________________________
STOCK PURCHASE AGREEMENT
________________________
dated as of the 24th day of May, 1996
by and between
FIRST INTERSTATE BANCSYSTEM OF MONTANA, INC.
AND
XXXXX FARGO & COMPANY
for
the outstanding capital stock of
FIRST INTERSTATE BANK OF MONTANA, N.A.
and
FIRST INTERSTATE BANK OF WYOMING, N.A.
TABLE OF CONTENTS
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
A. BUYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
B. SELLER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
X. XXXXX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
D. SALE AND PURCHASE . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
E. APPROVALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE I - Sale and Purchase of Shares. . . . . . . . . . . . . . . . . . . 2
1.1 SALE AND PURCHASE OF SHARES. . . . . . . . . . . . . . . . . . . . 2
1.2 PURCHASE PRICE . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.3 EFFECTIVE TIME . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.4 CLOSING. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE II - Representations and Warranties. . . . . . . . . . . . . . . . . 4
2.1 REPRESENTATIONS AND WARRANTIES OF SELLER . . . . . . . . . . . . . 4
2.2 REPRESENTATIONS AND WARRANTIES OF BUYER. . . . . . . . . . . . . . 14
2.3 RIGHT TO CURE. . . . . . . . . . . . . . . . . . . . . . . . . . . .16
2.4 EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . 17
2.5 NO OTHER REPRESENTATIONS OR WARRANTIES . . . . . . . . . . . . . . 17
ARTICLE III - Covenants. . . . . . . . . . . . . . . . . . . . . . . . . . . 18
3.1 CONDUCT OF BUSINESS PENDING THE EFFECTIVE TIME . . . . . . . . . . 18
3.2 ACCESS TO INFORMATION. . . . . . . . . . . . . . . . . . . . . . . 20
3.3 REASONABLE EFFORTS . . . . . . . . . . . . . . . . . . . . . . . . 21
3.4 NOTICE OF CERTAIN MATTERS. . . . . . . . . . . . . . . . . . . . . 21
3.5 NO SOLICITATION. . . . . . . . . . . . . . . . . . . . . . . . . . 22
3.6 USE OF BANK INFORMATION. . . . . . . . . . . . . . . . . . . . . . .22
3.7 PUBLICITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
3.8 BENEFIT PLANS. . . . . . . . . . . . . . . . . . . . . . . . . . . 22
3.9 TAX MATTERS. . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
3.10 RIGHT TO CURE. . . . . . . . . . . . . . . . . . . . . . . . . . . .26
ARTICLE IV - Conditions. . . . . . . . . . . . . . . . . . . . . . . . . . . 26
4.1 CONDITIONS TO EACH PARTY'S OBLIGATION TO EFFECT THE SALE . . . . . 26
4.2 CONDITIONS TO OBLIGATION OF SELLER . . . . . . . . . . . . . . . . 27
4.3 CONDITIONS TO OBLIGATION OF BUYER. . . . . . . . . . . . . . . . . 28
ARTICLE V - Termination, Amendment and Waiver. . . . . . . . . . . . . . . . 29
5.1 TERMINATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
5.2 EFFECT OF TERMINATION. . . . . . . . . . . . . . . . . . . . . . . 29
5.3 WAIVER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
ARTICLE VI - Franchise Agreements and Name . . . . . . . . . . . . . . . . . 30
6.1 CONTINUED USE OF FIRST INTERSTATE NAME, LOGO AND TRADEMARK . . . . 30
6.2 MUTUAL RELEASE OF ALL CLAIMS . . . . . . . . . . . . . . . . . . . 30
6.3 SEPARATE AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . 30
6.4 NON-COMPETITION. . . . . . . . . . . . . . . . . . . . . . . . . . 30
6.5 RESOLUTIONS OF CERTAIN RELATIONSHIPS . . . . . . . . . . . . . . . 31
ARTICLE VII - Post-Effective Time Provisions . . . . . . . . . . . . . . . . 32
7.1 INDEMNIFICATION. . . . . . . . . . . . . . . . . . . . . . . . . . 32
7.2 LIMIT ON INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . 32
ii
7.3 NOTICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
7.4 SETTLEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
7.5 CONTROL DISBURSEMENT ACCOUNTS. . . . . . . . . . . . . . . . . . . .32
7.6 DATA PROCESSING SERVICES . . . . . . . . . . . . . . . . . . . . . .33
7.7 TRANSFER OF BANK BOOKS, RECORDS AND INFORMATION. . . . . . . . . . .33
ARTICLE VIII - Transferred Employees . . . . . . . . . . . . . . . . . . . . .33
8.1 TRANSFERRED EMPLOYEES. . . . . . . . . . . . . . . . . . . . . . . .33
ARTICLE IX - General Provisions. . . . . . . . . . . . . . . . . . . . . . . 36
9.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . 36
9.2 INTERPRETATION OF CERTAIN TERMS. . . . . . . . . . . . . . . . . . 36
9.3 EXPENSES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
9.4 NOTICES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
9.5 HEADINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
9.6 SEVERABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
9.7 ENTIRE AGREEMENT; INTERPRETATION . . . . . . . . . . . . . . . . . 38
9.8 ASSIGNMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
9.9 NO THIRD-PARTY BENEFICIARIES . . . . . . . . . . . . . . . . . . . 38
9.10 AMENDMENT: WAIVER. . . . . . . . . . . . . . . . . . . . . . . . . 38
9.11 GOVERNING LAW. . . . . . . . . . . . . . . . . . . . . . . . . . . 38
9.12 COUNTERPARTS . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
9.13 TIME . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
iii
INDEX OF DEFINED TERMS
Defined Term Section
------------ -------
"Asset Classification" . . . . . . . . . . . . . . . . . . . . . . . . . 2.1(i)
"Bank Common Stock". . . . . . . . . . . . . . . . . . . . . . . . . . Recital C
"Bank Property" . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1(r)(ii)
"Banks" . . . . . . . . . . . . . . . . . . . . . . . . . . . Recital C; 9.2(a)
"BHC Act" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Recital A
"Book Value of Shareholder's Equity" . . . . . . . . . . . . . . . . . 1.2(b)(i)
"Business" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1(r)(i)
"Buyer". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.2(c)
"California State Section 338(h)(10) Election" . . . . . . . . . . . . 3.9(b)(i)
"Call Reports" . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1(h)(ii)
"Closing" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.4(a)
"Code" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1(q)(ii)
"Compensation Plans" . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1(q)
"Confidentiality Agreement". . . . . . . . . . . . . . . . . . . . . . . .3.2(b)
"Contracts" . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1(g)(ii)
"Control Disbursement Accounts". . . . . . . . . . . . . . . . . . . . . . . 7.5
"Customer Information" . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.6
"Dividends". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2(c)
"Effective Time" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.3
iv
"Employees" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1(q)(i)
"Encumbrances" . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1(d)(ii)
"Environmental Law" . . . . . . . . . . . . . . . . . . . . . . . . . 2.1(r)(i)
"ERISA" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1(q)(i)
"ERISA Affiliate" . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1(q)(i)
"Executive Officer". . . . . . . . . . . . . . . . . . . . . . . . . . . 9.2(d)
"Fair Lending Laws" . . . . . . . . . . . . . . . . . . . . . . . . . 2.1(l)(i)
"FDI Act" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2.1(b)
"FDIC" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1(b)
"Fed". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1(a)(iii)
"Fed Application". . . . . . . . . . . . . . . . . . . . . . . . . . 4.1(a)(ii)
"Final Settlement Payment" . . . . . . . . . . . . . . . . . . . . . .3.9(e)(ii)
"Financing". . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1(a)(i)
"Franchise Agreement" . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2
"FRB Approval" . . . . . . . . . . . . . . . . . . . . . . . . . . . . Recital E
"Governmental Entities". . . . . . . . . . . . . . . . . . . . . . . . . 2.1(f)
"Hazardous Substances" . . . . . . . . . . . . . . . . . . . . . . . . 2.1(r)(i)
"Insurance Policies" . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1(o)
"Intercompany Agreements". . . . . . . . . . . . . . . . . . . . . . 2.1(s)(iii)
"License Agreement". . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3
"Losses" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1
"Material Adverse Effect" . . . . . . . . . . . . . . . . . . . . . . . .2.4(b)
"OCC". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2(c)
v
"Person" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2.1(c)
"Plans" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1(q)(i)
"Post-Closing Tax Period". . . . . . . . . . . . . . . . . . . . . . . 3.9(c)(i)
"Pre-Closing Tax Period" . . . . . . . . . . . . . . . . . . . . . . 3.9(c)(ii)
"Purchase Price" . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1.2(a)
"Representatives" . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2(a)
"Sale" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.1
"Section 338(h)(10) Election". . . . . . . . . . . . . . . . . . . . . . 3.9(a)
"Securities Act" . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2(e)
"Seller" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.2(b)
"Service Contracts'. . . . . . . . . . . . . . . . . . . . . . . . . 2.1(s)(iv)
"Shares" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Recital D
"State or Other Pre-Closing Tax Period". . . . . . . . . . . . . . . . 3.9(c)(i)
"Tax" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1(n)(i)
"Tax Sharing Agreement". . . . . . . . . . . . . . . . . . . . . . . . . 3.9(g)
"Termination Notice" . . . . . . . . . . . . . . . . . . . . . . . . . . 6.4(a)
"Transferred Employees". . . . . . . . . . . . . . . . . . . . . . . . . 8.1(a)
"Wyoming Commissioner" . . . . . . . . . . . . . . . . . . . . . . . Recital E
vi
STOCK PURCHASE AGREEMENT, dated as of the 24th day of May, 1996, (this
"Agreement"), by and between FIRST INTERSTATE BANCSYSTEM OF MONTANA, INC.
("Buyer") and XXXXX FARGO & COMPANY ("Seller").
RECITALS
A. BUYER. Buyer has been duly incorporated and is a validly existing
corporation in good standing under the laws of the State of Montana, with its
principal executive offices located in Billings, Montana. Buyer is a bank
holding company registered under the Bank Holding Company Act of 1956, as
amended (the "BHC Act").
B. SELLER. Seller has been duly incorporated and is a validly existing
corporation in good standing under the laws of the State of Delaware, with its
principal executive offices located in San Francisco, California. Seller is a
bank holding company registered under the BHC Act.
X. XXXXX. First Interstate Bank of Montana, N.A. and First Interstate
Bank of Wyoming, N.A. ("Banks") are validly existing national banking
associations organized under the laws of the United States, with their principal
executive offices located in Kalispell, Montana and Casper, Wyoming,
respectively. The Montana Bank has 664,608 authorized shares of common stock,
par value $10.00 per share, and the Wyoming Bank has 11,751 authorized shares,
par value $100.00 per share ("Bank Common Stock") (no other class or series of
capital stock being authorized). Seller is the sole record and beneficial owner
of all of the issued and outstanding shares of Bank Common Stock.
D. SALE AND PURCHASE. At the Effective Time (as defined in Section 1.3),
Seller intends to sell to Buyer and Buyer intends to buy from Seller all of the
shares of Bank Common Stock then issued and outstanding (the "Shares").
E. APPROVALS. The Boards of Directors of Buyer and Seller (at meetings
duly called and held) have determined that this Agreement and the transactions
contemplated hereby are in the best interests of Buyer and Seller, respectively.
The sale and purchase of the Shares contemplated hereby are subject to the prior
approval of the Board of Governors of the Federal Reserve System under Section 3
of the BHC Act (the "FRB Approval") and the state banking commissioner of the
State of Wyoming (the "Wyoming Commissioner"), among other conditions specified
herein.
NOW, THEREFORE, in consideration of the premises, and of the
representations, warranties, covenants and agreements set forth herein, the
parties hereto agree as follows:
1
ARTICLE I
SALE AND PURCHASE OF SHARES
1.1 SALE AND PURCHASE OF SHARES. Subject to the terms and conditions set
forth in this Agreement, Seller hereby agrees to sell to Buyer, and Buyer hereby
agrees to purchase from Seller, at the Effective Time, the Shares, free and
clear of all Encumbrances (as defined in Section 2.1 (d)) (the "Sale").
