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EXHIBIT 2.1
AGREEMENT AND PLAN OF REORGANIZATION
between
MAGNA GROUP, INC.
a Delaware corporation
and
RIVER BEND BANCSHARES, INC.
an Illinois corporation
Dated as of October 11, 1995
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TABLE OF CONTENTS
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Page
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Recitals. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE I
THE MERGER
1.01 The Merger. . . . . . . . . . . . . . . . . . . . . . . . 1
1.02 Conversion of Shares; Election Procedures;
Dissenting Shares . . . . . . . . . . . . . . . . . . . . 2
1.03 Exchange Procedures . . . . . . . . . . . . . . . . . . . 5
1.04 Closing; Effective Time . . . . . . . . . . . . . . . . . 7
1.05 Further Assurances. . . . . . . . . . . . . . . . . . . . 7
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF MAGNA
2.01 Organization and Authority. . . . . . . . . . . . . . . . 7
2.02 Capitalization of Magna . . . . . . . . . . . . . . . . . 7
2.03 Authorization . . . . . . . . . . . . . . . . . . . . . . 8
2.04 Magna Financial and Other Reports . . . . . . . . . . . . 8
2.05 Registration and Proxy Statements . . . . . . . . . . . . 9
2.06 Events Subsequent to December 31, 1994. . . . . . . . . . 9
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF RIVER BEND
3.01 Organization and Authority. . . . . . . . . . . . . . . . 10
3.02 River Bend Subsidiaries . . . . . . . . . . . . . . . . . 10
3.03 Capitalization of River Bend. . . . . . . . . . . . . . . 10
3.04 Authorization . . . . . . . . . . . . . . . . . . . . . . 10
3.05 River Bend Financial and Other Reports. . . . . . . . . . 11
3.06 Events Subsequent to December 31, 1994. . . . . . . . . . 12
3.07 Investment and Loan Portfolios. . . . . . . . . . . . . . 12
3.08 Title to Properties; Insurance. . . . . . . . . . . . . . 12
3.09 Compliance with Laws. . . . . . . . . . . . . . . . . . . 13
3.10 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . 13
3.11 Litigation. . . . . . . . . . . . . . . . . . . . . . . . 13
3.12 Registration and Proxy Statements . . . . . . . . . . . . 13
3.13 Brokers and Finders . . . . . . . . . . . . . . . . . . . 13
3.14 Commitments and Contracts . . . . . . . . . . . . . . . . 14
3.15 Material Interests of Certain Persons . . . . . . . . . . 14
3.16 River Bend Benefit Plans. . . . . . . . . . . . . . . . . 14
3.17 Registration Obligations. . . . . . . . . . . . . . . . . 15
3.18 Administration of Trust Accounts. . . . . . . . . . . . . 15
3.19 Vote Required . . . . . . . . . . . . . . . . . . . . . . 15
3.20 Interest Rate Risk Management Instruments . . . . . . . . 16
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3.21 Discrimination, Occupational Safety, Labor and
Other Statutes and Regulations. . . . . . . . . . . . . . 16
ARTICLE IV
ENVIRONMENTAL MATTERS
4.01 Environmental Inspection. . . . . . . . . . . . . . . . . 16
4.02 Environmental Claims. . . . . . . . . . . . . . . . . . . 16
4.03 Hazardous Material. . . . . . . . . . . . . . . . . . . . 17
ARTICLE V
GOVERNMENTAL APPROVALS AND OTHER REQUIREMENTS
5.01 Regulatory Approvals. . . . . . . . . . . . . . . . . . . 17
5.02 Registration and Proxy Statements . . . . . . . . . . . . 17
5.03 Other Governmental Filings. . . . . . . . . . . . . . . . 18
5.04 Indemnity . . . . . . . . . . . . . . . . . . . . . . . . 18
5.05 Tax Opinion . . . . . . . . . . . . . . . . . . . . . . . 18
5.06 Agreements of Affiliates. . . . . . . . . . . . . . . . . 18
ARTICLE VI
RIVER BEND'S COVENANTS AND AGREEMENTS
6.01 Operation of Business . . . . . . . . . . . . . . . . . . 19
6.02 Preservation of Business. . . . . . . . . . . . . . . . . 20
6.03 Expenses. . . . . . . . . . . . . . . . . . . . . . . . . 20
6.04 Tax Opinion Certification . . . . . . . . . . . . . . . . 20
6.05 Sale of Magna Common Stock by Shareholders of
River Bend. . . . . . . . . . . . . . . . . . . . . . . . 20
6.06 Purchase Options for River Bend Stock . . . . . . . . . . 20
ARTICLE VII
MUTUAL COVENANTS AND AGREEMENTS
7.01 Access and Information. . . . . . . . . . . . . . . . . . 21
7.02 Current Information . . . . . . . . . . . . . . . . . . . 22
7.03 Press Releases. . . . . . . . . . . . . . . . . . . . . . 22
7.04 Intracorporate Transactions . . . . . . . . . . . . . . . 22
7.05 Representations . . . . . . . . . . . . . . . . . . . . . 22
7.06 Anti-Dilution . . . . . . . . . . . . . . . . . . . . . . 22
7.07 Tax Treatment . . . . . . . . . . . . . . . . . . . . . . 22
7.08 System Conversion . . . . . . . . . . . . . . . . . . . . 23
7.09 Miscellaneous Agreements and Consents . . . . . . . . . . 23
7.10 Notice to Other Party . . . . . . . . . . . . . . . . . . 23
7.11 Best Efforts. . . . . . . . . . . . . . . . . . . . . . . 23
7.12 Payments to Dissenters. . . . . . . . . . . . . . . . . . 23
7.13 Schedules and Exhibits. . . . . . . . . . . . . . . . . . 23
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ARTICLE VIII
CONDITIONS TO CLOSING
8.01 Conditions to Each Party's Obligations to
Effect the Merger . . . . . . . . . . . . . . . . . . . . 24
8.02 Conditions to Obligations of River Bend to
Effect the Merger . . . . . . . . . . . . . . . . . . . . 24
8.03 Conditions to Obligations of Magna to Effect
the Merger. . . . . . . . . . . . . . . . . . . . . . . . 26
ARTICLE IX
TERMINATION, AMENDMENT AND WAIVER
9.01 Termination . . . . . . . . . . . . . . . . . . . . . . . 28
9.02 Effect of Termination . . . . . . . . . . . . . . . . . . 29
9.03 Amendment . . . . . . . . . . . . . . . . . . . . . . . . 29
9.04 Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . 29
ARTICLE X
GENERAL PROVISIONS
10.01 Non-Survival of Representations, Warranties
and Agreements. . . . . . . . . . . . . . . . . . . . . . 29
10.02 Notices . . . . . . . . . . . . . . . . . . . . . . . . . 29
10.03 Entire Agreement; Enforcement . . . . . . . . . . . . . . 30
10.04 Counterparts. . . . . . . . . . . . . . . . . . . . . . . 30
10.05 Governing Law . . . . . . . . . . . . . . . . . . . . . . 30
10.06 Successors and Assigns. . . . . . . . . . . . . . . . . . 30
10.07 No Third Party Beneficiaries. . . . . . . . . . . . . . . 30
10.08 Table of Contents; Captions . . . . . . . . . . . . . . . 30
Exhibit A Plan of Merger
Exhibit B Affiliate Letter
Exhibit C Officer Certificate
Exhibit D Shareholder or Director Certificate
Exhibit E Supplemental Agreement of Xxxx X. Xxxxxxxx, Xx.
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AGREEMENT AND PLAN OF REORGANIZATION
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THIS AGREEMENT AND PLAN OF REORGANIZATION (the
"Agreement") is made and entered into as of the 11th day of
October, 1995, by and between MAGNA GROUP, INC., a Delaware
corporation ("Magna"), and RIVER BEND BANCSHARES, INC., an Illinois
corporation ("River Bend").
WHEREAS, the respective Boards of Directors of Magna and
River Bend have approved the merger of River Bend with and into
River Bend Acquisition Corporation ("RBAC"), a to be formed
Illinois corporation which will be a wholly owned subsidiary of
Magna (the "Merger"); and
WHEREAS, each of Magna and River Bend believes that such
proposed Merger, and the conversion of shares of capital stock of
River Bend into the Merger Consideration (as defined in Section
1.01 hereof) in the manner provided in this Agreement and the Plan
of Merger, a copy of which is attached hereto as Exhibit A (the
"Plan of Merger"), is desirable and in the best interests of its
stockholders and shareholders, respectively; and
WHEREAS, Magna and River Bend intend that the Merger
constitute a reorganization within the meaning of Section 368 of
the Internal Revenue Code of 1986, as amended (the "Code") and that
gain will be recognized by the shareholders of River Bend with
regard to the Stock Distribution (as defined in Section 1.02), the
Common Cash Distribution (as defined in Section 1.02) and the
Preferred Cash Distribution (as defined in Section 1.02), but only
in accordance with the provisions and limitations of Section 356 of
the Code.
NOW, THEREFORE, it is agreed:
ARTICLE I
THE MERGER
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1.01 The Merger. Subject to the terms and conditions of
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this Agreement and the Plan of Merger, Magna and River Bend agree
to effect the Merger of River Bend with and into RBAC in accordance
with the Illinois Business Corporation Act of 1983, as amended (the
"Illinois Statute"), and the separate corporate existence of River
Bend shall cease.
The parties agree that River Bend and RBAC will execute
a Plan of Merger substantially in the form attached hereto as
Exhibit A which provides for the terms of the Merger and the mode
of carrying the same into effect. The Merger shall be consummated
at the Effective Time (as defined in Section 1.04 hereof). At the
Effective Time, the outstanding shares of River Bend Stock (as
defined in Section 1.02 hereof) shall be converted into the right
to receive the Merger Consideration (as defined in Section 1.02
hereof), in accordance with Section 1.02 hereof and Article III of
the Plan of Merger.
Following the Effective Time, RBAC shall be the surviving
corporation and shall possess all of the rights, privileges,
immunities and franchises and shall be liable for all of the
liabilities and obligations of each of the merging corporations,
all as provided in the Illinois Statute.
Prior to the Effective Time, Magna shall appoint a
qualified bank or trust company, as agent (the "Exchange Agent"),
for the purpose of exchanging, after the Effective Time,
certificates representing shares of River Bend Stock for the Merger
Consideration and, following the Effective Time, Magna shall issue
and deliver to the Exchange Agent certificates representing shares
of common stock, $2.00 par value, of Magna ("Magna Common Stock")
and shall pay to the Exchange Agent such amounts of cash as shall
be required to be delivered as the Merger Consideration.
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1.02 Conversion of Shares; Election Procedures;
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Dissenting Shares.
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(a) Merger Consideration. At the Effective Time, by
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virtue of the Merger and without any action on the part of River
Bend, Magna, RBAC or the holders of any of the capital stock of
River Bend, the aggregate of all issued and outstanding shares of:
(i) Class A Preferred Stock, $100 par value, of
River Bend ("Preferred Stock") shall cease to be
outstanding and shall be converted into the right to
receive, in the aggregate, an amount in cash equal to
$599,100 (the "Preferred Cash Distribution");
(ii) Class I Voting Common Stock, $1.00 par value,
of River Bend ("Class I Common Stock") and Class II Non-
Voting Common Stock, $1.00 par value, of River Bend
("Class II Common Stock") shall cease to be outstanding
and shall be converted into the right to receive, in the
aggregate, (1) 550,240 shares of Magna Common Stock (the
"Stock Distribution") and (2) an amount in cash equal to
$11,668,175 (the "Common Cash Distribution"); provided,
however, that if the number of shares of Magna Common
Stock issuable to all holders of Class I Common Stock and
Class II Common Stock is insufficient in the reasonable
judgment of Xxxxxxxx & Xxxxxxxx to allow it to render the
opinion required by Section 5.05 of this Agreement, then,
Xxxxxxxx & Xxxxxxxx will advise Magna on the Closing Date
(as defined in Section 1.03 hereof) as to the minimum
number of additional shares of Magna Common Stock that
will be required to be issued as Stock Distribution (in
place of the Common Cash Distribution) in the Merger in
order to allow Xxxxxxxx & Xxxxxxxx to render such opinion
in its reasonable judgment. In the event that Magna is
required to issue additional shares of Magna Common
Stock, (1) the Stock Distribution shall equal A + B and
(2) the Common Cash Distribution shall equal C - (B x D).
For purposes of this Section 1.02(a)(ii):
A = 550,240 shares
B = The minimum number of additional shares
of Magna Common Stock, as determined by
Xxxxxxxx & Xxxxxxxx in its reasonable
judgment, that must be issued in the
Merger to the holders of Class I Common
Stock and Class II Common Stock as Stock
Distribution in order for Xxxxxxxx &
Xxxxxxxx to render the tax opinion
required by Section 5.05 of this
Agreement.
