Proxy Statement Pursuant to Section 14(a) of the Securities Exchange Act of
1934
Filed by the registrant [x]
Filed by a party other than the registrant [ ]
Check the appropriate box:
[x] Preliminary proxy statement
[ ] Definitive proxy statement
[ ] Definitive additional materials
[ ] Soliciting material pursuant to Rule 14a-11(c) or Rule 14a-12
SOUTHERN MISSOURI BANCORP, INC.
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(Name of Registrant as Specified in Its Charter)
SOUTHERN MISSOURI BANCORP, INC.
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(Name of Person(s) Filing Proxy Statement)
Payment of filing fee (Check the appropriate box):
[x] No fee required
[ ] Fee computed on table below per Exchange Act Rules 14a-6(i)(4) and 0-11.
(1) Title of each class of securities to which transaction applies:
N/A
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(2) Aggregate number of securities to which transactions applies:
N/A
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(3) Per unit price or other underlying value of transaction computed pursuant
to Exchange Act Rule 0-11:
N/A
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(4) Proposed maximum aggregate value of transaction:
N/A
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[ ] Check box if any part of the fee is offset as provided by Exchange Act
Rule 0-11 (a)(2) and identify the filing for which the offsetting fee was
paid previously. Identify the previous filing by registration statement
number, or the form or schedule and the date of its filing.
(1) Amount previously paid:
N/A
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(2) Form, schedule or registration statement no.:
N/A
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(3) Filing party:
N/A
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(4) Date filed:
N/A
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September 22, 1998
Dear Stockholder:
You are cordially invited to attend the Annual Meeting of Stockholders of
Southern Missouri Bancorp, Inc. The meeting will be held at the Greater Poplar
Bluff Area Chamber of Commerce Building, 1111 West Pine, Poplar Bluff,
Missouri, on Monday, October 19, 1998, at 9:00 a.m., Central Time.
The attached Notice of the Annual Meeting and Proxy Statement describes
the formal business to be transacted at the meeting. During the meeting, we
will also report on the operations of the Corporation, including its principal
subsidiary, Southern Missouri Bank and Trust Co. Directors and officers of
the Corporation, as well as a representative of Kraft, Miles & Tatum, LLC the
Corporation's independent auditors, will be present to respond to any
appropriate questions stockholders may have.
To ensure proper representation of your shares at the Annual Meeting,
please sign, date and return the enclosed proxy card in the enclosed
postage-prepaid envelope as soon as possible even if you currently plan to
attend the meeting. This will not prevent you from voting in person, but will
assure that your vote is counted if you are unable to attend the meeting.
Sincerely,
Donald R. Crandell
President and Chief Executive Officer
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SOUTHERN MISSOURI BANCORP, INC.
531 VINE STREET
POPLAR BLUFF, MISSOURI 63901
(573) 785-1421
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NOTICE OF ANNUAL MEETING OF STOCKHOLDERS
TO BE HELD ON OCTOBER 22, 1998
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NOTICE IS HEREBY GIVEN that the Annual Meeting of Stockholders
("Meeting") of Southern Missouri Bancorp, Inc. ("Corporation") will be held at
the Greater Poplar Bluff Area Chamber of Commerce Building, 1111 West Pine
Street, Poplar Bluff, Missouri, on Monday, October 19, 1998, at 9:00 a.m.,
Central Time.
A Proxy Card and a Proxy Statement for the Meeting are enclosed.
The Meeting is for the purpose of considering and acting upon:
1. The election of two directors of the Corporation;
2. The approval of a proposal to change the Corporation's state of
incorporation from Delaware to Missouri through a merger of the
Corporation with a newly formed, wholly owned Missouri
subsidiary;
3. The ratification of an amendment to the Corporation's corporate
charter to increase the number of authorized shares of common
stock; and
4. Such other matters as may properly come before the Meeting or
any adjournments thereof.
NOTE: The Board of Directors is not aware of any other business to come
before the Meeting.
Any action may be taken on any one of the foregoing proposals at the
Meeting on the date specified above, or on any date or dates to which, by
original or later adjournment, the Meeting may be adjourned. Pursuant to the
Corporation's Bylaws, the Board of Directors has fixed the close of business
on September 15, 1998 as the record date for the determination of the
stockholders entitled to notice of and to vote at the Meeting and any
adjournments thereof.
You are requested to complete and sign the enclosed form of Proxy which
is solicited by the Board of Directors and to mail it promptly in the enclosed
envelope. The Proxy will not be used if you attend the Meeting and vote in
person.
BY ORDER OF THE BOARD OF DIRECTORS
SAMUEL H. SMITH
SECRETARY
Poplar Bluff, Missouri
September 22, 1998
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IMPORTANT: THE PROMPT RETURN OF PROXIES WILL SAVE THE CORPORATION THE EXPENSE
OF FURTHER REQUESTS FOR PROXIES IN ORDER TO INSURE A QUORUM. A SELF-ADDRESSED
ENVELOPE IS ENCLOSED FOR YOUR CONVENIENCE. NO POSTAGE IS REQUIRED IF MAILED
IN THE UNITED STATES.
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PROXY STATEMENT
OF
SOUTHERN MISSOURI BANCORP, INC.
531 VINE STREET
POPLAR BLUFF, MISSOURI 63901
(573) 785-1421
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ANNUAL MEETING OF STOCKHOLDERS
OCTOBER 19, 1998
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This Proxy Statement is furnished in connection with the solicitation of
proxies by the Board of Directors of Southern Missouri Bancorp, Inc.
("Corporation") to be used at the Annual Meeting of Stockholders of the
Corporation ("Meeting"). The Meeting will be held at the Greater Poplar Bluff
Area Chamber of Commerce Building, 1111 West Pine Street, Poplar Bluff,
Missouri, on Monday, October 19, 1998, at 9:00 a.m., Central Time. The
accompanying Notice of Meeting and this Proxy Statement are being first mailed
to stockholders on or about September 22, 1998. The Corporation is the
holding company for Southern Missouri Bank and Trust Co. ("Southern Missouri"
or the "Bank"), formerly known as Southern Missouri Savings Bank, FSB.
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VOTING AND PROXY INFORMATION
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Shareholders Entitled to Vote. Stockholders of record as of the close of
business on September 15, 1998 ("Voting Record Date") are entitled to one vote
for each share of common stock ("Common Stock") of the Corporation then held.
At the close of the Voting Record Date, the Corporation had 1,411,980 shares
of Common Stock issued and outstanding.
Quorum. The presence, in person or by proxy, of at least a majority of
the total number of outstanding shares of Common Stock entitled to vote is
necessary to constitute a quorum at the Meeting. Abstentions and broker
non-votes will be counted as shares present and entitled to vote at the
Meeting for purposes of determining the existence of a quorum.
Voting. The Board of Directors solicits proxies so that each stockholder
has the opportunity to vote on the proposals to be considered at the Meeting.
When a proxy card is returned properly signed and dated, the shares
represented thereby will be voted in accordance with the instructions on the
proxy card. Where no instructions are indicated, properly signed and dated
proxies will be voted FOR the nominees for directors set forth below, FOR the
approval of the change in the Corporation's state of incorporation from
Delaware to Missouri and FOR the approval of an amendment to the Corporation's
corporate charter to increase the number of authorized shares of common stock.
If a stockholder of record attends the Meeting, he or she may vote by ballot.
If a stockholder is a participant in the Southern Missouri Bank and Trust
Co. Employee Stock Ownership Plan ("ESOP"), the proxy card represents a voting
instruction to the trustees of the ESOP as to the number of shares in the
participant's plan account. Each participant in the ESOP may direct the
trustees as to the manner in which shares of Common Stock allocated to the
participant's plan account are to be voted. Unallocated shares of Common
Stock held by the ESOP and allocated shares for which no voting instructions
are received from participants, will be voted by the trustees in the same
proportion as shares for which the trustees have received voting instructions.
The directors to be elected at the Meeting will be elected by a plurality
of the votes cast by stockholders present in person or by proxy and entitled
to vote. Pursuant to the Corporation's Certificate of Incorporation,
stockholders are not permitted to cumulate their votes for the election of
directors. Votes may be cast for or withheld from each nominee. Votes that
are withheld and broker non-votes will have no effect on the outcome of the
election because directors will be elected by a plurality of the votes cast.
Approval of the change in the Corporation's state of incorporation from
Delaware to Missouri requires the affirmative vote of a majority of the
outstanding shares of the Common Stock entitled
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to vote at the Meeting. Abstentions and broker non-votes on the proposal will
have the same effect as a vote against the proposal to amend the Corporation's
corporate charter. Approval of the amendment to the Corporation's corporate
charter to increase the number of authorized shares of Common Stock will
require the affirmative vote of a majority of the outstanding shares of Common
Stock entitled to vote at the Meeting. Abstentions and broker non-votes on
the proposal will have the same effect as a vote against the proposal to amend
the corporate charter.
If a stockholder does not return a properly signed and dated proxy card
or does not attend the Meeting and vote in person, his or her shares will not
be voted.
Revocation of a Proxy. Stockholders who execute proxies retain the right
to revoke them at any time. Proxies may be revoked by written notice
delivered in person or mailed to the Secretary of the Corporation or by filing
a later dated signed proxy prior to a vote being taken on a particular
proposal at the Meeting. Attendance at the Meeting will not automatically
revoke a proxy, but a stockholder of record in attendance may request a ballot
and vote in person, thereby revoking a prior granted proxy.
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SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
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Persons and groups who beneficially own in excess of 5% of the
Corporation's Common Stock are required to file certain reports with the
Securities and Exchange Commission ("SEC"), and provide a copy to the
Corporation, disclosing such ownership pursuant to the Securities Exchange Act
of 1934, as amended ("Exchange Act"). Based upon such reports, the following
table sets forth, at the close of business on the Voting Record Date, certain
information as to those persons who were beneficial owners of more than 5% of
the outstanding shares of Common Stock. Management knows of no persons other
than those set forth below who beneficially owned more than 5% of the
outstanding shares of Common Stock at the close of business on the Voting
Record Date. The table also sets forth, as of the close of business on the
Voting Record Date, certain information as to the shares of Common Stock
beneficially owned by each director, by the "named executive officers" and all
directors and executive officers of the Corporation as a group.
Number of Shares Percent of Common
Name Beneficially Owned (1) Stock Outstanding
- ---- ---------------------- ------------------
Beneficial Owners of More Than 5%
Southern Missouri Bank and Trust Co.
