AGREEMENT AND PLAN OF MERGER
BY AND BETWEEN
SECURITY CAPITAL CORPORATION
AND
XXXXXXXX & XXXXXX CORPORATION
Dated as of March 14, 1997
TABLE OF CONTENTS
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ARTICLE I - THE MERGER
SECTION 1.1 The Merger................................................. 1
SECTION 1.2 Effective Time............................................. 1
SECTION 1.3 Effect of the Merger....................................... 2
SECTION 1.4 Articles of Incorporation; By-Laws......................... 2
SECTION 1.5 Directors and Officers..................................... 2
SECTION 1.6 Conversion of Securities................................... 2
SECTION 1.7 Election Procedures........................................ 4
SECTION 1.8 Adjustments for Dilution and Other Matters................. 6
SECTION 1.9 Exchange of Certificates................................... 6
SECTION 1.10 Stock Transfer Books....................................... 9
SECTION 1.11 Company Common Stock....................................... 9
ARTICLE II - REPRESENTATIONS AND WARRANTIES OF SELLER
SECTION 2.1 Organization and Qualification; Subsidiaries............... 9
SECTION 2.2 Articles of Incorporation and By-Laws...................... 11
SECTION 2.3 Capitalization............................................. 11
SECTION 2.4 Authority.................................................. 12
SECTION 2.5 No Conflict; Required Filings and Consents................. 12
SECTION 2.6 Compliance; Permits........................................ 13
SECTION 2.7 Securities and Banking Reports; Financial Statements....... 13
SECTION 2.8 Absence of Certain Changes or Events....................... 14
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SECTION 2.9 Absence of Litigation...................................... 15
SECTION 2.10 Employee Benefit Plans..................................... 15
SECTION 2.11 Registration Statement; Proxy Statement/Prospectus......... 18
SECTION 2.12 Title to Property.......................................... 19
SECTION 2.13 Environmental Matters...................................... 19
SECTION 2.14 Absence of Agreements...................................... 20
SECTION 2.15 Taxes...................................................... 21
SECTION 2.16 Insurance.................................................. 21
SECTION 2.17 Brokers.................................................... 22
SECTION 2.18 Tax Matters................................................ 22
SECTION 2.19 Material Adverse Effect.................................... 22
SECTION 2.20 Material Contracts......................................... 22
SECTION 2.21 Opinion of Financial Advisor............................... 22
SECTION 2.22 Vote Required.............................................. 22
SECTION 2.23 Options; Employment Agreements............................. 23
ARTICLE III - REPRESENTATIONS AND WARRANTIES OF THE COMPANY
SECTION 3.1 Organization and Qualification; Subsidiaries............... 23
SECTION 3.2 Articles of Incorporation and By-Laws...................... 24
SECTION 3.3 Capitalization............................................. 24
SECTION 3.4 Authority.................................................. 25
SECTION 3.5 No Conflict; Required Filings and Consents................. 25
SECTION 3.6 Compliance; Permits........................................ 26
SECTION 3.7 Securities and Banking Reports; Financial Statements....... 26
SECTION 3.8 Absence of Certain Changes or Events....................... 27
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SECTION 3.9 Absence of Litigation...................................... 28
SECTION 3.10 Employee Benefit Plans..................................... 28
SECTION 3.11 Registration Statement; Proxy Statement/Prospectus......... 29
SECTION 3.12 Title to Property.......................................... 30
SECTION 3.13 Absence of Agreements...................................... 30
SECTION 3.14 Taxes...................................................... 30
SECTION 3.15 Brokers.................................................... 31
SECTION 3.16 Tax Matters................................................ 31
SECTION 3.17 Material Adverse Effect.................................... 31
ARTICLE IV - COVENANTS OF SELLER
SECTION 4.1 Affirmative Covenants...................................... 32
SECTION 4.2 Negative Covenants......................................... 32
SECTION 4.3 Letter of Seller's Accountants............................. 35
SECTION 4.4 Access and Information..................................... 36
SECTION 4.5 Update Disclosure; Breaches................................ 36
SECTION 4.6 Affiliates; Tax Treatment.................................. 37
SECTION 4.7 Expenses................................................... 37
SECTION 4.8 Delivery of Shareholder List............................... 38
SECTION 4.9 Loan and Investment Policies............................... 38
ARTICLE V - COVENANTS OF THE COMPANY
SECTION 5.1 Affirmative Covenants...................................... 38
SECTION 5.2 Negative Covenants......................................... 39
SECTION 5.3 Access and Information..................................... 39
SECTION 5.4 Breaches................................................... 40
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SECTION 5.5 Stock Exchange Listing..................................... 40
SECTION 5.6 Tax Treatment.............................................. 40
SECTION 5.7 Stock Options.............................................. 40
ARTICLE VI - ADDITIONAL AGREEMENTS
SECTION 6.1 Proxy Statement/Prospectus; Registration Statement......... 41
SECTION 6.2 Meeting of Seller's Shareholders........................... 41
SECTION 6.3 Appropriate Action; Consents; Filings...................... 42
SECTION 6.4 Employee Stock Options and Other Employee Benefit Matters.. 42
SECTION 6.5 Directors' and Officers' Indemnification and Insurance..... 42
SECTION 6.6 Notification of Certain Matters............................ 44
SECTION 6.7 Public Announcements....................................... 44
SECTION 6.8 Customer Retention......................................... 44
SECTION 6.9 Data Services Conversion................................... 45
SECTION 6.10 Incentive Bonus Pool....................................... 45
SECTION 6.11 Seller Share Purchases..................................... 45
ARTICLE VII - CONDITIONS OF MERGER
SECTION 7.1 Conditions to Obligation of Each Party to Effect the Merger 46
SECTION 7.2 Additional Conditions to Obligations of the Company........ 46
SECTION 7.3 Additional Conditions to Obligations of Seller............. 48
ARTICLE VIII - INDUCEMENT
SECTION 8.1 Inducement................................................. 49
ARTICLE IX - TERMINATION, AMENDMENT AND WAIVER
SECTION 9.1 Termination................................................ 51
SECTION 9.2 Effect of Termination...................................... 54
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SECTION 9.3 Amendment.................................................. 54
SECTION 9.4 Waiver..................................................... 55
ARTICLE X - GENERAL PROVISIONS
SECTION 10.1 Non-Survival of Representations, Warranties and Agreements. 55
SECTION 10.2 Non-Survival of Representations, Warranties and Agreements. 55
SECTION 10.3 Notices.................................................... 55
SECTION 10.4 Certain Definitions........................................ 56
SECTION 10.5 Headings................................................... 57
SECTION 10.6 Severability............................................... 57
SECTION 10.7 Entire Agreement........................................... 58
SECTION 10.8 Assignment................................................. 58
SECTION 10.9 Parties in Interest........................................ 58
SECTION 10.10 Governing Law.............................................. 58
SECTION 10.11 Counterparts............................................... 58
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ANNEX A SUBSIDIARIES OF SELLER A-1
ANNEX B EMPLOYEE STOCK OPTIONS AND OTHER EMPLOYEE BENEFIT MATTERS B-1
EXHIBIT 2.23 2.23.1
EXHIBIT 9.1 INDEX GROUP 9.1-1
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Index of Defined Terms
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Section
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Acquisition Event.................................................Section 8.1(c)
Acquisition Proposal..............................................Section 8.1(d)
affiliate........................................................Section 10.4(a)
Aggregate Consideration...........................................Section 1.6(b)
Agreement...............................................................Preamble
Articles of Merger...................................................Section 1.2
Average Per Share Consideration...................................Section 1.6(b)
Bank Merger.............................................................Preamble
Bank Merger Agreement.............................................Section 4.1(f)
beneficial owner.................................................Section 10.4(b)
BHCA..............................................................Section 2.1(a)
Blue Sky Laws.....................................................Section 2.5(b)
Bonus Pool..........................................................Section 6.10
business day.....................................................Section 10.4(c)
Cash Designated Shares........................................Section 1.7(b)(ii)
Cash Election Shares.................................................Section 1.7
Certificates.........................................................Section 1.7
Claim.............................................................Section 6.5(a)
Code....................................................................Preamble
Company.................................................................Preamble
Company Approvals.................................................Section 3.1(a)
Company Articles.....................................................Section 1.4
Company Average Price.....................................Section 9.1(a)(vii)(A)
Company By-Laws......................................................Section 1.4
Company Common Stock...........................................Section 1.6(a)(A)
Company Disclosure Schedule..........................................Article III
Company Lead Bank.......................................................Preamble
Company Plans....................................................Section 3.10(a)
Company Preferred Stock...........................................Section 3.3(a)
Company Reports...................................................Section 3.7(a)
Company SEC Reports...............................................Section 3.7(a)
Company Subsidiaries..............................................Section 3.1(a)
Company Subsidiary................................................Section 3.1(a)
control..........................................................Section 10.4(d)
Data Processing Conversion...........................................Section 1.2
DFI...............................................................Section 2.1(a)
Division of Savings Institutions..................................Section 2.1(a)
Effective Time.......................................................Section 1.2
Election Deadline....................................................Section 1.7
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Election Form Record Date............................................Section 1.7
Election Forms.......................................................Section 1.7
Environmental Claims................................................Section 2.13
Environmental Laws..................................................Section 2.13
ERISA............................................................Section 2.10(a)
Exchange Act......................................................Section 2.5(b)
Exchange Agent.......................................................Section 1.7
Exchange Fund.....................................................Section 1.9(a)
Exhibit 21........................................................Section 3.1(c)
Expenses..........................................................Section 4.7(b)
FDIC..............................................................Section 2.1(a)
Final Index Price......................................Section 9.1(a)(vii)(C)(4)
Final Price............................................Section 9.1(a)(vii)(C)(3)
Governmental Authority..............................................Section 2.13
Indemnified Parties...............................................Section 6.5(a)
Indemnified Party.................................................Section 6.5(d)
Index Group............................................Section 9.1(a)(vii)(C)(1)
Initial Index Price....................................Section 9.1(a)(vii)(C)(2)
Insurance Amount..................................................Section 6.5(b)
IRS.................................................................Section 2.15
ISO..............................................................Section 2.10(h)
Laws..............................................................Section 2.5(a)
Loan Property.......................................................Section 2.13
Mailing Date.........................................................Section 1.7
Material Adverse Effect...........................................Section 2.1(d)
Merger..................................................................Preamble
Mixed Election Shares................................................Section 1.7
NASDAQ...............................................................Section 1.6
NASDAQ/NMS........................................................Section 1.6(b)
No Election Shares...................................................Section 1.7
Nullifying Event..................................................Section 8.1(e)
Option Exercise Agreement...........................................Section 2.23
Option Plans.........................................................Section 5.7
Participation Facility..............................................Section 2.13
Per Share Stock Consideration.....................................Section 1.6(b)
person...........................................................Section 10.4(e)
Plans............................................................Section 2.10(a)
Proxy Statement/Prospectus..........................................Section 2.11
Registration Statement..............................................Section 3.11
SEC...............................................................Section 2.7(a)
Section 180.0622(2)(b) of the WBCL...................................Section 2.3
Securities Act....................................................Section 2.5(b)
Seller..................................................................Preamble
Seller's Bank...........................................................Preamble
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Seller Affiliate.....................................................Section 4.6
Seller Approvals..................................................Section 2.1(a)
Seller Articles......................................................Section 2.2
Seller By-Laws.......................................................Section 2.2
Seller Common Stock...............................................Section 1.6(a)
Seller Disclosure Schedule............................................Article II
Seller Option........................................................Section 5.7
Seller Preferred Stock...............................................Section 2.3
Seller Reports....................................................Section 2.7(a)
Seller SEC Reports................................................Section 2.7(a)
Seller Shareholders' Meeting........................................Section 2.11
Seller Subsidiaries...............................................Section 2.1(a)
Seller Subsidiary.................................................Section 2.1(a)
Series A Preferred Stock..........................................Section 3.3(a)
Significant Subsidiary............................................Section 8.1(f)
Stock Amount.........................................................Section 1.6
Stock Designated Shares.......................................Section 1.7(a)(ii)
Stock Election Shares................................................Section 1.7
subsidiaries.....................................................Section 10.4(f)
subsidiary.......................................................Section 10.4(f)
Surviving Corporation................................................Section 1.1
takeover proposal.................................................Section 4.2(e)
Tax.................................................................Section 2.15
Tax Returns.........................................................Section 2.15
Taxes...............................................................Section 2.15
Title IV Plan....................................................Section 2.10(b)
Trigger Event.....................................................Section 8.1(b)
Valuation Period.....................................................Section 1.6
Valuation Period Market Value.....................................Section 1.6(b)
Valuation Period Share Number.....................................Section 1.6(b)
WBCL....................................................................Preamble
WBL...............................................................Section 2.5(b)
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AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of March 14, 1997 (the "Agreement")
between Security Capital Corporation, a Wisconsin corporation (the "Seller") and
Xxxxxxxx & Ilsley Corporation, a Wisconsin corporation (the "Company").
WHEREAS, the Boards of Directors of the Company and the Seller have each
determined that it is fair to and in the best interests of their respective
shareholders for the Seller to merge with and into the Company (the "Merger")
upon the terms and subject to the conditions set forth herein and in accordance
with the Wisconsin Business Corporation Law (the "WBCL");
WHEREAS, the respective Boards of Directors of the Company and the Seller have
each approved the Merger of the Seller with and into the Company, upon the terms
and subject to the conditions set forth herein, and adopted this Agreement;
WHEREAS, for federal income tax purposes, it is intended that the Merger shall
qualify as a reorganization under the provisions of Section 368 of the Internal
Revenue Code of 1986, as amended (the "Code"); and
WHEREAS, immediately following with the Merger, the parties intend to
consummate a merger of Seller's bank subsidiary ("Seller's Bank'") with and into
Company's lead bank ("Company Lead Bank") (the "Bank Merger");
NOW, THEREFORE, in consideration of the foregoing premises and the
representations, warranties and agreements contained herein, and subject to the
terms and conditions set forth herein, the parties hereto hereby agree as
follows:
ARTICLE I - THE MERGER
SECTION 1.1 The Merger. Upon the terms and subject to the conditions set
forth in this Agreement, and in accordance with the WBCL, at the Effective Time
(as defined in Section 1.2) Seller shall be merged with and into the Company.
As a result of the Merger, the separate corporate existence of Seller shall
cease and the Company shall continue as the surviving corporation of the Merger
(the "Surviving Corporation").
SECTION 1.2 Effective Time. As promptly as practicable after the
satisfaction or, if permissible, waiver of the conditions set forth in Article
VII, but in no event prior to the earlier of (i) as soon as practicable
following the completion of the conversion of Seller's bank offices to the
Company's data processing systems, including any and all testing related to such
conversion (the "Data Processing Conversion"), or (ii) October 1, 1997, the
parties hereto shall cause the Merger to be consummated by filing articles of
merger (the "Articles of Merger") with the Department of Financial Institutions
of the State of Wisconsin, in such form as required by,
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and executed in accordance with the relevant provisions of, the WBCL (the date
and time of such filing is referred to herein as the "Effective Time").
SECTION 1.3 Effect of the Merger. At the Effective Time, the effect of the
Merger shall be as provided in this Agreement and the applicable provisions of
the WBCL. Without limiting the generality of the foregoing, and subject
thereto, at the Effective Time, except as otherwise provided herein, all the
property, rights, privileges, powers and franchises of the Company and the
Seller shall vest in the Surviving Corporation, and all debts, liabilities and
duties of the Company and the Seller shall become the debts, liabilities and
duties of the Surviving Corporation.
SECTION 1.4 Articles of Incorporation; By-Laws. At the Effective Time, the
Articles of Incorporation (the "Company Articles") and the By-Laws ("Company By-
Laws") of the Company, as in effect immediately prior to the Effective Time,
shall be the Articles of Incorporation and the By-Laws of the Surviving
Corporation.
SECTION 1.5 Directors and Officers. At the Effective Time, the directors of
the Company immediately prior to the Effective Time shall be the initial
directors of the Surviving Corporation, each to hold office in accordance with
the Articles of Incorporation and By-Laws of the Surviving Corporation. At the
Effective Time, the officers of the Company immediately prior to the Effective
Time shall be the initial officers of the Surviving Corporation, in each case
until their respective successors are duly elected or appointed.
SECTION 1.6 Conversion of Securities. At the Effective Time, by virtue of
the Merger and without any action on the part of Company, Seller or the holder
of the following securities:
(a) Each share of the common stock, par value $1.00 per share of Seller
("Seller Common Stock"), issued and outstanding immediately prior to the
Effective Time (including shares held by the Company or any Company
Subsidiary) shall cease to be outstanding and shall be converted into and
become the right to receive, at the election of the holder thereof as provided
in Section 1.7, either:
(A) that number of shares of common stock par value $1.00 per share
of Company ("Company Common Stock") which is equal to the Per Share Stock
Consideration, or
(B) cash in an amount equal to the Average Per Share Consideration
provided that, the aggregate number of shares of Company Common Stock that
shall be issued in the Merger shall be equal to or nearly equal to 12,327,390
(the "Stock Amount").
(b) Each share of Seller Common Stock held as treasury stock shall be
canceled.
(c) For purposes of this Agreement the following definitions shall
apply:
2
"Average Per Share Consideration" shall mean the Aggregate Consideration
divided by the Valuation Period Share Number (rounded to the nearest cent).
"Aggregate Consideration" shall mean the sum of (x) the product of the
Stock Amount and Valuation Period Market Value and (y) $376,335,605.
"Cash Percentage" shall mean $376,335,605 divided by the Aggregate
Consideration.
"Per Share Stock Consideration" shall equal the Average Per Share
Consideration divided by the Valuation Period Market Value.
"Stock Percentage" shall mean (x) the product of the Stock Amount and the
Valuation Period Market Value, divided by (y) the Aggregate Consideration.
"Valuation Period Share Number" shall mean the total number of shares of
Seller Common Stock issued and outstanding (excluding treasury shares or
restricted shares under employee benefit plans which have not been awarded) on
the last day of the Valuation Period.
"Valuation Period Market Value" shall mean the average of the average
final bid and asked quotations for the Company Common Stock as reported on the
National Association of Securities Dealers Automated Quotation/National Market
System ("NASDAQ/NMS") (as reported in The Wall Street Journal, Midwest
edition, or, in the absence thereof, by another authoritative source) during
the Valuation Period.
"Valuation Period" shall mean the ten (10) consecutive trading-day period
during which the shares of Company Common Stock are traded on the Nasdaq Stock
Market National Market System ("NASDAQ") ending on the fifth calendar day
immediately prior to the Effective Time.
SECTION 1.7. Election Procedures. Election forms and other appropriate and
customary transmittal materials (which shall specify that delivery shall be
effected, and risk of loss and title to the certificates theretofore
representing Seller Common Stock ("Certificates") shall pass, only upon proper
delivery of such Certificates to a bank or trust company designated by Company
and reasonably satisfactory to Seller (the "Exchange Agent")) in such form as
Company and Seller shall mutually agree ("Election Forms") shall be mailed 30
days prior to the anticipated Effective Time or on such other earlier date as
Seller and Company shall mutually agree ("Mailing Date") to each holder of
record of Seller Common Stock as of five business days prior to the Mailing Date
("Election Form Record Date").
Each Election Form shall permit the holder (or the beneficial owner through
appropriate and customary documentation and instructions) either (i) to elect to
receive only Company Common Stock with respect to such holder's Seller Common
Stock ("Stock Election Shares");
3
(ii) to elect to receive only cash with respect to such holder's Seller Common
Stock ("Cash Election Shares"); (iii) to elect to receive Company Common Stock
and cash in the proportion described in subparagraph (a) below with respect to
such holder's Seller Common Stock ("Mixed Election Shares"); or (iv) to indicate
that such holder makes no election ("No Election Shares").
Any Seller Common Stock with respect to which the holder (or the beneficial
owner, as the case may be) shall not have submitted to the Exchange Agent an
effective, properly completed Election Form on or before 5:00 p.m., New York
City time, on the 25th day following the Mailing Date (or such other time and
date as Company and Seller may mutually agree) (the "Election Deadline") shall
also be deemed to be "No Election Shares."
Company shall make available up to two separate Election Forms, or such
additional Election Forms as the Company in its sole discretion may permit, to
all persons who become holders (or beneficial owners) of Seller Common Stock
between the Election Form Record Date and close of business on the business day
prior to the Election Deadline, and Seller shall provide to the Exchange Agent
all information reasonably necessary for it to perform as specified herein.
Any such election shall have been properly made only if the Exchange Agent
shall have actually received a properly completed Election Form by the Election
Deadline. An Election Form shall be deemed properly completed only if
accompanied by one or more Certificates (or customary affidavits and
indemnification regarding the loss or destruction of such Certificates or the
guaranteed delivery of such Certificates) representing all shares of Seller
Common Stock covered by such Election Form, together with duly executed
transmittal materials included in the Election Form. Any Election Form may be
revoked or changed by the person submitting such Election Form at or prior to
the Election Deadline. In the event an Election Form is revoked prior to the
Election Deadline, the shares of Seller Common Stock represented by such
Election Form shall become No Election Shares and Company shall cause the
Certificates to be promptly returned without charge to the person submitting the
Election Form upon written request to that effect from the person who submitted
the Election Form. Subject to the terms of this Agreement and of the Election
Form, the Exchange Agent shall have reasonable discretion to determine whether
any election, revocation or change has been properly or timely made and to
disregard immaterial defects in the Election Forms, and any good faith decisions
of the Exchange Agent regarding such matters shall be binding and conclusive.
Neither Company nor the Exchange Agent shall be under any obligation to notify
any person of any defect in an Election Form.
Within five business days after the Election Deadline, unless the Effective
Time has not yet occurred, in which case as soon thereafter as practicable,
Company shall cause the Exchange Agent to effect the allocation among the
holders of Seller Common Stock of rights to receive Company Common Stock or cash
in the Merger in accordance with the Election Forms as follows:
(a) Mixed Elections. Each of the Mixed Election Shares shall be
converted into a right to receive a number of shares of Company Common Stock
equal to the Per Share Stock Consideration multiplied by the Stock Percentage
and cash equal to the Average Per Share Consideration multiplied by the Cash
Percentage.
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(b) Stock Elections And Mixed Elections Less Than Stock Amount. If the
number of shares of Company Common Stock that would be issued upon conversion
in the Merger of the Stock Election Shares and the Mixed Election Shares is
less than the Stock Amount, then:
(i) each of the Stock Election Shares shall be converted into the
right to receive a number of shares of Company Common Stock equal to the
Per Share Stock Consideration,
(ii) the Exchange Agent shall then select first from among the No
Election Shares and then (if necessary) from among the Cash Election
Shares, by a pro rata selection process, a sufficient number of shares
("Stock Designated Shares") such that the number of shares of Company
Common Stock that will be issued in the Merger equals as closely as
practicable the Stock Amount, and each of the Stock Designated Shares
shall be converted into the right to receive a number of shares of
Company Common Stock equal to the Per Share Stock Consideration, and
(iii) each of the Cash Election Shares and the No Election Shares
which are not Stock Designated Shares shall be converted into the right
to receive cash equal to the Average Per Share Consideration.
(c) Stock Elections and Mixed Elections More Than Stock Amount. If the
number of shares of Company Common Stock that would be issued upon the
conversion in the Merger of the Stock Election Shares and the Mixed Election
Shares is greater than the Stock Amount, then:
(i) each of the Cash Election Shares and No Election Shares shall
be converted into the right to receive cash equal to the Average Per
Share Consideration,
(ii) the Exchange Agent shall then select from among the Stock
Election Shares, by a pro rata selection process a sufficient number of
shares ("Cash Designated Shares") such that the number of shares of
Company Common Stock that will be issued in the Merger equals as closely
as practicable the Stock Amount, and each of the Cash Designated Shares
shall be converted into the right to receive cash equal to the Average
Per Share Consideration, and
(iii) each of the Stock Election Shares which are not Cash
Designated Shares shall be converted into the right to receive a number
of shares of Company Common Stock equal to the Per Share Stock
Consideration.
The pro rata selection process to be used by the Exchange Agent shall consist
of such equitable pro ration processes as shall be mutually determined by
Company and Seller.
