EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "AGREEMENT") is made and
entered into as of March 25, 2003, by and between InvestorsBancorp, Inc., a
Wisconsin corporation ("INVB"), and Investors Subsidiary, Inc., a Wisconsin
corporation ("NEWCO").
RECITALS
A. INVB is a corporation duly organized and existing under the laws of
the State of Wisconsin, having authorized capital stock consisting of 9,000,000
shares of common stock, par value $0.01 per share (the "INVB COMMON STOCK"), of
which 994,187 shares are currently issued and outstanding, and 1,000,000 shares
of preferred stock, par value $0.01 per share (the "INVB PREFERRED STOCK"), of
which no shares are currently issued and outstanding.
B. Newco is a newly-formed, wholly-owned subsidiary of INVB, duly
organized and existing under the laws of the State of Wisconsin, having
authorized capital stock consisting of 100 shares of common stock, par value
$0.01 per share (the "NEWCO STOCK"), of which one share is currently issued and
outstanding.
C. The boards of directors of INVB and Newco deem it advisable and to
the benefit of INVB and Newco and their respective shareholders that INVB and
Newco participate in a merger (the "MERGER") in accordance with the provisions
of Section 180.1104 of the Wisconsin Business Corporation Law (the "WBCL"),
pursuant to which Newco shall merge with and into INVB and the separate
corporate existence of Newco shall cease.
In consideration of the foregoing premises and the mutual promises,
covenants and agreements hereinafter set forth, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINITIONS. In addition to those terms defined throughout
this Agreement, the following terms, when used herein, shall have the following
meanings.
(a) "AFFILIATE" means with respect to a particular Person, any other
Person that directly or indirectly controls, is directly or indirectly
controlled by, or is directly or indirectly under common control with such
specified Person.
(b) "BUSINESS DAY" means any day except Saturday, Sunday and any day on
which InvestorsBank is authorized or required by law or other government action
to close.
(c) "CODE" means the United States Internal Revenue Code of 1986.
(d) "CONTRACT" means any agreement, contract, obligation, promise or
understanding (whether written or oral and whether express or implied) that is
legally binding.
(e) "CONSENT" means any consent, approval, authorization, clearance,
exemption, waiver, or similar affirmation by any Person pursuant to any
Contract, Legal Requirement, Order or permit.
(f) "DEFAULT" means (i) any breach or violation of, default under,
contravention of, or conflict with, any Contract, Legal Requirement, Order or
permit, (ii) any occurrence of any event that with the passage of time or the
giving of notice or both would constitute a breach or violation of, default
under, contravention of, or conflict with, any Contract, Legal Requirement,
Order or permit, or (iii) any occurrence of any event that, with or without the
passage of time or the giving of notice or both, would give rise to a right of
any Person to exercise any remedy or obtain any relief under, terminate or
revoke, suspend, cancel, or modify or change the current terms of, or
renegotiate, or to accelerate the maturity or performance of, or to increase or
impose any liability under, any Contract, Legal Requirement, Order or permit,
where, in any such event, such Default is reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on INVB or Newco, as
applicable.
(g) "EXCHANGE ACT" means the Securities Exchange Act of 1934.
(h) "GAAP" means U.S. generally accepted accounting principles,
consistently applied during the periods involved.
(i) "INDIVIDUAL AFFILIATE" means, with respect to an individual, (i)
such individual's spouse and their respective siblings, (ii) such individual's
children, and grandchildren, and any of their respective spouses, (iii) any
trust primarily for the benefit of any of the foregoing, and (iv) any profit
sharing or similar plan or trust or retirement account in which such individual
participates.
(j) "KNOWLEDGE" with respect to:
(i) an individual means that such person will be deemed to have
"Knowledge" of a particular fact or other matter if such individual is
actually aware of such fact or other matter; and
(ii) a Person (other than an individual) means that such Person will
be deemed to have "Knowledge" of a particular fact or other matter if any
individual who is serving as a director or officer or manager of such
Person (or in any similar capacity) has Knowledge of such fact or other
matter.
(k) "LEGAL REQUIREMENT" means any federal, state, local, municipal,
foreign, international, multinational or other administrative order,
constitution, law, ordinance, principle of common law, regulation, statute or
treaty, including the United States banking laws, rules and regulations and the
banking laws, rules and regulations of the State of Wisconsin.
(l) "MATERIAL ADVERSE EFFECT," with respect to any Person, means any
event, change or occurrence that, individually or together with any other event,
change of occurrence, has a material adverse impact on (i) the financial
position, business, or results of operations of such Person and its
subsidiaries, taken as a whole, or (ii) the ability of such Person to perform
its obligations under this Agreement or to consummate the Merger, in each case
other than any change, effect, event or occurrence to the extent arising from or
relating to (A) the United States or the banking industry in general, (B)
changes in GAAP or regulatory accounting principals generally applicable to
banks and their holding companies, (C) actions taken pursuant to the obligations
of the parties expressly set forth in this Agreement or (D) general economic
conditions.
(m) "ORDER" means any award, decision, directive, injunction, judgment,
memorandum, order, regulatory agreement, ruling, subpoena or verdict entered,
issued, made or rendered by any court, administrative or other governmental
agency, including any Regulatory Authority, or by any arbitrator.
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(n) "PERSON" means any individual, corporation (including any
non-profit corporation), general or limited partnership, limited liability
company, joint venture, estate, trust, association, organization, labor union or
other entity or any Regulatory Authority.
