<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. __)*
GOLDENBANKS OF COLORADO, INC.
-----------------------------
(Name of Issuer)
Common Stock, $0.05 par value
-----------------------------
(Title of Class of Securities)
381346 10 5
-----------
(CUSIP Number)
Stanley S. Stroup
Executive Vice President and General Counsel
Norwest Corporation
Norwest Center, Sixth and Marquette
Minneapolis, Minnesota 55479-1026
612-667-8858
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
November 22, 1994
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [_].
Check the following box if a fee is being paid with this statement [X]. (A fee
is not required only if the reporting person: (1) has a previous statement on
file reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.
See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits, should be filed with
the Commission. See Rule 13d-1(a) for other parties to whom copies are to be
sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
<PAGE>
CUSIP NO. 381346 10 5 SCHEDULE 13D
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Norwest Corporation
Tax Identification No. 41-0449260
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)
(A) [_]
(B) [_]
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS (SEE INSTRUCTIONS)
WC
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(D) OR 2(E) [_]
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF
272,019
SHARES ----------------------------------------------------------
8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY ----------------------------------------------------------
9 SOLE DISPOSITIVE POWER
EACH
272,019
REPORTING ----------------------------------------------------------
10 SHARED DISPOSITIVE POWER
PERSON
WITH
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
272,019
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(SEE INSTRUCTIONS)
[_]
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
16.6%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
CO
- --------------------------------------------------------------------------------
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<PAGE>
SCHEDULE 13D
relating to the
Common Stock, Par Value $0.05 Per Share,
of
Goldenbanks of Colorado, Inc.
Item 1. Security and Issuer
The class of equity securities to which this Statement relates is the
common stock, $0.05 par value ("Goldenbanks Common Stock"), of Goldenbanks of
Colorado, Inc. ("Goldenbanks"), a Delaware corporation. The principal executive
offices of Goldenbanks are located at 1301 Jackson Street, Golden, Colorado
80401.
Item 2. Identity and Background
This Statement is being filed by Norwest Corporation ("Norwest"), a
Delaware corporation. The principal executive offices of Norwest, from which
its principal business is carried out, are located at Norwest Center, Sixth and
Marquette, Minneapolis, Minnesota 55479-1000.
Norwest is a bank holding company registered under the Bank Holding
Company Act of 1956, as amended. Through its commercial bank subsidiaries,
Norwest conducts a general banking and trust business in the states of Arizona,
Colorado, Illinois, Indiana, Iowa, Minnesota, Montana, Nebraska, New Mexico,
North Dakota, Ohio, South Dakota, Texas, Wisconsin, and Wyoming. Norwest also
owns subsidiaries engaged in various businesses related to banking, principally
mortgage banking, equipment leasing, agricultural finance, commercial finance,
consumer finance, securities brokerage and underwriting, insurance agency
services, computer and data processing services, corporate trust services, and
venture capital investments.
The name, business address, present principal occupation and citizenship
of each director of Norwest are set forth on Schedule I hereto and those of each
executive officer of Norwest are set forth on Schedule II hereto.
During the past five years, neither Norwest nor, to the best of knowledge
of Norwest, any of its executive officers or directors has been convicted in any
criminal proceeding (excluding traffic violations or similar misdemeanors) or
has been a party to a civil proceeding of a judicial or administrative body of
competent jurisdiction and, as a result of such proceeding, is or was subject to
a judgment, decree or final order enjoining violations of, or prohibiting or
mandating activities subject to, federal or state securities laws or finding any
violation with respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration
As more fully described in Item 6 of this Statement, Goldenbanks has
granted to Norwest an option pursuant to which
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<PAGE>
Norwest has the right, upon the occurrence of certain events, to purchase from
Goldenbanks up to 272,019 shares of Goldenbanks Common Stock for $40.50 per
share, subject to adjustment under certain circumstances (the "Option"). If
Norwest were to exercise the Option in full, the funds required to purchase the
shares of Goldenbanks Common Stock issuable upon such exercise would be
approximately $11 million. It is currently anticipated that such funds would be
provided from Norwest's working capital.
Item 4. Purpose of Transaction
On November 22, 1994, Goldenbanks and Norwest entered into an Agreement
and Plan of Reorganization (the "Reorganization Agreement") providing for the
merger (the "Merger") of a wholly owned subsidiary of Norwest into Goldenbanks,
with Goldenbanks as the surviving corporation. The purpose of the
Reorganization Agreement is for Norwest to acquire Goldenbanks.
Upon consummation of the Merger and pursuant to the Reorganization
Agreement, each outstanding share (except for shares as to which dissenter's
rights are perfected) of Goldenbanks Common Stock will be converted into 1.9876
shares of the common stock, par value $1 2/3 per share, of Norwest ("Norwest
Common Stock").
Concurrently with their entering into the Reorganization Agreement,
Norwest and Goldenbanks also entered into a Stock Option Agreement (the "Option
Agreement") pursuant to which Goldenbanks granted to Norwest the Option. The
purpose of the Option Agreement is to increase the likelihood that the Merger
will be completed as contemplated by the Reorganization Agreement.
The principal provisions of the Reorganization Agreement and the Option
Agreement are summarized in Item 6 of this Statement and copies of the
Reorganization Agreement and the Option Agreement are filed herewith as Exhibits
1 and 2, respectively.
Norwest may acquire additional securities of Goldenbanks. Except as set
forth above, Norwest has no plans or proposals with respect to Goldenbanks that
relate to or would result in, prior to the completion of the Merger, any of the
actions specified in clauses (b) through (j) of Item 4 of Schedule 13D. Upon the
completion of the Merger, Goldenbanks Common Stock will cease to be publicly
traded and Norwest will cause the registration of Goldenbanks Common Stock under
the Act to be terminated.
Item 5. Interest in Securities of the Issuer
(a)-(b) As a result of the Option Agreement, Norwest may, pursuant to
Rule 13d-3(d)(1)(i) under the Exchange Act, be deemed to own beneficially
272,019 shares of Goldenbanks Common Stock, constituting approximately 16.6% of
the shares of Goldenbanks Common Stock that would have been issued and
outstanding if the Option had been exercised as of November 22,
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<PAGE>
1994. If Norwest were to exercise the Option, it would have sole power to vote
and, subject to the terms of the Option Agreement, sole power to direct the
disposition of, the shares of Goldenbanks Common Stock covered thereby.
To the best knowledge of Norwest, none of its directors or executive
officers beneficially owns any shares of Goldenbanks Common Stock.
(c) Except for the acquisition of the Option, neither Norwest nor, to the
best knowledge of Norwest, any of its directors or executive officers, has
effected any transaction in shares of Goldenbanks Common Stock during the past
60 days.
(d) Not applicable.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships With Respect
to Securities of the Issuer
The Reorganization Agreement provides that, upon consummation of the
Merger, each share of Goldenbanks Common Stock will be converted into 1.9876
shares of Norwest Common Stock.
The Reorganization Agreement provides, among other things, that
Goldenbanks may refuse to consummate the Merger if the Norwest Measurement Price
is less than $21.00. The "Norwest Measurement Price" is defined in the
Reorganization Agreement as the average of the closing prices of a share of
Norwest Common Stock as reported on the New York Stock Exchange during the
period of 15 trading days ending on the day immediately preceding the day on
which the stockholders of Goldenbanks meet to consider approval of the
Reorganization Agreement.
Consummation of the Merger is subject to certain other conditions,
including, but not limited to, (i) approval of the Reorganization Agreement by
the affirmative vote of the holders of at least a majority of the outstanding
shares of Goldenbanks Common Stock entitled to vote thereon, (ii) the receipt of
all requisite regulatory approvals without the imposition of any condition or
requirement relating to Goldenbanks or any of its subsidiaries that, in the good
faith judgment of Norwest, is unreasonably burdensome to Norwest, (iii) the
receipt of a letter from Norwest's and Goldenbanks's respective independent
accountants to the effect that the Merger qualifies for pooling-of-interests
accounting treatment, (iv) the receipt by Goldenbanks of a legal opinion to the
effect that the Merger will be treated for federal income tax purposes as a
reorganization within the meaning of Section 368 of the Internal Revenue Code of
1986, as amended, and (v) the receipt by Goldenbanks of an opinion of its
financial advisor to the effect that the consideration to be received by the
stockholders of Goldenbanks pursuant to the Merger is fair from a financial
point of view.
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<PAGE>
In the Reorganization Agreement, Goldenbanks agrees that it will, through
its Board of Directors, except to the extent legally required for the discharge
of the fiduciary duties of such board, recommend that its stockholders vote in
favor of approval of the Reorganization Agreement. Goldenbanks also agrees that
neither it nor any of its subsidiaries, nor any director, officer,
representative or agent thereof will, directly or indirectly, solicit, authorize
the solicitation of or, except to the extent legally required for the discharge
by Goldenbanks's Board of Directors of its fiduciary duties, enter into any
discussions with any third party (other than Norwest) concerning any proposal or
offer to acquire in any manner an equity interest in or substantial portion of
the assets of Goldenbanks or any of its subsidiaries, or to merge or otherwise
combine with Goldenbanks or any of its subsidiaries.
The Option gives Norwest the right to purchase up to 272,019 shares of
Goldenbanks Common Stock (the "Option Shares") at a price of $40.50 per share,
subject to adjustment under certain circumstances. Norwest may exercise the
Option at any time after the occurrence of a Purchase Event. For purposes of
the Option Agreement a "Purchase Event" occurs when either (i) any person (other
than Norwest or any of its subsidiaries) acquires 20% or more of the outstanding
shares of Goldenbanks Common Stock, provided, however, that this clause does not
apply to any stockholder of Goldenbanks who had, on November 22, 1994,
beneficial ownership of at least 20% of the outstanding shares of Goldenbanks
Common Stock unless such stockholder acquires beneficial ownership, or the right
to acquire beneficial ownership, of an additional 10% or more of the outstanding
shares of Goldenbanks Common Stock after November 22, 1994; or (ii) Goldenbanks
or any of its subsidiaries, without Norwest's prior written consent, shall have
entered into an agreement to engage in a (x) merger or consolidation involving
Goldenbanks or any of its subsidiaries, (y) a purchase, lease or other
acquisition of all or substantially all of the assets of Goldenbanks or any of
its subsidiaries or (z) a purchase or other acquisition, other than in
connection with an internal merger or consolidation, of securities representing
20% or more of the voting power of Goldenbanks or any of its subsidiaries; or
the Goldenbanks Board of Directors shall have recommended that the stockholders
of Goldenbanks approve any of the transactions described in clause (ii) above
with a third party.
-6-
<PAGE>
The Option Agreement will terminate at the earliest to occur of (i) the
time immediately prior to the effective time of the Merger, (ii) 6 months after
the first occurrence of a Purchase Event, (iii) 18 months after the termination
of the Reorganization Agreement following the occurrence of a Preliminary
Purchase Event, (iv) termination of the Reogranization Agreement prior to the
occurrence of a Purchase Event or a Preliminary Purchase Event (other than
termination by Norwest in certain circumstances) or (v) 12 months after the
termination of the Reorganization Agreement by Norwest in certain circumstances.
"Preliminary Purchase Event" means certain events involving Goldenbanks,
occurring after November 22, 1994, that are inconsistent with Goldenbanks's
intent to consummate the Merger or actions by third parties evidencing an intent
to acquire control of Goldenbanks: (i) Goldenbanks or any of its subsidiaries,
without Norwest's prior written consent, shall have entered into an agreement to
engage in an Acquisition Transaction with a party other than Norwest or any of
its subsidiaries or the Goldenbanks Board of Directors shall have recommended
that the stockholders of Goldenbanks approve an Acquisition Transaction with a
third party, (ii) any party (other than Norwest or any of its subsidiaries, or a
stockholder of Goldenbanks who had, on November 22, 1994, beneficial ownership
of a least 9.9% of the outstanding shares of Goldenbanks Common Stock unless
such stockholder acquires beneficial ownership, or the right thereto, of an
additional 10% or more of the outstanding shares of Goldenbanks Common Stock
after November 22, 1994) shall have acquired beneficial ownership, or the right
thereto, of 10% or more of the outstanding shares of Goldenbanks Common Stock;
(iii) any party other than Norwest or any of its subsidiaries shall have made
publicly a proposal to Goldenbanks or its stockholders to engage in an
Acquisition Transaction or shall have filed a registration statement under the
Securities Act of 1933 (the "Securities Act") relating to a tender officer or
exchange offer that could result in such party's owning or controlling 10% or
more of the then outstanding shares of Goldenbanks Common Stock; (iv) after a
proposal is made by a third party to Goldenbanks or its stockholders to engage
in an Acquisition Transaction, (x) Goldenbanks shall have breached any of its
covenants or obligations in the Reorganization Agreement or (y) the stockholders
of Goldenbanks shall not have approved the Reorganization Agreement, the
stockholder meeting for the purpose of voting on such approval shall not have
been held or shall have been canceled prior to termination of the Reorganization
Agreement, or the Goldenbanks Board of Directors shall have withdrawn or
modified in a manner adverse to Norwest its recommendation to the stockholders
of Goldenbanks; (v) any party other than Norwest or any of its subsidiaries,
without Norwest's prior written approval, shall have filed an application with
any governmental authority or regulatory or administrative body for approval to
engage in an Acquisition Transaction; or (vi) the Goldenbanks Board of Directors
does not recommend that the stockholders of Goldenbanks approve the
Reorganization Agreement, unless such failure shall be due to the receipt by
such Board of an unfavorable opinion from Goldenbanks's financial advisor and
such unfavorable opinion was not given in anticipation of a Preliminary Purchase
Event. "Acquisition Transaction" means (x) merger or consolidation involving
Goldenbanks or any of its subsidiaries, (y) a purchase, lease or other
acquisition of all or substantially all of the assets of Goldenbanks or any of
its subsidiaries or (z) a purchase or other acquisition, other than in
connection with an internal merger or consolidation, of securities representing
10% or more of the voting power of Goldenbanks or any of its subsidiaries.
Under the Bank Holding Company Act of 1956, Norwest may not acquire 5% or
more of the outstanding shares of Goldenbanks without the prior approval of the
Board of Governors of the Federal Reserve System. Certain other regulatory
approvals may also be required before any acquisition under the Option Agreement
could be completed.
The Option may not be assigned by Norwest or by Goldenbanks without the
express written consent of the other party to the Option Agreement, except that
Norwest may assign its rights under the Option Agreement in whole or in part
after the occurrence of certain events and, in certain cases, after Norwest
gives Goldenbanks an offer to purchase the rights on the same terms and price
which Norwest proposes to transfer such rights to a third party. After a
Purchase Event, Norwest (on behalf of itself or any subsequent holder) may
require Goldenbanks to prepare and keep current for up to 180 days a
registration statement under the Securities Act in form and substance
appropriate and customary under the circumstances covering the Option Shares and
to use its best efforts to cause such registration statement to remain current
for up to 180 days in order to facilitate the disposition of the Option Shares.
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<PAGE>
Upon such demand, Goldenbanks must effect such registration statement promptly,
subject to certain exceptions. Norwest is entitled to two such registration
statements. Upon the occurrence of a Purchase Event, subject to certain
exceptions, and prior to termination of the Option, at the request of Norwest,
Goldenbanks will be obligated to repurchase the Option and any Option Shares
theretofore purchased pursuant to the Option at prices determined as set forth
in the Option Agreement, which may include the reimbursement by Goldenbanks of
up to $500,000 in fees and expenses incurred by Norwest in connection with the
Merger. In the event that Norwest exercises the repurchase rights described
above, Goldenbanks will thereafter be required to pay the required amount or the
portion thereof that Goldenbanks is not then prohibited from so paying under
applicable law and regulation or as a consequence of administrative policy.
In the event that prior to termination of the Option, Goldenbanks enters
into an agreement (i) to consolidate with or merge into any party, other than
Norwest or any of its subsidiaries, and is not the continuing or surviving
corporation of such consolidation or merger, (ii) to permit any party, other
than Norwest or any of its subsidiaries, to merge into Goldenbanks and
Goldenbanks is the surviving corporation, but, in connection with such merger,
the then outstanding of Goldenbanks Common Stock are changed into or exchanged
for stock or other securities of any other party or cash or any other property,
or the then outstanding shares of Goldenbanks Common Stock will after such
merger represent less than 50% of the outstanding shares and share equivalents
of the merged company; or (iii) to sell or otherwise transfer all or
substantially all of its or any subsidiary's assets to any party, other than
Norwest or any of its subsidiaries, then the agreement governing such
transaction must make proper provision so that the Option, upon consummation of
such transaction, will be converted into, or exchanged for, an option (a
"Substitute Option"), at the election of Norwest, of either (x) the acquiring
corporation or (y) any party that controls the acquiring corporation. The
Substitute Option will be exercisable for shares of the Substitute Option
issuer's common stock in such number and at such exercise price as determined by
the Option Agreement and will otherwise have the same terms as the Option to the
extent permitted by law.
To the best of Goldenbanks's and Norwest's knowledge, no Preliminary
Purchase Event or Purchase Event has occurred as of the date hereof.
Either Goldenbanks or Norwest may terminate the Reorganization Agreement
under certain circumstances. If no Preliminary Purchase Event or Purchase Event
occurs prior to such termination, the Option Agreement will terminate at such
time, unless Norwest shall have terminated the Reorganization Agreement pursuant
to paragraph 9(a)(ii) thereof due to Goldenbanks's failure to perform or
observe in all material respects its covenants and obligations. If a
Preliminary Purchase Event or Purchase Event does occur prior to the
termination of the Option Agreement or if Norwest terminates the Reorganization
Agreement pursuant to paragraph 9(a)(ii)
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<PAGE>
thereof due to Goldenbanks's failure to perform or observe in all material
respects its covenants and obligations, then Norwest will be entitled to
exercise its rights under the Option Agreement in accordance with its terms.
The Option Agreement is intended to increase the likelihood that the
Merger will be consummated in accordance with the terms of the Reorganization
Agreement and may discourage persons from proposing a competing offer to acquire
Goldenbanks, even if such offer involves a higher price per share of Goldenbanks
Common Stock than the consideration contemplated by the Reorganization
Agreement. The existence of the Option could significantly increase the cost to
a potential acquiror of acquiring Goldenbanks compared to its cost had
Goldenbanks not entered into the Option Agreement. Goldenbanks believes that
the exercise of the Option would likely prohibit any acquiror from accounting
for an acquisition of, or merger with, Goldenbanks using the pooling-of-
interests accounting method for a period of up to two years. This could
discourage or preclude an acquisition of Goldenbanks by other organizations.
The preceding summary of certain provisions of the Reorganization
Agreement and the Option Agreement is not intended to be complete and is
qualified in its entirety by reference to the full text of such agreements,
copies of which are filed herewith as Exhibits 1 and 2, respectively, and are
incorporated herein by reference.
Except as set forth herein, neither Norwest nor, to the best knowledge of
Norwest, any of its directors or executive officers, has any contracts,
arrangements, understandings or relationships (legal or otherwise) with any
person with respect to any securities of Goldenbanks, including, but not limited
to, transfer or voting of any securities of Goldenbanks, finder's fees, joint
ventures, loan or option arrangements, puts or calls, guarantees of profits,
division of profits or loss, or the giving or withholding of proxies.
Item 7. Material to be Filed as Exhibits
(1) Agreement and Plan of Reorganization dated as of November 22,
1994, between Goldenbanks of Colorado, Inc. and Norwest Corporation.
(2) Stock Option Agreement, dated as of November 22, 1994, between
Norwest Corporation and Goldenbanks of Colorado, Inc.
