SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No.____________)*
WFS BANCORP, INC.
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(Name of Issuer)
Common Stock, $.01 Par Value
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(Title of Class of Securities)
92923N100
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(CUSIP Number)
Burton G. Dunlap, President, WFS Bancorp, Inc.,
340 South Broadway, Wichita KS 67202-4304 (316)383-8404
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(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
August 1, 1996
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(Date of Event which Requires Filing
of this Statement)
If the filing person has previously filed a statement of Schedule 13G to report
the acquisition which is the subject of the Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ].
Check the following box if a fee is being paid with this statement [X].
(A fee is not required only if the reporting person: (1) has a previous
statement on file reporting beneficial ownership of more than five percent of
the class of securities described in Item 1; and (2) has filed no amendment
subsequent thereto reporting beneficial ownership of five percent or less of
such class.) (See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits, should be filed with
the Commission. See Rule 13d-1(a) for other parties to whom copies are to be
sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter the
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
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SCHEDULE 13D
CUSIP No. 92923N100 Page 2 of 4 Pages
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
EMPRISE FINANCIAL CORPORATION E.I.N. 48-1005424
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [ ]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
WC
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(a) [ ]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
Kansas
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NUMBER OF 7 SOLE VOTING POWER
SHARES 85,100
BENEFICIALLY --------------------------------------------------------------
OWNED BY 8 SHARED VOTING POWER
EACH 0
REPORTING --------------------------------------------------------------
PERSON 9 SOLE DISPOSITIVE POWER
WITH 85,100
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10 SHARED DISPOSITIVE POWER
0
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
85,100
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
[ ]
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.5
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14 TYPE OF REPORTING PERSON*
CO
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THIS COVER PAGE, RESPONSES TO
ITEMS 1-7 (INCLUDING EXHIBITS) OF THE SCHEDULE, AND
THE SIGNATURE ATTESTATION
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Page 3 of 4 Pages
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Schedule 13D
Item 1. Security and Issuer
This statement relates to the Common Stock, $.01 par value, of WFS Bancorp,
Inc., 340 South Broadway, Wichita, KS 67202-4304
Item 2. Identity and Background
This statement is being filed by Emprise Financial Corporation ("EFC"), a
corporation organized under the laws of the State of Kansas. The principal
executive offices and principal business are located at 211 North Broadway,
Wichita, KS 67201-0247.
EFC's principal business is as a multi-bank holding company with five banks
having a total of 22 banking locations in Kansas.
The executive officers and directors of EFC are set forth below. Each is a
citizen of the United States.
W. A. Michaelis, Jr. Chairman of the Board
M. D. Michaelis President
L. Thomas Veatch Sr. Vice President and Chief Financial Officer
(d) During the last five years neither EFC nor any of its executive officers or
directors has been convicted in a criminal proceeding.
(e) During the last five years neither EFC nor any of its executive officers or
directors has been subject to a judgment, decree, or final order enjoining
future violations of, or prohibiting or mandating activities subject to, federal
or state securities laws or finding any violation with respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration
EFC has purchased shares of Common Stock between December 8, 1995, and August 5,
1996, in blocks of 100 to 37,000 shares at prices ranging from $21.75 to $23.10
for a total of 85,100 shares for $1,950,750.00 All funds were available from
working capital of EFC.
Item 4. Purpose of Transaction
Emprise Bank, a wholly owned subsidiary of EFC, entered into an Amended and
Restated Agreement and Plan of Merger ("Agreement") with Issuer entered into as
of November 30, 1995, and amended and restated as of January 31, 1996 (attached
hereto as Exhibit A). Under the terms of Section 1.5 of the Agreement, Emprise
Bank has assigned its rights and responsibilities to EFC. Pursuant to the terms
of the Agreement, as assigned to EFC, Emprise Acquisition Sub, Inc. ("EAS"), a
wholly-owned subsidiary of EFC, will merge with and into Issuer (the "Merger"),
with Issuer as the surviving entity. At the time of the merger, each of the
outstanding voting shares of the surviving corporation (i.e., Issuer) shall be
canceled in exchange for a cash payment of $23.25 payable to the holder thereof
by EFC. Simultaneously with the Merger, each share of EAS will convert into one
share of common stock of the surviving corporation, which will then be a wholly
owned subsidiary of EFC.
Immediately following the Merger of EAS into Issuer, the surviving corporation
of the Merger (i.e. Issuer) will merge with and into EFC (the "Related Merger"),
under an Agreement and Plan of Merger between EFC and Issuer, entered into as of
the 1st day of April, 1996 (attached hereto as Exhibit B). EFC will be the sole
surviving entity.
Under the Amended and Restated Agreement and Plan of Merger, immediately
following the Merger, the directors and officers of EAS will become the
directors and officers of Issuer. Furthermore, the articles of incorporation and
bylaws of Issuer will be amended and restated at the effective time of the
Merger to read as did the articles of incorporation and bylaws of EAS
immediately prior to the Merger (except the name of the surviving corporation
will remain unchanged).
After the Merger the securities of Issuer will no longer be listed on any
national securities exchange.
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Page 4 of 4 Pages
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The acquisition of the shares of Common Stock of Issuer is for the purpose of
obtaining such shares at more favorable prices than what would be payable by EFC
to the holders of outstanding shares under its obligations under the Amended and
Restated Agreement and Plan of Merger.
Item 5. Interest in Securities of the Issuer
(a) and (b). EFC owns 85,100 shares representing 5.5% of the Common Stock, $0.01
par value of WFS Bancorp, Inc., of which it has sole power to vote or dispose of
the shares. It has no shared powers. None of the individuals listed in Item 2
owns any of the Common stock.
(c). The following purchases of Common Stock of WFS Bancorp, Inc., were effected
during the past 60 days by EFC:
7/03/96 5,000 sh @ $23.0625
7/05/96 5,000 sh @ $23.0625
7/30/96 6,000 sh @ $23.10
8/01/96 5,000 sh @ $23.10
8/05/96 37,000 sh @ $23.0625
All of the above shares were purchased by EFC through brokerage
transactions with First Chicago Corp. None of the individuals listed in Item 2
above has effected any transaction during the last 60 days.
(d). Not applicable
(e). Not applicable
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to
Securities of the Issuer.
In addition to the Amended and Restated Agreement and Plan of Merger and the
Agreement and Plan of Merger described in Item 4 and attached hereto as Exhibits
A and B, respectively, EFC entered into a letter agreement with Keefe, Bruyette
& Woods, Inc., Two World Trade Center, 85th Floor, New York, N.Y. 10048, in
connection with the Merger pursuant to which EFC will pay a cash fee of 0.50% of
the total consideration paid by EFC to WFS in connection with the Merger.
Item 7. Materials to Be Filed as Exhibits.
Exhbit A - Amended and Restated Agreement and Plan of Merger By and Between
WFS Bancorp, Inc., and Emprise Bank, Wichita entered into as of
November 30, 1995 and Amended and Restated as of January 31,
1996.
Exhibit B - Agreement and Plan of Merger between Emprise Financial
Corporation and WFS Bancorp, Inc., under the charter and title of
Emprise Financial Corporation made and entered into as of the 1st
day of April, 1996.
Signature
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Date: 8/7/96 /s/ M.D. Michaelis
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M.D. Michaelis, President
AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER
BY AND BETWEEN
WFS BANCORP, INC.
AND
EMPRISE BANK, WICHITA
Entered Into as of November 30, 1995
and Amended and Restated as of January 31, 1996
EXHIBIT A
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TABLE OF CONTENTS
AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER
Parties ......................................................... 1
Preamble ........................................................ 1
ARTICLE 1 - TRANSACTIONS AND TERMS OF MERGER .................... 1
1.1 Merger ............................................ 1
1.2 Time and Place of Closing.......................... 2
1.3 Effective Time .................................... 2
1.4 Related Mergers .................................. 2
1.5 Restructuring of Merger ................................ 3
ARTICLE 2 - TERMS OF MERGER ..................................... 3
2.1 Charter............................................ 3
2.2 Bylaws ............................................ 4
2.3 Directors and Officers ............................ 4
ARTICLE 3 - MANNER OF CANCELING SHARES OF WFS ................... 4
3.1 Cancellation of Shares of WFS...................... 4
3.2 Termination of WFS Stock Plans .................... 4
3.3 Dissenting Shareholders ........................... 4
3.4 Conversion of Stock of Acquisition Company ........ 4
ARTICLE 4 - SURRENDER OF SHARES.................................. 5
4.1 Surrender Procedures .............................. 5
4.2 Rights of Former WFS Shareholders.................. 5
ARTICLE 5 - REPRESENTATIONS AND WARRANTIES OF WFS................ 6
5.1 Organization, Standing, and Power.................. 6
5.2 Authority; No Breach By Agreement.................. 6
5.3 Capital Stock...................................... 7
5.4 WFS Subsidiaries .................................. 7
5.5 Financial Statements .............................. 8
5.6 Absence of Certain Changes or Events .............. 8
5.7 Tax Matters........................................ 8
5.8 Assets ............................................ 9
5.9 Environmental Matters............................. 10
5.10 Compliance with Laws ............................. 10
5.11 Labor Relations................................... 11
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5.12 Employee Benefit Plans ............................ 11
5.13 Material Contracts ................................ 13
5.14 Legal Proceedings.................................. 14
5.15 Reports............................................ 14
5.16 Statements True and Correct........................ 14
5.17 Regulatory Matters ................................ 15
5.18 State Takeover Laws................................ 15
5.19 Charter Provisions ................................ 15
5.20 Insurance.......................................... 15
5.21 Notes and Leases .................................. 15
5.22 Personal Property.................................. 15
ARTICLE 6 - REPRESENTATIONS AND WARRANTIES OF ACQUIROR .......... 16
6.1 Organization and Standing.......................... 16
6.2 Authority; No Breach by Agreement.................. 16
6.3 Financial Statements .............................. 17
6.4 Absence of Certain Changes or Events .............. 17
6.5 Compliance with Laws .............................. 17
6.6 Legal Proceedings ................................. 18
6.7 Availability of Funds ............................. 18
6.8 Statements True and Correct ....................... 18
6.9 Regulatory Matters ................................ 18
ARTICLE 7 - CONDUCT OF BUSINESS PENDING CONSUMMATION ........... 19
7.1 Affirmative Covenants of WFS ........................... 19
7.2 Negative Covenants of WFS.......................... 19
7.3 Covenants of Acquiror.............................. 22
7.4 Adverse Changes in Condition ...................... 22
7.5 Reports ........................................... 22
7.6 Treatment of Stock Options ........................ 23
ARTICLE 8 - ADDITIONAL AGREEMENTS .............................. 23
8.1 Proxy Statement; Shareholder Approval.............. 23
8.2 Applications ...................................... 23
8.3 Filings with State Offices ........................ 23
8.4 Agreement as to Efforts to Consummate.............. 23
8.5 Investigation and Confidentiality.................. 24
8.6 Press Releases .................................... 24
8.7 Certain Actions.................................... 24
8.8 State Takeover Laws................................ 25
8.9 Charter Provisions ................................ 25
8.10 Employee Benefits and Contracts.................... 25
8.11 Indemnification.................................... 26
8.12 Availability of Funds ............................. 27
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<PAGE>
8.13Dealings with ESOP ..................................... 27
ARTICLE 9 - CONDITIONS PRECEDENT TO OBLIGATIONS TO
CONSUMMATE ............................................ 28
9.1 Conditions to Obligations of Each Party............... 28
(a) Shareholder Approval ............................. 28
(b) Regulatory Approvals ............................. 28
(c) Legal Proceedings ................................ 28
(d) ESOP Ruling .......................................... 29
9.2 Conditions to Obligations of Acquiror ................ 29
(a) Representations and Warranties ................... 29
(b) Performance of Agreements and Covenants .......... 29
(c) Certificates ..................................... 29
(d) Accountant's Letters ............................. 30
(e) Related Mergers ...................................... 30
(f) Stockholder Approval ............................. 30
9.3 Conditions to Obligations of WFS ..................... 30
(a) Representations and Warranties ................... 30
(b) Performance of Agreements and Covenants .......... 30
(c) Certificates ..................................... 30
(d) Fairness Opinion ................................. 31
ARTICLE 10 - TERMINATION ........................................ 31
10.1 Termination........................................... 31
10.2 Effect of Termination................................. 32
10.3 Non-Survival of Representations and Covenants......... 33
ARTICLE 11 - MISCELLANEOUS ...................................... 33
11.1 Definitions........................................... 33
11.2 Expenses ............................................. 40
11.3 Brokers and Finders................................... 42
11.4 Entire Agreement ..................................... 42
11.5 Amendments ........................................... 42
11.6 Waivers............................................... 43
11.7 Assignment ........................................... 43
11.8 Notices............................................... 43
11.9 Governing Law......................................... 44
11.10 Counterparts ......................................... 44
11.11 Captions ............................................. 45
11.12 Interpretations....................................... 45
11.13 Enforcement of Agreement ............................. 45
11.14 Severability ......................................... 45
11.15 Restatement of Prior Agreement ...................... 45
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<PAGE>
AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER
THIS AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER (this "Agreement")
is made and entered into as of the 30th day of November, 1995, and amended and
restated as of the 31st day of January, 1996, by and between WFS BANCORP, INC.
("WFS"), a Delaware corporation having its principal office located in Wichita,
Kansas; and EMPRISE BANK, WICHITA ("Acquiror"), a Kansas corporation having its
principal office located in Wichita, Kansas.
Preamble
The Boards of Directors of WFS and Acquiror are of the opinion that the
transactions described herein are in the best interests of the parties and their
respective shareholders. This Agreement provides for the acquisition of WFS by
Acquiror pursuant to the merger of WFS with a wholly-owned Subsidiary of
Acquiror to be hereafter formed and the Related Mergers contemplated, but not
agreed upon, hereunder. At the effective time of the Merger, the outstanding
shares of the capital stock of WFS shall be surrendered and canceled for the
cash price per share as provided herein. As a result, shareholders of WFS shall
be entitled to receive the cash price per share as provided herein in lieu of
any shares or other securities of Acquiror or any other entity and the Surviving
Corporation of the Merger and transactions contemplated hereunder shall continue
to conduct the business and operations of WFS. The Merger described in this
Agreement is subject to the approvals of the shareholders of WFS, the Board of
Governors of the Federal Reserve System, the Office of Thrift Supervision, the
Federal Deposit Insurance Corporation ("FDIC"), and the State Banking Board of
the State of Kansas, and the satisfaction of certain other conditions described
in this Agreement.
Certain terms used in this Agreement are defined in Section of this
Agreement.
NOW, THEREFORE, in consideration of the above and the mutual warranties,
representations, covenants, and agreements set forth herein, the parties agree
as follows:
ARTICLE 1
TRANSACTIONS AND TERMS OF MERGER
1.1 Merger. Subject to the terms and conditions of this Agreement, at the
Effective Time, Acquiror shall have caused the formation of a wholly owned
subsidiary of Acquiror (the "Acquisition Company") for the purpose of merging
such Acquisition Company with and into WFS in accordance with the provisions of
Section 252 of the DGCL and Section 6702 of Chapter 17 of the Kansas Statutes
(the "Merger"). WFS shall be the the Surviving Corporation resulting from
<PAGE>
the Merger and shall continue to be governed by the Laws of the State of
Delaware. The Merger shall be consummated pursuant to the terms of this
Agreement, which has been approved and adopted by the respective Boards of
Directors of WFS and Acquiror, and which Acquiror will cause to be approved by
the Board of Directors and shareholders of the Acquisition Company prior to the
Effective Time.
1.2 Time and Place of Closing. The Closing will take place at 1:00 p.m. on
the date that the Effective Time occurs or at such other time as the Parties,
acting through their chief executive officers or chief financial officers, may
mutually agree. The place of Closing shall be at the offices of Emprise Bank,
Wichita, Kansas, or such other place as may be mutually agreed upon by the
Parties.
1.3 Effective Time. The Merger and other transactions contemplated by this
Agreement, other than the Related Mergers, shall become effective on the date
and at the time the Certificate of Merger reflecting the Merger shall become
effective with the Secretary of State of the State of Delaware and the
Certificate of Merger reflecting the Merger shall become effective with the
Secretary of State of the State of Kansas (the "Effective Time"). Subject to the
terms and conditions hereof, unless otherwise mutually agreed upon in writing by
the chief executive officers or chief financial officers of each Party, the
Acquiror shall determine and designate when the Effective Time occurs, which
shall be not more than 10 days after the last to occur of (i) the effective date
(including expiration of any applicable waiting period) of the last required
Consent of any Regulatory Authority having authority over and approving or
exempting the Merger, and (ii) the date on which the shareholders of WFS approve
this Agreement; provided, however, that Acquiror shall not be required to
designate a date for the Effective Time earlier than April 1, 1996. The
designation of the Effective Time by Acquiror shall be made prior to the last to
occur of the foregoing events and not less than 10 days prior to the Effective
Time.
