<PAGE>
As filed with the Securities and Exchange Commission on November 22, 1994
Registration No. 33-________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_______________
FORM S-4
Registration Statement Under The Securities Act of 1933
_______________
MARSHALL & ILSLEY CORPORATION
(Exact name of Registrant as specified in charter)
Wisconsin 6022 39-0968604
(State of Incorporation) (Primary Standard Industrial (I.R.S. Employer
Classification Code No.) Identification No.)
770 North Water Street
Milwaukee, Wisconsin 53201
(Address, including ZIP Code, and telephone number, including
area code, of Registrant's principal executive offices)
_______________
M.A. HATFIELD, Secretary
Marshall & Ilsley Corporation, 770 North Water Street,
Milwaukee, Wisconsin 53202
(414) 765-7801
(Name, address, including ZIP Code, and telephone number,
including area code, of agent for service)
_______________
Copies to:
Randall J. Erickson Frank J. Pelisek
Godfrey & Kahn, S.C. Michael, Best &
Friedrich
780 North Water Street 100 East Wisconsin Avenue
Milwaukee, Wisconsin 53202 Milwaukee, Wisconsin 53202
(414) 273-3500 (414) 271-6560
Approximate date of commencement of proposed sale to the public: As
soon as practicable after the effective date of the Registration Statement.
If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance
with General Instruction G, check the following box. [ ]
CALCULATION OF REGISTRATION FEE
================================================================================
Proposed Proposed
Maximum Maximum
Offering Aggregate Amount of
Title of Securities Amount to Price Per Offering Registration
to be Registered be Registered(1) Share (2) Price (2) Fee (3)
________________________________________________________________________________
Common Stock, 1,491,600 N/A $28,928,000 $9,975.24
$1.00 par value
================================================================================
(1) The number of shares to be registered is based upon an estimate of the
maximum number of shares of Common Stock of the Registrant to be issued
to holders of Common Stock of the Bank of Burlington ("Bank") pursuant
to the Agreement (as defined herein).
(2) The registration fee was computed pursuant to Rule 457(f)(1) under the
Securities Act of 1933, as amended, based upon the average of the bid
and asked prices of shares of Bank Common Stock on November 18, 1994
($32.00) and the maximum number of such shares 904,000 that may be
exchanged for the Common Stock of the Registrant being registered.
(3) In accordance with Rule 457(b), the total registration fee of $9,975.24
has been reduced by $9,351.79, which was previously paid on September
19, 1994 upon the filing under the Securities Exchange Act of 1934, as
amended, of preliminary copies of proxy materials of the Bank.
Therefore, the registration fee payable upon the filing of this
Registration Statement is $623.45.
The Registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this
Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until the Registration
Statement shall become effective on such date as the Commission, acting
pursuant to said Section 8(a), may determine.
================================================================================
<PAGE>
MARSHALL & ILSLEY CORPORATION
Cross Reference Sheet
Registration Statement
Item and Heading Location in Prospectus
- ---------------------- ----------------------
1. Forepart of Registration Statement and....... Facing Page of Registration
Outside Front Cover Page of Prospectus Statement; Cross-Reference
Sheet; Outside Front Cover
Page of Prospectus/Proxy
Statement
2. Inside Front and Outside Back Cover.......... Inside Front Cover of
Pages of Prospectus Prospectus/Proxy Statement;
Available Information;
Incorporation of Certain
Information by Reference;
Table of Contents
3. Risk Factors, Ratio of Earnings to........... Summary
Fixed Charges and Other Information
4. Terms of the Transaction..................... Incorporation of Certain
Information by Reference;
Summary; The Consolidation;
Comparison of Shareholder
Rights; Certain Provisions
of the Wisconsin Business
Corporation Law
5. Pro Forma Financial Information.............. Not Applicable
6. Material Contacts With the Company........... Certain Related Transactions
Being Acquired
7. Additional Information Required for.......... Not Applicable
Reoffering by Persons and Parties
Deemed to be Underwriters
8. Interests of Named Experts and Counsel....... Not Applicable
9. Disclosure of Commission Position on......... Not Applicable
Indemnification For Securities Act
Liabilities
10. Information With Respect to S-3 Registrants.. Available Information;
Incorporation of Certain
Information by Reference;
Summary; Certain Information
Regarding M&I and the Bank
11. Incorporation of Certain Information by...... Summary; Incorporation of
Reference Certain Information by
Reference
12. Information with Respect to S-2 or S-3....... Not Applicable
Registrants
13. Incorporation of Certain Information by...... Not Applicable
Reference
<PAGE>
14. Information with Respect to Registrants...... Not Applicable
other than S-2 or S-3 Registrants
15. Information with Respect to S-3 Companies.... Not Applicable
16. Information with Respect to S-2 or S-3....... Documents Accompanying
Companies Prospectus/Proxy
Statement; Incorporation of
Certain Information by
Reference; Summary; Certain
Information Regarding M&I
and the Bank
17. Information with Respect to Companies........ Not Applicable
other than S-3 or S-2 Companies
18. Information if Proxies, Consents or.......... Incorporation of
Authorizations to be Solicited Certain Information by
Reference; Summary; The
Special Meeting; The
Consolidation - Dissenters'
Rights of Appraisal; The
Consolidation - Conditions
to Consolidation
19. Information if Proxies, Consents or.......... Not Applicable
Authorizations are not to be Solicited
or in an Exchange Offer
<PAGE>
Bank of Burlington
200 South Pine Street
Burlington, Wisconsin 53105
---------------------------
Notice of Special Meeting of Shareholders
To Be Held January 12, 1995
Notice is hereby given that a special meeting of shareholders of the Bank
of Burlington, a Wisconsin state bank (the "Bank"), will be held on Thursday,
January 12, 1995 at 4:00 p.m. local time, at Richard's White Oaks, 7305 McHenry
Street, Burlington, Wisconsin 53105 (the "Special Meeting") for the following
purposes:
1. To consider and act upon a proposal to approve the Agreement and Plan
of Reorganization dated June 15, 1994, as amended and restated, between the Bank
and Marshall & Ilsley Corporation ("M&I") and a related Consolidation Agreement
between M&I Interim Bank ("M&I Interim Bank") and the Bank (all of which are
hereinafter collectively referred to as the "Agreement"), copies of which are
attached as Appendix A to the accompanying Prospectus/Proxy Statement, pursuant
to which M&I Interim Bank will be consolidated with and into the Bank (the
"Consolidation") and each outstanding share of the Bank's common stock, $1.25
par value, will be converted into the right to receive 1.65 shares of M&I's
common stock, $1.00 par value, and cash in lieu of fractional shares;
2. To transact such other business as may properly come before the
Special Meeting or any adjournments thereof.
Shareholders are urged to read the accompanying Prospectus/Proxy
Statement completely and carefully. No person has been authorized to give any
information or make any representations not contained in the accompanying
Prospectus/Proxy Statement and if given or made such information and
representations should not be relied upon.
The Board of Directors of the Bank has fixed the close of business on
December 1, 1994, as the record date (the "Record Date") for determining the
shareholders of the Bank entitled to notice of and to vote at the Special
Meeting, and only shareholders of record at such time will be entitled to such
notice and to vote.
THE BOARD OF DIRECTORS OF THE BANK BELIEVES THAT THE PROPOSED
CONSOLIDATION IS IN THE BEST INTERESTS OF THE BANK AND ITS SHAREHOLDERS AND
RECOMMENDS THAT SHAREHOLDERS OF THE BANK VOTE "FOR" THE AGREEMENT AND THE
PROPOSED CONSOLIDATION.
DISSENTERS' RIGHTS OF APPRAISAL ARE AVAILABLE TO BANK SHAREHOLDERS WHO
WISH TO DISSENT FROM THE CONSOLIDATION AND WHO PROPERLY PERFECT SUCH RIGHTS.
By order of the Board of Directors
Patrick M. Lloyd, Chairman of Board
Burlington, Wisconsin
December 2, 1994
_________________________
Your vote is important. Please mark, sign and date the accompanying form of
proxy and return it promptly in the envelope enclosed for your use. The form
of proxy will not be used if you attend the meeting and wish to vote in person.
The date of the accompanying Prospectus/Proxy Statement is November 22,
1994.
<PAGE>
BANK OF BURLINGTON
PROXY STATEMENT
------------------
MARSHALL & ILSLEY CORPORATION
PROSPECTUS
1,491,600 SHARES
Common Stock ($1.00 par value)
This Prospectus/Proxy Statement is being furnished in connection with the
solicitation of proxies by the Board of Directors of the Bank of Burlington, a
Wisconsin state bank (the "Bank"), from the holders of the Bank's Common Stock,
$1.25 par value (the "Bank Stock"), for use at the special meeting of the Bank's
shareholders to be held on January 12, 1995 at the time and place set forth in
the notice accompanying this Prospectus/Proxy Statement (the "Special Meeting").
This Prospectus/Proxy Statement and the accompanying Proxy are being sent to the
Bank's shareholders commencing on or about December 2, 1994.
This Prospectus/Proxy Statement constitutes a Prospectus of Marshall &
Ilsley Corporation, a Wisconsin corporation ("M&I"), covering shares of M&I
Common Stock, $1.00 par value ("M&I Stock"), which may be issued and delivered
pursuant to the Agreement and Plan of Reorganization dated as of June 15, 1994,
as amended and restated, and a related Consolidation Agreement by and between
the Bank and M&I Interim Bank, a Wisconsin state bank ("M&I Interim Bank"),
(hereinafter collectively referred to as the "Agreement"). The Agreement
provides for the consolidation of M&I Interim Bank with and into the Bank (the
"Consolidation") in which each share of Bank Stock will be converted into the
right to receive 1.65 shares of M&I Stock.
At the Special Meeting, the Bank's shareholders will be asked to consider
and act upon all of the transactions contemplated by the Agreement.
M&I Stock is quoted under the symbol "MRIS" on the National Association
of Securities Dealers Automated Quotations-National Market System
("NASDAQ/NMS"). On November 17, 1994, the closing sale price of M&I Stock on
the NASDAQ/NMS as reported in the Midwest edition of The Wall Street Journal was
$20.00 per share.
The principal executive offices of M&I are located at 770 North Water
Street, Milwaukee, Wisconsin 53202 and its general phone number is (414) 765-
7801.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR BY ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS/PROXY STATEMENT.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
-----------------------
THE SHARES OF M&I STOCK OFFERED HEREBY ARE NOT DEPOSITS OR SAVINGS ACCOUNTS
AND ARE NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY
OTHER GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
-----------------------
The date of this Prospectus/Proxy Statement is November 22, 1994.
<PAGE>
TABLE OF CONTENTS
Page
AVAILABLE INFORMATION . . . . . . . . . . . . . . . . . . . . . . . . . 1
DOCUMENTS ACCOMPANYING PROSPECTUS/PROXY STATEMENT . . . . . . . . . . . 1
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE . . . . . . . . . . . 1
SUMMARY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . 3
M&I. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
M&I Interim Bank . . . . . . . . . . . . . . . . . . . . . . . . 3
The Bank . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Time, Place and Date of the Special Meeting. . . . . . . . . . . 4
Purpose of the Meeting . . . . . . . . . . . . . . . . . . . . . 4
Required Vote. . . . . . . . . . . . . . . . . . . . . . . . . . 4
Recommendation of the Board. . . . . . . . . . . . . . . . . . . 4
The Consolidation and the Exchange Ratio . . . . . . . . . . . . 4
Required Regulatory Approval . . . . . . . . . . . . . . . . . . 4
Conditions to the Consolidation. . . . . . . . . . . . . . . . . 5
Termination of the Agreement . . . . . . . . . . . . . . . . . . 5
Federal Income Tax Consequences. . . . . . . . . . . . . . . . . 5
Dissenters' Rights of Appraisal. . . . . . . . . . . . . . . . . 5
Selected Per Share Data. . . . . . . . . . . . . . . . . . . . . 6
Comparative Stock Prices . . . . . . . . . . . . . . . . . . . . 7
Selected Historical Financial Information. . . . . . . . . . . . 7
THE SPECIAL MEETING . . . . . . . . . . . . . . . . . . . . . . . . . . 10
General. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Proposals to be Considered . . . . . . . . . . . . . . . . . . . 10
Record Date and Voting Rights. . . . . . . . . . . . . . . . . . 10
Voting; Revocation of Proxies. . . . . . . . . . . . . . . . . . 10
Solicitation of Proxies. . . . . . . . . . . . . . . . . . . . . 10
THE CONSOLIDATION . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
General. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Effective Time . . . . . . . . . . . . . . . . . . . . . . . . . 11
Background of the Consolidation. . . . . . . . . . . . . . . . . 11
Reasons For Approval of the Consolidation. . . . . . . . . . . . 12
Consolidation Consideration. . . . . . . . . . . . . . . . . . . 12
Conversion of Shares; Exchange of Certificates; No Fractional
Shares . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Representations and Warranties . . . . . . . . . . . . . . . . . 14
Additional Covenants and Agreements. . . . . . . . . . . . . . . 15
No Solicitation of Transactions. . . . . . . . . . . . . . . . . 17
Conditions to the Consolidation. . . . . . . . . . . . . . . . . 17
Termination and Amendment. . . . . . . . . . . . . . . . . . . . 18
Accounting Treatment . . . . . . . . . . . . . . . . . . . . . . 18
Certain Federal Income Tax Consequences. . . . . . . . . . . . . 18
<PAGE>
Resale of M&I Stock by Affiliates. . . . . . . . . . . . . . . . 19
Dissenters' Rights of Appraisal. . . . . . . . . . . . . . . . . 19
Regulatory Approvals Required. . . . . . . . . . . . . . . . . . 20
Closing Date . . . . . . . . . . . . . . . . . . . . . . . . . . 21
COMPARISON OF SHAREHOLDER RIGHTS. . . . . . . . . . . . . . . . . . . . 21
Required Vote for Authorization of Certain Transactions. . . . . 21
Amendment of By-laws . . . . . . . . . . . . . . . . . . . . . . 21
Size, Classification of, and Vote Required to Elect Board of
Directors. . . . . . . . . . . . . . . . . . . . . . . . . 22
Removal of Directors for "Cause" . . . . . . . . . . . . . . . . 22
Newly Created Directorships and Vacancies on the Board of
Directors. . . . . . . . . . . . . . . . . . . . . . . . . 22
Advance Notice of Proposals to be Brought at the Annual Meeting. 22
Advance Notice of Nominations of Directors . . . . . . . . . . . 23
Certain Business Combinations. . . . . . . . . . . . . . . . . . 23
Dissenters' Rights of Appraisal. . . . . . . . . . . . . . . . . 23
CERTAIN PROVISIONS OF THE WISCONSIN BUSINESS CORPORATION LAW. . . . . . 24
CERTAIN RELATED TRANSACTIONS. . . . . . . . . . . . . . . . . . . . . . 25
RECENT LEGISLATION. . . . . . . . . . . . . . . . . . . . . . . . . . . 26
EXPERTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
LEGAL OPINIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SHAREHOLDER PROPOSALS . . . . . . . . . . . . . . . . . . . . . . . . . 26
CERTAIN INFORMATION CONCERNING M&I AND THE BANK . . . . . . . . . . . . 27
APPENDIX A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .A-1
APPENDIX B. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .B-1
<PAGE>
Except as contained in this Prospectus/Proxy Statement, no person has been
authorized to give any information or make any representations with respect to
the Bank of Burlington, M&I, M&I Interim Bank, the Consolidation, or the
Agreement; and, if given or made, such other information or representations,
should not be relied upon as having been authorized by the Bank of Burlington,
M&I or M&I Interim Bank. Under no circumstances should the delivery of this
Prospectus/Proxy Statement or the issuance or delivery of any shares of M&I
Stock pursuant to the Agreement create any implication that there has been no
change in the assets, properties, businesses or affairs of the Bank of
Burlington, M&I or M&I Interim Bank since the date of this Prospectus/Proxy
Statement.
AVAILABLE INFORMATION
Marshall & Ilsley Corporation ("M&I") is subject to the informational
requirements of the Securities Exchange Act of 1934, as amended (the "Exchange
Act") and in accordance therewith files proxy statements, annual reports and
other information with the Securities and Exchange Commission (the
"Commission"). Such proxy statements, reports and other information concerning
M&I can be inspected at Room 1024 of the Commission's offices at 450 Fifth
Street, N.W., Washington, D.C. 20549, and at its regional offices in New York,
New York (7 World Trade Center, Suite 1300, New York, New York, 10048) and
Chicago, Illinois (Northwestern Atrium Center, 500 West Madison Street, Suite
1400, Chicago, Illinois 60661). Copies of such material can also be obtained
from the Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549 at prescribed rates.
M&I has filed a Registration Statement on Form S-4 (together with any
amendments thereto, the "Registration Statement") under the Securities Act of
1933, as amended (the "Securities Act"), with the Commission covering the shares
of M&I Common Stock to be issued in connection with the Consolidation. As
permitted by the rules and regulations of the Commission, this Prospectus/Proxy
Statement omits certain information, exhibits and undertakings contained in the
Registration Statement, including the exhibits filed as a part thereof.
Statements contained in this Prospectus/Proxy Statement or in any documents
incorporated by reference herein as to the contents of any contract or other
document are not necessarily complete and, in each instance where such contract
or document is an exhibit to the Registration Statement or an incorporated
document, reference is made to the copy of such contract or document filed as
an exhibit to the Registration Statement or such incorporated document, each
such statement being qualified in all respect by such reference.
The Bank of Burlington (the "Bank") is subject to the informational
requirements of the Exchange Act and in accordance therewith files proxy
statements, annual reports and other information with the Board of Governors of
the Federal Reserve System (the "Federal Reserve Board"). Such proxy
statements, reports and other information concerning the Bank can be obtained
by directing a request for such to the Freedom of Information Office, Board of
Governors, Federal Reserve System, Washington, D.C. 20551, telephone number
(202) 452-3684.
DOCUMENTS ACCOMPANYING PROSPECTUS/PROXY STATEMENT
This Prospectus/Proxy Statement is accompanied by the Bank's 1993 Annual
Report to Security Holders and its Form 10-Q for the period ended September 30,
1994.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents filed by M&I with the Commission pursuant to the
Exchange Act are hereby incorporated by reference in this Prospectus/Proxy
Statement:
<PAGE>
(1) M&I's Annual Report on Form 10-K for the year ended December 31,
1993.
(2) M&I's Quarterly Reports on Form 10-Q for the quarters ended March
31, June 30, and September 30, 1994.
(3) M&I's Current Reports on Form 8-K dated February 23, 1994, May 17,
1994, May 31, 1994, and September 26, 1994.
(4) M&I's Report on Form 10-C dated May 31, 1994.
(5) The description of M&I's common stock which is contained in M&I's
registration statement filed pursuant to Section 12(g) of the
Exchange Act, and any amendment or report filed for the purpose of
updating such description.
All documents filed by M&I pursuant to Section 13(a), 13(c), 14 and 15(d)
of the Exchange Act subsequent to the date of this Prospectus/Proxy Statement
and prior to the date of the Special Meeting shall be deemed to be incorporated
by reference into this Prospectus/Proxy Statement from the dates of filing of
such documents. Any statement contained in a document incorporated or deemed
to be incorporated in this Prospectus/Proxy Statement shall be deemed to be
modified or superseded for purposes of this Prospectus/Proxy Statement to the
extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference modifies or
supersedes such statement. Any statement so modified or superseded shall not
be deemed, except as so modified or superseded, to constitute a part of this
Prospectus/Proxy Statement.
The following documents filed by the Bank with the Federal Reserve Board
pursuant to the Exchange Act are hereby incorporated by reference in this
Prospectus/Proxy Statement:
(1) The Bank's Annual Report on Form 10-K for the year ended December
31, 1993.
(2) The Bank's Quarterly Reports on Form 10-Q for the quarters ended
March 31, June 30, and September 30, 1994.
(3) Items 5, 6, 7 and 9 from the Bank's Annual Report on Form 10-K for
the year ended December 31, 1993.
THIS DOCUMENT INCORPORATES DOCUMENTS BY REFERENCE WHICH ARE NOT PRESENTED
HEREIN OR DELIVERED HEREWITH. COPIES OF THESE DOCUMENTS, OTHER THAN EXHIBITS
THERETO, ARE AVAILABLE WITHOUT CHARGE TO ANY PERSON, INCLUDING ANY BENEFICIAL
OWNER, TO WHOM THIS PROSPECTUS/PROXY STATEMENT IS DELIVERED UPON WRITTEN OR ORAL
REQUEST. WITH RESPECT TO M&I DOCUMENTS, SUCH REQUEST SHOULD BE DIRECTED TO:
MR. MICHAEL A. HATFIELD, SECRETARY, MARSHALL & ILSLEY CORPORATION, 770 NORTH
WATER STREET, MILWAUKEE, WISCONSIN 53202 (TELEPHONE: (414) 765-7801). WITH
RESPECT TO BANK DOCUMENTS, SUCH REQUEST SHOULD BE DIRECTED TO MR. JAMES R.
BAUMAN, CASHIER, BANK OF BURLINGTON, 200 SOUTH PINE STREET, P.O. BOX 600,
BURLINGTON, WISCONSIN 53105 (TELEPHONE: (414) 763-9141).
IN ORDER TO ENSURE TIMELY DELIVERY OF THE DOCUMENTS, ANY REQUEST SHOULD
BE MADE BY DECEMBER 29, 1994.
All information contained in this Prospectus/Proxy Statement relating to
M&I has been supplied by M&I and all information relating to the Bank has been
supplied by the Bank.
<PAGE>
SUMMARY
The following summarizes certain information contained elsewhere herein
or incorporated by reference in this Prospectus/Proxy Statement. The summary
is necessarily incomplete and selective and is qualified in its entirety by more
detailed information contained herein or incorporated herein by reference, which
shareholders are urged to read carefully.
Introduction.......... This Prospectus/Proxy Statement relates to the proposed
consolidation of M&I Interim Bank ("M&I Interim Bank"),
which is a wholly-owned subsidiary of M&I, with and
into the Bank, pursuant to the Agreement and Plan of
Reorganization, which is being submitted to a vote of
Bank shareholders. As a result of the Consolidation,
each share of Bank Stock (other than Bank Stock as to
which Dissenters' Rights are exercised) will be
converted into the right to receive 1.65 shares of M&I
Stock.
M&I................... M&I is a multi-bank holding company registered under
the Bank Holding Company Act of 1956, as amended (the
"BHCA"). As of September 30, 1994, M&I owned
substantially all of the outstanding capital stock of
34 banks and savings associations with over 225 offices
in Wisconsin and 12 offices in Arizona. M&I also has
a number of subsidiaries engaged in banking-related
businesses, including trust services, investment
management, commercial leasing, mortgage banking,
investment advice, brokerage services, insurance agency
services, credit card processing, data processing and
venture capital. At September 30, 1994, M&I had
consolidated total assets of approximately $12.7
billion. M&I's principal executive offices are located
at 770 North Water Street, Milwaukee, Wisconsin 53202,
and its general telephone number is (414) 765-7801.
For additional information concerning the business of
M&I and its financial condition, please refer to the
M&I documents incorporated herein by reference. See
"INCORPORATION OF CERTAIN INFORMATION BY REFERENCE."
M&I Interim Bank...... M&I Interim Bank is a wholly-owned subsidiary of M&I
organized solely for the purpose of effecting the
Consolidation.
The Bank.............. The Bank provides retail and commercial banking
services and trust services for customers in parts of
Racine, Kenosha, Walworth and Waukesha Counties in
Wisconsin. At September 30, 1994, the Bank had total
assets of approximately $171 million, loans outstanding
of approximately $112 million, total deposits of
approximately $150 million, and shareholders' equity
totalling approximately $20 million. The Bank is
located at 200 South Pine Street, P.O. Box 600,
Burlington, Wisconsin 53105, and its general telephone
number is (414) 763-9141. For additional information
concerning the business of the Bank and its financial
condition, please refer to the Bank documents
accompanying this Prospectus/Proxy Statement and the
documents incorporated herein by reference. See
"DOCUMENTS ACCOMPANYING PROSPECTUS/PROXY STATEMENT"
and"INCORPORATION OF CERTAIN INFORMATION BY REFERENCE."
<PAGE>
Time, Place and
Date of the
Special Meeting...... A special meeting of the stockholders of the Bank will
be held at 4:00 p.m. (local time) on January 12, 1995
at Richard's White Oaks, 7305 McHenry Street,
Burlington, Wisconsin 53105. See "THE SPECIAL MEETING
- General."
Purpose of
the Meeting.......... To consider and vote upon the Agreement.
Required Vote......... The affirmative vote of the holders of 2/3 of the
issued and outstanding shares of the Bank Stock is
required under the Wisconsin banking statutes to
approve and adopt the Agreement. On November 1, 1994,
there were 904,000 shares of Bank Stock outstanding,
157,491 shares of which were held by the Bank's
directors, executive officers and their affiliates.
M&I, the sole shareholder of M&I Interim Bank, has
approved the Agreement. See "THE SPECIAL MEETING -
Record Dates and Voting Rights."
Recommendation of
the Board............ The Board of Directors of the Bank has determined that
the transactions contemplated by the Agreement are in
the best interests of the Bank's shareholders and has
recommended that the shareholders approve and adopt the
Agreement. The members of the Board of Directors of
the Bank have indicated that they intend to vote all of
their shares, which represent approximately 17.4% of
the outstanding shares of Bank Stock in favor of the
Agreement. See "THE CONSOLIDATION - Reasons for
Approval of the Consolidation."
The Consolidation and
the Exchange Ratio... If the Consolidation is implemented, M&I Interim Bank
will be consolidated with and into the Bank. At the
effective time of the Consolidation (the "Effective
Time," or if reference is made to the Date on which the
Consolidation is effected, the "Effective Date"), each
share of Bank Stock outstanding immediately prior to
the Effective Time (exclusive of shares held by the
Bank's shareholders who have properly exercised
dissenters' rights under the Wisconsin banking
statutes) will be converted into the right to receive
1.65 shares of M&I Stock and cash in lieu of fractional
shares. See "THE CONSOLIDATION - General."
Required Regulatory
Approval............. Before the Consolidation may be consummated, the
transactions must be approved by the Wisconsin
Commissioner of Banking (the "WCB"), the Board of
Governors of the Federal Reserve System (the "Federal
Reserve Board") and the Federal Deposit Insurance
Corporation ("FDIC"). Federal Reserve Board approval
was received on October 11, 1994. See "THE
CONSOLIDATION - Regulatory Approvals Required."
<PAGE>
Conditions to the
Consolidation........ Consummation of the Consolidation is subject to
approval of the Agreement by the Bank's shareholders
and a number of other conditions including, without
limitation: (i) approval by the WCB, the Federal
Reserve Board and the FDIC, (ii) the receipt of certain
favorable tax opinions, (iii) the absence of any
material adverse changes in the financial condition of
the Bank, and (iv) the absence of certain litigation.
See "THE CONSOLIDATION - Conditions to the
Consolidation."
Termination of the
Agreement............ The Agreement may be terminated by the mutual consent
of the Boards of Directors of M&I and the Bank, by
either the Bank or M&I if the Consolidation is not
consummated on or before February 15, 1995, by either
the Bank or M&I if any conditions precedent to their
respective obligations under the Agreement have not
been met or satisfied, and by the Bank if there has
been a material adverse change in the consolidated
financial condition of M&I from that set forth in M&I's
balance sheet included in its Form 10-K for the year
ended December 31, 1993. See "THE CONSOLIDATION -
Termination and Amendment."
Federal Income Tax
Consequences......... Consummation of the Consolidation is conditioned upon,
among other things, receipt of opinions from the
respective counsel of the Bank and M&I covering certain
of such consequences, among them being (i) that the
Consolidation will be a "reorganization" under Section
368 of the Internal Revenue Code of 1986, as amended
(the "Code"), and (ii) that shareholders of the Bank
who receive M&I Stock will recognize no gain or loss on
the exchange of their Bank Stock for M&I Stock except
as to cash received, if any, in lieu of fractional
shares. See "THE CONSOLIDATION - Certain Federal
Income Tax Consequences."
Dissenters' Rights
of Appraisal......... Holders of Bank Stock who comply with the procedural
requirements of the Wisconsin Banking Code (the
"Banking Code") will have appraisal rights in
connection with the Consolidation ("Dissenters'
Rights"). Pursuant to Section 221.25 of the Banking
Code, holders of shares of stock entitled to notice of
a shareholders meeting at which shareholders are to
vote on a consolidation are provided, subject to
certain procedural requirements, with statutory rights
of appraisal pursuant to which such shareholders may be
entitled to receive cash in the amount of the "value"
of their shares (as determined pursuant to Section
221.25 of the Banking Code) instead of the shares or
cash in lieu of fractional shares offered pursuant to
the Consolidation. See "THE CONSOLIDATION -
Dissenters' Rights of Appraisal;" and Appendix B
hereto.
<PAGE>
Selected Per
Share Data........... The following table presents selected unaudited
historical per share data for M&I and the Bank,
selected pro forma per share data for M&I, and selected
pro forma equivalent per share data for the Bank. The
terms of the Agreement provide for holders of Bank
Stock to receive 1.65 shares of M&I Stock for each
share of Bank Stock. The selected pro forma per share
data assumes 1,491,600 shares of M&I Stock were
exchanged for 904,000 shares of Bank Stock in a
transaction accounted for as a purchase.
Historical
----------------
M&I
M&I Bank Pro Forma
--- ---- ---------
Operating Income (1)
Nine months ended September 30, 1994 $0.46(5) $1.88 $0.46
Nine months ended September 30, 1994
before merger / restructuring expense (3) 1.03(5) 1.88 1.02
Year ended December 31, 1993 1.60 2.49(4) 1.59
Cash Dividends
Nine months ended September 30, 1994 $0.44 $0.57 $0.44
Year ended December 31, 1993 0.54 0.57 0.54
Book Value
As of September 30, 1994 $10.84 $21.75 $10.98
As of December 31, 1993 11.35 20.64 11.47
- -------------------------
(1) The pro forma earnings per share computations are based on pro forma
average shares outstanding for the periods presented.
(2) The Bank pro forma equivalent represents the M&I pro forma combined
amount multiplied by the Exchange Ratio of 1.65.
(3) The earnings per share computation for the nine months ended September
30, 1994 before merger/restructuring expense excludes the $76.6 million ($59.5
after tax) expense associated with the merger with Valley Bancorporation which
was consummated in May, 1994.
(4) The Bank's operating income figure for the year ended December 31, 1993
excludes $125,000, which is the cumulative effect of a change in accounting for
income taxes.
(5) M&I's operating income for the nine months ended September 30, 1994
excludes $1.1 million which is the net extraordinary gain from required
divestitures and prepayment of debt.
Bank
Pro Forma
Equivalent (2)
--------------
Operating Income (1)
Nine months ended September 30, 1994 $0.76
Nine months ended September 30, 1994
before merger / restructuring expense (3) 1.68
Year ended December 31, 1993 2.62
Cash Dividends
Nine months ended September 30, 1994 $0.73
Year ended December 31, 1993 0.89
Book Value
As of September 30, 1994 $18.12
As of December 31, 1993 18.93
- -------------------------
(1) The pro forma earnings per share computations are based on pro forma
average shares outstanding for the periods presented.
(2) The Bank pro forma equivalent represents the M&I pro forma combined
amount multiplied by the Exchange Ratio of 1.65.
(3) The earnings per share computation for the nine months ended September
30, 1994 before merger/restructuring expense excludes the $76.6 million ($59.5
after tax) expense associated with the merger with Valley Bancorporation which
was consummated in May, 1994.
(4) The Bank's operating income figure for the year ended December 31, 1993
excludes $125,000, which is the cumulative effect of a change in accounting for
income taxes.
(5) M&I's operating income for the nine months ended September 30, 1994
excludes $1.1 million which is the net extraordinary gain from required
divestitures and prepayment of debt.
<PAGE>
Comparative Stock
Prices................ The following table represents market price per share
data for M&I Stock and Bank Stock on June 17, 1994, the
last trading day preceding the public announcement of
the proposed Consolidation and on November 17, 1994.
