<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 11, 1998
Registration No. 333-
-------------
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------
FORM S-4
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
------------------------
MERCANTILE BANCORPORATION INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
MISSOURI 6712 43-0951744
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification Number)
</TABLE>
P.O. Box 524
St. Louis, Missouri 63166-0524
(314) 418-2525
(Address, including ZIP code, and telephone number, including area code, of
registrant's principal executive offices)
------------------------
JON W. BILSTROM, ESQ.
General Counsel and Secretary
Mercantile Bancorporation Inc.
P.O. Box 524
St. Louis, Missouri 63166-0524
(314) 418-2525
(Name, address, including ZIP code, and telephone number, including area code,
of agent for service)
------------------------
Copy to:
<TABLE>
<S> <C> <C>
JOHN Q. ARNOLD ROBERT M. LaROSE, ESQ. MICHELE D. VAILLANCOURT, ESQ.
Vice Chairman and Chief Financial Officer Thompson Coburn Winthrop & Weinstine, P.A.
Mercantile Bancorporation Inc. One Mercantile Center 3000 Dain Rauscher Plaza
P.O. Box 524 St. Louis, Missouri 63101 60 South Sixth Street
St. Louis, Missouri 63166-0524 (314) 552-6000 Minneapolis, Minnesota 55402
(314) 418-2525 (612) 347-0700
</TABLE>
-------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE OF THE SECURITIES TO THE
PUBLIC: As soon as practicable after the effective date of this 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. / /
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
--------------------------
<TABLE>
CALCULATION OF REGISTRATION FEE
=============================================================================================================================
<CAPTION>
Title of each class of Amount to be Proposed maximum Proposed maximum Amount of
securities to be registered registered offering price per unit aggregate offering price<F2> registration fee
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $0.01 par value<F1> 2,077,000 shares $16.79 $34,864,055 $10,284.90
=============================================================================================================================
<FN>
<F1> Includes one attached Preferred Share Purchase Right per share.
<F2> Estimated solely for the purposes of computing the registration fee
pursuant to the provisions of Rule 457(f), and based upon the
$30,055,403 aggregate book value of the 260,424 shares of common
stock, $0.50 par value, of Financial Services Corporation of the
Midwest ("FSCM") issued and outstanding as of May 31, 1998 and
the $4,808,652 aggregate book value of the 5,000 shares of Class A
Preferred Stock, no par value, of FSCM issued and outstanding as of May
31, 1998.
</TABLE>
---------------------------
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> 2
[LETTERHEAD OF FINANCIAL SERVICES CORPORATION OF THE MIDWEST]
----------------, 1998
Dear Fellow Stockholder:
The Board of Directors cordially invites you to attend a Special
Meeting of Stockholders of Financial Services Corporation of the Midwest
("FSCM") to be held at ----- -.m. Central Time, on -----------------,
- -------------------, 1998, at -------------------------------------- (the
"Special Meeting"). At the Special Meeting, you will be asked to consider
and vote upon a proposal to approve and adopt the Agreement and Plan of
Merger, dated April 13, 1998 (the "Merger Agreement"), and each of the
transactions contemplated thereby, pursuant to which FSCM will be merged (the
"Merger") with and into Ameribanc, Inc., a Missouri corporation and wholly
owned subsidiary of Mercantile Bancorporation Inc. ("MBI"). Upon
consummation of the Merger, each share of FSCM common stock will be converted
into the right to receive 6.8573 shares of MBI common stock, all as more
fully described in the accompanying Proxy Statement/Prospectus.
I have enclosed the following items relating to the Special Meeting
and the Merger:
1. Proxy Statement/Prospectus;
2. Proxy card; and
3. A pre-addressed return envelope to FSCM for the proxy card.
The Proxy Statement/Prospectus and related proxy materials set
forth, or incorporate by reference, financial data and other important
information relating to FSCM and MBI and describe the terms and conditions of
the Merger. The Board of Directors requests that you carefully review these
materials before completing the enclosed proxy card or attending the Special
Meeting.
THE BOARD OF DIRECTORS OF FSCM CAREFULLY CONSIDERED AND APPROVED THE
TERMS OF THE MERGER AGREEMENT AS BEING IN THE BEST INTEREST OF FSCM AND ITS
STOCKHOLDERS. THE BOARD OF DIRECTORS OF FSCM RECOMMENDS THAT STOCKHOLDERS
VOTE FOR THE PROPOSAL TO APPROVE AND ADOPT THE MERGER AGREEMENT.
---
The investment banking firm of Howe Barnes Investments, Inc. has
issued its written opinion, dated as of the date hereof, to your Board of
Directors regarding the fairness from a financial point of view of the
consideration to be received by FSCM stockholders pursuant to the Merger
Agreement. A copy of the opinion is attached as Annex A to the Proxy
-------
Statement/Prospectus.
APPROVAL AND ADOPTION OF THE MERGER AGREEMENT BY THE FSCM
STOCKHOLDERS IS A CONDITION TO THE CONSUMMATION OF THE MERGER. Accordingly,
it is important that your shares be represented at the Special Meeting,
whether or not you plan to attend the Special Meeting in person. Please
complete, date and sign the enclosed proxy card and return it to FSCM in the
enclosed pre-addressed envelope, which requires no postage if mailed within
the United States. If you later decide to attend the Special Meeting and
vote in person, or if you wish to revoke your proxy for any reason prior to
the vote at the Special Meeting, you may do so and your proxy will have no
further effect. You may revoke your proxy by delivering to the Secretary of
FSCM a written notice of revocation or another proxy relating to the same
shares bearing a later date than the proxy being revoked or by attending the
<PAGE> 3
Special Meeting and voting in person. Attendance at the Special Meeting will
not in itself constitute a revocation of an earlier dated proxy.
If you need assistance in completing your proxy card or if you have
any questions about the Proxy Statement/Prospectus, please feel free to
contact me at (309) 794-1120.
Sincerely,
Douglas M. Kratz
Chairman and Chief Executive Officer
<PAGE> 4
FINANCIAL SERVICES CORPORATION OF THE MIDWEST
224 18TH STREET, SUITE 202
ROCK ISLAND, IL 61201
NOTICE OF SPECIAL MEETING OF STOCKHOLDERS
TO BE HELD
----------------------, 1998
TO THE STOCKHOLDERS OF FINANCIAL SERVICES CORPORATION OF THE MIDWEST:
Notice is hereby given that a special meeting (the "Special
Meeting") of stockholders of FINANCIAL SERVICES CORPORATION OF THE MIDWEST
("FSCM"), a Delaware corporation, will be held at ----------------------- on
- ---------------, 1998, at ----- -.m. Central Time, for the following
purposes:
(1) To consider and vote upon a proposal to approve and adopt
the Agreement and Plan of Merger, dated as of April 13, 1998 (the "Merger
Agreement"), by and among Mercantile Bancorporation Inc. ("MBI"), Ameribanc,
Inc., a wholly owned subsidiary of MBI ("Ameribanc"), and FSCM, pursuant to
which FSCM will be merged (the "Merger") with and into Ameribanc, in a
transaction that will result in the business and operations of FSCM being
continued through Ameribanc, and whereby, upon consummation of the Merger,
each outstanding share of FSCM common stock will be converted into the right
to receive 6.8573 shares of MBI common stock, as set forth in detail in the
attached Proxy Statement/Prospectus.
(2) To transact such other business as may properly come before
the Special Meeting or any adjournments or postponements thereof.
The record date for determining the stockholders entitled to receive
notice of, and to vote at, the Special Meeting or any adjournments or
postponements thereof has been fixed as of the close of business on
- -----------------, 1998. On the record date, FSCM had 260,424 shares of
common stock issued, outstanding and entitled to vote. Such shares were held
by approximately 154 holders of record. Each share will be entitled to one
vote on each matter submitted to a vote at the Special Meeting.
PURSUANT TO SECTION 262 OF THE DELAWARE GENERAL CORPORATION LAW, EACH
HOLDER OF FSCM COMMON STOCK WILL HAVE THE RIGHT TO DISSENT FROM THE MERGER
AGREEMENT AND TO DEMAND A DETERMINATION OF THE FAIR VALUE OF SUCH
STOCKHOLDER'S SHARES IF THE MERGER AGREEMENT IS APPROVED AND ADOPTED AND THE
MERGER CONSUMMATED. A COPY OF SECTION 262 OF THE DELAWARE GENERAL
CORPORATION LAW IS ATTACHED AS ANNEX B TO THE PROXY STATEMENT/PROSPECTUS.
-------
THE AFFIRMATIVE VOTE OF A MAJORITY OF THE OUTSTANDING SHARES OF FSCM
COMMON STOCK IS REQUIRED FOR APPROVAL AND ADOPTION OF THE MERGER AGREEMENT.
YOUR VOTE IS IMPORTANT REGARDLESS OF THE NUMBER OF SHARES YOU OWN.
<PAGE> 5
WHETHER OR NOT YOU EXPECT TO ATTEND THE SPECIAL MEETING, PLEASE
COMPLETE, DATE AND SIGN THE ENCLOSED PROXY CARD AND RETURN IT IN THE
ACCOMPANYING ENVELOPE. THE PROXY MAY BE REVOKED AT ANY TIME PRIOR TO THE
VOTE AT THE SPECIAL MEETING BY FOLLOWING THE PROCEDURES SET FORTH IN THE
ACCOMPANYING PROXY STATEMENT/PROSPECTUS. FAILURE TO RETURN THE ENCLOSED
PROXY CARD OR TO VOTE AT THE MEETING WILL HAVE THE SAME EFFECT AS A VOTE
AGAINST THE MERGER.
PLEASE DO NOT SEND IN ANY STOCK CERTIFICATES AT THIS TIME. If the
Merger Agreement is approved and adopted, you will be sent instructions
regarding the mechanics of exchanging your existing FSCM common stock
certificates for new certificates representing shares of MBI Common Stock.
BY ORDER OF THE BOARD OF DIRECTORS
Rock Island, Illinois Patricia A. Zimmer
- --------------,1998 Secretary
<PAGE> 6
MERCANTILE BANCORPORATION INC.
PROSPECTUS
----------------
FINANCIAL SERVICES CORPORATION OF THE MIDWEST
PROXY STATEMENT
SPECIAL MEETING OF STOCKHOLDERS
TO BE HELD ON --------------, 1998
This Prospectus of Mercantile Bancorporation Inc., a Missouri
corporation ("MBI"), relates to up to 2,077,000 shares of common stock, $0.01
par value (the "Common Stock"), and attached Preferred Share Purchase Rights
(the "Rights"), of MBI (the Common Stock and Rights are collectively referred
to herein as "MBI Common Stock"), to be issued to the stockholders of
Financial Services Corporation of the Midwest, a Delaware corporation
("FSCM"), upon consummation of the proposed merger (the "Merger") of FSCM
with and into Ameribanc, Inc., a Missouri corporation and wholly owned
subsidiary of MBI ("Ameribanc"). Upon receipt of the requisite stockholder
and regulatory approvals, and the satisfaction or waiver of certain
conditions precedent, the Merger will be consummated pursuant to the terms of
the Agreement and Plan of Merger, dated as of April 13, 1998 (the "Merger
Agreement"), by and among MBI, Ameribanc and FSCM. This Prospectus also
serves as the Proxy Statement of FSCM for use in connection with the Special
Meeting of Stockholders of FSCM (the "Special Meeting"), which will be held
on ----------------, 1998, at the time and place and for the purposes stated
in the Notice of Special Meeting of Stockholders accompanying this Proxy
Statement/Prospectus.
Pursuant to the Merger Agreement, MBI will issue up to an aggregate
of 2,077,000 shares of MBI Common Stock. Upon consummation of the Merger,
the business and operations of FSCM will be continued through Ameribanc and
each share of common stock, $0.50 par value, of FSCM ("FSCM Common Stock")
will be converted into the right to receive 6.8573 shares of MBI Common Stock
(the "Exchange Ratio"). The fair market value of MBI Common Stock to be
received pursuant to the Merger may fluctuate and at the consummation of the
Merger may be more or less than the current fair market value of such shares.
See "TERMS OF THE PROPOSED MERGER - General Description of the Merger." No
fractional shares of MBI Common Stock will be issued in the Merger, but cash
will be paid in lieu of such fractional shares. See "TERMS OF THE PROPOSED
MERGER - Fractional Shares."
The Merger is intended to qualify as a reorganization under the
Internal Revenue Code of 1986, as amended (the "Code"). The Merger generally
is intended to achieve certain federal income tax deferral benefits for FSCM
stockholders with respect to shares of MBI Common Stock received in the
Merger. See "SUMMARY INFORMATION - Federal Income Tax Consequences in
General" and "CERTAIN FEDERAL INCOME TAX CONSEQUENCES OF THE MERGER."
MBI Common Stock is traded on the New York Stock Exchange (the
"NYSE") under the symbol "MTL." On -------, 1998, the closing sale price for
MBI Common Stock as reported on the NYSE Composite Tape was $---- per share.
FSCM Common Stock is not actively traded or regularly quoted.
This Proxy Statement/Prospectus, the Notice of Special Meeting and
the form of proxy were first mailed to the stockholders of FSCM on or about
- -------------------, 1998.
<PAGE> 7
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION (THE "COMMISSION") OR ANY STATE SECURITIES
COMMISSION NOR HAS THE COMMISSION OR ANY STATE COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROXY STATEMENT/PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
THE SHARES OF MBI COMMON STOCK OFFERED HEREBY ARE NOT SAVINGS
ACCOUNTS, DEPOSITS OR OTHER OBLIGATIONS OF ANY BANK OR NON-BANK SUBSIDIARY OF
MBI AND ARE NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE
BANK INSURANCE FUND, THE SAVINGS ASSOCIATION INSURANCE FUND OR ANY OTHER
FEDERAL OR STATE GOVERNMENTAL AGENCY.
All information contained in this Proxy Statement/Prospectus with
respect to MBI has been supplied by MBI and all information with respect to
FSCM has been supplied by FSCM.
The date of this Proxy Statement/Prospectus is -------------------, 1998.
-2-
<PAGE> 8
AVAILABLE INFORMATION
---------------------
MBI and FSCM are subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and, in
accordance therewith, file with the Commission reports, proxy statements
and/or other information. Such reports, proxy statements and/or other
information filed with the Commission by MBI and FSCM can be inspected and
copied at the public reference facilities maintained by the Commission at 450
Fifth Street, N.W., Washington, D.C. 20549 and at the Commission's regional
offices located at Suite 1300, Seven World Trade Center, New York, New York
10048 and Room 1400, Northwestern Atrium Center, 500 West Madison Street,
Chicago, Illinois 60661. The Commission maintains an Internet site on the
World Wide Web containing reports, proxy and information statements and other
information filed electronically by MBI and FSCM with the Commission. The
address of the World Wide Web site maintained by the Commission is
http://www.sec.gov. MBI Common Stock is listed on the NYSE, and such
reports, proxy statements and other information concerning MBI also are
available for inspection and copying at the offices of the NYSE, 20 Broad
Street, New York, New York 10005. FSCM Common Stock is not actively traded
or regularly quoted. Reports, proxy statements and other information
concerning FSCM are available from FSCM, without charge, upon written or oral
request to Patricia A. Zimmer, Secretary, Financial Services Corporation of
the Midwest, P.O. Box 4870, Rock Island, Illinois 61204-4870, telephone (309)
794-1122, extension 1301.
This Proxy Statement/Prospectus does not contain all of the
information set forth in the Registration Statement on Form S-4 and exhibits
thereto (the "Registration Statement") covering the securities offered hereby
which has been filed by MBI with the Commission. As permitted by the rules
and regulations of the Commission, this Proxy Statement/Prospectus omits
certain information contained or incorporated by reference in the
Registration Statement. Statements contained in this Proxy
Statement/Prospectus provide a summary of the contents of certain contracts
or other documents referenced herein but are not necessarily complete and in
each instance reference is made to the copy of each such contract or other
document filed as an exhibit to the Registration Statement. For such further
information, reference is made to the Registration Statement.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
-------------------------------------------------
THIS PROXY STATEMENT/PROSPECTUS INCORPORATES BY REFERENCE DOCUMENTS
RELATING TO MBI AND FSCM THAT ARE NOT PRESENTED HEREIN OR DELIVERED HEREWITH.
SUCH DOCUMENTS, EXCLUDING EXHIBITS UNLESS SPECIFICALLY INCORPORATED THEREIN,
ARE AVAILABLE, WITHOUT CHARGE TO ANY PERSON, INCLUDING BENEFICIAL OWNERS OF
FSCM COMMON STOCK TO WHOM THIS PROXY STATEMENT/PROSPECTUS IS DELIVERED, UPON
WRITTEN OR ORAL REQUEST, IN THE CASE OF DOCUMENTS RELATING TO MBI, TO JON W.
BILSTROM, GENERAL COUNSEL AND SECRETARY, MERCANTILE BANCORPORATION INC., P.O.
BOX 524, ST. LOUIS, MISSOURI 63166-0524, TELEPHONE (314) 418-2525, OR IN THE
CASE OF DOCUMENTS RELATING TO FSCM, TO PATRICIA A. ZIMMER, SECRETARY,
FINANCIAL SERVICES CORPORATION OF THE MIDWEST, P.O. BOX 4870, ROCK ISLAND,
ILLINOIS 61204-4870, TELEPHONE (309) 794-1122, EXTENSION 1301. IN ORDER TO
ENSURE TIMELY DELIVERY OF THE DOCUMENTS PRIOR TO THE SPECIAL MEETING, ANY
REQUEST SHOULD BE MADE BY ------------, 1998.
-3-
<PAGE> 9
The following documents filed with the Commission by MBI under the
Exchange Act are incorporated herein by reference:
(a) MBI's Annual Report on Form 10-K for the year ended
December 31, 1997.
(b) MBI's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1998.
(c) MBI's Current Reports on Form 8-K dated January 10, 1998
and January 30, 1998.
(d) The description of MBI's Common Stock set forth in Item 1
of MBI's Registration Statement on Form 8-A, dated
March 5, 1993, and any amendment or report filed for the
purpose of updating such description.
(e) The description of MBI's Preferred Share Purchase Rights
set forth in Item 1 of MBI's Registration Statement on
Form 8-A, dated May 27, 1998.
The following documents filed with the Commission by FSCM under the
Exchange Act are incorporated herein by reference:
(a) FSCM's Annual Report on Form 10-K for the year ended
March 31, 1998.
(b) FSCM's Current Report on Form 8-K dated April 13, 1998.
(c) The description of FSCM's Common Stock set forth in FSCM's
Registration Statement on Form S-2, dated October 1, 1996
(Registration No. 333-13227), as amended.
Such incorporation by reference shall not be deemed to incorporate
by reference the information referred to in Item 402(a)(8) of Regulation S-K.
All documents filed by MBI and FSCM pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act after the date hereof and until the
date of the Special Meeting shall be deemed to be incorporated by reference
herein and made a part hereof from the date any such document is filed. The
information relating to MBI and FSCM contained in this Proxy
Statement/Prospectus does not purport to be complete and should be read
together with the information in the documents incorporated by reference
herein. Any statement contained herein or in a document incorporated herein
by reference shall be deemed to be modified or superseded for purposes hereof
to the extent that a subsequent statement contained herein or in any other
subsequently filed document incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a
part hereof.
Any statements contained in this Proxy Statement/Prospectus
involving matters of opinion, whether or not expressly so stated, are
intended as such and not as representations of fact.
-4-
<PAGE> 10
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATION NOT CONTAINED IN THIS PROXY STATEMENT/ PROSPECTUS AND, IF
GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS
HAVING BEEN AUTHORIZED BY MBI OR FSCM. THIS PROXY STATEMENT/PROSPECTUS DOES
NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY
SECURITIES OTHER THAN THE SHARES OF MBI COMMON STOCK TO WHICH IT RELATES OR
AN OFFER TO ANY PERSON IN ANY JURISDICTION WHERE SUCH AN OFFER WOULD BE
UNLAWFUL. NEITHER THE DELIVERY OF THIS PROXY STATEMENT/PROSPECTUS NOR ANY
DISTRIBUTION OF SECURITIES PURSUANT HERETO SHALL IMPLY OR CREATE AN
IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF MBI OR FSCM OR
ANY OF THEIR SUBSIDIARIES OR IN THE INFORMATION SET FORTH HEREIN SUBSEQUENT
TO THE DATE HEREOF.
-5-
<PAGE> 11
<TABLE>
TABLE OF CONTENTS
-----------------
<CAPTION>
Page
----
<S> <C>
AVAILABLE INFORMATION 3
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE 3
SUMMARY INFORMATION 8
Business of MBI 8
Business of Ameribanc 9
Business of FSCM 9
The Proposed Merger 9
Effect on FSCM Stock Plan and Employee Benefit Plans 10
Other Agreements 11
Interests of Certain Persons in the Merger 11
Special Meeting of FSCM Stockholders 12
Reasons for the Merger 13
Opinion of Financial Advisor to FSCM 13
Fractional Shares 13
Waiver and Amendment 13
Federal Income Tax Consequences in General 14
Regulatory Approval 14
Accounting Treatment 14
Appraisal Rights 14
Markets and Market Prices 15
Comparative Unaudited Per Share Data 15
Summary Financial Data 18
INFORMATION REGARDING SPECIAL MEETING 21
General 21
Date, Time and Place 21
Record Date; Vote Required 21
Voting and Revocation of Proxies 21
Solicitation of Proxies 22
TERMS OF THE PROPOSED MERGER 23
General Description of the Merger 23
Effect on FSCM Stock Plan and Employee Benefit Plans 24
Other Agreements 25
Interests of Certain Persons in the Merger 25
Background of and Reasons for the Merger; Board Recommendations 26
Opinion of Financial Advisor to FSCM 30
Conditions of the Merger 34
Representations and Warranties 36
Termination, Waiver and Amendment of the Merger Agreement 37
Indemnification 37
Closing Date 38
Surrender of FSCM Stock Certificates and Receipt of MBI Common Stock 38
Fractional Shares 38
Regulatory Approval 39
Business Pending the Merger 39
Accounting Treatment 42
-6-
<PAGE> 12
CERTAIN FEDERAL INCOME TAX CONSEQUENCES OF THE MERGER 43
APPRAISAL RIGHTS OF STOCKHOLDERS OF FSCM 44
PRO FORMA FINANCIAL INFORMATION 47
Comparative Unaudited Per Share Data 47
Pro Forma Combined Consolidated Financial Statements (Unaudited) 49
INFORMATION REGARDING MBI STOCK 63
Description of MBI Common Stock and Attached Preferred Share Purchase Rights 63
Restrictions on Resale of MBI Stock by Affiliates 65
Comparison of the Rights of Shareholders and Stockholders of MBI and FSCM 65
SUPERVISION AND REGULATION 69
General 69
Certain Transactions with Affiliates 70
Payment of Dividends 70
Capital Adequacy 70
Support of Subsidiary Banks 71
FIRREA and FDICIA 71
Depositor Preference Statute 72
FDIC Insurance Assessments 72
Interstate Banking and Other Recent Legislation 72
RELATIONSHIP WITH INDEPENDENT ACCOUNTANTS 73
LEGAL MATTERS 73
EXPERTS 73
OTHER MATTERS 74
SHAREHOLDER PROPOSALS 74
ANNEXES
Annex A -- Opinion of Howe Barnes Investments, Inc. A-1
Annex B -- Appraisal Rights Provisions of the Delaware General Corporation Law B-1
</TABLE>
-7-
<PAGE> 13
SUMMARY INFORMATION
-------------------
The following is a summary of the important terms of the proposed
Merger and related information discussed elsewhere in this Proxy
Statement/Prospectus but does not purport to be complete and is qualified in
its entirety by reference to the more detailed information that appears
elsewhere in this Proxy Statement/Prospectus and the documents incorporated
by reference herein. Stockholders of FSCM are urged to read this Proxy
Statement/Prospectus in its entirety. All MBI per share data reflect
three-for-two stock splits distributed in the form of dividends on each of
April 11, 1994 and October 1, 1997.
BUSINESS OF MBI
MBI, a Missouri corporation, was organized in 1970 and is a
registered bank holding company under the federal Bank Holding Company Act of
1956, as amended (the "BHCA"). At March 31, 1998, MBI owned, directly or
indirectly, all of the capital stock of Mercantile Bank National Association
("Mercantile Bank") and 19 other commercial banks, all of which operate from
557 banking offices and 544 Fingertip Banking automated teller machines,
located throughout Missouri, Illinois, eastern Kansas, northern and central
Arkansas and Iowa. MBI's services concentrate in three major lines of
business: consumer; corporate; and trust and investment advisory services.
MBI also operates non-banking subsidiaries that provide related financial
services, including investment management, brokerage services and asset-based
lending. As of March 31, 1998, MBI had 133,115,227 shares of its Common
Stock outstanding and reported, on a consolidated basis, total assets of
$31.8 billion, total deposits of $22.5 billion, total loans of $19.6 billion
and shareholders' equity of $2.5 billion.
On February 2, 1998, MBI completed the acquisition of Horizon
Bancorp, Inc., an Arkansas corporation and a registered bank holding company
under the BHCA ("Horizon"), headquartered in Arkadelphia, Arkansas. This
acquisition was accounted for under the pooling-of-interests method of
accounting, but due to the immateriality of Horizon's financial information
to MBI's financial condition and results of operations, MBI's consolidated
financial statements have not been restated for any dates or any periods
prior to the acquisition date of Horizon. As of February 2, 1998, Horizon
reported, on a consolidated basis, total assets of $537 million, total
deposits of $454 million and shareholders' equity of $47 million.
On March 2, 1998, MBI completed the acquisition of HomeCorp, Inc., a
Delaware corporation and savings and loan holding company ("HomeCorp"),
headquartered in Rockford, Illinois. This acquisition was accounted for
under the pooling-of-interests method of accounting, but due to the
immateriality of HomeCorp's financial information to MBI's financial
condition and results of operation, MBI's consolidated financial statements
have not been restated for any date or any period prior to the acquisition
date of HomeCorp. As of March 2, 1998, HomeCorp reported, on a consolidated
basis, total assets of $335 million, total deposits of $309 million and
stockholders' equity of $21 million.
On January 10, 1998, MBI entered into an agreement to acquire CBT
Corporation, a Kentucky corporation and registered bank holding company under
the BHCA ("CBT"), headquartered in Paducah, Kentucky. The acquisition is
intended to be accounted for under the pooling-of-interests method of
accounting. As of March 31, 1998, CBT reported, on a consolidated basis,
total assets of $1.03 billion, total deposits of $715 million and
shareholders' equity of $122 million.
On February 2, 1998, MBI entered into an agreement to acquire
Firstbank of Illinois Co., a Delaware corporation and registered bank holding
company under the BHCA ("Firstbank"),
-8-
<PAGE> 14
headquartered in Springfield, Illinois. The acquisition is intended to be
accounted for under the pooling-of-interests method of accounting. As of March
31, 1998, Firstbank reported, on a consolidated basis, total assets of $2.28
billion, total deposits of $2.00 billion and stockholders' equity of $238
million.
On May 7, 1998, MBI entered into an agreement to acquire First
Financial Bancorporation, an Iowa corporation and registered bank holding
company under the BHCA ("First Financial"), headquartered in Iowa City, Iowa.
The acquisition is intended to be accounted for under the
pooling-of-interests method of accounting. As of March 31, 1998, First
Financial reported, on a consolidated basis, total assets of $568 million,
total deposits of $480 million and shareholders' equity of $60 million.
MBI's principal executive offices are located at One Mercantile
Center, St. Louis, Missouri 63101 and its telephone number is (314)
418-2525.
Additional information concerning MBI is included in the documents
incorporated by reference. See "INCORPORATION OF CERTAIN DOCUMENTS BY
REFERENCE."
BUSINESS OF AMERIBANC
Ameribanc, a Missouri corporation, is a wholly owned subsidiary of
MBI that was organized in 1991. Ameribanc is a registered bank holding
company under the BHCA. At March 31, 1998, Ameribanc owned all of the
capital stock of 20 banks which operate from 557 locations in Missouri,
Illinois, eastern Kansas, northern and central Arkansas and Iowa. Ameribanc,
which will continue to be a subsidiary of MBI following the Merger, will be
the surviving corporation upon consummation of the Merger.
BUSINESS OF FSCM
FSCM, a Delaware corporation, was formed in 1973 and is a one-bank
holding company registered under the BHCA. FSCM is the parent company of THE
Rock Island Bank, National Association ("TRIB"), a national banking
association. As of March 31, 1998, 340,662 shares of FSCM Common Stock were
issued and 260,424 shares of FSCM Common Stock were outstanding. In
addition, 5,000 shares of Class A preferred stock, no par value, of FSCM (the
"Class A Preferred Stock") were outstanding as of March 31, 1998 (such 5,000
shares are convertible into the right to receive an aggregate of approximately
41,666 shares of FSCM Common Stock). As of March 31, 1998, FSCM reported, on
a consolidated basis, total assets of $518 million, total deposits of $409
million and stockholders' equity of $34 million.
FSCM's principal executive offices are located at 224 18th Street,
Suite 202, Rock Island, IL 61201 and its telephone number is (309) 794-1120.
THE PROPOSED MERGER
Subject to the satisfaction of the terms and conditions set forth in
the Merger Agreement, FSCM will be merged with and into Ameribanc. Upon
consummation of the Merger, FSCM's corporate existence will terminate and
Ameribanc will continue as the surviving entity. Simultaneously with the
effectiveness of the Merger, each outstanding share of FSCM Common Stock will
be converted into the right to receive 6.8573 (the "Exchange Ratio") shares
of MBI Common Stock. Such consideration is subject to certain anti-dilution
protections, but is not adjustable based upon the operating results, financial
condition or other factors affecting either MBI or FSCM prior to the
consummation of the Merger. The fair market value
-9-
<PAGE> 15
of MBI Common Stock to be received pursuant to the Merger may fluctuate and at
the consummation of the Merger may be more or less than the current fair market
value of such shares.
Harris Trust and Savings Bank, the transfer agent for MBI Common
Stock, has been selected as the Exchange Agent (the "Exchange Agent") for
purposes of effecting the conversion of FSCM Common Stock into MBI Common
Stock upon consummation of the Merger. As soon as practicable after
consummation of the Merger, a letter of transmittal (including instructions
setting forth the procedures for exchanging certificates representing shares
of FSCM Common Stock for the MBI Common Stock issuable to each holder thereof
pursuant to the Merger Agreement) will be sent to each record holder of
certificates formerly representing shares of FSCM Common Stock as of the
Effective Time (as hereinafter defined). Upon surrender to the Exchange
Agent of his or her certificate(s) representing shares of FSCM Common Stock,
together with a duly completed and executed letter of transmittal, such
holder will receive certificates representing that whole number of shares of
MBI Common Stock to which such holder is entitled under the Merger Agreement.
See "TERMS OF THE PROPOSED MERGER - Surrender of FSCM Stock Certificates and
Receipt of MBI Common Stock."
The Merger Agreement provides that the consummation of the Merger is
subject to certain terms and conditions, including the approval and adoption
of the Merger Agreement by the requisite vote of the holders of FSCM Common
Stock, the receipt of the requisite regulatory approvals, a letter of KPMG
Peat Marwick LLP to the effect that the Merger will qualify for
pooling-of-interests accounting treatment, an opinion of counsel for MBI
regarding certain federal income tax aspects of the transaction and the
conversion of the Class A Preferred Stock to FSCM Common Stock prior to the
Effective Time. For a discussion of each of the conditions to the Merger, see
"TERMS OF THE PROPOSED MERGER - Conditions of the Merger." The Merger will be
consummated and become effective (the "Effective Time") upon the later of (i)
the issuance of a certificate of merger by the Office of the Secretary of
State of the State of Missouri and (ii) the filing of a certificate of merger
with the Office of the Secretary of State of the State of Delaware.
Unless the parties otherwise agree, the date of the closing of the
Merger (the "Closing Date") shall occur on such date as MBI shall notify FSCM
in writing (such notice to be at least five business days in advance of the
Effective Time) but (i) not earlier than the approval and adoption of the
Merger Agreement by the requisite vote of the holders of FSCM Common Stock
and the receipt of the requisite regulatory approvals (the "Approval Date")
and (ii) not later than the first business day of the first full calendar month
commencing at least five days after the Approval Date. The Merger Agreement
may be terminated at any time prior to the Closing Date by the mutual consent
of the parties or, unilaterally, by either party upon the occurrence of
certain events or if the Merger is not consummated by February 1, 1999. See
"TERMS OF THE PROPOSED MERGER - Conditions of the Merger" and "- Termination
of the Merger Agreement."
EFFECT ON FSCM STOCK PLAN AND EMPLOYEE BENEFIT PLANS
Upon consummation of the Merger, MBI will assume the Financial
Services Corporation of the Midwest 1996 Combined Incentive and Nonstatutory
Stock Option Plan (the "FSCM Stock Plan"), and all of the outstanding rights
(whether or not then exercisable) with respect to FSCM Common Stock pursuant
to the FSCM Stock Plan (collectively, the "FSCM Stock Options") will be
converted into rights to purchase MBI Common Stock. As a result of such
assumption: (i) each outstanding FSCM Stock Option will be exercisable solely
for shares of MBI Common Stock; (ii) the number of shares of MBI Common Stock
subject to the FSCM Stock Options will equal the number of shares of FSCM
Common Stock immediately prior to the Effective Time multiplied by the
Exchange Ratio; and (iii) the per share
-10-
<PAGE> 16
exercise price for each FSCM Stock Option will be adjusted by dividing such
exercise price by the Exchange Ratio.
In addition, upon consummation of the Merger, Merger Sub will honor
all severance and other compensation contracts and provisions for vested
benefits under the employee plans of FSCM and TRIB earned or accrued through
the Effective Time. MBI will take such steps as are necessary to integrate
the former employees of FSCM and its subsidiary into MBI's employee benefit
plans as soon as practicable after the Effective Time. See "TERMS OF THE
PROPOSED MERGER - Effect on FSCM Stock Plan and Employee Benefit Plans."
OTHER AGREEMENTS
In addition to and contemporaneously with the Merger Agreement, MBI
and each of the four directors of FSCM executed separate Voting Agreements
(the "Voting Agreements") pursuant to which each such director agreed that he
will vote all of the shares of FSCM Common Stock then owned, controlled or
subsequently acquired in favor of the approval and adoption of the Merger
Agreement at the Special Meeting. In addition, until the earliest to occur
of the Closing Date or the termination of the Merger Agreement, each director
further agreed he will not vote any such shares in favor of the approval of
any other competing acquisition proposal involving FSCM and a third party.
Each director also agreed that he will not transfer shares of FSCM Common
Stock unless, prior to such transfer, the transferee executes an agreement in
substantially the same form as the Voting Agreement and satisfactory to MBI.
As of the Record Date (as defined below), the directors of FSCM owned or
controlled, directly and indirectly, an aggregate of 136,927 shares of FSCM
Common Stock, or approximately 52.58% of the issued and outstanding shares.
INTERESTS OF CERTAIN PERSONS IN THE MERGER
EMPLOYMENT AND CONSULTING AGREEMENTS. Perry B. Hansen, President
of FSCM and Chief Executive Officer of TRIB, John T. Kustes, Treasurer of
FSCM and Senior Vice President, Senior Operations Officer and Assistant
Secretary of TRIB, Richard J. Carlson, President and Chief Operating Officer
of TRIB, and Donald P. Ackerman, Executive Vice President and Senior Lending
Officer of TRIB, have entered into separate employment agreements
(collectively, the "Employment Agreements") with MBI pursuant to which such
executive officers will continue to be employed by MBI or its affiliates
following the consummation of the Merger. Pursuant to the Employment
Agreements, in addition to certain other terms and conditions, commencing at
the Effective Time, MBI will engage such executive officers as directors
and/or senior officers of MBI's Quad Cities banking unit and such executive
officers will be entitled to receive (i) an annual salary in the amount of
$210,000, $104,000, $155,000 and $117,000, respectively, and (ii) cash
transition payments in the amount of $105,000, $21,000, $31,000 and $23,500,
respectively, if such executive officers are in the employ of MBI on the
twelve-month and/or twenty-four-month anniversaries of the Effective Time, as
the case may be. In addition, Perry B. Hansen will receive an incentive
bonus in the amount of $100,000. MBI has also entered into a consulting
agreement (the "Consulting Agreement") with Richey Corporation, which
agreement supersedes and replaces that certain Services Agreement dated
March 23, 1995 between FSCM and Richey Corporation. Douglas M. Kratz,
Chairman of the Board, Chief Executive Officer and Chief Financial Officer of
FSCM and Vice Chairman of the Board of TRIB, is the Secretary and Treasurer of
Richey Corporation. The Consulting Agreement provides, among other things,
that Richey Corporation will provide accounting, financial and/or
administrative advisory services to MBI commencing at the Effective Time and
continuing thereafter until December 31, 2000. Richey Corporation will
receive $21,000 per month under the Consulting Agreement. In addition, upon
satisfaction of certain conditions, Richey Corporation will receive an
incentive fee in the amount of $100,000 on January 5, 1999 and a
-11-
<PAGE> 17
transaction fee in the amount of $105,000 on each of the twelve and twenty-four
month anniversaries of the Effective Time. See "TERMS OF THE PROPOSED MERGER -
Interests of Certain Persons in the Merger - Employment and Consulting
Agreements."
RETENTION BONUSES. Richey Corporation, Perry B. Hansen, John T.
Kustes, Richard J. Carlson, Donald P. Ackerman and Jean M. Hanson are to
receive bonuses in the amount of $105,000, $105,000, $40,000, $40,000,
$40,000 and $20,000, respectively, payable contemporaneously with the
Effective Time, for the purpose of inducing such individuals to remain in the
employ of FSCM and/or TRIB through the Effective Time. See "TERMS OF THE
PROPOSED MERGER - Interests of Certain Persons in the Merger - Retention
Bonuses."
INDEMNIFICATION. MBI also has agreed that the Merger will not
diminish any indemnification obligations of FSCM or TRIB in favor of the
employees, agents, directors or officers of FSCM or TRIB existing as of the
Effective Time. In addition, to the extent that FSCM's existing directors'
and officers' liability insurance policy provides coverage for the acts or
omissions of the directors and officers of FSCM and TRIB prior to the
Effective Time, FSCM has agreed to give to such insurance carrier and to MBI
notice of any potential claims thereunder. On and after the Effective Time,
MBI's directors' and officers' liability insurance policy will provide
coverage for the prior acts of the directors and officers of FSCM and TRIB.
See "TERMS OF THE PROPOSED MERGER - Interests of Certain Persons in the
Merger - Indemnification."
SPECIAL MEETING OF FSCM STOCKHOLDERS
The Special Meeting will be held on -------------, 1998, at -------
- -.m. Central Time, at -----------------------------------------. Approval
and adoption of the Merger Agreement by the FSCM stockholders requires the
affirmative vote of the holders of a majority of the outstanding shares of
FSCM Common Stock. Only holders of record of FSCM Common Stock at the close
of business on --------------, 1998 (the "Record Date") will be entitled to
notice of, and to vote at, the Special Meeting. At such date, there were
260,424 shares of FSCM Common Stock outstanding. Each share of FSCM Common
Stock is entitled to one vote on each matter submitted to a vote at the
Special Meeting.
As of the Record Date, directors and executive officers of FSCM and
their affiliates owned or controlled the voting of, an aggregate of 138,586
shares of FSCM Common Stock, or approximately 53.22% of the shares entitled
to vote at the Special Meeting. Each of FSCM's directors and executive
officers has indicated his or her intention to vote his or her shares for the
approval and adoption of the Merger Agreement, which includes the four
directors of FSCM, pursuant to the terms of their respective Voting
Agreements, who have committed to vote their shares of FSCM Common Stock for
the approval and adoption of the Merger Agreement. As of the Record Date,
such persons who had executed Voting Agreements or otherwise indicated they
would vote for approval and adoption of the Merger Agreement owned
beneficially, directly and indirectly, an aggregate of 136,927 shares of FSCM
Common Stock, or approximately 52.58% of the issued and outstanding shares.
THE BOARD OF DIRECTORS OF FSCM CAREFULLY CONSIDERED AND APPROVED THE
TERMS OF THE MERGER AS BEING IN THE BEST INTEREST OF FSCM AND ITS
STOCKHOLDERS. THE BOARD OF DIRECTORS OF FSCM RECOMMENDS THAT STOCKHOLDERS
VOTE FOR THE PROPOSAL TO APPROVE AND ADOPT THE MERGER AGREEMENT.
---
-12-
<PAGE> 18
REASONS FOR THE MERGER
FSCM. FSCM's Board of Directors believes that the Merger is in the
best interests of FSCM and its stockholders. In reaching the decision to
recommend the approval and adoption of the Merger Agreement to the
stockholders, the Board of Directors, without assigning any relative or
specific weights, considered a number of factors. For a discussion of such
factors, see "TERMS OF THE PROPOSED MERGER - Background of and Reasons for
the Merger; Board Recommendations."
MBI. MBI's Board of Directors believes that the Merger will enable
MBI to (i) expand MBI's presence in northern Illinois through the acquisition
of an established banking organization and (ii) enhance MBI's ability to
compete in the increasingly competitive banking and financial services
industry. See "TERMS OF THE PROPOSED MERGER - Background of and Reasons for
the Merger; Board Recommendations."
OPINION OF FINANCIAL ADVISOR TO FSCM
As of the date of this Proxy Statement/Prospectus, Howe Barnes
Investments, Inc. ("Howe Barnes"), FSCM's financial advisor, rendered to the
Board of Directors of FSCM a written opinion to the effect that, as of the
date of such opinion, the consideration to be received by the holders of FSCM
Common Stock in the Merger is fair to them from a financial point of view.
Attached to this Proxy Statement/Prospectus as Annex A is a copy of the
-------
opinion of Howe Barnes, as of the date hereof, setting forth the procedures
followed, assumptions made, matters considered and qualifications and
limitations of the review undertaken by Howe Barnes in connection with
rendering its opinion. Holders of FSCM Common Stock are urged to read Howe
Barnes' opinion in its entirety. See "TERMS OF THE PROPOSED MERGER -
Background of and Reasons for the Merger; Board Recommendations" and
"-Opinion of Financial Advisor to FSCM."
FRACTIONAL SHARES
No fractional shares of MBI Common Stock will be issued to the
stockholders of FSCM in connection with the Merger. Each holder of FSCM
Common Stock who otherwise would have been entitled to receive a fraction of
a share of MBI Common Stock shall receive in lieu thereof cash, without
interest, in an amount equal to the holder's fractional share interest
multiplied by the closing stock price of MBI Common Stock on the NYSE
Composite Tape on the Closing Date as reported in The Wall Street Journal.
Cash received by FSCM stockholders in lieu of fractional shares may give rise
to taxable income. See "CERTAIN FEDERAL INCOME TAX CONSEQUENCES OF THE
MERGER."
WAIVER AND AMENDMENT
Any provision of the Merger Agreement, including, without
limitation, the conditions to the consummation of the Merger and the
restrictions described under the caption "TERMS OF THE PROPOSED MERGER -
Business Pending the Merger," may be (i) waived in writing at any time by the
party that is, or whose shareholders or stockholders are, entitled to the
benefits thereof or (ii) amended at any time by written agreement of the
parties approved by or on behalf of their respective Boards of Directors,
whether before or after the approval and adoption of the Merger Agreement by
the stockholders of FSCM; provided, however, that after approval and adoption
of the Merger Agreement by the stockholders of FSCM at the Special Meeting no
such modification may (i) alter or change the amount or kind of the
consideration to be received by the FSCM stockholders pursuant to the Merger
-13-
<PAGE> 19
Agreement or (ii) adversely affect the tax treatment to the FSCM stockholders
as a result of receiving shares of MBI Common Stock in the Merger.
FEDERAL INCOME TAX CONSEQUENCES IN GENERAL
Thompson Coburn, MBI's legal counsel, has delivered its opinion to
the effect that, assuming the Merger occurs in accordance with the Merger
Agreement and conditioned on the accuracy of certain representations made by
MBI and FSCM, the Merger will constitute a "reorganization" for federal
income tax purposes and that, accordingly, assuming the FSCM Common Stock is
a capital asset in the hands of the holder at the Effective Time, (i) no gain
or loss will be recognized by FSCM stockholders who exchange their shares of
FSCM Common Stock solely for shares of MBI Common Stock in the Merger, (ii) the
basis of the MBI Common Stock will equal the basis of the FSCM Common Stock
for which it is exchanged and (iii) the holding period of the MBI Common Stock
will include the holding period of the FSCM Common Stock for which it is
exchanged. However, cash received in lieu of fractional shares may give rise
to taxable income. EACH FSCM STOCKHOLDER IS URGED TO CONSULT HIS OR HER OWN
TAX ADVISOR TO DETERMINE THE SPECIFIC TAX CONSEQUENCES OF THE MERGER TO SUCH
STOCKHOLDER, INCLUDING THE APPLICABILITY OF VARIOUS STATE, LOCAL AND FOREIGN
TAX LAWS. See "CERTAIN FEDERAL INCOME TAX CONSEQUENCES OF THE MERGER."
REGULATORY APPROVAL
The Merger is subject to prior approval of the Board of Governors of
the Federal Reserve System (the "Federal Reserve Board"), the Illinois
Commissioner of Banks and Real Estate (the "Illinois Commissioner")
and any other bank regulatory authority that may be necessary or appropriate
(the Federal Reserve Board, the Illinois Commissioner and any other bank
regulatory authority that may be necessary or appropriate are collectively
referred to herein as the "Regulatory Authorities" and, individually, as a
"Regulatory Authority"). On June 5, MBI filed the required applications
regarding the Merger with the Federal Reserve Board. MBI will file the
required application regarding the Merger with the Illinois Commissioner. In
reviewing the applications and the proposed Merger, the Federal Reserve Board
will consider various factors, including possible anti-competitive effects of
the Merger, and examine the financial and managerial resources and future
prospects of the combined organization. There can be no assurance that the
requisite regulatory approvals will be granted or as to the timing of such
approvals. See "TERMS OF THE PROPOSED MERGER - Regulatory Approval" and
"SUPERVISION AND REGULATION."
ACCOUNTING TREATMENT
It is intended that the Merger will be accounted for under the
pooling-of-interests method of accounting. See "TERMS OF THE PROPOSED MERGER
- - Accounting Treatment."
APPRAISAL RIGHTS
Pursuant to the Delaware General Corporation Law (the "DGCL"), each
holder of FSCM Common Stock may, in lieu of receiving the Merger
consideration, seek appraisal of the fair value of such holder's shares, and
if the Merger is consummated, receive payment of such fair value in cash by
following certain procedures set forth in Section 262 of the DGCL, the text
of which is attached hereto as Annex B. Failure to follow such procedures
-------
may result in a loss of such stockholder's appraisal rights. Any FSCM
stockholder returning a blank executed proxy card will be deemed to have
approved and adopted the Merger Agreement, thereby waiving any such appraisal
rights. See "APPRAISAL RIGHTS OF STOCKHOLDERS OF FSCM."
-14-
<PAGE> 20
MARKETS AND MARKET PRICES
MBI Common Stock is traded on the NYSE under the symbol "MTL." The
closing per share sale price reported for MBI Common Stock on April 9, 1998,
the last trading date preceding the public announcement of the Merger, was
$55.375. FSCM Common Stock is not actively traded or regularly quoted. As
of December 31, 1997, an independent appraiser determined that the value of a
minority interest in FSCM Common Stock was $120 per share. In March 1998, 16
shares of FSCM Common Stock were purchased by TRIB's Section 401(k) defined
contribution retirement plan ("401(k) Plan") at a price of $120 per share.
The cash exchange value offered by FSCM in its May 1997 Common Stock tender
offer was $90 per share. In January and November 1997, sales of 100 shares
of FSCM Common Stock each were made from treasury stock at $100 per share to
newly-appointed directors of TRIB and FSCM to satisfy regulatory stock
ownership requirements. In March 1997, 1,000 shares of FSCM Common Stock
were sold by FSCM from treasury stock to TRIB's 401(k) Plan at a price of $85
per share. The price per share of the Common Stock sold to the 401(k) Plan
was based upon an independent stock appraisal, as of December 1996, on
transactions involving minority interests in FSCM Common Stock on behalf of
the 401(k) Plan participants.
The following table sets forth for the periods indicated the high
and low prices per share of MBI Common Stock as reported on the NYSE and of
FSCM Common Stock as known to management of FSCM, along with the quarterly
cash dividends per share declared. The per share prices do not include
adjustments for markups, markdowns or commissions.
<TABLE>
<CAPTION>
MBI FSCM
------------------------------------- -------------------------------------
SALES PRICE<F1> CASH SALES PRICE CASH
------------------ DIVIDEND ------------------ DIVIDEND
HIGH LOW DECLARED HIGH LOW DECLARED
---- --- -------- ---- --- --------
<S> <C> <C> <C> <C> <C> <C>
1996
- ----
First Quarter $31.0006 $27.6875 $.273 $ 67.50 $ 67.50 $.50
Second Quarter 31.9375 29.0000 .273 <F2> <F2> .50
Third Quarter 35.2500 28.9375 .273 <F2> <F2> .50
Fourth Quarter 36.0000 32.6875 .273 <F2> <F2> .50
1997
- ----
First Quarter $39.6875 $33.3125 $.287 $100.00 $ 85.00 $.50
Second Quarter 41.6875 35.0000 .287 <F2> <F2> .50
Third Quarter 53.5000 40.5000 .287 90.00 90.00 .625
Fourth Quarter 61.6250 45.5000 .287 100.00 100.00 .625
1998
- ----
First Quarter $61.2500 $49.5625 $.31 $120.00 $120.00 $.625
Second Quarter --- --- --- <F2> <F2> .625
(through --------, 1998)
<FN>
- --------------------
<F1> For recent sale prices of MBI Common Stock, see the cover of this
Proxy Statement/Prospectus.
<F2> No trades known to management of FSCM.
</TABLE>
COMPARATIVE UNAUDITED PER SHARE DATA
The following table sets forth for the periods indicated selected
historical per share data of MBI and FSCM and the corresponding pro forma and
pro forma equivalent per share amounts giving effect to the proposed Merger
and the acquisition by MBI of Roosevelt Financial Group, Inc. ("Roosevelt"),
which was consummated on July 1, 1997 and accounted for under the purchase
method of accounting. The data presented is based upon the consolidated
financial statements and related notes of
-15-
<PAGE> 21
each of MBI and FSCM included in documents incorporated herein by reference, and
the pro forma combined consolidated balance sheet and income statements,
including the notes thereto, appearing elsewhere herein. This information
should be read in conjunction with such historical and pro forma financial
statements and related notes thereto. The assumptions used in the preparation
of this table appear in the notes to the pro forma financial information
appearing elsewhere in this Proxy Statement/Prospectus. See "PRO FORMA
FINANCIAL INFORMATION - Notes to Pro Forma Combined Consolidated Financial
Statements." This data is not necessarily indicative of the results of the
future operations of the combined organization or the actual results that would
have occurred if the proposed Merger and the acquisition of Roosevelt had been
consummated prior to the periods indicated.
