=================================================================
AGREEMENT AND PLAN OF MERGER
BY AND AMONG
UNITIED BANK AND TRUST
ABILENE, TEXAS
AND
FIRST STATE BANK, N.A.
ABILENE, TEXAS
DATED OCTOBER 24, 2000
=================================================================
<PAGE>
AGREEMENT AND PLAN OF MERGER
----------------------------
THIS AGREEMENT AND PLAN OF MERGER (the "Merger Agreement"),
is made and entered into as of the 24th day of October, 2000, by
and between FIRST STATE BANK, N.A., a national banking
association whose principal office is located in Abilene, Texas
("FSB"), and UNITED BANK AND TRUST, a Texas banking association
whose principal office is located in Abilene, Texas ("UB&T")
(herein sometimes collectively referred to as the "Banks").
W I T N E S S E T H:
--------------------
WHEREAS, FSB is a national banking association duly
organized and existing under the laws of the United States, with
authorized capital stock consisting of 250,000 shares of common
stock, par value $5.00 per share (the "FSB Stock"), of which
250,000 shares are validly issued and outstanding;
WHEREAS, UB&T is a Texas banking association duly organized
and existing under the laws of the State of Texas, with an
authorized capital stock consisting of 300,000 shares of common
stock, par value $4.00 per share (the "UB&T Stock"), of which
300,000 shares are validly issued and outstanding, and
WHEREAS, a majority of the Boards of Directors of each of
FSB and UB&T, pursuant to the authority given by and in
accordance with the provisions of the National Bank Act and the
Texas Finance Code, have approved this Merger Agreement, pursuant
to which UB&T shall be merged with and into FSB (the "Merger"),
and have authorized the execution hereof, and
WHEREAS, as and when required by the provisions of this
Merger Agreement, all such action as may be necessary or
appropriate shall be taken by FSB and UB&T in order to consummate
the Merger.
NOW, THEREFORE, in consideration of the premises, FSB and
UB&T hereby agree that UB&T shall be merged with and into FSB on
the following terms and conditions:
1. Merger of the Banks. At the Effective Time (as defined
in Section 12 of this Merger Agreement), UB&T shall be merged
with and into FSB pursuant to the provisions of 12 U.S.C. Section 215a
and Section 32.301 of the Texas Finance Code ("Section 32.301").
2. Effects of the Merger. The Merger shall have the
effects set forth in 12 U.S.C. Section 215a and Section 32.301.
At the Effective Time, the corporate existence of UB&T shall be
merged into and continued in FSB, as the bank surviving the Merger
(the "Surviving Bank"), and the Surviving Bank shall be deemed to be
the same corporation as FSB and UB&T. The name of the Surviving
Bank shall be "First State Bank, N.A." The existing office of
UB&T located at 1049 N. Third, Abilene, Texas shall be the main
office of the Surviving Bank, and the existing offices and
facilities of FSB and UB&T immediately preceding the Merger will
become offices and facilities of the Surviving Bank following the
Merger. At the Effective Time, all rights,
-1-
<PAGE>
franchises and interests of FSB and UB&T in and to every type of
property (real, personal and mixed) and choses in action shall be
transferred to and vested in the Surviving Bank by virtue of the
Merger without any deed or other transfer. At the Effective Time,
the Surviving Bank, without any order or other action on the part of
any court or otherwise, shall hold and enjoy all rights of property,
franchises and interests, including appointments, designations
and nominations and all other rights and interests as trustee,
executor, administrator, registrar of stocks and bonds, guardian
of estates, assignee, receiver and in every other fiduciary
capacity, in the same manner and to the same extent as such
rights, franchises and interests were held or enjoyed by FSB and
UB&T, respectively, at the Effective Time. At the Effective
Time, the Surviving Bank shall be liable for all liabilities of
FSB and UB&T, respectively; and all deposits, debts, liabilities,
obligations and contracts of FSB and UB&T, respectively, matured
or unmatured, whether accrued, absolute, contingent or otherwise,
and whether or not reflected or reserved against on balance
sheets, books of account or records of FSB or UB&T, as the case
maybe, including all liabilities of FSB and UB&T for taxes,
whether existing at the Effective Time or arising as a result of
or pursuant to the Merger, shall be those of the Surviving Bank
and shall not be released or impaired by the Merger; and all
rights of creditors and other obligees and all liens on property
of either FSB or UB&T shall be preserved unimpaired.
3. Articles of Association and Bylaws. At the Effective
Time, the Articles of Association and Bylaws of FSB shall
continue in effect as the Articles of Association and Bylaws of
the Surviving Bank until the same shall be amended and changed as
provided by law.
4. Directors and Executive Officers of the Surviving Bank.
At the Effective Time, the directors and executive officers of
the Surviving Bank shall be those persons listed on Exhibit A
attached hereto, and each of such persons shall hold office from
the Effective Time until their respective successors are duly
elected or appointed and qualified in the manner provided in the
Articles of Association and Bylaws of the Surviving bank or as
otherwise provided by law.
