RESTATED AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER ("Agreement"), is made and entered into
by and among FIRST FEDERAL SAVINGS BANK, a federally-chartered capital stock
thrift institution ("First Federal"), NEW FIRST FEDERAL SAVINGS BANK, a
federally-chartered capital stock thrift institution in the process of
organization ("New Bank"), the sole stockholder of the Holding Company, J.
Xxxxxxx Xxxxxxx (the "Holding Company Stockholder") and THE XXXXX-COLLEGE
STATION FINANCIAL HOLDING COMPANY, a Delaware business corporation (the "Holding
Company"), effective as of the date executed by all of the parties.
WITNESSETH:
WHEREAS, First Federal is a capital stock thrift institution duly organized
and existing under the laws of the United States of America and having its
principal office in Bryan, Texas, with authorized capital stock consisting of
three million shares of common stock, par value $.01 per share ("First Federal
Common Stock"), of which 239,612 shares are issued and outstanding, and one
million shares of serial preferred stock (First Federal Preferred Stock), of
which 87,263 shares are issued and outstanding;
WHEREAS, New Bank is a capital stock thrift institution in the process of
organization under the laws of the United States of America, which is proposed
to be a subsidiary of the Holding Company and to have authorized capital stock
consisting of one million shares of common stock, par value $.01 per share ("New
Bank Stock");
WHEREAS, the Holding Company is a capital stock corporation duly organized
and existing under the laws of Delaware, with authorized capital stock
consisting of three million shares of common stock, par value $.01 per share
("Holding Company Common Stock") of which one share is issued and outstanding,
and one million shares serial preferred stock, of which no shares are issued and
outstanding;
WHEREAS, the Holding Company has issued one share of its common stock to
the Holding Company Stockholder in return for $10.00 cash consideration;
WHEREAS, the Holding Company proposes to purchase one share of the common
stock of New Bank for $10.00;
WHEREAS, it is the desire of the parties to this Agreement to adopt a plan
of reorganization providing for the formation of a thrift institution holding
company; and
WHEREAS, a majority of the respective Boards of Directors of First Federal,
New Bank, and the Holding Company have approved and authorized the execution of
this Agreement pursuant to which the plan of reorganization, including the
merger of New Bank into First Federal, will be implemented;
1
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements herein contained, and in order to prescribe the plan of
reorganization and merger, including its terms and conditions, the mode of
carrying the same into effect, the manner and basis of stockholders of First
Federal exchanging their First Federal Common Stock for Holding Company Common
Stock or selling their First Federal Common Stock and such other details and
provisions as are deemed necessary or proper, the parties hereby agree as
follows:
ARTICLE I
MERGER AND REORGANIZATION
1.1 Subject to the conditions hereinafter set forth, New Bank shall be
merged into First Federal under the Charter of First Federal at the Effective
Date (as defined in Article XI hereof) of the merger (the "Merger"). The Merger
shall be effected pursuant to the provisions of, and with the effect provided
in, the applicable provisions of the laws of the United States of America and
the Rules and Regulations of the Office of Thrift Supervision.
1.2 On the Effective Date, the resulting thrift institution in the Merger
shall be First Federal (hereinafter referred to as the "Surviving Institution"
whenever reference is made to it as of the Effective Date of the Merger or
thereafter) which will continue to operate as a thrift institution under its
present name as "First Federal Savings Bank." The Charter and Bylaws of First
Federal in effect on the Effective Date shall be the Charter and Bylaws of the
Surviving Institution. The established offices and facilities of First Federal
immediately prior to the Merger shall become the established offices and
facilities of the Surviving Institution. The locations of the home office and
any other offices of the Surviving Institution are set forth in Schedule A
attached hereto.
1.3 On the Effective Date of the Merger, New Bank shall cease to exist
separately and shall be merged with and into First Federal in accordance with
the provisions of this Agreement and Plan of Merger and in accordance with the
provisions of applicable laws, rules and regulations, and all of the assets and
property of every kind and character, real, personal and mixed, tangible and
intangible, choses in action, rights and credits then owned by New Bank or which
would inure to it, shall immediately, by operation of law and without any
conveyance or transfer and without any further act or deed, be vested in and
become the property of the Surviving Institution, which shall have, hold and
enjoy the same in its own right as fully and to the same extent as the same were
possessed, held and enjoyed by New Bank prior to such Merger. The Surviving
Institution shall be deemed to be and shall be a continuation of the entity and
identity of New Bank and First Federal and all of the rights and obligations of
New Bank and First Federal shall remain unimpaired and the Surviving
Institution, on the Effective Date of such Merger, shall succeed to all such
rights and obligations and the duties and liabilities connected therewith on
such Effective Date.