(o) "PROCEEDING" means any action, arbitration, audit, hearing,
investigation, litigation or suit (whether civil, criminal, administrative,
investigative or informal) commenced, brought, conducted or heard by or before,
or otherwise involving, any judicial or governmental authority, including a
Regulatory Authority, or arbitrator, but shall not include regular, periodic
examinations of depository institutions and their Affiliates by Regulatory
Authorities.
(p) "REGULATORY AUTHORITIES" means any federal, state or local
governmental body, agency or authority that under applicable statutes and
regulations: (i) has supervisory, judicial, administrative, police, taxing or
other power or authority over Newco or INVB; (ii) is required to approve, or
give its Consent to the Merger; or (iii) with which a filing must be made in
connection therewith, including in any case, the SEC, the Board of Governors of
the Federal Reserve System and the Federal Deposit Insurance Corporation.
(q) "SCHONATH SHARES" means the shares of INVB Common Stock held by
Xxxxxx Xxxxxxxx and his Individual Affiliates.
(r) "SEC" means the United States Securities and Exchange Commission.
(s) "THREATENED" means a claim, Proceeding, dispute, action or other
matter for which any demand or statement has been made (orally or in writing) or
any notice has been given (orally or in writing).
SECTION 1.2 PRINCIPLES OF CONSTRUCTION.
(a) In this Agreement, unless otherwise stated or the context otherwise
requires, the following uses apply: (i) actions permitted under this Agreement
may be taken at any time and from time to time in the actor's sole discretion;
(ii) references to a statute shall refer to the statute and any successor
statute, as amended from time to time, and to all regulations promulgated under
or implementing the statute or successor, as in effect at the relevant time;
(iii) in computing periods from a specified date to a later specified date, the
words "from" and "commencing on" (and the like) mean "from and including," and
the words "to," "until" and "ending on" (and the like) mean "to, but excluding";
(iv) references to a governmental or quasi-governmental agency, authority or
instrumentality shall also refer to a regulatory body that succeeds to the
functions of the agency, authority or instrumentality; (v) indications of time
of day mean Waukesha, Wisconsin time; (vi) "including" means "including, but not
limited to"; (vii) all references to sections, schedules and exhibits are to
sections, schedules and exhibits in or to this Agreement unless otherwise
specified; (viii) all words used in this Agreement will be construed to be of
such gender or number as the circumstances require; and (ix) the captions and
headings of articles, sections, schedules and exhibits appearing in or attached
to this Agreement have been inserted solely for convenience of reference and
shall not be considered a part of this Agreement nor shall any of them affect
the meaning or interpretation of this Agreement or any of its provisions.
(b) All accounting terms not specifically defined herein shall be
construed in accordance with GAAP.
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ARTICLE II
BASIC TERMS OF TRANSACTION
SECTION 2.1 THE MERGER. Subject to the terms and conditions of this
Agreement, at the Effective Time (as defined below), Newco shall be merged with
and into INVB pursuant to the provisions of Section 180.1104 of the WBCL, with
INVB continuing as the surviving corporation (INVB, as the surviving corporation
resulting from the Merger, the "SURVIVING CORPORATION").
SECTION 2.2 TIME OF CLOSING. The closing of the transactions
contemplated hereby (the "CLOSING") will take place at 10:00 a.m., Central time,
on the date that the Effective Time occurs, or at such other time as the parties
may mutually agree. The Closing shall be held at such location as may be
mutually agreed by the parties.
SECTION 2.3 EFFECTIVE TIME. The Merger and the other transactions
contemplated by this Agreement shall become effective on the date and at the
time (the "EFFECTIVE TIME") the Articles of Merger ("ARTICLES OF MERGER")
reflecting the Merger shall become effective with the Secretary of State of the
State of Wisconsin.
SECTION 2.4 WBCL. At and after the Effective Time, the Merger shall
have the effects as set forth in the applicable provisions of the WBCL, this
Agreement and the Articles of Merger. From and after the Effective Time, the
Surviving Corporation shall possess all of the rights, powers, privileges and
franchises and be subject to all of the obligations, liabilities, restrictions
and disabilities of INVB and Newco, all as provided under the WBCL, this
Agreement and the Articles of Merger.
SECTION 2.5 ARTICLES OF INCORPORATION. At the Effective Time, the
Articles of Incorporation of INVB, as in effect immediately prior to the
Effective Time, shall be amended and restated in the form attached as Exhibit A,
by operation of this Agreement and by virtue of the Merger, without any further
action by the shareholders or directors of INVB and, as so amended, such
Articles of Incorporation shall be the Articles of Incorporation of the
Surviving Corporation, until duly amended in accordance with the terms thereof
and the WBCL.
SECTION 2.6 BYLAWS. At the Effective Time, the bylaws of INVB, as in
effect immediately prior to the Effective Time, shall be amended and restated in
the form attached as Exhibit B, by operation of this Agreement and by virtue of
the Merger, without any further action by the shareholders or directors of INVB
and, as so amended, such bylaws shall be the bylaws of the Surviving
Corporation, until duly amended in accordance with the terms thereof, the
Articles of Incorporation of the Surviving Corporation and the WBCL.
SECTION 2.7 DIRECTORS AND OFFICERS. The directors of Newco holding
office immediately prior to the Effective Time and the officers of INVB holding
office immediately prior to the Effective Time shall, from and after the
Effective Time, be the initial directors and officers of the Surviving
Corporation until their successors have been duly elected or appointed and
qualified, or until their earlier death, resignation or removal, in accordance
with the Surviving Corporation's Articles of Incorporation and bylaws.