-16-
<PAGE> 22
<TABLE>
<CAPTION>
MBI/ MBI/ MBI/
FSCM FSCM MBI/ALL ENTITIES ALL ENTITIES
MBI FSCM PRO FORMA PRO FORMA PRO FORMA PRO FORMA
REPORTED REPORTED<F1> COMBINED<F2> EQUIVALENT<F3> COMBINED<F4> EQUIVALENT<F3>
-------- ------------ ------------ -------------- ------------ --------------
<S> <C> <C> <C> <C> <C> <C>
Book Value per Share:
March 31, 1998<F5> $ 18.65 $112.81 $ 18.52 $127.00 $ 18.58 $127.41
December 31, 1997 18.47 112.81 18.37 125.97 17.58 120.55
Cash Dividends Declared per Share:
Three Months ended March 31, 1998 $ .310 $ .625 $ .310 $ 2.13 $ .31 $ 2.13
Year ended December 31, 1997 1.148 2.375 1.148 7.87 1.148 7.87
Year ended December 31, 1996 1.092 2.000 1.092 7.49 1.092 7.49
Year ended December 31, 1995 .880 1.760 .880 6.03 .88 6.03
Basic Earnings per Share:
Three Months ended March 31, 1998 $ .78 $ 5.48 $ .78 $ 5.35 $ .76 $ 5.21
Year ended December 31, 1997 1.68 24.92 1.70 11.66 1.49 10.22
Year ended December 31, 1996 2.11 20.73 2.12 14.54 2.13 14.61
Year ended December 31, 1995 2.41 16.87 2.42 16.59 2.37 16.25
Diluted Earnings per Share:
Three Months Ended March 31, 1998 $ .77 $ 5.11 $ .77 $ 5.28 $ .75 $ 5.14
Year ended December 31, 1997 1.65 18.23 1.66 11.38 1.45 9.94
Year ended December 31, 1996 2.08 13.18 2.07 14.19 2.09 14.33
Year ended December 31, 1995 2.37 10.80 2.35 16.11 2.31 15.84
Market Price per Share:
At April 9, 1998<F6> $55.375 $120.00 $55.375 $379.72 $55.375 $379.72
At June 9, 1998<F6> 51.500 120.00 51.500 353.15 51.500 353.15
<FN>
- --------------------
<F1> FSCM has a March 31 fiscal year-end. For purposes of this table, FSCM
information at or for the fiscal year ended March 31 is reported as
year ended December 31 data. FSCM information at or for the three
months ended March 31, 1998 is reported as three months ended
March 31, 1998 data.
<F2> Includes the effect of pro forma adjustments for FSCM, as appropriate.
See "PRO FORMA FINANCIAL INFORMATION - Notes to Pro Forma Combined
Consolidated Financial Statements."
<F3> Based on the pro forma combined per share amounts multiplied by 6.8573,
the Exchange Ratio applicable to one share of FSCM Common Stock in the
Merger. Further explanation of the assumptions used in the preparation
of the pro forma combined consolidated financial statements is included
in the notes to pro forma combined consolidated financial statements.
See "PRO FORMA FINANCIAL INFORMATION - Notes to Pro Forma Combined
Consolidated Financial Statements."
<F4> Includes the effect of pro forma adjustments for FSCM, CBT, Firstbank,
First Financial and Roosevelt, as appropriate. Due to the
immateriality of the financial condition and results of operations of
Horizon and HomeCorp to that of MBI, this table does not include the
effect of pro forma adjustments for Horizon and HomeCorp. See "PRO
FORMA FINANCIAL INFORMATION - Notes to Pro Forma Combined Consolidated
Financial Statements."
<F5> Based upon the following number of shares outstanding as of
March 31, 1998:
<S> <C>
Shares of MBI Common Stock as reported 133,115,227
Number of Shares of MBI Common Stock, net of treasury
shares, to be issued in the mergers of:
FSCM 1,877,324
CBT 4,961,910
First Financial 2,875,360
Firstbank 12,511,135
-----------
MBI/All Entities Pro Forma Combined 155,340,956
===========
<FN>
<F6> The market value of MBI Common Stock disclosed as of April 9, 1998, the
last trading day preceding the public announcement of the Merger, and
as of June 9, 1998, the last practicable date prior to the filing of
the Registration Statement, is based on the last sale price as reported
on the NYSE Composite Tape. The market value of FSCM Common Stock
disclosed as of April 9, 1998, the last trading day preceding the
public announcement of the Merger, and as of June 9, 1998, the last
practicable date prior to the filing of the Registration Statement, is
based on independent stock appraisals for transactions involving
minority interests in FSCM Common Stock.
</TABLE>
-17-
<PAGE> 23
SUMMARY FINANCIAL DATA
The following table sets forth for the periods indicated certain
summary historical consolidated financial information for MBI and FSCM. The
balance sheet data and income statement data of MBI included in the summary
financial data as of and for the five years ended December 31, 1997, are
taken from the audited consolidated financial statements of MBI. The balance
sheet data and income statement data of MBI included in the summary financial
data as of and for the three months ended March 31, 1998 and 1997 are taken
from the unaudited consolidated financial statements of MBI. The balance
sheet data and income statement data of FSCM included in the summary
financial data as of and for the five years ended March 31, 1998 are taken
from the audited consolidated financial statements of FSCM. These data
include all adjustments which are, in the opinion of the respective
managements of MBI and FSCM, necessary to present a fair statement of these
periods and are of a normal recurring nature. Results for MBI for the three
months ended March 31, 1998 are not necessarily indicative of results for the
entire year. The following information should be read in conjunction with
the audited consolidated financial statements of each of MBI and FSCM, and
the related notes thereto, included in documents incorporated herein by
reference, and in conjunction with the unaudited pro forma combined
consolidated financial information, including the notes thereto, appearing
elsewhere in this Proxy Statement/Prospectus. See "INCORPORATION OF CERTAIN
INFORMATION BY REFERENCE" and "PRO FORMA FINANCIAL INFORMATION."
-18-
<PAGE> 24
<TABLE>
MERCANTILE BANCORPORATION INC.
SUMMARY FINANCIAL DATA
<CAPTION>
ALL ENTITIES
PRO FORMA
COMBINED
CONSOLIDATED AS OF OR FOR THE
AS OF OR FOR THREE MONTHS
THE THREE ENDED AS OF OR FOR THE
MONTHS ENDED MARCH 31, YEAR ENDED DECEMBER 31,
MARCH 31, ------------------ ----------------------------------------------------------
1998<F1> 1998 1997 1997 1996 1995 1994 1993
-------- -------- -------- ---------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
PER SHARE DATA
Basic earnings $ .76 $ .78 $ .65 $ 1.68 $ 2.11 $ 2.41 $ 2.06 $ 1.81
Diluted earnings .75 .77 .64 1.65 2.08 2.37 2.02 1.77
Dividends declared .31 .31 .287 1.148 1.092 .88 .748 .66
Book value at period end 18.54 18.65 16.50 18.47 16.74 16.29 14.48 13.41
EARNINGS (THOUSANDS)
Interest income $611,817 $530,331 $398,462 $1,878,194 $1,552,863 $1,516,156 $1,311,928 $1,269,680
Interest expense 330,187 290,026 186,501 957,690 724,910 715,466 521,542 508,469
-------- -------- -------- ---------- ---------- ---------- ---------- ----------
Net interest income 281,630 240,305 211,961 920,504 827,953 800,690 790,386 761,211
Provision for possible
loan losses 9,387 6,606 18,443 79,309 73,015 41,533 48,791 70,584
Other income 140,747 127,193 88,100 378,684 337,480 311,649 272,368 290,380
Other expense 228,455 196,864 165,595 894,780 718,668 640,519 645,011 666,067
Income taxes 67,321 60,136 41,028 120,506 128,535 149,898 135,896 114,768
-------- -------- -------- ---------- ---------- ---------- ---------- ----------
Net income $117,214 $103,892 $ 74,995 $ 204,593 $ 245,215 $ 280,389 $ 233,056 $ 200,172
======== ======== ======== ========== ========== ========== ========== ==========
ENDING BALANCE SHEET (MILLIONS)
Total assets $ 35,830 $ 31,802 $ 22,078 $ 29,955 $ 22,030 $ 20,883 $ 19,397 $ 18,878
Earning assets 32,286 28,530 20,373 27,278 20,061 18,997 17,904 17,390
Investment securities 9,444 8,378 4,847 7,546 4,746 4,964 4,895 5,234
Loans and leases, net of
unearned income 22,224 19,625 15,213 19,200 14,953 13,703 12,764 11,637
Deposits 25,830 22,528 17,354 22,080 17,336 16,172 15,137 15,435
Long-term debt<F2> 2,410 2,343 452 1,469 305 344 351 340
Shareholders' equity 2,885 2,483 1,882 2,410 1,946 1,915 1,643 1,510
Reserve for possible loan losses 316 264 231 255 230 232 245 233
SELECTED RATIOS
Return on average assets 1.35% 1.35% 1.38% .79% 1.16% 1.39% 1.22% 1.08%
Return on average equity 16.29 16.57 15.63 9.55 12.95 15.64 14.66 14.06
Net interest rate margin<F3> 3.62 3.54 4.36 3.93 4.34 4.38 4.61 4.58
Equity to assets 8.05 7.81 8.52 8.05 8.83 9.17 8.47 8.00
Reserve for possible loan
losses to:
Outstanding loans 1.42 1.34 1.52 1.33 1.54 1.70 1.92 2.00
Non-performing loans 232.41 231.39 273.18 249.51 318.99 241.79 552.34 289.13
Dividend payout ratio<F4> 41.33 40.26 44.84 69.58 52.50 37.13 37.03 37.29
<FN>
- --------------------
<F1> Includes the effect of pro forma adjustments for the pending
acquisitions of FSCM, CBT, Firstbank and First Financial, and the
completed acquisition of Roosevelt, as appropriate. Due to the
immateriality of the financial condition and results of operations of
Horizon and HomeCorp to that of MBI, this table does not include the
effect of pro forma adjustments for Horizon and HomeCorp. See "PRO
FORMA FINANCIAL INFORMATION - Notes to Pro Forma Combined Consolidated
Financial Statements."
<F2> Includes company-obligated mandatorily redeemable preferred securities
of Mercantile Capital Trust I.
<F3> Taxable-equivalent basis. Includes tax-equivalent adjustments for MBI
of $3,401,000, $3,857,000, $15,086,000, $16,353,000, $17,758,000,
$17,962,000 and $18,598,000 for March 31, 1998 and 1997, and
December 31, 1997, 1996, 1995, 1994 and 1993, respectively, and for all
entities pro forma combined consolidated for March 31, 1998 of
$4,644,000. These adjustments are based upon a federal tax rate of 35%
for all periods.
<F4> Based upon diluted earnings per share.
</TABLE>
-19-
<PAGE> 25
<TABLE>
FINANCIAL SERVICES CORPORATION OF THE MIDWEST
SUMMARY FINANCIAL DATA
<CAPTION>
AS OF OR FOR THE
YEAR ENDED MARCH 31,
--------------------------------------------------------------------
1998 1997 1996 1995 1994
-------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C>
PER SHARE DATA
Basic earnings $ 24.92 $ 20.73 $ 16.87 $ 14.21 $ 10.07
Diluted earnings 18.23 13.18 10.80 9.10 6.73
Dividends declared 2.38 2.00 1.76 1.52 1.52
Book value at period end 112.82 118.30 100.60 88.18 76.21
EARNINGS (THOUSANDS)
Interest income $ 39,125 $ 34,493 $ 30,271 $ 24,571 $ 22,024
Interest expense 20,759 17,638 15,833 10,707 9,642
-------- -------- -------- -------- --------
Net interest income 18,366 16,855 14,438 13,864 12,382
Provision for credit losses 3,502 2,630 1,905 2,510 1,970
Other income 4,802 3,673 3,315 3,149 3,515
Other expense 11,396 11,176 10,527 9,919 10,327
Income taxes 2,710 2,465 1,768 1,516 1,267
-------- -------- -------- -------- --------
Net income $ 5,560 $ 4,257 $ 3,553 $ 3,068 $ 2,333
======== ======== ======== ======== ========
ENDING BALANCE SHEET (THOUSANDS)
Total assets $518,046 $445,669 $386,967 $337,454 $304,075
Earning assets 476,863 414,239 358,686 313,164 282,635
Investments 135,672 122,280 90,423 71,822 79,939
Loans and leases 326,490 296,470 255,965 212,076 180,845
Deposits 408,995 361,891 301,818 271,611 250,774
Long-term debt 25,000 10,000 4,500 5,000 5,000
Stockholders' equity 34,381 27,544 24,287 21,961 19,751
Allowance for credit losses 6,958 5,442 4,463 3,832 3,744
SELECTED RATIOS
Return on average assets 1.17% 1.05% 0.99% 0.99% 0.83%
Return on average equity 20.17 19.03 17.49 17.24 13.79
Net interest rate margin 4.13 4.45 4.31 4.77 4.69
Equity to assets 6.64 6.18 6.28 6.51 6.50
Allowance for credit losses to:
Outstanding loans 2.13 1.84 1.74 1.81 2.07
Non-performing loans 212.07 207.00 349.22 145.04 221.02
Dividend payout ratio 13.06 15.17 16.30 16.70 22.59
</TABLE>
-20-
<PAGE> 26
INFORMATION REGARDING SPECIAL MEETING
-------------------------------------
GENERAL
This Proxy Statement/Prospectus is being furnished to holders of
FSCM Common Stock in connection with the solicitation of proxies by the Board
of Directors of FSCM for use at the Special Meeting and any adjournments or
postponements thereof at which the stockholders of FSCM will consider and
vote upon a proposal to approve and adopt the Merger Agreement and consider
and vote upon any other business that may properly be brought before the
Special Meeting or any adjournments or postponements thereof. Each copy of
this Proxy Statement/Prospectus is accompanied by the Notice of Special
Meeting of Stockholders of FSCM, a proxy card and a return envelope to FSCM
for the proxy card.
This Proxy Statement/Prospectus also is furnished by MBI to each
holder of FSCM Common Stock as a prospectus in connection with the issuance
by MBI of shares of MBI Common Stock upon the consummation of the Merger.
This Proxy Statement/Prospectus, the Notice of Special Meeting and proxy card
are being first mailed to stockholders of FSCM on -----------------, 1998.
DATE, TIME AND PLACE
The Special Meeting will be held at ----------------------------------,
on ---------------, 1998, at ------ -.m. Central Time.
RECORD DATE; VOTE REQUIRED
On the Record Date, there were 260,424 shares of FSCM Common Stock
outstanding and entitled to vote at the Special Meeting. Each such share is
entitled to one vote on each matter properly brought before the Special
Meeting. The affirmative vote of the holders of a majority of the
outstanding shares of FSCM Common Stock is required to approve and adopt the
Merger Agreement.
As of the Record Date, directors and executive officers of FSCM and
their affiliates owned, or controlled the voting of, an aggregate of 138,586
shares of FSCM Common Stock, or approximately 53.22% of the outstanding
shares of FSCM Common Stock entitled to vote at the Special Meeting. Each of
the directors and executive officers of FSCM has indicated his or her
intention to vote his or her shares for the approval and adoption of the
Merger Agreement at the Special Meeting, which includes the four directors of
FSCM, pursuant to the terms of their respective Voting Agreements, who have
committed to vote their shares of FSCM Common Stock for approval and adoption
of the Merger Agreement. See "TERMS OF THE PROPOSED MERGER - Other
Agreements."
VOTING AND REVOCATION OF PROXIES
Shares of FSCM Common Stock that are represented by a properly
executed proxy received prior to the vote at the Special Meeting will be
voted at such Special Meeting in the manner directed on the proxy card,
unless such proxy is revoked in the manner set forth herein in advance of
such vote. Failure to return a properly executed proxy card or to vote in
person at the Special Meeting will have the practical effect of a vote
against the approval and adoption of the Merger Agreement.
-21-
<PAGE> 27
Shares subject to abstentions will be treated as shares that are
present and voting at the Special Meeting for purposes of determining the
presence of a quorum. Because the affirmative vote of a majority of the
outstanding shares of FSCM Common Stock is required for approval and adoption
of the Merger Agreement, abstentions will have the effect of votes against
approval and adoption of the Merger Agreement. Broker "non-votes" (i.e.,
proxies from brokers or nominees indicating that such persons have not
received instructions from the beneficial owners or other persons entitled to
vote shares with respect to which the brokers or nominees do not have
discretionary power to vote without such instructions) will not be considered
as present for the purposes of determining the presence of a quorum. Because
the affirmative vote of a majority of the outstanding shares of FSCM Common
Stock is required for approval and adoption of the Merger Agreement, broker
non-votes will have the effect of a vote against the approval and adoption of
the Merger Agreement.
ANY FSCM STOCKHOLDER RETURNING AN EXECUTED PROXY CARD THAT DOES NOT
PROVIDE INSTRUCTIONS TO ABSTAIN FROM, OR TO VOTE AGAINST THE APPROVAL AND
ADOPTION OF, THE MERGER AGREEMENT WILL BE DEEMED TO HAVE APPROVED AND ADOPTED
THE MERGER AGREEMENT.
Any stockholder of FSCM giving a proxy may revoke it at any time
prior to the vote at the Special Meeting. Stockholders of FSCM wishing to
revoke a proxy prior to the vote may do so by delivering to Patricia A.
Zimmer, the Secretary of FSCM, at P.O. Box 4870, Rock Island, Illinois
61204-4870, at or before the Special Meeting, a written notice of revocation
bearing a later date than the proxy or a later dated proxy relating to the
same shares, or by attending the Special Meeting and voting such shares in
person. Attendance at the Special Meeting will not in itself constitute the
revocation of a proxy.
The Board of Directors of FSCM currently is not aware of any
business to be brought before the Special Meeting other than that described
herein. If, however, other matters are properly brought before such Special
Meeting, or any adjournments or postponements thereof, the persons appointed
as proxies will have discretionary authority to vote the shares represented
by duly executed proxies in accordance with their discretion and judgment as
to the best interest of FSCM.
SOLICITATION OF PROXIES
FSCM will bear its own costs of soliciting proxies, except that MBI
will pay printing and mailing expenses and registration fees incurred in
connection with preparing this Proxy Statement/Prospectus. Proxies will
initially be solicited by mail, but directors, officers and selected other
employees of FSCM also may solicit proxies in person or by telephone.
Directors, executive officers and any other employees of FSCM who solicit
proxies will not be specially compensated for such services. Brokerage
houses, nominees, fiduciaries and other custodians will be requested to
forward proxy materials to beneficial owners and will be reimbursed for their
reasonable expenses incurred in sending proxy materials to beneficial owners.
HOLDERS OF FSCM COMMON STOCK ARE REQUESTED TO COMPLETE, DATE AND
SIGN THE ACCOMPANYING PROXY CARD AND RETURN IT PROMPTLY IN THE ENCLOSED
POSTAGE-PREPAID ENVELOPE.
-22-
<PAGE> 28
TERMS OF THE PROPOSED MERGER
----------------------------
The following is a summary of the material terms and conditions of
the Merger Agreement, which document is incorporated by reference herein.
This summary is qualified in its entirety by the full text of the Merger
Agreement. MBI, upon written or oral request, will furnish a copy of the
Merger Agreement, without charge, to any person who receives a copy of this
Proxy Statement/Prospectus. Such requests should be directed to Jon W.
Bilstrom, General Counsel and Secretary, Mercantile Bancorporation Inc., P.O.
Box 524, St. Louis, Missouri 63166-0524, telephone (314) 418-2525.
GENERAL DESCRIPTION OF THE MERGER
Pursuant to the Merger Agreement, subject to satisfaction or waiver
of certain conditions precedent, including receipt of all applicable
regulatory approvals, FSCM will be merged on the Closing Date with and into
Ameribanc. Upon consummation of the Merger, FSCM's corporate existence will
terminate and Ameribanc will continue as the surviving entity. At the
Effective Time, each share of FSCM Common Stock will be converted into the
right to receive 6.8573 shares of MBI Common Stock. Such consideration is
subject to certain anti-dilution protections but is not adjustable based upon
the operating results, financial condition or other factors affecting either
MBI or FSCM prior to the consummation of the Merger. The fair market value
of MBI Common Stock received pursuant to the Merger may fluctuate and at the
consummation of the Merger may be more or less than the current fair market
value of such shares.
The amount and nature of the consideration was established through
arm's-length negotiations between MBI and FSCM and their respective advisors,
and reflects the balancing of a number of countervailing factors. The total
amount of the consideration reflects a price both parties concluded was
appropriate. See "-Background of and Reasons for the Merger; Board
Recommendations." The fact that the consideration is payable in shares of
MBI Common Stock reflects the desire of the parties to the Merger to have the
favorable tax attributes of a "reorganization" for federal income tax
purposes. See "CERTAIN FEDERAL INCOME TAX CONSEQUENCES OF THE MERGER."
NO ASSURANCE CAN BE GIVEN THAT THE CURRENT FAIR MARKET VALUE OF MBI
COMMON STOCK WILL BE EQUIVALENT TO THE FAIR MARKET VALUE OF MBI COMMON STOCK
ON THE DATE SUCH STOCK IS RECEIVED BY A FSCM STOCKHOLDER OR AT ANY OTHER
TIME. THE FAIR MARKET VALUE OF MBI COMMON STOCK RECEIVED BY A FSCM
STOCKHOLDER MAY BE GREATER OR LESS THAN THE CURRENT FAIR MARKET VALUE OF MBI
COMMON STOCK DUE TO NUMEROUS MARKET FACTORS.
Following the Closing Date, each stockholder of FSCM (other than any
stockholders who have perfected their appraisal rights pursuant to the DGCL)
will be required to submit to the Exchange Agent a properly executed letter
of transmittal and surrender to the Exchange Agent the stock certificate(s)
formerly representing the shares of FSCM Common Stock in order to receive a
new stock certificate(s) evidencing the shares of MBI Common Stock to which
such stockholder is entitled. As soon as practicable following the Effective
Time, the Exchange Agent will mail to each FSCM stockholder (other than any
stockholders who have perfected their appraisal rights pursuant to the DGCL)
a notice of consummation of the Merger and a form of letter of transmittal,
together with
-23-
<PAGE> 29
instructions and a return envelope to facilitate the exchange of such holder's
certificate(s) formerly representing FSCM Common Stock for certificate(s)
evidencing MBI Common Stock. No dividends or other distributions will be paid
to a former FSCM stockholder with respect to shares of MBI Common Stock until
such stockholder's letter of transmittal and stock certificate(s) formerly
representing FSCM Common Stock, or documentation reasonably acceptable to the
Exchange Agent in lieu of lost or destroyed certificate(s), is delivered to the
Exchange Agent. See "TERMS OF THE PROPOSED MERGER - Surrender of FSCM Stock
Certificates and Receipt of MBI Common Stock." No fractional shares of MBI
Common Stock will be issued in the Merger, but cash will be paid in lieu of such
fractional shares, such cash being calculated by multiplying the holder's
fractional share interest by the closing stock price of MBI Common Stock on the
NYSE Composite Tape on the Closing Date of the Merger as reported in The Wall
Street Journal. See "- Fractional Shares." The shares of MBI Common Stock to
be issued pursuant to the Merger will be freely transferable except by certain
stockholders of FSCM who are deemed to be "affiliates" of FSCM. The shares of
MBI Common Stock issued to such affiliates will be restricted in their
transferability in accordance with the rules and regulations promulgated by the
Commission. See "INFORMATION REGARDING MBI STOCK - Restrictions on Resale of MBI
Stock by Affiliates."
EFFECT ON FSCM STOCK PLAN AND EMPLOYEE BENEFIT PLANS
MBI has agreed to assume the FSCM Stock Options in accordance with
the terms of the FSCM Stock Plan and, upon consummation of the Merger, all
outstanding FSCM Stock Options will be converted into rights to purchase
MBI Common Stock. Beginning at the Effective Time, (i) each FSCM Stock
Option assumed by MBI will be exercisable solely for shares of MBI Common
Stock, (ii) the number of shares of MBI Common Stock subject to each FSCM
Stock Option will equal the number of shares of FSCM Common Stock subject to
the FSCM Stock Options multiplied by the Exchange Ratio and (iii) the per
share exercise price for each FSCM Stock Option will be adjusted by dividing
such price by the Exchange Ratio, subject to adjustment as appropriate to
reflect any stock split, stock dividend, capitalization or similar
transaction subsequent to the Effective Time. MBI has agreed, at and after
the Effective Time, to reserve sufficient shares of MBI Common Stock for
issuance with respect to the FSCM Stock Options under the FSCM Stock Plan to
be assumed by MBI. MBI will also file with the Commission, and obtain the
effectiveness of, a registration statement with respect to such options.
The Merger Agreement provides the Merger Sub will honor all
severance and other compensation contracts between FSCM or TRIB and any
current or former director, officer, employee or agent thereof, along with all
provisions for vested benefits or other vested amounts earned or accrued
through the Effective Time under FSCM employee plans. The FSCM employee plans
will continue as plans of Merger Sub until such time as the former employees
of FSCM and TRIB are integrated into MBI's employee benefit plans that are
available to other employees of MBI and its subsidiaries. MBI will take such
steps as are necessary or required to integrate the former employees of FSCM
and TRIB into MBI's employee benefit plans available to other employees of MBI
and its subsidiaries as soon as practicable after the Effective Time, with (i)
full credit for prior service with FSCM or TRIB for purposes of vesting
and eligibility for participation and benefit allocation (but not benefit
accruals under any defined benefit plan) and co-payments and deductibles, (ii)
waiver of all waiting periods, evidence of insurability and pre-existing
condition exclusions or penalties and (iii) full credit for claims arising
prior to the Effective Time for purposes of deductibles, out-of-pocket
maximums, benefit maximums and all other similar limitations for the
applicable plan year in which the Merger is consummated.
-24-
<PAGE> 30
OTHER AGREEMENTS
In addition to and contemporaneously with the Merger Agreement, MBI
and each of the four directors of FSCM executed a separate Voting Agreement
pursuant to which each such director agreed that he will vote all of the
shares of FSCM Common Stock that he then owned, controlled or subsequently
acquires in favor of the approval and adoption of the Merger Agreement at the
Special Meeting. In addition, until the earliest to occur of the Effective
Time, the termination of the Voting Agreements or the abandonment of the
Merger, each such director further agreed that he will not vote any such
shares in favor of the approval of any other competing acquisition proposal
involving FSCM and a third party. Each such director also agreed that he
will not transfer shares of FSCM Common Stock unless, prior to such transfer,
the transferee executes an agreement in substantially the same form as the
Voting Agreement. As of the Record Date, such directors owned, directly or
indirectly, or controlled the voting of, an aggregate of 136,927 shares of
FSCM Common Stock, or approximately 52.58% of the issued and outstanding
shares.
INTERESTS OF CERTAIN PERSONS IN THE MERGER
EMPLOYMENT AND CONSULTING AGREEMENTS. Perry B. Hansen, President
of FSCM and Chief Executive Officer of TRIB, John T. Kustes, Treasurer of
FSCM and Senior Vice President, Senior Operations Officer and Assistant
Secretary of TRIB, Richard J. Carlson, President and Chief Operating Officer
of TRIB, and Donald P. Ackerman, Executive Vice President and Senior Lending
Officer of TRIB, have entered into separate employment agreements
(collectively, the "Employment Agreements") with MBI pursuant to which such
executive officers will continue to be employed by MBI or its affiliates
following the consummation of the Merger. Pursuant to the Employment
Agreements, in addition to certain other terms and conditions, commencing at
the Effective Time, MBI will engage such executive officers as directors
and/or senior officers of MBI's Quad Cities banking unit, and such executive
officers will be entitled to receive (i) an annual salary in the amount of
$210,000, $104,000, $155,000 and $117,000, respectively, and (ii) cash
transition payments in the amount of $105,000, $21,000, $31,000 and $23,500,
respectively, if such executive officers are in the employ of MBI on the
twelve-month and/or twenty-four-month anniversaries of the Effective Time, as
the case may be. In addition, Perry B. Hansen will receive an incentive
bonus in the amount of $100,000. MBI has also entered into the Consulting
Agreement with Richey Corporation, which agreement supersedes and replaces
that certain Services Agreement dated March 23, 1995 between FSCM and Richey
Corporation. Douglas M. Kratz, Chairman of the Board, Chief Executive Officer
and Chief Financial Officer of FSCM and Vice Chairman of the Board of TRIB, is
the Secretary and Treasurer of Richey Corporation. The Consulting Agreement
provides, among other things, that Richey Corporation will provide accounting,
financial and/or administrative advisory services to MBI commencing at the
Effective Time and continuing thereafter until December 31, 2000. Richey
Corporation will receive $21,000 per month under the Consulting Agreement.
In addition, upon satisfaction of certain conditions, Richey Corporation will
receive an incentive fee in the amount of $100,000 on January 5, 1999 and a
transaction fee in the amount of $105,000 on each of the twelve and
twenty-four month anniversaries of the Effective Time.
RETENTION BONUSES. Richey Corporation, Perry B. Hansen, John T.
Kustes, Richard J. Carlson, Donald P. Ackerman and Jean M. Hanson are to
receive bonuses in the amount of $105,000, $105,000, $40,000, $40,000,
$40,000 and $20,000, respectively, payable contemporaneously with the
Effective Time, for the purpose of inducing such individuals to remain in the
employ of FSCM and/or TRIB through the Effective Time.
-25-
<PAGE> 31
INDEMNIFICATION. MBI also has agreed that the Merger will not
diminish any indemnification obligations of FSCM or TRIB in favor of the
employees, agents, directors or officers or FSCM or TRIB existing as of the
Effective Time by operation of law or by virtue of the Certificate of
Incorporation or other charter documents, by-laws, contracts, resolutions or
other agreements or documents of FSCM or TRIB in effect as of the Effective
Time. To the extent that FSCM's existing directors' and officers' liability
insurance policy provides coverage for the acts or omissions of the directors
and officers of FSCM and TRIB prior to the Effective Time, FSCM has agreed to
give to such insurance carrier and to MBI notice of any potential claims
thereunder. On and after the Effective Time, MBI's directors' and officers'
liability insurance policy will provide coverage for the prior acts of the
directors and officers of FSCM and TRIB.
BACKGROUND OF AND REASONS FOR THE MERGER; BOARD RECOMMENDATIONS
BACKGROUND OF THE MERGER. In late 1997, in connection with the 1998
calendar year budgeting process, executive management of FSCM struggled with
the challenge of how to continue to grow assets along with improving FSCM's
financial performance. FSCM's efficiency and overhead ratios already were
better than its peer group ratios. Management was very concerned with how
FSCM could maintain or improve the current return on equity and return on
asset performance while continuing to meet the growth objective under FSCM's
strategic corporate plan. Additionally, because of national and local
unemployment trends, management was experiencing increased difficulty in
locating, employing and retaining personnel for mid- to upper-management
positions. Such personnel were critical to FSCM's continued growth and
financial performance.
Consideration was given to various strategic alternatives, including
using proceeds from an initial public offering or the issuance of trust
preferred securities to finance an out-of-the-market bank acquisition or a
new bank start-up. However, FSCM's executive management believed it was
imperative that, in evaluating these possible strategies, the market value of
FSCM be determined as a benchmark in measuring the impact of various
alternatives on that market value.
At the meeting of FSCM's Board of Directors on December 22, 1997,
the Board discussed the possibility of engaging an investment banking firm to
perform a valuation analysis and evaluate the strategic alternatives
reasonably available to FSCM and TRIB. At that meeting, the Board directed
FSCM management to retain Howe Barnes as FSCM's financial advisor to analyze
the alternatives reasonably available to FSCM and to sign on behalf of FSCM
an engagement letter from Howe Barnes dated December 18, 1997. At the
December 22, 1997 meeting, the Board also directed Messrs. Douglas M. Kratz
and Perry B. Hansen to work with representatives of Howe Barnes relative to
this matter.
Howe Barnes' Valuation Assessment, dated January 29, 1998, was
presented by a Howe Barnes representative to Messrs. Kratz and Hansen in a
meeting with them on January 29, 1998. The alternatives analyzed consisted
of a public offering of FSCM Common Stock or an offering of trust preferred
securities to finance an acquisition of a banking entity or the formation of
a new bank, and a business combination with another financial institution.
The Howe Barnes Valuation Assessment was extensively discussed by a
majority of FSCM's Board of Directors during the week of February 9, 1998.
The members of the Board evaluated whether the holders of FSCM Common Stock
would be best served by remaining independent or by pursuing a business
combination. Specifically, the Board members considered a number of factors in
-26-
<PAGE> 32
determining which of the alternatives to pursue, including the likely effects of
each alternative on stockholder value and liquidity and the interests of FSCM's
stakeholders (consisting of its stockholders, employees, customers and
community), the risks to FSCM and its stakeholders of each alternative, and the
likely feasibility and timing of the proposed transactions. They also
considered the likely effects that financing an acquisition or forming a new
bank would have on FSCM's financial performance and condition.
On February 13, 1998, the Board members instructed Howe Barnes to
solicit and evaluate bids in a controlled bid process to determine the value
that FSCM's stockholders could receive if FSCM entered into a business
combination and to determine whether a business combination would be the best
alternative from a financial point of view to FSCM's stockholders.
During the period from February 27, 1998 until March 18, 1998, on a
confidential basis, Howe Barnes contacted seven banking entities located in
the states of Wisconsin, Missouri, Ohio, Nebraska and Minnesota. One of the
contacted entities was MBI, which expressed interest in a business
combination with FSCM and made a proposal regarding the principal terms of a
merger.
In a March 19, 1998 telephone conference call, Messrs. Kratz and
Hansen, a representative from Howe Barnes, and legal counsel for FSCM
discussed the proposals received in the controlled bid process. In that
conference, a representative of Howe Barnes reported that in its opinion, the
MBI proposal was the most favorable proposal from a financial point of view
to FSCM's stockholders. Messrs. Kratz and Hansen again discussed whether
the MBI proposal would result in a return of value to FSCM's stockholders
that could not be achieved through operating as an independent entity. Based
on the alternatives available to it if FSCM remained independent and the
likely financial effects of financing the strategic alternatives under
consideration, Messrs. Kratz and Hansen determined that the proposed
business combination with MBI would likely provide a greater rate of return
to FSCM's stockholders than could be achieved if FSCM remained independent.
On March 20 and 21, 1998, a representative of Howe Barnes had
discussions with a representative of MBI regarding certain terms of the
proposed transaction.
On March 23, 1998, Messrs. Kratz and Hansen and a representative of
Howe Barnes met with representatives of MBI to discuss the terms of a
proposed business combination between MBI and FSCM. In that meeting, the
representatives of FSCM and MBI reached a preliminary agreement on some of
the principal terms of the proposed business combination.
Management of MBI sent to FSCM a letter dated March 25, 1998 that
contained the principal terms of the proposal. The letter stated that the
business combination was subject to satisfactory due diligence review by MBI,
approval by the Executive Committee of the MBI Board of Directors, and the
execution of definitive acquisition agreements containing terms and
conditions mutually acceptable to MBI and FSCM, including agreements of each
member of FSCM's Board of Directors to vote shares of FSCM Common Stock
beneficially owned by such member in favor of the Merger Agreement.
At a regular meeting of FSCM's Board of Directors on March 26, 1998,
Messrs. Kratz and Hansen presented to the FSCM Board the terms of the March
25, 1998 MBI proposal. The Board extensively discussed the January 29, 1998
Valuation Assessment prepared by Howe Barnes and the strategic alternatives
available to FSCM, including remaining independent. The FSCM Board discussed
-27-
<PAGE> 33
and analyzed which of the alternatives would result in the highest return of
value to FSCM's stockholders. Following an in-depth discussion, FSCM's Board
of Directors preliminarily accepted MBI's proposal as described in the March
25, 1998 letter from MBI. The FSCM Board also authorized Mr. Kratz to
continue negotiations with representatives of MBI.
On March 27, 1998, Mr. Kratz contacted a representative of MBI to
inform MBI of the decision of the FSCM Board at its March 26, 1998 meeting.
On April 6, 1998, MBI's legal counsel delivered to FSCM and its
legal counsel a draft agreement and plan of merger. MBI and FSCM and their
respective legal counsel continued to negotiate regarding the terms and
conditions of the definitive agreement.
These negotiations resulted in the presentation of the Merger
Agreement to FSCM's Board of Directors on April 10, 1998. At this meeting,
the Board of Directors received a comprehensive report from Mr. Kratz on the
negotiations with MBI. Also at the meeting, Howe Barnes presented its
analysis of the Merger to the Board of Directors and reported its conclusion
that the Merger consideration to be received by FSCM's stockholders was fair
to FSCM's stockholders from a financial point of view. The FSCM Board of
Directors unanimously approved the Merger Agreement. The Merger Agreement
was signed by the parties on April 13, 1998.
FSCM'S REASONS FOR THE MERGER AND BOARD RECOMMENDATION. FSCM's Board
of Directors believes that the terms of the Merger Agreement, which are the
product of arm's-length negotiations between representatives of MBI and FSCM,
are fair and in the best interests of FSCM and its stockholders. In reaching
this determination, FSCM's Board consulted with FSCM's legal counsel with
respect to its legal duties, the terms of the Merger Agreement and related
issues; with its financial advisor, Howe Barnes, with respect to the
financial aspects and fairness of the Merger and the Exchange Ratio and other
strategic alternatives available to FSCM; and with members of FSCM's
management regarding, among other things, operational matters and
alternatives available if FSCM were to continue to grow.
In reaching its determination to approve the Merger and the Merger
Agreement, FSCM's Board of Directors considered all factors it believed to be
material, which are the following:
(a) FSCM's Board analyzed information with respect to the
financial condition, results of operations, cash flow, businesses
and prospects of FSCM. In this regard, FSCM's Board of Directors
analyzed the alternative of FSCM continuing on an independent basis
and the possibilities of acquiring another banking entity or forming
a new bank and the likely effects on FSCM's financial condition and
performance of financing these transactions. The Board also
considered these alternatives as compared to the likely effects of
entering into the Merger with MBI. The range of values for a share
of FSCM Common Stock on a sale of control basis was determined to
generally exceed the present value of FSCM Common Stock on a
stand-alone basis and under other business strategies that could be
reasonably implemented by FSCM.
(b) FSCM's Board considered the opinion of Howe Barnes
that the consideration to be received by FSCM's stockholders in the
Merger was fair to FSCM's stockholders from a financial point of
view.
-28-
<PAGE> 34
(c) FSCM's Board considered the current operating
environment in the financial services and banking industries,
including the continued consolidation and increasing competition in
financial services and banking, the prospect for further changes in
banking and financial services, including proposed federal
legislation that would deregulate the financial services and banking
industries, federal regulatory agency consolidation, and the
importance of being able to capitalize on developing opportunities
in the banking and financial services industries.
(d) FSCM's Board considered the other terms of the Merger
Agreement and exhibits, including the tax-deferred nature of the
consideration to be received by FSCM stockholders in the Merger.
(e) FSCM's Board considered the financial analyses, pro
forma and other information with respect to FSCM and MBI prepared by
Howe Barnes as well as the knowledge of FSCM's Board regarding FSCM,
MBI and their respective businesses.
(f) FSCM's Board considered the value of FSCM Common
Stock continuing as an independent entity as compared to the value
of the Merger consideration in light of the factors summarized above
and the current economic and financial environment, including other
possible strategic alternatives, the results of the discussions
between FSCM and Howe Barnes and various third parties, and the
belief of the Board and FSCM's management that the Merger offered
the best transaction available to FSCM and its stockholders. The
Board also considered that the FSCM Common Stock was thinly traded
and that the MBI Common Stock to be received by FSCM's stockholders
would be more liquid than the FSCM Common Stock.
(g) FSCM's Board considered the ability of MBI to
complete the Merger based on the Board's review of MBI's capital
position as reflected in MBI's latest reports filed with the SEC and
based on other similar acquisitions completed by MBI in the past 18
months.
(h) FSCM's Board considered the historical market
performance of the MBI Common Stock.
The foregoing discussion of the information and factors considered
by FSCM's Board of Directors is not intended to be exhaustive but constitutes
the material factors considered by the Board. In reaching its determination
to approve and recommend the Merger Agreement, FSCM's Board of Directors did
not assign any relative or specific value to the various factors, and
individual directors may have weighed factors differently.
After deliberating with respect to the Merger and the other
transactions contemplated by the Merger Agreement, considering (among other
things) the matters discussed above and the opinion of Howe Barnes referred
to above, FSCM's Board unanimously approved the Merger Agreement and the
transactions contemplated in the Merger Agreement as being in the best
interests of FSCM and its stockholders.
FOR THE REASONS DESCRIBED ABOVE, THE FSCM BOARD OF DIRECTORS APPROVED
THE MERGER AGREEMENT AND BELIEVES THE MERGER IS
-29-
<PAGE> 35
FAIR TO, AND IS IN THE BEST INTERESTS OF, FSCM'S STOCKHOLDERS. ACCORDINGLY THE
FSCM BOARD OF DIRECTORS RECOMMENDS THAT HOLDERS OF FSCM COMMON STOCK VOTE FOR
THE APPROVAL AND ADOPTION OF THE MERGER AGREEMENT. ---
MBI'S REASONS AND BOARD RECOMMENDATIONS. The Executive Committee of
the Board of Directors of MBI considered a number of factors, including,
among other things, the financial condition of FSCM and projected synergies
that are anticipated to result from the Merger. The Executive Committee
concluded that the Merger presents an unique opportunity for MBI to (i)
increase its presence in northern Illinois through the acquisition of an
established banking organization having operations in the targeted area and
(ii) to enhance MBI's ability to compete in the increasingly competitive
banking and financial services industry. MBI's decision to pursue
discussions with FSCM was primarily a result of MBI's assessment of the value
of FSCM's banking franchise, its substantial asset base within that area and
the compatibility of the businesses of the two banking organizations.
OPINION OF FINANCIAL ADVISOR TO FSCM
At the meeting of the Board of Directors of FSCM on April 10, 1998,
at which the terms of the proposed Merger were discussed and considered, Howe
Barnes rendered an oral opinion to FSCM's Board of Directors that, as of the
date of such opinion and based upon the matters set forth in such opinion,
the Merger consideration was fair, from a financial point of view, to the
holders of FSCM Common Stock. Howe Barnes issued its written opinion on
April 13, 1998 upon the execution of the Merger Agreement. Howe Barnes has
confirmed its April 13, 1998 opinion by delivery of an updated written
opinion to the Board of Directors of FSCM dated the date of this Proxy
Statement/Prospectus stating that, as of the date hereof and based on the
matters set forth in such opinion, the Merger consideration is fair, from a
financial point of view, to the holders of FSCM Common Stock.
THE FULL TEXT OF HOWE BARNES' OPINION DATED THE DATE HEREOF, WHICH
SETS FORTH ASSUMPTIONS MADE, PROCEDURES FOLLOWED, MATTERS CONSIDERED AND
LIMITS ON THE REVIEW UNDERTAKEN BY HOWE BARNES, IS ATTACHED AS ANNEX A AND IS
-------
INCORPORATED HEREIN BY REFERENCE. THE DESCRIPTION OF THE HOWE BARNES OPINION
SET FORTH IN THIS PROXY STATEMENT/PROSPECTUS IS QUALIFIED IN ITS ENTIRETY BY
REFERENCE TO THE FULL TEXT OF SUCH OPINION. FSCM STOCKHOLDERS ARE URGED TO
READ THE HOWE BARNES OPINION IN ITS ENTIRETY.
Howe Barnes' opinion as expressed herein is limited to the fairness,
from a financial point of view, of the Merger consideration to the holders of
FSCM Common Stock and does not address FSCM's underlying business decision to
proceed with the Merger, nor does it express an opinion as to the prices at
which shares of MBI Common Stock issued in the Merger may trade if and when
they are issued or at any future time. The opinion is directed only to the
Merger consideration to be received by FSCM stockholders in the Merger and
does not constitute a recommendation to any holder of FSCM Common Stock as to
how such holder should vote with respect to the Merger Agreement at any
meeting of holders of FSCM Common Stock.
Howe Barnes, as part of its investment banking business, is
regularly engaged in the valuation of banks and bank holding companies,
thrifts and thrift holding companies, and various other financial services
companies, in connection with mergers and acquisitions, initial and secondary
offerings of securities, and valuations for other purposes. The Board of
Directors of FSCM selected
-30-
<PAGE> 36
Howe Barnes on the basis of its familiarity with the financial services
industry, its qualifications, its ability, its previous experience and its
reputation with respect to such matters.
For purposes of its opinion dated the date hereof and in connection
with its review of the proposed transaction with MBI, Howe Barnes, among
other things: (i) participated in discussions with representatives of FSCM
concerning FSCM's financial condition, businesses, assets, earnings,
prospects and such senior management's views as to its future financial
performance; (ii) reviewed the terms of the Merger Agreement; (iii) reviewed
this Proxy Statement/Prospectus; (iv) reviewed certain publicly available
financial statements, both audited (where available) and unaudited, and
related financial information of FSCM and MBI, including those included in
their respective Annual Reports on Form 10-K for the past three years ended
and the respective Quarterly Reports on Form 10-Q for the periods ended
September 30 and June 30, 1997, as well as other internally generated reports
relating to asset/liability management, asset quality and so forth; (v)
reviewed certain financial forecasts and projections of FSCM prepared by its
management and reviewed publicly available information, earnings estimates
and research reports available for MBI; (vi) discussed and reviewed certain
aspects of the past and current business operations, financial condition and
future prospects of FSCM with certain members of management; (vii) reviewed
reported market prices and historical trading activity of MBI Common Stock;
(viii) reviewed certain aspects of the financial performance of FSCM and MBI
and compared such financial performance of FSCM and MBI, together with stock
market data relating to MBI Common Stock, with similar data available for
certain other financial institutions and certain of their publicly traded
securities; and (ix) reviewed certain of the financial terms, to the extent
publicly available, of certain recent business combinations involving other
financial institutions.
In conducting its review and rendering its opinion dated the date
hereof, Howe Barnes assumed and relied, without independent verification,
upon the accuracy and completeness of all of the financial and other
information that has been provided to Howe Barnes by FSCM, MBI and their
respective representatives, and of the publicly available information that
was reviewed by Howe Barnes. Howe Barnes is not an expert in the evaluation
of allowances for loan losses and has not independently verified such
allowances, and has relied on and assumed that the aggregate allowances for
loan losses set forth in the balance sheets of each of FSCM and MBI at
December 31, 1997 are adequate to cover such losses and complied fully with
applicable law, regulatory policy and sound banking practice as of the date
of such financial statements. Howe Barnes was not retained to and did not
conduct a physical inspection of any of the properties or facilities of FSCM
or MBI, did not make any independent evaluation or appraisal of the assets,
liabilities or prospects of FSCM or MBI, was not furnished with any such
evaluation or appraisal, and did not review any individual credit files.
Howe Barnes' opinion is necessarily based on economic, market and other
conditions as in effect on, and the information made available to us as of,
the date hereof.
The following is a brief summary of the analyses presented by Howe
Barnes to FSCM's Board of Directors in connection with Howe Barnes' written
opinion.
STOCK TRADING HISTORY. Howe Barnes examined the history of trading
prices and volume for MBI Common Stock and the relationship between the
movements of such trading prices to movements of the Standard & Poor's 500
Index, other financial indices, and of the trading prices of the common
stocks of the companies in the MBI peer group (consisting of Associated
Banc-Corp, Comerica Incorporated, Commerce Bancshares, Inc., Fifth Third
Bancorp, Firstar Corporation, Huntington Bancshares Incorporated, KeyCorp,
Marshall & Ilsley Corporation, National City Corporation, Northern Trust
Corporation, Norwest Corporation, Old Kent Financial Corporation, Star Banc
Corporation and
-31-
<PAGE> 37
U.S. Bancorp), all of which are publicly-traded Midwest bank holding companies
with total assets between $10 and $100 billion. The companies in the MBI peer
group are similar in size to MBI, and operate in an economic, geographic and
demographic environment that Howe Barnes deemed to be similar to the environment
in which MBI operates. Comparative financial statistics were reviewed and
particular attention was given to the one-year period leading up to the date of
the fairness opinion. FSCM Common Stock is not quoted on an organized exchange
and no active trading market has developed for FSCM Common Stock.
COMPARABLE COMPANY ANALYSIS. Howe Barnes calculated, reviewed and
compared selected publicly available financial data and ratios (at or for the
twelve months ended December 31, 1997) and trading multiples (as of April 13,
1998) for MBI to the corresponding ratios and multiples of the MBI peer
group. The trading multiples used in comparing MBI to the MBI peer group
were market price as a multiple of: (i) book value (which was 3.05x for MBI
as compared to a mean of 4.00x for the MBI peer group); (ii) tangible book
value (which was 4.47x for MBI as compared to a mean of 4.84x for the MBI
peer group); (iii) earnings per share ("EPS") for the twelve months ended
December 31, 1997 (which was 31.9x for MBI compared to a mean of 26.3x for
the MBI peer group); (iv) 1998 estimated EPS (which was 19.9x for MBI compared
to a mean of 20.9x for the MBI peer group); and (v) 1999 estimated EPS (which
was 18.0 for MBI compared to a mean of 18.4x for the MBI peer group). Howe
Barnes used earnings estimates as published by the Institutional Brokers
Estimate System ("IBES"), where available, for the companies comprising the
MBI peer group. IBES is a data service that monitors and publishes a
compilation of earnings estimates produced by selected research analysts on
companies of interest to investors. In instances when IBES estimates were
not available, Howe Barnes used consensus earnings estimate from alternate
publicly-recognized earnings estimate services.
Because FSCM Common Stock does not trade on any organized exchange
and an active market for FSCM Common Stock has not developed, the usefulness
of comparing trading multiples of FSCM to a comparable company peer group is
diminished.
COMPARABLE TRANSACTION ANALYSIS. As part of its analyses, Howe
Barnes reviewed 30 completed or pending comparable mergers and acquisitions
of commercial banks and bank holding companies headquartered throughout the
United States announced from April 29, 1997 to April 1, 1998 in which total
assets of the acquired company were in the approximate range of $300 million
to $900 million ("Comparable Transactions"). For each transaction for which
data was available, Howe Barnes calculated the multiple of the offer value to
the acquired company's: (i) EPS for the twelve months preceding ("LTM"); (ii)
book value per share; and (iii) premium to core deposits.
The calculations for the Comparable Transactions yielded a range of
multiples of offer value to LTM EPS of 16.2x to 33.5x, with a mean of 23.5x
and a median of 22.9x; a range of multiples of offer value to book value of
1.62x to 4.65x, with a mean of 2.91x and a median of 2.82x; and a range of
percentages of offer value premium to core deposits of 11.4% to 50.3%, with a
mean of 25.0% and a median of 24.0%.
Howe Barnes compared these multiples with the corresponding
multiples for the Merger, valuing the Merger consideration at $115.0 million
or $379.72 per share. In calculating the multiples for the Merger, Howe
Barnes used FSCM's EPS for the twelve months ended December 31, 1997, and
book value per share and core deposits as of December 31, 1997. Howe Barnes
calculated that the Merger consideration represented multiples of 21.5x
FSCM's LTM EPS, 3.50x its book value per share and a core deposit premium of
28.5%.