Employee Stock Ownership Plan Trust 131,065 9.28%
Donald R. Crandell(2)(3) 86,877 6.05
Directors
Samuel H. Smith 44,277 3.11
Leonard W. Ehlers 44,277 3.11
Thadis R. Seifert 58,554 4.15
James W. Tatum 44,277 3.11
Ronnie D. Black 6,250 0.01
L. Douglas Bagby 6,650 0.01
All Officers and Directors as a
Group (eight persons) 315,662 21.13
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(1) In accordance with Rule 13d-3 under the Exchange Act a person is deemed to
be the beneficial owner, for purposes of this table, of any shares of
Common Stock if he or she has voting and/or investment power with respect
to such security. The table includes shares owned by spouses, other
immediate family members in trust, shares held in retirement accounts or
funds for the benefit of the named individuals, and other forms of
ownership, over which shares the persons named in the table may possess
voting and/or investment power. Shares held in accounts under the Bank's
ESOP, as to which the holders have voting power but not investment power,
are also included as follows: Mr. Crandell, 12,537 shares; all executive
officers and directors as a group, 12,537 shares. This table also
includes shares of Common Stock subject to outstanding options exercisable
within 60 days from the close of business on the Voting Record Date,
pursuant to the 1994 Stock Option Plan ("Option Plan") and unvested shares
of restricted Common Stock awarded pursuant to the Bank's Management
Recognition and Development Plans ("MRDPs").
(2) SEC regulations define the term "named executive officers" to include the
chief executive officer during the most recently completed fiscal year,
regardless of compensation level, and the four most highly compensated
executive officers, other than the chief executive officer, whose total
annual salary and bonus for the last completed fiscal year exceeded
$100,000. Donald R. Crandell was the Corporation's only "named executive
officer" for the fiscal year ended June 30, 1998 whose compensation
exceeded $100,000. He is also a director of the Corporation.
(3) As disclosed in a Schedule 13D filed with the SEC.
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REGULATORY CONSIDERATIONS
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As reported in its prior annual meeting proxy statements, on December 21,
1994, the Bank voluntarily entered into a Supervisory Agreement with the
Office of Thrift supervision ("OTS"), its current primary federal regulator.
On February 17, 1998, Southern Missouri Savings Bank, FSB converted from a
federally chartered stock savings bank to a Missouri chartered stock savings
bank and changed its name to Southern Missouri Bank and Trust Co. In
connection with the charter conversion, the Bank's primary regulator changed
from the OTS to the Missouri Division of Finance. As a result of the charter
conversion, the OTS terminated the Supervisory Agreement. However, the Bank
is still subject to increased Savings Association Insurance Fund ("SAIF")
deposit insurance premium assessments due to its former regulatory status
until January 1, 1999, when the Bank will be assessed at the same rates as
other SAIF insured institutions.
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PROPOSAL I - ELECTION OF DIRECTORS
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The Corporation's Board of Directors consists of seven members. The
Board of Directors has increased from five to seven members with the
appointment of Ronnie D. Black and L. Douglas Bagby on December 16, 1997. The
Corporation's Bylaws provide that directors are elected for terms of three
years, one-third of whom are elected annually. Two directors will be elected
at the Meeting to serve for a three year period, or until their respective
successors have been elected and qualified. The Nominating Committee has
nominated for election as directors Leonard W. Ehlers and Thadis R. Seifert.
The nominees are current members of the Boards of Directors of the Corporation
and the Bank. Each director of the Corporation is also a director of the
Bank.
If any nominee is unable to serve, the shares represented by all valid
proxies will be voted for the election of such substitute as the Board of
Directors may recommend. At this time, the Board knows of no reason why any
nominee might be unavailable to serve.
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The following table sets forth certain information regarding the nominees
for election at the Meeting and the directors continuing in office.
Year First
Elected or Term
Principal Occupation Appointed to
Name Age(1) During Last Five Years Director(2) Expire
- ---- ------ ---------------------- ----------- ------
BOARD NOMINEES
Leonard W.
Ehlers 79 Retired. Official Court Reporter of 1961 2001(3)
the 36th Judicial Circuit and owner of
Ehlers Reporting Service for over 39
years. Chairman of the Board of the
Bank since 1994. Vice Chairman of
the Corporation's Board of Directors.
Thadis R.
Seifert 79 Retired. Former Executive Vice 1971 2001(3)
President of Southern Missouri.
DIRECTORS CONTINUING IN OFFICE
James W.
Tatum 72 Retired. Former member and a Partner 1983 1999
of Kraft, Miles & Tatum, LLC, an
accounting firm, for over 40 years.
Vice Chairman of the Board of Directors
of Southern Missouri.
Ronnie D.
Black 49 Stewardship Director of General 1997 1999
Association of General Baptists.
Donald R.
Crandell 64 President and Chief Executive Officer 1985 2000
of the Corporation and Southern
Missouri since 1994. Executive Vice
President and Chief Executive Officer
of Southern Missouri from 1986 to 1994.
Samuel H.
Smith 60 Secretary of the Corporation since 1988 2000
1994. President, Chief Executive
Officer and majority stockholder of
S.H. Smith and Company, Inc., an
engineering consulting firm, in
In Poplar Bluff, Missouri.
L. Douglas
Bagby 49 General Manager of Municipal Utilities 1997 2000
of the City of Poplar Bluff.
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(1) At June 30, 1998.
(2) Includes prior service on the Board of Directors of the Bank.
(3) Assuming re-election at the Meeting.
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MEETINGS AND COMMITTEES OF THE BOARD OF DIRECTORS
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The Boards of Directors of the Corporation and the Bank conduct their
business through meetings of the Boards and through their committees. The
Board of Directors of the Corporation and the Bank meets monthly and has
additional special meetings as needed. During the fiscal year ended June 30,
1998, the Board of Directors of the Corporation held 17 meetings and the Board
of Directors of Southern Missouri held 15 meetings. No director of the
Corporation or Southern Missouri attended fewer than 75% of the total meetings
of the Boards and committee meetings on which such Board member served during
this period.
The Board of Directors of the Bank has standing Executive, Audit,
Personnel and Nominating Committees, among others.
The Board of Directors of the Corporation has an Executive Committee
which consists of Messrs. Crandell, Ehlers and Seifert. The Executive
Committee meets for the purpose of acting as a long range planning committee
of the Corporation and to take any and all actions they deem necessary or
appropriate between regular meetings of the Board. This Committee did not
meet during fiscal 1998.
The Audit Committee consists of outside directors. This Committee meets
for the purpose of reviewing the audit procedures at the Corporation, and the
report and performance of the Corporation's independent auditing firm, and to
take such other actions and responsibilities as shall from time to time be
deemed necessary or appropriate. This Committee met three times during fiscal
1998.
The Personnel Committee consists of Messrs. Seifert (Chairman), Smith and
Bagby. This Committee meets on an as-needed basis to review promotions and to
interview staff at the officer level. This Committee met three times during
fiscal 1998.
The full Board of Directors of the Corporation acts as a Nominating
Committee for the annual selection of management's nominees for election as
directors. The full Board of Directors met once in its capacity as Nominating
Committee during the fiscal year ended June 30, 1998.
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DIRECTORS' COMPENSATION
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Fees
Members of the Board of Directors of the Bank receive a fee of $900 per
month. Additionally, the members of the Board of Directors of SMS Financial
Services, Inc., the Bank's wholly-owned subsidiary, receive a fee of $300 per
month. Members of the Board of Directors of the Corporation receive a fee of
$900 per month. Total fees paid to directors of the Bank, SMS Financial
Services, Inc. and the Corporation during the fiscal year ended June 30, 1998
were $144,400.
Directors' Retirement Agreements
Effective April 13, 1994, the Bank entered into individual retirement
agreements with Messrs. Ehlers, Thadis Siefert, Smith, Tatum and the Estate of
Robert Siefert, a former director, in recognition of their past service to the
Bank and to ensure their continued service on the Board. Each agreement
provides that, following a director's termination of service on the Board on
or after age 60, other than termination for cause, the director will receive
five annual payments equal to the product of the cash fees paid to the
director during the calendar year preceding his retirement and the director's
vested percentage. The vested percentage is determined as follows: 50% after
five years of service, 75% after 10 years of service, and 100% after 15 years
of
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service. The benefits payable under the director's retirement agreements are
an unfunded and unsecured obligation of the Bank that is payable solely out of
the general assets of the Bank.
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EXECUTIVE COMPENSATION
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Summary Compensation Table
The following information is provided for Mr. Crandell.
Annual Compensation (1)
------------------------------------
Name and Other Annual All Other
Position Year Salary(2) Compensation(3) Compensation(4)
- -------- ---- --------- --------------- ---------------
Donald R. Crandell 1998 $128,396 $ -- $47,564
President and Chief
Executive Officer 1997 125,991 -- 27,840
1996 116,391 -- --
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(1) All compensation and benefits are paid by the Bank.
(2) Includes directors' fees of $6,300, $9,600 and $10,200 for the fiscal
years 1996, 1997 and 1998, respectively.
(3) Exclude certain benefits, the aggregate amount of which do not exceed 10%
of total annual salary and bonus.
(4) Consists of contributions made to the ESOP on Mr. Crandell's behalf.
<PAGE>
<TABLE>
Option Exercise/Value Table
The following information is provided for Mr. Crandell for the year ended June 30, 1998.
Number of Value of
Securities Underlying Unexercised
Unexercised Options In-the-Money Options
Shares at Fiscal Year End(#) at Fiscal Year End($)
Acquired on Value --------------------------- ----------------------------
Name Exercise(#) Realized($) Exercisable Unexercisable Exercisable Unexercisable
- ---- ------------ ----------- ----------- ------------- ----------- -------------
<S> <C> <C> <C> <C> <C> <C>
Donald R.
Crandell -- -- 26,781 -- 589,182 --
</TABLE>
<PAGE>
Compensation Committee Interlocks and Insider Participation. No
executive officer of the Corporation or the Bank has served as a member of the
compensation committee of another entity, one of whose executive officers
served on the Personnel Committee. No executive officer of the Corporation or
the Bank has served as a director of another entity, one of whose executive
officers served on the Personnel Committee. No executive officer of the
Corporation or the Bank has served as a member of the compensation committee
of another entity, one of whose executive officers served as a director of the
Corporation or the Bank.
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PROPOSAL II --
REINCORPORATION IN THE STATE OF MISSOURI
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For the reasons set forth below, the Board of Directors believes that the
best interests of the Corporation and its shareholders will be served by
changing the Corporation's state of incorporation from Delaware to Missouri
("Reincorporation"). The Board of Directors has approved the Reincorporation,
which would be accomplished by
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merging the Corporation with and into its newly formed Missouri subsidiary,
SMB Acquisition Bancorp, Inc. ("SMB Acquisition"). In connection with the
consummation of the Reincorporation, SMB Acquisition will change its name to
"Southern Missouri Bancorp, Inc." The shareholders will be asked to approve
the Reincorporation at the Meeting.
The sole factor in the Board of Directors' recommendation to
reincorporate in Missouri was that the Corporation's franchise fees will be
substantially less in Missouri than in Delaware. The Corporation expects to
save approximately $17,000 annually on state franchise tax fees by
reincorporating in Missouri. Furthermore, the Corporation's headquarters are
located in Missouri.