5. Conversion of FSB and UB&T Stock. At the Effective
Time, by virtue of this Merger Agreement and without any further
action on the part of any holder, all shares of FSB Stock and
UB&T Stock outstanding at the Effective Time shall be converted
into 250,000 shares of common stock of the Surviving Bank, with a
par value of $5.00 per share.
6. Stock Transfer Books. The stock transfer books of UB&T
shall be closed as of the Effective Time, and no transfer of
record of any of the shares of UB&T Stock shall take place
thereafter.
7. Shareholder Approval. This Merger Agreement shall be
submitted to the sole shareholder of each of the Banks for
approval by written consent. Upon approval by the sole
shareholder of each of the Banks, this Merger Agreement shall be
made effective as soon as practicable thereafter as provided in
Section 11 hereof.
8. Conditions to Consummation of the Merger. All
obligations of the parties under this Merger Agreement are
subject to the receipt of all consents, orders and regulatory
approvals and satisfaction of all other requirements prescribed
by law that are necessary for the
-2-
<PAGE>
consummation of the Merger, including, without limitation, shareholder
approval and the approval of the Office of the Comptroller of the
Currency.
9. Termination. This Merger Agreement may be terminated
and abandoned at any time prior to or on the Closing Date (as
defined in Section 12 of this Merger Agreement), whether before
or after action thereon by the sole shareholder of each of FSB
and UB&T, by the mutual consent in writing of each of FSB and
UB&T.
10. Effect of Termination. In the event of the termination
and abandonment of this Merger Agreement pursuant to the
provisions of Section 9, this Merger Agreement shall be of no
further force or effect and there shall be no liability by reason
of this Merger Agreement or the termination thereof on the part
of either FSB or UB&T or the directors, officers, employees,
agents or stockholders of either of them.
11. Waiver, Amendment and Modification. Any of the terms
or conditions of this Merger Agreement may be waived at any time,
whether before or after action thereon by the sole shareholder of
FSB and UB&T, by the party that is entitled to the benefits
thereof. This Merger Agreement may be modified or amended at any
time, whether before or after action thereon by the sole
shareholder of FSB and UB&T, by FSB and UB&T. Any waiver,
modification or amendment of this Merger Agreement shall be in
writing.
12. Closing Date and Effective Time. The "Closing Date"
shall be the last to occur of (i) the first business day after
the receipt of all necessary regulatory approvals and expiration
of any mandatory waiting periods; or (ii) such later date upon
which FSB and UB&T may mutually agree. Subject to the terms, and
upon satisfaction on or before the closing Date of all
requirements of law, and the conditions specified in this Merger
Agreement, the Merger shall become effective at the opening of
business on the date specified in the certification of the Merger
to be issued by the Office of the Comptroller of the Currency,
such time being herein called the "Effective Time."
13. Multiple Counterparts. For the convenience of the
parties hereto, this Merger Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, and all
counterparts hereof so executed by the parties hereto, whether or
not such counterpart shall bear the execution of each of the
parties hereto, shall be deemed to be, and shall be construed as,
one and the same Merger Agreement. A telecopy or facsimile
transmission of a signed counterpart of this Merger Agreement
shall be sufficient to bind the party or parties whose
signature(s) appear thereon.
14. Governing Law. THIS MERGER AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE
UNITED STATES, AND, TO THE EXTENT NOT INCONSISTENT WITH THE LAWS
OF THE UNITED STATES, THE LAWS OF THE STATE OF TEXAS.
15. Further Assurances. Each party hereto agrees from time
to time, as and when requested by the other party hereto, or by
its successors or assigns, to execute and deliver, or cause to be
executed and delivered, all such deeds and instruments and to
take or cause to be
-3-
<PAGE>
taken such further or other acts, either before or after the Effective
Time, as may be deemed necessary or desirable in order to vest in and
confirm to the Surviving Bank title to and possession of any assets of
FSB or UB&T acquired or to be acquired by reason of or as a result of
the Merger and otherwise to carry out the intent and purposes
hereof, and the officers and directors of the parties hereto are
fully authorized in the name of their respective corporate names
to take any and all such actions.
16. Assignment. This Merger Agreement shall be binding
upon and inure to the benefit of the parties hereto and their
respective successors and assigns, but no party to this Merger
Agreement shall assign this Merger Agreement, by operation of law
or otherwise, in whole or in part, without the prior written
consent of the other parties. Any assignment made or attempted
in violation of this Section 16 shall be void and of no effect.
17. Severability. In the event that any provision of this
Merger Agreement is held to be illegal, invalid or unenforceable
under present or future laws, then (a) such provision shall be
fully severable and this Merger Agreement shall be construed and
enforced as if such illegal, invalid or unenforceable provision
were not a part hereof, (b) the remaining provisions of this
Merger Agreement shall remain in full force and effect and shall
not be affected by such illegal, invalid or unenforceable
provision or by its severance from this Merger Agreement; and (c)
there shall be added automatically as a part of this Merger
Agreement a provision as similar in terms to such illegal,
invalid or unenforceable provision as may be possible and still
be legal, valid and enforceable.