Historical
--------------------------- Bank
M&I Bank Equivalent Market
Stock (1) Stock(2) Value Per share(3)
--------- --------- ------------------
Market value per share
June 17, 1994 $21.00 $30.00 $34.65
November 17, 1994 $20.00 $30.00 $33.00
(1) The market value of the M&I Stock is the closing sale price per share
quoted on the NASDAQ/NMS on the dates indicated as reported in the
Midwest Edition of The Wall Street Journal.
-----------------------
(2) There is no established public trading market for the Bank Stock. This
figure represents the last known traded price per share of Bank Stock
which was traded on May 27, 1994.
(3) The equivalent market value per share amount represents the closing sale
price of a share of M&I Stock on the date presented multiplied by the
Exchange Ratio of 1.65.
Selected Historical
Financial Information...... The following tables set forth certain
historical consolidated financial information
for M&I and the Bank, respectively. This
information is based on the consolidated
financial statements of M&I and the Bank,
respectively, including the respective notes
thereto, which are incorporated by reference in
this Prospectus/Proxy Statement and should be
read in conjunction therewith. Interim
unaudited data reflect, in the opinion of
management, all adjustments necessary for a fair
presentation of such data. Results for the nine
months ended September 30, 1994 are not
necessarily indicative of results which may be
expected for any other interim period or for the
year as a whole.
<PAGE>
MARSHALL & ILSLEY CORPORATION
Selected Historical Financial Information
(In Thousands, Except Per Share Data)
For The Nine Months
Ended September 30,
-----------------------
1994 1993
-------- --------
SUMMARIZED
CONSOLIDATED
INCOME STATEMENT
DATA(1):
Net interest income $364,411 $358,725
Provision for loan losses 20,608 13,151
Other income 268,061 271,676
Other expense 443,589 420,759
Merger / restructuring 76,562 ---
Operating income (3) 46,344 127,881
PER SHARE DATA (1) (2):
Primary operating
income (3) $0.46 $1.24
Fully diluted operating
income (3) 0.46 1.19
Dividends paid 0.44 0.40
SELECTED BALANCE SHEET
DATA (1):
Total Assets $12,673,492 $12,191,839
Long-term borrowings 519,602 263,353
- -------------------------
(1) Financial information for periods ended prior to May 31, 1994 has been
restated to give effect to the merger of Valley Bancorporation with and
into M&I.
(2) M&I's per share data has been retroactively restated for a 3 for 1 stock
split in the form of a 200% stock dividend distributed to shareholders in
May, 1993.
(3) Operating income and related earnings per share are before extraordinary
items for the nine months ended September 30, 1994 and cumulative effects
of changes in accounting principles for the year ended December 31, 1992.
<PAGE>
MARSHALL & ILSLEY CORPORATION
Selected Historical Financial Information
(In Thousands, Except Per Share Data)
<TABLE>
<CAPTION>
For The Years Ended December 31,
------------------------------------------------------
1993 1992 1991 1990 1989
------- ------- ------- ------- ------
SUMMARIZED
CONSOLIDATED
INCOME STATEMENT
DATA(1):
<S> <C> <C> <C> <C> <C>
Net interest income $480,279 $472,551 $429,498 $402,461 $368,211
Provision for loan losses 18,034 23,546 28,924 47,639 19,140
Other income 371,926 328,411 276,748 228,601 203,352
Other expense 569,587 545,624 490,584 440,231 391,283
Merger / restructuring --- --- --- --- ---
Operating income (3) 171,394 156,401 130,013 100,362 115,134
PER SHARE DATA (1) (2):
Primary operating
income (3) $1.67 $1.55 $1.33 $1.03 $1.17
Fully diluted operating
income (3) 1.60 1.48 1.27 1.00 1.13
Dividends paid 0.54 0.48 0.43 0.39 0.35
SELECTED BALANCE SHEET
DATA (1):
Total Assets $12,485,937 $12,214,471 $11,595,000 $11,010,981 $10,304,651
Long-term borrowings 234,418 194,861 258,161 259,746 178,679
</TABLE>
- -------------------------
(1) Financial information for periods ended prior to May 31, 1994 has been
restated to give effect to the merger of Valley Bancorporation with and
into M&I.
(2) M&I's per share data has been retroactively restated for a 3 for 1 stock
split in the form of a 200% stock dividend distributed to shareholders in
May, 1993.
(3) Operating income and related earnings per share are before extraordinary
items for the nine months ended September 30, 1994 and cumulative effects
of changes in accounting principles for the year ended December 31, 1992.
<PAGE>
BANK OF BURLINGTON
Selected Historical Financial Information
(In Thousands, Except Per Share Data)
For the Nine Months
Ended September 30,
-------------------------------
1994 1993
------- -------
SUMMARIZED INCOME STATEMENT DATA:
Net interest income $ 4,590 $ 4,454
Provision for loan losses 5 27
Other income 621 580
Other expense 2,600 2,348
Operating income (2) 1,704 1,754
PER SHARE DATA (1):
Operating income (2) $ 1.88 $ 1.94
Dividends paid 0.78 0.57
SELECTED BALANCE SHEET DATA:
Total Assets $171,117 $161,666
Long-term borrowings N/A N/A
- -------------------------
(1) Bank per share data has been retroactively restated for two-for-one stock
splits in the form of 100 percent stock dividends distributed in June
1990 and June 1993.
(2) Operating income and related earnings per share are before cumulative
effects in accounting principles for the nine months ended September 30,
1993 and year ended December 31, 1993.
<PAGE>
BANK OF BURLINGTON
Selected Historical Financial Information
(In Thousands, Except Per Share Data)
<TABLE>
<CAPTION>
For the Years Ended December 31,
-----------------------------------------------
1993 1992 1991 1990 1989
------- ------- ------- ------- -------
SUMMARIZED INCOME
STATEMENT DATA:
<S> <C> <C> <C> <C> <C>
Net interest income $ 5,944 $ 5,669 $ 5,325 $ 4,920 $ 4,504
Provision for loan losses -- 80 196 449 357
Other income 762 802 673 709 770
Other expense 3,294 3,083 2,783 2,269 2,265
Operating income (2) 2,253 2,181 1,998 1,951 1,826
PER SHARE DATA (1):
Operating income (2) $ 2.49 $ 2.41 $ 2.21 $ 2.16 $ 2.02
Dividends paid 0.57 0.50 0.45 0.405 0.365
SELECTED BALANCE SHEET DATA:
Total Assets $172,732 $165,171 $153,415 $143,282 $132,615
Long-term borrowings N/A N/A N/A N/A N/A
</TABLE>
- -------------------------
(1) Bank per share data has been retroactively restated for two-for-one stock
splits in the form of 100 percent stock dividends distributed in June
1990 and June 1993.
(2) Operating income and related earnings per share are before cumulative
effects in accounting principles for the nine months ended September 30,
1993 and year ended December 31, 1993.
<PAGE>
THE SPECIAL MEETING
General
This Prospectus/Proxy Statement is being furnished to shareholders
of the Bank in connection with the solicitation of proxies by the Board of
Directors of the Bank for use at its Special Meeting, including any
adjournments or postponements thereof. The Bank's Special Meeting will be
held on January 12, 1995 at 4:00 p.m., local time, at Richard's White Oaks,
7305 McHenry Street, Burlington, Wisconsin 53105.
Proposals to be Considered
The Bank's Special Meeting will be held to consider and vote upon a
proposal to approve the Consolidation and to transact such other business as
may properly come before the Bank's Special Meeting.
Record Date and Voting Rights
Holders of Bank Stock at the close of business on the Record Date
(December 1, 1994) will be entitled to notice of and to vote at the Special
Meeting. Each share of Bank Stock is entitled to one vote on each proposal
presented. As of the Record Date, 904,000 shares of Bank Stock were
outstanding, of which 157,491 shares or approximately 17.4% were held by Bank
directors, executive officers and their affiliates. Directors and executive
officers of the Bank have indicated that they intend to vote their shares to
approve the Consolidation. As of the Record Date, the Bank acted in a
fiduciary capacity with respect to 124,152 shares or 13.7% of the outstanding
Bank Stock. Such shares held by the Bank in a fiduciary capacity will be
voted in accordance with the governing instruments or agreements and
applicable law and regulations.
Shares of Bank Stock representing, as of the Record Date, a majority
of the outstanding shares of Bank Stock must be represented in person or by
proxy at the Special Meeting for a quorum to be present. The affirmative
vote of the holders of 2/3 of the issued and outstanding shares of Bank Stock
as of the Record Date is required to approve the Consolidation. Abstentions
and broker non-votes will be treated as present for purposes of determining
the presence of a quorum, but have the same effect as a vote against the
proposal to approve the Consolidation.
Voting; Revocation of Proxies
Shares of Bank Stock represented by a proxy properly signed and
received at or prior to the Special Meeting, unless subsequently revoked,
will be voted in accordance with the instructions thereon. Any proxy may be
revoked by the person giving it at any time prior to the voting of the proxy
by giving written notice to the Cashier of the Bank or the acting secretary
of the meeting, or by oral notice given to the presiding officer during the
meeting. If a proxy is signed and returned without indicating any voting
instructions, such proxy will be voted FOR the proposal to approve the
Consolidation.
The Bank's Board of Directors is not aware of any business to be
acted upon at the Special Meeting other than as described herein. If, however,
other matters are properly brought before the Special Meeting, the persons
appointed as proxies will have discretion to vote thereon in accordance with
their best judgment.
Solicitation of Proxies
The enclosed proxy is being solicited by the Board of Directors of
the Bank for use in connection with the Special Meeting. The Bank will bear its
own expenses in connection with the Special Meeting. In addition to
solicitation of proxies by mail, directors, officers and employees of the
Bank may make solicitation of proxies for the Special Meeting either
personally or by telephone, telegram or other forms of communication. Such
directors, officers and employees will receive no special compensation for
any solicitation. Brokerage houses, nominees, fiduciaries and other
<PAGE>
custodians will be requested to forward soliciting materials to beneficial
owners and will be reimbursed for their customary charges and expenses.
BANK SHAREHOLDERS SHOULD NOT SEND STOCK CERTIFICATES WITH THEIR PROXY.
THE CONSOLIDATION
The following information with respect to the Agreement and Plan of
Reorganization, as amended and restated, and the related Consolidation
Agreement (collectively referred to as the "Agreement"), does not purport to
be complete and is qualified in its entirety by reference to the Agreement,
which is attached hereto as Appendix A and incorporated herein by this
reference. All shareholders of the Bank are urged to read the Agreement in
it entirety. The Agreement is being presented to the Bank's shareholders as
a single, unified proposal, encompassing all of the elements relating to the
acquisition of the Bank by M&I as hereinafter described. APPROVAL OF THE
AGREEMENT WILL CONSTITUTE APPROVAL OF EACH OF SUCH ELEMENTS, INCLUDING THE
CONSOLIDATION.
General
The Agreement provides that, subject to the requisite approval of the
shareholders of M&I Interim Bank and the Bank, the Federal Reserve Board and
any other necessary government authorities or third parties and to the
satisfaction or waiver of certain other conditions, M&I Interim Bank will be
consolidated with and into the Bank and the Bank will be the surviving bank
(the "Surviving Bank"), after which M&I Interim Bank will cease to exist (the
"Consolidation").
At the Effective Time of the Consolidation (as defined below), in
accordance with the terms of the Agreement, each outstanding share of Bank
Stock (other than "Dissenting Shares", defined below) will be converted into
the right to receive 1.65 shares of M&I Stock and cash in lieu of fractional
shares. Shares of M&I Stock and shares of the common stock of M&I Interim
Bank outstanding at the Effective Time will not be changed, cancelled,
modified or converted as a result of the Consolidation. Thus, as a result of
the Consolidation, the Bank will succeed to the assets and liabilities of M&I
Interim Bank and the Bank will become a wholly-owned subsidiary of M&I.
Effective Time
The Consolidation will become effective at the time and date the
Merger Certificate, issued by the Wisconsin Commissioner of Banking (the "WCB")
pursuant to Section 221.25 of the Banking Code, is recorded by the Register of
Deeds of Racine County, Wisconsin, which will occur as promptly as practicable
after the satisfaction of or, if permissible, waiver of all conditions to the
Consolidation Agreement (the "Effective Time" and "Effective Date",
respectively). See "- Regulatory Approvals Required." The Agreement may be
terminated by either party if, among other reasons, the Consolidation has not
been consummated on or before February 15, 1995. See "- Termination and
Amendment."
Background of the Consolidation
For the past several years, the Board of Directors of the Bank has
monitored the future of independent banks in smaller communities such as
Burlington. The Board has reviewed the potential increase in competition in
the Burlington area, the need for large capital expenditures required to
provide desired customer service and the increased rules and regulations
imposed upon the banking industry. The Board recognized the banking industry
has changed substantially in recent years with potential changes of equal or
greater magnitude for the industry. As a result, the Board created a Long-
Range Planning Committee to review the questions involving the future of the
Bank. The Committee, with the concurrence of the Board, determined that
<PAGE>
affiliation with a larger organization would aid the Bank in competitive
compliance and managerial respects as well as provide Bank shareholders with
greater liquidity and diversification for their investments.
The Committee, with the assistance of counsel, solicited expressions
of interest from major bank holding companies operating in Wisconsin. Such
solicitations produced eight bona-fide offers for acquisition of the Bank
subject to due diligence review. The Committee and the Board of Directors
narrowed the list of potential acquirors to three, including M&I. Those
three organizations were allowed to conduct due diligence and to provide a
final bid for the Bank upon completion of their due diligence review.
Representatives of the Committee also discussed acquisition of the Bank with
each of the three final bidders. Following receipt of the final bids,
additional negotiations were conducted with two of the bidders. Those
discussions resulted in the recommendation of the Committee to the Board to
approve the M&I proposal and the execution of the Letter of Intent with M&I
on April 7, 1994. The terms of the Letter of Intent were embodied in the
Agreement which was executed on June 15, 1994.
Reasons For Approval of the Consolidation
The Board of Directors of the Bank has approved the Agreement and
believes that the proposed Consolidation is in the best interests of the
Bank's shareholders. Accordingly, the Board of Directors recommends that the
shareholders of the Bank vote in favor of adoption of the Agreement for the
following reasons:
1. The Consolidation will afford the Bank the advantages of
joining a multi-bank holding company while preserving the identity of
the Bank. Because of M&I's size and financial strength, M&I has a
greater range of financing alternatives available to raise any
additional capital necessary to meet the financial requirements of the
Bank.
2. The Consolidation will permit the Bank to continue to
function with a large degree of autonomy under its own officers and its
own Board of Directors, and, in addition, will enable the Bank, through
its affiliation with M&I, to improve and expand its services and to
realize economies through centralized operations by more effectively
utilizing its present personnel and by permitting the employment of
additional skilled personnel on an economical basis, particularly in
the audit, trust, investment and data processing areas. The
affiliation with other banks owned by M&I will permit group
participation and credit extensions which will enable the Bank to
effectively handle the credit needs of businesses which might otherwise
do their banking outside the service area of the Bank.
3. The outstanding shares of M&I Stock are, and the shares
of such stock to be received in exchange for Bank Stock will be,
actively traded in the over-the-counter market, and hence enjoy greater
liquidity than shares of the Bank Stock, which are not regularly traded
in any organized market. The active trading of M&I Stock also provides
a means of valuing shares received in the exchange which is not now
available to the owners of the Bank Stock.
4. The Agreement was entered into by the Bank after full
consideration of the various factors having an effect upon a
determination of the fair value for the Bank Stock in the context of a
Consolidation transaction. In determining the amount of consideration
to be received by the shareholders of the Bank, the Board of Directors
of the Bank considered the relative financial positions and earnings
and the history of dividend payment by M&I and the Bank, the security
of diversification, as well as the prospective growth potential of M&I
and the Bank based on their respective businesses, locations and market
areas.
Consolidation Consideration
At the Effective Time, without any action on the part of any holder
of shares of Bank Stock, each share of Bank Stock issued and outstanding
immediately prior to the Effective Time will, pursuant to the Agreement, be
converted into the right to receive 1.65 shares (the "Exchange Ratio") of M&I
Stock. The Exchange Ratio is subject to adjustment in the event of an M&I
stock split, stock dividend or other similar transaction between the date of
<PAGE>
the Agreement and the Effective Time. Not included in this conversion is
Bank Stock owned by shareholders who have perfected dissenters' rights (the
"Dissenting Shares" and "Dissenting Shareholders"), whose shares shall be
cancelled upon cash payment to each such shareholder in accordance with the
provisions of Section 221.25 of the Wisconsin Statutes. For a description of
the M&I Stock to be received in connection with the Consolidation, see
"INCORPORATION OF CERTAIN INFORMATION BY REFERENCE" and for a description of
certain differences in the rights of shareholders of M&I and the Bank, see
"COMPARISON OF SHAREHOLDER RIGHTS." No fractional shares of M&I Stock will
be issued in the Consolidation. Instead, each shareholder who would
otherwise be entitled to receive a fractional share of M&I Stock will be paid
cash equal to such fraction multiplied by the closing sales price of M&I
Stock as reported in the Midwest Edition of the Wall Street Journal on the
Effective Date. See "- Conversion of Shares; Exchange of Certificates; No
Fractional Shares."
Shares of common stock of M&I Interim Bank issued and outstanding as
of the Effective Time will remain outstanding, be owned by M&I, and not changed
or converted by the Consolidation.
Conversion of Shares; Exchange of Certificates; No Fractional Shares
At the Effective Time, by virtue of the Consolidation and without any
action on the part of M&I, the Bank, or the holders of Bank Stock, each share
of Bank Stock issued and outstanding immediately prior to the Effective Time
will be converted into the right to receive 1.65 shares of M&I Stock
(excluding Bank Stock owned by Dissenting Shareholders). All such shares of
Bank Stock will no longer be outstanding and will automatically be cancelled
and retired and will cease to exist, and each certificate previously
representing any such shares of Bank Stock will thereafter represent the
right to receive a certificate representing shares of M&I Stock into which
such Bank Stock is convertible. Certificates previously representing shares
of Bank Stock will be exchanged for certificates representing whole shares of
M&I Stock upon the surrender of such certificates as provided below, without
interest. No fractional share of M&I Stock will be issued, and, in lieu
thereof, a cash payment will be made as provided below.
As soon as practicable after the Effective Time, M&I will deposit,
or cause to be deposited, with a bank or trust company designated by M&I (the
"Exchange Agent") certificates representing the shares of M&I Stock issuable
pursuant to the terms of the Consolidation Agreement to former holders of
Bank Stock at the Effective Time. M&I will also deposit with the Exchange
Agent cash to be used for payment to holders of Dissenting Shares and to
holders of fractional shares. As soon as reasonably practicable after the
Effective Time, the Exchange Agent will mail to each holder of record of a
certificate or certificates which immediately prior to the Effective Time
represented outstanding shares of Bank Stock (the "Certificates"), whose
shares of Bank Stock were converted into the right to receive shares of M&I
Stock, (i) a notice in transmittal form and (ii) instructions for use in
effecting the surrender of the Certificates in exchange for certificates
representing shares of M&I Stock. Upon surrender of a Certificate for
cancellation to the Exchange Agent together with a properly executed letter
of transmittal, the holder of such Certificate will receive a certificate
representing that number of whole shares of M&I Stock which such holder has
the right to receive in respect of the Certificate surrendered (after taking
into account all shares then held by such holder) and cash in lieu of any
fractional shares, and the Certificate so surrendered will be cancelled. In
the event of a transfer of ownership of shares of Bank Stock which is not
registered in the transfer records of the Bank, a certificate representing
the proper number of shares of M&I Stock may be issued to a transferee if the
Certificate representing such shares of Bank Stock is presented to the
Surviving Bank. A certificate evidencing shares of M&I Stock in a name other
than that in which the Certificate surrendered and exchanged is registered
may be issued if the Certificate so surrendered is properly endorsed, with
signatures guaranteed by a commercial bank or a firm having membership on a
national securities exchange, or otherwise in proper form for transfer, and
the person requesting such exchange shall pay to the Exchange Agent any
transfer or other taxes required by reason of the issuance of its certificate
for shares of M&I Stock to any person other than the registered holder of the
Certificate surrendered. Until surrendered, each Certificate will, after the
Effective Time, represent only the right to receive upon such surrender a
certificate representing shares of M&I Stock and cash in lieu of any
fractional share of M&I Stock as described below.
<PAGE>
BANK SHAREHOLDERS SHOULD NOT FORWARD THEIR STOCK CERTIFICATES TO THE
EXCHANGE AGENT UNTIL THEY RECEIVE A NOTICE IN TRANSMITTAL FORM AND
INSTRUCTIONS.
No dividends or other distributions declared, made or with a record
date after the Effective Time with respect to M&I Stock will be paid to the
holder of any unsurrendered Certificate with respect to the shares of M&I
Stock represented thereby, and no cash payment in lieu of fractional shares
will be paid to any such holder, until the holder of such Certificate
surrenders such Certificate. Subject to the effect of applicable laws,
following surrender of any such Certificate, there will be paid to the holder
of the certificates representing whole shares of M&I Stock issued in exchange
therefor, without interest, (i) promptly, the amount of any cash payable with
respect to a fractional share of M&I Stock to which such holder is entitled
and the amount of dividends or other distributions with a record date after
the Effective Time previously paid with respect to such whole shares of M&I
Stock, and (ii) at the appropriate payment date, the amount of dividends or
other distributions, with a record date after the Effective Time but prior to
surrender and a payment date occurring after surrender, payable with respect
to such whole shares of M&I Stock.
No certificates or scrip representing fractional shares of M&I Stock
will be issued upon the surrender for exchange of Certificates, no dividend
or distribution with respect to M&I Stock will be payable on or with respect
to any fractional share and such fractional share's interest will not entitle
the owner thereof to vote or to claim any rights of a shareholder of M&I.
Each holder of a fractional share interest will be paid an amount in cash
equal to the product obtained by multiplying such fractional share interest
to which such holder (after taking into account all fractional share
interests then held by such holder) would otherwise be entitled by the
closing price for a share of M&I Stock as reported in the Midwest Edition of
the Wall Street Journal on the Effective Date.
Neither the Exchange Agent nor any person, firm or entity shall be
liable to any former holder of shares of Bank Stock with respect to any M&I
Stock, or dividends thereon, or with respect to any cash to which any
shareholder would be entitled as a consequence of the Consolidation, if such
M&I Stock, dividends or cash have been paid, or are payable, to any public
official pursuant to any abandoned property, escheat or similar laws.
At the Effective Time, the stock transfer books of the Bank shall be
closed and there shall be no further registration of transfers of shares of
Bank Stock thereafter on the records of the Bank. From and after the
Effective Time, the holders of certificates evidencing ownership of shares of
Bank Stock outstanding immediately prior to the Effective Time shall cease to
have any rights with respect to such shares except as otherwise provided in
the Consolidation Agreement or by law. On or after the Effective Time, any
Certificates presented to the Exchange Agent or M&I for any reason shall be
converted into shares of M&I Stock in accordance with the terms of the
Consolidation Agreement as described above.
Representations and Warranties
The Agreement contains certain customary representations and
warranties of each of M&I and the Bank (and in certain cases also relating to
their respective subsidiaries) relating to, among other things,
(a) organization; (b) capital structures; (c) authorization, execution,
delivery, performance and enforceability of the Agreement and other related
matters; (d) the absence of material pending or threatened litigation or
governmental investigations or agreements except as otherwise disclosed in the
Agreement; and (e) full disclosure with regard to all written information
furnished pursuant to the Agreement.
With respect to the Bank only (and in certain cases, its subsidiary),
representations and warranties are contained in the Agreement relating to (a)
delivery to M&I of correct and complete copies of the Bank's financial
statements; (b) reserves for possible loan and lease losses; (c) the absence
of certain material changes or events since January 1, 1993, including
changes or events relating to the incurrence of a material adverse effect in
the business, properties or financial condition of the Bank, except as
otherwise disclosed in the Agreement; (d) good title to all assets and
properties, free of liens, except as specified; (e) compliance with laws; (f)
<PAGE>
certain tax matters; (g) certain matters relating to employment contracts and
benefits; (h) material contracts; (i) retirement and other employee plans and
matters relating to the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"); (j) certain matters relating to the conduct of the bank
since December 31, 1993; (k) the Bank's approval of the Agreement and its
recommendation to Bank shareholders to authorize and approve the Agreement;
(l) certain insurance matters; (m) the absence of any adverse contracts,
agreements or restrictions; (n) the Bank's loan schedule; and (o) the absence
of certain environmental matters, except as disclosed in the Agreement.
With respect to M&I only, representation and warranties are contained
in the Agreement which relate to documents filed with the Securities and
Exchange Commission (the "Commission") and the accuracy of the information
contained therein.
Additional Covenants and Agreements
Pursuant to the Agreement, the Bank has agreed that prior to the
Effective Time, the Bank and its subsidiary will (a) carry on their business
diligently and consistent with past practice; (b) maintain and keep their
properties in as good repair and condition as at present, except for
depreciation due to ordinary wear and tear and damage due to casualty; (c)
maintain insurance comparable in amount and in scope of coverage to that now
maintained by them; (d) perform all of their obligations under contracts,
leases and documents relating to or affecting their assets, properties and
business; (e) maintain and preserve their business organization intact,
generally retain their present employees and maintain their relationships
with customers; and (f) comply with and perform all obligations and duties
imposed upon them by federal and state laws and all rules, regulations and
orders imposed by federal or state governmental authorities.
The Bank has also agreed that prior to the Effective Time (unless the
prior written consent of M&I shall have been obtained), neither the Bank nor
its subsidiary will: (a) (i) incur or assume any material obligation or
liability, including without limitation any obligation for borrowed money
whether or not evidenced by a note, bond, debenture or similar instrument,
(ii) assume, guaranty, endorse or otherwise become liable or responsible
(whether directly, contingent or otherwise) for the obligations of any other
person; or (iii) mortgage, license, pledge or grant a security interest in
any of its material assets or allow to exist any material lien thereon;
except (A) for liabilities and obligations (including corporate debt
issuances) incurred in the ordinary course of business consistent with past
practice and in amounts not material to the Bank; or undertaken in connection
with the capital expenditures otherwise permitted under this section; and (B)
as may be required under existing agreements to which the Bank or its
subsidiary are parties; (b) change its lending, investment, liability
management and other material banking policies in any material respect;
organize any subsidiaries or enter into any new non-banking line of business
whether or not permissible under applicable federal or state law, make any
material changes in its operations or make any material investment in any
other person, firm or entity; (c) propose, adopt or permit any amendment to
its Articles of Incorporation or By-Laws or the terms of any securities
issued by it; (d) in an aggregate amount exceeding $100,000 authorize, incur
or commit to any capital expenditures other than capital expenditures
consistent with the budget heretofore furnished to and approved by M&I; (e)
(i) split, combine or reclassify any Bank Stock or 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, or any options, warrants, conversion or rights to acquire any shares
of its capital stock or any securities or obligations; (ii) merge with or
into any other corporation or bank, permit any other corporation or bank to
merge into it or consolidate with any other corporation or bank, or effect
any reorganization or recapitalization; (iii) purchase or otherwise acquire
any substantial portion of the assets, or more than 5% of any class of
capital stock, of any corporation, bank or other business; and (iv)
liquidate, sell, dispose of, or encumber any assets other than in the
ordinary course of business consistent with past practice which assets are
not material to the Bank; (f) revalue in any material respect any of its
assets, including without limitation the writing down or writing off the
value of any asset; or change its methods of accounting, except as required
by changes in generally accepted accounting principles as concurred in by
Arthur Andersen LLP, or change any of its methods of reporting income and
deductions for Federal income tax purposes, except as required by changes in
applicable law; (g) make any tax election or settle or compromise any income
tax liability material to the Bank or its subsidiary; (h) pay, discharge or
satisfy any claims, liabilities or obligations (absolute, accrued, asserted
<PAGE>
or unasserted, contingent or otherwise), other than the payment, discharge or
satisfaction in the ordinary course of business of liabilities reflected or
reserved against in, or contemplated by, the consolidated financial
statements (or the note thereto) of the Bank or incurred in the ordinary
course of business consistent with past practice; (i) (i) issue, grant, sell
or pledge any shares of its capital stock or any securities convertible into
capital stock, or permit any shares of its capital stock held in its treasury
to become outstanding, except upon exercise of rights or options outstanding
under employee benefit plans, programs or arrangements in existence on the
date hereof; (ii) confer, issue, sell, grant or award any options, warrants,
conversion or other rights not outstanding on the date hereof to acquire any
shares of its capital stock not outstanding on the date hereof, including
without limitation, the issue, sale, or grant of any option or stock
appreciation right; or (iii) amend any of the terms of any such outstanding
securities, options, warrants, rights or agreements; (j) take or suffer to
exist any of the actions described in Section 3.13 of the Agreement (relating
to the conduct of the Bank and it subsidiary since December 31, 1993); (k)
(i) enter into or adopt any new employee benefit plan or agreement, or
(except as required under existing plans or agreements) increase in any
manner the compensation or benefits of any of its officers, directors or
other employees; (ii) pay or agree to pay any pension, retirement or
severance allowance or other employee benefit not required or permitted by
any existing plan, agreement or arrangement to any director, officer or key
employee; (iii) adopt or commit itself to any additional pension, profit
sharing, bonus, incentive, deferred compensation, insurance, or other
employee benefit plan, agreement or arrangement or to any employment or
consulting agreement with or for the benefit of any director, officer or
employee; (iv) amend any such plan, agreement or arrangement; or (v) enter
into any contract, agreement or commitment to do any of the foregoing; or (l)
declare or pay any dividends on its outstanding shares of capital stock,
except for regular dividends paid in the ordinary course of business and
consistent with past practices of the Bank, and except as otherwise provided
in Section 2.07 of the Agreement. Section 2.07 of the Agreement allows the
Bank to pay cash dividends of $0.16 per share on October 1, 1994 and January
1, 1995, and the Bank is also allowed to pay a cash dividend of no more than
$0.50 per share on or before the consummation of the Consolidation.
In addition to the foregoing, the Bank has covenanted to (a) provide
M&I with certain financial statements as well as information required for
inclusion in the Registration Statement, (b) promptly (i) take all necessary
steps to hold a meeting of its shareholders for the purpose of voting on the
Agreement; (ii) include in the Prospectus/Proxy the recommendation of the
Bank's Board of Directors that the Bank's shareholders vote in favor of the
Agreement; and (iii) use its best efforts to furnish the information required
to be included by it in the Prospectus/Proxy, cause such to be mailed to its
shareholders in a timely manner and obtain the necessary approvals by the
requisite percentage of its shareholders of the Agreement; (c) afford to the
officers, attorneys, accountants and other authorized representatives of M&I
full and free access to the properties, books, contracts, commitments and
records of the Bank; (d) consult with and provide notice to the officers of
M&I with respect to certain actions and proceedings; and (e) identify all
known "affiliates" and require each to execute an agreement (the "Affiliate
Agreement") restricting the transfer of the M&I stock received by each in the
Consolidation.
M&I has also agreed to perform certain tasks in connection with the
Agreement. Specifically, M&I will (a) file the Registration Statement with
the Commission as soon as practicable after receiving from the Bank all the
necessary information regarding the Bank, and comply with all appropriate
state securities laws in connection with the Agreement; (b) file with the
Federal Reserve Board, the Wisconsin Office of the Commissioner of Banking,
the FDIC and other appropriate state and federal banking regulatory agencies
an application to complete the Consolidation and (c) promptly cause M&I
Interim Bank to be organized under the laws of the State of Wisconsin,
following which M&I will secure approval of the Consolidation by the Board of
Directors of M&I Interim Bank.
Furthermore, both M&I and the Bank agree to (a) use their reasonable
best efforts to consummate the transactions contemplated by the Agreement and
(b) certain restrictions relating to the issuance of public statements
regarding the transactions contemplated by this Agreement.