SECTION 2.8 OFFICES. The offices and facilities of INVB immediately
prior to the Merger shall be the offices and facilities of the Surviving
Corporation immediately following the Merger.
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ARTICLE III
EFFECT OF THE MERGER ON THE CAPITAL STOCK OF INVB AND NEWCO
SECTION 3.1 INVB STOCK. Subject to the provisions of this Agreement, by
virtue of the Merger and without any action on the part of the holder thereof,
at the Effective Time, (a) each share of INVB Common Stock owned of record by
each shareholder of INVB, other than any Schonath Shares, shall cease to be
outstanding and shall be converted into the right to receive from INVB a cash
payment in the amount of $14.20 (less any required payment of taxes, the "CASH
PAYMENT"); and (b) each of the Schonath Shares will represent one share of
common stock of the Surviving Corporation.
SECTION 3.2 NEWCO STOCK. Subject to the provisions of this Agreement,
by virtue of the Merger and without any action on the part of the holder
thereof, at the Effective Time, each share of Newco Stock will be canceled, and
the holder thereof will be entitled to receive $1.00 in cash per share of Newco
Stock.
SECTION 3.4 OPTIONS.
(a) INVB shall take all actions necessary to provide that, immediately
prior to the Effective Time, (i) each then outstanding option (each, an "OPTION"
and collectively, the "OPTIONS") to purchase or acquire shares of INVB Common
Stock under the InvestorsBancorp Inc. 1997 Equity Incentive Plan (the "EQUITY
PLAN"), whether or not then exercisable or vested, shall become fully
exercisable and vested, (ii) each Option which is then outstanding shall be
canceled as of the Effective Time and (iii) in consideration of such
cancellation, each Option shall, as of the Effective Time, represent for all
purposes only the right to receive in cash, with respect to each Option, an
amount (net of any applicable withholding tax) equal to the differences between
the Cash Payment and the per share exercise price of such Option to the extent
such difference is a positive number, multiplied by the number of shares of INVB
Common Stock subject to such Option (such amount in cash as described above
being hereinafter referred to as the "OPTION PAYMENT"), payable as provided in
SECTION 3.4(b).
(b) Upon the Effective Time, INVB shall pay to each holder of an Option
the Option Payment (net of any applicable withholding tax and without any
interest thereon) in respect thereof; provided, however, that with respect to
any Person subject to Section 16(a) of the Exchange Act, such Option Payment
shall not be payable until the first date payment can be made without liability
to such Person under Section 16(b) of the Exchange Act, but shall be paid as
soon as practicable thereafter. No interest shall be paid or accrued on the
Option Payment. Until settled in accordance with the provisions of this SECTION
3.4(b), each Option shall be deemed at any time after the Effective Time to
represent for all purposes only the right to receive the Option Payment.
(c) Prior to the Effective Time, INVB shall take all action necessary
(including causing the Board of Directors of INVB or any subsidiary (or any
respective committees thereof) to take
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such actions) as are allowed by the Equity Plan to ensure that (i) following the
Effective Time, no holder of an Option nor any party to or participant in the
Equity Plan shall have any right thereunder to acquire equity securities of INVB
or any subsidiary and (ii) the Equity Plan shall terminate as of the Effective
Time.
SECTION 3.5 WARRANTS. At the Effective Time, the warrant (the
"WARRANT") issued to the Schonath Family Partnership, a limited partnership, and
exercisable for the purchase of 105,000 shares of INVB Common Stock, shall
remain outstanding and become an obligation of the Surviving Corporation.
SECTION 3.6 STOCK TRANSFER BOOKS. At the Effective Time, the stock
transfer books of INVB shall be closed and there shall be no further
registration of transfers of shares of INVB Common Stock thereafter on the
records of INVB.
ARTICLE IV
EXCHANGE OF SHARES
SECTION 4.1 PAYING AGENT. Prior to the Effective Time, INVB shall
appoint a United States bank or trust company to act as paying agent (the
"PAYING AGENT") for the payment of funds in amounts and at times necessary for
the payment of the Cash Payment to the shareholders of INVB, and immediately
following the Effective Time, the Surviving Corporation shall deposit, or shall
cause to be deposited, with the Paying Agent the funds, in amounts and at times
necessary for the payment of the Cash Payment to the shareholders of INVB, in a
separate fund (the "PAYMENT FUND") established for the benefit of the
shareholders of INVB, for payment in accordance with this ARTICLE IV, through
the Paying Agent. If for any reason the Payment Fund is inadequate to pay the
amounts to which holders of shares of INVB Common Stock shall be entitled under
this Agreement, the Surviving Corporation shall take all steps necessary to
deposit, or cause to be deposited, in trust additional cash with the Paying
Agent sufficient to make all payments required under this Agreement, and the
Surviving Corporation shall in any event be liable for payment thereof. The
Payment Fund shall not be used for any purpose except as expressly provided in
this Agreement.
SECTION 4.2 EXCHANGE PROCEDURES.
