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Exhibit 2
AGREEMENT OF MERGER AND PLAN OF REORGANIZATION
THIS AGREEMENT OF MERGER AND PLAN OF REORGANIZATION (this
"Agreement") is made and entered into this 4th day of June, 2001, by and among
Camco Financial Corporation, a Delaware corporation ("Camco"), Camco Acquisition
Corp., an Ohio corporation formed by Camco for the purpose of facilitating the
business combination ("Merger Sub"), Advantage Bank, a savings bank organized
under Chapter 1161 of the Ohio Revised Code ("Advantage"), Columbia Financial of
Kentucky, Inc., an Ohio corporation ("CFKY"), and Columbia Federal Savings Bank,
a federal savings bank organized under the laws of the United States of America
(the "Bank");
WITNESSETH:
WHEREAS, the Boards of Directors of Camco, Advantage, CFKY and
the Bank have determined that it is in the best interests of their respective
companies and their respective shareholders to enter into certain business
combination transactions in which Merger Sub will merge with and into CFKY (the
"Corporate Merger") followed by the merger of CFKY, as the surviving
corporation, with and into Camco (the "Holding Company Merger"), and the Bank
will merge with and into Advantage (the "Bank Merger");
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and agreements hereinafter set forth, Camco, Merger Sub,
Advantage, CFKY and the Bank, each intending to be legally bound, hereby agree
as follows:
ARTICLE ONE
THE MERGERS
SECTION 1.01. THE MERGERS. (a) Subject to the terms and
conditions of this Agreement, and pursuant to the provisions of the Ohio General
Corporation Law (the "OGCL") and applicable federal laws and regulations, Merger
Sub shall merge with and into CFKY (the "Corporate Merger") in accordance with
the provisions of Section 1701.78 of the OGCL and the separate corporate
existence of Merger Sub shall cease at the Effective Time (hereinafter defined).
CFKY shall be the surviving corporation of the Corporate Merger (the "Surviving
Corporation") and shall continue its corporate existence under the laws of the
State of Ohio. From and after the Effective Time, the Surviving Corporation
shall possess all assets and property of every description, and every interest
in the assets and property, wherever located, and the rights, privileges,
immunities, powers, franchises and authority, of a public as well as a private
nature, of Merger Sub and CFKY and all obligations belonging or due to each of
them.
(b) Immediately following the Corporate Merger, Camco shall
cause the Holding Company Merger to be completed.
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(c) Immediately following the Holding Company Merger, Camco
shall cause the Bank Merger to be completed in accordance with the Agreement of
Merger attached hereto as Exhibit "A" (the "Bank Merger Agreement").
(d) With the consent of CFKY, which consent shall not be
unreasonably withheld, Camco, Merger Sub and Advantage may at any time change
the method of effecting the combinations with CFKY and the Bank (including,
without limitation, the provisions of this Article One) if and to the extent
Camco deems such change to be desirable; provided, however, that no such change
shall (i) alter or change the amount or composition of the Per Share Merger
Consideration, or (ii) be likely to materially delay or jeopardize receipt of
any required regulatory approvals or materially delay or prevent the
satisfaction of any conditions to the Closing. CFKY and the Bank shall, if
requested by Camco, enter into one or more amendments to this Agreement prior to
the Effective Time in order to effect any such change.
SECTION 1.02. CONVERSION AND CANCELLATION OF CFKY SHARES. At
the Effective Time and as a result of the Corporate Merger, automatically and
without further act of Camco, Merger Sub, Advantage, CFKY, the Bank or the
holders of CFKY Shares (hereinafter defined), the following shall occur:
(a) Subject to adjustment as set forth in this Section
1.02(a), each CFKY Share issued and outstanding shall be cancelled and
extinguished and, in substitution and exchange therefor, the holders thereof
shall be entitled, subject to and upon compliance with Article Two of this
Agreement, to receive from Camco Six and 90/100 Dollars ($6.90) and .3681 share
of common stock of Camco (the "Per Share Merger Consideration") without any
interest thereon from the Effective Time until the time of payment.
(i) The Camco common share portion of the Per Share
Merger Consideration (the "Camco Share
Consideration") shall be adjusted to reflect any
stock split, stock dividend or distributions in, or
combinations or subdivisions of, Camco common shares,
which is paid, or for which a record date occurs,
between the date hereof and the Effective Time. The
Camco Share Consideration may be adjusted, in the
discretion of Camco, pursuant to Section 7.03(d) of
this Agreement.
(ii) No fractional shares will be issued, and cash
will be paid in lieu of fractional shares based on
the average of the bid and asked price quotes of the
Camco common shares as reported on The Nasdaq
National Market System ("Nasdaq") by a mutually
agreed upon authoritative source on the last day of
trading of Camco common shares prior to the Effective
Time ("the Camco Market Value").
(iii) Subject to Section 8.01(d)(ii), if the
Environmental Costs Estimate (hereinafter defined)
exceeds $150,000, the Per Share Merger Consideration
shall be reduced by an amount equal to the quotient
of (x) the amount by which the Environmental Costs
Estimate exceeds $150,000,
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divided by (y) the number of issued and outstanding
CFKY Shares on a fully-diluted basis, giving effect
to the exercise of all outstanding options under the
CFKY Option Plan (hereinafter defined).
(iv) Subject to Section 8.01(d)(ii), if the Benefit
Plan Cost (hereinafter defined) exceeds $25,000 in
the aggregate, the Per Share Merger Consideration
shall be adjusted by an amount equal to the quotient
of (x) the amount by which the Benefit Plan Cost
exceeds $25,000, divided by (y) the number of issued
and outstanding CFKY Shares on a fully-diluted
basis, giving effect to the exercise of all
outstanding options under the CFKY Option Plan.
(v) The adjustments to the Per Share Merger
Consideration pursuant to clauses (iii) and (iv)
above shall be made only to the extent that the
Environmental Costs Estimate and the Benefit Plan
Cost are identified prior to the earlier of (A)
September 15, 2001, or (B) the effective date of the
Registration Statement (hereinafter defined).
(b) Shares of Merger Sub issued and outstanding before the
Effective Time shall remain issued and outstanding after the Effective Time and
shall automatically be converted into common shares of the Surviving
Corporation.
(c) Any treasury shares held by CFKY and any CFKY shares owned
by Camco for its own account shall be cancelled and retired at the Effective
Time and no consideration shall be issued in exchange therefor.
SECTION 1.03. CFKY OPTIONS. At the Effective Time, each
outstanding option under the Columbia Financial of Kentucky, Inc. 1999 Stock
Option and Incentive Plan (the "CFKY Option Plan") shall be converted into the
right to receive a cash payment from Camco equal to the difference between (a)
the value of the Per Share Merger Consideration based on the Camco Market Value
at the Effective Time and (b) the exercise price per share of such option then
exercisable. Any payments made to option holders in accordance with the
foregoing shall be subject to applicable federal and state tax withholding
obligations.
SECTION 1.04. CLOSING AND EFFECTIVE TIME. The closing of the
Corporate Merger pursuant to this Agreement (the "Closing") shall take place at
a date and time agreed upon by Camco and CFKY as soon as practicable after the
satisfaction or waiver of the last of the conditions to the Corporate Merger set
forth in Article Seven of this Agreement to be satisfied. On the day of the
Closing, Camco, Merger Sub and CFKY shall cause a Certificate of Merger in
respect of the Corporate Merger to be filed in the Office of the Ohio Secretary
of State. The Corporate Merger shall become effective at the date and time
indicated on such filing (the "Effective Time").
SECTION 1.05. ADOPTION BY SHAREHOLDERS. This Agreement shall
be submitted for adoption by the shareholders of CFKY entitled to vote at a
meeting of shareholders called for
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such purpose to be held at a time, date and place to be determined by the board
of directors of CFKY, subject to applicable laws and regulations (the "CFKY
Shareholders Meeting").
SECTION 1.06. REGULATORY FILINGS. (a) Camco shall prepare and
cause to be filed with the Office of Thrift Supervision (the "OTS"), the
Superintendent of the Division of Financial Institutions of the Ohio Department
of Commerce (the "Division") and the Federal Deposit Insurance Corporation (the
"FDIC") such applications, notices or other instruments as may be required for
approval of the Corporate Merger (collectively, the "Regulatory Applications").
(b) Camco shall prepare and cause to be filed with the
Securities and Exchange Commission (the "SEC") a registration statement on Form
S-4, or such other form as may be required by the SEC (the "Registration
Statement"), to register under the Securities Act of 1933 the Camco Shares to be
issued to shareholders of CFKY in the Corporate Merger and shall use all
reasonable efforts to have the Registration Statement declared effective by the
SEC as promptly as possible. The Registration Statement shall include a combined
proxy statement/prospectus serving as a prospectus of Camco for the Camco Shares
to be issued in the Corporate Merger (the "Prospectus") and the proxy statement
of CFKY for the CFKY Shareholders Meeting (the "Proxy Statement"). Camco and
CFKY shall cooperate in the preparation of the Proxy Statement and the
Prospectus and shall timely provide all information required to be included
therein.
(c) Camco shall provide copies of the Registration Statement
and all amendments to CFKY upon filing, keep CFKY reasonably informed as to the
status of the Registration Statement and provide CFKY with copies of all
comments from and responses to the SEC.
SECTION 1.07. ARTICLES OF INCORPORATION, CODE OF REGULATIONS
AND DIRECTORS AND OFFICERS OF THE SURVIVING CORPORATION. The Articles of
Incorporation and Code of Regulations of Merger Sub as in effect immediately
prior to the Effective Time shall be the Articles of Incorporation and Code of
Regulations of the Surviving Corporation. The directors and officers of Merger
Sub immediately prior to the Effective Time shall be the directors and officers
of the Surviving Corporation.
SECTION 1.08 NAME OF SURVIVING CORPORATION. The name of the
Surviving Corporation shall be Camco Acquisition Corp.
ARTICLE TWO
EXCHANGE OF CFKY SHARE CERTIFICATES
SECTION 2.01. SHARE CERTIFICATES IN THE MERGER. (a) As soon as
practicable after the Effective Time, Camco shall mail to each holder of record
of CFKY Shares a form letter of transmittal (the "Transmittal Letter") including
instructions for use in effecting the surrender for
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exchange of the certificates formerly evidencing the CFKY Shares cancelled and
extinguished as a result of the Corporate Merger (collectively, the
"Certificates" and individually, the "Certificate"). The Transmittal Letter
shall specify that the risk of loss and title to Certificates shall pass only
upon delivery of the Certificates as specified in the Transmittal Letter. Upon
surrender of a Certificate for cancellation, together with such Transmittal
Letter, duly executed, the holder of such Certificate shall be entitled to
receive in exchange therefor the Per Share Merger Consideration, and the
Certificate so surrendered shall thereafter be cancelled forthwith. Camco may,
at its election, designate an exchange agent to discharge its duties pursuant to
this Section 2.01.
(b) In the event that any holder of CFKY Shares is unable to
deliver the Certificate, Camco, in the absence of actual notice that any CFKY
Shares theretofore represented by any such Certificate have been acquired by a
bona fide purchaser, shall deliver to such holder the Per Share Merger
Consideration to which such holder is entitled in accordance with the provisions
of this Agreement upon the presentation of all of the following:
(i) Evidence to the reasonable satisfaction of Camco that
any such Certificate has been lost, wrongfully taken or
destroyed;
(ii) Such security or indemnity as may be reasonably
requested by Camco to indemnify and hold Camco and the
exchange agent harmless; and
(iii) Evidence to the reasonable satisfaction of Camco that
such person is the owner of the CFKY Shares theretofore
represented by each Certificate claimed by him to be lost,
wrongfully taken or destroyed and that he is the person who
would be entitled to present each such Certificate for
exchange pursuant to this Agreement.
(c) In the event that delivery of the Per Share Merger
Consideration provided for herein is to be made to a person other than the
person in whose name the Certificate surrendered is registered, the Certificate
so surrendered shall be properly endorsed or otherwise in proper form for
transfer and the person requesting such issuance or payment shall pay any
transfer or other taxes required by reason of the issuance or payment to a
person other than the registered holder of the Certificate surrendered or
establish to the satisfaction of Camco that such tax has been paid or is not
applicable. Until surrendered in accordance with the provisions of this Section
2.01, each Certificate shall represent for all purposes only the right to
receive the Per Share Merger Consideration.
(d) No dividends or other distributions declared after the
Effective Time with respect to Camco shares and payable to the holders of record
thereof after the Effective Time shall be paid to the holder of any
unsurrendered Certificate until the holder thereof shall surrender such
Certificate. After the subsequent surrender and exchange of a Certificate, the
record holder thereof shall be entitled to receive any such dividends or other
distributions,
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without any interest thereon, which theretofore had become payable with respect
to the Camco Shares represented by such Certificate.
(e) No consideration provided for herein shall be delivered by
Camco to any former holder of CFKY Shares in accordance with this Agreement
until such holder shall have complied with this Section 2.01.
(f) Any portion of the cash delivered to the exchange agent by
Camco for payment of the Per Share Merger Consideration that remains unclaimed
by the shareholders of CFKY for one year after the Effective Time shall be
returned to Camco. Any shareholders of CFKY who have not theretofore complied
with this Section 2.01 shall thereafter look only to Camco for the Per Share
Merger Consideration. If outstanding Certificates are not surrendered or the
payment for them is not claimed prior to the date on which such payment would
otherwise escheat to or become the property of any governmental entity, the
unclaimed items shall, to the extent permitted by abandoned property and any
other applicable law, become the property of Camco (and to the extent not in its
possession shall be delivered to it), free and clear of all claims or interest
of any person previously entitled to such property. Neither the exchange agent
nor any party to this Agreement shall be liable to any holder of any Certificate
for any consideration paid to a public official pursuant to applicable abandoned
property, escheat or similar laws. Camco and the exchange agent shall be
entitled to rely upon the stock transfer books of CFKY to establish the identity
of those persons entitled to receive the Per Share Merger Consideration, which
books shall be conclusive with respect thereto. In the event of a dispute with
respect to ownership of CKFY Shares, Camco and the exchange agent shall be
entitled to deposit any Per Share Merger Consideration represented thereby in
escrow with an independent third party and thereafter be relieved with respect
to any claims thereto.
SECTION 2.02. PAYMENT IN SATISFACTION OF RIGHTS. All payments
made upon the surrender of Certificates pursuant to this Article Two shall be
deemed to have been made in full satisfaction of all rights pertaining to the
CFKY shares theretofore evidenced by such Certificates.
SECTION 2.03. NO FURTHER REGISTRATION OR TRANSFER. After the
Effective Time, there shall be no further registration or transfer of CFKY
shares on the stock transfer books of CFKY. In the event that, after the
Effective Time, Certificates evidencing such CFKY shares are presented for
transfer, they shall be cancelled and exchanged as provided in this Article Two.
SECTION 2.04 DISSENTING CFKY SHARES. (a) Any holder of CFKY
Shares who seeks relief as a dissenting shareholder under Section 1701.85 of the
OGCL (a "Dissenting Shareholder") shall be entitled to payment for such CFKY
Shares only to the extent permitted by and in accordance with the provisions of
the OGCL; provided, however, that if, in accordance with the OGCL, any
Dissenting Shareholder shall forfeit such right to payment of the fair value of
the CFKY Shares held by such Dissenting Shareholder, such CFKY Shares shall
thereupon be deemed to have been converted into and to have become exchangeable
for, as of the Effective Time, the right to receive the Per Share Merger
Consideration. Dissenting Shareholders shall
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not, after the Effective Time, be entitled to vote for any purpose or receive
any dividends or other distributions and shall be entitled only to such rights
as are afforded pursuant to the OGCL.
(b) CFKY shall give Camco (i) prompt notice of any written
objections to the Corporate Merger and any written demands for the payment of
the fair value of any shares, withdrawals of such demands, and any other
instruments served pursuant to the OGCL received by CFKY and (ii) the
opportunity to participate in all negotiations and proceedings with respect to
such demands under the OGCL. CFKY shall not voluntarily make any payment with
respect to any demands for payment of fair value and shall not, except with the
prior written consent of Camco, settle or offer to settle any such demands.
