AGREEMENT AND PLAN OF MERGER BY AND BETWEEN NORTHWEST BANCSHARES, INC. AND MUTUALFIRST FINANCIAL, INC. OCTOBER 29, 2019
AGREEMENT AND PLAN OF MERGER
BY AND BETWEEN
NORTHWEST BANCSHARES, INC.
AND
MUTUALFIRST FINANCIAL, INC.
OCTOBER 29, 2019
TABLE OF CONTENTS
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ARTICLE I CERTAIN DEFINITIONS
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2
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1.1.
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Certain Definitions.
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2
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ARTICLE II THE MERGER
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10
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2.1.
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Merger.
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10
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2.2.
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Closing; Effective Time.
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10
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2.3.
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Articles of Incorporation and Bylaws.
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10
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2.4.
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Directors and Officers of Surviving Company.
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10
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2.5.
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Additional Director.
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11
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2.6.
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Tax Consequences.
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11
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2.7.
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Possible Alternative Structures.
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11
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2.8.
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Additional Actions.
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11
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2.9.
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Bank Merger.
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12
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ARTICLE III CONVERSION OF SHARES
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12
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3.1.
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Conversion of MutualFirst Financial Common Stock; Merger Consideration.
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12
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3.2.
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No Fractional Shares.
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13
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3.3.
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Procedures for Exchange of MutualFirst Financial Common Stock.
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13
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3.4.
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Reservation of Shares.
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15
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3.5.
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Treatment of MutualFirst Financial Stock Options.
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15
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ARTICLE IV REPRESENTATIONS AND WARRANTIES OF MUTUALFIRST FINANCIAL
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16
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4.1.
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Standard.
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16
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4.2.
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Organization.
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16
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4.3.
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Capitalization.
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17
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4.4.
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Authority; No Violation.
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18
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4.5.
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Consents.
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20
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4.6.
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Financial Statements; Reports.
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20
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4.7.
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Taxes.
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22
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4.8.
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No Material Adverse Effect.
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23
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4.9.
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Material Contracts; Leases; Defaults.
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23
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4.10.
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Ownership of Property; Insurance Coverage.
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25
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4.11.
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Legal Proceedings.
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26
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4.12.
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Compliance With Applicable Law.
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26
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4.13.
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Employee Benefit Plans.
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27
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4.14.
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Brokers, Finders and Financial Advisors.
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31
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4.15.
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Environmental Matters.
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31
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4.16.
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Loan Portfolio and Investment Securities.
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32
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4.17.
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Other Documents.
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33
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4.18.
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Related Party Transactions.
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34
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4.19.
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Deposits.
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34
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4.20.
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Antitakeover Provisions Inapplicable; Required Vote.
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34
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4.21.
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Registration Obligations.
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34
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4.22.
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Risk Management Instruments.
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34
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4.23.
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Intellectual Property; IT Systems.
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35
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4.24.
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Trust Accounts.
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36
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4.25.
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Labor Matters.
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36
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(i)
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ARTICLE V REPRESENTATIONS AND WARRANTIES OF NORTHWEST BANCSHARES
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37
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5.1.
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Standard.
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37
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5.2.
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Organization.
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37
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5.3.
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Capitalization.
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38
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5.4.
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Authority; No Violation.
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39
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5.5.
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Consents.
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40
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5.6.
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Financial Statements; Reports.
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40
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5.7.
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Taxes.
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42
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5.8.
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No Material Adverse Effect.
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43
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5.9.
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Ownership of Property; Insurance Coverage.
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43
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5.10.
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Legal Proceedings.
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44
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5.11.
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Compliance With Applicable Law.
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44
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5.12.
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Employee Benefit Plans.
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45
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5.13.
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Environmental Matters.
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48
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5.14.
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Antitakeover Provisions Inapplicable; Vote Required.
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49
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5.15.
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Risk Management Arrangements.
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49
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5.16.
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Brokers, Finders and Financial Advisors.
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49
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5.17.
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Northwest Bancshares Common Stock.
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49
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5.18.
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Available Funds.
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50
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ARTICLE VI COVENANTS OF MUTUALFIRST FINANCIAL
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51
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6.1.
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Conduct of Business.
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51
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6.2.
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Current Information.
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56
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6.3.
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Access to Properties and Records.
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57
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6.4.
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Financial and Other Statements.
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59
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6.5.
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Maintenance of Insurance.
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59
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6.6.
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Disclosure Supplements.
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59
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6.7.
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Consents and Approvals of Third Parties.
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60
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6.8.
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All Reasonable Efforts.
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60
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6.9.
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Failure to Fulfill Conditions.
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60
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6.10.
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No Solicitation.
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60
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6.11.
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Board of Directors and Committee Meetings.
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63
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6.12.
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MutualFirst Financial 401(k) Plan.
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64
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6.13.
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Trust Preferred Securities.
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64
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6.14.
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Rule 16b-3.
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65
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6.15.
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WARN Act Cooperation.
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65
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ARTICLE VII COVENANTS OF NORTHWEST BANCSHARES
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65
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7.1.
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Conduct of Business.
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65
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7.2.
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Disclosure Supplements.
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65
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7.3.
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Consents and Approvals of Third Parties.
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66
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7.4.
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All Reasonable Efforts.
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66
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7.5.
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Failure to Fulfill Conditions.
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66
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7.6.
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Employee Benefits; Advisory Board.
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66
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7.7.
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Directors and Officers Indemnification and Insurance.
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69
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7.8.
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Stock Listing.
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71
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7.9.
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Stock and Cash Reserve.
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71
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(ii)
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7.10.
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Trust Preferred Securities.
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72
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7.11.
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Rule 16b-3.
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72
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7.12.
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WARN Act Compliance.
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72
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ARTICLE VIII REGULATORY AND OTHER MATTERS
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72
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8.1.
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Meeting of MutualFirst Financial Stockholders; Meeting of Northwest Bancshares Stockholders; Proxy Statement-Prospectus; Merger
Registration Statement.
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72
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8.2.
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Regulatory Approvals.
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74
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ARTICLE IX CLOSING CONDITIONS
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75
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9.1.
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Conditions to Each Party’s Obligations under this Agreement.
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75
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9.2.
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Conditions to the Obligations of Northwest Bancshares under this Agreement.
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76
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9.3.
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Conditions to the Obligations of MutualFirst Financial under this Agreement.
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77
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ARTICLE X THE CLOSING
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78
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10.1.
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Time and Place.
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78
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10.2.
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Deliveries at the Pre-Closing and the Closing.
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78
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ARTICLE XI TERMINATION, AMENDMENT AND WAIVER
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79
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11.1.
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Termination.
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79
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11.2.
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Effect of Termination.
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82
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11.3.
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Amendment, Extension and Waiver.
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83
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ARTICLE XII MISCELLANEOUS
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83
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12.1.
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Confidentiality.
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83
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12.2.
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Public Announcements.
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84
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12.3.
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Survival.
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84
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12.4.
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Notices.
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84
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12.5.
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Parties in Interest.
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85
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12.6.
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Complete Agreement.
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85
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12.7.
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Counterparts.
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85
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12.8.
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Severability.
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86
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12.9.
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Governing Law.
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86
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12.10.
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Interpretation.
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86
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12.11.
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Specific Performance.
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86
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12.12.
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Waiver of Jury Trial.
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87
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| Exhibit A |
Form of Voting Agreement
|
(iii)
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER (this “Agreement”), dated as of October 29, 2019, is by and between
Northwest Bancshares, Inc., a Maryland corporation (“Northwest Bancshares”) and MutualFirst Financial, Inc., a Maryland corporation (“MutualFirst Financial”). Each of Northwest Bancshares and MutualFirst Financial is sometimes individually referred
to herein as a “party,” and Northwest Bancshares and MutualFirst Financial are collectively sometimes referred to as the “parties.”
WHEREAS,
Northwest Bancshares owns all the issued and outstanding capital stock of Northwest Bank, a Pennsylvania-chartered stock savings bank with its main office located at 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxx 00000; and
WHEREAS,
MutualFirst Financial owns all the issued and outstanding capital stock of MutualBank, an Indiana-chartered commercial bank with its main office located at 000 X. Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxx 00000; and
WHEREAS,
the Board of Directors of each of Northwest Bancshares and MutualFirst Financial (i) has determined that this Agreement and the business combination and related transactions contemplated hereby are in the best interests of their respective companies
and stockholders, (ii) has determined that this Agreement and the transactions contemplated hereby are consistent with and in furtherance of their respective business strategies, and (iii) has approved this Agreement at meetings of each of such
Boards of Directors; and
WHEREAS, in
accordance with the terms of this Agreement, MutualFirst Financial will merge with and into Northwest Bancshares (the “Merger”), and MutualBank will merge with and into Northwest Bank (the “Bank Merger”); and
WHEREAS,
as a condition to the willingness of Northwest Bancshares to enter into this Agreement, each of the directors and executive officers of MutualFirst
Financial have entered into a Voting Agreement with Northwest Bancshares substantially in the form of Exhibit A hereto, dated as of the date hereof (the “Voting Agreement”), pursuant to which each such director and executive officer has agreed, among
other things, to vote all shares of common stock of MutualFirst Financial owned by such person in favor of the approval of this Agreement and the transactions contemplated hereby, upon the terms and subject to the conditions set forth in such Voting
Agreements; and
WHEREAS,
the parties intend the Merger to qualify as a reorganization within the meaning of Section 368(a) of the Internal Revenue Code of 1986, as amended (the “Code”); and
WHEREAS,
the parties desire to make certain representations, warranties and agreements in connection with the business transactions described in this Agreement and to prescribe certain conditions thereto.
NOW,
THEREFORE, in consideration of the mutual covenants, representations, warranties and agreements herein contained, and of other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1
As used in this Agreement, the following terms have the following meanings (unless the context
otherwise requires, references to Articles and Sections refer to Articles and Sections of this Agreement).
“Affiliate” means any Person who directly, or indirectly, through one or more intermediaries,
controls, or is controlled by, or is under common control with, such Person and, without limiting the generality of the foregoing, includes any executive officer or director of such Person and any Affiliate of such executive officer or director.
“Agreement” means this Agreement and Plan of Merger, and any amendment hereto.
“ASTM” shall have the meaning set forth in Section 6.3.2.
“Bank Merger” means the merger of MutualBank with and into Northwest Bank with Northwest Bank as the
surviving entity. The Bank Merger shall follow the Merger.
“Bank Merger Act” means the Bank Merger Act, within the Federal Deposit Insurance Act and applicable
regulations thereunder.
“Bank Merger Agreement” shall mean the Agreement and Plan of Merger by and between MutualBank and
Northwest Bank.
“Bank Merger Effective Date” means the date that the Articles of Merger evidencing stockholder
approval of the Bank Merger is filed with the Pennsylvania Department of Banking and Securities or such other date as set forth in the Articles of Merger or as determined in accordance with applicable law.
“Bank Regulator” shall mean any Federal or state banking regulator having jurisdiction over the
Parties, including but not limited to the Federal Deposit Insurance Corporation, the Pennsylvania Department of Banking and Securities, the Board of Governors of the Federal Reserve System and the Indiana Department.
“BHCA” means the Bank Holding Company Act of 1956, as amended.
“Burdensome Condition” shall have the meaning set forth in Section 8.2.
“Certificate” shall mean a certificate or book entry evidencing shares of MutualFirst Financial
Common Stock.
“Claim” shall have the meaning set forth in Section 7.7.2.
“Closing” shall have the meaning set forth in Section 2.2.
“Closing Date” shall have the meaning set forth in Section 2.2.
2
“COBRA” shall mean the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended.
“Code” shall mean the Internal Revenue Code of 1986, as amended.
“Confidentiality Agreement” shall mean the confidentiality agreement referred to in Section 12.1 of
this Agreement.
“Continuing Employees” shall have the meaning set forth in Section 7.6.1.
“Xxxx-Xxxxx Act” shall have the meaning set forth in Section 4.6.6.
“Effective Time” shall mean the date and time specified pursuant to Section 2.2 hereof as the
effective time of the Merger.
“Environmental Laws” means any applicable Federal, state or local law, statute, ordinance, rule,
regulation, code, license, permit, authorization, approval, consent, order, judgment, decree, injunction or agreement with any Governmental Entity relating to (1) the protection, preservation or restoration of the environment (including, without
limitation, air, water vapor, surface water, groundwater, drinking water supply, surface soil, subsurface soil, plant and animal life or any other natural resource), and/or (2) the use, storage, recycling, treatment, generation, transportation,
processing, handling, labeling, production, release or disposal of Materials of Environmental Concern. The term Environmental Law includes without limitation (a) the Comprehensive Environmental Response, Compensation and Liability Act, as amended,
42 U.S.C. §9601, et seq; the Resource Conservation and Recovery Act, as amended, 42 U.S.C. §6901, et seq; the Clean Air Act, as amended, 42 U.S.C. §7401, et seq; the Federal Water Pollution Control Act, as amended, 33 U.S.C. §1251, et seq; the Toxic
Substances Control Act, as amended, 15 U.S.C. §2601, et seq; the Emergency Planning and Community Right to Know Act, 42 U.S.C. §11001, et seq; the Safe Drinking Xxxxx Xxx, 00 X.X.X. §000x, et seq; and all comparable state and local laws, and (b) any
common law (including without limitation common law that may impose strict liability) that may impose liability or obligations for injuries or damages due to the presence of or exposure to any Materials of Environmental Concern.
“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.
“Exchange Agent” shall mean American Stock Transfer & Trust Company, or such other bank or trust
company or other agent designated by Northwest Bancshares, and reasonably acceptable to MutualFirst Financial, which shall act as agent for Northwest Bancshares in connection with the exchange procedures for exchanging Certificates for the Merger
Consideration.
“Exchange Fund” shall have the meaning set forth in Section 3.3.1.
“Exchange Ratio” shall have the meaning set forth in Section 3.1.3.
3
“FDIC” shall mean the Federal Deposit Insurance Corporation or any successor thereto.
“FHLB” shall mean a Federal Home Loan Bank.
“FRB” shall mean the Board of Governors of the Federal Reserve System or any successor thereto.
“GAAP” shall mean accounting principles generally accepted in the United States of America.
“Governmental Entity” shall mean any Federal or state court, administrative agency or commission or
other governmental authority or instrumentality.
“HIPAA” shall mean the Health Insurance Portability and Accountability Act.
“HOLA” means the Home Owners’ Loan Act, as amended.
“Indiana Code” means the Indiana Code Title 28 and related regulations.
“Indiana Department” means the Indiana Department of Financial Institutions.
“Indemnified Parties” shall have the meaning set forth in Section 7.7.2.
“IRS” shall mean the United States Internal Revenue Service.
“Knowledge” as used with respect to a Person (including references to such Person being aware of a
particular matter) means those facts that are known or should have been known by the executive officers of such Person.
“Material Adverse Effect” shall mean, with respect to Northwest Bancshares or MutualFirst Financial,
respectively, any effect that (i) is material and adverse to the financial condition, results of operations or business of Northwest Bancshares and its Subsidiaries taken as a whole, or MutualFirst Financial and its Subsidiaries taken as a whole,
respectively, or (ii) materially impairs the ability of either Northwest Bancshares, on the one hand, or MutualFirst Financial, on the other hand, to perform its obligations under this Agreement or otherwise materially impedes the consummation of the
transactions contemplated by this Agreement; provided, however, that “Material Adverse Effect” shall not be deemed to include the impact of (a) changes in laws and regulations affecting banks or thrift institutions generally, or interpretations
thereof by courts or governmental agencies, (b) changes in GAAP or regulatory accounting principles generally applicable to financial institutions and their holding companies, (c) changes in interest rates or general economic conditions impacting
financial institutions generally, (d) actions and omissions of a party hereto (or any of its Subsidiaries) taken with the prior written consent of the other party, (e) the announcement of this Agreement and the transactions contemplated thereby, and
compliance with this Agreement, on the business, customer relations, financial condition or results of operations of the parties and their respective
4
Subsidiaries, including the resignation from employment of employees and expenses incurred by the parties
hereto in consummating the transactions contemplated by this Agreement, or (f) changes in national or international political or social conditions including the engagement by the United States in hostilities, whether or not pursuant to the
declaration of a national emergency or war, or the occurrence of any military or terrorist attack upon or within the United States, or any of its territories, possessions or diplomatic or consular offices or upon any military installation, equipment
or personnel of the United States, unless it uniquely affects either or both of the parties or any of their Subsidiaries, taken as a whole.
“Materials of Environmental Concern” means pollutants, contaminants, wastes, toxic substances,
petroleum and petroleum products, and any other materials regulated under Environmental Laws.
“Maximum Amount” shall have the meaning set forth in Section 7.7.1.
“Merger” shall mean the merger of MutualFirst Financial with and into Northwest Bancshares, with
Northwest Bancshares as the surviving entity pursuant to the terms hereof.
“Merger Consideration” shall mean the Northwest Bancshares Common Stock in the per share amount to be
paid by Northwest Bancshares for each share of MutualFirst Financial Common Stock, as set forth in Section 3.1.
“Merger Registration Statement” shall mean the registration statement, together with all amendments,
filed with the SEC under the Securities Act for the purpose of registering shares of Northwest Bancshares Common Stock to be offered to holders of MutualFirst Financial Common Stock in connection with the Merger.
“MGCL” means the Maryland General Corporation Law.
“MutualBank” shall mean Mutual Bank, an Indiana bank with its principal office at 000 X. Xxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxx 00000.
“MutualBank Common Stock” shall have the meaning set forth in Section 4.3.2.
“MutualFirst Financial” shall mean MutualFirst Financial, Inc., a Maryland corporation, with its
principal executive offices located at 000 X. Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxx 00000.
“MutualFirst Financial Common Stock” shall mean the common shares, par value $0.01 per share, of
MutualFirst Financial.
“MutualFirst Financial Compensation and Benefit Plans” shall have the meaning set forth in Section
4.13.1 hereof.
“MutualFirst Financial Disclosure Schedule” shall mean the collective written disclosure schedules
delivered by MutualFirst Financial to Northwest Bancshares pursuant to this Agreement.
5
“MutualFirst Financial ERISA Affiliate” shall have the meaning set forth in Section 4.13.3.
“MutualFirst Financial Financial Statements” shall mean (i) the audited consolidated balance sheets
(including related notes and schedules, if any) of MutualFirst Financial as of December 31, 2018 and 2017 and the consolidated statements of income, comprehensive income, stockholders’ equity and cash flows (including related notes and schedules, if
any) of MutualFirst Financial for each of the three years ended December 31, 2018, 2017 and 2016, and (ii) the unaudited interim consolidated financial statements of MutualFirst Financial as of the end of each calendar quarter following December 31,
2018 and for the periods then ended, as filed by MutualFirst Financial in its Securities Documents.
“MutualFirst Financial 401(k) Plan” shall mean The MutualBank Employee Stock Ownership and 401(k)
Plan.
“MutualFirst Financial Non-Qualified Agreement(s)” shall mean, individually or collectively, the
non-qualified plans, arrangements and/or agreements identified in the MutualFirst Financial Disclosure Schedule 4.13.1, whether or not subject to Code Section 409A.
“MutualFirst Financial Preferred Stock” shall mean the preferred shares, $0.01 par value, of
MutualFirst Financial.
“MutualFirst Financial Recommendation” shall have the meaning set forth in Section 8.1.1.
“MutualFirst Financial Regulatory Reports” means the Call Reports of MutualBank and accompanying
schedules, as filed with the Federal Financial Institutions Examination Council, for each calendar quarter beginning with the quarter ended March 31, 2019, through the Closing Date, and Form FR Y-9C and other required reporting forms required by the
FRB for each calendar quarter beginning with the quarter ended March 31, 2019 through the Closing Date.
“MutualFirst Financial Reports” shall have the meaning set forth in Section 4.6.5.
“MutualFirst Financial Representatives” shall have the meaning set forth in Section 6.10.1.
“MutualFirst Financial Stock Options” shall have the meaning set forth in Section 3.5.1.
“MutualFirst Financial Stock Plan” means, individually or collectively, the MutualFirst Financial,
Inc. 2019 Omnibus Incentive Plan, 2008 Stock Option and Incentive Plan, 2000 Stock Option and Incentive Plan and 2000 Recognition and Retention Plan.
“MutualFirst Financial
Stockholder Approval” shall have the meaning set forth in Section 4.4.1.
“MutualFirst Financial Stockholders Meeting” shall have the meaning set forth in Section 8.1.1.
6
“MutualFirst Financial Subsequent Determination” shall have the meaning set forth in Section 6.10.5.
“MutualFirst Financial Subsidiary” means any corporation, 50% or more of the capital stock of which
is owned, either directly or indirectly, by MutualFirst Financial.
“Nasdaq” means the Nasdaq Stock Market.
“Northwest Bancshares” shall mean Northwest Bancshares, Inc., a Maryland corporation, with its
principal executive offices located at 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxx 00000.
“Northwest Bancshares Common Stock” shall mean the common stock, par value $0.01 per share, of
Northwest Bancshares.
“Northwest Bancshares Compensation and Benefit Plan” shall have the meaning set forth in Section
5.12.1.
“Northwest Bancshares Disclosure Schedule” shall mean the collective written disclosure schedules
delivered by Northwest Bancshares to MutualFirst Financial pursuant to this Agreement.
“Northwest Bancshares ERISA Affiliate” shall have the meaning set forth in section 5.12.3.
“Northwest Bancshares 401(k) Plan” shall mean the Northwest Bank 2015 Amended and Restated 401(k)
Plan.
“Northwest Bancshares Financial Statements” shall mean the (i) the audited consolidated statements of
financial condition (including related notes and schedules) of Northwest Bancshares as of December 31, 2018 and 2017 and the consolidated statements of income, comprehensive income, changes in shareholders’ equity and cash flows (including related
notes and schedules, if any) of Northwest Bancshares for each of the three years ended December 31, 2018, 2017 and 2016, as set forth in Northwest Bancshares’ annual report for the year ended December 31, 2018, and (ii) the unaudited interim
consolidated financial statements of Northwest Bancshares as of the end of each calendar quarter following December 31, 2018, and for the periods then ended, as filed by Northwest Bancshares in its Securities Documents.
“Northwest Bancshares Pension Plan” shall have the meaning set forth in Section 5.12.3.
“Northwest Bancshares Preferred Stock” shall have the meaning set forth in Section 5.3.1.
“Northwest Bancshares Regulatory Reports” means the Call Reports of Northwest Bank and accompanying
schedules as filed with the Federal Financial Institutions Examination Counsel, for each calendar quarter beginning with the quarter ended March 31, 2019, through the Closing Date, and Form FR Y-9C and other required reporting forms required by the
FRB for each calendar quarter beginning with the quarter ended March 31, 2019 through the Closing Date.
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“Northwest Bancshares Stock Benefit Plans” shall mean the Northwest Bancorp, Inc. 2004 Stock Option
Plan, the Northwest Bancorp, Inc. 2008 Stock Option Plan, the Northwest Bancshares, Inc. 2011 Equity Incentive Plan and the 2018 Equity Incentive Plan.
“Northwest Bancshares Fee” shall have the meaning set forth in Section 11.2.2(C).
“Northwest Bancshares Stockholder Approval” shall mean the approval by Northwest Bancshares
shareholders by requisite vote of the issuance of Northwest Bancshares Common Stock pursuant to the Merger and this Agreement, to the extent required.
“Northwest Bancshares Subsidiary” means any corporation, 50% or more of the capital stock of which is
owned, either directly or indirectly, by Northwest Bancshares.
“Northwest Bank” shall mean Northwest Bank, a Pennsylvania savings bank, with its principal offices
located at 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxx 00000.
“Northwest Bank Common Stock” shall have the meaning set forth in Section 5.3.2.
“Northwest Bank Severance Plan” shall have the meaning set forth in Section 7.6.3.
“Northwest Reports” shall have the meaning set forth in Section 5.6.5.
“Notice of Superior Proposal” shall have the meaning set forth in Section 6.10.5.
“Other Real Estate Owned” and “OREO” mean real estate or loans secured by real
estate that are classified or would be classified, under bank regulatory accounting principles, as: “loans to facilitate”; “other real estate owned”; “in-substance foreclosure”; “in-substance repossession”; “foreclosed real
estate”; or “real estate acquired for debts previously contracted.”
“Participation Facility” means any facility in which MutualFirst
Financial or its Subsidiaries participates in the management of such facility, whether as lender in control of the facility, owner or operator.
“PBGC” shall mean the Pension Benefit Guaranty Corporation or any successor thereto.
“Pennsylvania Code” means the Pennsylvania Banking Code of 1965, as amended.
“Pennsylvania Department” shall mean the Pennsylvania Department of Banking and Securities.
“Person” shall mean any individual, corporation, partnership, joint venture, association, trust or
“group” (as that term is defined under the Exchange Act).
“Phase I” shall have the meaning set forth in Section 6.3.2.
“Phase II” shall have the meaning set forth in Section 6.3.2.
“Pre-Closing” shall have the meaning set forth in Section 10.1.
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“Proxy Statement-Prospectus” shall have the meaning set forth in Section 8.1.3.
“Regulatory Agreement” shall have the meaning set forth in Sections 4.12.3 and 5.11.3.
“Regulatory Approvals” means the approval of any Bank Regulator and any other Governmental Entity
that is necessary in connection with the consummation of the Merger, and the related transactions contemplated by this Agreement.
“Rights” shall mean warrants, options, rights, convertible securities, stock appreciation rights and
other arrangements or commitments which obligate an entity to issue or dispose of any of its capital stock or other ownership interests or which provide for compensation based on the equity appreciation of its capital stock.
“Xxxxxxxx-Xxxxx Act” shall have the meaning set forth in Section 4.6.5.
“SBA” shall mean the United States Small Business Administration or any successor thereto.
“SEC” shall mean the Securities and Exchange Commission or any successor thereto.
“Securities Act” shall mean the Securities Act of 1933, as amended.
“Securities Documents” shall mean all reports, offering circulars, proxy statements, registration
statements and all similar documents filed pursuant to the Securities Laws.
“Securities Laws” shall mean the Securities Act; the Exchange Act; the Investment Company Act of
1940, as amended; the Investment Advisers Act of 1940, as amended; the Trust Indenture Act of 1939, as amended, and the rules and regulations of the SEC promulgated thereunder.
“Subsidiary” shall have the meaning set forth in Rule 1-02 of Regulation S-X of the SEC.
“Surviving Company” shall have the meaning set forth in Section 2.1 hereof.
“Termination Date” shall mean July 31, 2020, provided that such date shall be extended to September
30, 2020 if all Regulatory Approvals have not been received by July 31, 2020, and the parties are acting in good faith to obtain such approvals.
“Treasury Regulation” shall mean a regulation promulgated by the United States Treasury Department.
“Treasury Stock” shall have the meaning set forth in Section 3.1.2.
“WARN Act” has the meaning set forth in Section 6.15.
“Willful Breach” shall have the meaning set forth in Section 11.2.2.
Other terms used herein are defined in the preamble and elsewhere in this Agreement.
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Subject to the terms and conditions of this Agreement, at the Effective Time: (a) MutualFirst
Financial will merge with and into Northwest Bancshares, with Northwest Bancshares as the resulting or surviving corporation (the “Surviving Company”), with its main office to be maintained at 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxx 00000; and (b)
the separate existence of MutualFirst Financial will cease and all of the rights, privileges, powers, franchises, properties, assets, liabilities and obligations of MutualFirst Financial will be vested in and assumed by Northwest Bancshares. As part
of the Merger, each share of MutualFirst Financial Common Stock will be converted into the right to receive the Merger Consideration pursuant to the terms of Article III hereof.
Subject to the satisfaction or waiver of all conditions to closing contained in Article IX hereof,
the Closing will occur no later than ten business days following the latest to occur of (i) the receipt of all required Regulatory Approvals, and the expiration of any applicable waiting periods, (ii) the approval of the Merger by the stockholders of
MutualFirst Financial, (iii) the approval of the Merger by the stockholders of Northwest Bancshares, or (iv) at such other date or time upon which Northwest Bancshares and MutualFirst Financial mutually agree (the “Closing”, with the date on which
the Closing occurs being the “Closing Date”). The Merger will be effected by the filing of Articles of Merger with the Maryland Department in accordance with the MGCL, and will become effective at such time the Articles of Merger are filed with the
Maryland Department, or at such later time as the Parties agree and specify in the Articles of Merger, in accordance with the MGCL (the date and time the Merger becomes effective being the “Effective Time”).
The Articles of Incorporation and Bylaws of Northwest Bancshares in effect immediately prior to the
Effective Time will be the Articles of Incorporation and Bylaws of the Surviving Company, until thereafter amended as provided therein and by applicable law.
Except as provided in Section 2.5, the directors of Northwest Bancshares immediately prior to the
Effective Time will be the initial directors of the Surviving Company, each to hold office in accordance with the Articles of Incorporation and Bylaws of the Surviving Company. Until changed in accordance with the Articles of Incorporation and
Bylaws of the Surviving Company, the officers of Northwest Bancshares immediately prior to the Effective Time will be the initial officers of Surviving Company, in each case until their respective successors are duly elected or appointed and
qualified.
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Northwest Bancshares and Northwest Bank will take such corporate actions as necessary so that
effective immediately after the Closing Date, one individual who is a director of MutualFirst Financial (as of the date hereof and as of the Effective Time) and who is designated by Northwest Bancshares and Northwest Bank, in consultation with
MutualFirst Financial, will be appointed and elected to the Northwest Bancshares and Northwest Bank Boards of Directors.