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<PAGE>
SIGNATURE
---------
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
NORWEST CORPORATION
By: /s/ Laurel A. Holschuh
----------------------
Laurel A. Holschuh
Senior Vice President and Secretary
Dated: December 2, 1994
ATTENTION: INTENTIONAL MISSTATEMENTS OR OMISSIONS OF FACT CONSTITUTE
FEDERAL CRIMINAL VIOLATIONS (SEE 18 U.S.C. 1001).
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<PAGE>
SCHEDULE I
DIRECTORS OF NORWEST CORPORATION
The names, business addresses and present principal occupations or
employments of the directors of Norwest Corporation are set forth below. All
directors listed below are citizens of the United States.
David A. Christensen; 205 East Sixth Street, Sioux Falls, South Dakota
57117; President and Chief Executive Officer; Raven Industries, Inc.;
diversified manufacturer of plastics, electronics and special-fabric products.
Gerald J. Ford, 200 Crescent Court, Suite 1350, Dallas, Texas 75201;
Chairman and Chief Executive Officer of First Madison Bank, FSB
Pierson M. Grieve; 370 Wabasha Street, St. Paul, Minnesota 55102;
Chairman and Chief Executive Officer; Ecolab Inc.; developer and marketer of
cleaning, sanitizing and maintenance products and services.
Charles M. Harper; 1301 Avenue of the Americas, New York, New York
10019; Chairman of the Board and Chief Executive Officer; RJR Nabisco, Inc.;
manufacturer and marketer of consumer packaged goods.
N. Berne Hart; 2552 East Alameda Avenue, No. 99, Denver, Colorado
80209; Retired Chairman and Director; Norwest Colorado, Inc.; banking.
William A. Hodder; 1400 West 94th Street, Minneapolis, Minnesota
55431; Chairman, President and Chief Executive Officer; Donaldson Company, Inc.;
manufacturer of filtration and emission control products.
George C. Howe; 220 Eighth Street South, Fargo, North Dakota 58103;
President and Managing Partner; Howe Seed Farms; farming.
Lloyd P. Johnson; Norwest Center, Sixth and Marquette, Minneapolis,
Minnesota 55479; Chairman of the Board; Norwest Corporation; banking.
Reatha Clark King; Number One General Mills Boulevard, Minneapolis,
Minnesota 55426; President and Executive Director; General Mills Foundation;
charitable foundation for General Mills, Inc.
Richard M. Kovacevich; Norwest Center, Sixth and Marquette,
Minneapolis, Minnesota 55479; President and Chief Executive Officer; Norwest
Corporation; banking.
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<PAGE>
Richard S. Levitt; 3141 Dean Court, Suite 1201, Minneapolis, Minnesota
55416; Chairman of the Board; Nellis Corporation, Rockville, Maryland; private
capital management.
Richard D. McCormick; 7800 East Orchard Road, Suite 200, Englewood,
Colorado 80111; Chairman and Chief Executive Officer; U S WEST, Inc.;
communications.
Cynthia H. Milligan; 6200 North 56th Street, Lincoln, Nebraska 68504;
President; Cynthia H. Milligan & Associates; consultant to financial
institutions.
John E. Pearson; 4900 IDS Center, 80 South Eighth Street, Minneapolis,
Minnesota 55402; Retired Chairman; The NWNL Companies, Inc.; life and health
insurance.
Ian M. Rolland, 1300 South Clinton Street, Fort Wayne, Indiana 46801;
Chairman and Chief Executive Officer, Lincoln National Corporation; insurance.
Stephen E. Watson; 700 On The Mall, 9th Floor, Minneapolis, Minnesota
55402; President; Dayton Hudson Corporation; general merchandise company.
Michael W. Wright; 11840 Valley View Road, Eden Prairie, Minnesota
55344; Chairman, President and Chief Executive Officer; SUPERVALU INC.; food
distribution and retailing.
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<PAGE>
SCHEDULE II
EXECUTIVE OFFICERS OF NORWEST CORPORATION
The names and present principal occupations or employments of the
executive officers of Norwest Corporation are set forth below. Each executive
officer's business address is Norwest Corporation, Norwest Center, Sixth Street
and Marquette Avenue, Minneapolis, Minnesota 55479. Each occupation set forth
opposite an individual's name refers to Norwest Corporation. All officers
listed below are citizens of the United States.
<TABLE>
<CAPTION>
Name Present Principal Occupation or Employment
- ---- ------------------------------------------
<S> <C>
Lloyd P. Johnson Chairman of the Board
Richard M. Kovacevich President and Chief Executive Officer
Leslie S. Biller Executive Vice President (South Central Community
Banking)
James R. Campbell Executive Vice President (Twin Cities Banking)
Kenneth R. Murray Executive Vice President (Western Community
Banking)
Brian R. Phillips Executive Vice President (Technical Services)
William H. Queenan Executive Vice President (Chief Credit Officer)
Daniel A. Saklad Executive Vice President (North Central Community
Banking)
Stanley S. Stroup Executive Vice President and General Counsel
John T. Thornton Executive Vice President and Chief Financial
Officer
Thomas E. Emerson Senior Vice President, Chief Auditor and Chief
Examiner
John E. Ganoe Senior Vice President (Strategic Planning and
Acquisitions)
Michael A. Graf Senior Vice President and Controller
Stephen W. Hansen Senior Vice President (Human Resources)
Laurel A. Holschuh Senior Vice President and Secretary
Charles D. White Senior Vice President and Treasurer
</TABLE>
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<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Form of
Number Description Filing
- ------- ----------- -------
<S> <C> <C>
1 Agreement and Plan of Reorganization Electronic
dated as of November 22, 1994, Transmission
between Goldenbanks of Colorado, Inc.
and Norwest Corporation.
2 Stock Option Agreement, dated as Electronic
of November 22, 1994, between Transmission
Norwest Corporation and
Goldenbanks of Colorado, Inc.
</TABLE>
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<PAGE>
EXHIBIT 1
AGREEMENT
AND
PLAN OF REORGANIZATION
AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement") entered into as
of the 22nd day of November, 1994, by and between GOLDENBANKS OF COLORADO, INC.
("Goldenbanks"), a Delaware corporation, and NORWEST CORPORATION ("Norwest"), a
Delaware corporation.
WHEREAS, the parties hereto desire to effect a reorganization whereby
a wholly-owned subsidiary of Norwest will merge with and into Goldenbanks (the
"Merger") pursuant to an agreement and plan of merger (the "Merger Agreement")
in substantially the form attached hereto as Exhibit A, which provides, among
other things, for the conversion and exchange of the shares of Common Stock of
Goldenbanks of the par value of $0.05 per share ("Goldenbanks Common Stock")
outstanding immediately prior to the time the Merger becomes effective in
accordance with the provisions of the Merger Agreement into shares of voting
Common Stock of Norwest of the par value of $1-2/3 per share ("Norwest Common
Stock"),
NOW, THEREFORE, to effect such reorganization and in consideration of
the premises and the mutual covenants and agreements contained herein, the
parties hereto do hereby represent, warrant, covenant and agree as follows:
1. BASIC PLAN OF REORGANIZATION
(a) Merger. Subject to the terms and conditions contained herein, a
wholly-owned subsidiary of Norwest (the "Merger Co.") will be merged by
statutory merger with and into Goldenbanks pursuant to the Merger Agreement,
with Goldenbanks as the surviving corporation, in which merger each share of
Goldenbanks Common Stock outstanding immediately prior to the Effective Time of
the Merger (as defined below)(other than shares as to which statutory
dissenters' appraisal rights have been exercised) will be converted into and
exchanged for 1.9876 shares of Norwest Common Stock.
(b) Norwest Common Stock Adjustments. If, between the date hereof
and the Effective Time of the Merger, shares of Norwest Common Stock shall be
changed into a different number of shares or a different class of shares by
reason of any reclassification, recapitalization, split-up, combination,
exchange of shares or readjustment, or if a stock dividend thereon shall be
declared with a record date within such period (a "Common Stock Adjustment"),
then (i) the number of shares of Norwest Common Stock into which a share of
Goldenbanks Common Stock shall be converted pursuant to
<PAGE>
subparagraph (a), above, will be appropriately and proportionately adjusted so
that the number of such shares of Norwest Common Stock into which a share of
Goldenbanks Common Stock shall be converted will equal the number of shares of
Norwest Common Stock which the holder of a share of Goldenbanks Common Stock
would have received pursuant to such Common Stock Adjustment had the record date
therefor been immediately following the Effective Time of the Merger and (ii) if
a Norwest Common Stock Adjustment occurs between the date hereof and any date
that the closing price of a share of Norwest Common Stock is used for purposes
of this Agreement or the Merger Agreement, the closing price of a share of
Norwest Common Stock for such purposes shall be the sum of the closing prices on
the date of each such determination of the number of shares of Norwest Common
Stock and/or other securities, if any, (in each case as reported on the
consolidated tape of the New York Stock Exchange on such date) issued with
respect to one share of Norwest Common Stock as a result of the Norwest Common
Stock Adjustment.
(c) Fractional Shares. No fractional shares of Norwest Common Stock
and no certificates or scrip certificates therefor shall be issued to represent
any such fractional interest, and any holder thereof shall be paid an amount of
cash equal to the product obtained by multiplying the fractional share interest
to which such holder is entitled by the average of the closing prices of a share
of Norwest Common Stock as reported by the consolidated tape of the New York
Stock Exchange for each of the five (5) trading days ending on the day
immediately preceding the meeting of stockholders required by paragraph 4(c) of
this Agreement.
(d) Mechanics of Closing Merger. Subject to the terms and conditions
set forth herein, the Merger Agreement shall be executed and a Certificate of
Merger shall be filed with the Secretary of State of the State of Delaware
within five (5) business days following the satisfaction or waiver of all
conditions precedent set forth in Sections 6 and 7 of this Agreement or on such
other date as may be agreed to by the parties (the "Closing Date"). Each of the
parties agrees to use its best efforts to cause the Merger to be completed as
soon as practicable after the receipt of final regulatory approval of the Merger
and the expiration of all required waiting periods. The time that the filing
referred to in the first sentence of this paragraph is made is herein referred
to as the "Time of Filing". The day on which such filing is made and accepted
is herein referred to as the "Effective Date of the Merger". The "Effective
Time of the Merger" shall be 11:59 p.m. Denver, Colorado time on the Effective
Date of the Merger. At the Effective Time of the Merger on the Effective Date
of the Merger, the separate existence of Merger Co. shall cease and Merger Co.
will be merged with and into Goldenbanks pursuant to the Merger Agreement.
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The closing of the transactions contemplated by this Agreement and the
Merger Agreement (the "Closing") shall take place on the Closing Date at the
offices of Norwest, Norwest Center, Sixth and Marquette, Minneapolis, Minnesota.
2. REPRESENTATIONS AND WARRANTIES OF GOLDENBANKS. Goldenbanks
represents and warrants to Norwest as follows:
(a) Organization and Authority. Goldenbanks is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware, is duly qualified to do business and is in good standing in all
jurisdictions where its ownership or leasing of property or the conduct of its
business requires it to be so qualified and failure to be so qualified would
have a material adverse effect on the business, financial condition or results
of operations of Goldenbanks and the Goldenbanks Subsidiaries taken as a whole
(a "Material Adverse Effect") and has corporate power and authority to own its
properties and assets and to carry on its business as it is now being conducted.
Goldenbanks is registered as a bank holding company with the Federal Reserve
Board under the Bank Holding Company Act of 1956, as amended (the "BHC Act").
Goldenbanks has furnished Norwest true and correct copies of its articles of
incorporation and by-laws, as amended.
(b) Goldenbanks' Subsidiaries. Schedule 2(b) sets forth a complete
and correct list of all of Goldenbanks' subsidiaries as of the date hereof
(individually a "Goldenbanks Subsidiary" and collectively the "Goldenbanks
Subsidiaries"), all shares of the outstanding capital stock of each of which,
except as set forth on Schedule 2(b), are owned directly or indirectly by
Goldenbanks. No equity security of any Goldenbanks Subsidiary is or may be
required to be issued by reason of any option, warrant, scrip, preemptive right,
right to subscribe to, call or commitment of any character whatsoever relating
to, or security or right convertible into, shares of any capital stock of such
subsidiary, and there are no contracts, commitments, understandings or
arrangements by which any Goldenbanks Subsidiary is bound to issue additional
shares of its capital stock, or any option, warrant or right to purchase or
acquire any additional shares of its capital stock. Subject to 12 U.S.C. (S) 55
(1982) and the Delaware General Corporation Law, all of such shares so owned by
Goldenbanks are fully paid and nonassessable and, except as set forth in
Schedule 2(b), are owned by it free and clear of any lien, claim, charge,
option, encumbrance or agreement with respect thereto. Each Goldenbanks
Subsidiary is a corporation or national banking association duly organized,
validly existing, duly qualified to do business and in good standing under the
laws of its jurisdiction of incorporation, and has corporate power and authority
to own or lease its properties and assets and to carry on its business as it is
now being conducted. Except as set forth on Schedule 2(b), Goldenbanks does not
own beneficially, directly or indirectly, more than 5% of any class of equity
securities or similar interests of any corporation,
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bank, business trust, association or similar organization, and is not, directly
or indirectly, a partner in any partnership or party to any joint venture.
(c) Capitalization. The authorized capital stock of Goldenbanks
consists of 300,000 shares of preferred stock, $10.00 par value, of which no
shares are outstanding and 3,000,000 shares of common stock, $0.05 par value, of
which as of the close of business on June 30, 1994, 1,366,932 shares were
outstanding and no shares were held in the treasury. The maximum number of
shares of Goldenbanks Common Stock (assuming for this purpose that phantom
shares and other share-equivalents constitute Goldenbanks Common Stock) that
would be outstanding as of the Effective Date of the Merger if all options,
warrants, conversion rights and other rights with respect thereto, except the
option to purchase Goldenbanks Common Stock granted pursuant to the Stock Option
Agreement dated the date hereof between Goldenbanks and Norwest (the "Stock
Option Agreement"), were exercised is 1,366,932. All of the outstanding shares
of capital stock of Goldenbanks have been duly and validly authorized and issued
and are fully paid and nonassessable. Except as set forth in Schedule 2(c) and
except for the option granted pursuant to the Stock Option Agreement, there are
no outstanding subscriptions, contracts, conversion privileges, options,
warrants, calls, preemptive rights or other rights obligating Goldenbanks or any
Goldenbanks Subsidiary to issue, sell or otherwise dispose of, or to purchase,
redeem or otherwise acquire, any shares of capital stock of Goldenbanks or any
Goldenbanks Subsidiary. Since June 30, 1994 no shares of Goldenbanks capital
stock have been purchased, redeemed or otherwise acquired, directly or
indirectly, by Goldenbanks or any Goldenbanks Subsidiary and, except as set
forth in Schedule 2(c) and except as permitted by this Agreement, no dividends
or other distributions have been declared, set aside, made or paid to the
stockholders of Goldenbanks.
(d) Authorization. Goldenbanks has the corporate power and authority
to enter into this Agreement and the Merger Agreement and, subject to any
required approvals of its stockholders, to carry out its obligations hereunder
and thereunder. The execution, delivery and performance of this Agreement and
the Merger Agreement by Goldenbanks and the consummation of the transactions
contemplated hereby and thereby have been duly authorized by the Board of
Directors of Goldenbanks. Subject to such approvals of stockholders and of
government agencies and other governing boards having regulatory authority over
Goldenbanks as may be required by statute or regulation, this Agreement and the
Merger Agreement are valid and binding obligations of Goldenbanks enforceable
against Goldenbanks in accordance with their respective terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the rights of creditors and
contracting parties generally and except as enforceability may be subject to
general principles of equity.
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Except as set forth on Schedule 2(d), neither the execution, delivery
and performance by Goldenbanks of this Agreement or the Merger Agreement, nor
the consummation of the transactions contemplated hereby and thereby, nor
compliance by Goldenbanks with any of the provisions hereof or thereof, will (i)
violate, conflict with, or result in a breach of any provision of, or constitute
a default (or an event which, with notice or lapse of time or both, would
constitute a default) under, or result in the termination of, or accelerate the
performance required by, or result in a right of termination or acceleration of,
or result in the creation of, any lien, security interest, charge or encumbrance
upon any of the properties or assets of Goldenbanks or any Goldenbanks
Subsidiary under any of the terms, conditions or provisions of (x) its articles
of incorporation or by-laws or (y) any material note, bond, mortgage, indenture,
deed of trust, license, lease, agreement or other instrument or obligation to
which Goldenbanks or any Goldenbanks Subsidiary is a party or by which it may be
bound, or to which Goldenbanks or any Goldenbanks Subsidiary or any of the
properties or assets of Goldenbanks or any Goldenbanks Subsidiary may be
subject, or (ii) subject to compliance with the statutes and regulations
referred to in the next paragraph, to the best knowledge of Goldenbanks, violate
any judgment, ruling, order, writ, injunction, decree, statute, rule or
regulation applicable to Goldenbanks or any Goldenbanks Subsidiary or any of
their respective material properties or assets.
Other than in connection or in compliance with the provisions of the
Securities Act of 1933 and the rules and regulations thereunder (the "Securities
Act"), the Securities Exchange Act of 1934 and the rules and regulations
thereunder (the "Exchange Act"), the securities or blue sky laws of the various
states or filings, consents, reviews, authorizations, approvals or exemptions
required under the BHC Act or the Hart-Scott-Rodino Antitrust Improvements Act
of 1976 ("HSR Act"), and filings required to effect the Merger under Delaware
law, no notice to, filing with, exemption or review by, or authorization,
consent or approval of, any public body or authority is necessary for the
consummation by Goldenbanks of the transactions contemplated by this Agreement
and the Merger Agreement.
(e) Goldenbanks Financial Statements. The consolidated balance
sheets of Goldenbanks and Goldenbanks' Subsidiaries as of June 30, 1994 and 1993
and related consolidated statements of income, stockholders' equity and cash
flows for the three years ended June 30, 1994, together with the notes thereto,
certified by Deloitte & Touche, LLP and included in Goldenbanks' Annual Report
on Form 10-KSB for the fiscal year ended June 30, 1994 (the "Goldenbanks 10-
KSB") as filed with the Securities and Exchange Commission (the
"SEC")(collectively, the "Goldenbanks Financial Statements"), have been prepared
in accordance with generally accepted accounting principles applied on a
consistent
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basis and present fairly the consolidated financial position of Goldenbanks and
Goldenbanks' Subsidiaries at the dates and the consolidated results of
operations and cash flows of Goldenbanks and Goldenbanks' Subsidiaries for the
periods stated therein.
(f) Reports. Since June 30, 1988, Goldenbanks and each Goldenbanks
Subsidiary has filed all reports, registrations and statements, together with
any required amendments thereto, that it was required to file with (i) the SEC,
including, but not limited to, Forms 10-KSB, Forms 10-QSB and proxy statements,
(ii) the Federal Reserve Board, (iii) the Federal Deposit Insurance Corporation
(the "FDIC"), (iv) the United States Comptroller of the Currency (the
"Comptroller") and (v) any applicable state securities or banking authorities.
All such reports and statements filed with any such regulatory body or authority
are collectively referred to herein as the "Goldenbanks Reports". As of their
respective dates, the Goldenbanks Reports complied in all material respects with
all the rules and regulations promulgated by the SEC, the Federal Reserve Board,
the FDIC, the Comptroller and applicable state securities or banking
authorities, as the case may be, and as of their respective dates, the
Goldenbanks Reports filed with the SEC did not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading. Copies of all the Goldenbanks
Reports have been made available to Norwest by Goldenbanks.
