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Exhibit 2
AGREEMENT OF MERGER AND PLAN OF REORGANIZATION
THIS AGREEMENT OF MERGER AND PLAN OF REORGANIZATION
(hereinafter referred to as the "AGREEMENT") is made and entered into this 6th
day of August, 1999, by and among Camco Financial Corporation, a Delaware
corporation (hereinafter referred to as "CAMCO"); Westwood Homestead Financial
Corporation, an Indiana corporation (hereinafter referred to as "WHFC"), and The
Westwood Homestead Savings Bank, a savings bank organized under Chapter 1161 of
the laws of the State of Ohio (hereinafter referred to as the "BANK");
WITNESSETH:
WHEREAS, the authorized capital of CAMCO consists of 8,900,000
shares of common stock, par value One Dollar ($1.00) per share (hereinafter
referred to as the "CAMCO SHARES"), 5,720,888 of which are issued and
outstanding, 369,521 of which are reserved for issuance upon the exercise of
outstanding stock options and 100,000 preferred shares, par value One Dollar
($1.00) per share, none of which is issued or outstanding;
WHEREAS, the authorized capital of WHFC consists of 15,000,000
common shares, par value One Cent ($0.01) per share, 2,168,818 of which are
issued and outstanding and held of record by approximately 425 shareholders
(hereinafter referred to as the "WHFC SHARES"), and 279,192 of which are
reserved for issuance upon the exercise of outstanding stock options
(hereinafter referred to as the "WHFC OPTIONS"), and 1,000,000 preferred shares,
par value One Cent ($0.01) per share, none of which is issued or outstanding;
WHEREAS, the authorized capital of the BANK consists of
5,000,000 common shares, par value One Dollar ($1.00) per share, 100,000 of
which are issued and outstanding and are owned of record by WHFC;
WHEREAS, the Boards of Directors of CAMCO, WHFC and the BANK
believe that the merger of WHFC with and into CAMCO is in the best interest of
each party and its respective shareholders; and
WHEREAS, as a condition and inducement to CAMCO's willingness
to enter into the AGREEMENT: (i) WHFC is concurrently entering into a stock
option agreement with CAMCO (the "WHFC STOCK OPTION AGREEMENT") in substantially
the form attached hereto as Exhibit "A", pursuant to which WHFC is granting to
CAMCO the option to purchase WHFC SHARES under certain circumstances, and (ii)
certain shareholders of WHFC are concurrently entering into a shareholder
agreement with CAMCO (the "WHFC SHAREHOLDER AGREEMENT") in substantially the
form attached hereto as Exhibit "B", pursuant to which, among other things, such
shareholders will agree to vote their WHFC SHARES in favor of this AGREEMENT and
the transactions contemplated hereby;
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NOW THEREFORE, in consideration of the premises and the mutual
covenants and agreements hereinafter set forth, CAMCO, WHFC and the BANK, each
intending to be legally bound, hereby agree as follows:
ARTICLE ONE
THE MERGER
SECTION 1.01. MERGER; SURVIVING CORPORATION. Subject to the
terms and conditions of this AGREEMENT, and pursuant to the provisions of the
Delaware General Corporation Law (hereinafter referred to as the "DGCL"), the
Indiana Business Corporation Law (hereinafter referred to as the "IBCL"), and
applicable federal laws and regulations, WHFC shall merge with and into CAMCO
(hereinafter referred to as the "MERGER") at the EFFECTIVE TIME (hereinafter
defined). CAMCO shall be the continuing, surviving and resulting corporation in
the MERGER and shall continue to exist as a Delaware corporation. CAMCO shall be
the only one of CAMCO and WHFC to continue its separate corporate existence
after the EFFECTIVE TIME. The name of the continuing, surviving and resulting
corporation shall remain "Camco Financial Corporation". From and after the
MERGER, CAMCO, as the surviving corporation, shall possess all assets and
property of every description, and every interest in the assets and property,
wherever located, and the rights, privileges, immunities, powers, franchises and
authority, of a public as well as a private nature, of CAMCO and WHFC and all
obligations belonging or due to each of them.
SECTION 1.02. CLOSING. (a) The closing of the MERGER pursuant
to this AGREEMENT (hereinafter referred to as the "CLOSING") shall take place at
a date and time agreed to by CAMCO and WHFC as soon as practicable after the
satisfaction or waiver of the last of the conditions to the MERGER set forth in
Article Seven of this AGREEMENT, but in no event prior to January 2, 2000.
(b) On the day of the CLOSING, CAMCO and WHFC shall cause
Certificates of Merger in respect of the MERGER to be filed in the Office of the
Delaware Secretary of State and the Office of the Indiana Secretary of State.
The MERGER shall become effective at the latest to occur of the time (i) the
Delaware Certificate of merger is filed with the Delaware Secretary of State,
(ii) the Indiana Certificate of Merger is filed with the Indiana Secretary of
State or (iii) the date and time indicated on such filings (hereinafter referred
to as the "EFFECTIVE TIME").
SECTION 1.03. ADOPTION BY SHAREHOLDERS. (a) This AGREEMENT
shall be submitted for consideration and adoption by the shareholders of WHFC
and CAMCO entitled to vote at an annual meeting of shareholders or a special
meeting of shareholders called for such purpose to be held at a time, date and
place to be determined by the Board of Directors of WHFC and CAMCO,
respectively, subject to applicable laws and regulations.
(b) This AGREEMENT shall be considered and adopted by WHFC, as
the sole shareholder of the BANK.
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SECTION 1.04. REGULATORY FILINGS. (a) CAMCO shall prepare and
cause to be filed with the Office of Thrift Supervision (hereinafter referred to
as the "OTS"), and the Superintendent of the Division of Financial Institutions
of the Ohio Department of Commerce (hereinafter referred to as the "DIVISION")
such applications, notices or other instruments as may be required for approval
of the MERGER (hereinafter referred to collectively as the "REGULATORY
APPLICATIONS"). WHFC and the BANK shall have the right to review and approve in
advance all characterizations of the information relating to WHFC or the BANK,
as the case may be, which appear in any REGULATORY APPLICATION. In addition,
CAMCO shall furnish to WHFC for review a copy of each REGULATORY APPLICATION
prior to its filing.
(b) CAMCO shall prepare and cause to be filed with the
Securities and Exchange Commission (hereinafter referred to as the "SEC") a
registration statement on Form S-4, or such other form as may be required by the
SEC (hereinafter referred to as the "REGISTRATION STATEMENT"), to register under
the Securities Act of 1933 the CAMCO SHARES to be issued to shareholders of WHFC
in the MERGER as provided in Section 2.01 of this Agreement and shall use all
reasonable efforts to have the REGISTRATION STATEMENT, as amended, declared
effective by the SEC as promptly as possible. CAMCO shall provide copies of the
REGISTRATION STATEMENT and all amendments to WHFC upon filing, keep WHFC
reasonably informed as to the status of the REGISTRATION STATEMENT and provide
WHFC with copies of all responses from the SEC. CAMCO shall also use its best
efforts to obtain all necessary state securities law or "Blue Sky" permits and
approvals required to carry out the transactions contemplated by this AGREEMENT,
and WHFC shall furnish all information concerning WHFC as may be reasonably
requested in connection with any such action.
(c) CAMCO and WHFC shall prepare a joint proxy statement (the
"JOINT PROXY STATEMENT") for use in connection with the CAMCO and the WHFC
shareholder meetings. The parties hereto shall provide each other with any
information concerning itself that the other party may reasonably request in
connection with the JOINT PROXY STATEMENT and CAMCO shall notify WHFC promptly
of the receipt of any comments from the SEC with respect to the JOINT PROXY
STATEMENT and any requests by the SEC for any amendment or supplement thereto
for additional information and shall provide to WHFC promptly copies of all
correspondence between CAMCO or any of its representatives and the SEC. CAMCO
shall give WHFC and its counsel the opportunity to review and comment on the
JOINT PROXY STATEMENT prior to its being filed with the SEC and shall give WHFC
and its counsel the opportunity to review and comment on all amendments and
supplements to the JOINT PROXY STATEMENT and all responses to requests for
additional information and replies to comments prior to their being filed with,
or sent to, the SEC. Each of WHFC and CAMCO agrees to use all reasonable
efforts, after consultation with the other party hereto, to respond promptly to
all such comments of and requests by the SEC and to cause the JOINT PROXY
STATEMENT and all required amendments and supplements thereto to be mailed to
the respective stockholders of WHFC and CAMCO at the earliest practicable time.
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(d) The BANK shall coordinate with CAMCO the BANK's filing of
an application with the OTS pursuant to 12 U.S.C. 1467(a)(L) (the "10-L
Election") for election to be deemed a savings association for purposes of
Section 12 U.S.C. 1467(a), such application to be effective concurrently with
the EFFECTIVE TIME.
(e) WHFC shall take all steps necessary to de-register as a
bank holding company under the Bank Holding Company Act, such de-registration to
be effective concurrently with the EFFECTIVE TIME.
SECTION 1.05. CERTIFICATE OF INCORPORATION AND BYLAWS OF CAMCO
AS THE SURVIVING CORPORATION. The Certificate of Incorporation and Bylaws of
Camco Financial Corporation, as in effect immediately prior to the EFFECTIVE
TIME, shall be the Certificate of Incorporation and Bylaws of the surviving
corporation of the MERGER, until either is thereafter amended in accordance with
applicable law.
ARTICLE TWO
CONVERSION AND CANCELLATION OF WHFC SHARES
SECTION 2.01. CONVERSION AND CANCELLATION OF WHFC SHARES. At
the EFFECTIVE TIME and as a result of the MERGER, automatically and without
further act of CAMCO, WHFC, the BANK or the holders of CAMCO SHARES or WHFC
SHARES, the following shall occur:
(a) Each WHFC share shall be cancelled and extinguished and,
in substitution and exchange therefor, the holders thereof shall be entitled,
subject to and upon compliance with Section 2.03 of this AGREEMENT, to receive
from CAMCO $5.20 and 0.611 CAMCO share (subject to possible adjustment as set
forth in Section 2.01(a)(i) and Section 2.01(a)(ii),below (the "PER SHARE MERGER
CONSIDERATION") without any interest thereon from the EFFECTIVE TIME until the
time of payment,
(i) The CAMCO share portion of the PER SHARE
MERGER CONSIDERATION shall be adjusted to
reflect any stock split, stock dividend or
distributions in, or combinations or
subdivisions of, CAMCO SHARES, between the
date hereof and the EFFECTIVE TIME.
(ii) No fractional shares will be issued, and
cash will be paid in lieu of fractional
shares based on the average of the bid and
asked price quotes of the CAMCO SHARES as
reported on The Nasdaq National Market
System by a mutually agreed upon
authoritative source on the last day of
trading of CAMCO SHARES prior to the date
of CLOSING ("CAMCO SHARES MARKET VALUE").
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(b) CAMCO SHARES issued and outstanding before the EFFECTIVE
TIME shall remain issued and outstanding after the EFFECTIVE TIME.
(c) Any treasury shares held by WHFC and any WHFC SHARES owned
by CAMCO for its own account shall be cancelled and retired at the EFFECTIVE
TIME and no consideration shall be issued in exchange therefor.
SECTION 2.02. WHFC OPTIONS.
(a) At the EFFECTIVE TIME, the Westwood Homestead Financial
Corporation 1997 Stock Option Plan (the "OPTION PLAN") and WHFC OPTIONS not yet
exercised at such time, shall be assumed by CAMCO. No option to purchase WHFC
SHARES granted under the OPTION PLAN after December 31, 1998 shall be valid in
any respect.
The number of CAMCO SHARES to be issued upon the exercise of a
WHFC OPTION which is exercised after the EFFECTIVE TIME shall be equal to the
number of WHFC SHARES subject to such WHFC OPTIONS immediately prior to the date
of the CLOSING multiplied by the OPTION EXCHANGE RATIO (as hereinafter defined)
(with the product rounded down to the next whole share), and the per share
exercise price shall be adjusted by dividing the per share exercise price under
each such WHFC OPTION by the OPTION EXCHANGE RATIO (with the quotient rounded up
to the next whole cent). CAMCO and its Compensation Committee shall be
substituted for WHFC and the Committee of the WHFC Board of Directors
administering the OPTION PLAN. Each WHFC OPTION shall, in accordance with its
terms, be subject to further adjustment as appropriate to reflect any stock
split, dividends payable in stock, recapitalization or other similar transaction
subsequent to the EFFECTIVE TIME. The OPTION EXCHANGE RATIO is the value of the
PER SHARE MERGER CONSIDERATION (the CAMCO share portion determined by using the
CAMCO SHARES MARKET VALUE) divided by the CAMCO SHARES MARKET VALUE.
(b) The CAMCO SHARES covered by the WHFC OPTIONS to be issued
pursuant to Section 2.02(a) shall be covered by a registration statement filed
with the SEC and effective at the EFFECTIVE TIME, and CAMCO shall take all
actions necessary to maintain the effectiveness of such registration statement
until all WHFC OPTIONS have been exercised or terminated. When CAMCO SHARES are
issued upon the exercise of WHFC OPTIONS, such CAMCO SHARES shall be duly
authorized, validly issued, fully paid and non-assessable and not subject to or
in violation of any preemptive rights. CAMCO shall reserve sufficient CAMCO
SHARES for issuance with respect to such options. CAMCO shall also take any
reasonable action required to be taken under any applicable state blue sky or
securities laws in connection with the issuance of such shares.
(c) Except as provided in this Section 2.02, all other terms
and conditions of the OPTION PLAN and award grants thereunder shall remain as
now existing.
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(d) In respect of any stock option which is an "Incentive
Stock Option" within the meaning of Section 422 of the Internal Revenue Code of
1986, as amended (hereinafter referred to as the "CODE"), the conversion hereby
provided for shall comply with the requirements of Section 424(a) of the CODE,
including the requirement that such converted options shall not give to the
holder thereof any benefits additional to those which such holder had prior to
such conversion under the option as originally granted. It is intended that the
foregoing assumption shall be undertaken in a manner that will not constitute a
"modification" as defined in Section 424(h) of the CODE as to any stock option
which is an "Incentive Stock Option".
(e) Any holder of any WHFC OPTION may exercise such options at
any time, prior to the date of the CLOSING as provided in the OPTION PLAN.
SECTION 2.03. SHARE CERTIFICATES IN THE MERGER. (a) Seven
business days after the EFFECTIVE TIME or as soon thereafter as practicable
after the EFFECTIVE TIME, and CAMCO shall use its reasonable best efforts to
accomplish such within seven business days, CAMCO shall mail to each holder of
record of WHFC shares a form letter of transmittal and instructions for use in
effecting the surrender for exchange of the certificates formerly evidencing the
WHFC shares cancelled and extinguished as a result of the MERGER (hereinafter
referred to collectively as the "CERTIFICATES" and individually as the
"CERTIFICATE"). Such letter of transmittal shall specify that the risk of loss
and title to CERTIFICATES shall pass only upon delivery of such certificates as
specified in the Letter of Transmittal. Upon surrender of a CERTIFICATE for
cancellation, together with such letter of transmittal, duly executed, the
holder of such CERTIFICATE shall be entitled to receive in exchange therefor the
consideration to which the holder is entitled in accordance with the provisions
of this AGREEMENT, and the CERTIFICATE so surrendered shall thereafter be
cancelled forthwith. CAMCO may, at its election, designate an exchange agent to
discharge its duties pursuant to this Section 2.03.
(b) In the event that any holder of WHFC shares cancelled and
extinguished in accordance with this AGREEMENT is unable to deliver the
CERTIFICATE which evidences such WHFC SHARES, CAMCO, in the absence of actual
notice that any WHFC SHARES theretofore evidenced by any such CERTIFICATE have
been acquired by a bona fide purchaser, shall deliver to such holder the
consideration to which such holder is entitled in accordance with the provisions
of this AGREEMENT upon the presentation of all of the following:
(i) Evidence to the reasonable satisfaction
of CAMCO that any such CERTIFICATE has
been lost, wrongfully taken or destroyed;
(ii) Such security or indemnity as may be
reasonably requested by CAMCO to indemnify
and hold CAMCO harmless; and
(iii) Evidence to the reasonable satisfaction of
CAMCO that such person is the owner of the
WHFC SHARES theretofore represented by
each CERTIFICATE claimed by him to be
lost, wrongfully taken or destroyed and
that he is the person who would be
entitled to present each such CERTIFICATE
for exchange pursuant to this AGREEMENT.