-32-
<PAGE> 38
No company or transaction used in the above analyses as a comparison
is identical to FSCM, MBI or the Merger. Accordingly, an analysis of the
results of the foregoing is not mathematical; rather, it involves complex
considerations and judgments concerning differences in financial operating
characteristics, including, among other things, differences in revenue
composition and earnings performance among the companies, and other facts
that could affect the public trading value of the companies to which they are
being compared.
DISCOUNTED CASH FLOW ANALYSIS. Using discounted cash flow analysis,
Howe Barnes estimated the future dividend streams that FSCM could produce
over the period from January 1, 1998 through December 31, 2002, assuming
annual asset growth rates ranges between 5.0% and 12.0%, and further assumed
FSCM performed in accordance with recent historical trends and the future
outlook of FSCM management. Howe Barnes calculated terminal values as a
perpetuity with asset growth rates ranging from 3.0% to 5.0%. The dividend
streams and terminal value were discounted to present values as of December
31, 1997, using discount rates ranging from 12.0% to 14.0%, which reflect
different assumptions regarding the required rates of return to holders and
prospective buyers of FSCM Common Stock. Howe Barnes estimated a range of
terminal values by applying multiples ranging from 16x to 20x estimated
year-end 2002 net income. The range of terminal multiples was chosen based
on past and current trading multiples of institutions similar to FSCM and
past and current multiples of comparable merger and acquisition transactions.
The range of present values of FSCM resulting from this analysis was $83.5
million to $108.9 million, or $276.41 to $360.49 per share.
In connection with its written opinion dated as of the date of this
Proxy Statement/Prospectus, Howe Barnes performed procedures to update
certain of its analyses and reviewed the assumptions on which such analyses
were based and the factors considered in connection therewith. In updating
its opinion, Howe Barnes did not utilize any methods of analysis in addition
to those described.
The foregoing is a summary of the material financial analyses
performed by Howe Barnes and presented to FSCM's Board of Directors, but does
not purport to be a complete description of the analyses performed by Howe
Barnes. The preparation of a fairness opinion is a complex process and is
not necessarily susceptible to partial analysis or summary description.
Furthermore, in arriving at its opinion, Howe Barnes did not attribute any
particular weight to any analysis or factor considered by it, but rather made
qualitative judgments as to the significance and relevance of each analysis
and factor. Selecting portions of the analyses or of the summary set forth
above, without considering the analyses as a whole, could create an
incomplete view of the processes underlying Howe Barnes' opinion. The ranges
of valuations resulting from any particular analysis described above should
not be taken to be Howe Barnes' view of the actual value of FSCM, or the
current or future trading price for MBI Common Stock.
In performing its analyses, Howe Barnes made numerous assumptions
with respect to industry performance, business and economic conditions and
other matters, many of which are beyond the control of FSCM and MBI. The
analyses performed by Howe Barnes are not necessarily indicative of actual
values of future results, which may be significantly more or less favorable
than suggested by such analyses. Such analyses were prepared solely as part
of Howe Barnes' analysis of the fairness of the Merger consideration, from a
financial point of view, to the holders of FSCM Common Stock. The analyses
do not purport to be appraisals or to reflect the prices at which a company
or its securities may actually be bought or sold.
-33-
<PAGE> 39
Pursuant to the terms of a letter agreement dated February 13, 1998,
FSCM agreed to pay Howe Barnes for its services in connection with the
Merger, including the rendering of its opinion. FSCM has paid Howe Barnes
$50,000 for its Board of Directors presentation and written opinion rendered
April 13, 1998. Pursuant to its engagement of Howe Barnes, FSCM agreed to
pay Howe Barnes a cash fee of approximately $530,000 (less the $50,000
opinion fee), payable on the Closing Date, for advisory services rendered in
connection with negotiation and execution of the Merger Agreement. In
addition, FSCM agreed to indemnify Howe Barnes against certain liabilities
arising out of its engagement, including liabilities under the federal
securities laws.
CONDITIONS OF THE MERGER
The respective obligations of MBI, Ameribanc and FSCM to consummate
the Merger are subject to the satisfaction of certain mutual conditions,
including the following:
(1) The Merger Agreement shall be approved and adopted by
the requisite vote of holders of FSCM Common Stock at the Special
Meeting.
(2) The Merger Agreement and the transactions
contemplated therein shall have been approved by the Federal Reserve
Board and any other federal and/or state regulatory agency whose
approval is required for the consummation of the transactions
contemplated therein, and all waiting periods after such approvals
required by law or regulation shall have expired.
(3) The Registration Statement of which this Proxy
Statement/Prospectus is a part, registering shares of MBI Common
Stock to be issued in the Merger, shall have been declared effective
and not be subject to a stop order or any threatened stop order.
(4) None of FSCM, MBI or Ameribanc shall be subject to
any order, decree or injunction of a court or agency of competent
jurisdiction that enjoins or prohibits the consummation of the
Merger.
(5) FSCM, MBI and Ameribanc each shall have received from
Thompson Coburn an opinion (which opinion shall not have been
withdrawn at or prior to the Effective Time) reasonably satisfactory
in form and substance to it to the effect that (i) the Merger will
constitute a reorganization within the meaning of Section 368 of the
Code, (ii) each of MBI and Ameribanc, on the one hand, and FSCM, on
the other, will constitute a "party to the reorganization" within
the meaning of Section 368 of the Code, and (iii) consequently, Code
Sections 361, 362 and 1032 will apply to the parties to the
reorganization as appropriate, subject to any applicable statutory,
regulatory or judicial limitations, and to the effect that, as a
result of the Merger, except with respect to cash received in lieu
of fractional share interests, and assuming that the MBI Common
Stock is a capital asset in the hands of the holder thereof at the
effective time (A) holders of FSCM Common Stock who receive MBI
Common Stock in the Merger will not recognize gain or loss for
federal income tax purposes, (B) the basis of such MBI Common Stock
will equal the basis of the FSCM Common Stock for which it is
exchanged and (C) the holding period of such MBI Common Stock will
include the holding period of the FSCM Common Stock for which it is
exchanged.
-34-
<PAGE> 40
The obligation of MBI and Ameribanc to consummate the Merger is
subject to the satisfaction, unless waived, of certain other conditions,
including the following:
(1) The representations and warranties of FSCM made in
the Merger Agreement shall be true and correct in all material
respects as of the Effective Time except (i) to the extent such
representations and warranties are by their express provisions made
as of a specific date or period, (ii) where the facts that caused
the failure of any representation or warranty to be so true and
correct have not resulted, and are not likely to result, in a
Material Adverse Effect (as defined in the Merger Agreement) on FSCM
and its subsidiary, taken as a whole, and (iii) for the effect of
transactions contemplated by the Merger Agreement, and all
obligations required to be performed by FSCM prior to the Effective
Time shall have been performed in all material respects, and MBI
shall have received a certificate of the Chief Executive Officer and
Chief Accounting Officer of FSCM to that effect.
(2) FSCM shall have obtained any and all material
permits, authorizations, consents, waivers and approvals required of
FSCM for the lawful consummation of the Merger.
(3) MBI and Ameribanc shall have received a letter of
KPMG Peat Marwick LLP, reasonably satisfactory in form and substance
to MBI and Ameribanc, to the effect that the Merger will qualify for
pooling-of-interests accounting treatment, which letter shall not
have been withdrawn at or prior to the Effective Time.
(4) Winthrop & Weinstine, P.A., counsel to FSCM, shall
have delivered to MBI an opinion dated as of the Closing Date or a
mutually agreeable earlier date regarding certain legal matters.
(5) Since April 13, 1998, there shall have been no
Material Adverse Effect on FSCM and its subsidiary, taken as a
whole.
(6) Prior to the Effective Time, FSCM and each of the
holders of Class A preferred stock, no par value, of FSCM shall have
agreed to convert such securities to FSCM Common Stock, all actions
required to effect such conversion shall have been taken and the
conversion, itself, shall have been concluded.
FSCM's obligation to consummate the Merger is subject to the
satisfaction, unless waived, of certain other conditions, including the
following:
(1) The representations and warranties of MBI and
Ameribanc made in the Merger Agreement shall be true and correct, in
all material respects, as of the Effective Time except (i) to the
extent such representations and warranties are by their express
provisions made as of a specific date or period, (ii) where the
facts that caused the failure of any representation or warranty to
be so true and correct have not resulted, and are not likely to
result, in a Material Adverse Effect on MBI and its subsidiaries,
taken as a whole, and (iii) for the effect of transactions
contemplated by the Merger Agreement, and all obligations required
to be performed by MBI and Ameribanc prior to the
-35-
<PAGE> 41
Effective Time shall have been performed in all material respects, and
FSCM shall have received a certificate from any Executive Vice
President of MBI to that effect.
(2) MBI and Ameribanc shall have obtained any and all
material permits, authorizations, consents, waivers and approvals
required of MBI or Ameribanc for the lawful consummation of the
Merger.
(3) Since April 13, 1998, there shall have been no
Material Adverse Effect on MBI and its subsidiaries, taken as a
whole.
(4) Thompson Coburn, counsel to MBI, shall have delivered
to FSCM an opinion dated as of the Closing Date or a mutually
agreeable earlier date regarding certain legal matters.
REPRESENTATIONS AND WARRANTIES
The Merger Agreement contains extensive representations and
warranties by FSCM, MBI and Ameribanc. These include, among other things,
representations and warranties of FSCM as to (i) the organization and good
standing of it and TRIB, (ii) FSCM's capital structure, (iii) FSCM's
authority relative to the execution and delivery of, and performance of its
obligations under, the Merger Agreement, (iv) the documents, including
financial statements and other reports, filed by FSCM with the applicable
regulatory authorities, (v) title to and condition of assets, (vi) real
property, (vii) taxes, (viii) the absence of material adverse changes since
December 31, 1997, (ix) loans, commitments and contracts, (x) the absence of
material conflicts between its obligations under the Merger Agreement and its
charter documents and material contracts to which it is a party or by which
it is bound, (xi) litigation, (xii) directors' and officers' insurance,
(xiii) compliance with laws, (xiv) labor, (xv) the existence of certain
material interests of certain persons, (xvi) allowance for loan and lease
losses and non-performing assets, (xvii) employee benefit plans and related
matters, (xviii) the conduct of FSCM and TRIB from and after December 31,
1997, (xix) the absence of undisclosed liabilities, (xx) the accuracy of the
information supplied by FSCM for inclusion in this Proxy Statement/Prospectus
and related documents, (xxi) the absence of registration obligations with
respect to FSCM Common Stock, (xxii) the absence of actions that would
jeopardize the qualification of the transactions contemplated by the Merger
Agreement as a reorganization or for pooling-of-interests accounting
treatment or jeopardize the receipt of certain regulatory approvals, (xxiii)
obligations to brokers and finders, (xxiv) interest rate management
instruments, (xxv) the accuracy of the statements contained in the Merger
Agreement and related documents and (xxvi) Year 2000 compliance for all
computer software and hardware.
MBI's and Ameribanc's representations and warranties include, among
other things, those as to (i) their respective organization and good
standing, (ii) the capital structure of MBI, (iii) their authority relative
to the execution and delivery of, and performance of their respective
obligations under, the Merger Agreement, (iv) the documents, including
financial statements and other reports, filed by MBI with applicable
regulatory authorities, (v) the absence of material adverse changes since
December 31, 1997, (vi) the accuracy of the information supplied by MBI or
Ameribanc for inclusion in this Proxy Statement/Prospectus and related
documents, (vii) the absence of obligations to brokers and finders and (viii)
the accuracy of the statements contained in the Merger Agreement and related
documents.
-36-
<PAGE> 42
TERMINATION, WAIVER AND AMENDMENT OF THE MERGER AGREEMENT
The Merger Agreement may be terminated at any time prior to the
Closing Date, whether before or after approval and adoption by the
stockholders of FSCM, (i) by mutual consent of the Executive Committee of the
Board of Directors of MBI and the Board of Directors of FSCM, or (ii)
unilaterally by the Executive Committee of the Board of Directors of MBI or
the Board of Directors of FSCM: (A) at any time after February 1, 1999, if
the Merger has not been consummated by such date (provided that the
terminating party is not then in material breach of any representation,
warranty, covenant or other agreement contained in the Merger Agreement); (B)
if the Federal Reserve Board or any other Regulatory Authority whose approval
is required for consummation of the Merger shall have issued a final
non-appealable denial of such approval; (C) if the stockholders of FSCM shall
not have approved and adopted the Merger Agreement at the Special Meeting; or
(D) in the event of a material volitional breach by the other party of any
representation, warranty or agreement contained in the Merger Agreement,
which breach is not cured within 30 days after written notice thereof is
given to the party committing such breach or is not waived by such other
party. In addition, the Executive Committee of the Board of Directors of MBI
may terminate the Merger Agreement in certain circumstances if environmental
investigations of all real property owned, leased or operated by FSCM as of
April 13, 1998 indicate that the estimated cost of corrective or remedial
action with regard to such properties would exceed $750,000 in the aggregate.
No assurance can be given that the Merger will be consummated on or before
February 1, 1999 or that MBI or FSCM will not elect to terminate the Merger
Agreement if the Merger has not been consummated on or before such date.
In the event of the termination of the Merger Agreement, it shall
become void and there shall be no liability on the part of any party or their
respective officers and directors, except that (i) confidentiality and
indemnification obligations shall survive termination, (ii) MBI shall pay all
printing, mailing and filing expenses with respect to the Registration
Statement and this Proxy Statement/Prospectus and (iii) in the case of
termination due to continued material volitional breach after notice and
opportunity to cure, the breaching party shall not be relieved of liability
to the non-breaching party arising from the intentional, deliberate or
willful breach of any representation, warranty, covenant or agreement
contained in the Merger Agreement.
Any provision of the Merger Agreement, including, without
limitation, the conditions to the consummation of the Merger and the
restrictions described under "- Business Pending the Merger," may be (i)
waived in writing at any time by the party that is, or whose shareholders or
stockholders are, entitled to the benefits thereof, or (ii) amended at any time
by written agreement of the parties approved by or on behalf of their
respective Boards of Directors or Executive Committees, whether before or
after the Special Meeting; provided, however, that after approval and
adoption of the Merger Agreement by the stockholders of FSCM at the Special
Meeting, no such modification may (i) alter or change the amount or kind of
consideration to be received by the FSCM stockholders pursuant to the Merger,
or (ii) adversely affect the tax treatment to FSCM stockholders as a result of
receiving the shares of MBI Common Stock in the Merger.
INDEMNIFICATION
FSCM, MBI and Ameribanc have agreed to indemnify each other and the
officers, directors and controlling persons of each other against any losses,
claims, damages or liabilities to which any such party may become subject
under federal or state laws or regulations, to the extent that such loss,
claim, damage or liability is based primarily upon information furnished to
the party subject to such
-37-
<PAGE> 43
liability by the other party, or out of an omission by such other party to state
a necessary or material fact in the Registration Statement of which this Proxy
Statement/Prospectus is a part.
CLOSING DATE
The Merger will be consummated and become effective upon the later
of (i) the issuance of a certificate of merger by the Office of the Secretary
of State of the State of Missouri and (ii) the filing of a certificate of
merger with the Office of the Secretary of State of the State of Delaware.
Under the Merger Agreement, unless otherwise agreed to by the parties, the
Closing Date shall occur on such date as MBI shall notify FSCM in writing
(such notice to be at least five business days before the Effective Time)
but: (i) not earlier than the Approval Date, which shall occur upon (a) the
receipt of the requisite approval of the Merger Agreement by the stockholders
of FSCM and (b) the approval of the Merger by the Federal Reserve Board and
any other Regulatory Agency whose approval is required, and the satisfaction
of all waiting periods for such approvals; and (ii) not later than the first
business day of the first full calendar month beginning at least five
business days after the Approval Date.
SURRENDER OF FSCM STOCK CERTIFICATES AND RECEIPT OF MBI COMMON STOCK
At the Effective Time, each outstanding share of FSCM Common Stock
(other than any shares held by stockholders who have perfected their
appraisal rights pursuant to the DGCL) will be converted into the right to
receive 6.8573 shares of MBI Common Stock. See "- General Description of the
Merger." Each holder of FSCM Common Stock, upon submission to the Exchange
Agent of a properly executed letter of transmittal and surrender to the
Exchange Agent of the stock certificate(s) formerly representing shares of
FSCM Common Stock, will be entitled to receive a stock certificate(s)
evidencing the shares of MBI Common Stock to which such stockholder is
entitled.
As soon as practicable following the Effective Time, the Exchange
Agent will mail to each FSCM stockholder of record as of the Effective Time
notification of the effectiveness of the Merger. The Exchange Agent also
will provide a letter of transmittal and instructions as to the procedure for
the surrender of the stock certificates evidencing the FSCM Common Stock and
the receipt of shares of MBI Common Stock. It will be the responsibility of
each holder of FSCM shares to submit all certificates formerly evidencing
such holder's shares of FSCM Common Stock to the Exchange Agent. No
dividends or other distributions will be paid to a former FSCM stockholder
with respect to shares of MBI Common Stock until such stockholder's properly
completed letter of transmittal and stock certificates formerly representing
FSCM Common Stock, or, in lieu thereof, such evidence of a lost, stolen or
destroyed certificate and/or such insurance bond as the Exchange Agent may
reasonably require, are delivered to the Exchange Agent. All dividends or
other distributions on the MBI Common Stock declared between the Closing Date
and the date of the surrender of a FSCM stock certificate will be held for
the benefit of the stockholder and will be paid to the stockholder, without
interest thereon, upon the surrender of such stock certificate(s) or
documentation and/or insurance bond in lieu thereof.
FRACTIONAL SHARES
No fractional shares of MBI Common Stock will be issued to the
former stockholders of FSCM in connection with the Merger. Each holder of
FSCM Common Stock who otherwise would have been entitled to receive a
fraction of a share of MBI Common Stock shall receive in lieu thereof cash,
without interest, in an amount equal to the holder's fractional share
interest multiplied by the closing stock price of MBI Common Stock on the
NYSE Composite Tape on the Closing Date as reported in The
-38-
<PAGE> 44
Wall Street Journal. Cash received by FSCM stockholders in lieu of fractional
shares may give rise to taxable income. See "CERTAIN FEDERAL INCOME TAX
CONSEQUENCES OF THE MERGER."
REGULATORY APPROVAL
In addition to the approval of the Merger Agreement by the FSCM
stockholders, the obligations of the parties to effect the Merger are subject
to prior approval of the Federal Reserve Board and the Illinois Commissioner.
As a bank holding company, MBI is subject to regulation under the BHCA. MBI
will file all required applications seeking approval of the Merger with the
Regulatory Authorities.
Under the BHCA, the Federal Reserve Board can withhold approval of
the Merger if, among other things, it determines that the effect of the
Merger would be to substantially lessen competition in the relevant market.
In addition, the Federal Reserve Board is required to consider whether the
combined organization meets the requirements of the Community Reinvestment
Act of 1977, as amended, by assessing the involved entities' respective
records of meeting the credit needs of the local communities in which they
are chartered, consistent with the safe and sound operation of such
institutions. In its review, the Federal Reserve Board also is required to
examine the financial and managerial resources and future prospects of the
combined organization and analyze the capital structure and soundness of the
resulting entity. The Federal Reserve Board has the authority to deny an
application if it concludes that the combined organization would have
inadequate capital.
The Merger cannot be consummated prior to receipt of all required
approvals. There can be no assurance that required regulatory approvals for
the Merger will be obtained, and, if the Merger is approved, as to the date
of such approvals or whether the approvals will contain any unacceptable
conditions. There can likewise be no assurance that the United States
Department of Justice will not challenge the Merger during the waiting period
set aside for such challenges after receipt of approval from the Federal
Reserve Board. See "SUPERVISION AND REGULATION."
MBI and FSCM are not aware of any governmental approvals or actions
that may be required for consummation of the Merger other than as described
above. Should any other approval or action be required, it is presently
contemplated that such approval or action would be sought. There can be no
assurance that any necessary regulatory approvals or actions will be timely
received or taken, that no action will be brought challenging such approval
or action or, if such a challenge is brought, as to the result thereof, or
that any such approval or action will not be conditioned in a manner that
would cause the parties to abandon the Merger. See "SUPERVISION AND
REGULATION."
BUSINESS PENDING THE MERGER
The Merger Agreement provides that, during the period from April 13,
1998 to the Effective Time, FSCM and its subsidiary will conduct their
respective businesses according to the ordinary and usual course consistent
with past practices and use their best efforts to maintain and preserve their
respective business organizations, employees and advantageous business
relationships and retain the services of their officers and key employees.
Furthermore, from April 13, 1998 to the Effective Time, except as
provided in the Merger Agreement, FSCM will not, and will not permit its
subsidiary to, without the prior written consent of MBI and Ameribanc:
-39-
<PAGE> 45
(1) declare, set aside or pay any dividends or other
distributions, directly or indirectly, in respect of its capital
stock (other than dividends from the FSCM subsidiary to FSCM),
except that FSCM may declare and pay regular quarterly cash
dividends of not more than $0.625 per share; provided, however, that
FSCM may not declare or pay a quarterly dividend for any quarter in
which FSCM stockholders will be entitled to receive a regular
quarterly dividend on the shares of MBI Common Stock to be issued in
the Merger;
(2) enter into or amend any employment, severance or
similar agreement or arrangement with any director, officer or
employee, or materially modify any of the FSCM employee plans or
grant any salary or wage increase or materially increase any
employee benefit (including incentive or bonus payments), except
normal individual increases in compensation to employees consistent
with past practice, or as required by law or contract, and except
for such increases of which FSCM notifies MBI and Ameribanc in
writing and which MBI and Ameribanc do not disapprove within ten
days of the receipt of such notice;
(3) authorize, recommend, propose or announce an
intention to authorize, recommend or propose, or enter into an
agreement in principle with respect to, any merger, consolidation or
business combination (other than the Merger), any acquisition of a
material amount of assets or securities, any disposition of a
material amount of assets or securities or any release or
relinquishment of any material contract rights;
(4) propose or adopt any amendments to its Certificate of
Incorporation or other charter document or by-laws;
(5) issue, sell, grant, confer or award any capital stock
options, warrants, conversion rights or other rights, except FSCM
may issue shares of FSCM Common Stock upon (A) exercise of FSCM
options outstanding on April 13, 1998, and (B) conversion of FSCM's
preferred stock to FSCM Common Stock, or effect any stock split or
adjust, combine, reclassify or otherwise change its capitalization
as it existed on April 13, 1998;
(6) with the exception of the conversion of FSCM's
preferred stock into FSCM Common Stock, purchase, redeem, retire,
repurchase or exchange, or otherwise acquire or dispose of, directly
or indirectly, any capital stock, options, warrants, conversion
rights or other rights, whether pursuant to the terms of such
capital stock, options, warrants, conversion rights or other rights
or otherwise;
(7) (i) without first consulting with and obtaining the
written consent of MBI, cause or permit TRIB to enter into, renew or
increase any loan or credit commitment (including stand-by letters
of credit) to, or invest or agree to invest in any person or entity
or modify any of the material provisions or renew or otherwise
extend the maturity date of any existing loan or credit commitment
(collectively, "Lend to") in an amount in excess of $1,000,000 or in
any amount which, when aggregated with any and all loans or credit c
ommitments of FSCM and its subsidiary to such person or entity,
would be equal to or in excess of $1,000,000; provided, however,
that FSCM or its subsidiary may make any such loan or credit
commitment in the event (A) FSCM or its
-40-
<PAGE> 46
subsidiary has delivered to MBI and Ameribanc or their designated
representative a notice of its intention to make such loan and such
information as MBI and Ameribanc or their designated representative may
reasonably require in respect thereof and (B) MBI and Ameribanc or
their designated representative shall not have reasonably objected to
such loan by giving written or facsimile notice of such objection
within two (2) business days following the delivery to MBI and
Ameribanc or their designated representative of the notice of intention
and information as aforesaid; provided further, however, that nothing
shall prohibit FSCM or its subsidiary from honoring any contractual
obligation in existence on the date of the Merger Agreement.
Notwithstanding the above, FSCM shall be authorized, without first
consulting with MBI and Ameribanc or obtaining MBI and Ameribanc's
prior written consent, to increase the aggregate amount of any credit
facilities theretofore established in favor of any person or entity
(each a "Pre-Existing Facility"), provided that the aggregate amount of
any and all such increases shall not be in excess of the lesser of ten
percent (10%) of such Pre-Existing Facilities or $250,000;
(8) directly or indirectly, including through its
officers, directors, employees or other representatives:
(i) initiate, solicit or encourage any discussions,
inquiries or proposals with any third party (other than MBI
or Ameribanc) relating to the disposition of any
significant portion of the business or assets of FSCM or
its subsidiary or the acquisition of the capital stock (or
rights or options exercisable for, or securities
convertible or exchangeable into, capital stock) of FSCM or
its subsidiary or the merger of FSCM or its subsidiary with
any person (other than MBI or Ameribanc) or any similar
transaction (each such transaction being referred to herein
as an "Acquisition Transaction"), or
(ii) provide any third party with information or
assistance or negotiate with any third party with respect
to an Acquisition Transaction, and FSCM shall promptly
notify MBI orally of all the relevant details relating to
all inquiries, indications of interest and proposals which
it or its subsidiary may receive with respect to any
Acquisition Transaction;
(9) take any action that would (i) materially impede or
delay the consummation of the transactions contemplated by the
Merger Agreement or the ability of MBI and Ameribanc or FSCM to
obtain any approval of any Regulatory Authority required for the
transactions contemplated by the Merger Agreement or to perform its
covenants and agreements under the Merger Agreement, (ii) prevent or
impede the Merger from qualifying as a reorganization within the
meaning of Section 368 of the Code or (iii) prevent the Merger from
qualifying for pooling-of-interests accounting treatment;
(10) other than in the ordinary course of business
consistent with past practice, incur any indebtedness for borrowed
money or assume, guarantee, endorse or otherwise as an accommodation
become responsible or liable for the obligations of any other
individual, corporation or other entity;
-41-
<PAGE> 47
(11) materially restructure or change its investment
securities portfolio, through purchases, sales or otherwise, or the
manner in which the portfolio is classified or reported, or execute
individual investment transactions for its own account of greater
than $2,000,000 for U.S. Treasury or Federal Agency Securities and
$250,000 for all other investment instruments;
(12) agree in writing or otherwise to take any of the
foregoing actions or engage in any activity, enter into any
transaction or knowingly take or omit to take any other action which
would make any of FSCM's representations and warranties in the
Merger Agreement untrue or incorrect in any material respect if made
anew after engaging in such activity, entering into such
transaction, or taking or omitting such other act; or
(13) enter into, increase or renew any loan or credit
commitment (including standby letters of credit) to any executive
officer or director of FSCM or any subsidiary of FSCM, any holder of
10% or more of the outstanding shares of FSCM Common Stock, or any
entity controlled, directly or indirectly, by any of the foregoing
or engage in any transaction with any of the foregoing which is of
the type or nature sought to be regulated in 12 U.S.C. Section 371c
and 12 U.S.C. Section 371c-1, without first obtaining the prior
written consent of MBI and Ameribanc, which consent shall not be
unreasonably withheld.
The Merger Agreement also provides that during the period from April
13, 1998 to the Effective Time, MBI and Ameribanc shall not, and shall not
permit any of their subsidiaries to, without the prior written consent of
FSCM, agree in writing or otherwise take any action that is prohibited of
FSCM by subsections (9) and (12) above.
ACCOUNTING TREATMENT
The Merger is intended to be accounted for under the
pooling-of-interests method of accounting. It is a condition to MBI's and
Ameribanc's consummation of the Merger, unless otherwise waived, that KPMG
Peat Marwick LLP, MBI's independent accountants, deliver to MBI and Ameribanc
a letter stating that the Merger will qualify for pooling-of-interests
accounting treatment.
-42-
<PAGE> 48
CERTAIN FEDERAL INCOME TAX CONSEQUENCES OF THE MERGER
-----------------------------------------------------
The following discussion is based upon an opinion of Thompson
Coburn, counsel to MBI ("Counsel"), and except as otherwise indicated,
reflects Counsel's opinion. The discussion is a general summary of the
material United States federal income tax ("federal income tax") consequences
of the Merger to certain FSCM stockholders and does not purport to be a
complete analysis or listing of all potential tax considerations or
consequences relevant to a decision whether to vote for the approval and
adoption of the Merger. The discussion does not address all aspects of
federal income taxation that may be applicable to FSCM stockholders in light
of their status or personal investment circumstances, nor does it address the
federal income tax consequences of the Merger that are applicable to FSCM
stockholders subject to special federal income tax treatment, including
(without limitation) foreign persons, insurance companies, tax-exempt
entities, retirement plans, dealers in securities, persons who acquired their
FSCM Common Stock pursuant to the exercise of employee stock options or
otherwise as compensation, and persons who hold their FSCM Common Stock as
part of a "straddle," "hedge" or "conversion transaction." Each
stockholder's individual circumstances may affect the tax consequences of the
Merger to such stockholder. In addition, the discussion does not address the
effect of any applicable state, local or foreign tax laws, or the effect of
any federal tax laws other than those pertaining to the federal income tax.
AS A RESULT, EACH FSCM STOCKHOLDER IS URGED TO CONSULT HIS OR HER OWN TAX
ADVISOR TO DETERMINE THE SPECIFIC TAX CONSEQUENCES OF THE MERGER TO SUCH
STOCKHOLDER. The discussion assumes that shares of FSCM Common Stock are
held as capital assets (within the meaning of Section 1221 of the Code) at
the Effective Time.
FSCM has received an opinion from Counsel to the effect that,
assuming the Merger occurs in accordance with the Merger Agreement, the
Merger will constitute a "reorganization" for federal income tax purposes
with the following federal income tax consequences:
(1) FSCM stockholders will recognize no gain or loss as a
result of the exchange of their FSCM Common Stock solely for shares
of MBI Common Stock pursuant to the Merger, except with respect to
cash received in lieu of fractional shares, if any, as discussed
below.
(2) The aggregate adjusted tax basis of the shares of MBI
Common Stock received by each FSCM stockholder in the Merger
(including any fractional share of MBI Common Stock deemed to be
received, as described in paragraph 4 below) will be equal to the
aggregate adjusted tax basis of the shares of FSCM Common Stock
surrendered.
(3) The holding period of the shares of MBI Common Stock
received by each FSCM stockholder in the Merger (including any
fractional share of MBI Common Stock deemed to be received, as
described in paragraph 4 below) will include the holding period of
the shares of FSCM Common Stock exchanged therefor.
(4) A FSCM stockholder who receives cash in the Merger in
lieu of a fractional share of MBI Common Stock will be treated as if
the fractional share had been received by such stockholder in the
Merger and then redeemed by MBI in return for the cash. The receipt
of such cash will cause the recipient to recognize capital gain or
loss equal to the difference between the amount of cash received and
the portion of such holder's adjusted tax basis in the shares of MBI
Common Stock allocable to the fractional share.
-43-
<PAGE> 49
Counsel's opinion is subject to the conditions and assumptions
stated therein and relies upon various representations made by MBI, FSCM and
certain stockholders of FSCM. If any of these representations or assumptions
is inaccurate, the tax consequences of the Merger could differ from those
described herein. Counsel's opinion also is based upon the Code, regulations
proposed or promulgated thereunder, judicial precedent relating thereto, and
current administrative rulings and practice, all of which are subject to
change. Any such change, which may or may not be retroactive, could alter
the tax consequences discussed herein. The opinion is available without
charge upon written request to Jon W. Bilstrom, General Counsel and
Secretary, Mercantile Bancorporation Inc., P.O. Box 524, St. Louis,
Missouri 63166-0524. The receipt of Counsel's opinion again as of the
Closing Date is a condition to the consummation of the Merger. An opinion of
counsel, unlike a private letter ruling from the Internal Revenue Service
(the "Service"), has no binding effect on the Service. The Service could
take a position contrary to Counsel's opinion and, if the matter were
litigated, a court may reach a decision contrary to the opinion. Neither MBI
nor FSCM has requested an advance ruling as to the federal income tax
consequences of the Merger, and the Service is not expected to issue such a
ruling.
THE FOREGOING IS A GENERAL DISCUSSION OF THE MATERIAL FEDERAL INCOME
TAX CONSEQUENCES OF THE MERGER TO CERTAIN FSCM STOCKHOLDERS AND IS INCLUDED
FOR GENERAL INFORMATION ONLY. THE FOREGOING DISCUSSION DOES NOT TAKE INTO
ACCOUNT THE PARTICULAR FACTS AND CIRCUMSTANCES OF EACH FSCM STOCKHOLDER'S TAX
STATUS AND ATTRIBUTES. AS A RESULT, THE FEDERAL INCOME TAX CONSEQUENCES
ADDRESSED IN THE FOREGOING DISCUSSION MAY NOT APPLY TO EACH FSCM STOCKHOLDER.
ACCORDINGLY, EACH FSCM STOCKHOLDER SHOULD CONSULT HIS OR HER OWN TAX ADVISOR
REGARDING THE SPECIFIC TAX CONSEQUENCES OF THE MERGER, INCLUDING THE
APPLICATION AND EFFECT OF FEDERAL, STATE, LOCAL AND OTHER TAX LAWS AND THE
POSSIBLE EFFECTS OF CHANGES IN FEDERAL AND OTHER TAX LAWS.
APPRAISAL RIGHTS OF STOCKHOLDERS OF FSCM
----------------------------------------
Each stockholder of FSCM has the right to demand the appraised value
of his or her shares of FSCM Common Stock in cash if the stockholder follows
the procedures set forth under Section 262 of the DCGL.
Under the DCGL, a stockholder of FSCM may demand an appraisal of the
fair value (as determined pursuant to Section 262 of the DCGL) of his or her
shares of FSCM Common Stock and payment of such fair value to the stockholder
in cash if the Merger is consummated. Ameribanc, as the surviving
corporation, will pay to such stockholder the fair value of such
stockholder's shares of FSCM Common Stock if such FSCM stockholder (a) files
with FSCM, prior to the vote at the Special Meeting, a written demand for an
appraisal of the fair value of his or her shares; (b) does not vote in favor
of the Merger; (c) continues to hold his or her shares through the Effective
Time; and (d) does not withdraw the demand for appraisal within a period of 60
---
days after the Closing Date. Such demand shall be sufficient if it
reasonably informs FSCM of the identity of the stockholder and that the
stockholder intends thereby to demand an appraisal of his or her shares. A
VOTE AGAINST THE APPROVAL AND ADOPTION OF THE MERGER AGREEMENT WILL NOT, BY
ITSELF, BE REGARDED AS A WRITTEN OBJECTION FOR PURPOSES OF ASSERTING
APPRAISAL RIGHTS. A VOTE
-44-
<PAGE> 50
IN FAVOR OF THE APPROVAL AND ADOPTION OF THE MERGER AGREEMENT WILL CONSTITUTE A
WAIVER OF A STOCKHOLDER'S APPRAISAL RIGHTS.
All written demands for appraisal should be addressed to: Financial
Services Corporation of the Midwest, P.O. Box 4870, Rock Island, Illinois
61204-4870, Attention: Patricia A. Zimmer, before the taking of the vote
concerning the Merger Agreement at the Special Meeting, and should be
executed by, or on behalf of, the holder of record.
To be effective, a demand for appraisal must be executed by or for
the stockholder of record who held such shares on the date of making such
demand, and who continuously holds such shares through the Effective Time,
fully and correctly, as such stockholder's name appears on his or her stock
certificate(s) and cannot be made by the beneficial owner if he or she does
not also hold the shares of record. The beneficial holder must, in such
case, have the registered owner submit the required demand in respect of such
shares.
If FSCM Common Stock is owned of record in a fiduciary capacity, as
by a trustee, guardian or custodian, execution of a demand for appraisal
should be made in such capacity. If FSCM Common Stock is owned of record by
more than one person, as in a joint tenancy or tenancy in common, such demand
must be executed by or for all joint owners. An authorized agent, including
one or two or more joint owners, may execute the demand for appraisal for a
stockholder of record; however, the agent must identify the record owner or
owners and expressly disclose the fact that, in executing the demand, he or
she is acting as agent for the record owner. A record owner, such as a
broker, who holds FSCM Common Stock as nominee for others may exercise his or
her right of appraisal with respect to the shares held for one or more
beneficial owners, while not exercising such right for other beneficial
owners. In such case, the written demand should set forth the number of
shares as to which the record owner dissents. Where no number of shares is
expressly mentioned, the demand will be presumed to cover all shares of FSCM
Common Stock in the name of such record owner.
If at any time within the 60-day period after the Effective Time, a
stockholder of FSCM withdraws his or her demand for appraisal, then he or she
will be deemed to have accepted the terms offered pursuant to the Merger.
After the 60-day withdrawal period, a FSCM stockholder may withdraw only with
the consent of Ameribanc and the approval of the Delaware Court of Chancery.
Within 10 days after the Effective Time, Ameribanc (as the surviving
corporation in the Merger) must give written notice that the Merger has
become effective to each stockholder who so filed a written demand for
appraisal and who did not vote in favor of the Merger Agreement. Within 120
days after the Effective Time, any stockholder of FSCM who has validly
perfected appraisal rights shall be entitled, upon written request, to
receive from Ameribanc a statement setting forth the aggregate number of
shares of FSCM Common Stock not voted in favor of the Merger with respect to
which demands for appraisal have been received and the aggregate number of
holders of such shares. Ameribanc shall respond to such request within 10
days after receipt or within 10 days after the date of the Special Meeting,
whichever is later. Within 120 days after the Effective Time, Ameribanc or
any such stockholder seeking appraisal may file a petition in the Delaware
Court of Chancery demanding a determination of the value of the FSCM Common
Stock held by all stockholders seeking appraisal. The DCGL contemplates a
single proceeding in the Delaware Court of Chancery that will apply to all
stockholders of FSCM who have perfected their appraisal rights, whether or
not such stockholders have individually filed a petition seeking appraisal
with the Court of Chancery. If neither Ameribanc nor any of the stockholders
of FSCM who have perfected their appraisal rights have filed a petition in
the Court of Chancery within the 120-day period following the Effective Time,
such appraisal rights will be waived, and the stockholders will be entitled
-45-
<PAGE> 51
to receive, upon surrender of the certificates evidencing their shares of
FSCM Common Stock, the right to receive 6.8573 shares of MBI Common Stock,
subject to the adjustments as provided in the Merger Agreement. Ameribanc
has no present intention to file such a petition with the Delaware Court of
Chancery.
If a petition for appraisal is filed by a stockholder, a copy of the
petition shall be served on Ameribanc, which then will have 20 days after
such service to file with the Register of the Delaware Court of Chancery a
verified list of FSCM stockholders who have perfected appraisal rights but
have not yet reached agreement as to value with Ameribanc. If the petition
is filed by Ameribanc, such verified list must accompany the filing. The
Register, if so ordered by the Court, will give notice of the time and place
fixed for hearing of the petition, by registered or certified mail, to
Ameribanc and each stockholder named on the verified list. Such notice shall
also be published at least one week prior to the hearing in one or more
newspapers of general circulation in Wilmington, Delaware and in such other
publications as directed by the Court.
The Court of Chancery shall conduct a hearing on the petition for
appraisal at which the Court will determine the stockholders of FSCM who have
properly perfected appraisal rights with respect to their shares and may
require such stockholders to submit the certificates evidencing their FSCM
Common Stock to the Register of the Court for notation of the pendency of the
appraisal proceeding thereon. Failure to comply with such direction may
result in dismissal of the proceeding as to such non-complying stockholder.
After determining the stockholders entitled to appraisal, the Court of
Chancery, after taking into account all relevant factors, will appraise the
shares, determining their fair value exclusive of any element of value
arising from the accomplishment or expectation of the Merger, together with a
fair rate of interest, if any, to be paid upon the amount determined to be
the fair value. Upon application of either MBI or any of the stockholders
entitled to appraisal, the Court may permit discovery or other pretrial
proceedings and may proceed to trial prior to a final determination of the
stockholders entitled to appraisal. Any stockholder whose name appears on
the verified list submitted by Ameribanc may participate in the appraisal
proceedings until it is finally determined by the Court that such stockholder
is not entitled to appraisal rights. The judgment shall be payable only upon
and simultaneously with the surrender to Ameribanc of the certificate(s)
representing such shares of FSCM Common Stock. Upon payment of the judgment,
the stockholder who sought appraisal shall cease to have any interest in such
shares or in FSCM and will have no right to receive dividends in such stock
or exercise other rights of stock ownership.
Section 262 provides fair value is to be "exclusive of any element
of value arising from the accomplishment or expectation of the merger." The
Delaware Supreme Court has construed Section 262 to mean that "elements of
future value, including the nature of the enterprise, which are known or
susceptible of proof as of the date of the merger and are not the product of
speculation, may be considered." Stockholders who are considering seeking an
appraisal should bear in mind that the fair value of their shares of FSCM
Common Stock determined under Section 262 could be more than, the same as or
less than the consideration they are to receive pursuant to the Merger
Agreement if they do not seek appraisal of their shares of FSCM Common Stock,
and that an opinion of an investment banking firm as to fairness is not an
opinion as to fair value under Section 262.
Costs of the appraisal proceeding may be assessed against the
parties thereto (i.e., Ameribanc and the stockholders participating in the
appraisal proceeding) by the court as the court deems equitable in the
circumstances. Upon the application of any stockholder, the court may
determine the amount of interest, if any, to be paid upon the value of the
stock of stockholders entitled thereto.
-46-
<PAGE> 52
Upon application of a stockholder, the court may order all or a portion of the
expenses incurred by any stockholder in connection with the appraisal
proceeding, including, without limitation, reasonable attorneys' fees and the
fees and expenses of experts, to be charged pro rata against the value of all
shares entitled to appraisal. Any stockholder who has demanded appraisal rights
will not, after the Effective Time, be entitled to vote the stock subject to
such demand for any purpose or to receive payment of dividends or any other
distribution with respect to such shares (other than dividends or distributions,
if any, payable to holders of record as of a record date prior to the Effective
Time) or to receive the payment of the consideration provided for in the Merger
Agreement. However, if no petition for an appraisal is filed within 120 days
after the Effective Time or if such stockholder delivers to Ameribanc a
written withdrawal of his demand for an appraisal and an acceptance of the
Merger, either within 60 days after the Effective Time or thereafter with the
written approval of Ameribanc, then the right of such stockholder to an
appraisal will cease. Notwithstanding the foregoing, no appraisal proceeding
in the Court of Chancery will be dismissed as to any stockholder without the
approval of the court, and such approval may be conditioned upon such terms
as the court deems just.
FAILURE TO COMPLY STRICTLY WITH THESE PROCEDURES WILL CAUSE THE
STOCKHOLDER TO LOSE HIS OR HER APPRAISAL RIGHTS. CONSEQUENTLY, ANY
STOCKHOLDER WHO DESIRES TO EXERCISE HIS OR HER APPRAISAL RIGHTS IS URGED TO
CONSULT A LEGAL ADVISOR BEFORE ATTEMPTING TO EXERCISE SUCH RIGHTS.
THE PRECEDING DISCUSSION IS A SUMMARY OF THE PROVISIONS REGARDING
APPRAISAL RIGHTS UNDER THE DELAWARE GENERAL CORPORATION LAW AND IS QUALIFIED
IN ITS ENTIRETY BY THE TEXT OF SECTION 262 OF THE DELAWARE GENERAL
CORPORATION LAW WHICH IS ATTACHED HERETO AS ANNEX B.
-------
FSCM STOCKHOLDERS WHO ARE INTERESTED IN PERFECTING APPRAISAL RIGHTS
PURSUANT TO THE DELAWARE GENERAL CORPORATION LAW IN CONNECTION WITH THE
MERGER SHOULD CONSULT WITH THEIR COUNSEL FOR ADVICE AS TO THE PROCEDURES
REQUIRED TO BE FOLLOWED.
PRO FORMA FINANCIAL INFORMATION
-------------------------------
COMPARATIVE UNAUDITED PER SHARE DATA
The following table sets forth for the periods indicated selected
historical per share data of MBI and FSCM and the corresponding pro forma and
pro forma equivalent per share amounts giving effect to the proposed Merger
and the acquisition of Roosevelt. The data presented is based upon the
consolidated financial statements and related notes of MBI and FSCM included
in documents incorporated herein by reference, and the pro forma combined
consolidated balance sheet and income statements, including the notes
thereto, appearing elsewhere herein. This information should be read in
conjunction with such historical and pro forma financial statements and
related notes thereto. The assumptions used in the preparation of this table
appear in the notes to the pro forma financial information appearing
elsewhere in this Proxy Statement/Prospectus. This data is not necessarily
indicative of the results of the future operations of the combined
organization or the actual results that
-47-
<PAGE> 53
would have occurred if the proposed Merger or the acquisition of Roosevelt had
been consummated prior to the periods indicated.
<TABLE>
<CAPTION>
MBI/ MBI/ MBI/
FSCM FSCM MBI/ALL ENTITIES ALL ENTITIES
MBI FSCM PRO FORMA PRO FORMA PRO FORMA PRO FORMA
REPORTED REPORTED<F1> COMBINED<F2> EQUIVALENT<F3> COMBINED<F4> EQUIVALENT<F3>
-------- ------------ ------------ -------------- ------------ --------------
<S> <C> <C> <C> <C> <C> <C>
Book Value per Share:
March 31, 1998<F5> $ 18.65 $112.81 $ 18.52 $127.00 $ 18.58 $127.41
December 31, 1997 18.47 112.81 18.37 125.97 17.58 120.55
Cash Dividends Declared per Share:
Three Months ended March 31, 1998 $ .310 $ .625 $ .310 $ 2.13 $ .31 $ 2.13
Year ended December 31, 1997 1.148 2.375 1.148 7.87 1.148 7.87
Year ended December 31, 1996 1.092 2.000 1.092 7.49 1.092 7.49
Year ended December 31, 1995 .880 1.760 .880 6.03 .88 6.03
Basic Earnings per Share:
Three Months ended March 31, 1998 $ .78 $ 5.48 $ .78 $ 5.35 $ .76 $ 5.21
Year ended December 31, 1997 1.68 24.92 1.70 11.66 1.49 10.22
Year ended December 31, 1996 2.11 20.73 2.12 14.54 2.13 14.61
Year ended December 31, 1995 2.41 16.87 2.42 16.59 2.37 16.25
Diluted Earnings per Share:
Three Months Ended March 31, 1998 $ .77 $ 5.11 $ .77 $ 5.28 $ .75 $ 5.14
Year ended December 31, 1997 1.65 18.23 1.66 11.38 1.45 9.94
Year ended December 31, 1996 2.08 13.18 2.07 14.19 2.09 14.33
Year ended December 31, 1995 2.37 10.80 2.35 16.11 2.31 15.84
Market Price per Share:
At April 9, 1998<F6> $55.375 $120.00 $55.375 $379.72 $55.375 $379.72
At June 9, 1998<F6> 51.500 120.00 51.500 353.15 51.500 353.15
<FN>
- --------------------
<F1> FSCM has a March 31 fiscal year-end. For purposes of this table, FSCM
information at or for the fiscal year ended March 31 is reported as
year ended December 31 data. FSCM information at or for the three
months ended March 31, 1998 is reported as three months ended March 31,
1998 data.
<F2> Includes the effect of pro forma adjustments for FSCM, as appropriate.
See "PRO FORMA FINANCIAL INFORMATION - Notes to Pro Forma Combined
Consolidated Financial Statements."
<F3> Based on the pro forma combined per share amounts multiplied by 6.8573,
the Exchange Ratio applicable to one share of FSCM Common Stock in the
Merger. Further explanation of the assumptions used in the preparation
of the pro forma combined consolidated financial statements is included
in the notes to pro forma combined consolidated financial statements.
See "PRO FORMA FINANCIAL INFORMATION - Notes to Pro Forma Combined
Consolidated Financial Statements."
<F4> Includes the effect of pro forma adjustments for FSCM, CBT, Firstbank,
First Financial and Roosevelt, as appropriate. Due to the
immateriality of the financial condition and results of operations of
Horizon and HomeCorp to that of MBI, this table does not include the
effect of pro forma adjustments for Horizon and HomeCorp. See "PRO
FORMA FINANCIAL INFORMATION - Notes to Pro Forma Combined Consolidated
Financial Statements."
<F5> Based upon the following number of shares outstanding as of
March 31, 1998:
<S> <C>
Shares of MBI Common Stock as reported 133,115,227
Number of Shares of MBI Common Stock, net of treasury
shares, to be issued in the mergers of:
FSCM 1,877,324
CBT 4,961,910
First Financial 2,875,360
Firstbank 12,511,135
-----------
MBI/All Entities Pro Forma Combined 155,340,956
===========
<FN>
<F6> The market value of MBI Common Stock disclosed as of April 9, 1998, the
last trading day preceding the public announcement of the Merger, and
as of June 9, 1998, the last practicable date prior to the filing of
the Registration Statement, is based on the last sale price as reported
on the NYSE Composite Tape. The market value of FSCM Common Stock
disclosed as of April 9, 1998, the last trading day preceding the
public announcement of the Merger, and as of June 9, 1998, the last
practicable date prior to the filing of the Registration Statement, is
based on independent stock appraisals for transactions involving
minority interests in FSCM Common Stock.
</TABLE>
-48-
<PAGE> 54
PRO FORMA COMBINED CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
RECENT ACQUISITIONS. MBI has completed or announced a number of
acquisitions during the years covered by the pro forma financial statements
that follow. Set forth below is a table that summarizes such completed and
pending acquisitions, including the name of the acquired entity, the date of
consummation of the acquisition, the assets and deposits of the acquired
entities at the date of consummation for the completed acquisitions, the
consideration paid in cash and/or shares of MBI Common Stock and the
accounting method utilized.
<TABLE>
ACQUISITIONS COMPLETED BY MBI (1995-PRESENT)
<CAPTION>
CONSIDERATION
--------------------
GROSS NUMBER ACCOUNTING
NAME DATE ASSETS DEPOSITS CASH OF SHARES METHOD
- ---- ---- ------ -------- ---- --------- -------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C>
HomeCorp, Inc. Mar. 2, 1998 $ 335,137 $ 309,157 $ 14 854,760 Pooling<F1>
Horizon Bancorp, Inc. Feb. 2, 1998 536,507 454,230 2 2,549,970 Pooling<F1>
Roosevelt Financial Group, Inc. July 1, 1997 7,251,985 5,317,514 374,477 18,948,884 Purchase
Mark Twain Bancshares, Inc. Apr. 25, 1997 3,227,972 2,519,474 73 24,088,713 Pooling
Regional Bancshares, Inc. Mar. 5, 1997 171,979 135,954 12,300 900,625 Purchase
TODAY'S Bancorp, Inc. Nov. 7, 1996 501,418 432,104 34,912 1,690,587 Purchase
First Financial Corporation of America Nov. 1, 1996 87,649 76,791 3,253 388,113 Purchase
Peoples State Bank Aug. 22, 1996 95,657 75,149 -- 488,756 Purchase
Metro Savings Bank, F.S.B. Mar. 7, 1996 80,857 73,843 5 296,853 Purchase
Security Bank of Conway, F.S.B. Feb. 9, 1996 102,502 89,697 1 482,946 Purchase
Hawkeye Bancorporation Jan. 2, 1996 1,978,540 1,739,811 80 11,838,294 Pooling
First Sterling Bancorp, Inc. Jan. 2, 1996 167,610 147,588 1 782,126 Pooling<F1>
Southwest Bancshares, Inc. Aug. 1, 1995 187,701 155,628 1 1,012,463 Pooling<F1>
AmeriFirst Bancorporation, Inc. Aug. 1, 1995 155,521 130,179 1 992,034 Pooling<F1>
Plains Spirit Financial Corporation July 7, 1995 400,754 276,887 6,697 1,951,770 Purchase
TCBankshares, Inc. May 1, 1995 1,422,798 1,217,740 -- 7,124,999<F2> Pooling
Central Mortgage Bancshares, Inc. May 1, 1995 654,584 571,105 8 3,806,585 Pooling
UNSL Financial Corp. Jan. 3, 1995 508,346 380,716 11 2,367,161 Pooling
Wedge Bank Jan. 3, 1995 195,716 152,865 1 1,454,931 Pooling<F1>
<CAPTION>
PENDING ACQUISITIONS BY MBI
<S> <C> <C> <C> <C> <C> <C>
Financial Services Corporation
of the Midwest. 3rd Qtr. 1998 $ 518,046 $ 408,995 -- 2,077,000<F3> Pooling
CBT Corporation. 3rd Qtr. 1998 1,030,998 714,686 -- 5,398,785<F3> Pooling
Firstbank of Illinois Co. 3rd Qtr. 1998 2,283,670 2,000,539 -- 13,786,135<F3> Pooling
First Financial Bancorporation 3rd Qtr. 1998 568,442 480,461 -- 3,194,844<F3> Pooling
<FN>
- --------------------
<F1> The historical financial statements of MBI were not restated for the
acquisition due to the immateriality of the acquiree's financial
condition and results of operations to those of MBI.