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SECTION 1.8. Adjustments for Dilution and Other Matters. If prior to the
Effective Time, (i) Seller shall declare a stock dividend or distribution upon
or subdivide, split up, reclassify or combine the Seller Common Stock, or
declare a dividend or make a distribution on the Seller Common Stock in any
security convertible into Seller Common Stock, or (ii) Company shall declare a
stock dividend or distribution upon or subdivide, split up, reclassify or
combine the Company Common Stock or declare a dividend or make a distribution on
the Company Common Stock in any security convertible into Company Common Stock,
appropriate adjustment or adjustments will be made to the Per Share Cash
Consideration, the Per Share Stock Consideration and the Stock Amount.
SECTION 1.9 Exchange of Certificates.
(a) Exchange Agent. As of the Effective Time, the Company shall
deposit, or shall cause to be deposited with the Exchange Agent, for the
benefit of the holders of Shares, for exchange in accordance with this Article
I, through the Exchange Agent, the amount of cash payable in the Merger and
certificates representing the shares of Company Common Stock (such
certificates for shares of Company Common Stock, together with the amount of
cash payable in the Merger and any dividends or distributions with respect to
such Company Common Stock are referred to herein as the "Exchange Fund")
payable and issuable pursuant to Section 1.6 in exchange for outstanding
Shares.
(b) Exchange Procedures. As soon as reasonably practicable after the
Effective Time, the Exchange Agent shall mail to each holder of record of a
Certificate or Certificates which immediately prior to the Effective Time
represented outstanding Shares whose Shares were converted into the right to
receive shares of Company Common Stock or cash or both pursuant to Section
1.6, (i) a letter of transmittal (which shall specify that delivery shall be
effected, and risk of loss and title to the Certificates shall pass, only upon
delivery of the Certificates to the Exchange Agent and shall be in such form
and have such other provisions as the Company may reasonably specify) and (ii)
instructions for use in effecting the surrender of the Certificates in
exchange for certificates representing shares of Company Common Stock or cash
or both. Upon surrender of a Certificate for cancellation to the Exchange
Agent together with such letter of transmittal, duly executed, the holder of
such Certificate shall be entitled to receive in exchange therefor a
certificate representing that number of whole shares of Company Common Stock
or cash or both which such holder has the right to receive in respect of the
Certificate surrendered pursuant to the provisions of this Article I (after
taking into account all Shares then held by such holder), and the Certificate
so surrendered shall forthwith be canceled. In the event of a transfer of
ownership of Shares which is not registered in the transfer records of the
Seller, a certificate representing the proper number of shares of Company
Common Stock or cash or both may be issued to a transferee if the Certificate
representing such Shares is presented to the Exchange Agent, accompanied by
all documents required to evidence and effect such transfer and by evidence
that any applicable stock transfer taxes have been paid. In the event any
Certificate shall have been lost, stolen or destroyed, upon the making of an
affidavit of that fact by the person
6
claiming such Certificate to be lost, stolen or destroyed and the posting by
such person of a bond in such amount as the Company may direct as indemnity
against any claim that may be made against it or the Exchange Agent with
respect to such Certificate, the Exchange Agent will issue in exchange for
such lost, stolen or destroyed Certificate a certificate representing the
proper number of shares of Company Common Stock or cash or both. Until
surrendered as contemplated by this Section 1.9, each Certificate shall be
deemed at any time after the Effective Time to represent only the right to
receive upon such surrender the certificate representing shares of Company
Common Stock and cash in lieu of any fractional shares of Company Common Stock
as contemplated by Section 1.9(e) or cash or both.
(c) Distributions with Respect to Unexchanged Shares. No dividends or
other distributions declared or made after the Effective Time with respect to
Company Common Stock with a record date after the Effective Time shall be paid
to the holder of any unsurrendered Certificate with respect to the shares of
Company Common Stock represented thereby, and no cash payment in lieu of
fractional shares shall be paid to any such holder pursuant to Section 1.9(e),
until the holder of such Certificate shall surrender such Certificate.
Subject to the effect of applicable laws, following surrender of any such
Certificate, there shall be paid to the holder of the certificates
representing whole shares of Company Common Stock issued in exchange therefor,
without interest, (i) promptly, the amount of any cash payable with respect to
a fractional share of Company Common Stock to which such holder is entitled
pursuant to Section 1.9(e) and the amount of dividends or other distributions
with a record date after the Effective Time theretofore paid with respect to
such whole shares of Company Common Stock, and (ii) at the appropriate payment
date, the amount of dividends or other distributions, with a record date after
the Effective Time but prior to surrender and a payment date occurring after
surrender, payable with respect to such whole shares of Company Common Stock.
(d) No Further Rights in the Shares. All shares of Company Common Stock
issued and cash paid upon conversion of the Shares in accordance with the
terms hereof (including any cash paid pursuant to Section 1.9(e)) shall be
deemed to have been issued in full satisfaction of all rights pertaining to
such Shares.
(e) No Fractional Shares. No certificates or scrip representing
fractional shares of Company Common Stock shall be issued upon the surrender
for exchange of Certificates, and such fractional share interest will not
entitle the owner thereof to vote or to any rights of a shareholder of the
Company. Each holder of a fractional share interest shall be paid an amount
in cash equal to the product obtained by multiplying such fractional share
interest to which such holder (after taking into account all fractional share
interests then held by such holder) would otherwise be entitled by the average
of the final bid and asked price for a share of Company Common Stock as quoted
by the NASDAQ/NMS on the five business days immediately preceding the
Effective Time. As soon as reasonably practicable after the determination of
the amount of cash, if any, to be paid to holders of fractional share
interests, the Company shall make available such amounts (without interest) to
such holders of such fractional share interests.
7
(f) Termination of Exchange Fund. Any portion of the Exchange Fund
which remains undistributed to the former shareholders of Seller for six
months after the Effective Time shall be delivered to the Company, upon
demand, and any former shareholders of Seller who have not theretofore
complied with this Article I shall thereafter look only to the Company to
claim their cash merger consideration, shares of Company Common Stock, any
cash in lieu of fractional shares of Company Common Stock and any dividends or
distributions with respect to Company Common Stock, in each case without
interest thereon, and subject to Section 1.9(g).
(g) No Liability. Neither the Company nor the Seller shall be liable to
any former holder of Shares for any such Shares (or dividends or distributions
with respect thereto) or cash or other payment delivered to a public official
pursuant to any abandoned property, escheat or similar laws.
(h) Withholding Rights. The Company shall be entitled to deduct and
withhold from the consideration otherwise payable pursuant to this Agreement
to any former holder of Shares such amounts as the Company is required to
deduct and withhold with respect to the making of such payment under the Code,
or any provision of state, local or foreign tax law. To the extent that
amounts are so withheld by the Company, such withheld amounts shall be treated
for all purposes of this Agreement as having been paid to the former holder of
the Shares in respect of which such deduction and withholding was made by the
Company.
SECTION 1.10 Stock Transfer Books. At the Effective Time, the stock transfer
books of Seller shall be closed and there shall be no further registration of
transfers of shares of Seller Common Stock thereafter on the records of Seller.
From and after the Effective Time, the holders of certificates evidencing
ownership of shares of Seller Common Stock outstanding immediately prior to the
Effective Time shall cease to have any rights with respect to such Shares except
as otherwise provided herein or by law. On or after the Effective Time, any
Certificates presented to the Exchange Agent or the Company for any reason shall
be converted into cash, shares of Company Common Stock or both in accordance
with this Article I.
SECTION 1.11 Company Common Stock. The shares of Company Common Stock issued
and outstanding immediately prior to the Effective Time shall be unaffected by
the Merger and at the Effective Time, such shares shall remain issued and
outstanding.
ARTICLE II - REPRESENTATIONS AND WARRANTIES OF SELLER
Except as set forth in the Disclosure Schedule delivered by Seller to the
Company prior to the execution of this Agreement (the "Seller Disclosure
Schedule"), Seller hereby represents and warrants to the Company that:
8
SECTION 2.1 Organization and Qualification; Subsidiaries.
(a) Seller is a company duly organized, validly existing and in good
standing under the laws of the State of Wisconsin, and is a registered unitary
bank holding company under the Bank Holding Company Act of 1956, as amended
(the "BHCA"). Each subsidiary of Seller ("Seller Subsidiary" or,
collectively, "Seller Subsidiaries") is a bank or a corporation duly
organized, validly existing and in good standing under the laws of the state
of its incorporation. Each of Seller and the Seller Subsidiaries has the
requisite corporate power and authority and is in possession of all
franchises, grants, authorizations, licenses, permits, easements, consents,
certificates, approvals and orders ("Seller Approvals") necessary to own,
lease and operate its properties and to carry on its business as it is now
being conducted, including appropriate authorizations from the Federal Reserve
Board, the Federal Deposit Insurance Corporation (the "FDIC") and the
Wisconsin Department of Financial Institutions ("DFI") Division of Savings
Institutions ("Division of Savings Institutions") and neither Seller nor any
Seller Subsidiary has received any notice of proceedings relating to the
revocation or modification of any Seller Approvals, except in each case where
the failure to be so organized, existing and in good standing or to have such
power, authority, Seller Approvals and revocations or modifications would not,
individually or in the aggregate, have a Material Adverse Effect (as defined
below) on Seller and Seller Subsidiaries, taken as a whole.
(b) Seller and each Seller Subsidiary is duly qualified or licensed as a
foreign corporation to do business, and is in good standing, in each
jurisdiction where the character of its properties owned, leased or operated
by it or the nature of its activities makes such qualification or licensing
necessary, except where such failures to be so duly qualified or licensed and
in good standing that would not, either individually or in the aggregate, have
a Material Adverse Effect on Seller and Seller Subsidiaries, taken as a whole.
(c) A true and complete list of all of the Seller Subsidiaries, together
with (i) the Seller's percentage ownership of each Seller Subsidiary and (ii)
laws under which the Seller Subsidiary is incorporated, is set forth on Annex
A. Except as set forth on Annex A, Seller and/or one or more of the Seller
Subsidiaries owns beneficially and of record all of the outstanding shares of
capital stock of each of the Seller Subsidiaries. Except for the subsidiaries
set forth on Annex A, Seller does not directly or indirectly own any equity or
similar interests in, or any interests convertible into or exchangeable or
exercisable for any equity or similar interest in, any corporation,
partnership, joint venture or other business association or entity other than
in the ordinary course of business, and in no event in excess of 5% of the
outstanding equity securities of such entity.
(d) As used in this Agreement, the term "Material Adverse Effect" means,
with respect to the Company or the Seller, as the case may be, any effect that
(i) is material and adverse to the business, assets, liabilities, results of
operations or financial condition of the Company and the Company Subsidiaries
taken as whole or the Seller and Seller
9
Subsidiaries taken as a whole, respectively, or (ii) materially impairs the
ability of the Company or Seller to consummate the transactions contemplated
hereby; provided, however, that Material Adverse Effect shall not be deemed to
include the impact of (a) actions contemplated by this Agreement, (b) changes
in laws and regulations or interpretations thereof that are generally
applicable to the banking or savings industries, (c) changes in generally
accepted accounting principles that are generally applicable to the banking or
savings industries, (d) reasonable expenses incurred in connection with the
transactions contemplated hereby, (e) changes attributable to or resulting
from changes in general economic conditions affecting banks or their holding
companies generally, including changes in the prevailing level of interest
rates, and (f) any changes (financial or otherwise) attributable to the Data
Processing Conversion.
(e) The minute books of the Seller and each of the Seller Subsidiaries
contain true, complete and accurate records in all material respects of all
meetings and other corporate actions held or taken since December 31, 1993 of
their respective stockholders and Boards of Directors (including committees of
their respective Boards of Directors).
SECTION 2.2 Articles of Incorporation and By-Laws. Seller has heretofore
furnished to the Company a complete and correct copy of the Articles of
Incorporation and the By-Laws, as amended or restated, of Seller ("Seller
Articles" or "Seller By-Laws") and each Seller Subsidiary. Such Articles of
Incorporation and By-Laws of Seller and each Seller Subsidiary are in full force
and effect. Neither Seller nor any Seller Subsidiary is in violation of any of
the provisions of its Articles of Incorporation or By-Laws.
SECTION 2.3 Capitalization. The authorized capital stock of Seller consists
of 50,000,000 shares of Seller Common Stock and 10,000,000 shares of preferred
stock, par value $1.00 per share ("Seller Preferred Stock"). As of the date of
this Agreement, (i) 9,202,932 shares of Seller Common Stock are issued and
outstanding (of which 112,700 are restricted shares under employee benefit plans
which have not and will not be awarded), all of which are duly authorized,
validly issued, fully paid and non-assessable, except as provided by Section
180.0622(2)(b) of the WBCL, and not issued in violation of any preemptive right
of any Seller shareholder, (ii) 1,607,068 shares of Seller Common Stock are held
in the treasury of Seller, and (iii) 1,182,433 shares of Seller Common Stock are
reserved for future issuance pursuant to outstanding employee stock options
issued pursuant to Seller's stock option plans. As of the date of this
Agreement, no shares of Seller Preferred Stock are issued and outstanding.
Except as set forth in clause (iii), above, there are no options, warrants or
other rights, agreements, arrangements or commitments of any character,
including without limitation voting agreements or arrangements, relating to the
issued or unissued capital stock of Seller or any Seller Subsidiary or
obligating Seller or any Seller Subsidiary to issue or sell any shares of
capital stock of, or other equity interests in, Seller or any Seller Subsidiary.
All shares of Seller Common Stock subject to issuance as aforesaid, upon
issuance on the terms and conditions specified in the instruments pursuant to
which they are issuable, shall be duly authorized, validly issued, fully paid
and non-assessable, except as otherwise provided by Section 180.0622(2)(b) of
the WBCL (such section, including judicial interpretations thereof and of
Section 180.40(6), its predecessor statute, are referred to herein as "Section
180.0622(2)(b) of the WBCL"). There are no
10
obligations, contingent or otherwise, of Seller or any Seller Subsidiary to
repurchase, redeem or otherwise acquire any shares of Seller Common Stock or the
capital stock of any Seller Subsidiary or to provide funds to or make any
investment (in the form of a loan, capital contribution or otherwise) in any
Seller Subsidiary or any other entity, except for loan commitments and other
funding obligations entered into in the ordinary course of business. Each of the
outstanding shares of capital stock of each Seller Subsidiary are duly
authorized, validly issued, fully paid and non-assessable, except as provided by
Section 180.0622(2)(b) of the WBCL and, in the case of Wisconsin state banks,
Section 214.775 of the Wisconsin Statutes, and not in violation of any
preemptive rights of any Seller Subsidiary shareholder, and such shares owned by
Seller or another Seller Subsidiary are owned free and clear of all security
interests, liens, claims, pledges, agreements, limitations of Seller's voting
rights, charges or other encumbrances of any nature whatsoever.
SECTION 2.4 Authority. Seller has the requisite corporate power and
authority to execute and deliver this Agreement to perform its obligations
hereunder and to consummate the transactions contemplated hereby and thereby
(other than, with respect to the Merger, the approval and adoption of this
Agreement by Seller's shareholders in accordance with the WBCL and the Seller
Articles and Seller By-Laws). The execution and delivery of this Agreement by
Seller and the consummation by Seller of the transactions contemplated hereby
have been duly and validly authorized by all necessary corporate action,
including without limitation Seller's Board of Directors, and no other corporate
proceedings on the part of Seller are necessary to authorize this Agreement or
to consummate the transactions so contemplated hereby (other than, with respect
to the Merger, the approval and adoption of this Agreement by Seller's
shareholders in accordance with the WBCL and the Seller Articles and Seller By-
Laws). The action of Seller's Board of Directors has been taken in compliance
with Article IV(c)(6) of the Seller Articles. This Agreement has been duly
executed and delivered by, and constitutes a valid and binding obligation of
Seller and assuming due authorization, execution and delivery by Company,
enforceable against Seller in accordance with its terms, except as enforcement
may be limited by laws affecting insured depository institutions, general
principles of equity whether applied in a court of law or a court of equity and
by bankruptcy, insolvency and similar laws affecting creditors' rights and
remedies generally.
SECTION 2.5 No Conflict; Required Filings and Consents.
(a) The execution and delivery of this Agreement by Seller does not, and
the performance of this Agreement and the transactions contemplated hereby by
Seller shall not, (i) conflict with or violate the Seller Articles or Seller
By-Laws or the Articles of Incorporation or By-Laws of any Seller Subsidiary,
(ii) conflict with or violate any domestic (federal, state or local) or
foreign law, statute, ordinance, rule, regulation, order, judgment or decree
(collectively, "Laws") applicable to Seller or any Seller Subsidiary or by
which its or any of their respective properties is bound or affected, or (iii)
result in any breach of or constitute a default (or an event that with notice
or lapse of time or both would become a default) under, or give to others any
rights of termination, amendment, acceleration or cancellation of, or result
in the creation of a lien or encumbrance on any of the properties or assets of
Seller or any Seller Subsidiary pursuant to, any note, bond,
11
mortgage, indenture, contract, agreement, lease, license, permit, franchise or
other instrument or obligation to which Seller or any Seller Subsidiary is a
party or by which Seller or any Seller Subsidiary or its or any of their
respective properties is bound or affected, except in the case of clauses (ii)
and (iii) for any such conflicts, violations, breaches, defaults or other
occurrences that would not, individually or in the aggregate, have a Material
Adverse Effect on Seller and the Seller Subsidiaries, taken as a whole. The
Board of Directors of Seller has taken all actions necessary including
approving the transactions contemplated herein to ensure that none of the
restrictions set forth in Sections 180.1130-32, 180.1134, 180.1140-44 and
180.1150 of the WBCL do or will apply to the transactions contemplated herein.
(b) The execution and delivery of this Agreement by Seller does not, and
the performance of this Agreement by Seller shall not, require any consent,
approval, authorization or permit of, or filing with or notification to, any
governmental or regulatory authority, domestic or foreign, except (i) for
applicable requirements, if any, of the Securities Act of 1933, as amended
(the "Securities Act"), the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), state securities or blue sky laws ("Blue Sky Laws"), the
BHCA, the banking laws of the State of Wisconsin (the "WBL") and the filing
and recordation of appropriate merger or other documents as required by the
WBCL where the failure to obtain such consents, approvals, authorizations or
permits, or to make such filings or notifications, would not prevent Seller
from performing its obligations under this Agreement, and would not have a
Material Adverse Effect on Seller and Seller Subsidiaries, taken as a whole.
SECTION 2.6 Compliance; Permits. Neither Seller nor any Seller Subsidiary is
in conflict with, or in default or violation of, (i) any Law applicable to
Seller or any Seller Subsidiary or by which its or any of their respective
properties is bound or affected, or (ii) any note, bond, mortgage, indenture,
contract, agreement, lease, license, permit, franchise or other instrument or
obligation to which Seller or any Seller Subsidiary is a party or by which
Seller or any Seller Subsidiary or its or any of their respective properties is
bound or affected, except for any such conflicts, defaults or violations which
would not, individually or in the aggregate, have a Material Adverse Effect on
Seller or Seller Subsidiaries, taken as a whole.
SECTION 2.7 Securities and Banking Reports; Financial Statements.
(a) Seller and each Seller Subsidiary have filed all forms, reports and
documents required to be filed with (x) the Securities and Exchange Commission
(the "SEC") since June 30, 1996, and as of the date of this Agreement has
delivered to the Company (i) its Annual Reports on Form 10-K for the fiscal
years ended June 30, 1994, 1995 and 1996, respectively, (ii) its Quarterly
Reports on Form 10-Q for the periods ended September 30, 1996 and December 31,
1996, (iii) all proxy statements relating to Seller's meetings of shareholders
(whether annual or special) held since June 30, 1994, (iv) all Reports on Form
8-K filed by Seller with the SEC since June 30, 1994, (v) all other reports or
registration statements (other than Reports on Form 10-Q not referred to in
clause (ii) above, since June 30, 1994) and (vi) all amendments and
supplements to all such reports
12
and registration statements filed by Seller with the SEC since June 30, 1994
(collectively, the "Seller SEC Reports") and (y) the DFI and any other
applicable federal or state securities or banking authorities (all such
reports and statements are collectively referred to with the Seller SEC
Reports as the "Seller Reports"). The Seller Reports, including all Seller
Reports filed after the date of this Agreement, (i) were or will be prepared
in all material respects in accordance with the requirements of applicable Law
and (ii) did not at the time they were filed, or will not at the time they are
filed, contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(b) Each of the consolidated financial statements (including, in each
case, any related notes thereto) contained in the Seller SEC Reports,
including any Seller SEC Reports filed since the date of this Agreement and
prior to or on the Effective Time, have been prepared in accordance with
generally accepted accounting principles applied on a consistent basis
throughout the periods involved (except as may be indicated in the notes
thereto) and each fairly presents the consolidated financial position of
Seller and Seller Subsidiaries as of the respective dates thereof and the
consolidated results of its operations and changes in financial position for
the periods indicated, except that any unaudited interim financial statements
were or are subject to normal and recurring year-end adjustments which were
not or are not expected to be material in amount.
(c) Except (i) for those liabilities that are fully reflected or
reserved against on the consolidated statement of condition of the Seller
included in the Seller's Form 10-Q for the quarter ended December 31, 1996,
(ii) for liabilities incurred in the ordinary course of business consistent
with past practice since December 31, 1996, and (iii) as set forth in Section
2.7 of the Seller Disclosure Schedule, neither Seller nor any Seller
Subsidiary has incurred any liability of any nature whatsoever (whether
absolute, accrued, contingent or otherwise due or to become due), that, either
alone or when combined with all similar liabilities, has had, or would
reasonably be expected to have, a Material Adverse Effect on the Seller and
the Seller Subsidiaries, taken as a whole.
SECTION 2.8 Absence of Certain Changes or Events. Except as disclosed in the
Seller SEC Reports filed prior to the date of this Agreement or set forth in
Section 2.8 of the Seller Disclosure Schedule, since December 31, 1996 to the
date of this Agreement, Seller and the Seller Subsidiaries have conducted their
businesses only in the ordinary course and in a manner consistent with past
practice and, since December 31, 1996, there has not been (i) any change in the
financial condition, results of operations or business of Seller and any of the
Seller Subsidiaries having a Material Adverse Effect on Seller or the Seller
Subsidiaries, taken as a whole, (ii) any damage, destruction or loss (whether or
not covered by insurance) with respect to any assets of Seller or any of the
Seller Subsidiaries having a Material Adverse Effect on Seller and the Seller
Subsidiaries, taken as a whole, (iii) any change by Seller in its accounting
methods, principles or practices, (iv) any revaluation by Seller of any of its
assets in any material respect, (v) except for regular quarterly cash dividends
on Seller Common Stock with usual record and payment dates, to the date of this
Agreement, any declaration, setting aside or
13
payment of any dividends or distributions in respect of shares of Seller Common
Stock or any redemption, purchase or other acquisition of any of its securities
or any of the securities of any Seller Subsidiary, (vi) increased the wages,
salaries, compensation, pension, or other fringe benefits or perquisites payable
to any executive officer, employee, or director from the amount thereof in
effect as of December 31, 1996 (which amounts have been previously disclosed to
Company), granted any severance or termination pay, entered into any contract to
make or grant any severance or termination pay, or paid any bonus other than
year-end bonuses for fiscal 1996 as listed in Section 2.8 of the Seller
Disclosure Schedule, (vii) suffered any strike, work stoppage, slow-down or
other labor disturbance, (viii) been a party to a collective bargaining
agreement, contract or other agreement or understanding with a labor union or
organization, or (ix) had any union organizing activities.
SECTION 2.9 Absence of Litigation. (a) Except as set forth in Section 2.9 of
the Seller Disclosure Schedule, neither the Seller nor any of the Seller
Subsidiaries is a party to any, and there are no pending or, to the best of the
Seller's knowledge, threatened, legal, administrative, arbitral or other
proceedings, claims, actions or governmental or regulatory investigations of any
nature against the Seller or any of the Seller Subsidiaries or challenging the
validity or propriety of the transactions contemplated by this Agreement as to
which there is reasonable probability of an adverse determination and which, if
adversely determined, would, individually or in the aggregate, have a Material
Adverse Effect on the Seller and the Seller Subsidiaries, taken as a whole.