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(c) In the event that delivery of the consideration provided
for herein is to be made to a person other than the person in whose name the
CERTIFICATE surrendered is registered, the CERTIFICATE so surrendered shall be
properly endorsed or otherwise in proper form for transfer and the person
requesting such issuance or payment shall pay any transfer or other taxes
required by reason of the issuance or payment to a person other than the
registered holder of the CERTIFICATE surrendered or establish to the
satisfaction of CAMCO that such tax has been paid or is not applicable. Until
surrendered in accordance with the provisions of this Section 2.03, each
CERTIFICATE shall represent for all purposes only the right to receive the
number of CAMCO SHARES and cash consideration determined pursuant to this
AGREEMENT.
(d) No dividends or other distributions declared after the
EFFECTIVE TIME with respect to CAMCO SHARES and payable to the holders of record
thereof after the EFFECTIVE TIME shall be paid to the holder of any
unsurrendered CERTIFICATE until the holder thereof shall surrender such
CERTIFICATE. Subject to the effect, if any, of applicable law, after the
subsequent surrender and exchange of a CERTIFICATE, the record holder thereof
shall be entitled to receive any such dividends or other distributions, without
any interest thereon, which theretofore had become payable with respect to the
CAMCO SHARES represented by such CERTIFICATE.
(e) No consideration provided for herein shall be delivered by
CAMCO to any former holder of WHFC shares in accordance with this AGREEMENT
until such holder shall have complied with this Section 2.03.
SECTION 2.04. PAYMENT IN SATISFACTION OF RIGHTS. All payments
made upon the surrender of CERTIFICATES pursuant to this Article Two shall be
deemed to have been made in full satisfaction of all rights pertaining to the
shares evidenced by such CERTIFICATES.
SECTION 2.05. NO FURTHER REGISTRATION OR TRANSFER. After the
EFFECTIVE TIME, there shall be no further registration or transfer of WHFC
shares on the stock transfer books of WHFC. In the event that, after the
EFFECTIVE TIME, CERTIFICATES evidencing such WHFC SHARES are presented for
transfer, they shall be cancelled and exchanged as provided in this Article Two.
ARTICLE THREE
REPRESENTATIONS AND WARRANTIES OF WHFC AND THE BANK
WHFC and the BANK represent and warrant to CAMCO that each of
the following statements is true and accurate in all material respects, except
as otherwise disclosed in a schedule provided by WHFC and the BANK to CAMCO
prior to the execution of this AGREEMENT (hereinafter referred to as the "WHFC
DISCLOSURE SCHEDULE"):
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SECTION 3.01. ORGANIZATION AND STANDING. (a) WHFC is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Indiana and has the corporate power and authority to own or hold
under lease all of its properties and assets and to conduct its business and
operations as presently conducted. WHFC is registered as a bank holding company
under the Bank Holding Company Act. WHFC is in compliance in all material
respects with all applicable local, state or federal laws and regulations,
except to the extent that failure to be in compliance would not have a material
adverse effect on WHFC and the BANK taken as a whole.
(b) The BANK is a savings bank duly organized and validly
existing under the laws of the State of Ohio and has the corporate power and
authority to own or hold under lease all of its properties and assets and to
conduct its business and operations as presently conducted. The BANK is a member
of the Federal Home Loan Bank of Cincinnati (hereinafter referred to as the
"FHLB"). The deposit accounts of the BANK are insured up to applicable limits by
the Savings Association Insurance Fund administered by the Federal Deposit
Insurance Corporation (the "FDIC") (hereinafter referred to as the "SAIF"). The
BANK is in compliance in all material respects with all applicable local, state
or federal banking laws and regulations, including, without limitation, the
regulations of the FDIC and the DIVISION, except to the extent that failure to
be in compliance would not have a material adverse effect on WHFC and the BANK,
taken as a whole. The BANK is a "qualified thrift lender" as defined in 12
U.S.C. 1467(a)(m) and applicable regulations.
SECTION 3.02. QUALIFICATION. WHFC and the BANK are each either
duly qualified to do business and in good standing in each jurisdiction in which
such qualification is required or the failure to so qualify would not have a
material adverse effect on the business of WHFC or the BANK.
SECTION 3.03. AUTHORITY OF WHFC AND THE BANK. This AGREEMENT
has been duly executed and delivered by WHFC and the BANK. Subject to the
adoption of this AGREEMENT by the WHFC shareholders, to the adoption of this
AGREEMENT by WHFC as the sole shareholder of the BANK, and to the filing of all
requisite regulatory notices and the receipt of all requisite regulatory
approvals, (a) WHFC has all requisite corporate power and authority to enter
into this AGREEMENT and to perform all of its obligations hereunder; (b) the
BANK has all requisite corporate power and authority to enter into this
AGREEMENT and to perform all of its obligations hereunder and thereunder; (c)
the execution and delivery of this AGREEMENT and the consummation of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action by WHFC and the BANK; and (d) subject to applicable bankruptcy,
insolvency, reorganization and moratorium laws and other laws of general
applicability affecting the enforcement of creditors' rights generally, and the
effect of rules of law governing specific performance, injunctive relief and
other equitable remedies on the enforceability of such documents, and except to
the extent such enforceability may be limited by laws relating to safety and
soundness of insured depository institutions as set forth in 12 U.S.C. Section
1818(b) or by the appointment of a conservator by the FDIC, (i) this AGREEMENT
is the valid and binding agreement of WHFC, enforceable against WHFC in
accordance with its terms, and
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(ii) this AGREEMENT is the valid and binding agreement of the BANK, enforceable
against the BANK in accordance with its terms.
SECTION 3.04. GOVERNING DOCUMENTS. WHFC has made available, or
will promptly make available, to CAMCO true and accurate copies of its Articles
of Incorporation and Bylaws and has granted CAMCO access to all records of all
meetings and other corporate actions occurring before the EFFECTIVE TIME by the
shareholders, Board of Directors and Committees of the Board of Directors of
WHFC. The BANK has made available, or will promptly make available, to CAMCO
true and accurate copies of its Articles of Incorporation, Constitution and
Bylaws and has granted or will grant to CAMCO access to all records of all
meetings and other corporate actions occurring before the EFFECTIVE TIME by the
shareholders, Board of Directors and Committees of the Board of Directors of the
BANK. The minute books of WHFC and the BANK contain, in all material respects,
complete and accurate records of all meetings and other corporate actions of
their shareholders, Boards of Directors and Committees of the Boards of
Directors.
SECTION 3.05. NO CONFLICTS. The execution and delivery of this
AGREEMENT and, subject to the adoption of this AGREEMENT by the shareholders of
WHFC and to the regulatory filings and approvals referenced in Section 1.04 of
this AGREEMENT, the consummation of the transactions contemplated hereby will
not (a) conflict with or violate any provision of or result in the breach of any
provision of the Articles of Incorporation or Bylaws of WHFC or the Articles of
Incorporation or Constitution of the BANK; (b) conflict with or violate any
provision of or result in the breach or the acceleration of or entitle any party
to accelerate (whether upon or after the giving of notice or lapse of time or
both) any obligation under, or otherwise materially affect the terms of, any
mortgage, lien, lease, agreement, license, instrument, order, arbitration award,
judgment or decree to which WHFC or the BANK is a party or by which WHFC or the
BANK or their property or assets are bound; (c) require the consent of any party
to any agreement or commitment to which WHFC or the BANK is a party or by which
WHFC or the BANK or their property or assets are bound, the failure to obtain
which could, individually or in the aggregate with all the other failures to
obtain required consents, have a material adverse effect on the business,
operations, condition (financial or otherwise) or prospects of WHFC or the BANK;
(d) result in the creation or imposition of any lien, charge, pledge, security
interest or other encumbrance upon any property or assets of WHFC or the BANK;
or (e) violate or conflict with any applicable law, ordinance, rule or
regulation, including, without limitation, the rules and regulations of, or
conditions of approval of applications or notices to, the Federal Reserve Board,
the FDIC or the DIVISION.
SECTION 3.06. CONSENTS. No consent, approval, order or
authorization of, or registration, declaration or filing with, any governmental
authority is required in connection with the execution and delivery of this
AGREEMENT by WHFC or the BANK or the consummation by WHFC or the BANK of the
transactions contemplated hereby, except for the filings, authorizations
consents or approvals referenced in Sections 1.02, 1.03 and 1.04 of this
AGREEMENT.
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SECTION 3.07. CAPITALIZATION. (a) The authorized capital of
WHFC consists solely of (i) 15,000,000 common shares, One Cent ($0.01) par value
per share, 2,168,818 of which are issued and outstanding and held of record by
approximately 425 shareholders and 279,192 of which are reserved for issuance
upon the exercise of WHFC OPTIONS, and (ii) 1,000,000 preferred shares, One Cent
($0.01) par value, none of which is issued or outstanding. All of the
outstanding WHFC shares are duly authorized, validly issued, fully paid and
nonassessable, were issued in full compliance with all applicable laws and
regulations, and were not issued in violation of the preemptive right of any
shareholder of WHFC. Upon the exercise of the WHFC OPTIONS prior to the date of
the CLOSING, the WHFC shares to be issued in connection with the exercise of
such WHFC OPTIONS will be duly authorized, validly issued, fully paid and
nonassessable, will be issued in full compliance with all applicable laws and
regulations, and will not be issued in violation of the preemptive right of any
shareholder of WHFC. Except for the WHFC OPTIONS, each of which is identified by
type (e.g. incentive stock options or non-qualified stock options), name of
recipient, award date, expiration date, number of shares and exercise price per
share (as such price may have been adjusted) in Section 3.07 of the WHFC
DISCLOSURE SCHEDULE, and the WHFC STOCK OPTION AGREEMENT with CAMCO provided for
herein, there are no outstanding subscription rights, options, conversion
rights, warrants or other agreements or commitments of any nature whatsoever
(either firm or conditional) obligating WHFC to issue, deliver or sell, cause to
be issued, delivered or sold, or restricting WHFC from selling any additional
WHFC shares, or obligating WHFC to grant, extend or enter into any such
agreement or commitment.
(b) The authorized capital of the BANK consists of 5,000,000
common shares, par value One Dollar ($1.00) per share, 100,000 of which are
issued and outstanding and held of record by WHFC. All of the outstanding common
shares of the BANK are duly authorized, validly issued, fully paid and
nonassessable, were issued in full compliance with all applicable laws and
regulations, and were not issued in violation of the preemptive right of any
shareholder of the BANK. There are no outstanding subscription rights, options,
conversion rights, warrants or other agreements or commitments of any nature
whatsoever (either firm or conditional) obligating the BANK to issue, deliver or
sell, or to cause to be issued, delivered or sold, any additional BANK SHARES.
SECTION 3.08. SEC DOCUMENTS AND REGULATORY REPORTS. (a) WHFC
has delivered or made available to CAMCO a complete copy of all reports,
prospectuses, offering circulars, proxy statements, registration statements and
all similar documents filed, or required to be filed, pursuant to the Securities
Act of 1933, as amended, and the Securities Act of 1934, as amended, and
regulations issued pursuant thereto or mailed by WHFC or the BANK to the members
or shareholders since August 15, 1996 ("SECURITIES DOCUMENTS"). The SECURITIES
DOCUMENTS were timely filed, did not, as of the dates on which such reports were
filed with the SEC, contain any untrue statement of a material fact or omit any
material fact required to be stated therein or necessary to make the statements
contained therein, in light of the circumstances under which they were made, not
misleading.
(b) Since August 15, 1996 each of WHFC and the BANK has duly
filed with the Federal Reserve Board, the FDIC and the Division, as the case may
be, in correct form the
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reports required to be filed under applicable law and regulations and such
reports were in all material respects complete and accurate and in compliance
with the requirements of applicable law and regulation, and WHFC has previously
delivered or made available to CAMCO accurate and complete copies of all such
reports. In connection with the most recent examination of WHFC or the BANK by
the Federal Reserve Board, the FDIC and the Division, neither WHFC nor the BANK
was required to correct or change any action, procedure or proceeding which has
not been corrected or changed as required.
SECTION 3.09. FINANCIAL STATEMENTS. (a) The consolidated
statements of financial condition of WHFC and its subsidiaries as of December
31, 1998 and 1997 and the related consolidated statements of income, statements
of stockholder equity and cash flows for each of the three fiscal years ended
December 31, 1998, 1997 and 1996 together with the notes thereto, examined and
reported upon by KPMG LLP, independent certified public accountants, complete
copies of which have previously been delivered to CAMCO (hereinafter referred to
as the "WHFC Audited Financials") have been prepared in conformity with
generally accepted accounting principles ("GAAP") applied on a consistent basis,
except as stated therein, and fairly present the consolidated financial position
of WHFC at such date and the consolidated results of its operations and cash
flows for such periods.
(b) The unaudited consolidated statements of financial
condition of WHFC as of March 31, 1999 and March 31, 1998 and related unaudited
consolidated statements of income, statements of stockholders equity and cash
flow for the three months then ended included in the WHFC Quarterly Report on
Form 10-Q for the quarter ended March 31, 1999 as currently on file with the
SEC, and previously delivered to CAMCO, (hereinafter referred to as the "WHFC
INTERIM FINANCIALS") fairly present the financial position of WHFC at such dates
and the results of its operations and cash flows for such periods and have been
prepared in accordance with GAAP applied on a consistent basis, subject to
normal recurring year-end adjustments, or as otherwise may be specified therein.
(c) The audits of WHFC and the BANK have been conducted in all
material respects in compliance with generally accepted auditing standards. The
book and records of WHFC and the BANK are being maintained in material
compliance with applicable legal and accounting requirements, and such books and
records accurately reflect in all material respects all dealings and
transactions in respect of the business, assets, liabilities and affairs of WHFC
and the BANK.
(d) Except as disclosed in the WHFC INTERIM FINANCIALS, as of
March 31, 1999, WHFC had no liabilities or obligations material to the business
condition (financial or otherwise) of WHFC and its consolidated subsidiaries
taken as a whole, whether accrued, absolute, contingent or otherwise, and
whether due or to become due.
(e) The WHFC AUDITED FINANCIALS and WHFC INTERIM FINANCIALS
did not, as of the dates thereof, contain any untrue statement of a material
fact or omit to state any material fact necessary to make the information
contained therein, in light of the circumstances under which they were made, not
misleading.
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SECTION 3.10. ABSENCE OF MATERIAL ADVERSE CHANGE: CONDUCT OF
BUSINESS. Since March 31, 1999, there have been no material adverse changes in
the financial condition, assets, liabilities, obligations, properties, business
or prospects of WHFC or the BANK, taken as a whole; WHFC and the BANK have
conducted business only in the ordinary and usual course; and WHFC and the BANK
have not:
(a) Except for the WHFC STOCK OPTION AGREEMENT,
authorized the creation or issuance of, issued, sold
or disposed of, or created any obligation to issue,
sell or dispose of, any stock, notes, bonds or other
securities, or any obligation convertible into or
exchangeable for, any shares of their capital stock;
(b) Declared, set aside, paid or made any dividend or
other distributions on their capital stock or
directly or indirectly redeemed, purchased or
acquired any shares thereof or entered into any
agreement in respect of the foregoing; except a cash
dividend paid by WHFC on May 24, 1999 in the amount
of $0.11 per share and a cash dividend of $.12 per
share declared by the Board of Directors on July 26,
1999;
(c) Effected any stock split, recapitalization,
combination, exchange of shares, readjustment or
other reclassification;
(d) Amended their Articles of Incorporation, Constitution
or Bylaws;
(e) Purchased, sold, assigned or transferred any material
tangible asset or any material patent, trademark,
trade name, copyright, license, franchise, design or
other intangible asset or property;
(f) Mortgaged, pledged or granted or suffered to exist
any lien or other encumbrance or charge on any assets
or properties, tangible or intangible, except for
liens for taxes not yet due and payable and such
other liens, encumbrances or charges which do not
materially adversely affect their financial position;
(g) Cancelled any material debts or waived any material
claims other than for adequate consideration;
(h) Incurred any material obligation or liability
(absolute or contingent), including, without
limitation, any tax liability, or paid any material
liability or obligation (absolute or contingent)
other than liabilities and obligations incurred or
paid in the ordinary course of business and
consistent with past practice, and liabilities
incurred in connection with the transaction,
contemplated by this AGREEMENT or the WHFC STOCK
OPTION AGREEMENT;
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(i) Experienced any material change in the amount or
general composition of their deposit liabilities;
(j) Entered into or amended any employment contract with
any of their employees, increased the compensation
payable to any officer or director or any relative of
any such employee or director, or become obligated to
increase any such compensation;
(k) Adopted or amended in any material respect any
employee benefit plan, severance plan or collective
bargaining agreement or made any awards or
distributions under any employee benefit plan not
consistent with past practice or custom;
(l) Incurred any damage, destruction or similar loss,
whether or not covered by insurance, materially
affecting their businesses or properties;
(m) Acquired any stock or other equity interest in any
corporation, partnership, trust, joint venture or
other entity;
(n) Made any (i) material investment (except investments
made in the ordinary course of business and
consistent with past practice) or (ii) material
capital expenditure or commitment for any material
addition to property, plant or equipment; or
(o) Agreed, whether in writing or otherwise, to take any
action described in this Section 3.10.