<F2> In addition to MBI Common Stock issued, MBI assumed, through an
exchange, the outstanding, non-convertible preferred stock of
TCBankshares, Inc. Such preferred stock was redeemed in the first
quarter of 1996.
<F3> Estimated number of shares to be issued in acquisition.
</TABLE>
-49-
<PAGE> 55
PRO FORMA FINANCIAL STATEMENTS. The following unaudited pro forma
combined consolidated balance sheet gives effect to the Merger as if it were
consummated on March 31, 1998.
The pro forma combined consolidated income statements for the three
months ended March 31, 1998 and 1997 and for the years ended December 31,
1997, 1996 and 1995 set forth the results of operations of MBI combined with
the results of operations of FSCM, CBT, First Financial and Firstbank as if
the respective mergers had occurred as of the first day of the period
presented. Due to the immateriality of the results of operations of Horizon
and HomeCorp to that of MBI, individually and in the aggregate, the unaudited
pro forma combined consolidated financial statements contained herein do not
reflect the completed acquisitions of Horizon and HomeCorp for any period
prior to the acquisition date of such entities.
MBI acquired Roosevelt on July 1, 1997, which acquisition was
accounted for under the purchase method of accounting. Accordingly, the
historical results of operations of MBI include the results of operations of
Roosevelt from July 1, 1997 forward. Consistent with the Commission's rules
regarding the treatment of acquisitions accounted for as purchases in pro
forma presentations, the pro forma combined consolidated income statements
for the three months ended March 31, 1998 and March 31, 1997 and the year
ended December 31, 1997 include the results of operations of Roosevelt but
the pro forma combined consolidated income statements for the years ended
December 31, 1996 and 1995 do not.
The unaudited pro forma combined consolidated financial statements
should be read in conjunction with the accompanying Notes to the Pro Forma
Combined Consolidated Financial Statements and with the historical financial
statements of MBI and FSCM. These pro forma combined consolidated financial
statements may not be indicative of the results of operations that actually
would have occurred if the completed and proposed acquisitions had been
consummated on the dates assumed above or of the results of operations that
may be achieved in the future.
-50-
<PAGE> 56
<TABLE>
MERCANTILE BANCORPORATION INC.
PRO FORMA COMBINED CONSOLIDATED BALANCE SHEET
MARCH 31, 1998
(THOUSANDS)
(UNAUDITED)
<CAPTION>
MBI/FSCM
PRO FORMA CBT/
FSCM COMBINED FIRST
MBI<F1> FSCM ADJUSTMENTS CONSOLIDATED FINANCIAL FIRSTBANK
------- ---- ----------- ------------ --------- ---------
<S> <C> <C> <C> <C> <C> <C>
ASSETS
Cash and due from banks $ 1,193,064 $ 24,786 $(11,057)<F3> $ 1,199,668 $ 61,802 $ 96,021
(7,125)<F6>
Due from banks - interest bearing 269,342 11,759 281,101 0 1,782
Federal funds sold and repurchase
agreements 258,295 9,900 268,195 59,530 19,250
Investments in debt and equity
securities:
Trading 125,634 0 125,634 0 46
Available-for-sale 8,027,916 102,026 8,129,942 292,922 627,548
Held-to-maturity 224,125 33,646 257,771 59,157 24,404
----------- -------- -------- ----------- ---------- ----------
Total 8,377,675 135,672 0 8,513,347 352,079 651,998
Loans and leases 19,625,022 326,490 19,951,512 1,069,377 1,425,133
Reserve for possible loan losses (263,511) (6,958) (2,000)<F6> (272,469) (14,270) (20,285)
----------- -------- -------- ----------- ---------- ----------
Net Loans and Leases 19,361,511 319,532 (2,000) 19,679,043 1,055,107 1,404,848
Intangible assets 792,626 0 792,626 8,372 24,270
Other assets 1,549,209 16,397 34,381 <F4> 1,565,606 62,550 85,501
(34,381)<F5>
----------- -------- -------- ----------- ---------- ----------
Total Assets $31,801,722 $518,046 $(20,182) $32,299,586 $1,599,440 $2,283,670
=========== ======== ======== =========== ========== ==========
LIABILITIES
Deposits:
Non-interest bearing $ 3,487,875 $ 45,007 $ 3,532,882 $ 139,117 $ 288,895
Interest bearing 18,576,440 363,988 18,940,428 1,056,030 1,711,644
Foreign 463,426 0 463,426 0 0
----------- -------- -------- ----------- ---------- ----------
Total Deposits 22,527,741 408,995 0 22,936,736 1,195,147 2,000,539
Short-term borrowings 3,596,915 43,708 3,640,623 163,208 18,604
Bank notes 25,000 0 25,000 0 0
Long-term debt 2,193,061 25,000 2,218,061 41,922 0
Company-obligated mandatorily
redeemable preferred securities
of Mercantile Capital Trust I 150,000 0 150,000 0 0
Other liabilities 825,839 5,962 (3,285)<F6> 828,516 16,865 26,038
----------- -------- -------- ----------- ---------- ----------
Total Liabilities 29,318,556 483,665 (3,285) 29,798,936 1,417,142 2,045,181
<CAPTION>
COLONIAL
CBT/FIRST BANK AND ALL ENTITIES
FINANCIAL/ DUCHESNE PRO FORMA
FIRSTBANK BANK COMBINED
ADJUSTMENTS DIVESTITURES<F14> CONSOLIDATED
----------- ----------------- ------------
<S> <C> <C> <C>
ASSETS
Cash and due from banks $ (57,300)<F6> $ 45,916 $ 1,329,234
(16,873)<F9>
Due from banks - interest bearing (197) 282,686
Federal funds sold and repurchase
agreements (11,875) 335,100
Investments in debt and equity
securities:
Trading 0 125,680
Available-for-sale (69,551) 8,980,861
Held-to-maturity (4,051) 337,281
--------- --------- -----------
Total 0 (73,602) 9,443,822
Loans and leases (221,552) 22,224,470
Reserve for possible loan losses (11,600)<F6> 3,094 (315,530)
--------- --------- -----------
Net Loans and Leases (11,600) (218,458) 21,908,940
Intangible assets 0 825,268
Other assets 122,031 <F7> (8,883) 1,704,774
(122,031)<F8>
60,267 <F10>
(60,267)<F11>
238,489 <F12>
(238,489)<F13>
--------- --------- -----------
Total Assets $ (85,773) $(267,099) $35,829,824
========= ========= ===========
LIABILITIES
Deposits:
Non-interest bearing $ (54,857) $ 3,906,037
Interest bearing (247,581) 21,460,521
Foreign 0 463,426
--------- --------- -----------
Total Deposits 0 (302,438) 25,829,984
Short-term borrowings (1,119) 3,821,316
Bank notes 0 25,000
Long-term debt 0 2,259,983
Company-obligated mandatorily redeemable
preferred securities of Mercantile
Capital Trust I 0 150,000
Other liabilities (24,804)<F6> 11,458 858,073
--------- --------- -----------
Total Liabilities (24,804) (292,099) 32,944,356
</TABLE>
-51-
<PAGE> 57
<TABLE>
MERCANTILE BANCORPORATION INC.
PRO FORMA COMBINED CONSOLIDATED BALANCE SHEET
MARCH 31, 1998 (CONTINUED)
(THOUSANDS)
(UNAUDITED)
<CAPTION>
MBI/FSCM
PRO FORMA CBT/
FSCM COMBINED FIRST
MBI<F1> FSCM ADJUSTMENTS CONSOLIDATED FINANCIAL FIRSTBANK
------- ---- ----------- ------------ --------- ---------
<S> <C> <C> <C> <C> <C> <C>
SHAREHOLDERS' EQUITY
Preferred stock 0 5,000 (5,000)<F5> 0 0 0
Common stock 1,351 170 19 <F4> 1,370 8,542 15,941
(170)<F5>
Capital surplus 986,393 2,598 (5,959)<F4> 980,434 19,705 42,976
(2,598)<F5>
Retained earnings 1,592,681 29,264 29,264 <F4> 1,616,105 154,051 179,572
(29,264)<F5>
(5,840)<F6>
Treasury stock (97,259) (2,651) (11,057)<F3> (97,259) 0 0
11,057 <F4>
2,651 <F5>
----------- -------- -------- ----------- ---------- ----------
Total Shareholders' Equity 2,483,166 34,381 (16,897) 2,500,650 182,298 238,489
----------- -------- -------- ----------- ---------- ----------
Total Liabilities and
Shareholders' Equity $31,801,722 $518,046 $(20,182) $32,299,586 $1,599,440 $2,283,670
=========== ======== ======== =========== ========== ==========
<CAPTION>
COLONIAL
CBT/FIRST BANK AND ALL ENTITIES
FINANCIAL/ DUCHESNE PRO FORMA
FIRSTBANK BANK COMBINED
ADJUSTMENTS DIVESTITURES<F14> CONSOLIDATED
----------- ----------------- -------------
<S> <C> <C> <C>
Preferred stock 0 0 0
Common stock 50 <F7> 1,574
(4,100)<F8>
29 <F10>
(4,442)<F11>
125 <F12>
(15,941)<F13>
Capital surplus (2,925)<F7> 25,000 988,088
(16,070)<F8>
(8,825)<F10>
(3,635)<F11>
(5,596)<F12>
(42,976)<F13>
Retained earnings (44,096)<F6> 1,905,632
101,861 <F7>
(101,861)<F8>
52,190 <F10>
(52,190)<F11>
179,572 <F12>
(179,572)<F13>
Treasury stock 23,045 <F7> (9,826)
(16,873)<F7>
16,873 <F7>
64,388 <F7>
--------- --------- -----------
Total Shareholders' Equity (60,969) 25,000 2,885,468
--------- --------- -----------
Total Liabilities and Shareholders' Equity $ (85,773) $(267,099) $35,829,824
========= ========= ===========
See Notes to Pro Forma Combined Consolidated Financial Statements.
</TABLE>
-52-
<PAGE> 58
<TABLE>
MERCANTILE BANCORPORATION INC.
PRO FORMA COMBINED CONSOLIDATED INCOME STATEMENT
FOR THE THREE MONTHS ENDED MARCH 31, 1998
(THOUSANDS, EXCEPT PER SHARE DATA)
(UNAUDITED)
<CAPTION>
MBI/FSCM
PRO FORMA CBT/
FSCM COMBINED FIRST
MBI<F1> FSCM ADJUSTMENTS CONSOLIDATED FINANCIAL FIRSTBANK
------- ---- ----------- ------------ --------- ---------
<S> <C> <C> <C> <C> <C> <C>
Interest Income $530,331 $10,148 $(138)<F15> $540,341 $31,181 $41,598
Interest Expense 290,026 5,381 295,407 15,253 19,527
-------- ------- ----- -------- ------- -------
Net Interest Income 240,305 4,767 (138) 244,934 15,928 22,071
Provision for Possible Loan Losses 6,606 750 7,356 1,269 762
-------- ------- ----- -------- ------- -------
Net Interest Income after Provision
for Possible Loan Losses 233,699 4,017 (138) 237,578 14,659 21,309
Other Income
Trust 25,886 156 26,042 1,241 1,513
Service charges 25,576 720 26,296 1,343 1,945
Credit card fees 3,284 0 3,284 0 0
Securities gains 4,263 47 4,310 273 71
Other 68,184 463 68,647 2,533 3,249
------- ----- -------- ------- -------
Total Other Income 127,193 1,386 0 128,579 5,390 6,778
Other Expense
Salaries and employee benefits 111,575 1,595 113,170 6,484 9,133
Net occupancy and equipment 33,655 564 34,219 1,266 2,606
Other 51,634 910 52,544 4,846 4,187
-------- ------- ----- -------- ------- -------
Total Other Expense 196,864 3,069 0 199,933 12,596 15,926
-------- ------- ----- -------- ------- -------
Income Before Income Taxes 164,028 2,334 (138) 166,224 7,453 12,161
Income Taxes 60,136 792 (50)<F16> 60,878 2,518 4,395
-------- ------- ----- -------- ------- -------
Net Income $103,892 $ 1,542 $ (88) $105,346 $ 4,935 $ 7,766
======== ======= ===== ======== ======= =======
Per Share Data<F29>:
Basic Earnings per Share $ 0.78 $ .78
Diluted Earnings per Share 0.77 .77
<CAPTION>
FIRSTBANK/ MBI/ALL ENTITIES
CBT/ PRO FORMA
FIRST FINANCIAL COMBINED
ADJUSTMENTS CONSOLIDATED
----------- ------------
<S> <C> <C>
Interest Income $ (288)<F17> $611,817
(211)<F19>
(804)<F21>
Interest Expense 330,187
------- --------
Net Interest Income (1,303) 281,630
Provision for Possible Loan Losses 9,387
------- --------
Net Interest Income after Provision
for Possible Loan Losses (1,303) 272,243
Other Income
Trust 28,796
Service charges 29,584
Credit card fees 3,284
Securities gains 4,654
Other 74,429
------- --------
Total Other Income 0 140,747
Other Expense
Salaries and employee benefits 128,787
Net occupancy and equipment 38,091
Other 61,577
------- --------
Total Other Expense 228,455
------- --------
Income Before Income Taxes (1,303) 184,535
Income Taxes (104)<F18> 67,321
(76)<F20>
(290)<F22>
------- --------
Net Income $ (833) $117,214
======= ========
Per Share Data<F29>:
Basic Earnings per Share $ .76
Diluted Earnings per Share .75
See Notes to Pro Forma Combined Consolidated Financial Statements.
</TABLE>
-53-
<PAGE> 59
<TABLE>
MERCANTILE BANCORPORATION INC.
PRO FORMA COMBINED CONSOLIDATED INCOME STATEMENT
FOR THE THREE MONTHS ENDED MARCH 31, 1997
(THOUSANDS, EXCEPT PER SHARE DATA)
(UNAUDITED)
<CAPTION>
MBI/FSCM
PRO FORMA CBT/
FSCM COMBINED FIRST
MBI<F1> FSCM ADJUSTMENTS CONSOLIDATED FINANCIAL FIRSTBANK
------- ---- ----------- ------------ --------- ---------
<S> <C> <C> <C> <C> <C> <C>
Interest Income $398,462 $8,929 $(138)<F15> $407,253 $28,237 $36,611
Interest Expense 186,501 4,625 0 191,126 13,645 16,317
-------- ------ ----- -------- ------- -------
Net Interest Income 211,961 4,304 (138) 216,127 14,592 20,294
Provision for Possible Loan Losses 18,443 630 0 19,073 1,107 717
-------- ------ ----- -------- ------- -------
Net Interest Income after Provision
for Possible Loan Losses 193,518 3,674 (138) 197,054 13,485 19,577
Other Income
Trust 22,801 125 22,926 1,105 1,156
Service charges 22,798 659 23,457 1,281 1,611
Credit card fees 5,399 0 5,399 0 0
Net gain from financial instruments 0 0 0 0 0
Securities gains (losses) 1,049 0 1,049 44 (4)
Other 36,053 157 36,210 1,891 2,676
-------- ------ ----- -------- ------- -------
Total Other Income 88,100 941 0 89,041 4,321 5,439
Other Expense
Salaries and employee benefits 97,722 1,365 99,087 5,872 7,973
Net occupancy and equipment 26,528 461 26,989 1,560 2,439
Other 41,345 724 42,069 3,732 3,478
-------- ------ ----- -------- ------- -------
Total Other Expense 165,595 2,550 168,145 11,164 13,890
-------- ------ ----- -------- ------- -------
Income Before Income Taxes 116,023 2,065 (138) 117,950 6,642 11,126
Income Taxes 41,028 740 (50)<F16> 41,718 1,964 3,941
-------- ------ ----- -------- ------- -------
Net Income $ 74,995 $1,325 $ (88) $ 76,232 $ 4,678 $ 7,185
======== ====== ===== ======== ======= =======
Per Share Data<F29>:
Basic Earnings per Share $ .65 $ .66
Diluted Earnings per Share .64 .64
<CAPTION>
ROOSEVELT/ MBI/ALL ENTITIES
FIRSTBANK/CBT/ PRO FORMA
FIRST FINANCIAL COMBINED
ROOSEVELT ADJUSTMENTS<F23> CONSOLIDATED
--------- ---------------- ------------
<S> <C> <C> <C>
Interest Income $140,012 $ (288)<F17> $610,810
(211)<F19>
(804)<F21>
Interest Expense 90,590 858 <F24> 321,380
8,844 <F25>
-------- -------- --------
Net Interest Income 49,422 (11,005) 289,430
Provision for Possible Loan Losses 640 21,537
-------- -------- --------
Net Interest Income after Provision
for Possible Loan Losses 48,782 (11,005) 267,893
Other Income
Trust 0 25,187
Service charges 5,979 32,328
Credit card fees 0 5,399
Net gain from financial instruments 392 392
Securities gains (losses) 0 1,089
Other 5,981 46,758
-------- -------- --------
Total Other Income 12,352 0 111,153
Other Expense
Salaries and employee benefits 11,160 124,092
Net occupancy and equipment 4,811 35,799
Other 9,467 10,135 <F26> 68,881
-------- -------- --------
Total Other Expense 25,438 10,135 228,772
-------- -------- --------
Income Before Income Taxes 35,696 (21,140) 150,274
Income Taxes 13,605 (104)<F18> 57,266
(76)<F20>
(290)<F22>
(3,492)<F27>
-------- -------- --------
Net Income $ 22,091 $(17,178) $ 93,008
======== ======== ========
Per Share Data<F29>:
Basic Earnings per Share $ .60
Diluted Earnings per Share .59
See Notes to Pro Forma Combined Consolidated Financial Statements
</TABLE>
-54-
<PAGE> 60
<TABLE>
MERCANTILE BANCORPORATION INC.
PRO FORMA COMBINED CONSOLIDATED INCOME STATEMENT
FOR THE YEAR ENDED DECEMBER 31, 1997
(THOUSANDS, EXCEPT PER SHARE DATA)
(UNAUDITED)
<CAPTION>
MBI/FSCM
PRO FORMA CBT/
FSCM COMBINED FIRST
MBI<F1> FSCM<F2> ADJUSTMENTS CONSOLIDATED FINANCIAL FIRSTBANK
------- -------- ----------- ------------ --------- ---------
<S> <C> <C> <C> <C> <C> <C>
Interest Income $1,878,194 $37,906 $(553)<F15> $1,915,547 $120,692 $157,373
Interest Expense 957,690 20,003 0 977,693 59,346 71,472
---------- ------- ----- ---------- -------- --------
Net Interest Income 920,504 17,903 (553) 937,854 61,346 85,901
Provision for Possible Loan Losses 79,309 3,382 0 82,691 4,676 2,958
---------- ------- ----- ---------- -------- --------
Net Interest Income after Provision
for Possible Loan Losses 841,195 14,521 (553) 855,163 56,670 82,943
Other Income
Trust 96,055 552 96,607 5,536 5,010
Service charges 98,733 2,943 101,676 5,396 7,441
Credit card fees 20,480 0 20,480 0 0
Net loss from financial instruments 0 0 0 0 0
Securities gains 6,985 135 7,120 417 636
Other 156,431 727 157,158 6,857 11,531
---------- ------- ----- ---------- -------- --------
Total Other Income 378,684 4,357 0 383,041 18,206 24,618
Other Expense
Salaries and employee benefits 414,882 5,656 420,538 24,192 35,009
Net occupancy and equipment 118,758 2,023 120,781 6,596 10,082
Loss on the sale of credit card loans 50,000 0 50,000 0 0
Other 311,140 3,198 314,338 16,449 16,030
---------- ------- ----- ---------- -------- --------
Total Other Expense 894,780 10,877 0 905,657 47,237 61,121
---------- ------- ----- ---------- -------- --------
Income Before Income Taxes 325,099 8,001 (553) 332,547 27,639 46,440
Income Taxes 120,506 2,658 (199)<F16> 122,965 8,110 16,796
---------- ------- ----- ---------- -------- --------
Net Income $ 204,593 $ 5,343 $(354) $ 209,582 $ 19,529 $ 29,644
========== ======= ===== ========== ======== ========
Per Share Data<F29>:
Basic Earnings per Share $ 1.68 $ 1.70
Diluted Earnings per Share 1.65 1.66
<CAPTION>
ROOSEVELT ROOSEVELT/ MBI/ALL ENTITIES
FOR THE SIX FIRSTBANK/CBT/ PRO FORMA
MONTHS ENDED FIRST FINANCIAL COMBINED
JUNE 30, 1997 ADJUSTMENTS<F23> CONSOLIDATED
------------- ---------------- ------------
<S> <C> <C> <C>
Interest Income $272,169 $ (1,152)<F17> $2,460,566
(844)<F19>
(3,219)<F21>
Interest Expense 178,306 858 <F24> 1,303,397
15,722 <F25>
-------- -------- ----------
Net Interest Income 93,863 (21,795) 1,157,169
Provision for Possible Loan Losses 3,474 93,799
-------- -------- ----------
Net Interest Income after Provision
for Possible Loan Losses 90,389 (21,795) 1,063,370
Other Income
Trust 0 107,153
Service charges 13,018 127,531
Credit card fees 0 20,480
Net loss from financial instruments (35,630) (35,630)
Securities gains 0 8,173
Other 10,038 185,584
-------- -------- ----------
Total Other Income (12,574) 413,291
Other Expense
Salaries and employee benefits 23,717 503,456
Net occupancy and equipment 9,291 146,750
Loss on the sale of credit card loans 0 50,000
Other 36,555 20,269 <F26> 403,641
-------- -------- ----------
Total Other Expense 69,563 20,269 1,103,847
-------- -------- ----------
Income Before Income Taxes 8,252 (42,064) 372,814
Income Taxes 7,630 (415)<F18> 147,654
(304)<F20>
(1,159)<F22>
(5,969)<F27>
-------- -------- ----------
Net Income $ 622 $(34,217) $ 225,160
======== ======== ==========
Per Share Data<F29>:
Basic Earnings per Share $ 1.49
Diluted Earnings per Share 1.45
See Notes to Pro Forma Combined Consolidated Financial Statements
</TABLE>
-55-
<PAGE> 61
<TABLE>
MERCANTILE BANCORPORATION INC.
PRO FORMA COMBINED CONSOLIDATED INCOME STATEMENT
FOR THE YEAR ENDED DECEMBER 31, 1996
(THOUSANDS, EXCEPT PER SHARE DATA)
(UNAUDITED)
<CAPTION>
MBI/FSCM
PRO FORMA CBT/
FSCM COMBINED FIRST
MBI<F1> FSCM<F2> ADJUSTMENTS CONSOLIDATED FINANCIAL FIRSTBANK
------- -------- ----------- ------------ --------- ---------
<S> <C> <C> <C> <C> <C> <C>
Interest Income $1,552,863 $33,596 $(553)<F15> $1,585,906 $110,914 $140,611
Interest Expense 724,910 17,212 0 742,122 52,691 61,005
---------- ------- ----- ---------- -------- --------
Net Interest Income 827,953 16,384 (553) 843,784 58,223 79,606
Provision for Possible Loan Losses 73,015 2,525 0 75,540 3,474 2,868
---------- ------- ----- ---------- -------- --------
Net Interest Income after Provision
for Possible Loan Losses 754,938 13,859 (553) 768,244 54,749 76,738
Other Income
Trust 86,616 433 87,049 5,109 4,292
Service charges 88,916 2,529 91,445 5,166 6,651
Credit card fees 27,962 0 27,962 0 0
Securities gains (losses) (83) 0 (83) (125) 340
Other 134,069 651 134,720 5,606 10,515
---------- ------- ----- ---------- -------- --------
Total Other Income 337,480 3,613 0 341,093 15,756 21,798
Other Expense
Salaries and employee benefits 365,729 6,284 372,013 22,288 31,919
Net occupancy and equipment 103,715 1,859 105,574 6,208 9,259
Other 249,224 3,288 252,512 17,288 13,959
---------- ------- ----- ---------- -------- --------
Total Other Expense 718,668 11,431 0 730,099 45,784 55,137
---------- ------- ----- ---------- -------- --------
Income Before Income Taxes 373,750 6,041 (553) 379,238 24,721 43,399
Income Taxes 128,535 2,199 (199)<F16> 130,535 7,180 15,526
---------- ------- ----- ---------- -------- --------
Net Income $ 245,215 $ 3,842 $(354) $ 248,703 $ 17,541 $ 27,873
========== ======= ===== ========== ======== ========
Per Share Data<F29>:
Basic Earnings per Share $ 2.11 $ 2.12
Diluted Earnings per Share 2.08 2.07
<CAPTION>
FIRSTBANK/ MBI/ALL ENTITIES
CBT/ PRO FORMA
FIRST FINANCIAL COMBINED
ADJUSTMENTS CONSOLIDATED
----------- ------------
<S> <C> <C>
Interest Income $(1,152)<F17> $1,832,216
(844)<F19>
(3,219)<F21>
Interest Expense 855,818
------- ----------
Net Interest Income (5,215) 976,398
Provision for Possible Loan Losses 81,882
------- ----------
Net Interest Income after Provision
for Possible Loan Losses (5,215) 894,516
Other Income
Trust 96,450
Service charges 103,262
Credit card fees 27,962
Securities gains (losses) 132
Other 150,841
------- ----------
Total Other Income 0 378,647
Other Expense
Salaries and employee benefits 426,220
Net occupancy and equipment 121,041
Other 283,759
------- ----------
Total Other Expense 0 831,020
------- ----------
Income Before Income Taxes (5,215) 442,143
Income Taxes (415)<F18> 151,363
(304)<F20>
(1,159)<F22>
------- ----------
Net Income $(3,337) $ 290,780
======= ==========
Per Share Data<F29>:
Basic Earnings per Share $ 2.13
Diluted Earnings per Share 2.09
See Notes to Pro Forma Combined Consolidated Financial Statements.
</TABLE>
-56-
<PAGE> 62
<TABLE>
MERCANTILE BANCORPORATION INC.
PRO FORMA COMBINED CONSOLIDATED INCOME STATEMENT
FOR THE YEAR ENDED DECEMBER 31, 1995
(THOUSANDS, EXCEPT PER SHARE DATA)
(UNAUDITED)
<CAPTION>
MBI/FSCM
PRO FORMA CBT/
FSCM COMBINED FIRST
MBI<F1> FSCM<F2> ADJUSTMENTS CONSOLIDATED FINANCIAL FIRSTBANK
------- -------- ----------- ------------ --------- ---------
<S> <C> <C> <C> <C> <C> <C>
Interest Income $1,516,156 $28,658 $(553)<F15> $1,544,261 $107,504 $134,401
Interest Expense 715,466 14,629 0 730,095 51,399 57,486
---------- ------- ----- ---------- -------- --------
Net Interest Income 800,690 14,029 (553) 814,166 56,105 76,915
Provision for Possible Loan Losses 41,533 1,630 0 43,163 1,472 2,313
---------- ------- ----- ---------- -------- --------
Net Interest Income after Provision
for Possible Loan Losses 759,157 12,399 (553) 771,003 54,633 74,602
Other Income
Trust 77,115 334 77,449 4,232 5,986
Service charges 82,459 2,315 84,774 5,126 5,836
Credit card fees 20,366 0 20,366 0 0
Securities gains 4,338 11 4,349 268 28
Other 127,371 582 127,953 4,782 8,318
---------- ------- ----- ---------- -------- --------
Total Other Income 311,649 3,242 0 314,891 14,408 20,168
Other Expense
Salaries and employee benefits 346,156 5,728 351,884 23,475 30,882
Net occupancy and equipment 95,896 1,667 97,563 5,771 9,215
Other 198,467 3,032 201,499 16,709 14,824
---------- ------- ----- ---------- -------- --------
Total Other Expense 640,519 10,427 0 650,946 45,955 54,921
---------- ------- ----- ---------- -------- --------
Income Before Income Taxes 430,287 5,214 (553) 434,948 23,086 39,849
Income Taxes 149,898 1,719 (199)<F16> 151,418 6,492 14,107
---------- ------- ----- ---------- -------- --------
Net Income $ 280,389 $ 3,495 $(354) $ 283,530 $ 16,594 $ 25,742
========== ======= ===== ========== ======== ========
Per Share Data<F29>:
Basic Earnings per Share $ 2.41 $ 2.42
Diluted Earnings per Share 2.37 2.35
<CAPTION>
FIRSTBANK/ MBI/ALL ENTITIES
CBT/ PRO FORMA
FIRST FINANCIAL COMBINED
ADJUSTMENTS CONSOLIDATED
----------- ------------
<S> <C> <C>
Interest Income $(1,152)<F17> $1,780,951
(844)<F19>
(3,219)<F21>
Interest Expense 838,980
------- ----------
Net Interest Income (5,215) 941,971
Provision for Possible Loan Losses 46,948
------- ----------
Net Interest Income after Provision
for Possible Loan Losses (5,215) 895,023
Other Income
Trust 87,667
Service charges 95,736
Credit card fees 20,366
Securities gains 4,645
Other 141,053
------- ----------
Total Other Income 0 349,467
Other Expense
Salaries and employee benefits 406,241
Net occupancy and equipment 112,549
Other 233,032
------- ----------
Total Other Expense 0 751,822
------- ----------
Income Before Income Taxes (5,215) 492,668
Income Taxes (415)<F18> 170,139
(304)<F20>
(1,159)<F22>
------- ----------
Net Income $(3,337) $ 322,529
======= ==========
Per Share Data<F29>:
Basic Earnings per Share $ 2.37
Diluted Earnings per Share 2.31
See Notes to Pro Forma Combined Consolidated Financial Statements.
</TABLE>
-57-
<PAGE> 63
MERCANTILE BANCORPORATION INC.
NOTES TO PRO FORMA COMBINED CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
(1) Represents MBI restated historical consolidated financial statements
reflecting the acquisition of Mark Twain Bancshares, Inc. effective
April 25, 1997, which was accounted for as a pooling-of-interests. The
recently completed acquisitions of Horizon and HomeCorp also were
accounted for as poolings-of-interests; however, due to the
immateriality of the financial condition and results of operations of
Horizon and HomeCorp to that of MBI, the historical financial
statements of MBI were not restated. Regional Bancshares, Inc. was
accounted for as a purchase and is included in these pro forma
financial statements only from its acquisition date forward. The full
impact of this acquisition is immaterial to the Pro Forma Combined
Consolidated Financial Statements.
MBI completed its acquisition of Roosevelt on July 1, 1997. The
acquisition of Roosevelt was accounted for as a purchase; as such,
historical financial statements were not restated. The estimated full
impact of the Roosevelt acquisition is included in the pro forma
combined consolidated income statement for the year ended December 31,
1997 and the three months ended March 31, 1997.
All per share data reflects the 3-for-2 stock split declared by MBI on
July 16, 1997 that was distributed on October 1, 1997.
(2) Represents FSCM operating results for the calendar years ended December
31, 1997, 1996 and 1995. FSCM's fiscal year-end is March 31.
(3) In conjunction with the proposed acquisition of FSCM, MBI plans to
repurchase up to 199,676 shares of MBI Common Stock in the open market.
The assumed repurchase price per share is $55.375, the closing price of
MBI Common Stock on April 9, 1998, the last trading date preceding the
announcement of the Merger Agreement.
(4) Acquisition of FSCM with 2,077,000 shares of issued MBI Common Stock,
including up to 199,676 reissued treasury shares, based on the exchange
ratio of 6.8573 shares of MBI Common Stock per share of FSCM Common
Stock. The number of shares of MBI Common Stock, which represents the
aggregate number of shares to be issued in the Merger, was calculated
as follows:
<TABLE>
<S> <C>
Shares of FSCM Common Stock outstanding 260,424
Maximum number of shares of FSCM Common Stock which could be issued:
Pursuant to FSCM's stock option plans 800
In the conversion of FSCM preferred stock 41,666
---------
Maximum number of shares of FSCM Common Stock to be canceled in the Merger 302,890
Exchange Ratio x 6.8573
---------
Aggregate number of shares of MBI Common Stock to be issued in the Merger 2,077,000
=========
</TABLE>
(5) Elimination of MBI's investment in FSCM.
-58-
<PAGE> 64
(6) Balance sheet impact of adjustments related to the mergers with FSCM,
CBT, First Financial and Firstbank (see footnote 28). These
adjustments will be initially recorded as a credit to accrued
liabilities and the reserve for possible loan losses. Because the
credit to accrued liabilities will be paid out in cash within an
estimated 18-month period following the mergers, the Pro Forma Combined
Consolidated Financial Statements reflect the cash outlay. An income
tax benefit at an effective tax rate of 36% is included in these
adjustments.
(7) Acquisition of CBT with 5,398,785 shares of issued MBI Common Stock,
including up to 436,875 reissued treasury shares, based on the exchange
ratio of 0.6513 of a share of MBI Common Stock per share of CBT Common
Stock. The number of shares of MBI Common Stock, which represents the
aggregate number of shares to be issued in the merger, was calculated
as follows:
<TABLE>
<S> <C>
Shares of CBT Common Stock 7,863,792
Maximum number of shares of CBT Common Stock which could be issued
pursuant to CBT's stock option plans 425,453
---------
Maximum number of shares of CBT Common Stock to be canceled in the
merger 8,289,245
Exchange Ratio x 0.6513
---------
Aggregate number of shares of MBI Common Stock to be issued in the
merger 5,398,785
=========
</TABLE>
(8) Elimination of MBI's investment in CBT.
(9) In conjunction with the proposed acquisition of First Financial, MBI
plans to repurchase up to 319,484 shares of MBI Common Stock in the
open market. The assumed repurchase price per share is $52.8125, the
closing price of MBI Common Stock on May 7, 1998, the last trading date
preceding the announcement of the merger agreement between MBI and
First Financial.
(10) Acquisition of First Financial with 3,194,844 shares of issued MBI
Common Stock, including up to 319,484 reissued treasury shares, based
on the exchange ratio of 0.88 of a share of MBI Common Stock per share
of First Financial Common Stock. The number of shares of MBI Common
Stock, which represents the aggregate number of shares to be issued in
the merger, was calculated as follows:
<TABLE>
<S> <C>
Shares of First Financial Common Stock outstanding 3,553,717
Maximum number of shares of First Financial Common Stock which could be issued
pursuant to First Financial's stock option plans 76,788
---------
Maximum number of shares of First Financial Common Stock to be canceled in the
Merger 3,630,505
Exchange Ratio x 0.88
---------
Aggregate number of shares of MBI Common Stock to be issued in the
merger 3,194,844
=========
</TABLE>
(11) Elimination of MBI's investment in First Financial.
(12) Acquisition of Firstbank with 13,786,135 shares of issued MBI Common
Stock, including up to 1,275,000 reissued treasury shares, based on the
exchange ratio of 0.8308 of a share of MBI
-59-
<PAGE> 65
Common Stock per share of Firstbank Common Stock. The number of shares of
MBI Common Stock, which represents the aggregate number of shares to be
issued in the merger, was calculated as follows:
<TABLE>
<S> <C>
Shares of Firstbank Common Stock 15,941,350
Maximum number of shares of Firstbank Common Stock which could be
issued pursuant to Firstbank's stock option plans 652,457
----------
Maximum number of shares of Firstbank Common Stock to be canceled in
the merger 16,593,807
Exchange Ratio x 0.8308
----------
Aggregate number of shares of MBI Common Stock to be issued in the Merger 13,786,135
==========
</TABLE>
(13) Elimination of MBI's investment in Firstbank.
(14) Estimated balance sheet impact of sales of Firstbank subsidiaries,
Colonial Bank and Duchesne Bank, mandated by certain restrictions on
deposit concentration. MBI expects to record an after-tax gain of
approximately $25,000,000 in connection with the sales.
(15) Interest income foregone as a result of MBI repurchasing 199,676
treasury shares in conjunction with the acquisition of FSCM by MBI.
The assumed interest rate is 5%.
(16) Income tax benefit associated with interest income foregone as the
result of repurchasing shares in conjunction with the acquisition of
FSCM by MBI. The assumed effective tax rate is 36%.
(17) Interest income foregone as a result of MBI repurchasing 436,875
treasury shares in conjunction with the acquisition of CBT by MBI. These
shares were repurchased by MBI in March 1998. The assumed interest rate
is 5%.
(18) Income tax benefit associated with interest income foregone as the
result of repurchasing shares in conjunction with the acquisition of
CBT by MBI. The assumed effective tax rate is 36%.
(19) Interest income foregone as a result of MBI repurchasing 319,484
treasury shares in conjunction with the acquisition of First Financial
by MBI. The assumed interest rate is 5%.
(20) Income tax benefit associated with interest income foregone as the
result of repurchasing shares in conjunction with the acquisition of
First Financial by MBI. The assumed effective tax rate is 36%.
(21) Interest income foregone as a result of MBI repurchasing 1,275,000
treasury shares in conjunction with the acquisition of Firstbank by
MBI. These shares were repurchased by MBI in March 1998. The assumed
interest rate is 5%.
(22) Income tax benefit associated with interest income foregone as the
result of repurchasing shares in conjunction with the acquisition of
Firstbank by MBI. The assumed effective tax rate is 36%.
(23) The acquisition of Roosevelt was accounted for as a purchase
transaction. Included herein is the amortization of goodwill over a
15-year period (see footnote 26 below) and interest expense related to
the issuance of subordinated debt securities and notes as described in
footnotes 24 and 25 below. The impact of interest income lost on the
cash consideration and stock buybacks is
-60-
<PAGE> 66
immaterial to the Pro Forma Combined Consolidated Financial Statements.
The income tax benefit associated with taxable income statement
adjustments is computed at an effective tax rate of 36%.
(24) On January 29, 1997, MBI issued $150,000,000 of subordinated debt
securities, that were issued at a floating rate equal to the
three-month LIBOR plus 85 basis points. The rate assumed in
calculating the expense from January 1 through January 29, 1997 for the
Pro Forma Combined Consolidated Financial Statements is 6.86%.
(25) On June 11, 1997, MBI issued $200,000,000 of 7.3% subordinated notes
due 2007, $150,000,000 of 6.8% senior notes due 2001 and $150,000,000
of 7.05% senior notes due 2004. This is the pro forma impact of
interest expense on such notes.
(26) The pro forma excess of cost over fair value of net assets acquired was
$608,076,000 for Roosevelt as of December 31, 1997. Given a 15-year
amortization period, the pro forma income statement reflects
one-quarter and one-half the annual amount of goodwill amortization for
the three months ended March 31, 1997 and the year ended December 31,
1997, respectively.
(27) Income tax benefit associated with interest expense on debt issues (see
footnotes 24 and 25 above). The assumed effective tax rate is 36%.
(28) Upon consummation of the mergers with FSCM and First Financial, MBI
expects to record certain adjustments, related to the mergers with an
approximate pre-tax total of between $18,000,000 and $22,000,000. Upon
consummation of the acquisition of Firstbank, MBI expects to record
certain adjustments related to the merger with an approximate pre-tax
total between $25,000,000 and $40,000,000. Upon consummation of the
merger with CBT, MBI expects to record certain adjustments related to
the merger with an approximate pre-tax total between $15,000,000 and
$25,000,000. The provisions for possible loan losses are to
substantially conform the accounting and credit policies of the
acquirees to those of MBI. The pre-tax adjustments for FSCM, First
Financial, Firstbank and CBT are estimated as follows:
<TABLE>
<CAPTION>
First
FSCM Financial Firstbank CBT
---- --------- --------- -------
(in thousands)
<S> <C> <C> <C> <C>
Contract penalties, equipment abandonment costs and
transition and duplicative costs related to system
standardization and signage $3,500 $3,600 $14,250 $ 9,700
Provision for possible loan losses 2,000 1,500 5,000 5,100
Accruals for severance and change of control payments 2,900 1,900 10,600 3,500
Investment banking, legal and accounting fees 725 1,900 8,600 3,250
------ ------ ------- -------
Total $9,125 $8,900 $38,450 $21,550
====== ====== ======= =======
</TABLE>
-61-
<PAGE> 67
(29) Earnings per share was based upon the average shares listed below:
<TABLE>
<CAPTION>
FOR THE THREE MONTHS
ENDED MARCH 31, FOR THE YEAR ENDED DECEMBER 31,
----------------------------- ---------------------------------------------
1998 1997 1997 1996 1995
----------- ----------- ----------- ----------- -----------
<S> <C> <C> <C> <C> <C>
MBI average shares as reported 132,778,433 114,862,128 121,933,113 115,938,311 115,754,877
MBI equivalent shares for the
following acquisitions, net of
treasury share repurchases:
FSCM 1,586,129 1,012,304 1,032,759 1,008,923 1,001,113
CBT 4,684,324 4,661,176 4,684,198 4,690,928 4,726,732
First Financial 2,788,709 2,762,804 2,757,554 2,785,853 2,825,383
Firstbank 11,888,331 11,555,805 11,685,124 11,584,583 11,604,514
Shares of MBI Common Stock
issued in the Roosevelt acquisition 18,948,884 18,948,884
Less effect of MBI shares issued
in the Roosevelt acquisition during
the second half of 1997 (9,474,442)
----------- ----------- ----------- ----------- -----------
Average shares outstanding for
basic earnings per share 153,725,926 153,803,101 151,567,190 136,008,598 135,912,619
Effect of MBI dilutive stock
options and convertible notes 2,471,850 1,969,592 2,405,301 1,851,462 2,304,336
MBI equivalent average shares of
dilutive stock equivalents for:
FSCM 286,457 1,011,513 911,952 1,044,600 1,109,141
CBT 95,365 170,558 40,918 33,418 34,236
First Financial 25,626 16,877 26,499 16,254 14,349
Firstbank 261,926 219,577 246,677 185,452 178,084
----------- ----------- ----------- ----------- -----------
Average shares outstanding for diluted
earnings per share 156,867,150 157,191,218 155,198,537 139,139,784 139,552,765
=========== =========== =========== =========== ===========
</TABLE>
-62-
<PAGE> 68
INFORMATION REGARDING MBI STOCK
-------------------------------
DESCRIPTION OF MBI COMMON STOCK AND ATTACHED PREFERRED SHARE
PURCHASE RIGHTS
GENERAL. MBI has authorized 5,000,000 shares of MBI Preferred
Stock, no par value, and 400,000,000 shares of MBI Common Stock, $0.01 par
value. At March 31, 1998, MBI had no shares of MBI Preferred Stock issued or
outstanding and 134,960,625 shares of MBI Common Stock issued and 133,115,227
outstanding. Under Missouri law, MBI's Board of Directors may generally
approve the issuance of authorized shares of Preferred Stock and Common Stock
without shareholder approval.
MBI's Board of Directors is also authorized to fix the number of
shares and determine the designation of any series of Preferred Stock and to
determine or alter the rights, preferences, privileges and restrictions
granted to or imposed upon any series of MBI Preferred Stock. Except for the
current designation and reservation of Series B Junior Participating
Preferred Stock pursuant to MBI's Preferred Share Purchase Rights Plan, MBI's
Board of Directors has not acted to designate or issue any shares of MBI
Preferred Stock. The existence of a substantial number of unissued and
unreserved shares of MBI Common Stock and undesignated shares of MBI
Preferred Stock may enable the Board of Directors to issue shares to such
persons and in such manner as may be deemed to have an anti-takeover effect.
The following summary of the terms of MBI's capital stock does not
purport to be complete and is qualified in its entirety by reference to the
applicable provisions of MBI's Restated Articles of Incorporation, as
amended, and by-laws and Missouri law.
DIVIDENDS. The holders of MBI Common Stock are entitled to share
ratably in dividends when, as and if declared by the Board of Directors from
funds legally available therefor, after full cumulative dividends have been
paid or declared, and funds sufficient for the payment thereof set apart, on
all series of MBI Preferred Stock ranking superior as to dividends to MBI
Common Stock.
The Board of Directors of MBI intends to maintain its present policy
of paying quarterly cash dividends on MBI Common Stock, when justified by the
financial condition of MBI and its subsidiaries. The declaration and amount
of future dividends will depend on circumstances existing at the time,
including MBI's earnings, financial condition and capital requirements as
well as regulatory limitations, note and indenture provisions and such other
factors as the Board of Directors may deem relevant. The payment of
dividends to MBI by subsidiary banks is subject to extensive regulation by
various state and federal regulatory agencies. See "SUPERVISION AND
REGULATION."
VOTING RIGHTS. Each holder of MBI Common Stock has one vote for
each share held on matters presented for consideration by the shareholders,
except that, in the election of directors, each shareholder has cumulative
voting rights that entitle each such shareholder to the number of votes that
equals the number of shares held by the shareholder multiplied by the number
of directors to be elected. All such votes may be cast for one candidate for
election as a director or may be distributed among two or more candidates.
PREEMPTIVE RIGHTS. The holders of MBI Common Stock have no
preemptive right to acquire any additional unissued shares or treasury shares
of MBI.
-63-
<PAGE> 69
LIQUIDATION RIGHTS. In the event of liquidation, dissolution or
winding up of MBI, whether voluntary or involuntary, the holders of MBI
Common Stock will be entitled to share ratably in any of its assets or funds
that are available for distribution to its shareholders after the
satisfaction of its liabilities (or after adequate provision is made
therefor) and after preferences on any outstanding MBI Preferred Stock.
ASSESSMENT AND REDEMPTION. Shares of MBI Common Stock are and
will be, when issued, fully paid and nonassessable. Such shares do not have
any redemption provisions.
PREFERRED SHARE PURCHASE RIGHTS PLAN. One preferred share
purchase right is attached to each share of MBI Common Stock. The MBI Rights
trade automatically with shares of MBI Common Stock, and become exercisable
and will trade separately from the MBI Common Stock on the tenth day after
public announcement that a person or group has acquired, or has the right to
acquire, beneficial ownership of 20% or more of the outstanding shares of MBI
Common Stock, or upon commencement or announcement of intent to make a tender
offer for 20% or more of the outstanding shares of MBI Common Stock, in
either case without prior written consent of the Board. When exercisable,
each MBI Right will entitle the holder to buy 1/100 of a share of MBI Series
B Junior Participating Preferred Stock at an exercise price of $212 per MBI
Right. In the event a person or group acquires beneficial ownership of 20%
or more of MBI Common Stock, holders of MBI Rights (other than the acquiring
person or group) may purchase MBI Common Stock having a market value of twice
the then current exercise price of each MBI Right. If MBI is acquired by any
person or group after the Rights become exercisable, each MBI Right will
entitle its holder to purchase stock of the acquiring company having a market
value of twice the current exercise price of each MBI Right. The MBI Rights
are designed to protect the interests of MBI and its shareholders against
coercive takeover tactics. The purpose of the MBI Rights is to encourage
potential acquirors to negotiate with MBI's Board of Directors prior to
attempting a takeover and to give the Board leverage in negotiating on behalf
of all MBI shareholders the terms of any proposed takeover. The MBI Rights
may deter certain takeover proposals. The MBI Rights, which can be redeemed
by MBI's Board of Directors in certain circumstances, expire by their terms
on June 3, 2008.
CLASSIFICATION OF BOARD OF DIRECTORS. The Board of Directors
of MBI is divided into three classes, and the directors are elected by
classes to three-year terms, so that one of the three classes of the
directors of MBI will be elected at each annual meeting of the shareholders.
While this provision promotes stability and continuity of the Board of
Directors, classification of the Board of Directors also may have the effect
of decreasing the number of directors that could otherwise be elected at each
annual meeting of shareholders by a person who obtains a controlling interest
in the MBI Common Stock and thereby could impede a change in control of MBI.
Because fewer directors will be elected at each annual meeting, such
classification also will reduce the effectiveness of cumulative voting as a
means of establishing or increasing minority representation on the Board of
Directors.
OTHER MATTERS. MBI's Restated Articles of Incorporation, as
amended, and by-laws also contain provisions that: (i) require the
affirmative vote of holders of at least 75% of the voting power of all of the
shares of outstanding capital stock of MBI entitled to vote in the election
of directors to remove a director or directors without cause; (ii) require
the affirmative vote of the holders of at least 75% of the voting power of
all shares of the outstanding capital stock of MBI to approve certain
"business combinations" with "interested parties" unless at least two-thirds
of the Board of Directors first approves such business combinations; and
(iii) require an affirmative vote of at least 75% of the voting power of
-64-
<PAGE> 70
all shares of the outstanding capital stock of MBI for the amendment,
alteration, change or repeal of any of the above provisions unless at least
two-thirds of the Board of Directors first approves such an amendment,
alteration, change or repeal. Such provisions may be deemed to have an
anti-takeover effect.
RESTRICTIONS ON RESALE OF MBI STOCK BY AFFILIATES
Under Rule 145 of the Securities Act of 1933, as amended (the
"Securities Act"), certain persons who receive MBI Common Stock pursuant to
the Merger and who are deemed to be "affiliates" of FSCM will be limited in
their right to resell the stock so received. The term "affiliate" is defined
to include any person who, directly or indirectly, controls, or is controlled
by, or is under common control with FSCM at the time the Merger is submitted
to a vote of the stockholders of FSCM. Each affiliate of FSCM (generally any
director or executive officer of FSCM or any stockholder of FSCM who
beneficially owns a substantial number of outstanding shares of FSCM Common
Stock) who desires to resell the MBI Common Stock received in the Merger must
sell such stock either pursuant to an effective registration statement or in
accordance with an applicable exemption, such as the applicable provisions of
Rule 145(d) under the Securities Act.
Rule 145(d) provides that persons deemed to be affiliates may resell
their stock received in the Merger pursuant to certain of the requirements of
Rule 144 under the Securities Act if such stock is sold within the first year
after the receipt thereof. After one year if such person is not an affiliate
of MBI and if MBI is current with respect to its required public filings, a
former affiliate of FSCM may resell the stock received in the Merger without
limitation. After two years from the issuance of the stock, if such person
is not an affiliate of MBI at the time of sale and for at least three months
prior to such sale, such person may resell such stock, without limitation,
regardless of the status of MBI's required public filings. The shares of MBI
Common Stock to be received by affiliates of FSCM in the Merger will be
legended as to the restrictions imposed upon resale of such stock.
