SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported)
April 1, 1998
THE BRYAN-COLLEGE STATION FINANCIAL HOLDING COMPANY
(Exact name of Registrant as specified in its Charter)
Delaware 0-23323 36-4153491
(State or other (Commission File Number) (IRS Employer
jurisdiction of Identification
incorporation) Number)
2900 Texas Avenue, Bryan, Texas 77802
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code:(409)779-2900
N/A
(Former name or former address, if changed since last report)
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Item 5. Other Events
This report is filed in accordance with Release No.34-9072 (February 10,
1971) to reflect the status of the Registrant as a successor issuer, pursuant
to Rule 12g-3 promulgated under the Securities Exchange Act of 1934 (the
"1934 Act"), to First Federal Savings Bank, Bryan, Texas, ("First
Federal"), a federally chartered bank. First Federal's Common Stock was
heretofore registered under the 1934 Act pursuant to Section 12(g)
thereof and First Federal filed periodic reports with the Office of Thrift
Supervision ("OTS") pursuant to Section 12(i) of the 1934 Act.
The reorganization of the Registrant and First Federal into a holding
company structure (the "Reorganization") was completed on April 1, 1998. On
the effective date of the Reorganization, First Federal became a wholly-owned
subsidiary of the Registrant and each share of the Common Stock, par value
$.01 per share, became owned by the Registrant. The periodic reports and
other 1934 Act obligations of the Registrant will be filed with and
administered by the Securities and Exchange Commission rather then the OTS.
For further information with respect to the Reorganization and the
parties thereto, reference is made to the Restated Agreement and Plan of
Merger and the Registrant's Certificate of Incorporation, which are
contained in the Registrant's Proxy Statement/Prospectus dated November 14,
1997 (File No.333-28205) filed with the Commission on November 14,
1997 in the Registrant's Registration Statement on Form S-4.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits
(c) Exhibits
Exhibit 2 Restated Agreement and Plan of Merger,
dated November 14, 1997.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this Report to be signed on its behalf by the
undersigned thereunto duly authorized.
THE BRYAN-COLLEGE STATION
FINANCIAL HOLDING COMPANY
Date: April 8, 1998 By: /s/ J. Stanley Stephen
J. Stanley Stephen
President and Chief Executive Officer
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Exhibit 2
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EXHIBIT 2
RESTATED AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER ("Agreement"), is made and entered
into by and among FIRST FEDERAL SAVINGS BANK, a federally-chartered
capital stock thrift institution ("First Federal"), NEW FIRST FEDERAL
SAVINGS BANK, a federally-chartered capital stock thrift institution in the
process of organization ("New Bank"), the sole stockholder of the Holding
Company, J. Stanley Stephen (the "Holding Company Stockholder") and THE
BRYAN-COLLEGE STATION FINANCIAL HOLDING COMPANY, a Delaware business
corporation (the "Holding Company"), effective as of the date executed by all
of the parties.
WITNESSETH:
WHEREAS, First Federal is a capital stock thrift institution duly
organized and existing under the laws of the United States of America and
having its principal office in Bryan, Texas, with authorized capital stock
consisting of three million shares of common stock, par value $.01 per
share ("First Federal Common Stock"), of which 239,612 shares are issued and
outstanding, and one million shares of serial preferred stock (First
Federal Preferred Stock), of which 87,263 shares are issued and
outstanding;
WHEREAS, New Bank is a capital stock thrift institution in the process
of organization under the laws of the United States of America, which is
proposed to be a subsidiary of the Holding Company and to have authorized
capital stock consisting of one million shares of common stock, par value
$.01 per share ("New Bank Stock");
WHEREAS, the Holding Company is a capital stock corporation duly
organized and existing under the laws of Delaware, with authorized
capital stock consisting of three million shares of common stock, par value
$.01 per share ("Holding Company Common Stock") of which one share is
issued and outstanding, and one million shares serial preferred stock, of
which no shares are issued and outstanding;
WHEREAS, the Holding Company has issued one share of its common
stock to the Holding Company Stockholder in return for $10.00 cash
consideration;
WHEREAS, the Holding Company proposes to purchase one share of the
common stock of New Bank for $10.00;
WHEREAS, it is the desire of the parties to this Agreement to adopt a
plan of reorganization providing for the formation of a thrift institution
holding company; and
WHEREAS, a majority of the respective Boards of Directors of First
Federal, New Bank, and the Holding Company have approved and authorized the
execution of this Agreement pursuant to which the plan of reorganization,
including the merger of New Bank into First Federal, will be implemented;
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NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements herein contained, and in order to prescribe the plan of
reorganization and merger, including its terms and conditions, the mode of
carrying the same into effect, the manner and basis of stockholders of First
Federal exchanging their First Federal Common Stock for Holding Company Common
Stock or selling their First Federal Common Stock and such other
details and provisions as are deemed necessary or proper, the parties
hereby agree as follows:
ARTICLE I
MERGER AND REORGANIZATION
1.1 Subject to the conditions hereinafter set forth, New Bank shall
be merged into First Federal under the Charter of First Federal at the
Effective Date (as defined in Article XI hereof) of the merger (the
"Merger"). The Merger shall be effected pursuant to the provisions of,
and with the effect provided in, the applicable provisions of the laws of the
United States of America and the Rules and Regulations of the Office of
Thrift Supervision.