1.4 On the Effective Date of the Merger, there will be no holders of
deposit accounts, transaction accounts, savings accounts or certificates of
deposit issued by New Bank. Holders of deposit accounts, transaction accounts,
savings accounts or certificates of deposit of First Federal as of the Effective
Date of the Merger shall continue to be holders of the same interest of the
Surviving Institution without change as to withdrawal value or other rights. No
existing deposit
2
account, transaction account, savings account or certificate of deposit holder
shall have any of his rights impaired by virtue of the Merger contemplated
hereby.
1.5 The directors and officers of the Surviving Institution on the
Effective Date shall be those persons who are directors and officers,
respectively, of First Federal immediately before the Effective Date.
Information with respect to the directors of the Surviving Institution is set
forth in Schedule B attached hereto. The committees of the Board of Directors of
the Surviving Institution on the Effective Date shall be the same as, and shall
be composed of the same persons who were serving on, committees appointed by the
Board of Directors of First Federal as they exist immediately before the
Effective Date. The committees, if any, of officers of the Surviving Institution
on the Effective Date shall be the same as, and shall be composed of the same
officers who were serving on, the committees of officers of First Federal as
they exist immediately before the Effective Date.
1.6 Except as expressly prohibited by applicable laws, all corporate acts,
plans, policies, applications, agreements, orders, registrations, licenses,
approvals and authorizations of First Federal and New Bank, their respective
stockholders, Boards of Directors, committees elected or appointed by their
Boards of Directors, and their respective officers and agents, which were valid
and effective immediately before the Effective Date, shall be taken for all
purposes at and after the Effective Date as the acts, plans and policies,
applications, agreements, orders, registrations, licenses, approvals and
authorizations of the Surviving Institution and shall be as effective and
binding thereon as the same were with respect to First Federal and New Bank
immediately before the Effective Date.
ARTICLE II
CONVERSION, EXCHANGE AND CANCELLATION OF SHARES
2.1 Conversion of First Federal Common Stock. At the Effective Date, by
virtue of the Merger and without any action on the part of the holder thereof,
the Holding Company, First Federal or any other party to the Agreement, First
Federal Common Stock issued and outstanding immediately prior to the Effective
Date shall cease to be outstanding and shall, subject to the provisions of
Sections 2.2 and 2.3 hereof, be converted into and become the right to receive
either:
(a) such number of shares of Holding Company Common Stock
equal to the product of 2.5 multiplied by the number of shares of
First Federal Common Stock to be converted ("Stock Distribution");
(b) an amount in cash equal to $24.07 per share (the "Cash
Distribution"),
as the holder thereof shall elect or be deemed to have elected as provided in
Section 2.2 of this Agreement (the aggregate of the Cash Distributions and the
Stock Distributions payable or issuable pursuant to the Merger is sometimes
hereinafter referred to as the "Merger Consideration"); provided, however, that
any shares of First Federal Common Stock held by First Federal, other
3
than in a fiduciary capacity or as a result of debts previously contracted,
shall be cancelled and shall not be exchanged for the Merger Consideration.
2.2 Election Procedures.
(a) An election form and other appropriate and customary transmittal
materials (which shall specify that delivery shall be effected, and risk of loss
and title to the certificates theretofore representing First Federal Common
Stock shall pass, only upon proper delivery of such certificates to the exchange
agent designated by Holding Company, or to the Holding Company in its capacity
as exchange agent, as determined by the Holding Company (the "Exchange Agent"),
in such form as First Federal and the Holding Company shall mutually agree
("Election Form") shall be mailed approximately 25 days prior to the anticipated
Effective Date or on such other date as First Federal and the Holding Company
shall mutually agree (the "Mailing Date") to each holder of record of First
Federal Common Stock as of five business days prior to the Mailing Date
("Election Form Record Date").
(b) Each Election Form shall specify the amount of Merger
Consideration receivable for each share of First Federal Common Stock in the
Cash Distribution and the Stock Distribution and shall permit a holder to elect
to receive, as provided in Section 2.2 of this Agreement, (i) the Stock
Distribution for all of his shares (in which case, such holder's shares shall be
deemed to be and shall be referred to herein as "Stock Election Shares"), (ii)
the Cash Distribution for certain designated shares (in which case, such
holder's shares so designated shall be deemed to be and shall be referred to
herein as "Cash Election Shares") with the remaining shares being converted to
the Stock Distribution as Stock Election Shares, or (iii) the Cash Distribution
for all of his shares.
