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Exhibit 10.15
PLAN AND AGREEMENT OF MERGER AND REORGANIZATION
Plan and Agreement of Merger and Reorganization (hereinafter referred
to as "Agreement"), made as of the 27th day of February, 1997, by and between F
& M Bancorporation, Inc., a Wisconsin corporation, F & M Merger Corporation, a
Wisconsin corporation and Citizen's National Bancorporation, Inc., a Wisconsin
corporation.
1. Definitions.
The following definitions shall apply in this Plan and Agreement of
Merger and Reorganization:
1.1 "Agreement" shall mean this Plan and Agreement of Merger and
Reorganization.
1.2 "BANK" shall mean The Citizen's National Bank of Darlington,
000 Xxxxx Xxxxxx, X.X. Xxx 00, Xxxxxxxxxx, Xxxxxxxxx 00000.
1.3 "BANK Stock" shall mean BANK's voting capital stock $100.00
par value.
1.4 "CNB Shareholders" shall mean the shareholders of CNB
identified in the Schedule of Shareholders attached hereto as Exhibit 1.4.
1.5 "CNB Counsel" shall mean Boardman, Suhr, Xxxxx & Field, 000
Xxxxxxx Xxxxx, Xxx Xxxxx Xxxxxxxx Street, P.O. Box 927, Madison, Wisconsin
53701-0927, Attn: Xxxx Xxxxxx, Esq.
1.6 "CNB" shall mean Citizen's National Bancorporation, Inc., 000
Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxx 00000.
1.7 "CNB Common" shall mean CNB's voting common stock, no par
value.
1.8 "Closing Date" shall mean the date set by mutual agreement of
CNB and F & M and will not occur prior to the satisfaction or the waiver of all
of the conditions to the transaction.
1.9 "Effective Time" shall mean the date the Articles of Merger
are filed with the State of Wisconsin Department of Financial Institutions,
Division of Corporate and Consumer Services (the "Division"). The Articles of
Merger shall be filed as soon as possible after the conditions precedent to
this merger have been met or waived by F & M and CNB, but shall not be
effective prior to the Closing Date.
1.10 "F & M" shall mean F & M Bancorporation, Inc., Xxx Xxxx
Xxxxxx, Xxxxxxxx, Xxxxxxxxx 00000.
1.11 "F & M Common" shall mean F & M's voting common stock, $1.00
par value.
1.12 "F & M Selling Price" shall mean the average closing price for
F & M Common, as quoted on the NASDAQ National Market System ("NASDAQ"), for
the fifteen (15) trading days on which F & M Common is actually traded,
immediately preceding the five (5) calendar days prior to the Closing Date of
the transaction.
1.13 "F & M Counsel" shall mean McCarty, Curry, Xxxxxxx, Peeters &
Xxxx, 000 Xxxx Xxxxxx Xxxxxx, X.X. Xxx 000, Xxxxxxxx, Xxxxxxxxx 00000-0000,
Attn: Xxxxxxx X. Xxxx, Esq.
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1.14 "Securities Counsel" shall mean Xxxxxxx & Xxxxx, 000 Xxxx
Xxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000-0000, Attn: Xxxxxxx X. Xxxxxxx,
Esq.
1.15 "Subsidiary" shall mean F & M Merger Corporation, Xxx Xxxx
Xxxxxx, Xxxxxxxx, Xxxxxxxxx 00000, a wholly-owned subsidiary of F & M.
1.16 "Registration Statement" shall mean the Registration Statement
of F & M as amended pursuant to which the shares of F & M Common to be issued
in the merger will be registered with the Securities and Exchange Commission
("SEC"), and which shall include the prospectus of F & M relating to the F & M
Common issuable in the transaction and the proxy statement of CNB to its
shareholders relating to approval of the merger (the "Prospectus/Proxy
Statement").
2. Preamble.
F & M and Subsidiary are multi-bank holding companies with subsidiary
banks located in Wisconsin. BANK is a national banking corporation located in
Darlington, Wisconsin and is a wholly-owned subsidiary of CNB. F & M and CNB,
by their respective employees and agents have had the opportunity to make such
review and investigation of the other as they deem appropriate and to negotiate
the terms and conditions of this Agreement. F & M, Subsidiary and CNB each
believe that this transaction is in their best interests and in the best
interests of their shareholders and communities and desire to set forth their
agreement and understanding in this Agreement.
The parties have considered the proposed merger and believe that a
merger between CNB and Subsidiary resulting in BANK becoming a subsidiary of F
& M will be in the best interest of their respective corporations,
shareholders, and communities. The merger of CNB into Subsidiary is intended
to constitute a reorganization within the meaning of Sections 368(a)(1)(A) and
368(a)(2)(E) of the Internal Revenue Code of 1986, as amended.
In consideration of the foregoing and the terms, conditions and
covenants of this Agreement and in reliance on the warranties and
representations contained herein, the parties adopt this Plan and Agreement of
Merger and Reorganization and agree as follows:
3. Merger of CNB into Subsidiary.
3.1 Surviving Corporation. At the Effective Time of the merger,
CNB shall be merged into Subsidiary in accordance with the laws of the State of
Wisconsin. Subsidiary shall be the surviving corporation and the separate
corporate existence, identity, and the organization of CNB, except as
specifically provided by law and this Agreement, shall cease. As the surviving
corporation, Subsidiary shall succeed to and possess all the assets,
properties, powers, privileges, rights and immunities of CNB and shall be
subject to all liabilities, obligations, limitations and duties of Subsidiary
as described in this Agreement.
3.2 Subsidiary Stock Subscription. Subject to the fulfilling of
the conditions precedent to the closing of this transaction set forth below, F
& M will transfer to Subsidiary such shares of F & M Common as may be necessary
to effect the merger, as described under paragraph 3.3 below.
3.3 Exchange of CNB Common. At the Effective Time, the shares of
the CNB Common shall be converted into shares of F & M Common as follows:
(a) All CNB Shareholders will receive shares of F & M Common
based upon the Exchange Ratio. The Exchange Ratio shall be calculated by
dividing the F & M Stock Offer by the number of outstanding shares of CNB
Common at the Effective Time, rounded to three decimal places. The Exchange
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Ratio shall be multiplied by the number of shares of CNB Common held by each
CNB Shareholder to determine the number of shares of F & M Common to be issued
to that CNB Shareholder.
(b) Subject to satisfying the requirements of paragraph 3.4,
the F & M Stock Offer is Five Hundred Twenty-five Thousand (525,000) shares
of F & M Common.
(c) No fractional shares of F & M Common shall be issued; all
fractional shares will be converted to cash in an amount equal to the
fractional share determined in accordance with the formula set forth above
multiplied by F & M Selling Price.
3.4 Adjustment to F & M Stock Offer. The F & M Stock Offer is
subject to adjustment as of the Closing Date by an amount equal to 1.65 times
the sum of all amounts determined under subparagraphs (a) through (g) below
divided by the F & M Selling Price, rounded to the nearest whole share. If
the sum is a negative number, the quotient thus determined shall be subtracted
from the F & M Stock Offer. If the sum is a positive number, the quotient thus
determined shall be added to the F & M Stock Offer. The adjustment factors are
as follows:
(a) The amount of all uncollected loans or leases which are
considered as, or have the probability of becoming, losses (i) as determined by
F & M's due diligence review of BANK, if any, as set forth in writing to CNB
(which shall be upon agreement of the parties regarding the loans and leases to
be included therein be designated as Exhibit 3.4 (a) to this Agreement) within
forty-five (45) days following execution of this Agreement, provided, however,
that CNB may terminate this Agreement without any liability or responsibility
to F & M whatsoever if CNB determines in its sole discretion within fifteen
(15) days following the notice of the proposed adjustment to CNB that CNB is
not satisfied with the proposed adjustment under this section of such review,
or (ii) based upon circumstances which first arise and become known to F & M
after the execution of this Agreement, subject, however, to the mutual
agreement of the parties, and if the parties are unable in good faith to reach
such a mutual agreement, either party may withdraw from the transaction;
(b) The amount by which the expenses of this transaction [as
set forth in paragraph 4.4(d)] exceed the limit set forth in paragraph 4.4(d);
(c) As a result of any change in accounting practices or
procedures adopted by CNB or BANK, other than at the request of F & M, after
the date of this Agreement and prior to the Closing Date which have an adverse
affect on BANK's equity;
(d) If the total actual 1997 earnings of BANK, determined in
accordance with generally accepted principles applied on a consistent basis
("GAAP"), net of tax effect (the "Actual Earnings") for the period from January
1, 1997, to the end of the month prior to the Closing Date are less than
Sixty-nine Thousand Dollars ($69,000) per month (the "Minimum Earnings"), the
amount of this difference shall be a negative adjustment to the F & M Stock
Offer. If the total 1997 Actual Earnings for the period from January 1, 1997,
to the end of the month prior to the Closing Date exceed Ninety Thousand
Dollars ($90,000) per month (the "Maximum Earnings") the amount of this excess
shall be a positive adjustment to the F & M Stock Offer. The actual expenses
of this transaction as set forth in Exhibit 4.4(d), any audit expenses arising
from an audit requested by F & M and any amount necessary to increase BANK's
reserve for loan and lease losses requested by F & M shall not be considered in
determining BANK's Maximum Earnings or Minimum Earnings, or BANK's equity under
paragraph 4.4(f);
(e) The amount equal to the difference between the fair
market value, if lesser than book value, of any OREO of BANK;
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(f) The amount of any obligation to any employee, officer,
director or shareholder which may become payable after the Closing Date at the
option of the employee, officer, director or shareholder as a result of the
change in control of BANK contemplated by this agreement; and
(g) As a result of any unfunded or underfunded liability in
any benefit plan maintained by BANK assuming the complete termination of such
plan, any costs of bringing such plan into compliance with law and any costs of
terminating such plan.
