<PAGE> 1
As filed with the Securities and Exchange Commission on September 30, 1994
Registration No. 33-_____
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
NBD BANCORP, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 38-1984850
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
6711
(PRIMARY STANDARD INDUSTRIAL CLASSIFICATION CODE NUMBER)
611 WOODWARD AVENUE, DETROIT, MICHIGAN 48226 (313) 225-1000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING
AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
----------------
DANIEL T. LIS
SENIOR VICE PRESIDENT AND SECRETARY
NBD BANCORP, INC.
611 WOODWARD AVENUE
DETROIT, MICHIGAN 48226
(313) 225-1000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
COPIES OF COMMUNICATIONS TO:
JOHN BRUNO
MICHAEL D. VANHEMERT CYNTHIA M. KRUS
NBD BANCORP, INC. MULDOON, MURPHY & FAUCETTE
611 WOODWARD AVENUE 5101 WISCONSIN AVENUE, N.W.
DETROIT, MICHIGAN 48226 WASHINGTON, D.C. 20016
(313) 225-1000 (202) 362-0840
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE OF THE SECURITIES TO THE
PUBLIC:
As soon as practicable after the effective date of the Registration Statement.
If the securities being registered on this Form are to be offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. / /
<PAGE> 2
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===============================================================================================
Proposed Proposed
Title of each class of Amount maximum maximum Amount of
securities being being offering price aggregate registration
registered registered(1) per unit(1) offering price(1) fee
===============================================================================================
<S> <C> <C> <C> <C>
Common Stock ($1.00 par
value per share)........ 5,500,000 Shares $27.30 $145,149,060 $50,051
===============================================================================================
</TABLE>
(1) Estimated solely for purpose of calculating the registration fee
pursuant to Rule 457(f)(1) based upon the market value of securities to be
received or cancelled by the Registrant in the merger transaction. As of
September 28, 1994, there were 3,336,760 outstanding shares or options
exercisable for shares of the Common Stock of AmeriFed Financial Corp. and the
last sale price per share reported by Nasdaq National Market on September 28,
1994 was $43.50.
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> 3
NBD BANCORP, INC.
CROSS REFERENCE SHEET
Pursuant to Item 501 of Regulation S-K showing the location in the Proxy
Statement-Prospectus of the responses to the Items of Part I of Form S-4.
<TABLE>
<CAPTION>
Registration Statement Proxy Statement-
Item and Caption Prospectus Caption
------------------------------------------ -----------------------------------------------
<S> <C> <C>
1. Forepart of Registration Statement and
Outside Front Cover Page of
Prospectus.............................. Cover Page; Inside Front Cover Page
2. Inside Front and Outside Back Cover Pages
of Prospectus........................... Inside Front Cover Page; Table of Contents;
Available Information; Information Incorporated
by Reference
3. Risk Factors, Ratio of Earnings to Fixed
Charges and Other Information........... Summary
4. Terms of the Transaction.................. Summary; Proposed Merger; Description of NBD
Capital Stock; Comparative Rights of Holders
of Capital Stock of AmeriFed and NBD
5. Pro Forma Financial Information........... Not Applicable
6. Material Contracts with the Company Being
Acquired................................ Summary; Proposed Merger
7. Additional Information Required for
Reoffering by Persons and Parties Deemed
to Be Underwriters...................... Not Applicable
8. Interests of Named Experts and Counsel.... Experts; Legal Matters
9. Disclosure of Commission Position on
Indemnification for Securities Act
Liabilities............................. Not Applicable
10. Information With Respect to S-3
Registrants............................. Summary; Information Incorporated by
Reference
11. Incorporation of Certain Information by
Reference............................... Information Incorporated by Reference;
Description of NBD Capital Stock
12. Information With Respect to S-2 or S-3
Registrants............................. Not Applicable
13. Incorporation of Certain Information by
Reference............................... Not Applicable
14. Information With Respect to Registrants
Other than S-2 or S-3 Registrants....... Not Applicable
15. Information With Respect to S-3
Companies............................... Summary; Information Incorporated by
Reference
16. Information With Respect to S-2 or S-3
Companies............................... Not Applicable
17. Information With Respect to Companies
Other Than S-2 or S-3 Companies......... Not Applicable
18. Information if Proxies, Consents or
Authorizations Are To Be Solicited...... Information Incorporated by Reference; Summary;
Meeting Information; Proposed Merger
19. Information if Proxies, Consents or
Authorizations Are Not To Be Solicited
or in an Exchange Offer................. Not Applicable
</TABLE>
<PAGE> 4
[AmeriFed Letterhead]
120 North Scott Street
Joliet, Illinois 60431
_____________, 1994
Dear Stockholder:
You are cordially invited to attend a Special Meeting of Stockholders
(the "Special Meeting") of AmeriFed Financial Corp. ("AmeriFed") which will be
held on Friday, December 9, 1994 at 3:00 p.m., local time, at 150 West Banquet
Facilities, 1050 East I-55 Frontage Road North, Joliet, Illinois 60435.
At the Special Meeting, you will be asked to consider and vote upon a
proposal to approve an Agreement and Plan of Merger (the "Merger Agreement")
dated as of March 23, 1994 between NBD Bancorp, Inc. ("NBD"), NBD Illinois,
Inc. ("NBD Illinois") and AmeriFed pursuant to which AmeriFed will be merged
(the "Merger") with and into NBD Illinois, a wholly owned subsidiary of NBD.
Pursuant to a related Agreement of Merger, it is intended that immediately
following the Merger, AmeriFed Bank, FSB ("AmeriFed Bank"), a federally
chartered stock savings bank and a wholly owned subsidiary of AmeriFed, will
merge (the "Subsidiary Bank Merger") with and into NBD Bank, an
Illinois-chartered stock commercial bank and a wholly-owned subsidiary of NBD
Illinois. If the proposed Merger is consummated, each share of Common Stock of
AmeriFed will be converted into and be exchangeable for the number of shares of
Common Stock, $1.00 par value per share, of NBD ("NBD Common Stock") equal to a
fraction, the numerator of which shall be equal to $45.00, and the denominator
of which shall be equal to the average closing price per share of NBD Common
Stock as reported on the New York Stock Exchange Composite Tape for the five
trading days ending on the fifth trading day prior to the Effective Date of
Merger, as defined in the Merger Agreement.
The proposed Merger has been unanimously approved by the Boards of
Directors of both AmeriFed and NBD. The investment banking firm of The Chicago
Corporation has issued its written opinion to the AmeriFed Board of Directors
to the effect that the merger consideration is fair, from a financial point of
view, to AmeriFed's stockholders as of the date of the accompanying Proxy
Statement-Prospectus. The written opinion of The Chicago Corporation is
reproduced in full as Appendix B to the Proxy Statement-Prospectus, and
AmeriFed's stockholders are urged to read such opinion carefully in its
entirety.
Consummation of the Merger is subject to certain conditions including,
but not limited to, approvals by the requisite vote of the stockholders of
AmeriFed and certain regulatory approvals.
The enclosed Notice of Special Meeting and Proxy Statement-Prospectus
describe the terms of the Merger as well as other information relating to
AmeriFed and NBD. Please read these materials carefully.
THE BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS A VOTE FOR APPROVAL OF THE
PROPOSED MERGER AGREEMENT.
IN ORDER TO ASSURE THAT YOUR SHARES WILL BE REPRESENTED AND VOTED AT THE
MEETING, PLEASE COMPLETE, SIGN AND DATE THE ENCLOSED PROXY, AND MAIL IT IN THE
RETURN ENVELOPE PROVIDED. A FAILURE TO VOTE WILL BE THE EQUIVALENT OF A VOTE
AGAINST THE MERGER AGREEMENT.
Thank you for your attention to this important matter.
Sincerely,
Robert B. Breidert
President and Chief Executive Officer
<PAGE> 5
AMERIFED FINANCIAL CORP.
120 NORTH SCOTT STREET
JOLIET, ILLINOIS 60431
(815) 727-0370
NOTICE OF SPECIAL MEETING OF STOCKHOLDERS
TO BE HELD ON DECEMBER 9, 1994
NOTICE IS HEREBY GIVEN that a Special Meeting of Stockholders of
AmeriFed Financial Corp. ("AmeriFed") will be held on December 9, 1994, at 3:00
p.m., local time, at 150 West Banquet Facilities, 1050 East I-55 Frontage Road
North, Joliet, Illinois 60435.
The Special Meeting is for the purpose of considering and voting upon
the following matters:
1. To consider and vote upon a proposal to approve and adopt the
Agreement and Plan of Merger dated as of March 23, 1994 (the
"Merger Agreement") by and between NBD Bancorp, Inc. ("NBD"), NBD
Illinois, Inc. ("NBD Illinois"), and AmeriFed and the
transactions contemplated thereby, including the proposed merger
(the "Merger") of AmeriFed with and into NBD Illinois, a wholly-
owned subsidiary of NBD.
2. To transact such other business as may properly come before the
Special Meeting or any adjournments or postponements thereof
including, without limitation, a motion to adjourn or postpone
the Special Meeting to another time and/or place for the purpose
of soliciting additional proxies in order to approve the Merger
Agreement or otherwise.
Pursuant to the AmeriFed By-laws, the Board of Directors has fixed
_____________, 1994, as the record date for the determination of stockholders
entitled to notice of and to vote at the Special Meeting and at any
adjournments or postponements thereof. Only stockholders of record at the
close of business on that date will be entitled to vote at the Special Meeting
or any adjournments or postponements thereof. A list of AmeriFed stockholders
entitled to vote at the Special Meeting will be available for examination for
any purpose germane to the Special Meeting, during ordinary business hours, at
the principal executive offices of AmeriFed, located at 120 North Scott Street,
Joliet, Illinois 60431, for 10 days prior to the Special Meeting, and such list
will also be available at the Special Meeting. In the event there are not
sufficient votes for a quorum or to approve the Merger Agreement or otherwise
at the time of the Special Meeting, the Special Meeting may be adjourned in
order to permit further solicitation of proxies by AmeriFed.
The affirmative vote of the holders of a majority of the outstanding
shares of AmeriFed Common Stock entitled to vote is required for approval of
the Merger Agreement.
EACH STOCKHOLDER, WHETHER HE OR SHE PLANS TO ATTEND THE SPECIAL MEETING,
IS REQUESTED TO COMPLETE, SIGN, DATE AND RETURN THE ENCLOSED PROXY CARD IN THE
ENCLOSED POSTAGE-PAID ENVELOPE. ANY PROXY GIVEN BY THE STOCKHOLDER MAY BE
REVOKED AT ANY TIME BEFORE IT IS EXERCISED. A PROXY MAY BE REVOKED BY FILING
WITH THE SECRETARY OF AMERIFED A WRITTEN REVOCATION OR A DULY EXECUTED PROXY
BEARING A LATER DATE. ANY STOCKHOLDER PRESENT AT THE SPECIAL MEETING MAY
REVOKE HIS OR HER PROXY AND VOTE PERSONALLY ON EACH MATTER BROUGHT BEFORE THE
SPECIAL MEETING. HOWEVER, IF YOU ARE A STOCKHOLDER WHOSE SHARES ARE NOT
REGISTERED IN YOUR OWN NAME, YOU WILL NEED APPROPRIATE DOCUMENTATION FROM YOUR
RECORDHOLDER TO VOTE PERSONALLY AT THE SPECIAL MEETING.
By Order of the Board of Directors
Robert Biedron
Secretary
Joliet, Illinois
_______________, 1994
THE BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS
THAT YOU VOTE FOR THE PROPOSAL TO APPROVE THE
MERGER AGREEMENT
PLEASE COMPLETE, SIGN, DATE AND RETURN THE ENCLOSED PROXY CARD WITHOUT
DELAY IN THE ENCLOSED POSTAGE-PAID ENVELOPE.
<PAGE> 6
AMERIFED FINANCIAL CORP.
PROXY STATEMENT
FOR SPECIAL MEETING OF STOCKHOLDERS
TO BE HELD ON DECEMBER 9, 1994
NBD BANCORP, INC.
PROSPECTUS
UP TO 5,500,000 SHARES OF COMMON STOCK
(PAR VALUE $1.00 PER SHARE)
This Proxy Statement-Prospectus is being furnished to the Stockholders
of AmeriFed Financial Corp. ("AmeriFed") in connection with the solicitation of
proxies by the AmeriFed Board of Directors for use at the Special Meeting of
Stockholders (including any adjournments or postponements thereof (the "Special
Meeting"). The Special Meeting will be held on December 9, 1994 at 3:00 p.m.,
local time, at 105 West Banquet Facilities, 1050 East I-55 Frontage Road North,
Joliet, Illinois 60435.
The Special Meeting is being held for the purpose of considering and
voting upon a proposal to approve and adopt the Agreement and Plan of Merger
dated as of March 23, 1994 (the "Merger Agreement") by and between NBD Bancorp,
Inc. ("NBD"), NBD Illinois, Inc. ("NBD Illinois"), and AmeriFed and the
transactions contemplated thereby, including the proposed merger (the "Merger")
of AmeriFed with and into NBD Illinois, a wholly-owned subsidiary of NBD.
Pursuant to a related Agreement of Merger, it is intended that immediately
following the Merger, AmeriFed Bank, FSB ("AmeriFed Bank"), a federally
chartered stock savings bank and a wholly-owned subsidiary of AmeriFed, shall
merge (the "Subsidiary Bank Merger") with and into NBD Bank, an
Illinois-chartered stock commercial bank and a wholly-owned subsidiary of NBD
Illinois. If the Merger becomes effective, each share of common stock, $.01
par value per share, of AmeriFed ("AmeriFed Common Stock") will be converted
into and exchanged for the number of shares of common stock, $1.00 par value
per share, of NBD (the "NBD Common Stock") equal to a fraction, the numerator
of which shall be equal to $45.00, and the denominator of which shall be equal
to the average closing price per share of NBD Common Stock as reported on the
New York Stock Exchange Composite Tape for the five trading days ending on the
fifth trading day prior to the Effective Date of Merger, as defined in the
Merger Agreement. At the Special Meeting, the AmeriFed stockholders of record
as of the close of business on ________, 1994 will consider and vote upon a
proposal to approve the Merger Agreement.
This Proxy Statement-Prospectus also constitutes a prospectus of NBD in
respect of approximately 5,500,000 shares of NBD Common Stock to be issued to
stockholders of AmeriFed pursuant to the Merger in accordance with the terms of
the Merger Agreement. For a more complete description of the terms of the
Merger Agreement, which is attached as Appendix A and is incorporated herein by
reference, see "PROPOSED MERGER".
NBD Common Stock is listed on the New York Stock Exchange. The last
reported sale price of NBD Common Stock on the New York Stock Exchange
Composite Tape on ____________, 1994 was $______ per share.
This Proxy Statement - Prospectus and the accompanying form of proxy is
first being mailed to stockholders of AmeriFed on or about _________, 1994.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE. THE SHARES OF NBD COMMON STOCK OFFERED HEREBY
ARE NOT SAVINGS ACCOUNTS, DEPOSITS OR OTHER OBLIGATIONS OF A BANK OR SAVINGS
ASSOCIATION AND ARE NOT INSURED BY THE BANK INSURANCE FUND OR THE SAVINGS
ASSOCIATION INSURANCE FUND OF THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY
OTHER GOVERNMENTAL AGENCY.
THE DATE OF THIS PROXY STATEMENT-PROSPECTUS IS _________, 1994
<PAGE> 7
PROXY STATEMENT-PROSPECTUS
TABLE OF CONTENTS
Page
----
AVAILABLE INFORMATION..................................................
INFORMATION INCORPORATED BY REFERENCE..................................
SUMMARY................................................................
The Parties........................................................
The Meeting........................................................
The Proposed Merger................................................
Merger Consideration...............................................
Recommendation of the Board of Directors...........................
Opinion of Financial Advisors......................................
Stock Option Agreement.............................................
Effective Date of Merger...........................................
Conditions to the Merger and Termination...........................
Interests of Certain Persons in the Merger.........................
Appraisal Rights...................................................
Liquidation Account................................................
Certain Federal Income Tax Consequences of the Merger..............
Stock Exchange Listing.............................................
Resales of NBD Common Stock........................................
Accounting Treatment...............................................
Conduct of Business Prior to the Merger............................
Comparison of Stockholder Rights...................................
Selected Financial Data............................................
Market Value of Securities.........................................
Comparative Per Share Data (Unaudited).............................
MEETING INFORMATION. .................................................
Introduction.......................................................
Purpose............................................................
Voting Rights and Record Date......................................
Voting and Revocation of Proxies...................................
Solicitation of Proxies............................................
PROPOSED MERGER .......................................................
General............................................................
Background of the Merger...........................................
Reasons for the Merger.............................................
Effective Date of Merger...........................................
Opinion of Financial Advisor to AmeriFed...........................
Consideration for Shares...........................................
Source of NBD Common Stock.........................................
Conditions to the Merger...........................................
Regulatory Matters.................................................
Termination, Amendment and Waiver..................................
Business of AmeriFed Pending the Merger............................
Interests of Certain Persons in theMerger..........................
Resales of NBD Common Stock........................................
Stock Option Agreement.............................................
Appraisal Rights...................................................
Certain Federal Income Tax Consequences of the Merger..............
Stock Exchange Listing.............................................
Accounting Treatment...............................................
DESCRIPTION OF NBD CAPITAL STOCK.......................................
COMPARATIVE RIGHTS OF HOLDERS OF CAPITAL STOCK OF AMERIFED AND NBD.....
RELATIONSHIP WITH INDEPENDENT AUDITORS.................................
EXPERTS................................................................
LEGAL MATTERS..........................................................
OTHER MATTERS..........................................................
APPENDIX A -- MERGER AGREEMENT......................................... A-1
APPENDIX B -- OPINION OF THE CHICAGO CORPORATION....................... B-1
2
<PAGE> 8
NO PERSON IS AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATION
NOT CONTAINED IN THIS PROXY STATEMENT-PROSPECTUS, OR INCORPORATED BY REFERENCE
HEREIN, IN CONNECTION WITH THE SOLICITATION OF PROXIES OR THE OFFERING OF
SECURITIES MADE HEREBY, AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATION SHOULD NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY NBD OR
AMERIFED. THIS PROXY STATEMENT-PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO
SELL, OR A SOLICITATION OF AN OFFER TO PURCHASE, ANY SECURITIES OFFERED BY THIS
PROXY STATEMENT-PROSPECTUS, OR THE SOLICITATION OF A PROXY, IN ANY JURISDICTION
TO OR FROM ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER, OR
SOLICITATION OF AN OFFER, OR PROXY SOLICITATION IN SUCH JURISDICTION. NEITHER
THE DELIVERY OF THIS PROXY STATEMENT-PROSPECTUS NOR ANY DISTRIBUTION OF THE
SECURITIES OFFERED PURSUANT TO THIS PROXY STATEMENT-PROSPECTUS SHALL, UNDER ANY
CIRCUMSTANCES, CREATE AN IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE
AFFAIRS OF AMERIFED, NBD, OR NBD ILLINOIS OR THE INFORMATION HEREIN OR THE
DOCUMENTS OR REPORTS INCORPORATED BY REFERENCE SINCE THE DATE OF THIS PROXY
STATEMENT-PROSPECTUS.
AVAILABLE INFORMATION
NBD has filed a Registration Statement on Form S-4 (the "Registration
Statement") under the Securities Act of 1933, as amended (the "Securities
Act"), with the Securities and Exchange Commission (the "Commission") covering
the shares of NBD Common Stock to be issued in connection with the Merger. As
permitted by the rules and regulations of the Commission, this Proxy
Statement-Prospectus omits certain information, exhibits and undertakings
contained in the Registration Statement. For further information pertaining to
the securities offered hereby, reference is made to the Registration Statement,
including the exhibits filed as a part thereof. Such additional information
may be inspected and copies as set forth below.
The descriptions in this Proxy Statement-Prospectus of the terms of the
Merger Agreement as well as the Agreement and Plan of Reorganization and the
Stock Option Agreement, each dated as of March 23, 1994 (respectively, the
"Reorganization Agreement" and the "Option Agreement"), are summaries only and
are qualified in their entirety by reference to the Merger Agreement, which is
attached as Appendix A to this Proxy Statement-Prospectus, as well as the
Reorganization Agreement and the Option Agreement which are attached as
exhibits to the Registration Statement of which this Proxy Statement-Prospectus
is a part and are incorporated herein by reference. A COPY OF THE
REORGANIZATION AGREEMENT AND OPTION AGREEMENT WILL BE PROVIDED WITHOUT CHARGE
TO ANY PERSON TO WHOM THIS PROXY STATEMENT-PROSPECTUS IS DELIVERED UPON WRITTEN
REQUEST TO ROBERT BIEDRON, EXECUTIVE VICE PRESIDENT AND SECRETARY OF AMERIFED,
OR DANIEL T. LIS, SENIOR VICE PRESIDENT AND SECRETARY OF NBD, AT THEIR
RESPECTIVE ADDRESSES INDICATED BELOW.
NBD and AmeriFed are subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and, in
accordance therewith, file reports, proxy statements and other information with
the Commission. Reports, proxy statements and other information filed by NBD
and AmeriFed can be inspected and copied at the public reference facilities
maintained by the Commission at Room 1024, 450 Fifth Street, N.W., Washington,
D.C. 20549; and at its Regional Offices located at Citicorp Center, 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661; and Seven World Trade
Center, 13th Floor, New York, New York 10048. Copies of such material can be
obtained from the Public Reference Section of the Commission, 450 Fifth Street,
N.W., Washington, D.C. 20549, at prescribed rates. In addition, NBD Common
Stock is listed on the New York Stock Exchange ("NYSE") and such material as to
NBD can be inspected at the offices of the NYSE, 20 Broad Street, New York, New
York 10005, and the AmeriFed Common Stock is listed on the Nasdaq National
Market and such material as to AmeriFed can be inspected at offices of the
National Association of Securities Dealers, Inc., 1735 K Street, N.W.,
Washington, D.C. 20006.
THIS PROXY STATEMENT-PROSPECTUS INCORPORATES DOCUMENTS BY REFERENCE
WHICH ARE NOT PRESENTED HEREIN OR DELIVERED HEREWITH. THESE DOCUMENTS ARE
AVAILABLE UPON REQUEST AND WITHOUT CHARGE WITH RESPECT TO AMERIFED FROM ROBERT
BIEDRON, EXECUTIVE VICE PRESIDENT AND SECRETARY, AMERIFED FINANCIAL CORP., 120
NORTH SCOTT STREET, JOLIET, ILLINOIS 60431 (TELEPHONE NUMBER 815-727-0370) AND
WITH RESPECT TO NBD FROM DANIEL T. LIS, SENIOR VICE PRESIDENT AND SECRETARY,
NBD BANCORP, INC., 611 WOODWARD AVENUE, DETROIT, MICHIGAN 48226 (TELEPHONE
NUMBER 313-225-1000). IN ORDER TO ENSURE TIMELY DELIVERY OF DOCUMENTS A PERSON
DESIRES
3
<PAGE> 9
TO EXAMINE PRIOR TO THE SPECIAL MEETING, ANY REQUEST FOR DOCUMENTS SHOULD BE
MADE BY ___________, 1994.
INFORMATION INCORPORATED BY REFERENCE
NBD (Commission File No. 1-7127) incorporates herein by reference: (a)
NBD's Annual Report on Form 10-K for the year ended December 31, 1993; (b)
NBD's Quarterly Reports on Form 10-Q for the quarters ended March 31, 1994 and
June 30, 1994; and (c) the description of the NBD Common Stock contained in
NBD's registration statement filed pursuant to Section 12 of the Exchange Act,
and any amendment or report filed for the purpose of updating such description.
AmeriFed (Commission File No. 0-19329) incorporates herein by reference:
(a) AmeriFed's Annual Report on Form 10-K for the year ended September 30,
1993; (b) AmeriFed's Quarterly Reports on Form 10-Q for the quarters ended
December 31, 1993, March 31, 1994 and June 30, 1994; (c) AmeriFed's Form 11-K
for the year ended December 31, 1993; (d) the description of AmeriFed's Common
Stock set forth in AmeriFed's Registration Statement filed on Form 8-A dated
May 29, 1991, and any amendments or updates thereto; (e) AmeriFed's Report on
Form 8-K dated April 5, 1994; and (f) the portions of AmeriFed's Proxy
Statement for the Annual Meeting of Stockholders held on January 19, 1994 that
have been incorporated by reference into the 1993 AmeriFed Form 10-K.
All documents subsequently filed by NBD and AmeriFed pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, after the date of this
Proxy Statement-Prospectus and prior to the date of the Special Meeting, shall
be deemed to be incorporated by reference into this Proxy Statement-Prospectus
and to be a part hereof from the dates of filing of such documents. Any
statement contained in a document incorporated or deemed to be incorporated by
reference in this Proxy Statement-Prospectus shall be deemed to be modified or
superseded for purposes of this Proxy Statement-Prospectus to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any statement so modified or superseded shall not
be deemed, except as so modified or superseded, to constitute a part of this
Proxy Statement-Prospectus.
4
<PAGE> 10
SUMMARY
This summary is necessarily general and abbreviated and has been
prepared to assist AmeriFed stockholders in their review of this Proxy
Statement-Prospectus. This summary is not intended to be a complete explanation
of the matters covered in this Proxy Statement-Prospectus and is qualified in
all respects by reference to the more detailed information contained elsewhere
in this Proxy Statement-Prospectus, the Appendices hereto and in the documents
incorporated by reference in this Proxy Statement-Prospectus, which the
stockholders are urged to read carefully.
The descriptions in this Proxy Statement-Prospectus of the terms of the
Merger Agreement, Reorganization Agreement and the Option Agreement
(collectively, the "Agreements") are summaries only and are qualified in their
entirety by reference to the Merger Agreement, which is attached as Appendix A
to this Proxy Statement-Prospectus, as well as the Reorganization Agreement and
the Option Agreement, which are attached as exhibits to the Registration
Statement of which this Proxy Statement-Prospectus is a part and are
incorporated herein by reference. A COPY OF THE REORGANIZATION AGREEMENT AND
OPTION AGREEMENT WILL BE PROVIDED WITHOUT CHARGE TO ANY PERSON TO WHOM THIS
PROXY STATEMENT-PROSPECTUS IS DELIVERED UPON WRITTEN REQUEST TO ROBERT
BIEDRON, EXECUTIVE VICE PRESIDENT AND SECRETARY OF AMERIFED, OR DANIEL T. LIS,
SENIOR VICE PRESIDENT AND SECRETARY OF NBD, AT THEIR RESPECTIVE ADDRESSES.
THE PARTIES
NBD is a registered bank holding company which was incorporated under
the laws of Delaware in 1972. At June 30, 1994, NBD and its subsidiaries had
total assets of $45.2 billion, total deposits of $30.9 billion and
stockholders' equity of $3.3 billion. Based on rankings of total assets at June
30, 1994, NBD was the 18th largest bank holding company in the United States.
Through its banking subsidiaries, NBD provides domestic retail banking,
worldwide commercial banking, trust and investment management services. Through
its non-banking subsidiaries, NBD engages in mortgage, finance, insurance,
trust, leasing, discount brokerage and data processing activities. The
principal subsidiary of NBD is NBD Bank, N.A., formerly named National Bank of
Detroit, which was the 15th largest commercial bank in the United States based
on total assets at June 30, 1994. NBD Bank, N.A. has applied to become a state
chartered bank under Michigan law and is awaiting approval. NBD has expanded
significantly in recent years through selective acquisitions, and it regularly
explores opportunities for additional acquisitions of financial institutions
and related businesses. The principal executive offices of NBD are located at
611 Woodward Avenue, Detroit, Michigan 48226 and its telephone number is
313-225-1000.
NBD Illinois was incorporated under the laws of Delaware in 1985 as a
wholly-owned subsidiary of NBD. Between 1987 and 1991 NBD acquired four bank
holding companies in Illinois and merged them into NBD Illinois, and in
December 1992 merged 17 of the Illinois bank subsidiaries of those acquired
companies into NBD Bank, an Illinois-chartered commercial bank and wholly-owned
subsidiary of NBD Illinois. At June 30, 1994, NBD Illinois and its
subsidiaries had total assets of $5.3 billion, total deposits of $3.9 billion
and stockholders' equity of $445 million. They provide retail, commercial and
trust banking and investment management services through 42 offices located in
the Chicago metropolitan area. The principal executive offices of NBD Illinois
and NBD Bank are located at 55 East Euclid, Mt. Prospect, Illinois 60056 and
its telephone number is 708-392-1600.