1.4 Related Mergers. Acquiror intends to cause WFS and Wichita Federal
Savings and Loan Association ("Wichita Federal") to be merged ("Related
Mergers") into Acquiror as the Surviving Corporation of the Related Mergers.
Concurrently with or at approximately the same time Acquiror files applications
with the Regulatory Authorities for the necessary Consents for the Merger,
Acquiror will file applications for the necessary Consents for the Related
Mergers so that they may become effective at approximately the same time or
shortly after the Effective Time. It is anticipated that each of WFS and Wichita
Federal shall enter into Related Merger agreements with Acquiror on such terms
as Acquiror may reasonably request and to take such actions in connection
therewith as may reasonably be necessary to authorize and comply with such
agreement and otherwise to cooperate with Acquiror in its efforts to effect the
Related Mergers; provided, however (i) no WFS Company shall be requested to do
any act in violation of any Law, existing Contract, or fiduciary duty, (ii) such
Related Mergers shall not become effective until after the Effective Time, (iii)
there shall be no stockholder approval by WFS or Wichita Federal of the Related
Mergers until after the Effective Time, and (iv) such agreements for the Related
Mergers will automatically terminate in the event of the termination of this
Agreement prior to the Closing.
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<PAGE>
1.5 Restructuring of Merger. On or before the Effective Time, Acquiror
shall have the right to assign this Agreement to Emprise Financial Corporation
("EFC"), a Kansas corporation having its principal office in Wichita, Kansas,
and the parent corporation of Acquiror. Such assignment to EFC shall include the
right of EFC to form Acquisition Company as its wholly-owned subsidiary, if not
then formed, or acquire all of the capital stock of Acquisition Company, if it
has then been formed. In the event of such assignment, EFC shall cause the
Merger between WFS and Acquisition Company, as the Subsidiary of EFC, to be
consummated as provided in Section of this Agreement. Under such assignment, EFC
shall acquire all of the rights and benefits of Acquiror hereunder and shall be
liable to perform all of the obligations, duties, and covenants of the Acquiror,
and the warranties and representations of Acquiror contained herein shall be
those of EFC and shall be true and correct as to EFC. Notwithstanding such
restructured Merger, the provisions of Section of this Agreement shall continue
in effect insofar as they pertain to the Related Merger of Wichita Federal into
Emprise Bank. Any such assignment shall be in writing with an executed copy
furnished to WFS under which EFC expressly agrees to be bound by all of the
covenants, agreements, representations, and warranties of the Acquiror
hereunder. In addition, in the event the necessary consents of Regulatory
Authorities are denied or Acquiror is advised that any Consent of a Regulatory
Authority is likely to be materially delayed or denied due to the structure of
the proposed Merger and Related Mergers under which WFS and Wichita Federal are
being merged into Emprise Bank, then (i) Acquiror shall assign this Agreement to
EFC as provided above, (ii) the applications for necessary Consents of the
Regulatory Authorities shall be filed accordingly, (iii) Acquiror shall act
diligently to process the amended or newly-filed applications and obtain the
necessary Consents of the Regulatory Authorities as expeditiously as possible,
and (iv) the date set forth in Section of this Agreement shall be changed to a
date six months from the date of assignment contemplated in clause (i) above.
ARTICLE 2
TERMS OF MERGER
2.1 Charter. The Articles of Incorporation of the Surviving Corporation of
the Merger shall be amended and restated at and as of the Effective Time to read
as did the Articles of Incorporation of Acquisition Company immediately prior to
the Effective Time (except that the name of the Surviving Corporation will
remain unchanged or as otherwise provided by the DGCL) until otherwise amended
or repealed.
2.2 Bylaws. The Bylaws of the Surviving Corporation of the Merger shall be
amended and restated at and as of the Effective Time to read as did the Bylaws
of the Acquisition Company immediately prior to the Effective Time (except as
otherwise provided by the DGCL).
2.3 Directors and Officers. The directors and officers of the Acquisition
Company in office immediately prior to the Effective Time, together with such
additional persons as may thereafter be elected, shall serve as the directors
and officers, respectively, of the Surviving Corporation of the Merger from and
after the Effective Time in accordance
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<PAGE>
with the Bylaws of the Surviving Corporation, as amended and restated as of the
Effective Time.
ARTICLE 3
MANNER OF CANCELING SHARES OF WFS
3.1 Cancellation of Shares of WFS. At the Effective Time, by virtue of the
Merger and without any action on the part of the Acquiror, WFS, or the
shareholders of either of the foregoing, all shares of WFS Common Stock issued
and outstanding immediately prior to the Effective Time, including the shares
issued and held by the ESOP, irrespective of whether such shares have been
allocated to the accounts of participants, and the MRRP, shall be canceled on
the books of WFS and in consideration therefor Acquiror shall make a cash
payment equal to $23.25 ("Merger Cash Price") to the holders thereof for each
such share canceled as herein provided.
3.2 Termination of WFS Stock Plans. At or prior to the Effective Time, all
employee stock options under the WFS Stock Plan shall be deemed vested and
exercisable, whether or not then exercisable, and shall be canceled and
terminated and in consideration therefor the holders of such options shall be
paid by WFS (or Acquiror as necessary) from funds of WFS a cash payment for each
share subject to the option in an amount equal to the difference between the
Merger Cash Price for each such share and the price the holder was required to
pay for such share upon the exercise of the option.
3.3 Dissenting Shareholders. Any holder of shares of WFS Common Stock who
perfects such holder's dissenters' rights in accordance with and as contemplated
by Section 262 of the DGCL shall be entitled to receive the value of such shares
in cash as determined pursuant to such provision of Law; provided, that no such
payment shall be made to any dissenting shareholder unless and until such
dissenting shareholder has complied with the applicable provisions of the DGCL
and surrendered to WFS the certificate or certificates representing the shares
for which payment is being made. In the event that after the Effective Time a
dissenting shareholder of WFS fails to perfect, or effectively withdraws or
loses, such holder's right to appraisal and of payment for such holder's shares,
Acquiror shall issue and deliver the consideration to which such holder of
shares of WFS Common Stock is entitled under this Article (without interest)
upon surrender by such holder of the certificate or certificates representing
shares of WFS Common Stock held by such holder.
3.4 Conversion of Stock of Acquisition Company. At and as of the Effective
Time of the Merger, each share of Common Stock of the Acquisition Company shall
be converted into one share of Common Stock, $.01 par value per share, of the
Surviving Corporation.
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<PAGE>
ARTICLE 4
SURRENDER OF SHARES
4.1 Surrender Procedures. Within two business days after the Effective
Time, Acquiror shall cause the exchange agent selected by Acquiror (the
"Exchange Agent") to mail to the former shareholders of WFS appropriate
transmittal materials, which shall specify that delivery shall be effected only
upon proper delivery of the certificates representing shares of WFS Common Stock
or options to purchase WFS Common Stock, that the shares of WFS Common Stock or
options to purchase WFS Common Stock have been canceled, and that the
consideration to be paid for such shares or options shall be paid only upon
delivery and surrender of such certificates or option agreements. If Acquiror
elects not to select another Person as Exchange Agent, then Acquiror shall be
deemed to be the Exchange Agent for all purposes under this Agreement. After the
Effective Time, each holder of shares of WFS Common Stock or options to purchase
WFS Common Stock issued and outstanding at the Effective Time (other than
shareholders who elect to perfect their dissenters' rights of appraisal in
accordance with Section of this Agreement) shall surrender the certificate or
certificates representing such shares or options to the Exchange Agent and shall
promptly upon surrender thereof receive in exchange therefor the consideration
provided in Section or of this Agreement, together with all undelivered
dividends or distributions in respect of such shares (without interest thereon)
pursuant to Section of this Agreement. Acquiror shall not be obligated to
deliver the consideration to which any former holder of WFS Common Stock or
options to purchase WFS Common Stock is entitled as a result of the Merger until
such holder surrenders such holder's certificate or certificates representing
the shares of WFS Common Stock or option or options to purchase WFS Common Stock
for which the consideration is to be paid as provided in Section or of this
Agreement. The certificate or certificates of WFS Common Stock (other than
certificates of shareholders who elect to perfect their dissenters' rights of
appraisal in accordance with Section of this Agreement) so surrendered shall be
duly endorsed as the Exchange Agent may require. Any other provision of this
Agreement notwithstanding, neither Acquiror, WFS, nor the Exchange Agent shall
be liable to a holder of WFS Common Stock or options to purchase WFS Common
Stock for any amounts paid or property delivered in good faith to a public
official pursuant to any applicable abandoned property Law.
4.2 Rights of Former WFS Shareholders. At the Effective Time, the stock
transfer books of WFS shall be closed as to holders of WFS Common Stock
immediately prior to the Effective Time and no transfer of WFS Common Stock by
any such holder shall thereafter be made or recognized. At the Effective Time
all shares of WFS Common Stock shall be canceled on the stock register and
transfer books of WFS. Until surrendered in accordance with the provisions of
Section of this Agreement, each certificate theretofore representing shares of
WFS Common Stock or option or options to purchase WFS Common Stock shall from
and after the Effective Time represent for all purposes only the right to
receive the consideration provided in Section or of this Agreement upon
surrender of the certificate, subject, however, to the Surviving Corporation's
obligation to pay any dividends or make any other distributions with a record
date prior to the Effective Time which have been declared or made by WFS in
respect of such shares of WFS Common
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Stock in accordance with the terms of this Agreement and which remain unpaid at
the Effective Time.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF WFS
WFS hereby represents and warrants to Acquiror as follows:
5.1 Organization, Standing, and Power. WFS is a corporation duly organized,
validly existing, and in good standing under the Laws of the State of Delaware,
and has the corporate power and authority to carry on the business of WFS as now
conducted and to own, lease, and operate WFS' Assets. WFS is duly qualified or
licensed to transact business as a foreign corporation in good standing in the
States of the United States and foreign jurisdictions where the character of
WFS' Assets or the nature or conduct of WFS' business requires WFS to be so
qualified or licensed.
5.2 Authority; No Breach By Agreement.
(a) WFS has the corporate power and authority necessary to execute,
deliver, and perform WFS' obligations under this Agreement and to consummate the
transactions contemplated hereby. The execution, delivery, and performance of
this Agreement and the consummation of the transactions contemplated herein,
including the Merger, have been duly and validly authorized by all necessary
corporate action in respect thereof on the part of WFS, subject to the approval
of this Agreement by the holders of the outstanding WFS Common Stock, which is
the only shareholder vote required for approval of this Agreement and
consummation of the Merger by WFS. Subject to such requisite shareholder
approval, this Agreement represents a legal, valid, and binding obligation of
WFS, enforceable against WFS in accordance with its terms (except in all cases
as such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, or similar Laws affecting the enforcement of
creditors' rights generally and except that the availability of the equitable
remedy of specific performance or injunctive relief is subject to the discretion
of the court before which any proceeding may be brought).
(b) Neither the execution and delivery of this Agreement by WFS, nor
the consummation by WFS of the transactions contemplated hereby, nor compliance
by WFS with any of the provisions hereof, will (i) conflict with or result in a
breach of any provision of WFS' Certificate of Incorporation or Bylaws, or (ii)
constitute or result in a Default under, or require any Consent pursuant to, or
result in the creation of any Lien on any Asset of any WFS Company under, any
Contract or Permit of any WFS Company, where such Default or Lien, or any
failure to obtain such Consent, is reasonably likely to have, individually or in
the aggregate, a Material Adverse Effect on WFS, or (iii) subject to receipt of
the requisite approvals referred to in Section of this Agreement, violate any
Law or Order applicable to any WFS Company or any of their respective material
Assets.
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(c) Other than in connection or compliance with the provisions of the
Securities Laws, applicable state corporate and securities Laws, and rules of
the NASD, and other than Consents required from Regulatory Authorities, and
other than notices to or filings with the Internal Revenue Service or the
Pension Benefit Guaranty Corporation with respect to any employee benefit plans,
or under the HSR Act, and other than Consents, filings, or notifications which,
if not obtained or made, are not reasonably likely to have, individually or in
the aggregate, a Material Adverse Effect on WFS, no notice to, filing with, or
Consent of, any public body of authority is necessary for the consummation by
WFS of the Merger and the other transactions contemplated in this Agreement.
5.3 Capital Stock.
(a) The authorized capital stock of WFS consists of (i) 5,000,000
shares of WFS Common Stock, par value $.01 per share, of which 1,657,871 shares
are issued and outstanding as of the date of this Agreement, and (ii) 1,000,000
shares of serial preferred stock, par value $.01 per share, none of which is
issued and outstanding and none of which shall be issued and outstanding at the
Effective Time. All of the issued and outstanding shares of capital stock of WFS
are duly and validly issued and outstanding and are fully paid and nonassessable
under the DGCL. None of the outstanding shares of capital stock of WFS has been
issued in violation of any Laws or any preemptive rights of the current or past
shareholders of WFS. WFS has reserved (i) 160,360 shares of WFS Common Stock for
issuance under the WFS Stock Plan pursuant to which options to purchase not more
than 137,018 shares of WFS Common Stock are outstanding, (ii) 64,146 shares for
issuance under the MRRP, pursuant to which grants of not more than 57,534 shares
of WFS Common Stock are outstanding, and (iii) 128,292 shares for issuance under
the ESOP and which have been issued to the ESOP, pursuant to which 21,235 shares
have been allocated to the accounts of participants. Prior to the Effective
Time, no additional options to purchase shall be granted under the WFS Stock
Plan, no additional grants of shares shall be made to the MRRP, and no
additional shares shall be issued to the ESOP.
(b) Except as set forth in Section of this Agreement, there are no
shares of capital stock or other equity securities of WFS outstanding and no
outstanding Rights relating to the capital stock of WFS.
5.4 WFS Subsidiaries. WFS has disclosed in Section of the WFS Disclosure
Memorandum all of the WFS Subsidiaries as of the date of this Agreement. Except
as disclosed in Section of the WFS Disclosure Memorandum, WFS or one of WFS'
Subsidiaries owns all of the issued and outstanding shares of capital stock of
each WFS Subsidiary. No equity securities of any WFS Subsidiary are or may
become required to be issued by reason of any Rights, and there are no Contracts
by which any WFS Subsidiary is bound to issue additional shares of its capital
stock or Rights or by which any WFS Company is or may be bound to transfer any
shares of the capital stock of any WFS Subsidiary. There are no Contracts
relating to the rights of any WFS Company to vote or to dispose of any shares of
the capital stock of any WFS Subsidiary. All of the shares of capital stock of
each WFS Subsidiary held by a WFS Company are fully paid and nonassessable under
the applicable corporation Law of the jurisdiction in which such
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Subsidiary is incorporated or organized and are owned by the WFS Company free
and clear of any Lien. Each WFS Subsidiary is either a savings association or
corporation and is duly organized, validly existing, and (as to corporations) in
good standing under the Laws of the jurisdiction in which it is incorporated or
organized, and has the corporate power and authority necessary for it to own,
lease, and operate its Assets and to carry on its business as now conducted.
Each WFS Subsidiary is duly qualified or licensed to transact business as a
foreign corporation in good standing in the States of the United States and
foreign jurisdictions where the character of its Assets or the nature or conduct
of its business requires it to be so qualified or licensed. Each WFS Subsidiary
that is a depository institution is an "insured institution" as defined in the
Federal Deposit Insurance Act and applicable regulations thereunder, and the
deposits in which are insured by the Savings Association Insurance Fund.
