<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
(Rule 13d-101)
Under the Securities Exchange Act of 1934
(Amendment No. )*
F&M BANCORPORATION, INC.
----------------------------
(Name of Issuer)
Common Stock
------------------------------
(Title of Class of Securities)
302731-10-9
---------------
(CUSIP Number)
Thomas W. Gallagher
Citizens Banking Corporation
328 S. Saginaw Street
Flint, Michigan 48502
(810) 766-7500
---------------------------------------------
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
April 18, 1999
-------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(e, 13d-1(f) or 13d-1(g), check the following
box [ ].
<PAGE> 2
SCHEDULE 13D
CUSIP NO. 124795105
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Citizens Banking Corporation
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [ ]
Not Required
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Michigan
7 SOLE VOTING POWER
NUMBER OF 3,097,908(1)
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY -0-
EACH
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON 3,097,908(1)
WITH
10SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,097,908(l)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
19.9%
14 TYPE OF REPORTING PERSON*
CO
- ---------------
(1)The Reporting Person disclaims ownership of 3,097,908 shares
pursuant to Rule 13d-4 under the Securities Exchange Act of 1934, as amended.
See Item 5 of this Schedule.
Page 2
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Continuation of Schedule 13D
Item 1. Security and Issuer.
This statement relates to shares of common stock, $1.00 par value
per share (the "Common Stock") of F&M Bancorporation, Inc., a Wisconsin
corporation ("F&M"). The name and address of the principal executive office of
F&M is One Bank Avenue, Kaukauna, Wisconsin 54130.
Item 2. Identity and Background.
1. This statement is filed on behalf of Citizens Banking
Corporation, a Michigan corporation ("Citizens"). The principal business of
Citizens is the ownership of all of the outstanding voting stock of its banking
subsidiaries, Citizens Bank and Citizens Bank-Illinois N.A., and the address of
its principal office is Citizens Banking Corporation, 328 S. Saginaw Street,
Flint, Michigan 48502.
2. During the last five years Citizens has not been convicted in a
criminal proceeding (excluding traffic violations or similar misdemeanors) nor
been a party to a civil proceeding of a judicial or administrative body of
competent jurisdiction as a result of which a judgment, decree or final order
enjoining future violations of, or prohibiting or mandating activities subject
to, federal or state securities laws was issued nor in which there was a finding
of any violation with respect to such laws.
3. Background information for each of the executive officers and
directors of Citizens is set forth below, including his or her (a) name, (b)
business address, and (c) present principal occupation and the name and address
(see (b)) of any corporation or other organization in which such employment is
conducted. With respect to Items (d) and (e) for each of the individuals named,
during the last five years none of the individuals has been convicted in a
criminal proceeding (excluding traffic violations or similar misdemeanors); nor
has any of the individuals, during the last five years, been a party to a civil
proceeding of a judicial or administrative body of competent jurisdiction as a
result of which he or she was or is subject to any judgment, decree or final
order enjoining future violations of, or prohibiting or mandating activities
subject to, federal or state securities laws or finding any violation with
respect to such laws. Each of the individuals named is a citizen of the United
States and unless otherwise indicated, has his or her business address at
Citizens Banking Corporation, 328 S. Saginaw Street, Flint, Michigan 48502.
(i) Executive Officers and Directors as of April 18, 1999:
1. (a) Richard T. Albee
(b) See Page 3
(c) Principal Occupation:
Senior Vice President of Citizens Bank
Page 3
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Continuation of Schedule 13D
2. (a) Daniel E. Bekemeier
(b) See Page 3
(c) Principal Occupation:
Senior Vice President and Controller of
Citizens Bank
3. (a) Nicholas J. Cilfone
(b) See Page 3
(c) Principal Occupation:
Senior Vice President of Citizens Banking
Corporation, and Executive Vice President
of Citizens Bank
4. (a) Gary P. Drainville
(b) See Page 3
(c) Principal Occupation:
Executive Vice President of Citizens
Banking Corporation and Executive Vice
President of Citizens Bank
5. (a) John W. Ennest
(b) See Page 3
(c) Principal Occupation:
Vice Chairman of the Board, Chief
Financial Officer and Treasurer of
Citizens Banking Corporation, Vice
Chairman of the Board and Chief Financial
Officer of Citizens Bank and Chairman
of Citizens Bank-Illinois, N.A.
6. (a) Thomas W. Gallagher
(b) See Page 3
(c) Principal Occupation:
Senior Vice President, Secretary and
General Counsel of Citizens Banking
Corporation and Senior Vice President,
General Counsel, Secretary and Cashier of
Citizens Bank
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Continuation of Schedule 13D
7. (a) Wayne G. Schaeffer
(b) See Page 3
(c) Principal Occupation:
Executive Vice President of Citizens
Banking Corporation, and with respect to
Citizens Bank, President-Flint
8. (a) Thomas C. Shafer
(b) See Page 3
(c) Principal Occupation:
Executive Vice President of Citizens Bank
9. (a) James M. VanTiflin
(b) See Page 3
(c) Principal Occupation:
Citizens Bank, President-Saginaw
10. (a) Robert J. Vitito
(b) See Page 3
(c) Principal Occupation:
President, Chief Executive Officer and
Director of Citizens Banking Corporation
and Chairman, President and Chief
Executive Officer of Citizens Bank
11. (a) Jack S. Werner
(b) See Page 3
(c) Principal Occupation:
Citizens Bank, President-Bay City/Midland
12. (a) Edward P. Abbott
(b) P.O. Box 4040, Flint, Michigan 48504
(c) Principal Occupation:
President and Chief Executive Officer,
Abbott's Meat, Inc.; Director of Citizens
Banking Corporation
13. (a) Hugo E. Braun Jr.
(b) 101 North Washington, Suite 812, Saginaw,
Michigan 48607
(c) Principal Occupation:
Attorney and Partner, Braun Kendrick
Finkbeiner; Director of Wolohan Lumber;
Director of Citizens Banking Corporation
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Continuation of Schedule 13D
14. (a) Jonathan E. Burroughs II
(b) 908 Citizens Bank Building-South, Flint,
Michigan 48502
(c) Principal Occupation:
President, JEB Enterprises; Director of
Citizens Banking Corporation
15. (a) Joseph P. Day
(b) P.O. Box 1372, 1840 North Michigan Avenue,
Saginaw, Michigan 48083
(c) Principal Occupation:
President, Banner Engineering Sales, Inc.;
Director of Citizens Banking Corporation
16. (a) Lawrence O. Erickson
(b) 239 Indusco Court,
Troy, Michigan 48083
(c) Principal Occupation:
Chief Executive Officer, Fourway Tool &
Die, Inc.; Director of Citizens Banking
Corporation
17. (a) Victor E. George
(b) G-5050 South Saginaw, Flint, Michigan
48507
(c) Principal Occupation:
Chairman of the Board, Victor George
Oldsmobile, Inc.; Director of Citizens
Banking Corporation
18. (a) Ada C. Washington
(b) 1505 Arrow Lane, Flint, Michigan 48507
(c) Principal Occupation:
Community Volunteer; Director of Citizens
Banking Corporation
19. (a) James L. Wolohan
(b) 1740 Midland Road, Saginaw, Michigan 48603
(c) Principal Occupation:
Chairman, President and Chief Executive
Officer, Wolohan Lumber Company; Director
of Jackson Stores, Inc.; Director of
Citizens Banking Corporation
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Continuation of Schedule 13D
20. (a) Stephen J. Lazaroff
(b) 6999 Spring Arbor Road, Spring Arbor,
Michigan 49283
(c) Principal Occupation:
President, Diversified Precision
Products, Inc.; Director of Citizens
Banking Corporation
21. (a) William J. Hank
(b) 315 Quail Ridge Drive, Westmont, Illinois
60559
(c) Principal Occupation:
Chairman and Chief Executive Officer
Farnham Investments Group; Director of
Citizens Banking Corporation
22. (a) William F. Nelson, Jr.
(b) 111 Hoyt Street, Saginaw, Michigan 48607
(c) Principal Occupation:
President, Director and Owner of William
F. Nelson Electric, Inc.; Director of
Citizens Banking Corporation
23. (a) William C. Shedd
(b) 501 Citizens Bank Building, Flint,
Michigan 48502
(c) Principal Occupation:
Attorney and Partner, Winegarden, Shedd,
Haley, Lindholm & Robertson; Director of
Citizens Banking Corporation
24. (a) James E. Truesdell Jr.
(b) 2300 Austins Parkway #100, Flint, Michigan
48507
(c) Principal Occupation:
President-Secretary, J. Austin Oil Company
of Flint, Inc.; Director of Citizens
Banking Corporation
25. (a) Charles R. Weeks
(b) 7550 South Saginaw Street, Grand Blanc,
Michigan 48439
(c) Principal Occupation:
Chairman of the Board of Citizens Banking
Corporation
26. (a) Kendall B. Williams
(b) 10775 South Saginaw Street, Grand Blanc,
Michigan 48439
(c) Principal Occupation:
Attorney and Counselor, The Williams
Firm, P.C.; Director of
Citizens Banking Corporation
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Continuation of Schedule 13D
Item 3. Source and Amount of Funds or Other Consideration.
Citizens is hereby reporting its beneficial ownership of Common
Stock which may be acquired upon exercise of an option granted to Citizens to
purchase an aggregate amount (subject to adjustments) of up to 3,097,908
authorized but unissued shares of Common Stock of F&M at a purchase price
(subject to adjustments) of $35.55 per share (the "Option"). The Option may be
exercised only upon the occurrence of certain "Purchase Events" specified in the
Stock Option Agreement dated April 18, 1999 between F&M and Citizens (the
"Option Agreement") and the receipt of requisite regulatory approvals. The
"Purchase Events" are set forth in Section 2 of the Option Agreement attached
hereto as Exhibit 1, which is incorporated herein by reference. In the event the
Option becomes exercisable and is so exercised by Citizens, payment of the
exercise price will be made from available cash on hand or by borrowing from
other banks whose identities are not yet known.
Item 4. Purpose of Transaction.
Citizens has acquired the Option in connection with the execution
of an Agreement and Plan of Merger by and between Citizens and F&M, dated April
18, 1999 (the "Merger Agreement"), providing for, among other things, the merger
(the "Merger") of F&M with and into Citizens with Citizens being the surviving
corporation. In connection with the Merger, the shares of outstanding Common
Stock of F&M would be converted into the right to receive 1.303 shares of
Citizens Common Stock and will be eligible for termination of registration
pursuant to Section 12(g)(4) of the Securities Exchange Act of 1934, as amended.
Additional changes with respect to F&M will occur, reflecting the transactions
contemplated by the Merger Agreement, if the transactions contemplated by the
Merger Agreement are consummated. The Option Agreement and the Merger Agreement
may impede the acquisition of control of F&M by another person. The Merger
Agreement is attached hereto as Exhibit 2 and is incorporated herein by
reference.
F&M granted the Option to Citizens in order to facilitate the
Merger pursuant to the Merger Agreement. Consummation of the Merger is subject
to approval of the Merger Agreement and the Merger by the shareholders of F&M
and Citizens and certain regulatory authorities and the satisfactory completion
by Citizens of a review of F&M's loan portfolio.
Except as set forth herein, Citizens does not have any other
current plans or proposals of the type described in the instructions to Item 4
of Schedule 13D.
Item 5. Interest in Securities of the Issuer.
(a) Citizens currently does not own shares of Common Stock.
Pursuant to the Option Agreement, Citizens has the right to acquire up to 19.9%
(3,097,908 shares) of the outstanding
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Continuation of Schedule 13D
shares of Common Stock upon the occurrence of a "Purchase Event." The Option
will terminate upon the earliest to occur of certain events which are set forth
in the Option Agreement and which are summarized as follows: (a) immediately
prior to the Effective Time as contemplated by the Merger Agreement, (b) 12
months after the first occurrence of a Purchase Event, (c) 18 months after the
termination of the Merger Agreement following the occurrence of certain
Preliminary Purchase Events (as defined in the Option Agreement), (d)
termination of the Merger Agreement in accordance with the terms thereof prior
to the occurrence of a Purchase Event or a Preliminary Purchase Event (other
than a termination of the Merger Agreement by Citizens pursuant to Section
7.1(c)(i) thereof) or (e) 12 months after the termination of the Merger
Agreement by Citizens pursuant to Section 7.1(c)(i) thereof.
Although Citizens is not permitted to purchase any Common Stock
pursuant to the Option unless one of the specified "Purchase Events" occurs,
assuming for purposes of this Item 5 that the Option were currently exercisable,
Citizens would own up to 3,097,908 shares of Common Stock, or approximately
19.9% of the total number of shares of Common Stock outstanding as of April 18,
1999. Citizens disclaims beneficial ownership of 3,097,908 of the shares which
it has the right to acquire pursuant to the Option. None of the individuals
named in response to Item 2 are beneficial owners of any of the shares reported
hereby.
(b) Citizens currently has the sole power to vote, direct the
vote, dispose and direct the disposition of no shares of Common Stock. Under the
Option Agreement, Citizens currently does not have the right to acquire any
shares of Common Stock until a "Purchase Event" occurs. Accordingly, Citizens
has no power to vote, direct the vote, dispose or direct the disposition of the
shares of Common Stock covered by the Option and therefore disclaims beneficial
ownership of the Common Stock subject to the Option until a "Purchase Event"
occurs. Upon acquisition of the shares subject to the Option, Citizens will have
the sole power to vote, direct the vote, dispose and direct the disposition of
up to 3,097,908 shares, as referenced in Item 5(a) (subject to adjustment in the
event of a stock dividend, stock split, recapitalization, exchange, issuance or
similar transaction involving Common Stock).
(c) To the best knowledge of Citizens, no transactions have been
effected in the Common Stock during the past sixty days by the person named in
response to Item 5(a).
(d) Not applicable.
(e) Not applicable.
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Continuation of Schedule 13D
Item 6. Contracts, Arrangements, Understandings or Relationships with
Respect to Securities of the Issuer.
As described in Items 3 and 4, Citizens and F&M have entered into
the Option Agreement and the Merger Agreement. The Option Agreement is attached
as Exhibit 1 and is incorporated herein by reference. The Merger Agreement is
attached as Exhibit 2 and is incorporated herein by reference.
Item 7. Material to be Filed as Exhibits.
<TABLE>
<CAPTION>
Ex. No. Description
------- -----------
<S> <C>
1 Option Agreement, dated as of April 18,
1999, by and between Citizens Banking
Corporation and F&M Bancorporation, Inc.
2 Agreement and Plan of Merger, dated as of
April 18, 1999, by and between Citizens
Banking Corporation and F&M Bancorporation,
Inc.
</TABLE>
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Continuation of Schedule 13D
SIGNATURE
After reasonable inquiry and to the best of his knowledge and belief,
the undersigned certifies that the information set forth in this statement with
respect to it is true, complete and correct.
CITIZENS BANKING CORPORATION
Date: April 27, 1999 By: /s/ Thomas W. Gallagher
--------------------------------
Thomas W. Gallagher
Senior Vice President,
General Counsel and Secretary
Page 11
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Continuation of Schedule 13D
EXHIBIT INDEX
<TABLE>
<CAPTION>
Ex. No. Description
- ------- -----------
<S> <C>
1 Option Agreement, dated as of April 18, 1999, by and between Citizens Banking
Corporation and F&M Bancorporation, Inc.
2 Agreement and Plan of Merger, dated as of April 18, 1999, by and between Citizens
Banking Corporation and F&M Bancorporation, Inc.
</TABLE>
Page 12
<PAGE> 1
EXHIBIT 1
STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT, dated as of the 18th day of April, 1999 (this
"Agreement"), between Citizens Banking Corporation ("Grantee") and F & M
Bancorporation, Inc. ("Issuer").
RECITALS:
A. Grantee and Issuer are parties to an Agreement and Plan of Merger,
dated as of the 18th day of April, 1999 (the "Plan").
B. As a condition and inducement to Grantee's not terminating the Plan
and in consideration therefor, Issuer is granting Grantee the Option (as defined
below).
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements set forth herein and in the Plan, the parties hereto
agree as follows:
SECTION 1. Grant of Option. Issuer hereby grants to Grantee an
unconditional, irrevocable option (the "Option") to purchase, subject to the
terms of this Agreement, up to 3,097,908 fully paid and nonassessable (except as
provided in Section 180.0622(2)(b), of the Wisconsin Business Corporation Law,
as judicially interpreted) shares of common stock, par value $1.00 per share
("Common Stock"), of Issuer at a price per share equal to $35.55 (the "Option
Price"); provided, however, that in no event shall the number of shares of
Common Stock for which this Option is exercisable exceed 19.9% of the Issuer's
issued and outstanding shares of Common Stock without giving effect to any
shares subject to or issued pursuant to the Option. The number of shares of
Common Stock that may be received upon the exercise of the Option and the Option
Price are subject to adjustment as set forth below.
SECTION 2. Exercise of Option.
(a) Grantee may exercise the Option, in whole or part, at any time and
from time to time following the occurrence of a Purchase Event (as defined
below); provided that the Option shall terminate and be of no further force and
effect upon the earliest to occur of (i) the time immediately prior to the
Effective Time (as defined in the Plan), (ii) 12 months after the first
occurrence of a Purchase Event, (iii) 18 months after the termination of the
Plan following the occurrence of a Preliminary Purchase Event (as defined
below), (iv) termination of the Plan in accordance with its terms prior to the
occurrence of a Purchase Event or a Preliminary Purchase Event, other than a
termination of the Plan by Parent pursuant to Section 7.1(c)(i) of the Plan
(unless the breach by Issuer giving rise to such right of termination is
non-volitional) or (v) 12 months after the termination of the Plan by Parent
pursuant to Section 7.1(c)(i) of the Plan (unless the breach by
<PAGE> 2
Issuer giving rise to such right of termination is non-volitional). The events
described in clauses (i)-(v) in the preceding sentence are collectively referred
to as an "Exercise Termination Event."
(b) The term "Preliminary Purchase Event" shall mean any of the
following events or transactions occurring after the date of this Agreement:
(i) Issuer or any of its subsidiaries (each an "Issuer
Subsidiary") without having received Grantee's prior
written consent, shall have entered into an agreement to
engage in an Acquisition Transaction (as defined below)
with any person other than Grantee or any of its
subsidiaries (each a "Grantee Subsidiary") or the Board of
Directors of Issuer shall have recommended that the
shareholders of Issuer approve or accept any Acquisition
Transaction with any person other than Grantee or any
Grantee Subsidiary. For purposes of this Agreement,
"Acquisition Transaction" shall mean (w) a merger or
consolidation, or any similar transaction, involving
Issuer or any of Issuer's subsidiaries, which either
individually or in the aggregate would constitute a
"Significant Subsidiary" (as defined in Rule 1-02 of
Regulation S-X promulgated by the Securities and Exchange
Commission) ("Material Subsidiaries") or involving any of
Issuer's other bank subsidiaries, if such transaction
involves more than two such subsidiaries, (x) a purchase,
lease or other acquisition of all or substantially all of
the assets of Issuer or any Material Subsidiary (y) a
purchase or other acquisition (including by way of merger,
consolidation, share exchange or otherwise) of securities
representing 10% or more of the voting power of Issuer or
a Material Subsidiary or (z) any substantially similar
transaction. The term "Acquisition Transaction" does not
include any internal merger or consolidation involving
only Issuer and/or Issuer Subsidiaries, provided that any
such transaction is not entered into in violation of the
terms of the Plan. The term "person," for purposes of this
Agreement, shall have assigned to such term in Sections
3(a)(9) and 13(d)(3) of the Securities Exchange Act of
1934, as amended (the "Securities Exchange Act"), and the
rules and regulations thereunder.
(ii) Issuer or any Issuer Subsidiary, without having received
Grantee's prior written consent, shall have authorized,
recommended, proposed or publicly announced its intention
to authorize, recommend or propose, to engage in an
Acquisition Transaction with any person other than Grantee
or a Grantee Subsidiary, or the Board of Directors of
Issuer shall have publicly withdrawn or modified, or
publicly announced its interest to withdraw or modify, in
any manner adverse to Grantee, its recommendation that the
stockholders of Issuer approve the transactions
contemplated by the Plan in anticipation of engaging in an
Acquisition Transaction.
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(iii) Any person (other than Grantee, any Grantee Subsidiary or
any subsidiary of Issuer acting in a fiduciary capacity in
the ordinary course of its business) shall have acquired
beneficial ownership or the right to acquire beneficial
ownership of 10% or more of the outstanding shares of
Common Stock. The term "beneficial ownership" for purposes
of this Agreement shall have the meaning assigned to such
term in Section 13(d) of the Securities Exchange Act, and
the rules and regulations thereunder.
(iv) Any person other than Grantee or any Grantee Subsidiary
shall have made a bona fide proposal to Issuer or its
stockholders, by public announcement or written
communication that is or becomes the subject of public
disclosure, to engage in an Acquisition Transaction
(including, without limitation, any situation in which any
person other than Grantee or any Grantee Subsidiary shall
have commenced (as such term is defined in Rule 14d-2
under the Exchange Act) or shall have filed a registration
statement under the Securities Act of 1933, as amended
(the "Securities Act"), with respect to, a tender offer or
exchange offer to purchase any shares of Issuer Common
Stock such that, upon consummation of such offer, such
person would own or control 10% or more of the then
outstanding shares of Issuer Common Stock.) The offer
referred to in the preceding sentence shall be referred to
in this Agreement as a "Tender Offer" or an "Exchange
Offer."
(v) After a proposal is made by a third party to Issuer or its
shareholders to engage in an Acquisition Transaction,
Issuer shall have breached any covenant or obligation
contained in the Plan and such breach would entitle
Grantee to terminate the Plan and shall not have been
cured prior to the Notice Date (as defined below).
(vi) Any person other than Grantee or any Grantee Subsidiary,
other than in connection with a transaction to which
Grantee has given its prior written consent, shall have
filed an application or notice with the Board of Governors
of the Federal Reserve System (the "Federal Reserve
Board") or other governmental authority or regulatory or
administrative agency or commission (each, a "Governmental
Authority") for approval to engage in an Acquisition
Transaction.
(c) The term "Purchase Event" shall mean either of the following
events or transactions occurring after the date of this Agreement:
(i) The acquisition by any person other than Grantee or any
Grantee Subsidiary of beneficial ownership of 20% or more
of the then outstanding Common Stock; or
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<PAGE> 4
(ii) The occurrence of a Preliminary Purchase Event described
in Section 2(b)(i) except that the percentage referred to
in clause (y) shall be 20%.
(d) Issuer shall notify Grantee promptly in writing of the occurrence
of any Preliminary Purchase Event or Purchase Event; provided, however, that the
giving of such notice by Issuer shall not be a condition to the right of Grantee
to exercise the Option.
(e) In the event that Grantee is entitled to and wishes to exercise
the option, it shall send to Issuer a written notice (the "Option Notice"). The
date of the Option Notice shall be referred to as the "Notice Date." Such Option
Notice shall specify: (i) the total number of shares of Common Stock Grantee
will purchase pursuant to such exercise and (ii) a date not less than three
business days nor more than thirty business days from the Notice Date (the
"Closing Date") and a place at which the closing of such purchase shall take
place; provided, that, if prior notification to or approval of the Federal
Reserve Board or any other Governmental Authority is required in connection with
such purchase (each, a "Notification" or an "Approval," as the case may be), (A)
Grantee shall promptly file, or cause to be filed, the required notice or
application for approval ("Notice/Application"), (B) Grantee shall expeditiously
process, or cause to be expeditiously processed, the Notice/Application and (C)
for the purpose of determining the Closing Date, the period of time that
otherwise would run from the Notice Date shall instead run from the later of (x)
in connection with any Notification, the date on which any required notification
periods have expired or been terminated and (y) in connection with any Approval,
the date on which such approval has been obtained and any requisite waiting
period or periods shall have expired. For purposes of Section 2(a), any exercise
of the Option shall be deemed to occur on the Notice Date relating thereto. On
or prior to the Closing Date, Grantee shall have the right to revoke its
exercise of the Option in the event that the transaction constituting a Purchase
Event that gives rise to such right to exercise shall not have been consummated.