1.2 PURCHASE PRICE.
(a) AGGREGATE PURCHASE PRICE. Subject to adjustments required
under (b) below, the purchase price for the Shares (the "Purchase
Price") shall be $72,000,000.00.
(b) TECHNICAL ADJUSTMENTS. The Purchase Price shall be increased
or decreased, as appropriate, on or before the 30th calendar day
following the Effective Time by an amount equal to the amount by which
the Book Value of Shareholder's Equity (as defined below) differs from
the amount of such item required by Section 3.1(b)(i) of this
Agreement. Any adjustments made pursuant to this subsection 1.2(b)
shall be either (1) normal recurring accounting adjustments
customarily made by the Banks following the end of an applicable
accounting period; or (2) adjustments necessary for the correction of
variances from generally accepted accounting principles or errors in
the preparation of financial statements prepared or used for purposes
of consummating the transactions contemplated by this Agreement; or
(3) subject to 1.2(c) below, adjustments caused by a deficiency or
overage in the Dividends (as later defined).
(i) Seller shall, on or before the 20th calendar day following
the Effective Time, provide to Buyer such financial statements
and information prepared by Seller or Banks and used or useful in
the calculation of the Book Value of Shareholder's Equity of the
Banks as of the Effective Time. As used in this Agreement, the
term "Book Value of Shareholder's Equity" shall mean the total of
capital stock, surplus and undivided profits together with the
tax-effected valuation reserve under FASB 115, determined in
accordance with generally accepted accounting principles;
PROVIDED, HOWEVER, (A) in calculating the Book Value of
Shareholder's Equity, no effect shall be given to purchase
accounting adjustments made by Seller after March 31, 1996, and
(B) accounts related to current taxes payable and deferred tax
liabilities shall be added and any balances in accounts relating
to current taxes receivable or deferred tax assets shall be
subtracted.
(ii) Either Buyer or Seller may request an adjustment to
Purchase Price by providing a written notice to the other party
setting forth the amount of any proposed adjustment and the
reasons for such adjustment.
2
(c) DIVIDENDS. Seller shall cause Banks to declare and pay prior to
the Effective Time dividends, reasonably estimated to reduce the Book
Value of Shareholder's Equity at the Effective Time to the amount
identified in Section 3.1(b)(i) (the "Dividends"). If the Dividends
are subject to the approval of the Comptroller of the Currency (the
"OCC") and the OCC declines to authorize the Dividends, in whole or in
part, then the Purchase Price will be increased by an amount equal to
the unpaid Dividends; PROVIDED, HOWEVER, the increase in Purchase
Price shall not exceed $1,000,000.00.
(d) DISPUTE RESOLUTION. Any disputes as to adjustments made
pursuant to this Section 1.2 shall be resolved by KPMG Peat Marwick
LLP ("PEAT"). The parties acknowledge that PEAT is the principal
accountant for both Buyer and Seller. The parties jointly and
severally waive any claim of conflict of interest as to the
involvement of PEAT in the dispute resolution process and agree that
PEAT's determination shall be final and binding upon the parties.
1.3 EFFECTIVE TIME. Buyer and Seller each will use reasonable efforts
to cause the Sale to become effective at 11:59 p.m. Mountain time on the last
day of the month in which occurs satisfaction or waiver of the last of the
conditions specified in Section 4.1. Notwithstanding the foregoing, Buyer and
Seller may cause the Sale to become effective on such earlier or later day or
time following the satisfaction or waiver of such conditions as they may agree
in writing. The date and time when the Sale shall become effective are herein
referred to as the "Effective Time".
1.4 CLOSING.
(a) TIME AND PLACE. The closing of the Sale (the "Closing") shall
take place at the offices of Seller or such other place as the parties
may agree upon at 10:00 a.m., Pacific time, on the next business day
following the date on which the Effective Time occurs.
(b) DELIVERIES BY SELLER. At the Closing, Seller shall deliver, or
cause to be delivered, to Buyer the following:
(i) Certificates evidencing the Shares, duly endorsed in blank
or accompanied by stock powers duly executed in blank in proper
form for transfer; and
(ii) The certificates to be delivered pursuant to Section 4.3(a)
and (b); and
(iii) The opinion of counsel to be delivered pursuant to Section
4.3(c);
(iv) Evidence of the removal or resignations of directors
pursuant to Section 4.3(d).
3
(c) DELIVERY BY BUYER. At the Closing, Buyer shall deliver, or cause
to be delivered, to Seller the following:
(i) The Purchase Price by wire transfer in immediately
available funds to an account designated by Seller; and
(ii) The certificates to be delivered pursuant to Section 4.2(a)
and (b); and
(iii) The opinion of counsel to be delivered pursuant to Section
4.2(c).
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1 REPRESENTATIONS AND WARRANTIES OF SELLER. Subject to Section 2.3 and
except as set forth in the relevant Schedules, Seller hereby represents and
warrants to Buyer as of the date of this Agreement and as of the Effective Time:
(a) RECITALS TRUE. The statements of fact set forth in Recitals B, C
and E of this Agreement with respect to Seller are true.
(b) ORGANIZATION AND QUALIFICATION OF BANKS. Banks have the
requisite corporate power and authority to own or lease their
properties and assets and to carry on their business as it is now
being conducted and are duly qualified to do business and in good
standing as a foreign corporation in each jurisdiction where the
properties owned, leased or operated or the business conducted by it
require such qualification. Banks are an "insured depository
institution" as defined in the Federal Depository Insurance Act, as
amended (the "FDI Act"), and applicable regulations thereunder, having
its deposits insured by the Federal Deposit Insurance Corporation (the
"FDIC"), subject to applicable FDIC coverage limitations. Seller has
made available to Buyer a complete and correct copy of the articles of
association and bylaws of Banks and each of Banks' respective
subsidiaries, each as amended to date and currently in full force and
effect.
(c) SUBSIDIARIES. Schedule 2.1(c) lists all of the subsidiaries of
Banks and the amount and percent of Seller's stock ownership, thereof;
except as so listed, neither Banks nor any of their subsidiaries own
any stock, partnership, joint venture or limited liability company
interest or any other equity security issued by any other corporation,
organization or other entity (collectively, together with any
individual, a "Person") other than in a bona fide fiduciary capacity
or in satisfaction of a debt previously contracted in good faith.
Each of Banks' subsidiaries is a corporation in good standing under
the laws of the jurisdiction in which such subsidiary is incorporated
and is duly qualified to do business and in
4
good standing in each jurisdiction where the properties owned, leased
or operated, or the business conducted, by such subsidiary require
such qualification. Each of Banks' subsidiaries has the requisite
corporate power and authority to own or lease its properties and
assets and to carry on its business as it is now being conducted.
(d) CAPITAL STOCK.
(i) All of the issued and outstanding shares of capital stock of
Banks and each subsidiary of Banks have been duly authorized and
are validly issued, fully paid and nonassessable.
(ii) Seller has good and marketable title to the Shares, free and
clear of all liens, pledges, security interests, claims, proxies,
subscriptive rights or other encumbrances or restrictions of any
kind (collectively, "Encumbrances"). Banks or a subsidiary of
Banks are the sole record and beneficial owners of the shares of
capital stock of each subsidiary of Banks, free and clear of all
Encumbrances. There are no outstanding subscriptions, options,
warrants, rights, convertible securities or other agreements or
commitments of Seller, Banks or any of their subsidiaries of any
character relating to the issued or unissued capital stock or
other securities of Banks or any of their subsidiaries
(including, without limitation, those relating to the issuance,
sale, purchase, redemption, conversion, exchange, redemption,
voting or transfer thereof), nor are there any stock
appreciation, phantom or similar rights based upon the book value
or other attribute of Banks' capital stock.
(e) CORPORATE AUTHORITY. Seller has the requisite corporate power
and authority and has taken all corporate action necessary in order to
execute and deliver this Agreement, and this Agreement is a valid and
legally binding agreement of it enforceable in accordance with the
terms hereof.
(f) GOVERNMENTAL FILINGS. Except as disclosed in Schedule 2.1(f),
other than the FRB Approval, the approval of the Wyoming Commissioner
as may be required under Wyoming law, and the OCC, no notices, reports
or other filings are required to be made by Seller with, nor are any
consents, registrations, approvals, permits or authorizations required
to be obtained by Seller from, any domestic or foreign governmental or
regulatory authority, agency, court, commission or other entity
(collectively, "Governmental Entities"), in connection with the
execution, delivery or performance of this Agreement by Seller and the
consummation by it of the transactions contemplated hereby.
(g) NO CONFLICTS. The execution, delivery and performance of this
Agreement by Seller do not and will not, and (upon receipt of the FRB
Approval and the expiration of any related waiting period) the
consummation by it of any of the
5
transactions contemplated hereby will not, with or without the giving
of notice, the lapse of time or both:
(i) Conflict with or violate Seller's certificate of
incorporation or bylaws, Banks' articles of association or bylaws
or the comparable governing instruments of any of Banks'
subsidiaries;
(ii) Except as set forth on Schedule 2.1(g)(ii), violate or
breach, or constitute or result in a default under, any
agreement, lease, contract, note, mortgage, indenture,
arrangement or other obligation (collectively, "Contracts") of
Seller, Banks or any of Banks' subsidiaries;
(iii) Except as disclosed in Schedule 2.1(g)(iii), conflict with,
violate or breach any law, rule, ordinance or regulation or
judgment, decree, order, award or governmental or
non-governmental permit or license to which Seller, Banks or any
of Banks' subsidiaries are subject; or
(iv) Except as set forth on Schedule 2.1(g)(iv), result in any
acceleration of, or change in, the rights or obligations of any
party under any Contracts of Seller, Banks or any of Banks'
subsidiaries.
(h) REPORTS AND FINANCIAL STATEMENTS.
(i) With respect to periods since December 31, 1994, Banks and
each of their subsidiaries have filed all reports and statements,
together with any amendments required to be filed with respect
thereto, that they were required to file with (A) the OCC, (B)
the FDIC and (C) any other applicable federal or state banking,
insurance or other regulatory authorities, and, as of their
respective dates (and, in the case of reports or statements filed
prior to the date hereof, without giving effect to any amendments
or modifications filed after the date of this Agreement), such
reports and statements, including the financial statements and
exhibits thereto, complied (or will comply, in the case of
reports or statements filed after the date of this Agreement)
with all applicable statutes, rules and regulations.
(ii) Seller has delivered to Buyer each Consolidated Report of
Condition (including Domestic and Foreign Subsidiaries) filed by
Banks with the OCC with respect to periods since January 1, 1996,
and will promptly deliver each such report filed after the date
hereof (collectively, the "Call Reports").
(iii) Except as disclosed in Schedule 2.1(h)(iii), each of Banks'
consolidated balance sheets included in their Call Reports fairly
presents (or, in the case of Call Reports prepared after the date
of this Agreement,
6
will fairly present) the consolidated financial position of Banks
and their subsidiaries as of the date of such balance sheet and
each of the consolidated income statements and statement of
changes in equity capital included in their Call Reports fairly
presents (or, in the case of Call Reports prepared after the date
of this Agreement, will fairly present) the consolidated results
of operations and retained earnings, as the case may be, of Banks
and their subsidiaries for the periods set forth therein in each
case in accordance with the regulatory accounting principles
consistently applied during the periods involved, except as may
be noted therein and except for normal adjustments made at year
end only.
(iv) The financial information provided to Buyer by Seller and
identified on Schedule 2.1(h)(iv) was true and correct (A) as of
the date stated with respect to such financial information, or
(B) if no date is stated, then as of the date the information was
provided to Buyer.
(v) Except as set forth on Schedule 2.1(h)(v), Banks have no
liabilities or obligations of any nature, whether accrued,
absolute, contingent or otherwise, and whether or not required to
be shown on a balance sheet prepared in accordance with
regulatory accounting principles, except as are shown or
reflected in the Call Reports.
(vi) The aggregate Banks' allowance for loan and lease losses of
the Banks shall, as of the Effective Time, be the amount set
forth on Schedule 2.1(h)(vi).
