1
Exhibit 2.2
AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER
BY AND AMONG
OLD KENT FINANCIAL CORPORATION,
FIFTH THIRD BANCORP
AND
FIFTH THIRD FINANCIAL CORPORATION
------------------------
DATED AS OF JANUARY 16, 2001
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TABLE OF CONTENTS
ARTICLE I
THE MERGER
1.1. The Merger.................................................. A-7
1.2 Effective Time.............................................. A-8
1.3 Effects of the Merger....................................... A-8
1.4 Conversion of Old Kent Capital Stock........................ A-8
1.5 Fifth Third Capital Stock................................... A-9
1.6 Options..................................................... A-9
1.7 Articles of Incorporation of Surviving Corporation.......... A-10
1.8 Code of Regulations of Surviving Corporation................ A-10
1.9 Tax and Accounting Consequences............................. A-10
1.10 Board of Directors.......................................... A-10
ARTICLE II
EXCHANGE OF SHARES
2.1 Fifth Third to Make Shares Available........................ A-10
2.2 Exchange of Shares.......................................... A-10
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF OLD KENT
3.1 Corporate Organization...................................... A-12
3.2 Capitalization.............................................. A-12
3.3 Authority; No Violation..................................... A-13
3.4 Consents and Approvals...................................... A-14
3.5 Reports..................................................... A-14
3.6 Financial Statements........................................ A-15
3.7 Broker's Fees............................................... A-15
3.8 Absence of Certain Changes or Events........................ A-15
3.9 Legal Proceedings........................................... A-16
3.10 Taxes and Tax Returns....................................... A-16
3.11 Employees................................................... A-17
3.12 SEC Reports................................................. A-18
3.13 Compliance with Applicable Law.............................. A-18
3.14 Certain Contracts........................................... A-19
3.15 Agreements with Regulatory Agencies......................... A-19
3.16 Interest Rate Risk Management Instruments................... A-19
3.17 Undisclosed Liabilities..................................... A-20
3.18 Environmental Liability..................................... A-20
3.19 Intellectual Property....................................... A-20
3.20 State Takeover Laws; Old Kent Rights Agreement.............. A-20
3.21 Reorganization; Pooling of Interests........................ A-21
3.22 Opinions.................................................... A-21
3.23 Old Kent Information........................................ A-21
3.24 Loan Losses................................................. X-00
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XXXXXXX IV
REPRESENTATIONS AND WARRANTIES OF FIFTH THIRD AND MERGER SUB
4.1 Corporate Organization...................................... A-21
4.2 Capitalization.............................................. A-22
4.3 Authority, No Violation..................................... A-22
4.4 Consents and Approvals...................................... A-23
4.5 Reports..................................................... A-23
4.6 Financial Statements........................................ A-24
4.7 Broker's Fees............................................... A-24
4.8 Absence of Certain Changes or Events........................ A-24
4.9 Legal Proceedings........................................... A-24
4.10 Taxes and Tax Returns....................................... A-25
4.11 SEC Reports................................................. A-25
4.12 Compliance with Applicable Law.............................. A-25
4.13 Agreements with Regulatory Agencies......................... A-26
4.14 Interest Rate Risk Management Instruments................... A-26
4.15 Undisclosed Liabilities..................................... A-26
4.16 Environmental Liability..................................... A-26
4.17 Reorganization; Pooling of Interests........................ A-27
4.18 Fifth Third Information..................................... A-27
4.19 Loan Losses................................................. A-27
ARTICLE V
COVENANTS RELATING TO CONDUCT OF BUSINESS
5.1 Conduct of Businesses Prior to the Effective Time........... A-27
5.2 Forbearances................................................ A-27
5.3 Fifth Third Forbearances.................................... A-29
ARTICLE VI
ADDITIONAL AGREEMENTS
6.1 Regulatory Matters.......................................... A-30
6.2 Access to Information....................................... A-31
6.3 Stockholders' Approvals..................................... A-31
6.4 Legal Conditions to Merger.................................. A-31
6.5 Affiliates; Publication of Combined Financial Results....... A-31
6.6 Stock Exchange Listing...................................... A-32
6.7 Employee Benefit Plans...................................... A-32
6.8 Indemnification; Directors' and Officers' Insurance......... A-32
6.9 Additional Agreements....................................... A-33
6.10 Advice of Changes........................................... A-33
6.11 Dividends................................................... A-33
6.12 Exemption from Liability Under Section 16(b)................ A-33
6.13 Directorships............................................... A-34
6.14 Aggregate Capitalization.................................... A-34
6.15 Community Commitments....................................... A-34
6.16 Executive Benefit Trust..................................... X-00
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XXXXXXX XXX
CONDITIONS PRECEDENT
Conditions to Each Party's Obligation To Effect the
7.1 Merger...................................................... A-34
7.2 Conditions to Obligations of Fifth Third and Merger Sub..... A-35
7.3 Conditions to Obligations of Old Kent....................... A-35
ARTICLE VIII
TERMINATION AND AMENDMENT
8.1 Termination................................................. A-36
8.2 Effect of Termination....................................... A-36
8.3 Amendment................................................... A-36
8.4 Extension; Waiver........................................... A-36
ARTICLE IX
GENERAL PROVISIONS
9.1 Closing..................................................... A-37
9.2 Nonsurvival of Representations, Warranties and Agreements... A-37
9.3 Expenses.................................................... A-37
9.4 Notices..................................................... A-37
9.5 Interpretation.............................................. A-38
9.6 Counterparts................................................ A-38
9.7 Entire Agreement............................................ A-38
9.8 Governing Law............................................... A-38
9.9 Publicity................................................... A-38
9.10 Assignment; Third Party Beneficiaries....................... A-38
INDEX OF DEFINED TERMS
PAGE NO.
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Agreement................................................... A-7
Benefit Plan................................................ A-17
BHC Act..................................................... A-12
Certificate................................................. A-8
Certificates of Merger...................................... A-8
Closing..................................................... A-37
Closing Date................................................ A-37
Code........................................................ A-7
Covered Employees........................................... A-32
DPC Shares.................................................. A-8
Effective Time.............................................. A-8
ERISA....................................................... A-17
Exchange Act................................................ A-15
Exchange Agent.............................................. A-10
Exchange Fund............................................... A-10
Exchange Ratio.............................................. A-8
Federal Reserve Board....................................... A-14
FHC......................................................... A-12
Fifth Third................................................. A-7
Fifth Third Articles........................................ A-22
Fifth Third Bank Subsidiaries............................... X-00
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PAGE NO.
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Fifth Third Capital Stock................................... A-9
Fifth Third Common Stock.................................... A-8
Fifth Third Disclosure Schedule............................. A-21
Fifth Third New Preferred Stock............................. A-9
Fifth Third Preferred Stock................................. A-9
Fifth Third Regulatory Agreement............................ A-26
Fifth Third Reports......................................... A-25
Fifth Third Stock Plans..................................... A-22
Fifth Third Subsidiary...................................... A-12
Fifth Third 1999 Financial Information...................... X-00
Xxxxx Xxxxx 0000 10-K....................................... A-24
GAAP........................................................ A-10
HSR Act..................................................... A-14
Indemnified Parties......................................... A-32
Injunction.................................................. A-34
Insurance Amount............................................ A-33
Intellectual Property....................................... A-20
IRS......................................................... A-16
Joint Proxy Statement....................................... A-14
Liens....................................................... A-13
Material Adverse Effect..................................... A-12
MBCA........................................................ A-7
Merger...................................................... A-7
Merger Consideration........................................ A-7
Merger Sub.................................................. A-7
Merger Sub Articles......................................... A-22
Merger Sub Common Stock..................................... A-9
Michigan Certificate of Merger.............................. A-8
NASDAQ...................................................... A-11
OCC......................................................... A-14
OGCL........................................................ A-7
Ohio Certificate of Merger.................................. X-0
Xxx Xxxx.................................................... X-0
Xxx Xxxx Articles........................................... X-00
Xxx Xxxx Xxxx Xxxxxxxxxxxx.................................. X-00
Xxx Xxxx Benefit Plans...................................... A-17
Old Kent Bylaws............................................. X-00
Xxx Xxxx Xxxxxxx Xxxxx...................................... X-00
Xxx Xxxx Common Stock....................................... A-8
Old Kent Contract........................................... X-00
Xxx Xxxx Xxxxxxxxxx Xxxxxxxx................................ X-00
Xxx Xxxx DRIP............................................... X-00
Xxx Xxxx XXXXX Xxxxxxxxx.................................... X-00
Xxx Xxxx Insiders........................................... X-00
Xxx Xxxx Xxxxxx Xxxxxxxxx................................... X-0
Xxx Xxxx Perpetual Preferred Stock.......................... A-9
Old Kent Preferred Stock.................................... A-13
Old Kent Regulatory Agreement............................... X-00
Xxx Xxxx Xxxxxxx............................................ X-00
Xxx Xxxx Rights............................................. X-00
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XXXX XX.
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Xxx Xxxx Rights Agreement................................... X-0
Xxx Xxxx Xxxxx Xxxxx........................................ X-0
Xxx Xxxx Stockholder Rights................................. X-0
Xxx Xxxx Xxxxxxxxxx......................................... X-00
Xxx Xxxx 0000 10-K.......................................... A-15
Predecessor Plan............................................ A-17
Regulatory Agencies......................................... A-15
Requisite Regulatory Approvals.............................. A-34
SBA......................................................... A-14
SEC......................................................... A-14
Section 16 Information...................................... A-33
Securities Act.............................................. A-18
SRO......................................................... A-14
State Approvals............................................. A-14
Subsidiary.................................................. A-12
Surviving Corporation....................................... A-7
S-4......................................................... A-14
Takeover Statutes........................................... A-21
Tax(es)..................................................... A-16
Trust Account Shares........................................ X-0
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XXXXXXX XXX XXXXXXXX AGREEMENT AND PLAN OF MERGER
AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER, dated as of January 16,
2001 (including all schedules and exhibits attached hereto, this "Agreement"),
by and among OLD KENT FINANCIAL CORPORATION, a Michigan corporation ("Old
Kent"), FIFTH THIRD BANCORP, an Ohio corporation ("Fifth Third") and FIFTH THIRD
FINANCIAL CORPORATION, an Ohio corporation and a wholly-owned subsidiary of
Fifth Third ("Merger Sub").
W I T N E S S E T H:
WHEREAS, Fifth Third and Old Kent entered into an Agreement and Plan of
Merger, dated as of November 20, 2000 (the "Original Merger Agreement"), and
they now desire to amend and restate the Original Merger Agreement to provide
for the merger of Old Kent with and into Merger Sub, in accordance with Sections
1.1(b) and 8.3 of the Original Merger Agreement (it being understood that all
references herein to "the date hereof" or "the date of this Agreement" refer to
November 20, 2000, and all references to "the date of this Amended and Restated
Agreement and Plan of Merger" refer to January 16, 2001);
WHEREAS, the Boards of Directors of Old Kent, Fifth Third and Merger Sub
have determined that it is in the best interests of their respective companies
and their stockholders to consummate the strategic business combination
transaction provided for herein in which Old Kent will, subject to the terms and
conditions set forth herein, merge with and into Merger Sub (the "Merger"), so
that Merger Sub is the surviving corporation in the Merger (sometimes referred
to in such capacity as the "Surviving Corporation"); and
WHEREAS, as a condition to the execution of the Original Merger Agreement,
and simultaneously with the execution of the Original Merger Agreement, Old Kent
and Fifth Third entered into a stock option agreement (the "Old Kent Option
Agreement") in the form attached hereto as Exhibit A; and
WHEREAS, for Federal Income Tax purposes, it is intended that the Merger
shall qualify as a reorganization under the provisions of Section 368 of the
Internal Revenue Code of 1986, as amended (the "Code"), and this Agreement is
intended to be and is adopted as a plan of reorganization for purposes of
Sections 354, 361 and 368 of the Code; and
WHEREAS, the parties desire to make certain representations, warranties and
agreements in connection with the Merger and also to prescribe certain
conditions to the Merger.
NOW, THEREFORE, in consideration of the mutual covenants, representations,
warranties and agreements contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, and
intending to be legally bound hereby, the parties agree as follows:
ARTICLE I
THE MERGER
1.1 The Merger. (a) Subject to the terms and conditions of this Agreement,
in accordance with the Michigan Business Corporation Act (the "MBCA") and the
Ohio General Corporation Law (the "OGCL"), at the Effective Time, Old Kent shall
merge with and into Merger Sub. Merger Sub shall be the Surviving Corporation in
the Merger, and shall continue its corporate existence under the laws of the
State of Ohio. Upon consummation of the Merger, the separate corporate existence
of Old Kent shall terminate.
(b) Fifth Third may at any time change the method of effecting the
combination with Old Kent (including without limitation the provisions of this
Article I) if and to the extent Fifth Third deems such change to be desirable;
provided, however, that no such change shall (i) alter or change the amount or
kind of consideration to be issued to holders of the Old Kent Common Stock as
provided for in this Agreement (the "Merger Consideration"), (ii) adversely
affect the Tax treatment of the holders of Old Kent Common Stock as a result of
receiving the Merger Consideration or (iii) materially impede or delay
consummation of the transactions contemplated by this Agreement. Old Kent shall,
if requested by Fifth Third, enter into one or more amendments to this Agreement
prior to the Effective Time in order to effect any such change.
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1.2 Effective Time. The Merger shall become effective as set forth in the
certificate of merger (the "Ohio Certificate of Merger") that shall be filed
with the Secretary of State of the State of Ohio and the certificate of merger
(the "Michigan Certificate of Merger") that shall be filed with the appropriate
office of the State of Michigan on the Closing Date (together with the Ohio
Certificate of Merger, the "Certificates of Merger"). The term "Effective Time"
shall be the date and time when the Merger becomes effective as set forth in the
Certificates of Merger which shall not be later than the Closing Date.
1.3 Effects of the Merger. At and after the Effective Time, the Merger
shall have the effects set forth in Section 1701.82 of the OGCL and Section 724
of the MBCA.
1.4 Conversion of Old Kent Capital Stock. At the Effective Time, by virtue
of the Merger and without any action on the part of Fifth Third, Old Kent,
Merger Sub or the holder of any of the following securities:
(a) Subject to Section 2.2(e), each share of the common stock (the "Old
Kent Common Stock"), par value $1.00 per share, of Old Kent issued and
outstanding immediately prior to the Effective Time (together with the preferred
stock purchase rights ("Old Kent Stockholder Rights") attached thereto issued
pursuant to that certain Rights Agreement, between Old Kent and Old Kent Bank
dated as of January 20, 1997, as amended as of December 30, 1998 (the "Old Kent
Rights Agreement"), except for shares of Old Kent Common Stock owned by Old Kent
as treasury stock or owned, directly or indirectly, by Old Kent or Fifth Third
(other than shares of Old Kent 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 of Old
Kent Common Stock which are similarly held, whether held directly or indirectly
by Old Kent or Fifth Third, as the case may be, being referred to herein as
"Trust Account Shares") and other than any shares of Old Kent Common Stock held
by Old Kent or Fifth Third in respect of a debt previously contracted (any such
shares of Old Kent Common Stock which are similarly held, whether held directly
or indirectly by Old Kent or Fifth Third, being referred to herein as "DPC
Shares")), shall be converted into the right to receive 0.74 of a share (the
"Exchange Ratio") of the common stock, without par value, of Fifth Third (the
"Fifth Third Common Stock").
(b) All of the shares of Old Kent Common Stock converted into the right to
receive Fifth Third Common Stock pursuant to this Article I shall no longer be
outstanding and shall automatically be cancelled and shall cease to exist as of
the Effective Time, and each certificate previously representing any such shares
of Old Kent Common Stock (each a "Certificate") shall thereafter represent only
the right to receive (i) a certificate representing the number of whole shares
of Fifth Third Common Stock and (ii) cash in lieu of fractional shares into
which the shares of Old Kent Common Stock represented by such Certificate have
been converted pursuant to this Section 1.4 and Section 2.2(e). Certificates
previously representing shares of Old Kent Common Stock shall be exchanged for
certificates representing whole shares of Fifth Third Common Stock and cash in
lieu of fractional shares issued in consideration therefor upon the surrender of
such Certificates in accordance with Section 2.2, without any interest thereon.
If, prior to the Effective Time, the outstanding shares of Fifth Third Common
Stock or Old Kent Common Stock shall have been increased, decreased, changed
into or exchanged for a different number or kind of shares or securities as a
result of a reorganization, recapitalization, reclassification, stock dividend,
stock split, reverse stock split, or other similar change in capitalization, an
appropriate and proportionate adjustment shall be made to the Exchange Ratio.
(c) Notwithstanding anything in the Agreement to the contrary, at the
Effective Time, all shares of Old Kent Common Stock that are owned, directly or
indirectly, by Old Kent or Fifth Third (other than Trust Account Shares and DPC
Shares) shall be cancelled and shall cease to exist and no stock of Fifth Third
or other consideration shall be delivered in exchange therefor.