AmeriFed, a registered savings and loan holding company, was
incorporated under the laws of Delaware in 1991 for the purpose of acquiring
all of the capital of AmeriFed Bank, FSB ("AmeriFed Bank"), formerly named
AmeriFed Federal Savings Bank, pursuant to a conversion of AmeriFed Bank from a
Federally chartered mutual savings bank to a Federally chartered stock savings
bank. AmeriFed Bank was organized in 1934 as the Joliet Federal Savings and
Loan Association, and in 1986 converted to a federal mutual savings bank and
changed its name to AmeriFed Federal Savings Bank. On June 1, 1993, AmeriFed
Bank adopted its current name. AmeriFed Bank's principal business has been and
continues to be attracting retail deposits from the general public and
investing those deposits, together with funds generated from operations and
borrowings, primarily in one- to four-family residential mortgage loans and, to
a lesser extent, in multi-family residential mortgage loans, construction and
land loans,
5
<PAGE> 11
commercial real estate loans, home equity and other consumer loans, commercial
business loans and mortgage-backed securities, U.S. Treasury and Government
agency securities and other marketable securities. AmeriFed Bank also has a
wholly-owned subsidiary, AmeriFed Financial Services, Inc., which offers
insurance to the Bank's customers. At June 30, 1994, AmeriFed and its
subsidiaries had total assets of $896.7 million, total deposits of $781.5
million and stockholder's equity of $91.9 million. Based on the most recent
information available, AmeriFed was the largest financial institution
headquartered in Will County, a rapidly developing rural/suburban area in the
southwest quadrant of the Chicago metropolitan area. The principal executive
offices of AmeriFed and AmeriFed Bank are located at 120 North Scott Street,
Joliet, Illinois 60431 and its telephone number is 815-727-0370.
THE MEETING
The Special Meeting will be held on Friday, December 9, 1994 at 3:00
p.m., local time, at 105 West Banquet Facilities, 1050 East I-55 Frontage Road
North, Joliet, Illinois 60435. At the Special Meeting, the stockholders of
AmeriFed will be asked to approve the Merger Agreement. See "MEETING
INFORMATION -- Purposes." Only holders of record of AmeriFed Common Stock at
the close of business on ________, 1994 (the "Record Date") will be entitled to
vote at the Special Meeting. On the Record Date, there were outstanding and
entitled to vote _______ shares of AmeriFed Common Stock. Each share of
AmeriFed Common Stock is entitled to one vote, except as described under
"MEETING INFORMATION -- Voting Rights and Record Date". On the Record Date,
the directors and executive officers of AmeriFed and their affiliates
beneficially owned approximately __________ shares, or _____% of the
outstanding shares of AmeriFed Common Stock. An unrelated corporate trustee of
the AmeriFed Federal Savings Bank Employee Stock Ownership Plan and Trust
("ESOP") beneficially owned _____ shares of AmeriFed Common Stock on the Record
Date (constituting approximately _____% of the outstanding shares). Pursuant
to the terms of the ESOP, shares held by the ESOP that are allocated to the
accounts of the ESOP participants shall be voted by the ESOP trustee as
directed by such participants so long as such vote is in accordance with the
provisions of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"). Shares held by the ESOP that are currently unallocated shall be
voted by the ESOP trustee proportionate to the directions given by ESOP
participants with respect to allocated shares. The affirmative vote of the
holders of a majority of the outstanding shares of AmeriFed Common Stock \
entitled to vote is required to approve the Merger Agreement. See
"MEETING INFORMATION -- Voting Rights and Record Date."
THE PROPOSED MERGER
On March 23, 1994, AmeriFed, NBD Illinois and NBD entered into the
Agreements, which provide for the merger of AmeriFed into NBD Illinois. The
Merger Agreement is attached to this Proxy Statement-Prospectus as Appendix A.
A COPY OF THE REORGANIZATION AGREEMENT AND OPTION AGREEMENT WILL BE PROVIDED
WITHOUT CHARGE TO ANY PERSON TO WHOM THIS PROXY STATEMENT-PROSPECTUS IS
DELIVERED UPON WRITTEN REQUEST TO ROBERT BIEDRON, EXECUTIVE VICE PRESIDENT AND
SECRETARY OF AMERIFED, OR DANIEL T. LIS, SENIOR VICE PRESIDENT AND SECRETARY OF
NBD, AT THEIR RESPECTIVE ADDRESSES INDICATED UNDER "AVAILABLE INFORMATION". The
Merger Agreement sets forth the terms upon which the Merger, if consummated,
will be effected. The Reorganization Agreement sets forth various
representations, warranties and covenants of the parties relating to the
consummation of the Merger as well as the conditions which must be satisfied
for the Merger to be completed. See "PROPOSED MERGER -- Conditions to the
Merger." Although the Merger Agreement and the Reorganization Agreement relate
to the same transaction, separate agreements are being used because the former
relates primarily to the Merger itself, whereas the latter establishes the
respective obligations of the parties with respect to the Merger. The terms of
the Option Agreement are described under "Stock Option Agreement."
On August 22, 1994, NBD Bank and AmeriFed Bank entered into an Agreement
of Merger pursuant to which AmeriFed Bank would be merged (the "Subsidiary Bank
Merger") into NBD Bank immediately following the Merger of AmeriFed into NBD
Illinois. As a result of the Subsidiary Bank Merger, the AmeriFed Bank assets
(including branch facilities and customer loans), liabilities (including
deposits) and employees will immediately constitute a new Southwest Regional
Banking Center of NBD Bank at the date of the parent company Merger.
6
<PAGE> 12
MERGER CONSIDERATION
Upon consummation of the Merger, each outstanding share of AmeriFed
Common Stock (except for shares owned by NBD, NBD Illinois or AmeriFed) will be
automatically converted into a number of whole shares of NBD Common Stock equal
to a fraction, the numerator of which shall be equal to $45.00, and the
denominator of which shall be equal to the average closing price per share of
NBD Common Stock as reported on the NYSE Composite Tape for the five trading
days ending on the fifth trading day prior to the Effective Date of Merger, as
defined below. Cash will be paid in lieu of the fractional shares of NBD
Common Stock. See "PROPOSED MERGER -- Consideration for Shares."
RECOMMENDATION OF THE BOARD OF DIRECTORS
AmeriFed, through its financial advisor, The Chicago Corporation
solicited and received indications of interest concerning the acquisition of
AmeriFed from NBD and other financial institution holding companies. After
consulting with The Chicago Corporation and legal counsel, AmeriFed negotiated
the proposed Agreements with NBD. Following an in-depth analysis, review and
discussion of the Agreements by and among The Chicago Corporation, AmeriFed's
legal counsel and its Board of Directors, including The Chicago Corporation's
advice that the Agreements were fair, from a financial point of view, to
holders of AmeriFed Common Stock, the Board of Directors of AmeriFed
unanimously voted to accept the Agreements proposed by NBD. The AmeriFed Board
believes that the Merger will provide AmeriFed's stockholders with increased
value and liquidity for their stock and will provide its customers with
expanded services and products. The AmeriFed Board recommends that AmeriFed's
stockholders vote FOR approval of the Merger Agreement.
For additional details regarding the recommendation of the AmeriFed
Board, see "PROPOSED MERGER -- Background of the Merger" and "-- Reasons for
the Merger."
OPINION OF FINANCIAL ADVISOR
The Chicago Corporation, AmeriFed's financial advisor, has rendered its
written opinion to the AmeriFed Board that the consideration to be received by
AmeriFed stockholders pursuant to the Merger is fair, from a financial point of
view, to AmeriFed's stockholders.
For information on the procedures followed, assumptions made, matters
considered in and qualifications of the review undertaken, and other matters in
connection with rendering the opinion, by The Chicago Corporation, see
"PROPOSED MERGER -- Opinion of Financial Advisor" and the opinion of The
Chicago Corporation attached as Appendix B to this Proxy Statement-Prospectus
which should be read in its entirety by AmeriFed stockholders.
STOCK OPTION AGREEMENT
At the time of execution of the Agreements, AmeriFed and NBD entered
into a Stock Option Agreement dated as of March 23, 1994 (the "Option
Agreement") pursuant to which AmeriFed granted an option to NBD to purchase up
to an aggregate of 610,578 shares of AmeriFed Common Stock, or approximately
19.9% of the AmeriFed Common Stock currently outstanding, at a price per share
of $32.75 (the "Option"), exercisable only upon the happening of certain
events. In addition, the Option is exercisable only if NBD has fully complied
with the terms of the Agreements at the time of exercise. Depending on the
number of shares purchased, exercise of the Option may be subject to the prior
approval of certain government regulatory authorities. The Option Agreement is
intended to make it more difficult for another party to acquire AmeriFed,
thereby increasing the likelihood that the Merger will occur. See "PROPOSED
MERGER -- Stock Option Agreement."
EFFECTIVE DATE OF MERGER
The Merger will be consummated at the close of business on the date
specified in a Certificate of Merger filed in accordance with the Delaware
General Corporation Law. The date on which the Merger will be consummated is
referred to herein as the "Effective Date of Merger". It is anticipated that
if the stockholders of AmeriFed approve the Merger Agreement at the Special
Meeting
7
<PAGE> 13
and the approvals of all requisite government regulatory authorities are
obtained, the Effective Date of Merger will be early in the first quarter of
the calendar year 1995, provided that the Merger Agreements are not terminated
prior to such date. See "PROPOSED MERGER -- Effective Date of Merger" and "--
Conditions to the Merger."
CONDITIONS TO THE MERGER AND TERMINATION
Consummation of the Merger is subject to the satisfaction or waiver of
various conditions, including among other things, the approval of the Merger
Agreement by the stockholders of AmeriFed, approval of the Merger by all
requisite government regulatory authorities, the receipt by AmeriFed of an
opinion of Muldoon, Murphy & Faucette that the Merger will constitute a
reorganization for Federal income tax purposes, and satisfaction of various
other conditions specified in the Reorganization Agreement. Applications for
prior approval of the Merger and/or the Subsidiary Bank Merger have been
submitted to the Office of Thrift Supervision, the Federal Deposit Insurance
Corporation, the Federal Reserve Bank of Chicago, and the Illinois Commissioner
of Banks and Trust Companies. There can be no assurance that these regulatory
authorities will approve or take other required action with respect to the
Merger or as to the date of such approvals or actions. See "PROPOSED MERGER --
Conditions to the Merger" and " -- Regulatory Matters".
The Merger may be terminated notwithstanding stockholder approval if
certain specified events occur. For instance, either AmeriFed or NBD may
terminate the Agreements if the Merger has not been consummated by March 31,
1995 or if any requisite government regulatory authority shall refuse to
approve the Merger or shall condition an approval in a manner not reasonably
satisfactory to NBD. See "PROPOSED MERGER -- Termination, Amendment and
Waiver."
INTERESTS OF CERTAIN PERSONS IN THE MERGER
Certain members of AmeriFed's management and the AmeriFed Board may be
deemed to have certain interests in the Merger that are in addition to their
interests as stockholders generally. AmeriFed and AmeriFed Bank maintain
employment agreements and/or special termination agreements with its executive
officers which provide for certain payments and benefits in the event such
officers are terminated in the context of a change in control such as the
Merger. In addition, the Merger will result in the acceleration of vesting of
certain option and stock awards under AmeriFed's employee and director stock
award plans. Finally, the Merger Agreement provides that NBD will indemnify
the AmeriFed Board and management against certain liabilities for a period of
two (2) years following the Merger. See "PROPOSED MERGER -- Interests of
Certain Persons in the Merger."
APPRAISAL RIGHTS
Under Delaware law, the AmeriFed stockholders will not be entitled to
appraisal or dissenters' rights with respect to the Merger. See "PROPOSED
MERGER -- Appraisal Rights."
LIQUIDATION ACCOUNT
In connection with its conversion from the mutual to the stock of
ownership, AmeriFed Bank was required to establish a "liquidation account" for
the benefit of savings account holders at the time of conversion. The
liquidation account grants such savings account holders who have continued to
maintain their savings accounts at AmeriFed Bank the right to a priority
distribution from the liquidation account before any distribution is made with
respect to AmeriFed Bank common stock in the event of a complete liquidation of
AmeriFed Bank. Neither the Merger nor the Subsidiary Bank Merger constitutes a
complete liquidation and will not trigger a distribution from the liquidation
account. Upon consummation of the Merger and the Subsidiary Bank Merger, the
liquidation account will be maintained by NBD Bank.
CERTAIN FEDERAL INCOME TAX CONSEQUENCES OF THE MERGER
AmeriFed shall seek to obtain an opinion from Muldoon, Murphy &
Faucette, counsel to AmeriFed, substantially to the effect that the Merger will
be treated as a reorganization within the meaning of Section 368(a) of the
Internal Revenue
8
<PAGE> 14
Code of 1986, as amended (the "Code") and, accordingly, for federal income tax
purposes, no gain or loss will be recognized by AmeriFed or AmeriFed Bank as a
result of the Merger except, with respect to the Subsidiary Bank Merger, to the
extent AmeriFed or AmeriFed Bank is required to recognize taxable income due to
the recapture of AmeriFed Bank's bad debt reserves. AmeriFed will seek an
opinion substantially to the effect that, for federal income tax purposes: (i)
assuming that the Merger transaction constitutes a merger under the applicable
state or federal law, the merger of AmeriFed with and into NBD Illinois will
constitute a reorganization within the meaning of Section 368(a)(1)(A) and
Section 368(a)(2)(D) of the Code, and AmeriFed, NBD Illinois and NBD will each
be a "party to a reorganization" within the meaning of Section 368(b) of the
Code; (ii) the basis of the assets of AmeriFed to be received by NBD Illinois
will be the same as the basis of those assets in the hands of AmeriFed
immediately prior to the Merger; (iii) the holding period of the assets of
AmeriFed to be received by NBD Illinois will include the holding period of
those assets in the hands of AmeriFed immediately prior to the Merger; (iv) no
gain or loss will be recognized by NBD Illinois and NBD upon receipt of the
assets of AmeriFed by NBD Illinois in exchange for the consideration provided
for in the Merger Agreement and the assumption by NBD Illinois of the
liabilities of AmeriFed; (v) NBD Illinois will succeed to and take into account
the items of AmeriFed described in Section 381(c) of the Code and NBD Illinois
will be the "acquiring corporation" within the meaning of Section
1.381(a)-1(b)(2) of the regulations promulgated by the Department of Treasury
("Treasury Regulations"). These items will be taken into account by NBD
Illinois subject to the conditions and limitations specified in Sections 381,
382 and 383 of the Code and the Treasury Regulations thereunder; (vi) no gain
or loss will be recognized by AmeriFed upon the transfer of its assets to NBD
Illinois in exchange for the consideration provided for in the Merger Agreement
and the assumption by NBD Illinois of the liabilities of AmeriFed; (vii) no
gain or loss will be recognized by the shareholders of AmeriFed who receive
shares of NBD Common Stock in exchange for all of their shares of AmeriFed
Common Stock, except to the extent of any cash received in lieu of a fractional
share of NBD Common Stock; (viii) the basis of NBD Common Stock to be received
by shareholders of AmeriFed will, in each instance, be the same as the basis of
the shares of AmeriFed Common Stock surrendered in exchange therefor; (ix) the
holding period of the NBD Common Stock received by shareholders of AmeriFed
will, in each instance, include the holding period of the shares of AmeriFed
Common Stock surrendered in exchange therefor, provided that AmeriFed Common
Stock was, in each instance, held as a capital asset in the hands of the
shareholder of AmeriFed on the Effective Date of Merger; and (x) the payments
of cash in lieu of fractional share interests of NBD Common Stock will be
treated as having been received as distributions in full payment in exchange
for the stock redeemed as provided in Section 302(a) of the Code.
AmeriFed stockholders are urged to consult their tax advisors concerning
the specific tax consequences to them of the Merger, including the
applicability and effect of various state, local and foreign tax laws. See
"PROPOSED MERGER -- Certain Federal Income Tax Consequences of the Merger" and
"-- Conditions to the Merger."
STOCK EXCHANGE LISTING
The NBD Common Stock is listed on the NYSE. NBD has agreed to cause the
shares of NBD Common Stock to be issued in the Merger to be approved for
listing on the NYSE. The obligation of each of NBD and AmeriFed to consummate
the Merger is subject to approval for listing by the NYSE of such shares. See
"PROPOSED MERGER -- Conditions to the Merger."
RESALES OF NBD COMMON STOCK
The NBD Common Stock will be freely transferrable by the holders of such
shares, except for those shares held by those holders who may be deemed to be
"affiliates" (generally including directors, certain executive officers and ten
percent or more shareholders) of AmeriFed or NBD under applicable federal
securities laws. See "PROPOSED MERGER -- Resale of NBD Common Stock."
ACCOUNTING TREATMENT
The Merger is expected to qualify as a "purchase" for accounting and
financial reporting purposes. See "PROPOSED MERGER -- Accounting Treatment."
9
<PAGE> 15
CONDUCT OF BUSINESS PRIOR TO THE MERGER
The Reorganization Agreement contains certain covenants, to which
AmeriFed has agreed, regarding the business of AmeriFed prior to the Merger.
The covenants remain in effect until the Effective Date of Merger or until the
Agreements are terminated, and include, among other things, an agreement that
AmeriFed and each of its subsidiaries will conduct its affairs in the ordinary
course of business consistent with past and current practice, use its best
efforts to maintain and preserve its business organization, employees and
advantageous business relationships and to retain the services of its key
officers and employees. See "PROPOSED MERGER -- Business of AmeriFed Pending
the Merger."
COMPARISON OF STOCKHOLDER RIGHTS
At the Effective Date of Merger, AmeriFed stockholders automatically
will become stockholders of NBD and their rights as stockholders of NBD will be
governed by Delaware General Corporation Law and by NBD's Certificate of
Incorporation and Bylaws. The rights of stockholders of NBD differ from those
of AmeriFed with respect to certain important matters, including, among others,
the absence of a 10% voting limit and supermajority approval provisions in the
NBD Certificate. See "PROPOSED MERGER -- Comparative Rights of Holders of
Capital Stock of AmeriFed and NBD."
SELECTED FINANCIAL DATA
The following tables set forth certain historical consolidated financial
data for NBD for the five years ended December 31, 1993 and the six months
ended June 30, 1994 and 1993, and for AmeriFed for the five years ended
September 30, 1993 and the nine months ended June 30, 1994 and 1993. This
information is based on, and should be read in conjunction with, the
consolidated financial statements of NBD and AmeriFed, including applicable
notes, as incorporated by reference herein. See "Incorporation of Certain
Documents by Reference". The financial data for the six months ended June 30,
1994 and 1993 for NBD, and for the nine months ended June 30, 1994 and 1993 for
AmeriFed, reflect, in the opinion of the management of NBD and AmeriFed,
respectively, all adjustments necessary for a fair presentation of such data.
Results for these interim periods are not necessarily indicative of the results
which may be expected for any other interim period or for the entire year.
10
<PAGE> 16
NBD BANCORP, INC.
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
SIX MONTHS
ENDED JUNE 30 YEAR ENDED DECEMBER 31
------------------------ ----------- ---------------------------------------------------
1994 1993 1993 1992 1991 1990 1989
----------- ----------- ----------- ------------ ----------- ----------- -----------
<S> <C> <C> <C> <C> <C> <C> <C>
SUMMARY OF OPERATING RESULTS:
Interest Income....................... $ 1,338,557 $ 1,325,732 $ 2,622,820 $ 2,843,797 $ 3,138,893 $ 3,320,312 $ 3,188,254
Interest Expense...................... (550,909) (545,498) (1,064,713) (1,334,026) (1,800,759) (2,077,923) (2,011,362)
----------- ----------- ----------- ------------ ----------- ----------- -----------
Net Interest Income................... 787,648 780,234 1,558,107 1,509,771 1,338,134 1,242,389 1,176,892
Provision for Possible Credit Losses.. (24,039) (74,980) (119,674) (228,480) (166,212) (151,086) (113,351)
Non-Interest Income................... 272,698 288,163 585,383 529,208 473,027 412,339 391,444
Non-Interest Expenses................. (654,628) (647,160) (1,321,840) (1,338,119) (1,161,127) (1,055,774) (1,006,631)
----------- ----------- ----------- ------------ ----------- ----------- -----------
Income before Income Taxes............ 381,679 346,257 701,976 472,380 483,822 447,868 448,354
Income Tax Expense.................... (123,579) (108,528) (220,135) (134,361) (122,288) (99,319) (97,822)
----------- ----------- ----------- ------------ ----------- ----------- -----------
Income before Extraordinary Item
and Cumulative Effect of
Accounting Change................. 258,100 237,729 481,841 338,019 361,534 348,549 350,532
Extraordinary Item (Redemption of
Debt)............................ (7,730) - - - - - -
Cumulative Effect of Accounting
Change............................ (7,885) 3,950 3,950 (37,885) - - -
----------- ----------- ----------- ------------ ----------- ----------- -----------
Net Income............................ $ 242,485 $ 241,679 $ 485,791 $ 300,134 $ 361,534 $ 348,549 $ 350,532
=========== =========== =========== ============ =========== =========== ===========
Net Income Per Share (Primary):
Income before Extraordinary Item
and Cumulative Effect of
Accounting Change................. $ 1.61 $ 1.47 $ 2.98 $ 2.11 $ 2.27 $ 2.19 $ 2.23
Extraordinary Item (Redemption of
Debt)............................ (0.05) - - - - - -
Cumulative Effect of Accounting
Change............................ (0.05) 0.03 0.03 (0.24) - - -
----------- ----------- ----------- ------------ ----------- ----------- -----------
Net Income............................ $ 1.51 $ 1.50 $ 3.01 $ 1.87 $ 2.27 $ 2.19 $ 2.23
=========== =========== =========== ============ =========== =========== ===========
Net Income Per Share (Fully Diluted):
Income before Extraordinary Item
and Cumulative Effect of
Accounting Change................. $ 1.60 $ 1.45 $ 2.93 $ 2.06 $ 2.23 $ 2.17 $ 2.17
Extraordinary Item (Redemption of
Debt)............................ (0.05) - - - - - -
Cumulative Effect of Accounting
Change............................ (0.05) 0.02 0.02 (0.22) - - -
----------- ----------- ----------- ------------ ----------- ----------- -----------
Net Income............................ $ 1.50 $ 1.47 $ 2.95 $ 1.84 $ 2.23 $ 2.17 $ 2.17
=========== =========== =========== ============ =========== =========== ===========
COMMON STOCK DATA:
Dividends Declared Per Share.......... $ 0.60 $ 0.54 $ 1.08 $ 1.04 $ 0.95 $ 0.91 $ 0.80
Book Value Per Share (Period-end)..... $ 20.47 $ 19.27 $ 20.21 $ 18.34 $ 17.26 $ 15.98 $ 14.94
BALANCE SHEET DATA (PERIOD-END):
Shareholders' Equity.................. $ 3,250,143 $ 3,093,459 $ 3,248,599 $ 2,940,893 $ 2,716,137 $ 2,533,339 $ 2,345,997
Long-Term Debt........................ $ 2,332,530 $ 1,287,813 $ 1,434,947 $ 975,381 $ 533,571 $ 325,216 $ 363,293
Total Assets.......................... $45,232,112 $40,389,160 $40,775,905 $ 40,937,190 $38,760,388 $36,879,336 $35,654,359
CAPITAL RATIOS (PERIOD-END):
Tier 1 Capital Ratio (Minimum - 4%)... 8.85 % 8.89 % 9.13 % 8.48 % 8.19 % 8.26 % *
Total Capital Ratio (Minimum - 8%).... 12.53 % 12.85 % 13.61 % 12.01 % 10.68 % 10.16 % *
Tier 1 Leverage Ratio (Minimum - 3%).. 6.80 % 6.97 % 7.33 % 6.46 % 6.24 % 6.30 % *
</TABLE>
* The current regulatory capital adequacy requirements were not effective for
years prior to 1990.
11
<PAGE> 17
AMERIFED FINANCIAL CORP.
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
NINE MONTHS
ENDED JUNE 30 YEAR ENDED SEPTEMBER 30
------------------ -------------------------------------------------
1994 1993 1993 1992 1991(a) 1990(a) 1989(a)
-------- -------- -------- -------- -------- --------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
SUMMARY OF OPERATING RESULTS:
Interest Income....................... $ 43,805 $ 50,343 $ 66,175 $ 72,631 $ 74,032 $ 73,857 $ 73,057
Interest Expense...................... (22,750) (25,644) (33,824) (42,655) (51,222) (57,214) (60,700)
-------- -------- -------- -------- -------- --------- --------
Net Interest Income................... 21,055 24,699 32,351 29,976 22,810 16,643 12,357
Provision for Possible Loan Losses.... 1 (1,559) (1,765) (1,508) (2,283) (558) (45)
Securities Gains(Losses).............. 446 - 2 119 - (7,573) (86)
Non-Interest Income................... 2,588 2,267 3,137 2,968 2,443 2,148 2,499
Non-Interest Expenses................. (15,397) (13,654) (18,069) (18,911) (16,250) (13,727) (12,275)
-------- -------- -------- -------- -------- --------- --------
Income before Income Taxes............ 8,693 11,753 15,656 12,644 6,720 (3,067) 2,450
Income Tax (Expense)Benefit........... (2,912) (4,183) (5,626) (4,573) (2,876) 873 (876)
-------- -------- -------- -------- -------- --------- --------
Net Income(Loss)...................... $ 5,781 $ 7,570 $ 10,030 $ 8,071 $ 3,844 $ (2,194) $ 1,574
======== ======== ======== ======== ======== ========= ========
Net Income Per Share (Primary)........ $ 1.76 $ 2.24 $ 2.98 $ 2.45 $ (b) $ (b) $ (b)
======== ======== ======== ======== ======== ========= ========
Net Income Per Share (Fully Diluted).. $ 1.75 $ 2.23 $ 2.96 $ 2.41 $ (b) $ (b) $ (b)
======== ======== ======== ======== ======== ========= ========
COMMON STOCK DATA:
Dividends Declared Per Share.......... $ 0.60 $ 1.45 $ 1.60 $ 0.50 $ (b) $ (b) $ (b)
Book Value Per Share (Period-end)..... $ 28.54 $ 27.64 $ 28.33 $ 26.53 $ 24.35 $ (b) $ (b)
BALANCE SHEET DATA (PERIOD-END):
Shareholders' Equity.................. $ 91,876 $ 84,568 $ 86,718 $ 85,440 $ 78,401 $ 48,092 $ 50,286
Long-Term Debt........................ $ 10,000 $ 20,000 $ 20,000 $ 20,000 $ 30,000 $ 30,000 $ 30,000
Total Assets.......................... $896,687 $887,028 $893,174 $899,027 $875,781 $ 802,463 $821,903
CAPITAL RATIOS (PERIOD-END) (C):
Tangible Capital Ratio................ 7.95 % 7.68 % 7.84 % 7.28 % 6.60 % 5.04 % (c)
Core Capital Ratio.................... 7.95 % 7.68 % 7.84 % 7.28 % 6.60 % 5.04 % (c)
Risk-Based Capital Ratio.............. 17.15 % 17.27 % 17.97 % 17.18 % 16.40 % 11.74 % (c)
</TABLE>
(a) The information presented for 1991 reflects the October 10, 1991 initial
public offering of AmeriFed Common Stock and the concurrent combination of
AmeriFed Bank into AmeriFed as if they had occurred on September 30, 1991.
Information presented for years prior to 1991 is of AmeriFed Bank, as AmeriFed
had no operations prior to 1991.
(b) The information for years prior to the year ended September 30, 1992, is
not meaningful since the initial public offering and concurren combination were
completed on October 10, 1991.
(c) Capital ratios presented are for AmeriFed Bank. The current regulatory
capital adequacy requirements were not effective for fiscal year 1990.
12
<PAGE> 18
MARKET VALUE OF SECURITIES
The AmeriFed equivalent per share market value shown in the following
table is calculated on the basis that one share of AmeriFed Common Stock is
equivalent to approximately 1.49 shares of NBD Common Stock. The assumed
exchange ratio is based on the number of shares of fully diluted AmeriFed
Common Stock outstanding at June 30, 1994, the fixed transaction price of
$45.00 per share of AmeriFed Common Stock, and the average closing price of NBD
Common Stock over a 5 day trading period ending June 30, 1994 ($31.30). The
actual Exchange Ratio will be determined on the average closing price per share
of NBD Common Stock for the five trading days ending on the fifth trading day
prior to the Effective Date of Merger.
<TABLE>
<CAPTION>
NBD AmeriFed
---------- ----------------------
Historical Historical Equivalent
Basis Basis Per Share
---------- ---------- ----------
<S> <C> <C> <C>
Market value of Common Stock at the close
of business on last trading day preceding
public announcement of the proposed Merger
(March 22, 1994).......................... $28 3/4 $32 3/4 $42 7/8
</TABLE>
COMPARATIVE PER SHARE DATA (UNAUDITED)
The following table presents NBD's historical and pro forma per share
data as well as AmeriFed's historical and equivalent pro forma per share data.
The information is based on the historical financial statements of NBD and
AmeriFed. The pro forma data do not purport to be indicative of the results of
future operations or the combined results that would have occurred had the
Merger been consummated at the beginning of the period presented. The pro forma
data give effect to the Merger and are based on numerous assumptions and
estimates. The pro forma data have been included as required by the rules of
the Commission and are provided for comparative purposes only. The information
presented below should be read in conjunction with other unaudited financial
information included elsewhere in this Proxy Statement-Prospectus, and with the
separate consolidated financial statements of NBD and AmeriFed, including
applicable notes, incorporated by reference herein.
