directors and officers of First Kansas from such individual's
position as a director and an officer of First Kansas, as the case may be; and
(n) such other documents as Acquiror may reasonably request.
All of such items shall be reasonably satisfactory in form and substance to
Acquiror and its counsel.
Section 2.10 Bank Merger.
-----------
(a) Concurrently with the Merger and immediately after the
Effective Time, Acquiror and First Kansas agree to cause the merger of Bank with
and into, and under the charter of, Landmark Bank, with Landmark Bank being the
resulting bank (the "Bank Merger"). The Bank Merger will be effected pursuant to
a merger agreement in the form required by the National Bank Act, as amended
(the "National Bank Act"), and by other applicable Legal Requirements,
containing terms and conditions not inconsistent with the Agreement (the "Bank
Merger Agreement"). The Bank Merger shall occur only if the Merger is
consummated, and it shall become effective immediately after the Effective Time
or such later time as may be determined by Acquiror. To obtain the necessary
regulatory approvals for the Bank Merger to occur immediately after the
Effective Time, Acquiror and First Kansas agree to cause each of Landmark Bank
and Bank, respectively, to approve, adopt, execute and deliver the Bank Merger
Agreement and to take such other steps as are reasonably necessary prior to the
Effective Time to effect the Bank Merger.
12
(b) Notwithstanding anything contained herein to the contrary:
(i) the Bank Merger will be effective no earlier than the Effective Time; (ii)
none of Acquiror's actions in connection with the Bank Merger will unreasonably
interfere with any of the operations of First Kansas or Bank prior to the
Effective Time; and (iii) no cost or expense incurred by First Kansas or Bank
pursuant solely to this Section that is not otherwise reimbursed by Acquiror
shall be taken into account for purposes of determining the satisfaction by
First Kansas of the condition in Section 9.11.
Section 2.11 Alternative Structure. Notwithstanding anything contained
---------------------
herein to the contrary, upon receipt of First Kansas's prior written consent
(which consent shall not be unreasonably withheld), Acquiror may specify, for
any reasonable business, tax or regulatory purpose, that, before the Effective
Time, Acquiror and First Kansas shall enter into transactions structured other
than those described in this Agreement to effect the purposes of this Agreement,
including the merger of First Kansas with any Affiliate of Acquiror, and the
parties to this Agreement shall take all action necessary and appropriate to
effect, or cause to be effected, such transactions, provided, however, that no
such proposed change on the structure of the transactions contemplated in this
Agreement shall delay the Closing Date (if such a date has already been firmly
established) or adversely affect the economic benefits, the form of
consideration or the tax effect of the Merger at the Effective Time to the
holders of First Kansas Common Stock.
Section 2.12 Absence of Control. Subject to any specific provisions of
------------------
this Agreement, it is the intent of the parties to this Agreement that neither
Acquiror nor First Kansas by reason of this Agreement shall be deemed (until
consummation of the Contemplated Transactions) to control, directly or
indirectly, the other party and shall not exercise, or be deemed to exercise,
directly or indirectly, a controlling influence over the management or policies
of such other party.
ARTICLE 3
CONVERSION OF SECURITIES IN THE MERGER
Section 3.1 Manner of Merger.
----------------
(a) At the Effective Time, by virtue of the Merger and without
any action on the part of Acquiror or First Kansas or the holder of any First
Kansas Common Stock:
(i) each share of common stock, $0.01 par value per share,
of Acquisition Corp issued and outstanding immediately prior to the Effective
Time shall be converted into one validly issued, fully paid and non-assessable
share of common stock of the Surviving Corporation;
(ii) each share of First Kansas Common Stock issued and
outstanding immediately prior to the Effective Time, including shares granted
pursuant to the First Kansas Restricted Stock Plan which have fully vested prior
to the Closing Date, shall be converted into the right to receive cash in an
amount equal to (i) Nineteen Dollars ($19.00) minus (ii) the Per
13
Share Equity Adjustment, if any, as defined below, minus (iii) the Per Share
Remediation Cost, if any, as defined below (the "Purchase Price Per Share");
(iii)each share of First Kansas Common Stock held by First
Kansas as treasury stock shall not be converted into the right to receive cash,
but instead shall be canceled as a result of the Merger;
(iv) each First Kansas Stock Option shall, ipso facto and
without any action on the part of holders thereof, become and be converted into
the right to receive the difference between the Purchase Price Per Share and the
applicable option exercise price (the "Option Spread"), payable as provided
herein and less any Tax withholding required under the Code or any provision of
state or local law, and prior to the Effective Time, the board of directors of
First Kansas and the committee or committees established under the First Kansas
Stock Option Plan shall take such actions or make such determinations as may be
required under the First Kansas Stock Option Plan, subject to the approval of
Acquiror, to effect the provisions of this Agreement; and
(v) each share of First Kansas Common Stock owned by
Acquiror shall be cancelled.
(b) For the purposes of this Section 3.1, the "Per Share Equity
Adjustment", if any, shall be equal to (i) the total amount that the Adjusted
Stockholders' Equity (as calculated immediately prior to the Closing Date) is
less than Thirteen Million Six Hundred Thousand Dollars ($13,600,000) divided by
(ii) 1,040,324.
(c) For the purposes of this Section 3.1, the "Per Share Remediation
Cost", if any, shall be equal to (i) the total of the difference of the
Remediation Cost, as defined in Section 6.10(b), minus One Hundred Thousand
Dollars ($100,000) (which such difference can not be less than zero) divided by
two (2), divided by (ii) 1,040,324. For example, if the Remediation Cost is
determined by the parties to be Three Hundred Thousand Dollars ($300,000), the
Per Share Remediation Cost will be equal to the following:
($300,000-$100,000)/2 = $0.10
---------------------
1,040,324
(d) After the Effective Time, no holder of First Kansas Common Stock
that is issued and outstanding immediately prior to the Effective Time will have
any rights in respect of such First Kansas Common Stock except to receive
payment for such shares of First Kansas Common Stock in the manner provided
herein or as provided in Section 17-6712 of the Kansas Code.
14
Section 3.2 Steps of Transaction.
--------------------
(a) Within three (3) Business Days after the Effective Time, Acquiror
shall mail or cause to be mailed to each then current holder of record of a
certificate or certificates representing outstanding shares of First Kansas
Common Stock (the "Certificates"): (i) a letter of transmittal in customary form
which shall specify that delivery shall be effected, and risk of loss and title
to the Certificates shall pass, only upon delivery of the Certificates to the
Paying Agent; and (ii) instructions for use in surrendering such Certificates in
exchange for payment therefor (collectively, the "Transmittal Materials").
Pursuant to the terms of a mutually agreeable paying agent agreement, the
parties hereto agree to appoint Registrar and Transfer Company, as paying agent
(the "Paying Agent") for the parties to effect the surrender of the Certificates
in exchange for cash in an amount determined as provided in this Agreement.
Acquiror shall use all reasonable efforts to mail or cause to be mailed
Transmittal Materials to all persons who become holders of First Kansas Common
Stock subsequent to the Mailing Date and no later than the close of business of
the third (3rd) Business Day prior to the Closing Date.
(b) Acquiror shall have the discretion, which it may delegate in
whole or in part to the Paying Agent, to determine whether Transmittal Materials
have been properly completed, signed and submitted and to disregard any defects
it determines are immaterial. The decision of Acquiror or the Paying Agent on
such matters shall be conclusive and binding. Neither Acquiror nor the Paying
Agent shall be under any obligation to notify any person of any defect in the
materials submitted to the Paying Agent.
(c) Acquiror shall cause the Paying Agent to deliver to each holder
of First Kansas Common Stock who has theretofore submitted effective Transmittal
Materials accompanied by the Certificates covered by such materials a check in
an amount equal to the Purchase Price Per Share times the number of shares of
First Kansas Common Stock theretofore represented by the Certificates so
surrendered, after giving effect to any required Tax withholdings. The amount
paid by Acquiror pursuant to this Section 3.2(c) shall constitute and represent
full satisfaction of all rights pertaining to such shares of First Kansas Common
Stock.
(d) Until so surrendered, each outstanding Certificate (other than
the Certificates representing Dissenting Shares, representing First Kansas
Common Stock held in treasury by First Kansas and representing First Kansas
Common Stock held by Acquiror) shall, for all purposes, solely represent the
cash amount into and for which such shares have been so converted; provided,
however, that upon surrender of a Certificate, there shall be paid to the record
holder or holders of the Certificate, the cash amount, without interest or any
dividends thereon, represented by such Certificate.
(e) After the Effective Time, there shall be no further registration
or transfers on the stock transfer books of First Kansas of the shares of First
Kansas Common Stock that were outstanding immediately prior to the Effective
Time. Any Person whose name does not appear upon the Final First Kansas
Stockholder List who submits Certificates to the Paying Agent shall be entitled
to receive no cash payment, and any such Certificates shall be canceled.
(f) If any cash amount representing the Purchase Price Per Share is
to be paid
15
to any Person other than the Person in whose name the Certificate surrendered in
exchange therefor is registered, it shall be a condition to such right to
receive such payment that the Certificate so surrendered shall be properly
endorsed, accompanied by all documents required to evidence and effect such
transfer and otherwise in proper form for transfer and that the person
requesting such payment shall pay to Acquiror any transfer or other Taxes
required by reason of the payment of the Purchase Price Per Share to or in the
name of a Person other than the Person in whose name the Certificate surrendered
in exchange therefor is registered, or otherwise required, or shall establish to
the satisfaction of Acquiror that such Tax has been paid or is not payable.
(g) Immediately prior to the Effective Time, all outstanding First
Kansas Stock Options shall become immediately exercisable and fully vested.
Immediately prior to the Effective Time, all outstanding First Kansas Stock
Options shall be cancelled and First Kansas shall pay each holder, for each
First Kansas Stock Option held, an amount in cash equal to the Option Spread
reduced by any required Tax withholdings. The payment of the Option Spreads
pursuant to this Article shall be delivered and paid by First Kansas in full
satisfaction of all rights pertaining to the First Kansas Stock Option Plans and
the First Kansas Stock Options.
(h) Immediately prior to the Effective Time, all unvested shares of
stock awarded under the First Kansas Restricted Stock Plan ("First Kansas
Restricted Stock") shall become fully vested. Immediately prior to the Effective
Time, all outstanding First Kansas Restricted Stock shall be canceled and First
Kansas shall pay each holder, for each share of First Kansas Restricted Stock
held, an amount in cash equal to the Purchase Price Per Share reduced by any
required Tax withholdings. The payment of the Purchase Price Per Share pursuant
to this Section 3.2(h) shall be delivered and paid by First Kansas in full
satisfaction of all rights pertaining to the First Kansas Restricted Stock Plan
and the First Kansas Restricted Stock.
(i) The Surviving Corporation shall be entitled to deduct and
withhold from the consideration otherwise payable pursuant to this Agreement to
any holder of shares of First Kansas Common Stock such amounts as it is required
to deduct and withhold with respect to the making of such payment under the Code
or any other Legal Requirement. To the extent that amounts are so withheld by
the Surviving Corporation, such withheld amounts shall be treated for all
purposes of this Agreement as having been paid to the holder of the shares of
First Kansas Common Stock in respect of which such deduction and withholding was
made by the Surviving Corporation, except that such treatment shall not apply to
any withholding Tax imposed by any foreign jurisdiction.
(j) If any Certificate shall have been lost, stolen or destroyed,
upon the making of an affidavit of that fact by the person claiming such
Certificate to be lost, stolen or destroyed and, if required by the Surviving
Corporation, the posting by such person of a bond, in such reasonable amount as
the Surviving Corporation may direct, as indemnity against any claim that may be
made against it with respect to such Certificate, the Paying Agent will issue in
exchange for such lost, stolen or destroyed Certificate a check for the cash to
which the holders thereof are entitled pursuant to this Agreement.
16
Section 3.3 Return of Funds by Paying Agent; Escheat. At any time
-------------------------------------------
following the six (6) month anniversary of the Effective Time, the Surviving
Corporation shall be entitled to require the Paying Agent to deliver to the
Surviving Corporation any funds which had been made available to the Paying
Agent and not disbursed to holders of shares of First Kansas Common Stock
(including all interest and other income received by the Paying Agent in respect
of all funds made available to it), the Certificates and other documents in its
possession relating to the Merger, and the Paying Agent's duties shall
terminate. Thereafter, each holder of a Certificate formerly representing shares
of First Kansas Common Stock may surrender such Certificate to the Surviving
Corporation or its successor and receive in consideration therefor the cash
amount representing the Purchase Price Per Share therefor, without any interest
or dividends thereon. Notwithstanding anything in this Article or elsewhere in
this Agreement to the contrary, neither the Paying Agent nor any party hereto
shall be liable to a former holder of First Kansas Common Stock or any First
Kansas Stock Option for any funds delivered to a public official pursuant to any
applicable escheat or abandoned property laws.
Section 3.4 Dissenting Shares.
-----------------
(a) Notwithstanding anything to the contrary contained in this
Agreement, to the extent appraisal rights are available to First Kansas
stockholders pursuant to Section 17-6712 of the Kansas Code, any shares held by
a Person who delivers to First Kansas, prior to the time the vote is taken by
First Kansas's stockholders on this Agreement and the Merger, a written demand
for payment for his or her shares, whose shares were not voted in favor of the
Merger and who complies with all of the provisions of the Kansas Code concerning
the rights of such Person to dissent from the Merger and to require appraisal of
such Person's shares and who has not withdrawn such objection or waived such
rights prior to the Closing Date ("Dissenting Shares") shall not be converted
pursuant to Section 3.2 but shall become the right to receive such consideration
as may be determined to be due to the holder of such Dissenting Shares pursuant
to the Kansas Code, provided, however, that each Dissenting Share held by a
Person at the Effective Time who shall, after the Effective Time, withdraw the
demand for appraisal or lose the right of appraisal, in either case pursuant to
the Kansas Code shall be deemed to be converted, as of the Effective Time, into
cash in an amount determined as provided in this Agreement Consideration upon
surrender in the manner provided in Section 3.4 of the Certificates, that,
immediately prior to the Effective Time, evidenced such shares.
(b) First Kansas shall give Acquiror: (i) prompt written notice of
any demands for appraisal received by First Kansas, withdrawals of such demands
and any other instruments served pursuant to the Kansas Code and received by
First Kansas; and (ii) the opportunity to direct all negotiations and
proceedings with respect to demands for appraisal under the Kansas Code. First
Kansas shall not, except with the prior written consent of Acquiror, make any
payment with respect to any demands for appraisal or offer to settle any such
demands.
17
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF FIRST KANSAS
First Kansas hereby represents and warrants to Acquiror that the
following are true and correct as of the date hereof, and will be true and
correct as of the Effective Time:
Section 4.1 First Kansas Organization. First Kansas (a) is a
----------------------------
corporation duly organized, validly existing and in good standing under the laws
of the State of Kansas and is also in good standing in each other jurisdiction
in which the nature of the business conducted or the properties or assets owned
or leased by it makes such qualification necessary; (b) is registered with the
OTS as a unitary savings and loan holding company pursuant to the Home Owner's
Loan Act, as amended ("HOLA"); and (c) has full power and authority, corporate
and otherwise, to operate as a thrift holding company and to own, operate and
lease its properties as presently owned, operated and leased, and to carry on
its business as it is now being conducted. Copies of the articles of
incorporation and bylaws of First Kansas and all amendments thereto set forth in
Schedule 4.1 of the First Kansas Book of Schedules are complete and correct.