(d) Each share of Old Kent Series D Perpetual Preferred Stock, issued and
outstanding immediately prior to the Effective Time shall be converted,
automatically and without the requirement of any exchange of any certificate
representing such stock, into one share of perpetual preferred stock of Fifth
Third designated as Fifth Third Series D Perpetual Preferred Stock. The terms of
the Fifth Third Series D Perpetual Preferred Stock shall be substantially
identical to the terms of the Old Kent Series D Perpetual Preferred Stock,
except for such changes as may be required to give effect to the adjustment
required by Section D.5.3.E. of the certificate of designations, preferences and
rights relating thereto in respect of the Merger.
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(e) Each share of Old Kent Series E Perpetual Preferred Stock (together
with the Old Kent Series D Perpetual Preferred Stock, the "Old Kent Perpetual
Preferred Stock"), issued and outstanding immediately prior to the Effective
Time shall be converted, automatically and without the requirement of any
exchange of any certificate representing such stock, into one share of perpetual
preferred stock of Fifth Third designated as Fifth Third Series E Perpetual
Preferred Stock (together with the Fifth Third Series D Perpetual Preferred
Stock, the "Fifth Third New Preferred Stock"). The terms of the Fifth Third
Series E Perpetual Preferred Stock shall be substantially identical to the terms
of the Old Kent Series E Perpetual Preferred Stock.
(f) All of the shares of Old Kent Perpetual Preferred Stock converted into
Fifth Third New Preferred Stock pursuant to this Article I shall no longer be
outstanding and shall automatically be cancelled and shall cease to exist as of
the Effective Time, and each certificate previously representing any such shares
of Old Kent Perpetual Preferred Stock shall as of the Effective Time be deemed
to represent as of the Effective Time the number of shares of corresponding
Fifth Third New Preferred Stock into which the shares of Old Kent Perpetual
Preferred Stock represented by such preferred stock certificate have been
converted pursuant to this Section 1.4.
(g) Each share of Common Stock, par value $1.00 per share, of Merger Sub
("Merger Sub Common Stock"), issued and outstanding immediately prior to the
Effective Time, shall remain issued and outstanding and unaffected by the
Merger.
1.5 Fifth Third Capital Stock. At and after the Effective Time, each share
of Fifth Third Common Stock and each share of preferred stock, without par
value, of Fifth Third (the "Fifth Third Preferred Stock," and together with the
Fifth Third Common Stock, the "Fifth Third Capital Stock") issued and
outstanding immediately prior to the Effective Time shall remain issued and
outstanding and shall not be affected by the Merger.
1.6 Options. (a) At the Effective Time, each option granted by Old Kent to
purchase shares of Old Kent Common Stock which is outstanding and unexercised
immediately prior thereto shall cease to represent a right to acquire shares of
Old Kent Common Stock and shall be converted automatically into an option to
purchase shares of Fifth Third Common Stock in an amount and at an exercise
price determined as provided below (and otherwise subject to the terms of, as
the case may be, the Old Kent Executive Stock Option Plan of 1986, the Old Kent
Restricted Stock Plan of 1987, the Old Xxxx Xxxxx Option Incentive Plan of 1992,
the Old Kent Deferred Stock Compensation Plan, the Old Kent Executive Stock
Incentive Plan of 1999, Stock Option Plan for Non-Employee Director
Optionholders of First National Bank Corp., Incentive Stock Option Plan for
Employee Optionholders of First National Bank Corp., Old Kent Financial
Corporation Executive Stock Incentive Plan of 1997, Employee Recognition Award
Plan, Stock Incentive Plan of 1999, Stock Option Plan for Holders of Unexercised
Options Under the CFSB Bancorp, Inc. 1994 Stock Option and Incentive Plan and
the CFSB Bancorp, Inc. 1990 Stock Option Plan, Stock Option Plan for Option
holders of Pinnacle Banc Group, Inc., Stock Option Plan for Option holders of
Merchants Bancorp, Inc., Stock Option Plan for Option holders of Grand Premier
Financial, Inc., Stock Option Plan for Option holders of Home Bancorp, Executive
Stock Option Plan of 1986, Deferred Stock Incentive Plan for Employees of Guyot,
Hicks, Xxxxxxxx & Associates, Inc., the Old Kent Bank Employee Preferred
Interest Bonus Plan (GNB Realty REIT) and the Directors' Deferred Compensation
Plan in each case as amended through the date hereof (collectively, the "Old
Xxxx Xxxxx Plans"), and the agreements evidencing grants thereunder):
(i) The number of shares of Fifth Third Common Stock to be subject to
the new option shall be equal to the product of the number of shares of Old
Kent Common Stock subject to the original option and the Exchange Ratio,
provided that any fractional shares of Fifth Third Common Stock resulting
from such multiplication shall be rounded to the nearest whole share; and
(ii) The exercise price per share of Fifth Third Common Stock under
the new option shall be equal to the exercise price per share of Old Kent
Common Stock under the original option divided by the Exchange Ratio,
provided that such exercise price shall be rounded to the nearest whole
cent.
(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
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with Section 424(a) of the Code. The duration and other terms of the new option
shall be the same as the original option except that all references to Old Kent
shall be deemed to be references to Fifth Third.
(c) Fifth Third shall take all corporate action necessary to reserve for
issuance a sufficient number of shares of Fifth Third Common Stock for delivery
upon exercise of Old Xxxx Xxxxx Options, as adjusted in accordance with this
Section 1.6. As soon as practicable after the Effective Time, Fifth Third shall
file a registration statement on Form S-8 (or any successor or other appropriate
forms), with respect to the shares of Fifth Third Common Stock subject to such
options and shall use its reasonable best efforts to maintain the effectiveness
of such registration statement or registration statements (and maintain the
current status of the prospectus or prospectuses contained therein) for so long
as such options remain outstanding.
1.7 Articles of Incorporation of Surviving Corporation. At the Effective
Time, the Merger Sub Articles shall be the articles of incorporation of the
Surviving Corporation until thereafter amended in accordance with applicable
law.
1.8 Code of Regulations of Surviving Corporation. At the Effective Time,
the Merger Sub Code of Regulations shall be the Code of Regulations of the
Surviving Corporation until thereafter amended in accordance with applicable
law.
1.9 Tax and Accounting Consequences. It is intended that the Merger shall
constitute a "reorganization" within the meaning of Section 368(a) of the Code,
that this Agreement shall constitute a "plan of reorganization" for the purposes
of Sections 354, 361 and 368 of the Code and that the Merger shall be accounted
for as a "pooling of interests" under generally accepted accounting principles
("GAAP").
1.10 Board of Directors. At the Effective Time, the directors of the
Surviving Corporation shall be comprised of the directors of Merger Sub.
ARTICLE II
EXCHANGE OF SHARES
2.1 Fifth Third to Make Shares Available. At or prior to the Effective
Time, Fifth Third shall deposit, or shall cause to be deposited, with a bank or
trust company Subsidiary of Fifth Third, or another bank or trust company
reasonably acceptable to each of Old Kent and Fifth Third (the "Exchange
Agent"), for the benefit of the holders of Certificates, for exchange in
accordance with this Article II, certificates representing the shares of Fifth
Third Common Stock, and cash in lieu of any fractional shares (such cash and
certificates for shares of Fifth Third Common Stock, together with any dividends
or distributions with respect thereto, being hereinafter referred to as the
"Exchange Fund"), to be issued pursuant to Section 1.4 and paid pursuant to
Section 2.2(a) in exchange for outstanding shares of Old Kent Common Stock.
2.2 Exchange of Shares. (a) As soon as practicable after the Effective
Time, but in no event more than 10 days after the later of the Closing Date or
the date the Exchange Agent shall have received from Old Kent a substantially
complete list of the final shareholders of Old Kent as of the Effective Time,
the Exchange Agent shall mail to each holder of record of one or more
Certificates a letter of transmittal in customary form as reasonably agreed to
by the parties (which shall specify, among other things, that delivery shall be
effected, and risk of loss and title to the Certificates shall pass, only upon
delivery of the Certificates to the Exchange Agent) and instructions for use in
effecting the surrender of the Certificates in exchange for certificates
representing the shares of Fifth Third Common Stock and any cash in lieu of
fractional shares into which the shares of Old Kent Common Stock represented by
such Certificate or Certificates shall have been converted pursuant to this
Agreement. Upon proper surrender of a Certificate or Certificates for exchange
and cancellation to the Exchange Agent, together with such properly completed
letter of transmittal, duly executed, the holder of such Certificate or
Certificates shall be entitled to receive in exchange therefor, as applicable,
(i) a certificate representing that number of whole shares of Fifth Third Common
Stock to which such holder of Old Kent Common Stock shall have become entitled
pursuant to the provisions of Article I, (ii) a check representing the amount of
any cash in lieu of fractional shares which such holder has the right to receive
in respect of the Certificate or Certificates surrendered pursuant to the
provisions of this Article II,
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and (iii) a check representing the amount of any dividends or distributions then
payable pursuant to Section 2.2(b)(i) and the Certificate or Certificates so
surrendered shall forthwith be cancelled. No interest will be paid or accrued on
any cash in lieu of fractional shares or on any unpaid dividends and
distributions payable to holders of Certificates.
(b) No dividends or other distributions declared with respect to Fifth
Third Common Stock shall be paid to the holder of any unsurrendered Certificate
until the holder thereof shall surrender such Certificate in accordance with
this Article II. After the surrender of a Certificate in accordance with this
Article II, the record holder thereof shall be entitled to receive (i) the
amount of dividends or other distributions with a record date after the
Effective Time theretofore paid, without any interest thereon, which theretofore
had become payable and (ii), at the appropriate payment date, the amount of
dividends or other distributions with a record date after the Effective Time but
prior to surrender and a payment date subsequent to surrender, with respect to
shares of Fifth Third Common Stock represented by such Certificate.
(c) If any certificate representing shares of Fifth Third Common Stock is
to be issued in a name other than that in which the Certificate or Certificates
surrendered in exchange therefor is or are registered, it shall be a condition
of the issuance thereof that the Certificate or Certificates 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 Fifth Third Common Stock in any name other than that of the registered
holder of the Certificate or Certificates 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.
(d) After the Effective Time, there shall be no transfers on the stock
transfer books of Old Kent of the shares of Old Kent Capital Stock that were
issued and outstanding immediately prior to the Effective Time other than to
settle transfers of Old Kent Common Stock that occurred prior to the Effective
Time and otherwise as necessary to prepare a list of the final shareholders of
Old Kent. If, after the Effective Time, Certificates representing such shares
are presented for transfer to the Exchange Agent, they shall be cancelled and
exchanged for certificates representing shares of Fifth Third Common Stock as
provided in this Article II.
(e) Notwithstanding anything to the contrary contained herein, no
certificates or scrip representing fractional shares of Fifth Third Common Stock
shall be issued upon the surrender for exchange of Certificates, no dividend or
distribution with respect to Fifth Third Common Stock shall be payable on or
with respect to any fractional share, and such fractional share interests shall
not entitle the owner thereof to vote or to any other rights of a stockholder of
Fifth Third. In lieu of the issuance of any such fractional share, Fifth Third
shall pay to each former stockholder of Old Kent who otherwise would be entitled
to receive such fractional share an amount in cash determined by multiplying (i)
the average of the closing-sale prices of Fifth Third Common Stock on the NASDAQ
National Market (the "NASDAQ") as reported by The Wall Street Journal for the
five trading days immediately preceding the Closing Date by (ii) the fraction of
a share (rounded to the nearest thousandth when expressed in decimal form) of
Fifth Third Common Stock which such holder would otherwise be entitled to
receive pursuant to Section 1.4.
(f) Any portion of the Exchange Fund that remains unclaimed by the
stockholders of Old Kent for 12 months after the Effective Time shall be paid to
Fifth Third. Any former stockholders of Old Kent who have not theretofore
complied with this Article II shall thereafter look only to Fifth Third for
payment of the shares of Fifth Third Common Stock, cash in lieu of any
fractional shares and any unpaid dividends and distributions on the Fifth Third
Common Stock deliverable in respect of each share of Old Kent Common Stock, as
the case may be, such stockholder holds as determined pursuant to this
Agreement, in each case, without any interest thereon. Notwithstanding the
foregoing, none of Fifth Third, Old Kent, the Exchange Agent or any other person
shall be liable to any former holder of shares of Old Kent Common Stock for any
amount delivered in good faith to a public official pursuant to applicable
abandoned property, escheat or similar laws.
(g) 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 reasonably required
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by Fifth Third, the posting by such person of a bond in such amount as Fifth
Third may determine is reasonably necessary 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
Fifth Third Common Stock and any cash in lieu of fractional shares deliverable
in respect thereof pursuant to this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF OLD KENT
Except as disclosed in (i) the Old Kent disclosure schedule delivered to
Fifth Third prior to the execution of this Agreement (the "Old Kent Disclosure
Schedule") or (ii) the Old Kent Reports filed prior to the date hereof, Old Kent
hereby represents and warrants to Fifth Third as follows:
3.1 Corporate Organization. (a) Old Kent is a corporation duly organized,
validly existing and in good standing under the laws of the State of Michigan.
Old Kent has the corporate power and authority to own or lease all of its
properties and assets and to carry on its business as it is now being conducted,
and is duly licensed or qualified to do business in each jurisdiction in which
the nature of the business conducted by it or the character or location of the
properties and assets owned or leased by it makes such licensing or
qualification necessary, except where the failure to be so licensed or qualified
would not, either individually or in the aggregate, have a Material Adverse
Effect on Old Kent. As used in this Agreement, the term "Material Adverse
Effect" means, with respect to Fifth Third, Old Kent or the Surviving
Corporation, as the case may be, a material adverse effect on (i) the business,
results of operations or financial condition of such party and its Subsidiaries
taken as a whole or (ii) the ability of such party to timely consummate the
transactions contemplated hereby; provided, however, that Material Adverse
Effect shall not be deemed to include effects to the extent resulting from (a)
changes in generally accepted accounting principles or regulatory accounting
requirements applicable to banks or savings associations and their holding
companies generally, (b) actions or omissions of Fifth Third or Old Kent taken
with the prior written consent of the other in contemplation of the transactions
contemplated hereby and (c) changes in general economic conditions affecting
banks or their holding companies generally.
(b) Old Kent is duly registered as a bank holding company under the Bank
Holding Company Act of 1956, as amended (the "BHC Act"). True and complete
copies of the Restated Articles of Incorporation of Old Kent (the "Old Kent
Articles") and the Bylaws of Old Kent (the "Old Kent Bylaws") have previously
been made available by Old Kent to Fifth Third. Old Kent was certified as a
"financial holding company" (an "FHC") within the meaning of Section 2(p) of the
BHC Act, and remains a certified FHC on the date hereof.
(c) Each of Old Kent's Subsidiaries (i) is duly organized and validly
existing under the laws of its jurisdiction of organization, (ii) is duly
qualified to do business and in good standing in all jurisdictions (whether
federal, state, local or foreign) where its ownership or leasing of property or
the conduct of its business requires it to be so qualified and in which the
failure to be so qualified would have a Material Adverse Effect on Old Kent and
(iii) has all requisite corporate power and authority to own or lease its
properties and assets and to carry on its business as now conducted. As used in
this Agreement, the word "Subsidiary" when used with respect to any party, means
any bank, corporation, partnership, limited liability company, or other
organization, whether incorporated or unincorporated, which is consolidated with
such party for financial reporting purposes, and the words "Old Kent Subsidiary"
and "Fifth Third Subsidiary" shall mean any direct or indirect Subsidiary of Old
Kent or Fifth Third, respectively.
(d) Section 3.1(d) of the Old Kent Disclosure Schedule sets forth the names
of each of the entities in which Old Kent holds, in the aggregate, at least 5%
of the issued and outstanding shares of capital stock or voting power.
