FORM 10-QSB
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
(X) QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(D) OF
THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended June 30, 1999
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF
THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from ______________ to ________________
Commission File No. 0-21078
UNION BANKSHARES, LTD.
(Exact name of Registrant as specified in its charter)
DELAWARE 84-0986148
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(State of other jurisdiction of (I.R.S Employer)
incorporation of organization) Identification No.)
1825 LAWRENCE STREET, SUITE 444, DENVER, CO 80202
(Address of principal executive offices)
(Zip Code)
(303) 298-5352
(Registrant's telephone number, including area code)
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Not Changed
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Former name, former address and former fiscal year, if changed since last
report.
Check whether the issuer (1) filed all reports required to be filed by Section
13 or 15(d) of the Exchange Act during the past twelve months (or for such
shorter period that the registrant was required to file such reports), and (2)
has been subject to such filing requirements for the past 90 days. YES X NO .
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At August 12, 1999, there were 2,350,514 shares of common stock outstanding.
Transitional Small Business Disclosure Format (Check one): YES NO X
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UNION BANKSHARES, LTD.
INDEX
PAGE
PART I - FINANCIAL INFORMATION
Item 1. Financial Statements...................................... 3
Item 2. Management's Discussion and Analysis of
Financial Condition and Results of
Operations................................................ 7
PART II - OTHER INFORMATION............................................... 16
SIGNATURES................................................................ 17
2
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Part I - Financial Information
Item 1 - Financial Statements
June 30, 1999
UNION BANKSHARES, LTD. AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF CONDITION
June 30, December 31,
ASSETS 1999 1998
(Unaudited)
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<S> <C> <C>
Cash and cash equivalents:
Cash and due from banks $ 16,033,000 $ 18,914,000
Federal funds sold 4,900,000 26,505,000
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Total cash and cash equivalents 20,933,000 45,419,000
Investment securities:
Investment securities held to maturity 35,577,000 27,469,000
Investment securities available for sale 107,585,000 77,594,000
Other investments 1,930,000 988,000
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Total investment securities 145,092,000 106,051,000
Loans:
Commercial 114,844,000 105,618,000
Real estate mortgage 2,925,000 4,101,000
Real estate construction 20,099,000 12,881,000
Consumer 22,278,000 24,595,000
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Total loans 160,146,000 147,195,000
Less: allowance for loan losses (2,715,000) (2,678,000)
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157,431,000 144,517,000
Mortgage loans held-for-sale -- 4,285,000
Excess of investment in subsidiary over net
assets acquired 6,899,000 7,169,000
Furniture, equipment and improvements, net 3,330,000 3,276,000
Accrued interest receivable 2,445,000 1,542,000
Other assets 3,730,000 2,318,000
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TOTAL ASSETS $ 339,860,000 $ 314,577,000
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LIABILITIES AND STOCKHOLDERS' EQUITY
Deposits:
Demand (noninterest-bearing) $ 79,414,000 $ 78,017,000
NOW 24,552,000 25,852,000
Money Market 66,858,000 65,452,000
Savings 18,740,000 19,221,000
Time 80,409,000 83,108,000
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Total deposits 269,973,000 271,650,000
Federal funds purchased -- --
Notes payable 38,600,000 10,000,000
Guaranteed preferred beneficial interests
in Company's debentures 10,304,000 10,304,000
Accrued interest payable 436,000 471,000
Other liabilities 1,159,000 1,808,000
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Total liabilities 320,472,000 294,233,000
Stockholders' equity
Common stock 2,000 2,000
Common stock surplus 9,672,000 9,678,000
Retained earnings 10,651,000 10,021,000
Valuation allowance (937,000) 643,000
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Total stockholders' equity 19,388,000 20,344,000
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TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY $ 339,860,000 $ 314,577,000
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UNION BANKSHARES, LTD. AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF EARNINGS
(Unaudited)
Six months ended Three months ended
June 30, June 30,
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1999 1998 1999 1998
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<S> <C> <C> <C> <C>
INTEREST INCOME:
Interest and fees on loans $ 7,051,000 $ 6,155,000 $ 3,647,000 $ 3,089,000
Interest on investment securities:
U.S. government agencies and corporations 3,229,000 1,406,000 1,748,000 741,000
States and other political subdivisions 666,000 664,000 360,000 373,000
Interest on federal funds sold
and interest bearing deposits at other banks 227,000 259,000 81,000 190,000
----------- ----------- ----------- -----------
Total interest income 11,173,000 8,484,000 5,836,000 4,393,000
INTEREST EXPENSE:
Interest on deposits 3,504,000 2,429,000 1,734,000 1,276,000
Interest on federal funds purchased 130,000 2,000 104,000 0
Interest on notes payable 758,000 394,000 437,000 194,000
----------- ----------- ----------- -----------
Total interest expense 4,392,000 2,825,000 2,275,000 1,470,000
----------- ----------- ----------- -----------
NET INTEREST INCOME BEFORE PROVISION FOR
LOAN LOSS 6,781,000 5,659,000 3,561,000 2,923,000
PROVISION FOR LOAN LOSS 47,000 187,000 2,000 88,000
----------- ----------- ----------- -----------
NET INTEREST INCOME AFTER PROVISION FOR
LOAN LOSS 6,734,000 5,472,000 3,559,000 2,835,000
NONINTEREST INCOME:
Service charges 322,000 188,000 155,000 96,000
Gain (loss) on sale of securities available for sale 266,000 35,000 93,000 (3,000)
Other 351,000 247,000 159,000 134,000
----------- ----------- ----------- -----------
Total non interest income 939,000 470,000 407,000 227,000
----------- ----------- ----------- -----------
NONINTEREST EXPENSE:
Salaries and employee benefits 3,550,000 2,671,000 1,820,000 1,347,000
Amortization of investment in subsidiary
over net assets acquired 269,000 113,000 134,000 57,000
Occupancy and equipment 977,000 664,000 515,000 350,000
Other 2,052,000 1,475,000 1,067,000 819,000
----------- ----------- ----------- -----------
Total non interest expense 6,848,000 4,923,000 3,536,000 2,573,000
----------- ----------- ----------- -----------
INCOME BEFORE INCOME TAX EXPENSE 825,000 1,019,000 430,000 489,000
INCOME TAX EXPENSE (Note 3) 234,000 136,000 133,000 99,000
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NET INCOME $ 591,000 $ 883,000 $ 297,000 $ 390,000
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EARNINGS PER COMMON SHARE BASIC: (Note 4)
Net income per share $ 0.25 $ 0.38 $ 0.13 $ 0.17
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Weighted average number of common shares outstanding 2,348,042 2,337,395 2,350,338 2,338,256
=========== =========== =========== ===========
EARNINGS PER COMMON SHARE DILUTED (Note 4)
Net income per share $ 0.23 $ 0.34 $ 0.11 $ 0.15
=========== =========== =========== ===========
Weighted average number of common shares outstanding 2,584,824 2,635,105 2,587,121 2,635,965
=========== =========== =========== ===========
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UNION BANKSHARES, LTD. AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME
FOR THE THREE AND SIX MONTHS ENDED JUNE 30, 1999 AND 1998
Six months ended Three months ended
June 30, June 30,
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1999 1998 1999 1998
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<S> <C> <C> <C> <C>
NET INCOME $ 591,000 $ 883,000 $ 297,000 $ 390,000
OTHER COMPREHENSIVE INCOME (LOSS)
Unrealized appreciation (depreciation)
on available-for-sale securities, net
of income taxes (1,747,000) 275,000 (1,607,000) 254,000
LESS: reclassification adjustment for
realized (gain) losses included in net
income, net of income taxes 167,000 22,000 58,000 (2,000)
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COMPREHENSIVE INCOME ($ 989,000) $ 1,180,000 ($1,252,000) $ 642,000
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UNION BANKSHARES, LTD. AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF CASH FLOWS
FOR THE THREE MONTHS ENDED JUNE 30, 1999
(Unaudited)
June 30,
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1999 1998
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<S> <C> <C>
Net cash provided (used) by operating activities ($ 2,131,000) $ 604,000
CASH FLOWS FROM INVESTING ACTIVITIES:
Proceeds from maturities of available-for-sale
securities 4,509,000 10,882,000
Proceeds from maturities of held-to-maturity
securities 11,076,000 3,525,000
Proceeds from sale of available-for-sale
securities 16,070,000 2,207,000
Purchase of available-for-sale securities (67,998,000) (35,889,000)
Purchase of loans held-to-maturity (3,958,000) (705,000)
Purchase of loans held-for-sale (6,758,000) (14,564,000)
Proceeds from sale of loans held-for-sale 11,043,000 15,241,000
Purchase of other investments (942,000) (36,000)
Net (increase) decrease in loans (12,007,000) 1,400,000
Purchase of furniture and equipment (346,000) (615,000)
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Net cash used in investing activities (49,311,000) (18,554,000)
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CASH FLOWS FROM FINANCING ACTIVITIES:
Increase (decrease) in deposits (1,677,000) 32,043,000
Increase (decrease) in fed funds purchased -- --
New borrowings long-term debt 33,600,000 --
Repayments of long-term debt (5,000,000) (800,000)
Proceeds from issuance of common stock 33,000 26,000
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Net cash provided by financing activities 26,956,000 31,269,000
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Net increase in cash and cash equivalents (24,486,000) 13,319,000
Cash and cash equivalents, beginning of year 45,419,000 26,714,000
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Cash and cash equivalents, end of quarter $ 20,933,000 $ 40,033,000
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ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
The following commentary presents management's discussion and analysis of the
Company's financial performance and financial condition for the second quarter
and six months ended June 30, 1999. The discussion is a supplement to the
unaudited Consolidated Financial Statements and the consolidated financial
statements and the management's discussion and analysis of financial condition
and results of operations included in the Company's Form 10-KSB for the year
ended December 31, 1998, and should be read in conjunction therewith.
GENERAL
As previously announced, on August 9, 1999, the Company entered into an
agreement providing for the acquisition of Union Bankshares, Ltd. by Gold Banc
Corporation, Inc.
The agreement provides for the acquisition of all the Common Stock of the
Company, including shares subject to option, for a purchase price of $23.05 per
share, to be paid in shares of Gold Banc common stock. On August 9, 1999, the
closing price on the NASDAQ Stock Market for the Company's Common Stock was
$12.50. The exchange ratio will be determined by dividing $23.05 by the average
price for Gold Banc common stock during the 10-day trading period ending three
days prior to closing, unless the average price is less than $13 or greater than
$16, in which case the average price shall be fixed at $13 or $16, respectively.
On August 9, 1999, the closing price on the NASDAQ Stock Market for Gold Banc
Common Stock was $11.50. If the average price of Gold Banc common stock falls
below $11 for a period of 10 trading days immediately prior to approval by the
Company's stockholders, the Company will be entitled to terminate the
transaction. The transaction will be structured as a tax-free reorganization
and will be accounted for as pooling-of-interest.
The transaction is subject to the approval of the shareholders of the Company
and Gold Banc and the approval of certain regulatory authorities, among other
customary terms and conditions. The transaction is expected to close in the
fourth quarter of 1999.
RESULTS OF OPERATIONS
SIX MONTHS ENDED JUNE 30, 1999 COMPARED TO SIX MONTHS ENDED JUNE 30, 1998
OVERVIEW: Union Bankshares, Ltd. (the "Company") reported net income of $591,000
for the six months ended June 30, 1999, a decrease of 23.9% from net income of
$883,000 for the first six months of 1998. Earnings were positively impacted in
the first six months of 1999 by a $1,122,000 increase in net interest income, a
$140,000 decrease in provision for loan loss, a $231,000 increase in gain on
sale of securities available for sale, and a $238,000 increase in other
noninterest income. These improvements were offset by a $1,925,000 increase in
noninterest expense and a $98,000 increase in income tax expense for the six
months ended June 30, 1999. Net income per share (diluted) was $.23 for the six
months ended June 30, 1999 compared to $.34 per share for the 1998 period.
Return on average assets and average equity were .37% and 5.73%, respectively,
for the six months ended June 30, 1999 compared to .82% and 9.48%, respectively,
for the first six months of 1998.
During the first six months of 1999, the Company's cash and Federal Funds sold
decreased $24.5 million, its securities portfolio increased $39.0 million, its
net loan portfolio increased $12.9 million, its deposits decreased $1.7 million,
and its notes payable to the Federal Home Loan Bank of Topeka ("FHLB") increased
$28.6 million.
INTEREST INCOME: Interest income increased $2,689,000, or 31.7%, to $11,173,000
for the period ended June 30, 1999 from $8,484,000 for the comparable 1998
period. This increase results from the increase in the Company's interest
earning assets from continuing operations and the acquisition of Lakewood State
Bank ("LSB") in December, 1998. The Company's net yield on interest earning
assets on a fully tax equivalent basis was 7.93% for the first six months of
1999, which reflects a decrease of 92 basis points (each basis point equals
1/100 of 1%) from the comparable 1998 period. The average yield on loans
decreased from 9.97% in the 1998 period to 9.52% in the 1999 period, and the
average yield on securities held by the Company decreased from 7.19% in the 1998
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period to 6.38% in the 1999 period. Interest income on loans was $896,000
greater in the 1999 period and interest income on securities increased
$1,823,000 in the 1999 period.
INTEREST EXPENSE: Interest expense increased $1,567,000, or 55.5%, to $4,392,000
for the six months ended June 30, 1999 from $2,825,000 for the six months ended
June 30, 1998. This increase is primarily due to a $67.4 million increase in
average interest bearing deposit accounts ($30.0 million from the acquisition of
LSB), a $10.3 million increase in notes payable due to the issuance of the trust
preferred securities in December, 1998, a $5.7 million increase in average
Federal Funds purchased, offset by a $1.8 million decrease in average notes
payable to NationsBank (which was paid off in December, 1998). Average rates
paid on interest bearing deposits decreased 19 basis points to 3.57% in the
first six months of 1999 from 3.76% in the first six months of 1998.
NET INTEREST INCOME: Net interest income before provision for loan loss was
$6,781,000 for the six months ended June 30, 1999, an increase of $1,122,000, or
19.8%, over the first six months of 1998. Net interest margin decreased 110
basis points from 6.00% in the 1998 period to 4.90% in the 1999 period. The
increase in net interest income is primarily due to an $896,000 increase in
interest income on loans and a $1,825,000 increase in interest income on
securities, partially offset by a $32,000 decrease in interest income on Federal
Funds sold and a $1,567,000 increase in interest expense. The Company's average
cost of funds for the six months ended June 30, 1999 was 5 basis points lower
than the comparable 1998 period. The Company's average yield on interest earning
assets decreased 92 basis points in the 1999 period compared to the 1998 period,
from 8.85% to 7.93%.
NONINTEREST INCOME: Noninterest income increased $469,000, or 99.8%, for the six
months ended June 30, 1999 to $939,000 from $470,000 for the six months ended
June 30, 1998. This increase was due to: (i) a $231,000 increase in the gain on
sale of securities available for sale; and (ii) a $134,000 increase in service
charge income and a $104,000 increase in other noninterest income ($147,000 due
to the acquisition of LSB).
NONINTEREST EXPENSE: Noninterest expense increased $1,925,000, or 39.1%, for the
first six months of 1999 to $6,848,000 compared to $4,923,000 in the first six
months of 1998. This increase is primarily the result of: (i) increases in
salaries and benefits relating primarily to staffing expenses for the two new
branches and the branch resulting from the acquisition of LSB, and annual merit
increases; (ii) increases in occupancy and equipment relating to the new
branches and the acquisition of LSB; (iii) increase in goodwill expense due to
the acquisition of LSB; and (iv) increases in other miscellaneous noninterest
expenses relating to the new branches and the acquisition of LSB.
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INCOME TAX EXPENSE: Income tax expense increased $98,000, or 72.1%, for the
first six months of 1999. This increase is primarily the result of a tax credit
recorded in 1998 for options exercised during 1997 and the stock acquired was
sold within twelve months.
THREE MONTHS ENDED JUNE 30, 1999 COMPARED TO THREE MONTHS ENDED JUNE 30, 1998
OVERVIEW: The Company reported net income of $297,000 for the three months ended
June 30, 1999, an decrease of 33.1% from net income of $390,000 for the
comparable 1998 period. Net income was $.11 per share (diluted) for the three
month period ended June 30, 1999, compared to $.15 per share (diluted) for the
1998 period. Return on average assets and average equity were .37% and 5.74%,
respectively, for the three month period ended June 30, 1999, compared to .70%
and 8.25%, respectively, for the 1998 period.
During the three months ended June 30,1999, the Company's cash and Federal Funds
sold increased $2.8 million, its securities portfolio increased $5.1 million,
its net loan portfolio increased $16.9 million, its deposits decreased $7.5
million, and its notes payable increased $33.6 million.
INTEREST INCOME: Interest income increased $1,433,000, or 32.9%, to $5,836,000
for the three month period ended June 30, 1999 from $4,393,000 for the
comparable 1998 period. This increase results from the increase in the Company's
interest earning assets and the acquisition of LSB. The Company's net yield on
interest earning assets on a fully tax equivalent basis was 8.02% for the three
month period ended June 30, 1999, which reflects an decrease of 92 basis points
from the comparable 1998 period. The average yield on loans decreased from
10.00% in the 1998 period to 9.62% in the 1999 period, and the average yield on
securities held by the Company decreased from 7.61% in the 1998 period to 6.44%
in the 1999 period. Interest income on loans was $558,000 greater in the 1999
period and interest income on securities increased $994,000 in the 1999 period.
INTEREST EXPENSE: Interest expense increased $805,000, or 54.8%, to $2,275,000
for the three month period ended June 30, 1999 from $1,470,000 for the three
month period ended June 30, 1998. This increase was primarily due to a $64.1
million increase in average interest bearing deposit accounts ($30.0 million
from the acquisition of LSB), a $10.3 million increase in notes payable due to
the issuance of the trust preferred securities in December, 1998, a $4.3 million
increase in average notes payable to the FHLB, offset by a $1.6 million decrease
in average notes payable to NationsBank (which was paid off in December, 1998).
Average rates paid on interest bearing deposits
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decreased 31 basis points to 3.52% in the three month period ended June 30, 1999
from 3.83% in the three month period ended June 30, 1998.
NET INTEREST INCOME: Net interest income before provision for loan loss was
$3,561,000 for the three month period ended June 30, 1999, an increase of
$638,000, or 21.8%, over the comparable period of 1998. Net interest margin
decreased 96 basis points between the periods from 6.05% in the 1998 period to
5.09% in the 1999 period. The increase in net interest income is primarily due
to a $558,000 increase in interest income on loans and a $994,000 increase in
interest income on securities, offset by an $805,000 increase in interest
expense. The Company's average cost of funds for the three month period ended
June 30, 1999 was 14 basis points lower than in the comparable 1998 period. The
Company's average yield on earning assets decreased 92 basis points in the 1999
period compared to the 1998 period, from 8.94% to 8.02%.
NONINTEREST INCOME: Noninterest income increased $180,000, or 79.3%, for the
three month period ended June 30, 1999 to $407,000 from $227,000 for the three
month period ended June 30, 1998. This increase was primarily due to: (i) a
$96,000 increase in the gain on sale of securities available for sale; and
(ii) a $59,000 increase in service charge income and a $25,000 increase in other
noninterest income ($54,000 due to the acquisition of LSB).
NONINTEREST EXPENSE: Noninterest expense increased $963,000, or 37.4%, for the
three month period ended June 30, 1999 to $3,536,000 compared to $2,573,000 in
the three month period ended June 30, 1998. This increase is primarily the
result of: (i) increases in salaries and benefits relating primarily to staffing
expenses for the two new branches and the branch resulting from the acquisition
of LSB, and annual merit increases; (ii) increases in occupancy and equipment
relating to the new branches and the acquisition of LSB; (iii) increase in
goodwill expense due to the acquisition of LSB; and (iv) increases in other
miscellaneous noninterest expenses relating to the new branches and the
acquisition of LSB.
PROVISION FOR LOAN LOSS
The Company charged $47,000 to Provision for Loan Loss in the first six months
of 1999 and $187,000 for the same period in 1998. The ratio of loan loss reserve
to total loans was 1.70% at June 30, 1999 and 1.83% at June 30, 1998. The
Company sets its loan loss reserve at a level considered adequate to provide for
anticipated loan losses based on management's assessment of various factors
affecting the loan portfolio. These factors include a review of problem loans,
business conditions, loan loss experience and an overall evaluation of the
quality of the collateral, holding and disposal costs and costs of capital.
Provision for loan loss is a direct charge against income and is determined by
management based on the adequacy of the loan loss reserve.
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LIQUIDITY AND SOURCES OF FUNDS
The Company's total assets increased 8.0% to $339.9 million at June 30, 1999
from $314.6 million at December 31, 1998. During the six months ended June 30,
1999 deposits decreased $1.7 million to $270.0 million at June 30, 1999 from
$271.7 million at December 31, 1998. None of the Company's deposits at June 30,
1999 were brokered deposits.
In December, 1998, Union Bankshares Capital Trust I, a newly formed Delaware
business trust completed the sale of $10.3 million of 9% Cumulative Trust
Preferred Securities, guaranteed on a subordinated basis by the Company. The
Company contributed $7 million of the proceeds of the offering to the Bank to
finance the acquisition of Lakewood State Bank. The remainder of the proceeds
was used for general corporate purposes, including the payoff of all outstanding
amounts to NationsBank under the Loan Agreement. The Company also terminated the
revolving line of credit it maintained with NationsBank.
The Company established a revolving line of credit with Gold Banc in an amount
not to exceed $3.0 million. Any monies advanced under this line would be used
solely for capital needs of the Company or to purchase the stock of banks or
bank holding companies. This line of credit will be available for one year only,
with renewals to be negotiated each year. There is currently no amount
outstanding under this line of credit.
On January 14, 1998, the Bank borrowed $10 million from the Federal Home Loan
Bank of Topeka (the "FHLB") in the form of two $5 million loans. The purpose of
securing these loans was primarily to provide liquidity and allow the Bank to
limit its exposure relative to the Available for Sale portion of its securities
portfolio, as discussed below. The first $5 million enabled management to reduce
its current daily purchase of Federal Funds from approximately $8 million to $3
million. With the remaining $5 million, the Bank purchased approximately $5
million in short-term U.S. Government securities, which were placed in the
Available for Sale portfolio. This allowed the bank to transfer approximately $5
million in long-term GNMA mortgage pool securities with relatively high coupon
yields to Held to Maturity, which limits the Bank's capital exposure should
interest rates increase. The loans are structured as follows: $5 million at
6.34%, maturing January 14, 1999; and $5 million at 6.50%, maturing January 14,
2000. The loans cannot be prepaid without a prepayment penalty. Interest on
these notes is due monthly. The Company expects that maturities of securities
held in the Available for Sale portfolio will be adequate to fund repayment of
these loans. On January 14, 1999, the Bank repaid the $5 million which matured.