(g) Properties and Leases. Except as set forth in Schedule 2(g),
except as may be reflected in the Goldenbanks Financial Statements and except
for any lien for current taxes not yet delinquent, Goldenbanks and each
Goldenbanks Subsidiary have good title free and clear of any material liens,
claims, charges, options, encumbrances or similar restrictions to all the real
and personal property reflected in Goldenbanks' consolidated balance sheet as of
June 30, 1994 included in Goldenbanks' Annual Report on Form 10-KSB for the
period then ended, and all real and personal property acquired since such date,
except such real and personal property as has been disposed of in the ordinary
course of business. All leases of real property and all other leases material
to Goldenbanks or any Goldenbanks Subsidiary pursuant to which Goldenbanks or
such Goldenbanks Subsidiary, as lessee, leases real or personal property, which
leases are described on Schedule 2(g), are valid and effective in accordance
with their respective terms, and there is not, under any such lease, any
material existing default by Goldenbanks or such Goldenbanks Subsidiary or any
event which, with notice or lapse of time or both, would constitute such a
material default. Substantially all Goldenbanks' and each Goldenbanks
Subsidiary's buildings and equipment in regular use have been well maintained
and are in good and serviceable condition, reasonable wear and tear excepted.
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(h) Taxes. Each of Goldenbanks and the Goldenbanks Subsidiaries has
filed all federal, state, county, local and foreign tax returns, including
information returns, required to be filed by it, and paid or made adequate
provision for the payment of all taxes owed by it, including those with respect
to income, withholding, social security, unemployment, workers compensation,
franchise, ad valorem, premium, excise and sales taxes, and no taxes shown on
such returns to be owed by it or assessments received by it are delinquent. The
federal income tax returns of Goldenbanks and the Goldenbanks Subsidiaries for
the fiscal year ended June 30, 1988, and for all fiscal years prior thereto, are
for the purposes of routine audit by the Internal Revenue Service closed because
of the statute of limitations, and no claims for additional taxes for such
fiscal years are pending. Except only as set forth on Schedule 2(h), (i)
neither Goldenbanks nor any Goldenbanks Subsidiary is a party to any pending
action or proceeding, nor is any such action or proceeding threatened by any
governmental authority, for the assessment or collection of taxes, interest,
penalties, assessments or deficiencies and (ii) no issue has been raised by any
federal, state, local or foreign taxing authority in connection with an audit or
examination of the tax returns, business or properties of Goldenbanks or any
Goldenbanks Subsidiary which has not been settled, resolved and fully satisfied.
Each of Goldenbanks and the Goldenbanks Subsidiaries has paid all taxes owed or
which it is required to withhold from amounts owing to employees, creditors or
other third parties. The consolidated balance sheet as of June 30, 1994,
referred to in paragraph 2(e) hereof, includes adequate provision for all
accrued but unpaid federal, state, county, local and foreign taxes, interest,
penalties, assessments or deficiencies of Goldenbanks and the Goldenbanks
Subsidiaries with respect to all periods through the date thereof.
(i) Absence of Certain Changes. Since June 30, 1994 there has been
no change in the business, financial condition or results of operations of
Goldenbanks or any Goldenbanks Subsidiary, which has had, or may reasonably be
expected to have, a Material Adverse Effect.
(j) Commitments and Contracts. Except as set forth on Schedule 2(j),
neither Goldenbanks nor any Goldenbanks Subsidiary is a party or subject to any
of the following (whether written or oral, express or implied):
(i) any employment contract or understanding (including any
understandings or obligations with respect to severance or termination pay
liabilities or fringe benefits) with any present or former officer,
director, employee or consultant (other than those which are terminable at
will by Goldenbanks or such Goldenbanks Subsidiary);
(ii) any plan, contract or understanding providing for any bonus,
pension, option, deferred compensation,
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retirement payment, profit sharing or similar arrangement with respect to
any present or former officer, director, employee or consultant;
(iii) any labor contract or agreement with any labor union;
(iv) any contract not made in the ordinary course of business
containing covenants which limit the ability of Goldenbanks or any
Goldenbanks Subsidiary to compete in any line of business or with any
person or which involve any restriction of the geographical area in which,
or method by which, Goldenbanks or any Goldenbanks Subsidiary may carry on
its business (other than as may be required by law or applicable regulatory
authorities);
(v) any other contract or agreement which is a "material contract"
within the meaning of Item 601(b)(10) of Regulation S-B; or
(vi) any lease with annual rental payments aggregating $10,000 or
more.
(k) Litigation and Other Proceedings. Goldenbanks has furnished Norwest
copies of (i) all attorney responses to the request of the independent auditors
for Goldenbanks with respect to loss contingencies as of June 30, 1994 in
connection with the Goldenbanks financial statements included in the Goldenbanks
10-KSB, and (ii) a written list of legal and regulatory proceedings filed
against Goldenbanks or any Goldenbanks Subsidiary since said date. Neither
Goldenbanks nor any Goldenbanks Subsidiary is a party to any pending or, to the
best knowledge of Goldenbanks, threatened, claim, action, suit, investigation or
proceeding, or is subject to any order, judgment or decree, except for matters
which, in the aggregate, will not have, or cannot reasonably be expected to
have, a Material Adverse Effect.
(l) Insurance. Goldenbanks and each Goldenbanks Subsidiary is presently
insured, and during each of the past five calendar years (or during such lesser
period of time as Goldenbanks has owned such Goldenbanks Subsidiary) has been
insured, for reasonable amounts with financially sound and reputable insurance
companies against such risks as companies engaged in a similar business would,
in accordance with good business practice, customarily be insured and has
maintained all insurance required by applicable law and regulation.
(m) Compliance with Laws. Goldenbanks and each Goldenbanks Subsidiary has
all permits, licenses, authorizations, orders and approvals of, and has made all
filings, applications and registrations with, federal, state, local or foreign
governmental or regulatory bodies that are required in order to permit it to own
or lease its properties and assets and to carry on its business as presently
conducted
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and that are material to the business of Goldenbanks or such Goldenbanks
Subsidiary; all such permits, licenses, certificates of authority, orders and
approvals are in full force and effect and, to the best knowledge of
Goldenbanks, no suspension or cancellation of any of them is threatened; and all
such filings, applications and registrations are current. The conduct by
Goldenbanks and each Goldenbanks Subsidiary of its business and the condition
and use of its properties does not violate or infringe, in any respect material
to any such business, any applicable domestic (federal, state or local) or
foreign law, statute, ordinance, license or regulation. Neither Goldenbanks nor
any Goldenbanks Subsidiary is in default under any order, license, regulation or
demand of any federal, state, municipal or other governmental agency or with
respect to any order, writ, injunction or decree of any court. Except for
statutory or regulatory restrictions of general application and except as set
forth on Schedule 2(m), no federal, state, municipal or other governmental
authority has placed any restriction on the business or properties of
Goldenbanks or any Goldenbanks Subsidiary which reasonably could be expected to
have a Material Adverse Effect.
(n) Labor. No work stoppage involving Goldenbanks or any Goldenbanks
Subsidiary is pending or, to the best knowledge of Goldenbanks, threatened.
Neither Goldenbanks nor any Goldenbanks Subsidiary is involved in, or threatened
with or affected by, any labor dispute, arbitration, lawsuit or administrative
proceeding which could materially and adversely affect the business of
Goldenbanks or such Goldenbanks Subsidiary. Employees of Goldenbanks and the
Goldenbanks Subsidiaries are not represented by any labor union nor are any
collective bargaining agreements otherwise in effect with respect to such
employees.
(o) Material Interests of Certain Persons. Except as set forth on Schedule
2(o), to the best knowledge of Goldenbanks no officer or director of Goldenbanks
or any Goldenbanks Subsidiary, or any "associate" (as such term is defined in
Rule l4a-1 under the Exchange Act) of any such officer or director, has any
interest in any material contract or property (real or personal), tangible or
intangible, used in or pertaining to the business of Goldenbanks or any
Goldenbanks Subsidiary.
Schedule 2(o) sets forth a correct and complete list of any loan from
Goldenbanks or any Goldenbanks Subsidiary to any present officer, director,
employee or any associate or related interest of any such person which was
required under Regulation O of the Federal Reserve Board to be approved by or
reported to Goldenbanks' or such Goldenbanks Subsidiary's Board of Directors.
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(p) Goldenbanks Benefit Plans.
(i) The only "employee benefit plans" within the meaning of Section
3(3) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), for which Goldenbanks or any Goldenbanks Subsidiary acts as the
plan sponsor as defined in ERISA Section 3(16)(B), and with respect to
which any liability under ERISA or otherwise exists or may be incurred by
Goldenbanks or any Goldenbanks Subsidiary are those set forth on Schedule
2(p) (the "Plans"). No Plan is a "multi-employer plan" within the meaning
of Section 3(37) of ERISA.
(ii) Each Plan is and has been in all material respects operated and
administered in accordance with its provisions and applicable law. Except
as set forth on Schedule 2(p), Goldenbanks or the Goldenbanks subsidiaries
have received favorable determination letters from the Internal Revenue
Service under the provisions of the Tax Equity and Fiscal Responsibility
Act ("TEFRA"), the Deficit Reduction Act ("DEFRA") and the Retirement
Equity Act ("REA") for each of the Plans to which the qualification
requirements of Section 401(a) of the Internal Revenue Code of 1986, as
amended (the "Code"), apply. Goldenbanks knows of no reason that any Plan
which is subject to the qualification provisions of Section 401(a) of the
Code is not "qualified" within the meaning of Section 401(a) of the Code
and that each related trust is not exempt from taxation under Section
501(a) of the Code, except that any such Plan may not have been amended to
comply with the Tax Reform Act of 1986 (the "TRA") and other recent
legislation and regulations, although each such Plan is within the remedial
amendment period during which retroactive amendment may be made.
(iii) The present value of all benefits vested and all benefits
accrued under each Plan which is subject to Title IV of ERISA did not, in
each case, as determined for purposes of reporting on Schedule B to the
Annual Report on Form 5500 of each such Plan as of the end of the most
recent Plan year exceed the value of the assets of the Plan allocable to
such vested or accrued benefits.
(iv) Except as disclosed in Schedule 2(p), and to the best knowledge
of Goldenbanks, no Plan or any trust created thereunder, nor any trustee,
fiduciary or administrator thereof, has engaged in a "prohibited
transaction", as such term is defined in Section 4975 of the Code or
Section 406 of ERISA or violated any of the fiduciary standards under Part
4 of Title I of ERISA which could subject, to the best knowledge of
Goldenbanks, such Plan or trust, or any trustee, fiduciary or administrator
thereof, or any party dealing with any such Plan or trust, to the tax or
penalty on prohibited transactions imposed by said Section 4975 or would
result in material liability
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to Goldenbanks and the Goldenbanks Subsidiaries taken as a whole.
(v) No Plan which is subject to Title IV of ERISA or any trust
created thereunder has been terminated, nor have there been any "reportable
events" as that term is defined in Section 4043 of ERISA, with respect to
any Plan, other than those events which may result from the transactions
contemplated by this Agreement and the Merger Agreement.
(vi) No Plan or any trust created thereunder has incurred any
"accumulated funding deficiency", as such term is defined in Section 412 of
the Code (whether or not waived), since the effective date of ERISA.
(vii) Except as disclosed in Schedule 2(p), neither the execution and
delivery of this Agreement and the Merger Agreement nor the consummation of
the transactions contemplated hereby and thereby will (i) result in any
material payment (including, without limitation, severance, unemployment
compensation, golden parachute or otherwise) becoming due to any director
or employee or former employee of Goldenbanks or any Goldenbanks Subsidiary
under any Plan or otherwise, (ii) materially increase any benefits
otherwise payable under any Plan or (iii) result in the acceleration of the
time of payment or vesting of any such benefits to any material extent.
(q) Proxy Statement, etc. None of the information regarding Goldenbanks and
the Goldenbanks Subsidiaries supplied or to be supplied by Goldenbanks for
inclusion in (i) a Registration Statement on Form S-4 to be filed with the SEC
by Norwest for the purpose of registering the shares of Norwest Common Stock to
be exchanged for shares of Goldenbanks Common Stock pursuant to the provisions
of the Merger Agreement (the "Registration Statement"), (ii) the proxy statement
to be mailed to Goldenbanks' stockholders in connection with the meeting to be
called to consider the Merger (the "Proxy Statement") and (iii) any other
documents to be filed with the SEC or any regulatory authority in connection
with the transactions contemplated hereby or by the Merger Agreement will, at
the respective times such documents are filed with the SEC or any regulatory
authority and, in the case of the Registration Statement, when it becomes
effective and, with respect to the Proxy Statement, when mailed, be false or
misleading with respect to any material fact, or omit to state any material fact
necessary in order to make the statements therein not misleading or, in the case
of the Proxy Statement or any amendment thereof or supplement thereto, at the
time of the meeting of stockholders referred to in paragraph 4(c), be false or
misleading with respect to any material fact, or omit to state any material fact
necessary to correct any statement in any earlier communication with respect to
the solicitation of any proxy for such meeting. All documents which Goldenbanks
and the Goldenbanks Subsidiaries are responsible for filing with the SEC
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and any other regulatory authority in connection with the Merger will comply as
to form in all material respects with the provisions of applicable law.
(r) Registration Obligations. Except as set forth on Schedule 2(r), neither
Goldenbanks nor any Goldenbanks Subsidiary is under any obligation, contingent
or otherwise, which will survive the Merger by reason of any agreement to
register any of its securities under the Securities Act.
(s) Brokers and Finders. Except for The Wallach Company, neither Goldenbanks
nor any Goldenbanks Subsidiary nor any of their respective officers, directors
or employees has employed any broker or finder or incurred any liability for any
financial advisory fees, brokerage fees, commissions or finder's fees, and no
broker or finder has acted directly or indirectly for Goldenbanks or any
Goldenbanks Subsidiary in connection with this Agreement and the Merger
Agreement or the transactions contemplated hereby and thereby.
(t) Fiduciary Activities. Neither Goldenbanks nor any Goldenbanks Subsidiary
has ever had any accounts for which it has acted as a fiduciary including but
not limited to accounts for which it has served as trustee, agent, custodian,
personal representative, guardian, conservator or investment advisor; provided,
however, that the Goldenbanks Subsidiaries have acted in a fiduciary capacity
with respect to individual retirement accounts and Keogh accounts.
(u) No Defaults. Neither Goldenbanks nor any Goldenbanks Subsidiary is in
default, nor has any event occurred which, with the passage of time or the
giving of notice, or both, would constitute a default, under any material
agreement, indenture, loan agreement or other instrument to which it is a party
or by which it or any of its assets is bound or to which any of its assets is
subject, the result of which has had or could reasonably be expected to have a
Material Adverse Effect. To the best of Goldenbanks' knowledge, all parties
with whom Goldenbanks or any Goldenbanks Subsidiary has material leases,
agreements or contracts or who owe to Goldenbanks or any Goldenbanks Subsidiary
material obligations other than with respect to those arising in the ordinary
course of the banking business of the Goldenbanks Subsidiaries are in compliance
therewith in all material respects.
(v) Environmental Liability. There is no legal, administrative, or other
proceeding, claim, or action of any nature seeking to impose, or that could
reasonably be expected to result in the imposition of, on Goldenbanks or any
Goldenbanks Subsidiary, any liability relating to the release of hazardous
substances as defined under any local, state or federal environmental statute,
regulation or ordinance including, without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended,
pending or to the best of Goldenbanks' knowledge, threatened
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against Goldenbanks or any Goldenbanks Subsidiary the result of which has had or
could reasonably be expected to have a Material Adverse Effect; to the best of
Goldenbanks' knowledge there is no reasonable basis for any such proceeding,
claim or action; and to the best of Goldenbanks' knowledge neither Goldenbanks
nor any Goldenbanks Subsidiary is subject to any agreement, order, judgment, or
decree by or with any court, governmental authority or third party imposing any
such environmental liability. Goldenbanks has provided Norwest with copies of
all environmental assessments, reports, studies and other related information in
its possession with respect to each bank facility and each non-residential OREO
property.
3. REPRESENTATIONS AND WARRANTIES OF NORWEST. Norwest represents and
warrants to Goldenbanks as follows:
(a) Organization and Authority. Norwest is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware,
is duly qualified to do business and is in good standing in all jurisdictions
where its ownership or leasing of property or the conduct of its business
requires it to be so qualified and failure to be so qualified would have a
material adverse effect on Norwest and its subsidiaries taken as a whole and has
corporate power and authority to own its properties and assets and to carry on
its business as it is now being conducted. Norwest is registered as a bank
holding company with the Federal Reserve Board under the BHC Act.
(b) Norwest Subsidiaries. Schedule 3(b) sets forth a complete and correct
list as of December 31, 1993, of Norwest's Significant Subsidiaries (as defined
in Regulation S-X promulgated by the SEC) (individually a "Norwest Subsidiary"
and collectively the "Norwest Subsidiaries"), all shares of the outstanding
capital stock of each of which, except as set forth in Schedule 3(b), are owned
directly or indirectly by Norwest. No equity security of any Norwest Subsidiary
is or may be required to be issued to any person or entity other than Norwest by
reason of any option, warrant, scrip, right to subscribe to, call or commitment
of any character whatsoever relating to, or security or right convertible into,
shares of any capital stock of such subsidiary, and there are no contracts,
commitments, understandings or arrangements by which any Norwest Subsidiary is
bound to issue additional shares of its capital stock, or options, warrants or
rights to purchase or acquire any additional shares of its capital stock.
Subject to 12 U.S.C. (S) 55 (1982), all of such shares so owned by Norwest are
fully paid and nonassessable and are owned by it free and clear of any lien,
claim, charge, option, encumbrance or agreement with respect thereto. Each
Norwest Subsidiary is a corporation or national banking association duly
organized, validly existing, duly qualified to do business and in good standing
under the laws of its jurisdiction of incorporation, and has corporate power and
authority to own or lease its properties and assets and to carry on its business
as it is now being conducted.
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(c) Norwest Capitalization. The authorized capital stock of Norwest consists
of (i) 5,000,000 shares of Preferred Stock, without par value, of which as of
the close of business on June 30, 1994, 1,127,125 shares of 10.24% Cumulative
Preferred Stock at $100 stated value and 1,143,675 shares of Cumulative
Convertible Preferred Stock, Series B, at $200 stated value and 22,471 shares of
ESOP Cumulative Convertible Preferred Stock, at $1,000 stated value were
outstanding, and (ii) 500,000,000 shares of Common Stock, $1-2/3 par value, of
which as of the close of business on June 30, 1994, 313,005,575 shares were
outstanding and 10,078,899 shares were held in the treasury.
(d) Authorization. Norwest has the corporate power and authority to enter
into this Agreement and to carry out its obligations hereunder. The execution,
delivery and performance of this Agreement by Norwest and the consummation of
the transactions contemplated hereby have been duly authorized by the Board of
Directors of Norwest. No approval or consent by the stockholders of Norwest is
necessary for the execution and delivery of this Agreement and the Merger
Agreement and the consummation of the transactions contemplated hereby and
thereby. Subject to such approvals of government agencies and other governing
boards having regulatory authority over Norwest as may be required by statute or
regulation, this Agreement is a valid and binding obligation of Norwest
enforceable against Norwest in accordance with its terms.