3.5 Right to Terminate. F & M shall have the right to terminate
this Agreement without liability to CNB or its shareholders by giving CNB
notice of its election to do so within fifteen (15) days after F & M completes
its due diligence review of CNB and BANK. F & M shall complete its due
diligence review of BANK within forty-five (45) days of execution of this
Agreement.
3.6 Articles of Incorporation. The Articles of Incorporation of
Subsidiary in effect immediately prior to the Effective Time of the merger
shall continue in full force and effect as the Articles of Incorporation of the
surviving corporation.
3.7 Bylaws. The Bylaws of Subsidiary in effect immediately prior
to the Effective Time of the merger, shall continue in full force and effect as
the bylaws of the surviving corporation.
3.8 Officers, Directors and Employees. The officers and directors
of Subsidiary at the Effective Time of the merger shall remain as the officers
and directors of the surviving corporation. F & M shall also enter into an
Employment Agreement in the form attached as Exhibit 3.8 with Xxxxxxx X.
XxXxxxxxxx for the term described in such Employment Agreement.
4. Representations and Warranties of CNB. CNB, by its duly authorized
officers, directors or other agents makes the following representations and
warranties to F & M, each of which is true and correct as of the date hereof,
and shall remain true and correct to and including the Closing Date, and shall
be unaffected by any investigation heretofore or hereafter made by, or any
notice to F & M:
4.1 Ownership and Authority. The current CNB Shareholders are
identified in the Schedules attached hereto as Exhibit 1.4.
4.2 CNB Organization and Authority.
(a) CNB is a corporation duly organized, validly existing and
in good standing under the laws of the State of Wisconsin with all requisite
corporate power and authority to own, operate and lease its properties and to
carry on its business as now being conducted and to enter into and perform its
obligations under this Agreement upon receiving the necessary shareholder and
regulatory approval. CNB is duly registered and authorized to operate as a
bank holding company. CNB is only qualified to do business in the State of
Wisconsin.
(b) CNB has good and marketable title to Seventy-five Hundred
(7,500)shares of BANK Stock, free and clear of any and all claims, mortgages,
liens, security interests, pledges or other encumbrances of any kind
whatsoever.
(c) CNB is presently authorized to issue Fifteen Thousand
(15,000) shares of CNB Common. CNB presently has Seven Thousand Thirteen
(7,013) shares of CNB Common validly and legally issued and outstanding, all of
which are fully paid and nonassessable, except as provided by Wis. Stats.
Section 180.0622(2)(b). Treasury shares will not participate in this exchange.
CNB has not issued, and does not have outstanding, any option, warrant or
convertible securities or other right to purchase or convert any obligation
into such corporation's securities and has not agreed to issue or sell any
additional securities of any type.
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(d) The execution, delivery and performance of this Agreement
and the consummation of the transaction contemplated under it have been duly
authorized by appropriate corporate approval exclusive of the shareholder vote
required under applicable law which will be taken before the Closing Date, and
will not violate any provision of CNB's articles of incorporation or bylaws or
any provisions of, or result in the acceleration of any obligation under the
mortgage, lien, lease, agreement, instrument, court order, arbitration award,
judgment or decree to which CNB is a party, or by which CNB is bound and will
not require the consent, authorization or approval of any other public or
private person or entity other than the approval by CNB's shareholders and the
appropriate federal and state securities and banking regulatory agencies and
will not violate any other restriction of any kind or character to which CNB is
subject.
4.3 BANK Organization and Authority.
(a) BANK is duly organized, validly existing and in good
standing under the laws of the United States and has all requisite banking and
corporate power and authority to own, operate and lease its properties and to
carry on its business as now being conducted. BANK has its main office in
Darlington, Wisconsin and has a branch office in Xxxxx Green, Wisconsin. All
necessary corporate approval and authorization and regulatory approval for
BANK's present operations has been given and remains in full force and effect
and in good standing.
(b) BANK is authorized to issue Seventy-five Hundred (7,500)
shares of BANK Stock, BANK's only class of stock. BANK has Seventy-five
Hundred (7,500) shares of BANK Stock issued and outstanding, all of which are
legally and validly issued, fully paid and nonassessable except as provided by
the laws of the United States.
(c) BANK has not issued and does not have outstanding any
option, warrant or convertible securities or other right to purchase or convert
any obligation into BANK's securities and has not agreed to issue or sell any
additional securities of any type.
(d) The execution, delivery and performance of this Agreement
and the consummation of the transaction contemplated under it have been duly
authorized by appropriate corporate approval, exclusive of the shareholder vote
required under applicable law which will be taken before the Closing Date, and
will not violate any provision of BANK's articles of association or bylaws or
any provisions of, or result in the acceleration of any obligation under the
mortgage, lien, lease, agreement, instrument, court order, arbitration award,
judgment or decree to which BANK is a party, or by which BANK is bound and will
not require the consent, authorization or approval of any other public or
private person or entity other than the approval by BANK's shareholders and the
appropriate federal and state securities and banking regulatory agencies and
will not violate any other restriction of any kind or character to which BANK
is subject.
4.4 Financial Matters.
(a) True copies of CNB's financial statements, consisting of
balance sheets, consolidated statements of operations, consolidated statements
of cash flow, and consolidated statements of stockholders' equity as of the
close of business on December 31, 1995, 1994, and 1993, have been delivered by
CNB to F & M ("CNB's Financial Statements"). All of CNB's Financial Statements
are true and correct in all material respects and present an accurate and
complete disclosure of the financial condition of CNB as of their respective
dates, and the earnings for the periods covered, all determined in accordance
with generally accepted accounting standards applied on a consistent basis.
(b) To the best knowledge of CNB and BANK, BANK does not have
any loans presently outstanding which may result in material adverse effect on
the financial condition of BANK because such loan is not in compliance with the
requirements of federal or state banking laws or regulations, which present any
greater than normal risk of collection or which were not made in the normal
course of business. BANK's last
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examination by the Office of the Comptroller of the Currency ("OCC") was as of
September 30, 1995 for which a report has been prepared and as of September 30,
1996 for which a report has not yet been delivered to BANK. CNB was last
examined by the Federal Reserve Bank of Chicago ("FRB") as of December 31,
1993. To the best knowledge of CNB and BANK as of the date hereof BANK does
not have any loans which are reasonably expected to result in a loss to BANK
before the Closing Date, except as set forth in the attached Exhibit 4.4(b).
Neither CNB nor BANK has notice of any adverse regulatory action or proceeding
against BANK, or CNB or their respective officers, directors, or employees, nor
to their best knowledge has any such action been threatened against BANK, or
CNB or their respective officers, directors or employees.
(c) CNB and BANK have good marketable title to all of their
assets, business and properties including, without limitation, all such
properties reflected in the CNB Financial Statements as of December 31, 1995,
except (i) to the extent such assets and properties have been disposed of for
fair value in the ordinary course of business since the date of the Financial
Statements referred to in paragraph 4.4(a), as set forth in Exhibit 4.4(c),
free and clear of any mortgage, lien, pledge, security interest, assessment,
levy, charge, claim or other encumbrance, except for real estate and personal
property taxes for 1996 which are not yet due; (ii) as noted in the Financial
Statements or the notes thereto; (iii) statutory liens not yet delinquent; (iv)
security interests granted incident to borrowings by BANK from the Federal
Reserve Banks, the Federal Home Loan Banks or secured deposits of funds by
federal, state, municipal or other governmental agencies; (v) minor defects and
irregularities in title and encumbrances which do not materially impair the use
thereof for the purposes for which they are held; and (vi) liens in connection
with repurchase agreements. Neither CNB nor BANK has any notice of any special
assessment which will be levied or assessed against any real property owned or
leased by either of them. To the best of CNB's and BANK's knowledge, all real
property owned, operated and leased by CNB and/or BANK is in full compliance in
all material respects with all applicable federal, state and local statutes and
regulations as currently applicable to CNB or BANK as the case may be
including, but not limited to, any building codes, safety codes, OSHA
regulations, environmental laws and regulations, the Americans with
Disabilities Act, zoning ordinances and other similar codes, ordinances and
regulations. Neither CNB nor BANK has received any citations, notices, charges
or other complaints claiming a violation of the foregoing nor is either CNB or
BANK aware of any investigation of any alleged violation.
(d) For the period from January 1, 1997 to December_31, 1997,
BANK has projected in good faith that its ordinary earnings determined in
accordance with generally accepted accounting principles, applied on a
consistent basis, net of tax effect shall be Eight Hundred Ninety-two Thousand
Nine Hundred Fifty and 00/100 Dollars ($883,468.00). The expenses of this
transaction are those incurred by CNB and BANK for legal, accounting and/or
auditing or investment banking and/or brokerage fees or expenses associated
with the acquisition of CNB by F & M (exclusive of the audit performed at the
request of F & M) and will be reasonable and customary and will not in any
event exceed One Hundred Twenty Thousand and 00/100 Dollars ($120,000.00).
