EXHIBIT 2
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (this "Agreement"), made
and entered into as of this 13th day of November, 1998, by and among
InterCounty Bancshares, Inc., an Ohio corporation ("ICB"); The National
Bank and Trust Company, a national bank and a wholly-owned subsidiary of
ICB ("NB&T"); Xxxxxx Xxxxx Insurance Agency, Inc., an Ohio corporation
("Agency"); Xxxxxx Xxxxx, XxXxx Xxxxx, Xxxxxxx Xxxxx, Xxxxxx Xxxxx and
Xxxxx Xxxxxxx (such natural persons hereinafter referred to as the
"Agency Shareholders");
WITNESSETH:
WHEREAS, the Agency Shareholders are the owners of all of the
outstanding common shares of Agency (the "Agency Shares"); and
WHEREAS, upon the terms and subject to the conditions of this
Agreement, Agency, Agency Shareholders, ICB and NB&T have agreed to
effectuate an exchange of stock pursuant to which (i) the Agency
Shareholders will exchange the Agency Shares solely in exchange for
voting common shares of ICB and (ii) NB&T will receive the Agency Shares
relinquished by the Agency Shareholders in the exchange (the
"Reorganization"); and
WHEREAS, the respective Boards of Directors of ICB, NB&T and Agency
have determined that the Reorganization is fair to, and in the best
interests of, their respective companies and shareholders and have
approved and adopted this Agreement and the Reorganization; and
WHEREAS, for federal income tax purposes, it is intended that the
Reorganization qualify as a reorganization under the provisions of
Section 368(a) of the Internal Revenue Code of 1986, as amended
("Code");
NOW, THEREFORE, in consideration of the foregoing and the
respective representations, warranties, covenants and agreements set
forth in this Agreement, the parties hereto agree as follows:
1. The Reorganization.
a. Upon the terms and subject to the conditions set forth in
this Agreement, at the Closing, the Agency Shareholders shall transfer
to NB&T all of the right, title and interest of the Agency Shareholders
in and to all of the Agency Shares, free and clear of all liens,
pledges, security interests, liabilities, claims and other encumbrances,
solely in exchange for the "Reorganization Consideration" (as defined in
Section 2 of this Agreement).
b. At the Closing, the Articles of Incorporation of Agency
and the Regulations of Agency in effect immediately prior to the
Reorganization shall be the Articles of Incorporation and the
Regulations of Agency immediately after the Reorganization, in each
case until amended and/or restated in accordance with applicable law.
c. From and after the Closing, until successors are duly
elected or appointed and qualified in accordance with applicable law,
the directors of Agency and the officers of Agency shall consist of
those persons serving as directors and officers of Agency immediately
prior to the Reorganization.
2. Consideration for Agency Shares and Exchange of Shares
Pursuant to the Reorganization. At the Closing, pursuant to the
Reorganization, each of the Agency Shareholders shall be entitled to
receive in exchange for each of the Agency Shares held by such Agency
Shareholder 35.56 voting common shares of ICB, no par value (the "ICB
Shares" or the "Reorganization Consideration"); provided, however, that
no fractional ICB Shares will be issued, and cash will be paid in lieu
of fractional shares based on the aforementioned exchange rate. The
Agency Shareholders shall cease to have any rights with respect to the
Agency Shares, except as otherwise provided in this Agreement or under
applicable law.
3. Closing. The Reorganization shall be consummated at the
offices of NB&T, 00 X. Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxx 00000, on a date
and at a time designated by ICB and NB&T as soon as practicable after
the satisfaction of all conditions set forth herein (the "Closing").
4. Tax Consequences of the Reorganization. It is intended that
the Reorganization shall constitute a "reorganization" within the
meaning of Code Section 368(a) and that this Agreement shall constitute
a "plan of reorganization" within the meaning of the Code and applicable
law.
5. Obligations of Agency Shareholders at Closing. At the
Closing, the Agency Shareholders shall deliver to NB&T:
a. Certificates for all of the outstanding Agency Shares,
duly endorsed in blank and in appropriate form for transfer and
accompanied by any other documents necessary for an effective transfer
of the Agency Shares; and
b. All of Agency's corporate minute books, share ledgers,
share certificate books and share transfer books, Agency's corporate
seal, if any, and control of the Agency and the Agency's properties.
6.Obligations of ICB at Closing. At the Closing, ICB shall
deliver to the Agency Shareholders the Reorganization Consideration, as
described in Section 2 of this Agreement.
7. Representations and Warranties of Agency and the Agency
Shareholders. Agency and the Agency Shareholders, jointly and
severally, represent and warrant to ICB and NB&T that each of the
following statements is true and accurate in all material respects:
a. The Agency Shareholders are the owners of the number of
Agency Shares set forth below. Each of the Agency Shareholders has the
right and power to transfer the Agency Shares to NB&T free and clear of
any and all liens, encumbrances, restrictions or conditions, and none of
the Agency Shareholders has granted any options, purchase rights or
other agreements or commitments of any nature whatsoever with respect to
the Agency Shares.
Xxxxxx Xxxxx 179 Agency Shares
XxXxx Xxxxx 179 Agency Shares
Xxxxxxx Xxxxx 132 Agency Shares
Xxxxxx Xxxxx 5 Agency Shares
Xxxxx Xxxxxxx 5 Agency Shares
b. Agency is a corporation duly organized, validly existing
and in good standing under the laws of the State of Ohio and possesses
all necessary corporate powers and authority, licenses and franchises to
own its property and assets and to conduct its business as and where it
is being conducted. Agency is in compliance in all material respects
with all applicable local, state or federal laws and regulations.
c. The authorized capital of Agency consists solely of 750
common shares, no par value, of which 500 common shares are issued and
outstanding and held solely by the Agency Shareholders, as set forth in
Section 7.a. of this Agreement. The Agency Shares have been duly
authorized and validly issued and are fully paid and non-assessable.
The Agency Shares were not issued in violation of the preemptive right
of any shareholder of Agency. There are no outstanding subscription
rights, options, conversion rights, warrants or other agreements or
commitments of any nature whatsoever obligating Agency to issue, deliver
or sell or restricting Agency from issuing, delivering or selling any
additional Agency common shares or obligating Agency to grant, extend or
enter into any such agreement or commitment.
d. This Agreement has been duly executed and delivered by
Agency and each of the Agency Shareholders. Agency has all requisite
corporate power and authority to enter into this Agreement and to
perform all of its obligations hereunder, and the execution and delivery
of this Agreement and the consummation of the transactions contemplated
hereby have been duly authorized by all necessary corporate action by
Agency. This Agreement is the valid and binding agreement of each of
the Agency and the Agency Shareholders, enforceable against each of them
in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization and moratorium laws and other laws of general
applicability affecting the enforcement of creditors' rights generally
and the effect of rules of law governing specific performance,
injunctive relief and other equitable remedies on the enforceability of
such documents.
e. Agency has made available to NB&T true and accurate
copies of its Articles of Incorporation and Regulations and has granted
NB&T access to all records of all meetings and other corporate actions
occurring before the date of this Agreement by the shareholders, Board
of Directors and Committees of the Board of Directors of Agency. The
minute books of Agency contain, in all material respects, complete and
accurate records of all meetings and other corporate actions of its
shareholders, Board of Directors and Committees of the Board of
Directors.
f. Except as set forth in a disclosure schedule delivered to
NB&T before the execution of this Agreement (the "Disclosure Schedule"),
the execution and delivery of this Agreement and, subject to the
regulatory filings and approvals referenced in Section 10.a.(1) of this
Agreement, the consummation of the transactions contemplated hereby will
not (1) conflict with or violate any provision of or result in the
breach of any provision of the Articles of Incorporation or Regulations
of Agency; (2) conflict with or violate any provision of or result in
the breach or the acceleration of or entitle any party to accelerate
(whether upon or after the giving of notice or lapse of time or both)
any obligation under, or otherwise materially affect the terms of, any
mortgage, lien, lease, agreement, license, instrument, order,
arbitration award, judgment or decree to which Agency is a party or by
which Agency or its property or assets is bound; (3) require the consent
of any party to any agreement or commitment to which Agency is a party
or by which Agency or its property or assets is bound, the failure to
obtain which could, individually or in the aggregate with all the other
failures to obtain required consents, have a material adverse effect on
the business, operations, condition (financial or otherwise) or
prospects of Agency; (4) result in the creation or imposition of any
lien, charge, pledge, security interest or other encumbrance upon any
property or assets of Agency; or (5) violate or conflict with any
applicable law, ordinance, rule or regulation.
g. The financial information included in the U.S. Income Tax
Returns for an S Corporation, with supporting schedules, of Agency as of
and for the three years ended December 31, 1997, 1996 and 1995, as
contained in the Disclosure Schedule (the "Agency Tax Returns"), fairly
presents on an income tax basis the financial position of Agency at such
dates and the results of its operations for such periods. Since
December 31, 1997, there have been no material adverse changes in the
financial condition, assets, liabilities, obligations, properties,
business or prospects of the Agency.
h. Except as disclosed in the Agency Tax Returns, Agency has
no liabilities or obligations material to the business condition
(financial or otherwise) of Agency, whether accrued, absolute,
contingent or otherwise, and whether due or to become due.