ARTICLE THREE
REPRESENTATIONS AND WARRANTIES OF CFKY AND THE BANK
CFKY and the Bank represent and warrant to Camco, Merger Sub
and Advantage that each of the following statements is true and accurate in all
material respects, except as otherwise disclosed in a schedule provided by CFKY
and the Bank to Camco prior to the execution of this Agreement (the "CFKY
Disclosure Schedule"):
SECTION 3.01. ORGANIZATION AND STANDING. (a) CFKY is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Ohio and has the corporate power and authority to own or hold
under lease all of its properties and assets and to conduct its business and
operations as presently conducted. CFKY is registered as a savings and loan
holding company under the Home Owners' Loan Act (the "HOLA"). CFKY is in
compliance in all material respects with all applicable local, state or federal
laws and regulations.
(b) The Bank is a federal savings bank duly organized and
validly existing under the HOLA and has the corporate power and authority to own
or hold under lease all of its properties and assets and to conduct its business
and operations as presently conducted. The Bank is a member of the Federal Home
Loan Bank of Cincinnati (the "FHLB"). The deposit accounts of the Bank are
insured up to applicable limits by the Savings Association Insurance Fund
administered by the FDIC (the "SAIF"). The Bank is in compliance in all material
respects with all applicable local, state or federal laws and regulations.
SECTION 3.02. QUALIFICATION. CFKY and the Bank are each either
duly qualified to do business and in good standing in each jurisdiction in which
such qualification is required or the failure to so qualify would not have a
material adverse effect on the business of CFKY or the Bank.
SECTION 3.03. AUTHORITY. (a) This Agreement has been (i) duly
executed and delivered by CFKY and the Bank, (ii) approved by the boards of
directors of CFKY and the Bank, and (iii) adopted by CFKY as the sole
shareholder of the Bank.
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(b) The Bank Merger Agreement has been (i) duly executed and
delivered by the Bank, (ii) approved by the board of directors of the Bank, and
(iii) adopted by CFKY as the sole shareholder of the Bank.
(c) Subject to the adoption of this Agreement by the CFKY
shareholders and to the filing of all requisite Regulatory Applications and the
receipt of all requisite regulatory approvals, (i) subject to the amendment of
the Articles of Incorporation of CFKY and the Charter of the Bank with respect
to acquisitions of more than 10% of the outstanding common shares of CFKY, CFKY
has all requisite corporate power and authority to enter into this Agreement
and, to perform all of its obligations hereunder; (ii) subject to the amendment
of the Articles of Incorporation of CFKY and the Charter of the Bank with
respect to acquisitions of more than 10% of the outstanding common shares of
CFKY, the Bank has all requisite corporate power and authority to enter into
this Agreement and the Bank Merger Agreement and, to perform all of its
obligations hereunder and thereunder; (iii) the execution and delivery of this
Agreement and the Bank Merger Agreement and the consummation of the transactions
contemplated hereby and thereby have been duly authorized by all necessary
corporate action by CFKY and the Bank; and (iv) subject to applicable
bankruptcy, insolvency, reorganization and moratorium laws and other laws of
general applicability affecting the enforcement of creditors' rights generally,
and the effect of rules of law governing specific performance, injunctive relief
and other equitable remedies on the enforceability of such documents, and except
to the extent such enforceability may be limited by laws relating to safety and
soundness of insured depository institutions as set forth in 12 U.S.C.
ss.1818(b) or by the appointment of a conservator by the FDIC, (A) this
Agreement is the valid and binding agreement of CFKY, enforceable against CFKY
in accordance with its terms, and (B) this Agreement and the Bank Merger
Agreement are the valid and binding agreements of the Bank, enforceable against
the Bank in accordance with their terms.
SECTION 3.04. GOVERNING DOCUMENTS. (a) CFKY has made available,
or will promptly make available, to Camco true and accurate copies of its
Articles of Incorporation and Code of Regulations and has granted Camco access
to all records of all meetings and other corporate actions occurring before the
Effective Time by the shareholders, board of directors and committees of the
board of directors of CFKY, except those portions of the records of various
meetings that relate specifically to the consideration of the transactions
contemplated by this Agreement.
(b) The Bank has made available, or will promptly make
available, to Camco true and accurate copies of its Charter and Bylaws and has
granted or will grant to Camco access to all records of all meetings and other
corporate actions occurring before the Effective Time by the shareholders, board
of directors and committees of the board of directors of the Bank.
(c) The minute books of CFKY and the Bank contain, in all
material respects, complete and accurate records of all meetings and other
corporate actions of their shareholders, boards of directors and committees of
the boards of directors through May 15, 2001.
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SECTION 3.05. NO CONFLICTS. The execution and delivery of this
Agreement and, subject to the adoption of this Agreement by the shareholders of
CFKY, and subject to the regulatory filings and approvals referenced in Section
1.06 of this Agreement, the consummation of the transactions contemplated hereby
will not (a) subject to the amendment of the Articles of Incorporation of CFKY
and the Charter of the Bank with respect to acquisitions of more than 10% of the
outstanding common shares of CFKY and the Bank, conflict with or violate any
provision of or result in the breach of any provision of the Articles of
Incorporation or Code of Regulations of CFKY or the Charter or Bylaws of the
Bank; (b) conflict with or violate any provision of or result in the breach or
the acceleration of or entitle any party to accelerate (whether upon or after
the giving of notice or lapse of time or both) any obligation under, or
otherwise materially affect the terms of, any mortgage, lien, lease, agreement,
license, instrument, order, arbitration award, judgment or decree to which CFKY
or the Bank is a party or by which CFKY or the Bank or their property or assets
is bound; (c) require the consent of any party to any agreement or commitment to
which CFKY or the Bank is a party or by which CFKY or the Bank or their property
or assets is bound, the failure to obtain which could, individually or in the
aggregate with all the other failures to obtain required consents, have a
material adverse effect on the business, operations, condition (financial or
otherwise) or prospects of CFKY or the Bank; (d) result in the creation or
imposition of any lien, charge, pledge, security interest or other encumbrance
upon any property or assets of CFKY or the Bank; or (e) violate or conflict with
any applicable law, ordinance, rule or regulation, including, without
limitation, the rules and regulations of, or conditions of approval of
applications or notices to, the OTS, the Division or the FDIC.
SECTION 3.06. CONSENTS. No consent, approval, order or
authorization of, or registration, declaration or filing with, any governmental
authority is required in connection with the execution and delivery of this
Agreement by CFKY or the Bank or the consummation by CFKY or the Bank of the
transactions contemplated hereby, except for the filings, authorizations
consents or approvals referenced in Sections 1.05 and 1.06 of this Agreement.
SECTION 3.07. CAPITALIZATION. (a) The authorized capital of
CFKY consists solely of (i) 6,000,000 common shares, without par value (the
"CFKY Shares"), 2,625,950 of which are issued and outstanding and held of record
by approximately 1,900 shareholders, 45,500 of which are held in CFKY's treasury
and 252,600 of which are reserved for issuance upon the exercise of CFKY
options, and (ii) 1,000,000 preferred shares, without par value, none of which
is issued or outstanding. All of the outstanding CFKY Shares are duly
authorized, validly issued, fully paid and nonassessable, were issued in full
compliance with all applicable laws and regulations, and were not issued in
violation of the preemptive right of any shareholder of CFKY. Upon the exercise
of the CFKY options prior to the date of the Closing, the CFKY Shares to be
issued in connection with the exercise of such CFKY options will be duly
authorized, validly issued, fully paid and nonassessable, will be issued in full
compliance with all applicable laws and regulations, and will not be issued in
violation of the preemptive right of any shareholder of CFKY. Except for options
awarded under the CFKY Option Plan (the "CFKY Options"), there are no
outstanding subscription rights, options, conversion rights, warrants or other
agreements or commitments of any nature whatsoever (either firm or conditional)
obligating CFKY to issue, deliver or sell, cause to be issued, delivered or
sold, or restricting CFKY from selling any
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additional CFKY Shares, or obligating CFKY to grant, extend or enter into any
such agreement or commitment.
(b) The authorized capital of the Bank consists solely of
10,000,000 common shares without par value, 100 of which are issued and
outstanding and held of record by CFKY. All of the outstanding common shares of
the Bank are duly authorized, validly issued, fully paid and nonassessable, were
issued in full compliance with all applicable laws and regulations, and were not
issued in violation of the preemptive right of any other person or entity. There
are no outstanding subscription rights, options, conversion rights, warrants or
other agreements or commitments of any nature whatsoever (either firm or
conditional) obligating the Bank to issue, deliver or sell, or to cause to be
issued, delivered or sold, any additional common shares of the Bank.
SECTION 3.08. SEC DOCUMENTS AND REGULATORY REPORTS. (a) CFKY
has delivered or made available to Camco a complete copy of all reports,
prospectuses, proxy statements, registration statements and all similar
documents filed, or required to be filed, pursuant to the Securities Act of 1933
(the "1933 Act"), as amended, and the Securities Act of 1934 (the "1934 Act"),
as amended, and regulations issued pursuant thereto or mailed by CFKY or the
Bank to the respective members or shareholders (the "CFKY SEC Documents"). The
CFKY SEC Documents were timely filed and did not, as of the dates on which such
reports were filed with the SEC, contain any untrue statement of a material fact
or omit any material fact required to be stated therein or necessary to make the
statements contained therein, in light of the circumstances under which they
were made, not misleading.
(b) CFKY and the Bank has each duly filed with the OTS and the
FDIC, as the case may be, in correct form the reports required to be filed under
applicable law and regulations and such reports were in all material respects
complete and accurate and in compliance with the requirements of applicable law
and regulation, and CFKY has previously delivered or made available to Camco
accurate and complete copies of all such reports. In connection with the most
recent examination of CFKY or the Bank by the OTS or the FDIC, neither CFKY nor
the Bank was required to correct or change any action, procedure or proceeding
which has not been corrected or changed as required.
SECTION 3.09. FINANCIAL STATEMENTS. (a) The consolidated
statements of financial condition of CFKY and its subsidiaries as of September
30, 2000 and 1999, and the related consolidated statements of income, statements
of shareholders' equity and statements of cash flows for each of the three
fiscal years ended September 30, 2000, 1999 and 1998, together with the notes
thereto, examined and reported upon by VonLehman & Company Inc., independent
certified public accountants, complete copies of which have previously been
delivered to Camco (the "CFKY Audited Financials"), have been prepared in
conformity with generally accepted accounting principles ("GAAP") applied on a
consistent basis and fairly present the consolidated financial position of CFKY
at such date and the consolidated results of its operations and cash flows for
such periods.
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(b) The unaudited consolidated statements of financial
condition of CFKY as of March 31, 2001, and the related unaudited consolidated
statements of income, shareholders' equity and cash flows for each of the six
months ended March 31, 2001 and March 31, 2000, included in the CFKY quarterly
report on Form 10-Q for the quarter ended March 31, 2001, as currently on file
with the SEC and previously delivered to Camco (the "CFKY Interim Financials"),
fairly present the consolidated financial position of CFKY at such date and the
consolidated results of its operations and cash flows for such periods and have
been prepared in accordance with GAAP applied on a consistent basis.
(c) The books and records of CFKY and the Bank are being
maintained in material compliance with applicable legal and accounting
requirements, and such books and records accurately reflect in all material
respects all dealings and transactions in respect of the business, assets,
liabilities and affairs of CFKY and the Bank.
(d) Except as disclosed in the CFKY Interim Financials, as of
Xxxxx 00, 0000, XXXX had no liabilities or obligations material to the business
operations, condition (financial or otherwise) or prospects of CFKY and its
consolidated subsidiaries taken as a whole, whether accrued, absolute,
contingent or otherwise, and whether due or to become due.
(e) The CFKY Audited Financials and CFKY Interim Financials did
not, as of the dates thereof, contain any untrue statement of a material fact or
omit to state any material fact necessary to make the information contained
therein, in light of the circumstances under which they were made, not
misleading.
SECTION 3.10. ABSENCE OF MATERIAL ADVERSE CHANGE; CONDUCT OF
BUSINESS. Since March 31, 2001: there have been no material adverse changes in
the assets, liabilities, business, operations, condition (financial or
otherwise) or prospects of CFKY or the Bank, taken as a whole; CFKY and the Bank
have conducted business only in the ordinary and usual course; and CFKY and the
Bank have not:
(a) Authorized the creation or issuance of, issued, sold or
disposed of, or created any obligation to issue, sell or
dispose of, any stock, notes, bonds or other securities, or any
obligation convertible into or exchangeable for, any shares of
their capital stock;
(b) Declared, set aside, paid or made any dividend or other
distributions on their capital stock or directly or indirectly
redeemed, purchased or acquired any shares thereof or entered
into any agreement in respect of the foregoing, except a cash
dividend paid by CFKY on May 11, 2001 in the amount of $.07 per
share;
(c) Effected any stock split, recapitalization, combination,
exchange of shares, readjustment or other reclassification;
(d) Amended their Articles of Incorporation, Code of
Regulations, Charter or Bylaws;
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(e) Purchased, sold, assigned or transferred any material
tangible asset or any material patent, trademark, trade name,
copyright, license, franchise, design or other intangible asset
or property;
(f) Mortgaged, pledged or granted or suffered to exist any lien
or other encumbrance or charge on any assets or properties,
tangible or intangible, except for liens for taxes not yet due
and payable and such other liens, encumbrances or charges which
do not materially adversely affect their financial position;
(g) Cancelled any material debts or waived any material claims
other than for adequate consideration;
(h) Incurred any material obligation or liability (absolute or
contingent), including, without limitation, any tax liability
or any liability for borrowings from the FHLB, or paid any
material liability or obligation (absolute or contingent) other
than liabilities and obligations incurred or paid in the
ordinary course of business and consistent with past practice;
(i) Experienced any material change in the amount or general
composition of the Bank's deposit liabilities;
(j) Entered into or amended any employment contract with any of
their employees, increased the compensation payable to any
officer or director or any relative of any such employee or
director, or become obligated to increase any such
compensation;
(k) Except as set forth in Section 3.10(k) of the CFKY
Disclosure Schedule, adopted or amended in any material respect
any employee benefit plan, severance plan or collective
bargaining agreement, made any awards or distributions under
any employee benefit plan or made any contributions to any
employee benefit plan not consistent with past practice or
custom;
(l) Incurred any damage, destruction or similar loss, whether
or not covered by insurance, materially affecting their
businesses or properties;
(m) Acquired any stock or other equity interest in any
corporation, partnership, trust, joint venture or other entity;
(n) Made any material investment (except investments made in
the ordinary course of business and consistent with past
practice);
(o) Made any material capital expenditure or commitment for any
material addition to property, plant or equipment; or
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(p) Agreed, whether in writing or otherwise, to take any action
described in this Section 3.10.
SECTION 3.11. PROPERTIES. (a) A list and brief description of
all material fixed assets owned by CFKY or the Bank (the "Personal Property")
carried on the books of CFKY or the Bank as of the date hereof, is set forth in
Section 3.11(a) of the CFKY Disclosure Schedule. All Personal Property has been
maintained in good working order, ordinary wear and tear excepted. CFKY or the
Bank owns and has good title to all of the Personal Property, free and clear of
any mortgage, lien, pledge, charge, claim, conditional sales or other agreement,
lease, right or encumbrance, except (i) to the extent stated or reserved against
in the CFKY Audited Financials and (ii) such other exceptions which are not
material in character, amount or extent and do not materially detract from the
value of or interfere with the use of the Personal Properties subject thereto or
affected thereby.
(b) The documentation governing or relating to the loan and
credit-related assets representing the loan portfolio of the Bank ("Loan
Documentation") is legally sufficient in all material respects for the purposes
intended thereby and creates enforceable rights of the Bank in accordance with
the terms of such Loan Documentation, subject to applicable bankruptcy,
insolvency, reorganization and moratorium laws and other laws of general
applicability affecting the enforcement of creditors' rights generally, and the
effect of rules of law governing specific performance, injunctive relief and
other equitable remedies on the enforceability of such documents. To the
knowledge of the Bank, no debtor under any of the Loan Documentation has
asserted any claim or defense with respect to the subject matter thereof.
(c) A description of each parcel of real property owned by
CFKY or the Bank (the "Real Properties") is set forth in Section 3.11(c) of the
CFKY Disclosure Schedule. CFKY or the Bank is the owner of the Real Properties
in fee simple and has good and marketable title to the Real Properties free of
any liens, claims, charges, encumbrances or security interests of any kind,
except (i) liens for real estate taxes and assessments not yet delinquent and
(ii) utility, access and other easements, rights of way, restrictions and
exceptions which do not impair the Real Properties for the use and business
being conducted thereon. No party leases any of the Real Properties from CFKY or
the Bank.