(f) At the closing referred to in Section 2(e), Grantee shall pay to
Issuer the aggregate purchase price for the shares of Common Stock specified in
the Option Notice in immediately available funds by wire transfer to a bank
account designated by Issuer; provided, however, that failure or refusal of
Issuer to designate such a bank account shall not preclude Grantee from
exercising the option.
(g) At such closing, simultaneously with the delivery of immediately
available funds as provided in Section 2(f), Issuer shall deliver to Grantee a
certificate or certificates representing the number of shares of Common Stock
specified in the Option Notice and, if the Option should be exercised in part
only, a new Option evidencing the rights of Grantee thereof to purchase the
balance of the shares of Common Stock purchasable hereunder and Grantee shall
deliver to Issuer a letter agreeing that Grantee will not offer to sell or
otherwise dispose of such shares in violation of applicable securities laws.
(h) Certificates for Common Stock delivered at a closing hereunder
shall be endorsed with a restrictive legend substantially as follows:
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<PAGE> 5
The transfer of the shares represented by this certificate is
subject to resale restrictions arising under the Securities Act
of 1933, as amended, and to certain provisions of an agreement
between Citizens Banking Corporation ("Grantee") and F & M
Bancorporation, Inc. ("Issuer") dated as of the 18th day of
April, 1999. A copy of such agreement is on file at the principal
office of Issuer and will be provided to the holder hereof
without charge upon receipt by Issuer of a written request
therefor.
It is understood and agreed that: (i) the reference to the resale restrictions
of the Securities Act in the above legend shall be removed by delivery of
substitute certificate(s) without such reference if Grantee shall have delivered
to Issuer a copy of a letter from the staff of the Securities and Exchange
Commission (the "SEC"), or an opinion of counsel, in form and substance
satisfactory to Issuer, to the effect that such legend is not required for
purposes of the Securities Act; (ii) the reference to the provisions of this
Agreement in the above legend shall be removed by delivery of substitute
certificates without such reference, if the shares have been sold or transferred
in compliance with the provisions of this Agreement and under circumstances that
do not require the retention of such reference; and (iii) the legend shall be
removed in its entirety if the conditions in the preceding clauses (i) and (ii)
are both satisfied. In addition, such certificates shall bear any other legend
as may be required by law.
(i) Upon the giving by Grantee to Issuer of an Option Notice and the
tender of the applicable purchase price in immediately available funds on the
Closing Date, Grantee shall be deemed to be the holder of record of the number
of shares of Common Stock specified in the Option Notice, notwithstanding that
the stock transfer books of Issuer shall then be closed or that certificates
representing such shares of Common Stock shall not then actually be delivered to
Grantee. Issuer shall pay all expenses and any and all United States federal,
state, foreign and local taxes and other charges that may be payable in
connection with the preparation, issue and delivery of stock certificates under
this Section 2 in the name of Grantee, or its assignee, transferee or designee.
SECTION 3. Agreements of Issuer. Issuer agrees: (i) that it shall
at all times until the termination of this Agreement have reserved for issuance
upon the exercise of the option that number of authorized and reserved shares of
Common Stock equal to the maximum number of shares of Common Stock at any time
and from time to time issuable hereunder, all of which shares will, upon
issuance pursuant hereto, be duly authorized, validly issued, fully paid,
nonassessable, and delivered free and clear of all claims, liens, encumbrances
and security interests and not subject to any preemptive rights; (ii) that it
will not, by amendment of its articles of incorporation or through
reorganization, consolidation, merger, dissolution or sale of assets, or by any
other voluntary act, avoid or seek to avoid the observance or performance of any
of the covenants, stipulations or conditions to be observed or performed
hereunder by Issuer; (iii) promptly to take all action as may from time to time
be required (including (x) complying with all premerger notification, reporting
and waiting period requirements specified in 15 U.S.C. ss. 18a and regulations
promulgated thereunder and (y) in the event, under the Bank Holding Company Act
of 1956, as amended ("BHC Act"), or
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<PAGE> 6
the Change in Bank Control Act of 1978, as amended, or any state banking law,
prior approval of or notice to the Federal Reserve Board or to any other
Governmental Authority is necessary before the Option may be exercised,
cooperating with Grantee in preparing such applications or notices and providing
such information to each such Governmental Authority as it may require) in order
to permit Grantee to exercise the option and Issuer duly and effectively to
issue shares of Common Stock pursuant to this Agreement; and (iv) to promptly
take all action provided in this Agreement to protect the rights of Grantee
against dilution.
SECTION 4. Exchange of Option. This Agreement (and the Option
granted hereby) are exchangeable, without expense, at the option of Grantee,
upon presentation and surrender of this Agreement at the principal office of
Issuer, for other agreements providing for Options of different denominations
entitling the holder thereof to purchase, on the same terms and subject to the
same conditions as are set forth in this Agreement, in the aggregate the same
number of shares of Common Stock purchasable under this Agreement. The terms
"Agreement" and "Option" as used in this Agreement include any agreements and
related options for which this Agreement (and the Option granted hereby) may be
exchanged. Upon receipt by Issuer of evidence reasonably satisfactory to it of
the loss, theft, destruction or mutilation of this Agreement, and (in the case
of loss, theft or destruction) of reasonably satisfactory indemnification, and
upon surrender and cancellation of this Agreement, if mutilated, Issuer will
execute and deliver a new Agreement of like tenor and date. Any such new
Agreement executed and delivered shall constitute an additional contractual
obligation on the part of Issuer, whether or not the Agreement so lost, stolen,
destroyed or mutilated shall at any time be enforceable by anyone.
SECTION 5. Adjustment Upon Changes in Capitalization. The number
of shares of Common Stock purchasable upon the exercise of the option shall be
subject to adjustment from time to time as follows:
(a) In the event of any change in the Common Stock by reason of stock
dividends, split-ups, mergers, recapitalizations, combinations, subdivisions,
conversions, exchanges of shares or the like, the type and number of shares of
Common Stock purchasable upon exercise hereof shall be appropriately adjusted
and proper provision shall be made so that, in the event that any additional
shares of Common Stock are to be issued or otherwise to become outstanding as a
result of any such change (other than pursuant to an exercise of the Option),
the number of shares of Common Stock that remain subject to the Option shall be
increased so that, after such issuance, and together with shares of Common Stock
previously issued pursuant to the exercise of the Option (as adjusted on account
of any of the foregoing changes in the Common Stock), it equals 19.9% of the
number of shares of Common Stock then issued and outstanding.
(b) Whenever the number of shares of Common Stock purchasable upon
exercise hereof is adjusted as provided in this Section 5, the Option Price
shall be adjusted by multiplying the Option Price by a fraction, the numerator
of which shall be equal to the number of shares of Common Stock purchasable
prior to the adjustment and the denominator of which shall be equal to the
number of shares of Common Stock purchasable after the adjustment.
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<PAGE> 7
SECTION 6. Registration Rights.
(a) At any time after the occurrence of a Purchase Event that occurs
prior to an Exercise Termination Event, Issuer shall, at the request of Grantee
(whether on its own behalf or on behalf of any subsequent holder of the Option,
or part thereof, or any of the shares of Common Stock issued pursuant to this
Agreement), promptly prepare, file and keep current a shelf registration
statement under the Securities Act covering any shares issued and issuable
pursuant to the Option and shall use its best efforts to cause such registration
statement to become effective, and to remain current and effective for a period
not in excess of 180 days from the day such registration statement first becomes
effective, in order to permit the sale or other disposition of any shares of
Common Stock issued upon total or partial exercise of the Option ("Option
Shares") in accordance with any plan of disposition requested by Grantee;
provided, however, that Issuer may postpone filing a registration statement
relating to a registration request by Grantee under this Section 6 for a period
of time (not in excess of 60 days) if in its judgment such filing would require
the disclosure of material information that Issuer has a bona fide business
purpose for preserving as confidential. Grantee shall have the right to demand
two such registrations. The foregoing notwithstanding, if, at the time of any
request by Grantee for registration of Option Shares as provided above, Issuer
is in the process of registration with respect to an underwritten public
offering of shares of Common Stock, and if in the good faith judgment of the
managing underwriter or managing underwriters, or, if none, the sole underwriter
or underwriters, of such offering the offering or inclusion of the Option Shares
would interfere materially with the successful marketing of the shares of Common
Stock offered by Issuer, the number of Option Shares otherwise to be covered in
the registration statement contemplated hereby may be reduced; provided,
however, that after any such required reduction the number of Option Shares to
be included in such offering for the account of Grantee shall constitute at
least 25% of the total number of shares of Grantee and Issuer covered in such
registration statement; provided further, however, that if such reduction
occurs, then Issuer shall file a registration statement for the balance as
promptly as practicable thereafter as to which no reduction pursuant to this
Section 6(a) shall be permitted or occur and the Grantee shall thereafter be
entitled to one additional registration statement. Grantee shall provide all
information reasonably requested by Issuer for inclusion in any registration
statement to be filed hereunder. In connection with any such registration,
Issuer and Grantee shall provide each other with representations, warranties,
indemnities and other agreements customarily given in connection with such
registrations. If requested by Grantee in connection with such registration,
Issuer and Grantee shall become a party to any underwriting agreement relating
to the sale of such shares, but only to the extent of obligating themselves in
respect of representations, warranties, indemnities and other agreements
customarily included in such underwriting agreements. Upon receiving any request
under this Section 6 from any Grantee, Issuer agrees to promptly send a copy
thereof to any other person known to Issuer to be entitled to registration
rights under this Section 6. Notwithstanding the foregoing, (i) if Grantee
revokes any exercise notice or fails to exercise any Option with respect to any
exercise notice pursuant to Section 2(e), Issuer shall not be obligated to
continue any registration process with respect to the sale of Option Shares
issuable upon the exercise of such Option and Grantee shall not be deemed to
have demanded registration of Option Shares and (ii) in no event shall Issuer be
obligated to effect more
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<PAGE> 8
than two registrations pursuant to this Section 6 by reason of the fact that
there shall be more than one Grantee as a result of any assignment or division
of this Agreement.
(b) In the event that Grantee requests Issuer to file a registration
statement following the failure to obtain any approval required to exercise the
Option as described in Section 9, the closing of the sale or other disposition
of the Common Stock or other securities pursuant to such registration statement
shall occur substantially simultaneously with the exercise of the Option.
SECTION 7. Repurchase of Option.
(a) Upon the occurrence of a Purchase Event that occurs prior to an
Exercise Termination Event, (i) at the request (the date of such request being
the "Option Repurchase Request Date") of Grantee, Issuer shall repurchase the
Option from Grantee at a price (the "Option Repurchase Price") equal to the
amount by which (A) the Market/Offer Price (as defined below) exceeds (B) the
Option Price, multiplied by the number of shares for which the Option may then
be exercised and (ii) at the request (the date of such request being the "Option
Share Repurchase Request Date") of the owner of Option Shares from time to time
(the "Owner"), Issuer shall repurchase such number of the Option Shares from the
Owner as the Owner shall designate at a price (the "Option Share Repurchase
Price") equal to the Market/Offer Price multiplied by the number of Option
Shares so designated. The term "Market/Offer Price" shall mean the highest of
(i) the price per share of Common Stock at which a Tender Offer or Exchange
Offer therefor has been made after the date hereof and on or prior to the Option
Repurchase Request Date or the Option Share Repurchase Request Date, as the case
may be, (ii) the price per share of Common Stock paid or to be paid by any third
party pursuant to an agreement with Issuer (whether by way of a merger,
consolidation or otherwise), (iii) the highest last sale price for shares of
Common Stock within the 180-day period ending on the Option Repurchase Request
Date or the Option Share Repurchase Request Date, as the case may be, listed on
either the OTC Bulletin Board, The Nasdaq Stock Market or such other principal
market or exchange on which the Common Stock is traded (as reported by The Wall
Street Journal, or, if not reported thereby, another authoritative source), (iv)
in the event of a sale of all or substantially all of Issuer's assets, the sum
of the price paid in such sale for such assets and the current market value of
the remaining assets of Issuer as determined by a nationally-recognized
independent investment banking firm selected by Grantee or the Owner, as the
case may be, divided by the number of shares of Common Stock of Issuer
outstanding at the time of such sale. In determining the Market/Offer Price, the
value of consideration other than cash shall be the value determined by a
nationally-recognized independent investment banking firm selected by Grantee or
the Owner, as the case may be, whose determination shall be conclusive and
binding on all parties.
(b) Grantee or the Owner, as the case may be, may exercise its right to
require Issuer to repurchase the Option and/or any Option Shares pursuant to
this Section 7 by surrendering for such purpose to Issuer, at its principal
office, a copy of this Agreement or certificates for Option Shares, as
applicable, accompanied by a written notice or notices stating that Grantee or
the Owner, as the case may be, elects to require Issuer to repurchase the Option
and/or the Option Shares in accordance with the provisions of this Section 7. As
promptly as practicable, and in any event within five
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<PAGE> 9
business days after the surrender of the Option and/or certificates representing
Option Shares and the receipt of such notice or notices relating thereto, Issuer
shall deliver or cause to be delivered to Grantee the Option Repurchase Price or
to the Owner the Option Share Repurchase Price or the portion thereof that
Issuer is not then prohibited from so delivering under applicable law and
regulation or as a consequence of administrative policy.
(c) Issuer hereby undertakes to use its best efforts to obtain all
required regulatory and legal approvals and to file any required notices as
promptly as practicable in order to accomplish any repurchase contemplated by
this Section 7. Nonetheless, to the extent that Issuer is prohibited under
applicable law or regulation, or as a consequence of administrative policy, from
repurchasing any Option and/or any Option Shares in full, Issuer shall promptly
so notify Grantee and/or the Owner and thereafter deliver or cause to be
delivered, from time to time, to Grantee and/or the Owner, as appropriate, the
portion of the Option Repurchase Price and the Option Share Repurchase Price,
respectively, that it is no longer prohibited from delivering, within five
business days after the date on which Issuer is no longer so prohibited;
provided, however, that if Issuer at any time after delivery of a notice of
repurchase pursuant to Section 7(b) is prohibited under applicable law or
regulation, or as a consequence of administrative policy, from delivering to
Grantee and/or the Owner, as appropriate, the Option Repurchase Price or the
Option Share Repurchase Price, respectively, in full, Grantee or the Owner, as
appropriate, may revoke its notice of repurchase of the Option or the Option
Shares either in whole or in part whereupon, in the case of a revocation in
part, Issuer shall promptly (i) deliver to Grantee and/or the Owner, as
appropriate, that portion of the Option Purchase Price or the Option Share
Repurchase Price that Issuer is not prohibited from delivering after taking into
account any such revocation and (ii) deliver, as appropriate, either (A) to
Grantee, a new Agreement evidencing the right of Grantee to purchase that number
of shares of Common Stock equal to the number of shares of Common Stock
purchasable immediately prior to the delivery of the notice of repurchase less
the number of shares of Common Stock covered by the portion of the Option
repurchased or (B) to the Owner, a certificate for the number of Option Shares
covered by the revocation.
(d) Issuer shall not enter into any agreement with any party (other
than Grantee or a Grantee Subsidiary) for an Acquisition Transaction unless the
other party thereto assumes all the obligations of Issuer pursuant to this
Section 7 in the event that Grantee or the Owner elects, in its sole discretion,
to require such other party to perform such obligations.
SECTION 8. Substitution of Option.
(a) In the event that prior to an Exercise Termination Event, Issuer
shall enter into an agreement (i) to consolidate or merge with any person, other
than Grantee or a Grantee Subsidiary, and shall not be the continuing or
surviving corporation of such consolidation or merger, (ii) to permit any
person, other than Grantee or a Grantee Subsidiary, to merge into Issuer and
Issuer shall be the continuing or surviving corporation, but, in connection with
such merger, the then outstanding shares of Common Stock shall be changed into
or exchanged for stock or other securities of any other person or cash or any
other property or the then outstanding shares of Common Stock shall
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<PAGE> 10
after such merger represent less than 50% of the outstanding shares and share
equivalents of the merged company, or (iii) to sell or otherwise transfer all or
substantially all of its or any Material Subsidiary's assets to any person,
other than Grantee or a Grantee Subsidiary, then, and in each such case, the
agreement governing such transaction shall make proper provision so that the
Option shall, upon the consummation of such transaction and upon the terms and
conditions set forth herein, be converted into, or exchanged for, an option (the
"Substitute Option"), at the election of Grantee, of either (x) the Acquiring
Corporation (as defined below) or (y) any person that controls the Acquiring
Corporation (the Acquiring Corporation and any such controlling person being
hereinafter referred to as the "Substitute Option Issuer").
(b) The Substitute Option shall be exercisable for such number of
shares of the Substitute Common Stock (as is hereinafter defined) as is equal to
the Market/Offer Price (as defined in Section 7) multiplied by the number of
shares of the Issuer Common Stock for which the Option was theretofore
exercisable, divided by the Average Price (as is hereinafter defined). The
exercise price of the Substitute Option per share of the Substitute Common Stock
(the "Substitute Purchase Price") shall then be equal to the Option Price
multiplied by a fraction in which the numerator is the number of shares of the
Issuer Common Stock for which the Option was theretofore exercisable and the
denominator is the number of shares for which the Substitute Option is
exercisable.
(c) The Substitute Option shall otherwise have the same terms as the
Option, provided that if the terms of the Substitute Option cannot, for legal
reasons, be the same as the option, such terms shall be as similar as possible
and in no event less advantageous to Grantee, and provided further that the
terms of the Substitute Option shall include (by way of example and not
limitation) provisions for the repurchase of the Substitute Option and
Substitute Common Stock by the Substitute Option Issuer on the same terms and
conditions as provided in Section 7.
(d) The following terms have the meanings indicated:
(i) "Acquiring Corporation" shall mean (i) the continuing or
surviving corporation of a consolidation or merger with
Issuer (if other than Issuer), (ii) Issuer in a merger in
which Issuer is the continuing or surviving person, and
(iii) the transferee of all or any substantial part of the
Issuer's assets (or the assets of any of Issuer's Material
Subsidiaries).
(ii) "Substitute Common Stock" shall mean the common stock
issued by the Substitute Option Issuer upon exercise of
the Substitute Option.
(iii) "Average Price" shall mean the average closing price of a
share of the Substitute Common Stock for the one year
immediately preceding the consolidation, merger or sale in
question, but in no event higher than the closing price of
the shares of the Substitute Common Stock on the day
preceding such consolidation, merger or sale; provided
that if Issuer is the issuer of the Substitute Option, the
Average Price shall be computed with
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<PAGE> 11
respect to a share of common stock issued by Issuer, the
person merging into Issuer or by any company which
controls or is controlled by such merging person, as
Grantee may elect.
(e) In no event, pursuant to any of the foregoing paragraphs, shall
the Substitute Option be exercisable for more than 19.9% of the aggregate of the
shares of the Substitute Common Stock outstanding immediately prior to the
issuance of the Substitute Option. In the event that the Substitute Option would
be exercisable for more than 19.9% of the aggregate of the shares of Substitute
Common Stock but for this clause (e), the Substitute Option Issuer shall make a
cash payment to Grantee equal to the excess of (i) the value of the Substitute
Option without giving effect to the limitation in this clause (e) over (ii) the
value of the Substitute Option after giving effect to the limitation in the
clause (e). This difference in value shall be determined by a nationally
recognized investment banking firm selected by Grantee and the Substitute Option
Issuer.
SECTION 9. Approvals. Notwithstanding Sections 2, 6 and 7, if
Grantee has given the notice referred to in one or more of such Sections, the
exercise of the rights specified in any such Section shall be extended (a) if
the exercise of such rights requires obtaining regulatory approvals (including
any required waiting periods) to the extent necessary to obtain all regulatory
approvals for the exercise of such rights, and (b) to the extent necessary to
avoid liability under Section 16(b) of the Securities Exchange Act by reason of
such exercise; provided that in no event shall any closing date occur more than
18 months after the related Notice Date, and, if the closing date shall not have
occurred within such period due to the failure to obtain any required approval
by the Federal Reserve Board or any other Governmental Authority despite the
best efforts of Issuer or the Substitute Option Issuer, as the case may be, to
obtain such approvals, the exercise of the Option shall be deemed to have been
rescinded as of the related Notice Date. In the event (a) Grantee receives
official notice that an approval of the Federal Reserve Board or any other
Governmental Authority required for the purchase and sale of the Option Shares
will not be issued or granted or (b) a closing date has not occurred within 18
months after the related Notice Date due to the failure to obtain any such
required approval, Grantee shall be entitled to exercise the option in
connection with the resale of the Option Shares pursuant to a registration
statement as provided in Section 6. Subject to all other provisions of this
Agreement, nothing contained in this Agreement shall restrict Grantee from
specifying alternative means of exercising rights pursuant to Sections 2, 6 or 7
of this Agreement in the event that the exercising of any such rights shall not
have occurred due to the failure to obtain any required approval referred to in
this Section 9.
SECTION 10. Representations and Warranties of Issuer. Issuer
hereby represents and warrants to Grantee as follows:
(a) Issuer has the requisite corporate power and authority to execute
and deliver this Agreement and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly approved by the Board of
Directors of Issuer and no other corporate proceedings on the part of Issuer are
necessary to authorize this Agreement or to consummate the transactions so
contemplated. This
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Agreement has been duly executed and delivered by, and constitutes a valid and
binding obligation of, Issuer, enforceable against Issuer in accordance with its
terms.
(b) Issuer has taken all necessary corporate action to authorize and
reserve and to permit it to issue, and at all times from the date hereof through
the termination of this Agreement in accordance with its terms will have
reserved for issuance upon the exercise of the Option, that number of shares of
Common Stock equal to the maximum number of shares of Common Stock at any time
and from time to time issuable hereunder, and all such shares, upon issuance
pursuant hereto, will be duly authorized, validly issued, fully paid,
nonassessable, and will be delivered free and clear of all claims, liens,
encumbrances and security interests and not subject to any preemptive rights.
SECTION 11. Representations and Warranties of Grantee.
(a) Grantee has all requisite corporate power and authority to enter
into this Agreement and, subject to any approvals or consents referred to
herein, to consummate the transactions contemplated hereby. The execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby have been duly authorized by all necessary corporate action on the part
of Grantee. This Agreement has been duly executed and delivered by Grantee.
(b) The Option is not being, and any shares of Common Stock or other
securities acquired by Grantee upon exercise of the Option, will not be,
acquired with a view to the public distribution thereof and will not be
transferred or otherwise disposed of except in a transaction registered or
exempt from registration under the Securities Act.
SECTION 12. Assignment.
(a) Neither of the parties hereto may assign any of its rights or
delegate any of its obligations under this Agreement or the Option created
hereunder to any other person without the express written consent of the other
party, except that Grantee may assign this Agreement to a wholly owned
subsidiary of Grantee and Grantee may assign its rights hereunder in whole or in
part after the occurrence of a Preliminary Purchase Event; provided, however,
that until the date at which Grantee is permitted under the BHC Act after the
Federal Reserve Board has approved an application by Grantee under the BHC Act
to acquire the shares of Common Stock subject to the Option, Grantee may not
assign its rights under the Option, other than to a wholly owned subsidiary of
Grantee, except in (i) a widely dispersed public distribution, (ii) a private
placement in which no one party acquires the right to purchase in excess of 2%
of the voting shares of Issuer, (iii) an assignment to a single party (e.g., a
broker or investment banker) for the purpose of conducting a widely dispersed
public distribution on Grantee's behalf, or (iv) any other manner approved by
the Federal Reserve Board. The term "Grantee" as used in this Agreement shall
also be deemed to refer to Grantee's permitted assigns.