5.5 Financial Statements. WFS has included in Section of the WFS Disclosure
Memorandum copies of all WFS Financial Statements which have been prepared for
periods ended prior to the date hereof and will deliver to Acquiror copies of
all WFS Financial Statements prepared subsequent to the date hereof. The WFS
Financial Statements (as of the dates thereof and for the periods covered
thereby) (i) are or, if dated after the date of this Agreement, will be in
accordance with the books and records of the WFS Companies, which are or will
be, as the case may be, complete and correct and which have been or will have
been, as the case may be, maintained in accordance with good business practices,
and (ii) present or will present, as the case may be, fairly the consolidated
financial position of the WFS Companies as of the dates indicated and the
consolidated results of operations, changes in shareholders' equity, and cash
flows of the WFS Companies for the periods indicated, in accordance with GAAP
(subject to any exceptions as to consistency specified therein or as may be
indicated in the notes thereto or, in the case of interim financial statements,
to normal recurring year-end adjustments that are not material in amount or
effect). To the Knowledge of WFS, the WFS Companies have no material contingent
liabilities not reflected on the WFS Financial Statements other than those
disclosed in Section of the WFS Disclosure Memorandum.
5.6 Absence of Certain Changes or Events. Since June 30, 1995, except as
disclosed in the WFS Financial Statements delivered prior to the date of this
Agreement or as disclosed in Section of the WFS Disclosure Memorandum, there
have been no events, changes, or occurrences which have had, or are reasonably
likely to have, individually or in the aggregate, a Material Adverse Effect on
WFS. To the Knowledge of WFS, there are no impending termination, expiration, or
loss of Contracts, franchises, licenses, Permits, or other Assets that,
individually or in the aggregate, are reasonably likely to have a Material
Adverse Effect on WFS.
5.7 Tax Matters.
(a) All Tax returns required to be filed by or on behalf of any of the
WFS Companies have been timely filed or requests for extensions have been timely
filed, granted, and have not expired for periods ended on or before December 31,
1994, and on or before the date of the most recent fiscal year end immediately
preceding the Effective Time, and
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all returns filed are complete and accurate to the Knowledge of WFS. All Taxes
shown on filed returns have been paid. As of the date of this Agreement, there
is no audit or examination being made by any taxing authority and no notice has
been received by any WFS Company of an upcoming audit or examination by any
taxing authority. As of the date of this Agreement, there is no deficiency or
refund Litigation with respect to any Taxes, except as reserved against in the
WFS Financial Statements delivered prior to the date of this Agreement. All
Taxes and other Liabilities due with respect to completed and settled
examinations or concluded Litigation have been paid.
(b) None of the WFS Companies has executed an extension or waiver of
any statute of limitations on the assessment or collection of any Tax due
(excluding such statutes that relate to years currently under examination by the
Internal Revenue Service or other applicable taxing authorities) that is
currently in effect.
(c) Adequate provision for any Taxes due or to become due for any of
the WFS Companies for the period or periods through and including the date of
the respective WFS Financial Statements has been made and is reflected on such
WFS Financial Statements.
(d) Deferred Taxes of the WFS Companies have been provided for in
accordance with GAAP. To the Knowledge of WFS, there is no item of deferred
taxable income which will become taxable due to the consummation of the Merger
or the Related Mergers that is reasonably likely to have a Material Adverse
Effect on WFS, other than as disclosed in Section of the WFS Disclosure
Memorandum.
5.8 Assets. Except as disclosed in Section of the WFS Disclosure Memorandum
or as disclosed or reserved against in the WFS Financial Statements delivered
prior to the date of this Agreement, the WFS Companies have good and marketable
title, free and clear of all Liens, to all of their respective Assets. All
tangible properties used in the businesses of the WFS Companies are in good
condition, reasonable wear and tear excepted, and are usable in the ordinary
course of business consistent with WFS' past practices. All Assets which are
material to WFS' business on a consolidated basis, held under leases or
subleases by any of the WFS Companies, are held under valid Contracts
enforceable in accordance with their respective terms (except as enforceability
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or other Laws affecting the enforcement of creditors' rights generally and
except that the availability of the equitable remedy of specific performance or
injunctive relief is subject to the discretion of the court before which any
proceedings may be brought), and each such Contract is in full force and effect.
None of the WFS Companies has received notice from any insurance carrier that
(i) any insurance will be canceled or that coverage thereunder will be reduced
or eliminated, or (ii) premium costs with respect to any policies of insurance
will be substantially increased. The Assets of the WFS Companies include all
Assets required to operate the business of the WFS Companies as presently
conducted. Section of the WFS Disclosure Memorandum lists all of the real estate
owned by the WFS Companies, and except as disclosed therein, title to all of
such real properties are insured under an owner's
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title insurance policy issued by a title insurance company authorized to do
business in the state where the property is located.
5.9 Environmental Matters.
(a) Except as disclosed in Section of the WFS Disclosure Memorandum,
to the Knowledge of WFS, each WFS Company, its Participation Facilities, and its
Loan Properties are, and have been, in compliance with all Environmental Laws,
except for violations which are not reasonably likely to have, individually or
in the aggregate, a Material Adverse Effect on WFS.
(b) There is no Litigation pending or, to the Knowledge of WFS,
threatened before any court, governmental agency or authority, or other forum in
which any WFS Company or any of its Participation Facilities has been or, with
respect to threatened Litigation, may be named as a defendant (i) for alleged
noncompliance (including by any predecessor) with any Environmental Law or (ii)
relating to the release into the environment or presence of any Hazardous
Material, whether or not occurring at, on, under, or involving a site owned,
leased, or operated by any WFS Company or any of its Participation Facilities,
except for such Litigation pending or threatened which is disclosed in Section
of the WFS Disclosure Memorandum.
(c) There is no Litigation pending or, to the Knowledge of WFS,
threatened before any court, governmental agency or authority, or other forum in
which any WFS Company with respect to its Loan Properties has been or, with
respect to threatened Litigation, may be named as a defendant or potentially
responsible party (i) for alleged noncompliance (including by any predecessor)
with any Environmental Law or (ii) relating to the release into the environment
or presence of any Hazardous Material, whether or not occurring at, on, under,
or involving a Loan Property, except for such Litigation pending or threatened
that is disclosed in Section of the WFS Disclosure Memorandum.
(d) To the Knowledge of WFS, there is no reasonable basis for any
Litigation of a type described in subsections (b) or (c), except such as is not
reasonably likely to have, individually or in the aggregate, a Material Adverse
Effect on WFS.
(e) To the Knowledge of WFS, there have been no releases and there is
no presence of Hazardous Material in, on, under, or affecting any property
referred to above, including any Participation Facility or Loan Property, except
such as are disclosed in Section of the WFS Disclosure Memorandum.
5.10 Compliance with Laws. WFS is duly registered as a savings and loan
holding company under the HOLA. Each WFS Company has in effect all Permits
necessary for it to own, lease, or operate its material Assets and to carry on
its business as now conducted, except for those Permits the absence of which are
not reasonably likely to have, individually or in the aggregate, a Material
Adverse Effect on a WFS Company, and there has occurred no Default under any
such Permit, other than Defaults which are not reasonably likely to
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have, individually or in the aggregate, a Material Adverse Effect on a WFS
Company. None of the WFS Companies:
(a) is in violation of any Laws, Orders, or Permits applicable to its
business or employees conducting its business, except for violations which
are not reasonably likely to have, individually or in the aggregate, a
Material Adverse Effect on WFS; and
(b) since January 1, 1994, has received any notification or
communication from any agency or department of federal, state, or local
government or any Regulatory Authority or the staff thereof (i) asserting
that any WFS Company is not in compliance with any of the Laws or Orders
which such governmental authority or Regulatory Authority enforces, where
such noncompliance is reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on WFS, (ii) threatening to revoke any
Permits, the revocation of which is reasonably likely to have, individually
or in the aggregate, a Material Adverse Effect on WFS or (iii) requiring
any WFS Company to enter into or consent to the issuance of a cease and
desist order, formal agreement, directive, commitment, or memorandum of
understanding, or to adopt any Board resolution or similar undertaking,
which restricts materially the conduct of its business, or in any manner
related to its capital adequacy, its credit or reserve policies, its
management, or the payment of dividends.
5.11 Labor Relations. No WFS Company is the subject of any litigation
asserting that it or any other WFS Company has committed an unfair labor
practice (within the meaning of the National Relations Act or comparable state
law) or seeking to compel it or any other WFS Company to bargain with any labor
organization as to wages or conditions of employment, nor is there any strike or
other labor dispute involving any WFS Company, pending or threatened, nor is
there any activity involving any WFS Company's employees seeking to certify a
collective bargaining unit or engaging in any other organization activity.
5.12 Employee Benefit Plans.
(a) WFS has disclosed in Section of the WFS Disclosure Memorandum, and
has delivered or made available to Acquiror prior to the execution of this
Agreement copies in each case of, all pension, retirement, profit-sharing,
deferred compensation, stock option, employee stock ownership, severance pay,
vacation, bonus, or other incentive plan, all other written employee programs,
arrangements, or agreements, all medical, vision, dental, or other health plans,
all life insurance plans, and all other employee benefit plans or fringe benefit
plans, including "employee benefit plans" as that term is defined in Section
3(3) of ERISA, currently adopted, maintained by, sponsored in whole or in part
by, or contributed to by any WFS Company or Affiliate thereof for the benefit of
employees, retirees, dependents, spouses, directors, independent contractors, or
other beneficiaries and under which employees, retirees, dependents, spouses,
directors, independent contractors, or other beneficiaries are eligible to
participate (collectively, the "WFS Benefit Plans"). Any of the WFS Benefit
Plans which is an "employee pension
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benefit plan," as that term is defined in Section 3(2) of ERISA, is referred to
herein as a "WFS ERISA Plan."
(b) Except as disclosed in Section of the WFS Disclosure Memorandum,
all WFS Benefit Plans are in compliance with the applicable terms of ERISA, the
Internal Revenue Code, and any other applicable Laws the breach or violation of
which are reasonably likely to have, individually or in the aggregate, a
Material Adverse Effect on WFS. Each WFS ERISA Plan which is intended to be
qualified under Section 401(a) of the Internal Revenue Code has received a
favorable determination letter from the Internal Revenue Service, and WFS is not
aware of any circumstances likely to result in revocation of any such favorable
determination letter. To the Knowledge of WFS, no WFS Company has engaged in a
transaction with respect to any WFS Benefit Plan that, assuming the taxable
period of such transaction expired as of the date hereof, would subject any WFS
Company to a Tax imposed by either Section 4975 of the Internal Revenue Code or
Section 502(i) of ERISA in amounts which are reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on WFS.
(c) Within the six-year period preceding the Effective Time, no
Liability under Subtitle C or D of Title IV of ERISA has been or is expected to
be incurred by any WFS Company with respect to any ongoing, frozen, or
terminated single-employer plan or the single-employer plan of any entity which
is considered one employer with WFS under Section 4001 of ERISA or Section 414
of the Internal Revenue Code or Section 302 of ERISA (whether or not waived) (an
"ERISA Affiliate"), which Liability is reasonably likely to have a Material
Adverse Effect on WFS. No WFS Company has incurred any withdrawal Liability with
respect to a multiemployer plan under Subtitle B of Title IV of ERISA
(regardless of whether based on contributions of an ERISA Affiliate), which
Liability is reasonably likely to have a Material Adverse Effect on WFS. No
Notice of a "reportable event," within the meaning of Section 4043 of ERISA for
which the 30-day reporting requirement has not been waived, has been required to
be filed for any WFS Pension Plan or by any ERISA Affiliate within the 12-month
period ending on the date hereof.
(d) No WFS Company has any Liability for retiree health and life
benefits under any of the WFS Benefit Plans and there are no restrictions on the
rights of such WFS Company to amend or terminate any such Plan without incurring
any Liability thereunder, which Liability is reasonably likely to have a
Material Adverse Effect on WFS.
(e) Except as disclosed in Section of the WFS Disclosure Memorandum,
neither the execution and delivery of this Agreement nor the consummation of the
transactions contemplated hereby (including the Related Mergers) will (i) result
in any payment (including severance, unemployment compensation, golden
parachute, or otherwise) becoming due to any director or any employee of any WFS
Company from any WFS Company under any WFS Benefit Plan or otherwise, (ii)
increase any benefits otherwise payable under any WFS Benefit Plan, or (iii)
result in any acceleration of the time of payment or vesting of any such
benefit, where such payment, increase, or acceleration is reasonably likely to
have, individually or in the aggregate, a Material Adverse Effect on WFS.
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(f) The actuarial present values of all accrued deferred compensation
entitlements (including entitlements under any executive compensation,
supplemental retirement, or employment agreement) of employees and former
employees of any WFS Company and their respective beneficiaries, other than
entitlements accrued pursuant to funded retirement plans subject to the
provisions of Section 412 of the Internal Revenue Code or Section 302 of ERISA,
have been fully reflected on the WFS Financial Statements to the extent required
by and in accordance with GAAP.
(g) No WFS Company has any Contract or obligation of any nature to pay
or provide, and is not now paying or providing, to any former director, officer,
or employee, any periodic or other payment or other consideration or benefit,
including life or health insurance, except as disclosed in Section of the WFS
Disclosure Memorandum.
5.13 Material Contracts. Except as disclosed in Section of the WFS
Disclosure Memorandum, none of the WFS Companies, nor any of their respective
Assets, businesses, or operations, is a party to, or is bound or affected by, or
receives benefits under, (i) any employment, severance, termination, consulting,
or retirement Contract, (ii) any Contract relating to the borrowing of money by
any WFS Company or the guarantee by any WFS Company of any such obligation
(other than Contracts evidencing deposit liabilities, purchases of federal
funds, fully-secured repurchase agreements, and Federal Home Loan Bank advances
of depository institution Subsidiaries, trade payables, and Contracts relating
to borrowings or guarantees made in the ordinary course of business), or any
Contract relating to any loans or indebtedness of any WFS Company (including any
loan from the Federal Home Loan Bank) which will be accelerated or could at the
option of the lender or creditor of such indebtedness be accelerated, either
before or after the consummation of the transactions contemplated by this
Agreement (including the Related Mergers), by virtue of this Agreement or such
consummation, (iii) any Contract, accepted order, or other commitment for the
purchase or sale of materials, services, or supplies having a total remaining
contract price in excess of $10,000, (iv) any contract containing any
restrictions on any party thereto competing with any of the WFS Companies or any
of the WFS Companies competing with any Person or otherwise restricting any of
the WFS Companies in the conduct of their business, (v) any other Contract
which, individually or in the aggregate, is reasonably likely to have a Material
Adverse Effect on any WFS Company or which was entered into other than in the
ordinary and usual course of business, and (vi) any other Contract or amendment
thereto that would be required to be filed as an exhibit to a Form 10-K filed by
WFS with the SEC as of the date of this Agreement that has not been filed as an
exhibit to WFS' Form 10-K filed for the fiscal year ended September 30, 1994, or
in another SEC Document and identified to Acquiror (together with all Contracts
referred to in Sections and of this Agreement, the "WFS Contracts"). With
respect to each WFS Contract and except as disclosed in Section of the WFS
Disclosure Memorandum: (i) the Contract is in full force and effect; (ii) no WFS
Company is in Default thereunder, other than Defaults which are not reasonably
likely to have, individually or in the aggregate, a Material Adverse Effect on
WFS; (iii) no WFS Company has repudiated or waived any material provision of any
such Contract; and (iv) no other party to any such Contract is, to the Knowledge
of WFS, in Default in any respect, other than Defaults which are not reasonably
likely to have, individually or in the aggregate, a Material
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Adverse Effect on WFS, or has repudiated or waived any material provision
thereunder. All of the indebtedness of any WFS Company for money borrowed (other
than Federal Home Loan Bank advances) is prepayable at any time by such WFS
Company without penalty or premium.
5.14 Legal Proceedings. Except as disclosed in Section of the WFS
Disclosure Memorandum, there is no Litigation instituted, pending, or, to the
Knowledge of WFS, threatened (or unasserted but considered probable of
assertion) against any WFS Company, or against any Asset, interest, or right of
any of them, that is reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on WFS, nor are there any Orders of any
Regulatory Authorities, other than governmental authorities, or arbitrators
outstanding against any WFS Company that are reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on WFS.
5.15 Reports. Since January 1, 1992, or the date of organization if later,
each WFS Company has timely filed all reports and statements, together with any
amendments required to be made with respect thereto, that it was required to
file with (i) the SEC, including, but not limited to, Forms 10-K, Forms 10-Q,
Forms 8-K, and proxy statements, (ii) other Regulatory Authorities, and (iii)
any applicable state securities or banking authorities (except, in the case of
state securities authorities, failures to file which are not reasonably likely
to have, individually or in the aggregate, a Material Adverse Effect on WFS). As
of their respective dates, each of such reports and documents, including the
financial statements, exhibits, and schedules thereto, complied in all material
respects with all applicable Laws. As of its respective date, each such report
and document did not, in all material respects, contain any untrue statement of
a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements made therein, in light of the circumstances
under which they were made, not misleading.