During the second quarter of 1999, the Bank borrowed $33.6 million from the FHLB
with rates ranging from 4.90% to 5.11% and maturities ranging from one day to
six months. The purpose for these loans was to use an alternative source of
funding to fund current loan growth at a time when the Bank's deposits have not
increased and liquidation of a portion of the Bank's bond portfolio was not
prudent. The Company expects that
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these loans will be repaid with liquidity from normal increases in deposits
coupled with liquidity from the Bank's bond portfolio.
Management anticipates that the Company will continue to rely primarily on
customer deposits, sales and maturities of investment securities, loan sales and
loan repayments, as well as retained earnings to provide liquidity. These funds
are used to make loans, to acquire investment securities and other assets and to
fund continuing operations. The Company believes that its customer deposits will
continue to provide a strong source of liquidity because of the high percentage
of core deposits, many of which are held as compensating balances under
long-standing loan relationships. As a secondary source of funds, management
uses federal funds and its membership in the FHLB.
ASSET QUALITY
The Company's lending activities are guided by its Statement of Lending Policies
and Procedures. These policies are annually reviewed and approved by the Bank's
Board of Directors. The Bank employs an internal auditor to monitor its internal
supervision and audits of its lending operation and the Company supplements
these internal procedures with independent examinations performed by
professional consultants and auditors. The Company monitors concentrations of
loans by collateral, purpose and industry. The Company has no significant
exposure to highly leveraged transactions and has no foreign credits in its loan
portfolio.
Total nonperforming assets were $37,000 and $15,000 at June 30, 1999 and
December 31, 1998, respectively. Other Real Estate Owned (OREO) was $158,000 and
$0 at June 30, 1999 and December 31, 1998, respectively. At June 30, 1999,
securities held to maturity were $35.6 million, or 24.5% of the total portfolio,
and securities available for sale totaled $107.6 million, or 74.2% of the total
portfolio. Other securities (investment in FHLB stock) totaled $1.9 million, or
1.3% of the total portfolio. Securities available for sale are those securities
which may be sold in response to changes in interest rates, changes in the
Company's short term liquidity needs or changes in prepayment risk, and are
stated at the lower of cost or estimated market value. At June 30, 1999, the
carrying value of investments available for sale exceeded market value by
approximately $1,446,000.
Securities held to maturity are considered longer term assets which are normally
held until maturity and are carried at amortized cost. The market value of
securities designated as held to maturity exceeded carrying value by
approximately $189,000 at June 30, 1999. U.S. government securities make up
$71.9 million, or 49.5% of the investment portfolio, mortgage backed securities
make up $47.6 million, or 32.8% of the investment portfolio, obligations of
states and political subdivisions (municipal securities), comprise $23.7
million, or 16.3% of the investment portfolio, and other investments make up
$1.9 million, or 1.4% of the investment portfolio at June 30, 1999.
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As noted in the Company's Form 10-KSB for the year ended December 31, 1998,
management has generally sought to control the exposure of the Company's
securities portfolio to rising interest rates by maintaining a position within a
narrow range around an "earnings neutral position" (i.e. the mix of assets and
liabilities that generate a net interest margin that is least affected by
interest rate changes). The Company uses a measurement tool known as dollar
duration to help maintain an earnings neutral position. As of June 30, 1999, the
dollar duration of the investment portfolio was 5.03 compared to 3.50 at
December 31, 1998. This increase in dollar duration resulted from the partial
replacement of securities which were sold, matured or called during the first
six months of 1999 and the net addition of $39.0 million of securities with the
same or lower yields but with longer maturities. The Company may also engage in
hedging transactions to control interest rate risk. The effect of these efforts
in any given period may be to negatively impact reported net noninterest income
and the interest earned on the securities.
CAPITAL RESOURCES
The Company's capital adequacy is a direct measurement of the overall financial
strength of the Company and its ability to absorb adverse market conditions. In
addition, the capital position of the Company provides a mechanism to promote
public confidence in the Company and the Bank.
The Company's total stockholders' equity decreased $956,000 to $19.4 million at
June 30, 1999 from $20.3 million at December 31, 1998. This decrease in
stockholders' equity was due to the retention of earnings in the current year
and the exercise of options to purchase 6,000 shares of common stock, offset by
the net effect of FAS 115 which requires financial institutions to mark their
available for sale securities portfolio to market.
The Federal Reserve Board and FDIC guidelines require a minimum of a 4% Tier 1
core capital to risk-weighted assets ratio and an 8% total qualifying capital to
risk-weighted assets ratio. Due to the Company's high level of capital and the
level of risk in its current asset mix, the Company's risk based capital ratios
exceed the regulatory minimum ratios. The Company's Tier 1 core capital to risk
weighted assets was 10.12% at June 30, 1999 and its total qualifying capital to
risk weighted assets was 13.50%. As of June 30, 1999 the Bank also exceeded the
minimum regulatory risk based capital ratios.
IMPACT OF YEAR 2000
Some computer programs are written using two digits rather than four to define
the applicable year. As a result, those computer programs have time-sensitive
software that recognizes a date using "00" as the year 1900 rather than 2000.
This could cause a system failure or miscalculation causing disruption of
operation including, among other things, a temporary inability to process
transactions, pay invoices or engage in similar, normal business activities.
13
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In February 1998, the Company adopted a Year 2000 Project Management Plan in
recognition of the potential problems that all computer systems may have when
the date January 1, 2000 arrives. As part of the implementation of this plan, in
April 1998, the Company completed an assessment to determine whether it would
have to modify or replace portions of its hardware and software so that its
computer systems will function properly with respect to dates in the year 2000
and thereafter. By June 1998, the Company had completed all required renovations
of its critical internal information technology ("IT") systems and by March
1999, had completed compliance testing of such systems. All critical IT and
non-IT systems have tested Year 2000 compliant. Testing is continuing on
non-critical systems and all reasonable steps required to achieve compliance of
such systems will be taken. The steps remaining in the total Year 2000 project
are not estimated to have a material impact on the Company's financial position
or the results of its operations. The Company estimates that its total Year 2000
project cost will be approximately $500,000. These costs will be expensed as
incurred and approximately $470,000 has been incurred as of June 30.
1999.
The Company has initiated formal communications with all of its significant
suppliers and large customers and is continuing its assessment of the extent to
which the Company is vulnerable to those third parties' failure to remediate
their own Year 2000 issues. The Company's total Year 2000 project cost and
estimates for completion include the estimated costs and time associated with
the impact of a third party's Year 2000 issue and are based on presently
available information. However, there can be no guarantee that the systems of
other companies on which the Company's systems rely will be timely converted, or
that a failure to convert by another company, or a conversion that is
incompatible with the Company's systems, would not have a material adverse
affect on the Company.
The Company has adopted a contingency plan in the event that third parties
significant to the Company are not timely Year 2000 compliant. The Company has
determined that the most reasonably likely worst-case scenario would include
power and communications failures. Under the contingency plan, the Company
believes that it could carry out its core- business activities for an indefinite
period in such an event. The Company's plan also addresses contingencies related
to liquidity and currency demands which may arise.
The costs of the project and the date on which the Company believes it will
complete the Year 2000 modifications are based on management's best estimates
which were derived utilizing numerous assumptions of future events, including
the continued availability of certain resources, the ability to locate and
correct all relevant computer codes and similar uncertainties. Therefore, there
can be no assurance that these estimates will be achieved and actual results
could differ materially from those anticipated.
14
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"SAFE HARBOR" STATEMENT UNDER THE PRIVATE SECURITIES LITIGATION REFORM
ACT OF 1995.
Statements which are not historical facts contained in this document are forward
looking statements that involve risks and uncertainties that could cause actual
results to differ from projected results. Factors that could cause actual
results to differ materially include, among others: management's ability to
integrate the operations of Lakewood State Bank, continued success of the Bank's
branching strategy, general economic conditions, economic conditions in the
Denver metropolitan area, the monetary policy of the Federal Reserve Board,
changes in interest rates, inflation, competition in the banking business,
changes in the state and federal regulatory regime applicable to the Company's
and the Bank's operations, the results of financing efforts and other risk
factors detailed in the Company's Forms 10-KSB, 10-QSB and 8-K filed with the
Securities and Exchange Commission.
Information included in this document includes "forward-looking statements"
which can be identified by the use of forward-looking terminology such as "may,"
"will," "anticipate," "believe," "estimate," or "continue," or the negative
thereof or other variations thereon or comparable terminology. The statements in
"risk factors" and other statements and disclaimers in the Company's Annual
Report on Form 10-KSB constitute cautionary statements identifying important
factors, including certain risks and uncertainties, with respect to such
forward-looking statements that could cause actual results to differ materially
from those reflected in such forward-looking statements.
15
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UNION BANKSHARES, LTD.
PART II - OTHER INFORMATION
Item 6. Exhibits
Exhibit 2.1 Agreement and Plan of Reorganization, dated August 9, 1999,
among Gold Banc Corporation, Inc., Gold Banc Acquisition
Corporation VIII, Inc., and Union Bankshares, Ltd.
Exhibit 27 Financial Data Schedule
Exhibit 99 Press Release dated August 9, 1999
16
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
UNION BANKSHARES, LTD.
----------------------
(Registrant)
August 13, 1999 /s/ BRUCE E. HALL
------------------------------------
Bruce E. Hall
Vice President, Treasurer and
Secretary
(Authorized Officer and Principal
Financial Officer of the Registrant)
17
EXECUTION COPY
================================================================================
AGREEMENT AND PLAN OF REORGANIZATION
By and Among
GOLD BANC CORPORATION, INC.
GOLD BANC ACQUISITION CORPORATION VIII, INC.
and
UNION BANKSHARES, LTD.
August 9, 1999
================================================================================
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<TABLE>
<CAPTION>
TABLE OF CONTENTS
PAGE
<S> <C> <C> <C>
ARTICLE I
DEFINITIONS..........................................................................1
Section 1.1 Defined Terms...................................................1
Section 1.2 Construction....................................................6
ARTICLE II
THE COMPANY MERGER...................................................................7
Section 2.1 The Merger......................................................7
Section 2.2 Effective Time of the Company Merger............................7
Section 2.3 Articles of Incorporation, Bylaws, Directors
and Officers....................................................8
Section 2.4 Effect of Company Merger........................................8
Section 2.5 Further Assurances..............................................8
Section 2.6 Conversion of Acquisition Subsidiary Common Stock...............8
Section 2.7 Effect of Merger on Company Stock...............................9
Section 2.8 Exchange of Certificates........................................9
Section 2.9 Closing of the Company Transfer Books..........................10
Section 2.10 Dividends......................................................10
Section 2.11 Stockholders' Approval.........................................10
Section 2.12 Adjustments....................................................11
Section 2.13 Voting Agreements..............................................11
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY.......................................11
Section 3.1 Organization and Good Standing.................................11
Section 3.2 Capital Structure..............................................12
Section 3.3 Authority......................................................13
Section 3.4 Stockholder Approval...........................................13
Section 3.5 No Violations..................................................14
Section 3.6 SEC Documents..................................................14
Section 3.7 Information Supplied...........................................15
Section 3.8 Internal Controls and Records..................................15
Section 3.9 Taxes..........................................................15
Section 3.10 Title to Assets................................................16
Section 3.11 Leases.........................................................16
Section 3.12 Intangible Properties..........................................17
Section 3.13 Regulatory Filings.............................................18
Section 3.14 Insurance......................................................18
Section 3.15 Compliance with ERISA..........................................18
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Section 3.16 Environmental Laws.............................................19
Section 3.17 Labor Matters..................................................20
Section 3.18 Year 2000 Compliance...........................................20
Section 3.19 Legal Proceedings..............................................20
Section 3.20 Contracts......................................................20
Section 3.21 Required Consents..............................................21
Section 3.22 Broker's Fees..................................................21
Section 3.23 Conduct........................................................21
Section 3.24 Absence of Certain Events......................................22
Section 3.25 Loans..........................................................22
Section 3.26 Opinion of Financial Advisers..................................23
Section 3.27 Accounting Matters.............................................23
Section 3.28 Beneficial Ownership of Gold Banc Common Stock.................23
Section 3.29 Undisclosed Liabilities; Adverse Agreements....................23
Section 3.30 Disclosure.....................................................23
Section 3.31 No Dissenter's ................................................24
Section 3.32 Deductibility of Severance Payments............................24
Section 3.33 Accruals.......................................................24
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF GOLD BANC.........................................24
Section 4.1 Corporate......................................................25
Section 4.2 Capital Structure..............................................25
Section 4.3 Authority......................................................25
Section 4.4 Stockholder Approval...........................................26
Section 4.5 Status of Gold Banc Common Stock to be Issued..................27
Section 4.6 No Violation...................................................27
Section 4.7 SEC Documents..................................................28
Section 4.8 Information Supplied...........................................28
Section 4.9 Internal Controls and Records..................................29
Section 4.10 Taxes..........................................................29
Section 4.11 Regulatory Filings.............................................29
Section 4.12 Compliance with ERISA..........................................30
Section 4.13 Environmental Laws.............................................30
Section 4.14 Year 2000 Compliance...........................................30
Section 4.15 Legal Proceedings..............................................31
Section 4.16 Required Consents..............................................31
Section 4.17 Broker's Fees..................................................31
Section 4.18 Conduct........................................................31
Section 4.19 Undisclosed Liabilities; Adverse Agreements....................31
Section 4.20 Disclosure.....................................................32
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ARTICLE V
COVENANTS OF THE COMPANY............................................................32
Section 5.1 Affirmative Covenants of the Company...........................32
Section 5.2 Negative Covenants of the Company..............................33
Section 5.3 Inspection.....................................................35
Section 5.4 Financial Statements and Call Reports..........................35
Section 5.5 Tax Returns....................................................35
Section 5.6 Right to Attend Meetings.......................................36
Section 5.7 Data Processing................................................36
Section 5.8 No Solicitation................................................36
Section 5.9 Regulatory Approvals...........................................37
Section 5.10 Information....................................................37
Section 5.11 Tax-Free Reorganization Treatment..............................37
Section 5.12 Pooling-of-Interest Accounting Treatment.......................38
Section 5.13 Cooperation by the Company.....................................38
Section 5.14 Year 2000 Compliance...........................................38
Section 5.15 Proxy Statement and Registration Statement.....................38
Section 5.16 Confidentiality................................................38
Section 5.17 Employee Benefit Plans.........................................39
Section 5.18 Deductibility of Severance Payments............................40
ARTICLE VI
COVENANTS OF GOLD BANC AND ACQUISITION SUBSIDIARY...................................40
Section 6.1 Regulatory Approvals...........................................40
Section 6.2 Information....................................................40
Section 6.3 Tax-Free Reorganization Treatment..............................40
Section 6.4 Employee Benefit Plans; Prior Service Credit...................40
Section 6.5 Assumption of Company Stock Options............................40
Section 6.6 Confidentiality................................................41
Section 6.7 Pooling-of-Interest Accounting ................................41
Section 6.8 Cooperation by Gold Banc and Acquisition Subsidiary............41
Section 6.9 Year 2000 Compliance...........................................41
Section 6.10 Indemnification of Directors and Insurance.....................41
Section 6.11 Employee Bonuses...............................................42
ARTICLE VII
CONDITIONS PRECEDENT TO OBLIGATIONS
OF THE COMPANY......................................................................42
Section 7.1 Representations, Warranties and Covenants......................42
Section 7.2 Regulatory Authority Approval..................................42
Section 7.3 Litigation.....................................................42
Section 7.4 Approval by Stockholders.......................................42
Section 7.5 Adverse Changes................................................43
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Section 7.6 Federal Tax Opinion............................................43
Section 7.7 Opinion of Counsel.............................................43
Section 7.8 Market Price of Gold Banc Common Stock.........................43
ARTICLE VIII
CONDITIONS PRECEDENT TO OBLIGATIONS OF
GOLD BANC AND ACQUISITION SUBSIDIARY................................................43
Section 8.1 Representations, Warranties and Covenants......................43
Section 8.2 Adverse Changes................................................43
Section 8.3 Regulatory Authority Approval..................................44
Section 8.4 Litigation.....................................................44
Section 8.5 Financial Measures.............................................44
Section 8.6 Approval by Stockholders.......................................44
Section 8.7 Tax Representations............................................44
Section 8.8 Affiliate Agreements...........................................44
Section 8.9 Federal Tax Opinion............................................45
Section 8.10 Opinion of Counsel.............................................45
Section 8.11 Qualification for Pooling-of-Interest Treatment................45
Section 8.12 Regarding the Significant Stockholders.........................45
Section 8.13 Company Options................................................45
Section 8.14 Deductibility of Severance Payments............................46
ARTICLE IX
NON-SURVIVAL OF REPRESENTATIONS AND WARRANTIES......................................46
Section 9.1 No Survival of Representations and Warranties..................46
ARTICLE X
SECURITIES LAWS MATTERS.............................................................46
Section 10.1 Registration Statement and Proxy Statement.....................46
Section 10.2 State Securities Laws..........................................47
Section 10.3 Publication of Combined Financial Results......................47
Section 10.4 Affiliates.....................................................47
Section 10.5 Indemnification by Gold Banc...................................47
Section 10.6 Indemnification by the Company.................................48
ARTICLE XI
TERMINATION.........................................................................48
Section 11.1 Basis for Termination..........................................48
Section 11.2 Effect of Termination..........................................49
Section 11.3 Termination Fee................................................49
Section 11.4 Specific Performance...........................................49
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ARTICLE XII
MISCELLANEOUS.......................................................................50
Section 12.1 Amendment......................................................50
Section 12.2 Extension: Waiver..............................................50
Section 12.3 Expenses.......................................................50
Section 12.4 Parties in Interest............................................50
Section 12.5 Entire Agreement; Amendments; Waiver...........................51
Section 12.6 Notices........................................................51
Section 12.7 Law Governing..................................................52
Signature Pages............................................................................S-1
</TABLE>
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LIST OF SCHEDULES
Schedule 3.2(a) Options
Schedule 3.9 Tax Matters
Schedule 3.10 Owned Real Property
Schedule 3.11(a) Real Property Leases
Schedule 3.11(b) Personal Property Leases
Schedule 3.12(c) Intangible Properties
Schedule 3.15 Employee Benefit Plans
Schedule 3.19 Legal Proceedings
Schedule 3.20 Contracts
Schedule 3.21 Required Consents of Company
Schedule 3.22 Broker's Fees
Schedule 3.24 Absence of Certain Events
Schedule 3.25(b) Affiliate Loans
Schedule 4.15 Gold Banc Actions Pending
Schedule 4.16 Required Consents of Gold Banc
LIST OF EXHIBITS
Exhibit A Form of Voting Agreement
Exhibit B Form of Affiliate Letter
Exhibit C Form of Hall Non-Compete Agreement
Exhibit D Form of Harrison Non-Compete Agreement
Exhibit E Form of Zueck Non-Compete Agreement
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EXECUTION COPY
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement"), dated as of
August 9, 1999, is made by and among GOLD BANC CORPORATION, INC., a Kansas
corporation ("Gold Banc"), GOLD BANC ACQUISITION CORPORATION VIII, INC., a
Kansas corporation ("Acquisition Subsidiary"), and UNION BANKSHARES, LTD., a
Delaware corporation (the "Company").
RECITALS
A. The Boards of Directors of Gold Banc, Acquisition Subsidiary
and the Company have approved and deem it advisable and in the best interests of
their respective companies and stockholders that Gold Banc and the Company
become affiliated through the merger of the Company with and into Acquisition
Subsidiary in the manner hereinafter set forth (the "Merger" or the "Company
Merger").
B. The parties desire to make certain representations, warranties
and agreements in connection with the Merger and also to prescribe certain
conditions to the Merger.
AGREEMENT
ACCORDINGLY, in consideration of the premises, the mutual
covenants and agreements set forth herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 DEFINED TERMS. As used in this Agreement, the
following terms have the following meanings:
"280G Opinion Letter" shall have the meaning set forth in SECTION
8.14 hereof.
"401(k) Plan" shall have the meaning set forth in
SECTION 5.17 hereof.
"Acquisition Proposal" means any proposal for a tender or
exchange offer, a merger, consolidation or other business combination,
recapitalization, liquidation, dissolution or similar transaction involving the
Company or any Subsidiary, or any proposal or offer to acquire in any manner,
directly or indirectly, a material equity interest in, or a material amount of
voting securities of (with the acquisition of beneficial ownership of 15% or
more of the Company's or
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any Subsidiary's voting securities being deemed to be material for this
purpose), or, outside the ordinary course of business, any sale of a significant
amount of assets of, the Company or any Subsidiary, or similar transactions
involving the Company or any Subsidiary, other than the Merger.
"Acquisition Subsidiary" means Gold Banc Acquisition Corporation
VIII, Inc., a Kansas corporation, and its successors and assigns.
"Acquisition Subsidiary Common Stock" shall have the meaning set
forth in SECTION 2.6 hereof.
"Action" means any action, suit, claim, demand, petition,
arbitration, inquiry, proceeding or investigation by or before any Governmental
Entity or arbitrator.
"Affiliate Letter" shall have the meaning set forth in
SECTION 8.8 hereof.
"Agreement" means this Agreement and Plan of Reorganization,
together with the Schedules and Exhibits hereto.
"Average Gold Banc Stock Price" means the average of the closing
sales price of Gold Banc Common Stock as reported by Nasdaq on each of the ten
consecutive trading days immediately preceding the third trading day prior to
the Effective Time.
"Bank" means Union Bank & Trust, a Colorado banking corporation.
"BHC Act" means the Banking Holding Company Act of 1956, as
amended, and the regulations promulgated pursuant thereto.
"Business Day" means a day other than Saturday, Sunday or another
day on which commercial banks in Kansas are authorized or required by law to
close.
"Closing" means the consummation of the transactions
contemplated hereby.
"Closing Date" shall have the meaning set forth in
SECTION 2.2 hereof.
"Code" means the Internal Revenue Code of 1986, as amended, and
the regulations promulgated pursuant thereunder.
"Company" means Union Bankshares, Ltd., a Delaware corporation,
and its successors and assigns.
"Company Common Stock" means the common stock, par value $.001
per share, of the Company.
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"Company Confidential Information" shall have the meaning set
forth in SECTION 6.6 hereof.
"Company Merger" shall have the meaning set forth in the
Recitals hereof.
"Company Plans" shall have the meaning set forth in
SECTION 3.15 hereof.
"Company Preferred Stock" means the preferred stock, par value
$.001 per share, of the Company.
"Company SEC Documents" shall have the meaning set forth in
SECTION 3.6 hereof.
"Company Stock Options" shall have the meaning set forth in
SECTION 3.2(A) hereof.
"Company's Counsel" shall have the meaning set forth in
SECTION 8.10 hereof.
"Consent" means a consent, approval, authorization, waiver or
notification from any Person or Governmental Entity.
"Contract" means any contract, agreement, mortgage, deed of
trust, indenture, instrument, promissory note, lease, license, or other legally
binding commitment or arrangement.
"Damages" means all losses, claims, damages, costs, fines,
penalties, obligations, judgments, payments, liabilities, deficiencies and
diminutions in value (including those arising out of any Action), together with
all reasonable costs and expenses (including reasonable outside attorneys' fees
and reasonable out-of-pocket expenses) incurred in connection with any of the
foregoing.