Plan of Merger
The Corporation will be merged with and into SMB Acquisition pursuant to
the terms of the proposed Agreement and Plan of Merger ("Merger Agreement"), a
copy of which is attached as Exhibit A to this Proxy Statement. Upon the
completion of the merger, the owner of each outstanding share of the
Corporation's Common Stock will automatically own one share of SMB Acquisition
common stock. Each outstanding certificate representing a share or shares of
the Corporation's Common Stock will continue to represent the same number of
shares in SMB Acquisition (i.e., a certificate representing one share of the
Corporation's Common Stock will then equal one share of SMB Acquisition common
stock). IT WILL NOT BE NECESSARY FOR SHAREHOLDERS OF THE CORPORATION TO
EXCHANGE THEIR EXISTING STOCK CERTIFICATES. The Corporation's Common Stock
will continue to be traded on the Nasdaq National Market under the symbol
"SMBC" subsequent to the merger.
SMB Acquisition's Articles of Incorporation and Bylaws will be the
Articles of Incorporation and Bylaws of the surviving corporation. SMB
Acquisition's Articles of Incorporation are attached hereto as Exhibit B. The
discussion contained in this Proxy Statement is qualified in its entirety by
reference to Exhibits A and B.
Effect of Reincorporation and Merger
The Reincorporation and the merger will effect a change in the legal
domicile of the Corporation and other changes of a legal nature, the most
significant of which are described in this Proxy Statement. The
Reincorporation and merger will not result in any change in the business,
management, location of the Corporation's principal executive offices, assets,
liabilities, net worth or accounting practices. Moreover, as noted above, the
shares of Common Stock will continue to be publicly traded and reported on the
Nasdaq National Market. The merger will not give rise to any appraisal or
dissenters' rights.
Principal Differences in Corporate Charters
SMB Acquisition's Articles of Incorporation differ from the Corporation's
Certificate of Incorporation in certain technical aspects. Specific articles
have been included so as to minimize differences in corporate governance
before and after the Reincorporation. A majority vote requirement in the case
of mergers is provided for (which is the same as the Delaware General
Corporation Law ("DGCL") requirement for mergers). Although SMB Acquisition's
Articles of Incorporation and the Corporation's Certificate of Incorporation
contain similar language to the effect that a director will not be liable for
monetary damages for conduct as a director to the full extent that each
entity's respective state's law permits, the Missouri General Business and
Corporation Law ("MGBCL") and the DGCL have different director and officer
indemnification and director liability provisions. Various differences also
exist between SMB Acquisition's Bylaws and the Corporation's Bylaws, but none
of these provisions is expected to have a material effect on the Corporation's
governance.
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Certain Differences in Corporate Laws
The DGCL currently governs the rights of the Corporation's shareholders.
After the merger, the rights of shareholders will be governed by the MGBCL.
The following discussion summarizes certain significant differences between
the provisions of the DGCL and the MGBCL, as applicable to a public company.
Amendment of Articles/Certificate of Incorporation. Under the MGBCL, the
board of directors may adopt a resolution setting forth the proposed amendment
and directing that it be submitted to a vote at a meeting of shareholders,
except that the proposed amendment need not be adopted by the board of
directors and may be directly submitted to any annual or special meeting of
shareholders. All amendments to a corporation's articles of incorporation
must be approved by shareholders holding a majority of the voting power of the
corporation. Under the DGCL, all amendments to a corporation's certificate of
incorporation require the approval of shareholders holding a majority of the
voting power of the corporation unless a greater proportion is specified in
the certificate of incorporation.
Provisions Affecting Acquisitions and Business Combinations. The MGBCL
provides for two anti-takeover provisions, in the form of a "Fair Price"
provision and a "Control Share Acquisition" provision. The "fair price"
statute restricts certain business combinations (e.g., mergers and
dispositions of assets of a corporation or any subsidiary having an aggregate
market value of 10% or more of the total market value of the corporation's
outstanding stock) between a corporation and an interested shareholder (e.g.,
a beneficial owner of 20% or more of the voting power of the outstanding
shares of a corporation). The fair price statute generally precludes a
corporation from engaging in any business combination with an interested
shareholder within five years after the acquisition pursuant to which the
shareholder became an interested shareholder, unless either (i) the business
combination or the acquisition pursuant to which the interested shareholder
became interested was approved by the board of directors before the
acquisition, (ii) the business combination is approved by the affirmative vote
of the holders of a majority of the outstanding shares not beneficially owned
by the interested stockholder or his affiliates or associates at a meeting
called for that purpose at least five years after the acquisition pursuant to
which the interest shareholder became interested, or (iii) certain minimum
price criteria are satisfied.
The "control share acquisition" statute precludes any person who acquires
voting shares in a corporation in excess of specified thresholds of voting
power in the corporation (i.e., 20%, 33 1/3%, and over 50%) from voting the
shares held in excess of the applicable threshold, except to the extent voting
rights for such shares are granted by resolution approved by the corporation's
shareholders. The resolution must be approved by (i) each voting group
entitled to vote separately, (ii) a majority of all votes entitled to be cast
by that group, and (iii) a majority of all votes entitled to be cast by that
group excluding all interested shares. Interested shares include those over
which the acquiring person, any officer of the corporation, and any employee
of the corporation who is also a director may exercise or direct the power to
vote.
SMB Acquisition's Articles of Incorporation provide that in no event
shall any record owner of any outstanding common stock which is beneficially
owned, directly or indirectly, by a person who beneficially owns in excess of
10% of the then outstanding shares of common stock (the "Limit") be entitled
or permitted to any vote in respect of the shares held in excess of the Limit.
Beneficial ownership is determined pursuant to Rule 13d-3 of the General Rules
and Regulations of the Exchange Act. Additionally, the Articles of
Incorporation require the approval of the holders of at least 80% of SMB
Acquisition's outstanding shares of voting stock to approve certain "Business
Combinations," as defined therein, and related transactions.
Delaware has enacted a business combination statute that is contained in
Section 203 of the DGCL providing that any person who acquires 15% or more of
a corporation's voting stock (thereby becoming an "interested shareholder")
may not engage in certain "business combinations" with the target corporation
for a period of three years following the time the person became an interested
shareholder, unless (i) the board of directors of the corporation has
approved, prior to that acquisition time, either the business combination or
the transaction that resulted in the person becoming an
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interested shareholder, (ii) upon consummation of the transaction that
resulted in the person becoming an interested shareholder, that person owns at
least 85% of the corporation's voting stock outstanding at the time the
transaction is commenced (excluding shares owned by persons who are both
directors and officers and shares owned by employee stock plans in which
participants do not have the right to determine confidentially whether shares
will be tendered in a tender or exchange offer), or (iii) the business
combination is approved by the board of directors and authorized by the
affirmative vote (at an annual or special meeting and not by written consent)
of at least 66% of the outstanding voting stock not owned by the interested
shareholder.
For purposes of determining whether a person is the "owner" of 15% or
more of a corporation's voting stock for purposes of Section 203, ownership is
defined broadly to include the right, directly or indirectly, to acquire the
stock or to control the voting or disposition of the stock. A business
combination is also defined broadly to include (i) mergers and sales or other
dispositions of 10% or more of the assets of a corporation with or to an
interested shareholder, (ii) certain transactions resulting in the issuance or
transfer to the interested shareholder of any stock of the corporation or its
subsidiaries, (iii) certain transactions which would result in increasing the
proportionate share of the stock of a corporation or its subsidiaries owned by
the interested shareholder, and (iv) receipt by the interested shareholder of
the benefit (except proportionately as a shareholder) of any loans, advances,
guarantees, pledges or other financial benefits.
These restrictions placed on interested shareholders by Section 203 do
not apply under certain circumstances, including, but not limited to, the
following: (i) if the corporation's original certificate of incorporation
contains a provision expressly electing not to be governed by Section 203 or
(ii) if the corporation, by action of its shareholders, adopts an amendment to
its bylaws or certificate of incorporation expressly electing not to be
governed by Section 203, provided that such an amendment is approved by the
affirmative vote of not less than a majority of the outstanding shares
entitled to vote and that such an amendment will not be effective until 12
months after its adoption (except for limited circumstances where
effectiveness will occur immediately) and will not apply to any business
combination with a person who became an interested shareholder at or prior to
such adoption.
Mergers, Acquisitions and Other Transactions. Under the MGBCL, a merger,
consolidation, sale of all or substantially all of a corporation's assets
other than in the regular course of business, or dissolution of a public
corporation must be approved by the affirmative vote of a majority of
directors when a quorum is present, and by two-thirds of all votes entitled to
be cast by each voting group entitled to vote as a separate group, unless
another proportion is specified in the articles of incorporation. Under the
DGCL, a merger, consolidation, sale of all or substantially all of a
corporation's assets other than in the regular course of business or
dissolution of a corporation must be approved by a majority of the outstanding
shares entitled to vote.
Action Without a Meeting. Under the MGBCL, shareholder action may be
taken without a meeting if written consents setting forth such action are
signed by all holders of outstanding shares entitled to vote thereon. The
DGCL authorizes shareholder action without a meeting if consents are received
from holders of a majority of the outstanding shares. The Corporation's
Certificate of Incorporation, however, provides that shareholders may not take
any action without a meeting. Although SMB Acquisition's Articles of
Incorporation and Bylaws do not restrict the ability of shareholders to act by
written consent, because such a consent must be signed by all holders of
outstanding shares entitled to vote on the action, it is highly unlikely that
any shareholder action would be taken by written consent.
Class Voting. Under the MGBCL, the articles of incorporation may
authorize one or more classes of shares that have special, conditional or
limited voting rights, including the right to vote on certain matters as a
group. The articles of incorporation may not limit the rights of holders of a
class to vote as a group with respect to certain amendments to the articles of
incorporation and certain mergers that adversely affect the rights of holders
of that class. The DGCL requires voting by separate classes only with respect
to amendments to the certificate of incorporation that adversely affect the
holders of those classes or that increase or decrease the aggregate number of
authorized shares or the par value of the shares of any of those classes.
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Transactions With Officers or Directors. The MGBCL sets forth a safe
harbor for transactions between a corporation and one or more of its
directors. A conflicting interest transaction may not be void or voidable
solely because a director has a financial interest in the transaction if: (i)
the material facts of the director's relationship or interest and as to the
contract or transaction are disclosed or are known to the board of directors
or a committee of the board of directors and such contract or transaction is
approved by the affirmative vote of a majority of disinterested directors;
(ii) the material facts of the director's relationship or interest and as to
the contract or transaction are disclosed and such contract or transaction is
approved in good faith by vote of the shareholders; or (iii) at the time of
authorization or approval, the transaction was fair to the corporation.
Additionally, the MGBCL provides that interested directors may be counted in
determining the presence of a quorum at a meeting of the board of directors or
a committee which authorizes the transaction.