5.16 Statements True and Correct. None of the information supplied or to be
supplied by any WFS Company or any Affiliate thereof for inclusion in the Proxy
Statement to be mailed to WFS' shareholders in connection with the Shareholders'
Meeting, and any other documents to be filed by a WFS Company or any Affiliate
thereof with the SEC or any other Regulatory Authority in connection with the
transactions contemplated hereby, will, at the respective time such documents
are filed, and with respect to the Proxy Statement, when first mailed to the
shareholders of WFS, be false or misleading with respect to any material fact,
or omit to state any material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading, or, in
the case of the Proxy Statement or any amendment thereof or supplement thereto,
at the time of the Shareholders' Meeting, be false or misleading with respect to
any material fact, or omit to state any material fact necessary to correct any
statement in any earlier communication with respect to the solicitation of any
proxy for the Shareholders' Meeting. All documents that any WFS Company or any
Affiliate thereof is responsible for filing with any Regulatory Authority in
connection with the transactions contemplated hereby will comply as to form in
all material respects with the provisions of applicable Law. The Proxy Statement
and any amendment thereof or supplement thereto to be mailed to shareholders,
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and any document to be filed with any Regulatory Authority shall prior to such
mailing or filing be submitted to and approved by Acquiror.
5.17 Regulatory Matters. No WFS Company has taken any action or has any
Knowledge of any fact or circumstance that is reasonably likely to materially
impede or delay receipt of any Consents of Regulatory Authorities referred to in
Section of this Agreement or result in the imposition of a condition or
restriction of the type referred to in the last sentence of such Section.
5.18 State Takeover Laws. Each WFS Company has taken all necessary action
to exempt the transactions contemplated by this Agreement from any applicable
state takeover Law, including Section 203 of the DGCL.
5.19 Charter Provisions. Each WFS Company has taken all action so that the
entering into of this Agreement and the consummation of the Merger and the other
transactions contemplated by this Agreement (including the Related Mergers) do
not and will not result in the grant of any Rights to any Person under the
Certificate of Incorporation, Bylaws, or other governing instruments of any WFS
Company or restrict or impair the ability of Acquiror or any of its Subsidiaries
or Affiliates to vote, or otherwise to exercise the rights of a shareholder with
respect to, shares of any WFS Company that may be directly or indirectly
acquired or controlled by it.
5.20 Insurance. Section of the WFS Disclosure Memorandum contains a
complete list of all insurance policies presently in effect. All the insurance
policies and bonds currently owned by any WFS Company are in full force and
effect.
5.21 Notes and Leases. To the Knowledge of WFS, all promissory notes and
leases owned by Wichita Federal at the Effective Time will represent bona fide
indebtedness or obligations to Wichita Federal and are and will be enforceable
in accordance with their terms without valid set-offs or counterclaims, except
as limited by applicable bankruptcy, insolvency, reorganization, moratorium, or
similar Laws and equitable principles affecting creditors' rights generally;
provided, however, no representation or warranty is made in this Agreement as to
the collectibility of such notes and leases.
5.22 Personal Property. Each of the WFS Companies has good and marketable
title to all of the machinery, equipment, materials, supplies, and other
property of every kind, tangible or intangible, contained in its offices and
other Participation Facilities or shown as assets in its records and books of
account, free and clear of all Liens. All leases of personal property to which
any of the WFS Companies is a party as lessee and which are material to its
operations are valid and enforceable in accordance with their terms, and there
has been no Default by any party thereto that is reasonably likely to have,
either individually or in the aggregate, a Material Adverse Effect on WFS. All
of such personal property owned or leased by a WFS Company is in good operating
condition, normal wear and tear excepted.
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ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF ACQUIROR
Acquiror hereby represents and warrants to WFS as follows:
6.1 Organization and Standing. Acquiror is a corporation duly organized,
validly existing, and in good standing under the Laws of the State of Kansas and
has the corporate power and authority to carry on its business as now conducted
and to own, lease, and operate its material Assets. The Acquisition Company will
be a duly organized and validly existing Kansas corporation and a wholly-owned
Subsidiary of Acquiror in good standing under the Laws of the State of Kansas at
the Effective Time.
6.2 Authority; No Breach by Agreement.
(a) Acquiror has the corporate power and authority necessary to
execute, deliver, and perform Acquiror's obligations under this Agreement and to
consummate the transactions contemplated hereby. The execution, delivery, and
performance of this Agreement and the consummation of the transactions
contemplated herein, including the Merger, have been duly and validly authorized
by all necessary corporate action in respect thereof on the part of Acquiror.
This Agreement represents a legal, valid, and binding obligation of Acquiror,
enforceable against Acquiror in accordance with its terms (except in all cases
as such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, or similar Laws affecting the enforcement of
creditors' rights generally and except that the availability of the equitable
remedy of specific performance or injunctive relief is subject to the discretion
of the court before which any proceeding may be brought).
(b) Neither the execution and delivery of this Agreement by Acquiror,
nor the consummation by Acquiror of the transactions contemplated hereby, nor
compliance by Acquiror with any of the provisions hereof, will (i) conflict with
or result in a breach of any provision of Acquiror's Articles of Incorporation
or Bylaws, or (ii) constitute or result in a Default under, or require any
Consent pursuant to, or result in the creation of any Lien on any Asset of any
Acquiror Company under, any Contract or Permit of any Acquiror Company, where
such Default or Lien, or any failure to obtain such Consent, is reasonably
likely to have, individually or in the aggregate, a Material Adverse Effect on
Acquiror, or (iii) subject to receipt of the requisite approvals referred to in
Section of this Agreement, violate any Law or Order applicable to any Acquiror
Company or any of their respective material Assets.
(c) Other than Consents required from Regulatory Authorities, and
other than notices to or filings with the Internal Revenue Service or the
Pension Benefit Guaranty Corporation with respect to any employee benefit plans,
or under the HSR Act, and other than Consents, filings, or notifications which,
if not obtained or made, are not reasonably likely to have, individually or in
the aggregate, a Material Adverse Effect on Acquiror, no notice to, filing with,
or Consent of, any public body or authority is necessary for the
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consummation by any Acquiror Company of the Merger and the other transactions
contemplated in this Agreement.
6.3 Financial Statements. Acquiror has disclosed in Section of the Acquiror
Disclosure Memorandum all Acquiror Financial Statements which have been prepared
for periods ended prior to the date hereof and will deliver to WFS copies of all
Acquiror Financial Statements prepared subsequent to the date hereof. The
Acquiror Financial Statements (as of the dates thereof and for the periods
covered thereby) (i) are or, if dated after the date of this Agreement, will be
in accordance with the books and records of the Acquiror Companies, which are or
will be, as the case may be, complete and correct and which have been or will
have been, as the case may be, maintained in accordance with good business
practices, and (ii) present or will present, as the case may be, fairly the
consolidated financial position of the Acquiror Companies as of the dates
indicated and the consolidated results of operations, changes in shareholders'
equity, and cash flows of the Acquiror Companies for the periods indicated, in
accordance with GAAP (subject to exceptions as to consistency specified therein
or as may be indicated in the notes thereto or, in the case of interim financial
statements, to normal recurring year-end adjustments that are not material in
amount or effect).
6.4 Absence of Certain Changes or Events. Since December 31, 1994, except
as disclosed in the Acquiror Financial Statements delivered prior to the date of
this Agreement or as disclosed in Section of the Acquiror Disclosure Memorandum,
there have been no events, changes, or occurrences which have had, or are
reasonably likely to have, individually or in the aggregate, a Material Adverse
Effect on Acquiror. To the Knowledge of Acquiror, there are no impending
termination, expiration, or loss of Contracts, franchises, licenses, Permits, or
other Assets that, individually or in the aggregate, are reasonably likely to
have a Material Adverse Effect on Acquiror.
6.5 Compliance with Laws. EFC is duly registered as a bank holding company
under the BHC Act. Each Acquiror Company has in effect all permits necessary for
it to own, lease, or operate its material Assets and to carry on its business as
now conducted, except for those Permits the absence of which are not reasonably
likely to have, individually or in the aggregate, a Material Adverse Effect on
Acquiror, and there has occurred no Default under any such Permit, other than
Defaults which are not reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on Acquiror. Except as disclosed in Section
of the Acquiror Disclosure Memorandum, no Acquiror Company:
(a) is in violation of any Laws, Orders, or Permits applicable to its
business or employees conducting its business, except for violations which
are not reasonably likely to have, individually or in the aggregate, a
Material Adverse Effect on Acquiror; and
(b) since January 1, 1994, has received any notification or
communication from any agency or department of federal, state, or local
government or any Regulatory Authority or the staff thereof (i) asserting
that any Acquiror Company is not in compliance with any of the Laws or
Orders which such governmental authority
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or Regulatory Authority enforces, where such noncompliance is reasonably
likely to have, individually or in the aggregate, a Material Adverse Effect
on Acquiror, (ii) threatening to revoke any Permits, the revocation of
which is reasonably likely to have, individually or in the aggregate, a
Material Adverse Effect on Acquiror, or (iii) requiring any Acquiror
Company to enter into or consent to the issuance of a cease and desist
order, formal agreement, directive, commitment, or memorandum of
understanding, or to adopt any Board resolution or similar undertaking,
which restricts materially the conduct of its business, or in any manner
relates to its capital adequacy, its credit or reserve policies, its
management, or the payment of dividends.
6.6 Legal Proceedings. There is no Litigation instituted or pending, or, to
the Knowledge of Acquiror, threatened (or unasserted but considered probable of
assertion and which if asserted would have at least a reasonable probability of
an unfavorable outcome) against any Acquiror Company, or against any Asset,
interest, or right of any of them, that is reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on Acquiror, nor are
there any Orders of any Regulatory Authorities, other governmental authorities,
or arbitrators outstanding against any Acquiror Company, that are reasonably
likely to have, individually or in the aggregate, a Material Adverse Effect on
Acquiror.
6.7 Availability of Funds. As of the date of this Agreement and at the
Effective Time, Acquiror has, and will have, available sufficient liquid funds
to enable it to satisfy its payment obligations pursuant to this Agreement.
6.8 Statements True and Correct. None of the information supplied or to be
supplied by any Acquiror Company or any Affiliate thereof for inclusion in the
Proxy Statement to be mailed to WFS' shareholders in connection with the
Shareholders' Meeting, and any other documents to be filed by any Acquiror
Company or any Affiliate thereof with any Regulatory Authority in connection
with the transactions contemplated hereby, will, at the respective time such
documents are filed, and with respect to the Proxy Statement, when first mailed
to the shareholders of WFS, be false or misleading with respect to any material
fact, or omit to state any material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, or, in the case of the Proxy Statement or any amendment thereof or
supplement thereto, at the time of the Shareholders' Meeting, be false or
misleading with respect to any material fact, or omit to state any material fact
necessary to correct any statement in any earlier communication with respect to
the solicitation of any proxy for the Shareholders' Meeting. All documents that
any Acquiror Company or any Affiliate thereof is responsible for filing with any
Regulatory Authority in connection with the transactions contemplated hereby
will comply as to form in all material respects with the provisions of
applicable Law.
6.9 Regulatory Matters. No Acquiror Company or any Affiliate thereof has
taken any action or has any Knowledge of any fact or circumstance that is
reasonably likely to materially impede or delay receipt of any Consents of
Regulatory Authorities referred to in Section of this Agreement or result in the
imposition of a condition or restriction of the type referred to in the last
sentence of such Section. Upon consummation of the Merger, Acquiror will
continue to satisfy all regulatory requirements with respect to
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capital adequacy and will continue to maintain regulatory capital ratios at a
level sufficient for Acquiror (or Acquiror's depository institution in the case
Acquiror is EFC) to qualify as a "well-capitalized" institution under
regulations promulgated pursuant to the Federal Deposit Insurance Corporation
Act.
ARTICLE 7
CONDUCT OF BUSINESS PENDING CONSUMMATION
7.1 Affirmative Covenants of WFS. Unless the prior written consent of
Acquiror shall have been obtained, and except as otherwise expressly
contemplated herein, WFS shall and shall cause each of its Subsidiaries to (i)
operate its business only in the usual, regular, and ordinary course and in
accordance with past practices; (ii) preserve intact its business organization
and Assets and maintain its rights and franchises; (iii) make reasonable efforts
to keep available to Acquiror Companies the services of the present officers and
employees of WFS Companies; (iv) make reasonable efforts to preserve the good
will of customers and others having business relations with WFS Companies; (v)
maintain the properties of WFS Companies in customary repair, working order, and
condition (reasonable wear and tear excepted); (vi) keep in force at not less
than their present limits all existing policies of insurance under which WFS
Companies are the insured; and (vii) take no action which would (a) adversely
affect the ability of any Party to obtain any Consents required for the
transactions contemplated hereby (including the Related Mergers) without
imposition of a condition or restriction of the type referred to in the last
sentence of Section of this Agreement, or (b) adversely affect the ability of
any Party to perform its covenants and agreements under this Agreement.
7.2 Negative Covenants of WFS. From the date of this Agreement until the
earlier of the Effective Time or the termination of this Agreement, WFS
covenants and agrees that it will not do or agree or commit to do, or permit any
of its Subsidiaries to do or agree to commit to do, any of the following without
the prior written consent of the chief executive officer, president, or chief
financial officer of Acquiror, or Emprise Bank, Wichita, if it is not the
Acquiror at that time, which consent shall not be unreasonably withheld:
(a) amend the Certificate of Incorporation, Bylaws, or other governing
instruments of any WFS Company; or
(b) incur any additional debt obligation or other obligation for
borrowed money (other than indebtedness of a WFS Company to another WFS
Company) in excess of an aggregate of $200,000 (for the WFS Companies on a
consolidated basis) except in the ordinary course of the business of WFS or
its Subsidiaries consistent with past practices (which exception shall
include, for WFS Subsidiaries that are depository institutions, creation of
deposit liabilities, purchases of federal funds, advances from the Federal
Reserve Bank or Federal Home Loan Bank, and entry into repurchase
agreements fully secured by U. S. government or agency securities), or
impose, or suffer the imposition of, on any Asset of any WFS Company any
Lien or permit any such Lien to exist (other than in connection with
deposits, repurchase
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agreements, Federal Home Loan Bank advances, bankers acceptances, "treasury
tax and loan" accounts established in the ordinary course of business, the
satisfaction of legal requirements in the exercise of trust powers, and
Liens in effect as of the date hereof that are disclosed in Section of the
WFS Disclosure Memorandum), or, whether or not in the ordinary course of
business of WFS or its Subsidiaries consistent with past practices, (i)
incur any debt or other obligation for borrowed money having a maturity of
more than two years, (ii) enter into any loan commitment in excess of
$200,000 other than residential mortgages intended for secondary market
sale, or (iii) enter into a commitment to loan to or purchase a loan of a
borrower who does not reside or do business in the State of Kansas or
commit to enter into or purchase a loan which is secured by property
located outside the State of Kansas; or
(c) repurchase, redeem, or otherwise acquire or exchange (other than
exchanges in the ordinary course under WFS Benefit Plans), directly or
indirectly, any shares, or any securities convertible into any shares, of
the capital stock of any WFS Company, or declare or pay any dividend or
make any other distribution in respect of WFS' capital stock, provided that
WFS may (to the extent legally and contractually permitted to do so), but
shall not be obligated to, declare and pay regular quarterly cash dividends
on the shares of WFS Common Stock at a rate not in excess of $.10 per share
with usual and regular record and payment dates in accordance with past
practice disclosed in Section of the WFS Disclosure Memorandum and such
dates may not be changed without the prior written consent of Acquiror;
provided, further, that, with respect to the calendar quarter in which the
Effective Time occurs: (i) no dividend may be paid by WFS if the Effective
Time occurs on or before the tenth day of such quarter; (ii) a dividend
equal to one-third (1/3) of the regular quarterly dividend that could
otherwise be permissibly paid during such quarter pursuant to this Section
may be paid by WFS if the Effective Time occurs after the tenth day of such
quarter but on or before the 40th day of such quarter; (iii) a dividend
equal to two-thirds (2/3) of the regular quarterly dividend that would
otherwise be permissibly paid during such quarter pursuant to this Section
may be paid by WFS if the Effective Time occurs after the 40th day of such
quarter, but on or before the 70th day of such quarter; and (iv) the
dividend that could otherwise be permissibly paid during such quarter
pursuant to this Section may be paid by WFS if the Effective Time occurs
after the 70th day of such quarter; or
(d) except pursuant to the exercise of stock options outstanding as of
the date hereof under the WFS Stock Plan and pursuant to the terms thereof
in existence on the date hereof or the vesting of shares of WFS Common
Stock under the MRRP or the ESOP and pursuant to the terms thereof in
existence on the date hereof, issue, sell, pledge, encumber, authorize the
issuance of, enter into any Contract to issue, sell, pledge, encumber, or
authorize the issuance of, or otherwise permit to become outstanding, any
additional shares of WFS Common Stock or any other capital stock of any WFS
Company, or any stock appreciation rights, or any option, warrant,
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conversion, or other right to acquire any such stock, or any security
convertible into any such stock; or
(e) adjust, split, combine, or reclassify any capital stock of any WFS
Company or issue or authorize the issuance of any other securities in
respect of or in substitution for shares of WFS Common Stock, or sell,
lease, mortgage, or otherwise dispose of or otherwise encumber any shares
of capital stock of any WFS Subsidiary (unless any such shares of stock are
sold or otherwise transferred to another WFS Company) or any Asset having a
book value in excess of $100,000 other than in the ordinary course of
business for reasonable and adequate consideration; or
(f) except for purchases of U. S. Treasury securities or U. S.
