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EXHIBIT B
AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger (the "Plan of Merger") is made and
entered into as of September 22, 1998, between St. Xxxxxxx Capital
Corporation, a Wisconsin corporation ("Acquiror"), and Reliance Bancshares,
Inc., a Wisconsin corporation (the "Company"). Acquiror and the Company are
hereinafter sometimes collectively referred to as the "Constituent
Corporations."
RECITALS
Acquiror is a corporation duly organized, validly existing and in good
standing under the laws of the State of Wisconsin. As of the date hereof, the
authorized capital stock of Acquiror consists of 12,000,000 shares of common
stock, $.01 par value per share ("Acquiror Common Stock"), of which 5,186,683
shares were issued and outstanding at June 30, 1998; and 6,000,000 shares of
Preferred Stock, $1.00 par value per share, of which none are outstanding as of
the date hereof.
The Company is a corporation duly organized and validly existing under
the laws of the State of Wisconsin. As of the date hereof, the authorized
capital stock of the Company consists of 6,000,000 shares of Company common
stock, $1.00 par value per share ("Company Common Stock"), of which 2,562,344
shares were issued and 2,403,701 more outstanding at June 30, 1998; and
2,000,000 shares of Preferred Stock, $1.00 par value per share, of which none
are outstanding as of the date hereof.
Acquiror and the Company have entered into an Agreement and Plan of
Reorganization, dated June 30, 1998 (the "Agreement"), setting forth certain
representations, warranties, covenants and agreements in connection with the
transactions therein and herein contemplated and which contemplates the merger
of the Company with and into Acquiror (the "Merger") in accordance with this
Plan of Merger.
Immediately following the Merger or as soon as practicable thereafter,
Acquiror and the Company intend that Reliance Savings Bank, a wholly-owned
subsidiary of the Company (the "Merging Bank"), shall merge (the "Bank Merger"
and such transaction together with the Merger, the "Reorganization") with and
into St. Xxxxxxx Bank, F.S.B., a wholly-owned subsidiary of Acquiror
("Acquiror-Bank").
The respective Boards of Directors of the Company and Acquiror deem
the Merger advisable and in the best interest of each such corporation and
their respective shareholders. The respective Boards of Directors of the
Company and Acquiror, by resolutions duly adopted, have approved the Agreement
and Plan of Merger and the transactions contemplated thereby and hereby, and
the Agreement and Plan of Merger have been submitted to and approved by the
requisite vote of the Company's shareholders.
Therefore, in consideration of the premises and the mutual covenants
and agreements contained herein, Acquiror and the Company hereby covenant and
agree as follows:
ARTICLE I
1.01 Merger of the Company into Acquiror. The Company shall be
merged with and into Acquiror at the Effective Time (as defined in Section
1.02) in accordance with the applicable provisions of the Wisconsin Business
Corporation Law (the "WBCL") and on the terms and subject to the conditions
contained in the Agreement. Simultaneously with the effectiveness of the
Merger, (a) the separate existence of the Company shall cease, and (b)
Acquiror, as the surviving corporation (the "Surviving Corporation"), shall
continue to exist under and be governed by the WBCL.
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1.02 Effective Time. The Merger shall be consummated upon the
filing of appropriate Articles of Merger with the Wisconsin Department of
Financial Institutions ("WDFI") in the form and manner required by the WBCL.
The close of business on the date on which such Articles of Merger shall have
been filed is herein referred to as the "Effective Time," unless some other
date is agreed upon by Acquiror and the Company. Unless otherwise mutually
agreed upon in writing by the parties, and subject to the terms and conditions
hereof, the Effective Time shall occur on the Closing Date (as defined in
Section 12.01 of the Agreement) or the next succeeding business day thereafter.
1.03 Effect of the Merger. Upon the Effective Time:
(a) The separate existence of the Company shall cease and
be merged with and into Acquiror, as the Surviving Corporation, which
shall possess all of the rights, privileges, immunities, powers and
franchises of a public as well as of a private nature, and shall be
subject to all of the restrictions, disabilities and duties, of each
of the Company and Acquiror; and all singular rights, privileges,
immunities, powers and franchises of each of the Company and Acquiror,
and all property, real, personal and mixed, and all debts due to
either the Company or Acquiror in whatever amount, including
subscriptions to shares, and all other things in action or belonging
to each of the Company and Acquiror shall be vested in the Surviving
Corporation; and all property, rights, privileges, immunities, powers
and franchises, and all and every interest, shall be thereafter as
effectually the property of the Surviving Corporation as they were of
the Company and Acquiror and the title to any real estate, or interest
therein, vested by deed or otherwise, in either of the Company and
Acquiror shall not revert or be in any way impaired by reason of the
Merger.