1.2 On the Effective Date, the resulting thrift institution
in the Merger shall be First Federal (hereinafter referred to as the
"Surviving Institution" whenever reference is made to it as of the Effective
Date of the Merger or thereafter) which will continue to operate as a thrift
institution under its present name as "First Federal Savings Bank." The
Charter and Bylaws of First Federal in effect on the Effective Date shall be
the Charter and Bylaws of the Surviving Institution. The established
offices and facilities of First Federal immediately prior to the Merger
shall become the established offices and facilities of the Surviving
Institution. The locations of the home office and any other offices of
the Surviving Institution are set forth in Schedule A attached hereto.
1.3 On the Effective Date of the Merger, New Bank shall cease to
exist separately and shall be merged with and into First Federal in
accordance with the provisions of this Agreement and Plan of Merger and
in accordance with the provisions of applicable laws, rules and
regulations, and all of the assets and property of every kind and character,
real, personal and mixed, tangible and intangible, choses in action,
rights and credits then owned by New Bank or which would inure to it,
shall immediately, by operation of law and without any conveyance or
transfer and without any further act or deed, be vested in and become the
property of the Surviving Institution, which shall have, hold and enjoy
the same in its own right as fully and to the same extent as the same were
possessed, held and enjoyed by New Bank prior to such Merger. The Surviving
Institution shall be deemed to be and shall be a continuation of the entity
and identity of New Bank and First Federal and all of the rights and
obligations of New Bank and First Federal shall remain unimpaired and the
Surviving Institution, on the Effective Date of such Merger, shall
succeed to all such rights and obligations and the duties and liabilities
connected therewith on such Effective Date.
1.4 On the Effective Date of the Merger, there will be no holders
of deposit accounts, transaction accounts, savings accounts or certificates
of deposit issued by New Bank. Holders of deposit accounts, transaction
accounts, savings accounts or certificates of deposit of First Federal as of
the Effective Date of the Merger shall continue to be holders of the same
interest of the Surviving Institution without change as to withdrawal
value or other rights. No existing deposit
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account, transaction account, savings account or certificate of deposit
holder shall have any of his rights impaired by virtue of the
Merger contemplated hereby.
1.5 The directors and officers of the Surviving Institution
on the Effective Date shall be those persons who are directors and
officers, respectively, of First Federal immediately before the
Effective Date. Information with respect to the directors of the
Surviving Institution is set forth in Schedule B attached hereto. The
committees of the Board of Directors of the Surviving Institution on the
Effective Date shall be the same as, and shall be composed of the same
persons who were serving on, committees appointed by the Board of
Directors of First Federal as they exist immediately before the Effective
Date. The committees, if any, of officers of the Surviving Institution
on the Effective Date shall be the same as, and shall be composed of the
same officers who were serving on, the committees of officers of First
Federal as they exist immediately before the Effective Date.
1.6 Except as expressly prohibited by applicable laws, all
corporate acts, plans, policies, applications, agreements, orders,
registrations, licenses, approvals and authorizations of First Federal and
New Bank, their respective stockholders, Boards of Directors, committees
elected or appointed by their Boards of Directors, and their respective
officers and agents, which were valid and effective immediately before the
Effective Date, shall be taken for all purposes at and after the Effective
Date as the acts, plans and policies, applications, agreements, orders,
registrations, licenses, approvals and authorizations of the Surviving
Institution and shall be as effective and binding thereon as the same
were with respect to First Federal and New Bank immediately before the
Effective Date.
ARTICLE II
CONVERSION, EXCHANGE AND CANCELLATION OF SHARES
2.1 Conversion of First Federal Common Stock. At the Effective
Date, by virtue of the Merger and without any action on the part of the
holder thereof, the Holding Company, First Federal or any other party to
the Agreement, First Federal Common Stock issued and outstanding immediately
prior to the Effective Date shall cease to be outstanding and shall,
subject to the provisions of Sections 2.2 and 2.3 hereof, be converted into
and become the right to receive either:
(a) such number of shares of Holding Company Common
Stock equal to the product of 2.5 multiplied
by the number of shares of First Federal
Common Stock to be converted ("Stock
Distribution");
(b) an amount in cash equal to $24.07 per share
(the "Cash Distribution"),
as the holder thereof shall elect or be deemed to have elected as provided in
Section 2.2 of this Agreement (the aggregate of the Cash Distributions
and the Stock Distributions payable or issuable pursuant to the Merger is
sometimes hereinafter referred to as the "Merger Consideration"); provided,
however, that any shares of First Federal Common Stock held by First
Federal, other
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than in a fiduciary capacity or as a result of debts previously contracted,
shall be canceled and shall not be exchanged for the Merger Consideration.