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<PAGE> 13
(b) Any assignment of rights of Grantee to any permitted assignee of
Grantee hereunder shall bear the restrictive legend at the beginning thereof
substantially as follows:
The transfer of the option represented by this assignment and the
related option agreement is subject to resale restrictions
arising under the Securities Act of 1933, as amended, and to
certain provisions of an agreement between Citizens Banking
Corporation ("Grantee") and F & M Bancorporation, Inc. ("Issuer")
dated as of the 18th day of April, 1999. A copy of such agreement
is on file at the principal office of Issuer and will be provided
to any permitted assignee of the option without change upon
receipt by Issuer of a written request therefor.
It is understood and agreed that (i) the reference to the resale restrictions of
the Securities Act in the above legend shall be removed by delivery of
substitute assignments without such reference if Grantee shall have delivered to
Issuer a copy of a letter from the staff of the SEC, or an opinion of counsel,
in form and substance satisfactory to Issuer, to the effect that such legend is
not required for purposes of the Securities Act; (ii) the reference to the
provisions of this Agreement in the above legend shall be removed by delivery of
substitute assignments without such reference if the Option has been sold or
transferred in compliance with the provisions of this Agreement and under
circumstances that do not require the retention of such reference; and (iii) the
legend shall be removed in its entirety if the conditions in the preceding
clauses (i) and (ii) are both satisfied. In addition, such assignments shall
bear any other legend as may be required by law.
SECTION 13. Consents. Each of Grantee and Issuer will use its
reasonable best efforts to make all filings with, and to obtain consents of, all
third parties and Governmental Authorities necessary for the consummation of the
transactions contemplated by this Agreement, including, without limitation,
making application, if necessary, for listing of the shares of Common Stock
issuable hereunder on any exchange or quotation system and applying to the
Federal Reserve Board under the BHC Act and to state and foreign banking
authorities for approval to acquire the shares issuable under this Agreement.
SECTION 14. Specific Performance. The parties to this Agreement
acknowledge that damages would be an inadequate remedy for a breach of this
Agreement by either party to this Agreement and that the obligations of the
parties to this Agreement shall be enforceable by either party to this Agreement
through injunctive or other equitable relief. Both parties further agree to
waive any requirement for the securing or posting of any bond in connection with
the obtaining of any such equitable relief and that this provision is without
prejudice to any other rights that the parties hereto may have for any failure
to perform this Agreement.
SECTION 15. Severability. If any term, provision, covenant or
restriction contained in this Agreement is held by a court or a federal or state
regulatory agency of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms, provisions and covenants and
restrictions
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<PAGE> 14
contained in this Agreement shall remain in full force and effect, and shall in
no way be affected, impaired or invalidated. If for any reason such court or
regulatory agency determines that Grantee is not permitted to acquire, or Issuer
is not permitted to repurchase pursuant to Section 7, the full number of shares
of Common Stock provided in Section 1 (as adjusted pursuant to this Agreement),
it is the express intention of Issuer to allow Grantee to acquire or to require
Issuer to repurchase such lesser number of shares as may be permissible, without
any amendment or modification of this Agreement.
SECTION 16. Notices. All notices, requests, claims, demands and
other communications under this Agreement shall be deemed to have been duly
given when delivered in person, by cable, telegram, telecopy or telex, or by
registered or certified mail (postage prepaid, return receipt requested) at the
respective addresses of the parties set forth in the Plan.
SECTION 17. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Wisconsin.
SECTION 18. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed to be an original, but all of
which shall constitute one and the same agreement and shall be effective at the
time of execution.
SECTION 19. Expenses. Except as otherwise expressly provided in
this Agreement, each of the parties to this Agreement shall bear and pay all
costs and expenses incurred by it or on its behalf in connection with the
transactions contemplated hereunder, including fees and expenses of its own
financial consultants, investment bankers, accountants and counsel.
SECTION 20. Entire Agreement; No Third-Party Beneficiary. Except as
otherwise expressly provided in this Agreement or in the Plan, this Agreement
contains the entire agreement between the parties with respect to the
transactions contemplated hereunder and supersedes all prior arrangements or
understandings with respect thereof, written or oral. The terms and conditions
of this Agreement shall inure to the benefit of and be binding upon the parties
hereto and their respective successors and permitted assigns. Nothing in this
Agreement, expressed or implied, is intended to confer upon any party, other
than the parties hereto, and their respective successors except as assigns, any
rights, remedies, obligations or liabilities under or by reason of this
Agreement, except as expressly provided herein.
SECTION 21. Definitions. Capitalized terms used in this Agreement
and not defined herein but defined in the Plan shall have the meanings assigned
thereto in the Plan.
SECTION 22. Conflict With Plan. Nothing contained in this
Agreement shall be deemed to authorize Issuer or Grantee to breach any provision
of the Plan.
SECTION 23. Majority in Interest. In the event that any selection
or determination is to be made by Grantee or the Owner hereunder and at the time
of such selection or determination there
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is more than one Grantee or Owner, such selection shall be made by a majority in
interest of such Grantees or Owners.
SECTION 24. Further Assurances. In the event of any exercise of the
option by Grantee, Issuer and such Grantee shall execute and deliver all other
documents and instruments and take all other action that may be reasonably
necessary in order to consummate the transactions provided for by such exercise.
SECTION 25. Shareholder Rights. Except to the extent Grantee
exercises the Option, Grantee shall have no rights to vote or receive dividends
or have any other rights as a shareholder with respect to shares of Common Stock
covered by this Agreement.
SECTION 26. Descriptive Headings. The descriptive headings
contained herein are for convenience of reference only and shall not affect in
any way the meaning or interpretation of this Agreement.
[this space intentionally left blank]
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IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
executed on its behalf by their officers thereunto duly authorized, all as of
the date first above written.
F & M BANCORPORATION, INC.
By: John W. Johnson
----------------------------
Name: John W. Johnson
Title: President and CEO
CITIZENS BANKING CORPORATION
By: Robert J. Vitito
----------------------------
Name: Robert J. Vitito
Title: President and CEO
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EXHIBIT 2
================================================================================
AGREEMENT AND PLAN OF MERGER
DATED AS OF THE 18TH DAY OF APRIL, 1999
BETWEEN
CITIZENS BANKING CORPORATION
AND
F & M BANCORPORATION, INC.
================================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
ARTICLE I. THE MERGER...........................................................................................2
SECTION 1.1. Structure of the Merger.....................................................................2
SECTION 1.2. Effect on Capital Stock.....................................................................2
SECTION 1.3. Exchange of Certificates....................................................................3
SECTION 1.4. Alternative Structure.......................................................................6
SECTION 1.5. Options.....................................................................................6
SECTION 1.6. Tax and Accounting Consequences.............................................................7
ARTICLE II. CONDUCT PENDING THE MERGER..........................................................................7
SECTION 2.1. Conduct of the Company's Business Prior to the Effective Time...............................7
SECTION 2.2. Forbearance by the Company..................................................................7
SECTION 2.3. Cooperation................................................................................10
SECTION 2.4. Conduct of Parent's Business Prior to the Effective Time...................................10
SECTION 2.5. Cooperation of Parent......................................................................11
ARTICLE III. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.....................................................11
SECTION 3.1. Recitals True..............................................................................11
SECTION 3.2. Capital Stock..............................................................................11
SECTION 3.3. Due Organization...........................................................................12
SECTION 3.4. Authority..................................................................................12
SECTION 3.5. Subsidiaries; Significant Investments......................................................12
SECTION 3.6. Shareholder Approvals......................................................................12
SECTION 3.7. No Violations..............................................................................13
SECTION 3.8. Consents and Approvals.....................................................................13
SECTION 3.9. Company Reports............................................................................13
SECTION 3.10. Absence of Undisclosed Liabilities and Certain Changes or Events...........................14
SECTION 3.11. Taxes......................................................................................14
SECTION 3.12. Absence of Claims..........................................................................15
SECTION 3.13. Absence of Regulatory Actions..............................................................15
SECTION 3.14. Agreements.................................................................................15
SECTION 3.15. Labor Matters..............................................................................16
SECTION 3.16. Employee Benefit Plans.....................................................................16
SECTION 3.17. Properties.................................................................................18
SECTION 3.18. Knowledge as to Conditions.................................................................18
SECTION 3.19. Compliance with Laws.......................................................................19
SECTION 3.20. Fees.......................................................................................19
SECTION 3.21. Environmental Matters......................................................................19
</TABLE>
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SECTION 3.22. Allowance..................................................................................22
SECTION 3.23. Antitakeover Provisions Inapplicable.......................................................22
SECTION 3.24. Material Interests of Certain Persons......................................................22
SECTION 3.25. Insurance..................................................................................22
SECTION 3.26. Investment Securities......................................................................23
SECTION 3.27. Pooling of Interests.......................................................................23
SECTION 3.28. Derivatives................................................................................23
SECTION 3.29. Registration Obligations...................................................................23
SECTION 3.30. Books and Records..........................................................................23
SECTION 3.31. Corporate Documents........................................................................23
SECTION 3.32. Company Action.............................................................................23
SECTION 3.33. Indemnification............................................................................24
SECTION 3.34. Fair Lending; Community Reinvestment Act...................................................24
SECTION 3.35. Other Activities of the Company and its Subsidiaries.......................................24
SECTION 3.36. Year 2000..................................................................................25
SECTION 3.37. No Omission of Material Fact...............................................................25
SECTION 3.38. Conduct of Business........................................................................25
ARTICLE IV. REPRESENTATIONS AND WARRANTIES OF PARENT...........................................................25
SECTION 4.1. Recitals True..............................................................................25
SECTION 4.2. Capital Stock..............................................................................26
SECTION 4.3. Due Organization...........................................................................26
SECTION 4.4. Authority..................................................................................26
SECTION 4.5. Subsidiaries; Significant Investments......................................................26
SECTION 4.6. Shareholder Approvals......................................................................26
SECTION 4.7. No Violations..............................................................................27
SECTION 4.8. Consents and Approvals.....................................................................27
SECTION 4.9. Parent Reports.............................................................................27
SECTION 4.10. Absence of Undisclosed Liabilities and Certain Changes or Events...........................28
SECTION 4.11. Taxes......................................................................................28
SECTION 4.12. Absence of Claims..........................................................................29
SECTION 4.13. Absence of Regulatory Actions..............................................................29
SECTION 4.14. Agreements.................................................................................29
SECTION 4.15. Labor Matters..............................................................................29
SECTION 4.16. Employee Benefit Plans.....................................................................29
SECTION 4.17. Properties.................................................................................31
SECTION 4.18. Knowledge as to Conditions.................................................................31
SECTION 4.19. Compliance with Laws.......................................................................31
SECTION 4.20. Fees.......................................................................................32
SECTION 4.21. Environmental Matters......................................................................32
</TABLE>
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SECTION 4.22. Allowance..................................................................................34
SECTION 4.23. Material Interests of Certain Persons......................................................34
SECTION 4.24. Insurance..................................................................................34
SECTION 4.25. Investment Securities......................................................................35
SECTION 4.26. Pooling of Interests.......................................................................35
SECTION 4.27. Derivatives................................................................................35
SECTION 4.28. Registration Obligations...................................................................35
SECTION 4.29. Books and Records..........................................................................35
SECTION 4.30. Corporate Documents........................................................................35
SECTION 4.31. Parent Action..............................................................................35
SECTION 4.32. Fair Lending; Community Reinvestment Act...................................................35
SECTION 4.33. Other Activities of Parent and its Subsidiaries............................................36
SECTION 4.34. Year 2000..................................................................................36
SECTION 4.35. No Omission of Material Fact...............................................................37
SECTION 4.36. Conduct of Business........................................................................37
ARTICLE V. ADDITIONAL AGREEMENTS...............................................................................37
SECTION 5.1. Acquisition Proposals......................................................................37
SECTION 5.2. Certain Policies of the Company............................................................38
SECTION 5.3. Access and Information.....................................................................38
SECTION 5.4. Certain Filings, Consents and Arrangements.................................................38
SECTION 5.5. Antitakeover Statutes......................................................................39
SECTION 5.6. Directors' and Officers' Indemnification...................................................39
SECTION 5.7. Additional Agreements......................................................................40
SECTION 5.8. Publicity..................................................................................40
SECTION 5.9. Regulatory Matters.........................................................................40
SECTION 5.10. Shareholders' Meeting......................................................................41
SECTION 5.11. Affiliates; Publication of Combined Financial Results......................................41
SECTION 5.12. Authorization, Reservation and Listing.....................................................42
SECTION 5.13. Notification of Certain Matters............................................................42
SECTION 5.14. Board of Directors and Executive Committee of Parent.......................................43
SECTION 5.15. Benefit Plans..............................................................................43
SECTION 5.16. Employment Arrangements....................................................................43
ARTICLE VI. CONDITIONS TO CONSUMMATION.........................................................................43
SECTION 6.1. Conditions to All Parties' Obligations.....................................................44
SECTION 6.2. Conditions to the Obligations of Parent....................................................45
SECTION 6.3. Conditions to the Obligation of the Company................................................45
</TABLE>
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ARTICLE VII. TERMINATION.......................................................................................46
SECTION 7.1. Termination................................................................................46
SECTION 7.2. Effect of Termination......................................................................47
ARTICLE VIII. EFFECTIVE DATE AND EFFECTIVE TIME................................................................47
SECTION 8.1. Effective Date and Effective Time..........................................................47
ARTICLE IX. OTHER MATTERS......................................................................................47
SECTION 9.1. Certain Definitions; Interpretation........................................................47
SECTION 9.2. Survival...................................................................................48
SECTION 9.3. Waiver.....................................................................................48
SECTION 9.4. Counterparts...............................................................................48
SECTION 9.5. Governing Law..............................................................................48
SECTION 9.6. WAIVER OF JURY TRIAL.......................................................................48
SECTION 9.7. Expenses...................................................................................49
SECTION 9.8. Notices....................................................................................49
SECTION 9.9. Entire Agreement; Etc......................................................................50
SECTION 9.10. Assignment.................................................................................50
ANNEX 1..........................................................................................................52
Stock Option Agreement......................................................................................52
ANNEX 2..........................................................................................................53
Affiliate Letter............................................................................................53
</TABLE>
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AGREEMENT AND PLAN OF MERGER, dated as of the 18th day of April, 1999
(this "Plan"), between Citizens Banking Corporation ("Parent") and F & M
Bancorporation, Inc. (the "Company").
RECITALS:
A. Parent. Parent is a corporation duly incorporated, validly existing
and in good standing under the laws of the State of Michigan, with its principal
executive offices located in Flint, Michigan. As of the date hereof, Parent has
100,000,000 authorized shares of common stock, without par value, of which no
more than 27,617,275 shares were outstanding as of the date hereof, 5,000,000
authorized shares of preferred stock, without par value, none of which were
outstanding as of the date hereof, and has no other class of capital stock
authorized. Parent is a bank holding company duly registered with the Board of
Governors of the Federal Reserve System (the "Federal Reserve Board") under the
Bank Holding Company Act of 1956, as amended (the "BHC Act").
B. The Company. The Company is a corporation duly incorporated, validly
existing and in active status under the laws of the State of Wisconsin, with its
principal executive offices located in Kaukauna, Wisconsin. As of the date
hereof, the Company has 50,000,000 authorized shares of common stock, par value
$1.00 per share ("Company Common Stock"), of which no more than 15,567,381
shares were outstanding as of the date hereof, and has no other class of capital
stock authorized. The Company is a bank holding company duly registered with the
Federal Reserve Board under the BHC Act.
C. Options, Etc. Neither the Company nor any of its subsidiaries has
any shares of its capital stock reserved for issuance, any outstanding option,
call or commitment relating to shares of its capital stock or any outstanding
securities, obligations or agreements convertible into or exchangeable for, or
giving any person any right (including, without limitation, preemptive rights)
to subscribe for or acquire from it, any shares of its capital stock, except as
set forth in the Company Reports (as defined in Section 3.9) or in the Company
Disclosure Letter (as defined in Article III).
D. Parent Options, Etc. Neither Parent nor any of its subsidiaries has
any shares of its capital stock reserved for issuance, any outstanding option,
call or commitment relating to shares of its capital stock or any outstanding
securities, obligations or agreements convertible into or exchangeable for, or
giving any person any right (including, without limitation, preemptive rights)
to subscribe for or acquire from it, any shares of its capital stock, except as
set forth in the Parent Reports (as defined in Section 4.9).
E. Stock Option Agreement. As a condition and inducement to Parent's
willingness to enter into this Plan, the Company is entering into a Stock Option
Agreement dated as of the date hereof in the form of Annex 1 hereto (the "Stock
Option Agreement") with Parent pursuant to which the Company has granted to
Parent an option to purchase shares of Company Common Stock.
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F. Tax-Free Reorganization. The parties hereto intend that the Merger
provided for herein shall qualify as a reorganization within the meaning of
Section 368(a) of the Internal Revenue Code of 1986, as amended (the "Code"),
and the rules and regulations promulgated thereunder, and this Plan is intended
to be and is adopted as a plan of reorganization within the meaning of Section
368 of the Code.
G. Board Approvals. The respective Boards of Directors of Parent and
the Company have duly approved this Plan and have duly authorized its execution
and delivery.
In consideration of their mutual promises and obligations hereunder,
the parties hereto adopt and make this Plan and prescribe the terms and
conditions hereof and the manner and basis of carrying it into effect, which
shall be as follows:
ARTICLE I. THE MERGER
SECTION 1.1. Structure of the Merger. On the Effective Date (as defined
in Section 8.1):
(a) Effect of the Merger. The Company will merge (the "Merger") with
and into Parent, with Parent being the surviving corporation (the "Surviving
Corporation"), pursuant to the provisions of, and with the effect provided in
the Michigan Business Corporation Act (the "MBCA") and the Wisconsin Business
Corporation Law (the "WBCL"). The separate corporate existence of the Company
shall thereupon cease. The Surviving Corporation shall continue to be governed
by the MBCA and its separate corporate existence with all of its rights,
privileges, immunities, powers and franchises shall continue unaffected by the
Merger. The Merger shall have the effects set forth in Section 724 of the MBCA
and Subchapter XI of Chapter 180 of the WBCL.
(b) Articles of Incorporation and By-laws. The articles of
incorporation and by-laws of the Surviving Corporation shall be the articles of
incorporation and by-laws of Parent immediately prior to the Effective Time (as
defined in Section 8.1).
(c) Directors and Officers. The Board of Directors of Parent
immediately prior to the Effective Time shall be the initial Board of Directors
of the Surviving Corporation and the officers of Parent immediately prior to the
Effective Time shall be the initial officers of the Surviving Corporation.`
SECTION 1.2. Effect on Capital Stock. At the Effective Time (as defined
in Section 8.1), automatically and without any action on the part of any holder
of any of the following securities:
(a) Conversion of Outstanding Shares. Each share (a "Share") of Company
Common Stock issued and outstanding at the Effective Time (other than shares
held directly or indirectly by Parent, other than shares held in a fiduciary or
agency capacity or in satisfaction of a debt previously
2
<PAGE> 8
contracted), shall be converted, subject to Section 1.2(c), into the right to
receive 1.303 shares (the "Exchange Ratio") of validly issued, fully paid and
nonassessable shares ("Parent Shares") of the common stock, without par value,
of Parent (the "Parent Common Stock"). Each share of Parent Common Stock issued
and outstanding at the Effective Time shall remain issued and outstanding. The
aggregate number of Parent Shares that shall be issued in the Merger, subject to
Section 1.2(b), shall be referred to herein as the "Stock Amount."
(b) Cancellation. Each Share held directly or indirectly by Parent,
other than Shares held in a fiduciary or agency capacity or in satisfaction of a
debt previously contracted, and Shares held as treasury stock of the Company,
shall be canceled and retired and shall cease to exist, and no exchange or
payment shall be made with respect thereto.
(c) Adjustments to Exchange Ratio. The Exchange Ratio and Stock Amount
shall be equitably adjusted to reflect fully the effect of any reclassification,
stock split, reverse split, stock dividend (including any dividend or
distribution of securities convertible into Parent Common Stock or Company
Common Stock), reorganization or other like change with respect to Parent Common
Stock or Company Common Stock, as applicable, occurring after the date hereof
and prior to the Effective Date.
(d) Fractional Shares. No certificates or script representing less than
one Parent Share shall be issued upon the surrender for exchange of a
certificate or certificates which immediately prior to the Effective Time
represented outstanding Shares (the "Certificates"). In lieu of any such
fractional share, each holder of Shares who would otherwise have been entitled
to a fraction of a Parent Share upon surrender of Certificates for exchange
shall be paid, upon such surrender, cash (without interest) determined by
multiplying (i) the per share closing price on The Nasdaq Stock Market of Parent
Common Stock on the date of the Effective Time by (ii) the fractional interest
of Parent Common Stock to which such holder would otherwise be entitled. As soon
as practicable after determining the amount of cash, if any, to be paid to
former holders of Company Common Stock with respect to any fractional shares of
Parent Common Stock, the Exchange Agent (as defined below) shall promptly pay
such amounts to such holders in accordance with this Article I.
SECTION 1.3. Exchange of Certificates.
(a) Exchange Agent. Parent shall supply, or shall cause to be supplied,
to or for the account of Harris Trust and Savings Bank, or such other bank
(which may be a subsidiary of Parent) or trust company as shall be designated by
Parent and reasonably satisfactory to the Company (the "Exchange Agent"), in
trust for the benefit of the holders of Company Common Stock, for exchange in
accordance with this Section 1.3, through the Exchange Agent, certificates
evidencing the Parent Shares issuable pursuant to Section 1.2 in exchange for
outstanding Shares.
(b) Exchange Procedures. As soon as reasonably practicable after the
Effective Time, Parent will instruct the Exchange Agent to mail to each holder
of record of Certificates (i) a letter of transmittal (which shall specify that
delivery shall be effected, and risk of loss and title to the
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<PAGE> 9
Certificates shall pass, only upon proper delivery of the Certificates to the
Exchange Agent and shall be in such form and have such other provisions as
Parent and the Company may reasonably specify), and (ii) instructions to effect
the surrender of the Certificates in exchange for the certificates evidencing
Parent Shares. Upon surrender of a Certificate for cancellation to the Exchange
Agent together with such letter of transmittal, duly executed, and such other
customary documents as may be required pursuant to such instructions, the holder
of such Certificate shall be entitled to receive in exchange therefor (A)
certificates evidencing that number of whole Parent Shares which such holder has
the right to receive in accordance with the Exchange Ratio in respect of the
Shares formerly evidenced by such Certificate, (B) any dividends or other
distributions to which such holder is entitled pursuant to Section 1.3(c), and
(C) cash in respect of fractional shares as provided in Section 1.2(e) (the
Parent Shares, dividends, distributions and cash being, collectively, the
"Merger Consideration"), and the Certificate so surrendered shall forthwith be
canceled. In the event of a transfer of ownership of Shares which is not
registered in the transfer records of the Company as of the Effective Time, the
Merger Consideration may be issued and paid in accordance with this Article I to
a transferee if the Certificate evidencing such Shares is presented to the
Exchange Agent, accompanied by all documents required to evidence and effect
such transfer pursuant to this Section 1.3 and by evidence that any applicable
stock transfer taxes have been paid. Until so surrendered, each outstanding
Certificate that, prior to the Effective Time, represented Shares of Company
Common Stock will be deemed from and after the Effective Time, for all corporate
purposes, other than the payment of dividends and subject to Section 1.2(e), to
evidence the ownership of the number of full Parent Shares into which such
shares of Company Common Stock shall have been so converted. Parent Shares
issued in the Merger shall be issued as of and deemed to be outstanding as of
the Effective Time. Parent shall cause all such Parent Shares issued in
accordance with the Merger to be duly authorized, validly issued, fully paid and
nonassessable.