(c) Any shares of First Federal Common Stock with respect to which the
holder thereof shall not, as of the Election Deadline (as defined below), have
made an election to receive either the Cash Distribution or the Stock
Distribution (such holder's shares being deemed to be and shall be referred to
herein as "No Election Shares") by submission to the Exchange Agent of an
effective, properly completed Election Form shall be deemed to be Cash Election
Shares. ^"Election Deadline" means 5:00 p.m., local time, on the 20th day
following the Mailing Date, or such other time and date as the Holding Company
and First Federal shall mutually agree.
(d) First Federal shall promptly make available one or more Election
Forms as may be reasonably requested by all persons who become holders (or
beneficial owners) of First Federal Common Stock between the Election Form
Record Date and close of business on the business day prior to the Election
Deadline, and First Federal shall provide to the Exchange Agent all information
reasonably necessary for it to perform as specified herein.
(e) Any such election shall have been properly made only if the
Exchange Agent shall have actually received a properly completed Election Form
by the Election Deadline. An Election Form shall be deemed properly completed
only if accompanied by one or more certificates (or customary affidavits and
indemnification regarding the loss or destruction of such certificates or the
guaranteed delivery of such certificates) representing all shares of First
Federal Common Stock covered by such Election Form, together with duly executed
transmittal materials included in the Election Form ^. Any Election Form may be
revoked or changed by the person submitting such
4
Election Form at or prior to the Election Deadline. In the event an Election
Form is revoked prior to the Election Deadline, the shares of First Federal
Common Stock represented by such Election Form shall become No Election Shares
and First Federal shall cause the certificates representing First Federal Common
Stock to be promptly returned without charge to the person submitting the
Election Form upon written request to that effect from the person who submitted
the Election Form. Subject to the terms of this Agreement and of the Election
Form, the Exchange Agent shall have reasonable discretion to determine whether
any election, revocation or change has been properly or timely made and to
disregard immaterial defects in the Election Forms, and any good faith decisions
of the Exchange Agent regarding such matters shall be binding and conclusive.
Neither the Holding Company nor the Exchange Agent shall be under any obligation
to notify any person of any defect in an Election Form.
(f) Allocation Procedures. Within ten business days after the
Effective Date, or as soon thereafter as practicable, the Holding Company shall
cause the Exchange Agent to effect the allocation among the holders of First
Federal Common Stock of rights to receive Holding Company Common Stock or cash
in the Merger as follows:
If shares of Holding Company Common Stock that would be issued
in the Merger upon conversion of the Stock Election Shares represents
less than 20% of the shares of First Federal Common Stock outstanding
(the "Minimum Stock Value"), then the Holding Company will be permitted
to allocate cash and stock pro rata to those shareholders electing the
Cash Distribution (other than Dissenting Shares as defined in Section
2.3) in such amount as would result in at least 20% of First Federal
Common Stock to be exchanged for Holding Company Common Stock; provided,
however, that the Holding Company may pay cash for First Federal Common
Stock which, if exchanged for Holding Company Common Stock in the Merger
would result in adverse accounting treatment, as determined by
independent accountants for the Holding Company, and that any pro rata
distribution of cash and stock pursuant to this Section ^ shall be based
on the amount Stock Election Shares excluding any Stock Election Shares
exchangeable for cash due to such accounting considerations. For
purposes of determining the Minimum Stock Value under this Section ^,
all Dissenting Shares shall be deemed Cash Election Shares.
2.3 Dissenting Shares. Any record holder of First Federal's Common Stock
may require First Federal to pay the fair or appraised value of his or her First
Federal Common Stock, determined as of the Effective Date of the Merger, by
complying with Section 552.14 of the Office of Thrift Supervision ("OTS") Rules
and Regulations. The computation of fair or appraised value of such shares (the
"Dissenting Shares") will exclude any element of value arising from the
accomplishment or expectation of the Merger. Notwithstanding any other provision
of this Agreement, any Dissenting Shares shall not, after the Effective Date, be
entitled to vote for any purpose or receive any dividends or other distributions
and shall be entitled only to such rights as are afforded in respect of
Dissenting Shares pursuant to the OTS Regulations.
2.4 Exchange Procedures.
(a) In accordance with Section 2.2(a) herein, holders of record of
certificates formerly representing shares of First Federal Common Stock (the
"Certificates") shall be instructed
5
to tender such Certificates to the Exchange Agent pursuant to a letter of
transmittal that the Exchange Agent shall deliver or cause to be delivered to
such holders, which letter of transmittal shall be included with the Election
Forms distributed pursuant to Section 2.2(a).