(b) All rights of creditors and all liens upon any
property of the Company or Acquiror shall be preserved unimpaired and
all debts, liabilities and duties of the Company or Acquiror shall
thenceforth attach to the Surviving Corporation and may be enforced
against the Surviving Corporation to the same extent as if said debts,
liabilities and duties had been incurred or contracted by it,
provided, however, that all such liens shall attach only to those
assets to which they were attached prior to the Effective Time.
(c) Any action or proceeding, whether civil, criminal or
administrative, instituted, pending or threatened by or against either
the Company or Acquiror or relating to their assets, liabilities or
shares of common stock shall be prosecuted as if the Merger had not
taken place, and the Surviving Corporation may be substituted as a
party in such action or proceeding in place of the Company.
1.04 Additional Actions. If, at any time after the Effective Time,
the Surviving Corporation shall consider or be advised that any further
assignments or assurances in law or any other acts are necessary or desirable
to (a) vest, perfect or confirm, of record or otherwise, in the Surviving
Corporation its rights, title or interest in, to or under any of the rights,
properties or assets of the Company acquired or to be acquired by the Surviving
Corporation as a result of, or in connection with, the Merger, or (b) otherwise
carry out the purposes of the Agreement and this Plan of Merger, the Company
and its proper officers and directors shall be deemed to have granted to the
Surviving Corporation an irrevocable power of attorney to execute and deliver
all such proper deeds, assignments and assurances in law and to do all acts
necessary or proper to vest, perfect or confirm title to and possession of such
rights, properties or assets in the Surviving Corporation and otherwise to
carry out the purposes of the Agreement and this Plan of Merger; and the proper
officers and directors of the Surviving Corporation are fully authorized in the
name of the Company or otherwise to take any and all such action.
ARTICLE II
2.01 Name. The name of the Surviving Corporation shall be "St.
Xxxxxxx Capital Corporation."
2.02 Articles of Incorporation. The Articles of Incorporation of
Acquiror, as in effect immediately prior to the Effective Time shall, from and
after the Effective Time, be and continue to be the Articles of Incorporation
of the Surviving Corporation until the same are duly amended in accordance with
applicable law.
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2.03 Bylaws. The Bylaws of Acquiror, as in effect immediately
prior to the Effective Time shall, from and after the Effective Time, be and
continue to be the Bylaws of the Surviving Corporation until the same are
amended as provided therein or provided in the Articles of Incorporation of the
Surviving Corporation.
2.04 Officers and Directors. On and after the Effective Time, the
officers and directors of the Surviving Corporation shall be the persons
serving in such positions of Acquiror immediately prior to the Effective Time.
ARTICLE III
3.01 Conversion of Securities. At the Effective Time, by virtue of
the Merger and without any action on the part of Acquiror, the Company or the
holder of any of the following securities, the shares of Acquiror and the
Company shall be converted as follows:
(a) Each share of the common stock, $.01 par value per
share ("Acquiror Common Stock"), of Acquiror issued and outstanding
immediately prior to the Effective Time shall remain outstanding and
shall be unchanged after the Merger; and
(b) Each share of the common stock, $1.00 par value per
share ("Company Common Stock"), of the Company issued and outstanding
immediately prior to the Effective Time (other than any shares held by
the Company as treasury shares or owned by Acquiror or any of its
wholly-owned subsidiaries, but in each case other than Trust Account
Shares or DPC Shares (each as defined below), which shall be canceled,
and other than any Dissenting Shares (as defined in Section 3.05(a)
hereof)) shall cease to be outstanding and shall be converted into and
become, as the holder thereof shall elect or be deemed to have elected
pursuant to Section 3.02(f) but subject to all the provisions of
Section 3.02(g), (h) and (i) hereof;
(1) The right to receive an amount in cash (the
"Per Share Cash Distribution") equal to:
(a) $10.00, if the Acquiror Average
Stock Price as calculated herein is between $32.41
and $40.00;
(b) an amount equal to .250 of the
Acquiror Average Stock Price, if the Acquiror Average
Stock Price as calculated herein is between $40.01
and $42.00;
(c) $10.50, if the Acquiror Average
Stock Price as calculated herein is between $42.01
and $45.74;
(d) an amount equal to .2295 of the
Acquiror Average Stock Price, if the Acquiror Average
Stock Price as calculated herein is $45.75 or more;
(e) If the Acquiror Average Stock Price
is $32.40 or less, then the Acquiror has the option
of completing the Merger using a Per Share Cash
Distribution of $10.00 or terminating the Agreement
pursuant to Section 10.01(e) of the Agreement; or
(2) the right to receive the following (the "Per
Share Stock Distribution):
(a) if the Acquiror Average Stock Price as
calculated hereunder is between $32.41 and $40.00, a
fractional share of Acquiror Common Stock as
determined by a fraction the numerator of which is
$10.00 and the denominator of which is the Acquiror
Average Stock Price;
(b) if the Acquiror Average Stock Price is
between $40.01 and $42.00, .250 shares of Acquiror
Common Stock;
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(c) if the Acquiror Average Stock Price is
between $42.01 and $45.74 per share, a fractional
share of Acquiror Common Stock as determined by a
fraction the numerator of which is $10.50 and the
denominator of which is the Acquiror Average Stock
Price;
(d) if the Acquiror Average Stock Price is
$45.75 or more, .2295 shares of Acquiror Common
Stock;
(e) if the Acquiror Average Stock Price is
$32.40 or less, then the Acquiror has the option of
completing the Merger using a modification of the Per
Share Stock Distribution equal to a fractional share
of Acquiror Common Stock as determined by a fraction
the numerator of which is $10.00 and the denominator
of which is the Acquiror Average Stock Price or
terminating the Agreement pursuant to the provisions
of Section 10.01(e) of the Agreement.