(d) Neither CFKY nor the Bank has received notification from
any governmental entity of contemplated improvements to the Real Properties or
surrounding area or community by a public authority, the costs of which are to
be assessed as special taxes against the Real Properties in the future.
(e) A description of all real property leased by CFKY or the
Bank from a third party (the "Leased Real Property") is set forth in Section
3.11(e) of the CFKY Disclosure Schedule. True and correct copies of all leases
pertaining to the Leased Real Property (the "Real Property Leases") and all
attachments, amendments and addenda thereto have been delivered by CFKY and the
Bank to Camco. The Real Property Leases create, in accordance with their terms,
valid, binding leasehold interests of CFKY or the Bank in all of the Leased Real
Property, free and clear of all liens, claims, charges, encumbrances or security
interests of any kind. CFKY and
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the Bank have complied in all material respects with all of the provisions of
the Real Property Leases required on their part to be complied with and are not
in default with respect to any of their obligations (including payment
obligations) under any of the Real Property Leases.
(f) A description of all personal property leased by CFKY or
the Bank from a third party (the "Leased Personal Property") is set forth in
Section 3.11(f) of the CFKY Disclosure Schedule. The Personal Property Leases
create, in accordance with their terms, valid and binding leasehold interests of
CFKY or the Bank in all of the Leased Personal Property, free and clear of all
liens, claims, charges, encumbrances or security interests of any kind. CFKY and
the Bank have complied in all material respects with all of the provisions under
the Personal Property Leases required on their part to be complied with and are
not in default with respect to any of their obligations (including payment
obligations) under any of the Personal Property Leases.
SECTION 3.12. ALLOWANCE FOR LOAN LOSSES. The allowance for
loan losses reflected on the CFKY Audited Financials is adequate as of the date
hereof in all material respects under the requirements of GAAP to provide for
reasonably anticipated losses on outstanding loans.
SECTION 3.13. INVESTMENTS. Section 3.13 of the CFKY Disclosure
Schedule sets forth (a) a true, accurate and complete list of all investments,
other than investments in the Personal Property, loans receivable of the Bank
(the "Loan Assets") and the Real Properties, owned by CFKY or the Bank (the
"Investments") as of the date hereof, the name of the registered holder thereof,
the location of the certificates therefor or other evidence thereof and any
stock powers or other authority for transfer granted with respect thereto, and
(b) a true, accurate and complete list of the names of each bank or other
depository in which either CFKY or the Bank has an account or safe deposit box,
including, without limitation, accounts with the FHLB, and the names of all
persons authorized to draw thereon or to have access thereto. The Investments
are owned by CFKY or the Bank free and clear of all liens, pledges, claims,
security interests, encumbrances, charges or restrictions of any kind and may be
freely disposed of by CFKY or the Bank at any time. There are no outstanding
letters of credit issued by the Bank.
SECTION 3.14. DERIVATIVE TRANSACTIONS. Neither CFKY nor the
Bank is a party to any futures contract, option contract, interest rate caps,
interest rate floors, interest rate exchange agreements, repurchase agreements
or reverse repurchase agreements or other derivative instruments.
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SECTION 3.15. TAXES. (a) CFKY and the Bank have timely filed
all federal, state, county and local income, profits, franchise, excise, sales,
customs, property, use, occupation, withholding, social security and other tax
and information returns and reports required to have been filed by them through
the date hereof, and have paid or accrued all taxes and duties (and all interest
and penalties with respect thereto) due or claimed to be due by CFKY or the
Bank. Neither CFKY nor the Bank has, to their knowledge, any liability for any
taxes or duties (or interest or penalties with respect thereto) of any nature
whatsoever in excess of those that have already been paid or accrued, and there
is no basis for any additional material claims or assessments. True copies of
the federal, state and local income tax returns of CFKY or the Bank for each of
the three tax years ended September 30, 2000, 1999 and 1998, have been delivered
to Camco.
(b) Section 3.15(b) of the CFKY Disclosure Schedule lists the
type of return and applicable due date for each federal, state or local tax
returns for which an extension of time has been granted to CFKY or the Bank.
Except as set forth in Section 3.15(b) of the CFKY Disclosure Schedule, there
are no federal, state or local tax returns or reports not filed which would be
due but for an extension of time for filing having been granted. Neither CFKY
nor the Bank has executed or filed with the Internal Revenue Service (the "IRS")
or any state or local tax authority any agreement extending the period for
assessment and collection of any tax, nor is CFKY or the Bank a party to any
action or proceeding of any governmental authority for assessment or collection
of taxes, except tax liens or levies against customers of the Bank. There is no
outstanding assessment or claim for collection of taxes against CFKY or the
Bank. Neither CFKY nor the Bank has received any notice of deficiency, proposed
deficiency or assessment from the IRS or any other governmental agency with
respect to any federal, state or local taxes. No tax return of CFKY or the Bank
is currently the subject of any audit by the IRS or any other governmental
agency. No material deficiencies have been asserted in connection with the tax
returns of CFKY or the Bank, and CFKY and the Bank have no reason to believe
that any deficiency would be asserted relating thereto. Except as disclosed in
Section 3.15(b) of the CFKY Disclosure Schedule: (i) neither CFKY nor the Bank
has ever been a member of an "affiliated group of corporations" (within the
meaning of Section 1504(a) of the Code) filing consolidated returns, other than
the affiliated group of which CFKY is the parent; and (ii) neither CFKY nor the
Bank is a party to any tax sharing agreement, except the Tax Allocation
Agreement dated January 11, 2001, between CFKY and the Bank.
SECTION 3.16. MATERIAL CONTRACTS. (a) Except as set forth in
Section 3.16(a) of the CFKY Disclosure Schedule, neither CFKY nor the Bank is a
party to or bound by any written or oral (i) contract or commitment for capital
expenditures in excess of $15,000 for any one project or $30,000 in the
aggregate; (ii) contract or commitment made in the ordinary course of business
for the purchase of materials or supplies or for the performance of services
involving payments to or by CFKY or the Bank of an amount exceeding $15,000 in
the aggregate or extending for more than six months from the date hereof; (iii)
contract or option for the purchase of any property, real or personal, for an
amount exceeding $15,000; (iv) letter of credit or indemnity calling for payment
of more than $15,000; (v) guarantee agreement; (vi) instrument granting any
person authority to transact business on behalf of CFKY or the Bank; (vii)
contracts or commitments to make loans (including unfunded commitments and lines
of credit) to any one
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person (together with "affiliates" of that person) in excess of $100,000 in the
aggregate, except for contracts or commitments entered into in the ordinary
course of business; (viii) employment, management, consulting, deferred
compensation, severance or other similar contract with any current or former
director, officer or employee of CFKY or the Bank; (ix) note, debenture or loan
agreement pursuant to which CFKY or the Bank has incurred indebtedness other
than deposit liabilities and advances from the FHLB; (x) loan participation
agreement; (xi) loan servicing agreement; (xii) contract or commitment relating
to a real estate development project consisting of the development of more than
one single family dwelling; (xiii) commitment to make any acquisition,
development and construction loan; (xiv) commitment or agreement to do any of
the foregoing; or (xv) other contract, agreement or commitment made outside the
ordinary course of business. (The contracts, agreements, commitments and other
arrangements described in clauses (i) through (xv) of this Section 3.16(a) are
collectively referred to as the "Contracts").
(b) CFKY or the Bank has previously delivered or will make
available to Camco upon request (i) copies of all of the Contracts and (ii) all
form lending agreements and deposit forms used by the Bank in the ordinary
course of business.
(c) Neither CFKY nor the Bank is in material default under any
Contract, and no claim of such default by any party has been made or is now, to
the knowledge of CFKY or the Bank, threatened, except to the extent such a
default would not have a material adverse effect on CFKY and the Bank taken as a
whole. There does not exist any event which, with notice or lapse of time or
both, would constitute a material default by CFKY or the Bank under, or would
excuse performance by any party thereto from, any Contract, except to the extent
such a default would not have a material adverse effect on CFKY and the Bank
taken as a whole.
SECTION 3.17. INSURANCE. All material properties and
operations of CFKY and the Bank are insured in amounts and types as are
customary for holding companies and savings banks similarly situated. The
performance by the officers and employees of CFKY and the Bank of their duties
is bonded in such amounts and against such risks as are usually insured against
or bonded by entities similarly situated, under valid and enforceable policies
of insurance or bonds issued by insurers or bonding companies of recognized
responsibility, financial or otherwise. Section 3.17 of the CFKY Disclosure
Schedule sets forth a true and complete list of all insurance coverages
maintained by CFKY or the Bank.
SECTION 3.18. LITIGATION. Except as set forth in Section 3.18
of the CFKY Disclosure Schedule, (a) there are no material actions, suits,
proceedings or investigations pending or threatened against or affecting the
business, operations or financial condition of CFKY or the Bank in any court or
before any federal, state, municipal or other governmental department,
commission, board, bureau, agency or instrumentality, (b) neither the management
of CFKY nor the Bank has any knowledge of any basis for any such action, suit,
proceeding or investigation, and (c) neither CFKY nor the Bank is in default in
respect of any judgment, order, writ, injunction or decree of any court or any
federal, state, municipal or other governmental department, commission, board,
bureau, agency or instrumentality.
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SECTION 3.19. PERMITS AND LICENSES. CFKY and the Bank each has
all material permits, licenses, orders and approvals of all federal, state or
local governmental or regulatory bodies required for it to conduct its business
as presently conducted, and all such material permits, licenses, orders and
approvals are in full force and effect, without the threat of suspension or
cancellation. None of such permits, licenses, orders or approvals will be
adversely affected by the consummation of the transactions contemplated by this
Agreement.
SECTION 3.20. BENEFIT PLANS; ERISA. (a) Section 3.20(a) of the
CFKY Disclosure Schedule sets forth a true and complete list of all pension or
profit-sharing plans, deferred compensation, consulting, bonus, group insurance
plans or agreements and all other incentive, welfare or employee benefit plans
or agreements maintained for the benefit of employees, former employees,
directors or former directors of CFKY or the Bank. Copies of such plans and
agreements, together with, when applicable, (i) the most recent actuarial and
financial reports prepared with respect to any such plan, (ii) the three most
recent annual reports filed with any governmental agency, and (iii) all rulings
and determination letters received from governmental agencies and any open
requests for rulings or letters that pertain to any such plan, have been
delivered to Camco.
(b) Except as set forth in Section 3.20(b) of the CFKY
Disclosure Schedule, CFKY and the Bank do not currently maintain any "employee
pension benefit plan," as defined in Section 3(2) of ERISA (each such plan,
together with any related trust or other funding mechanism, as maintained by
CFKY or the Bank, a "Pension Benefit Plan"), which is intended to be qualified
under Section 401(a) of the Code.
(c) Except as set forth in Section 3.20(c) of the CFKY
Disclosure Schedule, neither CFKY nor the Bank currently maintains, nor have
they ever maintained, any Pension Benefit Plan subject to the provisions of
Title IV of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"). With respect to any Pension Benefit Plan that is subject to Title IV
of ERISA ("DB Plan"), CFKY and the Bank, in addition to meeting the standards
described in Section 3.20(e), have complied with all minimum funding and
contribution requirements and obligations imposed by the Code or ERISA and all
applicable reporting, disclosure and Pension Benefit Guaranty Corporation
("PBGC") premium obligations imposed by the Code and ERISA. There are no
outstanding waivers of any minimum funding standard (or open applications for a
waiver of any minimum funding standard) and each DB Plan either has sufficient
assets to meet all benefit liabilities or will be revised, as of or before the
Effective Time, to eliminate any unfunded benefit liabilities under any DB Plan.
(d) CFKY and the Bank do not currently participate in, nor
have they ever participated in, any multiemployer plan, as such term is defined
in Section 3(37) of ERISA.
(e) Each Pension Benefit Plan has complied and complies
currently in all material respects, both as to form and operation, with the
provisions of ERISA and the Code, where required in order to be tax-qualified
under Section 401(a) of the Code, and all other applicable laws, rules and
regulations. Neither CFKY nor the Bank is aware of any event which might
jeopardize the tax qualified status of any Pension Benefit Plan. Except as set
forth in
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Section 3.20(e) of the CFKY Disclosure Schedule, each Pension Benefit Plan which
is intended to be qualified under Section 401(a) of the Code (i) has received a
determination letter from the IRS which considers amendments made to the Code by
the Tax Reform Act of 1986, or (ii) is maintained as part of a prototype or
similar plan ("Prototype Plan") which has received a form of approval letter
("Approval Letter") from the IRS, which has been adopted by completion of an
adoption (or similar form of) agreement subject to the Approval Letter and in a
manner that entitles CFKY to rely on the Approval Letter, and which has not been
subsequently amended in a manner that would affect CFKY's ability to rely on the
Approval Letter. All reports required by any governmental agency with respect to
each Pension Benefit Plan have been timely filed with such agency and, where
required, distributed to participants and beneficiaries of such Pension Benefit
Plan within the time required by law.
(f) Each "employee welfare benefit plan," as defined in
Section 3(1) of ERISA (each such plan together with any related trust or other
funding mechanism, as maintained by CFKY or the Bank, a "Welfare Benefit Plan")
has been administered in all material respects in compliance with the
requirements of the Code and ERISA, and, where applicable, all state insurance
laws, and all reports required by any governmental agency with respect to each
Welfare Benefit Plan have been timely filed with such agency and, where
required, distributed to participants and beneficiaries of such Welfare Benefit
Plan within the time required by law. Each Plan which constitutes a "group
health plan", as defined in Section 5000(b)(1) of the Code, is and has been
administered in material compliance with the continuation of coverage provisions
contained in Section 4980B of the Code.
(g) Neither CFKY nor the Bank nor, to the knowledge of CFKY or
the Bank, any plan fiduciary of any Welfare Benefit Plan or Pension Benefit Plan
has engaged in any transaction in violation of Section 406(a) or (b) of ERISA
(for which no statutory, class or administrative exemption exists, or has been
granted, under Section 408 of ERISA) or any "prohibited transaction" (as defined
in Section 4975(c)(1) of the Code) for which no statutory, class or
administrative exemption exists or has been granted, under Section 4975(c)(1) of
the Code.
(h) Each Pension Benefit Plan which is intended to be an
employee stock ownership plan ("ESOP"), as defined in Section 4975(e)(7) of the
Code, is and has been administered in substantial compliance with the applicable
provisions of Sections 4975 and 409 of the Code and the regulations thereunder.
Any outstanding loan to which any such ESOP is a party constitutes an "exempt
loan" as described in Section 54.4975-7 of the IRS regulations.
SECTION 3.21. ENVIRONMENTAL MATTERS. (a) CFKY and the Bank are
in full compliance with all applicable Environmental Requirements (hereinafter
defined). CFKY and the Bank have not received any written or oral communication
from any organization, person or otherwise, which alleges that either (i) CFKY
or the Bank is not in compliance with all applicable Environmental Requirements,
or (ii) any properties or assets of CFKY or the Bank may have been affected by
any Hazardous Substances (hereinafter defined). CFKY and the Bank possess all
permits, registrations and other governmental authorizations required under any
Environmental Requirements for the operation of the business of CFKY and the
Bank.
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(b) There is no Environmental Claim (hereinafter defined),
investigation or inquiry pending or, to the knowledge of CFKY or the Bank,
threatened against (i) CFKY or the Bank, (ii) any person or entity whose
liability for any Environmental Claim has or may have been retained or assumed
by CFKY or the Bank either contractually or by operation of law, or (iii) any
real or personal property which CFKY or the Bank owns, leases, manages,
supervises or participates in the management of, or, to the knowledge of CFKY or
the Bank, in which CFKY or the Bank holds a security interest in connection with
a loan or loan participation.
