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EXHIBIT 2(i)
AGREEMENT AND PLAN OF REORGANIZATION
This is an AGREEMENT dated December 12, 1994, between National City
Bancshares, Inc. (hereinafter called "NCBE") and White County Bank (hereinafter
called "White County").
WITNESSETH:
NCBE is a corporation duly organized under the laws of the State of
Indiana. Its principal office is located at 000 Xxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxxxxx Xxxxxx, Xxxxxxx. As of June 30, 1994, NCBE had authorized capital
stock consisting of 5,000,000 shares of common stock, par value $3.33 1/3 per
share, ("NCBE Common Stock") of which a total of 3,693,254 shares were issued
and outstanding and none were shares of treasury stock owned by NCBE. NCBE
owns all of the outstanding capital stock of The National City Bank of
Evansville, Evansville, Indiana; Poole Deposit Bank, Poole, Kentucky; The
Peoples National Bank of Grayville, Grayville, Illinois; The Farmers and
Merchants Bank, Fort Branch, Indiana; Farmers State Bank, Sturgis, Kentucky;
Lincolnland Bank, Xxxx, Indiana; The State Bank of Washington, Washington,
Indiana; The Xxxxxxxx State Bank, Spurgeon, Indiana; Pike County Bank,
Petersburg, Indiana; and The Bank of Mitchell, Mitchell, Indiana (hereinafter
referred to as "NCBE Banks"); and NCBE Leasing Corp., Evansville, Indiana.
White County is an Illinois state banking corporation duly organized
under the laws of the State of Illinois. Its principal office is located at
000 X. Xxxx Xxxxxx, Xxxxx, Xxxxxxxx 00000. As of June 30, 1994, White County
had authorized capital stock consisting of 9,600 authorized shares of common
stock, $100 par value per share ("White County Common Stock"), of which 9,600
shares were issued and outstanding and none were shares of treasury stock owned
by White County.
At least a majority of the entire Board of Directors of NCBE and at
least a majority of the entire Board of Directors of White County,
respectively, have approved the entering into of this Agreement and have
authorized the execution and delivery of this Agreement. The Boards of
Directors of NCBE and White County have determined that it is in the best
interests of their respective corporations and Stockholders that White County
become a wholly owned subsidiary
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corporation of NCBE. After the execution of this Agreement, NCBE will
undertake to cause the formation of a new banking corporation to be organized
under the laws of the State of Illinois ("New Bank"), and thereafter NCBE and
White County will cause, subject to the terms and conditions set forth in this
Agreement, the merger of White County and the New Bank, in accordance with the
terms set forth in the Merger Agreement attached hereto and designated Appendix
A (the "Merger Agreement"). From and after the time the merger of White County
and New Bank shall become effective, the "Merger" and as and when required by
this Agreement and the Merger Agreement, NCBE will issue shares of NCBE Common
Stock in exchange for all of the issued and outstanding shares of White County
Common Stock.
In consideration of mutual covenants and premises herein contained,
NCBE and White County hereby make this Agreement and prescribe the terms and
conditions of the Merger and the mode of carrying the Merger into effect as
follows:
1. Formation of New Bank. As soon as practicable after the date hereof,
NCBE shall commence formation of the New Bank, all of the outstanding
shares of which will be acquired by NCBE prior to the merger of White
County and the New Bank. NCBE will proceed with formation of the New
Bank with due diligence. The New Bank will merge with White County
pursuant to the Merger Agreement. Upon consummation of the Merger,
Stockholders of White County will be entitled to receive as
consideration for their shares of White County shares of NCBE in
accordance with the provisions regarding the exchange of shares set
forth in the Merger Agreement.
2. The Merger Agreement. Promptly following the commencement of the
corporate existence of the New Bank, White County and NCBE shall enter
into, and NCBE shall cause the New Bank to enter into, the Merger
Agreement.
3. Discussions with Others. White County or its officers, directors or
agents will not solicit inquiries or proposals or initiate any
discussions or negotiations leading to any acquisition or purchase of
all or a substantial portion of the assets or stock of White
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County or any merger or consolidation of White County with any third
party without the prior written consent from NCBE, so long as this
Agreement is pending.
4. Undertakings of the Parties. NCBE and White County further agree as
follows:
(a) This Agreement and the Merger Agreement shall be submitted to
the Stockholders of White County for approval and adoption at
a special meeting of Stockholders to be called and held in
accordance with law and the Articles of Incorporation and
Bylaws of White County.
(b) NCBE and White County will cooperate in the preparation by
NCBE of the application to the Board of Governors of the
Federal Reserve System (the "Board") under the appropriate
provisions of Section 3 of the Bank Holding Company Act of
1956, as amended, and to any other state or federal regulatory
agency which may be required to facilitate the Merger. NCBE
and White County will cooperate in the preparation of proxy
and registration statements under the federal and state
securities laws so as to facilitate the exchange of shares as
contemplated by this Agreement and the Merger Agreement.
(c) Each party will assume and pay all of its fees and expenses
incurred by it incident to the negotiation, preparation and
execution of this Agreement, obtaining of the requisite
regulatory and shareholder consents and approvals and all
other acts incidental to, contemplated by or in pursuance of
this Agreement. NCBE shall promptly prepare and file at no
expense to White County: (i) any and all required regulatory
applications necessary in connection with the transactions
contemplated by this Agreement; and (ii) an S-4 Registration
Statement to be filed with the Securities and Exchange
Commission to register the shares of NCBE Common Stock to be
issued in connection with the transactions contemplated by
this Agreement. Such registration statement will not cover
resale's by any persons who may be considered "underwriters"
under Rule 145(c) of the Securities Act of 1933, as amended
(the "1933 Act"). NCBE will also take any action required to
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be taken under any applicable state securities or "Blue Sky"
laws in connection with the Merger.
(d) All information furnished by one party to another party in
connection with this Agreement and the transactions
contemplated hereby will be kept confidential by such other
party and will be used only in connection with this Agreement
and the transactions contemplated hereby, except to the extent
that such information: (i) is already known to such other
party when received; (ii) thereafter becomes lawfully
obtainable from other sources; or (iii) is required to be
disclosed in any document filed with the Securities and
Exchange Commission, the Board, or any other governmental
agency or authority. In the event that this Agreement is
terminated, each party will return to the other party or
destroy any documents received by it from the other party that
contain any such confidential information.
(e) After (i) receipt of the Board's prior approval of NCBE's
acquisition of White County; (ii) the approval of the
Stockholders of White County; and (iii) the regulatory waiting
period(s) have expired, NCBE shall designate the date as of
which NCBE desires the Merger to become effective and the time
the Merger shall become effective shall occur at the time and
on the date so designated. However, any date so specified
shall not be later than either (a) the first of the month
immediately following the month in which the last of the
events described above (i-iii) occurs if said event occurs
before the twenty-first day of such month or (b) the first day
of the second month immediately following such month if the
last of the events described above occurs after the twentieth
day of such month.
(f) Subject to the terms and conditions of this Agreement, NCBE
and White County each agree that, subject to applicable laws
and to the fiduciary duties of its Directors, each will
promptly take or cause to be taken all action, and promptly do
or cause to be done all things necessary, proper or advisable
under applicable laws
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and regulations to consummate and make effective the Merger
and other transactions contemplated by this Agreement.
(g) As soon as practicable following the time the Merger shall
become effective, employees of White County shall be entitled
to participate in all employee benefit plans of NCBE. For
purposes of eligibility and vesting in the NCBE Employees'
Savings and Profit Sharing Plan, employees of White County
will be given credit for their years of service as employees
of White County. For purposes of the NCBE Employees' Plan for
Pensions will be subject to all eligibility and vesting
provisions of such plan, including years of service, without
credit for service as an employee of White County.
(h) White County shall, prior to the time the Merger shall become
effective, take such actions as shall be necessary or
desirable to cause the White County Employee Stock Ownership
Plan (the "ESOP") to be terminated at or after the effective
date of Merger.
(i) NCBE undertakes to cause, immediately after the effective
date of the Merger, the continuance as Directors of White
County, all those persons serving as Directors immediately
prior to the effective time of the Merger, plus one additional
person to be named by NCBE will be added to the Board of
Directors of White County.