<PAGE>
No Solicitation of Transactions
The Agreement provides that neither the Bank nor any of its officers,
directors, employees, agents or representatives will, directly or indirectly,
without the prior written consent of M&I initiate contact with, solicit or
encourage any inquiries or proposals by or except as, in the written opinion
of the Bank's counsel, may be required by the fiduciary duties of the Board
of Directors of the Bank, enter into any discussions or agreements with, or
disclose directly or indirectly any information not customarily disclosed
concerning its business and properties, or afford any access to its
properties, books and records to any corporation, partnership, person or
other entity or group in connection with any possible proposal regarding a
tender offer for or sale of the Bank's capital stock or a consolidation,
merger or sale of all or a substantial portion of the assets of the Bank or
any similar transaction.
Conditions to the Consolidation
The Agreement contains certain conditions to the obligations of M&I
and the Bank to consummate the Consolidation. In addition to other customary
closing conditions, the following conditions are contained in the Agreement:
(a) M&I's and the Bank's representations and warranties contained in the
Agreement shall be true and correct in all material respects; (b) all
agreements and covenants of each of M&I and the Bank required to be performed
by it under the Agreement shall have been performed by it in all material
respects; (c) independent counsel to each party to the Agreement shall have
provided the other party with an opinion of counsel as to certain matters in
connection with the Consolidation; (d) M&I and the Bank shall each have
received an opinion of their respective counsel to the effect that the
Consolidation will be treated for federal income tax purposes as a
"reorganization" within the meaning of Section 368(a) of the Code; (e) the
holders of no more than 5% of the shares of the Bank Stock shall, at the
Closing Date, be entitled to assert statutory dissenters' appraisal rights
under Section 221.25 of the Wisconsin Statutes (with respect to the
Consolidation) unless M&I shall elect to pay any amounts which may so become
due to holders of capital stock of the Bank and such payment will not, in the
opinion of counsel to M&I, adversely affect or be inconsistent with the
opinions of counsel referred to above; (f) M&I and the Bank shall have
received Affiliate Agreements executed by Bank shareholders who have been
identified by the Bank to be "affiliates;" (g) the parties hereto shall have
received final approval of the transactions contemplated by this Agreement
from all appropriate government agencies and authorities without any
condition which is not satisfactory to M&I, all conditions required to be
satisfied prior to the Effective Time imposed by the terms of such approvals
shall have been satisfied, and all waiting periods relating to such approvals
shall have expired; (h) the Registration Statement shall be effective under
the 1933 Act prior to the Effective Time (and no stop order suspending the
effectiveness thereof shall have been issued during such period and no
proceedings for that purpose shall have been instituted or be pending at the
Effective Time) and all appropriate registrations, permits and consents
required by any state securities law (or exemptions therefrom) in connection
with this Agreement shall have been obtained and be in effect at the
Effective Time; and (i) on the Effective Date there shall not be any
litigation, investigation, inquiry or proceeding pending or threatened in or
by any court or government agency or authority which might result in an
action to restrain, enjoin or prohibit consummation of the transactions
contemplated by this Agreement, or which might result in divestiture,
rescission or damages in connection with such transactions or involving any
of the assets, properties, business or operations of the Bank which might
result in any material adverse change in the financial condition, results of
operations, business or prospects of the Bank.
In addition to the mutual conditions discussed above, M&I's
obligation to consummate the Consolidation is subject to the following
additional conditions: (a) the Consolidation shall have been approved by the
requisite percentage of the outstanding shares of the Bank Stock; (b) M&I shall
have received from the President of the Bank a certificate attesting to the
truth and accuracy of the information set forth in the Registration Statement
relating to the Bank; (c) the Bank shall have delivered to M&I the Affiliate
Agreements of those persons deemed to be "affiliates" of the Bank by M&I
counsel; (d) the Bank shall have provided M&I with statements of the Bank's
Net Earnings as of certain specified dates and such shall not be less than
$1,900,000 for any of the specified periods; (e) the total shareholders'
equity of the Bank as of the end of the month last preceding the Effective
Time shall not be less than $18,750,000, excluding adjustments; (f) the
absence of certain material adverse changes in the financial condition of the
Bank; (g) the absence of acceleration of any debt, as a result of the
<PAGE>
Consolidation, owed by the Bank, excluding that which M&I has been previously
notified of; and (h) the Bank shall make such adjustments to accounting and
income tax provisions as M&I shall deem appropriate.
Termination and Amendment
The Agreement may be terminated at any time prior to Effective Time,
whether before or after approval of the matters presented in connection with
the Consolidation by the shareholders of the Bank: (a) by mutual consent of
the Bank and M&I; (b) by either the Bank or M&I if the Consolidation is not
consummated on or before February 15, 1995; (c) by M&I only if any of the
conditions to the obligation of M&I to consummate the Consolidation have not
been met or waived; (d) by the Bank only if any of the conditions to the
obligation of the Bank to consummate the Consolidation have not been met or
waived; or (e) by the Bank only if there shall be a material adverse change
in the consolidated financial condition of M&I.
Subject to applicable law, the Agreement may be amended at any time
before or after the adoption of the Consolidation by the shareholders of the
Bank by written agreement of the Bank, and M&I, except that after such
approval of the shareholders of the Bank, no such amendment, modification or
supplement shall reduce or change the form of the consideration into which
each share of Bank Stock will be converted pursuant to the terms of the
Agreement or change any of the terms and conditions of the Agreement in a
manner which materially and adversely affects the rights of the Bank's
shareholders without the approval of such shareholders.
Accounting Treatment
The Consolidation will be accounted for by M&I under the purchase
method of accounting in accordance with Accounting Principles Board Opinion
No. 16, "Business Combinations," as amended. Under this method of
accounting, the purchase price will be allocated to assets acquired and
liabilities assumed based on their estimated fair values, and the applicable
income tax effects, at the Effective Time. Income of the combined company
will not include income (or loss) of the Bank prior to the Effective Time.
Certain Federal Income Tax Consequences
The following is a summary of certain material federal income tax
consequences of the Consolidation. The summary is provided for general
informational purposes only and does not include consequences of foreign,
state, local or other tax laws. Because each Bank shareholder's tax
circumstances may differ, each Bank shareholder should consult such
shareholder's personal tax advisor as to the tax consequences of the
Consolidation under federal, state, local or other applicable laws.
Consummation of the Merger is conditioned upon the issuance of an
opinion of counsel from each of the Bank's & M&I's respective counsel, to the
effect that, for federal income tax purposes (a) the Consolidation will
constitute a reorganization within the meaning of Section 368(a) of the
Internal Revenue Code (the "Code"), (b) no gain or loss will be recognized by
M&I, M&I Interim Bank or the Bank as a result of the Consolidation, (c) for
those Bank shareholders who receive solely M&I Stock in exchange for their
Bank Stock, no gain or loss will be recognized on such exchange except as to
any cash received in lieu of fractional shares, (d) the tax basis of the
shares of M&I Stock received by shareholders of the Bank will be the same as
the tax basis of their converted Bank Stock, reduced by any amount allocable
to any fractional share interest for which cash is received, (e) for those
Bank shareholders who receive solely cash in exchange for their Bank stock
through exercise of dissenter's rights, the receipt of cash in exchange for
such stock will be treated as a distribution in redemption of the stock by
M&I subject to the provisions and limitations of Section 302 of the Code, (f)
the holding period of the shares of M&I Stock received by Bank shareholders
in the Consolidation will include the holding period of the shares of Bank
Stock surrendered in exchange therefor, provided the Bank Stock is held as a
capital asset on the date of the exchange, (g) the payment of cash in lieu of
fractional share interests of M&I Stock will be treated as if the fractional
shares were distributed as part of the exchange and then were redeemed by M&I
subject to the provisions and limitations of Section 302 of the Code, and (h)
no condition or set of facts or circumstances will exist at the Effective
<PAGE>
Time which will either preclude any of the parties to the Agreement from
satisfying the terms of or conditions with respect to the ruling or opinion
of counsel, or result in any of the factual statements contained in the
ruling request or opinion of counsel being untrue in any material respect.
Resale of M&I Stock by Affiliates
The shares of M&I Stock to be issued to former shareholders of the
Bank upon consummation of the Consolidation have been registered under the
Securities Act. Such shares may be traded freely and without restriction by
those shareholders not deemed to be "affiliates", as such term in defined
under the Securities Act, of the Bank. "Affiliates" are generally defined as
persons who control, are controlled by, or are under common control with the
Bank. Accordingly, "affiliates" will generally include directors and
executive officers of the Bank. Shares of M&I Stock received by those
shareholders of the Bank deemed to be "affiliates" may not be sold without
registration, except as permitted by Rule 145 under the Securities Act, or as
otherwise permitted under the Securities Act. This Prospectus/Proxy
Statement does not cover resales of any M&I Stock received by "affiliates" of
the Bank. The Bank has agreed to use reasonable efforts to cause each person
identified as an affiliate of the Bank to enter into an agreement which
provides that such affiliate will not dispose of any M&I Common Stock
received in the Consolidation except in compliance with the Securities Act or
except in a transaction which, in the opinion of legal counsel reasonably
satisfactory to M&I, is exempt from registration under the Securities Act.
Dissenters' Rights of Appraisal
Under the provisions of Section 221.25 of the Banking Code, a copy
of which is attached to this Prospectus/Proxy Statement as Appendix B, any
holder of record or beneficial holder of Bank Stock has the right to dissent
from the Consolidation and demand payment of the "value" of his or her shares
in cash as determined pursuant to Section 221.25 of the Banking Code
("Dissenters' Rights"). Any shareholder who wishes to assert Dissenters' Rights
must deliver a written notice of his or her intent to exercise such rights to
Bank of Burlington, 200 South Pine Street, P.O. Box 600, Burlington, Wisconsin
53105, Attention: James R. Bauman, Cashier, within 20 days after the date that
notice is mailed or delivered to the shareholder notifying him or her of the
Wisconsin Commissioner of Banking's (the "WCB") approval of the Consolidation.
Notice of the WCB's approval of the Consolidation will be sent only to those
holders of Bank Stock that did not vote for the Consolidation. Thus, in order
to preserve your Dissenters' Rights, you must either vote against the
Consolidation at the Special Meeting or give notice in writing at or prior to
the Special Meeting that you dissent from the Consolidation. A PROXY OR VOTE
AGAINST THE CONSOLIDATION AGREEMENT WILL NOT, BY ITSELF, BE REGARDED AS A
WRITTEN NOTICE OF INTENT TO DEMAND PAYMENT FOR PURPOSES OF ASSERTING DISSENTERS'
RIGHTS.
If the Consolidation Agreement is approved by the requisite vote of
holders of Bank Stock and the Consolidation is approved by the WCB, the Bank
is required to send a notice to all shareholders of Bank Stock who did not
vote for the Consolidation, notifying them of their right to receive the
appraised value for their shares of Bank Stock. Shareholders of the Bank
desiring to exercise their rights of appraisal must notify the Bank, at the
address indicated above, within 20 days after the date that notice of the
WCB's approval of the Consolidation is mailed or delivered to the Bank
shareholder, that the shareholder dissents from the Consolidation. If the
Bank shareholder complies with these procedural requirements, the shareholder
shall be entitled to receive in cash the "value" of the Bank Stock held by
the shareholder. The "value" of the Bank Stock shall be ascertained by an
appraisal committee of three persons, one to be selected by the dissenting
shareholders, one by the directors and the third by the two so chosen (the
"Appraisal Committee"). The expense of the appraisal conducted by the
Appraisal Committee shall be borne by the Bank.
If the dissenting shareholder is dissatisfied with the Appraisal
Committee's determination of "value," such dissenting shareholder may appeal
to the WCB, who shall cause a reappraisal to be made by an appraiser or
appraisers to be named by the WCB (the "Reappraisal"). A dissenting
shareholder must make this appeal to the WCB within five days after receiving
notice of the Appraisal Committee's appraisal. If the shareholder appeals to
the WCB, the Reappraisal shall be final and binding. The expense of the
<PAGE>
Reappraisal shall be borne by the shareholder if the "value" of the Bank
Stock as determined by the Reappraisal does not exceed the "value" determined
by the Appraisal Committee, and shall be borne by the Bank if the "value"
determined by the Reappraisal exceeds the "value" determined by the Appraisal
Committee. The "value" so ascertained from the Reappraisal shall be deemed
to be a debt of the Bank, which shall pay said amount to the dissenting
shareholder. The dissenting shareholder shall surrender his or her share of
shares and, after such notice as the Bank's Board of Directors may provide,
said share or shares shall be sold at public auction within 30 days after the
final appraisement provided for by the foregoing.
In the event any holder of Bank Stock fails to perfect his or her
rights to dissent by failing to comply strictly with the applicable statutory
requirements of Section 221.25 of the Banking Code, he or she will be bound by
the terms of the Consolidation and will not be entitled to payment for his or
her shares under Section 221.25 of the Banking Code. ANY HOLDER OF BANK STOCK
WHO WISHES TO OBJECT TO THE TRANSACTION AND DEMAND PAYMENT IN CASH FOR HIS OR
HER SHARES SHOULD CONSIDER CONSULTING HIS OR HER OWN LEGAL ADVISOR.
Because an executed proxy relating to Bank Stock on which no voting
direction is made will be voted at the Special Meeting in favor of the
Consolation, a dissenting shareholder who wishes to have his or her shares of
Bank Stock represented by proxy at the Special Meeting but preserve his or
her dissenters' rights must mark his or her proxy either to vote against the
Consolidation or to abstain from voting thereon, in addition to the foregoing
requirements.
The foregoing, while a summary of all material provisions of Section
221.25 of the Banking Code, is qualified in its entirety by reference to the
text of such statutory provision, which text is set forth in its entirety in
Appendix B hereto.
One of the conditions to the Consolidation is that the holders of no
more than 5% of the shares of Bank stock will, at the Closing Date (as
defined below), be entitled to assert statutory dissenters' rights under
Section 221.25 of the Banking Code, unless M&I elects to pay any amounts which
may so become due to shareholders of Bank Stock and such payment will not, in
the opinion of counsel to M&I, adversely affect or be inconsistent with the
opinions of counsel regarding the federal income tax effects of the
Consolidation. See "- Conditions to Consolidation."
Regulatory Approvals Required
The Consolidation is subject to the approval of the Federal Reserve
Board under Section 3 of the BHCA, the WCB pursuant to Section 221.25 of the
Banking Code, and the FDIC pursuant to Section 18(c) of the Federal Deposit
Insurance Act. M&I filed the necessary applications with these regulatory
authorities in August, 1994.
With respect to approval of the Consolidation by the Federal Reserve
Board, Section 3 of the BHCA requires that the Federal Reserve Board take
into consideration, among other factors, the financial and managerial
resources and future prospects of the institutions and the convenience and
needs of the communities to be served. The BHCA prohibits the Federal
Reserve Board from approving the Consolidation (i) if it would result in a
monopoly or be in furtherance of any combination or conspiracy to monopolize
or to attempt to monopolize the business of banking in any part of the United
States or (ii) if its effect in any section of the country may be
substantially to lessen competition or to tend to create a monopoly, or if it
would in any other manner be a restraint of trade, unless the Federal Reserve
Board finds that the anti-competitive effects of the Consolidation are
clearly outweighed by the public interest and the probable effect of the
transaction in meeting the convenience and needs of the communities to be
served. The Community Reinvestment Act of 1978 also requires that the
Federal Reserve Board, in deciding whether to approve the Consolidation,
assess the record of performance of the bank subsidiaries of M&I and the Bank
in meeting the credit needs of the entire community, including low- and
moderate-income neighborhoods, served by such bank subsidiaries. The Federal
Reserve Board has also indicated that it will not approve a significant
acquisition unless the resulting institution has adequate regulatory capital,
<PAGE>
taking into account, among other things, the nature of the business and
operations and plans for expansion. Federal Reserve Board approval of the
Consolidation was received on October 11, 1994.
Pursuant to the BHCA, the Consolidation may not be consummated until
the 30th day following the date of Federal Reserve Board approval, during
which time the United States Department of Justice may challenge the
Consolidation on antitrust grounds. The commencement of an antitrust action
would stay the effectiveness of the Federal Reserve Board's approval unless a
court specifically orders otherwise.
Closing Date
The closing of the transactions contemplated by the Agreement will
be effected as soon as practicable following the satisfaction or waiver of all
the conditions to the Consolidation.
COMPARISON OF SHAREHOLDER RIGHTS
The following is a summary of material differences between the rights
of holders of M&I Stock and the rights of holders of the Bank Stock prior to
the Consolidation. As both M&I and the Bank are organized under the laws of
Wisconsin, rights of shareholders are substantially similar. Differences in
the rights provided to shareholders of M&I and the Bank exist because the
former is organized under the Wisconsin Business Corporation Law (the "WBCL")
while the latter is organized under the Wisconsin Banking Code (the "Banking
Code"). This summary does not purport to be a complete discussion of and is
qualified in its entirety by reference to the governing law and the articles
of incorporation, by-laws and contractual commitments of each entity.
Required Vote for Authorization of Certain Transactions
M&I. Pursuant to Section 180.1706(1) of the WBCL, except as
otherwise provided in a corporation's articles of incorporation or by-laws, any
amendment to the articles of incorporation, merger or certain other
extraordinary events involving a corporation organized before January 1,
1973, which did not expressly elect before January 1, 1991 to be governed by
a majority or greater voting requirement, must be approved by the affirmative
vote of two-thirds of the shares entitled to vote at a meeting called for
that purpose. The M&I Articles were amended prior to January 1, 1991 to
reduce the vote required for a merger, consolidation or certain other
extraordinary events to a majority vote of the M&I capital stock entitled to
vote, provided that three-quarters of the M&I Board of Directors shall have
approved the transaction. The M&I Articles were not amended prior to January
1, 1991 to reduce the vote required to amend the M&I Articles. Consequently,
any amendment to the M&I Articles requires the affirmative vote of two-thirds
of the outstanding shares of M&I capital stock entitled to vote at a meeting
called for that purpose.
Bank. Pursuant to Section 221.12 of the Banking Code, any amendment
to the articles of incorporation of a state chartered bank must be approved by
the affirmative vote of two-thirds of the capital stock entitled to vote at a
meeting called for that purpose. Furthermore, Section 221.25 of the Banking
Code provides that any two or more state chartered banks, may, with the approval
of the WCB and the vote of the shareholders of each such bank owning at least
two-thirds of the capital stock entitled to a vote at a meeting called for
that purpose, consolidate into one bank.
Amendment of By-laws
M&I. M&I's Articles of Incorporation and By-laws provide that M&I's
By-laws may be amended only by the affirmative vote of not less than two-
thirds of the outstanding shares of capital stock of M&I entitled to vote at
a meeting of shareholders duly called for such purpose, or by a vote of not
less than three-quarters of the entire Board of Directors then in office.
<PAGE>
Bank. The Bank's By-laws provide that its By-laws may be amended in
any manner permitted by law at the time the By-laws are to be amended.
Pursuant to Section 221.04 of the Banking Code, an affirmative vote of
two-thirds of the capital stock of the Bank is currently required to amend the
Bank's By-laws.
Size, Classification of, and Vote Required to Elect Board of Directors
M&I. The M&I Articles and By-laws provide that the M&I Board of
Directors will consist of not less than three directors (exclusive of
directors, if any, elected by the holders of one or more classes of series of
M&I Preferred Stock pursuant to the M&I Articles applicable thereto), the
exact number of which to be determined from time to time by resolution
adopted by an affirmative vote of a majority of the entire Board of Directors
then in office. M&I's Board of Directors is classified into three classes,
with directors serving staggered three-year terms. The M&I By-laws provide
that directors are to be elected by a plurality of the votes cast by the
capital stock entitled to vote in the election.
Bank. The Bank's By-laws provide that the Bank's Board of Directors
will consist of not less than seven nor more than 15 directors, the exact
number of which to be determined by the Bank's stockholders at their annual
meeting. The Bank's Articles of Incorporation and By-laws do not provide for
the classification of its Board of Directors. However, each director shall
hold office for one year and until the director's successor has been elected
or until the director's earlier death, resignation, attainment of age 65 or
removal. The Bank's By-laws provide that a majority of the capital stock
represented at a meeting shall be necessary for the election of each
director.
Removal of Directors for "Cause"
M&I. Exclusive of directors, if any, elected by holders of one or
more classes of M&I Preferred Stock, shareholders of M&I may remove a director
only for "cause" and then only by a vote of two-thirds of the outstanding
shares of capital stock of M&I entitled to vote at a meeting of shareholders
called for that purpose. "Cause" is defined solely as malfeasance arising
from the performance of a director's duties which has a materially adverse
effect on the business of M&I.
Bank. The Bank's By-laws provide that a director may be removed from
office by the affirmative vote of a majority of the capital stock represented
at a special meeting called for that purpose, with or without "cause".
Newly Created Directorships and Vacancies on the Board of Directors
M&I. Pursuant to Section 180.0810 of the WBCL, unless otherwise
provided in a corporation's Articles of Incorporation, shareholders may fill
vacancies on a corporation's Board of Directors. The M&I Articles and By-laws
provide that newly created directorships and any vacancies on M&I's Board of
Directors shall be filled by the majority vote of the Board of Directors.
Bank. The Bank's By-laws and Section 221.08(5) of the Banking Code
authorize the Board of Directors to fill vacancies on the Bank's Board of
Directors until the next succeeding election of directors.
Advance Notice of Proposals to be Brought at the Annual Meeting
M&I. Pursuant to Section 2.5 of the M&I By-laws, any shareholder
who intends to bring business before an annual meeting of shareholders (other
than nominations for directors) must provide M&I with notice of such intention,
the nature of such proposal, the reasons for conducting such business at the
annual meeting and certain information regarding the shareholder bringing the
proposal not less than 60 days prior to the meeting.
Bank. The Bank's Articles of Incorporation and By-laws do not
contain any provisions relating to advance notice of proposals to be brought
before an annual meeting.
<PAGE>
Advance Notice of Nominations of Directors
M&I. Pursuant to Article VI of the M&I Articles and Section 2.6 of
the By-laws, any shareholder who intends to nominate directors for election at
a meeting called for that purpose must provide M&I with notice of such
intention, a written consent of the nominee to serve as a director, certain
information regarding the proposed nominee and certain information regarding
the nominating shareholder not less than 30 days prior to the meeting.
Bank. Neither the Bank's Articles of Incorporation nor its By-laws
contain any provisions relating to advance notice of nominations of
directors.
Certain Business Combinations
M&I. Article XI of M&I's Articles provides that an affirmative vote
of 80% of M&I's outstanding capital stock entitled to vote in the election of
directors, or two-thirds of the shares entitled to so vote excluding shares
of M&I capital stock held by an "interested stockholder" (as hereinafter
defined), is required to approve a merger, consolidation or other business
combination involving M&I, or any subsidiary, and any interested stockholder
or an affiliate or associate of an interested stockholder (excluding M&I or
any subsidiary thereof or employee benefit plan for the benefit of employees
of M&I or its subsidiaries). An interested stockholder refers to (a) the
beneficial owner of more than 10% of M&I's outstanding capital stock entitled
to vote, (b) an affiliate or associate of M&I that at any time within the two
year period preceding the combination was a beneficial owner of 10% or more
of the outstanding M&I capital stock entitled to vote or (c) an assignee of
or successor to any M&I capital stock entitled to vote previously
beneficially owned within the two year period preceding the combination by
another interested stockholder, if such assignment or succession shall have
occurred in the course of a transaction not involving a public offering
within the meaning of the Securities Act. These provisions of the M&I
Articles do not apply if (a) the consideration offered in connection with
such transaction satisfies certain "fair price" requirements or (b) a
majority of the "disinterested directors" (defined as a director who is not
affiliated with the interested stockholder and who either was (i) a member of
the Board of Directors prior to the date that the interested stockholder
became such or (ii) elected or recommended for election by a majority of the
disinterested directors in office at the time such director was nominated for
election) approves the transaction.
Bank. Neither the Bank's Articles of Incorporation nor its By-laws
contain any supermajority voting provisions relating to the approval by
holders of its capital stock of mergers, consolidations or other business
combinations.
Dissenters' Rights of Appraisal
M&I. Pursuant to Section 180.1302 of the WBCL, dissenters' rights
of appraisal are provided when a corporation consummates (i) a plan of merger,
if shareholder approval is required by statute or by the corporation's
articles of incorporation, or if the corporation is a subsidiary that is
merged with its parent; (ii) a plan of share exchange, if the corporation's
shares will be acquired and shareholder approval is required; or (iii) a sale
or exchange of all, or substantially all, of the corporation's property other
than in the usual and regular course of business including a sale in
dissolution, but not including a sale pursuant to a court order or a sale for
cash pursuant to a plan by which all or substantially all of the net proceeds
of the sale will be distributed to the shareholders within one year after the
date of sale. However, no such rights are provided if (i) the shares of the
corporation are listed on a national securities exchange or quoted on NASDAQ,
or (ii) the corporation is undergoing a reorganization, unless the
reorganization plan provides otherwise. The foregoing exceptions
notwithstanding, the WBCL provides dissenters' rights of appraisal in
connection with certain business combinations involving a corporation and an
"interested stockholder." See "- Certain Business Combinations."
Bank. Pursuant to Section 221.25 of the Banking Code, dissenters'
rights of appraisal are provided when any two or more banks consolidate into
one bank.
<PAGE>
CERTAIN PROVISIONS OF THE WISCONSIN BUSINESS CORPORATION LAW
The following is a description of certain provisions applicable to
Wisconsin corporations, such as M&I. These provisions are not, however,
applicable to Wisconsin banks, such as the Bank.
The WBCL provides that shareholders of Wisconsin domestic
corporations are personally liable, up to the par value of their shares ($1.00
per share in the case of the M&I Stock), for all debts owed by the corporation
to employees for services performed but not exceeding six months' service in any
one case. While the WBCL specifies that such liability is limited to the par
value of the shares, par value has been interpreted by a Wisconsin court to
mean the consideration paid to the corporation for its shares.
The WBCL prohibits a "business combination" (defined to include a
merger, share exchange or a disposition of 5% or more of the aggregate market
value of all assets or stock of the corporation) between a "resident domestic
corporation" and an "interested stockholder" (defined as the beneficial owner
of at least 10% of the voting power of the outstanding stock) for three years
following the stock acquisition date (i.e., the date the person became an
interested stockholder), unless the board of directors approves the business
combination or the purchase of stock by the interested stockholder before the
stock acquisition date. Business combinations after the three-year period
following the stock acquisition date are permitted only if (i) the board of
directors approved the acquisition of the stock prior to the stock
acquisition date; (ii) the business combination is approved by a majority of
the outstanding voting stock not beneficially owned by the interested
stockholder; or (iii) the consideration to be received by shareholders meets
certain requirements of the statute with respect to form and amount. M&I is
a "resident domestic corporation" within the meaning of the WBCL.
Under the WBCL, the voting power of shares of an "issuing public
corporation" held by any person or persons acting as a group in excess of 20%
of the voting power in the election of directors is limited (in voting on any
matter) to 10% of the full voting power of those excess shares. An issuing
public corporation is defined as a domestic corporation, with (i) total
assets exceeding $1,000,000; (ii) a class of equity securities held of record
by 500 or more persons; and (iii) at least 100 shareholders of record who
have unlimited voting rights and who reside in Wisconsin. M&I is an
"issuing public corporation" within the meaning of the WBCL. This
restriction does not apply to shares acquired (a) under an agreement entered
into before the corporation was an "issuing public corporation," (b) directly
from the issuing public corporation, (c) in a merger or share exchange to
which the issuing public corporation is a party, (d) in certain specified
non-market transactions (i.e., gifts, distributions upon death and pledges)
or (e) in a transaction incident to which the corporation's shareholders have
approved restoration of the full voting power of the otherwise restricted
shares.
The WBCL provides that, in addition to the vote otherwise required
by law or the articles of incorporation of an "issuing public corporation"
(defined above), the approval by a majority vote of the holders of the
corporation's shares entitled to vote is required before such corporation can
take certain actions while a "takeover offer" (as defined in the WBCL) is
being made or after a takeover offer has been publicly announced and before
it is concluded. Under the WBCL, such shareholder approval is required for
the corporation to (i) acquire more than 5% of the corporation's outstanding
voting shares at a price above the market price from any individual or
organization that owns more than 3% of the outstanding voting shares and has
held such shares for less than two years, unless a similar offer is made to
acquire all voting shares or (ii) sell or option assets of the corporation
which amount to at least 10% of the market value of the corporation, unless
the corporation has at least three independent directors and a majority of
the independent directors vote not to have this provision apply to the
corporation.
The WBCL also provides for certain super-majority voting and fair
price provisions in connection with certain business combinations substantially
similar to provisions contained in M&I's Articles. See "- Certain Business
Combinations."
<PAGE>
Under the WBCL, in discharging his or her duties to the corporation
and in determining what he or she believes to be the best interests of the
corporation, a director or officer may, in addition to considering the
effects of any action on the corporation's shareholders, consider the effects
of the action on employees, suppliers, customers, the communities in which
the corporation operates and any other factors that the director or officer
considers pertinent.
CERTAIN RELATED TRANSACTIONS
Pursuant to the Agreement, the Board of Directors and principal
officers of the Surviving Bank as of the Effective Time will consist of the
persons who are the directors and principal officers of the Bank immediately
prior to the Effective Time. Such persons will serve as directors and
principal officers of the Surviving Bank until the next annual meeting of the
Surviving Bank or until such time as their successors have been duly
qualified and elected or appointed in accordance with the Articles of
Incorporation and By-Laws of the Surviving Bank.
The Bank currently has employment agreements with two of its
executive officers, Mr. Wenke and Mr. Bauman, which will continue in effect
following the Consolidation. Mr. Wenke's agreement provides that the Bank will
employ him as President and Chief Executive Officer of the Bank until October
31, 1995. Mr. Wenke's current salary is $134,978. Mr. Bauman's agreement
provides that the Bank will employ him as Executive Vice-President of the
Bank until February 28, 1996. Mr. Bauman's current salary is $76,260.
Under the above-mentioned employment agreements, upon a "change of
control," as defined in the respective agreements, the executive has a right
to terminate his employment and receive certain payments if certain events
occur. With respect to Mr. Wenke, these events include any of the following:
(1) except for the last three months of the term of his employment, he is
assigned to any positions, duties or responsibilities which are less
significant than his positions, duties and responsibilities as of February 1,
1993; (2) his compensation is reduced or not adjusted upward commensurate
with increases given to other executive or key management personnel of the
Bank (or any surviving entity) or he experiences, in any year, a reduction in
the ratio of his bonus payment to his compensation which is greater than the
average reduction in the ratio of bonus payments to compensation in such year
experienced by all other executive or key management personnel of the Bank
(or any surviving entity) eligible for such bonus payments; or (3) he is
transferred to a location outside a 20 mile radius of the City of Burlington,
Wisconsin. With respect to Mr. Bauman, these events include any of the
following: (1) he is assigned to any positions, duties or responsibilities
which are less significant than his positions, duties and responsibilities as
of November 1, 1993; (2) his compensation is reduced or not adjusted upward
commensurate with increases given to other executive or key management
personnel of the Bank (or any surviving entity) or he experiences, in any
year, a reduction in the ratio of his bonus payment to his compensation which
is greater than the average reduction in the ratio of bonus payments to
compensation in such year experienced by all other executive or key
management personnel of the Bank (or any surviving entity) eligible for such
bonus payments; or (3) he is transferred to a location outside a 35 mile
radius of the City of Burlington, Wisconsin.
The Consolidation will be a "change of control" under the employment
agreements. Thus, if any of the above-listed events occur after the
Consolidation, the officer in question may terminate his employment, with 90
days written notice, and receive in a lump sum payment all compensation and
other benefits, except for bonuses, to which he would have been entitled
under his employment contract with the Bank through the end of the term of
such employment contract, or one year from the effective date of the
termination, whichever occurs first. The officer will also receive all other
fringe benefits to which he would have been otherwise entitled under the
fringe benefit plans as in effect on the date of his termination.