FSCM has agreed to provide MBI with a list of those persons who may
be deemed to be affiliates of FSCM at the time of the Special Meeting. FSCM
has agreed to use all reasonable efforts to cause each such person to deliver
to MBI prior to the Effective Time a written agreement to the effect that no
sale will be made of any shares of MBI Common Stock received in the Merger by
an affiliate of FSCM except in accordance with the Securities Act and until
such time as MBI shall first publish the financial results of at least 30
days of post-Merger combined operations of FSCM and MBI. The certificates of
MBI Common Stock issued to affiliates of FSCM in the Merger may contain an
appropriate restrictive legend, and appropriate stop transfer orders may be
given to the transfer agent for such certificates.
COMPARISON OF THE RIGHTS OF SHAREHOLDERS OF MBI AND STOCKHOLDERS OF FSCM
MBI is incorporated under the laws of the State of Missouri, while
FSCM is incorporated under the laws of the State of Delaware. The rights of
the shareholders of MBI are governed by MBI's Restated Articles of
Incorporation, as amended, and by-laws and Chapter 351 of the Missouri
Revised Statutes (the "Missouri Act"). The rights of FSCM stockholders are
governed by FSCM's Certificate of Incorporation and by-laws, both as amended,
and by the DGCL. The rights of FSCM stockholders who receive shares of MBI
Common Stock in the Merger will thereafter be governed by MBI's Restated
Articles of Incorporation, as amended, and by-laws and by the Missouri Act.
The material rights of such
-65-
<PAGE> 71
shareholders, and, where applicable, the differences between the rights of MBI
shareholders and FSCM stockholders, are summarized below.
PREFERRED SHARE PURCHASE RIGHTS PLAN. As described above
under "- Preferred Share Purchase Rights Plan," MBI Common Stock has attached
Rights, which may deter certain takeover proposals. FSCM does not have a
rights plan.
SUPERMAJORITY PROVISIONS. MBI's Restated Articles of
Incorporation, as amended, and MBI's by-laws contain provisions requiring a
supermajority vote of the shareholders of MBI to approve certain proposals.
Under both MBI's Restated Articles of Incorporation, as amended, and by-laws,
removal by the shareholders of the entire Board of Directors or any
individual director from office without cause requires the affirmative vote
of not less than 75% of the total votes entitled to be voted at a meeting of
shareholders called for the election of directors. Amendment by the
shareholders of MBI's Restated Articles of Incorporation, as amended, or
by-laws relating to (i) the number or qualification of directors; (ii) the
classification of the Board of Directors; (iii) the filling of vacancies on the
Board of Directors; or (iv) the removal of directors, requires the affirmative
vote of not less than 75% of the total votes of MBI's then outstanding shares
of capital stock entitled to vote, voting together as a single class, unless
such amendment has previously been expressly approved by at least two-thirds
of the Board of Directors. The Restated Articles of Incorporation, as
amended, of MBI additionally provide that, in addition to any shareholder
vote required under the Missouri Act, the affirmative vote of the holders of
not less than 75% of the total votes to which all of the then outstanding
shares of capital stock of MBI are entitled, voting together as a single
class (the "Voting Stock"), shall be required for the approval of any
Business Combination. A "Business Combination" is defined generally to
include sales, exchanges, leases, transfers or other dispositions of assets,
mergers or consolidations, issuances of securities, liquidations or
dissolutions of MBI, reclassifications of securities or recapitalizations of
MBI, involving MBI on the one hand, and an Interested Shareholder or an
affiliate of an Interested Shareholder on the other hand. An "Interested
Shareholder" is defined generally to include any person, firm, corporation or
other entity which is the beneficial owner of 5% or more of the voting power
of the outstanding Voting Stock. If, however, at least two-thirds of the
Board of Directors of MBI approve the Business Combination, such Business
Combination shall require only the vote of shareholders as provided by
Missouri law or otherwise. The amendment of the provisions of MBI's Restated
Articles relating to the approval of Business Combinations requires the
affirmative vote of the holders of at least 75% of the Voting Stock unless
such amendment has previously been approved by at least two-thirds of the
Board of Directors. To the extent that a potential acquiror's strategy
depends on the passage of proposals which require a supermajority vote of
MBI's shareholders, such provisions requiring a supermajority vote may have
the effect of discouraging takeover attempts that do not have Board approval
by making passage of such proposals more difficult.
FSCM's Certificate of Incorporation and by-laws, both as amended,
contain provisions requiring a majority vote of the stockholders to approve
certain proposals. Under FSCM's Certificate of Incorporation, as amended,
approval of a merger or consolidation with any other corporation, the sale of
substantially all of the assets of FSCM or any amendment, alteration or
repeal of such provisions of the Certificate of Incorporation requires the
prior affirmative vote of a majority of the then outstanding shares of stock
of FSCM.
VOTING FOR DIRECTORS. MBI's by-laws provide for cumulative
voting in the election of directors. Cumulative voting entitles each
shareholder to cast an aggregate number of votes equal to the
-66-
<PAGE> 72
number of voting shares held, multiplied by the number of directors to be
elected. Each shareholder may cast all such votes for one nominee or distribute
them among two or more nominees, thus permitting holders of less than a majority
of the outstanding shares of voting stock to achieve board representation.
FSCM's by-laws do not provide for cumulative voting in the election of
directors.
CLASSIFIED BOARD. As described under "- Classification of Board
of Directors," the Board of Directors of MBI is divided into three classes of
directors, with each class being elected to a staggered three-year term. By
reducing the number of directors to be elected in any given year, the
existence of a classified Board diminishes the benefits of the cumulative
voting rights to minority shareholders. FSCM does not have a classified
Board of Directors. Each of its directors is elected annually.
ANTI-TAKEOVER STATUTES. The Missouri Act contains certain
provisions applicable to Missouri corporations such as MBI which may be
deemed to have an anti-takeover effect. Such provisions include Missouri's
business combination statute and the control share acquisition statute.
The Missouri business combination statute protects domestic
corporations after hostile takeovers by prohibiting certain transactions once
an acquiror has gained control. The statute restricts certain "Business
Combinations" between a corporation and an "Interested Shareholder" or
affiliates of the Interested Shareholder for a period of five years unless
certain conditions are met. A "Business Combination" includes a merger or
consolidation, certain sales, leases, exchanges, pledges and similar
dispositions of corporate assets or stock and certain reclassifications and
recapitalizations. An "Interested Shareholder" includes any person or entity
which beneficially owns or controls 20% or more of the outstanding voting
shares of the corporation.
During the initial five-year restricted period, no Business
Combination may occur unless such Business Combination or the transaction in
which an Interested Shareholder becomes "interested" (the "Acquisition
Transaction") was approved by the board of directors of the corporation on or
before the date of the Acquisition Transaction. Business Combinations may
occur after the five-year period following the Acquisition Transaction only
if: (i) prior to the stock acquisition by the Interested Shareholder, the
board of directors approves the transaction in which the Interested
Shareholder became an Interested Shareholder or approves the Business
Combination in question; (ii) the holders of a majority of the outstanding
voting stock, other than stock owned by the Interested Shareholder, approve
the Business Combination; or (iii) the Business Combination satisfies certain
detailed fairness and procedural requirements.
The Missouri Act exempts from the provisions of the business
combination statute: (i) corporations not having a class of voting stock
registered under Section 12 of the Exchange Act; (ii) corporations which adopt
provisions in their articles of incorporation or by-laws expressly electing
not to be covered by the statute; and (iii) certain circumstances in which a
shareholder inadvertently becomes an Interested Shareholder. MBI's Restated
Articles of Incorporation and by-laws do not contain an election to "opt out"
of the Missouri business combination statute.
The Missouri Act also contains a "Control Share Acquisition Statute"
which provides that an "Acquiring Person" who after any acquisition of shares
of a publicly traded corporation has the voting power, when added to all
shares of the same corporation previously owned or controlled by the
Acquiring Person, to exercise or direct the exercise of: (i) 20% but less
than 33 1/3%, (ii) 33 1/3% or
-67-
<PAGE> 73
more but less than a majority or (iii) a majority, of the voting power of
outstanding stock of such corporation, must obtain shareholder approval for the
purchase of the "Control Shares." If approval is not given, the Acquiring
Person's shares lose the right to vote. The statute prohibits an Acquiring
Person from voting its shares unless certain disclosure requirements are met and
the retention or restoration of voting rights is approved by both: (i) a
majority of the outstanding voting stock, and (ii) a majority of the outstanding
voting stock after exclusion of "Interested Shares." Interested Shares are
defined as shares owned by the Acquiring Person, by directors who are also
employees, and by officers of the corporation. Shareholders are given
dissenters' rights with respect to the vote on Control Share Acquisitions and
may demand payment of the fair value of their shares.
A number of acquisitions of shares are deemed not to constitute
Control Share Acquisitions, including good faith gifts, transfers pursuant to
wills, purchases pursuant to an issuance by the corporation, mergers
involving the corporation which satisfy the other requirements of the
Missouri Act, transactions with a person who owned a majority of the voting
power of the corporation within the prior year, or purchases from a person
who has previously satisfied the provisions of the Control Share Acquisition
Statute so long as the transaction does not result in the purchasing party
having voting power after the purchase in a percentage range (such ranges are
as set forth in the immediately preceding paragraph) beyond the range for
which the selling party previously satisfied the provisions of the statute.
Additionally, a corporation may exempt itself from application of the statute
by inserting a provision in its articles of incorporation or by-laws
expressly electing not to be covered by the statute. MBI's Restated Articles
of Incorporation and by-laws do not contain an election to "opt out" of the
Control Share Acquisition Statute.
The DGCL applicable to FSCM contains a business combination statute
similar to that contained in the Missouri Act. Like the Missouri business
combination statute, the Delaware business combination statute generally
prohibits a domestic corporation from engaging in mergers or other business
combinations with Interested Persons (as defined in the DGCL) for a statutory
time period. The prohibition can be avoided if the business combination is
approved by the board of directors prior to the date on which the Interested
Person acquires the requisite percentage of stock. The Missouri Act imposes
a longer prohibition period on transactions with Interested Persons (five
years) than the DGCL (three years), thereby potentially increasing the period
during which a hostile takeover may be frustrated. In addition, the DGCL,
unlike its Missouri counterpart, does not apply if the Interested Person
obtains at least 85% of the corporation's voting stock upon consummation of
the transactions which resulted in the stockholder becoming an Interested
Person. Thus, a person acquiring at least 85% of the corporation's voting
stock could circumvent the defensive provisions of the DGCL while being
unable to do so under the Missouri Act. The DGCL does not contain a control
share acquisition statute similar to that contained in the Missouri Act.
DISSENTERS' RIGHTS. Under Section 351.455 of the Missouri Act, a
shareholder of any corporation which is a party to a merger or
consolidation, or which sells all or substantially all of its assets, has the
right to dissent from such corporate action and to demand payment of the
value of such shares. Under the DGCL, stockholders of FSCM are entitled to
appraisal rights upon the consolidation or merger of FSCM which are similar
but not identical to those under the Missouri Act. Specifically, the
dissenters' rights provisions of the Missouri Act do not have an exception
from the dissenters' rights provisions in circumstances in which the
shareholder seeking to exercise such rights owns shares in a widely held,
publicly traded corporation and is to receive, or continue to hold after the
transaction under which such shareholder is seeking to exercise dissenters'
rights, shares of a widely held, publicly traded
-68-
<PAGE> 74
corporation. In addition, the procedures and the filing deadlines applicable to
dissenters' rights under the Missouri Act are somewhat different than those
applicable in appraisal rights proceedings under the DGCL.
SHAREHOLDERS' AND STOCKHOLDERS' RIGHT TO INSPECT. Under the
DGCL, any stockholder may inspect the corporation's stock ledger, stockholder
list and other books and records for any proper purpose. A "proper purpose"
is defined as a purpose reasonably related to such person's interest as a
stockholder. The DGCL specifically provides that a stockholder may appoint
an agent for the purpose of examining the stock ledger, list of stockholders
or other books and records of the corporation. A stockholder may apply to
the Delaware Court of Chancery to compel inspection in the event the
stockholder's request to examine the books and records is refused. In
general, the stockholder has the burden of proving that the inspection he or
she seeks is for a proper purpose where a stockholder requests to examine the
stockholder ledger or stockholder list. The right of stockholders to inspect
under the Missouri Act is generally similar to that of stockholders under the
DGCL. Neither the Missouri Act nor Missouri case law, however, provides any
specific guidance as to whether a shareholder may appoint an agent for the
purpose of examining books and records or the extent to which a shareholder
must have a "proper purpose." Accordingly, in comparison with the DGCL, in a
given situation a Missouri shareholder may be provided with less guidance as
to the scope of his or her ability to inspect the books and records of the
corporation.
SIZE OF BOARD OF DIRECTORS. As permitted under the Missouri
Act, the number of directors on the Board of Directors of MBI is set forth in
MBI's by-laws, which provide that the number of directors may be fixed from
time to time at not less than 12 nor more than 24 by an amendment of the
by-laws or by a resolution of the Board of Directors, in either case, adopted
by the vote or consent of at least two-thirds of the number of directors then
authorized under the by-laws. MBI's Board of Directors currently has twelve
(12) members. Similarly to the Missouri Act, the DGCL provides that a
corporation may fix the number of directors in its Certificate of
Incorporation or by-laws. The number of directors on the Board of Directors
of FSCM is set forth in FSCM's Certificate of Incorporation, which provides
that the number of directors may be fixed from time to time at not less than
3 nor more than 25.
The supermajority vote required for the amendment of MBI's by-laws
regarding a change in the number of directors may have the effect of making
it more difficult to force an immediate change in the composition of a
majority of the Board of Directors and may be deemed to have an anti-takeover
effect.
SUPERVISION AND REGULATION
--------------------------
GENERAL
As a bank holding company, MBI is subject to regulation under the
BHCA and its examination and reporting requirements. Under the BHCA, a bank
holding company may not directly or indirectly acquire the ownership or
control of more than 5% of the voting shares or substantially all of the
assets of any company, including a bank or savings and loan association,
without the prior approval of the Federal Reserve Board. In addition, bank
holding companies are generally prohibited under the BHCA from engaging in
nonbanking activities, subject to certain exceptions.
-69-
<PAGE> 75
MBI and its subsidiaries are subject to supervision and examination
by applicable federal and state banking agencies. The earnings of MBI's
subsidiaries, and therefore, the earnings of MBI, are affected by general
economic conditions, management policies and the legislative and governmental
actions of various regulatory authorities, including the Federal Reserve
Board, the Federal Deposit Insurance Corporation ("FDIC"), the Office of the
Comptroller of the Currency (the "Comptroller") and various state financial
institution regulatory agencies. In addition, there are numerous
governmental requirements and regulations that affect the activities of MBI
and its subsidiaries.
CERTAIN TRANSACTIONS WITH AFFILIATES
There are various legal restrictions on the extent to which a bank
holding company and certain of its nonbank subsidiaries can borrow or
otherwise obtain credit from its bank subsidiaries. In general, these
restrictions require that any such extensions of credit must be on
non-preferential terms and secured by designated amounts of specified
collateral and be limited, as to the holding company or any one of such
nonbank subsidiaries, to 10% of the lending institution's capital stock and
surplus, and as to the holding company and all such nonbank subsidiaries in
the aggregate, to 20% of such capital stock and surplus.
PAYMENT OF DIVIDENDS
MBI is a legal entity separate and distinct from its financial
institutions and other subsidiaries. The principal source of MBI's revenues
is dividends from its financial institution subsidiaries. Various federal
and state statutory provisions limit the amount of dividends an affiliate
financial institution can pay to MBI without regulatory approval. The
approval of federal and state bank regulatory agencies, as appropriate, is
required for any dividend if the total of all dividends declared in any
calendar year would exceed the total of the institution's net profits, as
defined by regulatory agencies, for such year combined with its retained net
profits for the preceding two years. In addition, a national bank or a state
member bank may not pay a dividend in an amount greater than its net profits
then on hand. The payment of dividends by any financial institution
subsidiary also may be affected by other factors, such as the maintenance of
adequate capital.
CAPITAL ADEQUACY
The Federal Reserve Board has issued standards for measuring capital
adequacy for bank holding companies. These standards are designed to provide
risk-responsive capital guidelines and to incorporate a consistent framework
for use by financial institutions operating in major international financial
markets. The banking regulators have issued standards for banks that are
similar to, but not identical with, the standards for bank holding companies.
In general, the risk-related standards require financial
institutions and financial institution holding companies to maintain certain
capital levels based on "risk-adjusted" assets, so that categories of assets
with potentially higher credit risk will require more capital backing than
categories with lower credit risk. In addition, banks and bank holding
companies are required to maintain capital to support off-balance-sheet
activities such as loan commitments. MBI and each of its subsidiary
financial institutions exceed all applicable capital adequacy standards.
-70-
<PAGE> 76
SUPPORT OF SUBSIDIARY BANKS
Under Federal Reserve Board policy, MBI is expected to act as a
source of financial strength to each subsidiary bank and to commit resources
to support each of the subsidiaries in circumstances where it might not
choose to do so absent such a policy. This support may be required at times
when MBI may not find itself able to provide it. In addition, any capital
loans by MBI to any of its subsidiaries also would be subordinate in right of
payment to deposits and certain other indebtedness of such subsidiary.
Consistent with this policy regarding bank holding companies serving
as a source of financial strength for their subsidiary banks, the Federal
Reserve Board has stated that, as a matter of prudent banking, a bank holding
company generally should not maintain a rate of cash dividends unless its net
income available to common shareholders has been sufficient to fully fund the
dividends, and the prospective rate of earnings retention appears consistent
with the bank holding company's capital needs, asset quality and overall
financial condition.
FIRREA AND FDICIA
The Financial Institutions Reform, Recovery and Enforcement Act of
1989, as amended ("FIRREA"), contains a cross-guarantee provision that could
result in insured depository institutions owned by MBI being assessed for
losses incurred by the FDIC in connection with assistance provided to, or the
failure of, any other insured depository institution owned by MBI. Under
FIRREA, failure to meet the capital guidelines could subject a banking
institution to a variety of enforcement remedies available to federal
regulatory authorities, including the termination of deposit insurance by the
FDIC.
The Federal Deposit Insurance Corporation Improvement Act of 1991,
as amended ("FDICIA"), made extensive changes to the federal banking laws.
FDICIA instituted certain changes to the supervisory process, including
provisions that mandate certain regulatory agency actions against
undercapitalized institutions within specified time limits. FDICIA contains
various other provisions that may affect the operations of banks and savings
institutions.
The prompt corrective action provision of FDICIA requires the
federal banking regulators to assign each insured institution to one of five
capital categories ("well capitalized," "adequately capitalized" or one of
three "undercapitalized" categories) and to take progressively more
restrictive actions based on the capital categorization, as specified below.
Under FDICIA, capital requirements include a leverage limit, a risk-based
capital requirement and any other measure of capital deemed appropriate by
the federal banking regulators for measuring the capital adequacy of an
insured depository institution. All institutions, regardless of their
capital levels, are restricted from making any capital distribution or paying
any management fees that would cause the institution to fail to satisfy the
minimum levels for any relevant capital measure.
The FDIC and the Federal Reserve Board adopted capital-related
regulations under FDICIA. Under those regulations, a bank will be well
capitalized if it: (i) had a risk-based capital ratio of 10% or greater; (ii)
had a ratio of Tier I capital to risk-adjusted assets of 6% or greater; (iii)
had a ratio of Tier I capital to adjusted total assets of 5% or greater; and
(iv) was not subject to an order, written agreement, capital directive or
prompt corrective action directive to meet and maintain a specific capital
-71-
<PAGE> 77
level for any capital measure. An association will be adequately capitalized
if it was not "well capitalized" and: (i) had a risk-based capital ratio of 8%
or greater; (ii) had a ratio of Tier I capital to risk-adjusted assets of 4% or
greater; and (iii) had a ratio of Tier I capital to adjusted total assets of 4%
or greater (except that certain associations rated "Composite 1" under the
federal banking agencies' CAMEL rating system may be adequately capitalized
if their ratios of core capital to adjusted total assets were 3% or greater).
All MBI subsidiary financial institutions as of March 31, 1998 were
categorized as "well capitalized."
Banking agencies have recently adopted final regulations that
mandate that regulators take into consideration concentrations of credit risk
and risks from non-traditional activities, as well as an institution's
ability to manage those risks, when determining the adequacy of an
institution's capital. This evaluation will be made as part of the
institution's regular safety and soundness examination. Banking agencies
also have recently adopted final regulations requiring regulators to consider
interest rate risk (when the interest rate sensitivity of an institution's
assets does not match the sensitivity of its liabilities or its
off-balance-sheet position) in the evaluation of a bank's capital adequacy.
Concurrently, banking agencies have proposed a methodology for evaluating
interest rate risk. After gaining experience with the proposed measurement
process, these banking agencies intend to propose further regulations to
establish an explicit risk-based capital charge for interest rate risk.
DEPOSITOR PREFERENCE STATUTE
Legislation enacted in August 1993 provides a preference for
deposits and certain claims for administrative expenses and employee
compensation against an insured depository institution in the liquidation or
other resolution of such an institution by any receiver. Such obligations
would be afforded priority over other general unsecured claims against such
an institution, including federal funds and letters of credit, as well as any
obligation to shareholders of such an institution in their capacity as such.
FDIC INSURANCE ASSESSMENTS
The subsidiary depository institutions of MBI are subject to FDIC
deposit insurance assessments. The FDIC has adopted a risk-based premium
schedule. Each financial institution is assigned to one of three capital
groups - well capitalized, adequately capitalized or undercapitalized - and
further assigned to one of three subgroups within a capital group, on the
basis of supervisory evaluations by the institution's primary federal and, if
applicable, state supervisors, and on the basis of other information relevant
to the institution's financial condition and the risk posed to the applicable
insurance fund. The actual assessment rate applicable to a particular
institution will, therefore, depend in part upon the risk assessment
classification so assigned to the institution by the FDIC. See "-FIRREA and
FDICIA."
INTERSTATE BANKING AND OTHER RECENT LEGISLATION
The Riegle-Neal Interstate Banking and Branching Efficiency Act of
1994 ("Riegle-Neal"), enacted in 1994, facilitates the interstate expansion
and consolidation of banking organizations by permitting (i) bank holding
companies that are adequately capitalized and managed to acquire banks
located in states outside their home states regardless of whether such
acquisitions are authorized under the law of the host state, (ii) the
interstate merger of banks, except for banks located in Montana and Texas,
which states enacted legislation to "opt out" of this authority, (iii) banks to
establish new branches
-72-
<PAGE> 78
on an interstate basis provided that such action is specifically authorized by
the law of the host state, (iv) foreign banks to establish, with approval of the
regulators in the United States, branches outside their home states to the same
extent that national or state banks located in the home state would be
authorized to do so, and (v) banks to receive deposits, renew time deposits,
close loans, service loans and receive payments on loans and other obligations
as agent for any bank or thrift affiliate, whether the affiliate is located in
the same state or a different state. One effect of Riegle-Neal is to permit MBI
to acquire banks located in any state and to permit bank holding companies
located in any state to acquire banks and bank holding companies in Missouri.
There also have been a number of recent legislative and regulatory
proposals designed to strengthen the federal deposit insurance system and to
improve the overall financial stability of the United States banking system,
and to provide for other changes in the bank regulatory structure, including
proposals to reduce regulatory burdens on banking organizations and to expand
the nature of products and services banks and bank holding companies may
offer. It is not possible to predict whether or in what form these proposals
may be adopted in the future, and, if adopted, what their effect will be on
MBI.
RELATIONSHIP WITH INDEPENDENT ACCOUNTANTS
-----------------------------------------
KPMG Peat Marwick LLP served as MBI's independent accountants for
the year ended December 31, 1997 and continues to serve in such capacity.
Services provided in connection with the audit function included examination
of the annual consolidated financial statements, review and consultation
regarding filings with the Commission and other regulatory authorities and
consultation on financial accounting and reporting matters.
McGladrey & Pullen, LLP served as FSCM's independent accountants for
the year ended March 31, 1998 and continues to serve in such capacity.
Services provided in connection with the audit function included examination
of the annual consolidated financial statements and consultation on financial
accounting and reporting matters. McGladrey & Pullen, LLP intends to have a
representative present at the Special Meeting to answer relevant questions
regarding the Merger.
LEGAL MATTERS
-------------
Certain legal matters will be passed upon for MBI by Thompson
Coburn, St. Louis, Missouri and for FSCM by Winthrop & Weinstine, P.A.,
Minneapolis, Minnesota.
EXPERTS
-------
The consolidated financial statements of MBI as of December 31,
1997, 1996 and 1995, and for each of the years in the three-year period ended
December 31, 1997, incorporated by reference in MBI's Annual Report on Form
10-K have been incorporated by reference herein in reliance upon the report
of KPMG Peat Marwick LLP, independent certified public accountants, whose
report is incorporated by reference herein, and upon the authority of said
firm as experts in accounting and auditing.
-73-
<PAGE> 79
The consolidated financial statements of FSCM and its subsidiary at
March 31, 1998 and 1997, and for each of the years in the three-year period
ended March 31, 1998, included in FSCM's Annual Report on Form 10-K, have
been incorporated herein in reliance upon the report of McGladrey & Pullen,
LLP, independent auditors, whose report is incorporated by reference herein,
and upon the authority of such firm as experts in accounting and auditing.
OTHER MATTERS
-------------
The Board of Directors of FSCM, at the date hereof, is not aware of
any business to be presented at the Special Meeting other than that referred
to in the Notice of Special Meeting and discussed herein. If any other
matter should properly come before the Special Meeting, the persons named as
proxies will have discretionary authority to vote the shares represented by
proxies in accordance with their discretion and judgment as to the best
interests of FSCM.
SHAREHOLDER PROPOSALS
---------------------
If the Merger is approved and adopted, the other conditions to the
Merger are satisfied and the Merger is consummated, stockholders of FSCM will
become shareholders of MBI at the Effective Time. MBI shareholders may
submit to MBI proposals for formal consideration at the 1999 Annual Meeting
of MBI's shareholders and inclusion in MBI's proxy statement and proxy for
such meeting. All such proposals for the 1999 Annual Meeting of MBI's
shareholders must be received in writing by the Corporate Secretary at
Mercantile Bancorporation Inc., P.O. Box 524, St. Louis, Missouri
63166-0524 by November 16, 1998.
-74-
<PAGE> 80
ANNEX A
-------
[Letterhead of Howe Barnes Investments, Inc.]
-----------, 1998
June --, 1998
Board of Directors
Financial Services Corporation of the Midwest
224 18th Street
Rock Island, Illinois 61204
Members of the Board:
You have requested our opinion as to the fairness, from a financial point of
view, to the holders of the outstanding shares of common stock of Financial
Services Corporation of the Midwest ("FSCM") of the consideration (the
"Consideration") to be paid for the exchange of common shares in the merger
(the "Merger") of FSCM with Mercantile Bancorporation Inc. ("Mercantile"),
pursuant to the Agreement and Plan of Merger, dated April 13, 1998, between
FSCM, Ameribanc, Inc. ("Ameribanc"), and Mercantile (the "Merger Agreement").
Pursuant to the Merger Agreement, FSCM will merge into Ameribanc, a
wholly-owned subsidiary of Mercantile, and FSCM as a separate corporate
entity will cease. Each share of FSCM common stock outstanding immediately
prior to the effective time of the Merger (other than shares as to which
statutory dissenters' appraisal rights have been exercised) will be converted
into and exchanged for 6.8573 shares of Mercantile common stock. The maximum
aggregate number of shares of Mercantile common stock to be issued as part of
the Merger is 2,077,000. The terms of the Merger are more fully set forth in
the Merger Agreement.
For purposes of this opinion and in connection with our review of the
proposed transaction, we have, among other things:
1. Participated in discussions with representatives of FSCM
concerning FSCM's financial condition, businesses, assets,
earnings, prospects, and such senior management's views as to
its future financial performance;
2. Reviewed the terms of the Merger Agreement;
3. Reviewed certain publicly available financial statements, both
audited (where available) and unaudited, and related financial
information of FSCM and Mercantile, including those included in
their respective Annual Reports on Form 10-K for the past three
years and the
A-1
<PAGE> 81
respective Quarterly Reports on Form 10-Q for the periods ended
September 30, 1997 and June 30, 1997, FSCM's Quarterly Report on
Form 10-Q for the quarter ended December 31, 1997, as well as other
internally generated reports relating to asset/liability
management, asset quality, and so forth;
4. Reviewed certain financial forecasts and projections of FSCM
prepared by its management and reviewed publicly available
information, earnings estimates, and research reports available
for Mercantile;
5. Discussed and reviewed certain aspects of the past and current
business operations, financial condition, and future prospects
of FSCM with certain members of management;
6. Reviewed reported market prices and historical trading activity
of Mercantile common stock;
7. Reviewed certain aspects of the financial performance of FSCM
and Mercantile and compared such financial performance of FSCM
and Mercantile, together with stock market data relating to
Mercantile common stock, with similar data available for certain
other financial institutions and certain of their publicly
traded securities; and
8. Reviewed certain of the financial terms, to the extent publicly
available, of certain recent business combinations involving
other financial institutions.
We have assumed and relied, without independent verification, upon the
accuracy and completeness of all of the financial and other information that
has been provided to us by FSCM, Mercantile, and their respective
representatives, and of the publicly available information that was reviewed
by us. We are not experts in the evaluation of allowances for loan losses
and have not independently verified such allowances, and have relied on and
assumed that the aggregate allowances for loan losses set forth in the
balance sheets of each of FSCM and Mercantile at December 31, 1997 are
adequate to cover such losses and complied fully with applicable law,
regulatory policy and sound banking practice as of the date of such financial
statements. We were not retained to and we did not conduct a physical
inspection of any of the properties or facilities of FSCM or Mercantile, did
not make any independent evaluation or appraisal of the assets, liabilities
or prospects of FSCM or Mercantile, were not furnished with any such
evaluation or appraisal, and did not review any individual credit files. Our
opinion is necessarily based on economic, market, and other conditions as in
effect on, and the information made available to us as of, the date hereof.
Howe Barnes Investments, Inc. ("HBI"), as part of its investment banking
business, is regularly engaged in the valuation of banks and bank holding
companies, thrifts and thrift holding companies, and various other financial
services companies, in connection with mergers and acquisitions, initial and
secondary offerings of securities, and valuations for other purposes. In
rendering this fairness opinion, we have acted on behalf of the Board of
Directors of FSCM and will receive a fee for our services.
We are not expressing any opinion herein as to the prices at which shares of
Mercantile common stock issued in the Merger may trade if and when they are
issued or at any future time. Our opinion as expressed herein is limited to
the fairness, from a financial point of view, of the consideration to be
received by holders of FSCM common stock in the Merger and does not address
FSCM's underlying business decision to proceed with the Merger. We have been
retained on behalf of the Board of Directors of FSCM, and our opinion does
not constitute a recommendation to any holder of FSCM
A-2
<PAGE> 82
common stock as to how such holder should vote with respect to the Merger
Agreement at any meeting of holders of FSCM common stock.
Subject to the foregoing and based on our experience as investment bankers,
our activities as described above, and other factors we have deemed relevant,
we are of the opinion as of the date hereof that the Consideration is fair,
from a financial point of view, to the holders of FSCM common stock.
Sincerely,
Howe Barnes Investments, Inc.
--------------------------------------------
Daniel E. Coughlin, Senior Vice President
A-3
<PAGE> 83
ANNEX B
-------
Following is the text of the statutory appraisal right as set forth
in Section 262 of the DGCL.
SECTION 262. APPRAISAL RIGHTS
(a) Any stockholder of a corporation of this State who holds shares
of stock on the date of the making of a demand pursuant to subsection (d) of
this section with respect to such shares, who continuously holds such shares
through the effective date of the merger or consolidation, who has otherwise
complied with subsection (d) of this section and who has neither voted in
favor of the merger or consolidation nor consented thereto in writing
pursuant to Section 228 of this title shall be entitled to an appraisal by
the Court of Chancery of the fair value of the stockholder's shares of stock
under the circumstances described in subsections (b) and (c) of this section.
As used in this section, the word "stockholder" means a holder of record of
stock in a stock corporation and also a member of record of a nonstock
corporation; the words "stock" and "share" mean and include what is
ordinarily meant by those words and also membership or membership interest of
a member of a nonstock corporation; and the words "depository receipt" mean a
receipt or other instrument issued by a depository representing an interest
in one or more shares, or fractions thereof, solely of stock of a
corporation, which stock is deposited with the depository.
(b) Appraisal rights shall be available for the shares of any class
or series of stock of a constituent corporation in a merger or consolidation
to be effected pursuant to Sections 251 (other than a merger effected
pursuant to Sec. 251(g) of this title), 252, 254, 257, 258, 263 or 264 of this
title:
(1) Provided, however, that no appraisal rights under this
section shall be available for the shares of any class or series of stock,
which stock, or depository receipts in respect thereof, at the record date
fixed to determine the stockholders entitled to receive notice of and to vote
at the meeting of stockholders to act upon the agreement of merger or
consolidation, were either (i) listed on a national securities exchange or
designated as a national market system security on an interdealer quotation
system by the National Association of Securities Dealers, Inc., or (ii) held
of record by more than 2,000 holders; and further provided that no appraisal
rights shall be available for any shares of stock of the constituent
corporation surviving a merger if the merger did not require for its approval
the vote of the stockholders of the surviving corporation as provided in
subsection (f) of Section 251 of this title.
(2) Notwithstanding paragraph (1) of this subsection, appraisal
rights under this section shall be available for the shares of any class or
series of stock of a constituent corporation if the holders thereof are
required by the terms of an agreement of merger or consolidation pursuant to
Sections 251, 252, 254, 257, 258, 263 and 264 of this title to accept for
such stock anything except:
a. Shares of stock of the corporation surviving or
resulting from such merger or consolidation, or depository
receipts in respect thereof;
b. Shares of stock of any other corporation, or
depository receipts in respect thereof, which shares of stock
(or depository receipts in respect thereof) or depository
receipts at the effective date of the merger or consolidation
will be either listed on a national securities exchange or
designated as a national market
B-1
<PAGE> 84
system security on an interdealer quotation system by the National
Association of Securities Dealers, Inc., or held of record by more
than 2,000 holders;
c. Cash in lieu of fractional shares or fractional
depository receipts described in the foregoing subparagraphs a.
and b. of this paragraph; or
d. Any combination of the shares of stock, depository
receipts and cash in lieu of fractional shares or fractional
depository receipts described in the foregoing subparagraphs
a., b. and c. of this paragraph.
(3) In the event all of the stock of a subsidiary Delaware
corporation party to a merger effected under Section 253 of this title is not
owned by the parent corporation immediately prior to the merger, appraisal
rights shall be available for the shares of the subsidiary Delaware
corporation.
(c) Any corporation may provide in its certificate of incorporation
that appraisal rights under this section shall be available for the shares of
any class or series of its stock as a result of an amendment to its
certificate of incorporation, any merger or consolidation in which the
corporation is a constituent corporation or the sale of all or substantially
all of the assets of the corporation. If the certificate of incorporation
contains such a provision, the procedures of this section, including those
set forth in subsections (d) and (e) of this section, shall apply as nearly
as is practicable.
(d) Appraisal rights shall be perfected as follows:
(1) If a proposed merger or consolidation for which appraisal
rights are provided under this section is to be submitted for approval at a
meeting of stockholders, the corporation, not less than 20 days prior to the
meeting, shall notify each of its stockholders who was such on the record
date for such meeting with respect to shares for which appraisal rights are
available pursuant to subsections (b) or (c) hereof that appraisal rights are
available for any or all of the shares of the constituent corporations, and
shall include in such notice a copy of this section. Each stockholder
electing to demand the appraisal of his shares shall deliver to the
corporation, before the taking of the vote on the merger or consolidation, a
written demand for appraisal of his shares. Such demand will be sufficient
if it reasonably informs the corporation of the identity of the stockholder
and that the stockholder intends thereby to demand the appraisal of his
shares. A proxy or vote against the merger or consolidation shall not
constitute such a demand. A stockholder electing to take such action must do
so by a separate written demand as herein provided. Within 10 days after the
effective date of such merger or consolidation, the surviving or resulting
corporation shall notify each stockholder of each constituent corporation who
has complied with this subsection and has not voted in favor of or consented
to the merger or consolidation of the date that the merger or consolidation
has become effective; or
(2) If the merger or consolidation was approved pursuant to
Section 228 or Section 253 of this title, each constituent corporation,
either before the effective date of the merger or consolidation or within ten
days thereafter, shall notify each of the holders of any class or series of
stock of such constituent corporation who are entitled to appraisal rights of
the approval of the merger or consolidation and that appraisal rights are
available for any or all shares of such class or series of stock of such
constituent corporation, and shall include in such notice a copy of this
section; provided that if the notice is given on or after the effective date
of the merger or consolidation, such notice shall be given by the surviving
or resulting corporation to all such holders of any class or series of stock
of a constituent corporation that are entitled to appraisal rights. Such
notice may, and, if given on or after the effective date
B-2
<PAGE> 85
of the merger or consolidation, shall, also notify such stockholders of the
effective date of the merger or consolidation. Any stockholder entitled to
appraisal rights may, within 20 days after the date of mailing of such notice,
demand in writing from the surviving or resulting corporation the appraisal of
such holder's shares. Such demand will be sufficient if it reasonably informs
the corporation of the identity of the stockholder and that the stockholder
intends thereby to demand the appraisal of such holder's shares. If such
notice did not notify stockholders of the effective date of the merger or
consolidation, either (i) each such constituent corporation shall send a
second notice before the effective date of the merger or consolidation
notifying each of the holders of any class or series of stock of such
constituent corporation that are entitled to appraisal rights of the
effective date of the merger or consolidation or (ii) the surviving or
resulting corporation shall send such a second notice to all such holders on
or within 10 days after such effective date; provided, however, that if such
second notice is sent more than 20 days following the sending of the first
notice, such second notice need only be sent to each stockholder who is
entitled to appraisal rights and who has demanded appraisal of such holder's
shares in accordance with this subsection. An affidavit of the secretary of
assistant secretary or of the transfer agent of the corporation that is
required to give either notice that such notice has been given shall, in the
absence of fraud, be prima facie evidence of the facts stated therein. For
purposes of determining the stockholders entitled to receive either notice,
each constituent corporation may fix, in advance, a record date that shall be
not more than ten days prior to the date the notice is given, provided, that
if the notice is given on or after the effective date of the merger or
consolidation, the record date shall be such effective date. If no record
date is fixed and the notice is given prior to the effective date, the record
date shall be the close of business on the day next preceding the day on
which the notice is given.
(e) Within 120 days after the effective date of the merger or
consolidation, the surviving or resulting corporation or any stockholder who
has complied with subsections (a) and (d) hereof and who is otherwise
entitled to appraisal rights, may file a petition in the Court of Chancery
demanding a determination of the value of the stock of all such stockholders.
Notwithstanding the foregoing, at any time within 60 days after the effective
date of the merger or consolidation, any stockholder shall have the right to
withdraw his demand for appraisal and to accept the terms offered upon the
merger or consolidation. Within 120 days after the effective date of the
merger or consolidation, any stockholder who has complied with the
requirements of subsections (a) and (d) hereof, upon written request, shall
be entitled to receive from the corporation surviving the merger or resulting
from the consolidation a statement setting forth the aggregate number of
shares not voted in favor of the merger or consolidation and with respect to
which demands for appraisal have been received and the aggregate number of
holders of such shares. Such written statement shall be mailed to the
stockholder within 10 days after his written request for such a statement is
received by the surviving or resulting corporation or within 10 days after
expiration of the period for delivery of demands for appraisal under
subsection (d) hereof, whichever is later.
(f) Upon the filing of any such petition by a stockholder, service
of a copy thereof shall be made upon the surviving or resulting corporation,
which shall within 20 days after such service file in the office of the
Register in Chancery in which the petition was filed a duly verified list
containing the names and addresses of all stockholders who have demanded
payment for their shares and with whom agreements as to the value of their
shares have not been reached by the surviving or resulting corporation. If
the petition shall be filed by the surviving or resulting corporation, the
petition shall be accompanied by such a duly verified list. The Register in
Chancery, if so ordered by the Court, shall give notice of the time and place
fixed for the hearing of such petition by registered or certified mail to the
surviving or resulting corporation and to the stockholders shown on the list
at the addresses therein stated. Such notice shall also be given by one or
more publications at least 1 week before the day of the hearing, in a
newspaper of general circulation published in the City of Wilmington,
Delaware or such publication as the Court deems
B-3
<PAGE> 86
advisable. The forms of the notices by mail and by publication shall be
approved by the Court, and the costs thereof shall be borne by the surviving or
resulting corporation.
(g) At the hearing on such petition, the Court shall determine the
stockholders who have complied with this section and who have become entitled
to appraisal rights. The Court may require the stockholders who have
demanded an appraisal for their shares and who hold stock represented by
certificates to submit their certificates of stock to the Register in
Chancery for notation thereon of the pendency of the appraisal proceedings;
and if any stockholder fails to comply with such direction, the Court may
dismiss the proceedings as to such stockholder.
(h) After determining the stockholders entitled to an appraisal,
the Court shall appraise the shares, determining their fair value exclusive
of any element of value arising from the accomplishment or expectation of the
merger or consolidation, together with a fair rate of interest, if any, to be
paid upon the amount determined to be the fair value. In determining such
fair value, the Court shall take into account all relevant factors. In
determining the fair rate of interest, the Court may consider all relevant
factors, including the rate of interest which the surviving or resulting
corporation would have had to pay to borrow money during the pendency of the
proceeding. Upon application by the surviving or resulting corporation or by
any stockholder entitled to participate in the appraisal proceeding, the
Court may, in its discretion, permit discovery or other pretrial proceedings
and may proceed to trial upon the appraisal prior to the final determination
of the stockholder entitled to an appraisal. Any stockholder whose name
appears on the list filed by the surviving or resulting corporation pursuant
to subsection (f) of this section and who has submitted his certificates of
stock to the Register in Chancery, if such is required, may participate fully
in all proceedings until it is finally determined that he is not entitled to
appraisal rights under this section.
(i) The Court shall direct the payment of the fair value of the
shares, together with interest, if any, by the surviving or resulting
corporation to the stockholders entitled thereto. Interest may be simple or
compound, as the Court may direct. Payment shall be so made to each such
stockholder, in the case of holders of uncertificated stock forthwith, and
the case of holders of shares represented by certificates upon the surrender
to the corporation of the certificates representing such stock. The Court's
decree may be enforced as other decrees in the Court of Chancery may be
enforced, whether such surviving or resulting corporation be a corporation of
this State or of any other state.
(j) The costs of the proceeding may be determined by the Court and
taxed upon the parties as the Court deems equitable in the circumstances.
Upon application of a stockholder, the Court may order all or a portion of
the expenses incurred by any stockholder in connection with the appraisal
proceeding, including, without limitation, reasonable attorney's fees and the
fees and expenses of experts, to be charged pro rata against the value of all
of the shares entitled to an appraisal.
(k) From and after the effective date of the merger or
consolidation, no stockholder who has demanded his appraisal rights as
provided in subsection (d) of this section shall be entitled to vote such
stock for any purpose or to receive payment of dividends or other
distributions on the stock (except dividends or other distributions payable
to stockholders of record at a date which is prior to the effective date of
the merger or consolidation); provided, however, that if no petition for an
appraisal shall be filed within the time provided in subsection (e) of this
section, or if such stockholder shall deliver to the surviving or resulting
corporation a written withdrawal of his demand for an appraisal and an
acceptance of the merger or consolidation, either within 60 days after the
effective date of the merger or consolidation as provided in subsection (e)
of this section or thereafter with the written approval of the corporation,
then the right of such stockholder to an appraisal shall cease.
Notwithstanding the foregoing, no appraisal
B-4
<PAGE> 87
proceeding in the Court of Chancery shall be dismissed as to any stockholder
without the approval of the Court, and such approval may be conditioned upon
such terms as the Court deems just.
(l) The shares of the surviving or resulting corporation to which
the shares of such objecting stockholders would have been converted had they
assented to the merger or consolidation shall have the status of authorized
and unissued shares of the surviving or resulting corporation.
B-5
<PAGE> 88
PROXY FINANCIAL SERVICES CORPORATION OF THE MIDWEST
224 18TH STREET, SUITE 202
ROCK ISLAND, ILLINOIS 61201
For the Special Meeting of Stockholders to be held ------------, 1998
THIS PROXY IS SOLICITED BY THE BOARD OF DIRECTORS
The undersigned stockholder(s) of FINANCIAL SERVICES
CORPORATION OF THE MIDWEST ("FSCM"), does hereby nominate, constitute
and appoint Douglas M. Kratz and Perry B. Hansen or each of them (with full
power to act alone), true and lawful proxies and attorneys-in-fact, with full
power of substitution, for the undersigned and in the name, place and stead
of the undersigned to vote all of the shares of common stock, $0.50 par
value, of FSCM standing in the name of the undersigned on its books at the
close of business on ---------, 1998 at the Special Meeting of Stockholders
to be held at -------------------- ----------------------------, on -------,
- -----------, 1998, at ------ -.m. Central Time, and at any adjournments or
postponements thereof, with all the powers the undersigned would possess if
personally present, as follows:
1. To consider and vote upon the adoption and approval of the Agreement
and Plan of Merger, dated April 13, 1998 (the "Merger Agreement"), pursuant
to which FSCM will be merged with and into Ameribanc, Inc., a Missouri
corporation and wholly owned subsidiary of Mercantile Bancorporation Inc.
("MBI"), in a transaction that would result in the business and operations of
FSCM being continued through such wholly owned subsidiary, and whereby, upon
consummation of the merger, each share of FSCM common stock will be converted
into the right to receive 6.8573 shares of MBI common stock, as set forth in
detail in the accompanying Proxy Statement/Prospectus.
/ / FOR / / AGAINST / / ABSTAIN
2. To transact such other business as may properly come before the
Special Meeting or any adjournments or postponements thereof.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE FOR APPROVAL AND ADOPTION OF THE
MERGER AGREEMENT.
The undersigned hereby revokes any other proxies to vote at such
meeting and hereby ratifies and confirms all that the proxies and
attorneys-in-fact, or each of them, appointed hereunder may lawfully do by
virtue hereof. Said proxies and attorneys-in-fact, without limiting their
general authority, are specifically authorized to vote in accordance with
their best judgment with respect to all matters incident to the conduct of
the Special Meeting.
THIS PROXY, WHEN PROPERLY EXECUTED, WILL BE VOTED IN THE
MANNER DIRECTED HEREIN BY THE UNDERSIGNED STOCKHOLDER(S). IF NO
DIRECTION IS GIVEN HEREIN, THIS PROXY WILL BE VOTED "FOR" THE
PROPOSAL LISTED ABOVE.
PLEASE PROMPTLY COMPLETE, DATE, SIGN AND MAIL THIS PROXY.
RETURN USING THE ENVELOPE PROVIDED
FINANCIAL SERVICES CORPORATION OF THE MIDWEST SPECIAL MEETING
Check appropriate box Date-------------------- NO. OF SHARES
Indicate changes below:
Address Change? / / Name Change? / /
--------------------------------------------------
--------------------------------------------------
Signature(s) In Box
When signing as attorney, executor, administrator,
trustee or guardian, please give your full title.
If more than one person holds the power to vote
the same shares, all must sign. All joint owners
must sign. The undersigned hereby acknowledges
receipt of the notice of Special Meeting and the
Proxy Statement/Prospectus (with all enclosures
and attachments), dated --------, 1998, relating
to the Special Meeting.
<PAGE> 89
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
------------------------------------------
Item 20. Indemnification of Officers and Directors
- ---------------------------------------------------
Sections 351.355(1) and (2) of The General and Business Corporation
Law of the State of Missouri provide that a corporation may indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding by reason of the
fact that he is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses, judgments, fines
and amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good faith and
in a manner he reasonably believed to be in or not opposed to the best
interests of the corporation and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful,
except that, in the case of an action or suit by or in the right of the
corporation, the corporation may not indemnify such persons against judgments
and fines and no person shall be indemnified as to any claim, issue or matter
as to which such person shall have been adjudged to be liable for negligence
or misconduct in the performance of his duty to the corporation, unless and
only to the extent that the court in which the action or suit was brought
determines upon application that such person is fairly and reasonably
entitled to indemnity for proper expenses. Section 351.355(3) provides that,
to the extent that a director, officer, employee or agent of the corporation
has been successful in the defense of any such action, suit or proceeding or
any claim, issue or matter therein, he shall be indemnified against expenses,
including attorneys' fees, actually and reasonably incurred in connection
with such action, suit or proceeding. Section 351.355(7) provides that a
corporation may provide additional indemnification to any person
indemnifiable under subsection (1) or (2), provided such additional
indemnification is authorized by the corporation's articles of incorporation
or an amendment thereto or by a stockholder-approved bylaw or agreement, and
provided further that no person shall thereby be indemnified against conduct
which was finally adjudged to have been knowingly fraudulent, deliberately
dishonest or willful misconduct or which involved an accounting for profits
pursuant to Section 16(b) of the Securities Exchange Act of 1934.
Article 12 of the Restated Articles of Incorporation of MBI provides
that MBI shall extend to its directors and executive officers the
indemnification specified in subsections (1) and (2) and the additional
indemnification authorized in subsection (7) and that it may extend to other
officers, employees and agents such indemnification and additional
indemnification.
Pursuant to directors' and officers' liability insurance policies,
with total annual limits of $45,000,000, MBI's directors and officers are
insured, subject to the limits, retention, exceptions and other terms and
conditions of such policy, against liability for any actual or alleged error,
misstatement, misleading statement, act or omission, or neglect or breach of
duty by the directors or officers of MBI, individually or collectively, or
any matter claimed against them solely by reason of their being directors or
officers of MBI.
II-1
<PAGE> 90
Item 21. Exhibits and Financial Statement Schedules
- ----------------------------------------------------
A. Exhibits. See Exhibit Index.
--------
B. Financial Statement Schedules. Not Applicable.
-----------------------------
Item 22. Undertakings
- ----------------------
(1) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of MBI pursuant to the foregoing provisions, or
otherwise, MBI 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
MBI of expenses incurred or paid by a director, officer or controlling person
of MBI 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, MBI 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 of 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.
(2) MBI hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of MBI's annual
report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange
Act of 1934 (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to 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.
(3) MBI hereby undertakes as follows: that 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.
(4) MBI 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 used in connection with an
offering of securities subject to Rule 415 (Section 230.415 of this chapter),
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 offering therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(5) MBI hereby undertakes to respond to requests for information
that is incorporated by reference into the prospectus pursuant to Item 4,
10(b), 11 or 13 of this Form, within one
II-2
<PAGE> 91
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 the documents filed subsequent to the effective date of the
Registration Statement through the date of responding to the request.
(6) MBI 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.