i. Neither the Agency Tax Returns nor any certificates,
statements or other information furnished to ICB or NB&T in writing by
the Agency contains any untrue statement of a material fact or omits to
state any material fact necessary to make the information contained
therein, in light of the circumstances under which they were made, not
misleading.
j. A list of all material fixed assets owned by Agency
carried on the books of Agency as of the date hereof (the "Personal
Property") is set forth in the Disclosure Schedule. All Personal
Property has been maintained in good working order, ordinary wear and
tear excepted. Agency owns and has good title to all of the Personal
Property, free and clear of any mortgage, lien, pledge, charge, claim,
conditional sales or other agreement, lease, right or encumbrance. A
copy of each personal property lease to which the Agency is a party is
included in the Disclosure Schedule.
k. The Agency owns no real property. There is no written
lease for the real property occupied by Agency, and the Agency and the
owner of the property have orally agreed to a month-to-month lease
arrangement.
l. The Disclosure Schedule contains a true, accurate and
complete list of all investments, other than investments in the Personal
Property, owned by Agency as of the date hereof (the "Investments"), the
name of the registered holder thereof, the location of the certificates
therefor or other evidence thereof and any stock powers or other
authority for transfer granted with respect thereto and a true, accurate
and complete list of the name of each bank or other depository in which
Agency has an account or safe deposit box. The Investments are owned by
Agency free and clear of all liens, pledges, claims, security interests,
encumbrances, charges or restrictions of any kind and may be freely
disposed of by Agency at any time.
m. Agency has duly and timely filed all federal, state,
county and local income, profits, franchise, excise, sales, customs,
property, use, occupation, withholding, social security and other tax
and information returns and reports required to have been filed by them
through the date hereof, and have paid or accrued all taxes and duties
(and all interest and penalties with respect thereto) due or claimed to
be due by Agency. Agency has, to the knowledge of Agency and the
Agency Shareholders, no liability for any taxes or duties (or interest
or penalties with respect thereto) of any nature whatsoever, and there
is no basis for any additional material claims or assessments. True
copies of the federal, state and local income tax returns of Agency for
each of the three tax years ended December 31, 1997, 1996 and 1995, have
been delivered to NB&T.
There are no federal, state or local tax returns or reports
not filed with respect to all income, profits, franchise, excise, sales,
customs, property, use, occupation, withholding, social security and other
taxes which would be due but for an extension of time for filing
having been granted. Agency has neither executed nor filed with the
Internal Revenue Service (hereinafter referred to as the "IRS") or any
state or local tax authority any agreement extending the period for
assessment and collection of any income, profits, franchise, excise,
sales, customs, property, use, occupation, withholding, social security
or other taxes, nor is Agency a party to any action or proceeding of any
governmental authority for assessment or collection of such taxes,
except tax liens or levies against customers of Agency. There is no
outstanding assessment or claim of collection of any of such taxes
against Agency. Agency has not received any notice of deficiency,
proposed deficiency or assessment from the IRS or any other governmental
agency with respect to any federal, state or local taxes. No tax return
of Agency is currently the subject of any audit by the IRS or any other
governmental agency. No material deficiencies have been asserted in
connection with the tax returns of Agency, and Agency has no reason to
believe that any deficiency would be asserted relating thereto. Agency
has never been a member of an "affiliated group of corporations" (within
the meaning of Section 1504(a) of the Code) filing consolidated returns,
and Agency is not a party to any tax sharing agreement.
n. The Disclosure Schedule contains a copy of each contract
or commitment of Agency involving more than $1,000.
o. Agency is not in default under any contract or agreement
of any kind, and no claim of such default by any party has been made or
is now, to the knowledge of Agency or any of the Agency Shareholders,
threatened, except to the extent such a default would not have a
material adverse effect on Agency.
p. The Disclosure Schedule contains copies of all policies
of insurance and bonds on the assets, operations, directors, officers
and employees of Agency. Such policies and bonds are valid and
enforceable.
q. There are no material actions, suits, proceedings or
investigations pending or threatened against or affecting the business,
operations or financial condition of Agency in any court or before any
federal, state, municipal or other governmental department, commission,
board, bureau, agency or instrumentality; neither the management of
Agency nor any of the Agency Shareholders has any knowledge of any basis
for any such action, suit, proceeding or investigation; and Agency is
not in default in respect of any judgment, order, writ, injunction or
decree of any court or any federal, state, municipal or other
governmental department, commission, board, bureau, agency or
instrumentality.
r. Agency has all material permits, licenses, orders and
approvals of all federal, state or local governmental or regulatory
bodies required for it to conduct its business as presently conducted,
and all of such material permits, licenses, orders and approvals are in
full force and effect, without the threat of suspension or cancellation.
Agency has received no notice that it is or may become subject to any
order or agreement with any federal or state agency charged with the
supervision or regulation of insurance agencies, nor any notice that it
is not in compliance with any statute or regulation.
s. (1) The Disclosure Schedule sets forth a true and
complete list of all qualified pension or profit-sharing plans,
simplified employee pension plans ("SEPs") deferred compensation,
consulting, bonus, group insurance plans or agreements and all other
incentive, welfare or employee benefit plans or agreements maintained
for the benefit of employees or former employees of Agency. Copies of
such plans and agreements, together with (a) when applicable, the most
recent actuarial and financial reports prepared with respect to any such
plan, (b) the most recent annual reports filed with any government
agency and (c) all rulings and determination letters received from
governmental agencies and any open requests for rulings or letters that
pertain to any such plan, have been delivered or will be delivered to
NB&T.
(2) Except as set forth in the Disclosure Schedule,
Agency does not currently maintain, nor has it ever maintained, any
"employee pension benefit plan," as defined in Section 3(2) of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA") or
any SEP (each such plan, together with any related trust or other
funding mechanism, as maintained by Agency, hereinafter referred to as a
"Pension Benefit Plan"), which is intended to be qualified under Section
401(a) or Section 408(k) of the Code.
(3) Agency does not currently maintain, nor has it
ever maintained, any Pension Benefit Plan subject to the provisions of
Title IV of ERISA.
(4) Agency does not currently participate in, nor
has it ever participated in, any multiemployer plan, as such term is
defined in Sections 3(37) and 4001 of ERISA.
(5) All of the Pension Benefit Plans have complied
and comply currently in all material respects, both as to form and
operation, with the provisions of ERISA and the Code, where required in
order to be tax-qualified under Section 401(a) or Section 408(k) of the
Code, and all other applicable laws, rules and regulations. Agency is
not aware of any event which might jeopardize the tax qualified status
of any Pension Benefit Plan. Each Pension Benefit Plan which is
intended to be qualified under Section 401(a) of the Code has received a
determination letter from the IRS which considers amendments made to the
Code by the Tax Reform Act of 1986. All reports required by any
governmental agency with respect to each Pension Benefit Plan have been
timely filed with such agency and, where required, distributed to
participants and beneficiaries of such Pension Benefit Plan within the
time required by law.
(6) Each "employee welfare benefit plan," as defined
in Section 3(1) of ERISA (each such plan together with any related trust
or other funding mechanism, as maintained by Agency, hereinafter
referred to as a "Welfare Benefit Plan") has been administered to date
in all material respects in compliance with the requirements of the Code
and ERISA, and all reports required by any governmental agency with
respect to each Welfare Benefit Plan has been timely filed with such
agency and, where required, distributed to participants and
beneficiaries of such Welfare Benefit Plan within the time required by
law.
(7) Neither Agency nor any plan fiduciary of any
Welfare Benefit Plan or Pension Benefit Plan has engaged in any
transaction in violation of Section 406(a) or (b) of ERISA (for which no
exemption exists under Section 408 of ERISA) or any "prohibited
transaction" (as defined in Section 4975(c)(1) of the Code) for which no
exemption exists under Section 4975(c)(1) of the Code.
t. (1) Agency, to its knowledge, is in material
compliance with all applicable Environmental Laws (hereinafter defined).
Agency has not received any written or oral communications from any
organization, person or otherwise, which alleges that either (a) Agency
is not in compliance with all applicable Environmental Laws or (b) any
properties or assets of Agency may have been affected by any Materials
of Environmental Concern (hereinafter defined).
(2) There is no Environmental Claim (hereinafter
defined) pending or, to the knowledge of Agency, threatened (a) against
Agency, (b) against any person or entity whose liability for any
Environmental Claim has or may have been retained or assumed by Agency
either contractually or by operation of law, or (c) against any real or
personal property which Agency owns, leases, manages, supervises or
participates in the management of, other than such as would not, either
individually or in the aggregate, have a material adverse effect on
Agency.
(3) There are not present or, to the knowledge of
Agency, past activities, conditions or incidents, including, without
limitation, the release or disposal of any Material of Environmental
Concern, that could reasonably form the basis of any Environmental Claim
against Agency or against any person or entity whose liability for any
Environmental Claim has or may have been retained or assumed by Agency,
not, either individually or in the aggregate, have a material adverse
effect on Agency.