Neither the execution, delivery and performance by Norwest of this Agreement
or the Merger Agreement, nor the consummation of the transactions contemplated
hereby and thereby, nor compliance by Norwest with any of the provisions hereof
or thereof, will (i) violate, conflict with, or result in a breach of any
provision of, or constitute a default (or an event which, with notice or lapse
of time or both, would constitute a default) under, or result in the termination
of, or accelerate the performance required by, or result in a right of
termination or acceleration of, or result in the creation of, any lien, security
interest, charge or encumbrance upon any of the properties or assets of Norwest
or any Norwest Subsidiary under any of the terms, conditions or provisions of
(x) its certificate of incorporation or by-laws or (y) any material note, bond,
mortgage, indenture, deed of trust, license, lease, agreement or other
instrument or obligation to which Norwest or any Norwest Subsidiary is a party
or by which it may be bound, or to which Norwest or any Norwest Subsidiary or
any of the properties or assets of Norwest or any Norwest Subsidiary may be
subject, or (ii) subject to compliance with the statutes and regulations
referred to in the next paragraph, to the best knowledge of Norwest, violate any
judgment, ruling, order, writ, injunction, decree, statute, rule or regulation
applicable to Norwest or any Norwest Subsidiary or any of their respective
properties or assets.
Other than in connection with or in compliance with the provisions of the
Securities Act, the Exchange Act, the
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securities or blue sky laws of the various states or filings, consents, reviews,
authorizations, approvals or exemptions required under the BHC Act or the HSR
Act, and filings required to effect the Merger under Delaware law, no notice to,
filing with, exemption or review by, or authorization, consent or approval of,
any public body or authority is necessary for the consummation by Norwest of the
transactions contemplated by this Agreement and the Merger Agreement.
(e) Norwest Financial Statements. The consolidated balance sheets of Norwest
and Norwest's subsidiaries as of December 31, 1993 and 1992 and related
consolidated statements of income, stockholders' equity and cash flows for the
three years ended December 31, 1993, together with the notes thereto, certified
by KPMG Peat Marwick L.L.P. and included in Norwest's Annual Report on Form 10-K
for the fiscal year ended December 31, 1993 as amended by Form 10-K/A dated May
13, 1994 (the "Norwest 10-K") as filed with the SEC, and the unaudited
consolidated balance sheets of Norwest and its subsidiaries as of June 30, 1994
and the related unaudited consolidated statements of income and cash flows for
the 6 months then ended included in Norwest's Quarterly Report on Form 10-Q for
the fiscal quarter ended June 30, 1994, as filed with the SEC (collectively, the
"Norwest Financial Statements"), have been prepared in accordance with generally
accepted accounting principles applied on a consistent basis and present fairly
(subject, in the case of financial statements for interim periods, to normal
recurring adjustments) the consolidated financial position of Norwest and its
subsidiaries at the dates and the consolidated results of operations, changes in
financial position and cash flows of Norwest and its subsidiaries for the
periods stated therein.
(f) Reports. Since December 31, 1988, Norwest and each Norwest Subsidiary
has filed all reports, registrations and statements, together with any required
amendments thereto, that it was required to file with (i) the SEC, including,
but not limited to, Forms 10-K, Forms 10-Q and proxy statements, (ii) the
Federal Reserve Board, (iii) the FDIC, (iv) the Comptroller and (v) any
applicable state securities or banking authorities. All such reports and
statements filed with any such regulatory body or authority are collectively
referred to herein as the "Norwest Reports". As of their respective dates, the
Norwest Reports complied in all material respects with all the rules and
regulations promulgated by the SEC, the Federal Reserve Board, the FDIC, the
Comptroller and any applicable state securities or banking authorities, as the
case may be, and did not contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they were
made, not misleading.
(g) Properties and Leases. Except as may be reflected in the Norwest
Financial Statements and except for any lien for current taxes not yet
delinquent, Norwest and each Norwest
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Subsidiary has good title free and clear of any material liens, claims, charges,
options, encumbrances or similar restrictions to all the real and personal
property reflected in Norwest's consolidated balance sheet as of June 30, 1994
included in Norwest's Quarterly Report on Form 10-Q for the period then ended,
and all real and personal property acquired since such date, except such real
and personal property has been disposed of in the ordinary course of business.
All leases of real property and all other leases material to Norwest or any
Norwest Subsidiary pursuant to which Norwest or such Norwest Subsidiary, as
lessee, leases real or personal property, are valid and effective in accordance
with their respective terms, and there is not, under any such lease, any
material existing default by Norwest or such Norwest Subsidiary or any event
which, with notice or lapse of time or both, would constitute such a material
default. Substantially all Norwest's and each Norwest Subsidiary's buildings and
equipment in regular use have been well maintained and are in good and
serviceable condition, reasonable wear and tear excepted.
(h) Taxes. Each of Norwest and the Norwest Subsidiaries has filed all
material federal, state, county, local and foreign tax returns, including
information returns, required to be filed by it, and paid or made adequate
provision for the payment of all taxes owed by it, including those with respect
to income, withholding, social security, unemployment, workers compensation,
franchise, ad valorem, premium, excise and sales taxes, and no taxes shown on
such returns to be owed by it or assessments received by it are delinquent. The
federal income tax returns of Norwest and the Norwest Subsidiaries for the
fiscal year ended December 31, 1979, and for all fiscal years prior thereto, are
for the purposes of routine audit by the Internal Revenue Service closed because
of the statute of limitations, and no claims for additional taxes for such
fiscal years are pending. Except only as set forth on Schedule 3(h), (i)
neither Norwest nor any Norwest Subsidiary is a party to any pending action or
proceeding, nor to Norwest's knowledge is any such action or proceeding
threatened by any governmental authority, for the assessment or collection of
taxes, interest, penalties, assessments or deficiencies which could reasonably
be expected to have any material adverse effect on Norwest and its subsidiaries
taken as a whole, and (ii) no issue has been raised by any federal, state, local
or foreign taxing authority in connection with an audit or examination of the
tax returns, business or properties of Norwest or any Norwest Subsidiary which
has not been settled, resolved and fully satisfied, or adequately reserved for.
Each of Norwest and the Norwest Subsidiaries has paid all taxes owed or which it
is required to withhold from amounts owing to employees, creditors or other
third parties.
(i) Absence of Certain Changes. Since December 31, 1993, there has been no
change in the business, financial condition or results of operations of Norwest
or any Norwest Subsidiary which has had, or may reasonably be expected to have,
a material
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adverse effect on the business, financial condition or results of operations of
Norwest and its subsidiaries taken as a whole.
(j) Commitments and Contracts. Except as set forth on Schedule 3(j), as of
June 30, 1994 neither Norwest nor any Norwest Subsidiary is a party or subject
to any of the following (whether written or oral, express or implied):
(i) any labor contract or agreement with any labor union;
(ii) any contract not made in the ordinary course of business
containing covenants which materially limit the ability of Norwest or any
Norwest Subsidiary to compete in any line of business or with any person or
which involve any material restriction of the geographical area in which,
or method by which, Norwest or any Norwest Subsidiary may carry on its
business (other than as may be required by law or applicable regulatory
authorities);
(iii) any other contract or agreement which is a "material contract"
within the meaning of Item 601(b)(10) of Regulation S-K.
(k) Litigation and Other Proceedings. Neither Norwest nor any Norwest
Subsidiary is a party to any pending or, to the best knowledge of Norwest,
threatened, claim, action, suit, investigation or proceeding, or is subject to
any order, judgment or decree, except for matters which, in the aggregate, will
not have, or cannot reasonably be expected to have, a material adverse effect on
the business, financial condition or results of operations of Norwest and its
subsidiaries taken as a whole.
(l) Insurance. Norwest and each Norwest Subsidiary is presently insured
or self insured, and during each of the past five calendar years (or during such
lesser period of time as Norwest has owned such Norwest Subsidiary) has been
insured or self-insured, for reasonable amounts with financially sound and
reputable insurance companies against such risks as companies engaged in a
similar business would, in accordance with good business practice, customarily
be insured and has maintained all insurance required by applicable law and
regulation.
(m) Compliance with Laws. Norwest and each Norwest Subsidiary has all
permits, licenses, authorizations, orders and approvals of, and has made all
filings, applications and registrations with, federal, state, local or foreign
governmental or regulatory bodies that are required in order to permit it to own
or lease its properties or assets and to carry on its business as presently
conducted and that are material to the business of Norwest or such Subsidiary;
all such permits, licenses, certificates of authority, orders and approvals are
in full force and effect, and to the best knowledge of Norwest, no suspension or
cancellation of any of them is threatened; and all
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such filings, applications and registrations are current. The conduct by Norwest
and each Norwest Subsidiary of its business and the condition and use of its
properties does not violate or infringe, in any respect material to any such
business, any applicable domestic (federal, state or local) or foreign law,
statute, ordinance, license or regulation. Neither Norwest nor any Norwest
Subsidiary is in default under any order, license, regulation or demand of any
federal, state, municipal or other governmental agency or with respect to any
order, writ, injunction or decree of any court. Except for statutory or
regulatory restrictions of general application, no federal, state, municipal or
other governmental authority has placed any restrictions on the business or
properties of Norwest or any Norwest Subsidiary which reasonably could be
expected to have a material adverse effect on the business or properties of
Norwest and its subsidiaries taken as a whole.
(n) Labor. No work stoppage involving Norwest or any Norwest Subsidiary
is pending or, to the best knowledge of Norwest, threatened. Neither Norwest
nor any Norwest Subsidiary is involved in, or threatened with or affected by,
any labor dispute, arbitration, lawsuit or administrative proceeding which could
materially and adversely affect the business of Norwest or such Norwest
Subsidiary. Except as set forth on Schedule 3(j), employees of Norwest and the
Norwest Subsidiaries are not represented by any labor union nor are any
collective bargaining agreements otherwise in effect with respect to such
employees.
(o) Norwest Benefit Plans.
(i) As of September 1, 1994, the only "employee benefit plans" within
the meaning of Section 3(3) of ERISA for which Norwest or any Norwest
Subsidiary acts as plan sponsor as defined in ERISA Section 3(16)(B) with
respect to which any liability under ERISA or otherwise exists or may be
incurred by Norwest or any Norwest Subsidiary are those set forth on
Schedule 3(o) (the "Norwest Plans"). No Norwest Plan is a "multi-employer
plan" within the meaning of Section 3(37) of ERISA.
(ii) Each Norwest Plan is and has been in all material respects
operated and administered in accordance with its provisions and applicable
law. Except as set forth on Schedule 3(o), Norwest or the Norwest
Subsidiaries have received favorable determination letters from the
Internal Revenue Service under the provisions of the Tax Equity and Fiscal
Responsibility Act ("TEFRA"), the Deficit Reduction Act ("DEFRA") and the
Retirement Equity Act ("REA") for each of the Norwest Plans to which the
qualification requirements of Section 401(a) of the Code apply. Norwest
knows of no reason that any Norwest Plan which is subject to the
qualification provisions of Section 401(a) of the Code is not "qualified"
within the meaning of Section 401(a) of the Code and that each related
trust is not exempt from taxation under Section
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501(a) of the Code, except that any such Norwest Plan may not have been
amended to comply with TRA and other recent legislation and regulations,
although each such Norwest Plan is within the remedial amendment period
during which retroactive amendment may be made.
(iii) The present value of all benefits vested and all benefits
accrued under each Norwest Plan which is subject to Title IV of ERISA did
not, in each case, as determined for purposes of reporting on Schedule B to
the Annual Report on Form 5500 of each such Norwest Plan as of the end of
the most recent Plan year, exceed the value of the assets of the Norwest
Plans allocable to such vested or accrued benefits.
(iv) Except as set forth on Schedule 3(o), and to the best knowledge
of Norwest, no Norwest Plan or any trust created thereunder, nor any
trustee, fiduciary or administrator thereof, has engaged in a "prohibited
transaction", as such term is defined in Section 4975 of the Code or
Section 406 of ERISA or violated fiduciary standards under Part 4 of Title
I of ERISA, which could subject, to the best knowledge of Norwest, such
Norwest Plan or trust, or any trustee, fiduciary or administrator thereof,
or any party dealing with any such Norwest Plan or trust, to the tax or
penalty on prohibited transactions imposed by said Section 4975 or would
result in material liability to Norwest and its subsidiaries taken as a
whole.
(v) Except as set forth on Schedule 3(o), no Norwest Plan which is
subject to Title IV of ERISA or any trust created thereunder has been
terminated, nor have there been any "reportable events" as that term is
defined in Section 4043 of ERISA with respect to any Norwest Plan, other
than those events which may result from the transactions contemplated by
this Agreement and the Merger Agreement.
(vi) No Norwest Plan or any trust created thereunder has incurred any
"accumulated funding deficiency", as such term is defined in Section 412 of
the Code (whether or not waived), during the last five Norwest Plan years
which would result in a material liability.
(vii) Neither the execution and delivery of this Agreement and the
Merger Agreement nor the consummation of the transactions contemplated
hereby and thereby will (i) result in any material payment (including,
without limitation, severance, unemployment compensation, golden parachute
or otherwise) becoming due to any director or employee or former employee
of Norwest under any Norwest Plan or otherwise, (ii) materially increase
any benefits otherwise payable under any Norwest Plan or (iii) result
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in the acceleration of the time of payment or vesting of any such benefits
to any material extent.
(p) Registration Statement, etc. None of the information regarding
Norwest and its subsidiaries supplied or to be supplied by Norwest for inclusion
in (i) the Registration Statement, (ii) the Proxy Statement, or (iii) any other
documents to be filed with the SEC or any regulatory authority in connection
with the transactions contemplated hereby or by the Merger Agreement will, at
the respective times such documents are filed with the SEC or any regulatory
authority and, in the case of the Registration Statement, when it becomes
effective and, with respect to the Proxy Statement, when mailed, be false or
misleading with respect to any material fact, or omit to state any material fact
necessary in order to make the statements therein not misleading or, in the case
of the Proxy Statement or any amendment thereof or supplement thereto, at the
time of the meeting of stockholders referred to in paragraph 4(c), be false or
misleading with respect to any material fact, or omit to state any material fact
necessary to correct any statement in any earlier communication with respect to
the solicitation of any proxy for such meeting. All documents which Norwest and
the Norwest Subsidiaries are responsible for filing with the SEC and any other
regulatory authority in connection with the Merger will comply as to form in all
material respects with the provisions of applicable law.
(q) Brokers and Finders. Neither Norwest nor any Norwest Subsidiary nor
any of their respective officers, directors or employees has employed any broker
or finder or incurred any liability for any financial advisory fees, brokerage
fees, commissions or finder's fees, and no broker or finder has acted directly
or indirectly for Norwest or any Norwest Subsidiary in connection with this
Agreement and the Merger Agreement or the transactions contemplated hereby and
thereby.
(r) No Defaults. Neither Norwest nor any Norwest Subsidiary is in
default, nor has any event occurred which, with the passage of time or the
giving of notice, or both, would constitute a default under any material
agreement, indenture, loan agreement or other instrument to which it is a party
or by which it or any of its assets is bound or to which any of its assets is
subject, the result of which has had or could reasonably be expected to have a
material adverse effect upon Norwest and its subsidiaries taken as a whole. To
the best of Norwest's knowledge, all parties with whom Norwest or any Norwest
Subsidiary has material leases, agreements or contracts or who owe to Norwest or
any Norwest Subsidiary material obligations other than with respect to those
arising in the ordinary course of the banking business of the Norwest
Subsidiaries are in compliance therewith in all material respects.
(s) Environmental Liability. There is no legal, administrative, or other
proceeding, claim, or action of any
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nature seeking to impose, or that could result in the imposition, on Norwest or
any Norwest Subsidiary of any liability relating to the release of hazardous
substances as defined under any local, state or federal environmental statute,
regulation or ordinance including, without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended,
pending or to the best of Norwest's knowledge, threatened against Norwest or any
Norwest Subsidiary, the result of which has had or could reasonably be expected
to have a material adverse effect upon Norwest and its subsidiaries taken as a
whole; to the best of Norwest's knowledge there is no reasonable basis for any
such proceeding, claim or action; and to the best of Norwest's knowledge neither
Norwest nor any Norwest Subsidiary is subject to any agreement, order, judgment,
or decree by or with any court, governmental authority or third party imposing
any such environmental liability.
(t) Merger Co. As of the Closing Date, Merger Co. will be a corporation
duly organized, validly existing, duly qualified to do business and in good
standing under the laws of its jurisdiction of incorporation, and will have
corporate power and authority to own or lease its properties and assets and to
carry on its business.
4. COVENANTS OF GOLDENBANKS. Goldenbanks covenants and agrees with Norwest as
follows:
(a) Except as otherwise permitted or required by this Agreement, from the
date hereof until the Effective Time of the Merger, Goldenbanks, and each
Goldenbanks Subsidiary will: maintain its corporate existence in good standing;
maintain the general character of its business and conduct its business in its
ordinary and usual manner; extend credit in accordance with existing lending
policies, except that it shall not, without the prior written consent of Norwest
(which consent requirement shall be deemed to be waived as to any loan approval
request to which Norwest has made no response by the second business day
following receipt of the request), make any new loan or modify, restructure or
renew any existing loan (except pursuant to commitments made prior to the date
of this Agreement) to any borrower if the amount of the resulting loan, when
aggregated with all other loans or extensions of credit to such person, would be
in excess of $400,000; maintain proper business and accounting records in
accordance with generally accepted principles; maintain its properties in good
repair and condition, ordinary wear and tear excepted; maintain in all material
respects presently existing insurance coverage; use its best efforts to preserve
its business organization intact, to keep the services of its present principal
employees and to preserve its good will and the good will of its suppliers,
customers and others having business relationships with it; use its best efforts
to obtain any approvals or consents required to maintain existing leases and
other contracts in effect following the Merger; comply in all material respects
with all laws, regulations, ordinances, codes, orders, licenses and permits
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applicable to the properties and operations of Goldenbanks and each Goldenbanks
Subsidiary the non-compliance with which reasonably could be expected to have a
Material Adverse Effect; and furnish monthly financial reports, in the form
submitted by Goldenbanks and the Goldenbanks Subsidiaries to their respective
boards of directors, to Norwest; and permit Norwest and its representatives
(including KPMG Peat Marwick L.L.P.) to examine its and its subsidiaries books,
records and properties and to interview officers, employees and agents at all
reasonable times when it is open for business. No such examination by Norwest
or its representatives either before or after the date of this Agreement shall
in any way affect, diminish or terminate any of the representations, warranties
or covenants of Goldenbanks herein expressed.
(b) Except as otherwise contemplated or required by this Agreement, from
the date hereof until the Effective Time of the Merger, Goldenbanks and each
Goldenbanks Subsidiary will not (without the prior written consent of Norwest):
amend or otherwise change its articles of incorporation or association or by-
laws; issue or sell or authorize for issuance or sale, or grant any options or
make other agreements with respect to the issuance or sale or conversion of, any
shares of its capital stock, phantom shares or other share-equivalents, or any
other of its securities, except that Goldenbanks may issue shares of Goldenbanks
Common Stock upon the exercise of the option granted under the Stock Option
Agreement; authorize or incur any long-term debt (other than deposit
liabilities); mortgage, pledge or subject to lien or other encumbrance any of
its properties, except in the ordinary course of business; enter into any
material agreement, contract or commitment in excess of $10,000 except
transactions in the ordinary course of business and in accordance with policies
and procedures in effect on the date hereof; make any investments except
investments made by bank subsidiaries in the ordinary course of business for
terms of up to one year and in amounts of $100,000 or less; amend or terminate
any Plan except as required by law; make any contributions to any Plan except as
required by the terms of such Plan in effect as of the date hereof except
discretionary contributions made in the ordinary course of business in
accordance with past practices; declare, set aside, make or pay any dividend or
other distribution with respect to its capital stock except any dividend
declared by a subsidiary's Board of Directors in accordance with applicable law
and regulation, provided, however, that between the date hereof and the
Effective Date of the Merger, Goldenbanks may declare and pay cash dividends on
Goldenbanks Common Stock in an amount not to exceed $0.15 per share for the
quarter ending December 31, 1994, and $0.20 per share payable on each of
March 1, 1995 and June 1, 1995 (to shareholders of record on February 3, 1995
and March 5, 1995, respectively), provided, further, that if the Effective Date
of the Merger is after August 1, 1995, Goldenbanks may declare and pay cash
dividends on Goldenbanks Common Stock in an amount equal to the amount, if any,
payable to holders of 2,708,575 shares of Norwest Common Stock between August 1,
1995
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and the Effective Date of the Merger; redeem, purchase or otherwise acquire,
directly or indirectly, any of the capital stock of Goldenbanks; increase the
compensation of any officers, directors or executive employees, except pursuant
to existing compensation plans and practices; sell or otherwise dispose of any
shares of the capital stock of any Goldenbanks Subsidiary; or sell or otherwise
dispose of any of its assets or properties other than in the ordinary course of
business.