Government agency securities, which in either case have maturities of three
years or less, purchase any securities, including mortgage-backed
securities, or make any material investment, either by purchase of stock
(other than capital stock of the Federal Home Loan Bank of Topeka relative
to the acquisition of any new advances) or securities, contributions to
capital, Asset transfers, or purchase of any Assets, in any Person other
than a wholly-owned WFS Subsidiary, or otherwise acquire direct or indirect
control over any Person, other than in connection with (i) foreclosures in
the ordinary course of business, or (ii) acquisitions of control by a
depository institution Subsidiary in its fiduciary capacity; or
(g) grant any increase in compensation or benefits to the employees or
officers of any WFS Company, except in accordance with past practices
disclosed in Section of the WFS Disclosure Memorandum or as required by
Law; pay any severance or termination pay or any bonus other than pursuant
to written policies or written Contracts in effect on the date of this
Agreement and disclosed in Section of the WFS Disclosure Memorandum; enter
into or amend any severance agreements with officers of any WFS Company;
grant any material increase in fees or other increases in compensation or
other benefits to directors of any WFS Company except in accordance with
past practice disclosed in Section of the WFS Disclosure Memorandum; or
voluntarily accelerate the vesting of any stock options or other
stock-based compensation or employee benefits; or
(h) enter into or amend any employment Contract between any WFS
Company and any Person (unless such amendment is required by Law); or
(i) except as disclosed in Section of the WFS Disclosure Memorandum,
adopt any new employee benefit plan of any WFS Company or make any material
change in or to any existing employee benefit plans of any WFS Company
other than any such change that is required by Law or that, in the opinion
of counsel, is necessary or advisable to maintain the tax qualified status
of any such plan; or
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(j) except as disclosed in Section of the WFS Disclosure Memorandum,
make any significant change in any Tax or accounting methods or systems of
internal accounting controls, except as may be appropriate to conform to
changes in Tax Laws or regulatory accounting requirements or GAAP; or
(k) commence any Litigation other than in accordance with past
practice, settle any Litigation involving any Liability of any WFS Company
for money damages of $50,000 or more or any restrictions upon the
operations of any WFS Company; or
(l) modify, amend, or terminate any material Contract (including any
loan Contract with an unpaid balance exceeding $100,000) or waive, release,
compromise, or assign any material rights or claims.
7.3 Covenants of Acquiror. From the date of this Agreement until the
earlier of the Effective Time or the termination of this Agreement, Acquiror
covenants and agrees that it shall take no action which would (i) materially
adversely affect the ability of any Party to obtain any Consents required for
the transactions contemplated hereby without imposition of a condition or
restriction of the type referred to in the last sentence of Section of this
Agreement, or (ii) materially adversely affect the ability of any Party to
perform its covenants and agreements under this Agreement. Acquiror further
agrees that from the date of this Agreement until the earlier of the Effective
Time or the termination of this Agreement, without the prior written approval of
WFS, Acquiror shall not agree to make any acquisition of an unaffiliated
financial institution which could reasonably be expected to jeopardize or delay
beyond April 1, 1996, any Consent of a Regulatory Authority required for the
transactions contemplated hereby.
7.4 Adverse Changes in Condition. Each Party agrees to give written notice
promptly to the other Party upon becoming aware of the occurrence or impending
occurrence of any event or circumstance relating to it or any of its
Subsidiaries or Affiliates which (i) is reasonably likely to have, individually
or in the aggregate, a Material Adverse Effect on it or (ii) would cause or
constitute a material breach of any of its representations, warranties, or
covenants contained herein, and to use its reasonable efforts to prevent or
promptly to remedy the same.
7.5 Reports. Each Party and its Subsidiaries shall file all reports
required to be filed by it with Regulatory Authorities between the date of this
Agreement and the Effective Time and shall deliver to the other Party copies of
all such reports promptly after the same are filed. If financial statements are
contained in any such reports, such financial statements will fairly present the
consolidated financial position of the entity filing such statements as of the
dates indicated and the consolidated results of operations, changes in
shareholders' equity, and cash flows for the periods then ended in accordance
with GAAP (subject in the case of interim financial statements to normal
recurring year-end adjustments that are not material). As of their respective
dates, such reports will comply in all material respects with the Securities
Laws and will not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they were
made, not
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misleading. Any financial statements contained in any other reports to another
Regulatory Authority shall be prepared in accordance with Laws applicable to
such reports.
7.6 Treatment of Stock Options. WFS shall use its best efforts to obtain an
agreement from each holder of an employee stock option under the WFS Stock Plan
to the effect that while such holder is an employee of WFS such holder will not
exercise the option prior to the Effective Time or termination of this
Agreement.
ARTICLE 8
ADDITIONAL AGREEMENTS
8.1 Proxy Statement; Shareholder Approval. After execution of this
Agreement, WFS shall promptly call a Shareholders' Meeting, to be held as soon
as reasonably practicable for the purpose of voting upon approval of this
Agreement and such other related matters as it deems appropriate. In connection
with the Shareholders' Meeting, (i) WFS shall prepare and file with the SEC a
Proxy Statement and mail such Proxy Statement to WFS' shareholders, (ii) the
Parties shall furnish to each other all information concerning them that they
may reasonably request in connection with such Proxy Statement, (iii) the Board
of Directors of WFS shall recommend (subject to compliance with their fiduciary
duties as advised by counsel) to its shareholders the approval of this
Agreement, and (iv) the Board of Directors and officers of WFS shall (subject to
compliance with their fiduciary duties as advised by counsel) use their
reasonable efforts to obtain such shareholders' approval.
8.2 Applications. Acquiror shall with due diligence prepare and file, and
WFS shall cooperate in the preparation and, where appropriate, filing of,
applications with all Regulatory Authorities having jurisdiction over the
transactions contemplated by this Agreement, including the Related Mergers,
seeking the requisite Consents necessary to consummate the transactions
contemplated by this Agreement, including the Related Mergers. Acquiror shall
provide WFS the opportunity to review such applications prior to the filing of
such applications with the Regulatory Authorities and shall regularly advise WFS
as to the progress in obtaining the requisite Consents.
8.3 Filings with State Offices. Upon the terms and subject to the
conditions of this Agreement, Acquiror shall execute and file the Certificate of
Merger with the Secretary of State of the State of Delaware and the Certificate
of Merger with the Secretary of State of the State of Kansas in connection with
the Closing.
8.4 Agreement as to Efforts to Consummate. Subject to the terms and
conditions of this Agreement, each Party agrees to use, and to cause its
Subsidiaries to use, its reasonable efforts to take, or cause to be taken, all
actions, and to do, or cause to be done, all things necessary, proper, or
advisable under applicable Laws to consummate and make effective, as soon as
practicable after the date of this Agreement, the transactions contemplated by
this Agreement (including the Related Mergers), including using its reasonable
efforts to lift or rescind any Order adversely affecting its ability to
consummate
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the transactions contemplated herein (including the Related Mergers) and to
cause to be satisfied the conditions referred to in Article of this Agreement;
provided, that nothing herein shall preclude either Party from exercising its
rights under this Agreement. Each Party shall use, and shall cause each of its
Subsidiaries to use, its reasonable efforts to obtain all Consents necessary or
desirable for the consummation of the transactions contemplated by this
Agreement, including the Related Mergers.
8.5 Investigation and Confidentiality.
(a) Prior to the Effective Time, WFS shall keep Acquiror advised of
all material developments relevant to its business and the business of its
Subsidiaries and to consummation of the Merger and shall permit Acquiror to make
or cause to be made such investigation of the business and properties of it and
its Subsidiaries, including, at the expense of Acquiror, environmental audits,
and of their respective financial and legal conditions as Acquiror reasonably
requests, provided that such investigation shall be reasonably related to the
transactions contemplated hereby and shall not interfere unnecessarily with
normal operations. No investigation by Acquiror shall affect the representations
and warranties of WFS.
(b) In addition to Acquiror's obligations under the Confidentiality
Agreement, Acquiror shall, and shall cause its advisers and agents to, maintain
the confidentiality of all confidential information furnished to it by WFS
Companies concerning WFS Companies' businesses, operations, and financial
positions and shall not use such information for any purpose except in
furtherance of the transactions contemplated by this Agreement. If this
Agreement is terminated prior to the Effective Time, Acquiror shall promptly
return or certify the destruction of all documents and copies thereof, and all
work papers containing confidential information received from WFS Companies.
(c) Each Party agrees to give the other Party notice as soon as
practicable after any determination by it of any fact or occurrence relating to
the other Party which it has discovered through the course of its investigation
and which represents, or is reasonably likely to represent, either a material
breach of any representation, warranty, covenant, or agreement of the other
Party or which has had or reasonably may have a Material Adverse Effect on the
other Party.
8.6 Press Releases. Prior to the Effective Time, WFS and Acquiror shall
consult with each other as to the form and substance of any press release or
other public disclosure materially related to this Agreement or any other
transaction contemplated hereby; provided, that nothing in this Section shall be
deemed to prohibit any party from making any disclosure which its counsel deems
necessary or advisable in order to satisfy such Party's disclosure obligations
imposed by Law.
8.7 Certain Actions.
(a) Except with respect to this Agreement and the transactions
contemplated hereby, no WFS Company nor any Affiliate thereof nor any
Representative
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retained by any WFS Company shall directly or indirectly solicit any Acquisition
Proposal by any Person. No WFS Company or any Affiliate or Representative
thereof shall furnish any non-public information that it is not legally
obligated to furnish, negotiate with respect to, or enter into any Contract with
respect to, any Acquisition Proposal, but WFS may communicate information about
such an Acquisition Proposal received at or before the Shareholders' Meeting to
its shareholders if and to the extent that it is required to do so in order to
comply with its legal obligations. WFS shall promptly notify Acquiror orally and
in writing in the event that it receives any inquiry or proposal relating to any
such transaction, whether received before or after the Shareholders' Meeting.
(b) Notwithstanding the foregoing, the WFS Companies, Affiliates, and
Representatives are not obligated to take any of the actions set forth in
subsection (a), or refrain from taking any of the actions set forth in
subsection (a), if the Board of Directors of WFS, after consultation with WFS'
legal counsel, determines in good faith that such actions or inactions
(including the notice required by the last sentence of subsection (a)) would be
inconsistent with its fiduciary obligations. If, in the event of an Acquisition
Proposal, the Board of Directors of WFS, after consultation with WFS' legal
counsel, determines that it is in the best interests of WFS and its shareholders
to take, or seek to take, one or more actions in response to such Acquisition
Proposal, then no such action taken by WFS in response thereto, including the
termination of this Agreement, shall be deemed to be, or to result in, a breach
of any of the representations, warranties, covenants, agreements, or
restrictions of WFS contained in this Agreement; provided, however, WFS shall
have no right to take any such actions, including a termination of this
Agreement, in response to any Acquisition Proposal or inquiries or discussions
pertaining to a possible Acquisition Proposal made or received after the
approval of this Agreement by the shareholders of WFS; and provided further,
that any such action taken by WFS shall be subject to the provisions of Section
.
8.8 State Takeover Laws. Each WFS Company shall take all necessary steps to
exempt the transactions contemplated by this Agreement (including the Related
Mergers) from, or if necessary challenge the validity or applicability of, any
applicable state takeover Law, including Section 203 of the DGCL.
8.9 Charter Provisions. Each WFS Company shall take all necessary action to
ensure that the entering into of this Agreement and the consummation of the
Merger and the other transactions contemplated hereby, including the Related
Mergers, do not and will not result in the grant of any Rights to any Person
under the Certificate of Incorporation, Bylaws, or other governing instruments
of any WFS Company or restrict or impair the ability of Acquiror or any of its
Subsidiaries or Affiliates to vote, or otherwise to exercise the rights of a
shareholder with respect to, shares of any WFS Company that may be directly or
indirectly acquired or controlled by it.
8.10 Employee Benefits and Contracts. Following the Effective Time,
Acquiror shall provide generally to officers and employees of the WFS Companies
who become employees of Acquiror employee benefits under employee benefit plans
(other than stock option or other plans involving the potential issuance of
Acquiror Common Stock), on terms
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and conditions which when taken as a whole are substantially similar to those
currently provided by the Acquiror Companies to their similarly situated
officers and employees; provided that, other than the employees of the WFS
Companies who are parties to the employment or severance Contracts disclosed in
Section of the WFS Disclosure Memorandum, any employee of WFS who is not offered
employment by Acquiror at the Effective Time or whose employment is terminated
after the Effective Time as a result of the Merger shall receive the severance
benefits in accordance with the letter dated October 31, 1995, of Emprise Bank,
Wichita, to the Board of Directors of WFS ("Severance Procedure Letter"). For
purposes of participation and vesting (but not for benefit accrual) under such
employee benefit plans, the service of the employees of the WFS Companies prior
to the Effective Time shall be treated as service with an Acquiror Company
participating in such employee benefit plans to the extent reasonably and
legally practicable. Acquiror also shall cause the Surviving Corporation and its
Subsidiaries to honor in accordance with their terms all employment, severance,
consulting, and other compensation Contracts disclosed in Section of the WFS
Disclosure Memorandum to Acquiror between any WFS Company and any current or
former director, officer, or employee thereof, and all provisions for vested
benefits or other vested amounts earned or accrued through the Effective Time
under the WFS Benefit Plans. Each director of WFS who is not retained as a
director of the Surviving Corporation shall be paid a bonus in consideration of
past services in the amount of $12,000, which is the amount of the present
directors' fees for one year of regular monthly meetings.
8.11 Indemnification.
(a) Acquiror shall, and shall cause the Surviving Corporation to,
indemnify, defend, and hold harmless the present and former directors, officers,
employees, and agents of the WFS Companies (each, an "Indemnified Party")
against all Liabilities arising out of actions or omissions occurring at or
prior to the Effective Time (including the transactions contemplated by this
Agreement, including the Related Mergers) to the full extent permitted by WFS'
Certificate of Incorporation and Bylaws as in effect on the date hereof,
including provisions relating to advances of expenses incurred in the defense of
any Litigation. Without limiting the foregoing, in any case in which approval by
the Surviving Corporation is required to effectuate any indemnification,
Acquiror shall cause the Surviving Corporation to direct, at the election of the
Indemnified Party, that the determination of any such approval shall be made by
independent counsel mutually agreed upon between Acquiror and the Indemnified
Party.
(b) Acquiror shall and shall cause the Surviving Corporation to use
its reasonable efforts (and WFS shall cooperate prior to the Effective Time in
these efforts) to maintain in effect for a period of three years after the
Effective Time WFS' existing directors' and officers' liability insurance policy
(provided that Acquiror may substitute therefor (i) policies of at least the
same coverage and amounts containing terms and conditions which are
substantially no less advantageous or (ii) with the consent of WFS given prior
to the Effective Time, any other policy) with respect to claims arising from
facts or events which occurred prior to the Effective Time and covering persons
who are currently covered by such insurance.
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(c) Acquiror shall not be liable for any settlement effected without
its prior written consent; and the Surviving Corporation shall not have any
obligation hereunder to any Indemnified Party when and if a court of competent
jurisdiction shall determine, and such determination shall have become final,
that the indemnification of such Indemnified Party in the manner contemplated
hereby is prohibited by applicable Law.