(i) ASSET CLASSIFICATION. Schedule 2.1(i) sets forth a list,
accurate and complete in all respects, of the aggregate amounts of
loans, extensions of credit and individual loans or extensions of
credit and other assets of the respective Bank and its subsidiaries
with a principal balance in excess of $250,000.00 that have been
criticized or classified as of March 31, 1996, by the respective Bank,
separated by category of classification or criticism (the "Asset
Classification"); and no amounts of loans, extensions of credit or
other assets that have been classified or criticized as of the date
hereof by a representative of any Governmental Entity as "Other Loans
Especially Mentioned", "Substandard", "Doubtful", "Loss" or words of
similar import are excluded from the amounts disclosed in the Asset
Classification, other than amounts of loans, extensions of credit or
other assets that were charged off by it or its subsidiaries prior to
the date hereof.
(j) ABSENCE OF CERTAIN EVENTS AND CHANGES. Since the date of the
most recent Call Report filed by Banks before the date of this
Agreement, Banks and their subsidiaries have conducted their
respective businesses only in the ordinary and usual course of such
businesses and, without giving effect to Section 2.4(a)(i) or to
Section 2.4(b), there has not been any change or development affecting
the business of the Banks.
7
(k) PROPERTIES. Except as disclosed or reserved against in its Call
Reports or as disclosed in Schedule 2.1(k), Banks and their
subsidiaries have good and marketable title, free and clear of all
Encumbrances (other than Encumbrances for current taxes not yet
delinquent or pledges to secure deposits) to all of the properties and
assets, tangible or intangible, reflected in their Call Reports as
being owned by them or their subsidiaries as of the dates thereof.
All buildings and all fixtures, equipment and other property and
assets that relate to Banks' business on a consolidated basis are
held under leases or subleases by them or their subsidiaries are held
under valid leases or subleases enforceable in accordance with their
respective terms (except as may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other laws affecting
creditors' rights generally or by general equity principles).
(l) COMPLIANCE WITH LAWS. Banks and each of their subsidiaries:
(i) Except as disclosed in Schedule 2.1(l)(i), are in
compliance, in the conduct of their business, with all applicable
federal, state, local and foreign statutes, laws, regulations,
ordinances, rules, judgments, orders or decrees applicable
thereto or to the employees conducting such businesses,
including, without limitation, the National Bank Act, the Equal
Credit Opportunity Act, the Fair Housing Act, the Community
Reinvestment Act, the Home Mortgage Disclosure Act and all other
applicable fair lending laws or other laws relating to
discrimination (collectively, the "Fair Lending Laws");
(ii) Except as disclosed in Schedule 2.1(l)(ii) have all
permits, licenses, certificates of authority, orders and
approvals of, and have made all filings, applications and
registrations with, Governmental Entities, that are required in
order to permit them or such subsidiary to carry on their
business as it is presently conducted;
(iii) Have not received notification or communication from any
Governmental Entity (including the OCC and any other bank,
insurance and securities regulatory authorities) or the staff
thereof, which remains in effect (A) asserting that it or any of
its subsidiaries is not in compliance with any of the statutes,
regulations or ordinances that such Governmental Entity enforces;
(B) threatening to revoke any license, franchise, permit or
governmental authorization; or (C) threatening or contemplating
revocation or limitation of, or which would have the effect of
revoking or limiting, FDIC deposit insurance;
(iv) Are not required to give prior notice to any federal
banking agency of the proposed addition of any individual to its
board of directors or the employment of an individual as a senior
executive;
8
(v) Are not subject to the limitations on acceptance of deposits
set forth in Section 29 of the FDI Act; and
(vi) With respect to Banks, have been assigned a rating of
"satisfactory record of meeting community credit needs" or higher
in its most recent examination under Section 4 of the Community
Reinvestment Act (no subsidiary of Banks being an "insured
depository" as defined in the FDI Act).
(m) LITIGATION. Except as set forth on Schedule 2.1(m), there are no
criminal or administrative investigations or hearings of, before or by
any Governmental Entity, or civil, criminal or administrative actions,
suits, claims or proceedings of, before or by any Person (including
any Governmental Entity) pending or, to the knowledge of Seller's
Executive Officers, threatened, against Banks or any of their
subsidiaries (including, without limitation, under any of the Fair
Lending Laws) and neither Seller nor any of its subsidiaries (nor any
officer, director, controlling person or property of it or any of its
subsidiaries) is a party to or is subject to any order, decree,
agreement, memorandum of understanding or similar arrangement with, or
a commitment letter or similar submission to, any Governmental Entity
charged with the supervision or regulation of depository institutions
or engaged in the insurance of deposits (including, without
limitation, the OCC and the FDIC) or the supervision or regulation of
Banks or any of their subsidiaries and neither Seller nor any of its
subsidiaries has been advised by any such Governmental Entity that
such Governmental Entity is contemplating issuing or requesting (or is
considering the appropriateness of issuing or requesting) any such
order, decree, agreement, memorandum of understanding, commitment
letter or similar submission.
(n) TAXES.
(i) The term "Tax" includes any tax or similar governmental
charge, impost or levy (including, without limitation, income
taxes, franchise taxes, transfer taxes or fees, stamp taxes,
sales taxes, use taxes, excise taxes, ad valorem taxes,
withholding taxes, employee withholding taxes, worker's
compensation, payroll taxes, unemployment insurance, social
security, minimum taxes or windfall profits taxes), together with
any related liabilities, penalties, fines, additions to tax or
interest, imposed by the United States or any state, county,
provincial, local or foreign government or subdivisions or agency
thereof.
(ii) Each Bank has timely filed or will file (or, where
appropriate, its respective parent has timely filed or will file)
all required tax returns and has paid all Taxes due, payable or
owed for all periods for which returns are required to be filed,
other than Taxes contested in good faith. Schedule 2.1(n)
attached hereto lists the date or dates through which the
9
Internal Revenue Service and any other governmental entity have
examined the United States federal income tax returns and state
or local income or franchise tax returns of each Bank. Except as
set forth on Schedule 2.1(n)(ii) attached hereto, (a) no
governmental entity has, during the past three years, examined or
is in the process of examining any Tax returns of either Bank,
(b) no governmental entity has proposed any deficiency,
assessment, or claim for Taxes against either Bank; and (c)
neither Seller nor either Bank has requested nor been granted any
extension of the time for filing any tax return.
(o) INSURANCE. Schedule 2.1(o) lists each insurance policy
maintained by Banks, their respective subsidiaries or by Seller or a
Seller affiliate with respect to Banks or their subsidiaries (the
"Insurance Policies"). All such policies are in full force and effect
and none of Banks, their subsidiaries or Seller are in default with
respect to their obligations under the Insurance Policies.
(p) LABOR MATTERS. Neither Banks nor any of their subsidiaries are a
party to, or are bound by, any collective bargaining agreement,
contract or other agreement or understanding with a labor union or
labor organization, nor are Banks or any of their subsidiaries the
subject of any proceeding asserting that they or any such subsidiary
have committed an unfair labor practice or seeking to compel it or
such subsidiary to bargain with any labor organization as to wages or
conditions of employment, nor is there any strike involving Banks or
any of their subsidiaries pending or, to the knowledge of Seller's or
Banks' Executive Officers, threatened, nor are Seller's or Banks'
Executive Officers aware of any activity involving Banks' or any of
their subsidiaries' employees seeking to certify a collective
bargaining unit or engaging in any other organizational activity.
(q) EMPLOYEE BENEFITS.
(i) Schedule 2.1(q) sets forth, as of the date of this
Agreement, a true and complete list of each employee benefit
plan, arrangement or agreement (the "Plans") that covers
employees or former employees (the "Employees") of Banks and
their subsidiaries or any trade or business, whether or not
incorporated (an "ERISA Affiliate"), all of which together with
the Banks would be deemed a "single employer" within the meaning
of Section 4001 of the Employee Retirement Income Security Act of
1974, as amended ("ERISA"). True and complete copies of the
Plans have been made available to Buyer.
(ii) All of Banks' and their ERISA Affiliates' employee benefit
Plans, within the meaning of Section 3(3) of ERISA, covering
Employees have been operated and administered in all respects in
accordance with applicable laws, including but not limited to
ERISA and the Internal Revenue Code (the "Code") and each of the
Plans which is an "employee
10
pension benefit plan" within the meaning of Section 3(2) of ERISA
and which is intended to be "qualified" under Section 401(a) of
the Code is so qualified. There are no pending, threatened or
anticipated claims (other than routine claims for benefits) by,
or on behalf of or against any of the Plans or any trusts related
thereto. Since January 1, 1994, neither Banks nor an ERISA
Affiliate have engaged in a transaction in connection with which
Banks or an ERISA Affiliate could be subject to either a civil
penalty assessed pursuant to Section 409 or 502(i) of ERISA or a
tax imposed pursuant to Section 4975 or 4976 of the Code.
(iii) All required contributions which are due from Banks have
either been made or properly accrued and no Plan has an
accumulated or waived funding deficiency within the meaning of
Section 412 of the Internal Revenue Code or Section 302 of ERISA.
Neither the Seller or an ERISA Affiliate has incurred, directly
or indirectly, any liability (including material contingent
liability) to or on account of a Plan pursuant to Title IV of
ERISA. No proceedings have been instituted to terminate any Plan
that is subject to Title IV of ERISA. A "reportable event", as
such term is defined in Section 4043(b) of ERISA has occurred
with respect to each of the Plans that is subject to Title IV of
ERISA which, due to the merger of First Interstate Bancorp with
and into Seller, are now sponsored by the Seller's controlled
group. No condition exists which would result in any liability
to Seller with respect to any Plan. The current value of the
assets of each of the Plans that is subject to Title IV of ERISA,
based upon the actuarial assumptions (to the extent reasonable)
presently used by such Plan, exceeds the present value of the
accrued benefits under such Plan. Neither Banks or any of their
subsidiaries has any actual or potential liability for any
complete or partial withdrawal within the meaning of Sections
4201, 4203 or 4205 of ERISA (and there would be no such liability
assuming a complete or partial withdrawal from all the Plans at
the Effective Time) with respect to any Plan.
(iv) With respect to each Plan which is subject to Title IV of
ERISA, the present value of accrued benefits under such Plan,
based upon the actuarial assumptions used for funding purposes in
the most recent actuarial report prepared by such Plan's actuary
with respect to such Plan, did not, as of its latest valuation
date, exceed the then current value of the assets of such Plan
allocable to such accrued benefits. No liability under Title IV
of ERISA has been incurred by Banks or an ERISA Affiliate that
has not been satisfied in full, and no condition exists that
presents a risk to Banks or any ERISA Affiliate of incurring a
liability thereunder. A "reportable event," as such term is
defined in Section 4043(b) of ERISA has occurred with respect to
each of the Plans that is subject to Title IV of ERISA which, due
to the merger of First Interstate Bancorp with and into Seller,
are now sponsored by the Seller's controlled group. No Plan is a
11
"multi-employer pension plan," as such term is defined in Section
3(37) of ERISA. All contributions or other amounts payable by
Banks as of the Effective Time with respect to each Plan in
respect of current or prior plan years have been paid or accrued
in accordance with generally accepted accounting practices and
Section 412 of the Code.
(v) Neither Banks or their subsidiaries have any actual or
potential liability for benefits after separation from employment
of any employee other than (A) as provided for in Article VIII of
this Agreement or (B) health care continuation benefits described
in Section 4980B of the Internal Revenue Code or ERISA Title I,
Subtitle B, Part G.
(vi) No employee of Banks or their subsidiaries is absent due to
(A) a disability that currently entitles the employee to benefits
under any long-term disability policy provided by Seller or Banks
or (B) military service.
(r) ENVIRONMENTAL MATTERS.
(i) For purposes of this Section 2.1(r), the following terms
shall have the indicated meaning:
"BUSINESS" means the business conducted by Banks and their
subsidiaries.
"ENVIRONMENTAL LAW" means any law, regulation, order or decree
relating to Hazardous Substances or the protection of the
environment.