(e) All property and assets owned or currently in use by CNB
and BANK, or in which they have an interest (excluding interests which arise in
collateral given to secure loans made by BANK or because of a security interest
granted to BANK) or which are in either CNB's or BANK's possession, are in good
operating condition and repair subject only to normal wear and tear and are set
forth on the attached Exhibit 4.4(e) [for personal property only items with an
original cost basis of Five Hundred and 00/100 Dollars ($500.00) or more]. If
CNB or BANK lease any real or personal property, a separate schedule clearly
identifying such leased property will be included in Exhibit 4.4(e). As of the
Closing Date, all such property and assets will be in the condition represented
above.
(f) As of December 31, 1996, BANK's equity, determined in
accordance with GAAP, but excluding (i) any adjustment (positive or negative)
to such equity pursuant to FASB 115, and (ii) the year end adjustment to
increase its reserve for loan and lease losses to 1.50 percent of loans and
leases was Nine Million Six Hundred Twenty-eight Thousand and 00/100 Dollars
($9,628,000.00).
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(g) For the fiscal year ended December 31, 1996, after
excluding amounts paid for new positions, temporary employees and student
apprentices created in 1996, BANK did not increase the amount of the salaries,
wages, bonuses or other cash compensation by an aggregate amount which exceeds
six and 88/100 percent (6.88%) of the aggregate amount of such salaries, wages,
bonuses or other cash compensation for the fiscal year ended December 31, 1995.
4.5 Changes Since December 31, 1996. Since December 31, 1996,
with respect to CNB and BANK there has not been:
(a) Any loss, damage, destruction or failure to maintain the
tangible assets of CNB or BANK (whether or not covered by insurance), or
affecting its business or properties, which will materially adversely affect
the financial condition or operations of CNB or BANK.
(b) Any lapse, revocation, failure to maintain in full force
and effect or other event which, through the passage of time or the giving of
notice, or both could render any insurance coverage previously maintained by
CNB or BANK ineffective in whole or in part.
(c) Any acquisition by CNB or BANK of a capital asset at a
cost in excess of Five Thousand Dollars ($5,000.00).
(d) Any amendment to their Articles of Incorporation or
Bylaws.
(e) Any change in accounting procedures, practices or methods
from those used by CNB or BANK in prior years provided, however, that prior to
December 31, 1996, (i) BANK increased its reserve for loan and lease losses to
one and 50/100 percent (1.50%) of loans and leases, provided, however, such
increase in excess of 0.95% of BANK's reserve for loans and leases shall not
reduce the purchase price payable by F & M under this Agreement, and such
purchase price shall be calculated as if such increase in reserves for loan and
lease losses did not occur, unless the increase results from losses charged to
the reserve, and (ii) BANK and CNB paid certain expenses associated with this
transaction with the prior consent of F & M.
(f) Any increase in or agreement to increase salaries, wages,
fringe benefits, benefits under any plan subject to ERISA, or other
compensation of any officers, directors, employees or agents of BANK, except
that for 1997, BANK may (i) grant wage and/or salary increases consistent with
past practices which do not exceed, in the aggregate, four and 36/100ths
percent (4.36%) of the wages and salaries being paid as of December 31, 1996,
and (ii) pay bonuses for the 1996 fiscal year which do not exceed those paid
for the fiscal year ended December 31, 1995 without the prior consent of F & M.
(g) Any issuance, or agreement to issue, on or before the
Closing Date or thereafter, directly or indirectly, any additional shares of
CNB Common or BANK Stock, any other class of stock, or other securities of CNB
or BANK.
(h) Any declaration, setting aside or payment of any dividend
or any distribution in respect to CNB Common or BANK Stock or any redemption,
purchase or other acquisition by CNB or BANK of any stock or any other
repayments to the shareholders of CNB or BANK except for dividends declared for
the 1996 fiscal year will not exceed Three Hundred Twenty-five Thousand and
00/100 Dollars ($325,000.00) and for the 1997 fiscal year will not exceed One
Hundred Seventy-five Thousand and 00/100 Dollars ($175,000.00).
(i) Any sale, transfer, or other disposition, prior to
maturity, of any security or other earning asset (exclusive of loans and
leases).
(j) Any borrowings or other indebtedness (excluding deposit
liabilities) in excess of the amounts disclosed by CNB's and BANK's December
31, 1996 Financial Statements, provided, however, that (i)
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under no circumstances shall the total outstanding balances of such borrowings
or other indebtedness (except for borrowings under subpart (ii) below exceed
the total amount historically borrowed by BANK for similar purposes, and (ii)
in the case of borrowings from the Federal Home Loan Bank (the "FHLB"), the
total outstanding borrowings shall not at any time exceed Two Million and
00/100 Dollars ($2,000,000.00).
(k) Any mortgage, lien, pledge, security interest,
assessment, levy, charge, claim or other encumbrance made with respect to any
of the properties or assets of CNB or BANK in addition to those disclosed by
CNB's December 31, 1996 Financial Statements, except to provide security for
deposits with BANK in the ordinary course of its business as set forth in
Exhibit 4.4(k), and to the Federal Home Loan Bank in connection with borrowings
from that Bank as and to the extent permitted under this Agreement.
(l) Any sale, transfer or other disposition of assets of CNB
or BANK except in the normal course of business and consistent with past
practices, and except for transfers made to its investment subsidiary for
investment purposes and not for resale BANK has not sold, transferred or
disposed of any securities prior to maturity.
(m) Any material change in the manner in which business was
being conducted by CNB or BANK prior to December 31, 1996, or other material
failure by CNB or BANK to use their best efforts to maintain its present
business organization (subject to the terms of this Agreement), employees and
customers.
(n) Any loan or commitment to make a loan by BANK with an
interest rate, repayment term, collateral or security requirement or other
condition which are materially different from those upon which BANK made loans
prior to December 31, 1996, except to the extent such difference is in response
to competitive conditions encountered by BANK.
(o) Any change in the arrangements currently utilized by BANK
for performing its data processing without the prior written consent of F & M.
(p) Any other materially adverse change in CNB's or BANK's
prospects, financial condition, assets, liabilities, properties or business.
4.6 Liabilities.
(a) Neither CNB nor BANK has any liabilities, whether
accrued, absolute, contingent or otherwise, which arose or relate to any
transaction or occurrence involving CNB or BANK or their respective officers,
directors, employees, agents or servants prior to the date of this Agreement
which are not disclosed by the CNB's Financial Statements described above or in
Exhibit 4.6(a). To the best of their knowledge, as of the date hereof, no
known circumstances, conditions, happenings, events or arrangements,
contractual or otherwise, exist which may hereafter give rise to any such
liabilities of CNB or BANK.
(b) To the best of their knowledge and except as disclosed on
Exhibits 3.4(a) and 8.19, all parties with whom CNB and BANK have contractual
arrangements are in compliance therewith. Neither CNB nor BANK has declared,
nor is either of them prepared to declare, any such parties in default under
any such contractual arrangements. Neither CNB nor BANK is in default in any
material respect under any contracts to which either of them is a party, nor
has any event occurred, which through the passage of time or the giving of
notice or both, would constitute a default under any such contract or
obligation or cause the acceleration of any obligation of CNB or BANK or result
in the creation of any lien, charge, assessment, encumbrance or other claim
whatsoever upon any asset of CNB or BANK. None of the contracts to which CNB
or BANK is a party will be adversely affected by the transaction contemplated
by this Agreement.
(c) To the best of their knowledge, CNB and BANK are in
compliance in all material respects with all applicable federal, state, county
and local statutes, ordinances, regulations, decrees, orders, or other laws,
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the violation of which would have a material adverse effect on the financial
condition of CNB or BANK. Neither CNB nor BANK has received notice of any
alleged violation of any such statutes, ordinances, regulations, decrees,
orders or other laws.
(d) No legal, administrative or other proceedings,
investigations or inquiries or other claims, judgments, consent decrees,
stipulations, injunctions or restrictions are either pending or outstanding, or
to the best of its knowledge, threatened against, or involving CNB or BANK or
affecting their assets, properties or business. Neither CNB nor BANK knows or
have any grounds to know, of any basis for any such proceedings, investigations
or inquiries or other claims, judgments, consent decrees, stipulations,
injunctions or restrictions.
(e) A schedule of all insurance policies in effect as to CNB
and BANK is set forth in Exhibit 4.6(e). All policies of insurance carried by
BANK are in full force and all premiums thereon have been paid in a timely
manner and are paid to date and all bonds have been acquired and maintained on
all employees, agents, officers and directors of CNB or BANK required to be
bonded. Said insurance and bonds, including but not limited to, general
comprehensive (commercial) public liability insurance covering personal
injuries, death and property damage, fidelity bonds and worker's compensation
insurance have been acquired and maintained for at least the past five (5)
years.
