EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger is dated as of February 1, 2007 (the
"Agreement"), by and between FSB Bank, a Michigan chartered commercial bank
("FSB"), and Xxxxxxxx Bank and Trust, a Michigan chartered commercial bank
("IBT").
WHEREAS, the Board of Directors of each of FSB and IBT (i) has determined
that this Agreement and the business combination and related transactions
contemplated hereby are in the best interests of their respective banks and
their sole shareholder and (ii) has determined that this Agreement and the
transactions contemplated hereby are consistent with and in furtherance of their
respective business strategies, and (iii) has approved this Agreement at
meetings of each of such Boards of Directors;
WHEREAS, in accordance with the terms of this Agreement, FSB will merge
with IBT with IBT as the surviving entity (the "Merger"). Concurrently, the
shares of FSB stock held by IBT Bancorp, Inc., the parent corporation of FSB,
shall be cancelled;
WHEREAS, the parties currently intend that the Merger shall qualify as a
reorganization within the meaning of Section 368(a) of the Internal Revenue Code
of 1986, as amended (the "Code"); and
WHEREAS, simultaneously with the execution and delivery of this Agreement,
IB&T Mortgage Company, a Michigan corporation and a wholly owned subsidiary of
IBT ("IBT Mortgage") and FSB Mortgage Company, a Michigan corporation and a
wholly owned subsidiary of FSB ("FSB Mortgage"), will enter into a Plan of
Merger (the "Subsidiary Merger Agreement") providing for the merger (the
"Subsidiary Merger") of FSB Mortgage with and into IBT Mortgage, and it is
intended that the Subsidiary Merger be consummated immediately following the
consummation of the Merger; and
WHEREAS, the parties desire to make certain representations, warranties and
agreements in connection with the business transactions described in this
Agreement and to prescribe certain conditions thereto.
NOW, THEREFORE, in consideration of the mutual covenants, representations,
warranties and agreements herein contained, and of other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
ARTICLE I - CERTAIN DEFINITIONS
1.1. Certain Definitions. As used in this Agreement, the following terms
have the following meanings (unless the context otherwise requires, references
to articles and sections refer to articles and sections of this Agreement).
"Affiliates" means any Person who directly, or indirectly, through one or
more intermediaries, controls, or is controlled by, or is under common control
with, such Person and, without limiting the generality of the foregoing,
includes any executive officer or director of such Person and any Affiliates of
such executive officer or director.
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"Agreement" means this agreement, and any amendment hereto.
"Bank Regulator" shall mean any Federal or state banking regulatory agency
with supervisory authority over FSB, IBT, or IBT Bancorp, Inc.
"Bureau" shall mean the Office of Financial and Insurance Services of the
State of Michigan.
"Closing" shall have the meaning set forth in Section 2.2.
"Closing Date" shall have the meaning set forth in Section 2.2.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Effective Time" shall mean the date and time specified pursuant to Section
2.2 hereof as the effective time of the Merger.
"FDIC" shall mean the Federal Deposit Insurance Corporation or any
successor thereto.
"FRB" shall mean the Board of Governors of the Federal Reserve System or
any successor thereto.
"FSB Common Stock" shall mean the common stock, par value $5.00 per share,
of FSB.
"Governmental Entity" shall mean any Federal or state court, administrative
agency or commission or other governmental authority or instrumentality.
"Merger" shall mean the merger of FSB with and into IBT pursuant to the
terms hereof.
"Michigan Banking Law" shall mean the Michigan Banking Code of 1999, as
amended, and the rules and regulations promulgated thereunder, as amended, as
administered by the Bureau.
"Person" shall mean any individual, corporation, limited liability company,
partnership, joint venture, association, trust "group" or entity.
"Regulatory Approvals" means the approval of any Bank Regulator that is
necessary in connection with the consummation of the Merger and the related
transactions contemplated by this Agreement.
"Surviving Corporation" shall have the meaning set forth in Section 2.1
hereof.
Other terms used herein are defined in the preamble and elsewhere in this
Agreement.
ARTICLE II - THE MERGER
2.1. Merger. Subject to the terms and conditions of this Agreement, at the
Effective Time, FSB shall merge with IBT, with IBT as the resulting or surviving
banking corporation (the
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"Surviving Corporation"). As part of the Merger, each share of FSB Common Stock
shall be cancelled pursuant to the terms of Article III hereof.