<PAGE>
RECENT LEGISLATION
The Riegle-Neal Interstate Banking and Branching Efficiency Act
of 1994 became effective on September 29, 1994 (the "Interstate Banking
Act"). The Interstate Banking Act amends the Bank Holding Company Act to
permit, as of September 29, 1995 and with certain limitations, adequately
capitalized and managed bank holding companies to acquire control, or all the
assets, of banks located in a state other than the home state of the bank
holding company. The Interstate Banking Act also amends the Federal Deposit
Insurance Act to permit, as of June 1, 1997 and with certain limitations,
merger transactions between adequately capitalized and managed insured banks
with different home states. The provisions of the Interstate Banking Act
generally increase the ease with which banks and bank holding companies may
acquire banks across state lines, and may increase the pace of consolidation
in the banking industry and the competition for independent banks.
EXPERTS
The consolidated financial statements of M&I, incorporated in this
Prospectus/Proxy Statement by reference, have been audited by Arthur Andersen
LLP, independent public accountants, as indicated in their report with
respect thereto, and are incorporated by reference in this Prospectus/Proxy
Statement in reliance upon the authority of said firm as experts in
accounting and auditing in giving said report.
The consolidated financial statements of the Bank, incorporated in
this Prospectus/Proxy Statement by reference, have been examined by KPMG Peat
Marwick LLP, independent public accountants, as set forth in their report
with respect thereto, and are incorporated by reference in this
Prospectus/Proxy Statement in reliance upon the authority of such firm as
experts in accounting and auditing in giving said report.
LEGAL OPINIONS
A legal opinion to the effect that the issuance of the shares of M&I
Stock offered hereby has been duly authorized by M&I and that the shares,
when issued in accordance with the Agreement, will be duly issued and
outstanding, fully paid and nonassessable (except as provided by Section
180.0622 of the WBCL), has been rendered by Godfrey & Kahn, S.C., Milwaukee,
Wisconsin.
In addition, a legal opinion to the effect that the consolidation
will be treated for federal income tax purposes as a "reorganization" within the
meaning of Section 368(a) of the Code, has been rendered by Godfrey & Kahn,
S.C., Milwaukee, Wisconsin, and Michael, Best & Friedrich, Milwaukee,
Wisconsin, counsel for M&I and the Bank, respectively.
SHAREHOLDER PROPOSALS
If the Consolidation is consummated, shareholders of the Bank will
become shareholders of M&I. M&I's next Annual Meeting will be held April 25,
1995. In accordance with M&I's By-Laws, nominations, other than by or at the
direction of the M&I Board of Directors, of candidates for election as
directors at the 1995 Annual Meeting must be submitted to M&I not later than
March 27, 1995. In addition, any M&I shareholder who wishes to submit a
proposal for presentation to the 1995 Annual Meeting of Shareholders of M&I
must submit the proposal in writing to M&I, 770 North Water Street,
Milwaukee, Wisconsin 53202, Attention: M.A. Hatfield, Secretary, by November
19, 1994 for inclusion, if appropriate, in M&I's proxy statement and the form
of proxy relating to the 1995 Annual Meeting. To avoid disputes as to the
date of receipt, it is suggested that any shareholder proposal be submitted
by certified mail, return receipt requested.
<PAGE>
CERTAIN INFORMATION CONCERNING
M&I AND THE BANK
Information regarding the names, ages, positions and business
backgrounds of the executive officers and directors of M&I and the Bank,
respectively, as well as additional information, including executive
compensation, security ownership of certain beneficial owners and management
and certain relationships and related transactions, is incorporated herein by
reference to their respective Annual Reports on Form 10-K for the year ended
December 31, 1993.
<PAGE>
APPENDIX A
AGREEMENT AND PLAN OF REORGANIZATION
(as amended and restated)
THIS AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement") dated as
of the 15th day of June, 1994, as amended, by and between Marshall & Ilsley
Corporation, a Wisconsin corporation (the "Corporation") and Bank of Burlington,
a Wisconsin state bank (the "Bank").
W I T N E S S E T H:
This Agreement provides for: (i) the incorporation and organization
of a new Wisconsin state bank ("M&I Interim Bank") under the laws of the State
of Wisconsin which will, at the time of consummation of the transactions herein
provided, be a subsidiary of and controlled by the Corporation within the
meaning of Section 368(c) of the Internal Revenue Code of 1986, as amended (the
"IRC"); (ii) the consolidation of M&I Interim Bank with and into the Bank in
accordance with applicable law and pursuant to the terms of this Agreement and
the Consolidation Agreement, attached hereto as Annex A (the "Consolidation
Agreement"), between the Bank and M&I Interim Bank, which consolidation will
qualify as a tax-free reorganization pursuant to the provisions of Sections
368(a)(l)(A) and 368(a)(2)(E) of the IRC; and (iii) the conversion at the
Effective Time of such consolidation (as defined herein) of the Bank's
outstanding shares of common stock, $1.25 par value, ("Bank Stock") into the
right to receive shares of the Corporation's $1.00 par value common stock (the
"M&I Stock"), all upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants,
representations, warranties and agreements herein contained, the parties hereto
agree as follows:
ARTICLE I
CONSOLIDATION OF M&I INTERIM BANK WITH AND INTO BANK
Section 1.01. Consolidation. In accordance with the provisions of
this Agreement, the Consolidation Agreement and applicable law, M&I Interim Bank
shall be consolidated with and into the Bank (which as the receiving association
is herein referred to as the "Surviving Bank") under the charter of the Bank,
and the separate existence of M&I Interim Bank shall cease (the
"Consolidation"). The Consolidation shall become effective at the date and time
the Merger Certificate issued by the Wisconsin Office of the Commissioner of
Banking pursuant to Section 221.25 of the Wisconsin Statutes is recorded by the
Register of Deeds of Racine County, Wisconsin (the "Effective Date" and
"Effective Time," respectively).
<PAGE>
Section 1.02. The Receiving Association. After the Effective Time
the name of the Surviving Bank shall be "M&I Bank of Burlington." The Surviving
Bank shall continue its existence under the laws of the State of Wisconsin as
a wholly-owned subsidiary of the Corporation.
Section 1.03. Business. The business of the Surviving Bank shall
be that of a Wisconsin state bank and shall be conducted at the Surviving Bank's
main office to be located at 200 South Pine Street, Burlington, Wisconsin 53105,
and at the legally established branches of the Surviving Bank.
Section 1.04. Board of Directors; Officers. The Board of Directors
and principal officers of the Surviving Bank as of the Effective Time shall
consist of the persons who are the directors and principal officers of the Bank
immediately prior to the Effective Time. Such persons shall serve as directors
and principal officers of the Surviving Bank until the next annual meeting of
the Surviving Bank or until such time as their successors have been duly
qualified and elected or appointed in accordance with the By-Laws of the
Surviving Bank.
Section 1.05. Effect of Consolidation. All assets of M&I Interim
Bank, as they exist at the Effective Time, shall pass to and vest in the
Surviving Bank without any conveyance or other transfer and the Surviving Bank
shall be responsible for all liabilities of M&I Interim Bank. At any time after
the Effective Time the officers of the Surviving Bank may, in the name of M&I
Interim Bank, execute and deliver all such deeds, assignments and other instru-
ments and take or cause to be taken all actions as the Surviving Bank may deem
necessary or desirable in order to vest, perfect or confirm in the Surviving
Bank title to and possession of all of M&I Interim Bank's property, rights,
privileges, immunities, powers, purposes and otherwise to carry out the purposes
of this Agreement.
Section 1.06. Closing. The closing of the transactions contemplated
by this Agreement shall occur as promptly as practicable following the
satisfaction or waiver of all of the conditions specified in Article VI of this
Agreement (the "Closing"). The Closing shall take place at the offices of
counsel to the Corporation, 780 North Water Street, Milwaukee, Wisconsin, or at
such other place as shall be mutually agreeable to the Corporation and the Bank.
ARTICLE II
STATUS AND CONVERSION OF SECURITIES
Section 2.01. Capital Stock of M&I Interim Bank. The capital stock
of the Surviving Bank shall be the capital stock of M&I Interim Bank, and each
share of common stock of M&I Interim Bank issued and outstanding as of the
Effective Time shall remain outstanding and shall be owned by the Corporation
and such shares shall not be changed or converted by the Consolidation.
<PAGE>
Section 2.02. Conversion of Bank Stock. Subject to the conditions
and limitations set forth in this Agreement, at the Effective Time, by virtue
of the Consolidation and without any action on the part of any holder of shares
of Bank Stock:
(a) All Bank Stock owned by the Bank shall be cancelled and no M&I
Stock or cash shall be delivered in exchange therefor;
(b) Each outstanding share of Bank Stock as to which stockholders
pursuant to Section 221.25 of the Wisconsin Statutes: (i) have voted against
adoption and approval of the Consolidation or given notice in writing at or
prior to the taking of such vote that they dissent from the Consolidation; and
(ii) within 20 days after the date the notice of approval of the Consolidation
by the Wisconsin Office of Commissioner of Banking is mailed or delivered to
such stockholder, and such stockholder notifies the Bank that he dissents from
the Plan of Consolidation as adopted and approved and desires to withdraw from
the Bank, shall not be converted into M&I Stock hereunder (such shares of Bank
Stock are referred to as "Dissenting Shares"). Upon receipt by the Bank, the
Bank promptly shall notify the Corporation of any such written objection to the
Consolidation by any Bank stockholder (a "Dissenting Stockholder"). Prior to
the Effective Time the Bank shall not, except with prior written consent of the
Corporation, voluntarily make any payment with respect to or settle or offer to
settle any such objection. Each Dissenting Stockholder who becomes entitled,
pursuant to the provisions of Section 221.25, to payment for Bank Stock shall
receive payment therefor from the Surviving Bank from funds provided by the
Corporation (but only after the amount thereof shall have been agreed upon or
finally determined pursuant to the provisions of the laws of the State of
Wisconsin) and such shares of Bank Stock shall be cancelled. If any Dissenting
Stockholder shall fail to perfect or shall effectively withdraw or lose the
right to appraisal of payment for shares of Bank Stock under Section 221.25,
such shares shall be thereupon converted into M&I Stock in accordance with the
provisions of Sections 2.02 and 2.03 hereof; and
(c) Each share of Bank Stock (except shares described in
subparagraph (a) hereof and Dissenting Shares) issued and outstanding as of the
Effective Time shall by virtue of the Consolidation and without any action on
the part of the holder thereof be converted into the right to receive One and
Sixty Five Hundredths (1.65) shares of M&I Stock.
Section 2.03. No Fractional Shares. No fractional shares of M&I
Stock shall be issued upon the surrender for exchange of certificates; no
dividend or distribution with respect to M&I Stock shall be payable on or with
respect to any fractional share; and no fractional share interest shall entitle
the owner thereof to any rights of a shareholder of M&I. In lieu of any such
fractional share, M&I shall pay to each former shareholder who otherwise would
be entitled to receive a fractional share of M&I Stock an amount in cash
determined by multiplying: (i) the closing sales price of M&I Stock as reported
in the Midwest Edition of the Wall Street Journal on the Effective Date by (ii)
the fraction of a share of M&I Stock to which such holder would otherwise be
entitled.
<PAGE>
Section 2.04. Payment of Consolidation Consideration.
(a) As soon as practicable after the Effective Time, the
Corporation shall make available to M&I Interim Bank, which in turn shall make
available to M&I Marshall & Ilsley Bank or other financial institution which
shall be designated by the Corporation as Exchange Agent (the "Exchange Agent")
certificates representing the shares of M&I Stock into which the Bank Stock
shall be converted pursuant to Section 2.02. The Corporation also shall make
available to M&I Interim Bank at the Effective Time, which in turn shall make
available to the Exchange Agent, the cash payable to Dissenting Shareholders (to
the extent known), plus the cash necessary to make all required payment for
fractional shares pursuant to Section 2.03, above.
(b) As soon as practicable after the Effective Time, the Exchange
Agent will send a notice and transmittal form to each holder of a certificate
which formerly represented Bank Stock prior to the Consolidation, advising such
holder of the terms of the exchange effected by the Consolidation and the
procedure for surrendering to the Exchange Agent such certificate for exchange
into one or more certificates evidencing shares of M&I Stock and/or cash (as to
fractional or Dissenting Shares). Until so surrendered, each outstanding
certificate will be deemed for all purposes to evidence the right to receive
cash (as to fractional or Dissenting Shares) and/or the ownership of the number
of full shares of M&I Stock as provided herein; provided, however, that until
such certificates are so surrendered, no dividend payable to holders of record
of shares of M&I Stock as of any date subsequent to the Effective Time shall be
paid to the holder or holders of such certificates in respect to M&I Stock
represented thereby. After the Effective Time, there shall be no further
registry of transfers on the records of the Bank of the Bank Stock and, if a
certificate representing such Bank Stock is presented to the Surviving Bank for
transfer, it shall be cancelled and exchanged for a check in the appropriate
amount and/or a certificate representing the appropriate number of shares of M&I
Stock as herein provided. Upon surrender of certificates for the Bank Stock
which have been converted into shares of M&I Stock, there shall be paid (without
interest) to the record holder of the certificates for M&I Stock issued and
exchanged therefor: (i) on or as soon as practicable after such date of
surrender, the amount of dividends which as of any date subsequent to the
Effective Time became payable and were not paid to such holder with respect to
such shares of M&I Stock; and (ii) on the appropriate payment date occurring
subsequent to the date of surrender, the amount of such dividends, if the record
date in respect thereof occurred after the Effective Time but prior to the date
of surrender. Notwithstanding any provision of this Agreement, neither the
Exchange Agent nor any person, firm or entity shall be liable or obligated to
any former holder of any share of the Bank Stock (or to anyone claiming through
any such former holder) with respect to any M&I Stock, or dividends thereon, or
with respect to any cash to which any such holder would be entitled as a
consequence of the Consolidation, if such M&I Stock, dividends or cash have been
paid, or are payable, to any public official pursuant to any abandoned property,
escheat or similar laws.
Section 2.05. Certificates in Other Names. A certificate evidencing
shares of M&I Stock in a name other than that in which the certificate
surrendered and exchanged is registered may be issued if the certificate so
<PAGE>
surrendered shall be properly endorsed, with signatures guaranteed by a
commercial bank or a firm having membership on a national securities exchange,
or otherwise in proper form for transfer, and the person requesting such
exchange shall pay to the Exchange Agent any transfer or other taxes required
by reason of the issuance of its certificate for shares of M&I Stock to any
person other than the registered holder of the certificate surrendered or
establish to the satisfaction of the Exchange Agent that such tax has been paid
or is not applicable.
Section 2.06. Anti-Dilution Adjustment. If, subsequent to the date
hereof and prior to the Effective Time, the Corporation shall pay a dividend or
make a distribution on M&I Stock in shares of M&I Stock or any security
convertible into M&I Stock or shall combine or subdivide its stock, then in each
such case, from and after the record date for determining the shareholders
entitled to receive such dividend or distribution or the securities resulting
from such combination or subdivision, an appropriate adjustment shall be made
to the conversion ratio set forth in Section 2.02 hereof, for purposes of
determining the number of shares of M&I Stock into which Bank Stock shall be
converted. For the purpose hereof, the payment of a dividend in or distribution
on M&I Stock in securities convertible into M&I Stock shall be deemed to have
effected an increase in the number of outstanding shares of M&I Stock equal to
the number of shares of M&I Stock into which such securities shall be initially
convertible without the payment by the holder thereof of any consideration other
than the surrender for cancellation of such convertible securities.
Notwithstanding the foregoing, this Section shall not apply to any stock options
issued under option plans of the Corporation whether or not authorized as of the
date of this Agreement.
Section 2.07. Dividend Payment and Integration. Before the
Closing Date, the Bank may pay dividends as follows:
(a) On October 1, 1994, a cash dividend equal to sixteen cents
($0.16) per share to Bank shareholders of record as of September 30, 1994;
and
(b) On January 1, 1995, a cash dividend equal to sixteen cents
($0.16) per share to Bank shareholders of record as of December 31, 1994;
and
(c) On or before the Closing Date, a cash dividend of no more than
fifty cents ($0.50) per share to Bank shareholders of record.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE BANK
The Bank hereby represents and warrants to the Corporation as
follows:
Section 3.01. Organization. The Bank is a Wisconsin state bank duly
organized, validly existing and in good standing under the laws of the State of
<PAGE>
Wisconsin. The Bank has the corporate power and authority and has received all
necessary material federal, state or local authorizations to own or lease its
properties and assets and to carry on its business as now conducted and
presently proposed to be conducted. The copies of the Articles of Incorporation
and By-Laws of the Bank, certified by its Cashier as of the date of this
Agreement, which have been delivered to the Corporation, are correct and
complete copies of the Articles of Incorporation and By-Laws of the Bank in
effect as of the date of this Agreement. As of the date of this Agreement, the
minute books of the Bank contain complete and accurate records of all meetings
and other corporate actions of its shareholders and Board of Directors
(including committees of the Board of Directors). The Bank is duly qualified
to conduct its business and is in good standing in each jurisdiction in which
the nature of the business transacted requires such qualification, except those
jurisdictions in which the failure to so qualify does not involve the violation
of a criminal statute, affect the validity or enforceability of a contract in
any material respect or otherwise have a material adverse effect on the Bank.
Except for the Bank's wholly-owned subsidiary, BOB Investments, Inc., a Nevada
corporation, ("BOB Investments") the Bank has no direct or indirect equity or
ownership interest which represents twenty percent (20%) or more of the
aggregate equity or ownership interest of any other entity (a "Subsidiary").
Section 3.02 Capitalization. The authorized capital stock of
the Bank consists of 904,000 shares of common stock, $1.25 par value, all of
which shares were issued and outstanding as of the date of this Agreement and
all of which shares are validly issued and outstanding, fully paid,
non-assessable (except as otherwise provided by applicable law), and have not
been issued in violation of the preemptive rights of any stockholder. All of
the authorized capital stock of BOB Investments is owned by the Bank, all of
which shares are validly issued and outstanding, fully paid, non-assessable
(except as otherwise provided by applicable law), and have not been in violation
of the preemptive rights of any stockholder. There are no outstanding or
existing options, pre-emptive rights, warrants, subscriptions, conversion
rights, calls or commitments of any kind obligating the Bank or BOB Investments
to issue, directly or indirectly, additional shares of any class of its capital
stock. The Bank and BOB Investments have no outstanding commitments or
obligations to repurchase, reacquire or redeem any of their outstanding capital
stock.
Section 3.03. Authority and Validity of Agreement. The Bank has
full corporate power and authority to enter into this Agreement, the
Consolidation Agreement and to consummate the transactions contemplated herein
and therein. The execution, delivery and performance of this Agreement and the
Consolidation Agreement by the Bank have been duly authorized by all requisite
corporate action, including without limitation approval by the Bank's Board of
Directors, subject only to approval by the holders of the requisite percentage
of the outstanding shares of the Bank Stock. Subject to such approval by its
shareholders and the government approvals described below, this Agreement and,
upon execution and delivery, the Consolidation Agreement, will each constitute
a valid and binding obligation of the Bank, enforceable in accordance with its
terms, except as such terms may be affected by bankruptcy, insolvency,
moratorium and similar laws affecting the rights of creditors generally and by
the availability of equitable remedies. Provided the required approvals are
obtained from the Commissioner of Banking, the FDIC and the Federal Reserve
<PAGE>
Board and the offering, sale and delivery of the M&I Stock to be issued
hereunder (and under the Consolidation Agreement) are duly registered pursuant
to the Securities Act of 1933 (the "1933 Act"), as amended, and Rule 145 of the
General Rules and Regulations thereunder ("Rule 145"), and subject to the rights
of any Dissenting Shareholders, neither the execution, delivery and performance
of either this Agreement or the Consolidation Agreement nor the consummation of
the transactions contemplated herein and therein, will conflict with, result in
the material breach of, constitute a default under or accelerate the performance
provided by, the terms of any law, or any rule or regulation of any government
agency or authority or any judgment, order or decree of any court or other
government agency to which the Bank may be subject, any contract, agreement or
instrument to which the Bank is a party or by which the Bank is bound or
committed or the Articles of Incorporation or By-Laws of the Bank, or constitute
an event which with the lapse of time or action by a third party could result
in the creation or imposition of any lien, charge or encumbrance upon any of the
assets or properties of the Bank or upon any of the capital stock of the Bank.
Section 3.04. Financial Statements.
(a) The Bank has heretofore delivered to the Corporation correct
and complete copies of:
(i) Its audited Statements of Condition as of December 31,
1993 and 1992 and its audited Statements of Income, Shareholders' Equity and
Changes in Financial Position for the years then ended, together with the notes
thereto, certified by the Bank's independent public auditors; and
(ii) The Bank has delivered to the Corporation copies of all
management and other letters delivered to the Bank by the Bank's independent
auditors, of the internal controls of the Bank during the period January 1, 1991
to date, and will, upon reasonable request, make available for inspection at
such time and place as the Corporation may request, reports and working papers
produced or developed by the Bank's independent auditors in connection with
their examination of such financial statements, as well as all such reports and
working papers for prior periods for which any tax or other liability of the
Bank has not been finally determined or barred by applicable statute of
limitations.
(b) The financial statements described in Subsection (a) above,
fairly present as of their respective dates, the financial position of the Bank
as of the dates thereof and the results of operations for the periods indicated;
and each such statement has been, and shall have been, prepared in conformity
with generally accepted accounting principles applied on a consistent basis,
except as otherwise stated therein, and except that any unaudited interim
statements are subject to normal year-end audit adjustments which shall not be
materially adverse.
(c) The financial statements described in Subsection (a) above, do
not, as of the dates thereof, include any material assets or omit to state any
<PAGE>
material liability, absolute or contingent, or other facts, the inclusion or
omission of which renders such financial statements, in light of the
circumstances under which they were made, materially misleading.
Section 3.05. Reserves for Possible Loan Losses. The reserve for
possible loan and lease losses shown on the Bank's audited Balance Sheet as of
December 31, 1993 are to the best knowledge of the Bank adequate in all respects
to provide for all losses, and net of recoveries relating to loans previously
charged off, on loans outstanding as of the date of such statement, and the loan
portfolios of the Bank at such dates in excess of such reserves are all fully
collectible in accordance with their terms. For the purposes of this Agreement,
any reference to the "knowledge" or "best knowledge" of the Bank shall include
only the actual knowledge of the Bank and shall not include constructive
knowledge of any facts as would have been learned had any specific inquiry been
made.
Section 3.06. Absence of Certain Changes or Events. Except as has
been disclosed in Schedule A hereto, since January 1, 1993, there has not been
any material adverse change in the business, properties or financial condition
of the Bank or BOB Investments nor any development involving a prospective
change in the Bank's or BOB Investment's business, which has affected or may
affect materially and adversely the businesses, properties or financial
condition or the results of operations of the Bank or BOB Investments and the
Bank and BOB Investments have conducted their business only in the ordinary
course consistent with past practice.
Section 3.07. Title. The Bank and BOB Investments have good and
marketable title to all assets and properties, whether real or personal,
tangible or intangible, which it purports to own, including without limitation,
all assets and properties reflected in the most recent financial statements
referred to in Section 3.04(a) hereof, or acquired subsequent thereto (except
to the extent such assets and properties have been disposed of for fair value
in the ordinary course of business since the date of such financial statements),
subject to no liens, mortgages, security interests, encumbrances or charges of
any kind except: (i) as noted in said financial statements or the notes thereto;
(ii) statutory liens not yet delinquent; (iii) security interests granted
incident to borrowings by the Bank from the Federal Reserve Banks or to secure
deposits of funds by federal, state or other governmental agencies; (iv) minor
defects and irregularities in title and encumbrances which do not materially
impair the use thereof for the purposes for which they are held; (v) liens in
connection with repurchase agreements and any other liens incurred in the
ordinary course of business; and (vi) such liens, mortgages, security interests,
encumbrances and charges as are not, in the aggregate, material to the assets
and properties of the Bank or BOB Investments. Schedule A sets forth a list of
all material leases pursuant to which the Bank or BOB Investments leases real
or personal property. All such leases are valid, binding and enforceable in
accordance with their terms, and are in full force and effect, and there are no
existing defaults by the Bank or BOB Investments thereunder or (to the best of
the knowledge of the Bank) any other party thereto; and no event has occurred
which (whether with or without notice, lapse of time or both) would constitute
a default thereunder. True and correct copies of such leases have been
delivered to the Corporation. None of the buildings, structures or
appurtenances described in Schedule A or the operation or maintenance thereof
<PAGE>
as now operated or maintained, contravenes any zoning ordinance or other
administrative regulation (whether or not permitted because of prior
non-conforming use) or violates any restrictive covenant or any provision of
law, the effect of which would materially interfere with or prevent the
continued use of such properties for the purposes for which they are now being
used or would materially and adversely affect the value thereof.
Section 3.08. Litigation. Except as set forth in Schedule A hereto,
no claims have been asserted and no relief has been sought against the Bank or
BOB Investments in any pending litigation or government proceedings (including
without limitation any notice of possible violation or non-compliance with any
environmental law, rule or regulation) or otherwise which might result in a
judgement, decree or order having a material adverse effect on the financial
condition, results of operations, assets, business or prospects of the Bank or
BOB Investments. To the best of the Bank's knowledge there is no reasonable
basis for any material proceedings, claims, actions or government investigation
(including without limitation any notice of possible violation or non-compliance
with any environmental law, rule or regulation). The Bank and BOB Investments
are not parties to any order, judgment or decree which will, or might reasonably
be expected to have, a material adverse effect on its business, operations,
assets, financial condition or prospects.
Section 3.09. Compliance with Laws. The Bank and BOB Investments
have all permits, licenses, certificates of authority, orders and approvals of,
and has made all filings, applications and registrations with federal, state or
local government or regulatory bodies that are required in order to permit them
to carry on their business as presently conducted and the absence of which would
have a material adverse effect on such business. All such permits, licenses,
certificates of authority, orders and approvals are in full force and effect,
to the knowledge of the Bank, no suspension or cancellation of any of them is
threatened; and all such filings, applications and registrations are current in
all material respects. The Bank and BOB Investments are not in default under
any order, license, regulation or demand of any federal, state, local or other
government agency or with respect to any order, writ, injunction or decree of
any court, in each case which violation, infringement or default would have a
material adverse effect on the financial condition, results of operations,
business or prospects of the Bank or BOB Investments.
Section 3.10. Taxes. The Bank and BOB Investments have filed with
the appropriate government agencies all federal, state and local income,
franchise, excise, real and personal property and other tax returns and reports
which are required to be filed by it and the Bank and BOB Investments are not
delinquent in the payment of any taxes shown on such returns or reports or on
any assessments for any such taxes received by it. The tax and audit positions
taken by the Bank and BOB Investments in connection with the tax returns
described in this section were reasonable and asserted in good faith. To the
Bank's knowledge, there are no examinations by the Internal Revenue Service or
the Wisconsin Department of Revenue for any years pending with respect to the
Bank. Schedule A sets forth the date or dates through which the Internal
Revenue Service and the Wisconsin Department of Revenue, respectively, have
examined the income tax returns of the Bank or BOB Investments. There are
<PAGE>
included in the most recent financial statements (or the notes thereto) referred
to in Section 3.04(a) hereof, adequate reserves for the payment of all accrued
but unpaid federal, state and local taxes of the Bank and BOB Investments
including interest and penalties, whether or not disputed, for the period ended
as of the date of such statements and for all fiscal periods prior thereto. The
Bank or BOB Investments have not executed or filed with the Internal Revenue
Service any agreement extending the period for assessment and collection of any
federal or state tax, nor is the Bank or BOB Investments a party to any action
or proceeding by any government authority for assessment or collection of taxes,
nor has any claim for assessment or collection of taxes been asserted against
the Bank or BOB Investments.
Section 3.11. Employment Contracts and Benefits; Material Contracts.
Except as disclosed in Schedule A, there are no: (i) employment, severance,
consulting or other compensation agreements between the Bank or BOB Investments
and any officer, director or employee of the Bank or BOB Investments; and the
Bank or BOB Investments are not parties to or bound by any written or oral
employment contract (including without limitation, any collective bargaining
contract or union agreement) which is not terminable without penalty by the Bank
or BOB Investments on sixty days' or less notice; (ii) bonus, profit-sharing,
severance, termination, stock option, pension, retirement, deferred or
contingent compensation or other employee benefit agreements, trusts, plans or
other arrangements for the benefit of any director, officer or employee of the
Bank; (iii) material leases or licenses with respect to any property, real or
personal, whether as landlord, tenant, licensor or licensee; (iv) contracts or
commitments for capital expenditures in excess of $50,000 for any one project;
(v) material contracts or commitments made in the ordinary course of business
for the purchase of materials or supplies or for the performance of services
over a period of more than sixty days from the date of this Agreement; or (vi)
contracts or options to purchase or sell any real or personal property otherwise
than in the ordinary course of business. The Bank has in all material respects
performed all obligations required to be performed by it to date and is not in
default under any outstanding indenture, mortgage, contract, lease or other
agreement to which it is a party or by which it is bound or under any provision
of its Articles of Incorporation or By-Laws, which might result in, or have
consequences which might result in, a material adverse effect on the financial
condition, results of operations, assets, business or prospects of the Bank or
BOB Investments.
Section 3.12. Employee Benefit Plans.
(a) Schedule A lists all employee benefit plans (as defined in
Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA")), and all bonus, stock option, stock purchase, restricted stock,
incentive, deferred compensation, retiree medical or life insurance,
supplemental retirement, severance or other benefit plans, programs or
arrangements, and all material employment, termination, severance or other
employment contracts or employment agreements, with respect to which the Bank
has any obligation (collectively, the "Plans"). The Bank has furnished or made
available to the Corporation a complete and accurate copy of each Plan (or a
description of the Plans, if the Plans are not in writing) and a complete and
accurate copy of each material document prepared in connection with each such
<PAGE>
Plan, including, without limitation and where applicable, a copy of: (i) each
trust or other funding arrangement; (ii) each summary plan description and
summary of material modifications; (iii) the most recently filed Internal
Revenue Service ("IRS") Form 5500 and related schedules; (iv) the most recently
issued IRS determination letter for each such Plan; and (v) the most recently
prepared actuarial report and financial statement in connection with each such
Plan.
(b) Absence of Certain Types of Plans. The Bank does not maintain
or contribute to, or within the five years preceding the Effective Time has not
maintained or contributed to, an employee pension benefit plan subject to Title
IV of ERISA. Except as listed on Schedule A, none of the Plans obligates the
Bank to pay material separation, severance, termination or similar-type benefits
solely as a result of any transaction contemplated by this Agreement or as a
result of a "change in control," within the meaning of such term under Section
280G of the Code. Except as listed in Schedule A or as required by COBRA, none
of the Plans provides for or promises retiree medical, disability or life
insurance benefits to any current or former employee, officer or director of the
Bank.
(c) Compliance with Applicable Law. Except as listed on Schedule
A, each Plan has been operated in all respects in accordance with the
requirements of all applicable Law and all persons who participate in the
operation of such Plans and all Plan "fiduciaries" (within the meaning of
Section 3(21) of ERISA) have acted in accordance with the provisions of all
applicable Law, except where such violations of applicable Law would not,
individually or in the aggregate, have a material adverse effect on the Bank,
taken as a whole. The Bank has performed all obligations required to be
performed by any of them under, are not in any respect in default under or in
violation of, and the Bank has no knowledge of any default or violation by any
party to, any Plan, except where such failures, defaults or violations would
not, individually or in the aggregate, have a material adverse effect on the
Bank, taken as a whole. No legal action, suit or claim is pending or threatened
with respect to any Plan (other than claims for benefits in the ordinary course)
and, except as disclosed in Schedule A, to the knowledge of the Bank no fact or
event exists that could give rise to any such action, suit or claim. Except as
listed on Schedule A, the Bank has not incurred any material liability to the
Pension Benefit Guaranty Corporation or any material "withdrawal liability"
within the meaning of Title IV of ERISA.