SECTION 3.11. PROPERTIES. (a) A list and brief description of
all material fixed assets owned by WHFC or the BANK (hereinafter referred to as
the "PERSONAL PROPERTY") carried on the books of WHFC or the BANK as of the date
hereof, is set forth in Section 3.11(a) of the WHFC DISCLOSURE SCHEDULE. All
PERSONAL PROPERTY has been maintained in good working order, ordinary wear and
tear excepted. WHFC or the BANK owns and has good title to all of the PERSONAL
PROPERTY, free and clear of any mortgage, lien, pledge, charge, claim,
conditional sales or other agreement, lease, right or encumbrance, except (i) to
the extent stated or reserved against in the WHFC AUDITED FINANCIALS and (ii)
such other exceptions which are not material in character, amount or extent and
do not materially detract from the value of or interfere with the use of the
properties or assets subject thereto or affected thereby.
(b) To the knowledge of the BANK, the documentation governing
or relating to the loan and credit-related assets (hereinafter referred to as
the "LOAN ASSETS") representing the loan portfolio of the BANK (hereinafter
referred to as "LOAN DOCUMENTATION") is legally sufficient in all material
respects for the purposes intended thereby and creates enforceable rights of the
BANK in accordance with the terms of such LOAN
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DOCUMENTATION, subject to applicable bankruptcy, insolvency, reorganization and
moratorium laws and other laws of general applicability affecting the
enforcement of creditors' rights generally, and the effect of rules of law
governing specific performance, injunctive relief and other equitable remedies
on the enforceability of such documents. To the knowledge of the BANK, no debtor
under any of the LOAN DOCUMENTATION has asserted any claim or defense with
respect to the subject matter thereof.
(c) A description of each parcel of real property owned by
WHFC or the BANK (hereinafter referred to as the "REAL PROPERTIES") is set forth
in Section 3.11(c) of the WHFC DISCLOSURE SCHEDULE. WHFC or the BANK is the
owner of the REAL PROPERTIES in fee simple and has good and marketable title to
the REAL PROPERTIES free of any liens, claims, charges, encumbrances or security
interests of any kind, except (i) liens for real estate taxes and assessments
not yet delinquent and (ii) utility, access and other easements, rights of way,
restrictions and exceptions which do not impair the REAL PROPERTIES for the use
and business being conducted thereon. No party leases any of the REAL PROPERTIES
from WHFC or the BANK.
(d) Neither WHFC nor the BANK has received notification from
any governmental entity within the two-year period immediately preceding the
date hereof of contemplated improvements to the REAL PROPERTIES or surrounding
area or community by a public authority, the costs of which are to be assessed
as special taxes against the REAL PROPERTIES in the future.
(e) A description of all real property leased by WHFC or the
BANK from a third party (hereinafter referred to as the "LEASED REAL PROPERTY")
is set forth in Section 3.11(e) of the WHFC DISCLOSURE SCHEDULE. True and
correct copies of all leases in respect of the LEASED REAL PROPERTY (hereinafter
referred to as the "REAL PROPERTY LEASES") and all attachments, amendments and
addenda thereto have been delivered by WHFC and the BANK to CAMCO. The REAL
PROPERTY LEASES create, in accordance with their terms, valid, binding leasehold
interests of WHFC or the BANK in all of the LEASED REAL PROPERTY, free and clear
of all liens, claims, charges, encumbrances or security interests of any kind.
WHFC and the BANK have complied in all material respects with all of the
provisions of the REAL PROPERTY LEASES required on their part to be complied
with and are not in default with respect to any of their obligations (including
payment obligations) under any of the REAL PROPERTY LEASES.
(f) A description of all personal property leased by WHFC or
the BANK from a third party (hereinafter referred to as the "LEASED PERSONAL
PROPERTY") is set forth in Section 3.11(f) of the WHFC DISCLOSURE SCHEDULE. The
PERSONAL PROPERTY LEASES create, in accordance with their terms, valid and
binding leasehold interests of WHFC or the BANK in all of the LEASED PERSONAL
PROPERTY, free and clear of all liens, claims, charges, encumbrances or security
interests of any kind. WHFC and the BANK have complied in all material respects
with all of the provisions under the PERSONAL PROPERTY LEASES required on their
part to be complied with and are not in default with respect to any of their
obligations (including payment obligations) under any of the PERSONAL PROPERTY
LEASES.
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SECTION 3.12. ALLOWANCE FOR LOAN LOSSES. The allowance for
loan losses reflected on the WHFC AUDITED FINANCIALS is adequate as of the date
hereof in all material respects under the requirements of GAAP to provide for
reasonably anticipated losses on outstanding loans.
SECTION 3.13. INVESTMENTS. Section 3.13 of the WHFC DISCLOSURE
SCHEDULE sets forth (a) a true, accurate and complete list of all investments,
other than investments in the PERSONAL PROPERTY, LOAN ASSETS and REAL
PROPERTIES, owned by WHFC or the BANK (hereafter referred to as the
"INVESTMENTS") as of the date hereof, the name of the registered holder thereof,
the location of the certificates therefor or other evidence thereof and any
stock powers or other authority for transfer granted with respect thereto and
(b) a true, accurate and complete list of the names of each bank or other
depository in which either WHFC or the BANK has an account or safe deposit box,
including, without limitation, accounts with the FHLB, and the names of all
persons authorized to draw thereon or to have access thereto. The INVESTMENTS
are owned by WHFC or the BANK free and clear of all liens, pledges, claims,
security interests, encumbrances, charges or restrictions of any kind and may be
freely disposed of by WHFC or the BANK at any time. Neither WHFC nor the BANK is
a party to or has any interest in any repurchase agreements or reverse
repurchase agreements. There are no outstanding letters of credit issued by the
BANK.
SECTION 3.14. DERIVATIVE TRANSACTIONS. Neither WHFC nor the
BANK is a party to any futures contract, option contract, interest rate caps,
interest rate floors, interest rate exchange agreements or other derivative
instruments.
SECTION 3.15. TAXES. (a) WHFC and the BANK have duly and
timely filed all federal, state, county and local income, profits, franchise,
excise, sales, customs, property, use, occupation, withholding, social security
and other tax and information returns and reports required to have been filed by
them through the date hereof, except to the extent that all such failures to
file, taken together, are not reasonably likely to have a material adverse
effect on WHFC and the BANK taken as a whole, and have paid or accrued all taxes
and duties (and all interest and penalties with respect thereto) due or claimed
to be due by WHFC or the BANK. Neither WHFC nor the BANK has, to their
knowledge, any liability for any taxes or duties (or interest or penalties with
respect thereto) of any nature whatsoever, and there is no basis for any
additional material claims or assessments. True copies of the federal, state and
local income tax returns of WHFC or the BANK for each of the three tax years
ended December 31, 1998, 1997 and 1996, have been delivered to CAMCO.
(b) There are no federal, state or local tax returns or reports not
filed which would be due but for an extension of time for filing having been
granted, except as disclosed in Section 3.15(b) of the DISCLOSURE SCHEDULE.
Neither WHFC nor the BANK has executed or filed with the Internal Revenue
Service (hereinafter referred to as the "IRS") or any state or local tax
authority any agreement extending the period for assessment and collection of
any tax, nor is
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WHFC or the BANK a party to any action or proceeding of any governmental
authority for assessment or collection of taxes, except tax liens or levies
against customers of the BANK. There is no outstanding assessment or claim for
collection of taxes against WHFC or the BANK. Neither WHFC nor the BANK has
received any notice of deficiency, proposed deficiency or assessment from the
IRS or any other governmental agency with respect to any federal, state or local
taxes. No tax return of WHFC or the BANK is currently the subject of any audit
by the IRS or any other governmental agency. No material deficiencies have been
asserted in connection with the tax returns of WHFC or the BANK, and WHFC and
the BANK have no reason to believe that any deficiency would be asserted
relating thereto. Except as disclosed in Section 3.15(b) of the DISCLOSURE
SCHEDULE: (i) neither WHFC nor the BANK has ever been a member of an "affiliated
group of corporations" (within the meaning of Section 1504(a) of the CODE)
filing consolidated returns, other than the affiliated group of which WHFC is
the parent; and (ii) neither WHFC nor the BANK is a party to any tax sharing
agreement.
SECTION 3.16. MATERIAL CONTRACTS. (a) Except as set forth in
Section 3.16(a) of the WHFC DISCLOSURE SCHEDULE, neither WHFC nor the BANK is a
party to or bound by any written or oral (i) contract or commitment for capital
expenditures in excess of $15,000 for any one project or $30,000 in the
aggregate; (ii) contract or commitment made in the ordinary course of business
for the purchase of materials or supplies or for the performance of services
involving payments to or by WHFC or the BANK of an amount exceeding $15,000 in
the aggregate or extending for more than six months from the date hereof; (iii)
contract or option for the purchase of any property, real or personal, for an
amount exceeding $15,000; (iv) letter of credit or indemnity calling for payment
of more than $15,000; (v) guarantee agreement; (vi) instrument granting any
person authority to transact business on behalf of WHFC or the BANK; (vii)
contracts or commitments to make loans (including unfunded commitments and lines
of credit) to any one person (together with "affiliates" of that person) in
excess of $100,000 in the aggregate, except for contracts or commitments entered
into in the ordinary course of business; (viii) employment, management,
consulting, deferred compensation, severance or other similar contract with any
director, officer or employee of WHFC or the BANK; (ix) note, debenture or loan
agreement pursuant to which WHFC or the BANK has incurred indebtedness other
than deposit liabilities and advances from the FHLB; (x) loan participation
agreement; (xi) loan servicing agreement; (xii) contract or commitment relating
to a real estate development project consisting of the development of more than
one single family dwelling; (xiii) commitment to make any acquisition,
development and construction loan; (xiv) commitment or agreement to do any of
the foregoing; or (xv) other contract, agreement or commitment made outside the
ordinary course of business. (The contracts, agreements, commitments and other
arrangements described in clauses (i) through (xv) of this Section 3.16(a) are
hereinafter collectively referred to as the "CONTRACTS").
(b) Except as set forth in the DISCLOSURE SCHEDULE, WHFC or
the BANK has previously delivered to CAMCO (i) copies of all of the CONTRACTS
and (ii) all form lending agreements and deposit forms used by the BANK in the
ordinary course of business.
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(c) Neither WHFC nor the BANK is in material default under any
contract and no claim of such default by any party has been made or is now, to
the knowledge of WHFC or the BANK, threatened, except to the extent such a
default would not have a material adverse effect on WHFC and the BANK taken as a
whole. To the knowledge of WHFC and the BANK there does not exist any event
which, with notice or lapse of time or both, would constitute a material default
by WHFC or the BANK under, or would excuse performance by any party thereto
from, any contract, except to the extent such a default would not have a
material adverse effect on WHFC and the BANK taken as a whole.
SECTION 3.17. INSURANCE. All material properties and
operations of WHFC and the BANK are insured in amounts and types as are
customary for savings banks similarly situated. The performance by the officers
and employees of WHFC and the BANK of their duties is bonded in such amounts and
against such risks as are usually insured against or bonded by entities
similarly situated, under valid and enforceable policies of insurance or bonds
issued by insurers or bonding companies of recognized responsibility, financial
or otherwise.
SECTION 3.18. LITIGATION. Except as set forth in Section 3.18
of the WHFC DISCLOSURE SCHEDULE, (a) there are no material actions, suits,
proceedings or investigations pending or threatened against or affecting the
business, operations or financial condition of WHFC or the BANK in any court or
before any federal, state, municipal or other governmental department,
commission, board, bureau, agency or instrumentality, (b) neither the management
of WHFC nor the BANK has any knowledge of any basis for any such action, suit,
proceeding or investigation, and (c) neither WHFC nor the BANK is in default in
respect of any judgment, order, writ, injunction or decree of any court or any
federal, state, municipal or other governmental department, commission, board,
bureau, agency or instrumentality.
SECTION 3.19. PERMITS AND LICENSES. WHFC and the BANK each has
all material permits, licenses, orders and approvals of all federal, state or
local governmental or regulatory bodies required for it to conduct its business
as presently conducted, and all such material permits, licenses, orders and
approvals are in full force and effect, without the threat of suspension or
cancellation. None of such permits, licenses, orders or approvals will be
adversely affected by the consummation of the transactions contemplated by this
AGREEMENT.
SECTION 3.20. EMPLOYEE BENEFIT PLANS; ERISA. (a) Section
3.20(a) of the WHFC DISCLOSURE SCHEDULE sets forth a true and complete list of
all qualified pension or profit-sharing plans, deferred compensation,
consulting, bonus, group insurance plans or agreements and all other incentive,
welfare or employee benefit plans or agreements maintained for the benefit of
employees or former employees of WHFC or the BANK. Copies of such plans and
agreements, together with (i) , when applicable, the most recent actuarial and
financial reports prepared with respect to any such plan, (ii) the most recent
annual reports filed with any government agency and (iii) all rulings and
determination letters received from governmental agencies and any open requests
for rulings or letters that pertain to any such plan, have been delivered to
CAMCO.
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(b) Except as may be disclosed in Section 3.20(b) of the WHFC
DISCLOSURE SCHEDULE, WHFC and the BANK do not currently maintain any "employee
pension benefit plan," as defined in Section 3(2) of ERISA, (each such plan,
together with any related trust or other funding mechanism, as maintained by
WHFC or the BANK, hereinafter referred to as a "PENSION BENEFIT PLAN"), which is
intended to be qualified under Section 401(a) of the CODE.
(c) Neither WHFC nor the BANK currently maintains, nor have
they ever maintained, any PENSION BENEFIT PLAN subject to the provisions of
Title IV of The Employee Retirement Income Security Act of 1974, as amended
(hereinafter referred to as "ERISA").
(d) WHFC and the BANK do not currently participate in, nor
have they ever participated in, any multiemployer plan, as such term is defined
in Section 3(37) of ERISA.
(e) All of the Pension Benefit Plans have complied and comply
currently in all material respects, both as to form and operation, with the
provisions of ERISA and the Code, where required in order to be tax-qualified
under Section 401(a) of the Code, and all other applicable laws, rules and
regulations. Neither WHFC nor the BANK is aware of any event which might
jeopardize the tax qualified status of any PENSION BENEFIT PLAN. Each PENSION
BENEFIT PLAN which is intended to be qualified under Section 401(a) of the CODE
has received a determination letter from the IRS which considers amendments made
to the CODE by the Tax Reform Act of 1986. All reports required by any
governmental agency with respect to each PENSION BENEFIT PLAN have been timely
filed with such agency and, where required, distributed to participants and
beneficiaries of such PENSION BENEFIT PLAN within the time required by law.