It is intended that the Merger constitutes a reorganization within the meaning of Section 368(a) of
the Code, and that this Agreement constitutes a “plan of reorganization” as that term is used in Sections 354 and 361 of the Code. From and after the date of this Agreement and until the
Closing, each party hereto will use its reasonable best efforts to cause the Merger to qualify, and will not knowingly take any action, cause any action to be taken, fail to take any action or cause any action to fail to be taken which action or
failure to act could prevent the Merger from qualifying as a reorganization under Section 368(a) of the Code. Following the Closing, neither Northwest Bancshares, MutualFirst Financial nor any of their affiliates will knowingly take any action,
cause any action to be taken, fail to take any action or cause any action to fail to be taken, which action or failure to act could cause the Merger to fail to qualify as a reorganization under Section 368(a) of the Code. Northwest Bancshares and
MutualFirst Financial each hereby agrees to deliver certificates substantially in compliance with IRS published advance ruling guidelines, with customary exceptions and modifications thereto, to enable counsel to deliver the legal opinions
contemplated by Sections 9.2.5 and 9.3.5, which certificates will be effective as of the date of such opinions.
Notwithstanding anything to the contrary contained in this Agreement and subject to the satisfaction
of the conditions set forth in Article IX, prior to the Effective Time Northwest Bancshares will be entitled to revise the structure of the Merger described in Section 2.1 hereof, provided that (i) such modification does not prevent the rendering of
the opinions contemplated by Sections 9.2.5 and 9.3.5; (ii) the consideration to be paid to the holders of MutualFirst Financial Common Stock under this Agreement is not thereby changed in kind, value or reduced in amount; and (iii) such modification
will not delay materially or jeopardize receipt of any required regulatory approvals or other consents and approvals relating to the consummation of the Merger. The parties hereto agree to appropriately amend this Agreement and any related documents
in order to reflect any such revised structure.
If, at any time after the Effective Time, Northwest Bancshares shall consider or be advised that any
further deeds, assignments or assurances in law or any other acts are necessary or desirable to (i) vest, perfect or confirm, of record or otherwise, in Northwest Bancshares its right, title or interest in, to or under any of the rights, properties
or assets of MutualFirst Financial or MutualBank, or (ii) otherwise carry out the purposes of this Agreement, MutualFirst Financial, MutualBank and their officers and directors shall be deemed to have granted to
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Northwest Bancshares and Northwest Bank an irrevocable power of attorney to execute and deliver all such deeds,
assignments or assurances in law or any other acts as are necessary or desirable to (a) vest, perfect or confirm, of record or otherwise, in Northwest Bancshares or Northwest Bank its right, title or interest in, to or under any of the rights,
properties or assets of MutualFirst Financial or (b) otherwise carry out the purposes of this Agreement, and the officers and directors of Northwest Bancshares and Northwest Bank are authorized in the name of MutualFirst Financial, MutualBank or
otherwise to take any and all such action.
Immediately following the Effective Time of the Merger, MutualBank and Northwest Bank will execute
the Bank Merger Agreement. Subject to the terms and conditions of the Bank Merger Agreement, and in accordance with federal and state law, MutualBank will merge with and into Northwest Bank, and Northwest Bank shall be the surviving institution. The
Bank Merger Effective Time shall immediately follow the Effective Time of the Merger, at which time the Bank Merger shall be consummated.
At the Effective Time, by virtue of the Merger and without any action on the part of Northwest
Bancshares, MutualFirst Financial or the holders of any of the shares of MutualFirst Financial Common Stock, the Merger will be effected in accordance with the following terms:
3.1.1. Each share of Northwest Bancshares Common Stock that is issued and outstanding immediately prior to the Effective Time will remain
issued and outstanding following the Effective Time and shall be unchanged by the Merger.
3.1.2. All shares of MutualFirst Financial Common Stock held in the treasury of MutualFirst Financial and each share of MutualFirst Financial
Common Stock owned by Northwest Bancshares or any direct or indirect wholly owned Subsidiary of Northwest Bancshares or of MutualFirst Financial immediately prior to the Effective Time (other than shares held in a fiduciary capacity or in
connection with debts previously contracted) (“Treasury Stock”), will, at the Effective Time, cease to exist, and the certificates for such shares will be canceled as promptly as practicable thereafter, and no payment or distribution shall be made
in consideration therefor.
3.1.3. Each share of MutualFirst Financial Common Stock issued and outstanding immediately prior to the Effective Time (other than Treasury
Stock) shall become and be converted into, as provided in and subject to the limitations set forth in this Agreement, the right to receive 2.4 shares (the “Exchange Ratio”) of Northwest Bancshares Common Stock (the “Merger Consideration”).
3.1.4. After the Effective Time, shares of MutualFirst Financial Common Stock will no longer be outstanding and will automatically be canceled
and will cease to exist, and shall thereafter by operation of this section have no rights except the right to receive the Merger Consideration.
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3.1.5. In the event Northwest Bancshares changes (or establishes a record date for changing) the number of, or provides for the exchange of,
shares of Northwest Bancshares Common Stock issued and outstanding prior to the Effective Time as a result of a stock split, stock dividend, recapitalization, reclassification, or similar transaction with respect to the outstanding Northwest
Bancshares Common Stock and the record date therefor shall be prior to the Effective Time, the Exchange Ratio will be proportionately and appropriately adjusted; provided,
that no such adjustment will be made with regard to Northwest Bancshares Common Stock if Northwest Bancshares issues additional shares of Northwest Bancshares
Common Stock and receives fair market value consideration for such shares.
Notwithstanding anything to the contrary contained herein, no certificates or scrip representing
fractional shares of Northwest Bancshares Common Stock shall be issued upon the surrender for exchange of Certificates, no dividend or distribution with respect to Northwest Bancshares Common Stock will be payable on or with respect to any fractional
share interest, and such fractional share interests will not entitle the owner thereof to vote or to any other rights of a stockholder of Northwest Bancshares. In lieu of issuing any fractional shares, Northwest Bancshares will pay to each former
holder of MutualFirst Financial Common Stock who otherwise would be entitled to receive a fractional share of Northwest Bancshares Common Stock, an amount in cash, rounded to the nearest cent and without interest, equal to the product of (i) the
fraction of a share to which such holder would otherwise have been entitled and (ii) the average of the daily closing sales prices of a share of Northwest Bancshares Common Stock as reported on the Nasdaq for the ten consecutive trading days ending
three trading days preceding the Closing Date. In determining any fractional share interest, all shares of MutualFirst Financial Common Stock owned by a MutualFirst Financial stockholder shall be combined so as to calculate the maximum number of
whole shares of Northwest Bancshares Common Stock issuable to such MutualFirst Financial stockholder.
3.3.1. Northwest Bancshares to Make Merger
Consideration Available. At or prior to the Effective Time, Northwest Bancshares will deposit, or will cause to be deposited, with the Exchange Agent for the benefit of the holders of MutualFirst Financial Common Stock, for exchange in
accordance with this Section 3.3, certificates representing the shares of Northwest Bancshares Common Stock sufficient to pay the aggregate amount of the Merger Consideration, or at Northwest Bancshares’ option, evidence of shares in book entry
form, and an aggregate amount of cash sufficient to pay the aggregate amount of cash payable pursuant to this Article III (which amount of cash will be paid in lieu of fractional shares of Northwest Bancshares Common Stock) (such cash and
certificates for shares of Northwest Bancshares Common Stock, together with any dividends or distributions with respect thereto (without any interest thereon) being hereinafter referred to as the “Exchange Fund”).
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3.3.2. Exchange of Certificates. Northwest
Bancshares will take all steps necessary to cause the Exchange Agent, within five (5) business days after the Effective Time, to mail to each holder of a Certificate or Certificates, a form letter of transmittal for return to the Exchange Agent and
instructions for use in effecting the surrender of the Certificates in exchange for the Merger Consideration and cash in lieu of fractional shares into which the MutualFirst Financial Common Stock represented by such Certificates will have been
converted as a result of the Merger, if any. The letter of transmittal (which shall be subject to the reasonable approval of MutualFirst Financial) will specify that delivery will be effected, and risk of loss and title to the Certificates will
pass, only upon delivery of the Certificates to the Exchange Agent. Upon proper surrender of a Certificate for exchange and cancellation to the Exchange Agent, together with a properly completed letter of transmittal, duly executed, the holder of
such Certificate will be entitled to receive in exchange therefor the Merger Consideration to which such holder of MutualFirst Financial Common Stock will have become entitled pursuant to Section 3.1.3 hereof, and the Certificate so surrendered
will forthwith be cancelled. No interest will be paid or accrued on any Merger Consideration or any cash payable in lieu of fractional shares or any unpaid dividends and distributions, if any, payable to holders of Certificates.
3.3.3. Rights of Holders of Certificates after the
Effective Time. The holder of a Certificate that prior to the Merger represented issued and outstanding MutualFirst Financial Common Stock shall have no rights, after the Effective Time, with respect to such MutualFirst Financial Common
Stock except to surrender the Certificate in exchange for the Merger Consideration as provided in this Agreement. No dividends or other distributions declared after the Effective Time with respect to Northwest Bancshares Common Stock will be paid
to the holder of any unsurrendered Certificate until the holder thereof surrenders such Certificate in accordance with this Section 3.3. After the surrender of a Certificate in accordance with this Section 3.3, the record holder thereof will be
entitled to receive any such dividends or other distributions, without any interest thereon, which previously had become payable with respect to shares of Northwest Bancshares Common Stock represented by such Certificate.
3.3.4. Surrender by Persons Other than Record Holders.
If the Person surrendering a Certificate and signing the accompanying letter of transmittal is not the record holder thereof, then a condition to the payment of the Merger Consideration will be that: (i) such Certificate is properly endorsed to
such Person or is accompanied by appropriate stock powers, in either case signed exactly as the name of the record holder appears on such Certificate, and is otherwise in proper form for transfer, or is accompanied by appropriate evidence of the
authority of the Person surrendering such Certificate and signing the letter of transmittal to do so on behalf of the record holder; and (ii) the Person requesting such exchange pays to the Exchange Agent in advance any transfer or other taxes
required by reason of the payment to a Person other than the registered holder of the Certificate surrendered, or required for any other reason, or establishes to the satisfaction of the Exchange Agent that such tax has been paid or is not payable.
3.3.5. Closing of Transfer Books. From and
after the Effective Time, there shall be no transfers on the stock transfer books of MutualFirst Financial of the MutualFirst Financial Common Stock that were outstanding immediately prior to the Effective Time. If, after the Effective Time,
Certificates representing such shares are presented for transfer to the Exchange Agent, they shall be exchanged for the Merger Consideration and canceled as provided in this Section 3.3.
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3.3.6. Return of Exchange Fund. At any time
following the twelve (12) month period after the Effective Time, Northwest Bancshares will be entitled to require the Exchange Agent to deliver to it any portions of the Exchange Fund which had been made available to the Exchange Agent and not
disbursed to holders of Certificates (including, without limitation, all interest and other income received by the Exchange Agent in respect of all funds made available to it), and thereafter such holders will be entitled to look to Northwest
Bancshares (subject to abandoned property, escheat and other similar laws) with respect to any Merger Consideration that may be payable upon due surrender of the Certificates held by them. Notwithstanding the foregoing, neither Northwest
Bancshares nor the Exchange Agent shall be liable to any holder of a Certificate for any Merger Consideration delivered in respect of such Certificate to a public official pursuant to any abandoned property, escheat or other similar law.
3.3.7. Lost, Stolen or Destroyed Certificates.
In the event any Certificate is lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming such Certificate to be lost, stolen or destroyed and the posting by such Person of a bond in such amount as the Exchange
Agent may reasonably direct as indemnity against any claim that may be made against it with respect to such Certificate, the Exchange Agent will issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration deliverable
in respect thereof.
3.3.8. Withholding. Northwest Bancshares or
the Exchange Agent will be entitled to deduct and withhold from the consideration otherwise payable pursuant to this Agreement or the transactions contemplated hereby to any holder of MutualFirst Financial Common Stock such amounts as Northwest
Bancshares or the Exchange Agent are required to deduct and withhold with respect to the making of such payment under the Code, or any applicable provision of U.S. federal, state, local or non-U.S. tax law. To the extent that such amounts are
properly withheld by Northwest Bancshares or the Exchange Agent, such withheld amounts will be treated for all purposes of this Agreement as having been paid to the holder of the MutualFirst Financial Common Stock in respect of whom such deduction
and withholding were made by Northwest Bancshares or the Exchange Agent.
Northwest Bancshares shall reserve for issuance a sufficient number of shares of the Northwest
Bancshares Common Stock for the purpose of issuing shares of Northwest Bancshares Common Stock to the MutualFirst Financial stockholders in accordance with this Article III.
3.5.1 At the Effective Time, each MutualFirst Financial Stock Option then outstanding will vest in full and then cease to represent an option to
purchase shares of MutualFirst Financial Common Stock and will be converted automatically into the right to receive an amount of cash equal to the product of (i) the difference (if positive) between (A) $39.89, minus (B) the exercise price of such MutualFirst Financial Stock Option, multiplied by (ii)
the number of shares of MutualFirst Financial Common Stock subject to said MutualFirst Financial Stock Option.
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3.5.2 MutualFirst Financial Disclosure Schedule 3.5 sets forth
each MutualFirst Financial Stock Option outstanding as of the date of this Agreement, which schedule includes the name of the individual grantee, the date of grant, the vesting schedule, and as to MutualFirst Financial Stock Options, the exercise
price and the expiration date. MutualFirst Financial will take the necessary steps to terminate the MutualFirst Financial Stock Plan as of the Effective Time.
MutualFirst Financial represents and warrants to Northwest Bancshares that the statements contained
in this Article IV are correct as of the date of this Agreement and will be correct as of the Closing Date (as though made then and as though the Closing Date were substituted for the date of this Agreement throughout this Article IV), except as set
forth in the MutualFirst Financial Disclosure Schedule delivered by MutualFirst Financial to Northwest Bancshares on the date hereof, and except as to any representation or warranty which specifically relates to an earlier date. MutualFirst
Financial has made a good faith effort to ensure that the disclosure on each schedule of the MutualFirst Financial Disclosure Schedule corresponds to the
section referenced herein. However, for purposes of the MutualFirst Financial Disclosure Schedule, any item disclosed on any schedule therein is deemed to be fully disclosed with respect to all sections of this Agreement under which such item may be
relevant as and to the extent that it is reasonably clear on the face of such schedule that such item applies to such other section of this Agreement.
No representation or warranty of MutualFirst Financial contained in this Article IV will be deemed
untrue or incorrect, and MutualFirst Financial will not be deemed to have breached a representation or warranty, as a consequence of the existence of any fact, circumstance or event unless such fact, circumstance or event, individually or taken
together with all other facts, circumstances or events inconsistent with any paragraph of Article IV, has had or is reasonably expected to have a Material Adverse Effect, disregarding for these purposes (x) any qualification or exception for, or
reference to, materiality in any such representation or warranty and (y) any use of the terms “material,” “materially,” “in all material respects,” “Material Adverse Effect” or similar terms or phrases in any such representation or warranty;
provided, however, that the foregoing standard shall not apply to representations and warranties contained in Sections 4.2, 4.3, 4.4, 4.8, 4.13.8 and 4.13.9, which shall be deemed untrue, incorrect and breached if they are not true and correct in all
material respects.
4.2.1. MutualFirst Financial is a corporation duly organized, validly existing and in good standing under the laws of the State of Maryland,
and is duly registered as a financial holding company under the BHC Act. MutualFirst Financial has the full corporate power and authority to own or lease all of its properties and assets and to carry on its business as it is now
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being conducted, and is duly licensed or qualified to do business and is in good standing in each
jurisdiction in which the nature of the business conducted by it or the character or location of the properties and assets owned or leased by it makes such licensing or qualification necessary, except where the failure to be so licensed, qualified
or in good standing would not have a Material Adverse Effect on MutualFirst Financial.
4.2.2. MutualBank is a commercial bank duly organized, validly existing and in good standing under the laws of the state of Indiana. The
deposits of MutualBank are insured by the FDIC to the fullest extent permitted by law, and all premiums and assessments required to be paid in connection therewith have been paid when due. MutualBank is a member in good standing of the FHLB of
Indianapolis and owns the requisite amount of stock therein. The location of the principal office and each branch office of MutualBank is set forth in MutualFirst Financial
Disclosure Schedule 4.2.2.
4.2.3. MutualFirst Financial Disclosure Schedule 4.2.3 sets
forth each MutualFirst Financial Subsidiary. Each MutualFirst Financial Subsidiary (other than MutualBank) is a corporation, limited liability company or other legal entity duly organized, validly existing and in good standing under the laws of
its jurisdiction of incorporation or organization. Other than shares of capital stock of the MutualFirst Financial Subsidiaries listed on MutualFirst Financial Disclosure
Schedule 4.2.3, MutualFirst Financial does not own or control, directly or indirectly, or have the right to acquire directly or indirectly, an equity interest in any corporation, company, association, partnership, joint venture or
other entity, except for FHLB stock, permissible equity interests held in the investment portfolios of MutualFirst Financial or any MutualFirst Financial Subsidiary, equity interests held by any MutualFirst Financial Subsidiary in a fiduciary
capacity and equity interests held in connection with the lending activities of MutualFirst Financial or its Subsidiaries.
4.2.4. The respective minute books of MutualFirst Financial and each MutualFirst Financial Subsidiary accurately record, in all material
respects, all material corporate actions of their respective stockholders and boards of directors (including committees).
4.2.5. Prior to the date of this Agreement, MutualFirst Financial has made available to Northwest Bancshares true and correct copies of the
articles of incorporation or charter and bylaws of MutualFirst Financial and each MutualFirst Financial Subsidiary.
4.3.1. The authorized capital stock of MutualFirst Financial consists of twenty million (20,000,000) shares of MutualFirst Financial Common
Stock, par value $0.01 per share, and five million (5,000,000) shares of MutualFirst Financial Preferred Stock. There are eight million, five hundred thirty-one thousand, four hundred ninety one (8,531,491) shares of MutualFirst Financial Common
Stock outstanding, validly issued, fully paid and nonassessable and free of preemptive rights. There are no shares of MutualFirst Financial Preferred Stock outstanding. There are no shares of MutualFirst Financial Common Stock held by MutualFirst
Financial as treasury stock. Neither MutualFirst Financial nor any MutualFirst Financial Subsidiary has or is bound by any Rights of any character relating to the purchase, sale or
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issuance or voting of, or right to receive dividends or other distributions on any shares of
MutualFirst Financial Common Stock, or any other security of MutualFirst Financial or any securities representing the right to vote, purchase or otherwise receive any shares of MutualFirst Financial Common Stock or any other security of MutualFirst
Financial, other than (i) shares issuable under the MutualFirst Financial Stock Benefit Plans; (ii) $10.0 million of trust preferred securities (“MutualFirst Trust Preferred Securities”) issued by MFBC Statutory Trust I and Universal Preferred
Trust (together, the “MutualFirst Trusts”); and (iii) the guarantee by MutualFirst Financial to the holders of the capital securities issued by the Trusts.
4.3.2. The authorized capital stock of MutualBank consists of twenty million (20,000,000) shares of common stock, par value $0.01 per share
(“MutualBank Common Stock”) and five million (5,000,000) shares of preferred stock, par value $0.01 per share, none of which are issued or outstanding. All of the issued and outstanding shares of MutualBank Common Stock are (i) validly issued,
fully paid and nonassessable and free of preemptive rights, and (ii) except as set forth in MutualFirst Financial Disclosure Schedule 4.3.2, owned by MutualFirst
Financial free and clear of any liens, encumbrances, charges, restrictions or rights of third parties of any kind whatsoever. Except for the MutualFirst Trust Preferred Securities, or as set forth in MutualFirst Financial Disclosure Schedule 4.3.2, either MutualFirst Financial or MutualBank owns all of the outstanding shares of capital stock of each MutualFirst Financial Subsidiary free and clear of all
liens, security interests, pledges, charges, encumbrances, agreements and restrictions of any kind or nature.
4.3.3. Except for the MutualFirst Financial Subsidiaries and as set forth in MutualFirst Financial Disclosure Schedule 4.3.3, MutualFirst Financial does not possess, directly or indirectly, any material equity interest in any corporate entity, except for FHLB stock, permissible equity interests held
in the investment portfolios of MutualFirst Financial or any MutualFirst Financial Subsidiary, equity interests held by any MutualFirst Financial Subsidiary in a fiduciary capacity and equity interests held in connection with the lending activities
of MutualFirst Financial or its Subsidiaries.
4.3.4. Except as set forth on MutualFirst Financial Disclosure
Schedule 4.3.4, to MutualFirst Financial’s Knowledge, no Person is the beneficial owner (as defined in Section 13(d) of the Exchange Act) of 5% or more of the outstanding shares of MutualFirst Financial Common Stock, except for
equity interests held in the investment portfolios of MutualFirst Financial or any MutualFirst Financial Subsidiary, equity interests held by any MutualFirst Financial Subsidiary in a fiduciary capacity and equity interests held in connection with
the lending activities of MutualFirst Financial or its Subsidiaries.
4.3.5. No bonds, debentures, notes or other indebtedness having the right to vote on any matters on which MutualFirst Financial’s stockholders
may vote has been issued by MutualFirst Financial and are outstanding.
4.4.1. MutualFirst Financial has full corporate power and authority to execute and deliver this Agreement and, subject to the receipt of the
Regulatory Approvals and the approval of this Agreement by MutualFirst Financial’s stockholders (the “MutualFirst Financial Stockholder Approval”), to consummate the transactions contemplated hereby. The execution
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and delivery of this Agreement by MutualFirst Financial and the completion by MutualFirst
Financial of the transactions contemplated hereby, up to and including the Merger, have been duly and validly approved by the Board of Directors of MutualFirst Financial, and no other corporate proceedings on the part of MutualFirst Financial,
other than the MutualFirst Financial Stockholder Approval, are necessary to approve this Agreement. This Agreement has been duly and validly executed and delivered by MutualFirst Financial, and subject to MutualFirst Financial Stockholder
Approval, Northwest Bancshares Stockholder Approval, receipt of the Regulatory Approvals and due and valid execution and delivery of this Agreement by Northwest Bancshares, constitutes the valid and binding obligation of MutualFirst Financial,
enforceable against MutualFirst Financial in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity.
4.4.2. MutualFirst Financial has previously made available to Northwest Bancshares the MutualFirst Financial Financial Statements. The
MutualFirst Financial Financial Statements have been prepared in accordance with GAAP, and (including the related notes where applicable) fairly present in each case in all material respects (subject in the case of the unaudited interim statements
to normal year-end adjustments) the consolidated financial position, results of operations and cash flows of MutualFirst Financial and the MutualFirst Financial Subsidiaries on a consolidated basis as of and for the respective periods ending on the
dates thereof, in accordance with GAAP during the periods involved, except as indicated in the notes thereto, or in the case of unaudited statements, as permitted by Form 10-Q.
4.4.3. Subject to the receipt of the Regulatory Approvals and compliance by Northwest Bancshares and MutualFirst Financial with any conditions
contained therein, Northwest Bancshares Stockholder Approval, and MutualFirst Financial Stockholder Approval,
| (A) |
the execution and delivery of this Agreement by MutualFirst Financial,
|
| (B) |
the consummation of the transactions contemplated hereby, and
|
| (C) |
compliance by MutualFirst Financial with any of the terms or provisions hereof
|
will not (i) conflict with or result in a breach of any provision of the Articles of Incorporation,
Charter or Bylaws of MutualFirst Financial or any MutualFirst Financial Subsidiary; (ii) violate any statute, code, ordinance, rule, regulation, judgment, order, writ, decree or injunction applicable to MutualFirst Financial or any MutualFirst
Financial Subsidiary or any of their respective properties or assets; or (iii) except as set forth in Mutual First Financial Disclosure Schedule 4.4.3 violate, conflict with, result in a breach of any provisions of, constitute a default (or an event
which, with notice or lapse of time, or both, would constitute a default), under, result in the termination of, accelerate the performance required by, or result in a right of termination or acceleration or the creation of any lien, security
interest, charge or other encumbrance upon any of the properties or assets of MutualFirst Financial or any MutualFirst Financial Subsidiary under any of the terms, conditions or provisions of any note, bond, mortgage, indenture, deed of trust,
license, lease, agreement or other investment or obligation to which any of them is a party,
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or by which they or any of their respective properties or assets may be bound or affected,
except for such violations, conflicts, breaches or defaults under clause (ii) or (iii) hereof which, either individually or in the aggregate, will not have a Material Adverse Effect on MutualFirst Financial and the MutualFirst Financial Subsidiaries
taken as a whole.
4.4.4. The MutualFirst Financial Stockholder Approval is the only vote of holders of any class of MutualFirst Financial’s capital stock
necessary to adopt and approve this Agreement and the transactions contemplated hereby.
4.4.5. The Board of Directors of MutualFirst Financial, by resolution duly adopted by the unanimous vote of the entire Board of Directors at a
meeting duly called and held, has (i) determined that this Agreement, the Merger and the other transactions contemplated hereby are fair to and in the best interests of MutualFirst Financial and its stockholders and declared the Merger to be
advisable, and (ii) recommended that the stockholders of MutualFirst Financial approve this Agreement and directed that such matter be submitted for consideration by the MutualFirst Financial stockholders at the MutualFirst Financial Stockholders
Meeting.
Except for (i) the Regulatory Approvals and compliance with any conditions contained therein, (ii)
the filing with the SEC of (x) the Merger Registration Statement and (y) such reports under Securities Laws as may be required in connection with the execution and delivery of this Agreement and the transactions contemplated hereby and the obtaining
from the SEC of such orders as may be required in connection therewith, (iii) approval of the listing on the Nasdaq of Northwest Bancshares Common Stock to be issued in the Merger, (iv) such filings and approvals as are required to be made or
obtained under the securities or “Blue Sky” laws of various states in connection with the issuance of the shares of Northwest Bancshares Common Stock pursuant to this Agreement, (v) Northwest Bancshares Stockholder Approval, and (vi) the MutualFirst
Financial Stockholder Approval, no consents, waivers or approvals of, or filings or registrations with, any Governmental Entity or Bank Regulator are necessary, and, to the Knowledge of MutualFirst Financial, no consents, waivers or approvals of, or
filings or registrations with, any other third parties are necessary in connection with the execution and delivery of this Agreement by MutualFirst Financial, and the completion by MutualFirst Financial of the Merger. To the Knowledge of MutualFirst
Financial, no fact or circumstance exists, including any possible other transaction pending or under consideration by MutualFirst Financial or any of its Affiliates, that (a) would reasonably be expected to prevent or delay in any material respect,
(i) any filings with or approvals or waivers required from the FRB, the FDIC, the Indiana Department or the Pennsylvania Department, or (ii) any required Regulatory Approvals, or (b) would cause a Bank Regulator or Governmental Entity acting pursuant
to the Bank Merger Act, the BHCA, the Pennsylvania Code, the Indiana Code or any other applicable law or regulation to seek to prohibit or materially delay consummation of the transactions contemplated hereby or impose a Burdensome Condition.
4.6.1. At the date of each balance sheet included in the MutualFirst Financial Financial Statements, MutualFirst Financial did not have any
liabilities, obligations or loss contingencies of any nature (whether absolute, accrued, contingent or otherwise) of a type
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required to be reflected in such MutualFirst Financial Financial Statements or in the footnotes
thereto which are not reflected or reserved against therein in accordance with GAAP or appropriately disclosed in a footnote thereto, except for liabilities, obligations and loss contingencies which are not material individually or in the aggregate
or which are incurred in the ordinary course of business, consistent with past practice, and except for liabilities, obligations and loss contingencies which are within the subject matter of a specific representation and warranty herein and
subject, in the case of any unaudited statements, to normal, recurring audit adjustments and the absence of footnotes.
4.6.2. Except as disclosed in MutualFirst Financial Disclosure
Schedule 4.6.2, MutualFirst Financial and each MutualFirst Financial Subsidiary has timely filed all reports, forms, schedules, registrations, statements and other documents, together with any amendments required to be made with
respect thereto, that it was required to file since December 31, 2018 with any Governmental Entity and has paid all fees and assessments due and payable in connection therewith. The MutualFirst Financial Regulatory Reports, to the extent they
contain financial information, have been prepared in all material respects in accordance with applicable regulatory accounting principles and practices throughout the periods covered by such statements.
4.6.3. MutualFirst Financial (x) has implemented and maintains a system of internal control over financial reporting (as required by Rule
13a-15(a) of the Exchange Act) that is designed to provide reasonable assurances regarding the reliability of financial reporting and the preparation of its financial statements for external purposes in accordance with GAAP and to provide
reasonable assurances that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in accordance with GAAP and to
maintain accountability for assets and (iii) access to assets is permitted only in accordance with management’s general or specific authorization, (y) has implemented and maintains disclosure controls and procedures (as defined in Rule 13a-15(e) of
the Exchange Act) to ensure that material information relating to MutualFirst Financial, including its consolidated Subsidiaries, is made known to the chief executive officer and the chief financial officer of MutualFirst Financial by others within
those entities, and (z) has disclosed, based on its most recent evaluation prior to the date hereof, to MutualFirst Financial outside auditors and the audit committee of the MutualFirst Financial Board of Directors (i) any significant deficiencies
and material weaknesses in the design or operation of internal control over financial reporting (as defined in Rule 13a-15(f) of the Exchange Act) which are reasonably likely to adversely affect MutualFirst Financial’s ability to record, process,
summarize and report financial information and (ii) any fraud, whether or not material, that involves management or other employees who have a significant role in MutualFirst Financial’s internal control over financial reporting. These disclosures
(if any) were made in writing by management to MutualFirst Financial’s auditors and audit committee and a copy has previously been made available to Northwest Bancshares.