(a) Promptly after the Effective Time, the Surviving Corporation shall
cause the Paying Agent to mail to each holder of record of a certificate or
certificates that represented shares of INVB Common Stock immediately prior to
the Effective Time (the "CERTIFICATES") appropriate transmittal materials and
instructions (which shall specify that delivery shall be effected, and risk of
loss and title to such Certificates shall pass, only upon proper delivery of
such Certificates to the Paying Agent). Upon surrender of a Certificate for
cancellation to the Paying Agent together with such letter of transmittal, duly
executed, or an "agents message" in the case of a book entry transfer, and such
other customary documents as may be required pursuant to such instructions, the
holder of such Certificate shall be entitled to receive in respect thereof cash
in an amount equal to the product of (a) the number of shares of INVB Common
Stock formerly represented by such Certificate, multiplied by (b) the Cash
Payment, less any required withholding taxes, and the Certificate so surrendered
shall forthwith be cancelled. No interest shall be paid or accrued on the Cash
Payment payable upon the surrender of any Certificate. If any holder of a
Certificate shall be unable to surrender such holder's Certificate because such
Certificate has been lost, mutilated or destroyed, such holder may deliver in
lieu thereof an affidavit and indemnity bond in form and substance and with
surety reasonably satisfactory to the Surviving Corporation and the Paying
Agent. If payment is to be made to a Person other than the Person in whose name
the surrendered Certificate is registered, it shall be a condition of payment
that the Certificate so surrendered shall be properly endorsed or otherwise in
proper form for transfer and that the Person requesting such payment shall pay
any transfer or other taxes required by reason of the payment to a
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Person other than the registered holder of the surrendered Certificate or
establish to the satisfaction of the Surviving Corporation that such tax has
been paid or is not applicable.
SECTION 4.3 DEDUCTIONS/WITHHOLDING. Each of the Surviving Corporation
and the Paying Agent shall be entitled to deduct and withhold from the
consideration otherwise payable pursuant to this Agreement to any holder of
shares of INVB Common Stock such amounts, if any, as it 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 any amounts are
so withheld by the Surviving Corporation or the Paying Agent, as the case may
be, such withheld amounts shall be treated for all purposes of this Agreement as
having been paid to the holder of the shares of INVB Common Stock in respect of
which such deduction and withholding was made by the Surviving Corporation or
the Paying Agent, as the case may be.
SECTION 4.4 TERMINATION OF PAYMENT FUND; INTEREST. Any portion of the
Payment Fund that remains undistributed to the holders of shares of INVB Common
Stock for 180 days after the Effective Time shall be delivered to the Surviving
Corporation, upon demand, and any holder of INVB Common Stock who has not
theretofore complied with this ARTICLE IV and the instructions set forth in the
letter of transmittal mailed to such holder after the Effective Time shall
thereafter look only to the Surviving Corporation for payment of the Cash
Payment to which such holder is entitled. All interest accrued in respect of the
Payment Fund shall inure to the benefit of and be paid to the Surviving
Corporation.
SECTION 4.5 LIMITATION OF LIABILITY. Any other provision of this
Agreement notwithstanding, neither the Surviving Corporation nor the Paying
Agent shall be liable to a holder of INVB Common Stock for any amounts paid or
property delivered in good faith to a public official pursuant to any applicable
abandoned property, escheat or similar law.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF INVB
SECTION 5.1 CORPORATE ORGANIZATION, AUTHORIZATION, ETC. INVB is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Wisconsin and has full corporate power and authority to conduct
its business as it is now being conducted and to own, lease and operate its
material assets. INVB is duly registered with the Board of Governors of the
Federal Reserve System as a bank holding company under the Bank Holding Company
Act of 1956. INVB is duly qualified or licensed to do business as a foreign
corporation and is in good standing in the states of the United States and
foreign jurisdictions where the character of its assets or the nature or conduct
of its business makes such qualification or licensing necessary, except for
jurisdictions in which the failure to be so qualified, licensed and in good
standing would not have a Material Adverse Effect on INVB. INVB has full
corporate power and authority to enter into this Agreement and to consummate the
transactions contemplated hereby. This Agreement has been duly executed and
delivered by INVB and is a valid and binding agreement of INVB in accordance
with its terms, subject to laws relating to creditors' rights generally.
SECTION 5.2 AUTHORIZED AND OUTSTANDING STOCK. The authorized capital
stock of INVB consists of 9,000,000 shares of INVB Common Stock, and 1,000,000
shares of INVB Preferred Stock. As of the date hereof, (i) 994,187 shares of
INVB Common Stock are outstanding, and all of such shares are fully paid,
validly issued and nonassessable, and (ii) no shares of INVB Preferred Stock are
outstanding. As of the date hereof, 100,000 shares of INVB Common Stock are
reserved for issuance pursuant to the Equity Plan, of which 20,690 were subject
to outstanding Options, and 105,000 shares of INVB Common Stock are reserved for
issuance in connection with the Warrant. Except as otherwise provided herein,
INVB does not have outstanding, and is not bound by, any subscriptions, options,
warrants, calls, commitments or agreements to issue any additional shares of its
capital stock, including any right of conversion or exchange
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under any outstanding security or other instrument, and INVB is not obligated to
issue any shares of its capital stock for any purpose. There are no unsatisfied
preemptive rights with respect to INVB Stock.
SECTION 5.3 CONSENTS OF REGULATORY AUTHORITIES. Other than (i) filings
with the SEC required for "going private" transactions; (ii) filings and
Consents required by the Board of Governors of the Federal Reserve System; (iii)
the filing of this Agreement or Articles of Merger with corporate and Regulatory
Authorities, as appropriate; and (iv) other Consents, filings or notifications
that, if not obtained or made, are not reasonably likely to have, individually
or in the aggregate, a Material Adverse Effect on INVB, no notice to, filing
with, or Consent of, any public body or authority is necessary for the
consummation by INVB of the Merger and the other transactions contemplated by
this Agreement.