3.2 Capitalization. (a) The authorized capital stock of Old Kent consists
of (i) 300,000,000 shares of Old Kent Common Stock, of which, as of September
30, 2000, 137,029,000 shares were issued and outstanding and no shares were held
in treasury, and (ii) 25,000,000 shares of preferred stock, without par
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value (the "Old Kent Preferred Stock," and, together with the Old Kent Common
Stock, the "Old Kent Capital Stock"), of which, as of September 30, 2000,
3,000,000 shares were designated as Old Kent Series A Preferred Stock and no
shares were issued or outstanding, 500,000 shares were designated as Series B
Preferred Stock and no shares were issued or outstanding, 1,000,000 shares were
designated as Series C Preferred Stock and no shares were issued or outstanding,
7,250 shares were designated, issued and outstanding as Old Kent Series D
Perpetual Preferred Stock and 2,000 shares were designated, issued and
outstanding as Old Kent Series E Perpetual Preferred Stock . All of the issued
and outstanding shares of Old Kent Common Stock have been duly authorized and
validly issued and are fully paid, nonassessable and free of preemptive rights,
with no personal liability attaching to the ownership thereof. As of the date of
this Agreement, except as described in this Section 3.2(a) and except pursuant
to the terms of (i) the Old Kent Option Agreement, (ii) options issued pursuant
to the Old Xxxx Xxxxx Plans and (iii) the Old Kent Rights Agreement, Old Kent
does not have and is not bound by any outstanding subscriptions, options,
warrants, calls, commitments or agreements of any character calling for the
purchase or issuance of any shares of Old Kent Capital Stock or any other equity
securities of Old Kent or any securities representing the right to purchase or
otherwise receive any shares of Old Kent Capital Stock (collectively, including
the items contemplated by clauses (i) through (iii) of this sentence, the "Old
Kent Rights"). As of November 10, 2000, no shares of Old Kent Capital Stock were
reserved for issuance, except for 525,000 shares of Old Kent Common Stock
reserved for issuance in connection with OK Invest Direct (the "Old Kent DRIP"),
8,080,839 shares of common stock reserved for issuance in connection with the
Old Kent Directors' Deferred Compensation Plan and upon the exercise of stock
options pursuant to the Old Xxxx Xxxxx Plans and in respect of the employee and
director savings, compensation and deferred compensation plans described in
Section 3.11(a) of the Old Kent Disclosure Schedule, 1,000,000 shares of Series
C Preferred Stock of Old Kent, were reserved for issuance in connection with the
Old Kent Rights Agreement and 417,000 shares of Old Kent Common Stock were
reserved for issuance in connection with the conversion of the Old Kent Series D
Perpetual Preferred Stock. Since November 10, 2000, Old Kent has not issued any
shares of its capital stock or any securities convertible into or exercisable
for any shares of its capital stock, other than as permitted by Section 5.2(b).
Old Kent has previously provided Fifth Third with a list of the aggregate number
of options outstanding under the Old Xxxx Xxxxx Plans as of September 30, 2000
and the weighted average exercise price for such options.
(b) Old Kent owns, directly or indirectly, all of the issued and
outstanding shares of capital stock or other equity ownership interests of each
of Old Kent's Subsidiaries, free and clear of any material liens, pledges,
charges and security interests and similar encumbrances ("Liens"), and all of
such shares or equity ownership interests are duly authorized and validly issued
and are fully paid, nonassessable and free of preemptive rights, with no
personal liability attaching to the ownership thereof. No Old Kent Subsidiary
has or is bound by any outstanding subscriptions, options, warrants, calls,
commitments or agreements of any character calling for the purchase or issuance
of any shares of capital stock or any other equity security of such Subsidiary
or any securities representing the right to purchase or otherwise receive any
shares of capital stock or any other equity security of such Subsidiary. Section
3.2(b) of the Old Kent Disclosure Schedule sets forth a list of the material
investments of Old Kent in corporations, joint ventures, partnerships, limited
liability companies and other entities other than its Subsidiaries.
3.3 Authority; No Violation. (a) Old Kent has full corporate power and
authority to execute and deliver this Agreement and the Old Kent Option
Agreement and to consummate the transactions contemplated hereby and thereby.
The execution and delivery of this Agreement and the Old Kent Option Agreement
and the consummation of the transactions contemplated hereby and thereby have
been duly and validly approved by the Board of Directors of Old Kent. The Board
of Directors of Old Kent has determined that this Agreement and the transactions
contemplated hereby are in the best interests of Old Kent and its stockholders
and has directed that this Agreement and the transactions contemplated hereby be
submitted to Old Kent's stockholders for adoption at a duly held meeting of such
stockholders and, except for the approval of this Agreement and the transactions
contemplated hereby by the affirmative vote of the holders of a majority of the
outstanding shares of Old Kent Common Stock voted at such meeting, no other
corporate proceedings on the part of Old Kent are necessary to approve this
Agreement or the Old Kent Option Agreement or to consummate the transactions
contemplated hereby or thereby. This Agreement and the Old Kent Option
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Agreement have been duly and validly executed and delivered by Old Kent and
(assuming due authorization, execution and delivery by Fifth Third) constitute
valid and binding obligations of Old Kent, enforceable against Old Kent in
accordance with its terms (except as may be limited by bankruptcy, insolvency,
moratorium, reorganization or similar laws affecting the rights of creditors
generally and the availability of equitable remedies).
(b) Neither the execution and delivery of this Agreement or the Old Kent
Option Agreement by Old Kent nor the consummation by Old Kent of the
transactions contemplated hereby or thereby, nor compliance by Old Kent with any
of the terms or provisions hereof or thereof, will (i) violate any provision of
the Old Kent Articles or the Old Kent Bylaws or (ii) assuming that the consents
and approvals referred to in Section 3.4 are duly obtained, (x) violate any
statute, code, ordinance, rule, regulation, judgment, order, writ, decree or
injunction applicable to Old Kent, any of its Subsidiaries or any of their
respective properties or assets or (y) violate, conflict with, result in a
breach of any provision of or the loss of any benefit under, constitute a
default (or an event which, with notice or lapse of time, or both, would
constitute a default) under, result in the termination of or a right of
termination or cancellation under, accelerate the performance required by, or
result in the creation of any Lien upon any of the respective properties or
assets of Old Kent, any of its Subsidiaries under, any of the terms, conditions
or provisions of any note, bond, mortgage, indenture, deed of trust, license,
lease, agreement or other instrument or obligation to which Old Kent or any of
its Subsidiaries is a party, or by which they or any of their respective
properties or assets may be bound or affected, except (in the case of clause (y)
above) for such violations, conflicts, breaches or defaults which, either
individually or in the aggregate, will not have a Material Adverse Effect on Old
Kent.
3.4 Consents and Approvals. Except for (i) the filing of applications and
notices, as applicable, with the Board of Governors of the Federal Reserve
System (the "Federal Reserve Board") under the BHC Act and the Federal Reserve
Act, as amended, and approval of such applications and notices, (ii) the filing
of any required applications or notices with any state agencies and approval of
such applications and notices (the "State Approvals"), (iii) the filing with the
Securities and Exchange Commission (the "SEC") of a proxy statement in
definitive form relating to the meetings of each of Old Kent's and Fifth Third's
stockholders to be held in connection with this Agreement and the transactions
contemplated hereby (the "Joint Proxy Statement"), and of the registration
statement on Form S-4 (the "S-4") in which the Joint Proxy Statement will be
included as a prospectus, (iv) the filing of the Ohio Certificate of Merger with
the Secretary of State of the State of Ohio pursuant to the OGCL and the filing
of the Michigan Certificate of Merger with the appropriate office of the State
of Michigan pursuant to the MBCA, (v) any notices to or filings with the Small
Business Administration (the "SBA"), (vi) any notices or filings under the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR
Act"), (vii) any consents, authorizations, approvals, filings or exemptions in
connection with compliance with the applicable provisions of federal and state
securities laws relating to the regulation of broker-dealers, investment
advisers or transfer agents, and federal commodities laws relating to the
regulation of futures commission merchants and the rules and regulations
thereunder and of any applicable industry self-regulatory organization ("SRO"),
and the rules of the NASDAQ, or which are required under consumer finance,
mortgage banking and other similar laws, (viii) such filings and approvals as
are required to be made or obtained under the securities or "Blue Sky" laws of
various states in connection with the issuance of the shares of Fifth Third
Common Stock pursuant to this Agreement, (ix) such filings and approvals as are
required to be made with or obtained from the Office of the Comptroller of the
Currency (the "OCC") and (x) the approval of this Agreement by the requisite
vote of stockholders of Old Kent, no consents or approvals of or filings or
registrations with any court, administrative agency or commission or other
governmental authority or instrumentality (each a "Governmental Entity") are
necessary in connection with (A) the execution and delivery by Old Kent of this
Agreement and the Old Kent Option Agreement and (B) the consummation by Old Kent
of the Merger and the other transactions contemplated hereby and by the Old Kent
Option Agreement.
3.5 Reports. Old Kent and each of its Subsidiaries have timely filed all
reports, registrations and statements, together with any amendments required to
be made with respect thereto, that they were required to file since January 1,
1997 with (i) the Federal Reserve Board, (ii) the Federal Deposit Insurance
Corporation, (iii) any state regulatory authority, (iv) the SEC, (v) any foreign
regulatory authority and
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(vi) any SRO (collectively, "Regulatory Agencies"), and all other reports and
statements required to be filed by them since January 1, 1997, including,
without limitation, any report or statement required to be filed pursuant to the
laws, rules or regulations of the United States, any state, any foreign entity,
or any Regulatory Agency, and have paid all fees and assessments due and payable
in connection therewith, except where the failure to file such report,
registration or statement or to pay such fees and assessments, either
individually or in the aggregate, will not have a Material Adverse Effect on Old
Kent. Except for normal examinations conducted by a Regulatory Agency in the
ordinary course of the business of Old Kent and its Subsidiaries, no Regulatory
Agency has initiated or has pending any proceeding or, to the best knowledge of
Old Kent, investigation into the business or operations of Old Kent or any of
its Subsidiaries since January 1, 1997, except where such proceedings or
investigation will not, either individually or in the aggregate, have a Material
Adverse Effect on Old Kent. There (i) is no unresolved violation, criticism, or
exception by any Regulatory Agency with respect to any report or statement
relating to any examinations or inspections of Old Kent or any of its
Subsidiaries and (ii) has been no formal or informal inquiries by, or
disagreements or disputes with, any Regulatory Agency with respect to the
business, operations policies or procedures of Old Kent since January 1, 1997,
which, in the reasonable judgment of Old Kent, will, either individually or in
the aggregate, have a Material Adverse Effect on Old Kent.
3.6 Financial Statements. Old Kent has previously made available to Fifth
Third copies of (i) the consolidated balance sheet of Old Kent and its
Subsidiaries as of December 31, for the fiscal years 1998 and 1999, and the
related consolidated statements of income, changes in shareholders' equity and
cash flows for the fiscal years 1997 through 1999, inclusive, as reported in Old
Kent's Annual Report on Form 10-K for the fiscal year ended December 31, 1999
(the "Old Kent 1999 10-K") filed with the SEC under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), accompanied by the audit report of
Xxxxxx Xxxxxxxx LLP, independent public accountants with respect to Old Kent and
(ii) the unaudited consolidated balance sheet of Old Kent and its Subsidiaries
as of September 30, 1999 and 2000, and the related consolidated statements of
income, changes in shareholders' equity and cash flows of the nine month periods
then ended, as reported in Old Kent's Quarterly Report on Form 10-Q for the
fiscal period ended September 30, 2000. The December 31, 1999 consolidated
balance sheet of Old Kent (including the related notes, where applicable) fairly
presents in all material respects the consolidated financial position of Old
Kent and its Subsidiaries as of the date thereof, and the other financial
statements referred to in this Section 3.6 (including the related notes, where
applicable) fairly present in all material respects the results of the
consolidated operations and changes in stockholders' equity and consolidated
financial position of Old Kent and its Subsidiaries for the respective fiscal
periods or as of the respective dates therein set forth, subject to normal
year-end audit adjustments in amounts consistent with past experience in the
case of unaudited statements; each of such statements (including the related
notes, where applicable) complies in all material respects with applicable
accounting requirements and with the published rules and regulations of the SEC
with respect thereto; and each of such statements (including the related notes,
where applicable) has been prepared in all material respects in accordance with
GAAP consistently applied during the periods involved, except, in each case, as
indicated in such statements or in the notes thereto. The books and records of
Old Kent and its Subsidiaries have been, and are being, maintained in all
material respects in accordance with GAAP and any other applicable legal and
accounting requirements and reflect only actual transactions.
3.7 Broker's Fees. Neither Old Kent nor any Old Kent Subsidiary nor any of
their respective officers or directors has employed any broker or finder or
incurred any liability for any broker's fees, commissions or finder's fees other
than fees payable to Xxxxxxx Xxxxx & Co. in connection with the Merger or
related transactions contemplated by this Agreement.
3.8 Absence of Certain Changes or Events. (a) Since December 31, 1999, no
event or events have occurred that have had, either individually or in the
aggregate, a Material Adverse Effect on Old Kent.
(b) Since December 31, 1999 through and including the date hereof, Old Kent
and its Subsidiaries have carried on their respective businesses in all material
respects in the ordinary course.
(c) Since December 31, 1999, neither Old Kent nor any of its Subsidiaries
has (i) except for normal increases for employees (other than officers subject
to the reporting requirements of Section 16(a) of the
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Xxxxxxxx Xxx) made in the ordinary course of business consistent with past
practice or as required by applicable law, increased the wages, salaries,
compensation, pension, or other fringe benefits or perquisites payable to any
executive officer, employee, or director from the amount thereof in effect as of
December 31, 1999, granted any severance or termination pay, entered into any
contract to make or grant any severance or termination pay, or paid any bonus
other than the customary year-end bonuses for fiscal 2000 and 1999 in amounts
consistent with past practice, (ii) granted any stock appreciation rights or
granted any rights to acquire any shares of its capital stock to any executive
officer, director or employee other than grants to employees (other than
officers subject to the reporting requirements of Section 16(a) of the Exchange
Act) made in the ordinary course of business consistent with past practice under
the Old Xxxx Xxxxx Plans and except as permitted by Section 5.2(b)(iii), or
(iii) suffered any strike, work stoppage, slow-down, or other labor disturbance.
3.9 Legal Proceedings. (a) Neither Old Kent nor any of its Subsidiaries is
a party to any, and there are no pending or, to the best of Old Kent's
knowledge, threatened, legal, administrative, arbitral or other proceedings,
claims, actions or governmental or regulatory investigations of any nature
against Old Kent or any of its Subsidiaries or challenging the validity or
propriety of the transactions contemplated by this Agreement or the Old Kent
Option Agreement as to which, in any such case, there is a reasonable
probability of an adverse determination and which, if adversely determined,
will, either individually or in the aggregate, have a Material Adverse Effect on
Old Kent.
(b) There is no Injunction, judgment, or regulatory restriction (other than
those of general application that apply to similarly situated bank holding
companies or their Subsidiaries) imposed upon Old Kent, any of its Subsidiaries
or the assets of Old Kent or any of its Subsidiaries that has had, or will have,
either individually or in the aggregate, a Material Adverse Effect on Old Kent
or the Surviving Corporation.
3.10 Taxes and Tax Returns. (a) Each of Old Kent and its Subsidiaries has
duly filed all federal, state, foreign and local information returns and Tax
returns required to be filed by it on or prior to the date hereof (all such
returns being accurate and complete in all material respects) and has duly paid
or made provision for the payment of all Taxes and other governmental charges
which have been incurred or are due or claimed to be due from it by federal,
state, foreign or local taxing authorities (including, without limitation, if
and to the extent applicable, those due in respect of its properties, income,
business, capital stock, deposits, franchises, licenses, sales and payrolls)
other than (i) Taxes or other government charges which are not yet delinquent or
are being contested in good faith, have not been finally determined and have
been adequately reserved against in accordance with GAAP or (ii) information
returns, Tax returns, Taxes or other governmental charges as to which the
failure to file, pay or make provision for will not have, either individually or
in the aggregate, a Material Adverse Effect on Old Kent. The federal income Tax
returns of Old Kent and its Subsidiaries have been examined by the Internal
Revenue Service (the "IRS") for all years from 1990 to and including 1995 and
any liability with respect thereto has been satisfied or any liability with
respect to deficiencies asserted as a result of such examination is covered by
adequate reserves. There are no material disputes pending, or claims asserted,
for Taxes or assessments upon Old Kent or any of its Subsidiaries for which Old
Kent does not have adequate reserves maintained in accordance with GAAP. Neither
Old Kent nor any of its Subsidiaries is a party to or is bound by any Tax
sharing, allocation or indemnification agreement or arrangement (other than such
an agreement or arrangement exclusively between or among Old Kent and its
Subsidiaries). Within the past five years, neither Old Kent nor any of its
Subsidiaries has been a "distributing corporation" or a "controlled corporation"
in a distribution intended to qualify under Section 355(a) of the Code.
(b) As used in this Agreement, the term "Tax" or "Taxes" means (i) all
federal, state, local, and foreign income, excise, gross receipts, gross income,
and valorem, profits, gains, property, capital, sales, transfer, use, payroll,
employment, severance, withholding, duties, intangibles, franchise, backup
withholding, and other taxes, charges, levies or like assessments together with
all penalties and additions to tax and interest thereon and (ii) any liability
for Taxes described in clause (i) under Treasury Regulation Section 1.1502-6 (or
any similar provision of state, local or foreign law).
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(c) No disallowance of a deduction under Section 162(m) of the Code for
employee remuneration of any amount paid or payable by Old Kent or any of its
Subsidiaries under any contract, plan, program, arrangement or understanding
would be reasonably likely to have, individually or in the aggregate, a Material
Adverse Effect on Old Kent.