<TABLE>
<CAPTION>
NBD AmeriFed
------------------------- ------------------------
Equivalent
Pro Pro
Historical Forma(a) Historical(b) Forma(a)
---------- -------- ------------- ----------
<S> <C> <C> <C> <C>
Per Share:
Book Value -- June 30, 1994 .......... $20.47 $20.60 $28.54 $30.69
-- December 31, 1993......... 20.21 20.21 28.79 32.13
Income before Extraordinary Item
and Accounting Change --
Six Months Ended June 30, 1994:
Primary........................... 1.61 1.58 1.29 2.35
Fully Diluted..................... 1.60 1.57 1.28 2.34
Year Ended December 31, 1993:
Primary........................... 2.98 2.95 2.98 4.69
Fully Diluted..................... 2.93 2.89 2.96 4.60
Cash Dividends Declared (Common) --
Six Months Ended June 30, 1994........ 0.60 0.60 0.40 0.89
Year Ended December 31, 1993.......... 1.08 1.08 1.60 1.72
</TABLE>
- --------------------
(a) The pro forma computations assume that AmeriFed stockholders would
receive approximately 1.49 shares of NBD Common Stock for each share of
AmeriFed Common Stock at June 30, 1994, and approximately 1.59 shares of
NBD Common Stock at December 31, 1993. For an explanation of assumed
exchange ratios, see "-- Market Value of Securities" above.
(b) The historical Income and Cash Dividends Declared for AmeriFed are for
the six months ended March 31, 1994, and the fiscal year ended September
30, 1993.
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<PAGE> 19
MEETING INFORMATION
INTRODUCTION
This Proxy Statement-Prospectus is being furnished to the stockholders of
AmeriFed in connection with the solicitation of proxies by the AmeriFed Board
for use at the Special Meeting. The Special Meeting will be held on December
9, 1994 at 3:00 p.m., local time, at 105 West Banquet Facilities, 1050 East
I-55 Frontage Road North, Joliet, Illinois 60435.
PURPOSE
The Special Meeting will be held for the purpose of considering and
voting upon a proposal to approve the Merger Agreement and to transact any and
all other business that may properly come before the Special Meeting.
VOTING RIGHTS AND RECORD DATE
Only holders of record of AmeriFed Common Stock at the close of
business on the Record Date are entitled to notice of and to vote at the
Special Meeting. On the Record Date, _____________ shares of AmeriFed Common
Stock were issued and outstanding. Approximately _________________ shares
(constituting approximately _____% of the outstanding shares of AmeriFed Common
Stock) were beneficially owned by directors and executive officers of AmeriFed
and their affiliates on the Record Date. An unrelated corporate trustee of
the AmeriFed ESOP owned ______________ shares of AmeriFed Common Stock on the
Record Date (constituting approximately ______% of the outstanding shares).
Pursuant to the terms of the ESOP, shares held by the ESOP that are allocated
to the accounts of the ESOP participants shall be voted by the ESOP trustee as
directed by such participants. Shares held by the ESOP that are currently
unallocated shall be voted by the ESOP trustee proportionate to the directions
given by ESOP participants with respect to allocated shares so long as such
vote is in accordance with the provisions of ERISA. Each holder of record of
shares of AmeriFed Common Stock on the Record Date will be entitled to one vote
for each share registered in his or her name on each matter presented to a vote
of the stockholders at the Special Meeting, except as described below. As
provided in AmeriFed's Certificate of Incorporation, recordholders of AmeriFed
Common Stock who beneficially own in excess of 10% of the outstanding shares of
AmeriFed Common Stock (the "Limit") are not entitled to any vote in respect to
the shares held in excess of the Limit. A person or entity is deemed to
beneficially own shares owned by an affiliate of, as well as persons acting in
concert with, such person or entity.
The presence, in person or by proxy, of a majority of the outstanding
shares of AmeriFed Common Stock entitled to vote (after subtracting any shares
in excess of the Limit) is necessary to constitute a quorum of the shareholders
in order to take action at the Special Meeting. For these purposes, shares of
AmeriFed Common Stock which are present or represented by proxy at the Special
Meeting will be counted for quorum purposes regardless of whether the holder of
the shares or proxy fails to vote on the Merger Agreement or whether a broker
with discretionary authority fails to exercise its discretionary voting
authority. Once a quorum is established, approval of the Merger Agreement
requires the affirmative vote of holders of a majority of the outstanding
shares of AmeriFed Common Stock. FOR VOTING PURPOSES THEREFORE, ABSTENTIONS
AND "BROKER NON-VOTES" WILL HAVE THE SAME EFFECT AS VOTES AGAINST THE MERGER.
VOTING AND REVOCATION OF PROXIES
Any stockholder giving a proxy prior to the Special Meeting has the right
to revoke it prior to its exercise by executing and delivering a later-dated
proxy, by delivering a written notice of revocation to the Secretary of
AmeriFed, or by attending the Special Meeting and voting in person. All
proxies will be voted in accordance with the directions of the stockholder
executing such proxy and, to the extent no directions are given, will be voted
"FOR" approval of the Merger Agreement.
SOLICITATION OF PROXIES
The enclosed proxy is being solicited by the AmeriFed Board for use in
connection with its Special Meeting. AmeriFed will bear its own expenses in
connection with the solicitation of proxies for its Special Meeting, except
that
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<PAGE> 20
NBD shall pay the cost incurred in printing this Proxy Statement-Prospectus. In
addition to solicitation of proxies by use of the mails, Kissel Blake, a proxy
solicitation firm, will assist AmeriFed in soliciting proxies for the Special
Meeting and will be paid a fee estimated to be $4,500, plus out-of-pocket
expenses. Directors, officers and regular employees of AmeriFed and its
subsidiaries may also make solicitations of proxies of stockholders either
personally or by telephone, telegram or other forms of communication. These
persons will not be specifically compensated for soliciting proxies. Brokerage
houses, custodians, nominees and fiduciaries will be requested to forward the
proxy soliciting materials to the beneficial owners of shares of AmeriFed
Common Stock held of record by such persons, and AmeriFed will reimburse them
for their charges and expenses.
PROPOSED MERGER
This section of the Proxy Statement-Prospectus describes the material
features of the Agreements and the transactions contemplated thereunder. The
Merger Agreement sets forth the terms upon which the Merger, if consummated,
will be effected. The Reorganization Agreement sets forth various
representations, warranties and covenants of the parties relating to the
consummation of the Merger as well as the conditions which must be satisfied
for the Merger to be completed. The following description does not purport to
be complete and is qualified in its entirety by reference to the Agreements.
All stockholders are urged to read the Merger Agreement, which is set forth as
Appendix A to this Proxy Statement-Prospectus, in its entirety. A COPY OF THE
REORGANIZATION AGREEMENT AND OPTION AGREEMENT WILL BE PROVIDED WITHOUT CHARGE
TO ANY PERSON TO WHOM THIS PROXY STATEMENT-PROSPECTUS IS DELIVERED UPON WRITTEN
REQUEST TO ROBERT BIEDRON, EXECUTIVE VICE PRESIDENT AND SECRETARY OF AMERIFED,
OR DANIEL T. LIS, SENIOR VICE PRESIDENT AND SECRETARY OF NBD, AT THEIR
RESPECTIVE ADDRESSES.
GENERAL
Under the terms of the Merger Agreement, AmeriFed will be merged with and
into NBD Illinois, a wholly-owned subsidiary of NBD. Pursuant to a related
Agreement of Merger, it is intended that immediately following the Merger,
AmeriFed Bank will merge with and into NBD Bank, a wholly-owned subsidiary of
NBD Illinois. If the proposed Merger is consummated, each share of AmeriFed
Common Stock will be converted into and be exchangeable for the number of
shares of NBD Common Stock equal to a fraction, the numerator of which shall be
equal to $45.00, and denominator of which shall be equal to the average closing
price per share of NBD Common Stock as reported on the NYSE Composite Tape for
the five trading days ending on the fifth trading day prior to the Effective
Date of Merger.
BACKGROUND OF THE MERGER
Originally chartered in 1934, AmeriFed Bank converted to a stock form of
organization and formed AmeriFed as its holding company in 1991. The period
subsequent to the conversion has been one of continued and substantial change
in the banking industry, characterized by heightened regulatory scrutiny, and
intensifying competition and consolidation. Management and the AmeriFed Board
focused on these changes and sought to best position AmeriFed and its
stockholders.
In light of an unsolicited expression of interest in AmeriFed from
another institution, the AmeriFed Board, in August of 1993, appointed a
committee (the "Committee") to evaluate the position AmeriFed should take in
reference to possible mergers, acquisitions and combinations, and in general
any efforts which might enhance stockholder value. After discussing with legal
counsel the considerations in selling AmeriFed and hearing presentations from
several financial advisory firms, the AmeriFed Board engaged The Chicago
Corporation in October of 1993 to render general financial advisory services as
well as merger and acquisition services to AmeriFed. The Chicago Corporation
prepared confidential information packets regarding AmeriFed, which were
distributed to potential buyers and met with certain prospective buyers.
From October of 1993 until March 1994, AmeriFed received several
preliminary indications of interest from other entities concerning the
possibility of pursuing a merger with or acquisition of AmeriFed. Other than
with respect to those matters discussed below, these indications of interest
were informal in
15
<PAGE> 21
nature and no formal offers resulted therefrom. All indications of interest
were analyzed by AmeriFed's financial advisor and were presented by the senior
management of AmeriFed to the Committee for review and analysis. Each of these
indications of interest was rejected by AmeriFed for a variety of reasons,
including the proposed range of consideration being discussed, the timing of
the offer, the pre-existing economic and market conditions, and the proposed
structure of the transaction.
One such indication of interest came from NBD in February 1994. At that
time, AmeriFed's Chief Executive Officer, Robert B. Breidert, met with
representatives of NBD concerning NBD's interest in pursuing a possible
acquisition of AmeriFed. In the same time period, other such indications of
interest came from other bank holding companies about exploring the possibility
of acquiring AmeriFed. Members of senior management met with representatives
of NBD and the other institutions to discuss the terms of the proposed
acquisitions. On February 23, 1994, the Committee discussed NBD's indication
of interest as well as other indications of interest and allowed senior
management to go forward with further discussions. As a result of these
discussions, NBD and two other institutions performed preliminary due
diligence, and NBD and one of the other institutions submitted draft merger
agreements regarding the structure and terms of the proposed acquisitions.
On March 23, 1994, the AmeriFed Board met to evaluate the proposals from
NBD and the other institution. At the meeting, a report was presented by The
Chicago Corporation regarding the two proposals and the proposed acquirors.
The Chicago Corporation representatives discussed the financial terms of the
two proposals, a description of the historical market prices of the
institutions, a comparison of the financial and market performance of AmeriFed
to that of a group of savings institutions in the Midwest, a comparison of each
institution's proposal to numerous recent transactions, an analysis of each
institution's financial ability to acquire AmeriFed relative to certain other
banking institutions and an analysis of the range of potential values, based on
a discounted cash flow analysis of AmeriFed Common Stock. Legal counsel, which
was also present, discussed the AmeriFed Board's fiduciary obligations in
connection with the merger or acquisition of AmeriFed. Members of senior
management of AmeriFed, together with its legal and financial advisors,
reviewed with the AmeriFed Board, among other things, the background and
potential benefits of the transaction, including the strategic rationale for
the transaction. Of particular importance to the AmeriFed Board was the fact
that NBD's offer included a fixed price with a variable exchange ratio which
was not limited by any caps or collars (i.e. no maximum or minimum exchange
ratio at which the transaction would be restructured). At such time, The
Chicago Corporation rendered oral advice as to the fairness of the NBD
consideration, from a financial point of view, to be paid to holders of
AmeriFed Common Stock. Following further discussion, the AmeriFed Board
unanimously approved the Merger with NBD and authorized Mr. Breidert to execute
the Merger Agreements after review and approval by legal counsel.
Subsequently, the Merger Agreements were executed and a press release was
issued that same day announcing the Merger Agreements.
REASONS FOR THE MERGER
The AmeriFed Board, with the assistance of outside financial and legal
advisors, has evaluated the financial, legal and market conditions bearing on
the decision to recommend the Merger. The terms of the Merger, including the
price, are a result of arm's-length negotiations between representatives of
AmeriFed and NBD. In reaching its determination that the Merger Agreements are
fair to, and in the best interest of, AmeriFed and holders of AmeriFed Common
Stock, the AmeriFed Board considered a number of factors, both from a short and
long-term perspective, including, without limitation, the following:
(i) the AmeriFed Board's familiarity with and review of AmeriFed's
business, financial condition, results of operations, management,
prospects, including, but not limited to, its potential growth,
development, productivity and profitability, and the business
risks associated therewith;
(ii) the current and prospective environment in which AmeriFed
operates, including national and local economic conditions, the
competitive environment for financial institutions generally, the
increased regulatory burden on financial institutions generally
and the trend
16
<PAGE> 22
toward consolidation in the financial services industry,
particularly in AmeriFed's market area;
(iii) information concerning the business, operations, asset quality and
prospects of NBD, including recent acquisitions and the recent
performance of NBD Common Stock;
(iv) the oral and written presentation and oral opinion of AmeriFed's
financial advisor, The Chicago Corporation, that the consideration
was fair to the holders of AmeriFed Common Stock from a financial
point of view;
(v) the financial and other significant terms of the NBD offer
compared to the other offer;
(vi) the potential upside value offered in connection with the NBD
offer compared to the other offer, and downside protection
associated with the NBD offer compared to the other offer;
(vii) the review by AmeriFed Board with its legal and financial advisors
of the provisions of the proposed Merger Agreements;
(viii) AmeriFed Board's belief that the terms of the proposed Merger
Agreements with NBD were attractive in that they would allow
AmeriFed stockholders to receive stock in the Merger, thus
permitting stockholders to defer any tax liability associated with
the increase in the value of their stock as a result of the Merger
and to become stockholders in NBD, an institution with strong
operations, management and earnings performance.
(ix) the expectation that NBD will continue to provide quality service
to the community and customers served by AmeriFed;
(x) the compatibility of the respective business and management
philosophies of AmeriFed and NBD;
(xi) the broad range of products and services, as well as greater
convenience, which will be afforded AmeriFed customers as a result
of the Merger; and
(xii) the alternative strategic courses available to AmeriFed, including
remaining independent or exploring other indications of interest
from other potential acquirors.
THE IMPORTANCE OF THESE FACTORS RELATIVE TO ONE ANOTHER CANNOT PRECISELY
BE DETERMINED OR STATED HEREIN. THE AMERIFED BOARD UNANIMOUSLY APPROVED THE
MERGER AGREEMENT AND UNANIMOUSLY RECOMMENDS THAT AMERIFED STOCKHOLDERS VOTE FOR
APPROVAL OF THE MERGER AGREEMENT.
EFFECTIVE DATE OF MERGER
The Merger will be consummated at the close of business on the date
specified in a Certificate of Merger filed in accordance with the Delaware
General Corporation Law. The date on which the Merger will be consummated is
referred to herein as the "Effective Date of Merger". The Reorganization
Agreement provides that the Merger shall not be consummated prior to January 1,
1995. It is anticipated that if the stockholders of AmeriFed approve the
Merger Agreement at the Special Meeting and the approvals of all requisite
government regulatory authorities are obtained, the Effective Date of Merger
will be early in the first quarter of 1995, provided that the Merger Agreements
are not terminated prior to such date. See "PROPOSED MERGER -- Conditions to
the Merger" and "-- Termination, Amendment and Waiver."
OPINION OF FINANCIAL ADVISOR TO AMERIFED
The Chicago Corporation has delivered its written opinion to the AmeriFed
Board that, based upon and subject to the various considerations set forth in
the opinion dated ___________________, 1994, the consideration being received by
AmeriFed stockholders in the Merger is fair from a financial point of view to
AmeriFed's stockholders as of the date of its opinion. At each stage of The
Chicago
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<PAGE> 23
Corporation's engagement, the AmeriFed Board carefully and thoroughly reviewed
the materials and presentations of The Chicago Corporation and made inquiries
of The Chicago Corporation personnel as to the methodology and the assumptions
utilized in its analysis. No limitations were imposed by the AmeriFed Board
upon The Chicago Corporation with respect to the investigations made or
procedures followed by it in rendering its opinion.
The full text of the opinion of The Chicago Corporation, which sets forth
assumptions made, matters considered and limitations on the review undertaken,
is attached hereto as Appendix B. AmeriFed stockholders are urged to read the
opinion in its entirety.
The Chicago Corporation's opinion is directed only to the consideration
to be received in the Merger and does not constitute a recommendation to any
AmeriFed stockholders as to how such stockholder should vote at the Special
Meeting. The summary of the opinion of The Chicago Corporation set forth in
this Proxy Statement-Prospectus is qualified in its entirety by reference to
the full text of such opinion attached hereto as Appendix B.
AmeriFed retained The Chicago Corporation as its financial advisor on the
basis of the firm's reputation, experience and familiarity with the banking
industry and with merger and acquisition transactions. As part of its
investment banking business, The Chicago Corporation is regularly engaged in
the valuation of businesses in connection with mergers and acquisitions,
negotiated underwritings, secondary distributions of listed and unlisted
securities, private placements and valuation for corporate and other purposes.
During the course of its engagement, and as a basis for arriving at its
opinion, The Chicago Corporation reviewed and analyzed material bearing upon
the financial and operating condition of AmeriFed and NBD and material prepared
in connection with the Merger, as follows: (i) the Merger Agreement; (ii)
publicly available information concerning AmeriFed and NBD, consisting of
required regulatory financial statements and Consolidated Reports of Condition
and Income for each of the last five fiscal years; (iii) the nature and terms
of recent sale and merger transactions involving thrift and bank holding
companies that The Chicago Corporation considered reasonably similar to
AmeriFed and NBD in size, financial character, operating character, historical
performance and geographic market; (iv) historical and current market data for
AmeriFed Common Stock and NBD Common Stock and financial and other information
provided to The Chicago Corporation by the managements of AmeriFed and NBD,
consisting of loan review and asset quality information, asset-liability
management information, subsidiary bank performance and management reports, and
budget and planning information; and (v) the Registration Statement and this
Proxy Statement-Prospectus. These analyses are discussed in more detail below.
In addition, The Chicago Corporation conducted meetings with members of senior
management of AmeriFed and NBD for the purpose of reviewing the future
prospects of AmeriFed and NBD. The Chicago Corporation evaluated the pro forma
ownership of NBD Common Stock by AmeriFed stockholders, relative to the pro
forma contribution of AmeriFed's assets, liabilities, equity and earnings of
the proposed combined company. The Chicago Corporation also took into account
its experience in other transactions, as well as its knowledge of the banking
industry and its general experience in securities valuations. In rendering its
opinion, The Chicago Corporation assumed without independent verification, the
accuracy and completeness of the financial and other information and
representations provided to it by AmeriFed and NBD.
The following is a summary of the material terms considered and the
analyses performed by The Chicago Corporation in rendering its opinion during
the course of its engagement in connection with its __________________, 1994
opinion.
NET PRESENT VALUE ANALYSIS. The Chicago Corporation prepared a net
present value analysis which indicated theoretical values for AmeriFed based on
return on average assets ranging between _____% and _____% and asset growth
rates ranging between _____% and _____%. The results of this analysis
indicated a range of theoretical values for AmeriFed between $ ______ per share
(_____% return on average assets; _______% asset growth rate) and $_______ per
share (_____________% return on average assets; _____% asset growth rate).
With a return on average assets of _________%, which approximated AmeriFed's
recent historical performance, theoretical values ranged from $ __________,
( ____% asset growth rate) to $ (______% asset growth rate). At an asset
growth rate of _______%, which approximated AmeriFed's recent historical
performance, theoretical values ranged
18
<PAGE> 24
from $ _____ (_____% return on average assets) to $_______ (_______% return on
average assets). The nominal value of the offer from NBD based on the five-day
closing average for NBD Common Stock on ________________, 1994 of $ ______ was
$45.00.
CONTRIBUTION ANALYSIS. The Chicago Corporation prepared a contribution
analysis showing the percentages of assets, deposits, common equity, 1993 and
estimated 1994 and 1995 net income contributed to the combined company on a pro
forma basis by AmeriFed and NBD, and compared these percentages to the pro
forma ownership of NBD. This analysis showed that AmeriFed, as of ________,
1994, would contribute ______% of pro forma consolidated total assets, _______%
of deposits, _____% of common equity, _____% of 1993 net income _____% of
estimated 1994 net income and ____% of estimated 1995 net income. Based on the
NBD offer, stockholders of AmeriFed would own approximately ______% of the pro
forma common shares outstanding of NBD.
COMPARABLE TRANSACTION ANALYSIS. The Chicago Corporation reviewed
selected comparable merger and acquisition transactions. The following merger
transactions were reviewed based on publicly available data (the acquiror is
named first and underlined, followed by the seller):
Transactions were selected on the basis of comparability of transaction
value and the perceived comparability of the markets served by the acquired
institutions to those of AmeriFed. For the comparable transactions, the
multiple of price to trailing 12 months earnings ranged from ________ to ______
with an average of ______. At ________________, 1994, the NBD proposed purchase
price represented a multiple of trailing 12 months earnings of __________.
For the comparable transactions, the multiple of purchase price to book
value ranged from ______ to _________ with an average of ______. The NBD
offer to AmeriFed represented a multiple to ____________, 1994 book value
of _________________.
FINANCIAL IMPLICATIONS TO AMERIFED STOCKHOLDERS. The Chicago Corporation
prepared an analysis of the financial implications of the NBD offer to a
AmeriFed stockholder. This analysis indicated that on a pro forma equivalent
basis a stockholder of AmeriFed would achieve an increase in earnings per
share, and increase in per share dividends and a _____________ in book value per
share as a result of the consummation of the Merger.
COMPARATIVE STOCKHOLDER RETURNS. The Chicago Corporation presented an
analysis of comparative theoretical stockholder returns for several scenarios,
including AmeriFed remaining independent, AmeriFed being acquired in 1997 and
AmeriFed being acquired in 1994 by NBD. This analysis, which was based on
projected dividend streams and projected 1997 common stock valuations (using
current price-to-earnings multiples), indicated total stockholder returns of
_____% for AmeriFed remaining independent, _____% for a merger in 1997 and
_____% based on the acceptance of NBD's offer in 1994. The Chicago
Corporation also prepared an analysis of the possible pricing of a merger
transaction with certain other midwest-based thrift and bank holding companies
using estimated 1994 net income for AmeriFed and stock prices of selected
companies and assuming no earnings per share dilution for the buyer. The
holding companies reviewed and eligible to acquire a thrift holding company in
Illinois, included:
Given the assumptions, the analysis indicated that these companies could
pay a high of $ _______ per share and a low of $ ______ per share for all of the
shares of AmeriFed.
COMPARABLE COMPANY ANALYSIS. The Chicago Corporation compared the market
price, market-to-book value and price-to-earnings multiples of NBD Common Stock
with the individual market multiples and averages of the following selected
comparable companies which it deemed to be reasonably similar to NBD in size,
financial character, operating character, historical performance and/or
geographic market:
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<PAGE> 25
This analysis indicated that NBD Common Stock sold at a price of ________
times the ____________, 1994 book value and the comparables sold at an
average price of times book value. NBD Common Stock sold at a multiple
of price to trailing 12 months earnings of ________, while the comparable
group average price-to-earnings multiple was _______________.
The summary of The Chicago Corporation analysis set forth above is a fair
summary thereof but does not propose to be a complete description of the
presentations by The Chicago Corporation to the AmeriFed Board. The Chicago
Corporation believes that its analysis and the summary set forth above must be
considered as a whole and that selecting portions of analysis, without
considering all factors and analyses, could create an incomplete view of the
process by which a fairness opinion is rendered. In connection with its
analyses, The Chicago Corporation assumed that there would be no material
adverse change in general economic, business, market and/or regulatory
conditions, all of which are beyond the control of NBD and AmeriFed. The
analysis performed by The Chicago Corporation are not necessarily indicative of
actual values of future results, which may be significantly more or less
favorable than suggested by such analyses.
FEES AND INDEMNIFICATION. The fees due to The Chicago Corporation under
the agreement between The Chicago Corporation and AmeriFed ("The Chicago
Corporation Agreement") are payable by AmeriFed as follows: $25,000 at the
date of execution of The Chicago Corporation Agreement, a cash fee equal to
0.30% of the total consideration of the transaction payable at the time a
definitive agreement is signed and a cash fee equal to 0.80% of the total
consideration of the transaction (less the $25,000 and the fee payable on the
signing of a definitive agreement) payable at the closing.
In addition to such fees, AmeriFed has agreed to reimburse The Chicago
Corporation for all reasonable out-of-pocket expenses and will pay to The
Chicago Corporation a fee of $1,500 per day for preparation and court
appearances should The Chicago Corporation be called upon in any legal
proceeding to deliver expert testimony with regard to the fairness opinion.
AmeriFed has also agreed to indemnify The Chicago Corporation, its officers,
directors, agents, employees and certain controlling persons from and against
any losses, claims, damages and liabilities in connection with or arising out
of the transactions or services referred to in The Chicago Corporation
Agreement. This indemnification is subject to certain conditions and
procedures set forth in an indemnification agreement between AmeriFed and The
Chicago Corporation.
CONSIDERATION FOR SHARES
The rate of exchange and general terms of the Agreements were arrived at
through arms-length negotiations between NBD and AmeriFed.
NBD COMMON STOCK IN THE MERGER
Upon consummation of the Merger, each outstanding share of AmeriFed
Common Stock (other than shares owned by NBD, NBD Illinois or AmeriFed, which
will be cancelled) will be automatically converted and exchanged for a number
of shares of NBD Common Stock equal to a fraction, the numerator of which shall
be equal to $45.00, and the denominator of which shall be equal to the average
closing price per share of NBD Common Stock as reported on the NYSE Composite
Tape for the five trading days ending on the fifth trading day prior to the
Effective Date of Merger, as defined in the Merger Agreement.
CASH IN LIEU OF FRACTIONAL SHARES
Each holder of a certificate or certificates representing shares of
AmeriFed Common Stock who would otherwise have been entitled to receive a
fraction of a share of NBD Common Stock (after aggregating all AmeriFed Common
Stock represented by such certificate or certificates then delivered by such
holder) shall receive, in lieu thereof, an amount of cash (without interest)
determined by multiplying such fraction by the average closing price of a whole
share of NBD Common Stock on the NYSE Composite Tape during the five trading
days ending on the fifth trading day prior to the Effective Date of Merger.
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<PAGE> 26
DELIVERY OF NBD COMMON STOCK
As promptly as practicable after the Effective Time of the Merger, NBD
will cause appropriate transmittal materials to be mailed to each AmeriFed
stockholder of record on the Effective Date of Merger for the purpose of
exchanging his or her share certificates. NBD or State Street Bank and Trust
Company, as exchange agent (the "Exchange Agent"), will mail or deliver to each
former AmeriFed stockholder whose shares have been converted into NBD Common
Stock and who has surrendered his or her certificates representing AmeriFed
Common Stock, a certificate or certificates representing the number of whole
shares of NBD Common Stock to which the stockholder is entitled plus a check in
the amount of cash paid in lieu of fractional shares. The Merger Agreement
provides that after the Effective Date of Merger and until AmeriFed Common
Stock certificates are exchanged, no dividend payable with respect to NBD
Common Stock will be paid to the holders of certificates previously
representing AmeriFed Common Stock. Upon exchange of such certificates,
however, there will be paid the amount (without interest and less the amount of
taxes, if any, which may have been imposed or paid thereon) of all dividends,
if any, which shall have been declared and paid after the Effective Date of
Merger with respect to the shares of NBD Common Stock issuable under the Merger
Agreement in respect of the AmeriFed Common Stock represented by such
surrendered certificates. To avoid backup Federal income tax withholding on
payments made to them, stockholders of AmeriFed will be required to furnish
their taxpayer identification numbers and appropriate certifications to the
Exchange Agent on the transmittal form.
After the Effective Date of Merger, there will be no further transfer on
the books of AmeriFed of certificates theretofore representing AmeriFed Common
Stock and, if such certificates are presented for transfer, they will be
cancelled against delivery of certificates for NBD Common Stock as described
herein.
CERTIFICATES FOR AMERIFED COMMON STOCK SHOULD NOT BE SENT TO THE EXCHANGE
AGENT AT THIS TIME, BUT ONLY WHEN A STOCKHOLDER HAS RECEIVED A TRANSMITTAL
FORM.
Shares of NBD Common Stock issued and outstanding immediately prior to
the Effective Date of Merger will remain issued and outstanding and will be
unaffected by the Merger, and holders of such NBD Common Stock will not be
required to exchange the certificates evidencing such stock or take any other
action by reason of the consummation of the Merger.
SOURCE OF NBD COMMON STOCK
The shares of NBD Common Stock that will be utilized in the Merger may be
authorized and unissued shares and/or treasury shares. At the time of the
announcement of execution of the Agreements NBD also announced its intention to
repurchase the number of shares of NBD Common Stock to be exchanged in the
Merger, and that repurchase program is substantially complete. All such
repurchases have and shall comply with the requirements of the Commission, the
NYSE and applicable regulatory authorities. In addition, the Merger Agreement
prohibits such repurchases during the 30-day period prior to the Effective Date
of Merger.