SECTION 5.4 NO BREACH. Neither the execution and delivery of this
Agreement by INVB, nor the consummation by INVB of the transactions contemplated
hereby, nor compliance by INVB with any of the provisions hereof, will (i)
conflict with or result in a breach of any provision of INVB's Articles of
Incorporation or bylaws or any resolution adopted by the board of directors or
the shareholders of INVB, or (ii) constitute or result in a Default under or
result in the creation of any lien on any asset of INVB under, any Contract or
permit of INVB, where such Default or lien is reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on INVB.
SECTION 5.5 COMPLIANCE WITH LAWS. INVB has in effect all permits
necessary for it to own, lease or operate its material assets and to carry on
its business as now conducted, except for those permits the absence of which are
not reasonably likely to have, individually or in the aggregate, a Material
Adverse Effect on INVB, and there has occurred no Default under any such permit,
other than Defaults which could not reasonably be anticipated to have,
individually or in the aggregate, a Material Adverse Effect on INVB. INVB:
(a) is not in Default under any of the provisions of its Articles of
Incorporation or bylaws;
(b) is not in Default under any Legal Requirement, Order or permit
applicable to its business, except for Defaults that could not reasonably be
anticipated to have, individually or in the aggregate, a Material Adverse Effect
on INVB; and
(c) since January 1, 2001, has not received any notification or
communication from any agency or department of federal, state or local
government or any Regulatory Authority or the staff thereof (i) asserting that
INVB is not, or may not be, in compliance with any Legal Requirement, where such
noncompliance is reasonably likely to have, individually or in the aggregate, a
Material Adverse Effect on INVB, (ii) threatening to revoke any permits, the
revocation of which is reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on INVB, or (iii) requiring INVB to enter
into or consent to the issuance of a cease and desist order, injunction, formal
agreement, directive, commitment, or memorandum of understanding, or to adopt
any board resolution or similar undertaking, which restricts materially the
conduct of its business, or in any manner relates to its employment decisions,
its employment safety practices, its capital adequacy, its credit or reserve
policies, its management, or the payment of dividends.
SECTION 5.6 PROCEEDINGS. There is no Proceeding instituted or pending,
or, to the Knowledge of INVB, Threatened (or unasserted but considered probable
of assertion and that if asserted would have at least a reasonable possibility
of an unfavorable outcome) against INVB, or against any director or officer in
their capacities as such, or against any asset, interest, or right of any of
them that is reasonably likely to have, individually or in the aggregate, a
Material Adverse Effect on INVB, nor are there any Orders outstanding against
INVB that are reasonably likely to have, individually or in the aggregate, a
Material Adverse Effect on INVB.
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SECTION 5.7 TAKEOVER LAWS. INVB has taken all necessary action to
exempt the transactions contemplated by this Agreement from, or if necessary to
challenge the validity or applicability of, any applicable "fair price,"
"business combination," "control share," or other anti-takeover laws
(collectively, "TAKEOVER LAWS").
SECTION 5.8 BOARD ACTION. The Board of Directors of INVB, at a meeting
duly called and held, has determined that this Agreement and the transactions
contemplated hereby, including the Merger, are fair to and in the best interests
of the shareholders of INVB, and approved this Agreement and the transactions
contemplated hereby, including the Merger.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF NEWCO
Newco hereby represents and warrants to INVB that:
SECTION 6.1 CORPORATE ORGANIZATION, AUTHORIZATION, ETC. Newco is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Wisconsin and has full corporate power and authority to enter
into this Agreement and to consummate the transactions contemplated hereby.
Newco is duly qualified or licensed to do business as a foreign corporation and
is in good standing in the states of the United States and foreign jurisdictions
where the character of its assets or the nature or conduct of its business makes
such qualification or licensing necessary, except for jurisdictions in which the
failure to be so qualified, licensed and in good standing would have a Material
Adverse Effect on Newco. This Agreement has been duly executed and delivered by
Newco and is a valid and binding agreement of Newco in accordance with its
terms, subject to laws relating to creditors' rights generally.
SECTION 6.2 AUTHORIZED AND OUTSTANDING STOCK. The authorized capital
stock of Newco consists of 100 shares of common stock, par value $0.01 per
share. As of the date hereof, one share of Newco Stock outstanding, and SUCH
share is fully paid, validly issued and nonassessable. Newco does not have
outstanding, and is not bound by, any subscriptions, options, warrants, calls,
commitments or agreements to issue any additional shares of its capital stock,
including any right of conversion or exchange under any outstanding security or
other instrument, and Newco is not obligated to issue any shares of its capital
stock for any purpose. There are no unsatisfied preemptive rights in respect of
Newco Stock.
SECTION 6.3 CONSENTS OF REGULATORY AUTHORITIES. Other than (i) filings
with the SEC required for "going private" transactions; (ii) the filing of this
Agreement or Articles of Merger with corporate and Regulatory Authorities, as
appropriate; and (iii) other Consents, filings or notifications that, if not
obtained or made are not reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on Newco, no notice to, filing with, or
Consent of, any public body or authority is necessary for the consummation by
Newco of the Merger and the transactions contemplated by this Agreement.