C = $11,668,175
D = $21.75; and
(iii) By the later of (1) ten (10) days after
the Effective Time or (2) the date on which a holder of
shares of Class I Common Stock and/or Class II Common
Stock surrenders their Certificate(s) (as defined in
Section 1.03 hereof) to the Exchange Agent, Magna shall
cause RBAC to distribute to the former holders of the
157,063 shares of Class I Common Stock and the 785,315
shares of Class II Common Stock (all such 942,378 shares
being treated equally but excluding any such shares as to
which dissenters' rights are then being pursued by the
former holder(s) thereof) beneficial interests in a trust
(the "Trust") that shall be the record owner of that
certain parcel of land identified by Parcel ID
No. 19-1-08-17-20-401-002.001 and consisting of two acres
more or less (the "Real Estate Consideration") (the Stock
Distribution, the Common Cash Distribution and the Real
Estate Consideration are collectively referred to herein
as the "Common Stock Consideration"). Any beneficial
interests that would
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otherwise be distributed to holders of shares as to which
dissenters' rights are then being pursued shall be
distributed to them if and when such dissenters' rights are
no longer being pursued and if such holders shall have
completed the dissent process such that they are not to
receive the Common Stock Consideration, then such interests
in the Trust shall be distributed to Magna. The Trust
shall have been formerly owned beneficially by River Bend.
The Trust shall contain terms acceptable to Magna providing
that Magna and the subsidiaries of Magna and River Bend
shall be indemnified and held harmless for any and all tax
liability (including any interest, penalties or additions
thereto) in excess of $90,000 that Magna, River Bend, any
subsidiary of Magna or any subsidiary of River Bend shall
incur by reason of the distribution of the Trust from
RBAC or payment of interests in the Trust to the former
holders of Class I Common Stock and/or Class II Common
Stock. Such indemnification shall not be subject to any
conditions precedent, other than a condition that Magna
permit the Trust to defend any proposed assessment of
tax. This indemnification obligation shall be guaranteed
by Xxxx X. Xxxxxxxx, Xx. for a period of one year
following the Effective Time; provided, however, in the
event (i) Magna or any subsidiary thereof, has filed a
tax return(s) which reports the distribution of the Real
Estate Consideration and such return(s) report the fair
market value of the Real Estate Consideration at any
amount such that Magna's and any subsidiary thereof's, in
the aggregate, tax liability is greater than $90,000 and
(ii) Magna, during the period ending one year after the
Closing Date, has provided notice to the Trust of such
additional tax due, the indemnification obligation of
Xx. Xxxxxxxx pursuant to this Section 1.02(a) (iii) shall
extend beyond such one year period, but solely with
respect to the tax liability that is the subject of the
notice provided by Magna to the Trust (e.g., the
distribution of the interests in the Trust to the former
shareholders of River Bend).
(iv) For purposes of this Agreement, the Common
Stock Consideration and the Preferred Cash Distribution
are collectively referred to herein as the "Merger
Consideration" and the Class I Common Stock, the Class II
Common Stock and the Preferred Stock are collectively
referred to herein as the "River Bend Stock."
(b) Share Conversion. At the Effective Time, each
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individual share of (i) Preferred Stock shall be converted into the
right to receive an amount in cash equal to $100 and (ii) Class I
Common Stock and Class II Common Stock (each share of such stock
being treated equally on a share by share basis) shall be converted
into the right to receive that share's proportionate interest in
the Common Stock Consideration, subject to adjustment as provided
in Sections 1.02(c) and (d) hereof.
(c) Conversion Election Procedures.
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(i) Concurrently with the mailing of the Proxy
Statement (as contemplated by Section 5.02 of this
Agreement, including the Prospectus contained in the
Registration Statement (also as contemplated by Section
5.02 of this Agreement)) to the shareholders of River
Bend, Magna shall cause the Exchange Agent to mail to
each holder of record of Class I Common Stock and/or
Class II Common Stock a form of election (the "Election
Form") on which such holder shall make the election as
provided for in this Section 1.02. Each Election Form
shall specify the composition of the proportionate
interest in the Stock Distribution and the Common Cash
Distribution received by that holder (subject to
adjustments as provided for herein), by specifying what
percentage of the value of the consideration to be
received by the holder shall be the Common Cash
Consideration and what percentage of the value of the
consideration shall be the Stock Consideration. For this
purpose, the Stock Consideration shall be valued at a
price equal to the average, per share closing price of
Magna Common Stock as reported on the Nasdaq Stock Market
for the five business
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days preceding three business days preceding the Closing
Date (the "Magna Share Value").
(ii) Any shares of Class I Common Stock or Class II
Common Stock with respect to which the holder thereof
shall not, as of the "Election Deadline" (as defined
below), have made an election, pursuant to Section
1.02(c)(i) of this Agreement, by submission to River Bend
of an effective, properly completed Election Form shall
be deemed to have elected to receive 50% of their
proportionate interest of the Common Stock Consideration
as Stock Distribution and 50% as Common Cash
Distribution. "Election Deadline" means 5:00 p.m., local
time, on the day preceding the day of the special meeting
of shareholders called to vote upon the Merger. Any
election for purposes of this Section 1.02 shall be
effective only if River Bend shall have received a
properly completed Election Form by the Election
Deadline. Any Election Form may be revoked or changed by
the person submitting such Election Form or any other
person to whom the subject shares are subsequently
transferred by written notice by such person to River
Bend at or prior to the Election Deadline.
(iii) All Election Forms shall be deemed to be
revoked if this Agreement shall have been terminated in
accordance with its terms. River Bend shall have
reasonable discretion to determine when any election,
modification or revocation is received and whether any
such election, modification or revocation is effective,
consistent with the duty of River Bend to give effect to
such elections, modifications or revocations to the
maximum extent possible. As soon as practicable after
the Election Deadline, River Bend shall deliver to the
Exchange Agent (i) a certified list that sets forth the
election made, if any, by each holder of Class I Common
Stock and/or Class II Common Stock and (ii) a copy of
each Election Form received by River Bend.
(iv) As soon as practicable after the Closing, Magna
shall cause the Exchange Agent to allocate among the
holders of Class I Common Stock and Class II Common Stock
the rights to receive the Stock Distribution and the
Common Cash Distribution as set forth in their respective
Election Forms; provided, however, to the extent that
holders of certificates representing shares of Class I
Common Stock and Class II Common Stock elect either (A)
more cash than equals the Common Cash Distribution or (B)
more Magna Common Stock than equals the Stock
Distribution, the type of merger consideration
oversubscribed shall be apportioned among the holders by
pro-rating that consideration, in proportion to the
amounts elected by the holders, so that the sum of the
amount of that form of consideration equals the amount
available to be received by the holders of the
certificates representing shares of Class I Common Stock
and Class II Common Stock, in the aggregate. The
remainder of each holder's merger consideration shall be
in the form of the undersubscribed merger consideration,
in an amount such that the fair market value of all
merger consideration (valuing the Stock Distribution
portion at a per share value equal to the Magna Share
Value) received by the holder equals the proportionate
amount of the Common Stock Consideration to which such
holder is entitled.
(v) The pro rata computations to be used by the
Exchange Agent shall be made by the Exchange Agent in the
reasonable exercise of its discretion. Each separate
entry on River Bend's list of shareholders shall be
presumed to represent a separate and distinct holder of
record of Class I Common Stock, Class II Common Stock or
Preferred Stock.
(vi) Only holders of shares of Class I Common Stock
and Class II Common Stock shall be entitled to complete
and submit an Election Form. Holders of shares of
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Preferred Stock shall be entitled to receive their
proportionate interest of the Preferred Cash Distribution
(as provided in Section 1.02(a)(i) of this Agreement).
(d) Adjustments for Post February 29, 1996 Closing Date.
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In the event that the Closing Date occurs after February 29, 1996,
then the Common Cash Consideration and the Preferred Cash
Distribution shall be adjusted in the following manner. An amount
shall be added to the Common Cash Consideration (after such number
has been adjusted as provided in Section 1.02(a)(ii) of this
Agreement but before any adjustment pursuant to this Section
1.02(d)) equal to (A) the product of (i) the sum of all dividends
declared by Magna on a single share of Magna Common Stock for
stockholders of record for the period beginning March 1, 1996 and
ending the day prior to the Closing Date and (ii) the number of
shares of Magna Common Stock comprising the Stock Consideration
(after such number has been adjusted as provided in Section
1.02(a)(ii) of this Agreement) less (B) the aggregate amount of
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dividends declared by River Bend on shares of Class I Common Stock
and Class II Common Stock during such period plus (C) the product
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of (i) the Common Cash Consideration (after such number has been
adjusted as provided in Section 1.02(a)(ii) of this Agreement but
before any adjustment pursuant to this Section 1.02(d)) times (ii)
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(1) the Federal funds rate, as published in The Wall Street
Journal, Midwest Edition, as such rate varies from time to time,
divided by (2) 365 times (iii) the number of days, inclusive, from
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February 29, 1996 to the day prior to the Closing Date. An amount
shall be added to the Preferred Cash Distribution equal to the
product of (A) the Preferred Cash Distribution times (B) (i) the
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Federal funds rate, as published in The Wall Street Journal,
Midwest Edition, as such rate varies from time to time, divided by
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(ii) 365 times (C) the number of days, inclusive, from February 29,
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1996 to the day prior to the Closing Date.
(e) Fractional Shares. No fractional shares of Magna
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Common Stock shall be issued. In lieu thereof, any shareholder of
River Bend who would be entitled to a fractional share of Magna
Common Stock shall receive an amount in cash, equal to the fraction
of a share to which such shareholder would have been entitled times
$21.75, rounded to the nearest whole cent. This value has been
agreed upon solely for the purpose of determining the conversion
rate for the Class I Voting Stock and the Class II Voting Stock
pursuant to this Agreement and the basis for the payment for
fractional shares under the Plan of Merger. No representation is
made that such value would be the value of shares for any other
purpose nor is any representation made that such value would be
relevant in determining the amount which any shareholder dissenting
from the merger would receive.
(f) Dissenting Shares. Shares of the outstanding River
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Bend Stock that are not voted for adoption of the Merger and with
respect to which the holder thereof has taken all necessary action
as of the Effective Time to perfect the shareholder's rights as a
dissenting shareholder in accordance with the applicable provisions
of the Illinois Business Corporation Act of 1983, as amended (the
"Illinois Statute") shall not be converted into the Merger
Consideration at or after the Effective Time unless and until the
holder of such shares withdraws the demand for payment of the fair
value of the shares or otherwise becomes ineligible to pursue the
rights of a dissenting shareholder under the Illinois Statute.
Holders of shares of River Bend Stock shall not be entitled to
receive any portion of the Merger Consideration that would have
been allocated to the holders of dissenting shares had such holders
not perfected their dissenters' rights pursuant to the Illinois
Statute.
(g) Unissued Shares. No payment shall be made in
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respect of authorized but unissued shares of River Bend Stock.
1.03 Exchange Procedures.
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(a) At or prior to the Effective Time, Magna shall
deposit, or shall cause to be deposited, with the Exchange Agent,
for the benefit of holders of certificates representing shares of
River Bend Stock (the "Certificates"), for exchange in accordance
with this Section 1.03, certificates representing the Stock
Distribution and such amount of cash as shall represent (i) the
Preferred Cash
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Distribution, (ii) the Common Cash Distribution and (iii) cash in lieu
of fractional shares, to be issued and paid pursuant to the Merger in
exchange for outstanding shares of River Bend Stock.
(b) As soon as practicable following the Effective Time,
Magna shall mail to each holder of record of shares of River Bend
Stock as of the Closing Date, a notice of the consummation of the
Merger and a form of letter of transmittal pursuant to which each
such holder shall transmit the Certificates or, in lieu thereof,
such evidence of lost, stolen or mutilated Certificate or
Certificates and such surety bond or other security as the Exchange
Agent may reasonably require. Such letters of transmittal shall
specify that risk of loss and title to the Certificate or
Certificates shall pass only upon delivery of such Certificate or
Certificates to the Exchange Agent.
(c) After the Effective Time, each holder of a
Certificate that surrenders such Certificate or, in lieu thereof,
the required documentation for a lost, stolen or mutilated
Certificate (the "Required Documentation") to the Exchange Agent
will, upon acceptance thereof by the Exchange Agent, be entitled to
the Merger Consideration.
(d) The Exchange Agent shall accept Certificates or, in
lieu thereof, the Required Documentation upon compliance with such
reasonable terms and conditions as the Exchange Agent may impose to
effect an orderly exchange thereof in accordance with customary
exchange practices. Certificates shall be appropriately endorsed
or accompanied by such instruments of transfer as the Exchange
Agent may reasonably require. If the tender of a Certificate or
the Required Documentation is not in compliance with such
reasonable terms and conditions, the Exchange Agent shall promptly
return the Certificate or Required Documentation with instructions
as to how to comply with such terms and conditions.
(e) Each outstanding Certificate shall until duly
surrendered to the Exchange Agent be deemed to evidence ownership
of the Merger Consideration into which the shares of River Bend
Stock represented by such Certificate shall have been converted
pursuant to the Merger.
(f) After the Effective Time, holders of Certificates
shall cease to have rights with respect to the shares of River Bend
Stock previously represented by such Certificates, and such
holder's sole rights shall be to exchange such Certificates for the
Merger Consideration issuable in the Merger. After the Effective
Time, there shall be no further transfer on the records of River
Bend of Certificates, and if such Certificates are presented to
River Bend for transfer, they shall be cancelled against delivery
of the Merger Consideration issuable or payable in the Merger. The
Exchange Agent shall not be obligated to deliver the Merger
Consideration to which any holder of River Bend Stock is entitled
as a result of the Merger until such holder surrenders the
Certificates or furnishes the Required Documentation as provided
herein. No interest will be accrued or paid on the cash component
of the Merger Consideration other than as provided in Section
1.02(d) hereof. No dividends or distributions declared after the
Effective Time on the Magna Common Stock representing the stock
component of the Merger Consideration will be remitted to any
person entitled to receive the Merger Consideration under this
Agreement until such person surrenders the Certificate or
Certificates or furnishes the Required Documentation, at which time
such dividends or distributions shall be remitted to such person,
without interest and less any taxes that may have been imposed
thereon. Neither Magna nor River Bend nor any affiliate thereof
shall be liable to any holder of shares of River Bend Stock
represented by any Certificate for any Merger Consideration
issuable or payable in the Merger paid to a public official
pursuant to applicable abandoned property, escheat or similar laws.