(j) NCBE will maintain "current public information" within the
meaning of Rule 144 for three (3) years following the
effective date.
5. Dissenting Stockholders. Holders of White County Common Stock who do
not vote their shares in favor of the Merger and otherwise comply in
all respects to perfect dissenters' rights, will be entitled to
dissenters' or appraisal rights, if any, pursuant to and solely upon
strict compliance with, the applicable provisions of Illinois law.
6. Tax Opinion. NCBE and White County, for the benefit of their
Stockholders shall obtain a written opinion of NCBE's counsel, Xxxxxx
& Blank Co., L.P.A., to the effect that:
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(a) The statutory merger of New Bank with and into White County
will constitute a reorganization within the meaning of Section
368(a)(1)(A) and (a)(2)(E) of the Internal Revenue Code;
(b) No gain or loss will be recognized by White County or NCBE as
a consequence of the transactions herein contemplated;
(c) No gain or loss will be recognized by the Stockholders of
White County on the exchange of their shares of White County
Common Stock for shares of NCBE Common Stock (disregarding for
this purpose any cash received for fractional share interests
to which they may be entitled);
(d) The federal income tax basis of the NCBE Common Stock received
by the Stockholders of White County for their shares of White
County Common Stock will be the same as the federal income tax
basis of the White County Common Stock surrendered in exchange
therefor; and
(e) The holding period of the NCBE Common Stock received by a
shareholder of White County for shares of White County Common
Stock will include the period for which the White County
Common Stock exchanged therefor was held, provided the
exchanged White County Common Stock was held as a capital
asset by such shareholder on the date of the exchange.
7. Representations and Warranties of NCBE. NCBE represents and warrants
to White County as follows:
(a) NCBE is a corporation duly organized and validly existing
under the laws of the State of Indiana, is a registered bank
holding company under the Bank Holding Company Act of 1956, as
amended, and is qualified to do business in the State of
Indiana, together with all other jurisdictions where it is
both required to so qualify and the failure to so qualify
would have material and adverse consequences to NCBE. NCBE
has full power and authority (including all licenses,
franchises, permits and other governmental authorizations
which are legally required) to
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engage in the businesses and activities now conducted by it.
As of June 30, 1994, the authorized capital stock of NCBE
consisted of 5,000,000 shares of common stock, par value $3.33
1/3 per share of which a total of 3,693,254 shares were issued
and outstanding and no shares were held by NCBE as treasury
stock. All of said shares of capital stock are fully paid and
nonassessable and are not issued in violation of the
preemptive rights of any shareholder.
(b) NCBE has furnished to White County copies of the following
financial statements relating to NCBE and its consolidated
subsidiaries: (i) the audited Consolidated Balance Sheets of
NCBE as of December 31, 1993, and 1992, and the Consolidated
Statements of Income, Stockholders' Equity and Statements of
Cash Flows for the three years ended December 31, 1993, 1992
and 1991, together with the notes thereto; and (ii) the
unaudited Consolidated Balance Sheet of NCBE as of June 30,
1994, and the unaudited Consolidated Statements of Income and
Stockholders' equity for the period then ended. Each of the
aforementioned financial statements was prepared in accordance
with Generally Accepted Accounting Principles, consistently
applied and is true and correct in all material respects and
together present fairly the consolidated financial position
and results of operations of NCBE as of the dates and for the
periods therein set forth (subject, in the case of such
interim financial statements, to normal year-end audit
adjustments). Such financial statements do not, as of the
dates thereof, include any material asset or omit any material
liability, absolute or contingent, or other fact, the
inclusion or omission of which renders such financial
statements, in light of the circumstances under which they
were made, misleading in any material respect. Since December
31, 1993, there has not been any material adverse change in
the financial condition, results of operations, business or
prospects of NCBE and its subsidiaries on a consolidated
basis.
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(c) The Board of Directors of NCBE has authorized execution of
this Agreement and the Merger Agreement and approved the
merger of the New Bank and White County as contemplated herein
and therein. NCBE has all requisite power and authority to
enter into this Agreement and the Merger Agreement and NCBE
has the authority to consummate the transactions contemplated
hereby. This Agreement constitutes the valid and legally
binding obligation of NCBE and this Agreement and the
consummation of the transactions contemplated herein have been
duly authorized and approved on behalf of NCBE by all
requisite corporate action. Provided the required approvals
are obtained from the Board, neither the execution and
delivery of this Agreement or the Merger Agreement nor the
consummation of the Merger will conflict with, result in the
breach of, constitute a default under or accelerate the
performance provided by the terms of any law, or any rule or
regulation of any governmental agency or authority or any
judgment, order or decree of any court or other governmental
agency to which NCBE may be subject, any contract, agreement
or instrument to which NCBE is a party or by which NCBE is
bound or committed, or the Articles of Incorporation or Bylaws
of NCBE, or constitute an event which with the lapse of time
or action by a third party, could, to the best of NCBE's
knowledge, result in the default under any of the foregoing or
result in the creation of any lien, charge or encumbrance upon
any of the assets or properties of NCBE or upon any of the
stock of NCBE, except, however, in the case of contracts,
agreements or instruments, such defaults, conflicts or
breaches which either (i) will be cured or waived prior to the
time the Merger becomes effective, or (ii) if not so cured or
waived would not, in the aggregate, have any material adverse
effect on the financial condition, results of operations or
business of NCBE on a consolidated basis.
(d) There is no litigation, action, suit, investigation or
proceeding pending or, to the best of the knowledge after due
inquiry of NCBE and its executive officers,
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threatened, against or affecting NCBE or its subsidiaries or
involving any of their respective properties or assets, at law
or in equity, before any federal, state, municipal, local or
other governmental authority, involving a material amount
which, if resolved adversely to the interest of NCBE or its
subsidiaries, would materially affect the financial conditions
or operations of NCBE or its subsidiaries and/or its ability
to perform under this Merger Agreement, and to the best of the
knowledge and belief after due inquiry of NCBE and its
executive officers, no one has asserted and no one has
reasonable or valid grounds on which it reasonably can be
expected that anyone will assert any such claims against NCBE
or its subsidiaries based upon the wrongful action or inaction
of NCBE or its subsidiaries or any of their respective
officers, directors or employees.
(e) At the time the Merger shall become effective and on such
subsequent date when the former Stockholders of White County
surrender their White County share certificates for
cancellation, the shares of NCBE Common Stock to be received
by Stockholders of White County will have been duly authorized
and validly issued by NCBE and will be fully paid and
nonassessable.
(f) NCBE has not incurred and will not incur directly or
indirectly any liability for brokerage, finders', agents' or
investment bankers' fees or commissions in connection with
this Merger Agreement or the transactions contemplated
thereby.
(g) The Employees' Savings and Profit Sharing Plan of National
City Bancshares, Inc. and the Plan for Pensions of National
City Bancshares, Inc. (hereinafter referred to collectively as
the "plans") which purport to be qualified plans under Section
401(a) of the Internal Revenue Code is so qualified and is in
compliance in all material respects with the applicable
requirements of the Employee Retirement Income Security Act of
1974, as amended ("ERISA"). All material notices, reports and
other filings required under applicable law to be given or
made to or with any governmental agency with respect to the
plans have been
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timely filed or delivered where failure to file will result in
a penalty or result in disqualification of the plan. NCBE has
no knowledge either of any circumstances which would adversely
affect the qualifications of the plans or their compliance
with the applicable requirements of ERISA, or of any
"reportable event" (as such term is defined in Section 4043(b)
of ERISA) or any "prohibited transaction" (as such term is
defined in Section 406 of ERISA and Section 4975(c) of the
Internal Revenue Code) which has occurred since the date on
which said section became applicable to the plans. With
respect to those plans which are defined benefit plans within
the meaning of ERISA, such plans meet the minimum funding
standards set forth in the Internal Revenue Code and ERISA.
(h) NCBE has delivered to White County copies of the Annual Report
on Form 10-K filed with the Securities and Exchange Commission
by NCBE for its fiscal years ended December 31, 1993, 1992,
and 1991 including exhibits and all documents incorporated by
reference therein, and the proxy materials disseminated by
NCBE to its Stockholders in connection with the 1994 Annual
Meeting of Stockholders of NCBE; such Annual Report and proxy
materials do not misstate a material fact or omit to state a
material fact necessary in order to make the statements
contained therein, in light of the circumstances under which
they are made, not misleading.