SECTION 6.4 NO BREACH. Neither the execution and delivery of this
Agreement by Newco, nor the consummation by Newco of the transactions
contemplated hereby, nor compliance by Newco with any of the provisions hereof,
will (i) conflict with or result in a breach of any provisions of Newco'
Articles of Incorporation or bylaws, or (ii) constitute or result in a Default
under or result in the creation of any lien on any asset of Newco under, any
Contract or permit of Newco, where such Default or lien is reasonably likely to
have, individually or in the aggregate, a Material Adverse Effect on Newco.
SECTION 6.5 COMPLIANCE WITH LAWS. Newco:
(a) is not in Default under any of the provisions of its Articles of
Incorporation or bylaws;
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(b) is not in Default under any Legal Requirement, except for Defaults
that could not reasonably be anticipated to have, individually or in the
aggregate, a Material Adverse Effect on Newco; and
(c) since its incorporation, has not received any notification or
communication from any agency or department of federal, state, or local
government or any Regulatory Authority or the staff thereof asserting that Newco
is not, or may not be, in compliance with any Legal Requirement, where such
noncompliance is reasonably likely to have, individually or in the aggregate, a
Material Adverse Effect on Newco.
SECTION 6.6 PROCEEDINGS. There is no Proceeding instituted or pending,
or, to the Knowledge of Newco, Threatened (or unasserted but considered probable
of assertions and that if asserted would have at least a reasonable possibility
of an unfavorable outcome) against Newco, or against any director or officer in
their capacities as such, or against any asset, interest, or right of Newco that
is reasonably likely to have, individually or in the aggregate, a Material
Adverse Effect on Newco, nor are there any Orders outstanding against Newco,
that are reasonably likely to have, individually or in the aggregate, a Material
Adverse Effect on Newco.
SECTION 6.7 TAKEOVER LAWS. Newco has taken all necessary action to
exempt the transactions contemplated by this Agreement from, or if necessary to
challenge the validity or applicability of, any applicable Takeover Laws.
SECTION 6.8 BOARD ACTION. The Board of Directors of Newco, at a meeting
duly called and held, has by unanimous vote of the directors present (who
constitute all of the directors then in office) adopted this Agreement and the
transactions contemplated hereby, including the Merger.
ARTICLE VII
OBLIGATIONS PRIOR AND SUBSEQUENT TO EFFECTIVE TIME
SECTION 7.1 SCHEDULE 13E-3. As promptly as practicable following the
date of this Agreement, INVB and Newco shall file with the SEC, and shall use
their reasonable best efforts to cause any of their Affiliates engaging in this
transaction to file with the SEC, a Rule 13E-3 Transaction Statement on Schedule
13E-3.
SECTION 7.2 REPORTS. Each of INVB and Newco shall file all reports
required to be filed by it with Regulatory Authorities between the date of this
Agreement and the Effective Time and shall deliver to the other party copies of
all such reports promptly after the same are filed. As of their respective
dates, any such reports will comply in all material respects with all Legal
Requirements and will not 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.
SECTION 7.3 CONSENTS OF REGULATORY AUTHORITIES. INVB and Newco shall
cooperate with each other and use their reasonable efforts to promptly prepare
and file all necessary documentation, to effect all applications, notices,
petitions and filings and to obtain as promptly as practicable all Consents of
all Regulatory Authorities and other Persons that are necessary or advisable to
consummate the transactions contemplated by this Agreement, including the
Merger. The parties agree that they will consult with each other with respect to
the obtaining of all Consents of all Regulatory Authorities and other Persons
necessary or advisable to consummate the transactions contemplated by this
Agreement and each party will keep the other apprised of the status of matters
relating to contemplation of the transactions contemplated herein. Each party
also shall promptly advise the other upon receiving any communication from any
Regulatory Authority whose Consent is required for consummation of the
transactions contemplated by this Agreement
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that causes such party to believe that there is a reasonable likelihood that any
requisite Consent will not be obtained or that the receipt of any such Consent
will be materially delayed.
SECTION 7.4 AGREEMENT AS TO EFFORTS TO CONSUMMATE. Subject to the terms
and conditions of this Agreement, each of INVB and Newco agrees to use, and to
cause its subsidiaries, if any, to use, its reasonable efforts to take, or cause
to be taken, all actions, and to do, or cause to be done, all things necessary,
proper, or advisable under applicable Legal Requirements to consummate and make
effective, as soon as reasonably practicable after the date of this Agreement,
the transactions contemplated by this Agreement, including using its reasonable
efforts to lift or rescind any Order adversely affecting its ability to
consummate the transactions contemplated herein and to cause to be satisfied the
conditions referred to in ARTICLE VIII; provided, however, that nothing herein
shall preclude either party from exercising its rights under this Agreement.
SECTION 7.5 PRESS RELEASES. INVB and Newco shall consult with each
other as to the form and substance of any press release or other public
disclosure materially related to this Agreement; provided, however, that nothing
in this SECTION 7.5 shall prohibit any party from making any disclosure that is
necessary or advisable in order to comply with such party's disclosure
obligations under any applicable Legal Requirements.
SECTION 7.6 FURTHER ASSURANCES. Each party hereto agrees to execute and
deliver such instruments and take such other party may reasonably require in
order to carry out the intent of this Agreement. Each party shall use its best
efforts to perform and fulfill all conditions and obligations on its part to be
performed or fulfilled under this Agreement and to effect the Merger in
accordance with the terms and conditions of this Agreement.