CONDITIONS TO THE MERGER
The Reorganization Agreement sets forth various representations,
warranties and covenants of the parties relating to the consummation of the
Merger, conditions which must be satisfied before the Merger may be consummated
and grounds for termination of the Merger, as discussed below. The
representations and warranties include, among other things, the parties'
organization, financial condition, capitalization, pending and threatened
litigation and enforceability of the Merger Agreement. The obligations of NBD,
NBD Illinois and AmeriFed to cause the Merger to be consummated are subject to
the following conditions, among others: (i) approval of the Merger Agreement by
the stockholders of AmeriFed; (ii) approval of the Merger by the all requisite
government regulatory authorities without any conditions which in the
reasonable opinion of NBD and AmeriFed are materially adverse, and such
approvals have not been withdrawn or stayed, and all statutory waiting periods
have expired; (iii) delivery of officers' certificates by each party certifying
as to representations and warranties made by each party; and (iv) delivery of
certain legal opinions, including a favorable tax opinion; (v)
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the Registration Statement, of which this Proxy Statement-Prospectus is a part,
is declared effective under the Securities Act of 1933, as amended. No stop
order has been issued or threatened; (vi) neither NBD nor AmeriFed is subject
to any order or decree of a court or agency of competent jurisdiction enjoining
or prohibiting the Merger; (vii) the shares of NBD Stock to be delivered to
AmeriFed shareholders pursuant to the Merger are approved for listing on the
NYSE; and (viii) an opinion has been received by AmeriFed from The Chicago
Corporation to the effect that consideration received by AmeriFed stockholders
in the Merger is fair from a financial point of view.
REGULATORY MATTERS
Bank holding companies (such as NBD and NBD Illinois), savings and loan
holding companies (such as AmeriFed), and their respective depository
institution subsidiaries (including NBD Bank and AmeriFed Bank, respectively)
are highly regulated institutions, with numerous federal and state laws and
regulations governing their activities. Among these are laws and regulations
requiring prior approval by applicable government regulatory authorities in
connection with acquisition and merger transactions such as the Merger and the
Subsidiary Bank Merger, as summarized below. In addition, these institutions
are subject to ongoing supervision, regulation, and periodic examination by
various federal and state financial institution regulatory agencies. Detailed
discussions of such ongoing regulatory oversight and the laws and regulations
under which it is carried out can be found in the Forms 10-K of each of NBD and
AmeriFed incorporated by reference herein. See "AVAILABLE INFORMATION" and
"INFORMATION INCORPORATED BY REFERENCE." Those summaries are qualified in
their entirety by the actual language of the laws and regulations, which are
subject to change based on recently enacted and future legislation and action
by regulatory agencies. As an example, recently enacted legislation would,
among other things, permit nationwide interstate bank acquisitions in one year
and nationwide interstate branching in three years, subject in the case of
branching to the right of states to "opt out" of the legislation.
Applications for approval of the Merger and/or the Subsidiary Bank Merger
have been submitted to the Federal Deposit Insurance Corporation ("FDIC"), the
Federal Reserve Bank of Chicago (the "FRB"), the Office of Thrift Supervision
("OTS"), and the Illinois Commissioner of Banks and Trust Companies (the
"Illinois Commissioner"). The FDIC applications were submitted pursuant to
Sections 5(d)(3)("Oakar II") and 18(c)(the "Bank Merger Act") of the Federal
Deposit Insurance Act and the FRB applications were submitted pursuant to Oakar
II which substantially incorporates the provisions of the Bank Merger Act. The
Bank Merger Act requires that the applicable regulator take into consideration,
among other factors, the financial and managerial resources and future
prospects of the merging institutions as well as the convenience and needs of
the communities to be served by the resulting institution (including compliance
with anti-competitive concerns, Community Reinvestment Act provisions, and fair
lending laws). Under the Bank Merger Act, the proposed transaction may not be
consummated prior to the 30th day following the date of approval of the
applicable federal regulatory agency (in this case the FDIC), during which time
the United States Department of Justice (the "DOJ") may challenge the
transaction on antitrust grounds. The post-approval waiting period may be
reduced by the FDIC, with the concurrence of the DOJ, to a minimum of 15 days.
The OTS applications were filed pursuant to the provisions of the Home Owners
Loan Act and related OTS regulations, pursuant to which the OTS will take into
consideration a number of factors similar to those indicated above as well as
the structure of the proposed transaction, whether the acquiring bank has
agreed to assume the thrift's liquidation account obligations, and whether the
terms of the transaction and the benefits to be received by management of the
thrift have been fully disclosed to the thrift's stockholders. The application
filed with the Illinois Commissioner seeks approval for the Subsidiary Bank
Merger pursuant to the Illinois Banking Act, and focuses on substantially the
same considerations as the Bank Merger Act.
The Merger and therefore the Subsidiary Bank Merger cannot proceed in the
absence of the requisite regulatory approvals. There can be no assurance each
of these government regulatory authorities will approve the Merger and/or the
Subsidiary Bank Merger, and if they are approved, there can be no assurance as
to the date of such approvals.
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TERMINATION, AMENDMENT AND WAIVER
It is contemplated that the conditions to the Merger noted above will be
fulfilled prior to the consummation of the Merger. If, however, any one or more
of such conditions, other than the approval of the Merger Agreement by the
stockholders of AmeriFed and the approval of the transaction by all required
governmental authorities, shall not have been satisfied, the party whose
obligation to proceed is made subject to the satisfaction of such condition
may, nevertheless, at its election waive such condition and proceed with the
Merger.
The Agreements may be terminated and the Merger abandoned at any time
prior to the Effective Date of the Merger, either before or after approval of
the Merger Agreement by the stockholders of AmeriFed, in any of the following
ways among others: (i) by mutual consent of NBD and AmeriFed; (ii) by either
NBD or AmeriFed if the terminating party provides written notice of a material
breach of any representation, warranty or agreement contained in the
Reorganization Agreement within a specified period after its discovery and such
breach is not cured within sixty days after such written notice; (iii) by
either NBD or AmeriFed if the Effective Date of Merger has not occurred on or
before March 31, 1995; (iv) by either NBD or AmeriFed if a final unappealable
injunction or other judgment shall have been issued by a court restraining or
prohibiting consummation of the transactions contemplated by the Reorganization
Agreement; (v) by either NBD or AmeriFed if a required government regulatory
approval shall have been refused or shall have been conditioned in a manner not
reasonably satisfactory to NBD, provided that NBD shall have the right to
initiate and pursue expeditiously an appeal from any such refusal or imposition
of an unsatisfactory condition and, in the event of such appeal, such refusal
or imposition of condition shall be deemed not to have been made until the
termination of such appeal or the time that such refusal or imposition of a
condition has become final and non-appealable. Any such termination shall be
approved by the Board of Directors.
In the event the Agreements are terminated and the Merger abandoned by
virtue of the grounds set forth in clause (ii) above, the party causing such
breach shall reimburse the other party for all reasonable expenses incurred by
such party in connection with the transactions contemplated by the Merger
Agreements. In the event of such a termination due to any other cause, each
party shall bear its own expenses. In the event the Agreements are terminated
and the Merger abandoned despite the best efforts of the parties, no party
shall incur any liability except to the extent described above with respect to
expenses.
The Agreements may be amended, or any of the terms or conditions thereof
waived, at any time before or after approval of the Merger Agreement by the
stockholders of AmeriFed; provided, however, that any such change which is
proposed subsequent to stockholder approval may not, without further approval
of such stockholders, alter or change the amount of kind of consideration to be
received in the Merger or alter or change any of the terms and conditions of
the Merger Agreement if such alternation or change would adversely affect such
stockholders.
BUSINESS OF AMERIFED PENDING THE MERGER
The Reorganization Agreement also contains covenants to which AmeriFed
has agreed. The covenants remain in effect until the Effective Date of Merger
or until the Agreements are terminated, and include, among others, an agreement
that AmeriFed and each of its subsidiaries will conduct its affairs in the
ordinary course of business consistent with past and current practice, use its
best efforts to maintain and preserve its business organization, employees and
advantageous business relationships and to retain the services of its key
officers or employees. Neither AmeriFed nor its subsidiaries shall, without
prior written consent of NBD: (i) enter into any employment, severance or other
personnel contract or plan with any director, officer or employee, except for
approval of renewal of existing agreements and payment of bonuses in the normal
course of business and consistent with past practice; (ii) except for shares
issued pursuant to employee and director stock options, issue any capital stock
or any security convertible into capital stock, or grant any option, warrant or
other rights to acquire capital stock, effect any stock split, adjustment or
recapitalization, or otherwise alter its capital structure; (iii) propose or
adopt any amendment to its articles of incorporation, association or other
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charter document; (iv) purchase, redeem, retire or otherwise acquire or dispose
of any shares of its capital stock; (v) take any action which would cause any
significant decrease in the book value of the shares of its capital stock or
which would have a material adverse affect on its financial condition, subject
to the right of AmeriFed and its subsidiaries to value assets in accordance
with applicable legal and accounting requirements; (vi) enter into any contract
or arrangement other than in the ordinary course of business; (vii) make or
commit to make any capital expenditure in an amount exceeding $100,000; or
(viii) take any action that would adversely effect or delay the ability of NBD
or AmeriFed to obtain requisite regulatory approvals or to perform any of the
covenants and agreements under the Reorganization Agreement, or which would
make any of the representations and warranties made in the Reorganization
Agreement untrue or incorrect in any material respect.
INTERESTS OF CERTAIN PERSONS IN THE MERGER
At September 30, 1994, all directors and executive officers of AmeriFed
as a group beneficially owned _________ shares or ___________ percent of the
outstanding shares of AmeriFed Common Stock. No director or executive officer
of AmeriFed owns any NBD Bancorp Common Stock.
Certain members of AmeriFed's management and the AmeriFed Board may be
deemed to have certain interests in the Merger that are in addition to their
interests as stockholders of AmeriFed generally, including the interests
described below. The AmeriFed Board was aware of these interests, and
considered them, among other matters, in approving the Merger Agreement and the
transactions contemplated thereby.
EMPLOYMENT AGREEMENTS AND SPECIAL TERMINATION AGREEMENTS
AmeriFed and AmeriFed Bank maintain employment agreements with Mr.
Breidert. In addition, AmeriFed Bank and AmeriFed also maintain special
termination agreements with each of the following executive officers: Robert
Biedron, Stephen G. Morrissette, Robert F. Maxwell, and John M. Luxem.
Employment Agreements. The employment agreements between AmeriFed and
AmeriFed Bank and Mr. Breidert provide for concurrent two-year terms.
Commencing on the first anniversary date and continuing each anniversary date
thereafter, the agreements extend for an additional year so that the remaining
terms shall be two years unless written notice is given by the AmeriFed Board
after conducting a performance review of the executive. The agreements provide
that the base salary of the executive will be reviewed by the Board annually.
In addition to the base salary, the agreements provide for, among other
things, disability pay, participation in stock benefit plans and other fringe
benefits applicable to executive personnel. The agreements provide for
termination by AmeriFed and AmeriFed Bank for cause at any time. In the event
AmeriFed and AmeriFed Bank elects to terminate the executive's employment for
reasons other than for cause, or in the event of the executive's resignation
from AmeriFed and AmeriFed Bank upon a (i) failure to re-elect the executive to
his current offices or nominate the executive for Board membership, (ii)
material change in the executive's functions, duties, or responsibilities, or
relocation of his principal place of employment, (iii) liquidation or
dissolution of AmeriFed and AmeriFed Bank, or (iv) material breach of the
agreement by AmeriFed and AmeriFed Bank, the executive will be entitled to
receive a severance payment equal to the greater of the remaining salary
payments due under the agreements or one year's compensation based upon the
highest salary level during the term of the agreements.
If termination, voluntary (as defined in the agreements) or involuntary,
results from a change in control of AmeriFed and AmeriFed Bank, the executive
or, in the event of death, his beneficiary, would be entitled to receive a
severance payment equal to three times his average compensation (base salary,
including bonus and other cash or other benefits paid) over the past three
years of employment with AmeriFed and AmeriFed Bank. AmeriFed and AmeriFed
Bank would also continue the executive's life, health, accident, dental and
disability coverage, and such coverage and payments shall cease upon the
expiration of 36 months. The consummation of the transactions contemplated by
the Merger Agreement will constitute a change in control for purposes of the
employment agreements.
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If a material change in Mr. Breidert's functions, duties or
responsibilities occurs, which change in his position would be the case
subsequent to the Merger, and Mr. Breidert terminates employment following the
change in control, Mr. Breidert will receive approximately $1,374,000 in
severance payments in addition to other non-cash benefits provided under the
Merger Agreement The Reorganization Agreement provides that NBD will honor Mr.
Breidert's agreement.
Special Termination Agreements. Each special termination agreement
provides for a three-year term. Commencing on the first anniversary date and
continuing on each anniversary thereafter, the agreements will be extended so
that the remaining term shall be three years. Each agreement provides that at
any time following a change in control of AmeriFed and AmeriFed Bank, if
AmeriFed and AmeriFed Bank (or their successors) terminates the executive's
employment for any reason other than cause, or if the executive terminates his
employment following his demotion, loss of title, office or significant
authority, a reduction in his compensation, or relocation of his principal
place of employment, the executive or, in the event of death, his beneficiary,
would be entitled to receive a severance payment equal to three times his
average compensation (base salary, including bonus and any other cash or other
benefits paid) over the past three years of his employment with AmeriFed Bank.
AmeriFed and AmeriFed Bank would also continue the executive's life, health,
accident, dental and disability coverage, and such coverage and payments shall
cease upon the expiration of 36 months. Payments to the executive under the
AmeriFed Bank agreements are guaranteed by AmeriFed in the event that payments
or benefits are not paid by the AmeriFed Bank. The consummation of the
transactions contemplated by the Merger Agreement will constitute a change in
control for purposes of these agreements.
If an executive officer leaves after the change in control and one of the
other factors described above occurs, based upon current compensation, Messrs.
Biedron, Morrissette, Maxwell or Luxem would receive severance payments of
approximately $927,000, $764,000, $724,000, and $571,000, respectively. The
Reorganization Agreement provides that NBD will honor these agreements.
Payments under the employment agreements and special termination
agreements in the event of a change in control may constitute an excess
parachute payment under Section 280G of the Internal Revenue Code of 1986, as
amended, (the "Code"), resulting in the imposition of an excise tax on the
recipient and denial of a deduction to AmeriFed generally for all amounts in
excess of three times the executive's average annual compensation for the five
tax years preceding the change in control. The agreements provide that
benefits payable to the executive under a change in control may be reduced to
an amount that would not constitute an excess parachute payment (as that term
is defined in Section 280G of the Code) if the reduced amount is greater than
the non-reduced amount less payment of any excise tax.
OPTION PLANS AND RECOGNITION AND RETENTION PLANS
AmeriFed maintains an incentive stock option plan, a director stock
option plan, and certain recognition and retention plans. Such plans provide
for an immediate acceleration of the vesting period for benefits payable under
the plans upon a change in control. The Merger will constitute a change in
control under such plans.
Additionally, pursuant to the terms of the Reorganization Agreement with
respect to officers and employees of AmeriFed or AmeriFed Bank who will remain
employed by NBD or any of its subsidiaries, each option granted by AmeriFed to
purchase shares of AmeriFed Common Stock which is outstanding and unexercised
immediately prior to the Effective Date of Merger shall be converted
automatically into an option to purchase, at an exercise price of $10.00 per
share, a number of shares of NBD Common Stock equal to a fraction, the
numerator of which shall be equal to $45.00 and the denominator of which shall
be equal to the average closing price per share of NBD Common Stock as reported
on the NYSE Composite Tape for five trading days ending on the fifth trading
day prior to the Effective Date of the Merger. With respect to directors of
AmeriFed or AmeriFed Bank as well as officers and employees of AmeriFed or
AmeriFed Bank holding options of AmeriFed whose service will terminate upon the
Merger, each option to purchase shares of AmeriFed Common Stock which is
outstanding and unexercised immediately prior to the Effective Date of Merger
shall be converted automatically into a number of shares of NBD Common Stock
equal to a fraction, the numerator of which shall be equal to $35.00 and the
denominator of which
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shall be equal to the average closing price per share of NBD Common Stock as
reported on the NYSE Composite Tape for five trading days ending on the fifth
trading day prior to the Effective Date of the Merger.
POST-MERGER COMPENSATION BENEFITS
The Reorganization Agreement provides that, after the Effective Date of
Merger, employees and officers of AmeriFed who become employees of NBD or its
subsidiaries shall be entitled to participate in NBD's pension, benefit and
similar plans on the same terms and conditions as employees and officers of
NBD, giving effect to years of service with AmeriFed as if such service were
with NBD.
The Reorganization Agreement provides that each employee who is
terminated will receive salary continuation payments under the terms of the
AmeriFed Severance Compensation Plan (the "Severance Plan"). Under the
Severance Plan, in the event a change in control of AmeriFed or AmeriFed Bank
occurs, participants in the Severance Plan who are terminated or terminate (as
determined under the Severance Plan) will be entitled to receive a severance
payment. If the participant whose employment has terminated has completed at
least five years of service, the participant will be entitled to a cash
severance payment equal to one-twelfth of the compensation paid during the 12
months preceding the participant's termination for each year of employment with
AmeriFed Bank, up to a maximum of 24 months of payments.
The Reorganization Agreement provides for the termination of the AmeriFed
ESOP whereby all accrued benefits shall be distributed to the accounts of
participants.
INDEMNIFICATION; INSURANCE
The Reorganization Agreement provides that NBD will indemnify the
directors and officers of AmeriFed and AmeriFed Bank against certain
liabilities following consummation of the Merger for a period of two (2) years
after the Merger. In addition, the Reorganization Agreement requires the
liability insurance maintained by NBD to be applicable to directors and
officers of AmeriFed and AmeriFed Bank during such period.
RESALES OF NBD COMMON STOCK
All shares of NBD Common Stock received by AmeriFed stockholders pursuant
to the Merger will be freely tradeable except that such shares received by
persons who are deemed to be "affiliates" of AmeriFed for the purposes of Rule
145 under the Securities Act may be resold by them only in transactions
permitted by such rule, or as otherwise permitted under the Securities Act. In
the Reorganization Agreement, AmeriFed has agreed to deliver to NBD a letter
identifying all persons who it deems to be "affiliates" for this purpose, and
each such person shall deliver to NBD, 30 days prior to the Effective Date of
Merger, a written agreement that such person shall not offer to sell or
otherwise dispose of any shares of NBD Common Stock issued to such person
pursuant to the Merger in violation of the Securities Act or the regulations
thereunder.
STOCK OPTION AGREEMENT
The following description of the Option Agreement is qualified in its
entirety by reference to the Option itself. A COPY OF THE OPTION AGREEMENT
WILL BE PROVIDED WITHOUT CHARGE TO ANY PERSON TO WHOM THIS PROXY
STATEMENT-PROSPECTUS IS DELIVERED UPON WRITTEN REQUEST TO ROBERT BIEDRON,
EXECUTIVE VICE PRESIDENT AND SECRETARY OF AMERIFED, OR DANIEL T. LIS, SENIOR
VICE PRESIDENT AND SECRETARY OF NBD, AT THEIR RESPECTIVE ADDRESSES.
At the time of execution of the Merger Agreements, AmeriFed and NBD
entered into a Stock Option Agreement dated as of March 23, 1994 pursuant to
which AmeriFed granted an option to NBD to purchase up to 610,578 shares of
AmeriFed Common Stock, or approximately 19.9% of the then outstanding shares,
at a price per share of $32.75 (the "Option"), exercisable only upon the
happening of certain events that in general would indicate that a third party
is attempting to acquire control of AmeriFed. The Option is exercisable only if
NBD has fully complied with the terms of the Merger Agreements at the time of
exercise. Depending on the number of shares purchased, the exercise of the
Option may be subject to the approval of requisite government regulatory
authorities.
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If the conditions to exercise of the Option have been met, the Option may
be exercised by NBD in whole or in part at any time prior to March 31, 1995,
provided that the Option may not be exercised at any time after termination of
the Merger Agreements. NBD has paid $1,000 as cash consideration for the
Option. In the event that NBD exercises the Option, the option fee of $1,000
shall be applied against the purchase price of the shares.
The Stock Option Agreement provides that NBD may exercise the Option only
if any of the following events has occurred: (i) the making, other than by NBD
or any of its subsidiaries, of a tender or exchange offer for 10% or more of
the shares of AmeriFed Common Stock and the persons making such offer have made
the required filings with the Commission and received regulatory approvals from
the proper regulatory authorities; (ii) the acquisition by any person or group
of persons, other than by NBD or any of its subsidiaries, of beneficial
ownership, as defined by the Securities Exchange Act of 1934, as amended, of
10% or more of the outstanding shares of AmeriFed Common Stock; or (iii) the
acceptance by AmeriFed of any firm proposal, however conditional or future, by
any person, other than NBD or any of its subsidiaries, to: (a) acquire AmeriFed
(or any of its banking subsidiaries) by merger, consolidation, purchase of all
or substantially all of AmeriFed's or such subsidiary's assets or other similar
transaction, or (b) make a tender or exchange offer described in (i) above.
The Option provides that in the event the Option is exercised by NBD and
the Merger Agreements are terminated by reason of mutual agreement of the
parties or material breach by NBD, AmeriFed shall have the right to purchase
for cash all of the option shares, provided AmeriFed gives NBD written notice
of its intention to purchase such shares within seven business days after
termination of the Merger Agreements. Further, regardless of the reason for the
termination of the Merger Agreements, if the option shares have been purchased
by NBD after an event set forth in (i) or (iii) of the above paragraph has
occurred, and subsequently the tender or exchange offer or proposal
contemplated thereby is terminated, then AmeriFed shall have the right at the
end of six months after such termination and within seven business days
thereafter to repurchase all of the option shares from NBD. Further, regardless
of the reason for the termination of the Merger Agreements, if the option
shares have been purchased by NBD after an event set forth in (ii) of the above
paragraph has occurred, and subsequently a tender or exchange offer or other
proposal to acquire AmeriFed is not consummated by the acquiring persons within
six months after such purchase, then AmeriFed shall have the right at the end
of six months thereafter and within seven business days thereof to repurchase
all of the option shares from NBD. The purchase price for such shares shall be
that paid by NBD for its purchase of such shares plus interest at the rate
equal to the rate publicly announced by NBD Bank, N.A. (Michigan) from time to
time as the "Prime Rate" from the date of purchase to the date of repurchase.
APPRAISAL RIGHTS
Pursuant to 262(b) of the Delaware General Corporations Law, stockholders
of Delaware corporations do not have the right to object and obtain payment of
the fair value of their shares in business combination transactions if, on the
record date fixed to determine the stockholders entitled to receive notice of
and vote at the meeting at which the corporate action is to be taken, such
shares are registered on a United States securities exchange registered under
the Securities Exchange Act of 1934 or traded on Nasdaq National Market or a
similar market. AmeriFed Common Stock was traded on Nasdaq National Market on
the Record Date, and therefore appraisal rights will not be available with
respect to the Merger and AmeriFed stockholders are not entitled to appraisal
rights in connection with the Merger because NBD Common Stock to be issued in
the Merger will be listed on NYSE.
CERTAIN FEDERAL INCOME TAX CONSEQUENCES OF THE MERGER
The following is a discussion of certain federal income tax consequences
of the Merger and the Subsidiary Bank Merger to AmeriFed, AmeriFed Bank and
holders of AmeriFed Common Stock. The discussion is based upon the Code,
Treasury Regulations, Internal Revenue Service (the "Service") rulings, and
judicial and administrative decisions in effect as of the date hereof, all of
which are subject to change at any time, possibly with retroactive effect.
This discussion assumes that AmeriFed Common Stock is held as a "capital asset"
within the
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meaning of Section 1221 of the Code (i.e., property generally held for
investment). This discussion does not address all of the tax consequences that
may be relevant to a holder of AmeriFed Common Stock in light of his or her
particular circumstances or to holders subject to special rules, such as
foreign persons, financial institutions, tax-exempt organizations or insurance
companies. The opinions of such counsel referred to in this section will be
based on facts existing at the Effective Date of Merger, and in rendering such
opinions, such counsel will require and rely upon representations contained in
certificates of officers of AmeriFed, AmeriFed Bank, as well as NBD Illinois
and others.
HOLDERS OF AMERIFED COMMON STOCK SHOULD CONSULT THEIR TAX ADVISORS AS TO THE
PARTICULAR TAX CONSEQUENCES TO THEM OF THE MERGER, INCLUDING THE APPLICABILITY
AND EFFECT OF ANY FEDERAL, STATE, LOCAL AND FOREIGN INCOME AND OTHER TAX LAWS.
It is a condition to the obligation of NBD Illinois to consummate the
Merger that AmeriFed shall have received an opinion from Muldoon, Murphy &
Faucette, counsel to AmeriFed, substantially to the effect that the Merger will
be treated as a reorganization within the meaning of Section 368(a) of the Code
and, accordingly, for federal income tax purposes, no gain or loss will be
recognized by AmeriFed or AmeriFed Bank as a result of the Merger except, with
respect to the Subsidiary Bank Merger, to the extent AmeriFed or AmeriFed Bank
is required to recognize taxable income due to the recapture of AmeriFed Bank's
bad debt reserves. Additionally, no gain or loss will be recognized by holders
of AmeriFed Common Stock except with respect to any cash received in lieu of
fractional shares. More specifically, AmeriFed shall have received an opinion
of Muldoon, Murphy & Faucette with respect to the Merger that, for federal
income tax purposes:
(i) Assuming that the Merger transaction constitutes a merger under
the applicable state or federal law, the merger of AmeriFed with
and into NBD Illinois will constitute a reorganization within the
meaning of Section 368(a)(1)(A) and Section 368(a)(2)(D) of the
Code, and AmeriFed, NBD Illinois and NBD will each be a "party to
a reorganization" within the meaning of Section 368(b) of the
Code.
(ii) The basis of the assets of AmeriFed to be received by NBD Illinois
will be the same as the basis of those assets in the hands of
AmeriFed immediately prior to the Merger.
(iii) The holding period of the assets of AmeriFed to be received by NBD
Illinois will include the holding period of those assets in the
hands of AmeriFed immediately prior to the Merger.
(iv) No gain or loss will be recognized by NBD Illinois and NBD upon
receipt of the assets of AmeriFed by NBD Illinois in exchange for
the consideration provided for in the Merger Agreement and the
assumption by NBD Illinois of the liabilities of AmeriFed.
(v) NBD Illinois will succeed to and take into account the items of
AmeriFed described in Section 381(c) of the Code and NBD Illinois
will be the "acquiring corporation" within the meaning of Section
1.381(a)-1(b)(2) of the Treasury Regulations. These items will
be taken into account by NBD Illinois subject to the conditions
and limitations specified in Sections 381, 382 and 383 of the Code
and the Treasury Regulations thereunder.
(vi) No gain or loss will be recognized by AmeriFed upon the transfer
of its assets to NBD Illinois in exchange for the consideration
provided for in the Merger Agreement and the assumption by NBD
Illinois of the liabilities of AmeriFed.
(vii) No gain or loss will be recognized by the shareholders of AmeriFed
who receive shares of NBD Common Stock in exchange for all of
their shares of AmeriFed Common Stock, except to the extent of any
cash received in lieu of a fractional share of NBD Common Stock.
(viii) The basis of NBD Common Stock to be received by shareholders of
AmeriFed will, in each instance, be the same as the basis of the
shares of AmeriFed Common Stock surrendered in exchange therefor.
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(ix) The holding period of the NBD Common Stock received by
shareholders of AmeriFed will, in each instance, include the
holding period of the shares of AmeriFed Common Stock surrendered
in exchange therefor, provided that AmeriFed Common Stock was, in
each instance, held as a capital asset in the hands of the
shareholder of AmeriFed on the Effective Date of Merger.
(x) The payments of cash in lieu of fractional share interests of NBD
Common Stock will be treated as having been received as
distributions in full payment in exchange for the stock redeemed
as provided in Section 302(a) of the Code.
Based upon the current ruling position of the Service, cash received by a
holder of AmeriFed Common Stock in lieu of a fractional share interest in NBD
Common Stock will be treated as received in exchange for such fractional share
interest, and gain or loss will be recognized for federal income tax purposes
measured by the difference between the amount of cash received and the portion
of the basis of the share of AmeriFed Common Stock allocable to such fractional
share interest. Such gain or loss should be long-term capital gain or loss if
such share of AmeriFed Common Stock has been held for more than one year at the
Effective Date of Merger.
Ordinary income, in an amount equal to the fair market value of NBD
Common Stock received, will be realized by holders of Options, whether
incentive stock options or non-qualified stock options, who receive NBD Common
Stock in exchange for their Options. The basis of the NBD Common Stock
received by holders of Options will be equal to the amount of ordinary income
recognized and the holding period will begin on the exchange date.
Pursuant to the Subsidiary Bank Merger Agreement, AmeriFed Bank will be
merged with and into NBD Bank and, consequently, will no longer be entitled to
use the reserve method for computing and deducting its losses for bad debts.
In addition, as a result of the Subsidiary Bank Merger, the entire amount of
AmeriFed Bank's bad debt reserve, which is currently approximately $__________,
will be required to be included in income currently, or possibly spread over a
period of years.
STOCK EXCHANGE LISTING
The NBD Common Stock is listed on the NYSE. NBD has agreed to cause the
shares of the NBD Common Stock to be issued in the Merger to be approved for
listing on the NYSE, subject to official notice of issuance, prior to or at the
Effective Date of Merger. The obligations of the parties to consummate the
Merger are subject to approval for listing by the NYSE of such shares. See
"PROPOSED MERGER -- Conditions to the Merger."
ACCOUNTING TREATMENT
The Merger will be accounted for as a purchase and certain adjustments
will have to be made with respect to the acquired assets and liabilities of
AmeriFed based upon estimated fair market values. The actual adjustments will
be made on the basis of appraisals and evaluations as of the date of
consummation of the Merger.