(c) Distributions With Respect to Unexchanged Parent Shares. No
dividends or other distributions declared or made after the Effective Time with
respect to Parent Shares with a record date after the Effective Time shall be
paid to the holder of any unsurrendered Certificate with respect to the Parent
Shares they are entitled to receive until the holder of such Certificate shall
surrender such Certificate. Subject to applicable law, following surrender of
any such Certificate, there shall be paid to the record holder of the
certificates representing whole Parent Shares issued in exchange therefor,
without interest, (i) at the time of such surrender, the amount of dividends or
other distributions with a record date after the Effective Time theretofore paid
with respect to such whole Parent shares and (ii) at the appropriate payment
date, the amount of dividend or other distributions with a record date after the
Effective Time and a payment date subsequent to such surrender.
(d) Transfers of Ownership. If any certificate for Parent Shares is to
be issued in a name other than that which the Certificate surrendered in
exchange therefor is registered, it will be a condition to the issuance thereof
that the Certificate so surrendered will be properly endorsed and otherwise in
proper form for transfer and that the person requesting such exchange will have
paid to Parent or any agent designated by it any transfer or other taxes
required by reason of the issuance of a Certificate for Parent Shares in any
name other than that of the registered holder of the
4
<PAGE> 10
certificate surrendered, or have established to the satisfaction of Parent or
any agent designated by it that such tax has been paid or is not payable.
(e) Withholding Rights. Parent or the Exchange Agent shall be entitled
to deduct and withhold from the Merger Consideration otherwise payable pursuant
to this Plan to any holder of Company Common Stock such amounts as Parent or the
Exchange Agent is required to deduct and withhold with respect to the making of
such payment under the Code, or any provision of state, local or foreign tax
law. To the extent that amounts are so withheld by Parent or the Exchange Agent,
such withheld amounts shall be treated for all purposes of this Plan as having
been paid to the holder of the Shares in respect of which such deduction and
withholding was made by Parent or the Exchange Agent.
(f) No Further Ownership Rights in Company Common Stock. The Merger
Consideration delivered upon the surrender for exchange of Shares in accordance
with the terms hereof shall be deemed to have been issued in full satisfaction
of all rights pertaining to such Shares. From and after the Effective Time,
there shall be no transfers on the stock transfer records of the Company of any
shares of Company Common Stock that were outstanding immediately prior to the
Effective Time. If after the Effective Time Certificates are presented to the
Surviving Corporation, they shall be canceled and exchanged for the Merger
Consideration deliverable in respect thereof pursuant to this Plan in accordance
with the procedures set forth in this Section 1.3.
(g) Unclaimed Merger Consideration. Any portion of the aggregate Merger
Consider ation or the proceeds of any investments thereof that remains unclaimed
by the shareholders of the Company for six months after the Effective Time shall
be repaid by the Exchange Agent to Parent. Any shareholder of the Company who
has not theretofore complied with this Section 1.3 shall thereafter be entitled
to look only to Parent for payment of the Merger Consideration deliverable in
respect of each share of Company Common Stock held by such stockholder without
any interest thereon. If outstanding certificates for shares of Company Common
Stock are not surrendered or the payment for them is not claimed prior to the
date on which such payments would otherwise escheat to or become the property of
any governmental unit or agency, the unclaimed items shall, to the extent
permitted by abandoned property and any other applicable law, become the
property of Parent (and to the extent not in its possession shall be paid over
to Parent), free and clear of all claims or interest of any person previously
entitled to such claims. Notwithstanding the foregoing, none of Parent, the
Surviving Corporation, the Exchange Agent or any other person shall be liable to
any former holder of Company Common Stock for any amount delivered to a public
official pursuant to applicable abandoned property, escheat or similar laws.
(h) Lost, Stolen or Destroyed Certificates. In the event any
Certificate shall have been lost, stolen or destroyed, upon the making of an
affidavit of that fact by the person claiming such Certificate to be lost,
stolen or destroyed and, if required by the Exchange Agent, the posting by such
person of a bond in such amount as the Exchange Agent may direct as indemnity
against any claim that may be made against it with respect to such Certificate,
the Exchange Agent will issue in
5
<PAGE> 11
exchange for such lost, stolen or destroyed Certificate the shares of Parent
Common Stock and any cash in lieu of fractional shares deliverable in exchange
therefor pursuant to this Agreement.
SECTION 1.4. Alternative Structure. Notwithstanding anything in this
Plan to the contrary, Parent may specify that, before or after the Merger, any
of its direct or indirect subsidiaries and the Company and any of its direct or
indirect subsidiaries shall enter into transactions other than those described
in Article I hereof in order to effect the purposes of this Plan or to
facilitate the consolidation of the Company's subsidiaries, and Parent and the
Company shall take all action necessary and appropriate to effect, or cause to
be effected, such transactions; provided, however, that no such specification
shall materially and adversely effect the timing of the consummation of the
transactions contemplated herein, the tax effect or economic benefits of the
Merger to the holders of Company Common Stock or the "pooling of interests"
accounting treatment of the transaction.
SECTION 1.5. Options. (a) At the Effective Time, each option granted by
the Company to purchase shares of Company Common Stock under (i) the Company's
1993 Incentive Stock Option Plan, (ii) the Company's 1993 Stock Option Plan for
Non-Employee Directors and (iii) any other stock option plan or arrangement of
the Company (collectively, the "Company Option Plans") which is outstanding and
unexercised immediately prior thereto shall cease to represent a right to
acquire shares of Company Common Stock and shall be converted automatically into
an option to purchase shares of Parent Common Stock in an amount and at an
exercise price determined as provided below, and otherwise subject to the terms
of the Company Option Plans pursuant to which such options have been issued and
the agreements evidencing grants thereunder:
(i) The number of shares of Parent Common Stock to be subject to
the new option shall be equal to the product of the number of
shares of Company Common Stock subject to the original option
and the Exchange Ratio; provided that any fractional shares of
Parent Common Stock resulting from such multiplication shall
be rounded to the nearest whole share; and
(ii) The exercise price per share of Parent Common Stock under the
new option shall be equal to the exercise price per share of
Company Common Stock under the original option divided by the
Exchange Ratio, provided that such exercise price shall be
rounded down to the nearest whole cent.
(b) The adjustment provided herein with respect to any options which
are "incentive stock options" (as defined in Section 422 of the Code) shall be
and is intended to be effected in a manner which is consistent with Section
424(a) of the Code. The duration and other terms of the new option shall be the
same as the original option except that all references to the Company shall be
deemed to be references to Parent.
(c) Parent agrees to file with Securities and Exchange Commission (the
"SEC") as soon as reasonably practicable after the Effective Time a registration
statement on Form S-8 or other appropriate form under the Securities Act of 1933
(together with the rules and regulations
6
<PAGE> 12
thereunder, the "Securities Act") to register Parent Common Stock issuable upon
exercise of options under the Company Option Plans and use its reasonable
efforts to cause such registration statement to remain effective until the
exercise or expiration of such options.
SECTION 1.6. Tax and Accounting Consequences. It is intended by the
parties hereto that the Merger shall (i) constitute a reorganization within the
meaning of Section 368 of the Code and (ii) qualify for accounting treatment as
a pooling of interests. The parties hereto hereby adopt this Plan as a "plan of
reorganization" within the meaning of Sections 1.368-2(g) and 1.368-3(a) of the
United States Treasury Regulations.
ARTICLE II. CONDUCT PENDING THE MERGER
SECTION 2.1. Conduct of the Company's Business Prior to the Effective
Time. Except as expressly provided in this Plan, during the period from the date
of this Plan to the Effective Time, the Company shall, and shall cause each of
its subsidiaries to, (i) conduct its business in the usual, regular and ordinary
course of business consistent with past practice, (ii) use its best efforts to
maintain and preserve intact its business organization, properties, leases,
employees and advantageous business relationships and retain the services of its
officers and key employees, (iii) use its best efforts to consummate the
Agreement of Merger and Reorganization, dated as of July 21, 1998, by and
between the Company, CBE, Inc., and F & M Merger Corporation, as amended on
November 30, 1998 (the "CBE Merger Agreement"), (iv) take no action which would
adversely affect or delay the ability of the Company, Parent or any subsidiary
thereof to obtain any necessary approvals, consents or waivers of any
governmental authority required for the transactions contemplated hereby or to
perform its covenants and agreements on a timely basis under this Plan and (v)
take no action that is reasonably likely to have a Material Adverse Effect (as
defined in Section 9.1 hereof) on the Company.
SECTION 2.2. Forbearance by the Company. During the period from the
date of this Plan to the Effective Time, the Company shall not, and shall not
permit any of its subsidiaries, without the prior written consent of Parent, to:
(a) other than in the ordinary course of business consistent with past
practice, make any loan or advance or incur any indebtedness for borrowed money,
assume, guarantee, endorse or otherwise as an accommodation become responsible
for the obligations of any other person;
(b) (i) adjust, split, combine or reclassify any capital
stock;
(ii) make, declare or pay any dividend or make any other
distribution on, or directly or indirectly redeem,
purchase or otherwise acquire, any shares of its
capital stock or any securities or obligations
convertible into or exchangeable for any shares of
its capital stock, except for regular quarterly cash
dividends
7
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both (i) at a rate per share of Company Common Stock
not in excess of $0.25 per share and (ii) having
record dates and payment dates consistent with past
practice, provided, however, that the Company may not
declare regular quarterly cash dividends after
receipt of all regulatory approvals necessary for
consummation (excluding any applicable waiting
periods) of the Merger to the extent that the
Company's shareholders would, after giving effect to
the Merger, be eligible to receive a dividend from
Parent for the same quarter for which the Company did
not declare a dividend as a result of this subsection
2.2(b)(ii), and, except for reductions in income
resulting directly from adjustments specifically made
at Parent's request, may not declare any regular
quarterly cash dividends in any quarter if with
respect to such quarter the amount of the dividend
exceeds the amount of net income for such quarter;
(iii) grant any stock appreciation rights or grant, sell or
issue to any individual, corporation or other person
any right or option to acquire any shares of its
capital stock or securities evidencing a right to
convert into or acquire, any shares of its capital
stock; or
(iv) issue any additional shares of capital stock except
(A) pursuant to the exercise of Company options
outstanding as of the date hereof and on the terms in
effect on the date hereof, or (B) shares issuable
pursuant to the CBE Merger Agreement.
(c) other than in the ordinary course of business consistent with past
practice and pursuant to policies currently in effect, sell, transfer, mortgage,
encumber or otherwise dispose of any of its properties, leases or assets to any
person, or cancel, release or assign any indebtedness of any such person, except
pursuant to contracts or agreements in force as of the date of this Plan which
have been previously provided to Parent;
(d) make any capital expenditures, other than capital expenditures for
data processing conversions pursuant to contracts or agreements in force as of
the date of this Plan which have been previously provided to Parent and capital
expenditures made in the ordinary course of business consistent with past
practice in amounts not exceeding $50,000, individually or $500,000 in the
aggregate;
(e) increase in any manner the compensation or fringe benefits of any
of its employees or directors, or create or institute, or make any payments
pursuant to, any severance plan or package, or pay any pension or retirement
allowance not required by any existing plan or agreement to any such employees
or directors, or become a party to, amend or commit itself to or fund or
otherwise establish any trust or account related to any Employee Plan (as
defined in Section 3.15), with or for the benefit of any employee, other than
general increases in compensation in the ordinary course of business consistent
with past practice not in excess of 5% in any 12-month period, or any
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amendment required by applicable law (provided that any such amendment shall
provide the least increase to cost permitted under such applicable law), or
voluntarily accelerate the vesting of any stock options or other compensation or
benefit;
(f) (i) other than in the ordinary course of business
consistent with past practice in individual amounts
not to exceed $100,000 or $400,000 in the aggregate
or in securities transactions as provided in (f)(ii)
below, make any investment either by contributions to
capital, property transfers, or purchase of any
property or assets of any person, provided that the
Company shall make no acquisition of business
operations, other than with respect to the CBE Merger
Agreement, without Parent's prior consent; or
(ii) other than purchases of direct obligations of the
United States of America with a remaining maturity at
the time of purchase of 3 years or less, purchase or
acquire securities of any type; provided, however,
that, in the case of investment securities, the
Company may purchase (or permit any subsidiary of the
Company to purchase) investment securities if, within
two business days after the Company requests in
writing (which notice shall describe in detail the
investment securities to be purchased and the price
thereof) that Parent consent to the making of any
such purchase, Parent has approved such request in
writing or has not responded in writing to such
request;
(g) enter into or terminate any contract or agreement, or make any
change in any of its leases or contracts, other than with respect to those
involving aggregate payments of less than, or the provision of goods or services
with a market value of less than, $50,000
(h) settle any claim, action or proceeding involving any liability of
the Company or any of its subsidiaries for money damages in excess of $100,000
or material restrictions upon the operations of the Company or any of its
subsidiaries;
(i) except in the ordinary course of business and in amounts less than
$250,000, waive or release any material right or collateral or cancel or
compromise any extension of credit or other debt or claim;
(j) make, renegotiate, renew, increase, extend or purchase any loan,
lease (credit equivalent), advance, credit enhancement or other extension of
credit, or make any commitment in respect of any of the foregoing, except (i)
unsecured loans, advances or commitments in amounts less than $250,000 made in
the ordinary course of business consistent with past practice and made in
conformity with all applicable policies and procedures, (ii) secured loans,
advances or commitments in an amount less than $5,000,000 made in the ordinary
course of business consistent with past practice and made in conformity with all
applicable policies and procedures and (iii) loans or advances as to which the
Company has a legally binding obligation to make such loan or advance
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<PAGE> 15
as of the date hereof and a description of which has been provided by the
Company in writing to Parent prior to the execution of this Plan;
(k) except as contemplated by Section 5.2, change its fiscal year or
its method of accounting as in effect at December 31, 1998, except as required
by changes in generally accepted accounting principles as concurred in by the
Company's independent auditors;
(l) knowingly take any action that would prevent or impede the Merger
from qualifying (i) for "pooling of interests" accounting treatment or (ii) as a
reorganization within the meaning of Section 368 of the Code; provided, however,
that nothing contained herein shall limit the ability of Parent to exercise its
rights under the Stock Option Agreement;
(m) enter into any new activities or lines of business, or cease to
conduct any activities or lines of business that it conducts on the date hereof,
or conduct any business activity not consistent with past practice;
(n) amend its articles of incorporation or its by-laws;
(o) amend or otherwise modify the CBE Merger Agreement; or
(p) agree to, or make any commitment to, take any of the actions
prohibited by this Section 2.2 or any action which would make any of the
representations or warranties of the Company contained in this Plan incorrect or
prevent the Company from performing or cause the Company not to perform its
covenants hereunder.
SECTION 2.3. Cooperation. The Company shall, and the Company shall
cause each of its subsidiaries to, cooperate with Parent in completing the
transactions contemplated hereby including, as set forth in Section 1.4, with
respect to any merger or consolidation of the Company's subsidiaries with
Parent's subsidiaries which the Parent may request and the taking of actions and
giving of notices related thereto and providing such notices as may be required
to terminate those contracts identified by Parent prior to the Effective Time,
which terminations shall be effective on the Effective Date and conditioned upon
the consummation of the Merger. Neither the Company nor any of its subsidiaries
shall take, cause to be taken or agree or make any commitment to take any
action: (i) that would cause any of the representations or warranties of it that
are set forth in Article III hereof not to be true and correct, or (ii) that is
inconsistent with or prohibited by Section 2.1 or Section 2.2.
SECTION 2.4. Conduct of Parent's Business Prior to the Effective Time.
Except as expressly provided in this Plan, during the period from the date of
this Plan to the Effective Time, Parent shall, and shall cause each of its
subsidiaries to, (i) conduct its business in the usual, regular and ordinary
course of business consistent with past practice, (ii) take no action outside of
the ordinary course of business (mergers and acquisitions by Parent shall be
deemed to be in the ordinary course of its business) which would adversely
affect or delay the ability of the Company,
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Parent or any subsidiary thereof to obtain any necessary approvals, consents or
waivers of any governmental authority required for the transactions contemplated
hereby or to perform its covenants and agreements on a timely basis under this
Plan, (iii) take no action that is reasonably likely to have a Material Adverse
Effect on Parent, and (iv) enter into any agreement that would result in a
change in control of Parent without the prior written consent of the Company,
provided however that such consent shall not be required if Parent's Board of
Directors determines, upon receipt of a written opinion of its outside counsel,
that such requirement would result in a breach of its fiduciary duties to the
shareholders of Parent. For purposes of this Section 2.4, change in control
shall mean the occurrence of any of the following events: (A) the acquisition of
ownership by a person, firm or corporation, or a group acting in concert, of
fifty-one percent, or more, of the outstanding Parent Common Stock, (B) a sale
of all or substantially all of the assets of the Parent to any person, firm or
corporation, or (C) a merger or similar transaction between Parent and another
entity if shareholders of Parent do not own a majority of the voting stock of
the corporation surviving the transaction and a majority in value of the total
outstanding stock of such surviving corporation after the transaction . Parent
shall not knowingly take any action that would prevent or impede the Merger from
qualifying for "pooling of interests" accounting treatment or as a
reorganization within the meaning of Section 368 of the Code; provided, however,
that nothing contained herein shall limit the ability of Parent to exercise its
rights under the Stock Option Agreement.
SECTION 2.5. Cooperation of Parent. Parent shall, and Parent shall
cause each of its subsidiaries to, cooperate with the Company in completing the
transactions contemplated hereby and shall not take, cause to be taken or agree
to make any commitment to take any action (i) that is reasonably likely to have
a Material Adverse Effect on Parent, or (ii) that is inconsistent with or
prohibited by Section 2.4.
ARTICLE III. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to Parent, that, except as
specifically disclosed in a letter (the "Company Disclosure Letter") of the
Company delivered to Parent prior to the execution of this Plan (and making
specific reference to the Section of this Plan for which an exception is taken):
SECTION 3.1. Recitals True. The facts set forth in the Recitals of this
Plan with respect to the Company are true and correct.
SECTION 3.2. Capital Stock. All outstanding shares of capital stock of
the Company and its subsidiaries have been duly authorized and validly issued,
are fully paid and non-assessable, except as provided in Wis. Stats. Section
180.0622(2)(b), as judicially interpreted, in the case of Wisconsin - organized
corporations and banks, and Wis. Stats. Section 220.07 in the case of Wisconsin
state banks, and are not subject to any preemptive rights.
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SECTION 3.3. Due Organization. Each subsidiary of the Company is a
corporation or banking organization duly incorporated, validly existing and in
good standing or active status under the laws of the state of its incorporation.
Each of the Company's subsidiaries which is a bank is a member of the Bank
Insurance Fund ("BIF") of the Federal Deposit Insurance Corporation (the "FDIC")
and all of its deposits are subject to assessment by the BIF.
SECTION 3.4. Authority. Each of the Company and its subsidiaries has
the power and authority, and is duly qualified in all jurisdictions (except for
such qualifications the absence of which, in the aggregate, would not have a
Material Adverse Effect on Company) where such qualification is required, to
carry on its business as it is now being conducted and to own all its properties
and assets, and it has all federal, state, local, and foreign governmental
authorizations necessary for it to own or lease its properties and assets and to
carry on its business as it is now being conducted.
SECTION 3.5. Subsidiaries; Significant Investments. The only
subsidiaries of the Company are set forth in the Company Disclosure Letter. All
of the shares of capital stock of each subsidiary of the Company are owned
directly and of record by the Company or a wholly-owned subsidiary of the
Company, in each such case free and clear of all liens, claims, encumbrances and
restrictions on transfer ("Liens") and there are no options or similar rights
with respect to any such capital stock. Neither the Company nor any of its
subsidiaries maintains a liquidation or similar type of account. None of the
Company or any of such subsidiaries owns any equity securities, any security
convertible or exchangeable into an equity security or any rights to acquire any
equity security except those of its subsidiaries as listed in the Company
Disclosure Letter.
SECTION 3.6. Shareholder Approvals.
(a) Subject to the receipt of required shareholder approval of this
Plan, this Plan and the transactions contemplated herein have been duly
authorized by all necessary corporate action of the Company. In addition, the
Company has received the written opinion of Hovde Financial, Inc. to the effect
that the Merger Consideration to be received by the shareholders of the Company
is fair to such shareholders from a financial point of view and has provided a
true and complete copy of such opinion to Parent. Subject to receipt of (i) such
shareholder approval and (ii) the required approvals, consents or waivers of
governmental authorities referred to in Section 6.1(b), this Plan is a valid and
binding agreement of the Company enforceable against it in accordance with its
terms, subject as to enforcement to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating to
or affecting creditors, rights and to general equity principles.
(b) The affirmative vote of a majority of the outstanding shares of
Company Common Stock entitled to vote on this Plan is the only shareholder vote
required for approval of the Plan and consummation of the Merger and the other
transactions contemplated hereby.
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SECTION 3.7. No Violations. The execution, delivery and performance
of this Plan by the Company do not, and the consummation of the transactions
contemplated hereby by the Company and each of its subsidiaries will not,
constitute (a) a breach or violation of, or a default under, any law, rule or
regulation or any judgment, decree, order, governmental permit or license, or
agreement, indenture or instrument of the Company or any subsidiary of the
Company or to which the Company or any of its subsidiaries (or any of their
respective properties) is subject, or enable any person to enjoin the Merger or
the other transactions contemplated hereby, (b) a breach or violation of, or a
default under, the articles of incorporation or by-laws or similar
organizational documents of the Company or any subsidiary of the Company or (c)
a breach or violation of, or a default under (or an event which with due notice
or lapse of time or both would constitute a default under), or result in the
termination of, accelerate the performance required by, or result in the
creation of any lien, pledge, security interest, charge or other encumbrance
upon any of the properties or assets of the Company or any subsidiary of the
Company under, any of the terms, conditions or provisions of any note, bond,
indenture, deed of trust, loan agreement or other agreement, instrument or
obligation to which the Company or any subsidiary of the Company is a party, or
to which any of their respective properties or assets may be bound or affected,
except for such breaches, violations, defaults, rights of termination or
acceleration or liens or encumbrances referred to in clause (c) that would not
individually or in the aggregate have a Material Adverse Effect on the Company.
SECTION 3.8. Consents and Approvals. Except for (a) the filing of
applications and notices, as applicable, with the Federal Reserve Board under
the BHC Act and approval of such applications and notices, (b) the filing of any
required applications or notices with any state or foreign agencies and approval
of such applications and notices (the "State Approvals"), (c) the filing with
the SEC of a joint proxy statement in definitive form relating to the meetings
of the Company's and Parent's shareholders (the "Company Meeting" and "Parent
Meeting," respectively) to be held in connection with this Plan and the
transactions contemplated hereby (the "Joint Proxy Statement") and the
registration statement on Form S-4 (the "S-4") in which the Joint Proxy
Statement will be included as a prospectus, (d) the filing of the Certificate of
Merger with the Michigan Department of Consumer and Industry Services,
Corporation, Securities and Land Development Bureau pursuant to the MBCA and the
Wisconsin Department of Financial Institutions pursuant to the WBCL, (e) 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 Parent Common Stock pursuant to this Plan, and (f) the approval
of this Plan by the requisite vote of the shareholders of the Company, no
consents or approvals of or filings or registrations with any court,
administrative agency or commission or other governmental authority or
instrumentality (each a "Governmental Entity") or with any third party are
necessary in connection with (i) the execution and delivery by the Company of
this Plan and (ii) the consummation by the Company of the Merger and the other
transactions contemplated hereby.