4.7 Taxes. CNB and BANK have filed all federal, state and local
tax returns and reports covering income, sales, use, real or personal property
or other taxes of any type required to be filed and has paid all taxes
including any interest, penalties and assessments which are due and required to
be paid. The taxes provided for in CNB's Financial Statements and which will
be provided for prior to the Closing Date will be adequate for the payment of
any unpaid taxes as of such dates. CNB's federal income tax return has never
been audited. Neither CNB nor BANK has waived any restrictions on the
assessment or collection of any taxes or consented to the extension of any
statute of limitations relating to any tax liability. Neither CNB nor BANK has
determined or been advised that either CNB or BANK may be liable for a material
deficiency or other liability in respect to any state or federal income tax
returns or other tax returns previously filed by CNB or BANK.
4.8 Contracts and Commitments. Except as disclosed in Exhibit
4.8, neither CNB nor BANK has any contracts or commitments, either oral or
written, with any officer, director, shareholder, employee, customer,
depositor, supplier of goods or services or any other entity or person which
contain any terms or conditions which are not usual and customary under the
circumstances and which may have a material adverse effect on the operations,
profitability or net worth of CNB or BANK.
4.9 Reporting and Withholding on Payment of Interest. To the best
of CNB's and BANK's knowledge, BANK has fully complied with the Internal
Revenue Code (the "Code"), and all rules and regulations of the Internal
Revenue Service ("IRS") issued thereunder, with respect to the reporting of
payments of interest and other payments by it, and has complied with all
provisions requiring the withholding for income taxes on such amounts when
required. BANK has instituted adequate procedures to assure compliance with
such provisions. To the best of CNB's and BANK's knowledge, all reporting to
the IRS required of BANK has been done in a timely manner via proper medium.
BANK has not been advised of any violation or potential violation with respect
to such reporting requirements.
4.10 Employees and Employee Benefits.
(a) CNB does not have any employees. Neither CNB nor BANK is
a party to or is bound by any written or oral (i) employment or
employment-related consulting contract which is not terminable at will by
either CNB or BANK as the case may be without penalty, (ii) plan or agreement
providing for any employee bonus, deferred compensation, pension, profit
sharing, retirement benefits, stock purchase, stock option, employee pension
benefit plan or employee welfare benefit plan except as set forth in paragraphs
4.10(b) and 4.10(c) to this Agreement.
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(b) CNB does not have any pension, profit sharing or other
types of employee pension benefits plan. All pension, profit sharing, or other
employee pension benefit plans of BANK ("the Plans") are described in Exhibit
4.10(b) and are now, and will continue until the Closing Date to be, qualified
Plans under Section 401(a) of the Code, in full compliance with the Employee
Retirement Income Security Act of 1974 as amended ("ERISA"). To CNB's and
BANK's best knowledge, all premiums, notices, reports and other filings
required to be delivered or filed under applicable law with respect to such
Plans have been duly and timely delivered or filed. Neither CNB nor BANK has
any knowledge of any fact or circumstance which would materially and adversely
affect such Plans' qualified status or compliance as above described, or of any
"reportable event" (as such term is defined in Section 4043(c) of ERISA) or any
"prohibited transaction" (as such term is defined in Section 406 of ERISA and
Section 4975(c) of the Code) which has occurred since the date on which said
sections first became applicable to the Plans. The Plans satisfy the minimum
funding standards set forth in the Code and ERISA. As of the Closing Date
there will be no unfunded vested liability of the Plans, except for the
obligation of BANK for contributions for the current year which are not yet due
and payable but for which adequate amounts are being accrued on a monthly
basis.
(c) CNB does not have any employee welfare benefit plans.
All employee welfare benefit plans of BANK (the "Welfare Plans") are described
in Exhibit 4.10(c) and are now, and will continue until the Closing Date to be,
in full compliance with the Code and the Employee Retirement Income Security
Act of 1974 as amended ("ERISA"). To CNB's and BANK's best knowledge, all
notices, reports and other filings required to be delivered or filed under
applicable law with respect to such Welfare Plans have been duly and timely
delivered or filed. Neither CNB nor BANK has any knowledge of any fact or
circumstance which would adversely affect such Welfare Plans' compliance as
above described or any "prohibited transaction" (as such term is defined in
Section 406 of ERISA and Section 4975(c) of the Code) which has occurred since
the date on which said sections first became applicable to the Welfare Plans.
(d) No person or governmental agency has made any claim
against CNB or BANK or their respective directors, officers, employees or
agents arising out of any statute, ordinance or regulation alleging (i)
discrimination against applicants for employment, employees or the public, (ii)
any employment practices, policies or procedures are discriminatory or have
been breached, (iii) a failure to comply with federal and state wage and hour
laws, rules or regulations, (iv) a violation of occupational safety and health
statutes, regulations or standards or (v) that CNB or BANK has committed an
unfair labor practice(s).
4.11 Environmental Matters.
(a) To the best knowledge of CNB and BANK, there has been no
release of any hazardous substance, as defined in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980 ("CERCLA") nor
any release of oil or hazardous substance as provided under Wis. Stats. Section
144.76, on, upon or into the real property owned or leased to CNB or BANK or,
to the best of CNB's and BANK's knowledge upon any real estate or property
which secures any loan made by BANK or which BANK has a right to acquire upon
foreclosure or otherwise.
(b) Based upon such information which has come to BANK in the
ordinary course of business, but without making any independent investigation
or verification, neither CNB nor BANK is specifically aware of any such
releases on, upon or into any real property adjoining or in the vicinity of the
property described in paragraph 4.11(a) above, which through air, soil or
groundwater migration could have come to be located upon any property owned or
leased by CNB or BANK, or which secures a loan made by BANK or which may be
acquired by BANK in foreclosure.
4.12 Accuracy of All Statements. No representation or warranty by
CNB or BANK in this Agreement or otherwise, in any of CNB's Financial
Statements, or in any other statement, certificate, schedule or exhibit hereto
furnished or to be furnished by or on behalf of CNB or BANK pursuant to this
Agreement, nor any document or certificate delivered to F & M pursuant to this
Agreement or in connection with actions
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contemplated hereby, contains or shall contain any untrue statement of material
fact or omits or shall omit a material fact necessary to make the statement
contained therein not misleading.
4.13 Prospectus/Proxy Statement. The parts of the Prospectus/Proxy
Statement which are provided or reviewed by CNB with respect to CNB or BANK
will not, at the date it is first mailed or delivered to the CNB's
Shareholders, and will not, at the date or dates of the meeting of CNB's
Shareholders called to approve the Merger, as then amended or supplemented,
contain any statements that are, at the time at which, and in light of the
circumstances under which they are made, false or misleading with respect to
any material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not false or
misleading. Notwithstanding the foregoing, CNB makes no representation or
warranty regarding and shall have no responsibility for the accuracy of any
information with respect to F & M or Subsidiary or any of their affiliates or
subsidiaries contained in the Prospectus/Proxy Statement.
4.14 Financial Adviser. Except for the services of Xxxxxx X. Xxxxx &
Co. Incorporated ("Baird"), CNB has not engaged, consented to engage, or
authorized any financial adviser, broker, investment banker, or similar
third party to act on its behalf, directly or indirectly, in connection with
the transaction contemplated by this Agreement. Any fees or expenses payable
to Baird shall be paid by CNB, which fees and expenses are included in the
estimate of expenses set forth in paragraph 4.4(d).
5. Representations and Warranties of F & M.
F & M, by its duly authorized officers, employees or other agents
makes the following representations to CNB, each of which is true and correct
as of the date hereof and shall remain true and correct to and including the
Closing Date, shall be unaffected by any investigation heretofore or hereafter
made by or any notice to BANK except as set forth herein.
5.1 Organization and Authority.
(a) F & M is a corporation duly organized, validly existing
and in good standing under the laws of the State of Wisconsin with all
requisite corporate power and authority to own, operate and lease its
properties and to carry on its business as now being conducted and to enter
into and perform its obligations under this Agreement, upon receiving the
necessary approval from the federal and state regulatory authorities. F & M is
only qualified to do business in the State of Wisconsin and has received
approval from the Federal Reserve Bank of Chicago to engage in business as a
bank holding company.
(b) Subsidiary is a corporation duly organized, validly
existing and in good standing under the laws of the State of Wisconsin with all
requisite corporate power and authority to own, operate and lease its
properties and to carry on its business as now being conducted and to enter
into and perform its obligations under this Agreement, upon receiving the
approval of its shareholders and the federal and state regulatory authorities.
Subsidiary is only qualified to do business in the State of Wisconsin.
(c) F & M is authorized to issue Twenty Million (20,000,000)
shares of F & M Common and has Seven Million Four Hundred Twenty-one Thousand
Nine Hundred Thirty-three(7,421,933) shares issued and outstanding. F & M will
issue additional shares of F & M Common prior to the Closing Date. These
outstanding shares are legally and validly issued and fully paid and
nonassessable except as provided by Wis. Stats. Section 180.0622(2)(b).
5.2 Performance of this Agreement. The execution, delivery and
performance of this Agreement and the consummation of the transaction
contemplated under it have been duly authorized by appropriate corporate action
and will not violate any provision of F & M's or Subsidiary's articles of
incorporation or bylaws or any provisions of, or result in the acceleration of
any obligation under any mortgage, lien, lease, agreement, instrument, court
order, arbitration award, judgment or decree to which F & M or Subsidiary is a
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party, or by which F & M or Subsidiary is bound and will not require the
consent, authorization or approval of any other public or private person or
entity other than the approval by F & M as the sole shareholder of Subsidiary
and the appropriate federal and state securities and banking regulatory
agencies and will not violate any other restriction of any kind or character to
which F & M or Subsidiary is subject except as set forth in this Agreement.