DESCRIPTION OF NBD CAPITAL STOCK
GENERAL
Under the Restated Certificate of Incorporation, as amended (the "NBD
Certificate"), of NBD, its authorized capital stock consists of 10,000,000
shares of Preferred Stock, without par value, and 500,000,000 shares of Common
Stock with a par value of $1.00 per share. At _____________, 1994, no shares of
Preferred Stock were outstanding and ______________ shares of Common Stock were
outstanding. In addition, the NBD Certificate authorizes the issuance of
460,000 shares of Series A Preferred Stock, all of which were issued in 1987
and redeemed in 1988.
The NBD Certificate contains specific provisions with respect to the
election of directors, which include the provision that the Board of Directors
is divided into three classes, each having a number of directors as nearly
equal
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as possible, and each class being elected for a three-year term, with one class
being elected each year. The NBD Certificate also includes specific provisions
with respect to mergers and other business combinations. In general, these
provisions require that in the case of a proposed merger or other business
combination involving NBD and an interested stockholder (in general defined as
one owning 10% or more of the voting power of the then outstanding NBD capital
stock) the approving vote of the holders of at least a majority of the voting
power of all the shares of voting stock held by persons who are not interested
stockholders or persons affiliated with interested stockholders is required
unless the business combination has been approved by a majority of directors
not affiliated with the interested stockholder or unless certain conditions
regarding minimum price and procedural protections are met with respect to each
class of NBD's then outstanding voting stock. They also require that the NBD
Board of Directors shall not approve a proposal for a business combination or a
tender offer until the Board has evaluated the proposal in light of its effect
on the stockholders and employees of NBD and the communities served by NBD.
These provisions of the NBD Certificate could be used to make more difficult a
change in control of NBD.
PREFERRED STOCK
The Board of Directors of NBD is authorized, without further action by
the stockholders of NBD, to issue Preferred Stock, without par value, in one or
more series, from time to time, with such voting powers, full or limited but
not to exceed one vote per share, or without voting powers, and with such
designations, preferences and relative, participating, optional or other
special rights, and qualifications, limitations and restrictions thereof, as
may be provided in a resolution or resolutions adopted by the Board of
Directors. The authority of the Board of Directors includes, but is not limited
to, the determination or fixing of the following with respect to shares of such
class or any series thereof: (i) the number of shares and designation; (ii) the
dividend rate and whether dividends are to be cumulative; (iii) whether shares
are to be redeemable and, if so, the terms and amount of any sinking fund
providing for the purchase or redemption of such shares; (iv) whether shares
shall be convertible and, if so, the terms and provisions applying; (v) what
voting rights are to apply, if any, not to exceed one vote per share; and (vi)
what restrictions are to apply, if any, on the issue or reissue of any
additional Preferred Stock. No Preferred Stock of this class has been issued.
If Preferred Stock of the class were to be issued, it would be preferred to the
Common Stock with respect to dividends and other matters and might have the
effect of making more difficult any change in control of NBD.
On May 11, 1993 NBD issued 6,000,000 Units of which each 7 1/2% Preferred
Purchase Unit consisted of a 30-year subordinated debenture and a purchase
contract requiring the purchase on May 10, 2023 (or earlier at NBD's election)
of NBD 7 1/2% Cumulative Preferred Stock (the "7 1/2% Preferred") at a purchase
price of $25 per share. NBD may redeem any or all of the Units anytime after
May 10, 1998, at par, and as a result some or all of the 7 1/2% Preferred may
not be issued by NBD. The 7 1/2% Preferred would rank prior to the NBD Common
Stock, but would have no voting rights except if the Units were in default or
the NBD Certificate was proposed to be amended in a manner adverse to the 7
1/2% Preferred stockholder. The Preferred Stock which could be issued pursuant
to the purchase contract has been reserved by NBD on its stock records.
COMMON STOCK
DIVIDEND RIGHTS
Subject to any prior rights of the Preferred Stock then outstanding,
holders of NBD's Common Stock are entitled to receive such dividends as are
declared by its Board of Directors out of funds legally available therefor.
VOTING RIGHTS -- NON-CUMULATIVE VOTING
Subject to the voting rights, if any, of the Preferred Stock, all voting
rights are vested in the holders of shares of Common Stock, each share being
entitled to one vote.
The shares of Common Stock have non-cumulative voting rights, which means
that the holders of more than 50% of the shares of Common Stock voting for the
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election of directors can elect 100% of the directors standing for election at
any meeting if they choose to do so and, in such event, the holders of the
remaining shares voting for the election of directors will not be able to elect
any person or persons to the Board of Directors at that meeting.
LIQUIDATION RIGHTS
Subject to the rights of the Preferred Stock, in the event of
liquidation, the holders of the Common Stock will be entitled to receive pro
rata any assets distributable to stockholders in respect of shares held by
them.
PREEMPTIVE RIGHTS
Holders of Common Stock do not have any right to subscribe to any
additional securities which may be issued by NBD. Accordingly, holders of NBD
Common Stock have no statutory right to purchase a proportionate share of any
new Common Stock or other securities issued by NBD.
OTHER MATTERS
The Common Stock does not have any redemption provisions applicable
thereto, and all outstanding shares are fully paid and non- assessable.
COMPARATIVE RIGHTS OF HOLDERS OF CAPITAL STOCK
OF AMERIFED AND NBD
The rights of holders of shares of AmeriFed Common Stock are governed by
AmeriFed's Certificate of Incorporation, By-laws and Delaware law, while the
rights of holders of shares of NBD Common Stock are governed by the NBD
Certificate, NBD's By-Laws and Delaware law. In some respects the rights of
holders of AmeriFed Common Stock and NBD Common Stock are similar. For example,
each holder is entitled to one vote for each share held (although AmeriFed has
a 10% voting limitation as discussed below); each is entitled to receive pro
rata any assets distributed to holders of common stock upon liquidation; and
each is subject to the rights of any preferred stock, when issued. Neither has
any preemptive rights to subscribe for or purchase additional shares or
cumulative voting rights in the election of directors.
There are, however, some differences between the rights of holders of
AmeriFed Common Stock and holders of NBD Common Stock. A summary of these
differences is set forth below. This summary, however, does not purport to be
complete and is qualified in its entirety by reference to the respective
Certificate of Incorporation and By-Laws of NBD and AmeriFed and the applicable
provisions of Delaware law.
ANTI-TAKEOVER AND SUPERMAJORITY PROVISIONS
Delaware law contains an anti-takeover provision that prevents buyers who
acquire 15% or more of a target company's stock from completing a hostile
takeover for three years. A takeover can, however, be completed if the buyer,
while acquiring this 15% interest, manages to acquire at least 85% of the
outstanding stock. The 85% excludes shares owned by directors who are also
officers and certain shares held under certain employee stock plans. The
takeover can also be completed if it is approved by the target company's board
of directors prior to the date the buyer became a 15% or more stockholder or
after the date the buyer became a 15% or more stockholder if it is approved by
the target company's board of directors and two-thirds of the shares voting at
an annual or special meeting of stockholders, excluding shares held by the
buyer. The anti-takeover provision applies automatically to Delaware
corporations except those corporations with less than 2,000 stockholders of
record or those that do not have voting stock listed on a national securities
exchange or listed for quotation with a registered national securities
association. Such a corporation may, if it wishes, "opt in" by amending its
certificate of incorporation to adopt the provision. Any corporation may decide
to "opt out" of the statute at any time, by action of its stockholders.
Under AmeriFed's Certificate, an affirmative vote of 80% of the then
outstanding shares of stock of AmeriFed entitled to vote in the election of
directors ("AmeriFed Voting Stock") is required to approve certain business
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combination transactions with a beneficial owner of 10% or more of the AmeriFed
Voting Stock when the combination has not been approved by AmeriFed's Board.
The NBD Certificate also contains specific provisions with respect to
mergers and other business combinations. See "DESCRIPTION OF NBD CAPITAL STOCK
- -- General."
CAPITALIZATION
AmeriFed is authorized to issue 6,000,000 shares of AmeriFed Common
Stock, $.01 par value. At _______________, 1994, there were _________ shares
of AmeriFed Common Stock outstanding, held of record by ______ holders.
AmeriFed is authorized to issue 1,500,000 shares of preferred stock, $.01
par value ("AmeriFed Preferred Stock"). The AmeriFed Board is authorized to
provide for the issuance of AmeriFed Preferred Stock in series, to establish
from time to time the number of shares to be included in each such series, and
to fix the designation, powers, preferences and rights of the shares of each
such series and any qualifications, limitations, or restrictions thereof.
There are currently no shares of AmeriFed Preferred Stock outstanding.
For a discussion of the capitalization of NBD, see "DESCRIPTION OF NBD
CAPITAL STOCK" above.
BOARD OF DIRECTORS
Both the AmeriFed Certificate and NBD Certificate provide for a
classified Board of Directors. The classification of Directors could be used
to make it more difficult to change the membership of the Board of Directors
since at least two annual stockholder meetings would be required to effect a
change in a majority of the directors. See "DESCRIPTION OF NBD CAPITAL STOCK
- -- General".
Under the NBD Certificate, NBD's directors may only be removed for cause
and only by a majority vote of stockholders. The AmeriFed Certificate provides
that directors may only be removed for cause and only by the affirmative vote
of holders of not less than 80 percent of the outstanding shares of capital
stock of AmeriFed entitled to vote generally in the election of directors.
Both the AmeriFed By-laws and NBD Certificate contain procedures for
nominations by stockholders of candidates for election as a director. Notices
containing prescribed information on nominations by stockholders of candidates
for election as a director of NBD must be appropriately delivered at least 60
days but not more than 90 days prior to the anniversary date of the immediately
preceding NBD annual meeting of stockholders. The specified written notice for
nominations by stockholders of candidates for an AmeriFed director must be
appropriately delivered generally not less than 90 days prior to the date of
the annual meeting; provided, however, in the event that less than 100 days
notice or prior public disclosure of the date of the meeting is given or made
to stockholders, notice by the stockholders must be received not later than the
close of business on the 10th day following the day on which such notice of the
date of the annual meeting was mailed or such public disclosure was made.
ACTION BY STOCKHOLDERS
Both the AmeriFed Certificate and NBD Certificate prohibit stockholder
action by written consent and require that any stockholder action be taken at a
meeting of stockholders. Also, under the Amerifed Certificate and NBD
Certificate, stockholders are not permitted to call a special meeting of
stockholders.
VOTING LIMITATION
The AmeriFed Certificate contains a provision limiting the voting rights
of any person who beneficially owns more than 10% of the then- outstanding
shares of AmeriFed Common Stock (the "Limit"). A person who beneficially owns
Common Stock in excess of the limit shall not be entitled, or permitted to any
vote in respect of the shares held in excess of the Limit. The number of votes
which may be cast by any record owner of AmeriFed Common Stock in excess of the
Limit shall be a number equal to the total number of votes which a single
record owner of all AmeriFed Common Stock owned by such person would be
entitled to cast, multiplied
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by a fraction, the numerator of which is the number of shares of such class or
series beneficially owned by such person and owned of record by such record
owner and the denominator of which is the total number of shares of AmeriFed
Common Stock beneficially owned by such person owning shares in excess of the
Limit. The AmeriFed Certificate authorizes the Board of Directors (i) to make
all determinations necessary to implement and apply the Limit, including
determining whether persons or entities are acting in concert, and (ii) to
determine that a person who is reasonably believed to beneficially own stock in
excess of the Limit, be required to supply information to AmeriFed to enable
the Board of Directors to implement and apply the Limit.
There is no comparable limitation in NBD's Certificate or Bylaws.
AMENDMENT OR REPEAL OF CERTAIN PROVISIONS
The provisions of AmeriFed's Certificate described herein may be amended
only by the affirmative vote of at least 80 percent of the outstanding shares
entitled to vote on the proposed amendment. The AmeriFed By-laws may be
amended by a majority of the AmeriFed Board and by the affirmative vote of at
least 80 percent of the outstanding shares entitled to vote generally in the
election of directors.
NBD's Certificate contains similar stockholder vote for the amendment of
the provisions discussed under "-- Board of Directors, Action by Stockholders"
and "DESCRIPTION OF NBD CAPITAL STOCK -- General." NBD By-laws, however, may
be amended by a majority of the NBD Board.
RELATIONSHIP WITH INDEPENDENT AUDITORS
Deloitte & Touche LLP is currently serving as the independent auditors
for each of NBD and AmeriFed. It is expected that a representative of Deloitte
& Touche LLP will be present at the Special Meeting of Stockholders to respond
to appropriate questions and such representative will have an opportunity to
make a statement if he or she so desires.
EXPERTS
The consolidated financial statements of NBD incorporated in this Proxy
Statement-Prospectus by reference from the Corporation's Annual Report on Form
10-K for the year ended December 31, 1993, have been audited by Deloitte &
Touche LLP, as stated in their report, which is incorporated herein by
reference. The consolidated financial statements give retroactive effect to
the mergers of NBD and Summcorp, and of NBD and INB Financial Corporation, each
of which has been accounted for as a pooling of interests. Deloitte & Touche
LLP did not audit the statements of income, stockholders' equity, and cash
flows of Summcorp and INB Financial Corporation for the year ended December 31,
1991. Those financial statements have been audited by KPMG Peat Marwick LLP
and Ernst & Young LLP, respectively, as stated in their reports incorporated
herein by reference. The report of Deloitte & Touche LLP, insofar as it
relates to the amounts included for Summcorp and INB Financial Corporation for
1991, is based solely on the reports of such other auditors. Such consolidated
financial statements of NBD are incorporated herein by reference in reliance
upon the reports of such firms given upon their authority as experts in
accounting and auditing. All of the foregoing firms are independent auditors.
The consolidated financial statements of AmeriFed incorporated in this
Proxy Statement-Prospectus by reference from the Corporation's Annual Report on
Form 10-K for the year ended September 30, 1993, have been audited by Deloitte
& Touche LLP, as stated in their report, which is incorporated herein by
reference, and have been so incorporated in reliance upon the report of such
firm given upon their authority as experts in accounting and auditing.
LEGAL MATTERS
Legal matters in connection with the Merger will be passed upon for NBD
by Daniel T. Lis, internal legal counsel to NBD. Mr. Lis is a Senior Vice
President and Secretary of NBD, and is also a stockholder of NBD and a holder
of options to purchase shares of NBD. Legal matters in connection with the
Merger will be passed upon for AmeriFed by Muldoon, Murphy & Faucette,
Washington, D.C.,
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including an opinion concerning certain federal income tax consequences of the
Merger.
OTHER MATTERS
The AmeriFed Board of Directors, as of 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 of Stockholders and discussed herein. If
any matters should properly come before the Special Meeting, the persons named
as proxies will have authority to vote the shares represented by proxies in
accordance with their discretion and judgment as to the best interests of
AmeriFed.
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APPENDIX A
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER, dated as of March 23, 1994 by and
between NBD Illinois, Inc., a Delaware corporation ("Bancorp Subsidiary"), and
AmeriFed Financial Corp., a Delaware corporation (the "Company"), joined in by
NBD Bancorp, Inc., a Delaware corporation ("Bancorp"). Bancorp Subsidiary and
the Company are hereinafter sometimes collectively referred to as the
"Constituent Corporations". Bancorp is a party to this Agreement and Plan of
Merger as a parent corporation and not as a constituent corporation.
WITNESSETH:
WHEREAS, Bancorp Subsidiary is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware. As of
the date hereof, the authorized capital stock of Bancorp Subsidiary consists of
10,000 shares of Common Stock, $1.00 par value, of which 1,000 shares are
issued and outstanding and owned by Bancorp;
WHEREAS, the Company is a corporation duly organized and validly existing
under the laws of the State of Delaware. As of the date hereof, the authorized
capital stock of the Company consists of: 6,000,000 shares of Common Stock,
$.01 par value (the "Company Common Stock"), of which as of March 22, 1994,
3,068,231 shares of Company Common Stock were issued and outstanding, 205,795
shares of Company Common Stock are reserved for issuance under outstanding
stock options, and 161,000 shares of Company Common Stock are held in its
treasury; and 1,500,000 shares of Preferred Stock, $.01 par value, of which no
shares are issued and outstanding or held in treasury;
WHEREAS, Bancorp Subsidiary, the Company and Bancorp have entered into an
Agreement and Plan of Reorganization dated as of the date hereof (the
"Reorganization Agreement"), setting forth certain representations, warranties
and agreements in connection with the transactions therein and herein
contemplated and which contemplates the merger of the Company with and into
Bancorp Subsidiary (the "Merger") in accordance with this Agreement and Plan of
Merger (the "Merger Agreement");
WHEREAS, Bancorp has undertaken to authorize the issuance of shares of
its Common Stock (the "Bancorp Common Stock") for the purposes of this Merger
Agreement;
WHEREAS, the respective Boards of Directors of the Company, Bancorp and
Bancorp Subsidiary deem the Merger advisable and in the best interests of each
such corporation and their respective stockholders. The respective Boards of
Directors of Bancorp Subsidiary and the Company, by resolutions duly adopted,
have adopted and approved the Reorganization Agreement and this Merger
Agreement and the Boards of Directors of the Company and Bancorp Subsidiary
have directed that this Merger Agreement be submitted to their respective
stockholders for adoption and approval;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements herein contained, the parties hereto hereby covenant and agree
as follows:
ARTICLE I
1.1 Merger of the Company into Bancorp Subsidiary. The Company shall
be merged into Bancorp Subsidiary on the date specified therefor in a
Certificate of Merger filed by Bancorp Subsidiary in accordance with the
General Corporation Law of the State of Delaware (the close of business on the
date so specified being referred to herein as the "Effective Date of Merger").
The separate corporate existence of the Company shall thereupon cease and
Bancorp Subsidiary shall be the surviving corporation. Bancorp Subsidiary is
herein sometimes referred to as the "Surviving Corporation".
1.2 Effect of the Merger. From and after the Effective Date of Merger:
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(a) The separate existence of the Constituent Corporations (except
the Surviving Corporation) shall cease and be merged into one, the
Surviving Corporation, which shall possess all of the rights,
privileges, immunities, powers and franchises of a public as well as
of a private nature, and shall be subject to all of the restrictions,
disabilities and duties, of each of the Constituent Corporations so
merged; and all and singular rights, privileges, immunities, powers
and franchises of each of the Constituent Corporations, and all
property, real, personal and mixed, and all debts due to either of
the Constituent Corporations on whatever account, including
subscriptions to shares, and all other things in action or belonging
to each of the Constituent Corporations shall be vested in the
Surviving Corporation resulting from the Merger; and all property,
rights, privileges, immunities, powers and franchises, and all and
every interest, shall be thereafter as effectually the property of
the Surviving Corporation as they were of the Constituent
Corporations and the title to any real estate, vested by deed or
otherwise, in either of the Constituent Corporations, shall not
revert or be in any way impaired by reason of the Merger.
(b) All rights of creditors and all liens upon any property of
either of the Constituent Corporations shall be preserved unimpaired
and all debts, liabilities and duties of the respective Constituent
Corporations shall thenceforth attach to the Surviving Corporation
and may be enforced against the Surviving Corporation to the same
extent as if said debts, liabilities and duties had been incurred or
contracted by it.
(c) Any action or proceeding, whether civil, criminal or
administrative, pending by or against either Constituent Corporation
shall be prosecuted as if the Merger had not taken place, or the
Surviving Corporation may be substituted as a party in such action or
proceeding in place of the Constituent Corporation.
1.3 Additional Actions. If, at any time after the Effective Date of
Merger, the Surviving Corporation shall consider or be advised that any further
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 rights, title or interest in, to or under any of the rights,
properties or assets of the Company acquired or to be acquired by the Surviving
Corporation as a result of, or in connection with, the Merger, or (b) otherwise
carry out the purposes of this Merger Agreement, the Company and its proper
officers and directors shall be deemed to have granted to the Surviving
Corporation an irrevocable power of attorney to execute and deliver all such
proper deeds, assignments and 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 Merger Agreement; and the proper officers and directors of
the Surviving Corporation are fully authorized in the name of the Company or
otherwise to take any and all such action.
ARTICLE II
2.1 Name. The name of the Surviving Corporation shall be NBD
Illinois, Inc.
2.2 Certificate of Incorporation. From and after the Effective Date
of Merger, the Certificate of Incorporation of Bancorp Subsidiary shall be the
Certificate of Incorporation of the Surviving Corporation until duly amended in
accordance with law.
2.3 Bylaws. The Bylaws of Bancorp Subsidiary, as in effect
immediately prior to the Effective Date of Merger, shall be the Bylaws of the
Surviving Corporation until duly amended in accordance with law.
2.4 Directors and Officers. The directors and officers of the
Surviving Corporation shall be the directors and officers of Bancorp
Subsidiary immediately prior to the Effective Date of Merger.
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ARTICLE III
3.1 Manner and Basis of Converting Shares. At the Effective Date of
Merger:
(a) Each share of Bancorp Common Stock and of Bancorp Subsidiary
Common Stock which is issued and outstanding immediately prior to the
Effective Date of Merger shall continue to be outstanding without any
change therein.
(b) All shares of Company Common Stock held in the treasury of the
Company and all shares of Company Common Stock held by Bancorp or
Bancorp Subsidiary immediately prior to the Effective Date of Merger
shall be cancelled, and no Bancorp Common Stock, cash or other
consideration shall be issuable or exchangeable with respect thereto.
(c) To the extent that there may exist rights of appraisal with
respect to the Merger, each outstanding share of Company Common Stock
as to which appraisal is demanded in accordance with the procedures
of the General Corporation Law of the State of Delaware prior to the
vote of the Company's stockholders on the Merger and not withdrawn
shall be accorded the rights provided by such Law and shall not be
converted into or represent a right to receive shares of Bancorp
Common Stock hereunder unless and until the holder shall have failed
to perfect or shall have effectively withdrawn or lost his or her
right to appraisal of and payment for his or her shares of Company
Common Stock.
(d) Subject to sub-paragraphs (b) and (c) preceding, each share of
Company Common Stock which is outstanding immediately prior to the
Effective Date of Merger shall be converted without any action on the
part of the holder thereof into and be exchangeable for the number of
shares of Bancorp Common Stock (rounded to the nearest thousandth of
a share) equal to a fraction, the numerator of which shall be equal
to $45.00, and the denominator of which shall be equal to the average
closing price per share of Bancorp Common Stock as reported on the
New York Stock Exchange Composite Tape for the five trading days
ending on the fifth trading day prior to the Effective Date of
Merger, subject to the payment of cash in lieu of fractional shares
in accordance with Section 3.4 hereof.
The shares of Bancorp Common Stock to be issued in accordance with this Merger
Agreement may be authorized but unissued shares or treasury shares; provided
that Bancorp may not purchase any shares of its Common Stock in the 30-day
period prior to the Effective Date of Merger; and provided further that
repurchases of Common Stock by Bancorp shall comply with the rules and
regulations of the Securities and Exchange Commission, the New York Stock
Exchange and all applicable regulatory authorities.
3.2 Cessation of Stockholder Status. Holders of certificates which
represent shares of Company Common Stock outstanding immediately prior to the
Effective Date of Merger (hereinafter called "Old Certificates" when referring
to the Company) shall cease to be, and shall have no rights as, stockholders of
the Company.
3.3 Surrender of Old Certificates. After the Effective Date of
Merger, Old Certificates shall be exchangeable, subject to Section 3.4 hereof,
by the holders thereof in the manner provided in the transmittal materials
described below for new certificates for the number of shares of Bancorp Common
Stock to which such holders shall be entitled.
As promptly as practicable after the completion of all requisite actions
and the receipt of the final banking authority regulatory approval required for
the Merger, Bancorp shall send or cause to be sent to each former stockholder
of record of Company Common Stock transmittal materials for use in exchanging
his or her Old Certificates for certificates representing Bancorp Common Stock.
The letter of transmittal will contain instructions with respect to the
surrender of Old Certificates.
Whenever a dividend is declared by Bancorp on the Bancorp Common Stock
after the Effective Date of Merger, the declaration shall include dividends on
all shares issuable hereunder, but no former stockholder of the Company will be
A-3
<PAGE> 43
deemed to be a record owner nor be entitled to receive his or her distribution
of such dividends until physical exchange of his or her Old Certificates shall
have been effected. Upon physical exchange of his or her Old Certificates, any
such person shall be entitled to receive from Bancorp an amount equal to all
such dividends (without interest thereon and less the amount of taxes, if any,
which may have been imposed or paid thereon) declared, and for which the
payment has occurred, on the shares represented thereby.
On or after the Effective Date of Merger there shall be no transfers on
the stock transfer books of the Company or Bancorp of the shares of Company
Common Stock which were issued and outstanding immediately prior to the
Effective Date of Merger. If, after the Effective Date of Merger, Old
Certificates are properly presented to Bancorp, they shall be cancelled and
exchanged for certificates representing shares of Bancorp Common Stock as
herein provided.
3.4 Cash in lieu of Fractional Shares. Each holder of Old
Certificates who would otherwise have been entitled to receive a fraction of a
share of Bancorp Common Stock (after taking into account all shares of the
Company Common Stock represented by the Old Certificates then delivered by such
holder) shall receive, in lieu thereof, an amount of cash (without interest)
determined by multiplying such fraction by the average closing price per share
of Bancorp Common Stock as reported on the New York Stock Exchange Composite
Tape for the five trading days ending on the fifth trading day prior to the
Effective Date of Merger.
3.5 Adjustments. If, between the date of this Merger Agreement and
the Effective Date of Merger, the outstanding shares of Bancorp Common Stock or
Company Common Stock shall have been changed into a different number of shares
or a different class by reason of any reclassification, recapitalization,
reverse split, split-up, combination, exchange of shares or readjustment, or a
stock dividend thereon shall be declared with a record date within said period,
the number of shares of Bancorp Common Stock into which shares of Company
Common Stock are to be converted shall be correspondingly adjusted.
ARTICLE IV
4.1 Counterparts. This Merger Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original but all of
which together shall constitute one agreement.
4.2 Governing Law. This Merger Agreement shall be governed in all
respects, including, but not limited to, validity, interpretation, effect and
performance, by the laws of the State of Delaware.
4.3 Amendment. Subject to applicable law, this Merger Agreement may
be amended, modified or supplemented only by written agreement of Bancorp,
Bancorp Subsidiary and the Company, by their respective officers thereunto duly
authorized by the Boards of Directors of the respective parties, at any time
prior to the Effective Date of Merger; provided, however, that, after the
adoption of this Merger Agreement by the stockholders of the Company and
Bancorp Subsidiary, no such amendment, modification or supplement shall (i)
alter or change the amount or kind of consideration to be received in exchange
for or on conversion of all or any of the shares of any class or series thereof
of the Company or (ii) alter or change any of the terms and conditions of this
Merger Agreement if such alteration or change would adversely affect the
holders of any class or series of capital stock of the Company.
4.4 Waiver. Subject to applicable provisions of the General
Corporation Law of the State of Delaware, any of the terms or conditions of
this Merger Agreement may be waived at any time by whichever of the Constituent
Corporations is, or the stockholders of which are, entitled to the benefit
thereof by action taken by the Board of Directors of such Constituent
Corporation.
4.5 Termination. This Merger Agreement shall terminate upon the
termination of the Reorganization Agreement and there shall be no liability
hereunder on the part of any of the parties hereto (or any of their respective
directors or officers).
A-4
<PAGE> 44
4.6 Assignment. The parties hereby agree that the rights and duties
of Bancorp Subsidiary hereunder may be assigned and delegated to a newly formed
wholly-owned subsidiary of Bancorp or to Bancorp itself at any time if Bancorp
determines in its sole discretion that such assignment and delegation is
desirable to effect the transactions contemplated in this Agreement.
IN WITNESS WHEREOF, each of the Constituent Corporations and Bancorp has
caused this Merger Agreement to be executed on its behalf by its officers
hereunto duly authorized and its corporate seal to be affixed hereto, all as of
the date first above written.
ATTEST: NBD BANCORP, INC.
By/s/ Richard J. McCullen By/s/ James R. Lancaster
- ------------------------- ------------------------
James R. Lancaster
Executive Vice
President
ATTEST: NBD ILLINOIS, INC.
By/s/ Richard J. McCullen By/s/ James R. Lancaster
- ------------------------- ------------------------
James R. Lancaster
President
ATTEST: AmeriFed FINANCIAL CORP.
By/s/ Stephen G. Morrissette By/s/ Robert B. Breidert
- ------------------------- ------------------------
Robert B. Breidert
President and Chief
Executive Officer
A-5
<PAGE> 45
[THE CHICAGO CORPORATION LETTERHEAD]
APPENDIX B
DRAFT
__________, 1994
Board of Directors
AmeriFed Financial Corp.
120 Scott Street
Joliet, Illinois 60431
Members of the Board:
You have requested our opinion as to the fairness of the merger
consideration (the "Merger Consideration"), from a financial point of view, to
the shareholders of AmeriFed Financial Corp. ("AmeriFed") with respect to the
proposed merger of AmeriFed with and into NBD Bancorp, Inc. ("NBD"). AmeriFed
has entered into an Agreement and Plan of Reorganization and a related
Agreement and Plan of Merger (collectively the "Agreements"), both dated March
23, 1994, between NBD, NBD Illinois, Inc. ("NBD Illinois") and AmeriFed. As is
set forth in the Agreements, each outstanding share of common stock of AmeriFed
will be converted into and be exchangeable for the number of shares of Common
Stock, $1.00 par value per share, of NBD equal to a fraction, the numerator of
which shall be equal to $45.00 and the denominator of which shall be equal to
the average closing price per share of Common Stock of NBD as reported on the
New York Stock Exchange Composite Tape for the five trading days ending on the
fifth trading day prior to the Effective Date of Merger.