(b) There is no injunction, order, judgment, decree or regulatory restriction
imposed upon the Company, any of the Seller Subsidiaries or the assets of the
Seller or any of the Seller Subsidiaries which has had a Material Adverse Effect
on the Seller and the Seller Subsidiaries, taken as a whole.
(c) The matter Xxxxx, et. al. v. Security Capital Corporation has been
dismissed with prejudice and, as of March 19, 1996, all amounts due pursuant to
the settlement agreement relating thereto have been paid and expensed or fully
accrued for in the Seller's Financial Statements.
SECTION 2.10 Employee Benefit Plans.
(a) Section 2.10(a) of the Seller Disclosure Schedule lists (i) all
employee benefit plans (as defined in Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA")), and all bonus, stock
option, stock purchase, restricted stock, incentive, deferred compensation,
retiree medical or life insurance, supplemental retirement, severance or other
benefit plans, programs or arrangements, and all material employment,
termination, severance or other employment contracts or employment agreements,
with respect to which Seller or any Seller Subsidiary has any obligation
(collectively, the "Plans"). Seller has furnished or made available to the
Company a complete and accurate copy of each Plan (or a description of the
Plans, if the Plans are not in writing) and a complete and accurate copy of
each material document prepared in connection with each such Plan, including,
without limitation, and where applicable, a
14
copy of (i) each trust or other funding arrangement, (ii) each summary plan
description and summary of material modifications, (iii) the three (3) most
recently filed IRS Forms 5500 and related schedules, (iv) the most recently
issued IRS determination letter for each such Plan and (v) the three (3) most
recently prepared actuarial and financial statements in connection with each
such Plan.
(b) Absence of Certain Types of Plans. Except as disclosed in the
Seller Disclosure Schedule, no member of Seller's "controlled group," within
the meaning of Section 4001(a)(14) of ERISA, maintains or contributes to, or
within the five years preceding the Effective Time has maintained or
contributed to, an employee pension benefit plan subject to Title IV of ERISA
("Title IV Plan"). No Title IV Plan is a "multiemployer pension plan" as
defined in Section 3(37) of ERISA. Except as disclosed in the Seller
Disclosure Schedule, none of the Plans obligates Seller or any of the Seller
Subsidiaries to pay material separation, severance, termination or similar-
type benefits solely as a result of any transaction contemplated by this
Agreement or as a result of a "change in control," within the meaning of such
term under Section 280G of the Code. Except as disclosed in the Seller
Disclosure Schedule, or as required by COBRA, none of the Plans provides for
or promises retiree medical, disability or life insurance benefits to any
current or former employee, officer or director or life insurance benefits to
any current or former employee, officer or director of Seller or any of the
Seller Subsidiaries. Each of the Plans is subject only to the laws of the
United States or a political subdivision thereof.
(c) Compliance with Applicable Law. Except as disclosed in the Seller
Disclosure Schedule, each Plan has been operated in all respects in accordance
with the requirements of all applicable Law and all persons who participate in
the operation of such Plans and all Plan "fiduciaries" (within the meaning of
Section 3(21) of ERISA) have acted in accordance with the provisions of all
applicable Law, except where such violations of applicable Law would not,
individually or in the aggregate, have a Material Adverse Effect on Seller and
the Seller Subsidiaries, taken as a whole. Seller and the Seller Subsidiaries
have performed all obligations required to be performed by any of them under,
are not in any respect in default under or in violation of, and Seller and the
Seller Subsidiaries have no knowledge of any default or violation by any party
to, any Plan, except where such failures, defaults or violations would not,
individually or in the aggregate, have a Material Adverse Effect on Seller and
the Seller Subsidiaries, taken as a whole. No legal action, suit or claim is
pending or, to the knowledge of Seller or the Seller Subsidiaries, threatened
with respect to any Plan (other than claims for benefits in the ordinary
course) and, except as disclosed in the Seller Disclosure Schedule, to the
knowledge of Seller or the Seller Subsidiaries, no fact or event exists that
could give rise to any such action, suit or claim. Except as disclosed in the
Seller Disclosure Schedule, neither Seller nor any Seller Subsidiary has
incurred any material liability to the Pension Benefit Guaranty Corporation
(other than for premiums which have been paid when due) or any material
liability under Section 302 of ERISA or Section 412 of the Code that has not
been satisfied in full and no condition exists that presents a material risk
of incurring any such liability.
15
(d) Qualification of Certain Plans. Each Plan that is intended to be
qualified under Section 401(a) of the Code or Section 401(k) of the Code
(including each trust established in connection with such a Plan that is
intended to be exempt from Federal income taxation under Section 501(a) of the
Code) has received a favorable determination letter from the IRS (as defined
herein) that it is so qualified, and, except as disclosed in the Seller
Disclosure Schedule Seller is not aware of any fact or event that has occurred
since the date of such determination letter from the IRS to adversely affect
the qualified status of any such Plan. Except as disclosed on the Seller
Disclosure Schedule, no trust maintained or contributed by the Seller or any
of the Seller Subsidiaries is intended to be qualified as a voluntary
employees' beneficiary association or is intended to be exempt from federal
income taxation under Section 501(c)(9) of the Code.
(e) Absence of Certain Liabilities and Events. Except for matters
disclosed in the Seller Disclosure Schedule, there has been no prohibited
transaction (within the meaning of Section 406 of ERISA or Section 4975 of the
Code) with respect to any Plan. Seller and each of the Seller Subsidiaries has
not incurred any liability for any excise tax arising under Section 4972 or
4980B of the Code that would individually or in the aggregate have a Material
Adverse Effect on the Seller and the Seller Subsidiaries, taken as a whole,
and, to the knowledge of Seller or the Seller Subsidiaries, no fact or event
exists that could give rise to any such liability.
(f) Plan Contributions. All contributions, premiums or payments required
to be made prior to the Effective Time with respect to any Plan have been made
on or before the Effective Time.
(g) Funded Status of Plans and Rights to Terminate. With respect to each
Title IV Plan, the present value of all accrued benefits under each such Plan,
based upon the actuarial assumptions used for funding purposes in the most
recent actuarial report prepared by each such Plan's actuary with respect to
each such Plan did not exceed, as of the most recent valuation date, the then
current value of assets of such Plan allocable to each accrued benefit. No
provision of any such Plan, nor any amendment thereto, would result in any
limitation on Seller or Seller's Subsidiaries rights, or Buyer's request, to
terminate each such Plan and to receive any residual amounts under Section
4044 of ERISA.
(h) Stock Options. Section 2.10(g) of the Seller Disclosure Schedule
sets forth a true and complete list of each current or former employee,
officer or director of Seller or any Seller Subsidiary who holds any option to
purchase Seller Common Stock as of the date of this Agreement, together with
the number of shares of Seller Common Stock subject to such option, the date
of grant of such option, the option price of such option, whether such option
is intended to qualify as an incentive stock option within the meaning of
Section 422(b) of the Code (an "ISO"), and the expiration date of such option.
Section 2.10(g) of the Seller Disclosure Schedule also sets forth the total
number of such ISOs and such non-qualified options.
16
(i) Employment Contracts. Except for employment, severance, consulting
or other similar contracts with any employees, consultants, officers or
directors of Seller or any of the Seller Subsidiaries disclosed in Section
2.10(i) of the Seller Disclosure Schedule, neither Seller nor any Seller
Subsidiary is a party to any such contracts. Neither Seller nor any Seller
Subsidiary is a party to any collective bargaining agreements.
(j) Effect of Agreement. Except as disclosed on the Seller Disclosure
Schedule, the consummation of the transactions contemplated by this Agreement
will not, either alone or in conjunction with another event, entitle any
current or former employee of Seller or any Seller Subsidiary to severance
pay, unemployment compensation or any other payment, except as expressly
provided herein, or accelerate the time of payment or vesting or increase the
compensation due any such employee or former employee, in each case, except as
expressly provided herein.
SECTION 2.11 Registration Statement; Proxy Statement/Prospectus. The
information supplied by Seller for inclusion in the Registration Statement (as
defined in Section 3.10) shall not at the time the Registration Statement is
declared effective contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading. The information supplied by Seller for inclusion in
the proxy statement/prospectus to be sent to the shareholders of Seller in
connection with the meeting of Seller's shareholders to consider the Merger (the
"Seller Shareholders' Meeting'") (such proxy statement/prospectus as amended or
supplemented is referred to herein as the "Proxy Statement/Prospectus") shall
not at the date the Proxy Statement/Prospectus (or any amendment thereof or
supplement thereto) is first mailed to shareholders, at the time of the Seller
Shareholders' Meeting and at the Effective Time, be false or misleading with
respect to any material fact required to be stated herein, or omit to state any
material fact required to be stated therein or necessary in order to make the
statements made therein, in the light of the circumstances under which they are
made, not misleading. If at any time prior to the Effective Time any event
relating to Seller or any of its affiliates, officers or directors should be
discovered by Seller which should be set forth in an amendment to the
Registration Statement or a supplement to the Proxy Statement/Prospectus, Seller
shall promptly inform the Company. The Proxy Statement/Prospectus shall comply
in all material respects as to form with the requirements of the Securities Act,
the Exchange Act and the rules and regulations thereunder. Notwithstanding the
foregoing, Seller makes no representation or warranty with respect to any
information about, or supplied or omitted by, the Company which is contained in
any of the foregoing documents.
SECTION 2.12 Title to Property. Seller and each of the Seller Subsidiaries has
good and marketable title to all of their respective properties and assets, real
and personal, free and clear of all mortgage liens, and free and clear of all
other liens, charges and encumbrances except liens for taxes not yet due and
payable, pledges to secure deposits and such minor imperfections of title, if
any, as do not materially detract from the value of or interfere with the
present use of the property affected thereby or which, individually or in the
aggregate, would not have a Material
17
Adverse Effect on Seller and the Seller Subsidiaries, taken as a whole; and all
leases pursuant to which Seller or any of the Seller Subsidiaries lease from
others material amounts of real or personal property are in good standing, valid
and effective in accordance with their respective terms, and there is not, under
any of such leases, any existing material default or event of default (or event
which with notice or lapse of time, or both, would constitute a material default
and in respect of which the Seller or such Seller Subsidiary has not taken
adequate steps to prevent such a default from occurring). Substantially all of
Seller's and each of the Seller's Subsidiaries' buildings and equipment in
regular use have been reasonably maintained and are in good and serviceable
condition, reasonable wear and tear excepted.
SECTION 2.13 Environmental Matters. Except as set forth in Section 2.13 of the
Seller Disclosure Schedule, Seller represents and warrants that to the best of
Seller's knowledge: (i) each of the Seller, the Seller's Subsidiaries,
properties owned or operated by the Seller or the Seller's Subsidiaries, the
Participation Facilities and the Loan Properties (each as hereinafter defined)
are and have been in compliance with all applicable federal, state and local
laws including common law, rules, guidance, regulations and ordinances and with
all applicable decrees, orders, judgments, and contractual obligations relating
to the environment, health, safety, natural resources, wildlife or hazardous
materials which are hereinafter defined as chemicals, pollutants, contaminants,
wastes, toxic substances, compounds, products, solid, liquid, gas, petroleum or
other regulated substances or materials which are hazardous, toxic or otherwise
harmful to health, safety, natural resources, or the environment ("Environmental
Laws"), except for violations which, either individually or in the aggregate
would not have a Material Adverse Effect on Seller or Seller's Subsidiaries;
(ii) during and prior to the period of (a) the Seller or any of the Seller's
Subsidiaries ownership or operation of any of their respective current
properties, (b) the Seller or any of the Seller's Subsidiaries participation in
the management of any Participation Facility or (c) the Seller's or any of the
Seller's Subsidiaries holding of a security interest in a Loan Property,
Hazardous Materials have not been generated, treated, stored, transported,
released or disposed of in, on, under, above, from or affecting any such
property, except where such release, generation, treatment, storage,
transportation, or disposal would not have either individually or in the
aggregate, a Material Adverse Effect on the Seller or Seller's Subsidiaries;
(iii) there is no asbestos or any material amount ureaformaldehyde materials in
or on any property owned or operated by Seller or Seller's Subsidiaries or any
Loan Property or Participation Facility and no electrical transformers or
capacitors, other than those owned by public utility companies, on any such
properties contain any PCB's; (iv) there are no underground or aboveground
storage tanks and there have never been any underground or aboveground storage
tanks located on, in or under any properties currently or formerly owned or
operated by the Seller or any of Seller's Subsidiaries or any Loan Property or
Participation Facility; (v) Seller or Seller's Subsidiaries have not received
any notice from any governmental agency or third party notifying the Seller or
Seller's Subsidiaries of any Environmental Claim; (vi) and there are no
circumstances with respect to any properties currently owned or operated by the
Seller or any of Seller's Subsidiaries or any Loan Property or Participation
Facility that could reasonably be anticipated (a) to form the basis on an
Environmental Claim against Seller or Seller's Subsidiaries or any properties
currently or formerly owned or operated by the Seller or any of Seller's
Subsidiaries or any Loan Property or Participation Facility or (b) to cause any
properties currently owned or operated by the Seller or any of Seller's
Subsidiaries or any Loan
18
Property or Participation Facility to be subject to any restrictions on
ownership, occupancy, use or transferability under any applicable Environmental
Law or require notification to or consent of any Governmental Authority or third
party pursuant to any Environmental Law.
The following definitions apply for purposes of this Section 2.13: (a) "Loan
Property" means any property in which the Seller or any of the Seller's
Subsidiaries holds a security interest, and, where required by the context, said
term means the owner or operator of such property; (b) "Participation Facility"
means any facility in which the Seller or any of the Seller's Subsidiaries
participates in the management and, where required by the context, said term
means the owner or operator of such property; (c) "Environmental Claims" shall
mean any and all administrative, regulatory, judicial or private actions, suits,
demands, demand letters, notices, claims, liens, notices of non-compliance or
violation, investigations, allegations, injunctions or proceedings relating in
any way to (i) any Environmental Law; (ii) any Hazardous Material including
without limitation any abatements, removal, remedial, corrective or other
response action in connection with any Hazardous Material, Environmental Law or
order of a Governmental Authority or (iii) any actual or alleged damage, injury,
threat or harm to health, safety, natural resources, wildlife, or the
environment, which individually or in the aggregate would have a Material
Adverse Effect on Seller or Seller's Subsidiaries; (d) "Governmental Authority"
shall mean any applicable federal, state, regional, county or local person or
body having governmental authority.
SECTION 2.14 Absence of Agreements. Neither Seller nor any Seller Subsidiary
is a party to any agreement or memorandum of understanding with, or a party to
any commitment letter or similar undertaking to, or is subject to any order or
directive by, or is a recipient of any extraordinary supervisory letter which
restricts materially the conduct of its business (including any contract
containing covenants which limit the ability of Seller or of any Seller
Subsidiary to compete in any line of business or with any person or which
involve any restriction of the geographical area in which, or method by which,
Seller or any Seller Subsidiary may carry on its business (other than as may be
required by Law or applicable regulatory authorities)), or in any manner relates
to its capital adequacy, its credit policies or its management, except for those
the existence of which has been disclosed to the Company prior to the date of
this Agreement, nor has Seller been advised that any federal, state, or
governmental agency is contemplating issuing or requesting (or is considering
the appropriateness of issuing or requesting) any such order, decree, agreement,
memorandum of understanding, extraordinary supervisory letter, commitment letter
or similar submission, except as disclosed by Seller in Section 2.14 of the
Seller Disclosure Schedule.
SECTION 2.15 Taxes. Seller and the Seller Subsidiaries have timely filed all
Material Tax Returns (as defined below) required to be filed by them, and Seller
and the Seller Subsidiaries have timely paid and discharged all Material Taxes
(as defined below) due in connection with or with respect to the filing of such
Tax Returns, except such as are being contested in good faith by appropriate
proceedings and with respect to which Seller is maintaining reserves adequate
for their payment. To the best of the knowledge of Seller, the liability for
Taxes set forth on each such Tax Return adequately reflects the Taxes required
to be reflected on such Tax Return. For purposes of this Agreement, "Tax" or
"Taxes" shall mean
19
taxes, charges, fees, levies, and other governmental assessments and impositions
of any kind, payable to any federal, state, local or foreign governmental entity
or taxing authority or agency, including, without limitation, (i) income,
franchise, profits, gross receipts, estimated, ad valorem, value added, sales,
use, service, real or personal property, capital stock, license, payroll,
withholding, disability, employment, social security, workers compensation,
unemployment compensation, utility, severance, production, excise, stamp,
occupation, premiums, windfall profits, transfer and gains taxes, (ii) customs
duties, imposts, charges, levies or other similar assessments of any kind, and
(iii) interest, penalties and additions to tax imposed with respect thereto; and
"Tax Returns" shall mean returns, reports, and information statements with
respect to Taxes required to be filed with the United States Internal Revenue
Service (the "IRS") or any other governmental entity or taxing authority or
agency, domestic or foreign, including, without limitation, consolidated,
combined and unitary tax returns. Except as otherwise disclosed in the Seller's
Disclosure Schedule, to the best knowledge of the Seller, neither the IRS nor
any other governmental entity or taxing authority or agency is now asserting,
either through audits, administrative proceedings or court proceedings, any
deficiency or claim for additional Taxes. Except as otherwise disclosed, neither
Seller nor any of the Seller Subsidiaries has granted any waiver of any statute
of limitations with respect to, or any extension of a period for the assessment
of, any Tax. Except as otherwise disclosed in the Seller's Disclosure Schedule
and except for statutory liens for current taxes not yet due, there are no
material tax liens on any assets of Seller or any of the Seller Subsidiaries.
Except as otherwise disclosed in the Seller's Disclosure Schedule neither Seller
nor any of the Seller Subsidiaries has received a ruling or entered into an
agreement with the IRS or any other taxing authority that would have a Material
Adverse Effect on Seller or the Seller Subsidiaries, taken as a whole, after the
Effective Time. Except as otherwise disclosed in the Seller's Disclosure
Schedule, no agreements relating to allocating or sharing of Taxes exist among
Seller and the Seller Subsidiaries. Neither Seller nor any of the Seller
Subsidiaries has made an election under Section 341(f) of the Code.
SECTION 2.16 Insurance. Section 2.16 of the Seller Disclosure Schedule lists
all material policies of insurance of Seller and the Seller Subsidiaries
currently in effect. Neither Seller nor any of the Seller Subsidiaries has any
liability for unpaid premiums or premium adjustments not properly reflected on
Seller's financial statements included in Seller's Report on Form 10-Q for the
quarter ended December 31, 1996.
SECTION 2.17 Brokers. No broker, finder or investment banker (other than
Xxxxxx X. Xxxxx and Company, Inc.) is entitled to any brokerage, finder's or
other fee or commission in connection with the transactions contemplated by this
Agreement based upon arrangements made by or on behalf of Seller. Prior to the
date of this Agreement, Seller has furnished to the Company a complete and
correct copy of all agreements between Seller and Xxxxxx X. Xxxxx and Company,
Inc. pursuant to which such firm would be entitled to any payment relating to
the transactions contemplated hereunder.
20
SECTION 2.18 Tax Matters.
(a) Neither Seller nor, to the best of Seller's knowledge, any of its
affiliates has through the date of this Agreement taken or agreed to take any
action that would prevent the Merger from qualifying as a reorganization under
Section 368(a)(1)(A) of the Code.
(b) To Seller's knowledge, there is no plan or intention on the part of
any Seller Affiliate (as defined below) who will receive Company Common Stock
to sell or otherwise dispose of an amount of Company Common Stock to be
received in the Merger which would reduce the ownership of Seller's
Shareholders in Company Common Stock to a number of shares having in the
aggregate a value at the time of the Merger of less than 50 percent of the
total value of the Seller Common Stock outstanding immediately prior to the
Merger.
SECTION 2.19 Material Adverse Effect. Since December 31, 1996, there has been
no Material Adverse Effect on Seller and the Seller Subsidiaries, taken as a
whole.
SECTION 2.20 Material Contracts. Except as disclosed in the Seller Disclosure
Schedule (which may reference other sections of such Schedule) and, except as
included as exhibits in the Seller SEC Reports, neither the Seller nor any
Seller Subsidiary is a party to or obligated under any contract, agreement or
other instrument or understanding which is not terminable by Seller or the
Seller Subsidiary without additional payment or penalty within 60 days and
obligates Seller or any Seller Subsidiary for payments or other consideration
with a value in excess of $100,000, or would require disclosure by Seller
pursuant to item 601(b)(10) of Regulation S-K under the Exchange Act.
SECTION 2.21 Opinion of Financial Advisor. Seller has received the opinion of
Xxxxxx X. Xxxxx and Company, Inc. on the date of this Agreement to the effect
that, as of the date of this Agreement, the consideration to be received in the
Merger by Seller's shareholders is fair to Seller's shareholders from a
financial point of view, and Seller will promptly, after the date of this
Agreement, deliver a copy of such opinion to the Company.
SECTION 2.22 Vote Required. The affirmative vote of a majority of the votes
that holders of the outstanding shares of Seller Common Stock are entitled to
cast is the only vote of the holders of any class or series of Seller capital
stock necessary to approve the Merger.
SECTION 2.23 Options; Employment Agreements. Seller will use all reasonable
efforts to cause each holder of an option to purchase Seller Common Stock to,
concurrently with the execution of this Agreement, execute an agreement amending
the terms of such option in the form of Exhibit 2.23 (an "Option Exercise
Agreement"), and to cause each director or officer of Seller who is a party to,
or a participant in, the Employment Contract, the Deferred Compensation Plan for
Officers, the Nonemployee Director Deferred Compensation Plan or the Nonemployee
Director Retirement Plan to execute an agreement amending the relevant contract
or agreement as regards that director or officer in the form of Exhibit 2.23. To
the extent that Seller is unable to obtain Option Exercise Agreements and
amendments to the Employment
21
Agreement, currently with the execution of this Agreement, Seller shall continue
to use all reasonable efforts to obtain such agreements as soon as practicable
after the date of this Agreement. As of date hereof, the individuals listed on
Section 2.23 of the Seller Disclosure Schedule have executed Option Exercise
Agreements. Seller may waive on behalf of both Seller and the Company any
requirement contained in any such agreement restricting the exercise of stock
options with respect to no more than 500,000 shares of Seller Common Stock, less
the amount, if any, of options for which Option Exercise Agreements have not
been executed.
ARTICLE III - REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as set forth in the Disclosure Schedule delivered by the Company to
Seller prior to the execution of this Agreement (the "Company Disclosure
Schedule"), which shall identify exceptions by specific Section references, the
Company hereby represents and warrants to Seller that:
SECTION 3.1 Organization and Qualification; Subsidiaries.
(a) The Company is a company duly organized, validly existing and in good
standing under the laws of the State of Wisconsin and a registered bank
holding company under the BHCA. Each subsidiary of the Company (a "Company
Subsidiary" or, collectively, "Company Subsidiaries") is a bank or a
corporation duly organized, validly existing and in good standing under the
laws of the state of its incorporation or the United States of America. Each
of the Company and the Company Subsidiaries have the requisite corporate power
and authority and are in possession of all franchises, grants, authorizations,
licenses, permits, easements, consents, certificates, approvals and orders
("Company Approvals") necessary to own, lease and operate their respective
properties and to carry on their respective business as now being conducted,
including appropriate authorizations from the Federal Reserve Board, the FDIC,
the DFI or the OCC and neither Seller nor any Seller Subsidiary has received
any notice of proceedings relating to the revocation or modification of any
Seller Approvals, except in each case where the failure to be so organized,
existing and in good standing or to have such power, authority, Company
Approvals and revocations or modifications would not, individually or in the
aggregate, have a Material Adverse Effect on the Company and the Company
Subsidiaries, taken as a whole.
(b) The Company and each Company Subsidiary is duly qualified or licensed
as a foreign corporation to do business, and is in good standing, in each
jurisdiction where the character of its properties owned, leased or operated
by it or the nature of its activities makes such qualification or licensing
necessary, except for such failures to be so duly qualified or licensed and in
good standing that would not, either individually or in the aggregate, have a
Material Adverse Effect on the Company and the Company Subsidiaries, taken as
a whole.
(c) A true and complete list of all of the Company Subsidiaries is set
forth in Exhibit 21 to the Company's Annual Report on Form 10-K for the year
ended December
22
31, 1996 ("Exhibit 21") previously delivered to Seller. Except as set forth in
the Company Disclosure Schedule, the Company and/or one or more of the Company
Subsidiaries owns beneficially and of record substantially all of the
outstanding shares of capital stock of each of the Company Subsidiaries.