First Kansas owns no voting stock or equity securities of any corporation,
association, partnership or other entity, other than all of the voting stock of
Bank and as set forth on Schedule 4.1 of the First Kansas Book of Schedules.
Section 4.2 Bank Organization. Bank is a federal savings bank duly
------------------
organized, validly existing and in good standing under the laws of the United
States of America. Bank has full power and authority, corporate and otherwise,
to own, operate and lease its properties as presently owned, operated and
leased, and to carry on its business as it is now being conducted, and is duly
qualified to do business and is in good standing in each jurisdiction in which
the nature of the business conducted or the properties or assets owned or leased
by it makes such qualification necessary. Copies of the charter and bylaws of
Bank and all amendments thereto set forth in Schedule 4.2 of the First Kansas
Book of Schedules are complete and correct. Bank owns no voting stock or equity
securities of any corporation, association, partnership or other entity, other
than as shown on Schedule 4.2 of the First Kansas Book of Schedules.
Section 4.3 Authorization. First Kansas has the requisite corporate
-------------
power and authority to enter into and perform its obligations under this
Agreement and the execution, delivery and performance of this Agreement by First
Kansas and the consummation by it of the transactions contemplated thereby, have
been duly authorized by all necessary corporate action, subject to stockholder
approval. This Agreement constitutes a legal, valid and binding obligation of
First Kansas enforceable in accordance with its terms except as such enforcement
may be limited by bankruptcy, insolvency, reorganization or other similar laws
and subject to general principles of equity.
Section 4.4 No Conflict. Neither the execution nor delivery of this
------------
Agreement nor the consummation or performance of any of the Contemplated
Transactions will, directly or indirectly (with or without notice or lapse of
time): (a) contravene, conflict with or result in a violation of any provision
of the articles of incorporation, the charter, the bylaws or any resolution
adopted by the board of directors or stockholders of, First Kansas or any First
Kansas Subsidiary; (b) contravene, conflict with or result in a violation of any
Legal Requirement or any Order to which First Kansas or any First Kansas
18
Subsidiary, or any of the assets that are owned or used by them, may be subject,
other than any of the foregoing that would be satisfied by compliance with the
provisions of the HOLA, the Securities Act, the Exchange Act and the Kansas
Code; and (c) contravene, conflict with or result in a violation or breach of
any provision of, or give any Person the right to declare a default or exercise
any remedy under, or to accelerate the maturity or performance of, or to cancel,
terminate or modify any material Applicable Contract to which First Kansas or
any First Kansas Subsidiary is a party or by which any of their respective
assets is bound; or (d) result in the creation of any lien, charge or
encumbrance upon, or with respect to, any of the assets owned or used by First
Kansas or any First Kansas Subsidiary. Except for the requisite approval of its
stockholders, neither First Kansas nor any First Kansas Subsidiary is or will be
required to give any notice to, or obtain any consent from, any Person in
connection with the execution and delivery of this Agreement or the consummation
or performance of any of the Contemplated Transactions.
Section 4.5 First Kansas Capitalization. The authorized capital stock
----------------------------
of First Kansas consists, and at September 30, 2003, consisted of: (a) 8,000,000
shares of common stock, $0.10 par value per share, of which 1,553,938 shares
were issued, and 645,693 shares were held in the treasury of First Kansas as of
that date; and (b) 2,000,000 shares of preferred stock, $0.10 par value per
share, none of which shares were issued and outstanding. The maximum number of
shares of First Kansas Common Stock (assuming for this purpose that share
equivalents constitute First Kansas Common Stock) that would be outstanding
immediately prior to the Effective Time (including treasury shares) if all
options, warrants, conversion rights and other rights with respect thereto were
exercised and the restrictions on any restricted stock were no longer applicable
is 1,686,017 shares. All of the outstanding shares of capital stock of First
Kansas have been duly and validly authorized and issued and are fully paid and
nonassessable. To the Knowledge of First Kansas and except as disclosed in this
Agreement or on the Schedules, none of the shares of authorized capital stock of
First Kansas are, nor on the Closing Date will they be, subject to any claim of
right except pursuant to this Agreement. Except as contemplated in this
Agreement or as set forth in Schedule 4.5 of the First Kansas Book of Schedules,
there are, as of the date of this Agreement, no outstanding subscriptions,
contracts, conversion privileges, options, warrants, calls or other rights
obligating First Kansas or any First Kansas Subsidiary to issue, sell or
otherwise dispose of, or to purchase, redeem or otherwise acquire, any shares of
capital stock of First Kansas or any First Kansas Subsidiary. There are no
outstanding securities of First Kansas that are convertible into, or
exchangeable for, any shares of First Kansas's capital stock, and except as
provided in this Section or otherwise disclosed in this Agreement, First Kansas
is not a party to any Contract relating to the issuance, sale or transfer of any
equity securities or other securities of First Kansas. None of the shares of
First Kansas Common Stock were issued in violation of any federal or state
securities laws or any other Legal Requirement. First Kansas does not own or
have any Contract to acquire any equity securities or other securities of any
Person or any direct or indirect equity or ownership interest in any other
business except for the capital stock of Bank and as set forth in Schedule 4.5
of the First Kansas Book of Schedules. Except as disclosed in or permitted by
this Agreement or as provided on Schedule 4.5 of the First Kansas Book of
Schedules, no shares of First Kansas capital stock have been purchased, redeemed
or otherwise acquired, directly or indirectly, by First Kansas or
19
any First Kansas Subsidiary and no dividends or other distributions payable in
any equity securities of First Kansas or any First Kansas Subsidiary have been
declared, set aside, made or paid to the stockholders of First Kansas.
Section 4.6 Bank Capitalization. The authorized capital stock of Bank
--------------------
consists, and at the Effective Time will consist, (a) 8,000,000 shares of common
stock, $0.10 par value per share, and (b) 2,000,000 shares of preferred stock,
$0.10 par value per share. 100,000 shares of common stock are, and immediately
prior to the Closing Date will be, duly authorized, validly issued and
outstanding, fully paid and nonassessable; and none of the shares of preferred
stock are, and immediately prior to the Closing Date will be, issued (the shares
of common stock and preferred stock together, the "Bank Shares"). First Kansas
is, and will be on the Closing Date, the record and beneficial owner of one
hundred percent (100%) of the Bank Shares, free and clear of any lien or
encumbrance whatsoever, except as set forth in Schedule 4.6 of the First Kansas
Book of Schedules. The Bank Shares are, and will be on the Closing Date, freely
transferable and are, and will be on the Closing Date, subject to no claim of
right except pursuant to this Agreement and as set forth in Schedule 4.6 of the
First Kansas Book of Schedules. There are no options, warrants, rights, calls or
commitments of any character relating to any additional shares of the capital
stock of Bank. No capital stock or other security issued by Bank has been issued
in violation of, or without compliance with, any preemptive rights of
stockholders. There are no outstanding securities of Bank that are convertible
into, or exchangeable for, any shares of Bank's capital stock, and Bank is not a
party to any Contract relating to the issuance, sale or transfer of any equity
securities or other securities of Bank. Bank does not own, or have any Contract
to acquire, any equity securities or other securities of any Person or any
direct or indirect equity or ownership interest in any other business, except as
set forth in Schedule 4.6 of the First Kansas Book of Schedules.
Section 4.7 Financial Statements and Reports. True, correct and
-----------------------------------
complete copies of the following financial statements of First Kansas are
included in Schedule 4.7 of the First Kansas Book of Schedules:
(a) Consolidated Balance Sheets and the related Statements of
Income, Statements of Changes in Stockholders' Equity and Statements of Cash
Flows of First Kansas for the years ended December 31, 2000, 2001 and 2002;
(b) Consolidated Balance Sheet and the related Statement of
Income of First Kansas for the six months ended June 30, 2003; and
(c) TFRs for Bank at the close of business on December 31, 2000,
2001 and 2002, and for the six months ended June 30, 2003.
The financial statements described in this Section (the "First Kansas
Financial Statements") are complete and correct in all material respects and
fairly and accurately present the respective financial position, assets,
liabilities and results of operations of First Kansas and the First Kansas
Subsidiaries at the respective dates of, and for the periods referred to in, the
First Kansas Financial Statements. The financial statements described in clause
(a) above are audited statements and have been prepared in conformity with GAAP.
The financial statements described
20
in clauses (b) and (c) above have been prepared on a basis consistent with past
accounting practices and as required by applicable rules or regulations and
fairly present the consolidated financial condition and results of operations at
the dates and for the periods presented, subject to year-end audit adjustments
(which changes in the aggregate would not reasonably be expected to have a
Material Adverse Effect on First Kansas on a consolidated basis). The First
Kansas Financial Statements do not include any material assets or omit to state
any material liabilities, absolute or contingent, or other facts, which
inclusion or omission would render the First Kansas Financial Statements
misleading in any material respect.
Section 4.8 Books and Records. The books of account, minute books,
------------------
stock record books and other records of First Kansas and each First Kansas
Subsidiary are complete and correct in all material respects and have been
maintained in accordance with sound business practices and all applicable Legal
Requirements, including the maintenance of any adequate system of internal
controls. The minute books of First Kansas and each First Kansas Subsidiary
contain accurate and complete records in all material respects of all meetings
held of, and corporate action taken by, its respective stockholders, board of
directors and committees of the board of directors. At the Closing, all of those
books and records will be in the possession of First Kansas and the First Kansas
Subsidiaries.
Section 4.9 Title to Properties. First Kansas and each First Kansas
--------------------
Subsidiary has good and marketable title to all assets and properties, whether
real or personal, tangible or intangible, that it purports to own, subject to no
valid liens, mortgages, security interests, encumbrances or charges of any kind
except: (a) as noted in the most recent First Kansas Financial Statement or in
Schedule 4.9 of the First Kansas Book of Schedules; (b) statutory liens for
Taxes not yet delinquent or being contested in good faith by appropriate
Proceedings and for which appropriate reserves have been established and
reflected on the First Kansas Financial Statements; (c) pledges or liens
required to be granted in connection with the acceptance of government deposits,
granted in connection with repurchase or reverse repurchase agreements or
otherwise incurred in the Ordinary Course of Business; and (d) minor defects and
irregularities in title and encumbrances that do not materially impair the use
thereof for the purposes for which they are held. Except as set forth in
Schedule 4.9 of the First Kansas Book of Schedules, First Kansas and each First
Kansas Subsidiary as lessee has the right under valid and existing leases to
occupy, use, possess and control any and all of the respective property leased
by it. Except where any failure would not reasonably be expected to have a
Material Adverse Effect on First Kansas on a consolidated basis, all buildings
and structures owned by First Kansas and each First Kansas Subsidiary lie wholly
within the boundaries of the real property owned or validly leased by it, do not
encroach upon the property of, or otherwise conflict with the property rights
of, any other Person
Section 4.10 Condition and Sufficiency of Assets. Except as set forth
------------------------------------
in Schedule 4.10 of the First Kansas Book of Schedules, the buildings,
structures and equipment of First Kansas and each First Kansas Subsidiary are in
good operating condition and repair, and are adequate for the uses to which they
are being put, and none of such buildings, structures or equipment is in need of
maintenance or repairs except for ordinary, routine maintenance and repairs that
are not material in the aggregate in nature or in cost. Except where any failure
would not reasonably be expected to have a Material Adverse Effect on First
Kansas on a consolidated
21
basis, the real property, buildings, structures and equipment owned or leased by
First Kansas and each First Kansas Subsidiary are in compliance with the
Americans with Disabilities Act of 1990, as amended, and the regulations
promulgated thereunder, and all other building and development codes and other
restrictions, including subdivision regulations, building and construction
regulations, drainage codes, health, fire and safety laws and regulations,
utility tariffs and regulations, conservation laws and zoning laws and
ordinances. The assets and properties, whether real or personal, tangible or
intangible, that First Kansas or any First Kansas Subsidiary purport to own are
sufficient for the continued conduct of the business of First Kansas and such
First Kansas Subsidiary after the Closing in substantially the same manner as
conducted prior to the Closing.
Section 4.11 Loan Loss Reserve. All loans and loan commitments extended
-----------------
by Bank and any extensions, renewals or continuations of such loans and loan
commitments (the "First Kansas Loans") were made in accordance with customary
lending standards of Bank in the Ordinary Course of Business. The First Kansas
Loans are evidenced by appropriate and sufficient documentation and constitute
valid and binding obligations to Bank enforceable in accordance with their
terms, except as may be limited by any bankruptcy, insolvency, moratorium or
other laws affecting creditors' rights generally by the exercise of judicial
discretion. All such First Kansas Loans are, and at the Closing will be, free
and clear of any encumbrance or other charge, except for permitted liens, and
Bank has materially complied, and at the Closing will have materially complied
with, all Legal Requirements relating to the First Kansas Loans. The reserve for
probable loan and lease losses of Bank is adequate in all material respects to
provide for probable or specific losses, net of recoveries relating to loans
previously charged off. None of the First Kansas Loans is subject to any
material offset or claim of offset, and the aggregate loan balances in excess of
First Kansas's consolidated reserve for loan and lease losses are to First
Kansas's Knowledge, based on past loan loss experience, collectible in
accordance with their terms (except as limited above) and all uncollectible
loans have been charged off.
Section 4.12 Undisclosed Liabilities; Adverse Changes. Except as set
------------------------------------------
forth in Schedule 4.12 of the First Kansas Book of Schedules, neither First
Kansas nor any First Kansas Subsidiary has any material liabilities or
obligations of any nature (whether known or unknown and whether absolute,
accrued, contingent or otherwise), except for liabilities or obligations
reflected or reserved against in the First Kansas Financial Statements,
liabilities and obligations arising under contracts and arrangements which are
either set forth in Schedule 4.18 of the First Kansas Book of Schedules, or are
of a type described in Section 4.18, but not included in Schedule 4.18 of the
First Kansas Book of Schedules because the amounts involved do not meet the
amounts specified for inclusion in Schedule 4.18 of the First Kansas Book of
Schedules, current liabilities incurred in the Ordinary Course of Business since
the respective dates thereof and other liabilities or obligations that in the
aggregate would not reasonably be expected to have a Material Adverse Effect on
First Kansas on a consolidated basis. Since the date of the latest First Kansas
Financial Statement, there has not been any change in the business, operations,
properties, prospects, assets or condition of First Kansas or any First Kansas
Subsidiary, and no event has occurred or circumstance exists, that has had, or
22
would reasonably be expected to have, a Material Adverse Effect on First Kansas
on a consolidated basis.