(f) Each "employee welfare benefit plan," as defined in
Section 3(1) of ERISA, (each such plan together with any related trust or other
funding mechanism, as maintained by WHFC or the BANK, hereinafter referred to as
a "WELFARE BENEFIT PLAN") has been administered to date in all material respects
in compliance with the requirements of the CODE and ERISA, and, where
applicable, all state insurance laws, and all reports required by any
governmental agency with respect to each WELFARE BENEFIT PLAN has been timely
filed with such agency and, where required, distributed to participants and
beneficiaries of such WELFARE BENEFIT PLAN within the time required by law, and
each Plan which constitutes a "group health plan" as defined in Section
5000(b)(1) of the CODE, is and has been administered in material compliance with
the continuation of coverage provisions contained in Section 4980B of the CODE.
(g) Neither WHFC nor the BANK nor, to the knowledge of WHFC or
the BANK, any plan fiduciary of any WELFARE BENEFIT PLAN or PENSION BENEFIT PLAN
has engaged in any transaction in violation of Section 406(a) or (b) of ERISA
(for which no exemption exists under Section 408 of ERISA) or any "prohibited
transaction" (as defined in Section 4975(c)(1) of the CODE) for which no
exemption exists under Section 4975(c)(1) of the CODE.
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(h) Each PENSION BENEFIT PLAN which is intended to be an
employee stock ownership plan ("ESOP"), or defined in Section 4975(e)(7) of the
CODE, is and has been administered in substantial compliance with the applicable
provisions of Sections 4975 and 409 of the CODE and the regulations thereunder;
and any outstanding loan to which any such ESOP is a party constitutes an
"exempt loan" as described in Section 54.4975-7 of the IRS Regulations.
(i) The ESOP is in compliance with all applicable laws,
including the Change in Bank Control Act of 1978, 12 USC 1817(j).
SECTION 3.21. ENVIRONMENTAL MATTERS. (a) WHFC and the BANK, to
the knowledge of WHFC or the BANK, are in material compliance with all
applicable ENVIRONMENTAL LAWS (hereinafter defined). WHFC and the BANK have not
received any written or oral communication from any organization, person or
otherwise, which alleges that either (i) WHFC or the BANK is not in compliance
with all applicable ENVIRONMENTAL LAWS or (ii) any properties or assets of WHFC
or the BANK may have been affected by any MATERIALS of ENVIRONMENTAL CONCERN
(hereinafter defined). All permits and other governmental authorizations
currently held or being applied for by WHFC or the BANK pursuant to the
ENVIRONMENTAL LAWS are set forth in Section 3.21(a) of the WHFC DISCLOSURE
SCHEDULE.
(b) There is no ENVIRONMENTAL CLAIM (hereinafter defined)
pending or, to the knowledge of WHFC or the BANK, threatened (i) against WHFC or
the BANK, (ii) against any person or entity whose liability for any
ENVIRONMENTAL CLAIM has or may have been retained or assumed by WHFC or the BANK
either contractually or by operation of law, or (iii) against any real or
personal property which WHFC or the BANK owns, leases, manages, supervises or
participates in the management of, or, to the knowledge of WHFC or the BANK, in
which WHFC or the BANK holds a security interest in connection with a loan or
loan participation, other than such as would not, either individually or in the
aggregate, have a material adverse effect on WHFC or the BANK.
(c) There are no present or, to the knowledge of WHFC and the
BANK, past activities, conditions, or incidents, including, without limitation,
the release or disposal of any MATERIAL of ENVIRONMENTAL CONCERN, that could
reasonably form the basis of any ENVIRONMENTAL CLAIM against WHFC or the BANK or
against any person or entity whose liability for any ENVIRONMENTAL CLAIM has or
may have been retained or assumed by WHFC or the BANK, either contractually or
by operation of law, other than such as would not, either individually or in the
aggregate, have a material adverse effect on WHFC or the BANK.
(d) Section 3.21(d) of the WHFC DISCLOSURE SCHEDULE sets forth
an accurate and complete list of outstanding loans of the BANK as to which the
borrower has submitted (or is required to submit) to the BANK any environmental
audits or reports regarding any real property securing such loan and a brief
description of the environmental audit or report,
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to the extent applicable. WHFC and the BANK will make available to CAMCO all
such environmental audits and reports.
(e) As used in this AGREEMENT:
(i) "ENVIRONMENTAL CLAIM" means any claim, cause of
action or notice (written or oral) by any person or entity alleging potential
liability (including, without limitation, potential liability for investigatory
costs, cleanup costs, governmental response costs, natural resources damages,
property damages, personal injuries or penalties) arising out of, based on or
resulting from (I) the presence, or release into the environment, of any
MATERIAL of ENVIRONMENTAL CONCERN at any location, whether or not owned by WHFC
or the BANK or (II) circumstances forming the basis of any violation, or alleged
violation, of any ENVIRONMENTAL LAW;
(ii) "ENVIRONMENTAL LAWS" means all laws and
regulations relating to pollution or
protection of human health or the environment including, without limitation,
laws and regulations relating to emissions, discharges, releases or threatened
releases of MATERIALS of ENVIRONMENTAL CONCERN, or otherwise relating to the
use, treatment, storage, disposal, transport or handling of MATERIALS of
ENVIRONMENTAL CONCERN; and
(iii) "MATERIALS of ENVIRONMENTAL CONCERN" shall mean
(I) any "hazardous waste" as defined in 42 U.S.C. Section 6903, as amended from
time to time, and regulations promulgated thereunder from time to time; (II) any
"hazardous substance" as defined in 42 U.S.C. Section 9601, as amended from time
to time, and regulations promulgated thereunder from time to time; (III)
asbestos; (IV) PCB's; (V) any substance the presence of which on WHFC's or the
BANK's property is prohibited by any applicable law, ordinance, or regulation;
(VI) petroleum products; and (VII) underground storage tanks and above ground
storage tanks.
SECTION 3.22. EMPLOYMENT MATTERS. WHFC and the BANK are in
compliance with all federal, state or other applicable laws respecting
employment and employment practices, terms and conditions of employment and
wages and hours and have not and are not engaged in any unfair labor practice,
except where such failure to comply or such practice would not have a material
adverse effect on the financial condition, results of operations, business or
prospects of WHFC and the BANK taken as a whole. No unfair labor practice
complaint against WHFC or the BANK is pending before any governmental agency or
court and there is no labor strike, dispute, slowdown or stoppage actually
pending, or to the knowledge of WHFC and the BANK, threatened against or
involving WHFC or the BANK. No representation question exists in respect of the
employees of WHFC or the BANK and no labor grievance which might have a material
adverse effect upon WHFC or the BANK or the conduct of their businesses is
pending or, to the knowledge of WHFC or the BANK, threatened. Neither WHFC nor
the BANK has entered into any collective bargaining agreement with any labor
organization with respect to any group of employees of WHFC or the BANK, and, to
the knowledge of WHFC and the BANK, there is no present effort nor existing
proposal to attempt to unionize any group of employees of WHFC or the BANK.
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SECTION 3.23. UNTRUE STATEMENTS AND OMISSIONS. The
certificates, statements and other information furnished to CAMCO in writing by
or on behalf of WHFC and the BANK in connection with the transactions
contemplated hereby, including, but not limited to, disclosures and information
set forth in the WHFC DISCLOSURE SCHEDULE, but excluding statements or
information pertaining to parties unrelated to WHFC or the BANK, do not contain
any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.
SECTION 3.24. PROXY MATERIALS. None of the information
relating to WHFC or the BANK included in the JOINT PROXY STATEMENT which is to
be mailed to the shareholders of WHFC and CAMCO in connection with any meeting
of shareholders convened in accordance with Sections 1.03, 6.02 and 6.03 of this
AGREEMENT will, at the time the JOINT PROXY STATEMENT is mailed or at the time
of the meeting to which the JOINT PROXY STATEMENT relates, contain any untrue
statement of a material fact, or omit to state any material fact necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not false or misleading, except to the extent it contains
information about CAMCO provided in writing to WHFC or the BANK by CAMCO.
SECTION 3.25. BROKERS. Except for amounts payable to Xxxxxxx
Xxxx & Company, a division of Xxxxx, Xxxxxxxx & Xxxx, Inc. (hereinafter referred
to as "XXXX"), as disclosed in Section 3.25 of the WHFC DISCLOSURE SCHEDULE,
there are no claims or agreements for brokerage commission, finder's fees, or
similar compensation in connection with the transactions contemplated by this
AGREEMENT payable by WHFC or the BANK.
SECTION 3.26. REGULATORY ENFORCEMENT. Neither WHFC nor the
BANK is subject to, or has received any notice or advice that it is or may
become subject to, any order, agreement or memorandum of understanding of any
federal or state agency charged with the supervision or regulation of banks or
savings banks or engaged in the insurance of deposits or any other governmental
agency having supervisory or regulatory authority with respect to WHFC or the
BANK; neither WHFC nor the BANK has received any notice or advice that it is not
in substantial compliance with any statute or regulation, except where failure
to comply would not have a material adverse effect upon WHFC and the BANK taken
as a whole; and WHFC and the BANK have received no notice from any governmental
authority threatening to revoke any license, franchise, permit or governmental
authorization.
SECTION 3.27. TAX TREATMENT OF MERGER. Neither WHFC nor the
BANK has taken any action that is reasonably likely to prevent the transactions
contemplated hereby, including the MERGER, from qualifying as a reorganization
within the meaning of Section 368(a) of the CODE.
SECTION 3.28. SUBSIDIARIES: EQUITY INTEREST. The term
"subsidiary" means an organization or entity which is consolidated or is
eligible to be consolidated with a party to this AGREEMENT for financial
reporting purposes. Except for the BANK, WHFC has no subsidiaries. Except for
shares of the BANK owned by WHFC and of the Federal Home Loan
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Bank of Cincinnati owned by the BANK or as set forth in Section 3.28 of the WHFC
DISCLOSURE SCHEDULE, neither WHFC nor the BANK owns, beneficially or otherwise,
any shares of EQUITY SECURITIES (as defined below) or similar interest of any
corporation, bank, business trust, association or similar organization. "EQUITY
SECURITIES" of an issuer means capital stock or other equity securities of such
issuer, options, warrants, scrip, rights to subscribe to, calls or commitments
of any character whatsoever relating to, or securities or rights convertible
into, shares of any capital stock or other equity securities of any issuer, or
contracts, commitments, understandings or arrangements by which such issuer is
or may become bound to issue additional shares of its capital stock or other
equity securities of such issuer, or options, warrants, scrip or rights to
purchase, acquire, subscribe to, calls on or commitments for any shares of its
capital stock or other equity securities. Neither WHFC nor the BANK is a party
to any partnership or joint venture.
SECTION 3.29. MANAGEMENT RECOGNITION PLAN. The WHFC DISCLOSURE
SCHEDULE lists the names of the recipients, award dates, forfeitures,
distribution dates and number of shares awarded and unawarded relating to and
arising out of the Management Recognition Plan of WHFC. Thirty-three thousand,
sixty (33,060) WHFC SHARES are unawarded and may be returned to WHFC at the
direction of the WHFC Board of Directors. No trustee reports or accounts have
ever been made.
SECTION 3.30. YEAR 2000. WHFC and the BANK have delivered to
CAMCO a complete and accurate copy of its year 2000 plan, including an estimate
of the anticipated associated costs for addressing the issues set forth in the
applicable statements of the Federal Financial Institutions Examination Council
and such plan is in material compliance with the schedule set forth in such
statements.
SECTION 3.31. FAIRNESS OPINION. WHFC has received an opinion
of Xxxx to the effect that, as of the date hereof, the consideration to be
received by the shareholders of WHFC pursuant to this AGREEMENT is fair from a
financial point of view to the shareholders of WHFC.
SECTION 3.32. REQUIRED VOTE; ANTI-TAKEOVER PROVISIONS. (a) The
affirmative vote of the holders of a majority of the issued and outstanding
shares of WHFC is the only vote of shareholders of WHFC required to approve this
AGREEMENT and the transactions contemplated hereby on behalf of WHFC.
(b) Neither WHFC nor the BANK is an "interested shareholder"
of CAMCO within the meaning of Section 203(c)5 of the DGCL.
(c) The Board of Directors of WHFC has taken all necessary
steps by all required votes so that the provisions of Article XIV of WHFC's
Articles of Incorporation do not and will not apply to this AGREEMENT and the
WHFC STOCK OPTION AGREEMENT and the transactions contemplated hereby and
thereby.
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(d) This AGREEMENT and the WHFC STOCK OPTION AGREEMENT have
been approved by more than two-thirds of WHFC's "continuing directors" as
defined in WHFC's Articles of Incorporation.
SECTION 3.33. NO APPRAISAL RIGHTS. Shareholders of WHFC are
not entitled to the rights described in Section 23-1-44-8 of the IBCL.
SECTION 3.34. DISABILITY PLANS. WHFC and the BANK are parties
to or participant in or sponsor only one disability benefit plan or disability
salary continuation plan.
SECTION 3.35. GRANTOR TRUST AGREEMENT. The Grantor Trust of
June 22, 1998 has never been funded with cash or other assets by WHFC or the
BANK and no reports or accounts have ever been made by the Trustee.
ARTICLE FOUR
REPRESENTATIONS AND WARRANTIES OF CAMCO
CAMCO represents and warrants to WHFC and the BANK that each
of the following statements is true and accurate in all material respects:
SECTION 4.01. ORGANIZATION AND STANDING. CAMCO is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware and has the corporate power and authority to own or
hold under lease all of its properties and assets and to conduct its business
and operations as presently conducted. CAMCO is registered as a savings and loan
holding company under the Home Owners Loan Act ("HOLA"). CAMCO is in compliance
in all material respects with all applicable local, state and federal laws and
regulations, including without limitation, the OTS Regulations.
SECTION 4.02. QUALIFICATION. CAMCO is either duly qualified to
do business and in good standing in each jurisdiction in which such
qualification is required or the failure to so qualify would not have a material
adverse effect on the business of CAMCO.
SECTION 4.03. AUTHORITY OF CAMCO. This AGREEMENT has been duly
executed and delivered by CAMCO. Subject to the adoption of this AGREEMENT by
the CAMCO shareholders and to the filing of all requisite regulatory notices and
the receipt of all requisite regulatory approvals,(a) CAMCO has all requisite
corporate power and authority to enter into this AGREEMENT and to perform its
obligations hereunder; (b) the execution and delivery of this AGREEMENT and the
consummation of the transactions contemplated hereby have been duly authorized
by all necessary corporate action by CAMCO; and (c) subject to applicable
bankruptcy, insolvency, reorganization and moratorium laws and other laws of
general applicability affecting the enforcement of creditors' rights generally,
and the effect of rules of law governing specific performance, injunctive relief
and other equitable remedies on the enforceability of such documents, and except
to the extent such enforceability may be limited by laws relating to safety and
soundness of insured depository institutions as set forth in 00 X.X.X
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Section 1818(b) or by the appointment of a conservator by the FDIC, this
AGREEMENT is the valid and binding agreement of CAMCO, enforceable against CAMCO
in accordance with its terms.
SECTION 4.04. GOVERNING DOCUMENTS. CAMCO has made available,
or will promptly make available, to WHFC true and accurate copies of the CAMCO
Certificate of Incorporation and Bylaws and has granted WHFC access to all
records of all meetings and other corporate actions occurring before the
EFFECTIVE TIME by the stockholders, Board of Directors and Committees of the
Board of Directors of CAMCO. The minute books of CAMCO contain, in all material
respects, complete and accurate records of all meetings and other corporate
actions of their shareholders, Boards of Directors and Committees of the Boards
of Directors.