Except for the Company Subsidiaries, set forth on said Exhibit 21, the Company
does not directly or indirectly own any equity or similar interests in, or any
interests convertible into or exchangeable or exercisable for any equity or
similar interest in, any corporation, partnership, joint venture or other
business, other than in the ordinary course of business, and in no event in
excess of 5% of the outstanding equity securities of such entity.
SECTION 3.2 Articles of Incorporation and By-Laws. The Company has previously
furnished to Seller a complete and correct copy of the Company Articles and the
Company By-Laws. The Company Articles and Company By-Laws are in full force and
effect. The Company is not in violation of any of the provisions of the Company
Articles or the Company By-Laws.
SECTION 3.3 Capitalization.
(a) The authorized capital stock of the Company consists of (i)
160,000,000 shares of Company Common Stock of which, as of February 28, 1997,
88,921,199 shares were issued and outstanding, 10,573,136 shares were held in
treasury, 7,195,993 shares were reserved for issuance pursuant to outstanding
employee stock options, 5,775,071 shares were reserved for issuance pursuant
to the exchange of the Company Preferred Stock (as defined below) and
1,9922,115 shares were reserved for issuance pursuant to 8 1/2% Convertible
Subordinated Notes due 1997; (ii) 5,000,000 shares of Preferred Stock, $1.00
par value ("Company Preferred Stock"), of which 2,000,000 shares of Company
Preferred Stock has been designated as Series A Convertible Preferred Stock
("Series A Preferred Stock") and 517,129 of which, as of the date of this
Agreement, are outstanding. All of the outstanding shares of the Company's
capital stock have been duly authorized and validly issued and are fully paid
and non-assessable, except pursuant to Section 180.0622(2)(b) of the WBCL.
Except as set forth in clauses (i)-(ii), above, as of the date of this
Agreement there are no options, warrants or other rights, agreements,
arrangements or commitments of any character relating to the issued or
unissued capital stock of the Company or any Company Subsidiary or obligating
the Company or any Company Subsidiary to issue or sell any shares of capital
stock of, or other equity interests in, the Company or any Company Subsidiary.
(b) The shares of Company Common Stock to be issued pursuant to the
Merger will, upon issuance in accordance with the provisions of this
Agreement, be duly authorized, validly issued, fully paid and non-assessable,
except as otherwise provided by Section 180.0622(2)(b) of the WBCL.
SECTION 3.4 Authority. The Company has the requisite corporate power and
authority to execute and deliver this Agreement, and to perform its obligations
hereunder and to consummate the transactions contemplated hereby. The execution
and delivery of this
23
Agreement by the Company and the consummation by the Company of the transactions
contemplated hereby has been duly and validly authorized by all necessary
corporate action on the part of the Company, including without limitation the
Company's Board of Directors, and no other corporate proceedings on the part of
the Company are necessary to authorize this Agreement or to consummate the
transactions so contemplated hereby. This Agreement has been duly and validly
executed and delivered by, the Company and constitutes a valid and binding
obligation of the Company and assuming the authorization, execution and delivery
by the Seller, enforceable against the Company in accordance with its terms,
except as enforcement may be limited by laws affecting insured depository
institutions, general principles of equity, whether applied in a court of law or
a court of equity, and by bankruptcy, insolvency and similar laws affecting
creditors' rights and remedies generally.
SECTION 3.5 No Conflict; Required Filings and Consents.
(a) The execution and delivery of this Agreement by the Company does not,
and the performance of this Agreement by the Company shall not, (i) conflict
with or violate the Company Articles or Company By-Laws or the Articles of
Incorporation or By-Laws any Company Subsidiary, (ii) conflict with or violate
any Laws applicable to the Company or any Company Subsidiary or by which any
of their respective properties is bound or affected, or (iii) result in any
breach of or constitute a default (or an event which with notice or lapse of
time or both would become a default) under, or give to others any rights of
termination, amendment, acceleration or cancellation of, or result in the
creation of a lien or encumbrance on any of the properties or assets of the
Company or any Company Subsidiary pursuant to, any note, bond, mortgage,
indenture, contract, agreement, lease, license, permit, franchise or other
instrument or obligation to which the Company or any Company Subsidiary is a
party or by which the Company or any Company Subsidiary or its or any of their
respective properties is bound or affected, except in the case of clause (ii)
and (iii) for any such conflicts, violations, breaches, defaults or other
occurrences that would not, individually or in the aggregate, have a Material
Adverse Effect on the Company and the Company Subsidiaries, taken as a whole.
(b) The execution and delivery of this Agreement by the Company does not,
and the performance of this Agreement by the Company shall not, require any
consent, approval, authorization or permit of, or filing with or notification
to, any governmental or regulatory authority, domestic or foreign, except (i)
for applicable requirements, if any, of the Securities Act, the Exchange Act,
Blue Sky Laws, the BHCA, the WBL and the filing and recordation of appropriate
merger or other documents as required by Wisconsin law and (ii) where the
failure to obtain such consents, approvals, authorizations or permits, or to
make such filings or notifications, would not prevent or delay consummation of
the Merger, or otherwise prevent the Company from performing its obligations
under this Agreement, and would not have a Material Adverse Effect on the
Company or the Company Subsidiaries, taken as a whole.
24
SECTION 3.6 Compliance; Permits. Neither the Company nor any Company
Subsidiary is in conflict with, or in default or violation of, (i) any Law
applicable to the Company or any Company Subsidiary or by which its or any of
their respective properties is bound or affected, or (ii) any note, bond,
mortgage, indenture, contract, agreement, lease, license, permit, franchise or
other instrument or obligation to which the Company or any Company Subsidiary is
a party or by which the Company or any Company Subsidiary or any of its or any
of their respective properties is bound or affected, except for any such
conflicts, defaults or violations which would not, individually or in the
aggregate, have a Material Adverse Effect on the Company or the Company
Subsidiaries, taken as a whole.
SECTION 3.7 Securities and Banking Reports; Financial Statements.
(a) The Company and each Company Subsidiary have filed all forms, reports
and documents required to be filed with (x) the SEC since December 31, 1996,
and as of the date of this Agreement have delivered or made available to
Seller, in the form filed with the SEC, (i) its Annual Reports on Form 10-K
for the fiscal years ended December 31, 1994, 1995 and 1996, respectively,
(ii) all proxy statements relating to the Company's meetings of shareholders
(whether annual or special) held since December 31, 1994, (iii) all Reports on
Form 8-K filed by the Company with the SEC since December 31, 1994, (iv) all
other reports or registration statements (other than Reports on Form 10-Q not
referred to in clause (ii) above) filed by the Company with the SEC since
December 31, 1994, and (v) all amendments and supplements to all such reports
and registration statements filed by the Company with the SEC since December
31, 1994 (collectively, the "Company SEC Reports") and (y) the Federal Reserve
Board, the DFI and any other applicable Federal or state securities or banking
authorities (all such reports and statements are collectively referred to with
the Company SEC Reports as the "Company Reports"). The Company Reports,
including all Company Reports filed after the date of this Agreement, (i) were
or will be prepared in accordance with the requirements of applicable Law and
(ii) did not at the time they were filed, or will not at the time they are
filed, contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
(b) Each of the consolidated financial statements (including, in each
case, any related notes thereto) contained in the Company SEC Reports,
including any Company SEC Reports filed since the date of this Agreement and
prior to or on the Effective Time, have been prepared in accordance with
generally accepted accounting principles applied on a consistent basis
throughout the periods involved (except as may be indicated in the notes
thereto) and each fairly presents the consolidated financial position of the
Company and the Company Subsidiaries as of the respective dates thereof and
the consolidated results of its operations and changes in financial position
for the periods indicated, except that any unaudited interim financial
statements were or are subject to normal and recurring year-end adjustments,
which were not or are not expected to be material in amount.
25
(c) Except (i) for those liabilities that are fully reflected or reserved
against on the consolidated statement of condition of the Company included in
the Company Form 10-K for the year ended December 31, 1996, (ii) for the
liabilities incurred in the ordinary course of business consistent with past
practice since December 31, 1996, and (iii) as set forth in Section 3.7 of the
Company Disclosure Schedule, neither Company nor any Company Subsidiary has
incurred any liability of any nature whatsoever (whether absolute, accrued,
contingent or otherwise and whether due or to become due) that, either alone
or when combined with all similar liabilities, has had, or would reasonably be
expected to have, a Material Adverse Effect on the Company and the Company
Subsidiaries, taken as a whole.
SECTION 3.8 Absence of Certain Changes or Events. Except as disclosed in the
Company SEC Reports filed prior to the date of this Agreement, since December
31, 1996 to the date of this Agreement, the Company and the Company Subsidiaries
have conducted their businesses only in the ordinary course and in a manner
consistent with past practice and, since December 31, 1996, there has not been
(i) any change in the financial condition, results of operations or business of
the Company or any of the Company Subsidiaries having a Material Adverse Effect
on the Company and the Company Subsidiaries, taken as a whole, (ii) any damage,
destruction or loss (whether or not covered by insurance) with respect to any
assets of the Company or any of the Company Subsidiaries having a Material
Adverse Effect on the Company and the Company Subsidiaries, taken as a whole,
(iii) any change by the Company in its accounting methods, principles or
practices, (iv) any revaluation by the Company of any of its assets in any
respect, (v) to the date of this Agreement, any entry by the Company or any of
the Company Subsidiaries into any commitment or transactions material to the
Company and the Company Subsidiaries taken as a whole or (vi) except for
repurchases pursuant to the Company's Common Stock repurchase program or for
regular quarterly cash dividends of Company Common Stock with usual record and
payment dates, to the date of this Agreement, any declaration, setting aside or
payment of any dividends or distributions in respect of shares of Company Common
Stock or any redemption, purchase or other acquisition of any of its securities
or any of the securities of any Company Subsidiary.
SECTION 3.9 Absence of Litigation.
(a) Except as set forth in Section 3.9 of the Company Disclosure Schedule,
neither the Company nor any of the Company Subsidiaries is a party to any, and
there are no pending or, to the best of the Company's knowledge, threatened,
legal, administrative, arbitral or other proceedings, claims, actions or
governmental or regulatory investigations of any nature against the Company or
any of the Company Subsidiaries or challenging the validity or propriety of the
transactions contemplated by this Agreement as to which there is a reasonable
probability of an adverse determination and which, if adversely determined,
would, individually or in the aggregate, have a Material Adverse Effect on the
Company and the Company's Subsidiaries, taken as a whole.
(b) There is no injunction, order, judgment, decree or regulatory restriction
imposed upon the Company, any of the Company Subsidiaries or the assets of the
Company or any of the
26
Company Subsidiaries which has had a Material Adverse Effect on the Company and
the Company's Subsidiaries, taken as a whole.
SECTION 3.10 Employee Benefit Plans.
(a) Compliance with Applicable Laws. Each of the Company's "employee
benefit plans" within the meaning of Section 3(3) of ERISA, for the benefit of
employees of the Company and the Company Subsidiaries (the "Company Plans")
has been operated in all respects in accordance with the requirements of all
applicable Law and all persons who participate in the operation of such
Company Plans and all Company Plan "fiduciaries" (within the meaning of
Section 3(21) of ERISA) have acted in accordance with the provisions of all
applicable Law, except where such violations of applicable Law would not,
individually or in the aggregate, have a Material Adverse Effect on the
Company and the Company Subsidiaries, taken as a whole. The Company and the
Company Subsidiaries have performed all obligations required to be performed
by any of them under, are not in any respect in default under or in violation
of, and the Company and the Company Subsidiaries have no knowledge of any
default or violation by any party to, any Company Plan, except where such
failures, defaults or violations would not, individually or in the aggregate,
have a Material Adverse Effect on the Company and the Company Subsidiaries,
taken as a whole. No legal action, suit or claim is pending or, to the
knowledge of the Company or the Company Subsidiaries, threatened with respect
to any Company Plan (other than claims for benefits in the ordinary course)
and, to the knowledge of the Company or the Company Subsidiaries, no fact or
event exists that could give rise to any such action, suit or claim.
(b) Qualification of Certain Plans. Each Company Plan that is intended to
be qualified under Section 401(a) of the Code or Section 401(k) of the Code
(including each trust, established in connection with such a Plan that is
intended to be exempt from Federal income taxation under Section 501(a) of the
Code) has received a favorable determination letter from the IRS (as defined
herein) that it is so qualified, and the Company is not aware of any fact or
event that has occurred since the date of such determination letter from the
IRS to adversely affect the qualified status of any Company Plan or the exempt
status of any such trust. No trust maintained or contributed to by the Company
or any of the Company Subsidiaries is intended to be qualified as a voluntary
employees' beneficiary association or is intended to be exempt from federal
income taxation under Section 501(c)(9) of the Code.
(c) Absence of Certain Liabilities and Events. There have been no
prohibited transactions (within the meaning of Section 406 of ERISA or Section
4975 of the Code) with respect to any Company Plan. The Company and each of
the Company Subsidiaries has not incurred any liability for any excise tax
arising under Section 4972 or 4980B of the Code and, to the knowledge of
Company or the Company Subsidiaries, no fact or event exists that could give
rise to any such liability.
27
(d) Plan Contributions. All contributions, provisions or payments
required to be made with respect to any Company Plan have been made on or
before their due dates.
SECTION 3.11 Registration Statement; Proxy Statement/Prospectus. The
information supplied by the Company for inclusion in the registration statement
of the Company (the "Registration Statement") pursuant to which the shares of
Company Common Stock to be issued in the Merger will be registered with the SEC
shall not, at the time the Registration Statement (including any amendments or
supplements thereto) is declared effective by the SEC, contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading. The information
supplied by the Company for inclusion in the Proxy Statement/Prospectus shall
not, at the date the Proxy Statement/Prospectus (or any amendment thereof or
supplement thereto) is first mailed to shareholders, at the time of the Seller's
Shareholders' Meeting and at the Effective Time, be false or misleading with
respect to any material fact required to be stated therein, or omit to state any
material fact necessary in order to make the statements made therein, in light
of the circumstances under which they are made, not misleading. If at any time
prior to the Effective Time any event relating to the Company or any of its
affiliates, officers or directors should be discovered by the Company which
should be set forth in an amendment to the Registration Statement or a
supplement to the Proxy Statement/Prospectus, the Company will promptly inform
the Seller. The Registration Statement and the Proxy Statement/Prospectus shall
comply in all material respects as to form with the requirements of the
Securities Act, the Exchange Act and the rules and regulations thereunder.
Notwithstanding the foregoing, the Company makes no representation or warranty
with respect to any information about, or supplied or omitted by, Seller which
is contained in any of the foregoing documents.
SECTION 3.12 Title to Property. The Company and each of the Company
Subsidiaries has good and marketable title to all of their respective properties
and assets, real and personal, free and clear of all mortgage liens, and free
and clear of all other liens, charges and encumbrances except liens for taxes
not yet due and payable, pledges to secure deposits and such minor imperfections
of title, if any, as do not materially detract from the value of or interfere
with the present use of the property affected thereby or which, individually or
in the aggregate, would not have a Material Adverse Effect on the Company and
the Company Subsidiaries, taken as a whole; and all leases pursuant to which the
Company or any of the Company Subsidiaries lease from others material amounts of
real or personal property are in good standing, valid and effective in
accordance with their respective terms, and there is not, under any of such
leases, any existing material default or event of default (or event which with
notice or lapse of time, or both, would constitute a material default and in
respect of which the Company or such subsidiary has not taken adequate steps to
prevent such a default from occurring). Substantially all of the Company's and
each of the Company Subsidiaries' buildings and equipment in regular use have
been reasonably maintained and are in good and serviceable condition, reasonable
wear and tear excepted.
SECTION 3.13 Absence of Agreements. Neither the Company nor any of the Company
Subsidiaries is a party to any agreement or memorandum of understanding with, or
a party to any
28
commitment letter or similar undertaking to, or is subject to any order or
directive by, or is a recipient of any extraordinary supervisory letter which
restricts materially the conduct of its business (including any contract
containing covenants which limit the ability of the Company or Company
Subsidiary to compete in any line of business or with any person or which
involve any restriction of the geographical area in which, or method by which,
the Company or any Company Subsidiary may carry on its business (other than as
may be required by Law or applicable regulatory authorities)), in any manner
relates to its capital adequacy, its credit policies, or its management, except
for those the existence of which has been disclosed to Seller prior to the date
of this Agreement, nor has the Company been advised that any federal, state, or
governmental agency is contemplating issuing or requesting (or is considering
the appropriateness of issuing or requesting) any such order, decree, agreement,
memorandum of understanding, extraordinary supervisory letter, commitment letter
or similar submission, except as disclosed by the Company in Section 3.14 of the
Company Disclosure Schedule.
SECTION 3.14 Taxes. The Company and the Company Subsidiaries have timely filed
all Material Tax Returns (as defined below) required to be filed by them, and
Company and the Company Subsidiaries have timely paid and discharged all
Material Taxes (as defined below) due in connection with or with respect to the
filing of such Tax Returns and have timely paid all other Taxes as are due,
except such as are being contested in good faith by appropriate proceedings and
with respect to which Seller is maintaining reserves adequate for their payment.
For purposes of this Agreement, "Tax" or "Taxes" shall mean taxes, charges,
fees, levies, and other governmental assessments and impositions of any kind,
payable to any federal, state, local or foreign governmental entity or taxing
authority or agency, including, without limitation, (i) income, franchise,
profits, gross receipts, estimated, ad valorem, value added, sales, use,
service, real or personal property, capital stock, license, payroll,
withholding, disability, employment, social security, workers compensation,
unemployment compensation, utility, severance, production, excise, stamp,
occupation, premiums, windfall profits, transfer and gains taxes, (ii) customs
duties, imposts, charges, levies or other similar assessments of any kind, and
(iii) interest, penalties and additions to tax imposed with respect thereto; and
"Tax Returns" shall mean returns, reports, and information statements with
respect to Taxes required to be filed with the IRS or any other governmental
entity or taxing authority or agency, domestic or foreign, including, without
limitation, consolidated, combined and unitary tax returns. Except as otherwise
disclosed, to the best knowledge of the Company, neither the IRS nor any other
governmental entity or taxing authority or agency is now asserting, either
through audits, administrative proceedings or court proceedings, any deficiency
or claim for additional Taxes. Except as otherwise disclosed, neither Company
nor any of the Company's Subsidiaries has granted any waiver of any statute of
limitations with respect to, or any extension of a period for the assessment of,
any Tax. Except as otherwise disclosed and except for statutory liens for
current taxes not yet due, there are no material tax liens on any assets of
Company or any of the Company Subsidiaries. Except as otherwise disclosed
neither Company nor any of the Company Subsidiaries has received a ruling or
entered into an agreement with the IRS or any other taxing authority that would
have a Material Adverse Effect on Company and the Company Subsidiaries, taken as
a whole, after the Effective Time. The accruals and reserves for taxes reflected
in the Seller Balance Sheet are adequate to cover all Taxes accruable through
the date thereof (including Taxes being contested) in accordance with generally
accepted accounting principles.
29
Except as otherwise disclosed, no agreements relating to allocating or sharing
of Taxes exist among Company and the Company Subsidiaries. Neither Company nor
any of the Company Subsidiaries has made an election under Section 341(f) of the
Code.
SECTION 3.15 Brokers. No broker, finder or investment banker (other than
Salomon Brothers, Inc.) is entitled to any brokerage, finder's or other fee or
commission in connection with the transactions contemplated by this Agreement
based upon arrangements made by or on behalf of the Company. Prior to the date
of this Agreement, the Company has furnished Seller a complete and correct copy
of all agreements between the Company and Salomon Brothers Inc. pursuant to
which such firm would be entitled to any payment relating to the transactions
contemplated hereunder.
SECTION 3.16 Tax Matters. Neither the Company nor, to the Company's knowledge,
any of its affiliates has through the date of this Agreement taken or agreed to
take any action that would prevent the Merger from qualifying as a
reorganization under Section 368(a)(1)(A) of the Code.
SECTION 3.17 Material Adverse Effect. Since December 31, 1996 there has been
no Material Adverse Effect on the Company and the Company Subsidiaries, taken as
a whole.
ARTICLE IV - COVENANTS OF SELLER
SECTION 4.1 Affirmative Covenants. Seller hereby covenants and agrees with the
Company that prior to the Effective Time, unless the prior written consent of
the Company shall have been obtained and except as otherwise contemplated
herein, it will and it will cause each Seller Subsidiary to:
(a) operate its business only in the ordinary course consistent with
past practices;
(b) use all reasonable efforts to preserve intact its business
organization and assets, maintain its rights and franchises, retain the
services of its officers and key employees and maintain its relationships with
customers;
(c) use all reasonable efforts to maintain and keep its properties in as
good repair and condition as at present, ordinary wear and tear excepted;
(d) use all reasonable efforts to keep in full force and effect
insurance and bonds comparable in amount and scope of coverage to that now
maintained by it;
(e) use all reasonable efforts to perform in all material respects all
obligations required to be performed by it under all material contracts,
leases, and documents relating to or affecting its assets, properties, and
business; and
30
(f) take such reasonable actions as are requested by the Company to
complete the Merger and the Bank Merger, including but not limited to (i)
amending the Articles of Incorporation of Seller's Bank Subsidiary, (ii)
causing Seller's Bank Subsidiary to enter into an agreement documenting the
terms and conditions of the Bank Merger (the "Bank Merger Agreement") and
(iii) approving the Bank Merger and Bank Merger Agreement as sole shareholder
of Seller's Bank Subsidiary.