The Exchange Agent shall be entitled to rely upon the stock
transfer books of River Bend to establish the identity of those
persons entitled to the Merger Consideration, which books shall be
conclusive with respect thereto. In the event of a dispute with
respect to ownership of the shares of River Bend Stock represented
by any Certificate, the Exchange Agent shall be entitled to deposit
any Merger Consideration represented thereby with an independent
third party and thereafter be relieved with respect to any claims
thereto.
- 6 -
11
1.04 Closing; Effective Time. The closing (the
-----------------------
"Closing") of the Merger shall take place at the offices of
Xxxxxxxx & Xxxxxxxx, St. Xxxxx, Missouri promptly after the
satisfaction or waiver of all conditions to the Merger on a date to
be fixed by Magna (the "Closing Date") on the last Business Day (as
hereinafter defined ) of a calendar month in which the last of the
following events occurs: (i) the receipt of the requisite approval
of the Plan of Merger by the shareholders of River Bend as set
forth in Section 5.02 hereof and (ii) the receipt of the approvals
of the Board of Governors of the Federal Reserve System (the
"Federal Reserve Board") and the Illinois Commissioner of Banks and
Trust Companies (the "Illinois Commissioner"), and the expiration
of any waiting period after such approvals required by law or
regulation, or such later date as may be agreed to by the parties
in writing. At the Closing the parties shall each deliver to the
other such evidence of the satisfaction of the conditions to the
Merger as may reasonably be required (including materials required
to be delivered under Article VIII). Prior to the Closing Date,
the parties shall each execute Articles of Merger with respect to
the Plan of Merger and Magna shall cause such Articles of Merger to
be delivered, on the Closing Date, for filing with the Office of
the Secretary of State of the State of Illinois. The Merger shall
be effective on the date and at the time (the "Effective Time")
that the Secretary of State of the State of Illinois issues the
Certificate of Merger in accordance with the provisions of the
Illinois Statute. For purposes of this Agreement, "Business Day"
shall mean any day that the Office of the Secretary of State of the
State of Illinois is open for receipt of official corporate
filings.
1.05 Further Assurances. If at any time after the
------------------
Effective Time Magna shall consider it advisable that any further
conveyances, agreements, documents, instruments or assurances of
law or any other actions or things are necessary or desirable to
vest, perfect, confirm or record in RBAC the title to any property,
rights, privileges, powers or franchises of River Bend or RBAC, the
Board of Directors and officers of RBAC shall, and are hereby
authorized to, execute and deliver in the name and on behalf of
River Bend, RBAC or otherwise, any and all proper conveyances,
agreements, documents, instruments and assurances of law and do all
things necessary or proper to vest, perfect or confirm title to
such property, rights, privileges, powers and franchises in RBAC
and otherwise, to carry out the provisions of this Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF MAGNA
---------------------------------------
Magna represents and warrants to River Bend as follows.
For purposes of this Agreement, except in Section 2.01 and where
the context requires otherwise, any reference to Magna shall be
deemed to include Magna and each of Magna's subsidiaries (being any
entity of which Magna owns 100% of the outstanding voting stock),
and any reference to "material," "material adverse effect" or a
similar standard shall refer to the financial condition, operations
or other aspects of Magna and Magna's subsidiaries, taken as a
whole.
2.01 Organization and Authority. Magna (parent company
--------------------------
only) is a corporation duly incorporated, validly existing and in
good standing under the laws of the State of Delaware and has the
corporate power and authority to own its properties and assets and
to carry on its business as it is now being conducted. Magna is
qualified to do business in the States of Missouri and Illinois and
is not required to qualify to do business in any other state or
foreign jurisdiction. Magna is registered as a bank holding
company with the Federal Reserve Board under the Bank Holding
Company Act of 1956, as amended (the "BHC Act").
2.02 Capitalization of Magna. As of September 30, 1995,
-----------------------
the authorized capital stock of Magna consisted of (a) 40,000,000
shares of Magna Common Stock, of which at September 30, 1995,
27,881,344 of such shares were issued and outstanding;
(b) 1,000,000 shares of Preferred Stock, no par value per share, of
which at September 30, 1995 no shares were issued or outstanding
and of which at September 30, 1995, 400,000 shares have been
designated by Magna's Board of Directors as the Series A Junior
Participating Preferred Stock (the "Magna Series A
- 7 -
12
Preferred Stock"); (c) 49,500 shares of preferred stock, $20.00 par
value per share, designated Class B Voting Stock, of which, at
September 30, 1995, 2,037 shares were issued and outstanding; and (d)
1,000,000 shares of preferred stock, $0.10 par value per share,
designated Class C Nonvoting Stock, of which, at September 30, 1995,
no shares were issued and outstanding.
2.03 Authorization. The execution, delivery and
-------------
performance of this Agreement by Magna and the consummation of the
transactions contemplated hereby have been duly authorized by the
Board of Directors of Magna. No other corporate proceedings on the
part of Magna are necessary to authorize the execution and delivery
of this Agreement and the performance by Magna of the terms hereof.
This Agreement is a valid and binding obligation of Magna
enforceable against Magna in accordance with its terms except as
may be limited by applicable bankruptcy, insolvency, reorganization
or moratorium or other similar laws affecting creditors' rights
generally and except that the availability of equitable remedies is
within the discretion of the appropriate court.
Neither the execution, delivery and performance of this
Agreement by Magna, nor the consummation of the transactions
contemplated hereby, nor compliance by Magna with any of the
provisions hereof, will (a) in any material respect violate,
conflict with, or result in a breach of any provision of, or
constitute a default (or an event which, with notice or lapse of
time or both, would constitute a default) under, or result in the
termination of, or accelerate the performance required by, or
result in a right of termination or acceleration, or the creation
of any lien, security interest, charge or encumbrance upon any of
the properties or assets of Magna under any terms, conditions or
provisions of, (i) Magna's Certificate of Incorporation or Bylaws
or other charter documents of Magna, or (ii) any material note,
bond, mortgage, indenture, deed of trust, license, lease, agreement
or other instrument or obligation to which Magna is a party or by
which Magna may be bound, or to which Magna or its properties or
assets may be subject, or (b) subject to compliance with the
statutes and regulations referred to in the next paragraph, violate
in any material respect any judgment, ruling, order, writ,
injunction, decree, statute, rule or regulation applicable to Magna
or any of its properties or assets. No notice to, filing with,
authorization of, exemption by, or consent or approval of, any
public body or authority is necessary for the execution or delivery
by Magna of this Agreement.
Other than in connection or in compliance with the
provisions of the Illinois Statute, the Securities Act of 1933, as
amended, and the rules and regulations thereunder (the "Securities
Act"), the Securities Exchange Act of 1934, as amended, and the
rules and regulations thereunder (the "Exchange Act"), the
securities or blue sky laws of the various states and consents,
authorizations, approvals, notices or exemptions required under the
BHC Act and the banking laws of the State of Illinois no notice to,
filing with, authorization of, exemption by, or consent or approval
of, any public body or authority is necessary for the consummation
by Magna of the transactions contemplated by this Agreement.
2.04 Magna Financial and Other Reports. Magna has made
---------------------------------
available to River Bend the following financial statements and
other reports and documents (the "Magna Financial Statements"):
(a) Magna's Annual Report to Stockholders for the years
ended December 31, 1994, 1993 and 1992;
(b) Copies of all of Magna's Forms 10-K, 8-K, 10-Q and
8-A and definitive proxy statements filed with the SEC since
December 31, 1992, as amended;
(c) The annual FRY-6 Reports of Magna filed with The
Federal Reserve Bank of St. Louis for the fiscal years ended
December 31, 1994, 1993 and 1992.
The Magna Financial Statements have been prepared and
where required, filed in accordance with all provisions of
applicable law, including without limitation the Securities Act and
the
- 8 -
13
Exchange Act, and do not omit to state or reflect any material
fact concerning Magna required to be stated or reflected therein or
necessary to make the statements therein not misleading. The Magna
Financial Statements (i) have been prepared, where applicable, in
accordance with generally accepted accounting principles, except as
otherwise noted therein, (ii) present fairly the results of
operations and financial position of Magna for the periods and at
the times indicated, and (iii) are true and correct in all material
respects for the periods and at the times indicated.
Since January 1, 1992, Magna has filed, and subsequent to
the date hereof will file, all reports, registrations and
statements, together with any amendments required to be made with
respect thereto, that were and are required to be filed with
(i) the SEC, including, but not limited to, Forms 10-K, 10-Q and
8-K and proxy statements, and (ii) the Federal Reserve Board (all
such reports and statements are collectively referred to herein as
the "Magna Reports"). As of their respective dates, the Magna
Reports complied and will comply in all material respects with all
of the statutes, rules and regulations enforced or promulgated by
the regulatory authority with which they were or will be filed and
did not and will not contain any untrue statement of a material
fact or omit 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.
2.05 Registration and Proxy Statements. None of the
---------------------------------
information supplied or to be supplied by Magna for inclusion in
(a) the Registration Statement to be filed by Magna with the SEC
(the "Registration Statement") in connection with the Magna Common
Stock to be issued in the Merger, (b) the Proxy Statement to be
mailed to River Bend shareholders in connection with the meeting
(the "River Bend Shareholders' Meeting") to be called to consider
the Merger (the "Proxy Statement"), and (c) any other documents to
be filed with the SEC or any regulatory agency in connection with
the transactions contemplated hereby will, at the time the
Registration Statement is filed with the SEC or at the time it
becomes effective, at the time the Proxy Statement is mailed to
holders of River Bend Stock, at the time of the River Bend
Shareholders' Meeting and at the time of filing of such other
documents, respectively, contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein
in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. All
documents which Magna is responsible for filing with the SEC or any
regulatory agency in connection with the Merger will comply as to
form in all material respects with the provisions of applicable
law.
2.06 Events Subsequent to December 31, 1994. Since
--------------------------------------
December 31, 1994, except as disclosed in Schedule 2.06 hereto or
-------------
in the Magna Financial Statements filed prior to the date hereof,
there has been no (a) material adverse change in the financial
condition or operating results of Magna; or (b) damage, destruction
or loss materially adversely affecting the property or business of
Magna. Magna anticipates, on or before December 31, 1995,
converting Magna Bank of Missouri and Magna Bank of Illinois into
national banks and thereafter merging the two banks.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF RIVER BEND
--------------------------------------------
River Bend represents and warrants to Magna as follows.
For purposes of this Agreement, except in Sections 3.01 and 3.03
and where the context requires otherwise any reference to River
Bend shall be deemed to include River Bend and each of the "River
Bend Subsidiaries" (as defined in Section 3.02 below), and any
reference to "material," "material adverse effect" or a similar
standard shall refer to the financial condition, operations or
other aspects of River Bend and the River Bend Subsidiaries, taken
as a whole. A disclosure made in any schedule delivered by River
Bend pursuant to this Article III shall be deemed to have been made
in all such schedules.
- 9 -
14
3.01 Organization and Authority. River Bend is a
--------------------------
corporation duly incorporated, validly existing and in good
standing under the laws of the State of Illinois and has the
corporate power and authority to own its property and assets and to
carry on its business as it is now being conducted. River Bend is
not required to qualify to do business in any other state or
foreign jurisdiction. River Bend is registered as a bank holding
company with the Federal Reserve Board under the BHC Act.
3.02 River Bend Subsidiaries. Except as otherwise set
-----------------------
forth in Schedule 3.02 hereto, River Bend beneficially owns,
-------------
directly or indirectly, all the shares of the outstanding capital
stock of each of the subsidiaries listed in Schedule 3.02 hereto,
-------------
(herein called collectively the "River Bend Subsidiaries" or
individually a "River Bend Subsidiary"), which subsidiaries
constitute all of the material, direct or indirect subsidiaries of
River Bend. River Bend does not own more than 5% of the voting
power of any other corporation or entity. No equity securities of
any of the River Bend Subsidiaries are or may become required to be
issued by reason of any options, warrants, scrip, rights to
subscribe, calls or commitments of any character whatsoever; there
are outstanding no securities or rights convertible into or
exchangeable for shares of any capital stock of any River Bend
Subsidiary; and there are no other contracts, commitments,
understandings or arrangements, whether oral or written, by which
any River Bend Subsidiary is bound to issue additional shares of
its capital stock or options, warrants or rights to purchase or
acquire any additional shares of its capital stock. Except as
provided for under any applicable banking statute, all of the
shares of capital stock of each of the River Bend Subsidiaries
owned by River Bend are fully paid and nonassessable and are owned,
directly or indirectly, by it free and clear of any material claim,
lien, encumbrance or agreement with respect thereto. Each River
Bend Subsidiary is a banking association or a corporation duly
organized, validly existing and in good standing under the laws of
its jurisdiction of incorporation, and has the corporate power and
authority and all necessary material federal, state and local
authorizations to own or lease its properties and assets and to
carry on its business as it is now being conducted. The deposits
of each River Bend Subsidiary which is a banking institution and
accepts deposits are insured by the FDIC to the extent provided by
law under either the Bank Insurance Fund or the Savings Association
Insurance Fund.