2.2. Closing; Effective Time. Subject to the satisfaction or waiver of all
conditions to closing contained in Article VII hereof, the Closing shall occur
no later than five (5) business days following the latest to occur of (i) the
receipt of all required Regulatory Approvals, and the expiration of any
applicable waiting periods, (ii) the approval of the Merger by the sole
shareholder of FSB and IBT, or (iii) at such other date or time upon which IBT
and FSB mutually agree (the "Closing"). The Merger shall be effected by the
filing of a certificate of merger with the Bureau on the day of the Closing (the
"Closing Date"), in accordance with Michigan Banking Law. The "Effective Time"
means the date and time upon which the certificate of merger is filed with the
Bureau, or as otherwise stated in the certificate of merger, in accordance with
Michigan Banking Law.
2.3. Articles of Incorporation and Bylaws; Name. The Articles of
Incorporation and Bylaws of IBT as in effect immediately prior to the Effective
Time shall be the Articles of Incorporation and Bylaws of the Surviving
Corporation, until thereafter amended as provided therein and by applicable law.
The name of the Surviving Corporation shall be Xxxxxxxx Bank and Trust.
2.4. Directors and Officers of Surviving Corporation. The board directors
of the Surviving Corporation shall consist of the incumbent directors of IBT
immediately preceding the Effective Time, each to hold office in accordance with
the Articles of Incorporation and Bylaws of the Surviving Corporation. At the
Effective Time, IBT shall confirm by resolution of its Board of Directors the
establishment of regional boards to preserve the institutional knowledge of the
former Farmers State Bank of Breckenridge and the former Xxxxxxx State Savings
Bank and to provide advice to the IBT Board of Directors about business and
operations, community and customer needs in the market area, regional economic
conditions and such other advisory responsibilities as determined by the IBT
Board of Directors. The members of the regional boards shall consist of those
individuals noted on Exhibit A. Regional board member compensation shall be the
same as that provided prior to the Effective Time provided, however, that IBT
may conduct periodic reviews of director compensation to assess reasonableness
and consistency. The officers of the Surviving Corporation at the Effective Time
shall be as set forth in Exhibit B.
2.5. Effects of the Merger. At and after the Effective Time, the Merger
shall have the effects as set forth in the Michigan Banking Law, including but
not limited to the Surviving Corporation assuming all of the liabilities,
duties, obligations and rights of FSB under the Amended and Restated Agreement
and Plan of Merger dated May 2, 2006 by and between Farmers State Bank of
Breckenridge, The Xxxxxxx State Savings Bank and IBT Bancorp, Inc.
2.6. Tax Consequences. It is intended that the Merger shall constitute a
reorganization within the meaning of Section 368(a) of the Code and that this
Agreement shall constitute a "plan of reorganization" as that term is used in
Sections 354 and 361 of the Code. From and after the date of this Agreement and
until the Closing, each party hereto shall use its reasonable best efforts to
cause the Merger to qualify, and will not knowingly take any action, cause any
action to be taken, fail to take any action or cause any action to fail to be
taken which action or
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failure to act could prevent the Merger from qualifying as a reorganization
under Section 368(a) of the Code other than is contemplated by this Agreement.
Following the Closing, neither IBT nor FSB nor any of their Affiliates shall
knowingly take any action, cause any action to be taken, fail to take any action
or cause any action to fail to be taken, which action or failure to act could
cause the Merger to fail to qualify as a reorganization under Section 368(a) of
the Code.
2.7. Possible Alternative Structures. Notwithstanding anything to the
contrary contained in this Agreement and subject to the satisfaction of the
conditions set forth in Article VII, prior to the Effective Time, IBT shall,
with the consent of FSB, which will not be unreasonably withheld, be entitled to
revise the structure of the Merger described in Section 2.1 hereof provided that
(i) there are no adverse Federal or state income tax consequences to FSB, IBT or
IBT Bancorp, Inc., as a result of the modification; and (ii) such modification
will not delay materially or jeopardize receipt of any required Regulatory
Approvals or other consents and approvals relating to the consummation of the
Merger. The parties hereto agree to appropriately amend this Agreement and any
related documents in order to reflect any such revised structure.