(d) If the Surviving Corporation or any of its successors or assigns
shall consolidate with or merge into any other Person and shall not be the
continuing or surviving Person of such consolidation or merger or shall transfer
all or substantially all of its assets to any Person, then and in each case,
proper provisions shall be made so that the successors and assigns of the
Surviving Corporation shall assume the obligations set forth in this Section .
8.12 Availability of Funds. Prior to the Effective Time, Acquiror shall
have deposited with the Exchange Agent sufficient funds to enable it to satisfy
its payment obligations pursuant to this Agreement.
8.13 Dealings with the ESOP.
(a) The Parties agree (i) that, subject to satisfying the provisions
of Section of this Agreement, the loan by WFS to the ESOP under documents dated
June 3, 1994 (the "Loan") shall be paid off by the ESOP as soon as practicable
following the Merger using proceeds from the sale of WFS Common Stock by the
ESOP pursuant to the Merger, (ii) that any and all unallocated assets or funds
remaining in the ESOP after the Loan is paid off pursuant to the immediately
preceding clause shall be allocated as soon as possible after the Loan is paid
off, to the maximum extent permitted under the law (as defined hereafter) to the
ESOP accounts of the persons who are participants in the ESOP as of the day
preceding the Merger, and that such allocation to such participants shall be
made during the Plan Year of the ESOP in which the Merger is consummated; and
(iii) that, until the maximum allocation under clause (ii) of this sentence has
been made for the Plan Year in which the Merger is consummated, no person shall
become a new participant in the ESOP as of or after the Effective Time, the ESOP
shall not be merged into any other qualified plan, nor shall any other qualified
plan be merged into the ESOP, and neither the Acquiror nor any affiliate of the
Acquiror (or any successor of either of the foregoing) may seek to obtain a
reversion of any portion of the unallocated assets of the ESOP.
(b) The phrase "to the maximum extent permitted under the law" in
clause (ii) of Section shall mean to the maximum extent permitted under Section
415 of the Internal Revenue Code, and for this purpose treating as "annual
additions" under Section 415 of the Internal Revenue Code only that portion of
the unallocated assets and funds under the ESOP that is equal to X multiplied by
[Y divided by Z], where X equals the dollar amount of assets to be allocated to
each participant's ESOP account, Y equals the price at which WFS common stock
was initially purchased by the ESOP, and Z equals the price at which the WFS
common stock held by the ESOP is sold to Acquisition Company.
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(c) Nothing in this Section shall require the Acquiror to make
additional contributions to the ESOP or, after the maximum allocation described
in clause (ii) of Section has been made, prohibit it from terminating the ESOP,
merging it into another qualified plan of the Acquiror or the Surviving
Corporation, or otherwise deal with the ESOP for the remaining unallocated
assets or funds of the ESOP as Acquiror deems advisable; provided, however, and
notwithstanding the foregoing, under no circumstances shall the Acquiror or any
affiliate of the Acquiror (or any successor of either of the foregoing) seek to
obtain a reversion of any portion of the unallocated assets of the ESOP.
ARTICLE 9
CONDITIONS PRECEDENT TO OBLIGATIONS TO CONSUMMATE
9.1 Conditions to Obligations of Each Party. The respective obligations of
each Party to perform this Agreement and consummate the Merger and the other
transactions contemplated hereby, except those obligations which will continue
after any termination of this Agreement as otherwise provided herein, are
subject to the satisfaction of the following conditions, unless waived by both
Parties pursuant to Section of this Agreement:
(a) Shareholder Approval. The shareholders of WFS shall have approved
this Agreement, and the consummation of the transactions contemplated
hereby, other than the Related Mergers, as and to the extent required by
Law, by the provisions of any governing instruments, or by the rules of the
NASD.
(b) Regulatory Approvals. All Consents of, filings and registrations
with, and notifications to, all Regulatory Authorities required for
consummation of the Merger shall have been obtained or made and shall be in
full force and effect and all waiting periods required by Law shall have
expired. No Consent obtained from any Regulatory Authority which is
necessary to consummate the Merger and the transactions contemplated hereby
shall be conditioned or restricted in a manner (including requirements
relating to the raising of additional capital in excess of the amount of
capital set forth in Section of the Acquiror Disclosure Memorandum, but not
including any requirements that Assets or deposits be divested in order to
cure any asserted anti-trust concern, the parties agreeing that the risk of
such divestiture requirements is assumed by Acquiror) which in the
reasonable judgment of the Board of Directors of Acquiror would so
materially adversely impact the economic or business benefits of the
transactions contemplated by this Agreement that, had such condition or
requirement been known, Acquiror would not, in its reasonable judgment,
have entered into this Agreement.
(c) Legal Proceedings. No court or governmental or regulatory
authority of competent jurisdiction shall have enacted, issued,
promulgated, enforced, or entered any Law or Order (whether temporary,
preliminary, or permanent) or taken any other action which prohibits,
restricts, or makes illegal consummation of the transactions contemplated
by this Agreement.
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(d) ESOP Ruling. If no private letter ruling or other documentation or
evidence has been received establishing to the reasonable satisfaction of
the parties that the ESOP may repay the loan from WFS from the proceeds
received by the ESOP under the Merger for the WFS Common Stock issued to
the ESOP without causing the loan to fail to qualify as an exempt loan
under Internal Revenue Code Section 4975(e)(7) and regulations thereunder.
9.2 Conditions to Obligations of Acquiror. The obligations of Acquiror to
perform this Agreement and consummate the Merger and the other transactions
contemplated hereby are subject to the satisfaction of the following conditions,
unless waived by Acquiror pursuant to Section of this Agreement:
(a) Representations and Warranties. For purposes of this Section , the
accuracy of the representations and warranties of WFS set forth in this
Agreement shall be assessed as of the date of this Agreement and as of the
Effective Time with the same effect as though all such representations and
warranties had been made on and as of the Effective Time (provided that
representations and warranties which are confined to a specified date shall
speak only as of such date). The representations and warranties of WFS set
forth in Section of this Agreement shall be true and correct (except for
inaccuracies which are de minimis in amount. The representations and
warranties of WFS set forth in Sections , , and of this Agreement shall be
true and correct in all material respects. There shall not exist
inaccuracies in the representations and warranties of WFS set forth in this
Agreement (excluding the representations and warranties set forth in
Sections , , , and ) such that the aggregate effect of such inaccuracies
would have, or reasonably may have, a Material Adverse Effect on WFS;
provided that, for purposes of this sentence only, those representations
and warranties which are qualified by references to "material" or "Material
Adverse Effect" shall be deemed not to include such qualifications.
(b) Performance of Agreements and Covenants. Each and all of the
agreements and covenants of WFS to be performed and complied with pursuant
to this Agreement and the other agreements contemplated hereby prior to the
Effective Time shall have been duly performed and complied with in all
material respects.
(c) Certificates. WFS shall have delivered to Acquiror (i) a
certificate, dated as of the Effective Time and signed on its behalf by its
chief executive officer and its chief financial officer, to the effect that
the conditions of its obligations set forth in Section and Section of this
Agreement have been satisfied, and (ii) certified copies of resolutions
duly adopted by WFS' Board of Directors and shareholders evidencing the
taking of all corporate action necessary to authorize the execution,
delivery, and performance of this Agreement, and the consummation of the
transactions contemplated hereby, other than the Related Mergers, all in
such reasonable detail as Acquiror and its counsel shall request.
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(d) Accountant's Letters. Acquiror shall have received from KPMG Peat
Marwick LLP letters dated not more than five days prior to (i) the date of
the Proxy Statement and (ii) the Effective Time, with respect to certain
financial information regarding WFS, in form and substance reasonably
satisfactory to Acquiror, which letters shall be based upon customary
specified procedures undertaken by such firm in accordance with Statement
of Auditing Standard No. 72.
(e) Related Mergers. Each of WFS and Wichita Federal shall have
entered into a Related Merger agreement in accordance with the terms of
Section and the other provisions of this Agreement upon a reasonable
request of Acquiror.
(f) Stockholder Approval. Neither the stockholders of WFS nor of
Wichita Federal shall have approved either of the Related Mergers prior to
the Effective Time.
9.3 Conditions to Obligations of WFS. The obligations of WFS to perform
this Agreement and consummate the Merger and the other transactions contemplated
hereby are subject to the satisfaction of the following conditions, unless
waived by WFS pursuant to Section of this Agreement.
(a) Representations and Warranties. For purposes of this Section , the
accuracy of the representations and warranties of Acquiror set forth in
this Agreement shall be assessed as of the date of this Agreement and as of
the Effective Time with the same effect as though all such representations
and warranties had been made on and as of the Effective Time (provided that
representations and warranties which are confined to a specified date shall
speak only as of such date). The representations and warranties of Acquiror
set forth in Sections and of this Agreement shall be true and correct in
all material respects. There shall not exist inaccuracies in the
representations and warranties of Acquiror set forth in this Agreement
(excluding the representations and warranties set forth in Sections and )
such that the aggregate effect of such inaccuracies would have, or is
reasonably likely to have, a Material Adverse Effect on Acquiror; provided
that, for purposes of this sentence only, those representations and
warranties which are qualified by references to "material" or "Material
Adverse Effect" shall be deemed not to include such qualifications.
(b) Performance of Agreements and Covenants. Each and all of the
agreements and covenants of Acquiror to be performed and complied with
pursuant to this Agreement and the other agreements contemplated hereby
prior to the Effective Time shall have been duly performed and complied
with in all material respects.
(c) Certificates. Acquiror shall have delivered to WFS (i) a
certificate, dated as of the Effective Time and signed on its behalf by its
chief executive officer and its chief financial officer, to the effect that
the conditions of its obligations set
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forth in Sections and of this Agreement have been satisfied, and (ii)
certified copies of resolutions duly adopted by Acquiror's Board of
Directors evidencing the taking of all corporate action necessary to
authorize the execution, delivery, and performance of this Agreement, and
the consummation of the transactions contemplated hereby, other than the
Related Mergers, all in such reasonable detail as WFS and its counsel shall
request.
(d) Fairness Opinion. WFS shall have received from Charles Webb &
Company a letter, dated not more than five business days prior to the date
of the Proxy Statement, to the effect that, in the opinion of such firm,
the Merger Cash Price is fair, from a financial point of view, to the
holders of WFS Common Stock.
ARTICLE 10
TERMINATION
10.1 Termination. Notwithstanding any other provision of this Agreement,
and notwithstanding the approval of the Agreement by the shareholders of WFS,
this Agreement may be terminated and the Merger abandoned at any time prior to
the Effective Time:
(a) By mutual consent of the Board of Directors of Acquiror and the
Board of Directors of WFS; or
(b) By the Board of Directors of either Party (provided that the
terminating Party is not then in breach of any representation or warranty
contained in this Agreement under the applicable standard set forth in
Section of this Agreement in the case of WFS and Section in the case of
Acquiror or in material breach of any covenant or other agreement contained
in this Agreement) in the event of an inaccuracy of any representation or
warranty of the other Party contained in this Agreement which cannot be or
has not been cured within 30 days after the giving of written notice to the
breaching Party of such inaccuracy and which inaccuracy would provide the
terminating Party the ability to refuse to consummate the Merger under the
applicable standard set forth in Section of this Agreement in the case of
WFS and Section in the case of Acquiror; or
(c) By the Board of Directors of either Party (provided that the
terminating Party is not then in breach of any representation or warranty
contained in this Agreement under the applicable standard set forth in
Section of this Agreement in the case of WFS and Section in the case of
Acquiror or in material breach of any covenant or other agreement contained
in this Agreement) in the event of a material breach by the other Party of
any covenant or agreement contained in this Agreement which cannot be or
has not been cured within 30 days after the giving of written notice to the
breaching party of such breach; or
(d) By the Board of Directors of either Party (provided that the
terminating Party is not then in breach of any representation or warranty
contained
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in this Agreement under the applicable standard set forth in Section of
this Agreement in the case of WFS and Section in the case of Acquiror or in
material breach of any covenant or other agreement contained in this
Agreement) in the event (i) any Consent of any Regulatory Authority
required for consummation of the Merger and the other transactions
contemplated hereby (other than the Related Mergers) shall have been denied
by final nonappealable action of such authority or if any action taken by
such authority is not appealed within the time limit for appeal, or (ii)
the shareholders of WFS fail to vote their approval of this Agreement and
the transactions contemplated hereby, other than the Related Mergers, as
required by the DGCL and the rules of the NASD at the Shareholders' Meeting
where the transactions were presented to such shareholders for approval and
voted upon; or
(e) By the Board of Directors of either Party in the event that the
Merger shall not have been consummated by September 30, 1996, if the
failure to consummate the transactions contemplated hereby on or before
such date is not caused by any breach of this Agreement by the Party
electing to terminate pursuant to this Section ; or
(f) By the Board of Directors of either Party (provided that the
terminating Party is not then in breach of any representation or warranty
contained in this Agreement under the applicable standard set forth in
Section of this Agreement in the case of WFS and Section in the case of
Acquiror or in material breach of any covenant or other agreement contained
in this Agreement) in the event any of the conditions precedent to the
obligations of such Party to consummate the Merger (other than as
contemplated by Section of this Agreement) cannot be satisfied or fulfilled
by the date specified in Section of this Agreement as the date after which
such Party may terminate this Agreement; or
(g) By the Board of Directors of WFS pursuant to Section , provided it
has complied with all of the provisions thereof, including the notice
provisions thereof, and provided further, that after approval of this
Agreement by the shareholders of WFS, Section of this Agreement shall no
longer be operative or permit WFS to take any of the actions referred to
therein, including any right to terminate this Agreement.
10.2 Effect of Termination. In the event of the termination and abandonment
of this Agreement pursuant to Section of this Agreement, this Agreement shall
become void and have no effect, except that (i) the provisions of this Section
and Article and Section of this Agreement shall survive any such termination and
abandonment, and (ii) a termination pursuant to Sections , , and of this
Agreement shall not relieve the breaching Party from Liability pursuant to
Section for an uncured willful breach of a representation, warranty, covenant,
or agreement giving rise to such termination.
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10.3 Non-Survival of Representations and Covenants. The respective
representations, warranties, obligations, covenants, and agreements of the
Parties shall not survive the Effective Time except this Section and Articles ,
, , and and Sections , , and of this Agreement.
ARTICLE 11
MISCELLANEOUS
11.1 Definitions.
(a) Except as otherwise provided herein, the capitalized terms set
forth below shall have the following meanings:
"Acquiror Companies" shall mean, collectively, Acquiror and all
Acquiror Subsidiaries of Acquiror or any parent corporation of which
Acquiror is a Subsidiary.
"Acquiror Disclosure Memorandum" shall mean the written information
entitled "Acquiror Disclosure Memorandum" delivered prior to the date of
this Agreement to WFS describing in reasonable detail the matters contained
therein and, with respect to each disclosure made therein, specifically
referencing each Section of this Agreement under which such disclosure is
being made. Information disclosed with respect to one Section shall not be
deemed to be disclosed for purposes of any other Section not specifically
referenced with respect thereto.
"Acquiror Financial Statements" shall mean (i) the Consolidated
Statements of Condition of EFC as of September 30, 1995, December 31, 1994,
and December 31, 1993, Income Statements for periods ending the same date,
and the Interim Report on Form FR-Y9C dated June 30, 1995, filed with the
Board of Governors of the Federal Reserve System, (ii) the Call Reports of
Emprise Bank ended December 31, 1993, December 31, 1994, and September 30,
1995, and (iii) the same Consolidated Statements of EFC and Call Reports of
Emprise Bank with respect to periods ended subsequent to the above
Statements and Call Reports. The Acquiror Financial Statements shall
include related notes and schedules, if any, on any of the foregoing
Statements and Call Reports.
"Acquisition Proposal" with respect to a Party shall mean any tender
offer or exchange offer or any proposal for a merger, acquisition of all of
the stock or assets of, or other business combination involving such Party
or any of its Subsidiaries, the purchase or lease of a substantial portion
of the Assets of such Party or its Subsidiaries, or the acquisition by the
foregoing or other means of a substantial equity interest in, or a
substantial portion of the assets of, such Party or any of its
Subsidiaries.
"Affiliate" of a Person shall mean (i) any other Person directly, or
indirectly through one or more intermediaries, controlling, controlled by,
or under common
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control with such Person; (ii) any officer, director, partner, employer, or
direct or indirect beneficial owner of any 10% or greater equity or voting
interest of such Person; or (iii) any other Person for which a Person
described in clause (ii) acts in any such capacity.