"HAZARDOUS SUBSTANCES" means substances which are listed or
classified pursuant to any Environmental Law, including any
petroleum products or byproducts, polychlorinated biphenyls
("PCBs"), radioactive materials or radon gas.
(ii) Except as disclosed in Schedule 2.1(r)(ii), Banks and each
of their subsidiaries, and each property owned by the Banks or
their subsidiaries (collectively, "Bank Property"), are in
compliance with applicable Environmental Laws.
(iii) There are no pending claims, actions, or proceedings
involving Banks or any of their subsidiaries relating to:
A. An asserted liability of Banks or any of their
subsidiaries under any Environmental Law or the terms and
conditions of any permit, license, authority, settlement,
agreement, decree or other obligation pursuant to any
Environmental Law;
12
B. The handling, storage, use, transportation, removal or
disposal of Hazardous Substances;
C. The discharge, release or emission of Hazardous
Substances from, on or under or within Bank Property into
the air, water, surface water, ground water, land surface
or subsurface strata; or
D. Personal injuries or damage to property caused by a
release of Hazardous Substances.
(iv) Except as disclosed on Schedule 2.1(r)(iv), to the
knowledge of Sellers' and Banks' Executive Officers, no Hazardous
Substances have been used, handled, stored, released or emitted
by Banks or one of their subsidiaries at or on any Bank Property
except in compliance with applicable Environmental Laws and as
would not be reasonably expected to create conditions requiring
remediation under any Environmental Law.
(v) No part of any Bank Property is scheduled for investigation
or monitoring pursuant to any Environmental Law.
(s) MATERIAL AGREEMENTS.
(i) Except for this Agreement or as disclosed in Schedule
2.1(s)(i), neither Banks nor any of their subsidiaries (A) is a
party to any written or oral contract for the employment of any
officer, individual employee or other person on a full-time or
consulting basis, or relating to severance pay for any such
person, (B) is a party to any written or oral agreement or
understanding to repurchase assets previously sold (or to
indemnify or otherwise compensate the purchaser in respect of
such assets), except for securities sold under a repurchase
agreement that has been entered into in the ordinary course of
business for normal funding purposes and that provides a
repurchase date 30 days or less after the purchase date, (C) is a
party to any (1) contract or group related contracts with the
same party for the purchase or sale of products or services under
which the undelivered balance of such products and services has a
purchase price in excess of $50,000.00 for any individual
contract or $100,000.00 for any group of related contracts in the
aggregate, (2) other agreement that was not entered into in the
ordinary course of business or (D) has any commitments for
capital expenditures in excess of $100,000.00.
(ii) None of Banks nor any of their subsidiaries is in default
under any contract, agreement, commitment, arrangement, lease,
insurance policy or other instrument.
13
(iii) Schedule 2.1(s)(iii) sets forth each contract, agreement or
obligation by, between or among Banks, or either of them, and
Seller or any indirect or direct subsidiary of Seller; excluding,
however, (A) contracts, agreements or obligations by and between
Banks and their respective subsidiaries, (B) loan participations
purchased or sold and otherwise reflected on the Banks' books and
records, and (C) all Tax Sharing Agreements referred to in
Section 3.9(g) (collectively the "Intercompany Agreements").
(iv) Schedule 2.1(s)(iv) sets forth each contract, agreement or
other arrangement to which Banks are not a party but pursuant to
which Banks receive services necessary to the business of the
Banks or under which Banks are obligated to make payments (the
"Service Contracts").
(t) KNOWLEDGE AS TO CONDITIONS. Sellers' and Banks' Executive
Officers know of no reason why the FRB Approval and, to the extent
necessary, any other approvals, authorizations, filings, registrations
and notices should not be obtained without the imposition of any
condition or restriction described in the proviso to Section 4.1(a).
(u) BROKERS AND FINDERS. None of Seller, its subsidiaries or any of
their officers, directors or employees has employed any broker or
finder or incurred any liability for any brokerage fees, commissions
or finder's fees in connection with the transactions contemplated
herein.
(v) ADMINISTRATION OF FIDUCIARY OBLIGATIONS. Except as disclosed on
Schedule 2.1(v), Banks and their respective subsidiaries (i) have each
properly administered all accounts for which it acts as a fiduciary,
including, but not limited to, accounts for which it serves as
trustee, agent, custodian, personal representative, guardian,
conservator or investment advisor, in accordance with the terms of the
governing documents and applicable state and federal law and
regulation; and (ii) have maintained true and correct accountings
which properly and accurately reflect the assets of such fiduciary
accounts; and (iii) have not committed any breach of trust with
respect to any such fiduciary account.
2.2 REPRESENTATIONS AND WARRANTIES OF BUYER. Subject to Section 2.4, as
of the date of this Agreement and as of the Effective Time and except as set
forth in Buyer's Schedules, Buyer hereby represents and warrants to Seller that:
(a) RECITALS TRUE. The statements of fact set forth in Recitals A
and E of this Agreement with respect to Buyer are true.
(b) CORPORATE AUTHORITY. Buyer has the requisite corporate power and
authority and has taken all corporate action necessary in order to
execute and deliver this
14
Agreement, and this Agreement is a valid and legally binding agreement
of it enforceable in accordance with the terms hereof.
(c) GOVERNMENTAL FINDINGS. Other than the FRB Approval and approval
by the Wyoming Commissioner, no notices, reports or other filings are
required to be made by Buyer with, nor are any consents,
registrations, approvals, permits or authorizations required to be
obtained by Buyer from any Governmental Entity in connection with the
execution, delivery or performance of this Agreement by Buyer and the
consummation by it of the transactions contemplated hereby.
(d) NO CONFLICTS. The execution, delivery and performance of this
Agreement by Buyer do not and will not, and (upon receipt of the FRB
Approval and approval of the Wyoming Commissioner, the expiration of
any related waiting period) the consummation by it of any of the
transactions contemplated hereby will not, with or without the giving
of notice, the lapse of time or both:
(i) Conflict with or violate Buyer's certificate of
incorporation or bylaws;
(ii) Violate or breach, or constitute or result in a default
under, any Contracts of Buyer;
(iii) Conflict with, violate or breach any law, rule, ordinance
or regulation or judgment, decree, order, award or governmental
or non-governmental permit or license to which Buyer is subject;
or
(iv) Result in any acceleration of, change in the rights or
obligations of any party under any Contracts of Buyer.
(e) SECURITIES ACT. Buyer is acquiring the Shares for its own
account and not with a view to their distribution within the
meaning of Section 2.11 of the Securities Act of 1933, as amended
(the "Securities Act") or in any manner that would be in
violation of the Securities Act. Buyer has not, directly or
indirectly, offered the Shares to anyone or solicited any offer
to buy the Shares from anyone, so as to bring such offer and sale
of the Shares by Buyer within the registration requirements of
the Securities Act. Buyer will not sell, convey, transfer or
offer for sale any of the Shares except upon compliance with the
Securities Act and any applicable state securities laws or
pursuant to any exemption therefrom.
(f) FINANCING. Prior to September 1, 1996 (and without regard to the
provisions of Section 2.3), Buyer will have obtained commitments for
debt and/or equity financing sufficient to pay the Purchase Price and
to purchase the Shares on the terms and conditions of this Agreement,
which commitments shall be subject only to conditions reasonably
acceptable to Seller.
15
(g) LITIGATION. There are no criminal or administrative
investigations or hearings of, before or by any Governmental Entity,
or civil, criminal or administrative actions, suits, claims or
proceedings of, before or by any Person (including any Governmental
Entity) pending or, to the knowledge of its Executive Officers,
threatened against Buyer or any of its subsidiaries (including,
without limitation, under any of the Fair Lending Laws); and neither
Buyer nor any of its subsidiaries (nor any officer, director,
controlling person or property of it or any of its subsidiaries) is a
party to or is subject to any order, decree, agreement, memorandum of
understanding or similar arrangement with, or a commitment letter or
similar submission to, any Governmental Entity charged with the
supervision or regulation of depository institutions or engaged in the
insurance of deposits (including, without limitation, the OCC and the
FDIC) or the supervision or regulation of it or any of its
subsidiaries, and neither Buyer nor any of its subsidiaries has been
advised by any such Governmental Entity that such Governmental Entity
is contemplating issuing or requesting (or is considering the
appropriateness of issuing or requesting) any such order, decree,
agreement, memorandum of understanding, commitment letter or similar
submission.
(h) BROKERS AND FINDERS. None of Buyer, its subsidiaries or any of
their offices, directors or employees has employed any broker or
finder or incurred any liability for any brokerage fees, commissions
or finder's fees in connection with the transactions contemplated
herein.
(i) KNOWLEDGE AS TO CONDITIONS. Buyer's Executive Officers know of
no reason why the FRB Approval and the approval of the Wyoming
Commissioner and, to the extent necessary, any other approvals,
authorizations, filings, registrations and notices should not be
obtained without the imposition of any condition or restriction
described in the proviso to Section 4.1(a).
(j) CRA RATING. Buyer and each of Buyer's subsidiary banks have been
assigned a rating of "satisfactory record meeting community credit
needs" in its most recent examination under Section 4 of the Community
Reinvestment Act.
2.3 RIGHT TO CURE. Seller and Buyer shall each have the right, but not
the obligation, to cure a breach of any representation or warranty contained in
this Article II. Any breach must be cured within 30 days from the date the
curing party learns of the breach or is advised in writing by the other party
that a breach of a representation or warranty has occurred. Any breach which
cannot be cured within 30 days may nonetheless be cured after the expiration of
the 30-day period; PROVIDED, HOWEVER, that reasonable efforts to cure the breach
have been commenced within the 30-day period and, PROVIDED further, that the
breach has been cured prior to December 2, 1996. Neither party shall have the
right to terminate this Agreement pursuant to the provisions of Article V on
account of a breach of any representation or warranty which has been cured in
accordance with the provisions of this Section 2.3.
16
2.4 EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES.
(a) On or prior to the date hereof, Buyer has delivered to Seller and
Seller has delivered to Buyer the Schedules setting forth, among other
things, exceptions to any or all of its representations and warranties
in this Article II; PROVIDED, that (i) no such exception is required
to be set forth in a Schedule if its absence would not result in the
related representation or warranty being deemed untrue or incorrect
under the standard established by Section 2.4(b) and (ii) the mere
inclusion of any exception in a Schedule shall not be deemed an
admission by a party that such exception represents a material fact,
event or circumstance or would result in a Material Adverse Effect and
(iii) the delivery by either party of a corrected or amended Schedule
after the date of this Agreement shall not have the effect of curing
or correcting any prior breach or other failure of any representation
or warranty made by such party.
(b) No representation or warranty of Buyer or Seller contained in
this Article II shall be deemed untrue or incorrect, and no party
hereto shall be deemed to have breached a representation or warranty,
as a consequence of the existence of any fact, circumstance or event
if such fact, circumstance or event, individually or taken together
with all similar facts, circumstances or events, would not have a
Material Adverse Effect. As used in this Agreement, the term
"Material Adverse Effect" means an effect which (i) is materially
adverse to the business, financial condition, results of operations or
prospects of Buyer, Seller or the Banks or the respective individual
Bank and its subsidiaries as the context may dictate, (ii)
significantly and adversely affects the ability of Buyer or Seller, as
the context may dictate, to consummate the transactions contemplated
hereby or to perform its material obligations hereunder, or (iii)
enables any Person to prevent the consummation of the transactions
contemplated hereby; PROVIDED, HOWEVER, that any effect resulting from
(A) actions or omissions of Buyer or Seller taken with the prior
consent of the other party in contemplation of the transactions
provided for herein or (B) circumstances affecting the banking
industry in Montana and Wyoming generally shall be deemed not to be a
Material Adverse Effect.
2.5 NO OTHER REPRESENTATIONS OR WARRANTIES. Except for the
representations and warranties contained in this Article II, none of Buyer,
Seller or any other Person makes any other express or implied representation or
warranty on behalf of or with respect to Buyer or Seller, and Buyer and Seller
hereby disclaim any such representation or warranty, whether by Buyer, Seller or
any other Person, with respect to the execution and delivery of this Agreement,
the consummation of the transactions contemplated herein, Buyer or Seller
(notwithstanding the delivery of disclosure to the other party hereto or any
other Person of any documentation or other information by Buyer, Seller or any
other Person with respect to any one or more of the foregoing).