3.03 Capitalization of River Bend. The authorized
----------------------------
capital stock of River Bend consists of (i) 200,000 shares of Class
I Common Stock, of which, as of the date hereof, 157,063 shares
were issued and outstanding, (ii) 1,000,000 shares of Class II
Common Stock, of which, as of the date hereof, 785,315 shares were
issued and outstanding, and (iii) 10,000 shares of Preferred Stock,
of which, as of the date hereof, 5,991 shares were issued and
outstanding.
Other than as set forth in this Section 3.03, there are
no other shares of capital stock or other equity securities of
River Bend outstanding and no other outstanding options, warrants,
scrip, rights to subscribe, calls or commitments of any character
whatsoever relating to, or securities or rights convertible into or
exchangeable for, shares of any capital stock of River Bend, or
contracts, commitments, understandings or arrangements by which
River Bend was or may become bound to issue additional shares of
its capital stock or options, warrants or rights to purchase or
acquire any additional shares of its capital stock. Attached
hereto as Schedule 3.03 is a current and accurate list of River
-------------
Bend's shareholders, including addresses, dated as of the date
hereof.
3.04 Authorization. The execution, delivery and
-------------
performance of this Agreement and the Plan of Merger by River Bend
and the consummation of the transactions contemplated hereby and
thereby have been duly authorized by the Board of Directors of
River Bend. No other corporate proceedings on the part of River
Bend are necessary to authorize the execution and delivery of this
Agreement and the Plan of Merger and, except for the approval of
the Merger by River Bend's shareholders, the performance by River
Bend of the terms hereof and thereof. Each of this Agreement and
the Plan of Merger is a valid and binding obligation of River Bend
enforceable against River Bend in accordance with its terms except
as may be limited by applicable bankruptcy, insolvency,
reorganization or moratorium or other similar laws affecting
creditors' rights generally and except that the availability of
equitable remedies is within the discretion of the appropriate
court.
- 10 -
15
Neither the execution, delivery and performance of this
Agreement and the Plan of Merger by River Bend, nor the
consummation of the transactions contemplated hereby or thereby,
nor compliance by River Bend with any of the provisions hereof or
thereof, will (a) in any material respect violate, conflict with,
or result in a breach of any provision of, or constitute a default
(or an event which, with notice or lapse of time or both, would
constitute a default) under or result in the termination of, or
accelerate the performance required by, or result in a right of
termination or acceleration, or the creation of any lien, security
interest, charge or encumbrance upon any of the properties or
assets of River Bend or any River Bend Subsidiary under any terms,
conditions or provisions of, (i) River Bend's Articles of
Incorporation or Bylaws or other charter documents of River Bend or
any River Bend Subsidiary or, (ii) subject to receipt of applicable
waivers or consents shown on Schedule 3.04, any material note,
-------------
bond, mortgage, indenture, deed of trust, license, lease, agreement
or other instrument or obligation to which River Bend or any River
Bend Subsidiary is a party or by which River Bend or any River Bend
Subsidiary may be bound, or to which River Bend or any River Bend
Subsidiary or the properties or assets of any of them may be
subject, or (b) subject to compliance with the statutes and
regulations referred to in the next paragraph, violate in any
material respect any judgment, ruling, order, writ, injunction,
decree, statute, rule or regulation applicable to River Bend or any
of the River Bend Subsidiaries or any of their respective
properties or assets. No notice to, filing with, authorization of,
exemption by, or consent or approval of, any public body or
authority is necessary for the execution or delivery by River Bend
of this Agreement and the Plan of Merger.
Other than in connection or in compliance with the
provisions of the Illinois Statute, the Securities Act, the
Exchange Act, the securities or blue sky laws of the various states
and consents, authorizations, approvals, notices or exemptions
required under the BHC Act and the banking laws of the State of
Illinois, no notice to, filing with, authorization of, exemption
by, or consent or approval of, any public body or authority is
necessary for the consummation by River Bend of the transactions
contemplated by this Agreement including the Plan of Merger.
3.05 River Bend Financial and Other Reports. River Bend
--------------------------------------
has made available to Magna the following financial statements and
other reports and documents (the "River Bend Financial
Statements"):
(a) River Bend's audited consolidated financial
statements and the notes thereto as prepared by River Bend's
independent accountants for the years ended December 31, 1994, 1993
and 1992 and all unaudited reports for any interim periods since
December 31, 1994;
(b) Consolidated Reports of Condition and Income of each
of the River Bend Subsidiaries, where applicable, for the fiscal
years ended December 31, 1994, 1993 and 1992; and
(c) The annual FRY-6 Reports filed with The Federal
Reserve Bank of St. Louis of River Bend for the fiscal years ended
December 31, 1994, 1993 and 1992.
The River Bend Financial Statements have been prepared
and, where required, filed in accordance with all provisions of
applicable law and do not omit to state or reflect any material
fact concerning River Bend required to be stated or reflected
therein or necessary to make the statements therein not misleading.
The River Bend Financial Statements (i) have been prepared, where
applicable, in accordance with generally accepted accounting
principles, except as otherwise noted therein, (ii) present fairly
the results of operations and financial position of River Bend for
the periods and at the times indicated, and (iii) are true and
correct in all material respects for the periods and at the times
indicated.
Since January 1, 1992, River Bend and the River Bend
Subsidiaries have filed, and subsequent to the date hereof will
file, all reports and statements, together with any amendments
required to be made with respect thereto, that were and are
required to be filed with (i) the Federal
- 11 -
16
Reserve Board, (ii) the FDIC and (iii) any applicable state banking
authorities (all such reports and statements are collectively referred
to herein as the "River Bend Reports"). As of their respective dates,
the River Bend Reports complied and will comply in all material
respects with all of the statutes, rules and regulations enforced or
promulgated by the regulatory authority with which they were filed and
did not and will not contain any untrue statement of a material fact
or omit 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.
3.06 Events Subsequent to December 31, 1994. Since
--------------------------------------
December 31, 1994, except as disclosed in Schedule 3.06 hereto or
-------------
in the River Bend Financial Statements filed prior to the date
hereof, there has been no (a) material adverse change in the
financial condition or operating results of River Bend; (b) damage,
destruction or loss materially adversely affecting the property or
business of River Bend; or (c) declaration, setting aside or
payment of any dividend on, or any distribution in respect of, the
River Bend Stock, other than (i) a dividend of $12.00 per share
with respect to the Preferred Stock payable to the shareholders of
record on January 24, 1995 and paid on January 31, 1995, (ii) a
dividend of $0.09 per share with respect to the Class I Common
Stock and Class II Common Stock payable to shareholders of record
on February 17, 1995 and paid on February 24, 1995, (iii) a
dividend of $0.09 per share with respect to the Class I Common
Stock and Class II Common Stock payable to shareholders of record
on May 18, 1995 and paid on May 25, 1995 and (iv) a dividend of
$0.09 per share with respect to the Class I Common Stock and Class
II Common Stock payable to shareholders of record on August 31,
1995 and payable on August 31, 1995.
3.07 Investment and Loan Portfolios. All United States
------------------------------
Treasury securities, obligations of other United States Government
agencies and corporations, obligations of States and political
subdivisions of the United States and other investment securities
shown on the River Bend Financial Statements at December 31, 1994
or which are purchased after December 31, 1994 but before the
Effective Time were, and will be, carried in the aggregate at no
more than cost adjusted for amortization of premiums and accretion
of discounts, subject to any adjustment required for securities
classified as available for sale or held for trading under
Statement of Financial Accounting Standard No. 115, "Accounting for
Certain Investments in Debt and Equity Securities." Except as
disclosed on Schedule 3.07, all loans and discounts shown on the
-------------
River Bend Financial Statements at December 31, 1994 or which are
entered into after December 31, 1994 but before the Effective Time
were, and will be, made in all material respects for good, valuable
and adequate consideration in the ordinary course of the business
of River Bend, and the notes or other evidence of indebtedness
evidencing them are and will be, in all material respects,
enforceable, valid, true and genuine and what they purport to be.
River Bend has complied and will prior to the Effective Time comply
with all laws and regulations relating to such loans, or to the
extent there has not been such compliance, such failure to comply
will not materially interfere with collections. River Bend's
reserve for possible loan and lease losses shown on the River Bend
Financial Statements as of December 31, 1994 or which is allocated
after December 31, 1994 but before the Effective Time was, and will
be, adequate to absorb reasonably anticipated losses in the loan
and lease portfolios of River Bend, in view of the size and
character of such portfolios, current economic conditions, and
other pertinent factors, and no facts have subsequently come to the
attention of management of River Bend which would cause it to
restate any of the River Bend Financial Statements in any material
way the level of such reserve for possible losses on loans and
leases.
3.08 Title to Properties; Insurance. River Bend has
------------------------------
marketable title, insurable at standard rates, free and clear of
all material liens, charges and encumbrances (except taxes which
are a lien but not yet payable and liens, charges or encumbrances
reflected in the River Bend Financial Statements) to all material
real and personal properties shown on the latest applicable River
Bend Financial Statements as belonging to it (including leasehold
interests) or acquired since the date thereof (except any
properties subsequently disposed of in the ordinary course of
business). Except as set forth on Schedule 3.08, all leases
-------------
material to River Bend pursuant to which River Bend, as lessee,
leases real or personal property are valid and effective in
accordance with their respective terms in all
- 12 -
17
material respects, and there is not, under any of such leases, any
material existing default by River Bend, or (to the best knowledge of
River Bend) any other party thereto, or any event which with notice or
lapse of time or both would constitute such a material default. All
such properties comply in all material respects with all applicable
private agreements, zoning requirements and other governmental laws
and regulations relating thereto and there are no material
condemnation proceedings pending or, to the knowledge of River
Bend, threatened with respect to such properties. All material
insurable properties owned or leased by River Bend are adequately
insured by financially sound and reputable insurers in such amounts
and against fire and other risks insured against by extended
coverage and public liability insurance, as is customary with
companies of the same size and in the same business.
3.09 Compliance with Laws. River Bend has all material
--------------------
licenses, franchises, permits and other governmental authorizations
that are legally required to enable it to conduct its business as
presently conducted in all material respects, is in compliance in
all material respects with all laws and regulations, and has filed
all material reports required by any governmental or other
regulatory body. River Bend is also in compliance in all material
respects with all material agreements to which it is a party.
3.10 Taxes. River Bend has heretofore made available to
-----
Magna copies of the federal and state tax returns for River Bend
and all notices related thereto for the five fiscal years
immediately preceding the date of this Agreement. River Bend has
filed all material federal, state and local tax returns due in
respect of any of its businesses or properties in a timely fashion
and has paid or made appropriate provisions for all amounts due as
shown on such returns. All such returns fairly reflect in all
material respects the information required to be presented therein.
Except as disclosed on Schedule 3.10, all provisions for accrued
-------------
but unpaid taxes contained in the River Bend Financial Statements
were made in accordance with generally accepted accounting
principles and in the aggregate do not materially fail to provide
for potential tax liabilities. No audit, examination or
investigation of the tax returns of River Bend is presently being
conducted or, to the knowledge of River Bend, threatened by any
taxing authority.
3.11 Litigation. Except as disclosed in Schedule 3.11,
---------- -------------
there is no litigation or other proceeding pending or, to the
knowledge of River Bend, threatened, before any judicial,
administrative or regulatory agency or tribunal, to which River
Bend is a party or to which the property of River Bend is subject,
which would have a material adverse effect upon River Bend's
business or condition.
3.12 Registration and Proxy Statements. None of the
---------------------------------
information supplied or to be supplied by River Bend for inclusion
in (a) the Registration Statement, (b) the Proxy Statement and
(c) any other documents to be filed with the SEC or any regulatory
agency in connection with the transactions contemplated hereby
will, at the time the Registration Statement is filed with the SEC
or at the time it becomes effective, at the time the Proxy
Statement is mailed to holders of River Bend Stock, at the time of
River Bend Shareholders' Meeting, and at the time of filing of such
other documents, respectively, contain any untrue statement of a
material fact or omit to state a material fact required to be
stated therein in order to make the statements therein, in light of
the circumstances under which they were made, not misleading. All
documents which River Bend is responsible for filing with the SEC
or any regulatory agency in connection with the Merger will comply
as to form in all material respects with the provisions of
applicable law.
3.13 Brokers and Finders. Except for Xxxxxx &
-------------------
Associates, Inc., neither River Bend nor any of its officers,
directors or employees has employed any broker or finder or
incurred any liability for any financial advisory fees, brokerage
fees, commissions or finder's fees, and, except for Xxxxxx and
Associates, Inc., no broker or finder has acted directly or
indirectly for River Bend in connection with this Agreement, the
Plan of Merger, or the transactions contemplated hereby or thereby.
- 13 -
18
3.14 Commitments and Contracts. Except as set forth on
-------------------------
Schedule 3.14 neither River Bend nor any River Bend Subsidiary is
-------------
a party or subject to any of the following (whether written or
oral, express or implied):
(i) any employment contract or understanding
(including any understandings or obligations with respect
to severance or termination pay liabilities or fringe
benefits) with any present or former officer, director,
employee or consultant (other than those which are
terminable at will by River Bend or such subsidiary);
(ii) any plan, contract or understanding providing
for any bonus, pension, option, deferred compensation,
retirement payment, profit sharing or similar arrangement
with respect to any present or former officer, director,
employee or consultant other than as set forth in Section
3.16;
(iii) any contract not made in the ordinary course
of business containing covenants which limit the ability
of River Bend or any River Bend Subsidiary to compete in
any line of business or with any person or which involve
any restriction of the geographical area in which, or
method by which, River Bend or any River Bend Subsidiary
may carry on its business (other than as may be required
by law or applicable regulatory authorities);
(iv) any other contract or agreement which is a
"material contract" within the meaning of Item 601(b)(10)
of Regulation S-K issued under the Securities Act; or
(v) any lease with annual rental payments
aggregating $20,000 or more.