ARTICLE III - IBT AND FSB SHARES
3.1. At the Effective Time, by virtue of the Merger and without any action
on the part of IBT, FSB or the holder of the shares of FSB common stock or IBT
common stock, the Merger shall be effected in accordance with the following
terms:
(a) Each share of IBT common stock that is issued and outstanding
immediately prior to the Effective Time shall remain issued and outstanding
following the Effective Time and shall be unchanged by the Merger.
(b) All shares of FSB common stock that is issued and outstanding
immediately prior to the Effective Time, shall cease to exist, and the
certificates for such shares shall be canceled as promptly as practicable
thereafter, and no payment or distribution shall be made in consideration
therefor.
ARTICLE IV - REPRESENTATIONS AND WARRANTIES OF FSB
4.1. Representations and Warranties of FSB. FSB represents and warrants to
IBT that the statements contained in this Article IV are correct as of the date
of this Agreement, except as to any representation or warranty which
specifically relates to an earlier date.
(a) Organization, Standing and Power. FSB is a Michigan chartered
commercial bank duly organized, validly existing and in good standing under the
laws of the State of Michigan. FSB has all requisite power and authority to own,
lease and operate its properties and to carry on its business as now being
conducted. The deposits of FSB are insured by the FDIC to the fullest extent
permitted by law, and all premiums and assessments required to be paid in
connection therewith have been paid when due.
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(b) Capital Structure.
(i) The authorized capital stock of FSB consists of 160,000
shares of FSB Common Stock, of which 160,000 shares are outstanding, validly
issued, fully paid and nonassessable (except for assessments by the Bureau
pursuant to Section 3807 of the Michigan Banking Code of 1999) and free of
preemptive rights.
(ii) IBT Bancorp, Inc. owns all the outstanding shares of the
capital stock of FSB.
(c) Authority.
(i) FSB has full corporate power and authority to execute and
deliver this Agreement and, subject to the receipt of the required Regulatory
Approvals, and the approval of this Agreement by FSB's sole shareholder, to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement by FSB and the completion by FSB of the transactions contemplated
hereby, up to and including the Merger, have been duly and validly approved by
the Board of Directors of FSB. This Agreement has been duly and validly executed
and delivered by FSB, and subject to approval by the sole shareholder of FSB and
receipt of the Regulatory Approvals, constitutes the valid and binding
obligation of FSB, enforceable against FSB in accordance with its terms, subject
to applicable bankruptcy, insolvency and similar laws affecting creditors'
rights generally, and subject, as to enforceability, to general principles of
equity.
(ii) (A) The execution and delivery of this Agreement by FSB, (B)
subject to receipt of Regulatory Approvals, and FSB's and IBT's compliance with
any conditions contained therein, and subject to the receipt of the approval of
the sole shareholder of FSB and IBT, the consummation of the transactions
contemplated hereby, and (C) compliance by FSB with any of the terms or
provisions hereof will not (i) conflict with or result in a breach of any
provision of the Articles of Incorporation or Bylaws of FSB; (ii) violate any
statute, code, ordinance, rule, regulation, judgment, order, writ, decree or
injunction applicable to FSB or any of its properties or assets; or (iii)
violate, conflict with, result in a breach of any provisions of, constitute a
default (or an event which, with notice or lapse of time, or both, would
constitute a default), under, result in the termination of, accelerate the
performance required by, or result in a right of termination or acceleration or
the creation of any lien, security interest, charge or other encumbrance upon
any of the properties or assets of FSB under any of the terms, conditions or
provisions of any note, bond, mortgage, indenture, deed of trust, license,
lease, agreement or other investment or obligation to which FSB is a party, or
by which it or any of its properties or assets may be bound or affected.
ARTICLE V - REPRESENTATIONS AND WARRANTIES OF IBT
5.1. Representations and Warranties of IBT. IBT represents and warrants to
FSB that the statements contained in this Article V are correct as of the date
of this Agreement, except as to any representation or warranty which
specifically relates to an earlier date.
(a) Organization, Standing and Power. IBT is a Michigan chartered
commercial bank duly organized, validly existing and in good standing under the
laws of the
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State of Michigan. IBT has all requisite power and authority to own, lease and
operate its properties and to carry on its business as now being conducted. The
deposits of IBT are insured by the FDIC to the fullest extent permitted by law,
and all premiums and assessments required to be paid in connection therewith
have been paid when due.
(b) Capital Structure.