4.6.4. Since December 31, 2018, (A) neither MutualFirst Financial nor any MutualFirst Financial Subsidiary nor, to its Knowledge, any director,
officer, employee, auditor, accountant or representative of MutualFirst Financial or any MutualFirst Financial Subsidiary has received or otherwise had or obtained knowledge of any material complaint, allegation, assertion or claim, whether written
or oral, regarding the accounting or auditing practices,
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procedures, methodologies or methods of MutualFirst Financial or any MutualFirst Financial
Subsidiary or their respective internal accounting controls, including any material complaint, allegation, assertion or claim that MutualFirst Financial or any MutualFirst Financial Subsidiary has engaged in questionable accounting or auditing
practices, and (B) no attorney representing MutualFirst Financial or any MutualFirst Financial Subsidiary, whether or not employed by MutualFirst Financial or any MutualFirst Financial Subsidiary, has reported evidence of a material violation of
securities laws, breach of fiduciary duty or similar violation by it or any of its officers, directors, employees or agents to its Board of Directors or any committee thereof or to any of its directors or officers.
4.6.5. MutualFirst Financial has filed all reports, schedules, registration statements, prospectuses, and other documents, together with all
amendments thereto, required to be filed with the SEC since December 31, 2018 (the “MutualFirst Financial Reports”). As of their respective dates of filing with the SEC (or, if amended or superseded by a subsequent filing prior to the date hereof,
as of the date of such subsequent filing), the MutualFirst Financial Reports complied, and each MutualFirst Financial Report filed subsequent to the date hereof and prior to the Effective Time will comply, in all material respects with the
applicable requirements of the Securities Act, the Exchange Act, the Xxxxxxxx-Xxxxx Act of 2002, as amended (the “Xxxxxxxx-Xxxxx Act”), and the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act, as amended (the “Xxxx-Xxxxx Act”), and did
not or will not, as the case may be, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were
made, not misleading. There are no outstanding comments from, or unresolved issues raised by, the SEC with respect to any of the MutualFirst Financial Reports. None of the MutualFirst Financial Subsidiaries is required to file periodic reports with
the SEC pursuant to Section 13 or 15(d) of the Exchange Act. No executive officer of MutualFirst Financial has failed in any respect to make the certifications required of him or her under Section 302 or 906 of the Xxxxxxxx-Xxxxx Act and to the
Knowledge of MutualFirst Financial no enforcement action has been initiated by the SEC against MutualFirst Financial or its officers or directors relating to disclosures contained in any MutualFirst Financial Report.
MutualFirst Financial and the MutualFirst Financial Subsidiaries are members of the same affiliated
group within the meaning of Code Section 1504(a). With respect to all tax years ending after January 1, 2012, MutualFirst Financial and each MutualFirst Financial Subsidiary has duly filed, on or prior to the date of this Agreement, and will duly
file, on or prior to the Closing Date, all federal, state and local tax returns required to be filed by or with respect to MutualFirst Financial and each MutualFirst Financial Subsidiary, taking into account any extensions (all such returns, to the
Knowledge of MutualFirst Financial, being complete and correct in all material respects) and has duly paid, or made provisions for, on or prior to the date of this Agreement, and will duly pay, or make provisions for, on or prior to the Closing Date,
the payment of all material federal, state and local taxes that have been incurred by or are due, or claimed to be due, from MutualFirst Financial and any MutualFirst Financial Subsidiary by any taxing authority or pursuant to any written tax sharing
agreement on or prior to the Closing Date other than taxes or other charges that (i) are not delinquent, (ii) are being contested in good faith,
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or (iii) have not yet been fully determined. As of the date of this Agreement, MutualFirst Financial has
received no notice of, and to the Knowledge of MutualFirst Financial, there is no audit examination, deficiency assessment, tax investigation or refund litigation with respect to any taxes of MutualFirst Financial or any MutualFirst Financial
Subsidiary, and no claim has been made by any authority in a jurisdiction where MutualFirst Financial or any MutualFirst Financial Subsidiary does not file tax returns that MutualFirst Financial or any such MutualFirst Financial Subsidiary is subject
to taxation in that jurisdiction. Except as set forth in MutualFirst Financial Disclosure Schedule 4.7, MutualFirst Financial and the MutualFirst Financial
Subsidiaries have not executed an extension or waiver of any statute of limitations on the assessment or collection of any material tax due that is currently in effect. MutualFirst Financial and each MutualFirst Financial Subsidiary has withheld and
paid all taxes required to have been withheld and paid in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder or other third party, and MutualFirst Financial and each MutualFirst Financial Subsidiary,
to the Knowledge of MutualFirst Financial, has timely complied with all applicable information reporting requirements under Part III, Subchapter A of Chapter 61 of the Code and similar applicable state and local information reporting requirements.
Since December 31, 2018, through and including the date of this Agreement, neither MutualFirst Financial nor any MutualFirst Financial Subsidiary has made any material election for federal or state income tax purposes.
MutualFirst Financial and the MutualFirst Financial Subsidiaries, taken as a whole, have not suffered
any Material Adverse Effect since December 31, 2018 and no event has occurred or circumstance arisen since that date which, in the aggregate, has had or is reasonably likely to have a Material Adverse Effect on MutualFirst Financial and the
MutualFirst Financial Subsidiaries, taken as a whole, except as otherwise disclosed in any MutualFirst Financial Report.
4.9.1. Except as set forth in MutualFirst Financial Disclosure
Schedule 4.9.1, neither MutualFirst Financial nor any MutualFirst Financial Subsidiary is a party to or subject to: (i) any agreement which by its terms limits the payment of dividends by MutualFirst Financial or any MutualFirst
Financial Subsidiary; (ii) any collective bargaining agreement with any labor union relating to employees of MutualFirst Financial or any MutualFirst Financial Subsidiary; (iii) any instrument evidencing or related to material indebtedness for
borrowed money whether directly or indirectly, by way of purchase money obligation, conditional sale, lease purchase, guaranty or otherwise, in respect of which MutualFirst Financial or any MutualFirst Financial Subsidiary is an obligor to any
person, which instrument evidences or relates to indebtedness other than deposits, FHLB of Indianapolis advances, repurchase agreements, bankers’ acceptances, and “treasury tax and loan” accounts established in the ordinary course of business and
transactions in “federal funds” or which contains financial covenants or other restrictions (other than those relating to the payment of principal and interest when due) which would be applicable on or after the Closing Date to Northwest Bancshares
or any Northwest Bancshares Subsidiary; (iv) any other agreement, written or, to MutualFirst Financial’s knowledge, oral, that obligates MutualFirst Financial or any MutualFirst Financial Subsidiary for the payment of more
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than $100,000 annually or for the payment of more than $250,000 over its remaining term, which is
not terminable without cause on 60 days’ or less notice without penalty or payment; or (v) any agreement (other than this Agreement), contract, arrangement, commitment or understanding (whether written or oral) that restricts or limits in any
material way the conduct of business by MutualFirst Financial or any MutualFirst Financial Subsidiary (it being understood that any non-compete or similar provision shall be deemed material).
4.9.2. Each real estate lease is freely transferrable to Northwest Bancshares, and those real estate leases that will require the consent of
the lessor or its agent as a result of the Merger by virtue of the terms of any such lease, is listed in MutualFirst Financial Disclosure Schedule 4.9.2 and such
schedule identifies the section of any lease that contains a prohibition or restriction on transfer. Subject to any consents that may be required as a result of the transactions contemplated by this Agreement, to its Knowledge, neither MutualFirst
Financial nor any MutualFirst Financial Subsidiary is in default in any material respect under any material contract, agreement, commitment, arrangement, lease, insurance policy or other instrument to which it is a party, by which its assets,
business, or operations may be bound or affected, or under which it or its assets, business, or operations receive benefits, and there has not occurred any event that, with the lapse of time or the giving of notice or both, would constitute such a
default.
4.9.3. True and correct copies of agreements, contracts, arrangements and instruments referred to in Section 4.9.1 and 4.9.2 have been made
available to Northwest Bancshares on or before the date hereof, and are listed on MutualFirst Financial Disclosure Schedule 4.9.1 (which schedule includes the
termination date of such contract and the approximate cost of terminating such contract prior to the end of its term) and are in full force and effect on the date hereof. Except as set forth in MutualFirst Financial Disclosure Schedule 4.9.3, no plan, contract, employment agreement, termination agreement, or similar agreement or arrangement to which MutualFirst Financial or any MutualFirst Financial
Subsidiary is a party or under which MutualFirst Financial or any MutualFirst Financial Subsidiary may be liable contains provisions which permit an employee or independent contractor to terminate it without cause or for good reason and continue to
accrue future benefits thereunder. Except as set forth in MutualFirst Financial Disclosure Schedule 4.9.3, no such agreement, plan, contract, or arrangement (x)
provides for acceleration in the vesting of benefits or payments due thereunder upon the occurrence of a change in ownership or control of MutualFirst Financial or any MutualFirst Financial Subsidiary or upon the occurrence of a subsequent event;
or (y) requires MutualFirst Financial or any MutualFirst Financial Subsidiary to provide a benefit in the form of MutualFirst Financial Common Stock or determined by reference to the value of MutualFirst Financial Common Stock.
4.9.4. Except as set forth in MutualFirst Financial Disclosure
Schedule 4.9.4, since December 31, 2018, through and including the date of this Agreement, neither MutualFirst Financial nor any MutualFirst Financial Subsidiary has (i) made any material change in the credit policies or procedures
of MutualFirst Financial or any MutualFirst Financial Subsidiary, the effect of which was or is to make any such policy or procedure less restrictive in any material respect, (ii) made any material acquisition or disposition of any assets or
properties, or entered into any contract for any such acquisition or disposition, other than loans and loan commitments in the ordinary course of business consistent with past practice; (iii) entered into any lease of real
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or personal property requiring annual payments in excess of $100,000, other than in connection
with foreclosed property or in the ordinary course of business consistent with past practice, or (iv) changed any accounting methods, principles or practices of MutualFirst Financial or any MutualFirst Financial Subsidiary affecting its assets,
liabilities or businesses, including any reserving, renewal or residual method, practice or policy.
4.10.1. MutualFirst Financial and each MutualFirst Financial Subsidiary have good and, as to real property, marketable title to all material
assets and properties owned by MutualFirst Financial or each MutualFirst Financial Subsidiary in the conduct of its businesses, whether such assets and properties are real or personal, tangible or intangible, including assets and property reflected
in the balance sheets contained in the MutualFirst Financial Financial Statements or acquired subsequent thereto (except to the extent that such assets and properties have been disposed of in the ordinary course of business, since the date of such
balance sheets), subject to no material encumbrances, liens, mortgages, security interests or pledges, except (i) those items which secure liabilities for public or statutory obligations or any discount with, borrowing from or other obligations to
the FHLB of Indianapolis, inter-bank credit facilities, reverse repurchase agreements or any transaction by MutualFirst Financial or a MutualFirst Financial Subsidiary acting in a fiduciary capacity, (ii) mechanics liens and similar liens for
labor, materials, services or supplies provided for such property and incurred in the ordinary course of business for amounts not yet delinquent or which are being contested in good faith, and (iii) statutory liens for amounts not yet delinquent or
which are being contested in good faith. MutualFirst Financial and each MutualFirst Financial Subsidiary, as lessee, have the right under valid and existing leases of real and personal properties used by MutualFirst Financial and the MutualFirst
Financial Subsidiaries in the conduct of their businesses to occupy or use all such properties as presently occupied and used by each of them.
4.10.2. With respect to all material agreements pursuant to which MutualFirst Financial or any MutualFirst Financial Subsidiary has purchased
securities subject to an agreement to resell, if any, MutualFirst Financial or such MutualFirst Financial Subsidiary, as the case may be, has a lien or security interest (which to MutualFirst Financial’s Knowledge is a valid, perfected first lien)
in the securities or other collateral securing the repurchase agreement, and the value of such collateral equals or exceeds the amount of the debt secured thereby.
4.10.3. MutualFirst Financial and each MutualFirst Financial Subsidiary currently maintain insurance considered by MutualFirst Financial to be
reasonable for their respective operations. Neither MutualFirst Financial nor any MutualFirst Financial Subsidiary has received notice from any insurance carrier that (i) such insurance will be canceled or that coverage thereunder will be reduced
or eliminated, or (ii) premium costs with respect to such policies of insurance will be substantially increased. There are presently no material claims pending under such policies of insurance and no notices have been given by MutualFirst
Financial or any MutualFirst Financial Subsidiary of any material claims under such policies. All such insurance is valid and enforceable and in full force and effect (other than insurance that expires in accordance with its terms), and within the
last three years MutualFirst Financial and each MutualFirst Financial Subsidiary have received each type of insurance coverage for which they have applied and during such periods have not been denied indemnification for any material
25
claims submitted under any of their insurance policies. MutualFirst Financial Disclosure Schedule 4.10.3 identifies all policies of insurance maintained by MutualFirst Financial and each MutualFirst Financial Subsidiary as well as the other
matters required to be disclosed under this Section 4.10.3.
Except as set forth on MutualFirst
Financial Disclosure Schedule 4.11, neither MutualFirst Financial nor any MutualFirst Financial Subsidiary is a party to any, and there are no pending or, to the Knowledge of MutualFirst Financial, threatened, material legal,
administrative, arbitration or other material proceedings, claims (whether asserted or unasserted), actions or governmental investigations or inquiries of any nature, (i) against MutualFirst Financial or any MutualFirst Financial Subsidiary, (ii) to
which MutualFirst Financial or any MutualFirst Financial Subsidiary’s assets are or may be subject, (iii) challenging the validity or propriety of any of the transactions contemplated by this Agreement, or (iv) which could adversely affect the
ability of MutualFirst Financial to perform under this Agreement.
4.12.1. To the Knowledge of MutualFirst Financial, MutualFirst Financial and each MutualFirst Financial Subsidiary is in compliance in all
material respects with all applicable federal, state, local and foreign statutes, laws, regulations, ordinances, rules, judgments, orders or decrees applicable to them, their properties, assets and deposits, their business, and their conduct of
business and their relationship with their employees, including, without limitation, the USA PATRIOT Act, the Equal Credit Opportunity Act, the Fair Housing Act, the Community Reinvestment Act of 1977, the Home Mortgage Disclosure Act, the Bank
Secrecy Act and all other applicable fair lending laws and other laws relating to discriminatory business practices, and neither MutualFirst Financial nor any MutualFirst Financial Subsidiary has received any written notice to the contrary. The
Board of Directors of MutualBank has adopted and MutualBank has implemented an anti-money laundering program that meets the requirements of Sections 352 and 326 of the USA PATRIOT Act and the regulations thereunder and has received no written
notice from any Governmental Entity or Bank Regulator that such program (i) does not contain adequate and appropriate customer identification verification procedures, or (ii) has been deemed ineffective.
4.12.2. MutualFirst Financial and each MutualFirst Financial Subsidiary have all material permits, licenses, authorizations, orders and
approvals of, and has made all filings, applications and registrations with, all Bank Regulators and Governmental Entities that are required to permit it to own or lease its properties and to conduct its business as presently conducted; all such
permits, licenses, certificates of authority, orders and approvals are in full force and effect and, to the Knowledge of MutualFirst Financial, no suspension or cancellation of any such permit, license, certificate, order or approval is threatened
or will result from the consummation of the transactions contemplated by this Agreement, subject to obtaining the Regulatory Approvals.
4.12.3. Except as set forth in MutualFirst Financial Disclosure Schedule
4.12.3, for the period beginning January 1, 2018, neither MutualFirst Financial nor any MutualFirst Financial Subsidiary has received any written notification or, to the Knowledge of MutualFirst
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Financial, any other communication from any Bank Regulator: (i) asserting that MutualFirst
Financial or any MutualFirst Financial Subsidiary is not in material compliance with any of the statutes, regulations or ordinances which such Bank Regulator enforces; (ii) threatening to revoke any license, franchise, permit or governmental
authorization which is material to MutualFirst Financial or any MutualFirst Financial Subsidiary; (iii) requiring or threatening to require MutualFirst Financial or any MutualFirst Financial Subsidiary, or indicating that MutualFirst Financial or
any MutualFirst Financial Subsidiary may be required, to enter into a cease and desist order, agreement or memorandum of understanding or any other agreement with any federal or state governmental agency or authority which is charged with the
supervision or regulation of banks or engages in the insurance of bank deposits restricting or limiting, or purporting to restrict or limit, in any material respect the operations of MutualFirst Financial or any MutualFirst Financial Subsidiary,
including without limitation any restriction on the payment of dividends; or (iv) directing, restricting or limiting, or purporting to direct, restrict or limit, in any material manner the operations of MutualFirst Financial or any MutualFirst
Financial Subsidiary, including without limitation any restriction on the payment of dividends (any such notice, communication, memorandum, agreement or order described in this sentence is hereinafter referred to as a “Regulatory Agreement”).
Neither MutualFirst Financial nor any MutualFirst Financial Subsidiary has consented to or entered into any currently effective Regulatory Agreement. The most recent regulatory rating given to MutualFirst Financial as to compliance with the CRA is
“Satisfactory” or better.
4.13.1 MutualFirst Financial Disclosure Schedule 4.13.1
includes a list of all existing bonus, incentive, deferred compensation, supplemental executive retirement plans, pension, retirement, profit-sharing, thrift, savings, employee stock ownership, stock bonus, stock purchase, restricted stock, stock
option, stock appreciation, phantom stock, severance, welfare benefit plans (including paid time off policies and other material benefit policies and procedures), split dollar life insurance, fringe benefit plans, employment, consulting, settlement
and change in control agreements and all other material benefit practices, policies and arrangements maintained by MutualFirst Financial or any MutualFirst Financial Subsidiary in which any employee or former employee, consultant or former
consultant or director or former director participates or to which any such employee, consultant or director is a party or is otherwise entitled to receive benefits (the “MutualFirst Financial Compensation and Benefit Plans”). Neither MutualFirst
Financial nor any MutualFirst Financial Subsidiary has any commitment to create any additional MutualFirst Financial Compensation and Benefit Plan or to materially modify, change or renew any existing MutualFirst Financial Compensation and Benefit
Plan (any modification or change that increases the cost of such plans would be deemed material), except as required to maintain the qualified status thereof or otherwise comply with applicable law. MutualFirst Financial has made available to
Northwest Bancshares true and correct copies of the MutualFirst Financial Compensation and Benefit Plans.
4.13.2 Except as set forth in MutualFirst Financial Disclosure
Schedule 4.13.2, Each MutualFirst Financial Compensation and Benefit Plan has been operated and administered in all material respects in accordance with its terms and, in all material respects, with applicable law, including, but not
limited to, ERISA, the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act, COBRA, HIPAA and any
27
regulations or rules promulgated thereunder, and all material filings, disclosures and notices
required by ERISA, the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act, COBRA and HIPAA and any other applicable law have been timely made or any interest, fines, penalties or other impositions for late filings
have been paid in full. Each MutualFirst Financial Compensation and Benefit Plan which is an “employee pension benefit plan” within the meaning of Section 3(2) of ERISA and which is intended to be qualified under Section 401(a) of the Code has
received a favorable determination or opinion letter from the IRS, and MutualFirst Financial is not aware of any circumstances which are reasonably likely to result in revocation of any such favorable determination or opinion letter. There is no
material pending or, to the Knowledge of MutualFirst Financial, threatened action, suit or claim relating to any of the MutualFirst Financial Compensation and Benefit Plans (other than routine claims for benefits). Neither MutualFirst Financial
nor any of its Subsidiaries has engaged in a transaction, or omitted to take any action, with respect to any MutualFirst Financial Compensation and Benefit Plan that would reasonably be expected to subject MutualFirst Financial or any of
MutualFirst Financial Subsidiary to a material unpaid tax or penalty imposed by either Section 4975 of the Code or Section 502 of ERISA.
4.13.3. No liability under Title IV of ERISA has been incurred by MutualFirst Financial or any MutualFirst Financial Subsidiary with respect to
any MutualFirst Financial Compensation and Benefit Plan which is subject to Title IV of ERISA (“MutualFirst Financial Pension Plan”) currently or formerly maintained by MutualFirst Financial or any entity which is considered one employer with
MutualFirst Financial under Section 4001(b)(1) of ERISA or Section 414 of the Code (an “MutualFirst Financial ERISA Affiliate”) since the effective date of ERISA that has not been satisfied in full, and, to the Knowledge of MutualFirst Financial,
no condition exists that presents a material risk to MutualFirst Financial or any MutualFirst Financial ERISA Affiliate of incurring a liability under such Title. No MutualFirst Financial Pension Plan had an “accumulated funding deficiency” (as
defined in Section 302 of ERISA), whether or not waived, as of the last day of the end of the most recent plan year ending prior to the date hereof; the fair market value of the assets of each MutualFirst Financial Pension Plan exceeds the present
value of the “benefit liabilities” (as defined in Section 4001(a)(16) of ERISA) under such MutualFirst Financial Pension Plan as of the end of the most recent plan year with respect to the respective MutualFirst Financial Pension Plan ending prior
to the date hereof, calculated on the basis of the actuarial assumptions used in the most recent actuarial valuation for such MutualFirst Financial Pension Plan as of the date hereof; there is not currently pending with the PBGC any filing with
respect to any reportable event under Section 4043 of ERISA nor has any reportable event occurred as to which a filing is required and has not been made (other than as might be required with respect to this Agreement and the transactions
contemplated thereby). Neither MutualFirst Financial nor any MutualFirst Financial ERISA Affiliate has contributed to any “multiemployer plan,” as defined in Section 3(37) of ERISA. Neither MutualFirst Financial, nor, to the Knowledge of
MutualFirst Financial, any MutualFirst Financial ERISA Affiliate, nor any MutualFirst Financial Compensation and Benefit Plan, including any MutualFirst Financial Pension Plan, nor any trust created thereunder, nor, to the Knowledge of MutualFirst
Financial, any trustee or administrator thereof
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has engaged in a transaction in connection with which MutualFirst Financial, any MutualFirst
Financial ERISA Affiliate, and any MutualFirst Financial Compensation and Benefit Plan, including any MutualFirst Financial Pension Plan or any such trust or any trustee or administrator thereof, would reasonably be expected to be subject to either
a material civil liability or penalty pursuant to Section 409, 502(i) or 502(l) of ERISA or a material tax imposed pursuant to Chapter 43 of the Code.
4.13.4 All material contributions required to be made under the terms of any MutualFirst Financial Compensation and Benefit Plan have been
timely made, and all anticipated contributions and funding obligations have been accrued on MutualFirst Financial’s consolidated financial statements to the extent required by and in accordance with GAAP. MutualFirst Financial and any MutualFirst
Financial Subsidiary has expensed and accrued as a liability the present value of future benefits under each applicable MutualFirst Financial Compensation and Benefit Plan for financial reporting purposes in accordance with applicable laws and
GAAP.
4.13.5 Neither MutualFirst Financial nor any MutualFirst Financial Subsidiary has any obligations to provide retiree health, life insurance, or
disability insurance, or any retiree death benefits under any MutualFirst Financial Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the Code. There has been no communication to employees by MutualFirst Financial or
any MutualFirst Financial Subsidiary that would reasonably be expected to promise or guarantee such employees retiree health, life insurance, or disability insurance, or any retiree death benefits, other than as set forth in MutualFirst Financial Disclosure Schedule 4.13.5.
4.13.6 To the knowledge of MutualFirst Financial, neither MutualFirst Financial nor any MutualFirst Financial Subsidiary maintains any
MutualFirst Financial Compensation and Benefit Plans covering employees who are not United States residents.
4.13.7 With respect to each MutualFirst Financial Compensation and Benefit Plan, if applicable, MutualFirst Financial has provided or made
available to Northwest Bancshares copies of the: (A) trust instruments and insurance contracts; (B) most recent annual reports or IRS Form 5500; (C) most recent actuarial reports and financial statements; (D) most recent summary plan description;
(E) most recent determination or opinion letter issued by the IRS; (F) any Form 5310 or Form 5330 filed with the IRS within the last three years; and (G) most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and
401(m) tests).
4.13.8 Except as provided in MutualFirst Financial Disclosure
Schedule 4.13.8, or as otherwise provided in this Agreement, the consummation of the Merger will not, directly or indirectly (including, without limitation, as a result of any termination of employment or service at any time prior to
or following the Effective Time) (A) entitle any employee, consultant or director to any payment or benefit (including severance pay, change in control benefit, or similar compensation) or any increase in compensation (other than in such person’s
capacity as a shareholder), (B) entitle any employee or independent contractor to terminate any plan, agreement or arrangement without cause or good reason and continue to accrue future benefits thereunder, or result in the vesting or acceleration
of any benefits under any MutualFirst Financial Compensation and Benefit Plan, (C) result in any material increase in benefits payable under any MutualFirst Financial Compensation and Benefit Plan, or (D) entitle any current or
29
former employee, director or independent contractor of MutualFirst Financial or any MutualFirst
Financial Subsidiary to any actual or deemed payment (or benefit) which could constitute a “parachute payment” (as such term is defined in Section 280G of the Code).
4.13.9 Except as set forth in MutualFirst Financial Disclosure
Schedule 4.13.9, neither MutualFirst Financial nor any MutualFirst Financial Subsidiary maintains any compensation plans, programs or arrangements under which any payment is reasonably likely to become non-deductible, in whole or in
part, for tax reporting purposes as a result of the limitations under Section 162(m) of the Code and the regulations issued thereunder.
4.13.10 All deferred compensation plans, programs or arrangements have (i) been operated in all material respects in good faith compliance with
Section 409A of the Code, the Treasury Regulations and other guidance issued thereunder, and (ii) since January 1, 2009 (or such later date permitted under applicable guidance), been in documentary compliance in all material respects with Section
409A of the Code and IRS regulations and guidance thereunder. All MutualFirst Financial Stock Options and MutualFirst Financial stock appreciation
rights granted by MutualFirst Financial to any current or former employee or director have been granted with a per share exercise price or reference price at least equal to the fair market value of the underlying stock on the date the option or
stock appreciation right was granted, within the meaning of Section 409A of the Code and associated guidance.
4.13.11 Except for the MutualFirst Financial Stock Options and MutualFirst Financial stock appreciation rights, which are set forth in MutualFirst Financial Disclosure Schedule 4.13.11, there are no stock options, stock appreciation or similar rights, earned dividends or dividend equivalents, or shares
of restricted stock, or other equity compensation awards outstanding under any of the MutualFirst Financial Compensation and Benefit Plans or otherwise as of the date hereof.
4.13.12 Since December 31, 2018, through and including the date of this Agreement, except as set forth in the MutualFirst Financial Disclosure Schedule 4.13.12, neither MutualFirst Financial nor any MutualFirst Financial Subsidiary has, except for (A) normal increases for employees made in the ordinary
course of business consistent with past practice, or (B) as required by applicable law, increased the wages, salaries, compensation, pension, or other fringe benefits or perquisites payable to any executive officer, employee, or director from the
amount thereof in effect as of December 31, 2018 (which amounts have been previously made available to Northwest Bancshares), granted any severance or termination pay, entered into any contract to make or grant any severance or termination pay
(except as required under the terms of agreements or severance plans listed on MutualFirst Financial Disclosure Schedule 4.13.1, as in effect as of the date
hereof), or paid any bonus other than the customary year-end bonuses in amounts consistent with past practice.
4.13.13 MutualFirst Financial Disclosure Schedule 4.13.13
sets forth the estimated payments that would be required to be made under the employment agreements and change in control agreements between MutualFirst Financial or MutualBank and each of the individuals who is party to such an agreement, assuming that a change in control and a termination of employment had occurred as of March 31, 2020. MutualFirst
Financial Disclosure Schedule 4.13.13 also lists the estimated amounts payable to any
employee, officer, or director of MutualFirst Financial or any MutualFirst Financial Subsidiary under any MutualFirst Financial Non-Qualified Agreement assuming a change in control and termination of employment as of March 31, 2020.
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4.14.1. Neither MutualFirst Financial nor any MutualFirst Financial Subsidiary, nor any MutualFirst Financial Representative, has employed any
broker, finder or financial advisor in connection with the transactions contemplated by this Agreement, or incurred any liability or commitment for any fees or commissions to any such person in connection with the transactions contemplated by this
Agreement except for the engagement letter with Xxxxx, Xxxxxxxx & Xxxxx, Inc. (“KBW”), a copy of which has been previously delivered to Northwest Bancshares.
4.14.2. The Board of Directors of MutualFirst Financial has received the opinion (which, if initially rendered verbally, has been or will be
confirmed by a written opinion, dated the same date) of KBW to the effect that, as of the date of such opinion and subject to the assumptions, limitations and qualifications set forth therein, the Exchange Ratio in the Merger is fair, from a
financial point of view, to the holders of MutualFirst Financial Common Stock. Such opinion has not been amended or rescinded as of the date of this Agreement.