3.11 Employees. (a) The Old Kent Disclosure Schedule sets forth a true and
complete list of each material employee or director benefit or compensation
plan, arrangement or agreement, and any material bonus, incentive, deferred
compensation, vacation, stock purchase, stock option, severance, employment,
change of control or fringe benefit plan, program or agreement that is
maintained, or contributed to, presently or at any time within the last four (4)
years (the "Old Kent Benefit Plans") by Old Kent, any of its Subsidiaries or by
any trade or business, whether or not incorporated (a "Old Kent ERISA
Affiliate"), all of which together with Old Kent would be deemed a "single
employer" within the meaning of Section 4001 of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"). The term "Benefit Plan" for all
purposes of this Agreement shall include each Predecessor Plan (as herein
defined). For purposes hereof, "Predecessor Plan" shall mean any plan, program,
policy, practice, arrangement, agreement or system as otherwise described in
Section 3.12(a) which was maintained, contributed to or resulted in liability to
any predecessor employer of Company or any of the Company Subsidiaries since
January 1, 1997. For purposes hereof, "predecessor employer" shall mean any
employer, entity or business operation acquired by Company or any of the Company
Subsidiaries in any type of acquisition (including, without limitation, mergers,
stock acquisitions and asset acquisitions).
(b) Old Kent has heretofore made available to Fifth Third true and complete
copies of each of the Old Kent Benefit Plans and certain related documents,
including, but not limited to, (i) the actuarial report for such Old Kent
Benefit Plan (if applicable) for each of the last two years and (ii) the most
recent determination letter from the IRS (if applicable) for such Old Kent
Benefit Plan.
(c) Except for such noncompliance as would not have, and would not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect on Old Kent, (i) each of the Old Kent Benefit Plans has been
operated and administered in all material respects in compliance with applicable
laws, including, but not limited to, ERISA and the Code, (ii) each of the Old
Kent Benefit Plans intended to be "qualified" within the meaning of Section 401
(a) of the Code is so qualified, and there are no existing circumstances or any
events that have occurred that will adversely affect the qualified status of any
such Old Kent Benefit Plan, and has received an IRS determination letter which
determined that such Qualified Benefit Plan (as amended by any and all
amendments) satisfies the requirements of Section 401(a) of the Code, as amended
by all the laws referred to in Section 1 of Revenue Procedure 93-39, such
determination letter has not been revoked or threatened to be revoked by the
IRS, and the scope of such determination letter is complete and does not exclude
consideration of any of the requirements or matters referred to in Sections 4.02
through 4.04 of Revenue Procedure 93-39 (iii) with respect to each Old Kent
Benefit Plan that is subject to Title IV of ERISA, the present value (as defined
under Section 3(26) of ERISA) of accumulated benefit obligations under such Old
Kent Benefit Plan, based upon the actuarial assumptions used for funding
purposes in the most recent actuarial report prepared by such Old Kent Benefit
Plan's actuary with respect to such Old Kent Benefit Plan, did not, as of its
latest valuation date, exceed the then current value (as defined under Section
3(26) of ERISA) of the assets of such Old Kent Benefit Plan allocable to such
accrued benefits, (iv) no Old Kent Benefit Plan provides benefits coverage,
including, without limitation, death or medical benefits coverage (whether or
not insured), with respect to current or former employees or directors of Old
Kent or its Subsidiaries beyond their retirement or other termination of
service, other than (A) coverage mandated by applicable law, (B) death benefits
or retirement benefits under any "employee pension plan" (as such term is
defined in Section 3(2) of ERISA), (C) deferred compensation benefits accrued as
liabilities on the books of Old Kent or its Subsidiaries, (D) benefits the full
cost of which is borne by the current or former employee or director (or his
beneficiary), (E) coverage through the last day of the calendar month in which
retirement or other termination of service occurs, or (F) medical expense
reimbursement accounts, (v) no liability under Title IV of ERISA has been
incurred by Old Kent, its Subsidiaries or any Old Kent ERISA Affiliate that has
not been satisfied in full, and no condition exists that presents a material
risk to Old Kent, its Subsidiaries or any Old Kent ERISA Affiliate of incurring
a liability
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thereunder, (vi) no Old Kent Benefit Plan is a "multiemployer pension plan" (as
such term is defined in Section 3(37) of ERISA), (vii) none of Old Kent, its
Subsidiaries or any other person, including any fiduciary, has engaged in a
transaction in connection with which Old Kent, its Subsidiaries or any Old Kent
Benefit Plan will be subject to either a material civil penalty assessed
pursuant to Section 409 or 502(i) of ERISA or a material Tax imposed pursuant to
Section 4975 or 4976 of the Code, (viii) to the best knowledge of Old Kent there
are no pending, threatened or anticipated claims (other than routine claims for
benefits) by, on behalf of or against any of the Old Kent Benefit Plans or any
trusts related thereto that will have, either individually or in the aggregate,
a Material Adverse Effect on Old Kent, (x) no employee, former employee, plan
participant or any other party (other than Company) has any entitlement (under
the terms of any plan document or otherwise) to any surplus assets in any
defined benefit plan as defined in Section 414(j) of the Code and (xi) Company
has all power and authority necessary to amend or terminate each Benefit Plan
without incurring any penalty or liability provided that, in the case of an
employee pension benefit plan (as defined in section 3(2) of ERISA), benefits
accrued as of the date of amendment or termination are not reduced.
(d) Neither the execution and delivery of this Agreement nor the
consummation of the transactions contemplated hereby will (either alone or in
conjunction with any other event) (i) result in any payment (including, without
limitation, severance, unemployment compensation, "excess parachute payment"
(within the meaning of Section 280G of the Code), forgiveness of indebtedness or
otherwise) becoming due to any director or any employee of Old Kent or any of
its affiliates from Old Kent or any of its affiliates under any Old Kent Benefit
Plan or otherwise, (ii) increase any benefits otherwise payable under any Old
Kent Benefit Plan or (iii) result in any acceleration of the time of payment or
vesting of any such benefits.
3.12 SEC Reports. Old Kent has previously made available to Fifth Third an
accurate and complete copy of each (a) final registration statement, prospectus,
report, schedule and definitive proxy statement filed since January 1, 1997 by
Old Kent with the SEC pursuant to the Securities Act of 1933, as amended (the
"Securities Act"), or the Exchange Act (the "Old Kent Reports") and prior to the
date hereof and (b) communication mailed by Old Kent to its stockholders since
January 1, 1997 and prior to the date hereof, and no such Old Kent Report or
communication, as of the date thereof, contained any untrue statement of a
material fact or omitted to state any material fact required to be stated
therein or necessary in order to make the statements therein, in light of the
circumstances in which they were made, not misleading, except that information
as of a later date (but before the date hereof) shall be deemed to modify
information as of an earlier date. Since January 1, 1997, as of their respective
dates, all Old Kent Reports filed under the Securities Act and the Exchange Act
complied in all material respects with the published rules and regulations of
the SEC with respect thereto.
3.13 Compliance with Applicable Law. (a) Old Kent and each of its
Subsidiaries hold all material licenses, franchises, permits and authorizations
necessary for the lawful conduct of their respective businesses under and
pursuant to each, and have complied in all material respects with and are not in
default in any material respect under any, applicable law, statute, order, rule,
regulation, policy and/or guideline of any Governmental Entity relating to Old
Kent or any of its Subsidiaries, except where the failure to hold such license,
franchise, permit or authorization or such noncompliance or default will not,
either individually or in the aggregate, have a Material Adverse Effect on Old
Kent.
(b) Except as will not have, either individually or in the aggregate, a
Material Adverse Effect on Old Kent, Old Kent and each Old Kent Subsidiary have
properly administered all accounts for which it acts as a fiduciary, including
accounts for which it serves as a trustee, agent, custodian, personal
representative, guardian, conservator or investment advisor, in accordance with
the terms of the governing documents, applicable state and federal law and
regulation and common law. None of Old Kent, any Old Kent Subsidiary, or any
director, officer or employee of Old Kent or of any Old Kent Subsidiary, has
committed any breach of trust with respect to any such fiduciary account that
will have a Material Adverse Effect on Old Kent, and the accountings for each
such fiduciary account are true and correct in all material respects and
accurately reflect the assets of such fiduciary account.
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3.14 Certain Contracts. (a) Neither Old Kent nor any of its Subsidiaries is
a party to or bound by any contract, arrangement, commitment or understanding
(whether written or oral) (i) with respect to the employment of any directors,
officers or employees, other than in the ordinary course of business consistent
with past practice, (ii) which, upon the consummation or stockholder approval of
the transactions contemplated by this Agreement will (either alone or upon the
occurrence of any additional acts or events) result in any payment (whether of
severance pay or otherwise) becoming due from Fifth Third, Old Kent, the
Surviving Corporation, or any of their respective Subsidiaries to any officer or
employee thereof, (iii) which is a "material contract" (as such term is defined
in Item 601(b)(10) of Regulation S-K of the SEC) to be performed after the date
of this Agreement that has not been filed or incorporated by reference in the
Old Kent Reports, (iv) which materially restricts the conduct of any line of
business by Old Kent or upon consummation of the Merger will materially restrict
the ability of the Surviving Corporation to engage in any line of business in
which a bank holding company may lawfully engage, (v) with or to a labor union
or guild (including any collective bargaining agreement) or (vi) (including any
stock option plan, stock appreciation rights plan, restricted stock plan or
stock purchase plan) any of the benefits of which will be increased, or the
vesting of the benefits of which will be accelerated, by the occurrence of any
stockholder approval or the consummation of any of the transactions contemplated
by this Agreement, or the value of any of the benefits of which will be
calculated on the basis of any of the transactions contemplated by this
Agreement. Old Kent has previously made available to Fifth Third true and
correct copies of all employment and deferred compensation agreements which are
in writing and to which Old Kent or any of its Subsidiaries is a party. Each
contract, arrangement, commitment or understanding of the type described in this
Section 3.14(a), whether or not set forth in the Old Kent Disclosure Schedule,
is referred to herein as a "Old Kent Contract," and neither Old Kent nor any of
its Subsidiaries knows of, or has received notice of, any violation of the above
by any of the other parties thereto which, either individually or in the
aggregate, will have a Material Adverse Effect on Old Kent.
(b) With such exceptions that, either individually or in the aggregate,
will not have a Material Adverse Effect on Old Kent, (i) each Old Kent Contract
is valid and binding on Old Kent or any of its Subsidiaries, as applicable, and
is in full force and effect, (ii) Old Kent and each of its Subsidiaries has in
all material respects performed all obligations required to be performed by it
to date under each Old Kent Contract, and (iii) no event or condition exists
which constitutes or, after notice or lapse of time or both, will constitute, a
material default on the part of Old Kent or any of its Subsidiaries under any
such Old Kent Contract.
3.15 Agreements with Regulatory Agencies. Neither Old Kent nor any of its
Subsidiaries is subject to any cease-and-desist or other order or enforcement
action issued by, or is a party to any written agreement, consent agreement or
memorandum of understanding with, or is a party to any commitment letter or
similar undertaking to, or is subject to any order or directive by, or has been
ordered to pay any civil money penalty by, or has been since January 1, 1997, a
recipient of any supervisory letter from, or since January 1, 1997, has adopted
any policies, procedures or board resolutions at the request or suggestion of
any Regulatory Agency or other Governmental Entity that currently restricts in
any material respect the conduct of its business or that in any material manner
relates to its capital adequacy, its ability to pay dividends, its credit or
risk management policies, its management or its business (each item in this
sentence, whether or not set forth in the Old Kent Disclosure Schedule, a "Old
Kent Regulatory Agreement"), nor has Old Kent or any of its Subsidiaries been
advised since January 1, 1997, by any Regulatory Agency or other Governmental
Entity that it is considering issuing, initiating, ordering, or requesting any
such Old Kent Regulatory Agreement.
3.16 Interest Rate Risk Management Instruments. All interest rate swaps,
caps, floors and option agreements and other interest rate risk management
arrangements, whether entered into for the account of Old Kent or for the
account of a customer of Old Kent or any of its Subsidiaries, were entered into
in the ordinary course of business consistent with past practice and, to Old
Kent's knowledge, in accordance with prudent banking practice and applicable
rules, regulations and policies of any Regulatory Authority and with
counterparties believed to be financially responsible at the time and are legal,
valid and binding obligations of Old Kent or one of its Subsidiaries enforceable
in accordance with their terms (except as may be limited by bankruptcy,
insolvency, moratorium, reorganization or similar laws affecting the rights of
creditors generally and the availability of equitable remedies), and are in full
force and effect. Old Kent and each of its
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Subsidiaries have duly performed in all material respects all of their material
obligations thereunder to the extent that such obligations to perform have
accrued; and, to Old Kent's knowledge, there are no material breaches,
violations or defaults or allegations or assertions of such by any party
thereunder.
3.17 Undisclosed Liabilities. Except for those liabilities that are fully
reflected or reserved against on the consolidated balance sheet of Old Kent
included in the Old Kent 1999 10-K and for liabilities incurred in the ordinary
course of business consistent with past practice since December 31, 1999, since
such date, neither Old Kent nor any of its Subsidiaries has incurred any
liability of any nature whatsoever (whether absolute, accrued, contingent or
otherwise and whether due or to become due) that, either individually or in the
aggregate (including if considered together with liabilities incurred in the
ordinary course of business consistent with past practice since December 31,
1999), has had or will have a Material Adverse Effect on Old Kent.
3.18 Environmental Liability. There are no legal, administrative, arbitral
or other proceedings, claims, actions, causes of action, private environmental
investigations or remediation activities or governmental investigations of any
nature seeking to impose, or that could reasonably result in the imposition, on
Old Kent of any liability or obligation arising under common law or under any
local, state or federal environmental statute, regulation or ordinance
including, without limitation, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, pending or threatened
against Old Kent, which liability or obligation will, either individually or in
the aggregate, have a Material Adverse Effect on Old Kent. To the knowledge of
Old Kent, there is no reasonable basis for any such proceeding, claim, action or
governmental investigation that would impose any liability or obligation that
will, individually or in the aggregate, have a Material Adverse Effect on Old
Kent. Old Kent is not subject to any agreement, order, judgment, decree, letter
or memorandum by or with any Governmental Authority or third party imposing any
liability or obligation with respect to the foregoing that will have, either
individually or in the aggregate, a Material Adverse Effect on Old Kent.
3.19 Intellectual Property. Except as would not reasonably be expected to
have a Material Adverse Effect on Old Kent, to the knowledge of Old Kent: (a)
Old Kent and each of its Subsidiaries owns, or is licensed to use (in each case,
free and clear of any liens), all Intellectual Property (as defined below) used
in or necessary for the conduct of its business as currently conducted; (b) the
use of any Intellectual Property by Old Kent and its Subsidiaries does not
infringe on or otherwise violate the rights of any person and is in accordance
with any applicable license pursuant to which Old Kent or any Subsidiary
acquired the right to use any Intellectual Property; (c) no Person is
challenging, infringing on or otherwise violating any right of Old Kent or any
of its Subsidiaries with respect to any Intellectual Property owned by and/or
licensed to Old Kent or its Subsidiaries; and (d) neither Old Kent nor any of
its Subsidiaries has received any written notice of any pending claim with
respect to any Intellectual Property used by Old Kent and its Subsidiaries and
no Intellectual Property owned and/or licensed by Old Kent or its Subsidiaries
is being used or enforced in a manner that would result in the abandonment,
cancellation or unenforceability of such Intellectual Property. For purposes of
this Agreement, "Intellectual Property" shall mean trademarks, service marks,
brand names, certification marks, trade dress and other indications of origin,
the goodwill associated with the foregoing and registrations in any jurisdiction
of, and applications in any jurisdiction to register, the foregoing, including
any extension, modification or renewal of any such registration or application;
inventions, discoveries and ideas, whether patentable or not, in any
jurisdiction; patents, applications for patents (including, without limitation,
divisions, continuations, continuations in part and renewal applications), and
any renewals, extensions or reissues thereof, in any jurisdiction; nonpublic
information, trade secrets and confidential information and rights in any
jurisdiction to limit the use or disclosure thereof by any person; writings and
other works, whether copyrightable or not, in any jurisdiction; and
registrations or applications for registration of copyrights in any
jurisdiction, and any renewals or extensions thereof; any similar intellectual
property or proprietary rights.
3.20 State Takeover Laws; Old Kent Rights Agreement. (a) The Board of
Directors of Old Kent has approved this Agreement and the Old Kent Option
Agreement and the transactions contemplated hereby and thereby for purposes of
rendering inapplicable to such agreements and transactions the Michigan Control
Share Acquisitions statute (Chapter 7B of the MBCA), Section 780 of the MBCA,
the Old Kent Rights
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Agreement, Article XII of the Old Kent Articles and, to the best knowledge of
Old Kent, any similar "takeover" or "interested stockholder" law (all such laws,
including the Michigan Control Share Acquisitions statute (Chapter 7B of the
MBCA) and Section 780 of the MBCA, "Takeover Statutes").
(b) Old Kent has taken all action, if any, necessary or appropriate so that
the entering into of this Agreement and the Old Kent Option Agreement, and the
consummation of the transactions contemplated hereby and thereby do not and will
not result in the ability of any person to exercise any Old Kent Stockholder
Rights under the Old Kent Rights Agreement or enable or require Old Kent
Stockholder Rights to separate from the shares of Old Kent Common Stock to which
they are attached or to be triggered or become exercisable. No "Triggering
Event" or "Stock Acquisition Date" (as such terms are defined in the Old Kent
Rights Agreement) has occurred.