The DGCL provides that contracts or transactions between a corporation
and one or more of its officers or directors or an entity in which they have
an interest is not void or voidable solely because of such interest or the
participation of the director or officer in a meeting of the board or a
committee which authorizes the contract or transaction if: (i) the material
facts as to the relationship or interest and as to the contract or transaction
are disclosed or are known to the board or the committee, and the board or the
committee in good faith authorizes the contract or transaction by the
affirmative vote of a majority of disinterested directors; (ii) the material
facts as to the relationship or interest and as to the contract or transaction
are disclosed or are known to the shareholders entitled to vote thereon, and
the contract or transaction is specifically approved in good faith by a vote
of the shareholders; or (iii) the contract or transaction is fair as to the
corporation as of the time it is authorized, approved or ratified by the board
of directors, a committee thereof, or the shareholders.
Appraisal or Dissenters' Rights. Under the MGBCL a shareholder is
entitled to dissent from and, upon perfection of his or her appraisal right,
to obtain fair value of his or her shares in the event of certain corporate
actions, including certain mergers, consolidations, share exchanges, sales of
substantially all assets of the corporation, and amendments to the
corporation's articles of incorporation that materially and adversely affect
shareholder rights.
Under the DGCL, appraisal rights are available only in connection with
certain mergers or consolidations, unless otherwise provided in the
corporation's certificate of incorporation. Even in the event of those
mergers or consolidations, unless the certificate of incorporation otherwise
provides, the DGCL does not provide appraisal rights (i) if the shares of the
corporation are listed on a national securities exchange, designated as a
national market system security on an inter dealer quotation system by the
National Association of Securities Dealers, Inc. or held of record by more
than 2,000 shareholders (as long as in the merger the shareholders receive
shares of the surviving corporation or any other corporation the shares of
which are listed on a national securities exchange or held of record by more
than 2,000 shareholders) or (ii) if the corporation is the surviving
corporation and no vote of its shareholders is required for the merger.
Because the Corporation is listed on the Nasdaq National Market, shareholders
currently would not have statutory appraisal rights under the DGCL in such
mergers.
Indemnification of Directors and Officers. Under the MGBCL, a
corporation may indemnify any person who was or is a party or is threatened to
be made a party any threatened, pending or completed action, suit, or
proceeding, whether civil, criminal, administrative or investigative, against
expenses, including attorneys' fees, judgments, fine and amounts paid in
settlement incurred by him in connection with such action, suit or proceeding
if he acted in good faith and in a manner not opposed to the best interests of
the corporation, and with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. No indemnification may
be given under the MGBCL if the person is judged liable for negligence or
misconduct in the performance of his or her duty to the corporation unless the
court determines the person is fairly and reasonably entitled to indemnity.
SMB Acquisition's Articles of Incorporation provide that SMB Acquisition shall
indemnify its directors and officers to the fullest extent not prohibited by
law, including indemnification for payments in settlement of actions brought
against a director or officer in the name of the corporation, commonly
referred to as a derivative action.
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Under the DGCL, indemnification of directors and officers is authorized
to cover judgments, amounts paid in settlement, and expenses arising out of
non-derivative actions where the director or officer acted in good faith and
in or not opposed to the best interests of the corporation. Indemnification
is required to the extent of a director's or officer's successful defense.
Additionally, under the DGCL, a corporation may reimburse directors and
officers for expenses incurred in a derivative action.
The Corporation has included undertakings in various registration
statements filed with the Securities and Exchange Commission that in the event
a claim for indemnification is asserted by a director or officer relating to
liabilities under the Securities Act of 1933, as amended, the Corporation
will, unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question of whether indemnification would be against public policy and will be
governed by any final adjudication of such issue.
Filing Fees. Delaware imposes annual franchise tax fees on all
corporations incorporated in Delaware. The annual fee ranges from a nominal
fee to a maximum of $150,000, based on an equation consisting of the number of
shares authorized, the number of shares outstanding and the net assets of the
corporation. The Corporation is subject to an annual fee of approximately
$18,000. Missouri charges corporations incorporated in Missouri nominal
annual corporate license renewal fees, and does not impose any franchise tax
fee.
Federal Income Tax Consequences
In connection with the Reincorporation, Breyer & Aguggia LLP, counsel to
the Corporation, will issue an opinion to the effect that, for federal income
tax purposes:
1. The merger of the Corporation with and into SMB Acquisition will qualify
as a reorganization under section 368(a)(1) of the Internal Revenue Code
of 1986, as amended;
2. The Corporation will recognize no gain or loss as a result of the merger;
3. A shareholder of the Corporation will recognize no gain or loss upon the
deemed exchange of shares of Company Common Stock for shares of SMB
Acquisition common stock;
4. The aggregate basis of the shares of SMB Acquisition common stock deemed
received by a shareholder as a result of the merger will equal the
aggregate basis of the shares of Company Common Stock deemed exchanged
therefor; and
5. The holding period of the shares of SMB Acquisition common stock deemed
received by a shareholder in the merger will include the holding period
of the hares of Company Common Stock deemed exchanged therefor, provided
that such Company Common Stock is held as a capital asset by the
shareholder at the Effective Time.
The opinion of Breyer & Aguggia LLP is subject to certain assumptions and
qualifications and will be based upon the accuracy of certain representations
contained in the officers' certificates delivered to Breyer & Aguggia LLP by
the parties to the Reincorporation in connection with the delivery of the tax
opinion by Breyer & Aguggia LLP. No ruling from the IRS will be applied for
with respect to the federal income tax consequences of the Reincorporation.
Thus, there can be no assurance that the IRS will agree with the conclusions
set forth herein regarding the federal income tax consequences of the
Reincorporation.
The federal income tax discussion set forth above is based upon current
law. Although this discussion is intended to cover the material federal
income tax consequences of the Reincorporation, it may not address issues that
are material to a shareholder because of his or her particular tax situation.
It does not address foreign, state or local tax consequences. Shareholders
may wish to consult with a tax advisor concerning the specific tax
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<PAGE>
consequences of the Reincorporation, including the applicability and effect of
federal, state, local and other tax laws.
Vote Required And Board Recommendation
The affirmative vote of a majority of the outstanding shares of Common
Stock of the Corporation is required to approve the Reincorporation.
The Board of Directors believes that the Reincorporation of the
Corporation from Delaware to Missouri is in the best interests of the
Corporation and its shareholders and, consequently, recommends a vote "FOR"
approval of the Reincorporation.
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PROPOSAL III -- APPROVAL OF
AMENDMENT TO THE CORPORATION'S CORPORATE CHARTER
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The Board has unanimously approved and proposed for stockholder approval
an amendment to the Corporation's corporate charter to increase the
Corporation's authorized shares of Common Stock from 3,000,000 to 4,000,000
shares. If the Reincorporation proposal is approved by stockholders, this
proposal will be submitted to stockholders for approval of an amendment to SMB
Acquisition's Articles of Incorporation. In the event stockholders do not
approve the Reincorporation proposal, this proposal will be submitted to
stockholders for approval of an amendment to the Corporation's Certificate of
Incorporation, as amended.
The Corporation's Certificate of Incorporation currently authorizes the
issuance of 3,000,000 shares of Common Stock and 500,000 shares of preferred
stock. As of the close of business on the Voting Record Date, 1,411,980
shares of Common Stock were issued and outstanding and 154,014 shares of the
Common Stock were reserved for issuance under the Corporation's stock benefit
plans. If the proposed change in authorized capital is approved by
stockholders, the Corporation will have 2,196,799 shares of unissued and
unreserved shares of Common Stock available for issuance in the future in
addition to 310,813 shares held in treasury.
The Board of Directors believes that this proposed amendment is in the
best interests of the Corporation and its stockholders. The proposed increase
in the number of authorized shares would give the Board the necessary
flexibility to issue Common Stock in connection with stock dividends and
splits, acquisitions, financing and employee benefits and for general
corporate purposes without the expense and delay incidental to obtaining
stockholder approval of an amendment to the Corporation's Certificate of
Incorporation's increasing the number of authorized shares at the time of such
action, except as may be required for a particular issuance by applicable law
or by the rules of any stock exchange on which the Corporation's securities
may then be listed. The Corporation has no current plans or understandings
regarding any such actions.
The proposed increase in the number of authorized shares of Common Stock
may enable the Board of Directors to render more difficult or discourage an
attempt by another person or entity to obtain control of the Corporation.
Although the Board of Directors has no present intention of issuing additional
shares for such purposes, such additional shares could be issued by the Board
in a public or private sale, merger or similar transaction, increasing the
number of outstanding shares and thereby diluting the equity interest and
voting power of a party attempting to obtain control of the Corporation. The
amendment is not being proposed in response to any known effort to acquire
control of the Corporation.
If the Reincorporation proposal is approved by stockholders, and the
amendment of SMB Acquisition's Articles of Incorporation is approved, Section
3.1(a) of Article III of the Articles of Incorporation would read as follows:
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(a) Four million (4,000,000) shall be voting common stock with a par
value of $.01 per share ("Common Stock"); and"
The remaining text of Article III of SMB Acquisition's Articles of
Incorporation would remain unchanged.
If the Reincorporation proposal is not approved by stockholders, and the
amendment of the Corporation's Certificate of Incorporation is approved, the
first sentence of the first paragraph of Article VII, Capital Stock, of the
Corporation's Certificate of Incorporation would read as follows:
"The aggregate number of shares of all classes of capital stock
which the Corporation has authority to issue is 4,500,000, of which
4,000,000 are to be shares of common stock, $.01 par value per
share, and of which 500,000 are to be shares of serial preferred
stock, $.01 par value per share."
The remaining text of Article VII of the Corporation's Certificate of
Incorporation would remain unchanged.
The amendment to the Corporation's corporate charter to increase the
number of authorized shares of Common Stock requires the affirmative vote of a
majority of the outstanding shares of Common Stock entitled to vote at the
Meeting. THE BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS A VOTE "FOR" THE
APPROVAL OF THE AMENDMENT TO THE CORPORATION'S CORPORATE CHARTER.
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TRANSACTIONS WITH MANAGEMENT
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The Bank, like many financial institutions, has followed the policy of
granting loans to its officers, directors and employees on the security of
their primary residences and also makes consumer loans to such persons. The
Bank has never granted loans to directors and executive officers on preferred
terms. In accordance with the requirements of applicable law, loans to
executive officers and directors of the Bank are made on substantially the
same terms, including interest rates, fees and collateral, as those prevailing
at the time for comparable transactions with other persons, and in the opinion
of management do not involve more than the normal risk of collectability or
present other unfavorable features. At June 30, 1998, loans to directors and
executive officers totaled $458,000.
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COMPLIANCE WITH SECTION 16(a) OF THE EXCHANGE ACT
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Section 16(a) of the Exchange Act requires certain officers of the
Corporation and its directors, and persons who beneficially own more than 10%
of the shares of the Corporation's Common Stock, to file reports of beneficial
ownership and changes in beneficial ownership with the SEC and the
Corporation.