SECTION 3.9. Company Reports.
(a) As of their respective dates, neither the Company's Annual Report
on Form 10-K for the fiscal year ended December 31, 1998, nor any other document
filed by the Company subsequent
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to December 31, 1998 under Section 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934, as amended (the "Securities Exchange Act"), each in the
form (including exhibits) filed with the SEC (collectively, the "Company
Reports"), contained or will contain any untrue statement of a material fact or
omitted or will omit to state a material fact required to be stated therein or
necessary to make the statements made therein, in light of the circumstances
under which they were made, not misleading and the Company Reports complied in
all material respects with the requirements of the Securities Exchange Act. Each
of the consolidated balance sheets contained or incorporated by reference in the
Company Reports (including in each case any related notes and schedules) fairly
presented in all material respects the financial position of the entity or
entities to which it relates as of its date and each of the consolidated
statements of income, consolidated statements of stockholders' equity and
consolidated statements of cash flows, contained or incorporated by reference in
the Company Reports (including in each case any related notes and schedules),
fairly presented in all material respects the results of operations,
stockholders' equity and cash flows, as the case may be, of the entity or
entities to which it relates for the periods set forth therein (subject, in the
case of unaudited interim statements, to normal year-end audit adjustments that
are not material in amount or effect), in each case in accordance with generally
accepted accounting principles consistently applied during the periods involved,
except as may be noted therein.
(b) The Company and each of its subsidiaries have each timely filed
all reports, registrations and statements, together with any amendments required
to be made with respect thereto, that they were required to file since December
31, 1995 with (i) the SEC, (ii) the Federal Reserve Board, (iii) the FDIC, (iv)
the BIF, (vi) any state banking or insurance commission or other regulatory
authority (each, a "State Regulator") (such entities collectively, the
"Regulatory Agencies"), and (vii) the National Association of Securities
Dealers, Inc. and any other self-regulatory organization (an "SRO"), and all
other material reports and statements required to be filed by them since
December 31, 1995, including, without limitation, any report or statement
required to be filed pursuant to the laws, rules or regulations of the United
States, the Regulatory Agencies or any SRO, and have paid all fees and
assessments due and payable in connection therewith.
SECTION 3.10. Absence of Undisclosed Liabilities and Certain Changes
or Events. Since December 31, 1998, the Company and its subsidiaries have
conducted their business only in the ordinary course of business consistent with
past practice and have not incurred any material liability, except in the
ordinary course of their business consistent with past practice. Since December
31, 1998, there has not been any change in the condition (financial or other),
properties, business, results of operations or prospects of the Company or its
subsidiaries which, individually or in the aggregate, has had, or is reasonably
likely to have, a Material Adverse Effect on the Company.
SECTION 3.11. Taxes. All federal, state, local, and foreign tax
returns required to be filed by or on behalf of the Company or any of its
subsidiaries have been timely filed or requests for extensions have been timely
filed and any such extension shall have been granted and not have expired, and
all such filed returns are complete and accurate in all respects. All taxes
shown on such returns have been paid in full or adequate provision has been made
for any such taxes on the
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Company's balance sheet (in accordance with generally accepted accounting
principles). There is no audit examination, deficiency, or refund litigation
with respect to any taxes of the Company or any of its subsidiaries that could
result in a determination. All taxes, interest, additions, and penalties due
with respect to completed and settled examinations or concluded litigation
relating to it have been paid in full or adequate provision has been made for
any such taxes on the Company's balance sheet (in accordance with generally
accepted accounting principles). The Company has 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.
SECTION 3.12. Absence of Claims. As of the date hereof, no
litigation, proceeding or controversy before any court or governmental agency is
pending, and there is no pending claim, action or proceeding against the Company
or any of its subsidiaries, and, to the best of the Company's knowledge after
reasonable inquiry, no such litigation, proceeding, controversy, claim or action
has been threatened or is contemplated, which, in any case, is reasonably
likely, individually or in the aggregate, to have a Material Adverse Effect on
the Company or to hinder or delay consummation of the transactions contemplated
hereby.
SECTION 3.13. Absence of Regulatory Actions. Neither the Company nor
any of its subsidiaries is a party to any cease and desist order, written
agreement or memorandum of understanding with, or a party to any commitment
letter or similar undertaking to, or is subject to any order or directive by, or
is a recipient of any extraordinary supervisory letter from, or has adopted any
board resolutions at the request of, federal or state governmental authorities
charged with the supervision or regulation of depository institutions or
depository institution holding companies or engaged in the insurance of bank
and/or savings and loan deposits ("Government Regulators") nor has it been
advised by any Government Regulator that it is contemplating issuing or
requesting (or is considering the appropriateness of issuing or requesting) any
such order, directive, written agreement, memorandum of understanding,
extraordinary supervisory letter, commitment letter, board resolutions or
similar undertaking.
SECTION 3.14. Agreements.
(a) Except for this Plan and arrangements made in the ordinary course
of business, the Company and its subsidiaries are not bound by any material
contract (as defined in Item 601(b)(10) of Regulation S-K) to be performed after
the date hereof that has not been filed with or incorporated by reference in the
Company Reports filed prior to the date of this Plan. Except as disclosed in the
Company Reports filed prior to the date of this Plan, neither the Company nor
any of its subsidiaries is a party to an oral or written (i) consulting
agreement (other than data processing, software programming and licensing
contracts entered into in the ordinary course of business) not terminable on 30
days, or less notice involving the payment of more than $100,000 per annum, in
the case of any such agreement with an individual, or $200,000 per annum, in the
case of any other such agreement, (ii) agreement with any executive officer or
other key employee of the Company or any of its subsidiaries the benefits of
which are contingent, or the terms of which are materially altered, upon the
occurrence of a transaction involving the Company or any of its subsidiaries of
the nature
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contemplated by this Plan and which provides for the payment of in excess of
$100,000, (iii) agreement with respect to any executive officer of the Company
or any of its subsidiaries providing any term of employment or compensation
guarantee extending for a period longer than one year and for the payment of in
excess of $100,000 per annum, (iv) agreement or plan, including any stock option
plan, stock appreciation rights plan, restricted stock plan or stock purchase
plan, any of the benefits of which will be increased, or the vesting of the
benefits of which will be accelerated, by the occurrence of any of the
transactions contemplated by this Plan or the value of any of the benefits of
which will be calculated on the basis of any of the transactions contemplated by
this Plan, or (v) agreement containing covenants that limit the ability of the
Company or any of its subsidiaries to compete in any line of business or with
any person, or that involve any restriction on the geographic area in which, or
method by which, the Company (including any successor thereof) or any of its
subsidiaries may carry on its business (other than as may be required by law or
any regulatory agency).
(b) Neither the Company nor any of its subsidiaries is in default
under or in violation of any provision of any note, bond, indenture, mortgage,
deed of trust, loan agreement or other agreement to which it is a party or by
which it is bound or to which any of its respective properties or assets is
subject.
SECTION 3.15. Labor Matters. Neither the Company nor any of its
subsidiaries is a party to, or is bound by, any collective bargaining agreement,
contract, or other agreement or understanding with a labor union or labor
organization, nor is the Company or any of its subsidiaries the subject of any
proceeding asserting that it has committed an unfair labor practice or seeking
to compel it or any such subsidiary to bargain with any labor organization as to
wages and conditions of employment, nor is there any strike, other labor dispute
or organizational effort involving the Company or any of its subsidiaries
pending or threatened.
SECTION 3.16. Employee Benefit Plans. The Company Disclosure Letter
contains a complete and correct list of the names and current annual salary or
director fees, as applicable, bonus, commission and perquisite arrangements,
written or unwritten, for each director and officer of the Company and each of
its subsidiaries, including those whose compensation was paid in whole or in
part by persons or entities other than the Company or any of its subsidiaries.
The Company Disclosure Letter also contains a complete list of all pension,
retirement, stock option, stock purchase, stock ownership, savings, stock
appreciation right, profit sharing, deferred compensation, consulting, bonus,
group insurance, severance and other benefit plans, contracts, agreements,
arrangements, including, but not limited to, "employee benefit plans", as
defined in Section 3(3) of the Employee Retirement Income Security Act of 1974,
as amended ("ERISA"), incentive and welfare policies, contracts, plans and
arrangements and all trust agreements related thereto in respect to any present
or former directors, officers, or other employees of the Company or any of its
subsidiaries (hereinafter referred to collectively as the "Employee Plans"). (i)
All of the Employee Plans comply in all material respects with all applicable
requirements of ERISA, the Code and other applicable laws; neither the Company
nor any of its subsidiaries has engaged in a "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Code) with respect to any
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Employee Plan which could subject the Company or any subsidiary to a material
tax or penalty under Section 4975 of the Code or Section 502(i) of ERISA; and
all contributions required to be made under the terms of any Employee Plan have
been timely made or have been reflected on the Company's balance sheet (ii) no
liability to the Pension Benefit Guaranty Corporation (the "PBGC") has been or
is expected by the Company or any of its subsidiaries to be incurred with
respect to any Employee Plan which is subject to Title IV of ERISA (a "Pension
Plan"), or with respect to any single employer plan" (as defined in Section
4001(a)(15) of ERISA) currently or formerly maintained by the Company or any
entity (an "ERISA Affiliate") which is considered one employer with the Company
under Section 4001 of ERISA or Section 414 of the Code (an "ERISA Affiliate
Plan"); and no proceedings have been instituted to terminate any Pension Plan or
ERISA Affiliate Plan and no condition exists that presents a material risk of
the institution of such proceedings; (iii) no Pension Plan or ERISA Affiliate
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 Pension Plan and ERISA Affiliate Plan exceeds the present value of the
"benefit liabilities" (as defined in Section 4001(a)(16) of ERISA) under such
Pension Plan or ERISA Affiliate Plan as of the end of the most recent plan year
with respect to the respective Pension Plan or ERISA Affiliate Plan ending prior
to the date hereof, calculated on the basis of the actuarial assumptions used in
the most recent actuarial valuation for such Pension Plan or ERISA Affiliate
Plan prior to the date hereof, and there has been no material change in the
financial condition of any such Pension Plan or ERISA Affiliate Plan since the
last day of the most recent plan year; and no notice of a "reportable event" (as
defined in Section 4043 of ERISA) for which the 30-day reporting requirement has
not been waived has been required to be filed for any Pension Plan or ERISA
Affiliate Plan within the 12-month period ending on the date hereof; (iv)
neither the Company nor any subsidiary of the Company has provided or is
required to provide, security to any Pension Plan or to any ERISA Affiliate Plan
pursuant to section 401(a)(29) of the Code; (v) neither the Company, its
subsidiaries, nor any ERISA Affiliate has contributed to any "multiemployer
plan", as defined in Section 3(37) of ERISA, on or after September 26, 1980;
(vi) each Employee Plan of the Company or any of its subsidiaries which is an
"employee pension benefit plan" (as defined in Section 3(2) of ERISA) has
received a favorable determination letter from the Internal Revenue Service
deeming such plan (a "Qualified Plan") to be qualified under Section 401(a) of
the Code; and neither the Company nor its subsidiaries are aware of any
circumstances likely to result in revocation of any such favorable determination
letter; (vii) each Qualified Plan which is an "employee stock ownership plan"
(as defined in Section 4975(e)(7) of the Code) has satisfied all of the
applicable requirements of Sections 409 and 4975(e)(7) of the Code and the
regulations thereunder; all Employee Plans covering foreign participants comply
in all material respects with applicable local law , and there are no material
unfunded liabilities with respect to any Employee Plan which covers foreign
employees; (viii) there is no pending or threatened litigation, administrative
action or proceeding relating to any Employee Plan; (ix) there has been no
announcement or commitment by the Company or any subsidiary of the Company to
create an additional Employee Plan, or to amend an Employee Plan except for
amendments required by applicable law which do not increase the cost of such
Employee Plan; and the Company and its subsidiaries do not have any obligations
for retiree health and life benefits under any Employee Plan except as set forth
in the Company Disclosure Letter, and there are no
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such Employee Plans that cannot be amended or terminated without incurring any
liability thereunder; (x) with respect to the Company or any of its
subsidiaries, except as specifically identified in the Company Disclosure
Letter, the execution and delivery of this Plan and the consummation of the
transactions contemplated hereby will not result in any payment or series of
payments by the Company or any subsidiary of the Company to any person which is
an "excess parachute payment" (as defined in Section 280G of the Code) under any
Employee Plan, increase or secure (by way of a trust or other vehicle) any
benefits payable under any Employee Plan, or accelerate the time of payment or
vesting of any such benefit, and (xi) with respect to each Employee Plan, the
Company has supplied to Parent a true and correct copy, if applicable, of (A)
the two most recent annual reports on the applicable form of the Form 5500
series filed with the Internal Revenue Service (the "IRS",), (B) such Employee
Plan, including amendments thereto, (C) each trust agreement and insurance
contract relating to such Employee Plan, including amendments thereto, (D) the
most recent summary plan description for such Employee Plan, including
amendments thereto, if the Employee Plan is subject to Title I of ERISA, (E) the
most recent actuarial report or valuation if such Employee Plan is a Pension
Plan, (F) the most recent determination letter issued by the IRS if such
Employee Plan is a Qualified Plan and (G) the most recent financial statements
and auditor's report.
SECTION 3.17. Properties. Except as disclosed in the Company Reports
filed prior to the date hereof, the Company and its subsidiaries (a) have good,
clear and marketable title to all the properties and assets which are material
to the Company's business on a consolidated basis and are reflected in the
latest audited statement of condition included in the Company Reports as being
owned by the Company and its subsidiaries or acquired after the date thereof
(except properties sold or otherwise disposed of since the date thereof), free
and clear of all Liens except (i) statutory Liens securing payments not yet due,
(ii) Liens on assets of subsidiaries of the Company incurred in the ordinary
course of their business and (iii) such imperfections or irregularities of title
or Liens as do not affect the use of the properties or assets subject thereto or
affected thereby or otherwise materially impair business operations at such
properties, in either case in such a manner as to have a Material Adverse Effect
on the Company, and (b) are collectively the lessee of all leasehold estates
which are material to the Company's business on a consolidated basis and are
reflected in the latest audited financial statements included in the Company
Reports or acquired after the date thereof (except for leases that have expired
by their terms or as to which the Company has agreed to terminate or convey
since the date thereof) and is in possession of the properties purported to be
leased thereunder, and each such lease is valid without default thereunder by
the lessee or, to the Company's knowledge, the lessor, other than defaults that
would not have a Material Adverse Effect on the Company. Each of the Company and
each of its subsidiaries enjoys peaceful and undisturbed possession of all such
leases. To the knowledge of the Company, all of the Company's and its
subsidiaries, owned buildings, structures and equipment have been well
maintained and are in good and serviceable condition, normal wear and tear
excepted.
SECTION 3.18. Knowledge as to Conditions. As of the date hereof, the
Company knows of no reason why the approvals, consents and waivers of
governmental authorities referred to in
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Section 6.1(b) should not be obtained without the imposition of any condition of
the type referred to in the provisos thereto.
SECTION 3.19. Compliance with Laws. Since December 31, 1995, the
Company and each of its subsidiaries have complied in all material respects with
all applicable laws. The Company and each of its subsidiaries has all permits,
licenses, certificates of authority, orders and approvals of, and has made all
filings, applications and registrations with, federal, state, local and foreign
governmental or regulatory bodies that are required in order to permit it to
carry on its business as it is presently conducted; all such permits, licenses,
certificates of authority, orders and approvals are in full force and effect,
and, to the best knowledge of the Company, no suspension or cancellation of any
of them is threatened.
SECTION 3.20. Fees. Other than financial advisory services performed
for the Company by Hovde Financial, Inc., neither the Company nor any of its
subsidiaries, nor any of their respective officers, directors, employees or
agents, has employed any broker or finder or incurred any liability for any
financial advisory fees, brokerage fees, commissions, or finder's fees, and no
broker or finder has acted directly or indirectly for the Company or any
subsidiary of the Company, in connection with the Plan or the transactions
contemplated hereby.
SECTION 3.21. Environmental Matters. To the knowledge of the
Company:
(a) Except as will not, individually or in the aggregate, have a
Material Adverse Effect on the Company, with respect to the
Company and each of its subsidiaries:
(i) Each of the Company and its subsidiaries, the
Participation Facilities, and the Loan Properties
(each as defined below) are, and have been, in
substantial compliance with all Environmental Laws
(as defined below);
(ii) There is no suit, claim, action, demand, executive
or administrative order, directive, investigation
or proceeding pending or threatened, before any
court, governmental agency or board or other forum
against it or any of its subsidiaries or any
Participation Facility (A) for alleged
noncompliance (including by any predecessor) with,
or liability under, any Environmental Law or (B)
relating to the presence of or release into the
environment of any Hazardous Material (as defined
below) or oil, whether or not occurring at or on a
site owned, leased or operated by it or any of its
subsidiaries or any Participation Facility;
(iii) There is no suit, claim, action, demand, executive
or administrative order, directive, investigation
or proceeding pending or threatened,
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before any court, governmental agency or board or
other forum relating to or against any Loan
Property (or the Company or any of its
subsidiaries in respect of such Loan Property) (A)
relating to alleged noncompliance (including by
any predecessor) with, or liability under, any
Environmental Law or (B) relating to the presence
of or release into the environment of any
Hazardous Material or oil whether or not occurring
at or on a site owned, leased or operated by a
Loan Property;
(iv) There is no reasonable basis for any suit, claim,
action, demand, executive or administrative order,
directive or proceeding of a type described in
Section 3.21(a)(ii) or (iii);
(v) The properties currently or formerly owned or
operated by the Company or any of its subsidiaries
(including, without limitation, soil, groundwater
or surface water on, under or adjacent to the
properties, and buildings thereon) do not contain
any Hazardous Material (as defined below) other
than as permitted under applicable Environ mental
Law (provided, however, that with respect to
properties formerly owned or operated by the
Company or any of its subsidiaries, such
representation is limited to the period the
Company or any such subsidiary owned or operated
such properties);
(vi) None of it or any of its subsidiaries has received
any notice, demand letter, executive or
administrative order, directive or request for
information from any Federal, state, local or
foreign governmental entity or any third party
indicating that it may be in violation of, or
liable under, any Environmental Law;
(vii) There are no underground storage tanks on, in or
under any properties or Participation Facility and
no underground storage tanks have been closed or
removed from any properties or Participation
Facility which are or have been in the ownership
of it or any of its subsidiaries;
(viii) During the period of (A) its or any of its
subsidiaries, ownership or operation of any of
their respective current properties, (B) its or
any of its subsidiaries, participation in the
management of any Participation Facility, or (C)
its or any of its subsidiaries, holding of a
security interest in a Loan Property, there has
been no contamination by or release of Hazardous
Material or oil in, on, under or affecting such
properties. Prior to the period of (x) its or any
of its subsidiaries' ownership or operation of any
of their respective current properties, (y) its or
any of its subsidiaries, participation in the
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management of any Participation Facility, or (z)
its or any of its subsidiaries, holding of a
security interest in a Loan Property, there was no
contamination by or release of Hazardous Material
or oil in, on, under or affecting any such
property, Participation Facility or Loan Property;
and
(ix) None of it or its subsidiaries participates in the
management of a Loan Property or Participation
Facility to an extent that it would be deemed an
"owner or operator" as defined in 42 U.S.C. ss.
9601 or any similar Environmental Law.
(b) The following definitions apply for purposes of this Section
3.21: (i) "Loan Property" means any property in which the applicable party (or a
subsidiary of it) holds a security interest, and, where required by the context,
includes the owner or operator of such property, but only with respect to such
property; (ii) "Participation Facility" means any facility in which the
applicable party (or a subsidiary of it) participates in the management
(including all property held as trustee or in any other fiduciary or agency
capacity) and, where required by the context, includes the owner or operator of
such property; (iii) "Environmental Law" means (A) any federal, state or local
law, statute, ordinance, rule, regulation, code, license, permit, authorization,
approval, consent, legal doctrine, order, directive, executive or administrative
order, judgment, decree, injunction, requirement or agreement with any
governmental entity, (x) relating to the protection, preservation or restoration
of the environment (which includes, without limitation, air, water vapor,
surface water, groundwater, drinking water supply, structures, soil, surface
land, subsurface land, plant and animal life or any other natural resource), or
to human health or safety, or (y) the exposure to, or the use, storage,
recycling, treatment, generation, transportation, processing, handling,
labeling, production, release or disposal of, Hazardous Materials, in each case
as amended and as now in effect, including all current Environmental Laws. The
term Environmental Law includes, without limitation, the federal Comprehensive
Environmental Response Compensation and Liability Act of 1980, the Superfund
Amendments and Reauthorization Act, the federal Water Pollution Control Act of
1972, the federal Clean Air Act, the federal Clean Water Act, the federal
Resource Conservation and Recovery Act of 1976 (including the Hazardous and
Solid Waste Amendments thereto), the federal Solid Waste Disposal and the
federal Toxic Substances Control Act, the Federal insecticide, Fungicide and
Rodenticide Act, the Federal occupational Safety and Health Act of 1970, the
Federal Hazardous Materials Transportation Act, or any so called "Superfund" or
"Superlien" law, each as amended and as now or hereafter in effect, and (B) any
common law or equitable doctrine (including, without limitation, injunctive
relief and tort doctrines such as negligence, nuisance, trespass and strict
liability) that may impose liability or obligations for injuries or damages due
to, or threatened as a result of, the presence of or exposure to any Hazardous
Material; and (iv) "Hazardous Material" means any substance in any concentration
which is or could be detrimental to human health or safety or to the
environment, currently or hereafter listed, defined, designated or classified as
hazardous, toxic, radioactive or dangerous, or otherwise regulated, under any
Environmental Law, whether by type or by quantity, including any substance
containing any such substance as a component. Hazardous Material includes,
without limitation, any toxic waste, pollutant, contaminant, hazardous
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substance, toxic substance , hazardous waste, special waste, industrial
substance, oil or petroleum or any derivative or by-product thereof, radon,
radioactive material, asbestos, asbestos-containing material, urea formaldehyde
foam insulation, lead and polychlorinated biphenyl.
SECTION 3.22. Allowance. The allowance for possible loan losses shown
on the Company's audited balance sheet as of December 31, 1998, was, and the
allowance for possible loan losses shown on the balance sheets in Reports for
periods ending after the date of this Plan will be, adequate, as of the date
thereof, under generally accepted accounting principles applicable to banks and
bank holding companies. The Company has disclosed to Parent in writing prior to
the execution hereof and has set forth in the Company Disclosure Letter all
loans, leases, advances, credit enhance ments, other extensions of credit,
commitments and interest-bearing assets of the Company and its subsidiaries,
involving amounts in excess of $100,000, that have been classified as "Other
Loans Specially Mentioned", "Special Mention", "Substandard", "Doubtful",
"Loss", "Classified", "Criticized", "Credit Risk Assets", "Concerned Loans" or
words of similar import and the aggregate amount thereunder of each such
category or type. The Other Real Estate Owned included in any non-performing
assets of the Company or any of its subsidiaries is carried net of reserves at
the lower of cost or market value based on current independent appraisals.
SECTION 3.23. Antitakeover Provisions Inapplicable. The Company has
taken all actions required to exempt this Plan and the Merger and any amendment
or revision thereto, the Stock Option Agreement and any amendment or revision
thereof and the transactions contemplated hereby and thereby from any state
antitakeover laws, including without limitation, Sections 180.1140-1144,
180.1130-1133, and 180.1150.
SECTION 3.24. Material Interests of Certain Persons. Except as
disclosed in the Company's Proxy Statement for its 1999 Annual Meeting of
Stockholders or to the extent such information is not required to be disclosed
therein, no officer or director of the Company, or any "associate" (as such term
is defined in Rule 12b-2 under the Securities Exchange Act) of any such officer
or director, has any material interest in any material contract or property
(real or personal), tangible or intangible, used in or pertaining to the
business of the Company or any of its subsidiaries.