(b) The Holding Company or, at the election of the Holding Company, the
Exchange Agent, shall accept Certificates upon compliance with such reasonable
terms and conditions as the Holding Company or the Exchange Agent may impose to
effect an orderly exchange thereof in accordance with customary exchange
practices. All Certificates shall be appropriately endorsed or accompanied by
such instruments of transfer as the Holding Company or the Exchange Agent may
require.
(c) Each outstanding Certificate shall until duly surrendered to the
Holding Company or the Exchange Agent be deemed to evidence ownership of the
Merger Consideration into which the First Federal Common Stock previously
represented by such Certificate shall have been converted pursuant to this
Agreement.
(d) Subject to Section 2.3, after the Effective Date, holders of
Certificates shall cease to have rights with respect to First Federal Common
Stock previously represented by such Certificates, and their sole rights shall
be to exchange such Certificates for the Merger Consideration provided for in
this Agreement. After the Effective Date, there shall be no further transfer on
the records of First Federal of Certificates, and if such Certificates are
presented to First Federal for transfer, they shall be cancelled against
delivery of the Merger Consideration provided therefor in this Agreement.
Neither the Exchange Agent nor the Holding Company shall be obligated to deliver
the Merger Consideration to which any former holder of First Federal Common
Stock is entitled as a result of the Merger until such holder surrenders the
Certificates as provided herein. No dividends declared will be remitted to any
person entitled to receive Holding Company Common Stock under this Agreement
until such person surrenders the Certificates representing the right to receive
such Holding Company Common Stock, at which time such dividends shall be
remitted to such person, without interest and less any taxes that may have been
imposed thereon. ^ Neither the Exchange Agent nor any party to this Agreement
nor any affiliate thereof shall be liable to any holder of stock represented by
any Certificate for any consideration paid to a public official pursuant to
applicable abandoned property, escheat or similar laws. The Holding Company and
the Exchange Agent shall be entitled to rely upon the stock transfer books of
First Federal to establish the identity of those persons entitled to receive the
Merger Consideration specified in this Agreement, which books shall be
conclusive with respect thereto. In the event of a dispute with respect to
ownership of stock represented by any Certificate, the Holding Company and the
Exchange Agent shall be entitled to deposit any Merger Consideration represented
thereby in escrow with an independent third party and thereafter be relieved
with respect to any claims thereto.
2.5 No Fractional Shares. Notwithstanding any other provision of this
Agreement, neither certificates nor scrip for fractional shares of Holding
Company Common Stock shall be issued in the Merger. Each holder who otherwise
would have been entitled to a fraction of a share of Holding Company Common
Stock shall receive the number of shares rounded up to the next whole number of
shares.
2.6 First Federal Preferred Shares. First Federal preferred stock
currently issued and outstanding will remain issued and outstanding First
Federal Preferred Stock. The Merger will not
6
change any of the terms or conditions of First Federal Preferred Stock, and
holders of First Federal Preferred Stock will not have any election in the
Merger.
2.7 New Bank Stock. The outstanding share of New Bank Stock issued to
the Holding Company shall be cancelled and converted into a share of First
Federal Common Stock.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF HOLDING COMPANY
The Holding Company hereby represents and warrants as follows:
3.1 The Holding Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware. At the
Effective Date, the Holding Company will have corporate power to carry on its
business as then to be conducted and will be qualified to do business in every
jurisdiction in which the character and location of the assets to be owned by it
or the nature of the business to be transacted by it require qualification.
3.2 The Holding Company has no subsidiaries other than New Bank at the
date of this Agreement. Between the date hereof and the Effective Date, the
Holding Company will not create or acquire any subsidiaries, other than New
Bank, without the consent of First Federal.
3.3 The authorized capital stock of the Holding Company consists on the
date hereof of three million shares of Holding Company Common Stock, par value
$.01 per share, and one million shares of serial preferred stock. Except as set
forth above or as contemplated by this Agreement or necessary for the
effectuation of the Merger, as of the date hereof, the Holding Company has one
share of its capital stock issued and outstanding and does not have any
outstanding subscriptions, options or other agreements or commitments obligating
it to issue shares of its capital stock.
3.4 Compliance with the terms and provisions of this Agreement by the
Holding Company will not conflict with or result in a breach of any of the
terms, conditions or provisions of any judgment, order, injunction, decree or
ruling of any court or governmental authority, domestic or foreign, or of any
agreement or instrument to which the Holding Company is a party, or constitute a
default thereunder.