(4) As used in this Agreement:
(a) "Environmental Claim" means any claim,
cause of action or notice (written or oral) by any person or entity
alleging potential liability (including, without limitation, potential
liability for investigatory costs, cleanup costs, governmental response
costs, natural resources damages, property damages, personal injuries or
penalties) arising out of, based on or resulting from (I) the presence,
or release into the environment, of any Material of Environmental
Concern at any location, whether or not owned by Agency or (II)
circumstances forming the basis of any violation, or alleged violation,
of any Environmental Law;
(b) "Environmental Laws" means all laws and regulations
relating to pollution or protection of human health or the
environment including, without limitation, laws and regulations relating
to emissions, discharges, releases or threatened releases of Materials
of Environmental Concern, or otherwise relating to the use, treatment,
storage, disposal, transport or handling of Materials of Environmental
Concern; and
(c) "Materials of Environmental Concern" shall
mean (I) any "hazardous waste" as defined in 42 U.S.C. Section 6903, as
amended from time to time, and regulations promulgated thereunder from
time to time; (II) any "hazardous substance" as defined in 42 U.S.C.
Section 9601, as amended from time to time, and regulations promulgated
thereunder from time to time; (III) asbestos; (IV) PCB's; (V) any
substance the presence of which on NB&T's or Agency's property is
prohibited by any applicable law, ordinance, or regulation; (VI)
petroleum products; and (VII) underground storage tanks and above ground
storage tanks.
u. Agency is in compliance with all federal, state or
other applicable laws respecting employment and employment practices,
terms and conditions of employment and wages and hours and have not and
are not engaged in any unfair labor practice, except where such failure
to comply or such practice would not have a material adverse effect on
the financial condition, results of operations, business or prospects of
Agency. No unfair labor practice complaint against Agency is pending
before any governmental agency or court and there is no labor strike,
dispute, slowdown or stoppage actually pending or threatened against or
involving Agency. No representation question exists in respect of the
employees of Agency and no labor grievance which might have a material
adverse effect upon Agency or the conduct of its business is pending or,
to the knowledge of Agency, threatened. Agency has not entered into any
collective bargaining agreement with any labor organization with respect
to any group of employees of Agency, and, to the knowledge of Agency,
there is no present effort nor existing proposal to attempt to unionize
any group of employees of Agency.
v. Agency currently has no subsidiaries.
w. Neither Agency nor any of the Agency Shareholders has
received (1) any notice or advice that Agency is or may become subject
to any order or agreement of any federal or state agency charged with
the supervision or regulation of insurance agencies or any other
governmental agency having supervisory or regulatory authority with
respect to Agency; (2) any notice or advice that it is not in
substantial compliance with any statute or regulation; or (3) any notice
from any governmental authority threatening to revoke any license,
franchise, permit or governmental authorization.
8. Representations and Warranties of ICB and NB&T.
a. ICB is a corporation duly organized, validly existing
and in good standing under the laws of the State of Ohio and has the
corporate power and authority to own or hold under lease all of its
properties and assets and to conduct its business and operations as
presently conducted. NB&T is a corporation duly organized, validly
existing and in good standing under the laws of the United States and
has the corporate power and authority to own or hold under lease all of
its properties and assets and to conduct its business and operation as
presently conducted.
b. This Agreement has been duly executed and delivered by
ICB and NB&T. Subject to the filing and approval of all requisite
regulatory notices and applications, ICB and NB&T have all requisite
corporate power and authority to enter into this Agreement and to
perform their obligations hereunder, and the execution and delivery of
this Agreement and the consummation of the transactions contemplated
hereby have been duly authorized by all necessary corporate action by
ICB and NB&T.
c. ICB has made available, or will promptly make
available, to Agency and each of the Agency Shareholders true and
accurate copies of ICB's Articles of Incorporation and Code of
Regulations. NB&T has made available, or will promptly make available,
to Agency and each of the Agency Shareholders true and accurate copies
of NB&T's Amended Articles of Association and Bylaws.
d. The execution and delivery of this Agreement and,
subject to the regulatory filing and approvals referenced in Section
10.a(1) of this Agreement, the consummation of the transactions
contemplated hereby will not (1) conflict with or violate any provision
of or result in the breach of any provision of the Articles of
Incorporation or Code of Regulations of ICB or the Amended Articles of
Association or Bylaws of NB&T; (2) conflict with or violate any
provision of or result in the breach or the acceleration of or entitle
any party to accelerate (whether upon or after the giving of notice or
lapse of time or both) any obligation under, or otherwise materially
affect the terms of, any mortgage, lien, lease, agreement, license,
instrument, order, arbitration award, judgment or decree to which ICB or
NB&T is a party or by which ICB or NB&T or their property or assets is
bound; (3) require the consent of any party to any agreement or
commitment to which ICB or NB&T is a party or by which ICB or NB&T or
their property or assets is bound, the failure to obtain which could,
individually or in the aggregate with all of the other failures to
obtain written consents, have a material adverse effect on the business,
operations, condition (financial or otherwise) or prospects of ICB or
NB&T; (4) result in the creation or imposition of any lien, charge,
pledge, security interest or other encumbrance upon any property or
assets of ICB or NB&T or give rise to any meritorious cause of action
against ICB or NB&T; or (5) violate or conflict with any applicable law,
ordinance, rule or regulation.
e. The authorized capital of ICB consists solely of
6,000,000 common shares, no par value, of which 3,154,254 shares are
outstanding; 50,000 Class A preferred shares, no par value, none of
which is outstanding; and 50,000 Class B preferred shares, no par value,
none of which is outstanding. In addition, there are outstanding
options to purchase 179,396 common shares of ICB granted with various
prices and terms pursuant to plans for the directors, officers and
employees of ICB and NB&T. All of the outstanding common shares of ICB
have been duly authorized and validly issued and are fully paid and non-
assessable. All of the outstanding stock of The National Bank and Trust
Company has been duly authorized and validly issued, is fully paid and
non-assessable and is owned by ICB.
f. ICB has delivered to each of the Agency Shareholders
copies of the following documents, each of which has been filed with the
Securities and Exchange Commission (the "SEC"):
(1) The Annual Report on Form 10-K for the fiscal
year ended December 31, 1997;
(2) The Annual Report to Shareholders for the fiscal
year ended December 31, 1997;
(3) The Proxy Statement for use in connection with
the 1998 Annual Meeting of Shareholders of ICB; and
(4) The Quarterly Reports on Form 10-Q for the
quarters ended March 31, 1998, June 30, 1998, and September 30, 1998.
Such filings did not, as of the dates on which such reports
were filed with the SEC, contain any untrue statement of a material fact
or omit any material fact necessary to make the statements contained
therein, in light of the circumstances under which they were made, not
misleading.
g. Since September 30, 1998, there have been no material
adverse changes in the financial condition, assets, liabilities,
obligations, properties, business or prospects of ICB and its
subsidiaries, taken as a whole.
h. ICB and NB&T have has all material permits, licenses,
orders and approvals of all federal, state or local governmental or
regulatory bodies required for them to conduct their businesses as
presently conducted, and all such material permits, licenses, orders and
approvals are in full force and effect, without the threat of suspension
or cancellation.
9. Covenants.
a. Conduct of Agency's Business. From the date of this
Agreement until the Effective Time, Agency and the Agency Shareholders
shall use all reasonable efforts to preserve intact Agency's business
organization and assets and maintain its rights, franchises and existing
relationships with customers, suppliers and business associates. Except
as set forth in Section 9.b. of this Agreement or with the prior written
consent of NB&T, from the date of this Agreement until the Closing,
Agency will conduct its business only in the ordinary course, in
accordance with past practices and policies and in compliance with all
applicable statutes, rules and regulations. Notwithstanding the
foregoing, without the prior written consent of NB&T, Agency will not:
(1) Authorize or agree to authorize the creation or
issuance of, or issue, sell or dispose of, or create any obligation to
issue, sell or dispose of, any stock, notes, bonds or other securities
of which Agency is the issuer, or any obligations convertible into or
exchangeable for any shares of its capital stock;
(2) Declare, set aside, pay or make any divided or
other distribution on its capital stock, or directly or indirectly
redeem, purchase or otherwise acquire any share thereof or enter into
any agreement with respect to the foregoing;
(3) Effect any stock split, recapitalization,
combination, exchange of shares, readjustment or other reclassification;
(4) Amend its Articles of Incorporation or
Regulations;
(5) Purchase, sell, assign or transfer any material
tangible asset or any material patent, trademark, trade name, copyright,
license, franchise, design or other intangible assets or property, or
purchase any real property;
(6) Mortgage, pledge, grant or suffer to exist any
lien or other encumbrance or charge on any assets or properties,
tangible or intangible, except for liens for taxes not yet delinquent;
(7) Waive any rights of material value or cancel any
material debts or claims;
(8) Incur any material obligation or liability
(absolute or contingent), including, without limitation, any tax
liability, or pay any material liability or obligation (absolute or
contingent), other than liabilities and obligations incurred in the
ordinary course of business;
(9) Cause any material adverse change in the amount
or general composition of liabilities;
(10) Enter into or amend any employment contract with
any of its employees, increase the compensation payable to any employee
or director or any relative of any such employee or director or become
obligated to increase any such compensation;
(11) Adopt or amend in any material respect any
employee benefit plan, severance plan or collective bargaining agreement
or make awards or distributions under any employee benefit plan not
consistent with past practice or custom;
(12) Acquire any stock or other equity interest in
any corporation, partnership, trust, joint venture or other entity;
(13) Make any material capital expenditure or
commitment for any material addition to property, plant, or equipment;
(14) Borrow or agree to borrow any funds, including
but not limited to repurchase transactions, or indirectly guarantee or
agree to guarantee any obligations of others;
(15) Enter into any securities transactions for its
own account or purchase or otherwise acquire any investment security for
its own account; or
(16) Agree, whether in writing or otherwise, to take
any action described in this Section 9.a.