(c) If subsequent to the date of this Agreement but prior
to the Effective Time, Acquiror should split or combine its common
stock, or pay a dividend or other distribution in such common stock,
then the Per Share Stock Distribution shall be appropriately adjusted
to reflect such split, combination, dividend or distribution.
(d) "Acquiror Average Stock Price" means the average
(rounded to the nearest whole cent) of the last sale price of the day
of one share of Acquiror Common Stock as reported in The Wall Street
Journal for the ten consecutive trading days ending on the fifth
business day preceding the Effective Time, or in the absence of such
report for any trading day in The Wall Street Journal, the last sale
price reported for such trading day by NASDAQ, the automated quotation
system of the National Association of Securities Dealers, Inc., or in
the absence thereof the mean of the reported closing bid and asked
quotations on such trading day as reported in The Wall Street Journal
or in the absence thereof, by NASDAQ; or in the absence thereof from
such other source upon which Acquiror and the Company shall mutually
agree.
(e) At the Effective Time, all shares of Company Common
Stock that are owned by the Company as treasury stock and all shares
of Company Common Stock that are owned directly or indirectly by
Acquiror or the Company or any of their respective wholly-owned
subsidiaries (other than shares of Company Common Stock held directly
or indirectly in trust accounts, managed accounts and the like or
otherwise held in a fiduciary capacity that are beneficially owned by
third parties (any such shares, and shares of Acquiror Common Stock
which are similarly held, whether held directly or indirectly by
Acquiror or the Company or any of their respective wholly-owned
subsidiaries, as the case may be, being referred to herein as "Trust
Account Shares"), and other than any shares of Company Common Stock
held by Acquiror or the Company or any of their respective
wholly-owned subsidiaries in respect of a debt previously contracted
(any such shares of Company Common Stock, and shares of Acquiror
Common Stock which are similarly held, whether held directly or
indirectly by Acquiror or the Company or any of their respective
wholly-owned subsidiaries, being referred to herein as "DPC Shares"))
shall be cancelled and shall cease to exist and no stock of Acquiror
or other consideration shall be delivered in exchange therefor. All
shares of Acquiror Common Stock that are owned by the Company or any
of its wholly- owned subsidiaries (other than Trust Account Shares and
DPC Shares) shall become treasury stock of Acquiror.
(f) There shall be included with each share of Acquiror
Common Stock issued in the Merger an equal number of any share
purchase rights (the "Rights") issued pursuant to the Rights
Agreement (as defined in Section 2.03 of the Agreement). All
references in this Merger Agreement to Acquiror Common Stock to be
received pursuant to the Merger should be deemed to include the
Rights.
3.02 Election Procedures.
(a) On a date at least 30 days prior to the anticipated
Closing Date or on such other date as the Company and Acquiror may
mutually agree ("Mailing Date"), the Exchange Agent (as defined below)
shall mail to each holder of record of the Company Common Stock, as of
three business days prior to the Mailing Date, an election form, a
letter of transmittal (which shall specify that delivery shall be
effected,
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and risk of loss and title to certificates previously representing the
Company Common Stock shall pass only upon delivery of such certificate
to the Exchange Agent) and other appropriate transmittal materials
("Election Form"). "Exchange Agent" means Firstar Trust Co. or such
other bank or trust company selected by Acquiror, and acceptable to
the Company, to effect the exchange of certificates. The Mailing Date
may be the date of mailing of the Proxy Statement/Prospectus, as
defined in Section 6.01 of the Agreement.