(d) Qualification of Certain Plans. Each Plan that is intended to
be qualified under Section 401(a) of the Code or Section 401(k) of the Code has
received a favorable determination letter from the IRS (as defined herein) that
it is so qualified, and each trust established in connection with any Plan that
is intended to be exempt from federal income taxation under Section 501(a) of
the Code is so exempt, and no fact or event has occurred since the date of such
determination letter from the IRS to adversely affect the qualified status of
any such Plan or the exempt status of any such trust. Except as disclosed on
Schedule A, no trust maintained or contributed to by the Bank is intended to be
qualified as a voluntary employees' beneficiary association or is intended to
be exempt from federal income taxation under Section 501(c)(9) of the Code.
<PAGE>
(e) Absence of Certain Liabilities and Events. Except for matters
listed on Schedule A, there has been no prohibited transaction (within the
meaning of Section 406 of ERISA or Section 4975 of the Code) with respect to any
Plan. The Bank has not incurred any liability for any excise tax arising under
Section 4972 or 4980B of the Code and to the knowledge of the Bank no fact or
event exists that could give rise to any such liability.
(f) Plan Contributions. All contributions, premiums or payments
required to be made with respect to any Plan have been made on or before their
due dates.
Section 3.13. Conduct. Except as set forth in Schedule A hereto,
since December 31, 1993 the Bank and BOB Investments have not: (i) declared or
set aside or paid any dividend or other distribution in respect of its capital
stock, or directly or indirectly, purchased, redeemed or otherwise acquired any
shares of such stock; (ii) incurred any obligations or liabilities (absolute or
contingent), or mortgaged, pledged or subjected to liens or encumbrances (other
than statutory liens not yet delinquent) any of its assets or properties, except
certificates of deposit, repurchase agreements, letters of credit, cashier's
checks, borrowings from the Federal Reserve Banks, and obligations and
liabilities incurred in the ordinary course of business, discharged or satisfied
any lien or encumbrance or paid any obligation or liability (absolute or
contingent), other than current liabilities included in the financial
statements, current liabilities incurred since the date thereof in the ordinary
course of business and liabilities incurred in carrying out the transaction
contemplated by this Agreement; (iii) sold, exchanged or otherwise disposed of
or acquired assets other than in the ordinary course of business; (iv) made any
general wage or salary increase to its employees as a class, or to any executive
officer or director, entered into or amended any employment contract, severance
or similar agreement or arrangement with any officer or salaried employee or
established any new or modified or amended any existing employee welfare, bonus,
stock option, profit-sharing, retirement or other employee benefit plan or
arrangement; (v) suffered any damage, destruction or loss, whether or not
covered by insurance, materially and adversely affecting their business,
properties or assets or waived any rights of value which in the aggregate are
material; (vi) except in the ordinary course of business, entered or agreed to
enter into any agreement or arrangement granting any preferential rights to
purchase any of its assets, properties or rights or requiring the consent of any
party to the transfer and assignment of any such assets, properties or rights;
or (vii) entered into any transactions outside the ordinary course of business
except as expressly contemplated by this Agreement.
Section 3.14. Continuity of Interest. To the best of the Bank's
knowledge, there is no plan or intention on the part of the Bank's shareholders
to sell or otherwise dispose of a number of shares of the M&I Stock to be
received by them pursuant to the Consolidation Agreement which would reduce the
holdings of such common stock to an amount having, in the aggregate, a value at
the time of reorganization of less than 50% of all capital stock of the Bank
outstanding prior to the reorganization.
<PAGE>
Section 3.15. Approval by Bank Board; Recommendation to Bank
Shareholders. The Board of Directors of the Bank has determined that this
Agreement, the Consolidation and the other transactions contemplated hereby are
fair to the shareholders of the Bank and recommended that the shareholders of
the Bank authorize and approve this Agreement, the Consolidation Agreement and
the transactions contemplated herein (the "Board Resolutions"); the Board
Resolutions are in full force and effect, have not been withdrawn, modified,
amended or rescinded in any respect prior to the date hereof and will not be
withdrawn, modified, amended or rescinded in any respect prior to the Effective
Time; and the affirmative votes of only 2/3 of the outstanding shares of Bank
Stock are required to authorize and approve this Agreement, the Consolidation
Agreement and the transactions contemplated herein and therein.
Section 3.16. Insurance. To the best of the Bank knowledge, the
Bank and BOB Investments have in effect insurance coverage with reputable
insurers, which in respect to amounts, types and risks insured, is adequate for
companies of comparable size engaged in business similar to that in which the
Bank and BOB Investments are engaged. A schedule of all insurance policies in
effect as to the Bank is set forth in Schedule A. All material policies of
fire, product or other liability, worker's compensation and other similar forms
of insurance owned or held by the Bank and BOB Investments are in full force and
effect, all premiums with respect thereto covering all periods up to and
including the date as of which this representation is being made have been paid
and no notice of cancellation or termination has been received with respect to
any such policy. Such policies are valid, outstanding and enforceable policies,
and will not in any way be affected by, or terminate or lapse by reason of, the
transactions contemplated by this Agreement.
Section 3.17. Absence of Adverse Agreements. The Bank and BOB
Investments are not parties to any agreement or instrument or any judgment,
order or decree or any rule or regulation of any court or other government
agency or authority which materially and adversely affects or in the future may,
to the best knowledge of the executive officers of the Bank, materially and
adversely affect the financial condition, results of operations, assets,
business or prospects of the Bank or BOB Investments.
Section 3.18. Disclosure. No representation or warranty made by the
Bank contained in this Agreement and no statement contained in any certificate,
list, exhibit or other instrument specified in this Agreement, whether
heretofore furnished to the Corporation or hereafter required to be furnished
to the Corporation, contains or will contain any untrue statement of a material
fact or omits or will omit to state a material fact necessary to make the
statements contained therein not misleading.
Section 3.19. Internal Controls and Records. The Bank maintains
books of account which accurately and validly reflect, in all material respects,
all loans, mortgages, collateral and other business transactions and maintains
accounting controls sufficient to ensure that all such transactions are (i) in
all material respects, executed in accordance with its management's general or
specific authorization, and (ii) recorded in conformity with generally accepted
<PAGE>
accounting principles. There is no amendment to any lending agreement,
collateral document or security which is not fully reflected in the Bank's books
and records.
Section 3.20. Loan Schedule. Schedule B annexed hereto contains a
Loan Schedule identifying certain loan agreements, notes and borrowing
arrangements between the Bank and its borrowers. Except as specifically noted
on the Loan Schedule: (i) as of the date of this Agreement, the Bank is not a
party to any written or oral loan agreement, note or borrowing arrangement under
the terms of which the obligor is 30 days or more delinquent in payment of
principal or interest or, to the best of the Bank's knowledge, in default of any
other provision as of the dates shown thereon other than credit card loans and
other loans the unpaid balance of which does not exceed $10,000 per loan; (ii)
as of the date of this Agreement the Bank is not a party to any written or oral
loan agreement, note or borrowing arrangement which has been classified as
"substandard," "doubtful," "loss," "other loans especially mentioned" or any
comparable classifications by the Bank, FDIC or Commissioner of Banking; (iii)
as of the date of this Agreement the Bank is not a party to any written or oral
loan agreement, note, or borrowing arrangement, including any loan guaranty,
with any director, executive officer or ten percent shareholder of the Bank, or
any person, corporation or enterprise controlling, controlled by or under common
control with any of the foregoing; or (iv) as of the date of this Agreement, to
the best of the Bank's knowledge, it is not a party to any written or oral loan
agreement, note or borrowing arrangement in violation of any law, regulation or
rule of any governmental authority and which violation could affect the Bank in
a materially adverse manner.
Section 3.21. Brokers. Neither the Bank nor any of its officers and
directors has engaged any broker or finder or incurred any liability for any
brokerage fees, commissions or finder's fees in connection with the
Consolidation or the transactions contemplated herein. The Bank agrees to
indemnify the Corporation against any claim by any third person for any
commission, brokerage or finder's fee, or other payment with respect to this
Agreement, the Consolidation Agreement or the transactions contemplated herein
and therein based on any alleged agreement or understanding between such party
and such third person, whether express or implied from the actions of such
party.
Section 3.22. Environmental Matters.
(a) To the best of the Bank's knowledge and except as disclosed in
Schedule A: (i) Hazardous Materials (as defined below) have not been stored,
released or disposed of on or from the Bank's or BOB Investment's Property (as
defined below) or, to the actual knowledge of the Bank, any property adjoining
the Bank's or BOB Investments' Property; (ii) Environmental Permits (as defined
below) have been obtained and are in effect for the operations conducted at the
Bank's or BOB Investment's Property; (iii) the Bank and BOB Investments are in
compliance in all material respects with the requirements of all of their
Environmental Permits; and (iv) there are no circumstances with respect to any
Bank or BOB Investments Property that could reasonably be anticipated to form
the basis of an Environmental Claim against the Bank, the Bank's Property, BOB
Investments or BOB Investment's Property that, individually or in the aggregate,
could have a material adverse effect on the Bank or BOB Investments, taken as
a whole, or to cause the Bank's or BOB Investment's Property to be subject to
<PAGE>
any restrictions on ownership, occupancy, use or transferability under any
applicable Environmental Law.
(b) As used herein, the following terms shall be defined as
follows:
(i) "Bank's Property" or "BOB Investment's Property" means
any real property and improvements currently owned, leased, used, operated or
occupied by the Bank or BOB Investments, including properties acquired by fore-
closure or held or operated in a fiduciary or managerial capacity;
(ii) "Hazardous Materials" means (A) any petroleum or
petroleum products, radioactive materials, asbestos in any form that is or could
become friable, urea formaldehyde foam insulation, transformers or other
equipment that contain dielectric fluid containing levels of polychlorinated
biphenyls and radon gas; (B) any chemicals, materials or substances defined as
or included in the definition of "hazardous substances," or words of similar
import, under any applicable Environmental Law; and (C) any other chemical,
material or substance, exposure to which is prohibited, limited or regulated by
any governmental authority;
(iii) "Environmental Law" means any federal, state, local or
foreign statute, law, rule, regulation, ordinance, code, policy or rule of
common law in effect and in each case as amended as of the Effective Time, and
any judicial or administrative interpretation thereof as of the Effective Time,
including any judicial or administrative order, consent decree or judgment,
relating to the environment, health, safety or Hazardous Materials;
(iv) "Environmental Claims" means any and all
administrative, regulatory or judicial actions, suits, demands, demand letters,
claims, liens, notices of noncompliance or violation, investigations or
proceedings relating in any way to any Environmental Law or Environmental
Permit; and
(v) "Environmental Permits" means all permits, approvals,
identification numbers, licenses and other authorizations required under any
applicable Environmental Law.
(c) The Bank will provide to the Corporation within thirty (30)
days of execution of this Agreement copies of the Phase I environmental audit
conducted by the Bank for the Waterford and Twin Lakes branch sites.
<PAGE>
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE CORPORATION
The Corporation represents and warrants as follows:
Section 4.01. Organization. The Corporation is a corporation
validly existing and in good standing under the laws of the State of Wisconsin
with all necessary power to carry on its business as it is now being conducted.
The Corporation is registered with the Federal Reserve Board as a bank holding
company under the Bank Holding Company Act of 1956, as amended.
Section 4.02. Capitalization. The outstanding capital stock of the
Corporation is, and the shares of M&I Stock to be issued pursuant to this
Agreement and the Consolidation Agreement, when so issued, will be, duly
authorized, validly issued, fully paid and non-assessable (except as provided
by applicable law) and have not, and will not have, been issued in violation of
the preemptive rights of any person.
Section 4.03. Filings and Reports. The Corporation has previously
delivered to the Bank true and complete copies of: (i) its Annual Report on Form
10-K for the fiscal years ended December 31, 1991, 1992 and 1993, respectively,
as filed with the Commission; (ii) Proxy Statements relating to all meetings of
the Corporation's shareholders (whether annual or special) during 1992 and 1993;
and (iii) all other reports, statements and registration statements (including
current reports on Form 8-K and quarterly reports on Form 10-Q) filed by it with
the Commission since January 1, 1993 (collectively, the Corporation's "SEC
Reports"). As of their respective filing dates, the Corporation's SEC Reports
did not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the
statements made therein, in light of the circumstances under which they were
made, not misleading. The audited and unaudited consolidated financial
statements of the Corporation included in the Corporation's SEC Reports have
been prepared in accordance with generally accepted accounting principles
applied on a consistent basis (except as stated in such financial statements)
and fairly present the financial position of the Corporation and its
consolidated Subsidiaries as of the dates thereof and the results of their
operations and changes in financial position of the Corporation and its
consolidated Subsidiaries for the periods then ended, subject, in the case of
the unaudited financial statements, to normal year-end audit adjustments which
shall not be materially adverse.
Section 4.04. Litigation. No claims have been asserted and no
relief has been sought against the Corporation or any of its Subsidiaries in any
pending litigation or governmental proceedings or otherwise, which might result
in a judgment, decree or order having a material adverse effect on the financial
condition, results of operations, business or prospects of the Corporation and
its consolidated Subsidiaries, taken as a whole, or on the transactions proposed
by this Agreement.
<PAGE>
Section 4.05. Authority and Validity of Agreement. The Corporation
has full corporate power and authority to enter into this Agreement and the
Consolidation Agreement and to consummate the transactions contemplated herein
and therein. The execution, delivery and performance of this Agreement by the
Corporation have been duly authorized by all requisite corporate action.
Subject to the government approvals described below, this Agreement will
constitute a valid and binding obligation of the Corporation, enforceable in
accordance with its terms, except as such terms may be affected by bankruptcy,
insolvency, moratorium and similar laws affecting the rights of creditors
generally and by the availability of equitable remedies. Provided the required
approvals are obtained from the Federal Reserve Board, the Office of the
Wisconsin Commissioner of Banking and the FDIC and the offering, sale and
delivery of the M&I Stock to be issued hereunder (and under the Consolidation
Agreement) are duly registered pursuant to the 1933 Act and Rule 145 thereunder,
neither the execution, delivery and performance of this Agreement or the
Consolidation Agreement nor the consummation of the Consolidation contemplated
herein and therein, will conflict with, result in the breach of, constitute a
default under or accelerate the performance provided by, the terms of any law,
or any rule or regulation of any government agency or authority or any judgment,
order or decree of any court or other government agency to which the Corporation
may be subject, any contract, agreement or instrument to which the Corporation
is a party or by which the Corporation is bound or committed or the Articles of
Incorporation or By-Laws of the Corporation or constitute an event which with
the lapse of time or action by a third party could result in a default under any
of the foregoing or result in the creation or imposition of any lien, charge or
encumbrance upon any of the assets or properties of the Corporation or upon any
shares of M&I Stock.
Section 4.06. Disclosure. No representation or warranty made by
the Bank contained in this Agreement and no statement contained in any
certificate, list, exhibit or other instrument specified in this Agreement,
whether heretofore furnished to the Bank or hereafter required to be furnished
to the Bank, contains or will contain any untrue statement of a material fact
or omits or will omit to state a material fact necessary to make the statements
contained therein not misleading.
ARTICLE V
ADDITIONAL COVENANTS AND AGREEMENTS
Section 5.01. Conduct of Business Prior to Closing. From and after
the date of this Agreement until the Effective Time, the Bank and BOB
Investments shall: (i) carry on their business diligently and in substantially
the same manner as they did prior to the Effective Time; (ii) maintain and keep
their properties in as good repair and condition as at present, except for
depreciation due to ordinary wear and tear and damage due to casualty; (iii)
maintain in full force and effect insurance comparable in amount and in scope
of coverage to that now maintained by them; (iv) perform all of their
obligations under contracts, leases and documents relating to or affecting their
assets, properties and business; (v) maintain and preserve their business
organization intact, retain their present employees and maintain their
<PAGE>
relationship with customers; and (vi) comply with and perform all obligations
and duties imposed upon them by federal and state laws and all rules,
regulations and orders imposed by federal or state governmental authorities.
Without limiting the generality of the foregoing, except as specifically
contemplated in this Agreement, from the date hereof until the Effective Time,
the Bank and BOB Investments shall not enter into any agreement or otherwise
commit to do, without the written consent of the Corporation, any of the
following:
(a) (i) incur or assume any material obligation or liability,
including without limitation any obligation for borrowed money whether or not
evidenced by a note, bond, debenture or similar instrument, (ii) assume,
guaranty, endorse or otherwise become liable or responsible (whether directly,
contingent or otherwise) for the obligations of any other person; or (iii)
mortgage, license, pledge or grant a security interest in any of its material
assets or allow to exist any material lien thereon; except (A) for liabilities
and obligations (including corporate debt issuances) incurred in the ordinary
course of business consistent with past practice and in amounts not material to
the Bank; or undertaken in connection with the capital expenditures otherwise
permitted under this section; and (B) as may be required under existing
agreements to which the Bank or BOB Investments are parties;
(b) change its lending, investment, liability management and
other material banking policies in any material respect; organize any
Subsidiaries or enter into any new non-banking line of business whether or not
permissible under applicable federal or state law, make any material changes in
its operations or make any material investment in any other person, firm or
entity;
(c) propose, adopt or permit any amendment to its Articles of
Incorporation or By-Laws or the terms of any securities issued by it;
(d) in an aggregate amount exceeding One Hundred Thousand Dollars
($100,000.00) authorize, incur or commit to any capital expenditures other than
capital expenditures consistent with the budget heretofore furnished to and
approved by the Corporation;
(e) (i) split, combine or reclassify any Bank Stock or
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, or any options, warrants, conversion or rights to acquire any
shares of its capital stock or any securities or obligations; (ii) merge with
or into any other corporation or bank, permit any other corporation or bank to
merge into it or consolidate with any other corporation or bank, or effect any
reorganization or recapitalization; (iii) purchase or otherwise acquire any
substantial portion of the assets, or more than 5% of any class of capital
stock, of any corporation, bank or other business; and (iv) liquidate, sell,
dispose of, or encumber any assets other than in the ordinary course of business
consistent with past practice which assets are not material to the Bank;
(f) revalue in any material respect any of its assets, including
without limitation the writing down or writing off the value of any asset; or
change its methods of accounting, except as required by changes in generally
<PAGE>
accepted accounting principles as concurred in by Arthur Andersen & Co., or
change any of its methods of reporting income and deductions for Federal income
tax purposes, except as required by changes in applicable law;
(g) make any tax election or settle or compromise any income tax
liability material to the Bank or BOB Investments;
(h) pay, discharge or satisfy any claims, liabilities or
obligations (absolute, accrued, asserted or unasserted, contingent or
otherwise), other than the payment, discharge or satisfaction in the ordinary
course of business of liabilities reflected or reserved against in, or
contemplated by, the consolidated financial statements (or the notes thereto)
of the Bank or incurred in the ordinary course of business consistent with past
practice;
(i) (i) issue, grant, sell or pledge any shares of its capital
stock or any securities convertible into capital stock, or permit any shares of
its capital stock held in its treasury to become outstanding, except upon
exercise of rights or options outstanding under employee benefit plans, programs
or arrangements in existence on the date hereof; (ii) confer, issue, sell, grant
or award any options, warrants, conversion or other rights not outstanding on
the date hereof to acquire any shares of its capital stock not outstanding on
the date hereof, including without limitation, the issue, sale, or grant of any
option or stock appreciation right; or (iii) amend any of the terms of any such
outstanding securities, options, warrants, rights or agreements;
(j) take or suffer to exist any of the actions described in
Section 3.13 hereof;
(k) (i) enter into or adopt any new employee benefit plan or
agreement, or (except as required under existing plans or agreements) increase
in any manner the compensation or benefits of any of its officers, directors or
other employees; (ii) pay or agree to pay any pension, retirement or severance
allowance or other employee benefit not required or permitted by any existing
plan, agreement or arrangement to any director, officer or key employee; (iii)
adopt or commit itself to any additional pension, profit sharing, bonus,
incentive, deferred compensation, insurance, or other employee benefit plan,
agreement or arrangement or to any employment or consulting agreement with or
for the benefit of any director, officer or employee; (iv) amend any such plan,
agreement or arrangement; or (v) enter into any contract, agreement or
commitment to do any of the foregoing; or
(l) declare or pay any dividends on its outstanding shares of
capital stock, except for regular dividends paid in the ordinary course of
business and consistent with past practices of the Bank, and except as otherwise
provided in Section 2.07 of this Agreement.
Section 5.02. Information Requirements. The Bank shall, between
the date hereof and the Effective Date, deliver to the Corporation complete
copies of:
(a) as soon as practicable, but in no event later than thirty
(30) days after the end of each fiscal year, its unaudited Balance Sheet as of
<PAGE>
the last day of such year and its Statements of Income, Changes in Shareholders'
Equity and Changes in Financial Position for the fiscal year then ended,
together with comparable data relating to the preceding fiscal year, all
certified as true and correct by the Bank's principal accounting or financial
officer, subject to normal year-end fiscal audit adjustments;
(b) as soon as practicable, but in any event not later than
thirty (30) days after the end of each fiscal quarter commencing with the
quarter ending June 30, 1994, its unaudited Balance Sheet as of the close of
such fiscal quarter and the related unaudited Statements of Income, Changes in
Shareholders' Equity and Changes in Financial Position for each such fiscal
quarter, certified as accurate by the Bank's chief financial or accounting
officer; and
(c) all management and other letters delivered to the Bank by its
independent auditors, and the Bank will make available all reports and work
papers produced or developed by the Bank's auditors in connection with their
examination of the financial statements of the Bank, as well as all working
papers and reports for any prior period for which any tax or other liability of
the Bank has not been finally determined or barred by the statute of
limitations.
The financial statements described in Subsections (a) and (b), above, shall
fairly present, as of their respective dates, the financial position of the Bank
and the results of its operations for the periods indicated; and each such
statement has been, and shall have been, prepared in conformity with generally
accepted accounting principles applied on a consistent basis. The financial
statements described in Subsections (a) and (b), above, shall not, as of the
dates thereof, include any material assets or omit to state any material
liability, absolute or contingent, or other facts, the inclusion or omission of
which renders such financial statements, in light of the circumstances under
which they were made, materially misleading, and there shall not have been since
December 31, 1993, any material adverse change in the financial condition,
results of operations, assets, business or prospects of the Bank, other than
changes in the ordinary course of business, none of which individually or in the
aggregate has been materially adverse.
Section 5.03. Shareholders' Meeting. The Bank, acting through its
Board of Directors, shall promptly in accordance with applicable law:
(i) take all actions necessary to duly call, give notice
of, convene and hold an annual or special meeting of its shareholders (the
"Shareholders' Meeting") as soon as practicable for the purpose of considering
and taking action upon this Agreement, the Consolidation and related matters;
(ii) subject to its fiduciary duties under applicable law
as determined by the Bank's Board of Directors upon advice of counsel, include
in the Prospectus/Proxy (as defined in Section 5.04) the recommendation of the
Bank's Board of Directors that shareholders of the Bank vote in favor of the
approval and adoption of this Agreement, the Consolidation and the transactions
contemplated hereby; and
<PAGE>
(iii) use its best efforts (A) to obtain and furnish the
information required to be included by it in the Prospectus/Proxy and cause the
Prospectus/Proxy Statement to be mailed to its shareholders at the earliest
practicable time and (B) to obtain the necessary approvals by the requisite
percentage of its shareholders of this Agreement, the Consolidation and the
other transactions contemplated hereby.
Section 5.04. Registration Statement Information. The Bank will
furnish the Corporation with all information concerning the Bank required for
inclusion: (i) in a registration statement (including the related prospectus)
on Form S-4 (or other appropriate form), any amendments thereto or any
supplements to any prospectus contained therein (the "Registration Statement"),
filed by the Corporation with the Securities and Exchange Commission (the
"Commission") in order to register under the 1933 Act or in any blue sky
application or exemption request filed with any state securities commission
regarding, the offer, sale and delivery of the shares of the M&I Stock to be
issued pursuant to the Consolidation; or (ii) in any application or statement
made by the Corporation to any government agency or authority in connection with
the transaction contemplated by this Agreement and the Consolidation Agreement.
The Bank hereby represents and warrants to the Corporation that at the time the
Registration Statement and Blue Sky Permits become effective, the Registration
Statement and the Prospectus/Proxy Statement included therein and all Blue Sky
Applications, insofar as they relate to the Bank and are based upon written
information furnished by the Bank to the Corporation for use therein: (i) will
comply in all material respects with the provisions of the 1933 Act; and (ii)
will not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and that, at the time of the shareholders meeting
referred to in Section 5.03, above and at the Effective Time, the
Prospectus/Proxy Statement, as amended or supplemented by any amendment filed
by the Corporation, insofar as it relates to the Bank and is based upon written
information furnished by the Bank to the Corporation for use in such
Prospectus-Proxy Statement, will not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading.
Section 5.05. Filing of Registration Statement; Blue Sky Filings.
The Corporation will, after receiving from the Bank all information necessary
for the Registration Statement regarding the Bank, file the Registration
Statement with the Commission as soon as practicable and use its best efforts
to cause the Registration Statement to become effective as soon thereafter as
practicable. The Corporation shall make all appropriate applications and filings
with and obtain all appropriate consents, permits, registrations (or exemptions
therefrom) required by any state securities law in connection with this
Agreement, and the same shall be in effect prior to the mailing of the
Prospectus/Proxy Statement to the Bank shareholders, at the date of the special
meeting of shareholders of the Bank and at the Effective Time. The Corporation
represents and warrants to the Bank that at the time the Registration Statement
and Blue Sky permits become effective, the Registration Statement and the
Prospectus/Proxy Statement included therein and all Blue Sky Applications: (i)
will comply in all material respects with the provisions of the 1933 Act; and
<PAGE>
(ii) will not contain any untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading; and that, at the time of the shareholders
meeting referred to in Section 5.03, above and at the Effective Time, the
Prospectus/Proxy Statement, as amended or supplemented by any amendment or
supplement filed by the Corporation will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements
contained therein, in light of the circumstances under which they were made, not
misleading; provided, however, that none of the representations and warranties
in this Section 5.05 shall apply to statements in or omissions from the
Registration Statement or Prospectus/Proxy Statement made in reliance upon and
in conformity with written information furnished by the Bank for use in the
Registration Statement or Prospectus/Proxy Statement as provided in Section
5.04, above.
Section 5.06. Government Filings. The Corporation shall promptly
prepare and file with the Federal Reserve Board, the Wisconsin Office of the
Commissioner of Banking, FDIC and other appropriate state and federal banking
regulatory agencies, an application on an appropriate form to complete the
Consolidation and the other transactions contemplated herein and will use its
best efforts to have all such applications approved as promptly as possible.
Section 5.07. Access, Investigation and Review. From and after
the date of this Agreement, the Bank shall afford to the officers, attorneys and
accountants and other authorized representatives of the Corporation full and
free access to the properties, books, contracts, commitments and records of the
Bank, at all reasonable times during business hours, and such representatives
of the Corporation shall be furnished with true and complete copies of the same
and with all other information concerning the affairs of the Bank as such
representatives may reasonably request. Any such information treated as
confidential by the Bank (and so marked at the time of release to the
representatives of the Corporation) shall be kept confidential by the
representatives of the Corporation (and shall be used by them only in connection
with this Agreement and the transactions contemplated hereby) except to the
extent that: (i) it was already known to such representatives when received;
(ii) it hereafter becomes lawfully obtainable from other sources; or (iii) it
is required to be disclosed by the Corporation in any document required to be
filed with the Federal Reserve Board, the Wisconsin Office of the Commissioner
of Banking, the FDIC, the Securities and Exchange Commission or any other
government agency or authority.
Section 5.08. No Solicitation. Neither the Bank nor any of its
officers, directors, employees, agents or representatives (including, without
limitation, investment bankers, attorneys and accountants) or any of the
officers, directors, employees, agents or representatives of the Bank shall,
directly or indirectly, without the prior written consent of the Corporation
initiate contact with, solicit or encourage any inquiries or proposals by or
except as, in the written opinion of the Bank's counsel, may be required by the
fiduciary duties of the Board of Directors of the Bank, enter into any
discussions or negotiations or agreements with, or disclose directly or
indirectly any information not customarily disclosed concerning its business and
properties, or afford any access to its properties, books and records to, any
corporation, partnership, person or other entity or group in connection with any
<PAGE>
possible proposal regarding a tender offer for or sale of the Bank's capital
stock or a consolidation, merger, or sale of all or a substantial portion of the
assets of the Bank or any similar transaction.
Section 5.09. Consultation and Notice of Actions and Proceedings.
During the period from the date of this Agreement to the Effective Time, the
Bank will cause one or more of its officers to confer on a regular and frequent
basis with officers of the Corporation to report the general status of ongoing
operations and to consult with the Corporation as to the making of any decisions
or the taking of any actions in matters outside the ordinary course of business.
The Bank shall promptly notify the Corporation of any claims, actions,
proceedings or investigations commenced or, to the best of its knowledge
threatened, involving the Bank or any of its properties or assets or, to the
best of its knowledge, any employee, director or officer of the Bank which if
pending on the date hereof would have been required to be disclosed in writing
pursuant to Section 3.08 hereof or which relates to the consummation of the
Consolidation. The Bank shall give prompt notice to the Corporation of: (i) any
notice of, or other communication relating to, a default or event of default
which, with notice or lapse of time or both, would become a default, received
by the Bank subsequent to the date of this Agreement and prior to the Effective
Time, under any agreement, indenture or instrument material to the financial
condition, properties, business or results of operations of the Bank to which
the Bank is a party or is subject; (ii) 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 Agreement;
(iii) any notice or other communication from any regulatory authority in
connection with the transactions contemplated hereby; or (iv) any material
adverse change in the financial condition, properties, businesses or results of
operations of the Bank.
Section 5.10. Agreement by Affiliated Shareholders of the Bank.
(a) The Bank shall deliver to the Corporation a letter
identifying all persons whom it believes to be, at the time of the shareholders
meeting referred to in Section 6.01, an "affiliate" for purposes of Rule 145
under the Securities Act; and
(b) Each shareholder of the Bank (such shareholders as the "Bank
Shareholders") who shall, in the opinion of counsel to the Corporation, be
deemed to be an "affiliate" of the Bank, within the meaning of such term as used
in Rule 145 ("Rule 145") of the General Rules and Regulations (the "Rules") of
the Commission under the 1933 Act, shall enter into an agreement ("Affiliate
Agreement"), prior to the Effective Date, substantially in the form attached
hereto as Exhibit A to the effect that no disposition of M&I Stock received in
the Consolidation will be made by such persons except within the limits and in
accordance with the applicable provisions of said Rule 145, as amended from time
to time, or except in a transaction which, in the opinion of legal counsel
reasonably satisfactory to the Corporation, is exempt from registration under
the Securities Act.
Section 5.11. Reasonable Best Efforts. Subject to the terms and
conditions herein provided, each of the parties hereto agrees to use its
reasonable best efforts to take, or cause to be taken, all action, and to do,
or cause to be done, all things reasonably necessary, proper or advisable under
<PAGE>
applicable laws and regulations to consummate and make effective the
transactions contemplated by this Agreement, including, without limitation: (i)
cooperation in the preparation and filing of the Prospectus/Proxy Statement and
any amendments thereto; (ii) the satisfaction of all requirements of any
financing agreements; (iii) the taking of all action reasonably necessary,
proper or advisable to secure existing debt obligations of the Bank or amend the
notes, indentures or agreements relating thereto to the extent required by such
notes, indentures or agreements or redeem or repurchase such debt obligations;
and (iv) the execution of any additional instruments necessary to consummate the
transactions contemplated hereby. In case at any time after the Effective Time
any further action is necessary or desirable to carry out the purposes of this
Agreement, the proper officers and directors of each party hereto shall take all
such necessary action.
Section 5.12. Formation of M&I Interim Bank. The Corporation
agrees to cause M&I Interim Bank to be organized promptly under the laws of the
State of Wisconsin. Following the organization and due formation of M&I Interim
Bank it shall, by addendum to this Agreement, become a party to the Agreement.
At such time as M&I Interim Bank has been organized, the Corporation agrees to
secure approval of the Consolidation Agreement by the Board of Directors of M&I
Interim Bank and to cause M&I Interim Bank to execute and deliver the
Consolidation Agreement.