(i) Since December 31, 1993, each of NCBE and its subsidiaries has
conducted business only in the ordinary course, and has
preserved its corporate existence, business and goodwill
intact, except for the sale by NCBE of the Xxxx-Xxxxxxx-Deal
Insurance Agency, Inc.
(j) NCBE and the NCBE Banks each have good and marketable title to
all assets and properties, whether real or personal, tangible
or intangible, including without limitation the capital stock
of the NCBE Banks and all other assets and properties
reflected in NCBE's Balance Sheet of December 31, 1993 or
acquired subsequent thereto (except to the extent that such
assets and properties have been disposed of
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for fair value in the ordinary course of business since
December 31, 1993) subject to no liens, mortgages, security
interests, encumbrances, pledges or charges of any kind,
except: (i) those items that secure liabilities that are
reflected in said Balance Sheet; (ii) statutory liens for
taxes not yet delinquent; and (iii) minor defects and
irregularities in title and encumbrances which do not
materially impair the use thereof for the purposes for which
they are held; and such liens, mortgages, security interests,
encumbrances and charges are not in the aggregate, material to
the assets and properties of NCBE. NCBE or the NCBE Banks as
lessee has the contractual right under valid leases to occupy,
use, possess and control all material property leased by NCBE
or the NCBE Banks.
(k) To the best of the knowledge after due inquiry of NCBE and its
executive officers, NCBE and the NCBE Banks have complied with
all laws, regulations and orders applicable to them and to the
conduct of their businesses, including without limitation, all
statutes, rules and regulations pertaining to the conduct of
banking activities except for possible technical violations
which together with any penalty which results therefrom are or
will be of no material consequence to either NCBE or the NCBE
Banks. Neither NCBE nor any of the NCBE Banks are the subject
of, nor a party to, any regulatory action or agreement such as
letter agreements, memorandum of understanding, cease and
desist orders or like agreements. Neither NCBE nor the NCBE
Banks are in default under, and no event has occurred which,
with the lapse of time or action by a third party, could, to
the best of NCBE's knowledge after due inquiry, result in the
default under the terms of any judgment, decree, order, writ,
rule or regulation of any governmental authority or court,
whether federal, state or local and whether at law or in
equity, where the default(s) could reasonably be expected to
have a material adverse effect on the financial conditions,
results of operations or business of NCBE or the NCBE Banks on
a consolidated basis.
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(l) NCBE has duly filed all federal, state, county and local
income, excise, real and personal property and other tax
returns and reports (including, but not limited to, social
security, withholding, unemployment insurance, and sales and
use taxes) required to have been filed by NCBE up to the date
hereof. To the best of the knowledge and belief of NCBE all
such returns are true and correct in all material respects,
and NCBE has paid or, prior to the time the Merger shall
become effective, will pay all taxes, interest and penalties
shown on such return or reports or claimed (other than those
claims being contested in good faith and which have been
disclosed to White County) to be due to any federal, state,
county, local or other taxing authority, and there is, and at
the time the Merger shall become effective will be, no basis
for any additional claim or assessment which might materially
and adversely affect NCBE or the NCBE Banks, and for which an
adequate reserve has not been established. To the best of its
knowledge and belief, NCBE has paid or made adequate provision
in its financial statements or its books and records for all
taxes payable in respect of all periods ending as of the date
thereof. To the best of its knowledge and belief NCBE has, or
at the time the Merger shall become effective will have, no
material liability for any taxes, interest or penalties of
any nature whatsoever, except for those taxes which may have
arisen up to the time the Merger shall become effective in the
ordinary course of business and are properly accrued on the
books of NCBE as of the time the Merger shall become
effective.
8. Representations and Warranties of White County. White County
represents and warrants to NCBE as follows:
(a) White County is a banking corporation duly organized and
validly existing in good standing under the laws of the State
of Illinois. White County has full power and authority
(including all licenses, franchises, permits and other
governmental authorizations which are legally required) to
engage in the
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businesses and activities now conducted by it. As of the date
of this Agreement, the authorized capital stock of White
County consists of 9,600 shares of common stock with $100 par
value, of which a total of 9,600 shares are issued and
outstanding and none are shares of treasury stock owned by
White County. All of said shares of capital stock are fully
paid and nonassessable and are not issued in violation of the
preemptive rights of any shareholder. There are no
outstanding options, warrants or commitments of any kind
relating to White County's capital stock except as disclosed
in the letter to NCBE of even date herewith.
(b) White County has furnished to NCBE copies of all financial
statements relating to White County, as filed with the
appropriate regulatory agencies, as of and for the years ended
December 31, 1993 and 1992. White County has furnished to
NCBE copies of all financial statements relating to White
County, as filed with the appropriate regulatory agencies, as
of and for the period ended June 30, 1994. Each of the
aforementioned financial statements is prepared in accordance
with Generally Accepted Accounting Principles or applicable
regulatory accounting principles applicable to White County
consistently applied and is true and correct in all material
respects and together present fairly the consolidated
financial position and results of operations of White County
as of the dates and for the periods therein set forth
(subject, in the case of such interim financial statements,
to normal year-end adjustments). White County financial
statements do not, as of the dates thereof, include any
material asset or omit any material liability, absolute or
contingent, or other fact, the inclusion or omission of which
renders such financial statements, in light of the
circumstances under which they were made, misleading in any
material respect, except for certain off balance sheet
liabilities which are disclosed in White County's letter to
NCBE of even date herewith. Since December 31, 1993, there
has not been any material adverse
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change in the financial condition, results of operations,
business or prospects of White County.
(c) The Board of Directors of White County has authorized
execution of this Agreement. Subject to the approval by the
Stockholders of White County, White County has all requisite
power and authority to enter in this Agreement and the Merger
Agreement. White County has the authority to consummate the
transactions contemplated hereby so that, provided all
required corporate and regulatory approvals are obtained,
neither the execution and delivery of this Agreement, the
Merger Agreement nor the consummation of the Merger will
conflict with, result in the breach of, constitute a default
under or accelerate the performance provided by the terms of
any law, or any rule or regulation of any governmental agency
or authority or any judgment, order or decree of any court or
other governmental agency to which White County may be
subject, any contract, agreement or instrument to which White
County is a party or by which White County is bound or
committed, or the Articles of Incorporation or Bylaws of White
County, or constitute an event which with the lapse of time or
action by a third party, could, to the best of White County's
knowledge, result in the default under any of the foregoing or
result in the creation of any lien, charge, encumbrance upon
any of the assets, property or capital stock of White County,
except, however, in the case of contracts, agreements or
instruments, such defaults, conflicts or breaches which either
(i) will be cured or waived prior to the time the Merger
becomes effective, or (ii) if not so cured or waived would
not, in the aggregate, have any material adverse effect on the
financial condition, results of operations or business of
White County.
(d) Except as disclosed in White County's letter to NCBE of even
date herewith, there is no litigation, action, suit,
investigation or proceeding pending or, to the best of their
knowledge after due inquiry of White County and its executive
officers,
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overtly threatened, against or affecting White County or
involving any of their respective properties or assets, at law
or in equity, before any federal, state, municipal, local or
other governmental authority, involving a material amount
which, if resolved adversely to the interest of White County,
would materially affect the financial condition or operations
of White County and/or its ability to perform under this
Agreement or the Merger Agreement, and to the best of the
knowledge and belief after due inquiry of White County and its
executive officers, no one has asserted and no one has
reasonable or valid ground on which it reasonably can be
expected that anyone will assert any such claims against White
County based upon the wrongful action or inaction of White
County or its respective officers, directors or employees.
(e) White County has good and marketable title to all assets and
properties, whether real or personal, tangible or intangible
reflected in White County's Balance Sheet of December 31, 1993
or acquired subsequent thereto (except to the extent that such
assets and properties have been disposed of for fair value in
the ordinary course of business since December 31, 1993)
subject to no liens, mortgages, security interests,
encumbrances, pledges or charges of any kind, except: (i)
those items that secure liabilities that are reflected in said
Balance Sheet; (ii) statutory liens for taxes not yet
delinquent; and (iii) minor defects and irregularities in
title and encumbrances which do not materially impair the use
thereof for the purposes for which they are held; and such
liens, mortgages, security interests, encumbrances and charges
are not in the aggregate, material to the assets and
properties of White County. White County as lessee has the
contractual right under valid leases to occupy, use, possess
and control all material property leased by White County.