2.2 Election Procedures.
(a) An election form and other appropriate and
customary transmittal materials (which shall
specify that delivery shall be effected, and risk
of loss and title to the certificates theretofore
representing First Federal Common Stock shall
pass, only upon proper delivery of such
certificates to the exchange agent designated by
Holding Company, or to the Holding Company in
its capacity as exchange agent, as determined by
the Holding Company (the "Exchange Agent"), in
such form as First Federal and the Holding
Company shall mutually agree ("Election Form")
shall be mailed approximately 25 days prior to
the anticipated Effective Date or on such other
date as First Federal and the Holding Company
shall mutually agree (the "Mailing Date") to each
holder of record of First Federal Common Stock as
of five business days prior to the Mailing Date
("Election Form Record Date").
(b) Each Election Form shall specify the amount of
Merger Consideration receivable for each share of
First Federal Common Stock in the Cash
Distribution and the Stock Distribution and shall
permit a holder to elect to receive, as provided
in Section 2.2 of this Agreement, (i) the Stock
Distribution for all of his shares (in which
case, such holder's shares shall be deemed to be
and shall be referred to herein as "Stock
Election Shares"), (ii) the Cash Distribution for
certain designated shares (in which case, such
holder's shares so designated shall be deemed to
be and shall be referred to herein as "Cash
Election Shares") with the remaining shares being
converted to the Stock Distribution as Stock
Election Shares, or (iii) the Cash Distribution
for all of his shares.
(c) Any shares of First Federal Common Stock with
respect to which the holder thereof shall not, as
of the Election Deadline (as defined below), have
made an election to receive either the Cash
Distribution or the Stock Distribution (such
holder's shares being deemed to be and shall be
referred to herein as "No Election Shares") by
submission to the Exchange Agent of an effective,
properly completed Election Form shall be deemed
to be Cash Election Shares. "Election Deadline"
means 5:00 p.m., local time, on the 20th day
following the Mailing Date, or such other time
and date as the Holding Company and First Federal
shall mutually agree.
(d) First Federal shall promptly make available one
or more Election Forms as may be reasonably
requested by all persons who become holders (or
beneficial owners) of First Federal Common Stock
between the Election Form Record Date and close
of business on the business day prior to the
Election Deadline, and First Federal shall
provide to the Exchange Agent all information
reasonably necessary for it to perform as
specified herein.
(e) Any such election shall have been properly made
only if the Exchange Agent shall have actually
received a properly completed Election Form by
the Election Deadline. An Election Form shall
be deemed properly completed only if
accompanied by one or more certificates (or
customary affidavits and indemnification
regarding the loss or destruction of such
certificates or the guaranteed delivery of such
certificates) representing all shares of First
Federal Common Stock covered by such Election
Form, together with duly executed transmittal
materials included in the Election Form. Any
Election Form may be revoked or changed by the
person submitting such
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Election Form at or prior
to the Election Deadline. In the event an
Election Form is revoked prior to the Election
Deadline, the shares of First Federal Common
Stock represented by such Election Form shall
become No Election Shares and First Federal shall
cause the certificates representing First Federal
Common Stock to be promptly returned without
charge to the person submitting the Election Form
upon written request to that effect from the
person who submitted the Election Form. Subject
to the terms of this Agreement and of the
Election Form, the Exchange Agent shall have
reasonable discretion to determine whether any
election, revocation or change has been properly
or timely made and to disregard immaterial
defects in the Election Forms, and any good faith
decisions of the Exchange Agent regarding such
matters shall be binding and conclusive. Neither
the Holding Company nor the Exchange Agent shall
be under any obligation to notify any person of
any defect in an Election Form.