3.15 Material Interests of Certain Persons. Except as
-------------------------------------
set forth on Schedule 3.15, no officer or director of River Bend or
-------------
any River Bend Subsidiary, or any "associate" (as such term is
defined in Rule 14a-1 under the Exchange Act) of any such officer
or director, has any material interest in any material contract or
property (real or personal), tangible or intangible, used in or
pertaining to the business of River Bend or any River Bend
Subsidiary.
Schedule 3.15 sets forth a correct and complete list of
-------------
any loan from River Bend or any River Bend Subsidiary to any
present officer, director, employee or any associated or related
interest of any such person which was required under Regulation 0
of the Federal Reserve Board or applicable state law to be approved
by or reported to River Bend's or such River Bend Subsidiary's
Board of Directors.
3.16 River Bend Benefit Plans.
------------------------
(a) The only "employee benefit plans" within the meaning
of Section 3(3) of the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), for which River Bend or any River Bend
Subsidiary acts as the plan sponsor as defined in ERISA Section
3(16)(B), and with respect to which any liability under ERISA or
otherwise exists or may be incurred by River Bend or any River Bend
Subsidiary are those set forth on Schedule 3.16 (the "Plans"). No
-------------
Plan is a "multiemployer plan" within the meaning of Section 3(37)
of ERISA.
(b) Each Plan is and has been in all material respects
operated and administered in accordance with its provisions and
applicable law. Except as set forth on Schedule 3.16, River Bend
-------------
or the River Bend Subsidiaries have received favorable
determination letters from the Internal Revenue Service under the
provisions of the Tax Equity and Fiscal Responsibility Act
("TEFRA"), the Deficit Reduction Act ("DEFRA"), the Retirement
Equity Act ("REA") and the Tax Reform Act of 1986 for each of the
Plans to which the qualification requirements of Section 401(a) of
the Code, apply. River Bend knows of no reason that any Plan which
is subject to the qualification provisions of Section 401(a) of
- 14 -
19
the Code is not "qualified" within the meaning of Section 401(a) of
the Code and that each related trust is not exempt from taxation under
Section 501(a) of the Code.
(c) Each Plan that is subject to ERISA did not, in each
case, as of the end of the last plan year, have any unfunded vested
benefits for purposes of payment of premiums to the Pension Benefit
Guaranty Corporation ("PBGC"), as reported on each such Plan's PBGC
Form 1.
(d) Except as disclosed in Schedule 3.16, no Plan or any
-------------
trust created thereunder, nor any trustee, fiduciary or
administrator thereof, has engaged in a "prohibited transaction",
as such term is defined in ERISA or Section 4975 of the Code, or
breached a fiduciary duty which could subject such plan or trust,
or any trustee, fiduciary or administrator thereof, or any party
dealing with any such Plan or trust, to civil or criminal liability
under ERISA or to the tax or penalty on prohibited transactions
imposed by said Section 4975.
(e) Except as set forth on Schedule 3.16, no Plan or any
-------------
trust created thereunder has been terminated, nor have there been
any "reportable events" with respect to any Plan, as that term is
defined in Section 4043 of ERISA.
(f) No Plan or any trust created thereunder has incurred
any "accumulated funding deficiency", as such term is defined in
Section 412 of the Code (whether or not waived) during the last
five (5) Plan years.
(g) All filings and reports as to such Plans required to
have been made on or prior to the date hereof to the Internal
Revenue Service, the United States Department of Labor or any other
governmental authority, or any individual, have been made on or
prior to the date hereof.
(h) There is no material litigation, disputed claim,
governmental proceeding or investigation pending or threatened with
respect to any of the Plans, the related trusts or any fiduciary,
trustee, administrator or sponsor of such Plans.
(i) River Bend and each of the River Bend Subsidiaries
have complied, in all material respects, with the provisions of
Section 4980B of the Code and Sections 601 through 608 of ERISA and
is not liable for any excise tax under Section 4980B of the Code.
3.17 Registration Obligations. Except as set forth on
------------------------
Schedule 3.17, neither River Bend nor any River Bend Subsidiary is
-------------
under any obligation, contingent or otherwise, which will survive
the Merger by reason of any agreement to register any of its
securities under the Securities Act.
3.18 Administration of Trust Accounts. Except as set
--------------------------------
forth on Schedule 3.18, River Bend and each River Bend Subsidiary
-------------
has properly administered in all material respects and which could
reasonably be expected to be material to the financial condition of
River Bend all accounts for which it acts as a fiduciary, including
but not limited to accounts for which it serves as a trustee,
agent, custodian, personal representative, guardian or investment
advisor, in accordance with the terms of the governing documents
and applicable state and federal law and regulation and common law.
Neither River Bend, any River Bend Subsidiary, nor any director,
officer or employee of River Bend or any River Bend Subsidiary has
committed any breach of trust with respect to any such fiduciary
account which is material to or could reasonably be expected to be
material to the financial condition of River Bend, and the
accountings for each such fiduciary account are true and correct in
all material respects and accurately reflect the assets of such
fiduciary account.
3.19 Vote Required. The affirmative vote of the holders
-------------
of at least two-thirds of the outstanding shares of River Bend
Stock (Class I Common Stock, Class II Common Stock and Preferred
Stock each voting as a separate class) is the only vote of the
shareholders of River Bend necessary to approve the Merger and
other transactions contemplated hereby.
- 15 -
20
3.20 Interest Rate Risk Management Instruments.
-----------------------------------------
(a) Set forth on Schedule 3.20(a) is a list as of the
----------------
date hereof of all interest rate swaps, caps, floors and option
agreements and other interest rate risk management arrangements to
which River Bend or any of the River Bend Subsidiaries is a party
or by which any of their properties or assets may be bound.
(b) All such interest rate swaps, caps, floors and
option agreements and other interest rate risk management
arrangements to which River Bend or any of the River Bend
Subsidiaries is a party or by which any of their properties or
assets may be bound were entered into in the ordinary course of
business and, to the best knowledge of River Bend, in accordance
with prudent banking practice and applicable rules, regulations and
policies of the appropriate regulatory authorities and with
counterparties believed to be financially responsible at the time
and are legal, valid and binding obligations and are in full force
and effect. River Bend and each of the River Bend Subsidiaries has
duly performed in all material respects all of its obligations
thereunder to the extent that such obligations to perform have
accrued, and to the best knowledge of River Bend, there are no
material breaches, violations or defaults or allegations or
assertions of such by any party thereunder.
3.21 Discrimination, Occupational Safety, Labor and Other
----------------------------------------------------
Statutes and Regulations. No person, party or labor organization
------------------------
(including, but not limited to, governmental agencies of any kind)
has any claim, action or proceeding pending or, to River Bend's
knowledge, threatened against River Bend arising out of any
statute, ordinance or regulation relating to the payment of wages
or benefits, plant closing laws, discrimination in employment,
employment practices, immigration, continuation of health insurance
benefits or occupational safety and health standards (including,
but without limiting the foregoing, any applicable state statutes,
the Fair Labor Standards Act, National Labor Relations Act, Title
VII of the Civil Rights Act of 1964, as amended, the Age
Discrimination in Employment Act of 1967, as amended, or the
Americans with Disabilities Act), nor, to River Bend's knowledge,
is there any basis for any such claim, action or proceeding.
Attached hereto as Schedule 3.21 is a copy of each collective
-------------
bargaining agreement to which River Bend or a River Bend Subsidiary
is a party.
ARTICLE IV
ENVIRONMENTAL MATTERS
---------------------
4.01 Environmental Inspection. After the execution of
------------------------
this Agreement, Magna may commence or cause to be commenced
environmental assessments, including but not limited to an
inspection, with respect to each of the Bank Premises (as
hereinafter defined) to the extent deemed appropriate by Magna in
its sole and absolute discretion. River Bend agrees to cooperate
with Magna and its environmental consultants with respect to such
inspections and audits, which cooperation shall include, but shall
not be limited to, River Bend providing reasonable access to the
Bank Premises for the purposes of inspection, sampling and analysis
by Magna and its consultants, and making River Bend's employees
reasonably available for interviews regarding environmental
matters. The cost of the audits shall be at Magna's sole cost and
expense and such assessments must be completed within 55 days after
the date hereof. Should the assessments indicate risks, conditions
or environmental concerns unacceptable to Magna in its sole and
absolute discretion, Magna shall have the right for a period of ten
days following the end of such 45 day period, to terminate this
Agreement, which shall be Magna's sole remedy in such event. Bank
Premises means the banking houses, drive-in banking facilities and
teller facilities (staffed or automated), together with appurtenant
parking, storage, and other areas owned or leased by River Bend.
4.02 Environmental Claims. River Bend represents and
--------------------
warrants that, except as set forth on Schedule 4.02, no person or
-------------
governmental unit or agency has asserted, and to the best knowledge
of management of River Bend, no person or governmental unit or
agency has, any claim or basis for any action or proceeding against
River Bend or any Bank Premises arising under the
- 16 -
21
Comprehensive Environmental Response, Compensation and Liability Act
of 1980, Federal Water Pollution Control Act (Clean Water Act), the
Resource Conservation and Recovery Act, the Clean Air Act, the Toxic
Substance Control Act, the Coastal Zone Management Act, the Power
Plant and Industrial Fuel Use Act of 1978, the National
Environmental Policy Act (Environmental Impact Statement), Illinois
Environmental Protection Act, all as amended, or any
anti-pollution, waste control and disposal, or environmental
"clean-up" provision of any statute, ordinance, regulation, rule or
guideline of any federal, state or local governmental unit or
authority, and all regulations and standards enacted pursuant
thereto and all permits and authorizations issued in connection
therewith (an "Environmental Matter").
Except as otherwise disclosed in Schedule 4.02, River
-------------
Bend has not been subject to or received any oral or written notice
of, nor to the best of its knowledge does it have reason to believe
there is any potential existing or pending violation, citation or
complaint relating to an Environmental Matter. Other than as set
forth on Schedule 4.02, to the best knowledge of River Bend, no
-------------
underground tank is now or has been located at any facility owned
by or leased to River Bend and no Hazardous Material (hereinafter
defined) has been generated, treated, stored, disposed of or
otherwise deposited in or on or allowed to emanate from any such
facility which may support a material claim or material cause of
action under the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended, or any other federal, state
or local governmental statute, ordinance, regulation, rule or
guideline.
4.03 Hazardous Material. For the purposes of this
------------------
Agreement, the term Hazardous Material shall include petroleum,
petroleum products, those substances defined as hazardous
substances in the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 (as amended), those wastes
defined as hazardous wastes under the Resource Conservation and
Recovery Act (as amended), and any other substances, materials or
wastes identified as being hazardous, toxic or dangerous under any
local, state or federal environmental law or regulation.
ARTICLE V
GOVERNMENTAL APPROVALS AND OTHER REQUIREMENTS
---------------------------------------------
5.01 Regulatory Approvals. River Bend and Magna will
--------------------
cooperate fully, provide all necessary information and data, and
render all assistance necessary or appropriate to facilitate the
filing by Magna, as soon as practicable after the execution of this
Agreement, of applications with (i) the Federal Reserve Board for
approval under the BHC Act, (ii) the Illinois Commissioner for
approval under the Illinois Banking Act and (iii) any other
applicable statutes of the Merger, to the extent required, and will
use their best efforts to obtain such approval.
5.02 Registration and Proxy Statements. River Bend and
---------------------------------
Magna will cooperate fully, provide all necessary information and
data, and render all assistance necessary or appropriate to
facilitate filing by Magna, as soon as practicable after the
execution of this Agreement, of the Registration Statement, and
shall use their best efforts to have the Registration Statement
declared effective as promptly as practicable. River Bend and
Magna shall also take any action required to be taken under any
applicable state blue sky or securities laws in connection with the
issuance of the shares of Magna Common Stock pursuant to the
Merger. River Bend shall furnish such information as may
reasonably be required in connection with any such action. River
Bend shall call the River Bend Shareholders' Meeting to be held as
soon as practicable for the purpose of voting upon the Plan of
Merger. In connection with the River Bend Shareholders' Meeting,
Magna shall prepare, subject to the review and consent of River
Bend, the Proxy Statement (which shall be part of the Registration
Statement) and mail the same to the shareholders of River Bend.
The Board of Directors of River Bend shall, subject to advice of
counsel with respect to its fiduciary obligations, recommend
approval of the Plan of Merger. River Bend shall, subject to
advice of counsel with respect to the Board of Directors' fiduciary
obligations, use its best efforts to obtain the approval of its
shareholders. At its Shareholders'
- 00 -
00
Xxxxxxx, Xxxxx Xxxx shall not submit any matter unrelated to the
transactions contemplated by this Agreement for approval of its
shareholders (except with the prior consent of Magna, which consent
shall not be unreasonably withheld). Promptly after the River Bend
Shareholders' Meeting, River Bend will deliver to Magna a true and
correct list of the names and addresses of, and the number of shares
of the River Bend Stock owned by, each of its shareholders who has
filed a timely written objection to the Merger and who has not voted
in favor thereof as provided in the Illinois Statute to preserve
rights as a dissenting shareholder.