Based solely on a review of the reports and written representations
provided to the Corporation by the above referenced persons, the Corporation
believes that all filing requirements applicable to its reporting officers,
directors and greater than 10% beneficial owners were properly and timely
complied with during the fiscal year ended June 30, 1998, except for certain
transactions by Ronnie D. Black and L. Douglas Bagby, Directors of the
Corporation and the Bank. Messrs. Black and Bagby, new directors of the
Corporation and the Bank as of December 16, 1997, inadvertently failed to file
their respective initial statement of beneficial ownership on Form 3 to
indicate their status as reporting persons. Messrs. Black and Bagby
subsequently reported their respective filing status on March 9, 1998.
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AUDITORS
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The Board of Directors has renewed the Corporation's arrangements with
Kraft, Miles & Tatum, LLC, independent public accountants, to be its auditors
for the 1999 fiscal year. A representative of Kraft, Miles & Tatum, LLC is
expected to be present at the Meeting to respond to appropriate questions of
stockholders, and will have the opportunity to make a statement if he so
desires.
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OTHER MATTERS
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The Board of Directors of the Corporation is not aware of any business to
come before the Meeting other than those matters described above in this Proxy
Statement. However, if any other matters should properly come before the
Meeting, it is intended that proxies in the accompanying form will be voted in
respect thereof in accordance with the judgment of the person or persons
voting the proxies.
The cost of solicitation of proxies will be borne by the Corporation. In
addition to solicitations by mail, directors, officers and regular employees
of the Corporation may solicit proxies personally or by telecopier or
telephone without additional compensation.
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FINANCIAL STATEMENTS
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The Corporation's Annual Report to Stockholders, including financial
statements, has been mailed to all stockholders of record as of the close of
business of the Voting Record Date. Any stockholder who has not received a
copy of such Annual Report may obtain a copy by writing to the Secretary of
the Corporation. The Annual Report is not to be treated as part of the proxy
solicitation material or as having been incorporated herein by reference.
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STOCKHOLDER PROPOSALS
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In order to be eligible for inclusion in the Corporation's proxy
materials for next year's Annual Meeting of Stockholders, any stockholder
proposal to take action at such meeting must be received at the Corporation's
main office at 531 Vine Street, Poplar Bluff, Missouri, no later than July 15,
1999. Any such proposals shall be subject to the requirements of the proxy
rules adopted under the Exchange Act.
Article II, Section 14 of the Corporation's Bylaws provides that the
Board of Directors of the Corporation shall act as a nominating committee for
selecting the management nominees for election as directors. Such section of
the Bylaws also provides as follows: "... no nominations for directors except
those made by the nominating committee shall be voted upon at the annual
meeting unless other nominations by stockholders are made in writing and
delivered to the secretary of the Corporation in accordance with the
provisions of the Corporation's Certificate of Incorporation." Article II,
Section 15 further provides that any new business to be taken up at the annual
meeting shall be stated in writing and filed with the secretary of the
Corporation in accordance with the provisions of the Corporation's Certificate
of Incorporation. Article XI of the Certificate of Incorporation provides
that written notice of a stockholder's intent to make a nomination or present
new business at the meeting ("stockholder notice") must be given not less than
30 days nor more than 60 days prior to any such meeting; provided, however,
that if less than 31 days' notice of the meeting is given to stockholders by
the Corporation, a stockholder notice shall be delivered or mailed, as
prescribed, to the Secretary of the Corporation not later than the close of
the tenth day following the day on which notice of the meeting was mailed to
stockholders. Based on the date of the Meeting, in order for a stockholder to
make timely notice of a nomination or proposal for the Corporation's annual
meeting next year, it is anticipated that such notice must be
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received by the Secretary of the Corporation by September 19, 1999. If
properly made, such nominations shall be considered by stockholders at such
meeting.
BY ORDER OF THE BOARD OF DIRECTORS
SAMUEL H. SMITH
SECRETARY
Poplar Bluff, Missouri
September 22, 1998
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FORM 10-KSB
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A COPY OF THE FORM 10-KSB AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
WILL BE FURNISHED WITHOUT CHARGE TO STOCKHOLDERS AS OF THE RECORD DATE UPON
WRITTEN REQUEST TO SAMUEL H. SMITH, SECRETARY, SOUTHERN MISSOURI BANCORP,
INC., 531 VINE STREET, POPLAR BLUFF, MISSOURI 63901.
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EXHIBIT A
AGREEMENT AND PLAN OF MERGER
BETWEEN
SMB ACQUISITION BANCORP, INC.
AND
SOUTHERN MISSOURI BANCORP, INC.
This Agreement and Plan of Merger (this "Agreement") is entered into this
____ day of ____________ 1998, by and between SMB Acquisition Bancorp, Inc., a
Missouri corporation (the "Surviving Corporation"), and Southern Missouri
Bancorp, Inc., a Delaware corporation ("Southern Missouri"). The Surviving
Corporation and Southern Missouri are sometimes referred to jointly as the
"Constituent Corporations."
RECITALS
A. Each of the Constituent Corporations is a corporation organized and
existing under the laws of its respective state as indicated in the first
paragraph of this Agreement.
B. The shareholders and directors of each of the Constituent
Corporations have deemed it advisable for the mutual benefit of the
Constituent Corporations and their respective shareholders that Southern
Missouri be merged into the Surviving Corporation pursuant to the provisions
of the Missouri General and Business Corporation Law and the Delaware General
Corporation Law (the "Merger").
AGREEMENT
NOW, THEREFORE, in accordance with the laws of the states of Missouri and
Delaware, the Constituent Corporations agree that, subject to the following
terms and conditions, (i) Southern Missouri shall be merged into the Surviving
Corporation, (ii) the Surviving Corporation shall continue to be governed by
the laws of the State of Missouri, and (iii) the terms of the Merger, and the
mode of carrying them into effect, shall be as follows:
1. ARTICLES OF SURVIVING CORPORATION; NAME OF SURVIVING CORPORATION
The Articles of Incorporation of the Surviving Corporation as in effect
prior to the Effective Time of the Merger shall constitute the"Articles" of
the Surviving Corporation within the meaning of Section 351.450 of the
Missouri General and Business Corporation Law and Section 104 of the Delaware
General Corporation Law. The name of the Surviving Corporation shall be
"Southern Missouri Bancorp, Inc."
2. APPOINTMENT OF AGENT FOR SERVICE OF PROCESS
Pursuant to Section 252(d) of the Delaware General Corporation Law, the
Surviving Corporation irrevocably appoints the Delaware Secretary of State to
accept service of process in any proceeding to enforce against the Surviving
Corporation any obligation of any Constituent Corporation as well as for
enforcement of any obligation of the Surviving Corporation arising from the
Merger. The Delaware Secretary of State shall mail a copy of such process to
Southern Missouri Bancorp, Inc., 531 Vine Street, Poplar Bluff, Missouri
63901.
3. CONVERSION OF SHARES
3.1. SOUTHERN MISSOURI SHARES. At the Effective Time of the Merger
each outstanding share of the common stock of Southern Missouri shall
automatically convert to one share of common stock of SMB Acquisition Bancorp,
Inc. It will not be necessary for stockholders of Southern Missouri to
exchange their existing stock certificates for stock certificates of the
Surviving Corporation.
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3.2. SURVIVING CORPORATION SHARES. At the Effective Time of the
Merger each outstanding share of the common stock of the Surviving Corporation
shall be automatically canceled and returned to the status of authorized but
unissued shares.
4. BYLAWS
The Bylaws of the Surviving Corporation shall be the governing Bylaws.
5. DIRECTORS AND OFFICERS
The directors and officers of Southern Missouri shall be the directors
and officers of the Surviving Corporation.
6. EFFECT OF THE MERGER
The effect of the Merger shall be as provided by the applicable
provisions of the laws of Missouri and Delaware. Without limiting the
generality of the foregoing, and subject thereto, at the Effective Time of the
Merger: the separate existence of Southern Missouri shall cease; the Surviving
Corporation 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 a private
nature, of each of the Constituent Corporations; all obligations belonging to
or due either of the Constituent Corporations shall be vested in, and become
the obligations of, the Surviving Corporation without further act or deed;
title to any real estate or any interest therein shall not revert or in any
way be impaired by reason of the Merger; all rights of creditors and all liens
upon any property of either of the Constituent Corporations shall be preserved
unimpaired; and the Surviving Corporation shall be liable for all the
obligations of the Constituent Corporations and any claim existing, or action
or proceeding pending, by or against either of the Constituent Corporations
may be prosecuted to judgment with right of appeal, as if the Merger had not
taken place. If at any time after the Effective Time of the Merger the
Surviving Corporation shall consider it to be advisable that any further
conveyances, agreements, documents, instruments and assurances of law or any
other things are necessary or desirable to vest, perfect, confirm or record in
the Surviving Corporation the title to any property, rights, privileges,
powers and franchises of the Constituent Corporations or otherwise to carry
out the provisions of this Agreement, the proper directors and officers of the
Constituent Corporation last in office shall execute and deliver, upon the
Surviving Corporation's request, 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 title to such property, rights, privileges, powers and franchises
in the Surviving Corporation, and otherwise to carry out the provisions of
this Agreement.
7. EFFECTIVE TIME OF THE MERGER
As used in this Agreement, the "Effective Time of the Merger" shall mean
the time at which executed counterparts of this Agreement or conformed copies
thereof, together with duly executed Certificates or Articles of Merger have
been duly filed by the Constituent Corporations in the office of the Missouri
Secretary of State pursuant to Section 351.435 of the Missouri General and
Business Corporation Law and the Office of the Delaware Secretary of State
pursuant to Section 252 of the Delaware General Corporation Law or at such
time thereafter as is provided in such Certificates or Articles of Merger.
8. TERMINATION
This Agreement may be terminated and the Merger abandoned by mutual
consent of the directors of the Constituent Corporations at any time prior to
the Effective Time of the Merger.
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9. NO THIRD-PARTY BENEFICIARIES
Except as otherwise specifically provided herein, nothing expressed or
implied in this Agreement is intended, or shall be construed, to confer upon
or give any person, firm or corporation, other than the Constituent
Corporations and their respective shareholders, any rights or remedies under
or by reason of this Agreement.
* * *
A-3
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Plan and
Agreement of Merger to be executed as of the date first above written.
SMB ACQUISITION BANCORP, INC.
By:
-------------------------------------
Donald R. Crandell, President
ATTEST:
-----------------------------
Samuel H. Smith, Secretary
SOUTHERN MISSOURI BANCORP, INC.
By:
-------------------------------------
Donald R. Crandell, President
ATTEST:
-----------------------------
Samuel H. Smith, Secretary
A-4
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EXHIBIT B
ARTICLES OF INCORPORATION
OF
SMB ACQUISITION BANCORP, INC.
ARTICLE I - CORPORATE TITLE
1.1 The name of the Corporation is SMB Acquisition Bancorp, Inc.
ARTICLE II - REGISTERED OFFICE AND AGENT
2.1 The address, including street and number, of the Corporation's
initial registered office in this State is: 531 Vine Street, Popular Bluff,
Missouri 63901, and the name of its initial registered agent at such address
is: Donald R. Crandell.