(f) Allocation Procedures. Within ten business days
after the Effective Date, or as soon thereafter
as practicable, the Holding Company shall cause
the Exchange Agent to effect the allocation among
the holders of First Federal Common Stock of
rights to receive Holding Company Common Stock or
cash in the Merger as follows:
If shares of Holding Company Common Stock that
would be issued in the Merger upon conversion
of the Stock Election Shares represents less
than 20% of the shares of First Federal Common
Stock outstanding (the "Minimum Stock Value"),
then the Holding Company will be permitted to
allocate cash and stock pro rata to those
shareholders electing the Cash Distribution
(other than Dissenting Shares as defined in
Section 2.3) in such amount as would result in
at least 20% of First Federal Common Stock to
be exchanged for Holding Company Common Stock;
provided, however, that the Holding Company
may pay cash for First Federal Common Stock
which, if exchanged for Holding Company Common
Stock in the Merger would result in adverse
accounting treatment, as determined by
independent accountants for the Holding
Company, and that any pro rata distribution of
cash and stock pursuant to this Section shall
be based on the amount Stock Election Shares
excluding any Stock Election Shares
exchangeable for cash due to such accounting
considerations. For purposes of determining
the Minimum Stock Value under this Section,
all Dissenting Shares shall be deemed Cash
Election Shares.
2.3 Dissenting Shares. Any record holder of First Federal's
Common Stock may require First Federal to pay the fair or appraised value
of his or her First Federal Common Stock, determined as of the Effective
Date of the Merger, by complying with Section 552.14 of the Office of
Thrift Supervision ("OTS") Rules and Regulations. The computation of
fair or appraised value of such shares (the "Dissenting Shares") will
exclude any element of value arising from the accomplishment or expectation
of the Merger. Notwithstanding any other provision of this Agreement,
any Dissenting Shares shall not, after the Effective Date, be entitled to
vote for any purpose or receive any dividends or other distributions
and shall be entitled only to such rights as are afforded in respect of
Dissenting Shares pursuant to the OTS Regulations.
2.4 Exchange Procedures.
(a) In accordance with Section 2.2(a) herein, holders
of record of certificates formerly representing
shares of First Federal Common Stock (the
"Certificates") shall be instructed to tender
such Certificates to the Exchange Agent pursuant
to a letter of transmittal that the
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Exchange
Agent shall deliver or cause to be delivered to
such holders, which letter of transmittal shall
be included with the Election Forms distributed
pursuant to Section 2.2(a).
(b) The Holding Company or, at the election of the
Holding Company, the Exchange Agent, shall accept
Certificates upon compliance with such reasonable
terms and conditions as the Holding Company or
the Exchange Agent may impose to effect an
orderly exchange thereof in accordance with
customary exchange practices. All Certificates
shall be appropriately endorsed or accompanied by
such instruments of transfer as the Holding
Company or the Exchange Agent may require.
(c) Each outstanding Certificate shall until duly
surrendered to the Holding Company or the
Exchange Agent be deemed to evidence ownership of
the Merger Consideration into which the First
Federal Common Stock previously represented by
such Certificate shall have been converted
pursuant to this Agreement.
(d) Subject to Section 2.3, after the Effective Date,
holders of Certificates shall cease to have
rights with respect to First Federal Common Stock
previously represented by such Certificates, and
their sole rights shall be to exchange such
Certificates for the Merger Consideration
provided for in this Agreement. After the
Effective Date, there shall be no further
transfer on the records of First Federal of
Certificates, and if such Certificates are
presented to First Federal for transfer, they
shall be canceled against delivery of the Merger
Consideration provided therefor in this
Agreement. Neither the Exchange Agent nor the
Holding Company shall be obligated to deliver the
Merger Consideration to which any former holder
of First Federal Common Stock is entitled as a
result of the Merger until such holder surrenders
the Certificates as provided herein. No dividends
declared will be remitted to any person entitled
to receive Holding Company Common Stock under
this Agreement until such person surrenders the
Certificates representing the right to receive
such Holding Company Common Stock, at which time
such dividends shall be remitted to such person,
without interest and less any taxes that may have
been imposed thereon. Neither the Exchange Agent
nor any party to this Agreement nor any affiliate
thereof shall be liable to any holder of stock
represented by any Certificate for any
consideration paid to a public official pursuant
to applicable abandoned property, escheat or
similar laws. The Holding Company and the
Exchange Agent shall be entitled to rely upon the
stock transfer books of First Federal to
establish the identity of those persons entitled
to receive the Merger Consideration specified in
this Agreement, which books shall be conclusive
with respect thereto. In the event of a dispute
with respect to ownership of stock represented by
any Certificate, the Holding Company and the
Exchange Agent shall be entitled to deposit any
Merger Consideration represented thereby in
escrow with an independent third party and
thereafter be relieved with respect to any claims
thereto.
2.5 No Fractional Shares. Notwithstanding any other provision of
this Agreement, neither certificates nor scrip for fractional shares of
Holding Company Common Stock shall be issued in the Merger. Each holder
who otherwise would have been entitled to a fraction of a share of Holding
Company Common Stock shall receive the number of shares rounded up to the
next whole number of shares.