(i) The authorized capital stock of IBT consists of 567,614
shares of IBT common stock, of which 567,614 shares are outstanding, validly
issued, fully paid and nonassessable (except for assessments by the Bureau
pursuant to Section 3807 of the Michigan Banking Code of 1999) and free of
preemptive rights.
(ii) IBT Bancorp, Inc. owns all the outstanding shares of the
capital stock of IBT.
(c) Authority.
(i) IBT has full corporate power and authority to execute and
deliver this Agreement and, subject to receipt of the required Regulatory
Approvals, to consummate the transactions contemplated hereby. The execution and
delivery of this Agreement by IBT and the completion by IBT of the transactions
contemplated hereby, up to and including the Merger, have been duly and validly
approved by the Board of Directors of IBT. This Agreement has been duly and
validly executed and delivered by IBT, and subject to approval by the sole
shareholder of IBT and receipt of the Regulatory Approvals, constitutes the
valid and binding obligations of IBT, enforceable against IBT in accordance with
its terms, subject to applicable bankruptcy, insolvency and similar laws
affecting creditors' rights generally, and subject, as to enforceability, to
general principles of equity.
(ii) (A) The execution and delivery of this Agreement by IBT, (B)
subject to receipt of Regulatory Approvals, and FSB's and IBT's compliance with
any conditions contained therein, and subject to the receipt of the approval of
the sole shareholder of IBT and FSB, the consummation of the transactions
contemplated hereby, and (C) compliance by IBT with any of the terms or
provisions hereof will not (i) conflict with or result in a breach of any
provision of the Articles of Incorporation or Bylaws of IBT; (ii) violate any
statute, code, ordinance, rule, regulation, judgment, order, writ, decree or
injunction applicable to IBT or any of its properties or assets; or (iii)
violate, conflict with, result in a breach of any provisions of, constitute a
default (or an event which, with notice or lapse of time, or both, would
constitute a default), under, result in the termination of, accelerate the
performance required by, or result in a right of termination or acceleration or
the creation of any lien, security interest, charge or other encumbrance upon
any of the properties or assets of IBT under any of the terms, conditions or
provisions of any note, bond, mortgage, indenture, deed of trust, license,
lease, agreement or other investment or obligation to which it is a party, or by
which it or any of its properties or assets may be bound or affected.
ARTICLE VI - REGULATORY AND OTHER MATTERS
6.1. Regulatory Approvals. Each of IBT and FSB will cooperate with the
other and use all reasonable efforts to promptly prepare and, within 30 days
after the date hereof or as soon
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thereafter as practicable, file all necessary documentation to obtain all
necessary permits, consents, waivers, approvals and authorizations of the FRB,
FDIC and the Bureau and any other third parties and governmental bodies
necessary to consummate the transactions contemplated by this Agreement. IBT and
FSB shall furnish each other with all information as may be necessary or
advisable in connection with any application, petition or other statement made
by or on behalf of IBT or FSB to any Bank Regulator or governmental body in
connection with the Merger and the other transactions contemplated by this
Agreement. Each party acknowledges that time is of the essence in connection
with the preparation and filing of the documentation referred to above.
6.2. Post-Closing Operations. At and after the Closing Date, IBT and FSB
agree that:
(a) Surviving Corporation shall be a state of Michigan chartered
commercial bank and a member of the Federal Reserve System.
(b) All banking offices of FSB will remain open.
(c) There will be no layoffs at FSB as a result of the Merger.
6.3 Execution and Authorization of Subsidiary Merger Agreement. On the date
of this Agreement, (a) IBT shall have (i) caused the Board of Directors of IBT
Mortgage to approve the Subsidiary Merger Agreement, (ii) caused IBT Mortgage to
execute and deliver the Subsidiary Merger Agreement, and (iii) approved the
Subsidiary Merger Agreement as the sole shareholder of IBT Mortgage, and (b) FSB
shall have (i) caused the Board of Directors of FSB Mortgage to approve the
Subsidiary Merger Agreement, (ii) caused FSB Mortgage to execute and deliver the
Subsidiary Merger Agreement, and (iii) approved the Subsidiary Merger Agreement
as the sole shareholder of FSB Mortgage.