ARTICLE III - CAPITAL STOCK
3.1 The Corporation shall have authority to issue the following shares:
(a) Three million (3,000,000) shares shall be voting Common Stock
with a par value of $.01 per share ("Common Stock"); and
(b) Five hundred thousand (500,000) shares shall be Preferred Stock
with a par value of $.01 per share ("Preferred Stock").
(i) The Board of Directors, by adoption of an authorizing
resolution, may cause Preferred Stock to be issued from time to time in one or
more series.
(ii) The Board of Directors, by adoption of an authorizing
resolution, may with regard to the shares of any series of Preferred Stock:
(A) Fix the distinctive serial designation of the shares;
(B) Fix the dividend rate, if any;
(C) Fix the date from which dividends on shares issued
before the date for payment of the first dividend shall be cumulative, if any;
(D) Fix the redemption price and terms of redemption, if
any;
(E) Fix the amounts payable per share in the event of
dissolution or liquidation of the Corporation, if any;
(F) Fix the terms and amounts of any sinking fund to be
used for the purchase or redemption of shares, if any;
(G) Fix the terms and conditions, if any, under which the
shares may be converted into, or exchanged for, shares of any other class or
series;
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(H) Provide whether such shares shall have voting powers,
full or limited, or no voting powers, and the rights, if any, of such shares
to vote as a class on some or all matters on which such shares may be entitled
to vote; and
(I) Fix such other designations, preferences, and
relative, participating, optional or other special rights, qualifications,
limitations or restrictions not required by law.
3.2 (a) Notwithstanding any other provision of these Articles of
Incorporation, in no event shall any record owner of any outstanding Common
Stock which is beneficially owned, directly or indirectly, by a person who, as
of any record date for the determination of stockholders entitled to vote on
any matter, beneficially owns in excess of 10% of the then-outstanding shares
of Common Stock (the "Limit"), be entitled, or permitted to any vote in
respect of the shares held in excess of the Limit, unless a majority of the
Whole Board (as defined in Article X) shall have by resolution granted in
advance such entitlement or permission. The number of votes which may be cast
by any record owner by virtue of the provisions hereof in respect of Common
Stock beneficially owned by such person owning shares in excess of the Limit
shall be a number equal to the total number of votes which a single record
owner of all Common Stock owned by such person would be entitled to cast,
multiplied by a fraction, the numerator of which is the number of shares of
such class or series which are both beneficially owned by such person and
owned of record by such record owner and the denominator of which is the total
number of shares of Common Stock beneficially owned by such person owning
shares in excess of the Limit.
(b) The following definitions shall apply to this Section 3.2 of
this Article III.
(i) "Affiliate" shall have the meaning ascribed to it in Rule
12b-2 of the General Rules and Regulations under the Securities Exchange Act
of 1934, as in effect on the date of filing of these Articles of
Incorporation.
(ii) "Beneficial ownership" shall be determined pursuant to
Rule 13d-3 of the General Rules and Regulations under the Securities Exchange
Act of 1934 (or any successor rule or statutory provision), or, if said Rule
13d-3 shall be rescinded and there shall be no successor rule or provision
thereto, pursuant to said Rule 13d-3 as in effect on the date of filing of
these Articles of Incorporation; provided, however, that a person shall, in
any event, also be deemed the "beneficial owner" of any Common Stock:
(A) which such person or any of its affiliates
beneficially owns, directly or indirectly; or
(B) which such person or any of its affiliates has (i)
the right to acquire (whether such right is exercisable immediately or only
after the passage of time), pursuant to any agreement, arrangement or
understanding (but shall not be deemed to be the beneficial owner of any
voting shares solely by reason of an agreement, contract, or other arrangement
with this Corporation to effect any transaction which is described in any one
or more of clauses (i) through (v) of Section 10.1 of Article X or upon the
exercise of conversion rights, exchange rights, warrants, or options or
otherwise, or (ii) sole or shared voting or investment power with respect
thereto pursuant to any agreement, arrangement, understanding, relationship or
otherwise (but shall not be deemed to be the beneficial owner of any voting
shares solely by reason of a revocable proxy granted for a particular meeting
of stockholders, pursuant to a public solicitation of proxies for such
meeting, with respect to shares of which neither such person nor any such
affiliate is otherwise deemed the beneficial owner); or
(C) which are beneficially owned, directly or indirectly,
by any other person with which such first mentioned person or any of its
affiliates acts as a partnership, limited partnership, syndicate or other
group pursuant to any agreement, arrangement or understanding for the purpose
of acquiring, holding, voting or disposing of any shares of capital stock of
this Corporation; and provided further, however, that (i) no Director or
Officer of this Corporation (or any affiliate of any such Director or Officer)
shall, solely by reason of any or all of such Directors of Officers acting in
their capacities as such, be deemed, for any purposes hereof, to beneficially
own any
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Common Stock beneficially owned by any other such Director or Officer (or any
affiliate thereof), and (ii) neither any employee stock ownership or similar
plan of this Corporation or any subsidiary of this Corporation, nor any
trustee with respect thereto or any affiliate of such trustee (solely by
reason of such capacity of such trustee), shall be deemed, for any purposes
hereof, to beneficially own any Common Stock held under any such plan. For
purposes of computing the percentage beneficial ownership of Common Stock of a
person, the outstanding Common Stock shall include shares deemed owned by such
person through application of this subsection but shall not include any other
Common Stock which may be issuable by this Corporation pursuant to any
agreement, or upon exercise of conversion rights, warrants or options, or
otherwise. For all other purposes, the outstanding Common Stock shall include
only Common Stock then outstanding and shall not include any Common Stock
which may be issuable by this Corporation pursuant to any agreement, or upon
the exercise of conversion rights, warrants or options, or otherwise.
(iii) A "person" shall mean any individual, firm, corporation,
or other entity.
(c) The Board of Directors shall have the power to construe and
apply the provisions of this Section and to make all determinations necessary
or desirable to implement such provisions, including but not limited to
matters with respect to (i) the number of shares of Common Stock beneficially
owned by any person, (ii) whether a person is an affiliate of another, (iii)
whether a person has an agreement, arrangement, or understanding with another
as to the matters referred to in the definition of beneficial ownership, (iv)
the application of any other definition or operative provision of the Section
to the given facts, or (v) any other matter relating to the applicability or
effect of this Section.
(d) The Board of Directors shall have the right to demand that any
person who is reasonably believed to beneficially own Common Stock in excess
of the Limit (or holds of record Common Stock beneficially owned by any person
in excess of the Limit) supply the Corporation with complete information as to
(i) the record owner(s) of all shares beneficially owned by such person who is
reasonably believed to own shares in excess of the Limit, and (ii) any other
factual matter relating to the applicability or effect of this section as may
reasonably be required of such person.
(e) Except as otherwise provided by law or expressly provided in
this Section 3.2, the presence, in person or by proxy, of the holders of
record of shares of capital stock of the Corporation entitling the holders
thereof to cast a majority of the votes (after giving effect, if required, to
the provisions of this Section 3.2) entitled to be cast by the holders of
shares of capital stock of the Corporation entitled to vote shall constitute a
quorum at all meetings of the stockholders, and every reference in these
Articles of Incorporation to a majority or other proportion of capital stock
(or the holders thereof) for purposes of determining any quorum requirement or
any requirement for stockholder consent or approval shall be deemed to refer
to such majority or other proportion of the votes (or the holders thereof)
then entitled to be cast in respect of such capital stock.
(f) Any constructions, applications, or determinations made by the
Board of Directors pursuant to this Section in good faith and on the basis of
such information and assistance as was then reasonably available for such
purpose shall be conclusive and binding upon the Corporation and its
stockholders.
(g) In the event any provision (or portion thereof) of this Section
3.2 shall be found to be invalid, prohibited or unenforceable for any reason,
the remaining provisions (or portions thereof) of this Section shall remain in
full force and effect, and shall be construed as if such invalid, prohibited
or unenforceable provision had been stricken herefrom or otherwise rendered
inapplicable, it being the intent of this Corporation and its stockholders
that each such remaining provision (or portion thereof) of this Section 3.2
remain, to the fullest extent permitted by law, applicable and enforceable as
to all stockholders, including stockholders owning an amount of stock over the
Limit, notwithstanding any such finding.
3.3 Except as otherwise specifically required by the Missouri General
and Business Corporation Law, or by these Articles of Incorporation, or by the
Corporation's Bylaws, or by any authorizing resolution of the Board of
Directors providing for the issuance of a class or series of Preferred Stock,
whenever the holders of shares of stock of
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the Corporation shall be entitled to vote as a class with respect to any
matter, the affirmative vote of a majority of the outstanding shares of such
class shall be required to constitute the act of such class.
3.4 There shall be no right to cumulative voting.
ARTICLE IV - PREEMPTIVE RIGHTS
4.1 No holder of shares of any class of stock of the Corporation, either
now or hereafter authorized or issued, shall have any preemptive or
preferential right of subscription to any shares of any class of stock of the
Corporation, either now or hereafter authorized, or to any securities
convertible into stock of any class of the Corporation, issued or sold, nor
any right of subscription to any such security, other than such, if any, as
the Board of Directors in its discretion may from time to time determine and
at such prices as the Board of Directors may from time to time fix, pursuant
to the authority conferred by these Articles of Incorporation.
ARTICLE V - INCORPORATOR
5.1 The name and place of residence of the incorporator is: Donald R.
Crandell, 531 Vine Street, Poplar Bluff, Missouri 63901.
ARTICLE VI - DIRECTORS
6.1 The number of directors to constitute the initial Board of Directors
shall be seven (7); provided, however, that such number may be fixed, from
time to time, at not less than five (5) nor more than fifteen (15), by, or in
the manner provided in, the Bylaws of the Corporation, and any such change
shall be reported in writing to the Secretary of State of the State of
Missouri within thirty (30) calendar days of such change. The directors shall
be divided into three classes: Class I, Class II and Class III. The number
of directors in any such class shall not exceed the number of directors in any
other class by more than one (1). The term of office of the initial Class I
Directors shall expire at the annual meeting of shareholders of the
Corporation in 1999; the term of office of the initial Class II Directors
shall expire at the annual meeting of shareholders of the Corporation in 2000;
and the term of office of the initial Class III Directors shall expire at the
annual meeting of shareholders of the Corporation in 2001; or in each case
thereafter until their respective successors are duly elected and qualified.
At each annual election held after 1998, the Directors chosen to succeed those
whose terms then expire shall be identified as being of the same class as the
Directors they succeed and shall be elected for a term of three (3) years
expiring at the third succeeding annual shareholder meeting or thereafter
until their respective successors are duly elected and qualified. If the
number of Directors is changed, any increase or decrease in the number of
Directors shall be apportioned among the classes so as to maintain the number
of Directors in each class as nearly equal as possible.