SECTION 4.2 Negative Covenants. Except as specifically contemplated by this
Agreement, from the date of this Agreement until the Effective Time, Seller
shall not do, or permit any Seller Subsidiary to do, without the prior written
consent of the Company, any of the following:
(a) (i) except as required by applicable law or to maintain
qualification pursuant to the Code, adopt, amend, renew or terminate any Plan
or any agreement, arrangement, plan or policy between the Seller or any
Subsidiary of the Seller and one or more of its current or former directors,
officers or employees or (ii) except for normal increases in the ordinary
course of business consistent with past practice, and subject to the specific
provisions of Annex B, or, except as required by applicable law, increase in
any manner the base salary, bonus incentive compensation or fringe benefits of
any director, officer or employee or pay any benefit not required by any plan
or agreement as in effect as of the date hereof (including, without
limitation, the granting of stock options, stock appreciation rights,
restricted stock, restricted stock units or performance units or shares);
(b) (i) except as provided below declare or pay any dividend on, or
make any other distribution in respect of, its outstanding shares of capital
stock, except for (A) regular quarterly cash dividends on Seller Common Stock
with usual record and payment dates for such dividends with each such dividend
at a rate per share of Seller Common Stock not in excess of $.30 and (B)
dividends by a Seller Subsidiary to Seller;
(ii) declare or pay any dividends or make any distributions in any
amount on Seller Common Stock in or with respect to the quarter in which
the Effective Time shall occur and in which the shareholders of Seller
Common Stock are entitled to receive dividends on the shares of Company
Common Stock into which the shares of Seller Common Stock have been
converted; provided that, it is the intent of this clause (ii) to provide
that the holders of Seller Common Stock will receive either the payment
of cash dividends on their shares of Seller Common Stock or the payment
of cash dividends as the holders of shares of Company Common Stock
received in exchange for the shares of Seller Common Stock pursuant to
this Agreement for the calendar quarter during which the Effective Time
shall occur, but will not receive and will not become entitled to receive
for the same calendar quarter both the payment of a cash dividend as
shareholders of Seller Common Stock and the payment of a cash dividend as
the holders of shares of Company Common Stock received in exchange for
the shares of Seller Common Stock pursuant to this Agreement; and if
Seller does not declare and pay cash dividends in a particular calendar
quarter because of Seller's reasonable
31
expectation that the Effective Time was to have occurred in such calendar
quarter wherein the holders of Seller Common Stock would have become
entitled to receive cash dividends for such calendar quarter on the
shares of Company Common Stock to have been exchanged for the shares of
Seller Common Stock pursuant to this Agreement, and the Effective Time
does not in fact occur in such calendar quarter, then, as a result
thereof, Seller shall be entitled to declare and pay a cash dividend
(within the limitations of this clause (ii)) on such shares of Seller
Common Stock for such calendar quarter by the declaration and payment of
such cash dividends as soon as reasonably practicable after the end of
such calendar quarter;
(c) (i) redeem, purchase or otherwise acquire any shares of its capital
stock or any securities or obligations convertible into or exchangeable for
any shares of its capital stock, or any options, warrants, conversion or other
rights to acquire any shares of its capital stock or any such securities or
obligations; (ii) merge with or into any other corporation or bank, permit any
other corporation or bank to merge into it or consolidate with any other
corporation or bank, or effect any reorganization or recapitalization; (iii)
purchase or otherwise acquire any substantial portion of the assets, or more
than 5% of any class of stock, of any corporation, bank or other business
other than in the ordinary course of business and consistent with past
practice; (iv) liquidate, sell, dispose of, or encumber any assets or acquire
any assets, other than in the ordinary course of its business consistent with
past practice; or (v) split, combine or reclassify any of its capital stock or
issue or authorize or propose the issuance of any other securities in respect
of, in lieu of or in substitution for shares of its capital stock;
(d) issue, deliver, award, grant or sell, or authorize or propose the
issuance, delivery, award, grant or sale of, any shares of any class of
capital stock of Seller or any Seller Subsidiary (including shares held in
treasury) or any rights, warrants or options to acquire, any such shares,
other than the issuance of Seller Common Stock issuable upon exercise of
employee stock options outstanding as of the date of this Agreement or
pursuant to Seller Plans, in effect as of the date of this Agreement;
(e) authorize or permit any of its officers, directors, employees or
agents to directly or indirectly solicit, initiate or encourage any inquiries
relating to, or the making of any proposal which constitutes, a "takeover
proposal" (as defined below), or (i) recommend or endorse any takeover
proposal, (ii) participate in any discussions or negotiations with respect to
a takeover proposal, or (iii) provide third parties with any nonpublic
information relating to any such inquiry or proposal; provided, however, that
the Seller may, and may authorize and permit its officers, directors,
employees or agents to, provide third parties with nonpublic information,
otherwise facilitate any effort or attempt by any third party to make or
implement a takeover proposal, recommend or endorse any takeover proposal with
or by any third party, and participate in discussions and negotiations with
any third party relating to any takeover proposal, if such party's Board of
Directors, after having consulted with and considered the advice of outside
counsel, has determined in good faith that such actions are necessary for the
discharge of
32
the fiduciary duties of the Seller's Board of Directors. The Seller will
immediately cease and cause to be terminated any existing activities,
discussions or negotiations previously conducted with any parties other than
Company with respect to any of the foregoing. The Seller will take all actions
necessary or advisable to inform the appropriate individuals or entities
referred to in the first sentence hereof of the obligations undertaken in this
Section 4.2(e). The Seller will notify Company immediately if any such
inquiries or takeover proposals are received by, any such information is
requested from, or any such negotiations or discussions are sought to be
initiated or continued with, the Seller. As used in this Agreement, "takeover
proposal" shall mean any tender or exchange offer, proposal for a merger,
consolidation or other business combination involving the Seller or any Seller
Subsidiary or any proposal or offer to acquire in any manner a substantial
equity interest in, or a substantial portion of the assets of, the Seller or
any Seller Subsidiary other than the transactions contemplated or permitted by
this Agreement;
(f) propose or adopt any amendments to its articles of incorporation or
by-laws in any way adverse to the Company;
(g) change any of its methods of accounting in effect at June 30, 1996,
or change any of its methods of reporting income or deductions for federal
income tax purposes from those employed in the preparation of the federal
income tax returns for the taxable year ending December 31, 1996, except as
may be required by Law or generally accepted accounting principles;
(h) change in any material respect any lending, investment, liability
management or other material policies concerning the business or operations of
Seller or any of the Seller Subsidiaries, except as required by Law,
including, without limitation: (i) acquire or sell any contracts for the
purchase or sale of financial or other futures or any put or call options, or
enter into any xxxxxx or interest rate swaps relating to cash, securities, or
any commodities whatsoever or enter into any other derivative transaction;
(ii) except for transactions disclosed in Section 2.13 of the Seller
Disclosure Schedule, sell, assign, transfer, pledge, mortgage or otherwise
encumber, or permit any encumbrances to exist with respect to, any of its
assets with a value in excess of $100,000 individually, except in the ordinary
course of business consistent with past practice; (iii) make any investment
with an interest maturity of five years or more except in the ordinary course
of business consistent with past practice; (iv) incur any material liabilities
or material obligations, whether directly or by way of guaranty, including any
obligation for borrowed money, whether or not evidenced by a note, bond,
debenture or similar instrument, except in the ordinary course of business
consistent with past practice and in no event in excess of $100,000
individually; (v) enter into any agreement with respect to any acquisition of
a material amount of assets or securities or any discharge, waiver,
satisfaction, release or relinquishment of any material contract rights,
liens, encumbrances, debt or claims, not in the ordinary course of business
and consistent with past practices and in no event with a value in excess of
$200,000 individually; (vi) settle any claim, action, suit, litigation,
proceeding, arbitration, investigation or controversy of any kind, for any
amount in excess of $250,000, net of any insurance proceeds, or in any manner
which would restrict
33
in any material respect the operations or business of Seller or any of the
Seller Subsidiaries; (vii) make any capital expenditure, except in the
ordinary course and consistent with past practice and in no event in excess of
$100,000 individually; or (viii) take any action or fail to take any action
which individually or in the aggregate can be expected to have a Material
Adverse Effect on the Seller and the Seller Subsidiaries, taken as a whole;
and,
(i) agree in writing or otherwise to do any of the foregoing.
SECTION 4.3 Letter of Seller's Accountants. Seller shall use its reasonable
best efforts to cause to be delivered to the Company "comfort" letters of KPMG
Peat Marwick, LLP, Seller's independent public accountants, dated the date on
which the Registration Statement shall become effective and the Effective Time,
respectively, and addressed to the Company, in a form reasonably satisfactory to
the Company and reasonably customary in scope and substance for letters
delivered by independent public accountants in connection with registration
statements similar to the Registration Statement and transactions such as those
contemplated by this Agreement.
SECTION 4.4 Access and Information.
(a) Until the Effective Time and upon reasonable notice, and subject to
applicable laws relating to the exchange of information, the Seller shall, and
shall cause each Seller Subsidiary to, afford to the Company's officers,
employees, accountants, legal counsel and other representatives of Company,
access, during normal business hours, to all its properties, books, contracts,
commitments and records. Prior to the Effective Time, Seller shall (and shall
cause each Seller Subsidiary to) furnish promptly (as soon as available or
received by Seller or any Seller Subsidiary) to the Company (i) a copy of each
Seller Report filed by it or received by it (to the extent not prohibited by
Law and if so prohibited the Seller shall promptly so notify the Company)
after the date of this Agreement and prior to the Effective Time pursuant to
the requirements of federal or state securities laws, the BHCA, any other
federal or state banking laws or any other applicable Laws promptly after such
documents are available, (ii) the monthly financial statements of Seller and
the Seller Subsidiaries (as prepared by Seller in accordance with its normal
accounting procedures) promptly after such financial statements are available
without further request by the Company, (iii) a copy of any action, including
all minutes, taken by the Board of Directors, or any committee thereof, of
Seller and the Seller Subsidiaries and any documents or other materials of any
kind provided to such Boards or Committees promptly after such action,
minutes, materials or other documents become available without further request
by the Company, (iv) a copy of each Tax Return filed by Seller and each Seller
Subsidiary for the three most recent years available, a copy of any
correspondence received from the IRS or any other governmental entity or
taxing authority or agency and any other correspondence relating to Taxes, and
any other documents relating to Taxes as the Company may reasonably request,
and (v) all other information concerning its business, properties and
personnel as Company may reasonably request, other than in each case reports
or documents which Seller is not
34
permitted to disclose under applicable law or binding agreement entered into
prior to the date of this Agreement. The parties hereto will make appropriate
substitute disclosure arrangements under circumstances in which the
restrictions of the preceding sentence apply.
(b) Unless otherwise required by Law, the parties will hold any such
information which is nonpublic in confidence in accordance with the terms of
the confidentiality agreements in effect between the parties on the date of
this Agreement.
SECTION 4.5 Update Disclosure; Breaches.
(a) From and after the date of this Agreement until the Effective Time,
Seller shall update the Seller Disclosure Statement on a regular basis by
written notice to the Company to reflect any matters which have occurred from
and after the date of this Agreement which, if existing on the date of this
Agreement, would have been required to be described therein; provided that,
without limiting the Company's rights under Section 4.4, (i) to the extent
that any information that would be required to be included in an update under
this Section 4.5(a) would have in the past been contained in internal reports
prepared by Seller or any Seller Subsidiary in the ordinary course, such
update may occur by delivery of such internal reports prepared in accordance
with past practice, with appropriate steps taken by Seller to identify
relevant information contained therein, and (ii) to the extent that updating
required under this Section is unduly burdensome to Seller, Seller and the
Company will use their best efforts to develop alternate updating procedures
utilizing, wherever possible, existing reporting systems.
(b) Seller shall, in the event it becomes aware of the impending or
threatened occurrence of any event or condition which would cause or
constitute a material breach (or would have caused or constituted a material
breach had such event occurred or been known prior to the date of this
Agreement) of any of its representations or agreements contained or referred
to herein, give prompt written notice thereof to the Company and use its best
efforts to prevent or promptly remedy the same.
SECTION 4.6 Affiliates; Tax Treatment. Within thirty (30) days after the
date of this Agreement, (a) Seller shall deliver to the Company a letter
identifying all persons who are then "affiliates" of Seller, including, without
limitation, all directors and executive officers of Seller, for purposes of Rule
145 promulgated under the Securities Act (each a "Seller Affiliate") and (b)
Seller shall advise the persons identified in such letter of the resale
restrictions imposed by applicable securities laws and shall use reasonable
efforts to obtain from each person identified by mutual agreement of the
parties, such letter to be in a form mutually agreed to by the parties. Seller
shall use its reasonable best efforts to obtain from any person who becomes an
affiliate of Seller after Seller's delivery of the letter referred to above, and
on or prior to the Effective Time, a written agreement substantially in such
form as soon as practicable after attaining such status. Seller will use its
reasonable best efforts to cause the Merger to qualify as a reorganization under
Section 368(a)(1)(A) of the Code.
35
SECTION 4.7 Expenses.
(a) All Expenses (as defined below) incurred by the Company and Seller
shall be borne solely and entirely by the party which has incurred the same,
except that the parties shall share equally in the expense of printing and
filing the Registration Statement and the Proxy Statement/Prospectus and all
SEC and other regulatory filing fees incurred in connection herewith.
Notwithstanding the foregoing, the Company shall reimburse Seller for all
direct or indirect costs and expenses incurred by Seller related to the Data
Processing Conversion (including without limitation any cost related to write-
offs, hardware, employee layoffs, equipment purchases and contract termination
costs).
(b) "Expenses" as used in this Agreement shall include all reasonable
out-of-pocket expenses (including, without limitation, all fees and expenses
of counsel, accountants, investment bankers, experts and consultants to the
party and its affiliates) incurred by a party or on its behalf in connection
with or related to the authorization, preparation and execution of this
Agreement, the solicitation of shareholder approvals and all other matters
related to the closing of the transactions contemplated hereby.
SECTION 4.8 Delivery of Shareholder List. Seller shall arrange to have its
transfer agent deliver to the Company or its designee, from time to time prior
to the Effective Time, a true and complete list setting forth the names and
addresses of the Seller shareholders, their holdings of stock as of the latest
practicable date, and such other shareholder information as the Company may
reasonably request.
SECTION 4.9 Loan and Investment Policies. To the extent permitted by
applicable law or regulations, the Company and Seller agree to establish, within
30 days of the date of this Agreement at Seller's Bank and any Seller
Subsidiaries which make loans, loan and investment policies and procedures
designed to insure safe and sound banking practices, which shall remain in
effect, except as otherwise agreed in writing by the Company, for the period
prior to the Effective Time. To the extent permitted by applicable law or
regulations, such policies and procedures shall apply to, among other matters,
the following: (i) making or renewing any commitments or loans, or purchase or
renewals of any participations in loans, in excess of an amount to be agreed
upon; (ii) making, committing to make or renewing any loan to any affiliate of
Seller or the Seller Subsidiaries or any family member of such affiliate or any
entity in which such affiliate has a material interest; (iii) making any
investment or commitment to invest, or making any loan, in excess of an amount
to be agreed with respect to any commercial real estate or in or with respect to
any commercial real estate development project; or (iv) entering into any
contract, lease, or license under which Seller or any Seller Subsidiary will be
bound to pay in excess of an amount to be agreed over the life of such agreement
or voluntarily committing any act or omission which constitutes a breach or
default by Seller or any Seller Subsidiary under any material contract, lease or
license to which Seller or any Seller Subsidiary is a party or by which it or
any of its properties are bound. To the extent permitted by applicable law or
regulations, the Company shall have the right to designate at least two (2)
observers to attend all meetings of Seller's (i) Senior Credit Committee, or
similar committee at any Seller Subsidiary designated by the Company, and (ii)
investment committee or similar committee at any Seller Subsidiary, and
36
Seller shall ensure that such representatives receive all information given by
Seller or its agents to Seller's members of said committees.
ARTICLE V - COVENANTS OF THE COMPANY
SECTION 5.1 Affirmative Covenants. The Company hereby covenants and agrees
with Seller that prior to the Effective Time, unless the prior written consent
of Seller shall have been obtained and except as otherwise contemplated herein,
it will:
(a) maintain its corporate existence in good standing and maintain all
books and records in accordance with accounting principles and practices as
utilized in the Company's financial statements applied on a consistent basis;
and
(b) conduct its business in a manner that does not violate any Law,
except for possible violations which individually or in the aggregate do not,
and, insofar as reasonably can be foreseen, in the future will not, have a
Material Adverse Effect on the Company and the Company Subsidiaries, taken as
a whole.
SECTION 5.2 Negative Covenants. Except as set forth in Section 5.2 of the
Company Disclosure Schedule or as otherwise contemplated by this Agreement, from
the date of this Agreement until the Effective Time, the Company shall not do,
or agree to commit to do, or permit any of its subsidiaries to do, without the
prior written consent of Seller any of the following:
(a) solely in the case of Company, declare or pay any extraordinary or
special dividends on or make any other extraordinary or special distributions
in respect of any of its capital stock; provided, however, that nothing
contained herein shall prohibit Company from increasing the quarterly cash
dividend on the Company Common Stock;
(b) take any action that is intended or may reasonably be expected to
result in any of its representations and warranties set forth in this
Agreement being or becoming untrue in any material respect, or in any of the
conditions to the Merger set forth in Article VII not being satisfied, or in a
violation of any provision of this Agreement or the Bank Merger Agreement
except, in every case, as may be required by applicable law;
(c) take or cause to be taken any action which would disqualify the
Merger as a tax free reorganization under Section 368 of the Code;
(d) amend its Articles of Incorporation or By-laws or other governing
instrument in a manner which would adversely affect in any manner the terms of
the Company Common Stock or the ability of Company to consummate the
transactions contemplated hereby;
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(e) enter into any agreement providing for, or otherwise participate in,
any merger, consolidation or other transaction in which the Company or any
surviving corporation would be required not to consummate the Merger or any of
the other transactions contemplated hereby in accordance with the terms of
this Agreement, as the case may be; or
(f) agree to do any of the foregoing.
SECTION 5.3 Access and Information.
(a) Until the Effective Time and upon reasonable notice and subject to
applicable laws relating to the exchange of information, Company shall, and
shall cause each Company Subsidiary to, afford to the Seller's officers,
employees, accountants, legal counsel and other representatives of the Seller,
access, during normal business hours, to all its properties, books, contracts,
commitments and records. Prior to the Effective Time, Company shall (and
shall cause each Company Subsidiary to) furnish promptly (as soon as available
or received by Company or any Company Subsidiary) to the Seller (i) a copy of
each Company Report filed by it or received by it (to the extent not
prohibited by Law and if so prohibited, the Company shall promptly so notify
the Seller) after the date of this Agreement and prior to the Effective Time
pursuant to the requirements of federal or state securities laws, the BHCA,
any other federal or state banking laws or any other applicable Laws promptly
after such documents are available and (ii) all other information concerning
the business, properties and personnel of the Company or the Company
Subsidiaries as Seller may reasonably request, other than in each case reports
or documents which the Company is not permitted to disclose under applicable
law or binding agreement entered in to prior to the date of this Agreement.
The parties hereto will make appropriate substitute disclosure arrangements
under circumstances in which the restrictions of the preceding sentence apply.
(b) Unless otherwise required by Law, the parties will hold any such
information which is nonpublic in confidence pursuant to the terms of the
confidentiality agreements in effect between the parties on the date of this
Agreement.
SECTION 5.4 Breaches. The Company shall, in the event it becomes aware of
the impending or threatened occurrence of any event or condition which would
cause or constitute a material breach (or would have caused or constituted a
material breach had such event occurred or been known prior to the date of this
Agreement) of any of its representations or agreements contained or referred to
herein, give prompt written notice thereof to the Seller and use its best
efforts to prevent or promptly remedy the same.
SECTION 5.5 Stock Exchange Listing. The Company shall use all reasonable
efforts to cause the shares of Company Common Stock to be issued in the Merger
to be approved for listing on the NASDAQ/NMS prior to the Effective Time.
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SECTION 5.6 Tax Treatment. The Company will use its reasonable best efforts
to cause the Merger to qualify as a reorganization under Section 368(a)(1)(A) of
the Code.
SECTION 5.7 Stock Options. (a) At the Effective Time, each option treated
as an ISO granted by the Seller (a "Seller Option") to purchase shares of Seller
Common Stock which is outstanding and unexercised immediately prior thereto
shall be converted automatically into an option to purchase shares of Company
Common Stock in an amount and at an exercise price determined as provided below
(and otherwise subject to the terms of the Seller's 1993 Incentive Stock Option
Plan and 1993 Stock Option Plan for Outside Directors (the "Option Plans")).
(i) The number of shares of Company Common Stock to be subject to
the new option shall be equal to the product of the number of shares of
Seller Common Stock subject to the original option and the Per Share
Stock Consideration, provided that any fractional shares of Company
Common Stock resulting from such multiplication shall be rounded down to
the nearest share; and
(ii) The exercise price per share of Company Common Stock under the
new option shall be equal to the exercise price per share of Seller
Common Stock under the original option divided by the Per Share Stock
Consideration, provided that such exercise price shall be rounded up to
the nearest cent.
The adjustment provided herein with respect to any options which are ISOs
shall be and is intended to be effected in a manner which is consistent with
Section 424(a) of the Code. The duration and other terms of the new option
shall be the same as the original option, except that all references to the
Seller shall be deemed to be references to Company.
(b) Within five days after the Effective Time, Company shall file with
the SEC a registration statement on an appropriate form under the Securities
Act with respect to the shares of Company Common Stock subject to options to
acquire Company Common Stock issued pursuant to Section 5.7(a) hereof, and
shall use its best efforts to maintain the current status of the prospectus
contained therein, as well as comply with applicable state securities or "blue
sky" laws, for so long as such options remain outstanding.
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ARTICLE VI - ADDITIONAL AGREEMENTS
SECTION 6.1 Proxy Statement/Prospectus; Registration Statement. As promptly
as practicable after the execution of this Agreement, Seller and the Company
shall prepare and file with the SEC the Proxy Statement/Prospectus and
registration statement on Form S-4 promulgated under the Securities Act and the
Exchange Act (or on such other form as shall be appropriate) relating to the
approval of the Merger by the shareholders of Seller and shall use all
reasonable efforts to cause the Registration Statement to become effective as
soon thereafter as practicable. The Proxy Statement/Prospectus shall include
the recommendation of the Board of Directors of Seller in favor of the Merger,
unless the Board of Directors of Seller shall have determined in good faith
based on advice of counsel that such recommendation would violate its fiduciary
duty to Seller's Shareholders.
SECTION 6.2 Meeting of Seller's Shareholders. Seller shall promptly after the
date of this Agreement take all action necessary in accordance with the WBCL and
the Seller Articles and the Seller By-Laws to convene the Seller Shareholders'
Meeting. Seller shall use its best efforts to solicit from shareholders of
Seller proxies in favor of the Merger and shall take all other action necessary
or advisable to secure the vote or consent of shareholders required by the WBCL
to approve the Merger, unless the Board of Directors of Seller shall have
determined in good faith based on advice of counsel that such actions would
violate its fiduciary duty to Seller's Shareholders.
SECTION 6.3 Appropriate Action; Consents; Filings. Seller and the Company
shall use all reasonable efforts to (i) take, or cause to be taken, all
appropriate action, and do, or cause to be done, all things necessary, proper or
advisable under applicable Law to consummate and make effective the transactions
contemplated by this Agreement, (ii) obtain all consents, licenses, permits,
waivers, approvals, authorizations or orders required under Law (including,
without limitation, all foreign and domestic (federal, state and local)
governmental and regulatory rulings and approvals and parties to contracts)
required in connection with the authorization, execution and delivery of this
Agreement and the consummation by them of the transactions contemplated hereby,
including, without limitation, the Merger, (iii) make all necessary filings, and
thereafter make any other required submissions, with respect to this Agreement,
the Merger required under (A) the Securities Act and the Exchange Act and the
rules and regulations thereunder, and any other applicable federal or state
securities laws, (B) the BHCA, the WBL and any other applicable federal or state
banking laws and (C) any other applicable Law; provided that, the Company and
Seller shall cooperate with each other in connection with the making of all such
filings, including providing copies of all such documents to the non-filing
party and its advisors prior to filing and, if requested, to accept all
reasonable additions, deletions or changes suggested in connection therewith.
Seller and the Company shall furnish all information required for any
application or other filing to be made pursuant to the rules and regulations of
any applicable Law (including all information required to be included in the
Proxy Statement/Prospectus and the Registration Statement) in connection with
the transactions contemplated by this Agreement. In case at any time after the
Effective Time any further action is necessary or desirable to carry out the
purposes of this Agreement, the proper officers and directors of each party to
this Agreement shall use all reasonable efforts to take all such necessary
action.
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SECTION 6.4 Employee Stock Options and Other Employee Benefit Matters. Annex
B hereto sets forth certain agreements with respect to Seller's employee stock
options and other employee benefit matters.
SECTION 6.5 Directors' and Officers' Indemnification and Insurance.
(a) In the event of any threatened or actual claim, action, suit,
proceeding or investigation, whether civil, criminal or administrative,
including, without limitation, any such claim, action, suit, proceeding or
investigation in which any person who is now, or has been at any time prior to
the date of this Agreement, or who becomes prior to the Effective Time, a
director, officer or employee of the Seller or any of its Subsidiaries
(including in his/her role as a fiduciary of the employee benefit plans of the
Seller, if applicable) (the "Indemnified Parties") is, or is threatened to be,
made a party based in whole or in part on, or arising in whole or in part out
of, or pertaining to (i) the fact that he is or was a director, officer or
employee of the Seller, any of the Seller Subsidiaries or any of their
respective predecessors or (ii) this Agreement or any of the transactions
contemplated hereby, whether in any case asserted or arising before or after
the Effective Time, the parties hereto agree to cooperate and use their best
efforts to defend against and respond thereto. It is understood and agreed
that after the Effective Time, Company shall indemnify and hold harmless, to
the fullest extent permitted by law, each such Indemnified Party against any
losses, claims, damages, liabilities, costs, expenses (including reasonable
attorney's fees and expenses in advance of the final disposition of any claim,
suit, proceeding or investigation to each Indemnified Party to the fullest
extent permitted by law upon receipt of any undertaking required by applicable
law), judgments, fines and amounts paid in settlement in connection with any
such threatened or actual claim, action, suit, proceeding or investigation,
and in the event of any such threatened or actual claim, action, suit,
proceeding or investigation (whether asserted or arising before or after the
Effective Time), the Indemnified Parties may retain counsel satisfactory to
them after consultation with Company; provided, however, that the (1) Company
shall have the right to assume the defense thereof and upon such assumption
Company shall not be liable to any Indemnified Party for any legal expenses of
other counsel or any other expenses subsequently incurred by any Indemnified
Party in connection with the defense thereof, except that if Company elects
not to assume such defense or counsel for the Indemnified Parties reasonably
advises that there are issues which raise conflicts of interest between
Company and the Indemnified Parties, the Indemnified Parties may retain
counsel satisfactory to them after consultation with Company, and Company
shall pay the reasonable fees and expenses of such counsel for the Indemnified
Parties, (2) Company shall in all cases be obligated pursuant to this
paragraph to pay for only one firm of counsel for all Indemnified Parties, (3)
Company shall not be liable for any settlement effected without its prior
written consent (which consent shall not be unreasonably withheld) and (4)
Company shall have no obligation hereunder to any Indemnified Party when and
if a court of competent jurisdiction shall ultimately determine, and such
determination shall have become final and nonappealable; that indemnification
of such Indemnified Party in the manner contemplated hereby is
41
prohibited by applicable law. Any Indemnified Party wishing to claim
indemnification under this Section 6.5, upon learning of any such claim,
action, suit, proceeding or investigation, shall promptly notify Company
thereof, provided that the failure to so notify shall not affect the
obligations of Company under this Section 6.5 except to the extent such
failure to notify materially prejudices Company. Company's obligations under
this Section 6.5 shall continue in full force and effect for a period of six
(6) years from the Effective Time; provided, however, that all rights to
indemnification in respect of any claim (a "Claim") asserted or made within
such period shall continue until the final disposition of such Claim.