b. Acquisition Transactions. Agency shall (1) not,
directly or indirectly, solicit or initiate any proposals or offers from
any person or entity, or discuss or negotiate with any such person or
entity, regarding any acquisition or purchase of all or a material
amount of the assets of, any equity securities of, or any merger,
consolidation or business combination with, Agency (hereinafter
collectively referred to as "Acquisition Transactions"), (2) not
disclose to any person any information not customarily disclosed
publicly or provide access to its properties, books or records or
otherwise assist or encourage any person in connection with any of the
foregoing, and (3) give NB&T prompt notice of any such inquiries, offers
or
proposals. If Agency fails to act in accordance with this subsection
and within one year after the date of this Agreement executes a letter
of intent or a definitive agreement in respect of an Acquisition
Transaction with another party, Agency shall pay to NB&T $20,000 in
immediately available federal funds within two days after the execution
of such letter of intent or definitive agreement.
c. Best Efforts for Qualification as Section 368(a)
Reorganization. Agency and Agency Shareholders shall use their best
efforts to cause the Reorganization to qualify for treatment as a
"reorganization" within the meaning of Code Section 368(a) and will take
no action which would cause the Reorganization not to qualify as a
"reorganization" within the meaning of Code Section 368(a).
d. Regulatory Approvals. All parties shall use their
reasonable efforts to file and obtain approval of all regulatory
applications necessary to consummate the transactions contemplated by
this Agreement. ICB, NB&T and Agency shall cooperate and shall cause
their respective directors, officers, employees, agents and advisors to
cooperate, to the extent reasonable or necessary, in connection with the
preparation of the regulatory applications and all other actions
necessary to consummate the transactions contemplated by this Agreement.
e. Employees. Upon satisfactory review of employment
files, all employees of Agency immediately prior to the Closing, except
those employees covered by a written employment or consulting agreement,
shall remain at will employees of Agency. Xxxxxxx Xxxxx shall execute
an employment agreement with Agency in the form attached to this
Agreement as Exhibit B effective upon Closing. Xxxxxx Xxxxx shall
execute a consulting agreement with Agency effective upon Closing. Such
agreement shall be in a form to be agreed upon by NB&T, Agency and
Xxxxxx Xxxxx.
Upon the request of ICB, Agency shall take all steps
necessary to commence the termination of Agency's employee benefit plans
prior to the Closing.
ICB shall, in its discretion, (1) provide coverage for
Agency's employees effective upon Closing under the health insurance
plan maintained by ICB or NB&T for the benefit of the employees of ICB
and its subsidiaries; provided, however, that any employee of Agency who
has been insured under the health insurance plan maintained by Agency
for at least 12 months prior to the Closing shall be covered by ICB's or
NB&T's health insurance plan without regard to any waiting periods and
limitations on pre-existing conditions; or (2) maintain in place the
health insurance plan currently maintained by Agency for the benefit of
its employees.
f. Affiliates Compliance with 1933 Act. (1) The
Disclosure Schedule sets forth all persons whom Agency and the Agency
Shareholders reasonably believe to be "affiliates" of Agency, as defined
in Rule 145 under the Securities Act of 1933 (the "Affiliates"). After
the date of this Agreement and until the effective date of the Closing,
Agency and each of the Agency Shareholders shall identify to NB&T each
additional person whom they reasonably believe to have thereafter become
an Affiliate.
(2) Concurrently with the execution of this
Agreement, each of Agency and the Agency Shareholders shall deliver to
NB&T a written agreement in which such Affiliate confirms that the NB&T
Shares received by such Affiliate pursuant to this Agreement shall be
transferable only in accordance with Rule 145 of the Securities Act of
1933 and other restrictions set forth in such agreement. After the date
of this Agreement, Agency and each of the Agency Shareholders shall use
their best efforts to obtain from each person who is later identified as
an Affiliate for delivery to NB&T before the Closing a similar
agreement.
g. Access. Until the Closing, Agency shall afford to
NB&T and to its officers and representatives reasonable access to
Agency's properties, personnel, books, records and affairs.
h. Confidentiality. The parties acknowledge the
confidential and proprietary nature of the information as hereinafter
described which has heretofore been exchanged and which will be received
from each other hereunder (hereinafter referred to as the "Information")
and agree to hold and keep the same confidential. Such Information will
include any and all financial, technical, commercial, marketing,
customer or other information concerning the business, operations and
affairs of a party that may be provided to the other, irrespective of
the form of the communications, by such party's employees or agents.
Such Information shall not include information that is or becomes
generally available to the public other than as a result of a disclosure
by a party or its representatives in violation of this Agreement, or
Information which is required to be furnished or used in connection with
legal proceedings. The parties agree that the Information will be used
solely for the purposes contemplated by this Agreement and that such
Information will not be disclosed to any person other than employees and
agents of a party who are directly involved in evaluating the
transaction. The Information shall not be used in any way detrimental
to a party, including use directly or indirectly in the conduct of the
other party's business or enterprise in which such party may have an
interest, now or in the future, and whether or not now in competition
with such other party. Upon the written request of the disclosing
party, upon termination of this Agreement, the other parties will
promptly return or destroy Information in their possession and certify
to the disclosing party that the party has done so.
i. Press Releases. ICB, NB&T and Agency shall consult
with each other before issuing any press release or otherwise making any
public statements with respect to the transactions contemplated by this
Agreement and no party to this Agreement shall issue any such press
release or make any such public statement without obtaining the prior
consent of ICB, NB&T and Agency, except as may be required by law or by
obligations pursuant to any listing agreement with any national
securities association.
j. Costs and Expenses. Whether or not the transactions
contemplated by this Agreement are consummated, all costs and expenses
incurred in connection with this Agreement and the transactions
contemplated hereby shall be paid by the party incurring such costs and
expenses.
k. Reasonable Efforts. Subject to the terms and
conditions herein provided, each of the parties hereto agrees to use all
reasonable 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.
l. Notification of Events. At all times from the date of
this Agreement until the Closing, each party shall promptly notify the
other in writing of any materially adverse business conditions
threatening its normal business operations or of the occurrence of any
event or the failure of any event to occur which might reasonably be
expected to result in a breach of or a failure to comply with any
representation, warranty, covenant, condition or agreement contained in
this Agreement or of the commencement of any action, suit, proceeding or
investigation against it.
m. Pooling of Interests. Neither the Agency nor any of
the Agency Shareholders shall take or cause to be taken any action
whether before or after the Effective Time that would disqualify the
Reorganization as a "pooling of interests" for accounting purposes.
n. Action by Agency Shareholders. Concurrently with the
execution and delivery of this Agreement, and as a condition and
material inducement to ICB's and NB&T's willingness to enter into this
Agreement, each of the Agency Shareholders shall (1) sign and deliver an
action in writing approving this Agreement and the transactions
contemplated hereby, and (2) sign and deliver a representation and
acknowledgment in the form attached hereto as Exhibit A.
o. Transfer of Agency Shares. No Agency Shareholder
shall transfer any of the Agency Shares prior to the Effective Time.
10. Closing Matters.
a. Conditions to Obligations of ICB and NB&T.