ARTICLE VIII
CONDITIONS PRECEDENT TO OBLIGATIONS OF INVB
The obligation of INVB to consummate the Merger and to take the other
actions required to be taken by INVB at the Effective Time are subject to the
satisfaction of each of the following conditions (any of which may be waived by
INVB, in whole or in part):
SECTION 8.1 ACCURACY OF REPRESENTATIONS AND WARRANTIES. All of the
representations and warranties of Newco set forth in this Agreement shall be
true and correct in all material respects with the same force and effect as if
all of such representations and warranties were made at the Effective Time,
provided, however, that to the extent such representations and warranties
expressly relate to an earlier date, such representations shall be true and
correct in all material respects on and as of such earlier date, and provided
further, that to the extent that such representations and warranties are made in
this Agreement subject to a standard of materiality or Knowledge, such
representations and warranties shall be true and correct in all respects.
SECTION 8.2 NEWCO'S PERFORMANCE. Newco shall have performed or complied
in all material respects with all of the covenants and obligations to be
performed or complied with by it under the terms of this Agreement on or prior
to the Effective Time, provided, however, that to the extent performance and
compliance with such covenants and obligations are subject in this Agreement to
a standard of materiality, Newco shall have performed and complied in all
respects with such covenants and obligations.
SECTION 8.3 DOCUMENTS SATISFACTORY. All proceedings, corporate or
other, to be taken by Newco in connection with the Merger, and all documents
incident thereto, shall be reasonably satisfactory in form and substance to
INVB, and Newco shall have made available to INVB for examination the originals
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or true and correct copies of all records and documents relating to the business
and affairs of Newco that INVB may reasonably request in connection with said
transactions.
SECTION 8.4 NO PROCEEDINGS. Since the date of this Agreement, there
must not have been commenced or Threatened against Newco or INVB, or against any
of the Affiliates of INVB any Proceeding: (a) involving any challenge to, or
seeking damages or other relief in connection with, the Merger; or (b) that
would reasonably be expected to have the effect of preventing, delaying, making
illegal or otherwise interfering with the Merger; or (c) that would reasonably
be expected to have a Material Adverse Effect on Newco.
SECTION 8.5 CONSENTS. Any Consents required to be secured by either
party by the terms of this Agreement or otherwise reasonably necessary in the
opinion of INVB to consummate the Merger and all necessary regulatory approvals
shall have been obtained and shall be reasonably satisfactory to INVB, and all
applicable waiting periods shall have expired.
SECTION 8.6 NO INJUNCTION. There shall be no Legal Requirement or any
injunction or other Order that has been adopted or issued, or has otherwise
become effective, since the date of this Agreement that prohibits the Merger.
ARTICLE IX
CONDITIONS PRECEDENT TO OBLIGATIONS OF NEWCO
Newco's obligation to consummate the Merger and to take the other
actions required to be taken by Newco at the Closing are subject to the
satisfaction, at or prior to the Closing, of each of the following conditions
(any of which may be waived by Newco, in whole or in part):
SECTION 9.1 ACCURACY OF REPRESENTATIONS AND WARRANTIES. All of the
representations and warranties of INVB set forth in this Agreement shall be true
and correct in all material respects with the same force and effect as if all of
such representations and warranties were made at the Effective Time, provided,
however, that to the extent such representations and warranties expressly relate
to an earlier date, such representations shall be true and correct in all
material respects on and as of such earlier date, and provided further, that to
the extent that such representations and warranties are made in this Agreement
subject to a standard of materiality or Knowledge, such representations and
warranties shall be true and correct in all respects.
SECTION 9.2 INVB'S PERFORMANCE. INVB shall have performed or complied
in all material respects with all of the covenants and obligations to be
performed or complied with by it, under the terms of this Agreement on or prior
to the Effective Time, provided, however, that to the extent performance and
compliance with such covenants and obligations are subject in this Agreement to
a standard of materiality.
SECTION 9.3 DOCUMENTS SATISFACTORY. All proceedings, corporate or
other, to be taken by INVB in connection with the Merger, and all documents
incident thereto, shall be reasonably satisfactory in form and substance to
Newco.
SECTION 9.4 NO PROCEEDINGS. Since the date of this Agreement, there
must not have been commenced or Threatened against Newco or INVB, or against any
of the Affiliates of Newco any Proceeding: (a) involving any challenge to, or
seeking damages or other relief in connection with, the Merger; or (b) that
would reasonably be expected to have the effect of preventing, delaying, making
illegal or otherwise interfering with the Merger; or (c) that would reasonably
be expected to have a Material Adverse Effect on INVB.
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SECTION 9.5 CONSENTS. Any Consents required to be secured by either
party by the terms of this Agreement or otherwise reasonably necessary in the
opinion of Newco to consummate the Merger and all necessary regulatory approvals
shall have been obtained and shall be reasonably satisfactory to Newco, and all
applicable waiting periods shall have expired.
SECTION 9.6 NO INJUNCTION. There shall be no Legal Requirement or any
injunction or other Order that has been adopted or issued, or has otherwise
become effective, since the date of this Agreement that prohibits the Merger.
ARTICLE X
TERMINATION
SECTION 10.1 RIGHT OF TERMINATION. Anything herein to the contrary
notwithstanding, prior to filing of this Agreement or Articles of Merger with
the Secretary of State of the State of Wisconsin, this Agreement may be
terminated and the transactions contemplated hereby may be abandoned at any time
by the mutual consent in writing of the boards of directors of INVB and Newco.