(c) To the knowledge of CFKY and the Bank, there are no
present or past activities, conditions, or incidents, including, without
limitation, the release or disposal of any Hazardous Substances, that could
reasonably form the basis of any Environmental Claim against CFKY or the Bank or
against any person or entity whose liability for any Environmental Claim has or
may have been retained or assumed by CFKY or the Bank, either contractually or
by operation of law. To the knowledge of CFKY and the Bank, none of the Real
Properties or Leased Real Properties has been, or is (i) the site of the
production, storage, use, release, disposal or treatment of Hazardous
Substances, (ii) contaminated by Hazardous Substances, (iii) the site of any
underground or aboveground storage tanks, or (iv) subject to any lien or claim
which might give rise to a lien as a result of any release of Hazardous
Substances or operation of any Environmental Requirement. To the knowledge of
CFKY and the Bank, no Hazardous Substances have been integrated into any of the
Real Properties or Leased Real Properties or any component thereof in such
quantities and manner as may or do pose a threat to human health, violate any
Environmental Requirement, or require abatement now or in connection with any
renovation or demolition of such properties.
(d) Except as set forth in Section 3.21(d) of the CFKY
Disclosure Schedule, none of CFKY, the Bank, their respective agents,
representatives, or employees, any governmental entity, or any other person has
conducted any environmental studies, site assessments, audits, or inspections of
the Real Properties, Leased Real Properties or real property previously owned or
leased by CFKY or the Bank. Section 3.21(d) of the CFKY Disclosure Schedule sets
forth an accurate and complete list of outstanding loans of the Bank as to which
the borrower has submitted (or is required to submit) to the Bank any
environmental audits or reports regarding any real property securing such loan
and a brief description of the environmental audit or report, to the extent
applicable.
(e) As used in this Agreement:
(i) "Environmental Requirements" means all federal, state,
local and other statutes, common law, regulations, rules, standards, ordinances,
orders, decrees, and judgments relating to pollution, the environment, Hazardous
Substances, occupational health and safety, or the protection of human health or
the environment, all as may be from time to time modified;
(ii) "Hazardous Substances" means any and all substances
or materials which are classified or considered to be hazardous or toxic to
human health or the environment
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under any applicable Environmental Requirements and shall include, without
limitation, any "Hazardous Substances" as defined in Section 101(14) of CERCLA
(42 USC Section 9601(14)) or regulations promulgated thereunder, "solid waste",
"hazardous waste", or "infectious waste" as such terms are defined in any
Environmental Requirement, any "toxic and hazardous substances" as defined in 29
CFR Part 1910, petroleum and its products and byproducts, asbestos,
polychlorinated biphenyls, nuclear fuel or materials, radioactive material, lead
and lead-containing substances, molds and other infectious materials, and
urea-formaldehyde; and
(iii) "Environmental Claim" means any claim, cause of
action or notice (written or oral) by any person or entity alleging potential
liability (including, without limitation, potential liability for investigatory
costs, cleanup costs, governmental response costs, natural resources damages,
property damages, personal injuries or penalties) arising out of, based on or
resulting from (A) the presence, or release into the environment, of any
Hazardous Substance at any location, whether leased or owned, or (B)
circumstances forming the basis of any violation, or alleged violation, of any
Environmental Requirement.
SECTION 3.22. EMPLOYMENT MATTERS. CFKY and the Bank are in
compliance with all federal, state or other applicable laws respecting
employment and employment practices, terms and conditions of employment and
wages and hours and have not and are not engaged in any unfair labor practice,
except where such failure to comply or such practice would not have a material
adverse effect on the financial condition, results of operations, business or
prospects of CFKY and the Bank taken as a whole. No unfair labor practice
complaint against CFKY or the Bank is pending before any governmental agency or
court and there is no labor strike, dispute, slowdown or stoppage actually
pending or threatened against or involving CFKY or the Bank. No representation
question exists in respect of the employees of CFKY or the Bank and no labor
grievance which might have a material adverse effect upon CFKY or the Bank or
the conduct of their businesses is pending or, to the knowledge of CFKY or the
Bank, threatened. Neither CFKY nor the Bank has entered into any collective
bargaining agreement with any labor organization with respect to any group of
employees of CFKY or the Bank, and, to the knowledge of CFKY and the Bank, there
is no present effort nor existing proposal to attempt to unionize any group of
employees of CFKY or the Bank.
SECTION 3.23. UNTRUE STATEMENTS AND OMISSIONS. The
certificates, statements and other information furnished to Camco in writing by
or on behalf of CFKY and the Bank in connection with the transactions
contemplated hereby, including, but not limited to, disclosures and information
set forth in the CFKY Disclosure Schedule, but excluding statements or
information pertaining to parties unrelated to CFKY or the Bank, do not contain
any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.
SECTION 3.24. PROXY MATERIALS. None of the information relating
to CFKY or the Bank included in the Proxy Statement which is to be mailed to the
shareholders of CFKY in connection with the CFKY Shareholders Meeting will, at
the time the Proxy Statement is mailed or at the time of the meeting to which
the Proxy Statement relates, contain any untrue statement of a material fact, or
omit to state any material fact necessary in order to make the statements
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therein, in light of the circumstances under which they were made, not false or
misleading, except to the extent it contains information about Camco provided in
writing to CFKY or the Bank by Camco.
SECTION 3.25. BROKERS. Except for amounts payable to Xxxxx,
Xxxxxxxx & Xxxx, Inc. ("KBW"), as disclosed in Section 3.25 of the CFKY
Disclosure Schedule, there are no claims or agreements for brokerage commission,
finder's fees, or similar compensation in connection with the transactions
contemplated by this Agreement payable by CFKY or the Bank.
SECTION 3.26. REGULATORY ENFORCEMENT. Neither CFKY nor the Bank
is subject to, or has received any notice or advice that it is or may become
subject to, any order, agreement or memorandum of understanding of any federal
or state agency charged with the supervision or regulation of banks or savings
banks or engaged in the insurance of deposits or any other governmental agency
having supervisory or regulatory authority with respect to CFKY or the Bank.
Neither CFKY nor the Bank has received any notice or advice that it is not in
substantial compliance with any statute or regulation, except as set forth in
Section 3.26 of the CFKY Disclosure Schedule.
SECTION 3.27. SUBSIDIARIES; EQUITY INTEREST. The term
"Subsidiary" means an organization or entity which is consolidated or is
eligible to be consolidated with a party to this Agreement for financial
reporting purposes. Except for the Bank, CFKY has no Subsidiaries. The Bank has
no Subsidiaries. Except for shares of the Bank owned by CFKY and shares of the
FHLB of Cincinnati owned by the Bank or as set forth in Section 3.27 of the CFKY
Disclosure Schedule, neither CFKY nor the Bank owns, beneficially or otherwise,
any shares of Equity Securities (as defined below) or similar interest of any
corporation, bank, business trust, association or similar organization. "Equity
Securities" of an issuer means capital stock or other equity securities of such
issuer, options, warrants, scrip, rights to subscribe to, calls or commitments
of any character whatsoever relating to, or securities or rights convertible
into, shares of any capital stock or other equity securities of any issuer, or
contracts, commitments, understandings or arrangements by which such issuer is
or may become bound to issue additional shares of its capital stock or other
equity securities of such issuer, or options, warrants, scrip or rights to
purchase, acquire, subscribe to, calls on or commitments for any shares of its
capital stock or other equity securities. Neither CFKY nor the Bank is a party
to any partnership or joint venture.
SECTION 3.28. CFKY OPTIONS AND RRP AWARDS. (a) Section 3.28(a)
of the CFKY Disclosure Schedule lists the names of the holders, award dates,
vesting dates, expiration dates, number of shares and exercise price (as such
price may have been adjusted) of all unexercised CFKY Options.
(b) The CFKY Disclosure Schedule lists the names of the
recipients, award dates, forfeitures, distribution dates and number of shares
awarded and unawarded relating to and arising out of the RRP.
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SECTION 3.29. FAIRNESS OPINION. CFKY has received an opinion of
KBW to the effect that, as of the date hereof, the Per Share Merger
Consideration is fair from a financial point of view to the shareholders of
CFKY.
SECTION 3.30. REQUIRED VOTE; ANTI-TAKEOVER PROVISIONS. The
affirmative vote of the holders of a majority of the issued and outstanding CFKY
Shares is the only vote of shareholders of CFKY required to approve this
Agreement and the transactions contemplated hereby on behalf of CFKY.
ARTICLE FOUR
REPRESENTATIONS AND WARRANTIES OF
CAMCO, MERGER SUB AND ADVANTAGE
Camco, Merger Sub and Advantage represent and warrant to CFKY
and the Bank that each of the following statements is true and accurate in all
material respects:
SECTION 4.01. ORGANIZATION AND STANDING. (a) Camco is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware and has the corporate power and authority to own or
hold under lease all of its properties and assets and to conduct its business
and operations as presently conducted. Camco is registered as a savings and loan
holding company under the HOLA. Camco is in compliance in all material respects
with all applicable local, state and federal laws and regulations.
(b) Merger Sub is a corporation duly organized, validly
existing and in good standing under the laws of the State of Ohio and has the
corporate power and authority to own or hold under lease all of its properties
and assets and to conduct its business and operations as presently conducted.
Merger Sub is in compliance in all material respects with all applicable local,
state and federal laws and regulations.
(c) Advantage is a savings bank duly organized, validly
existing and in good standing under the laws of the State of Ohio and has the
corporate power and authority to own or hold under lease all of its properties
and assets and to conduct its business and operations as presently conducted.
Advantage is in compliance in all material respects with all applicable local,
state and federal laws and regulations.
SECTION 4.02. QUALIFICATION. Camco, Merger Sub and Advantage
are each either duly qualified to do business and in good standing in each
jurisdiction in which such qualification is required or the failure to so
qualify would not have a material adverse effect on the business of Camco,
Merger Sub and Advantage taken as a whole.
SECTION 4.03. AUTHORITY. (a) This Agreement has been (i) duly
executed and delivered by Camco, Merger Sub and Advantage, (ii) approved by the
boards of directors of
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Camco, Merger Sub and Advantage, and (iii) adopted by Camco as the sole
shareholder of Merger Sub and Advantage.
(b) The Bank Merger Agreement has been (i) duly executed and
delivered by Advantage, (ii) approved by the board of directors of Advantage,
and (iii) adopted by Camco as the sole shareholder of Advantage.
(c) Subject to the filing of all requisite regulatory notices
and the receipt of all requisite regulatory approvals, (i) Camco, Merger Sub and
Advantage have all requisite corporate power and authority to enter into this
Agreement and to perform their obligations hereunder; (ii) the execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby have been duly authorized by all necessary corporate action by Camco,
Merger Sub and Advantage; and (iii) subject to applicable bankruptcy,
insolvency, reorganization and moratorium laws and other laws of general
applicability affecting the enforcement of creditors' rights generally, and the
effect of rules of law governing specific performance, injunctive relief and
other equitable remedies on the enforceability of such documents, and except to
the extent such enforceability may be limited by laws relating to safety and
soundness of insured depository institutions as set forth in 12 U.S.C.
ss.1818(b) or by the appointment of a conservator by the FDIC, this Agreement is
the valid and binding agreement of Camco, Merger Sub and Advantage enforceable
against them in accordance with its terms.
(d) No vote or action by the stockholders of Camco is required by
applicable law, the Certificate of Incorporation of Camco or the Bylaws of Camco
to consummate the transactions contemplated by this Agreement.
SECTION 4.04. GOVERNING DOCUMENTS. Camco has made available, or
will promptly make available, to CFKY true and accurate copies of the Camco
certificate of incorporation and bylaws, the Merger Sub articles of
incorporation and code of regulations and Advantage articles of incorporation
and constitution.
SECTION 4.05. NO CONFLICTS. The execution and delivery of this
Agreement and, subject to regulatory filings and approvals referenced in Section
1.06 of this Agreement, the consummation of the transactions contemplated hereby
will not (a) conflict with or violate any provision of or result in the breach
of any provision of the Certificate of Incorporation or Bylaws of Camco, the
Articles of Incorporation and Code of Regulations of Merger Sub or the Articles
of Incorporation and Constitution of Advantage; (b) conflict with or violate any
provision of or result in the breach or the acceleration of or entitle any party
to accelerate (whether upon or after the giving of notice or lapse of time or
both) any obligation under, or otherwise materially affect the terms of, any
mortgage, lien, lease, agreement, license, instrument, order, arbitration award,
judgment or decree to which Camco or Advantage is a party or by which Camco or
Advantage or its property or assets is bound; (c) require the consent of any
party to any agreement or commitment to which Camco or Advantage is a party or
by which Camco or Advantage or its property or assets is bound, the failure to
obtain which could, individually or in the aggregate with all the other failures
to obtain required consents, have a material adverse effect on the business,
operations, condition (financial or otherwise) or prospects of Camco or
Advantage; (d)
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result in the creation or imposition of any lien, charge, pledge, security
interest or other encumbrance upon any property or assets of Camco or Advantage;
or (e) violate or conflict with any applicable law, ordinance, rule or
regulation, including, without limitation, the rules and regulations of or
conditions of approval of applications or notices to the OTS or the FDIC.
SECTION 4.06. CONSENTS. No consent, approval, order or
authorization of, or registration, declaration or filing with, any governmental
authority is required in connection with the execution and delivery of this
Agreement by Camco, Merger Sub or Advantage or the consummation by Camco, Merger
Sub or Advantage of the transactions contemplated hereby, except for filings,
authorizations, consents or approvals referenced in Section 1.06 of this
Agreement.
SECTION 4.07. CAPITALIZATION. The authorized capital of Camco
consists solely of (i) 14,900,000 shares of common stock, par value One Dollar
($1.00) per share (the "Camco Shares"), 6,952,927 of which are issued and
outstanding, 126,019 of which are held in Camco's treasury, and 688,655 of which
are reserved for issuance upon the exercise of outstanding stock options (the
"Camco Options"), and (ii) 100,000 preferred shares, One Dollar ($1.00) par
value per share, none of which is issued or outstanding. All of the outstanding
Camco shares are, and, when issued in accordance with this Agreement, the Camco
Shares to be issued upon exchange for the CFKY Shares shall be, duly authorized,
validly issued, fully paid and nonassessable, issued in full compliance with all
applicable laws, and not issued in violation of the preemptive right of any
person. Except for the Camco Options, there are no outstanding subscription
rights, options, conversion rights, warrants or other agreements or commitments
of any nature whatsoever (either firm or conditional) obligating Camco to issue,
deliver or sell, cause to be issued, delivered or sold, or restricting Camco
from selling any additional Camco shares, or obligating Camco to grant, extend
or enter into any such agreement or commitment.
SECTION 4.08. SEC DOCUMENTS. (a) Camco has delivered or made
available to CFKY a complete copy of all reports, prospectuses, proxy
statements, registration statements and all similar documents filed, or required
to be filed pursuant to the 1933 Act or the 1934 Act (the "Camco SEC
Documents"). The Camco SEC Documents were timely filed and did not, as of the
dates on which such reports were filed with the SEC, contain any untrue
statement of a material fact or omit any material fact required to be stated
therein or necessary to make the statements contained therein, in light of the
circumstances under which they were made, not misleading.
(b) Camco and Advantage have filed all reports and maintained
all records required to be filed or maintained by them under various rules and
regulations of the SEC, the OTS or the FDIC. All such documents and reports
complied in all material respects with applicable requirements of laws and
regulations in effect at the time of the filing of such documents and contained
in all material respects the information required to be stated therein. None of
such documents, when filed, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading.
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SECTION 4.09. FINANCIAL STATEMENTS. (a) The consolidated
statements of financial condition of Camco as of December 31, 2000 and 1999, and
the related consolidated statements of earnings, stockholders' equity and cash
flows for each of the three years ended December 31, 2000, 1999 and 1998,
together with notes thereto, examined and reported upon by Xxxxx Xxxxxxxx,
L.L.P. (the "Camco Audited Financials"), have been prepared in conformity with
GAAP applied on a consistent basis and fairly present the financial position of
Camco at such dates and the results of its operations and cash flows for such
periods.
(b) The unaudited consolidated statements of financial
condition of Camco as of March 31, 2001, and the related unaudited consolidated
statements of earnings, stockholders' equity and cash flows for each of the
three months ended March 31, 2001 and 2000 included in the Camco quarterly
report on Form 10-Q for the quarter ended March 31, 2001, as currently on file
with the SEC and previously delivered to CFKY (the "Camco Interim Financials"),
fairly present the consolidated financial position of Camco at such date and the
consolidated results of its operations and cash flows for such periods and have
been prepared in accordance with GAAP applied on a consistent basis.