(c) The Board of Directors of Goldenbanks will duly call, and will cause
to be held not later than twenty-five (25) business days following the effective
date of the Registration Statement referred to in paragraph 5(c) hereof, a
meeting of its stockholders and will direct that this Agreement and the Merger
Agreement be submitted to a vote at such meeting. The Board of Directors of
Goldenbanks will (i) cause proper notice of such meeting to be given to its
stockholders in compliance with the Delaware General Corporation Law and other
applicable law and regulation, and (ii) except to the extent, based on the
advice of counsel, legally advisable for the discharge of the fiduciary duties
of the Board of Directors of Goldenbanks, (A) recommend by the affirmative vote
of the Board of Directors a vote in favor of approval of this Agreement and the
Merger Agreement, and (B) use its best efforts to solicit from its stockholders
proxies in favor thereof.
(d) Goldenbanks will furnish or cause to be furnished to Norwest all the
information concerning Goldenbanks and its subsidiaries required for inclusion
in the Registration Statement referred to in paragraph 5(c) hereof, or any
statement or application made by Norwest to any governmental body in connection
with the transactions contemplated by this Agreement. Any financial statement
for any fiscal year provided under this paragraph must include the audit opinion
and the consent of Deloitte & Touche, LLP to use such opinion in such
Registration Statement.
(e) Goldenbanks will take all necessary corporate and other action and use
its best efforts to obtain all approvals of regulatory authorities, consents and
other approvals required of Goldenbanks to carry out the transactions
contemplated by this Agreement and will cooperate with Norwest to obtain all
such approvals and consents required of Norwest.
(f) Goldenbanks will use its best efforts to deliver to the Closing all
opinions, certificates and other documents required to be delivered by it at the
Closing.
(g) Goldenbanks will hold in confidence all documents and information
concerning Norwest and its subsidiaries furnished to Goldenbanks and its
representatives in connection with the transactions contemplated by this
Agreement and will not release or disclose such information to any other person,
except as required by law and except to Goldenbanks' outside professional
advisers in connection with this Agreement, with the same
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undertaking from such professional advisers. If the transactions contemplated
by this Agreement shall not be consummated, such confidence shall be maintained
and such information shall not be used in competition with Norwest (except to
the extent that such information can be shown to be previously known to
Goldenbanks, in the public domain, or later acquired by Goldenbanks from other
legitimate sources) and, upon request, all such documents, any copies thereof
and extracts therefrom shall immediately thereafter be returned to Norwest.
(h) Neither Goldenbanks, nor any Goldenbanks Subsidiary, nor any director,
officer, representative or agent thereof, will, directly or indirectly, solicit,
authorize the solicitation of or, except to the extent, based on the advice of
counsel, legally advisable for the discharge of the fiduciary duties of the
Board of Directors of Goldenbanks, enter into any discussions with any
corporation, partnership, person or other entity or group (other than Norwest)
concerning any offer or possible offer (i) to purchase any shares of common
stock, any option or warrant to purchase any shares of common stock, any
securities convertible into any shares of such common stock, or any other equity
security of Goldenbanks or any Goldenbanks Subsidiary, (ii) to make a tender or
exchange offer for any shares of such common stock or other equity security,
(iii) to purchase, lease or otherwise acquire the assets of Goldenbanks or any
Goldenbanks Subsidiary except in the ordinary course of business, or (iv) to
merge, consolidate or otherwise combine with Goldenbanks or any Goldenbanks
Subsidiary. If any corporation, partnership, person or other entity or group
makes an offer or inquiry to Goldenbanks or any Goldenbanks Subsidiary
concerning any of the foregoing, Goldenbanks or such Goldenbanks Subsidiary will
promptly disclose such offer or inquiry, including the terms thereof, to
Norwest.
(i) Goldenbanks shall consult with Norwest as to the form and substance of
any proposed press release or other proposed public disclosure, by Goldenbanks
or any of its representatives (including but not limited to The Wallach
Company), of matters related to this Agreement or any of the transactions
contemplated hereby.
(j) Goldenbanks and each Goldenbanks Subsidiary will take all action
necessary or required (i) to terminate or amend, if requested by Norwest, all
qualified pension and welfare benefit plans to faciliate the merger of such
plans with Norwest plans without gaps in coverage for participants in the plans
and without duplication of costs caused by the continuation of such plans after
coverage is available under Norwest plans, and all non-qualified benefit plans
and compensation arrangements as of the Effective Date of the Merger; provided,
however, that the amendments set forth in paragraph 4(p) below are the only
amendments which Goldenbanks shall be required to make to the Goldenbanks Salary
Continuation Plan (as defined below) and no termination of that plan may be
required, (ii) to amend the Plans to comply with the provisions of the TRA and
regulations
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thereunder and other applicable law, and (iii) to submit application to the
Internal Revenue Service for a favorable determination letter for each of the
Plans which is subject to the qualification requirements of Section 401(a) of
the Code prior to the Effective Date of the Merger.
(k) Neither Goldenbanks nor any Goldenbanks Subsidiary shall take any action
which with respect to Goldenbanks would disqualify the Merger as a "pooling of
interests" for accounting purposes.
(l) Goldenbanks shall use its best efforts to obtain and deliver at least 32
days prior to the Effective Date of the Merger signed representations
substantially in the form attached hereto as Exhibit B to Norwest by each
executive officer, director or stockholder of Goldenbanks who may reasonably be
deemed an "affiliate" of Goldenbanks within the meaning of such term as used in
Rule 145 under the Securities Act.
(m) Goldenbanks shall establish such additional accruals and reserves as may
be necessary to conform Goldenbanks' accounting and credit loss reserve
practices and methods to those of Norwest and Norwest's plans with respect to
the conduct of Goldenbanks' business following the Merger and to provide for the
costs and expenses relating to the consummation by Goldenbanks of the Merger and
the other transactions contemplated by this Agreement.
(n) Goldenbanks shall obtain Phase I environmental assessments for each bank
facility and each non-residential OREO property. Oral reports of such
environmental assessments shall be delivered to Norwest no later than four (4)
weeks and written reports shall be delivered to Norwest no later than eight (8)
weeks from the date of this Agreement. Goldenbanks shall obtain Phase II
environmental assessments for properties identified by Norwest on the basis of
the results of such Phase I environmental assessments. Goldenbanks shall pay
the amount, if any, by which the aggregate cost of such Phase I and Phase II
environmental assessments exceeds $50,000.
(o) Goldenbanks shall deliver any existing title insurance policies and
boundary surveys for each bank facility owned by Goldenbanks or any Goldenbanks
Subsidiary and, where necessary, assist Norwest in obtaining commitments for
title insurance and boundary surveys for each such bank facility, all of which
commitments and surveys shall be delivered to Norwest no later than four (4)
weeks from the date of this Agreement.
(p) Goldenbanks shall amend the Goldenbanks of Colorado, Inc. Salary
Continuation Plan dated November 16, 1993, as amended through December 14, 1993
(the "Goldenbanks Salary Continuation Plan"), effective immediately prior to the
Effective Time of the Merger, to:
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(i) amend paragraph 2(b) thereof to read in its entirety as follows:
"(b) A change in control of this corporation is defined as (i) a merger,
consolidation or similar transaction involving a third party and the
corporation or any of its subsidiaries, (ii) a purchase by or other
transfer to a third party of all or substantially all of the assets of the
corporation or any of its subsidiaries, or (iii) the acquisition by
purchase or otherwise by a third party of securities representing 50% or
more of the voting power of the corporation or any of its subsidiaries."
(ii) amend paragraph 2(c) thereof to read in its entirety as follows:
"(c) "Termination" shall mean termination for any of the following reasons:
involutary termination, resignation, reduction in pay of 5% or more, or
death."; and
(iii) amend the first sentence of paragraph 3(b) thereof to read as
follows: "Each Participant shall be given health coverage substantially
comparable to the coverage in effect for such Participant at the date of
his or her termination."
5. COVENANTS OF NORWEST. Norwest covenants and agrees with Goldenbanks as
follows:
(a) From the date hereof until the Effective Time of the Merger, Norwest
will maintain its corporate existence in good standing; conduct, and cause the
Norwest Subsidiaries to conduct, their respective businesses in compliance with
all material obligations and duties imposed on them by all laws, governmental
regulations, rules and ordinances, and judicial orders, judgments and decrees
applicable to Norwest or the Norwest Subsidiaries, their businesses or their
properties; maintain all books and records of it and the Norwest Subsidiaries,
including all financial statements, in accordance with the accounting principles
and practices consistent with those used for the Norwest Financial Statements,
except for changes in such principles and practices required under generally
accepted accounting principles.
(b) Norwest will furnish to Goldenbanks all the information concerning
Norwest required for inclusion in a proxy statement or statements to be sent to
the stockholders of Goldenbanks, or in any statement or application made by
Goldenbanks to any governmental body in connection with the transactions
contemplated by this Agreement.
(c) As promptly as practicable after the execution of this Agreement,
Norwest will file with the SEC a registration statement on Form S-4 (the
"Registration Statement") under the Securities Act and any other applicable
documents, relating to the shares of Norwest Common Stock to be delivered to the
stockholders of Goldenbanks pursuant to the Merger Agreement,
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and will use its best efforts to cause the Registration Statement to become
effective as soon as practicable following the receipt of the approvals required
by paragraph 7(e) hereof. At the time the Registration Statement becomes
effective, the Registration Statement will comply in all material respects with
the provisions of the Securities Act and the published rules and regulations
thereunder, and will not contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein not false or misleading, and at the time of mailing thereof
to the Goldenbanks stockholders, at the time of the Goldenbanks stockholders'
meeting referred to in paragraph 4(c) hereof and at the Effective Time of the
Merger the prospectus included as part of the Registration Statement, as amended
or supplemented by any amendment or supplement filed by Norwest (hereinafter the
"Prospectus"), will not contain any untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein not false or
misleading; provided, however, that none of the provisions of this subparagraph
shall apply to statements in or omissions from the Registration Statement or the
Prospectus made in reliance upon and in conformity with information furnished by
Goldenbanks or any Goldenbanks Subsidiary for use in the Registration Statement
or the Prospectus.
(d) Norwest will file all documents required to be filed to list the
Norwest Common Stock to be issued pursuant to the Merger Agreement on the New
York Stock Exchange and the Chicago Stock Exchange and use its best efforts to
effect said listings.
(e) The shares of Norwest Common Stock to be issued by Norwest to the
stockholders of Goldenbanks pursuant to this Agreement and the Merger Agreement
will, upon such issuance and delivery to said stockholders pursuant to the
Merger Agreement, be duly authorized, validly issued, fully paid and
nonassessable. The shares of Norwest Common Stock to be delivered to the
stockholders of Goldenbanks pursuant to the Merger Agreement are and will be
free of any preemptive rights of the stockholders of Norwest.
(f) Norwest will file all documents required to obtain, prior to the
Effective Time of the Merger, all necessary Blue Sky permits and approvals, if
any, required to carry out the transactions contemplated by this Agreement, will
pay all expenses incident thereto and will use its best efforts to obtain such
permits and approvals.
(g) Norwest will take all necessary corporate and other action and file
all documents required to obtain and will use its best efforts to obtain all
approvals of regulatory authorities, consents and approvals required of it to
carry out the transactions contemplated by this Agreement and will cooperate
with Goldenbanks to obtain all such approvals and consents required by
Goldenbanks.
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(h) Norwest will hold in confidence all documents and information
concerning Goldenbanks and Goldenbanks' Subsidiaries furnished to it and its
representatives in connection with the transactions contemplated by this
Agreement and will not release or disclose such information to any other person,
except as required by law and except to its outside professional advisers in
connection with this Agreement, with the same undertaking from such professional
advisers. If the transactions contemplated by this Agreement shall not be
consummated, such confidence shall be maintained and such information shall not
be used in competition with Goldenbanks (except to the extent that such
information can be shown to be previously known to Norwest, in the public
domain, or later acquired by Norwest from other legitimate sources) and, upon
request, all such documents, copies thereof or extracts therefrom shall
immediately thereafter be returned to Goldenbanks.
(i) Norwest will file any documents or agreements required to be filed in
connection with the Merger under the Delaware General Corporation Law.
(j) Norwest will use its best efforts to deliver to the Closing all
opinions, certificates and other documents required to be delivered by it at the
Closing.
(k) Norwest shall consult with Goldenbanks as to the form and substance of
any proposed press release or other proposed public disclosure of matters
related to this Agreement or any of the transactions contemplated hereby.
(l) Norwest shall give Goldenbanks written notice of receipt of the
regulatory approvals referred to in paragraph 7(e).
(m) Neither Norwest nor any Norwest Subsidiary shall take any action which
with respect to Norwest would disqualify the Merger as a "pooling of interests"
for accounting purposes or, except as required by law, disqualify the Merger as
a reorganization under Section 368(a) of the Code. Norwest shall use its best
efforts to obtain and deliver to Goldenbanks, prior to the Effective Date of the
Merger, signed representations from the directors and executive officers of
Norwest to the effect that, except for de minimus dispositions which will not
disqualify the Merger as a pooling of interests, they will not dispose of shares
of Norwest or Goldenbanks during the period commencing 30 days prior to the
Effective Date and ending upon publication by Norwest of financial results
including at least 30 days of combined operations of Goldenbanks and Norwest.
(n) For a period not exceeding fifteen days prior to the Closing Date,
Norwest will permit Goldenbanks and its representatives to examine its books,
records and properties and interview officers, employees and agents of Norwest
at all reasonable times when it is open for business. No such examination by
Goldenbanks or its representatives shall in any
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way affect, diminish or terminate any of the representations, warranties or
covenants of Norwest herein expressed.
(o) Norwest shall pay the first $50,000 of the cost of the environmental
assessments required by paragraph 4(n) hereof and shall pay the entire cost of
the commitments and surveys required by paragraph 4(o) hereof.
(p) With respect to the indemnification of officers and directors and
officers' and directors' insurance, Norwest agrees as follows:
(i) Norwest shall ensure that all rights to indemnification and all
limitations of liability existing in favor of any person who is now, or has
been at any time prior to the date hereof, or who becomes prior to the
Effective Time of the Merger, a director or officer of Goldenbanks or any
Goldenbanks Subsidiary, (an "Indemnified Party" and, collectively, the
"Indemnified Parties") in Goldenbanks's Certificate of Incorporation or By-
laws or similar governing documents of any Goldenbanks Subsidiary, as
applicable in the particular case and as in effect on the date hereof,
shall, with respect to claims arising from (A) facts or events that
occurred before the Effective Time of the Merger, or (B) this Agreement or
any of the transactions contemplated by this Agreement, whether in any case
asserted or arising before or after the Effective Time of the Merger,
survive the Merger and shall continue in full force and effect. Nothing
contained in this paragraph 5(p)(i) shall be deemed to preclude the
liquidation, consolidation or merger of Goldenbanks or any Goldenbanks
Subsidiary, in which case all of such rights to indemnification and
limitations on liability shall be deemed to survive and continue as
contractual rights notwithstanding any such liquidation or consolidation or
merger; provided, however, that in the event of liquidation or sale of
substantially all of the assets of Goldenbanks, Norwest shall guarantee, to
the extent of the net asset value of Goldenbanks or any Goldenbanks
Subsidiary as of the Effective Date of the Merger, the indemnification
obligations of Goldenbanks or any Goldenbanks Subsidiary to the extent of
indemnification obligations of Goldenbanks and the Goldenbanks Subsidiaries
described above. Notwithstanding anything to the contrary contained in
this paragraph 5(p)(i), nothing contained herein shall require Norwest to
indemnify any person who was a director or officer of Goldenbanks or any
Goldenbanks Subsidiary to a greater extent than Goldenbanks or any
Goldenbanks Subsidiary is, as of the date of this Agreement, required to
indemnify any such person.
(ii) any Indemnified Party wishing to claim indemnification under
paragraph 5(p)(i), upon learning of any such claim, action, suit,
proceeding or investigation, shall promptly notify Norwest thereof, but the
failure to
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so notify shall not relieve Norwest of any liability it may have to such
Indemnified Party. In the event of any such claim, action, suit,
proceeding or investigation (whether arising before or after the Effective
Time of the Merger), (A) Norwest shall have the right to assume the defense
thereof and Norwest shall not be liable to any Indemnified Party for any
legal expenses of other counsel or any other expenses subsequently incurred
by such Indemnified Party in connection with the defense thereof, except
that if Norwest elects not to assume such defense or counsel for the
Indemnified Party advises that there are issues which raise conflicts of
interest between Norwest and the Indemnified Party, the Indemnified Party
may retain counsel satisfactory to them, and Norwest shall pay the
reasonable fees and expenses of such counsel for the Indemnified Party
promptly as statements therefor are received; provided, however, that
Norwest shall be obligated pursuant to this subparagraph (ii) to pay for
only one firm of counsel for all Indemnified Parties in any jurisdiction
unless the use of one counsel for such Indemnified Parties would present
such counsel with a conflict of interest and (B) such Indemnified Party
shall cooperate in the defense of any such matter.
(iii) for a period of three years after the Effective Time of the
Merger, Norwest shall use its best efforts to cause to be maintained in
effect the current policies of directors' and officers' liability insurance
maintained by Goldenbanks (provided that Norwest may substitute therefor
policies of at least the same coverage and amount containing terms and
conditions which are substantially no less advantageous) with respect to
claims arising from facts or events which occurred before the Effective
Time of the Merger; provided, however, that in no event shall Norwest be
obligated to expend, in order to maintain or provide insurance coverage
pursuant to this paragraph 5(p)(iii), any amount per annum in excess of
125% of the amount of the annual premiums paid as of the date hereof by
Goldenbanks for such insurance (the "Maximum Amount") and provided further
that, prior to the Effective Time of the Merger, Goldenbanks shall notify
the appropriate directors' and officers' liability insurers of the Merger
and of all pending or threatened claims, actions, suits, proceedings or
investigations asserted or claimed against any Indemnified Party, or
circumstances likely to give rise thereto, in accordance with terms and
conditions of the applicable policies. If the amount of the annual
premiums necessary to maintain or procure such insurance coverage exceeds
the Maximum Amount, Norwest shall use reasonable efforts to maintain the
most advantageous policies of directors' and officers' insurance obtainable
for an annual premium equal to the Maximum Amount.