"DGCL" means the Delaware General Corporation Law, title 8 of the
Delaware Code, as amended from time to time.
"Employment Agreements" means the existing employment agreements,
each dated December 31, 1992, between the Company and each of the Significant
Stockholders.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder as in effect at
the applicable time.
"Exchange Agent" shall have the meaning set forth in
SECTION 2.8 hereof.
"Effective Time" shall have the meaning set forth in
SECTION 2.2 hereof.
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"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, and the regulations promulgated pursuant thereto.
"GAAP" means United States generally accepted accounting
principles, applied on a basis consistent with prior periods, as in effect on
111the date of this Agreement. All references herein to financial statements
prepared in accordance with GAAP shall mean in accordance with GAAP consistently
applied throughout the period to which reference is made.
"Gold Banc" means Gold Banc Corporation, Inc., a Kansas
corporation, and its successors and assigns.
"Gold Banc Common Stock" means the common stock, par value $1.00
per share, of Gold.
"Gold Banc Confidential Information" shall have the meaning set
forth in SECTION 5.15 hereof.
"Gold Banc Measurement Price" means the average of the closing
sales price of Gold Banc Common Stock as reported by Nasdaq on each of the ten
(10) consecutive trading days ending on the day immediately preceding the
meeting of the stockholders of the Company held to vote on this Agreement.
"Gold Banc Plans" shall have the meaning set forth in SECTION
4.12 hereof.
"Gold Banc Preferred Stock" means the preferred stock, no par
value per share, of Gold.
"Gold Banc SEC Documents" shall have the meaning set forth in
SECTION 4.7 hereof.
"Gold Banc's Counsel" shall have the meaning set forth in
SECTION 8.9 hereof.
"Governmental Entity" means any federal, state or local
government, any of its subdivisions, agencies, authorities, commissions, boards
or bureaus, and any federal, state or local court or tribunal.
"IRS" means the United States Internal Revenue Service.
"KGCC" means the Kansas General Corporation Code, as amended from
time to time.
"Laws" means any federal, state, local, municipal or other
constitution, statute, rule, regulation or ordinance or common law of any state.
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"Lease" means any Real Property Lease or Personal Property Lease.
"Leased Facilities" shall have the meaning set forth in
SECTION 3.11(A) hereof.
"Leased Personal Property" shall have the meaning set forth in
SECTION 3.11(B) hereof.
"License" means any permit, license, variance, exemption, order,
franchise or approval from any Person or Governmental Entity.
"Lien" means any lien, mortgage, deed of trust, security
interest, charge, claim, imposition, community property interest, option,
pledge, right of first refusal, retention of title agreement, easement,
encroachment, condition, reservation, covenant or other encumbrance affecting
title or the use, benefit or value of the asset in question, including without
limitation any restriction on transfer, receipt of income or any other attribute
of ownership.
"Merger" shall have the meaning set forth in the Recitals hereof.
"Nasdaq" means the Nasdaq National Market System.
"Order" means any order, judgment, injunction, decree,
determination or award of any Governmental Entity or arbitrator.
"Person" means any natural person, corporation, partnership,
limited liability company, trust, unincorporated organization or other entity.
"Personal Property Leases" shall have the meaning set forth in
SECTION 3.11(B) hereof.
"Proxy Statement" shall have the meaning set forth in
SECTION 10.1 hereof.
"Real Property Leases" shall have the meaning set forth in
SECTION 3.11(A) hereof.
"Registration Statement" shall have the meaning set forth in
SECTION 10.1 hereof.
"Rule 4460" shall have the meaning set forth in
SECTION 4.3(A) hereof.
"SEC" means the United States Securities and Exchange Commission
and the staff thereof.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder as in effect at the
applicable time.
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"Significant Stockholders" means, collectively, Bruce E. Hall,
Charles R. Harrison and Herman J. Zueck and their heirs, successors and assigns.
"Subsidiaries" means, collectively, the Bank and the Trust, and
"Subsidiary" means either one of the Subsidiaries.
"Surviving Corporation" shall have the meaning set forth in
SECTION 2.1 hereof.
"Total Equity Capital" means, with respect to any Person, the sum
of outstanding capital stock, paid in capital, retained earnings and current
earnings year to date, all determined in accordance with GAAP, but excluding any
FAS 115 adjustments.
"Termination Fee" shall have the meaning set forth in
SECTION 11.3 hereof.
"Trust" means the Delaware Business Trust formed by the Company
on October 14, 1998.
"Trust Common Securities" shall have the meaning set forth in
SECTION 3.2(C) hereof.
"Trust Preferred Securities" shall have the meaning set forth in
SECTION 3.2(C) hereof.
"Welfare Plans" shall have the meaning set forth in
SECTION 5.17 hereof.
"Year 2000 Problem" means the risk that computer applications
used by the applicable Person may be unable to recognize and properly perform
date sensitive functions involving certain dates prior to and any date after
December 31, 1999.
"Year 2000 Compliant" means the ability to perform date sensitive
functions for all dates before and after January 1, 2000.
Section 1.2 CONSTRUCTION.
(a) Unless the context otherwise requires or unless otherwise
provided herein the terms defined in this Agreement which refer to a
particular agreement, instrument or document also refer to and include
all renewals, extensions, modifications, amendments, and restatements of
such agreement, instrument or document.
(b) As used in this Agreement, accounting terms not defined in
SECTION 1.1, and accounting terms partly defined in SECTION 1.1 to the
extent not defined, shall have the respective meanings given to them
under GAAP.
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(c) The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement
as a whole and not to any particular provision of this Agreement.
Section, subsection, schedule and exhibit references are to this
Agreement unless otherwise specified. Whenever an item or items are
listed after the word "including," such listing is not intended to be a
listing that excludes items not listed.
(d) Words of the masculine gender shall be deemed and construed
to include correlative words of the feminine and neuter genders. Unless
the context shall otherwise indicate, words importing the singular
number shall include the plural and vice versa, and words importing
person shall include individuals, corporations, partnerships, joint
ventures, associations, joint-stock companies, trusts, unincorporated
organizations and governments and any agency or political subdivision
thereof.
ARTICLE II
THE COMPANY MERGER
Section 2.1 THE MERGER. Upon the terms and subject to the
conditions of this Agreement, at the Effective Time, the Company shall be merged
with and into Acquisition Subsidiary and the separate existence and corporate
organization of the Company shall thereupon cease and the Company and
Acquisition Subsidiary shall thereupon be a single corporation. Acquisition
Subsidiary shall be the surviving corporation in the Merger (the "Surviving
Corporation") and the separate corporate existence of Acquisition Subsidiary
shall continue unaffected and unimpaired by the Merger.
Section 2.2 EFFECTIVE TIME OF THE COMPANY MERGER. On the Closing
Date (as hereinafter defined), the proper officers of the Company and
Acquisition Subsidiary shall execute and acknowledge appropriate certificates of
merger that shall be filed with the Kansas Secretary of State and the Delaware
Secretary of State on the first Business Day following the Closing Date, all in
accordance with the KGCC and the DGCL. The Merger shall become effective on the
date that such certificates of merger have been filed with the Kansas Secretary
of State and the Delaware Secretary of State in accordance with the KGCC and the
DGCL (the "Effective Time"). The Closing shall be on a day (the "Closing Date")
occurring not less than two (2) and not more than five (5) Business Days before
the Effective Time and not later than forty-five (45) days following the
satisfaction or waiver, to the extent permitted hereunder, of the last of the
conditions to the consummation of the Merger specified in ARTICLE VII and
ARTICLE VIII of this Agreement at 10:00 a.m. at the office of Gold Banc, 11301
Nall Avenue, Leawood, Kansas 66211, which day shall be specified by notice from
Gold Banc to the Company (such notice to be at least five (5) days in advance of
such Closing Date), or on such other date and at such other place and time as
the parties hereto may mutually agree.
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Section 2.3 ARTICLES OF INCORPORATION, BYLAWS, DIRECTORS
AND OFFICERS.
(a) The Articles of Incorporation and Bylaws of Acquisition
Subsidiary as in effect immediately prior to the Effective Time shall be
and remain the Articles of Incorporation and Bylaws of the Surviving
Corporation from and after the Effective Time until amended as provided
by law, except that the name of the Surviving Corporation shall be
changed to "GBC Colorado, Inc." at the Effective Time.
(b) The officers and directors of Acquisition Subsidiary shall
continue as the officers and directors of the Surviving Corporation from
and after the Effective Time, subject to the Bylaws of the Surviving
Corporation and applicable Laws.
Section 2.4 EFFECT OF COMPANY MERGER. Subject to Kansas law and
Delaware law, at the Effective Time (a) Acquisition Subsidiary shall possess all
assets and property of every description, and every interest therein, wherever
located, and the rights, privileges, immunities, powers, franchises, and
authority, of a public as well as of a private nature, of the Company and all
obligations belonging to or due each of the Company and Acquisition Subsidiary
shall be vested in Acquisition Subsidiary without further act or deed; (b) title
to any real estate or any interest therein vested in the Company shall not
revert or in any way be impaired by reason of the Company Merger; (c) all rights
of creditors and all liens on any property of the Company shall be preserved
unimpaired; and (d) Acquisition Subsidiary shall be liable for all the
obligations of the Company, and any claim existing, or action or proceeding
pending, by or against either of the Company or Acquisition Subsidiary, may be
prosecuted to judgment with the right of appeal, as if the Company Merger had
not taken place.
Section 2.5 FURTHER ASSURANCES. If at any time after the
Effective Time, Acquisition Subsidiary shall consider it advisable that any
further conveyances, agreements, documents, instruments or assurances of law or
other actions or things are necessary or desirable to vest, perfect, confirm or
record in Acquisition Subsidiary the title to any property, rights, privileges,
powers, or franchises of the Company, the former Board of Directors and officers
of the Company shall, and will be authorized to, execute and deliver in the name
and on behalf of the Company or otherwise, any and all proper conveyances,
agreements, documents, instruments, and assurances of law and do all things
necessary or proper to vest, perfect, or confirm title to such property, rights,
privileges, powers and franchises in Acquisition Subsidiary, and otherwise to
carry out the provisions of this Agreement.
Section 2.6 CONVERSION OF ACQUISITION SUBSIDIARY COMMON STOCK. At
the Effective Time, each share of common stock, $1.00 par value per share, of
Acquisition Subsidiary ("Acquisition Subsidiary Common Stock") issued and
outstanding immediately prior to the Effective Time shall remain issued and
outstanding, and shall be unaffected by the Company Merger.
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Section 2.7 EFFECT OF MERGER ON COMPANY STOCK. At the Effective
Time, by virtue of the Merger and without any action on the part of any holder
thereof:
(a) Each share of Company Common Stock that is either authorized
but unissued or held in the treasury of the Company, if any, or held by
the Company or any Subsidiary other than as trustee, fiduciary, nominee
or some similar capacity shall be canceled and retired and shall cease
to exist from and after the Effective Time, and no cash or other
consideration shall be delivered in exchange therefor.
(b) Each outstanding share of Company Common Stock, of which
2,350,514 shares are issued and outstanding as of the date hereof shall
be converted into the number of shares (the "Exchange Ratio") of Gold
Banc Common Stock determined by dividing $23.05 by the Average Gold Banc
Stock Price, with the Exchange Ratio being rounded to four decimal
places. Notwithstanding the foregoing, (i) if the Average Gold Banc
Stock Price is greater than $16.00, then the Exchange Ratio shall be
1.4406 and (ii) if the Average Gold Banc Stock Price is less than
$13.00, then the Exchange Ratio shall be 1.7731. Fractions of shares
determined pursuant to this SECTION 2.7(B) shall be rounded to three
decimal places.
Section 2.8 EXCHANGE OF CERTIFICATES.
(a) Gold Banc, on behalf of Acquisition Subsidiary, shall make
available to American Stock Transfer and Trust Company, Inc., which is
hereby designated as exchange agent (the "Exchange Agent"), at and after
the Effective Time, such number of shares of Gold Banc Common Stock as
shall be issuable to the holders of Company Common Stock in accordance
with SECTION 2.7 hereof. As soon as practicable after the Closing Date,
Gold Banc, on behalf of the Exchange Agents, shall mail to each holder
of record of a certificate that immediately prior to the Closing Date
represented outstanding shares of Company Common Stock (i) a form letter
of transmittal and (ii) instructions for effecting the surrender of
certificates of Company Common Stock for exchange into certificates of
Gold Banc Common Stock. The Gold Banc Common Stock into which the
Company Common Stock is being converted in accordance with SECTION
2.7(B) hereof shall be delivered to each stockholder of the Company as
set forth in a letter of transmittal.
(b) Notwithstanding any other provision herein, no fractional
shares of Gold Banc Common Stock and no certificates or scrip therefor
or other evidence of ownership thereof will be issued. All fractional
shares of Gold Banc Common Stock to which a holder of Company Common
Stock would otherwise be entitled to under SECTION 2.7 hereof shall be
aggregated. If a fractional share results from such aggregation, such
stockholder shall be entitled, after the Effective Time and upon the
surrender of such stockholder's certificate or certificates representing
shares of Company Common Stock, to receive from the Exchange Agent an
amount in cash in lieu of such fractional share equal to the product of
such fraction and the Average Gold Banc Stock Price. Gold Banc,
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on behalf of Acquisition Subsidiary, shall make available to the
Exchange Agent, as required from time to time, any cash necessary for
this purpose.
Section 2.9 CLOSING OF THE COMPANY TRANSFER BOOKS. At the
Effective Time, the stock transfer books of the Company shall be closed and no
transfer of Company Common Stock shall thereafter be made.
Section 2.10 DIVIDENDS. No dividends or other distributions that
are declared after the Effective Time with respect to Gold Banc Common Stock
payable to holders of record thereof after the Effective Time shall be paid to
the Company stockholders entitled to receive certificates representing Gold Banc
Common Stock until such stockholders surrender to the Exchange Agent their
certificates representing Company Common Stock. Upon such surrender, there shall
be paid to the stockholder in whose name the certificates representing such Gold
Banc Common Stock shall be issued any dividends which shall have become payable
with respect to such Gold Banc Common Stock between the Effective Time and the
time of such surrender, without interest. After such surrender there shall also
be paid to the stockholder in whose name the certificates representing such Gold
Banc Common Stock shall be issued any dividend on such Gold Banc Common Stock
that shall have (a) a record date subsequent to the Effective Time and prior to
such surrender and (b) a payment date after such surrender, and such payment
shall be made on such payment date. In no event shall the stockholders entitled
to receive such dividends be entitled to receive interest on such dividends.
Section 2.11 STOCKHOLDERS' APPROVAL.
(a) The Company agrees to submit this Agreement and the
transactions contemplated hereby to its stockholders for approval to the
extent required and as provided by law and the Certificate of
Incorporation and Bylaws of the Company and in accordance with SECTION
10.1 hereof. The Company shall use its reasonable best efforts to take
all steps as shall be required for the stockholders' meeting to obtain
such approval to be held as soon as reasonably practicable after the
effective date of the Registration Statement. Subject to the exercise of
the fiduciary duties of the Company's Board of Directors, including
actions taken pursuant to Rule 14d-9 under the Exchange Act, the Company
shall, through its Board of Directors, recommend that the stockholders
of the Company approve and adopt this Agreement and the transactions
contemplated hereby and shall use its reasonable best efforts to secure
such approval.
(b) Gold Banc agrees to submit this Agreement and the
transactions contemplated hereby to its stockholders for approval to the
extent required and as provided by law, the Articles of Incorporation
and Bylaws of Gold Banc and the rules of Nasdaq. Subject to the exercise
of fiduciary duties by Gold Banc's Board of Directors, Gold Banc shall,
through its Board of Directors, recommend that the stockholders of Gold
Banc approve and adopt this Agreement and the transactions contemplated
hereby and shall use its reasonable best efforts to secure such
approval.
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Section 2.12 ADJUSTMENTS. If at any time during the period
between the date hereof and the Effective Time, any change in the outstanding
shares of Gold Banc Common Stock is effected by reason of any reclassification,
recapitalization, stock split or combination, exchange or readjustment of
shares, or any stock dividend thereon with a record date during such period, the
Exchange Ratio shall be adjusted on a pro rata basis.
Section 2.13 VOTING AGREEMENTS. Concurrently with the execution
and delivery of this Agreement, each of the Significant Stockholders and Gold
Banc shall execute and deliver the Voting Agreement in the form attached hereto
as EXHIBIT A.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby makes the following representations and
warranties to Gold Banc and Acquisition Subsidiary, each of which is true and
correct on the date hereof and will be true and correct as of the Effective
Time, each of which shall be unaffected by any investigation heretofore or
hereafter made by Gold Banc or Acquisition Subsidiary or their respective
representatives.
Section 3.1 ORGANIZATION AND GOOD STANDING.
(a) The Company is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware with all
requisite corporate power and authority to own, lease and operate its
properties and conduct its business as it is now being conducted. The
Company is duly registered as a bank holding company under the BHC Act.
The Company has heretofore made available to Gold Banc and Acquisition
Subsidiary complete and correct copies of its Certificate of
Incorporation and Bylaws. The Company is duly qualified and in good
standing in all states where the conduct of its business so requires
except where failure to so qualify would not materially and adversely
affect the business, operations, properties or financial condition of
the Company.
(b) The Bank is a wholly-owned subsidiary of the Company and is a
Colorado banking corporation duly organized, validly existing and in
good standing under the laws of the State of Colorado, with all
requisite corporate power and authority to own, lease and operate its
properties and conduct its business as it is now being conducted. The
Bank has heretofore made available to Gold Banc and Acquisition
Subsidiary complete and correct copies of its Certificate of
Incorporation and Bylaws. The Bank is duly qualified to do business in
all states in which the conduct of its business requires such
qualification except where the failure to be so qualified would not
materially and adversely affect the business, operations, properties or
financial condition of the Bank.
(c) The Trust is a subsidiary of the Company and is a Delaware
business trust duly organized, validly existing and in good standing
under the laws of the State of Delaware, with all requisite trust power
and authority to own, lease and operate its
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properties and conduct its business as it is now being conducted. The
Trust has heretofore made available to Gold Banc and Acquisition
Subsidiary complete and correct copies of its Certificate of Trust and
Amended and Restated Trust Agreement. The Trust is duly qualified to do
business in all states in which the conduct of its business requires
such qualification except where the failure to be so qualified would not
materially and adversely affect the business, operations, properties or
financial condition of the Trust.
(d) The Company has no subsidiaries other than the Bank and the
Trust.
Section 3.2 CAPITAL STRUCTURE.
(a) THE COMPANY. As of the date hereof, the authorized capital
stock of the Company consists only of 10,000,000 shares of Company
Common Stock and 500,000 shares of Company Preferred Stock, of which
2,350,514 shares of Company Common Stock and no shares of Company
Preferred Stock are issued and outstanding. All outstanding shares of
Company Common Stock are validly issued, fully paid and nonassessable
and are not subject to preemptive rights. There are no outstanding or
authorized options, warrants, agreements, subscriptions, calls, demands
or rights of any character relating to the capital stock of the Company,
whether or not issued, including without limitation securities
convertible into or evidencing the right to purchase any Company Common
Stock, Company Preferred Stock or any other securities of the Company,
except for the options listed on SCHEDULE 3.2(A) hereto (the "Company
Stock Options"). There are not as of the date hereof and will not be as
of the Effective Time any stockholder agreements, voting trusts or other
agreements or understandings to which the Company is a party or by which
it is bound relating to the voting of any shares of the capital stock of
the Company which will limit in any way the solicitation of proxies by
or on behalf of the Company or Gold Banc from, or the casting of votes
by, the stockholders of the Company with respect to the Merger.
(b) BANK. The authorized capital stock of the Bank consists only
of 240,000 shares of common stock, par value $12.50 per share, of which
470 shares are issued and outstanding. All of the issued and outstanding
shares of common stock of the Bank are owned beneficially and of record,
free and clear of all Liens (except for a Lien in connection with a bank
stock loan from Gold Bank, N.A.), by the Company. All outstanding shares
of common stock of the Bank are validly issued, fully paid and
nonassessable. There are no outstanding or authorized options, warrants,
agreements, subscriptions, calls, demands or rights of any character
relating to the capital stock of the Bank, whether or not issued,
including without limitation securities convertible into or evidencing
the right to purchase any common stock or any other securities of the
Bank.
(c) The capital of the Trust consists only of 41,935 Nine Percent
Trust Common Securities ("Trust Common Securities") issued and
outstanding and 1,355,790 Nine Percent Cumulative Trust Preferred
Securities ("Trust Preferred Securities") issued
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and outstanding. All of the issued and outstanding Trust Common
Securities are owned beneficially and of record, free and clear of all
Liens, by the Company. All outstanding Trust Common Securities are
validly issued, fully paid and nonassessable. There are no outstanding
or authorized options, warrants, agreements, subscriptions, calls,
demands or rights of any character relating to the capital of the Trust,
whether or not issued, including without limitation securities
convertible into or evidencing the right to purchase any Trust Common
Securities or Trust Preferred Securities or any other securities of the
Trust.
Section 3.3 AUTHORITY. The Company has all requisite corporate
power and authority to enter into this Agreement and all other agreements to be
executed and delivered by the Company pursuant hereto, and, subject, with
respect to consummation of the Merger, to approval of this Agreement and the
Merger by the stockholders of the Company in accordance with the DGCL and the
Company's Certificate of Incorporation and Bylaws, to perform its obligations
hereunder and thereunder, and to consummate the transactions contemplated hereby
and thereby. The execution and delivery of this Agreement and all other
agreements to be executed and delivered by the Company pursuant hereto and
thereto, the performance of its obligations hereunder and thereunder, and the
consummation of the transactions contemplated hereby and thereby, have been duly
authorized by all necessary corporate action on the part of the Company,
subject, with respect to consummation of the Merger, to such approval of this
Agreement and the Merger by the stockholders of the Company in accordance with
the DGCL. This Agreement has been, and all other agreements to be executed and
delivered by the Company will be prior to the Effective Time, duly executed and
delivered by the Company, subject, with respect to consummation of the Merger,
to approval of this Agreement and the Merger by the stockholders of the Company
in accordance with the DGCL, and constitutes, or will constitute, the legal,
valid and binding obligations of the Company, enforceable against the Company in
accordance with their terms.
Section 3.4 STOCKHOLDER APPROVAL. The Board of Directors of the
Company has directed or will direct that this Agreement and the Merger
contemplated hereby be submitted to the Company's stockholders for approval at a
meeting of such stockholders and, except for adoption of this Agreement by the
requisite vote of the Company's stockholders, no other stockholder action is
necessary to approve this Agreement and to consummate the Merger contemplated
hereby. The Board of Directors will recommend that the stockholders approve this
Agreement and the Merger contemplated hereby, subject to their fiduciary duties
and the requirements of Rule 14d-9 under the Exchange Act. The affirmative vote
of the holders of a majority of the outstanding shares of Company Common Stock
is the only vote of the holders of any class or series of the Company's capital
stock necessary to approve this Agreement, and to consummate the Merger and the
transactions contemplated hereby. No approval of a number of outstanding shares
of capital stock of the Company greater than that required by the relevant
statutory provisions is required for approval of this Agreement and the
consummation of the Merger and the transactions contemplated hereby.