Notwithstanding any other provision of this Agreement, the obligations
of ICB and NB&T to close the transactions contemplated by this Agreement
shall be subject to the fulfillment of each of the following conditions:
(1) All permits, approvals, consents,
authorizations, exemptions or waivers of any federal or state
governmental body or agency necessary or appropriate for consummation of
the transactions contemplated by this Agreement shall have been obtained
and all notices required to be filed shall have been filed and any
objection or waiting period with respect to such notice shall have
expired;
(2) All waivers, consents and approvals of every
person necessary or appropriate for the consummation of the transactions
contemplated by this Agreement shall have been obtained, and none of
such waivers, consents and approvals shall contain any term or condition
which, in the judgment of ICB, individually or in the aggregate, would
materially reduce the value of Agency and its subsidiaries, taken as a
whole, to ICB;
(3) There shall not be in effect any federal or
state law, rule or regulation or any order or decision of a court of
competent jurisdiction which prevents or materially delays the
consummation of the transactions contemplated by this Agreement;
(4) ICB shall have (a) received an opinion from its
legal counsel, satisfactory to ICB, that the issuance of ICB Shares
pursuant to this Agreement need not be registered pursuant to the
Securities Act of 1933 (the "Securities Act") or pursuant to any
applicable state law, or (b) effectively registered the ICB Shares
pursuant to the Securities Act and pursuant to any applicable state law;
(5) The representations and warranties of Agency and
the Agency Shareholders contained in Section 7 of this Agreement shall
be true in all material respects at and as of the date hereof and at and
as of the day of the Closing as if made at and as of such time;
(6) Agency and the Agency Shareholders shall have
duly performed and complied in all material respects with all
agreements, covenants and conditions required by this Agreement to be
performed or complied with by Agency and the Agency Shareholders before
or on the day of the Closing;
(7) There shall not have been a material adverse
change in the financial condition, assets, liabilities, obligations,
properties, business or prospects of ICB, NB&T or Agency after the date
of this Agreement;
(8) Agency and the Agency Shareholders shall have
delivered to ICB a certificate dated the day of the Closing to the
effect set forth in subsections (5), (6), (7), (11), (15), (16) and (17)
of this Section 10.a. and such other certificates and documents to
evidence the taking of requisite actions in connection with this
Agreement as ICB may reasonably request;
(9) There shall not be any action or proceeding
commenced by or before any court or governmental agency or authority in
the United States, or threatened by any governmental agency or authority
in the United States, that challenges or seeks to prevent or delay the
consummation of the transactions contemplated by this Agreement or seeks
to impose material limitations on the ability of NB&T to exercise full
rights of ownership of the assets or business of Agency;
(10) There shall not have been proposed, nor shall
there be in effect, any federal or state law, rule, regulation, order or
statement of policy that, in the reasonable judgment of ICB, would: (a)
prevent or delay the consummation of the transactions contemplated by
this Agreement or interfere with the reasonable operation of the
business of ICB, NB&T or Agency; (b) materially adversely affect the
ability of ICB or NB&T to enjoy the economic or other benefits of the
transactions contemplated by this Agreement; or (c) impose any material
adverse condition, limitation or requirement on ICB or NB&T in
connection with the transactions contemplated by this Agreement;
(11) Agency shall not have incurred any damage,
destruction or similar loss, not covered by insurance, materially
affecting its businesses or properties;
(12) The Agency and its subsidiaries shall be
located, to the satisfaction of NB&T, in a place in Ohio with a
population of less than 5,000, to be selected by NB&T;
(13) Xxxxxxx Xxxxx shall have executed an employment
agreement with Agency in the form attached hereto as Exhibit B, to be
effective upon the Closing;
(14) Xxxxxx Xxxxx shall have executed a consulting
agreement and non-competition agreement with Agency in a form
satisfactory to NB&T, to be effective upon the Closing;
(15) ICB shall have received from X.X. Cloud & Co. a written
opinion dated the date of the Closing that ICB will be entitled to account
for the Reorganization under the "pooling of interests"
method;
(16) No accounts payable by Agency shall have
remained unpaid more than 45 days as of the date of the Closing;
(17) All notes payable by Agency shall be current in
accordance with their terms;
(18) Each of the Agency Shareholders shall have
executed and delivered to ICB a representation and acknowledgment in the
form attached hereto as Exhibit A;
(19) All of the Agency Shareholders shall have duly
signed an action in writing by the shareholders of the Agency adopting
this Agreement and approving the transactions contemplated herein;
(20) ICB shall have received certificates dated as of
a date as close as practicable to the Closing date from appropriate
authorities as to the good standing of Agency and its subsidiaries; and
(21) Each of the insurance companies with which
Agency currently has an agency or brokerage agreement shall have agreed
prior to the Closing to the continuation of its current agreement with
Agency or a subsidiary of Agency following the Closing or executed prior
to the Closing a new agreement with Agency or a subsidiary of Agency,
satisfactory to NB&T, to continue in effect after the Closing.
b. Conditions to the Obligations of Agency and the Agency
Shareholders.
The obligations of Agency and the Agency Shareholders
to effect the transactions contemplated by this Agreement shall be
subject to the fulfillment of each of the following conditions:
(1) The representations and warranties of ICB
contained in Section 8 of this Agreement shall be true in all material
respects at and as of the date hereof and at and as of the date of the
Closing as if made at and as of such time;
(2) There shall not be in effect any federal or
state law, rule or regulation or any order or decision of a court of
competent jurisdiction which prevents or materially delays the
consummation of the transactions contemplated by this Agreement;
(3) ICB shall have duly performed and complied in
all material respects with all agreements, covenants and conditions
required by this Agreement to be performed or complied with by them
before or at the Closing;
(4) There shall not have been a material adverse
change in the financial condition, assets, liabilities, obligations,
properties, business or prospects of ICB after the date of this
Agreement;
(5) ICB shall have delivered to Agency and the
Agency Shareholders a certificate dated the day of the Closing and
signed by the President and the Chief Financial Officer of ICB to the
effect set forth in subsections (1), (3) and (4) of this Section 10.b;
(6) Agency shall have executed an employment
agreement with Xxxxxxx Xxxxx substantially in the form attached hereto
as Exhibit B, to be effective upon the Closing; and
(7) Agency shall have executed a consulting
agreement and a non-competition agreement with Xxxxxx Xxxxx, to be
effective upon the Closing.
11 Termination. This Agreement may be terminated:
a. By mutual consent of the parties;
b. By any party to this Agreement if the Closing shall
not have occurred on or before December 31, 1998; provided, however,
that a party who is then in breach of any of its representations,
warranties, covenants or agreements under this Agreement in any material
respect may not exercise such right of termination if it has received
notice from the non-breaching party that the non-breaching party is
seeking specific performance of the breaching Party's obligations under
this Agreement; provided further, however, that no such termination
shall relieve the breaching party from liability for a breach that
occurs prior to such termination;
c. By ICB or NB&T if any event occurs which, in the
reasonable opinion of the Board of Directors of ICB or NB&T, would
preclude satisfaction of any of the conditions set forth in Section
10.a. of this Agreement; and
d. By Agency if any event occurs which, in the reasonable
opinion of the Board of Directors of Agency, would preclude satisfaction
of any of the conditions set forth in Section 10.b. of this Agreement.
12. Notice of Termination. In order to terminate this Agreement
pursuant to Section 11 of this Agreement, the party so acting shall give
written notice of such termination to all other parties. This Agreement
shall terminate on the date such notice is given.
a. Effect of Termination. In the event of the
termination of this Agreement, the provisions of this Agreement shall
become void and have no effect; provided, however, that (1) the
provisions set forth in Section 9.i. and Section 9.j. of this Agreement
shall survive such termination and shall remain in full force and
effect, and (2) a termination of this Agreement shall not affect the
liability of any party for an uncured breach of any term or condition of
this Agreement.
b. Amendment. This Agreement may be amended at any time
only by an instrument in writing signed on behalf of each of the parties
hereto.
c. Waiver. Any term or provision of this Agreement may
be waived in writing at any time by the party which is, or whose
shareholders are, entitled to the benefits thereof.
13. Miscellaneous
a. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed given if delivered
personally or mailed by registered or certified mail (return receipt
requested) to the parties at the following addresses (or at such other
address for a party as shall be specified by like notice):
If to Agency, to:
Xxxxxx Xxxxx Insurance Agency, Inc.
Xxx 000
Xxxxxxxxxxx, Xxxx 00000
Attention: Mr. Xxxxxxx Xxxxx
with a copy to:
Xx. Xxxxxxx X. Xxxxxx
Peelle Law Xxxxxxx Xx. XXX
Xxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
If to Xxxxxx Xxxxx or XxXxx Xxxxx, to:
Xx. Xxxxxx Xxxxx or Ms. XxXxx Xxxxx
X. Xxxx Xxxxxx
Xxxxxxxxxxx, Xxxx 00000
If to Xxxxxxx Xxxxx or Xxxxxx Xxxxx, to:
Mr. Xxxxxxx Xxxxx or Ms. Xxxxxx Xxxxx
Xxxxxx-Xxxxxxx Xxxx
Xxxxxxxxxxx, Xxxx 00000
If to Xxxxx Xxxxxxx, to:
Xx. Xxxxx Xxxxxxx
X. Xx. Xx. 00
Xxxxxxx, Xxxx 00000
If to ICB or NB&T, to:
InterCounty Bancshares, Inc.
X. Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Xx. Xxxxxxx X. Xxxxxx
with a copy to:
Xx. Xxxxxxx X. Xxxxxx
Vorys, Xxxxx, Xxxxxxx and Xxxxx
Xxxxx 0000, Xxxxxx Xxx
X. Xxxxxx Xxxxxx
O. Xxx 0000
Xxxxxxxxxx, Xxxx 00000-0000
b. Entire Agreement. This Agreement (including the
exhibits, documents and instruments referred to herein or therein) (1)
constitutes the entire agreement of the parties and supersedes all other
prior agreements and understandings, both written and oral, among the
parties, or any of them, with respect to the subject matter hereof; (2)
is not intended to and shall not confer any rights or remedies hereunder
upon any person other than ICB, NB&T, Agency and the Agency
Shareholders; (3) shall not be assigned by operation of law or
otherwise; and (4) shall be governed in all respects, including
validity, interpretation and effect, by the laws of the State of Ohio,
except to the extent that federal law may be applicable.
c. Execution In Counterparts. This Agreement may be
executed in two or more counterparts which together shall constitute a
single Agreement.
d. Headings. The headings of articles and sections
herein are for convenience of reference only, do not constitute a part
of this Agreement and shall not be deemed to limit or affect any of the
provisions hereof.
e. Nonsurvival of Representations and Warranties. No
representation or warranty shall survive the Closing.
f. Liabilities and Specific Performance. Each party to
this Agreement recognizes that, if it fails to perform, observe or
discharge any of its obligations under this Agreement, remedies at law
may not provide adequate relief to the other party or parties.
Therefore, each party is hereby authorized to demand specific
performance of this Agreement, and is entitled to temporary and
permanent injunctive relief, in a court of competent jurisdiction at any
time when any other party fails to comply with any of the provisions of
this Agreement applicable to it, in addition to any other remedy that
may be available in law or equity. To the extent permitted by
applicable law, each party hereby irrevocably waives any defense that it
might have based on the adequacy of a remedy at law that might be
asserted as a bar to such remedy of specific performance or injunctive
relief.