(f) To the best of the knowledge after due inquiry of White County
and its executive officers, White County has complied with all
laws, regulations and orders
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applicable to it and to the conduct of its business, including
without limitation, all statutes, rules and regulations
pertaining to the conduct of White County banking activities
except for possible technical violations which together with
any penalty which results therefrom are or will be of no
material consequence to White County. Except as disclosed in
White County's letter to NCBE of even date herewith, White
County is not the subject of nor is a party to, any
regulatory actions or agreement such as letter agreements,
memorandum of understanding, cease and desist order or like
agreements. White County is not in default under, and no
event has occurred which, with the lapse of time or action by
a third party, could, to the best of White County's knowledge
after due inquiry, result in the default under the terms of
any judgment, decree, order, writ, rule or regulation of any
governmental authority or court, whether federal, state or
local and whether at law or in equity, where the default(s)
could reasonably be expected to have a material adverse effect
on the financial condition, results of operations or business
of White County.
(g) Except as disclosed in White County's letter to NCBE of even
date herewith, receipt of which is acknowledged by NCBE, White
County has not, since December 31, 1993 to the date hereof:
(i) issued or sold any of its capital stock or any corporate
debt securities; (ii) granted any option for the purchase of
capital stock; (iii) declared or set aside or paid any
dividend or other distribution in respect of its capital stock
except as permitted pursuant to Section 9(a) hereof or,
directly or indirectly, purchased, redeemed or otherwise
acquired any shares of such stock; (iv) incurred any
obligation or liability (absolute or contingent), except for
obligations reflected in this Agreement or the Merger
Agreement, and except for obligations or liabilities incurred
in the ordinary course of business, or mortgaged, pledged or
subjected to lien or encumbrance (other than statutory liens
for taxes not yet delinquent) any of its assets or properties;
(v) discharged or
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satisfied any lien or encumbrance or paid any obligation or
liability (absolute or contingent), other than the current
portion of any long term liabilities which become due after
December 31, 1993, current liabilities included in its
financial statements as of December 31, 1993, current
liabilities incurred since the date thereof in the ordinary
course of business and liabilities incurred in carrying out
the transactions contemplated by this Agreement or the Merger
Agreement; (vi) sold, exchanged or otherwise disposed of any
of its material capital assets outside the ordinary course of
business; (vii) made any extraordinary officers' salary
increase or wage increase, entered into any employment
contract with any officer or salaried employee or, instituted
any employee welfare, bonus, stock option, profit-sharing,
retirement or similar plan or arrangement; (viii) suffered any
damage, destruction or loss, whether or not covered by
insurance, materially and adversely affecting its business,
property or assets or waived (except for fair consideration)
any rights of value which are material in the aggregate,
considering its business taken as a whole; or (ix) entered or
agreed to enter into any agreement or arrangement granting any
preferential right to purchase any of its assets, properties
or rights or requiring the consent of any party to the
transfer and assignment of any such assets, properties or
rights.
(h) Except as disclosed in White County's letter to NCBE of even
date herewith, White County is not a party to or bound by any
written or oral: (i) employment or consulting contract which
is not terminable by it on 60 days or less notice, (ii)
employee bonus (other than an annual bonus to be paid to
employees of White County for the year 1994, in amounts and on
dates consistent with past practice, which bonuses are payable
at the discretion of the White County board of directors),
deferred compensation, pension, stock bonus or purchase,
profit-sharing, retirement or stock option plan, (iii) other
employee benefit or welfare plan, or (iv) other executory
material agreements which in any case obligate
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White County to make any payment(s) which in the aggregate
exceed $10,000 per year except for contracts terminable on 60
days notice. All such pension, stock bonus or purchase,
profit-sharing, defined benefit and retirement plans set forth
under the caption "Qualified Plans" in the White County
Document List (hereinafter referred to collectively as the
"plan") are qualified plans under Section 401(a) of the
Internal Revenue Code and in compliance in all material
respects with ERISA. All material notices, reports and other
filings required under applicable law to be given or made to
or with any governmental agency with respect to the plans have
been timely filed or delivered where failure to file would
result in a penalty and/or result in disqualification of the
plan. White County has no knowledge either of any
circumstances which would adversely affect the qualification
of the plans or their compliance with ERISA, or of any
unreported "reportable event" (as such term is defined in
Section 4043(b) of ERISA) or, except as disclosed in White
County's letter to NCBE of even date herewith, any
"prohibited transaction" (as such term is defined in Section
406 of ERISA and Section 4975(c) of the Internal Revenue Code)
which has occurred since the date on which said sections
became applicable to the plans. The plans meet the minimum
funding standards set forth in the Internal Revenue Code and
ERISA.
(i) White County has duly filed all federal, state, county and
local income, excise, real and personal property and other tax
returns and reports (including, but not limited to, social
security, withholding, unemployment insurance, and sales and
use taxes) required to have been filed by White County up to
the date hereof. Except as set forth in White County's letter
to NCBE of even date herewith, receipt of which is
acknowledged by NCBE, to the best of the knowledge and belief
of White County all such returns are true and correct in all
material respects, and White County has paid or, prior to the
time the Merger shall become
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effective, will pay all taxes, interest and penalties shown
on such return or reports or claimed together than those
claims being contested in good faith and which have been
disclosed to NCBE to be due to any federal, state, county,
local or other taxing authority, and there is, and at the time
the Merger shall become effective will be, no basis for any
additional claim or assessment which might materially and
adversely affect White County and for which an adequate
reserve has not been established. To the best of its
knowledge and belief, White County has paid or made adequate
provision in its financial statements or its books and records
for all taxes payable in respect of all periods ending as of
the date thereof. To the best of its knowledge and belief,
White County has, or at the time the Merger shall become
effective will have, no material liability for any taxes,
interest or penalties of any nature whatsoever, except for
those taxes which may have arisen up to the time the Merger
shall become effective in the ordinary course of business and
are properly accrued on the books of White County as of the
time the Merger shall become effective.
(j) To the best of its knowledge and belief, but without
having undertaken an environmental audit, White County has no
knowledge of any underground storage tanks, any hazardous
substances, hazardous waste, pollutant or contaminant,
including, but not limited to, asbestos (except as previously
disclosed to NCBE in a letter of even date herewith), PCB's or
urea formaldehyde, having been generated, released into,
stored or deposited over, upon or below (in storage tanks or
otherwise) White County's premises or any other real property
owned or leased by White County other than other real estate
owned, for which no investigation was conducted by White
County, but for which White County has no knowledge of such,
or into any water systems on or below the surface of the White
County premises or any other real property owned or leased by
White County other than other real estate owned, for which no
investigation was conducted by White
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County, but for which White County has no knowledge of such
from any source whatsoever. As used in this Agreement, the
terms "hazardous substance," "hazardous waste," "pollutant"
and "contaminant" mean any substance, waste, pollutant or
contaminant included within such terms under any applicable
Federal, state or local statute or regulation.
(k) White County has in effect insurance coverage with reputable
insurers, which in respect of amounts, premiums, types and
risks insured, constitutes reasonably adequate coverage
against all risks customarily insured against companies
comparable in size and operation to White County.
(l) Except as disclosed in White County's letter to NCBE of even
date herewith, White County has not incurred and will not
incur any liability for brokerage, finders', agents', or
investment bankers' fees or commissions in connection with
this Agreement or the Merger Agreement or the transactions
contemplated hereby and thereby.
(m) The directors of White County executing this Agreement shall
vote the shares of White County held directly by them in favor
of adoption of the Agreement.