3.5 The execution, delivery and performance of this Agreement have been
duly authorized by the Board of Directors of the Holding Company and have been
approved by the Holding Company Common Stockholders.
3.6 The Holding Company has complete and unrestricted power to enter
into and to consummate the transactions contemplated by this Agreement, subject
to approval of this Agreement and the Merger by the Holding Company Stockholder
and the provisions of Section 7.3 hereof.
3.7 On or prior to the Effective Date, the Holding Company will have
available the funds necessary to convert and exchange the outstanding First
Federal Common Stock to be converted and exchanged pursuant to the Merger as
provided herein.
7
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF FIRST FEDERAL
First Federal hereby represents and warrants as follows:
4.1 First Federal is a capital stock thrift institution duly organized,
validly existing and in good standing under the laws of the United States of
America, and is duly authorized to carry on its business as it is now being
conducted.
4.2 The authorized capital stock of First Federal consists on the date
hereof of three million shares of First Federal Common Stock, par value $.01 per
share, of which 239,612 shares are issued and outstanding, and one million
shares of serial preferred stock, of which 87,263 shares are issued and
outstanding.
4.3 Compliance with the terms and provisions of this Agreement by First
Federal will not conflict with, constitute a default under or result in a breach
of any of the terms, conditions or provisions of any judgment, order,
injunction, decree or ruling of any court or governmental authority, domestic or
foreign, or of any agreement or instrument to which First Federal is a party.
4.4 The execution, delivery and performance of this Agreement have been
duly authorized by the Board of Directors of First Federal.
4.5 First Federal has complete and unrestricted power to enter into and
to consummate the transactions contemplated by this Agreement, subject to the
provisions of Section 7.3 hereof.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF NEW BANK
New Bank hereby represents and warrants as follows:
5.1 New Bank, at the direction of the Holding Company, will apply to
the Office of Thrift Supervision to be chartered as a capital stock thrift
institution, and immediately before the Effective Date will be duly organized,
validly existing and in good standing under the laws of the United States of
America, and duly authorized to carry on the business of an interim federal
thrift institution.
5.2 The authorized capital stock of New Bank is proposed to consist of
one million shares of New Bank Stock, par value $.01 per share. Except for the
share of New Bank Stock issued to the Holding Company for the effectuation of
the Merger, prior to the Merger, New Bank will not have any shares of its stock
issued and outstanding. There are no outstanding subscriptions, options or other
arrangements or commitments obligating New Bank to issue any shares of its
capital stock.
5.3 Compliance with the terms and provisions of this Agreement by New
Bank will not conflict with, constitute a default under or result in a breach of
any of the terms, conditions or provisions of any judgment, order, injunction,
decree or ruling of any court or governmental
8
authority, domestic or foreign, or of any agreement or instrument to which New
Bank is, or upon organization will be, a party.
5.4 Prior to the Merger, the execution, delivery and performance of
this Agreement will be duly authorized by the Board of Directors of New Bank and
will be approved by the Holding Company as the sole stockholder of New Bank.
5.5 New Bank has complete and unrestricted power to enter into and to
consummate the transaction contemplated by this Agreement, subject to the
approval of this Agreement and the Merger by the Holding Company as sole
stockholder of New Bank and the provisions of Section 7.3 hereof.
ARTICLE VI
OBLIGATIONS OF THE PARTIES PENDING THE EFFECTIVE DATE
6.1 Prior to the Effective Date, (i) New Bank shall complete its
organization and have directors who shall be duly elected and qualified, (ii)
the Holding Company shall complete its organization and have directors who shall
be duly elected and qualified, and (iii) this Agreement shall be duly submitted
to the stockholders of First Federal for the purpose of considering and acting
upon this Agreement in the manner required by law. Each party shall use its best
efforts to obtain the requisite approvals of this Agreement and the transactions
contemplated herein and, after obtaining such approval, the parties through
their respective officers and directors, shall execute and file with the
appropriate regulatory authorities all documents and papers, and the parties
shall take every reasonable action, necessary to comply with and to secure such
approval of this Agreement and the transactions contemplated herein as may be
required by all applicable statutes, rules and regulations.
ARTICLE VII
CONDITIONS PRECEDENT TO THE CONSUMMATION OF
THE MERGER AND REORGANIZATION
The obligations of the parties hereto to consummate the Merger and the
reorganization contemplated hereby shall be subject to the conditions that on or
before the Effective Date:
7.1 Each of the parties hereto shall have performed and complied with
all of its obligations hereunder which are to be complied with or performed on
or before the Effective Date.