Section 4.13 Taxes. First Kansas and each First Kansas Subsidiary has
-----
duly filed or will duly file all material Tax Returns required to be filed by it
for all periods prior to the Closing, and each such Tax Return is or will be
complete and accurate in all material respects. Except as set forth on Schedule
4.13 of the First Kansas Book of Schedules, neither First Kansas nor any First
Kansas Subsidiary is: (a) delinquent in the payment of any Taxes shown on such
Tax Returns or on any assessments received by it for such Taxes; (b) a party to
or is the subject of any pending Order, Proceeding, audit, examination or
investigation by any Regulatory Authority that is related to assessment or
collection of Taxes paid or payable by First Kansas or any First Kansas
Subsidiary for any year, nor does First Kansas have any Knowledge of any of the
foregoing that are Threatened; or (c) subject to any agreement extending the
period for assessment or collection of any Tax. None of the Tax liabilities of
First Kansas or any First Kansas Subsidiary has ever been audited by any
Regulatory Authority since January 1, 1998. The reserve for Taxes in the audited
financial statements of First Kansas for the year ended December 31, 2002, is
adequate to cover all of the Tax liabilities of First Kansas and each First
Kansas Subsidiary that may become payable in future years in respect to any
transactions consummated prior to December 31, 2002. Neither First Kansas nor
any First Kansas Subsidiary has and, to First Kansas's Knowledge, will not have
any liability for Taxes of any nature for or in respect of the operation of its
respective businesses or ownership of its respective assets from December 31,
2002, up to and including the Effective Time, except to the extent reflected on
the audited First Kansas Financial Statements for the year ended December 31,
2002, or on the Subsequent First Kansas Financial Statements (as such term is
defined below) or otherwise reflected in the books and records of First Kansas
and the First Kansas Subsidiaries for the period following its then most recent
of the Subsequent First Kansas Financial Statements. First Kansas has delivered
to Acquiror true, correct and complete copies of all income Tax Returns
previously filed with respect to the last three fiscal years of First Kansas and
the First Kansas Subsidiaries and any tax examination reports and statements of
deficiencies assessed or agreed to for any of First Kansas or any First Kansas
Subsidiary for any such time period.
Section 4.14 Compliance With ERISA. Except as set forth in Schedule
----------------------
4.14 of the First Kansas Book of Schedules, all employee benefit plans (as
defined in Section 3(3) of ERISA) established or maintained by First Kansas or
any First Kansas Subsidiary or to which First Kansas or any First Kansas
Subsidiary contributes, are in compliance in all material respects with all
applicable requirements of ERISA, and are in compliance in all material respects
with all applicable requirements (including qualification and non-discrimination
requirements in effect as of the Effective Time) of the Code for obtaining the
tax benefits the Code thereupon permits with respect to such employee benefit
plans. Each employee benefit plan established or maintained by First Kansas or
and First Kansas Subsidiaries that is intended to be a pension, profit sharing,
stock bonus, savings or employee stock ownership plan that is qualified under
Section 401(a) of the Code has been determined by the Internal Revenue Service
to qualify under Section 401(a) of the Code and an application for determination
of such qualification has been timely made to the Internal Revenue Service prior
to the end of the applicable remedial amendment period under Section 401(b) of
the Code (a copy of each such determination letter and each pending
23
application is included in Schedule 4.14 of the First Kansas Book of Schedules.
To the knowledge of First Kansas, no employee benefit plan of First Kansas or
any First Kansas Subsidiary has engaged in or been a party to a "prohibited
transaction" (as defined in Section 406 of ERISA or Section 4975 of the Code)
without an exemption thereto under Section 408 of ERISA or Section 4975(d) of
the Code. For purposes of this Section, non-compliance with the Code and ERISA
is material if such non-compliance would reasonably be expected to have a
Material Adverse Effect on First Kansas. No such employee benefit plan has, or
as of the Closing will have, any amount of unfunded benefit liabilities (as
defined in Section 4001(a)(18) of ERISA) for which First Kansas or any First
Kansas Subsidiary would be liable to any Person under Title IV of ERISA if any
such employee benefit plan were terminated as of the Closing. Each employee
benefit plan as defined in Section 3(3) of ERISA satisfies the minimum funding
standards of Section 412 of the Code (if applicable). There would be no
obligations of First Kansas or any First Kansas Subsidiary under Title IV of
ERISA or under the terms of the plan relating to any employee benefit plan that
is a multiple employer plan if any such plan were terminated as of the Closing
or if First Kansas or any First Kansas Subsidiary withdrew from any such plan as
of the Closing. No payments will be made as a result of the Merger that will be
subject to nondeductibility under Section 280G of the Code or subject to an
excise tax under Section 4999 of the Code. There are no material outstanding
liabilities of any such employee benefit plan other than liabilities for
benefits to be paid to participants in such plans and their beneficiaries in
accordance with the terms of such plan and the liabilities of the First Kansas
ESOP related to the First Kansas ESOP Loan. Schedule 4.14 of the First Kansas
Book of Schedules includes a true and correct copy of the promissory note and
all agreements relating to the First Kansas ESOP Loan. First Kansas has provided
notice of withdrawal from its participation in the multiple employer defined
benefit plan and all correspondence regarding such withdrawal is included in
Schedule 4.14 of the First Kansas Book of Schedules.
Section 4.15 Compliance With Legal Requirements. First Kansas and each
----------------------------------
First Kansas Subsidiary holds all licenses, certificates, permits, franchises
and rights from all appropriate Regulatory Authorities necessary for the conduct
of its respective business and where failure to do so would reasonably be
expected to have a Material Adverse Effect on First Kansas. Except as set forth
in Schedule 4.15 of the First Kansas Book of Schedules, First Kansas and each
First Kansas Subsidiary is, and at all times since January 1, 2000, has been, in
compliance with each Legal Requirement that is or was applicable to it or to the
conduct or operation of its respective businesses or the ownership or use of any
of its respective assets, except in each case where any non-compliance did not
have, or would not reasonably be expected to have, a Material Adverse Effect on
First Kansas on a consolidated basis. No event has occurred or circumstance
exists that (with or without notice or lapse of time): (a) may constitute or
result in a violation by First Kansas or any First Kansas Subsidiary of, or a
failure on the part of First Kansas or any First Kansas Subsidiary to comply
with, any Legal Requirement; or (b) may give rise to any obligation on the part
of First Kansas or any First Kansas Subsidiary to undertake, or to bear all or
any portion of the cost of, any remedial action of any nature in connection with
a failure to comply with any Legal Requirement, except for any of the foregoing
that would not reasonably be expected to have a Material Adverse Effect on First
Kansas on a consolidated basis. Except as set forth in Schedule 4.15 of the
First Kansas Book of Schedules, neither First Kansas nor any First Kansas
Subsidiary has received, at any time since January 1, 2000, any notice or other
24
communication (whether oral or written) from any Regulatory Authority or any
other Person, nor does First Kansas have any Knowledge, regarding any actual,
alleged, possible or potential: (x) violation of, or failure to comply with, any
material Legal Requirement to which First Kansas or any First Kansas Subsidiary,
or any of the assets owned or used by any of them, is or has been subject, or
investigation with respect to any of the foregoing conducted by any Regulatory
Authority; or (y) obligation on the part of First Kansas or any First Kansas
Subsidiary to undertake, or to bear all or any portion of the cost of, any
remedial action of any nature in connection with a failure to comply with any
material Legal Requirement.
Section 4.16 Legal Proceedings; Orders. Schedule 4.16 of the First
---------------------------
Kansas Book of Schedules is a true and correct list of all Proceedings and
Orders pending, entered into or, to the Knowledge of First Kansas, Threatened
against, affecting or involving First Kansas or any First Kansas Subsidiary or
any of their respective assets or businesses, or the Contemplated Transactions,
since January 1, 2000, that had, or would reasonably be expected to have, a
Material Adverse Effect on First Kansas on a consolidated basis or that would
impair First Kansas's ability to consummate any of the Contemplated
Transactions, and there is no fact to First Kansas's Knowledge that would
provide a basis for any other Proceeding or Order involving First Kansas or any
First Kansas Subsidiary, or any of its respective officers or directors in their
capacities as such, or its assets, business or goodwill that would reasonably be
expected to have a Material Adverse Effect on First Kansas or that would impair
First Kansas's ability to consummate any of the Contemplated Transactions. To
the Knowledge of First Kansas, no officer, director, agent or employee of First
Kansas or any First Kansas Subsidiary is subject to any Order that prohibits
such officer, director, agent or employee from engaging in or continuing any
conduct, activity or practice relating to the businesses of First Kansas or any
First Kansas Subsidiary.
Section 4.17 Absence of Certain Changes and Events. Except as set forth
-------------------------------------
in Schedule 4.17 of the First Kansas Book of Schedules, since December 31, 2002,
First Kansas and each First Kansas Subsidiary has conducted its respective
business only in the Ordinary Course of Business and with respect to each there
has not been any:
(a) change in its authorized or issued capital stock; grant of
any stock option or right to purchase shares of its capital stock; grant of any
shares pursuant to the First Kansas Restricted Stock Plan; issuance of any
security convertible into such capital stock or evidences of indebtedness
(except in connection with customer deposits); grant of any registration rights;
purchase, redemption, retirement or other acquisition by it of any shares of any
such capital stock; or declaration or payment of any dividend or other
distribution or payment in respect of shares of its capital stock (except for
payment of dividends and distributions from any wholly-owned First Kansas
Subsidiary to First Kansas and pursuant to Section 6.4);
(b) amendment to its certificate or articles of incorporation,
charter, articles of association or bylaws or any resolutions adopted by its
board of directors or stockholders with respect to the same;
(c) payment or increase of any bonuses, salaries or other
compensation to any of its stockholders, directors, officers or employees,
except for normal increases in the Ordinary
25
Course of Business or in accordance with any then existing First Kansas Employee
Benefit Plan (as defined below), or entry by it into any employment, consulting,
non-competition, change in control, severance or similar Contract with any
stockholder, director, officer or employee;
(d) adoption, amendment (except for any amendment necessary to
comply with any Legal Requirement) or termination of, or increase in the
payments to or benefits under, First Kansas Employee Benefit Plan, including the
amendment, revision or termination, or increase in the payments under, any
agreement or promissory note evidencing the First Kansas ESOP Loan;
(e) material damage to or destruction or loss of any of its
assets or property, whether or not covered by insurance;
(f) entry into, termination or extension of, or receipt of
notice of termination of, any joint venture or similar agreement pursuant to any
Contract or any similar transaction;
(g) except for this Agreement, entry into any Contract or
incurrence of any obligation or liability (fixed or contingent) other than in
the Ordinary Course of Business;
(h) material change in any existing lease of real or personal
property to which it is a party;
(i) sale (other than any sale in the Ordinary Course of
Business), lease or other disposition of any of its assets or properties or
mortgage, pledge or imposition of any lien or other encumbrance upon any of its
material assets or properties, except for tax and other liens that arise by
operation of law and with respect to which payment is not past due and except
for pledges or liens: (i) required to be granted in connection with the
acceptance by any First Kansas Subsidiary of government deposits; (ii) granted
in connection with repurchase or reverse repurchase agreements; or (iii)
otherwise incurred in the Ordinary Course of Business;
(j) incurrence by it of any obligation or liability (fixed or
contingent) other than in the Ordinary Course of Business;
(k) other than in the Ordinary Course of Business, cancellation
or waiver by it of any debts, claims or rights with a value in excess of
$10,000;
(l) any investment by it of a capital nature exceeding $30,000
or aggregate investments of a capital nature exceeding $60,000;
(m) except for the Contemplated Transactions, merger or
consolidation with or into any other Person, or acquisition of any stock, equity
interest or business of any other Person;
(n) transaction for the borrowing or loaning of monies, other
than in the Ordinary Course of Business;
(o) suffered any change or changes having a Material Adverse
Effect on it, or in the operation or conduct of its respective business;
26
(p) conducted its respective business in any manner other than
substantially as it was being conducted prior to such time;
(q) purchased any investment security that is callable prior to
its stated maturity or that has a stated maturity of thirty (30) months or more
or has a purchase price of greater than $250,000;
(r) obtained any advances with maturities of greater than one
(1) year from the Federal Home Loan Bank;
(s) agreed to a material change in its accounting methods used;
or
(t) agreement, whether oral or written, by it to do any of the
foregoing.
Section 4.18 Properties, Contracts, Employee Benefit Plans and Other
---------------------------------------------------------
Agreements. Except for loan agreements evidencing loans or loan commitments made
- ----------
by Bank in the Ordinary Course of Business, Schedule 4.18 of the First Kansas
Book of Schedules lists or describes the following with respect to First Kansas
and each First Kansas Subsidiary:
(a) all real property owned by First Kansas and each First
Kansas Subsidiary and the principal buildings and structures located thereon,
together with a legal description of such real estate, and each lease of real
property to which First Kansas and each First Kansas Subsidiary is a party,
identifying the parties thereto, the annual rental payable, the expiration date
thereof and a brief description of the property covered, and in each case of
either owned or leased real property, the proper identification, if applicable,
of each such property as a branch or main office or other office of First Kansas
or any First Kansas Subsidiary;
(b) all loan and credit agreements, conditional sales contracts
or other title retention agreements or security agreements relating to money
borrowed by First Kansas or any First Kansas Subsidiary, exclusive of deposit
agreements with customers of Bank entered into in the Ordinary Course of
Business, agreements for the purchase of federal funds and repurchase
agreements;
(c) each Applicable Contract that involves performance of
services or delivery of goods or materials by First Kansas or any First Kansas
Subsidiary of an amount or value in excess of $30,000;
(d) each Applicable Contract that was not entered into in the
Ordinary Course of Business and that involves expenditures or receipts of First
Kansas or any First Kansas Subsidiary in excess of $30,000;
(e) each Applicable Contract not referred to elsewhere in this
Section which:
(i) relates to the future purchase of goods or services in
excess of the requirements of its respective business at current levels or for
normal operating purposes;
27
(ii) materially affect the business or financial condition
of First Kansas or any First Kansas Subsidiary;
(f) each lease, rental, license, installment and conditional
sale agreement and other Applicable Contract affecting the ownership of, leasing
of, title to or use of any personal property having a value per item or
requiring payments in excess of $30,000, or with terms of more than one year;
(g) each licensing agreement or other Applicable Contract with
respect to patents, trademarks, copyrights, or other intellectual property
(collectively, "Intellectual Property Assets"), including agreements with
current or former employees, consultants or contractors regarding the
appropriation or the non-disclosure of any of the Intellectual Property Assets
of First Kansas or any First Kansas Subsidiary;
(h) each collective bargaining agreement and other Applicable
Contract to or with any labor union or other employee representative of a group
of employees;
(i) each joint venture, partnership and other Applicable
Contract (however named) involving a sharing of profits, losses, costs or
liabilities by First Kansas or any First Kansas Subsidiary with any other
Person;
(j) each Applicable Contract containing covenants that in any
way purport to restrict the business activity of First Kansas or any First
Kansas Subsidiary or any Affiliate of any of the foregoing, or limit the ability
of First Kansas or any First Kansas Subsidiary or any Affiliate of any of the
foregoing to engage in any line of business or to compete with any Person;
(k) each Applicable Contract providing for payments to or by any
Person based on sales, purchases or profits, other than direct payments for
goods;
(l) the name and annual salary of each officer and board fees of
each director of First Kansas and each First Kansas Subsidiary, and the profit
sharing, bonus or other form of compensation (other than salary) paid or payable
by First Kansas, each First Kansas Subsidiary or a combination of any of them to
or for the benefit of each such person in question for the years ended December
31, 2002 and 2001, and for the current fiscal year of First Kansas, and any
employment agreement, consulting agreement, non-competition, severance or change
in control agreement or other similar arrangement or plan with respect to each
such person, and the amount of the benefits payable under any supplemental
executive retirement plan and the funding status thereof;
(m) each profit sharing, group insurance, hospitalization, stock
option, pension, retirement, bonus, employment, severance, change in control,
deferred compensation, stock bonus, stock purchase or other employee welfare or
benefit agreements, plans or arrangements established, maintained, sponsored or
undertaken by First Kansas or any First Kansas Subsidiary for the benefit of the
officers, directors or employees of First Kansas or any First Kansas Subsidiary,
including each trust or other agreement with any custodian or any trustee for
funds held under any such agreement, plan or arrangement, and all other
Contracts or
28
arrangements under which pensions, deferred compensation or other retirement
benefits are being paid or may become payable by First Kansas or any First
Kansas Subsidiary for the benefit of the employees or directors of First Kansas
or any First Kansas Subsidiary (collectively, the "First Kansas Employee Benefit
Plans"), and, in respect to any of them, the latest three (3) reports or forms,
if any, filed with the Department of Labor and Pension Benefit Guaranty
Corporation under the ERISA, the latest three (3) financial or actuarial reports
and any currently effective Internal Revenue Service private rulings or
determination letters obtained by or for the benefit of First Kansas or any
First Kansas Subsidiary;
(n) each Applicable Contract entered into other than in the
Ordinary Course of Business that contains or provides for an express undertaking
by First Kansas or any First Kansas Subsidiary to be responsible for
consequential damages;
(o) each Applicable Contract for capital expenditures in excess
of $30,000 or all Applicable Contracts for all capital expenditures which in the
aggregate require payments in excess of $60,000; and
(p) the name of each Person who is or would be entitled pursuant
to any Contract or First Kansas Employee Benefit Plan to receive any payment
from First Kansas or any First Kansas Subsidiary as a result of the consummation
of the Contemplated Transactions (including any payment that is or would be due
as a result of any actual or constructive termination of a Person's employment
or position following such consummation) and the maximum amount of such payment;
(q) each amendment, supplement and modification (whether oral or
written) in respect of any of the foregoing.