SECTION 4.05. NO CONFLICTS. The execution and delivery of this
AGREEMENT and, subject to the adoption of this AGREEMENT by the shareholders of
CAMCO and the regulatory filings and approvals referenced in Section 1.04 of
this AGREEMENT, the consummation of the transactions contemplated hereby will
not (a) conflict with or violate any provision of or result in the breach of any
provision of the Certificate of Incorporation or Bylaws of CAMCO; (b) conflict
with or violate any provision of or result in the breach or the acceleration of
or entitle any party to accelerate (whether upon or after the giving of notice
or lapse of time or both) any obligation under, or otherwise materially affect
the terms of, any mortgage, lien, lease, agreement, license, instrument, order,
arbitration award, judgment or decree to which CAMCO is a party or by which
CAMCO or its property or assets is bound; (c) require the consent of any party
to any agreement or commitment to which CAMCO is a party or by which CAMCO or
its property or assets is bound, the failure to obtain which could, individually
or in the aggregate with all the other failures to obtain required consents,
have a material adverse effect on the business, operations, condition (financial
or otherwise) or prospects of CAMCO; (d) result in the creation or imposition of
any lien, charge, pledge, security interest or other encumbrance upon any
property or assets of CAMCO; or (e) violate or conflict with any applicable law,
ordinance, rule or regulation, including, without limitation, the rules and
regulations of or conditions of approval of applications or notices to the OTS
or the FDIC.
SECTION 4.06. CONSENTS. No consent, approval, order or
authorization of, or registration, declaration or filing with, any governmental
authority is required in connection with the execution and delivery of this
AGREEMENT by CAMCO or the consummation by CAMCO of the transactions contemplated
hereby, except for filings, authorizations, consents or approvals referenced in
Sections 1.02, 1.03 and 1.04 of this AGREEMENT.
SECTION 4.07. CAPITALIZATION. The authorized capital of CAMCO
consists solely of (i) 8,900,000 shares of common stock, par value One Dollar
($1.00) per share, 5,720,888 of which are issued and outstanding and 369,521 of
which are reserved for issuance upon the exercise of outstanding stock options
(the "CAMCO OPTIONS"), and (ii) 100,000 preferred shares, One Dollar ($1.00) par
value per share, none of which is issued or outstanding. All of the outstanding
CAMCO shares are, and, when issued in accordance with this AGREEMENT, the CAMCO
SHARES to be issued upon exchange for the WHFC SHARES shall be, duly authorized,
validly issued, fully paid and nonassessable, issued in full compliance with all
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applicable laws, and not issued in violation of the preemptive right of any
person. Except for the CAMCO OPTIONS, there are no outstanding subscription
rights, options, conversion rights, warrants or other agreements or commitments
of any nature whatsoever (either firm or conditional) obligating CAMCO to issue,
deliver or sell, cause to be issued, delivered or sold, or restricting CAMCO
from selling any additional CAMCO shares, or obligating CAMCO to grant, extend
or enter into any such agreement or commitment.
SECTION 4.08. SEC REPORTS. CAMCO has delivered to WHFC copies
of the following documents, each of which has been filed with the SEC
(hereinafter referred to as the "CAMCO SEC FILINGS"):
(a) The Annual Reports on Form 10-K for each of the
fiscal years ended December 31, 1998, 1997 and 1996;
(b) The Annual Report to Stockholders for each of the
fiscal years ended December 31, 1998, 1997 and 1996;
(c) The Proxy Statement for use in connection with each
of the 1999, 1998 and 1997 Annual Meetings of
Stockholders; and
(d) The Quarterly Report on Form 10-Q for the quarter
ended March 31, 1999.
The CAMCO SEC FILINGS did not, as of the dates on which such reports were filed
with the SEC, contain any untrue statement of a material fact or omit any
material fact required to be stated therein or necessary to make the statements
contained therein, in light of the circumstances under which they were made, not
misleading.
SECTION 4.09. FINANCIAL STATEMENTS. (a) The consolidated
statements of financial condition of CAMCO as of December 31, 1998 and 1997, and
the related consolidated statements of earnings, stockholders' equity and cash
flows for each of the three fiscal years ended December 31, 1998, 1997 and 1996,
together with notes thereon, examined and reported upon by Xxxxx Xxxxxxxx,
L.L.P., (hereinafter referred to as "GRANT") complete copies of which have
previously been delivered to WHFC (hereinafter referred to as the "CAMCO AUDITED
FINANCIALS"), have been prepared in conformity with GAAP applied on a consistent
basis and fairly present the financial position of CAMCO at such dates and the
results of its operations and cash flows for such periods.
(b) The unaudited consolidated statements of financial
condition of CAMCO as of March 31, 1999 and March 31, 1998, and the related
unaudited consolidated statements of earnings, stockholders' equity and cash
flows for each of the three months ended March 31, 1999 and 1998, complete
copies of which have previously been delivered to WHFC (hereinafter referred to
as the "CAMCO INTERIM FINANCIALS"), have been prepared in conformity with GAAP
applied on a consistent basis and fairly present the financial position of CAMCO
at such dates and the results of its operations and cash flows for such periods.
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(c) The audits of CAMCO have been conducted in all material
respects in accordance with GAAP. The books and records of CAMCO are being
maintained in material compliance with applicable legal and accounting
requirements and such books and records accurately reflect in all material
respects all dealings and transactions in respect of the business, assets,
liabilities and affairs of CAMCO.
(d) Except as disclosed in the CAMCO INTERIM FINANCIALS, as of
March 31, 1999, CAMCO had no liabilities or obligations material to the business
condition (financial or otherwise) of CAMCO taken as a whole, whether accrued,
absolute, contingent or otherwise, and whether due or to become due.
(e) The CAMCO AUDITED FINANCIALS and the CAMCO INTERIM
FINANCIALS did not, as of the dates thereof, contain any untrue statement of a
material fact or omit to state any material fact necessary to make the
information contained therein, in light of the circumstances under which they
were made, not misleading.
SECTION 4.10. ABSENCE OF MATERIAL ADVERSE CHANGE. Since March
31, 1999, there have been no material adverse changes in the financial
condition, assets, liabilities, obligations, properties, business or prospects
of CAMCO and its consolidated subsidiaries, taken as a whole.
SECTION 4.11. ALLOWANCE FOR LOAN LOSSES. The allowance for
loan losses reflected on the CAMCO AUDITED FINANCIALS is adequate as of the date
hereof in all material respects under the requirements of GAAP to provide for
reasonably anticipated losses on outstanding loans.
SECTION 4.12. REPORTS AND RECORDS. CAMCO has filed all reports
and maintained all records required to be filed or maintained by them under
various rules and regulations of the SEC, the OTS or the FDIC. All such
documents and reports complied in all material respects with applicable
requirements of laws and regulations in effect at the time of the filing of such
documents and contained in all material respects the information required to be
stated therein. None of such documents, when filed, contained any untrue
statement of a material fact or omitted 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 4.13. TAXES. CAMCO has duly and timely filed all
federal, state, county and local income, profits, franchise, excise, sales,
customs, property, use, occupation, withholding, social security and other tax
and information returns and reports required to have been filed by them through
the date hereof, and has paid or accrued all taxes and duties (and all interest
and penalties with respect thereto) due or claimed to be due by CAMCO. CAMCO has
no liability for any taxes or duties (or interest or penalties with respect
thereto) of any nature whatsoever, and there is no basis for any additional
material claims or assessments, other than with respect to liabilities for taxes
and duties which may have accrued since December 31, 1999, in the ordinary
course of business. No proposed additional taxes, interest or penalties have
been asserted by applicable taxing authorities.
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SECTION 4.14. PERMITS AND LICENSES. CAMCO has all material
permits, licenses, orders and approvals of all federal, state or local
governmental or regulatory bodies required for it to conduct its business as
presently conducted and all such material permits, licenses, orders and
approvals are in full force and effect, without the threat of suspension or
cancellation. None of such permits, licenses, orders or approvals will be
adversely affected by the consummation of the transactions contemplated by this
AGREEMENT.
SECTION 4.15. UNTRUE STATEMENTS AND OMISSIONS. The
certificates, statements and other information furnished to WHFC in writing by
or on behalf of CAMCO in connection with the transactions contemplated hereby do
not contain any untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading.
SECTION 4.16. PROXY MATERIALS. None of the information
relating to CAMCO or included in the JOINT PROXY STATEMENT will, at the time the
JOINT PROXY STATEMENT is mailed or at the time of the meetings to which the
JOINT PROXY STATEMENT relates, be false or misleading with respect to any
material fact, or omit to state any material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not false or misleading.
SECTION 4.17. BROKERS. Except for amounts payable to Tucker,
Anthony, Cleary, Gull, there are no claims or agreements for brokerage
commissions, finder's fees, or similar compensation in connection with the
transactions contemplated by this AGREEMENT payable by CAMCO.
SECTION 4.18. REGULATORY ENFORCEMENT. CAMCO is not subject to,
nor has it received any notice or advice that it is not in substantial
compliance with any statute or regulation, or that it is or may become subject
to, any order, agreement or memorandum of understanding of any federal or state
agency charged with the supervision or regulation of savings banks, savings
associations or holding companies of savings banks or savings associations or
engaged in the insurance of deposits or any other governmental agency having
supervisory or regulatory authority with respect to CAMCO, and CAMCO has
received no notice from any governmental agency threatening to revoke any
license, franchise, permit or governmental authority.
SECTION 4.19. TAX TREATMENT OF MERGER. CAMCO has taken no
action or has any knowledge of any fact or circumstance that is reasonably
likely to prevent the transactions contemplated hereby, including the MERGER,
from qualifying as a "reorganization" within the meaning of Section 368(a) of
the CODE.
SECTION 4.20. WHFC SHARES OWNED BY CAMCO. Except as provided
in the WHFC STOCK OPTION AGREEMENT, neither CAMCO nor any of its subsidiaries
beneficially own any WHFC SHARES.
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SECTION 4.21. FAIRNESS OPINION. CAMCO has received an opinion
of Tucker, Anthony, Xxxxxx, Gull to the effect that as of the date hereof the
consideration to be paid to the shareholders of WHFC pursuant to this AGREEMENT
is fair from a financial point of view to the shareholders of CAMCO.
SECTION 4.22. LITIGATION. Except as disclosed in the CAMCO SEC
FILINGS, (a) there are no material actions, suits, proceedings or investigations
pending or threatened against or affecting the business, operations or financial
condition of CAMCO in any court or before any federal, state, municipal or other
governmental department, commission, board, bureau, agency or instrumentality,
(b) the management of CAMCO has no knowledge of any basis for any such action,
suit, proceeding or investigation, and (c) CAMCO is not in default in respect of
any judgment, order, writ, injunction or decree of any court or any federal,
state, municipal or other governmental department, commission, board, bureau,
agency or instrumentality.
SECTION 4.23. REQUIRED VOTE. The affirmative vote of the
holders of a majority of the issued and outstanding shares of CAMCO is the only
vote of shareholders of CAMCO required to approve this AGREEMENT and the
transactions contemplated hereby on behalf of CAMCO.
SECTION 4.24. MATERIAL CONTRACTS. CAMCO is not in material
default under any material contract and no claim of such default by any party
has been made or is now, to the knowledge of CAMCO, threatened. There does not
exist any event which, with notice or lapse of time or both, would constitute a
material default by CAMCO under, or would excuse performance by any party
thereto from, any material contract.
SECTION 4.25. INSURANCE. All material properties and
operations of CAMCO are adequately insured for its benefit. The performance by
the officers and employees of CAMCO of their duties is bonded in such amounts
and against such risks as are usually insured against or bonded by entities
similarly situated, under valid and enforceable policies of insurance or bonds
issued by insurers or bonding companies of recognized responsibility, financial
or otherwise.
SECTION 4.26. ENVIRONMENTAL MATTERS. (a) CAMCO, to its
knowledge, is in material compliance with all applicable ENVIRONMENTAL LAWS.
CAMCO has not received any written or oral communication from any organization,
person or otherwise, which alleges that either (i) CAMCO is not in compliance
with all applicable ENVIRONMENTAL LAWS or (ii) any properties or assets of CAMCO
may have been affected by any MATERIALS OF ENVIRONMENTAL CONCERN.
(b) There is no ENVIRONMENTAL CLAIM pending or, to the
knowledge of CAMCO, threatened (i) against CAMCO, (ii) against any person or
entity whose liability for any ENVIRONMENTAL CLAIM has or may have been retained
or assumed by CAMCO either contractually or by operation of law, or (iii)
against any real or personal property which CAMCO owns, leases, manages,
supervises or participates in the management of, or, to the knowledge of CAMCO,
in which CAMCO holds a security interest in connection with a loan or loan
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participation, other than such as would not, either individually or in the
aggregate, have a material adverse effect on CAMCO.
(c) There are no present or, to the knowledge of CAMCO, past
activities, conditions, or incidents, including, without limitation, the release
or disposal of any MATERIAL OF ENVIRONMENTAL CONCERN that could reasonably form
the basis of any environmental claim against CAMCO or against any person or
entity whose liability for any environmental claim has or may have been retained
or assumed by CAMCO, either contractually or by operation of law, other than
such as would not, either individually or in the aggregate, have a material
adverse effect on CAMCO.
SECTION 4.27. YEAR 2000. CAMCO's Year 2000 Plan is in material
compliance with the applicable statements of the Federal Financial Institutions
Examination Council.
ARTICLE FIVE
COVENANTS
SECTION 5.01. CONDUCT OF WHFC'S AND THE BANK'S BUSINESS. From
the date of this AGREEMENT until the EFFECTIVE TIME, WHFC and the BANK, except
with the prior written consent of CAMCO, which shall not be unreasonably
withheld, will each conduct its business only in the ordinary course, in
accordance with past practices and policies and in compliance with all
applicable statutes, rules and regulations. Notwithstanding the foregoing,
without the prior written consent of CAMCO, which shall not be unreasonably
withheld, neither WHFC nor the BANK will:
(a) Except for the WHFC STOCK OPTION AGREEMENT, authorize
or agree to authorize the creation or issuance of, or
issue, sell or dispose of, or create any obligation
to issue, sell or dispose of, any stock, notes, bonds
or other securities of which WHFC or the BANK is the
issuer, or any obligations convertible into or
exchangeable for any shares of its capital stock,
other than WHFC shares issued in connection with the
exercise of WHFC OPTIONS;
(b) Declare, set aside, pay or make any dividend or other
distribution on its capital stock, or directly or
indirectly redeem, purchase or otherwise acquire any
shares thereof or enter into any agreement with
respect to the foregoing, except that WHFC may
declare and pay a regular quarterly cash dividend of
$0.12 per share in each calendar quarter between the
date of this AGREEMENT and the EFFECTIVE TIME. CAMCO
and WHFC will coordinate dividends so that only one
dividend will be paid in each calendar quarter.
(c) Effect any stock split, recapitalization,
combination, exchange of shares, readjustment or
other reclassification;
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(d) Amend their Articles of Incorporation, Constitution
or Bylaws;
(e) Purchase, sell, assign or transfer any material
tangible asset or any material patent, trademark,
trade name, copyright, license, franchise, design or
other intangible assets or property, other than in
the ordinary course of business and in accordance
with past practice;
(f) Mortgage, pledge, grant or suffer to exist any lien
or other encumbrance or charge on any assets or
properties, tangible or intangible, except for liens
for taxes not yet delinquent, assets pledged as
collateral to secure borrowings from the FHLB or to
secure public deposits and such other liens,
encumbrances or charges which do not materially or
adversely affect its financial position;
(g) Waive any rights of material value or cancel any
material debts or claims;
(h) Incur any material obligation or liability (absolute
or contingent), including, without limitation, any
tax liability, or pay any material liability or
obligation (absolute or contingent), other than
liabilities and obligations incurred in the ordinary
course of business and borrowings from the FHLB;
(i) Cause any material adverse change in the amount or
general composition of deposit liabilities or other
liabilities;
(j) Except as specifically provided herein, enter into or
amend any employment contract with any of its
employees, increase the compensation payable to any
officer or director or any relative of any such
officer or director or become obligated to increase
any such compensation, provided, that officers who
are not a party to an employment contract or
severance agreement may receive increases in
compensation consistent with past practice;
(k) Except as specifically provided herein, adopt or
amend in any material respect any employee or
director benefit plan, severance plan or collective
bargaining agreement or make awards or distributions
under any employee benefit plan not consistent with
past practice or custom;
(l) Acquire any stock or other equity interest in any
corporation, partnership, trust, joint venture or
other entity, except FHLB stock;
(m) Make any material capital expenditure or commitment
for any material addition to property, plant, or
equipment;
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(n) Originate or issue a commitment to originate any loan
secured by one- to four-family residential real
estate in a principal amount of $400,000 or more or
any loan secured by nonresidential real estate in a
principal amount of $400,000 or more;
(o) Except for FHLB advances, the aggregate amount of
which at any time shall not exceed Thirty-three
Million Dollars ($33,000,000), plus such additional
amount as may be obtained with the right of
prepayment at any time without penalty or premium,
and deposit taking in the ordinary course of its
business, borrow or agree to borrow any funds,
including but not limited to repurchase transactions,
or indirectly guarantee or agree to guarantee any
obligations of others;
(p) Establish any new lending programs or make any
changes in its policies concerning which persons may
approve loans;
(q) Enter into any securities transactions for its own
account or purchase or otherwise acquire any
investment security for its own account other than
U.S. government and U.S. agency obligations and
deposits in an overnight account at the FHLB;
(r) Increase or decrease the rate of interest paid on
time deposits or certificates of deposits, except in
a manner and pursuant to policies consistent with
past practices in relation to rates prevailing in the
BANK's market;
(s) Foreclose upon or otherwise take title to or
possession or control of any real property without
first obtaining a Phase I Environmental Report
thereon which indicates that the property is free of
pollutants, contaminants or hazardous or toxic waste
materials including asbestos and petroleum products;
provided, however, that the BANK shall not be
required to obtain such a report with respect to
single-family, non-agriculture residential property
of one acre or less to be foreclosed upon unless it
has reason to believe such property may contain any
such pollutants, contaminants, waste materials
including asbestos or petroleum products; or
(t) Agree, whether in writing or otherwise, to take any
action described in this Section 5.01.