SECTION 10.2 EFFECT OF TERMINATION. If this Agreement is terminated
pursuant to this ARTICLE X, the same shall be of no further force or effect and
there shall be no liability by reason of this Agreement or the termination
thereof on the part of Newco, INVB or any of the directors, officers, employees,
or agents, or shareholders of any of them, except as to any liability for breach
of any duty, representation, warranty or obligation under this Agreement arising
prior to the date of termination.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 GOVERNING LAW. All questions concerning the construction,
validity and interpretation of this Agreement, and the performance of the
obligations imposed by this Agreement shall be governed by the State of
Wisconsin applicable to Contracts made and wholly to be performed in such state
without regard to conflicts of laws.
SECTION 11.2 BROKERS. Except for Xxxxxx Xxxxxxx Xxxxxxxxx LLP, each of
INVB and Newco represents and warrants that neither it not any of its officers,
directors, employees or Affiliates has employed any broker or finder or incurred
any liability for any financial advisory fees, investment bankers' fees,
brokerage fees, commissions or finders' fees in connection with this Agreement
or the transactions contemplated hereby.
SECTION 11.3 ASSIGNMENTS, SUCCESSORS AND NO THIRD PARTY RIGHTS. No
party may assign any of its rights under this Agreement to any other Person
without the prior written consent of the other party, which consent shall not be
unreasonably withheld or delayed. Subject to the preceding sentence, this
Agreement and every representation, warranty, covenant, agreement and provision
hereof shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and permitted assigns. Nothing expressed or referred
to in this Agreement will be construed to give any Person other than the parties
to this Agreement any legal or equitable right, remedy or claim under or with
respect to this Agreement or any provision of this Agreement. This Agreement and
all of its provisions and conditions are for the sole and exclusive benefit of
the parties to this Agreement and their successors and assigns.
SECTION 11.4 WAIVER. The rights and remedies of the parties to this
Agreement are cumulative and not alternative. Neither the failure nor any delay
by any party in exercising any right, power or privilege under this Agreement or
the documents referred to in this Agreement will operate as a waiver of such
right, power or privilege, and no single or partial exercise of any such right,
power or privilege will
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preclude any other or further exercise of such right, power or privilege or the
exercise of any other right, power or privilege. To the maximum extent permitted
by applicable law: (a) no claim or right arising out of this Agreement or the
documents referred to in this Agreement can be discharged by one party, in whole
or in part, by a waiver or renunciation of the claim or right unless in writing
signed by the other party; (b) no waiver that may be given by a party will be
applicable except in the specific instance for which it is given; and (c) no
notice to or demand on one party will be deemed to be a waiver of any obligation
of such party or of the right of the party giving such notice or demand to take
further action without notice or demand as provided in this Agreement or the
documents referred to in this Agreement.
SECTION 11.5 MODIFICATION. This Agreement may only be amended by a
written agreement executed by both parties.
SECTION 11.6 NOTICES. All notices, consents, waivers and other
communications under this Agreement must be in writing (which shall include
telecopy communication) and will be deemed to have been duly given if delivered
by hand or by nationally recognized overnight delivery service (receipt
requested), mailed by certified mail (return receipt requested) with first class
postage prepaid or by facsimile if confirmed immediately thereafter by also
mailing a copy of any notice, request or other communication by mail as required
in this Section:
(a) If to INVB, to:
InvestorsBancorp, Inc.
X000 X0000 Xxxxx Xxxx
Xxxxxxxx, XX 00000-0000
Attention: Xx. Xxxxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
(b) if to Newco, to:
Investors Subsidiary, Inc.
X000 X0000 Xxxxx Xxxx
Xxxxxxxx, XX 00000-0000
Attention: Xx. Xxxxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
with a copy to:
Barack Xxxxxxxxxx Xxxxxxxxxx
Xxxxxxx & Xxxxxxxxx LLC
000 X. Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxxxxxx, Esq.
or to such other Person or place as INVB or Newco shall furnish in writing.
Except as otherwise provided herein, all such notices, consents, waivers and
other communications shall be effective: (a) if delivered by hand, when
delivered; (b) if mailed in the manner provided in this Section, five (5)
Business Days after deposit with the United States Postal Service; (c) if
delivered by overnight express delivery service, on the next Business Day after
deposit with such service; and (d) if by facsimile, on the next Business Day if
also confirmed by mail in the manner provided in this Section.
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SECTION 11.7 ENTIRE AGREEMENT. This Agreement and any documents
executed by the parties pursuant to this Agreement and referred to herein
constitute a complete and exclusive statement of the entire understanding and
agreement of the parties hereto with respect to their subject matter and
supersede all other prior agreements and understandings, written or oral,
relating to such subject matter between the parties.
SECTION 11.8 SEVERABILITY. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision will be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of such provision or the remaining provisions of this Agreement unless the
consummation of the Merger is adversely affected thereby.
SECTION 11.9 COUNTERPARTS. This Agreement and any amendments thereto
may be executed in any number of counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same agreement.
SECTION 11.10 SURVIVAL. None of the representations and warranties set
forth in this Agreement shall survive the Effective Time.
[THIS SPACE LEFT INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers as of the day and year first written
above.
INVB: NEWCO:
INVESTORSBANCORP, INC., a Wisconsin corporation INVESTORS SUBSIDIARY, INC., a Wisconsin corporation
By: /s/ XXXXXX X. XXXXXXXX By: /s/ XXXXXX X. XXXXXXXX
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Name: Xxxxxx X. Xxxxxxxx Name: Xxxxxx X. Xxxxxxxx
------------------------------------------------ --------------------------------------------------
Title: Chief Executive Officer Title: President
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