18. Specific Performance. Each of the parties hereto
acknowledges that the other parties would be irreparably damaged
and would not have an adequate remedy at law for money damages in
the event that any of the covenants contained in this Merger
Agreement were not performed in accordance with its terms or
otherwise were materially breached. Each of the parties hereto
therefore agrees that, without the necessity of proving actual
damages or posting bond or other security, the other party shall
be entitled to temporary and/or permanent injunction or
injunctions to prevent breaches of such performance and to
specific enforcement of such covenants in addition to any other
remedy to which they may be entitled, at law or in equity.
19. Rules of Construction. Descriptive headings as to the
contents of particular sections are for convenience only and
shall not control or affect the meaning, construction or
interpretation of any provision of this Merger Agreement. Each
use herein of the masculine, neuter or feminine gender shall be
deemed to include the other genders. Each use herein of the
plural shall include the singular and vice versa, in each case as
the context requires or as it is otherwise appropriate. The word
"or" is used in the inclusive sense.
20. Articles, Sections, Exhibits and Schedules. All
articles and sections referred to herein are articles and
sections, respectively, of this Merger Agreement and all exhibits
referred to herein are exhibits attached to this Merger
Agreement. Any and all schedules, exhibits, annexes, statements,
reports, certificates or other documents or instruments referred
to herein or attached hereto are and shall be incorporated herein
by reference hereto as though fully set forth herein verbatim.
-4-
<PAGE>
21. Binding Effect. All of the terms, covenants,
representations, warranties and conditions of this Merger
Agreement shall be binding upon, and inure to the benefit of and
be enforceable by, the parties hereto and their respective
successors, representatives and permitted assigns. Nothing
expressed or referred to herein is intended or shall be construed
to give any person other than the parties hereto any legal or
equitable right, remedy or claim under or in respect of this
Merger Agreement, or any provision herein contained, it being the
intention of the parties hereto that this Merger Agreement, the
assumption of obligations and statements of responsibilities
hereunder, and all other conditions and provisions hereof are for
the sole benefit of the parties to this Merger Agreement and for
the benefit of no other person. Nothing in this Merger Agreement
shall act to relieve or discharge the obligation or liability of
any third party to any party to this Merger Agreement, nor shall
any provision give any third party any right of subrogation or
action over or against any party to this Merger Agreement.
IN WITNESS WHEREOF, FSB and UB&T have caused this Merger
Agreement to be executed by their duly authorized officers as of
the date first above written, and the officers of each such bank
have hereunto subscribed their names.
ATTEST: FIRST STATE BANK, N.A.,
a national banking association
/s/ Albert C. Jordan III
------------------------------ By: /s/ Bryan Stephenson
Print Name:Albert C. Jordan III -------------------------
-------------------- Bryan Stephenson,
Title: Sub & Cashier Chairman of the Board
--------------------
STATE OF TEXAS
COUNTY OF TAYLOR
I hereby certify that on this 18th day of October, 2000,
before me, a notary public in and for Taylor County, Texas,
personally came BRYAN STEPHENSON, the attorney named in the
foregoing agreement and by virtue and in pursuance of the
authority therein conferred upon him, acknowledged the agreement
to be the act and deed of FIRST STATE BANK, N.A. and desired that
the same might be recorded as such.
WITNESS my hand and notary seal this day and year aforesaid.
/s/ Cindy Stone
------------------------------
(Signature of Notary)
[Notary Seal]
-5-
<PAGE>
ATTEST: UNITED BANK AND TRUST,
a Texas banking association
/s/ Don E. Cosby
------------------------------ By: /s/ Ronald Simpson
Print Name: Don E. Cosby -------------------------
------------------- Ronald Simpson,
Title: Director Chairman of the Board
----------------------
STATE OF TEXAS
COUNTY OF TAYLOR
I hereby certify that on this 24th day of October, 2000,
before me, a notary public in and for Taylor County, Texas,
personally came RONALD SIMPSON, the attorney named in the
foregoing agreement and by virtue and in pursuance of the
authority therein conferred upon him, acknowledged the agreement
to be the act and deed of UNITED BANK & TRUST and desired that
the same might be recorded as such.
WITNESS my hand and notary seal this day and year aforesaid.
/s/ Patricia Ann Cheek
------------------------------
(Signature of Notary)
[Notary Seal]
-6-
<PAGE>
EXHIBIT A
OFFICERS AND DIRECTORS OF
FIRST STATE BANK, N. A.
ABILENE, TEXAS
(SURVIVING BANK)
Officers
--------
Ronald Simpson, President
Nancy Johnson, Cashier
Board of Directors
------------------
Tom C. Nichols, Chairman
Don E. Cosby
Bryan Stephenson
Jim Fitzhugh
Randal Crosswhite
Mike Jarrett
David Kirk
Carl Campbell
Jim Richmond
-7-