(b) Prior to the Effective Time the Seller shall purchase, and for a
period of six (6) years after the Effective Time, Company shall use its best
efforts to maintain, directors and officers liability insurance "tail" or
"runoff" coverage with respect to wrongful acts and/or omissions committed or
allegedly committed prior to the Effective Time. Such coverage shall have an
aggregate coverage limit over the term of such policy in an amount no less
than the annual aggregate coverage limit under the Seller's existing directors
and officers liability policy, and in all other respects shall be at least
comparable to such existing policy provided, however, that in no event shall
Company be required to expend on an annual basis more than 200% of the current
amount expended by the Seller (the "Insurance Amount") to maintain or procure
insurance coverage, and further provided that if Company is unable to maintain
or obtain the insurance called for by this Section 6.5 Company shall use all
reasonable efforts to obtain as much comparable insurance as available for the
Insurance Amount.
(c) In the event Company or the Surviving Corporation or any of its
successors or assigns (i) consolidates with or merges into any other person
and shall not be the continuing or surviving corporation or entity of such
consolidation or merger, or (ii) transfers or conveys all or substantially all
of its properties and assets to any person, then, and in each such case,
proper provision shall be made so that the successors and assigns of Company
or the Surviving Corporation, as the case may be, assume the obligations set
forth in this section.
(d) The provisions of this Section 6.5 are intended to be for the
benefit of, and shall be enforceable by, each Indemnified Party and his or her
heirs and representatives.
SECTION 6.6 Notification of Certain Matters. Seller shall give prompt notice
to the Company, and the Company shall give prompt notice to Seller, of (i) the
occurrence, or non-occurrence, of any event the occurrence, or non-occurrence,
of which would be likely to cause any representation or warranty contained in
this Agreement to be untrue or inaccurate and (ii) any failure of Seller or the
Company, as the case may be, to comply with or satisfy any covenant, condition
or agreement to be complied with or satisfied by it hereunder; provided,
however, that the delivery of any notice pursuant to this Section 6.6 shall not
limit or otherwise affect the remedies available hereunder to the party
receiving such notice.
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SECTION 6.7 Public Announcements. The Company and Seller shall consult with
each other before issuing any press release or otherwise making any public
statements with respect to the Merger and shall not issue any such press release
or make any such public statement prior to such consultation, except as may be
required by Law or any listing agreement with the National Association of
Securities Dealers, Inc.
SECTION 6.8 Customer Retention. To the extent permitted by law or applicable
regulation, Seller shall use all reasonable efforts to assist the Company in its
efforts to retain Seller's customers for the surviving corporation. Such
efforts shall include making introductions of the Company's employees to such
customers, assisting in the mailing of information prepared by the Company and
reasonably acceptable to Seller, to such customers and actively participating in
any "transitional marketing programs" as the Company shall reasonably request.
SECTION 6.9 Data Services Conversion. The Company, at the Company's expense
(including Seller's costs of terminating any of Seller's data processing
contracts, labor costs, equipment purchases and any related write-offs) shall
use all reasonable efforts to complete the Data Processing Conversion as soon as
practicable after the date of this Agreement. The Seller and the Company agree
to negotiate in good faith to enter into a data processing services contract
with terms and conditions and costs to the Seller, no less favorable to Seller
than Seller's current data processing services contracts. The Company shall be
responsible to provide to Seller the appropriate consultants and employees
necessary to complete the Data Processing Conversion.
SECTION 6.10 Incentive Bonus Pool. Promptly following the execution and
delivery of this Agreement, Seller will establish a bonus pool equal to
$2,400,000 for employees of Seller (the "Bonus Pool"). The Bonus Pool will be
used to:
(1) incent Seller's employees to retain Seller's customers;
(2) incent Seller's employees to attain net income targets; and
(3) retain key Seller employees during the period prior to the Effective
Time.
The Bonus Pool will be administered by a committee of three persons: Xxxxxx X.
Xxxxxxx, President of the Company, Xxxxxxx X. Xxxxxx, Executive Vice President
of Seller, and Xxxxxx X. Xxxxxxxx, President of the Seller, or other Seller
employees reasonably acceptable to the Company. The committee will designate
participants, set targets and do all other things necessary to administer the
Bonus Pool. The committee shall act by the decision of the majority of its
members.
SECTION 6.11. Seller Share Purchases. To the extent permitted by law, (a)
before the close of business on the last day of the Valuation Period, Seller
shall purchase and retain as treasury shares that number of shares of Seller
Common Stock equal to the number of shares of Seller Common Stock, if any,
issued pursuant to Seller stock options exercised or otherwise settled between
the date hereof and the last day of the Valuation Period, and (b) before the
Effective Time, Seller shall purchase and retain as treasury shares that number
of shares of Seller
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Common Stock equal to the number of shares of Seller Common stock, if any,
issued pursuant to Seller stock options exercised or otherwise settled after the
last day of the Valuation Period and on or before the Effective Time. Seller
shall not be in breach of its obligations with respect to this Section 6.11 if
it purchases a de minimus amount of Seller Common Stock in excess of the amount
required to be purchased.
ARTICLE VII - CONDITIONS OF MERGER
SECTION 7.1 Conditions to Obligation of Each Party to Effect the Merger. The
respective obligations of each party to effect the Merger shall be subject to
the satisfaction at or prior to the Effective Time of the following conditions:
(a) Effectiveness of the Registration Statement. The Registration
Statement shall have been declared effective by the SEC under the Securities
Act. No stop order suspending the effectiveness of the Registration Statement
shall have been issued by the SEC and no proceedings for that purpose shall,
on or prior to the Effective Time, have been initiated or, to the knowledge of
the Company or Seller, threatened by the SEC.
(b) Shareholder Approval. This Agreement and the Merger shall have been
approved and adopted by the requisite vote of the shareholders of Seller.
(c) Federal Reserve Board. The Merger shall have been approved by the
Federal Reserve Board, which approval shall not contain any materially
burdensome condition that would significantly adversely affect the Company,
all conditions required to be satisfied prior to the Effective Time imposed by
the terms of such approval shall have been satisfied and all waiting periods
relating to such approval shall have expired.
(d) DFI. The Merger and the Bank Merger shall have been approved by
DFI, which approval shall not contain any materially burdensome condition that
would significantly adversely affect the Company, all conditions required to
be satisfied prior to the Effective Time imposed by the terms of such
approvals shall have been satisfied and all waiting periods relating to such
approval shall have expired.
(e) No Order. No federal or state governmental or regulatory authority
or other agency or commission, or federal or state court of competent
jurisdiction, shall have enacted, issued, promulgated, enforced or entered any
statute, rule, regulation, executive order, decree, injunction or other order
(whether temporary, preliminary or permanent) which is in effect restricting,
preventing or prohibiting consummation of the transactions contemplated by
this Agreement.
SECTION 7.2 Additional Conditions to Obligations of the Company. The
obligations of the Company to effect the Merger are also subject to the
following conditions:
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(a) Representations and Warranties. Each of the representations and
warranties of Seller contained in this Agreement, without giving effect to any
update to the Seller Disclosure Schedule or notice to the Company under
Section 4.5 or 6.7, shall be true and correct in all respects as of the date
of this Agreement and (except to the extent such representations and
warranties speak as of an earlier date) as of the Effective Time as though
made on and as of the Effective Time; provided, however, that for purposes of
determining the satisfaction of the condition contained in this clause, no
effect shall be given to any exception in such representations and warranties
relating to materiality or a Material Adverse Effect, and provided, further,
however, that, for purposes of this clause, such representations and
warranties shall be deemed to be true and correct in all material respects
unless the failure or failures of such representations and warranties to be so
true and correct, individually or in the aggregate, represent a Material
Adverse Effect on the Seller. Company shall have received a certificate
signed on behalf of the Seller by the Chief Executive Officer and the Chief
Financial Officer of the Seller to the foregoing effect.
(b) Agreements and Covenants. The Seller shall have performed or
complied in all material respects with all agreements and covenants required
by this Agreement to be performed or complied with by it on or prior to the
Effective Time.
(c) Consents Obtained. All Seller Approvals and all filings required to
be made by Seller for the authorization, execution and delivery of this
Agreement and the consummation by it of the transactions contemplated hereby
shall have been obtained and made by Seller, except those for which failure to
obtain such Seller Approvals or make such filings would not individually or in
the aggregate, have a Material Adverse Effect on Seller and Seller
Subsidiaries, taken as a whole.
(d) No Challenge. There shall not be pending any action, proceeding or
investigation before any court or administrative agency or by a government
agency (i) challenging or seeking material damages in connection with, the
Merger or the conversion of Seller Common Stock into Company Common Stock
pursuant to the Merger or (ii) seeking to restrain, prohibit or limit the
exercise of full rights of ownership or operation by the Company or the
Company Subsidiaries of all or any portion of the business or assets of
Seller, which in either case is reasonably likely to have a Material Adverse
Effect on either Seller and the Seller Subsidiaries, taken as a whole, or the
Company and the Company Subsidiaries, taken as a whole.
(e) Tax Opinion. An opinion of Xxxxxxx & Xxxx, S.C., independent
counsel to the Company, dated as of the Effective Time, substantially to the
effect that on the basis of facts, representations and assumptions set forth
in such opinion which are consistent with the state of facts existing at the
Effective Time, the Merger and the Bank Merger will be treated for federal
income tax purposes as reorganizations within the meaning of Section 368(a) of
the Code, and accordingly that no gain or loss will be recognized by Seller or
the Bank as a result of the Merger and the Bank Merger, respectively. In
rendering such opinion, Xxxxxxx & Xxxx may require and rely upon
representations and
45
covenants contained in certificates of officers of the Company, the Bank,
Seller, the Seller's Bank, and others.
(f) Comfort Letters. The Company shall have received from KPMG Peat
Marwick, LLP the "comfort" letters referred to in Section 4.3.
(g) No Material Adverse Changes. Since the date of the Agreement, there
has not been any change in the financial condition, results of operations or
business of the Seller and the Seller Subsidiaries, taken as a whole, that
either individually or in the aggregate would have a Material Adverse Effect
on the Seller and the Seller Subsidiaries taken as a whole. The Company shall
have received a certificate of the President and the Chief Financial Officer
of the Seller to that effect.
SECTION 7.3 Additional Conditions to Obligations of Seller. The obligation
of Seller to effect the Merger is also subject to the following conditions:
(a) Representations and Warranties. Each of the representations and
warranties of the Company set forth in this Agreement, without giving effect
to any notice to Seller under Section 5.4 or 6.6, shall be true and correct in
all respects as of the date of this Agreement and (except to the extent such
representations and warranties speak as of an earlier date) as of the
Effective Time, as though made on and as of the Effective Time; provided,
however, that for purposes of determining the satisfaction of the condition
contained in this clause, no effect shall be given to any exception in such
representations and warranties relating to materiality or a Material Adverse
Effect, and provided, further, however, that, for purposes of this clause,
such representations and warranties shall be deemed to be true and correct in
all material respects unless the failure or failures of such representations
and warranties to be so true and correct, individually or in the aggregate,
represent a Material Adverse Effect on the Company. The Seller shall have
received a certificate signed on behalf of the Company by the Chief Executive
Officer and the Chief Financial Officer of the Company to the foregoing
effect.
(b) Agreements and Covenants. The Company shall have performed or
complied in all material respects with all agreements and covenants required
by this Agreement to be performed or complied with by it on or prior to the
Effective Time.
(c) Consents Under Agreements. All consents, waivers, approvals,
authorizations or orders required to be obtained, and all filings required to
be made by the Company for the authorizations, execution and delivery of this
Agreement and the consummation by it of the transactions contemplated hereby
shall have been obtained and made by the Company, except where failure to
obtain any consents, waivers, approvals, authorizations or orders required to
be obtained or any filings required to be made would not have a Material
Adverse Effect on the Company and the Company Subsidiaries, taken as a whole.
46
(d) Federal Tax Opinion. The Seller shall have received an opinion of
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, in form and substance reasonably
satisfactory to the Seller, dated as of the Effective Time, substantially to
the effect that on the basis of facts, representations and assumptions set
forth in such opinion which are consistent with the state of facts existing at
the Effective Time, the Merger will be treated as a reorganization within the
meaning of Section 368(a) of the Code, and that, accordingly, for federal
income tax purposes:
(i) No gain or loss will be recognized by the Seller as a result of
the Merger;
(ii) No gain or loss will be recognized by the shareholders of the
Seller who exchange all of their Seller Common Stock solely for Company
Common Stock pursuant to the Merger (except with respect to cash received
in lieu of a fractional share interest in Company Common Stock); and
(iii) The aggregate tax basis of the Company Common Stock received
by shareholders who exchange all of their Seller Common Stock solely for
Company Common Stock pursuant to the Merger will be the same as the
aggregate tax basis of the Seller Common Stock surrendered in exchange
therefor (reduced by any amount allocable to a fractional share interest
for which cash is received).
In rendering such opinion, the Seller's Counsel may require and rely upon
representations and covenants contained in certificates of officers of
Company, the Bank, the Seller, the Seller's Bank and others.
ARTICLE VIII - INDUCEMENT
SECTION 8.1 Inducement.
(a) As a condition and inducement to the Company's willingness to enter into
and perform its obligations under this Agreement, unless a Nullifying Event (as
such term is defined below) shall have occurred and be continuing at the time
the Agreement is terminated, in the event that (i) this Agreement is terminated
pursuant to Article IX hereof (regardless of whether such termination is by
Company or Seller), (ii) prior to or concurrently with such termination a
Trigger Event (as such term is defined below) shall have occurred, and (iii)
prior to, concurrently with or within 18 months after such termination an
Acquisition Event (as such term is defined below) shall have occurred, Seller
shall pay to Company a cash fee of $30 million. Such fee shall be payable in
immediately available funds on or before the second business day following the
Acquisition Event. In addition, in the event that (i) this Agreement is
terminated pursuant to Article IX hereof (regardless of whether such termination
is by the Company or Seller) and (ii) a Trigger Event has occurred, Seller shall
pay to the Company its reasonable out-of-pocket expenses related to this
transaction in an aggregate amount not to exceed $2,500,000 in
47
immediately available funds on or before the second business day following such
termination of this Agreement.
(b) As used herein, a "Trigger Event" shall mean the occurrence of any of
the following events:
(i) Seller's Board of Directors shall have failed to approve or recommend
this Agreement or the Merger or shall have withdrawn or modified in a manner
adverse to the Company its approval or recommendation of this Agreement or the
Merger, or shall refuse to reaffirm its approval or recommendation upon the
Company's reasonable request, or shall have resolved or publicly announced an
intention to do any of the foregoing;
(ii) Seller or any Significant Subsidiary (as such term is defined
below), or the Board of Directors of Seller or a Significant Subsidiary, shall
have recommended to the stockholders of Seller any Acquisition Proposal (as
such term is defined below) or shall have entered into an agreement with
respect to, or authorized, approved, proposed or publicly announced its
intention to enter into, any Acquisition Proposal;
(iii) this Agreement or the Merger shall not have been approved at a
meeting of Seller stockholders which has been held for that purpose prior to
termination of this Agreement in accordance with its terms, if prior thereto
it shall have been publicly announced that any person (other than the Company
or any Company Subsidiary) shall have made, or disclosed an intention to make,
an Acquisition Proposal;
(iv) any person (together with its affiliates and associates) or group
(as such terms are used for purposes of Section 13(d) of the Exchange Act)
(other than the Company and the Company Subsidiaries) shall have acquired
beneficial ownership (as such term is used for purposes of Section 13(d) of
the Exchange Act) or the right to acquire beneficial ownership of 20% or more
of the then outstanding shares of the stock then entitled to vote generally in
the election of directors of Seller or any Significant Subsidiary; or
(v) following the making of an Acquisition Proposal, Seller shall have
willfully breached any covenant or agreement contained in this Agreement such
that Company would be entitled to terminate this Agreement under Section
9.1(a)(ii) (without regard to any grace period provided for therein) unless
such breach is promptly cured without jeopardizing consummation of the Merger
pursuant to the terms of this Agreement.
(c) As used herein, "Acquisition Event" shall mean the consummation of any
event described in clauses (A), (B) or (C) in the definition of "Acquisition
Proposal," except that the percentage reference contained in clause (C) of such
definition shall be 50% instead of 20%.
(d) As used herein, "Acquisition Proposal" shall mean any (i) publicly
announced proposal, (ii) regulatory application or notice (whether in draft or
final form), (iii) agreement or understanding, (iv) disclosure of an intention
to make a proposal, or (v) amendment to any of the
48
foregoing, made or filed on or after the date hereof, in each case with respect
to any of the following transactions with a counterparty other than the Company
or any Company Subsidiary: (A) a merger or consolidation, or any similar
transaction, involving Seller or any Significant Subsidiary (other than mergers,
consolidations, or any similar transactions involving solely Seller and/or one
or more wholly owned Subsidiaries of Seller and other than a merger or
consolidation as to which the common shareholders of Seller immediately prior
thereto in the aggregate own at least 70% of the common stock of the publicly
held surviving or successor corporation (or any publicly held ultimate parent
company thereof) immediately following consummation thereof); (B) a purchase,
lease or other acquisition of all or substantially all of the assets or deposits
of Seller or any Significant Subsidiary; or (C) a purchase or other acquisition
(including by way of merger, consolidation, share exchange or otherwise) of
securities representing 20% or more of the voting power of Seller or any
Significant Subsidiary.
(e) As used herein, "Nullifying Event" shall mean any of the following events
occurring and continuing at a time when Seller is not in material breach of any
of its covenants or agreements contained in the Agreement; (i) the Company shall
be in breach of any of its covenants or agreements contained in the Agreement
such that Seller shall be entitled to terminate the Agreement pursuant to
Section 9.1(iii) (without regard to any grace period provided for therein), or
(ii) the Board of Directors of the Company shall have failed to approve or
recommend the Merger or the transactions contemplated hereby or shall have
withdrawn, modified or changed in any manner adverse to Seller its approval or
recommendation of the Merger or the transactions contemplated hereby or shall
have resolved or publicly announced its intention to do any of the foregoing.
(f) As used herein, "Significant Subsidiary" shall mean a "significant
subsidiary," of Seller as defined in Rule 1-02 of Regulation S-X promulgated by
the Securities and Exchange Commission.
ARTICLE IX - TERMINATION, AMENDMENT AND WAIVER
SECTION 9.1 Termination.
(a) This Agreement may be terminated at any time prior to the Effective
Time, whether before or after approval of the matters presented in connection
with the Merger by the shareholders of Seller:
(i) by mutual consent of the Company and Seller by a vote of a
majority of the members of the entire Board of Directors;
(ii) by either Company or Seller if any approval of the
stockholders of the Seller required for the consummation of the Merger
shall not have been obtained by reason of the failure to obtain the
required vote at a duly held meeting of such stockholders or at any
adjournment or postponement thereof;
49
(iii) by Seller or the Company (A) if there has been a breach in any
material respect (except that where any statement in a representation or
warranty expressly includes a standard of materiality, such statement
shall have been breached in any respect) of any representation, warranty,
covenant or agreement on the part of Seller, on the one hand, or the
Company, on the other hand, set forth in this Agreement, or (B) if any
representation or warranty of Seller, on the one hand, or the Company, on
the other hand, shall be discovered to have become untrue in any material
respect (except that where any statement in a representation or warranty
expressly includes a standard of materiality, such statement shall have
become untrue in any respect), in either case which breach or other
condition has not been cured within 30 business days following receipt by
the nonterminating party of notice of such breach or other condition, or
which breach by its nature, cannot be cured prior to Closing; provided,
however, neither party shall have the right to terminate this Agreement
pursuant to this Section 9.1(a)(iii) unless the breach of any
representation or warranty (but not breaches of covenants or agreements),
together with all other such breaches, would entitle the party receiving
such representation or warranty not to consummate the transactions
contemplated hereby under Section 7.2(a) (in the case of a breach of a
representation or warranty by the Seller) or Section 7.3(a) (in the case
of a breach of a representation or warranty by Company); and, provided
further this Agreement may not be terminated pursuant to this clause
(iii) by the breaching party or party making any representation or
warranty which shall have become untrue in any material respect;
(iv) by either the Company or Seller if any permanent injunction
preventing the consummation of the Merger shall have become final and
nonappealable;
(v) by either the Company or Seller if the Merger shall not have
been consummated by December 31, 1997, for a reason other than the
failure of the party seeking termination to comply with its obligations
under this Agreement; provided that if the Merger shall not have been
consummated by December 31, 1997 as a result of proceedings of a
governmental authority or litigation then the date on which either the
Company or the Seller may terminate this Agreement under this Section
9.1(a)(v) shall be extended to the earlier of (A) the elapse of a
reasonable period of time necessary to consummate the Merger following
the final termination of proceedings of a governmental authority or (B)
April 30, 1998;
(vi) by either the Company or Seller if the Federal Reserve Board
has denied approval of the Merger, and neither the Company nor Seller
has, within 30 days after the entry of such order denying approval, filed
a petition seeking review of such order as provided by applicable law; or
50
(vii) by the Seller, if both of the conditions in (A) and (B) below
exist on the day preceding the anticipated Effective Time and the Company
has not elected to cure such conditions as set forth in (D) below:
(A) the average of the daily closing price of a share of
Company Common Stock as reported on the consolidated tape of the
NASDAQ/NMS during the period of 10 trading days ending at the close
of the third trading day immediately preceding the Effective Time
(the "Company Average Price") is less than 80% of the average of the
final bid and asked price on 10 trading days ending on the day
immediately prior to signing; and
(B) the number obtained by dividing the Company Average Price
by the average closing price of Company Common Stock as reported on
the consolidated tape of the NASDAQ/NMS for the 10 trading days
immediately preceding the public announcement of this Agreement is
less than the number obtained by dividing the Final Index Price (as
defined below) by the Initial Index Price (as defined below) and
subtracting .15 from such quotient.
(C) For purposes of this Section 9.1(vii):
(1) The "Index Group" shall mean all of those companies
listed on Exhibit 9.1 the common stock of which is publicly
traded and as to which there is no pending publicly announced
proposal at any time during the period of 10 trading days
ending at the end of the third trading day immediately
preceding the Effective Time for such company to be acquired
or to acquire another company or with respect to any other
extraordinary transaction or event (other than any transaction
contemplated in Section 9.1(vii)(C)(4));
(2) The "Initial Index Price" shall mean the average of
the per share closing prices of the common stock of the
companies comprising the Index Group (weighted in accordance
with the weighting factor set forth on Exhibit 9.1), as
reported on the consolidated transactions reporting system for
the market or exchange on which such common stock is
principally traded, for the 10 trading days immediately
preceding the public announcement of this Agreement;
(3) The "Final Price" of any company belonging to the
Index Group shall mean the average of the daily closing sale
prices of a share of common stock of such company, as reported
in the consolidated transaction reporting system for the
market or exchange on which such common stock is principally
traded,
51
during the period of 10 trading days ending at the end of
third trading day immediately preceding the Effective Time;
(4) The "Final Index Price" shall mean the average of
the Final Prices for all of the companies comprising the Index
Group. If the Company or any company belonging to the Index
Group declares a stock dividend or effects a reclassification,
recapitalization, split-up, combination, exchange of shares or
similar transaction between the date of this Agreement and the
Effective Time, the closing prices for the common stock of
such company shall be appropriately adjusted for the purposes
of the definitions above so as to be comparable to the closing
price on the date of this Agreement;
(D) The Company shall have the right, but not the obligation,
to increase the Stock Amount in a manner such that the conditions
set forth in either (A) or (B), above, shall be deemed not to exist.