IN WITNESS WHEREOF, ICB, NB&T, Agency, Xxxxxx Xxxxx, XxXxx Xxxxx,
Xxxxxxx Xxxxx, Xxxxxx Xxxxx and Xxxxx Xxxxxxx signed or caused this
Agreement to be signed by their respective duly authorized officers
effective on the date first above written.
ATTEST: INTERCOUNTY BANCSHARES, INC.
By:
Xxxxxxx X. Xxxxx
Its President
ATTEST: THE NATIONAL BANK AND TRUST
COMPANY
By:
Xxxxxxx X. Xxxxx
Its President
ATTEST: XXXXX INSURANCE AGENCY, INC.
By:
XxXxx Xxxxx
Its President
Xxxxxx Xxxxx XxXxx Xxxxx
Xxxxxxx Xxxxx Xxxxxx Xxxxx
Xxxxx Xxxxxxx
ACKNOWLEDGMENT
STATE OF OHIO )
) SS:
COUNTY OF CLINTON )
BE IT REMEMBERED that on this ____ day of November, 1998,
personally came before me, a Notary Public in and for the State and
County aforesaid, Xxxxxxx X. Xxxxx, President of InterCounty Bancshares,
Inc., and The National Bank and Trust Company, and duly executed the
Agreement and Plan of Reorganization before me and acknowledged the same
to be his act and deed and the act and deed of said corporations and
that the facts therein are true.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this ____
day of November, 1998.
_________________________________
Notary Public
STATE OF OHIO )
) SS:
COUNTY OF CLINTON )
BE IT REMEMBERED that on this ____ day of November, 1998,
personally came before me, a Notary Public in and for the State and
County aforesaid, XxXxx Xxxxx, President of Xxxxx Insurance Agency,
Inc., and duly executed the Agreement and Plan of Reorganization before
me and acknowledged the same to be her act and deed individually and the
act and deed of said corporation and that the facts therein are true.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this ____
day of November, 1998.
_________________________________
Notary Public
STATE OF OHIO )
) SS:
COUNTY OF CLINTON )
BE IT REMEMBERED that on this ____ day of November, 1998,
personally came before me, a Notary Public in and for the State and
County aforesaid, Xxxxxx Xxxxx, and duly executed the Agreement and Plan
of Reorganization before me and acknowledged the same to be his act and
deed and that the facts therein are true.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this ____
day of November, 1998.
_________________________________
Notary Public
STATE OF OHIO )
) SS:
COUNTY OF CLINTON )
BE IT REMEMBERED that on this ____ day of November, 1998,
personally came before me, a Notary Public in and for the State and
County aforesaid, Xxxxxxx Xxxxx, and duly executed the Agreement and
Plan of Reorganization before me and acknowledged the same to be his act
and deed and that the facts therein are true.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this ____
day of November, 1998.
_________________________________
Notary Public
STATE OF OHIO )
) SS:
COUNTY OF CLINTON)
BE IT REMEMBERED that on this ____ day of November, 1998,
personally came before me, a Notary Public in and for the State and
County aforesaid, Xxxxxx Xxxxx, and duly executed the Agreement and Plan
of Reorganization before me and acknowledged the same to be her act and
deed and that the facts therein are true.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this ____
day of November, 1998.
_________________________________
Notary Public
STATE OF OHIO )
) SS:
COUNTY OF CLINTON )
BE IT REMEMBERED that on this ____ day of November, 1998,
personally came before me, a Notary Public in and for the State and
County aforesaid, Xxxxx Xxxxxxx, and duly executed the Agreement and
Plan of Reorganization before me and acknowledged the same to be her act
and deed and that the facts therein are true.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this ____
day of November, 1998.
_________________________________
Notary Public
EXHIBIT A
_____________________, 1998
InterCounty Bancshares, Inc.
X. Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Ladies and Gentlemen:
This letter is being delivered pursuant to and in accordance with
the Agreement and Plan of Reorganization dated this date (the
"Agreement") by and among InterCounty Bancshares, Inc., an Ohio
corporation ("ICB"), The National Bank and Trust Company, a national
bank and a wholly-owned subsidiary of ICB, Xxxxx Insurance Agency, Inc.,
an Ohio corporation ("Agency"), Xxxxxx Xxxxx, XxXxx Xxxxx, Xxxxxxx
Xxxxx, Xxxxxx Xxxxx and Xxxxx Xxxxxxx. Pursuant to such Agreement, I
may receive common shares of ICB pursuant to the Agreement (the
"Shares"). I have been advised that in order for the issuance of common
shares of ICB pursuant to the Agreement to qualify for certain
exemptions from registration pursuant to federal and state securities
laws, ICB must receive assurance of certain matters, and the transfer of
the Shares by me will be subject to certain restrictions. In addition,
I have been advised that as of the date hereof, I may be deemed to be an
"affiliate" of Agency, as that term is defined for purposes of Rule 145
of the Rules and Regulations of the Securities and Exchange Commission
(the "Rules and Regulations") under the Securities Act of 1933 (the
"Act"), that the Shares will be "restricted securities" within the
meaning of Rule 144 of the Rules and Regulations and that the
transactions pursuant to the Agreement will be accounted for as a
pooling of interests.
I hereby represent, warrant and covenant to ICB as follows:
1. My principal residence is located in the State of Ohio.
2. During the period of nine months from the date on which the
Shares are issued to me pursuant to the Agreement, I shall resell any of
such Shares only to persons resident within the State of Ohio to whom I
will have provided notice that the same restrictions on transfer will
apply to such person.
3. I am aware that the Shares will be deemed "restricted
securities" as defined in Rule 144 of the Act. In order to sell the
Shares in compliance with Rule 144, I must hold the Shares for at least
one year and may thereafter sell the Shares only in accordance with
certain procedures and subject to limitations on the amount that may be
sold in any three-month period.
4. I understand that ICB is under no obligation to register the
sale, transfer or other disposition of the Shares.
5. I am aware that no market may exist for the resale of such
Shares.
6. I am acquiring such Shares for investment and not for the
distribution of such Shares.
7. I am aware of the following restrictions on the transfer of
such Shares:
a. A restrictive legend will be placed on the certificate
representing the Shares restricting their transfer to residents of Ohio
during the nine months following issuance, as described above.
b. The following additional restrictive legends will be
placed on the certificate representing the Shares:
The shares represented by this certificate are restricted securities and
may not be sold, transferred, pledged or hypothecated except pursuant to
(i) an effective registration statement registering the shares under the
Securities Act of 1933 (the "Act"), (ii) a transaction permitted by
Rule 144 promulgated under the Act as to which the issuer has received
satisfactory evidence of compliance with the provisions of Rule 144, or
(ii) an opinion of counsel, satisfactory to issuer, that the transfer is
lawful.
The shares represented by this certificate were issued in a transaction
to which Rule 145 promulgated under the Act applies. The shares
represented by this certificate may only be transferred in accordance
with the terms of an agreement dated as of ___________, 1998, between
the registered holder hereof and InterCounty Bancshares, Inc., a copy of
which agreement is on file at the principal offices of InterCounty
Bancshares, Inc.
c. Stop-transfer instructions will be issued to ICB's
transfer agent preventing the transfer of the Shares by me without
compliance with all of the restrictions referenced herein.
8. I also understand that unless the transfer by me of the
Shares has been registered under the Act or is a sale made in conformity
with the provisions of Rule 145, ICB reserves the right to put the
following legend on the certificates representing the shares of ICB
issued to my transferee:
The shares represented by this certificate have not been registered
under the Securities Act of 1933, as amended (the "Act"), and were
acquired from a person who received such shares in a transaction to
which Rule 145 promulgated under the Act applies. The shares have been
acquired by the holder not with a view to, or for resale in connection
with, any distribution thereof within the meaning of the Act and may not
be sold, pledged or otherwise transferred except in accordance with an
exemption from the registration requirements of the Act.
9. I agree to cooperate with ICB so as not to jeopardize
treatment of the transactions contemplated by the Agreement as a pooling
of interests for accounting purposes. I understand that ICB agrees to
notify me when a sale, transfer or other disposition of the Shares will
not jeopardize the treatment of the transactions as a pooling of
interests for accounting purposes.
10. I shall not make any sale, transfer or other disposition of
the Shares in violation of the Act or the Rules and Regulations.
11. I have carefully read this letter and discussed its
requirements and other applicable limitations upon my ability to sell,
transfer or otherwise dispose of the Shares, to the extent I felt
necessary, with my legal counsel or legal counsel for the Agency.
Very truly yours,
_______________________________
_______________________________
Accepted this ____ day of ______________, 1998
by InterCounty Bancshares, Inc.