5.3 Legality of Shares to be Issued. The shares of F & M Common
to be delivered pursuant to this Agreement, when so delivered, will have been
duly and validly authorized and issued by F & M and will be fully paid and
nonassessable, except as provided by Wis. Stats. Section 180.0622(2)(b). Such
shares of F & M Common shall have been registered by F & M under the Securities
Act of 1993, and shall be freely transferrable thereunder (except for
restrictions on transfer applying to affiliates of F & M and BANK).
5.4 Financial Statements. True copies of the audited consolidated
financial statements of F & M consisting of consolidated balance sheets,
consolidated statements of income, consolidated statements of stockholder's
equity and consolidated statements of cash flows as of the close of business on
December_31, 1995 and 1994, have been delivered by F & M to BANK (F & M's
Financial Statements). All of F & M's Financial Statements are true and
correct in all material respects and present an accurate and complete
disclosure of the financial condition of F & M as of their respective dates and
of the earnings for the periods covered, in accordance with generally accepted
accounting principles applied on a consistent basis, except that such financial
statements have not been restated to reflect F & M's acquisition of F & M
Bank-Algoma (f/k/a Community State Bank), which is being accounted for as a
pooling of interests.
5.5 Litigation. There are no legal, administrative or other
proceedings, investigations or inquiries or other claims, judgments, consent
decrees, stipulations, injunctions or restrictions, either threatened, pending
or outstanding against or which may have a material adverse effect on F & M or
Subsidiary or their properties or business, nor does F & M or Subsidiary know,
or have reasonable grounds to know, of any basis for any such proceedings,
investigations or inquiries, or other claims, judgments, consent decrees,
stipulations, injunctions or restrictions.
5.6 Severance Plans. The Restated Employee Severance Benefits
Plan and the Restated Executive Severance Benefits Plan, as adopted and amended
by F & M, shall apply to all employees of BANK following the closing of the
transaction contemplated by this Agreement, provided, however, Xxxxxxx X.
XxXxxxxxxx or Xxxxxx X. Xxxxxx are terminated by F & M or BANK without cause or
due to reduction in workforce within twelve (12) months of the Closing Date
Xxxxxx X. Xxxxxx shall receive the greater of the benefits payable under such
plan or fifty-two (52) weeks of benefits under such plan and Xxxxxxx X.
XxXxxxxxxx shall only be entitled to the severance benefits under his
employment agreement. Continuous years of service for all employees with BANK
prior to the Closing Date shall be considered years of service with F & M under
these plans.
5.7 Accuracy of All Statements. No representation or warranty by
F & M or Subsidiary in this Agreement or otherwise, nor any financial
statements, statement, certificate, schedule or exhibit hereto furnished or to
be furnished by or on behalf of F & M or Subsidiary pursuant to this
Agreement, nor any document or certificate delivered to CNB pursuant to this
Agreement or in connection with actions contemplated hereby, contains or shall
contain any untrue statement of material fact or omits or shall omit a material
fact necessary to make the statement contained therein not misleading.
5.8 Prospectus/Proxy Statement. The Prospectus/Proxy Statement
will not, at the date it is first mailed or delivered to the CNB Shareholders,
and will not, at the date or dates of the meeting of the CNB Shareholders
called to approve the Merger, as then amended or supplemented, contain any
statements that are at the time at which, and in light of the circumstances
under which they are made, false or misleading with respect to any material
fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein not false or misleading.
Notwithstanding the foregoing, F & M makes no representation or
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warranty and shall have no responsibility for the accuracy of any information
contained in or omitted from the Prospectus/Proxy Statement in so far as it
relates to CNB or BANK.
5.9 No Broker. All negotiations relative to this Agreement and
the transaction contemplated hereby have been carried on directly by F & M with
CNB without the intervention of any broker or third party on behalf of F & M.
F & M has not engaged, consented to engage, or authorized any broker,
investment banker, or third party to act on its behalf, directly or indirectly,
in any capacity in connection with the transaction contemplated by this
Agreement.
5.10 BANK's Status. F & M has no present plans to alter BANK's
status as an independent bank operating under its own charter, although F & M
may convert BANK to a state member bank following the Closing Date. F & M may,
at some future time, determine that merger, consolidation, reorganization or
sale of substantially all of the assets of BANK with or to other subsidiary
banks of F & M, Subsidiary or others may occur and nothing herein shall be
construed to limit or diminish the rights of F & M or Subsidiary or their
successors or assigns from taking any such action.
6. Covenants of CNB.
CNB hereby covenants and agrees as follows:
6.1 Access to Information. F & M and its authorized
representatives shall have full access during normal business hours to all
properties, books, records, contracts and documents of CNB and BANK and CNB or
BANK as the case may be shall furnish or cause to be furnished to F & M or its
authorized representative all information with respect to the affairs and
business of CNB or BANK as F & M may reasonably request.
6.2 Actions Prior to Closing. From and after the date of this
Agreement and until the Closing Date, CNB and BANK:
(a) Shall carry on their business diligently and
substantially in the same manner as heretofore and shall not engage in or
institute any unusual or novel methods of doing business or changes in
accounting procedures or practices without the prior written consent of F & M,
provided, however, that BANK will increase its reserve for loan and lease
losses to one and 50/100 percent (1.50%) of loans and leases prior to December
31, 1996 and shall use their best efforts to inform F & M in advance before
either introducing any new products or services or modifying any existing
products or services.
(b) Shall not (i) grant any increase in the rates of pay,
salary or compensation provided to its officers, directors or employees, which
in combination with all increases which became effective on or after January 1,
1997 for the 1997 calendar year (regardless if approved before or after January
1, 1997) exceed in the aggregate four and 36/100 percent (4.36%) of the total
compensation paid to the officers, directors or employees of BANK as of
December 31, 1996, (ii) for the fiscal year ended December 31, 1996, increase
the amount of any bonus paid by BANK in excess of the amount paid by BANK for
the year ended December 31, 1995, (iii) pay any bonuses for the 1997 fiscal
year, or(iv) increase or decrease the benefits provided under, the contribution
to, or the cost sharing allocation of any employee fringe benefit or any of the
benefit plans described in Exhibits 4.10(b) and 4.10(c), except for normal
adjustments imposed by third party providers.
(c) Except with the prior written consent of F & M shall not
enter into any contract or commitment or engage in any transaction which is not
in the normal course of business and which is not consistent with CNB's or
BANK's past business practices.
(d) Shall not create any indebtedness other than (i) short
term indebtedness incurred in the normal course of business, (ii) indebtedness
incurred pursuant to an existing contract previously disclosed to
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F & M, (iii) indebtedness to the FHLB subject to the dollar limit set forth in
paragraph 4.5(j), or (iv) indebtedness other than as necessary to do the acts
and things contemplated by this Agreement.
(e) Shall not declare or pay any cash dividend, stock
dividend or make any other distribution in respect of its stock, or directly or
indirectly redeem, purchase or otherwise acquire any of its own stock, or grant
any stock warrant, options or issue directly or indirectly any shares of common
or preferred stock or any other security of any type whatsoever or in any way
dispose of any shares of its own stock or any other security, except that
dividends may be paid by CNB prior to the Closing Date provided that the total
of all dividends declared in the fiscal year ended December 31, 1996 do not
exceed Three Hundred Twenty-five Thousand and 00/100 Dollars ($325,000.00), and
that the total of all dividends declared in the 1997 fiscal year do not exceed
One Hundred Seventy-five Thousand and 00/100 Dollars ($175,000.00) without the
prior written consent of F & M.
(f) Shall not amend their Articles of Incorporation or Bylaws
or make any changes in authorized or issued stock.
(g) Shall maintain current insurance in effect and acquire
such additional insurance as may be reasonably required by increased business
and risks, and operate, maintain and repair all property in a normal business
manner.
(h) Shall make adequate provision for any income tax which
will be due with respect to any 1996 or 1997 earnings accrued prior to the
Closing Date and shall file all tax reports or returns and pay all income,
franchise, sales, use, excise or other taxes on or before the date on which
such reports, returns, or payments are due.
(i) Shall pay all liabilities in a timely manner on or before
their due dates and shall make adequate provision or accruals for all
liabilities of CNB and BANK.
(j) Shall use their best efforts (without making any
commitments on behalf of F & M) to preserve their business organization intact,
to keep available to F & M the present key officers and employees of CNB and
BANK and to preserve for F & M the present relationships of CNB and BANK with
their suppliers, customers and others having business relations with them.
(k) Shall not sell or dispose of any property or assets
except in the normal course of business, including but not limited to, selling
or disposing of any securities held by BANK or its investment subsidiary prior
to their normal maturity dates without the prior written consent of F & M.
(l) Shall promptly notify F & M of any lawsuits, claims,
proceedings, regulatory actions or investigations that may be threatened,
brought, asserted or commenced against it or its officers, directors, employees
or agents involving in any way the business, properties or assets of CNB or
BANK.