Copies of each document, plan or Contract listed and described in
Schedule 4.18 of the First Kansas Book of Schedules are appended to such
Schedule.
Section 4.19 No Defaults. Except as set forth in Schedule 4.19 of the
-----------
First Kansas Book of Schedules, each Contract identified or required to be
identified in Schedule 4.18 of the First Kansas Book of Schedules is in full
force and effect in all material respects and is valid and enforceable in
accordance with its terms, except as may be limited by any bankruptcy,
insolvency, moratorium or by the exercise of judicial discretion. First Kansas
and each First Kansas Subsidiary is, and at all times since January 1, 2000, has
been, in full compliance with all applicable terms and requirements of each
Contract under which First Kansas or any First Kansas Subsidiary has or had any
obligation or liability or by which First Kansas or any First Kansas Subsidiary
or any of their respective assets owned or used by them is or was bound, except
where any such failure to be in full compliance did not have or would reasonably
be expected not to have a Material Adverse Effect on First Kansas on a
consolidated basis. Each other Person that has or had any obligation or
liability under any such Contract under which First Kansas or any First Kansas
Subsidiary has or had any rights is, and at all times since January 1, 2000, has
been, to the Knowledge of First Kansas, in compliance with applicable terms and
requirements of such Contract in all material respects. No event has occurred or
circumstance exists that (with or without notice or lapse of time) may
contravene, conflict with or result in a violation or breach of,
29
or give First Kansas, any First Kansas Subsidiary or other Person the right to
declare a default or exercise any remedy under, or to accelerate the maturity or
performance of, or to cancel, terminate or modify, any material Applicable
Contract. Except in the Ordinary Course of Business with respect to loans made
by Bank, neither First Kansas nor any First Kansas Subsidiary has given to or
received from any other Person, at any time since January 1, 2000, any notice or
other communication (whether oral or written) regarding any actual, alleged,
possible or potential material violation or breach of, or default under, any
Contract. Other than in the Ordinary Course of Business in connection with
workouts and restructured loans, there are no renegotiations of, attempts to
renegotiate or outstanding rights to renegotiate any material amounts paid or
payable to First Kansas or any First Kansas Subsidiary under current or
completed Contracts with any Person, and no such Person has made written demand
for such renegotiation.
Section 4.20 Insurance. Schedule 4.20 of the First Kansas Book of
---------
Schedules lists the policies of insurance (including bankers blanket bond and
insurance providing benefits for employees) owned or held by First Kansas or any
First Kansas Subsidiary on the date hereof. Each policy is in full force and
effect (except for any expiring policy that is replaced by coverage at least as
extensive) until the Closing. All premiums due on such policies have been paid
in full.
Section 4.21 Compliance with Environmental Laws. Except as set forth in
----------------------------------
Schedule 4.21 of the First Kansas Book of Schedules and except for any of the
following that did not have or would not reasonably be expected to have a
Material Adverse Effect on First Kansas and the First Kansas Subsidiaries on a
consolidated basis, there are no actions, suits, investigations, liabilities,
inquiries, Proceedings or Orders involving First Kansas or any First Kansas
Subsidiary or any of their respective assets that are pending or, to the
Knowledge of First Kansas, Threatened, nor to the Knowledge of First Kansas is
there any factual basis for any of the foregoing, as a result of any asserted
failure of First Kansas or any First Kansas Subsidiary, or any predecessor
thereof, to comply with any federal, state, county and municipal law, including
any statute, regulation, rule, ordinance, Order, restriction and requirement,
relating to underground storage tanks, petroleum products, air pollutants, water
pollutants or process waste water or otherwise relating to the environment or
toxic or hazardous substances or to the manufacture, processing, distribution,
use, recycling, generation, treatment, handling, storage, disposal or transport
of any hazardous or toxic substances or petroleum products (including
polychlorinated biphenyls, whether contained or uncontained, and
asbestos-containing materials, whether friable or not), including, the Federal
Solid Waste Disposal Act, the Hazardous and Solid Waste Amendments, the Federal
Clean Air Act, the Federal Clean Water Act, the Occupational Health and Safety
Act, the Federal Resource Conservation and Recovery Act, the Toxic Substances
Control Act, the Federal Comprehensive Environmental Response, Compensation and
Liability Act of 1980 and the Superfund Amendments and Reauthorization Act of
1986, all as amended, and regulations of the Environmental Protection Agency,
the Nuclear Regulatory Agency and any state department of natural resources or
state environmental protection agency now or at any time hereafter in effect
(collectively, the "Environmental Laws"). No environmental clearances or other
governmental approvals are required for the conduct of the business of First
Kansas or any First Kansas Subsidiary or the consummation of the Contemplated
Transactions. To the Knowledge of First Kansas, neither First Kansas nor any
First Kansas Subsidiary is the owner of any interest in real estate on which any
substances have
30
been used, stored, deposited, treated, recycled or disposed of, which substances
if known to be present on, at or under such property, would require clean-up,
removal or some other remedial action under any Environmental Law.
Section 4.22 Regulatory Filings. First Kansas and each First Kansas
-------------------
Subsidiary has filed in a timely manner all required filings with all proper
Regulatory Authorities, including: (a) the SEC; and (b) the OTS. To the
Knowledge of First Kansas, all filings with such federal and state regulatory
agencies were accurate and complete in all material respects as of the dates of
the filings, and no such filing has made any untrue statement of a material fact
or omitted to state a material fact necessary in order to make the statements
made, in the light of the circumstances under which they were made, not
misleading.
Section 4.23 Agency and Custodial Accounts. Each First Kansas
---------------------------------
Subsidiary has properly administered all accounts for which it acts as
fiduciary, agent, custodian or investment advisor, in accordance with the terms
of the governing documents and applicable Legal Requirements and common law. No
First Kansas Subsidiary or any of its respective directors, officers or
employees has committed any breach of trust with respect to any such account,
and the accountings for each such account are true and correct in all material
respects and accurately reflect the assets of such account.
Section 4.24 Disclosure. No representation or warranty made in this
----------
Agreement by First Kansas contains any untrue statement of a material fact, or
omits to state a material fact necessary to make the statements contained herein
under the circumstances under which they were made not misleading. Except as and
to the extent reflected or reserved against in First Kansas's audited financial
statements for the year ended December 31, 2002, or the Subsequent First Kansas
Financial Statements, neither First Kansas nor any First Kansas Subsidiary has,
and with respect to the Subsequent First Kansas Financial Statements will not
have, any liabilities or obligations, of any nature, secured or unsecured,
(whether accrued, absolute, contingent or otherwise) including, any Tax
liabilities due or to become due, which would reasonably be expected to have a
Material Adverse Effect on First Kansas.
Section 4.25 Brokerage Commissions. Except as set forth in Schedule
----------------------
4.25 of the First Kansas Book of Schedules, none of First Kansas or any First
Kansas Subsidiary or any of their respective Representatives has incurred any
obligation or liability, contingent or otherwise, for brokerage or finders' fees
or agents' commissions or other similar payment in connection with this
Agreement.
Section 4.26 Delays. To the Knowledge of First Kansas, there is no
------
reason why the granting of any of the regulatory approvals referred to in
Section 8.1 would be denied, unduly delayed or otherwise unavailable. The most
recent regulatory rating given to Bank as to compliance with the Community
Reinvestment Act ("CRA") is satisfactory or better.
31
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF ACQUIROR AND ACQUISITION CORP
Acquiror and Acquisition Corp hereby represent and warrant to First
Kansas that the following are true and correct as of the date hereof, and will
be true and correct as of the Effective Date:
Section 5.1 Organization. Each of Acquiror, Acquisition Corp and
------------
Landmark Bank: (a) is an entity duly organized, validly existing and in good
standing under the laws of the State of Delaware, the State of Kansas or the
United States of America, respectively, and is also in good standing in each
other jurisdiction in which the nature of the business conducted or the
properties or assets owned or leased by it makes such qualification necessary;
and (b) has full power and authority, corporate and otherwise, to own, operate
and lease its properties as presently owned, operated and leased, and to carry
on its business as it is now being conducted, except where the failure to be so
qualified or to have such power and authority would not have a Material Adverse
Effect on Acquiror on a consolidated basis.
Section 5.2 Authorization. Acquiror and Acquisition Corp each has the
-------------
requisite corporate power and authority to enter into and perform its respective
obligations under this Agreement and the execution, delivery and performance of
this Agreement by each of Acquiror and Acquisition Corp and the consummation by
each of them of the transactions contemplated thereby, have been duly authorized
by all necessary corporate action. This Agreement constitutes a legal, valid and
binding obligation of each of Acquiror and Acquisition Corp enforceable in
accordance with its terms except as such enforcement may be limited by
bankruptcy, insolvency, reorganization or other similar laws and subject to
general principles of equity.
Section 5.3 No Conflict. Neither the execution nor delivery of this
------------
Agreement nor the consummation or performance of any of the Contemplated
Transactions will, directly or indirectly (with or without notice or lapse of
time): (a) contravene, conflict with or result in a violation of any provision
of the certificate or articles of incorporation, charter, bylaws or any
resolution adopted by the board of directors or stockholders of, Acquiror or any
Acquiror Subsidiary; (b) contravene, conflict with or result in a violation of
any Legal Requirement or any Order to which Acquiror or any Acquiror Subsidiary,
or any of the assets that are owned or used by them, may be subject, other than
any of the foregoing that would be satisfied by compliance with the provisions
of the Bank Holding Company Act of 1956, as amended (the "BHCA"), the Securities
Act, the Exchange Act, the National Bank Act and the DGCL; and (c) contravene,
conflict with or result in a violation or breach of any provision of, or give
any Person the right to declare a default or exercise any remedy under, or to
accelerate the maturity or performance of, or to cancel, terminate or modify any
material Applicable Contract to which Acquiror or any Acquiror Subsidiary is a
party or by which any of their respective assets is bound; or (d) result in the
creation of any lien, charge or encumbrance upon, or with respect to, any of the
assets owned or used by Acquiror or any Acquiror Subsidiary. Except as otherwise
provided in this Agreement, neither Acquiror nor any Acquiror Subsidiary is or
will be required to give any notice to, or obtain any consent from, any Person
in connection with the execution and delivery of this Agreement or the
consummation or performance of any of the Contemplated Transactions.
32
Section 5.4 Acquiror SEC Documents. Since January 1, 2002, Acquiror has
----------------------
timely filed all Acquiror SEC Documents and all such Acquiror SEC Documents have
complied in all material respects, as of their respective filing dates and
effective dates, as the case may be, with all applicable requirements of the
Exchange Act. As of their respective filing dates, none of the Acquiror SEC
Documents contained an untrue statement of a material fact or omitted 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.
Section 5.5 Undisclosed Liabilities; Adverse Changes. Neither Acquiror
-----------------------------------------
nor any Acquiror Subsidiary has any material liabilities or obligations of any
nature (whether known or unknown and whether absolute, accrued, contingent or
otherwise), except for liabilities or obligations reflected or reserved against
in the Acquiror SEC Documents, current liabilities incurred in the Ordinary
Course of Business since the respective dates thereof and other liabilities or
obligations that in the aggregate would not reasonably be expected to have a
Material Adverse Effect on Acquiror on a consolidated basis.
Section 5.6 Legal Proceedings; Orders. Except as disclosed in the
---------------------------
Acquiror SEC Documents, there have been no Proceedings or Orders pending,
entered into or, to the Knowledge of Acquiror, Threatened against, affecting or
involving Acquiror or any Acquiror Subsidiary or any of their respective assets
or businesses, or the Contemplated Transactions, since January 1, 2002, that
had, or would reasonably be expected to have, a Material Adverse Effect on
Acquiror on a consolidated basis or that would impair Acquiror's ability to
consummate any of the Contemplated Transactions, and there is no fact to
Acquiror's Knowledge that would provide a basis for any other Proceeding or
Order involving Acquiror or any Acquiror Subsidiary, or any of its respective
officers or directors in their capacities as such, or its assets, business or
goodwill that would reasonably be expected to have a Material Adverse Effect on
Acquiror or that would impair Acquiror's ability to consummate any of the
Contemplated Transactions.
Section 5.7 Disclosure. No representation or warranty made in this
----------
Agreement by Acquiror contains any untrue statement of a material fact, or omits
to state a material fact necessary to make the statements contained herein under
the circumstances under which they were made not misleading. Except as and to
the extent reflected or reserved against in Acquiror's audited financial
statements for the year ended December 31, 2002, or the Acquiror's subsequent
financial statements, as filed with the SEC, neither Acquiror nor any Acquiror
Subsidiary has, and with respect to the Acquiror's subsequent financial
statements , as filed with the SEC, will not have, any liabilities or
obligations, of any nature, secured or unsecured, (whether accrued, absolute,
contingent or otherwise) including, any Tax liabilities due or to become due,
which would reasonably be expected to have a Material Adverse Effect on
Acquiror.