By: __________________________
__________________________
__________________________
EXHIBIT B
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "AGREEMENT") is entered into as of
the ___ day of __________, 1998, by and among ______ Insurance Agency,
Inc., an Ohio corporation (the "EMPLOYER"); The National Bank and Trust
Company, a national bank (the "BANK"); InterCounty Bancshares, Inc., an
Ohio corporation ("ICB"); and Xxxxxxx Xxxxx, an individual (the
"EMPLOYEE");
WITNESSETH:
WHEREAS, as a result of the skill, knowledge and experience of the
EMPLOYEE, the Boards of Directors of the EMPLOYER, the BANK and ICB
desire for the EMPLOYER to retain the services of the EMPLOYEE as a Vice
President of the EMPLOYER;
WHEREAS, the EMPLOYEE desires to serve as a Vice President of the
EMPLOYER; and
WHEREAS, the EMPLOYER, the BANK, ICB and the EMPLOYEE desire to
enter into this AGREEMENT to set forth the terms and conditions of the
employment relationship between the EMPLOYER and the EMPLOYEE;
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, the EMPLOYER, the BANK, ICB and the EMPLOYEE
hereby agree as follows:
1. Employment and Term. Upon the terms and subject to the
conditions of this AGREEMENT, the EMPLOYER hereby employs the EMPLOYEE,
and the EMPLOYEE hereby accepts employment, as a Vice President of the
EMPLOYER. The TERM of this AGREEMENT shall commence on
_____________________, 1998, and shall end thirty-six (36) months
thereafter (the "TERM"), subject to earlier termination as provided
herein, except that the provisions of Sections 6 and 7 of this AGREEMENT
shall remain in effect as set forth in such Sections.
2. Duties of EMPLOYEE.
(a) General Duties and Responsibilities. The EMPLOYEE shall
serve as a Vice President of the EMPLOYER. Subject to the direction of
the Board of Directors of the EMPLOYER, the EMPLOYEE shall perform all
duties and shall have all powers which are commonly incident to the
office of Vice President or which, consistent therewith, are delegated
to him by the Board of Directors or the President. Such duties shall
include, but not be limited to, marketing of the EMPLOYER and its
services and assisting in the supervision of other employees of the
EMPLOYER.
(b) Devotion of Entire Time to the Business of the EMPLOYER.
The EMPLOYEE shall devote his entire productive time, ability and
attention during normal business hours throughout the TERM to the
faithful performance of his duties to the EMPLOYER and its holding
company and their subsidiaries and affiliates. The EMPLOYEE shall not
directly or indirectly render any services of a business, commercial or
professional nature to any person or organization other than the
EMPLOYER and its holding company and their subsidiaries and affiliates
without the prior written consent of the Board of Directors of the
EMPLOYER; provided, however, that the EMPLOYEE shall not be precluded
from (i) reasonable participation in community, civic, charitable or
similar organizations; or (ii) the pursuit of personal investments which
do not interfere or conflict with the performance of the EMPLOYEE's
duties to the EMPLOYER. Nothing in this Section shall limit the
EMPLOYEE's right to invest in securities of any business that does not
provide services or products of the type or competing with those
provided by the EMPLOYER or its subsidiaries or affiliates or securities
constituting less than five percent of the outstanding securities of a
company whose securities are publicly traded.
3. Compensation, Benefits and Reimbursements.
(a) Salary. The EMPLOYEE shall receive during the TERM an
annual salary payable in equal installments not less often than monthly.
The amount of such annual salary shall be $55,000 until changed by the
Board of Directors of the EMPLOYER in accordance with Section 3(b) of
this AGREEMENT.
(b) Annual Salary Review. The annual salary of the EMPLOYEE
shall be reviewed by the Board of Directors of the EMPLOYER annually and
may be maintained or increased each January, in the Board of Directors'
discretion, based upon the EMPLOYEE's individual performance and the
overall profitability and financial condition of the EMPLOYER. The
results of the annual salary review shall be reflected in the minutes of
the appropriate meetings of the Board of Directors of the EMPLOYER.
(c) Automobile and Expenses. In addition to any compensation
received under Section 3(a) or (b) of this AGREEMENT, the EMPLOYER shall
continue to make available to the EMPLOYEE at the expense of the
EMPLOYER an automobile currently leased by the EMPLOYER until the
expiration of such lease. Upon the expiration of each lease, the
EMPLOYER shall reimburse the EMPLOYEE for mileage for the use of the
EMPLOYEE's personal automobile in accordance with the policies and
procedures of the EMPLOYER. The EMPLOYER shall also pay or reimburse
the EMPLOYEE for all reasonable travel, entertainment and miscellaneous
expenses incurred in connection with the performance of his duties under
this AGREEMENT. Such reimbursement shall be made in accordance with the
existing policies and procedures of the EMPLOYER pertaining to
reimbursement of expenses.
(d) Employee Benefit Programs. During the TERM, the EMPLOYEE
shall be entitled to participate in all formally established employee
benefit, bonus, pension and profit-sharing plans and similar programs
that are maintained by the EMPLOYER, the BANK or ICB from time to time,
including programs in respect of group health, disability or life
insurance, and all employee benefit plans or programs hereafter adopted
in writing by the Board of Directors of the EMPLOYER, the BANK or ICB
for the benefit of all employees (collectively, the "BENEFIT PLANS").
The EMPLOYEE shall be immediately eligible for coverage under the
BENEFIT PLANS and shall immediately be fully vested in ICB's employee
stock ownership plan and defined contribution plan upon entry on the
next entry date of each such plan. Notwithstanding any statement to the
contrary contained elsewhere in this Agreement, the EMPLOYER may
discontinue or terminate at any time any such BENEFIT PLANS, now
existing or hereafter adopted, to the extent permitted by the terms of
such plans and applicable law, and shall not be required to compensate
the EMPLOYEE for such discontinuance or termination.
(e) Vacation and Sick Leave. The EMPLOYEE shall be entitled,
without loss of pay, to be absent voluntarily from the performance of
his duties under this AGREEMENT, subject to the following conditions:
(i) The EMPLOYEE shall be entitled to four weeks of paid
vacation annually and annual sick leave in accordance with the policies
periodically established by the Board of Directors of the EMPLOYER for
employees of the EMPLOYER; and
(ii) In addition to paid vacations and sick leave, the
EMPLOYEE shall be entitled, without loss of pay, to absent himself
voluntarily from the performance of his employment with the EMPLOYER for
such additional period of time and for such valid and legitimate reasons
as the Board may, in its discretion, determine, and the Board may grant
to the EMPLOYEE a leave or leaves of absence, with or without pay, at
such time or times and upon such terms and conditions as such Board, in
its discretion, may determine.
4. Termination of Employment.
(a) General. The employment of the EMPLOYEE shall terminate at
any time during the TERM (i) at the option of the EMPLOYER upon the
delivery by the EMPLOYER of written notice of employment termination to
the EMPLOYEE, or (ii) at the option of the EMPLOYEE upon the delivery by
the EMPLOYEE of written notice of termination to the EMPLOYER if, unless
consented to in writing by the EMPLOYEE, (A) there is a material
reduction in responsibilities or authority of the EMPLOYEE or the
EMPLOYEE is assigned duties or responsibilities substantially
inconsistent with those normally associated with EMPLOYEE's position
described in Section 2(a) of this AGREEMENT), (B) the EMPLOYEE is no
longer a Vice President of the EMPLOYER or (C) the EMPLOYER otherwise
breaches this AGREEMENT in any material respect.
(b) Termination for JUST CAUSE. In the event that the EMPLOYER
terminates the employment of the EMPLOYEE before the expiration of the
TERM because of the EMPLOYEE's personal dishonesty, incompetence,
willful misconduct, breach of fiduciary duty involving personal profit,
intentional failure or refusal to perform the duties and
responsibilities assigned in this AGREEMENT, willful violation of any
law, rule, regulation (other than traffic violations or similar
offenses) or final cease-and-desist order, conviction of a felony or for
fraud or embezzlement, or material breach of any provision of this
AGREEMENT (collectively, "JUST CAUSE"), the EMPLOYEE shall not receive,
and shall have no right to receive, any compensation or other benefits
for any period after such termination.
(c) Termination Other Than for JUST CAUSE. In the event that
the employment of the EMPLOYEE is terminated by the EMPLOYER or is
terminated by the EMPLOYEE in accordance with Section 4(a)(ii) of this
AGREEMENT before the expiration of the TERM other than for JUST CAUSE,
the EMPLOYER shall be obligated (A) to pay to the EMPLOYEE, his
designated beneficiaries or his estate, for the remainder of the TERM,
the salary set forth in Section 3(a) of this AGREEMENT or the salary
payable to the EMPLOYEE as a result of any annual salary review in
accordance with Section 3(b) of this AGREEMENT; and (B) to provide to
the EMPLOYEE, at the EMPLOYER's expense, health, life and disability
benefits as provided in Section 3(d) of this Agreement, until the
expiration of the TERM or until the earlier date the EMPLOYEE obtains
substantially equivalent coverage from another full-time employer. In
the event that payments pursuant to this subsection (c) would result in
the imposition of a penalty tax pursuant to Section 280G of the Internal
Revenue Code of 1986, as amended ("SECTION 280G"), such payments shall
be reduced to the maximum amount which may be paid under SECTION 280G
without exceeding those limits. In the event a reduction in payments is
necessary in order to comply with the requirements of this AGREEMENT
relating to the limitations of SECTION 280G, the EMPLOYEE may determine,
in his sole discretion, which categories of payments are to be reduced
or eliminated.
(d) Death of the EMPLOYEE. The TERM shall automatically
terminate upon the death of the EMPLOYEE. In the event of such death,
the EMPLOYEE's estate shall be entitled to receive the compensation due
the EMPLOYEE through the last day of the calendar month in which the
death occurred, except as otherwise specified herein.