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Section 3.5 NO VIOLATIONS.
(a) The execution and delivery of this Agreement and all other
agreements to be executed and delivered by the Company pursuant hereto,
the performance of the Company's obligations hereunder and thereunder,
and the consummation of the transactions contemplated hereby and
thereby, will not conflict with, violate or constitute a breach or
default under (i) the Certificate of Incorporation or Bylaws or other
organizational documents of the Company or any Subsidiary, (ii) any
provision of any Contract, Lien, Order or other restriction of any kind
or character to which the Company or any Subsidiary is a party, or by
which the Company or any Subsidiary, or any of their assets, is bound
except the loan to the Company from Gold Bank, N.A. or (iii) result in
the creation or imposition or any Lien upon the capital stock or the
assets of the Company or any Subsidiary.
(b) The Company and the Subsidiaries are not currently in
violation, breach or default of, and the consummation of the
transactions contemplated hereby will not, subject to obtaining all
required regulatory approvals and making all required state and federal
securities law filings, cause any violation, breach or default of, any
Laws, Orders, Licenses or Contracts applicable to the Company or any of
the Subsidiaries except for any violations, breaches or defaults that
would not have a material adverse effect on the business, operations,
properties or financial condition of the Company and the Subsidiaries,
taken as a whole.
(c) All Licenses required or necessary for the Company or any of
the Subsidiaries to carry on their respective businesses as they are
currently conducted have been obtained and are in full force and effect.
The Company and the Subsidiaries are in compliance with all terms of the
Licenses, except where the failure to so comply would not have a
material adverse effect on the business, operations, properties or
financial condition of the Company and the Subsidiaries, taken as a
whole.
Section 3.6 SEC DOCUMENTS. The Company has made available to Gold
Banc and Acquisition Subsidiary a true and complete copy of each report,
schedule, registration statement and definitive proxy statement filed by the
Company with the SEC since January 1, 1996 (the "Company SEC Documents"), which
are all the documents (other than preliminary material) that the Company was
required to file with the SEC since such date. As of their respective dates, the
Company SEC Documents complied in all material respects with the requirements of
the Securities Act or the Exchange Act, as the case may be, and the rules and
regulations of the SEC thereunder applicable to such Company SEC Documents, and
none of the Company SEC Documents contained any untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading. The financial statements of the Company
included in the Company SEC Documents complied as to form in all material
respects with the published rules and regulations of the SEC with respect
thereto, have been prepared in
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accordance with GAAP (except as may be indicated in the notes thereto or, in the
case of the unaudited statements, as permitted by Rule 10-01 of Regulation S-X
of the SEC) and present fairly, in all material respects, in accordance with
applicable requirements of GAAP (subject, in the case of the unaudited
statements, to normal, recurring adjustments, none of which were material) the
consolidated financial position of the Company and the Subsidiaries as of their
respective dates and the consolidated results of operations and the consolidated
cash flows of the Company and the Subsidiaries for the periods presented
therein. Reserves for the Company's current and deferred federal and state
income tax liabilities have been accrued in accordance with GAAP. Neither the
Company nor either of the Subsidiaries has any material liability or obligation
of a type which would be included in a balance sheet prepared in accordance with
GAAP whether related to tax or non-tax matters, accrued or contingent, due or
not yet due, liquidated or unliquidated, or otherwise, except and to the extent
disclosed or reflected in the financial statements included in the Company SEC
Documents. Since March 31, 1999 there has been no material adverse change in the
financial condition, properties, assets, liabilities or business of the Company
and the Subsidiaries, taken as a whole.
Section 3.7 INFORMATION SUPPLIED. When considered in the
aggregate, none of the information supplied or to be supplied by the Company for
inclusion or incorporation by reference in (i) the Registration Statement will,
at the time the Registration Statement becomes effective under the Securities
Act or at the Effective Time, contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein not misleading, and (ii) the Proxy Statement will,
at the date mailed to stockholders of the Company and Gold Banc or at the times
of the meetings of such stockholders to be held in connection with the Merger or
at the Effective Time, contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary in order
to make the statements therein, in light of the circumstances under which they
are made, not misleading other than information supplied or required to be
supplied by Gold Banc and Acquisition Subsidiary.
Section 3.8 INTERNAL CONTROLS AND RECORDS. The Company and the
Subsidiaries maintain books of account which accurately and validly reflect, in
all material respects, all loans, mortgages, collateral and other business
transactions and maintain accounting controls sufficient to ensure that all such
transactions are (i) in all material respects, executed in accordance with its
management's general or specific authorization, and (ii) recorded in conformity
with GAAP.
Section 3.9 TAXES. The Company and the Subsidiaries each have
timely filed all tax returns required to be filed by them, and the Company and
the Subsidiaries have timely paid and discharged all taxes due in connection
with or with respect to the filing of such tax returns and, except as disclosed
on SCHEDULE 3.9, have timely paid all other taxes as are due, except such as are
being contested in good faith by appropriate proceedings and with respect to
which the Company or the appropriate Subsidiary is maintaining reserves adequate
for their payment. The liability for taxes set forth on each such tax return
adequately reflects in all material respects the taxes required to be reflected
on such tax return. Neither the IRS nor any other Governmental
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Entity or taxing authority or agency is now asserting, either through audits,
administrative proceedings, court proceedings or otherwise, or threatening to
assert against the Company or any Subsidiary, any deficiency or claim for
additional taxes. Neither the Company nor any Subsidiary has granted any waiver
of any statute of limitations with respect to, or any extension of a period for
the assessments of, any tax. There are no tax liens on any assets (excluding
other real estate owned properties) of the Company or any Subsidiary other than
Liens for taxes which are not yet due and payable. Neither the Company nor any
Subsidiary has received a ruling or entered into an agreement with the IRS or
any other Governmental Entity or taxing authority or agency that would have a
material adverse effect on the business, operations, properties or financial
condition of the Company and its Subsidiaries, taken as a whole. Immediately
after the consummation of the Merger (and without regard to any actions that may
be taken by Gold Banc or the Surviving Corporation following the Merger), the
interest paid on subordinated debentures issued by the Company to the Trust will
be deductible by the Surviving Corporation to the same extent deductible by the
Company as of the date hereof as interest payments for federal income tax
purposes.
Section 3.10 TITLE TO ASSETS. The Company and the Subsidiaries
have good and marketable title to and possession of all their respective real
and personal properties and assets, in each case free and clear of any Liens,
except as reflected on the Company's consolidated financial statements, the Lien
of Gold Bank, N.A. on the stock of the Bank and except for the Lien of current
taxes, covenants and restrictions of record, and other minor imperfections of
title not affecting marketability, which Liens do not materially affect the
value of such property and do not interfere with the use made of such property
by the Company or the Subsidiaries. Attached hereto as SCHEDULE 3.10 is a
complete list of all real property owned by the Company or any of the
Subsidiaries. Since March 31, 1999, neither the Company nor any of the
Subsidiaries has entered into any agreement or commitment to sell any property,
real or personal, or any other assets of the Company or any of the Subsidiaries
other than in the ordinary course of business, nor has the Company nor any of
the Subsidiaries made any commitment or taken or failed to take any action which
would cause any Lien to attach to any property.
Section 3.11 LEASES.
(a) SCHEDULE 3.11(A) hereof contains a list of all real property
leases (the "Real Property Leases") to which the Company or any of the
Subsidiaries is a party, either as lessor or lessee (the facilities
subject to such Real Property Leases being referred to as the "Leased
Facilities"). Each of the Real Property Leases is in full force and
effect and neither the Company nor any of the Subsidiaries nor, to the
Company's knowledge, any other party thereto has committed any material
default thereunder. Neither the Company nor any of the Subsidiaries is
subject to any increase in rentals or other costs in connection with any
Leased Facility of which the Company or any of the Subsidiaries is
lessee which is not provided for in the applicable Real Property Lease.
No Consent is necessary under the terms of any such Lease in connection
with the consummation of the transactions contemplated hereby.
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(b) SCHEDULE 3.11(B) hereof contains a list of all Leases with
respect to personal property involving an obligation in excess of
$15,000 on an annual basis or $30,000 in the aggregate (the "Personal
Property Leases") to which the Company or any of the Subsidiaries is a
party, either as lessor or lessee (the personal property subject to such
Personal Property Leases being referred to as the "Leased Personal
Property"). Each of the Personal Property Leases is in full force and
effect and neither the Company nor any of the Subsidiaries nor any other
party thereto has committed any material default thereunder. Neither the
Company nor any of the Subsidiaries is subject to any increase in
rentals or other costs in connection with any Leased Personal Property
of which the Company or any of the Subsidiaries is lessee which is not
provided for in the applicable Personal Property Lease. No Consent is
necessary under the terms of any such Lease in connection with the
consummation of the transactions contemplated hereby.
Section 3.12 INTANGIBLE PROPERTIES.
(a) None of the assets of the Company or any of the Subsidiaries
is subject to any patent or patent application, copyright or copyright
application, trademark or trademark application, or similar evidence of
ownership or the right to the use thereof by any third party, except for
assets licensed by the Company or its Subsidiaries in the ordinary
course of business.
(b) Neither the Company nor any of the Subsidiaries has infringed
any patent or patent application, copyright or copyright application,
trademark or trademark application or trade name or other proprietary or
intellectual property right of any other person, except for such matters
as would not materially and adversely affect the business, operations,
properties or financial condition of the Company and its Subsidiaries,
taken as a whole, or received any notice of a claim of such
infringement.
(c) Attached hereto as SCHEDULE 3.12(C) is a true and accurate
list of all patents, copyrights, trademarks, trade names and service
marks, both foreign and domestic, owned, possessed or used by the
Company or any of the Subsidiaries. The Company or one or more of the
Subsidiaries owns the entire right, title and interest therein and each
thereof is in full force and effect.
(d) The Company and each of the Subsidiaries have the right to
use all data and information (including without limitation confidential
information, trade secrets and know-how) necessary to permit the conduct
from and after the Effective Time of the business of the Company and
each of the Subsidiaries, as such business is and has been normally
conducted, except for such matters as would not have a material adverse
effect on the business, operations, properties or financial condition of
the Company and its Subsidiaries, taken as a whole.
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Section 3.13 REGULATORY FILINGS. The Company and each of the
Subsidiaries have timely filed all material notices, reports, registrations and
statements with all Governmental Entities and have paid all fees and assessments
due and payable in connection therewith. Except for normal examinations and
reviews conducted by Governmental Entities in the regular course of the business
of the Company and the Subsidiaries, no Governmental Entity has initiated any
proceeding or investigation into the business or operations of the Company or
any of the Subsidiaries. There is no unresolved material violation, criticism,
or exception by any Governmental Entity with respect to any written report or
statement relating to any examinations of the Company or any of the
Subsidiaries. The Company has made available to Gold Banc and Acquisition
Subsidiary all reports of examinations conducted by any Governmental Entity with
respect to the Company or any of the Subsidiaries during the preceding three (3)
years. The Company will also make available to Gold Banc and Acquisition
Subsidiary any subsequent reports of examination received from any Governmental
Entity between the date hereof and the Effective Time.
Section 3.14 INSURANCE. Complete and correct copies of all
material policies of fire, product or other liability, workers' compensation and
other similar forms of insurance owned or held by the Company and the
Subsidiaries have been delivered or made available to Gold Banc and Acquisition
Subsidiary. Subject to expirations and renewals of insurance policies in the
ordinary course of business, all such policies are in full force and effect, all
premiums with respect thereto covering all periods up to and including the date
as of which this representation is being made have been paid, and no notice of
cancellation or termination has been received with respect to any such policy.
The insurance policies to which the Company and the Subsidiaries are parties are
sufficient for compliance with all material requirements of Law and all material
agreements to which the Company or any of the Subsidiaries is a party and will
be maintained by the Company and the Subsidiaries until the Effective Time.
Neither the Company nor any of the Subsidiaries has been refused any insurance
with respect to any material assets or operations, nor has coverage been limited
in any respect material to their operations by any insurance carrier to which
they have applied for any such insurance or with which they have carried
insurance during the last five (5) years.
Section 3.15 COMPLIANCE WITH ERISA. Neither the Company nor any
of the Subsidiaries has established, maintained or contributed at any time
during the five-year period ending as of the Effective Time to any employee
benefit plan (as defined in Sections 3(3) or 3(37) of ERISA) or any other
similar plan with respect to which any governmental filings are required, except
for the plans listed on SCHEDULE 3.15 hereof (collectively, the "Company
Plans"). A true and accurate copy of each of the Company Plans, any related
trust agreements and each of the amendments thereto has been provided or made
available to Gold Banc and Acquisition Subsidiary together with (i) all
determination letters received in respect of any qualified plans, and (ii) all
required reports and supporting schedules filed with any Governmental Entity in
respect of the Company Plans for the three most recent years ending on or before
the date hereof. The Company Plans and each fiduciary (as defined in Section
3(21) of ERISA) of the Company Plans are in compliance in all material respects
with all applicable requirements (including
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nondiscrimination requirements in effect as of the date hereof) of the Code,
including, but not limited to, Sections 79, 105, 106, 125, 401, 501, and 4975 of
the Code. For purposes of this SECTION 3.15, noncompliance with the Code or
ERISA is material if such noncompliance could have a material adverse effect on
the condition of one or more of the Company Plans or of the Company and the
Subsidiaries, taken as a whole, either as of the date hereof or upon discovery
of the noncompliance. All required contributions to the Company Plans through
the date hereof have been made. The Company and the Subsidiaries (each with
respect to the Company Plans), as well as the Company Plans, have no material
current or, to the knowledge of the Company, threatened liability of any kind to
any Person, including but not limited to any Governmental Entity, as of the date
hereof, other than for the payment of benefits in the ordinary course.
Section 3.16 ENVIRONMENTAL LAWS. To the best knowledge of the
Company: (i) the operations of the Company and each of the Subsidiaries comply
in all material respects with all applicable federal, state and local
environmental Laws and neither the condition of any property owned by the
Company or any of the Subsidiaries nor the operation of the business of any of
such entities violates in any material respect any applicable environmental Law;
(ii) none of the operations of the Company or any of the Subsidiaries is subject
to any judicial or administrative proceeding alleging the violation of any
environmental health or safety Law nor is it the subject of any claim alleging
damages to health or property pursuant to which the Company or any of the
Subsidiaries may be liable; (iii) none of the operations of the Company or any
of the Subsidiaries nor any of the properties owned by the Company or any of the
Subsidiaries is the subject of any federal, state or local investigation in
evaluating whether any remedial action is needed to respond to a release or
threatened release of any hazardous waste or substance from whatever source;
(iv) no condition or event has occurred which, with notice or the passage of
time or both, would constitute a material violation of any environmental Law and
neither the Company nor any of the Subsidiaries has any Liability in connection
with the storage or use of any pollutants, contaminants or hazardous or toxic
waste, substances or materials on or at any location owned or leased by the
Company or any of the Subsidiaries; (v) there are no underground storage tanks
now or heretofore located on any real property owned or leased by the Company or
any of the Subsidiaries; (vi) neither the Company nor any of the Subsidiaries
has ever been notified by a Governmental Entity, or any private party, that the
Company or any of the Subsidiaries is a potentially responsible party for
remedial costs spent addressing the release, or threat of a release, of a
hazardous substance into the environment pursuant to the Comprehensive
Environmental Response, Compensation or Liability Act, 42 U.S.C. ss.ss. 9601, ET
seq. or any corresponding state law.
Gold Banc may obtain at its option and expense on or prior to the
Closing Date an environmental audit of any or all properties and assets of the
Company and the Subsidiaries whether directly owned, leased or classified as
other real estate owned. Such environmental audit shall constitute a part of the
due diligence process, should Gold Banc choose to pursue it, and if Gold Banc
determines in its sole discretion that such environmental audit reflects the
potential of a material environmental problem with respect to any of the
properties or assets of the Company
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or any of the Subsidiaries, then Gold Banc may terminate this Agreement pursuant
to SECTION 8.3 hereof.
Section 3.17 LABOR MATTERS.
(a) The Company and the Subsidiaries are in compliance with all
Laws respecting employment and employment practices, terms and
conditions of employment and wages and hours, and are not engaged in any
unfair labor practice, except for such matters as would not have a
material adverse effect on the business, operations or financial
condition of the Company and its Subsidiaries, taken as a whole.
(b) There is no unfair labor practice complaint against the
Company or any of the Subsidiaries pending before the National Labor
Relations Board.
(c) Neither the Company nor any of the Subsidiaries is party to
any collective bargaining agreements and there is no labor strike,
dispute, slowdown, representation campaign or work stoppage actually
pending or to the knowledge of the Company threatened against or
affecting the Company or any of the Subsidiaries.
(d) No grievance or arbitration proceeding by any employee is
pending and no claim therefor has been asserted against the Company or
any of the Subsidiaries.
(e) Neither the Company nor any of the Subsidiaries is
experiencing any material work stoppage.
Section 3.18 YEAR 2000 COMPLIANCE. Each of the Company and the
Subsidiaries has (i) initiated a review and assessment of all areas material to
its business and operations (including those affected by suppliers and vendors)
that would reasonably be expected to be adversely affected by the Year 2000
Problem, (ii) developed a plan and time line for addressing the Year 2000
Problem on a timely basis, and (iii) to date, reasonably believes that all
computer applications that are material to the Company's and the Subsidiaries'
respective business and operations will be Year 2000 Compliant.
Section 3.19 LEGAL PROCEEDINGS. Except as disclosed in SCHEDULE
3.19 hereof, there are no Actions pending or, to the knowledge of the Company,
threatened against or affecting the properties, assets, rights or business of
the Company or any of the Subsidiaries, or the right to carry on or conduct
their business. There are no Actions pending or, to the knowledge of the
Company, threatened which could prevent or interfere with the consummation of
the transactions contemplated by this Agreement.
Section 3.20 CONTRACTS. Except as set forth on SCHEDULE 3.20
hereof, neither the Company nor either of the Subsidiaries is a party to or
subject to any:
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(a) employment contract;
(b) bonus, deferred compensation, equity incentive, savings,
profit sharing, severance pay, pension or retirement plan or
arrangement, except for the Company Plans referenced in SECTION 3.15
hereof;
(c) material lease or license with respect to any property, real
or personal, whether the Company or either of the Subsidiaries is
landlord or tenant, licensor or licensee, involving a liability or
obligation of the Company or any of the Subsidiaries as obligor, except
for the Leases referenced in SECTION 3.11 hereof;
(d) agreement, contract or indenture relating to the borrowing of
money by the Company or either of the Subsidiaries, excluding items made
in the ordinary course of business;
(e) agreement with any present or former officer, director,
stockholder or affiliate of the Company or any Subsidiary, or any Person
controlling, controlled by or under common control with any of the
foregoing; or
(f) other contract, agreement or other commitment which is
material to the business, operations, property, prospects or assets or
to the condition, financial or otherwise, of the Company or either of
the Subsidiaries or which involve a payment by the Company or any of the
Subsidiaries of more than $15,000 on an annual basis, other than loans
and investments made in the ordinary course of business.
Section 3.21 REQUIRED CONSENTS. Except as set forth in SCHEDULE
3.21 hereof, no Consent of any Person or Governmental Entity is necessary for
the consummation by the Company or either of the Subsidiaries of this Agreement
or any of the transactions contemplated hereby.
Section 3.22 BROKER'S FEES. Other than the engagement of The
Wallach Company, Inc. described on SCHEDULE 3.22 hereof, neither the Company,
the Subsidiaries nor any of the directors, trustees, officers or employees of
the Company or any of the Subsidiaries, has employed any broker or finder, or
incurred any liability for any broker's fees, commissions or finder's fees in
connection with the transactions contemplated by this Agreement.
Section 3.23 CONDUCT. From March 31, 1999 until the date
hereof:
(a) there has been no material adverse change in the financial
condition of, or in the properties, assets, liabilities, rights or
business, taken as a whole, of the Company or any of the Subsidiaries or
in the relationship of the Company or any of the Subsidiaries with
respect to their employees, creditors, suppliers, distributors,
customers or others with whom they have business relationships; and
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(b) the business affairs of the Company and the Subsidiaries have
been conducted and carried on only in their ordinary and regular course
of business, and neither the Company nor any of the Subsidiaries has
incurred or become subject to any liabilities or obligations other than
those incurred in their ordinary course of business.
Section 3.24 ABSENCE OF CERTAIN EVENTS. Except as contemplated by
this Agreement and set forth in SCHEDULE 3.24, since March 31, 1999, the Company
and the Subsidiaries have conducted their business only in the ordinary and
usual course, and there has not been: (i) any declaration, setting aside or
payment of any dividend or other distribution (whether in cash, stock or
property) with respect to the capital stock or other securities of, or other
ownership interests in, the Company, (ii) any amendment of any term of any
outstanding security of the Company or any of the Subsidiaries, (iii) any
repurchase, redemption or other acquisition by the Company or any of the
Subsidiaries of any outstanding shares of capital stock or other securities of,
or other ownership interests in, the Company or any of the Subsidiaries, (iv)
any incurrence, assumption or guarantee by the Company or any of the
Subsidiaries of any indebtedness for borrowed money (other than customer
deposits in the Bank, FHLB advances, federal funds purchases, and Federal
Reserve borrowings); (v) any creation or assumption by the Company or any of the
Subsidiaries of any Lien on any of their assets; (vi) any making of any material
loan, advance or capital contributions to or any material investment in any
Person except for loans and investments made in the ordinary course of business;
(vii) any material change in any method of accounting or accounting practice;
(viii) any (a) grant of any severance or termination pay to any director,
officer, or employee of the Company or any of the Subsidiaries, (b) entering
into of any employment, deferred compensation or other similar agreement (or any
amendment to any such existing agreement) with any director, officer or employee
of the Company or any of the Subsidiaries, (c) increase in benefits payable
under any existing severance or termination pay policies or employment
agreements with any director, officer or employee of the Company or any of the
Subsidiaries or (d) increase in compensation, bonus or other benefits payable to
any director, officer or employee of the Company or any of the Subsidiaries; or
(ix) any other transaction, commitment, dispute or other event or condition
(financial or otherwise) of any character, whether or not in the ordinary course
of business, individually or in the aggregate, which is reasonably likely to
have a material adverse effect on the business, operations, properties or
financial condition of the Company and the Subsidiaries, taken as a whole.
Section 3.25 LOANS.
(a) The Bank is not a party to any written or oral loan
agreement, note or borrowing arrangement which has been classified as
"substandard", "doubtful," "loss," "other loans especially mentioned" or
any comparable classifications by the Company or the Bank or banking
regulators, except as reflected on a list previously provided to Gold
Banc and Acquisition Subsidiary during the due diligence period;
(b) Except as set forth in SCHEDULE 3.25(B), neither the Company
nor any Subsidiary is a party to any written or oral loan agreement,
note, or borrowing
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arrangement, including any loan guaranty, with any director or executive
officer of the Company or any Subsidiary, or any person, corporation or
enterprise controlling, controlled by or under common control with any
of the foregoing;
(c) neither the Company nor any Subsidiary is a party to any
written or oral loan agreement, note or borrowing arrangement in
violation of any Law, which violation is reasonably likely to result in
a material adverse effect on the business, operations, properties or
financial condition of the Company and the Subsidiaries, taken as a
whole.