17
ARTICLE III
COVENANTS
3.1 CONDUCT OF BUSINESS PENDING THE EFFECTIVE TIME. Seller agrees that,
from and after the date hereof until the Effective Time, except insofar as Buyer
shall otherwise consent in writing (such consent not to be unreasonably
withheld) or except as otherwise expressly contemplated by this Agreement or set
forth in Schedules provided to Buyer:
(a) It shall cause Banks to use all reasonable efforts to (i) in all
material respects, operate their business only in the ordinary course;
(ii) preserve intact their business organization; (iii) maintain their
properties in sufficient operating condition and repair to enable them
to operate in all material respects their business in the manner in
which they are currently operated; and (iv) keep and maintain the
Insurance Policies in full force and effect.
(b) Banks shall not:
(i) Declare, set aside or pay any dividends payable in cash,
property or otherwise with respect to the Shares which have the
effect of reducing at the Effective Time the Book Value of
Shareholder's Equity (as defined in Section 1.2(b)(i) below
$19,272,886.00 for First Interstate Bank of Montana, N.A. and
below $16,559,547.00 for First Interstate Bank of Wyoming, N.A.;
(ii) Take any action the effect of which is to reduce the
aggregate Banks' allowance for loan and lease losses to an
amount, as of the Effective Time, less than the amount set forth
on Schedule 2.1(h)(vi) or to reduce the Montana Bank loan loss
reserve below $2,000,000.00;
(iii) Issue, sell or deliver any shares of their capital stock or
issue or sell any securities convertible into, or options with
respect to, or warrants to purchase or other rights to subscribe
to or acquire, any shares of their capital stock;
(iv) Effect any recapitalization, reclassification, stock
dividend, stock split or like exchange in capitalization;
(v) Amend their articles of association or bylaws;
(vi) Merge or consolidate with or, except as a result of
foreclosure or repossession in the ordinary course of banking
business, acquire substantially all of the assets or make any
material investment in the stock or securities of any other
Person or close any banking offices existing as of the date of
this Agreement;
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(vii) Sell, transfer, lease or encumber a material amount of
assets except in the ordinary course of business other than (A)
the sale and transfer of student loans held by Banks to Seller or
an affiliate of Seller prior to the Effective Time at a
reasonable arm's-length value, and (B) transfer of Control
Disbursement Accounts (as defined in and contemplated by Section
7.5);
(viii) Grant to any director, officer, employee or consultant any
material increase in compensation or benefits;
(ix) Grant any severance or termination pay to, or enter into
or amend any employment or severance agreement with, any Person,
other than termination pay paid in the ordinary course of
business to officers or employees;
(x) Adopt any new or amend any existing Compensation Plans
(including, without limitation, profit sharing, bonus, director
and officer incentive compensation, retirement, medical,
hospitalization, life or other insurance plans, agreements and
commitments), except for amendments or modifications necessary to
comply with applicable law;
(xi) Incur any material amount of indebtedness other than in
the ordinary course of business consistent with past practice;
PROVIDED, HOWEVER, Banks shall not engage in any hedging
practices, derivatives speculation or other similar activities);
(xii) Make any change in accounting principles, charge-off
policies, loan loss reserve policies, or methods from those
currently employed, except as required by generally accepted
accounting principles or applicable regulatory requirements or
fail to take any action appropriate under such policies,
including, without limitation, to charge-off loans or make
provisions to the loan loss reserves;
(xiii) Grant any mortgage or security interest in, or make any
pledge of, or permit any Encumbrance to be placed on, any
material amount of its assets or properties other than in the
ordinary course of business;
(xiv) Take any action that is intended or may reasonably be
expected to result in a breach or violation of any of the
representations and warranties contained in this Agreement or
would cause any condition to the transactions contemplated hereby
not to be satisfied, except, in every case, as may be required by
law;
(xv) Accelerate, terminate or cancel any material contract,
lease or license other than in the ordinary course of business;
or
19
(xvi) Agree or commit to do any of the foregoing.
3.2 ACCESS TO INFORMATION.
(a) From the date hereof until a date 75 days following the Closing,
upon reasonable notice, Seller shall, and shall cause its employees,
auditors and agents (collectively, its "Representatives") and the
Representatives of the Banks to, (i) afford Representatives of the
Buyer reasonable access, during normal business hours, to the offices,
properties of the Banks and books and records of Banks and of Seller
(to the extent such books and records relate to Banks), and (ii)
furnish to Representatives of Buyer such additional financial and
operating data and other information regarding the assets, properties,
goodwill and business of the Banks as Buyer may from time to time
reasonably request; PROVIDED, HOWEVER, that such investigation shall
not unreasonably interfere with any of the businesses or operations of
Seller, Banks or any of their subsidiaries.
(b) Without limiting or modifying any of the terms, provisions, and
conditions of a Confidentiality Agreement between the parties dated
April 18, 1996 and amended May 2, 1996 ("Confidentiality Agreement"),
the terms of which are incorporated herein by reference, each of
Buyer and Seller agree that it will not, and will cause its
Representatives and the Representatives of its subsidiaries not to,
use any nonpublic information obtained from the other party in
connection with or relating to this Agreement, the investigation
leading up to its execution or the transactions contemplated hereby
(including, without limitation, by Buyer pursuant to Section 3.2(a))
for any purpose unrelated to the consummation of the transactions
contemplated by this Agreement. Pending consummation of the
transactions herein contemplated, each of Buyer and Seller agrees that
it will keep confidential, and will cause its and its subsidiaries'
Representatives to keep confidential, all nonpublic information and
documents so obtained from the other party; PROVIDED, that the
obligation to keep such information or documents confidential shall
not apply to (i) any information or document that (A) was already in
Buyer's or Seller's possession prior to the disclosure thereof by the
other party, (B) was then generally known to the public, (C) became
known to the public through no fault of Buyer or Seller, as the case
may be, or (D) was disclosed to Buyer or Seller, as the case may be,
by a third party not bound by an obligation of confidentiality or (ii)
disclosure (A) required by law, governmental or regulatory authority,
(B) reasonably necessary for seeking and obtaining regulatory approval
of the transactions contemplated by this Agreement, and (C) subject to
the reasonable consent of Seller, disclosure by Buyer in connection
with solicitation and issuance of debt or equity instruments in
furtherance of the transactions contemplated by this Agreement. Upon
any termination of this Agreement, each party will collect and deliver
to the other party all nonpublic documents obtained by it or any of
its or its subsidiaries' Representatives then in their possession
(other than documents of the type described in the proviso to the
preceding sentence) and any copies thereof and destroy or cause to be
destroyed
20
all notes, memoranda or other documents in the possession of it or its
subsidiaries' Representatives containing or reflecting any nonpublic
information obtained from the other party (other than information of
the type described in the proviso to the preceding sentence), except
to the extent that any such information may be embodied in minutes of
the meetings of such party's Board of Directors or in filings, reports
or submissions to or with any Governmental Entity. Promptly after any
such termination, each of Buyer and Seller shall deliver to the other
a certificate signed on its behalf by a senior officer to the effect
of its compliance with the agreements of it set forth in the preceding
sentence. Any information received by either party under, or prior to
the execution of, this Agreement and accorded confidentiality shall
not be used by such party to the competitive detriment of the party
providing such information. The provisions of this Section 3.2(b) and
the Confidentiality Agreement shall survive the termination of this
Agreement.
(c) Seller acknowledges Buyer is required to cause an audit of the
Banks to be conducted pursuant to Regulation SX Section 210.3-05 and
agrees to accommodate Buyer and Buyer's agents in the provision of
information, books and records for the conduct of the required audit.
3.3 REASONABLE EFFORTS. Subject to the terms and conditions of this
Agreement and applicable law, each of the parties shall use all reasonable
efforts to take, or cause to be taken, all actions, and to do, or cause to be
done, all things necessary, proper or advisable to consummate and make effective
the transactions contemplated by this Agreement as soon as practicable,
including such actions or things as any other party may reasonably request in
order to cause any of the conditions to such other party's obligation to
consummate such transactions specified in Article IV of this Agreement to be
fully satisfied. Without limiting the foregoing, the parties shall (and shall
cause their respective officers, employees, agents, attorneys, accountants and
representatives to) consult and fully cooperate with and provide assistance to
each other in (i) promptly obtaining all necessary consents, approvals, waivers,
licenses, permits, authorizations, registrations, qualifications or other
permission or action by, and giving all necessary notices to and making all
necessary filings with and applications and submissions to, any Governmental
Entity or other Person as soon as reasonably practicable; (ii) providing all
such information about such party, its subsidiaries and its officers, directors,
partners and affiliates and making all applications and filings as may be
necessary or reasonably required in connection with any of the foregoing; and
(iii) in general, consummating and making effective the transactions
contemplated hereby; PROVIDED, HOWEVER, Buyer shall be solely responsible for
the preparation and filing of applications seeking regulatory approval for the
transaction contemplated by this Agreement, and Seller shall be solely
responsible for obtaining OCC approval of the Dividends.
3.4 NOTICE OF CERTAIN MATTERS. Each of Buyer and Seller will give prompt
notice to the other of the occurrence or failure to occur of any fact, event or
circumstance that would or is reasonably likely to result in (i) a Material
Adverse Effect, (ii) any of the representations or warranties of such party
contained herein being untrue or inaccurate when made (subject to Section 2.4),
(iii) a material breach of any of the covenants or agreements of such party
contained
21
herein, (iv) the failure of a condition to consummation set forth in Article IV,
or (v) any Schedule or amended Schedule being or becoming inaccurate or
incorrect.
3.5 NO SOLICITATION. The Seller shall not, and shall not authorize or
permit Banks or any of their respective Representatives to, directly or
indirectly, (a) encourage or solicit (including by way of furnishing nonpublic
information), or take any other action to facilitate, any inquiry or proposal
from any Person (other than Buyer) concerning any merger, consolidation, sale of
substantial assets, sale of shares of capital stock or subsidiaries, or (b)
entertain, agree to, endorse or participate in any discussions or negotiations
or provide third parties with nonpublic information relating to any such inquiry
or proposal. Seller agrees to notify Buyer promptly upon receipt of any such
inquiry or proposal.
3.6 USE OF BANK INFORMATION. From and after the date of this Agreement,
Seller shall not use, or allow any affiliate of Seller or any officer, employee
or agent of Seller or a Seller affiliate to use, in any manner, Banks' customer
lists or customer information maintained in or generated or derived from Banks'
books and records (the "Customer Information") in the solicitation of Banks'
customers, including, without limitation, in the creation or maintenance of
advertising lists, customer profiles or direct mailings. Nothing in this
Section 3.6 shall be construed to prohibit the use of Customer Information prior
to the Effective Time by Seller, Seller affiliates or Banks for the purpose of
retaining or soliciting by or for Banks the business and relationships between
the respective Bank and its customers.
3.7 PUBLICITY. Buyer and Seller shall consult with each other prior to
issuing any press releases or otherwise making public statements with respect to
the transactions contemplated hereby and prior to making any filings with any
Governmental Entity with respect thereto.
3.8 BENEFIT PLANS. Seller shall maintain all employee benefit plans,
policies, procedures, and programs, including the Plans, for the benefit of the
Banks' employees until the Effective Time consistent and in accordance with
Seller's past practices and all applicable contractual, statutory, and
regulatory requirements. To the extent required, Seller shall continue to make
all employer contributions under any employee benefit plan, including the Plans,
so that at the Effective Time there will be no monetary deficiency,
underfunding, penalty, or other assessment against Seller, Buyer, Banks and/or
such employee benefit plans.
3.9 TAX MATTERS.
(a) I.R.C. Section 338(h)(10) ELECTION. Seller agrees, if requested
by Buyer, to join with Buyer in making an election under Section
338(h)(10) of the Internal Revenue Code (and, except as provided in
Section 3.9(b) below, any corresponding elections under state, local
or foreign tax laws) (collectively a "Section 338(h)(10) Election")
with respect to the purchase and sale of the stock of the Banks under
this Agreement.