SECTION 3.25. Insurance. The Company and its subsidiaries are
presently insured, and since December 31, 1995, have been insured, for
reasonable amounts with financially sound and reputable insurance companies,
against such risks as companies engaged in a similar business would, in
accordance with good business practice, customarily be insured. All of the
insurance policies and bonds maintained by the Company and its subsidiaries are
in full force and effect, the Company and its subsidiaries are not in default
thereunder and all material claims thereunder have been filed in due and timely
fashion. Since December 31, 1995, no claim by the Company or any of its
subsidiaries on or in respect of an insurance policy or bond has been declined
or refused by the relevant insurer or insurers. In the best judgment of the
Company's management, such insurance coverage is adequate and will be available
in the future under terms and conditions substantially similar to those in
effect on the date hereof. Between the date hereof and the Effective Time, the
Company and its subsidiaries will maintain the levels of insurance coverage in
effect on the date hereof and will
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submit all potential claims existing prior to the Effective Time to its
insurance carrier on or before the Effective Time. The Company Disclosure Letter
lists all insurance policies maintained by or for the benefit of the Company, of
its subsidiaries or its directors, officers, employees or agents, specifying the
(i) type of policy and a brief description thereof, (ii) policy limits and (iii)
self insurance amounts.
SECTION 3.26. Investment Securities. Except for pledges to the
Federal Home Loan Bank in the ordinary course of business consistent with past
practice and except for pledges to secure public and trust deposits and reverse
repurchase agreements entered into in arm's-length transactions pursuant to
normal commercial terms and conditions and other pledges required by law, none
of the investments reflected in the consolidated balance sheet of the Company
included in the Company's Report on Form 10-K for the year ended December 31,
1998, and none of the material investments made by it or any of its subsidiaries
since December 31, 1998, is subject to any restriction (contractual, statutory
or otherwise) that would materially impair the ability of the entity holding
such investment freely to dispose of such investment at any time.
SECTION 3.27. Pooling of Interests. Each of the Company's
acquisitions during the two years preceding the date of this Plan which were
accounted for as "pooling of interests" qualify as "pooling of interests" for
accounting purposes. As of the date of this Plan, the Company has no reason to
believe that the Merger will not qualify as a "pooling of interests" for
accounting purposes.
SECTION 3.28. Derivatives. Neither the Company nor any of its
subsidiaries is currently a party to any interest rate swap, cap, floor, option
agreement, other interest rate risk management arrangement or agreement or
derivative-type security or derivative arrangement or agreement.
SECTION 3.29. Registration Obligations. Neither the Company nor any
of its subsidiaries is under any obligation, contingent or otherwise, to
register any of its securities under the Securities Act.
SECTION 3.30. Books and Records. The books and records of the Company
and its subsidiaries have been, and are being, maintained in accordance with
applicable legal and accounting requirements and reflect in all material
respects the substance of events and transactions that should be included
therein.
SECTION 3.31. Corporate Documents. The Company has delivered to
Parent true and complete copies of (i) its articles of incorporation and by-laws
and (ii) the charter and by-laws of each subsidiary of the Company. The Company
has delivered to Parent copies of the charter of each subsidiary of the Company
which in each instance is accurate and complete in all material respects.
SECTION 3.32. Company Action. The Board of Directors of the Company
has adopted resolutions recommending that this Plan be approved by the
shareholders of the Company and directing that this Plan be submitted for
consideration by the Company's shareholders at the Company Meeting.
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SECTION 3.33. Indemnification. Neither the Company nor any subsidiary
of the Company is a party to any indemnification agreement with any of its
present or future directors, officers, employees, agents or other persons who
serve or served in any other capacity with any other enterprise at the request
of the Company or a subsidiary of the Company (a "Covered Person"), and to the
best knowledge of the Company, there are no claims for which any Covered Person
would be entitled to indemnification under Section 5.6 if such provisions were
deemed to be in effect.
SECTION 3.34. Fair Lending; Community Reinvestment Act. As of the date
hereof, with the exception of routine investigation of consumer complaints,
neither the Company nor any of its subsidiaries has been advised that it is or
may be in violation of the Equal Credit Opportunity Act or the Fair Housing Act
or any similar federal or state statute. Each of the Company's subsidiaries
received a CRA rating of "satisfactory" or "outstanding" in its most recent CRA
examination.
SECTION 3.35. Other Activities of the Company and its Subsidiaries.
(a) Neither of the Company nor any of its subsidiaries that is
not a bank, a bank operating subsidiary or a bank service corporation,
directly or indirectly, engages in any activity prohibited by the
Federal Reserve Board. Without limiting the generality of the
foregoing, any equity investment of the Company and each subsidiary
that is not a bank, a bank operating subsidiary or a bank service
corporation, is not prohibited by the Federal Reserve Board.
(b) To the Company's knowledge, each of its subsidiaries which is
a bank that performs trust or other fiduciary activities (a "Company
Bank Subsidiary") and each subsidiary which is a trust company (a
"Company Trust Subsidiary") currently performs all personal trust,
corporate trust and other fiduciary activities ("Trust Activities")
with requisite authority under applicable law of Governmental Entities
and in accordance in all material respects with the agreed-upon terms
of the agreements and instruments governing such Trust Activities,
sound fiduciary principles and applicable law and regulation
(specifically including, but not limited to, Section 9 of Title 12 of
the Code of Federal Regulations); there is no investigation or inquiry
by any Governmental Entity pending, or to the knowledge of the Company,
threatened, against or affecting the Company, or any Significant
Subsidiary thereof relating to the compliance by the Company or any
such Significant Subsidiary (as such term is defined in Rule 1-02(w) of
Regulation S-X of the SEC) with sound fiduciary principles and
applicable regulations; and except where any such failure would not
have a Material Adverse Effect on the Company, each employee of a
Company Bank Subsidiary or a Company Trust Subsidiary, as applicable,
had the authority to act in the capacity in which he or she acted with
respect to Trust Activities, in each case, in which such employee held
himself or herself out as a representative of a Company Bank Subsidiary
or a Company Trust Subsidiary, as applicable; and each Company Bank
Subsidiary and each Company Trust Subsidiary has established policies
and procedures for the purpose of complying with applicable laws of
Governmental Entities relating to Trust Activities, has followed such
policies and procedures in all material respects and has performed
appropriate internal audit
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reviews of, and has engaged independent accountants to perform audits
of, Trust Activities, which audits in the case of any Company Bank
Subsidiary since January 1, 1996, and in the case of any Company Trust
Subsidiary since January 1, 1998 have disclosed no material violations
of applicable laws of Governmental Entities or such policies and
procedures.
SECTION 3.36. Year 2000. None of the Company or any of the Company's
subsidiaries has received, or reasonably expects to receive, a "Year 2000
Deficiency Notification Letter" (as such term is employed in the Federal
Reserve's Supervision and Regulation Letter No. SR 98-3(SUP), dated March 4,
1998). The Company has disclosed to Parent a complete and accurate copy of the
Company's plan, including an estimate of the anticipated associated costs, for
addressing the issues ("Year 2000 Issues") set forth in the statement of the
Federal Financial Institutions Examination Council, dated May 5, 1997, entitled
"Year 2000 Project Management Awareness," and December 1997, entitled "Safety
and Soundness Guidelines Concerning the Year 2000 Business Risk," as such issues
affect the Company and its subsidiaries. Between the date of this Agreement and
the Effective Time, the Company shall use commercially practicable efforts to
implement such plan.
SECTION 3.37. No Omission of Material Fact. No representation or
warranty by the Company in this Plan or under any documents, instruments,
certificates or schedules delivered or to be delivered pursuant hereto or in
connection with the transactions contemplated hereby contains any untrue
statement of material fact, or omits to state a material fact necessary to make
the statements or facts contained herein or therein not misleading. None of the
information regarding the Company or any of its subsidiaries or the transactions
contemplated hereby supplied or to be supplied by the Company or any of its
subsidiaries for inclusion in any documents or filings to be filed with any
regulatory authority in connection with the transactions contemplated hereby
will contain any untrue statement of material fact, or omit to state a material
fact necessary to make the statements or facts contained therein not misleading.
SECTION 3.38. Conduct of Business. Since December 31, 1998, except as
contemplated by this Plan, neither the Company nor any of its subsidiaries has
taken any action which would have violated Section 2.1 or Section 2.2 had such
Sections been in effect since December 31, 1998. The Company has not purchased
or caused to be purchased any Company Common Stock since April 1, 1997.
ARTICLE IV. REPRESENTATIONS AND WARRANTIES OF PARENT
Parent represents and warrants to the Company that, except as
specifically disclosed in a letter (the "Parent Disclosure Letter") of Parent
delivered to the Company prior to the execution of this Plan (and making
specific references to the section of this Plan for which an exception is
taken):
SECTION 4.1. Recitals True. The facts set forth in the Recitals of
this Plan with respect to Parent true and correct.
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SECTION 4.2. Capital Stock. All outstanding shares of capital stock
of Parent and its subsidiaries have been and all Parent Shares to be issued in
the Merger will be duly authorized and validly issued, are fully paid and
nonassessable and are not subject to any preemptive rights. Each share of Parent
Common Stock to be issued in the Merger will have attached thereto one right to
purchase one-half of 1/100th of a share of Series A Preferred Stock of Parent at
a price of $75 per 1/100th of a share.
SECTION 4.3. Due Organization. Each subsidiary of Parent is a
corporation or banking organization duly incorporated, validly existing and in
good standing under the laws of the state of its incorporation. Each of the
Parent's subsidiaries which is a bank is a member of the Bank Insurance Fund
("BIF") of the Federal Deposit Insurance Corporation (the "FDIC") and all of its
deposits are subject to assessment by the BIF.
SECTION 4.4. Authority. Each of Parent and its subsidiaries has the
power and authority, and is duly qualified in all jurisdictions (except for such
qualifications the absence of which, in the aggregate, the would not have a
Material Adverse Effect on Parent) where such qualification is required, to
carry on its business as it is now being conducted and to own all its properties
and assets, and it has all federal, state, local, and foreign governmental
authorizations necessary for it to own or lease its properties and assets and to
carry on its business as it is now being conducted.
SECTION 4.5. Subsidiaries; Significant Investments. The only
subsidiaries of Parent are set forth in the Disclosure Letter. All of the shares
of capital stock of each subsidiary of Parent are owned directly and of record
by Parent or a wholly-owned subsidiary of Parent, in each such case free and
clear of all Liens and there are no options or similar rights with respect to
any such capital stock. Neither Parent nor any of its subsidiaries maintains a
liquidation or similar type of account. None of Parent or any of such
subsidiaries owns any equity securities, any security convertible or
exchangeable into an equity security or any rights to acquire any equity
security except those of its subsidiaries as listed in the Parent Disclosure
Letter.
SECTION 4.6. Shareholder Approvals.
(a) Subject to the receipt of required shareholder approval of this
Plan, this Plan and the transactions contemplated herein have been duly
authorized by all necessary corporate action of Parent. In addition, Parent has
received the written opinion of Keefe, Bruyette & Woods, Inc. to the effect that
the Merger is fair to the shareholders of Parent from a financial point of view
and has provided a true and complete copy of such opinion to the Company.
Subject to receipt of (i) such shareholder approval and (ii) the required
approvals, consents or waivers of governmental authorities referred to in
Section 6.1(b), this Plan is a valid and binding agreement of Parent enforceable
against it in accordance with its terms, subject as to enforcement to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors, rights
and to general equity principles.
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(b) The affirmative vote of a majority of the outstanding shares of
Parent Common Stock entitled to vote on this Plan is the only shareholder vote
required for approval of the Plan and consummation of the Merger and the other
transactions contemplated hereby.
SECTION 4.7. No Violations. The execution, delivery and performance
of this Plan by Parent do not, and the consummation of the transactions
contemplated hereby by Parent and each of its subsidiaries will not, constitute
(i) a breach or violation of, or a default under, any law, rule or regulation or
any judgment, decree, order, governmental permit or license, or agreement,
indenture or instrument of Parent or any subsidiary of Parent or to which Parent
or any of its subsidiaries (or any of their respective properties) is subject,
or enable any person to enjoin the Merger or the other transactions contemplated
hereby, (ii) a breach or violation of, or a default under, the articles of
incorporation or by-laws or similar organizational documents of Parent or any
subsidiary of Parent or (iii) a breach or violation of, or a default under (or
an event which with due notice or lapse of time or both would constitute a
default under), or result in the termination of, accelerate the performance
required by, or result in the creation of any lien, pledge, security interest,
charge or other encumbrance upon any of the properties or assets of Parent or
any subsidiary of Parent under, any of the terms, conditions or provisions of
any note, bond, indenture, deed of trust, loan agreement or other agreement,
instrument or obligation to which Parent or any subsidiary of Parent is a party,
or to which any of their respective properties or assets may be bound or
affected, except for such breaches, violations, defaults, rights of termination
or acceleration or liens or encumbrances referred to in clause (iii) that would
not individually or in the aggregate have a Material Adverse Effect on Parent.
SECTION 4.8. Consents and Approvals. Except for (a) the filing of
applications and notices, as applicable, with the Federal Reserve Board under
the BHC Act and approval of such applications and notices, (b) any State
Approvals, (c) the filing with the SEC of the Joint Proxy Statement and the S-4
in which the Joint Proxy Statement will be included as a prospectus, (d) the
filing of the Certificate of Merger with the Michigan Department of Consumer and
Industry Services, Corporation, Securities and Land Development Bureau pursuant
to the MBCA and Wisconsin Department of Financial Institutions pursuant to the
WBCL, (e) 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 Parent Common Stock pursuant to this Plan, and (f) the
approval of this Plan by the requisite vote of the shareholders of the Company
and the Parent, no consents or approvals of or filings or registrations with any
Governmental Entities or with any third party are necessary in connection with
(i) the execution and delivery by Parent of this Plan and (ii) the consummation
by Parent of the Merger and the other transactions contemplated hereby.
SECTION 4.9. Parent Reports.
(a) As of their respective dates, neither Parent's Annual Report on
Form 10-K for the fiscal year ended December 31, 1998, nor any other document
filed by Parent subsequent to December 31, 1998 under Section 13(a), 13(c), 14
or 15(d) of the Securities Exchange Act, each in the form (including exhibits)
filed with the SEC (collectively, the "Parent Reports"), contained or
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will contain any untrue statement of a material fact or omitted or will omit to
state a material fact required to be stated therein or necessary to make the
statements made therein, in light of the circumstances under which they were
made, not misleading and the Parent Reports complied in all material respects
with the requirements of the Securities Exchange Act. Each of the consolidated
balance sheets contained or incorporated by reference in the Parent Reports
(including in each case any related notes and schedules) fairly presented in all
material respects the financial position of the entity or entities to which it
relates as of its date and each of the consolidated statements of income,
consolidated statements of stockholders' equity and consolidated statements of
cash flows, contained or incorporated by reference in the Parent Reports
(including in each case any related notes and schedules), fairly presented in
all material respects the results of operations, stockholders' equity and cash
flows, as the case may be, of the entity or entities to which it relates for the
periods set forth therein (subject, in the case of unaudited interim statements,
to normal year-end audit adjustments that are not material in amount or effect),
in each case in accordance with generally accepted accounting principles
consistently applied during the periods involved, except as may be noted
therein.
(b) Parent and each of its subsidiaries have each timely filed all
reports, registrations and statements, together with any amendments required to
be made with respect thereto, that they were required to file since December 31,
1995 with (i) the Regulatory Agencies, and (ii) any SRO, and all other material
reports and statements required to be filed by them since December 31, 1995,
including, without limitation, any report or statement required to be filed
pursuant to the laws, rules or regulations of the United States, the Regulatory
Agencies or any SRO, and have paid all fees and assessments due and payable in
connection therewith.
SECTION 4.10. Absence of Undisclosed Liabilities and Certain Changes
or Events. Since December 31, 1998, Parent and its subsidiaries have conducted
their business only in the ordinary course of business consistent with past
practice and have not incurred any material liability, except in the ordinary
course of their business consistent with past practice. Since December 31, 1998,
there has not been any change in the condition (financial or other), properties,
business, results of operations or prospects of Parent or its subsidiaries
which, individually or in the aggregate, has had, or is reasonably likely to
have, a Material Adverse Effect on Parent.
SECTION 4.11. Taxes. All federal, state, local, and foreign tax
returns required to be filed by or on behalf of Parent or any of its
subsidiaries have been timely filed or requests for extensions have been timely
filed and any such extension shall have been granted and not have expired, and
all such filed returns are complete and accurate in all respects. All taxes
shown on such returns have been paid in full or adequate provision has been made
for any such taxes on Parent's balance sheet (in accordance with generally
accepted accounting principles). There is no audit examination, deficiency, or
refund litigation with respect to any taxes of Parent or any of its subsidiaries
that could result in a determination. All taxes, interest, additions, and
penalties due with respect to completed and settled examinations or concluded
litigation relating to it have been paid in full or adequate provision has been
made for any such taxes on Parent's balance sheet (in accordance with generally
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accepted accounting principles). Parent has 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.
SECTION 4.12. Absence of Claims. As of the date hereof, no litigation,
proceeding or controversy before any court or governmental agency is pending,
and there is no pending claim, action or proceeding against Parent or any of its
subsidiaries, and, to the best of Parent's knowledge after reasonable inquiry,
no such litigation, proceeding, controversy, claim or action has been threatened
or is contemplated, which, in any case, is reasonably likely, individually or in
the aggregate, to have a Material Adverse Effect on Parent or to hinder or delay
consummation of the transactions contemplated hereby.
SECTION 4.13. Absence of Regulatory Actions. Neither Parent nor any of
its subsidiaries is a party to any cease and desist order, written agreement or
memorandum of understanding with, or a party to any commitment letter or similar
undertaking to, or is subject to any order or directive by, or is a recipient of
any extraordinary supervisory letter from, or has adopted any board resolutions
at the request of Government Regulators nor has it been advised by any
Government Regulator that it is contemplating issuing or requesting (or is
considering the appropriateness of issuing or requesting) any such order,
directive, written agreement, memorandum of understanding, extraordinary
supervisory letter, commitment letter, board resolutions or similar undertaking.
SECTION 4.14. Agreements.
(a) Except for this Plan and arrangements made in the ordinary course
of business, Parent and its subsidiaries are not bound by any material contract
(as defined in Item 601(b)(10) of Regulation S-K) to be performed after the date
hereof that has not been filed with or incorporated by reference in the Parent
Reports filed prior to the date of this Plan.
(b) Neither Parent nor any of its subsidiaries is in default under or
in violation of any provision of any note, bond, indenture, mortgage, deed of
trust, loan agreement or other agreement to which it is a party or by which it
is bound or to which any of its respective properties or assets is subject.
SECTION 4.15. Labor Matters. Neither Parent nor any of its
subsidiaries is a party to, or is bound by, any collective bargaining agreement,
contract, or other agreement or understanding with a labor union or labor
organization, nor is Parent or any of its subsidiaries the subject of any
proceeding asserting that it has committed an unfair labor practice or seeking
to compel it or any such subsidiary to bargain with any labor organization as to
wages and conditions of employment, nor is there any strike, other labor dispute
or organizational effort involving Parent or any of its subsidiaries pending or
threatened.
SECTION 4.16. Employee Benefit Plans. Parent's Disclosure Letter
contains a complete and correct list of the names of each director and officer
of Parent and each of its subsidiaries. Parent's Disclosure Letter also contains
a complete list of all Parent's pension, retirement, stock
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option, stock purchase, stock ownership, savings, stock appreciation right,
profit sharing, deferred compensation, consulting, bonus, group insurance,
severance and other benefit plans, contracts, agreements, arrangements,
including, but not limited to, "employee benefit plans", as defined under ERISA,
incentive and welfare policies, contracts, plans and arrangements and all trust
agreements related thereto in respect to any present directors, officers, or
other employees of Parent or any of its subsidiaries (hereinafter referred to
collectively as the "Parent Employee Plans"). (i) All of Parent's Employee Plans
comply in all material respects with all applicable requirements of ERISA, the
Code and other applicable laws; neither Parent nor any of its subsidiaries has
engaged in a "prohibited transaction" (as defined in Section 406 of ERISA or
Section 4975 of the Code) with respect to any Parent Employee Plan which could
subject Parent or any subsidiary to a material tax or penalty under Section 4975
of the Code or Section 502(i) of ERISA; and all contributions required to be
made under the terms of any Parent Employee Plan have been timely made or have
been reflected on Parent's balance sheet (ii) no liability to the PBGC has been
or is expected by Parent or any of its subsidiaries to be incurred with respect
to any Parent Employee Plan which is subject to Title IV of ERISA (a "Parent
Pension Plan"), or with respect to any "single employer plan" (as defined in
Section 4001(a)(15) of ERISA) currently or formerly maintained by Parent or any
entity (an "ERISA Affiliate") which is considered one employer with Parent under
Section 4001 of ERISA or Section 414 of the Code (an "ERISA Affiliate Plan");
and no proceedings have been instituted to terminate any Parent Pension Plan or
ERISA Affiliate Plan and no condition exists that presents a material risk of
the institution of such proceedings; (iii) no Parent Pension Plan or ERISA
Affiliate 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 Parent Pension Plan and ERISA Affiliate Plan exceeds the present
value of the "benefit liabilities" (as defined in Section 4001(a)(16) of ERISA)
under such Parent Pension Plan or ERISA Affiliate Plan as of the end of the most
recent plan year with respect to the respective Parent Pension Plan or ERISA
Affiliate Plan ending prior to the date hereof, calculated on the basis of the
actuarial assumptions used in the most recent actuarial valuation for such
Parent Pension Plan or ERISA Affiliate Plan prior to the date hereof, and there
has been no material change in the financial condition of any such Parent
Pension Plan or ERISA Affiliate Plan since the last day of the most recent plan
year; and no notice of a "reportable event" (as defined in Section 4043 of
ERISA) for which the 30-day reporting requirement has not been waived has been
required to be filed for any Parent Pension Plan or ERISA Affiliate Plan within
the 12-month period ending on the date hereof; (iv) neither Parent nor any
subsidiary of Parent has provided or is required to provide, security to any
Parent Pension Plan or to any ERISA Affiliate Plan pursuant to section
401(a)(29) of the Code; (v) neither Parent, its subsidiaries, nor any ERISA
Affiliate has contributed to any "multiemployer plan", as defined in Section
3(37) of ERISA, on or after September 26, 1980; (vi) each Parent Employee Plan
of Parent or any of its subsidiaries which is an "employee pension benefit plan"
(as defined in Section 3(2) of ERISA) has received a favorable determination
letter from the Internal Revenue Service deeming such plan (a "Qualified Parent
Plan") to be qualified under Section 401(a) of the Code; and neither Parent nor
its subsidiaries are aware of any circumstances likely to result in revocation
of any such favorable determination letter; (vii) each Qualified Parent Plan
which is an "employee stock ownership plan" (as defined in Section 4975(e)(7) of
the Code) has satisfied all of the applicable requirements of Sections 409 and
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4975(e)(7) of the Code and the regulations thereunder; all Parent Employee Plans
covering foreign participants comply in all material respects with applicable
local law , and there are no material unfunded liabilities with respect to any
Parent Employee Plan which covers foreign employees; (viii) there is no pending
or threatened litigation, administrative action or proceeding relating to any
Parent Employee Plan; (ix) there has been no announcement or commitment by
Parent or any subsidiary of Parent to create an additional Parent Employee Plan,
or to amend an Parent Employee Plan except for amendments required by applicable
law which do not increase the cost of such Parent Employee Plan; and Parent and
its subsidiaries do not have any obligations for retiree health and life
benefits under any Parent Employee Plan which would have a Material Adverse
Effect on Parent.