9. Action by White County Pending Effective Time. White County agrees
that from the date of this Agreement until the time the Merger shall
become effective, except with prior written permission of NCBE:
(a) Beginning with the date hereof and until such time as the
Merger shall become effective, White County will not declare
or pay any dividends or make any distributions other than
regular cash dividends, payable at such times and in amounts
consistent with past practice and not to exceed the per share
rate paid in the prior calendar year, provided, however, that
Stockholders of White County may for any given quarter,
receive dividends attributable to that quarter only from NCBE
or White County, but not from both. If, prior to the
consummation of the Merger, White County shall declare a stock
dividend or make distributions upon
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or subdivide, split up, reclassify or combine its shares of
common stock in any security convertible into its common
stock, appropriate adjustment or adjustments will be made in
the foregoing per share dividend rate.
(b) White County will not issue, sell, grant any option for, or
acquire for value any shares of its capital stock or otherwise
effect any change in connection with its capitalization.
(c) Except as otherwise set forth in or contemplated by this
Agreement or the Merger Agreement, White County will carry on
its businesses in substantially the same manner as heretofore,
keep in full force and effect insurance comparable in amount
and scope of coverage to that now maintained by it and use its
best efforts to maintain and preserve its business
organization intact.
(d) White County will not: (i) enter into any transaction other
than in the ordinary course of business or incur or agree to
incur any obligation or liability except liabilities incurred
and obligations entered into in the ordinary course of
business; (ii) change its lending, investment, liability
management and other material White County banking policies in
any material respect; (iii) except as committed for adjustment
as of the date hereof and consistent with prior practice,
grant any general or uniform increase in the rates of pay of
employees; (iv) except as disclosed in White County's letter
to NCBE of even date herewith, incur or commit to any capital
expenditures other than in the ordinary course of business
(which in no event shall include the establishment of new
branches and such other facilities or any capital expenditures
for any purpose which exceed 1% of White County's combined
capital, surplus and undivided profit accounts as of December
31, 1993), or (v) merge into, consolidate with or sell its
assets to any other corporation or person, or permit any other
corporation to be merged or consolidated with it or acquire
all of the assets of any other corporation or person.
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(e) White County will not change its method of accounting in
effect at December 31, 1993 except as required by changes in
generally accepted accounting principles and concurred in by
White County's independent auditors, or change any of its
methods of reporting income and deductions for Federal income
tax purposes from those employed in the preparation of White
County's Federal income tax returns for the taxable year
ending December 31, 1993, except for changes required by law.
(f) White County will afford NCBE, its officers and other
authorized representatives, such access to all books, records,
tax returns, leases, contracts and documents of White County
and will furnish to NCBE such information with respect to the
assets and business of White County as NCBE may from time to
time reasonably request in connection with this Agreement or
the Merger Agreement and the transactions contemplated hereby
or thereby.
(g) White County will promptly advise NCBE in writing of all
material actions taken by the directors and Stockholders of
White County, furnish NCBE with copies of all interim
financial statements of White County as they become available,
and keep NCBE fully informed concerning all developments which
in the opinion of White County may have a material effect upon
the business, properties or condition (either financial or
otherwise) of White County.
10. Action by NCBE Pending Effective Time. NCBE agrees that from the date
of this Agreement until the time the Merger shall become effective:
(a) NCBE will carry on its business in substantially the same
manner as heretofore except as otherwise set forth in or
contemplated by this Agreement, and NCBE will keep in full
force and effect insurance comparable in amount and scope of
coverage to that now maintained by it and use its best efforts
to maintain and preserve its business organization intact.
White County acknowledges that, in the ordinary course of its
business as a bank holding company, NCBE from time-to-
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time, enters into an agreement(s) to acquire by merger, stock
purchase or like means, another financial institution or its
holding company.
(b) NCBE will not change its methods of accounting in effect at
December 31, 1993, except as required by changes in generally
accepted accounting principles as concurred in by NCBE's
independent auditors, or change any of its methods of
reporting income and deductions for Federal income tax
purposes from those employed in the preparation of the Federal
income tax returns of NCBE Banks for the taxable year ending
December 31, 1993, except for changes required by law or take
any action which could jeopardize the tax free nature of the
Merger or the pooling of interests accounting treatment for
the Merger.
(c) NCBE will promptly advise White County in writing of all
material corporate actions taken by the directors of NCBE,
furnish White County with copies of interim financial
statements of NCBE and all reports, schedules and statements
filed by or delivered to NCBE pursuant to the Securities and
Exchange Act of 1934 and the rules and regulations promulgated
thereunder, as they become available, and keep White County
fully informed concerning all developments which in the
opinion of NCBE may have a material effect upon the business,
properties or condition (either financial or otherwise) of
NCBE.
11. Conditions to Obligations of NCBE. The obligations of NCBE under this
Agreement and the Merger Agreement are subject, unless waived by NCBE,
to the satisfaction of the following conditions on or prior to the
time the Merger shall become effective:
(a) There shall not have been any material adverse change or
discovery of a condition or the occurrence of an event which
has or is likely to result in such a change, in the financial
condition, aggregate net assets, Stockholders' equity,
business or operating results of White County from December
31, 1993 to the time the Merger shall become effective.
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(b) White County shall not have paid cash dividends from the date
hereof to the time the Merger shall become effective except as
permitted under this Agreement.
(c) All representations by White County contained in this
Agreement and the Merger Agreement shall be true in all
material respects at, or as of, the time the Merger shall
become effective as though such representations were made at
and as of said date, except for changes contemplated by this
Agreement or the Merger Agreement and except also for
representations as of a specified time other than the time the
Merger shall become effective, which shall be true in all
material respects at such specified time.
(d) NCBE shall have received the opinion of legal counsel for
White County, dated the time the Merger shall become
effective, substantially to the effect set forth in Exhibit A
hereto.
(e) White County shall have performed or satisfied in all material
respects all agreements and conditions required by this
Agreement or the Merger Agreement to be performed or satisfied
by it at or prior to the time the Merger shall become
effective.
(f) At the time the Merger shall become effective, no suit, action
or proceeding shall be pending or overtly threatened before
any court or other governmental agency by the federal or state
government in which it is sought to restrain or prohibit the
consummation of the Merger, and no other suit, action or
proceeding shall be pending or overtly threatened and no
liability or claim shall have been asserted against White
County which NCBE shall in good faith determine, with advice
of counsel: (i) has a reasonable likelihood of being
successfully prosecuted and (ii) if successfully prosecuted,
would materially and adversely affect the benefits hereunder
intended for NCBE.
(g) Prior to the time the Merger shall become effective, NCBE
shall not have been deprived of adequate opportunity to
conduct such review and examination of the
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business, properties, and condition (financial or otherwise)
of White County as NCBE shall have deemed prudent, and such
review and examination shall not have disclosed matters which
are inconsistent in any material respect with any of the
representations and warranties of White County contained in
this Agreement or the Merger Agreement. Immediately prior to
the time the Merger shall become effective, White County shall
be entitled to receive from NCBE a statement as to whether
the condition set forth herein has been satisfied.
(h) Holders of White County Common Stock who are entitled to
exercise in the aggregate not more than 5% of the voting power
of the issued and outstanding White County Common Stock as of
the time the Merger shall become effective shall have taken
steps to perfect their rights as dissenting Stockholders
pursuant to the provisions of Section 5/29 of the Illinois
Banking Act so that if, at the time the Merger shall become
effective, holders of more than 5% of such shares shall have
taken such steps, NCBE may, at its option, refuse to
consummate the Merger.
(i) White County shall have furnished NCBE certificates, signed on
its behalf by the Chairman or President and the Secretary or
an Assistant Secretary of White County and dated the time the
Merger shall become effective, to the effect that to the best
of their knowledge, after due inquiry, the conditions
described in Paragraphs (a), (b), (c), and (f) of this Section
11 have been fully satisfied.
(j) NCBE shall have received assurances, satisfactory to it, that
the Merger will be accounted for as a pooling of interest.
12. Conditions to Obligations of White County. The obligations of White
County under this Agreement or the Merger Agreement are subject,
unless waived by White County, to the satisfaction on or prior to the
time the Merger shall become effective of the following conditions:
(a) There shall not have been any material adverse change or
discovery of a condition or the occurrence of an event which
has or is likely to result in such a change, in
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the financial condition, aggregate net assets, Stockholders'
equity, business, or operating results of NCBE from December
31, 1993 to the time the Merger shall become effective.