(c) The books and records of Camco are being maintained in
material compliance with applicable legal and accounting requirements and such
books and records accurately reflect in all material respects all dealings and
transactions in respect of the business, assets, liabilities and affairs of
Camco.
(d) Except as disclosed in the Camco Interim Financials, as of
March 31, 2001, Camco had no liabilities or obligations material to the business
condition (financial or otherwise) of Camco taken as a whole, whether accrued,
absolute, contingent or otherwise, and whether due or to become due.
(e) The Camco Audited Financials and the Camco Interim
Financials did not, as of the dates thereof, contain any untrue statement of a
material fact or omit to state any material fact necessary to make the
information contained therein, in light of the circumstances under which they
were made, not misleading.
SECTION 4.10. ABSENCE OF MATERIAL ADVERSE CHANGE. Since March
31, 2001, there have been no material adverse changes in the financial
condition, assets, liabilities, obligations, properties, business or prospects
of Camco and its consolidated subsidiaries, taken as a whole.
SECTION 4.11. ALLOWANCE FOR LOAN LOSSES. The allowance for loan
losses reflected on the Camco Audited Financials is adequate as of the date
hereof in all material respects under the requirements of GAAP to provide for
reasonably anticipated losses on outstanding loans.
SECTION 4.12. TAXES. Camco has timely filed all federal, state,
county and local income, profits, franchise, excise, sales, customs, property,
use, occupation, withholding, social security and other tax and information
returns and reports required to have been filed by it
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through the date hereof, and has paid or accrued all taxes and duties (and all
interest and penalties with respect thereto) due or claimed to be due by Camco.
Camco has no liability for any taxes or duties (or interest or penalties with
respect thereto) of any nature whatsoever in excess of those that have already
been paid or accrued, and there is no basis for any additional material claims
or assessments, other than with respect to liabilities for taxes and duties
which may have accrued since December 31, 2000, in the ordinary course of
business. No proposed additional taxes, interest or penalties have been asserted
by applicable taxing authorities.
SECTION 4.13. LITIGATION. Except as disclosed in the Camco SEC
Documents, (a) there are no material actions, suits, proceedings or
investigations pending or threatened against or affecting the business,
operations or financial condition of Camco in any court or before any federal,
state, municipal or other governmental department, commission, board, bureau,
agency or instrumentality, (b) the management of Camco has no knowledge of any
basis for any such action, suit, proceeding or investigation, and (c) Camco is
not in default in respect of any judgment, order, writ, injunction or decree of
any court or any federal, state, municipal or other governmental department,
commission, board, bureau, agency or instrumentality.
SECTION 4.14. UNTRUE STATEMENTS AND OMISSIONS. The
certificates, statements and other information furnished to CFKY in writing by
or on behalf of Camco in connection with the transactions contemplated hereby do
not contain any untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading.
SECTION 4.15. PROSPECTUS. None of the information relating to
Camco in the Prospectus will, at the time the Prospectus is mailed to the CFKY
shareholders or at the time of the CFKY Shareholders Meeting, be false or
misleading with respect to any material fact, or omit to state any material fact
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not false or misleading.
SECTION 4.16 REGULATORY ENFORCEMENT. Camco is not subject to,
nor has it received any notice or advice that it is not in substantial
compliance with any statute or regulation, or that it is or may become subject
to, any order, agreement or memorandum of understanding of any federal or state
agency charged with the supervision or regulation of savings banks, savings
associations or holding companies of savings banks or savings associations or
engaged in the insurance of deposits or any other governmental agency having
supervisory or regulatory authority with respect to Camco, and Camco has
received no notice from any governmental agency threatening to revoke any
license, franchise, permit or governmental authority.
SECTION 4.17. EMPLOYMENT MATTERS. Camco and Advantage are in
compliance with all federal, state or other applicable laws respecting
employment and employment practices, terms and conditions of employment and
wages and hours and have not and are not engaged in any unfair labor practice,
except where such failure to comply or such practice would not have a material
adverse effect on the financial condition, results of operations, business or
prospects of Camco and Advantage taken as a whole. No unfair labor practice
complaint against Camco or
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Advantage is pending before any governmental agency or court and there is no
labor strike, dispute, slowdown or stoppage actually pending or threatened
against or involving Camco or Advantage. No representation question exists in
respect of the employees of Camco or Advantage and no labor grievance which
might have a material adverse effect upon Camco or Advantage or the conduct of
their businesses is pending or, to the knowledge of Camco or Advantage,
threatened. Neither Camco nor Advantage has entered into any collective
bargaining agreement with any labor organization with respect to any group of
employees of Camco or Advantage, and, to the knowledge of Camco and Advantage,
there is no present effort nor existing proposal to attempt to unionize any
group of employees of Camco or Advantage.
SECTION 4.18. ENVIRONMENTAL MATTERS. (a) Camco and Advantage
are in full compliance with all applicable Environmental Laws. Camco and
Advantage have not received any written or oral communication from any
organization, person or otherwise, which alleges that either (i) Camco or
Advantage is not in compliance with all applicable Environmental Requirements,
or (ii) any properties or assets of Camco or Advantage may have been affected by
any Hazardous Substances. Camco and Advantage possess all permits, registrations
and other governmental authorizations required under any Environmental
Requirements for the operation of the business of Camco and Advantage.
(b) There is no Environmental Claim, investigation or inquiry
pending or, to the knowledge of Camco or Advantage, threatened against (i) Camco
or Advantage, (ii) any person or entity whose liability for any Environmental
Claim has or may have been retained or assumed by Camco or Advantage either
contractually or by operation of law, or (iii) any real or personal property
which Camco or Advantage owns, leases, manages, supervises or participates in
the management of, or, to the knowledge of Camco or Advantage, in which Camco or
Advantage holds a security interest in connection with a loan or loan
participation.
(c) To the knowledge of Camco and Advantage, there are no
present or past activities, conditions, or incidents, including, without
limitation, the release or disposal of any Material of Environmental Concern,
that could reasonably form the basis of any Environmental Claim against Camco or
Advantage or against any person or entity whose liability for any Environmental
Claim has or may have been retained or assumed by Camco or Advantage, either
contractually or by operation of law.
SECTION 4.19. STOCK OWNERSHIP. Neither Camco nor any of its
"affiliates" or "associates," as the terms "affiliates" and "associates" are
defined in ss. 1704.01(C)(1) of the OGCL, are "beneficial owners," as the term
"beneficial owners" is defined in ss. 1704.01(C)(4) of the OGCL, of any of the
outstanding common shares of CFKY.
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ARTICLE FIVE
COVENANTS
SECTION 5.01. CONDUCT OF CFKY'S AND THE BANK'S BUSINESS. From
the date of this Agreement until the Effective Time, CFKY and the Bank, except
with the prior written consent of Camco, which shall not be unreasonably
withheld, will each conduct its business only in the ordinary course, in
accordance with past practices and policies and in compliance with all
applicable statutes, rules and regulations. Notwithstanding the foregoing,
without the prior written consent of Camco, which shall not be unreasonably
withheld, neither CFKY nor the Bank will:
(a) Authorize or agree to authorize the creation or
issuance of, or issue, sell or dispose of, or create
any obligation to issue, sell or dispose of, any
stock, notes, bonds or other securities of which CFKY
or the Bank is the issuer, or any obligations
convertible into or exchangeable for any shares of
its capital stock, other than CFKY shares issued in
connection with the exercise of CFKY options;
(b) Declare, set aside, pay or make any dividend or other
distribution on its capital stock, or directly or
indirectly redeem, purchase or otherwise acquire any
shares thereof or enter into any agreement with
respect to the foregoing, except for quarterly cash
dividends which may be declared and paid in
accordance with Section 5.04 of this Agreement;
(c) Effect any stock split, recapitalization,
combination, exchange of shares, readjustment or
other reclassification;
(d) Amend their articles of incorporation, code of
regulations, charter or bylaws, except to amend the
Articles of Incorporation of CFKY to eliminate
Article Seventh and to amend the Charter of the Bank
to eliminate Section 8.A.;
(e) Purchase, sell, assign or transfer any material
tangible asset or any material patent, trademark,
trade name, copyright, license, franchise, design or
other intangible assets or property;
(f) Mortgage, pledge, grant or suffer to exist any lien
or other encumbrance or charge on any assets or
properties, tangible or intangible, except for liens
for taxes not yet delinquent, assets pledged as
collateral to secure borrowings from the FHLB or to
secure public deposits and such other liens,
encumbrances or charges which do not materially or
adversely affect its financial position;
(g) Waive any rights of material value or cancel any
material debts or claims;
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(h) Incur any material obligation or liability (absolute
or contingent), including, without limitation, any
tax liability, or pay any material liability or
obligation (absolute or contingent), other than
liabilities and obligations incurred in the ordinary
course of business and borrowings from the FHLB;
(i) [Reserved];
(j) Except as specifically provided herein, enter into or
amend any employment contract with any of its
employees, increase the compensation payable to any
employee or director or any relative of any such
employee or director or become obligated to increase
any such compensation;
(k) Except as specifically provided herein (or as
required by applicable law), adopt or amend in any
material respect any employee or director benefit
plan, severance plan or collective bargaining
agreement or make any contributions to or awards or
distributions under any employee benefit plan not
consistent with past practice or custom;
(l) Acquire any stock or other equity interest in any
corporation, partnership, trust, joint venture or
other entity;
(m) Make any material capital expenditure or commitment
for any material addition to property, plant, or
equipment;
(n) Originate or issue a commitment to originate any loan
secured by one- to four-family residential real
estate in a principal amount of $250,000 or more or
any loan secured by nonresidential real estate in a
principal amount of $250,000 or more;
(o) Except for FHLB advances, the aggregate amount of
which at any time shall not exceed Seven Million
Dollars ($7,000,000), plus such additional amount as
may be obtained with the right of prepayment at any
time without penalty or premium, and deposit taking
in the ordinary course of its business, borrow or
agree to borrow any funds, including but not limited
to repurchase transactions, or indirectly guarantee
or agree to guarantee any obligations of others;
(p) Establish any new lending programs or make any
changes in its policies concerning which persons may
approve loans;
(q) Enter into any securities transactions for its own
account or purchase or otherwise acquire any
investment security for its own account other than
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U.S. Government and U.S. agency obligations and
deposits in an overnight account at the FHLB;
(r) Increase or decrease the rate of interest paid on
time deposits or certificates of deposits, except in
a manner and pursuant to policies consistent with
past practices in relation to rates prevailing in the
Bank's market;
(s) Foreclose upon or otherwise take title to or
possession or control of any real property without
first obtaining a Phase I Environmental Report
thereon which indicates that the property is free of
pollutants, contaminants or hazardous or toxic waste
materials including asbestos and petroleum products;
provided, however, that the Bank shall not be
required to obtain such a report with respect to
single-family, non-agriculture residential property
of one acre or less to be foreclosed upon unless it
has reason to believe such property may contain any
such pollutants, contaminants, waste materials
including asbestos or petroleum products; or
(t) Agree, whether in writing or otherwise, to take any
action described in this Section 5.01.
SECTION 5.02. ACQUISITION TRANSACTIONS. CFKY and the Bank
shall (i) not, directly or indirectly, solicit or initiate any proposals or
offers from any person or entity, or discuss or negotiate with any such person
or entity, regarding any acquisition or purchase of all or a material amount of
the assets of, any equity securities of, or any merger, consolidation or
business combination with, CFKY or the Bank (collectively, "Acquisition
Transactions"), (ii) not disclose to any person any information not customarily
disclosed publicly or provide access to its properties, books or records or
otherwise assist or encourage any person in connection with any of the
foregoing, and (iii) give Camco prompt notice of any such inquiries, offers or
proposals. The foregoing sentence shall not apply however to the consideration,
negotiation and consummation of an Acquisition Transaction not solicited by CFKY
or the Bank or any of their respective officers, directors, agents or affiliates
if and to the extent that the board of directors of CFKY reasonably determines
in good faith after consultation with KBW and upon written advice of counsel to
CFKY that failure to consider such Acquisition Transaction could reasonably be
expected to constitute a breach of its fiduciary duties to the shareholders of
CFKY; provided, however, that CFKY shall give Camco prompt notice of any such
proposal of an Acquisition Transaction and keep Camco promptly informed
regarding the substance thereof and the response of the board of directors of
CFKY thereto.
SECTION 5.03. ACCOUNTING POLICIES. Before the Effective Time
and at the request of Camco, CFKY or the Bank shall promptly (a) establish and
take such reserves and accruals to conform the Bank's loan, accrual and reserve
policies to Camco's policies; (b) establish and take such accruals, reserves and
charges in order to implement such policies in respect of excess facilities and
equipment capacity, severance costs, litigation matters, write-off or write-down
of
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various assets and other appropriate accounting adjustments; and (c) recognize
for financial accounting purposes such expenses of the Merger and restructuring
charges related to or to be incurred in connection with the Merger, to the
extent permitted by law and consistent with GAAP; provided, however, that
neither CFKY nor the Bank shall be obligated to make any such changes or
adjustments until the satisfaction of all conditions set forth in Sections
7.01(a) through (e), and further provided that no basis for termination of this
Agreement by any party pursuant to Article Eight is then extant.
SECTION 5.04 CFKY DIVIDENDS. Prior to the Effective Time, the
board of directors of CFKY may continue to declare and pay cash dividends on the
CFKY Shares in an amount not to exceed $.07 per quarter at such times as are
consistent with past practice; provided, however, that CFKY shall coordinate the
declaration of any dividends with Camco for the quarter in which the Closing is
expected to occur such that the CFKY Shareholders shall not receive a dividend
for such quarter from both CFKY before the Effective Time and from Camco after
the Effective Time.
ARTICLE SIX
FURTHER AGREEMENTS
SECTION 6.01. REGULATORY APPROVALS; COOPERATION. (a) Camco,
Merger Sub and Advantage shall use their best efforts to file within 60 days of
the date hereof all Regulatory Applications required in order to consummate the
Merger. Camco shall keep CFKY reasonably informed as to the status of the
Regulatory Applications and make available to CFKY copies of the Regulatory
Applications as filed and any supplementary filed materials and all responses
from the regulatory authorities.
(b) CFKY and the Bank will cooperate and will cause their
respective directors, officers, employees, agents and advisors to cooperate, to
the extent reasonable or necessary, with Camco in connection with the
preparation of the Regulatory Applications and the Registration Statement.
(c) Camco will cooperate and will cause its directors,
officers, employees, agents and advisors to cooperate, to the extent reasonable
or necessary, with CFKY in connection with the preparation of the Proxy
Statement.
SECTION 6.02. SPECIAL MEETING OF SHAREHOLDERS OF CFKY. CFKY
shall take all steps necessary to duly call, give notice of, convene and hold a
meeting of its shareholders for the purpose of voting upon this Agreement as
required by applicable law. CFKY shall use its reasonable efforts to hold such
meeting as soon as practicable following the date of this Agreement. The board
of directors of CFKY shall (i) to the extent consistent with their fiduciary
duties, recommend to its shareholders the adoption of this Agreement, the
approval of the amendment to the Articles of Incorporation of CFKY to eliminate
Article Seventh and the approval of the transactions contemplated hereby and any
other matters to be submitted to the shareholders in connection therewith, and
(ii) use their reasonable efforts to obtain the necessary
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adoption by the shareholders of this Agreement and any amendments hereto, the
amendment to the Articles of Incorporation of CFKY to eliminate Article Seventh
and the transactions contemplated hereby. Notwithstanding the foregoing, if the
board of directors of CFKY shall have reasonably determined in good faith in
accordance with the provisions of Section 5.02 of this Agreement that such
recommendation is reasonably likely to constitute a breach of its fiduciary
duties to the shareholders of CFKY, then the board of directors of CFKY shall
not be obligated to recommend to its shareholders adoption of this Agreement or
to present this Agreement to the shareholders of CFKY for their adoption at the
CFKY Shareholders Meeting or to hold the CFKY Shareholders Meeting for such
purpose.
SECTION 6.03. AFFILIATES COMPLIANCE WITH THE 1933 ACT. (a)
Section 6.03 of the CFKY Disclosure Schedule identified all persons who CFKY
reasonably believes to be "affiliates," as defined in paragraphs (c) and (d) of
Rule 145 under the 1933 Act (the "Affiliates"). Until the Effective Time, CFKY
shall identify to Camco each additional person whom it reasonably believes to
have hereafter become its Affiliate.