Section 5.13. Public Announcements. The Corporation and the Bank,
as the case may be, will consult with one another before issuing any press
release or otherwise making any public statements with respect to the
transactions contemplated by this Agreement, and shall not issue any such press
release or make any such public statement prior to such consultation, except as
may be required by applicable law or by obligations pursuant to any listing
agreement with any national securities exchange, as determined by the
Corporation or the Bank, as the case may be.
ARTICLE VI
CONDITIONS TO CLOSING
Section 6.01. Conditions to Obligations of the Corporation. The
obligations of the Corporation under this Agreement are subject, in the
discretion of the Corporation, to the satisfaction at or prior to the Effective
Date of each of the following conditions:
(a) The representations and warranties made by the Bank in
Article III or otherwise in this Agreement with respect to itself shall have
been true when made and, except for changes as contemplated herein, shall be
true at the Effective Time with the same force and effect as if such
representations and warranties were made at and as of the Effective Time and the
Bank shall have performed or complied in all material respects with all
obligations, covenants and conditions required by Articles V and VI and as
<PAGE>
otherwise required in this Agreement to be performed or complied with by the
Bank or its affiliates prior to or at the Closing or Effective Time. The Bank
shall have furnished the Corporation with a certificate, signed by the President
of the Bank and dated the Effective Date, to the foregoing effect.
(b) The holders of the requisite percentage of the outstanding
shares of the Bank Stock shall have duly authorized, adopted and approved this
Agreement, the Consolidation Agreement and the consummation of the transactions
contemplated herein and in the Consolidation Agreement. The Bank shall have
delivered to M&I a certificate signed by the President of the Bank as to the
details of the foregoing.
(c) The Corporation shall have received an opinion from Michael,
Best & Friedrich, counsel for the Bank, dated the Closing Date and in form and
substance substantially similar to the form attached hereto as Exhibit B, with
only such exceptions, qualifications and limitations as shall be satisfactory
in form and substance to counsel for the Corporation, together with such
additional opinions as the Corporation, may reasonably request.
(d) The Corporation shall have received letters addressed to the
Corporation from KPMG Peat Marwick, independent public accountants for the Bank,
substantially in the form attached as Exhibit C attached hereto, dated within
five business days prior to the effective date of the Registration Statement and
dated within five business days prior to the Effective Time, respectively.
(e) The Corporation shall have received a certificate, dated the
Closing Date, of the President of the Bank to the effect that he has read the
Registration Statement, and, with respect to the information set forth in the
Registration Statement relating to the Bank, such Registration Statement, as of
its effective date, as of the date of such certificate, and as of the Effective
Time, contained no untrue statement of a material fact or omitted to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(f) The Bank shall have obtained and delivered to the Corporation
the Affiliate Agreements of those persons who, in the opinion of counsel to the
Corporation, may be deemed to be "affiliates" (as such term is defined in the
published rules and regulations under the 1933 Act) of the Bank.
(g) As of the close of the most recent calendar quarter (or if
the Consolidation shall occur within 20 days following the close of a calendar
quarter, then as of the close of the next preceding calendar quarter) the
"Bank's Net Earnings" (as hereinafter defined) for (i) the four most recent
calendar quarters of the Bank on a cumulative basis and (ii) the most recent
fiscal year of the Bank for which the Bank's earnings have been reported as of
such date, shall each be not less than $1,900,000. As used in this Section, the
"Bank's Net Earnings" means the net income of the Bank for the relevant
period(s) determined in accordance with generally accepted accounting principles
applied on a basis consistent with the Bank's financial statements for the years
ended December 31, 1992 and 1993, as referenced in Section 3.04 hereof, subject
to any subsequent adjustments required to be reported after the Effective Time,
<PAGE>
whether or not such adjustments have, as yet, been reported, with the following
expenses, if any, net of related tax savings and costs, which were reflected in
net income for the relevant period(s) added back into net income for the
applicable period: (i) investment banking expenses, outside legal fees, outside
accounting fees, and printing costs associated with the Consolidation; and (ii)
any other expenses upon which the Corporation and the Bank shall mutually agree.
(h) As of the end of the month last preceding the Effective Time,
the total shareholders' equity of the Bank, prepared in accordance with
generally accepted accounting principles, applied on a basis consistent with
their respective Statements of Changes in Shareholders' Equity as of December
31, 1993, certified by the Bank's independent auditors, shall not be less than
$18,750,000 excluding any adjustments made pursuant to paragraph (k) hereto.
(i) Between December 31, 1993 and the Effective Time there shall
have been no material adverse change in the financial condition of the Bank from
that set forth in (i) the financial statements described in Section 3.04 hereof
or (ii) the reserve for possible loan and lease losses described in Section 3.05
hereof, and nothing shall have come to the Corporation's attention to lead it
to believe that there is or could be a material increase in the loans set forth
in the Loan Schedule described in Section 3.20 hereof. For purposes of this
Section 6.01, without limiting additional factors which may be considered
material, a material adverse change or material increase in the Loan Schedule
shall mean any item, occurrence or event or any series of the same resulting in
damage, loss (including unrecognized losses), liability, cost or expense which
exceeds, in the aggregate, $500,000, as shall be determined by the Corporation
in its sole discretion, but in the exercise of good faith.
(j) No payment on any indebtedness of the Bank will, as a result
of the Consolidation, be accelerated except those of which the Bank has notified
the Corporation in writing not less than sixty (60) days prior to the Closing
and which acceleration(s) of indebtedness has been accepted by the Corporation
in writing prior to the Effective Time.
(k) As of the close of the month ending not more than thirty (30)
days prior to the Effective Time, the Bank shall have made such adjustments,
charge offs, additions to reserves and other accounting and income tax
provisions as the Corporation shall in its sole discretion deem appropriate.
Section 6.02. Conditions to Obligations of the Bank. The
obligations of the Bank under this Agreement and the Consolidation Agreement are
subject, in the discretion of the Bank, to the satisfaction, at or prior to the
Effective Date, of each of the following conditions:
(a) The representations and warranties made by the Corporation
in this Agreement shall have been true when made, and except as may otherwise
be contemplated or permitted herein, shall be true as of the Effective Date with
the same force and effect as if such representations and warranties were made
at and as of the Effective Date, and the Corporation shall have performed or
complied with all obligations, covenants and conditions required by this
<PAGE>
Agreement and the Consolidation Agreement to be performed or complied with by
it prior to or at the Closing. The Bank shall have been furnished with a
certificate, signed by the President of the Corporation and dated the Effective
Date, to the foregoing effect.
(b) The Bank shall have received an opinion of counsel from
Godfrey & Kahn, S.C., counsel for the Corporation and M&I Interim Bank, dated
the Effective Date and in form and substance substantially similar to the form
attached hereto as Exhibit D, together with such other opinions as the Bank may
reasonably request.
Section 6.03. Conditions to Respective Obligations of the
Corporation and the Bank. The respective obligations of the Corporation, M&I
Interim Bank and the Bank under this Agreement and the Consolidation Agreement
are subject to the further conditions that:
(a) The Bank and the Corporation shall each have received an
opinion of their respective counsel, in form and substance satisfactory to each
of them, substantially to the effect that, for federal income tax purposes:
(i) The Consolidation constitutes a reorganization within
the meaning of Sections 368(a)(l)(A) and 368(a)(2)(E) of the IRC;
(ii) No gain or loss will be recognized by the
Corporation, M&I Interim Bank, or the Bank as a result of the transactions
contemplated herein;
(iii) For those Bank shareholders who receive solely M&I
Stock in exchange for their Bank Stock, no gain or loss will be recognized on
such exchange except as to any cash received in lieu of fractional shares; the
adjusted basis of the M&I Stock received by such shareholders will be the same
in each instance as the basis of the Bank Stock surrendered in exchange therefor
(less any basis allocable to fractional shares);
(iv) For those Bank shareholders who receive solely cash
in exchange for their Bank Stock through the exercise of dissenters' rights, the
receipt of cash in exchange for such stock will be treated as a distribution in
redemption of the stock by the Corporation subject to the provisions and
limitations of Section 302 of the IRC;
(v) The holding period of the M&I Stock received by the
Bank shareholders will include in each instance the holding period of the Bank
Stock surrendered in exchange therefor, provided the Bank Stock is held as a
capital asset on the date of the exchange;
(vi) The payment of cash in lieu of fractional share
interests of M&I Stock will be treated as if the fractional shares were
distributed as part of the exchange and then were redeemed by the Corporation
subject to the provisions and limitations of Section 302 of the IRC; and
<PAGE>
(vii) No condition or set of facts or circumstances shall
exist at the Effective Time which will either (i) preclude any of the parties
to this Agreement or the Consolidation Agreement from satisfying the terms of,
or conditions with respect to the ruling or opinion of counsel, or (ii) result
in any of the factual statements contained in the ruling request or opinion of
counsel being untrue in any material respect.
(b) The holders of no more than 5% of the shares of the Bank
Stock shall, at the Closing Date, be entitled to assert statutory dissenters'
appraisal rights under Section 221.25 of the Wisconsin Statutes (with respect
to the Consolidation) unless the Corporation shall elect to pay any amounts
which may so become due to holders of capital stock of the Bank and such payment
will not, in the opinion of counsel to the Corporation, adversely affect or be
inconsistent with the opinions of counsel referred to in this Section 6.03.
(c) The Bank and the Corporation shall have received letters (in
form and substance satisfactory to the Corporation and its counsel) from Bank
shareholders holding 5% or more of the Bank Stock representing to the
Corporation and the Bank that as of the Effective Date, such shareholders have
no present plan or intention to dispose of any shares of M&I Stock acquired by
reason of the Consolidation.
(d) The parties hereto shall have received final approval of the
transactions contemplated by this Agreement from all appropriate government
agencies and authorities, including the Federal Reserve Board, the Wisconsin
Office of the Commissioner of Banking, and the FDIC, without any condition which
is not satisfactory to the Corporation, all conditions required to be satisfied
prior to the Effective Time imposed by the terms of such approvals shall have
been satisfied, and all waiting periods relating to such approvals shall have
expired. Such approvals and the transaction contemplated hereby shall not have
been contested by any federal or state government authority nor by any other
third party by formal proceeding.
(e) No statute, rule or regulation shall have been enacted in the
State of Wisconsin by any governmental or regulatory agency of competent
jurisdiction which prevents or restricts consummation of the Consolidation.
(f) The Registration Statement shall be effective under the 1933
Act prior to the mailing of the Prospectus/Proxy Statement to the Bank's
shareholders, and at the date of the meeting of shareholders referred to in
Section 6.01 hereof and at all times thereafter to and including the Effective
Time, and no stop order suspending the effectiveness thereof shall have been
issued during such period and no proceedings for that purpose shall have been
instituted or be pending at the Effective Time. All appropriate registrations,
permits and consents required by any state securities law (or exemptions
therefrom) in connection with this Agreement shall have been obtained and be in
effect at the date of the meeting of shareholders and at the Effective Time.
(g) On the Effective Date there shall not be any litigation,
investigation, inquiry or proceeding pending or threatened in or by any court
<PAGE>
or government agency or authority which might result in an action to restrain,
enjoin or prohibit consummation of the transactions contemplated by this
Agreement or the Consolidation Agreement, or which might result in divestiture,
rescission or damages in connection with such transactions or involving any of
the assets, properties, business or operations of the Bank which might result
in any material adverse change in the financial condition, results of
operations, business or prospects of the Bank; and each of the parties shall
furnish the other with a certificate, dated the Closing Date and signed by the
President of the Bank and the Corporation respectively, to the effect that no
such litigation, investigation, inquiry or proceeding is pending, or to the best
of his knowledge, threatened against such party.
(h) All actions, proceedings, instruments and documents required
to carry out the transaction contemplated by this Agreement and the
Consolidation Agreement or incidental thereto and all other related legal
matters (including but not limited to all matters relating to the federal income
tax consequences of the Consolidation) shall have been satisfactory to and
approved by counsel to each of the parties to this Agreement and such counsel
shall have been furnished with certified copies of actions and proceedings and
such other documents and instruments as they shall have reasonably requested.
ARTICLE VII
TERMINATION
Section 7.01. Reasons for Termination and Abandonment. This
Agreement may be terminated and abandoned before the Effective Date,
notwithstanding the approval and adoption of this Agreement or the
Consolidation Agreement by the shareholders of the Bank and/or M&I Interim
Bank:
(a) By mutual consent of the Boards of Directors of the Bank and
the Corporation;
(b) By either the Bank or the Corporation if the Consolidation
is not consummated on or before February 15, 1995;
(c) By the Corporation if any of the conditions provided for in
Sections 6.01 and 6.03 of this Agreement have not been met and have not been
waived in writing by the Corporation;
(d) By the Bank, if any of the conditions of Sections 6.02 and
6.03 of this Agreement have not been met and have not been waived in writing
by the Bank; or
(e) By the Bank, if at the time of such termination there shall
be a material adverse change in the consolidated financial condition of the
<PAGE>
Corporation from that set forth in the Corporation's Balance Sheet included in
its Form 10-K for the year ended December 31, 1993.
Section 7.02. Notice. In the event of termination and
abandonment by any party as above provided in this paragraph, written notice
shall forthwith be given to the other parties, which notice shall specifically
describe the basis for such termination.
Section 7.03. Effect of Termination. If the Consolidation is not
consummated as the result of termination of this Agreement, the Corporation
and the Bank each shall pay their own fees and expenses incident to the
negotiation, preparation and execution of this Agreement, their respective
shareholders' meetings and actions and all other acts incidental to, contem-
plated by or in pursuance of the transactions contemplated by this Agreement,
including fees and expenses of their respective counsel, accountants and other
experts and advisors and this Agreement shall immediately terminate and
neither the Bank nor the Corporation shall have any liability under this
Agreement for damages or otherwise.
ARTICLE VIII
MISCELLANEOUS
Section 8.01. Survival of Representations and Warranties. All
representations, warranties and covenants in this Agreement shall survive the
Closing and any investigation by the parties hereto; provided, however, that
no officer, director or shareholder of the Bank or the Corporation shall have
any liability hereunder except in the case of gross negligence, bad faith or
fraud.
Section 8.02. Notices. Any notice given hereunder shall be in
writing and shall be mailed by first class mail, postage prepaid, to the
parties at the following addresses:
If to M&I, then to:
Marshall & Ilsley Corporation
770 North Water Street
Milwaukee, Wisconsin 53201
Attention: M. A. Hatfield, Senior Vice President
With a copy to:
Mr. James A. Sheriff
Godfrey & Kahn, S.C.
780 North Water Street
Milwaukee, Wisconsin 53202
<PAGE>
If to the Bank, then to:
Bank of Burlington
200 South Pine Street
P.O. Box 417
Burlington, Wisconsin 53105
Attention: Mr. Robert Wenke, President
With a copy to:
Mr. Frank J. Pelisek
Michael, Best & Friedrich
100 E. Wisconsin Ave.
Milwaukee, Wisconsin 53202
Section 8.03. Assignment. This Agreement shall be binding upon
and inure to the benefit of the parties hereto, their respective successors
and assigns, but shall not be assigned by either party without the prior
written consent of the other party.
Section 8.04. Articles and Other Headings. Articles and other
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement.
Section 8.05. Entire Agreement. This agreement embodies the
entire agreement between the parties and supersedes all prior arrangements,
understandings, agreements or covenants between the parties.
Section 8.06. Governing Law. This Agreement shall be governed by
the laws of the State of Wisconsin applicable to contracts made and to be
performed therein.
Section 8.07. Counterparts. This Agreement may be executed in
counterparts, each of which when so executed shall be deemed to be an
original, and such counterparts shall together constitute but one and the same
instrument.
Section 8.08. Amendment and Modification. Subject to applicable
law, this Agreement may be amended, modified and supplemented in any and all
respects, at any time before or after the adoption of the consolidation by the
shareholders of the Bank as contemplated by Section 5.03 hereof, by written
agreement of the Bank, and the Corporation, but after such approval of the
shareholders of the Bank, no such amendment, modification or supplement shall
reduce or change the form of the consideration being paid pursuant to Sections
2.02 and 2.03 hereof, or change any of the terms and conditions of the
Agreement in a manner which materially and adversely affects the rights of the
Bank's shareholders hereunder without the approval of such shareholders.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed as of the date first above written.
MARSHALL & ILSLEY CORPORATION
By: /s/ M.A. Hatfield
-----------------------------
M. A. Hatfield
Its: Senior Vice President
Attest:
_________________________
BANK OF BURLINGTON
By: /s/ Robert Wenke
-----------------------------
Robert Wenke
Its: President
Attest:
_________________________
JAS-M&I BURL-RESTATED
burlfinl.jas
<PAGE>
ANNEX A
AGREEMENT AND PLAN OF CONSOLIDATION
THIS AGREEMENT AND PLAN OF CONSOLIDATION dated as of __________,
1994 between M&I INTERIM BANK, a Wisconsin banking corporation ("Interim"),
and BANK OF BURLINGTON, a Wisconsin banking corporation (hereinafter
separately called "Burlington" or together with Interim, one of the
"Consolidating Banks").
RECITALS
This Agreement provides for the consolidation of Interim with and
into Burlington pursuant to the provisions of Section 221.25 of the Wisconsin
Statutes. The consolidation provided for herein is also described and set
forth in that certain Agreement and Plan of Reorganization (the
"Reorganization Agreement") dated June 15, 1994, as amended, between
Burlington and Marshall & Ilsley Corporation ("M&I"), a Wisconsin corporation.
Interim is a newly chartered state bank organized on ___________, 1994, under
the laws of the State of Wisconsin, with its principal office in Burlington,
Wisconsin. As of the date hereof, Interim has outstanding ______ shares of
common stock, par value $_____ per share, all of which shares are owned by M&I
Corporation. Burlington has issued and outstanding 904,000 shares of common
stock, par value $1.25 per share ("Burlington Stock"). This Agreement has
been approved by the Boards of Directors of each Consolidating Bank and will
become effective upon its approval by the requisite vote of the shareholders
of each Consolidating Bank and upon satisfaction of certain other conditions
as hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual promises and
agreements hereafter set forth, the parties hereto agree as follows:
ARTICLE I
Consolidation of Interim into Burlington
1.1. Consolidation. Upon the terms and subject to the conditions
of this Agreement, at the Effective Time (as hereinafter defined), Interim
shall be consolidated with and into Burlington (the "Consolidation") pursuant
to the provisions of Section 221.25 of the Wisconsin Statutes, and Burlington
and
Interim shall become a single banking corporation (the "Consolidated Bank")
which shall exist under and by virtue of the banking laws of the State of
Wisconsin.
<PAGE>
1.2. Effective Time of Consolidation. The Consolidation shall
become effective at the time specified in Section 1.01 of the Reorganization
Agreement (the "Effective Time" or the "Effective Date").
1.3. Consequences of Consolidation. At and as of the Effective
Time and as a result of the Consolidation:
1.31. Continued Existence of Burlington. The corporate
identity, existence, purposes, powers, franchises, rights and immunities
of Burlington shall continue and be unaffected and unimpaired.
1.32. Effect on Interim. The corporate identity,
existence, purposes, powers, franchises, rights and immunities of
Interim shall be merged with and into Burlington and the Consolidated
Bank shall be fully vested therewith. The separate legal existence of
Interim, except as it may be continued by reason of the Wisconsin
banking laws, shall cease and the assets and liabilities of Interim
shall thereafter be reported by the Consolidated Bank. The rights,
interests and franchises of Interim in and to every species of property,
real, personal and mixed and choices in action thereto belonging, shall
be deemed transferred to and vested in the Consolidated Bank without any
deed, endorsement or other instrument of transfer and the Consolidated
Bank shall take, hold and enjoy the same and all rights of property,
franchises and interests in the same manner and to the same extent as
were held and enjoyed by Interim at the time of the Consolidation.
1.33. Effect on Trust Powers. To the extent that either of
the Consolidating Banks is then authorized under the laws of Wisconsin
to perform fiduciary services, the Consolidated Bank shall, at the
Effective Time, succeed to all rights, obligations, relations and
trusts, and the duties and liabilities connected therewith, held by
either of the Consolidating Banks, and without further appointment shall
act as trustee, executor, administrator or in any other fiduciary
capacity in which either of the Consolidating Banks was acting at the
Effective Time, and shall execute and perform each and every trust or
relation in the same manner as if the Consolidated Bank itself had
assumed the trust or relation, including the obligations and liabilities
connected therewith. The Consolidated Bank shall be entitled to be
appointed or to act as trustee or executor or other fiduciary to the
same extent and with the same effect as would either Consolidating Bank
which, prior to the Effective Time, had been designated as trustee or
any other fiduciary in any trust deed or other writing, or has been
nominated as executor in any will.
1.34. Offices. The home office of the Consolidated Bank
shall be at 200 S. Pine Street, Burlington, Wisconsin, being the home
office of Burlington immediately prior to the Effective Time.
<PAGE>
Burlington's branch offices at Paddock Lake, Twin Lakes, and Waterford,
Wisconsin shall continue to be operated and maintained following the
Effective Date as branches of the Consolidated Bank. All remote paying
and receiving facilities, transit facilities, customer bank
communications terminals or other facilities operated by either of the
Consolidating Banks at and prior to the Effective Date shall continue as
facilities of the Consolidated Bank at and after the Effective Date.
1.35. Charter. From and after the Effective Date, the
Charter (Articles of Incorporation) of Burlington as in effect
immediately prior to the Effective Date shall continue as the Charter of
the Consolidated Bank unless and until further amended or repealed as
provided therein or by law.
1.36. By-Laws. From and after the Effective Date, the
By-Laws of Interim as in effect immediately prior to the Effective Date
shall continue as the By-Laws of the Consolidated Bank unless and until
further amended or repealed as provided therein or by law.
1.37. Directors and Officers. The directors and officers
of Burlington holding office immediately prior to the Effective Date
shall continue from and after the Effective Date as directors and
officers of the Consolidated Bank until the election of their respective
successors or until their resignation or removal as provided by law or
in the Charter or By-Laws of the Consolidated Bank. If on the Effective
Date any vacancy shall exist on the Board of Directors or in the
officers of Interim such vacancy may be filled in the manner provided by
the By-Laws of the Consolidated Bank.
1.38. Name of Consolidated Bank. From and after the
Effective Date, the name of the Consolidated Bank shall be "M&I Bank of
Burlington."
1.4. Further Assurances. If at any time after the Effective Date
the Consolidated Bank shall consider or be advised that any further
assignments or assurances in law or any other things are necessary or
desirable to carry out the provisions of this Agreement or to vest, perfect or
confirm, of record or otherwise, in the Consolidated Bank or its transferees
the title to any property or right of either Consolidating Bank acquired or to
be acquired by reason of the Consolidation, the officers and directors of
either Consolidating Bank in office immediately prior to the Effective Date
shall in the name and on behalf of each Consolidating Bank execute and deliver
all such proper deeds, assignments and assurances or other documents and do
all things necessary and proper to vest, perfect or confirm in the
Consolidated Bank or its transferees title to and possession of the
properties, rights, privileges, immunities, powers or purposes of each of the
Consolidating Banks or to otherwise carry out the purposes of this Agreement
<PAGE>
and the proper officers and directors of each of the Consolidating Banks are
hereby authorized, in the name of either Consolidating Bank or otherwise, to
take any and all such action.
ARTICLE II
Conversion and Exchange of Securities
2.1. Manner of Conversion. Subject to the terms and conditions
set forth herein and in the Reorganization Agreement, as of the Effective
Time, by virtue of the Consolidation, and without any action on the part of
any holder of shares of Burlington Stock:
(a) All shares, if any, of Burlington Stock owned by
Burlington shall be cancelled and no M&I Common Stock, $1.00 par value
("M&I Stock") shall be delivered and exchanged therefor.
(b) Each outstanding share of Burlington Stock as to
which shareholders pursuant to Section 221.25 of Wisconsin Statutes have
voted against adoption and approval of the Consolidation or given notice
in writing at or prior to the taking of such vote that they dissent from
the Consolidation and (ii) within 20 days after the date the notice of
approval of the Consolidation by the Wisconsin Office of Commissioner of
Banking is mailed or delivered to such shareholder, such shareholder
notifies Burlington that he or she dissents from the Plan of
Consolidation as adopted and approved and desires to withdraw from
Burlington, then such shares shall not be converted into M&I Stock
hereunder (all such shares of Burlington Stock are hereafter called
"Dissenting Shares"). Burlington shall give M&I prompt notice upon
receipt by Burlington of any such written objection to the Consolidation
by any Burlington stockholder (a "Dissenting Stockholder"). Burlington
agrees that prior to the Effective Time it will not, except with prior
written consent of the M&I, voluntarily make any payment with respect
to, or settle or offer to settle, any such objection. Each Dissenting
Stockholder who becomes entitled, pursuant to the provisions of Section
221.25 of Wisconsin Statutes, to payment for his or her Burlington Stock
shall receive payment therefor from the Consolidated Bank from funds
provided by M&I (but only after the amount thereof shall have been agreed
upon or finally determined pursuant to the provisions of the aforesaid
statute) and such shares of Burlington Stock shall be cancelled. If any
Dissenting Stockholder shall fail to perfect or shall effectively
withdraw or lose his right to appraisal of and payment for his shares of
Burlington Stock under Section 221.25 of Wisconsin Statutes, his or her
shares shall thereupon be converted into M&I Stock in accordance with the
provisions of Section (c) herein.
<PAGE>
(c) Each share of Burlington Stock (except shares described
in subparagraph (a) hereof and Dissenting Shares) issued and outstanding
as of the Effective Time shall by virtue of the Consolidation and
without any action on the part of the holder thereof be converted into
the right to receive one and sixty-five hundredths (1.65) shares of M&I
Stock.
(d) The Exchange Agent shall send a notice in transmittal
form to each holder of a certificate which represents shares of
Burlington Stock prior to the Consolidation and which has not
theretofore been submitted to the Exchange Agent, advising such holder
of the terms of the exchange effected by the Consolidation and the
procedure for surrendering to the Exchange Agent such certificate for
exchange into one or more certificates evidencing shares of M&I Stock.
Until so surrendered, each outstanding certificate which prior to the
Effective Time represented shares of Burlington Stock will be deemed for
all purposes to evidence the right to receive ownership of the number of
full shares of M&I Stock into which such shares of Burlington Stock were
converted; provided, however, that until such certificates are so
surrendered, no dividend payable to holders of record of shares of M&I
Stock as of any date subsequent to the Effective Time shall be paid to
the holder(s) of such certificates in respect of M&I Stock represented
thereby. Upon surrender of certificates for Burlington Stock which have
been converted into shares of M&I Stock, there shall be paid (without
interest) to the record holder of the certificates for M&I Stock issued
and exchanged therefor (i) on or as soon as practicable after such date
of surrender, the amount of dividends which as of any date subsequent to
the Effective Time became payable and were not paid to such holder with
respect to such shares of M&I Stock and (ii) on the appropriate payment
date occurring subsequent to the date of surrender, the amount of such
dividends, if the record date in respect thereof occurred after the
Effective Time but prior to the date of surrender.
(e) No certificates or script representing fractional
shares of M&I Stock shall be issued upon surrender for exchange of
certificates; no dividend or distribution with respect to M&I Stock
shall be payable on or with respect to any fractional share, and such
fractional share's interest shall not entitle the owner thereof to vote
or to any other rights of a stockholder of M&I. In lieu of any such
fractional share, M&I shall pay to each former Burlington stockholder
who otherwise would be entitled to receive a fractional share of M&I
Stock an amount in cash determined by multiplying (i) the closing sales
price of M&I Stock as reported in the Midwest Edition of the Wall Street
Journal on the Effective Date, by (ii) the fraction of a share of M&I
Stock to which such holder would otherwise be entitled.
2.2. Further Powers. The Board of Directors of M&I shall have
the right, either before or after the Effective Date, to adopt additional
<PAGE>
rules and regulations with respect to the surrender of Burlington Certificates
and disbursements with respect thereto not inconsistent with the provisions of
this Agreement.
2.3. No Additional Shares Issued. No shares of capital stock of
the Consolidated Bank shall be issued in connection with the Consolidation.
ARTICLE III
Conditions
3.1. Conditions to Consolidation. Effectuation of the
Consolidation herein provided is conditioned upon fulfillment or waiver of all
conditions set forth in the Reorganization Agreement.
ARTICLE IV
Termination, Amendment, Waiver
4.1. Termination. This Consolidation Agreement may be terminated
in the manner set forth in Article VII of the Reorganization Agreement and may
be amended in the manner set forth in Article VIII of the Reorganization
Agreement.
ARTICLE V
Miscellaneous
5.1. Necessary Action; Best Efforts. From and after the date
hereof each of the parties hereto covenants and agrees to use its best efforts
to consummate the transactions contemplated hereby and to obtain all requisite
third party consents and approvals.
5.2. Notices. All notices or other communications required or
permitted to be given under this Agreement shall be in writing and personally
delivered in a manner sufficient for the service of legal process under the
laws of Wisconsin or sent by first class mail, postage prepaid, to the parties
hereto at their respective addresses as set forth on the signature pages
hereof or to such changed address as a party may designate by notice duly
given. Copies of all such notices shall be delivered or mailed to Marshall &
Ilsley Corporation, 770 North Water Street, Milwaukee, Wisconsin 53202,
Attention: M. A. Hatfield, Secretary, or to such other address as M&I may
hereafter designate by notice given to both of the Consolidating Banks.
5.3. Binding Effect; No Third Party Action. This Agreement shall
be binding upon and inure to the benefit of the Consolidating Banks parties
<PAGE>
hereto and no shareholder or creditor of a party or any other person shall
have any right to enforce or maintain any action under this Agreement or by
reason hereof.
5.4 Defined Terms. All capitalized terms not otherwise defined
herein shall be defined as in the Reorganization Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
M&I INTERIM BANK
Attest:
__________________________ By: _______________________________
_______________, President
BANK OF BURLINGTON
Attest:
__________________________ By: _______________________________
Robert Wenke, President
220 S. Pine Street
Burlington, Wisconsin 53105
JAS-M&I BURL CONSOL-RESTATED
burconr.jas
RJE-M&I Form S-4
M&I-S4.RJE
11/15/94 ica
<PAGE>
APPENDIX B
WISCONSIN STATUTES SECTION 221.25
221.25. Consolidation of banks. (1) Any 2 or more banks may, with the
approval of the commissioner of banking, consolidate into one bank under the
charter of either existing bank on such terms and conditions as may be
lawfully agreed upon by a majority of the board of directors of each bank
proposing to consolidate and be ratified and confirmed by the affirmative vote
of the stockholders of each such bank owning at least two-thirds of its
capital stock outstanding and at least two-thirds of any outstanding preferred
stock having voting rights, at a meeting to be held on call of the directors,
after sending notice of the time, place and object of the meeting to each
shareholder of record by registered mail at least 30 days prior to said
meeting; provided that the capital stock of such consolidated bank shall not
be less than that required under existing law for the organization of a state
bank in the place in which it is located. When such consolidation is approved
by the commissioner, any shareholder of either of the banks so consolidated
who has not voted for such consolidation shall be given notice of the approval
by the bank in which the shareholder holds an interest and of the
shareholder's right to receive the appraised value for the shareholder's
shares. If within 20 days after the date that notice of approval is mailed or
delivered to a shareholder the shareholder notifies the directors of the bank
in which the shareholder is interested that the shareholder dissents from the
plan of consolidation as adopted and approved and desires to withdraw from
such bank, the shareholder shall be entitled to receive in cash the value of
the shares so held by the shareholder, to be ascertained by an appraisal made
by a committee of 3 persons, one to be selected by the shareholders, one by
the directors, and the 3rd by the 2 so chosen; the expense of such appraisal
shall be borne by the bank; and in case the value so fixed shall not be
satisfactory to the shareholder he or she may within 5 days after being
notified of the appraisal appeal to the commissioner, who shall cause a
reappraisal to be made by an appraiser or appraisers to be named by said
commissioner, which appraisal shall be final and binding, and if said
reappraisal shall exceed the value fixed by said committee the bank shall pay
the expense of reappraisal, otherwise the shareholder shall pay said expense,
and the value so ascertained and determined shall be deemed to be a debt due
and be forthwith paid to said shareholder from said bank, and the share or
shares so paid shall be surrendered and after such notice as the board of
directors may provide, be sold at public auction within 30 days after the
final appraisement provided for by this section.