SECTION 5.02. ACQUISITION TRANSACTIONS. WHFC and the BANK
shall (i) not, directly or indirectly, solicit or initiate any proposals or
offers from any person or entity, or negotiate with any such person or entity,
regarding any acquisition or purchase of all or a material amount of the assets
of, any equity securities of, or any merger, consolidation or business
combination with, WHFC or the BANK (hereinafter collectively referred to as
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"ACQUISITION TRANSACTIONS"), (ii) not disclose to any person any information not
customarily disclosed publicly or provide access to its properties, books or
records or otherwise assist or encourage any person in connection with any of
the foregoing, and (iii) give CAMCO prompt notice of any such inquiries, offers
or proposals. The foregoing shall not apply however to the consideration of an
inquiry, offer or proposal not solicited by WHFC or the BANK or any of their
respective officers, directors, agents or affiliates which relates to the
possible sale or other disposition of WHFC SHARES or the BANK SHARES by
shareholders or the possible sale or other disposition of all or substantially
all of WHFC's or the BANK's assets to, or merger or consolidation with, another
corporation or association if and to the extent that the board of directors of
WHFC reasonably determines in good faith after consultation with Xxxx and
counsel to WHFC that failure to consider such ACQUISITION TRANSACTION could
reasonably be expected to constitute a breach of its fiduciary duties to the
shareholders of WHFC; provided, however, that WHFC shall give CAMCO prompt
notice of any such proposal of an ACQUISITION TRANSACTION and keep CAMCO
promptly informed regarding the substance thereof and the response of the board
of directors of WHFC thereto.
SECTION 5.03. ACCOUNTING POLICIES. Before the EFFECTIVE TIME
and at the request of CAMCO, WHFC or the BANK shall promptly (a) establish and
take such reserves and accruals to conform the BANK's loan, accrual and reserve
policies to CAMCO's policies; (b) establish and take such accruals, reserves and
charges in order to implement such policies in respect of excess facilities and
equipment capacity, severance costs, litigation matters, write-off or write-down
of various assets and other appropriate accounting adjustments; and (c)
recognize for financial accounting purposes such expenses of the MERGER and
restructuring charges related to or to be incurred in connection with the
MERGER, to the extent permitted by law and consistent with GAAP and with the
fiduciary duties of the officers and directors of WHFC and the BANK; provided,
however, that neither WHFC nor the BANK shall be obligated to make any such
changes or adjustments unless they have received a written certification from
CAMCO that all conditions set forth in Sections 7.01(a) through (e), have been
satisfied or waived and further provided that no basis for termination of this
AGREEMENT by any party pursuant to Article Eight is then extant.
. SECTION 5.04 TAX REPRESENTATION. WHFC and the BANK will use their
reasonable efforts to cause the MERGER, and will take no action which would
cause the MERGER not, to qualify for treatment as a "reorganization" within the
meaning of Section 368(a) of the CODE for federal income tax purposes.
ARTICLE SIX
FURTHER AGREEMENTS
SECTION 6.01. REGULATORY APPROVALS; COOPERATION. (a) CAMCO
shall use its best efforts to file within 45 days of the date hereof all
REGULATORY APPLICATIONS required in order to consummate the MERGER. CAMCO shall
keep WHFC reasonably informed as to the status of such applications and make
available to WHFC copies of such
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applications as filed and any supplementary filed materials and all responses
from the regulatory authorities. WHFC and the BANK shall have the right to
review and approve in advance all characterizations of the information relating
to WHFC or the BANK, as the case may be, which appear in any REGULATORY
APPLICATION. In addition, CAMCO shall furnish to WHFC for review a copy of each
REGULATORY APPLICATION prior to its filing.
(b) WHFC and the BANK will cooperate and will cause their
respective directors, officers, employees, agents and advisors to cooperate, to
the extent reasonable or necessary, with CAMCO in connection with the
preparation of the REGULATORY APPLICATIONS and the REGISTRATION STATEMENT.
(c) CAMCO will cooperate and will cause its directors,
officers, employees, agents and advisors to cooperate, to the extent reasonable
or necessary, with WHFC in connection with the preparation of the REGISTRATION
STATEMENT and the JOINT PROXY STATEMENT.
SECTION 6.02. SPECIAL MEETING OF SHAREHOLDERS OF WHFC. WHFC
shall take all steps necessary to duly call, give notice of, convene and hold a
meeting of its shareholders for the purpose of voting upon this AGREEMENT as
required by applicable law. WHFC shall use its reasonable efforts to hold such
meeting as soon as practicable following the date of this AGREEMENT. The Board
of Directors of WHFC shall (i) to the extent consistent with their fiduciary
duties, recommend to its shareholders the adoption of this AGREEMENT and the
approval of the transactions contemplated hereby and any other matters to be
submitted to the shareholders in connection therewith and (ii) use their
reasonable efforts to obtain the necessary adoptions by the shareholders of this
AGREEMENT, any amendments hereto, and the transactions contemplated hereby.
Notwithstanding the foregoing, if the Board of Directors of WHFC shall have
reasonably determined in good faith in accordance with Section 5.02 of this
AGREEMENT that such recommendation is reasonably likely to constitute a breach
of its fiduciary duties to the shareholders of WHFC, then the Board of Directors
of WHFC shall not be obligated to recommend to its shareholders adoption of this
AGREEMENT or to present this AGREEMENT to the shareholders of WHFC for their
adoption at a meeting or to hold a meeting for such purpose.
SECTION 6.03. SPECIAL MEETING OF SHAREHOLDERS OF CAMCO. CAMCO
shall take all steps necessary to duly call, give notice of, convene and hold a
meeting of its shareholders for the purpose of voting upon this AGREEMENT as
required by applicable law. CAMCO shall use its reasonable efforts to hold such
meeting as soon as practicable following the date of this AGREEMENT. The Board
of Directors of CAMCO shall (i) recommend to its stockholders the adoption of
this AGREEMENT and the approval of the transactions contemplated hereby and any
other matters to be submitted to the shareholders in connection therewith and
(ii) use their reasonable efforts to obtain the necessary adoption by the
shareholders of this AGREEMENT, any amendments hereto, and the transactions
contemplated hereby.
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SECTION 6.04. AFFILIATES COMPLIANCE WITH THE 1933 ACT. (a)
Within 45 days after the date of this AGREEMENT, WHFC shall identify to CAMCO
all persons who WHFC reasonably believes to be "affiliates," as defined in
paragraphs (c) and (d) of Rule 145 under the 1933 ACT (hereinafter referred to
as the "AFFILIATES"). Thereafter and until the EFFECTIVE TIME, WHFC shall
identify to CAMCO each additional person whom it reasonably believes to have
thereafter become its AFFILIATE.
(b) WHFC shall use its best efforts to obtain from each person
who is identified as an AFFILIATE for delivery to CAMCO before the EFFECTIVE
DATE a written agreement in which such AFFILIATE confirms that the CAMCO shares
received by such AFFILIATE in the MERGER shall be transferable only in
accordance with Rule 145 of the 1933 ACT.
SECTION 6.05. EMPLOYEES. (a) All employees of the BANK on July
1, 1999 who are actively employed at the EFFECTIVE TIME shall, upon satisfactory
review of employment files and subject to CAMCO employee standards of
performance, continue as employees of the BANK at the EFFECTIVE TIME and, with
respect to employees who are not currently covered by a written employment or
severance agreement with the BANK, shall be employed as at will employees at the
same base compensation they are receiving from the BANK. Any employee who is
currently covered by a written employment or severance agreement will continue
his employment in accordance with the terms of such written agreement except as
provided in this AGREEMENT. Except as specifically provided in this AGREEMENT,
no employee of the BANK shall be entitled to be eligible for or participate in
any qualified or non-qualified employee benefit program or plan maintained by
CAMCO or its subsidiaries.
(b) Prior to the EFFECTIVE TIME and subject to CAMCO's
approval, CAMCO will authorize the BANK to enter into a new employment agreement
with Xxxxxxx X. Xxxxxxx effective at such time for a term of three years and
otherwise upon substantially identical terms and conditions (including
compensation) as are contained in the employment agreement of February 6, 1995
as amended on March 25, 1996, February 18, 1997 and June 22, 1998, except that:
(i) the transactions contemplated by this AGREEMENT will not be deemed a change
of control and the employee will waive all rights under the existing or new
contract with respect to this transaction as set forth in this AGREEMENT, and
will execute a written release of all claims pursuant to his existing employment
contract; and (ii) the provisions of the 1998 amendment related to the Westwood
Homestead Grantor Trust shall not be applicable and the Westwood Homestead
Grantor Trust shall be terminated with respect to said employment contract.
(c) Prior to the EFFECTIVE TIME, BANK will: (i) enter into an
employment agreement with Xxxxxx X. Xxxxxxx, effective as of the EFFECTIVE TIME
and upon substantially identical terms and conditions as the new employment
agreement with Xxxxxxx X. Xxxxxxx entered into pursuant to Section 6.05(b)
hereof (other than compensation), except that the term of such agreement shall
be one year and Xx. Xxxxxxx'x compensation from the BANK shall not be increased
without prior consent of CAMCO; and (ii) enter into a new severance agreement
with Xxxxxx X. Xxxxxxx effective upon the expiration of the employment agreement
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for a term of two years and otherwise upon substantially identical terms and
conditions as are contained in the severance agreement of September 27, 1996 as
amended June 22, 1998, provided that Paragraph 1(d) as amended shall be
eliminated in its entirety and no comparable provision shall be contained in the
new severance agreement. The obligations of CAMCO pursuant to this Section
6.05(c) will be subject to Xx. Xxxxxxx'x execution of a written release of all
claims pursuant to his existing severance agreement and the amendment or
termination of any applicable Grantor Trust to eliminate any funding obligation
associated with such severance agreement.
(d) Prior to the EFFECTIVE TIME, the BANK will enter into a
new three-year severance agreement effective at the EFFECTIVE TIME with Xxxx X.
Xxxxx upon substantially identical terms and conditions as are contained in the
severance agreement of September 27, 1996 as amended June 22, 1998, provided
that Paragraph 1(d) as amended shall be eliminated in its entirety and no
comparable provision shall be contained in the new severance agreement, and that
the new severance agreement will permit Mr. Essen to voluntarily terminate
employment for any reason during the twelve-month period after the EFFECTIVE
TIME and be paid, by the BANK, the maximum termination benefit provided under
Paragraph 1 of his existing agreement. The obligations of CAMCO pursuant to this
Section 6.05(d) will be subject to Mr. Essen's execution of a written release of
all claims pursuant to his existing severance agreement and the amendment or
termination of any applicable Grantor Trust to eliminate any funding obligation
associated with such severance agreement.
SECTION 6.06. EMPLOYEE BENEFITS. (a)(i) The health insurance
plan currently sponsored by the BANK for the benefits of its employees and
administered through the Ohio League of Financial Institutions will continue to
be the health insurance plan of the BANK, provided, CAMCO may in its discretion
in the future provide coverage under the health insurance plan maintained by
CAMCO for the benefit of the employees of CAMCO and its subsidiaries; provided,
that all waiting periods and pre-existing condition limitations shall be waived
and employees are given full credit for claims arising prior to the change in
health plans for purposes of deductibles, out-of-pocket maximums, benefit
maximums and all other similar limitations for the applicable plan year in which
any transition is made and provided, further, that such plan shall permit the
continued coverage of all individuals entitled to purchase health insurance
through the plan of the BANK. If such waiting periods, pre-existing condition
limitations and other provisions are not waived, CAMCO shall keep in place, so
long as legally possible, the health insurance plan currently maintained by the
BANK, provided that CAMCO may in its discretion keep the health insurance plan
maintained by the BANK in place, in lieu of providing coverage to BANK employees
under the health insurance plan maintained by CAMCO for employees of CAMCO and
its subsidiaries.
(ii) The BANK will allow no new additions to beneficiaries of
its supplemental medical retirement health insurance plan and the supplemental
medical retirement health insurance plan will be terminated or amended prior to
the EFFECTIVE TIME to allow only for the current one beneficiary to be covered.
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(b) WHFC and the BANK shall take all steps necessary to
terminate WHFC's 401(k) Plan as promptly as possible and prior to the EFFECTIVE
TIME, and to file as soon as possible, an Application for Determination with the
Internal Revenue Service (the "IRS") regarding tax qualification upon
termination. WHFC's Employee Stock Ownership Plan (the "ESOP") shall be
terminated and the ESOP's net assets shall be distributed as promptly as
possible. Subject to applicable law and regulation, commencing as promptly as
possible following both the termination of WHFC's 401(k) Plan and the final
distribution under the ESOP pursuant to 6.06(c) of this AGREEMENT, or such
earlier date as may be required under the CODE or ERISA, employees of the BANK
shall become participants in the CAMCO 401(k) Plan in accordance with the terms
and conditions of such Plan as then in effect, with prior service credit given
for their years of employment by the BANK for eligibility and vesting purposes.
Except as otherwise provided herein, after the EFFECTIVE TIME, BANK employees
shall be entitled to participate in all CAMCO employee benefit plans and
programs generally available to employees of CAMCO and its subsidiaries,
including, without limitation, all vacation and sick leave programs and the
Return on Equity Cash Bonus Plan. BANK employees shall be given full credit for
prior service for purposes of vesting, eligibility for participation and benefit
levels and all waiting periods shall be waived. CAMCO shall honor all accrued
vacation leave for employees of BANK following the EFFECTIVE TIME.
(c)(i) WHFC and the BANK are authorized to commence
termination of the ESOP and to file as soon as possible an Application for
Determination with the IRS regarding tax qualification upon termination. No
additional contribution shall be made to the ESOP by CAMCO, WHFC or the BANK
except as necessary to make the minimum required payment under the current
exempt loan (the "LOAN") between WHFC and the ESOP; provided, however, that all
such contribution shall be deductible by WHFC and the BANK under Section 404 of
the CODE and the allocations of such contribution shall otherwise be in
compliance with Section 415 of the CODE. All WHFC SHARES held by the Trustee of
the ESOP at the EFFECTIVE TIME shall be exchanged by the Trustee for the PER
SHARE MERGER CONSIDERATION in accordance with this AGREEMENT and the cash
proceeds paid by CAMCO to the ESOP with respect to the unallocated WHFC SHARES
owned by the ESOP shall be applied against the LOAN. To the extent that such
cash proceeds together with other cash owned by the ESOP are insufficient to
retire the LOAN, the Trustee for the ESOP shall dispose of shares held in the
suspense account of the ESOP for the purpose of retiring the LOAN. Any shares
and other assets remaining in the suspense account following repayment of the
LOAN in full including interest will be available for allocation and
distribution as promptly as possible to participants (as defined in the ESOP) in
accordance with the provisions of the ESOP and applicable law. It is the intent
of the parties that the ESOP be terminated and distributions made concurrently
with the CLOSING to the extent possible.