(b) An Election Form shall specify the method by which
the amount of the Per Share Cash Distribution will be calculated and
the method by which the Per Share Stock Distribution will be
calculated, and shall permit holders (or in the case of nominee record
holders, the beneficial owner through proper instructions and
documentation), except for the Reliance Savings Bank Employee Stock
Ownership Plan (the ESOP") which shall receive the Per Share Cash
Distribution in exchange for its shares of Company Common Stock, to
elect to receive (A) the Per Share Cash Distribution with respect to a
specified number of shares of Company Common Stock (the "Cash Election
Shares"), (B) the Per Share Stock Distribution with respect to a
specified number of shares of Company Common Stock (the "Stock
Election Shares"), or (C) indicate that such holder makes no election
with respect to a specified number of shares of Company Common Stock
(the "No Election Shares"). Each holder of shares of Company Common
Stock may elect to receive either the Per Share Cash Distribution or
the Per Share Stock Distribution for each share of Company Common
Stock held. However, each individual beneficial owner of shares of
Company Common Stock may only choose a combination of the Per Share
Cash Distribution and the Per Share Stock Distribution relating to all
of the shares of Company Common Stock beneficially owned by him, her
or it, if he, she or it chooses the Per Share Stock Distribution for a
sufficient number of shares to result in the issuance of at least 50
shares of Acquiror Common Stock. If the Exchange Agent determines
that the above share limit has not been complied with, the shares of
Company Common Stock to which the improper election has been made
shall be deemed No Election Shares.
(c) Any shares of Company Common Stock with respect to
which the holder thereof shall not, as of the Election Deadline (as
defined below), have made such an election by submission to the
Exchange Agent of an effective, properly completed Election Form shall
be deemed to be No Election Shares. "Election Deadline" means 4:00
p.m., Milwaukee time, on a day 30-45 days following the Mailing Date,
but which also shall be at least one business day prior to the date of
the Shareholders Meeting (as defined in Section 5.01 of the
Agreement). Acquiror shall make an Election Form available to all
persons who become holders of Company Common Stock between the date
three business days prior to the Mailing Date and the close of
business on the day prior to the Election Deadline, and the Company
will provide to the Exchange Agent in a timely manner all information
necessary to comply with this provision.
(d) Any Dissenting Shares shall be deemed Cash Election
Shares, and with respect to such shares, the holders thereof shall in
no event be deemed to hold Stock Designee Shares (defined below).
(e) Any election as between the Per Share Cash
Distribution or the Per Share Stock Distribution shall have been
properly made only if the Exchange Agent shall have received a
properly completed Election Form by the Election Deadline. An
Election Form will be properly completed only if accompanied by
certificates representing all shares of the Company Common Stock
covered thereby. An Election Form may be revoked or changed by the
person submitting such Election Form to the Exchange Agent by written
notice to the Exchange Agent, provided such notice is received by the
Exchange Agent at or prior to the Election Deadline. All Election
Forms shall be deemed revoked if the Exchange Agent is notified in
writing by Acquiror or the Company that this Agreement has been
terminated. The certificate or certificates representing the Company
Common Stock relating to any revoked Election Form shall be promptly
returned without charge to the person submitting such Election Form to
the Exchange Agent. The Exchange Agent shall have reasonable
discretion to determine when any election, modification or revocation
is received and whether any such election, modification or revocation
has been properly made.