Section 5.8 Delays. To the Knowledge of Acquiror, there is no reason
------
why the granting of any of the regulatory approvals referred to in Section 8.1
would be denied, unduly delayed or otherwise unavailable. The most recent
regulatory rating given to Landmark Bank as to compliance with the CRA is
satisfactory or better.
33
Section 5.9 Financial Resources. Acquiror has, or will have prior to
--------------------
the Effective Time, sufficient funds and capital to perform its obligations
under this Agreement. Acquiror and each Acquiror Subsidiary are, and will be
immediately following the Merger, in material compliance with all applicable
capital, debt and financial regulations of state and federal banking agencies
having jurisdiction over them. Each Acquiror Subsidiary is, and will be
immediately following the Merger, at least "adequately capitalized" as such term
is defined in the rules and regulations promulgated by the FDIC, as applicable.
ARTICLE 6
COVENANTS OF FIRST KANSAS
From and after the date hereof and until the Effective Time, First
Kansas hereby covenants and agrees with Acquiror as follows:
Section 6.1 Information, Access and Confidentiality.
---------------------------------------
(a) Upon providing reasonable notice, Acquiror and its
Representatives shall, at all times during normal business hours prior to the
Closing Date, have full and continuing access to the facilities, operations,
records and properties of First Kansas and each First Kansas Subsidiary.
Acquiror and its Representatives may, prior to the Closing Date, make or cause
to be made such reasonable investigation of the operations, records and
properties of First Kansas and each First Kansas Subsidiary, including
observation of any audit of, and examination of any audit work papers with
respect to, First Kansas or any First Kansas Subsidiary, and of its and their
financial and legal condition as Acquiror shall deem necessary or advisable to
familiarize itself with such records, properties and other matters; provided,
that such access or investigation shall not interfere unnecessarily with the
normal operations of First Kansas or any of the First Kansas Subsidiary. Upon
request, First Kansas and each First Kansas Subsidiary will furnish Acquiror or
its Representatives its attorneys' responses to auditors' requests for
information and such financial and operating data and other information
reasonably requested by Acquiror developed by First Kansas or any First Kansas
Subsidiary, its auditors, accountants or attorneys (provided with respect to
attorneys, such disclosure shall be limited to information that would not result
in the waiver by First Kansas or any First Kansas Subsidiary of any claim of
attorney-client privilege), and will permit Acquiror or its Representatives to
discuss such information directly with any individual or firm performing
auditing or accounting functions for First Kansas or any First Kansas
Subsidiary, and such auditors and accountants shall be directed to furnish
copies of any reports or financial information as developed to Acquiror or its
Representatives. No investigation by Acquiror shall affect the representations
and warranties made by First Kansas. This Section shall not require the
disclosure of any information the disclosure of which to Acquiror would be
prohibited by law.
(b) First Kansas shall allow a representative of Acquiror to
attend as an observer all meetings of the board of directors and committees of
the board of directors of First Kansas and any First Kansas Subsidiary and any
meeting of the loan committee and asset liability management committee of First
Kansas or any First Kansas Subsidiary. First Kansas shall give reasonable notice
to Acquiror of any such meeting and, if known, the agenda for or business to
34
be discussed at such meeting. First Kansas shall provide to Acquiror all
information provided to the directors on all such boards in connection with all
such meetings or otherwise provided to the directors, and shall provide any
other financial reports or other analysis prepared for senior management of
First Kansas or any First Kansas Subsidiary, in each case excluding information
which is privileged or is subject to any restriction on disclosure. It is
understood by the parties that Acquiror's representative will not have any
voting rights with respect to matters discussed at these meetings and that
Acquiror is not managing the business or affairs of First Kansas or any First
Kansas Subsidiary. All information obtained by Acquiror at these meetings shall
be treated in confidence as provided in Section 6.1(c) hereof. Notwithstanding
the foregoing, Acquiror shall not be permitted to attend any portion of a
meeting and First Kansas shall not be required to provide Acquiror with any
materials, in violation of applicable law or that relates to a Competing First
Kansas Proposal (except for information to be provided as required by Section
6.13 hereof), or that involve matters protected by the attorney-client
privilege.
(c) Any confidential information or trade secrets received by
First Kansas, its employees or agents in the course of the consummation of the
Contemplated Transactions shall be treated confidentially, and any
correspondence, memoranda, records, copies, documents and electronic or other
media of any kind containing either such confidential information, or trade
secrets or both shall be destroyed by First Kansas or, at Acquiror's request,
returned to Acquiror in the event this Agreement is terminated as provided in
Article 11. Such information shall not be used by First Kansas or its agents to
the detriment of Acquiror or any Acquiror Subsidiary.
(d) Any confidential information or trade secrets received by
Acquiror, its employees or agents in the course of the consummation of the
Contemplated Transactions shall be treated confidentially, and any
correspondence, memoranda, records, copies, documents and electronic or other
media of any kind containing either such confidential information, or trade
secrets or both shall be destroyed by Acquiror or, at First Kansas' request,
returned to First Kansas in the event this Agreement is terminated as provided
in Article 11. Such information shall not be used by Acquiror or its agents to
the detriment of First Kansas or any First Kansas Subsidiary.
Section 6.2 Carry on in Regular Course. First Kansas and each First
---------------------------
Kansas Subsidiary shall carry on its business diligently and substantially in
the same manner as is presently being conducted and shall not make or institute
any unusual or material change in its methods of doing business without the
prior written consent of Acquiror. First Kansas shall, and shall also cause each
First Kansas Subsidiary to, unless otherwise consented to in writing in advance
by Acquiror:
(a) conduct its business only in the Ordinary Course of
Business;
(b) use its Best Efforts to preserve intact its current business
organization, keep available the services of its current officers, employees and
agents, and maintain the relations and goodwill with its suppliers, customers,
landlords, creditors, employees, agents and others having business relationships
with it;
35
(c) confer and consult with Acquiror concerning operational
matters of a material nature, any sales of investment securities or loans that
were not originated with the intent to sell, and any changes or revisions to the
asset-liability management of Bank;
(d) enter into loan transactions only in accordance with sound
credit practices and only on terms and conditions which are not materially more
favorable than those available to the borrower from competitive sources in
transactions in the ordinary course of business and consistent with prudent
banking practices and policies and regulations of applicable regulatory
authorities, and in that connection, First Kansas will consult and discuss with
Acquiror all new credits or new lending relationships, or extensions or renewals
of any existing credit relationships, approved in excess of $500,000 to any
Person or Persons and his, her or their Affiliates from the date hereof to the
Effective Time;
(e) consistent with past practice, maintain a reserve for
probable loan and lease losses that is adequate in all material respects to
provide for probable losses, net of recoveries relating to loans previously
charged off, on loans outstanding (including accrued interest receivable);
(f) maintain all of its assets necessary for the conduct of its
business in good operating condition and repair, reasonable wear and tear and
damage by fire or unavoidable casualty excepted, and maintain policies of
insurance upon its assets and with respect to the conduct of its business in
amounts and kinds comparable to that in effect on the date hereof and pay all
premiums on such policies when due;
(g) file in a timely manner all required filings with all
Regulatory Authorities and cause such filings to be true and correct in all
material respects;
(h) maintain its books, accounts and records in the usual,
regular and ordinary manner, on a basis consistent with prior years and comply
with all Legal Requirements; and
(i) pay employees and directors salaries, bonuses, fees or any
other compensation in amounts no greater than that which was payable in the
ordinary course prior to the Effective Time and provided that any bonus payable
shall be in an amount no greater than that which was paid to the employee in
2002 and if the employee was not employed in 2002, an amount no greater than the
amount received by a similarly situated comparable employee, provided, however,
that no employee shall receive a bonus prior to the Effective Time if the
employee is covered by a written employment or severance agreement set forth in
Schedule 4.18 of the First Kansas Book of Schedules.
With respect to any written request by First Kansas for Acquiror's
consent to any non-permitted action of First Kansas or any First Kansas
Subsidiary described in this Section, First Kansas shall be entitled to
conclusively presume Acquiror has consented to any such action unless First
Kansas shall have received Acquiror's written objection to such action within
three (3) Business Days of the date of Acquiror's receipt of such written
request.
36
Section 6.3 Negative Covenants. Except as otherwise provided by this
-------------------
Agreement, between the date of this Agreement and the Closing Date, First Kansas
will not, and will cause each First Kansas Subsidiary not to, without the prior
written consent of Acquiror, take any affirmative action, or fail to take any
reasonable action within its control, as a result of which any of the changes or
events listed in Section 4.17 is likely to occur. With respect to any written
request by First Kansas for Acquiror's consent to any non-permitted action of
First Kansas or any First Kansas Subsidiary described in this Section, First
Kansas shall be entitled to conclusively presume Acquiror has consented to any
such action unless First Kansas shall have received Acquiror's written objection
to such action within three (3) Business Days of the date of Acquiror's receipt
of such written request.
Section 6.4 Dividends. Notwithstanding anything contained herein to the
---------
contrary, First Kansas may declare and pay to its stockholders one cash dividend
not to exceed five cents ($0.05) per share of First Kansas Common Stock, in the
fourth quarter of 2003. First Kansas shall not declare, pay or make any other
dividend or other distribution or payment in respect of, or redemption of,
shares of First Kansas Common Stock.
Section 6.5 Subsequent First Kansas Financial Statements. As soon as
----------------------------------------------
available after the date hereof, First Kansas will furnish Acquiror copies of:
(a) each filing made by First Kansas with the SEC; (b) the monthly unaudited
balance sheets and profit and loss statements of First Kansas on a consolidated
basis, and Bank on a stand-alone basis, prepared in each case for First Kansas's
internal use, (c) the TFRs of Bank for each quarterly period completed after the
date of this Agreement and prior to the Effective Time; and (d) all other
financial reports or statements submitted by First Kansas or any First Kansas
Subsidiary to Regulatory Authorities after the date hereof, to the extent
permitted by law (collectively, the "Subsequent First Kansas Financial
Statements"). The Subsequent First Kansas Financial Statements shall be prepared
on a basis consistent with past accounting practices and shall fairly present in
all material respects the financial condition and results of operations for the
dates and periods presented, subject in the case of unaudited financial
statements to year-end audit adjustments (which changes in the aggregate would
not reasonably be expected to be materially adverse). The Subsequent First
Kansas Financial Statements will not include any material assets or omit to
state any material liabilities, absolute or contingent, or other facts, which
inclusion or omission would render such financial statements misleading in any
material respect.
Section 6.6 Advice of Changes. Between the date of this Agreement and
-----------------
the Closing Date, First Kansas will promptly notify Acquiror in writing if First
Kansas or any First Kansas Subsidiary becomes aware of any fact or condition
that causes or constitutes a Breach of any of First Kansas's representations and
warranties as of the date of this Agreement, or if First Kansas or any First
Kansas Subsidiary becomes aware of the occurrence after the date of this
Agreement of any fact or condition that would (except as expressly contemplated
by this Agreement) cause or constitute a Breach of any such representation or
warranty had such representation or warranty been made as of the time of
occurrence or discovery of such fact or condition. If any such fact or condition
would require any change in the Schedules if such Schedules were dated the date
of the occurrence or discovery of any such fact or condition, First Kansas will
promptly deliver to Acquiror a supplement to the Schedules specifying such
change, provided, however, that receipt of notice of such facts after the date
of this Agreement shall have no effect on the truth and
37
accuracy of the representations and warranties made in this Agreement and the
delivery of any such updated Schedule shall not in itself be sufficient to cure
any prior Breach. During the same period, First Kansas will promptly notify
Acquiror of the occurrence of any Breach of any covenant of First Kansas in this
Article or of the occurrence of any event that might reasonably be expected to
make the satisfaction of the conditions in Article 8 impossible or unlikely.
First Kansas shall also provide to Acquiror copies of each written communication
sent to its stockholders between the date of this Agreement and the Closing
Date.
Section 6.7 Stockholders' Meeting. First Kansas will take all steps
----------------------
necessary to duly call, give notice of, convene and hold a meeting of its
stockholders, as soon as practicable, but in no event later than sixty (60) days
following the SEC's clearance of First Kansas's Proxy Statement, for the purpose
of obtaining stockholder approval of this Agreement and the Merger (the "Special
Meeting"). Notwithstanding anything to the contrary herein, First Kansas shall
be under no obligation to call its Special Meeting and mail the Proxy Statement
until such time that the parties have agreed, in writing, upon a course of
action for the remediation of any environmental condition pursuant to Section
6.10(b) or have agreed, in writing, that no such remediation is necessary.
Section 6.8 Proxy Statement. First Kansas will take all reasonable
----------------
steps necessary to submit the Proxy Statement to the SEC within forty (40) days
after the date of this Agreement. The Proxy Statement will satisfy all
requirements of the Exchange Act and the rules and regulations promulgated
thereunder and will include a recommendation, subject to its fiduciary duties,
by the board of directors of First Kansas that the stockholders of First Kansas
approve this Agreement and the Merger. First Kansas and its Representatives
shall solicit proxies from the stockholders of First Kansas. First Kansas shall
deliver a draft of the Proxy Statement to Acquiror and its counsel at least five
(5) Business Days prior to the filing of such draft with the SEC, and shall
provide Acquiror with summaries of any material oral communications with the
SEC, and copies of all responses or other written communications from the SEC,
relating to the Proxy Statement. First Kansas shall further deliver a draft of
the Proxy Statement to Acquiror and its counsel at least five (5) Business Days
prior to its mailing by First Kansas to its stockholders. The Proxy Statement
shall not be mailed to the holders of First Kansas Common Stock until Trident
Securities, Inc. has delivered to the board of directors of First Kansas for
inclusion in the Proxy Statement a fairness opinion (the "Fairness Opinion"),
dated within five (5) Business Days of the date of mailing, to the effect that
the Total Purchase Price is fair to the stockholders of First Kansas from a
financial point of view, which opinion shall be in standard industry form with
respect to transactions of this nature. First Kansas shall send the Proxy
Statement to its stockholders at least thirty (30) days prior to the Special
Meeting. Along with such notice, First Kansas shall include a copy of this
Agreement and a copy of Section 17-6712 of the Kansas Code governing the
procedures required to be met by dissenting stockholders.
Section 6.9 Information Provided to Acquiror. First Kansas agrees that
--------------------------------
none of the information concerning First Kansas or any First Kansas Subsidiary
that is provided or to be provided by First Kansas to Acquiror for inclusion or
that is included in the Proxy Statement and any other documents to be filed with
any Regulatory Authority in connection with the Contemplated Transactions will,
at the respective times such documents are filed and, with respect to the Proxy
Statement, when mailed, be false or misleading with respect to any material
fact, or
38
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 First Kansas's
stockholders referred to above, 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 the meeting in connection with which the Proxy Statement shall be
mailed. Notwithstanding the foregoing, First Kansas shall have no responsibility
for the truth or accuracy of any information with respect to Acquiror or any
Acquiror Subsidiary or any of their Affiliates contained in the Proxy Statement
or in any document submitted to, or other communication with, any Regulatory
Authority.