4.15.1. With respect to MutualFirst Financial and each MutualFirst Financial Subsidiary, except as set forth on MutualFirst Financial Disclosure Schedule 4.15.1:
(A) To the Knowledge of MutualFirst Financial, neither the conduct nor operation of its business nor any condition of any
property currently or previously owned or operated by it (including Participation Facilities and Other Real Estate Owned) results or resulted in a violation of any Environmental Laws that is reasonably likely to impose a material liability
(including a material remediation obligation) upon MutualFirst Financial or any MutualFirst Financial Subsidiary. To the Knowledge of MutualFirst Financial, no condition has existed or event has occurred with respect to any such property that,
with notice or the passage of time, or both, is reasonably likely to result in any material liability to MutualFirst Financial or any MutualFirst Financial Subsidiary by reason of any Environmental Laws. Neither MutualFirst Financial nor any
MutualFirst Financial Subsidiary during the past five years has received any written notice from any Person or Governmental Entity that MutualFirst Financial or any MutualFirst Financial Subsidiary or the operation or condition of any property ever
owned or operated (including Participation Facilities) by any of them are currently in violation of or otherwise are alleged to have liability under any Environmental Laws or relating to Materials of Environmental Concern (including, but not
limited to, responsibility (or potential responsibility) for the cleanup or other remediation of any Materials of Environmental Concern at, on, beneath, or originating from any such property) for which a material liability is reasonably likely to
be imposed upon MutualFirst Financial or any MutualFirst Financial Subsidiary;
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(B) There is no suit, written claim, action, demand, executive or administrative order, directive, investigation, or proceeding
pending or, to the Knowledge of MutualFirst Financial threatened, before any court, governmental agency or other forum against MutualFirst Financial or any MutualFirst Financial Subsidiary (i) for alleged noncompliance (including by any
predecessor) with, or liability under, any Environmental Law or (ii) relating to the presence of or release into the environment of any Materials of Environmental Concern (as defined herein), whether or not occurring at or on a site owned, leased
or operated by MutualFirst Financial or any MutualFirst Financial Subsidiary (including Participation Facilities and Other Real Estate Owned); and
(C) To the Knowledge of MutualFirst Financial, (i) there are no underground storage tanks on, in or under any properties owned
or operated by MutualFirst Financial or any MutualFirst Financial Subsidiary (including Participation Facilities and Other Real Estate Owned), and (ii) no underground storage tanks have been closed or removed from any properties owned or operated
by MutualFirst Financial or any MutualFirst Financial Subsidiary (including Participation Facilities and Other Real Estate Owned) except in compliance with Environmental Laws in all material respects.
(D) To MutualFirst Financial’s Knowledge, the properties currently owned or operated by MutualFirst Financial or any
MutualFirst Financial Subsidiary (including, without limitation, soil, groundwater or surface water on or under the properties, and buildings thereon) are not contaminated with and do not otherwise contain any Materials of Environmental Concern
other than as permitted under applicable Environmental Law.
4.16.1. The allowance for loan losses reflected in the MutualFirst Financial Financial Statements as of September 30, 2019 was, and the
allowance for loan losses reflected in the MutualFirst Financial Regulatory Reports for periods ending after September 30, 2019 were or will be, adequate, as of the dates thereof, under GAAP in all material respects.
4.16.2. MutualFirst Financial Disclosure Schedule 4.16.2
sets forth a listing, as of September 30, 2019, by account, of: (i) all current loan commitments of MutualFirst Financial or any MutualFirst Financial Subsidiary, including the material terms of such commitment, (ii) each borrower which has
notified MutualFirst Financial or any MutualFirst Financial Subsidiary during three years preceding the date of this Agreement, or has asserted against MutualFirst Financial or any MutualFirst Financial Subsidiary, in each case in writing, any
“lender liability” or similar claim, and, to the Knowledge of MutualFirst Financial, each borrower which has given MutualFirst Financial or any MutualFirst Financial Subsidiary any oral notification of, or orally asserted to or against MutualFirst
Financial or any MutualFirst Financial Subsidiary, any such claim; (iii) all loans, (A) that are contractually past due 90 days or more in the payment of principal and/or interest, (B) that are on non-accrual status, (C) that are as of the date of
this Agreement classified as “substandard,” “doubtful,” “loss,” “classified,” “criticized,” “watch list” or “special mention” (or words of similar import) by MutualFirst Financial and any MutualFirst Financial Subsidiary, or any applicable Bank
Regulator, (D) to the Knowledge of MutualFirst Financial, as to which a reasonable doubt exists as to the timely future collectability of principal
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and/or interest, whether or not interest is still accruing or the loans are less than 90 days
past due, (E) where a specific reserve allocation exists in connection therewith, or (F) that are required to be accounted for as a troubled debt restructuring in accordance with Accounting Standards Codification 310-40; and (iv) all assets
classified by MutualFirst Financial or any MutualFirst Financial Subsidiary as real estate acquired through foreclosure or in lieu of foreclosure, including in-substance foreclosures, and all other assets currently held that were acquired through
foreclosure or in lieu of foreclosure.
4.16.3. To the knowledge of MutualFirst Financial, all loans receivable (including discounts) and accrued interest entered on the books of
MutualFirst Financial and the MutualFirst Financial Subsidiaries arose out of bona fide arm’s-length transactions, were made for good and valuable consideration in the ordinary course of MutualFirst Financial’s or the appropriate MutualFirst
Financial Subsidiary’s respective business. MutualFirst Financial has not received written notice that any of the loans, discounts and the accrued interest reflected on the books of MutualFirst Financial and the MutualFirst Financial Subsidiaries
are subject to any defenses, set-offs or counterclaims (including, without limitation, those afforded by usury or truth-in-lending laws), except as may be provided by bankruptcy, insolvency or similar laws affecting creditors’ rights generally or
by general principles of equity. All such loans are owned by MutualFirst Financial or the appropriate MutualFirst Financial Subsidiary free and clear of any liens, except for loans pledged as security for borrowings from the FHLB of Indianapolis.
4.16.4. The notes and other evidences of indebtedness evidencing the loans described above, and all pledges, mortgages, deeds of trust and
other collateral documents or security instruments relating thereto are, in all material respects, valid, true and genuine, and what they purport to be and are accurately reflected on the books and records of MutualBank.
4.16.5. MutualFirst Financial and each MutualFirst Financial Subsidiary have good and marketable title to all securities owned by them, except
for those securities sold under repurchase agreements, security deposits, borrowings of federal funds or borrowings from the FRB or an FHLB or held in any fiduciary or agency capacity, free and clear of any liens, except to the extent such
securities are pledged in the ordinary course of business to secure obligations of MutualFirst Financial or a MutualFirst Financial Subsidiary. Such securities are valued on the books of MutualFirst Financial in accordance with GAAP in all
material respects. MutualFirst Financial and each MutualFirst Financial Subsidiary that owns securities employ investment, securities, risk management and other policies, practices and procedures which MutualFirst Financial believes are prudent
and reasonable.
MutualFirst Financial has made available to Northwest Bancshares copies of (i) its annual reports to
stockholders for the years ended December 31, 2018, 2017 and 2016, and (ii) proxy materials used or for use in connection with its meetings of stockholders held in 2019, 2018 and 2017.
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Except as set forth in MutualFirst
Financial Disclosure Schedule 4.18, neither MutualFirst Financial nor any MutualFirst Financial Subsidiary is a party to any transaction (including any loan or other credit accommodation) with any Affiliate of MutualFirst Financial or
any MutualFirst Financial Subsidiary. Except as described in MutualFirst Financial’s Disclosure Schedule 4.18, all such transactions (a) were made in the ordinary
course of business, (b) were made on substantially the same terms, including interest rates and collateral, as those prevailing at the time for comparable transactions with other Persons, and (c) did not involve more than the normal risk of
collectability or present other unfavorable features. No loan or credit accommodation to any Affiliate of MutualFirst Financial or any MutualFirst Financial Subsidiary is presently in default or, during the three year period prior to the date of this
Agreement, has been in default or has been restructured, modified or extended except for rate modifications pursuant to MutualFirst Financial’s loan modification policy that is applicable to all Persons. Neither MutualFirst Financial nor any
MutualFirst Financial Subsidiary has been notified that principal and interest with respect to any such loan or other credit accommodation will not be paid when due or that the loan grade classification accorded such loan or credit accommodation by
MutualFirst Financial is inappropriate.
Except as set forth in MutualFirst
Financial Disclosure Schedule 4.19, none of the deposits of MutualFirst Financial is a “brokered deposit” as defined in 12 C.F.R. Section 337.6(a)(2).
The transactions contemplated by this Agreement are not subject to the requirements of any
“moratorium,” “control share,” “fair price,” “affiliate transactions,” “business combination” or other antitakeover laws and regulations of the State of Maryland, including the provisions of the MGCL applicable to MutualFirst Financial.
The affirmative vote of the majority of the issued and outstanding shares of MutualFirst Financial
Common Stock is required to approve this Agreement and the Merger under the MGCL and MutualFirst Financial’s articles of incorporation.
Neither MutualFirst Financial nor any MutualFirst Financial Subsidiary is under any obligation,
contingent or otherwise, which will survive the Effective Time by reason of any agreement to register any transaction involving any of its securities under the Securities Act.
All material interest rate swaps, caps, floors, option agreements, futures and forward contracts and
other similar risk management arrangements, whether entered into for MutualFirst Financial’s own account, or for the account of one or more of MutualFirst Financial’s Subsidiaries or their customers (all of which are set forth in MutualFirst Financial Disclosure
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Schedule 4.22),
were in all material respects entered into in compliance with all applicable laws, rules, regulations and regulatory policies, and to the Knowledge of MutualFirst Financial and each MutualFirst Financial Subsidiary, with counterparties believed to be
financially responsible at the time; and to MutualFirst Financial’s and each MutualFirst Financial Subsidiary’s Knowledge each of them constitutes the valid and legally binding obligation of MutualFirst Financial or such MutualFirst Financial
Subsidiary, enforceable in accordance with its terms (except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting
creditors’ rights or by general equity principles), and is in full force and effect. Neither MutualFirst Financial nor any MutualFirst Financial Subsidiary, nor, to the Knowledge of MutualFirst Financial, any other party thereto, is in breach of any
of its obligations under any such agreement or arrangement in any material respect.
4.23.1. MutualFirst Financial and each MutualFirst Financial Subsidiary owns or, to MutualFirst Financial’s Knowledge, possesses valid and
binding licenses or other rights (subject to expirations in accordance with their terms) to use all patents, copyrights, trade secrets, trade names, servicemarks and trademarks used in their business, each without payment, and neither MutualFirst
Financial nor any MutualFirst Financial Subsidiary has received any notice of conflict with respect thereto that asserts the rights of others. MutualFirst Financial and each MutualFirst Financial Subsidiary have performed all the obligations
required to be performed, and are not in default in any respect, under any contract, agreement, arrangement or commitment relating to any of the foregoing. To the Knowledge of MutualFirst Financial, the conduct of the business of MutualFirst
Financial and each MutualFirst Financial Subsidiary as currently conducted does not, in any respect, infringe upon, dilute, misappropriate or otherwise violate any intellectual property owned or controlled by any third party.
4.23.2. To the MutualFirst Financial’s Knowledge, all information technology and computer systems (including software, information technology
and telecommunication hardware and other equipment) relating to the transmission, storage, maintenance, organization, presentation, generation, processing or analysis of data and information, whether or not in electronic format, used in or
necessary to the conduct of the business of the MutualFirst Financial or MutualBank (collectively, the “MutualFirst IT Systems”) have been properly
maintained by technically competent personnel, in accordance with standards set by the manufacturers or otherwise in accordance with standards in the industry, to ensure proper operation, monitoring and use. The MutualFirst IT Systems are in good
working condition to effectively perform all information technology operations necessary to conduct MutualFirst Financial’s consolidated business as currently conducted. Neither MutualFirst Financial nor MutualBank has experienced within the past
two years any material disruption to, or material interruption in, the conduct of its business attributable to a defect, bug, breakdown or other failure or deficiency of the MutualFirst IT Systems. To the knowledge of MutualFirst Financial, no Person has gained unauthorized access to any of the MutualFirst IT Systems that has had, or is
reasonably expected to have, a Material Adverse Effect on MutualFirst Financial. MutualFirst Financial and MutualBank have taken reasonable measures to provide for the
back-up and recovery of the data and information necessary to the conduct of their businesses without material disruption to, or material interruption in, the conduct of their respective businesses.
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MutualFirst Financial and the MutualFirst Financial Subsidiaries are compliant in all material respects with all data protection and privacy laws and regulations as well as their own policies relating to data protection and the privacy and security of personal
data and the non-public personal information of their respective customers and employees, except for immaterial failures to comply or immaterial violations.
MutualFirst Financial and any MutualFirst Financial Subsidiary has properly administered all accounts
for which it acts as a fiduciary, including but not limited to accounts for which it serves as trustee, agent, custodian, personal representative, guardian, conservator or investment advisor, in accordance with the terms of the governing documents
and applicable laws and regulations. Neither MutualFirst Financial nor any MutualFirst Financial Subsidiary, nor, to the Knowledge of MutualFirst Financial, any of their respective directors, officers or employees, have committed any breach of trust
with respect to any such fiduciary account or the records for each such fiduciary account.
4.25.1. MutualFirst Financial and the MutualFirst Financial Subsidiaries are in material compliance with all applicable laws respecting
employment, retention of independent contractors, employment practices, terms and conditions of employment, and wages and hours. Neither MutualFirst Financial nor any of the MutualFirst Financial Subsidiaries is or has ever been a party to, or is
or has ever been bound by, any collective bargaining agreement, contract or other agreement or understanding with a labor union or labor organization with respect to its employees, nor is MutualFirst Financial or any of the MutualFirst Financial
Subsidiaries the subject of any proceeding asserting that it has committed an unfair labor practice or seeking to compel it or any of the MutualFirst Financial Subsidiaries to bargain with any labor organization as to wages and conditions of
employment nor, to the Knowledge of MutualFirst Financial, has any such proceeding been threatened, nor is there any strike, other labor dispute or organizational effort involving MutualFirst Financial or any of the MutualFirst Financial
Subsidiaries pending or, to the Knowledge of MutualFirst Financial, threatened.
4.25.2. MutualFirst Financial Disclosure Schedule 4.25.2 identifies (A) all present employees (including any leased or temporary employees) of
MutualFirst Financial and the MutualFirst Financial Subsidiaries and any consultants or independent contractors providing services to MutualFirst Financial or any of the MutualFirst Financial Subsidiaries; (B) each employee’s date of hire and
current rate of compensation; and (C) each employee’s accrued vacation, sick leave or personal leave if applicable. MutualFirst Financial’s Disclosure Schedule also names any employee who is absent from work due to a leave of absence (including,
but not limited to, in accordance with the requirements of the Family and Medical Leave Act or the Uniformed Services Employment and Reemployment Rights Act) or a work-related injury, or who is receiving workers’ compensation or disability
compensation. There are no unpaid wages, bonuses or commissions owed to any employee (other than those not yet due).
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Northwest Bancshares represents and warrants to MutualFirst Financial that the statements contained
in this Article V are correct as of the date of this Agreement and will be correct as of the Closing Date (as though made then and as though the Closing Date were substituted for the date of this Agreement throughout this Article V), except as set
forth in the Northwest Bancshares Disclosure Schedule delivered by Northwest Bancshares to MutualFirst Financial on the date hereof, and except as to any
representation or warranty which specifically relates to an earlier date. Northwest Bancshares has made a good faith effort to ensure that the disclosure on each schedule of the Northwest Bancshares Disclosure Schedule corresponds to the section
referenced herein. However, for purposes of the Northwest Bancshares Disclosure Schedule, any item disclosed on any schedule therein is deemed to be fully disclosed with respect to all sections of this Agreement under which such item may be relevant
as and to the extent that it is reasonably clear on the face of such schedule that such item applies to such other sections of this Agreement.
No representation or warranty of Northwest Bancshares contained in this Article V will be deemed
untrue or incorrect, and Northwest Bancshares will not be deemed to have breached a representation or warranty, as a consequence of the existence of any fact, circumstance or event unless such fact, circumstance or event, individually or taken
together with all other facts, circumstances or events inconsistent with any paragraph of Article V, has had or is reasonably expected to have a Material Adverse Effect; disregarding for these purposes (x) any qualification or exception for, or
reference to, materiality in any such representation or warranty and (y) any use of the terms “material,” “materially,” “in all material respects,” “Material Adverse Effect” or similar terms or phrases in any such representation or warranty;
provided, however, that the foregoing standard shall not apply to representations and warranties contained in Sections 5.2, 5.3, 5.4, 5.8 and 5.17, which shall be deemed untrue, incorrect and breached if they are not true and correct in all material
respects.
5.2.1. Northwest Bancshares is a corporation duly organized, validly existing and in good standing under the laws of the State of Maryland, and
is duly registered as a savings and loan holding company under the HOLA. Northwest Bancshares has full corporate power and authority to own or lease all of its properties and assets and to carry on its business as it is now being conducted and is
duly licensed or qualified to do business and is in good standing in each jurisdiction in which the nature of the business conducted by it or the character or location of the properties and assets owned or leased by it makes such licensing or
qualification necessary, except where the failure to be so licensed, qualified or in good standing would not have a Material Adverse Effect on Northwest Bancshares.
5.2.2. Northwest Bank is a Pennsylvania chartered savings bank duly organized, validly existing and in good standing under the laws of the
Commonwealth of Pennsylvania. The deposits of Northwest Bank are insured by the FDIC to the fullest extent permitted by law, and all premiums and assessments required to be paid in connection therewith have been paid when due. Northwest Bank is a
member in good standing of the FHLB of Pittsburgh and owns the requisite amount of stock therein. The location of the principal office and each branch office of Northwest Bank is set forth in Northwest Bancshares Disclosure Schedule 5.2.2.
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5.2.3. Northwest Bancshares Disclosure Schedule 5.2.3 sets
forth each Northwest Bancshares Subsidiary. Each Northwest Bancshares Subsidiary (other than Northwest Bank) is a corporation, limited liability company or other legal entity duly organized, validly existing and in good standing under the laws of
its jurisdiction of incorporation or organization.
5.2.4. The respective minute books of Northwest Bancshares and each Northwest Bancshares Subsidiary accurately record, in all material
respects, all material corporate actions of their respective stockholders and boards of directors (including committees).
5.2.5. Prior to the date of this Agreement, Northwest Bancshares has made available to MutualFirst Financial true and correct copies of the
articles of incorporation or charter and bylaws of Northwest Bancshares and each other Northwest Bancshares Subsidiary.
5.3.1. The authorized capital stock of Northwest Bancshares consists of five hundred million (500,000,000) shares of Northwest Bancshares
Common Stock, $0.01 par value, of which one hundred six million, six hundred sixty-seven thousand, one hundred two (106,667,102) shares are outstanding, validly issued, fully paid and nonassessable and free of preemptive rights, and fifty million
(50,000,000) shares of preferred stock, $0.01 par value (“Northwest Bancshares Preferred Stock”), none of which are outstanding. There are no shares of Northwest Bancshares Common Stock held by Northwest Bancshares as treasury stock. Neither
Northwest Bancshares nor any Northwest Bancshares Subsidiary has or is bound by any Rights of any character relating to the purchase, sale or issuance or voting of, or right to receive dividends or other distributions on any shares of Northwest
Bancshares Common Stock, or any other security of Northwest Bancshares or any securities representing the right to vote, purchase or otherwise receive any shares of Northwest Bancshares Common Stock or any other security of Northwest Bancshares,
other than (i) shares issuable under the Northwest Bancshares Stock Benefit Plan; (ii) trust preferred securities (“Northwest Trust Preferred Securities”) issued by Northwest Bancorp Capital Trust III, Northwest Bancorp Statutory Trust IV, LNB
Trust II, Union National Capital Trust I and Union National Capital Trust II (together, the “Northwest Trusts”); and (iii) the guarantee by Northwest Bancorp to the holders of the capital securities issued by the Northwest Trusts.
5.3.2. The authorized capital stock of Northwest Bank consists solely of fifty million (50,000,000) shares of common stock, par value $0.10 per
share (“Northwest Bank Common Stock”) and ten million (10,000,000) shares of preferred stock, $0.10 par value (“Northwest Bank Preferred Stock”). All of the issued and outstanding shares of Northwest Bank Common Stock are (i) validly issued, fully
paid and nonassessable and free of preemptive rights, and (ii) owned by Northwest Bancshares free and clear of any liens, encumbrances, charges, restrictions or rights of third parties of any kind whatsoever. Either Northwest Bancshares or
Northwest Bank owns all of the outstanding shares of capital stock of each Northwest Bancshares Subsidiary free and clear of all liens, security interests, pledges, charges, encumbrances, agreements and restrictions of any kind or nature.
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5.3.3. Except as set forth in Northwest Bancshares Disclosure
Schedule 5.3.3, to the Knowledge of Northwest Bancshares, no Person is the beneficial owner (as defined in Section 13(d) of the Exchange Act) of 5% or more of the outstanding shares of Northwest Bancshares Common Stock, except for
equity interests held in the investment portfolios of Northwest Bancshares or any Northwest Bancshares Subsidiary, equity interests held by any Northwest Bancshares Subsidiary in a fiduciary capacity and equity interests held in connection with the
lending activities of Northwest Bancshares or its Subsidiaries.
5.3.4. No bonds, debentures, notes or other indebtedness having the right to vote on any matters on which Northwest Bancshares’ stockholders
may vote has been issued by Northwest Bancshares and are outstanding.
5.4.1. Northwest Bancshares has full corporate power and authority to execute and deliver this Agreement and, subject to receipt of the
required Regulatory Approvals and the Northwest Bancshares Stockholder Approval, to consummate the transactions contemplated hereby. The execution and delivery of this Agreement by Northwest Bancshares and the completion by Northwest Bancshares of
the transactions contemplated hereby, up to and including the Merger, have been duly and validly approved by the Board of Directors of Northwest Bancshares, and no other corporate proceedings on the part of Northwest Bancshares other than the
Northwest Bancshares Stockholder Approval are necessary to approve this Agreement. This Agreement has been duly and validly executed and delivered by Northwest Bancshares, and subject to MutualFirst Financial Stockholder Approval, Northwest
Bancshares Stockholder Approval, receipt of the Regulatory Approvals and due and valid execution and delivery of this Agreement by MutualFirst Financial, constitutes the valid and binding obligation of Northwest Bancshares, enforceable against
Northwest Bancshares in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity.
5.4.2. Subject to the receipt of the Regulatory Approvals, and compliance by MutualFirst Financial and Northwest Bancshares with any conditions
contained therein, Northwest Bancshares Stockholder Approval and MutualFirst Stockholder Approval,
(A) the execution and delivery of this Agreement by Northwest Bancshares,
(B) the consummation of the transactions contemplated hereby, and
(C) compliance by Northwest Bancshares with any of the terms or provisions hereof
will not (i) conflict with or result in a breach of any provision of the Articles of Incorporation or Bylaws of
Northwest Bancshares or any Northwest Bancshares Subsidiary; (ii) violate any statute, code, ordinance, rule, regulation, judgment, order, writ, decree or injunction applicable to Northwest Bancshares or any Northwest Bancshares Subsidiary or any of
their respective properties or assets; or (iii) violate, conflict with, result in a breach of any provisions of,
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constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default),
under, result in the termination of, accelerate the performance required by, or result in a right of termination or acceleration or the creation of any lien, security interest, charge or other encumbrance upon any of the properties or assets of
Northwest Bancshares or any Northwest Bancshares Subsidiary under any of the terms, conditions or provisions of any note, bond, mortgage, indenture, deed of trust, license, lease, agreement or other investment or obligation to which any of them is a
party, or by which they or any of their respective properties or assets may be bound or affected, except for such violations, conflicts, breaches or defaults under clause (ii) or (iii) hereof which, either individually or in the aggregate, will not
have a Material Adverse Effect on Northwest Bancshares and the Northwest Bancshares Subsidiaries taken as a whole.
Except for (i) the Regulatory Approvals and compliance with any conditions contained therein, (ii)
the filing with the SEC of (x) the Merger Registration Statement and (y) such reports under Securities Laws as may be required in connection with this Agreement and the transactions contemplated hereby and the obtaining from the SEC of such orders as
may be required in connection therewith, (iii) approval of the listing on the Nasdaq of Northwest Bancshares Common Stock to be issued in the Merger, (iv) such filings and approvals as are required to be made or obtained under the securities or “Blue
Sky” laws of various states in connection with the issuance of the shares of Northwest Bancshares Common Stock pursuant to this Agreement, (v) Northwest Bancshares Stockholder Approval, and (vi) the MutualFirst Financial Stockholder Approval, no
consents, waivers or approvals of, or filings or registrations with, any Governmental Entity or Bank Regulator are necessary, and, to the Knowledge of Northwest Bancshares, no consents, waivers or approvals of, or filings or registrations with, any
other third parties are necessary in connection with the execution and delivery of this Agreement by Northwest Bancshares and the completion by Northwest Bancshares of the Merger. To the Knowledge of Northwest Bancshares, no fact or circumstance
exists, including any possible other transaction pending or under consideration by Northwest Bancshares or any of its Affiliates, that (a) would reasonably be expected to prevent or delay in any material respect, (i) any filings with or approvals or
waivers required from the FRB, the FDIC, the Indiana Department or the Pennsylvania Department, or (ii) any required Regulatory Approvals, or (b) would cause a Bank Regulator or Governmental Entity acting pursuant to the Bank Merger Act, the BHCA,
the Pennsylvania Code, the Indiana Code or any other applicable law or regulation to seek to prohibit or materially delay consummation of the transactions contemplated hereby or impose a Burdensome Condition.
5.6.1. Northwest Bancshares has previously made available to MutualFirst Financial the Northwest Bancshares Financial Statements. The
Northwest Bancshares Financial Statements have been prepared in accordance with GAAP, and (including the related notes where applicable) fairly present in each case in all material respects (subject in the case of the unaudited interim statements
to normal year-end adjustments) the consolidated financial position, results of operations and cash flows of Northwest Bancshares and the Northwest Bancshares Subsidiaries on a consolidated basis as of and for the respective periods ending on the
dates thereof, in accordance with GAAP during the periods involved, except as indicated in the notes thereto, or in the case of unaudited statements, as permitted by Form 10-Q.
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5.6.2. At the date of each balance sheet included in the Northwest Bancshares Financial Statements, Northwest Bancshares did not have any
liabilities, obligations or loss contingencies of any nature (whether absolute, accrued, contingent or otherwise) of a type required to be reflected in such Northwest Bancshares Financial Statements or in the footnotes thereto which are not
reflected or reserved against therein in accordance with GAAP or appropriately disclosed in a footnote thereto, except for liabilities, obligations and loss contingencies which are not material individually or in the aggregate or which are incurred
in the ordinary course of business, consistent with past practice, and except for liabilities, obligations and loss contingencies which are within the subject matter of a specific representation and warranty herein and subject, in the case of any
unaudited statements, to normal, recurring audit adjustments and the absence of footnotes.
5.6.3. Northwest Bancshares (x) has implemented and maintains a system of internal control over financial reporting (as required by Rule
13a-15(a) of the Exchange Act) that is designed to provide reasonable assurances regarding the reliability of financial reporting and the preparation of its financial statements for external purposes in accordance with GAAP and to provide
reasonable assurances that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in accordance with GAAP and to
maintain accountability for assets and (iii) access to assets is permitted only in accordance with management’s general or specific authorization, (y) has implemented and maintains disclosure controls and procedures (as defined in Rule 13a-15(e) of
the Exchange Act) to ensure that material information relating to Northwest Bancshares, including its consolidated Subsidiaries, is made known to the chief executive officer and the chief financial officer of Northwest Bancshares by others within
those entities, and (z) has disclosed, based on its most recent evaluation prior to the date hereof, to Northwest Bancshares outside auditors and the audit committee of the Northwest Bancshares Board of Directors (i) any significant deficiencies
and material weaknesses in the design or operation of internal control over financial reporting (as defined in Rule 13a-15(f) of the Exchange Act) which are reasonably likely to adversely affect Northwest Bancshares’ ability to record, process,
summarize and report financial information and (ii) any fraud, whether or not material, that involves management or other employees who have a significant role in Northwest Bancshares’ internal control over financial reporting. These disclosures
(if any) were made in writing by management to Northwest Bancshares’ auditors and audit committee and a copy has previously been made available to MutualFirst Financial.
5.6.4. Since December 31, 2018, (A) neither Northwest Bancshares nor any Northwest Bancshares Subsidiary nor, to its Knowledge, any director,
officer, employee, auditor, accountant or representative of Northwest Bancshares or any Northwest Bancshares Subsidiary has received or otherwise had or obtained knowledge of any material complaint, allegation, assertion or claim, whether written
or oral, regarding the accounting or auditing practices, procedures, methodologies or methods of Northwest Bancshares or any Northwest Bancshares Subsidiary or their respective internal accounting controls, including any material complaint,
allegation, assertion or claim that Northwest Bancshares or any Northwest Bancshares
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Subsidiary has engaged in questionable accounting or auditing practices, and (B) no attorney
representing Northwest Bancshares or any Northwest Bancshares Subsidiary, whether or not employed by Northwest Bancshares or any Northwest Bancshares Subsidiary, has reported evidence of a material violation of securities laws, breach of fiduciary
duty or similar violation by it or any of its officers, directors, employees or agents to its Board of Directors or any committee thereof or to any of its directors or officers.
5.6.5. Northwest Bancshares has filed all reports, schedules, registration statements, prospectuses, and other documents, together with all
amendments thereto, required to be filed with the SEC since December 31, 2018 (the “Northwest Reports”). As of their respective dates of filing with the SEC (or, if amended or superseded by a subsequent filing prior to the date hereof, as of the
date of such subsequent filing), the Northwest Reports complied, and each Northwest Report filed subsequent to the date hereof and prior to the Effective Time will comply, in all material respects with the applicable requirements of the Securities
Act, the Exchange Act, the Xxxxxxxx-Xxxxx Act, and the Xxxx-Xxxxx Act, and did not or will not, as the case may be, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were made, not misleading. There are no outstanding comments from, or unresolved issues raised by, the SEC with respect to any of the Northwest Reports. None of the Northwest
Bancshares Subsidiaries is required to file periodic reports with the SEC pursuant to Section 13 or 15(d) of the Exchange Act. No executive officer of Northwest Bancshares has failed in any respect to make the certifications required of him or her
under Section 302 or 906 of the Xxxxxxxx-Xxxxx Act and to the Knowledge of Northwest Bancshares no enforcement action has been initiated by the SEC against Northwest Bancshares or its officers or directors relating to disclosures contained in any
Northwest Report.