5.03 Other Governmental Filings. River Bend and Magna
--------------------------
will file all necessary applications or notices with appropriate
state securities commissioners or authorities, and state banking
supervisory agencies or authorities, as may be necessary or
appropriate to effect the Merger.
5.04 Indemnity. River Bend and Magna shall each
---------
indemnify and hold harmless the other, and each of the other's
directors and officers, and each person, if any, who controls the
other party within the meaning of Section 15 of the Securities Act,
from and against any and all losses, claims, damages, expenses or
liabilities, joint or several, including legal fees and expenses,
to which they or any of them may become subject under the
Securities Act or under any other statute or at common law, insofar
as such losses, claims, damages, expenses or liabilities arise out
of or are based upon any untrue statement, or alleged untrue
statement, of a material fact in the written information furnished
hereunder by the indemnifying party, or are based upon the
omission, or alleged omission by the indemnifying party, to state
a material fact required to be stated, or necessary to make the
statements contained in such information not misleading, except as
may be limited by the rules and regulations of the SEC. Magna
shall indemnify and hold harmless Xxxx X. Xxxxxxxx, Xx. from and
against any and all losses, claims, damages, expenses or
liabilities, joint or several, including legal fees and expenses,
to which he may become subject under the Section 11(a)(3) of the
Securities Act, insofar as such losses, claims, damages, expenses
or liabilities arise out of or are based upon any untrue statement,
or alleged untrue statement, of a material fact in the written
information furnished hereunder by Magna, or are based upon the
omission, or alleged omission by Magna, to state a material fact
required to be stated, or necessary to make the statements
contained in such information not misleading, except as may be
limited by the rules and regulations of the SEC.
5.05 Tax Opinion. An opinion of Xxxxxxxx & Xxxxxxxx
-----------
shall be delivered and dated as of the date of filing of the
Registration Statement and as of the Closing Date to the effect
that the Merger will constitute a reorganization within the meaning
of Section 368 of the Code and that gain will be recognized by the
shareholders of River Bend with regard to the Stock Distribution,
the Common Cash Distribution and the Preferred Cash Distribution,
but only in accordance with the provisions and limitations of
Section 356 of the Code; provided, however, that certain holders of
Preferred Stock will recognize gain or loss in accordance with the
provisions of Section 302 of the Code.
5.06 Agreements of Affiliates. As soon as practicable
------------------------
following the River Bend Shareholders' Meeting, River Bend agrees
to deliver a letter identifying all persons or entities whom it
believes to be, at the time of the River Bend Shareholders'
Meeting, its "affiliates" for purposes of Rule 145 under the
Securities Act. River Bend shall cause each person or entity who
is identified as an "affiliate" in the letter referred to above to
deliver to Magna a written agreement dated the date of the River
Bend Shareholders' Meeting, in the form attached hereto as Exhibit
B, providing such person or entity will not sell, pledge, transfer
or otherwise dispose of the shares of Magna Common Stock owned by
such person except in compliance with the applicable provisions of
the Securities Act. River Bend will use its best efforts to obtain
a like agreement from any person or entity who becomes an affiliate
after the River Bend Shareholders' Meeting but prior to the
Effective Time.
- 18 -
23
ARTICLE VI
RIVER BEND'S COVENANTS AND AGREEMENTS
-------------------------------------
Except as specifically contemplated or permitted by this
Agreement, River Bend hereby agrees, between the date hereof and
the Effective Time, as follows:
6.01 Operation of Business. Between the date hereof and
---------------------
the Effective Time, subject to all applicable laws, it will operate
its business (and will cause the River Bend Subsidiaries to operate
their businesses) solely in the ordinary course consistent with
past practices, and without the prior written consent of Magna, it
(and the River Bend Subsidiaries) will not:
(a) Incur any material liabilities or material
obligations, whether directly or by way of guaranty, including any
obligation for borrowed money whether or not evidenced by a note,
bond, debenture or similar instrument, except in the ordinary
course of business consistent with past practice, except for a
payment of $260,500 to Xxxxxx & Associates, Inc. Notwithstanding
the foregoing, River Bend may, with the prior written consent of
Magna, terminate the Illinois State Bank of East Xxxxx Defined
Benefit Plan and Trust, Plan No. 001.
(b) Grant any increase in the rate of pay of any of its
employees, nor grant any increase in the salaries of any officer,
employee or agent, nor enter into any bonus, profit-sharing,
incentive compensation payment, pension, retirement, medical,
hospitalization, life insurance or other insurance plan or plans,
or other contracts or commitments, which increase(s) in any amount
the benefits or compensation of any such officer, employee or
agent; except, however, in each such case ordinary increases not
unusual in character or amount made in the ordinary course of
business. Notwithstanding the foregoing, River Bend may pay
bonuses to its employees that are consistent with past practice
and, in the aggregate, do not exceed $150,000.
(c) Enter into any employment contract or collective
bargaining agreement, or employ, directly or indirectly, any broker
or finder or incur any liability for any financial advisor, broker
or finder fees or commissions in connection with this Agreement or
the transactions contemplated hereby, or with respect to any
merger, business combination, sale of assets or securities or
similar transactions.
(d) Declare or pay any dividend or make any sale of, or
distribution in respect of, or grant any options or rights with
respect to, its capital stock or other securities or directly or
indirectly redeem, purchase or otherwise acquire any of its capital
stock or other securities, except for the payment of dividends by
the River Bend Subsidiaries to River Bend; provided, however, River
Bend may pay a dividend, to the extent not previously paid, of
$0.09 per share for each of the fourth quarter of 1995 and the
first and second quarters of 1996 with respect to each share of
Class I Common Stock and Class II Common Stock; further provided,
the record date for any dividend to be paid pursuant to this
Section 6.01(d) shall be the record date for dividends payable with
respect to shares of Magna Common Stock for the quarter in which
the River Bend dividend is to be paid and no dividend shall be
declared or paid by River Bend for any quarter in which the
shareholders of River Bend would be stockholders of record of Magna
for the purpose of receiving the Magna dividend payment for such
quarter. Notwithstanding the foregoing, River Bend may declare and
pay a dividend of $12.00 per share during the first quarter of 1996
with respect to each share of Preferred Stock.
(e) Make any amendments to or changes in its Articles of
Incorporation or By-laws.
(f) Perform any act, or attempt to do any act, or permit
any act or omission to act, which will cause a breach of any
material contract, commitment or obligation to which it is a party.
- 19 -
24
(g) Subject to advice of counsel with respect to its
fiduciary obligations, encourage, solicit or initiate offers from
or negotiate with, or provide information or assistance to, any
party other than Magna with respect to a merger, sale of assets,
offer to purchase outstanding stock or similar transaction
involving it, the River Bend Stock or its assets; provided,
however, that if it or any of its advisors receives, from time to
time, an inquiry, proposal, plan, offer, bid or contract from any
third party with respect to any of the foregoing, it will promptly
notify Magna, and will promptly furnish Magna with a copy of any
document received or a summary of any other communication with
respect thereto.
(h) Authorize, recommend, propose or announce an
intention to authorize, recommend or propose, or enter into an
agreement with respect to, any merger, consolidation or business
combination, any acquisition of a material amount of assets or
securities or any release or relinquishment of any material
contract rights not in the ordinary course of business other than
as contemplated in this Agreement.
(i) Except in a fiduciary capacity, purchase or sell any
shares of Magna Common Stock.
(j) Agree in writing or otherwise to do any of the
foregoing.
6.02 Preservation of Business. Between the date hereof
------------------------
and the Effective Time, River Bend will carry on its business (and
will cause its Subsidiaries to carry on their businesses)
diligently and substantially in the same manner as heretofore
conducted and shall use its best efforts to keep its business
organization intact, including its present relationships with its
employees and customers and others having business relations with
it.
6.03 Expenses. River Bend shall pay its own expenses
--------
incident to preparing for, entering into and carrying out this
Agreement and to the consummation of the Merger, including the fee
of Xxxxxx & Associates, Inc. as provided in Section 6.01(a).
6.04 Tax Opinion Certification. River Bend shall cause
-------------------------
such of its executive officers, directors and/or holders of shares
of River Bend Stock (including shares beneficially held) as may be
requested by Xxxxxxxx & Xxxxxxxx to timely execute and deliver to
Xxxxxxxx & Xxxxxxxx certificates substantially in the form of
Exhibits C or D hereto, as the case may be.
6.05 Sale of Magna Common Stock by Shareholders of River
---------------------------------------------------
Bend. River Bend will notify its shareholders that after the date
----
hereof and prior to the Effective Time that they shall not sell any
shares of Magna Common Stock. The opinion of Xxxxxxxx & Xxxxxxxx
contemplated under Section 5.05 hereof is dependent upon no such
sale having been made and if any such sale has been made such
opinion may not be relied upon for any purpose, unless it has been
amended and reissued to reflect any such sale.
6.06 Purchase Options for River Bend Stock. Each of
-------------------------------------
River Bend and Xxxx X. Xxxxxxxx, Xx. hereby agree to waive any
purchase option it or he may have with respect to shares of River
Bend Stock by way of:
(i) that certain Stock Purchase Agreement dated
August 12, 1985 by and between River Bend and Xxxxxxxx;
(ii) those certain Shareholder Agreements dated
April 20, 1994 by and among River Bend, Xxxxxxxx and each
of Xxxx X. Xxxxxxxxx and Xxxx X. Xxxx;
(iii) those certain Shareholder Agreements dated
April 29, 1994 by and among River Bend, Xxxxxxxx and each
of Xxxxxx X. Xxxxxxx, Xxxxx X. or Xxxx Xxxxx
- 20 -
25
Xxxxxx, Xxxxxxxx X. Xxxxxxxxxxx, Xxxxxxx X. Xxxxxxxxx,
Xxxxxx X. Xxxxxx, Xxxxx X. Xxxxxxx, and Xxxx X. Xxxxxxxx,
Xx.;
(iv) that certain Shareholder Agreement dated May 2,
1995 by and among River Bend, Xxxxxxxx and Xxxxxx X.
Xxxxxxx.
(v) that certain Shareholder Agreement dated May 6,
1994 by and among River Bend, Xxxxxxxx and Xxxxxx X.
Ryrie;
(vi) that certain Shareholder Agreement dated May 9,
1994 by and among River Bend, Xxxxxxxx and Xxxx X.
Xxxxxx;
(vii) that certain Shareholder Agreement dated
June 17, 1994 by and among River Bend, Xxxxxxxx and
Xxxxxx X. Xxxxxx;
(viii) that certain Shareholder Agreement dated
November 2, 1994 by and among River Bend, Xxxxxxxx and
Xxxxxx X. Xxxxx;
(ix) those certain Revised Stock Purchase Agreements
dated April 25, 1994 by and between River Bend and each
of Xxxxx X. Xxxxxxx, Xxxxxxxx Construction Company,
Xxxxxxx X. Xxxxxxxx Retained Annuity Trust Number One,
Xxxx X. Xxxxxxxx III Trust Number Two, Xxxx Xxxxxxxx
Trust Number Two, Xxxxxxx Xxxxxxxx Non-Qtip Trust B, U/A
dated October 2, 1980 and Xxxxxx Xxxxxxxx Trust Number
Two;
(x) that certain Revised Stock Purchase Agreement
dated April 26, 1994 by and between River Bend and Xxxx
X. Xxxxxxxx III Trust;
(xi) that certain Revised Stock Purchase Agreement
dated April 30, 1994 by and between River Bend and each
of Xxxx X. Xxxxxx and Xxxxxxx Xxxxxx;
(xii) those certain Revised Stock Purchase
Agreements dated May 2, 1994 by and between River Bend
and each of Xxxx Xxxxxxx Xxxxxx Trust, Xxxxxxx Xxxxxxx
Trust, Xxxxxxxx Xxxxxxx Trust, Xxxxxxx Xxxxxxx Trust and
Xxxxxx X. Xxxx;
(xiii) that certain Revised Stock Purchase
Agreement dated May 23, 1994 by and between River Bend
and Xxxxx X. Xxxx; and
(xiv) those certain Revised Stock Purchase
Agreements dated May 26, 1994 by and between River Bend
and each of Xxxx Xxxxxxxx Trust and Xxxxx X. Xxxx
Revocable Trust dated February 3, 1992.
ARTICLE VII
MUTUAL COVENANTS AND AGREEMENTS
-------------------------------
Except as specifically contemplated or permitted by this
Agreement, Magna and River Bend each hereby agree as follows:
7.01 Access and Information. Magna and River Bend shall
----------------------
afford to each other, and their respective accountants, counsel and
other representatives, reasonable access during normal business
hours, during the period prior to the Effective Time, to their
properties, books, contracts, commitments and records and, during
such period, they shall furnish promptly, or make available to the
other (a) a copy of each material report, schedule and other
document filed or received by them
- 21 -
26
during such period pursuant to the requirements of federal and state
securities laws, and (b) all other information concerning their
business, properties and personnel as the other party may reasonably
request. Each party shall cause all information obtained by it or its
representatives pursuant to this Agreement or in connection with the
negotiation hereof to be treated as confidential and shall not use,
nor knowingly permit others to use, any such information for their own
benefit unless such information becomes generally available to the
public and, in the event of the termination of this Agreement, each
party shall return or destroy all such confidential documents
(including copies thereof) obtained hereunder from the other.