SECTION 4.17. Properties. Except as disclosed in the Parent Reports
filed prior to the date hereof, Parent and its subsidiaries (a) have good, clear
and marketable title to all the properties and assets which are material to
Parent's business on a consolidated basis and are reflected in the latest
audited statement of condition included in the Parent Reports as being owned by
Parent and its subsidiaries or acquired after the date thereof (except
properties sold or otherwise disposed of since the date thereof), free and clear
of all Liens except (i) statutory Liens securing payments not yet due, (ii)
Liens on assets of subsidiaries of Parent incurred in the ordinary course of
their business and (iii) such imperfections or irregularities of title or Liens
as do not affect the use of the properties or assets subject thereto or affected
thereby or otherwise materially impair business operations at such properties,
in either case in such a manner as to have a Material Adverse Effect on Parent,
and (b) are collectively the lessee of all leasehold estates which are material
to Parent's business on a consolidated basis and are reflected in the latest
audited financial statements included in the Parent Reports or acquired after
the date thereof (except for leases that have expired by their terms or as to
which Parent has agreed to terminate or convey since the date thereof) and is in
possession of the properties purported to be leased thereunder, and each such
lease is valid without default thereunder by the lessee or, to Parent's
knowledge, the lessor, other than defaults that would not have a Material
Adverse Effect on Parent. Each of Parent and each of its subsidiaries enjoys
peaceful and undisturbed possession of all such leases. To the knowledge of
Parent, all of Parent's and its subsidiaries, owned buildings, structures and
equipment have been well maintained and are in good and serviceable condition,
normal wear and tear excepted.
SECTION 4.18. Knowledge as to Conditions. As of the date hereof,
Parent knows of no reason why the approvals, consents and waivers of
governmental authorities referred to in Section 6.1(b) should not be obtained
without the imposition of any condition of the type referred to in the provisos
thereto.
SECTION 4.19. Compliance with Laws. Since December 31, 1995, Parent
and each of its subsidiaries have complied in all material respects with all
applicable laws. Parent and each of its subsidiaries has all permits, licenses,
certificates of authority, orders and approvals of, and has made all filings,
applications and registrations with, federal, state, local and foreign
governmental or regulatory bodies that are required in order to permit it to
carry on its business as it is presently conducted; all such permits, licenses,
certificates of authority, orders and approvals are in full force
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and effect, and, to the best knowledge of Parent, no suspension or cancellation
of any of them is threatened.
SECTION 4.20. Fees. Other than financial advisory services performed
for Parent by Keefe, Bruyette & Woods, Inc., neither Parent nor any of its
subsidiaries, nor any of their respective officers, directors, employees or
agents, has employed any broker or finder or incurred any liability for any
financial advisory fees, brokerage fees, commissions, or finder's fees, and no
broker or finder has acted directly or indirectly for Parent or any subsidiary
of Parent, in connection with the Plan or the transactions contemplated hereby.
SECTION 4.21. Environmental Matters. To the knowledge of Parent:
(a) Except as will not, individually or in the aggregate, have a
Material Adverse Effect on Parent, with respect to Parent and
each of its subsidiaries:
(i) Each of Parent and its subsidiaries, the Participation
Facilities, and the Loan Properties (each as defined
below) are, and have been, in substantial compliance
with all Environmental Laws (as defined below);
(ii) There is no suit, claim, action, demand, executive or
administrative order, directive, investigation or
proceeding pending or threatened, before any court,
governmental agency or board or other forum against it
or any of its subsidiaries or any Participation
Facility (A) for alleged noncompliance (including by
any predecessor) with, or liability under, any
Environmental Law or (B) relating to the presence of
or release into the environment of any Hazardous
Material (as defined below) or oil, whether or not
occurring at or on a site owned, leased or operated by
it or any of its subsidiaries or any Participation
Facility;
(iii) There is no suit, claim, action, demand, executive or
administrative order, directive, investigation or
proceeding pending or threatened, before any court,
governmental agency or board or other forum relating
to or against any Loan Property (or Parent or any of
its subsidiaries in respect of such Loan Property) (A)
relating to alleged noncompliance (including by any
predecessor) with, or liability under, any
Environmental Law or (B) relating to the presence of
or release into the environment of any Hazardous
Material or oil whether or not occurring at or on a
site owned, leased or operated by a Loan Property;
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(iv) There is no reasonable basis for any suit, claim,
action, demand, executive or administrative order,
directive or proceeding of a type described in Section
3.21(a)(ii) or (iii);
(v) The properties currently or formerly owned or operated
by Parent or any of its subsidiaries (including,
without limitation, soil, groundwater or surface water
on, under or adjacent to the properties, and buildings
thereon) do not contain any Hazardous Material (as
defined below) other than as permitted under
applicable Environmental Law (provided, however, that
with respect to properties formerly owned or operated
by Parent or any of its subsidiaries, such
representation is limited to the period Parent or any
such subsidiary owned or operated such properties);
(vi) None of it or any of its subsidiaries has received any
notice, demand letter, executive or administrative
order, directive or request for information from any
Federal, state, local or foreign governmental entity
or any third party indicating that it may be in
violation of, or liable under, any Environmental Law;
(vii) There are no underground storage tanks on, in or under
any properties or Participation Facility and no
underground storage tanks have been closed or removed
from any properties or Participation Facility which
are or have been in the ownership of it or any of its
subsidiaries;
(viii) During the period of (A) its or any of its
subsidiaries, ownership or operation of any of their
respective current properties, (B) its or any of its
subsidiaries, participation in the management of any
Participation Facility, or (C) its or any of its
subsidiaries, holding of a security interest in a Loan
Property, there has been no contamination by or
release of Hazardous Material or oil in, on, under or
affecting such properties. Prior to the period of (x)
its or any of its subsidiaries' ownership or operation
of any of their respective current properties, (y) its
or any of its subsidiaries, participation in the
management of any Participation Facility, or (z) its
or any of its subsidiaries, holding of a security
interest in a Loan Property, there was no
contamination by or release of Hazardous Material or
oil in, on, under or affecting any such property,
Participation Facility or Loan Property; and
(ix) None of it or its subsidiaries participates in the
management of a Loan Property or Participation
Facility to an extent that it would be
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deemed an "owner or operator" as defined in 42 U.S.C.
ss. 9601 or any similar Environmental Law.
(b) The following definitions apply for purposes of this Section 4.21:
"Loan Property," "Participation Facility," "Environmental Law," and "Hazardous
Material" each have the meaning set forth in Section 3.21(b).
SECTION 4.22. Allowance. The allowance for possible loan losses shown
on Parent's audited balance sheet as of December 31, 1998 was, and the allowance
for possible loan losses shown on the balance sheets in the Parent Reports for
periods ending after the date of this Plan will be, adequate, as of the date
thereof, under generally accepted accounting principles applicable to banks and
bank holding companies. Parent has disclosed to the Company in writing prior to
the execution hereof and has set forth in the Parent Disclosure Letter all
loans, leases, advances, credit enhance ments, other extensions of credit,
commitments and interest-bearing assets of Parent and its subsid iaries that
have been classified as "Other Loans Specially Mentioned", "Special Mention",
"Substandard", "Doubtful", "Loss", "Classified", "Criticized", "Credit Risk
Assets", "Concerned Loans" or words of similar import and the aggregate amount
thereunder of each such category or type. The Other Real Estate Owned included
in any non-performing assets of Parent or any of its subsidiaries is carried net
of reserves at the lower of cost or market value based on current independent
appraisals.
SECTION 4.23. Material Interests of Certain Persons. Except as
disclosed in Parent's Proxy Statement for its 1999 Annual Meeting of
Stockholders or to the extent such information is not required to be disclosed
therein, no officer or director of Parent, or any "associate" (as such term is
defined in Rule 12b-2 under the Securities Exchange Act) of any such officer or
director, has any material interest in any material contract or property (real
or personal), tangible or intangible, used in or pertaining to the business of
Parent or any of its subsidiaries.
SECTION 4.24. Insurance. Parent and its subsidiaries are presently
insured, and since December 31, 1995, have been insured, for reasonable amounts
with financially sound and reputable insurance companies, against such risks as
companies engaged in a similar business would, in accordance with good business
practice, customarily be insured. All of the insurance policies and bonds
maintained by Parent and its subsidiaries are in full force and effect, Parent
and its subsidiaries are not in default thereunder and all material claims
thereunder have been filed in due and timely fashion. Since December 31, 1995,
no claim by Parent or any of its subsidiaries on or in respect of an insurance
policy or bond has been declined or refused by the relevant insurer or insurers.
In the best judgment of Parent's management, such insurance coverage is adequate
and will be available in the future under terms and conditions substantially
similar to those in effect on the date hereof. Between the date hereof and the
Effective Time, Parent and its subsidiaries will maintain the levels of
insurance coverage in effect on the date hereof. The Parent Disclosure Letter
lists all insurance policies maintained by or for the benefit of Parent, of its
subsidiaries or its directors, officers, employees or agents, specifying the (i)
type of policy and a brief description thereof, (ii) policy limits and (iii)
self insurance amounts.
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SECTION 4.25. Investment Securities. Except for pledges to secure
public and trust deposits and reverse repurchase agreements entered into in
arm's-length transactions pursuant to normal commercial terms and conditions and
other pledges required by law, none of the investments reflected in the
consolidated balance sheet of Parent included in Parent's Report on Form 10-K
for the year ended December 31, 1998, and none of the material investments made
by it or any of its subsidiaries since December 31, 1998, is subject to any
restriction (contractual, statutory or otherwise) that would materially impair
the ability of the entity holding such investment freely to dispose of such
investment at any time.
SECTION 4.26. Pooling of Interests. Each of Parent's acquisitions
during the two years preceding the date of this Plan which were accounted for as
"pooling of interests" qualify as "pooling of interests" for accounting
purposes. As of the date of this Plan, Parent has no reason to believe that the
Merger will not qualify as a "pooling of interests" for accounting purposes.
SECTION 4.27. Derivatives. Neither Parent nor any of its subsidiaries
is currently a party to any interest rate swap, cap, floor, option agreement,
other interest rate risk management arrangement or agreement or derivative-type
security or derivative arrangement or agreement.
SECTION 4.28. Registration Obligations. Except as contemplated by the
terms of this Plan, neither Parent nor any of its subsidiaries is under any
obligation, contingent or otherwise, to register any of its securities under the
Securities Act.
SECTION 4.29. Books and Records. The books and records of Parent and
its subsidiaries have been, and are being, maintained in accordance with
applicable legal and accounting requirements and reflect in all material
respects the substance of events and transactions that should be included
therein.
SECTION 4.30. Corporate Documents. Parent has delivered to the Company
true and complete copies of (i) its articles of incorporation and by-laws and
(ii) the charter and by-laws of each subsidiary of Parent.
SECTION 4.31. Parent Action. The Board of Directors of Parent has
adopted resolutions recommending that this Plan be approved by the shareholders
of Parent and directing that this Plan be submitted for consideration by
Parent's shareholders at the Parent Meeting.
SECTION 4.32. Fair Lending; Community Reinvestment Act. As of the date
hereof, with the exception of routine investigation of consumer complaints,
neither Parent nor any of its subsidiaries has been advised that it is or may be
in violation of the Equal Credit Opportunity Act or the Fair Housing Act or any
similar federal or state statute. Each of Parent's subsidiaries received a CRA
rating of "satisfactory" or "outstanding" in its most recent CRA examination.
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SECTION 4.33. Other Activities of Parent and its Subsidiaries.
(a) Neither of Parent nor any of its subsidiaries that is not a
bank, a bank operating subsidiary or a bank service corporation,
directly or indirectly, engages in any activity prohibited by the
Federal Reserve Board. Without limiting the generality of the
foregoing, any equity investment of Parent and each subsidiary that is
not a bank, a bank operating subsidiary or a bank service corporation,
is not prohibited by the Federal Reserve Board.
(b) To Parent's knowledge, each of its subsidiaries which is a
bank (a "Parent Bank Subsidiary") currently performs all personal
trust, corporate trust and other fiduciary activities "Trust
Activities") with requisite authority under applicable law of
Governmental Entities and in accordance in all material respects with
the agreed-upon terms of the agreements and instruments governing such
Trust Activities, sound fiduciary principles and applicable law and
regulation (specifically including, but not limited to, Section 9 of
Title 12 of the Code of Federal Regulations); there is no investigation
or inquiry by any Governmental Entity pending, or to the knowledge of
Parent, threatened, against or affecting Parent, or any Significant
Subsidiary thereof relating to the compliance by Parent or any such
Significant Subsidiary (as such term is defined in Rule 1-02(w) of
Regulation S-X of the SEC) with sound fiduciary principles and
applicable regulations; and except where any such failure would not
have a Material Adverse Effect on Parent, each employee of a Parent
Bank Subsidiary had the authority to act in the capacity in which he or
she acted with respect to Trust Activities, in each case, in which such
employee held himself or herself out as a representative of a Parent
Bank Subsidiary; and each Parent Bank Subsidiary has established
policies and procedures for the purpose of complying with applicable
laws of Governmental Entities relating to Trust Activities, has
followed such policies and procedures in all material respects and has
performed appropriate internal audit reviews of, and has engaged
independent accountants to perform audits of, Trust Activities, which
audits since January 1, 1996 have disclosed no material violations of
applicable laws of Governmental Entities or such policies and
procedures.
SECTION 4.34. Year 2000. None of Parent or any of Parent's
subsidiaries has received, or reasonably expects to receive, a "Year 2000
Deficiency Notification Letter" (as such term is employed in the Federal
Reserve's Supervision and Regulation Letter No. SR 98-3(SUP), dated March 4,
1998). Parent has disclosed to the Company a complete and accurate copy of
Parent's plan, including an estimate of the anticipated associated costs, for
addressing the issues ("Year 2000 Issues") set forth in the statement of the
Federal Financial Institutions Examination Council, dated May 5, 1997, entitled
"Year 2000 Project Management Awareness," and December 1997, entitled "Safety
and Soundness Guidelines Concerning the Year 2000 Business Risk," as such issues
affect Parent and its Subsidiaries. Between the date of this Agreement and the
Effective Time, Parent shall use commercially practicable efforts to implement
such plan.
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SECTION 4.35. No Omission of Material Fact. No representation or
warranty by Parent in this Plan or under any documents, instruments,
certificates or schedules delivered or to be delivered pursuant hereto or in
connection with the transactions contemplated hereby contains any untrue
statement of material fact, or omits to state a material fact necessary to make
the statements or facts contained herein or therein not misleading. None of the
information regarding Parent or any of its subsidiaries or the transactions
contemplated hereby supplied or to be supplied by the Parent or any of its
subsidiaries for inclusion in any documents or filings to be filed with any
regulatory authority in connection with the transactions contemplated hereby
will contain any untrue statement of material fact, or omit to state a material
fact necessary to make the statements or facts contained therein not misleading.
SECTION 4.36. Conduct of Business. Since December 31, 1998, except as
contemplated by this Plan, neither Parent nor any of its subsidiaries has taken
any action which would have violated Section 2.4 had such Section been in effect
since December 31, 1998. Parent has not purchased any Parent Common Stock since
April 1, 1997.
ARTICLE V. ADDITIONAL AGREEMENTS
SECTION 5.1. Acquisition Proposals. The Company agrees that neither
it nor any of its subsidiaries nor any of the respective officers and directors
of the Company or its subsidiaries shall, and the Company shall direct and use
its best efforts to cause its employees, agents and representatives (including,
without limitation, any investment banker, attorney or accountant retained by it
or any of its subsidiaries) not to, initiate, solicit or encourage, directly or
indirectly, any inquiries or the making of any proposal or offer (including,
without limitation, any proposal or offer to shareholders of the Company) with
respect to a merger, consolidation or similar transaction involving, or any
purchase of all or any significant portion of the assets or any equity
securities of, the Company or any of its subsidiaries (any such proposal or
offer being hereinafter referred to as an "Acquisition Proposal") or, unless, at
any time prior to the adoption of this Agreement by the holders of Company
Common Stock, the Company's Board of Directors determines, upon receipt of a
written opinion of its outside legal counsel, that it is required to take the
following action in order to fulfill their fiduciary duties to the Company's
shareholders under the WBCL, engage in any negotiations concerning, or provide
any confidential information or data to, or have any discussions with, any
person relating to an Acquisition Proposal, or otherwise facilitate any effort
or attempt to make or implement an Acquisition Proposal. The Company will
immediately cease and cause to be terminated any existing activities,
discussions or negotiations with any parties conducted heretofore with respect
to any of the foregoing and enforce any confidentiality agreements to which it
or any of its subsidiaries is a party. The Company will take the necessary steps
to inform the appropriate individuals or entities referred to in the first
sentence hereof of the obligations undertaken in this Section 5.1. The Company
will notify (describing the relevant facts) Parent immediately if any such
inquiries or proposals are received by, any such information is requested from,
or any such negotiations or discussions are sought to be initiated or continued
with, the Company.
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SECTION 5.2. Certain Policies of the Company. At the request of
Parent, the Company shall modify and change its loan, litigation and real estate
valuation policies and practices (including loan classifications and levels of
reserves) after the date on which all required regulatory approvals are received
and all shareholder approvals are received and prior to the Effective Time so as
to be consistent on a mutually satisfactory basis with those of Parent and
generally accepted accounting principles. Neither the Company's representations,
warranties and covenants contained in this Plan shall be deemed to be untrue or
breached in any respect for any purpose nor shall the Exchange Ratio be modified
as a consequence of any modifications or changes undertaken solely on account of
this Section 5.2 nor shall the conditions set forth in Section 5.13 of this Plan
be deemed to have occurred by virtue thereof.
SECTION 5.3. Access and Information. Upon reasonable notice, each of
the Company and Parent shall (and shall cause its subsidiaries to) afford to the
other party and its representatives (including, without limitation, directors,
officers and employees of the other party and its affiliates, and counsel,
accountants and other advisors retained by the other party and its affiliates)
such access (including, without limitation, for the purpose of conducting
supplemental due diligence reviews) during normal business hours throughout the
period prior to the Effective Time to the books, records (including, without
limitation, loan and credit files, tax returns and work papers of independent
auditors), properties, personnel and to such other information as such party may
reasonably request; provided, however, that no investigation pursuant to this
Section 5.3 shall affect or be deemed to modify any representation or warranty
made herein. The Company and Parent will not, and each will cause its
representatives not to, use any information obtained pursuant to this Section
5.3 for any purpose unrelated to the consummation of the transactions
contemplated by this Plan. Subject to the requirements of law, the Company and
Parent will keep confidential, and will cause its representatives to keep
confidential, all information and documents obtained pursuant to this Section
5.3 unless such information (i) was already known to the Company or Parent, as
the case may be, or an affiliate of the Company or Parent, (ii) becomes
available to the Company or Parent, as the case may be, or an affiliate of the
Company or Parent from other sources not known by such party to be bound by a
confidentiality agreement, (iii) is disclosed with the prior written approval of
the Company or Parent, as the case may be, or (iv) is or becomes readily
ascertainable from published information or trade sources. In the event that
this Plan is terminated or the transactions contemplated by this Plan shall
otherwise fail to be consummated, each party shall promptly cause all copies of
documents or extracts thereof containing information and data as to another
party hereto (or an affiliate of any party hereto) to be returned to the party
which furnished the same. The provisions of the Confidentiality Agreements dated
April 5, 1999 and December 23, 1998 shall survive to the extent such terms are
not inconsistent with this Section 5.3.
SECTION 5.4. Certain Filings, Consents and Arrangements. Parent and
the Company shall, and Parent and the Company shall cause their respective
subsidiaries to, (a) as soon as practicable make any filings and applications
required to be filed in order to obtain all approvals, consents and waivers of
governmental authorities necessary or appropriate for the consummation of the
transactions contemplated hereby, (b) cooperate with one another (i) in promptly
determining what filings are required to be made or approvals, consents or
waivers are required to be obtained
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under any relevant federal, state or foreign law or regulation and (ii) in
promptly making any such filings, furnishing information required in connection
therewith and seeking timely to obtain any such approvals, consents or waivers
and (c) deliver to the other copies of the publicly available portions of all
such filings and applications promptly after they are filed.
SECTION 5.5. Antitakeover Statutes. The Company shall take all
actions necessary (i) to exempt the Company and the Plan from the requirements
of any state antitakeover law by action of its Board of Directors or otherwise
and (ii), upon the request of Parent, to assist in any challenge by Parent to
the applicability to the Merger of any state antitakeover law.
SECTION 5.6. Directors' and Officers' Indemnification.
(a) From and after the Effective Time through the sixth anniversary of
the Effective Date, Parent agrees to indemnify and hold harmless each present
and former director and officer of the Company and its subsidiaries determined
as of the Effective Time (the "Indemnified Parties"), against any costs or
expenses (including reasonable attorneys, fees), judgments, fines, losses,
claims, damages or liabilities (collectively, "Costs") incurred in connection
with any claim, action, suit, proceeding or investigation, whether civil,
criminal, administrative or investigative, arising out of matters existing or
occurring at or prior to the Effective Time, whether asserted or claimed prior
to, at or after the Effective Time, to the extent to which such Indemnified
Parties were entitled under the WBCL and the Company's articles of incorporation
or by-laws in effect on the date hereof, and Parent shall also advance expenses
as incurred to the extent permitted under the WBCL and the Company's articles of
incorporation and by-laws.
(b) Any Indemnified Party wishing to claim indemnification under
Section 5.6(a), upon learning of any such claim, action, suit, proceeding or
investigation, shall as promptly as possible notify Parent thereof, but the
failure to so notify shall not relieve Parent of any liability it may have to
such Indemnified Party if such failure does not materially prejudice the
Indemnifying Party. In the event of any such claim, action, suit, proceeding or
investigation (whether arising before or after the Effective Time), (i) Parent
shall have the right to assume the defense thereof and Parent shall not be
liable to such Indemnified Parties for any legal expenses of other counsel or
any other expenses subsequently incurred by such Indemnified Parties in
connection with the defense thereof, except that if Parent elects not to assume
such defense or counsel for the Indemnified Parties advises that there are
issues which raise conflicts of interest between Parent and the Indemnified
Parties, the Indemnified Parties may retain counsel satisfactory to them, and
Parent shall pay the reasonable fees and expenses of one such counsel for the
Indemnified Parties in any jurisdiction unless the use of one counsel for such
Indemnified Parties would present such counsel with a conflict of interest, (ii)
the Indemnified Parties will cooperate in the defense of any such matter and
(iii) Parent shall not be liable for any settlement effected without its prior
written consent; and provided, further, that Parent shall not have any
obligation hereunder to any Indemnified Party when and if a court of competent
jurisdiction shall ultimately determine, and such determination shall have
become final and nonappealable, that the indemnification of such Indemnified
Party in the manner contemplated hereby is not permitted or is prohibited by
applicable law.
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(c) Parent shall maintain in effect the current pre-paid directors'
and officers' liability insurance policy of the Company until August 1, 2001,
unless Parent and the Company agree to substitute an alternative policy or
policies therefor.
SECTION 5.7. Additional Agreements. Subject to the terms and
conditions herein provided, each of the parties hereto agrees to use its
reasonable efforts to take promptly, or cause to be taken promptly, all actions
and to do promptly, or cause to be done promptly, all things necessary, proper
or advisable under applicable laws and regulations to consummate and make
effective the transactions contemplated by this Plan as soon as practicable,
including using efforts to obtain all necessary actions or non-actions,
extensions, waivers, consents and approvals from all applicable governmental
entities, effecting all necessary registrations, applications and filings
(including, without limitation, filings under any applicable state securities
laws) and obtaining any required contractual consents and regulatory approvals.