2.6 First Federal Preferred Shares. First Federal preferred
stock currently issued and outstanding will remain issued and outstanding
First Federal Preferred Stock. The Merger will not change any of the terms
or conditions of First Federal Preferred Stock, and holders of First
Federal Preferred Stock will not have any election in the Merger.
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2.7 New Bank Stock. The outstanding share of New Bank Stock
issued to the Holding Company shall be canceled and converted into a
share of First Federal Common Stock.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF HOLDING COMPANY
The Holding Company hereby represents and warrants as follows:
3.1 The Holding Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware. At
the Effective Date, the Holding Company will have corporate power to
carry on its business as then to be conducted and will be qualified
to do business in every jurisdiction in which the character and location
of the assets to be owned by it or the nature of the business to be
transacted by it require qualification.
3.2 The Holding Company has no subsidiaries other than New Bank at the
date of this Agreement. Between the date hereof and the Effective Date,
the Holding Company will not create or acquire any subsidiaries, other
than New Bank, without the consent of First Federal.
3.3 The authorized capital stock of the Holding Company consists
on the date hereof of three million shares of Holding Company Common
Stock, par value $.01 per share, and one million shares of serial preferred
stock. Except as set forth above or as contemplated by this Agreement
or necessary for the effectuation of the Merger, as of the date hereof,
the Holding Company has one share of its capital stock issued and outstanding
and does not have any outstanding subscriptions, options or other agreements
or commitments obligating it to issue shares of its capital stock.
3.4 Compliance with the terms and provisions of this Agreement by
the Holding Company will not conflict with or result in a breach of any of the
terms, conditions or provisions of any judgment, order, injunction,
decree or ruling of any court or governmental authority, domestic or
foreign, or of any agreement or instrument to which the Holding Company
is a party, or constitute a default thereunder.
3.5 The execution, delivery and performance of this Agreement
have been duly authorized by the Board of Directors of the Holding Company
and have been approved by the Holding Company Common Stockholders.
3.6 The Holding Company has complete and unrestricted power to enter
into and to consummate the transactions contemplated by this Agreement,
subject to approval of this Agreement and the Merger by the Holding
Company Stockholder and the provisions of Section 7.3 hereof.
3.7 On or prior to the Effective Date, the Holding Company will have
available the funds necessary to convert and exchange the outstanding First
Federal Common Stock to be converted and exchanged pursuant to the Merger as
provided herein.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF FIRST FEDERAL
First Federal hereby represents and warrants as follows:
4.1 First Federal is a capital stock thrift institution duly
organized, validly existing and in good standing under the laws of the
United States of America, and is duly authorized to carry on its business as
it is now being conducted.
4.2 The authorized capital stock of First Federal consists on the
date hereof of three million shares of First Federal Common Stock, par
value $.01 per share, of which 239,612 shares are issued and
outstanding, and one million shares of serial preferred stock, of which
87,263 shares are issued and outstanding.
4.3 Compliance with the terms and provisions of this Agreement
by First Federal will not conflict with, constitute a default under or
result in a breach of any of the terms, conditions or provisions
of any judgment, order, injunction, decree or ruling of any court or
governmental authority, domestic or foreign, or of any agreement or
instrument to which First Federal is a party.
4.4 The execution, delivery and performance of this Agreement
have been duly authorized by the Board of Directors of First Federal.
4.5 First Federal has complete and unrestricted power to enter into
and to consummate the transactions contemplated by this Agreement, subject
to the provisions of Section 7.3 hereof.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF NEW BANK
New Bank hereby represents and warrants as follows:
5.1 New Bank, at the direction of the Holding Company, will apply to
the Office of Thrift Supervision to be chartered as a capital stock thrift
institution, and immediately before the Effective Date will be duly
organized, validly existing and in good standing under the laws of the United
States of America, and duly authorized to carry on the business of an
interim federal thrift institution.
5.2 The authorized capital stock of New Bank is proposed to consist of
one million shares of New Bank Stock, par value $.01 per share. Except for
the share of New Bank Stock issued to the Holding Company for the
effectuation of the Merger, prior to the Merger, New Bank will not have any
shares of its stock issued and outstanding. There are no outstanding
subscriptions, options or other arrangements or commitments obligating New
Bank to issue any shares of its capital stock.
5.3 Compliance with the terms and provisions of this Agreement
by New Bank will not conflict with, constitute a default under or
result in a breach of any of the terms, conditions or provisions of
any judgment, order, injunction, decree or ruling of any court or
governmental
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authority, domestic or foreign, or of any agreement or instrument to which New
Bank is, or upon organization will be, a party.
5.4 Prior to the Merger, the execution, delivery and
performance of this Agreement will be duly authorized by the Board of
Directors of New Bank and will be approved by the Holding Company as the
sole stockholder of New Bank.