6.2 Any vacancy on the Board (whether such vacancy is caused by death,
resignation, or removal for cause or is the result of an increase in the
number of directors) shall be filled by a majority of the directors then in
office. Any Director elected to fill a vacancy in any class (whether such
vacancy is caused by death, resignation, or removal with cause, or is the
result of an increase in the number of directors in such class) shall hold
office for a term which shall expire at the next election of directors by the
shareholders of the Corporation.
6.3 At a meeting called expressly for that purpose, the entire Board of
Directors, or any individual Director or Directors, may be removed, but only
for cause, and only upon the affirmative vote of the holders of at least
eighty percent (80%) of the total votes to which all of the shares then
entitled to vote at a meeting of shareholders called for an election of
Directors are entitled; provided, however, if less than the entire Board of
Directors is to be removed, no individual Director may be so removed if the
votes cast against such Director's removal would be sufficient to elect such
Director if then cumulatively voted at an election of the class of Directors
of which such Director is a part.
6.4 In addition to any affirmative vote required by law or otherwise,
any amendment, alteration, change or repeal of the provisions of this Article
VI shall require the affirmative vote of the holders of at least eighty
percent
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(80%) of the total votes to which all of the shares then entitled to vote at a
meeting of shareholders called for an election of Directors are entitled,
unless such amendment, alteration, change or repeal has previously been
expressly approved by the Board of Directors of the Corporation by the
affirmative vote or consent of at least sixty-six and two-thirds percent
(66-2/3%) of the number of Directors then authorized by, or in the manner
provided in, the Bylaws, in which case the shareholder vote required by this
Article 6.4 shall not apply.
6.5 The persons to constitute the initial Board of Directors of the
Corporation are:
(a) Class I Directors (term to expire in 1999):
(i) James W. Tatum
(ii) Ronnie D. Black
(b) Class II Directors (term to expire in 2000):
(i) Donald R. Crandell
(ii) Samuel H. Smith
(iii) L. Douglas Bagby
(c) Class III Directors (term to expire in 2001):
(i) Leonard W. Ehlers
(ii) Thadis R. Seifert
ARTICLE VII - DURATION
7.1 The duration of the Corporation is perpetual.
ARTICLE VIII - PURPOSE AND POWERS
8.1 The Corporation is formed for the following purposes:
(a) To conduct business as a thrift holding company and to provide
financial services through subsidiary corporations;
(b) To own, hold, rent, lease, operate, manage, hypothecate, sell
and convey such real and personal property as may be useful and desirable in
the operation of the Corporation's business; and
(c) To possess and enjoy all rights, powers and privileges as are
granted to corporations under the Missouri General and Business Corporation
Law.
ARTICLE IX - INDEMNIFICATION
9.1 The Corporation shall and does hereby indemnify any person who is or
was a Director or executive officer of the Corporation or any subsidiary
against any and all expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement and reasonably incurred by such person in
connection with any threatened, pending or completed civil, criminal,
administrative or investigative action, suit, proceeding or claim (including
any action by or in the right of the Corporation or a subsidiary) by reason of
the fact that such person is or was serving in such capacity; provided,
however, that no such person shall be entitled to any indemnification pursuant
to this Article IX on account of (i) conduct which is finally adjudged to have
been knowingly fraudulent or deliberately dishonest or to have constituted
willful misconduct, or (ii) an accounting for profits pursuant to Section
16(b) of the Securities Exchange Act of 1934, as amended from time to time, or
pursuant to a successor statute or regulation.
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9.2 The Corporation may, to the extent that the Board of Directors deems
appropriate and as set forth in a Bylaw or authorizing resolution, indemnify
any person who is or was a non-executive officer, or employee or agent of the
Corporation or any subsidiary or who is or was serving at the request of the
Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise (including an employee
benefit plan) against any and all expenses (including attorneys' fees),
judgements, fines and amounts paid in settlement and reasonably incurred by
such person in connection with any threatened, pending or completed civil,
criminal, administrative or investigative action, suit, proceeding or claim
(including an action by or in the right of the Corporation or a subsidiary) by
reason of the fact that such person is or was serving in such capacity;
provided, however, that no such person shall be entitled to any
indemnification pursuant to this Section 9.2 on account of (i) conduct which
is finally adjudged to have been knowingly fraudulent or deliberately
dishonest or to have constituted willful misconduct, or (ii) an accounting for
profits pursuant to Section 16(b) of the Securities Exchange Act of 1934, as
amended from time to time, or pursuant to a successor statute or regulation.
9.3 The Corporation may, to the extent that the Board of Directors deems
appropriate, make advances of expenses, including attorneys' fees, incurred
prior to the final disposition of a civil, criminal, administrative or
investigative action, suit, proceeding or claim (including an action by or in
the right of the Corporation or a subsidiary) to any person to whom
indemnification is or may be available under this Article IX; provided,
however, that prior to making any advances, the Corporation shall receive a
written undertaking by or on behalf of such person to repay such amounts
advanced in the event that it shall be ultimately determined that such person
is not entitled to such indemnification.
9.4 The indemnification and other rights provided by this Article IX
shall not be deemed exclusive of any other rights to which a person to whom
indemnification is or otherwise may be available (under these Articles of
Incorporation or the Bylaws or any agreement or vote of shareholders or
disinterested Directors or otherwise), may be entitled. The Corporation is
authorized to purchase and maintain insurance on behalf of the Corporation or
any person to whom indemnification is or may be available against any
liability asserted against such person in, or arising out of, such person's
status as Director, officer, employee or agent of the Corporation, any of its
subsidiaries or another corporation, partnership, joint venture, trust or
other enterprise (including an employee benefit plan) which such person is
serving at the request of the Corporation.
9.5 Each person to whom indemnification is granted under this Article IX
is entitled to rely upon the indemnification and other rights granted hereby
as a contract with the Corporation and such person and such person's heirs,
executors, administrators and estate shall be entitled to enforce against the
Corporation all indemnification and other rights granted to such person by
Sections 9.1 and 9.3 and this Article IX. The indemnification and other
rights granted by Sections 9.1 and 9.3 and this Section 9.5 shall survive
amendment, modification or repeal of this Article IX, and no such amendment,
modification or repeal shall act to reduce, terminate or otherwise adversely
affect the rights to indemnification granted hereby, with respect to any
expenses, judgments, fines and amounts paid in settlement incurred by a person
to whom indemnification is granted under this Article IX with respect to an
action, suit, proceeding or claim that arises out of acts or omissions of such
person that occurred prior to the effective date of such amendment,
modification or repeal.
Any indemnification granted by the Board of Directors pursuant this
Article IX shall inure to the person to whom the indemnification is granted
and such person's heirs, executors, administrators and estate; provided,
however, that such indemnification may be changed, modified or repealed, at
any time or from time to time, at the discretion of the Board of Directors,
and the survival of such indemnification shall be in accordance with terms
determined by the Board of Directors.
9.6 For the purposes of this Article IX, "subsidiary" shall mean any
corporation, partnership, joint venture, trust or other enterprise of which a
majority of the voting power, equity or ownership interest is directly or
indirectly owned by the Corporation.
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ARTICLE X - CERTAIN BUSINESS COMBINATIONS
10.1 (a) In addition to any affirmative vote required by law, any other
provision of these Articles of Incorporation or by any resolution or
resolutions of the Board of Directors providing for the issue of any class or
series of Preferred Stock (a "Preferred Stock Designation"), and except as
otherwise expressly provided in Section 10.2 of this Article X:
(i) any merger or consolidation of the Corporation or any
Subsidiary (as hereinafter defined) with (a) any Interested Shareholder (as
hereinafter defined) or (b) any other corporation (whether or not itself an
Interested Shareholder) which is, or after such merger or consolidation would
be, an Affiliate (as hereinafter defined) of an Interested Shareholder; or
(ii) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of transactions) to or with
any Interested Shareholder or any Affiliate of any Interested Shareholder of
25% or more of the assets of the Corporation or any Subsidiary; or
(iii) the issuance or transfer by the Corporation or any
Subsidiary (in one transaction or a series of transactions) of any securities
of the Corporation or any Subsidiary to any Interested Shareholder or any
Affiliate of any Interested Shareholder in exchange for any assets, cash,
securities or other property (or a combination thereof) which equals or
exceeds 25% of the Fair Market Value (as hereinafter defined) of the Common
Stock of the Holding Company; or
(iv) the adoption of any plan or proposal for the liquidation
or dissolution of the Corporation proposed by or on behalf of any Interested
Shareholder; or
(v) any reclassification of securities (including any reverse
stock split) or recapitalization of the Corporation, or any merger or
consolidation of the Corporation with any of its Subsidiaries, or any other
transaction (whether or not with or into or otherwise involving any Interested
Shareholder), which has the effect, directly or indirectly, of increasing the
proportionate share of the outstanding shares of any class of equity
securities of the Corporation of any Subsidiary which is Beneficially Owned
(as hereinafter defined) by any Interested Shareholder or any Affiliate of any
Interested Shareholder;
shall require the affirmative vote of (x) the holders of at least eighty
percent (80%) of the voting power of all of the then outstanding shares of the
capital stock of the Corporation entitled to vote generally in the election of
directors (the "Voting Stock"), voting together as a single class, and (y) the
holders of at least a majority of the voting power of all of the
then-outstanding shares of the Voting Stock not Beneficially Owned by such
Interested Shareholder, or any of its Affiliates or Associates (as hereinafter
defined), voting together as a single class. Such affirmative vote shall be
required notwithstanding any provision of law or of any agreement with any
national securities exchange or otherwise which might otherwise permit a
lesser vote or no vote.
(b) The term "Business Combination" as used in this Article X shall
mean any transaction which is referred to in any one or more of subparagraphs
(i) through (v) of paragraph (a) of this Section 10.1.
10.2 The provisions of Section 10.1 of this Article X shall not be
applicable to any particular Business Combination, and such Business
Combination shall require only such affirmative vote as is required by laws,
any other provision of these Articles of Incorporation and any Preferred Stock
Designation, if a majority of the Whole Board (as defined below) shall by
resolution have approved a memorandum of understanding with the Interested
Shareholder with respect to, and on substantially the same terms as, such
Business Combination prior to the first time such Interested Shareholder or
any Affiliate or Associate of such Interested Shareholder became an Interested
Shareholder.
10.3 For the purposes of this Article X:
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(a) A "person" means any individual, limited partnership, general
partnership, corporation or other firm or entity.
(b) "Interested Shareholder" means any person (other than the
Corporation or any Subsidiary) who or which:
(i) is the Beneficial Owner, directly or indirectly, of 10%
or more of the voting power (with respect to voting generally in the election
of directors) of the outstanding Voting Stock; or
(ii) is an Affiliate or an Associate of the Corporation and at
any time within the two-year period immediately prior to the date in question
was the Beneficial Owner, directly or indirectly, of 5% or more of the voting
power (with respect to voting generally in the election of directors) of the
then-outstanding Voting Stock; or
(iii) is an assignee of or has otherwise succeeded to any
shares of Voting Stock which were at any time within the two-year period
immediately prior to the date in question Beneficially Owned by any Interested
Shareholder, if such assignment or succession shall have occurred in the
course of a transaction or series of transactions not involving a public
offering within the meaning of the Securities Act of 1933, as amended.