(i) Seller will pay any Tax attributable to the making of the
Section 338(h)(10) Election and will indemnify Buyer against any
loss, cost or expense arising out or related to the failure to
pay such Tax.
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(ii) Buyer shall be responsible for preparing all forms as may
be necessary or appropriate to make a Section 338(h)(10)
Election. Seller agrees to take, in a timely manner, all
reasonable actions necessary or appropriate to effect a Section
338(h)(10) Election;
(iii) For purposes of making a Section 338(h)(10) Election,
Buyer shall allocate the purchase price to the assets of each of
the Banks, which allocation shall be made by Buyer subject to the
approval of Seller, which approval shall not be unreasonably
withheld, in accordance with the requirements of applicable
federal or state law. Seller and Buyer shall be bound by such
allocation for purposes of any Section 338(h)(10) Election.
(b) CALIFORNIA STATE Section 338 ELECTIONS.
(i) At the request of Seller, Buyer agrees to join with Seller
in making elections for the sales of the Shares of each Bank to
Buyer to be treated as sales of assets for California franchise
tax purposes, under the provisions of California Revenue and
Taxation Code Sections which correspond to Sections 338(g) and
338(h)(10) of the Code (collectively a "California State Section
338(h)(10) Election") with respect to the sale and purchase of
the Shares.
(ii) Seller shall be responsible for preparing all forms as may
be necessary or appropriate to make the California State Section
338(h)(10) Elections. Buyer agrees to take, in a timely manner,
all reasonable actions necessary or appropriate to effect such
election.
(iii) For purpose of making the California State Section
338(h)(10) Election, the purchase price shall be allocated in
accordance with Section 3.9(a)(iii) above (regardless of whether
a Section 338(h)(10) Election is made pursuant to Section
3.9(a)). Seller and Buyer shall be bound by such allocation for
purposes of any California State Section 338(h)(10) Election.
(iv) Seller and Buyer agree that the California State Section
338(h)(10) Elections shall apply only to the tax consequences of
the transactions described in this Agreement for purposes of the
laws of the State of California. Such election shall in no way
govern the tax treatment of the transactions described in this
Agreement for Federal or state (other than California) income tax
purposes.
(c) FILING OF TAX RETURNS AND PAYMENT OF TAXES.
(i) Buyer shall prepare and timely file, or cause to be
prepared and timely filed, with the appropriate authorities all
tax returns, reports, and forms required to be filed with respect
to the Banks for any taxable period ending after the Effective
Time (a "Post-Closing Tax Period"), and for all
23
tax returns, reports and forms required to be filed subsequent to
the Effective Time with respect to any taxable period of the
Banks ending on or before the Effective Time other than for
federal income taxes and state income, license or franchise taxes
(a "State or Other Pre-Closing Tax Period"), and Buyer will pay,
and indemnify Seller for, all Taxes, losses, costs or expenses
related to or due with respect to such returns, reports, and
forms described above.
(ii) Seller shall prepare and timely file, or cause to be
prepared and timely filed, with the Internal Revenue Service the
consolidated federal income tax returns (which include the
operations of the Banks), and with the appropriate state income
tax authorities, the state income, license or franchise tax
returns of the Banks with respect to any taxable period ending on
or before the Effective Time (a "Pre-Closing Tax Period"), and
Seller will pay, and indemnify Buyer for, all Taxes, losses,
costs and expenses related to or due with respect to such returns
unless otherwise provided for in this Agreement. Buyer shall
permit, and shall cause its subsidiaries to permit, Seller
reasonable access to any of the books and records of each Bank
(or any successor thereto) which Seller may require in order to
timely prepare the foregoing returns as well as reasonable access
to and the services of each Bank's (or any successors thereto)
employees for such purpose.
(iii) Buyer will cause the Banks to close their permanent books
and records (including work papers) as of the end of the day of
the Effective Time according to Treasury Regulation Section
1.1502-76(b)(1)(ii)(A) or other applicable or reasonable rules so
that the portion of each Bank's Taxes attributable to a Pre-
Closing Tax Period, a State or Other Pre-Closing Tax Period, or a
Post-Closing Tax Period may be determined.
(iv) Seller, each Bank, and Buyer (and any of its subsidiaries)
shall reasonably cooperate in preparing and filing all returns,
reports, and forms relating to Taxes, and in resolving all
disputes and audits with respect to all taxable period relating
to Taxes. Seller, each Bank, and Buyer (and any of its
subsidiaries) shall each maintain and preserve all information
relating to Taxes of each Bank for so long as it may be needed by
Seller, each Bank, or Buyer.
(d) REFUNDS OF TAXES.
(i) Any refund of Taxes with respect to a Bank that is
received with respect to any Pre-Closing Tax Period, any State or
Other Pre-Closing Tax Period, or to the portion of any Post-
Closing Tax Period ending at or before the Effective Time shall
be for the account of Seller. If Buyer, either of the Banks, or
any affiliate thereof receives any such refund after
24
the Effective Time, the Buyer shall pay to Seller or cause the
Bank or affiliate to pay to Seller, the amount of such refund
received within 15 calendar days after the receipt thereof.
Seller, Buyer, and Banks shall assist one another in preparing,
filing, obtaining and defending any refund payable pursuant to
this Section 3.9(d)(i).
(ii) If Seller receives any refund of Taxes with respect to
either Bank attributable to any Post-Closing Tax Period (or
portion thereof) which begins after the Effective Time, then
Seller shall pay to the Bank the amount of such refund received
within 15 calendar days after the receipt thereof. Seller,
Buyer, and Banks shall assist one another preparing, filing,
obtaining and defending any refund payable pursuant to this
Section 3.9(d)(ii).
(e) CONTROL OF AUDITS. Each of Seller and the Buyer shall have the
right, at its own expense, to control any audit or determination by
any governmental entity, and to contest, resolve and defend against
any assessment, notice of deficiency, or other adjustment or proposed
adjustment of Taxes for any taxable period for which it may be
obligated to indemnify the other party under this Agreement; provided,
however, that no party shall have the right to agree to any
assessment, deficiency, settlement, or other adjustment or proposed
adjustment of Taxes that would adversely affect another party without
such other party's written consent, which consent shall not be
unreasonably withheld. With respect to any taxable period for which
Seller and Buyer may both have liability for Taxes, Buyer shall be
responsible for handling any audit or determination with respect to
such tax liability; PROVIDED, HOWEVER, that Buyer shall not agree to
any assessment, deficiency, settlement, or other adjustment or
proposed adjustment of such Taxes without the consent of Seller, which
consent shall not be unreasonably withheld.
(f) RESOLUTION OF DISAGREEMENTS AMONG PARTIES ON TAX MATTERS. If
Seller or the Buyer disagree as to any matter governed by this Section
3.9 the parties shall promptly consult with each other in an effort to
resolve such dispute. Any amounts not in dispute shall be paid
promptly, and any amounts payable upon the resolution of a dispute
shall be made to a bank account designated by the payee no later than
10 business days after such resolution. If any such disagreement
cannot be resolved within 30 days after Seller or Buyer asserts in
writing that such dispute cannot be resolved, Seller and the Buyer
shall jointly select a national accounting firm with no material
relationship to either party to act as an arbitrator to resolve the
disagreement. The accounting firm's determination shall be final and
binding upon the parties, and any fees and expenses relating to the
engagement of the accounting firm shall be shared equally by Seller
and the Buyer. Upon the resolution of such dispute by the accounting
firm, any amounts payable by Seller or the Buyer, as the case may be,
shall be made to a bank account designated by the payee no later than
10 business days after such resolution. Simple interest will be paid
with respect to any such amounts at the
25
federal funds rate from the date of the assertion in writing that the
dispute cannot be resolved to the date of payment.
(g) TAX SHARING AGREEMENTS. Any tax sharing agreements,
arrangements, policies, or guidelines, formal or informal, express or
implied, that may exist between Seller and a Bank (a "Tax Sharing
Agreement") shall terminate, and, except as described in this Section
3.9, any obligations to make payments under any Tax Sharing Agreement
shall be canceled as of the Effective Time.
(h) PREDECESSORS AND SUCCESSORS. For purposes of this Section 3.9,
all references to the Seller shall include any entity merged with and
into the Seller and all references to a Bank shall include any
successor of such entity and shall include all subsidiaries of such
Bank or successor entity.
3.10 RIGHT TO CURE. Seller and Buyer shall have the right, but not the
obligation, to cure a breach of any covenant as contained in this Article III.
Any such breach must be cured within 30 days from the date the curing party
learns of the breach or is advised in writing by the other party that a breach
has occurred. Breaches which cannot be cured within 30 days may nonetheless be
cured after the expiration of the 30-day period; PROVIDED, HOWEVER, that
reasonable efforts to cure the breach have been commenced within the 30-day
period, and PROVIDED further, that the breach has been cured prior to
December 2, 1996.
ARTICLE IV
CONDITIONS
4.1 CONDITIONS TO EACH PARTY'S OBLIGATION TO EFFECT THE SALE. The
respective obligation of each of Buyer and Seller to consummate the Sale is
subject to the fulfillment or written waiver by Buyer and Seller prior to the
Effective Time of each of the following conditions:
(a) GOVERNMENTAL AND REGULATORY CONSENTS. The FRB Approval and the
Wyoming Commissioner's approval shall have been obtained and shall be
in full force and effect and all related waiting periods shall have
expired; and all other material approvals and authorizations of,
filings and registrations with, and notifications to, all Governmental
Entities required for the consummation of the Sale and for the
prevention of any termination of any right, privilege, license or
agreement of Banks or their subsidiaries shall have been obtained or
made and shall be in full force and effect (unless such termination
would not have a Material Adverse Effect) and all waiting periods
required by law shall have expired; PROVIDED, HOWEVER, that none of
the preceding shall be deemed obtained or made if it shall be
conditioned or restricted in a manner that would result in a Material
Adverse Effect which is unduly burdensome or onerous. Without
limiting the foregoing, examples of burdensome or onerous conditions
include limitations on
26
the time, manner or amount of payment of dividends by Buyer or a Buyer
subsidiary or requiring changes in the directorship of Buyer.
(b) THIRD PARTY CONSENTS. All consents or approvals of all Persons
(other than Governmental Entities) required for or in connection with
the execution, delivery and performance of this Agreement and the
consummation of the Sale shall have been obtained and shall be in full
force and effect, unless the failure to obtain any such consent or
approval would not have a Material Adverse Effect.
(c) LITIGATION. No United States or state court or other
Governmental Entity of competent jurisdiction shall have enacted,
issued, promulgated, enforced or entered any statute, rule,
regulation, judgment, decree, injunction or other order (whether
temporary, preliminary or permanent) which is in effect and prohibits
consummation of the transactions contemplated by this Agreement.
(d) EXECUTION OF LICENSE AGREEMENT. The parties have executed the
License Agreement more particularly described in Section 6.6.
(e) OCC APPROVAL. Subject to the provisions of 1.2(c), the OCC shall
have approved, to the extent necessary under governing law, the
Dividends.
4.2 CONDITIONS TO OBLIGATION OF SELLER. The obligation of Seller to
consummate the Sale is also subject to the fulfillment or written waiver by
Seller prior to the Effective Time of each of the following conditions:
(a) REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Buyer set forth in this Agreement shall be true and
correct (subject to Section 2.4) as of the date of this Agreement and
as of the Effective Time as though made on and as of the Effective
Time (except that representations and warranties that by their terms
speak as of the date of this Agreement or some other date shall be
true and correct as of such date), and Seller shall have received a
certificate, dated the date of the Effective Time, signed on behalf of
Buyer by an Executive Officer of Buyer to such effect.
(b) PERFORMANCE OF OBLIGATIONS OF BUYER. Buyer shall have performed
in all material respects all obligations required to be performed by
it under this Agreement at or prior to the Effective Time, including
but not limited to the tender and payment of the Purchase Price, and
Seller shall have received a certificate, dated the date of the
Effective Time, signed on behalf of Buyer by an Executive Officer of
Buyer to such effect.