7.2 This Agreement and related transactions contemplated hereby shall
have been duly and validly authorized, approved and adopted at a meeting of
stockholders duly and properly called for such purpose by First Federal by an
affirmative vote of at least 50 percent of the outstanding voting stock of First
Federal plus one affirmative vote, all in accordance with the applicable
regulations of the Office of Thrift Supervision.
9
7.3 Orders, consents and approvals, in form and substance reasonably
satisfactory to all the parties hereto, shall have been entered by the Office of
Thrift Supervision, (or there shall have been received satisfactory assurance
that such orders, consents or approvals are not required), granting the
authority necessary for consummation of the transactions contemplated by this
Agreement pursuant to the provisions of the Rules and Regulations of the Office
of Thrift Supervision, all other requirements prescribed by law and the rules
and regulations of any other regulatory authority having jurisdiction over the
transactions contemplated herein shall have been satisfied.
7.4 There shall have been received from Xxxxx, Xxxxxx & Company LLP,
accountants to First Federal, an opinion to the effect that:
1. No gain or loss will be recognized on the receipt of the Holding
Company Common Stock by First Federal common shareholders who
receive solely Holding Company Common Stock in exchange for
First Federal Common Stock (IRC Section 351(a)). Gain, but not
loss, will be recognized by First Federal common shareholders
who receive both Holding Company Common Stock and cash in
exchange for First Federal Common Stock, but in an amount not in
excess of the cash received (IRC Section 351(b)).
2. No gain or loss will be recognized by the Holding Company on the
receipt of cash and First Federal Common Stock solely in
exchange for shares of Holding Company Common Stock (IRC Section
1032).
3. The basis of the Holding Company Common Stock received by a
First Federal common shareholder will be the same as the
adjusted basis of the First Federal Common Stock surrendered in
exchange therefor, decreased by the amount of any cash received,
and increased by any gain recognized in the exchange (IRC
Section 358).
4. The holding period of the Holding Company Stock received by a
First Federal common shareholder in exchange for the transfer of
First Federal Common Stock will include the period during which
the First Federal Common Stock surrendered in exchange therefor
was held, provided that the First Federal Common Stock was held
as a capital asset on the date of the exchange (IRC Section
1223(1)).
5. The basis of the First Federal Common Stock received by the
Holding Company will be the same as the basis of the First
Federal Common Stock in the hands of the First Federal common
shareholders immediately prior to the exchange, increased by any
gain recognized by the First Federal common shareholders in the
exchange (IRC Section 362(a)).
6. The holding period of the First Federal Common Stock received by
Holding Company will include the period during which the First
Federal Common Stock was held by the First Federal common
shareholders (IRC Section 1223(2)).
7. Gain or loss, if any, will be recognized by a First Federal
common shareholder who receives solely cash in exchange for the
transfer of First Federal Common Sock.
10
7.6 Holders of no more than 80% of First Federal Common Stock shall
elect to receive cash as Merger Consideration (approximately $4.6 million of
cash elections).
7.7 The Holding Company will have successfully completed a public
offering for at least 150,000 shares of Holding Company Common Stock, and at
least $3,400,000 of Units, each Unit consisting of debentures and warrants to
purchase Holding Company Common Stock.
7.8 No good faith action, suit or proceeding shall have been instituted
or shall have been threatened before any court or other governmental body or by
any public authority to restrain, enjoin or prohibit the Merger and
reorganization contemplated herein, or which might restrict the operation of the
business of the Surviving Institution or the ownership of the capital stock of
the Surviving Institution or the exercise of any rights with respect thereto by
the Holding Company, or subject any of the parties hereto or any of their
directors or officers to any liability, fine, forfeiture, or penalty on the
grounds that the transactions contemplated hereby, the parties hereto or their
directors or officers, have breached or will breach any applicable law or
regulation, or have otherwise acted improperly in connection with the
transactions contemplated hereby, and with respect to which the parties hereto
have been advised by counsel that, in the opinion of such counsel, such action,
suit or proceeding raises substantial questions of law or fact which could
reasonably be decided adversely to any party hereto or its directors or
officers.