(m) Shall not make loans or grant credit to any customer on
terms materially more favorable than those which are available from competitive
sources. F & M understands that BANK, in order to meet market conditions may
need to offer terms more favorable than those currently offered but that BANK
will not be a market leader in this regard.
(n) Shall not allow BANK's primary capital to asset ratio (12
C.F.R. Part 325 method), determined in accordance with accepted accounting
standards applicable to preparation of Reports of Condition required to be
filed with the Federal Deposit Insurance Corporation, applied on a consistent
basis, to drop below eight percent (8%).
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(o) Shall remain in compliance with all agreements,
commitments, understandings, undertakings or other obligations to the OCC, the
FRB or any other regulatory agency having jurisdiction over CNB and BANK.
(p) Shall cooperate fully and completely with F & M in the
preparation and filing of the Registration Statement, and shall provide to F &
M such information as may be required for use therein pertaining to CNB and
BANK, or their businesses or operations.
(q) Shall not take any action which would be reasonably
likely to make unavailable either the pooling of interests accounting treatment
of the merger or to cause the merger not to qualify as a tax-free
reorganization.
6.3 Audited Financial Statements. BANK shall, at F & M's expense,
deliver audited financial statements to F & M for the period ended December 31,
1996 on or before April 15, 1997. The audit will be performed by Xxxxxx
Xxxxxxx & Xxxxxxxxx, L.L.P.
6.4 Stock Records. Prior to the special shareholders meeting to
approve the Merger, the Board of Directors of CNB, in accordance with its
bylaws, shall take such steps as are necessary to close its stock transfer
books and establish a record date for such meeting after the close of the
transfer books, furnish F & M with a current shareholder list as of such record
date and validly call a special shareholders meeting.
6.5 1997 Budget. Prior to formal adoption by BANK, CNB will
submit BANK's 1997 budget to F & M.
6.6 Reserves for Loan and Lease Losses. Prior to December 31,
1996, BANK increased its reserve for loan and lease losses to one and 50/100
percent (1.50%) of loans and leases and shall take such action as may be
necessary to maintain this reserve at this level until the Closing Date,
provided however that the amount of such increase from Ninety-five one
hundredths percent (0.95%) of loans and leases to one and 50/100 percent
(1.50%) of loans and leases shall not be considered in determining BANK's
Minimum Earnings under paragraph 3.4(d), or equity under paragraph 4.4(f)
unless the amount results from a loss or expense charged to such reserve.
7. Covenants of F & M. F & M hereby covenants and agrees as follows:
(a) As promptly as practicable after the execution of this
Agreement, F & M, with the cooperation of CNB and BANK, shall prepare and file
with the SEC the Registration Statement. As promptly as practicable after
comments, if any, are received from the SEC on such preliminary Registration
Statement, F & M, with the cooperation of CNB and BANK, shall file with the SEC
an amendment to the Registration Statement responding to such comments, and
shall seek to have such Registration Statement declared effective. F & M shall
also use its best efforts to qualify, under the blue sky laws of the various
states in which CNB Shareholders are located, the shares of F & M Common Stock
to be issued pursuant to this transaction and shall file the NASD Listing
Application in a timely manner. F & M shall pay the expenses of preparing and
delivering the joint Prospectus/Proxy Statement for CNB's Shareholders.
(b) As promptly as practicable after the execution of this
Agreement, F & M shall take such action as may be necessary to cause Subsidiary
to perform its obligations in connection with this transaction under this
Agreement.
(c) As promptly as practicable after the execution of this
Agreement, F & M shall take action to obtain regulatory approval of this
transaction.
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(d) Shall not take any action which would be reasonably
likely to make unavailable either the pooling of interest accounting treatment
of the merger or to cause the merger not to qualify as a tax-free
reorganization.
7.2 Officers, Directors and Employees. The present members of
BANK's Board of Directors will be retained by F & M as directors of the BANK
provided that continued membership on the board is consistent with safe and
sound banking practices and is in the best interest of F & M and BANK.
Retirement from the Board of Directors will occur at age seventy (70), as
provided by F & M policy, provided that any current director may remain a
director until the earlier of either two (2) years from the Effective Date or
the 1999 annual shareholders' meeting of the BANK. F & M contemplates that
BANK's current employees will continue to be responsible for the BANK's
operations in general, subject to review and supervision by F & M, as
determined by F & M to be consistent with safe and sound banking practices
and the best interest of F & M and BANK. The salaries and benefits to be
offered will be consistent with those currently received by the employees of F
& M or its subsidiary banks holding similar positions. Years of service with
BANK shall, to the extent permitted by applicable law, be counted as years of
service with F & M and the surviving corporation. In the unlikely event
positions with the BANK are eliminated as a result of the transaction
contemplated by this Agreement, the employees affected by such action will be
covered by F & M's severance plan, applicable to their position at the time the
positions are eliminated, based upon their years of service with BANK.
7.3 Directors' and Officers' Liability Insurance. F & M will
provide the officers and directors of BANK and CNB with directors' and
officers' liability insurance (without any exclusion of prior acts) with the
same limits of liability, deductibility and terms and conditions as is provided
by F & M to its other subsidiaries. This representation is intended to create
a contractual right for the benefit of BANK's and CNB's officers and directors
and may be separately enforced by them subsequent to consummation of the
transaction contemplated by this Agreement in the event F & M fails to comply
with this covenant, provided, however, that nothing herein shall obligate F &
M to provide such coverage if it determines in its sole discretion not to
provide such coverage to all of its subsidiary banks or to offer such coverage
to its subsidiary banks, including BANK, with different limits of liability,
deductibilities or other terms and conditions than those under the coverage
currently in force, without any exclusion for prior acts, however.
8. Conditions Precedent to F & M's Obligation. Each and every obligation
of F & M and Subsidiary to be performed on the Closing Date shall be subject to
the satisfaction prior thereto of the following conditions:
8.1 Truth of Representations and Warranties. The representations
and warranties made in this Agreement or given on behalf of CNB and BANK
hereunder, shall have been continuously true and correct from the date of
execution of this Agreement to the Closing Date, except as publicly announced
by CNB or BANK and/or as reflected in public filings made by CNB or BANK with
the OCC or the FRB, and shall be true and correct on and as of the Closing Date
with the same effect as though such representations and warranties had been
made or given on and as of the Closing Date, and CNB and BANK shall have
complied with all other terms, conditions and covenants of this Agreement.
8.2 Compliance with Covenants. CNB and BANK shall have performed
all of their obligations, and complied with all of the covenants under this
Agreement which are to be performed or complied with by them from the date of
this Agreement through and as of the Closing Date, including the delivery of
the closing documents specified in paragraph 10.3.
8.3 Absence of Suit. No action, suit or proceeding before any
court or any governmental or regulatory authority shall have been commenced or
threatened, and no investigation by any governmental or regulatory authority
shall have been commenced, against F & M, Subsidiary, CNB or BANK, or any of
the affiliates, associates, officers, directors or employees of any of them,
seeking to restrain, prevent or change the transaction contemplated hereby, or
questioning the validity or legality of any such transaction, or seeking
damages in connection with any of such transaction.
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8.4 BANK's Director and Shareholder Authorization. The merger
contemplated by this Agreement shall have been duly and validly authorized by
CNB's and BANK's directors and shareholders in accordance with the laws of the
State of Wisconsin.
8.5 Receipt of Approvals. All approvals, consents and/or waivers,
including any approvals required by any federal or state governmental
regulatory agency, that are necessary to effect the transactions contemplated
hereby shall have been received and all waiting periods thereunder shall have
expired, provided the failure to obtain the same was not the result of an act
or omission by F & M.
8.6 Accuracy of Financial Statements. In the event interim
financial statements are provided to F & M by CNB or BANK, F & M and its
representatives shall be reasonably satisfied as to the accuracy of all interim
balance sheets, statements of income and other financial statements of CNB or
BANK furnished to F & M and Subsidiary for periods ended after December 31,
1995.
8.7 Legal Opinion. F & M shall have received the opinion of CNB
Counsel referred to in subparagraph 10.3(d).
8.8 Time Limit on Closing. Closing shall have taken place by
August 31, 1997.
8.9 Proceedings and Instruments Satisfactory; Certificates. All
proceedings, corporate or otherwise, to be taken in connection with the
transactions contemplated by this Agreement shall have occurred and all
appropriate documents incident thereto as F & M may reasonably request shall
have been delivered to F & M. CNB and BANK shall have delivered certificates
in such detail as F & M may reasonably request as to compliance with the
conditions set forth in this Article 8.
8.10 Securities Matters. The Registration Statement shall have
been declared effective under the Securities Act of 1933 by the SEC. No stop
order suspending the effectiveness of the Registration Statement shall have
been issued by the SEC and no proceedings for that purpose shall, to the
knowledge of F & M, on or prior to the Effective Time, have been initiated or
threatened by the SEC. F & M shall have received all other federal or state
securities permits, exemptions, registrations or other authorizations necessary
to issue the F & M Common in exchange for the CNB Common to consummate the
merger.
8.11 Prospectus/Proxy Statement. The Prospectus/Proxy Statement
will not contain any untrue statement of a material fact or omit any material
fact required to be stated therein or necessary to make the statements
contained therein, in the light of the circumstances under which they were
made, not misleading.