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(iv) if Norwest or any of its successors or assigns (A) shall
consolidate with or merge into any other corporation or entity and shall
not be the continuing or surviving corporation or entity of such
consolidation or merger or (B) shall transfer all or substantially all of
its properties and assets to any individual, corporation or other entity,
then and in each such case, proper provision shall be made so that the
successors and assigns of Norwest shall assume the obligations set forth in
this paragraph 5(p).
(v) the provisions of this paragraph 5(p) are intended to be for the
benefit of, and shall be enforceable by, each Indemnified Party and his or
her heirs and representatives.
6. CONDITIONS PRECEDENT TO OBLIGATION OF GOLDENBANKS. The obligation of
Goldenbanks to effect the Merger shall be subject to the satisfaction at or
before the Time of Filing of the following further conditions, which may be
waived in writing by Goldenbanks:
(a) Except as they may be affected by transactions contemplated hereby and
except to the extent such representations and warranties are by their express
provisions made as of a specified date and except for activities or transactions
after the date of this Agreement made in the ordinary course of business and not
expressly prohibited by this Agreement, the representations and warranties
contained in paragraph 3 hereof shall be true and correct in all respects
material to Norwest and its subsidiaries taken as a whole as if made at the Time
of Filing.
(b) Norwest shall have, or shall have caused to be, performed and observed
in all material respects all covenants, agreements and conditions hereof to be
performed or observed by it and Merger Co. at or before the Time of Filing.
(c) Goldenbanks shall have received a favorable certificate, dated as of
the Effective Date of the Merger, signed by the Chairman, the President or any
Executive Vice President or Senior Vice President and by the Secretary or
Assistant Secretary of Norwest, as to the matters set forth in subparagraphs (a)
and (b) of this paragraph 6.
(d) This Agreement and the Merger Agreement shall have been approved by
the affirmative vote of the holders of the percentage of the outstanding shares
of Goldenbanks required for approval of a plan of merger in accordance with the
provisions of Goldenbanks' Articles of Incorporation and the Delaware General
Corporation Law.
(e) Norwest shall have received approval by the Federal Reserve Board and
by such other governmental agencies as may be required by law of the
transactions contemplated by this
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Agreement and the Merger Agreement and all waiting and appeal periods prescribed
by applicable law or regulation shall have expired.
(f) No court or governmental authority of competent jurisdiction shall
have issued an order restraining, enjoining or otherwise prohibiting the
consummation of the transactions contemplated by this Agreement.
(g) The shares of Norwest Common Stock to be delivered to the stockholders
of Goldenbanks pursuant to this Agreement and the Merger Agreement shall have
been authorized for listing on the New York Stock Exchange and the Chicago Stock
Exchange.
(h) Goldenbanks shall have received an opinion, dated the Closing Date, of
counsel to Goldenbanks, substantially to the effect that, for federal income tax
purposes: (i) the Merger will constitute a reorganization within the meaning of
Sections 368(a)(1)(A) and 368(a)(2)(E) of the Code; (ii) no gain or loss will be
recognized by the holders of Goldenbanks Common Stock upon receipt of Norwest
Common Stock except for cash received in lieu of fractional shares; (iii) the
basis of the Norwest Common Stock received by the stockholders of Goldenbanks
will be the same as the basis of Goldenbanks Common Stock exchanged therefor;
and (iv) the holding period of the shares of Norwest Common Stock received by
the stockholders of Goldenbanks will include the holding period of the
Goldenbanks Common Stock, provided such shares of Goldenbanks Common Stock were
held as a capital asset as of the Effective Time of the Merger.
(i) The Registration Statement (as amended or supplemented) shall have
become effective under the Securities Act and shall not be subject to any stop
order, and no action, suit, proceeding or investigation by the SEC to suspend
the effectiveness of the Registration Statement shall have been initiated and be
continuing, or have been threatened and be unresolved. Norwest shall have
received all state securities law or blue sky authorizations necessary to carry
out the transactions contemplated by this Agreement.
(j) Prior to the mailing of the Proxy Statement referred to in paragraph
4(c), Goldenbanks and the Board of Directors of Goldenbanks shall have received
an opinion of The Wallach Company addressed to Goldenbanks and the Board of
Directors of Goldenbanks, and for their exclusive benefit, for inclusion in said
Proxy Statement and dated effective as of the date of mailing of such Proxy
Statement, based on such matters as The Wallach Company deems appropriate or
necessary, to the effect that the consideration to be received by stockholders
of Goldenbanks pursuant to the Merger is fair from a financial point of view.
Goldenbanks shall promptly provide a copy of such opinion to Norwest upon
receipt.
7. CONDITIONS PRECEDENT TO OBLIGATION OF NORWEST. The obligation of
Norwest to effect the Merger shall be subject to
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the satisfaction at or before the Time of Filing of the following conditions,
which may be waived in writing by Norwest:
(a) Except as they may be affected by transactions contemplated hereby and
except to the extent such representations and warranties are by their express
provisions made as of a specified date and except for activities or transactions
or events occurring after the date of this Agreement made in the ordinary course
of business and not expressly prohibited by this Agreement, the representations
and warranties contained in paragraph 2 hereof shall be true and correct in all
respects material to Goldenbanks and the Goldenbanks Subsidiaries taken as a
whole as if made at the Time of Filing.
(b) Goldenbanks shall have, or shall have caused to be, performed and
observed in all material respects all covenants, agreements and conditions
hereof to be performed or observed by it at or before the Time of Filing.
(c) This Agreement and the Merger Agreement shall have been approved by
the affirmative vote of the holders of the percentage of the outstanding shares
of Goldenbanks required for approval of a plan of merger in accordance with the
provisions of Goldenbanks' Articles of Incorporation and the Delaware General
Corporation Law.
(d) Norwest shall have received a favorable certificate dated as of the
Effective Date of the Merger signed by the Chairman or President and by the
Secretary or Assistant Secretary of Goldenbanks, as to the matters set forth in
subparagraphs (a) through (c) of this paragraph 7.
(e) Norwest shall have received approval by all governmental agencies as
may be required by law of the transactions contemplated by this Agreement and
the Merger Agreement and all waiting and appeal periods prescribed by applicable
law or regulation shall have expired. No approvals, licenses or consents
granted by any regulatory authority shall contain any condition or requirement
relating to Goldenbanks or any Goldenbanks Subsidiary that, in the good faith
judgment of Norwest, is unreasonably burdensome to Norwest.
(f) Goldenbanks and each Goldenbanks Subsidiary shall have obtained any
and all material consents or waivers from other parties to loan agreements,
leases or other contracts material to Goldenbanks' or such subsidiary's business
required for the consummation of the Merger, and Goldenbanks and each
Goldenbanks Subsidiary shall have obtained any and all material permits,
authorizations, consents, waivers and approvals required for the lawful
consummation by it of the Merger.
(g) No court or governmental authority of competent jurisdiction shall
have issued an order restraining, enjoining
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or otherwise prohibiting the consummation of the transactions contemplated by
this Agreement.
(h) The Merger shall qualify as a "pooling of interests" for accounting
purposes and Norwest shall have received opinions to that effect from (i) KPMG
Peat Marwick L.L.P. as to Norwest, and (ii) Deloitte & Touche, LLP as to
Goldenbanks.
(i) At any time since the date hereof the total number of shares of
Goldenbanks Common Stock outstanding and subject to issuance upon exercise
(assuming for this purpose that phantom shares and other share-equivalents
constitute Goldenbanks Common Stock) of all warrants, options, conversion
rights, phantom shares or other share-equivalents, other than any option held by
Norwest, shall not have exceeded 1,366,932.
(j) The Registration Statement (as amended or supplemented) shall have
become effective under the Securities Act and shall not be subject to any stop
order, and no action, suit, proceeding or investigation by the SEC to suspend
the effectiveness of the Registration Statement shall have been initiated and be
continuing, or have been threatened or be unresolved. Norwest shall have
received all state securities law or blue sky authorizations necessary to carry
out the transactions contemplated by this Agreement.
(k) Norwest shall have received from the Chief Executive Officer and Chief
Financial Officer of Goldenbanks a letter, dated as of the effective date of the
Registration Statement and updated through the date of Closing, in form and
substance satisfactory to Norwest, to the effect that:
(i) the interim quarterly financial statements of Goldenbanks
included or incorporated by reference in the Registration Statement are
prepared in accordance with generally accepted accounting principles
applied on a basis consistent with the audited financial statements of
Goldenbanks;
(ii) the amounts reported in the interim quarterly financial
statements of Goldenbanks agree with the general ledger of Goldenbanks;
(iii) the annual and quarterly financial statements of Goldenbanks
and the Goldenbanks Subsidiaries included in, or incorporated by reference
in, the Registration Statement comply as to form in all material respects
with the applicable accounting requirements of the Securities Act and the
published rules and regulations thereunder;
(iv) from June 30, 1994 (or, if later, since the date of the most
recent unaudited consolidated financial statements of Goldenbanks and the
Goldenbanks Subsidiaries as may be included in the Registration Statement)
to a date 5 days prior to the effective date of the Registration Statement
or 5 days prior to the Closing,
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there are no increases in long-term debt, changes in the capital stock or
decreases in stockholders' equity of Goldenbanks and the Goldenbanks
Subsidiaries, except in each case for changes, increases or decreases which
the Registration Statement discloses have occurred or may occur or which
are described in such letters. For the same period, there have been no
decreases in consolidated net interest income, consolidated net interest
income after provision for credit losses, consolidated income before income
taxes, consolidated net income and net income per share amounts of
Goldenbanks and the Goldenbanks Subsidiaries, or in income before equity in
undistributed income of subsidiaries, in each case as compared with the
comparable period of the preceding year, except in each case for changes,
increases or decreases which the Registration Statement discloses have
occurred or may occur or which are described in such letters;
(v) they have reviewed certain amounts, percentages, numbers of
shares and financial information which are derived from the general
accounting records of Goldenbanks and the Goldenbanks Subsidiaries, which
appear in the Registration Statement under the certain captions to be
specified by Norwest, and have compared certain of such amounts,
percentages, numbers and financial information with the accounting records
of Goldenbanks and the Goldenbanks Subsidiaries and have found them to be
in agreement with financial records and analyses prepared by Goldenbanks
included in the annual and quarterly financial statements, except as
disclosed in such letters.
(l) Goldenbanks and the Goldenbanks Subsidiaries considered as a whole
shall not have sustained since June 30, 1994 any material loss or interference
with their business from any civil disturbance or any fire, explosion, flood or
other calamity, whether or not covered by insurance.
(m) There shall be no reasonable basis for any proceeding, claim or action
of any nature seeking to impose, or that could result in the imposition on
Goldenbanks or any Goldenbanks Subsidiary of, any liability relating to the
release of hazardous substances as defined under any local, state or federal
environmental statute, regulation or ordinance including, without limitation,
the Comprehensive Environmental Response, Compensation and Liability Act of 1980
as amended, which has had or could reasonably be expected to have a Material
Adverse Effect.
(n) Since June 30, 1994, no change shall have occurred and no
circumstances shall exist which has had or might reasonably be expected to have
a material adverse effect on the financial condition, results of operations,
business or prospects of Goldenbanks and the Goldenbanks Subsidiaries taken as a
whole (other than changes in banking laws or regulations,
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or interpretations thereof, that affect the banking industry generally or
changes in the general level of interest rates).
(o) Goldenbanks shall have established the accruals and reserves described
in paragraph 4(m) hereof.
(p) The long-term debt of Goldenbanks, which is payable to Boatmen's Bank
of Oklahoma with a principal balance of $2,946,429 on June 30, 1994, shall have
been paid in full as of the Effective Time of the Merger.
(q) Goldenbanks shall own all of the outstanding capital stock of the
Goldenbanks Subsidiaries free and clear of any lien, claim, charge, option,
encumbrance or agreement with respect thereto as of the Effective Time of the
Merger.
8. EMPLOYEE BENEFIT PLANS. Each person who is an employee of Goldenbanks
or any Goldenbanks Subsidiary as of the Effective Date of the Merger
("Goldenbanks Employees") shall be eligible for participation in the employee
welfare and retirement plans of Norwest, as in effect from time to time, as
follows:
(a) Employee Welfare Benefit Plans. Each Goldenbanks Employee shall be
eligible for participation in the employee welfare benefit plans of Norwest
listed below subject to any eligibility requirements applicable to such plans
and shall enter each plan not later than the first day of the calendar quarter
which begins at least 32 days after the Effective Date of the Merger (provided,
however, that it is Norwest's intent that the transition from the Goldenbanks
plans to the Norwest plans be facilitated without gaps in coverage for
participants in the plans and without duplication of costs caused by the
continuation of such plans after coverage is available under Norwest plans):
Medical Plan
Dental Plan
Vision Plan
Short Term Disability Plan
Long Term Disability Plan
Long Term Care Plan
Flexible Benefits Plan
Basic Group Life Insurance Plan
Group Universal Life Insurance Plan
Dependent Group Life Insurance Plan
Business Travel Accident Insurance Plan
Accidental Death and Dismemberment Plan
Severance Pay Plan (except as provided below)
Vacation Program
For the purpose of determining each Goldenbanks Employee's benefit for the year
in which the Merger occurs under the Norwest vacation program, vacation taken by
an Goldenbanks Employee in the year in which the Merger occurs will be deducted
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from the total Norwest benefit. Goldenbanks Employees shall receive past
service credit for the purpose of determining benefits under the Norwest
vacation program.
No Goldenbanks Employee who is a participant in the Goldenbanks Salary
Continuation Plan on the date of this Agreement shall be eligible to participate
in the Norwest Severance Pay Plan unless such Goldenbanks Employee expressly
waives all rights under the Goldenbanks Salary Continuation Plan. Goldenbanks
Employees who participate in the Norwest Severance Pay Plan shall receive past
service credit for the purpose of determining benefits under such plan.
(b) Employee Retirement Benefit Plans.
Each Goldenbanks Employee shall be eligible for participation in the Norwest
Savings-Investment Plan (the "SIP"), subject to any eligibility requirements
applicable to the SIP (with full credit for years of past service to Goldenbanks
and the Goldenbanks Subsidiaries for the purpose of satisfying any eligibility
and vesting periods applicable to the SIP), and shall enter the SIP not later
than the first day of the calendar quarter which begins at least 32 days after
the Effective Date of the Merger.
Each Goldenbanks Employee shall be eligible for participation, as a new
employee, in the Norwest Pension Plan under the terms thereof.
9. TERMINATION OF AGREEMENT.
(a) This Agreement may be terminated at any time prior to the Time of
Filing:
(i) by mutual written consent of the parties hereto;
(ii) by either of the parties hereto upon written notice to the other
party if the Merger shall not have been consummated by October 1, 1995
unless such failure of consummation shall be due to the failure of the
party seeking to terminate to perform or observe in all material respects
the covenants and agreements hereof to be performed or observed by such
party; or
(iii) by Goldenbanks or Norwest upon written notice to the other
party if any court or governmental authority of competent jurisdiction
shall have issued a final order restraining, enjoining or otherwise
prohibiting the consummation of the transactions contemplated by this
Agreement; or
(iv) by Goldenbanks, within five business days after the meeting of
the stockholders of Goldenbanks held to vote on this Agreement and the
Merger Agreement, if the Norwest Measurement Price is less than $21. The
"Norwest Measurement Price" is defined as the average of the
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closing prices of a share of Norwest Common Stock as reported on the
consolidated tape of the New York Stock Exchange during the period of 15
trading days ending on the day immediately preceding such meeting of
stockholders. If a Common Stock Adjustment occurs with respect to the
shares of Norwest Common Stock between the date of this Agreement and the
Goldenbanks stockholder meeting date, the closing prices for Norwest Common
Stock shall be appropriately and proportionately adjusted for the purposes
of the definitions above so as to be comparable to what the price would
have been if the record date of the Common Stock Adjustment had been
immediately following the Effective Time of the Merger.
(b) Termination of this Agreement under this paragraph 9 shall not
release, or be construed as so releasing, either party hereto from any liability
or damage to the other party hereto arising out of the breaching party's wilful
and material breach of the warranties and representations made by it, or wilful
and material failure in performance of any of its covenants, agreements, duties
or obligations arising hereunder, and the obligations under paragraphs 4(g),
5(h) and 10 shall survive such termination.
10. EXPENSES. Except as otherwise provided in paragraphs 4(n) and 5(o)
hereof, all expenses in connection with this Agreement and the transactions
contemplated hereby, including without limitation legal and accounting fees,
incurred by Goldenbanks and Goldenbanks Subsidiaries shall be borne by
Goldenbanks, and all such expenses incurred by Norwest and Merger Co. shall be
borne by Norwest.
11. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns, but shall not be assignable by either party hereto without the prior
written consent of the other party hereto.
12. THIRD PARTY BENEFICIARIES. Each party hereto intends that except as
otherwise expressly provided herein, this Agreement shall not benefit or create
any right or cause of action in or on behalf of any person other than the
parties hereto.
13. NOTICES. Any notice or other communication provided for herein or
given hereunder to a party hereto shall be in writing and shall be delivered in
person or shall be mailed by first class registered or certified mail, postage
prepaid, addressed as follows:
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If to Norwest:
Norwest Corporation
Sixth and Marquette
Minneapolis, Minnesota 55479-1026
Attention: Secretary
If to Goldenbanks:
Goldenbanks of Colorado, Inc.
1301 Jackson Street
Golden, CO 80401
Attention: William J. Fortune
With a copy to:
Holland & Hart
555 Seventeenth Street - Suite 2900
Denver, CO 80201
Attention: Dennis M. Jackson
or to such other address with respect to a party as such party shall notify the
other in writing as above provided.
14. COMPLETE AGREEMENT. This Agreement and the Merger Agreement contain
the complete agreement between the parties hereto with respect to the Merger and
other transactions contemplated hereby and supersede all prior agreements and
understandings between the parties hereto with respect thereto.
15. CAPTIONS. The captions contained in this Agreement are for
convenience of reference only and do not form a part of this Agreement.
16. WAIVER AND OTHER ACTION. Either party hereto may, by a signed
writing, give any consent, take any action pursuant to paragraph 9 hereof or
otherwise, or waive any inaccuracies in the representations and warranties by
the other party and compliance by the other party with any of the covenants and
conditions herein.
17. AMENDMENT. At any time before the Time of Filing, the parties hereto,
by action taken by their respective Boards of Directors or pursuant to authority
delegated by their respective Boards of Directors, may amend this Agreement;
provided, however, that no amendment after approval by the stockholders of
Goldenbanks shall be made which changes in a manner adverse to such stockholders
the consideration to be provided to said stockholders pursuant to this Agreement
and the Merger Agreement.
18. GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with the laws of the State of Minnesota.
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19. NON-SURVIVAL OF REPRESENTATIONS AND WARRANTIES. No representation or
warranty contained in the Agreement or the Merger Agreement shall survive the
Merger or except as set forth in paragraph 9(b), the termination of this
Agreement. Paragraph 10 shall survive the Merger. This paragraph shall not
apply to covenants and agreements which by their terms are intended to be
performed after the Effective Time of the Merger.
20. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which shall
constitute but one instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
NORWEST CORPORATION GOLDENBANKS OF COLORADO, INC.
By: /s/ Kenneth R. Murray By: /s/ J. William Fortune
--------------------- -----------------------
Its: Executive Vice President Its: President and Chairman
------------------------ ----------------------
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EXHIBIT 2
STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT, dated as of the 22nd day of November, 1994 (this
"Agreement"), between Norwest Corporation, a Delaware corporation ("Grantee"),
and Goldenbanks of Colorado, Inc., a Delaware corporation ("Issuer").