ARTICLE VIII
ADDITIONAL CONDITIONS PRECEDENT
8.1 Each obligation of the Holding Company and New Bank to be performed
on or prior to the Effective Date shall be subject to the satisfaction, on or
before the Effective Date, of the following additional conditions:
(a) The representations and warranties made by First Federal ^
in this Agreement shall be true as though such representations and
warranties had been made or given on and as of the Effective Date; and
(b) This Agreement and the transactions contemplated hereby
shall have been duly and validly authorized, approved and adopted by
First Federal. ^
8.2 Each obligation of First Federal to be performed on or prior to the
Effective Date shall be subject to the satisfaction, on or before the Effective
Date, of the following additional conditions:
(a) The representations and warranties made by the Holding
Company and by New Bank contained in this Agreement shall be true as
though such representations and warranties had been made or given at
and as of the Effective Date;
(b) This Agreement and the transactions contemplated hereby
shall have been duly and validly authorized, approved and adopted by
the Holding Company and by New Bank.^
11
ARTICLE IX
AMENDMENTS
First Federal, the Holding Company and New Bank, by mutual consent of
their respective Boards of Directors or incorporators, as the case may be, to
the extent permitted by law, may amend, modify, supplement and interpret this
Agreement in such manner as may be mutually agreed upon by them in writing at
any time before or after the approval and adoption thereof by the stockholders
of First Federal, provided, however, that no such amendment, modification,
supplement or interpretation shall have a materially adverse impact on First
Federal or its stockholders except with the approval of the stockholders of
First Federal.
ARTICLE X
TERMINATION AND ABANDONMENT
10.1 Anything contained in this Agreement to the contrary
notwithstanding, this Agreement may be terminated and the Merger and
reorganization abandoned at any time (whether before or after the approval and
adoption thereof by the stockholders of First Federal) prior to the Effective
Date:
(a) By mutual consent of the parties hereto;
(b) By the Holding Company or New Bank, if any condition set
forth in Sections 7.1 through 7.8 of Article VII or Section 8.1 of
Article VIII has not been met or has not been validly waived or if; or
(c) By First Federal, if any condition set forth in Sections 7.1
through 7.8 of Article VII or Section 8.2 of Article VIII has not been
met or has not been validly waived or if the holders of more than 10
percent of the outstanding voting stock of First Federal deliver
properly to First Federal a demand for appraisal and payment for
shares pursuant to 12 C.F.R. ss. 552.14.
10.2 An election by a party hereto to terminate this Agreement and
abandon the Merger as provided in Section 10.1 shall be exercised on behalf of
such thrift institution or corporation by its Board of Directors or
incorporators, as may be the case.
10.3 In the event of the termination of this Agreement pursuant to the
provisions of Section 10.1 hereof, this Agreement shall become void and have no
effect and create no liability on the part of any of the parties hereto or their
respective incorporators, directors, officers or stockholders in respect to this
Agreement.
10.4 Any of the terms or conditions of this Agreement (other than the
necessary approvals of stockholders and government authorities) may be waived at
any time by the party which is entitled to the benefit thereof, by action taken
by its Board of Directors; provided, however, that such action shall be taken
only if, in the judgment of the Board of Directors taking the action, such
waiver will
12
not have a materially adverse effect on the benefits intended under this
Agreement to be afforded to the stockholders of First Federal.
ARTICLE XI
EFFECTIVE DATE
The effective date of the Merger ("Effective Date") shall be the last
day of the calendar month during which the last to occur of the following events
takes place: (i) the Merger is approved by the Office of Thrift Supervision and
the Articles of Combination are executed by the Office of Thrift Supervision,
(ii) all other required regulatory approvals have been obtained, and (iii) all
other conditions to the Merger herein set forth have been met. The Boards of
Directors of First Federal, New Bank and the Holding Company each specifically
and expressly delegate to their respective chief executive officers the
authority to change, by mutual consent of such officers, the Effective Date of
the Merger if necessary to properly and efficiently accomplish the Merger.
However, in no event shall the Merger become effective unless and until approved
by the Office of Thrift Supervision.
ARTICLE XII
TERMINATION OF REPRESENTATIONS AND
WARRANTIES AND CERTAIN AGREEMENTS
The respective representations, warranties, covenants and agreements
of the parties hereto in Articles III, IV and V hereof shall expire with, and be
terminated and extinguished by, the Merger and reorganization pursuant to this
Agreement at the time of the consummation thereof on the Effective Date. None of
the parties shall be under any liability whatsoever with respect to any such
representation, warranty, covenant or agreement which does not survive the
Merger and reorganization, it being intended that the sole remedy of the parties
for a breach of any such representation, warranty, covenant or agreement shall
be to elect not to proceed with the Merger and reorganization if such breach has
resulted in the failure to satisfy a condition precedent to such party's
obligation to consummate the transactions contemplated hereby.
ARTICLE XIII
MISCELLANEOUS
13.1 This Agreement embodies the entire agreement among the parties
and there have been and are no agreements, representations or warranties among
the parties other than those set forth or provided for herein.