8.12 Exchange of Stock Certificates. As a condition of delivery of
the consideration required by this Agreement, the CNB Shareholders shall have
executed and delivered documents assigning their shares of CNB Common to F & M
and/or Subsidiary containing appropriate representations regarding tax matters,
ownership, authority to act, residency and such other matters as F & M shall
request.
8.13 Affiliates of BANK. Each person who shall be deemed to be an
"affiliate" of CNB within the meaning of the Securities Act of 1933 and Rule
145 promulgated by the SEC thereunder shall have executed and delivered to F &
M an Affiliate's Undertaking, in the form attached hereto as Exhibit 8.13,
dated as of the Effective Time.
8.14 Pooling Accounting. The merger contemplated herein shall be
treated as and qualify for accounting using the pooling of interests method.
8.15 No Change Prior to Closing Date. No material adverse change
in the business or financial condition of BANK shall occur after the execution
of this Agreement but prior to the Closing Date.
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8.16 Tax Status. No information has been discovered or made known
to F & M to indicate that the IRS has challenged or intends to challenge the
status of this transaction as a tax-free reorganization.
8.17 Dissenters' Rights. That no more than ten percent (10%) of
the total consideration paid by F & M in this transaction, determined in
accordance with the accounting rules applicable to the pooling of interests,
shall be paid in cash, including amounts paid for fractional shares and amounts
paid to CNB Shareholders who exercise their dissenters rights under Wis.
Stats. Section 180.
8.18 Employment Agreements. BANK and Xxxxxxx X. XxXxxxxxxx shall
have executed the employment agreement in the form attached hereto as Exhibit
3.8.
8.19 Accounting Adjustments. Prior to the Valuation Date, the loans
identified on Exhibit 3.4(a) shall either be collected in full or the
uncollected portion thereof written off and charged against the reserve for
loan and lease losses. In addition, BANK shall, prior to the Valuation Date,
make the adjustments for the items shown on Exhibit 8.19.
8.20 BANK Earnings. The Actual Earnings of BANK from January 1,
1997 through the month end prior to the month in which closing occurs,
determined in accordance with generally accepted accounting principles, applied
on a consistent basis shall not be less than the Minimum Earnings from January
1, 1997, through the month end prior to the month in which closing occurs.
9. Conditions Precedent to CNB's Obligations.
Each and every obligation of CNB to be performed on the Closing Date
shall be subject to the satisfaction prior thereto of the following conditions:
9.1 Truth of Representations and Warranties. The representations
and warranties made by F & M and Subsidiary in this Agreement or given on their
behalf hereunder, shall have been continuously true and correct from the date
of execution of this Agreement to the Closing Date, except as publicly
announced by F & M or Subsidiary and/or reflected in public filings made by F &
M or Subsidiary with the SEC or the FRB as this may affect the statements in
paragraph 5.1(c), and shall be true and correct on and as of the Closing Date
with the same effect as though such representations and warranties had been
made or given on and as of the Closing Date and F & M and Subsidiary shall have
complied with all other terms, conditions and covenants of this Agreement.
9.2 F & M's Compliance. F & M and Subsidiary shall have performed
and complied with all of their obligations under this Agreement which are to be
performed or complied with by them prior to or as of the Closing Date,
including delivery of the closing documents.
9.3 Absence of Suit. No action, suit or proceeding before any
court or any governmental or regulatory authority shall have been commenced or
be threatened and, no investigation by any governmental or regulatory authority
shall have been commenced, against F & M, Subsidiary, CNB or BANK, or any of
the affiliates, associates, officers, directors or employees of any of them,
seeking to restrain, prevent or change the transactions contemplated hereby, or
questioning the validity or legality of any such transactions, or seeking
damages in connection with any of such transactions.
9.4 Proceedings and Instruments Satisfactory; Certificates. All
proceedings, corporate or otherwise, to be taken by F & M or Subsidiary in
connection with the transaction contemplated by this Agreement shall have
occurred and all appropriate documents incident thereto as CNB may reasonably
request shall have been delivered to CNB. F & M shall have delivered
certificates in such detail as CNB may reasonably request as to compliance with
the conditions set forth in this Article 9.
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9.5 Receipt of Approvals. All approvals, consents and or waivers,
including any approvals required by any federal or state governmental
regulatory agency that are necessary to effect the transactions contemplated
hereby shall have been received, and all waiting periods shall have expired
provided the failure to obtain the same was not the result of an act or
omission by CNB or BANK.
9.6 Time Limit on Closing. Closing shall have taken place by
August 31, 1997.
9.7 Legal Opinion. CNB shall have received the opinion of F & M
Counsel referred to in subparagraph 10.4(d).
9.8 Prospectus/Proxy Statement. The Prospectus/Proxy Statement
will not contain any untrue statement of material fact or omit any material
fact required to be stated therein or necessary to make the statements
contained therein, in the light of the circumstances under which they were
made, not misleading.
9.9 Tax Status. No information has been discovered or made known
to CNB to indicate that the IRS has challenged or intends to challenge the
status of this transaction as a tax-free reorganization.
9.10 Tax Opinion. CNB Shareholders shall have received an opinion
from F & M Counsel satisfactory to CNB and for the benefit of CNB shareholders
to the effect that the transaction contemplated by this Agreement shall be
tax-free to those CNB Shareholders who receive F & M Common in exchange for
their CNB Common (excluding fractional or dissenting shares).
9.11 Shareholder Vote. CNB Shareholders and directors shall have
approved the transaction as required by applicable law.
9.12 Securities Matters. The Registration Statement shall have
been declared effective under the Securities Act of 1933 by the SEC. No stop
order suspending the effectiveness of the Registration Statement shall have
been issued by the SEC and no proceedings for that purpose shall, to the
knowledge of F & M or Subsidiary, on or prior to the Effective Time, have been
initiated or threatened by the SEC. F & M shall have received all other
federal or state securities permits, exemptions, registrations or other
authorizations necessary to issue the F & M Common in exchange for the CNB
Stock to consummate the merger.
10. Closing.
10.1 Time and Place. The closing of this transaction ("Closing")
shall take place at the offices of F & M (or such other place as the parties
may agree) on the Closing Date.
10.2 Rights of CNB Shareholders After the Effective Time. After
the Effective Time and until the surrender of a stock certificate representing
shares of CNB Common, each such outstanding certificate, which prior to the
Effective Time represented shares of CNB Common, shall be deemed for all
purposes, subject to the further provisions of this Agreement, to evidence the
ownership of the number of full shares of F & M Common into which such shares
have been converted; provided, however, that unless and until any such
certificates representing CNB Common shall be so surrendered, the stock
certificate representing the shares, any dividends or other distributions of
any kind payable in respect of shares of F & M Common into which such CNB
Common has been converted, shall be withheld by F & M. Upon the subsequent
surrender and exchange of such CNB Common certificates, such holder of record
of the certificates formerly representing shares of CNB Common (or such
holder's assignee) shall be paid the amount of any such cash dividends or other
distributions, without interest, which became payable under this Agreement to
holders of record of shares of F & M Common on or after the Effective Time and
prior to the surrender and exchange of the certificates. Delivery of
certificates representing shares of F & M Common to former CNB Shareholders who
have tendered their certificates for their shares of CNB Common at or before
the Effective Time shall be made as soon as reasonably possible after the
Effective Time.
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10.3 Documents to be Delivered by CNB. At the time of or prior to
the closing, CNB shall deliver the following documents:
(a) A certificate by the chairman, vice-chairman or president
of CNB and BANK that to the best of such officers' knowledge (i) that the
representations and warranties made by CNB and/or BANK as the case may be in
this Agreement are true and correct on as of the Closing Date with the same
effect as though such representations and warranties had been made on or given
on and as of the Closing Date, (ii) that CNB and BANK have performed and
complied with all of their obligations under this Agreement which are to be
performed or complied with by or prior to or on the Closing Date, and (iii)
that all Schedules and Exhibits delivered by CNB and/or BANK to F_& M prior or
as of the Closing Date are true, correct and complete as of the Closing Date.
(b) An Incumbency Certificate for the officers executing the
documents in connection with the transaction contemplated hereby.
(c) Copies of the Articles of Incorporation and Bylaws of CNB
and BANK, duly certified by their respective custodians as true, correct and
complete copies thereof, including any amendments as of the Closing Date.
(d) A written opinion from CNB counsel dated as of the
Closing Date addressed to F & M and F & M Counsel, in form and substance
substantially in the form attached hereto as Exhibit 10.3(d).
(e) Certified copies of resolutions adopted by CNB's board of
directors to the effect that the execution, delivery and performance of this
Agreement and the transactions contemplated by it have been duly and validly
authorized in accordance with the laws of the State of Wisconsin and of the
action taken by the CNB's Shareholders to approve the merger as provided by the
laws of the State of Wisconsin.
(f) Such other documents of transfer, certificates or
authority and other documents as F & M may reasonably request.