ARTICLE VII - CLOSING CONDITIONS
7.1. Conditions to Each Party's Obligations Under This Agreement. The
respective obligations of each party under this Agreement shall be subject to
the fulfillment at or prior to the Closing Date of the following conditions,
none of which may be waived:
(a) Shareholder Approval. This Agreement and the transactions
contemplated hereby shall have been approved by the sole shareholder of FSB and
IBT.
(b) Injunctions. None of the parties hereto shall be subject to any
order, decree or injunction of a court or agency of competent jurisdiction, and
no statute, rule or regulation shall have been enacted, entered, promulgated,
interpreted, applied or enforced by any Governmental Entity or Bank Regulator,
that enjoins or prohibits the consummation of the transactions contemplated by
this Agreement.
(c) Regulatory Approvals. All required Regulatory Approvals shall have
been obtained and shall remain in full force and effect and all waiting periods
relating thereto shall have expired.
(d) Federal Tax Opinion. FSB and IBT shall have received an opinion of
Foster, Swift, Xxxxxxx & Xxxxx, X.X. counsel to IBT Bancorp, Inc. ("Counsel"),
in form and
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substance reasonably satisfactory to both FSB and IBT, substantially to the
effect that, on the basis of facts, representations and assumptions set forth in
such opinion which are consistent with the state of facts existing at the
Effective Time: (i) the Merger will be treated as a reorganization within the
meaning of Section 368(a) of the Code; and (ii) the Merger will not have an
adverse effect on the tax-free nature of the merger of The Xxxxxxx State Savings
Bank with and into Farmers State Bank of Breckenridge that was effective October
3, 2006. In rendering such opinion, Counsel may require and rely upon
representations and covenants, including those contained in certificates of
officers of FSB, IBT, and others reasonably satisfactory to such Counsel.
7.2. Conditions to the Obligations of IBT under this Agreement. The
obligations of IBT under this Agreement shall be further subject to the
satisfaction of the conditions set forth in Sections 7.2(a) through 7.2(c) at or
prior to the Closing Date, which shall be waiveable by IBT:
(a) Representations and Warranties. Each of the representations and
warranties of FSB set forth in this Agreement shall be true and correct as of
the date of this Agreement and upon the Closing Date with the same effect as
though all such representations and warranties had been made at the Closing Date
(except to the extent such representations and warranties speak as of an earlier
date).
(b) Agreements and Covenants. FSB shall have performed in all material
respects all obligations and complied in all material respects with all
agreements or covenants to be performed or complied with by it at or prior to
the Effective Time.
(c) Permits, Authorizations, Etc. FSB shall have obtained any and all
material permits, authorizations, consents, waivers, clearances or approvals
required to be obtained by it for the lawful consummation of the Merger.
7.3. Conditions to the Obligations of FSB under this Agreement. The
obligations of FSB under this Agreement shall be further subject to the
satisfaction of the conditions set forth in Sections 7.3(a) through 7.3(c) at or
prior to the Closing Date, which shall be waiveable by FSB:
(a) Representations and Warranties. Each of the representations and
warranties of IBT set forth in this Agreement shall be true and correct as of
the date of this Agreement and upon the Closing Date with the same effect as
though all such representations and warranties had been made at the Closing Date
(except to the extent such representations and warranties speak as of an earlier
date).
(b) Agreements and Covenants. IBT shall have performed in all material
respects all obligations and complied in all material respects with all
agreements or covenants to be performed or complied with by it at or prior to
the Effective Time.
(c) Permits, Authorizations, Etc. IBT shall have obtained any and all
material permits, authorizations, consents, waivers, clearances or approvals
required to be obtained by it for the lawful consummation of the Merger.
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ARTICLE VIII - THE CLOSING
Subject to the provisions of Articles VII and IX hereof, the Closing of the
transactions contemplated hereby shall take place at the offices of IBT Bancorp,
Inc., 000 Xxxx Xxxxxxxx, Xx. Xxxxxxxx, Xxxxxxxx, at 10 a.m., or at such other
place or time upon which IBT and FSB mutually agree.