5.6.6. Except as disclosed in Northwest Bancshares Disclosure
Schedule 5.6.6, Northwest Bancshares and each Northwest Bancshares Subsidiary has timely filed all reports, forms, schedules, registrations, statements and other documents, together with any amendments required to be made with
respect thereto, that it was required to file since December 31, 2018 with any Governmental Entity and has paid all fees and assessments due and payable in connection therewith. The Northwest Bancshares Regulatory Reports, to the extent they
contain financial information, have been prepared in all material respects in accordance with applicable regulatory accounting principles and practices throughout the periods covered by such statements.
Northwest Bancshares and the Northwest Bancshares Subsidiaries are members of the same affiliated
group within the meaning of Code Section 1504(a). With respect to all tax years ending after January 1, 2012, Northwest Bancshares and each Northwest Bancshares Subsidiary has duly filed, on or prior to the date of this Agreement, and will duly file,
on or prior to the Closing Date, all federal, state and local tax returns required to be filed by or with respect to Northwest Bancshares and each Northwest Bancshares Subsidiary, taking into account any extensions (all such returns, to the Knowledge
of Northwest Bancshares, being complete and correct in all material respects) and has duly paid, or made provisions for the payment of, on or prior to the date of this Agreement, and will duly pay or make provisions for, on or prior to the
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Closing Date, all material federal, state and local taxes which have been incurred by or are due or claimed to
be due from Northwest Bancshares and any Northwest Bancshares Subsidiary by any taxing authority or pursuant to any written tax sharing agreement on or prior to the Closing Date other than taxes or other charges that (i) are not delinquent, (ii) are
being contested in good faith, or (iii) have not yet been fully determined. As of the date of this Agreement, Northwest Bancshares has received no notice of, and to the Knowledge of Northwest Bancshares, there is no audit examination, deficiency
assessment, tax investigation or refund litigation with respect to any taxes of Northwest Bancshares or any Northwest Bancshares Subsidiary, and no claim has been made by any authority in a jurisdiction where Northwest Bancshares or any Northwest
Bancshares Subsidiary does not file tax returns that Northwest Bancshares or any such Northwest Bancshares Subsidiary is subject to taxation in that jurisdiction. Except as set forth in Northwest Bancshares Disclosure Schedule 5.7, Northwest Bancshares and the Northwest Bancshares Subsidiaries have not executed an extension or waiver of any statute of limitations on the assessment or collection of
any material tax due that is currently in effect. Northwest Bancshares and each Northwest Bancshares Subsidiary has withheld and paid all taxes required to have been withheld and paid in connection with amounts paid or owing to any employee,
independent contractor, creditor, stockholder or other third party, and Northwest Bancshares and each Northwest Bancshares Subsidiary, to the Knowledge of Northwest Bancshares, has timely complied with all applicable information reporting
requirements under Part III, Subchapter A of Chapter 61 of the Code and similar applicable state and local information reporting requirements. Since December 31, 2018, through and including the date of this Agreement, neither Northwest Bancshares
nor any Northwest Bancshares Subsidiary has made any material election for federal or state income tax purposes.
Northwest Bancshares and the Northwest Bancshares Subsidiaries, taken as a whole, have not suffered
any Material Adverse Effect since December 31, 2018 and no event has occurred or circumstance arisen since that date which, in the aggregate, has had or is reasonably likely to have a Material Adverse Effect on Northwest Bancshares and the Northwest
Bancshares Subsidiaries, taken as a whole.
5.9.1. Northwest Bancshares and each Northwest Bancshares Subsidiary have good and, as to real property, marketable title to all material
assets and properties owned by Northwest Bancshares or each Northwest Bancshares Subsidiary in the conduct of its businesses, whether such assets and properties are real or personal, tangible or intangible, including assets and property reflected
in the balance sheets contained in the Northwest Bancshares Financial Statements or acquired subsequent thereto (except to the extent that such assets and properties have been disposed of in the ordinary course of business, since the date of such
balance sheets), subject to no material encumbrances, liens, mortgages, security interests or pledges, except (i) those items which secure liabilities for public or statutory obligations or any discount with, borrowing from or other obligations to
the FHLB of Pittsburgh, inter-bank credit facilities, reverse repurchase agreements or any transaction by Northwest Bancshares or a Northwest Bancshares Subsidiary acting in a fiduciary capacity, and (ii) statutory liens for amounts not yet
delinquent or which are being contested in good faith. Northwest Bancshares and each Northwest Bancshares Subsidiary, as lessee, have the right under valid and existing leases of real and personal properties used by Northwest Bancshares and the
Northwest Bancshares Subsidiaries in the conduct of their businesses to occupy or use all such properties as presently occupied and used by each of them.
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5.9.2. Northwest Bancshares and each Northwest Bancshares Subsidiary currently maintain insurance considered by Northwest Bancshares to be
reasonable for their respective operations. Neither Northwest Bancshares nor any Northwest Bancshares Subsidiary has received notice from any insurance carrier that such insurance will be canceled or that coverage thereunder will be reduced or
eliminated. All such insurance is valid and enforceable and in full force and effect, and within the last three years Northwest Bancshares and each Northwest Bancshares Subsidiary have received each type of insurance coverage for which they have
applied and during such periods have not been denied indemnification for any material claims submitted under any of their insurance policies.
Except as set forth in Northwest
Bancshares Disclosure Schedule 5.10, neither Northwest Bancshares nor any Northwest Bancshares Subsidiary is a party to any, and there are no pending or, to the Knowledge of Northwest Bancshares, threatened, material legal,
administrative, arbitration or other material proceedings, claims (whether asserted or unasserted), actions or governmental investigations or inquiries of any nature (i) against Northwest Bancshares or any Northwest Bancshares Subsidiary, (ii) to
which Northwest Bancshares or any Northwest Bancshares Subsidiary’s assets are or may be subject, (iii) challenging the validity or propriety of any of the transactions contemplated by this Agreement, or (iv) which could adversely affect the ability
of Northwest Bancshares to perform under this Agreement.
5.11.1. To the Knowledge of Northwest Bancshares, each of Northwest Bancshares and each Northwest Bancshares Subsidiary are in compliance in
all material respects with all applicable federal, state, local and foreign statutes, laws, regulations, ordinances, rules, judgments, orders or decrees applicable to them, their properties, assets and deposits, their business, and their conduct of
business and their relationship with their employees, including, without limitation, the USA PATRIOT Act, the Equal Credit Opportunity Act, the Fair Housing Act, the Community Reinvestment Act of 1977, the Home Mortgage Disclosure Act, the Bank
Secrecy Act and all other applicable fair lending laws and other laws relating to discriminatory business practices and neither Northwest Bancshares nor any Northwest Bancshares Subsidiary has received any written notice to the contrary. The Board
of Directors of Northwest Bank has adopted and Northwest Bank has implemented an anti-money laundering program that meets the requirements of Sections 352 and 326 of the USA PATRIOT Act and the regulations thereunder and has received no written
notice from any Governmental Entity or Bank Regulator that such program (i) does not contain adequate and appropriate customer identification verification procedures, or (ii) has been deemed ineffective.
5.11.2. Each of Northwest Bancshares and each Northwest Bancshares Subsidiary has all material permits, licenses, authorizations, orders and
approvals of, and has made all filings, applications and registrations with, all Bank Regulators and Governmental Entities that are required to permit it to own or lease its properties and to conduct its business as presently conducted; all such
permits, licenses, certificates of authority, orders and approvals are in full force and effect and, to the Knowledge of Northwest Bancshares, no suspension or cancellation of any such permit, license, certificate, order or approval is threatened
or will result from the consummation of the transactions contemplated by this Agreement, subject to obtaining the Regulatory Approvals.
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5.11.3. Except as set forth in Northwest Bancshares Disclosure
Schedule 5.11.3, for the period beginning January 1, 2018, neither Northwest Bancshares nor any Northwest Bancshares Subsidiary has received any written notification or, to the Knowledge of Northwest Bancshares, any other
communication from any Bank Regulator: (i) asserting that Northwest Bancshares or any Northwest Bancshares Subsidiary is not in material compliance with any of the statutes, regulations or ordinances which such Bank Regulator enforces; (ii)
threatening to revoke any license, franchise, permit or governmental authorization which is material to Northwest Bancshares or any Northwest Bancshares Subsidiary; (iii) requiring or threatening to require Northwest Bancshares or any Northwest
Bancshares Subsidiary, or indicating that Northwest Bancshares or any Northwest Bancshares Subsidiary may be required, to enter into a cease and desist order, agreement or memorandum of understanding or any other agreement with any federal or state
governmental agency or authority which is charged with the supervision or regulation of banks or engages in the insurance of bank deposits restricting or limiting, or purporting to restrict or limit, in any material respect the operations of
Northwest Bancshares or any Northwest Bancshares Subsidiary, including without limitation any restriction on the payment of dividends; or (iv) directing, restricting or limiting, or purporting to direct, restrict or limit, in any manner the
operations of Northwest Bancshares or any Northwest Bancshares Subsidiary, including without limitation any restriction on the payment of dividends (any such notice, communication, memorandum, agreement or order described in this sentence is
hereinafter referred to as a “Regulatory Agreement”). Neither Northwest Bancshares nor any Northwest Bancshares Subsidiary has consented to or entered into any currently effective Regulatory Agreement. The most recent regulatory rating given to
Northwest Bank as to compliance with the CRA is “Satisfactory.”
5.12.1 Northwest Bancshares Disclosure Schedule 5.12.1
includes a list of all existing bonus, incentive, deferred compensation, supplemental executive retirement plans, pension, retirement, profit-sharing, thrift, savings, employee stock ownership, stock bonus, stock purchase, restricted stock, stock
option, stock appreciation, phantom stock, severance, welfare benefit plans (including paid time off policies and other material benefit policies and procedures), fringe benefit plans, employment, consulting, settlement and change in control
agreements and all other material benefit practices, policies and arrangements maintained by Northwest Bancshares or any Northwest Bancshares Subsidiary in which any employee or former employee, consultant or former consultant or director or former
director participates or to which any such employee, consultant or director is a party or is otherwise entitled to receive benefits (each a “Northwest Bancshares Compensation and Benefit Plan”). Northwest Bancshares has made available to
MutualFirst Financial true and correct copies of the Northwest Bancshares Compensation and Benefit Plans.
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5.12.2 Each Northwest Bancshares Compensation and Benefit Plan has been operated and administered in all material respects in accordance with
its terms and, in all material respects, with applicable law, including, but not limited to, ERISA, the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act, COBRA, HIPAA and any regulations or rules promulgated
thereunder, and all material filings, disclosures and notices required by ERISA, the Code, the Securities Act, the Exchange Act, the Age Discrimination in Employment Act, COBRA and HIPAA and any other applicable law have been timely made or any
interest, fines, penalties or other impositions for late filings have been paid in full. Each Northwest Bancshares Compensation and Benefit Plan which is an “employee pension benefit plan” within the meaning of Section 3(2) of ERISA and which is
intended to be qualified under Section 401(a) of the Code has received a favorable determination or opinion letter from the IRS, and Northwest Bancshares is not aware of any circumstances which are reasonably likely to result in revocation of any
such favorable determination or opinion letter. There is no material pending or, to the Knowledge of Northwest Bancshares, threatened action, suit or claim relating to any of the Northwest Bancshares Compensation and Benefit Plans (other than
routine claims for benefits). Neither Northwest Bancshares nor any Northwest Bancshares Subsidiary has engaged in a transaction, or omitted to take any action, with respect to any Northwest Bancshares Compensation and Benefit Plan that would
reasonably be expected to subject Northwest Bancshares or any Northwest Bancshares Subsidiary to a material unpaid tax or penalty imposed by either Section 4975 of the Code or Section 502 of ERISA.
5.12.3 No liability under Title IV of ERISA has been incurred by Northwest Bancshares or any Northwest Bancshares Subsidiary with respect to
any Northwest Bancshares Compensation and Benefit Plan which is subject to Title IV of ERISA (“Northwest Bancshares Pension Plan”) currently or formerly maintained by Northwest Bancshares or any entity which is considered one employer with
Northwest Bancshares under Section 4001(b)(1) of ERISA or Section 414 of the Code (an “Northwest Bancshares ERISA Affiliate”) since the effective date of ERISA that has not been satisfied in full, and, to the Knowledge of Northwest Bancshares, no
condition exists that presents a material risk to Northwest Bancshares or any Northwest Bancshares ERISA Affiliate of incurring a liability under such Title. No Northwest Bancshares Pension Plan had an “accumulated funding deficiency” (as defined
in Section 302 of ERISA), whether or not waived, as of the last day of the end of the most recent plan year ending prior to the date hereof; except as set forth in Northwest
Bancshares Disclosure Schedule 5.12.3, the fair market value of the assets of each Northwest Bancshares Pension Plan exceeds the present value of the “benefit liabilities” (as defined in Section 4001(a)(16) of ERISA) under such
Northwest Bancshares Pension Plan as of the end of the most recent plan year with respect to the respective Northwest Bancshares Pension Plan ending prior to the date hereof, calculated on the basis of the actuarial assumptions used in the most
recent actuarial valuation for such Northwest Bancshares Pension Plan as of the date hereof; there is not currently pending with the PBGC any filing with respect to any reportable event under Section 4043 of ERISA nor has any reportable event
occurred as to which a filing is required and has not been made (other than as might be required with respect to this Agreement and the transactions contemplated thereby). Neither Northwest Bancshares nor any Northwest Bancshares ERISA Affiliate
has contributed to any “multiemployer plan,” as defined in Section 3(37) of ERISA. Neither Northwest Bancshares, nor, to the Knowledge of Northwest Bancshares, any Northwest Bancshares ERISA Affiliate, nor any Northwest Bancshares Compensation and
Benefit Plan, including any Northwest Bancshares Pension Plan, nor any trust created thereunder, nor, to the knowledge of
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Northwest Bancshares, any trustee or administrator thereof has engaged in a transaction in
connection with which Northwest Bancshares, any Northwest Bancshares ERISA Affiliate, and any Northwest Bancshares Compensation and Benefit Plan, including any Northwest Bancshares Pension Plan or any such trust or any trustee or administrator
thereof, would reasonably be expected to be subject to either a material civil liability or penalty pursuant to Section 409, 502(i) or 502(l) of ERISA or a material tax imposed pursuant to Chapter 43 of the Code.
5.12.4 All material contributions required to be made under the terms of any Northwest Bancshares Compensation and Benefit Plan have been
timely made, and all anticipated contributions and funding obligations have been accrued on Northwest Bancshares’ consolidated financial statements to the extent required by and in accordance with GAAP. Northwest Bancshares and each of its
Subsidiaries has expensed and accrued as a liability the present value of future benefits under each applicable Northwest Bancshares Compensation and Benefit Plan for financial reporting purposes in accordance with applicable laws and GAAP.
5.12.5 Neither Northwest Bancshares nor any Northwest Bancshares Subsidiary has any obligations to provide retiree health, life insurance, or
disability insurance, or any retiree death benefits under any Northwest Bancshares Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the Code. There has been no communication to employees by Northwest Bancshares or
any Northwest Bancshares Subsidiary that would reasonably be expected to promise or guarantee such employees retiree health, life insurance, or disability insurance, or any retiree death benefits, other than as set forth in Northwest Bancshares Disclosure Schedule 5.12.5.
5.12.6 With respect to each Northwest Bancshares Compensation and Benefit Plan, if applicable, Northwest Bancshares has provided or made
available upon request to MutualFirst Financial copies of the: (A) trust instruments and insurance contracts; (B) most recent annual reports or IRS Form 5500; (C) most recent actuarial reports and financial statements; (D) most recent summary plan
description; (E) most recent determination or opinion letter issued by the IRS; (F) any Form 5310 or Form 5330 filed with the IRS within the last three years; and (G) most recent nondiscrimination tests performed under ERISA and the Code (including
401(k) and 401(m) tests).
5.12.7 All deferred compensation plans, programs or arrangements have (i) been operated in all material respects in good faith compliance with
Section 409A of the Code, the Treasury Regulations and other guidance issued thereunder and (ii) since January 1, 2009 (or such later date permitted under applicable guidance), been in documentary compliance in all material respects with Section
409A of the Code and IRS regulations and guidance thereunder. All Northwest Bancshares Options and stock appreciation rights granted by Northwest Bancshares to any current or former employee or director have been granted with a per share exercise
price or reference price at least equal to the fair market value of the underlying stock on the date the option or stock appreciation right was granted (as defined in the relevant Northwest Bancshares Stock Benefit Plans), within the meaning of
Section 409A of the Code and associated guidance.
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5.13.1. To the Knowledge of Northwest Bancshares, other than as set forth in Northwest Bancshares Disclosure Schedule 5.13, neither the conduct nor operation of their business nor any condition of any property currently or previously owned or operated by any of them (including, without limitation, in
a fiduciary or agency capacity), or on which any of them holds a lien, results or resulted in a violation of any Environmental Laws that is reasonably likely to impose a material liability (including a material remediation obligation) upon
Northwest Bancshares or any Northwest Bancshares Subsidiary. To the Knowledge of Northwest Bancshares, no condition has existed or event has occurred with respect to such property that, with notice or the passage of time, or both, is reasonably
likely to result in any material liability to Northwest Bancshares or any Northwest Bancshares Subsidiary by reason of any Environmental Laws. Neither Northwest Bancshares nor any Northwest Bancshares Subsidiary has received any written notice
from any Person that Northwest Bancshares or any Northwest Bancshares Subsidiary or the operation or condition of any property ever owned, operated, or held as collateral or in a fiduciary capacity by any of them are currently in violation of or
otherwise are alleged to have financial exposure under any Environmental Laws or relating to Materials of Environmental Concern (including, but not limited to, responsibility (or potential responsibility) for the cleanup or other remediation of any
Materials of Environmental Concern at, on, beneath, or originating from any such property) for which a material liability is reasonably likely to be imposed upon Northwest Bancshares or any Northwest Bancshares Subsidiary.
5.13.2. There is no suit, written claim, action, demand, executive or administrative order, directive, investigation or proceeding pending or,
to the Knowledge of Northwest Bancshares, threatened, before any court, governmental agency or other forum against Northwest Bancshares or any Northwest Bancshares Subsidiary (x) for alleged noncompliance (including by any predecessor) with, or
liability under, any Environmental Law or (y) relating to the presence of or release into the environment of any Materials of Environmental Concern (as defined herein), whether or not occurring at or on a site owned, leased or operated by Northwest
Bancshares or any Northwest Bancshares Subsidiary.
5.13.3. To the Knowledge of Northwest, (i) there are no underground storage tanks on, in or under any properties owned or operated by
Northwest or any Northwest Subsidiary (including Participation Facilities and Other Real Estate Owned), and (ii) no underground storage tanks have been closed or removed from any properties owned or operated by Northwest or any Northwest Subsidiary
(including Participation Facilities and Other Real Estate Owned) except in compliance with Environmental Laws in all material respects.
5.13.4. To Northwest’s Knowledge, the properties currently owned or operated by Northwest or any Northwest Financial Subsidiary (including,
without limitation, soil, groundwater or surface water on or under the properties, and buildings thereon) are not contaminated with and do not otherwise contain any Materials of Environmental Concern other than as permitted under applicable
Environmental Law.
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The transactions contemplated by this Agreement are not subject to the requirements of any
“moratorium,” “control share,” “fair price,” “affiliate transactions,” “business combination” or other antitakeover laws and regulations of the State of Maryland, including the provisions of the MGCL applicable to Northwest Bancshares.
The affirmative vote of the majority of the issued and outstanding shares of Northwest Bancshares
Common Stock is required to approve the issuance of Northwest Bancshares Common Stock pursuant to this Agreement and the Merger under the MGCL and Northwest Bancshares’ articles of incorporation.
All material interest rate swaps, caps, floors, option agreements, futures and forward contracts and
other similar risk management arrangements, whether entered into for Northwest Bancshares’ own account, or for the account of one or more of Northwest Bancshares’ Subsidiaries or their customers, were in all material respects entered into in
compliance with all applicable laws, rules, regulations and regulatory policies, and to the Knowledge of Northwest Bancshares, with counterparties believed to be financially responsible at the time; and each of them constitutes the valid and legally
binding obligation of Northwest Bancshares or such Northwest Bancshares Subsidiary, enforceable in accordance with its terms (except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principles), and is in full force and effect. Neither Northwest Bancshares nor any Northwest Bancshares Subsidiary, nor to the
Knowledge of Northwest Bancshares any other party thereto, is in breach of any of its obligations under any such agreement or arrangement in any material respect.
5.16.1. Neither Northwest Bancshares nor any Northwest Bancshares Subsidiary, nor any of their respective officers, directors, employees or
agents, has employed any broker, finder or financial advisor in connection with the transactions contemplated by this Agreement, or incurred any liability or commitment for any fees or commissions to any such person in connection with the
transactions contemplated by this Agreement, except for the retention of X. Xxxxx FBR, Inc. by Northwest Bancshares and the fee payable pursuant thereto.
5.16.2. The Board of Directors of Northwest Bancshares has received the opinion (which, if initially rendered verbally, has been or will be
confirmed by a written opinion, dated the same date) of X. Xxxxx FBR, Inc. to the effect that, as of the date of such opinion and subject to the assumptions, limitations and qualifications set forth therein, the Exchange Ratio in the Merger is
fair, from a financial point of view, to Northwest Bancshares.
The shares of Northwest Bancshares Common Stock to be issued pursuant to this Agreement have been
reserved for issuance, and when issued in accordance with the terms of this Agreement, will be duly authorized, validly issued, fully paid and non-assessable and subject to no preemptive rights.
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Northwest Bancshares has cash, and immediately prior to the Effective Time, will have cash,
sufficient to pay or cause to be deposited into the Exchange Fund, the aggregate amount of cash as required pursuant to Section 3.3.
5.19. Material Contracts; Leases; Defaults.
Except as set forth in Northwest
Bancshares Disclosure Schedule 5.19, neither Northwest Bancshares nor any Northwest Bancshares Subsidiary is a party to or subject to: any agreement which by its terms limits the payment of dividends by Northwest Bancshares or any
Northwest Bancshares Subsidiary.
The allowance for loan losses reflected in the Northwest Bancshares Financial Statements as of
September 30, 2019 was, and the allowance for loan losses reflected in the Northwest Bancshares Regulatory Reports for periods ending after September 30, 2019 were or will be, adequate, as of the dates thereof, under GAAP in all material respects.
5.21. IT Systems.
To Northwest Bancshares’s Knowledge, all information technology and computer systems (including
software, information technology and telecommunication hardware and other equipment) relating to the transmission, storage, maintenance, organization, presentation, generation, processing or analysis of data and
information, whether or not in electronic format, used in or necessary to the conduct of the business of the Northwest Bancshares or Northwest Bank (collectively, the “Northwest Bancshares IT Systems”) have been properly maintained by technically competent personnel, in accordance with standards set by the manufacturers or otherwise in accordance with standards in the industry, to ensure proper
operation, monitoring and use. The Northwest Bancshares IT Systems are in good working condition to effectively perform all information technology operations necessary to conduct Northwest Bancshares’s consolidated business as currently conducted.
Neither Northwest Bancshares nor Northwest Bank has experienced within the past two years any material disruption to, or material interruption in, the conduct of its business attributable to a defect, bug, breakdown or other failure or deficiency of
the Northwest Bancshares IT Systems. To the knowledge of Northwest Bancshares, no Person has gained unauthorized access to any of the Northwest Bancshares IT Systems that has had, or is reasonably expected to have, a Material Adverse Effect on
Northwest Bancshares. Northwest Bancshares and Northwest Bank have taken reasonable measures to provide for the back-up and recovery of the data and information necessary to the conduct of their businesses without material disruption to, or material
interruption in, the conduct of their respective businesses. Northwest Bancshares and the Northwest Bancshares Subsidiaries are compliant in all material respects with all data protection and privacy laws and regulations as well as their own
policies relating to data protection and the privacy and security of personal data and the non-public personal information of their respective customers and employees, except for immaterial failures to comply or immaterial violations.
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Northwest Bancshares and any Northwest Bancshares Subsidiary has properly administered all accounts
for which it acts as a fiduciary including, but not limited to, accounts for which it serves as trustee, agent, custodian, personal representative, guardian, conservator or investment advisor, in accordance with the terms of the governing documents
and applicable laws and regulations. Neither Northwest Bancshares nor any Northwest Bancshares Subsidiary, nor, to the Knowledge of Northwest Bancshares, any of their respective directors, officers or employees, have committed any breach of trust
with respect to any such fiduciary account or the records for each such fiduciary account.
5.23. Labor Matters.
Northwest Bancshares and the Northwest Bancshares Subsidiaries are in material compliance with all
applicable laws respecting employment, retention of independent contractors, employment practices, terms and conditions of employment, and wages and hours. Neither Northwest Bancshares nor any of the Northwest Bancshares Subsidiaries is or has ever
been a party to, or is or has ever been bound by, any collective bargaining agreement, contract or other agreement or understanding with a labor union or labor organization with respect to its employees, nor is Northwest Bancshares or any of the
Northwest Bancshares Subsidiaries the subject of any proceeding asserting that it has committed an unfair labor practice or seeking to compel it or any of the Northwest Bancshares Subsidiaries to bargain with any labor organization as to wages and
conditions of employment nor, to the Knowledge of Northwest Bancshares, has any such proceeding been threatened, nor is there any strike, other labor dispute or organizational effort involving Northwest Bancshares or any of the Northwest Bancshares
Subsidiaries pending or, to the Knowledge of Northwest Bancshares, threatened.
6.1.1. Affirmative Covenants. During the
period from the date of this Agreement to the Effective Time, except with the written consent of Northwest Bancshares, which consent will not be unreasonably withheld, conditioned or delayed, MutualFirst Financial will, and it will cause each
MutualFirst Financial Subsidiary to: operate its business only in the usual, regular and ordinary course of business; use commercially reasonable efforts to preserve intact its business organization and assets and maintain its rights and
franchises; and voluntarily take no action which would: (i) materially adversely affect the ability of the parties to obtain the Regulatory Approvals or
materially increase the period of time necessary to obtain the Regulatory Approvals, (ii) materially adversely affect its ability to perform its covenants and agreements under this Agreement or (iii) result in the representations and warranties
contained in Article IV of this Agreement not being true and correct on the date of this Agreement or at any future date on or prior to the Closing Date or in any of the conditions set forth in Article IX hereof not being satisfied.