(f) The aggregate amount of consideration, including
amounts payable in respect of Dissenting Shares and amounts paid in
lieu of fractional shares ("Consideration"), to be received by the
Company shareholders in exchange for their Company Common Stock shall
consist of cash and Acquiror Common Stock, to be determined as
follows:
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(1) the aggregate amount of Consideration that shall be
payable to Company shareholders, including the ESOP, in cash
(the "Cash Amount") shall be no greater than 40% of the
aggregate value of all of the Consideration to be issued or
paid in connection with the Merger;
(2) the total number of shares of Acquiror Common Stock
to be issued in connection with the Merger (the "Stock
Amount") shall be that number of whole shares of Acquiror
Common Stock that has an aggregate value, valuing such stock
at the Acquiror Average Stock Price for this purpose, at least
equal to 60.0%, of the aggregate value of all of the
Consideration to be issued or paid in connection with the
Merger;
(3) the calculation of the aggregate amount of
Consideration, the Cash Amount and the Stock Amount shall be
made by Acquiror. The relative percentages that the Cash
Amount (i.e. 0% to 40.0%) and the Stock Amount (i.e. 60.0% to
100%) bear to the aggregate amount of Consideration to be
issued or paid in connection with the Merger shall be
determined as follows:
(i) The aggregate value of the Cash Amount shall
be 40.0% or less of the aggregate amount of
Consideration and shall be determined by
multiplying the Per Share Cash Distribution
by the number of Cash Election Shares and No
Election Shares converted to a right to
receive the Per Share Cash Distribution;
(ii) The aggregate value of the Stock Election
Shares, valuing each such Stock Election
Share as the product of the Acquiror Average
Stock Price multiplied by the Per Share Stock
Distribution, shall be 60.0% or more of the
aggregate value of all of the Consideration
to be issued or paid in connection with the
Merger, with the Stock Amount being equal to
the number of whole shares of Acquiror Common
Stock to be issued or paid in connection with
the Merger; and
(g) Within five business days after the Effective Time,
the Exchange Agent shall effectuate the allocation among holders of
the Company Common Stock of the right to receive the Cash Election
Shares and/or the Stock Election Shares in the Merger in accordance
with the Election Form as follows:
(i) if the number of shares of Acquiror Common
Stock that would be issued upon conversion in
the Merger of the Stock Election Shares is
less than the Stock Amount, then
(A) all shares of Company Common
Stock electing Stock Election Shares
will be converted into the right to
receive the Per Share Stock
Distribution,
(B) subject to Section 3.02(d), the
Exchange Agent will select first
from among the No Election Shares,
by random selection, and then (if
necessary) from among the Cash
Election Shares, pro rata in
accordance with the number of shares
of Company Common Stock beneficially
owned by each Company shareholder
and designated as Cash Election
Shares ("Stock Designee Shares"), in
each case subject to the requirement
for issuance pursuant to Section
3.06(b) of at least 50 shares of
Acquiror Common Stock to each
recipient thereof, such that the
number of Stock Designee Shares
will, when added to the number of
Stock Election Shares, equal the
minimum Stock Amount percentage, and
the appropriate number of Stock
Designee Shares will be converted
into the right to receive the Per
Share Stock Distribution (provided,
however, that no particular holder
of Cash Election Shares will be
required to designate all or a
portion of his, her or its Cash
Election Shares as Stock Designee
Shares if such designation would
threaten satisfaction of any of the
conditions to the consummation of
the Merger set forth in Article
Seven of the Agreement), and
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(C) Cash Election Shares and the No
Election Shares not designated Stock
Designee Shares will be converted
into the right to receive the Per
Share Cash Distribution; or
(ii) if the number of shares of Acquiror Common
Stock that would be issued upon conversion of
the Stock Election Shares is equal to or
greater than the Stock Amount, then all
shares of Company Common Stock electing Stock
Election Shares will be converted into the
right to receive the Per Share Stock
Distribution and all Cash Election Shares and
No Election Shares will be converted into the
right to receive the Per Share Cash
Distribution.
(h) The random selection process to be used by the
Exchange Agent to select among the No Election Shares shall be as the
Exchange Agent deems equitable, or as may be mutually determined by
the Company and Acquiror and as shall be further described in the
Election Form. The pro rata process to be used by the Exchange Agent
to designate Stock Designee Shares in order to reach the Stock Amount
shall be based on the proportion that the number of Cash Election
Shares beneficially owned by each Company shareholder, bears to the
total number of Cash Election Shares (excluding Dissenting Shares).
(i) The extent to which elections by holders of Company
Common Stock will be accommodated will depend upon the respective
number of shares of Company Common Stock electing cash or stock (or
making no election). Accordingly, a holder of shares of Company
Common Stock who elects cash, or a combination of cash and shares of
Acquiror Common Stock, may instead receive just shares of Acquiror
Common Stock, or a combination of cash and shares of Acquiror Common
Stock, or a different combination of cash and shares of Acquiror
Common Stock. In addition, if so directed by the Acquiror, the
Exchange Agent may alter the selection and pro rata process in order
to ensure that all of the conditions to consummation of the Merger set
forth in Article Seven of the Agreement may be complied with.
3.03 Exchange Procedures.
(a) At the Effective Time, there shall be issued the
Stock Amount and the amount of cash payable in the Merger ("Exchange
Fund"). Upon completion of the allocation procedures described above,
Acquiror shall, if necessary, issue to the Exchange Agent any
additional shares of Acquiror Common Stock in exchange for cash or
issue to the Exchange Agent any additional cash in exchange for
Acquiror Common Stock.
(b) After the Effective Time, each previous holder of a
certificate that, prior to the Effective Time, represented the Company
Common Stock ("Certificate") that prior thereto surrendered or
thereafter surrenders such a Certificate to the Exchange Agent will,
upon acceptance thereof by the Exchange Agent, be entitled to a
certificate or certificates representing the number of full shares of
Acquiror Common Stock and/or the amount of cash into which the
Certificate surrendered shall have been converted pursuant to this
Agreement and, if such holder's Company Common Stock has been
converted into Acquiror Common Stock, any other distribution
theretofore declared and not yet paid with respect to the Acquiror
Common Stock issuable in the Merger, in each case without interest.