7.02 Current Information. During the period from the
-------------------
date of this Agreement to the Effective Time, each party will cause
one or more of its representatives to confer on a regular and
frequent basis with representatives of the other party, to report
the general status of its ongoing operations, and to consult as to
the making of any decisions or the taking of actions in matters
other than in the ordinary course of business. Each of Magna and
River Bend shall promptly notify the other of (a) any material
change in the normal course of its business or in the operation of
its properties, (b) any material governmental complaints,
investigations or hearings (or communications indicating that the
same may be contemplated), or the institution or the threat of
material litigation, and (c) any impending or threatened occurrence
of any event of which it has knowledge and which would cause or
constitute a breach of any of its representations or warranties
contained or referred to in this Agreement, and each will use their
best efforts to keep the other fully informed with respect to such
events.
7.03 Press Releases. Magna and River Bend will consult
--------------
with each other as to the form and substance of any press release
or other public disclosure of matters relating to this Agreement or
any of the transactions contemplated hereby and will not issue any
such release or disclosure unless approved by the other, which
approval shall not be unreasonably withheld, except as otherwise
required by law or regulation in the opinion of its counsel.
7.04 Intracorporate Transactions. Notwithstanding any
---------------------------
other provision of this Agreement, no merger or other business
combination, transfer of assets, liabilities or stock ownership
(a) between or among Magna and any of its Subsidiaries or between
or among any Magna Subsidiaries shall be deemed to violate any of
Magna's representations or agreements set out in Article II or VII
hereof, and (b) between or among River Bend and any River Bend
Subsidiaries or between or among any River Bend Subsidiaries shall
be deemed to violate (i) any of River Bend's representations set
out in Article III hereof, or (ii) any of River Bend's agreements
set out in Article VI or VII hereof.
7.05 Representations. Neither Magna nor River Bend will
---------------
take any action which would result in the representations in this
Agreement being incorrect as of the Effective Time.
7.06 Anti-Dilution.
-------------
(a) The shares of River Bend Stock presently
outstanding, and only such shares, shall be converted into the
right to receive the Merger Consideration, as provided in this
Agreement. River Bend shall not, without the prior written consent
of Magna, effect any stock dividends, split-ups, recapitalizations
or the like. River Bend shall not, without the prior written
consent of Magna, issue, exchange or otherwise effect any change in
its capitalization prior to the Effective Time.
(b) In the event of changes in the Magna Common Stock by
virtue of stock dividends, split-ups, recapitalizations or the
like, the type and number of Magna Shares to be exchanged shall be
adjusted appropriately.
7.07 Tax Treatment. Magna and River Bend agree to use
-------------
their best efforts to cause the Merger to qualify as a
reorganization under Section 368 of the Code.
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27
7.08 System Conversion. From and after the date hereof,
-----------------
representatives of Magna, River Bend and the River Bend
Subsidiaries shall meet on a regular basis to discuss and plan for
the conversion of River Bend's data processing and related
electronic informational systems to those used by Magna, which
planning shall include, but not be limited to, discussion of the
possible termination by River Bend and the River Bend Subsidiaries
of third-party service provider arrangements effective at the
Closing Date or at a date thereafter, non-renewal of personal
property leases and software licenses used by River Bend and the
River Bend Subsidiaries in connection with it systems operations
and outsourcing, as appropriate, of proprietary or self-provided
system services, it being understood that River Bend and the River
Bend Subsidiaries shall not be obligated to take any such action
and, unless River Bend otherwise agrees, no conversion shall in
fact take place prior to the Closing Date.
7.09 Miscellaneous Agreements and Consents. Subject to
-------------------------------------
the terms and conditions herein provided, the parties hereto agree
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
including, without limitation, using reasonable efforts to lift or
rescind any injunction or restraining order or other order
adversely affecting the ability of the parties to consummate the
transactions contemplated hereby, and using their best efforts to
prevent the breach of any representation, warranty or agreement
contained or referred to in this Agreement and to remedy the same
promptly. The parties hereto will, and will cause their
subsidiaries to, use their best efforts to obtain the consents of
all third parties and governmental bodies necessary or desirable
for the consummation of the transactions contemplated by this
Agreement.
7.10 Notice to Other Party. Each of Magna and River Bend
---------------------
shall notify the other party hereto of (i) any fact or
circumstances of which the executive officers of either Magna or
River Bend, as the case may be, have knowledge which would, absent
disclosure by Magna or River Bend to River Bend or Magna, as the
case may be, and Magna's or River Bend's, as the case may be,
subsequent consent to such facts or circumstances, not permit River
Bend to satisfy the condition set forth in Section 8.03(b) of this
Agreement or Magna to satisfy the condition set forth in Section
8.02(a) of this Agreement, (ii) any material breach of any of its
covenants contained herein, and (iii) any material adverse change
in its financial condition, business, prospects or operating
results.
7.11 Best Efforts. Each of the parties hereto shall use
------------
its best efforts to assure, to the extent reasonably within its
control, as soon as it is reasonably practicable, the satisfaction
of the conditions to the effectiveness of the transactions
contemplated under Section 1.01 hereof and the transactions
contemplated by this Agreement.
7.12 Payments to Dissenters. Upon consummation of the
----------------------
Merger, RBAC shall pay or provide for any payment (with funds
provided by Magna) for any shareholder dissenting from the Merger.
7.13 Schedules and Exhibits. The parties hereto
----------------------
acknowledge that the schedules of River Bend and Exhibits C and D,
----------------
all of which are referenced herein, are not incorporated in this
Agreement as of the date hereof. River Bend, within ten days after
the date hereof, shall provide to Magna all schedules that River
Bend was required to deliver pursuant to this Agreement. The
obligations on the part of Magna under this Agreement are expressly
conditioned on, and subject to, acceptance by Magna, within five
days after the receipt thereof, of the form and/or substance of the
schedules of River Bend, in each case, in the sole discretion of
Magna. During the period commencing on the date hereof and ending
10 days hereafter, Magna and River Bend shall use their reasonable
best efforts to agree to the form and the substance of the
documents to be incorporated herein as Exhibits C and D. In the
event Magna and River Bend are unable to agree as to such exhibits,
this Agreement shall terminate without any further obligation or
liability on the part of either Magna or River Bend, subject to the
provisions of Section 10.01 hereof.
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28
ARTICLE VIII
CONDITIONS TO CLOSING
---------------------
The obligations of River Bend and Magna under this
Agreement, except as otherwise provided herein, shall be subject to
the satisfaction or waiver of the following conditions on or prior
to the Closing:
8.01 Conditions to Each Party's Obligations to Effect the
----------------------------------------------------
Merger. The respective obligations of each party to effect the
------
Merger shall be subject to the following conditions:
(a) Shareholder Approval. The Plan of Merger shall have
--------------------
been approved by the requisite vote of the holders of the
outstanding shares of River Bend Stock at the River Bend
Shareholders' Meeting called pursuant to Section 5.02.
(b) Regulatory Approvals. The transactions contemplated
--------------------
by this Agreement shall have been approved by the Federal Reserve
Board, the Illinois Commissioner and any other required banking
authorities, without any condition or requirement which would have
a material adverse effect on the business, operations, properties,
assets or financial condition of Magna or River Bend, all
conditions required to be satisfied shall have been satisfied, and
all waiting periods relating to such approvals shall have expired.
(c) Absence of Injunction. Neither River Bend nor Magna
---------------------
shall be subject to any order, decree or injunction of a court or
agency of competent jurisdiction which enjoins or prohibits the
consummation of the Merger.
(d) Registration Statement. The Registration Statement
----------------------
shall have been declared effective and shall not be subject to a
stop order or any threatened stop order, and all state securities
and blue sky permits or approvals required to consummate the
transactions contemplated by this Agreement shall have been
received.
(e) Tax Opinion. River Bend and Magna shall have
-----------
received the opinion of Xxxxxxxx & Xxxxxxxx as specified in Section
5.05 hereof.
8.02 Conditions to Obligations of River Bend to Effect
-------------------------------------------------
the Merger. The obligations of River Bend to effect the Merger
----------
shall be subject to the following additional conditions:
(a) Representations and Warranties. The representations
------------------------------
and warranties of Magna set forth in this Agreement shall be true
and correct in all material respects as of the date of this
Agreement and as of the Closing as though made at and as of the
Closing, except as otherwise contemplated by this Agreement or
consented to in writing by River Bend, and River Bend shall have
received a signed certificate of an officer of Magna, acting solely
in their capacity as an officer of Magna, to that effect.
(b) Performance of Obligations. Magna shall have
--------------------------
performed in all material respects all obligations required to be
performed by it under this Agreement prior to the Closing, and
River Bend shall have received a signed certificate of an officer
of Magna, acting solely in their capacity as an officer of Magna,
to that effect.
(c) Permits, Authorizations, Etc. Magna and the Magna
-----------------------------
Subsidiaries shall have obtained any and all material permits,
authorizations, consents, waivers, clearances or approvals required
on their part for the lawful consummation of the Merger (in
addition to those referred to in Section 8.01(b) hereof), without
any condition which would have a material adverse effect on the
business, operations, properties, assets or financial condition of
Magna after the Effective Time, all
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29
conditions imposed by the terms of such approvals shall have been
satisfied and all waiting periods relating to such permits,
authorizations, consents, waivers, clearances or approvals shall have
expired.
(d) Legal Opinion. An opinion of Xxxxxxxx & Xxxxxxxx
-------------
shall be delivered to River Bend dated the Closing Date, and in
form and substance reasonably satisfactory to River Bend and its
counsel to the effect that:
(i) Magna is a corporation duly incorporated,
validly existing and in good standing under the laws of
the State of Delaware, and has full power to own and
operate its businesses and properties and to carry on its
business as presently conducted by it;
(ii) RBAC is a corporation duly incorporated,
validly existing and in good standing under the laws of
the State of Illinois, and has full power to own and
operate its businesses and properties and to carry on its
business as presently conducted by it;
(iii) the authorized capital stock of Magna
consists of (a) 40,000,000 shares of Magna Common Stock,
of which at September 30, 1995, 27,881,344 of such shares
were issued and outstanding; (b) 1,000,000 shares of
Preferred Stock, no par value per share, of which at such
date no shares were issued or outstanding and of which at
September 30, 1995, 400,000 shares have been designated
by Magna's Board of Directors as the Series A Junior
Participating Preferred Stock (the "Magna Series A
Preferred Stock"); (c) 49,500 shares of preferred stock,
$20.00 par value per share, designated Class B Voting
Stock, of which, as of September 30, 1995, 2,037 shares
were issued and outstanding; and (d) 1,000,000 shares of
preferred stock, $0.10 par value per share, designated
Class C Nonvoting Stock, of which, as of September 30,
1995, no shares were issued and outstanding. To such
counsel's knowledge, all of the outstanding stock is
validly issued, fully paid and nonassessable;
(iv) Magna has full power and authority to make,
execute and deliver this Agreement, it has been duly
authorized and approved by all necessary corporate action
of Magna and has been duly executed and delivered and is
its valid and binding obligations subject, however, to
bankruptcy, insolvency and similar laws affecting the
enforcement of creditors' rights generally and to the
availability of equitable remedies in general;
(v) RBAC has full power and authority to make,
execute and deliver the Plan of Merger, which has been
duly authorized and approved by all necessary corporate
action of RBAC and has been duly executed and delivered
and is its valid and binding obligation subject, however,
to bankruptcy, insolvency and similar laws affecting the
enforcement of creditor's rights generally and to the
availability of equitable remedies in general;
(vi) The transactions contemplated by this Agreement
or the Plan of Merger will not violate the Certificate of
Incorporation or Bylaws of Magna or the Articles of
Incorporation or Bylaws of RBAC;
(vii) The meeting of the Board of Directors of
Magna authorizing this Agreement was duly called and
validly held and the resolutions there adopted are in
full force and effect and have not been amended or
repealed; and
(viii) To such counsel's knowledge, there is no
litigation or proceeding pending or threatened against
Magna or any of the Magna Subsidiaries relating to the
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30
participation in or consummation of this Agreement by
Magna or any of the Magna Subsidiaries.
In rendering the foregoing opinion such counsel may rely
on certificates of corporate officers or governmental officials as
to factual matters.
(e) Supplemental Document. Magna shall have executed
---------------------
and delivered the Supplemental Agreement by and between Magna and
Xxxx X. Xxxxxxxx, which is attached hereto as Exhibit E.
8.03 Conditions to Obligations of Magna to Effect the
------------------------------------------------
Merger. The obligations of Magna to effect the Merger shall be
------
subject to the following additional conditions:
(a) Due Diligence. Magna shall be satisfied, in its
-------------
sole discretion, with its due diligence examination of the
financial condition, results of operations and review of the
assets, books and records of River Bend and the River Bend
Subsidiaries and shall not have notified River Bend of its
dissatisfaction on or before a period ending 45 days after the date
hereof (the "Due Diligence Period"). River Bend shall have thirty
days after the date of receipt of Magna's notification of
dissatisfaction to remedy, in Magna's sole judgment, the cause of
such dissatisfaction. In the event Magna concludes its due
diligence examination sooner than 45 days after the date hereof,
Magna shall notify River Bend of the results of its due diligence
examination and, if Magna, in its sole discretion, is satisfied
with the results of its due diligence examination, the Due
Diligence Period shall end on such earlier date.