5. Consolidation, Merger or Sale of Assets. Nothing in this
AGREEMENT shall preclude the EMPLOYER from consolidating with, merging
into, or transferring all, or substantially all, of its assets to
another corporation that assumes all of the EMPLOYER's obligations and
undertakings hereunder. Upon such a consolidation, merger or transfer
of assets, the term "EMPLOYER," as used herein, shall mean such other
corporation or entity, and this AGREEMENT shall continue in full force
and effect.
6. Covenants Not to Compete or Solicit.
(a) Covenant Not to Compete. Commencing on the date of the
EMPLOYEE's termination of employment by EMPLOYER and ending on the third
anniversary thereof (the "RESTRICTED COMPETITION PERIOD"), the EMPLOYEE
agrees that he shall not, and shall not permit any of his AFFILIATES
(hereinafter defined), alone, together or in association with others,
either as principal, agent, owner, shareholder, officer, director,
partner, lender, investor, independent contractor, consultant or in any
other capacity, to engage in, have a financial interest in or be in any
way connected or affiliated with, or render advice or services to any
natural person, organization or entity of any type that engages in any
activity which would compete in any way in any county in which BANK has
a branch at the time of EMPLOYEE's termination of employment with
EMPLOYER with the business operated by the EMPLOYER of selling as agent
insurance of all types. For purposes of this Section 6, an "AFFILIATE"
of a person shall mean (i) any natural person, organization or entity of
any type that directly, or indirectly through one or more
intermediaries, controls, is controlled by or is under common control
with, such specified person; (ii) any relative or spouse of such person,
or any relative of such spouse, any one of whom has the same home as
such person; (iii) any trust or estate in which such person or any of
the persons specified in (ii) collectively own ten percent or more of
the total beneficial interest or of which any of such persons serve as
trustee, executor or in any similar capacity; or (iv) any corporation or
other organization in which such person or any of the persons specified
in (ii) are the beneficial owners collectively of ten percent or more of
any class of equity securities or ten percent or more of the equity
interest. For purposes of the definition of the term "AFFILIATE,"
"control" means the power to direct the management and policies of such
person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise. The provision of financial
planning services or the sale as agent or broker of securities, other
than the sale of insurance products or the referral of persons to an
insurance agency competing with the EMPLOYER, will not be deemed to be
competition with the business of the EMPLOYER for purposes of this
Section 6.
(b) Covenant Not to Solicit. During the RESTRICTED COMPETITION
PERIOD, the EMPLOYEE further agrees that he will not, and will not
permit any AFFILIATE, directly or indirectly, to solicit, divert, take
away or interfere with, or attempt to solicit, divert, take away or
interfere with, the relationship of the EMPLOYER with any person who is
or was a customer, employee or supplier of the EMPLOYER at any time
during the period commencing two years immediately prior to the date of
this AGREEMENT and ending upon the EMPLOYEE's termination of employment
with the EMPLOYER.
(c) Interpretation of Covenants. The parties to this AGREEMENT
acknowledge and agree that the duration and area for which the covenant
not to compete and the covenant not to solicit are to be effective are
fair and reasonable and are reasonably required for the protection of
the business of the EMPLOYER. In the event that any court determines
that the time period or the area, or both of them, are unreasonable as
to any covenant and that such covenant is to that extent unenforceable,
the parties hereto agree that the covenant shall remain in full force
and effect for the greatest time period and in the greatest area that
would not render it unenforceable. The parties intend that each
covenant shall be deemed to be a series of separate covenants, one for
each and every county of each and every state of the United States of
America and one for each and every political subdivision of each and
every other country in which the covenant not to compete or other
covenant is intended to be effective and is not proscribed by law.
(d) Waiver of Defense. The EMPLOYEE hereby expressly waives any
objection to or defense in respect of the geographical scope or duration
of the restriction on competition and other covenants for the protection
of the business of the EMPLOYER provided in this Section 6.
7. Confidential Information. The EMPLOYEE acknowledges that
during his employment he will learn and have access to confidential
information regarding the EMPLOYER and its customers and businesses.
The EMPLOYEE agrees and covenants, during the term of this AGREEMENT and
thereafter, not to disclose or use for his own benefit, or the benefit
of any other person or entity, any confidential information, unless or
until the EMPLOYER consents to such disclosure or use or such
information becomes common knowledge in the industry or is otherwise
legally in the public domain. The EMPLOYEE shall not, during the term
of this AGREEMENT and thereafter, knowingly disclose or reveal to any
unauthorized person any confidential information relating to the
EMPLOYER, its parent, subsidiaries or affiliates, or to any of the
businesses operated by them, and the EMPLOYEE confirms that such
information constitutes the exclusive property of the EMPLOYER. The
EMPLOYEE shall not otherwise knowingly act or conduct himself (a) to the
material detriment of the EMPLOYER, its subsidiaries, or affiliates, or
(b) in a manner which is inimical or contrary to the interests of the
EMPLOYER.
8. Equitable Remedies. The parties hereto acknowledge and
agree that the EMPLOYEE's obligations contained in this AGREEMENT are of
special and unique character which give them a peculiar value to the
EMPLOYER and that EMPLOYER will suffer immediate and irreparable harm to
its good will and business which will not be compensable by damages
alone in the event the EMPLOYEE repudiates or breaches the provisions
hereof or threatens or attempts to do so. The EMPLOYEE, therefore,
expressly agrees that, in addition to any other rights or remedies that
the EMPLOYER may have at law or in equity or by reason of any other
agreement, the EMPLOYER shall be entitled to obtain a temporary,
preliminary and/or permanent injunction in order to prevent or restrain
any such breach by the EMPLOYEE or any partner, agent, representative,
employer, employee and/or any other persons acting directly or
indirectly, in concert or in participation with the EMPLOYEE.
9. Nonassignability. Neither this AGREEMENT nor any right or
interest hereunder shall be assignable by the EMPLOYEE, his
beneficiaries or his legal representatives without the EMPLOYER's prior
written consent; provided, however, that nothing in this Section 9 shall
preclude (a) the EMPLOYEE from designating a beneficiary to receive any
benefits payable hereunder upon his death, or (b) the executors,
administrators, or other legal representatives of the EMPLOYEE or his
estate from assigning any rights hereunder to the person or persons
entitled thereto.
10. No Attachment. Except as required by law, no right to
receive payment under this AGREEMENT shall be subject to anticipation,
commutation, alienation, sale, assignment, encumbrance, charge, pledge
or hypothecation or to execution, attachment, levy, or similar process
of assignment by operation of law, and any attempt, voluntary or
involuntary, to effect any such action shall be null, void and of no
effect.
11. Binding Agreement. This AGREEMENT shall be binding upon,
and inure to the benefit of, the EMPLOYEE and the EMPLOYER and their
respective permitted successors and assigns.
12. Amendment of AGREEMENT. This AGREEMENT may not be modified
or amended, except by an instrument in writing signed by the parties
hereto.
13. Waiver. No term or condition of this AGREEMENT shall be
deemed to have been waived, nor shall there be an estoppel against the
enforcement of any provision of this AGREEMENT, except by written
instrument of the party charged with such waiver or estoppel. No such
written waiver shall be deemed a continuing waiver, unless specifically
stated therein, and each waiver shall operate only as to the specific
term or condition waived and shall not constitute a waiver of such term
or condition for the future or as to any act other than the act
specifically waived.
14. Severability. If, for any reason, any provision of this
AGREEMENT is held invalid, such invalidity shall not affect the other
provisions of this AGREEMENT not held so invalid, and each such other
provision shall, to the full extent consistent with applicable law,
continue in full force and effect. If this AGREEMENT is held invalid or
cannot be enforced, then any prior Agreement between the EMPLOYER (or
any predecessor thereof) and the EMPLOYEE shall be deemed reinstated to
the full extent permitted by law, as if this AGREEMENT had not been
executed.
15. Headings. The headings of the paragraphs herein are
included solely for convenience of reference and shall not control the
meaning or interpretation of any of the provisions of this AGREEMENT.
16. Governing Law; Regulatory Authority. This AGREEMENT has
been executed and delivered in the State of Ohio and its validity,
interpretation, performance and enforcement shall be governed by the
laws of the State of Ohio, except to the extent that federal law is
governing.
17. Effect of Prior Agreements. This AGREEMENT contains the
entire understanding between the parties hereto and supersedes any prior
employment agreement between the EMPLOYER or any predecessor of the
EMPLOYER and the EMPLOYEE.
18. Notices. Any notice or other communication required or
permitted pursuant to this AGREEMENT shall be deemed delivered if such
notice or communication is in writing and is delivered personally or by
facsimile transmission or is deposited in the United States mail,
postage prepaid, addressed as follows:
If to the EMPLOYER, the BANK or ICB:
The National Bank and Trust Company
X. Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Xx. Xxxxxxx X. Xxxxx
If to the EMPLOYEE:
Mr. Xxxxxxx Xxxxx
Xxxxxx-Xxxxxxx Road
Waynesville, Ohio 45068
IN WITNESS WHEREOF, the parties hereto have caused this AGREEMENT
to be executed by their duly authorized officers or have signed this
AGREEMENT, each as of the day and year first above written.
Attest: ____________ INSURANCE AGENCY, INC.
________________________________ By_________________________________
Attest: THE NATIONAL BANK AND TRUST COMPANY
________________________________ By_________________________________
Attest: INTERCOUNTY BANCSHARES, INC.
________________________________ By_________________________________
Attest:
________________________________ ___________________________________
Xxxxxxx Xxxxx