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6.1.2. Negative Covenants. MutualFirst
Financial agrees that from the date of this Agreement to the Effective Time, except as otherwise specifically permitted or required by this Agreement, as set forth in MutualFirst
Financial Disclosure Schedule 6.1.2, or consented to by Northwest Bancshares in writing (which consent shall not be unreasonably withheld, conditioned or delayed), it will not, and it will cause each of the MutualFirst Financial
Subsidiaries not to:
(A) change or waive any provision of its Articles of Incorporation, Charter or Bylaws, as the case may be;
(B) change the number of authorized or issued shares of its capital stock (other than pursuant to the issuance of shares upon
the exercise of outstanding MutualFirst Financial Stock Options), issue any shares of MutualFirst Financial Common Stock that are held as “treasury shares” as of the date of this Agreement, or issue or grant any Right or agreement of any character
relating to its authorized or issued capital stock or any securities convertible into shares of such stock, make any grant or award under the MutualFirst Financial Stock Benefit Plans, or split, combine or reclassify any shares of capital stock, or
declare, set aside or pay any dividend (other than the declaration and payment of a regular quarterly cash dividend of no more than $0.20 per share with payment and record dates consistent with past practice, provided that the declaration of the
last quarterly dividend by MutualFirst Financial prior to the Effective Time and the payment thereof shall be coordinated with Northwest Bancshares so that holders of MutualFirst Financial Common Stock do not receive dividends on both MutualFirst
Financial Common Stock and Northwest Bancshares Common Stock received in the Merger during such quarter) or other distribution in respect of capital stock, or redeem or otherwise acquire any shares of capital stock; provided, however, that (i)
MutualFirst Financial may permit the vesting of awards previously made under the MutualFirst Financial Stock Plan and may permit holders of MutualFirst Financial Stock Options to elect to tender MutualFirst Financial Common Stock or have
MutualFirst Financial withhold common shares from the MutualFirst Financial Stock Option as payment of the exercise price and any tax withholding obligations of MutualFirst Financial in connection with an exercise of such MutualFirst Financial
Stock Options, and (ii) any MutualFirst Financial Subsidiary may pay dividends to its parent company (as permitted under applicable law and regulations);
(C) enter into, amend in any material respect or terminate any material contract or agreement (including without limitation any
settlement agreement with respect to litigation other than pursuant to any payment, discharge, settlement or compromise permitted pursuant to Section 6.1.2(W)) involving amounts in excess of $250,000, except in the ordinary course of business
consistent with past practice or as contemplated by this Agreement;
(D) make application for the opening or closing of any, or open or close any, branch or automated banking facility;
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(E) grant or agree to pay any bonus, severance or termination to, or enter into, renew or amend any employment agreement,
severance agreement and/or supplemental executive agreement with, or increase in any manner the compensation or fringe benefits of, any of its directors, officers or employees, except (i) as may be required by applicable law, (ii) pursuant to
commitments existing on the date hereof and set forth on MutualFirst Financial Disclosure Schedules 4.9.1 and 4.13.1, (iii) as to non-executive employees, pay increases in the ordinary course of business and consistent with past practice, and (iv) the payment of bonuses for the year ending December 31, 2019, to the extent
such bonuses have been accrued in accordance with GAAP through the date hereof and will be accrued through December 31, 2019 and provided that such bonuses are consistent, as to amount and persons covered, with past practice. Neither MutualFirst
Financial nor any MutualFirst Financial Subsidiary shall hire or promote any employee to a rank having a title of senior vice president or other more senior rank or hire any new employee at an annual rate of compensation in excess of $100,000,
except that MutualFirst Financial may hire at-will, non-executive officer employees to fill vacancies that may from time to time arise in the ordinary course of business;
(F) enter into or, except as may be required by law, materially modify any pension, retirement, stock option, stock purchase,
stock appreciation right, stock grant, savings, profit sharing, deferred compensation, supplemental retirement, consulting, bonus, group insurance or other employee benefit, incentive or welfare contract, plan or arrangement, or any trust agreement
related thereto, in respect of any of its directors, officers or employees; or make any contributions to any defined contribution plan not in the ordinary course of business consistent with past practice;
(G) Except as permitted by Section 6.10.2, merge or consolidate MutualFirst Financial or any MutualFirst Financial Subsidiary
with any other corporation; sell or lease all or any substantial portion of the assets or business of MutualFirst Financial or any MutualFirst Financial Subsidiary; make any acquisition of all or any substantial portion of the business or assets of
any other Person other than in connection with foreclosures, settlements in lieu of foreclosure, troubled loan or debt restructuring, or the collection of any loan or credit arrangement between MutualFirst Financial, or any MutualFirst Financial
Subsidiary, and any other Person, in each case in the ordinary course of business consistent with past practice; enter into a purchase and assumption transaction with respect to deposits and liabilities; or permit the revocation or surrender by any
MutualFirst Financial Subsidiary of its certificate of authority to maintain, or file an application for the relocation of, any existing branch office;
(H) sell or otherwise dispose of the capital stock of MutualFirst Financial or sell or otherwise dispose of any asset of
MutualFirst Financial or of any MutualFirst Financial Subsidiary other than in the ordinary course of business consistent with past practice; except for transactions with the FHLB of Indianapolis, subject any asset of MutualFirst Financial or of
any MutualFirst Financial Subsidiary to a lien, pledge, security interest or other encumbrance (other than in connection with deposits, repurchase agreements, bankers acceptances, “treasury tax and loan” accounts established in the ordinary course
of business and transactions in “federal funds” and the satisfaction of legal requirements in the exercise of trust powers) other than in the ordinary course of business consistent with past practice; or incur any indebtedness for borrowed money
(or guarantee any indebtedness for borrowed money), except in the ordinary course of business consistent with past practice;
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(I) take any action that would result in any of the representations and warranties of MutualFirst Financial set forth in this
Agreement becoming untrue as of any date after the date hereof or in any of the conditions set forth in Article IX hereof not being satisfied, except in each case as may be required by applicable law;
(J) change any method, practice or principle of accounting, except as may be required from time to time by GAAP (without regard
to any optional early adoption date) or regulatory accounting principles or any Bank Regulator responsible for regulating MutualFirst Financial;
(K) except as provided for under paragraph (W) hereof, waive, release, grant or transfer any material rights of value or modify
or change in any material respect any existing material agreement or indebtedness to which MutualFirst Financial or any MutualFirst Financial Subsidiary is a party, other than in the ordinary course of business, consistent with past practice;
(L) purchase any equity securities, or purchase any security for its investment portfolio inconsistent with MutualFirst
Financial’s or any MutualFirst Financial Subsidiary’s current investment policy other than investments in FHLB stock required under applicable law or regulations;
(M) except for commitments issued prior to the date of this Agreement which have not yet expired and which have been disclosed
on the MutualFirst Financial Disclosure Schedule 6.1.2(M), and the renewal of existing lines of credit, make any new loan or other credit facility commitment
(including without limitation, lines of credit and letters of credit) (i) in an amount in excess of $2.0 million, (ii) in an amount in excess of $500,000 that is (a) unsecured or (b) undersecured by more than 20% of the amount advanced based on
policy and not subject to an SBA guarantee or (iii) for a one- to four-family residential real estate loan that is not eligible for sale in the secondary market; provided that Northwest Bancshares shall have been deemed to have consented to any
loan in excess of such amount or otherwise not permitted by this section if Northwest Bancshares does not object to any such proposed loan within two business days of receipt by Northwest Bancshares of a request by MutualFirst Financial to exceed
such limit along with all financial or other data that Northwest Bancshares may reasonably request in order to evaluate such loan;
(N) enter into, renew, extend or modify any transaction (other than a loan, subject to subsection (M) above, and a deposit
transaction) with any Affiliate; provided that Northwest Bancshares shall have been deemed to have consented to any renewal, extension or modification of any transaction with an Affiliate if Northwest Bancshares does not object to any such proposed
renewal, extension or modification within five business days of receipt by Northwest Bancshares of a request by MutualFirst Financial to renew, extend or modify such a transaction along with all financial or other data that Northwest Bancshares may
reasonably request in order to evaluate the same;
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(O) enter into any futures contract, option, interest rate caps, interest rate floors, interest rate exchange agreement or
other agreement or take any other action for purposes of hedging the exposure of its interest-earning assets and interest-bearing liabilities to changes in market rates of interest except in the ordinary course of business consistent with past
practice;
(P) except for the execution of this Agreement and actions taken or which will be taken in accordance with this Agreement and
performance hereunder, take any action that would give rise to a right of payment to any individual under any employment agreement;
(Q) make any material change in policies in existence on the date of this Agreement with regard to: the extension of credit, or
the establishment of reserves with respect to the possible loss thereon or the charge-off of losses incurred thereon; investments; asset/liability management; deposit pricing or gathering; or other material banking policies in any material respect
except as may be required by changes in applicable law or regulations, GAAP or regulatory accounting principles, or by a Bank Regulator;
(R) except for the execution of this Agreement, and the transactions contemplated herein, take any action that would give rise
to an acceleration of the right to payment to any individual under any MutualFirst Financial Compensation and Benefit Plan;
(S) except as set forth in MutualFirst Financial
Disclosure Schedule 6.1.2(S), make any capital expenditures in excess of $100,000 individually or $200,000 in the aggregate, other than pursuant to binding commitments existing on the date hereof and other than expenditures necessary
to maintain existing assets in good repair;
(T) purchase or otherwise acquire, or sell or otherwise dispose of, any assets or incur any liabilities other than in the
ordinary course of business consistent with past practices and policies (other than liabilities that relate solely to accruals with respect to loss contingencies within the meaning of Financial Accounting Standards Board Accounting Standards
Codification 450);
(U) sell any participation interest in any loan (other than sales of (i) loans secured by one- to four-family real estate, (ii)
indirect automobile loans, or (iii) SBA guaranteed loans, in each case that are consistent with past practice) unless Northwest Bank has been given the first opportunity and a reasonable time to purchase any loan participation being sold;
(V) undertake or enter into any lease, contract or other commitment for its account, other than in the normal course of
providing credit to customers as part of its banking business;
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(W) pay, discharge, settle or compromise any claim, action, litigation, arbitration or proceeding, other than any such payment,
discharge, settlement or compromise in the ordinary course of business consistent with past practice that involves solely money damages in the amount not in excess of $100,000 individually or $250,000 in the aggregate, or with regard to a
settlement exceeding $100,000 individually or $250,000 in the aggregate, where such settlement is fully covered by insurance, and that does not create precedent for other pending or potential claims, actions, litigation, arbitration or proceedings or agree to consent to the issuance of any injunction, decree, order or judgment restricting or otherwise affecting its business or operations;
(X) foreclose upon or take a deed or title to any commercial real estate without first conducting a Phase I environmental
assessment of the property or foreclose upon any commercial real estate if such environmental assessment indicates the presence of Materials of Environmental Concern in violation of Environmental Law;
(Y) issue any broadly distributed communication of a general nature to employees (including general communications relating to
benefits and compensation) without prior consultation with Northwest Bancshares and, to the extent relating to post-Closing employment, benefit or compensation information without the prior consent of Northwest Bancshares (which shall not be
unreasonably withheld), or issue any broadly distributed communication of a general nature to customers without the prior approval of Northwest Bancshares (which shall not be unreasonably withheld), except as required by law or for communications
in the ordinary course of business consistent with past practice that do not relate to the Merger or other transactions contemplated hereby;
(Z) take any action or knowingly fail to take any reasonable action that would, or would be reasonably likely to, prevent,
impede or delay the Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Code; or
(AA) agree to do any of the foregoing.
6.2.1. During the period from the date of this Agreement to the Effective Time, MutualFirst Financial will cause one or more of its
representatives to confer with representatives of Northwest Bancshares and report the general status of its ongoing operations at such times as Northwest Bancshares may reasonably request. MutualFirst Financial will promptly notify Northwest
Bancshares of any material change in the normal course of its business or in the operation of its properties and, to the extent permitted by applicable law, of any governmental complaints, investigations or hearings (or communications indicating
that the same may be contemplated), or the institution or the threat of material litigation involving MutualFirst Financial or any MutualFirst Financial Subsidiary. Any information provided pursuant to this Section 6.2 will be subject to the
Confidentiality Agreement and may only be used to facilitate the transactions contemplated hereby.
6.2.2. MutualFirst Financial and Northwest Bank shall meet on a regular basis to discuss and plan for the conversion of MutualFirst Financial’s
data processing and related electronic informational systems to those used by Northwest Bank, which planning shall include, but not be limited to, discussion of the possible termination by MutualFirst Financial of third-
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party service provider arrangements effective at the Effective Time or at a date thereafter,
non-renewal of personal property leases and software licenses used by MutualFirst Financial in connection with its systems operations, retention of outside consultants and additional employees to assist with the conversion and outsourcing, as
appropriate, of proprietary or self-provided system services, it being understood that MutualFirst Financial shall not be obligated to take any such action prior to the Effective Time and, unless MutualFirst Financial otherwise agrees, no
conversion shall take place prior to the Effective Time. In the event that MutualFirst Financial takes, at the request of Northwest Bank, any action relative to third parties to facilitate the conversion that results in the imposition of any fees,
expenses or charges, Northwest Bank shall pay any such fees, expenses and charges directly to such third parties, and shall indemnify MutualFirst Financial for the costs of taking any action to facilitate the conversion process.
6.2.3. MutualFirst Financial shall provide Northwest Bancshares, substantially contemporaneously with the delivery to the Board of Directors of
MutualFirst Financial of the materials for the monthly board meeting (other than materials which MutualFirst Financial is not required to make available to Northwest Bancshares pursuant to Section 6.3.1 of this Agreement), a written list of
nonperforming assets as of the prior quarter end (the term “nonperforming assets,” for purposes of this subsection, means (i) loans that are “troubled debt restructuring” as defined in Financial Accounting Standards Board Accounting Standards
Codification 310-40, “Troubled Debt Restructuring by Creditors,” as updated by Accounting Standards Update 2016-02”, (ii) loans on nonaccrual, (iii) OREO, (iv) all loans ninety (90) days or more past due as of the end of such month and (iv) and
impaired loans. On a monthly basis, MutualFirst Financial shall provide Northwest Bancshares with a schedule of all loan information provided to the Board of Directors of MutualFirst Financial.
6.2.4. MutualFirst Financial shall promptly inform Northwest Bancshares, to the extent permitted by applicable law, upon receiving notice of
any legal, administrative, arbitration or other proceedings, demands, notices, audits or investigations (by any federal, state or local commission, agency or board) relating to the alleged liability of MutualFirst Financial or any MutualFirst
Financial Subsidiary under any labor or employment law.
6.3.1. Subject to Section 12.1 hereof, MutualFirst Financial shall permit Northwest Bancshares and Northwest Bank reasonable access upon
reasonable notice to its properties and those of the MutualFirst Financial Subsidiaries, and shall disclose and make available to Northwest Bancshares and Northwest Bank during normal business hours all of its books, papers and records relating to
the assets, properties, operations, obligations and liabilities, including, but not limited to, all books of account (including the general ledger), tax records, minute books of directors’ (other than minutes that discuss any of the transactions
contemplated by this Agreement or any other subject matter MutualFirst Financial reasonably determines should be treated as confidential) and stockholders’ meetings, organizational documents, Bylaws, material contracts and agreements, filings with
any regulatory authority, litigation files, plans affecting employees, and any other business activities or prospects in which Northwest Bancshares or Northwest Bank may have a reasonable interest; provided, however, that
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MutualFirst Financial shall not be required to take any action that would provide access to or to
disclose information where such access or disclosure, in MutualFirst Financial’s reasonable judgment, would interfere with the normal conduct of MutualFirst Financial’s business or would violate or prejudice the rights or business interests or
confidences of any customer or other person or would result in the waiver by it of the privilege protecting communications between it and any of its counsel or with regard to which disclosure to Northwest Bancshares is prohibited by law or
regulation. MutualFirst Financial shall provide and shall request its auditors and tax accountants to provide Northwest Bancshares with such historical financial information regarding it (and related audit reports and consents) as Northwest
Bancshares may reasonably request for Securities Law disclosure purposes. Northwest Bancshares and Northwest Bank shall use commercially reasonable efforts to minimize any interference with MutualFirst Financial’s regular business operations
during any such access to MutualFirst Financial’s property, books and records.
6.3.2. MutualFirst Financial shall permit Northwest Bancshares, at Northwest Bancshares’ expense, to cause a “Phase I Environmental Site
Assessment” (the “Phase I”) (in conformance with American Society for Testing Materials (“ASTM”) Standard 1527-13, as amended) to be performed at each branch office and other properties owned by MutualFirst Financial, and, to the extent permitted
by any lease governing MutualFirst Financial’s lease of any branch, at each branch leased by MutualFirst Financial, at any time prior to the expiration of 30 days from the date of this Agreement, and to the extent such Phase I recommends
performance of a Phase II Environmental Site Assessment (the “Phase II”) prior to the expiration of 60 days from the date of issuance of the Phase I only to the extent that the Phase II is within the scope of additional testing recommended by the
Phase I to be performed as a result of a “Recognized Environmental Condition” (as such term is defined by the ASTM) that was discovered in the Phase I and provided that as to any Phase II performed at a Branch which MutualFirst Financial leases the
landlord pursuant to the applicable lease has consented to such Phase II if such consent is necessary pursuant to the lease. MutualFirst Financial will use its commercially reasonable efforts (at no cost to MutualFirst Financial) to obtain such
landlord consent. Prior to performing any Phase II, Northwest Bancshares will provide MutualFirst Financial with a copy of its proposed work plan and Northwest Bancshares will cooperate in good faith with MutualFirst Financial to address any
comments or suggestions made by MutualFirst Financial regarding the work plan. Northwest Bancshares and its environmental consultant shall conduct all environmental assessments pursuant to this Section 6.3.2 at mutually agreeable times and so as
to eliminate or minimize to the greatest extent possible interference with MutualFirst Financial’s operation of its business, and Northwest Bancshares shall maintain or cause to be maintained reasonably adequate insurance with respect to any
assessment conducted hereunder. Northwest Bancshares shall be required to restore each property to substantially its pre-assessment condition. All costs and expenses incurred in connection with any Phase I or Phase II and any restoration and clean
up, shall be borne solely by Northwest Bancshares.
6.3.3. Notwithstanding anything to the contrary contained in this Section 6.3, in no event will Northwest Bancshares have access to any
information that, based on advice of MutualFirst Financial’s counsel, would (a) reasonably be expected to waive any material legal privilege, (b) result in the disclosure of any trade secrets of third parties or (c) violate any obligation of
MutualFirst Financial with respect to confidentiality so long as, with respect to
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confidentiality, to the extent specifically requested by Northwest Bancshares, MutualFirst
Financial has made commercially reasonable efforts to obtain a waiver regarding the possible disclosure from the third party to whom it owes an obligation of confidentiality; it being understood that Northwest Bancshares will not conduct any
environmental sampling without the prior written consent of MutualFirst Financial, which consent may not be unreasonably withheld or delayed. All requests made pursuant to this Section 6.3 will be directed to an executive officer of MutualFirst
Financial or such Person or Persons as may be designated by MutualFirst Financial. All information received pursuant to this Section 6.3 will be governed by the terms of the Confidentiality Agreement.
6.4.1. Promptly upon receipt thereof, MutualFirst Financial will furnish to Northwest Bancshares copies of each annual, interim or special
internal or external audit of the books of MutualFirst Financial and each MutualFirst Financial Subsidiary made by MutualFirst Financial, its independent auditors or other auditors, and copies of all internal control reports submitted to
MutualFirst Financial by auditors in connection with each annual, interim or special internal or external audit of the books of MutualFirst Financial and the MutualFirst Financial Subsidiaries made by its auditors.
6.4.2. MutualFirst Financial will furnish to Northwest Bancshares copies of all documents, statements and reports as it or any MutualFirst
Financial Subsidiary sends to its stockholders, the SEC, the FDIC, the Indiana Department, or any other Governmental Entity or Bank Regulator, except as legally prohibited thereby. Within 15 days after the end of each month, MutualFirst Financial
will deliver to Northwest Bancshares a list and description of loans originated by MutualFirst Financial since the prior month end.
6.4.3. MutualFirst Financial will advise Northwest Bancshares promptly of the receipt of any examination report of any Bank Regulator with
respect to the condition or activities of MutualFirst Financial or any MutualFirst Financial Subsidiary.
6.4.4. With reasonable promptness, MutualFirst Financial will furnish to Northwest Bancshares such additional financial data that MutualFirst
Financial possesses and as Northwest Bancshares may reasonably request, including without limitation, detailed monthly financial statements and loan reports.
MutualFirst Financial will maintain, and cause the MutualFirst Financial Subsidiaries to maintain,
insurance in such amounts as are reasonable to cover such risks as are customary in relation to the character and location of its properties and the nature of its business.
From time to time prior to the Effective Time, MutualFirst Financial will promptly supplement or
amend the MutualFirst Financial Disclosure Schedule delivered in connection herewith with respect to any matter hereafter arising which, if existing, occurring or known at the date of this Agreement, would have been required to be set forth or
described in such
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MutualFirst Financial Disclosure Schedule or which is necessary to correct any information in such MutualFirst
Financial Disclosure Schedule which has been rendered materially inaccurate thereby. No supplement or amendment to such MutualFirst Financial Disclosure Schedule will have any effect for the purpose of determining satisfaction of the conditions set
forth in Article IX.
MutualFirst Financial will use all commercially reasonable efforts, and
will cause each MutualFirst Financial Subsidiary to use all commercially reasonable efforts to obtain as soon as practicable all consents and approvals of any other persons necessary or desirable for the consummation of the transactions contemplated
by this Agreement. Without limiting the generality of the foregoing, MutualFirst Financial will utilize the services of a professional proxy soliciting firm to provide assistance in obtaining the stockholder vote required to be obtained by it
hereunder.
Subject to the terms and conditions herein provided, MutualFirst Financial agrees to use, and agrees
to cause each MutualFirst Financial Subsidiary to use, all commercially 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.
In the event that MutualFirst Financial determines that a condition to its obligation to complete the
Merger cannot be fulfilled and that it will not waive that condition, it will promptly notify Northwest Bancshares.
6.10.1. MutualFirst Financial shall not, and shall cause the MutualFirst Financial Subsidiaries and the respective officers, directors,
employees, investment bankers, financial advisors, attorneys, accountants, consultants, affiliates and other agents (collectively, the “MutualFirst Financial Representatives”) not to, directly or indirectly, (i) initiate, solicit, induce or
knowingly encourage, or take any action to facilitate the making of, any inquiry, offer or proposal which constitutes, or could reasonably be expected to lead to, an Acquisition Proposal; (ii) participate in any discussions or negotiations
regarding any Acquisition Proposal or furnish, or otherwise afford access, to any Person (other than Northwest Bancshares) any information or data with respect to MutualFirst Financial or any of the MutualFirst Financial Subsidiaries or otherwise
relating to an Acquisition Proposal; (iii) release any Person from, waive any provisions of, or fail to enforce any confidentiality agreement or standstill agreement to which MutualFirst Financial is a party; or (iv) enter into any agreement,
agreement in principle or letter of intent with respect to any Acquisition Proposal or approve or resolve to approve any Acquisition Proposal or any agreement, agreement in principle or letter of intent relating to an Acquisition Proposal. Any
violation of the foregoing restrictions by MutualFirst Financial or any MutualFirst Financial Representative, whether or not such Representative is so authorized and
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whether or not such MutualFirst Financial Representative is purporting to act on behalf of
MutualFirst Financial or otherwise, shall be deemed to be a breach of this Agreement by MutualFirst Financial. MutualFirst Financial and MutualFirst Financial Subsidiaries shall, and shall cause each of the MutualFirst Financial Representatives
to, immediately cease and cause to be terminated any and all existing discussions, negotiations, and communications with any Persons with respect to any existing or potential Acquisition Proposal.
For purposes of this Agreement, “Acquisition Proposal” means any inquiry, offer or proposal (other
than an inquiry, offer or proposal from Northwest Bancshares), whether or not in writing, contemplating, relating to, or that could reasonably be expected to lead to, an Acquisition Transaction. For purposes of this Agreement, “Acquisition
Transaction” means (A) any transaction or series of transactions, including by way of merger, consolidation, recapitalization, share exchange, liquidation, dissolution or similar transaction, involving MutualFirst Financial or any of the MutualFirst
Financial Subsidiaries and representing, in the aggregate, twenty-five percent (25%) or more of the assets of MutualFirst Financial and the MutualFirst Financial Subsidiaries on a consolidated basis; (B) any transaction pursuant to which any third
party or group acquires or would acquire (whether through sale, lease or other disposition), directly or indirectly, any assets of MutualFirst Financial or any of the MutualFirst Financial Subsidiaries representing, in the aggregate, twenty-five
percent (25%) or more of the assets of MutualFirst Financial and the MutualFirst Financial Subsidiaries on a consolidated basis; (C) any issuance, sale or other disposition of (including by way of merger, consolidation, share exchange or any similar
transaction) securities (or options, rights or warrants to purchase or securities convertible into, such securities) representing twenty-five percent (25%) or more of the total voting power of MutualFirst Financial or any of the MutualFirst Financial
Subsidiaries in the election of directors; (D) any tender offer or exchange offer that, if consummated, would result in any third party or group beneficially owning twenty-five percent (25%) or more of the total voting power of MutualFirst Financial
or any of the MutualFirst Financial Subsidiaries in the election of directors; or (E) any transaction which is similar in form, substance or purpose to any of the foregoing transactions, or any combination of the foregoing.
6.10.2. Notwithstanding Section 6.10.1, MutualFirst Financial may take any of the actions described in clause (ii) of Section 6.10.1 only if,
(i) MutualFirst Financial has received a bona fide unsolicited written Acquisition Proposal prior to the MutualFirst Financial Stockholders Meeting that did not result from a breach of this Section 6.10; (ii) the MutualFirst Financial Board of
Directors determines in good faith, after consultation with and having considered the advice of its outside legal counsel and an independent financial advisor, that such Acquisition Proposal constitutes or is reasonably likely to lead to a Superior
Proposal; (iii) MutualFirst Financial has provided Northwest Bancshares with at least one (1) Business Day’s prior notice of such determination; and (iv) prior to furnishing or affording access to any information or data with respect to MutualFirst
Financial or any of the MutualFirst Financial Subsidiaries or otherwise relating to an Acquisition Proposal, MutualFirst Financial receives from such Person a confidentiality agreement with terms no less favorable to MutualFirst Financial than
those contained in the Confidentiality Agreement dated August 26, 2019 (the “Confidentiality Agreement”). MutualFirst Financial shall promptly provide to Northwest Bancshares any non-public information regarding MutualFirst Financial or the
MutualFirst Financial Subsidiaries provided to any other Person that was not previously provided to Northwest Bancshares, such additional information to be provided no later than twenty-four (24) hours from provision of such information to such
other party.
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For purposes of this Agreement, “Superior Proposal” shall mean any bona fide written proposal (on its most recently
amended or modified terms, if amended or modified) made by a third party to enter into an Acquisition Transaction on terms that the MutualFirst Financial Board of Directors determines in its good faith judgment, after consultation with and having
considered the advice of outside legal counsel and a financial advisor (i) would, if consummated, result in the acquisition of at least fifty percent (50%) of the issued and outstanding shares of MutualFirst Financial Common Stock or all, or
substantially all, of the assets of MutualFirst Financial and the MutualFirst Financial Subsidiaries on a consolidated basis; (ii) would result in a transaction that (A) involves consideration to the holders of the shares of MutualFirst Financial
Common Stock that is more favorable, from a financial point of view, than the consideration to be paid to the MutualFirst Financial Stockholders pursuant to this Agreement, considering, among other things, the nature of the consideration being
offered, the percentage of the outstanding MutualFirst Financial Common Stock proposed to be acquired, and any material regulatory approvals or other risks associated with the timing of the proposed transaction beyond or in addition to those
specifically contemplated hereby, and which proposal is not conditioned upon obtaining additional financing and (B) is, in light of the other terms of such proposal, more favorable to the MutualFirst Financial Stockholders than the Merger and the
transactions contemplated by this Agreement; and (iii) is reasonably likely to be completed on the terms proposed, in each case taking into account all legal, financial, regulatory and other aspects of the proposal; provided that, for the purposes of
the definition of Superior Proposal, the references to twenty-five percent (25%) in the definition of Acquisition Proposal shall be fifty percent (50%).
6.10.3. MutualFirst Financial shall promptly (and in any event within twenty-four (24) hours) notify Northwest Bancshares in writing if any
proposals or offers are received by, any information is requested from, or any negotiations or discussions are sought to be initiated or continued with, MutualFirst Financial or any MutualFirst Financial Representatives, in each case in connection
with any Acquisition Proposal, and such notice shall indicate the name of the Person initiating such discussions or negotiations or making such proposal, offer or information request and the material terms and conditions of any proposals or offers
(and, in the case of written materials relating to such proposal, offer, information request, negotiations or discussion, providing copies of such materials (including e-mails or other electronic communications). MutualFirst Financial agrees that
it shall keep Northwest Bancshares informed, on a current basis, of the status and terms of any such proposal, offer, information request, negotiations or discussions (including any amendments or modifications to such proposal, offer or request).
6.10.4. Subject to Section 6.10.5, neither the MutualFirst Financial Board of Directors nor any committee thereof shall (i) withdraw, qualify
or modify, or propose to withdraw, qualify or modify, in a manner adverse to Northwest Bancshares in connection with the transactions contemplated by this Agreement (including the Merger), the MutualFirst Financial Recommendation (as defined in
Section 8.1), or make any statement, filing or release, in connection with the MutualFirst Financial Stockholders Meeting or otherwise, inconsistent with the MutualFirst Financial Recommendation (it being understood that taking a neutral position
or no position with respect to an Acquisition Proposal shall be considered an adverse modification of the MutualFirst Financial Recommendation); (ii) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal; or
(iii) enter into (or cause MutualFirst Financial or any of the MutualFirst Financial Subsidiaries to enter into) any letter of intent, agreement in principle, acquisition agreement or other agreement (A) related to any Acquisition Transaction
(other than a confidentiality agreement entered into in accordance with the provisions of Section 6.10.2) or (B) requiring MutualFirst Financial to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this
Agreement.
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6.10.5. Notwithstanding Section 6.10.4, at any time prior to the approval of the Merger at the MutualFirst Financial Stockholders Meeting, the
MutualFirst Financial Board of Directors may approve or recommend to the stockholders of MutualFirst Financial a Superior Proposal, withdraw, qualify or modify the MutualFirst Financial Recommendation in connection therewith (a “MutualFirst
Financial Subsequent Determination”) and/or adjourn or postpone the MutualFirst Financial Stockholders Meeting after the third (3rd) Business Day following Northwest Bancshares’ receipt of a notice (the “Notice of Superior Proposal”), from
MutualFirst Financial advising Northwest Bancshares that the MutualFirst Financial Board of Directors has decided that a bona fide unsolicited written Acquisition Proposal that it received (that did not result from a breach of this Section 6.10)
constitutes a Superior Proposal (it being understood that MutualFirst Financial shall be required to deliver a new Notice of Superior Proposal in respect of any revised Superior Proposal from such third party or its affiliates that MutualFirst
Financial proposes to accept and the subsequent notice period shall be two (2) business days) if, but only if, (i) the MutualFirst Financial Board of Directors has reasonably determined in good faith, after consultation with and having considered
the advice of outside legal counsel and a financial advisor (as to financial matters), that the failure to take such actions would more likely than not violate its fiduciary duties to MutualFirst Financial’s stockholders under applicable law, and
(ii) at the end of such three (3) Business Day period or the two (2) Business Day Period (as the case may be), after taking into account any such adjusted, modified or amended terms as may have been committed to in writing by Northwest Bancshares
since its receipt of such Notice of Superior Proposal (provided, however, that Northwest Bancshares shall not have any obligation to propose any adjustments, modifications or amendments to the terms and conditions of this Agreement), the
MutualFirst Financial Board of Directors has again in good faith made the determination (A) in clause (i) of this Section 6.10.5, and (B) that such Acquisition Proposal constitutes a Superior Proposal. Notwithstanding the foregoing, the changing,
qualifying or modifying of the MutualFirst Financial Recommendation or the making of a MutualFirst Financial Subsequent Determination by the MutualFirst Financial Board of Directors shall not change the approval of the MutualFirst Financial Board
of Directors for purposes of causing any applicable “moratorium,” “control share,” “fair price,” “takeover,” “interested stockholder” or similar law to be inapplicable to this Agreement and the MutualFirst Financial Voting Agreements and the
transactions contemplated hereby and thereby, including the Merger.
Following the receipt of all Regulatory Approvals (without regard to any waiting periods associated
therewith), MutualFirst Financial shall permit no more than two representatives of Northwest Bancshares or Northwest Bank to attend any meeting of its Board of Directors or the Executive and Loan Committees thereof as an observer, subject to the
Confidentiality Agreement, provided that MutualFirst Financial shall not be required to permit the representative to remain present during any confidential discussion of this Agreement and the transactions contemplated hereby or any third party
proposal to acquire control of MutualFirst Financial or during any other matter (i) that the respective Board of Directors has reasonably determined to be confidential with respect to the participation of Northwest Bancshares or Northwest Bank, or
(ii) that MutualFirst Financial would not be required to disclose under Section 6.3.3 hereof.