The Exchange Agent shall not be entitled to vote or exercise any
rights of ownership with respect to the shares of Acquiror Common
Stock held by it from time to time hereunder, except that it shall
receive and hold all dividends or other distributions paid or
distributed with respect to such shares for the account of the persons
entitled thereto. No dividends or other distributions payable after
the Effective Time with respect to Acquiror Common Stock shall be paid
to the holder of any unsurrendered Certificate until the holder
thereof shall duly surrender such Certificate in accordance with this
Article Three. After the surrender of a Certificate in accordance
with this Article Three, the record holder thereof shall be entitled
to receive any dividends or other distributions, with any interest
thereon, which became payable with respect to the shares of Acquiror
Common Stock represented by such Certificate after the Effective Time
but on or before the time of such surrender. No holder of an
unsurrendered Certificate shall be entitled, until the surrender of
such Certificate, to vote the shares of Acquiror Common Stock into
which his or her Company Common Stock shall have been converted.
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(c) The Exchange Agent shall accept such certificates
upon compliance with such reasonable terms and conditions as the
Exchange Agent may impose to effect an orderly exchange thereof in
accordance with customary exchange practices. Each outstanding
certificate that, prior to the Effective Time, represented Company
Common Stock shall, except as otherwise provided in this Agreement and
until duly surrendered to the Exchange Agent, be deemed to evidence
ownership of the consideration into which such Company Common Stock
shall have been converted. After the Effective Time, there shall be
no further transfer on the records of the Company of certificates
representing Company Common Stock, and if such certificates are
presented to the Company for transfer, they shall be canceled against
delivery of the consideration provided therefor in this Agreement. No
dividends declared will be remitted to any person entitled to receive
Acquiror Common Stock under this Agreement until such person
surrenders the certificate or certificates representing Company Common
Stock, at which time such dividends shall be remitted to such person,
without interest and less any taxes that may have been imposed
thereon. Neither the Exchange Agent, Acquiror nor the Company shall
be liable to any holder of Company Common Stock for any consideration
paid to a public official pursuant to applicable abandoned property,
escheat or similar laws. Acquiror and the Exchange Agent shall be
entitled to rely upon the stock transfer books of the Company to
establish the identity of those persons entitled to receive
consideration specified in this Agreement, which books shall be
conclusive with respect thereto. In the event of a dispute with
respect to ownership of any shares of Company Common Stock, Acquiror
and the Exchange Agent shall be entitled to deposit any consideration
represented thereby in escrow with an independent third party and
thereafter be relieved with respect to any claims thereto.
(d) If any certificate representing shares of Acquiror
Common Stock is to be issued in a name other than that in which the
Certificate surrendered in exchange therefor is registered, it shall
be a condition of the issuance thereof that the Certificate so
surrendered shall be properly endorsed (or accompanied by an
appropriate instrument of transfer) and otherwise in proper form for
transfer, and that the person requesting such exchange shall pay to
the Exchange Agent in advance any transfer or other taxes required by
reason of the issuance of a certificate representing shares of
Acquiror Common Stock in any name other than that of the registered
holder of the Certificate surrendered, or required for any other
reason, or shall establish to the satisfaction of the Exchange Agent
that such tax has been paid or is not payable.
(e) Any portion of the Exchange Fund that remains
unclaimed by the shareholders of the Company for six months after the
Effective Time, including dividends received pursuant to section
3.03(b) and any interest paid on the Exchange Fund, shall be remitted
back to Acquiror. Any shareholders of the Company who have not
theretofore complied with this Article Three shall thereafter look
only to Acquiror for payment for their shares of Company Common Stock.
Notwithstanding the foregoing, neither the Acquiror, the Company, the
Exchange Agent, or any other person shall be liable to any former
holder of shares of Company Common Stock for any amount properly
delivered to a public official pursuant to applicable abandoned
property, escheat or similar laws.
(f) In the event any Certificate shall have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by
the person claiming such Certificate to be lost, stolen or destroyed
and, if required by Acquiror, the posting by such person of a bond in
such amount as Acquiror may direct as indemnity against any claim that
may be made against it with respect to such Certificate, the Exchange
Agent will issue in exchange for such lost, stolen or destroyed
Certificate the shares of Acquiror Common Stock or cash and cash in
lieu of fractional shares and unpaid dividends and distributions on
Acquiror Common Stock deliverable in respect thereof pursuant to this
Agreement.