During the course of our engagement, we have, among other things:
1) reviewed the Agreements, the audited financial statements of AmeriFed
and NBD for the most recent three fiscal years, and unaudited
financial statements through June 30, 1994 as reported on Form 10-Q,
Office of Thrift Supervision ("OTS") Thrift Financial Reports of
AmeriFed, as well as other internally generated AmeriFed reports
relating to asset/liability management, asset quality and so forth;
2) reviewed and analyzed other material bearing upon the financial and
operating condition of NBD and AmeriFed and material prepared in
connection with the proposed transaction;
3) reviewed the operating characteristics of certain other financial
institutions deemed relevant to the contemplated transaction;
4) reviewed the nature and terms of recent sale and merger transactions
involving banks, thrifts, bank and thrift holding companies and other
financial institutions that we consider relevant;
B-1
<PAGE> 46
________, 1994
Board of Directors
AmeriFed Financial Corp.
Page 2
5) reviewed historical and current market data for NBD and AmeriFed
common stock;
6) reviewed financial and other information provided to us by the
managements' of NBD and AmeriFed;
7) conducted meetings with members of the senior management of NBD and
AmeriFed for the purpose of reviewing the future prospects of NBD and
AmeriFed;
8) reviewed certain information including forecasts pertaining to
prospective cost savings and revenue enhancements relative to the
proposed transactions;
9) evaluated the pro forma ownership of NBD common stock by AmeriFed
shareholders, relative to the pro forma contribution of AmeriFed's
assets, liabilities, equity and earnings to the pro forma company.
The Chicago Corporation, as part of its investment banking business, is
continually engaged in the valuation of banks and bank holding companies and
thrifts and thrift holding companies in connection with mergers and
acquisitions as well as initial and secondary offerings of securities as well
as valuations for other purposes. The Chicago Corporation is a member of all
principal U.S. Securities exchanges and in the conduct of our broker-dealer
activities may from time to time purchase securities from, and sell securities
to, AmeriFed and NBD and as a market maker buy or sell the equity securities of
AmeriFed for our own account and for the accounts of customers. In rendering
this fairness opinion we have acted exclusively on behalf of the Board of
Directors of AmeriFed and will receive a fee from AmeriFed for our services.
In rendering this opinion, we have relied upon, without independent
verification, the accuracy and completeness of the financial and other
information and representations provided to us by NBD and AmeriFed. We have
relied upon the management of AmeriFed and NBD as to the reasonableness and
achievability of the financial forecasts and projections (and the assumptions
and basis therefore) provided to us, and have assumed that such forecasts and
projections are the best available estimates of management.
Based on the foregoing and our experience as investment bankers, we are of the
opinion that, as of the date hereof, the Merger Consideration to be paid to the
shareholders of AmeriFed as described in the Agreements, is fair from a
financial point of view.
Sincerely,
THE CHICAGO CORPORATION
B-2
<PAGE> 47
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article Eighth of the Registrant's Restated Certificate of
Incorporation, as amended, provides for indemnification of directors and
officers. The provision provides that any person shall be indemnified and
reimbursed by the Registrant for expenses and liabilities imposed upon the
person in connection with any action, suit or proceeding, civil or criminal, or
threat thereof, in which the person may be involved by reason of the person
being or having been a director, officer, employee or agent of the Registrant,
or of any corporation or organization which the person served in any capacity
at the request of the Registrant, if the person acted in good faith and in a
manner the person reasonably believed to be in or not opposed to the best
interests of the Registrant and, with respect to any criminal action or
proceeding, had no reasonable cause to believe the person's conduct was
unlawful. Provided, however, that no indemnification shall be made in respect
of any matter as to which such person shall have been adjudged to be liable for
negligence or misconduct in the performance of the person's duty to the
Registrant unless the Court of Chancery of Delaware or the court in which such
action or suit was brought shall determine upon application that such person is
fairly and reasonably entitled to indemnity.
The directors and officers of the Registrant are covered by an insurance
policy, indemnifying them against certain civil liabilities, including
liabilities under the federal securities laws, which might be incurred by them
in such capacity.
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
The following exhibits are filed as part of this Registration Statement:
The Exhibits marked with one asterisk below were filed as Exhibits
to Registration Statement No. 33-40535 filed on June 6, 1991 and are
incorporated herein by reference, the Exhibit numbers in brackets being
those in such Registration Statement.
(2)(a) Agreement and Plan of Reorganization among NBD Bancorp, Inc., NBD
Illinois, Inc., and AmeriFed Financial Corp., dated as of
March 23, 1994.
(2)(b) Merger Agreement between AmeriFed Financial Corp. and NBD
Illinois, Inc., joined in by NBD Bancorp, Inc., dated as of
March 23, 1994, is set forth in full in Appendix A to the Proxy
Statement-Prospectus which is part of this Registration
Statement.
(3)(a)* Restated Certificate of Incorporation of Registrant, as amended.
[(3)(a)]
(3)(b)* By-Laws of Registrant. [(3)(b)]
(5) Opinion of Legal Counsel of Registrant.
(8) Tax Opinion of Muldoon, Murphy & Faucette.
(21) Subsidiaries of Registrant.
(23)(a) Consent of Deloitte & Touche LLP (Detroit).
(23)(b) Consent of Deloitte & Touche LLP (Chicago).
(23)(c) Consent of KPMG Peat Marwick LLP.
(23)(d) Consent of Ernst & Young LLP.
(23)(e) Consent of Legal Counsel of Registrant -- included in Exhibit 5
hereof.
II-1
<PAGE> 48
(23)(f) Consent of Muldoon, Murphy & Faucette.
(23)(g) Consent of The Chicago Corporation.
(99)(a) Stock Option Agreement between NBD Bancorp, Inc. and AmeriFed
Financial Corp., dated as of March 23, 1994.
(99)(b) Form of Proxy for AmeriFed Financial Corp.
(99)(c) Form of Opinion of The Chicago Corporation is set forth in full
in Appendix B to the Proxy Statement-Prospectus which is part of
this Registration Statement.
ITEM 22. UNDERTAKINGS.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 that is incorporated by reference in this Registration
Statement shall be deemed to be a new registration statement relating to the
securities offered herein and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
The undersigned Registrant hereby undertakes to deliver or cause to be
delivered with the prospectus, to each person to whom the prospectus is sent or
given, the latest annual report to security holders of NBD and AmeriFed, that
is incorporated by reference in the prospectus and furnished pursuant to and
meeting the requirements of Rule 14a-3 or Rule 14c-3 under the Securities
Exchange Act of 1934; and, where interim financial information required to be
presented by Article 3 of Regulation S-X are not set forth in the prospectus,
to deliver, or cause to be delivered to each person to whom the prospectus is
sent or given, the latest quarterly report of NBD and AmeriFed, that is
specifically incorporated by reference in the prospectus to provide such
interim financial information.
The undersigned Registrant 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
Registrant 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 by the other Items of the applicable form.
The Registrant undertakes that every prospectus (i) that is filed
pursuant to the immediately preceding paragraph, or (ii) that purports to meet
the requirement of Section 10(a) (3) of the Act and is used in connection with
an offering of securities subject to Rule 415 will be filed as a part of an
amendment to the Registration Statement and will not be used until such
amendment is effective, and that, for purposes of determining any liability
under the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new Registration Statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the provisions described under Item 20, or
otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer
or controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public
II-2
<PAGE> 49
policy as expressed in the Act and will be governed by the final adjudication
of such issue.
The undersigned Registrant hereby undertakes to respond to requests for
information that is incorporated by reference into the prospectus pursuant to
Items 4, 10(b), 11 or 13 of this Form, within one business day of receipt of
such request, and to send the incorporated documents by first class mail or
other equally prompt means. This includes information contained in documents
filed subsequent to the effective date of the Registration Statement through
the date of responding to the request.
The undersigned Registrant hereby undertakes to supply by means of a
post-effective amendment all information concerning a transaction, and the
company being acquired involved therein, that was not the subject of and
included in the Registration Statement when it became effective.
The undersigned Registrant hereby undertakes to file, during any period
in which offers or 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, represents a fundamental change in the information set forth in this
Registration Statement; and (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 this
Registration Statement.
The Registrant further undertakes: (i) 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, and
(ii) 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> 50
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Registration Statement or amendment thereto to
be signed on its behalf by the undersigned, thereunto duly authorized, in the
City of Detroit and State of Michigan, on September 30, 1994.
NBD BANCORP, INC.
By: /s/ VERNE G. ISTOCK
-----------------------------
Verne G. Istock, Chairman and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement or amendment thereto has been signed below by the
following persons in the capacities indicated on September 30, 1994.
<TABLE>
Signature Title Signature Title
--------- ----- --------- -----
<S> <C> <C> <C>
Chairman, CEO and
/s/ VERNE G. ISTOCK Director (Principal /s/ CHARLES T. FISHER III Director
- ------------------------ Executive Officer) ----------------------------
Verne G. Istock Charles T. Fisher III
Executive Vice /s/ ALFRED R. GLANCY III Director
/s/ LOUIS BETANZOS President, Treasurer ----------------------------
- ------------------------ and Chief Financial Alfred R. Glancy III
Louis Betanzos Officer (Principal
Financial Officer) Director
----------------------------
Senior Vice President Dennis J. Gormley
/s/ GERALD K. HANSON and Comptroller
- ------------------------ (Principal Accounting /s/ JOSEPH L. HUDSON, JR. Director
Gerald K. Hanson Officer) ----------------------------
Joseph L. Hudson, Jr.
/s/ TERENCE E. ADDERLEY Director /s/ THOMAS H. JEFFS II Director
- ------------------------ ----------------------------
Terence E. Adderley Thomas H. Jeffs II
/s/ JAMES K. BAKER Director /s/ JOHN E. LOBBIA Director
- ------------------------ ----------------------------
James K. Baker John E. Lobbia
/s/ DON H. BARDEN Director Director
- ------------------------ ----------------------------
Don H. Barden Richard A. Manoogian
/s/ SIEGFRIED BUSCHMANN Director /s/ WILLIAM T. McCORMICK, JR. Director
- ------------------------ ----------------------------
Siegfried Buschmann William T. McCormick, Jr.
/s/ BERNARD B. BUTCHER Director
- ------------------------ ---------------------------- Director
Bernard B. Butcher Irving Rose
/s/ JOHN W. DAY Director /s/ ROBERT C. STEMPEL Director
- ------------------------ ----------------------------
John W. Day Robert C. Stempel
/s/ MAUREEN A. FAY, O.P. Director /s/ PETER W. STROH Director
- ------------------------ ----------------------------
Maureen A. Fay, O.P. Peter W. Stroh
/s/ ORMAND J. WADE Director
----------------------------
Ormand J. Wade
</TABLE>
II-4
<PAGE> 51
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- -------- -----------
<S> <C>
(2)(a) Agreement and Plan of Reorganization among NBD Bancorp, Inc., NBD Illinois, Inc.,
and AmeriFed Financial Corp., dated as of March 23, 1994.
(2)(b) Merger Agreement between AmeriFed Financial Corp. and NBD Illinois, Inc., joined
in by NBD Bancorp, Inc., dated as of March 23, 1994, is set forth in full in
Appendix A to the Proxy Statement-Prospectus which is part of this Registration
Statement.
(3)(a)* Restated Certificate of Incorporation of Registrant, as amended. [(3)(a)]
(3)(b)* By-Laws of Registrant. [(3)(b)]
(5) Opinion of Legal Counsel of Registrant.
(8) Tax Opinion of Muldoon, Murphy & Faucette.
(21) Subsidiaries of Registrant.
(23)(a) Consent of Deloitte & Touche LLP (Detroit).
(23)(b) Consent of Deloitte & Touche LLP (Chicago).
(23)(c) Consent of KPMG Peat Marwick LLP.
(23)(d) Consent of Ernst & Young LLP.
(23)(e) Consent of Legal Counsel of Registrant -- included in Exhibit 5 hereof.
(23)(f) Consent of Muldoon, Murphy & Faucette.
(23)(g) Consent of The Chicago Corporation.
(99)(a) Stock Option Agreement between NBD Bancorp, Inc. and AmeriFed Financial Corp.,
dated as of March 23, 1994.
(99)(b) Form of Proxy for AmeriFed Financial Corp.
(99)(c) Form of Opinion of The Chicago Corporation is set forth in full in Appendix B to
the Proxy Statement-Prospectus which is part of this Registration Statement.
</TABLE>
- -------------------------
* The Exhibits marked with one asterisk above were filed as Exhibits to
Registration Statement No. 33-40535 filed on June 6, 1991 and are incorporated
herein by reference, the Exhibit numbers in brackets being those in such
Registration Statement.
<PAGE> 1
EXHIBIT-(2)(A)
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION, dated as of March 23, 1994,
by and among NBD Bancorp, Inc., a Delaware corporation ("Bancorp"), NBD
Illinois, Inc., a Delaware corporation ("Bancorp Subsidiary"), and AmeriFed
Financial Corp., a Delaware corporation (the "Company").
WITNESSETH:
WHEREAS, Bancorp Subsidiary is a wholly-owned subsidiary of Bancorp,
and Bancorp and the Company desire that the Company be merged into Bancorp
Subsidiary in accordance with the applicable laws, rules and regulations of the
State of Delaware and in accordance with an Agreement and Plan of Merger (the
"Merger Agreement") substantially on the terms and in the form attached hereto
as Exhibit A (the merger provided for therein being herein called the
"Merger"); and
WHEREAS, in consideration of the execution of this Agreement by
Bancorp, Company is granting to Bancorp an option to acquire up to 610,578
shares of the authorized but unissued Company Common Stock on the terms and in
the form attached hereto as Exhibit B (the "Option Agreement").
NOW, THEREFORE, in consideration of the premises and the mutual and
dependent promises hereinafter contained, the parties do represent, warrant,
covenant and agree as follows:
ARTICLE I
THE MERGER
1.1 Merger Agreement. The Boards of Directors of Bancorp Subsidiary
and the Company have adopted resolutions approving and adopting the Merger
Agreement, and Bancorp, Bancorp Subsidiary, and the Company shall execute and
deliver the Merger Agreement.
1.2 The Closing. The Merger shall be consummated, subject to the
terms and conditions of this Agreement and the Merger Agreement, as promptly as
possible after a closing (the "Closing") to be held at such place and on such
date and time on or after January 1, 1995, as the parties may agree upon (the
"Closing Date"), which shall be as soon as practicable after the last to occur
of the following events: (i) the receipt by Bancorp and the Company of the
opinions of legal counsel contemplated by Section 4.2 hereof; (ii) the receipt
of the consent of all government regulatory authorities whose consent is a
legally requisite condition to the consummation of the Merger and the
expiration of all statutory
<PAGE> 2
waiting periods; and (iii) the requisite approval of the Merger Agreement by
the shareholders of the Company. The parties shall cooperate in seeking and
obtaining all such opinions, consents and approvals.
1.3 Effective Date of Merger. The Merger shall be consummated upon
the date specified therefor in a Certificate of Merger filed by Bancorp
Subsidiary as the surviving corporation in the form and manner required by the
General Corporation Law of the State of Delaware (the "Delaware Act"), which
shall be done as soon as practicable following the Closing. The close of
business on the date specified in such Certificate of Merger is herein referred
to as the "Effective Date of Merger".
1.4 Merger of FSB and Bank. The Company owns all of the issued and
outstanding shares of AmeriFed Bank, FSB, a federally chartered stock savings
bank ("FSB"). Bancorp and the Company agree and acknowledge that, as soon as
practicable following the Effective Date of Merger, FSB shall be merged with
and into NBD Bank, an Illinois state bank and a wholly owned subsidiary of
Bancorp Subsidiary ("Bank"), in a transaction that satisfies the requirements
of Section 5(d)(3) of the Federal Deposit Insurance Act.
ARTICLE II
BANCORP'S REPRESENTATIONS AND WARRANTIES
Bancorp and Bancorp Subsidiary represent and warrant to the Company as
follows (the word "material" meaning material to Bancorp and its subsidiaries
taken as a whole):
2.1 Corporate Standing of Bancorp. Bancorp is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware, is a registered bank holding company under the Bank Holding Company
Act of 1956, as amended (the "BHCA"), is duly qualified to do business and is
in good standing in each jurisdiction in which the nature of the business
conducted or the properties or assets owned or leased by it makes such
qualification necessary and has the corporate power to carry on its business as
and where conducted, to own, lease and operate its properties, to execute and
deliver this Agreement and the Merger Agreement and to consummate the
transactions contemplated thereby, subject to having obtained all requisite
shareholder and regulatory approvals contemplated by this Agreement.
2.2 Corporate Standing of Bancorp Subsidiary. Bancorp Subsidiary is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware, is a registered bank holding company under the
BHCA, is authorized to transact business as a foreign corporation under the
laws of the State of Illinois and has the corporate power to carry on its
business as and where conducted.
2
<PAGE> 3
2.3 Authorization. The execution, delivery and performance of this
Agreement and the Merger Agreement by Bancorp and by Bancorp Subsidiary have
been duly authorized and approved by all necessary corporate action, and this
Agreement is, and the Merger Agreement when adopted by Bancorp as the sole
shareholder of Bancorp Subsidiary will be, legally binding on and enforceable
against Bancorp and Bancorp Subsidiary in accordance with their terms. The
execution and delivery of this Agreement and the Merger Agreement do not, and
the consummation of the Merger will not, violate the provisions of Bancorp's or
Bancorp Subsidiary's respective Certificates of Incorporation, as amended, or
By-Laws, as amended. The consummation of the Merger will not result in any
breach or violation of, or default under, any judgment, decree, mortgage,
agreement, indenture or other instrument to which Bancorp, Bancorp Subsidiary
or their assets may be bound and which would have a material adverse effect on
the business, operations or prospects of Bancorp.
Other than in connection or in compliance with the provisions of the
Delaware Act, the Securities Act of 1933, as amended, and the rules and
regulations thereunder (the "Securities Act"), the Securities Exchange Act of
1934, as amended, and the rules and regulations thereunder (the "Exchange
Act"), the securities or blue sky laws of the various states, consents,
authorizations, approvals or exemptions from the Board of Governors of the
Federal Reserve System (the "Federal Reserve Board"), the Office of Thrift
Supervision (the "OTS"), the Federal Deposit Insurance Corporation (the "FDIC")
or the regulatory authorities of the States of Illinois and Michigan, no notice
to, filing with, authorization of, exemption by, or consent or approval of, any
public body or authority is necessary for the consummation by Bancorp and
Bancorp Subsidiary of the transactions contemplated by this Agreement and the
Merger Agreement.
2.4 Capital Stock. The authorized capital stock of Bancorp consists
of 500,000,000 shares of Common Stock, $1.00 par value; 460,000 shares of
Preferred Stock, $1.00 par value; and 10,000,000 shares of Preferred Stock,
without par value. As of March 15, 1994, 160,782,753 shares of Bancorp Common
Stock were issued and outstanding, fully paid and nonassessable; and no shares
of Bancorp Preferred Stock were issued and outstanding.
2.5 Financial Statements. Bancorp has delivered or will deliver to
the Company copies of the following financial statements:
(i) The consolidated balance sheet of Bancorp and its
subsidiaries as of December 31, 1993, and the consolidated statements
of income, shareholders' equity and cash flows for the three years
ended December 31, 1993, as certified by Deloitte & Touche, independent
auditors;
(ii) Promptly after the publication or submission thereof,
each audited consolidated balance sheet and related consolidated
statements of income, shareholders' equity and cash flows, unaudited
quarterly financial statement,
3
<PAGE> 4
and financial report or statement filed with the Securities and Exchange
Commission ("SEC") or filed with or submitted to any other regulatory
authority after the date of this Agreement until the Effective Date of
Merger.
Such financial statements have been or will be prepared in accordance
with U.S. generally accepted accounting principles ("GAAP") applied on a
consistent basis, and present or will present fairly the consolidated financial
position of Bancorp and its subsidiaries at the dates shown and the
consolidated results of their operations and changes in financial position for
the periods covered.
2.6 Absence of Material Adverse Change. Since December 31, 1993,
there has been no material adverse change in the financial position, business
or prospects of Bancorp.
2.7 Absence of Litigation. There is no action, suit, proceeding,
claim or investigation of any kind or nature pending or, to the knowledge of
Bancorp, threatened against Bancorp or any of its subsidiaries, or the assets
or business of Bancorp or any of its subsidiaries which could reasonably be
expected to have a material adverse effect on Bancorp's consolidated business,
condition or prospects, or challenging or seeking to enjoin or prohibit the
transactions contemplated by this Agreement. Neither the Bancorp nor any of
its subsidiaries is subject to, or in default with respect to, nor are any of
their assets subject to, any outstanding judgment, order, injunction or decree
or any other requirement of any court or of any governmental agency which would
have a material adverse effect on Bancorp's consolidated financial condition,
properties, assets, liabilities, operations or business.
2.8 Conduct of Business. Bancorp and each of its subsidiaries has
conducted business and used its property substantially in compliance with all
federal, state, and local laws, ordinances and regulations, particularly, but
not by way of limitation, applicable banking laws, federal and state securities
laws, and laws and regulations concerning truth-in-lending, usury, fair credit
reporting, consumer protection, occupational safety, environmental, fair
employment practices and fair labor standards, violation of which would have a
material adverse effect on Bancorp's consolidated business or condition.
2.9 Bancorp Common Stock. The shares of Bancorp Common Stock to be
issued in accordance with the Merger Agreement have been duly authorized and,
when issued as contemplated thereby, will be duly and validly issued and
outstanding, fully paid and nonassessable shares of Bancorp Common Stock free
and clear of all claims, liens, encumbrances and security interests and of any
preemptive or other similar rights, and prior to the Closing shall have been
listed on the New York Stock Exchange, subject to official notice of issuance.
The shares of Bancorp Common Stock to be issued in accordance with the Merger
Agreement may be authorized but unissued shares or treasury shares; provided
that Bancorp may not repurchase any shares of its Common Stock in the 30-day
period
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prior to the Effective Date of Merger; and provided further that repurchases of
Common Stock by Bancorp shall comply with the rules and regulations of the SEC,
the New York Stock Exchange and all regulatory authorities.
2.10 Absence of Undisclosed Liabilities. Except as and to the extent
reflected or reserved against in the consolidated balance sheet of Bancorp as
of December 31, 1993, and the notes thereto, and to be reflected or reserved
against in the most recent quarterly unaudited consolidated balance sheet of
Bancorp prior to the Closing, Bancorp had or will have, as of the date of such
balance sheets, no material liabilities or obligations of any nature, secured
or unsecured (whether accrued, absolute, contingent or otherwise), of a nature
required to be reflected in its balance sheet, or the notes thereto, prepared
in accordance with GAAP or which would have a materially adverse effect on the
consolidated financial position of Bancorp. Bancorp further represents and
warrants that it does not know or have reason to believe that there is or will
be any basis for assertion against it or any of its subsidiaries of any
liability or obligation of any nature or any amount not fully reflected or
reserved against in the consolidated financial statements as of said dates or
as of such subsequent dates and for such subsequent periods as reflected in
subsequent financial statements which would have a material adverse effect on
the consolidated financial position of Bancorp.
2.11 Absence of Defaults under Contracts. To the best of its
knowledge, there is not, under any material contract or agreement to which
Bancorp or any of its subsidiaries is a party, any existing default by Bancorp
or any of its subsidiaries which could have a material adverse effect on the
financial position, business or prospects of Bancorp. No default or breach of
contract will occur by virtue of the Merger under any material contract or
agreement to which Bancorp or any of its subsidiaries is a party and no
material contract rights of Bancorp or any of its subsidiaries under any
existing contracts or agreements to which Bancorp or any of its subsidiaries is
a party will be extinguished or impaired by virtue of the Merger.
2.12 Filings. Bancorp has filed in a timely manner and will continue
to file in a timely manner all required filings with the SEC, including all
Form 10-K and 10-Q Reports, and, to the best knowledge of Bancorp, with all
other regulatory bodies where such filings are required; and, to the best
knowledge of Bancorp, all such filings were complete and accurate in all
material respects as of the dates of the filings, and there were no material
misstatements or omissions therein. Except for normal examinations conducted
by the Internal Revenue Service or various regulatory authorities in the
regular course of the business of the Bancorp and its subsidiaries, no federal,
state or local governmental agency, commission or other entity has initiated
any proceedings or, to the best knowledge of Bancorp, investigation into the
business or operations of the Bancorp and its subsidiaries within the past five
years which would have material adverse effect on the consolidated financial
condition of Bancorp. To Bancorp's knowledge, there is no unresolved
violation, criticism or exception of a material nature by the
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SEC or any regulatory authority or other agency, commission or entity with
respect to any report or statement referred to herein. Since the date of any
filings with any regulatory authority there has been no material change in
Bancorp's condition, financial or otherwise, such that had such change occurred
prior to any such filing, such change would have been required to be disclosed
or described therein.
2.13 Registration Statement, Etc. None of the information to be
supplied by Bancorp for inclusion, or incorporated by reference, in (i) the
Registration Statement to be filed by Bancorp with the SEC (the "Registration
Statement") to register the Bancorp Common Stock to be issued in the Merger,
(ii) the Prospectus-Proxy Statement to be mailed to the shareholders of the
Company in connection with the meeting (the "Shareholders' Meeting") to be
called to consider the Merger (the "Proxy Statement"), or (iii) any other
documents to be filed with the SEC or any regulatory agency in connection with
the transactions contemplated hereby or by the Merger Agreement will, at the
respective times such documents are filed, 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 or any amendment thereof
or supplement thereto, at the time of the Shareholders' Meeting, 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 Shareholders' Meeting. All
documents which Bancorp is responsible for filing with the SEC and any
regulatory agency in connection with the Merger will comply as to form in all
material respects with the provisions of applicable law.
2.14 Employee Benefit Plans. All of the employee benefit plans of
Bancorp are in substantial compliance with any and all federal and state laws
and regulations in effect at the date hereof covering employee benefit plans
and there are no unfunded liabilities relating to any of such plans.
2.15 Community Reinvestment Act. None of Bancorp's banking
subsidiaries has received a rating from its principal banking regulator which
is less than "satisfactory" in its most recent examination under the applicable
provisions of the Community Reinvestment Act of 1977 and the regulations
promulgated thereunder, nor does Bancorp have any reason to believe that any
such banking subsidiary will receive a rating which will be less than
"satisfactory" in its next regulatory examination.
2.16 Absence of Defaults under Contracts. To the best knowledge of
Bancorp, there is not, under any material contract or agreement to which
Bancorp or the subsidiaries is a party, any existing default by Bancorp or the
subsidiaries which could have a material adverse effect on the affairs,
business or prospects of Bancorp or the subsidiaries. No default or breach of
contract will occur by virtue
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of the Merger under any material contract or agreement to which Bancorp or the
subsidiaries is a party and no material contract rights of Bancorp or the
subsidiaries under any existing contracts or agreements to which Bancorp or the
subsidiaries is a party will be extinguished or impaired by virtue of the
Merger.
2.17 Advice of Changes. Between the date hereof and the Effective Date
of Merger, Bancorp shall promptly advise the Company in writing of any fact
which, if existing or known at the date hereof, would have been required to be
set forth or disclosed in or pursuant to this Agreement or of any fact which,
if existing or known at the date hereof, would have made any of the
representations contained herein materially untrue.
2.18 Approvals. Bancorp knows of no reason why all regulatory
approvals necessary to permit it to consummate the transactions contemplated
hereby in the manner provided herein should not be obtained or why the opinion
letter referred to in Section 7.2 hereof cannot be obtained.
ARTICLE III
THE COMPANY'S REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to Bancorp and Bancorp Subsidiary
as follows (the word "material" meaning material to the Company and its
subsidiaries taken as a whole):
3.1 Corporate Standing. The Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware,
is a registered savings and loan holding company under the Savings and Loan
Holding Company Act, is duly qualified to do business and is in good standing
in the State of Illinois, and has the corporate power to carry on its business
as and where conducted, to own, lease and operate its properties, to execute
and deliver this Agreement and the Merger Agreement and to consummate the
transactions contemplated thereby, subject to having obtained all requisite
shareholder and regulatory approvals contemplated by this Agreement.
3.2 Capital Stock. The authorized capital stock of the Company
consists of 6,000,000 shares of Common Stock, $.01 par value, of which, as of
March 22, 1994, 3,068,231 shares of Common Stock were issued and outstanding,
fully paid and nonassessable; and 1,500,000 shares of Preferred Stock, $.01 par
value, of which no shares are issued and outstanding. Except as disclosed in
Schedule 3.2 hereto, there are no other outstanding subscriptions, options,
warrants, agreements, understandings or arrangements to which the Company is a
party or by which it is or may become bound relating to its authorized or
issued capital stock, or pursuant to which the Company may be obligated to
issue additional shares of capital stock.