Section 3.26 OPINION OF FINANCIAL ADVISERS. The Company has
received the written opinion of The Wallach Company, Inc., investment advisor to
the Company, to the effect that, as of the date hereof, the consideration to be
received by the holders of Company Common Stock in the Merger is fair, from a
financial point of view, to such holders.
Section 3.27 ACCOUNTING MATTERS. Neither the Company nor any of
the Subsidiaries has through the date of this Agreement taken or agreed to take
any action that would prevent Gold Banc from accounting for the business
combination to be effected by the Merger as a pooling-of-interest.
Section 3.28 BENEFICIAL OWNERSHIP OF GOLD BANC COMMON STOCK. As
of the date hereof, neither the Company nor any of the Subsidiaries
"beneficially owns" (as defined in Rule 13d-3 under the Exchange Act) in the
aggregate any Gold Banc Common Stock.
Section 3.29 UNDISCLOSED LIABILITIES; ADVERSE AGREEMENTS.
(a) Except as disclosed in the Schedules hereto, or as disclosed
in the Company's financial statements, there are no liabilities of the
Company or any of the Subsidiaries of any kind whatsoever, whether
accrued, contingent, absolute, determined, determinable or otherwise,
that are reasonably likely to have a material adverse effect on the
business, operation, properties or financial condition of the Company
and the Subsidiaries, taken as a whole.
(b) Neither the Company nor any of the Subsidiaries is a party to
any Contract or any Order, or subject to any Law, which materially and
adversely affects or is reasonably likely to result in a material
adverse effect on the business, operations, properties or financial
condition of the Company or any of the Subsidiaries, except for such
Laws similarly affecting other entities in similar business to the
Company.
Section 3.30 DISCLOSURE. Copies of all documents heretofore or
hereafter delivered or made available to Gold Banc or Acquisition Subsidiary
pursuant hereto are and will be complete and accurate in all material respects.
When considered collectively, the representations and warranties of the Company
in this Agreement and in the other documents delivered pursuant hereto and in
any statement, document, certificate or exhibit furnished or to be
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furnished by the Company pursuant to this Agreement or in connection with the
transactions contemplated hereby do not contain and will not contain any untrue
statement of a material fact and do not omit and will not omit a material fact
necessary to make the statements contained herein or therein not misleading.
There is no fact which the Company has not disclosed in writing to Gold Banc or
the Acquisition Subsidiary which materially adversely affects, or would
reasonably be expected to materially adversely affect, the business, operations,
properties or financial condition of the Company and of the Subsidiaries, taken
as a whole.
Section 3.31 NO DISSENTER'S RIGHTS. The Company's Common Stock is
designated as a national market system security on its interdealer quotation
system by the National Association of Securities Dealers, Inc. and, under
Section 262 of the DGCL, the stockholders of the Company are not entitled to any
dissenter's rights in the Merger.
Section 3.32 DEDUCTIBILITY OF SEVERANCE PAYMENTS. No severance or
other payments to be made to the Significant Stockholders or otherwise by the
Company, any of the Subsidiaries, Gold Banc, or any of Gold Banc's subsidiaries
in connection with the Merger or upon a change in control of the Company will
constitute non-deductible "parachute payments" under Section 280G of the Code.
Section 3.33 ACCRUALS.
(a) The Company and the Bank have properly accrued consistent
with past practices for all current and carry-over vacation time for
their employees through the date hereof.
(b) The Company and the Bank have properly accrued consistent
with past practices for all mandatory and discretionary matching
contributions to the Company's 401(k) Plan through the date hereof.
(c) The Company and the Bank have properly accrued consistent
with past practices for discretionary bonuses that may be payable to
their employees as contemplated by SECTION 5.2(C)(I) AND (II) through
the date hereof.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF GOLD BANC
Gold Banc hereby makes the following representations and
warranties to the Company, each of which is true and correct on the date hereof
and shall be true and correct as of the Effective Time, each of which shall not
be affected by any investigation conducted by the Company or its
representatives.
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Section 4.1 CORPORATE.
(a) Gold Banc is a corporation duly organized, validly existing
and in good standing under the laws of the State of Kansas with all
requisite corporate power and authority to own, lease and operate its
properties and conduct its business as it is now being conducted. Gold
Banc is duly registered as a bank holding company under the BHC Act.
Gold Banc is duly qualified and in good standing in all states where the
conduct of its business so requires except where failure to so qualify
would not materially and adversely affect the business, operations,
properties or financial condition of Gold Banc.
(b) Acquisition Subsidiary is a wholly-owned subsidiary of the
Company and is a corporation duly organized, validly existing and in
good standing under the laws of the State of Kansas. Acquisition
Subsidiary is duly qualified to do business in all states in which the
conduct of its business requires such qualification except where the
failure to be so qualified would not materially and adversely affect the
business, operations, properties or financial condition of Acquisition
Subsidiary.
Section 4.2 CAPITAL STRUCTURE.
(a) GOLD BANC. As of the date hereof, the authorized capital
stock of Gold Banc consists only of 50,000,000 shares of Gold Banc
Common Stock and 50,000,000 shares of Gold Banc Preferred Stock, of
which 17,181,618 shares of Gold Banc Common Stock and no shares of Gold
Banc Preferred Stock are issued and outstanding. All outstanding shares
of Gold Banc Common Stock are validly issued, fully paid and
nonassessable and are not subject to preemptive rights. There are no
outstanding or authorized options, warrants, agreements, subscriptions,
calls, demands or rights of any character relating to the capital stock
of Gold Banc, whether or not issued, including without limitation
securities convertible into or evidencing the right to purchase any Gold
Banc Common Stock, Gold Banc Preferred Stock or any other securities of
Gold Banc, except as reflected in the Gold Banc SEC Documents.
(b) ACQUISITION SUBSIDIARY. The authorized capital stock of
Acquisition Subsidiary consists only of 1,000,000 shares of common
stock, par value $1.00 per share, of which 1,000 shares are issued and
outstanding. All of the issued and outstanding shares of common stock of
Acquisition Subsidiary are owned beneficially and of record, free and
clear of all Liens, by Gold Banc. All outstanding shares of common stock
of Acquisition Subsidiary are validly issued, fully paid and
nonassessable.
Section 4.3 AUTHORITY. (a) Gold Banc has all requisite corporate
power and authority to enter into this Agreement and all other agreements to be
executed and delivered by Gold Banc pursuant hereto, and, subject, with respect
to consummation of the Merger, to approval of this Agreement and the Merger by
the stockholders of Gold Banc in accordance with Rule 4460 of the National
Association of Securities Dealers' rules for issuers under Nasdaq ("Rule
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4460"), to perform its obligations hereunder and thereunder, and to consummate
the transactions contemplated hereby and thereby. The execution and delivery of
this Agreement and all other agreements to be executed and delivered by Gold
Banc pursuant hereto and thereto, the performance of Gold Banc's obligations
hereunder and thereunder, and the consummation of the transactions contemplated
hereby and thereby, have been duly authorized by all necessary corporate action
on the part of Gold Banc, subject, with respect to consummation of the Merger,
to approval of this Agreement and the Merger by the stockholders of Gold Banc in
accordance with Rule 4460. This Agreement has been, and all other agreements to
be executed and delivered by Gold Banc will be prior to the Effective Time, duly
executed and delivered by Gold Banc, subject, with respect to consummation of
the Merger, to such approval of the Agreement and the Merger by the stockholders
of Gold Banc in accordance with Rule 4460, and constitutes, or will constitute,
the legal, valid and binding obligations of Gold Banc, enforceable against Gold
Banc in accordance with their terms.
(b) Acquisition Subsidiary has all requisite corporate
power and authority to enter into this Agreement and all other agreements to be
executed and delivered by Acquisition Subsidiary pursuant hereto and, subject,
with respect to consummation of the Merger, to approval of this Agreement and
the Merger by the stockholders of Acquisition Subsidiary in accordance with the
KGCC, to perform its obligations hereunder and thereunder, and to consummate the
transactions contemplated hereby and thereby. The execution and delivery of this
Agreement and all other agreements to be executed and delivered by Acquisition
Subsidiary pursuant hereto and thereto, the performance of Acquisition
Subsidiary's obligations hereunder and thereunder, and the consummation of the
transactions contemplated hereby and thereby, have been duly authorized by all
necessary corporate action on the part of Acquisition Subsidiary, subject, with
respect to consummation of the Merger, to approval of this Agreement and the
Merger by the stockholders of Acquisition Subsidiary in accordance with the
KGCC. This Agreement has been, and all other agreements to be executed and
delivered by Acquisition Subsidiary will be prior to the Effective Time, duly
executed and delivered by Acquisition Subsidiary, subject, with respect to
consummation of the Merger, to such approval of the Agreement and the Merger by
the stockholders of Acquisition Subsidiary in accordance with the KGCC, and
constitutes, or will constitute, the legal, valid and binding obligations of
Acquisition Subsidiary, enforceable against Acquisition Subsidiary in accordance
with their terms.
Section 4.4 STOCKHOLDER APPROVAL. (a) The Board of Directors of
Gold Banc has directed, or will direct, that this Agreement and the transactions
contemplated hereby be submitted to Gold Banc's stockholders for approval at a
meeting of such stockholders and, except for adoption of this Agreement by the
requisite vote of Gold Banc's stockholders, no other Gold Banc stockholder
action is necessary to approve this Agreement and to consummate the transactions
contemplated hereby. The Board of Directors of Gold Banc will recommend that the
Gold Banc stockholders approve the transactions contemplated hereby, subject to
their fiduciary duties. The affirmative vote of the holders of a majority of the
shares of Gold Banc Common Stock represented at a meeting of Gold Banc's
stockholders at which a quorum is present is the only vote of the holders of any
class or series of Gold Banc's capital stock necessary to approve
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this Agreement and to consummate the transactions contemplated hereby. No
approval of a number of outstanding shares of capital stock of Gold Banc greater
than that required by Rule 4460 is required for approval of this Agreement and
the consummation of the transactions contemplated hereby.
(b) The Board of Directors of Acquisition Subsidiary
has directed, or will direct, that this Agreement and the transactions
contemplated hereby be submitted to Acquisition Subsidiary's stockholders for
approval at a meeting of such stockholders and, except for adoption of this
Agreement by the requisite vote of Acquisition Subsidiary's stockholders, no
other Acquisition Subsidiary stockholder action is necessary to approve this
Agreement and to consummate the transactions contemplated hereby. The Board of
Directors of Acquisition Subsidiary will recommend that the Acquisition
Subsidiary stockholders approve the transactions contemplated hereby, subject to
their fiduciary duties. The affirmative vote of the holders of a majority of the
outstanding shares of Acquisition Subsidiary common stock is the only vote of
the holders of any class or series of Acquisition Subsidiary's capital stock
necessary to approve this Agreement and to consummate the transactions
contemplated hereby. No approval of a number of outstanding shares of capital
stock of Acquisition Subsidiary greater than that required by the relevant
statutory provisions is required for approval of this Agreement and the
consummation of the transactions contemplated hereby.
Section 4.5 STATUS OF GOLD BANC COMMON STOCK TO BE ISSUED. The
shares of Gold Banc Common Stock into which the Company Common Stock are to be
exchanged or converted pursuant to this Agreement will be, when delivered as
specified in this Agreement, validly authorized and issued, fully paid and
nonassessable, and registered pursuant to an effective registration statement
under the Securities Act.
Section 4.6 NO VIOLATION.
(a) The execution and delivery of this Agreement and all other
agreements to be executed and delivered by Gold Banc and Acquisition
Subsidiary pursuant hereto, the performance of the obligations of Gold
Banc and Acquisition Subsidiary hereunder and thereunder, and the
consummation of the transactions contemplated hereby and thereby, will
not conflict with, violate or constitute a breach or default under (i)
the Articles of Incorporation or Bylaws of Gold Banc or Acquisition
Subsidiary (ii) any provision of any Contract, Lien, Order or other
restriction of any kind or character to which Gold Banc or Acquisition
Subsidiary is a party, or by which Gold Banc or Acquisition Subsidiary,
or any of their assets, is bound or (iii) result in the creation or
imposition of any Lien upon the capital stock or the assets of Gold Banc
or Acquisition Subsidiary.
(b) Gold Banc and Acquisition Subsidiary have not violated,
breached or defaulted, are not currently in violation, breach or default
of, and the consummation of the transactions contemplated hereby will
not cause any violation, breach or default of, any Laws, Orders,
Licenses or Contracts applicable to Gold Banc or Acquisition Subsidiary.
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(c) All Licenses required or necessary for Gold Banc or
Acquisition Subsidiary to carry on their respective businesses as they
are currently conducted have been obtained and are in full force and
effect. Gold Banc and Acquisition Subsidiary are in compliance with all
terms of the Licenses, except where the failure to so comply would not
have a material adverse effect on the business, operations, properties
or financial condition of Gold Banc or Acquisition Subsidiary.
Section 4.7 SEC DOCUMENTS. Gold Banc has made available to the
Company a true and complete copy of each report, schedule, registration
statement and definitive proxy statement filed by Gold Banc with the SEC since
January 1, 1996 (the "Gold Banc SEC Documents") which are all the documents
(other than preliminary material) that Gold Banc was required to file with the
SEC since such date. As of their respective dates, the Gold Banc SEC Documents
complied in all material respects with the requirements of the Securities Act or
the Exchange Act, as the case may be, and the rules and regulations of the SEC
thereunder applicable to such Gold Banc SEC Documents, and none of the Gold Banc
SEC Documents contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading. The financial statements of Gold Banc included in the Gold Banc
SEC Documents complied as to form in all material respects with the published
rules and regulations of the SEC with respect thereto, have been prepared in
accordance with GAAP (except as may be indicated in the notes thereto or, in the
case of the unaudited statements, as permitted by Rule 10-01 of Regulation S-X
of the SEC) and fairly present in accordance with applicable requirements of
GAAP (subject, in the case of the unaudited statements, to normal, recurring
adjustments, none of which were material) the consolidated financial position of
Gold Banc and its subsidiaries as of their respective dates and the consolidated
results of operations and the consolidated cash flows of Gold Banc for the
periods presented therein. Gold Banc has no material liability or obligation of
a type which would be included in a balance sheet prepared in accordance with
GAAP whether related to tax or non-tax matters, accrued or contingent, due or
not yet due, liquidated or unliquidated, or otherwise, except and to the extent
disclosed or reflected in the financial statements included in the Gold Banc SEC
Documents. Since March 31, 1999 there has been no material adverse change in the
financial condition, properties, assets, liabilities, business or prospects of
Gold Banc.
Section 4.8 INFORMATION SUPPLIED. When considered in the
aggregate, none of the information supplied or to be supplied by Gold Banc for
inclusion or incorporation by reference in (i) the Registration Statement will,
at the time the Registration Statement becomes effective under the Securities
Act or at the Effective Time, contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein not misleading, and (ii) the Proxy Statement will,
at the date mailed to stockholders of the Company and Gold Banc or at the times
of the meetings of such stockholders to be held in connection with the Merger or
at the Effective Time, contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary in order
to make the statements therein, in light of the circumstances under which they
are made, not
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misleading. If at any time prior to the Effective Time any event with respect to
Gold Banc or Acquisition Subsidiary, or with respect to other information
supplied by Gold Banc for inclusion in the Proxy Statement or Registration
Statement, shall occur which is required to be described in an amendment of, or
a supplement to, the Proxy Statement or the Registration Statement, such event
will be so described, and such amendment or supplement be promptly filed with
the SEC and, as required by law, disseminated to the stockholders of Gold Banc.
The Proxy Statement, insofar as it relates to Gold Banc or Acquisition
Subsidiary or other information supplied by Gold Banc for inclusion therein,
will comply as to form in all material respects with the provisions of the
Exchange Act and the rules and regulations thereunder.
Section 4.9 INTERNAL CONTROLS AND RECORDS. Gold Banc and its
subsidiaries maintain books of account which accurately and validly reflect, in
all material respects, all loans, mortgages, collateral and other business
transactions and maintain accounting controls sufficient to ensure that all such
transactions are (i) in all material respects, executed in accordance with its
management's general or specific authorization, and (ii) recorded in conformity
with GAAP.
Section 4.10 TAXES. Gold Banc has timely filed all tax returns
required to be filed by it, and Gold Banc has timely paid and discharged all
taxes due in connection with or with respect to the filing of such tax returns
and has timely paid all other taxes as are due, except such as are being
contested in good faith by appropriate proceedings and with respect to which
Gold Banc is maintaining reserves adequate for their payment. The liability for
taxes set forth on each such tax return adequately reflects the taxes required
to be reflected on such tax return. Neither the IRS nor any other Governmental
Entity or taxing authority or agency is now asserting, either through audits,
administrative proceedings, court proceedings or otherwise, or threatening to
assert against Gold Banc, any deficiency or claim for additional taxes. Gold
Banc has not granted any waiver of any statute of limitations with respect to,
or any extension of a period for the assessments of, any tax. There are no tax
liens on any assets of Gold Banc. Gold Banc has not received a ruling or entered
into an agreement with the IRS or any other Governmental Entity or taxing
authority or agency that would have a material adverse effect on the business,
operations, properties or financial condition of Gold Banc.
Section 4.11 REGULATORY FILINGS. Gold Banc has timely filed all
notices, reports, registrations and statements with all Governmental Entities
and has paid all fees and assessments due and payable in connection therewith.
Except for normal examinations and reviews conducted by Governmental Entities in
the regular course of the business of Gold Banc, no Governmental Entity has
initiated any proceeding or investigation into the business or operations of
Gold Banc. There is no unresolved material violation, criticism, or exception by
any Governmental Entity with respect to any written report or statement relating
to any examinations of Gold Banc. Gold Banc has made available to the Company
all reports of examinations conducted by any Governmental Entity with respect to
Gold Banc during the preceding three (3) years. Gold Banc will also make
available to the Company any subsequent reports of examination received from any
Governmental Entity between the date hereof and the Effective Time.
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Section 4.12 COMPLIANCE WITH ERISA. Each employee benefit plan
(as defined in Sections 3(3) or 3(37) of ERISA) of Gold Banc or any of its
subsidiaries or other similar plan of Gold Banc or any of its subsidiaries with
respect to which any governmental filings are required (collectively, the "Gold
Banc Plans") and each fiduciary (as defined in Section 3(21) of ERISA) of the
Gold Banc Plans are in compliance in all material respects with all applicable
requirements (including nondiscrimination requirements in effect as of the date
hereof) of the Code, including, but not limited to, Sections 79, 105, 106, 125,
401, 501, and 4975 of the Code. For purposes of this SECTION 4.12, noncompliance
with the Code or ERISA is material if such noncompliance could have a material
adverse effect on the condition of one or more of the Gold Banc Plans or of Gold
Banc and its subsidiaries, taken as a whole, either as of the date hereof or
upon discovery of the noncompliance. All required contributions to the Gold Banc
Plans through the date hereof have been made. Gold Banc and its subsidiaries
(each with respect to the Gold Banc Plans), as well as the Gold Banc Plans, have
no material current or, to the knowledge of Gold Banc, threatened liability of
any kind to any Person, including but not limited to any Governmental Entity, as
of the date hereof, other than for the payment of benefits in the ordinary
course.
Section 4.13 ENVIRONMENTAL LAWS. To the best knowledge Gold Banc:
(i) the operations of Gold Banc and each of its subsidiaries comply in all
material respects with all applicable federal, state and local environmental
Laws and neither the condition of any property owned by Gold Banc or any of its
subsidiaries nor the operation of the business of any of such entities violates
in any material respect any applicable environmental Law; (ii) none of the
operations of Gold Banc or any of its subsidiaries is subject to any judicial or
administrative proceeding alleging the violation of any environmental health or
safety Law nor is it the subject of any claim alleging damages to health or
property pursuant to which Gold Banc or any of its subsidiaries may be liable;
(iii) none of the operations of Gold Banc or any of its subsidiaries nor any of
the properties owned by Gold Banc or any of its subsidiaries is the subject of
any federal, state or local investigation in evaluating whether any remedial
action is needed to respond to a release or threatened release of any hazardous
waste or substance from whatever source; (iv) no condition or event has occurred
which, with notice or the passage of time or both, would constitute a material
violation of any environmental Law and neither Gold Banc or any of its
subsidiaries has any Liability in connection with the storage or use of any
pollutants, contaminants or hazardous or toxic waste, substances or materials on
or at any location owned or leased by Gold Banc or any of its subsidiaries; (v)
there are no underground storage tanks now or heretofore located on any real
property owned or leased by Gold Banc or any of its subsidiaries; (vi) neither
Gold Banc nor any of its subsidiaries has ever been notified by a Governmental
Entity, or any private party, that Gold Banc or any of its subsidiaries is a
potentially responsible party for remedial costs spent addressing the release,
or threat of a release, of a hazardous substance into the environment pursuant
to the Comprehensive Environmental Response, Compensation or Liability Act, 42
U.S.C. ss.ss. 9601, ET seq. or any corresponding state law.
Section 4.14 YEAR 2000 COMPLIANCE. Each of Gold Banc and its
subsidiaries has (i) initiated a review and assessment of all areas material to
its business and operations (including those affected by suppliers and vendors)
that would reasonably be expected to be adversely
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affected by the Year 2000 Problem, (ii) developed a plan and time line for
addressing the Year 2000 Problem on a timely basis, and (iii) to date,
reasonably believes that all computer applications that are material to Gold
Banc's and its subsidiaries' respective business and operations will be Year
2000 Compliant.
Section 4.15 LEGAL PROCEEDINGS. Except as disclosed in SCHEDULE
4.15 hereof, there are no Actions pending or threatened against or affecting the
properties, assets, rights or business of Gold Banc or its subsidiaries, or the
right to carry on or conduct its business. There are no Actions pending or, to
the knowledge of Gold Banc, threatened which could prevent or interfere with the
consummation of the transactions contemplated by this Agreement.
Section 4.16 REQUIRED CONSENTS. Except as set forth in SCHEDULE
4.16 hereof, no Consent of any Person or Governmental Entity is necessary for
the consummation by Gold Banc or Acquisition Subsidiary of this Agreement or any
of the transactions contemplated hereby.
Section 4.17 BROKER'S FEES. Neither Gold Banc, Acquisition
Subsidiary nor any of their respective directors, trustees, officers or
employees has employed any broker or finder, or incurred any liability for any
broker's fees, commissions or finder's fees in connection with the transactions
contemplated by this Agreement.
Section 4.18 CONDUCT. From March 31, 1999 until the date
hereof:
(a) there has been no material adverse change in the financial
condition of, or in the properties, assets, liabilities, rights or
business, taken as a whole, of Gold Banc or any of its subsidiaries or
in the relationship of Gold Banc or any of its subsidiaries with respect
to their employees, creditors, suppliers, distributors, customers or
others with whom they have business relationships; and
(b) the business affairs of Gold Banc and its subsidiaries have
been conducted and carried on only in their ordinary and regular course
of business, and neither Gold Banc nor any of its subsidiaries has
incurred or become subject to any liabilities or obligations other than
those incurred in their ordinary course of business.