3.21 Reorganization; Pooling of Interests. As of the date of this
Agreement, Old Kent has no reason to believe that the Merger will not qualify as
a "reorganization" within the meaning of Section 368(a) of the Code and as a
"pooling of interests" for accounting purposes.
3.22 Opinions. Prior to the execution of the Original Agreement, Old Kent
received an opinion from Xxxxxxx Xxxxx & Co. to the effect that as of the date
thereof and based upon and subject to the matters set forth therein, the
Exchange Ratio is fair to the stockholders of Old Kent from a financial point of
view. Such opinion has not been amended or rescinded as of the date of this
Amended and Restated Agreement and Plan of Merger.
3.23 Old Kent Information. The information relating to Old Kent and its
Subsidiaries which is provided by Old Kent or its representatives for inclusion
in the Joint Proxy Statement and the S-4, or in any other document filed with
any other Regulatory Agency in connection herewith, will not contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein, in light of the circumstances in which they are made,
not misleading. The Joint Proxy Statement (except for such portions thereof that
relate only to Fifth Third or any of its Subsidiaries) will comply with the
provisions of the Exchange Act and the rules and regulations thereunder.
3.24 Loan Losses. Since December 31, 1999, none of the bank Subsidiaries of
Old Kent (the "Old Kent Bank Subsidiaries") has incurred any unusual or
extraordinary loan losses which are material to Old Kent and the Old Kent
Subsidiaries on a consolidated basis; to the best knowledge of Old Kent and in
light of each of the Old Kent Bank Subsidiaries' historical loan loss experience
and its management's analysis of the quality and performance of its loan
portfolio, as of December 31, 1999, its reserves for loan losses are adequate to
absorb potential loan losses determined on the basis of management's continuing
review and evaluation of the loan portfolio and its judgment as to the impact of
economic conditions on the portfolio.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF FIFTH THIRD AND MERGER SUB
Except as disclosed in (i) the Fifth Third disclosure schedule delivered to
Old Kent prior to the execution of this Agreement (the "Fifth Third Disclosure
Schedule") or (ii) the Fifth Third Reports filed prior to the date hereof, Fifth
Third and Merger Sub jointly and severally represent and warrant to Old Kent as
follows:
4.1 Corporate Organization. (a) Each of Fifth Third and Merger Sub is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Ohio. Each of Fifth Third and Merger Sub has the corporate power
and authority to own or lease all of its properties and assets and to carry on
its business as it is now being conducted, and is duly licensed or qualified to
do business in each jurisdiction in which the nature of the business conducted
by it or the character or location of the properties and assets owned or leased
by it makes such licensing or qualification necessary, except where the failure
to be so licensed or qualified would not, either individually or in the
aggregate, have a Material Adverse Effect on either Fifth Third or Merger Sub.
Fifth Third was certified as an FHC under the BHC Act, and remains a certified
FHC on the date hereof. True and complete copies of the Second Amended Articles
of Incorporation
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(the "Fifth Third Articles") and the Code of Regulations of Fifth Third, as in
effect as of the date of this Agreement, have previously been made available by
Fifth Third to Old Kent. True and complete copies of the Articles of
Incorporation (the "Merger Sub Articles") and the Code of Regulations of Merger
Sub, as in effect as of the date of this Amended and Restated Agreement and Plan
of Merger, have, prior to the date of this Amended and Restated Agreement and
Plan of Merger, been made available by Merger Sub to Old Kent.
(b) Each Fifth Third Subsidiary (i) is duly organized and validly existing
under the laws of its jurisdiction of organization, (ii) is duly qualified to do
business and in good standing in all jurisdictions (whether Federal, state,
local or foreign) where its ownership or leasing of property or the conduct of
its business requires it to be so qualified and in which the failure to be so
qualified would have a Material Adverse Effect on Fifth Third, and (iii) has all
requisite corporate power and authority to own or lease its properties and
assets and to carry on its business as now conducted.
(c) Merger Sub does not have any Subsidiaries or material investments of
any kind in any entity. Merger Sub has been incorporated on behalf of Fifth
Third solely for purposes of accomplishing the Merger, has not engaged in any
other business activity and has conducted its operations only as contemplated
hereby.
4.2 Capitalization. (a) The authorized capital stock of Fifth Third
consists of 650,000,000 shares of Fifth Third Common Stock, of which, as of
September 30, 2000, no more than 461,800,000 shares were issued and outstanding,
and 500,000 shares of preferred stock, without par value, of which no shares
have been issued by Fifth Third. As of September 30, 2000, no more than
3,600,000 shares of Fifth Third Common Stock were held in Fifth Third's
treasury. As of the date hereof, no shares of Fifth Third Common Stock or Fifth
Third Preferred Stock were reserved for issuance, except as described in this
Section 4.2(a) and except for 34,472,128 shares reserved for issuance upon
exercise of options issued pursuant to employee and director stock plans of
Fifth Third in effect as of the date hereof (the "Fifth Third Stock Plans"). All
of the issued and outstanding shares of Fifth Third Capital Stock have been duly
authorized and validly issued and are fully paid, nonassessable and free of
preemptive rights, with no personal liability attaching to the ownership
thereof. As of the date of this Agreement, except for this Agreement and the
Fifth Third Stock Plans, Fifth Third does not have and is not bound by any
outstanding subscriptions, options, warrants, calls, commitments or agreements
of any character calling for the purchase or issuance of any shares of Fifth
Third Capital Stock or any other equity securities of Fifth Third or any
securities representing the right to purchase or otherwise receive any shares of
Fifth Third Capital Stock. The shares of Fifth Third Common Stock to be issued
pursuant to the Merger will be duly authorized and validly issued and, at the
Effective Time, all such shares will be fully paid, nonassessable and free of
preemptive rights, with no personal liability attaching to the ownership
thereof.
(b) The authorized capital stock of Merger Sub consists of 800 shares of
Merger Sub Common Stock, of which, as of the date of this Amended and Restated
Agreement and Plan of Merger, 100 shares were issued and outstanding and all
such 100 shares were beneficially owned by Fifth Third.
(c) Fifth Third owns, directly or indirectly, all of the issued and
outstanding shares of capital stock or other equity ownership interests of each
of the Fifth Third Subsidiaries, free and clear of any Liens, and all of such
shares or equity ownership interests are duly authorized and validly issued and
are fully paid, nonassessable (subject to 12 U.S.C. sec.sec. 55) and free of
preemptive rights, with no personal liability attaching to the ownership
thereof. No Fifth Third Subsidiary has or is bound by any outstanding
subscriptions, options, warrants, calls, commitments or agreements of any
character calling for the purchase or issuance of any shares of capital stock or
any other equity security of such Subsidiary or any securities representing the
right to purchase or otherwise receive any shares of capital stock or any other
equity security of such Subsidiary.
4.3 Authority, No Violation. (a) Each of Fifth Third and Merger Sub has
full corporate power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby have
been duly and validly approved by the Board of Directors of Fifth Third by
action of its Executive Committee, by the Board of Directors of Merger Sub and
by Fifth Third as sole stockholder of Merger Sub. The Board of Directors of
Fifth Third has determined that this Agreement and the transactions contemplated
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hereby are in the best interests of Fifth Third and its stockholders and has
directed that this Agreement and the transactions contemplated hereby be
submitted to Fifth Third's stockholders for adoption at a duly held meeting of
such stockholders and, except for the approval of this Agreement and the
transactions contemplated hereby, including the issuance of shares of Fifth
Third Common Stock pursuant to the Merger, by the affirmative vote of the
holders of a majority of the outstanding shares of Fifth Third Common Stock
voted at such meeting, no other corporate proceedings on the part of Fifth Third
and Merger Sub are necessary to approve this Agreement or to consummate the
transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by Fifth Third and Merger Sub and (assuming due
authorization, execution and delivery by Old Kent) constitutes valid and binding
obligations of Fifth Third and Merger Sub, enforceable against Fifth Third and
Merger Sub in accordance with its terms (except as may be limited by bankruptcy,
insolvency, moratorium, reorganization or similar laws affecting the rights of
creditors generally and the availability of equitable remedies).
(b) Neither the execution and delivery of this Agreement by Fifth Third and
Merger Sub, nor the consummation by Fifth Third and Merger Sub of the
transactions contemplated hereby, nor compliance by Fifth Third and Merger Sub
with any of the terms or provisions hereof, will (i) violate any provision of
the Fifth Third Articles or Code of Regulations or the Merger Sub Articles or
Code or Regulations, or (ii) assuming that the consents and approvals referred
to in Section 4.4 are duly obtained, (x) violate any statute, code, ordinance,
rule, regulation, judgment, writ, or Injunction applicable to Fifth Third, any
of its Subsidiaries or any of their respective properties or assets or (y)
violate, conflict with, result in a breach of any provision of or the loss of
any benefit under, constitute a default (or an event which, with notice or lapse
of time, or both, would constitute a default) under, result in the termination
of or a right of termination or cancellation under, accelerate the performance
required by, or result in the creation of any Lien upon any of the respective
properties or assets of Fifth Third, any of its Subsidiaries under, any of the
terms, conditions or provisions of any note, bond, mortgage, indenture, deed of
trust, license, lease, agreement or other instrument or obligation to which
Fifth Third or any of its Subsidiaries is a party, or by which they or any of
their respective properties or assets may be bound or affected, except (in the
case of clause (y) above) for such violations, conflicts, breaches or defaults
which either individually or in the aggregate will not have a Material Adverse
Effect on Fifth Third or Merger Sub.
4.4 Consents and Approvals. Except for (i) the filing of applications and
notices, as applicable, with the Federal Reserve Board under the BHC Act and the
Federal Reserve Act, as amended, and approval of such applications and notices,
(ii) the State Approvals, (iii) the filing with the SEC of the Joint Proxy
Statement and the filing and declaration of effectiveness of the S-4, (iv) the
filing of the Ohio Certificate of Merger with the Secretary of State of the
State of Ohio pursuant to the OGCL and the filing of the Michigan Certificate of
Merger with the appropriate office of the State of Michigan pursuant to the
MBCA, (v) any notices to or filings with the SBA, (vi) any notices or filings
under the HSR Act, (vii) any consents, authorizations, approvals, filings or
exemptions in connection with compliance with the applicable provisions of
federal and state securities laws relating to the regulation of broker-dealers,
investment advisers or transfer agents, and federal commodities laws relating to
the regulation of futures commission merchants and the rules and regulations
thereunder and of any applicable SRO, and the rules of the NASDAQ, or which are
required under consumer finance, mortgage banking and other similar laws, (viii)
such filings and approvals as are required to be made or obtained under the
securities or "Blue Sky" laws of various states in connection with the issuance
of the shares of Fifth Third Capital Stock pursuant to this Agreement, (ix) such
filings and approvals as are required to be made with or obtained from the OCC
and (x) the approval of this Agreement and the issuance of shares of Fifth Third
Common Stock pursuant to the Merger by the requisite vote of stockholders of
Fifth Third, no consents or approvals of or filings or registrations with any
Governmental Entity are necessary in connection with (A) the execution and
delivery by Fifth Third and Merger Sub of this Agreement and (B) the
consummation by Fifth Third and Merger Sub of the Merger and the other
transactions contemplated hereby.
4.5 Reports. Fifth Third and each of its Subsidiaries have timely filed all
reports, registrations and statements, together with any amendments required to
be made with respect thereto, that they were required to file since January 1,
1997 with the Regulatory Agencies, and all other reports and statements required
to
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be filed by them since January 1, 1997, including, without limitation, any
report or statement required to be filed pursuant to the laws, rules or
regulations of the United States, any state, any foreign entity or any
Regulatory Agency, and have paid all fees and assessments due and payable in
connection therewith, except where the failure to file such report, registration
or statement or to pay such fees and assessments, either individually or in the
aggregate, will not have a Material Adverse Effect on Fifth Third. Except for
normal examinations conducted by a Regulatory Agency in the ordinary course of
the business of Fifth Third and its Subsidiaries, no Regulatory Agency has
initiated or has pending any proceeding or, to the best knowledge of Fifth
Third, investigation into the business or operations of Fifth Third or any of
its Subsidiaries since January 1, 1997, except where such proceedings or
investigation will not have, either individually or in the aggregate, a Material
Adverse Effect on Fifth Third. There (i) is no unresolved violation, criticism,
or exception by any Regulatory Agency with respect to any report or statement
relating to any examinations or inspections of Fifth Third or any of its
Subsidiaries, and (ii) has been no formal or informal inquiries by, or
disagreements or disputes with, any Regulatory Agency with respect to the
business, operations, policies or procedures of Fifth Third since January 1,
1997, which, in the reasonable judgment of Fifth Third, will have, either
individually or in the aggregate, a Material Adverse Effect on Fifth Third.
4.6 Financial Statements. Fifth Third has previously provided to Old Kent
copies of (i) the audited consolidated balance sheets of Fifth Third and its
Subsidiaries as of December 31, for the fiscal years 1998 and 1999, and the
related audited consolidated statements of income, changes in stockholders'
equity and cash flows for the fiscal years 1997 through 1999, inclusive (the
"Fifth Third 1999 Financial Information"), as reported in Fifth Third's Annual
Report on Form 10-K for the fiscal year ended December 31, 1999 (the "Fifth
Third 1999 10-K") filed with the SEC under the Exchange Act, accompanied by the
audit report of Deloitte & Touche LLP, independent public accountants with
respect to Fifth Third and (ii) the unaudited consolidated balance sheet of
Fifth Third and its Subsidiaries as of September 30, 1999 and 2000, and the
related consolidated statements of income, changes in shareholders' equity and
cash flows of the nine month periods then ended, as reported in Fifth Third's
Quarterly Report on Form 10-Q for the fiscal period ended September 30, 2000.
The December 31, 1999 consolidated balance sheet of Fifth Third (including the
related notes, where applicable) fairly presents in all material respects the
consolidated financial position of Fifth Third and its Subsidiaries as of the
date thereof, and the other financial statements referred to in this Section 4.6
(including the related notes, where applicable) fairly present in all material
respects the results of the consolidated operations and changes in stockholders'
equity and consolidated financial position of Fifth Third and its Subsidiaries
for the respective fiscal periods or as of the respective dates therein set
forth, subject to normal year-end audit adjustments in amounts consistent with
past experience in the case of unaudited statements; each of such statements
(including the related notes, where applicable) complies in all material
respects with applicable accounting requirements and with the published rules
and regulations of the SEC with respect thereto; and each of such statements
(including the related notes, where applicable) has been prepared in all
material respects in accordance with GAAP consistently applied during the
periods involved, except in each case as indicated in such statements or in the
notes thereto. The books and records of Fifth Third and its Subsidiaries have
been, and are being, maintained in all material respects in accordance with GAAP
and any other applicable legal and accounting requirements and reflect only
actual transactions.
4.7 Broker's Fees. Neither Fifth Third nor any Fifth Third Subsidiary nor
any of their respective officers or directors has employed any broker or finder
or incurred any liability for any brokers fees, commissions or finder's fees
other than fees payable to Xxxxxxx Xxxxx Xxxxxx, Inc. in connection with the
Merger or related transactions contemplated by this Agreement.
4.8 Absence of Certain Changes or Events. (a) Since December 31, 1999, no
event or events have occurred which has had, individually or in the aggregate, a
Material Adverse Effect on Fifth Third.
(b) From December 31, 1999 through and including the date hereof, Fifth
Third and the Fifth Third Subsidiaries have carried on their respective
businesses in all material respect in the ordinary course.
4.9 Legal Proceedings. (a) Neither Fifth Third nor any of its Subsidiaries
is a party to any, and there are no pending or, to the best of Fifth Third's
knowledge, threatened, legal, administrative, arbitral or other proceedings,
claims, actions or governmental or regulatory investigations of any nature
against Fifth Third or
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any of its Subsidiaries or challenging the validity or propriety of the
transactions contemplated by this Agreement as to which, in any such case, there
is a reasonable probability of an adverse determination and which, if adversely
determined, will have, either individually or in the aggregate, a Material
Adverse Effect on Fifth Third.
(b) There is no Injunction, judgment, or regulatory restriction (other than
those of general application that apply to similarly situated bank holding
companies or their Subsidiaries) imposed upon Fifth Third, any of its
Subsidiaries or the assets of Fifth Third or any of its Subsidiaries that has
had or will have, either individually or in the aggregate, a Material Adverse
Effect on Fifth Third or the Surviving Corporation.
4.10 Taxes and Tax Returns. Each of Fifth Third and its Subsidiaries has
duly filed all federal, state, foreign and local information returns and Tax
returns required to be filed by it on or prior to the date hereof (all such
returns being accurate and complete in all material respects) and has duly paid
or made provision for the payment of all Taxes and other governmental charges
which have been incurred or are due or claimed to be due from it by federal,
state, foreign or local taxing authorities (including, without limitation, if
and to the extent applicable, those due in respect of its properties, income,
business, capital stock, deposits, franchises, licenses, sales and payrolls)
other than (i) Taxes or other governmental charges which are not yet delinquent
or are being contested in good faith and have not been finally determined, or
(ii) information returns, tax returns, Taxes or other governmental charges as to
which the failure to file, pay or make provision for will not have, either
individually or in the aggregate, a Material Adverse Effect on Fifth Third. The
federal income Tax returns of Fifth Third and its Subsidiaries have been
examined by the IRS through 1990 and any liability with respect thereto has been
satisfied or any liability with respect to deficiencies asserted as a result of
such examination is covered by adequate reserves. There are no material disputes
pending, or claims asserted for, Taxes or assessments upon Fifth Third or any of
its Subsidiaries for which Fifth Third does not have adequate reserves
maintained in accordance with GAAP. Neither Fifth Third nor any of its
Subsidiaries is a party to or is bound by any Tax sharing, allocation or
indemnification agreement or arrangement (other than such an agreement or
arrangement exclusively between or among Fifth Third and its Subsidiaries).