For purposes hereof, the condition set forth in (A) above shall be
deemed not to exist if the Stock Amount is increased so that the
Stock Amount (as increased) multiplied by the Valuation Period
Market Value is not less than $375,971,980 (i.e. $31.20 multiplied
by the initial Stock Amount). For purpose hereof, the condition set
forth in (B), above, shall be deemed not to exist if the Stock
Amount is increased in an amount such that if the Company Average
Price (for purposes of (B), above) were equal to the Company Average
Price (as previously calculated) plus the Adjustment Amount (as
defined below), the condition set forth in (B) above would not
exist. The Adjustment Amount shall equal (x) the product of the
Company Average Price (as previously calculated) and the number of
shares by which the Stock Amount is increased, divided by (y) the
Stock Amount (prior to such increase).
SECTION 9.2 Effect of Termination. In the event of the termination of this
Agreement pursuant to Section 9.1, this Agreement shall forthwith become void
and all rights and obligations of any party hereto shall cease except: (i) as
set forth in Section 10.1 of this Agreement and (ii) nothing herein shall
relieve any party from liability for any willful breach of this Agreement or
shall restrict either party's rights in the case thereof.
SECTION 9.3 Amendment. This Agreement may be amended by the parties hereto
by action taken by or on behalf of their respective Boards of Directors at any
time prior to the Effective Time; provided, however, that, after approval of the
Merger by the shareholders of Seller, no amendment may be made, without further
approval of such shareholders which would reduce the amount or change the type
of consideration into which each share of Seller Common Stock shall be converted
pursuant to this Agreement upon consummation of the Merger. This Agreement may
not be amended except by an instrument in writing signed by the parties hereto.
52
SECTION 9.4 Waiver. At any time prior to the Effective Time, the parties
hereto may (a) extend the time for the performance of any of the obligations or
other acts of the other party hereto, (b) waive any inaccuracies in the
representations and warranties contained herein or in any document delivered
pursuant hereto and (c) waive compliance with any of the agreements or
conditions contained herein. Any such extension or waiver shall be valid only
if set forth in a written instrument signed on behalf of such party, but such
extension or waiver or failure to insist on strict compliance with an
obligation, covenant, agreement or condition shall not operate as a waiver of,
or estoppel with respect to, any subsequent or other failure.
ARTICLE X - GENERAL PROVISIONS
SECTION 10.1 Non-Survival of Representations, Warranties and Agreements. The
representations, warranties and agreements in this Agreement shall terminate at
the Effective Time or upon the termination of this Agreement pursuant to Article
VIII, except that the agreements set forth in Article I and Sections 6.4 and 6.5
shall survive the Effective Time and those set forth in Sections 4.4(b), 4.7,
5.3(b), 8.1 and Article X hereof shall survive termination indefinitely.
SECTION 10.2 Enforcement of Agreement. The parties hereto agree that
irreparable damage would occur in the event that the provisions contained in the
last sentence of each of Sections 4.4(b) and 5.3(b) and Section 6.5 of this
Agreement were not performed in accordance with its specific terms or were
otherwise breached. It is accordingly agreed that the parties shall be entitled
to an injunction or injunctions to prevent breaches of the last sentence of
Section 4.4(b), and of Section 5.3(b) and Section 6.5 of this Agreement and to
enforce specifically the terms and provisions thereof in any court of the United
States or any state having jurisdiction, this being in addition to any other
remedy to which they are entitled at law or in equity.
SECTION 10.3 Notices. All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed given if delivered
personally, telecopied (with confirmation), mailed by registered or certified
mail (postage prepaid, 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) and shall be effective upon receipt:
(a) If to the Company:
Xxxxxxxx & Xxxxxx Corporation
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Telecopier: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxxxxxx
53
With a copy to:
Xxxxxxx & Xxxx, S.C.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Telecopier: (000) 000-0000
Attention: Xxxxxxx X. Xxxx
(b) If to Seller:
Security Capital Corporation
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Telecopier: (000) 000-0000
Attention: Xxxxx X. Xxxxx
With a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier: (000) 000-0000
Attention: Xxxx X. Xxxxx III, Esq.
SECTION 10.4 Certain Definitions. For purposes of this Agreement, the term:
(a) "affiliate" means a person that directly or indirectly, through one
or more intermediaries, controls, is controlled by, or is under common control
with, the first mentioned person; including, without limitation, any
partnership or joint venture in which any person (either alone, or through or
together with any other subsidiary) has, directly or indirectly, an interest
of 5% or more;
(b) "beneficial owner," with respect to any Shares, means a person who
shall be deemed to be the beneficial owner of such Shares (i) which such
person or any of its affiliates or associates beneficially owns, directly or
indirectly, (ii) which such person or any of its affiliates or associates (as
such term is defined in Rule 12b-2 of the Exchange Act) has, directly or
indirectly, (A) the right to acquire (whether such right is exercisable
immediately or subject only to the passage of time), pursuant to any
agreement, arrangement or understanding or upon the exercise of consideration
rights, exchange rights, warrants or options, or otherwise, or (B) the right
to vote pursuant to any agreement, arrangement or understanding, (iii) which
are beneficially owned, directly or indirectly, by any other persons with whom
such person or any of its affiliates or associates has any agreement,
arrangement or understanding for the purpose of acquiring, holding, voting or
disposing of any Shares or (iv) pursuant to Section 13(d) of the Exchange Act
and any rules or regulations promulgated thereunder;
54
(c) "business day" means any day other than a day on which banks in
Wisconsin are required or authorized to be closed;
(d) "control" (including the terms "controlled by" and "under common
control with") means the possession, directly or indirectly or as trustee or
executor, of the power to direct or cause the direction of the management or
policies of a person, whether through the ownership of stock or as trustee or
executor, by contract or credit arrangement or otherwise;
(e) "person" means an individual, corporation, partnership, association,
trust, unincorporated organization, other entity or group (as defined in
Section 13(d) of the Exchange Act); and
(f) "subsidiary" or "subsidiaries" of Seller, the Company, the Surviving
Corporation, or any other person, means any corporation, partnership, joint
venture or other legal entity of which Seller, the Company, the Surviving
Corporation or such other person, as the case may be (either alone or through
or together with any other subsidiary), owns, directly or indirectly, 50% or
more of the stock or other equity interests the holders of which are generally
entitled to vote for the election of the board of directors or other governing
body of such corporation or other legal entity.
SECTION 10.5 Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
SECTION 10.6 Severability. If any term or other provision of this Agreement
is invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner adverse to
any party. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in an acceptable manner to the end that
transactions contemplated hereby are fulfilled to the extent possible.
SECTION 10.7 Entire Agreement. This Agreement constitutes the entire
agreement of the parties and supersedes all prior agreements and undertakings,
other than the confidentiality agreement, both written and oral, between the
parties, or any of them, with respect to the subject matter hereof and, except
as otherwise expressly provided herein, are not intended to confer upon any
other person any rights or remedies hereunder.
SECTION 10.8 Assignment. This Agreement shall not be assigned by operation
of law or otherwise, except that the Company may assign all or any of its rights
hereunder and thereunder to any affiliate provided that no such assignment shall
relieve the assigning party of its obligations hereunder.
55
SECTION 10.9 Parties in Interest. This Agreement (including Annex B hereto)
shall be binding upon and inure solely to the benefit of each party hereto, and
nothing in this Agreement, express or implied, is intended to or shall confer
upon any other person any right, benefit or remedy of any nature whatsoever
under or by reason of this Agreement, other than (i) Section 6.5 (which is
intended to be for the benefit of the Indemnified Parties and may be enforced by
such Indemnified Parties) and (ii) Section 5.7, Section 6.4 and Annex B (which
are intended to be for the benefit of the directors, officers and employees of
the Seller and the Seller Subsidiaries and may be enforced by such persons).
SECTION 10.10 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Wisconsin, regardless of
the laws that might otherwise govern under applicable principles of conflicts of
law.
SECTION 10.11 Counterparts. This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts, each
of which when executed shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
56
IN WITNESS WHEREOF, the Company and Seller have caused this Agreement to be
executed as of the date first written above by their respective officers
thereunto duly authorized.
SECURITY CAPITAL CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx, Xx.
-------------------------------------
Xxxxxxx X. Xxxxxxx, Xx.
President and Chief Executive Officer
XXXXXXXX & XXXXXX CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Xxxxx X. Xxxxxxx
Chairman of the Board and Chief
Executive Officer
57
ANNEX B
-------
EMPLOYEE BENEFIT MATTERS
------------------------
1. Conduct of Business Between Date of Signing the Agreement and the
Effective Time. Between the date of signing of the Agreement and the
Effective Time (i) there will be no increases in base salary for the employees
of Seller or Seller Subsidiaries who have Employment Agreements; (ii) other
employees may receive increases in base salary and bonuses in the ordinary
course of business consistent with past practice, subject to Paragraph 14
hereof; (iii) no new programs or agreements providing compensation for
employees or directors will be adopted, existing programs or agreements will
not be amended or modified except as provided herein or in Agreements executed
by employees and/or directors in connection herewith, and no further grants or
awards will be made under existing programs or agreements except as explicitly
provided herein; (iv) no new employment agreements will be granted and the
existing Employment Agreements will not be amended except as provided herein
or in the Agreements executed by employees contemporaneously herewith; (v) no
new elections may be made to defer compensation for fiscal 1998; (vi) Seller
contributions to its 401(k) plan will not be in excess of a percentage level
consistent with prior Seller contributions; and (vii) Seller or Seller
Subsidiaries will only pay severance to those employees who are terminated by
their employer and then only in amounts and for a period consistent with past
practice of the employer.
2. General.
(a) Those individuals who are employed by the Seller and the Seller
Subsidiaries as of the Effective Time and who remain, at the Company's
discretion, employees of the Company or its subsidiaries following the
Effective Time shall be referred to hereinafter as "Affected Employees".
(b) The Company will give Affected Employees full credit for their
prior service with the Seller or the Seller Subsidiaries or any subsidiary of
the Seller or the Seller Subsidiaries (i) for purposes of eligibility and
vesting under any qualified or nonqualified retirement or profit sharing plans
or vacation plans or arrangements maintained by the Company and (ii) for
purposes of eligibility under any welfare benefit plans maintained by the
Company. Notwithstanding anything contained in this Annex or the Merger
Agreement to the contrary, for purposes of the Company's retiree health plan,
Affected Employees will be given access to the retiree health plan if they
meet the eligibility criteria for the plan, but the cost of health insurance
under the plan will be borne 100% by the Affected Employees with no subsidy by
the Company.
B-1
(c) The Company will, or will cause the Seller or the Seller
Subsidiaries to, waive all limitations as to preexisting conditions and waiting
periods with respect to participation and coverage requirements applicable to
the Affected Employees under any welfare benefit plans that such employees may
be eligible to participate in after the Effective Time, other than limitations
or waiting periods that are already in effect with respect to such employees and
that have not been satisfied as of the Effective Time under any welfare plan
maintained for the Affected Employees immediately prior to the Effective Time.
3. Pension Plan and 401(k) Plan. Seller's qualified pension plan will be
frozen on December 31, 1997 with full vesting as of the Effective Time and may
be terminated at the discretion of the Company. Accounts in the 401(k) plan of
participants who are employed at the Effective Time by the Seller or Seller
Subsidiaries will be fully vested as of the Effective Time. The Company reserves
the right thereafter to merge or terminate the 401(k) plan.
4. Merger as Change in Control. The Merger will constitute a change in
control for the purposes of all qualified and non-qualified plans and employment
agreements of Seller and Seller Subsidiaries, including, but not limited to, the
Seller's Change in Control Severance Plan hereinafter described.
5. Employment Agreements. The Employment Agreements for six executives of
the Seller are being contemporaneously amended by execution of Agreements
between the Executive, Seller, Seller's bank subsidiary and the Company in the
form attached to the Merger Agreement. An Employment Agreement with one (1)
officer containing the provisions described above will be reinstated with a term
ending on December 31, 1997.
6. Employee Benefits. Except as provided in Paragraphs 7, 12 and 17 hereof,
Affected Employees will be integrated into the welfare and employee benefit
plans of the Company, including health, dental, group term life insurance,
tuition reimbursement, long-term disability and qualified employee benefit
plans, as of January 1, 1998. Seller's welfare benefit plans shall continue in
force until December 31, 1997. Company reserves the right, at any time and from
time to time, to modify or amend, in whole or in part, any or all provisions of
such plans, except to the extent otherwise provided in this Annex.
7. Severance Plan. The Seller's Change in Control Severance Plan (a) will
govern terminations of employment which occur within two years following the
Effective Time (as modified in this Paragraph 7), except for (i) employees who
have in effect an Employment Agreement discussed in Section 5 of this Annex B
and (ii) other employees of Seller or Seller Subsidiaries who have employment
agreements unless they waive all rights to compensation, profit percentages,
rights of first refusal and severance under those employment agreements and (b)
will contain provisions consistent with this Paragraph 7. In the case of an
employee of Seller or any Seller Subsidiary whose employment is terminated
between the eighteen-month and second anniversaries of the Effective Time, such
employee's entitlement to severance for a period under the grid
B-2
previously provided to the Company by the Seller and attached hereto will be
reduced by two months for every one month which elapses from the eighteen-month
anniversary of the Effective Time to the date of termination until the severance
period is reduced to that contained in the Company's severance plan for
comparable classes of employees. For example, if an employee would be entitled
to 24 months under the grid, if the employee were terminated in the nineteenth
month after the Effective Time, he would be entitled to 22 months of severance.
In all events, the amount, including the cost of benefits, to which each
terminated employee is entitled under Seller's severance plan will not exceed
the amount contained in the Change in Control Severance Benefits schedule
provided to Company by Seller dated March 7, 1997. Seller will provide a copy of
such schedule to the Company which contains the name of each employee. The
Seller's Change in Control Severance Plan will also be consistent with the
following: (i) severance is only payable if the Company terminates the employee
from his current position and does not offer him a position with comparable pay
and benefits at a location no greater than 25 miles from the location where he
is currently employed; (ii) the amount of severance is determined according to
the attached grid prepared by Seller ONLY IF the employee signs a complete and
permanent release of all claims arising out of his employment, including age
discrimination, and does not revoke the release within the statutory period for
revocation; (iii) health and dental continuation for the severance term will be
under COBRA, but for no shorter period than for the severance term; (iv) long-
term disability eligibility ends on date of termination of employment; (v) if
the employee obtains other employment, each severance payment is reduced by 50%,
except that if the new job is with the Company or an affiliate, severance stops
on the first day of employment; and (vi) severance pay does not count for
purposes of determining benefits under any other qualified or nonqualified
plans. After the expiration of Seller's Change in Control Severance Plan,
employees will be eligible to be considered under the Company's regular
severance plan. To the extent that Seller's Change in Control Severance Plan is
not consistent with the provisions hereof, it shall be amended by Seller's Board
no later than the Effective Time.
8. Rabbi Trusts. The rabbi trust which funds the Seller's SERP may be
amended to provide that upon a change in control, an obligation will be
triggered to (a) fund the trust at a level equal to at least 110% of accrued
pension benefits and (b) revalue the accrued pension benefits annually and
deposit the amount necessary to maintain funding at the 110% level. Also, the
Nonqualified Deferred Compensation Trust may be amended to provide that upon a
change in control, an obligation will be triggered to (a) fund the trust at a
level equal to at least 100% of accrued benefits and (b) revalue the accrued
benefits annually and deposit the amount necessary to maintain funding at the
100% level.
9. Deferred Compensation Plan for Officers. The Deferred Compensation Plan
for Officers and any similar deferred compensation arrangements shall be amended
(with the consent of participants given as of the time of execution of the
Merger Agreement) (a) to clarify that the excess ESOP allocation formula will
apply only to regular allocations made on the basis of compensation, and will
not apply to allocations based on account balances, as described in Paragraph
11(b)(iii) of this Annex B, (b) to provide for the
B-3
payment of that portion of a participant's benefits otherwise scheduled to be
made in 1997 on the earlier of the payment date otherwise elected by the
participant or the date which is one week prior to the scheduled Effective Time,
(c) to provide that no amendment (other than the amendments described in this
paragraph) may be made to the Deferred Compensation Plan for Officers or such
similar deferred compensation arrangements which would serve to accelerate the
payment of benefits or decrease the rate of interest under such plan or
arrangements, and (d) to clarify that, regardless of when the Effective Time
falls within the plan year, proportional allocation of the Company's matching
contribution under the Deferred Compensation Plan for Officers shall occur. In
addition, rules may be adopted and implemented under the Deferred Compensation
Plan for Officers or other similar deferred compensation arrangements which
authorize the Administrative Committee to allow each participant to make a new,
irrevocable election to confirm or deny such participant's previous election to
defer amounts in respect of calendar year 1997 which have not yet been earned
and payable. In addition, the Deferred Compensation Plan for Officers shall be
amended (with the consent of participants given as of the time of execution of
the Merger Agreement) to provide that (a) participants will be given an
election, with respect to the treatment of their stock accounts, which is the
same as the election being given to shareholders of the Seller pursuant to the
Merger Agreement; (b) to the extent necessary to conform to a participant's
election, any cash credited to the participant's account will be converted into
additional shares of stock of the Company based upon the trading price of said
stock; and (c) any cash credited to the participant's account pursuant to a cash
election will be credited thereafter with an interest rate equal to Xxxxx'x
Average Corporate Bond Yield Index.
10. Non-Employee Director Deferred Compensation Plan. Seller's Non-
Employee Director Deferred Compensation Plan may be amended (a) to provide for
the payment of that portion of a participant's benefit otherwise scheduled to be
made in 1997 on the earlier of the payment date otherwise elected by the
participant or the date which is one week prior to the scheduled Effective Time,
(b) to provide that no amendment (other than the amendments described in this
paragraph) may be made to the Non-Employee Director Deferred Compensation Plan
which would serve to accelerate the payment of benefits or decrease the rate of
interest under such plan and (c) to clarify that, regardless of when the
Effective Time falls within the plan year, proportional allocation of the
Company's matching contribution under the Non-Employee Director Deferred
Compensation Plan shall occur. In addition, rules may be adopted and implemented
under the Non-Employee Director Deferred Compensation Plan which authorize the
Administrative Committee to allow each participant to make a new, irrevocable
election to confirm or deny such participant's previous election to defer
amounts in respect of calendar year 1997 which have not yet been earned and
payable. In addition, the Non-Employee Director Deferred Compensation Plan shall
be amended (with the consent of participants given as of the time of the
execution of Merger Agreement) as described in the last sentence of paragraph 9
hereof.
B-4
11. ESOP. (a) As of the day (the "Contribution Date") immediately prior to
the Effective Time, the Seller shall make a contribution to the Seller's
Employee Stock Ownership Plan (the "ESOP") equal to the aggregate contribution
that would have been made pursuant to Section 5(b) of the ESOP in respect of the
then current Plan Year multiplied by a fraction (the "Fraction"), the numerator
of which is the number of days in the current Plan Year through and including
the Effective Time and the denominator of which is 365, and shall cause the
Trustee of the ESOP to use the full amount of such contribution promptly to
repay a portion of the outstanding ESOP indebtedness. As a result of the
aforementioned contribution and repayment, the Seller shall take such action as
may be necessary or appropriate to cause shares of the Seller's stock to be
released (as of the Contribution Date) from the suspense account maintained
under the ESOP and allocated (as of the Contribution Date) to the accounts of
each Participant (as defined in the ESOP) who would be entitled to an allocation
for the then current Plan Year if (i) the Contribution Date were an Anniversary
Date (as defined in the ESOP) and (ii) the 1,000 Hour of Service requirement set
forth in Section 4 of the ESOP were multiplied by the Fraction; such allocation
shall be effected in accordance with the ratio of (1) the Covered Compensation
(as defined in the ESOP) of such Participant for the portion of the Plan Year
through the end of the last payroll period commencing prior to the Contribution
Date to (2) the aggregate Covered Compensation through the end of the last
payroll period commencing prior to the Contribution Date of all Participants
entitled to such allocation.
(b) The Company and Seller agree to take such action as may be
necessary or appropriate:
(i) to cause the ESOP to terminate as of the Effective Time
and for all Account balances to become fully vested and nonforfeitable as
of such date;
(ii) to cause the Trustee of the ESOP to sell, from the suspense
account maintained under the ESOP, shares of stock of the Company with an
aggregate value equal to the remaining outstanding ESOP indebtedness, after
giving effect to the repayment described in paragraph (a) hereof, and to
use the proceeds of such sale to repay in full all such outstanding ESOP
indebtedness;
(iii) to cause those shares of stock of the Company (and any
cash) remaining in the suspense account maintained under the ESOP, after
giving effect to the aforementioned sale (the "Remaining Shares"), to be
allocated in the following manner: (A) that portion of the Remaining Shares
which, if allocated, would be treated as an "annual addition" within the
meaning of Section 415 of the Code (without regard to the limitations
thereof) shall be allocated among all Participants who were actively
employed by the Seller or Seller Subsidiaries as of January 1, 1997 in
proportion to the number of shares allocated to such Participants' ESOP
Accounts as of the Effective Time (or, in the case of a Participant whose
employment with the Seller and Seller Subsidiaries terminates between
January 1, 1997 through and including the day prior to the Effective
B-5
Time, the number of shares allocated to such Participant's ESOP Account as
of December 31, 1996). That portion of the Remaining Shares allocated under
this clause (A) which is in excess of a Participant's limitation under
Section 415(c) of the Code (the "Excess Allocations") shall be deemed to
have been allocated under a plan not qualified under Section 401(a) of the
Code, and such Excess Allocations shall not be subject to the provisions of
Section 401(a)(31) of the Code described in subparagraph (iv) hereof; and
(B) that portion of the Remaining Shares which, if allocated, would not be
treated as an "annual addition" within the meaning of Section 415(c) of the
Code shall be allocated among all Participants in proportion to the number
of shares allocated to such Participants' ESOP Accounts as of the Effective
Time (or, in the case of a Participant whose employment with the Seller and
Seller Subsidiaries terminates between January 1, 1997 through and
including the day prior to the Effective Time, the number of shares
allocated to such Participant's ESOP Account as of December 31, 1996),
without taking into account the allocations made under clause (A) above;
and
(iv) for the account balances of all Participants to be
distributed in a lump sum (or transferred in accordance with Section
401(a)(31) of the Code, except as provided in subparagraph (iii) above) as
soon as practicable following the later of (A) the Effective Time or (B)
the date of receipt of a favorable determination letter from the Internal
Revenue Service (the "Service") regarding the qualified status of the ESOP
upon its termination.
(c) As soon as practicable after the date hereof, the Seller shall file a
request for an advance determination letter from the Service regarding the
continued qualified status of the ESOP upon its termination, and the parties
hereby agree to cooperate fully in all matters pertaining to such filing
(including, but not limited to, making such changes to the ESOP and the proposed
allocations described herein as may be requested by the Service as a condition
to its issuance of a favorable determination letter). If, despite the Seller's
attempt to obtain such a favorable determination letter, the Service does not
permit all or any portion of the Remaining Shares to be allocated as of the
Effective Time as contemplated hereby, the parties hereby agree to take such
action as may be necessary to allocate the Remaining Shares (or amounts
attributable thereto) as rapidly as possible among participants in the ESOP in
such other manner as is consistent with meeting their respective fiduciary
duties under ERISA and with obtaining the Service's determination that the ESOP
retains its qualified status upon its termination; provided, however, that no
such action shall create any liability for the Company to make any contributions
to the ESOP or to provide any replacement benefits to Participants outside the
ESOP. In all events, it is the Company's intention that the participants in the
ESOP will receive the entire benefit of the Remaining Shares which are
unallocated after application of the above provisions.