Section 4.19 UNDISCLOSED LIABILITIES; ADVERSE AGREEMENTS.
(a) Except as disclosed in the Schedules hereto, or as disclosed
in Gold Banc's financial statements, there are no liabilities of Gold
Banc or any of its subsidiaries of any kind whatsoever, whether accrued,
contingent, absolute, determined, determinable or otherwise, that are
reasonably likely to have a material adverse effect on the business,
operation, properties or financial condition of Gold Banc and its
subsidiaries, taken as a whole.
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(b) Neither Gold Banc nor any of its subsidiaries is a party to
any Contract or any Order, or subject to any Law, which materially and
adversely affects or is reasonably likely to result in a material
adverse effect on the business, operations, properties or financial
condition of Gold Banc or any of its subsidiaries, except for such Laws
similarly affecting other entities in similar business to Gold Banc.
Section 4.20 DISCLOSURE. Copies of all documents heretofore or
hereafter delivered or made available to the Company pursuant hereto are and
will be complete and accurate. When considered collectively, the representations
and warranties of Gold Banc in this Agreement and in the other documents
delivered pursuant hereto and in any statement, document, certificate or exhibit
furnished or to be furnished by Gold Banc pursuant to this Agreement or in
connection with the transactions contemplated hereby do not contain and will not
contain any untrue statement of a material fact and do not omit and will not
omit a material fact necessary to make the statements contained herein or
therein not misleading. There is no fact which Gold Banc has not disclosed in
writing to the Company which materially adversely affects, or may materially
adversely affect the business, operations, properties or financial condition of
Gold Banc.
ARTICLE V
COVENANTS OF THE COMPANY
Section 5.1 AFFIRMATIVE COVENANTS OF THE COMPANY. Unless the
prior written consent of Gold Banc shall have been obtained, and which consent
will be given or denied within five Business Days of receipt of written request
for such consent (any request not denied during such period being considered an
approval), and except as otherwise expressly contemplated herein, the Company
shall and shall cause each of its Subsidiaries to (i) operate its business only
in the usual, regular, and ordinary course, consistent with past practices, (ii)
preserve intact its business organization and assets and maintain its rights and
franchises; (iii) preserve substantially the Company's and each of the
Subsidiaries' relationships with suppliers, customers and employees, (iv)
perform in all material respects the Company's and the Subsidiaries' obligations
under the Contracts and Licenses, (v) comply in all material respects with all
applicable Laws, (vi) maintain as valid and enforceable all policies of
insurance as referenced in SECTION 3.14 herein, (vii) provide updates to Gold
Banc and Acquisition Subsidiary with respect to those loans reflected on the
list previously provided to Gold Banc and Acquisition Subsidiary as referenced
on SCHEDULE 3.25(B) attached hereto, and (viii) except as may be required in the
exercise of the fiduciary duties of the Company's Board of Directors, take no
action which would (a) materially adversely affect the ability of any party to
obtain any Consents required for the transactions contemplated hereby, (b)
prevent the transactions contemplated hereby, including the Merger, from
qualifying as a reorganization within the meaning of Section 368(a) of the Code,
or (c) materially adversely affect the ability of any party to perform its
covenants and agreements under this Agreement.
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Section 5.2 NEGATIVE COVENANTS OF THE COMPANY. Except as
specifically permitted by this Agreement and except as may be required in the
exercise of the fiduciary duties of the Company's Board of Directors, from the
date of this Agreement until the earlier of the Effective Time or the
termination of this Agreement, the Company covenants and agrees that it will not
do or agree to do, or permit either of its Subsidiaries to do or agree to do,
any of the following without the prior written consent of Gold Banc, which
consent shall not be unreasonably withheld and which consent will be given or
denied within five Business Days (two Business Days in the case of a loan,
commitment or series of loans or commitments described in clause (a) below) of
receipt of written request for such consent (any request not denied during such
period being considered an approval):
(a) make any single loan (or series of loans to the same or
related persons) or any commitment (verbal or written) for a loan (or
series of commitments to the same or related persons) in an amount
greater than $500,000.00 other than renewals of existing loans or
commitments to loan;
(b) purchase or invest in any securities, other than in
compliance with the Bank's investment policy as in effect on the date
hereof, or make any material change in its investment portfolio;
(c) amend or adopt any employee benefit plan or grant any
increase in the rates of pay of their employees or any increase in the
compensation payable or to become payable, if any, to any director,
officer, trustee, employee or agent thereof, or contribute to any
pension plan or otherwise increase in any amount the benefits or
compensation of any such director, officer, trustee, employee or agent
under any pension plan or other contract or commitment; provided,
however, that (i) with respect to employees other than the Significant
Stockholders, annual merit increases (not to exceed in any case four
percent (4.0%) per annum) may be paid, and employee bonuses consistent
with past practices may be accrued up to (but not after) the Closing
Date, which accrued bonuses shall be paid consistent with past practices
in January 2000; (ii) with respect to the Significant Stockholders,
employee bonuses consistent with past practices may be accrued up to
(but not after) the Closing Date, which accrued bonuses may be paid
consistent (X) with past practices at the discretion of the Board of
Directors of the Surviving Corporation and (Y) with the terms and
conditions of the existing Employment Agreements of the Significant
Stockholders; (iii) the Company may continue to accrue consistent with
past practices for vacation time for its employees and shall pay to
individual employees on or prior to the Closing Date, amounts for
accrued and carry-over vacation time in excess of the vacation time the
Gold Banc will permit the employee to carry forward and take after the
Closing Date; and (iv) subject to SECTION 5.17 hereof, the Company may
continue to accrue consistent with past practices and shall pay, on or
prior to the Closing Date, mandatory and discretionary employer matching
contributions with respect to the Company's 401(k) plan.
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(d) make any capital expenditure or enter into any material
contract or commitment (except loan commitments as permitted in
Subparagraph (a) of this SECTION 5.2 and except commitments required for
its performance of its obligations hereunder); involving an obligation
or commitment in excess of $25,000 or engage in any transaction not in
its usual and ordinary course of business and consistent with past
practices;
(e) declare or pay any dividend or make any other distribution in
respect of any capital stock of or other beneficial interest in the
Company or either of its Subsidiaries, split, combine or reclassify any
shares of its capital stock or, directly or indirectly, redeem, purchase
or otherwise acquire any share of the capital stock of the Company or
either of its Subsidiaries, other than regular distributions in
accordance with the trust instrument of the Trust and any dividends from
the Bank to the Company to cover Company's expenses consistent with past
practices.
(f) amend the Certificate of Incorporation, Bylaws or any other
governing document of the Company or either of its Subsidiaries or make
any change in the authorized, issued or outstanding capital stock (or
any change in the par value thereof) of the Company or either of its
Subsidiaries;
(g) acquire or purchase any assets of or make any investment in
any financial institution other than the purchase of loans or
participations therein in the ordinary course of business, but subject
to SECTION 5.2(A);
(h) enter into any new line of business;
(i) acquire or agree to acquire, by merging or consolidating
with, or by purchasing a substantial equity interest in or a substantial
portion of the assets of, or by any other manner, any business or any
corporation, partnership, association or other business organization or
division thereof, or otherwise acquire any assets, which would be
material, individually or in the aggregate, to the Company or either of
its Subsidiaries, other than in connection with foreclosures,
settlements in lieu of foreclosure or troubled loan or debt
restructuring in the ordinary course of business consistent with prudent
banking practices;
(j) take any action that is intended or may reasonably be
expected to result in any of its representations and warranties set
forth in this Agreement being or becoming untrue in any material
respect, or in any of the conditions to the Merger set forth in ARTICLE
VII not being satisfied, or in a violation of any provision of this
Agreement except, in every case, as may be required by applicable Law;
(k) change its methods of accounting in effect on the date
hereof, except as required by changes in GAAP or regulatory accounting
principles as concurred with by the Company's independent accountants;
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(l) other than activities in the ordinary course of business
consistent with prior practice, sell, lease, encumber, assign or
otherwise dispose of any of its material assets or properties;
(m) file any application to relocate or terminate the operations
of any banking office;
(n) make any equity investment or commitment to make such an
investment in real estate or in any real estate development project,
other than in connection with foreclosures, settlements in lieu of
foreclosure or troubled loan or debt restructuring in the ordinary
course of business consistent with prudent banking practices;
(o) create, renew, amend or terminate or give notice of a
proposed renewal, amendment or termination of, any material Contract to
which the Company or either of its Subsidiaries is a party or by which
the Company or either of its Subsidiaries or their respective properties
is bound;
(p) make any new loan or new extension of credit, or commit to
make any such loan or extension of credit, to any director, officer or
trustee of the Company or either of its Subsidiaries without giving Gold
Banc two days' notice in advance of the approval of such loan or
extension of credit or commitment relating thereto;
(q) waive any material right, forgive any material debt or
release any material claim; provided, however, that the Company shall be
entitled to settle pending litigation and dispose of other real estate
owned for amounts up to $50,000; or
(r) incur or guaranty any debt (other than customer deposits in
the Bank, FHLB advances, federal funds purchases and Federal Reserve
borrowings).
Section 5.3 INSPECTION. Between the date hereof and the Closing
Date and upon reasonable notice, Gold Banc and its authorized representatives
shall be permitted full access during regular business hours to all properties,
books, records, contracts and documents of the Company and each of its
Subsidiaries. The Company shall furnish to Gold Banc and its authorized
representatives all information with respect to the affairs of the Company and
each of its Subsidiaries as Gold Banc may reasonably request.
Section 5.4 FINANCIAL STATEMENTS AND CALL REPORTS. From and after
the date hereof through the Closing Date, the Company shall deliver to Gold Banc
monthly reports of condition and income statements of the Bank and shall deliver
to Gold Banc copies of the call reports for the Bank as filed with any
regulatory agency promptly after such filing.
Section 5.5 TAX RETURNS. Within sixty (60) days after the Closing
Date, the Surviving Corporation shall prepare and file consolidated federal and
state income tax returns for the Company and its Subsidiaries covering the stub
period beginning on the first day of the
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Company's current fiscal year and ending at the Effective Time, which returns
shall be reviewed by KPMG LLP, accountants for Gold Banc.
Section 5.6 RIGHT TO ATTEND MEETINGS. The Bank shall allow a
representative of Gold Banc to attend as an observer all meetings of the Board
of Directors of the Bank and all meetings of the committees of each such board,
including, without limitation, the audit and executive committees thereof and
any other meetings of the Bank's officials at which policy is being made. The
Bank shall give reasonable notice to Gold Banc of any such meeting and, if
known, the agenda for or business to be discussed at such meeting. The Bank
shall provide to Gold Banc all information provided to the directors on all such
boards and committees in connection with all such meetings or otherwise provided
to the directors and shall provide any other financial reports or other analyses
prepared for senior management of the Bank.
Section 5.7 DATA PROCESSING. The Company shall, and shall cause
each of its Subsidiaries to, cooperate with Gold Banc in taking those planning
actions necessary to be in a position to convert, as soon as practicable after
the Effective Time, its data processing procedures and formats to procedures and
formats used by Gold Banc. Gold Banc shall provide such assistance and
consultation as the Company may reasonably require in such planning process.
Section 5.8 NO SOLICITATION.
(a) None of the Company, any Subsidiary, or any officer,
director, trustee or employee of, or any investment banker, attorney or
other advisor or representative of, the Company or any Subsidiary,
shall, directly or indirectly, (i) solicit, initiate, facilitate, assist
or encourage the submission of, any Acquisition Proposal, or approve or
authorize any Acquisition Proposal or (ii) participate in any
discussions or negotiations regarding or take any other action to
expedite any inquiries or the making of any proposal that constitutes,
or may reasonably be expected to lead to, any Acquisition Proposal, or
(iii) furnish to any Person (other than Gold Banc, Acquisition
Subsidiary, an affiliate or associate of Gold Banc or Acquisition
Subsidiary or an officer, employee or other authorized representative of
Gold Banc, Acquisition Subsidiary or such affiliate or associate or the
Company's counsel, accountants and financial adviser, solely for use in
connection with the transactions contemplated hereby) any information
with respect to the Company or any Subsidiary that may reasonably be
expected to lead to an Acquisition Proposal; PROVIDED, HOWEVER, that to
the extent required by the fiduciary obligations of the Board of
Directors of the Company, as determined in good faith by the Board of
Directors based on the advice of outside counsel, the Company may (A) in
response to an unsolicited request therefor, furnish information with
respect to the Company or any Subsidiary to any Person pursuant to a
customary confidentiality agreement and discuss such information with
such Person, (B) upon receipt by the Company of an Acquisition Proposal,
following delivery to Gold Banc of the notice required pursuant to
SECTION 5.7(B) hereof, participate in negotiations regarding such
Acquisition Proposal, and (C) modify or withdraw its
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recommendation that the stockholders of the Company vote in favor of the
Merger as contemplated by SECTION 2.11 hereof.
(b) The Company shall (i) promptly notify Gold Banc of (A) the
existence of any request for confidential information with respect to,
or the receipt of, any Acquisition Proposal, (B) any inquiry or
discussions with respect to, or which would reasonably be expected to
lead to, any Acquisition Proposal, (C) the execution of a
confidentiality agreement with respect to an Acquisition Proposal, (D)
the execution of any agreement with respect to the terms of an
Acquisition Proposal, (E) the furnishing of any information in
contemplation of an Acquisition Proposal, whether or not pursuant to a
confidentiality agreement and (F) any endorsement, approval or
recommendation of an Acquisition Proposal by the Company's Board of
Directors or any committee thereof, (ii) promptly describe to Gold Banc
the terms and conditions of any Acquisition Proposal in reasonable
detail, and (iii) furnish to Gold Banc all information made available to
any Person making the Acquisition Proposal, or contemplating the making
of an Acquisition Proposal, subject to a customary confidentiality
agreement.
(c) Except as may be required in the exercise of the fiduciary
duties of the Board of Directors of the Company, the Company shall not
take any action that would enhance the ability of any other Person
making an Acquisition Proposal to obtain the approval of the Company's
stockholders or otherwise consummate such Acquisition Proposal without
also taking a comparable action that would similarly enhance the ability
of Gold Banc to obtain any necessary approval of the Company's
stockholders of, and otherwise to consummate, the Merger contemplated by
this Agreement or an alternative transaction initiated by Gold Banc, and
concurrently withdrawing any impediments thereto that do not similarly
impede such other Person.
Section 5.9 REGULATORY APPROVALS. Subject to the terms and
conditions of this Agreement, the Company agrees to, and to cause each of its
Subsidiaries to, use its reasonable best efforts to cooperate with Gold Banc in
Gold Banc's efforts to secure as expeditiously as practicable all the necessary
approvals, regulatory or otherwise, needed to consummate the transactions
contemplated herein.
Section 5.10 INFORMATION. The Company shall provide such
information and answer such inquiries as Gold Banc may reasonably request or
make concerning the subject matter of the representations and warranties of the
Company herein.
Section 5.11 TAX-FREE REORGANIZATION TREATMENT. The Company shall
not intentionally take or cause or permit to be taken any action, whether before
or after the Effective Time, which would disqualify the Merger as a tax-free
"reorganization" within the meaning of Section 368(a) of the Code (subject to
required recognition of gain or loss with respect to cash paid for fractional
shares pursuant hereto).
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Section 5.12 POOLING-OF-INTEREST ACCOUNTING TREATMENT. The
Company shall not intentionally take or cause or permit to be taken any action,
whether before or after the Effective Time, which would disqualify the Merger
from receiving pooling-of-interest accounting treatment.
Section 5.13 COOPERATION BY THE COMPANY. The Company shall use
all commercially reasonable efforts to take all actions and to do all things
necessary or advisable to consummate the transactions contemplated by this
Agreement and to cooperate with Gold Banc and Acquisition Subsidiary in
connection therewith, including using commercially reasonable efforts to obtain
all required Consents.
Section 5.14 YEAR 2000 COMPLIANCE. With respect to all computer
hardware, computer software applications, and bank services and products, the
Company shall, and shall cause the Bank to (i) use its best efforts to comply
with all Federal Financial Institution Examination Council Year 2000 regulations
and guidelines and (ii) take all action necessary to receive a rating of
"Satisfactory" or better on any Year 2000 compliance examination conducted by
its respective examining agencies.
Section 5.15 PROXY STATEMENT AND REGISTRATION STATEMENT. If at
any time prior to the Effective Time any event with respect to the Company or
the Subsidiaries, or with respect to other information supplied by the Company
for inclusion in the Proxy Statement or Registration Statement, shall occur
which is required to be described in an amendment of, or a supplement to, the
Proxy Statement or the Registration Statement, the Company will promptly notify
Gold Banc of such event and use all commercially reasonable efforts to ensure
that such event will be so described, and that such amendment or supplement be
promptly filed with the SEC and, as required by law, disseminated to the
stockholders of the Company. The Company shall use all commercially reasonable
efforts to ensure that the Proxy Statement, insofar as it relates to the Company
or the Subsidiaries or other information supplied by the Company for inclusion
therein, will comply as to form in all material respects with the provisions of
the Exchange Act and the rules and regulations thereunder.
Section 5.16 CONFIDENTIALITY. Except as and to the extent
required by Laws, the Company and the Subsidiaries will not disclose or use, and
will direct their representatives not to disclose or use to the detriment of
Gold Banc or any of its subsidiaries any Gold Banc Confidential Information
furnished, or to be furnished, to the Company, any of its subsidiaries or their
representatives at any time or in any manner other than in connection with the
evaluation of the transactions contemplated herein. "Gold Banc Confidential
Information" includes any information about Gold Banc or its subsidiaries and
their business unless (a) such information is already known to the Company, any
of its subsidiaries or their representatives not bound by a duty of
confidentiality or such information becomes publicly available through no fault
of the Company, any of its subsidiaries or their representatives, (b) the use of
such information is necessary or appropriate in making any filing or obtaining
any consent or approval required for the consummation of the transactions
contemplated herein, or (c) the furnishing or use of such information is
required by or necessary or appropriate in connection with legal proceedings.
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Following the termination of this Agreement, upon written request of Gold Banc,
each of the Company and the Subsidiaries will promptly return to Gold Banc or
destroy any Gold Banc Confidential Information in its possession and certify in
writing to Gold Banc that it has so returned or destroyed such Gold Banc
Confidential Information.
Section 5.17 EMPLOYEE BENEFIT PLANS.
(a) The Company shall, prior to the Closing Date, adopt any and
all resolutions and take all other actions that are necessary or
appropriate to (i) make the necessary contributions to the Union
Bankshares, Ltd. Profit Sharing 401(k) Plan (the "401(k) Plan") to
satisfy the Company's 401(k) safe harbor contribution obligation for the
partial plan year ending on the 401(k) Plan termination date; (ii)
consistent with past practices, make a discretionary profit sharing
contribution (not to exceed four percent (4%) of the employees'
compensation, as defined under the 401(k) Plan) to the 401(k) Plan for
the partial plan year ending on the 401(k) Plan termination date; (iii)
except as set forth immediately above in (i) and (ii) of this paragraph,
cease all other contributions to the 401(k) Plan as of the day before
the Closing Date; (iv) terminate the 401(k) Plan and fully vest all
participant account balances in such plan as of the day before the
Closing Date; (v) resign as plan administrator of the 401(k) Plan; and
(vi) secure the resignation of the current trustees of the 401(k) Plan.
The Surviving Corporation shall (i) assume full responsibility and bear
full expense in amending the 401(k) Plan following the Closing Date in
such manner as is necessary for the 401(k) Plan to be in compliance with
all applicable laws as of the 401(k) Plan's termination date and (ii)
apply for and obtain a favorable determination letter from the IRS
following which it will distribute the assets of the 401(k) Plan. Gold
Banc agrees to accept its appointment, or will appoint an affiliate
corporation, as successor plan trustee and successor plan administrator.
Gold Banc will provide to the Company form resolutions and other
materials prior to the closing necessary for the effectuation of the
termination of the 401(k) Plan by the Company, which materials the
Company and the plan administrator and trustees shall be entitled to
rely upon without incurring any liability.
(b) All of the Company's welfare plans (as defined in Section
3(1)) of ERISA (but regardless of whether such plan is covered by ERISA)
(the "Welfare Plans"), shall be maintained by the Surviving Corporation
until such time as Surviving Corporation wishes to terminate such plans.
The parties agree that the plan administrators and trustees of each
Welfare Plan will resign as of the Closing Date and be replaced with
persons designated by Gold Banc. After the Closing Date, the Surviving
Corporation shall become the plan sponsor of the Welfare Plans. Gold
Banc and Company agree to cooperate in fulfilling this covenant.
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Section 5.18 DEDUCTIBILITY OF SEVERANCE PAYMENTS.
(a) The Company shall, and shall cause each of the Subsidiaries
to, use all reasonable efforts to ensure that no severance or other
payments are made to the Significant Stockholders or otherwise by the
Company or any of the Subsidiaries which constitute non-deductible
"parachute payments" under Section 280G of the Code.
(b) The Company shall obtain and deliver to Gold Banc on or prior
to the Closing Date the 280G Opinion Letter contemplated by SECTION 8.14
hereof.
ARTICLE VI
COVENANTS OF GOLD BANC AND ACQUISITION SUBSIDIARY
Section 6.1 REGULATORY APPROVALS. Subject to the terms and
conditions of this Agreement, Gold Banc and Acquisition Subsidiary agree to use
their reasonable best efforts to secure as expeditiously as practicable all the
necessary approvals, regulatory or otherwise, needed to consummate the
transactions contemplated herein and agree to exercise best efforts to file
applications relating to such approvals within thirty (30) days from the date
hereof or as soon thereafter it is reasonably possible. Gold Banc and
Acquisition Subsidiary shall provide to Company's Counsel a copy of all
applications for such approvals and shall keep such counsel or the Company
advised of the status of the regulatory review process.
Section 6.2 INFORMATION. Gold Banc and Acquisition Subsidiary
shall provide such information and answer such inquiries as the Company may
reasonably request or make concerning the subject matter of the representations
and warranties of Gold Banc and Acquisition Subsidiary herein.
Section 6.3 TAX-FREE REORGANIZATION TREATMENT. Neither Gold Banc
nor Acquisition Subsidiary shall intentionally take or cause to be taken any
action, whether before or after the Effective Time, which would disqualify the
Merger as a tax-free "reorganization" within the meaning of Section 368(a) of
the Code.
Section 6.4 EMPLOYEE BENEFIT PLANS; PRIOR SERVICE CREDIT.
Employees of the Company or a Subsidiary shall be eligible to participate in all
Gold Banc employee benefit plans (as defined in Sections 3(3) or 3(37) of ERISA)
in accordance with their terms; provided, however, that for purposes of
determining eligibility to participate in and vesting of benefits under Gold
Banc's employee benefit plans, Gold Banc shall recognize years of service by
such employees with the Company or any Subsidiary prior to the Effective Time.