(c) OPINION OF COUNSEL. Buyer shall have delivered to Seller an
opinion of counsel, dated the date of the Effective Time, in form and
substance reasonably satisfactory to the Seller, with respect to the
matters addressed in Section 2.2(a), (b), (c) and (d).
27
4.3 CONDITIONS TO OBLIGATION OF BUYER. The obligation of Buyer to
consummate the sale is also subject to the fulfillment or written waiver by
Buyer prior to the Effective Time of each of the following conditions:
(a) REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Seller set forth in this Agreement shall be true and
correct (subject to Section 2.4) as of the date of this Agreement and
as of the Effective Time as though made on and as of the Effective
Time (except that representations and warranties that by their terms
speak as of the date of this Agreement or some other date shall be
true and correct as of such date), and Buyer shall have received a
certificate, dated the date of the Effective Time, signed on behalf of
Seller by an Executive Officer of Seller to such effect.
(b) PERFORMANCE OF OBLIGATIONS OF SELLER. Seller shall have
performed in all material respects all obligations required to be
performed by it under this Agreement at or prior to the Effective
Time, and Buyer shall have received a certificate, dated the date of
the Effective Time, signed on behalf of Seller by an Executive Officer
of Seller to such effect.
(c) OPINION OF COUNSEL. Seller shall have delivered to Buyer an
opinion of outside counsel, dated the date of the Effective Time, in
form and substance reasonably satisfactory to Buyer, with respect to
the matter addressed in Sections 2.1(a), (b), (c), (d), (e), (f), (g)
and (m).
(d) RESIGNATION OF DIRECTORS. Banks' directors shall have resigned
or been removed effective as of the Effective Time without further
obligation or liability of Banks or Buyer.
(e) TERMINATION OF INTERCOMPANY AGREEMENTS. Seller shall have caused
the Banks to terminate the Intercompany Agreements without further
liability or obligation of the Banks or Buyer. All sums due to or
owed by the Banks pursuant to terminated Intercompany Agreements,
other than the Tax Sharing Agreements referred to in Section 3.9(g),
shall be settled prior to the Effective Time for the account and
benefit of the Seller.
(f) SERVICE CONTRACTS. Banks' rights or obligations under the
Service Contracts shall have been terminated or, with the consent of
Buyer and Seller, the Service Contracts shall have been assigned in
whole or in part to Banks or Buyer.
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ARTICLE V
TERMINATION, AMENDMENT AND WAIVER
5.1 TERMINATION. This Agreement may be terminated at any time prior to
the Effective Time:
(a) By the mutual written consent of Seller and Buyer;
(b) By either Seller or Buyer, if (i) the Effective Time shall not
have occurred on or prior to December 2, 1996, or (ii) any approval or
authorization of any Governmental Entity, the lack of which would
result in the failure to satisfy the closing condition set forth in
Section 4.1(a), shall have been denied by such Governmental Entity or
such Governmental Entity shall have requested the withdrawal of any
application therefor or indicated an intention to deny, or impose a
condition of a type referred to in the proviso to Section 4.1(a) with
respect to such approval or authorization; PROVIDED, HOWEVER, that the
right to terminate this Agreement under this Section 5.1(b) shall not
be available to any party whose failure to fulfill any obligation
under this Agreement shall have been the cause of, or shall have
resulted in, either the failure of the Effective Time to occur on or
prior to such date or such action by such Governmental Entity, as the
case may be;
(c) By Seller, if Buyer shall have breached any representation,
warranty, covenant or agreement contained herein that would result in
the failure to satisfy the closing condition set forth in Section
4.1(a) or 4.2(b) and such breach cannot be or has not been cured
within 30 days after the giving of a written notice to Buyer of such
breach; or
(d) By Buyer, if Seller shall have breached any representation,
warranty, covenant or agreement contained herein that would result in
the failure to satisfy the closing condition set forth in Section
4.3(a) or 4.3(b) and such breach cannot be or has not been cured
within 30 days after the giving of a written notice to Seller of such
breach.
5.2 EFFECT OF TERMINATION. In the event of termination of this Agreement
as provided in Section 5.1, this Agreement shall forthwith become void and there
shall be no liability on the part of any party hereto.
5.3 WAIVER. Subject to Section 9.10, at any time prior to the Effective
Time, either party hereto may (a) extend the time for the performance of any of
the obligations or other acts of the other party hereto, (b) waive any
inaccuracies in the representations and warranties contained herein or in any
document delivered pursuant hereto or (c) waive compliance with any of the
agreements or conditions contained herein.
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ARTICLE VI
FRANCHISE AGREEMENTS AND NAME
6.1 CONTINUED USE OF FIRST INTERSTATE NAME, LOGO AND TRADEMARK.
(a) Effective as of the Effective Time, Seller shall grant Buyer an
exclusive and perpetual license to use the name "First Interstate
Bank" and the logo and trademark in the States of Montana, Wyoming,
North Dakota, South Dakota and Nebraska.
(b) Effective as of the fifth anniversary of the Effective Time,
Seller shall grant Buyer an exclusive and perpetual license to use the
name "First Interstate Bank" and the logo and trademark in the State
of Colorado.
(c) Effective as of the sixth anniversary of the Effective Time,
Seller shall grant Buyer an exclusive and perpetual license to use the
name "First Interstate Bank" and the logo and trademark in the States
of Idaho and Utah.
6.2 MUTUAL RELEASE OF ALL CLAIMS. As of the date of this Agreement, Buyer
and Seller, on behalf of themselves and their successors in interest,
transferees, and assigns, shall release one another from any and all claims,
causes of action or suit which each may have against the other and arising out
of or related to the Franchise Agreement dated as of September 26, 1983, as
amended from time to time (the "Franchise Agreement"). Except as provided in
Section 6.5, after the date of this Agreement, neither Buyer nor Seller shall
have any continuing obligation or responsibility to the other on account of the
Franchise Agreement, and the ongoing relationship between the parties shall be
governed by the provisions of this Agreement and the License Agreement described
in Section 6.3. This Section 6.2 shall survive termination of this Agreement.
6.3 SEPARATE AGREEMENT. Concurrent with the execution of this Agreement,
Seller and Buyer shall execute and deliver a licensing agreement in form and
substance reasonably satisfactory to each party and incorporating the terms of
this Article VI (the "License Agreement"). The License Agreement shall survive
termination of this Agreement.
6.4 NON-COMPETITION. Seller, on behalf of itself, its affiliates and
subsidiaries, shall refrain from conducting a depository institution business
through an office or offices located in the states of Montana or Wyoming for a
period of six years following the Effective Time. Subject to Section 3.6,
nothing contained in this Section 6.7 shall prohibit Seller from contacting or
soliciting potential customers in Montana and Wyoming in conjunction with a
nationwide or regional general solicitation which does not specifically target
Buyer's customers in Montana and Wyoming. Seller may conduct a depository
institution business through an office or offices in the States of Montana or
Wyoming before the expiration of six years following the Effective Time if a
presence in these states is the result of an acquisition of or merger with
another bank, bank holding company, savings association, savings bank, savings
association holding company, or other company or entity which has its principal
place of business outside the States of Montana
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and Wyoming and which owns and operates banks, branches, loan or deposit
production offices in these states.
6.5 RESOLUTION OF CERTAIN RELATIONSHIPS.
(a) The parties agree to resolve, extend or terminate, as the case
may be, the following relationships arising out of or related to the
Franchise Agreement in the following manner:
(i) Teller services: Terminate the service at a time mutually
agreed upon, but no later than August 1, 1996.
(ii) Automated Teller Machine gateway: Seller will continue to
provide ATM gateway services and ATM interchange on terms and
conditions applicable as of the date of this Termination Agreement.
Either Buyer or Seller may terminate the ATM gateway and ATM
interchange upon 180 days' written notice to the other party. Seller
may alter the terms and conditions of the service to reasonable new
terms and conditions upon 60 days' written notice to Buyer.
(iii) ACTION: either party may terminate the ACTION service
upon 60 days written notice to the other party.
(iv) Mortgage servicing: the Wyoming Bank currently provides
mortgage servicing. At any time following termination of this
Agreement, Seller will cause the Wyoming Bank to continue mortgage
servicing obligations on the terms and conditions currently in effect.
Either Seller or Buyer may terminate mortgage servicing upon 60 days
written notice to the other party.
(v) Merchant processing: Seller will continue to provide
merchant processing on terms and conditions in effect as of the date
of this Agreement. Either Seller or Buyer may terminate merchant
processing upon 120 days' written notice to the other party. Seller
may alter the terms and conditions of the service to reasonable new
terms and conditions upon 60 days' written notice to Buyer.
(vi) Purchase discounts: terminated as of the date of this
Agreement.
(vii) Technical support: terminated as of the date of this
Agreement.
(viii) Advertising: terminated as of the date of this Agreement.
(b) Franchise fees under the Franchise Agreement terminate effective
as of the date of this Agreement.
(c) The parties shall execute and deliver such instruments and
agreements necessary or convenient to evidence the service provisions
of this Section 6.5.
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ARTICLE VII
POST-EFFECTIVE TIME PROVISIONS
7.1 INDEMNIFICATION. From and after the Effective Time, subject to the
terms and conditions of this Agreement, Seller shall indemnify, defend and hold
harmless Buyer and each of its subsidiaries (including Banks following the
Effective Time) from and against any and all losses, claims, damages or
liabilities (collectively "Losses") that any of them actually suffer, incur or
sustain arising out of or attributable to (whether or not arising out of
third-party claims):
(a) Any breach of any representation or warranty made by Seller as
expressed in Sections 2.1(n) and 2.1(q);
(b) Any breach of any of Seller's covenants set forth in Section
3.1(b)(xiv) to the extent that such breach relates to Seller's
warranties set forth in Sections 2.1(n) and 2.1(q); or
(c) Fiduciary accounts or relationships transferred by Banks to
Seller, or a subsidiary or affiliate of Seller, at or prior to the
Effective Time.
7.2 LIMIT ON INDEMNIFICATION. Buyer's right of indemnification under this
Article VII is subject to the following conditions and limitations:
(a) Notice for any claim of indemnification must be given before the
third anniversary of the Effective Time;
(b) Indemnification shall only be available to the extent the Losses
of Buyer and its subsidiaries, collectively, exceed, in the aggregate
for Banks, $500,000.00.
7.3 NOTICE. Buyer shall promptly notify Seller of the discovery by it of,
or the assertion against it or any of its subsidiaries of, any claim or
potential liability for which indemnification is provided under this Agreement
or the commencement of any action or proceeding in respect of which indemnity
may be sought under this Agreement.
7.4 SETTLEMENT. Seller shall have the right to settle or compromise any
claim or liability subject to indemnification under this Agreement that is
susceptible to being settled or compromised through the payment of money,
provided that any such settlement shall require the consent of Buyer, which
consent shall not be unreasonably withheld; and provided, further, that the
consent of Buyer shall not be required if (i) the terms of the settlement
require only the payment of damages, and (ii) the indemnified party is not
otherwise materially and adversely affected by the terms of the settlement.
7.5 CONTROL DISBURSEMENT ACCOUNTS. Schedule 7.5 identifies certain
customer account relationships (the "Control Disbursement Accounts") currently
maintained by or through the
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Wyoming Bank. Buyer and Seller acknowledge and agree that Seller has caused or
will cause the Control Disbursement Accounts to be transferred to a Seller
affiliate on or after the date of this Agreement and prior to the first
anniversary of the Effective Time. Buyer shall cause Banks to cooperate with
Seller on and after the Effective Time in the management, operation and transfer
of the Control Disbursement Accounts as Seller may reasonably request. Seller
shall pay Buyer or the Wyoming Bank a reasonable service fee for Buyer's or
Wyoming Bank's management and servicing of the Control Disbursement Accounts.
Seller shall not be obligated to pay Buyer or Wyoming Bank any further
consideration in connection with the transfer of the Control Disbursement
Accounts.