5.5 New Bank has complete and unrestricted power to enter into and
to consummate the transaction contemplated by this Agreement, subject
to the approval of this Agreement and the Merger by the Holding Company as
sole stockholder of New Bank and the provisions of Section 7.3 hereof.
ARTICLE VI
OBLIGATIONS OF THE PARTIES PENDING THE EFFECTIVE DATE
6.1 Prior to the Effective Date, (i) New Bank shall complete
its organization and have directors who shall be duly elected and qualified,
(ii) the Holding Company shall complete its organization and have directors
who shall be duly elected and qualified, and (iii) this Agreement shall be
duly submitted to the stockholders of First Federal for the purpose of
considering and acting upon this Agreement in the manner required by law.
Each party shall use its best efforts to obtain the requisite approvals
of this Agreement and the transactions contemplated herein and, after
obtaining such approval, the parties through their respective officers
and directors, shall execute and file with the appropriate regulatory
authorities all documents and papers, and the parties shall take every
reasonable action, necessary to comply with and to secure such approval
of this Agreement and the transactions contemplated herein as may be
required by all applicable statutes, rules and regulations.
ARTICLE VII
CONDITIONS PRECEDENT TO THE CONSUMMATION OF
THE MERGER AND REORGANIZATION
The obligations of the parties hereto to consummate the Merger and
the reorganization contemplated hereby shall be subject to the conditions
that on or before the Effective Date:
7.1 Each of the parties hereto shall have performed and complied
with all of its obligations hereunder which are to be complied with or
performed on or before the Effective Date.
7.2 This Agreement and related transactions contemplated hereby shall
have been duly and validly authorized, approved and adopted at a meeting of
stockholders duly and properly called for such purpose by First Federal by an
affirmative vote of at least 50 percent of the outstanding voting stock of
First Federal plus one affirmative vote, all in accordance with the
applicable regulations of the Office of Thrift Supervision.
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7.3 Orders, consents and approvals, in form and substance reasonably
satisfactory to all the parties hereto, shall have been entered by the
Office of Thrift Supervision, (or there shall have been received
satisfactory assurance that such orders, consents or approvals are not
required), granting the authority necessary for consummation of the
transactions contemplated by this Agreement pursuant to the provisions
of the Rules and Regulations of the Office of Thrift Supervision, all
other requirements prescribed by law and the rules and regulations of any
other regulatory authority having jurisdiction over the transactions
contemplated herein shall have been satisfied.
7.4 There shall have been received from Crowe, Chizek & Company
LLP, accountants to First Federal, an opinion to the effect that:
1. No gain or loss will be recognized on the receipt of
the Holding Company Common Stock by First Federal
common shareholders who receive solely Holding Company
Common Stock in exchange for First Federal Common Stock
(IRC Section 351(a)). Gain, but not loss, will be
recognized by First Federal common shareholders who
receive both Holding Company Common Stock and cash in
exchange for First Federal Common Stock, but in an
amount not in excess of the cash received (IRC Section
351(b)).
2. No gain or loss will be recognized by the Holding
Company on the receipt of cash and First Federal Common
Stock solely in exchange for shares of Holding Company
Common Stock (IRC Section 1032).
3. The basis of the Holding Company Common Stock received
by a First Federal common shareholder will be the same
as the adjusted basis of the First Federal Common Stock
surrendered in exchange therefor, decreased by the
amount of any cash received, and increased by any gain
recognized in the exchange (IRC Section 358).
4. The holding period of the Holding Company Stock
received by a First Federal common shareholder in
exchange for the transfer of First Federal Common Stock
will include the period during which the First Federal
Common Stock surrendered in exchange therefor was held,
provided that the First Federal Common Stock was held
as a capital asset on the date of the exchange (IRC
Section 1223(1)).
5. The basis of the First Federal Common Stock received by
the Holding Company will be the same as the basis of
the First Federal Common Stock in the hands of the
First Federal common shareholders immediately prior
to the exchange, increased by any gain recognized by
the First Federal common shareholders in the exchange
(IRC Section 362(a)).
6. The holding period of the First Federal Common Stock
received by Holding Company will include the period
during which the First Federal Common Stock was held by
the First Federal common shareholders (IRC Section
1223(2)).
7. Gain or loss, if any, will be recognized by a First
Federal common shareholder who receives solely cash in
exchange for the transfer of First Federal Common
Stock.
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7.6 Holders of no more than 80% of First Federal Common Stock
shall elect to receive cash as Merger Consideration (approximately $4.6
million of cash elections).
7.7 The Holding Company will have successfully completed a public
offering for at least 150,000 shares of Holding Company Common Stock, and
at least $3,400,000 of Units, each Unit consisting of debentures and
warrants to purchase Holding Company Common Stock.