Within the past five years, neither Fifth Third nor any of its Subsidiaries has
been a "distributing corporation" or a "controlled corporation" in a
distribution intended to qualify under Section 355(a) of the Code.
(b) No disallowance of a deduction under Section 162(m) of the Code for
employee remuneration of any amount paid or payable by Fifth Third or any of its
Subsidiaries under any contract, plan, program, arrangement or understanding
would be reasonably likely to have, individually or in the aggregate, a Material
Adverse Effect on Fifth Third.
4.11 SEC Reports. Fifth Third has previously made available to Old Kent an
accurate and complete copy of each (a) final registration statement, prospectus,
report, schedule and definitive proxy statement filed since January 1, 1997 by
Fifth Third with the SEC pursuant to the Securities Act or the Exchange Act (the
"Fifth Third Reports") and prior to the date hereof and (b) communication mailed
by Fifth Third to its stockholders since January 1, 1997 and prior to the date
hereof, and no such Fifth Third Report or communication, as of the date thereof,
contained any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances in which they were made, not
misleading, except that information as of a later date (but before the date
hereof) shall be deemed to modify information as of an earlier date. Since
January 1, 1997, as of their respective dates, all Fifth Third Reports filed
under the Securities Act and the Exchange Act complied in all material respects
with the published rules and regulations of the SEC with respect thereto.
4.12 Compliance with Applicable Law. (a) Fifth Third and each of its
Subsidiaries hold all material licenses, franchises, permits and authorizations
necessary for the lawful conduct of their respective businesses under and
pursuant to each, and have complied in all material respects with and are not in
default in any material respect under any, applicable law, statute, order, rule,
regulation, policy and/or guideline of any Governmental Entity relating to Fifth
Third or any of its Subsidiaries, except where the failure to hold such license,
franchise, permit or authorization or such noncompliance or default will not,
either individually or in the aggregate, have a Material Adverse Effect on Fifth
Third.
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(b) Except as will not have, either individually or in the aggregate, a
Material Adverse Effect on Fifth Third, Fifth Third and each Fifth Third
Subsidiary have properly administered all accounts for which it acts as a
fiduciary, including accounts for which it serves as a trustee, agent,
custodian, personal representative, guardian, conservator or investment advisor,
in accordance with the terms of the governing documents, applicable state and
federal law and regulation and common law. None of Fifth Third, any Fifth Third
Subsidiary, or any director, officer or employee of Fifth Third or of any Fifth
Third Subsidiary, has committed any breach of trust with respect to any such
fiduciary account that will have a Material Adverse Effect on Fifth Third, and
the accountings for each such fiduciary account are true and correct in all
material respects and accurately reflect the assets of such fiduciary account.
4.13 Agreements with Regulatory Agencies. Neither Fifth Third nor any of
its Subsidiaries is subject to any cease-and-desist or other order or
enforcement action issued by, or is a party to any written agreement, consent
agreement or memorandum of understanding with, or is a party to any commitment
letter or similar undertaking to, or is subject to any order or directive by, or
has been since January 1, 1997, a recipient of any supervisory letter from, or
has been ordered to pay any civil money penalty by, or since January 1, 1997,
has adopted any policies, procedures or board resolutions at the request of any
Regulatory Agency or other Governmental Entity that currently restricts in any
material respect the conduct of its business or that in any material manner
relates to its capital adequacy, its ability to pay dividends, its credit or
risk management policies, its management or its business (each, whether or not
set forth in the Fifth Third Disclosure Schedule, a "Fifth Third Regulatory
Agreement"), nor has Fifth Third or any of its Subsidiaries been advised since
January 1, 1997, by any Regulatory Agency or other Governmental Entity that it
is considering issuing, initiating, ordering or requesting any such Fifth Third
Regulatory Agreement.
4.14 Interest Rate Risk Management Instruments. All interest rate swaps,
caps, floors and option agreements and other interest rate risk management
arrangements, whether entered into for the account of Fifth Third or for the
account of a customer of Fifth Third or one of its Subsidiaries, were entered
into in the ordinary course of business consistent with past practice and, to
Fifth Third's knowledge, in accordance with prudent banking practice and
applicable rules, regulations and policies of any Regulatory Authority and with
counterparties believed to be financially responsible at the time and are legal,
valid and binding obligations of Fifth Third or one of its Subsidiaries
enforceable in accordance with their terms (except as may be limited by
bankruptcy, insolvency, moratorium, reorganization or similar laws affecting the
rights of creditors generally and the availability of equitable remedies), and
are in full force and effect. Fifth Third and each of its Subsidiaries have duly
performed in all material respects all of their material obligations thereunder
to the extent that such obligations to perform have accrued; and to Fifth
Third's knowledge, there are no material breaches, violations or defaults or
allegations or assertions of such by any party thereunder.
4.15 Undisclosed Liabilities. Except for those liabilities that are fully
reflected or reserved against on the consolidated balance sheet of Fifth Third
included in the Fifth Third 1999 Financial Information and for liabilities
incurred in the ordinary course of business consistent with past practice since
December 31, 1999, since such date, neither Fifth Third nor any of its
Subsidiaries has incurred any liability of any nature whatsoever (whether
absolute, accrued, contingent or otherwise and whether due or to become due)
that, either individually or in the aggregate (including if considered together
with liabilities incurred in the ordinary course of business consistent with
past practice since December 31, 1999), has had or will have, a Material Adverse
Effect on Fifth Third.
4.16 Environmental Liability. There are no legal, administrative, arbitral
or other proceedings, claims, actions, causes of action, private environmental
investigations or remediation activities or governmental investigations of any
nature seeking to impose, or that could reasonably result in the imposition, on
Fifth Third of any liability or obligation arising under common law or under any
local, state or federal environmental statute, regulation or ordinance
including, without limitation, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, pending or threatened
against Fifth Third, which liability or obligation will, either individually or
in the aggregate, have a Material Adverse Effect on Fifth Third. To the
knowledge of Fifth Third, there is no reasonable basis for any such proceeding,
claim, action or governmental investigation that would impose any liability or
obligation that will, individually or in the aggregate, have a Material Adverse
Effect on Fifth Third. Fifth Third is not subject to any agreement,
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order, judgment, decree, letter or memorandum by or with any Governmental
Authority or third party imposing any liability or obligation with respect to
the foregoing that will have, either individually or in the aggregate, a
Material Adverse Effect on Fifth Third.
4.17 Reorganization; Pooling of Interests. As of the date of this
Agreement, Fifth Third has no reason to believe that the Merger will not qualify
as a "reorganization" within the meaning of Section 368(a) of the Code and as a
"pooling of interests" for accounting purposes.
4.18 Fifth Third Information. The information relating to Fifth Third and
its Subsidiaries to be contained in the Joint Proxy Statement and the S-4, or
the information relating to Fifth Third and its Subsidiaries that is provided by
Fifth Third or its representatives for inclusion in any other document filed
with any other Regulatory Agency in connection herewith, will not contain any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein, in light of the circumstances in which they are
made, not misleading. The Joint Proxy Statement (except for such portions
thereof that relate only to Old Kent or any of its Subsidiaries) will comply
with the provisions of the Exchange Act and the rules and regulations
thereunder. The S-4 will comply with the provisions of the Securities Act and
the rules and regulations thereunder.
4.19 Loan Losses. Since December 31, 1999, none of the bank Subsidiaries of
Fifth Third (the "Fifth Third Bank Subsidiaries") has incurred any unusual or
extraordinary loan losses which are material to Fifth Third and the Fifth Third
Subsidiaries on a consolidated basis; to the best knowledge of Fifth Third and
in light of each of the Fifth Third Bank Subsidiaries' historical loan loss
experience and its management's analysis of the quality and performance of its
loan portfolio, as of December 31, 1999, its reserves for loan losses are
adequate to absorb potential loan losses determined on the basis of management's
continuing review and evaluation of the loan portfolio and its judgment as to
the impact of economic conditions on the portfolio.
ARTICLE V
COVENANTS RELATING TO CONDUCT OF BUSINESS
5.1 Conduct of Businesses Prior to the Effective Time. During the period
from the date of this Agreement to the Effective Time, except as expressly
contemplated or permitted by this Agreement (including the Old Kent Disclosure
Schedule) or the Old Kent Option Agreement, Old Kent shall, and shall cause each
of its Subsidiaries to, (a) conduct its business in the ordinary course, (b) use
reasonable best efforts to maintain and preserve intact its business
organization, employees and advantageous business relationships and retain the
services of its key officers and key employees and (c) take no action which
would adversely affect or delay the ability of the parties to obtain any
necessary approvals of any Regulatory Agency or other Governmental Entity
required for the transactions contemplated hereby or to perform its covenants
and agreements under this Agreement or the Old Kent Option Agreement or to
consummate the transactions contemplated hereby or thereby.
5.2 Forbearances. During the period from the date of this Agreement to the
Effective Time, except as set forth in the Old Kent Disclosure Schedule and
except as expressly contemplated or permitted by this Agreement, Old Kent shall
not, and shall not permit any of its Subsidiaries to, without the prior written
consent of Fifth Third:
(a) other than in the ordinary course of business consistent with past
practice, incur any indebtedness for borrowed money (other than short-term
indebtedness incurred to refinance short-term indebtedness and indebtedness of
Old Kent or any of its wholly owned Subsidiaries to Old Kent or any of its
Subsidiaries), assume, guarantee, endorse or otherwise as an accommodation
become responsible for the obligations of any other individual, corporation or
other entity, or make any loan or advance (it being understood and agreed that
incurrence of indebtedness in the ordinary course of business consistent with
past practice shall include, without limitation, the creation of deposit
liabilities, purchases of Federal funds, sales of certificates of deposit and
entering into repurchase agreements);
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(b) (i) adjust, split, combine or reclassify any capital stock;
(ii) make, declare or pay any dividend, or make any other distribution on,
or directly or indirectly redeem, purchase or otherwise acquire, any shares of
its capital stock or any securities or obligations convertible (whether
currently convertible or convertible only after the passage of time or the
occurrence of certain events) into or exchangeable for any shares of its capital
stock (except (A) for regular quarterly cash dividends at a rate not in excess
of $0.24 per share of Old Kent Common Stock and such dividends as required by
the certificates of designation of the Old Kent Perpetual Preferred Stock, (B)
dividends paid by any of the Subsidiaries of Old Kent to Old Kent or to any of
its wholly owned Subsidiaries and (C) the acceptance of shares of Old Kent
Common Stock as payment of the exercise price of stock options or for
withholding taxes incurred in connection with the exercise of stock options or
the vesting of restricted stock, in each case in accordance with past practice
and the terms of the applicable award agreements);
(iii) grant any stock appreciation rights or grant any individual,
corporation or other entity any right to acquire any shares of its capital
stock, other than (A) pursuant to the Old Kent Rights Agreement or any renewal
or replacement thereof and (B) grants to newly hired employees of Old Kent
(other than officers that will be subject to the reporting requirements of
Section 16(a) of the Exchange Act) made in the ordinary course of business
consistent with past practice under the Old Xxxx Xxxxx Plans and consistent with
the additional terms set forth in Section 5.2 of the Old Kent Disclosure
Schedule; or
(iv) issue any additional shares of capital stock except (A) pursuant to
the exercise of stock options outstanding as of the date hereof or issued in
compliance with Section 5.2(b)(iii), (B) pursuant to the Old Kent Option
Agreement (C) pursuant to the Old Kent Rights Agreement or any renewal or
replacement thereof or (D) upon conversion of the Series D Perpetual Preferred
Stock;
(c) (i) except for normal increases for employees (other than officers
subject to the reporting requirements of Section 16(a) of the Exchange Act) made
in the ordinary course of business consistent with past practice, or as required
by applicable law or agreements disclosed in Section 5.2 of the Old Kent
Disclosure Schedule, increase the wages, salaries, compensation, pension, or
other fringe benefits or perquisites payable to any officer, employee, or
director, or (ii) pay any pension or retirement allowance not required by any
existing plan or agreement or by applicable law, or (iii) pay any bonus other
than customary year-end bonuses for fiscal 2000 determined in accordance with
Section 5.2 of the Old Kent Disclosure Schedule, or (iv) become a party to,
amend or commit itself to, any pension, retirement, profit-sharing or welfare
benefit plan or agreement or employment agreement with or for the benefit of any
employee other than in the ordinary course of business consistent with past
practice or as required by applicable law, or (v) except as required under any
existing plan, grant, or agreement disclosed in Section 5.2 of the Old Kent
Disclosure Schedule, accelerate the vesting of, or the lapsing of restrictions
with respect to, any stock options or other equity-based compensation, or (vi)
except as required by the terms of the plans, make any contribution to the
defined benefit plans maintained by Old Kent or discretionary contributions to
any benefit plans after the date of this Agreement, or (vii) take any action to
amend the defined benefit plans which would reduce or restrict the availability
of surplus (excess of plan assets over plan liabilities) under any defined
benefit plan as defined in Section 414(j) of the Code;
(d) sell, transfer, mortgage, encumber or otherwise dispose of any of its
material properties or assets to any individual, corporation or other entity or
cancel, release or assign any indebtedness to any such person or any claims held
by any such person, in each case other than in the ordinary course of business
consistent with past practice or as required by applicable law or as set forth
in the Old Kent Disclosure Schedule;
(e) except for transactions in the ordinary course of business consistent
with past practice (other than as set forth in Section 5.2 of the Old Kent
Disclosure Schedule), make any material investment either by purchase of stock
or securities, contributions to capital, property transfers, or purchase of any
property or assets of any other individual, corporation or other entity;
(f) except for transactions in the ordinary course of business consistent
with past practice, terminate, or waive any material provision of any Old Kent
Contract or make any change in any instrument or agreement
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governing the terms of any of its securities, or material lease or contract,
other than normal renewals of contracts and leases without material adverse
changes of terms;
(g) solicit or encourage from any third party or enter into or continue any
negotiations, discussions or agreement in respect of, or authorize any
individual, corporation or other entity to solicit or encourage from any third
party or enter into or continue any negotiations, discussions or agreements in
respect of, or provide or cause to be provided any confidential information in
connection with, any inquiries or proposals relating to the disposition of all
or significant portion of its business or assets, the acquisition of 15% or more
of its voting securities, or the merger, consolidation or similar business
combination transaction involving it or any of its Subsidiaries with any
corporation or other entity, other than as provided by this Agreement (and Old
Kent shall promptly (within 24 hours) notify Fifth Third of all of the relevant
details relating to all inquiries and proposals which it may receive relating to
any of such matters), or waive or amend any provision of the Old Kent Rights
Agreement or any applicable confidentiality agreement in respect of any such
proposal;
(h) settle any claim, action or proceeding requiring Old Kent or any of its
Subsidiaries to pay (whether or not such payments would be covered in whole or
in part by insurance) any monetary damages in excess of $500,000 or subjecting
Old Kent or any of its Subsidiaries to any restrictions (other than immaterial
restrictions) on its current or future business or operations (including the
future business and operations of the Surviving Corporation);
(i) knowingly take any action, or knowingly fail to take any action, that
is reasonably likely to (A) jeopardize the treatment of the Merger as a "pooling
of interests" for accounting purposes (including by terminating and electing to
pay cash for any option to purchase Old Kent Common Stock as may be permitted
under the Old Xxxx Xxxxx Plans or otherwise) or (B) prevent or impede the Merger
from qualifying as a reorganization within the meaning of Section 368 of the
Code;
(j) amend its articles of incorporation, its bylaws or comparable governing
documents, or amend, or redeem the rights issued under, the Old Kent Rights
Agreement (except as required hereunder), or otherwise take any action to exempt
any person or entity (other than Fifth Third or its Subsidiaries) or any action
taken by such person or entity from the Old Kent Rights Agreement or any
Takeover Statute or similarly restrictive provisions of such party's
organizational documents or terminate, amend or waive any provisions of any
confidentiality or standstill agreements in place with any third parties;
(k) other than in prior consultation with the other party to this
Agreement, restructure or materially change its investment securities portfolio
or its gap position, through purchases, sales or otherwise, or the manner in
which the portfolio is classified or reported;
(l) take any action that is intended or is reasonably likely to result in
any of the conditions to the Merger set forth in Article VII not being satisfied
or in a material violation of any provision of this Agreement, except, in every
case, as may be required by applicable law;
(m) implement or adopt any change in its accounting principles, practices
or methods, other than as may be required by GAAP or regulatory guidelines;
(n) file or amend any Tax return other than in the ordinary course of
business, make or change any material Tax election, settle or compromise any
material Tax liability or, except as required by applicable law, change any
method of accounting for Tax purposes;
(o) take any action that would materially impede or delay the ability of
the parties to obtain any necessary approvals of any Regulatory Agency or
Governmental Entity required for the transaction, contemplated hereby or by the
Old Kent Option Agreement; or
(p) agree to take, make any commitment to take, or adopt any resolutions of
its board of directors in support of, any of the actions prohibited by this
Section 5.2.