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3.3 Subsidiaries. The Company owns free and clear of all liens,
claims, charges or encumbrances of any sort whatsoever all of the issued and
outstanding capital stock of SACORE Capital Management, Ltd., an inactive
Illinois corporation ("SACORE"), AmeriFed Bank, FSB, a federally chartered
stock savings bank ("FSB"), and AmeriFed Financial Services, Inc., an Illinois
corporation and wholly-owned subsidiary of FSB (individually, "Financial
Services" and collectively with SACORE and FSB, the "Subsidiaries"), which are
the only entities in which the Company has a direct or indirect ownership
interest, except for the shares of stock of the Federal Home Loan Bank of
Chicago which FSB is required to hold. The Subsidiaries are duly organized,
validly existing and in good standing under the laws of the jurisdiction of
their incorporation, and have the corporate power to carry on their business as
and where conducted. The Subsidiaries are not and may not be obligated to
issue any shares of their capital stock, or any option, warrant or right to
purchase any such shares. The Company holds no interest in any partnership or
joint venture of any kind. The deposits of FSB are insured by the Savings
Association Insurance Fund of the Federal Deposit Insurance Corporation
("FDIC"). FSB is a member in good standing of the Federal Home Loan Bank of
Chicago, and has purchased all stock and paid all memberships and other fees
required as a result thereof. FSB is a "domestic building and loan
association" as defined in Section 7701(a)(19) of the Internal Revenue Code of
1986, as amended.
3.4 Authorization. The execution, delivery and performance of this
Agreement and the Merger Agreement by the Company have been duly authorized and
approved by all necessary corporate action and each of the Agreements are
legally binding on and enforceable against the Company in accordance with their
terms, subject to the adoption of the Merger Agreement by the shareholders of
the Company. The only shareholder vote required for the Company to carry out
its obligations hereunder is the affirmative vote of the holders of a majority
of the outstanding shares of the Company's Common Stock. The execution and
delivery of the Agreements do not, and the consummation of the Merger will not,
violate the Company's Certificate of Incorporation, as amended, or By-Laws, as
amended. The consummation of the Merger will not result in any breach or
violation of, or default under, any judgment, decree, mortgage, agreement,
indenture or other instrument applicable to the Company or Subsidiaries or the
assets thereof.
Other than in connection or in compliance with the provisions of the
Delaware Act, the Securities Act, the Exchange Act, the securities or blue sky
laws of the various states, consents, authorizations, approvals or exemptions
required by the Federal Reserve Board, the OTS, the FDIC and regulatory
authorities of the States of Michigan and Illinois, no notice to, filing with,
authorization of, exemption by, or consent or approval of, any public body or
authority is necessary for the consummation by the Company of the transactions
contemplated by this Agreement and the Merger Agreement.
3.5 Financial Statements. The Company has delivered or will deliver
to
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Bancorp copies of the following financial statements:
(i) The consolidated balance sheet of the Company and
Subsidiary as at September 30, 1993, and the consolidated statements of
income, changes in capital accounts and cash flows for the three years
ended September 30, 1993, as certified by Deloitte & Touche,
independent auditors;
(ii) Each of its quarterly financial statements prepared from
September 30, 1993, until the date of this Agreement;
(iii) Each financial report or statement submitted to
regulatory authorities since September 30, 1993, until the date of this
Agreement; and
(iv) Promptly after the publication or submission thereof,
each audited consolidated balance sheet and related consolidated
statements of income, shareholders' equity and cash flows, unaudited
quarterly financial statement, and financial report or statement filed
with the SEC or filed with or submitted to any regulatory authorities
after the date of this Agreement until the Effective Date of Merger.
Such financial statements have been or will be prepared in accordance
with GAAP, and present or will present fairly the consolidated financial
position of the Company and Subsidiary at the dates shown and the results of
their operations and changes in financial position for the periods covered.
Neither the Company nor the Subsidiaries have changed their independent
auditing firm since September 30, 1993, or changed in any material respect the
manner in which they have reported their financial condition and results of
operations and changes in financial position, or revalued any of its assets,
other than as required by GAAP or applicable regulatory accounting principles.
3.6 Absence of Material Adverse Change. Since September 30, 1993,
there has not been any material adverse change in the financial position,
business or prospects of the Company.
3.7 Absence of Litigation. There is no action, suit, proceeding,
claim or investigation of any kind or nature pending or, to the knowledge of
the Company, threatened against the Company or the Subsidiaries or the assets
or business of either which could reasonably be expected to have a material
adverse effect on the Company's consolidated business, condition or prospects
or challenging or seeking to enjoin or prohibit the transactions contemplated
by this Agreement.
3.8 Conduct of Business. The Company and the Subsidiaries have
conducted their business and used their property substantially in compliance
with all federal, state, and local laws, ordinances and regulations,
particularly, but not
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by way of limitation, applicable banking laws, federal and state securities
laws, and laws and regulations concerning truth-in-lending, usury, fair credit
reporting, consumer protection, occupational safety, environmental, fair
employment practices and fair labor standards, violation of which would have a
material adverse effect on the Company's consolidated business, condition or
prospects.
Neither the Company nor either of the Subsidiaries has received any
notification or communication from any agency or department of any federal,
state or local government or regulatory authority or the staffs thereof (i)
asserting that either the Company or the Subsidiaries are not in substantial
compliance with any of the statutes, regulations or ordinances that such
agency, department or regulatory authority enforces, or of its internal
policies and procedures, except with respect to matters which (A) are set forth
in any writing previously furnished to Bancorp and (B) could not reasonably be
expected to have a material adverse effect on the business, condition or
prospects of the Company, (ii) threatening to revoke any license, franchise,
permit or governmental authorization that is material to the business,
condition or prospects of the Company, including, without limitation, FSB's
status as an insured depository institution under the Federal Deposit Insurance
Act, (iii) requiring or threatening to require either the Company or either
Subsidiary or indicating that either the Company or such Subsidiary is or 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 either the Company or
such Subsidiary, 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. Neither the Company
nor FSB is required by Section 32 of the Federal Deposit Insurance 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.
3.9 Tax Returns. Neither the Company nor either of the
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.
The federal and state income tax returns of the Company and the Subsidiaries
have been audited by the Internal Revenue Service or appropriate state tax
authorities; such audits have been completed and settled for all periods ended
through September 30, 1985. There is no deficiency or refund litigation or
matter in controversy with respect to the tax returns of the Company or the
Subsidiaries. Neither the Company nor either of the Subsidiaries has extended
or waived any statute of limitations on the assessment of any tax due that is
currently in effect. The provisions made for taxes, if any, on the
consolidated balance sheet of the Company and the Subsidiaries as of the most
recent quarterly consolidated balance sheet of the Company prior to the Closing
are sufficient for the payment of all
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federal, state, county and local taxes of the Company and the Subsidiaries
accrued but unpaid as of the date indicated, whether or not disputed, with
respect to all periods through the date of such balance sheet.
3.10 Absence of Undisclosed Liabilities. Except as and to the
extent reflected or reserved against in the consolidated balance sheet of the
Company as of September 30, 1993, and the notes thereto, and to be reflected or
reserved against in the most recent quarterly unaudited consolidated balance
sheet of the Company prior to the Closing, the Company had or will have, as of
the dates of such balance sheets, no material liabilities or obligations of any
nature, secured or unsecured (whether accrued, absolute, contingent or
otherwise), of a nature required to be reflected in its consolidated balance
sheet, or the notes thereto, prepared in accordance with GAAP or which would
have a materially adverse effect on the consolidated financial position of the
Company. The Company further represents and warrants that it does not know or
have reason to believe that there is or will be any basis for assertion against
it or any of its Subsidiaries of any liability or obligation of any nature or
any amount not fully reflected or reserved against in the consolidated
financial statements as of said dates or as of such subsequent dates and for
such subsequent periods as reflected in subsequent financial statements which
would have a material adverse effect on the consolidated financial position of
the Company.
3.11 Title to Properties. The Company and the Subsidiaries have
good and sufficient title to all their properties and assets, real and
personal, reflected in their books and records as being owned (including those
reflected in the consolidated balance sheet of the Company as of September 30,
1993, except as since sold or otherwise disposed of in the ordinary course of
business), free and clear of all liens and encumbrances, except such as are
reflected on the consolidated balance sheet of the Company as of September 30,
1993, and the notes thereto, except for liens for current taxes not yet due and
payable, and liens or encumbrances which are normal to the business of the
Company and the Subsidiaries and are not, in the aggregate, material in
relation to the assets of the Company, and except also for such imperfections
of title, easements and encumbrances, if any, as do not materially interfere
with the present use of the properties subject thereto or affected thereby, or
otherwise materially impair business operations or the marketability of the
properties. Any material leases pursuant to which the Company or the
Subsidiaries, as lessee, leases real or personal property are in good standing,
valid and effective in accordance with their respective terms, and there is
not, under any of such leases, any material existing default or any event which
with notice or lapse of time or both would constitute such a default, nor does
any of such leases contain a prohibition against assignment by the Company or
the Subsidiaries or any other provision which would preclude Bancorp or any of
its subsidiaries from occupying and using the leased premises for the same
purposes and upon the same rental and other terms as are applicable to the
occupation and use by the Company or the Subsidiaries.
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3.12 Absence of Defaults under Contracts. To the best knowledge of
the Company, there is not, under any material contract or agreement to which
the Company or the Subsidiaries is a party, any existing default by the Company
or the Subsidiaries which could have a material adverse effect on the affairs,
business or prospects of the Company or the Subsidiaries. No default or breach
of contract will occur by virtue of the Merger under any material contract or
agreement to which the Company or the Subsidiaries is a party and no material
contract rights of the Company or the Subsidiaries under any existing contracts
or agreements to which the Company or the Subsidiaries is a party will be
extinguished or impaired by virtue of the Merger.
3.13 Licenses, Permits, Etc. The Company and the Subsidiaries hold
all licenses, certificates, permits, franchises and rights from all appropriate
federal, state and other public authorities necessary for the conduct of their
businesses the lack of which would have a material adverse effect on such
conduct; neither the Company nor either of the Subsidiaries has been charged
with, or to the best of its knowledge is under governmental investigation with
respect to, any actual or alleged violation of any statute, ordinance, rule or
regulation which, if determined adversely, would have a material adverse effect
on the Company's consolidated business, condition or prospects; and, to the
best knowledge of the Company, neither the Company nor either of the
Subsidiaries is the subject of any pending or threatened proceeding by any
regulatory authority having jurisdiction over the business, properties or
operations of either the Company or the Subsidiaries.
3.14 Certain Employment Obligations. All material obligations of
the Company and the Subsidiaries, whether arising by operation of law, contract
or custom, for payments to trusts or other funds or to any governmental agency
or to any individual, director, officer, employee or agent (or his or her
heirs, legatees or legal representatives) with respect to unemployment
compensation benefits, profit sharing, pension or retirement benefits or social
security benefits, or for vacation or holiday pay, bonuses and other forms of
compensation which are payable to its directors, officers, employees or agents,
have been paid when due. Except as disclosed in Schedule 5.7 hereto, there are
no material contracts, understandings or arrangements between the Company or
the Subsidiaries and any director, officer or employee of either of them.
Except as disclosed in Schedule 3.14 hereto, neither the Company nor either of
the Subsidiaries has any material written or oral bonus, pension, profit
sharing, retirement, deferred compensation, savings, stock purchase, stock
option, severance, hospitalization, insurance or other plan providing employee
benefits or any employment, agency, consulting or similar contract, not in the
ordinary course of business.
3.15 Employee Benefit Plans. The Company has provided to Bancorp
copies of all of the Company's and the Subsidiaries' pension, profit sharing,
health, accident, welfare, life insurance and other employee benefit plans
within the meaning of Section 3(3) of the Employee Retirement Income Security
Act of 1974, as amended. All of such plans are in substantial compliance with
any and
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all federal and state laws and regulations thereunder in effect at the date
hereof covering employee benefit plans and there are no unfunded liabilities
relating to any of such plans.
3.16 Filings. The Company and the Subsidiaries have filed in a
timely manner and will continue to file in a timely manner all required filings
with the SEC, including all Form 10-K and 10-Q Reports, and, to the best
knowledge of Company, with all other regulatory bodies where such filings are
required; and, to the best knowledge of the Company, all such filings were
complete and accurate in all material respects as of the dates of the filings,
and there were no material misstatements or omissions therein. Except for
normal examinations conducted by the Internal Revenue Service or various
regulatory authorities in the regular course of the business of the Company and
its Subsidiaries, no federal, state or local governmental agency, commission or
other entity has initiated any proceedings or, to the best knowledge of
Company, investigation into the business or operations of the Company and its
Subsidiaries within the past five years which would have material adverse
effect on the consolidated financial condition of the Company. To the
Company's knowledge, there is no unresolved violation, criticism or exception
of a material nature by the SEC or any regulatory authority or other agency,
commission or entity with respect to any report or statement referred to
herein. Since the date of any filings with any regulatory authority there has
been no material change in the Company's condition, financial or otherwise,
such that had such change occurred prior to any such filing, such change would
have been required to be disclosed or described therein.
3.17 Broker's and Finder's Fees. Except as disclosed in Schedule
3.17 hereto, no agent, broker, investment banker, person or firm acting on
behalf of the Company or under its authority is or will be entitled to any
broker's or finder's fee or any other commission or similar fee directly or
indirectly in connection with any of the transactions contemplated herein.
3.18 Registration Statement, Etc. None of the information supplied
or to be supplied by the Company for inclusion, or incorporated by reference,
in (i) the Registration Statement, (ii) the Proxy Statement, or (iii) any other
documents to be filed with the SEC or any regulatory agency in connection with
the transactions contemplated hereby or by the Merger Agreement will, at the
respective times such documents are filed, 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 or any amendment thereof
or supplement thereto, at the time of the Shareholders' Meeting, 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 the Shareholders' Meeting. All
documents which the Company is responsible for filing with the SEC and any
regulatory agency in
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connection with the Merger will comply as to form in all material respects with
the provisions of applicable law.
3.19 Tax and Regulatory Matters. Neither the Company nor either of
the 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 and by the Merger Agreement from qualifying as a tax-free reorganization
under the Internal Revenue Code of 1986, as amended, or (ii) materially impede
or delay receipt of the approvals referred to in Section 6.3.
3.20 Environmental Matters.
(a) For purposes of this Section 3.21 the following terms shall have
the following respective meanings:
(i) "Environmental Law(s)" means any law, regulation, rule,
ordinance or similar requirement which governs or protects the
environment enacted by the United States, any state, or any
county, city or agency or subdivision of the United States or
any state.
(ii) "Hazardous Material(s)" means any material or substance:
(1) which is a "hazardous substance," "pollutant," or
"contaminant," pursuant to the Comprehensive Environmental
Response Compensation and Liability Act ("CERCLA") (42 USC
9601 et seq.) as amended and regulations promulgated
thereunder; (2) containing gasoline, oil, diesel fuel or other
petroleum products; (3) which is "hazardous waste" pursuant to
the Federal Resource Conservation and Recovery Act ("RCRA")
(42 U.S.C. Section 6901 et seq.) as amended and regulations
promulgated thereunder; (4) containing polychlorinated
biphenyls (PCBs); (5) containing asbestos; (6) which is
radioactive; (7) the presence of which requires investigation
or remediation under any Environmental Law (defined above); or
(8) which is defined or identified as a "hazardous waste,"
"hazardous substance," "pollutant," "contaminant," or
"biologically Hazardous Material" under any Environmental Law.
(iii) "Properties" means (1) the real estate owned or leased
by the Company and the Subsidiaries and used as a banking
related facility; (2) other real estate owned ("OREO") by the
Company or the Subsidiaries as defined by the Office of the
Comptroller of the Currency in 58 Federal Register 46529 (to
be codified at 12 CFR Part 34(E)) or as defined by any other
federal or state financial institution regulatory agency with
regulatory authority for the Company or the Subsidiaries; (3)
real estate that is in the process of pending foreclosure or
forfeiture proceedings conducted by the
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Company or the Subsidiaries; and (4) real estate that is held
in trust for others by the Subsidiaries of the Company.
(b) Except as previously disclosed in writing to Bancorp, to the
best knowledge of the Company after such inquiry and investigation as the
Company deems appropriate, there are no present or past conditions on the
Properties, involving or resulting from a past or present storage, spill,
discharge, leak, emission, injection, escape, dumping or release of any kind
whatsoever of any Hazardous Materials or from any generation, transportation,
treatment, storage, disposal, use or handling of any Hazardous Materials, that
may reasonably be expected to result in a material adverse effect on the
Company's consolidated business, financial condition or prospects.
(c) The Company and the Subsidiaries are in substantial compliance
with all applicable Environmental Laws. Neither the Company nor the
Subsidiaries have received notice of, nor to the best of their knowledge are
there outstanding or pending, any public or private claims, lawsuits,
citations, penalties, unsatisfied abatement obligations or notices or orders of
non-compliance relating to the environmental condition of the Properties, which
have or may have a material adverse effect on the Company's consolidated
business, financial condition or prospects.
(d) Except as previously disclosed in writing to Bancorp, to the
best knowledge of the Company after such inquiry and investigation as the
Company deems appropriate, no Properties are currently undergoing remediation
or clean-up of Hazardous Materials or other environmental conditions, the
actual or estimated cost of which may have a material adverse effect on the
Company's consolidated business, financial condition or prospects.
(e) To the best knowledge of the Company after such inquiry and
investigation as the Company deems appropriate, the Company and the
Subsidiaries have all governmental permits, licenses, certificates of
inspection and other authorizations governing or protecting the environment
necessary to conduct its present business. Further, the Company warrants and
represents that these permits, licenses, certificates of inspection and other
authorizations are fully transferrable, to the extent permitted by law, to
Bancorp.
3.21 Community Reinvestment Act. FSB has not received a rating
from the OTS which is less than "satisfactory" in its most recent examination
under the applicable provisions of the Community Reinvestment Act of 1977 and
the regulations promulgated thereunder, nor does the Company have any reason to
believe that FSB will receive a rating which will be less than "satisfactory"
in its next regulatory examination.
3.22 Advice of Changes. Between the date hereof and the Effective
Date of Merger, the Company shall promptly advise Bancorp in writing of any
fact
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which, if existing or known at the date hereof, would have been required to be
set forth or disclosed in or pursuant to this Agreement or of any fact which,
if existing or known at the date hereof, would have made any of the
representations contained herein materially untrue.
3.23 Approvals. The Company knows of no reason why all regulatory
approvals necessary to permit it to consummate the transactions contemplated
hereby in the manner provided herein should not be obtained or why the opinion
letter referred to in Section 6.2 hereof cannot be obtained.
ARTICLE IV
CERTAIN COVENANTS OF THE COMPANY
The Company covenants with Bancorp as follows:
4.1 Conduct of Business. Until the Effective Date of Merger, the
Company and each of the Subsidiaries will each conduct its affairs in the
ordinary course of business consistent with past and current practice, use its
best efforts to maintain and preserve its business organization, employees and
advantageous business relationships and to retain the services of its key
officers or employees. Neither the Company nor either of the Subsidiaries
shall, without the prior written consent of Bancorp, (i) enter into any
employment, severance or other personnel contract or plan with any director,
officer or employee, except for approval of renewal of existing agreements and
payment of bonuses in the normal course of business and consistent with past
practice, (ii) except for shares issued pursuant to the options disclosed
pursuant to Section 3.2, issue any capital stock or any security convertible
into capital stock, or grant any option, warrant or other rights to acquire
capital stock, effect any stock split, adjustment or recapitalization, or
otherwise alter its capital structure, (iii) propose or adopt any amendment to
its articles of incorporation, association or other charter document, (iv)
purchase, redeem, retire or otherwise acquire or dispose of any shares of its
capital stock, (v) take any action which would cause any significant decrease
in the book value of the shares of its capital stock or which would have a
material adverse affect on its financial condition, subject to the right of the
Company and the Subsidiaries to value assets in accordance with applicable
legal and accounting requirements, (vi) enter into any contract or arrangement
other than in the ordinary course of business, (vii) make or commit to make any
capital expenditure in an amount exceeding $100,000, or (viii) take any action
that would adversely effect or delay the ability of Bancorp or the Company to
obtain the approvals referred to in Section 6.3 or to perform any of the
covenants and agreements under this Agreement, or which would make any of the
representations and warranties made in this Agreement untrue or incorrect in
any material respect.
4.2 Tax Matters. The Company will seek to obtain an opinion of
legal counsel acceptable in form and content to Bancorp and the Company,
substantially
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to the effect that:
(i) The merger of the Company with and into Bancorp
Subsidiary will constitute a reorganization within the meaning of
Section 368(a)(1)(A) and Section 368(a)(2)(D) of the Internal Revenue
Code of 1986, as amended (the "Code"), and the Company, Bancorp
Subsidiary and Bancorp will each be a "party to a reorganization"
within the meaning of Section 368(b) of the Code.
(ii) The basis of the assets of the Company to be received by
Bancorp Subsidiary will be the same as the basis of those assets in
the hands of the Company immediately prior to the Merger.
(iii) The holding period of the assets of the Company to be
received by Bancorp Subsidiary will include the holding period of
those assets in the hands of the Company immediately prior to the
Merger.
(iv) No gain or loss will be recognized by Bancorp Subsidiary
and Bancorp upon receipt of the assets of the Company by Bancorp
Subsidiary in exchange for the consideration provided for in the
Merger Agreement and the assumption by Bancorp Subsidiary of the
liabilities of the Company.
(v) Bancorp Subsidiary will succeed to and take into account
the items of the Company described in Section 381(c) of the Code and
Bancorp Subsidiary will be the "acquiring corporation" within the
meaning of Section 1.381(a)-1(b)(2) of the regulations promulgated by
the Department of Treasury ("Treasury Regulations"). These items will
be taken into account by Bancorp Subsidiary subject to the conditions
and limitations specified in Sections 381, 382(b) and 383 of the Code
and the Treasury Regulations thereunder.
(vi) No gain or loss will be recognized by the Company upon
the transfer of its assets to Bancorp Subsidiary in exchange for the
consideration provided for in the Merger Agreement and the assumption
by Bancorp Subsidiary of the liabilities of the Company.
(vii) No gain or loss will be recognized by the shareholders
of the Company who receive shares of Bancorp Common Stock in exchange
for all of their shares of Company Common Stock, except to the extent
of any cash received in lieu of a fractional share of Bancorp Common
Stock.
(viii) The basis of Bancorp Common Stock to be received by
shareholders of the Company will, in each instance, be the same as the
basis of the shares of the Company Common Stock surrendered in
exchange therefor.
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(ix) The holding period of the Bancorp Common Stock received
by shareholders of the Company will, in each instance, include the
holding period of the shares of the Company Common Stock surrendered
in exchange therefor, provided that the Company Common Stock was, in
each instance, held as a capital asset in the hands of the shareholder
of the Company on the Effective Date of Merger.
(x) The payments of cash in lieu of fractional share
interests of Bancorp Common Stock will be treated as having been
received as distributions in full payment in exchange for the stock
redeemed as provided in Section 302(a) of the Code.
4.3 Agreements of Affiliates. As soon as practicable after this
Agreement is submitted to a vote of the stockholders of the Company (and in any
event at least 45 days prior to the Closing), the Company shall deliver to
Bancorp a letter identifying all persons whom the Company believes to be, at
such time, "affiliates" of the Company for purposes of Rule 145 under the
Securities Act. The Company shall use its best efforts to cause each person
who is so identified as an "affiliate" to deliver to Bancorp as soon as
practicable thereafter (and in any event no later than 30 days prior to the
Closing) a written agreement providing that from the date of such agreement
each such person will agree not to sell, pledge, transfer or otherwise dispose
of any shares of stock of the Company held by such person or any shares of
stock of Bancorp to be received by such person in the Merger except in
compliance with the applicable provisions of the Securities Act. Prior to the
Effective Date of Merger, the Company shall amend and supplement such letter
and use its best efforts to cause each additional person who is identified as
an "affiliate" to execute a written agreement as set forth in this Section 4.3.
ARTICLE V
ADDITIONAL AGREEMENTS
5.1 Bancorp's Registration Statement. Bancorp agrees to prepare
and file as soon as is reasonably practicable with the SEC under the Securities
Act, the Registration Statement and the related Proxy Statement included as a
part thereof covering the issuance by Bancorp of the shares of its Common Stock
contemplated by the Merger Agreement. The Company and Subsidiary shall
promptly provide Bancorp all information as Bancorp may reasonably request in
connection therewith.
5.2 Investigation. Bancorp and Company agree that each may
conduct a thorough due diligence investigation of the other party within 45
business days after the date of execution of this Agreement unless such period
is extended by written agreement of the parties. In the event either party
learns of any information or matters during such investigation that such party
believes may
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constitute or reveal a material breach of the other party's representations,
warranties, covenants or agreements contained herein, such party shall provide
the other party with a written notice within 15 days after completion of its
due diligence investigation contemplated by this Section 5.2 specifying the
information or matters learned and the basis upon which they may constitute or
reveal a material breach of the other party's representations, warranties,
covenants or agreements. No breach of representation, warranty, covenant or
agreement that is learned by a party pursuant to its investigation of the other
party contemplated by this Section 5.2 shall constitute a material breach of
representation, warranty, covenant or agreement by the other party under any
provision of or for any purpose under this Agreement and the information or
matters underlying such breach shall be deemed to have been fully disclosed in
such other party's disclosure pursuant to this Agreement, unless the party
learning of such breach provides the other party with a written notice relating
thereto delivered within the time period provided in the immediately preceding
sentence and such party exercises its right to terminate this Agreement on the
basis thereof in accordance with Section 8.1(ii). Each party agrees to treat
as strictly confidential during and after the investigation contemplated by
this Section 5.2 and agrees not to divulge to any other person, natural or
corporate (other than employees of, and attorneys and accountants for, such
party) any financial statements, schedules, contracts, agreements, instruments,
papers, documents and other information relating to the other party which it
may come to know or which may come into its possession during the course of
such investigation and, if the transactions contemplated hereby are not
consummated for any reason, each party agrees promptly to return to the other
party all written material furnished in connection with such investigation.
5.3 Press Releases. The Company and Bancorp shall consult with
each other with respect to the form and substance of any press release or other
public disclosure of matters related to this Agreement or any of the
transactions contemplated hereby.
5.4 Miscellaneous Agreements and Consents. Subject to the terms
and conditions herein provided, each of the parties hereto agrees to use all
reasonable efforts to take, or cause to be taken, all action, and to do, or
cause to be done, all things necessary, proper or advisable under applicable
laws and regulations to consummate and make effective the transactions
contemplated by this Agreement and the Merger Agreement as soon as reasonably
practicable. Bancorp and the Company will use their best efforts to obtain
consents of all third parties and governmental bodies necessary or desirable
for the consummation of the transactions contemplated by this Agreement and the
Merger Agreement as soon as reasonably practicable.
5.5 Indemnification. Bancorp agrees that all provisions for
indemnification now existing in favor of the employees, agents, directors or
officers of the Company and Subsidiaries as provided in their respective
certificate
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or articles of incorporation or other charter document or by-laws shall survive
the Merger and shall continue in full force and effect for a period of two
years with respect to acts or omissions occurring prior to the Effective Date
of Merger. Any liability insurance, self insurance plan or combination thereof
maintained by Bancorp for the benefit of its directors, officers and employees
shall be equally applicable to the directors, officers and employees and to the
former directors, officers and employees of Company or FSB for purposes of the
indemnification provided for hereunder. In the event of any claim or
litigation giving rise to such indemnification, Bancorp will provide the
indemnified party with reasonable access to and the right to copy all documents
and other information relating to the subject matter of the litigation and will
reasonably cooperate in the defense of such litigation. An employee, agent,
director or officer of the Company or Subsidiary seeking indemnification
pursuant to the provisions of the Company's or Subsidiary's certificate or
articles of incorporation or by-laws shall be entitled to have the resolution
of any dispute regarding the right to and the extent of the indemnification,
including without limitation the right to the advancement of or the
reimbursement of legal fees and expenses related to such claim or litigation,
resolved by an arbitrator selected by Bancorp and the indemnified party in
accordance with the rules of the American Arbitration Association.
5.6 Stock Options. With respect to officers and employees holding
options of the Company who shall remain in the employ of Bancorp or an
affiliate subsequent to the Merger, each option to purchase Common Stock of the
Company which is outstanding immediately prior to the Merger shall be converted
into and represent an option to purchase, at an exercise price of $10.00 per
share, a number of shares of Bancorp Common Stock equal to a fraction, the
numerator of which shall be equal to $45.00 and the denominator of which shall
be equal to the average closing price per share of Bancorp Common Stock as
reported on the New York Stock Exchange Composite Tape for the five trading
days ending on the fifth trading day prior to the Effective Date of Merger.
With respect to directors of the Company as well as officers and employees
holding options of the Company whose service shall terminate upon the Merger,
each option to purchase Common Stock of the Company which is outstanding
immediately prior to the Merger shall be converted into a number of shares of
Bancorp Common Stock equal to a fraction, the numerator of which shall be equal
to $35.00 and the denominator of which shall be equal to the average closing
price per share of Bancorp Common Stock as reported on the New York Stock
Exchange Composite Tape for five trading days ending on the fifth trading day
prior to the Effective Date of the Merger.