(2) The bank or banks consolidating with another bank under sub. (1)
shall not be required to go into liquidation but their assets and liabilities
shall be reported by the bank with which they have consolidated; and all the
rights, franchises and interests of said banks so consolidated in and to every
species of property, personal and mixed, and choses in action thereto
belonging, shall be deemed to be transferred to and vested in such bank into
which it is consolidated without any deed or other transfer, and the said
consolidated bank shall hold and enjoy the same and all rights of property,
franchises and interests in the same manner and to the same extent as was held
and enjoyed by the bank or banks so consolidated therewith.
(3) The commissioner may after consultation with the banking review
board make recommendations to any bank or trust company within this state as
<PAGE>
to advisability of consolidation with other banks and may make recommendations
as to terms for consolidation or merger of banks in order to avoid a condition
of oversupply of banks in any community or area of the state. The
commissioner may also, if requested so to do, act as mediator or arbitrator to
fix any of the terms of any such consolidation or merger. It shall be within
the power of the board of directors of any bank or trust company organized
under the laws of this state to appropriate a reasonable amount from the
assets of the bank toward assisting in bringing about a consolidation or
merger of banks or to aid in reorganization or in avoiding the closing of a
bank where such action is deemed to be in the interests of safe banking and
the maintenance of credit and banking facilities in the county in which such
bank is located.
(4) Application for approval of a consolidation under sub. (1) shall be
made on a form prescribed by the commissioner. The application shall be
accompanied by a fee of $5,000, except that if more than 3 banks are to be
consolidated the fee is $5,000 plus $1,000 for each bank after the 3rd bank.
RJE-M&I Form S-4
M&I-S4.RJE
11/16/94
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 20. Indemnification of Directors and Officers.
Section 180.0851 of the Wisconsin Business Corporation Law (the "WBCL")
requires Marshall & Ilsley Corporation ("M&I") to indemnify a director or
officer, to the extent such person is successful on the merits or otherwise in
the defense of a proceeding, for all reasonable expenses incurred in the
proceeding, if such person was a party to such proceeding because he or she
was a director or officer of M&I unless it is determined that he or she
breached or failed to perform a duty owed to M&I and such breach or failure to
perform constitutes: (i) a willful failure to deal fairly with M&I or its
shareholders in connection with a matter in which the director or officer has
a material conflict of interest; (ii) a violation of criminal law, unless the
director or officer had reasonable cause to believe his or her conduct was
lawful or no reasonable cause to believe his or her conduct was unlawful;
(iii) a transaction from which the director or officer derived an improper
personal profit; or (iv) willful misconduct.
Section 180.0858 of the WBCL provides that subject to certain
limitations, the mandatory indemnification provisions do not preclude any
additional right to indemnification or allowance of expenses that a director
or officer may have under M&I's Articles of Incorporation or Bylaws, a written
agreement between the director or officer and M&I, or a resolution of the
Board of Directors or the shareholders.
Unless otherwise provided in the articles of incorporation or bylaws, or
by written agreement between the director or officer and M&I, an officer or
director seeking indemnification is entitled to indemnification if approved in
any of the following manners as specified in Section 180.0855 of the WBCL:
(i) by majority vote of a disinterested quorum of the Board of Directors:
(ii) by independent legal counsel chosen by a quorum of disinterested
directors or its committee; (iii) by a panel of three arbitrators (one of
which is chosen by a quorum of disinterested directors); (iv) by the vote of
the shareholders; (v) by a court; or (vi) by any other method permitted in
Section 180.0858 of the WBCL.
Reasonable expenses incurred by a director or officer who is a party to
a proceeding may be reimbursed by M&I, pursuant to Section 180.0853 of the
WBCL, at such time as the director or officer furnishes to M&I written
affirmation of his good faith that he has not breached or failed to perform
his duties; and written confirmation to repay any amounts advanced if it is
determined that indemnification by M&I is not required.
Section 180.0859 of the WBCL provides that it is the public policy of
the State of Wisconsin to require or permit indemnification, allowance of
expenses and insurance to the extent required or permitted under Sections
180.0850 to 180.0858 of the WBCL for any liability incurred in connection with
any proceeding involving a federal or state statute, rule or regulation
regulating the offer, sale or purchase of securities.
As permitted by Section 180.0858, M&I has adopted indemnification
provisions in its By-Laws which closely track the statutory indemnification
provisions with certain exceptions. In particular, Section 7.1 of M&I's
By-Laws, among other items, provides that (i) an individual shall be
indemnified unless it is proven by a final judicial adjudication that
indemnification is prohibited and (ii) payment or reimbursement of expenses,
subject to certain limitations, will be mandatory rather than permissive. M&I
has purchased directors' and officers' liability insurance which has coverage
limits of $40 million per occurrence and insures M&I's officers and directors
against certain liabilities which may arise under the Securities Act of 1933.
<PAGE>
Item 21. Exhibits and Financial Statement Schedules.
a. Exhibits
Exhibit No.
- -----------
2 Agreement and Plan of Reorganization dated as of June 15, 1994, as
amended and restated, by and between Marshall & Ilsley Corporation
and the Bank of Burlington (incorporated by reference to Appendix
A to the Prospectus/Proxy Statement included as part of this
Registration Statement)
5 Opinion of Godfrey & Kahn, S.C. regarding legality
8.1 Opinion of Godfrey & Kahn, S.C. regarding tax matters
8.2 Opinion of Michael, Best and Friedrich regarding tax matters
13 Bank of Burlington's Form 10-Q for the period ended September 30,
1994.
23.1 Consent of Arthur Andersen LLP
23.2 Consent of KPMG Peat Marwick LLP
23.3 Consent of Godfrey & Kahn, S.C. (contained in Exhibits 5 and 8.1)
23.4 Consent of Michael, Best and Friedrich (contained in Exhibit 8.2)
24 Powers of Attorney for the Directors of Marshall & Ilsley
Corporation
99 Form of Bank of Burlington Proxy
b. Financial Statement Schedules
Item 22. Undertakings.
(1) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933,
each filing of the Registrant's annual report pursuant to Section 13(a)
or Section 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in the registration statement shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(2) The undersigned Registrant hereby undertakes as follows:
prior to any public reoffering of the securities registered hereunder
through use of a prospectus which is a part of this registration
statement, by any person or party who is deemed to be an underwriter
within the meaning of Rule 145(c), the issuer undertakes that such
reoffering prospectus will contain the information called for by the
applicable registration form with respect to reofferings by persons who
may be deemed underwriters, in addition to the information called for by
the other items of the applicable form.
(3) The Registrant undertakes that every prospectus (i) that is
filed pursuant to paragraph (3) immediately preceding, or (ii) that
purports to meet the requirements of section 10(a)(3) of the Act and is
<PAGE>
used in connection with an offering of securities subject to Rule 415,
will be filed as a part of an amendment to the registration statement
and will not be used until such amendment is effective, and that, for
purposes of determining any liability under the Securities Act of 1933,
each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(4) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing
provisions referred to in Item 20 of this registration statement, or
otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against
public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities
(other than the payment by the Registrant of expenses incurred or paid
by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the
securities being registered, the Registrant will, unless in the opinion
of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act
and will be governed by the final adjudication of such issue.
(5) The undersigned Registrant hereby undertakes to respond to
requests for information that is incorporated by reference into the
Prospectus/Proxy Statement pursuant to Items 4, 10(b), 11 or 13 of this
Form, within one business day of receipt of such request, and to send
the incorporated documents by first class mail or other equally prompt
means. This includes information contained in documents filed
subsequent to the effective date of the registration statement through
the date of responding to the request.
(6) The undersigned Registrant hereby undertakes to supply by
means of a post-effective amendment all information concerning a
transaction, and the company being acquired involved therein, that was
not the subject of and included in the registration statement when it
became effective.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of
Milwaukee, State of Wisconsin, on November 21, 1994.
MARSHALL & ILSLEY CORPORATION
(Registrant)
By: /s/ J.B. Wigdale
-----------------------------------
J.B. Wigdale, Chairman of the Board
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dated indicated:
/s/ J.B. Wigdale Date: November 21, 1994
- ------------------------------------
J.B. Wigdale,
Chairman of the Board and a Director
(Chief Executive Officer)
/s/ G.H. Gunnlaugsson Date: November 21, 1994
- ------------------------------------
G.H. Gunnlaugsson,
Executive Vice President and a Director
(Chief Financial Officer)
/s/ P.R. Justiliano Date: November 21, 1994
- ------------------------------------
P.R. Justiliano
Senior Vice President and Corporate Controller
(Principal Accounting Officer)
Directors: Richard A. Abdoo, Oscar C. Boldt, J.P. Bolduc, Wendell F. Bueche,
J.F. Chait, Glenn A. Francke, G.H. Gunnlaugsson, Burleigh E.
Jacobs, Jack F. Kellner, James F. Kress, D.J. Kuester, Edward L.
Meyer, Jr., Don R. O'Hare, San W. Orr, Jr., Peter M. Platten, III,
J.A. Puelicher, Stuart W. Tisdale, J.B. Wigdale, James O. Wright
and Gus A. Zuehlke.
/s/ M.A. Hatfield Date: November 21, 1994
- ------------------------------------
M.A. Hatfield
As Attorney-in-Fact*
* Pursuant to authority granted by powers of attorney, copies of which are
filed herewith.
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
- -------
2 Agreement and Plan of Reorganization dated as of June 15, 1994, as
amended and restated, by and between Marshall & Ilsley Corporation
and the Bank of Burlington (incorporated by reference to Appendix
A to the Prospectus/Proxy Statement included as part of this
Registration Statement)........................................ *
5 Opinion of Godfrey & Kahn, S.C. regarding legality.............
8.1 Opinion of Godfrey & Kahn, S.C. regarding tax matters..........
8.2 Opinion of Michael, Best and Friedrich regarding tax matters...
13 Bank of Burlington's Form 10-Q for the period ended September
30, 1994....................................................... p
23.1 Consent of Arthur Andersen LLP.................................
23.2 Consent of KPMG Peat Marwick LLP...............................
23.3 Consent of Godfrey & Kahn, S.C. (contained in Exhibits 5 and 8.1)
23.4 Consent of Michael, Best and Friedrich (contained in Exhibit 8.2)
24 Powers of Attorney for the Directors of Marshall & Ilsley
Corporation....................................................
99 Form of Bank of Burlington Proxy...............................
__________
* Incorporated by reference as noted.
p Filed in paper format under cover of Form SE.
RJE-M&I Form S-4
M&I-S4.RJE
11/16/94
<PAGE>
EXHIBIT 5
<PAGE>
November 18, 1994
Marshall & Ilsley Corporation
770 North Water Street
Milwaukee, Wisconsin 53202
Gentlemen:
We have acted as your counsel in connection with the preparation of a
Registration Statement on Form S-4 filed with the Securities and Exchange
Commission on or about November 18, 1994 (the "Registration Statement") relating
to the issuance by you of up to 1,491,600 shares of Marshall & Ilsley
Corporation ("M&I") common stock, $1.00 par value ("M&I Stock"). The M&I Stock
is being registered in connection with the consolidation of the Bank of
Burlington, a Wisconsin State bank, with and into M&I Interim Bank, a Wisconsin
State bank which is a wholly-owned subsidiary of M&I, all in the manner set
forth in the Registration Statement and the Prospectus/Proxy Statement included
therein.
We have examined: (a) the Prospectus/Proxy Statement and the Registration
Statement, (b) M&I's Articles of Incorporation, as amended, and By-Laws, as
amended, (c) certain resolutions of M&I's Board of Directors, and (d) such other
proceedings, documents and records as we have deemed necessary to enable us to
render this opinion.
Based upon the foregoing, we are of the opinion that M&I Stock, when
issued as described in the Prospectus/Proxy Statement, will be duly authorized
and validly issued, fully paid and non-assessable except to the extent provided
in Section 180.0622(2)(b) of the Wisconsin Statutes, or any successor provision,
which provides that shareholders of a corporation organized under Chapter 180
of the Wisconsin Statutes may be assessed up to the par value of their shares
to satisfy the obligations of such corporation to its employees for services
rendered, but not exceeding six months service in the case of any individual
employee; certain Wisconsin courts have interpreted "par value" to mean the full
amount paid by the purchaser of shares upon the issuance thereof.
<PAGE>
Marshall & Ilsley Corporation
November 18, 1994
Page 2
We consent to the use of this opinion as an exhibit to the Registration
Statement. In giving this consent, however, we do not admit that we are
"experts" within the meaning of Section 11 of the Securities Act of 1933, as
amended, or within the category of persons whose consent is required by Section
7 of said Act.
Very truly yours,
GODFREY & KAHN, S.C.
PMK/ica
<PAGE>
EXHIBIT 8.1
<PAGE>
November 18, 1994
Marshall & Ilsley Corporation
770 North Water Street
Milwaukee, Wisconsin 53202
Re: Federal Income Tax Consequences of Consolidation between Bank
of Burlington and M&I Interim Bank
-------------------------------------------------
Gentlemen:
We have acted as counsel for Marshall & Ilsley Corporation ("M&I")
in connection with the negotiation and execution of the Agreement and Plan of
Reorganization dated June 15, 1994, as amended (the "Agreement"), between M&I
and the Bank of Burlington (the "Bank") pursuant to which M&I Interim Bank will
be consolidated with and into the Bank (the "Consolidation"). This letter
furnishes you with our opinion, as required pursuant to Section 6.03 of the
Agreement, as to certain of the federal income tax consequences of the
Consolidation.
The following is a description of the relevant terms of the
transaction based on our examination of the Agreement and our understanding of
the related factual background. All terms not otherwise defined herein shall
have the same meaning as set forth in the Agreement.
Parties
M&I, a Wisconsin corporation, is a registered multi-bank holding
company under the Bank Holding Company Act of 1956, as amended (the "BHCA").
M&I's principal assets are the stock of its subsidiaries. M&I presently owns
substantially all the outstanding capital stock of 34 banks and savings
associations with a total of 225 offices in Wisconsin and 12 offices in Arizona.
M&I also owns a number of companies engaged in businesses which are closely
related to banking, including the businesses of data processing, investment
management, trust services, mortgage banking, investment advice, commercial
leasing, venture capital, brokerage services and credit card processing. M&I
Stock is listed on the National Association of Securities Dealers Automated
Quotations/National Market System (the "NASDAQ/NMS").
<PAGE>
M&I Interim Bank, a Wisconsin state bank, is a wholly-owned
subsidiary of M&I organized solely for the purpose of effecting the
Consolidation.
The Bank, a Wisconsin state bank, provides retail and commercial
banking services and trust services for customers in parts of Racine, Kenosha,
Walworth and Waukesha Counties in Wisconsin.
Proposed Transaction
Pursuant to Section 1.01 of the Agreement, at the Effective Time,
M&I Interim Bank will be consolidated with and into the Bank. Under Section
2.02 of the Agreement, each share of Bank Stock outstanding at the Effective
Time, other than Dissenting Shares, will be converted into the right to receive
1.65 shares of M&I Stock. Under Section 2.03 of the Agreement, each Bank
shareholder will receive cash in lieu of any fractional shares of M&I Stock to
which he would otherwise be entitled in the Consolidation.
With regard to M&I's purpose for entering into the Agreement, M&I
believes a consolidation between M&I Interim Bank and the Bank will allow M&I
to enter and expand its operation in the fastest growing markets of the state
and to enhance efficiencies through the consolidation of duplicate operations.
M&I believes that the Bank represents a unique partner for M&I's expansion as
the markets served by the Bank and its product offerings provide an excellent
complement to those of M&I.
From the Bank's perspective, the affiliation with M&I will give the
Bank access to a range of financing alternatives to raise capital which are not
available to a stand-alone bank. In addition, the Bank, through its affiliation
with M&I, will be able to improve and expand its services and take advantage of
the expertise contained in the larger M&I organization. Further, the Bank will
be able to participate with other banks owned by M&I in extending credit to
customers whose needs could not be met by the Bank standing alone.
Factual Representations
In rendering our opinion, we have relied on representations received
from M&I, the Bank or shareholders holding at least five percent of the Bank
Stock, where appropriate, as to the following:
1. The Bank shareholder who owns at least five percent of the Bank
Stock and, to the best of the knowledge of the Bank's management, the remaining
Bank shareholders, have no plan or intention to sell, exchange or otherwise
dispose of a number of shares of M&I Stock received in the
<PAGE>
Consolidation that would reduce the shareholders' ownership of M&I Stock to a
number of shares having a value, as of the Effective Time, of less than 50
percent of the value of all of their former collective interests in Bank Stock
as of the same date. For purposes of this representation, shares of Bank Stock
exchanged for cash or other property, or exchanged for cash in lieu of
fractional shares of M&I Stock will be treated as outstanding Bank Stock at the
Effective Time. Moreover, M&I Stock and Bank Stock which is otherwise sold,
redeemed or disposed of before or after the Effective Time will be considered
in making this representation.
2. Following the transaction, the Bank will hold at least 90% of
the fair market value of its net assets and at least 70% of the fair market
value of its gross assets. Further, following the transaction, the Bank will
hold at least 90% of the fair market of the net assets and 70% of the fair
market value of the gross assets of M&I Interim Bank held immediately prior to
the transaction. For purposes of this representation, amounts paid by M&I
Interim Bank or the Bank for reorganization expenses and all redemptions and
distributions (except for regular, normal dividends) made by the Bank will be
included as assets of M&I Interim Bank or the Bank, respectively, immediately
prior to the transaction.
3. M&I has no plan or intention to issue additional shares of stock
of the Bank which would result in M&I losing control of the Bank within the
meaning of Section 368(c) of the Internal Revenue Code of 1986, as amended (the
"Code").
4. M&I has no plan or intention to reacquire any of the M&I Stock
issued in the transaction; however, M&I has an ongoing program to repurchase its
stock in the open market.
5. M&I has no plan or intention to liquidate the Bank, to merge the
Bank with or into another corporation, to sell or otherwise dispose of the stock
of the Bank, or to cause the Bank to sell or otherwise dispose of any of its
assets, except for dispositions made in the ordinary course of business or
transfers of assets to a corporation controlled by the Bank.
6. M&I Interim Bank will have no liabilities assumed by the Bank,
and will not transfer to the Bank any assets subject to liabilities in the
transaction.
7. Following the transaction, the Bank will continue its historic
business or use a significant portion of its historic business assets in a
business.
8. M&I, M&I Interim Bank, the Bank and its shareholders will pay
their respective expenses, if any, incurred in connection with the transaction.
<PAGE>
9. At the Effective Time, the fair market value of the Bank's
assets will equal or exceed the sum of the liabilities of the Bank plus the
liabilities, if any, to which the assets are subject.
10. There is no intercorporate indebtedness existing between M&I
and the Bank that was issued, acquired or will be settled at a discount.
11. None of the compensation received by any shareholders who are
employees of the Bank ("shareholder-employees") will be separate consideration
for, or allocable to, any of their shares of Bank Stock. None of the shares of
M&I Stock received by any shareholder-employees will be separate consideration
for, or allocable to, any employment agreement. Compensation paid to any
shareholder-employees will be for services actually rendered and will be
commensurate with amounts paid to third parties bargaining at arm's-length for
similar services.
12. The payment of cash in lieu of fractional shares of M&I Stock
is solely for the purpose of avoiding the expense and inconvenience to M&I of
issuing fractional shares and does not represent separately bargained-for
consideration. The total cash consideration that will be paid in the
transaction to the Bank shareholders instead of issuing fractional shares of M&I
Stock will not exceed one percent of the total consideration that will be issued
to the Bank shareholders in exchange for their shares of Bank Stock.
13. At the Effective Time, the Bank will not have outstanding any
warrants, options, convertible securities, or any other type of rights pursuant
to which any person could acquire Bank Stock.
Conclusions
Based on (i) our examination of the Agreement, (ii) the foregoing
description and the representations set forth above, (iii) the foregoing
description and the representations set forth above remaining true in all
material respects at the Effective Time, (iv) holders of not more than 5% in the
aggregate of the Bank stock dissenting from the Consolidation and (v) assuming
that the transaction is consummated in accordance with the terms of the
Agreement, it is our opinion that for federal income tax purposes:
1. The Consolidation will be a reorganization within the meaning
of Section 368(a)(1)(A) and (a)(2)(E) of the Code. M&I, M&I Interim Bank and
the Bank will each be "a party to the reorganization" within the meaning of Code
Section 368(b).
<PAGE>
2. Pursuant to Code Section 361(a) and 357(a), M&I Interim Bank
will recognize no gain or loss on the transfer of all of its assets to the Bank
in exchange for M&I Stock.
3. Pursuant to Code Section 1032(a), neither M&I nor the Bank will
recognize gain or loss on the receipt of M&I Interim Bank's assets.
4. Pursuant to Code Section 354(a)(1), the Bank shareholders will
recognize no gain or loss on the exchange of their Bank Stock solely in exchange
for M&I Stock.
5. Pursuant to Code Section 358(a)(1), the basis of the M&I Stock
received by the Bank shareholders (including any fractional share interests to
which they may be entitled) will be the same as the basis of the Bank Stock
surrendered in exchange therefor.
6. Pursuant to Code Section 1223(1), the holding period of the M&I
Stock to be received by the Bank shareholders (including any fractional share
interests to which they may be entitled) will include the period during which
the Bank Stock surrendered in exchange therefor is held, provided that the Bank
Stock surrendered is held as a capital asset at the Effective Time.
7. The payment of cash to the Bank shareholders in lieu of their
fractional interests of M&I Stock will be treated as if the fractional shares
were distributed as part of the exchange and then redeemed. These payments will
be treated as having been received as distributions in full payment in exchange
for stock redeemed as provided in Code Section 302(a) (Rev. Rul. 66-365, 1966-2
C.B. 116 and Rev. Proc. 77-41, 1977-2 C.B. 574).
8. Where a dissenting shareholder receives solely cash in exchange
for his Bank Stock, such cash will be treated as having been received by the
stockholder as a distribution in redemption of his Bank Stock subject to the
provisions and limitations of Code Section 302. (Rev. Rul. 74-502, 1974-2, C.B.
116).
Our opinion is not, nor should it be construed or relied upon as,
a guaranty, nor is it in any way binding on the Internal Revenue Service. It
is intended only to reflect our best professional judgment as to the matters set
forth herein as of the date hereof.
<PAGE>
We consent to the use of this opinion as an exhibit to the
Registration Statement. In giving this consent, however, we do not admit that
we are "experts" within the meaning of Section 11 of the Securities Act of 1933,
as amended, or within the category of persons whose consent is required by
Section 7 of said Act.
Very truly yours,
GODFREY & KAHN, S.C.
DSK/sn
<PAGE>
EXHIBIT 8.2
<PAGE>
!R!CASS2;EXIT;
Frank J. Pelisek
Writers Direct Dial (414) 225-4928
November 18, 1994
Bank of Burlington
200 South Pine Street
Box 600
Burlington, WI 53105
Attention: Mr. Patrick M. Lloyd, Chairman
RE: Bank of Burlington/Marshall & Ilsley Corporation;
Federal Income Tax Consequences of Reorganization
Gentlemen:
We have acted as counsel to the Bank of Burlington (the
"Bank") in connection with the negotiation and execution of the
Agreement and Plan of Reorganization (the "Agreement") dated June
15, 1994 by and between the Bank, Marshall & Ilsley Corporation
("M&I) and a related Consolidation Agreement (the "Consolidation
Agreement") between the Bank and M&I Interim Bank ("Interim Bank").
This letter will furnish you with our opinion, in accordance with
Section 6.03(a) of the Agreement, as to certain of the federal
income tax consequences of the transactions contemplated by the
Agreement. Terms which are capitalized herein and not otherwise
defined herein shall have the respective meanings assigned to them
in the Agreement.
In connection with this opinion, we have examined several
documents, certificates and records and we have considered such
issues of law as we believed to be involved.
The following is the description of the transaction based
upon our examination of the Agreement, the Consolidation Agreement,
the documents and matters referred to above and our understanding
of the factual background of the transaction:
The Bank is a Wisconsin state banking corporation. M&I
is a Wisconsin corporation operating as a bank holding company.
The outstanding common stock of M&I is widely held and publicly
traded. The outstanding stock of the Bank consists of 904,000
shares of common stock $1.25 par value (the "Bank Stock") owned
<PAGE>
by approximately 600 shareholders. There are no shares of
preferred stock outstanding.
M&I is acquiring the Bank in order to expand its holdings
into an additional geographic area of services whereas the Bank
considers it advantageous to become a subsidiary of the Corporation
to provide increased service to its customers and to gain increased
access to financial markets.
The Corporation will acquire all of the Bank Stock for a
exchange ratio equal to 1.65 shares of M&I Common Stock for each
share of Bank Stock. The plan of reorganization pursuant to which
the consolidation and the related actions will be consummated is as
follows. First, M&I has formed Interim Bank, a wholly-owned
subsidiary solely for the purpose of this transaction. Interim
Bank will merge with and into the Bank and the Bank Stock will be
exchanged for M&I Common Stock. In the consolidation, each share
of Bank Stock will be exchanged for 1.65 shares of M&I Common
Stock, subject to an anti-dilution adjustment provision set forth
in Section 2.06 of the Agreement.
Bank shareholders will receive cash in lieu of any
fractional shares to which they are entitled. M&I shall pay to
each Bank shareholder who would otherwise have received a
fractional share of M&I Common Stock an amount in cash determined
by multiplying (i) the M&I Share Price by (ii) the fraction of a
share of M&I Common Stock to which such shareholder would otherwise
be entitled. In addition, pursuant to Wisconsin law, Bank
shareholders are entitled to exercise dissenters' rights with
respect to the consolidation. Those shareholders (if any) who do
exercise dissenters' rights will be paid in cash by M&I.
Our opinion is based on the following assumptions:
(a) The exchange ratio of M&I Common Stock for Bank
Stock was negotiated at arm's length.
(b) The fair market value of the M&I Common Stock and
other consideration to be received by each Bank shareholder will be
approximately equal to the fair market value of the Bank Stock
surrendered in the exchange.
<PAGE>
(c) There is no plan or intention by the shareholders of
the Bank who own 5 percent or more of the Bank's stock, and to the
best of the knowledge of the management of the Bank, there is no
plan or intention on the part of the remaining shareholders of the
Bank to sell, exchange, or otherwise dispose of a number of shares
of M&I Common Stock to be received in the transaction which would
reduce the Bank shareholders' ownership of M&I Common Stock to a
number of shares having a value, as of the date of the transaction,
of less than 50 percent of the value of all of the formerly
outstanding stock of the Bank as of the same date. For purposes of
this representation, shares of Bank Stock exchanged for cash or
other property, surrendered by dissenters, or exchanged for cash in
lieu of fractional shares of M&I Common Stock will be treated as
outstanding Bank Stock and shares of M&I Common Stock held by Bank
shareholders and otherwise sold, redeemed, or disposed of prior or
subsequent to the transaction will be considered in making this
representation. Moreover, shares of Bank Stock and shares of M&I
Common Stock held by the Bank's shareholders and otherwise sold,
redeemed, or disposed of prior or subsequent to the transaction
will be considered in making this representation.
(d) Following the transaction, the Bank will hold at
least 90 percent of the fair market value of its net assets and at
least 70 percent of the fair market value of its gross assets and
at least 90 percent of the fair market value of Interim Bank's net
assets and at least 70 percent of the fair market value of Interim
Bank's gross assets held immediately prior to the transaction. For
purposes of this representation, amounts paid by the Bank or
Interim Bank to dissenters, amounts paid by the Bank or Interim
Bank to shareholders who receive cash or other property, amounts
paid by the Bank or Interim Bank to pay reorganization expenses and
all redemptions and distributions (except for regular, normal
dividends) made by the Bank will be included as assets of the Bank
or Interim Bank, respectively, immediately prior to the
transaction.
(e) Prior to the transaction, M&I will be in control of
Interim Bank within the meaning of section 368(c) of the Code.
(f) The Bank has no plan or intention to issue
additional shares of its stock that would result in M&I losing
control of the Bank within the meaning of section 368(c) of the
Code.
<PAGE>
(g) M&I has no plan or intention to reacquire any of its
stock issued in the transaction.
(h) M&I has no plan or intention to liquidate the Bank;
to merge the Bank with or into another corporation; to sell or
otherwise dispose of the stock of the Bank except for transfers of
stock to corporations controlled by M&I; or to cause the Bank to
sell or otherwise dispose of any of its assets or of any of the
assets acquired from Interim Bank, except for dispositions made in
the ordinary course of business or transfers of assets to a
corporation controlled by the Bank.
(i) Interim Bank will have no liabilities assumed by the
Bank, and will not transfer to the Bank any assets subject to
liabilities, in the transaction.
(j) Following the transaction, the Bank will continue
its historic business.
(k) M&I, Interim Bank, the Bank, and the shareholders of
the Bank will pay their respective expenses, if any, incurred in
connection with the proposed transaction.
(l) There is no intercorporate indebtedness existing
between M&I and the Bank or between Interim Bank and the Bank which
was issued, acquired, or will be settled at a discount.
(m) In the transaction, shares of Bank Stock
representing control of the Bank, as defined in section 368(c) of
the Code, will be exchanged solely for voting stock of M&I. For
purposes of this representation, Bank Stock exchanged for cash or
other property originating with M&I will be treated as outstanding
Bank Stock on the date of the proposed transaction.
(n) At the time of the transaction, the Bank will not
have outstanding any warrants, options, convertible securities, or
any other type of right pursuant to which any person could acquire
stock in the Bank that, if exercised or converted, would affect
M&I's acquisition or retention of control of the Bank as defined in
section 368(c) of the Code.
(o) M&I does not own, nor has it owned during the past
five years, any shares of the stock of the Bank.
<PAGE>
(p) No two parties to the transaction are investment
companies as defined in section 368(a)(2)(F)(iii) and (iv) of the
Code.
(q) On the date of the transaction, the fair market
value of the assets of the Bank will exceed the sum of its
liabilities, plus the amount of liabilities, if any, to which the
assets are subject.
(r) The Bank is not under the jurisdiction of a Court in
a Title 11 or similar case within the meaning of section
368(a)(3)(A) of the Code.
(s) The payment of cash in lieu of fractional shares of
M&I Common Stock is solely for the purpose of avoiding the expense
and inconvenience to M&I of issuing fractional shares and does not
represent separately bargained-for consideration. The total cash
consideration that will be paid in the transaction to the Bank
shareholders instead of issuing fractional shares of M&I Common
Stock will not exceed one percent of the total consideration that
will be issued in the transaction to the Bank shareholders in
exchange for their Bank Stock. The fractional share interests of
each Bank shareholder will be aggregated, and no Bank shareholder
will receive cash in lieu of fractional shares in an amount equal
to or greater than the value of one full share of M&I Common Stock.
(t) None of the compensation received by any
shareholder-employees of the Bank will be separate consideration
for, or allocable to, any of their shares of Bank Stock; none of
the shares of M&I Common Stock received by any shareholder-
employees of the Bank will be separate consideration for, or
allocable to, any employment agreement; and the compensation paid
to any shareholder-employees of the Bank will be for services
actually rendered and will be commensurate with amounts paid to
third parties bargaining at arm's-length for similar services.
Based upon our examination of the Agreement, the
documents and matters referred to herein, the foregoing factual
description of the transaction, the assumptions set forth herein
and assuming that the transaction is consummated in accordance with
the terms of the Agreement and the Consolidation Agreement, it is
our opinion that for federal income tax purposes:
<PAGE>
(1) The proposed consolidation will constitute a
reorganization within the meaning of section 368(a)(1)(A) of the
Code. The reorganization will not be disqualified by reason of the
fact that the voting stock of M&I will be used in the merger
(section 368(a)(2)(E)). M&I, Interim Bank, and the Bank will each
be a "party to a reorganization" within the meaning of section
368(b) of the Code.