WITNESSETH:
WHEREAS, Grantee and Issuer are entering into an Agreement and Plan of
Reorganization, dated as of the 22nd day of November, 1994 (the "Reorganization
Agreement"), which is being executed by the parties hereto simultaneously with
the execution of this Agreement; and
WHEREAS, as a condition and inducement to Grantee's entering into the
Reorganization Agreement and in consideration therefor, Issuer has agreed to
grant Grantee the Option (as defined below).
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements set forth herein and in the Reorganization Agreement, the parties
hereto agree as follows:
SECTION 1. Issuer hereby grants to Grantee an unconditional, irrevocable
option (the "Option") to purchase, subject to the terms hereof, up to 272,019
fully paid and nonassessable shares of Common Stock, par value $0.05 per share
("Common Stock"), of Issuer at a price per share equal to $40.50 (the "Initial
Price"); provided, however, that in the event Issuer issues or agrees to issue
(other than pursuant to options to issue Common Stock in effect as of the date
hereof) any shares of Common Stock at a price less than the Initial Price (as
adjusted pursuant to Section 5(b)), such price shall be equal to such lesser
price (such price, as adjusted as hereinafter provided, the "Option Price").
The number of shares of Common Stock that may be received upon the exercise of
the Option and the Option Price are subject to adjustment as herein set forth.
SECTION 2. (a) Grantee may exercise the Option, in whole or part, at any
time and from time to time following the occurrence of a Purchase Event (as
defined below); provided that the Option shall terminate and be of no further
force and effect upon the earliest to occur of (i) the time immediately prior to
the Effective Time, (ii) 6 months after the first occurrence of a Purchase
Event, (iii) 18 months after the termination of the Reorganization Agreement
following the occurrence of a Preliminary Purchase Event (as defined below),
(iv) termination of the Reorganization Agreement in accordance with the terms
<PAGE>
thereof prior to the occurrence of a Purchase Event or a Preliminary Purchase
Event (other than a termination of the Reorganization Agreement by Grantee
pursuant to paragraph 9 (a) (ii) thereof due to the failure of Issuer to perform
or observe in all material respects the covenants and agreements to be performed
or observed by it), or (v) 12 months after the termination of the Reorganization
Agreement by Grantee pursuant to paragraph 9(a) (ii) thereof due to the failure
of Issuer to perform or observe in all material respects the covenants and
agreements to be performed or observed by it. The events described in clauses
(i) - (v) in the preceding sentence are hereinafter collectively referred to as
an "Exercise Termination Event."
(b) The term "Preliminary Purchase Event" shall mean any of the following
events or transactions occurring after the date hereof:
(i) Issuer or any of its subsidiaries (each an "Issuer Subsidiary")
without having received Grantee's prior written consent, shall have entered
into an agreement to engage in an Acquisition Transaction (as defined
below) with any person (the term "person" for purposes of this Agreement
having the meaning assigned thereto in Sections 3 (a) (9) and 13 (d) (3) of
the Securities Exchange Act of 1934 (the "Securities Exchange Act"), and
the rules and regulations thereunder) other than Grantee or any of its
subsidiaries (each a "Grantee Subsidiary") or the Board of Directors of
Issuer shall have recommended that the shareholders of Issuer approve or
accept any Acquisition Transaction with any person other than Grantee or
any Grantee Subsidiary. For purposes of this Agreement, "Acquisition
Transaction" shall mean (x) a merger or consolidation, or any similar
transaction, involving Issuer or any of Issuer's subsidiaries, (y) a
purchase, lease or other acquisition of all or substantially all of the
assets of Issuer or any subsidiary or (z) a purchase or other acquisition
(including by way of merger, consolidation, share exchange or otherwise) of
securities representing 10% or more of the voting power of Issuer or any
subsidiary; provided that the term "Acquisition Transaction" does not
include any internal merger or consolidation involving only Issuer and/or
Issuer Subsidiaries;
(ii) Any person (other than Grantee or any Grantee Subsidiary) shall
have acquired beneficial ownership or the right to acquire beneficial
ownership of 10% or more of the outstanding shares of Common Stock (the
term "beneficial ownership" for purposes of this Agreement having the
meaning assigned thereto in Section 13(d) of the Securities Exchange Act,
and the rules and regulations thereunder); provided, however, that this
paragraph shall not apply to any shareholder of Issuer who has, on the date
hereof, beneficial ownership of at least 9.9% of the
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outstanding shares of Common Stock unless such shareholder acquires
beneficial ownership or the right to acquire beneficial ownership of an
additional 10% or more of the outstanding shares of Common Stock after the
date hereof;
(iii) Any person other than Grantee or any Grantee Subsidiary shall
have made a bona fide proposal to Issuer or its shareholders, by public
announcement or written communication that is or becomes the subject of
public disclosure, to engage in an Acquisition Transaction (including,
without limitation, any situation in which any person other than Grantee or
any subsidiary of Grantee shall have commenced (as such term is defined in
Rule 14d-2 under the Exchange Act) or shall have filed a registration
statement under the Securities Act of 1933, as amended (the "Securities
Act"), with respect to, a tender offer or exchange offer to purchase any
shares of Issuer Common Stock such that, upon consummation of such offer,
such person would own or control 10% or more of the then outstanding shares
of Issuer Common Stock (such an offer being referred to herein as a "Tender
Offer" or an "Exchange Offer", respectively));
(iv) After a proposal is made by a third party to Issuer or its
shareholders to engage in an Acquisition Transaction, Issuer shall have
breached any covenant or obligation contained in the Reorganization
Agreement and such breach would entitle Grantee to terminate the
Reorganization Agreement or the holders of Issuer Common Stock shall not
have approved the Reorganization Agreement at the meeting of such
stockholders held for the purpose of voting on the Reorganization
Agreement, such meeting shall not have been held or shall have been
canceled prior to termination of the Reorganization Agreement or Issuer's
Board of Directors shall have withdrawn or modified in a manner adverse to
Grantee the recommendation of Issuer's Board of Directors with respect to
the Reorganization Agreement;
(v) Any person other than Grantee or any Grantee Subsidiary, other
than in connection with a transaction to which Grantee has given its prior
written consent, shall have filed an application or notice with the Board
of Governors of the Federal Reserve System (the "Federal Reserve Board") or
other governmental authority or regulatory or administrative agency or
commission (each, a "Governmental Authority") for approval to engage in an
Acquisition Transaction; or
(vi) The Board of Directors of Issuer does not recommend that the
stockholders of Issuer approve the Reorganization Agreement unless the
Board does not make such recommendation because (A) the opinion which it
has received from The Wallach Company does not meet the requirements set
forth in paragraph 6(j) of the
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Reoganization Agreement, and (B) such opinion was not given in anticipation
of a Preliminary Purchase Event.
(c) The term "Purchase Event" shall mean either of the following events or
transactions occurring after the date hereof:
(i) The acquisition by any person other than Grantee or any Grantee
Subsidiary of beneficial ownership of 20% or more of the then outstanding
Common Stock; provided, however, that this paragraph shall not apply to any
shareholder of Issuer who has, on the date hereof, beneficial ownership of
at least 20% of the outstanding shares of Common Stock unless such
shareholder acquires beneficial ownership or the right to acquire
beneficial ownership of an additional 10% or more of the outstanding shares
of Common Stock after the date hereof; or
(ii) The occurrence of a Preliminary Purchase Event described in
Section 2(b)(i) except that the percentage referred to in clause (z) shall
be 20%.
(d) Issuer shall notify Grantee promptly in writing of the occurrence of
any Preliminary Purchase Event or Purchase Event; provided, however, that the
giving of such notice by Issuer shall not be a condition to the right of Grantee
to exercise the Option.
(e) In the event that Grantee is entitled to and wishes to exercise the
Option, it shall send to Issuer a written notice (the "Option Notice" and the
date of which being hereinafter referred to as the "Notice Date") specifying (i)
the total number of shares of Common Stock it will purchase pursuant to such
exercise and (ii) a period of time (that shall not be less than three business
days nor more than thirty business days) running from the Notice Date (the
"Closing Date") and a place at which the closing of such purchase shall take
place; provided, that, if prior notification to or approval of the Federal
Reserve Board or any other Governmental Authority is required in connection with
such purchase (each, a "Notification" or an "Approval," as the case may be), (a)
Grantee shall promptly file the required notice or application for approval
("Notice/Application"), (b) Grantee shall expeditiously process the
Notice/Application and (c) for the purpose of determining the Closing Date
pursuant to clause (ii) of this sentence, the period of time that otherwise
would run from the Notice Date shall instead run from the later of (x) in
connection with any Notification, the date on which any required notification
periods have expired or been terminated and (y) in connection with any Approval,
the date on which such approval has been obtained and any requisite waiting
period or periods shall have expired. For purposes of Section 2(a), any
exercise of the Option shall be deemed to occur on the Notice Date relating
thereto. On or prior to the Closing Date, Grantee shall have the right to
revoke its exercise of the Option in the event that
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the transaction constituting a Purchase Event that gives rise to such right to
exercise shall not have been consummated.
(f) At the closing referred to in Section 2(e), Grantee shall pay to
Issuer the aggregate purchase price for the shares of Common Stock specified in
the Option Notice in immediately available funds by wire transfer to a bank
account designated by Issuer; provided, however, that failure or refusal of
Issuer to designate such a bank account shall not preclude Grantee from
exercising the Option.
(g) At such closing, simultaneously with the delivery of immediately
available funds as provided in Section 2(f), Issuer shall deliver to Grantee a
certificate or certificates representing the number of shares of Common Stock
specified in the Option Notice and, if the Option should be exercised in part
only, a new Option evidencing the rights of Grantee thereof to purchase the
balance of the shares of Common Stock purchasable hereunder.
(h) Certificates for Common Stock delivered at a closing hereunder shall
be endorsed with a restrictive legend substantially as follows:
The transfer of the shares represented
by this certificate is subject to resale
restrictions arising under the Securities
Act of 1933, as amended, and to certain
provisions of an agreement between Norwest
Corporation and Goldenbanks of Colorado, Inc.
("Issuer") dated as of the 22nd day of
November, 1994. A copy of such agreement is
on file at the principal office of Issuer and
will be provided to the holder hereof without
charge upon receipt by Issuer of a written
request therefor.
It is understood and agreed that: (i) the reference to the resale restrictions
of the Securities Act in the above legend shall be removed by delivery of
substitute certificate(s) without such reference if Grantee shall have delivered
to Issuer a copy of a letter from the staff of the Securities and Exchange
Commission (the "SEC"), or an opinion of counsel, in form and substance
satisfactory to Issuer, to the effect that such legend is not required for
purposes of the Securities Act; (ii) the reference to the provisions of this
Agreement in the above legend shall be removed by delivery of substitute
certificate(s) without such reference if the shares have been sold or
transferred in compliance with the provisions of this Agreement and under
circumstances that do not require the retention of
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such reference; and (iii) the legend shall be removed in its entirety if the
conditions in the preceding clauses (i) and (ii) are both satisfied. In
addition, such certificates shall bear any other legend as may be required by
law.
(i) Upon the giving by Grantee to Issuer of an Option Notice and the
tender of the applicable purchase price in immediately available funds on the
Closing Date, Grantee shall be deemed to be the holder of record of the number
of shares of Common Stock specified in the Option Notice, notwithstanding that
the stock transfer books of Issuer shall then be closed or that certificates
representing such shares of Common Stock shall not then actually be delivered to
Grantee. Issuer shall pay all expenses and any and all United States federal,
state and local taxes and other charges that may be payable in connection with
the preparation, issue and delivery of stock certificates under this Section 2
in the name of Grantee.
SECTION 3. Issuer agrees: (i) that it shall at all times until the
termination of this Agreement have reserved for issuance upon the exercise of
the Option that number of authorized and reserved shares of Common Stock equal
to the maximum number of shares of Common Stock at any time and from time to
time issuable hereunder, all of which shares will, upon issuance pursuant
hereto, be duly authorized, validly issued, fully paid, nonassessable, and
delivered free and clear of all claims, liens, encumbrances and security
interests and not subject to any preemptive rights; (ii) that it will not, by
amendment of its articles of incorporation or through reorganization,
consolidation, merger, dissolution or sale of assets, or by any other voluntary
act, avoid or seek to avoid the observance or performance of any of the
covenants, stipulations or conditions to be observed or performed hereunder by
Issuer; (iii) promptly to take all action as may from time to time be required
(including (x) complying with all pre-merger notification, reporting and waiting
period requirements specified in 15 U.S.C. (S) 18a and regulations promulgated
thereunder and (y) in the event, under the Bank Holding Company Act of 1956, as
amended ("BHC Act"), or the Change in Bank Control Act of 1978, as amended, or
any state banking law, prior approval of or notice to the Federal Reserve Board
or to any other Governmental Authority is necessary before the Option may be
exercised, cooperating with Grantee in preparing such applications or notices
and providing such information to each such Governmental Authority as it may
require) in order to permit Grantee to exercise the Option and Issuer duly and
effectively to issue shares of Common Stock pursuant hereto; and (iv) to take
all action provided herein to protect the rights of Grantee against dilution.
SECTION 4. This Agreement (and the Option granted hereby) are
exchangeable, without expense, at the option of Grantee, upon presentation and
surrender of this Agreement at the principal office of Issuer, for other
agreements providing for Options of different denominations entitling the holder
thereof
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to purchase, on the same terms and subject to the same conditions as are set
forth herein, in the aggregate the same number of shares of Common Stock
purchasable hereunder. The terms "Agreement" and "Option" as used herein include
any agreements and related options for which this Agreement (and the Option
granted hereby) may be exchanged. Upon receipt by Issuer of evidence reasonably
satisfactory to it of the loss, theft, destruction or mutilation of this
Agreement and (in the case of loss, theft or destruction) of reasonably
satisfactory indemnification, and upon surrender and cancellation of this
Agreement if mutilated, Issuer will execute and deliver a new Agreement of like
tenor and date. Any such new Agreement executed and delivered shall constitute
an additional contractual obligation on the part of Issuer, whether or not the
Agreement so lost, stolen, destroyed or mutilated shall at any time be
enforceable by anyone.
SECTION 5. The number of shares of Common Stock purchasable upon the
exercise of the Option shall be subject to adjustment from time to time as
follows:
(a) In the event of any change in the Common Stock (other than
pursuant to an exercise of the Option) by reason of stock dividends, split-
ups, mergers, recapitalizations, combinations, subdivisions, conversions,
exchanges of shares or the like, the type and number of shares of Common
Stock purchasable upon exercise hereof shall be appropriately adjusted and
proper provision shall be made so that the number of shares of Common Stock
that remain subject to the Option plus the number of shares for which the
Option has previously been exercised shall equal 19.9% of the number of
shares of Common Stock then issued and outstanding.
(b) Whenever the number of shares of Common Stock purchasable upon
exercise hereof is adjusted as provided in this Section 5, the Option Price
shall be adjusted by multiplying the Option Price by a fraction, the
numerator of which shall be equal to the number of shares of Common Stock
purchasable prior to the adjustment and the denominator of which shall be
equal to the number of shares of Common Stock purchasable after the
adjustment.
SECTION 6. (a) Upon the occurrence of a Purchase Event that occurs prior
to an Exercise Termination Event, Issuer shall, at the request of Grantee
(whether on its own behalf or on behalf of any subsequent holder of the Option
(or part thereof) or any of the shares of Common Stock issued pursuant hereto),
promptly prepare, file and keep current a registration statement under the
Securities Act covering any shares issued and issuable pursuant to the Option
and shall use all reasonable efforts to cause such registration statement to
become effective, and to remain current and effective for a period not in excess
of 180 days from the day such registration statement first becomes effective, in
order to permit the sale or other
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disposition of any shares of Common Stock issued upon total or partial exercise
of the Option ("Option Shares") in accordance with any plan of disposition
requested by Grantee; provided, however, that Issuer may postpone filing a
registration statement relating to a registration request by Grantee under this
Section 6 for a period of time (not in excess of 60 days) if in its judgment
such filing would require the disclosure of material information that Issuer has
a bona fide business purpose for preserving as confidential. Grantee shall have
the right to demand two such registrations. The foregoing notwithstanding, if,
at the time of any request by Grantee for registration of Option Shares as
provided above, Issuer is in the process of registration with respect to an
underwritten public offering of shares of Common Stock, and if in the good faith
judgment of the managing underwriter or managing underwriters, or, if none, the
sole underwriter or underwriters, of such offering the offering or inclusion of
the Option Shares would interfere materially with the successful marketing of
the shares of Common Stock offered by Issuer, the number of Option Shares
otherwise to be covered in the registration statement contemplated hereby may be
reduced; provided, however, that after any such required reduction the number of
Option Shares to be included in such offering for the account of Grantee shall
constitute at least 33 1/3% of the total number of shares of Grantee and Issuer
covered in such registration statement; provided further, however, that if such
reduction occurs, then Issuer shall file a registration statement for the
balance as promptly as practicable thereafter as to which no reduction pursuant
to this Section 6(a) shall be permitted or occur and the Grantee shall
thereafter be entitled to one additional registration statement. Grantee shall
provide all information reasonably requested by Issuer for inclusion in any
registration statement to be filed hereunder. In connection with any such
registration, Issuer and Grantee shall provide each other with representations,
warranties, indemnities and other agreements customarily given in connection
with such registration. If requested by Grantee in connection with such
registration, Issuer and Grantee shall become a party to any underwriting
agreement relating to the sale of such shares, but only to the extent of
obligating themselves in respect of representations, warranties, indemnities and
other agreements customarily included in such underwriting agreements.
Notwithstanding the foregoing, if Grantee revokes any exercise notice or fails
to exercise any Option with respect to any exercise notice pursuant to Section
2(e), Issuer shall not be obligated to continue any registration process with
respect to the sale of Option Shares issuable upon the exercise of such Option
and Grantee shall not be deemed to have demanded registration of Option Shares.
(b) In the event that Grantee requests Issuer to file a registration
statement following the failure to obtain any approval required to exercise the
Option as described in Section 9, the closing of the sale or other disposition
of the Common Stock or other securities pursuant to such registration
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statement shall occur substantially simultaneously with the exercise of the
Option.
SECTION 7. (a) Upon the occurrence of a Purchase Event that occurs prior
to an Exercise Termination Event (provided, however, that the acquisition and
ownership by any person, in the ordinary course of business and not with the
purpose nor with the effect of changing or influencing the control of the
Issuer, nor in connection with or as a participant in any transaction having
such purpose or effect (other than a transaction with Grantee or a subsidiary of
Grantee), of some or all of the Common Stock beneficially owned as of the date
hereof by John or Mary Tracy shall not constitute a Purchase Event for purposes
of this Section 7), (i) at the request (the date of such request being the
"Option Repurchase Request Date") of Grantee, Issuer shall repurchase the Option
from Grantee at a price (the "Option Repurchase Price") equal to the amount by
which (A) the market/offer price (as defined below) exceeds (B) the Option
Price, multiplied by the number of shares for which the Option may then be
exercised, plus (C) the amount of the documented expenses incurred by Grantee in
connection with the Reorganization Agreement and the transactions contemplated
thereby, including reasonable accounting and legal fees (provided, however, that
such expenses shall not exceed $500,000) and (ii) at the request (the date of
such request being the "Option Share Repurchase Request Date") of the owner of
Option Shares from time to time (the "Owner"), Issuer shall repurchase such
number of the Option Shares from the Owner as the Owner shall designate at a
price (the "Option Share Repurchase Price") equal to the market/offer price
multiplied by the number of Option Shares so designated. The term "market/offer
price" shall mean the highest of (i) the price per share of Common Stock at
which a tender offer or exchange offer therefor has been made after the date
hereof and on or prior to the Option Repurchase Request Date or the Option Share
Repurchase Request Date, as the case may be, (ii) the price per share of Common
Stock paid or to be paid by any third party pursuant to an agreement with Issuer
(whether by way of a merger, consolidation or otherwise), (iii) the highest last
sale price for shares of Common Stock within the 180-day period ending on the
Option Repurchase Request Date or the Option Share Repurchase Request Date, as
the case may be, which is reported by The Wall Street Journal or, if not
reported thereby, another authoritative source, (iv) in the event of a sale of
all or substantially all of Issuer's assets, the sum of the price paid in such
sale for such assets and the current market value of the remaining assets of
Issuer as determined by a nationally recognized independent investment banking
firm selected by Grantee or the Owner, as the case may be, divided by the number
of shares of Common Stock of Issuer outstanding at the time of such sale. In
determining the market/offer price, the value of consideration other than cash
shall be the value determined by a nationally recognized independent investment
banking firm selected by Grantee or the Owner, as the case may be, whose
determination shall be conclusive and binding on all parties.