ARTICLE IX - TERMINATION, AMENDMENT AND WAIVER
9.1. Termination. This Agreement may be terminated at any time prior to the
Closing Date, whether before or after approval of the Merger by the sole
shareholder of FSB and IBT:
(a) At any time by the mutual written agreement of IBT and FSB;
(b) By IBT or FSB, if (i) final action has been taken by a Bank
Regulator whose approval is required in connection with this Agreement and the
transactions contemplated hereby, which final action (x) has become unappealable
and (y) does not approve this Agreement or the transactions contemplated hereby,
(ii) any Bank Regulator whose approval or non-objection is required in
connection with this Agreement and the transactions contemplated hereby has
stated in writing that it will not issue the required approval or nonobjection,
or (iii) any court of competent jurisdiction or other governmental authority
shall have issued an order, decree, ruling or taken any other action
restraining, enjoining or otherwise prohibiting the Merger and such order,
decree, ruling or other action shall have become final and unappealable; or
(c) By the Board of Directors of either party (provided, that the
terminating party is not then in material breach of any representation,
warranty, covenant or other agreement contained herein) in the event that any of
the conditions precedent to the obligations of such party to consummate the
Merger cannot be satisfied or fulfilled.
9.2. Effect of Termination. In the event of termination of this Agreement
pursuant to any provision of Section 9.1, this Agreement shall forthwith become
void and have no further force, except that the provisions of Sections 9.2,
10.4, 10.7, 10.8, and any other Section which, by its terms, relates to
post-termination rights or obligations, shall survive such termination of this
Agreement and remain in full force and effect.
9.3. Amendment, Extension and Waiver. Subject to applicable law, at any
time prior to the Effective Time (whether before or after approval thereof by
the sole shareholder of FSB and IBT), the parties hereto by action of their
respective Boards of Directors, may (a) amend this Agreement, (b) extend the
time for the performance of any of the obligations or other acts of any other
party hereto, (c) waive any inaccuracies in the representations and warranties
contained herein or in any document delivered pursuant hereto, or (d) waive
compliance with any of the agreements or conditions contained herein. This
Agreement may not be amended except by an instrument in writing signed on behalf
of each of the parties hereto. Any agreement on the part of a party hereto to
any extension or waiver shall be valid only if set forth in an instrument in
writing signed on behalf of such party, but such waiver or failure to insist on
strict compliance with such obligation, covenant, agreement or condition shall
not operate as a waiver of, or estoppel with respect to, any subsequent or other
failure. Any termination of this Agreement
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pursuant to Article IX may only be effected upon a vote of a majority of the
entire Board of Directors of the terminating party.
ARTICLE X - MISCELLANEOUS
10.1. Survival. All representations, warranties and covenants in this
Agreement or in any instrument delivered pursuant hereto shall expire and be
terminated and extinguished at the Effective Time, except for those covenants
and agreements contained herein which by their terms apply in whole or in part
after the Effective Time.
10.2. Notices. All notices or other communications hereunder shall be in
writing and shall be deemed given if delivered by receipted hand delivery or
mailed by prepaid registered or certified mail (return receipt requested) or by
recognized overnight courier addressed as follows:
If to FSB, to: Xxxxxx X. Xxxxxx
Chief Executive Officer and President
FSB Bank
000 Xxxx Xxxxxxxx
Xx. Xxxxxxxx, XX 00000
If to IBT, to: Xxxxxxx X. Xxxx
Chief Executive Officer and President
Xxxxxxxx Bank and Trust
000 Xxxx Xxxxxxxx
Xx. Xxxxxxxx, XX 00000
or such other address as shall be furnished in writing by any party, and any
such notice or communication shall be deemed to have been given: (a) as of the
date delivered by hand; (b) three (3) business days after being delivered to the
U.S. mail, postage prepaid; or (c) one (1) business day after being delivered to
the overnight courier.
10.3. Parties in Interest. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors and
assigns; provided, however, that neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any party hereto without
the prior written consent of the other party, and that nothing in this Agreement
is intended to confer upon any other person any rights or remedies under or by
reason of this Agreement.
10.4. Complete Agreement. This Agreement, including the Exhibits hereto and
the documents and other writings referred to herein or therein or delivered
pursuant hereto, contains the entire agreement and understanding of the parties
with respect to its subject matter. There are no restrictions, agreements,
promises, warranties, covenants or undertakings between the parties other than
those expressly set forth herein or therein. This Agreement supersedes all prior
agreements and understandings between the parties, both written and oral, with
respect to its subject matter.
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10.5. Counterparts. This Agreement may be executed in one or more
counterparts all of which shall be considered one and the same agreement and
each of which shall be deemed an original.