12. SERP. Notwithstanding paragraph 6 hereof, the Seller's SERP will
continue in effect following the Effective Time for the benefit of the current
participants therein.
B-6
The Seller's SERP may be amended to provide that (a) in addition to any existing
restrictions on amendment and termination, the SERP shall not be terminated or
amended in any manner adverse to participants who are participants as of the
date hereof (b) a participant who retires at or after age 55 may elect to defer
the commencement of benefits under the SERP until age 62 so long as the present
value of the benefit at age 62 (discounted to any earlier age at the rate of 4%
per year) is not greater than the present value of such benefit at such earlier
age and (c) in calculating the benefits thereunder, any benefit enhancements
under Seller's qualified pension plan after the date hereof shall be
disregarded.
13. Non-Employee Director Retirement Plan. Seller's Non-Employee Director
Retirement Plan may be amended to provide that (a) in addition to any existing
restrictions on amendment and termination, the Non-Employee Director Retirement
Plan shall not be terminated or amended in any manner adverse to participants
who are participants as of the date hereof, and (b) a participant who retires at
or after age 55 may elect to defer the commencement of benefits under the Non-
Employee Director Retirement Plan until age 62. In addition, the Non-Employee
Director Retirement Plan shall be amended (with the consent of participants
given as of the time of execution of the Merger Agreement) as described in the
last sentence of Paragraph 9 hereof (except that cash credited to a
participant's account shall not thereafter be credited with interest).
14. Annual Incentive Plan. For fiscal 1997, participants in the Seller's
Annual Incentive Plan will receive a target bonus payment and for that portion
of fiscal 1998 ending on the earlier of (a) a participant's termination of
employment or (b) December 31, 1997, participants will receive a prorated
portion of the target bonus payment based on the number of full months which
have elapsed during such period. The target bonus percentages established by the
Seller will be consistent with Seller's past practice.
15. Bonuses. Bonuses for employees of the Seller and Seller Subsidiaries
other than those participating in the Annual Incentive Plan for fiscal 1997
shall be paid pursuant to the terms of any such bonus plans, or in the absence
of a plan, consistent with past practice of Seller and Seller Subsidiaries,
except that any other bonus amounts which, in a manner consistent with past
practice, have been accrued as of the end of fiscal 1997, may also be paid. All
bonuses in respect of fiscal 1998 which, in a manner consistent with past
practice, are accrued but unpaid as of the Effective Time shall be paid promptly
following the Effective Time.
16. Amendments. The Company agrees that the Seller shall be permitted,
prior to the Effective Time to make the amendments to, and to take such other
actions with respect to, its plans and agreements, as described herein.
17. Employee Loan Program. Each Affected Employee will have the ability to
retain any loan, under its existing terms and conditions, provided to such
employee under the Seller's Employee Loan Program until its maturity. Any
outstanding loan under the Employee Loan Program of any employee of Seller or
the Seller Subsidiaries whose
B-7
employment is terminated following the Effective Time will be refinanced by the
Company, under the loan program of the Company in a standard loan product
provided by the Company at that time, at the then prevailing rate of interest
made available to employees of the Company, unless the employee's credit history
does not meet the Company's standard loan criteria. The fact that the employee
has been severed will not be taken into account in determining whether the
employee satisfies the Company's standard loan criteria.
B-8
EXHIBIT 2.23
------------
AGREEMENT
---------
THIS AGREEMENT is entered into as of the 14th day of March 1997 by and among
_____________________ ("Employee"), Security Capital Corporation ("Seller"),
Security Bank, S.S.B. ("Bank") and Xxxxxxxx & Xxxxxx Corporation ("Company").
PREAMBLE:
In connection with the proposed merger of Seller with and into Company (the
"Merger") pursuant to that certain Agreement and Plan of Merger dated as of the
date hereof (the "Merger Agreement"), and in order to induce Company and Seller
to execute the Merger Agreement, Employee, as the holder of an option or options
to purchase Seller's common stock (the "Options"), and as a signatory to an
Employment Agreement with Seller or one of its subsidiaries, hereby agrees as
follows:
1. Non-qualified Options. Subject to Seller's right to waive this provision
consistent with the terms of the Merger Agreement, Employee agrees not to
exercise that portion of his Options to purchase Seller's common stock to the
extent such options are nonqualified stock options ("NSOs"). All NSOs shall be
surrendered at the Effective Time in exchange for a cash payment equal to the
excess of the Average Per Share Consideration, as defined in the Merger
Agreement, over the exercise price for the Options times the number of shares
covered by the NSOs. The cash proceeds will be reduced by any applicable
withholding. No option holder shall exercise any Option after the date which is
five calendar days prior to the Effective Time of the Merger, provided that
incentive stock options ("ISOs") may be exercised after the Effective Time of
the Merger. The Company will give notice to the option holder of the expected
Effective Time at least fifteen calendar days prior to such Effective Time.
Employee agrees, to the extent he has transferred Options, that he will use his
best efforts to get the transferee(s) of such Options to execute an agreement,
dated as of the date hereof, whereby such transferee(s) will agree to the same
restrictions on his/their options as contained in this Paragraph 1.
2. Amendment to Employment Agreement. Employee agrees to the following
amendments to the Employment Agreement between Employee, Seller and Seller's
bank subsidiary (the "Bank").
(a) Section 5(vii)(A) is hereby amended to (i) delete that portion
beginning with "the Executive's Total Compensation" through the end of the
sentence and (ii) add "an amount equal to Gross Compensation within the
meaning of the Seller's Group Life Insurance Plan for the last calendar year
preceding the Termination Date. Notwithstanding the foregoing, the total
amount paid pursuant to this Section 5(vii)(A) will be the lesser of (a) the
Severance Amount contained in the Change of Control Severance Benefits
schedule prepared by Seller on March 7, 1997 and provided to
2.23-1
Company; provided, however, that in the case of Messrs. Xxxxxxx X. Xxxxxxx,
Xx., Xxxxxx X. Xxxxxxxx, and Xxxxxx Xxxxxxxxxx, this will be 50% of the amount
reflected on such schedule; or (b) an amount which, when added to the other
'parachute payments' (within the meaning of Section 280G(b)(2)(A) of the
Internal Revenue Code of 1986 as amended (the "Code")) which result from the
'change in control,' equals One Dollar less than 3 times the 'base amount' as
defined in Code Section 280G(d)(2)."
(b) For purposes of determining the amount payable to Employee under
Section 5(vii)(B) of the Employment Agreement, if Employee receives credit
under one or more of the Plans, as defined therein, for retirement benefits
through December 31, 1997, he shall not be entitled to a payment in addition
thereto under Section 5(vii)(B) of the Employment Agreement.
(c) Section 6 of the Employment Agreement is deleted in its entirety and
a new Section 6 is inserted therefor.
"6. Payments Upon a "Change in Control". Payments under Section 5(vii)
hereof, as amended, shall be made in a lump sum within thirty days of the
change in control even if the Executive's employment has not terminated
and even if the Employment Term has expired provided that the Executive
(i) is employed by Seller or one of its subsidiaries at the Effective
Time and (ii) executes a complete and permanent release of all claims
arising out of his employment, including age discrimination (but not
including any vested accrued benefits under the Seller's or Bank's
qualified or nonqualified retirement or profit sharing plans), and does
not revoke the release within the statutory period for revocation.
The payments to be made to the Executive hereunder will be reduced by any
Federal, State, or local withholding or other taxes or charges as
required under applicable law, and all amounts payable to the Executive
hereunder are stated before any such deduction. Furthermore, none of the
payments hereunder shall be included as compensation for purposes of any
pension, deferred compensation, or welfare benefit plan or program of
Seller, Bank, or Company, whether qualified or nonqualified."
3. Reliance. Employee acknowledges that Seller and Company are taking
various actions, including, without limitation, signing the Merger Agreement and
expending significant amounts of money to pursue the Merger, in reliance upon
this Agreement.
4. Choice of Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Wisconsin.
2.23-2
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date set forth above.
EMPLOYEE:
----------------------------
SECURITY CAPITAL CORPORATION
By:
--------------------------
Attest:
----------------------
SECURITY BANK, S.S.B.
By:
--------------------------
Attest:
----------------------
XXXXXXXX & ILSLEY CORPORATION
By:
--------------------------
Attest:
----------------------
2.23-3
AGREEMENT
---------
THIS AGREEMENT is entered into as of the 14th day of March 1997 by and among
_____________________ ("Employee"), Security Capital Corporation ("Seller"),
Security Bank, S.S.B. ("Bank") and Xxxxxxxx & Xxxxxx Corporation ("Company").
PREAMBLE:
In connection with the proposed merger of Seller with and into Company (the
"Merger") pursuant to that certain Agreement and Plan of Merger dated as of the
date hereof (the "Merger Agreement"), and in order to induce Company and Seller
to execute the Merger Agreement, Employee, as the holder of an option or options
to purchase Seller's common stock (the "Options"), as a signatory to an
Employment Agreement with Seller or one of its subsidiaries and as a participant
in the Deferred Compensation Plan for Officers or a similar deferred
compensation arrangement, hereby agrees as follows:
1. Non-qualified Options. Subject to Seller's right to waive this provision
consistent with the terms of the Merger Agreement, Employee agrees not to
exercise that portion of his Options to purchase Seller's common stock to the
extent such options are nonqualified stock options ("NSOs"). All NSOs shall be
surrendered at the Effective Time in exchange for a cash payment equal to the
excess of the Average Per Share Consideration, as defined in the Merger
Agreement, over the exercise price for the Options times the number of shares
covered by the NSOs. The cash proceeds will be reduced by any applicable
withholding. No option holder shall exercise any Option after the date which is
five calendar days prior to the Effective Time of the Merger, provided that
incentive stock options ("ISOs") may be exercised after the Effective Time of
the Merger. The Company will give notice to the option holder of the expected
Effective Time at least fifteen calendar days prior to such Effective Time.
Employee agrees, to the extent he has transferred Options, that he will use his
best efforts to get the transferee(s) of such Options to execute an agreement,
dated as of the date hereof, whereby such transferee(s) will agree to the same
restrictions on his/their options as contained in this Paragraph 1.
2. Amendment to Employment Agreement. Employee agrees to the following
amendments to the Employment Agreement between Employee, Seller and Seller's
bank subsidiary (the "Bank").
(a) Section 5(vii)(A) is hereby amended to (i) delete that portion
beginning with "the Executive's Total Compensation" through the end of the
sentence and (ii) add "an amount equal to Gross Compensation within the
meaning of the Seller's Group Life Insurance Plan for the last calendar year
preceding the Termination Date. Notwithstanding the foregoing, the total
amount paid pursuant to this Section 5(vii)(A) will be the lesser of (a) the
Severance Amount contained in the Change of Control Severance Benefits
schedule prepared by Seller on March 7, 1997 and provided to Company;
provided, however, that in the case of Messrs. Xxxxxxx X. Xxxxxxx, Xx., Xxxxxx
X. Xxxxxxxx, and Xxxxxx Xxxxxxxxxx, this will be 50% of the amount reflected
on such
2.23-4
schedule; or (b) an amount which, when added to the other 'parachute payments'
(within the meaning of Section 280G(b)(2)(A) of the Internal Revenue Code of
1986 as amended (the "Code")) which result from the 'change in control,'
equals One Dollar less than 3 times the 'base amount' as defined in Code
Section 280G(d)(2)."
(b) For purposes of determining the amount payable to Employee under
Section 5(vii)(B) of the Employment Agreement, if Employee receives credit
under one or more of the Plans, as defined therein, for retirement benefits
through December 31, 1997, he shall not be entitled to a payment in addition
thereto under Section 5(vii)(B) of the Employment Agreement.
(c) Section 6 of the Employment Agreement is deleted in its entirety and
a new Section 6 is inserted therefor.
"6. Payments Upon a "Change in Control". Payments under Section 5(vii)
hereof, as amended, shall be made in a lump sum within thirty days of the
change in control even if the Executive's employment has not terminated
and even if the Employment Term has expired provided that the Executive
(i) is employed by Seller or one of its subsidiaries at the Effective
Time and (ii) executes a complete and permanent release of all claims
arising out of his employment, including age discrimination (but not
including any vested accrued benefits under the Seller's or Bank's
qualified or nonqualified retirement or profit sharing plans), and does
not revoke the release within the statutory period for revocation.
The payments to be made to the Executive hereunder will be reduced by any
Federal, State, or local withholding or other taxes or charges as
required under applicable law, and all amounts payable to the Executive
hereunder are stated before any such deduction. Furthermore, none of the
payments hereunder shall be included as compensation for purposes of any
pension, deferred compensation, or welfare benefit plan or program of
Seller, Bank, or Company, whether qualified or nonqualified."
3. Amendment to Deferred Compensation Plan for Officers. Employee consents to
the amendments made to the Deferred Compensation Plan for Officers or a similar
deferred compensation arrangement pursuant to Paragraph 9 of Annex B to the
Merger Agreement. Employee acknowledges receiving a copy of Annex B to the
Merger Agreement and agrees to be bound by such amendments.
4. Reliance. Employee acknowledges that Seller and Company are taking various
actions, including, without limitation, signing the Merger Agreement and
expending significant amounts of money to pursue the Merger, in reliance upon
this Agreement.
5. Choice of Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Wisconsin.
2.23-5
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date set forth above.
EMPLOYEE:
-----------------------------------
SECURITY CAPITAL CORPORATION
By:
--------------------------------
Attest:
----------------------------
SECURITY BANK, S.S.B.
By:
--------------------------------
Attest:
-----------------------------
XXXXXXXX & ILSLEY CORPORATION
By:
--------------------------------
Attest:
----------------------------
2.23-6
AGREEMENT
---------
THIS AGREEMENT is entered into as of the 14th day of March 1997 by and among
_____________________ ("Director"), Security Capital Corporation ("Seller"),
Security Bank, S.S.B. ("Bank") and Xxxxxxxx & Xxxxxx Corporation ("Company").
PREAMBLE:
In connection with the proposed merger of Seller with and into Company (the
"Merger") pursuant to that certain Agreement and Plan of Merger dated as of the
date hereof (the "Merger Agreement"), and in order to induce Company and Seller
to execute the Merger Agreement, Director, as the holder of an option or options
to purchase Seller's common stock (the "Options") and as a participant in the
Nonemployee Director Deferred Compensation Plan and the Nonemployee Director
Retirement Plan hereby agrees as follows:
1. Non-qualified Options. Subject to Seller's right to waive this provision
consistent with the terms of the Merger Agreement, Director agrees not to
exercise his Options to purchase Seller's common stock ("NSOs"). All NSOs shall
be surrendered at the Effective Time in exchange for a cash payment equal to the
excess of the Average Per Share Consideration, as defined in the Merger
Agreement, over the exercise price for the Options times the number of shares
covered by the NSOs. No option holder shall exercise any Option after the date
which is five calendar days prior to the Effective Time of the Merger. The
Company will give notice to the option holder of the expected Effective Time at
least fifteen calendar days prior to such Effective Time. Director agrees, to
the extent he has transferred Options, that he will use his best efforts to get
the transferee(s) of such Options to execute an agreement, dated as of the date
hereof, whereby such transferee(s) will agree to the same restrictions on
his/their options as contained in this Paragraph 1.
2. Amendment to Nonemployee Director Deferred Compensation Plan. Director
consents to the amendments made to the Nonemployee Director Deferred
Compensation Plan pursuant to Paragraph 10 of Annex B to the Merger Agreement.
Director acknowledges receiving a copy of Annex B to the Merger Agreement and
agrees to be bound by such amendments.
3. Amendment to Nonemployee Director Retirement Plan. Director consents to
the amendments made to the Nonemployee Director Retirement Plan pursuant to
Paragraph 13 of Annex B to the Merger Agreement and agrees to be bound by such
amendments.
4. Reliance. Director acknowledges that Seller and Company are taking
various actions, including, without limitation, signing the Merger Agreement and
expending significant amounts of money to pursue the Merger, in reliance upon
this Agreement.
5. Choice of Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Wisconsin.
2.23-7
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date set forth above.
DIRECTOR:
-----------------------------------
SECURITY CAPITAL CORPORATION
By:
--------------------------------
Attest:
----------------------------
SECURITY BANK, S.S.B.
By:
--------------------------------
Attest:
----------------------------
XXXXXXXX & ILSLEY CORPORATION
By:
--------------------------------
Attest:
----------------------------
2.23-8
AGREEMENT
---------
THIS AGREEMENT is entered into as of the 14th day of March 1997 by and among
_____________________ ("Employee"), Security Capital Corporation ("Seller"),
Security Bank, S.S.B. ("Bank") and Xxxxxxxx & Xxxxxx Corporation ("Company").
PREAMBLE:
In connection with the proposed merger of Seller with and into Company (the
"Merger") pursuant to that certain Agreement and Plan of Merger dated as of the
date hereof (the "Merger Agreement"), and in order to induce Company and Seller
to execute the Merger Agreement, Employee, as the holder of an option or options
to purchase Seller's common stock (the "Options"), and as a participant in the
Deferred Compensation Plan for Officers or a similar deferred compensation
arrangement, hereby agrees as follows:
1. Non-qualified Options. Subject to Seller's right to waive this provision
consistent with the terms of the Merger Agreement, Employee agrees not to
exercise that portion of his Options to purchase Seller's common stock to the
extent such options are nonqualified stock options ("NSOs"). All NSOs shall be
surrendered at the Effective Time in exchange for a cash payment equal to the
excess of the Average Per Share Consideration, as defined in the Merger
Agreement, over the exercise price for the Options times the number of shares
covered by the NSOs. The cash proceeds will be reduced by any applicable
withholding. No option holder shall exercise any Option after the date which is
five calendar days prior to the Effective Time of the Merger, provided that
incentive stock options ("ISOs") may be exercised after the Effective Time of
the Merger. The Company will give notice to the option holder of the expected
Effective Time at least fifteen calendar days prior to such Effective Time.
Employee agrees, to the extent he has transferred Options, that he will use his
best efforts to get the transferee(s) of such Options to execute an agreement,
dated as of the date hereof, whereby such transferee(s) will agree to the same
restrictions on his/their options as contained in this Paragraph 1.
2. Amendment to Deferred Compensation Plan for Officers. Employee consents to
the amendments made to the Deferred Compensation Plan for Officers or a similar
deferred compensation arrangement pursuant to Paragraph 9 of Annex B to the
Merger Agreement. Employee acknowledges receiving a copy of Annex B to the
Merger Agreement and agrees to be bound by such amendments.
3. Reliance. Employee acknowledges that Seller and Company are taking various
actions, including, without limitation, signing the Merger Agreement and
expending significant amounts of money to pursue the Merger, in reliance upon
this Agreement.
4. Choice of Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Wisconsin.
2.23-9
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date set forth above.
EMPLOYEE:
-----------------------------------
SECURITY CAPITAL CORPORATION
By:
--------------------------------
Attest:
----------------------------
SECURITY BANK, S.S.B.
By:
--------------------------------
Attest:
----------------------------
XXXXXXXX & ILSLEY CORPORATION
By:
--------------------------------
Attest:
----------------------------
2.23-10
AGREEMENT
---------
THIS AGREEMENT is entered into as of the 14th day of March 1997 by and among
_____________________ ("Employee"), Security Capital Corporation ("Seller"),
Security Bank, S.S.B. ("Bank") and Xxxxxxxx & Xxxxxx Corporation ("Company").
PREAMBLE:
In connection with the proposed merger of Seller with and into Company (the
"Merger") pursuant to that certain Agreement and Plan of Merger dated as of the
date hereof (the "Merger Agreement"), and in order to induce Company and Seller
to execute the Merger Agreement, Employee, as the holder of an option or options
to purchase Seller's common stock (the "Options"), hereby agrees as follows:
1. Non-qualified Options. Subject to Seller's right to waive this provision
consistent with the terms of the Merger Agreement, Employee agrees not to
exercise that portion of his Options to purchase Seller's common stock to the
extent such options are nonqualified stock options ("NSOs"). All NSOs shall be
surrendered at the Effective Time in exchange for a cash payment equal to the
excess of the Average Per Share Consideration, as defined in the Merger
Agreement, over the exercise price for the Options times the number of shares
covered by the NSOs. The cash proceeds will be reduced by any applicable
withholding. No option holder shall exercise any Option after the date which is
five calendar days prior to the Effective Time of the Merger, provided that
incentive stock options ("ISOs") may be exercised after the Effective Time of
the Merger. The Company will give notice to the option holder of the expected
Effective Time at least fifteen calendar days prior to such Effective Time.
Employee agrees, to the extent he has transferred Options, that he will use his
best efforts to get the transferee(s) of such Options to execute an agreement,
dated as of the date hereof, whereby such transferees(s) will agree to the same
restrictions on his/their options as contained in this Paragraph 1.
2. Reliance. Employee acknowledges that Seller and Company are taking various
actions, including, without limitation, signing the Merger Agreement and
expending significant amounts of money to pursue the Merger, in reliance upon
this Agreement.
3. Choice of Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Wisconsin.
2.23-11
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date set forth above.
EMPLOYEE:
-----------------------------------
SECURITY CAPITAL CORPORATION
By:
--------------------------------
Attest:
----------------------------
SECURITY BANK, S.S.B.
By:
--------------------------------
Attest:
----------------------------
XXXXXXXX & ILSLEY CORPORATION
By:
--------------------------------
Attest:
----------------------------
2.23-12
AGREEMENT
---------
THIS AGREEMENT is entered into as of the 14th day of March 1997 by and among
_____________________ ("Option Holder"), Security Capital Corporation
("Seller"), Security Bank, S.S.B. ("Bank") and Xxxxxxxx & Xxxxxx Corporation
("Company").
PREAMBLE:
In connection with the proposed merger of Seller with and into Company (the
"Merger") pursuant to that certain Agreement and Plan of Merger dated as of the
date hereof (the "Merger Agreement"), and in order to induce Company and Seller
to execute the Merger Agreement, Option Holder, as the holder of an option or
options to purchase Seller's common stock (the "Options"), hereby agrees as
follows:
1. Non-qualified Options. Subject to Seller's right to waive this provision
consistent with the terms of the Merger Agreement, Option Holder agrees not to
exercise his Options to purchase Seller's common stock. All Options shall be
surrendered at the Effective Time in exchange for a cash payment equal to the
excess of the Average Per Share Consideration, as defined in the Merger
Agreement, over the exercise price for the Options times the number of shares
covered by the Options. The cash proceeds will be reduced by any applicable
withholding. No Option Holder shall exercise any Option after the date which is
five calendar days prior to the Effective Time of the Merger. The Company will
give notice to the Option Holder of the expected Effective Time at least fifteen
calendar days prior to such Effective Time.
2. Reliance. Option Holder acknowledges that Seller and Company are taking
various actions, including, without limitation, signing the Merger Agreement and
expending significant amounts of money to pursue the Merger, in reliance upon
this Agreement.
3. Choice of Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Wisconsin.
2.23-13
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date set forth above.
OPTION HOLDER:
-----------------------------------
SECURITY CAPITAL CORPORATION
By:
--------------------------------
Attest:
----------------------------
SECURITY BANK, S.S.B.
By:
--------------------------------
Attest:
----------------------------
XXXXXXXX & XXXXXX CORPORATION
By:
--------------------------------
Attest:
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2.23-14
EXHIBIT 9.1
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INDEX GROUP
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Weighting
Company Factor
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AmSouth Bancorporation 4.44%
Bancorp Hawaii, Inc. 2.79
Crestar Financial Corporation 3.07
First of America Bank Corp. 5.97
First Security Corporation 4.07
First Tennessee National Corporation 4.75
Firstar Corporation 3.46
Huntington Bancshares, Inc. 6.27
Mercantile Bancorporation Inc. 6.79
Northern Trust Corporation 7.18
Old Kent Financial Corporation 3.49
Regions Financial Corporation 6.06
SouthTrust Corporation 5.65
Southern National Corporation 8.45
Star Banc Corporation 5.64
Summit Bancorp. 8.38
Synovus Financial Corp. 6.49
Union Planters Corporation 4.69
Wilmington Trust Corporation 2.39
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TOTAL 100.00%
9.1-1