(7) MBI hereby undertakes:
(a) To file during any period in which offers and sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the
most recent post-effective amendment thereof), which
individually or in the aggregate, represent a fundamental
change in the information set forth in the Registration
Statement; notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form
of prospectus filed with the Commission pursuant to Rule 424(b)
if, in the aggregate, the changes in volume and price represent
no more than a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table
in the effective Registration Statement.
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement.
(b) That for the purpose 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.
(c) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
II-3
<PAGE> 92
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 St.
Louis, State of Missouri, on June 11, 1998.
MERCANTILE BANCORPORATION INC.
By /s/ Thomas H. Jacobsen
--------------------------------------------------
Thomas H. Jacobsen, Chairman of the Board,
President and Chief Executive Officer
POWER OF ATTORNEY
-----------------
We, the undersigned officers and directors of Mercantile
Bancorporation Inc., as of June 11, 1998 hereby severally and individually
constitute and appoint Thomas H. Jacobsen and John Q. Arnold, and each of
them, the true and lawful attorneys and agents of each of us to execute in the
name, place and stead of each of us (individually and in any capacity stated
below) any and all amendments to this Registration Statement on Form S-4,
registering the offering by Mercantile Bancorporation Inc. of shares of its
common stock, and the preferred share purchase rights which trade therewith,
with respect to the acquisition of Financial Services Corporation of the
Midwest, and all instruments necessary or advisable in connection therewith
and to file the same with the Securities and Exchange Commission, each of said
attorneys and agents to have the power to act with or without the others and
to have full power and authority to do and perform in the name and on behalf
of each of the undersigned every act whatsoever necessary or advisable to be
done in the premises as fully and to all intents and purposes as any of the
undersigned might or could do in person, and we hereby ratify and confirm our
signatures as they may be signed by our said attorneys and agents or each of
them to any and all such amendments and instruments.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and as of June 11, 1998.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/s/ Thomas H. Jacobsen Chairman of the Board,
- ------------------------------ President and Chief Executive
Thomas H. Jacobsen Officer
Principal Executive Officer
/s/ John Q. Arnold Vice Chairman and
- ------------------------------ Chief Financial Officer
John Q. Arnold
Principal Financial Officer
II-4
<PAGE> 93
Signature Title
--------- -----
/s/ Michael T. Normile Senior Vice President - Finance
- ------------------------------ and Control
Michael T. Normile
Principal Accounting Officer
/s/ Richard E. Beumer Director
- ------------------------------
Richard E. Beumer
Director
- ------------------------------
Harry M. Cornell, Jr.
/s/ Henry Givens, Jr. Director
- ------------------------------
Dr. Henry Givens, Jr.
/s/ William A. Hall Director
- ------------------------------
William A. Hall
/s/ Frank Lyon, Jr. Director
- ------------------------------
Frank Lyon, Jr.
/s/ Robert W. Murray Director
- ------------------------------
Robert W. Murray
/s/ Harvey Saligman Director
- ------------------------------
Harvey Saligman
/s/ Craig D. Schnuck Director
- ------------------------------
Craig D. Schnuck
Director
- ------------------------------
Alvin J. Siteman
II-5
<PAGE> 94
Signature Title
--------- -----
/s/ Patrick T. Stokes Director
- ------------------------------
Patrick T. Stokes
/s/ John A. Wright Director
- ------------------------------
John A. Wright
</TABLE>
II-6
<PAGE> 95
<TABLE>
EXHIBIT INDEX
<CAPTION>
Exhibit
Number Description Page
- ------ ----------- ----
<C> <S> <C>
2.1 Agreement and Plan of Merger, dated as of April 13, 1998, by and among MBI, Ameribanc and FSCM.
2.2 Form of Voting Agreement, dated as of April 13, 1998, and entered into by and between MBI and
certain of the stockholders of FSCM.
3.1(a) MBI's Restated Articles of Incorporation, as amended and currently in effect, filed as Exhibit 3.1(a)
to MBI's Quarterly Report on Form 10-Q for the quarter ended March 31, 1998, are incorporated herein by
reference.
3.1(b) Third Amended and Restated Certificate of Designation, Preferences and rights of Series B Junior
Participating Stock of MBI, filed as part of Exhibit 1 to MBI's Registration Statement on Form 8-A
dated May 27, 1998, is incorporated herein by reference.
3.2 MBI's by-laws, as amended and currently in effect, filed as Exhibit 3.2 to Amendment No. 2 to MBI's
Registration Statement on Form S-4 (No. 333-17757), are incorporated herein by reference.
4.1 Form of Indenture Regarding Subordinated Securities between MBI and The First National Bank of
Chicago, Trustee, filed on March 31, 1992 as Exhibit 4.1 to MBI's Current Report on Form 8-K dated
September 24, 1992, is incorporated herein by reference.
4.2 Rights Agreement, dated as of May 20, 1998, between MBI and Mercantile Bank, as Rights Agent
(including as exhibits thereto the form of Certificate of Designation, Preferences and Rights of
Series B Junior Participating Preferred Stock and the form of Right Certificate), filed as Exhibit 1
to MBI's Registration Statement on Form 8-A dated May 27, 1998 is incorporated herein by reference.
4.3 Form of Indenture Regarding Senior Debt Securities, filed as Exhibit 4.1 to MBI's Registration
Statement on Form S-3 (No. 333-25775), is incorporated herein by reference.
4.4 Form of Indenture Regarding Subordinated Debt Securities, filed as Exhibit 4.2 to MBI's Registration
Statement on Form S-3 (No. 333-25775), is incorporated herein by reference.
4.5 Indenture, dated February 4, 1997, First Supplemental Indenture, dated February 4, 1997, and
Supplemental Indenture of First Supplemental Indenture, dated May 22, 1997, between MBI, as issuer,
and The Chase Manhattan Bank, as Indenture Trustee, filed as Exhibits 4.5, 4.6 and 4.12,
respectively, to MBI's Registration Statement on Form S-4 (No. 333-25131), are incorporated herein
by reference.
<PAGE> 96
Exhibit
Number Description Page
- ------ ----------- ----
5.1 Opinion of Thompson Coburn as to the legality of the securities being registered.
8.1 Opinion of Thompson Coburn regarding certain tax matters in the Merger.
10.1 The Mercantile Bancorporation Inc. 1987 Stock Option Plan, as amended, filed as Exhibit 10-3 to
MBI's Annual Report on Form 10-K for the year ended December 31, 1989, is incorporated herein by
reference.
10.2 The Mercantile Bancorporation Inc. Amended and Restated Executive Incentive Compensation Plan,
filed as Annex H to MBI's definitive Proxy Statement for the 1997 Annual Meeting of Shareholders, is
incorporated herein by reference.
10.3 The Mercantile Bancorporation Inc. Employee Stock Purchase Plan, filed as Exhibit 10-7 to MBI's
Annual Report on Form 10-K for the year ended December 31, 1989, is incorporated herein by
reference.
10.4 The Mercantile Bancorporation Inc. 1991 Employee Incentive Plan, filed as Exhibit 10-7 to MBI's
Annual Report on Form 10-K for the year ended December 31, 1990, is incorporated herein by
reference.
10.5 Amendment Number One to the Mercantile Bancorporation Inc. 1991 Employee Incentive Plan, filed as
Exhibit 10-6 to MBI's Annual Report on Form 10-K for the year ended December 31, 1994, is
incorporated herein by reference.
10.6 The Mercantile Bancorporation Inc. Amended and Restated Stock Incentive Plan, filed as Annex G to
MBI's definitive Proxy Statement for the 1997 Annual Meeting of Shareholders, is incorporated herein
by reference.
10.7 The Mercantile Bancorporation Inc. 1994 Stock Incentive Plan for Non-Employee Directors, filed as
Appendix E to MBI's definitive Proxy Statement for the 1994 Annual Meeting of Shareholders, is
incorporated herein by reference.
10.8 The Mercantile Bancorporation Inc. Amended and Restated Voluntary Deferred Compensation Plan,
filed as Exhibit 10.1 to MBI's Registration Statement on Form S-8 (file no. 333-47713), is
incorporated herein by reference.
10.9 Employment Agreement for Thomas H. Jacobsen, as amended and restated, filed as Exhibit 10-9 to
MBI's Annual Report on Form 10-K for the year ended December 31, 1997, is incorporated herein by
reference.
10.10 Form of Change of Control Employment Agreement for John W. McClure, W. Randolph Adams, John Q.
Arnold and Certain Other Executive Officers, filed as Exhibit 10-10 to MBI's Annual Report on Form
10-K for the year ended December 31, 1989, is incorporated herein by reference.
<PAGE> 97
Exhibit
Number Description Page
- ------ ----------- ----
10.11 The Mercantile Bancorporation Inc. Supplemental Retirement Plan, filed as Exhibit 10-12 to MBI's
Annual Report on Form 10-K for the year ended December 31, 1992, is incorporated herein by
reference.
10.12 Mercantile Bancorporation Inc. Voluntary Deferred Compensation Plan for Non-Employee Affiliate
Directors and Advisory Directors, filed as Exhibit 10.3 to MBI's Registration Statement on Form S-8
(File No. 333-47713), is incorporated herein by reference.
10.13 Mercantile Bancorporation Inc. Amended and Restated Stock Incentive Plan for Non-Employee
Directors, filed as Exhibit 10.2 to MBI's Registration Statement on Form S-8 (File No. 333-47713), is
incorporated herein by reference.
10.14 Agreement and Plan of Reorganization, dated October 27, 1996, by and among MBI, Ameribanc, Inc. and
Mark Twain Bancshares, Inc., filed as Exhibit 2.1 to MBI's Current Report on Form 8-K filed November
6, 1996, is incorporated herein by reference.
10.15 Amendment to Agreement and Plan of Reorganization, dated January 24, 1997, by and among MBI,
Ameribanc, Inc. and Mark Twain Bancshares, Inc., filed as Exhibit 10-16 to Amendment No. 2 to MBI's
Registration Statement on Form S-4 (File No. 333-17757), is incorporated herein by reference.
10.16 Stock Option Agreement, dated October 27, 1996, by and between MBI, as grantee, and Mark Twain
Bancshares, Inc., as issuer, filed as Exhibit 2.2 to MBI's Current Report on Form 8-K filed on
November 6, 1996, is incorporated herein by reference.
10.17 Agreement and Plan of Reorganization, dated December 22, 1996, by and between MBI and Roosevelt
Financial Group, Inc., filed as Exhibit 2.1 to MBI's Current Report on Form 8-K filed on December
30, 1996, is incorporated herein by reference.
10.18 Stock Option Agreement, dated December 22, 1996, by and between MBI, as grantee, and Roosevelt
Financial Group, Inc., as issuer, filed as Exhibit 2.1 to MBI's Current Report on Form 8-K filed on
December 30, 1996, is incorporated herein by reference.
10.19 Employment Agreement for Alvin J. Siteman, dated November 18, 1996, filed as Exhibit 10.3 to MBI's
Quarterly Report on Form 10-Q for the quarter ended March 31, 1997, is incorporated herein by
reference.
10.20 Employment Agreement for John P. Dubinsky, dated October 27, 1996, filed as Exhibit 10.4 to MBI's
Quarterly Report on Form 10-Q for the quarter ended March 31, 1997, is incorporated herein by
reference.
<PAGE> 98
Exhibit
Number Description Page
- ------ ----------- ----
10.21 Employment Agreement for Stanley J. Bradshaw, dated December 22, 1996, filed as Exhibit 10 to MBI's
Quarterly Report on Form 10-Q for the quarter ended June 30, 1997, is incorporated herein by
reference.
10.22 Agreement and Plan of Reorganization, dated January 30, 1998, by and among MBI, Ameribanc, Inc. and
Firstbank of Illinois Co., filed as Exhibit 2.1 to MBI's Current Report on Form 8-K filed on
February 3, 1998, is incorporated herein by reference.
23.1 Consent of KPMG Peat Marwick LLP with regard to the use of its report on MBI's financial statements.
23.2 Consent of McGladrey & Pullen, LLP with regard to the use of its report on FSCM's financial
statements.
23.3 Consent of Howe Barnes Investments, Inc.
23.4 Consent of Thompson Coburn (included in Exhibit 5.1).
24.1 Power of Attorney (included on signature page hereto).
</TABLE>
<PAGE> 1
===============================================================================
AGREEMENT AND PLAN OF MERGER
among
MERCANTILE BANCORPORATION INC.,
a Missouri corporation
and
AMERIBANC, INC.,
a Missouri corporation
and
FINANCIAL SERVICES CORPORATION
OF THE MIDWEST
a Delaware corporation
-------------------------------------------------
April 13, 1998
===============================================================================
<PAGE> 2
<TABLE>
TABLE OF CONTENTS
<CAPTION>
Page
<S> <C>
Recitals 1
ARTICLE I
---------
THE MERGER
1.01 The Merger 1
1.02 Closing 1
1.03 Effective Time 1
1.04 Additional Actions 2
1.05 Articles of Incorporation and By-Laws 2
1.06 Board of Directors and Officers 2
1.07 Conversion of Securities 2
1.08 Exchange Procedures 3
1.09 No Fractional Shares 4
1.10 Dissenting Shares 4
1.11 Closing of Stock Transfer Books 5
1.12 Anti-Dilution 5
1.13 Reservation of Right to Revise Transaction 5
1.14 Material Adverse Effect 6
ARTICLE II
----------
REPRESENTATIONS AND WARRANTIES OF SELLER
2.01 Organization and Authority 6
2.02 Subsidiaries 6
2.03 Capitalization 7
2.04 Authorization 8
2.05 Seller Financial Statements 9
2.06 Seller Reports 9
2.07 Title to and Condition of Assets 9
2.08 Real Property 10
2.09 Taxes 11
2.10 Material Adverse Effect 12
2.11 Loans, Commitments and Contracts 12
2.12 Absence of Defaults 14
2.13 Litigation and Other Proceedings 14
2.14 Directors' and Officers' Insurance 15
2.15 Compliance with Laws 15
2.16 Labor 17
2.17 Material Interests of Certain Persons 17
2.18 Allowance for Loan and Lease Losses; Non-Performing Assets; Financial Assets 17
2.19 Employee Benefit Plans 18
- i -
<PAGE> 3
Page
----
<S> <C>
2.20 Conduct of Seller to Date 20
2.21 Absence of Undisclosed Liabilities 20
2.22 Proxy Statement, Etc. 21
2.23 Registration Obligations 21
2.24 Tax, Regulatory and Accounting Matters 21
2.25 Brokers and Finders 22
2.26 Interest Rate Risk Management Instruments 22
2.27 Accuracy of Information 22
2.28 Year 2000 Compliant 22
ARTICLE III
-----------
REPRESENTATIONS AND WARRANTIES OF THE BUYERS
3.01 Organization and Authority 23
3.02 Capitalization of Mercantile 23
3.03 Authorization 24
3.04 Mercantile Financial Statements 25
3.05 Mercantile Reports 25
3.06 Material Adverse Effect 25
3.07 Registration Statement, Etc. 25
3.08 Brokers and Finders 26
3.09 Accuracy of Information 26
ARTICLE IV
----------
CONDUCT OF BUSINESSES PRIOR TO THE EFFECTIVE TIME
4.01 Conduct of Businesses Prior to the Effective Time 26
4.02 Forbearances of Seller 26
4.03 Forbearances of the Buyers 29
ARTICLE V
---------
ADDITIONAL AGREEMENTS
5.01 Access and Information; Due Diligence 29
5.02 Registration Statement; Regulatory Matters 29
5.03 Stockholder Approval 30
5.04 Current Information 30
5.05 Conforming Entries 31
5.06 Environmental Reports 31
5.07 Agreements of Affiliates 32
5.08 Expenses 32
- ii -
<PAGE> 4
Page
----
<S> <C>
5.09 Miscellaneous Agreements and Consents 32
5.10 Employee Agreements and Benefits 33
5.11 Press Releases 33
5.12 State Takeover Statutes 34
5.13 Directors' and Officers' Indemnification 34
5.14 Tax Opinion Certificates 34
5.15 Employee Stock Options 34
5.16 Best Efforts to Insure Pooling 35
ARTICLE VI
----------
CONDITIONS
6.01 Conditions to Each Party's Obligation To Effect the Merger 35
6.02 Conditions to Obligations of Seller 36
6.03 Conditions to Obligations of the Buyers 37
ARTICLE VII
-----------
TERMINATION, AMENDMENT AND WAIVER
7.01 Termination 38
7.02 Effect of Termination 38
7.03 Amendment 38
7.04 Waiver 39
ARTICLE VIII
------------
GENERAL PROVISIONS
8.01 Non-Survival of Representations, Warranties and Agreements 39
8.02 Indemnification 39
8.03 No Assignment; Successors and Assigns 39
8.04 Severability 40
8.05 No Implied Waiver 40
8.06 Headings 40
8.07 Entire Agreement 40
8.08 Counterparts 40
8.09 Notices 40
8.10 Governing Law 42
8.11 Knowledge 42
</TABLE>
- iii -
<PAGE> 5
LIST OF EXHIBITS
Exhibit A - Affiliate Letter
Exhibit B - Director/Officer Certificate
Exhibit C - Buyers' Opinion
Exhibit D - Seller's Opinion
LIST OF SCHEDULES
Schedule 2.01 Articles/Bylaws
Schedule 2.02 Subsidiaries/Equity Securities
Schedule 2.03 Seller Stock Plans
Schedule 2.04(b) Authorizations
Schedule 2.05(a) Seller Financial Statements
Schedule 2.07(a) Exceptions to Title
Schedule 2.07(b) Transferred Properties and Assets
Schedule 2.07(c) Condition of Property
Schedule 2.08(a) Owned Real Property/Leased Real Property
Schedule 2.08(c) Interests in Real Property
Schedule 2.09 Taxes
Schedule 2.11(a) Deposits/Commitments
Schedule 2.11(b) Contracts
Schedule 2.11(c) Insurance
Schedule 2.11(f) Loans
Schedule 2.13 Litigation
Schedule 2.15(c) Compliance with Laws
Schedule 2.17 Material Interests of Affiliates
Schedule 2.18(c) Real Estate Acquired through Foreclosure and
Repossession
Schedule 2.18(f) Investment Securities
Schedule 2.19(a) Employee Benefit Plans
Schedule 2.19(d) Post-Retirement Health and Medical Benefits
Schedule 2.19(f) Change in Control Payments
Schedule 2.20 Conduct of Seller
Schedule 2.21(a) Undisclosed Liabilities
Schedule 2.26(a) Derivative Securities
Schedule 2.28 Material Computer Software, Firmware and Hardware
Schedule 4.02 Forbearances of Seller
Schedule 5.07 Affiliates
- iv -
<PAGE> 6
AGREEMENT AND PLAN OF MERGER
----------------------------
This AGREEMENT AND PLAN OF MERGER (this "Agreement"), made and entered
into as of April 13, 1998 by and among Mercantile Bancorporation Inc., a
Missouri corporation ("Mercantile"), Ameribanc, Inc., a Missouri corporation
("Merger Sub" and, collectively, with Mercantile, the "Buyers"), and
Financial Services Corporation of the Midwest ("FSCM"), a Delaware
corporation ("Seller").
WHEREAS, Merger Sub is a wholly owned subsidiary of Mercantile, and
each of Mercantile and Merger Sub is a registered bank holding company under
the Bank Holding Company Act of 1956, as amended (the "BHCA"); and
WHEREAS, Seller is registered as a bank holding company under the BHCA;
and
WHEREAS, the respective Boards of Directors of Seller and Merger Sub
and the Executive Committee of the Board of Directors of Mercantile have
approved the merger (the "Merger") of Seller with and into Merger Sub
pursuant to the terms and subject to the conditions contained in this
Agreement; and
WHEREAS, the parties desire to provide certain undertakings,
conditions, representations, warranties and covenants in connection with the
transactions contemplated by this Agreement.
NOW THEREFORE, in consideration of the premises and the
representations, warranties and agreements herein contained, the parties
agree as follows:
ARTICLE I
---------
THE MERGER
1.01 The Merger. Subject to the terms and conditions of this
----------
Agreement, Seller shall be merged with and into Merger Sub in accordance with
Chapter 351 of the Missouri Revised Statutes (the "Missouri Statute") and
Section 252 of the Delaware General Corporation Law (the "DGCL"), and the
separate corporate existence of Seller shall cease. Merger Sub shall be the
surviving corporation in the Merger (sometimes hereinafter referred to as the
"Surviving Corporation") and shall continue to be governed by the laws of the
State of Missouri.
1.02 Closing. The closing (the "Closing") of the Merger, unless the
-------
parties hereto shall otherwise mutually agree, shall take place at the
offices of Mercantile in St. Louis, Missouri, at 10:00 am, local time, on the
date that the Effective Time (as defined in Section 1.03) occurs (the
"Closing Date").
1.03 Effective Time. The Merger shall become effective (the
--------------
"Effective Time") upon the later of (i) the issuance of a Certificate of
Merger by the Office of the Secretary of State of the State of Missouri and
(ii) the filing of a Certificate of Merger with the Office of the Secretary
of State of Delaware. Unless otherwise mutually agreed in writing by Buyers
and Seller, subject to the terms and
<PAGE> 7
conditions of this Agreement, the Effective Time shall occur on such date as
Buyers shall notify Seller in writing (such notice to be at least five
business days in advance of the Effective Time) but (A) not earlier than the
satisfaction of all conditions set forth in Section 6.01(a) and 6.01(b) (the
"Approval Date") and (B) not later than the first business day of the first
full calendar month commencing at least five business days after the Approval
Date. On the Closing Date, the parties hereto will cause the Merger to be
consummated by delivering to the Secretary of State of the State of Missouri
and the Secretary of State of the State of Delaware, for filing, Articles and
a Certificate of Merger, respectively, in such form as required by, and
executed and acknowledged in accordance with, the relevant provisions of the
Missouri Statute and the DGCL.
1.04 Additional Actions. If, at any time after the Effective Time,
------------------
the Surviving Corporation shall consider or be advised that any further
deeds, assignments or assurances in law or any other acts are necessary or
desirable to (a) vest, perfect or confirm, of record or otherwise, in the
Surviving Corporation its right, title or interest in, to or under any of the
rights, properties or assets of Seller or Merger Sub, or (b) otherwise carry
out the purposes of this Agreement, Seller and its officers and directors
shall be deemed to have granted to the Surviving Corporation an irrevocable
power of attorney to execute and deliver all such deeds, assignments or
assurances in law and to do all acts necessary or proper to vest, perfect or
confirm title to and possession of such rights, properties or assets in the
Surviving Corporation and otherwise to carry out the purposes of this
Agreement, and the officers and directors of the Surviving Corporation are
authorized in the name of Seller or otherwise to take any and all such
action.
1.05 Articles of Incorporation and By-Laws. The Articles of
-------------------------------------
Incorporation and By-Laws of Merger Sub in effect immediately prior to the
Effective Time shall be the Articles of Incorporation and By-Laws of the
Surviving Corporation following the Merger, unless otherwise repealed or
amended.
1.06 Board of Directors and Officers. At the Effective Time, the
-------------------------------
directors and officers of Merger Sub immediately prior to the Effective Time
shall be the directors and officers, respectively, of the Surviving
Corporation following the Merger, and such directors and officers shall hold
office in accordance with the Surviving Corporation's By-Laws and applicable
law.
1.07 Conversion of Securities. At the Effective Time, by virtue of
------------------------
the Merger and without any action on the part of the Buyers, Seller or the
holder of any of the following securities:
(a) Each share of the common stock, $1.00 par value, of Merger
Sub that is issued and outstanding immediately prior to the Effective
Time shall remain outstanding and shall be unchanged after the Merger
and shall thereafter constitute all of the issued and outstanding
capital stock of the Surviving Corporation; and
(b) Subject to Sections 1.09, 1.10 and 1.11 hereof, each share
of common stock, $0.50 par value, of Seller ("Seller Common Stock")
issued and outstanding immediately prior to the Effective Time, other
than Dissenting Shares (as defined in Section 1.10 hereof), shall cease
to be outstanding and shall be converted into and become the right to
receive 6.8573 shares (the "Exchange Ratio") of common stock, $0.01 par
value, and the associated "Rights" under the "Rights Agreement," as
those terms are defined in Section 3.02 hereof, of Mercantile
(collectively, "Mercantile Common Stock"); provided, however, that any
Seller Common Stock held by Seller,
- 2 -
<PAGE> 8
Mercantile or any of their respective Subsidiaries (as defined in
Section 2.02 hereof), in each case other than in a fiduciary capacity
or as a result of debts previously contracted, shall be canceled and
shall not be exchanged for shares of Mercantile Common Stock. The
Exchange Ratio was computed by (i) aggregating (A) 260,424 shares of
Seller Common Stock, constituting the total number of shares of Seller
Common Stock that was issued and outstanding as of March 31, 1998 (as
set forth in Section 2.03 hereof) plus (B) 800 shares of Seller Common
Stock, constituting the total number of shares of Seller Common Stock
that is reserved for issuance pursuant to options or other rights
relating to Seller Common Stock and outstanding as of March 31, 1998
(as set forth in Section 2.03 hereof) plus (C) 41,666 shares of Seller
Common Stock, constituting the total number of shares of Seller Common
Stock that will be received upon the conversion of the 5,000 shares of
Class A preferred stock, no par value, of Seller ("Seller Preferred
Stock") and dividing such number of shares of Seller Common Stock
(computed by aggregating (A) through (C) hereof (the "Fully Diluted
Shares")) into (ii) 2,077,000, the aggregate number of shares of
Mercantile Common Stock to be issued in the Merger.
1.08 Exchange Procedures.
-------------------
(a) As soon as practicable following the Effective Time,
Mercantile shall mail or cause to be mailed to holders of record of
certificates formerly representing Seller Common Stock (the
"Certificates"), as identified on the Seller Stockholder List (as
provided pursuant to Section 1.11(b) hereof), letters advising them of
the effectiveness of the Merger and instructing them to tender such
Certificates to Mercantile's duly appointed exchange agent (the
"Exchange Agent"), or in lieu thereof, such evidence of lost, stolen or
mutilated Certificates and such surety bond or other security as the
Exchange Agent may reasonably require (the "Required Documentation").
(b) Subject to Sections 1.09, 1.10 and 1.12 hereof, after the
Effective Time, each previous holder of a Certificate that surrenders
such Certificate or in lieu thereof, the Required Documentation, to the
Exchange Agent, with a properly completed and executed letter of
transmittal with respect to such Certificate, will be entitled to a
certificate or certificates representing the number of full shares of
Mercantile Common Stock into which the Certificate so surrendered shall
have been converted pursuant to this Agreement, and any distribution
theretofore declared and not yet paid with respect to such shares of
Mercantile Common Stock and any amount due with respect to fractional
shares, without interest (collectively, the "Merger Consideration").
Such shares of Mercantile Common Stock, any amount due with respect to
fractional shares and any distribution shall be delivered by the
Exchange Agent to each such holder as promptly as practicable after
such surrender.
(c) Each outstanding Certificate, until duly surrendered to the
Exchange Agent, shall be deemed to evidence ownership of the Merger
Consideration into which the stock previously represented by such
Certificate shall have been converted pursuant to this Agreement.
- 3 -
<PAGE> 9
(d) After the Effective Time, holders of Certificates shall
cease to have rights with respect to the stock previously represented
by such Certificates, and their sole rights shall be to exchange such
Certificates for the Merger Consideration to which the shareholder may
be entitled pursuant to the provisions of Section 1.07 hereof. After
the closing of the transfer books as described in Section 1.11 hereof,
there shall be no further transfer on the records of Seller of
Certificates, and if such Certificates are presented to Seller for
transfer, they shall be canceled against delivery of the Merger
Consideration. Neither Buyers nor the Exchange Agent shall be
obligated to deliver the Merger Consideration until such holder
surrenders the Certificates or furnishes the Required Documentation as
provided herein. No dividends or distributions declared after the
Effective Time (including any redemption by Mercantile of the Rights
associated therewith) on the Mercantile Common Stock will be remitted
to any person entitled to receive Mercantile Common Stock under this
Agreement until such person surrenders the Certificate representing the
right to receive such Mercantile Common Stock or furnishes the Required
Documentation, at which time such dividends or distributions shall be
remitted to such person, without interest and less any taxes that may
have been imposed thereon. Certificates surrendered for exchange by an
"affiliate" of the Seller for purposes of Rule 145 under the Securities
Act shall not be exchanged until Buyers have received a written
agreement from such affiliate as required pursuant to Section 5.07
hereof. Neither the Exchange Agent nor any party to this Agreement nor
any affiliate thereof shall be liable to any holder of stock
represented by any Certificate for any Merger Consideration issuable or
payable in the Merger that is paid to a public official pursuant to
applicable abandoned property, escheat or similar laws.
1.09 No Fractional Shares. Notwithstanding any other provision of
--------------------
this Agreement, neither certificates nor scrip for fractional shares of
Mercantile Common Stock shall be issued in the Merger. Each holder of Seller
Common Stock who otherwise would have been entitled to a fraction of a share
of Mercantile Common Stock shall receive (by check from the Exchange Agent,
mailed to the stockholder with the certificate(s) for Mercantile Common Stock
which such holder is to receive pursuant to the Merger) in lieu thereof, cash
(without interest) in an amount determined by multiplying the fractional
share interest to which such holder would otherwise be entitled by the
closing stock price of Mercantile Common Stock on the New York Stock Exchange
(the "NYSE") Composite Tape as reported in The Wall Street Journal on the
Closing Date. No such holder shall be entitled to dividends, voting rights
or any other rights in respect of any fractional share.
1.10 Dissenting Shares.
-----------------
(a) "Dissenting Shares" means any shares of Seller Common Stock
or Seller Preferred Stock held by any holder who becomes entitled to
payment of the fair value of such shares under Section 262 of the DGCL.
Any holders of Dissenting Shares shall be entitled to payment for such
shares only to the extent permitted by and in accordance with the
provisions of the DGCL; provided, however, that if, in accordance with
the DGCL, any holder of Dissenting Shares shall forfeit such right to
payment of the fair value of such Dissenting Shares, such shares shall
thereupon be deemed to have been converted into and to have become
exchangeable for, as of the Effective Time, the right to receive the
Merger Consideration.
- 4 -
<PAGE> 10
(b) Seller shall give to Mercantile (i) prompt notice of any
written objections to the Merger and/or any written demands for the
payment of the fair value of any shares of Seller Common Stock or
Seller Preferred Stock, withdrawals of such demands, and any other
instruments served pursuant to Section 262 of the DGCL received by
Seller, and (ii) the opportunity to participate in all negotiations and
proceedings with respect to such demands under the DGCL. Seller shall
not voluntarily make any payment with respect to demands for payment of
fair value and shall not, except with the prior consent of Mercantile,
settle or offer to settle any such demands.
1.11 Closing of Stock Transfer Books.
-------------------------------
(a) The stock transfer books of Seller shall be closed at the
end of business on the business day immediately preceding the Closing
Date. In the event of a transfer of ownership of Seller Common Stock
that is not registered in the transfer records prior to the closing of
such record books, the Merger Consideration issuable or payable with
respect to such stock may be delivered to the transferee, if the
Certificate or Certificates representing such stock is presented to the
Exchange Agent accompanied by all documents required to evidence and
effect such transfer and all applicable stock transfer taxes are paid.
(b) At the Effective Time, Seller shall provide Buyers with a
complete and verified list of registered holders of Seller Common Stock
based upon its stock transfer books or corporate records as of the
closing of said transfer books, including the names, addresses,
certificate numbers and taxpayer identification numbers of such holders
(the "Seller Stockholder List"). Buyers shall be entitled to rely upon
the Seller Stockholder List to establish the identity of those persons
entitled to receive the Merger Consideration, which list shall be
conclusive with respect thereto. In the event of a dispute with
respect to ownership of stock represented by any Certificate, Buyers
shall be entitled to deposit any Merger Consideration represented
thereby in escrow with an independent third party and thereafter be
relieved with respect to any claims thereto.
1.12 Anti-Dilution. If between the date of this Agreement and the
-------------
Effective Time a share of Mercantile Common Stock shall be changed into a
different number of shares of Mercantile Common Stock or a different class of
shares by reason of reclassification, recapitalization, split-up,
combination, exchange of shares or readjustment, or if a stock dividend
thereon shall be declared with a record date within such period, then
appropriate and proportionate adjustment or adjustments will be made to the
Exchange Ratio such that each holder of Seller Common Stock shall be entitled
to receive such number of shares of Mercantile Common Stock or other
securities as such stockholder would have received pursuant to such
reclassification, recapitalization, split-up, combination, exchange of shares
or readjustment or as a result of such stock dividend had the record date
therefor been immediately following the Effective Time.
1.13 Reservation of Right to Revise Transaction. Buyers may at any
------------------------------------------
time change the method of effecting the acquisition of Seller by Buyers
(including, without limitation, the provisions of this Article I) if and to
the extent Buyers deem such change to be desirable, including, without
limitation, to provide for (i) a merger of Merger Sub with and into Seller,
in which Seller is the surviving corporation, or (ii) a merger of Seller
directly into Mercantile, in which Mercantile is the surviving corporation;
provided, however, that no such change shall (A) alter or change the amount
or kind of the
- 5 -
<PAGE> 11
Merger Consideration to be received by the holders of Seller Common Stock,
(B) adversely affect the tax treatment to Seller stockholders, as generally
described in Section 6.01(e) hereof, (C) materially impede or delay receipt
of any approvals referred to in Section 6.01(b) or the consummation of the
transactions contemplated by this Agreement, or (D) prevent or impede the
transactions contemplated hereby from qualifying for pooling-of-interests
accounting treatment unless Buyers first waive Seller's covenants set forth
in Sections 5.02(b) and 5.16 hereof and the condition to Buyers' obligation
to consummate the Merger set forth in Section 6.03(f) hereof.
1.14 Material Adverse Effect. As used in this Agreement, the term
-----------------------
"Material Adverse Effect" with respect to an entity means any condition,
event, change or occurrence that has or may reasonably be expected to have a
material adverse effect on the condition (financial or otherwise),
properties, business or results of operations, of such entity and its
Subsidiaries (as defined in Section 2.02(a)), taken as a whole as reflected
in the Seller Financial Statements (as defined in Section 2.05(b)) or the
Mercantile Financial Statements (as defined in Section 3.04), as the case may
be; it being understood that a Material Adverse Effect shall not include: (i)
a change with respect to, or effect on, such entity and its Subsidiaries
resulting from a change in law, rule, regulation, generally accepted
accounting principles or regulatory accounting principles; (ii) a change with
respect to, or effect on, such entity and its Subsidiaries resulting from any
other matter affecting depository institutions generally including, without
limitation, changes in general economic conditions and changes in prevailing
interest and deposit rates; (iii) a change disclosed in the Seller Financial
Statements or the Mercantile Financial Statements, as the case may be; (iv)
any charges taken by Mercantile in connection with pending or completed
acquisitions or the disposition of certain businesses or lines of business;
or (v) in the case of Seller, any financial change resulting from adjustments
made pursuant to Section 5.05 or 5.09(b) hereof.
ARTICLE II
----------
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to the Buyers as follows:
2.01 Organization and Authority. Seller is a corporation duly
--------------------------
organized, validly existing and in good standing under the laws of the State
of Delaware, is duly qualified to do business and is in good standing in all
jurisdictions where its ownership or leasing of property or the conduct of
its business requires it to be so qualified, except where the failure of
Seller to so qualify would not have a Material Adverse Effect on Seller and
the Seller Subsidiaries (as defined in Section 2.02(a)), taken as a whole,
and has the corporate power and authority to own its properties and assets
and to carry on its business as it is now being conducted. Seller is
registered as a bank holding company with the Board of Governors of the
Federal Reserve System (the "Federal Reserve Board") under the BHCA. True
and complete copies of the Certificate of Incorporation and By-Laws of Seller
and the Articles of Association and By-Laws of The Rock Island Bank, National
Association ("TRIB"), a national banking association, each as in effect on
the date of this Agreement, are attached hereto as Schedule 2.01.
-------------
2.02 Subsidiaries.
------------
(a) Schedule 2.02 sets forth a complete and correct list of all
of Seller's "Subsidiaries" (as defined in Rule 1-02 of Regulation S-X
promulgated by the Securities and Exchange Commission (the "SEC"); each
a "Seller Subsidiary" and, collectively, the
- 6 -
<PAGE> 12
"Seller Subsidiaries"), and all outstanding Equity Securities (as
defined in Section 2.03) of each Seller Subsidiary, all of which are
owned directly or indirectly by Seller. Except as disclosed in
Schedule 2.02, all of the outstanding shares of capital stock of the
-------------
Seller Subsidiaries owned directly or indirectly by Seller are validly
issued, fully paid and nonassessable and are owned free and clear of
any lien, claim, charge, option, encumbrance, agreement, mortgage,
pledge, security interest or restriction (a "Lien") with respect
thereto. Each of the Seller Subsidiaries is a corporation, bank or
savings bank duly incorporated or organized and validly existing under
the laws of its jurisdiction of incorporation or organization, and has
corporate power and authority to own or lease its properties and assets
and to carry on its business as it is now being conducted. Each of the
Seller Subsidiaries is duly qualified to do business in each
jurisdiction where its ownership or leasing of property or the conduct
of its business requires it so to be qualified, except where the
failure to so qualify would not have a Material Adverse Effect on
Seller and the Seller Subsidiaries, taken as a whole. Except as set
forth in Schedule 2.02, neither Seller nor any Seller Subsidiary owns
-------------
beneficially, directly or indirectly, any shares of any class of Equity
Securities (as defined in Section 2.03) or similar interests of any
corporation, bank, business trust, association or organization, or any
interest in a partnership or joint venture of any kind, other than
those identified as Seller Subsidiaries in Schedule 2.02 hereof.
-------------
(b) TRIB is a national banking association duly organized and
validly existing under the laws of the United States of America.
2.03 Capitalization. The authorized capital stock of Seller consists
--------------
of: (i) 600,000 shares of Seller Common Stock, of which, as of March 31,
1998, 340,662 shares were issued and 260,424 shares were outstanding and (ii)
100,000 shares of Seller Preferred Stock, of which, as of March 31, 1998,
5,000 shares were issued and outstanding and were convertible into 41,666
shares of Seller Common Stock. As of March 31, 1998, Seller had reserved
20,000 shares of Seller Common Stock for issuance under Seller's stock option
and incentive plans (including grants reflected in the Board minutes), a list
of which is set forth on Schedule 2.03 (the "Seller Stock Plans"), pursuant
-------------
to which options ("Seller Employee Stock Options") covering 800 shares of
Seller Common Stock were outstanding as of March 31, 1998. As of March 31,
1998, $ 10,000,000 aggregate principal amount of the Seller Notes was issued
and outstanding. Since March 31, 1998, no Equity Securities of Seller have
been issued, other than shares of Seller Common Stock which may have been
issued upon the exercise of Seller Stock Options. "Equity Securities" of an
issuer means capital stock or other equity securities of such issuer,
options, warrants, scrip, rights to subscribe to, calls or commitments of any
character whatsoever relating to, or securities or rights convertible into,
shares of any capital stock or other equity securities of such issuer, or
contracts, commitments, understandings or arrangements by which such issuer
is or may become bound to issue additional shares of its capital stock or
other equity securities of such issuer, or options, warrants, scrip or rights
to purchase, acquire, subscribe to, calls on or commitments for any shares of
its capital stock or other equity securities. Except as set forth above,
there are no other Equity Securities of Seller outstanding. All of the
issued and outstanding shares of Seller Common Stock and Seller Preferred
Stock are validly issued, fully paid and nonassessable and have not been
issued in violation of any preemptive right of any stockholder of Seller.
Neither Seller nor any Seller Subsidiary has taken or agreed to take any
action or has any knowledge of any fact or circumstance and neither Seller
nor any Seller Subsidiary will take any action that would prevent the Merger
from qualifying for pooling-of-interests accounting treatment.
- 7 -
<PAGE> 13
2.04 Authorization.
-------------
(a) Seller has the corporate power and authority to enter into
this Agreement and, subject to the approval of this Agreement by the
stockholders of Seller and the Regulatory Authorities (as defined in
Section 2.06), to carry out its obligations hereunder. The only
stockholder vote required for Seller to approve this Agreement is the
affirmative vote of the holders of a majority of the outstanding shares
of Seller Common Stock entitled to vote at a meeting called for such
purpose. The execution, delivery and performance of this Agreement by
Seller and the consummation by Seller of the transactions contemplated
hereby in accordance with and subject to the terms of this Agreement
have been duly authorized by the Board of Directors of Seller. Subject
to the approval of Seller's stockholders and subject to the receipt of
such approvals of the Regulatory Authorities as may be required by
statute or regulation, this Agreement is a valid and binding obligation
of Seller enforceable against Seller in accordance with its terms.
(b) Except as disclosed on Schedule 2.04(b), neither the
----------------
execution nor delivery nor performance by Seller of this Agreement, nor
the consummation by Seller of the transactions contemplated hereby, nor
compliance by Seller with any of the provisions hereof, will (i)
violate, conflict with, or result in a breach of any provisions of, or
constitute a default (or an event which, with notice or lapse of time
or both, would constitute a default) under, or result in the
termination of, or accelerate the performance required by, or result in
a right of termination or acceleration of, or result in the creation
of, any Lien upon any of the properties or assets of Seller or any of
the Seller Subsidiaries under any of the terms, conditions or
provisions of (x) its Certificate or Articles of Incorporation, charter
or By-Laws or (y) any note, bond, mortgage, indenture, deed of trust,
license, lease, agreement or other instrument or obligation to which
Seller or any of the Seller Subsidiaries is a party or by which it may
be bound, or to which Seller or any of the Seller Subsidiaries or any
of the properties or assets of Seller or any of the Seller Subsidiaries
may be subject, other than those as to which any such violation,
conflict, breach, event, termination, acceleration or creation would
not have a Material Adverse Effect on Seller and the Seller
Subsidiaries, taken as a whole, or (ii) subject to compliance with the
statutes and regulations referred to in subsection (c) of this Section
2.04, violate any judgment, ruling, order, writ, injunction, decree,
statute, rule or regulation applicable to Seller or any of the Seller
Subsidiaries or any of their respective properties or assets; other
than violations, conflicts, breaches, defaults, terminations,
accelerations or liens which would not have a Material Adverse Effect
on Seller and Seller Subsidiaries, taken as a whole.
(c) Other than in connection or in compliance with the
provisions of the Missouri Statute, the DGCL, the Securities Act of
1933, as amended, and the rules and regulations thereunder
(collectively, the "Securities Act"), the Securities Exchange Act of
1934, as amended, and the rules and regulations thereunder (the
"Exchange Act"), the securities or blue sky laws of the various states
or filings, consents, reviews, authorizations, approvals or exemptions
required under the BHCA, or any required approvals of the Federal
Reserve Board, the FDIC or other governmental agencies or governing
boards having regulatory authority over Seller or any Seller
Subsidiary, no notice to, filing with, exemption or review by, or
authorization, consent or approval of,
- 8 -
<PAGE> 14
any public body or authority is necessary for the consummation by
Seller of the transactions contemplated by this Agreement.
2.05 Seller Financial Statements.
---------------------------
(a) Attached hereto as Schedule 2.05(a) are copies of the
----------------
following documents: (i) Seller's Annual Report on Form 10-K for the
year ended March 31, 1997; and (ii) Seller's Quarterly Reports on Form
10-Q for the quarters ended June 30, 1997, September 30, 1997 and
December 31, 1997.
(b) The financial statements contained in the documents
referenced in Schedule 2.05(a) are referred to collectively as the
----------------
"Seller Financial Statements." The Seller Financial Statements have
been prepared in accordance with generally accepted accounting
principles ("GAAP") during the periods involved, and present fairly the
consolidated financial position of Seller and the Seller Subsidiaries
at the dates thereof and the consolidated results of operations,
changes in stockholders' equity and cash flows, as applicable, of
Seller and the Seller Subsidiaries for the periods stated therein.
(c) Seller and the Seller Subsidiaries have each prepared, kept
and maintained through the date hereof true, correct and complete
financial books and records which fairly reflect their respective
financial conditions, results of operations, changes in stockholders'
equity and cash flows.
2.06 Seller Reports. Since January 1, 1995, each of Seller and the
--------------
Seller Subsidiaries has timely filed any and all material reports,
registrations and statements, together with any required amendments thereto,
that it was required to file with (i) the SEC, including, but not limited to,
Forms 10-K, Forms 10-Q and Forms 8-K, (ii) the Federal Reserve Board, (iii)
the FDIC and (iv) any federal, state, municipal or local government,
securities, banking, savings and loan, environmental, insurance and other
governmental or regulatory authority, and the agencies and staffs thereof
(the entities in the foregoing clauses (i) through (iv) being referred to
herein collectively as the "Regulatory Authorities" and individually as a
"Regulatory Authority"), having jurisdiction over the affairs of it. All
such material reports and statements filed with any such Regulatory Authority
are collectively referred to herein as the "Seller Reports." As of each of
their respective dates, the Seller Reports complied in all material respects
with all the rules and regulations promulgated by the applicable Regulatory
Authority. With respect to Seller Reports filed with the Regulatory
Authorities, there is no material unresolved violation, criticism or
exception by any Regulatory Authority with respect to any report or statement
filed by, or any examinations of, Seller or any of the Seller Subsidiaries.
2.07 Title to and Condition of Assets.
--------------------------------
(a) Except as set forth in Schedule 2.07(a), and except as may
----------------
be reflected in the Seller Financial Statements and with the exception
of all "Real Property" (which is the subject of Section 2.08 hereof),
Seller and the Seller Subsidiaries have, and at the Closing Date will
have, good and marketable title to their owned properties and assets,
including, without limitation, those reflected in the Seller Financial
Statements (except those disposed of in the ordinary course of business
since the date thereof), free and clear of any Lien, except for Liens
for (i) taxes, assessments or other governmental charges not yet
delinquent, (ii) as set forth or described in the Seller Financial
Statements or any
- 9 -
<PAGE> 15
subsequent Seller Financial Statements delivered to Buyers prior to the
Effective Time, and (iii) pledges to secure deposits and other Liens
incurred in the ordinary course of business.
(b) Except as set forth in Schedule 2.07(b), no material
----------------
properties or assets that are reflected as owned by Seller or any of
the Seller Subsidiaries in the Seller Financial Statements as of
December 31, 1997, have been sold, leased, transferred, assigned or
otherwise disposed of since such date, except in the ordinary course of
business.
(c) Except as set forth in Schedule 2.07(c), all furniture,
----------------
fixtures, vehicles, machinery and equipment and computer software owned
or used by Seller or the Seller Subsidiaries, including any such items
leased as a lessee (taken as a whole as to each of the foregoing with
no single item deemed to be of material importance) are in good working
order and free of known defects, subject only to normal wear and tear.
The operation by Seller or the Seller Subsidiaries of such properties
and assets is in compliance in all material respects with all
applicable laws, ordinances and rules and regulations of any
governmental authority having jurisdiction over such use.
2.08 Real Property.
-------------
(a) A list of each parcel of real property owned by Seller or
any of the Seller Subsidiaries as of March 31, 1998 (other than real
property acquired in foreclosure or in lieu of foreclosure in the
course of the collection of loans and being held by Seller or a Seller
Subsidiary for disposition as required by law is set forth in Schedule
--------
2.08(a) under the heading "Owned Real Property" (such real property
-------
being herein referred to as the "Owned Real Property"). A list of each
parcel of real property leased by Seller or any of the Seller
Subsidiaries as of March 31, 1998 is also set forth in Schedule 2.08(a)
----------------
under the heading "Leased Real Property" (such real property being
herein referred to as the "Leased Real Property"). Seller shall update
Schedule 2.08(a) within ten (10) days of acquiring any Owned Real
----------------
Property or leasing any Leased Real Property after the date hereof.
Collectively, the Owned Real Property and the Leased Real Property are
herein referred to as the "Real Property."
(b) There is no pending action involving Seller or any of the
Seller Subsidiaries as to the title of or the right to use any of the
Real Property.
(c) Except as disclosed on Schedule 2.08(c), as of March 31,
----------------
1998, neither Seller nor any of the Seller Subsidiaries has any
interest in any real property other than as described above in Section
2.08(a) except interests as a mortgagee, any real property acquired in
foreclosure or in lieu of foreclosure and being held for disposition as
required by law and property held by any Seller Subsidiary in its
capacity as trustee.
(d) To the best knowledge of Seller, none of the buildings,
structures or other improvements located on the Real Property
encroaches upon or over any adjoining parcel of real estate or any
easement or right-of-way or "setback" line and all such buildings,
structures and improvements are located and constructed in conformity
with all applicable zoning ordinances and building codes.
- 10 -
<PAGE> 16
(e) None of the buildings, structures or improvements located
on the Owned Real Property are the subject of any official complaint or
notice by any governmental authority of violation of any applicable
zoning ordinance or building code, and there is no zoning ordinance,
building code, use or occupancy restriction or condemnation action or
proceeding pending, or, to the best knowledge of Seller, threatened,
with respect to any such building, structure or improvement. The Owned
Real Property is in generally good condition for its intended purpose,
ordinary wear and tear excepted, and has been maintained in accordance
with reasonable and prudent business practices applicable to like
facilities.
(f) Except as may be reflected in the Seller Financial
Statements or with respect to such easements, Liens, defects or
encumbrances as do not individually or in the aggregate materially
adversely affect the use or value of the parcel of Owned Real Property,
Seller and the Seller Subsidiaries have, and at the Closing Date will
have, good and marketable title to their respective Owned Real
Properties.
(g) Neither Seller nor any of the Seller Subsidiaries has
caused or allowed the generation, treatment, storage, disposal or
release at any Real Property of any Toxic Substance, except in
accordance in all material respects with all applicable federal, state
and local laws and regulations. "Toxic Substance" means any hazardous,
toxic or dangerous substance, pollutant, waste, gas or material,
including, without limitation, petroleum and petroleum products, metals
liquids, semi-solids or solids, that are regulated under any federal,
state or local statute, ordinance, rule, regulation or other law
pertaining to environmental protection, contamination, quality, waste
management or cleanup. There are no underground storage tanks located
on, in or under any Owned Real Property or Leased Real Property.
2.09 Taxes. Seller and each Seller Subsidiary have timely filed or
-----
will timely file (including extensions) all material tax returns required to
be filed at or prior to the Closing Date ("Seller Returns"). Each of Seller
and the Seller Subsidiaries has paid, or set up adequate reserves on the
Seller Financial Statements for the payment of, all taxes required to be paid
in respect of the periods covered by such Seller Returns and has set up
adequate reserves on the most recent Seller Financial Statements for the
payment of all taxes anticipated to be payable in respect of all periods up
to and including the latest period covered by such Seller Financial
Statements. Neither Seller nor any Seller Subsidiary has any material
liability for any such taxes in excess of the amounts so paid or reserves so
established, and no material deficiencies for any tax, assessment or
governmental charge have been proposed, asserted or assessed in writing
(tentatively or definitely) against Seller or any of the Seller Subsidiaries
which have not been settled or would not be covered by existing reserves.