10.6. Severability. In the event that any one or more provisions of this
Agreement shall for any reason be held invalid, illegal or unenforceable in any
respect, by any court of competent jurisdiction, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Agreement and the
parties shall use their reasonable efforts to substitute a valid, legal and
enforceable provision which, insofar as practical, implements the purposes and
intents of this Agreement.
10.7. Governing Law. This Agreement shall be governed by the laws of
Michigan, without giving effect to its principles of conflicts of laws.
10.8. Interpretation. When a reference is made in this Agreement to
sections or exhibits, such reference shall be to a section of or exhibit to this
Agreement unless otherwise indicated. The recitals hereto constitute an integral
part of this Agreement. References to sections include subsections, which are
part of the related section. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Whenever the words "include", "includes" or
"including" are used in this Agreement, they shall be deemed to be followed by
the words "without limitation".
10.9. Specific Performance. The parties hereto agree that irreparable
damage would occur in the event that the provisions contained in this Agreement
were not performed in accordance with its specific terms or were otherwise
breached. It is accordingly agreed that the parties shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions thereof in any court of the United States
or any state having jurisdiction, this being in addition to any other remedy to
which they are entitled at law or in equity.
IN WITNESS WHEREOF, FSB and IBT have caused this Agreement to be executed
by their duly authorized officers as of the date first set forth above.
FSB Bank
Dated February 1, 2007 By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Xxxxxx X. Xxxxxx
President and CEO
Xxxxxxxx Bank and Trust
Dated February 1, 2007 By: /s/ Xxxxxxx X. Xxxx
------------------------------------
Xxxxxxx X. Xxxx
President and CEO
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EXHIBIT A
REGIONAL BOARDS
XXXXXXXX BANK & TRUST
Xxxxxx Xxxxxxxxxx, Chair
Xxxxxxx X. Xxxx, President & CEO
Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxx
Xxxxx X. Xxxxxxx
Xxxxx X. Hole
G. Xxxxxxx Xxxxxxxx
Xxxxxx X. Xxxxxxxxxx
Xxxxx X. Xxxxxx
Xxxxxx X. Xxxxx
Xxxxxxx X. Xxxxxxxxx
XXXXXXXX BANK AND TRUST - MECOSTA DIVISION
Xxxxx Crew
Xxxxxx XxXxxxxxxxx
Xxxxxxx X. Xxxx
Xxxxxx X. Xxxxxxx
FARMERS DIVISION
Xxxx X. Xxxxxx, Chair
Xxxxxxx X. Xxxxxx, President & CEO
Xxxxxx X. Xxxxxx
Xxxxxx Xxxxx
Xxxxx Xxxx
Xxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxx
Xxxxxxx Xxxxxx
XXXXXXX DIVISION
Xxxxxxx X. Xxxxxx, Chair
Xxxxxx X. Xxxxxxxxx, President & CEO
Xxxxxx X. Xxxxxx
Xxxx X. Xxxxxxx
Xxxxxx XxXxxxx
W. Xxxxxxx XxXxxxx
Xxxxx X. Xxxxxxxxx
12
EXHIBIT B
OFFICERS
XXXXXXXX BANK & TRUST
Xxxxxx X. Xxxx, Senior Vice President
Xxxxx X. Xxxxx, Senior Vice President
Xxxxx X. Xxxxxxxxx, Vice President
Xxxxxxx X. Xxxxx, Vice President
Xxxxx X. Xxxxxxxxx, Vice President
Xxxxxx X. Xxxxxx, Vice President
Xxxxxxx X. Xxxxx, Vice President
Xxxxx X. Xxxxxxxxxx, Vice President
Xxxxx X. Xxxxxxx, Vice President
Xxx X. Xxxxxxx, Vice President
Xxxx X. Xxxxx, Vice President
XXXXXXXX BANK AND TRUST - MECOSTA DIVISION
Xxxxxx X. Xxxxxxx, President
FARMERS DIVISION
Xxxxx X. Xxxxxx, Vice President & Loan Administration
Xxxxx X. Xxxx, Vice President
Xxxxxxx X. Xxxxxx, Vice President
Xxxxx X. Lovely, Vice President
Xxxxxxx X. XxXxxxxx, Vice President
XXXXXXX DIVISION
Xxxx X. Xxxxxxx, Senior Vice President & Cashier
Xxxxxx X. Xxxxxxx, Vice President
13