3.04 No Fractional Shares. Notwithstanding any other provision of
this Agreement, neither certificates nor scrip for fractional shares of
Acquiror Common Stock shall be issued in the Merger. Each holder of shares of
Company Common Stock who otherwise would have been entitled to a fraction of a
share of Acquiror Common Stock shall receive in lieu thereof cash (without
interest) in an amount determined by multiplying the fractional share interest
to which such holder would otherwise be entitled by the Acquiror Average Stock
Price. No such holder shall be entitled to dividends, voting rights or any
other rights in respect of any fractional share.
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3.05 Dissenting Shares.
(a) "Dissenting Shares" means any shares held by any
holder who becomes entitled to payment of the fair value of such
shares under the WBCL. Any holder of Dissenting Shares shall be
entitled to payment for such shares only to the extent permitted by
and in accordance with the provisions of the WBCL; provided, however,
that if, in accordance with the WBCL, any holder of Dissenting Shares
shall forfeit such right to payment of the fair value of such shares,
such shares shall thereupon be deemed to have been converted into and
to have become exchangeable for, as of the Effective Time, the right
to receive cash and/or Acquiror Common Stock in accordance with the
applicable provisions of this Agreement. If such holder of Dissenting
Shares shall effectively withdraw or lose (through failure to perfect
or otherwise) his or her right to such payment after the Effective
Time, such shares of Company Common Stock of such holder shall be
converted on a share by share basis into the right to receive the Per
Share Cash Distribution and/or the Per Share Stock Distribution as the
Acquiror shall determine.
(b) The Company shall give Acquiror prompt notice of any
written objections to the Merger and any written demands for the
payment of the fair value of any shares, withdrawals of such demands,
and any other instruments received by the Company pursuant to the
WBCL, and the opportunity to direct all negotiations and proceedings
with respect to such demands under the WBCL. The Company shall not
voluntarily make any payment with respect to any demands for payment
of fair value and shall not, except with the prior written consent of
Acquiror, settle or offer to settle any such demands.
3.06 Withholding Rights. Acquiror shall be entitled to deduct and
withhold from any amounts otherwise payable pursuant to this Agreement to any
holder of shares of Company Common Stock such amounts as Acquiror is required
under the Code or any provision of state, local or foreign tax law to deduct
and withhold with respect to the making of such payment. Any amounts so
withheld shall be treated for all purposes of this Agreement as having been
paid to the holder of Company Common Stock in respect of which such deduction
and withholding was made by Acquiror.
3.07 Options.
(a) The Acquiror shall, as of the Closing Date, convert the
outstanding and unexercised options granted by the Company for the purchase of
shares of Company Common Stock, whether or not the option is then exercisable
under the terms of the Reliance Bancshares, Inc. 1997 Stock Option Plan (the
"Option Plan"), into cash in an amount equal to the excess of the Per Share
Cash Distribution over the exercise price of such option, multiplied by the
number of shares subject to such option, and such cash, net of any amount that
must be withheld for federal, state or local tax purposes, shall be paid to the
holder of such option within five (5) business days of the Closing Date,
whereupon such option shall terminate; provided that any holder of outstanding
and unexercised options granted by the Company to purchase Company Common Stock
who, by reason of their employment or other status with the Acquiror or
Acquiror-Bank after the Closing Date, would be eligible to participate in the
Acquiror's stock option plan may, on or prior to the Election Deadline, notify
Acquiror as to whether such holder elects to have his or her options converted
into options to purchase shares of Acquiror Common Stock, rather than into
cash, at an exercise price as determined below:
(i) The number of shares of Acquiror Common Stock to be
subject to the converted option shall be equal to the number of shares
of Company Common Stock subject to the original option multiplied by a
fraction determined by application of Section 3.01(b)(2) provided that
any fractional shares of Acquiror Common Stock resulting from such
multiplication shall be rounded down to the nearest whole share; and
(ii) The exercise price per share of Acquiror Common Stock
under the converted option shall be equal to the exercise price per
share of Company Common Stock under the original option divided by a
fraction determined by application of Section 3.01(b)(2), provided
that such exercise price shall be rounded up to the nearest cent.
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(iii) The Acquiror agrees that a director of Reliance who
becomes a member of the Advisory Board, as defined in Section 4.08 of
the Agreement, shall be deemed an "Outside Director" under the terms
of the Acquiror's option plan for purposes of being eligible to have
any options to purchase shares of Company Common Stock which are
converted, under (i) and (ii) above, into options for the purchase of
Acquiror's Common Stock administered under the terms of Acquiror's
plan.
(b) The adjustment provided herein with respect to any options
which are "incentive stock options" (as defined in Section 422 of the Code)
shall be and is intended to be effected in a manner which is consistent with
Section 424(a) of the Code and is not intended as a modification of such option
(as defined in section 424(h)(3) of the Code). The duration and other terms of
the converted option shall be the same as the original option, except that all
references to the Company shall be deemed to be references to Acquiror.