(b) All representations by NCBE contained in this Agreement and
the Merger Agreement shall be true in all material respects
at, or as of, the time the Merger shall become effective as
though such representations were made at and as of said date,
except for changes contemplated by this Agreement and the
Merger Agreement, and except also for representations as of a
specified time other than the time the Merger shall become
effective, which shall be true in all material respects at
such specified time.
(c) White County shall have received the opinion of Counsel for
NCBE dated the time the Merger shall become effective
substantially to the effect set forth in Exhibit B hereto.
(d) NCBE shall have performed or satisfied in all material
respects all agreements and conditions required by this
Agreement and the Merger Agreement to be performed or
satisfied by it at or prior to the time the Merger shall
become effective.
(e) At the time the Merger shall become effective, no suit, action
or proceeding shall be pending or overtly threatened before
any court or other governmental agency of the federal or state
government in which it is sought to restrain, prohibit or set
aside consummation of the Merger and no other suit, action or
proceeding shall be pending or overtly threatened and no
liability or claim shall have been asserted against NCBE which
White County shall in good faith determine, with advice of
counsel: (i) has a reasonable likelihood of being
successfully prosecuted and (ii) if successfully prosecuted,
would materially and adversely affect the benefits hereunder
intended for White County and its Stockholders.
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(f) NCBE shall have furnished White County a certificate, signed
by the Chairman or President and by the Secretary or Assistant
Secretary of NCBE and dated the time the Merger shall become
effective to the effect that to the best of their knowledge
after due inquiry the conditions described in Paragraphs (a),
(b), and (e) of this Section 12 have been fully satisfied.
13. Conditions to Obligations of All Parties. In addition to the
provisions of Sections 11 and 12 hereof, the obligations of NCBE and
White County to cause the transactions contemplated herein to be
consummated shall be subject to the satisfaction of the following
conditions on or prior to the time the Merger shall become effective:
(a) The parties hereto shall have received all necessary approvals
of governmental agencies and authorities of the transactions
contemplated by this Agreement and each of such approvals
shall remain in full force and effect at the time the Merger
shall become effective and such approvals and the transactions
contemplated thereby shall not have been contested by any
federal or state governmental authority by formal proceeding,
or contested by any other third party by formal proceeding
which the Board of Directors or the party asserting a failure
of a condition under this Section 13(a) shall in good faith
determine, with the advice of counsel: (i) has a reasonable
likelihood of being successfully prosecuted and (ii) if
successfully prosecuted, would materially and adversely affect
the benefits hereunder intended for such party. It is
understood that, if any contest as aforesaid is brought by
formal proceedings, NCBE may, but shall not be obligated to,
answer and defend such contest. NCBE shall notify White
County promptly upon receipt of all necessary governmental
approvals.
(b) The registration statement required to be filed by NCBE
pursuant to Section 4(c) of this Agreement shall have become
effective by an order of the Securities and Exchange
Commission, the shares of NCBE Common Stock to be exchanged in
the Merger shall have been qualified or exempted under all
applicable state
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securities laws, and there shall have been no stop order
issued or threatened by the Securities and Exchange Commission
that suspends or would suspend the effectiveness of the
registration statement, and no proceeding shall have been
commenced, pending or overtly threatened for such purpose.
(c) This Agreement and the Merger Agreement shall have been duly
adopted, ratified and confirmed by the requisite affirmative
votes of the Stockholders of White County.
(d) NCBE and White County shall have received the opinion called
for pursuant to Section 6 of this Agreement and there shall
exist as of, at or immediately prior to the time the Merger
shall become effective no facts or circumstances which would
render such opinion inapplicable in any respect to the
transactions to be consummated hereunder.
14. Nonsurvival of Representations and Warranties. The respective
representations and warranties of NCBE and White County set forth
shall survive the time the Merger shall become effective for a period
of one (1) year.
15. Governing Law. This Agreement shall be construed and interpreted
according to the applicable laws of the State of Illinois.
16. Assignment. This Agreement and the Merger Agreement and all of the
provisions hereof and thereof shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and
permitted assigns, but neither this Agreement nor the Merger Agreement
nor any of the rights, interest, or obligations hereunder or
thereunder shall be assigned by either of the parties hereto without
the prior written consent of the other party; provided, however, that
NCBE shall not engage in a transaction pursuant to which its
Stockholders exchange NCBE common stock for securities or property of
another party whether by statutory share exchange, merger,
consolidation, reorganization or the sale of substantially all the
assets of NCBE without concurrently therewith assigning to the
acquiring or surviving party, all of the obligations of NCBE under
this Agreement.
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00. Satisfaction of Conditions; Termination.
(a) NCBE agrees to use its best effort to obtain satisfaction of
the conditions insofar as they relate to NCBE, and White
County agrees to use its best efforts to obtain the
satisfaction of the conditions insofar as they relate to White
County. If any material condition to the obligations of NCBE
set forth in Section 11 or 13 is not substantially satisfied
at the time or times contemplated thereby and such condition
is not waived by NCBE, or if any material condition to the
obligations of White County set forth in Section 12 or 13 is
not substantially satisfied at the time or times contemplated
thereby and such condition is not waived by White County, or
if at any time prior to the time the Merger shall become
effective, it shall become reasonably certain that such
condition will not be substantially satisfied and such
condition is not waived by NCBE or White County, as the case
may be, either NCBE or White County may terminate this
Agreement by written notice to the other party after the
expiration of fifteen (15) days written notice to the other
party during which time such other party shall have an
opportunity to cure such defect in said condition. This
Agreement may be terminated and abandoned (either before or
after the meetings of Stockholders contemplated hereby) by
mutual written consent of NCBE and White County authorized by
their respective Boards of Directors. In the event of such
termination caused otherwise than by breach of this Agreement
by any of the parties hereto, this Agreement shall cease and
terminate, the acquisition of White County as provided herein
shall not be consummated, and neither NCBE nor White County
shall have any further liability under this Agreement of any
nature whatever, including any liability for damages. In the
event this Agreement is terminated, the duties of both parties
with respect to confidential information set forth in Sections
4(d) shall survive any such termination. In addition to the
other grounds for termination of this Agreement set forth
herein, this Agreement can be terminated
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by written notice by either party to the other, in each case
authorized by its Board of Directors, if the Merger shall not
have been consummated by June 30, 1995, or the date of such
notice, whichever is later.
(b) If termination of this Agreement shall be judicially
determined to have been caused by breach of this Agreement,
then, in addition to other remedies at law or equity for
breach of this Agreement, the party so found to have breached
this Agreement shall indemnify the other parties for their
respective costs, fees and expenses of its counsel,
accountants and other experts and advisors as well as fees and
expenses incident to negotiation, preparation and execution of
this Agreement and related actions and its Stockholders'
meetings and actions.
18. Waivers Amendments. Any of the provisions of this Agreement may be
waived at any time by the party which is, or the Stockholders of which
are, entitled to the benefit thereof, by resolution of the Board of
Directors of such party. This Agreement may be amended or modified in
whole or in part by an agreement in writing executed in the same
manner (but not necessarily by the same person) as this Agreement and
which makes reference to this Agreement, pursuant to a resolution,
adopted by the Boards of Directors of the respective parties,
provided, however, such amendment or modification may be made in this
manner by the respective Boards of Directors of NCBE and White County
at anytime prior to a favorable vote of such party's Stockholders, but
may be made after a favorable vote by the Stockholders of such party,
only if, in the opinion of its Board of Directors, such amendment or
modification will not have any material adverse effect on the benefits
intended under this Agreement for the Stockholders of such party and
will not require resolicitation of any proxies from such Stockholders.
19. Entire Agreement. This Agreement supersedes any other agreement,
whether written or oral, that may have been made or entered into by
NCBE and White County or by any officer or officers of such parties
relating to the acquisition of the business or the capital stock of
White County by NCBE. Except for the letters specified in this
Agreement
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(which shall include for purposes hereof the Merger Agreement) and of
even date herewith, this Agreement constitutes the entire agreement by
the parties, and there are no agreements or commitments except as set
forth herein and therein.
20. Captions; Counterparts. The captions in this Agreement are for
convenience only and shall not be considered a part of or affect the
construction or interpretation of any provision of this Agreement.
This Agreement may be executed in several counterparts, each of which
shall constitute one and the same instrument.