Section 6.5 ASSUMPTION OF COMPANY STOCK OPTIONS. Each outstanding
Company Stock Option shall be assumed by Gold Banc on the same terms and
conditions, except that the options shall be modified (i) to provide for the
issuance of shares of Gold Common Stock, (ii) to adjust each option price by
dividing such option price by the Exchange Ratio and
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(iii) to adjust the number of shares subject to each option by multiplying such
number of shares by the Exchange Ratio, all as contemplated by Section 424(a) of
the Code.
Section 6.6 CONFIDENTIALITY. Except as and to the extent required
by Laws, Gold Banc and Acquisition Subsidiary will not disclose or use, and will
direct their representatives not to disclose or use to the detriment of the
Company or any of the Subsidiaries any Company Confidential Information
furnished, or to be furnished, to Gold Banc, Acquisition Subsidiary or their
representatives at any time or in any manner other than in connection with the
evaluation of the transactions contemplated herein. "Company Confidential
Information" includes any information about the Company or the Subsidiaries and
their business unless (a) such information is already known to Gold Banc,
Acquisition Subsidiary or their representatives not bound by a duty of
confidentiality or such information becomes publicly available through no fault
of Gold Banc, Acquisition Subsidiary or their representatives, (b) the use of
such information is necessary or appropriate in making any filing or obtaining
any consent or approval required for the consummation of the transactions
contemplated herein, or (c) the furnishing or use of such information is
required by or necessary or appropriate in connection with legal proceedings.
Following the termination of this Agreement, upon written request of the
Company, each of Gold Banc and Acquisition Subsidiary will promptly return to
the Company or destroy any Company Confidential Information in its possession
and certify in writing to the Company that it has so returned or destroyed such
Company Confidential Information.
Section 6.7 POOLING-OF-INTEREST ACCOUNTING TREATMENT. Gold Banc
shall not intentionally take or cause or permit to be taken any action, whether
before or after the Effective Time, which would disqualify the Merger from
receiving pooling-of-interest accounting treatment.
Section 6.8 COOPERATION BY GOLD BANC AND ACQUISITION SUBSIDIARY.
Gold Banc and Acquisition Subsidiary shall use all commercially reasonable
efforts to take all actions and to do all things necessary or advisable to
consummate the transactions contemplated by this Agreement and to cooperate with
the Company in connection therewith.
Section 6.9 YEAR 2000 COMPLIANCE. With respect to all computer
hardware, computer software applications, and bank services and products, Gold
Banc shall, and shall cause its subsidiaries to, (i) use their best efforts to
comply with all Federal Financial Institution Examination Council Year 2000
regulations and guidelines and (ii) take all action necessary to receive a
rating of "Satisfactory" or better on any Year 2000 compliance examination
conducted by their respective examining agencies.
Section 6.10 INDEMNIFICATION OF DIRECTORS AND INSURANCE.
(a) Following the Effective Time, Gold Banc shall cause the
Surviving Corporation to continue to indemnify the Company's directors
and officers, in the same manner and to the same extent as such
indemnification is provided for in the Company's Certificate of
Incorporation and Bylaws as of the date of this Agreement.
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(b) After the Effective Time, Gold Banc shall cause the Surviving
Corporation to maintain in effect the current policies of directors' and
officers' liability insurance maintained by the Company, or a tail
policy of comparable coverage and amount, with respect to matters
arising before the Effective Time covering the persons who are directors
or officers of the Company immediately prior to the Effective Time, for
a period of up to three years following the Effective Time, provided
that the aggregate premium for such period shall not exceed $35,000.
Section 6.11 EMPLOYEE BONUSES. Gold Banc shall cause to be paid
the employee bonuses payable pursuant to SECTION 5.2(C) hereof in accordance
with the terms of SECTION 5.2(C).
ARTICLE VII
CONDITIONS PRECEDENT TO OBLIGATIONS
OF THE COMPANY
The obligations of the Company to consummate the transactions
contemplated hereunder shall be subject to satisfaction on or before the Closing
Date of all of the following conditions, except such conditions as the Company
may waive in writing:
Section 7.1 REPRESENTATIONS, WARRANTIES AND COVENANTS. All
representations and warranties of Gold Banc and Acquisition Subsidiary contained
in this Agreement shall be true and correct in all material respects on and as
of the Closing Date, except for changes permitted by or contemplated by this
Agreement, and except that to the extent any such representation or warranty is
made solely as of a specified date, such representation or warranty need only be
true and correct in all material respects as of such date. Each of Gold Banc and
Acquisition Subsidiary shall have performed in all material respects all
agreements and covenants required by this Agreement to be performed by it on or
prior to the Closing Date. The Company shall have received a certificate signed
by an executive officer of Gold Banc, dated the Closing Date, to the foregoing
effects.
Section 7.2 REGULATORY AUTHORITY APPROVAL. Orders and Consents in
form and substance reasonably satisfactory to the Company shall have been
entered by or obtained from the appropriate regulatory authorities authorizing
consummation of the transactions contemplated by this Agreement pursuant to the
provisions of the BHC Act and any other applicable Law.
Section 7.3 LITIGATION. There shall not be pending or threatened
any Action which the Company reasonably believes would result in restraining,
enjoining or prohibiting the consummation of the transactions contemplated by
this Agreement.
Section 7.4 APPROVAL BY STOCKHOLDERS. The stockholders of the
Company shall have duly approved and adopted this Agreement, the Merger and the
transactions contemplated hereby to the extent required by applicable Law and
the Certificate of Incorporation and Bylaws of the Company and the Bank, and the
stockholders of Gold Banc and of Acquisition Subsidiary
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shall have duly approved and adopted this Agreement, the Merger and the
transactions contemplated hereby to the extent required by applicable Law, the
Articles of Incorporation and Bylaws of Gold Banc and of Acquisition Subsidiary,
and the rules of Nasdaq.
Section 7.5 ADVERSE CHANGES. From the date hereof to the Closing
Date, there shall have been no material adverse change in the financial
condition of, or in the properties, assets, liabilities, rights or business of
Gold Banc and its subsidiaries, taken as a whole, and taking into account for
this purpose the proceeds of any applicable insurance.
Section 7.6 FEDERAL TAX OPINION. The Company shall have received,
at Gold Banc's expense, an opinion of Gold Banc's Counsel, addressed to the
Company and its stockholders in form and substance reasonably satisfactory to
the Company and the Company's Counsel, dated the Closing Date, to the effect
that the Merger will be a tax-free reorganization under Section 368(a) of the
Code and no gain or loss will be recognized by the stockholders of the Company.
Section 7.7 OPINION OF COUNSEL. The Company shall have received,
at Gold Banc's expense, an opinion of Gold Banc's Counsel, dated the Closing
Date, in form and substance reasonably satisfactory to the Company, covering
customary corporate law matters.
Section 7.8 MARKET PRICE OF GOLD BANC COMMON STOCK. The Average
Gold Banc Stock Price shall not be less than $11.00.
ARTICLE VIII
CONDITIONS PRECEDENT TO OBLIGATIONS OF
GOLD BANC AND ACQUISITION SUBSIDIARY
The obligations of Gold Banc and Acquisition Subsidiary to consummate
the transactions hereunder shall be subject to the satisfaction on or before the
Closing Date of all of the following conditions, except such conditions as Gold
Banc or Acquisition Subsidiary may waive in writing:
Section 8.1 REPRESENTATIONS, WARRANTIES AND COVENANTS. All
representations and warranties of the Company contained in this Agreement shall
be true and correct in all material respects on and as of the Closing Date,
except for changes permitted by or contemplated by this Agreement, and except
that to the extent any such representation or warranty is made solely as of a
specified date, such representation or warranty need only be true and correct in
all material respects as of such date. The Company and each Subsidiary shall
have performed all agreements and covenants required by this Agreement to be
performed by it on or prior to the Closing Date. Gold Banc shall have received a
certificate signed by an executive officer of the Company, dated the Closing
Date, to the foregoing effects.
Section 8.2 ADVERSE CHANGES. From the date hereof to the
Closing Date, there shall have been no material adverse change in the financial
condition of, or in the properties,
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assets, liabilities, rights or business of the Company and its Subsidiaries,
taken as a whole, and taking into account for this purpose the proceeds of any
applicable insurance.
Section 8.3 REGULATORY AUTHORITY APPROVAL. Orders and Consents in
form and substance reasonably satisfactory to Gold Banc shall have been entered
by or obtained from the appropriate regulatory authorities authorizing
consummation of the transactions contemplated hereby pursuant to the provisions
of the Bank Holding Company Act and any other applicable federal or state
banking regulatory statute or rule, and no such order, Consent or approval shall
be conditioned or restricted in any manner which in the reasonable judgment of
Gold Banc would materially adversely affect the operations of or be unduly
burdensome to Gold Banc.
Section 8.4 LITIGATION. At the Closing Date, there shall not be
pending or threatened any Action which Gold Banc reasonably believes would
result in restraining, enjoining or prohibiting the consummation of the
transactions contemplated by this Agreement.
Section 8.5 FINANCIAL MEASURES. On the Closing Date, the Total
Equity Capital of the Bank shall be not less than $23,000,000, the reserve for
loan and lease loss of the Bank shall be not less than $2,700,000 and the total
indebtedness of the Company (on an unconsolidated basis) shall not exceed
$10,400,000. The parties acknowledge and agree that all future earnings from the
date hereof forward shall accrue to the retained earnings or reserves of the
Company or the Bank, respectively, and shall not result in an increase of any
consideration payable by Gold Banc or Acquisition Subsidiary hereunder.
Section 8.6 APPROVAL BY STOCKHOLDERS. The stockholders of the
Company shall have duly approved and adopted this Agreement and the other
transactions contemplated hereby to the extent required by applicable Law and
the Certificate of Incorporation and Bylaws of the Company and the stockholders
of Gold Banc and of Acquisition Subsidiary shall have duly approved and adopted
this Agreement and the other transactions contemplated hereby to the extent
required by applicable Law, the Articles of Incorporation and Bylaws of Gold
Banc and of Acquisition Subsidiary and the rules of Nasdaq.
Section 8.7 TAX REPRESENTATIONS. The Company and each stockholder
of the Company owning more than 10% of the outstanding Company Common Stock
shall have made those representations reasonably requested by Gold Banc's
Counsel and necessary to enable Gold Banc's Counsel to render the opinion
described in SECTION 8.9 hereof.
Section 8.8 AFFILIATE AGREEMENTS. Each person who is an
"affiliate" (for purposes of Rule 145 under the Securities Act and for
pooling-of-interests accounting treatment) of the Company at the time this
Agreement is submitted to approval of the stockholders of the Company shall
deliver to Gold Banc a letter in substantially the form set forth in EXHIBIT B
(the "Affiliate Letter") hereto.
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Section 8.9 FEDERAL TAX OPINION. Gold Banc shall have received an
opinion of Stinson, Mag & Fizzell, P.C., counsel to Gold Banc ("Gold Banc's
Counsel"), in form and substance reasonably satisfactory to Gold Banc, dated the
Closing Date, stating that the Merger will be treated as a tax-free
reorganization within the meaning of Section 368(a) of the Code.
Section 8.10 OPINION OF COUNSEL. Gold Banc shall have received an
opinion of Davis, Graham & Stubbs LLP ("Company's Counsel"), dated the Closing
Date, in form and substance reasonably satisfactory to Gold Banc and Gold Banc's
counsel covering customary corporate law matters, including without limitation
the opinion of Company's Counsel (subject to reasonable assumptions as to
factual matters and conditions that will continue to exist after the Closing)
that, after the consummation of the Merger, the interest paid on subordinated
debentures issued by the Company to the Trust, will be deductible by the
Surviving Corporation as interest payments for federal income tax purposes.
Section 8.11 QUALIFICATION FOR POOLING-OF-INTEREST TREATMENT.
Gold Banc shall have received an opinion from an accounting firm reasonably
acceptable to Gold Banc that the transactions contemplated hereby will qualify
for pooling of-interest accounting treatment and that all conditions applicable
thereto (including limitation of any cash consideration paid by Gold Banc
hereunder and absence of any capital transactions involving any parties hereto)
have been met.
Section 8.12 REGARDING THE SIGNIFICANT STOCKHOLDERS.
(a) The Company and Gold Banc shall have received from each
Significant Stockholder a letter of resignation from all positions held
by such Significant Stockholder with the Company or any of the
Subsidiaries prior to the Closing (except that Zueck shall remain as a
director and the Chairman of the Board of the Bank).
(b) The Company shall have paid to the Significant Stockholders
the severance payments to which they are entitled under their Employment
Agreements.
(c) Bruce E. Hall shall have executed and delivered to Gold Banc
a Non-Compete Agreement substantially in the form attached hereto as
EXHIBIT C.
(d) Charles R. Harrison shall have executed and delivered to Gold
Banc a Non-Compete Agreement substantially in the form attached hereto
as EXHIBIT D
(e) Herman J. Zueck shall have executed and delivered to Gold
Banc a Non-Compete Agreement substantially in the form attached hereto
as EXHIBIT E
Section 8.13 COMPANY OPTIONS. Neither the Company's Board of
Directors nor any committee thereof shall have authorized any cash payment in
connection with any outstanding Company Stock Option, and each member of each
committee empowered to act with respect to any stock option plan shall have
resigned.
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Section 8.14 DEDUCTIBILITY OF SEVERANCE PAYMENTS. The Company
shall have obtained and Gold Banc shall have received from Baird, Kurtz &
Dobson, accountants for the Company, a written (i) calculation of all payments
due to the Significant Stockholders in connection with the Merger or upon the
occurrence of a change in control under their respective employment agreements,
stock option plans, deferred compensation plans, this Agreement, the Exhibits
hereto or otherwise, (ii) certification that such calculation was completed in
accordance with such agreements and plans, and (iii) opinion that no such
severance or other payments to the Significant Stockholders will constitute any
non-deductible "parachute payments" under Section 280G of the Code (the "280G
Opinion Letter").
ARTICLE IX
NON-SURVIVAL OF REPRESENTATIONS AND WARRANTIES
Section 9.1 NO SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties contained herein shall not survive after the
Effective Time. The representations and warranties contained herein shall not be
deemed modified or waived by any investigation made by the party(ies) entitled
to the benefit of such representations and warranties or by their
representatives. Except as otherwise provided herein, any waiver or modification
of any representation or warranty shall be effective only if made in writing and
signed by the party(ies) entitled to the benefit of such representation or
warranty.
ARTICLE X
SECURITIES LAWS MATTERS
Section 10.1 REGISTRATION STATEMENT AND PROXY STATEMENT. Gold
Banc shall, at Gold Banc's expense as soon as practicable prepare and file a
registration statement on Form S-4 to be filed with the SEC pursuant to the
Securities Act for the purpose of registering the shares of Gold Banc Common
Stock to be issued in the Merger (the "Registration Statement"). The Company,
Gold Banc and Acquisition Subsidiary shall each provide promptly to the other
such information concerning their respective businesses, financial conditions,
and affairs as may be required or appropriate for inclusion in the Registration
Statement or the proxy statement to be used in connection with the special
stockholders' meetings of the Company and Gold Banc to be called for the purpose
of considering and voting on the Merger (the "Proxy Statement"). The Company,
Gold Banc and Acquisition Subsidiary shall each cause their counsel, auditors
and other experts to cooperate with the other's counsel, auditors and other
experts in the preparation and filing of the Registration Statement and the
Proxy Statement. Gold Banc shall not include in the Registration Statement any
information concerning the Company or any Subsidiary to which the Company shall
reasonably and timely object in writing. Gold Banc, Acquisition Subsidiary and
the Company shall use their reasonable best efforts to have the Registration
Statement declared effective under the Securities Act as soon as may be
practicable and thereafter the Company shall distribute the Proxy Statement to
its stockholders in accordance with applicable laws not fewer than 20 business
days prior to the date on which this Agreement is to be submitted to its
stockholders for voting thereon. If necessary, in light of developments
occurring subsequent to
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the distribution of the Proxy Statement, Gold Banc shall prepare and file such
amendments or supplements to the Registration Statement and the Proxy Statement
and Gold Banc and the Company shall mail or otherwise furnish to their
stockholders such amendments to the Proxy Statement or supplements to the Proxy
Statement as may, in the reasonable opinion of Gold Banc, Acquisition Subsidiary
or the Company, be necessary so that the Proxy Statement, as so amended or
supplemented, will contain no untrue statement of any material fact and will not
omit to state any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading, or as may be necessary to comply with applicable law. Gold
Banc and Acquisition Subsidiary shall not be required to maintain the
effectiveness of the Registration Statement after delivery of the Gold Banc
Common Stock issued pursuant hereto for the purpose of resale of Gold Banc
Common Stock by any Person. For a period of at least two years from the
Effective Time, Gold Banc shall make available "adequate current public
information" within the meaning of and as required by paragraph (c) of Rule 144
adopted pursuant to the Securities Act.
Section 10.2 STATE SECURITIES LAWS. The parties hereto shall
cooperate in making any filings required under the securities laws of any state
in order to qualify or register the Gold Banc Common Stock so it may be offered
and sold lawfully in such state in connection with the Merger or to obtain an
exemption from such qualification or registration.
Section 10.3 PUBLICATION OF COMBINED FINANCIAL RESULTS. Gold Banc
shall publish financial results covering at least 30 days of post-Merger
combined operations of Gold Banc and the Company, ending on a normal month-end
closing date, as soon as practicable after the Effective Time, unless the first
30 day period of combined operations ending on a normal month-end closing date
ends on the normal closing date of an annual report on Form 10-K or quarterly
report on Form 10-Q.
Section 10.4 AFFILIATES. Certificates representing shares of Gold
Banc Common Stock issued to "Affiliates" (as defined in Rules 145 and 405
adopted under the Securities Act) of the Company pursuant to this Agreement will
be subject to stop transfer orders (as reasonably required in connection with
Rule 145) and will bear a restrictive legend set out in the Affiliate Letter;
provided, however, that following publication of financial results covering at
least thirty (30) days of combined operations of Gold Banc and the Company and
upon receipt of an opinion of counsel reasonably satisfactory to Gold Banc that
a proposed sale, pledge, transfer or other disposition of a specified number of
shares of Gold Banc Common Stock by an Affiliate will comply with or will be
exempt from the Securities Act, Gold Banc shall, as promptly as practicable
after receipt of the stock certificates representing such Affiliate's Gold Banc
Common Stock (and in any event within seven (7) business days after such
receipt), direct the transfer agent for the Gold Banc Common Stock to remove the
stop transfer order related thereto and reissue a stock certificate evidencing
such shares to the Affiliate without such restrictive legend.
Section 10.5 INDEMNIFICATION BY GOLD BANC. Gold Banc agrees to
indemnify and hold harmless the Company and its stockholders, directors,
officers, employees, representatives
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and agents from and against any and all Damages, whether arising under federal
or state securities or Blue Sky laws or otherwise, which may be asserted against
any of them and which arise as a result of any alleged act or failure to act, or
any alleged statement or omission, of Gold Banc done or made in connection with
the Registration Statement, Proxy Statement, or any other statement or form
filed or required to be filed with the SEC or any state securities department or
delivered or required to be delivered to the holders of Company Common Stock or
Gold Banc Common Stock except to the extent any such alleged act, failure to
act, statement or omission is a result of information provided by the Company.
Section 10.6 INDEMNIFICATION BY THE COMPANY. The Company agrees
to indemnify and hold harmless Gold Banc and its stockholders, directors,
officers, employees, representatives and agents from and against any and all
Damages, whether arising under federal or state securities or Blue Sky laws or
otherwise, which may be asserted against any of them and which arise as a result
of any alleged act or failure to act, or any alleged statement or omission, of
the Company or any Subsidiary done or made in connection with the Registration
Statement, Proxy Statement, or any other statement or form filed or required to
be filed with the SEC or any state securities department or delivered or
required to be delivered to the holders of Company Common Stock or Gold Banc
Common Stock except to the extent any such alleged act, failure to act,
statement or omission is a result of information provided by Gold Banc.
ARTICLE XI
TERMINATION
Section 11.1 BASIS FOR TERMINATION. This Agreement and the Merger
contemplated hereby may be terminated at any time prior to the Closing Date:
(a) by mutual consent in writing of the parties hereto;
(b) by either party if the transactions contemplated hereby have
not closed before 270 days;
(c) by Gold Banc upon written notice to the Company if any
regulatory approval of the transactions contemplated under the terms of
this Agreement shall be denied or if any such regulatory approval shall
be conditioned or restricted in any manner which in the reasonable
judgment of Gold Banc would materially adversely affect the operations
of or would be unduly burdensome to Gold Banc;
(d) by Gold Banc or the Company if the other party has materially
breached this Agreement and has not cured such breach within the earlier
of (i) 30 days after the non-breaching party shall have given notice to
the breaching party of the existence of such breach or (ii) the Closing
Date;
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(e) by Gold Banc or the Company upon written notice to the other
of any condition imposed for the benefit of such party that shall not
have been satisfied or waived prior to the Closing Date;
(f) by the Company if it receives an unsolicited Acquisition
Proposal as contemplated by SECTION 5.7 hereof, which the Board of
Directors of the Company, in good faith, believes is superior to the
Merger contemplated hereby;
(g) by Gold Banc upon receipt of written notice from the Company
pursuant to SECTION 5.7(B) hereof that the Company has entered into an
agreement to engage in a transaction relating to an Acquisition Proposal
with any Person other than Gold Banc or its Affiliates or the Company's
Board of Directors or any committee thereof has endorsed, approved or
recommended an Acquisition Proposal made by any Person other than Gold
Banc or its Affiliates; or
(h) by the Company, within five (5) business days after the
meeting of the stockholders of the Company held to vote on this
Agreement, if the Gold Banc Measurement Price is less than $11.
As used in this SECTION 11.1, actions contemplated as being taken by Gold Banc
or the Company must be taken by their respective Boards of Directors or the
Executive Committee of such Boards.
Section 11.2 EFFECT OF TERMINATION. Except as set forth in
SECTION 11.3, in the event of termination of this Agreement for any reason set
forth in SECTION 11.1, other than a breach thereof, no party hereto shall have
any liability to the other of any nature whatsoever, including any liability for
Damages suffered or claimed to be suffered by reason thereof.
Section 11.3 TERMINATION FEE. The Company agrees to pay to Gold
Banc upon demand a termination fee of $2,000,000 (the "Termination Fee") if this
Agreement is terminated (i) by the Company pursuant to SECTION 11.1(F) or (ii)
by Gold Banc pursuant to SECTION 11.1(G).
Section 11.4 SPECIFIC PERFORMANCE.
(a) Subject to SECTION 11.1, in the event Gold Banc and
Acquisition Subsidiary have performed all of their obligations hereunder
and all conditions precedent to the obligation of the Company to close
have been met or waived in writing by the Company, but the Company fails
or otherwise refuses to close, then either or both of Gold Banc and
Acquisition Subsidiary shall be entitled to enforce the terms hereof by
an Action seeking specific performance. Such right is not exclusive and
shall not preclude Gold Banc or Acquisition Subsidiary from also
pursuing an Action to recover any and all damages resulting from the
Company's default hereunder. All remedies available to Gold Banc or
Acquisition Subsidiary hereunder or by law are cumulative.