"Agreement" shall mean this Amended and Restated Agreement and Plan
of Merger.
"Assets" of a Person shall mean all of the assets, properties,
businesses, and rights of such Person of every kind, nature, character, and
description, whether real, personal, or mixed, tangible or intangible,
accrued or contingent, or otherwise relating to or utilized in such
Person's business, directly or indirectly, in whole or in part, whether or
not carried on the books and records of such Person, and whether or not
owned in the name of such Person or any Affiliate of such Person and
wherever located.
"Business Combination" shall mean an acquisition of, merger or
combination with, share exchange involving any class of voting stock of,
sale of more than 25% of the consolidated assets by, or other business
combination involving, or tender offer for or sale or issuance of any
equity securities involving an acquisition by a third party of more than
25% of the voting stock of, WFS.
"Certificate of Merger" shall mean the Certificate of Merger to be
executed by Acquisition Company and filed with the Secretary of State of
Delaware and with the Secretary of State of the State of Kansas relating to
the Merger as contemplated by Section of this Agreement.
"Confidentiality Agreement" shall mean that certain letter
Confidentiality Agreement, dated August 30, 1995, between WFS and Emprise
Bank, Wichita.
"Consent" shall mean any consent, approval, authorization, clearance,
exemption, waiver, or similar affirmation by any Person pursuant to any
Contract, Law, Order, or Permit.
"Contract" shall mean any written or oral agreement, arrangement,
authorization, commitment, contract, indenture, instrument, lease,
obligation, plan, practice, restriction, understanding or undertaking of
any kind or character, or other document to which any Person is a party or
that is binding on any Person or its capital stock, Assets, or business.
"Default" shall mean (i) any breach or violation of or default under
any Contract, Order, or Permit, (ii) any occurrence of any event that with
the passage of time or the giving of notice or both would constitute a
breach or violation of or default under any Contract, Order, or Permit, or
(iii) any occurrence of any event that with or without the passage of time
or the giving of notice would give rise to a
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right to terminate or revoke, change the current terms of, or renegotiate,
or to accelerate, increase, or impose any Liability under, any Contract,
Order, or Permit.
"DGCL" shall mean the Delaware General Corporation Law.
"Environmental Laws" shall mean all Laws relating to pollution or
protection of human health or the environment (including ambient air,
surface water, ground water, land surface, or subsurface strata) and which
are administered, interpreted, or enforced by the United States
Environmental Protection Agency and state and local agencies with
jurisdiction over, and including common law in respect of, pollution or
protection of the environment, including the Comprehensive Environmental
Response Compensation and Liability Act, as amended, 42 U.S.C. 9601, et
seq. ("CERCLA"), the Resource Conservation and Recovery Act, as amended, 42
U.S.C. 6901, et seq. ("RCRA"), and other Laws relating to emissions,
discharges, releases, or threatened releases of any Hazardous Material, or
otherwise relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport, or handling of any Hazardous
Material.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended.
"ERISA Affiliate" shall have the meaning provided in Section of this
Agreement.
"ESOP" shall mean the WFS Bancorp, Inc., Employee Stock Ownership Plan
executed April 24, 1994, and made effective January 1, 1994.
"FDIC" shall mean the Federal Deposit Insurance Corporation.
"GAAP" shall mean generally accepted accounting principles,
consistently applied during the periods involved.
"Hazardous Material" shall mean (i) any hazardous substance, hazardous
material, hazardous waste, regulated substance, or toxic substance (as
those terms are defined by any applicable Environmental Laws) and (ii) any
chemicals, pollutants, contaminants, petroleum, petroleum products, or oil,
and shall specifically include asbestos.
"HOLA" shall mean the Home Owners' Loan Act of 1933, as amended.
"HSR Act" shall mean Section 7A of the Clayton Act, as added by Title
II of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended,
and the rules and regulations promulgated thereunder.
"Internal Revenue Code" shall mean the Internal Revenue Code of 1986,
as amended, and the rules and regulations promulgated thereunder.
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"Knowledge" as used with respect to a Person (including references to
such Person being aware of a particular matter) shall mean the personal
knowledge after due inquiry of the chairman, president, chief financial
officer, chief accounting officer, chief credit officer, general counsel,
any assistant or deputy general counsel, or any senior or executive vice
president of such Person.
"Law" shall mean any code, law, ordinance, regulation, reporting or
licensing requirement, rule, or statute applicable to a person or its
Assets, Liabilities, or business, including those promulgated, interpreted,
or enforced by any Regulatory Authority.
"Liability" shall mean any direct or indirect, primary or secondary,
liability, indebtedness, obligation, penalty, cost, or expense (including
costs of investigation, collection, and defense), claim, deficiency,
guaranty, or endorsement of or by any Person (other than endorsements of
notes, bills, checks, and drafts presented for collection or deposit in the
ordinary course of business) of any type, whether accrued, absolute, or
contingent, liquidated or unliquidated, matured or unmatured, or otherwise.
"Lien" shall mean any conditional sale agreement, default of title,
easement, encroachment, encumbrance, hypothecation, infringement, lien,
mortgage, pledge, reservation, restriction, security interest, title
retention, or other security arrangement, or any adverse right or interest,
charge, or claim of any nature whatsoever of, on, or with respect to any
property or property interest, other than (i) Liens for current property
Taxes not yet due and payable, (ii) for depository institutions, pledges to
secure deposits, and other Liens incurred in the ordinary course of the
banking business, and (iii) Liens which are not reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on a Party.
"Litigation" shall mean any action, arbitration, cause of action,
claim, complaint, criminal prosecution, demand letter, governmental or
other examination or investigation, hearing, inquiry, administrative or
other proceedings, or notice (written or oral) by any Person alleging
potential Liability or requesting information relating to or affecting a
party, its business, its Assets (including Contracts related to it), or the
transactions contemplated by this Agreement (including the Related
Mergers), but shall not include regular, periodic examinations of
depository institutions and their Affiliates by Regulatory Authorities.
"Loan Property" shall mean any property owned or controlled by the
Party in question or by any of its Subsidiaries or in which such Party or
Subsidiary holds a security or other interest, and, where required by the
context, includes any such property where such Party or any of its
Subsidiaries constitutes the owner or operator of such property, but only
with respect to such property.
"material" for purposes of this Agreement shall be determined in light
of the facts and circumstances of the matter in question; provided that any
specific
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monetary amount stated in this Agreement shall determine materiality in
that instance.
"Material Adverse Effect" on a Party shall mean an event, change, or
occurrence which, individually or together with any other event, change, or
occurrence, has a material adverse impact on (i) the financial position,
business, or results of operations of such party and its Subsidiaries,
taken as a whole, or (ii) the ability of such Party to perform its
obligations under this Agreement or to consummate the Merger or the other
transactions contemplated by this Agreement (including the Related
Mergers), provided that "material adverse effect" shall not be deemed to
include the impact of (a) changes in banking and similar Laws (including
deposit insurance assessments for depository Subsidiaries) of general
applicability or interpretations thereof by courts or governmental
authorities, (b) changes in GAAP or regulatory accounting principles
generally applicable to banks, savings associations, or their holding
companies, and (c) the Merger and compliance with the provisions of this
Agreement on the operating performance of the Parties.
"MRRP" shall mean the WFS Bancorp, Inc. "Management Recognition and
Retention Plan" ratified by the WFS shareholders on January 18, 1995.
"NASD" shall mean the National Association of Securities Dealers, Inc.
"1933 Act" shall mean the Securities Act of 1933, as amended.
"1934 Act" shall mean the Securities Exchange Act of 1934, as amended.
"Order" shall mean any administrative decision or award, decree,
injunction, judgment, order, quasi-judicial decision or award, ruling, or
writ of any federal, state, local, or foreign or other court, arbitrator,
mediator, tribunal, administrative agency, or Regulatory Authority.
"Participation Facility" shall mean any facility or property in which
the Party in question or any of its Subsidiaries participates in the
management and, where required by the context, includes the owner or
operator of such facility or property, but only with respect to such
facility or property.
"Party" shall mean either WFS or Acquiror, and "Parties" shall mean
both of WFS and Acquiror.
"Permit" shall mean any federal, state, local, and foreign
governmental approval, authorization, certificate, easement, filing,
franchise, license, notice, permit, or right to which any Person is a party
or that is or may be binding upon or inure to the benefit of any Person or
its securities, Assets, or business.
"Person" shall mean a natural person or any legal, commercial, or
governmental entity, such as, but not limited to, a corporation, general
partnership,
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joint venture, limited partnership, limited liability company, trust,
business association, group acting in concert, or any person acting in a
representative capacity.
"Proxy Statement" shall mean the proxy statement used by WFS to
solicit the approval of WFS' shareholders of the transactions contemplated
by this Agreement.
"Regulatory Authorities" shall mean, collectively, the Federal Trade
Commission, the United States Department of Justice, the Board of Governors
of the Federal Reserve System, the Office of Thrift Supervision (including
its predecessor, the Federal Home Loan Bank Board), the FDIC, the State
Banking Board of the State of Kansas, and any other federal or state
regulatory agency having jurisdiction over the Parties and their respective
Subsidiaries or parent company of which they are a Subsidiary, the NASD,
and the SEC.
"Representative" shall mean any investment banker, financial advisor,
attorney, accountant, consultant, or other representative of a Person.
"Rights" shall mean all arrangements, calls, commitments, Contracts,
options, rights to subscribe to, scrip, understandings, warrants, or other
binding obligations of any character whatsoever relating to, or securities
or rights convertible into or exchangeable for, shares of the capital stock
of a Person or by which a Person is or may be bound to issue additional
shares of its capital stock or other Rights.
"SEC Documents" shall mean all forms, proxy statements, reports,
schedules, and other documents filed, or required to be filed, by a Party
or any of its Subsidiaries or parent company of which it is a Subsidiary
with any Regulatory Authority pursuant to the Securities Laws.
"Securities Laws" shall mean the 1933 Act, the 1934 Act, the
Investment Company Act of 1940, as amended, the Investment Advisors Act of
1940, as amended, the Trust Indenture Act of 1939, as amended, and the
rules and regulations of any Regulatory Authority promulgated thereunder.
"Shareholders' Meeting" shall mean the meeting of the shareholders of
WFS to be held pursuant to Section of this Agreement, including any
adjournment or adjournments thereof.
"Subsidiaries" shall mean all those corporations, banks, associations,
or other entities of which the entity in question owns or controls 50% or
more of the outstanding equity securities either directly or through an
unbroken chain of entities as to each of which 50% or more of the
outstanding equity securities is owned directly or indirectly by its
parent; provided, there shall not be included any such entity acquired
through foreclosure or any such entity the equity securities of which are
owned or controlled in a fiduciary capacity.
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<PAGE>
"Surviving Corporation" shall mean the surviving corporation resulting
from the Merger or if used in the context of a Related Merger, the
surviving corporation of the Related Merger.
"Tax" or "Taxes" shall mean any federal, state, county, local, or
foreign income, profits, franchise, gross receipts, payroll, sales,
employment, use property, withholding, excise, occupancy, and other taxes,
assessments, charges, fares, or impositions, including interest, penalties,
and additions imposed thereon or with respect thereto.
"WFS Common Stock" shall mean the $.01 par value common stock of WFS.
"WFS Companies" shall mean, collectively, WFS and all WFS Subsidiaries.
"WFS Disclosure Memorandum" shall mean the written information
entitled "WFS Bancorp, Inc. Disclosure Memorandum" delivered prior to the
date of this Agreement to Acquiror describing in reasonable detail the
matters contained therein and, with respect to each disclosure made
therein, specifically referencing each Section of this Agreement under
which such disclosure is being made. Information disclosed with respect to
one Section shall not be deemed to be disclosed for purposes of any other
Section not specifically referenced with respect thereto. Reference in this
Agreement to a Section of this Agreement shall also include a reference to
the corresponding Section of the WFS Disclosure Memorandum.
"WFS Financial Statements" shall mean (i) the consolidated balance
sheets (including related notes and schedules, if any) of WFS as of June
30, 1995, and as of September 30, 1994 and 1993, and the related statements
of income, changes in shareholders' equity, and cash flows (including
related notes and schedules, if any) for the nine months ended June 30,
1995, and for each of the three fiscal years ended September 30, 1994,
1993, and 1992, as filed by WFS in SEC Documents, and (ii) the consolidated
balance sheets of WFS (including related notes and schedules, if any) and
related statements of income, changes in shareholders' equity, and cash
flows (including related notes and schedules, if any) included in SEC
Documents filed with respect to periods ended subsequent to June 30, 1995.
"WFS Stock Plan" shall mean the existing stock option plan of WFS
designated as follows: WFS Bancorp, Inc. "1994 Stock Option and Incentive
Plan" ratified by the WFS shareholders on January 18, 1995.
"WFS Subsidiaries" shall mean the Subsidiaries of WFS, which shall
include the WFS Subsidiaries described in Section of this Agreement.
(b) The terms set forth below shall have the meanings ascribed thereto
in the referenced sections:
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<PAGE>
Acquisition Company Section 1.1
Closing Section 1.2
Effective Time Section 1.3
ERISA Affiliate Section 5.12(c)
Exchange Agent Section 4.1
Merger Section 1.1
Merger Cash Price Section 3.1
Related Mergers Section 1.4
Severance Procedure Letter Section 8.10
Termination Event Section 11.2(b)
WFS Benefit Plans Section 5.12(a)
WFS ERISA Plan Section 5.12(a)
(c) Any singular term in this Agreement shall be deemed to include the
plural, and any plural term the singular. Whenever the words "include,"
"includes," or "including" are used in this Agreement, they shall be deemed
followed by the words "without limitation."
11.2 Expenses.
(a) Except as otherwise provided in this Section , each of the Parties
shall bear and pay all direct costs and expenses incurred by it or on its behalf
in connection with the transactions contemplated hereunder (including the
Related Mergers), including filing, registration and application fees, printing
fees, and fees and expenses of its own financial or other consultants,
investment bankers, accountants, and counsel.
(b) Notwithstanding the foregoing, if any of the following occurs:
(i) any termination of this Agreement
a) by Acquiror pursuant to Section (but only in the
case of a willful breach by WFS of a representation or
warranty), (but only in the case of a willful breach by WFS
of a covenant), or (but only on the basis of the failure to
satisfy any of the conditions enumerated in Section (but
only upon or after the occurrence of a Termination Event),
(but only in the case of a willful breach by WFS of a
representation or warranty), or (but only in the case of a
willful breach by WFS of a covenant)) of this Agreement, or
b) by WFS pursuant to Section (but only on the basis
of the failure to satisfy any of the conditions enumerated
in Section (but only upon or after the occurrence of a
Termination Event) or ) or of this Agreement, or
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<PAGE>
c) by either Party pursuant to Section (ii) (but only
upon or after the occurrence of a Termination Event) of this
Agreement, or
(ii) failure to consummate the Merger by reason of any failure to
satisfy the conditions enumerated in Section (but only upon or after
the occurrence of a Termination Event), (but only in the case of a
willful breach by WFS of a representation or warranty), (but only in
the case of a willful breach by WFS of a covenant), , , or of this
Agreement,
then WFS covenants, acknowledges, and agrees that for a period of 12 months
following the occurrence of any of the above, it shall be a specific, absolute,
and unconditional binding condition to WFS' entering into a letter of intent,
agreement in principle, or definitive agreement (whether or not considered
binding, non-binding, or conditional) with respect to, or recommending
shareholder acceptance of, any Business Combination with any third party, that
such third party that is a party to the Business Combination shall pay to
Acquiror, prior to the time the Business Combination is announced to the public
by press release or otherwise, an amount in cash equal to $1,700,000, which sum
represents one of the inducements of Acquiror to enter into this Agreement, and
the direct costs and expenses (including, without limitation, fees and expenses
of Acquiror's financial or other consultants, printing costs, investment
bankers, accountants, and counsel) incurred by Acquiror in negotiating and
carrying out the transactions contemplated by this Agreement (including the
Related Mergers), and the indirect costs and expenses incurred by Acquiror in
connection with the transactions contemplated by this Agreement (including the
Related Mergers), including Acquiror's management time devoted to negotiation
and preparation for such transaction. In the event such third party shall fail
or refuse to pay such amounts, the amounts shall be an obligation of WFS and
shall be paid by WFS promptly upon notice to WFS by Acquiror.