(ii) In the event that the IRS determines that the allocation
of assets remaining in the suspense account following repayment of the LOAN in
full is subject to the limits on annual additions pursuant to Section 415 of the
CODE, then CAMCO will make all reasonable efforts, to the extent permissible
under applicable provisions of the CODE and related Treasury Regulations to
continue the ESOP trust through the last day of the ESOP plan year following the
ESOP plan year during which the EFFECTIVE TIME occurs, solely for the benefit of
those
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individuals who are participants in the ESOP immediately before the EFFECTIVE
TIME, and to allocate such remaining assets to ESOP participants in accordance
with the terms of the ESOP to the full extent permissible under Section 415 of
the CODE between the EFFECTIVE TIME and the last day of the ESOP plan year
following the ESOP plan year during which the EFFECTIVE TIME occurs. In the
event that all assets held by the ESOP trust are allocated prior to the last day
of the ESOP plan year during which the EFFECTIVE TIME occurs, the ESOP trust
shall be immediately terminated and participants' ESOP accounts will be
distributed as soon as practicable thereafter.
(iii) The provisions in this paragraph 6.06(c) are expressly
subject to (x) WHFC and the BANK making all necessary amendments to the ESOP
which amendments have been approved by the IRS and are in effect at the
EFFECTIVE TIME; (y) such amendments include, without limitation, the amendment
of Section 17.3 of the ESOP to eliminate the provisions of such section added by
the 1997 amendment to the ESOP dated November 10, 1997 and to make all
provisions of the PLAN consistent with this AGREEMENT; and (z) all amendments
are satisfactory to CAMCO.
SECTION 6.07. BOARD OF DIRECTORS. (a) The present members of
the Board of Directors of the BANK will continue as directors of the BANK
following the EFFECTIVE TIME. The BANK's non-employee directors' fees and health
insurance benefits for current directors will be maintained at the same level as
fixed by the shareholders at the 1999 Annual Meeting of the BANK.
(b) The BANK will add two persons to its Board of Directors at
the EFFECTIVE TIME to be designated by CAMCO. If necessary, WHFC as sole
shareholder of the BANK will cause the Constitution of the BANK to be amended
prior to the EFFECTIVE TIME to provide for the additional directors. CAMCO shall
modify the resolution adopted at the November 24, 1998 Board meeting setting the
maximum number of directors of a subsidiary bank at seven to except out the BANK
from these limitations.
(c) CAMCO will add Xxxxxxx X. Xxxxxxx to its Board of
Directors at the EFFECTIVE TIME subject to compliance with Section 6.05(b). If
necessary CAMCO shall take all actions prior to the EFFECTIVE TIME to increase
the size of its Board of Directors from nine to ten. CAMCO agrees to re-nominate
Xx. Xxxxxxx for at least one additional three year term.
(d) Subject to the fiduciary duty of its Board of Directors,
CAMCO as sole shareholder of the BANK after the EFFECTIVE TIME will vote the
shares of the BANK for the re-election of the current members of the Board of
Directors (other than Xxxx X. Xxxxxxxxxxxx who is retiring) to three-year terms
at the next annual meeting of shareholders at which their terms expire.
(e) (i) Neither the directors to be selected by CAMCO nor any
other new directors of the BANK will be entitled to benefits under the Westwood
Homestead Savings Bank Directors Retirement Plan (the "PLAN"), as amended, dated
January 1, 1995, provided, that the PLAN shall be amended so that Quarterly
Accruals under the PLAN shall be determined based
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on actuarial calculations of amounts required to fund targeted benefits rather
than on quarterly financial expense determined under generally accepted
accounting principles; (ii) except as specifically provided in this Section
6.07(e) the PLAN shall be honored by CAMCO in accordance with the terms of said
PLAN; (iii) the PLAN and the applicable Trust Agreement (either in existence or
to be established) shall provide for and incorporate the provisions of this
Section 6.07(e). WHFC or the BANK shall obtain all necessary approvals or
consents required to be obtained to effect the provisions of this Section
6.07(e); (iv) prior to the EFFECTIVE TIME, the amount by which the PLAN is
underfunded will be actuarially determined by the parties using the payments
required by Article VIII. Payment will be made to the Trust provided for in the
PLAN in accordance with Article VIII in an amount not greater $204,541. No
further funds or other consideration of any type will be provided thereafter by
CAMCO, WHFC or the BANK. The BANK will provide to CAMCO written agreements of
all beneficiaries to this satisfaction of all obligations of CAMCO, WHFC and the
BANK under the PLAN or otherwise; and (v) the existing Trustee shall continue as
Trustee. No person who is an officer, director or employee of CAMCO shall become
a Trustee and at all times the selection of any replacement trustee shall be
done by individuals constituting the WHFC Board as of the date hereof.
SECTION 6.08. MANAGEMENT RECOGNITION PLAN. Except as
specifically provided in this Section 6.08, the existing Management Recognition
Plan (the "PLAN") and grants of award as listed in Section 3.29 of the WHFC
DISCLOSURE SCHEDULE in an amount not to exceed 49,226 WHFC SHARES shall be
honored by CAMCO in accordance with the terms of said PLAN and grants of award
and applicable law and regulations. Prior to the CLOSING, the PLAN shall be
amended to delete Section 7.05 as added June 22, 1998 and, if lawful, to add a
new Section 7.05 to provide that a participant may elect, in the event of a
change of control, (i) to receive distribution as provided in 7.01(b) of the
PLAN or (ii) to receive distribution as provided in Section 7.01(a) of the PLAN.
The Westwood Homestead Financial Corporation "Grantor Trust Agreement" of June
22, 1998 shall be terminated with respect to the PLAN and shall have no
application to the PLAN and the Trust of March 10, 1997. If necessary the Trust
of March 10, 1997 shall be re-established. No awards granted subsequent to June
30, 1998 will be valid in any respect except for awards to Xxxxxx X. Xxxxxxx and
Xxxx X. Xxxxx in an aggregate total of 5,000 WHFC SHARES and included in the
above-mentioned 49,226 WHFC SHARES and new directors of the BANK will receive no
awards. Prior to the EFFECTIVE TIME, WHFC shall direct the Management
Recognition Plan Committee and/or the Trustee, if appropriate, to return the
33,060 unawarded WHFC SHARES to WHFC and the Committee and/or the Trustee shall
promptly effect such directive. At the EFFECTIVE TIME the persons composing the
Trustee of the PLAN shall resign and persons designated by CAMCO shall become
the Trustee. At the EFFECTIVE TIME, the Management Recognition Plan Committee
shall resign and CAMCO shall appoint a new committee.
SECTION 6.09. ACCESS. Until the EFFECTIVE TIME, WHFC and the
BANK shall afford to CAMCO, and CAMCO shall afford to WHFC and the BANK, and to
their respective officers and representatives (including, without limitation,
counsel, financial advisers and independent accountants), reasonable access to
their properties, personnel, books, records and affairs. Such access shall
include, but shall not be limited to, (i) permitting verification, by audit or
otherwise, of any representation or warranty made hereunder; (ii) authorizing
release of
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any information (including the work papers of such independent auditors and
financial consultants); (iii) consistent with applicable regulations or
procedures, furnishing regular and special examination reports since the date of
this AGREEMENT; and (iv) delivering copies of all documents or reports or
correspondence filed and any correspondence with any federal regulatory or
supervisory agency from the date of this AGREEMENT. Each party shall furnish the
other party with such additional financial and operating data and other
information as to its businesses and properties as may be reasonably requested.
SECTION 6.10. CONFIDENTIALITY. The parties acknowledge the
confidential and proprietary nature of the information as hereinafter described
which has heretofore been exchanged and which will be received from each other
hereunder (hereinafter referred to as the "INFORMATION") and agree to hold and
keep the same confidential. Such INFORMATION will include any and all financial,
technical, commercial, marketing, customer or other information concerning the
business, operations and affairs of a party that may be provided to the other,
irrespective of the form of the communications, by such party's employees or
agents. Such INFORMATION shall not include information that is or becomes
generally available to the public other than as a result of a disclosure by a
party or its representatives in violation of this AGREEMENT, or INFORMATION
which is required to be furnished or used in connection with legal proceedings.
The parties agree that the INFORMATION will be used solely for the purposes
contemplated by this AGREEMENT and that such INFORMATION will not be disclosed
to any person other than employees and agents of a party who are directly
involved in evaluating the transaction. The INFORMATION shall not be used in any
way detrimental to a party, including use directly or indirectly in the conduct
of the other party's business or enterprise in which such party may have an
interest, now or in the future, and whether or not now in competition with such
other party. Upon the written request of the disclosing party, upon termination
of this AGREEMENT, the other parties will promptly return or destroy INFORMATION
in their possession and certify to the disclosing party that the party has done
so.
SECTION 6.11. PRESS RELEASES. CAMCO and WHFC shall consult
with each other before issuing any press release or otherwise making any public
statements with respect to the MERGER and shall not issue any such press release
or make any such public statement without obtaining the prior consent of the
other party, except as may be required by law or by obligations pursuant to any
listing agreement with any national securities association.
SECTION 6.12. COSTS AND EXPENSES; TERMINATION FEE. Whether or
not the MERGER is consummated, all costs and expenses incurred in connection
with this AGREEMENT, the JOINT PROXY STATEMENT, the REGISTRATION STATEMENT and
the transactions contemplated hereby shall be paid by the party incurring such
costs and expenses. WHFC and the BANK hereby agree that if this AGREEMENT is
terminated as a result of a willful breach by WHFC or the BANK, then WHFC or the
BANK shall promptly (and in any event within ten (10) business days after such
termination) pay all reasonable EXPENSES of CAMCO in an amount not to exceed
$250,000. CAMCO hereby agrees that if this AGREEMENT is terminated as a result
of a willful breach by CAMCO, then CAMCO shall promptly (and in any event within
ten (10) business days after such termination) pay all reasonable EXPENSES of
the WHFC and the BANK in an amount not to exceed $250,000. For
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purposes of this Section 6.12, the "EXPENSES" of a party shall include all
reasonable out-of-pocket expenses of that party (including all fees and expenses
of counsel, accountants, financial advisors, experts and consultants to that
party) incurred by it or on its behalf in connection with the consummation of
the transactions contemplated by this AGREEMENT.
SECTION 6.13. REASONABLE EFFORTS. Subject to the terms and
conditions herein provided, each of the parties hereto agrees to use all
reasonable efforts to take, or cause to be taken, all action, and to do or cause
to be done all things necessary, proper or advisable under applicable laws and
regulations to consummate and make effective the transactions contemplated by
this AGREEMENT.
SECTION 6.14. NOTIFICATION OF EVENTS. At all times from the
date of this AGREEMENT until the EFFECTIVE TIME, each party shall promptly
notify the other in writing of any materially adverse business conditions
threatening its normal business operations or of the occurrence of any event or
the failure of any event to occur which might reasonably be expected to result
in a breach of or a failure to comply with any representation, warranty,
covenant, condition or agreement contained in this AGREEMENT or of the
commencement of any action, suit, proceeding or investigation against it.
SECTION 6.15. VOTING AGREEMENT. Concurrently with the
execution and delivery of this AGREEMENT, or not later than ten days thereafter,
and as a condition and material inducement to CAMCO's willingness to enter into
this AGREEMENT, each of the directors and executive officers of WHFC and the
BANK shall enter into WHFC Shareholder Agreement in the form attached hereto as
Exhibit B.
SECTION 6.16. STOCK OPTION AGREEMENT. Concurrently with the
execution and delivery of this AGREEMENT and as a condition and material
inducement to CAMCO's willingness to enter into this AGREEMENT, WHFC is entering
into the WHFC STOCK OPTION AGREEMENT.
SECTION 6.17. INDEMNIFICATION. Nothing in this AGREEMENT is
intended to affect any rights to indemnification to which any officer or
director of WHFC or the BANK may be entitled pursuant to the Articles of
Incorporation, Constitution or Bylaws of WHFC or the BANK in effect prior to the
EFFECTIVE TIME. From the EFFECTIVE TIME and continuing for a period of three
years thereafter, the current and former officers and directors of WHFC and the
BANK shall be indemnified by CAMCO from their acts and omissions occurring prior
to the EFFECTIVE TIME to the maximum extent permitted by the Certificate of
Incorporation and Bylaws of CAMCO but subject to any applicable limitations of
Delaware law. From the EFFECTIVE TIME and continuing for a period of three years
thereafter, the current and former officers and directors of the BANK shall be
indemnified by the BANK for their acts and omissions occurring prior to the
EFFECTIVE TIME to the extent permitted by Ohio law. As a condition to receiving
such indemnification, the party claiming indemnification shall assign to CAMCO,
by separate writing, all right, title and interest in and to the proceeds of the
claiming party's applicable insurance coverage, if any, including insurance
maintained or provided by CAMCO or WHFC or the BANK to the extent of such
indemnity. No person shall be entitled to
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such indemnification with respect to a claim (i) if such person fails to
cooperate in the defense and investigation of such claim as to which
indemnification may be made, (ii) made by such person against CAMCO, its
subsidiaries, WHFC or the BANK arising out of or in connection with this
AGREEMENT, the transactions contemplated hereby or the conduct of the business
of CAMCO, its subsidiaries, WHFC or the BANK, or (iii) if such person fails to
deliver such notices as may be required under any applicable directors and
officers liability insurance policy to preserve any possible claims of which the
claiming party is aware, to the extent such failure results in the denial of
payment under such policy.
Subject to WHFC and the BANK providing all requested
information and representations to CAMCO's directors' and officers' liability
insurance carrier, CAMCO shall add a rider, to be effective at the EFFECTIVE
TIME, to CAMCO's existing directors' and officers' liability insurance policy
covering the acts and omissions of the officers and directors of WHFC and the
BANK occurring prior to the EFFECTIVE TIME and to continue such rider for a
period of three years.
SECTION 6.18. CONDUCT OF CAMCO BUSINESS. From the date of this
AGREEMENT until the EFFECTIVE TIME, CAMCO shall:
(a) Use all reasonable efforts to preserve intact its business
organization and assets and maintain its rights, franchises and existing
relationships with customer, suppliers, employees and business associates;
(b) Notify WHFC in writing within five business days of (i)
the existence of any adverse business conditions threatening the normal business
operations of CAMCO, (ii) the occurrence of any event or the failure of any
event to occur which might result in a breach of or a failure to comply with any
representations, warranty, covenant, condition or agreement by or pertaining to
CAMCO contained in this AGREEMENT, (iii) the commencement of any material
action, suit, proceeding, or investigation against CAMCO and (iv) the tender of
any offer to acquire CAMCO by merger or otherwise;
(c) Take no action that would adversely affect the ability of
CAMCO to obtain any necessary approvals of governmental authorities required for
the transactions contemplated hereby without the imposition of a burdensome
restriction or condition, or adversely affect the ability of CAMCO to perform
its covenants and agreements under this AGREEMENT;
(d) Take all action necessary to cause to be listed on The
Nasdaq Stock Market the CAMCO SHARES to be issued pursuant to this AGREEMENT;
and
(e) Use all reasonable efforts to obtain any consent,
authorization or approval of, or waiver or exemption by, any governmental entity
or third party required to be obtained or made by it in connection with the
Merger.
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SECTION 6.19. ACTIONS BY WHFC OR THE BANK. (a) If necessary, a
notice or rebuttal of presumption, as appropriate, shall be filed by the ESOP
with the Federal Reserve Board pursuant to 12 USC 1817(j) and the notice shall
be effective or the Federal Reserve Board shall approve the rebuttal and find no
control of WHFC prior to the CLOSING.
(b) WHFC or the BANK shall obtain, prior to closing, an owners
title insurance policy with respect to each of the real properties listed in
Section 3.11(c) of the WHFC DISCLOSURE SCHEDULE showing title in WHFC or the
BANK and as set forth in Section 3.11(c) and in an appropriate amount of
coverage.