(b) CFKY shall use its best efforts to obtain from each person
who is identified as an Affiliate for delivery to Camco before the Effective
Time a written agreement in which such Affiliate confirms that the Camco Shares
received by such Affiliate in the Merger shall be transferable only in
accordance with Rule 145 of the 1933 Act.
SECTION 6.04. EMPLOYEES. (a) All employees of the Bank as of
the date of this Agreement who are actively employed at the Effective Time
shall, upon satisfactory review of employment files and subject to Camco
employee standards of performance, continue as employees of Advantage at the
Effective Time and, with respect to employees who are not currently covered by a
written employment or severance agreement with the Bank, shall be employed as at
will employees at the same base compensation they are receiving from the Bank.
Each Bank employee immediately before the Effective Time who is not currently
covered by a written employment or severance agreement with the Bank and who
Camco or Advantage elects not to employ after the Effective Time or whose
employment is involuntarily terminated by Camco or one or more of its
subsidiaries without cause within one year after the Effective Time shall
receive an employment severance payment equal to the product of two weeks of the
employee's then current salary multiplied by the number of total years of
service as a Bank employee; provided, however, that the minimum severance
payment shall equal four weeks' salary and the maximum severance payment shall
equal twenty-six weeks' salary.
(b) Any employee who is currently covered by a written
employment or severance agreement will continue his employment in accordance
with the terms of such written agreement.
SECTION 6.05. EMPLOYEE BENEFITS. (a) On and after the
Effective Time, Camco may, in its discretion, continue the health insurance plan
currently sponsored by the Bank for the benefit of its employees or provide
coverage under the health insurance plan maintained by Camco for the benefit of
the employees of Camco and its subsidiaries; provided, however, that if Camco
elects to provide coverage under the Camco health plan as of the Effective Time,
any
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waiting periods or pre-existing condition limitations shall be waived for
employees of the Bank who continue as employees of Advantage.
(b) CFKY and the Bank shall take all steps necessary to cease
benefit accruals under the DB Plan and shall take all steps necessary to
terminate CFKY's 401(k) Plan at or prior to the Effective Time (or, if the
multiple employer plan through which it is maintained does not permit
termination, to take all steps to ensure that no additional contributions are
required or permitted after the Effective Time and that no additional benefits
accrue after the Effective Time) and to liquidate the 401(k) Plan assets as soon
as possible after the Effective Time. Subject to applicable law and regulation,
employees of the Bank who become employees of Advantage shall become
participants in the Camco 401(k) Plan as of the Effective Time, in accordance
with the terms and conditions of such Plan as then in effect, with prior service
credit given for their years of employment by the Bank for eligibility and
vesting purposes.
(c) The CFKY ESOP shall be terminated and the net assets
thereof shall be distributed as described in Section 6.06 as expeditiously as
possible after the Effective Time.
(d) No additional contribution shall be made to the CFKY ESOP
or CFKY's 401(k) Plan by Camco, Advantage, CFKY or the Bank except as necessary
to make the minimum required payment under the current exempt loan (the "ESOP
Loan") between CFKY and the CFKY ESOP or to satisfy any matching contribution
required under the terms of CFKY's 401(k) Plan; provided, however, that all such
contributions shall be deductible by CFKY and the Bank under Section 404 of the
Code and the allocations of such contributions shall otherwise be in compliance
with Section 415 of the Code.
(e) CFKY and the Bank have delivered true and complete copies
of the DB Plan and the 401(k) Plan to Camco. CFKY and the Bank shall (i) use
their reasonable best efforts to cause Pentegra to promptly file with the IRS an
application for determination letters to the effect that the DB Plan and the
401(k) Plan each complies with all applicable provisions of the Code and that
the trust associated with each such plan is exempt from taxes under Code Section
501, and (ii) promptly notify Camco of the amount of any fines, penalties or
other costs that are assessed or threatened against CFKY or the Bank as a result
of the failure to have previously obtained determination letters for the DB Plan
and the 401(k) Plan (the "Benefit Plan Cost").
SECTION 6.06. TERMINATION OF CFKY ESOP. (a) Subject to the
Code and relevant regulations, as soon as practicable following the date of this
Agreement, CFKY and the Bank will (i) amend the ESOP to incorporate any
additional provisions required by law and (ii) submit an application to the IRS
requesting a determination letter to the effect that the CFKY ESOP, as initially
established and as subsequently amended to comply with laws enacted after the
CFKY ESOP was established, complies with Section 401(a) of the Code.
(b) Prior to the Effective Time, CKFY shall continue to accrue
compensation expense with respect to the CFKY ESOP only to the extent necessary
to make any principal and interest payments required to be made on the current
exempt loan from CFKY to the CFKY
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ESOP (the "ESOP Loan") between the date of this Agreement and the Effective
Time. At the Effective Time, any amounts so accrued shall be applied toward
repayment of the ESOP Loan, after which an appropriate number of CFKY shares
shall be allocated as promptly as possible by the CFKY ESOP trustee to the
accounts of CFKY ESOP participants, as defined in the CFKY ESOP (the "ESOP
Participants") in accordance with the allocation provisions of the CFKY ESOP and
applicable law; provided, however, that any such contribution shall be
deductible by CFKY and the Bank under Section 404 of the Code and the
allocations of such contribution shall otherwise be in compliance with Section
415 of the Code.
(c) All CFKY shares held by the trustee of the CFKY ESOP at
the Effective Time shall be exchanged by the CFKY ESOP trustee for the Per Share
Merger Consideration. The trustee of the CFKY ESOP shall surrender to Camco a
number of shares held in the suspense account of the CFKY ESOP or pay cash, at
the election of Camco, for the purpose of retiring the ESOP Loan. The number of
Camco shares to be surrendered, if any, shall be based upon the fair market
value of such shares at the time of surrender. Any Camco shares and other assets
remaining in the suspense account following the repayment of the ESOP Loan in
full shall be allocated as promptly as possible by the CFKY ESOP trustee to ESOP
Participants in accordance with the allocation provisions of the CFKY ESOP and
applicable law. It is the intent of the parties that the CFKY ESOP be terminated
concurrently with the Effective Time and that the distributions be made as soon
thereafter as possible, provided that no distribution shall be made until a
final determination letter is received from the IRS.
(d) After the Effective Time, and while the determination
letter application described in Section 6.06(a) is pending, the current
administrator of the CFKY ESOP, or another administrator selected by Camco
(subject to consultation with the then current trustee), shall continue to
administer the CFKY ESOP subsequent to the Effective Time, and the current
trustee of the CFKY ESOP, or such other trustee(s) selected by Camco (subject to
consultation with the then current trustee) or the administrators, shall
continue to be the Trustee subsequent to the Effective Time.
(e) Camco and CFKY agree that the CFKY ESOP shall be amended
to the extent necessary to receive a favorable determination letter from the IRS
as to the tax qualified status of the CFKY ESOP upon its termination under
Section 401(a) and 4975(e)(7) of the Code (the "Final Determination Letter").
Following the receipt of the Final Determination Letter, distributions of the
account balances under the CFKY ESOP shall be made to the ESOP Participants.
From and after the date hereof, in anticipation of such termination and
distribution, CFKY and the Bank prior to the Effective Time, and Camco after the
Effective Time, shall use their best efforts to obtain the favorable Final
Determination Letter. In the event that CFKY and the Bank, prior to the
Effective Time, and Camco after the Effective Time, reasonably determine that
the CFKY ESOP cannot obtain a favorable Final Determination Letter, or that the
amounts held therein cannot be applied, allocated or distributed without causing
the CFKY ESOP to lose its tax qualified status, CFKY and the Bank prior to the
Effective Time and Camco after the Effective Time shall take such action as they
may reasonably determine is necessary to preserve, to the extent possible, the
tax status of the CFKY ESOP and its trust, the tax characterization of
distributions to ESOP Participants, the allocation of the Per Share Merger
Consideration as
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described in Section 6.06(c) to those employees who are ESOP Participants as of
the Effective Time and the liquidation of the CFKY ESOP trust. All CFKY ESOP
Participants shall fully vest and have a nonforfeitable interest in their
accounts under the CFKY ESOP determined as of the termination date.
SECTION 6.07. RECOGNITION AND RETENTION PLAN. The existing RRP
awards listed in Section 3.28(a) of the CFKY Disclosure Schedule will become
earned and nonforfeitable upon the execution of this Agreement. No other awards
shall be made under the RRP after the date of this Agreement. Prior to the
Effective Time, CFKY shall terminate the RRP and shall direct the RRP committee
and/or the trustee, if appropriate, to return any unawarded or forfeited CFKY
Shares to CFKY and the committee and/or the trustee shall promptly effect such
directive.
SECTION 6.08. ACCESS. Until the Effective Time, CFKY and the
Bank shall afford to Camco, and Camco shall afford to CFKY and the Bank, and to
their respective officers and representatives (including, without limitation,
counsel, financial advisers and independent accountants), reasonable access to
their properties, personnel, books, records and affairs. Such access shall
include, but shall not be limited to, (i) permitting verification, by audit or
otherwise, of any representation or warranty made hereunder; (ii) authorizing
release of any information (including the work papers of such independent
auditors and financial consultants); (iii) consistent with applicable
regulations or procedures, furnishing regular and special examination reports
since the date of this Agreement; and (iv) delivering copies of all documents or
reports or correspondence filed and any correspondence with any federal
regulatory or supervisory agency from the date of this Agreement. Each party
shall furnish the other party with such additional financial and operating data
and other information as to its businesses and properties as may be reasonably
requested.
SECTION 6.09. CONFIDENTIALITY. The parties acknowledge the
confidential and proprietary nature of the information as hereinafter described
which has heretofore been exchanged and which will be received from each other
hereunder (the "Information") and agree to hold and keep the same confidential.
Such Information will include any and all financial, technical, commercial,
marketing, customer or other information concerning the business, operations and
affairs of a party that may be provided to the other, irrespective of the form
of the communications, by such party's employees or agents. Such Information
shall not include information that is or becomes generally available to the
public other than as a result of a disclosure by a party or its representatives
in violation of this Agreement, or Information which is required to be furnished
or used in connection with legal proceedings. The parties agree that the
Information will be used solely for the purposes contemplated by this Agreement
and that such Information will not be disclosed to any person other than
employees and agents of a party who are directly involved in evaluating the
transaction. The Information shall not be used in any way detrimental to a
party, including use directly or indirectly in the conduct of the other party's
business or enterprise in which such party may have an interest, now or in the
future, and whether or not now in competition with such other party. Upon the
written request of the disclosing party, upon termination of this Agreement, the
other parties will promptly return or destroy Information in their possession
and certify to the disclosing party that the party has done so.
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SECTION 6.10. PRESS RELEASES. Camco and CFKY shall consult
with each other before issuing any press release or otherwise making any public
statements with respect to the transactions contemplated by this Agreement and
shall not issue any such press release or make any such public statement without
obtaining the prior consent of the other party, except as may be required by law
or by obligations pursuant to any listing agreement with any national securities
association.
SECTION 6.11. COSTS AND EXPENSES; TERMINATION FEE. Except as
set forth in Section 6.18 of this Agreement and as set forth below, whether or
not the Corporate Merger is consummated, all costs and expenses incurred in
connection with this Agreement, the Proxy Statement, the Registration Statement
and the transactions contemplated hereby shall be paid by the party incurring
such costs and expenses. Notwithstanding the foregoing, in the event (i) the
board of directors of CFKY or the Bank accepts in any manner an Acquisition
Transaction prior to the earlier of (x) termination of this Agreement for any
reason other than in connection with a breach of this Agreement by CFKY or the
Bank, or (y) August 31, 2002, or (ii) the board of directors of CFKY fails to
recommend to the shareholders of CFKY approval of the Agreement and the
Agreement is rejected by the shareholders of CFKY; or (iii) no meeting of
shareholders is held on or before December 31, 2001, other than for reasons
beyond the control of CFKY, then CFKY shall pay to Camco $1,250,000 in
immediately available federal funds, as follows: (A) in the case of the
execution of any definitive agreement or letter of intent in respect of an
Acquisition Transaction prior to the earlier of (x) termination of this
Agreement for any reason other than in connection with a breach of this
Agreement by CFKY or the Bank, or (y) August 31, 2002, such payment shall be
made within two days of the execution of such agreement or letter of intent, (B)
in the case of the disapproval by the shareholders of CFKY of this Agreement
where the board of directors of CFKY has failed to recommend approval, such
payment shall be made within two days after the date of the CFKY Shareholders
Meeting, and (C) if no meeting of shareholders is held by December 31, 2001,
other than for reasons beyond the control of CFKY, such payment to be made
within two days after December 31, 2001.
SECTION 6.12. REASONABLE EFFORTS. Subject to the terms and
conditions herein provided, each of the parties hereto agrees to use all
reasonable efforts to take, or cause to be taken, all action, and to do or cause
to be done all things necessary, proper or advisable under applicable laws and
regulations to consummate and make effective the transactions contemplated by
this Agreement.
SECTION 6.13. NOTIFICATION OF EVENTS. At all times from the
date of this Agreement until the Effective Time, each party shall promptly
notify the other in writing of any materially adverse business conditions
threatening its normal business operations or of the occurrence of any event or
the failure of any event to occur which might reasonably be expected to result
in a breach of or a failure to comply with any representation, warranty,
covenant, condition or agreement contained in this Agreement or of the
commencement of any action, suit, proceeding or investigation against it.
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SECTION 6.14. VOTING AGREEMENT. Concurrently with the
execution and delivery of this Agreement, and as a condition and material
inducement to Camco's willingness to enter into this Agreement, each of the
directors and executive officers of CFKY and the Bank shall enter into a CFKY
Shareholder Agreement in the form attached hereto as Exhibit B.
SECTION 6.15. [RESERVED].
SECTION 6.16. INDEMNIFICATION. (a) From the Effective Time and
continuing for a period of three years thereafter, the current and former
officers and directors of CFKY shall be indemnified by Camco from their acts and
omissions occurring prior to the Effective Time to the extent permitted by the
certificate of incorporation and bylaws of Camco or the articles of
incorporation and code of regulations of CFKY and applicable law. From the
Effective Time and continuing for a period of three years thereafter, the
current and former officers and directors of the Bank shall be indemnified by
Advantage for their acts and omissions occurring prior to the Effective Time to
the extent permitted by the articles of incorporation and constitution of
Advantage or the Charter and Bylaws of the Bank and applicable law. As a
condition to receiving such indemnification, the party claiming indemnification
shall assign to Camco, by separate writing, all right, title and interest in and
to the proceeds of the claiming party's applicable insurance coverage, if any,
including insurance maintained or provided by Camco or CFKY or the Bank to the
extent of such indemnity. No person shall be entitled to such indemnification
with respect to a claim (i) if such person fails to cooperate in the defense and
investigation of such claim as to which indemnification may be made, (ii) made
by such person against Camco, its subsidiaries, CFKY or the Bank arising out of
or in connection with this Agreement, the transactions contemplated hereby or
the conduct of the business of Camco, its subsidiaries, CFKY or the Bank, or
(iii) if such person fails to deliver such notices as may be required under any
applicable directors and officers liability insurance policy to preserve any
possible claims of which the claiming party is aware, to the extent such failure
results in the denial of payment under such policy.
(b) Camco shall designate one of the following two
alternatives for providing directors' and officers' liability coverage for the
directors and officers of CFKY and the Bank: (i) CFKY shall obtain extended
reporting or "tail" coverage for three years under the director and officer
liability policy currently maintained by CFKY and the Bank or (ii) subject to
CFKY and the Bank providing all requested information and representations to
Camco's directors' and officers' liability insurance carrier, Camco shall add a
rider, to be effective at the Effective Time, to Camco's existing directors' and
officers' liability insurance policy covering the acts and omissions of the
officers and directors of CFKY and the Bank occurring prior to the Effective
Time and to continue such rider for a period of three years. Camco's obligation
under this Section 6.16(b) shall be limited to an aggregate amount not to exceed
150% of the annual premium for the director and officer liability policy
currently maintained by CFKY and the Bank.