13.2 Any number of counterparts hereof may be executed and each such
counterpart shall be deemed to be an original instrument, but all such
counterparts together shall constitute but one instrument.
13
13.3 Any notice or waiver to be given to any party shall be in writing
and shall be deemed to have been duly given if delivered, mailed, or sent by
prepaid telegram, addressed to such party at 0000 Xxxxx Xxxxxx, Xxxxx, Xxxxx
00000.
13.4 The captions contained in this Agreement are solely for
convenient reference and shall not be deemed to affect the meaning or
interpretation of any paragraph hereof.
13.5 First Federal will pay all fees and expenses incurred in
connection with the transactions contemplated by this Agreement.
14
IN WITNESS WHEREOF, First Federal, New Bank and the Holding Company
each under the authority of its Board of Directors, ^ have caused this Agreement
to be executed with the intent to be legally bound hereby.
FIRST FEDERAL SAVINGS BANK
ATTEST:
By:/s/ Xxxxxxx Xxxxxxx By:/s/ J. Xxxxxxx Xxxxxxx
------------------------ -------------------------------------
Xxxxxxx Xxxxxxx, Secretary J. Xxxxxxx Xxxxxxx,
President and Chief Executive Officer
Date: __________________________ Date: ___________________________
NEW FIRST FEDERAL SAVINGS
ATTEST: BANK
By:/s/ Xxxxxxx Xxxxxxx By:/s/J. Xxxxxxx Xxxxxxx
-------------------------- -------------------------------------
Xxxxxxx Xxxxxxx, Secretary J. Xxxxxxx Xxxxxxx
President and Chief Executive Officer
Date: Date:
ATTES THE XXXXX-COLLEGE STATION
FINANCIAL HOLDING COMPANY
By:/s/ Xxxxxxx Xxxxxxx By:/s/ J. Xxxxxxx Xxxxxxx
-------------------------- -------------------------------------
Xxxxxxx Xxxxxxx, Secretary J. Xxxxxxx Xxxxxxx
President and Chief Executive Officer
Date: Date:
Witness:
/s/ Xxxxxxx Xxxxxxx /s/ J. Xxxxxxx Xxxxxxx
------------------------------ ----------------------------------------
Xxxxxxx Xxxxxxx J. Xxxxxxx Xxxxxxx
Date: __________________________ Date: ___________________________
15
SCHEDULE A
OFFICES OF SURVIVING INSTITUTION
MAIN OFFICE
-----------
0000 Xxxxx Xxxxxx
Xxxxx, Xxxxx 00000
BRANCH OFFICE
-------------
0000 Xxxxxxxx
Xxxxxxx Xxxxxxx, Xxxxx
LOAN PRODUCTION OFFICES
-----------------------
000 X. Xxxxxx Xxxxx Xxxxx
Xxxx, Xxxxx 00000
000 Xxxxxx Xxxx, Xxxxx 000X
Xxxxxxxxxx, Xxxxx 00000
16
SCHEDULE B
DIRECTORS OF SURVIVING INSTITUTION
Term
Name Address Expires
---- ------------------- -------
J. Xxxxxxx Xxxxxxx 0000 Xxxxx Xxxxxx 0000
Xxxxx, Xxxxx 00000
Xxx Xxxxx 0000 Xxxxx Xxxxxx 0000
Xxxxx, Xxxxx 00000
Xxxxxxx Xxxxxxx 0000 Xxxxx Xxxxxx 0000
Xxxxx, Xxxxx 00000
Xxxxxx Xxxxxx 0000 Xxxxx Xxxxxx 0000
Xxxxx, Xxxxx 00000
Xxxxxx X. Xxxxxxxx 0000 Xxxxx Xxxxxx 0000
Xxxxx, Xxxxx 00000
Xxxxxx X. Xxxxxxx 0000 Xxxxx Xxxxxx 0000
Xxxxx, Xxxxx 00000
Xxxxxxx X. Xxxxxxx 0000 Xxxxx Xxxxxx 0000
Xxxxx, Xxxxx 00000
Xxxx X. Xxxxxx, Xx. 0000 Xxxxx Xxxxxx 0000
Xxxxx, Xxxxx 00000
Xxxx Xxxxxx 0000 Xxxxx Xxxxxx 0000
Xxxxx, Xxxxx 00000
J. Xxxxxx Xxxxxxx 0000 Xxxxx Xxxxxx 0000
Xxxxx, Xxxxx 00000
Successor or substitute directors may be named, subject to compliance
with the requirements of applicable law and the Charter and Bylaws of the
Surviving Institution.
17
