Exhibit 2.3
SUBSIDIARY AGREEMENT AND PLAN OF
MERGER
SUBSIDIARY AGREEMENT AND PLAN OF
MERGER (this “Agreement”), dated as of
September 2, 2005, between First Community Bank formerly First
State Bank N.M. (the “Buyer Bank”), a New Mexico state
chartered bank and a wholly owned subsidiary of First State
Bancorporation, a New Mexico corporation (“Buyer”), and
AccessBank (the “Bank”), a federal savings association
and a wholly owned subsidiary of Access Anytime Bancorp, Inc., a
Delaware corporation (the “Company”). The principal
banking office of the Buyer Bank is located at 7900 Jefferson N.E.,
Albuquerque, New Mexico. The principal banking office of the Bank
is 801 Pile Street, Clovis, New Mexico.
WHEREAS, the Boards of Directors of
the Buyer and the Company have approved, and deem it advisable to
consummate, the business combination transaction set forth in the
Agreement and Plan of Merger, dated as of the date hereof (the
“Parent Merger Agreement”), by and among the Buyer, the
Company and the Bank, pursuant to which, among other things, the
Company will merge with and into the Buyer (the “Parent
Merger”); and
WHEREAS, not less than a majority of
the entire Board of Directors of each of the Buyer Bank and the
Bank has approved, and deemed it advisable to consummate, the
merger of the Bank with and into the Buyer Bank (the
“Subsidiary Merger”) provided for herein, in accordance
with the provisions of N.M. Stat. Ann.
§ 58-4-4.
NOW, THEREFORE, in consideration of
the foregoing and the respective representations, warranties,
covenants and agreements set forth herein and in the Parent Merger
Agreement, and intending to be legally bound hereby, the parties
hereto agree as follows:
ARTICLE I
THE MERGER
1.1 Effective Time of the
Subsidiary Merger . Subject to the provisions of this
Agreement, the Subsidiary Merger shall become effective in
accordance with the terms of the Certificate of Merger (the
“Certificate of Merger”) to be issued by the Director
of the New Mexico Financial Institution Division. The term
“Subsidiary Merger Effective Time” shall mean the date
and time when the Subsidiary Merger becomes effective, as specified
on the Certificate of Merger, which shall be immediately following
the effective time of the Parent Merger.
1.2 Closing . Notwithstanding
anything to the contrary contained in the Parent Merger Agreement,
the closing of the Subsidiary Merger will take place immediately
following the Parent Merger on the date and at the location
specified in the Parent Merger Agreement or at such other time,
date or place as may be agreed to by the parties hereto (the
“Subsidiary Merger Closing Date”).
1.3 Effects of the Merger .
(a) At the Subsidiary Merger Effective Time, (i) the
separate existence of the Bank shall cease and the Bank shall be
merged with and into the Buyer Bank (the Buyer Bank is sometimes
referred to herein as the “Surviving Bank”),
(ii) the Articles of Incorporation of the Buyer Bank as in
effect immediately prior to the Subsidiary Merger Effective Time
shall be the Articles of Incorporation of the Surviving Bank until
duly amended in accordance with applicable law, (iii) the name
of the Surviving Bank shall be “First Community Bank,”
(iv) the Bylaws of the Buyer Bank as in effect immediately
prior to the Subsidiary Merger Effective Time shall be the Bylaws
of the Surviving Bank, (v) the offices of the Bank and Buyer
Bank established and authorized immediately prior to the Subsidiary
Merger Effective Time shall become established and authorized
offices of the Surviving Bank and (vi) the directors and
executive officers of the Buyer Bank immediately prior to the
Subsidiary Merger Effective Time shall be the directors and
executive officers of the Surviving Bank, each to hold office in
accordance with the Articles of Incorporation and Bylaws of the
Surviving Bank until their respective successors are duly elected
or appointed and qualified.
(b)
At and after the Subsidiary Merger Effective Time, the Subsidiary
Merger shall have all the effects set forth in N.M. Stat. Ann.
§ 58-4-8 and the Surviving Bank shall be liable for all
liabilities of Bank.
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ARTICLE II
CAPITAL STOCK OF THE BANK, PARENT
BANK
AND THE SURVIVING BANK
2.1 Bank Capital Stock . At
the Subsidiary Merger Effective Time, by virtue of the Subsidiary
Merger and without any action on the part of the holder of any
shares of common stock, $0.01 par value per share, of the Bank (the
“Bank Common Stock”), all issued and outstanding shares
of Bank Common Stock shall automatically be cancelled and retired
and shall cease to exist and no consideration shall be delivered in
exchange therefor. Any shares of Bank Common Stock outstanding and
held by a person who has not voted in favor of the Subsidiary
Merger or consented thereto in writing and who has properly
demanded appraisal for such shares shall be handled in accordance
with the provisions of N.M. Stat. Ann.
§ 58-4-10.
2.2 Buyer Bank Common Stock .
The shares of common stock, $100 par value per share, of the Buyer
Bank issued and outstanding immediately prior to the Subsidiary
Merger Effective Time shall remain outstanding and unchanged after
the Subsidiary Merger.
2.3 Capital Stock of Surviving
Bank . The authorized capital stock of the Surviving Bank shall
be 45,000 shares of common stock, par value $100 per share, of
which there will be 22,500 shares issued and outstanding, and no
shares of preferred stock.
ARTICLE III
COVENANTS
3.1 Covenants of the Bank and the
Buyer Bank . During the period from the date of this Agreement
and continuing until the Subsidiary Merger Effective Time, each of
the parties hereto agrees to observe and perform all agreements and
covenants of Buyer and the Company in the Parent Merger Agreement
that pertain or are applicable to the Buyer Bank and the Bank,
respectively. Each of the parties hereto agrees to use reasonable
best efforts to take, or cause to be taken, all action and to do,
or cause to be done, all things necessary, proper or advisable
under applicable laws and regulations to consummate and make
effective the transactions contemplated by this Agreement, subject
to and in accordance with the applicable provisions of the Parent
Merger Agreement.
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ARTICLE IV
CONDITIONS PRECEDENT
4.1 Conditions to Each
Party’s Obligation to Effect the Subsidiary Merger . The
respective obligations of each party to effect the Subsidiary
Merger shall be subject to the satisfaction prior to the Subsidiary
Merger Closing Date of the following conditions:
(a)
Consummation of Parent Merger . The Parent Merger shall have
been consummated in accordance with the terms and conditions of the
Parent Merger Agreement.
(b)
No Injunctions or Restraints; Illegality . No order,
injunction or decree issued by any court or agency of competent
jurisdiction or other legal restraint or prohibition preventing the
consummation of the Subsidiary Merger shall be in effect. No
statute, rule, regulation, order, injunction or decree shall have
been enacted, entered, promulgated or enforced by any Governmental
Entity which prohibits, restricts or makes illegal the consummation
of the Subsidiary Merger.
(c)
Stockholder Approvals . This Agreement and the