(c) Notwithstanding the foregoing, if:
(i) this Agreement is terminated by WFS pursuant to Section (but
only in the case of a willful breach by Acquiror of a representation
or warranty), (but only in the case of a willful breach by Acquiror of
a covenant), or (but only on the basis of the failure to satisfy any
of the conditions enumerated in Section (but only in the case of a
willful breach by Acquiror of a representation or warranty), or (but
only in the case of a willful breach by Acquiror of a covenant)) of
this Agreement, or
(ii) the Merger is not consummated by reason of any failure to
satisfy the conditions enumerated in Section (but only in the case of
a willful breach by Acquiror of a representation or warranty) or (but
only in the case of a willful breach by Acquiror of a covenant) of
this Agreement,
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<PAGE>
Acquiror shall promptly pay WFS an amount in cash equal to $1,700,000 which sum
represents the direct cost and expenses (including, without limitation, fees and
expenses of WFS' financial or other consultants, printing costs, investment
bankers, accountants, and counsel) incurred by WFS in negotiating and carrying
out the transactions contemplated by this Agreement and the indirect costs and
expenses incurred by WFS in connection with the transactions contemplated by
this Agreement, including WFS' management time devoted to negotiation and
preparation for such transaction.
For purposes of this Section , "Termination Event" shall mean the
occurrence of any of the following: (i) the Shareholders' Meeting shall have
been canceled prior to the termination of this Agreement; (ii) WFS' Board of
Directors shall have withdrawn or modified in a manner adverse to Acquiror the
recommendation of WFS' Board of Directors with respect to the Merger or this
Agreement; or (iii) this Agreement and the consummation of the transactions
contemplated hereby, including the Merger, shall not have been approved at the
Shareholders' Meeting after any Person made, or disclosed an intention to make,
or had negotiations pertaining to, an Acquisition Proposal and this fact is
communicated to a material number of the WFS shareholders, whether by direct or
indirect communication by any Person, public announcement, or other public
disclosure.
11.3 Brokers and Finders. Except for Charles Webb & Company as to WFS and
except for Keefe, Bruyette & Woods, Inc. as to Acquiror, each of the Parties
represents and warrants that neither it nor any of its officers, directors,
employees, or Affiliates has employed any broker or finder or incurred any
Liability for any financial advisory fees, investment bankers' fees, brokerage
fees, commissions, or finders' fees in connection with this Agreement or the
transactions contemplated hereby, including the Related Mergers. In the event of
a claim by any broker or finder based upon his or its representing or being
retained by or allegedly representing or being retained by WFS or Acquiror, each
of WFS and Acquiror, as the case may be, agrees to indemnify and hold the other
harmless of and from any Liability in respect of any such claim.
11.4 Entire Agreement. Except as otherwise expressly provided herein, this
Agreement (including the documents and instruments referred to herein)
constitutes the entire agreement of the Parties with respect to the transactions
contemplated hereunder and supersedes all prior arrangements or understandings
with respect thereto, written or oral (except, as to Section of this Agreement,
for the Confidentiality Agreement and, except as to Section of this Agreement,
for the Severance Procedure Letter). Nothing in this Agreement, expressed or
implied, is intended to confer upon any Person, other than the Parties or their
respective successors, any rights, remedies, obligations, or liabilities under
or by reason of this Agreement, other than as provided in Sections and of this
Agreement.
11.5 Amendments. To the extent permitted by Law, this Agreement may be
amended by a subsequent writing signed by each of the Parties upon the approval
of the Boards of Directors of each of the Parties, whether before or after
shareholder approval of this Agreement has been obtained; provided, that after
any such approval by the holders of WFS Common Stock, the provisions of this
Agreement relating to the manner or basis in
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<PAGE>
which shares of WFS Common Stock will be canceled and surrendered in exchange
for the Merger Cash Price shall not be amended after the Shareholders' Meeting
in a manner adverse to the holders of WFS Common Stock without any requisite
approval of the holders of the issued and outstanding shares of WFS Common Stock
entitled to vote thereon.
11.6 Waivers.
(a) Prior to or at the Effective Time, Acquiror, acting through its
Board of Directors, chief executive officer, or other authorized officer, shall
have the right to waive any Default in the performance of any term of this
Agreement by WFS, to waive or extend the time for the compliance or fulfillment
by WFS of any and all of its obligations under this Agreement, and to waive any
or all of the conditions precedent to the obligations of Acquiror under this
Agreement, except any condition which, if not satisfied, would result in the
violation of any Law. No such waiver shall be effective unless in writing signed
by a duly authorized officer of Acquiror.
(b) Prior to or at the Effective Time, WFS, acting through its Board
of Directors, chief executive officer, or other authorized officer, shall have
the right to waive any Default in the performance of any term of this Agreement
by Acquiror, to waive or extend the time for the compliance or fulfillment by
Acquiror of any and all of its obligations under this Agreement, and to waive
any or all of the conditions precedent to the obligations of WFS under this
Agreement, except any condition which, if not satisfied, would result in the
violation of any Law. No such waiver shall be effective unless in writing signed
by a duly authorized officer of WFS.
(c) The failure of any Party at any time or times to require
performance of any provision hereof shall in no manner affect the right of such
Party at a later time to enforce the same or any other provision of this
Agreement. No waiver of any condition or of the breach of any term contained in
this Agreement in one or more instances shall be deemed to be or construed as a
further or continuing waiver of such condition or breach or a waiver of any
other condition or of the breach of any other term of this Agreement.
11.7 Assignment. Except as expressly contemplated hereby, neither this
Agreement nor any of the rights, interests, or obligations hereunder shall be
assigned by any Party (whether by operation of Law or otherwise) without the
prior written consent of the other Party. Subject to the preceding sentence,
this Agreement will be binding upon, inure to the benefit of, and be enforceable
by the Parties and their respective successors and assigns.
11.8 Notices. All notices or other communications which are required or
permitted hereunder shall be in writing and sufficient if delivered by hand, by
facsimile transmission, by registered or certified mail, postage prepaid, or by
courier or overnight carrier, to the persons at the addresses set forth below
(or at such other address as may be provided hereunder), and shall be deemed to
have been delivered as of the date so delivered:
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<PAGE>
WFS: WFS Bancorp, Inc
340 South Broadway
Wichita, KS 67202
Telecopy Number: (316) 383-8484
Attention: Burton G. Dunlap
President and Chief Executive Officer
Copy to Counsel: Alston & Bird
601 Pennsylvania Avenue, N.W.
North Building, Suite 250
Washington, D.C. 20004
Telecopy Number: (202) 508-3333
Attention: Frank M. Conner III
Acquiror: Emprise Bank, Wichita
130 North Market
P. O. Box 2970
Wichita, KS 67201
Telecopy Number: (316) 383-4399
Attention: M. D. Michaelis
Chairman of the Board
or Thomas A. Page
President and CEO
Copy to Counsel: Morris, Laing, Evans Brock &
Kennedy, Chartered
Fourth Floor - 200 West Douglas
Wichita, KS 67202-3084
Telecopy Number: (316) 262-5991
Attention: Ralph R. Brock
11.9 Governing Law. This Agreement shall be governed by and construed in
accordance with the Laws of the State of Kansas, without regard to any
applicable conflicts of Laws.
11.10 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
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<PAGE>
11.11 Captions. The captions contained in this Agreement are for reference
purposes only and are not part of this Agreement.
11.12 Interpretations. Neither this Agreement nor any uncertainty or
ambiguity herein shall be construed or resolved against any Party, whether under
any rule of construction or otherwise. No Party shall be considered the
draftsman. The Parties acknowledge and agree that this Agreement has been
reviewed, negotiated, and accepted by all Parties and their attorneys and shall
be construed and interpreted according to the ordinary meaning of the words used
so as fairly to accomplish the purposes and intentions of all Parties.
11.13 Enforcement of Agreement. The Parties hereto agree that irreparable
damage would occur in the event that any of the provisions of this Agreement was
not performed in accordance with its specific terms or was otherwise breached.
It is accordingly agreed that the Parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions hereof in any court of the United States or any state
having jurisdiction, this being in addition to any other remedy to which they
are entitled at law or in equity.
11.14 Severability. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provisions of
this Agreement is so broad as to be unenforceable, the provision shall be
interpreted to be only so broad as is enforceable.
11.15 Restatement of Prior Agreement. This Agreement amends, restates, and
supersedes in its entirety the Agreement and Plan of Merger entered into as of
the 30th day of November, 1995, between the Parties hereto.
- 45 -
IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be
executed on its behalf and its corporate seal to be hereunto affixed and
attested by officers thereunto as of the day and year first above written.
WFS BANCORP, INC.
ATTEST:
BY /s/ Burton G. Dunlap
-------------------------------------
BURTON G. DUNLAP,
/s/ Robert McGrath President and Chief Executive Officer
- -------------------------------
Secretary
[CORPORATE SEAL]
EMPRISE BANK, WICHITA
ATTEST:
BY /s/ M. D. Michaelis
-----------------------------------
M. D. MICHAELIS,
/s/ Joye B. Haneberg Chairman of the Board
- -------------------------------
Secretary
[CORPORATE SEAL]
- 46 -
AGREEMENT AND PLAN OF MERGER
between
EMPRISE FINANCIAL CORPORATION
Wichita, Kansas
and
WFS BANCORP, INC.
Wichita, Kansas
under the charter of
EMPRISE FINANCIAL CORPORATION
and
under the title of
EMPRISE FINANCIAL CORPORATION
This Agreement and Plan of Merger ("Agreement") is made and entered
into as of the 1st day of April, 1996, by and between EMPRISE FINANCIAL
CORPORATION ("EFC"), a Kansas corporation having its principal office located in
Wichita, Kansas, and WFS BANCORP, INC. ("WFS Bancorp, Inc."), a Delaware
corporation having its principal office located in Wichita, Kansas.
R E C I T A L S
A. Emprise Bank, Wichita, Kansas, and WFS Bancorp, Inc., previously
entered into that certain Amended and Restated Agreement and Plan of Merger
("Amended and Restated Merger Agreement") made and entered into as of the 30th
day of November, 1995, and amended and restated as of the 31st day of January,
1996, pursuant to which a wholly-owned subsidiary of Emprise Bank, Wichita,
Kansas (or of EFC), will merge with and into WFS Bancorp, Inc., with WFS
Bancorp, Inc., as the surviving corporation.
B. Emprise Bank has assigned all its right, title, and interest in and
to the Amended and Restated Merger Agreement to EFC, and EFC has assumed all
obligations of Emprise Bank pursuant to Section 1.5 of the Amended and Restated
Merger Agreement.
EXHIBIT B
1
<PAGE>
C. In accordance with the terms of Sections 1.4 and 1.5 of the Amended
and Restated Merger Agreement, the parties thereto have anticipated a related
merger of WFS Bancorp, Inc., with and into EFC, with EFC as the surviving
corporation effective at or about the same time as the effective time of the
merger under the Amended and Restated Merger Agreement.
D. At and after the effective time of the merger under the terms of the
Amended and Restated Merger Agreement, and immediately prior to the effective
time of the merger under this Agreement, EFC will be the sole owner of all the
issued and outstanding capital stock of WFS Bancorp, Inc.
E. The boards of directors of EFC and WFS Bancorp, Inc., have entered
into this Agreement as a part of the overall reorganization contemplated by the
terms of the Amended and Restated Merger Agreement and are of the opinion that
the transactions described herein are in the best interests of the parties and
their respective shareholders.
NOW, THEREFORE, for and in consideration of the premises, the parties
hereby agree:
SECTION 1.
Subject to the terms and conditions of this Agreement, at the Effective
Time (as defined in Section ), WFS Bancorp, Inc., shall be merged into EFC under
the charter of EFC in accordance with the provisions of Section 252 of the
Delaware General Corporation Law ("DGCL") and Section 6702 of Chapter 17 of the
Kansas Statutes (the "Merger").
SECTION 2.
The Merger shall become effective on the date and at the time the
Certificate of Merger reflecting the Merger shall become effective with the
Secretary of State of the State of Delaware and the Certificate of Merger
reflecting the Merger shall become effective with the Secretary of State of the
State of Kansas (the "Effective Time"). Subject to the terms and conditions
hereof, unless otherwise mutually agreed upon in writing by the chief executive
officer or chief financial officer of each party, EFC shall determine and
designate when the Effective Time occurs, which shall be not more than 10 days
after the last to occur of (i) the effective date (including expiration of any
applicable waiting period) of the last required consent of any regulatory
authority having authority over and approving or exempting the Merger, and (ii)
the date on which the shareholders of WFS Bancorp, Inc., approve this Agreement;
provided, however, that EFC shall not be required to designate a time for the
Effective Time earlier than the business day following the day on which the
merger under the Amended and Restated Merger Agreement becomes effective. The
designation of the Effective Time by EFC shall be made prior to the last to
occur of the foregoing events and not less than 10 days prior to the Effective
Time.
2
<PAGE>
SECTION 3.
The name of the resulting corporation (hereinafter referred to as the
"Surviving Corporation") shall be Emprise Financial Corporation. The articles of
incorporation and bylaws of EFC in effect immediately prior to the Effective
Time shall be the articles of incorporation and bylaws of the Surviving
Corporation. The officers and directors of EFC in office immediately prior to
the Effective Time shall serve as the officers and directors of the Surviving
Corporation from and after the Effective Time in accordance with the bylaws of
the Surviving Corporation.
SECTION 4.
The business of the Surviving Corporation shall be that of a bank
holding company. This business shall be conducted by the Surviving Corporation
at its main office which shall be located at 211 North Broadway - Third Floor,
Wichita, Kansas.
SECTION 5.
At the Effective Time, the issued and outstanding shares of common
stock of EFC shall continue to be all of the issued and outstanding shares of
common stock in the Surviving Corporation without any change. The issued and
outstanding shares of common stock of WFS Bancorp, Inc., shall be canceled and
surrendered, and the sole shareholder thereof immediately prior to the Effective
Time (i.e., EFC) shall receive no consideration other than as set forth in
Section below.
SECTION 6.
All assets of EFC and WFS Bancorp, Inc., as they exist at the Effective
Time of the Merger shall pass to and vest in the Surviving Corporation without
any conveyance or other transfer. The Surviving Corporation shall be responsible
for all of the liabilities of every kind and description of each of the merging
corporations existing as of the Effective Time of the Merger.
SECTION 7.
The respective obligations of each party hereto to perform this
Agreement and consummate the Merger are subject to consummation of the merger
under and in accordance with the terms and provisions of the Amended and
Restated Merger Agreement. In the event of the termination of the Amended and
Restated Merger Agreement for any reason prior to the consummation of such
merger thereunder, this Agreement will automatically terminate and each party
shall be relieved of all obligations hereunder.
3
<PAGE>
SECTION 8.
WFS Bancorp, Inc., shall take no action to secure stockholder approval
of this Agreement prior to the effective time of the merger under the Amended
and Restated Merger Agreement. Since EFC will be the sole stockholder
immediately prior to the Effective Time of the Merger under this Agreement,
there will be no dissenters' rights as contemplated by Section 262 of the DGCL.
SECTION 9.
This Agreement may be terminated by the mutual consent of the board of
directors of both parties, either before or after any shareholder group has
approved this Agreement. Since time is of the essence to this Agreement, if for
any reason the Merger shall not have been consummated by December 31, 1996, the
board of directors of either party may thereafter terminate this Agreement upon
notice in writing to the other party of such termination, in which event all
obligations hereunder by both parties shall be terminated.
SECTION 10.
This Agreement shall be ratified and confirmed by the affirmative vote
of shareholders of each of the merging corporations owning a majority of its
common stock outstanding, at a meeting to be held on the call of the directors
or action adopted by unanimous consent, provided that the shareholder approval
of WFS Bancorp, Inc., shall not occur prior to the effective time of the merger
under the Amended and Restated Merger Agreement.
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
executed on its behalf and its corporate seal to be hereunto affixed and
attested by officers thereunto as of the day and year first above written.
WFS BANCORP, INC.
ATTEST:
BY /s/ Burton Dunlap
-------------------------------
Name: Burton Dunlap
/s/ Lynda J. Woods -------------------------------
-------------------------- Title: President & CEO
Assistant Secretary -------------------------------
"WFS Bancorp, Inc."
[CORPORATE SEAL]
4
<PAGE>
EMPRISE FINANCIAL CORPORATION
ATTEST:
BY /s/ M. D. Michaelis
-------------------------------
M. D. MICHAELIS, President
/s/ Barbara L. Wilcox
-------------------------------
Secretary
"EFC"
[CORPORATE SEAL]
- 5 -