Section 6.10 Environmental Investigation.
---------------------------
(a) Acquiror may in its discretion, within thirty (30) Business
Days of the date of this Agreement, retain at its own expense an independent
professional consultant to perform an environmental site assessment and render
to Acquiror a report (an "Environmental Report") to determine if any real
property in which First Kansas holds any interest contains or gives evidence
that any violations of Environmental Laws have occurred on any such property.
Neither Acquiror nor its independent professional consultant shall enter upon
any such real property in which First Kansas or any First Kansas Subsidiary
holds only a mortgagee's interest without the prior permission of First Kansas
and the Person in possession thereof. First Kansas shall not withhold such
permission unreasonably, and shall use all reasonable efforts to obtain such
permission for Acquiror from the Person in possession of any such mortgaged real
property for which Acquiror desires its independent professional consultant to
conduct a site assessment. Acquiror shall have no duty to act upon any
information produced by such reviews or investigations with or for the benefit
of First Kansas, any First Kansas Subsidiary or any other Person, but shall
provide such information to First Kansas as soon as practicable after such
information becomes available to Acquiror. If the Environmental Report discloses
any adverse environmental conditions, or reports a reasonable suspicion thereof,
Acquiror and First Kansas shall, within fifteen (15) Business Days of such
determination, obtain from one or more mutually acceptable consultants or
contractors, as appropriate (the "Remediation Expert"), an estimate of the cost
of any remediation or other follow-up work that may be necessary to address
those conditions in accordance with applicable laws and regulations.
(b) Upon receipt of the estimate of the costs of all follow-up
work to the Environmental Report or any subsequent investigation phases that may
be conducted, Acquiror and First Kansas shall attempt to agree upon a course of
action for further investigation and remediation of any environmental condition
suspected, found to exist, or that would tend to be indicated by the
Environmental Report. The estimated total cost for completing all necessary work
plans or removal or remediation actions is referred to collectively as the
"Remediation Cost." If the Remediation Cost exceeds One Hundred Thousand Dollars
($100,000) then the parties shall adjust the Purchase Price Per Share as
provided in Article 3. If the Remediation Cost exceeds Five Hundred Thousand
Dollars ($500,000), Acquiror or First Kansas may, at its sole option, terminate
this Agreement.
Section 6.11 Title Reports. By no later than forty-five (45) days after
-------------
the date of this Agreement, First Kansas shall obtain at its own expense and
deliver to Acquiror an owner's
39
preliminary report of title covering a date subsequent to the date hereof,
issued by Chicago Title Insurance Company or such other title insurance company
as is reasonably acceptable to Acquiror with respect to all real property owned
by First Kansas or any First Kansas Subsidiary (the "First Kansas Real
Property"), showing fee simple title in First Kansas or a First Kansas
Subsidiary, and in each case, subject only to: (a) minor defects and
irregularities in title and encumbrances which would not materially impair the
use thereof for the purposes for which they are held; and (b) those exceptions
set forth in Schedule 6.10 of the Acquiror Book of Schedules, except that the
following exceptions shall be removed at or before Closing: (i) standard
exceptions that would be removed upon the delivery of a satisfactory survey;
(ii) taxes and special assessments due and payable prior to or as of the
Closing; (iii) all mortgages and financing statements; and (iv) rights of
tenants under unrecorded leases. On or before the Closing Date, Acquiror shall
deliver updated title commitments with respect to the First Kansas Real Property
and a receipt evidencing full payment for title insurance policies to be issued
as soon as practicable after the Closing in accordance with such updated title
commitments and in amounts of no less than the book value of the First Kansas
Real Property as shown on the First Kansas Financial Statements.
Section 6.12 Surveys. By no later than forty-five (45) days after the
-------
date of this Agreement, First Kansas shall obtain at its own expense and deliver
to Acquiror a current ALTA survey of each parcel of First Kansas Real Property
disclosing no survey defects that would materially impair the use thereof for
the purposes for which it is held or materially impair the value of such
property.
Section 6.13 Exclusivity. Subject to its fiduciary duties and except as
-----------
otherwise set forth herein, none of First Kansas, any First Kansas Subsidiary or
any of their respective directors, officers, employees, professional and
financial advisors, representatives, agents and Affiliates shall, directly or
indirectly, make, encourage, facilitate, solicit, initiate or assist any
inquiries, proposals, offers or expressions of interest from, or provide any
nonpublic information or access to First Kansas's or any First Kansas
Subsidiary's premises to, or participate in any discussions or negotiations
with, any Person (other than Acquiror and its directors, officers, employees,
professional and financial advisors, representatives, agents and Affiliates)
concerning or relating to: (a) any merger, sale of assets not in the Ordinary
Course of Business, acquisition, business combination, change of control or
other similar transaction involving First Kansas or any First Kansas Subsidiary,
or (b) any purchase or other acquisition by any Person of five percent (5%) or
more of the capital stock of First Kansas or of any capital stock of any First
Kansas Subsidiary, or (c) any issuance by any First Kansas Subsidiary of any
shares of its capital stock (collectively, a "Competing First Kansas Proposal").
First Kansas will promptly advise Acquiror of, and communicate to Acquiror the
terms and conditions of, and the identity of the Person making, any Competing
First Kansas Proposal, and will provide summaries of any non-privileged
communications with respect to such Competing First Kansas Proposal. Upon the
date of this Agreement, First Kansas will terminate all discussions and
negotiations that it has heretofore engaged in or conducted with any other
Person with respect to any of the above, and will advise its directors,
officers, employees, professional and financial advisors, representatives,
agents and Affiliates to also terminate the same. Notwithstanding the foregoing,
First Kansas may engage in discussions or negotiations with, furnish nonpublic
information concerning First Kansas
40
and any First Kansas Subsidiary and their respective properties, assets and
business, and grant access to the facilities of First Kansas and any First
Kansas Subsidiary, to any Person that hereafter makes a Competing First Kansas
Proposal that was not directly or indirectly, after the date hereof, made,
encouraged, facilitated, solicited, initiated or assisted by First Kansas, any
First Kansas Subsidiary or any of their respective directors, officers,
employees, professional or financial advisors, representatives, agents or
Affiliates (an "Unsolicited First Kansas Proposal"), but only to the extent
that: (i) the board of directors of First Kansas receives a written opinion from
its independent financial advisor that such proposal may be superior to the
Contemplated Transactions from a financial point of view to First Kansas's
stockholders; (ii) First Kansas's outside legal counsel advises First Kansas
that the maker of the Unsolicited First Kansas Proposal may legally acquire
First Kansas and Bank; (iii) First Kansas's board of directors, after
consultation with its outside legal counsel, determines in good faith that such
action is necessary for First Kansas's board of directors to comply with its
fiduciary duties to its stockholders under all applicable Legal Requirements;
and (iv) prior to furnishing such information to, or entering into discussions
or negotiations with, such Person, First Kansas provides reasonable notice to
Acquiror to the effect that it is furnishing information to, or entering into
discussions or negotiations with, such Person.
Section 6.14 Best Efforts; Cooperation. Subject to the terms and
---------------------------
conditions of this Agreement, First Kansas agrees to exercise good faith and use
its Best Efforts to satisfy the various covenants and conditions to Closing in
Articles 8 and 9, respectively, and to consummate the Contemplated Transactions
as promptly as possible. First Kansas will not intentionally take or
intentionally permit to be taken any action that would be a Breach of the terms
or provisions of this Agreement. Between the date of this Agreement and the
Closing Date, First Kansas will, and will cause each First Kansas Subsidiary and
all of the Affiliates and Representatives of First Kansas and each First Kansas
Subsidiary to, cooperate with Acquiror with respect to all filings that Acquiror
is required by Legal Requirements to make in connection with the Contemplated
Transactions. In case at any time after the Effective Time any further action is
necessary or desirable to carry out the purposes of this Agreement or to vest
Acquiror or the Resulting Corporation with full title to all properties, assets,
rights, approvals, immunities and franchises of First Kansas, the proper
officers and directors of First Kansas shall take all such necessary action to
vest Acquiror or the Resulting Corporation with such rights.
Section 6.15 ESOP Loan. From and after the date of this Agreement
----------
through the Effective Time, First Kansas and/or the Bank shall make any further
contributions to the First Kansas ESOP only in accordance with First Kansas's
past practice. As of the Effective Time, the ESOP shall terminate in accordance
with its terms, as in effect on the date of this Agreement.
Section 6.16 Data and Item Processing Agreements. First Kansas agrees
------------------------------------
to consult with Acquiror prior to the entry by it or any First Kansas Subsidiary
by either action or inaction into any new, or any extension of any existing,
data or item processing agreements. First Kansas agrees to coordinate with
Acquiror the negotiation of any new or extension of any existing data or item
processing agreement with the purpose of achieving the best possible economic
and business result in light of the Bank Merger.
Section 6.17 Accrual of Costs. On or prior to the Closing Date, First
----------------
Kansas shall fully pay or accrue as may be required by GAAP: (a) the cost of any
benefits or contributions supplied
41
or made or to be supplied or made through the Effective Time under any of the
First Kansas Employee Benefit Plans; (b) the costs of any corrective action to
bring any such plans into compliance with applicable law; (c) the aggregate cost
of complying with any representation, warranty or covenant of First Kansas set
forth in this Agreement; and (d) all First Kansas Transactional Expenses. For
purposes of the accruals made pursuant to this section, First Kansas shall
assume a tax rate of 34%.
Section 6.18 Accounting and Other Adjustments. First Kansas agrees that
--------------------------------
it shall, and shall cause Bank, to: (a) make any accounting adjustments or
entries to its books of account and other financial records; (b) make additional
provisions to any allowance for loan and lease losses; (c) sell or transfer any
investment securities held by it; (d) charge-off any loan or lease; (e) create
any new reserve account or make additional provisions to any other existing
reserve account; (f) make changes in any accounting method; (g) accelerate,
defer or accrue any anticipated obligation, expense or income item; and (h) make
any other adjustments which would affect the financial reporting of Acquiror, on
a consolidated basis after the Effective Time, in any case as Acquiror shall
reasonably request, provided, however, that neither First Kansas nor Bank shall
be obligated to take any such requested action until immediately prior to the
Closing and at such time as First Kansas shall have received reasonable
assurances that all conditions precedent to First Kansas's obligations under
this Agreement (except for the completion of actions to be taken at the Closing)
have been satisfied and no such adjustment which First Kansas or Bank would not
have been required to make but for the provisions of this Section shall have any
effect on the satisfaction by First Kansas of the condition in Section 9.11.
Section 6.19 Officer Agreements. Concurrently with the execution and
-------------------
delivery of this Agreement, First Kansas shall cause to be delivered to
Acquiror:
(a) a consulting agreement providing for aggregate payments of
$160,000, all in the form of Exhibit B, signed by Larry V. Bailey, which such
agreement shall become effective at the Effective Time; and
(b) a stay bonus agreement providing for an aggregate payment of
$50,000 made in two installments, in the form of Exhibit C signed by James J.
Casaert, which such agreement shall become effective at the Effective Time.
Section 6.20 Voting Agreement. Concurrently with the execution and
-----------------
delivery of this Agreement, First Kansas shall deliver to Acquiror a voting
agreement in the form of Exhibit D signed by each of the directors and executive
officers of First Kansas who are holders of First Kansas Common Stock.
Section 6.21 Non-Competition Agreements. Concurrently with the
----------------------------
execution and delivery of this Agreement, First Kansas shall deliver to Acquiror
a non-competition agreement in the form of Exhibit E signed by each of the
directors of First Kansas, with the exception of Larry V. Bailey. As
consideration for entering into a non-competition agreement, First Kansas shall
pay at the Closing to each individual director other than Mr. Bailey, the sum of
$12,000.
42
Section 6.22 Tax Matters. Neither First Kansas nor any First Kansas
------------
Subsidiary shall make any election or settle or compromise any liability with
respect to Taxes without prior written notice to Acquiror. First Kansas and each
First Kansas Subsidiary shall timely file all Tax Returns required to be filed
prior to the Closing; provided, however, that each such Tax Return shall be
delivered to Acquiror at least five (5) business days prior to the anticipated
date of filing for Acquiror's review.
Section 6.23 Employee Severance. Any person who is currently serving as
------------------
an employee of either First Kansas or Bank and continues as such immediately
prior to the Effective Time (other than those employees covered by a written
employment or severance agreement set forth in Schedule 4.18 of the First Kansas
Book of Schedules) whose employment is discontinued by Landmark Bank or the Bank
within one year after the Effective Time shall be entitled to a severance
payment pursuant to a Transition Period Severance Plan to be adopted by Bank
prior to the Effective Time containing the terms outlined in Schedule 6.23 of
the First Kansas Book of Schedules.
Section 6.24 Retention Bonuses. In order to insure an orderly Closing
------------------
and transition period, the Bank shall pay each employee of the Bank (other than
those employees covered by a written employment or severance agreement set forth
in Schedule 4.18 of the First Kansas Book of Schedules) a "retention" bonus
equal to two weeks pay in the event that such employee remains an employee and
satisfactorily fulfills the duties and responsibilities of his or her position
through the Effective Time, to be paid by Bank immediately prior to the
Effective Time. Schedule 6.24 of the First Kansas Book of Schedules provides a
schedule of projected retention bonuses.
Section 6.25 Defined Benefit Plan. First Kansas will effect its
----------------------
withdrawal from the multiple employer plan as soon as practicable after the date
of this Agreement, but in no event later than December 31, 2003.
ARTICLE 7
ACQUIROR'S COVENANTS
From and after the date hereof and until the Effective Time, Acquiror
hereby covenants and agrees with First Kansas as follows:
Section 7.1 Advice of Changes. Between the date of this Agreement and
-----------------
the Closing Date, Acquiror will promptly notify First Kansas in writing if
Acquiror or any Acquiror Subsidiary becomes aware of any fact or condition that
causes or constitutes a Breach of any of Acquiror's representations and
warranties as of the date of this Agreement, or if Acquiror or any Acquiror
Subsidiary becomes aware of the occurrence after the date of this Agreement of
any fact or condition that would (except as expressly contemplated by this
Agreement) cause or constitute a Breach of any such representation or warranty
had such representation or warranty been made as of the time of occurrence or
discovery of such fact or condition. If any such fact or condition
43
would require any change in the Schedules if such Schedules were dated the date
of the occurrence or discovery of any such fact or condition, Acquiror will
promptly deliver to First Kansas a supplement to the Schedules specifying such
change, provided, however, that receipt of notice of such facts after the date
of this Agreement shall have no effect on the truth and accuracy of the
representations and warranties made in this Agreement and the delivery of any
such updated Schedule shall not in itself be sufficient to cure any prior
Breach. During the same period, Acquiror will promptly notify First Kansas of
the occurrence of any Breach of any covenant of Acquiror in this Article or of
the occurrence of any event that might reasonably be expected to make the
satisfaction of the conditions in Article 9 impossible or unlikely. Acquiror
shall also provide to First Kansas copies of each written communication sent to
its stockholders between the date of this Agreement and the Closing Date.