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If requested by Northwest Bancshares in writing no later than sixty (60) days prior to the Effective
Time, and subject to the occurrence of the Effective Time, MutualFirst Financial shall cause to be adopted prior to the Effective Time resolutions of the Board of Directors of MutualFirst Financial to terminate the MutualFirst Financial 401(k) Plan
and any amendments to such 401(k) Plan necessary to effect a termination, immediately prior to the Effective Time or cease all contributions to the MutualFirst Financial 401(k) Plan maintained or sponsored by MutualFirst Financial or MutualBank, and
to prohibit the entry of new participants to the MutualFirst Financial 401(k) Plan as of the day preceding the Closing Date. In the sole discretion of Northwest Bancshares, the MutualFirst Financial 401(k) Plan may be merged into the Northwest
Bancshares 401(k) Plan or terminated immediately prior to the Effective Time. The form and substance of such resolutions and any necessary amendments to the MutualFirst Financial 401(k) Plan shall be subject to the review and approval of Northwest
Bancshares, which shall not be unreasonably withheld. MutualFirst Financial will deliver to Northwest Bancshares an executed copy of such resolutions and any necessary amendments as soon as practicable following their adoption by the Board of
Directors of MutualFirst Financial and will fully comply with such resolutions and any necessary amendments. If, in accordance with this Section 6.12, Northwest Bancshares requests in writing that MutualFirst Financial freeze entry of new
participants into the MutualFirst Financial 401(k) Plan, (but does not immediately terminate or merge the 401(k) Plan), MutualFirst Financial will take such actions as Northwest Bancshares may reasonably require in furtherance of the assumption of
the MutualFirst Financial 401(k) Plan by Northwest Bancshares, including, but not limited to, adopting such amendments to the 401(k) Plan as may be necessary to effect such assumption. If Northwest Bancshares requests that MutualFirst Financial
terminate the MutualFirst Financial 401(k) Plan, MutualFirst Financial will, prior to the Closing Date, submit a request to the IRS for a favorable determination letter as to the MutualFirst Financial 401(k) Plan’s tax-qualified status under Code
Section 401(a) on termination. After the Effective Time, Northwest Bancshares will be responsible for any procedures necessary for winding down the MutualFirst Financial 401(k) Plan, including, without limitation, preparing any further filings with
the IRS, locating plan participants, distributing plan accounts and establishing individual retirement accounts to receive plan distributions, if necessary. In addition, as soon as practicable after the receipt of such favorable determination letter,
Northwest Bancshares will allow Continuing Employees to rollover the assets of their accounts in the MutualFirst Financial 401(k) Plan (including any loans and promissory notes) to the Northwest Bancshares 401(k) Plan and, if necessary, make any
amendments to the Northwest Bancshares 401(k) Plan to effectuate such rollovers.
MutualFirst Financial will take all necessary steps to permit the outstanding Junior Subordinated
Debentures issued or assumed by MutualFirst Financial in conjunction with the sale of $10.0 million of MutualFirst Trust Preferred Securities through the MutualFirst Trusts to transfer to Northwest Bancshares at the Effective Time.
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MutualFirst Financial will take all steps, as may be necessary or appropriate, to cause the
transactions contemplated by Article III and any other dispositions of equity securities of MutualFirst Financial (including derivative securities) or acquisitions of equity securities of Northwest Bancshares in connection with the consummation of
the transactions contemplated by this Agreement to be exempt under Rule 16b-3 promulgated under the Exchange Act.
To the extent applicable, MutualFirst Financial and MutualBank will take all such actions as may be
required or as Northwest Bancshares may reasonably request in order to fully and timely comply with the requirements of the federal Worker Adjustment and Retraining Notification Act of 1988 (“WARN Act”), including providing notices to MutualFirst
Financial’s and MutualBank’s employees.
During the period from the date of this Agreement to the Effective Time, Northwest Bancshares will,
and it will cause each Northwest Bancshares Subsidiary to, use commercially reasonable efforts to preserve intact its business organization and assets and maintain its rights and franchises; and voluntarily take no action that would: (i) adversely
affect the ability of the parties to obtain the Regulatory Approvals or materially increase the period of time necessary to obtain such approvals; (ii) materially adversely affect its ability to perform its covenants and agreements under this
Agreement; or (iii) result in the representations and warranties contained in Article V of this Agreement not being true and correct on the date of this Agreement or at any future date on or prior to the Closing Date or in any of the conditions set
forth in Article IX hereof not being satisfied.
From time to time prior to the Effective Time, Northwest Bancshares will promptly supplement or amend
the Northwest Bancshares Disclosure Schedule delivered in connection herewith with respect to any matter hereafter arising which, if existing, occurring or known at the date of this Agreement, would have been required to be set forth or described in
such Northwest Bancshares Disclosure Schedule or which is necessary to correct any information in such Northwest Bancshares Disclosure Schedule which has been rendered materially inaccurate thereby. No supplement or amendment to such Northwest
Bancshares Disclosure Schedule will have any effect for the purpose of determining satisfaction of the conditions set forth in Article IX.
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Northwest Bancshares will use all commercially reasonable efforts, and will cause each Northwest
Bancshares Subsidiary to use all commercially reasonable efforts, to obtain as soon as practicable all consents and approvals of any other persons necessary or desirable for the consummation of the transactions contemplated by this Agreement.
Without limiting the generality of the foregoing, Northwest Bancshares will use the services of a professional proxy soliciting firm to provide assistance in obtaining the stockholder vote required to be obtained by it hereunder.
Subject to the terms and conditions herein provided, Northwest Bancshares agrees to use all
commercially 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. Northwest Bancshares will not, and will not permit any Northwest Bancshares Subsidiary to, take any action or knowingly fail to take any reasonable action that would, or would be reasonably likely to, prevent, impede, or delay the
Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Code.
In the event that Northwest Bancshares determines that a condition to its obligation to complete the
Merger cannot be fulfilled and that it will not waive that condition, it will promptly notify MutualFirst Financial.
7.6.1 Except as set forth in a MutualFirst Financial Disclosure Schedule or as otherwise provided in Section 6.12 or this Section 7.6.1 of this
Agreement, as of or after the Effective Time, and at Northwest Bancshares’ election and subject to the requirements of the Code, the MutualFirst Financial Compensation and Benefit Plans may continue to be maintained separately, consolidated, frozen
or terminated. If reasonably requested by Northwest Bancshares in writing not later than ten (10) days before the Closing Date and provided that Northwest Bancshares has indicated in writing that the conditions to its obligations set forth in
Section 9.2 hereof have been satisfied or waived, MutualFirst Financial will take such steps within its power to effectuate a freeze or termination of any MutualFirst Financial Compensation and Benefit Plan as of the Effective Time (other than the
MutualFirst Financial Pension Plan), provided that the MutualFirst Financial Compensation and Benefit Plan can be frozen or terminated within such period under the terms of such plan and any applicable laws and regulations. In the event of a
consolidation of any or all of such plans or in the event of termination of any MutualFirst Financial Compensation and Benefit Plan, except as otherwise set forth in this Section 7.6.1, employees of MutualFirst Financial or MutualBank who continue
as employees of Northwest Bancshares or Northwest Bank after the Effective Time (“Continuing Employees”) will be eligible to participate in any Northwest Bank employee plan of similar character immediately upon such consolidation or as of the first
entry date coincident with or immediately following
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such termination. Continuing Employees will receive credit for service with MutualFirst
Financial or MutualBank for purposes of determining eligibility and vesting but not for purposes of accruing or computing benefits under: (i) any similar existing Northwest Bancshares benefit plan except that Continuing Employees, in eligible roles
for the following benefits, will be treated as new employees under the Northwest Bancshares Pension Plan, the Northwest Bank holiday bonus plan, Northwest Bank’s management bonus plan and all other Northwest Bancshares Stock Benefit Plans, or (ii)
any new Northwest Bancshares benefit plan in which Continuing Employees or their dependents would be eligible to enroll. Notwithstanding the foregoing, Continuing Employees will receive credit for years of service with MutualFirst Financial and
any MutualFirst Financial Subsidiary for purposes of determining leave days under Northwest Bank’s paid time off (“PTO”) leave policy and for calculation of severance benefits if later terminated by Northwest Bank. Such service will also apply for
purposes of satisfying any waiting periods, actively-at-work requirements and evidence of insurability requirements. Continuing Employees will have no rights in Northwest Bank’s terminated post-retirement health benefit plan. This Agreement shall
not be construed to limit the ability of Northwest Bancshares or Northwest Bank to terminate the employment of any MutualFirst Financial employee or the employment of any MutualFirst Financial Subsidiary or to review any MutualFirst Financial
Compensation and Benefit Plan from time to time and to make such changes (including terminating any such plan) as they deem appropriate.
7.6.2 Northwest Bancshares will honor the contractual terms of all employment, consulting, change in control, and severance agreements and
MutualFirst Financial Non-Qualified Agreements, if any, listed on MutualFirst Financial Disclosure Schedule 4.13.13, except to the extent any such agreement is
superseded or terminated as of, or following, the Effective Time of the Bank Merger, or as otherwise set forth herein. Northwest Bancshares, or at Northwest Bancshares request, MutualFirst Financial or MutualBank, will provide to the individuals
listed in MutualFirst Financial Disclosure Schedule 7.6.2 who remain employees of MutualFirst Financial or MutualBank until the Effective Time, payment of the
amounts that would be payable under such employees employment or change in control or severance agreement as if such individual’s employment was terminated at the Effective Time, even if such individual remains employed by Northwest Bancshares or
Northwest Bank following the Effective Time; provided, however that to the extent that any such payment, when aggregated with any other payments contingent on a change in control of MutualFirst Financial or MutualBank would constitute a “parachute
payment” (as such term is defined in Section 280G of the Code), such payments and/or benefits will be reduced to the extent necessary to avoid penalties under Sections 280G and 4999 of the Code. The estimated amounts payable under such employment
and change in control agreements are set forth in the MutualFirst Financial Disclosure Schedule 4.13.13. Contemporaneously with the execution of this Agreement,
Northwest Bancshares and/or Northwest Bank will enter into employment agreements with executives Xxxxx X. Xxxxxx, Xxxxxxxxxxx X. Xxxxxxxx and Xxxxxxxxxxx X. Xxxx, in the form set forth in Disclosure Schedule 7.6.2 and effective as of the Effective
Time, subject to cancellation or termination of their existing employment agreements with MutualFirst Financial. To the extent any payments are made at Closing under any MutualFirst Financial employment agreements and/or change in control
agreements in connection with such agreements cancellation or termination, without the requirement of a separation from service, such executive shall be required to enter into a settlement agreement substantially in the form attached at Northwest
Bancshares Disclosure Schedule 7.6.2 contemporaneously with the execution of this Agreement. Northwest Bancshares shall consider whether to offer any Continuing Employee an employment or change in control agreement or to offer an employee whose
employment is terminated in connection with the Merger a consulting agreement or to request that an employee enter into a non-compete and/or non-solicitation agreement, for appropriate consideration, if applicable.
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7.6.3 Any employee of MutualFirst Financial or any MutualFirst Financial Subsidiary who does not have an employment agreement, change in control
agreement or severance agreement and who is not eligible for and entitled to a severance benefit under any other severance plan or program maintained by or with MutualFirst Financial or its Subsidiaries, who is not offered employment with Northwest
Bancshares or one of its Subsidiaries or whose employment is terminated by Northwest Bancshares or one of its Subsidiaries (other than for cause); including because such employee is not offered employment or is terminated as a result of customary
background screening by Northwest Bank at or within twelve (12) months after the Closing Date, will (i) receive a cash payment equal to two weeks of such employee’s current base salary (or average hourly wage over a two (2) week period) for each
year of service with MutualFirst Financial, MutualBank or any predecessor to MutualFirst Financial or MutualBank, with a minimum payment of four (4) weeks base pay and a maximum of twenty-six (26) weeks base pay payable to each such employee, and
(ii) be entitled to continue to receive the same or substantially similar medical insurance coverage to which such employee and his or her eligible dependents were enrolled as of the Closing Date (on the basis of the same employee contribution
rate) for a period equal to the number of weeks’ pay to which such employee is entitled pursuant to clause (i) hereof, subject to the execution of a release of claims by such employee in a form satisfactory to Northwest Bancshares. Notwithstanding
the forgoing, at the written direction of Northwest Bancshares to MutualFirst Financial prior to the Closing, MutualFirst Financial will pay such cash severance benefit to any MutualFirst Financial employee or any MutualFirst Financial Subsidiary
employee whose employment is terminated at Closing. Nothing set forth herein shall be construed to limit the period of continued health care coverage that such employee would be entitled under COBRA.
7.6.4 Immediately prior to the Closing, MutualFirst Financial will pay the cash value of any accrued but unused vacation and sick leave to its
employees, whether such employees are terminated in connection with the Merger or are Continuing Employees.
7.6.5 In the event of any termination of any MutualFirst Financial health plan or consolidation of any such plan with any Northwest Bancshares or
Northwest Bank health plan, Northwest Bancshares will make available to Continuing Employees and their eligible dependents employer-provided health coverage on the same basis as it provides such coverage to Northwest Bancshares employees. Unless a
Continuing Employee affirmatively terminates coverage under a MutualFirst Financial health plan prior to the time that such Continuing Employee becomes eligible to participate in the Northwest Bancshares health plan, no coverage of any of the
Continuing Employees or their dependents will terminate under any of the MutualFirst Financial health plans prior to the time such Continuing Employees and their dependents become eligible to participate in the health plans, programs and benefits
common to all employees of Northwest Bancshares and their dependents. In the event of a termination or consolidation of any MutualFirst Financial health plan, terminated MutualFirst Financial employees and qualified beneficiaries will have the
right to continued coverage under group health plans of Northwest Bancshares in accordance with COBRA.
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7.6.6 Northwest Bancshares agrees to take all such actions related to the MutualFirst Financial 401(k) Plan as stated in Section 6.12 of this
Agreement.
7.6.7 Effective as of the Closing Date, Northwest Bancshares will establish the MutualFirst Financial Advisory Board and each person who currently
serves on the MutualFirst Financial Board of Directors (excluding the MutualFirst Financial board member who will serve on the Northwest Bancshares and Northwest Bank Boards of Directors) shall be offered membership on the MutualFirst Financial
Advisory Board. Members of the MutualFirst Financial Advisory Board shall serve for an initial term of one (1) year from the Effective Time of the Merger. The annual compensation of the MutualFirst Financial Advisory Board shall not exceed the customary amount of compensation generally
provided by Northwest Bancshares to members of its other similar advisory boards.
7.6.8 Retention Pool/Stay Bonus. Northwest Bancshares will establish a retention pool/stay bonus providing for retention/stay bonuses to be paid
to Continuing Employees who remain employed with Northwest Bancshares or Northwest Bank after the Closing (other than employees who are subject to employment contracts or other contracts providing for severance) for a period specified by Northwest
Bancshares or Northwest Bank. The amount and payment date of the retention/stay bonus for each such employee will be determined by Northwest Bancshares in consultation with MutualFirst Financial.
7.6.9 Northwest Bancshares will use commercially reasonable efforts to (i) waive all limitations as to preexisting conditions, exclusions and
waiting periods with respect to participation and coverage requirements applicable to the Continuing Employees and their family members under the health and welfare plans of Northwest Bancshares and its Affiliates (each a “Northwest Bancshares
Welfare Plan”) to the extent waived or otherwise satisfied under the applicable corresponding MutualFirst Financial Compensation and Benefit Plan immediately prior to the Closing Date and (ii) provide each Continuing Employee and his or her
eligible dependents with credit under the Northwest Bancshares Welfare Plans for any co-payments and deductibles paid under corresponding MutualFirst Financial Compensation and Benefit Plans prior to the Closing Date in the calendar year in which
the Closing Date occurs for purposes of satisfying any applicable deductible or out of-pocket requirements under any Northwest Bancshares Welfare Plans in which the Continuing Employees are eligible to participate after the Closing Date.
7.7.1. Northwest Bancshares will maintain, or will cause Northwest Bank to maintain, in effect for six (6) years following the Effective Time,
the current directors’ and officers’ liability insurance policies maintained by MutualFirst Financial (provided, that Northwest Bancshares may substitute therefor policies of at least the same coverage containing terms and conditions which are not
materially less favorable) with respect to matters occurring prior to the Effective Time; provided, however, that in no event will Northwest Bancshares be required to expend pursuant to this Section 7.7.1, in the aggregate for such policy or
policies, more than 150% of the annual cost currently expended by MutualFirst Financial with respect to
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such insurance (the “Maximum Amount”); provided, further, that if the amount of the annual premiums necessary to maintain or procure such insurance coverage exceeds the Maximum Amount, Northwest Bancshares will maintain the most advantageous policies of directors’ and officers’ insurance obtainable for an annual premium equal to the Maximum Amount. In connection with the foregoing, MutualFirst Financial agrees in order for Northwest Bancshares to fulfill its agreement to provide directors and officers liability insurance policies for six (6) years to provide such insurer or substitute insurer with such representations as such insurer may request with respect to the reporting of any prior claims.
7.7.2. In addition to Section 7.7.1, after the Effective Time, Northwest Bancshares will indemnify, defend and hold harmless each person who is
now, or who has been at any time before the date hereof or who becomes before the Effective Time, an officer or director of MutualFirst Financial or a MutualFirst Financial Subsidiary (including, solely to the extent required by the Agreement and
Plan of Merger, dated as of October 4, 2017, by and between MutualFirst Financial and Universal Bancorp, the “Universal Indemnified Parties”, as defined in the Agreement and Plan of Merger, dated as of October 4, 2017, by and between the Universal
Indemnified Parties, with such indemnification expiring on February 28, 2024) (the “Indemnified Parties”) against all losses, claims, damages, costs, expenses (including attorneys’ fees), liabilities or judgments or amounts that are paid in
settlement (which settlement shall require the prior written consent of Northwest Bancshares, which consent will not be unreasonably withheld, conditioned or delayed) of or in connection with any claim, action, suit, proceeding or investigation,
whether civil, criminal, or administrative (each a “Claim”), in which an Indemnified Party is, or is threatened to be made, a party or witness in whole or in part on or arising in whole or in part out of the fact that such person is or was a
director, officer or employee of MutualFirst Financial or a MutualFirst Financial Subsidiary if such Claim pertains to any matter of fact arising, existing or occurring before the Effective Time (including, without limitation, the Merger and the
other transactions contemplated hereby), regardless of whether such Claim is asserted or claimed before, or after, the Effective Time (the “Indemnified Liabilities”), to the fullest
extent as would have been permitted by MutualFirst Financial under MutualFirst Financial’s Articles of Incorporation and Bylaws, to the extent not prohibited by applicable law. Northwest Bancshares will pay expenses in advance of the final
disposition of any such action or proceeding to each Indemnified Party to the fullest extent permitted by applicable law (to the extent not prohibited by federal law) upon receipt of an undertaking to repay such advance payments if the Indemnified
Party is adjudicated or determined to be not entitled to indemnification in the manner set forth below. Any Indemnified Party wishing to claim indemnification under this Section 7.7.2 upon learning of any Claim, shall notify Northwest Bancshares
(but the failure so to notify Northwest Bancshares will not relieve Northwest Bancshares from any liability which it may have under this Section 7.7.2, except to the extent such failure materially prejudices Northwest Bancshares) and shall deliver
to Northwest Bancshares the undertaking referred to in the previous sentence. In the event of any such Claim (whether arising before or after the Effective Time) (1) Northwest Bancshares will have the right to assume the defense thereof (in which
event the Indemnified Parties will cooperate in the defense of any such matter) and upon such assumption Northwest Bancshares will not be liable to any Indemnified Party for any legal expenses of other counsel or any other expenses subsequently
incurred by any Indemnified Party in connection with the defense thereof, except that if Northwest Bancshares elects not to assume such defense, or counsel for the
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Indemnified Parties reasonably advises the Indemnified Parties that there are or may be (whether
or not any have yet actually arisen) issues which raise conflicts of interest between Northwest Bancshares and the Indemnified Parties, the Indemnified Parties may retain counsel reasonably satisfactory to them, and Northwest Bancshares will pay
the reasonable fees and expenses of such counsel for the Indemnified Parties, (2) except to the extent otherwise required due to conflicts of interest, Northwest Bancshares shall be obligated pursuant to this paragraph to pay for only one firm or
counsel for all Indemnified Parties and the reasonable fees and expenses of such law firm shall be paid promptly as statements are received unless there is a conflict of interest that necessitates more than one law firm, (3) Northwest Bancshares
shall not be liable for any settlement effected without its prior written consent (which consent will not be unreasonably withheld, conditioned or delayed), and (4) no Indemnified Party will be entitled to indemnification hereunder with respect to
a matter as to which (x) he has been adjudicated in any proceeding not to have acted in good faith and in a manner he reasonably believed to be in, or not opposed to, the best interests of MutualFirst Financial or any MutualFirst Financial
Subsidiary, or (y) in the event that a proceeding is compromised or settled so as to impose any liability or obligation upon an Indemnified Party, if there is a determination that with respect to said matter said Indemnified Party did not act in
good faith and in a manner he reasonably believed to be in, or not opposed to, the best interests of MutualFirst Financial or any MutualFirst Financial Subsidiary. If Northwest Bancshares or any of its successors or assigns consolidates with or
merges into any other entity and is not the continuing or surviving entity of such consolidation or merger or transfers all or substantially all of its assets to any other entity, then and in each case, proper provision will be made so that the
successors and assigns of Northwest Bancshares assume the obligations set forth in this Section 7.7.
7.7.3. The obligations of Northwest Bancshares provided under this Section 7.7 are intended to be enforceable against Northwest Bancshares
directly by the Indemnified Parties and shall be binding on all respective successors and permitted assigns of Northwest Bancshares. Northwest Bancshares will pay all reasonable costs, including attorneys’ fees, as incurred and in advance of the
final disposition of any claim, action, suit, proceeding or investigation by any Indemnified Party in successfully enforcing the indemnity and other obligations provided for in this Section 7.7 to the fullest extent permitted under applicable law;
provided, however such payment of costs shall be immediately reimbursed to Northwest Bancshares by such Indemnified Party if the Indemnified Party is not entitled to the indemnification or other obligations provided for in this Section 7.7. The
rights of each Indemnified Party hereunder are in addition to any other rights such Indemnified Party may have under applicable law.
Northwest Bancshares agrees to list on the Nasdaq (or such other national securities exchange on
which the shares of the Northwest Bancshares Common Stock shall be listed as of the Closing Date), subject to official notice of issuance, the shares of Northwest Bancshares Common Stock to be issued in the Merger.
Northwest Bancshares agrees at all times from the date of this Agreement until the Merger
Consideration has been paid in full to reserve a sufficient number of shares of Northwest Bancshares Common Stock and to maintain sufficient liquid accounts to fulfill its obligations under this Agreement.
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Northwest Bancshares shall take all necessary steps to assume, as of the Effective Time, the
obligations of MutualFirst Financial under the outstanding Junior Subordinated Debentures issued or assumed by MutualFirst Financial in conjunction with the sale of $10.0 million of MutualFirst Trust Preferred Securities through the MutualFirst
Trusts and the indentures, guarantees and declarations of trust related thereto.
Northwest Bancshares will take all steps, as may be necessary or appropriate, to cause the
transactions contemplated by Article III and any other dispositions of equity securities of MutualFirst Financial (including derivative securities) or acquisitions of equity securities of Northwest Bancshares in connection with the consummation of
the transactions contemplated by this Agreement to be exempt under Rule 16b-3 promulgated under the Exchange Act.
In the event that Northwest Bank terminates or lays off a sufficient number of employees following
the Effective Date, or MutualFirst Financial or Mutual First Bank terminates or lays off a sufficient number of employees prior to the Effective Date at the request of Northwest Bancshares or Northwest Bank that collectively would trigger a notice
requirement under the WARN Act or any similar applicable Law with respect to (i) MutualFirst Financial Employees employed during the 90-day period preceding the Effective Time, and (ii) MutualFirst Financial Employees employed by Northwest Bancshares
or Northwest Bank during the 90 day period after the Effective Time, Northwest Bancshares will be responsible for compliance with the WARN Act. MutualFirst Financial and MutualBank will, pursuant to Section 6.15 hereof, cooperate in providing
information reasonably requested by Northwest Bancshares that is necessary for Northwest Bancshares to prepare and distribute notices that Northwest Bancshares may desire to provide prior to the Effective Time under the WARN Act.
8.1.1. Subject to Section 6.10.5, MutualFirst Financial will (i) as promptly as practicable after the Merger Registration Statement is
declared effective by the SEC, take all steps necessary to duly call, give notice of, convene and hold a meeting of its stockholders, which may be an annual meeting, for the purpose of considering this Agreement and the Merger, and for such other
purposes as may be, in MutualFirst Financial’s reasonable judgment, necessary or desirable (the “MutualFirst Financial Stockholders Meeting”). Subject to Section 6.10.5,
MutualFirst Financial shall, (i) through MutualFirst Financial’s Board of Directors,
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recommend to its
stockholders approval and adoption of this Agreement (the “MutualFirst Financial Recommendation”), (ii) include such recommendation in the Proxy Statement-Prospectus (as defined below) for such MutualFirst Financial Stockholders Meeting and (iii) use commercially reasonable efforts to obtain from the MutualFirst Financial Stockholders a vote approving and adopting this Agreement, including utilizing
the services of a professional proxy soliciting firm.
8.1.2. Northwest Bancshares will (i) as promptly as practicable after the Merger Registration Statement is declared effective by the SEC, take
all steps necessary to duly call, give notice of, convene and hold a meeting of its stockholders, which may be an annual meeting, for the purpose of approving the issuance of the Northwest Bancshares Common Stock to be issued in connection with the
Merger, and for such other purposes as may be, in Northwest Bancshares’ reasonable judgment, necessary (the “Northwest Bancshares Stockholders Meeting”). Northwest Bancshares
shall, (i) through Northwest Bancshares’ Board of Directors, recommend to its stockholders approving the issuance of the Northwest Bancshares Common Stock to
be issued in connection with the Merger (the “Northwest Bancshares Recommendation”), (ii) include
such recommendation in the Proxy Statement-Prospectus (as defined below) for such Northwest Bancshares Stockholders Meeting and (iii) use commercially reasonable efforts to obtain from the Northwest Bancshares Stockholders a vote approving the
issuance of the Northwest Bancshares Common Stock to be issued in connection with the Merger, including utilizing the services of a professional proxy soliciting firm.
8.1.3. For the purposes (x) of registering Northwest Bancshares Common Stock to be offered to holders of MutualFirst Financial Common Stock in
connection with the Merger with the SEC under the Securities Act, (y) of holding the MutualFirst Financial Stockholders Meeting and (z) of holding the Northwest Bancshares Stockholder Meeting, Northwest Bancshares shall draft and prepare, and
MutualFirst Financial shall cooperate in the preparation of, the Merger Registration Statement, including a proxy statement and prospectus satisfying all applicable requirements of applicable state securities and banking laws, and of the Securities
Act and the Exchange Act, and the rules and regulations thereunder (such proxy statement/prospectus in the form mailed by MutualFirst Financial to the MutualFirst Financial stockholders, and mailed by Northwest Bancshares to Northwest Bancshares
stockholders together with any and all amendments or supplements thereto, being herein referred to as the “Proxy Statement-Prospectus”). Northwest Bancshares shall provide MutualFirst Financial and its counsel with appropriate opportunity to
review and comment on the Proxy Statement-Prospectus prior to the time it is initially filed with the SEC or any amendments are filed with the SEC. Each of Northwest Bancshares and MutualFirst Financial shall promptly notify the other party upon
the receipt of any comments from the SEC or its staff, or any request from the SEC or its staff for amendments or supplements to the Merger Registration Statement or Proxy Statement-Prospectus, as the case may be, shall consult with the other party
prior to responding to any such comments or requests or filing any amendment or supplement to the Merger Registration Statement or Proxy Statement-Prospectus, as the case may be, and shall provide the other party with copies of all correspondence
between such party and its Representatives on the one hand, and the SEC and its staff on the other hand. Northwest Bancshares shall file the Merger Registration Statement, including the Proxy Statement-Prospectus, with the SEC. Each of Northwest
Bancshares and MutualFirst Financial shall use their best efforts to have the Merger Registration Statement declared effective under the Securities Act as promptly as practicable
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after such filing, and MutualFirst Financial and Northwest Bancshares shall thereafter promptly
mail the Proxy Statement-Prospectus to its respective stockholders, except as may be provided under Section 8.1.1 and 8.1.2 above. Northwest Bancshares shall also use its reasonable best efforts to obtain all necessary state securities law or “Blue
Sky” permits and approvals required to carry out the transactions contemplated by this Agreement, and MutualFirst Financial shall furnish all information concerning MutualFirst Financial and the holders of MutualFirst Financial Common Stock as may
be reasonably requested in connection with any such action.
8.1.4. Northwest Bancshares shall, as soon as is practicable (provided that MutualFirst Financial has timely provided all information requested
in writing by Northwest Bancshares or its counsel, within forty-five (45) days after the date hereof), file the Merger Registration Statement with the SEC under the Securities Act in connection with the transactions contemplated by this Agreement.
Northwest Bancshares will advise MutualFirst Financial promptly after Northwest Bancshares receives notice of the time when the Merger Registration Statement has become effective or any supplement or amendment has been filed, of the issuance of any
stop order or the suspension of the qualifications of the shares of Northwest Bancshares Common Stock issuable pursuant to the Merger Registration Statement, or the initiation or threat of any proceeding for any such purpose, or of any request by
the SEC for the amendment or supplement of the Merger Registration Statement, or for additional information, and Northwest Bancshares will provide MutualFirst Financial with as many copies of such Merger Registration Statement and all amendments
thereto promptly upon the filing thereof as MutualFirst Financial may reasonably request.