SECTION 6.17. CONDUCT OF CAMCO BUSINESS. From the date of this
Agreement until the Effective Time, Camco shall:
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(a) Use all reasonable efforts to preserve intact its business
organization and assets and maintain its rights, franchises and existing
relationships with customer, suppliers, employees and business associates;
(b) Notify CFKY in writing within five business days of (i)
the existence of any adverse business conditions threatening the normal business
operations of Camco, (ii) the occurrence of any event or the failure of any
event to occur which might result in a breach of or a failure to comply with any
representations, warranty, covenant, condition or agreement by or pertaining to
Camco contained in this Agreement, (iii) the commencement of any material
action, suit, proceeding, or investigation against Camco, and (iv) the tender of
any offer to acquire Camco by merger or otherwise;
(c) Take no action that would adversely affect the ability of
Camco to obtain any necessary approvals of governmental authorities required for
the transactions contemplated hereby without the imposition of a burdensome
restriction or condition, or adversely affect the ability of Camco to perform
its covenants and agreements under this Agreement; and
(d) Take all action necessary to cause to be listed on The
Nasdaq Stock Market the Camco Shares to be issued pursuant to this Agreement.
SECTION 6.18. TITLE INSURANCE AND ENVIRONMENTAL STUDIES. (a)
Camco may, in its discretion, and at its expense, obtain title insurance
policies or commitments for any or all of the Real Properties.
(b) Camco and CFKY shall jointly select and retain an expert
to perform environmental inspections of the Real Properties. The scope of such
environmental inspections shall include (i) matters typically covered in an
Environmental Site Assessment "Phase One" investigation in accordance with
American Society for Testing Materials E 1527-00, (ii) a physical inspection
(including sampling) of the Real Properties to identify the presence, location,
amounts and condition of Hazardous Substances, (iii) any additional inspections
or tests required to further investigate potential problems identified in the
"Phase One" investigation and physical inspections, (iv) an estimate of the cost
to take any remedial or other corrective actions and measures which the expert
determines (A) are presently required by applicable law, (B) would be required
to be taken in connection with any reasonable renovation or demolition of the
property, or (C) are prudent in light of serious health or safety concerns
(collectively, the "Environmental Costs Estimate"), and (v) such other items as
may be agreed upon by Camco and CFKY.
If Camco and CFKY have not agreed upon an acceptable
expert on or before June 15, 2001, Camco shall select an expert and shall give
CFKY written notice identifying the expert selected by Camco. If CFKY objects to
the expert selected by Camco, CFKY shall give written notice to Camco within
five business days of receipt by CFKY of the notice from Camco identifying an
expert acceptable to CFKY. The experts selected by Camco and CFKY shall then
jointly select a third expert to conduct the inspections.
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If it is necessary to engage a different expert to
provide the Environmental Costs Estimate from that which conducts the
environmental inspections, the same procedure described above shall be used for
the selection of such other expert; provided, however, that the applicable date
for agreeing upon a mutually acceptable expert in such case shall be five
business days following the receipt of the report of the first expert who
conducted the inspections.
Camco shall pay the fees and expenses of the expert;
provided, however, if CFKY terminates this Agreement pursuant to Section
8.01(d)(ii), CFKY shall reimburse Camco for such fees and expenses.
SECTION 6.19. AMENDMENT TO CFKY ARTICLES AND CHARTER OF THE
BANK. (a) The board of directors of CFKY shall take all steps necessary to amend
the Articles of Incorporation of CFKY to eliminate Article Seventh and shall use
its best efforts to cause the shareholders of CFKY to approve such amendment.
(b) The Bank shall take all steps necessary to amend the
Charter of the Bank to eliminate Section 8.A. CFKY, as the sole shareholder of
the Bank, agrees to vote its shares of the Bank in favor of the amendment to the
Charter of the Bank to eliminate Section 8.A.
ARTICLE SEVEN
CLOSING MATTERS
SECTION 7.01. CONDITIONS TO OBLIGATIONS OF CAMCO, MERGER SUB,
ADVANTAGE, CFKY AND THE BANK. Notwithstanding any other provision of this
Agreement, the obligations of Camco, Merger Sub, Advantage, CFKY and the Bank to
effect the Corporate Merger and the Bank Merger shall be subject to the
fulfillment of each of the following conditions:
(a) This Agreement shall have been validly adopted by the
affirmative vote of the holders of at least the number of
outstanding CFKY Shares required under Ohio law and CFKY's
Articles of Incorporation and Code of Regulations;
(b) All permits, approvals, consents, authorizations,
exemptions or waivers of any federal or state governmental
body or agency necessary or appropriate for consummation of
the Merger shall have been obtained and all notices required
to be filed shall have been filed and any objection or waiting
period with respect to each such notice shall have expired;
(c) All waivers, consents and approvals of every person, in
addition to those required under subsections (a) and (b) of
this Section 7.01, necessary or appropriate for the
consummation of the Corporate Merger and the Bank Merger shall
have been obtained;
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(d) There shall not be in effect any federal or state law,
rule or regulation or any order or decision of a court of
competent jurisdiction which prevents or materially delays the
consummation of the Corporate Merger or the Bank Merger; and
(e) The Registration Statement (including any post-effective
amendment thereto) shall have been declared effective by the
SEC, and no proceeding shall be pending or, to the knowledge
of Camco or CFKY, threatened by the SEC to suspend the
effectiveness of the Registration Statement.
SECTION 7.02. CONDITIONS TO OBLIGATIONS OF CAMCO. In addition
to the conditions contained in Section 7.01 of this Agreement, the obligations
of Camco, Merger Sub and Advantage to effect the Corporate Merger and the Bank
Merger shall also be subject to the fulfillment of each of the following
conditions unless fulfillment is waived by Camco in writing:
(a) The representations and warranties of CFKY and the Bank
contained in Article Three of this Agreement shall be true in
all material respects at and as of the date hereof and at and
as of the day of the Closing as if made at and as of such
time, except as otherwise permitted or required by this
Agreement or where such representation or warranty is
expressly made as of a specific date;
(b) CFKY and the Bank shall have duly performed and complied
in all material respects with all agreements, covenants and
conditions required by this Agreement to be performed or
complied with by CFKY and the Bank before or on the day of the
Closing;
(c) There shall not have been a material adverse change in the
financial condition, assets, liabilities, obligations,
properties, business or prospects of CFKY or the Bank after
the date of this Agreement, except (i) changes resulting from
action taken by CFKY or the Bank pursuant to Section 5.03 or
Section 6.07 of this Agreement, (ii) changes resulting from or
attributable to reasonable expenses incurred in connection
with the transactions contemplated by this Agreement, (iii)
changes in law or regulations affecting financial institutions
or their holding companies, (iv) changes in generally accepted
accounting principles or regulatory accounting principles
applicable to financial institutions and their holding
companies, and (v) changes in economic conditions applicable
to depository institutions generally or in general levels of
interest rates;
(d) CFKY and the Bank shall each have delivered to Camco a
certificate dated the day of the Closing and signed by the
President of each of CFKY and the Bank to the effect set forth
in subsections (a), (b) and (c) of this Section 7.02;
(e) There shall not be any action or proceeding commenced by
or before any court or governmental agency or authority in the
United States, or threatened by any governmental agency or
authority in the United States, that challenges or
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seeks to prevent or delay the consummation of the Merger or
seeks to impose material limitations on the ability of Camco to
exercise full rights of ownership of the assets or business of
CFKY and the Bank;
(f) There shall not have been proposed, nor shall there be in
effect, any federal or state law, rule, regulation, order or
statement of policy that, in the reasonable judgment of Camco,
would: (i) prevent or delay the consummation of the Merger or
interfere with the reasonable operation of the business of CFKY
or the Bank (ii) materially adversely affect the ability of
Camco to enjoy the economic or other benefits of the Merger, or
(iii) impose any material adverse condition, limitation or
requirement on Camco in connection with the Merger;
(g) CFKY and the Bank shall not have incurred any damage,
destruction or similar loss, not covered by insurance,
materially affecting its businesses or properties;
(h) The shareholders' equity of CFKY on the day of the Closing
and as calculated in accordance with GAAP shall not be less than
$29.0 million, without giving effect to (i) reserves, accruals
and charges taken or established by CFKY or the Bank at the
request of Camco in accordance with Section 5.03 of this
Agreement, (ii) reasonable expenses incurred in connection with
the transactions contemplated by this Agreement, (iii) realized
or unrealized gains or losses on securities classified as
available for sale in the CFKY Audited Financials, (iv)
dividends paid in accordance with Section 5.04 of this
Agreement, or (v) expenses incurred pursuant to Section 6.07 of
this Agreement;
(i) CFKY and the Bank shall have complied with Section 5.03
hereof to the reasonable satisfaction of Camco;
(j) Camco shall have received the affiliate letters required by
Section 6.03 of this Agreement;
(k) The holders of not more than 10% of the outstanding CFKY
Shares shall have sought relief as Dissenting Shareholders; and
(l) The Bank shall have provided Camco with adequate records
with respect to the liquidation account, and such records are
current and complete.
The fulfillment of any one or all of the foregoing conditions
may be waived in the sole discretion of the board of directors of Camco.
SECTION 7.03. CONDITIONS TO OBLIGATIONS OF CFKY AND THE BANK. In
addition to the conditions contained in Section 7.01 of this Agreement, the
obligations of CFKY and the Bank to effect the Corporate Merger and the Bank
Merger shall also be subject to the fulfillment of each of the following
conditions:
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(a) The representations and warranties of Camco, Merger Sub
and Advantage contained in Article Four of this Agreement
shall be true in all material respects at and as of the date
hereof and at and as of the date of the Closing as if made at
and as of such time, except as otherwise permitted or required
by this Agreement or where such representation or warranty is
expressly made as of a specific date;
(b) Camco, Merger Sub and Advantage shall have duly performed
and complied in all material respects with all agreements,
covenants and conditions required by this Agreement to be
performed or complied with by them before or at the Closing;
(c) There shall not have been a material adverse change in the
financial condition, assets, liabilities, obligations,
properties, business or prospects of Camco after the date of
this Agreement, except (i) changes resulting from or
attributable to expenses incurred in connection with the
transactions contemplated by this Agreement; (ii) changes in
law or regulations affecting financial institutions or their
holding companies; (iii) changes in generally accepted
accounting principles or regulatory accounting principles
applicable to financial institutions and their holding
companies; and (iv) changes in economic conditions applicable
to depository institutions generally or in general levels of
interest rates;
(d) Camco, Merger Sub and Advantage shall each have delivered
to CFKY a certificate dated the day of the Closing and signed
by the President of each of Camco, Merger Sub and Advantage to
the effect set forth in subsections (a) and (b) of this
Section 7.03, and a certificate dated the day of the Closing
and signed by the President of Camco to the effect set forth
in subsection (c) of this Section 7.03;
(e) The market value of a Camco Share shall be equal to or
greater than $9.25 based on the Camco closing price for the
ten trading days ending five calendar days prior to the date
of the Closing; provided, however, that this condition shall
be deemed to have been satisfied if the Camco Share market
value, as described above, is less than $9.25 and Camco
elects, in its sole discretion, to increase either the cash
portion of the Per Share Merger Consideration or the Camco
Share Consideration such that the value of the Per Share
Merger Consideration, before giving effect to any adjustments
pursuant to Section 1.02(a)(iii) and (iv) of this Agreement,
shall be not less than $10.30; and
(f) CFKY shall have received the written opinion of KBW dated
the date of the Proxy Statement to the effect that the Per
Share Merger Consideration is fair to the holders of the CFKY
Common Shares from a financial point of view as of such date.
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The fulfillment of any one or all of the foregoing conditions
may be waived in the sole discretion of the board of directors of CFKY.
ARTICLE EIGHT
TERMINATION
SECTION 8.01. TERMINATION. This Agreement may be terminated at
any time prior to the date of the Closing, whether before or after approval by
the shareholders of CFKY:
(a) By mutual consent of the boards of directors of CFKY and
Camco; or
(b) By the board of directors of CFKY or Camco, in their
sole discretion, if:
(i) The Merger shall not have been consummated on or
before February 28, 2002;
(ii) Any event occurs which, in the reasonable
opinion of either Camco or CFKY, would preclude
satisfaction of any of the conditions set forth
in Section 7.01 of this Agreement; or
(c) By the board of directors of Camco, in its sole
discretion, if any event occurs which, in the reasonable
opinion of such board, would preclude compliance with
any of the conditions set forth in Section 7.02 of this
Agreement.
(d) By the board of directors of CFKY, in its sole
discretion, if:
(i) any event occurs which, in the reasonable
opinion of such board, would preclude compliance
with any of the conditions set forth in Section
7.03 of this Agreement; or
(ii) if the total adjustments to the Per Share Merger
Consideration pursuant to Section 1.02(a)(iii)
and (iv) of this Agreement would exceed $.30 per
share.
SECTION 8.02. WRITTEN NOTICE OF TERMINATION. In order to
terminate this Agreement pursuant to Section 8.01, the party so acting shall
give written notice of such termination to the other party. This Agreement shall
terminate on the date such notice is given.
SECTION 8.03. EFFECT OF TERMINATION. In the event of the
termination of this Agreement, the provisions of this Agreement shall become
void and have no effect; provided, however, that (a) the provisions set forth in
Sections 6.09, 6.10 and 6.11 of this Agreement shall survive such termination
and shall remain in full force and effect, and (b) a termination of this
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Agreement shall not affect the liability of any party for an uncured breach of
any term or condition of this Agreement.
SECTION 8.04. AMENDMENT. This Agreement may be amended at any
time before or after approval of this Agreement by the shareholders of CFKY, but
after such approval no amendment shall be made which materially and adversely
affects the rights of such shareholders without the further approval of such
shareholders. This Agreement may not be amended except by an instrument in
writing signed on behalf of each of the parties hereto.
SECTION 8.05. WAIVER. Any term, condition or provision of this
Agreement (other than the requirement for shareholder approval) may be waived in
writing at any time by action of the board of directors of the party which is,
or whose shareholders are, entitled to the benefits thereof.
ARTICLE NINE
MISCELLANEOUS
SECTION 9.01. NOTICES. All notices and other communications
hereunder shall be in writing and shall be deemed given if delivered personally
or mailed by registered or certified mail (return receipt requested) to the
parties at the following addresses (or at such other address for a party as
shall be specified by like notice):
If addressed to Camco or Advantage:
Xxxxx X. Xxxxxxxx
Chairman of the Board
Camco Financial Corporation
0000 Xxxxx Xxxxxxx
Xxxxxxxxx, Xxxx 00000-0000
with a copy to:
Xxxxx X. Xxxxxxxx, Esq. and
Xxxxx Xxxxxxxx Xxxxx, Esq.
Vorys, Xxxxx, Xxxxxxx and Xxxxx LLP
000 Xxxx Xxxxxx Xxxxxx
Xxxxxx Xxx, Xxxxx 0000
Xxxxxxxxxx, Xxxx 00000
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If addressed to CFKY or the Bank:
Xxxxxx X. Xxxxx
President and Chief Executive Officer
Columbia Financial of Kentucky, Inc.
0000 Xxxxx Xxxxxxx
Xx. Xxxxxxxx, XX 00000
with a copy to:
Xxxx X. Xxxxx, Esq. and
Xxxxxxx X. Xxxxxx, Esq.
Vorys, Xxxxx, Xxxxxxx and Xxxxx LLP
000 Xxxx Xxxxxx Xxxxxx
Xxxxxx Xxx, Xxxxx 0000
Xxxxxxxxxx, Xxxx 00000
SECTION 9.02. ENTIRE AGREEMENT. This Agreement (including the
exhibits, documents and instruments referred to herein or therein) (a)
constitutes the entire agreement of the parties and supersedes all other prior
agreements and understandings, including the Confidentiality Agreement dated
February 15, 2001, both written and oral, among the parties, or any of them,
with respect to the subject matter hereof; (b) is not intended to and shall not
confer any rights or remedies hereunder upon any person other than Camco, Merger
Sub, Advantage, CFKY and the Bank; (c) shall not be assigned by operation of law
or otherwise; and (d) shall be governed in all respects, including validity,
interpretation and effect, by the laws of the State of Ohio, except to the
extent that Delaware or federal law may be applicable.
SECTION 9.03. EXECUTION IN COUNTERPARTS. This Agreement may be
executed in two or more counterparts which together shall constitute a single
Agreement.