5.3 Fifth Third Forbearances. During the period from the date of this
Agreement to the Effective Time, except as expressly contemplated or permitted
by this Agreement, Fifth Third and Merger Sub shall not, and shall not permit
any of Fifth Third's Subsidiaries to, without the prior written consent of Old
Kent, (i) amend
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the Fifth Third Articles or Fifth Third Code of Regulations in a manner that
would adversely affect the economic benefits of the Merger to the Old Kent
stockholders, (ii) knowingly take any action, or knowingly fail to take any
action, that is reasonably likely to (A) jeopardize the treatment of the Merger
as a "pooling of interests" for accounting purposes or (B) prevent or impede the
Merger from qualifying as a reorganization within the meaning of Section 368 of
the Code (provided that nothing contained herein shall limit the ability of
Fifth Third to exercise its rights under the Old Kent Option Agreement), (iii)
take any action which would materially impede or delay the ability of the
parties to obtain any necessary approvals of any Regulatory Agency or other
Governmental Entity required for the transactions contemplated hereby, (iv) take
any action that is intended or is reasonably likely to result in any of the
conditions to the Merger set forth in Article VII not being satisfied or in a
material violation of any provision of this Agreement, except, in every case, as
may be required by applicable law or (v) agree to take, make any commitment to
take, or adopt any resolutions of its board of directors in support of, any of
the actions prohibited by this Section 5.3.
ARTICLE VI
ADDITIONAL AGREEMENTS
6.1 Regulatory Matters. (a) Fifth Third and Old Kent shall promptly prepare
and file with the SEC the Joint Proxy Statement and Fifth Third shall promptly
prepare and file with the SEC the S-4, in which the Joint Proxy Statement will
be included as a prospectus. Each of Fifth Third and Old Kent shall use their
reasonable best efforts to have the S-4 declared effective under the Securities
Act as promptly as practicable after such filing, and Fifth Third and Old Kent
shall thereafter mail or deliver the Joint Proxy Statement to their respective
stockholders. Fifth Third shall also use its reasonable best efforts to obtain
all necessary state securities law or "Blue Sky" permits and approvals required
to carry out the transactions contemplated by this Agreement, and Old Kent shall
furnish all information concerning Old Kent and the holders of Old Kent Capital
Stock as may be reasonably requested in connection with any such action.
(b) The parties hereto shall cooperate with each other and use their
reasonable best efforts to promptly prepare and file all necessary
documentation, to effect all applications, notices, petitions and filings, to
obtain as promptly as practicable all permits, consents, approvals and
authorizations of all third parties and Governmental Entities which are
necessary or advisable to consummate the transactions contemplated by this
Agreement (including, without limitation, the Merger), and to comply with the
terms and conditions of all such permits, consents, approvals and authorizations
of all such Governmental Entities. Fifth Third and Old Kent shall have the right
to review in advance, and, to the extent practicable, each will consult the
other on, in each case subject to applicable laws relating to the exchange of
information, all the information relating to Old Kent or Fifth Third, as the
case may be, and any of their respective Subsidiaries, which appear in any
filing made with, or written materials submitted to, any third party or any
Governmental Entity in connection with the transactions contemplated by this
Agreement. In exercising the foregoing right, each of the parties hereto shall
act reasonably and as promptly as practicable. The parties hereto agree that
they will consult with each other with respect to the obtaining of all permits,
consents, approvals and authorizations of all third parties and Governmental
Entities necessary or advisable to consummate the transactions contemplated by
this Agreement and each party will keep the other apprised of the status of
matters relating to completion of the transactions contemplated herein.
(c) Fifth Third and Old Kent shall, upon request, furnish each other with
all information concerning themselves, their Subsidiaries, directors, officers
and stockholders and such other matters as may be reasonably necessary or
advisable in connection with the Joint Proxy Statement, the S-4 or any other
statement, filing, notice or application made by or on behalf of Fifth Third,
Old Kent or any of their respective Subsidiaries to any Governmental Entity in
connection with the Merger and the other transactions contemplated by this
Agreement.
(d) Fifth Third and Old Kent shall promptly advise each other upon
receiving any communication from any Governmental Entity whose consent or
approval is required for consummation of the transactions contemplated by this
Agreement that causes such party to believe that there is a reasonable
likelihood that
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any Requisite Regulatory Approval will not be obtained or that the receipt of
any such approval will be materially delayed.
6.2 Access to Information. (a) Upon reasonable notice and subject to
applicable laws relating to the exchange of information, Fifth Third and Old
Kent shall, and shall cause each of its Subsidiaries to, afford to the officers,
employees, accountants, counsel and other representatives of the other party,
access, during normal business hours during the period prior to the Effective
Time, to all its properties, books, contracts, commitments and records, and,
during such period, the parties shall, and shall cause its Subsidiaries to, make
available to the other party (i) a copy of each report, schedule, registration
statement and other document filed or received by it during such period pursuant
to the requirements of federal securities laws or federal or state banking laws
(other than reports or documents which such party is not permitted to disclose
under applicable law) and (ii) all other information concerning its business,
properties and personnel as the other party may reasonably request. None of the
parties nor any of their Subsidiaries shall be required to provide access to or
to disclose information where such access or disclosure would jeopardize the
attorney-client privilege of such party or its Subsidiaries or contravene any
law, rule, regulation, order, judgment, decree, fiduciary duty or binding
agreement entered into prior to the date of this Agreement. The parties hereto
will make appropriate substitute disclosure arrangements under circumstances in
which the restrictions of the preceding sentence apply.
(b) Except as provided in Section 9.9, Fifth Third and Old Kent shall hold,
and shall cause its respective Subsidiaries and its and its Subsidiaries'
directors, officers, employees, agents, consultants and advisors to hold, all
information furnished by or on behalf of the other party or any of such party's
Subsidiaries or representatives pursuant to Section 6.2(a) in confidence to the
extent required by, and in accordance with, the provisions of the
confidentiality agreement, dated November 14, 2000, between the parties.
(c) No investigation by either of the parties or their respective
representatives shall affect the representations and warranties of the other set
forth herein.
6.3 Stockholder Approval. Each of Fifth Third and Old Kent shall call a
meeting of its stockholders to be held in the third week of March, 2001, or as
soon thereafter as reasonably practicable, for the purpose of voting upon the
requisite stockholder approvals required in connection with this Agreement and
the Merger, and each shall use its reasonable best efforts to cause such
meetings to occur within such period. The Board of Directors of each of Fifth
Third and Old Kent shall use its reasonable best efforts to obtain from the
stockholders of Fifth Third and Old Kent, as the case may be, the vote in favor
of the adoption of this Agreement required by the MBCA, in the case of Old Kent,
and in favor of the adoption of this Agreement required by the OGCL and the
issuance of shares of Fifth Third Common Stock pursuant to the Merger, in the
case of Fifth Third (it being understood and agreed that the obligations under
this sentence shall not be altered by the commencement, proposal, disclosure or
communication of any Acquisition Transaction (as defined in the Old Kent Option
Agreement)).
6.4 Legal Conditions to Merger. Each of Fifth Third, Merger Sub and Old
Kent shall, and shall cause its Subsidiaries to, use their reasonable best
efforts (a) to take, or cause to be taken, all actions necessary, proper or
advisable to comply promptly with all legal requirements that may be imposed on
such party or its Subsidiaries with respect to the Merger and, subject to the
conditions set forth in Article VII hereof, to consummate the transactions
contemplated by this Agreement, and (b) to obtain (and to cooperate with the
other party to obtain) any material consent, authorization, order or approval
of, or any exemption by, any Governmental Entity and any other third party that
is required to be obtained by Old Kent or Fifth Third or any of their respective
Subsidiaries in connection with the Merger and the other transactions
contemplated by this Agreement.
6.5 Affiliates; Publication of Combined Financial Results. (a) Each of
Fifth Third and Old Kent shall use its reasonable best efforts to cause each
director, executive officer and other person who is an "affiliate" (for purposes
of Rule 145 under the Securities Act and for purposes of qualifying the Merger
for "pooling of interests" accounting treatment) of such party to deliver to the
other party hereto, as soon as practicable after the date of this Agreement, and
prior to the date of the stockholders' meeting called by Old Kent to approve
this Agreement, a written agreement, in the form of Exhibit 6.5(a)(1) or (2), as
applicable, hereto.
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(b) Fifth Third shall use its best efforts to publish as promptly as
reasonably practical, but in no event later than July 31, 2001, combined sales
and net income figures as contemplated by and in accordance with the terms of
SEC Accounting Series Release No. 135.
6.6 Stock Exchange Listing. Fifth Third shall cause the shares of Fifth
Third Common Stock, to be issued in the Merger to be approved for listing on the
NASDAQ, subject to official notice of issuance, prior to the Effective Time.
6.7 Employee Benefit Plans. (a) Until December 31, 2001, the benefits to be
provided to employees of Old Kent and its Subsidiaries as of the Effective Time
("Covered Employees") shall be substantially similar, in the aggregate, to the
benefits provided under the benefit plans and programs provided by Old Kent or
its Subsidiaries, as the case may be, to such employees as of the date hereof.
From and after December 31, 2001, the benefits to be provided to the Covered
Employees shall be the benefit plans (other than Fifth Third's defined benefit
pension plan which has been frozen) and programs provided to similarly situated
employees of Fifth Third. Fifth Third shall, from and after the Effective Time,
(i) comply with Old Kent Benefit Plans and other contractual commitments of Old
Kent to its current and former employees in accordance with their terms and
honor all employee benefit obligations to current and former employees of Old
Kent and its Subsidiaries under Old Kent Benefit Plans or the applicable
contractual commitment, (ii) provide Covered Employees credit for the most
recent period of uninterrupted service (including any bridging or prior service
credit, without regard to whether there has been an interruption in service,
solely to the extent provided by Old Kent and its Subsidiaries as of the date
hereof) with Old Kent or any of its Subsidiaries (and their predecessors) prior
to the Effective Time under employee benefit plans of Fifth Third or its
Subsidiaries (other than Fifth Third's noncontributory cash balance defined
benefit pension plan), (iii) cause any and all pre-existing condition
limitations (to the extent such limitations did not apply to a pre-existing
condition under comparable Old Kent Plans) and eligibility waiting periods under
group health plans of Fifth Third to be waived with respect to Covered Employees
(and their eligible dependents) who become participants in such group health
plans and (iv) assume, or cause its applicable Subsidiary to assume, all
contracts and agreements with employees of Old Kent, which agreements were
entered into prior to the date hereof and which are listed on Section 5.2 of the
Old Kent Disclosure Schedule, and all obligations thereunder. From and after the
Effective Time until December 31, 2001, Fifth Third shall honor all vacation and
paid time off of the Covered Employees accrued as of the Effective Time, in
accordance with Old Kent policy as in effect on the date hereof. From and after
the Effective Time, a Covered Employee who is terminated (as defined in the
applicable Old Xxxx xxxxxxxxx plan or policy as in effect on the date hereof)
during the period commencing at the Effective Time and ending on the 12-month
anniversary thereof shall be entitled to receive the greater of (i) the
severance payments and benefits under the applicable Old Xxxx xxxxxxxxx plan or
policy as in effect on the date hereof (without amendment on or after the
Effective Time) and (ii) the severance payments and benefits under Fifth Third's
severance plan or policy as in effect on the date of termination of such Covered
Employee.
(b) Nothing in this Section 6.7 shall be interpreted as preventing the
Surviving Corporation or Fifth Third from amending, modifying or terminating any
Fifth Third Benefit Plans or other contracts, arrangements, commitments or
understandings, in accordance with their terms and applicable law.
6.8 Indemnification; Directors' and Officers' Insurance. (a) In the event
of any threatened or actual claim, action, suit, proceeding or investigation,
whether civil, criminal or administrative, including, without limitation, any
such claim, action, suit, proceeding or investigation in which any individual
who is now, or has been at any time prior to the date of this Agreement, or who
becomes prior to the Effective Time, a director or officer or employee of Old
Kent or any of its Subsidiaries (the "Indemnified Parties"), is, or is
threatened to be, made a party based in whole or in part on, or arising in whole
or in part out of, or pertaining to (i) the fact that he is or was a director,
officer or employee of Old Kent or any of its Subsidiaries or (ii) this
Agreement, the Old Kent Option Agreement or any of the transactions contemplated
hereby or thereby, whether in any case asserted or arising before or after the
Effective Time, the parties hereto agree to cooperate and use their best efforts
to defend against and respond thereto. It is understood and agreed that after
the Effective Time, Fifth Third shall indemnify and hold harmless, as and to the
fullest extent provided by applicable law, the Old Kent Articles, the Old Kent
Bylaws and any agreement existing as
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of the date hereof, each such Indemnified Party against any losses, claims,
damages, liabilities, costs, expenses (including reimbursement for reasonable
fees and expenses incurred in advance of the final disposition of any claim,
suit, proceeding or investigation to each Indemnified Party as provided by the
Old Kent Articles, the Old Kent Bylaws and any agreement existing as of the date
hereof), judgments, fines and amounts paid in settlement in connection with any
such threatened or actual claim, action, suit, proceeding or investigation.
(b) Fifth Third shall use its reasonable best efforts to cause the
individuals serving as officers and directors of Old Kent or any of its
Subsidiaries immediately prior to the Effective Time to be covered for a period
of six (6) years from the Effective Time by the directors' and officers'
liability insurance policy maintained by Old Kent (provided that Fifth Third may
substitute therefor policies of at least the same coverage and amounts
containing terms and conditions which are not less advantageous than such
policy) with respect to acts or omissions occurring prior to the Effective Time
which were committed by such officers and directors in their capacity as such;
provided that in no event shall Fifth Third be required to expend in any one
year an amount in excess of 200% of the annual premiums currently paid by Old
Kent (which current amount is set forth in Section 6.8 of the Old Kent
Disclosure Schedule) for such insurance (the "Insurance Amount"), and provided
further that if Fifth Third is unable to maintain such policy (or such
substitute policy) as a result of the preceding proviso, Fifth Third shall use
its reasonable best efforts to obtain as much comparable insurance as is
available for the Insurance Amount.
(c) The provisions of this Section 6.8 shall survive the Effective Time and
are intended to be for the benefit of, and shall be enforceable by, each
Indemnified Party and his or her heirs and representatives.
6.9 Additional Agreements. In case at any time after the Effective Time any
further action is necessary or desirable to carry out the purposes of this
Agreement (including, without limitation, any merger between a Subsidiary of
Fifth Third, on the one hand, and a Subsidiary of Old Kent, on the other) or to
vest the Surviving Corporation with full title to all properties, assets,
rights, approvals, immunities and franchises of any of the parties to the
Merger, the proper officers and directors of each party to this Agreement and
their respective Subsidiaries shall take all such necessary action as may be
reasonably requested by, and at the sole expense of, Fifth Third.
6.10 Advice of Changes. Fifth Third, Old Kent and Merger Sub shall each
promptly advise the other of any change or event (i) having a Material Adverse
Effect on it or (ii) which it believes would or would be reasonably likely to
cause or constitute a material breach of any of its representations, warranties
or covenants contained herein.
6.11 Dividends. After the date of this Agreement, each of Fifth Third and
Old Kent shall coordinate with the other the declaration of any dividends in
respect of Fifth Third Common Stock and Old Kent Common Stock and the record
dates and payment dates relating thereto, it being the intention of the parties
hereto that holders of Old Kent Common Stock shall not receive two dividends, or
fail to receive one dividend, for any quarter with respect to their shares of
Old Kent Common Stock and any shares of Fifth Third Common Stock any such holder
receives in exchange therefor in the Merger (such holders to receive four
dividends during 2001).
6.12 Exemption from Liability Under Section 16(b). Assuming that Old Kent
delivers to Fifth Third the Section 16 Information (as defined below) in a
timely fashion, the Board of Directors of Fifth Third, or a committee of
Non-Employee Directors thereof (as such term is defined for purposes of Rule
16b-3(d) under the Exchange Act), shall adopt a resolution providing that the
receipt by Old Kent Insiders of Fifth Third Common Stock in exchange for shares
of Old Kent Common Stock, and of options on Fifth Third Common Stock upon
conversion of options on Old Kent Common Stock, in each case pursuant to the
transactions contemplated hereby and to the extent such securities are listed in
the Section 16 Information, are intended to be exempt from liability pursuant to
Section 16(b) under the Exchange Act. "Section 16 Information" shall mean
information accurate in all respects regarding Old Kent Insiders, the number of
shares of Old Kent Common Stock held by each such Old Kent Insider and expected
to be exchanged for Fifth Third Common Stock in the Merger, and the number and
description of the options on Old Kent Common Stock held by each such Old Kent
Insider and expected to be converted into options on Fifth Third Common Stock in
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connection with the Merger. The "Old Kent Insiders" shall mean those officers
and directors of Old Kent who are subject to the reporting requirements of
Section 16(a) of the Exchange Act and who are listed in the Section 16
Information.