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(b) Grantee or the Owner, as the case may be, may exercise its right to
require Issuer to repurchase the Option and/or any Option Shares pursuant to
this Section 7 by surrendering for such purpose to Issuer, at its principal
office, a copy of this Agreement or certificates for Option Shares, as
applicable, accompanied by a written notice or notices stating that Grantee or
the Owner, as the case may be, elects to require Issuer to repurchase the Option
and/or the Option Shares in accordance with the provisions of this Section 7.
As promptly as practicable, and in any event within five business days after the
surrender of the Option and/or certificates representing Option Shares and the
receipt of such notice or notices relating thereto, Issuer shall deliver or
cause to be delivered to Grantee the Option Repurchase Price to the Owner the
Option Share Repurchase Price or the portion thereof that Issuer is not then
prohibited from so delivering under applicable law and regulation or as a
consequence of administrative policy.
(c) Issuer hereby undertakes to use its best efforts to obtain all
required regulatory and legal approvals and to file any required notices as
promptly as practicable in order to accomplish any repurchase contemplated by
this Section 7. Nonetheless, to the extent that Issuer is prohibited under
applicable law or regulation, or as a consequence of administrative policy, from
repurchasing any Option and/or any Option Shares in full, Issuer shall promptly
so notify Grantee and/or the Owner and thereafter deliver or cause to be
delivered, from time to time, to Grantee and/or the Owner, as appropriate, the
portion of the Option Repurchase Price and the Option Share Repurchase Price,
respectively, that it is no longer prohibited from delivering, within five
business days after the date on which Issuer is no longer so prohibited;
provided, however, that if Issuer at any time after delivery of a notice of
repurchase pursuant to Section 7(b) is prohibited under applicable law or
regulation, or as a consequence of administrative policy, from delivering to
Grantee and/or the Owner, as appropriate, the Option Repurchase Price or the
Option Share Repurchase Price, respectively, in full, Grantee or the Owner, as
appropriate, may revoke its notice of repurchase of the Option or the Option
Shares either in whole or in part whereupon, in the case of a revocation in
part, Issuer shall promptly (i) deliver to Grantee and/or the Owner, as
appropriate, that portion of the Option Purchase Price or the Option Share
Repurchase Price that Issuer is not prohibited from delivering after taking into
account any such revocation and (ii) deliver, as appropriate, either (A) to
Grantee, a new Agreement evidencing the right of Grantee to purchase that number
of shares of Common Stock equal to the number of shares of Common Stock
purchasable immediately prior to the delivery of the notice of repurchase less
than the number of shares of Common Stock covered by the portion of the Option
repurchased or (B) to the Owner, a certificate for the number of Option Shares
covered by the revocation.
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(d) Issuer shall not enter into any agreement with any party (other than
Grantee or a Grantee Subsidiary) for an Acquisition Transaction unless the other
party thereto assumes all the obligations of Issuer pursuant to this Section 7
in the event that Grantee or the Owner elects, in its sole discretion, to
require such other party to perform such obligations.
SECTION 8. (a) In the event that prior to an Exercise Termination Event,
Issuer shall enter into an agreement (i) to consolidate or merge with any
person, other than Grantee or a Grantee Subsidiary, and shall not be the
continuing or surviving corporation of such consolidation or merger, (ii) to
permit any person, other than Grantee or a Grantee Subsidiary, to merge into
Issuer and Issuer shall be the continuing or surviving corporation, but, in
connection with such merger, the then outstanding shares of Common Stock shall
be changed into or exchanged for stock or other securities of any other person
or cash or any other property or the then outstanding shares of Common Stock
shall after such merger represent less than 50% of the outstanding shares and
share equivalents of the merged company, or (iii) to sell or otherwise transfer
all or substantially all of its or any Material Subsidiary's assets to any
person, other than Grantee or a Grantee Subsidiary, then, and in each such case,
the agreement governing such transaction shall make proper provision so that the
Option shall, upon the consummation of such transaction and upon the terms and
conditions set forth herein, be converted into, or exchanged for, an option (the
"Substitute Option"), at the election of Grantee, of either (x) the Acquiring
Corporation (as defined below) or (y) any person that controls the Acquiring
Corporation (the Acquiring Corporation and any such controlling person being
hereinafter referred to as the "Substitute Option Issuer").
(b) The Substitute Option shall be exercisable for such number of shares
of the Substitute Common Stock (as is hereinafter defined) as is equal to the
market/offer price (as defined in Section 7) multiplied by the number of shares
of the Issuer Common Stock for which the Option was theretofore exercisable,
divided by the Average Price (as is hereinafter defined). The exercise price of
the Substitute Option per share of the Substitute Common Stock (the "Substitute
Purchase Price") shall then be equal to the Option Price multiplied by a
fraction in which the numerator is the number of shares of the Issuer Common
Stock for which the Option was theretofore exercisable and the denominator is
the number of shares for which the Substitute Option is exercisable.
(c) The Substitute Option shall otherwise have the same terms as the
Option, provided that if the terms of the Substitute Option cannot, for legal
reasons, be the same as the Option, such terms shall be as similar as possible
and in no event less advantageous to Grantee, provided further that the terms of
the Substitute Option shall include (by way of example and not limitation)
provisions for the repurchase of the
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Substitute Option and Substitute Common Stock by the Substitute Option Issuer on
the same terms and conditions as provided in Section 7.
(d) The following terms have the meanings indicated:
(i) "Acquiring Corporation" shall mean (i) the continuing or
surviving corporation of a consolidation or merger with Issuer (if other
than Issuer), (ii) Issuer in a merger in which Issuer is the continuing or
surviving person, and (iii) the transferee of all or any substantial part
of the Issuer's assets (or the assets of any Issuer subsidiary);
(ii) "Substitute Common Stock" shall mean the common stock issued by
the Substitute Option Issuer upon exercise of the Substitute Option; and
(iii) "Average Price" shall mean the average closing price of a share
of the Substitute Common Stock for the one year immediately preceding the
consolidation, merger or sale in question, but in no event higher than the
closing price of the shares of the Substitute Common Stock on the day
preceding such consolidation, merger or sale; provided that if Issuer is
the issuer of the Substitute Option, the Average Price shall be computed
with respect to a share of common stock issued by Issuer, the person
merging into Issuer or by any company which controls or is controlled by
such merging person, as Grantee may elect.
(e) In no event, pursuant to any of the foregoing paragraphs, shall the
Substitute Option be exercisable for more than 19.9% of the aggregate of the
shares of the Substitute Common Stock outstanding immediately prior to the
issuance of the Substitute Option. In the event that the Substitute Option
would be exercisable for more than 19.9% of the aggregate of the shares of
Substitute Common Stock but for this clause (e), the Substitute Option Issuer
shall make a cash payment to Grantee equal to the excess of (i) the value of the
Substitute Option without giving effect to the limitation in this clause (e)
over (ii) the value of the Substitute Option after giving effect to the
limitation in this clause (e). This difference in value shall be determined by
a nationally recognized investment banking firm selected by Grantee and the
Substitute Option Issuer.
SECTION 9. Notwithstanding Sections 2, 6 and 7, if Grantee has given the
notice referred to in one or more of such Sections, the exercise of the rights
specified in any such Section shall be extended (a) if the exercise of such
rights requires obtaining regulatory approvals (including any required waiting
periods) to the extent necessary to obtain all regulatory approvals for the
exercise of such rights, and (b) to the extent necessary to avoid liability
under Section 16(b) of the Securities Exchange Act by reason of such exercise;
provided
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that in no event shall any closing date occur more than 18 months after the
related Notice Date, and, if the closing date shall not have occurred within
such period due to the failure to obtain any required approval by the Federal
Reserve Board or any other Governmental Authority despite the best efforts of
Issuer or the Substitute Option Issuer, as the case may be, to obtain such
approvals, the exercise of the Option shall be deemed to have been rescinded as
of the related Notice Date. In the event (a) Grantee receives official notice
that an approval of the Federal Reserve Board or any other Governmental
Authority required for the purchase and sale of the Option Shares will not be
issued or granted or (b) a closing date has not occurred within 18 months after
the related Notice Date due to the failure to obtain any such required approval,
Grantee shall be entitled to exercise the Option in connection with the resale
of the Option Shares pursuant to a registration statement as provided in Section
6. Nothing contained in this Agreement shall restrict Grantee from specifying
alternative means of exercising rights pursuant to Sections 2, 6 or 7 hereof in
the event that the exercising of any such rights shall not have occurred due to
the failure to obtain any required approval referred to in this Section 9.
SECTION 10. Issuer hereby represents and warrants to Grantee as follows:
(a) Issuer has the requisite corporate power and authority to execute and
deliver this Agreement and to consummate the transactions contemplated hereby.
The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly approved by the Board of
Directors of Issuer and no other corporate proceedings on the part of Issuer are
necessary to authorize this Agreement or to consummate the transactions so
contemplated. This Agreement has been duly executed and delivered by, and
constitutes a valid and binding obligation of, Issuer, enforceable against
Issuer in accordance with its terms, except as enforceability thereof may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium and
other similar laws affecting the enforcement of creditors' rights generally and
except that the availability of the equitable remedy of specific performance or
injunctive relief is subject to the discretion of the court before which any
proceeding may be brought; and
(b) Issuer has taken all necessary corporate action to authorize and
reserve and to permit it to issue, and at all times from the date hereof through
the termination of this Agreement in accordance with its terms will have
reserved for issuance upon the exercise or the Option, that number of shares of
Common Stock equal to the maximum number of shares of Common Stock at any time
and from time to time issuable hereunder, and all such shares, upon issuance
pursuant hereto, will be duly authorized, validly issued, fully paid, non-
assessable, and will
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be delivered free and clear of all claims, liens, encumbrances and security
interests and not subject to any preemptive rights.
SECTION 11. (a) Neither of the parties hereto may assign any of its rights
or delegate any of its obligations under this Agreement or the Option created
hereunder to any other person without the express written consent of the other
party, except that Grantee may assign this Agreement to a wholly owned
subsidiary of Grantee and Grantee may sell, assign, transfer or otherwise
dispose of its rights hereunder in whole or in part after the occurrence of a
Preliminary Purchase Event (qualified as described below) if Grantee first shall
give Issuer written notice of the proposed transaction (an "Offeror's Notice"),
identifying the proposed transferee, and setting forth the terms of the proposed
transaction. An Offeror's Notice shall be deemed an offer by Grantee to Issuer,
which may be accepted within 10 business days of the receipt of such Offeror's
Notice, on the same terms and conditions and at the same price at which Grantee
is proposing to transfer such rights to a third party. The purchase of any such
rights by Issuer shall be settled within 10 business days of the date of the
acceptance of the offer and the purchase price shall be paid to Grantee in
immediately available funds; provided that if prior notification to or approval
of the Federal Reserve Board or any other regulatory authority is required in
connection with such purchase, Issuer shall promptly file the required notice or
application for approval and shall expeditiously process the same and the period
of time that otherwise would run pursuant to this sentence shall run instead
from the date on which, as the case may be, (i) any required notification period
has expired or been terminated or (ii) such approval has been obtained and, in
either event, any requisite waiting period shall have passed. In the event of
the failure or refusal of Issuer to purchase all the rights covered by the
Offeror's Notice or if the Federal Reserve Board or any other regulatory
authority disapproves Issuer's proposed purchase of such rights, Norwest may,
within 60 days from the date of the Offeror's Notice (subject to any necessary
extension for regulatory notification, approval or waiting periods), sell such
rights to such third party at no less than the price specified and on terms no
more favorable to the purchaser than those set forth in the Offeror's Notice.
The requirements of this Section 11 shall not apply to (A) a widely dispersed
public distribution, (B) a private placement in which no one party acquires the
right to purchase in excess of 2% of the voting shares of Issuer, and (C) an
assignment to a single party (e.g., a broker or investment banker) for the
purpose of conducting a widely dispersed public distribution on Grantee's
behalf. The term "Grantee" as used in this Agreement shall also be deemed to
refer to Grantee's permitted assigns. For purposes of this Section 11, the
following events or transactions occurring after the date hereof shall not
constitute a Preliminary Purchase Event provided that following consummation of
any such event or transaction no person shall beneficially own more than 32% of
the outstanding Common Stock: (1) the acquisition and ownership by any person,
in the ordinary course
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of business and not with the purpose nor with the effect of changing or
influencing the control of the Issuer, nor in connection with or as a
participant in any transaction having such purpose or effect (other than a
transaction with Grantee or a subsidiary of Grantee), of some or all of the
Common Stock beneficially owned as of the date hereof by John or Mary Tracy, and
(2) the acquisition and ownership by any person, in the ordinary course of
business and not with the purpose nor with the effect of changing or influencing
the control of the Issuer, nor in connection with or as a participant in any
transaction having such purpose or effect (other than a transaction with Grantee
or a subsidiary of Grantee), of some or all of the Common Stock beneficially
owned as of the date hereof by Lindner Fund, Inc. or the Midwest Bank Fund L.P.
Issuer shall provide Grantee, within 2 business days of receipt, a copy of any
Schedule 13D received by Issuer.
(b) Any assignment of rights of Grantee to any permitted assignee of
Grantee hereunder shall bear the restrictive legend at the beginning thereof
substantially as follows:
The transfer of the option represented
by this assignment and the related option
agreement is subject to resale restrictions
arising under the Securities Act of 1933,
as amended, and to certain provisions of an
agreement between Norwest Corporation
and Goldenbanks of Colorado, Inc. ("Issuer"),
dated as of the 22nd day of November, 1994.
A copy of such agreement is on file at the
principal office of Issuer and will be provided
to any permitted assignee of the Option without
change upon receipt by Issuer of a written
request therefor.
It is understood and agreed that (i) the reference to the resale restrictions of
the Securities Act in the above legend shall be removed by delivery of
substitute assignments without such reference if Grantee shall have delivered to
Issuer a copy of a letter from the staff of the SEC, or an opinion of counsel,
in form and substance satisfactory to Issuer, to the effect that such legend is
not required for purposes of the Securities Act; (ii) the reference to the
provisions of this Agreement in the above legend shall be removed by delivery of
substitute assignments without such reference if the Option has been sold or
transferred in compliance with the provisions of this Agreement and under
circumstances that do not require the retention of such reference; and (iii) the
legend shall be removed in its entirety if the conditions in the preceding
clauses (i) and (ii) are both satisfied. In addition, such
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assignments shall bear any other legend as may be required by law.
SECTION 12. Each of Grantee and Issuer will use its reasonable efforts to
make all filings with, and to obtain consents of, all third parties and
Governmental Authorities necessary to the consummation of the transactions
contemplated by this Agreement, including, without limitation, if necessary,
applying to the Federal Reserve Board under the BHC Act and to state banking
authorities for approval to acquire the shares issuable hereunder.
SECTION 13. The parties hereto acknowledge that damages would be an
inadequate remedy for a breach of this Agreement by either party hereto and that
the obligations of the parties shall hereto be enforceable by either party
hereto through injunctive or other equitable relief. Both parties further agree
to waive any requirement for the securing or posting of any bond in connection
with the obtaining of any such equitable relief and that this provision is
without prejudice to any other rights that the parties hereto may have for any
failure to perform this Agreement.
SECTION 14. If any term, provision, covenant or restriction contained in
this Agreement is held by a court or a federal or state regulatory agency of
competent jurisdiction to be invalid, void or unenforceable, the remainder of
the terms, provisions and covenants and restrictions contained in this Agreement
shall remain in full force and effect, and shall in no way be affected, impaired
or invalidated. If for any reason such court or regulatory agency determines
that Grantee is not permitted to acquire, or Issuer is not permitted to
repurchase pursuant to Section 7, the full number of shares of Common Stock
provided in Section 1(a) (as adjusted pursuant hereto), it is the express
intention of Issuer to allow Grantee to acquire or to require Issuer to
repurchase such lesser number of shares as may be permissible, without any
amendment or modification hereof.
SECTION 15. All notices, requests, claims, demands and other
communications hereunder shall be deemed to have been duly given when delivered
in person, by cable, telegram, telecopy or telex, or by registered or certified
mail (postage prepaid, return receipt requested) at the respective addresses of
the parties set forth in the Reorganization Agreement.
SECTION 16. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware.
SECTION 17. This Agreement may be executed in two or more counterparts,
each of which shall be deemed to be an original, but all of which shall
constitute one and the same agreement and shall be effective at the time of
execution.
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SECTION 18. Except as otherwise expressly provided herein, each of the
parties hereto shall bear and pay all costs and expenses incurred by it or on
its behalf in connection with the transactions contemplated hereunder, including
fees and expenses of its own financial consultants, investment bankers,
accountants and counsel.
SECTION 19. Except as otherwise expressly provided herein or in the
Reorganization Agreement, this Agreement contains the entire agreement between
the parties with respect to the transactions contemplated hereunder and
supersedes all prior arrangements or understandings with respect thereof,
written or oral. The terms and conditions of this Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective
successors and permitted assigns. Nothing in this Agreement, expressed or
implied, is intended to confer upon any party, other than the parties hereto,
and their respective successors except as assigns, any rights, remedies,
obligations or liabilities under or by reason of this Agreement, except as
expressly provided herein.
SECTION 20. Capitalized terms used in this Agreement and not defined
herein but defined in the Reorganization Agreement shall have the meanings
assigned thereto in the Reorganization Agreement.
SECTION 21. Nothing contained in this Agreement shall be deemed to
authorize Issuer or Grantee to breach any provision of the Reorganization
Agreement.
SECTION 22. In the event that any selection or determination is to be made
by Grantee or the Owner hereunder and at the time of such selection or
determination there is more than one Grantee or Owner, such selection shall be
made by a majority in interest of such Grantee or Owners.
SECTION 23. In the event of any exercise of the option by Grantee, Issuer
and such Grantee shall execute and deliver all other documents and instruments
and take all other action that may be reasonably necessary in order to
consummate the transactions provided for by such exercise.
SECTION 24. Except to the extent Grantee exercises the Option, Grantee
shall have no rights to vote or receive dividends or have any other rights as a
shareholder with respect to shares of Common Stock covered hereby.
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IN WITNESS WHEREOF, each of the parties has caused this Stock Option
Agreement to be executed on its behalf by their officers thereunto duly
authorized, all as of the date first above written.
NORWEST CORPORATION
By:/s/ Kenneth R. Murray
----------------------------
Name:Kenneth R. Murray
Title:Executive Vice President
GOLDENBANKS OF COLORADO, INC.
By:/s/ J. William Fortune
----------------------------
Name:J. William Fortune
Title:President and Chairman
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