SECTION 5.8. Publicity. The initial press release announcing this
Plan shall be a joint press release and thereafter the Company and Parent shall
consult with each other in issuing any press releases or otherwise making public
statements with respect to the other or the transactions contemplated hereby and
in making any filings with any governmental entity or with any national
securities exchange with respect thereto.
SECTION 5.9. Regulatory Matters.
(a) Parent and the Company shall promptly prepare and file with the
SEC the Joint Proxy Statement and Parent shall promptly prepare and file with
the SEC the S-4, in which the Joint Proxy Statement will be included as a
prospectus. Each of the Company and Parent shall use all reasonable efforts to
have the S-4 declared effective under the Securities Act as promptly as
practicable after such filing, and the Company and Parent shall thereafter mail
or deliver the Joint Proxy Statement to their respective shareholders. Parent
shall also use all reasonable efforts to obtain all necessary state securities
law or "Blue Sky" permits and approvals required to carry out the transactions
contemplated by this Plan, and the Company shall furnish all information
concerning the Company and the holders of the Company Common Stock as may be
reasonably requested in connection with any such action.
(b) The parties hereto shall cooperate with each other and use their
best efforts to promptly prepare and file all necessary documentation, to effect
all applications, notices, petitions and filings, to obtain as promptly as
practicable all permits, consents, approvals and authorizations of all third
parties and Governmental Entities which are necessary or advisable to consummate
the transactions contemplated by this Plan (including, without limitation, the
Merger), and to comply with the terms and conditions of all such permits,
consents, approvals and authorizations of all such Governmental Entities. The
Company and Parent shall have the right to review in advance, and, to the extent
practicable, each will consult the other on, in each case subject to applicable
laws relating to the exchange of information, all the information relating to
Parent or the Company, as the case may be, and any of their respective
subsidiaries, which appear in any filing made with, or written
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<PAGE> 46
materials submitted to, any third party or any Governmental Entity in connection
with the transactions contemplated by this Plan. In exercising the foregoing
right, each of the parties hereto shall act reasonably and as promptly as
practicable. The parties hereto agree that they will consult with each other
with respect to the obtaining of all permits, consents, approvals and
authorizations of all third parties and Governmental Entities necessary or
advisable to consummate the transactions contemplated by this Plan and each
party will keep the other apprised of the status of matters relating to
completion of the transactions contemplated herein.
(c) The Company and Parent shall, upon request, furnish each other
with all information concerning themselves, their subsidiaries, directors,
officers and shareholders and such other matters as may be reasonably necessary
or advisable in connection with the Joint Proxy Statement, the S-4 or any other
statement, filing, notice or application made by or on behalf of the Company,
Parent or any of their respective subsidiaries to any Governmental Entity in
connection with the Merger and the other transactions contemplated by this Plan.
(d) The Company and Parent shall promptly advise each other upon
receiving any communication from any Governmental Entity whose consent or
approval is required for consummation of the transactions contemplated by this
Plan which causes such party to believe that there is a reasonable likelihood
that any regulatory approval will not be obtained or that the receipt of any
such approval will be materially delayed.
SECTION 5.10. Shareholders' Meeting. Each of Parent and Company shall
take all action necessary, in accordance with applicable law and its articles of
incorporation and by-laws, to convene a meeting of its shareholders as promptly
as practicable for the purpose of approving the issuance of Parent Shares
pursuant to this Plan, in the case of Parent, and approving this Plan, in the
case of the Company. The Board of Directors of the Company and Parent shall
recommend that this Plan be approved by each of the shareholders of the Company
and Parent, as applicable; provided, however, that the Board of Directors of
either the Company or Parent may withdraw its recommendation and make no
recommendation with respect to the Plan, if either board determines, upon
receipt of a written opinion of its outside counsel, that it is required to do
so in order to fulfill its respective fiduciary duties to its shareholders under
either the MBCA or the WBCL, as applicable. Notwithstanding the preceding
sentence, neither the Company nor Parent shall in any way be relieved of its
obligation to convene a meeting of its shareholders as promptly as practicable
for the purpose of approving this Plan or approving the issuance of Parent
Shares pursuant to this Plan, as applicable.
SECTION 5.11. Affiliates; Publication of Combined Financial Results.
(a) Each of the Company and Parent shall use its best efforts to
cause each director, executive officer and other person who is an "affiliate"
(for purposes of Rule 145 under the Securities Act and for purposes of
qualifying the Merger for "pooling of interests" accounting treatment) of such
party to deliver to the other party hereto, as soon as practicable after the
date of this Plan, and prior to the date of the shareholders meetings called by
the Company and Parent to
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approve this Plan, a written agreement, in the form of Annex 2 hereto, providing
that such person will not sell, pledge, transfer or otherwise dispose of any
shares of the Company Common Stock or Parent Common Stock held by such
"affiliate" and, in the case of the "affiliates" of the Company, the shares of
Parent Common Stock to be received by such "affiliate" in the Merger, except in
compliance with the applicable provisions of the Securities Act and the rules
and regulations thereunder and during the period commencing 30 days prior to the
Merger and ending at the time of the publication of financial results covering
at least 30 days of combined operations of the Company and Parent.
(b) Parent shall use its best efforts to publish as promptly as
reasonably practical but in no event later than 90 days after the end of the
first month after the Effective Time in which there are at least 30 days of
post-Merger combined operations (which month may be the month in which the
Effective Time occurs), combined sales and net income figures as contemplated by
and in accordance with the terms of SEC Accounting Series Release No. 135.
SECTION 5.12. Authorization, Reservation and Listing. By appropriate
resolution, a certified copy of which shall be provided to the Company, the
Board of Directors of Parent shall, prior to the Effective Time, authorize and
reserve the required number of shares of Parent Common Stock to be issued
pursuant to the Plan of Merger. Parent shall cause the shares of Parent Common
Stock to be issued in the Merger to be approved for listing on The Nasdaq Stock
Market, subject to official notice of issuance, prior to the Effective Time.
SECTION 5.13. Notification of Certain Matters.
(a) Each party shall give prompt notice to the others of: (i) any
notice of, or other communication relating to, a default or event that, with
notice or lapse of time or both, would become a default, received by it or any
of its subsidiaries subsequent to the date of this Plan and prior to the
Effective Time, under any contract material to the financial condition,
properties, businesses or results of its operations, to which it or any
subsidiary is a party or is subject; and (ii) any Material Adverse Effect or the
occurrence of any event which, so far as reasonably can be foreseen at the time
of its occurrence, is reasonably likely to result in any such Material Adverse
Effect. Each of the Company and Parent shall give prompt notice to the other
party of any notice or other communication from any third party alleging that
the consent of such third party is or may be required in connection with the
transactions contemplated by this Plan.
(b) Subject to any notice previously provided under Section 5.13(a)
above, from and after the due date hereof to the Effective Time and at and as of
the Effective Time, the Company and Parent shall supplement or amend any of its
representations and warranties which apply to the period after the date hereof
by delivering monthly updates to the Company Disclosure Letter or the Parent
Disclosure Letter, as applicable ("Disclosure Letter Updates") to the other
party with respect to any matter hereafter arising which, in its good faith
judgment, would render any such representation or warranty after the date of
this Plan materially inaccurate or incomplete as a result of such matter
arising. The Disclosure Letter Updates shall be provided on or before the 25th
day of each calendar
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month commencing the first full calendar month after the date of this Agreement.
Within twenty (20) days after receipt of any Disclosure Letter Update (or if
cure is promptly commenced, but is not effected within thirty (30) days after
receipt of any Disclosure Letter Update (the "Cure Period")), Parent or the
Company, as the case may be, may exercise its right to terminate this Plan
pursuant to Section 7.1(f) hereof, if the information in such Disclosure Letter
Update together with the information in any or all of the Disclosure Letter
Updates previously provided, indicates that a Material Adverse Effect with
respect to the Company or Parent, as applicable, has occurred or is reasonably
likely to occur which either has not or cannot be cured within the Cure Period,
or which does not result primarily from changes in the general level of interest
rates.
SECTION 5.14. Board of Directors and Executive Committee of Parent.
Parent will take such action as may be necessary so that the number of directors
of Parent shall be increased by three subsequent to the Effective Time. Three
individuals designated by the Board of Directors of the Company within thirty
(30) days prior to the Effective Time and acceptable to Parent in accordance
with the policies of Parent with respect to the service of directors shall be
added to the Board of Directors of Parent subsequent to the Effective Time. Such
individuals shall hold office for the terms which shall coincide with the
remaining terms of the classes to which they are added. Parent also will take
such action as may be necessary so that one individual designated by the Board
of Directors of the Company within thirty (30) days prior to the Effective Time
and acceptable to Parent in accordance with the policies of Parent with respect
to the service of directors shall be added as a rotating member of the Executive
Committee of the Board of Directors of Parent subsequent to the Effective Time.
SECTION 5.15. Benefit Plans. For purposes of crediting periods of
service for eligibility and vesting, but not for benefit accrual purposes, under
the Parent's Amended and Restated Section 401(k) Plan (the "Parent 401(k) Plan),
and for purposes of crediting periods of service for eligibility for other
employee benefits provided to employees of Parent, employees of the Company who
otherwise would be eligible to participate in such plans and benefit programs
after the Effective Time shall be given credit for service with the Company
prior to the Effective Time. For purposes of crediting periods of service for
eligibility and vesting, but not for benefit accrual purposes, under Parent's
qualified defined benefit pension plan (the "Parent Retirement Plan"), employees
of the Company who become participants in the Parent Retirement Plan after the
Effective Time shall be given credit for service with the Company prior to the
Effective Time.
SECTION 5.16. Employment Arrangements. Parent agrees to cause to be
honored, in accordance with their existing terms, all employment agreements and
severance plans of the Company in effect as of the date hereof.
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ARTICLE VI. CONDITIONS TO CONSUMMATION
SECTION 6.1. Conditions to All Parties' Obligations. The respective
obligations of Parent and the Company to effect the Merger shall be subject to
the satisfaction or waiver prior to the Effective Time of the following
conditions:
(a) The Plan and the transactions contemplated hereby shall have been
approved by the requisite vote of the shareholders of the Company and Parent in
accordance with their respective articles of incorporation and applicable law.
(b) Parent, the Company and each of their respective subsidiaries
shall have procured, if required in the opinion of counsel for Parent, the
approvals, consents or waivers with respect to the Plan and the transactions
contemplated hereby by (i) the appropriate State Regulators, and (ii) the
Federal Reserve Board, and all applicable statutory waiting periods shall have
expired; and the parties shall have procured all other regulatory approvals,
consents or waivers of governmental authorities or other persons that, in the
opinion of counsel for Parent , are necessary or appropriate for the
consummation of the transactions contemplated by the Plan; provided, however,
that no approval, consent or waiver referred to in this Section 6.1(b) shall be
deemed to have been received if it shall include any condition or requirement
that, individually or in the aggregate, (i) would result in a Material Adverse
Effect on Parent, (ii) imposes any requirement upon Parent, the Company or their
respective subsidiaries to (x) dispose of any asset which is material to Parent
or the Company, (y) materially restrict or curtail the current business
operations or activities of Parent or the Company or (z) raise an amount of
capital, the issuance and sale of which, in the absence of the Merger and the
other transactions contemplated by this Plan, would in Parent's judgment be
materially burdensome in light of Parent's capital raising policies or (iii)
would reduce the benefits of the transactions contemplated by the Plan to Parent
in so significant a manner that Parent, in its judgment, would not have entered
into this Plan had such condition or requirement been known at the date hereof.
(c) The S-4 shall have become effective under the Securities Act and
no stop order suspending the effectiveness of the S-4 shall have been issued and
no proceedings for that purpose shall have been initiated or threatened by the
SEC.
(d) Parent and the Company shall each have received a letter from
their respective independent accountants addressed to Parent or the Company, as
the case may be, to the effect that the Merger will qualify for "pooling of
interests" accounting treatment.
(e) All other requirements prescribed by law which are necessary to
the consummation of the transactions contemplated by this Plan shall have been
satisfied.
(f) No party hereto shall be subject to any order, decree or
injunction of a court or agency of competent jurisdiction which enjoins or
prohibits the consummation of the Merger or any other
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transaction contemplated by this Plan, and no litigation or proceeding shall be
pending against Parent or the Company or any of their subsidiaries brought by
any governmental agency seeking to prevent consummation of the transactions
contemplated hereby.
(g) No statute, rule, regulation, order, injunction or decree shall
have been enacted, entered, promulgated, interpreted, applied or enforced by any
governmental authority which prohibits, restricts or makes illegal consummation
of the Merger or any other transaction contemplated by this Plan.
SECTION 6.2. Conditions to the Obligations of Parent. The
obligations of Parent to effect the Merger shall be subject to the satisfaction
or waiver prior to the Effective Time of the following additional conditions:
(a) Each of the representations and warranties of the Company
contained in this Plan shall have been true on the date hereof and shall be true
in all material respects on the Effective Date as if made on such date (or on
the date when made in the case of any representation or warranty which
specifically relates to an earlier date); the Company shall have performed, in
all material respects, each of its covenants and agreements contained in this
Plan; and Parent shall have received a certificate signed by the Chief Executive
Officer and the Chief Financial Officer of the Company, dated the Effective
Date, to the foregoing effect.
(b) Parent shall have received a written opinion, dated the Effective
Date, from McCarty, Curry, Wydeven, Peeters & Haak, LLP, counsel to the Company,
in form and substance satisfactory to Parent.
(c) Parent shall have received a written opinion from Dykema Gossett
PLLC, in form and substance satisfactory to Parent, to the effect that the
Merger will constitute a reorganization within the meaning of Section 368 of the
Code.
SECTION 6.3. Conditions to the Obligation of the Company. The
obligation of the Company to effect the Merger shall be subject to the
satisfaction or waiver prior to the Effective Time of the following additional
conditions:
(a) Each of the representations and warranties of Parent contained in
this Plan shall have been true on the date hereof and shall be true in all
material respects on the Effective Date as if made on such date (or on the date
when made in the case of any representation or warranty which specifically
relates to an earlier date); Parent shall have performed, in all material
respects, each of its covenants and agreements contained in this Plan; and the
Company shall have received certificates signed by the Chief Financial Officer
of Parent, dated the Effective Date, to the foregoing effect.
(b) The Company shall have received a written opinion, dated the
Effective Date, from Dykema Gossett PLLC, counsel to Parent in form and
substance satisfactory to the Company.
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(c) The Company shall have received a written opinion from either
McCarty, Curry, Wydeven, Peeters & Haak, LLP or Quarles & Brady LLP in form and
substance satisfactory to the Company, to the effect that the Merger will
constitute a reorganization within the meaning of Section 368 of the Code.
ARTICLE VII. TERMINATION
SECTION 7.1. Termination. This Plan may be terminated, and the
Merger abandoned, prior to the Effective Date, either before or after its
approval by the shareholders of the Company or Parent;
(a) by mutual consent of the Boards of Directors of Parent and the
Company; or
(b) by either Parent or the Company, if any of the conditions to such
party's obligation to consummate the transactions contemplated in this Plan
shall have become impossible to satisfy if, but only if, such party has used its
best efforts and acted in good faith in attempting to satisfy all such
conditions and if such party is not then in breach or default in any material
respect of this Plan; or
(c) by the Board of Directors of Parent if (i) there has been a
material breach or default by the Company of any representation or warranty or
in the observance of its convenants and agreements contained in this Plan of
which notice has been given in writing by Parent and which has not been cured
within thirty (30) business days of receipt of such notice; or (ii) the
Effective Time has not occurred prior to December 31, 1999, without fault on the
part of Parent, or (iii) a public announcement with respect to an Acquisition
Proposal shall have been made by any person other than Parent or an affiliate of
Parent and the Board of Directors of the Company shall have (A) failed to
publicly reject or oppose such Acquisition Proposal within ten (10) days of the
public announcement of such proposal, plan or intention or (B) shall have
modified, amended or withdrawn its recommended approval of this Plan and the
Merger to the Company's shareholders; or
(d) by the Board of Directors of the Company if (i) there has been a
material breach or default by Parent of any representation or warranty or in the
observance of its covenants and agreements contained in this Plan of which
notice has been given in writing by the Company and which has not been cured
within thirty (30) business days of receipt of such notice; or (ii) the
Effective Time has not occurred prior to December 31, 1999 without fault on the
part of the Company; or
(e) by the Board of Directors of either Parent or the Company (i) if
any shareholder approval of the Company required for consummation of the Merger
shall not have been obtained by reason of the failure to obtain the required
vote at a duly held meeting of shareholders or at any adjournment or
postponement thereof; or (ii) if any shareholder approval of Parent required for
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consummation of the Merger shall not have been obtained by reason of the failure
to obtain the required vote at a duly held meeting of shareholders or at any
adjournment or postponement thereof or (iii) if any Regulatory Agency has denied
approval for the Merger and, if such denial is appealable, neither Parent nor
the Company has filed a petition seeking review of such order of denial or taken
other similar action under applicable law, within thirty (30) days after the
issuance or entry by the governmental agency of such order of denial; or
(f) by Parent or the Company pursuant to Section 5.13(b).
(g) by Parent, at its sole discretion, at any time (i) within 45 days
of the date of this Agreement, if Parent is not satisfied with its due diligence
review of the quality of the Company's loan portfolio, or (ii) if any
representation or warranty of the Company contained in Section 3.21 is untrue,
without respect to the knowledge of the Company.
SECTION 7.2. Effect of Termination. In the event of the termination
of this Plan as provided in Section 7.1, written notice thereof shall forthwith
be given to the other party or parties specifying the provision hereof pursuant
to which such termination is made, and this Plan shall forthwith become null and
void, and there shall be no liability on the part of Parent or the Company or
any of their officers or directors, except (i) for fraud or willful and material
breach of this Plan and (ii) Sections 5.3, 7.2, 9.2, 9.6 and 9.7 hereof shall
survive any termination of this Plan.
ARTICLE VIII. EFFECTIVE DATE AND EFFECTIVE TIME
SECTION 8.1. Effective Date and Effective Time. On such date as
Parent selects, which shall be within 30 days after the last to occur of the
expiration of all applicable waiting periods in connection with approvals of
governmental authorities occurs and the receipt of all approvals of governmental
authorities and all conditions to the consummation of the Merger are satisfied
or waived, or on such earlier or later date as may be agreed in writing by the
parties, a certificate of merger shall be executed in accordance with all
appropriate legal requirements and shall be filed as required by law, and the
Merger provided for herein shall become effective upon such filing or on such
date and at such time as may be specified in such certificate of merger. The
date and time of such filing or such later effective date is herein called the
"Effective Date". The "Effective Time" of the Merger shall be the time of such
filing or as set forth in such certificate of merger.
ARTICLE IX. OTHER MATTERS
SECTION 9.1. Certain Definitions; Interpretation. As used in this
Plan, the following terms shall have the meanings indicated:
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"material" means material with respect to the entity in question and
its respective subsidiaries, taken as a whole.
"Material Adverse Effect", with respect to a person, means any
condition, event, change or occurrence that is reasonably likely to
have a material adverse effect upon (A) the condition (financial or
other), properties, assets, business, results of opera tions or
prospects of such person and its subsidiaries, taken as a whole, or (B)
the ability of such person to perform its obligations under, and to
consummate the transactions contemplated by, this Plan.
"person" includes an individual, corporation, partnership, association,
trust or unincorporated organization.
"subsidiary", with respect to a person, means any other person
controlled by such person.
When a reference is made in this Plan to Sections or Annexes, such reference
shall be to a Section of, or Annex to, this Plan unless otherwise indicated. The
table of contents and headings contained in this Plan are for ease of reference
only and shall not affect the meaning or interpretation of this Plan. Whenever
the words "include", "includes", or "including" are used in this Plan, they
shall be deemed followed by the words "without limitation". Any singular term in
this Plan shall be deemed to include the plural, and any plural term the
singular.
SECTION 9.2. Survival. Only those agreements and covenants of the
parties that are by their terms applicable in whole or in part after the
Effective Time, including the Stock Option Agreement, shall survive the
Effective Time. All other representations, warranties, agreements and covenants
shall be deemed to be conditions of the Plan and shall not survive the Effective
Time.
SECTION 9.3. Waiver. Prior to the Effective Time, any provision of
this Plan may be: (i) waived by the party benefitted by the provision; or (ii)
amended or modified at any time (including the structure of the transaction) by
an agreement in writing between the parties hereto, except that, after the vote
by the shareholders of the Company, no amendment may be made that would
contravene the applicable sections of the MBCA and the WBCL.
SECTION 9.4. Counterparts. This Plan may be executed and delivered
in counterparts each of which shall be deemed to constitute an original, but all
of which together shall constitute one and the same instrument.
SECTION 9.5. Governing Law. This Plan shall be governed by, and
interpreted in accordance with, the laws of the State of Michigan.
SECTION 9.6. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
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<PAGE> 54
LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS PLAN OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
SECTION 9.7. Expenses. Each party hereto will bear all expenses
incurred by it in connection with this Plan and the transactions contemplated
hereby; provided, however, that Parent and the Company shall share equally all
fees and expenses, other than accountants', attorneys' and filing fees, incurred
in connection with the printing and filing of the S-4 and the Joint Proxy
Statement (including any preliminary materials related thereto and any
amendments or supplements thereof).
SECTION 9.8. Notices. All notices, requests, acknowledgments and
other communications hereunder to a party shall be in writing and shall be
deemed to have been duly given when delivered by hand, telecopy, telegram, telex
or facsimile (confirmed in writing) to such party at its address set forth below
or such other address as such party may specify by notice to the other party
hereto.
If to the Company, to:
F & M Bancorporation, Inc.
One Bank Avenue
Kaukauna, Wisconsin 54130
Facsimile: (920) 766-5628
Attention: Gail E. Janssen
With copies to:
McCarty, Curry, Wydeven, Peeters & Haak, LLP
120 E. 4th Street
Kaukauna, Wisconsin 54130
Facsimile: (920) 766-4756
Attention: Randall A. Haak, Esq.
and
Quarles & Brady LLP
411 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
Facsimile: (414) 271-3552
Attention: Kenneth V. Hallett, Esq.
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If to Parent, to:
Citizens Banking Corporation
One Citizens Banking Center
Flint, Michigan 48502
Facsimile: (810) 257-2570
Attention: Thomas W. Gallagher, Esq.
With copies to:
Dykema Gossett PLLC
1577 North Woodward Avenue
Suite 300
Bloomfield Hills, Michigan 48304-2820
Facsimile: (248) 540-0763
Attention: Rex E. Schlaybaugh, Jr., Esq.
SECTION 9.9. Entire Agreement; Etc. This Plan and the Stock Option
Agreement represents the entire understanding of the parties hereto with
reference to the transactions contemplated hereby and supersedes any and all
other oral or written agreements heretofore made. All terms and provisions of
the Plan shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and assigns. Except as to Sections 1.5,
5.6 and 5.15 (which may only be enforced by any person who is not a party to
this Plan after the Effective Time), nothing in this Plan is intended to confer
upon any other person any rights or remedies of any nature whatsoever under or
by reason of this Plan.
SECTION 9.10. Assignment. This Plan may not be assigned by any party
hereto without the written consent of the other parties, except that Parent may
assign all or any of its rights hereunder to any of its subsidiaries provided
that no such assignment shall relieve Parent of its obligations hereunder.
[this space intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Plan to be
executed by their duly authorized officers as of the day and year first above
written.
CITIZENS BANKING CORPORATION
By: Robert J. Vitito
------------------------------------------------
Name: Robert J. Vitito
Title: President and CEO
F & M BANCORPORATION, INC.
By: John W. Johnson
------------------------------------------------
Name: John W. Johnson
Title: President and CEO
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ANNEX 1
STOCK OPTION AGREEMENT
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ANNEX 2
AFFILIATE LETTER
53