(c) If Acquiror merges the Option Plan with its own option plan,
each converted option shall be subject to the terms, benefits, rights and
features of the Acquiror's option plan and the related agreement evidencing the
grant of such option thereunder from and after the Closing Date.
(d) All options which are issued and outstanding as of the date
hereof under the terms of the Option Plan will become fully vested and
exercisable as of the Closing Date.
(e) The Surviving Corporation may, at its option, merge the Option
Plan with its own plan or continue the Option Plan after the Effective Time
provided that such merger or continuance shall not reduce the vesting credit
earned by holders of converted options under the Option Plan prior to the
Closing Date.
3.08 Bank Merger. The Company and the Acquiror intend to take all
action necessary and appropriate to cause, including causing the entering into
of a merger agreement (the "Bank Merger Agreement"), pursuant to which the
Acquiror-Bank and the Merging Bank shall merge immediately following the Merger
or as soon as practicable thereafter with the Acquiror-Bank being the surviving
bank ("Surviving Bank") thereof pursuant to the provisions of applicable law.
At the effective time of the Bank Merger, the charter and by-laws of the
Surviving Bank shall be the articles of association and by-laws of the
Acquiror-Bank in effect immediately prior to the effective time of the Bank
Merger. At the effective time of the Bank Merger, the directors and officers
of the Surviving Bank shall be the directors and officers of the Acquiror-Bank
immediately prior to the effective time of the Bank Merger, except that,
provided the Surviving Bank can obtain all necessary regulatory approvals, one
outside director of the Merging Bank, as selected by the Board of Directors of
the Merging Bank, shall become a director of the Surviving Bank as soon as
practicable after the effective date of the Bank Merger.
ARTICLE IV
4.01 Notices. All documents, notices, requests, demands and other
communications that are required or permitted to be delivered or given under
this Plan of Merger shall be in writing and shall be deemed to have been duly
delivered or given upon the delivery or mailing thereof, as the case may be, if
delivered personally or sent by registered or certified mail, return receipt
requested, postage prepaid:
(a) if to the Company, to:
Xxxxx X. Xxxx
President and Chief Executive Officer
Reliance Bancshares, Inc.
0000 Xxxxx 00xx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
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with a copy to:
Xxxxxxxxxxx X. Xxxxxx
Xxxxxx Xxxxxx & Xxxxx
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
(b) and if to Acquiror to:
Xxxxxx X. Xxxx
President and Chief Executive Officer
St. Xxxxxxx Capital Corporation
00000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxxx 00000-0000
with a copy to:
W. Xxxxxxx Xxxxxxx
Xxxxxxx Xxxx & Friedrich
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
or to such other person or address as a party hereto shall specify hereunder.
4.02 Consummation of the Merger. Consummation of the Merger is
conditioned upon the fulfillment or waiver of the conditions precedent set
forth in Articles Seven, Eight and Nine of the Agreement.
4.03 Counterparts. This Plan of Merger may be executed in one or
more counterparts, each of which shall be deemed to be an original but all of
which together shall constitute one agreement.
4.04 Governing Law. This Plan of Merger shall be governed in all
respects, including, but not limited to, validity, interpretation, effect and
performance, by the laws of the State of Wisconsin.
4.05 Amendment. Subject to applicable law, this Plan of Merger may
be amended, modified or supplemented only by written agreement of Acquiror and
the Company, by their respective officers thereunto duly authorized, at any
time prior to the Effective Time.
4.06 Waiver. Any of the terms or conditions of this Plan of Merger
may be waived at any time by whichever of the Constituent Corporations is, or
the shareholders of which are, entitled to the benefit thereof by action taken
by the Board of Directors of such Constituent Corporation.
4.07 Termination. This Plan of Merger shall terminate
simultaneously upon the termination of the Agreement in accordance with Article
Ten thereof. There shall be no liability on the part of any of the parties
hereto (or any of their respective directors or officers) except as otherwise
provided in the Agreement.
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IN WITNESS WHEREOF, each of the Constituent Corporations have caused
this Plan of Merger to be executed on their behalf by their officers hereunto
duly authorized all as of the date first above written.
ATTEST: ST. XXXXXXX CAPITAL CORPORATION
By: By:
----------------------------- -------------------------------
Xxxxxx X. Xxxx
----------------------------- President and Chief Executive Officer
ATTEST: RELIANCE BANCSHARES,INC.
By: By:
----------------------------- -------------------------------
Xxxxx X. Xxxx
----------------------------- President and Chief Executive Officer
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