8.1.5. MutualFirst Financial and Northwest Bancshares shall promptly notify the other party if at any time it becomes aware that the Proxy
Statement-Prospectus or the Merger Registration Statement contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements contained therein, in light of the
circumstances under which they were made, not misleading. In such event, MutualFirst Financial shall cooperate with Northwest Bancshares in the preparation of a supplement or amendment to such Proxy Statement-Prospectus that corrects such
misstatement or omission, and Northwest Bancshares shall file an amended Merger Registration Statement with the SEC and MutualFirst Financial and Northwest Bancshares shall mail an amended or supplemented Proxy Statement-Prospectus to their
respective stockholders following the amended Merger Registration Statement becoming effective.
8.1.6. Notwithstanding anything to the contrary stated above, prior to filing and mailing, as applicable, the Merger Registration Statement or
Proxy Statement/Prospectus (or any amendment or supplement thereto), or responding to any comments of the SEC with respect thereto, the party responsible for filing or mailing such document shall provide the other party a reasonable opportunity to
review and comment on such document or response and shall discuss with the other party, and include in such document or response, comments reasonably and promptly proposed by the other party.
8.2.1. The Parties will cooperate with each other and use best efforts to promptly prepare all necessary documentation, to effect all necessary
filings and to obtain all necessary permits, consents, waivers, approvals and authorizations of the Bank Regulators and any other
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Governmental Entities necessary to consummate the transactions contemplated by this Agreement
(including with regard to any MutualBank branch closing, as required by Northwest Bancshares or otherwise) and Northwest Bancshares will make all necessary filings in respect of the required Regulatory Approvals as promptly as practicable after the
date hereof (provided that MutualFirst Financial has timely provided all information requested in writing by Northwest Bancshares or its counsel, within forty-five (45) days after the date hereof).
8.2.2. In no event shall Northwest Bancshares be required to agree to any prohibition, limitation, or other requirement that would (a) prohibit
or materially limit the ownership or operation by Northwest Bancshares or any Northwest Bancshares Subsidiary of all or any material portion of the business or assets of MutualFirst Financial or any MutualFirst Financial Subsidiary, (b) compel
Northwest Bancshares or any Northwest Bancshares Subsidiary to dispose of or hold separate all or any material portion of the business or assets of MutualFirst Financial or any MutualFirst Financial Subsidiary, (c) impose a material compliance
burden, penalty or obligation on Northwest Bancshares or any Northwest Bancshares Subsidiary resulting from noncompliance by MutualFirst Financial with its regulatory obligations; or (d) otherwise materially impair the value of MutualFirst
Financial and the MutualFirst Financial Subsidiaries to Northwest Bancshares and the Northwest Bancshares Subsidiaries (any such requirement alone, or more than one such requirement together, a “Burdensome Condition”). The Parties will furnish
each other and each other’s counsel with all information concerning themselves, their subsidiaries, directors, officers and stockholders and such other matters as may be necessary or advisable in connection with any application, petition or any
other statement or application made to any Bank Regulator or Governmental Entity in connection with the Merger, and the other transactions contemplated by this Agreement. MutualFirst Financial shall have the right to review, and to the extent
practicable to consult with Northwest Bancshares on, the information which appears in any filing made in connection with the transactions contemplated by this Agreement with any Bank Regulator or any Governmental Entity. Northwest Bancshares shall
give MutualFirst Financial and its counsel the opportunity to review, and to the extent practicable to consult with Northwest Bancshares on, each filing prior to its being filed with a Bank Regulator and shall give MutualFirst Financial and its
counsel the opportunity to review all regulatory filings, amendments and supplements to such filings and all responses to requests for additional information and replies to comments prior to their being filed with, or sent to, a Bank Regulator.
The respective obligations of each party under this Agreement shall be subject to the fulfillment at
or prior to the Closing Date of the following conditions, none of which may be waived:
9.1.1. Stockholder Approvals. This Agreement
and the transactions contemplated hereby shall have been approved by the requisite vote of the stockholders of MutualFirst Financial, and the issuance of Northwest Bancshares Common Stock in connection with the Merger shall have been approved by
the requisite vote of the stockholders of Northwest Bancshares.
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9.1.2. Injunctions. None of the parties
hereto shall be subject to any order, decree or injunction of a court or agency of competent jurisdiction, and no statute, rule or regulation shall have been enacted, entered, promulgated, interpreted, applied or enforced by any Governmental Entity
or Bank Regulator, that enjoins or prohibits the consummation of the transactions contemplated by this Agreement.
9.1.3. Regulatory Approvals. All Regulatory
Approvals required to consummate the transactions contemplated by this Agreement shall have been obtained and shall remain in full force and effect and all waiting periods relating to such approvals shall have expired.
9.1.4. Effectiveness of Merger Registration Statement.
The Merger Registration Statement shall have become effective under the Securities Act and no stop order suspending the effectiveness of the Merger Registration Statement shall have been issued, and no proceedings for that purpose shall have been
initiated or threatened by the SEC and, if the offer and sale of Northwest Bancshares Common Stock in the Merger is subject to the “Blue Sky” laws of any state, shall not be subject to a stop order of any state securities commissioner.
9.1.5. Nasdaq Listing. The shares of
Northwest Bancshares Common Stock to be issued in the Merger shall have been authorized for listing on the Nasdaq, subject to official notice of issuance.
The obligations of Northwest Bancshares under this Agreement shall be further subject to the
satisfaction of the conditions set forth in Sections 9.2.1 through 9.2.6 at or prior to the Closing Date:
9.2.1. Representations and Warranties. Each
of the representations and warranties of MutualFirst Financial set forth in this Agreement shall be true and correct as of the date of this Agreement and upon the Effective Time with the same effect as though all such representations and warranties
had been made at the Effective Time (except to the extent such representations and warranties speak as of an earlier date), in any case subject to the standard set forth in Section 4.1; and MutualFirst Financial shall have delivered to Northwest
Bancshares a certificate to such effect signed by the Chief Executive Officer and the Chief Financial Officer of MutualFirst Financial as of the Effective Time.
9.2.2. Agreements and Covenants. MutualFirst
Financial shall have performed in all material respects all obligations and complied in all material respects with all agreements or covenants to be performed or complied with by it at or prior to the Effective Time, and Northwest Bancshares shall
have received a certificate signed on behalf of MutualFirst Financial by the Chief Executive Officer and Chief Financial Officer of MutualFirst Financial to such effect dated as of the Effective Time.
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9.2.3. Permits, Authorizations, Etc.
MutualFirst Financial and the MutualFirst Financial Subsidiaries shall have obtained any and all material permits, authorizations, consents, waivers, clearances or approvals required for the lawful consummation of the Merger, the failure of which
to obtain would have a Material Adverse Effect on either MutualFirst Financial or Northwest Bancshares.
9.2.4. Regulatory Approvals. None of the Regulatory Approvals necessary to consummate the
Merger and the transactions contemplated by this Agreement shall include a Burdensome Condition.
9.2.5. Tax Opinion. Northwest Bancshares shall
have received an opinion, dated the Closing Date, of Xxxx Xxxxxx, PC, to the effect that the Merger will constitute a reorganization under Section 368(a) of the Code. In rendering its opinion, such counsel may require and rely upon customary
representations, contained in certificates of officers of Northwest Bancshares and MutualFirst Financial, reasonably satisfactory in form and substance to such counsel.
9.2.6. Certificates. MutualFirst Financial
will furnish Northwest Bancshares with such certificates of its officers or others and such other documents to evidence fulfillment of the conditions set forth in this Section 9.2 as Northwest Bancshares may reasonably request.
9.2.7. MutualBank Advisors. MutualFirst Financial will furnish Northwest Bancshares evidence of the dissolution or sale of Mutual Risk Advisors, effective as of or prior to the
Closing Date.
The obligations of MutualFirst Financial under this Agreement shall be further subject to the
satisfaction of the conditions set forth in Sections 9.3.1 through 9.3.6 at or prior to the Closing Date:
9.3.1. Representations and Warranties. Each
of the representations and warranties of Northwest Bancshares set forth in this Agreement shall be true and correct as of the date of this Agreement and upon the Effective Time with the same effect as though all such representations and warranties
had been made at the Effective Time (except to the extent such representations and warranties speak as of an earlier date), in any case subject to the standard set forth in Section 5.1; and Northwest Bancshares shall have delivered to MutualFirst
Financial a certificate to such effect signed by the Chief Executive Officer and the Chief Financial Officer of Northwest Bancshares as of the Effective Time.
9.3.2. Agreements and Covenants. Northwest
Bancshares shall have performed in all material respects all obligations and complied in all material respects with all agreements or covenants to be performed or complied with by it at or prior to the Effective Time, and MutualFirst Financial
shall have received a certificate signed on behalf of Northwest Bancshares by the Chief Executive Officer and Chief Financial Officer of Northwest Bancshares to such effect dated as of the Effective Time.
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9.3.3. Permits, Authorizations, Etc.
Northwest Bancshares shall have obtained any and all material permits, authorizations, consents, waivers, clearances or approvals required for the lawful consummation of the Merger, the failure of which to obtain would have a Material Adverse
Effect on Northwest Bancshares.
9.3.4. Payment of Merger Consideration.
Northwest Bancshares shall have delivered the Exchange Fund to the Exchange Agent on or before the Closing Date and the Exchange Agent shall provide MutualFirst Financial with confirmation of such delivery.
9.3.5. Tax Opinion. MutualFirst Financial shall have received an opinion, dated the Closing Date, of Silver, Xxxxxxxx, Taff & Xxxxxxx LLP, to the effect that the Merger will constitute a reorganization under Section
368(a) of the Code. In rendering its opinion, such counsel may require and rely upon customary representations, contained in certificates of officers of Northwest Bancshares and MutualFirst Financial, reasonably satisfactory in form and substance
to such counsel.
9.3.6. Certificates. Northwest Bancshares will
furnish MutualFirst Financial with such certificates of its officers or others and such other documents to evidence fulfillment of the conditions set forth in this Section 9.3 as MutualFirst Financial may reasonably request.
Subject to the provisions of Articles IX and XI hereof, the Closing of the transactions contemplated
hereby shall take place by mail or electronic delivery, or, at the option of Northwest Bancshares, at the offices of Xxxx Xxxxxx, PC 0000 Xxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, X.X. at 10:00 a.m. on the Closing Date, or at such other place or time
upon which Northwest Bancshares and MutualFirst Financial mutually agree. A pre-closing of the transactions contemplated hereby (the “Pre-Closing”) shall take place by electronic delivery or at the offices of Xxxx Xxxxxx, PC, 0000 Xxxxxxxxx Xxxxxx,
Xxxxx 000, Xxxxxxxxxx, X.X. at 10:00 a.m. on the day prior to the Closing Date.
At the Pre-Closing there shall be delivered to Northwest Bancshares and MutualFirst Financial the
opinions, certificates, and other documents and instruments required to be delivered at the Closing under Article IX hereof. At or prior to the Closing, Northwest Bancshares shall deliver the Merger Consideration as set forth under Section 9.3.4
hereof.
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This Agreement may be terminated at any time prior to the Closing Date, whether before or after
approval of the Merger by the stockholders of MutualFirst Financial and Northwest Bancshares:
11.1.1. By the mutual written agreement of Northwest Bancshares and MutualFirst Financial;
11.1.2. By either party (provided, that the terminating party is not then in material breach of any representation, warranty, covenant or
other agreement contained herein) if there shall have been a material breach of any of the representations or warranties set forth in this Agreement on the part of the other party, which breach by its nature cannot be cured prior to the Termination
Date or shall not have been cured within 30 days after written notice of such breach by the terminating party to the other party; provided, however, that neither party shall have the right to terminate this Agreement pursuant to this Section 11.1.2
unless the breach of representation or warranty, together with all other such breaches, would entitle the terminating party not to consummate the transactions contemplated hereby under Section 9.2.1 (in the case of a breach of a representation or
warranty by MutualFirst Financial) or Section 9.3.1 (in the case of a breach of a representation or warranty by Northwest Bancshares);
11.1.3. By either party (provided, that the terminating party is not then in material breach of any representation, warranty, covenant or
other agreement contained herein) if there shall have been a material failure to perform or comply with any of the covenants or agreements set forth in this Agreement on the part of the other party, which failure by its nature cannot be cured prior
to the Termination Date or shall not have been cured within 30 days after written notice of such failure by the terminating party to the other party; provided, however, that neither party shall have the right to terminate this Agreement pursuant to
this Section 11.1.3 unless the breach of covenant or agreement, together with all other such breaches, would entitle the terminating party not to consummate the transactions contemplated hereby under Section 9.2.2 (in the case of a breach of
covenant by MutualFirst Financial) or Section 9.3.2 (in the case of a breach of covenant by Northwest Bancshares);
11.1.4. At the election of either party, if the Closing shall not have occurred by the Termination Date, or such later date as shall have been
agreed to in writing by Northwest Bancshares and MutualFirst Financial; provided, that no party may terminate this Agreement pursuant to this Section 11.1.4 if the failure of the Closing to have occurred on or before said date was due to such
party’s material breach of any representation, warranty, covenant or other agreement contained in this Agreement;
11.1.5. By either party, if the stockholders of MutualFirst Financial shall have voted at the MutualFirst Financial Stockholders Meeting (as
it may be adjourned and reconvened) and such vote shall not have been sufficient to approve the Merger or this Agreement; or if the stockholders of Northwest Bancshares shall have voted at the Northwest Bancshares Stockholders Meeting (as it may be
adjourned and reconvened) and such vote shall not have been sufficient to approve the issuance of the Northwest Bancshares Common Stock in connection with the Merger (but only to the extent such vote is required by Nasdaq rules);
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11.1.6. By either party if (i) final action has been taken by a Bank Regulator whose approval is required in connection with this Agreement
and the transactions contemplated hereby, which final action (x) has become unappealable and (y) does not approve this Agreement or the transactions contemplated hereby, (ii) any Bank Regulator whose approval or nonobjection is required in
connection with this Agreement and the transactions contemplated hereby has stated in writing that it will not issue the required approval or nonobjection, or (iii) any court of competent jurisdiction or other governmental authority shall have
issued an order, decree, ruling or taken any other action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action shall have become final and unappealable;
11.1.7. By the Board of Directors of either party (provided, that the terminating party is not then in material breach of any representation,
warranty, covenant or other agreement contained herein) in the event that any of the conditions precedent to the obligations of such party to consummate the Merger cannot be satisfied or fulfilled by the date specified in Section 11.1.4 of this
Agreement;
11.1.8. By Northwest Bancshares, if the MutualFirst Financial Board of Directors does not publicly recommend in the Proxy Statement-Prospectus
for the MutualFirst Financial Stockholders Meeting that the MutualFirst Financial Stockholders approve and adopt this Agreement or if, after making the MutualFirst Financial Recommendation in the Proxy Statement-Prospectus for the MutualFirst
Financial Stockholders Meeting, the MutualFirst Financial Board of Directors makes a MutualFirst Financial Subsequent Determination;
11.1.9. By Northwest Bancshares if MutualFirst Financial has received a Superior Proposal and the Board of Directors of MutualFirst Financial
has entered into an acquisition agreement with respect to the Superior Proposal, terminated this Agreement, withdrawn its recommendation of this Agreement, has failed to make such recommendation or has modified or qualified its recommendation in a
manner adverse to Northwest Bancshares;
11.1.10. By MutualFirst Financial, at any time prior to the adoption and approval of this Agreement by MutualFirst Financial’s stockholders, to
enter into an agreement with respect to a Superior Proposal, but only if (i) MutualFirst Financial’s Board of Directors has determined in good faith based on the advice of legal counsel that failure to take such action would, more likely than not,
cause the Board of Directors to violate its fiduciary duties under applicable law, and (ii) MutualFirst Financial has complied with and has not breached its obligations under Section 6.10; or
11.1.11. By MutualFirst Financial, at any time during the five-day period commencing with the Determination Date, if both of the following
conditions are satisfied:
(i) The number obtained by dividing the Average Closing Price by the Starting Price (as defined below) (the “Purchaser Ratio”) shall be less than
0.80; and
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(ii) (x) the Purchaser Ratio shall be less than (y) the number obtained by dividing the Final Index Price by the Index Price on the Starting Date
(each as defined below) and subtracting 0.20 from the quotient in this clause (ii) (y) (such number in this clause (ii) (y) being referred to herein as the “Index Ratio”);
subject, however, to the following three sentences. If MutualFirst Financial elects to exercise its termination right
pursuant to this Section 11.1.11, it shall give written notice to Northwest Bancshares (provided that such notice of election to terminate may be withdrawn at any time within the aforementioned five-day period). During the five-day period commencing
with its receipt of such notice, Northwest Bancshares shall have the option to increase the consideration to be received by the holders of MutualFirst Financial Common Stock hereunder, by adjusting the Exchange Ratio (calculated to the nearest one
one-thousandth) to equal the lesser of (x) a number (rounded to the nearest one one-thousandth) obtained by dividing (A) the product of the Starting Price, 0.80 and the Exchange Ratio (as then in effect) by (B) the Average Closing Price and (y) a
number (rounded to the nearest one one-thousandth) obtained by dividing (A) the product of the Index Ratio and the Exchange Ratio (as then in effect) by (B) the Purchaser Ratio; provided, however, that any such increase in the Exchange Ratio pursuant this Section 11.1.11 shall be paid to the holders of MutualFirst Financial Common Stock in cash, determined on a per share basis by multiplying
the increase in the Exchange Ratio by the Average Closing Price. If Northwest Bancshares so elects within such five-day period, it shall give prompt written notice to MutualFirst Financial of such election and the revised Exchange Ratio, whereupon no
termination shall have occurred pursuant to this Section 11.1.11 and this Agreement shall remain in effect in accordance with its terms (except as the Exchange Ratio shall have been so modified).
For purposes of this Section 11.1.11 the following terms shall have the meanings indicated:
“Average Closing Price” means the average closing price of Northwest Bancshares Common Stock as
reported on the Nasdaq for the twenty (20) consecutive trading days ending on the trading day immediately prior to the Determination Date.
“Determination Date” shall mean the 20th day prior to the Closing Date, provided that if shares of
Northwest Bancshares Common Stock are not actually traded on the Nasdaq on such day, the Determination Date shall be the immediately preceding day to the 20th day prior to the Closing Date on which shares of Northwest Bancshares Common Stock actually
trade on The Nasdaq Stock Market, LLC.
“Final Index Price” shall mean the average of the Index Prices for the 20 consecutive full trading
days ending on the Determination Date.
“Index Price” shall mean the closing price on such date of the NASDAQ Bank Index.
“Starting Date” shall mean the last trading day immediately preceding the date of the first public
announcement of entry into this Agreement.
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“Starting Price” shall mean the closing price of a share of Northwest Bancshares Common Stock on the
Nasdaq (as reported in The Wall Street Journal, or if not reported therein, in another authoritative source) on the Starting Date.
11.2.1. In the event of termination of this Agreement pursuant to any provision of Section 11.1, this Agreement shall forthwith become void
and have no further force, except that the provisions of Sections 11.2, 12.1, 12.2, 12.4, 12.5, 12.6, 12.9, 12.10, 12.12 and any other Section which, by its terms, relates to post-termination rights or obligations, shall survive such termination of
this Agreement and remain in full force and effect.
11.2.2. If this Agreement is terminated, expenses and damages of the parties hereto shall be determined as follows:
(A) Except as provided below or as otherwise specifically set forth in this Agreement, whether or not the Merger is
consummated, all costs and expenses incurred in connection with this Agreement and the transactions contemplated by this Agreement shall be paid by the party incurring such expenses.
(B) In the event of a termination of this Agreement because of a Willful Breach of any representation, warranty, covenant or
agreement contained in this Agreement, the breaching party shall remain liable for any and all damages, costs and expenses, including all reasonable attorneys’ fees, sustained or incurred by the non-breaching party as a result thereof or in
connection therewith or with respect to the enforcement of its rights hereunder. Moreover, no party shall be relieved of liability for fraud.
(C) As a condition of Northwest Bancshares’ willingness, and in order to induce Northwest Bancshares to enter into this
Agreement, and to reimburse Northwest Bancshares for incurring the costs and expenses related to entering into this Agreement and consummating the transactions contemplated by this Agreement, MutualFirst Financial hereby agrees to pay Northwest
Bancshares, and Northwest Bancshares shall be entitled to payment of, a fee of $11.0 million (the “Northwest Bancshares Fee”), within three business days after written demand for payment is made by Northwest Bancshares, following the occurrence of
any of the events set forth below:
(i) MutualFirst Financial terminates this Agreement pursuant to Sections 11.1.10 or Northwest Bancshares terminates this
Agreement pursuant to Sections 11.1.8 or 11.1.9; or
(ii) The entering into a definitive agreement by MutualFirst Financial relating to an Acquisition Proposal or the consummation
of an Acquisition Proposal involving MutualFirst Financial within twelve (12) months after the occurrence of any of the following: (i) the termination of the Agreement by Northwest Bancshares pursuant to Section 11.1.2 or 11.1.3 because of a
Willful Breach (as defined below) by MutualFirst Financial or any MutualFirst Financial Subsidiary; or (ii) the failure of the stockholders of MutualFirst Financial to approve this Agreement after the occurrence of an Acquisition Proposal.
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(D) The right to receive payment of the Northwest Bancshares Fee under Section 11.2.2(C) will constitute the sole and exclusive
remedy of Northwest Bancshares against MutualFirst Financial and its Subsidiaries and their respective officers and directors with respect to a termination listed under Section 11.2.2(C)(i) or (ii).
(E) Northwest Bancshares shall be reimbursed by MutualFirst Financial for all fees, costs and other expenses incurred by
Northwest Bancshares in connection with enforcing its right to the Northwest Bancshares Fee.
“Willful Breach” shall mean a material breach that is a consequence of an act undertaken by a party with the knowledge
that the taking of the act would, or under circumstances in which the party should reasonably have known would, be expected to cause a breach of this Agreement.
Subject to applicable law, at any time prior to the Effective Time (whether before or after approval
thereof by the stockholders of MutualFirst Financial or Northwest Bancshares), the parties hereto by action of their respective Boards of Directors, may (a) amend this Agreement, (b) extend the time for the performance of any of the obligations or
other acts of any other party hereto, (c) waive any inaccuracies in the representations and warranties contained herein or in any document delivered pursuant hereto, or (d) waive compliance with any of the agreements or conditions contained herein;
provided, however, that after any approval of this Agreement and the transactions contemplated hereby by the stockholders of MutualFirst Financial and Northwest Bancshares, respectively, there may not be, without further approval of such
stockholders, any amendment of this Agreement which reduces the amount or value, or changes the form of, the Merger Consideration to be delivered to MutualFirst Financial’s stockholders pursuant to this Agreement. This Agreement may not be amended
except by an instrument in writing signed on behalf of each of the parties hereto. Any agreement on the part of a party hereto to any extension or waiver shall be valid only if set forth in an instrument in writing signed on behalf of such party, but
such waiver or failure to insist on strict compliance with such obligation, covenant, agreement or condition shall not operate as a waiver of, or estoppel with respect to, any subsequent or other failure. Any termination of this Agreement pursuant
to Article XI may only be effected upon a vote of a majority of the entire Board of Directors of the terminating party.
Except as specifically set forth herein, Northwest Bancshares and MutualFirst Financial mutually
agree to be bound by the terms of the Confidentiality Agreement previously executed by the parties hereto, which Confidentiality Agreement is incorporated herein by reference. The parties hereto agree that such Confidentiality Agreement shall
continue in accordance with its terms, notwithstanding the termination of this Agreement.
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MutualFirst Financial and Northwest Bancshares shall cooperate with each other in the development and
distribution of all news releases and other public disclosures with respect to this Agreement, and except as may otherwise be required by law, neither MutualFirst Financial nor Northwest Bancshares nor Northwest Bank shall issue any news release, or
other public announcement or communication with respect to this Agreement unless such news release or other public announcement or communication has been mutually agreed upon by the parties hereto.
All representations, warranties and covenants in this Agreement or in any instrument delivered
pursuant hereto shall expire and be terminated and extinguished at the Effective Time, except for those covenants and agreements contained herein which by their terms apply in whole or in part after the Effective Time, including but not limited to
Sections 2.8, 3.3.2 through 3.3.8, 6.2.2, 7.6, 7.7, 7.8, 11.2, 12.1 and 12.11.
All notices and other communications hereunder shall be in writing and shall be deemed duly given (a)
on the date of delivery if delivered personally, or if by facsimile or electronic mail (e-mail), upon written confirmation of receipt by facsimile or e-mail, (b) on the first business day following the date of dispatch if delivered utilizing a
next-day service by a recognized next-day courier, with confirmation of receipt, or (c) on the earlier of confirmed receipt or the fifth Business Day following the date of mailing if delivered by registered or certified mail, return receipt
requested, postage prepaid.
All notices hereunder shall be delivered to the addresses set forth below, or pursuant to such other
instructions as may be designated in writing by the party to receive such notice:
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If to MutualFirst Financial, to:
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Xxxxx X. Xxxxxx
Chief Executive Officer
MutualFirst Financial, Inc.
000 X. Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxx 00000
Email:
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With required copies to:
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Xxxxx X. Xxxxxxxxx, Esq.
Silver, Xxxxxxxx, Taff & Xxxxxxx LLP
0000 X Xxxxxx X.X.
Xxxxxxxxxx, X.X. 00000
Fax: (000) 000-0000
Email: xxx@xxxxxxx.xxx
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If to Northwest Bancshares, to:
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Xxxxxx X. Xxxxxxxx
President and Chief Executive Officer
Northwest Bancshares, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxx 00000
Email: Xxx.Xxxxxxxx@xxxxxxxxx.xxx
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With required copies to:
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Xxxx X. Xxxx, Esq.
Xxxx Xxxxxx, PC
0000 Xxxxxxxxx Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Fax: (000) 000-0000
Email: xxxxx@xxxxxxx.xxx
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or such other address as shall be furnished in writing by any party.
This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their
respective successors and assigns; provided, however, that neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any party hereto without the prior written consent of the other party. Except for the
provisions of Article III, this Section 12.5 and as otherwise specifically provided in Section 7.7, which is intended to be for the benefit of, and shall be enforceable by, each Indemnified Party, and his or her heirs and representatives, this
Agreement, including the documents and instruments referred to in this Agreement, is not intended and does not to confer upon any Person, other than the parties to this Agreement, any rights or remedies under this Agreement.
This Agreement, including the Exhibits and Disclosure Schedules hereto and the documents and other
writings referred to herein or therein or delivered pursuant hereto, and the Confidentiality Agreement, contains the entire agreement and understanding of the parties with respect to its subject matter. There are no restrictions, agreements,
promises, warranties, covenants or undertakings between the parties other than those expressly set forth herein or therein. This Agreement supersedes all prior agreements and understandings (other than the Confidentiality Agreement) between the
parties, both written and oral, with respect to its subject matter.
This Agreement may be executed in one or more counterparts all of which shall be considered one and
the same agreement and each of which shall be deemed an original. A facsimile copy or electronic transmission of a signature page shall be deemed to be an original signature page.
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In the event that any one or more provisions of this Agreement shall for any reason be held invalid,
illegal or unenforceable in any respect, by any court of competent jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provisions of this Agreement and the parties shall use their reasonable efforts to substitute
a valid, legal and enforceable provision which, insofar as practical, implements the purposes and intents of this Agreement.
This Agreement shall be governed by the laws of the State of Maryland, without giving effect to its
principles of conflicts of laws.
When a reference is made in this Agreement to Sections or Exhibits, such reference shall be to a
Section of or Exhibit to this Agreement unless otherwise indicated. The recitals hereto constitute an integral part of this Agreement. References to Sections include subsections, which are part of the related Section (e.g., a section numbered
“Section 5.5.1” would be part of “Section 5.5” and references to “Section 5.5” would also refer to material contained in the subsection described as “Section 5.5.1”). The table of contents, index and headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without
limitation”. The phrases “the date of this Agreement”, “the date hereof” and terms of similar import, unless the context otherwise requires, shall be deemed to refer to the date set forth in the Recitals to this Agreement. The parties have
participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties and no presumption or burden of
proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.
The parties hereto agree that irreparable damage would occur in the event that the provisions
contained in this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties shall be entitled to seek an injunction or injunctions to prevent breaches of this Agreement
and to seek to enforce specifically the terms and provisions thereof in the State of Maryland, this being in addition to any other remedy to which they are entitled at law or in equity. Each party agrees that it will not seek and will agree to waive
any requirement for the securing or posting of a bond in connection with the other party’s seeking or obtaining such injunctive relief. In addition, each of the parties hereto (a) consents to submit itself to the personal jurisdiction of any federal
or state court located in the State of Maryland in the event any dispute arises out of this Agreement or the transactions contemplated by this Agreement, (b) agrees that it will not attempt to deny or defeat such personal jurisdiction by motion or
other request for leave from any such court, and (c) agrees that it will not bring any action relating to this Agreement or the transactions contemplated by this Agreement in any court other than a federal or state court located in the State of
Maryland.
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EACH OF THE PARTIES HERETO WAIVES ANY RIGHT IT MAY HAVE TO TRIAL BY JURY IN RESPECT OF ANY LITIGATION
BASED ON, ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR ANY COURSE OF CONDUCT, COURSE OF DEALING, VERBAL OR WRITTEN STATEMENT OR ACTION OF ANY PARTY HERETO.
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IN WITNESS WHEREOF, Northwest Bancshares and MutualFirst Financial have caused this Agreement to be
executed by their duly authorized officers as of the date first set forth above.
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Northwest Bancshares, Inc.
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By: /s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
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President and Chief Executive Officer
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MutualFirst Financial, Inc.
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By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
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Chief Executive Officer
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