7.8 No good faith action, suit or proceeding shall have been
instituted or shall have been threatened before any court or other
governmental body or by any public authority to restrain, enjoin or prohibit
the Merger and reorganization contemplated herein, or which might restrict
the operation of the business of the Surviving Institution or the ownership
of the capital stock of the Surviving Institution or the exercise of any
rights with respect thereto by the Holding Company, or subject any of the
parties hereto or any of their directors or officers to any liability,
fine, forfeiture, or penalty on the grounds that the transactions
contemplated hereby, the parties hereto or their directors or officers,
have breached or will breach any applicable law or regulation, or have
otherwise acted improperly in connection with the transactions contemplated
hereby, and with respect to which the parties hereto have been advised by
counsel that, in the opinion of such counsel, such action, suit or
proceeding raises substantial questions of law or fact which could
reasonably be decided adversely to any party hereto or its directors or
officers.
ARTICLE VIII
ADDITIONAL CONDITIONS PRECEDENT
8.1 Each obligation of the Holding Company and New Bank to be
performed on or prior to the Effective Date shall be subject to the
satisfaction, on or before the Effective Date, of the following additional
conditions:
(a) The representations and warranties made by First
Federal in this Agreement shall be true as though
such representations and warranties had been made
or given on and as of the Effective Date; and
(b) This Agreement and the transactions contemplated
hereby shall have been duly and validly
authorized, approved and adopted by First
Federal.
8.2 Each obligation of First Federal to be performed on or prior to the
Effective Date shall be subject to the satisfaction, on or before the
Effective Date, of the following additional conditions:
(a) The representations and warranties made by the
Holding Company and by New Bank contained in this
Agreement shall be true as though such
representations and warranties had been made or
given at and as of the Effective Date;
(b) This Agreement and the transactions contemplated
hereby shall have been duly and validly
authorized, approved and adopted by the Holding
Company and by New Bank.
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ARTICLE IX
AMENDMENTS
First Federal, the Holding Company and New Bank, by mutual consent of
their respective Boards of Directors or incorporators, as the case may be, to
the extent permitted by law, may amend, modify, supplement and interpret
this Agreement in such manner as may be mutually agreed upon by them in
writing at any time before or after the approval and adoption thereof by the
stockholders of First Federal, provided, however, that no such
amendment, modification, supplement or interpretation shall have a
materially adverse impact on First Federal or its stockholders except with
the approval of the stockholders of First Federal.
ARTICLE X
TERMINATION AND ABANDONMENT
10.1 Anything contained in this Agreement to the contrary
notwithstanding, this Agreement may be terminated and the Merger and
reorganization abandoned at any time (whether before or after the approval and
adoption thereof by the stockholders of First Federal) prior to the
Effective Date:
(a) By mutual consent of the parties hereto;
(b) By the Holding Company or New Bank, if any
condition set forth in Sections 7.1 through 7.8
of Article VII or Section 8.1 of Article VIII has
been met or has not been validly waived or if; or
(c) By First Federal, if any condition set forth in
Sections 7.1 through 7.8 of Article VII or
Section 8.2 of Article VIII has not been met or
has not been validly waived or if the holders of
more than 10 percent of the outstanding
voting stock of First Federal deliver properly
to First Federal a demand for appraisal and
payment for shares pursuant to 12 C.F.R. §.
552.14.
10.2 An election by a party hereto to terminate this Agreement
and abandon the Merger as provided in Section 10.1 shall be exercised
on behalf of such thrift institution or corporation by its Board of
Directors or incorporators, as may be the case.
10.3 In the event of the termination of this Agreement pursuant to
the provisions of Section 10.1 hereof, this Agreement shall become void and
have no effect and create no liability on the part of any of the
parties hereto or their respective incorporators, directors, officers or
stockholders in respect to this Agreement.
10.4 Any of the terms or conditions of this Agreement (other
than the necessary approvals of stockholders and government
authorities) may be waived at any time by the party which is entitled to
the benefit thereof, by action taken by its Board of Directors; provided,
however, that such action shall be taken only if, in the judgment of the
Board of Directors taking the action, such waiver will
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not have a materially adverse effect on the benefits intended under this
Agreement to be afforded to the stockholders of First Federal.
ARTICLE XI
EFFECTIVE DATE
The effective date of the Merger ("Effective Date") shall be the last day
of the calendar month during which the last to occur of the following events
takes place: (i) the Merger is approved by the Office of Thrift
Supervision and the Articles of Combination are executed by the Office
of Thrift Supervision, (ii) all other required regulatory approvals have been
obtained, and (iii) all other conditions to the Merger herein set forth
have been met. The Boards of Directors of First Federal, New Bank and
the Holding Company each specifically and expressly delegate to their
respective chief executive officers the authority to change, by
mutual consent of such officers, the Effective Date of the Merger if
necessary to properly and efficiently accomplish the Merger. However, in
no event shall the Merger become effective unless and until approved by
the Office of Thrift Supervision.