(c) The WHFC STOCK OPTION AGREEMENT will be executed on a date
subsequent to the date hereof.
ARTICLE SEVEN
CLOSING MATTERS
SECTION 7.01. CONDITIONS TO OBLIGATIONS OF CAMCO, WHFC AND THE
BANK. Notwithstanding any other provision of this AGREEMENT, the obligations of
CAMCO, WHFC and the BANK to effect the MERGER shall be subject to the
fulfillment of each of the following conditions:
(a) This AGREEMENT shall have been validly adopted by the
affirmative vote of the holders of at least the
number of outstanding WHFC SHARES required under
Indiana law and WHFC's Articles of Incorporation and
Bylaws;
(b) The AGREEMENT shall have been validly adopted by the
affirmative vote of the holders of at least the
number of outstanding CAMCO SHARES required under
Delaware law and CAMCO's Certificate of Incorporation
and Bylaws;
(c) All permits, approvals, consents, authorizations,
exemptions or waivers of any federal or state
governmental body or agency necessary or appropriate
for consummation of the MERGER shall have been
obtained and all notices required to be filed shall
have been filed and any objection or waiting period
with respect to such notice shall have expired
including the 10-L Election by the BANK and the
de-registering of WHFC as a Bank Holding Company.
(d) All waivers, consents and approval of every person,
in addition to those required under subsections (a),
(b) and (c) of this Section 7.01, necessary or
appropriate for the consummation of the MERGER shall
have been obtained;
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(e) There shall not be in effect any federal or state
law, rule or regulation or any order or decision of a
court of competent jurisdiction which prevents or
materially delays the consummation of the MERGER;
(f) CAMCO and WHFC shall have received an opinion of
Vorys, Xxxxx, Xxxxxxx and Xxxxx LLP (which opinion
shall not have been withdrawn at or prior to the
CLOSING) to the effect that the MERGER, when
consummated in accordance with the terms hereof, will
constitute a reorganization within the meaning of
Section 368(a)(1)(A) of the CODE and that no gain or
loss will be recognized by WHFC shareholders to the
extent they receive CAMCO SHARES in exchange for WHFC
SHARES; and
(g) The REGISTRATION STATEMENT (including any
post-effective amendment thereto) shall have been
declared effective by the SEC, and no proceeding
shall be pending or, to the knowledge of CAMCO or
WHFC, threatened by the SEC to suspend the
effectiveness of the REGISTRATION STATEMENT.
SECTION 7.02. CONDITIONS TO OBLIGATIONS OF CAMCO. In addition
to the conditions contained in Section 7.01 of this AGREEMENT, the obligations
of CAMCO to effect the MERGER shall also be subject to the fulfillment of each
of the following conditions unless fulfillment is waived by CAMCO in writing:
(a) The representations and warranties of WHFC and the
BANK contained in Article Three of this AGREEMENT
shall be true in all material respects at and as of
the date hereof and at and as of the day of the
CLOSING as if made at and as of such time, except
where such representation or warranty is made as of a
specific date;
(b) WHFC and the BANK shall have duly performed and
complied in all material respects with all
agreements, covenants and conditions required by this
AGREEMENT to be performed or complied with by WHFC
and the BANK before or on the day of the CLOSING;
(c) There shall not have been a material adverse change
in the financial condition, assets, liabilities,
obligations, properties, business or prospects of
WHFC or the BANK after the date of this AGREEMENT,
except changes resulting from action taken by WHFC or
the BANK pursuant to Section 5.03 of this AGREEMENT,
changes resulting from or attributable to expenses
incurred in connection with the transactions
contemplated by this AGREEMENT and changes resulting
from or attributable to (i) changes in laws and
regulations particularly affecting financial
institutions and their holding companies; (ii)
changes in GAAP or regulatory accounting principles
generally applicable to financial institutions and
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their holding companies; and (iii) changes in
economic conditions applicable to depository
institutions generally or in general levels of
interest rates.
(d) WHFC and the BANK shall each have delivered to CAMCO
a certificate dated the day of the CLOSING and signed
by the President and the chief financial officer of
each of WHFC and the BANK to the effect set forth in
subsections (a), (b) and (c) of this Section 7.02;
(e) The contracts, amendments, agreements, consents and
actions required by Section 6.05(b), (c) and (d),
Section 6.07(e) and Section 6.08 shall have occurred
to the reasonable satisfaction of CAMCO;
(f) There shall not be any action or proceeding commenced
by or before any court or governmental agency or
authority in the United States, that challenges or
seeks to prevent the consummation of the MERGER or
seeks to impose material limitations on the ability
of CAMCO to exercise full rights of ownership of the
assets or business of WHFC and the BANK;
(g) There shall not have been proposed, nor shall there
be in effect, any federal or state law, rule,
regulation, order or statement of policy that, in the
reasonable judgment of CAMCO, would: (i) prevent or
materially delay the consummation of the MERGER or
materially interfere with the reasonable operation of
the business of WHFC or the BANK (ii) materially
adversely affect the ability of CAMCO to enjoy the
economic or other benefits of the MERGER or (iii)
impose any material adverse condition, limitation or
requirement on CAMCO in connection with the MERGER;
(h) WHFC and the BANK shall not have incurred any damage,
destruction or similar loss, not covered by
insurance, materially affecting its businesses or
properties;
(i) The shareholders' equity of WHFC on the day of the
CLOSING and as calculated in accordance with GAAP
shall not be less than $22,778,105, without giving
effect to (i) reserves, accruals and charges taken or
established by WHFC or the BANK at the request of
CAMCO in accordance with Section 5.03 of this
AGREEMENT, (ii) expenses incurred in connection with
the transactions contemplated by this AGREEMENT; and
(iii) realized or unrealized losses on securities
classified as available for sale in the WHFC AUDITED
STATEMENTS;
(j) WHFC and the BANK shall have complied with Section
5.03 hereof to the reasonable satisfaction of CAMCO;
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(k) CAMCO shall have received the affiliate letters
required by Section 6.04 of this AGREEMENT or WHFC
shall have used its reasonable best efforts to have
obtained same;
(l) Section 6.19(a), 6.19(b)and 6.19(c) shall have been
complied with to the reasonable satisfaction of
CAMCO; and
(m) WHFC shall have obtained a determination letter from
the IRS satisfactory to CAMCO that the ESOP is
qualified upon its termination and that the PER SHARE
MERGER CONSIDERATION received by the ESOP pursuant to
this AGREEMENT and the MERGER (including, if
necessary, the proceeds of the sale of CAMCO SHARES)
together with all other assets of the ESOP may be
immediately allocated to the participants' accounts
as of the date of termination of the ESOP and the
amendments to the ESOP required by Section 6.06(c)
have been approved by the IRS, and are effective.
SECTION 7.03. CONDITIONS TO OBLIGATIONS OF WHFC AND THE BANK.
In addition to the conditions contained in Section 7.01 of this AGREEMENT, the
obligations of WHFC and the BANK to effect the MERGER shall also be subject to
the fulfillment of each of the following conditions:
(a) The representations and warranties of CAMCO contained
in Article Four of this AGREEMENT shall be true in
all material respects at and as of the date hereof
and at and as of the date of the CLOSING as if made
at and as of such time;
(b) CAMCO shall have duly performed and complied in all
material respects with all agreements, covenants and
conditions required by this AGREEMENT to be performed
or complied with by it before or at the CLOSING;
(c) There shall not have been a material adverse change
in the financial condition, assets, liabilities,
obligations, properties, business or prospects of
CAMCO after the date of this AGREEMENT;
(d) CAMCO shall have delivered to WHFC a certificate
dated the day of the CLOSING and signed by the
President and the Chief Financial Officer of CAMCO to
the effect set forth in subsections (a), (b) and (c)
of this Section 7.03;
(e) The CAMCO SHARES to be issued to holders of WHFC
SHARES shall have been approved for listing on
NASDAQ, subject to official notice of issuance;
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(f) WHFC shall have received a written opinion of XXXX,
dated as of within three (3) days of the JOINT PROXY
STATEMENT, to the effect that the PER SHARE MERGER
CONSIDERATION to be received by the holders of WHFC
SHARES is fair from a financial point of view; and
(g) WHFC shall have received reasonable evidence that the
cash needed for the fractional shares and the cash
portion of the aggregate PER SHARE MERGER
CONSIDERATION is available. Such evidence includes a
confirmation by a bank of an available line of credit
for CAMCO's use in the appropriate amount.
ARTICLE EIGHT
TERMINATION
SECTION 8.01. TERMINATION. This AGREEMENT may be terminated at
any time prior to the date of the CLOSING, whether before or after approval by
the shareholders of CAMCO and WHFC:
(a) By mutual consent of the Boards of Directors of WHFC
and CAMCO; or
(b) By the Board of Directors of WHFC or CAMCO if:
(i) The MERGER shall not have been consummated
on or before June 30, 2000; or
(ii) Any event occurs which, in the reasonable
opinion of either Board, would preclude
satisfaction of any of the conditions set
forth in Section 7.01 of this AGREEMENT; or
(c) By the Board of Directors of CAMCO if any event
occurs which, in the reasonable opinion of such
Board, would preclude compliance with any of the
conditions set forth in Section 7.02 of this
AGREEMENT; or
(d) By the Board of Directors of WHFC if any event occurs
which, in the reasonable opinion of such Board, would
preclude compliance with any of the conditions set
forth in Section 7.03 of this AGREEMENT.
SECTION 8.02. WRITTEN NOTICE OF TERMINATION. In order to
terminate this AGREEMENT pursuant to Section 8.01(a), (b), (c) and (d), the
party so acting shall give written notice of such termination to the other
party. This AGREEMENT shall terminate on the date such notice is given.
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SECTION 8.03. EFFECT OF TERMINATION. In the event of the
termination of this AGREEMENT, the provisions of this AGREEMENT shall become
void and have no effect; provided, however, that (a) the provisions set forth in
Sections 5.02, 6.10, 6.11 and 6.12 of this AGREEMENT and the WHFC STOCK OPTION
AGREEMENT shall survive such termination and shall remain in full force and
effect and (b) a termination of this AGREEMENT shall not affect the liability of
any party for an uncured breach of any term or condition of this AGREEMENT.
SECTION 8.04. AMENDMENT. This AGREEMENT may be amended at any
time before or after approval of this AGREEMENT by the shareholders of WHFC and
CAMCO, but after such approval no amendment shall be made which materially and
adversely affects the rights of such shareholders without the further approval
of such shareholders. This AGREEMENT may not be amended except by an instrument
in writing signed on behalf of each of the parties hereto.
SECTION 8.05. WAIVER. Any term or provision of this AGREEMENT
(other than the requirement for shareholder approval) may be waived in writing
at any time by the party which is, or whose shareholders are, entitled to the
benefits thereof.
ARTICLE NINE
MISCELLANEOUS
SECTION 9.01. NOTICES. All notices and other communications
hereunder shall be in writing and shall be deemed given if delivered personally
or mailed by registered or certified mail (return receipt requested) to the
parties at the following addresses (or at such other address for a party as
shall be specified by like notice):
If addressed to CAMCO:
Xxxxx X. Xxxxxxxx
President, Chief Executive Officer and Chairman of the Board
Camco Financial Corporation
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
with a copy to:
Xxxxx X. Xxxxxxxx
or
Xxxxx Xxxxxxxx Xxxxx
Vorys, Xxxxx, Xxxxxxx and Xxxxx LLP
000 Xxxx Xxxxxx Xxxxxx
Xxxxxx Xxx, Xxxxx 0000
Xxxxxxxxxx, Xxxx 00000
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If addressed to WHFC or the BANK:
Xxxxxxx X. Xxxxxxx
President and Chief Executive Officer
Westwood Homestead Financial Corporation
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
with a copy to:
Xxxx X. Xxxxxxxxx
Housley Kantarian & Xxxxxxxxx, P.C.
0000 00xx Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx, X.X. 00000
SECTION 9.02. ENTIRE AGREEMENT. This AGREEMENT (including the
exhibits, documents and instruments referred to herein or therein) (a)
constitutes the entire agreement of the parties and supersedes all other prior
agreements and understandings, including the Confidentiality Agreement of June
28, 1999, both written and oral, among the parties, or any of them, with respect
to the subject matter hereof; (b) is not intended to and shall not confer any
rights or remedies hereunder upon any person other than CAMCO, WHFC and the
BANK; (c) shall not be assigned by operation of law or otherwise; and (d) shall
be governed in all respects, including validity, interpretation and effect, by
the laws of the State of Delaware, except to the extent that Indiana, Ohio or
federal law may be applicable.
SECTION 9.03. EXECUTION IN COUNTERPARTS. This AGREEMENT may be
executed in two or more counterparts which together shall constitute a single
AGREEMENT.
SECTION 9.04. HEADINGS. The headings of articles and sections
herein are for convenience of reference only, do not constitute a part of this
AGREEMENT and shall not be deemed to limit or affect any of the provisions
hereof.
SECTION 9.05. NONSURVIVAL OF REPRESENTATIONS AND WARRANTIES.
No representation or warranty shall survive the EFFECTIVE TIME.
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IN WITNESS WHEREOF, CAMCO, WHFC and the BANK have caused this
AGREEMENT to be signed by their respective duly authorized officers on the date
first above written.
ATTEST: CAMCO FINANCIAL CORPORATION
/s/ Xxxxxxx X. Xxxx By: /s/ Xxxxx X. Xxxxxxxx
------------------------ ---------------------------------------
Xxxxxxx X. Xxxx Xxxxx X. Xxxxxxxx
Secretary President, Chief Executive Officer and
Chairman of the Board
ATTEST: WESTWOOD HOMESTEAD FINANCIAL CORPORATION
/s/ Xxxx Xxx Xxxxxx By: /s/ Xxxxxxx X. Xxxxxxx
------------------------ ---------------------------------------
Xxxx Xxx Xxxxxx Xxxxxxx X. Xxxxxxx
Secretary President and Chief Executive Officer
ATTEST: WESTWOOD HOMESTEAD SAVINGS BANK
/s/ Xxxx Xxx Xxxxxx By: /s/ Xxxxxxx X. Xxxxxxx
------------------------ ---------------------------------------
Xxxx Xxx Xxxxxx Xxxxxxx X. Xxxxxxx
Secretary President and Chief Executive Officer
ACKNOWLEDGMENT
STATE OF OHIO )
) SS:
COUNTY OF GUERNSEY )
BE IT REMEMBERED that on this 6th day of August, 1999,
personally came before me, a Notary Public in and for the State and County
aforesaid, Xxxxx X. Xxxxxxxx, President of Camco Financial Corporation, and duly
executed the Agreement of Merger and Plan of Reorganization before me and
acknowledged the same to be his act and deed and the act and deed of said
corporation and that the facts therein are true.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this
6th day of August, 1999.
/s/ Xxxxxx X. Xxxxxxxxx, Xx., Attorney-at-Law
---------------------------------------------
Notary Public
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STATE OF OHIO )
) SS:
COUNTY OF XXXXXXXX )
BE IT REMEMBERED that on this 6th day of August, 1999,
personally came before me, a Notary Public in and for the State and County
aforesaid, Xxxxxxx X. Xxxxxxx, President of Westwood Homestead Financial
Corporation, and duly executed the Agreement of Merger and Plan of
Reorganization before me and acknowledged the same to be his act and deed and
the act and deed of said corporation and that the facts therein are true.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this
6th day of August, 1999.
/s/ Xxxx X. Xxxxxx
---------------------------------------------
Notary Public
STATE OF OHIO )
) SS:
COUNTY OF XXXXXXXX )
BE IT REMEMBERED that on this 6th day of August, 1999,
personally came before me, a Notary Public in and for the State and County
aforesaid, Xxxxxxx X. Xxxxxxx, President of Westwood Homestead Savings Bank, and
duly executed the Agreement of Merger and Plan of Reorganization before me and
acknowledged the same to be his act and deed and the act and deed of said
corporation and that the facts therein are true.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this
6th day of August, 1999.
/s/ Xxxx X. Xxxxxx
---------------------------------------------
Notary Public
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