21. Notices. All notices and other communications hereunder shall be
deemed to have been duly given if forwarded by a nationally recognized
overnight courier service. All notices and other communications
hereunder given to any party shall be communicated to the remaining
party to this Agreement by mail in the same manner as herein provided.
a) If to NCBE, to:
Xx. Xxxxxx X. Xxxx
President
National City Bancshares, Inc.
000 Xxxx Xxxxxx, X.X. Xxx 000
Xxxxxxxxxx, Xxxxxxx 00000-0000
With copies to:
Xxxxxx X. Xxxxxx, Esq.
Xxxxxx & Blank Co., L.P.A.
0000 X. Xxxxxxx Xxxxxx
Xxxxxx, Xxxx 00000
(b) If to White County, to:
Xx. Xxxxxx X. Xxxxxxxx
Chairman
White County Bank
000 X Xxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
With copies to:
Xxxxxx X. Xxxxx
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Xxxxxx, Winning, Xxxxx & Bodewes, P.C.
Suite 600 Xxxxx Building
One Xxxx Xxx Xxxxx Xxxxxxx Xxxxx
X.X. Xxx 0000
Xxxxxxxxxxx, XX 00000
22. Undertakings of Affiliates. NCBE shall have received undertakings in
writing from each of such persons, if any, as counsel for NCBE
believes might reasonably be considered "affiliates" of White County
within the meaning of Rule 145 of the Securities and Exchange
Commission pursuant to the Securities Act of 1933, in each case in
form and substance satisfactory to counsel for NCBE, to the effect
that so long as NCBE complies with its obligations under Section 4(j)
hereof, (i) any disposition made by such person of any share of NCBE
Common Stock received by such person pursuant to the Merger shall be
made within the limits and in accordance with the applicable
provisions of said Rule 145, as such Rule may be amended from time to
time, and (ii) such person will not sell, assign or transfer any of
such NCBE Common Stock until NCBE shall have published financial
results including the combined operations of NCBE and White County for
a period of at least 30 days following the time the Merger shall
become effective.
23. Publicity. NCBE and White County agree to consult with and obtain the
consent of the other, prior to any media release or other public
disclosures as to the matters covered by this Agreement, except as may
be required by law.
IN WITNESS WHEREOF, this Agreement has been executed the day and year
first above written.
ATTEST: National City Bancshares, Inc.
NATIONAL CITY BANCSHARES, INC. By: /s/ XXXX X. XXXXXXX
By: /s/ XXXXXX X. XXXX Xxxx X. Xxxxxxx, Chairman,
Its: Secretary and Treasurer and Chief Executive Officer
ATTEST: White County Bank
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WHITE COUNTY BANK By: /s/ XXXXXX X. XXXXXXXX
By: /s/ XXXXXX XXXXXX Xxxxxx X. Xxxxxxxx, Chairman
Its: Cashier
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[As individuals and with respect solely to the understanding made in Section
8(m) of this Agreement.]
/s/ R. XXXXX XXXXXXX /s/ XXXXXX X. XXXXX
/s/ XXXXX X. XXXXXXXX /s/ XXXX X. XXXXX
/s/ XXXXXXX X. XXXXXXXXX /s/ XXXXX XXXXXX
/s/ XXXXXX X. XXXXXXXX _______________________________
/s/ XXXXX X. XXXXXX _______________________________
/s/ XXXX X. XXXXXXX _______________________________
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APPENDIX A
MERGER AGREEMENT
THIS MERGER AGREEMENT (this "Agreement") dated as of __________, 1994,
is by and between White County Interim Bank ("New Bank"), an Illinois state
banking corporation and wholly owned subsidiary of National City Bancshares,
Inc., an Indiana corporation ("NCBE") and White County Bank ("White County"),
an Illinois state banking corporation and is joined in by NCBE.
WITNESSETH:
WHEREAS, the Board of Directors of the New Bank and the Board of
Directors of White County have determined that it is in the best interests of
the New Bank and White County to merge New Bank with and into White County in
accordance with the provisions of the laws of the State of Illinois and the
Federal Deposit Insurance Act (the "Merger"); and
WHEREAS, the Board of Directors of White County and the Board of
Directors of New Bank have each adopted a resolution approving this Agreement
and have directed that the Merger Agreement be submitted to the shareholders of
White County and New Bank entitled to vote in respect thereof for adoption and
approval;
NOW, THEREFORE, the parties hereto, subject to the terms and
conditions contained herein, agrees as follows:
ARTICLE I
Constituent Corporations
White County and New Bank shall be the constituent banking
corporations with respect to the Merger.
ARTICLE II
Merger
Effective as of the time of the filing of this Agreement with the
Commissioner of Banks and Trust Companies for the State of Illinois (the
"Effective Time"), New Bank shall be merged into White County and White County
shall be the surviving banking corporation (the "Surviving Corporation"), which
after the effective time of the Merger shall be known as "White County Bank."
ARTICLE III
Articles of Incorporation, Etc.
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0. At the Effective Time, the Articles of Incorporation and Bylaws of
White County shall constitute the Articles of Incorporation of the
Surviving Corporation.
2. The Surviving Corporation's main office shall be located at 000 X.
Xxxx Xxxxxx, Xxxxx, Xxxxxxxx, until otherwise changed in accordance
with law.
3. Attached hereto as Exhibit A is a complete list of the Stockholders
of White County as of the date of this Merger Agreement.
4. Attached hereto as Exhibit B is a complete list of the Stockholders of
The New Bank as of the date of this Merger Agreement.
5. Attached hereto as Exhibit C is a detailed pro forma financial
Statement, based upon financial information as of _____________199_,
showing the assets and liabilities of the Surviving Corporation after
the Merger.
6. At the Effective Time, the directors of White County then holding
office shall constitute the directors of the Surviving Corporation,
subject to the Surviving Corporation's Articles of Incorporation and
Bylaws and applicable law as to the term and removal of directors.
ARTICLE IV
Manner of Converting and Exchanging Stock and Capital Structure
1. Subject to the provisions of this Article IV, the manner of converting
and exchanging the shares of the constituent corporation's stock at the
Effective Time shall be as follows.
Conversion and Exchange of Shares.
(a) At the time the Merger shall become effective;
(i) All of the outstanding shares of White County Common
Stock shall, (subject to statutory dissenters rights
as provided by Section 29 of the Illinois Banking
Act; 205 ILCS 5/29, a copy of which is attached
hereto as Exhibit D), be exchanged, pro rata, for
264,000 shares, in the aggregate, of NCBE Common
Stock (or cash for fractional shares), provided
however that in the event that the per share weighted
average (based upon the number of shares traded) high
and low price of NCBE Common Stock, as reported by
the NASDAQ National Market System for the ten
business days immediately proceeding the effective
date the Merger, is lower than $38.00 or higher than
$48.00 per share, (adjusted for any and all stock
dividends and stock splits between the date hereof
and the effective time of the Merger), either party
hereto may elect to renegotiate the provisions hereof
relating to the number of shares of NCBE Common Stock
issuable
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in the Merger or to terminate the Merger Agreement
and the transactions contemplated hereby.
(ii) The shares of White County Common Stock issued and
outstanding immediately prior to the time the Merger
shall become effective shall continue to be issued
and outstanding shares of the Surviving Corporation
and shall be held by NCBE.
(iii) The shares of New Bank held issued and outstanding
immediately prior to the effective time of the Merger
and held by NCBE shall be deemed canceled.
(b) No fractional shares or scrip representing fractional shares
of NCBE Common Stock will be issued by NCBE in connection with
the Merger, but in lieu thereof, any holder of White County
Common Stock entitled to such a fractional share shall, upon
surrender of the certificate or certificates formerly
representing such White County Common Stock, be paid cash,
without interest, by NCBE for such fractional share(s). The
cash paid for fractional shares shall be based upon the
closing bid price of NCBE on the day the Merger shall become
effective or the trading day immediately preceding the day the
Merger shall become effective if such day shall not be a
trading day.