(2) No gain or loss will be recognized to Interim Bank
upon the transfer of its assets to the Bank in exchange for Bank
Stock.
(3) No gain or loss will be recognized to the Bank upon
the receipt of the assets of Interim Bank in exchange for Bank
Stock.
(4) The basis of the assets of Interim Bank acquired by
the Bank will be the same in the hands of the Bank as the basis of
such assets in the hands of Interim Bank immediately prior to the
transaction.
(5) The holding period of the assets of Interim Bank in
the hands of the Bank will include the period during which such
assets were held by Interim Bank.
(6) No gain or loss will be recognized to M&I upon the
receipt of Bank Stock solely in exchange for M&I Common Stock.
(7) No gain or loss will be recognized to the Bank
shareholders upon the exchange of Bank Stock solely for M&I Common
Stock.
(8) The basis of the M&I Common Stock to be received by
the Bank shareholders will be the same as the basis of the Bank
Stock surrendered in exchange therefor.
(9) The holding period of the M&I Common Stock to be
received by the Bank shareholders will include the holding period
of the Bank Stock surrendered in exchange therefor, provided that
the Bank Stock was held as a capital asset on the date of the
exchange.
<PAGE>
(10) Where a shareholder of the Bank dissents to the
proposed transaction and receives solely cash in exchange for his
or her Bank Stock, such cash will be treated as having been
received by the shareholder as a distribution in redemption of his
or her stock subject to the provisions and limitations of section
302 of the Code. Where, as a result of such distribution, the Bank
shareholder neither holds any stock of M&I directly, nor is deemed
to own any such stock under the constructive ownership rules of
section 318(a), the redemption will be a complete termination of
interest within the meaning of section 302(b)(3) and will be
treated as a distribution in full payment in exchange for the
shares redeemed as provided in section 302(a). Accordingly, such
shareholders will recognize gain or loss under section 1001
measured by the difference between the amount of cash received and
his or her adjusted basis in the Bank Stock surrendered.
(11) The payment of cash in lieu of fractional shares of
M&I Common Stock will be treated as if the fractional shares were
distributed as part of the exchange and then redeemed by M&I.
These cash payments will be treated as having been received as
distributions in full payment in exchange for stock redeemed as
provided in section 302(a) of the Code (Rev. Rul. 66-365, 1966-2
C.B. 116; Rev. Proc. 77-41, 1977-2 C.B. 574).
No opinion is expressed as to the tax treatment of the
transaction under the provisions of any other sections of the Code
or Income Tax Regulations which also may be applicable thereto, or
to the tax treatment of any conditions existing at the time of, or
effects resulting from, the transaction which are not specifically
covered by the items set forth above.
Our opinions are not, nor should they be construed or
relied upon as, guarantees, nor are they in any way binding on the
Internal Revenue Service. They are intended only to reflect our
best professional judgment as to the matters set forth herein.
This opinion is furnished solely for your benefit and is
not be released or distributed to any other person without the
prior written consent of this firm.
We consent to the use of this opinion in the Registration
Statement filed with the Securities and Exchange Commission on Form
S-4 relating to the shares of M&I Common Stock
<PAGE>
to be issued in the transaction and to the reference to our firm
under caption "The Consolidation - Certain Federal Income Tax
Consequences" in the Proxy Statement/Prospectus.
Kindest personal regards,
MICHAEL BEST & FRIEDRICH
By
Frank J. Pelisek
FJP/gaw
R:\XF\BUSINESS\18380\0001\JRC0020
<PAGE>
EXHIBIT 23.1
<PAGE>
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
-----------------------------------------
As independent public accountants, we hereby consent to the
incorporation by reference in this Registration Statement on Form S-4 of our
report dated January 28, 1994 in Marshall & Ilsley Corporation's Annual Report
on Form 10-K for the year ended December 31, 1993, and our report dated May 31,
1994 in Marshall & Ilsley Corporation's Current Report on Form 8-K dated
September 26, 1994, and to all references to our firm in this Registration
Statement.
ARTHUR ANDERSEN LLP
Milwaukee, Wisconsin,
November 18, 1994.
RJE-Consent of Independent Public
(M&I-cip.rje)
11/16/94
<PAGE>
EXHIBIT 23.2
<PAGE>
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
-----------------------------------------
The Board of Directors
Bank of Burlington:
We consent to the use of our report incorporated herein by reference and to the
reference to our firm under the heading "Experts" in the prospectus.
KPMG PEAT MARWICK LLP
Milwaukee, Wisconsin
November 18, 1994.
PMK-Burlington KPMG Consent
BOB-KPMG.PMK
11/18/94
<PAGE>
EXHIBIT 24
<PAGE>
DIRECTOR'S POWER OF ATTORNEY
----------------------------
The undersigned Director of Marshall & Ilsley Corporation, a
Wisconsin corporation, hereby constitutes and designates each of J.B. Wigdale,
G.H. Gunnlaugsson and M.A. Hatfield, with the power of substitution, the true
and lawful attorney-in-fact of the undersigned to sign for him in his name,
place and stead, in any and all capacities, the Registration Statement on Form
S-4 of Marshall & Ilsley Corporation relating to the proposed consolidation of
the Bank of Burlington with M&I Interim Bank, a wholly-owned subsidiary of
Marshall & Ilsley Corporation, and any and all amendments (including post-
effective amendments) and/or supplements to said Form S-4, generally to do all
such things in his name and behalf in his capacity as a director to enable
Marshall & Ilsley Corporation to comply with the provisions of the Securities
Act of 1933, as amended, the Securities Exchange Act of 1934, as amended, and
all requirements of the Securities and Exchange Commission, hereby ratifying and
confirming his signature as it may be signed by said attorney-in-fact to said
Form S-4 and any and all amendments (including post-effective amendments) and/or
supplements thereto.
Dated this 23rd day of August, 1994.
/s/ Richard A. Abdoo
-------------------------------
Richard A. Abdoo
<PAGE>
DIRECTOR'S POWER OF ATTORNEY
----------------------------
The undersigned Director of Marshall & Ilsley Corporation, a
Wisconsin corporation, hereby constitutes and designates each of J.B. Wigdale,
G.H. Gunnlaugsson and M.A. Hatfield, with the power of substitution, the true
and lawful attorney-in-fact of the undersigned to sign for him in his name,
place and stead, in any and all capacities, the Registration Statement on Form
S-4 of Marshall & Ilsley Corporation relating to the proposed consolidation of
the Bank of Burlington with M&I Interim Bank, a wholly-owned subsidiary of
Marshall & Ilsley Corporation, and any and all amendments (including post-
effective amendments) and/or supplements to said Form S-4, generally to do all
such things in his name and behalf in his capacity as a director to enable
Marshall & Ilsley Corporation to comply with the provisions of the Securities
Act of 1933, as amended, the Securities Exchange Act of 1934, as amended, and
all requirements of the Securities and Exchange Commission, hereby ratifying and
confirming his signature as it may be signed by said attorney-in-fact to said
Form S-4 and any and all amendments (including post-effective amendments) and/or
supplements thereto.
Dated this 23rd day of August, 1994.
/s/ Oscar C. Boldt
-------------------------------
Oscar C. Boldt
<PAGE>
DIRECTOR'S POWER OF ATTORNEY
----------------------------
The undersigned Director of Marshall & Ilsley Corporation, a
Wisconsin corporation, hereby constitutes and designates each of J.B. Wigdale,
G.H. Gunnlaugsson and M.A. Hatfield, with the power of substitution, the true
and lawful attorney-in-fact of the undersigned to sign for him in his name,
place and stead, in any and all capacities, the Registration Statement on Form
S-4 of Marshall & Ilsley Corporation relating to the proposed consolidation of
the Bank of Burlington with M&I Interim Bank, a wholly-owned subsidiary of
Marshall & Ilsley Corporation, and any and all amendments (including post-
effective amendments) and/or supplements to said Form S-4, generally to do all
such things in his name and behalf in his capacity as a director to enable
Marshall & Ilsley Corporation to comply with the provisions of the Securities
Act of 1933, as amended, the Securities Exchange Act of 1934, as amended, and
all requirements of the Securities and Exchange Commission, hereby ratifying and
confirming his signature as it may be signed by said attorney-in-fact to said
Form S-4 and any and all amendments (including post-effective amendments) and/or
supplements thereto.
Dated this 22nd day of August, 1994.
/s/ J.P. Bolduc
-------------------------------
J.P. Bolduc
<PAGE>
DIRECTOR'S POWER OF ATTORNEY
----------------------------
The undersigned Director of Marshall & Ilsley Corporation, a
Wisconsin corporation, hereby constitutes and designates each of J.B. Wigdale,
G.H. Gunnlaugsson and M.A. Hatfield, with the power of substitution, the true
and lawful attorney-in-fact of the undersigned to sign for him in his name,
place and stead, in any and all capacities, the Registration Statement on Form
S-4 of Marshall & Ilsley Corporation relating to the proposed consolidation of
the Bank of Burlington with M&I Interim Bank, a wholly-owned subsidiary of
Marshall & Ilsley Corporation, and any and all amendments (including post-
effective amendments) and/or supplements to said Form S-4, generally to do all
such things in his name and behalf in his capacity as a director to enable
Marshall & Ilsley Corporation to comply with the provisions of the Securities
Act of 1933, as amended, the Securities Exchange Act of 1934, as amended, and
all requirements of the Securities and Exchange Commission, hereby ratifying and
confirming his signature as it may be signed by said attorney-in-fact to said
Form S-4 and any and all amendments (including post-effective amendments) and/or
supplements thereto.
Dated this 23rd day of August, 1994.
/s/ Wendell F. Bueche
-------------------------------
Wendell F. Bueche
<PAGE>
DIRECTOR'S POWER OF ATTORNEY
----------------------------
The undersigned Director of Marshall & Ilsley Corporation, a
Wisconsin corporation, hereby constitutes and designates each of J.B. Wigdale,
G.H. Gunnlaugsson and M.A. Hatfield, with the power of substitution, the true
and lawful attorney-in-fact of the undersigned to sign for him in his name,
place and stead, in any and all capacities, the Registration Statement on Form
S-4 of Marshall & Ilsley Corporation relating to the proposed consolidation of
the Bank of Burlington with M&I Interim Bank, a wholly-owned subsidiary of
Marshall & Ilsley Corporation, and any and all amendments (including post-
effective amendments) and/or supplements to said Form S-4, generally to do all
such things in his name and behalf in his capacity as a director to enable
Marshall & Ilsley Corporation to comply with the provisions of the Securities
Act of 1933, as amended, the Securities Exchange Act of 1934, as amended, and
all requirements of the Securities and Exchange Commission, hereby ratifying and
confirming his signature as it may be signed by said attorney-in-fact to said
Form S-4 and any and all amendments (including post-effective amendments) and/or
supplements thereto.
Dated this 23rd day of August, 1994.
/s/ Jon F. Chait
-------------------------------
Jon F. Chait
<PAGE>
DIRECTOR'S POWER OF ATTORNEY
----------------------------
The undersigned Director of Marshall & Ilsley Corporation, a
Wisconsin corporation, hereby constitutes and designates each of J.B. Wigdale,
G.H. Gunnlaugsson and M.A. Hatfield, with the power of substitution, the true
and lawful attorney-in-fact of the undersigned to sign for him in his name,
place and stead, in any and all capacities, the Registration Statement on Form
S-4 of Marshall & Ilsley Corporation relating to the proposed consolidation of
the Bank of Burlington with M&I Interim Bank, a wholly-owned subsidiary of
Marshall & Ilsley Corporation, and any and all amendments (including post-
effective amendments) and/or supplements to said Form S-4, generally to do all
such things in his name and behalf in his capacity as a director to enable
Marshall & Ilsley Corporation to comply with the provisions of the Securities
Act of 1933, as amended, the Securities Exchange Act of 1934, as amended, and
all requirements of the Securities and Exchange Commission, hereby ratifying and
confirming his signature as it may be signed by said attorney-in-fact to said
Form S-4 and any and all amendments (including post-effective amendments) and/or
supplements thereto.
Dated this 23rd day of August, 1994.
/s/ Glenn A. Francke
-------------------------------
Glenn A. Francke
<PAGE>
DIRECTOR'S POWER OF ATTORNEY
----------------------------
The undersigned Director of Marshall & Ilsley Corporation, a
Wisconsin corporation, hereby constitutes and designates each of J.B. Wigdale,
G.H. Gunnlaugsson and M.A. Hatfield, with the power of substitution, the true
and lawful attorney-in-fact of the undersigned to sign for him in his name,
place and stead, in any and all capacities, the Registration Statement on Form
S-4 of Marshall & Ilsley Corporation relating to the proposed consolidation of
the Bank of Burlington with M&I Interim Bank, a wholly-owned subsidiary of
Marshall & Ilsley Corporation, and any and all amendments (including post-
effective amendments) and/or supplements to said Form S-4, generally to do all
such things in his name and behalf in his capacity as a director to enable
Marshall & Ilsley Corporation to comply with the provisions of the Securities
Act of 1933, as amended, the Securities Exchange Act of 1934, as amended, and
all requirements of the Securities and Exchange Commission, hereby ratifying and
confirming his signature as it may be signed by said attorney-in-fact to said
Form S-4 and any and all amendments (including post-effective amendments) and/or
supplements thereto.
Dated this 23rd day of August, 1994.
/s/ G.H. Gunnlaugsson
-------------------------------
G.H. Gunnlaugsson
<PAGE>
DIRECTOR'S POWER OF ATTORNEY
----------------------------
The undersigned Director of Marshall & Ilsley Corporation, a
Wisconsin corporation, hereby constitutes and designates each of J.B. Wigdale,
G.H. Gunnlaugsson and M.A. Hatfield, with the power of substitution, the true
and lawful attorney-in-fact of the undersigned to sign for him in his name,
place and stead, in any and all capacities, the Registration Statement on Form
S-4 of Marshall & Ilsley Corporation relating to the proposed consolidation of
the Bank of Burlington with M&I Interim Bank, a wholly-owned subsidiary of
Marshall & Ilsley Corporation, and any and all amendments (including post-
effective amendments) and/or supplements to said Form S-4, generally to do all
such things in his name and behalf in his capacity as a director to enable
Marshall & Ilsley Corporation to comply with the provisions of the Securities
Act of 1933, as amended, the Securities Exchange Act of 1934, as amended, and
all requirements of the Securities and Exchange Commission, hereby ratifying and
confirming his signature as it may be signed by said attorney-in-fact to said
Form S-4 and any and all amendments (including post-effective amendments) and/or
supplements thereto.
Dated this 23rd day of August, 1994.
/s/ Burleigh E. Jacobs
-------------------------------
Burleigh E. Jacobs
<PAGE>
DIRECTOR'S POWER OF ATTORNEY
----------------------------
The undersigned Director of Marshall & Ilsley Corporation, a
Wisconsin corporation, hereby constitutes and designates each of J.B. Wigdale,
G.H. Gunnlaugsson and M.A. Hatfield, with the power of substitution, the true
and lawful attorney-in-fact of the undersigned to sign for him in his name,
place and stead, in any and all capacities, the Registration Statement on Form
S-4 of Marshall & Ilsley Corporation relating to the proposed consolidation of
the Bank of Burlington with M&I Interim Bank, a wholly-owned subsidiary of
Marshall & Ilsley Corporation, and any and all amendments (including post-
effective amendments) and/or supplements to said Form S-4, generally to do all
such things in his name and behalf in his capacity as a director to enable
Marshall & Ilsley Corporation to comply with the provisions of the Securities
Act of 1933, as amended, the Securities Exchange Act of 1934, as amended, and
all requirements of the Securities and Exchange Commission, hereby ratifying and
confirming his signature as it may be signed by said attorney-in-fact to said
Form S-4 and any and all amendments (including post-effective amendments) and/or
supplements thereto.
Dated this 23rd day of August, 1994.
/s/ Jack F. Kellner
-------------------------------
Jack F. Kellner
<PAGE>
DIRECTOR'S POWER OF ATTORNEY
----------------------------
The undersigned Director of Marshall & Ilsley Corporation, a
Wisconsin corporation, hereby constitutes and designates each of J.B. Wigdale,
G.H. Gunnlaugsson and M.A. Hatfield, with the power of substitution, the true
and lawful attorney-in-fact of the undersigned to sign for him in his name,
place and stead, in any and all capacities, the Registration Statement on Form
S-4 of Marshall & Ilsley Corporation relating to the proposed consolidation of
the Bank of Burlington with M&I Interim Bank, a wholly-owned subsidiary of
Marshall & Ilsley Corporation, and any and all amendments (including post-
effective amendments) and/or supplements to said Form S-4, generally to do all
such things in his name and behalf in his capacity as a director to enable
Marshall & Ilsley Corporation to comply with the provisions of the Securities
Act of 1933, as amended, the Securities Exchange Act of 1934, as amended, and
all requirements of the Securities and Exchange Commission, hereby ratifying and
confirming his signature as it may be signed by said attorney-in-fact to said
Form S-4 and any and all amendments (including post-effective amendments) and/or
supplements thereto.
Dated this 23rd day of August, 1994.
/s/ James F. Kress
-------------------------------
James F. Kress
<PAGE>
DIRECTOR'S POWER OF ATTORNEY
----------------------------
The undersigned Director of Marshall & Ilsley Corporation, a
Wisconsin corporation, hereby constitutes and designates each of J.B. Wigdale,
G.H. Gunnlaugsson and M.A. Hatfield, with the power of substitution, the true
and lawful attorney-in-fact of the undersigned to sign for him in his name,
place and stead, in any and all capacities, the Registration Statement on Form
S-4 of Marshall & Ilsley Corporation relating to the proposed consolidation of
the Bank of Burlington with M&I Interim Bank, a wholly-owned subsidiary of
Marshall & Ilsley Corporation, and any and all amendments (including post-
effective amendments) and/or supplements to said Form S-4, generally to do all
such things in his name and behalf in his capacity as a director to enable
Marshall & Ilsley Corporation to comply with the provisions of the Securities
Act of 1933, as amended, the Securities Exchange Act of 1934, as amended, and
all requirements of the Securities and Exchange Commission, hereby ratifying and
confirming his signature as it may be signed by said attorney-in-fact to said
Form S-4 and any and all amendments (including post-effective amendments) and/or
supplements thereto.
Dated this 23rd day of August, 1994.
/s/ D.J. Kuester
-------------------------------
D.J. Kuester
<PAGE>
DIRECTOR'S POWER OF ATTORNEY
----------------------------
The undersigned Director of Marshall & Ilsley Corporation, a
Wisconsin corporation, hereby constitutes and designates each of J.B. Wigdale,
G.H. Gunnlaugsson and M.A. Hatfield, with the power of substitution, the true
and lawful attorney-in-fact of the undersigned to sign for him in his name,
place and stead, in any and all capacities, the Registration Statement on Form
S-4 of Marshall & Ilsley Corporation relating to the proposed consolidation of
the Bank of Burlington with M&I Interim Bank, a wholly-owned subsidiary of
Marshall & Ilsley Corporation, and any and all amendments (including post-
effective amendments) and/or supplements to said Form S-4, generally to do all
such things in his name and behalf in his capacity as a director to enable
Marshall & Ilsley Corporation to comply with the provisions of the Securities
Act of 1933, as amended, the Securities Exchange Act of 1934, as amended, and
all requirements of the Securities and Exchange Commission, hereby ratifying and
confirming his signature as it may be signed by said attorney-in-fact to said
Form S-4 and any and all amendments (including post-effective amendments) and/or
supplements thereto.
Dated this 23rd day of August, 1994.
/s/ Edward L. Meyer, Jr.
-------------------------------
Edward L. Meyer, Jr.
<PAGE>
DIRECTOR'S POWER OF ATTORNEY
----------------------------
The undersigned Director of Marshall & Ilsley Corporation, a
Wisconsin corporation, hereby constitutes and designates each of J.B. Wigdale,
G.H. Gunnlaugsson and M.A. Hatfield, with the power of substitution, the true
and lawful attorney-in-fact of the undersigned to sign for him in his name,
place and stead, in any and all capacities, the Registration Statement on Form
S-4 of Marshall & Ilsley Corporation relating to the proposed consolidation of
the Bank of Burlington with M&I Interim Bank, a wholly-owned subsidiary of
Marshall & Ilsley Corporation, and any and all amendments (including post-
effective amendments) and/or supplements to said Form S-4, generally to do all
such things in his name and behalf in his capacity as a director to enable
Marshall & Ilsley Corporation to comply with the provisions of the Securities
Act of 1933, as amended, the Securities Exchange Act of 1934, as amended, and
all requirements of the Securities and Exchange Commission, hereby ratifying and
confirming his signature as it may be signed by said attorney-in-fact to said
Form S-4 and any and all amendments (including post-effective amendments) and/or
supplements thereto.
Dated this 29th day of August, 1994.
/s/ Don R. O'Hare
-------------------------------
Don R. O'Hare
<PAGE>
DIRECTOR'S POWER OF ATTORNEY
----------------------------
The undersigned Director of Marshall & Ilsley Corporation, a
Wisconsin corporation, hereby constitutes and designates each of J.B. Wigdale,
G.H. Gunnlaugsson and M.A. Hatfield, with the power of substitution, the true
and lawful attorney-in-fact of the undersigned to sign for him in his name,
place and stead, in any and all capacities, the Registration Statement on Form
S-4 of Marshall & Ilsley Corporation relating to the proposed consolidation of
the Bank of Burlington with M&I Interim Bank, a wholly-owned subsidiary of
Marshall & Ilsley Corporation, and any and all amendments (including post-
effective amendments) and/or supplements to said Form S-4, generally to do all
such things in his name and behalf in his capacity as a director to enable
Marshall & Ilsley Corporation to comply with the provisions of the Securities
Act of 1933, as amended, the Securities Exchange Act of 1934, as amended, and
all requirements of the Securities and Exchange Commission, hereby ratifying and
confirming his signature as it may be signed by said attorney-in-fact to said
Form S-4 and any and all amendments (including post-effective amendments) and/or
supplements thereto.
Dated this 23rd day of August, 1994.
/s/ San W. Orr, Jr.
-------------------------------
San W. Orr, Jr.
<PAGE>
DIRECTOR'S POWER OF ATTORNEY
----------------------------
The undersigned Director of Marshall & Ilsley Corporation, a
Wisconsin corporation, hereby constitutes and designates each of J.B. Wigdale,
G.H. Gunnlaugsson and M.A. Hatfield, with the power of substitution, the true
and lawful attorney-in-fact of the undersigned to sign for him in his name,
place and stead, in any and all capacities, the Registration Statement on Form
S-4 of Marshall & Ilsley Corporation relating to the proposed consolidation of
the Bank of Burlington with M&I Interim Bank, a wholly-owned subsidiary of
Marshall & Ilsley Corporation, and any and all amendments (including post-
effective amendments) and/or supplements to said Form S-4, generally to do all
such things in his name and behalf in his capacity as a director to enable
Marshall & Ilsley Corporation to comply with the provisions of the Securities
Act of 1933, as amended, the Securities Exchange Act of 1934, as amended, and
all requirements of the Securities and Exchange Commission, hereby ratifying and
confirming his signature as it may be signed by said attorney-in-fact to said
Form S-4 and any and all amendments (including post-effective amendments) and/or
supplements thereto.
Dated this 23rd day of August, 1994.
/s/ Peter M. Platten, III
-------------------------------
Peter M. Platten, III
<PAGE>
DIRECTOR'S POWER OF ATTORNEY
----------------------------
The undersigned Director of Marshall & Ilsley Corporation, a
Wisconsin corporation, hereby constitutes and designates each of J.B. Wigdale,
G.H. Gunnlaugsson and M.A. Hatfield, with the power of substitution, the true
and lawful attorney-in-fact of the undersigned to sign for him in his name,
place and stead, in any and all capacities, the Registration Statement on Form
S-4 of Marshall & Ilsley Corporation relating to the proposed consolidation of
the Bank of Burlington with M&I Interim Bank, a wholly-owned subsidiary of
Marshall & Ilsley Corporation, and any and all amendments (including post-
effective amendments) and/or supplements to said Form S-4, generally to do all
such things in his name and behalf in his capacity as a director to enable
Marshall & Ilsley Corporation to comply with the provisions of the Securities
Act of 1933, as amended, the Securities Exchange Act of 1934, as amended, and
all requirements of the Securities and Exchange Commission, hereby ratifying and
confirming his signature as it may be signed by said attorney-in-fact to said
Form S-4 and any and all amendments (including post-effective amendments) and/or
supplements thereto.
Dated this 23rd day of August, 1994.
/s/ J.A. Puelicher
-------------------------------
J.A. Puelicher
<PAGE>
DIRECTOR'S POWER OF ATTORNEY
----------------------------
The undersigned Director of Marshall & Ilsley Corporation, a
Wisconsin corporation, hereby constitutes and designates each of J.B. Wigdale,
G.H. Gunnlaugsson and M.A. Hatfield, with the power of substitution, the true
and lawful attorney-in-fact of the undersigned to sign for him in his name,
place and stead, in any and all capacities, the Registration Statement on Form
S-4 of Marshall & Ilsley Corporation relating to the proposed consolidation of
the Bank of Burlington with M&I Interim Bank, a wholly-owned subsidiary of
Marshall & Ilsley Corporation, and any and all amendments (including post-
effective amendments) and/or supplements to said Form S-4, generally to do all
such things in his name and behalf in his capacity as a director to enable
Marshall & Ilsley Corporation to comply with the provisions of the Securities
Act of 1933, as amended, the Securities Exchange Act of 1934, as amended, and
all requirements of the Securities and Exchange Commission, hereby ratifying and
confirming his signature as it may be signed by said attorney-in-fact to said
Form S-4 and any and all amendments (including post-effective amendments) and/or
supplements thereto.
Dated this 22nd day of August, 1994.
/s/ Stuart W. Tisdale
-------------------------------
Stuart W. Tisdale
<PAGE>
DIRECTOR'S POWER OF ATTORNEY
----------------------------
The undersigned Director of Marshall & Ilsley Corporation, a
Wisconsin corporation, hereby constitutes and designates each of J.B. Wigdale,
G.H. Gunnlaugsson and M.A. Hatfield, with the power of substitution, the true
and lawful attorney-in-fact of the undersigned to sign for him in his name,
place and stead, in any and all capacities, the Registration Statement on Form
S-4 of Marshall & Ilsley Corporation relating to the proposed consolidation of
the Bank of Burlington with M&I Interim Bank, a wholly-owned subsidiary of
Marshall & Ilsley Corporation, and any and all amendments (including post-
effective amendments) and/or supplements to said Form S-4, generally to do all
such things in his name and behalf in his capacity as a director to enable
Marshall & Ilsley Corporation to comply with the provisions of the Securities
Act of 1933, as amended, the Securities Exchange Act of 1934, as amended, and
all requirements of the Securities and Exchange Commission, hereby ratifying and
confirming his signature as it may be signed by said attorney-in-fact to said
Form S-4 and any and all amendments (including post-effective amendments) and/or
supplements thereto.
Dated this 23rd day of August, 1994.
/s/ J.B. Wigdale
-------------------------------
J.B. Wigdale
<PAGE>
DIRECTOR'S POWER OF ATTORNEY
----------------------------
The undersigned Director of Marshall & Ilsley Corporation, a
Wisconsin corporation, hereby constitutes and designates each of J.B. Wigdale,
G.H. Gunnlaugsson and M.A. Hatfield, with the power of substitution, the true
and lawful attorney-in-fact of the undersigned to sign for him in his name,
place and stead, in any and all capacities, the Registration Statement on Form
S-4 of Marshall & Ilsley Corporation relating to the proposed consolidation of
the Bank of Burlington with M&I Interim Bank, a wholly-owned subsidiary of
Marshall & Ilsley Corporation, and any and all amendments (including post-
effective amendments) and/or supplements to said Form S-4, generally to do all
such things in his name and behalf in his capacity as a director to enable
Marshall & Ilsley Corporation to comply with the provisions of the Securities
Act of 1933, as amended, the Securities Exchange Act of 1934, as amended, and
all requirements of the Securities and Exchange Commission, hereby ratifying and
confirming his signature as it may be signed by said attorney-in-fact to said
Form S-4 and any and all amendments (including post-effective amendments) and/or
supplements thereto.
Dated this 23rd day of August, 1994.
/s/ James O. Wright
-------------------------------
James O. Wright
<PAGE>
DIRECTOR'S POWER OF ATTORNEY
----------------------------
The undersigned Director of Marshall & Ilsley Corporation, a
Wisconsin corporation, hereby constitutes and designates each of J.B. Wigdale,
G.H. Gunnlaugsson and M.A. Hatfield, with the power of substitution, the true
and lawful attorney-in-fact of the undersigned to sign for him in his name,
place and stead, in any and all capacities, the Registration Statement on Form
S-4 of Marshall & Ilsley Corporation relating to the proposed consolidation of
the Bank of Burlington with M&I Interim Bank, a wholly-owned subsidiary of
Marshall & Ilsley Corporation, and any and all amendments (including post-
effective amendments) and/or supplements to said Form S-4, generally to do all
such things in his name and behalf in his capacity as a director to enable
Marshall & Ilsley Corporation to comply with the provisions of the Securities
Act of 1933, as amended, the Securities Exchange Act of 1934, as amended, and
all requirements of the Securities and Exchange Commission, hereby ratifying and
confirming his signature as it may be signed by said attorney-in-fact to said
Form S-4 and any and all amendments (including post-effective amendments) and/or
supplements thereto.
Dated this 23rd day of August, 1994.
/s/ Gus A. Zuehlke
-------------------------------
Gus A. Zuehlke
<PAGE>
EXHIBIT 99
<PAGE>
Bank of Burlington
PROXY SOLICITED ON BEHALF OF THE BANK'S BOARD OF DIRECTORS
Please sign and return immediately
I, the undersigned shareholder of the Bank of Burlington,
Wisconsin, revoke any previous proxy I may have given and appoint Robert Wenke,
Patrick M. Lloyd and John W. Schnurr as my attorneys, with full power of
substitution, to vote all of the stock of this bank in my name (on its books)
at the special meeting of stockholders at four o'clock P.M. on January 12, 1995,
or any adjournment, as follows:
Agreement and Plan of Reorganization
Proposal to approve the Agreement and Plan of Reorganization dated
June 15, 1994, as amended and restated, between the Bank and
Marshall & Ilsley Corporation ("M&I") and a related Consolidation
Agreement between M&I Interim Bank ("M&I Interim Bank") and the
Bank, pursuant to which M&I Interim Bank will be consolidated with
and into the Bank (the "Consolidation") and each outstanding share
of the Bank's Common Stock, $1.25 par value, will be converted into
the right to receive 1.65 shares of M&I's Common Stock, $1.00
par value, and cash in lieu of fractional shares.
VOTE FOR VOTE AGAINST ABSTAIN
[ ] [ ] [ ]
The above item is proposed by the Board of Directors, and
it recommends a vote in favor of such item.
THIS PROXY, WHEN PROPERLY EXECUTED, WILL BE VOTED IN THE
MANNER DIRECTED HEREIN BY THE UNDERSIGNED STOCKHOLDER. IF NO DIRECTION IS
MADE, THIS PROXY WILL BE VOTED FOR THE PROPOSAL.
I confer discretionary authority on the above-named
individuals with respect to any other matters which properly come before the
meeting, which approval shall not constitute ratification of actions taken at
that meeting.
IN EXERCISING DISCRETIONARY AUTHORITY, SHARES WILL BE VOTED
ACCORDING TO THE RECOMMENDATIONS OF THE BOARD OF DIRECTORS.
Dated: , 199
----------------------- --
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(please fill in date) (Signature of Stockholder)
------------------------------------
(Signature of Stockholder)
(When signing as personal representative, trustee, guardian, etc., please give
your full title. If more than one trustee, all should sign, unless any one
person is authorized to act. If shares are held in joint names, either or both
may sign).