Except as set forth in Schedule 2.09, neither Seller nor any of the Seller
-------------
Subsidiaries is delinquent in the payment of any material tax, assessment or
governmental charge, nor has it requested any extension of time within which
to file any tax returns in respect of any fiscal year which have not since
been filed and no requests for waivers of the time to assess any tax are
pending. Except as set forth on Schedule 2.09, no federal or state income
-------------
tax return of Seller or any Seller Subsidiaries has been audited by the
Internal Revenue Service (the "IRS") or any state tax authority for the seven
most recent full fiscal years of Seller. Except as set forth on Schedule
--------
2.09, there is no deficiency or refund litigation or, to the best knowledge
- ----
of Seller, matter in controversy with respect to Seller Returns. Except as
set forth on Schedule 2.09 hereof, neither Seller nor any of the Seller
-------------
Subsidiaries has extended or waived any statute of limitations on the
assessment of any tax due that is currently in effect.
- 11 -
<PAGE> 17
2.10 Material Adverse Effect. Since December 31, 1997, there has been
-----------------------
no Material Adverse Effect on Seller and the Seller Subsidiaries, taken as a
whole.
2.11 Loans, Commitments and Contracts.
--------------------------------
(a) Schedule 2.11(a) contains a complete and accurate listing,
----------------
as of March 31, 1998, of all contracts entered into with respect to
deposits and repurchase agreements of $1,000,000 or more, by account,
and, as of February 28, 1998, all loan agreements, notes, security
agreements, bankers' acceptances, outstanding letters of credit,
participation agreements, and other documents relating to or involving
extensions of credit by Seller or any of the Seller Subsidiaries and,
as of February 28, 1998, all loan commitments and commitments to issue
letters of credit and other commitments to extend credit with respect
to any one entity or related group of entities in excess of $1,000,000
to which Seller or any of the Seller Subsidiaries is a party or by
which it is bound, by account.
(b) Except for the contracts and agreements required to be
listed on Schedule 2.11(a) and the loans required to be listed on
----------------
Schedule 2.11(f), and except as otherwise listed on Schedule 2.11(b),
---------------- ----------------
as of February 28, 1998, neither Seller nor any of the Seller
Subsidiaries is a party to or is bound by any:
(i) agreement, contract, arrangement, understanding or
commitment with any labor union;
(ii) material franchise or license agreement, excluding
software license agreements entered into in the ordinary course
of business;
(iii) written employment, severance, termination pay,
agency, consulting or similar agreement or commitment in respect
of personal services;
(iv) material agreement, arrangement or commitment (A)
not made in the ordinary course of business, and (B) pursuant to
which Seller or any of the Seller Subsidiaries is or may become
obligated to invest in or contribute to any Seller Subsidiary
other than pursuant to Seller Employee Plans (as that term is
defined in Section 2.19 hereof) or agreements relating to joint
ventures or partnerships set forth in Schedule 2.02, true and
-------------
complete copies of which have been furnished to Buyers;
(v) agreement, indenture or other instrument not
disclosed in the Seller Financial Statements relating to the
borrowing of money by Seller or any of the Seller Subsidiaries or
the guarantee by Seller or any of the Seller Subsidiaries of any
such obligation (other than trade payables or instruments related
to transactions entered into in the ordinary course of business
by Seller or any of the Seller Subsidiaries, such as deposits,
Federal Home Loan Bank ("FHLB") and Federal Funds borrowings and
repurchase and reverse repurchase agreements), other than such
agreements, indentures or instruments providing for annual
payments of less than $200,000;
- 12 -
<PAGE> 18
(vi) contract containing covenants which limit the
ability of Seller or any of the Seller Subsidiaries to compete in
any line of business or with any person or which involves any
restrictions on the geographical area in which, or method by
which, Seller or any of the Seller Subsidiaries may carry on
their respective businesses (other that as may be required by law
or any applicable Regulatory Authority);
(vii) contract or agreement which is a "material
contract" within the meaning of Item 601(b)(10) of Regulation S-K
as promulgated by the SEC to be performed after the date of this
Agreement that has not been filed or incorporated by reference in
the Seller Reports;
(viii) lease with annual rental payments aggregating
$100,000 or more;
(ix) loans or other obligations payable or owing to any
officer, director or employee except (A) salaries, wages and
directors' fees or other compensation incurred and accrued in the
ordinary course of business and (B) obligations due in respect of
any depository accounts maintained by any of the foregoing with
Seller or any of the Seller Subsidiaries in the ordinary course
of business; or
(x) other agreement, contract, arrangement,
understanding or commitment involving an obligation by Seller or
any of the Seller Subsidiaries of more than $250,000 and
extending beyond six months from the date hereof that cannot be
canceled without cost or penalty upon notice of 30 days or less,
other than contracts entered into in respect of deposits, loan
agreements and commitments, notes, security agreements,
repurchase and reverse repurchase agreements, Treasury, tax and
loan notes, bankers' acceptances, outstanding letters of credit
and commitments to issue letters of credit, participation
agreements and other documents relating to transactions entered
into by Seller or any of the Seller Subsidiaries in the ordinary
course of business and not involving extensions of credit with
respect to any one entity or related group of entities in excess
of $1,000,000.
(c) Seller and/or the Seller Subsidiaries carry property,
liability, director and officer errors and omissions, products
liability and other insurance coverage as set forth in Schedule 2.11(c)
----------------
under the heading "Insurance."
(d) True, correct and complete copies of the agreements,
contracts, leases and other documents referred to in Section 2.11(b)
have been included with Schedule 2.11(b) hereto. True, correct and
----------------
complete copies of the agreements, contracts, leases, insurance
policies and other documents referred to in Schedules 2.11(a) and (c)
-------------------------
have been or shall be furnished or made available to Buyers.
(e) To the best knowledge of Seller, each of the agreements,
contracts, leases, insurance policies and other documents referred to
in Schedules 2.11 (a), (b) and (c) is a valid, binding and enforceable
-------------------------------
obligation of the parties sought to be bound
- 13 -
<PAGE> 19
thereby, except as the enforceability thereof against the parties
thereto (other than Seller or any of the Seller Subsidiaries) may be
limited by bankruptcy, insolvency, reorganization, moratorium and other
laws now or hereafter in effect relating to the enforcement of
creditors' rights generally, and except that equitable principles may
limit the right to obtain specific performance or other equitable
remedies.
(f) Schedule 2.11(f) under the heading "Loans" contains a true,
----------------
correct and complete listing, as of February 28, 1998, by account, of
(i) all loans in excess of $500,000 of Seller or any of the Seller
Subsidiaries that have been accelerated during the past twelve months;
(ii) all loan commitments or lines of credit of Seller or any of the
Seller Subsidiaries in excess of $500,000 which have been terminated by
Seller or any of the Seller Subsidiaries during the past twelve months
by reason of default or adverse developments in the condition of the
borrower or other events or circumstances affecting the credit of the
borrower; (iii) all loans, lines of credit and loan commitments in
excess of $500,000, as to which Seller or any of the Seller
Subsidiaries has given written notice of its intent to terminate during
the past twelve months; (iv) with respect to all loans in excess of
$500,000 all notification letters and other written communications from
Seller or any of the Seller Subsidiaries to any of their respective
borrowers, customers or other parties during the past twelve months
wherein Seller or any of the Seller Subsidiaries has requested or
demanded that actions be taken to correct existing defaults or facts or
circumstances which may become defaults; (v) each borrower, customer or
other party which has notified Seller or any of the Seller Subsidiaries
during the past twelve months of, or has asserted against Seller or any
of the Seller Subsidiaries, in each case in writing, any "lender
liability" or similar claim, and, to the best knowledge of Seller, each
borrower, customer or other party which has given Seller or any of the
Seller Subsidiaries any oral notification of, or orally asserted to or
against Seller or any of the Seller Subsidiaries, any such claim; or
(vi) all loans in excess of $250,000 (A) that are contractually past
due 90 days or more in the payment of principal and/or interest, (B)
that are on non-accrual status, (C) that have been classified
"doubtful," "loss" or the equivalent thereof by any Regulatory
Authority, (D) where a reasonable doubt exists as to the timely future
collectibility of principal and/or interest, whether or not interest is
still accruing or the loan is less than 90 days past due, (E) the
interest rate terms have been reduced and/or the maturity dates have
been extended subsequent to the agreement under which the loan was
originally created due to concerns regarding the borrower's ability to
pay in accordance with such initial terms, or (F) where a specific
reserve allocation exists in connection therewith.
2.12 Absence of Defaults. Neither Seller nor any of the Seller
-------------------
Subsidiaries is in violation of its charter documents or By-Laws or in
default under any material agreement, commitment, arrangement, lease,
insurance policy or other instrument, whether entered into in the ordinary
course of business or otherwise and whether written or oral, and there has
not occurred any event that, with the lapse of time or giving of notice or
both, would constitute such a default, except in all cases where such default
would not have a Material Adverse Effect on Seller and its Subsidiaries,
taken as a whole.
2.13 Litigation and Other Proceedings. As of March 31, 1998, except
--------------------------------
as set forth on Schedule 2.13 or otherwise disclosed in the Seller Financial
-------------
Statements, neither Seller nor any of the Seller Subsidiaries is a party to
any pending or, to the best knowledge of Seller, threatened claim, action,
suit, investigation or proceeding, or is subject to any order, judgment or
decree, except for matters which,
- 14 -
<PAGE> 20
in the aggregate, will not have, or reasonably could not be expected to have,
a Material Adverse Effect on Seller and the Seller Subsidiaries, taken as a
whole. Without limiting the generality of the foregoing, there are no
actions, suits or proceedings pending or, to the best knowledge of Seller,
threatened against Seller or any of the Seller Subsidiaries or any of their
respective officers or directors by any stockholder of Seller or any of the
Seller Subsidiaries (or any former stockholder of Seller or any of the Seller
Subsidiaries) or involving claims under the Community Reinvestment Act of
1977, as amended, the Bank Secrecy Act, the fair lending laws or any other
similar laws.
2.14 Directors' and Officers' Insurance. Each of Seller and the
----------------------------------
Seller Subsidiaries has taken or will take all requisite action (including,
without limitation, the making of claims and the giving of notices) pursuant
to its directors' and officers' liability insurance policy or policies in
order to preserve all rights thereunder with respect to all matters (other
than matters arising in connection with this Agreement and the transactions
contemplated hereby) occurring prior to the Effective Time that are known to
Seller.
2.15 Compliance with Laws
--------------------
(a) To the best knowledge of Seller, Seller and each of the
Seller Subsidiaries have all permits, licenses, authorizations, orders
and approvals of, and have made all filings, applications and
registrations with, all Regulatory Authorities that are required in
order to permit them to own or lease their respective properties and
assets and to carry on their respective businesses as presently
conducted; all such permits, licenses, certificates of authority,
orders and approvals are in full force and effect and, to the best
knowledge of Seller, no suspension or cancellation of any of them is
threatened; and all such filings, applications and registrations are
current; in each case except for permits, licenses, authorizations,
orders, approvals, filings, applications and registrations the failure
to have (or have made) would not have a Material Adverse Effect on
Seller and the Seller Subsidiaries, taken as a whole.
(b) (i) To the best knowledge of Seller, each of Seller and the
Seller Subsidiaries has complied with all laws, regulations and orders
(including, without limitation, zoning ordinances, building codes, the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"),
and securities, tax, environmental, civil rights, and occupational
health and safety laws and regulations including, without limitation,
in the case of Seller or any Seller Subsidiary that is a bank or
savings association, banking organization, banking corporation or trust
company, all statutes, rules, regulations and policy statements
pertaining to the conduct of a banking, deposit-taking, lending or
related business, or to the exercise of trust powers) and governing
instruments applicable to it and to the conduct of its business, and
(ii) neither Seller nor any of the Seller Subsidiaries is in default
under, and no event has occurred which, with the lapse of time or
notice or both, could result in the default under, the terms of any
judgment, order, writ, decree, permit, or license of any Regulatory
Authority or court, whether federal, state, municipal or local, and
whether at law or in equity, except in the case of subparts (i) and
(ii) where such failure to comply or default would not have a Material
Adverse Effect on Seller and the Seller Subsidiaries, taken as a whole.
(c) Except as set forth on Schedule 2.15(c), neither Seller nor
----------------
any of the Seller Subsidiaries is subject to or reasonably likely to
incur a liability as a result of its
- 15 -
<PAGE> 21
ownership, operation, or use of any Property (as defined below) of
Seller (whether directly or, to the best knowledge of Seller, as a
consequence of such Property being acquired in foreclosure or in lieu
of foreclosure or being part of the investment portfolio of Seller or
any of the Seller Subsidiaries) (A) that is contaminated by or contains
any Toxic Substance (as defined in Section 2.08), including, without
limitation, petroleum and petroleum products, asbestos, PCBs,
pesticides, herbicides and any other substance or waste that is
hazardous to human health or the environment and regulated by federal,
state or local law, or (B) on which any Toxic Substance has been
stored, disposed of, placed or used at the Property or in the
construction of structures thereon; and which, in each case, reasonably
could be expected to have a Material Adverse Effect on Seller and the
Seller Subsidiaries, taken as a whole. "Property" shall include all
property (real or personal, tangible or intangible) owned or controlled
by Seller or any of the Seller Subsidiaries, including, without
limitation, property acquired under foreclosure or in lieu of
foreclosure, property in which any venture capital or similar unit of
Seller or any of the Seller Subsidiaries has an interest and, to the
best knowledge of Seller, property held by Seller or any of the Seller
Subsidiaries in its capacity as a trustee. No claim, action, suit or
proceeding is pending or, to the best knowledge of Seller, threatened,
and no material claim has been asserted against Seller or any of the
Seller Subsidiaries relating to Property of Seller or any of the Seller
Subsidiaries before any court or other Regulatory Authority or
arbitration tribunal relating to Toxic Substances, pollution or the
environment, and there is no outstanding judgment, order, writ,
injunction, decree or award against or affecting Seller or any of the
Seller Subsidiaries with respect to the same.
(d) Neither Seller nor any of the Seller Subsidiaries has
received any notification or communication that has not been finally
resolved from any Regulatory Authority (i) asserting that the Seller or
any of the Seller Subsidiaries or any Property is not in substantial
compliance with any of the statutes, regulations or ordinances that
such Regulatory Authority enforces, except with respect to matters
which reasonably could not be expected to have a Material Adverse
Effect on the Seller and the Seller Subsidiaries, taken as a whole,
(ii) threatening to revoke any license, franchise, permit or
governmental authorization that reasonably could be expected to have a
Material Adverse Effect on the Seller and the Seller Subsidiaries,
taken as a whole, including, without limitation, such company's status
as an insured depository institution under the FDI Act, or (iii)
requiring or threatening to require Seller or any of the Seller
Subsidiaries, or indicating that Seller or any of the Seller
Subsidiaries may be required, to enter into a cease and desist order,
agreement or memorandum of understanding or any other agreement
restricting or limiting or purporting to direct, restrict or limit in
any manner the operations of Seller or any of the Seller Subsidiaries,
including, without limitation, any restriction on the payment of
dividends. No such cease and desist order, agreement or memorandum of
understanding or other agreement is currently in effect.
(e) Neither Seller nor any of the Seller Subsidiaries is
required by Section 32 of the FDI Act to give prior notice to any
federal banking agency of the proposed addition of an individual to its
board of directors or the employment of an individual as a senior
executive officer.
- 16 -
<PAGE> 22
2.16 Labor. No work stoppage involving Seller or any of the Seller
-----
Subsidiaries is pending or, to the best knowledge of Seller, threatened.
Except as set forth on Schedule 2.13, neither Seller nor any of the Seller
-------------
Subsidiaries is involved in, or, to the best knowledge of Seller, threatened
with or affected by, any labor dispute, arbitration, lawsuit or
administrative proceeding that reasonably could be expected to have a
Material Adverse Effect on the Seller and the Seller Subsidiaries, taken as
a whole. None of the employees of Seller or the Seller Subsidiaries are
represented by any labor union or any collective bargaining organization.
2.17 Material Interests of Certain Persons. Except as set forth in
-------------------------------------
Seller's Annual Report on Form 10-K for the year ended March 31, 1997, and
except as set forth in Schedule 2.17, no officer or director of Seller or any
-------------
of the Seller Subsidiaries, or any "associate" (as such term is defined in
Rule 14a-1 under the Exchange Act) of any such officer or director, has any
interest in any contract or property (real or personal, tangible or
intangible), used in, or pertaining to the business of, Seller or any of the
Seller Subsidiaries, which in the case of Seller and each of the Seller
Subsidiaries would be required to be disclosed by Item 404 of Regulation S-K
promulgated by the SEC.
2.18 Allowance for Loan and Lease Losses; Non-Performing Assets;
-----------------------------------------------------------
Financial Assets.
- ----------------
(a) All of the accounts, notes and other receivables that are
reflected in the Seller Financial Statements as of December 31, 1997
were acquired in the ordinary course of business and were collectible
in full in the ordinary course of business, except for possible loan
and lease losses that are adequately provided for in the allowance for
loan and lease losses reflected in such Seller Financial Statements,
and the collection experience of Seller and the Seller Subsidiaries
since December 31, 1997 to the date hereof, has not deviated in any
material and adverse manner from the credit and collection experience
of Seller and the Seller Subsidiaries, taken as a whole, for the six
months ended December 31, 1997.
(b) The allowances for loan losses contained in the Seller
Financial Statements were established in accordance with the past
practices and experiences of Seller and the Seller Subsidiaries, and
the allowance for loan and lease losses shown on the consolidated
balance sheet of Seller and the Seller Subsidiaries as of December 31,
1997, were adequate in all material respects under the requirements of
GAAP, or regulatory accounting principles, as the case may be, to
provide for possible losses on loans and leases (including, without
limitation, accrued interest receivable) and credit commitments
(including, without limitation, stand-by letters of credit) as of the
date of such balance sheet.
(c) Schedule 2.18(c) sets forth as of the date of this
----------------
Agreement all assets classified by Seller as real estate acquired
through foreclosure or repossession, including foreclosed assets.
(d) As of December 31, 1997, the aggregate amount of all Non-
Performing Assets (as defined below) on the books of Seller and the
Seller Subsidiaries did not exceed $3,900,000. "Non-Performing Assets"
shall mean (i) all loans (A) that are contractually past due 90 days or
more in the payment of principal and/or interest, (B) that are on
nonaccrual status, (C) that have been classified "doubtful," "loss" or
the
- 17 -
<PAGE> 23
equivalent thereof by any Regulatory Agency or (D) where the interest
rate terms have been reduced and/or the maturity dates have been
extended subsequent to the agreement under which the loan was
originally created due to concerns regarding the borrower's ability to
pay in accordance with such initial terms, and (ii) all assets
classified by Seller as real estate acquired through foreclosure or in
lieu of foreclosure, including in-substance foreclosures, and all other
assets acquired through foreclosure or in lieu of foreclosure.
(e) All loans receivable (including discounts) and accrued
interest entered on the books of Seller and the Seller Subsidiaries, to
the extent unpaid on the Closing Date, arose out of bona fide arm's-
length transactions, were made for good and valuable consideration in
the ordinary course of Seller's or the appropriate Seller Subsidiary's
respective business, and the notes or other evidences of indebtedness
with respect to such loans or discounts are true and genuine and are
what they purport to be. The loans, discounts and the accrued interest
reflected on the books of Seller and the Seller Subsidiaries are
subject to no defenses, set-offs or counterclaims (including, without
limitation, those afforded by usury or truth-in-lending laws), except
as may be provided by bankruptcy, insolvency or similar laws affecting
creditors' rights generally or by general principles of equity. All
such loans are owned by Seller or the appropriate Seller Subsidiary
free and clear of any liens, restrictions or encumbrances.
(f) The notes and other evidences of indebtedness evidencing
the loans described in Section 2.18(e) above, and all pledges,
mortgages, deeds of trust and other collateral documents or security
instruments relating thereto are and will be, in all material respects,
valid, true, genuine and enforceable, and what they purport to be.
Seller and each of the Seller Subsidiaries has good and valid title to
the investment securities shown on the Seller Financial Statements and
all securities entered on the books of Seller or the appropriate Seller
Subsidiary subsequent to December 31, 1997, except for those sold or
redeemed in the ordinary course of business. A complete and accurate
list of such investment securities as of December 31, 1997 is attached
as Schedule 2.18(f). Such list shall be updated each month in writing
----------------
until the Closing.
2.19 Employee Benefit Plans.
----------------------
(a) Schedule 2.19(a) lists all pension, retirement,
----------------
supplemental retirement, stock option, stock purchase, stock ownership,
savings, stock appreciation right, profit sharing, deferred
compensation, consulting, bonus, medical, disability, workers'
compensation, vacation, group insurance, severance and other employee
benefit, incentive and welfare policies, contracts, plans and
arrangements, and all trust agreements related thereto, maintained by
or contributed to by Seller or any of the Seller Subsidiaries as of the
date hereof in respect of any of the present or former directors,
officers, or other employees of and/or consultants to Seller or any of
the Seller Subsidiaries (collectively, "Seller Employee Plans").
Seller has furnished Buyers with the following documents with respect
to each Seller Employee Plan: (i) a true and complete copy of all
written documents comprising such Seller Employee Plan (including
amendments and individual agreements relating thereto) or, if there is
no such written document, an accurate and complete description of the
Seller Employee Plan;
- 18 -
<PAGE> 24
(ii) the most recently filed Form 5500 or Form 5500-C/R (including all
schedules thereto), if applicable; (iii) the most recent financial
statements and actuarial reports, if any; (iv) the summary plan
description currently in effect and all material modifications thereof,
if any; and (v) the most recent IRS determination letter, if any.
(b) All Seller Employee Plans have been maintained and operated
in all material respects in accordance with their terms and the
material requirements of all applicable statutes, orders, rules and
final regulations, including, without limitation, to the extent
applicable, ERISA and the Internal Revenue Code of 1986, as amended
(the "Code"). All contributions required to be made to Seller Employee
Plans have been made or reserved.
(c) With respect to each of the Seller Employee Plans which is
a pension plan (as defined in Section 3(2) of ERISA) (the "Pension
Plans"): (i) each Pension Plan which is intended to be "qualified"
within the meaning of Section 401(a) of the Code has been determined to
be so qualified by the IRS and such determination letter may still be
relied upon, and each related trust is exempt from taxation under
Section 501(a) of the Code; (ii) the present value of all benefits
vested and all benefits accrued under each Pension Plan which is
subject to Title IV of ERISA did not, in each case, as of the last
applicable annual valuation date (as indicated on Schedule 2.19(a)),
----------------
exceed the value of the assets of the Pension Plan allocable to such
vested or accrued benefits; (iii) there has been no "prohibited
transaction," as such term is defined in Section 4975 of the Code or
Section 406 of ERISA, which could subject any Pension Plan or
associated trust, or Seller or any of the Seller Subsidiaries, to any
material tax or penalty; (iv) no defined benefit Pension Plan or any
trust created thereunder has been terminated, nor has there been any
"reportable events" with respect to any Pension Plan, as that term is
defined in Section 4043 of ERISA since January 1, 1990; and (v) no
Pension Plan or any trust created thereunder has incurred any
"accumulated funding deficiency," as such term is defined in Section
302 of ERISA (whether or not waived). No Pension Plan is a
"multiemployer plan," as that term is defined in Section 3(37) of
ERISA.
(d) Except as disclosed in Schedule 2.19(d) or as reflected on
----------------
the Seller Financial Statements or the notes thereto, neither Seller
nor any of the Seller Subsidiaries has any liability for any
post-retirement health, medical or similar benefit of any kind
whatsoever, except as required by statute or regulation.
(e) Neither Seller nor any of the Seller Subsidiaries has any
material liability under ERISA or the Code as a result of its being a
member of a group described in Sections 414(b), (c), (m) or (o) of the
Code.
(f) Except as disclosed in Schedule 2.19(f), neither the
----------------
execution nor delivery of this Agreement, nor the consummation of any
of the transactions contemplated hereby, will (i) result in any payment
(including, without limitation, severance, unemployment compensation or
golden parachute payment) becoming due to any director or employee of
Seller or any of the Seller Subsidiaries from any of such entities,
(ii) increase any benefit otherwise payable under any of the Seller
Employee Plans or (iii) result in the acceleration of the time of
payment of any such benefit. Seller shall use its best efforts to
insure that no amounts paid or payable by Seller, the Seller
- 19 -
<PAGE> 25
Subsidiaries or Buyers to or with respect to any employee or former
employee of Seller or any of the Seller Subsidiaries will fail to be
deductible for federal income tax purposes by reason of Section 280G of
the Code.
2.20 Conduct of Seller to Date. Except as set forth in Schedule 2.20,
------------------------- -------------
from and after December 31, 1997 through the date of this Agreement, except
as set forth in the Seller Financial Statements and the Seller Reports: (i)
Seller and the Seller Subsidiaries have conducted their respective businesses
in the ordinary and usual course consistent with past practices; (ii) except
upon the exercise of Seller Stock Options, neither Seller nor any of the
Seller Subsidiaries has issued, sold, granted, conferred or awarded any of
its Equity Securities, or any corporate debt securities which would be
classified under GAAP as long-term debt on the balance sheets of Seller or
the Seller Subsidiaries; (iii) Seller has not effected any stock split or
adjusted, combined, reclassified or otherwise changed its capitalization;
(iv) Seller has not declared, set aside or paid any dividend (other than its
regular quarterly dividends) or other distribution in respect of its capital
stock, or purchased, redeemed, retired, repurchased or exchanged, or
otherwise acquired or disposed of, directly or indirectly, any of its Equity
Securities, whether pursuant to the terms of such Equity Securities or
otherwise; (v) neither Seller nor any of the Seller Subsidiaries has incurred
any obligation or liability (absolute or contingent), except liabilities
incurred in the ordinary course of business or in connection with the
transactions contemplated by this Agreement, or subjected to Lien any of its
assets or properties other than in the ordinary course of business consistent
with past practice; (vi) neither Seller nor any of the Seller Subsidiaries
has discharged or satisfied any Lien or paid any obligation or liability
(absolute or contingent), other than in the ordinary course of business;
(vii) neither Seller nor any of the Seller Subsidiaries has sold, assigned,
transferred, leased, exchanged, or otherwise disposed of any of its
properties or assets other than for a fair consideration in the ordinary
course of business; (viii) except as required by contract or law, neither
Seller nor any of the Seller Subsidiaries has (A) increased the rate of
compensation of, or paid any bonus to, any of its directors, officers, or
other employees, except in accordance with existing policy, (B) entered into
any new, or amended or supplemented any existing, employment, management,
consulting, deferred compensation, severance, or other similar contract, (C)
entered into, terminated, or substantially modified any of the Seller
Employee Plans or (D) agreed to do any of the foregoing; (ix) neither Seller
nor any Seller Subsidiary has suffered any material damage, destruction, or
loss, whether as the result of fire, explosion, earthquake, accident,
casualty, labor trouble, requisition, or taking of property by any Regulatory
Authority, flood, windstorm, embargo, riot, act of God or the enemy, or other
casualty or event, and whether or not covered by insurance; (x) neither
Seller nor any of the Seller Subsidiaries has canceled or compromised any
debt, except for debts charged off or compromised in accordance with the past
practice of Seller and the Seller Subsidiaries; and (xi) neither Seller nor
any of the Seller Subsidiaries has entered into any material transaction,
contract or commitment outside the ordinary course of its business, except in
connection with the transactions contemplated by this Agreement.
2.21 Absence of Undisclosed Liabilities.
----------------------------------
(a) Except as set forth on Schedule 2.21(a), as of the date
----------------
hereof, neither Seller nor any of the Seller Subsidiaries has any
debts, liabilities or obligations equal to or exceeding $50,000,
individually or $100,000 in the aggregate, whether accrued, absolute,
contingent or otherwise and whether due or to become due, which would
be required to be reflected in the Seller Financial Statements or the
notes thereto in accordance with GAAP except:
- 20 -
<PAGE> 26
(i) debts, liabilities or obligations reflected on the
Seller Financial Statements and the notes thereto;
(ii) operating leases reflected on Schedule 2.11(b); and
----------------
(iii) debts, liabilities or obligations incurred in the
ordinary and usual course of their respective businesses, which
are not for breach of contract, breach of warranty, torts,
infringements or lawsuits and which do not have a Material
Adverse Effect on Seller and the Seller Subsidiaries, taken as a
whole.
(b) Neither Seller nor any of the Seller Subsidiaries was as of
December 31, 1997, or since such date to the date hereof, a party to
any contract or agreement, excluding deposits, loan agreements, and
commitments, notes, security agreements, repurchase and reverse
repurchase agreements, bankers' acceptances, outstanding letters of
credit and commitments to issue letters of credit, participation
agreements and other documents relating to transactions entered into by
Seller or any of the Seller Subsidiaries in the ordinary course of
business, that had, has or may be reasonably expected to have a
Material Adverse Effect on Seller and the Seller Subsidiaries, taken as
a whole.
2.22 Proxy Statement, Etc. None of the information regarding Seller
---------------------
or any of the Seller Subsidiaries to be supplied by Seller for inclusion or
included in (i) the Registration Statement on Form S-4 to be filed with the
SEC by Mercantile for the purpose of registering the shares of Mercantile
Common Stock to be exchanged for Seller Common Stock pursuant to the
provisions of this Agreement as such Registration Statement on Form S-4 may
be amended or supplemented (including without limitation, any post-effective
amendments and supplements thereof) (the "Registration Statement"), (ii) the
Proxy Statement to be mailed to Seller's stockholders in connection with the
meeting to be called to consider this Agreement and the Merger, as such Proxy
Statement may be amended or supplemented (the "Proxy Statement"), or (iii)
any other documents to be filed with any Regulatory Authority in connection
with the transactions contemplated hereby will, at the respective times such
documents are filed with any Regulatory Authority and, in the case of the
Registration Statement, when it becomes effective and, with respect to the
Proxy Statement, when mailed, be false or misleading with respect to any
material fact, or omit to state any material fact necessary in order to make
the statements therein not misleading or, in the case of the Proxy Statement,
at the time of the meeting of Seller's stockholders referred to in Section
5.03, be false or misleading with respect to any material fact, or omit to
state any material fact necessary to correct any statement in any earlier
communication with respect to the solicitation of any proxy for such meeting.
All documents which Seller or any of the Seller Subsidiaries is responsible
for filing with any Regulatory Authority in connection with the Merger will
comply as to form in all material respects with the provisions of applicable
law.
2.23 Registration Obligations. Neither Seller nor any of the Seller
------------------------
Subsidiaries is under any obligation, contingent or otherwise, which will
survive the Effective Time by reason of any agreement to register any
transaction involving any of its securities under the Securities Act.
2.24 Tax, Regulatory and Accounting Matters. Neither Seller nor any
--------------------------------------
of the Seller Subsidiaries has taken or agreed to take any action or has any
knowledge of any fact or circumstance that would (i) prevent the transactions
contemplated hereby from qualifying as a reorganization within the meaning of
Section 368 of the Code, (ii) materially impede or delay receipt of any
approval referred to in Section 6.01(b) or the consummation of the
transactions contemplated by this Agreement or (iii)
- 21 -
<PAGE> 27
prevent or impede the transactions contemplated hereby from qualifying for
pooling-of-interests accounting treatment.
2.25 Brokers and Finders. Except for Howe Barnes Investments, Inc.,
-------------------
neither Seller nor any of the Seller Subsidiaries nor any of their respective
officers, directors or employees has employed any broker or finder or
incurred any liability for any financial advisory fees, brokerage fees,
commissions or finder's fees, and no broker or finder has acted directly or
indirectly for Seller or any of the Seller Subsidiaries in connection with
this Agreement or the transactions contemplated hereby.
2.26 Interest Rate Risk Management Instruments.
-----------------------------------------
(a) Set forth on Schedule 2.26(a) is a list as of the date
----------------
hereof of all interest rate swaps, caps, floors and option agreements
and other interest rate risk management arrangements to which Seller or
any of the Seller Subsidiaries is a party or by which any of their
properties or assets may be bound.
(b) All such interest rate swaps, caps, floors and option
agreements and other interest rate risk management arrangements to
which Seller or any of the Seller Subsidiaries is a party or by which
any of their properties or assets may be bound were entered into in the
ordinary course of business and, to the best knowledge of Seller, in
accordance with prudent banking practice and applicable rules,
regulations and policies of Regulatory Authorities and with
counterparties believed to be financially responsible at the time and
are legal, valid and binding obligations of Seller or a Seller
Subsidiary and are in full force and effect. Seller and each of the
Seller Subsidiaries has duly performed in all material respects all of
its obligations thereunder to the extent that such obligations to
perform have accrued, and to the best knowledge of Seller, there are no
material breaches, violations or defaults or allegations or assertions
of such by any party thereunder.
2.27 Accuracy of Information. The statements contained in this
-----------------------
Agreement, the Schedules and any other written document executed and
delivered by or on behalf of Seller pursuant to the terms of this Agreement
are true and correct as of the date hereof or as of the date delivered in all
material respects, and such statements and documents do not omit any material
fact necessary to make the statements contained therein not misleading.
2.28 Year 2000 Compliant. To the best knowledge of the Seller, both
-------------------
Seller and the Seller Subsidiaries have complied with regulatory bulletins
issued through February 28, 1998 by the Federal Financial Institutions
Examination Council on the subject of Year 2000 Compliance. The Seller and
the Seller Subsidiaries have exercised ordinary care in assessing Year 2000
Compliance status of all material computer software, firmware and hardware
used in the ordinary course of business as set forth on Schedule 2.28, which
-------------
is a Y2K Inventory & Risk Assessment Matrix. The Seller and the Seller
Subsidiaries shall continue to work through Closing with its vendors to
renovate or replace non-compliant computer software, firmware and hardware in
order to ensure that the testing of renovated or replaced items is
substantially underway by December 31, 1998.
- 22 -
<PAGE> 28
ARTICLE III
-----------
REPRESENTATIONS AND WARRANTIES OF THE BUYERS
As an inducement to Seller to enter into and perform its obligations
under this Agreement, and notwithstanding any examinations, inspections,
audits or other investigations made by Seller, the Buyers hereby represent
and warrant to Seller as follows:
3.01 Organization and Authority. Mercantile and Merger Sub are each
--------------------------
corporations duly organized, validly existing and in good standing under the
laws of the State of Missouri, are each qualified to do business and are each
in good standing in all jurisdictions where its ownership or leasing of
property or the conduct of its business requires it to be so qualified,
except where the failure to be so qualified would not have a Material Adverse
Effect on Mercantile and its Subsidiaries, taken as a whole, and has
corporate power and authority to own its properties and assets and to carry
on its business as it is now being conducted. Each of Mercantile and Merger
Sub is registered as a bank holding company with the Federal Reserve Board
under the BHCA.
3.02 Capitalization of Mercantile. The authorized capital stock of
----------------------------
Mercantile consists of (i) 200,000,000 shares of Mercantile Common Stock, of
which, as of March 31, 1998, 134,960,625 shares were issued and 133,115,227
were outstanding and (ii) 5,000,000 shares of preferred stock, no par value
("Mercantile Preferred Stock"), issuable in series, of which as of the date
hereof, no shares were issued and outstanding. Mercantile has designated
4,000,000 shares of Mercantile Preferred Stock as "Series A Junior
Participating Preferred Stock" and has reserved such shares under a Rights
Agreement dated May 23, 1988 between Mercantile and Mercantile Bank National
Association, as Rights Agent (the "Rights Agreement" and, the rights to be
issued pursuant thereto, the "Rights"). As of March 31, 1997, Mercantile had
reserved: (i) 13,836,802 shares of Mercantile Common Stock for issuance under
Mercantile's Shareholder Investment Plan (the "Investment Plan") and various
employee and/or director stock option, incentive and/or benefit plans
(collectively, "Mercantile Employee/Director Stock Grants"); (ii) 5,400,000
shares of Mercantile Common Stock for issuance upon the acquisition of CBT
Corporation ("CBT") pursuant to the Agreement and Plan of Merger, dated as of
January 10, 1998, by and among Mercantile, Merger Sub and CBT; and (iii)
13,800,000 shares of Mercantile Common Stock for issuance upon the
acquisition of Firstbank of Illinois ("Firstbank") pursuant to the Agreement
and Plan of Merger, dated as of January 30, 1998, by and among Mercantile,
Merger Sub and Firstbank. Mercantile has submitted to a vote of its
shareholders at the Annual Meeting of Shareholders to be held April 23, 1998
a proposal to amend Mercantile's Restated Articles of Incorporation to
increase the authorized number of shares of Mercantile Common Stock from
200,000,000 to 400,000,000. From March 31, 1998 through the date of this
Agreement, no shares of Mercantile Common Stock have been issued, excluding
any such shares which may have been issued in connection with the Investment
Plan or Mercantile Employee/Director Stock Grants.
Mercantile continually evaluates possible acquisitions and may prior to
the Effective Time enter into one or more agreements providing for, and may
consummate, the acquisition by it of another bank, association, bank holding
company, savings and loan holding company or other company (or the assets
thereof) for consideration that may include Equity Securities. In addition,
prior to the Effective Time, Mercantile may, depending on market conditions
and other factors, otherwise determine to issue equity, equity-linked or
other securities for financing purposes or repurchase its outstanding
- 23 -
<PAGE> 29
Equity Securities. Notwithstanding the foregoing, neither Mercantile nor any
Mercantile Subsidiary has taken or agreed to take any action or has any
knowledge of any fact or circumstance and neither Mercantile nor Merger Sub
will take any action that would (i) prevent the transactions contemplated
hereby from qualifying as a reorganization within the meaning of Section 368
of the Code, (ii) materially impede or delay receipt of any approval referred
to in Section 6.01(b) or the consummation of the transactions contemplated by
this Agreement or (iii) prevent or impede the Merger from qualifying for
pooling-of-interests accounting treatment. Except as set forth above, there
are no other Equity Securities of Mercantile outstanding. All of the issued
and outstanding shares of Mercantile Common Stock are validly issued, fully
paid, and nonassessable and have not been issued in violation of any
preemptive right of any shareholder of Mercantile. At the Effective Time,
the Mercantile Common Stock to be issued in the Merger will be duly
authorized, validly issued, fully paid and nonassessable, will not be issued
in violation of any preemptive right of any shareholder of Mercantile.
3.03 Authorization.
-------------
(a) Mercantile and Merger Sub each has the corporate power and
authority to enter into this Agreement and to carry out their
respective obligations hereunder. The execution, delivery and
performance of this Agreement by Mercantile and Merger Sub and the
consummation by Mercantile and Merger Sub of the transactions
contemplated hereby have been duly authorized by all requisite
corporate action of Mercantile and Merger Sub. Subject to the receipt
of such approvals of the Regulatory Authorities as may be required by
statute or regulation, this Agreement is a valid and binding obligation
of Mercantile and Merger Sub enforceable against each in accordance
with its terms.
(b) Neither the execution, delivery and performance by
Mercantile and Merger Sub of this Agreement, nor the consummation by
Mercantile and Merger Sub of the transactions contemplated hereby, nor
compliance by Mercantile and Merger Sub with any of the provisions
hereof, will (i) violate, conflict with or result in a breach of any
provisions of, or constitute a default (or an event which, with notice
or lapse of time or both, would constitute a default) or result in the
termination of, or accelerate the performance required by, or result in
a right of termination or acceleration of, or result in the creation
of, any Lien upon any of the properties or assets of Mercantile or
Merger Sub under any of the terms, conditions or provisions of (x)
their respective Articles of Incorporation or By-Laws, or (y) any note,
bond, mortgage, indenture, deed of trust, license, lease, agreement or
other instrument or obligation to which Mercantile or Merger Sub is a
party or by which they may be bound, or to which Mercantile or Merger
Sub or any of their respective properties or assets may be subject, or
(ii) subject to compliance with the statutes and regulations referred
to in subsection (c) of this Section 3.03, violate any judgment,
ruling, order, writ, injunction, decree, statute, rule or regulation
applicable to Mercantile or Merger Sub or any of their respective
properties or assets; other than violations, conflicts, breaches,
defaults, terminations, accelerations or Liens which would not have a
Material Adverse Effect on Mercantile and its Subsidiaries, taken as a
whole.
(c) Other than in connection with or in compliance with the
provisions of the Missouri Statute, the DGCL, the Securities Act, the
Exchange Act, the securities or blue sky laws of the various states or
filings, consents, reviews, authorizations, approvals
- 24 -
<PAGE> 30
or exemptions required under the BHCA, the FDI Act or any required
approvals of any other Regulatory Authority, no notice to, filing with,
exemption or review by, or authorization, consent or approval of, any
public body or authority is necessary for the consummation by
Mercantile and Merger Sub of the transactions contemplated by this
Agreement.
3.04 Mercantile Financial Statements. The consolidated balance sheets
-------------------------------
of Mercantile and its Subsidiaries as of December 31, 1997, 1996 and 1995 and
related consolidated statements of income, changes in shareholders' equity
and cash flows for each of the three years in the period ended December 31,
1997, together with the notes thereto, audited by KPMG Peat Marwick LLP, as
filed with the SEC on Form 10-K for the year ended December 31, 1997
(collectively, the "Mercantile Financial Statements"), have been prepared in
accordance with GAAP, present fairly the consolidated financial position of
Mercantile and its Subsidiaries at the dates thereof and the consolidated
results of operations, changes in shareholders' equity and cash flows of
Mercantile and its Subsidiaries for the periods stated therein and are
derived from the books and records of Mercantile and its Subsidiaries, which
are complete and accurate in all material respects and have been maintained
in accordance with good business practices. Neither Mercantile nor any of
its Subsidiaries has any material contingent liabilities that are not
described in the Mercantile Financial Statements.
3.05 Mercantile Reports. Since January 1, 1995, each of Mercantile
------------------
and its Subsidiaries has filed any and all reports, registrations and
statements, together with any required amendments thereto, that it was
required to file with any Regulatory Authority. All such reports and
statements filed with any such Regulatory Authority are collectively referred
to herein as the "Mercantile Reports." As of its respective date, each
Mercantile Report complied in all material respects with all the rules and
regulations promulgated by the applicable Regulatory Authority and did not
contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
3.06 Material Adverse Effect. Since December 31, 1997, there has been
-----------------------
no Material Adverse Effect on Mercantile and its Subsidiaries, taken as a
whole.
3.07 Registration Statement, Etc. None of the information regarding
----------------------------
Mercantile or any of its Subsidiaries to be supplied by Buyers for inclusion
or included in (i) the Registration Statement, (ii) the Proxy Statement, or
(iii) any other documents to be filed with any Regulatory Authority in
connection with the transactions contemplated hereby will, at the respective
times such documents are filed with any Regulatory Authority and, in the case
of the Registration Statement, when it becomes effective and, with respect to
the Proxy Statement, when mailed, be false or misleading with respect to any
material fact, or omit to state any material fact necessary in order to make
the statements therein not misleading or, in the case of the Proxy Statement,
at the time of the meeting of Seller's stockholders referred to in Section
5.03, be false or misleading with respect to any material fact, or omit to
state any material fact necessary to correct any statement in any earlier
communication with respect to the solicitation of any proxy for such meeting.
All documents which Mercantile or Merger Sub are responsible for filing with
any Regulatory Authority in connection with the Merger will comply as to form
in all material respects with the provisions of applicable law.
- 25 -
<PAGE> 31
3.08 Brokers and Finders. Neither Mercantile, Merger Sub nor any of
-------------------
their respective officers, directors or employees has employed any broker or
finder or incurred any liability for any financial advisory fees, brokerage
fees, commissions or finder's fees, and no broker or finder has acted
directly or indirectly for Mercantile or Merger Sub in connection with this
Agreement or the transactions contemplated hereby.
3.09 Accuracy of Information. The statements contained in this
-----------------------
Agreement and any other written document executed and delivered by or on
behalf of Buyers pursuant to the terms of this Agreement are true and correct
as of the date hereof in all material respects, and such statements and
documents do not omit any material fact necessary to make the statements
contained therein not misleading.
ARTICLE IV
----------
CONDUCT OF BUSINESSES PRIOR TO THE EFFECTIVE TIME
4.01 Conduct of Businesses Prior to the Effective Time. During the
-------------------------------------------------
period from the date of this Agreement to the Effective Time, Seller and each
of the Seller Subsidiaries shall conduct their businesses according to the
ordinary and usual course consistent with past and current practices and
shall use their best efforts to maintain and preserve their business
organization, employees and advantageous business relationships and retain
the services of their officers and key employees.
4.02 Forbearances of Seller. Except as set forth in Schedule 4.02, and
----------------------- -------------
except to the extent required by law, regulation or Regulatory Authority, or
with the prior written consent of Buyers (unless otherwise specifically noted
in this Section 4.02), during the period from the date of this Agreement to
the Effective Time, Seller shall not and shall not permit any of the Seller
Subsidiaries to:
(a) declare, set aside or pay any dividends or other
distributions, directly or indirectly, in respect of its capital stock
(other than dividends from any of the Seller Subsidiaries to Seller or
to another of the Seller Subsidiaries), except that Seller may declare
and pay regular quarterly cash dividends of not more than (i) $0.625
per share on the Seller Common Stock and (ii) accrued but unpaid
dividends on the Seller Preferred Stock; provided, however, that Seller
shall not declare or pay a quarterly dividend for any quarter in which
Seller stockholders will be entitled to receive a regular quarterly
dividend on the shares of Mercantile Common Stock to be issued in the
Merger;
(b) enter into or amend any employment, severance or similar
agreement or arrangement with any director, officer or employee, or
materially modify any of the Seller Employee Plans or grant any salary
or wage increase or materially increase any employee benefit (including
incentive or bonus payments), except (i) normal individual increases in
compensation to employees consistent with past practice, (ii) as
required by law or contract, (iii) such increases of which Seller
notifies Buyers in writing and which Buyers do not disapprove within 10
days of the receipt of such notice and (iv) pursuant to the provisions
of Section 5.10 hereof;
(c) authorize, recommend, propose or announce an intention to
authorize, recommend or propose, or enter into an agreement in
principle with respect to, any
- 26 -
<PAGE> 32
merger, consolidation or business combination (other than the Merger),
any acquisition of a material amount of assets or securities, any
disposition of a material amount of assets or securities or any release
or relinquishment of any material contract rights;
(d) propose or adopt any amendments to its Certificate or
Articles of Incorporation or other charter document or By-Laws;
(e) issue, sell, grant, confer or award any of its Equity
Securities, except that the Seller may issue up to 800 shares of Seller
Common Stock upon exercise of the Seller Stock Options outstanding on
the date of this Agreement and up to 41,666 shares of Seller Common
Stock upon conversion of the Seller Preferred Stock as provided in
Section 6.03(g), or effect any stock split or adjust, combine,
reclassify or otherwise change its capitalization as it existed on the
date of this Agreement;
(f) except as provided in Section 6.03(g), purchase, redeem,
retire, repurchase or exchange, or otherwise acquire or dispose of,
directly or indirectly, any of its Equity Securities, whether pursuant
to the terms of such Equity Securities or otherwise;
(g) without first consulting with and obtaining the written
consent of Mercantile, cause or permit TRIB to enter into, renew or
increase any loan or credit commitment (including stand-by letters of
credit) to, or invest or agree to invest in any person or entity or
modify any of the material provisions or renew or otherwise extend the
maturity date of any existing loan or credit commitment (collectively,
"Lend to") in an amount equal to or in excess of $1,000,000 or in any
amount which, when aggregated with any and all loans or credit
commitments of Seller and the Seller Subsidiaries to such person or
entity, would be equal to or in excess of 1,000,000; provided, however,
that Seller or any of the Seller Subsidiaries may make any such loan or
credit commitment in the event (A) Seller or any Seller Subsidiary has
delivered to Buyers or their designated representative a notice of its
intention to make such loan and such information as Buyers or their
designated representative may reasonably require in respect thereof and
(B) Buyers or their designated representative shall not have reasonably
objected to such loan by giving written or facsimile notice of such
objection within two (2) business days following the delivery to Buyers
or their designated representative of the notice of intention and
information as aforesaid; provided further, however, that nothing in
this paragraph shall prohibit Seller or any Seller Subsidiary from
honoring any contractual obligation in existence on the date of this
Agreement. Notwithstanding this Section 4.02(g), Seller shall be
authorized without first consulting with Buyers or obtaining Buyers'
prior written consent to cause or permit TRIB to increase the aggregate
amount of any credit facilities theretofore established in favor of any
person or entity (each a "Pre-Existing Facility"), provided that the
aggregate amount of any and all such increases shall not be in excess
of the lesser of 10% of such Pre-Existing Facilities or $250,000;
(h) directly or indirectly (including through its officers,
directors, employees or other representatives) (i) initiate, solicit or
encourage any discussions, inquiries or proposals with any third party
(other than Buyers) relating to the disposition of any significant
portion of the business or assets of Seller or any of the Seller
- 27 -
<PAGE> 33
Subsidiaries (other than in the ordinary course of business) or the
acquisition of Equity Securities of Seller or any of the Seller
Subsidiaries or the merger of Seller or any of the Seller Subsidiaries
with any person (other than Buyers) or any similar transaction (each
such transaction being referred to herein as an "Acquisition
Transaction"), (ii) provide any such person with information or
assistance or negotiate with any such person with respect to an
Acquisition Transaction, and Seller shall promptly notify Buyers orally
of all the relevant details relating to all inquiries, indications of
interest and proposals which it may receive with respect to any
Acquisition Transaction;
(i) take any action that would (i) prevent or impede the
transactions contemplated hereby from qualifying as a reorganization
within the meaning of Section 368 of the Code, (ii) materially impede
or delay the consummation of the transactions contemplated by this
Agreement or the ability of Buyers or Seller to obtain any approval of
any Regulatory Authority required for the transactions contemplated by
this Agreement or to perform its covenants and agreements under this
Agreement, or (iii) prevent or impede the Merger from qualifying for
pooling-of-interests accounting treatment;
(j) other than in the ordinary course of business consistent
with past practice, incur any indebtedness for borrowed money or
assume, guarantee, endorse or otherwise as an accommodation become
responsible or liable for the obligations of any other individual,
corporation or other entity;
(k) materially restructure or change its investment securities
portfolio, through purchases, sales or otherwise, or the manner in
which the portfolio is classified or reported, or execute individual
investment transactions for its own account of greater than $2,000,000
for U.S. Treasury or Federal Agency Securities and $250,000 for all
other investment instruments;
(l) agree in writing or otherwise to take any of the foregoing
actions or engage in any activity, enter into any transaction or
intentionally take or omit to take any other act which would make any
of the representations and warranties in Article II of this Agreement
untrue or incorrect in any material respect if made anew after engaging
in such activity, entering into such transaction, or taking or omitting
such other act; or
(m) enter into, increase or renew any loan or credit commitment
(including lines of credit) if the principal amount thereof is, or,
when aggregated with other loans or credit commitments, would be in
excess of $20,000 to any executive officer or director of Seller or any
of the Seller Subsidiaries (other than a non-employee director), any
holder of 10% or more of the outstanding shares of Seller Common Stock,
or any entity controlled, directly or indirectly, by any of the
foregoing or engage in any transaction with any of the foregoing which
is of the type or nature sought to be regulated in 12 U.S.C. Sec. 371c
and 12 U.S.C. Sec. 371c-1, without first obtaining the prior written
consent of Buyers, which consent shall not be unreasonably withheld.
For purposes of this subsection (m), "control" shall have the meaning
associated with that term under 12 U.S.C. Sec. 371c.