7.6 DATA PROCESSING SERVICES. Seller shall make available to Buyer and
Banks data processing services for the business of the Banks for a period not to
exceed three calendar months following the Effective Time. Buyer or Banks shall
pay Seller for such data processing services on terms and at pricing consistent
with industry practices and comparable arm's-length data processing services
contracts.
7.7 TRANSFER OF BANK BOOKS, RECORDS AND INFORMATION. At or within a
reasonable time following the Effective Time, Seller shall transfer and deliver
to Buyer at the Banks' respective premises all Bank books, records and
information, however maintained or stored, which then is or later comes within
Seller's possession or control.
ARTICLE VIII
TRANSFERRED EMPLOYEES
8.1 TRANSFERRED EMPLOYEES.
(a) As soon as reasonably practicable and in any event within
fourteen (14) days of the date hereof, Seller shall deliver to Buyer a
true and complete list of all Employees by name, date of hire and
position, as of the date hereof, together with their most recent
performance evaluations, current salaries and other compensation
arrangements; provided that Seller shall not release a performance
evaluation without having first obtained the written consent of the
respective Employee. Seller shall promptly notify Buyer of the hiring
and identity of additional employees by Banks. Buyer shall
communicate to Seller those Employees whom Buyer wishes Banks to
retain at least 30 business days prior to the Effective Time. Those
Employees of Banks who remain employed by Banks as of the Effective
Time shall be referred to as "Transferred Employees." Subject to the
provisions of this Article VIII, Transferred Employees will be subject
to the employment terms, conditions and rules applicable to other
employees of Buyer. Nothing contained in this Agreement shall be
construed as an employment contract between Buyer and any Transferred
Employees.
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(b) To the extent permitted under Buyer's 401(k) plan, Seller and
Buyer shall cooperate in arranging for the transfer to Buyer's 401(k)
plan, as soon as practicable after the Effective Time and in a manner
that satisfies Sections 414(l) and 414(d)(6) of the Internal Revenue
Code, of those accounts held under Seller's 401(k) plan on behalf of
Transferred Employees.
(c) Seller shall have the right to continue to employ after the
Effective Time any employee who is not a Transferred Employee, or to
release any such employee in its sole discretion.
(d) Each Transferred Employee shall be provided continued employment
by Buyer, Banks or a subsidiary or affiliate of either subject to the
following terms and conditions:
(i) Except as specifically provided herein, Transferred
Employees shall be provided employee benefits that are no less
favorable in the aggregate than those provided to similarly
situated employees of Buyer. Buyer shall provide such
Transferred Employee with credit for the Transferred Employee's
period of service with Seller or Banks (including service
credited from First Interstate Bancorp towards the calculation of
eligibility for such purposes as vacation, severance and other
benefits and participation and vesting in Buyer's qualified
pension or profit sharing plan, as such plans may exist, but,
except as set forth in (iv) below and for vacation, not for
purpose of benefit accruals, including, without limitation,
funding of accrued pension or profit sharing plans for such
Transferred Employee with respect to any period prior to the
Effective Time).
(ii) Each Transferred Employee shall be eligible to participate
in the medical, dental or other welfare plans of Buyer, as such
plans may exist, effective as of the Effective Time and any
pre-existing conditions provisions of such plans shall be waived
with respect to such Transferred Employee, provided that if
Buyer's relevant health or disability insurance policy or plan
has a pre-existing condition limitation and an Employee's
condition is being excluded (as a pre-existing condition) under
Seller's plan as of the Effective Time, Buyer may treat such
condition as a pre-existing condition for the period such
condition would have been treated as a pre-existing condition
under Seller's plan under which such employee would have been
covered.
(iii) With respect to any Transferred Employee on a short-term
disability or temporary leave of absence, upon conclusion of his
or her short-term disability or temporary leave of absence,
subject to the terms and conditions of the Buyer's plans and
policies and applicable law, each Transferred Employee on such
leave shall receive the salary and vacation benefit in effect
when he or she went on leave, shall otherwise be treated
34
as a Transferred Employee and, to the extent practicable, may be
offered by Buyer the same or a substantially equivalent position
to his or her position with Seller prior to leave.
(iv) Until April 1, 1998, each Transferred Employee shall be
eligible for benefits under the severance plans referred to in
Schedule 2.1(q). Buyer shall be responsible for all payments and
benefits due to Transferred Employees under the severance plans
referred to in Schedule 2.1(q) with the exception of payments and
benefits arising out of claims that Buyer's benefit plans,
programs, policies, and practices do not provide participants in
the severance plans with compensation and benefits at least
substantially similar in the aggregate to those provided under
the plans in effect with respect to the Transferred Employees on
April 1, 1996. Seller shall have the right, but not the
obligation, to compensate the Buyer for the cost of obtaining
comparable benefits so as to avoid the occurrence of a
"triggering event" under applicable severance plans. Buyer
agrees to cooperate with any action taken by Seller to identify
and implement any supplements to the compensation and benefits
with respect to the Transferred Employees. After April 1, 1998,
each Transferred Employee who is continuously employed by Buyer
as of the Effective Time, shall be eligible for benefits under
any severance or similar plans maintained by Buyer with credit
for the period of years of credited service with Seller towards
the calculation of benefits.
(e) Except as provided herein, Seller shall pay, discharge and be
responsible for (i) all salary and wages arising out of or relating to
the employment of the Employees before the Effective Time, and (ii)
any employee benefits (including, but not limited to, accrued
vacation) arising under Seller's employee benefit plans and employee
programs prior to the Effective Time (but not including any future
retiree medical benefits), including benefits with respect to claims
incurred prior to the Effective Time but reported after the Effective
Time, consistent and in accordance with Seller's past practices and
all applicable contractual, statutory, and regulatory requirements.
From and after the Effective Time, Buyer shall pay, discharge and be
responsible for all salary, wages and benefits arising out of or
relating to the employment of the Transferred Employees by Buyer on
and after the Effective Time, including all claims for welfare benefit
plans incurred on or after the Effective Time. Seller shall promptly
inform Buyer of any Employee who resigns prior to the Effective Time.
Claims are incurred as of the date of injury or illness
notwithstanding when the services are provided or disability benefits
paid.
(f) Buyer agrees to cooperate with any action taken by Seller to
identify and implement (at an agreed-upon cost to Buyer) supplements
to the compensation and benefits of the Transferred Employees to
reduce where possible Seller's obligations under the assumed severance
obligations referred to in Schedule 2.1(q)
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to provide Transferred Employees with compensation and benefits at
least substantially similar in the aggregate (in terms of benefit
levels and/or reward opportunities) to those provided for under
employee benefit plans, programs, policies and practices of Seller on
April 1, 1996 (the effective date of its merger with First Interstate
Bancorp).
ARTICLE IX
GENERAL PROVISIONS
9.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations and
warranties set forth in Article II hereof shall be deemed to have been relied
upon by the party to whom they are made and shall not survive the Closing.
9.2 INTERPRETATION OF CERTAIN TERMS. Unless otherwise specifically
provided in this Agreement or clearly required by the context, the following
defined terms shall be interpreted as follows:
(a) "Banks" shall be interpreted to mean the Banks collectively and
each individually, together with their respective subsidiaries.
(b) "Seller" shall be interpreted to mean the Seller, together with
its affiliates and subsidiaries, excluding, however the Banks.
(c) "Buyer" shall be interpreted to mean the Buyer together with its
affiliates and subsidiaries.
(d) "Executive Officer" shall be interpreted to include:
(i) For Seller, chief executive officer, president and chief
financial officer;
(ii) For Banks, chief executive officer, president and
executive vice presidents; and
(iii) For Buyer, chief executive officer, president and chief
financial officer.
9.3 EXPENSES. All costs and expenses, including, without limitation, fees
and disbursements of counsel, financial advisors and accountants, incurred in
connection with this Agreement and the transactions contemplated hereby shall be
paid by the party incurring such costs and expenses, whether or not the Closing
shall have occurred.
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9.4 NOTICES. Any notice, request, instruction or other document to be
given hereunder by any party to the other shall be in writing and shall be
deemed to have been duly given (i) on the date of delivery if delivered
personally or by telefacsimile upon confirmation of receipt, (ii) on the first
business day following the date of mailing if delivered by registered next-day
courier service, or (iii) on the third business day following the date of
mailing if delivered by registered or certified mail, return receipt requested,
postage prepaid. All notices, requests, instructions or other documents to be
given hereunder shall be delivered as set forth below, or pursuant to such other
instructions as may be designated in writing by the party to receive such
notice, request, instruction or document:
(a) If to Seller:
XXXXX FARGO & COMPANY
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Facsimile: 000-000-0000
Attention: Xxx Xxxxxxxxxxx, Xx.
with a copy to:
Xx. Xxxxxxx X. Xxxxx
Xxxxxxx, Xxxxxxxxxx and Xxxxx, P.C.
000 Xxxxx Xxxxxx Xxxx
Xxxxxxxxx, Xxxxxxx 00000
Facsimile: 406-752-5108
or
0000 Xxxxxxxxx Xxxxx Xxxxxx
Xxxxx 0000-0000
Xxxxxxxx, Xxxxxx 00000
Facsimile: 000-000-0000
(b) If to Buyer:
FIRST INTERSTATE BANCSYSTEM OF MONTANA, INC.
000 X. 00xx Xxxxxx
Xxxxxxxx, Xxxxxxx 00000-0000
Facsimile: 000-000-0000
Attention: Xxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
9.5 HEADINGS. The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
37
9.6 SEVERABILITY. If any provision of this Agreement or the application
thereof to any Person or circumstance is determined by a court of competent
jurisdiction to be invalid, void or unenforceable, the remaining provisions
hereof, or the application of such provision to Persons or circumstances other
than those as to which it has been held invalid or unenforceable, shall remain
in full force and effect and shall in no way be affected, impaired or
invalidated thereby, so long as the economic or legal substance of the
transactions contemplated hereby is not affected in any manner materially
adverse to any party. Upon such determination, the parties shall negotiate in
good faith in an effort to agree upon a suitable and equitable substitute
provision to effect the original intent of the parties.
9.7 ENTIRE AGREEMENT; INTERPRETATION. This Agreement, including the
Schedules, constitutes the entire agreement of the parties hereto with respect
to the subject matter hereof and supersedes all prior agreements and
undertakings, both written and oral. It is the intention of the parties that
this Agreement shall not be construed more strictly with regard to one party
than with regard to any other party.
9.8 ASSIGNMENT. Without the written consent of the other parties hereto,
this Agreement shall not be assigned by operation of law or otherwise (any
attempted assignment in contravention hereof being null and void).
9.9 NO THIRD-PARTY BENEFICIARIES. This Agreement is for the sole benefit
of the parties hereto and their permitted assigns and nothing herein, express or
implied, is intended to or shall confer upon any other person or entity any
legal or equitable right, benefit or remedy of any nature whatsoever under or by
reason of this Agreement.
9.10 AMENDMENT; WAIVER. This Agreement may not be amended or modified
except by written agreement executed and delivered by duly authorized officers
of the parties. Waiver of any term or condition of this Agreement (including
any extension of time required for performance) shall only be effective if in
writing, executed and delivered by a duly authorized officer of the waiving
party, and shall not be construed as a waiver of any subsequent breach of the
same term or condition or as a waiver of any other term or condition of this
Agreement. No delay on the part of any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof.
9.11 GOVERNING LAW. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of California applicable to agreements
made and to be performed wholly within such State.
9.12 COUNTERPARTS. This Agreement may be executed in any number of
separate counterparts, each of which when executed shall be deemed to be an
original but all of which taken together shall constitute one and the same
agreement.
9.13 TIME. Time is of the essence.
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IN WITNESS WHEREOF, Buyer and Seller have caused this Agreement to be duly
executed as of the date first written above by their respective officers
thereunto duly authorized.
FIRST INTERSTATE BANCSYSTEM OF
MONTANA, INC.
By:
---------------------------------------------------
Xxxxxx X. Xxxxx
Chairman, President & Chief Executive Officer
XXXXX FARGO & COMPANY
By:
---------------------------------------------------
Xxx Xxxxxxxxxxx, Xx.
Executive Vice President, Chief Counsel
and Secretary
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