6.13 Directorships. Fifth Third shall take such actions as may be
reasonably required to cause its Board of Directors to be expanded by three
members and to appoint three members of Old Kent's Board of Directors to the
Fifth Third Board of Directors. In addition, Fifth Third shall extend offers to
all individuals who are members of the Board of Directors of Old Kent
immediately prior to the Effective Time to become members of the Board of
Directors of Fifth Third's principal bank located in Michigan (or any successor
thereto) immediately after the Effective Time.
6.14 Aggregate Capitalization. Old Kent will not take any action, or fail
to take any action, that results in the aggregate number of shares of Old Kent
Common Stock outstanding immediately prior to the Effective Time (including all
shares of Old Kent Common Stock subject to Old Kent Rights other than the Old
Kent Option Agreement, but not including shares of Old Kent Common Stock held in
treasury) exceeding 150,000,000.
6.15 Community Commitments. From and after the Effective Time, Fifth Third
shall maintain the community commitments undertaken by Old Kent Bank
Subsidiaries prior to the date hereof and set forth in Section 6.15 of the Old
Kent Disclosure Schedule in the communities currently served by such banks.
6.16 Executive Benefit Trust. Notwithstanding anything to the contrary, as
soon as practicable after the execution of this Agreement, Old Kent will take
such actions as required under the terms of the Old Kent Executive Severance
Agreements and other executive non-qualified deferred compensation plans,
including, but not limited to, the funding of the Old Kent Financial Corporation
Executive Benefit Trust (a rabbi trust) as required in such agreements, to the
extent not already funded.
ARTICLE VII
CONDITIONS PRECEDENT
7.1 Conditions to Each Party's Obligation To Effect the Merger. The
respective obligations of the parties to effect the Merger shall be subject to
the satisfaction at or prior to the Effective Time of the following conditions:
(a) Stockholder Approvals. This Agreement shall have been adopted by the
requisite affirmative vote of the holders of Old Kent Common Stock entitled to
vote thereon and the requisite affirmative vote of the holders of Fifth Third
Common Stock entitled to vote thereon, and the issuance of shares of Fifth Third
Common Stock pursuant to the Merger shall have been approved by the requisite
vote of stockholders of Fifth Third.
(b) NASDAQ Listing. The shares of Fifth Third Common Stock which shall be
issued to the stockholders of Old Kent upon consummation of the Merger shall
have been authorized for listing on the NASDAQ, subject to official notice of
issuance.
(c) Regulatory Approvals. All regulatory approvals required to consummate
the transactions contemplated hereby, including the Merger, shall have been
obtained and shall remain in full force and effect and all statutory waiting
periods in respect thereof shall have expired (all such approvals and the
expiration of all such waiting periods being referred to herein as the
"Requisite Regulatory Approvals").
(d) S-4. The S-4 shall have become effective under the Securities Act and
no stop order suspending the effectiveness of the S-4 shall have been issued and
no proceedings for that purpose shall have been initiated or threatened by the
SEC.
(e) No Injunctions or Restraints; Illegality. No order, injunction or
decree issued by any court or agency of competent jurisdiction or other legal
restraint or prohibition (an "Injunction") preventing the consummation of the
Merger or any of the other transactions contemplated by this Agreement shall be
in effect. No statute, rule, regulation, order, Injunction or decree shall have
been enacted, entered, promulgated
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or enforced by any Governmental Entity which prohibits, materially restricts or
makes illegal consummation of the Merger.
(f) Federal Tax Opinion. The parties hereto shall have received the
opinions of their respective counsel, Cleary, Gottlieb, Xxxxx & Xxxxxxxx and
Wachtell, Lipton, Xxxxx & Xxxx, in form and substance reasonably satisfactory to
Fifth Third and Old Kent, as the case may be, dated as of the Closing Date,
substantially to the effect that, on the basis of facts, representations and
assumptions set forth in each such opinion which are consistent with the state
of facts existing at the Effective Time, the Merger will be treated as a
reorganization within the meaning of Section 368(a) of the Code and Old Kent,
Fifth Third and Merger Sub will each be a party to the reorganization within the
meaning of Section 368(b) of the Code. In rendering such opinions, counsel may
require and rely upon representations contained in certificates of officers of
Fifth Third, Merger Sub, Old Kent and others, reasonably satisfactory in form
and substance to such counsel.
(g) Pooling of Interests. Fifth Third and Old Kent shall each have received
a letter from their respective independent accountants addressed to Old Kent or
Fifth Third, as the case may be, to the effect that the Merger will qualify for
"pooling of interests" accounting treatment.
7.2 Conditions to Obligations of Fifth Third and Merger Sub. The obligation
of Fifth Third and Merger Sub to effect the Merger is also subject to the
satisfaction, or waiver by Fifth Third, at or prior to the Effective Time, of
the following conditions:
(a) Representations and Warranties. The representations and warranties of
Old Kent set forth in this Agreement shall be true and correct in all material
respects as of the date of this Agreement and (except to the extent such
representations and warranties speak as of an earlier date) as of the Closing
Date as though made on and as of the Closing Date; provided, however, that for
purposes of this paragraph, such representations and warranties shall be deemed
to be true and correct unless the failure or failures of such representations
and warranties to be so true and correct, either individually or in the
aggregate, and without giving effect to any qualification as to materiality or
Material Adverse Effect set forth in such representations or warranties, will
have or are reasonably likely to have a Material Adverse Effect on Old Kent or
the Surviving Corporation. Fifth Third shall have received a certificate signed
on behalf of Old Kent by the Chief Executive Officer and the Chief Financial
Officer of Old Kent to the foregoing effect.
(b) Performance of Obligations of Old Kent. Old Kent shall have performed
in all material respects all obligations required to be performed by it under
this Agreement at or prior to the Closing Date, and Fifth Third shall have
received a certificate signed on behalf of Old Kent by the Chief Executive
Officer and the Chief Financial Officer of Old Kent to such effect.
7.3 Conditions to Obligations of Old Kent. The obligation of Old Kent to
effect the Merger is also subject to the satisfaction or waiver by Old Kent at
or prior to the Effective Time of the following conditions:
(a) Representations and Warranties. The representations and warranties of
Fifth Third and Merger Sub set forth in this Agreement shall be true and correct
in all material respects as of the date of this Agreement and (except to the
extent such representations and warranties speak as of an earlier date) as of
the Closing Date as though made on and as of the Closing Date; provided,
however, that for purposes of this paragraph, such representations and
warranties shall be deemed to be true and correct unless the failure or failures
of such representations and warranties to be so true and correct, either
individually or in the aggregate, and without giving effect to any qualification
as to materiality or Material Adverse Effect set forth in such representations
or warranties, will have or are reasonably likely to have a Material Adverse
Effect on Fifth Third or Merger Sub. Old Kent shall have received a certificate
signed on behalf of Fifth Third by the Chief Executive Officer and the Chief
Financial Officer of Fifth Third to the foregoing effect.
(b) Performance of Obligations of Fifth Third and Merger Sub. Fifth Third
and Merger Sub shall have performed in all material respects all obligations
required to be performed by it under this Agreement at or prior to the Closing
Date, and Old Kent shall have received a certificate signed on behalf of Fifth
Third by the Chief Executive Officer and the Chief Financial Officer of Fifth
Third to such effect.
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ARTICLE VIII
TERMINATION AND AMENDMENT
8.1 Termination. This Agreement may be terminated at any time prior to the
Effective Time, whether before or after approval of the matters presented in
connection with the Merger by the stockholders of Old Kent and Fifth Third:
(a) by mutual consent of Fifth Third and Old Kent in a written instrument,
if the Board of Directors of each so determines by a vote of a majority of the
members of its entire Board;
(b) by either the Board of Directors of Fifth Third or the Board of
Directors of Old Kent if any Governmental Entity that must grant a Requisite
Regulatory Approval has denied approval of the Merger and such denial has become
final and nonappealable or any Governmental Entity of competent jurisdiction
shall have issued a final nonappealable order permanently enjoining or otherwise
prohibiting the consummation of the transactions contemplated by this Agreement;
(c) by either Fifth Third or Old Kent if the approval of Fifth Third's
stockholders or Old Kent's stockholders required for the consummation of the
Merger and the other transactions contemplated hereby shall not have been
obtained by reason of the failure to obtain the required vote at the meetings of
the stockholders contemplated by Section 6.3, or at any adjournment or
postponement thereof at which a vote was taken;
(d) by either the Board of Directors of Fifth Third or the Board of
Directors of Old Kent if the Merger shall not have been consummated on or before
the first anniversary of the date hereof unless the failure of the Closing to
occur by such date shall be due to the failure of the party seeking to terminate
this Agreement to perform or observe the covenants and agreements of such party
set forth herein; or
(e) by either the Board of Directors of Fifth Third or the Board of
Directors of Old Kent (provided that the terminating party is not then in breach
of any representation, warranty, covenant or other agreement contained herein)
if there shall have been a breach of any of the covenants or agreements or any
of the representations or warranties set forth in this Agreement on the part of
Old Kent, in the case of a termination by Fifth Third, or Fifth Third, in the
case of a termination by Old Kent, which breach, either individually or in the
aggregate, would constitute, if occurring or continuing on the Closing Date, the
failure of the conditions set forth in Section 7.2 or 7.3, as the case may be,
and which is not cured within 45 days following written notice to the party
committing such breach or by its nature or timing cannot be cured prior to the
Closing Date.
8.2 Effect of Termination. In the event of termination of this Agreement by
either Fifth Third or Old Kent as provided in Section 8.1, this Agreement shall
forthwith become void and have no effect, and none of Fifth Third, Old Kent, any
of their respective Subsidiaries or any of the officers or directors of any of
them shall have any liability of any nature whatsoever hereunder, or in
connection with the transactions contemplated hereby, except that (i) Sections
6.2(b), 8.2, 9.2 and 9.3 shall survive any termination of this Agreement, and
(ii) notwithstanding anything to the contrary contained in this Agreement,
neither Fifth Third nor Old Kent shall be relieved or released from any
liabilities or damages arising out of its willful breach of any provision of
this Agreement.
8.3 Amendment. Subject to compliance with applicable law and Section
1.1(b), this Agreement may be amended by the parties hereto, by action taken or
authorized by their respective Boards of Directors, at any time before or after
approval of the matters presented in connection with the Merger by the
stockholders of Old Kent or Fifth Third, as the case may be. This Agreement may
not be amended except by an instrument in writing signed on behalf of each of
the parties hereto. The parties shall comply with the undertakings set forth in
Section 8.3 of the Old Kent Disclosure Schedule.
8.4 Extension; Waiver. Subject to compliance with applicable law, at any
time prior to the Effective Time, the parties hereto, by action taken or
authorized by their respective Board of Directors, may (a) extend the time for
the performance of any of the obligations or other acts of the other parties
hereto, (b) waive any inaccuracies in the representations and warranties
contained herein or in any document delivered pursuant hereto and (c) waive
compliance with any of the agreements or conditions contained herein. Any
agreement
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on the part of a party hereto to any such extension or waiver shall be valid
only if set forth in a written instrument signed on behalf of such party, but
such extension or waiver or failure to insist on strict compliance with an
obligation, covenant, agreement or condition shall not operate as a waiver of,
or estoppel with respect to, any subsequent or other failure.
ARTICLE IX
GENERAL PROVISIONS
9.1 Closing. Subject to the terms and conditions of this Agreement, the
closing of the Merger (the "Closing") will take place at a place to be specified
by the parties, at 10:00 a.m. on a date which shall be the first business day
occurring at least ten business days after the satisfaction or waiver (subject
to applicable law) of the latest to occur of the conditions set forth in Article
VII hereof (other than those conditions that by their nature are required to be
satisfied or waived at the Closing), or as otherwise mutually agreed by the
parties (the "Closing Date"). The parties agree to use their reasonable best
efforts to cause the Closing Date to occur during the first week of April, 2001.
9.2 Nonsurvival of Representations, Warranties and Agreements. None of the
representations, warranties, covenants and agreements in this Agreement or in
any instrument delivered pursuant to this Agreement (other than the Old Kent
Option Agreement, which shall terminate in accordance with its terms) shall
survive the Effective Time, except for Section 6.8 and for those other covenants
and agreements contained herein and therein which by their terms apply or are to
be performed in whole or in part after the Effective Time.
9.3 Expenses. All costs and expenses incurred in connection with this
Agreement and the transactions contemplated hereby shall be paid by the party
incurring such expense, provided, however, that the costs and expenses of
printing and mailing the Joint Proxy Statement, and all filing and other fees
paid to the SEC in connection with the Merger, shall be borne equally by Fifth
Third and Old Kent.
9.4 Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered personally, telecopied (with
confirmation), mailed by registered or certified mail (return receipt requested)
or delivered by an express courier (with confirmation) to the parties at the
following addresses (or at such other address for a party as shall be specified
by like notice):
(a) if to Fifth Third or Merger Sub, to:
Fifth Third Bancorp
00 Xxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: General Counsel
Telecopier: (000) 000-0000
with a copy to:
Cleary, Gottlieb, Xxxxx & Xxxxxxxx
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Xxxx X. Xxxx, Esq.
Telecopier: (000) 000-0000
and
(b) if to Old Kent, to:
Old Kent Financial Corporation
000 Xxxx Xxxxxx, XX
Xxxxx Xxxxxx, Xxxxxxxx 00000
Attention: Senior Vice President and Legal Coordinator
Telecopier: 000-000-0000
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with a copy to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Telecopier: (000) 000-0000
9.5 Interpretation. When a reference is made in this Agreement to Sections,
Exhibits or Schedules, such reference shall be to a Section of or Exhibit or
Schedule to this Agreement unless otherwise indicated. The table of contents and
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement. Whenever
the words "include," "includes" or "including" are used in this Agreement, they
shall be deemed to be followed by the words "without limitation." Nothing
contained herein shall require any party hereto or the Board of Directors of
such party to take or refrain from taking any action in violation of applicable
law. The Old Kent Disclosure Schedule and the Fifth Third Disclosure Schedule,
as well as all other schedules and all exhibits hereto, shall be deemed part of
this Agreement and included in any reference to this Agreement.
9.6 Counterparts. This Agreement may be executed in counterparts, all of
which shall be considered one and the same agreement and shall become effective
when counterparts have been signed by each of the parties and delivered to the
other parties, it being understood that all parties need not sign the same
counterpart.
9.7 Entire Agreement. This Agreement (including the documents and the
instruments referred to herein) together with the Old Kent Option Agreement
constitutes the entire agreement and supersedes all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter hereof.
9.8 Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of New York, without regard to any
applicable conflicts of law principles (except to the extent that mandatory
provisions of federal or state law apply).
9.9 Publicity. Neither Fifth Third nor Old Kent shall, and neither Fifth
Third nor Old Kent shall permit any of its Subsidiaries to, issue or cause the
publication of any press release or other public announcement with respect to,
or otherwise make any public statement concerning, the transactions contemplated
by this Agreement without the consent of Old Kent (which consent shall not be
unreasonably withheld), in the case of a proposed announcement or statement by
Fifth Third, or Fifth Third, in the case of a proposed announcement or statement
by Old Kent (which consent shall not be unreasonably withheld); provided,
however, that a party may, without the prior consent of the other party (but
after prior consultation with the other party to the extent practicable under
the circumstances) issue or cause the publication of any press release or other
public announcement to the extent required by law or by the rules and
regulations of the NASDAQ and the New York Stock Exchange, Inc.
9.10 Assignment; Third Party Beneficiaries. Neither this Agreement nor any
of the rights, interests or obligations shall be assigned by any of the parties
hereto (whether by operation of law or otherwise) without the prior written
consent of the other parties. Subject to the preceding sentence, this Agreement
will be binding upon, inure to the benefit of and be enforceable by the parties
and their respective successors and assigns. Except as otherwise specifically
provided in Section 6.8, this Agreement (including the documents and instruments
referred to herein) is not intended to confer upon any person other than the
parties hereto any rights or remedies hereunder.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
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IN WITNESS WHEREOF, Old Kent Financial Corporation, Fifth Third Bancorp.
and Fifth Third Financial Corporation have caused this Agreement to be executed
by their respective officers thereunto duly authorized as of the date first
above written.
OLD KENT FINANCIAL CORPORATION
By: /s/ XXXXX X. XXXXXX
---------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chairman of the Board, President
and Chief Executive Officer
FIFTH THIRD BANCORP
By: /s/ XXXX X. XXXXXX
---------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Chief Financial Officer, Executive
Vice President and Treasurer
FIFTH THIRD FINANCIAL CORPORATION
By: /s/ XXXX X. XXXXXX
---------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Executive Vice President and
Chief Financial Officer
Signature Page to Agreement and Plan of Merger
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