ARTICLE XII
TERMINATION OF REPRESENTATIONS AND
WARRANTIES AND CERTAIN AGREEMENTS
The respective representations, warranties, covenants and agreements
of the parties hereto in Articles III, IV and V hereof shall expire with,
and be terminated and extinguished by, the Merger and reorganization
pursuant to this Agreement at the time of the consummation thereof on the
Effective Date. None of the parties shall be under any liability
whatsoever with respect to any such representation, warranty, covenant or
agreement which does not survive the Merger and reorganization, it being
intended that the sole remedy of the parties for a breach of any such
representation, warranty, covenant or agreement shall be to elect not to
proceed with the Merger and reorganization if such breach has resulted in
the failure to satisfy a condition precedent to such party's obligation
to consummate the transactions contemplated hereby.
ARTICLE XIII
MISCELLANEOUS
13.1 This Agreement embodies the entire agreement among the parties
and there have been and are no agreements, representations or
warranties among the parties other than those set forth or provided for
herein.
13.2 Any number of counterparts hereof may be executed and each such
counterpart shall be deemed to be an original instrument, but all
such counterparts together shall constitute but one instrument.
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13.3 Any notice or waiver to be given to any party shall be in writing
and shall be deemed to have been duly given if delivered, mailed, or
sent by prepaid telegram, addressed to such party at 2900 Texas Avenue, Bryan,
Texas 77802.
13.4 The captions contained in this Agreement are solely for convenient
reference and shall not be deemed to affect the meaning or
interpretation of any paragraph hereof.
13.5 First Federal will pay all fees and expenses incurred in
connection with the transactions contemplated by this Agreement.
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IN WITNESS WHEREOF, First Federal, New Bank and the Holding Company each
under the authority of its Board of Directors, have caused this Agreement
to be executed with the intent to be legally bound hereby.
FIRST FEDERAL SAVINGS BANK
ATTEST:
By: /s/ Charles Neelley By: /s/ J. Stanley Stephen
Charles Neelley, Secretary J. Stanley Stephen,
President and Chief
Executive Officer
Date: November 14, 1997 Date: November 14, 1997
NEW FIRST FEDERAL SAVINGS
ATTEST: BANK
By: /s/ Charles Neelley By: /s/J. Stanley Stephen
Charles Neelley, Secretary J. Stanley Stephen
President and Chief
Executive Officer
Date: November 14, 1997 Date: November 14, 1997
ATTEST: THE BRYAN-COLLEGE STATION
FINANCIAL HOLDING COMPANY
By: /s/ Charles Neelley By: /s/ J. Stanley Stephen
Charles Neelley, Secretary J. Stanley Stephen
President and Chief
Executive Officer
Date: November 14, 1997 Date: November 14, 1997
Witness:
/s/ Charles Neelley /s/ J. Stanley Stephen
Charles Neelley J. Stanley Stephen
Date: November 14, 1997 Date: November 14, 1997
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SCHEDULE A
Offices of Surviving Institution
Main Office
2900 Texas Avenue
Bryan, Texas 77802
Branch Office
2200 Longmire
College Station, Texas
Loan Production Offices
510 N. Valley Mills Drive
Waco, Texas 76710
701 Normal Park, Suite 208E
Huntsville, Texas 77340
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SCHEDULE B
Directors of Surviving Institution
Term
Name Address Expires
J. Stanley Stephen 2900 Texas Avenue 1997
Bryan, Texas 77802
Ken Hayes 2900 Texas Avenue 1997
Bryan, Texas 77802
Charles Neelley 2900 Texas Avenue 1997
Bryan, Texas 77802
George Koenig 2900 Texas Avenue 1997
Bryan, Texas 77802
Ernest A. Wentrcek 2900 Texas Avenue 1998
Bryan, Texas 77802
Robert H. Conaway 2900 Texas Avenue 1998
Bryan, Texas 77802
Richard L. Peacock 2900 Texas Avenue 1999
Bryan, Texas 77802
Jack W. Lester, Jr. 2900 Texas Avenue 1999
Bryan, Texas 77802
Phil Hobson 2900 Texas Avenue 1999
Bryan, Texas 77802
J. Roland Ruffino 2900 Texas Avenue 1999
Bryan, Texas 77802
Successor or substitute directors may be named, subject to compliance
with the requirements of applicable law and the Charter and Bylaws of
the Surviving Institution.
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