(c) As soon as practicable after the time the Merger shall become
effective, and subject to the provisions set forth above
relating to the fractional shares, NCBE, or an Exchange Agent
designated thereby, will distribute to the former holders of
White County Common Stock in exchange for and upon surrender
for cancellation by such holders of a certificate or
certificates formerly representing shares of White County
Common Stock the certificate(s) for shares of NCBE Common
Stock in accordance with the provisions regarding the exchange
of shares of White County Common Stock set forth in paragraph
1(a)(i) of this Merger Agreement. Each certificate formerly
representing White County Common Stock (other than
certificates representing shares of White County Common Stock
subject to the rights of dissenting shareholders) shall be
deemed for all purposes to evidence the ownership of the
number of whole shares of NCBE Common Stock and cash for
fractional share interests in NCBE Common Stock into which
such shares have been converted. Certificates representing
shares of White County Common Stock held by a stockholder of
White County, shall be aggregated together in determining the
number of fractional shares for which such shareholder shall
receive cash as provided for herein. Until surrender of the
certificate or certificates formerly representing shares of
White County Common Stock, the holder thereof shall not be
entitled to receive any dividend or other payment or
distribution payable to holders of NCBE Common Stock. Upon
such surrender (or in lieu of surrender other provisions
reasonably satisfactory to NCBE as are made as set forth in
the next following paragraph), there shall be paid to the
person entitled thereto the aggregate amount of dividends or
other
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payments or distributions (in each case without interest)
which became payable after the time the Merger shall become
effective on the whole shares of NCBE Common Stock represented
by the certificates issued upon such surrender and exchange or
in accordance with such other provisions, as the case may be.
After the time the Merger shall become effective, the holders
of certificates formerly representing shares of White County
Common Stock shall cease to have rights with respect to such
shares except such rights, if any, as a holder of
certificates formerly representing shares of White County
Common Stock may have as dissenting shareholders pursuant to
Illinois Banking Act and except as aforesaid, their sole
rights shall be to exchange said certificates for certificates
for shares of NCBE Common Stock in accordance with this Merger
Agreement.
Certificates formerly representing shares of White County
Common Stock surrendered for cancellation by each shareholder
entitled to exchange shares of White County Common Stock for
shares of NCBE Common Stock by reason of the Merger shall be
accompanied by such appropriate instruments of transfer as
NCBE may reasonably require, provided, however, that if there
be delivered to NCBE by any person who is unable to produce
any such certificate formerly representing shares of White
County Common Stock for transfer (i) evidence to the
reasonable satisfaction of NCBE that any such certificate has
been lost, wrongfully taken or destroyed, and (ii) such
indemnity agreement as reasonably may be requested by NCBE to
save it harmless, and (iii) evidence to the reasonable
satisfaction of NCBE that such person is the owner of the
shares theretofore represented by each certificate claimed by
him to be lost, wrongfully taken or destroyed and that he is
the person who would be entitled to present each such
certificate and to receive shares of NCBE Common Stock
pursuant to this Merger Agreement, then NCBE, in the absence
of actual notice to it that any shares theretofore represented
by any such certificate have been acquired by a bona fide
purchaser, shall deliver to such person the certificate(s)
representing shares of NCBE Common Stock which such person
would have been entitled to receive upon surrender of each
such lost, wrongfully taken or destroyed certificate
representing shares of White County Common Stock.
2. After the Effective Time, there shall be no transfers of the stock
transfer books of New Bank of any certificates representing shares of
New Bank Common Stock. After the Effective Time, upon presentation to
the Surviving Corporation of certificates formerly representing
capital stock of New Bank, such certificates shall be canceled.
3. The Resulting Corporation shall have a capital structure equal to the
following:
(a) Common stock of $958,000, consisting of 9,600 shares of $100
par value all of which will be issued and outstanding
immediately following the Effective Time of the Merger; and
(b) Surplus of $1,540,000; and
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(c) Undivided profits, including capital reserves, of $4,603,000,
adjusted for all earnings and losses between June 30, 1994,
and the Effective Time of the Merger.
ARTICLE V
Effect of Merger
From and after the Effective Time, the Surviving Corporation shall
have all of the rights, interests, privileges, powers, immunities and
franchises (public and private) of each of the constituent corporations, and
all property (real, personal and mixed), all debts due on whatever account, and
all other choses in action, of each of the constituent corporations. All
interests of or belonging to or due to either of the constituent corporations
shall thereupon be deemed to be transferred to and vested in the Surviving
Corporation without act or deed and no title to any real estate or any interest
therein vested in either of the constituent corporations shall revert or be in
any way impaired because of the Merger.
ARTICLE VI
Surviving Corporation
From and after the Effective Time, the Surviving Corporation shall be
responsible for all obligations of each of the constituent corporations and
each claim existing and each action or proceeding pending by or against either
of the constituent corporations may be prosecuted as if the Merger had not
taken place, and the Surviving Corporation may be substituted in the place of
such constituent corporation. No right of any creditor of either constituent
corporation and no lien upon the property of either constituent corporation
shall be impaired by the Merger.
ARTICLE VII
Further Documents
If at any time the Surviving Corporation shall consider or be advised
that any further assignments, conveyances or assurances in law are necessary or
desirable to vest, perfect or confirm of record in the Surviving Corporation
the title to any property or rights of the constituent corporations, or
otherwise to carry out the provisions hereof, the persons who were the proper
officers and directors of the constituent corporations immediately prior to the
Effective Time (or their successors in office) shall execute and deliver any
and all proper deeds, assignments and assurances in law, and do all things
necessary or proper, to vest, perfect or confirm title to such property or
rights in the Surviving Corporation, including, but not limited to, filing with
each court or other public tribunal, agency or officer by which White County or
New Bank have been appointed in the capacity of fiduciary or agent, and in the
court file of each estate, suit or proceeding in which any of them has been
acting, a statement setting forth the information required by law or otherwise
to carry out the provisions hereof.
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ARTICLE VIII
Termination
Notwithstanding the adoption and approval of this Agreement and the
Merger by the shareholders of White County and New Bank, this Agreement and the
Merger may be terminated:
(a) At any time prior to the Effective Time, by the mutual consent
of the Boards of Directors of White County and New Bank; or
(b) This Merger Agreement shall automatically terminate in the
event of the termination of the Agreement and Plan of
Reorganization dated _________, 1994 by and between White
County and NCBE to which it relates.
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(c) At any time prior to the Effective Time, by White County or
New Bank if there shall have been a final judicial
determination (as to which all periods for appeal shall have
expired and no appeal shall be pending) that any material
provision of this Agreement or of the Merger is illegal,
invalid or unenforceable;
In the event that this Agreement is terminated pursuant to this
Article VIII, the Merger provided for herein shall be abandoned automatically
and without any further act or deed by the parties hereto.
ARTICLE IX
Conditions to Consummation of the Merger
The Merger is subject to the approval of all required regulatory
authorities, including but not limited to the Commissioner of Banks and Trust
Companies for the State of Illinois and to the approval of the stockholders of
New Bank and White County in accordance with the Illinois Banking Act. Each of
the merging banks agree to pay all examination expenses of the Illinois
Commissioner of Banks and Trust Companies incurred in connection with the
Merger.
The consummation of the Merger pursuant to this Merger Agreement and
the obligations of the parties hereto is subject to the satisfaction of the
provisions and conditions of the Agreement and Plan of Reorganization by and
between White County and NCBE dated _______1994.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed and attested to on their behalf by the following directors and
officers thereunto duly authorized as of the day and year first written above.
White County Bank: White County Interim Bank
By: _____________________________ By: _____________________________
Xxxxxx X. Xxxxxxxx, President Xxxxxx X. Xxxx, President
Attest: Attest:
_________________________________ _________________________________
by: _____________________________ by: _____________________________
its: ____________________________ its: ____________________________
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I, __________________, the duly appointed and incumbent Cashier of
White County State Bank, hereby certify that the Merger Agreement between White
County Bank and White County Interim Bank dated ______________, 1994, was
adopted and approved by the shareholders of White County Bank on ___________,
1995.
________________________________
I, __________________________, the duly appointed and incumbent
Cashier of White County Interim Bank, hereby certify that the Merger
Agreement between White County Bank and White County Interim Bank, dated
___________, 1994, was adopted and approved by the unanimous written consent of
the sole shareholder of White County Interim Bank dated _________________,
1995.
________________________________
Joined in by National City Bancshares, Inc.
____________________________
by _________________________
its ________________________
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