Section 7.2 Information Provided to First Kansas. Acquiror agrees that
------------------------------------
none of the information concerning Acquiror or any Acquiror Subsidiary that is
provided or to be provided by Acquiror to First Kansas for inclusion or that is
included in the Proxy Statement and any other documents to be filed with any
Regulatory Authority in connection with the Contemplated Transactions will, at
the respective times such documents are filed 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
Acquiror's stockholders referred to above, 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 the meeting in connection with which the Proxy Statement shall be
mailed. Notwithstanding the foregoing, Acquiror shall have no responsibility for
the truth or accuracy of any information with respect to First Kansas or any
First Kansas Subsidiary or any of their Affiliates contained in the Proxy
Statement or in any document submitted to, or other communication with, any
Regulatory Authority.
Section 7.3 Best Efforts; Cooperation. Subject to the terms and
---------------------------
conditions of this Agreement, Acquiror agrees to exercise good faith and use its
Best Efforts to satisfy the various covenants and conditions to Closing in
Articles 8 and 10, respectively, and to consummate the Contemplated Transactions
as promptly as possible. Acquiror will not intentionally take or intentionally
permit to be taken any action that would be a Breach of the terms or provisions
of this Agreement. Between the date of this Agreement and the Closing Date,
Acquiror will, and will cause each Acquiror Subsidiary and all of the Affiliates
and Representatives of Acquiror and each Acquiror Subsidiary to, cooperate with
First Kansas with respect to all filings that First Kansas is required by Legal
Requirements to make in connection with the Contemplated Transactions.
ARTICLE 8
COVENANTS OF ALL PARTIES
Section 8.1 Regulatory Approvals. Within forty (40) days after the date
--------------------
of this Agreement, Acquiror shall make all appropriate filings with Regulatory
Authorities for approval of the Contemplated Transactions, including the
preparation of an application or any amendment
44
thereto or any other required statements or documents filed or to be filed by
any party with: (a) the Federal Reserve pursuant to the BHCA; (b) the OTS
pursuant to the HOLA; (c) the OCC pursuant to the National Bank Act; and (d) any
other Person or Regulatory Authority pursuant to any applicable Legal
Requirement, for authority to consummate the Contemplated Transactions. First
Kansas and Acquiror shall pursue in good faith the regulatory approvals
necessary to consummate the Contemplated Transactions. In advance of any filing
made under this Section 8.1, First Kansas and Acquiror and their respective
counsel shall be provided with the opportunity to comment thereon, and First
Kansas and Acquiror each agree promptly to advise each other and each other's
counsel of any material communication received by it or its counsel from any
Regulatory Authorities with respect to such filings. Each of First Kansas and
Acquiror and their respective Subsidiaries agree to cooperate fully and promptly
with each other and their respective counsel and accountants in connection with
any steps to be taken as part of their obligations under this Agreement.
Section 8.2 Customer and Employee Relationships. Each of First Kansas
------------------------------------
and Acquiror agrees that its respective representatives may jointly:
(a) participate in meetings or discussions with officers and
employees of First Kansas and its Subsidiaries in connection with employment
opportunities with Acquiror after the Effective Time; and
(b) contact Persons having dealings with First Kansas or any of
its Subsidiaries for the purpose of informing such Persons of the services to be
offered by Acquiror after the Effective Time.
Section 8.3 Publicity. Prior to the Effective Time, the parties to this
---------
Agreement will consult with each other before issuing any press releases or
otherwise making any public statements with respect to this Agreement or the
Contemplated Transactions and shall not issue any such press release or make any
such public statement without the prior consent of the other parties, except as
may be required by law.
Section 8.4 Employee Benefit Plan Payments. First Kansas agrees to take
------------------------------
or cause to be taken the actions described in Schedule 8.4 of the First Kansas
Book of Schedules with respect to the payment of amounts due under the First
Kansas Employee Benefits Plans. Immediately prior to the Effective Time, First
Kansas, or the Bank, shall make the payments set forth in Schedule 8.4 to
terminate the employment or severance agreements set forth in Schedule 8.4 of
the First Kansas Book of Schedules. First Kansas and Acquiror further agree to
cooperate to determine prior to the Closing the types of benefits to be offered
after the Effective Time by Acquiror to former employees of First Kansas who
become employees of Acquiror.
Section 8.5 Director and Officer Liability Coverage. Prior to the
-------------------------------------------
Effective Time, Acquiror will provide and will maintain in effect for a period
of not less than three (3) years after the Effective Time directors' and
officers' liability insurance coverage for the officers and directors of First
Kansas with respect to actions taken by them prior to the Effective Time to the
extent that such coverage is available and mutually determined by the parties to
be economically practicable ("Tail Coverage"). Any such coverage shall be on
substantially the same terms and
45
conditions and provide the same coverage against personal liability as the most
protective coverage which is currently provided to officers and directors of
either Acquiror or First Kansas. The directors and officers of First Kansas
shall be third party beneficiaries to this Section and this Section shall
survive the Effective Time. Notwithstanding the provision of such Tail Coverage,
the parties further agree that after the Effective Time, Acquiror shall
indemnify for a period of six (6) years the officers and directors of First
Kansas for all actions taken by them prior to the Effective Time in their
capacities as officers and directors of First Kansas to the same extent as the
greatest indemnification which is currently provided by First Kansas.
Section 8.6 Trademarks. Acquiror will acquire any Intellectual Property
----------
Assets (including logos) and associated goodwill owned by First Kansas or any
First Kansas Subsidiary.
Section 8.7 Advisory Board. Acquiror shall create an advisory board
---------------
(the "Advisory Board") to assist in and advise with respect to integration of
the operations of First Kansas and Bank with and into those of Acquiror and
Landmark Bank. The Advisory Board shall consist of all of those individuals who
are serving as of the Effective Time as members of the board of directors of
First Kansas, but not including Larry V. Bailey. Members of the Advisory Board
shall serve with no compensation. Acquiror's board of directors shall review the
Advisory Board function annually to consider its continuation and may terminate
the Advisory Board at any time after the first anniversary of the Effective
Time.
Section 8.8 Employees
---------
(a) As of or after the Effective Date, and at Acquiror's
election and subject to the requirements of the Code and ERISA, the First Kansas
Employee Benefit Plans, other than ESOP, which will be terminated, may be
continued and maintained separately, consolidated with Acquiror's existing
plans, or terminated. Bank employees who continue employment with Landmark Bank
following the Merger Effective Date ("Continuing Employees") shall participate
in all Landmark Bank Employee Plans (including, without limitation, Landmark
Bank's ESOP, and its 401(k) plan) as of the first entry date coincident with or
following the Merger Effective Date, with recognition of prior service with Bank
for purposes of eligibility to participate and vesting, but not benefits
accrual.
(b) Continuing Employees shall be enrolled in the Bank medical,
dental, life insurance and disability insurance programs available to other
Landmark Bank employees immediately upon the termination of the Bank plans
without such Continuing Employees incurring any uninsured waiting periods or
pre-existing conditions exclusions for such Continuing Employees and dependents
participating in such similar Bank plans at such time. This Section 8.8 shall
survive the Effective Time. Landmark Bank will credit each Continuing Employee
with each such person's accrued and unused sick days, as reflected in First
Kansas's records, as of the Closing Date (up to a maximum of ninety (90) days).
46
ARTICLE 9
CONDITIONS PRECEDENT TO OBLIGATIONS OF ACQUIROR
Acquiror's obligation to consummate the Contemplated Transactions and
to take the other actions required to be taken by Acquiror at the Closing is
subject to the satisfaction, at or prior to the Closing, of each of the
following conditions (any of which may be waived by Acquiror, in whole or in
part):
Section 9.1 Accuracy of Representations and Warranties. All of the
---------------------------------------------
representations and warranties of First Kansas set forth in this Agreement shall
be true and correct in all material respects with the same force and effect as
if all of such representations and warranties were made at the Closing Date,
provided, however, that to the extent such representations and warranties
expressly relate to an earlier date, such representations shall be true and
correct in all material respects on and as of such earlier date, and provided
further, that to the extent that such representations and warranties are made in
this Agreement subject to a standard of materiality or Knowledge, such
representations and warranties shall be true and correct in all respects.
Section 9.2 First Kansas's Performance. First Kansas shall have
----------------------------
performed or complied in all material respects with all of the covenants and
obligations to be performed or complied with by it under the terms of this
Agreement on or prior to the Closing Date, provided, however, that to the extent
performance and compliance with such covenants and obligations are subject in
this Agreement to a standard of materiality, First Kansas shall have performed
and complied in all respects with such covenants and obligations.
Section 9.3 Proceedings and Documents Satisfactory. All proceedings,
---------------------------------------
corporate or other, to be taken by First Kansas in connection with the
Contemplated Transactions, and all documents incident thereto, shall be
reasonably satisfactory in form and substance to counsel for Acquiror.
Section 9.4 Statutory Requirements. This Agreement shall have been duly
----------------------
and validly authorized by the stockholders of First Kansas. Such stockholder
approval shall have been obtained in conformity with all applicable laws at a
meeting of stockholders for which proxies are solicited in compliance with
applicable laws and requirements.
Section 9.5 No Proceedings. Neither First Kansas nor any First Kansas
---------------
Subsidiary shall be made a party to, or to the Knowledge of First Kansas,
Threatened by any Proceedings which, in the reasonable opinion of Acquiror, have
or are likely to have a Material Adverse Effect on First Kansas, and no
Proceeding shall have been instituted, made or threatened by any Person relating
to the Merger or the validity or propriety of the Contemplated Transactions that
Acquiror reasonably believes will result in material damages or an Order
enjoining the Merger or a determination that First Kansas failed to comply with
legal requirements of a material nature in connection with any of the
Contemplated Transactions.
47
Section 9.6 Absence of Certain Changes or Events. From the date hereof
------------------------------------
to the Effective Time, there shall be and have been no Material Adverse Effect
on First Kansas, or any event or occurrence reasonably likely to result in a
Material Adverse Effect on First Kansas, excluding costs associated with the
Contemplated Transactions and any payments that become due and payable under any
First Kansas Employee Benefits Plans as a result of the occurrence of the
Contemplated Transactions.
Section 9.7 Regulatory Approvals. All of the approvals from Regulatory
--------------------
Authorities referred to in Section 8.1, or otherwise reasonably necessary in the
opinion of Acquiror to consummate the Contemplated Transactions, shall have been
obtained and shall be reasonably satisfactory to Acquiror.
Section 9.8 Environmental Reports. Acquiror shall have been granted
----------------------
acceptable access to any real property in which First Kansas or any First Kansas
Subsidiary has an interest and for which Acquiror desired its independent
professional consultant to prepare an Environmental Report.
Section 9.9 Other Consents and Approvals. Any consents or approvals
-------------------------------
other than those described in Section 9.6 that are required to be secured by
First Kansas to consummate the Contemplated Transactions shall have been
obtained and shall be reasonably satisfactory to Acquiror.
Section 9.10 Dissenting Shares. The total number of Dissenting Shares
------------------
shall be no greater than five percent (5%) of the number of shares of First
Kansas Common Stock issued and outstanding immediately prior to the Effective
Time.
Section 9.11 Minimum Stockholders' Equity. First Kansas's Adjusted
------------------------------
Stockholders' Equity (as calculated immediately prior to the Closing Date) shall
not be less than $13,100,000.
Section 9.12 Transactional Expenses. Acquiror shall have received proof
----------------------
satisfactory to it that First Kansas has paid all of First Kansas Transactional
Expenses.
ARTICLE 10
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF FIRST KANSAS
First Kansas's obligation to consummate the Contemplated Transactions
and to take the other actions required to be taken by First Kansas at the
Closing is subject to the satisfaction, at or prior to the Closing, of each of
the following conditions (any of which may be waived by First Kansas, in whole
or in part):
Section 10.1 Accuracy of Representations and Warranties. All of the
---------------------------------------------
representations and warranties of Acquiror set forth in this Agreement shall be
true and correct in all material respects with the same force and effect as if
all of such representations and warranties were made at the Closing Date,
provided, however, that to the extent such representations and warranties
expressly relate to an earlier date, such representations shall be true and
correct in all material respects on and as of such earlier date, and provided
further, that to the extent that such
48
representations and warranties are made in this Agreement subject to a standard
of materiality or Knowledge, such representations and warranties shall be true
and correct in all respects.
Section 10.2 Acquiror's Performance. Acquiror shall have performed or
-----------------------
complied in all material respects with all of the covenants and obligations to
be performed or complied with by it under the terms of this Agreement on or
prior to the Closing Date, provided, however, that to the extent performance and
compliance with such covenants and obligations are subject in this Agreement to
a standard of materiality, Acquiror shall have performed and complied in all
respects with such covenants and obligations.
Section 10.3 Proceedings and Documents Satisfactory. All proceedings,
---------------------------------------
corporate or other, to be taken by Acquiror in connection with the Contemplated
Transactions, and all documents incident thereto, shall be reasonably
satisfactory in form and substance to counsel for First Kansas.
Section 10.4 No Proceedings. Neither Acquiror nor any Acquiror
---------------
Subsidiary shall be made a party to, or to the Knowledge of Acquiror, Threatened
by any Proceedings which, in the reasonable opinion of First Kansas, have or are
likely to have a Material Adverse Effect on Acquiror, and no Proceeding shall
have been instituted, made or threatened by any Person relating to the Merger or
the validity or propriety of the Contemplated Transactions that First Kansas
reasonably believes will result in material damages or an Order enjoining the
Merger or a determination that Acquiror failed to comply with legal requirements
of a material nature in connection with any of the Contemplated Transactions.
Section 10.5 Absence of Certain Changes or Events. From the date hereof
------------------------------------
to the Effective Time, there shall be and have been no Material Adverse Effect
on Acquiror, or any event or occurrence reasonably likely to result in a
Material Adverse Effect on Acquiror, excluding costs associated with the
Contemplated Transactions.
Section 10.6 Regulatory Approvals. All of the approvals from Regulatory
--------------------
Authorities referred to in Section 8.1, or otherwise reasonably necessary in the
opinion of First Kansas to consummate the Contemplated Transactions, shall have
been obtained and shall be reasonably satisfactory to First Kansas.
Section 10.7 Fairness Opinion. As of the date of this Agreement and
-----------------
prior to distribution of the Proxy Statement to the stockholders of First
Kansas, First Kansas shall have received an opinion from Trident Securities,
Inc. to the effect that the consideration to be received by First Kansas's
stockholders in connection with the Merger, from a financial point of view, is
fair to First Kansas's stockholders, and the same shall not have been withdrawn
prior to the Closing.
Section 10.8 Other Consents and Approvals. Any consents or approvals
------------------------------
other than those described in Section 9.9 that are required to be secured by
Acquiror to consummate the Contemplated Transactions shall have been obtained
and shall be reasonably satisfactory to First Kansas.