SECTION 9.04. HEADINGS. The headings of articles and sections
herein are for convenience of reference only, do not constitute a part of this
Agreement and shall not be deemed to limit or affect any of the provisions
hereof.
SECTION 9.05. NONSURVIVAL OF REPRESENTATIONS AND WARRANTIES.
No representation or warranty shall survive the Effective Time.
SECTION 9.06. LIABILITIES AND SPECIFIC PERFORMANCE. The
termination fee provided for in Section 6.11 of this Agreement shall be the
exclusive fee and remedy for a termination of this Agreement with respect to the
matters described in Section 6.11 and the consideration, execution or
consummation of an Acquisition Transaction. Other than with respect to such
specific remedies, each party to this Agreement recognizes that, if it fails to
perform, observe or discharge any of its obligations under this Agreement,
remedies at law may not provide adequate relief to the other party or parties.
Therefore, each party is hereby authorized to demand specific performance of
this Agreement and is entitled to temporary and
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permanent injunctive relief in a court of competent jurisdiction at any time
when any other party fails to comply with any of the provisions of this
Agreement applicable to it, in addition to any other remedy that may be
available in law or equity. To the extent permitted by applicable law, each
party hereby irrevocably waives any defense that it might have based on the
adequacy of a remedy at law that might be asserted as a bar to such remedy of
specific performance or injunctive relief.
[Signatures on next page]
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IN WITNESS WHEREOF, Camco, Merger Sub, Advantage, CFKY and the
Bank have caused this Agreement to be signed by their respective duly authorized
officers on the date first above written.
ATTEST: CAMCO FINANCIAL CORPORATION
/s/ Xxxxx Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxx
--------------------------- --------------------------------------------
Xxxxx Xxxxxxx Xxxxxxx X. Xxxxxx
Assistant Secretary President
ATTEST: CAMCO ACQUISITION CORP.
/s/ D. Xxxxxx Xxxx By: : /s/ Xxxxxxx X. Xxxxxx
--------------------------- --------------------------------------------
D. Xxxxxx Xxxx Xxxxxxx X. Xxxxxx
Secretary President
ATTEST: ADVANTAGE BANK
/s/ D. Xxxxxx Xxxx By: : /s/ Xxxxxxx X. Xxxxxx
--------------------------- --------------------------------------------
D. Xxxxxx Xxxx Xxxxxxx X. Xxxxxx
Assistant Secretary President
ATTEST: COLUMBIA FINANCIAL OF KENTUCKY, INC.
/s/ Xxxxx Xxxxxxxx By: /s/ Xxxxxx X. Xxxxx
--------------------------- --------------------------------------------
Xxxxx Xxxxxxxx Xxxxxx X. Xxxxx
Secretary President and Chief Executive Officer
ATTEST: COLUMBIA FEDERAL SAVINGS BANK
/s/ Xxxxx Xxxxxxxx By: /s/ Xxxxxx X. Xxxxx
--------------------------- --------------------------------------------
Xxxxx Xxxxxxxx Xxxxxx X. Xxxxx
Secretary President and Chief Executive Officer
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EXHIBIT A
---------
AGREEMENT OF MERGER
THIS AGREEMENT OF MERGER (this "Agreement") is entered into as of the
4th day of June, 2001, by and between Advantage Bank ("Advantage"), a savings
bank organized under Chapter 1161 of the Ohio Revised Code, and Columbia Federal
Savings Bank ("Columbia"), a federal savings bank organized under the laws of
the United States of America.
R E C I T A L S :
WHEREAS, Advantage is a wholly owned subsidiary of Camco Financial
Corporation ("Camco"), a Delaware corporation, and Columbia is a wholly owned
subsidiary of Columbia Financial of Kentucky, Inc. ("CFKY"), an Ohio
corporation;
WHEREAS, Camco, Advantage, Camco Acquisition Corp. ("Merger Sub"), CFKY
and Columbia have entered into an Agreement of Merger and Plan of Reorganization
dated June 4, 2001 (the "Merger Agreement"), which provides for the merger of
Merger Sub with and into CFKY and the subsequent merger of Columbia with and
into Advantage; and
WHEREAS, the boards of directors of each of the parties hereto have
approved this Agreement;
NOW, THEREFORE, in consideration of the mutual premises and mutual
agreements contained herein, the parties hereto have agreed as follows:
ARTICLE I
THE MERGER
Section 1.01. At the Effective Time (as defined in Article IV below),
Columbia shall merge with and into Advantage (the "Merger") pursuant to Ohio
Rev. Code xx.xx. 1161.76 and 1701.78, 12 U.S.C. ss. 1828(c), and the applicable
regulations of the Division of Financial Institutions of the Ohio Department of
Commerce (the "Division"), the Office of Thrift Supervision ("OTS"), and the
Federal Deposit Insurance Corporation ("FDIC"). Upon consummation of the Merger,
the separate corporate existence of Columbia shall cease and Advantage shall
continue as the surviving institution (the "Surviving Institution").
ARTICLE II
NAME OF SURVIVING INSTITUTION
Section 2.01 The name of the Surviving Institution shall be Advantage
Bank.
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ARTICLE III
CONVERSION OF SECURITIES
Section 3.01 Advantage Stock. The shares of common stock of Advantage
issued and outstanding immediately prior to the Effective Time shall be
unaffected by the Merger and shall constitute the only outstanding shares of
capital stock of the Surviving Institution at and after the Effective Time.
Section 3.02 Columbia Stock. At the Effective Time, by virtue of the
Merger and without any action on the part of Advantage or Columbia, all of the
shares of common stock of Columbia, without par value, that are issued and
outstanding immediately prior thereto shall thereupon be canceled.
ARTICLE IV
EFFECTIVE TIME
Section 4.01 The Merger shall become effective immediately following
and contingent upon the occurrence of the Closing (as defined in Article I of
the Merger Agreement) at the date and time specified in the certificate of
merger filed with the Ohio Secretary of State with respect to the Merger (the
"Effective Time"); provided, however, that such filing shall not occur and the
Merger shall not be effective until all of the following events have taken
place: (a) CFKY shall have been merged with and into Camco; (b) the sole
shareholders of Advantage and Columbia shall have adopted this Agreement; (c)
the Merger shall have been approved by the Division and the FDIC; (d) all
applicable regulatory waiting periods shall have expired; (e) a certificate of
merger with respect to the Merger shall have been filed with the Ohio Secretary
of State; and (f) notification pursuant to 12 C.F.R. ss. 563.22(b) has been
provided to the OTS.
ARTICLE V
ARTICLES OF INCORPORATION AND CONSTITUTION
OF SURVIVING INSTITUTION
Section 5.01 The articles of incorporation and constitution of
Advantage as in effect at the Effective Time shall be the articles of
incorporation and constitution of the Surviving Institution at and after the
Effective Time.
ARTICLE VI
EXECUTIVE OFFICERS OF SURVIVING INSTITUTION
Section 6.01 The executive officers of Advantage immediately before the
Effective Time shall serve in the same capacities as executive officers of the
Surviving Institution at and after the Effective Time.
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ARTICLE VII
EFFECTS OF MERGER
Section 7.01 At the Effective Time, Columbia shall merge with and into
Advantage, with Advantage as the Surviving Institution. The business of the
Surviving Institution shall be that of an Ohio savings bank, as provided for in
its articles of incorporation. All assets, rights, interests, privileges,
powers, franchises and property (real, personal and mixed) of Advantage and
Columbia shall be automatically transferred to and vested in the Surviving
Institution by virtue of the Merger without any deed or other document of
transfer.
Section 7.02. The Surviving Institution, without any order or action on
the part of any court or otherwise and without any documents of assumption or
assignment, shall hold and enjoy all of the assets, rights, privileges, powers,
properties, franchises and interests, including, without limitation,
appointments, powers, designations, nominations and all other rights, interests
and powers as agent or fiduciary, in the same manner and to the same extent as
such rights, interests and powers were held or enjoyed by Advantage and
Columbia, respectively.
Section 7.03. The Surviving Institution shall be responsible for all of
the liabilities, restrictions and duties of every kind and description of both
Advantage and Columbia, immediately prior to the Merger, including, without
limitation, liabilities for all savings accounts, deposits, debts, obligations
and contracts of Advantage and Columbia, respectively, matured or unmatured,
whether accrued, absolute, contingent and otherwise and whether or not reflected
or reserved against on balance sheets, books of accounts or records of either
Advantage or Columbia. Deposit accounts shall be deemed issued in the name of
the Surviving Institution in accordance with applicable regulations. All rights
of creditors and other obligees and all liens on property of either Advantage or
Columbia shall be preserved, shall be assumed by the Surviving Institution and
shall not be released or impaired.
ARTICLE VIII
OFFICES OF SURVIVING INSTITUTION
Section 8.01 At the Effective Time, the offices of the Surviving
Institution shall consist of the following:
Home Office: 000 Xxxxxxxx Xxxxxx
X.X. Xxx 000
Xxxxxxxxx, Xxxx 00000
Branches: 000 X. 0xx Xxxxxx 000 Xxxx Xxxxxx
Xxxxxxxxxxxx, Xxxx Xxxxxxxx, Xxxx
000 X. 00xx Xxxxxx 0000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx Cincinnati, Ohio
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000 X. Xxxxxx Xxxxxx 0000 Xx. Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx Cincinnati, Ohio
000 X. Xxxxx Xxxxxx 0000 Xxxx Xxxxxxxx Xxx
Xxxxxxxxxx Xxxxx Xxxxx, Xxxx Cincinnati, Ohio
00 Xxxx Xxxxxx Xxxxxx 0000 Xxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxx Ashland, Kentucky
000 Xxxxx Xxxxx Xxxxxx 0000 X.X. 00 Xxxx
Xxxxxxxxxx, Xxxx Summit, Kentucky
Xxxxxxx Xxxxx Xxxxxx 000 Xxxxxxx Xxxx
000 Xxxx Xxxxxxxxx Xxxxxx Xxxxxxx, Xxxxxxxx
Powell, Ohio
0000 Xxxxxxxxxx Xxx. 0000 Xxxxx Xxxxxxx
Xxxxxxxxxx Xxxxx Xxxxx, Xxxx Ft. Xxxxxxxx, Kentucky
0 X. Xxxx Xxxxxx Xxxx Xxxxxx and Xxx Street
Germantown, Ohio Covington, Kentucky
000 Xxxx Xxxx Xxxxxx 000 Xxxxxxxxxx Xxxx
Xxx Xxxxxxx, Xxxx Crescent Springs, Kentucky
000 Xxxxx Xxxxxx 0000 Xxxxx Xxxxxxx
Xxxxxxxx, Xxxx Erlanger, Kentucky
0000 Xxxxxxxxxx Xxxxxxxxx 0000 Xxxxx Xxxxxxx
Xxxxxx, Xxxx Florence, Kentucky
000 Xxxxxxx Xxxxxxx Xxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxx Xxxxxxxx
ARTICLE IX
LIQUIDATION ACCOUNT
Section 9.01 At the Effective Time, the Surviving Institution shall
assume Columbia's liquidation account established upon Columbia's conversion to
the stock form of ownership.
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ARTICLE X
OTHER TERMS
Section 10.01 All terms used in this Agreement shall, unless defined
herein, have the meanings set forth in the Merger Agreement.
Section 10.02 Subject to applicable law, at any time prior to the
consummation of the Merger, this Agreement may be amended by an instrument in
writing signed on behalf of each of the parties hereto.
Section 10.03 This Agreement shall terminate and become null and void,
and the transactions contemplated herein shall thereupon be abandoned, upon any
occurrence of a termination of the Merger Agreement pursuant to Article Eight
thereof.
Section 10.04. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of such
counterparts shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the date first above written.
ATTEST: ADVANTAGE BANK
By:
------------------------------- -------------------------------------
D. Xxxxxx Xxxx Xxxxxxx X. Xxxxxx
Assistant Secretary President and Chief Executive Officer
ATTEST: COLUMBIA FEDERAL SAVINGS BANK
By:
------------------------------- -------------------------------------
------------------------------------- Xxxxxx X. Xxxxx
Secretary President and Chief Executive Officer
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EXHIBIT B
SHAREHOLDER AGREEMENT
The undersigned (the "Shareholder"), who is a shareholder of Columbia
Financial of Kentucky, Inc. ("Company"), has executed this Shareholder Agreement
to be effective as of the 4th day of June, 2001.
RECITALS
A. The Shareholder owns or has the power to vote, other than in a
fiduciary capacity, _______ common shares, without par value, of the Company
(together with all other shares of the Company which the Shareholder
subsequently acquires or obtains the power to vote, other than in a fiduciary
capacity, the "Shares").
B. The Company has entered into an Agreement of Merger and Plan
Reorganization with Camco Financial Corporation, a Delaware corporation
("Camco"), of even date herewith (the "Merger Agreement").
C. Under the terms of the Merger Agreement, the Company has agreed,
subject to certain terms and conditions, to call a meeting of its shareholders
for the purpose of voting upon the approval of the Merger (together with any
adjournments thereof, the "Shareholders' Meeting").
D. The Company and Camco have made it a condition to their entering
into the Merger Agreement that certain shareholders of the Company, including
the Shareholder, shall have agreed to vote their shares of the Company in favor
of the Merger.
AGREEMENT
Accordingly, the parties hereto agree as follows:
1. AGREEMENT TO VOTE. The Shareholder agrees, subject to Section 2,
below, to vote the Shares as follows:
(a) in favor of the adoption of the Merger Agreement at the
Shareholders' Meeting;
(b) against the approval of any proposal relating to a competing
merger or business combination involving an acquisition of the Company or the
purchase of all or a
54
substantial portion of the assets of the Company by any person or entity other
than Camco or another affiliate of Camco; and
(c) against any other transaction which is inconsistent with the
obligation of the Company to consummate the Merger in accordance with the Merger
Agreement.
2. LIMITATION ON VOTING POWER. It is expressly understood and
acknowledged that nothing contained herein is intended to restrict the
Shareholder from voting on any matter, or otherwise from acting, in the
Shareholder's capacity as a director of the Company with respect to any matter,
including but not limited to, the management or operation of the Company.
3. TERMINATION. This Agreement shall terminate on the earlier of (a)
the first anniversary of this Agreement, (b) the date on which the Merger
Agreement is terminated in accordance with Article Eight of the Merger
Agreement, (c) the date on which the Merger is consummated, or (d) the death of
the Shareholder.
4. REPRESENTATIONS, WARRANTIES, AND ADDITIONAL COVENANTS OF THE
SHAREHOLDER. The Shareholder hereby represents and warrants to Camco that (a)
the Shareholder has the capacity and all necessary power and authority to vote
the Shares, and (b) this Agreement constitutes a legal, valid, and binding
obligation of the Shareholder, enforceable in accordance with its terms, except
as may be limited by bankruptcy, insolvency, or similar laws affecting
enforcement of creditors rights generally. The Shareholder further agrees that,
during the term of this Agreement, the Shareholder will not, without the prior
written consent of Camco, which consent shall not be unreasonably withheld,
sell, pledge, or otherwise voluntarily dispose of any of the Shares which are
owned by the Shareholder or take any other voluntary action which would have the
effect of removing the Shareholder's power to vote the Shares or which would be
inconsistent with this Agreement. Notwithstanding the foregoing, the Shareholder
may transfer all or a portion of the Shares to an immediate family member, but
only if the transferee executes an identical Shareholder Agreement .
5. SPECIFIC PERFORMANCE. The undersigned hereby acknowledges that
damages would be an inadequate remedy for any breach of the provisions of this
Agreement and agrees that the obligations of the Shareholder shall be
specifically enforceable and that Camco shall be entitled to injunctive or other
equitable relief upon such a breach by the Shareholder. The Shareholder further
agrees to waive any bond in connection with the obtaining of any such injunctive
or equitable relief. This provision is without prejudice to any other rights
that Camco may have against the Shareholder for any failure to perform his
obligations under this Agreement.
6. GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with the laws of the State of Ohio without regard to any of its
conflict of laws principles.
7. CAPITALIZED TERMS. Capitalized terms used herein without definition
shall have the meanings attributed to such terms in the Merger Agreement.
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IN WITNESS WHEREOF, the undersigned has executed this Shareholder
Agreement as of the day and year first above written.
SHAREHOLDER:
-----------------------------------------------
Print Name:
------------------------------------
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