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(b) In the event the Company has performed all of its obligations
hereunder and all conditions precedent to the obligations of Gold Banc
and Acquisition Subsidiary to close have been met or waived in writing
by Gold Banc and Acquisition Subsidiary, but Gold Banc and Acquisition
Subsidiary fail or otherwise refuse to close, then the Company shall be
entitled to enforce the terms hereof by an Action seeking specific
performance. Such right is not exclusive and shall not preclude the
Company from also pursuing an Action to recover any and all damages
resulting from the default by Gold Banc and Acquisition Subsidiary
hereunder. All remedies available to the Company hereunder or by law are
cumulative.
ARTICLE XII
MISCELLANEOUS
Section 12.1 AMENDMENT. This Agreement may be amended by the
parties hereto, by action taken or authorized by their respective Boards of
Directors, at any time before or after approval of the matters presented in
connection with the Merger by the stockholders of the Company, Gold Banc or
Acquisition Subsidiary, but, after any such approval, no amendment shall be made
which by law requires further approval by such stockholders without such further
approval. This Agreement may not be amended except by an instrument in writing
signed on behalf of each of the parties hereto.
Section 12.2 EXTENSION: WAIVER. At any time prior to the
Effective Time, the parties hereto, by action taken or authorized by their
respective Board of Directors, may, to the extent legally allowed, (a) extend
the time for the performance of any of the obligations or other acts of the
other parties hereto, (b) waive any inaccuracies in the representations and
warranties contained herein or in any document delivered pursuant hereto and (c)
waive compliance with any of the agreements or conditions contained herein. Any
agreement on the part of a party hereto to any such extension or waiver shall be
valid only if set forth in a written instrument signed on behalf of such party.
Section 12.3 EXPENSES. Except as set forth herein, each party
shall be responsible for its own expenses in connection with this transaction.
Specifically, each party shall be responsible for their own legal and accounting
fees and any related costs or charges associated with the negotiation, execution
and consummation of this Agreement.
Section 12.4 PARTIES IN INTEREST. This Agreement and the rights
hereunder are not assignable unless such assignment is consented to in writing
by all parties hereto. Except as otherwise expressly provided herein, all of the
terms and provisions of this Agreement shall be binding upon, shall inure to the
benefit of and shall be enforceable by the respective heirs, beneficiaries,
personal and legal representatives, successors and permitted assigns of the
parties hereto. Except as expressly provided herein, nothing in this Agreement,
express or implied, is intended to confer on any person other than the parties
hereto or their respective successors and assigns, any rights, remedies or
obligations or liabilities under or by reason of this Agreement.
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Section 12.5 ENTIRE AGREEMENT; AMENDMENTS; WAIVER. This Agreement
contains the entire understanding of Gold Banc, Acquisition Subsidiary and the
Company with respect to the Merger and supersedes all prior agreements and
understandings, whether written or oral, between them with respect to the Merger
contemplated herein. This Agreement may be amended only by a written instrument
duly executed by the parties or their respective successors or permitted
assigns. Any condition to a party's obligation hereunder may be waived by such
party in writing.
Section 12.6 NOTICES. All notices, requests, demands or other
communications hereunder shall be in writing and shall be deemed to have been
duly given (a) when personally delivered, (b) on the first Business Day
following the Business Day on which delivered to a nationally recognized
overnight delivery service, (c) if sent by facsimile transmission, on the date
that transmission is received by a responsible employee of the recipient in
legible form (it being agreed that the burden of proving receipt will be on the
sender and will not be met by a transmission report generated by the sender's
facsimile machine) or (d) if sent by certified or registered mail, return
receipt requested, on the Business Day that it is delivered or its delivery is
attempted, in any case addressed to the parties at the following addresses or at
such other address as shall be given in like manner by any party to the other:
If to the Company:
Charles R. Harrison
Union Bankshares, Ltd.
1825 Lawrence Street
Suite 444
Denver, Colorado 80202
Telephone: (303) 298-5352
FAX: (303)672-5410
with a copy to:
Ronald R. Levine, II
Davis, Graham & Stubbs LLP
Suite 4700
370 Seventeenth Street
Denver, CO 80202
Telephone: (303) 892-7514
FAX: (303) 893-1979
423985 v7
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<PAGE>
If to Gold Banc:
Michael W. Gullion
Gold Banc Corporation, Inc.
11301 Nall Avenue
Leawood, KS 66211
Telephone: (913) 451-8050
FAX: (913) 451-8004
with a copy to:
Michael W. Lochmann
Stinson, Mag & Fizzell, P.C.
1201 Walnut Street
Suite 2800
Kansas City, MO 64106
Telephone: (816) 842-8600
FAX: (816)691-3495
Section 12.7 LAW GOVERNING. This Agreement shall be governed by
and construed and enforced in accordance with the laws of the State of Kansas,
except to the extent that Delaware corporate law applies to the provisions
hereof relating to the Company Merger.
423985 v7
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the date first above written.
GOLD BANC CORPORATION, INC.
By: /s/ MALCOLM M. ASLIN
-------------------------------------
Name: Malcolm M. Aslin
Title: President and
Chief Operating Officer
ATTEST:
/s/ KEITH E. BOUCHEY
- -------------------------
Name: Keith E. Bouchey
Title: Secretary
GOLD BANC ACQUISITION CORPORATION
VIII, INC.
By: /s/ MICHAEL W. GULLION
-------------------------------------
Name: Michael W. Gullion
Title: President and
Chief Executive Officer
ATTEST:
/s/ KEITH E. BOUCHEY
- -------------------------
Name: Keith E. Bouchey
Title: Secretary
UNION BANKSHARES, LTD.
By: /s/ CHARLES R. HARRISON
-------------------------------------
Name: Charles R. Harrison
Title: Chief Executive Officer
ATTEST:
/s/ BRUCE E. HALL
- -------------------------
Name: Bruce E. Hall
Title: Secretary
423985 v7
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<PAGE>
STATE OF KANSAS )
) ss.
COUNTY OF JOHNSON )
ON THIS 9th day of August 1999, before me the undersigned, a
Notary Public in and for the County and the aforesaid, came Malcolm M. Aslin,
President and Chief Operating Officer of Gold Banc Corporation, Inc., a Kansas
corporation, and Keith E. Bouchey, Secretary, who are personally known to me to
be such persons, and who is personally known to me to be the same persons who
executed the within instrument on behalf of said corporation, and such persons
duly acknowledged the execution of the same to be the act and deed of said
corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal, the day and year last above written.
/s/ THERESE A. ARMSTRONG
----------------------------------------
NOTARY PUBLIC
My Appointment Expires: 10-21-2000
423985 v7
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<PAGE>
STATE OF KANSAS )
) ss.
COUNTY OF JOHNSON )
ON THIS 9th day of August 1999, before me the undersigned, a
Notary Public in and for the County and state aforesaid, came Michael W.
Gullion, President and Chief Executive Officer of Gold Banc Acquisition
Corporation VIII, Inc., a Kansas corporation, and Keith E. Bouchey, Secretary,
who are personally known to me to be such persons, and who is personally known
to me to be the same persons who executed the within instrument on behalf of
said corporation, and such persons duly acknowledged the execution of the same
to be the act and deed of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal, the day and year last above written.
/s/ THERESE A. ARMSTRONG
----------------------------------------
NOTARY PUBLIC
My Appointment Expires: 10-21-2000
423985 v7
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<PAGE>
STATE OF COLORADO )
) ss.
COUNTY OF DENVER )
ON THIS 9th day of August 1999, before me the undersigned, a
Notary Public in and for the County and state aforesaid, came Charles R.
Harrison, Chief Executive Officer of Union Bankshares, Ltd., a Delaware
corporation, and Bruce E. Hall, Secretary, who are personally known to me to be
such persons, and who is personally known to me to be the same persons who
executed the within instrument on behalf of said corporation, and such persons
duly acknowledged the execution of the same to be the act and deed of said
corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal, the day and year last above written.
/s/ LORI ZIMMERMAN
----------------------------------------
NOTARY PUBLIC
My Appointment Expires: 10-11-99
423985 v7
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<PAGE>
EXECUTION COPY
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement"), dated as of August 9,
1999, is made by and among CHARLES R. HARRISON, an individual, HERMAN J. ZUECK,
an individual, and BRUCE E. HALL, an individual (collectively, the "Significant
Stockholders"), BRUCE E. HALL, as trustee of the Colleen M. Thompson Irrevocable
Trust, dated June 7, 1999 (the "Thompson Trustee"), and BRUCE E. HALL, as
trustee of the Andrea M. Harrison, dated June 7, 1999 Irrevocable Trust (the
"Harrison Trustee") (the Thompson Trustee and the Harrison Trustee are
collectively referred to herein as the "Trustees"), and GOLD BANC CORPORATION,
INC., a Kansas corporation ("Gold Banc").
RECITALS
A. Gold Banc, Gold Banc Acquisition Corporation VIII, Inc., a
Kansas corporation ("Acquisition Subsidiary"), Union Bankshares, Ltd., a
Delaware corporation (the "Company"), are entering into an Agreement and Plan of
Reorganization, dated the date hereof (the "Merger Agreement"), which provides,
among other things, that Acquisition Subsidiary will merge into the Company (the
"Merger"). Capitalized terms used herein that are not otherwise defined herein
shall have the meanings given to such terms in the Merger Agreement.
B. As a condition to Gold Banc entering into the Merger
Agreement, Gold Banc has required that the Significant Stockholders and the
Trustees agree, and in order to induce Gold Banc to enter into the Merger
Agreement, the Significant Stockholders and the Trustees have agreed, to enter
into this Agreement with respect to all the shares of Company Common Stock now
owned or which may hereafter be acquired by the Significant Stockholders and the
Trustees (the "Controlled Shares").
AGREEMENT
ACCORDINGLY, in consideration of the premises, the mutual
covenants and agreements set forth herein and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
1. Voting Agreement. The Significant Stockholders and the Trustees
hereby agree that during the time this Agreement is in effect, at any meeting of
the stockholders of the Company, however called, and in any action by consent of
the stockholders of the Company, the Significant Stockholders and the Trustees
shall vote their Controlled Shares: (a) in favor of the Merger, the Merger
Agreement (as amended from time to time) and the transactions contemplated by
the Merger Agreement, and (b) against any competing Acquisition Proposal, or any
other action or agreement that would result in a breach of any representation,
warranty,
424141 v3
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<PAGE>
covenant or agreement of the Company set forth in the Merger Agreement, or which
could result in any of the conditions to the Company's obligations under the
Merger Agreement not being fulfilled.
2. Representations and Warranties. The Significant Stockholders and the
Trustees hereby represent and warrant to Gold Banc as follows:
(a) Authority. The Significant Stockholders and the Trustees have
all necessary power and authority to execute and deliver this Agreement, to
perform their obligations hereunder and to consummate the transactions
contemplated hereby. This Agreement has been duly and validly executed and
delivered by the Significant Stockholders and the Trustees and constitutes the
legal, valid and binding obligation of the Significant Stockholders and the
Trustees, enforceable against the Significant Stockholders and the Trustees in
accordance with its terms.
(b) No Conflict. The execution and delivery of this Agreement by
the Significant Stockholders and the Trustees does not, and the performance of
this Agreement by the Significant Stockholders and the Trustees will not, (i)
conflict with or violate the Certificate of Incorporation or Bylaws or other
organizational documents of the Company or any Subsidiary, (ii) conflict with or
violate any Law applicable to the Significant Stockholders or the Trustees or to
which the Controlled Shares are subject, (iii) conflict with, violate or result
in any breach of or constitute a default (or an event that which notice or lapse
of time or both would become a default) under, or give to others any rights of
termination, amendment, acceleration or cancellation of, or result in the
creation of a Lien on any of the Controlled Shares, pursuant to any Contract or
Lien or other instrument or obligation to which the Significant Stockholders or
the Trustees are parties, or to which the Significant Stockholders or the
Trustees or the Controlled Shares are subject or (iv) conflict with or violate
the terms of the trust instruments to which the Trustees are subject.
(c) No Consents. The execution and delivery of this Agreement by
the Significant Stockholders and the Trustees does not, and the performance of
this Agreement by the Significant Stockholders and the Trustees will not,
require the Consent of any Person, including any Government Entity.
3. Title to the Controlled Shares. As of the date hereof, the
Significant Stockholders are the record and beneficial owners of 737,658 shares
of Company Common Stock. Such shares are all the Company Common Stock owned,
either of record or beneficially, by the Significant Stockholders. The Thompson
Trustee is the record owner and has the power to vote 50,000 shares of Company
Common Stock. Such shares are all of the Company Common Stock owned of record by
the Thompson Trustee. The Harrison Trustee is the record owner and has the power
to vote 50,000 shares of Company Common Stock. Such shares are all of the
Company Common Stock owned of record by the Harrison Trustee. The Controlled
Shares are owned free and clear of all Liens, rights of first refusal,
limitations on the Significant Stockholders' or the Trustees' voting rights, and
other encumbrances of any nature whatsoever. The Significant Stockholders
424141 v3
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<PAGE>
and the Trustees have not appointed or granted any proxies, which appointments
or grants are still effective, with respect to the Controlled Shares.
4. Covenants. The Significant Stockholders and the Trustees covenant and
agree as follows:
(a) No Inconsistent Agreements. Except as contemplated by this
Agreement and the Merger Agreement, the Significant Stockholders and the
Trustees will not enter into any voting agreement or grant any proxy or power of
attorney with respect to the Controlled Shares that are inconsistent with this
Agreement.
(b) No Transfer of Stock. The Significant Stockholders and the
Trustees will not, without the prior written consent of Gold Banc, offer for
sale, sell, transfer, tender, pledge, encumber, assign, hypothecate, cause to be
redeemed or purchased or otherwise transfer or dispose of, directly or
indirectly, record or beneficial ownership of any of the Controlled Shares.
(c) No Exercise of Options. The Significant Stockholders and the
Trustees will not, without the prior written consent of Gold Banc, exercise,
sell or transfer any option or contract to purchase, purchase any option to
sell, grant any option right or warrant to purchase, or otherwise transfer or
dispose of, directly or indirectly, record or beneficial ownership of any option
or warrant to purchase, or acquire, any Company Common Stock or any securities
convertible into any Company Common Stock.
5. Miscellaneous.
(a) Termination. This Agreement shall terminate upon (i) the
Effective Time of the Merger or (ii) termination of the Merger Agreement
pursuant to Section 11.1.
(b) Specific Performance. The parties hereto agree that
irreparable damage would occur in the event a provision of this Agreement is not
performed in accordance with the terms hereof and that Gold Banc shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at law or in equity.
(c) Entire Agreement. This Agreement and the Merger Agreement
constitute the entire Agreement between Gold Banc, the Significant Stockholders
and the Trustees with respect to the subject matter hereof and thereof and
supersedes all prior agreements and understandings, both written and oral
between Gold Banc, the Significant Stockholders and the Trustees with respect to
the subject matter hereof.
(d) Amendment. The Agreement may not be amended except by an
instrument in writing signed by the parties hereto.
424141 v3
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<PAGE>
(e) Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law,
or public policy, all other conditions and provisions of this agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of this Agreement is not effected in any manner materially adverse to
any party. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible to the fullest extent permitted by applicable law
in a mutually acceptable manner in order that the terms of this Agreement remain
as originally contemplated to the fullest extent possible.
(f) Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Colorado.
424141 v3
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed and delivered as of the date first written above.
/s/ CHARLES R. HARRISON
----------------------------------------
Charles R. Harrison
/s/ HERMAN J. ZUECK
----------------------------------------
Herman J. Zueck
/s/ BRUCE E. HALL
----------------------------------------
Bruce E. Hall
/s/ BRUCE E. HALL, trustee
----------------------------------------
Bruce E. Hall, trustee of the Colleen M.
Thompson trust, dated June 7, 1999
/s/ BRUCE E. HALL, trustee
----------------------------------------
Bruce E. Hall, trustee of the Andrea M.
Harrison trust, dated June 7, 1999
GOLD BANC CORPORATION, INC.
By: /s/ KEITH E. BOUCHEY
-------------------------------------
Name: Keith E. Bouchey
Title: Executive VP-Mergers &
Acquisitions
424141 v3
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FOR IMMEDIATE RELEASE:
August 9, 1999
Contact: Charles R. Harrison, Union Bankshares, Ltd. (303) 298-5352
Herman J. Zueck, Union Bank & Trust (303) 744-3221
UNION BANKSHARES, LTD. ENTERS INTO AGREEMENT TO BE ACQUIRED
BY GOLD BANC CORPORATION, INC.
IN $65 MILLION TAX-FREE STOCK SWAP
DENVER, CO -- Union Bankshares, Ltd. (NASDAQ:UBSC), today announced that it has
entered into an agreement providing for the acquisition of Union Bankshares,
Ltd. (the "Company") by Gold Banc Corporation, Inc. (NASDAQ:GLDB) of
Leawood, Kansas.
The agreement provides for the acquisition of all the Common Stock of the
Company, including shares subject to option, for a purchase price of $23.05 per
share, to be paid in shares of Gold Banc common stock. On August 9, 1999, the
closing price on the NASDAQ Stock Market for the Company's Common Stock was
$12.50. The exchange ratio will be determined by dividing $23.05 by the average
price for Gold Banc common stock during the 10-day trading period ending three
days prior to closing, unless the average price is less than $13 or greater than
$16, in which case the average price shall be fixed at $13 or $16, respectively.
On August 9, 1999, the closing price on the NASDAQ Stock Market for Gold Banc
Common Stock was $11.50. If the average price of Gold Bank common stock falls
below $11 for a period of 10 trading days immediately prior to approval by the
Company's stockholders, the Company will be entitled to terminate the
transaction. The transaction will be structured as a tax-free reorganization
and will be accounted for as pooling-of-interests. It is expected that
Charles R. Harrison,
<PAGE>
Chairman of the Board and Chief Executive Officer of Union Bankshares, Ltd.,
would join the Board of Directors of Gold Banc after closing.
The transaction is subject to the approval of the shareholders of the
Company and Gold Banc and the approval of certain regulatory authorities, among
other standard terms and conditions. The transaction is expected to close in
the fourth quarter of 1999.
Union Bankshares, Ltd., through its wholly-owned subsidiary Union Bank &
Trust, operates from 7 locations in the Denver metropolitan area. At June 30,
1999, the Company had assets of approximately $339.9 million, deposits of
approximately $270 million and stockholders' equity of approximately $19.4
million.
Gold Banc is a bank holding company headquartered in Leawood, Kansas with
banks in Kansas, northwestern Missouri and Oklahoma. Gold Banc also includes a
full-service broker/dealer and investment management firm, a computer and
networking solutions company, a trust company, a mortgage banking operation, and
a multi-line insurance agency. Gold Banc enjoys strong internal growth and is
one of the country's fastest growing community banking and financial services
organizations.
Charles R. Harrison, Chairman and CEO of Union Bankshares, Ltd. remarked:
"Our board of directors is pleased to join the Gold Banc family and, on behalf
of our shareholders, we believe the terms of this transaction represent an
appropriate recognition of the underlying value of our franchise. We believe the
enhanced financial leverage and operational strength of the combined Gold Banc
- -- Union Bank organization will allow us to jointly pursue even more attractive
growth opportunities beneficial to customers and shareholders alike."
Herman J. Zueck, Chairman and CEO of Union Bank & Trust, added: "Joining
Gold Banc will allow us to preserve the valuable relationships our local board
of directors have built in their
<PAGE>
respective communities. Union Bank and Gold Banc are ideal strategic partners
because we have similar cultures focused on providing personalized service,
which is key to attracting and retaining individual and small business customers
in a highly competitive marketplace. Gold Banc also will enhance our competitive
position by enabling us to provide a broader range of the financial services
that today's busy, convenience-oriented customers expect from their community
bank."
Union Bank & Trust will continue to operate under the Union Bank & Trust
name with an ongoing philosophy of personal attention and professional service.
Herman Zueck will serve as Chairman of the Board of Union Bank & Trust. Union
Bank's customer contact staff will remain intact as well, and customers can
expect to see the same people they have come to know and trust each time they
visit any Union Bank & Trust location.
"SAFE HARBOR" STATEMENT UNDER THE PRIVATE SECURITIES LITIGATION REFORM ACT
OF 1955. Statements which are not historical facts contained in this document
are forward looking statements that involve risks and uncertainties that could
cause actual results to differ from projected results. Factors that could cause
results to differ materially include, among others: the inability of parties to
agree on the terms of the definitive agreements, regulatory concerns, general
economic conditions in the Company's and Gold Banc's markets, the monetary
policy of the Federal Reserve Board, changes in the interest rates, inflation,
competition in the banking business, change in the state and federal regulatory
regime applicable to the Company's and the Bank's operations, the results of
financing efforts and other risk factors detailed in the Company's Forms
10-KSGB, 10-QSB and 8-K filed with the Securities and Exchange Commission.
<TABLE> <S> <C>
<ARTICLE> 9
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-END> JUN-30-1999
<CASH> 16,033,000
<INT-BEARING-DEPOSITS> 190,559,000
<FED-FUNDS-SOLD> 4,900,000
<TRADING-ASSETS> 0
<INVESTMENTS-HELD-FOR-SALE> 107,585,000
<INVESTMENTS-CARRYING> 145,092,000
<INVESTMENTS-MARKET> 145,281,000
<LOANS> 160,146,000
<ALLOWANCE> (2,715,000)
<TOTAL-ASSETS> 339,860,000
<DEPOSITS> 269,973,000
<SHORT-TERM> 38,600,000
<LIABILITIES-OTHER> 1,595,000
<LONG-TERM> 10,304,000
0
0
<COMMON> 9,674,000
<OTHER-SE> 9,714,000
<TOTAL-LIABILITIES-AND-EQUITY> 339,860,000
<INTEREST-LOAN> 7,051,000
<INTEREST-INVEST> 3,895,000
<INTEREST-OTHER> 227,000
<INTEREST-TOTAL> 11,173,000
<INTEREST-DEPOSIT> 1,773,000
<INTEREST-EXPENSE> 4,392,000
<INTEREST-INCOME-NET> 6,781,000
<LOAN-LOSSES> 47,000
<SECURITIES-GAINS> 266,000
<EXPENSE-OTHER> 6,848,000
<INCOME-PRETAX> 825,000
<INCOME-PRE-EXTRAORDINARY> 825,000
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 591,000
<EPS-BASIC> .25
<EPS-DILUTED> .23
<YIELD-ACTUAL> 7.84
<LOANS-NON> 0
<LOANS-PAST> 0
<LOANS-TROUBLED> 0
<LOANS-PROBLEM> 0
<ALLOWANCE-OPEN> 2,678,000
<CHARGE-OFFS> 10,000
<RECOVERIES> 0
<ALLOWANCE-CLOSE> 2,715,000
<ALLOWANCE-DOMESTIC> 2,715,000
<ALLOWANCE-FOREIGN> 0
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</TABLE>