- 28 -
<PAGE> 34
4.03 Forbearances of the Buyers. During the period from the date of
--------------------------
this Agreement to the Closing Date, the Buyers shall not, without the prior
consent of Seller, agree in writing or otherwise to engage in any activity,
enter into any transaction or take or omit to take any other action:
(a) that would (i) prevent or impede the transactions
contemplated hereby from qualifying as a reorganization within the
meaning of Section 368 of the Code, (ii) materially impede or delay the
consummation of the transactions contemplated by this Agreement or the
ability of Mercantile or Seller to obtain any necessary approvals of
any Regulatory Authority required for the transactions contemplated by
this Agreement or to perform its covenants and agreements under this
Agreement, or (iii) prevent or impede the Merger from qualifying for
pooling-of-interests accounting treatment; or
(b) which would make any of the representations and warranties
of Article III of this Agreement untrue or incorrect in any material
respect if made anew after engaging in such activity, entering into
such transaction, or taking or omitting such other action.
ARTICLE V
---------
ADDITIONAL AGREEMENTS
5.01 Access and Information; Due Diligence. Buyers and Seller shall
-------------------------------------
each afford to the other, and to the other's accountants, counsel and other
representatives, full access during normal business hours, during the period
prior to the Effective Time, to all their respective properties, books,
contracts, commitments and records and, during such period, each shall
furnish promptly to the other (i) a copy of each report, schedule and other
document filed or received by it during such period pursuant to the
requirements of federal and state securities laws and (ii) all other
information concerning its business, properties and personnel as the other
may reasonably request. Each party shall, and shall cause its advisors and
representatives to, (A) hold confidential all information obtained in
connection with any transaction contemplated hereby with respect to the other
party and its Subsidiaries which is not otherwise public knowledge, (B) in
the event of a termination of this Agreement, return all documents (including
copies thereof) obtained hereunder from the other party or any of its
Subsidiaries to such other party or its Subsidiaries and (C) use its best
efforts to cause all information obtained pursuant to this Agreement or in
connection with the negotiation of this Agreement to be treated as
confidential and not use, or knowingly permit others to use, any such
information unless such information becomes generally available to the
public.
5.02 Registration Statement; Regulatory Matters.
------------------------------------------
(a) Mercantile shall prepare and, subject to the review and
consent of Seller and Seller's legal counsel and accountants with
respect to matters relating to Seller, file with the SEC, within sixty
(60) days of the date of this Agreement, the Registration Statement (or
the equivalent in the form of preliminary proxy materials) with respect
to the shares of Mercantile Common Stock to be issued in the Merger and
the exercise of the Seller Stock Options after the Effective Time.
Mercantile shall promptly prepare and, subject to the review and
consent of Seller with respect to matters relating to Seller file,
within sixty (60) days of the date of this Agreement, an application
for approval of
- 29 -
<PAGE> 35
the Merger with the Federal Reserve Board, and such additional
regulatory authorities as may require an application, and shall use its
best efforts to cause the Registration Statement to become effective.
Mercantile shall also take any action required to be taken under any
applicable state blue sky or securities laws in connection with the
issuance of such shares and the exercise of such options, and Seller
and the Seller Subsidiaries shall furnish Mercantile all information
concerning Seller and the Seller Subsidiaries and the shareholders
thereof as Mercantile may reasonably request in connection with any
such action.
(b) Seller and Buyers shall cooperate and use their respective
best efforts to prepare all documentation, to effect all filings and to
obtain all permits, consents, approvals and authorizations of all third
parties and Regulatory Authorities necessary to consummate the
transactions contemplated by this Agreement and, as and if directed by
Mercantile, to consummate such other transactions by and among
Mercantile's Subsidiaries and the Seller Subsidiaries concurrently with
or following the Effective Time, provided, however, that such actions
do not: (i) prevent or impede the transactions contemplated hereby
from qualifying as a reorganization within the meaning of Section 368
of the Code; (ii) materially impede or delay the receipt of any
approval referred to in Section 6.01(b); (iii) prevent or impede the
transactions contemplated hereby from qualifying for pooling-of-interests
accounting treatment unless Buyers first waive Seller's covenants in
Sections 5.02(b) and 5.16 hereof and the condition to Buyers' obligation
to consummate the Merger set forth in Section 6.03(f) hereof; or (iv)
materially impede or delay the consummation of the transactions
contemplated by this Agreement.
5.03 Stockholder Approval. Seller shall call a special meeting of its
--------------------
stockholders to be held as soon as is reasonably possible for the purpose of
voting upon this Agreement and the Merger and related matters. In connection
with such meeting, Mercantile shall prepare, subject to the review and
consent of Seller, the Proxy Statement (which shall be part of the
Registration Statement to be filed with the SEC by Mercantile) and mail the
same to the stockholders of Seller. The Board of Directors of Seller shall
submit for approval of Seller's stockholders the matters to be voted upon at
such meeting. The Board of Directors of Seller hereby does and, subject to
the fiduciary duties of the Seller's Board of Directors, as advised by
outside legal counsel, will recommend this Agreement and the transactions
contemplated hereby to the stockholders of Seller and use its reasonable best
efforts to obtain any vote of Seller's stockholders necessary for the
approval of this Agreement.
5.04 Current Information. During the period from the date of this
-------------------
Agreement to the Closing Date, (i) each party will promptly furnish the other
with copies of all monthly and other interim financial statements as the same
become available and shall cause one or more of its designated
representatives to confer on a regular and frequent basis with
representatives of the other party and (ii) Mercantile shall promptly furnish
to the Seller copies of all filings by Mercantile with each of the Federal
Reserve Board and the SEC. Each party shall promptly notify the other party
of the following events immediately upon learning of the occurrence thereof,
describing the same and, if applicable, the steps being taken by the affected
party with respect thereto: (a) the occurrence of any event which could cause
any representation or warranty of such party or any schedule, statement,
report, notice, certificate or other writing furnished by such party to be
untrue or misleading in any material respect; (b) any Material Adverse
Effect; (c) the issuance or commencement of any governmental and/or
regulatory agency complaint, investigation or hearing or any communications
indicating that the same may be
- 30 -
<PAGE> 36
contemplated and, as to any such matter which shall now or hereafter be in
effect, any communications pertaining thereto; or (d) the institution or the
threat of any material litigation involving such party.
5.05 Conforming Entries.
------------------
(a) Notwithstanding that Seller believes that Seller and Seller
Subsidiaries have established all reserves and taken all provisions for
possible loan losses required by GAAP and applicable laws, rules and
regulations, Seller recognizes that Buyers may have adopted different
loan, accrual and reserve policies (including loan classifications and
levels of reserves for possible loan losses). From and after the date
of this Agreement, Seller and Buyers shall consult and cooperate with
each other with respect to conforming the loan, accrual and reserve
policies of Seller and the Seller Subsidiaries to those policies of
Buyers, as specified in each case in writing to Seller, based upon such
consultation and as hereinafter provided.
(b) In addition, from and after the date of this Agreement,
Seller and Buyers shall consult and cooperate with each other with
respect to determining appropriate Seller accruals, reserves and
charges to establish and take in respect of excess equipment write-off
or write-down of various assets and other appropriate charges and
accounting adjustments taking into account the parties' business plans
following the Merger, as specified in each case in writing to Seller,
based upon such consultation and as hereinafter provided.
(c) Seller and Buyers shall consult and cooperate with each
other with respect to determining the amount and the timing for
recognizing for financial accounting purposes Seller's expenses of the
Merger and the restructuring charges, if any, related to or to be
incurred in connection with the Merger.
(d) With respect to clauses (a) through (c) of this Section
5.05, it is the objective of Mercantile and Seller that such reserves,
accruals, charges and divestitures, if any, to be taken shall be
consistent with GAAP.
5.06 Environmental Reports. Buyers may perform, as soon as reasonably
---------------------
practicable, but not later than ninety (90) days after the date hereof, and
pay for, a phase one environmental investigation and/or asbestos survey by
Environmental Operations, Inc. or any other firm designated by Buyers, or any
of them, on all real property owned, leased or operated by Seller or any of
the Seller Subsidiaries as of the date hereof (but excluding space in retail
and similar establishments leased by Seller for automatic teller machines or
leased bank branch facilities where the space leased comprises less than 20%
of the total space leased to all tenants of such property) and within fifteen
(15) days after being notified by Sellers of the acquisition or lease of any
real property acquired or leased by Seller or any of the Seller Subsidiaries
after the date hereof (but excluding space in retail and similar
establishments leased by Seller for automatic teller machines or leased bank
facilities where the space leased comprises less than 20% of the total space
leased to all tenants of such property). If the results of the phase one
investigation indicate, in Buyers' reasonable opinion, that additional
investigation is warranted, Buyers may perform, at Buyers' expense, a phase
two subsurface investigation or investigations by Environmental Operations,
Inc. on properties deemed to warrant such additional study. Buyers shall
perform any such phase two investigation as soon as reasonably practicable
after receipt of the phase one report(s) for such properties and, in any
event, shall notify Seller and Environmental
- 31 -
<PAGE> 37
Operations, Inc. within fifteen (15) days after receipt of the phase one
report that Environmental Operations, Inc. should promptly commence any such
phase two investigation. Should the cost of taking all remedial or other
corrective actions and measures (i) required by applicable law or (ii)
recommended by Environmental Operations, Inc. in such phase one or two report
or reports, in the aggregate, exceed the sum of $750,000, as reasonably
estimated by Environmental Operations, Inc., or if the cost of such actions
or measures cannot be so reasonably estimated by Environmental Operations,
Inc. to be such amounts or less with any reasonable degree of certainty,
Buyers shall have the right pursuant to Section 7.01(e) hereof, for a period
of fifteen (15) business days following receipt from Environmental
Operations, Inc. of such estimate or indication that the cost of such actions
and measures cannot be so reasonably estimated, to terminate this Agreement.
5.07 Agreements of Affiliates. Set forth as Schedule 5.07 is a list
------------------------ -------------
(which includes all individual and beneficial ownership and also identifies
how all such beneficially owned shares are registered on the stock record
book of Seller) of all persons whom Seller believes to be "affiliates" of
Seller for purposes of Rule 145 under the Securities Act and for pooling-of-
interests accounting treatment. Seller shall use its best efforts to cause
each person who is identified as an "affiliate" to deliver to Mercantile, as
of the date hereof, or as soon as practicable hereafter, a written agreement
in substantially the form set forth as Exhibit A to this Agreement providing
---------
that each such person will agree not to sell, pledge, transfer or otherwise
dispose of the shares of Mercantile Common Stock to be received by such
person in the Merger during the period designated in such letter and
thereafter in compliance with the applicable provisions of the Securities
Act. Prior to the Closing Date, and via letter, Seller shall amend and
supplement Schedule 5.07 and use its best efforts to cause each additional
-------------
person who is identified as an "affiliate" to execute a written agreement as
provided in this Section 5.07.
5.08 Expenses. Each party hereto shall bear its own expenses incident
--------
to preparing, entering into and carrying out this Agreement and to
consummating the Merger; provided, however, that any and all fees (excluding
reasonable out-of-pocket expenses) paid by Seller to its legal counsel,
Winthrop & Weinstine, P.A., related to the preparation of this Agreement and
all other agreements and documentation in connection with the consummation of
the transactions contemplated herein, shall not exceed $125,000; provided
further, however, that Buyers shall pay all printing expenses and filing fees
incurred in connection with this Agreement, the Registration Statement and
the Proxy Statement.
5.09 Miscellaneous Agreements and Consents.
-------------------------------------
(a) Subject to the terms and conditions herein provided, each
of the parties hereto agrees to use its respective best efforts to
take, or cause to be taken, all actions, and to do, or cause to be
done, all things necessary, proper or advisable under applicable laws
and regulations to consummate and make effective the transactions
contemplated by this Agreement as expeditiously as possible, including,
without limitation, using its respective best efforts to lift or
rescind any injunction or restraining order or other order adversely
affecting the ability of the parties to consummate the transactions
contemplated hereby. Each party shall, and shall cause each of its
respective Subsidiaries to, use its best efforts to obtain consents of
all third parties and Regulatory Authorities necessary or, in the
opinion of Buyers, desirable for the consummation of the transactions
contemplated by this Agreement.
(b) Seller, prior to the Effective Time, shall (i) consult and
cooperate with Buyers regarding the implementation of those policies
and procedures established by
- 32 -
<PAGE> 38
Buyers for its governance and that of its Subsidiaries and not
otherwise referenced in Section 5.05 hereof, including, without
limitation, policies and procedures pertaining to the accounting,
asset/liability management, audit, credit, human resources, treasury
and legal functions, and (ii) at the reasonable request of Buyers,
conform Seller's existing policies and procedures in respect of such
matters to Buyers' policies and procedures or, in the absence of any
existing Seller policy or procedure regarding any such function,
introduce Buyers' policies or procedures in respect thereof, unless to
do so would cause Seller or any of the Seller Subsidiaries to be in
violation of any law, rule or regulation or requirement of any
Regulatory Authority having jurisdiction over Seller and/or the Seller
Subsidiary affected thereby.
5.10 Employee Agreements and Benefits.
--------------------------------
(a) Following the Effective Time, Buyers shall cause the
Surviving Corporation to honor in accordance with their terms all
employment, severance and other compensation contracts set forth on
Schedule 2.11(b) between Seller, any of the Seller Subsidiaries, and
----------------
any current or former director, officer, employee or agent thereof, and
all provisions for vested benefits or other vested amounts earned or
accrued through the Effective Time under the Seller Employee Plans;
provided, however, that Seller Employee Plans that cover Employee Stock
Options shall be governed by Section 5.15.
(b) Subject to Section 5.15, the provisions of the Seller Stock
Plans and any other plan, program or arrangement providing for the
issuance or grant of any other interest in respect of the Equity
Securities of Seller or any of the Seller Subsidiaries shall be deleted
and terminated as of the Effective Time.
(c) Except as set forth in Section 5.10(b) hereof, the Seller
Employee Plans shall not be terminated by reason of the Merger but
shall continue thereafter as plans of the Surviving Corporation until
such time as the employees of Seller and the Seller Subsidiaries are
integrated into Mercantile's employee benefit plans that are available
to other employees of Mercantile and its Subsidiaries, subject to the
terms and conditions specified in such plans and to such changes
therein as may be necessary to reflect the consummation of the Merger.
Mercantile shall take such steps as are necessary or required to
integrate the employees of Seller and the Seller Subsidiaries into
Mercantile's employee benefit plans available to other employees of
Mercantile and its Subsidiaries as soon as practicable after the
Effective Time, with (i) full credit for prior service with Seller or
any of the Seller Subsidiaries for purposes of vesting and eligibility
for participation and benefit allocation (but not benefit accruals
under any defined benefit plan), and co-payments and deductibles, (ii)
waiver of all waiting periods, evidence of insurability and pre-existing
condition exclusions or penalties, and (iii) full credit for claims
arising prior to the Effective Time for purposes of deductibles, out-of-
pocket maximums, benefit maximums and all other similar limitations for
the applicable plan year in which the Merger is consummated.
5.11 Press Releases. Seller and the Buyers shall consult with each
--------------
other as to the form, substance and timing of any proposed press release or
other proposed public disclosure of matters related to this Agreement or any
of the transactions contemplated hereby.
- 33 -
<PAGE> 39
5.12 State Takeover Statutes. Seller will take all steps necessary to
-----------------------
exempt the transactions contemplated by this Agreement and any agreement
contemplated hereby from, and if necessary challenge the validity of, any
applicable state takeover law.
5.13 Directors' and Officers' Indemnification. Mercantile agrees that
----------------------------------------
the Merger shall not affect or diminish any of the duties and obligations of
indemnification of Seller existing as of the Effective Time in favor of
employees, agents, directors or officers of Seller arising by virtue of its
Articles of Incorporation or By-Laws in the form in effect at the date of
this Agreement or arising by operation of law or arising by virtue of any
contract, resolution or other agreement or document existing at the date of
this Agreement, and Mercantile shall continue such duties and obligations in
full force and effect for so long as they would (but for the Merger)
otherwise survive and continue in full force and effect. With respect to
directors, officers, employees or agents of TRIB, Mercantile agrees to
provide indemnification to such persons to the full extent permitted under
Article Tenth of the Articles of Association of TRIB as if such
indemnification was mandatory under such Article, subject only to the
restrictions and limitations set forth in such Article. To the extent that
Seller's existing directors' and officers' liability insurance policy would
provide coverage for any action or omission occurring prior to the Effective
Time, Seller agrees to give proper notice to the insurance carrier and to
Mercantile of any potential claim thereunder so as to preserve Seller's
rights to such insurance coverage. Mercantile represents that the directors'
and officers' liability insurance policy maintained by it provides for
coverage of "prior acts" for directors and officers of entities acquired by
Mercantile including Seller and the Seller Subsidiaries on and after the
Effective Time. After the Effective Time, Mercantile will provide, or cause
to be provided, such coverage to the officers and directors of Seller to the
same extent as provided to officer and directors of Mercantile's other
Subsidiaries.
5.14 Tax Opinion Certificates. Seller shall cause such of its
------------------------
executive officers and directors as may be reasonably requested by Thompson
Coburn to timely execute and deliver to Thompson Coburn a certificate
substantially in the form of Exhibit B hereto.
---------
5.15 Employee Stock Options.
----------------------
(a) At the Effective Time, all rights with respect to Seller
Common Stock pursuant to Seller Stock Options that are outstanding at
the Effective Time, whether or not then exercisable, shall be converted
into and become rights with respect to Mercantile Common Stock, and
Mercantile shall assume all Seller Stock Options in accordance with the
terms of the Seller Stock Plan under which it was issued and the Seller
Stock Option Agreement by which it is evidenced. From and after the
Effective Time, (i) each Seller Stock Option assumed by Mercantile
shall be exercised solely for shares of Mercantile Common Stock, (ii)
the number of shares of Mercantile Common Stock subject to each Seller
Stock Option shall be equal to the number of shares of Seller Common
Stock subject to such Seller Stock Option immediately prior to the
Effective Time multiplied by the Exchange Ratio and (iii) the per share
exercise price under each Seller Stock Option shall be adjusted by
dividing the per share exercise price under such Seller Stock Option by
the Exchange Ratio and rounding down to the nearest cent; provided,
however, that the terms of each Seller Stock Option shall, in
accordance with its terms, be subject to further adjustment as
appropriate to reflect any stock split, stock dividend,
recapitalization or other similar transaction subsequent to the
Effective Time. It is intended that the foregoing assumption shall be
undertaken in a manner that will not
- 34 -
<PAGE> 40
constitute a "modification" as defined in the Code, as to any Seller
Stock Option that is an "incentive stock option" as defined under the
Code.
(b) The shares of Mercantile Common Stock covered by the Seller
Stock Options shall be covered by an effective registration statement
filed on Form S-8 with the SEC and shall be duly authorized, validly
issued and in compliance with all applicable federal and state
securities laws, fully paid and nonassessable and not subject to or in
violation of any preemptive rights. Mercantile shall maintain the
effectiveness of such registration statement and any successor
registration statement (and maintain current status of the prospectus
contained therein or any successor prospectus) for as long as such
options remain outstanding. Mercantile shall at and after the
Effective Time have reserved sufficient shares of Mercantile Common
Stock for issuance with respect to such options. Mercantile shall also
take any action required to be taken under any applicable state blue
sky or securities laws in connection with the issuance of such shares.
5.16 Best Efforts to Insure Pooling. Each of Mercantile and Seller
------------------------------
undertakes and agrees to use its best efforts to cause the Merger to qualify
for pooling-of-interests accounting treatment.
ARTICLE VI
----------
CONDITIONS
6.01 Conditions to Each Party's Obligation To Effect the Merger. The
----------------------------------------------------------
respective obligations of each party to effect the Merger shall be subject to
the fulfillment or waiver at or prior to the Effective Time of the following
conditions:
(a) Stockholder Approval. The approval of this Agreement and
--------------------
the Merger shall have received the requisite vote of stockholders of
Seller at the special meeting of stockholders called pursuant to
Section 5.03 hereof.
(b) Regulatory Approval. This Agreement and the transactions
-------------------
contemplated hereby shall have been approved by the Federal Reserve
Board and any other federal and/or state regulatory agencies whose
approval is required for consummation of the transactions contemplated
hereby, and all requisite waiting periods imposed by the foregoing
shall have expired.
(c) Effectiveness of Registration Statement. The Registration
---------------------------------------
Statement shall have been declared effective and shall not be subject
to a stop order or any threatened stop order.
(d) No Judicial Prohibition. Neither Seller, Mercantile nor
-----------------------
Merger Sub shall be subject to any order, decree or injunction of a
court or agency of competent jurisdiction which enjoins or prohibits
the consummation of the Merger.
- 35 -
<PAGE> 41
(e) Tax Opinion. Each of Buyers and Seller shall have received
-----------
from Thompson Coburn an opinion (which opinion shall not have been
withdrawn at or prior to the Effective Time) reasonably satisfactory in
form and substance to it to the effect that (i) the Merger will
constitute a reorganization within the meaning of Section 368 of the
Code, (ii) each of the Buyers and Seller will constitute a "party to
the reorganization" within the meaning of Section 368(b) of the Code,
and (iii) consequently, Code Sections 361, 362 and 1032 will apply to
the parties to the reorganization as appropriate, subject to any
applicable statutory, regulatory or judicial limitations, and, to the
effect that, as a result of the Merger, except with respect to
fractional share interests and assuming that such Seller Common Stock
is a capital asset in the hands of the holder thereof at the Effective
Time, (A) holders of Seller Common Stock who receive Mercantile Common
Stock in the Merger will not recognize gain or loss for federal income
tax purposes on the receipt of such stock, (B) the basis of such
Mercantile Common Stock will equal the basis of the Seller Common Stock
for which it is exchanged, and (C) and the holding period of such
Mercantile Common Stock will include the holding period of the Seller
Common Stock for which it is exchanged.
6.02 Conditions to Obligations of Seller. The obligations of Seller
-----------------------------------
to effect the Merger shall be subject to the fulfillment or waiver at or
prior to the Effective Time of the following additional conditions:
(a) Representations and Warranties. The representations and
------------------------------
warranties of Buyers set forth in Article III of this Agreement shall
be true and correct in all material respects as of the date of this
Agreement and as of the Effective Time (as though made on and as of the
Effective Time, except (i) to the extent such representations and
warranties are by their express provisions made as of a specified date
or period, (ii) where the facts which caused the failure of any
representation or warranty to be so true and correct have not resulted,
and are not likely to result, in a Material Adverse Effect on
Mercantile and its Subsidiaries, taken as a whole, and (iii) for the
effect of transactions contemplated by this Agreement), and Seller
shall have received a certificate of any Executive Vice President of
Mercantile, signing solely in his capacity as an officer of Mercantile,
to such effect.
(b) Performance of Obligations. Buyers shall have performed in
--------------------------
all material respects all obligations required to be performed by it
under this Agreement prior to the Effective Time, and Seller shall have
received a certificate of any Executive Vice President of Mercantile,
signing solely in his capacity as an officer of Mercantile, to that
effect.
(c) Permits, Authorizations, etc. Buyers shall have obtained
-----------------------------
any and all material permits, authorizations, consents, waivers and
approvals required for the lawful consummation of the Merger.
(d) No Material Adverse Effect. Since the date of this
--------------------------
Agreement, there shall have been no Material Adverse Effect on
Mercantile and its Subsidiaries, taken as a whole.
- 36 -
<PAGE> 42
(e) Opinion of Counsel. Mercantile shall have delivered to
------------------
Seller an opinion of Mercantile's counsel dated as of the Closing Date
or a mutually agreeable earlier date in substantially the form set
forth as Exhibit C to this Agreement.
---------
6.03 Conditions to Obligations of the Buyers. The obligations of the
---------------------------------------
Buyers to effect the Merger shall be subject to the fulfillment at or prior
to the Effective Time of the following additional conditions:
(a) Representations and Warranties. The representations and
------------------------------
warranties of Seller set forth in Article II of this Agreement shall be
true and correct in all material respects as of the date of this
Agreement and as of the Effective Time (as though made on and as of the
Effective Time, except (i) to the extent such representations and
warranties are by their express provisions made as of a specific date
or period, (ii) where the facts which caused the failure of any
representation or warranty to be so true and correct have not resulted,
and are not likely to result, in a Material Adverse Effect on Seller
and its Subsidiaries, taken as a whole, and (iii) for the effect of
transactions contemplated by this Agreement) and Buyers shall have
received a certificate of the Chief Executive Officer and Chief
Accounting Officer of Seller, signing solely in their capacities as
officers of Seller, to such effect.
(b) Performance of Obligations. Seller shall have performed in
--------------------------
all material respects all obligations required to be performed by it
under this Agreement prior to the Effective Time, and Buyers shall have
received a certificate of the Chief Executive Officer and Chief
Accounting Officer, signing solely in their capacities as officers of
Seller, to that effect.
(c) Permits, Authorizations, etc. Seller shall have obtained
-----------------------------
any and all material permits, authorizations, consents, waivers and
approvals required for the lawful consummation by it of the Merger.
(d) No Material Adverse Effect. Since the date of this
--------------------------
Agreement, there shall have been no Material Adverse Effect on Seller
and the Seller Subsidiaries, taken as a whole.
(e) Opinion of Counsel. Seller shall have delivered to Buyers
------------------
an opinion of Seller's counsel dated as of the Closing Date or a
mutually agreeable earlier date in substantially the form set forth as
Exhibit D to this Agreement.
---------
(f) Pooling Letter. The Buyers shall have received as soon as
--------------
practicable after the date of this Agreement a letter of KPMG Peat
Marwick LLP, reasonably satisfactory in form and substance to the
Buyers, to the effect that the Merger will qualify for pooling-of-
interests accounting treatment, which letter shall have not been
withdrawn.
(g) Conversion of Securities. Prior to the Effective Time,
------------------------
Seller and each of the holders of Seller Preferred Stock shall have
agreed to convert such securities to Seller Common Stock, all actions
required to effect such conversion shall have been taken and the
conversion, itself, shall have been concluded.
- 37 -
<PAGE> 43
ARTICLE VII
-----------
TERMINATION, AMENDMENT AND WAIVER
7.01 Termination. This Agreement may be terminated at any time prior
-----------
to the Closing Date, whether before or after approval by the shareholders of
Seller:
(a) by mutual consent by the Executive Committee of the Board
of Directors of Mercantile and by the Board of Directors of Seller;
(b) by the Executive Committee of the Board of Directors of
Mercantile or the Board of Directors of Seller at any time after
February 1, 1999 if the Merger shall not theretofore have been
consummated (provided that the terminating party is not then in
material breach of any representation, warranty, covenant or other
agreement contained herein);
(c) by the Executive Committee of the Board of Directors of
Mercantile or the Board of Directors of Seller if (i) the Federal
Reserve Board or any other federal and/or state regulatory agency whose
approval is required for the consummation of the transactions
contemplated hereby has denied approval of the Merger and such denial
has become final and nonappealable or (ii) the stockholders of Seller
shall not have approved this Agreement at the meeting referred to in
Section 5.03;
(d) by the Executive Committee of the Board of Directors of
Mercantile, on the one hand, or by the Board of Directors of Seller, on
the other hand, in the event of a material volitional breach by the
other party to this Agreement of any representation, warranty, covenant
or agreement contained herein, which breach is not cured within 30 days
after written notice thereof is given to the breaching party by the
non-breaching party or is not waived by the non-breaching party during
such period; or
(e) by the Executive Committee of the Board of Directors of
Mercantile pursuant to and in accordance with the provisions of Section
5.06 hereof.
7.02 Effect of Termination. In the event of termination of this
---------------------
Agreement as provided in Section 7.01 above, this Agreement shall forthwith
become void and there shall be no liability on the part of Buyers or Seller
or their respective officers or directors except as set forth in the second
sentence of Section 5.01 and in Sections 5.08 and 8.02, and except that no
termination of this Agreement pursuant to Section 7.01(d) shall relieve the
breaching party of any liability to the non-breaching party hereto arising
from the intentional, deliberate or willful breach of any representation,
warranty, covenant or agreement contained herein, after giving notice to such
breaching party and an opportunity to cure as set forth in Section 7.01(d).
7.03 Amendment. This Agreement, the Exhibits and the Schedules hereto
---------
may be amended by the parties hereto, by action taken by or on behalf of the
Executive Committee of the Board of Directors of Mercantile and the
respective Boards of Directors of Merger Sub or Seller, at any time before or
after approval of this Agreement by the stockholders of Seller; provided,
however, that after any such approval by the stockholders of Seller no such
modification shall (A) alter or change the amount or kind of Merger
Consideration to be received by holders of Seller Common Stock as provided
- 38 -
<PAGE> 44
in this Agreement or (B) adversely affect the tax treatment to holders of
Seller Common Stock as a result of the receipt of the Merger Consideration.
This Agreement, the Exhibits and the Schedules hereto may not be amended
except by an instrument in writing signed on behalf of each of Buyers and
Seller.
7.04 Waiver. Any term, condition or provision of this Agreement may
------
be waived in writing at any time by the party which is, or whose shareholders
or stockholders, as the case may be, are, entitled to the benefits thereof.
ARTICLE VIII
------------
GENERAL PROVISIONS
8.01 Non-Survival of Representations, Warranties and Agreements. No
----------------------------------------------------------
investigation by the parties hereto made heretofore or hereafter shall affect
the representations and warranties of the parties which are contained herein
and each such representation and warranty shall survive such investigation.
Except as set forth below in this Section 8.01, all representations,
warranties and agreements in this Agreement of Buyers and Seller or in any
instrument delivered by Buyers or Seller pursuant to or in connection with
this Agreement shall expire at the Effective Time or upon termination of this
Agreement in accordance with its terms. In the event of consummation of the
Merger, the agreements contained in or referred to in Sections 1.05-1.11,
5.02(b), 5.08, 5.10, 5.13 and 5.15 shall survive the Effective Time. In the
event of termination of this Agreement in accordance with its terms, the
agreements contained in or referred to in the second sentence of Section 5.01
and Sections 5.08, 7.02 and 8.02 shall survive such termination.
8.02 Indemnification. Buyers and Seller (hereinafter, in such
---------------
capacity being referred to as the "Indemnifying Party") agree to indemnify
and hold harmless each other and their officers, directors and controlling
persons (each such other party being hereinafter referred to, individually
and/or collectively, as the "Indemnified Party") against any and all losses,
claims, damages or liabilities, joint or several, to which the Indemnified
Party may become subject under the Securities Act, the Exchange Act or other
federal or state law or regulation, at common law or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof):
(a) arise primarily out of any information furnished to the Indemnified Party
by the Indemnifying Party and included in the Registration Statement as
originally filed or in any amendment therefor or supplement thereof, or in
the Proxy Statement, or in any amendment therefor or supplement thereof, or
are based primarily upon any untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement as originally filed
or in any amendment therefor or supplement thereof, or in the Proxy
Statement, or in any amendment therefor or supplement thereof, and provided
for inclusion thereof by the Indemnifying Party or (b) arise primarily out of
or are based primarily upon the omission or alleged omission by the
Indemnifying Party to state in the Registration Statement as originally filed
or in any amendment therefor or supplement thereof, or in the Proxy
Statement, or in any amendment therefor or supplement thereof, a material
fact required to be stated therein or necessary to make the statements made
therein not misleading, and agrees to reimburse each such Indemnified Party,
as incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action.
8.03 No Assignment; Successors and Assigns. This Agreement shall be
-------------------------------------
binding upon and inure to the benefit of the parties hereto and their
respective successors (including any corporation deemed to be a successor
corporation of any of the parties by operation of law) and assigns, but
neither
- 39 -
<PAGE> 45
this Agreement nor any right or obligation set forth in any provision hereof
may be transferred or assigned (except by operation of law) by any party
hereto without the prior written consent of all other parties, and any
purported transfer or assignment in violation of this Section 8.03 shall be
void and of no effect. There shall not be any third party beneficiaries of
any provisions hereof except for Sections 1.09, 1.10, 1.11, 5.10, 5.13, 5.15
and 8.02 which may be enforced against Mercantile or Seller, as the case may
be, by the parties therein identified or described.
8.04 Severability. Whenever possible, each provision of this
------------
Agreement shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement shall be held to
be prohibited by or invalid under applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remaining provisions of this Agreement.
8.05 No Implied Waiver. No failure or delay on the part of any party
-----------------
hereto to exercise any right, power or privilege hereunder or under any
instrument executed pursuant hereto shall operate as a waiver nor shall any
single or partial exercise of any right, power or privilege preclude any
other or further exercise thereof or the exercise of any other right, power
or privilege.
8.06 Headings. Article, section, subsection and paragraph titles,
--------
captions and headings herein are inserted only as a matter of convenience and
for reference, and in no way define, limit, extend or describe the scope of
this Agreement or the intent of any provision hereof.
8.07 Entire Agreement. This Agreement and the Schedules and Exhibits
----------------
hereto constitute the entire agreement between the parties with respect to
the subject matter hereof and supersede all prior negotiations,
representations, warranties, commitments, offers, letters of interest or
intent, proposal letters, contracts, writings or other agreements or
understandings with respect thereto. No waiver, and no modification or
amendment, of any provision of this Agreement, shall be effective unless
specifically made in writing and duly signed by all parties thereto.
8.08 Counterparts. This Agreement may be executed in one or more
------------
counterparts, and any party to this Agreement may execute and deliver this
Agreement by executing and delivering any of such counterparts, each of which
when executed and delivered shall be deemed to be an original and all of
which taken together shall constitute one and the same instrument.
8.09 Notices. All notices and other communications hereunder shall be
-------
in writing and shall be deemed to be duly received (a) on the date given if
delivered personally or by cable, telegram, telex or facsimile or (b) on the
date received if mailed by registered or certified mail (return receipt
requested), to the parties at the following addresses (or at such other
address for a party as shall be specified by like notice):
- 40 -
<PAGE> 46
(i) if to the Buyers:
Mercantile Bancorporation Inc.
Mercantile Tower
P.O. Box 524
St. Louis, MO 63166-0524
Attention: John W. Rowe
Executive Vice President
Facsimile: (314) 425-2752
Copy to:
Jon W. Bilstrom, Esq.
General Counsel
Mercantile Bancorporation Inc.
Mercantile Tower
P.O. Box 524
St. Louis, MO 63166-0524
Facsimile: (314) 425-1386
and
Robert M. LaRose, Esq.
Thompson Coburn
One Mercantile Center
St. Louis, Missouri 63101
Facsimile: (314) 552-7000
(ii) if to Seller:
Financial Services Corporation of the Midwest
224 18th Street, Suite 202
Rock Island, IL 61201
Attention: Douglas M. Kratz
Chairman and Chief Executive Officer
Perry B. Hansen
President
Facsimile: (309) 794-1895
- 41 -
<PAGE> 47
Copy to:
Richard A. Hoel, Esq.
Winthrop & Weinstine, P.A.
3000 Dain Rauscher Plaza
60 South Sixth Street
Minneapolis, MN 55402
Facsimile: (612) 347-0600
8.10 Governing Law. This Agreement shall be governed by and
-------------
controlled as to validity, enforcement, interpretation, effect and in all
other respects by the internal laws of the State of Missouri applicable to
contracts made in that state.
8.11 Knowledge. "Knowledge" or "best knowledge" when used with
---------
respect to a person shall mean those facts that are known or reasonably
should be known by the executive officers of such person.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed by their respective officers thereunto duly authorized and their
respective corporate seals to be affixed hereto, all as of the date first
written above.
Attest: MERCANTILE BANCORPORATION INC.
/s/ David W. Grant /s/ John W. Rowe
- -------------------------- By:----------------------------------------------
David W. Grant John W. Rowe
Executive Vice President, Mercantile Bank
National Association, Authorized Officer
Attest: AMERIBANC, INC.
/s/ David W. Grant /s/ John W. Rowe
- -------------------------- By:----------------------------------------------
David W. Grant John W. Rowe
Vice President
- 42 -
<PAGE> 48
Attest: FINANCIAL SERVICES CORPORATION
OF THE MIDWEST
/s/ Perry B. Hansen /s/ Douglas M. Kratz
- -------------------------- By:----------------------------------------------
Perry B. Hansen, President Douglas M. Kratz
Chairman and Chief Executive Officer
- 43 -
<PAGE> 1
VOTING AGREEMENT
This Voting Agreement dated as of April 13, 1998, is entered into by
and between Mercantile Bancorporation Inc. ("Mercantile"), and the
undersigned director and stockholder ("Stockholder") of Financial Services
Corporation of the Midwest, a Delaware corporation ("FSCM").
WHEREAS, FSCM, Mercantile and Ameribanc, Inc., a wholly owned
subsidiary of Mercantile ("Ameribanc"), have proposed to enter into an
Agreement and Plan of Merger (the "Agreement"), dated as of today, which
contemplates the acquisition by Mercantile of 100% of the capital stock of
FSCM (collectively, the "FSCM Stock") by means of a merger between FSCM and
Ameribanc; and
WHEREAS, Mercantile is willing to expend the substantial time, effort
and expense necessary to implement the Merger only if Stockholder enters into
this Voting Agreement; and
WHEREAS, the undersigned stockholder of FSCM believes that the Merger
is in his best interest and the best interest of FSCM.
NOW, THEREFORE, in consideration of the premises, Stockholder hereby
agrees as follows:
1. Voting Agreement. Stockholder shall vote all of the shares
----------------
of FSCM Stock he now owns of record or has voting control with respect to or
hereafter acquires, in favor of the Merger at the meeting of stockholders of
FSCM to be called for the purpose of approving the Merger (the "Meeting").
2. No Competing Transaction. Stockholder shall not vote any
------------------------
of his shares of FSCM Stock in favor of any other merger or sale of all or
substantially all the assets of FSCM to any person other than Mercantile or
its affiliates until the effective time of the Merger, termination of the
Agreement or abandonment of the Merger by the mutual agreement of FSCM and
Mercantile, whichever comes first.
3. Transfers Subject to Agreement. Stockholder shall not
------------------------------
transfer his shares of FSCM Stock unless the transferee, prior to such
transfer, executes a voting agreement with respect to the transferred shares
substantially to the effect of this Voting Agreement and satisfactory to
Mercantile.
4. No Ownership Interest. Nothing contained in this Voting
---------------------
Agreement shall be deemed to vest in Mercantile any direct or indirect
ownership or incidence of ownership of or with respect to any shares of FSCM
Stock. All rights, ownership and economic benefits of and relating to the
shares of FSCM Stock shall remain and belong to Stockholder, and Mercantile
shall have no authority to manage, direct, superintend, restrict, regulate,
govern or administer any of the policies or operations of FSCM or exercise
any power or authority to direct Stockholder in the voting of any of his
shares of FSCM Stock, except as otherwise expressly provided herein, or the
performance of his duties or responsibilities as a director of FSCM.
<PAGE> 2
5. Evaluation of Investment. Stockholder, by reason of his
------------------------
knowledge and experience in financial and business matters and in his
capacity as a director of a financial institution, believes himself capable
of evaluating the merits and risks of the potential investment in common
stock of Mercantile, $0.01 par value ("Mercantile Common Stock"),
contemplated by the Agreement.
6. Documents Delivered. Stockholder acknowledges having
-------------------
reviewed the Agreement and its attachments and that reports, proxy statements
and other information with respect to Mercantile filed with the Securities
and Exchange Commission (the "Commission") were, prior to his execution of
this Voting Agreement, available for inspection and copying at the Offices of
the Commission and that Mercantile delivered the following such documents to
FSCM:
(a) Mercantile's Annual Report on Form 10-K for the year
ended December 31, 1997; and
(b) Mercantile's Current Reports on Form 8-K dated
January 10, 1998 and January 30, 1998.
7. Amendment and Modification. This Voting Agreement may be
--------------------------
amended, modified or supplemented at any time by the written approval of such
amendment, modification or supplement by Stockholder and Mercantile.
8. Entire Agreement. This Voting Agreement evidences the
----------------
entire agreement among the parties hereto with respect to the matters
provided for herein, and there are no agreements, representations or
warranties with respect to the matters provided for herein other than those
set forth herein and in the Agreement.
9. Severability. The parties agree that if any provision of
------------
this Voting Agreement shall under any circumstances be deemed invalid or
inoperative, this Voting Agreement shall be construed with the invalid or
inoperative provisions deleted and the rights and obligations of the parties
shall be construed and enforced accordingly.
10. Counterparts. This Voting Agreement may be executed in two
------------
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
11. Governing Law. The validity, construction, enforcement and
-------------
effect of this Voting Agreement shall be governed by the internal laws of the
State of Missouri, without regard to its conflict of laws principles.
12. Headings. The headings for the paragraphs of this Voting
--------
Agreement are inserted for convenience only and shall not constitute a part
hereof or affect the meaning or interpretation of this Voting Agreement.
13. Termination. This Voting Agreement shall terminate upon
-----------
the consummation of the Merger or upon termination of the Agreement,
whichever comes first.
14. Successors. This Voting Agreement shall be binding upon
----------
and inure to the benefit of Mercantile and its successors, and Stockholder
and Stockholder's spouse and their respective executors, personal
representatives, administrators, heirs, legatees, guardians and other legal
- 2 -
<PAGE> 3
representatives. This Voting Agreement shall survive the death or incapacity
of Stockholder. This Agreement may be assigned by Mercantile only to an
affiliate of Mercantile.
MERCANTILE BANCORPORATION INC.
By:
----------------------------------------
John W. Rowe, Executive Vice President
Mercantile Bank National Association
Authorized Officer
STOCKHOLDER
-------------------------------------------
- 3 -
<PAGE> 1
[letterhead of Thompson Coburn]
June 11, 1998
Mercantile Bancorporation Inc.
P.O. Box 524
St. Louis, Missouri 63166-0524
Re: Registration Statement on Form S-4
----------------------------------
Ladies and Gentlemen:
We refer you to the Registration Statement on Form S-4 filed by
Mercantile Bancorporation Inc. (the "Company") on June 11, 1998 (the
"Registration Statement") with the Securities and Exchange Commission (the
"SEC") under the Securities Act of 1933, as amended, pertaining to the
proposed issuance by the Company of up to 2,077,077 shares of the Company's
common stock, $0.01 par value (the "Shares"), in connection with the
acquisition by merger of Financial Services Corporation of the Midwest
("FSCM"), pursuant to the Agreement and Plan of Merger, dated April 13, 1998
(the "Merger Agreement"), by and among the Company, FSCM and Ameribanc, Inc.,
all as provided in the Registration Statement. In rendering the opinions set
forth herein, we have examined such corporate records of the Company, such
laws and such other information as we have deemed relevant, including the
Company's Restated Articles of Incorporation and Bylaws, as amended and
currently in effect, the resolutions adopted by the Company's Board of
Directors relating to the merger transaction, certificates received from
state officials and statements we have received from officers and
representatives of the Company. In delivering this opinion, the undersigned
assumed the genuineness of all signatures; the authenticity of all documents
submitted to us as originals; the conformity to the originals of all
documents submitted to us as certified, photostatic or conformed copies; the
authenticity of the originals of all such latter documents; and the
correctness of statements submitted to us by officers and representatives of
the Company.
Based only on the foregoing, the undersigned is of the opinion that:
1. The Company has been duly incorporated and is validly existing
under the laws of the State of Missouri; and
2. The Shares to be sold by the Company, when issued as provided in
the Merger Agreement, will be validly issued, fully paid and non-assessable.
We consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to this firm in the section of
the Proxy Statement/Prospectus entitled "Legal Matters."
Very truly yours,
/s/ Thompson Coburn
<PAGE> 1
[letterhead of Thompson Coburn]
June 11, 1998
Board of Directors
Financial Services Corporation of the Midwest
224 18th Street, Suite 202
Rock Island, Illinois 61201
Ladies and Gentlemen:
You have requested our opinion with regard to certain federal income tax
consequences of the proposed merger (the "Merger") of Financial Services
Corporation of the Midwest ("FSCM") with and into Ameribanc, Inc. ("Ameribanc"),
a wholly owned subsidiary of Mercantile Bancorporation Inc. ("MBI").
In connection with the preparation of our opinion, we have examined and
have relied upon the following:
(i) The Agreement and Plan of Merger by and among MBI, Ameribanc, and
FSCM dated as of April 13, 1998, including the schedules and exhibits
thereto (the "Agreement");
(ii) MBI's Registration Statement on Form S-4, including the Proxy
Statement/Prospectus contained therein, filed with the Securities and
Exchange Commission on June 11, 1998, (the "Registration Statement");
(iii) The representations and undertaking of MBI substantially in the
form of Exhibit A hereto;
(iv) The representations and undertakings of FSCM substantially in the
form of Exhibit B hereto; and
(v) The Rights Agreement between MBI and Harris Trust and Savings Bank,
as rights agent, dated May 20, 1998.
<PAGE> 2
Financial Services Corporation
June 11, 1998
Page 2
Our opinion is based solely upon applicable law and the factual
information and undertakings contained in the above-mentioned documents. In
rendering our opinion, we have assumed the accuracy of all information and
the performance of all undertakings contained in each of such documents. We
also have assumed the authenticity of all original documents, the conformity
of all copies to the original documents, and the genuineness of all
signatures. We have not attempted to verify independently the accuracy of
any information in any such document, and we have assumed that such documents
accurately and completely set forth all material facts relevant to this
opinion. All of our assumptions were made with your consent. If any fact or
assumption described herein or below is incorrect, any or all of the federal
income tax consequences described herein may be inapplicable.
<PAGE> 3
Financial Services Corporation
June 11, 1998
Page 3
OPINION
Subject to the foregoing, to the conditions and limitations expressed
elsewhere herein, and assuming that the Merger is consummated in accordance
with the Agreement, we are of the opinion that for federal income tax
purposes:
A. The Merger will constitute a reorganization within the meaning of
sections 368(a)(1)(A) and 368(a)(2)(D) of the Internal Revenue Code of 1986,
as amended to the date hereof (the "Code").
B. Each stockholder of FSCM who exchanges, in the Merger, shares of
FSCM common stock, par value $0.50 per share ("FSCM Common Stock") solely for
shares of MBI common stock, par value $.01 per share ("MBI Common Stock"):
1. will recognize no gain or loss as a result of the exchange,
except with regard to cash received in lieu of a fractional share, as
discussed below (Code section 354(a)(1));
2. will have an aggregate basis for the shares of MBI Common
Stock received (including any fractional share of MBI Common Stock
deemed to be received, as described in paragraph 3, below) equal to the
aggregate adjusted tax basis of the shares of FSCM Common Stock
surrendered (Code section 358(a)(1)); and
3. will have a holding period for the shares of MBI Common
Stock received (including any fractional share of MBI Common Stock
deemed to be received, as described in paragraph 3, below) which
includes the holding period of the shares of FSCM Common Stock
surrendered, provided that the shares of FSCM Common Stock surrendered
are held as capital assets at the time of the Merger (Code section
1223(1)).
C. Each stockholder of FSCM who receives, in the Merger, cash in
lieu of a fractional share of MBI Common Stock will be treated as if the
fractional share had been received in the Merger and then redeemed by MBI.
Provided that the shares of FSCM Common Stock surrendered are held as capital
assets at the time of the Merger, the receipt of such cash will cause the
recipient to recognize capital gain or loss, equal to the difference between
the amount of cash received and the portion of such holder's basis in the
shares of MBI Common Stock allocable to the fractional share (Code sections
1001 and 1222; Rev. Rul. 66-365, 1966-2 C.B. 116; Rev. Proc. 77-41, 1977-2
C.B. 574).
<PAGE> 4
Financial Services Corporation
June 11, 1998
Page 4
* * * * * * * * * * * *
We express no opinion with regard to (1) the federal income tax
consequences of the Merger not addressed expressly by this opinion, including
without limitation, (i) the tax consequences, if any, to those stockholders
of FSCM who acquired shares of FSCM Common Stock pursuant to the exercise of
employee stock options or otherwise as compensation, and (ii) the tax
consequences to special classes of stockholders, if any, including without
limitation, foreign persons, insurance companies, tax-exempt entities,
retirement plans, and dealers in securities; and (2) federal, state, local,
or foreign taxes (or any other federal, state, local, or foreign laws) not
specifically referred to and discussed herein. Further, our opinion is based
upon the Code, Treasury Regulations proposed or promulgated thereunder, and
administrative interpretations and judicial precedents relating thereto, all
of which are subject to change at any time, possibly with retroactive effect,
and we assume no obligation to advise you of any subsequent change thereto.
If there is any change in the applicable law or regulations, or if there is
any new administrative or judicial interpretation of the applicable law or
regulations, any or all of the federal income tax consequences described
herein may become inapplicable.
The foregoing opinion reflects our legal judgment solely on the issues
presented and discussed herein. This opinion has no official status or
binding effect of any kind. Accordingly, we cannot assure you that the
Internal Revenue Service or any court of competent jurisdiction will agree
with this opinion.
We hereby consent to the filing of this letter as an exhibit to the
Registration Statement and to all references made to this letter and to this
firm in the Registration Statement.
Very truly yours,
/s/ Thompson Coburn
<PAGE> 1
Exhibit 23.1
------------
Independent Auditors' Consent
To the Board of Directors and Shareholders of
Mercantile Bancorporation Inc.:
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.
/s/ KPMG Peat Marwick LLP
St. Louis, Missouri
June 11, 1998
<PAGE> 1
Exhibit 23.2
------------
[Letterhead of McGladrey & Pullen, LLP]
To the Board of Directors
Financial Services Corporation of the Midwest
Rock Island, Illinois
We hereby consent to the use in this Registration Statement on Form S-4 of
our report, dated April 24, 1998, relating to the consolidated financial
statements of Financial Services Corporation of the Midwest and subsidiary.
We also consent to the reference to our Firm under the caption "Experts"
in the prospectus.
/s/ McGladrey & Pullen, LLP
Davenport, Iowa
June 11, 1998
<PAGE> 1
Exhibit 23.3
------------
[Letterhead of Howe Barnes Investments, Inc.]
135 South LaSalle Street
Chicago, Illinois 60603
312-655-3000
Consent of Howe Barnes Investments, Inc.
June 5, 1998
Financial Services Corporation of
the Midwest
224 18th Street, Suite 202
Rock Island, Illinois 61204
Members of the Board:
We hereby consent to the inclusion in this Registration Statement on
Form S-4 and related Proxy Statement/Prospectus with respect to the proposed
merger of Financial Services Corporation of the Midwest with and into
Ameribanc, Inc., a Missouri corporation and wholly owned subsidiary of
Mercantile Bancorporation Inc., of our opinion letter appearing as Annex A to
the Proxy Statement/Prospectus which is part of such Registration Statement,
and to the references of our firm name therein. In giving such consent, we
do not thereby admit that we come within the category of persons whose
consent is required under Section 7 of the Securities Act of 1933, as
amended, or the rules and regulations adopted by the Securities and Exchange
Commission thereunder nor do we admit that we are experts with respect to any
part of such Registration Statement within the meaning of the term "experts"
as used in the Securities Act of 1933, as amended, or the rules and
regulations of the Securities and Exchange Commission thereunder.
Very truly yours,
Howe Barnes Investments, Inc.
By: /s/ Daniel E. Coughlin
---------------------------------------------
Daniel E. Coughlin
Senior Vice President