(b) Representations and Warranties. The representations
------------------------------
and warranties of River Bend set forth in this Agreement shall be
true and correct in all material respects as of the date of this
Agreement and as of the Closing as though made at and as of the
Closing, except as otherwise contemplated by this Agreement or
consented to in writing by Magna, and Magna shall have received a
signed certificate of the Chairman or President of River Bend,
acting solely in their capacity as an officer of River Bend, to
that effect. Magna may perform from time to time a review of the
assets and liabilities of River Bend prior to the Effective Time.
(c) Performance of Obligations. River Bend shall have
--------------------------
performed in all material respects all obligations required to be
performed by it under this Agreement prior to the Closing, and
Magna shall have received a signed certificate of the Chairman or
President of River Bend, acting solely in their capacity as an
officer of River Bend, to that effect.
(d) Permits, Authorizations, Etc. River Bend and the
-----------------------------
River Bend Subsidiaries shall have obtained any and all material
permits, authorizations, consents, waivers, clearances or approvals
required on their part for the lawful consummation of the Merger
(in addition to those referred to in Section 8.01(b) hereof),
without any condition which would have a material adverse effect on
the business, operations, properties, assets or financial condition
of Magna after the Effective Time, all conditions imposed by the
terms of such approvals shall have been satisfied and all waiting
periods relating to such permits, authorizations, consents,
waivers, clearances or approvals shall have expired.
(e) Legal Opinion. An opinion of Suelthaus & Xxxxx
-------------
shall be delivered to Magna dated the Closing Date, and in form and
substance reasonably satisfactory to Magna and its counsel to the
effect that:
(i) River Bend is a corporation duly incorporated,
validly existing and in good standing under the laws of
the State of Illinois, and has full power to own and
operate its businesses and properties and to carry on its
business as presently conducted by it;
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31
(ii) The authorized capital stock of River Bend
consists of (i) 200,000 shares of Class I Common Stock,
of which, as of the date hereof, 157,063 shares were
issued and outstanding, (ii) 1,000,000 shares of Class II
Common Stock, of which, as of the date hereof, 785,315
shares were issued and outstanding, and (iii) 10,000
shares of Preferred Stock, of which, as of the date
hereof, 5,991 shares were issued and outstanding. To
such counsel's knowledge, all of such outstanding stock
is validly issued, fully paid and nonassessable;
(iii) Each of the River Bend Subsidiaries is
duly incorporated, validly existing and in good standing
under the laws of its state or jurisdiction of
incorporation;
(iv) To such counsel's knowledge, River Bend is the
lawful owner of 100% of the outstanding stock of each of
the River Bend Subsidiaries, subject to the lien set
forth on Schedule 3.02 of the Agreement;
-------------
(v) River Bend has full power and authority to
make, execute and deliver this Agreement and the Plan of
Merger and they have been duly authorized and approved by
all necessary corporate action of River Bend and have
been duly executed and delivered and are its valid and
binding obligations subject, however, to bankruptcy,
insolvency and similar laws affecting the enforcement of
creditors' rights generally and to the availability of
equitable remedies in general;
(vi) The transactions contemplated by this Agreement
will not violate the Articles of Incorporation or Bylaws
of River Bend or any agreement to which River Bend and
any of its shareholders are a party;
(vii) The meetings of the Board of Directors of
River Bend authorizing this Agreement and the Plan of
Merger and calling the River Bend Shareholders' Meeting,
and the River Bend Shareholders' Meeting where this
Agreement and the Plan of Merger were submitted, were
duly called and validly held and the resolutions there
adopted are in full force and effect and have not been
amended or repealed; and
(viii) To such counsel's knowledge, there is no
litigation or proceeding pending or threatened against
River Bend or any of the River Bend Subsidiaries relating
to the participation in or consummation of this Agreement
by River Bend or any of the River Bend Subsidiaries.
(ix) To such counsel's knowledge, there are no
persons or entities who may be deemed to be affiliates of
River Bend for purposes of Rule 145 under the Securities
Act, who may receive shares of Magna Common Stock in the
Merger and who are not named in the letter delivered by
River Bend to Magna pursuant to Section 5.06 of the
Agreement.
In rendering the foregoing opinion such counsel may rely
on certificates of corporate officers or governmental officials as
to factual matters.
(f) Dissenters. Holders of less than nine percent (9%)
----------
of the River Bend Stock shall have taken such steps as are then
possible to dissent from the Merger.
(g) Affiliate Documents. River Bend shall have
-------------------
delivered to Magna those documents required pursuant to Section
5.06.
(h) List of Shareholders. River Bend shall have
--------------------
delivered to Magna a certified list of the shareholders of River
Bend, dated as of the Closing Date, that, with respect to each
outstanding
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32
Certificate, includes (i) the name of the holder(s) as it appears on
the Certificate, (ii) the number of shares of capital stock
represented by the Certificate and (iii) the address of the holder(s)
of the Certificate.
(i) Supplemental Document. Xx. Xxxx X. Xxxxxxxx shall
---------------------
have executed and delivered to Magna the Supplemental Agreement
attached hereto as Exhibits E and Xx. Xxxxxxxx shall have executed
an Indemnity Agreement, in form reasonably satisfactory to Magna,
as contemplated by Section 1.02(a)(iii) hereof.
ARTICLE IX
TERMINATION, AMENDMENT AND WAIVER
---------------------------------
9.01 Termination. This Agreement may be terminated at
-----------
any time prior to the Effective Time either before or after it has
been approved by the shareholders of River Bend:
(a) By mutual consent of the Boards of Directors of
River Bend and Magna;
(b) By the Board of Directors of either River Bend or
Magna at any time on or after June 30, 1996, if the Merger shall
not theretofore have been consummated, for a reason other than the
failure of the terminating party to comply with its obligations
under this Agreement;
(c) By the Board of Directors of either River Bend or
Magna if the Federal Reserve Board or the Illinois Commissioner has
denied approval of the Merger and such denial has become final and
nonappealable;
(d) By the Board of Directors of either River Bend or
Magna in the event of a material breach by the other party of any
representation, warranty or agreement contained herein, which
breach is not cured within 60 days after written notice to the
party committing such breach;
(e) By the Board of Directors of Magna, if at the River
Bend Shareholders' Meeting (including any adjournment thereof) the
shareholders of River Bend fail to approve the Plan of Merger; or
(f) By the Board of Directors of Magna, if the Board of
Directors of River Bend shall have (i) approved the execution of a
definitive agreement with respect to a merger, consolidation,
tender or exchange offer or other business combination with a third
party, (ii) withdrawn or modified in a manner adverse to Magna its
approval or recommendation of this Agreement or the Plan of Merger
as set forth in Section 5.02 of this Agreement, (iii) breached its
obligation to mail the Proxy Statement to its shareholders or
failed to include in such Proxy Statement the recommendation that
the shareholders of River Bend vote to approve the Plan of Merger,
(iv) taken any public position inconsistent with such
recommendation; or (v) resolved to do any of the foregoing.
(g) By the Board of Directors of River Bend, if the
Board of Directors of Magna shall have approved the execution of a
definitive agreement with respect to a merger, consolidation,
tender or exchange offer or other business combination with a third
party whereby the third party is acquiring control of Magna and in
connection with which Magna refuses, in violation of the terms of
this Agreement, to consummate the Merger.
(h) By the Board of Directors of Magna at any time on or
after the last day of the period ending 30 days after the end of
the Due Diligence Period if (1) Magna shall have notified River
Bend during the Due Diligence Period of its dissatisfaction with
the results of its due diligence examination and (2) by the end of
the period ending 30 days after the end of the Due Diligence
Period, River Bend shall have failed, in Magna's sole judgment, to
remedy or correct the cause of Magna's dissatisfaction.
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33
(i) By the Board of Directors of Magna, in its sole
discretion, at any time during the period ending five days after
the delivery by River Bend of the disclosure schedules referred to
in Section 7.13 hereof.
9.02 Effect of Termination. In the event of termination
---------------------
of this Agreement by either River Bend or Magna as provided in
Section 9.01 hereof, such party shall promptly give written notice
of such action to the other party. Upon receipt of such notice,
this Agreement shall become void and there shall be no liability on
the part of either River Bend or Magna or their respective officers
or directors and there shall be no obligations except as set forth
in Section 10.01 hereof. In the event of a termination as provided
in Section 9.01(f), Magna shall promptly be paid the sum of
$1,000,000 by River Bend. In the event of a termination as
provided in Section 9.01(g), River Bend shall promptly be paid the
sum of $1,000,000 by Magna.
9.03 Amendment. This Agreement and the Exhibits and
---------
Schedules hereto may be amended by the parties hereto, by action
taken by or on behalf of their respective Boards of Directors, at
any time before or after approval of the Merger by the shareholders
of River Bend; provided, however, that after any such approval no
such amendment shall reduce the amount or change the form of the
Merger Consideration to be delivered to River Bend's shareholders
as contemplated by this Agreement. This Agreement may not be
amended except by an instrument in writing signed on behalf of each
of the parties hereto.
9.04 Waiver. Any terms, condition or provision of this
------
Agreement may be waived in writing at any time by the party which
is, or whose shareholders are, entitled to the benefits thereof.
ARTICLE X
GENERAL PROVISIONS
------------------
10.01 Non-Survival of Representations, Warranties and
-----------------------------------------------
Agreements. No investigation by the parties hereto made heretofore
----------
or hereafter shall affect the representations and warranties of the
parties which are contained herein and each such representation and
warranty shall survive such investigation. Except as set forth
below in this Section 10.01, all representations, warranties and
agreements in this Agreement of River Bend and Magna or in any
instrument delivered by River Bend or Magna pursuant to this
Agreement shall expire at the Effective Time or upon termination of
this Agreement in accordance with its terms. Notwithstanding the
foregoing, in the event of termination of this Agreement in
accordance with its terms, the agreements contained in or referred
to in the second sentence of Section 7.01, in Sections 6.03 and
9.02 and in this Section 10.01 shall survive such termination and,
if the Merger is consummated, the agreements contained in Sections
1.02, 1.03, 1.04, 1.05, 1.06 and 5.04 hereof shall survive the
Effective Time.
10.02 Notices. Any notice or other communication
-------
hereunder shall be in writing and shall be deemed to have been
given and duly received (i) on the date given if delivered
personally or by cable, telegram, telex or telecopy, or (ii) on the
date received if mailed by registered or certified mail, postage
prepaid and return receipt requested, addressed to the parties as
follows:
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34
(a) if to River Bend: Xxxx X. Xxxxxxxx, President
River Bend Bancshares, Inc.
Main and West St. Louis Avenue
P.O. Drawer 000
Xxxx Xxxxx, Xxxxxxxx 00000
with a copy to: Xxxxxxx X. Xxxxxxxxx
Suelthaus & Xxxxx, P.C.
0000 Xxxxxxx, 00xx Xxxxx
Xx. Xxxxx, Xxxxxxxx 00000
(b) if to Magna: G. Xxxxxx Xxxxx, Chairman
Magna Group, Inc.
One Magna Place
0000 Xxxxx Xxxxxxxxx Xxxx.
Xx. Xxxxx, Xxxxxxxx 00000
with a copy to: Xxxxxx X. Xxxxxxx, Xx.
Xxxxxxxx & Xxxxxxxx
Xxx Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xx. Xxxxx, Xxxxxxxx 00000
or to such other address as any party may from time to time
designate by notice to the others. Notice to a party's counsel
shall not be deemed to constitute notice to such party pursuant to
this Section 10.02.
10.03 Entire Agreement; Enforcement. This Agreement
-----------------------------
(including the Exhibits, Schedules and documents and instruments
referred to herein) constitutes the entire agreement between the
parties and supersedes and cancels any prior discussions or
agreements, oral or written. The failure of any party at any time
to require performance of any provision hereof shall not affect the
right of such party to enforce the same at any later time.
10.04 Counterparts. This Agreement may be executed
------------
in two or more counterparts, each of which shall be deemed an
original, and all of which shall be deemed one and the same
instrument.
10.05 Governing Law. This Agreement shall be
-------------
governed by the internal laws of the State of Illinois (excluding
its conflict of law rules) and any applicable federal laws or
regulations.
10.06 Successors and Assigns. This Agreement shall
----------------------
be binding upon and shall inure to the benefit of the parties and
their respective successors and permitted assigns. Neither this
Agreement nor any rights hereunder may be assigned by either party
without the prior written consent of the other, whether by
operation of law or otherwise.
10.07 No Third Party Beneficiaries. Except to the
----------------------------
extent of Sections 1.02, 1.03, 1.04, 1.05 and 5.04, no provision of
this Agreement shall create any third party beneficiary rights in
any person.
10.08 Table of Contents; Captions. The Table of
---------------------------
Contents and captions contained herein are included for convenience
of reference only and shall be ignored in the construction or
interpretation of this Agreement.
- 30 -
35
IN WITNESS WHEREOF, the parties hereto have duly executed
this Agreement as of the day and year first above written.
RIVER BEND BANCSHARES, INC.
By /s/ Xxxx X. Xxxxxxxx, Xx.
-----------------------------------------
Xxxx X. Xxxxxxxx, Xx., President
MAGNA GROUP, INC.
By /s/ G. Xxxxxx Xxxxx
-----------------------------------------
G. Xxxxxx Xxxxx, Chairman of the Board
The undersigned, by execution of this signature page,
agrees to the terms and conditions contained in Sections 1.02(a)(iii)
and 6.06 of this Agreement.
/s/ Xxxx X. Xxxxxxxx, Xx.
------------------------------------------
Xxxx X. Xxxxxxxx, Xx.
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