(c) A person shall be a "Beneficial Owner" of, and shall
"Beneficially Own," any Voting Stock:
(i) which such person or any of its Affiliates or Associates
beneficially owns, directly or indirectly, within the meaning of the
Securities Exchange Act of 1934, as in effect on the date of filing these
Articles of Incorporation; or
(ii) which such person or any of its Affiliates or Associates
has (a) the right to acquire (whether such right is exercisable immediately or
only after the passage of time) pursuant to any agreement, arrangement or
understanding or upon the exercise of conversion rights, exchange rights,
warrants or options, or otherwise, or (b) the right to vote pursuant to any
agreement, arrangement or understanding (but neither such person nor any such
Affiliate or Associate shall be deemed to be the Beneficial Owner of any
shares of Voting Stock solely by reason of a revocable proxy granted for a
particular meeting of shareholders, pursuant to a public solicitation of
proxies for such meeting, if such person, Affiliate or Associate is not
otherwise deemed the Beneficial Owner of such shares); or
(iii) which are beneficially owned, directly or indirectly,
within the meaning of the Securities Exchange Act of 1934, as in effect on the
date of filing these Articles of Incorporation, by any other person with which
such person or any of its Affiliates or Associates has any agreement,
arrangement or understanding for the purpose of acquiring, holding, voting
(other than solely by reason of a revocable proxy as described in subparagraph
(ii) of this paragraph (c)) or disposing of any shares of Voting Stock;
provided, however, that in the case of any employee stock ownership or similar
plan of the Corporation or of any Subsidiary in which the beneficiaries
thereof possess the right to vote any shares of Voting Stock held by such
plan, no such plan nor any trustee with respect thereto (nor any Affiliate of
such trustee), solely by reason of such capacity of such trustee, shall be
deemed, for any purposes hereof, to Beneficially Own any shares of Voting
Stock held under any such plan; and provided, however, that in case of any
individual retirement account or similar plan for which any Subsidiary serves
as trustee or custodian and for which the beneficiary thereof possesses the
right to vote any shares of Voting Stock held by such account or plan, no such
account or plan nor any trustee or custodian with respect thereto (nor any
Affiliate of such trustee or custodian) solely by reason of such capacity as
trustee or custodian, shall be deemed, for any purposes hereof, to
Beneficially Own any shares of Voting Stock held under any such plan or
account.
(d) For the purposes of determining whether a person is an
Interested Shareholder pursuant to paragraph (b) of this Section 10.3, the
number of shares of Voting Stock deemed to be outstanding shall include shares
deemed to be Beneficially Owned by such person through application of
paragraph (c) of this Section 10.3 but shall not
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include any other unissued shares of Voting Stock which may be issuable
pursuant to any agreement, arrangement or understanding, or upon exercise of
conversion rights, warrants or options, or otherwise.
(e) "Affiliate" or "Associate" shall have the respective meaning
ascribed to such terms in Rule 12b-2 of the General Rules and Regulations
under the Securities Exchange Act of 1934, as in effect on the date of filing
these Articles of Incorporation.
(f) "Subsidiary" means any corporation of which a majority of any
class of equity security is owned, directly or indirectly, by the Corporation;
provided, however, that for the purposes of the definition of Interested
Shareholder set forth in paragraph (b) of this Section 10.3, the term
"Subsidiary" shall mean only a corporation of which a majority of each class
of equity security is owned, directly or indirectly, by the Corporation.
(g) "Whole Board" means the total number of directors which the
Corporation would have if there were no vacancies on the Board of Directors;
(h) The "Fair Market Value" of any assets, securities or other
property shall mean the fair market value thereof, as determined by a majority
of the Whole Board in good faith after reasonable inquiry.
10.4 A majority of the Whole Board shall have the power and duty to
determine in good faith, on the basis of information known to them after
reasonable inquiry, all facts necessary to determine compliance with this
Article X, including, without limitation, (i) whether a person is an
Interested Shareholder, (ii) the number of shares of Voting Stock Beneficially
Owned by any person, and (iii) whether a person is an Affiliate or Associate
of another.
10.5 A majority of the Whole Board shall have the right to demand that
any person who is reasonably believed to be an Interested Shareholder (or to
hold or record shares of Voting Stock Beneficially Owned by any Interested
Shareholder) supply the Corporation with complete information as to (a) the
record owner(s) of all shares Beneficially Owned by such person who is
reasonably believed to be an Interested Shareholder (or to hold of record any
such Shares), (b) the number of, and class or series of, shares Beneficially
Owned by such person who is reasonably believed to be an Interested
Shareholder (or to hold of record any such Shares) and held or record by each
such record owner and the number(s) of the stock certificate(s) evidencing
such shares, and (c) any other factual matter relating to the applicability or
effect of this Article X, as may be reasonably requested of such person, and
such person shall furnish such information within ten (10) days after receipt
of such demand.
10.6 Nothing contained in this Article X shall be construed to relieve
any Interested Shareholder from any fiduciary obligation imposed by law.
10.7 Notwithstanding any other provisions of these Articles of
Incorporation or any provision of law which might otherwise provide for lesser
vote or no vote, but in addition to any affirmative vote of the holders of any
particular class or series of the Voting Stock required by law, these Articles
of Incorporation or any Preferred Stock Designation, the affirmative vote of
(a) the holders of at least eighty percent (80%) of the voting power of all of
the then-outstanding shares of the Voting Stock, voting together as a single
class, and (b) the holders of at least a majority of the voting power of all
of the then-outstanding shares of the Voting Stock not Beneficially Owned by
any Interested Shareholder or any Affiliate or Associate of any Interested
Shareholder, voting together as single class, shall be required to alter,
amend or repeal this Article X.
ARTICLE XI - AMENDMENT OF ARTICLES OF INCORPORATION AND BYLAWS
11.1 Except as otherwise specifically set forth in these Articles of
Incorporation, the Corporation reserves the right to amend, alter, change or
repeal any provision contained in these Articles of Incorporation, and
amendments to the Articles of Incorporation shall be made in the manner
prescribed by the Missouri General and Business Corporation Law.
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11.2 The power to make, alter, amend, or repeal the Bylaws of the
Corporation shall be vested exclusively in the Board of Directors, unless
otherwise provided in such Bylaws.
ARTICLE XII - FURTHER POWERS OF BOARD OF DIRECTORS
12.1 The Board of Directors shall have and exercise such further powers
as are provided to it under present or future laws of the State of Missouri.
* * *
B-10
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IN WITNESS WHEREOF, these Articles of Incorporation have been signed this
____ day of ____________________ 1998.
---------------------------------
Donald R. Crandell, Incorporator
STATE OF MISSOURI )
) ss
COUNTY OF BUTLER )
I, ______________________________, a notary public, do hereby certify
that on the _______ day of _______________________ 1998, Donald R. Crandell,
personally appeared before me, who being by me first duly sworn, declared that
he is the person who signed the foregoing document as incorporator, that he is
a natural person of the age of eighteen years or more, and that the statements
therein contained are true.
---------------------------------
Notary Public
(NOTARIAL SEAL)
My commission expires ________ ___, _____
B-11
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REVOCABLE PROXY
SOUTHERN MISSOURI BANCORP, INC.
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ANNUAL MEETING OF STOCKHOLDERS
OCTOBER 19, 1998
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The undersigned hereby appoints ________________________________________
as the official Proxy Committee of the Board of Directors with full powers of
substitution, as attorneys and proxies for the undersigned, to vote all shares
of common stock of Southern Missouri Bancorp, Inc. which the undersigned is
entitled to vote at the Annual Meeting of Stockholders ("Meeting"), to be held
at the Greater Poplar Bluff Area Chamber of Commerce Building, 1111 West Pine,
Poplar Bluff, Missouri, on Monday, October 19, 1998, at 9:00 a.m., Central
Time, and at any and all adjournments thereof, as follows:
VOTE
FOR WITHHELD
--- --------
1. The election as directors of all nominees listed
below (except as marked to the contrary below). [ ] [ ]
Leonard W. Ehlers
Thadis R. Seifert
INSTRUCTION: To withhold your vote
for any individual nominee, write that
nominee's name on the line below.
---------------------------------------
VOTE
FOR AGAINST ABSTAIN
--- ------- -------
2. The approval of a proposal to change the [ ] [ ] [ ]
Corporation's state of incorporation from
Delaware to Missouri through a merger of
the Company with a newly formed, wholly
owned Missouri subsidiary.
3. The approval of an amendment to the [ ] [ ] [ ]
Corporation's corporate charter to increase
the number of authorized shares of common
stock.
4. Such other matters that may properly come [ ] [ ] [ ]
before the Meeting or any adjournments thereof.
The Board of Directors recommends a vote "FOR" the above proposals.
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THIS PROXY WILL BE VOTED AS DIRECTED, BUT IF NO INSTRUCTIONS ARE SPECIFIED,
THIS PROXY WILL BE VOTED FOR THE PROPOSITIONS STATED. IF ANY OTHER BUSINESS
IS PRESENTED AT SUCH MEETING, THIS PROXY WILL BE VOTED BY THOSE NAMED IN THIS
PROXY IN THEIR BEST JUDGMENT. AT THE PRESENT TIME, THE BOARD OF DIRECTORS
KNOWS OF NO OTHER BUSINESS TO BE PRESENTED AT THE MEETING.
- ------------------------------------------------------------------------------
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THIS PROXY IS SOLICITED BY THE BOARD OF DIRECTORS
Should the undersigned be present and elect to vote at the Meeting or at
any adjournment thereof and after notification to the Secretary of the
Corporation at the Meeting of the stockholder's decision to terminate this
proxy, then the power of said attorneys and proxies shall be deemed terminated
and of no further force and effect.
The undersigned acknowledges receipt from the Corporation, prior to the
execution of this proxy, of notice of the Meeting, a proxy statement dated
September 22, 1998 and the 1998 Annual Report to Stockholders.
Dated: , 1998
--------------------
- ---------------------------- -----------------------------
PRINT NAME OF STOCKHOLDER PRINT NAME OF STOCKHOLDER
- ---------------------------- -----------------------------
SIGNATURE OF STOCKHOLDER SIGNATURE OF STOCKHOLDER
Please sign exactly as your name appears on this proxy card. When signing as
attorney, executor, administrator, trustee or guardian, please give your full
title. If shares are held jointly, only one signature is required.
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PLEASE COMPLETE, DATE, SIGN AND MAIL THIS PROXY PROMPTLY IN THE ENCLOSED
POSTAGE-PREPAID ENVELOPE.
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