10.4 Documents to be Delivered by F & M and Subsidiary. At the
closing F & M and Subsidiary shall deliver the following documents:
(a) Certificates for shares of F & M Common as determined
under Article 3 of this Agreement which condition shall be met by authorization
by F & M to its exchange agent to release such shares to the CNB Shareholders
when all conditions to this transaction have been met or waived. Such
certificates will be in the name of CNB Shareholders entitled to the same in
accordance with their interest in CNB as of the Effective Time provided,
however, that any certificates need not be delivered until such time as the
provisions of paragraph 10.2 have been complied with by the CNB Shareholders.
(b) An Incumbency Certificate relating to all parties
executing documents relating to any of the transactions contemplated hereby on
behalf of F & M and Subsidiary.
(c) A certificate by an officer of F & M that, to the best of
such officer's knowledge, (i) the representations and warranties made by F & M
and Subsidiary in this Agreement are true and correct as of the Closing Date,
(ii) that F & M and Subsidiary have performed and complied with all of their
obligations which are to be performed or complied with by or prior to or as of
the Closing Date and (iii) that all Schedules and Exhibits delivered by F & M
to CNB are true, correct and complete as of the Closing Date.
(d) A written opinion from counsel for F & M and Subsidiary
dated as of the Closing Date addressed to CNB and CNB Counsel in form and
substance substantially in the form attached hereto as Exhibit 10.4(d).
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(e) A written opinion from Securities Counsel dated as of the
Effective Time addressed to F & M and CNB, reasonably satisfactory in form and
substance to F & M Counsel, to the effect that the shares of F & M Common
issuable in the transaction are the subject of an effective Registration
Statement with the SEC, and that no stop order relating to such Registration
Statement has been issued by the SEC and that, to the knowledge of such
counsel, no proceedings for that purpose shall have been initiated or
threatened by the SEC.
(f) Certified copies of the resolutions adopted by F & M's
and Subsidiary's boards of directors to the effect that the execution, delivery
and performance of this Agreement and the transactions contemplated by it have
been duly and validly authorized in accordance with the laws of the State of
Wisconsin.
11. Law Governing.
This Agreement shall be construed and interpreted according to the
laws of the State of Wisconsin.
12. Assignment.
This Agreement may not be assigned in whole or in part without the
written consent of all parties, provided, however, that Subsidiary's
participation in this transaction shall not require any further consent or
authorization.
13. Amendment and Modification.
This Agreement may only be amended or modified by a written agreement
signed by the duly authorized representatives of F & M and CNB.
14. Abandonment.
This Agreement may be terminated and the transaction provided for by
this Agreement may be abandoned at any time before the Closing Date:
(a) If the parties are unable to reach agreement pursuant to
paragraph 3.4(a), or by mutual consent of F & M and CNB;
(b) By F & M if (i) any of the conditions provided for in
Article 8 of this Agreement have not been met and have not been waived in
writing by F & M, or (ii) the F & M Selling Price is more than Thirty-three and
50/100 Dollars ($33.50) per share provided, however, that if this price per
share is exceeded after F & M has publicly announced that it is being acquired
by a third party this right to terminate shall not be applicable; or
(c) By CNB if (i) exercises its rights to terminate under
paragraph 3.4(a), (ii) any of the conditions provided for in Article 9 of this
Agreement have not been met and have not been waived in writing by BANK, (iii)
a public announcement by F & M that an agreement has been reached for F & M
to be acquired by a third party if CNB gives written notice to F & M of its
election to do so within twenty (20) days of the date of such announcement, or
(iv) the F & M Selling Price is less than Twenty-seven and 50/100 Dollars
($27.50) per share.
(d) In the event of a breach of this Agreement, by notice
from the other party to the breaching party as set forth below.
In the event of termination and abandonment by any party as provided
in this Article, written notice shall forthwith be given to the other party
setting forth the breach of this Agreement or the default in performance which
has occurred, or the condition which has not been met. The party to whom the
notice is
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directed shall, if such party is able to effect a satisfaction or cure, have
ten (10) days after such notice is given to satisfy such condition or cure such
breach or default, provided that if such ten (10) day period is not sufficient
and the party is making a diligent effort to satisfy such condition or cure
such breach or default, the time to do so may be extended for such period as
the parties may agree not to exceed thirty (30) days provided however, that the
F & M Selling Price shall be the higher of the price as of the date of the
notice or as of the date on which the default is satisfied or cured. The
termination and/or abandonment of this Agreement shall not alter or diminish
the liability of the party that failed to comply with the conditions of this
Agreement. Each party shall pay its own expenses incident to preparation for
the consummation of this Agreement and the transactions contemplated hereunder.
(e) If this Agreement or the transaction contemplated hereby
is terminated by F & M for any reason other than those set forth in
subparagraphs 14(a) or (b), F & M shall promptly [in any event within five (5)
business days after such termination] pay CNB a fee equal to Five Hundred
Thousand and 00/100 Dollars ($500,000.00).
If this Agreement or the transaction contemplated hereby is terminated
by CNB for any reason other than those set forth in subparagraphs 14(a) or (c),
CNB shall promptly [in any event within five (5) business days after such
termination] pay F & M a fee equal to Five Hundred Thousand and 00/100 Dollars
($500,000.00).
(f) In the event F & M declares a stock dividend or stock
split, the maximum and minimum F & M Selling Price set forth in subparagraphs
(b) and (c), above, and in paragraph 1.12, shall be proportionately adjusted
based upon the stock dividend or stock split.
15. Notices.
All notices, requests, demands, and other communications hereunder
shall be deemed to have been duly given, upon actual delivery, if delivered by
hand; or upon receipt by the addressee, if given by mail (certified mail -
return receipt requested with postage prepaid is required for notice by mail);
or upon receipt by the addressee, if by private courier; or upon receipt of the
transmission by the addressee if by telecopy (with a copy sent by first class
mail):
(a) If to CNB, to Xxxxxxx X. XxXxxxxxxx, c/o The Citizen's
National Bank of Darlington, 000 Xxxxx Xxxxxx, X.X. Xxx 00, Xxxxxxxxxx,
Xxxxxxxxx, FAX: 000-000-0000, with a copy to Xxxx Xxxxxx, Esq., Boardman, Suhr,
Xxxxx & Field, 410 Firstar Plaza, Xxx Xxxxx Xxxxxxxx Xxxxxx, X.X. Xxx 000,
Xxxxxxx, Xxxxxxxxx 00000-0000, FAX: 000-000-0000.
(b) If to F & M or Subsidiary, to Xx. Xxxx X. Xxxxxxx, Xxx
Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxx 00000, FAX: 000-000-0000, with a copy to
Xxxxxxx X. Xxxx, Esq., McCarty, Curry, Xxxxxxx, Xxxxxxx & Xxxx, X.X. Xxx 000,
Xxxxxxxx Xxxxxxxxx 00000, FAX: 000-000-0000.
The place to which notice is to be given may be changed by notice
given in accordance with this Article.
16. Entire Agreement.
This Agreement, with Exhibits, embodies the entire agreement between
the parties hereto with respect to the transaction contemplated herein and
supersedes all prior agreements, written or oral, express or implied and all
negotiations, discussions or other matters between the parties and there have
been and are no agreements representations or warranties between the parties
other than those set forth or provided for herein.
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17. Counterparts.
This Agreement may be executed in two (2) or more partially or fully
executed counterparts, each of which shall be deemed an original and shall bind
the signatory, but all of which together shall constitute but one and the same
instrument.
18. Binding Effect.
This Agreement shall inure to the benefit of and bind the parties and
their respective heirs, beneficiaries, transferees, successors, and assigns.
19. Headings. The headings of this Agreement are inserted for convenience
only and shall not constitute a part hereof.
20. Confidentiality. Except as necessary to take action pursuant to this
Agreement, each party agrees that all information and documents received from
the other party regarding the proposed transaction shall be held in confidence
and that all documents containing such information will be returned upon
request if the parties abandon the transaction. The parties further agree to
use such information only in connection with the proposed transaction
contemplated by this Agreement. This paragraph shall not apply to information
or documents which are, or by law must be made, publicly available. The
parties agree to not publicly disclose this Agreement or its Exhibits or any of
the provisions hereof, except as a part of regulatory filings or pursuant to
press releases and other public statements approved by F & M and CNB.
21. Further Documents.
F & M, Subsidiary, and CNB agree to execute any and all other
documents and to take such other action or corporate proceedings as may be
reasonably necessary or desirable to carry out the terms hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed all as of the day and year first above written.
F & M BANCORPORATION, INC. ("F & M")
By:/s/ Xxxx X. Xxxxxxx
-----------------------------------
Xxxx X. Xxxxxxx, Chairman and CEO
ATTEST:
By:/s/ Xxxxx X. Xxxxx
------------------------------------
Xxxxx X. Xxxxx, Secretary
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F & M MERGER CORPORATION ("Subsidiary")
By:/s/ Xxxxx X. Xxxxxxx
--------------------------------
Xxxx X. Xxxxxxx, Chairman
ATTEST:
By:/s/ Xxxxxx X. Xxxx
--------------------------------
Xxxxxx X. Xxxx, Secretary
CITIZEN'S NATIONAL BANCORPORATION, INC.
("CNB")
By:/s/ Xxxxxxx X. XxXxxxxxxx
--------------------------------
Xxxxxxx X. XxXxxxxxxx, President
ATTEST:
By:/s/ Xxxxxx X. Xxxxxx
---------------------------------
Xxxxxx X. Xxxxxx, Executive
Vice President
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