49
ARTICLE 11
TERMINATION
Section 11.1 Reasons for Termination and Abandonment. Subject to
-------------------------------------------
Sections 11.2 and 11.3, this Agreement, by prompt written notice given to the
other parties prior to or at the Closing, may be terminated:
(a) by mutual consent of Acquiror and the board of directors of
First Kansas;
(b) by Acquiror if: (i) any of the conditions in Article 9 has
not been satisfied as of the Closing Date or if satisfaction of such a condition
is or becomes impossible (other than through the failure of Acquiror to comply
with its obligations under this Agreement); (ii) the failure to satisfy such
condition constitutes, or would be reasonable likely to constitute a Material
Adverse Effect upon First Kansas or Acquiror after the consummation of the
Contemplated Transactions; and (iii) Acquiror has not waived such condition on
or before the Closing Date;
(c) by First Kansas if: (i) any of the conditions in Article 10
has not been satisfied as of the Closing Date or if satisfaction of such a
condition is or becomes impossible (other than through the failure of First
Kansas to comply with its obligations under this Agreement); (ii) the failure to
satisfy such condition would prevent, or would be reasonable likely to prevent,
Acquiror from (A) paying the Total Purchase Price to the Paying Agent on the
Closing Date or (B) fulfilling its obligations under Section 8.4, Section 8.5 or
Section 8.8, and (iii) First Kansas has not waived such condition on or before
the Closing Date;
(d) by either Acquiror or First Kansas if the Closing has not
occurred (other than through the failure of any party seeking to terminate this
Agreement to comply fully with its obligations under this Agreement) by the
Termination Date;
(e) by Acquiror or First Kansas in accordance with the
provisions of Section 6.10;
(f) by First Kansas if First Kansas has received an Unsolicited
First Kansas Proposal that is determined in good faith by the First Kansas Board
of Directors, after consultation with its independent financial advisors, to be
more favorable to the First Kansas stockholders than the Contemplated
Transactions; or
(g) by Acquiror if First Kansas's Adjusted Stockholders' Equity
(as calculated immediately prior to the Closing Date) is less than $13,100,000.
Section 11.2 Effect of Termination. Except as provided in Section 11.3,
---------------------
in the event of termination of this Agreement pursuant to Section 11.1, this
Agreement shall forthwith become void, there shall be no liability under this
Agreement on the part of Acquiror, First Kansas or Acquisition Corp or any of
their respective Representatives, and all rights and obligations of each party
hereto shall cease, provided, however, that, subject to Section 11.3,
50
nothing herein shall relieve any party from liability for the Breach of any of
its representations and warranties or the Breach of any of its covenants or
agreements set forth in this Agreement.
Section 11.3 Expenses.
--------
(a) Except as provided below, all out-of-pocket expenses
(including all fees and expenses of counsel, accountants, investment bankers,
experts and consultants to a party hereto and its Affiliates) incurred by a
party or on its behalf in connection with or related to the authorization,
preparation, negotiation, execution and performance of this Agreement, the
solicitation of stockholder approvals and all other matters related to the
consummation of the Merger shall be paid by the party incurring such expenses,
whether or not the Merger is consummated.
(b) If this Agreement is terminated by: (i) Acquiror because
First Kansas committed a Breach of its obligations under this Agreement, unless
such Breach is a result of the failure by Acquiror to perform and comply in all
material respects with any of its material obligations under this Agreement
which are to be performed or complied with by it prior to or on the date
required hereunder, (ii) Acquiror or First Kansas because of the failure of the
condition set forth in Section 10.7, or (iii) First Kansas pursuant to Section
11.1(f), then First Kansas shall pay to Acquiror, upon its written demand, an
amount equal to the sum of Acquiror's Expenses, but not in excess of
Seventy-Five Thousand Dollars ($75,000), plus an amount equal to Seven Hundred
Fifty Thousand Dollars ($750,000).
(c) If this Agreement is terminated by Acquiror or First Kansas
because First Kansas's stockholders fail to approve the Contemplated
Transactions and this Agreement on or before the Termination Date, provided,
however, that prior to such termination, First Kansas has not received notice of
a Competing First Kansas Proposal, then First Kansas shall pay to Acquiror, upon
its written demand, an amount equal to Five Hundred Thousand Dollars ($500,000).
(d) If this Agreement is terminated by Acquiror or First Kansas
because First Kansas's stockholders fail to approve the Contemplated
Transactions and this Agreement on or before the Termination Date, and prior to
such termination First Kansas has received a Competing First Kansas Proposal,
then First Kansas shall pay to Acquiror, upon its written demand, an amount
equal to the sum of Acquiror's Expenses, but not in excess of Seventy-Five
Thousand Dollars ($75,000), plus an amount equal to Seven Hundred Fifty Thousand
Dollars ($750,000).
(e) If this Agreement is terminated by Acquiror because
First Kansas's Adjusted Stockholders' Equity (as calculated immediately prior to
the Closing Date) is less than $13,100,000, then First Kansas shall pay to
Acquiror, upon its written demand, an amount equal to the sum of Acquiror's
Expenses, but not in excess of Seventy-Five Thousand Dollars ($75,000), plus an
amount equal to Seven Hundred Fifty Thousand Dollars ($750,000).
(f) In addition to the payments set forth in Sections
11.3(b), (d) and (e) (each such termination described in such sections a "First
Kansas Termination") if there is a First
51
Kansas Termination, and within twenty four (24) months after the termination of
this Agreement First Kansas enters into a Contract with any party other than
Acquiror providing for the acquisition of control of First Kansas or Bank by
such other party, then First Kansas shall pay to Acquiror, upon its written
demand, the additional sum of Two Hundred Fifty Thousand Dollars ($250,000),
plus an amount equal to the amount of Acquiror's Expenses which exceeded
Seventy-Five Thousand Dollars ($75,000) but in no event shall First Kansas's
payment of Acquiror's Expenses pursuant to this Section 11.3(f) as a result of a
First Kansas Termination be greater than Seventy-Five Thousand Dollars
($75,000). If there is a termination of this Agreement pursuant to Section
11.3(c), in addition to the payment set forth therein, if within twenty four
(24) months after such termination First Kansas enters into a Contract with any
party other than Acquiror providing for the acquisition of control of First
Kansas or Bank by such other party, then First Kansas shall pay to Acquiror,
upon its written demand, the additional sum of Five Hundred Thousand Dollars
($500,000), plus an amount equal to the sum of the Acquiror's Expenses, but not
in excess of One Hundred Fifty Thousand Dollars ($150,000). Notwithstanding
Sections 11.3(d) and (f), the provisions of this Section shall in no way limit
Acquiror's rights against any such third party. For purposes of this Section
11.3(f), the phrase "control of First Kansas or Bank" means the acquisition by
any such third party of: (x) legal or beneficial ownership (as defined by Rule
13d-3 promulgated under the Exchange Act) of greater than twenty percent (20%)
of the then issued and outstanding voting stock of First Kansas or Bank through
any transaction to which First Kansas, the Bank or any Affiliate of First Kansas
or Bank is a party; or (y) all or substantially all of the assets of First
Kansas or Bank.
(g) Payment of the sums required by Sections 11.3(b), (c),
(d), (e) and (f) shall constitute liquidated damages and the receipt thereof
shall be Acquiror's sole and exclusive remedy under this Agreement for all
Breaches of this Agreement by First Kansas or such failure to approve the
Contemplated Transactions.
(h) If this Agreement is terminated by First Kansas because
Acquiror committed a Breach of its obligations under this Agreement, unless such
Breach is a result of the failure by First Kansas to perform and comply in all
material respects with any of its material obligations under this Agreement
which are to be performed or complied with by it prior to or on the date
required hereunder, and provided that First Kansas is in compliance with all of
its obligations under this Agreement, Acquiror shall pay to First Kansas, upon
its written demand, an amount equal to the sum of First Kansas's Expenses, but
not in excess of Seventy-Five Thousand Dollars ($75,000), plus an amount equal
to Seven Hundred Fifty Thousand Dollars ($750,000). Payment of the sums required
by this Section 11.3(h) shall constitute liquidated damages and the receipt
thereof shall be First Kansas's sole and exclusive remedy under this Agreement
for all Breaches of this Agreement by Acquiror.
ARTICLE 12
MISCELLANEOUS
Section 12.1 Governing Law. All questions concerning the construction,
-------------
validity and interpretation of this Agreement, and the performance of the
obligations imposed by this Agreement shall be governed by the internal laws of
the State of Kansas applicable to contracts
52
made and wholly to be performed in such state without regard to conflicts of
laws, except that the law of the state of Delaware shall apply to all matters of
corporate law and except to the extent superseded by federal law.
Section 12.2 Assignment. Neither this Agreement nor any of the rights
----------
or obligations hereunder may be assigned, in whole or in part, by any of the
parties to this Agreement without the prior written consent of the other parties
to this Agreement and any purported assignment in violation hereof shall be void
and of no effect.
Section 12.3 Amendment and Modification. The parties may by written
----------------------------
agreement signed by Acquiror and First Kansas: (a) extend the time for the
performance of any of the obligations or other acts of the parties hereto; (b)
waive any inaccuracies in the representations or warranties contained in this
Agreement or in any document delivered pursuant to this Agreement; and (c) waive
compliance with or modify, amend or supplement any of the conditions, covenants,
agreements, representations or warranties contained in this Agreement or waive
or modify performance of any of the obligations of any of the parties to this
Agreement, which are for the benefit of the waiving party, provided, however,
that no such modification, amendment or supplement agreed to after authorization
of this Agreement by First Kansas's stockholders shall affect the rights of such
respective stockholders in any manner which is materially adverse to such
stockholders. The failure of any party to this Agreement to enforce at any time
any provision of this Agreement shall not be construed to be a waiver of such
provision, nor in any way affect the validity of this Agreement or any part
hereof or the right of any party thereafter to enforce each and every such
provision. No waiver of any breach of this Agreement shall be held to constitute
a waiver of any other or subsequent breach.
Section 12.4 Notices. All notices, requests and other communications
-------
hereunder shall be in writing (which shall include telecopier communication) and
shall be deemed to have been duly given if delivered by hand or by overnight
express delivery service, mailed certified or registered mail with first class
postage prepaid or telecopied if confirmed immediately thereafter by also
mailing a copy of any notice, request or other communication by certified or
registered mail with first class postage prepaid:
(a) If to First Kansas, to:
First Kansas Financial Corporation
600 Main Street
Osawatomie, Kansas 66064
Attention: Larry V. Bailey, President and CEO
Telephone: (913) 755-3033
Telecopier: (913) 755-2795
53
with copies to:
Malizia Spidi & Fisch, PC
1100 New York Avenue, N.W., Suite 340 West
Washington, D.C. 20005
Attention: Richard Fisch, Esq.
Telephone: (202) 434-4660
Telecopier: (202) 434-4661
or to such other Person and place as Acquiror shall furnish to First Kansas in
writing; or
(b) if to Acquiror or Acquisition Corp, to:
Landmark Bancorp, Inc.
800 Poyntz Avenue
Manhattan, Kansas 66502
Attention: Patrick L. Alexander, President and CEO
Telephone: (785) 565-2000
Telecopier: (785) 565-2055
with copies to:
Barack Ferrazzano Kirschbaum Perlman & Nagelberg LLC
333 West Wacker, Suite 2700
Chicago, Illinois 60606
Attention: John E. Freechack, Esq.
Telephone: (312) 984-3100
Telecopier: (312) 984-3150
or to such other Person or place as First Kansas shall furnish to Acquiror in
writing. Except as otherwise provided herein, all such notices, requests or
other communications shall be effective: (i) if delivered by hand, when
delivered; (ii) if mailed in the manner provided in this Section, five (5)
Business Days after deposit with the United States Postal Service; (iii) if
delivered by overnight express delivery service, on the next Business Day after
deposit with such service; (iv) if by telecopier, on the next Business Day if
also confirmed by mail in the manner provided in this Section.
Section 12.5 Entire Agreement. This Agreement and any documents
-----------------
executed by the parties pursuant to this Agreement and referred to herein
constitute the entire understanding and agreement of the parties to this
Agreement and supersede all other prior agreements and understandings, written
or oral, relating to such subject matter between the parties, except for the
Joint Confidentiality Agreement between Acquiror and First Kansas dated as of
April 15, 2003. This Agreement and every representation, warranty, covenant,
agreement and provision hereof shall be binding upon and inure to the benefit of
the parties to this Agreement and their respective successors and permitted
assigns.
Section 12.6 Severability. Whenever possible, each provision of this
------------
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any
54
provision of this Agreement is held to be prohibited by or invalid under
applicable law, such provision will be ineffective only to the extent of such
prohibition or invalidity, without invalidating the remainder of such provision
or the remaining provisions of this Agreement unless the consummation of the
Contemplated Transactions is adversely affected thereby.
Section 12.7 Further Instruments. The parties to this Agreement will,
--------------------
at or before the Effective Time, execute and deliver such further instruments as
may be reasonably requested by any other party which are necessary to or
appropriate with respect to the consummation of the transactions contemplated by
this Agreement.
Section 12.8 Counterparts. This Agreement and any amendments thereto
------------
may be executed in any number of counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
Section 12.9 All Reasonable Efforts. Each party represents and warrants
----------------------
that it will use all reasonable efforts to bring about the transactions
contemplated by this Agreement as soon as practicable provided that this Section
shall not obligate Acquiror or First Kansas to remedy any breach of any of its
representations, warranties and covenants herein. In the event that any party
becomes aware of the occurrence or impending occurrence of any event which would
constitute or cause a breach by it of any of the representations or warranties
herein, or would have constituted or caused a breach by it of any of the
representations or warranties herein, had such an event occurred or been known
prior to the date hereof, said party shall immediately give detailed and written
notice thereof to the other party.
Section 12.10 Survival of Representations and Warranties. Except as
---------------------------------------------
otherwise expressly provided herein, including in Section 6.24, Section 8.4,
Section 8.5, and Section 8.8 the covenants, representations and warranties
contained in this Agreement shall survive only until the Effective Time.
Section 12.11 No Third Party Beneficiaries. This Agreement is not
------------------------------
intended to and shall not create any rights in or confer any benefits upon any
Person or entity other than the parties hereto and the Persons identified in
Section 8.5.
55
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers on the day and year first written above.
ATTEST LANDMARK BANCORP, INC.
By: /s/Mark A. Herpich By: /s/Patrick L. Alexander
----------------------------- -------------------------------------
Name: Mark A. Herpich Name: Patrick L. Alexander
Title: Vice President and Title:President and Chief Executive
Secretary Officer
ATTEST LANDMARK ACQUISITION CORPORATION
By: /s/Mark A. Herpich By: /s/Patrick L. Alexander
----------------------------- -------------------------------------
Name: Mark A. Herpich Name: Patrick L. Alexander
Title: Secretary Title:President and Chief Executive
Officer
ATTEST FIRST KANSAS
FINANCIAL CORPORATION
By: /s/Galen E. Graham /s/Larry V. Bailey
----------------------------- -------------------------------------
Name: Galen E. Graham Name: Larry V. Bailey
Title: Secretary and Senior Title:President and Chief Executive
Vice President Officer