5.7 Employment Agreements, Severance and Benefit Plans. Bancorp
agrees to honor existing employment and special termination agreements between
the Company and FSB and certain officers as described in Schedule 5.7
(collectively, the "Employment Agreements"). Each employee of the Company or
FSB (other than employees who are subject to the Employment Agreements) who is
terminated from employment, other than for cause, following the Effective
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Date of Merger will be provided salary continuation payments for such period
(the "Salary Continuation Period") and under the terms and conditions of FSB's
Employee Severance Compensation Plan as in effect on the date of this
Agreement, a copy of which has been previously provided to Bancorp. For
purposes of determining entitlement to benefits under such policy, each such
terminated employee will be credited for periods of full-time service with the
Company or FSB prior to the Effective Date of Merger. During the Salary
Continuation Period, such employees will continue to participate in Bancorp's
employee medical coverage for a period of six months following termination.
Bancorp maintains a 401(k) plan (the "NBD Savings and Investment
Plan"), a defined benefit retirement plan (the "NBD Retirement Plan"), and a
flexible benefits program (the "NBD New Benefit Directions program"),
collectively referred to herein as the "NBD Plans". As soon as practicable
following the Effective Date of Merger, the Company and FSB's Retirement Plan
shall be merged with and into the NBD Retirement Plan and the Company and FSB's
401(k) plan shall be merged with and into the NBD Savings and Investment Plan.
All eligible employees of the Company or FSB shall participate in the NBD New
Benefit Directions program as soon as is practicable following the Effective
Date of Merger. No Company or FSB employee presently participating in Company
or FSB's medical plan will be precluded from participating in medical plans
under the NBD New Benefit Directions program on account of a pre-existing
medical condition. For purposes of determining eligibility to participate and
vesting rights under the NBD Plans, all of an employee's service with the
Company or FSB shall be counted as credited service. Nothing herein shall
obligate Bancorp to provide benefits which are duplicative of benefits provided
under any plan of the Company or FSB which is continued for any period after
the Effective Date of Merger, nor to prohibit Bancorp from subsequently
amending or terminating any benefit plan or program. This Agreement shall not
confer upon any Company or FSB employee any rights or remedies and shall not
constitute an offer or contract of employment with Bancorp or any Bancorp
subsidiary.
5.8 ESOP. Notwithstanding the provisions of Section 5.7, on or as
soon as practicable after the Effective Date of Merger, the FSB Employee Stock
Ownership Plan and Trust (the "ESOP") shall be terminated, all accrued benefits
shall be fully vested and nonforfeitable (which benefits shall become fully
vested and nonforfeitable as of the Effective Date of Merger), and distribution
thereof shall be made to the accounts of those FSB employees who are
participants and beneficiaries and such other participants and beneficiaries,
if any (such FSB employees and participants and benefits hereafter, the "ESOP
Participants"), pursuant to the terms of the ESOP. From and after the date of
this Agreement to the Effective Date of Merger, in anticipation of such
termination and distribution, Bancorp, Company, FSB, and their respective
representatives shall use their best efforts, and after the Effective Date of
Merger, Bancorp and its representatives shall use their best efforts, to cause
FSB and its subsidiary to amend the ESOP and take other necessary and
appropriate action to apply the Bancorp Common
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Stock received by the ESOP with respect to unallocated shares of Company Common
Stock to repay the outstanding securities acquisition loan, to allocate the
amount of such Bancorp Common Stock in excess of the balance of such loan to
the accounts of ESOP Participants in proportion to their account balances as of
the Effective Date of Merger, to distribute such accounts as described above,
and to maintain the status of the ESOP as a plan qualified under Section 401(a)
and 4975 of the Code. In the event that Bancorp reasonably determines that the
ESOP cannot be so amended or the amounts held thereby so applied, allocated and
distributed without causing the ESOP to lose its qualified status, Bancorp
shall take such action as it may determine with respect to the liquidation of
the ESOP, provided that the assets of the ESOP shall be held or paid for the
benefit of the ESOP Participants, and provided, further, in no event shall
Bancorp cause any portion of the amounts held in the ESOP to revert, directly
or indirectly, to Bancorp or any affiliate thereof.
ARTICLE VI
CONDITIONS PRECEDENT TO OBLIGATIONS
OF BANCORP AND BANCORP SUBSIDIARY
All obligations of Bancorp and Bancorp Subsidiary under this Agreement
are subject to the fulfillment (or waiver in writing by a duly authorized
officer of Bancorp), prior to or at the Closing, of each of the following
conditions:
6.1 Renewal of Representations and Warranties, Etc. The Company's
representations and warranties contained in this Agreement shall be deemed to
have been made again at and as of the time of the Closing, and shall then be
true in all material respects; the Company shall have performed and complied
with all agreements, conditions and covenants required by this Agreement to be
performed or complied with by the Company, prior to or at the Closing; and
Bancorp shall have been furnished with a certificate of the Chief Executive
Officer and the Secretary of the Company, dated the Closing Date, certifying in
such detail as Bancorp may reasonably request to the fulfillment, to the best
of the knowledge of such officers, of the foregoing conditions.
6.2 Opinion of Legal Counsel. The Company shall have delivered to
Bancorp an opinion, dated the Closing Date, satisfactory to counsel for
Bancorp, of Muldoon, Murphy & Faucette, counsel for the Company, to the effect
that:
(i) The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware
and has corporate power to carry on its business as described in the
Proxy Statement.
(ii) Each of the Subsidiaries is duly organized, validly
existing and in good standing under the laws of the jurisdiction of
its incorporation and
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has corporate power to carry on its business as described in the Proxy
Statement; and the Company directly or indirectly owns all of the
outstanding capital stock of each of the Subsidiaries.
(iii) The execution, delivery and performance of this
Agreement and the Merger Agreement and the consummation of the Merger
as provided in the Merger Agreement by the Company have been duly
authorized and approved by all requisite action of the Company's Board
of Directors and its shareholders; this Agreement and the Merger
Agreement have been duly executed and delivered by the Company and
constitute the legal, valid and binding obligations of the Company,
enforceable against it in accordance with their terms, subject to the
effect of applicable bankruptcy, insolvency or other laws affecting
the enforcement of creditors' rights generally and to general
principles of equity; and, to the best knowledge of such counsel after
due inquiry, the consummation by the Company of the transactions
contemplated by this Agreement and the Merger Agreement will not
result in any breach or violation of, or default under, any judgment,
decree, mortgage, agreement, indenture or other instrument applicable
to the Company or the Subsidiaries and which would be material to the
Company and the Subsidiaries taken as a whole.
(iv) All other actions and proceedings required by law or
this Agreement and the Merger Agreement to be taken by the Company at
or prior to the Closing in connection with this Agreement and the
Merger Agreement and the transactions provided for thereby, have been
duly and validly taken.
(v) All such approvals, consents, authorizations or
modifications as may, to the knowledge of such counsel, be required to
permit the performance by the Company of its obligations under this
Agreement and the Merger Agreement and consummation of the
transactions herein contemplated have been obtained (whether from
governmental authorities or other persons).
(vi) Such counsel does not know, except as set forth in the
opinion, of any litigation, proceeding or governmental investigation
pending or in prospect or threatened against or relating to the
Company or the Subsidiaries or its or their respective properties or
businesses, or the transactions contemplated by this Agreement, which
will result in any material liability to the Company and the
Subsidiaries taken as a whole.
Such opinion shall also cover such other matters incident to the
transactions herein contemplated as Bancorp and its counsel may reasonably
request. In rendering its opinion, counsel for the Company may rely on
certificates of officers of the Company or the Subsidiaries, opinions of other
counsel and such other evidence as such counsel for the Company may deem
necessary
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or desirable.
6.3 Required Approvals. Bancorp shall have received (i) all such
approvals, consents, authorizations and licenses of all regulatory and other
governmental authorities having jurisdiction as may be required to permit the
performance by the Company, Bancorp and Bancorp Subsidiary of their obligations
under this Agreement and the Merger Agreement and consummation of the
transactions herein contemplated, without any conditions which in the
reasonable opinion of Bancorp or the Company are materially adverse, and such
approvals shall not have been withdrawn or stayed, and all statutory waiting
periods shall have expired; and (ii) evidence of the requisite approval of the
shareholders of the Company of the Merger Agreement and the consummation of the
transactions herein contemplated.
6.4 Tax Matters. The Company shall have received a favorable
opinion of legal counsel acceptable in form and content to Bancorp and to the
Company as to the matters described in Section 4.2.
6.5 Registration Statement. The Registration Statement shall have
been declared effective by the SEC and shall not be subject to a stop order or
any threatened stop order.
6.6 Order, Decree, Etc. Neither Bancorp nor Bancorp Subsidiary
shall be subject to any order or decree of a court or agency of competent
jurisdiction which enjoins or prohibits the consummation of the Merger.
6.7 Listing. The shares of Bancorp Common Stock to be delivered
to the shareholders of the Company pursuant to the Merger Agreement shall have
been listed, subject to official notice of issuance, on the New York Stock
Exchange.
ARTICLE VII
CONDITIONS PRECEDENT TO THE COMPANY'S OBLIGATIONS
All obligations of the Company under this Agreement are subject to the
fulfillment (or waiver in writing by a duly authorized officer of the Company),
prior to or at the Closing, of each of the following conditions:
7.1 Renewal of Representations and Warranties, Etc. Bancorp's
representations and warranties contained in this Agreement shall be deemed to
have been made again at and as of the time of the Closing, and shall then be
true in all material respects; Bancorp shall have performed and complied with
all agreements, conditions and covenants required by this Agreement to be
performed or complied with by Bancorp prior to or at the Closing; and the
Company shall have been furnished with a certificate of appropriate officers of
Bancorp, dated the
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Closing Date, certifying in such detail as the Company may reasonably request
to the fulfillment, to the best of the knowledge of such officers, of the
foregoing conditions.
7.2 Opinion of Legal Counsel. Bancorp shall have delivered to the
Company an opinion, dated the Closing Date, satisfactory to counsel for the
Company, of counsel for Bancorp (which may be its in-house counsel) to the
effect that:
(i) Bancorp is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware and has
corporate power to carry on its business as and where conducted.
(ii) Bancorp Subsidiary is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Delaware, is qualified to transact business as a foreign corporation
in the State of Illinois and has corporate power to carry on its
business as and where conducted.
(iii) The execution, delivery and performance of this
Agreement and the Merger Agreement, and the issuance of shares of
Bancorp Common Stock pursuant to the Merger Agreement, have been duly
authorized and approved by all requisite action of the Board of
Directors of Bancorp or its delegate; the execution, delivery and
performance of this Agreement and the Merger Agreement, and the
consummation of the Merger as provided in the Merger Agreement, by
Bancorp Subsidiary have been duly authorized by all requisite action
of Bancorp Subsidiary's Board of Directors and its sole shareholder;
and this Agreement has been duly executed and delivered by Bancorp and
Bancorp Subsidiary, and the Merger Agreement has been duly executed
and delivered by Bancorp (as a parent party corporation and not as a
constituent corporation) and by Bancorp Subsidiary, and both this
Agreement and the Merger Agreement constitute the legal, valid, and
binding obligations of Bancorp and Bancorp Subsidiary, enforceable
against them in accordance with their terms, subject to the effect of
applicable bankruptcy, insolvency or other laws affecting the
enforcement of creditors' rights generally and to general principles
of equity.
(iv) All other actions and proceedings required by law or
this Agreement to be taken by Bancorp or Bancorp Subsidiary at or
prior to the Closing in connection with this Agreement and the Merger
Agreement and the transactions provided for thereby have been duly and
validly taken.
(v) All such approvals, consents, authorizations or
modifications as may, to the knowledge of such counsel, be required to
permit the performance by Bancorp and Bancorp Subsidiary of their
respective
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obligations under this Agreement and consummation of the transactions
herein contemplated have been obtained (whether from governmental
authorities or other persons).
(vi) Such counsel does not know, except as set forth in the
opinion, of any material litigation, proceeding or governmental
investigation pending or in prospect or threatened against or relating
to Bancorp or any of its subsidiaries, to its or their properties or
businesses or to the transactions contemplated by this Agreement,
which will result in any material liability to Bancorp and its
subsidiaries taken as a whole.
(vii) The shares of Bancorp Common Stock issued by Bancorp as
contemplated by the Merger Agreement, and to be delivered to the
shareholders of the Company, are duly and validly issued, fully paid
and nonassessable, and have not been issued in violation of any
preemptive rights of shareholders.
Such opinion shall also cover such other matters incident to the
transactions herein contemplated as the Company and its counsel may reasonably
request. In rendering its opinion, Bancorp Counsel may rely on certificates of
officers of Bancorp and its subsidiaries, opinions of other counsel and such
other evidence as such counsel for Bancorp may deem necessary or desirable.
7.3 Tax Matters. The Company shall have received a favorable
opinion of legal counsel acceptable in form and content to Bancorp and to the
Company as to the matters described in Section 4.2.
7.4 Required Approvals. The Company shall have received all such
approvals, consents, authorizations or modifications as may be required to
permit the performance by the Company of its obligations under this Agreement
and the Merger Agreement and the consummation of the transactions herein
contemplated, without any conditions which in the reasonable opinion of Bancorp
and the Company are materially adverse, and such approval shall not have been
withdrawn or stayed, and all statutory waiting periods shall have expired.
7.5 Registration Statement. The Registration Statement shall have
been declared effective by the SEC and shall not be subject to a stop order or
any threatened stop order.
7.6 Order, Decree, Etc. The Company shall not 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.
7.7 Listing. The shares of Bancorp Common Stock to be delivered
to the shareholders of the Company pursuant to the Merger Agreement shall have
been listed, subject to official notice of issuance, on the New York Stock
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Exchange.
7.8 Fairness Opinion. An opinion shall have been received by the
Company from The Chicago Corporation prior to distribution of the Proxy
Statement to the stockholders of the Company as required by Sections 2.13 and
5.1 of this Agreement, to the effect that the consideration to be received by
the Company's stockholders pursuant to this Agreement is fair to the
stockholders of the Company from a financial point of view, and such opinion
shall not have been withdrawn or materially modified prior to the vote of the
stockholders.
ARTICLE VIII
TERMINATION
8.1 Termination Provisions. This Agreement may be terminated and
the Merger Agreement and the Merger abandoned at any time prior to the
Effective Date of Merger (notwithstanding that approval by shareholders of the
Company or Bancorp Subsidiary may have been obtained pursuant to this
Agreement) as follows:
(i) Mutual Consent. By mutual consent of Bancorp and the
Company.
(ii) Material Breach. By either Bancorp or Company in the
event (A) any representation or warranty of the other party contained
herein is or becomes materially inaccurate or any covenant or
agreement of either party is materially breached, (B) the non-
breaching party provides the breaching party with a written notice
relating thereto within the time period provided by Section 5.2, (C)
the breaching party fails to cure such inaccuracy or breach within 60
days of its receipt of such written notice, and (D) the non-breaching
party provides the breaching party with a written notice of
termination within 10 days after the earlier of the expiration of such
60-day period or the date it receives a written notice from the
breaching party stating that it is unable or unwilling to cure such
inaccuracy or breach.
(iii) Expiration Date. By either Bancorp or the Company if
the Merger has not been consummated on or before March 31, 1995.
(iv) Court Orders. By either Bancorp or the Company if a
final unappealable injunction or other judgment shall have been issued
by a court of competent jurisdiction restraining or prohibiting
consummation of the transactions contemplated by this Agreement.
(v) Governmental Approvals. By either Bancorp or the Company
if the Federal Reserve Board or its delegate, the OTS, the FDIC or the
27
<PAGE> 28
cognizant authority of the State of Michigan or the State of Illinois
shall have refused to approve the Merger or shall have conditioned an
approval of the Merger in a manner not reasonably satisfactory to
Bancorp, provided that Bancorp shall have the right to initiate and
pursue expeditiously an appeal from any such refusal or imposition of
an unsatisfactory condition and, in the event of such appeal, such
refusal or imposition of condition shall be deemed not to have been
made until the termination by Bancorp of such appeal or the time that
such refusal or imposition of a condition has become final and
non-appealable.
8.2 Approval by Board of Directors. Any such termination shall be
approved by the Board of Directors or its delegate of the party seeking
termination.
ARTICLE IX
AMENDMENT AND WAIVER
9.1 Amendment. This Agreement may be amended by the parties
hereto, by action taken by their respective Boards of Directors or their
delegates, at any time before or after adoption of the Merger Agreement by the
shareholders of the Company; provided, however, that after such adoption by the
shareholders of the Company, no such amendment shall alter or change the amount
or kind of consideration to be received in exchange for or on conversion of all
or any of the shares of any class or series thereof of the Company or alter or
change any of the terms and conditions of the Merger Agreement if such
alteration or change would adversely affect the holders of any class or series
of capital stock of the Company. This Agreement and the Merger Agreement may
not be amended except by an instrument in writing signed on behalf of each of
the parties hereto.
9.2 Waiver. Subject to applicable provisions of the Delaware Act,
any of the terms or conditions of this Agreement may be waived at any time by
whichever of the parties is, or the shareholders of which are, entitled to the
benefit thereof, by action taken by the Board of Directors of such party or its
delegate. The failure of any party at any time or times to require performance
of any provision hereof shall in no manner affect such party's right at a later
time to enforce the same. No waiver by any party of any condition, or of the
breach of any agreement, covenant, representation or warranty contained in this
Agreement, whether by conduct or otherwise, in any one or more instances shall
be deemed to be or construed as a further or continuing waiver of any such
condition or breach or a waiver of any other condition or of the breach of any
other agreement, covenant, representation or warranty.
ARTICLE X
MISCELLANEOUS
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<PAGE> 29
10.1 Expenses. Each party hereto shall pay its own expenses
incident to preparing for, entering into and carrying out this Agreement and
the consummation of the Merger. In the event that this Agreement shall
terminate prior to the Effective Date of Merger by virtue of the ground set
forth in clause (ii) of Section 8.1, the party causing such breach agrees to
reimburse the other party for all reasonable expenses incurred by such party in
connection with the transactions contemplated by this Agreement.
10.2 Termination of Representations and Warranties. All
representations, warranties and agreements of Bancorp and the Company, other
than those set forth in Sections 2.9, 2.13 (with respect to information
supplied by Bancorp for inclusion, or incorporated by reference, in the
Registration Statement or the Proxy Statement), 5.2 and 5.5 shall expire with,
and be terminated and extinguished by, the consummation of the transactions
contemplated hereby on the Effective Date of Merger.
10.3 Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if delivered or mailed, registered or certified mail, postage
prepaid, as follows:
If to Bancorp or Bancorp Subsidiary:
Louis Betanzos, Executive Vice President
NBD Bancorp, Inc.
611 Woodward Avenue
Detroit, Michigan 48226
with a copy to:
Daniel T. Lis, Senior Vice President
NBD Bancorp, Inc.
611 Woodward Avenue
Detroit, Michigan 48226
If to the Company:
Robert B. Breidert, President
and Chief Executive Officer
AmeriFed Financial Corp.
4 Scott Street
Joliet, Illinois 60431
with a copy to:
John Bruno, Esquire
Muldoon, Murphy & Faucette
29
<PAGE> 30
5101 Wisconsin Avenue N.W.
Washington, D.C. 20016
10.4 Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of Delaware.
10.5 Entire Agreement. This Agreement and the Merger Agreement and
the documents, schedules and letters described herein or therein or attached or
delivered pursuant hereto or thereto set forth the entire agreement and
understanding of the parties in respect of the transactions contemplated hereby
and supersede all prior agreements, arrangements and understandings related to
the subject matter hereof.
10.6 Method of Consent or Waiver. Any consent hereunder or any
waiver of conditions or covenants as may be herein provided for, subject to all
of the other requirements contained in this Agreement, shall be evidenced in
writing, properly executed by the Chairman, the Chief Executive Officer, the
President or one of the Vice Presidents of the party so electing hereunder, and
such documents shall be attested to by the Secretary or an Assistant Secretary
of the party so electing hereunder.
10.7 Liability of Bancorp and the Company. In the event the Merger
is not consummated because one or more of the conditions to the obligations of
any party under this Agreement have not been fulfilled, despite the best
efforts of the other parties, or in the event this Agreement is terminated and
the Merger Agreement is abandoned pursuant to Article VIII, none of Bancorp,
Bancorp Subsidiary or the Company shall incur any liability whatsoever under or
pursuant to this Agreement or the Merger Agreement except pursuant to the
provisions of Section 10.1 relating to expenses.
10.8 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
10.9 Headings, Etc. The cover page, Article headings and Section
headings contained in this Agreement are inserted for convenience only and
shall not affect in any way the meaning or interpretation of this Agreement.
10.10 Assignment. The parties hereby agree that the rights and duties
of Bancorp Subsidiary hereunder may be assigned and delegated to a newly formed
wholly-owned subsidiary of Bancorp or to Bancorp itself at any time if Bancorp
determines in its sole discretion that such assignment and delegation is
desirable to effect the transactions contemplated in this Agreement.
IN WITNESS WHEREOF, the undersigned parties hereto have duly executed
this Agreement as of the date first above written.
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<PAGE> 31
ATTEST: NBD BANCORP, INC.
By /s/ Richard J. McCullen By /s/ James R. Lancaster
--------------------------- ---------------------------
James R. Lancaster
Executive Vice President
ATTEST: NBD ILLINOIS, INC.
By /s/ Richard J. McCullen By /s/ James R. Lancaster
--------------------------- ---------------------------
James R. Lancaster
President
ATTEST: AMERIFED FINANCIAL CORP.
By /s/ Stephen J. Morrissette By /s/ Robert B. Breidert
--------------------------- ---------------------------
Robert B. Breidert
President and Chief Executive Officer
31
<PAGE> 1
EXHIBIT (5)
[NBD Bancorp, Inc. letterhead]
September 30, 1994
Securities and Exchange Commission
Judiciary Plaza, 450 Fifth Street, N.W.
Washington, D.C. 20549
Ladies and Gentlemen:
I am acting as counsel for NBD Bancorp, Inc., a Delaware corporation ("NBD"),
in connection with the merger (the "Merger") of AmeriFed Financial Corp., a
Delaware corporation ("AFFC"), into NBD Illinois, Inc., a Delaware corporation
and a wholly-owned subsidiary of NBD. Pursuant to the terms of the Merger,
each outstanding share of AFFC Common Stock will be converted into shares of
NBD Common Stock.
The shares of NBD Common Stock for which shares of AFFC Common Stock may be
exchanged pursuant to the terms of the Merger are being registered on a Form
S-4 Registration Statement ("Registration Statement"), which is being filed by
NBD with the Securities and Exchange Commission under the Securities Act of
1933, as amended.
In preparation for rendering my opinions hereafter expressed, I have examined
the originals or copies, certified to my satisfaction, of such corporate
records and other documents and certificates as I deemed necessary.
Based upon the above, I am of the opinion that:
1. NBD is a corporation duly organized and validly existing under and
pursuant to the laws of the State of Delaware.
2. The shares of NBD Common Stock which are covered by the Registration
Statement and which may be issued pursuant to the terms of the Merger
as described in the Registration Statement, when issued, will be
legally issued, fully paid and non-assessable.
I hereby consent to the use of this opinion as Exhibit 5 to the Registration
Statement and to the use of my name under the caption "Legal Matters" in the
Registration Statement.
Very truly yours,
/s/ Daniel T. Lis
- ----------------------
Daniel T. Lis
Senior Vice President
Secretary and Legal Counsel
<PAGE> 1
EXHIBIT (8)
[Muldoon, Murphy & Faucette letterhead]
September 30, 1994
Board of Directors
AmeriFed Financial Corp.
120 North Scott Street
Joliet, Illinois 60431
Board of Directors
AmeriFed Bank, FSB
120 North Scott Street
Joliet, Illinois 60431
Re: Federal Tax Consequences of the Merger of AmeriFed Financial
Corp. with and into NBD Illinois
Gentlemen:
You have requested an opinion on the federal income tax consequences
of the proposed merger of AmeriFed Financial Corp. ("AmeriFed") with and into
NBD Illinois ("NBD Illinois"), all pursuant to an Agreement and Plan of
Reorganization dated March 23, 1994 (the "Plan of Reorganization"). We note at
the outset that there may be other taxes which could be applicable in
connection with the Merger as to which we render no opinion.
The proposed transaction is described in the section of this letter
entitled "STATEMENT OF FACTS," and the federal income tax consequences of the
proposed transaction will be as set forth in the section of this letter
entitled "OPINION."
STATEMENT OF FACTS
AmeriFed, a Delaware corporation with its principal place of business
in Joliet, Illinois, is a registered savings and loan holding company
registered under the Home Owners' Loan Act, as amended. AmeriFed owns 100
percent of the shares of AmeriFed Bank, FSB, a federally-chartered stock
savings bank ("AmeriFed Bank").
NBD, a Delaware corporation with its principal place of business in
Detroit, Michigan, is a registered bank holding company registered under the
Bank
<PAGE> 2
Holding Company Act of 1956, as amended. NBD owns 100 percent of NBD Illinois,
a Delaware chartered bank holding company. NBD Illinois owns 100 percent of
the stock of NBD Bank, an Illinois-chartered commercial bank.
AmeriFed, NBD Illinois and NBD have entered into the Merger Agreement,
which provides for the merger of AmeriFed into NBD Illinois (the "Merger"),
with NBD Illinois surviving such Merger in accordance with the applicable laws
of the State of Delaware and in accordance with the Plan of Reorganization
dated March 23, 1994 (the "Merger Agreement"). On August 22, 1994, NBD Bank
and AmeriFed Bank entered into an agreement of Merger pursuant to which
AmeriFed Bank will be merged with and into NBD Bank as soon as practicable
following the consummation of the Merger, in a transaction that satisfies the
requirements of Section 5(d)(3) of the Federal Deposit Insurance Act (the "Bank
Subsidiary Merger").
On the closing date (the "Effective Date of the Merger"), AmeriFed
shall merge with and into NBD Illinois; NBD Illinois shall be the surviving
corporation in the Merger; and all of the property, rights, powers and duties
and obligations of AmeriFed shall be taken and deemed to be transferred to and
vested in NBD Illinois, as the surviving corporation in the Merger, all in
accordance with the applicable laws of the State of Delaware. As soon as
practicable following the Effective Date of the Merger, AmeriFed Bank will
merge with and into NBD Bank in the Bank Subsidiary Merger.
Under the Merger Agreement, AmeriFed will be merged with and into NBD
Illinois, a wholly-owned subsidiary of NBD. The Merger Agreement sets forth
the terms upon which the Merger will be effected. The Plan of Reorganization
sets forth various representations, warranties and covenants of the parties
relating to the consummation of the Merger, conditions which must be satisfied
before the Merger may be consummated and grounds for termination of the Merger.
The Merger Agreement and the Plan of Reorganization relate to the same
transaction.
The obligations of NBD, NBD Illinois and AmeriFed to cause the Merger
to be consummated are subject to the following conditions, among others: (i)
approval of the Merger Agreement by the stockholders of AmeriFed; (ii) approval
of the Merger by all requisite government regulatory authorities; (iii)
delivery of Officers' certificates by each party certifying as to
representations and warranties made by each party; and (iv) delivery of certain
legal opinions, including a favorable tax opinion.
Upon consummation of the Merger, each outstanding share of AmeriFed
Common Stock (other than shares owned by NBD, NBD Illinois or AmeriFed, which
will be cancelled) will be automatically converted, and exchanged for a number
of shares of NBD Common Stock equal to a fraction, the numerator of which shall
be equal to $45.00, and the denominator of which shall be equal to
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<PAGE> 3
the average closing price per share of NBD Common Stock as reported on the NYSE
Composite Tape for the five trading days ending on the fifth trading day prior
to the Effective Date of Merger, as defined in the Merger Agreement.
Each holder of a certificate or certificates representing shares of
AmeriFed Common Stock who would have been entitled to receive a fraction of a
share of NBD Common Stock (after aggregating all AmeriFed Common Stock
represented by such certificate or certificates then delivered by such holder)
shall receive, in lieu thereof, an amount of cash (without interest) determined
by multiplying such fraction by the average closing price of a whole share of
NBD Common Stock on the NYSE Composite Tape during the five trading days ending
on the fifth trading day prior to the Effective Date of Merger.
As promptly as practicable after the Effective Time of the Merger, NBD
will cause appropriate transmittal materials to be mailed to each AmeriFed
stockholder of record on the Effective Date of Merger for the purpose of
exchanging his or her share certificates. NBD or State Street Bank and Trust
Company, as exchange agent (the "Exchange Agent"), will mail or deliver to each
former AmeriFed stockholder his or her certificates representing AmeriFed
Common Stock, a certificate or certificates representing the number of whole
shares of NBD Common Stock to which the stockholder is entitled plus a check in
the amount of cash paid in lieu of fractional shares. The Merger Agreement
provides that after the Effective Date of Merger and until AmeriFed Common
Stock certificates are exchanged, no dividend payable with respect to NBD
Common Stock will be paid to the holders of certificates previously
representing AmeriFed Common Stock. Upon exchange of such certificates,
however, there will be paid the amount (without interest and less the amount of
taxes, if any, which may have been imposed or paid thereon) of all dividends,
if any, which shall have been declared and paid after the Effective Date of
Merger with respect to the shares of NBD Common Stock issuable under the Merger
Agreement in respect of the AmeriFed Common Stock represented by such
surrendered certificates.
After the Effective Date of Merger, there will be no further transfer
on the books of AmeriFed of certificates theretofore representing AmeriFed
Common Stock and, if such certificates are presented for transfer, they will be
cancelled against delivery of certificates for NBD Common Stock. The shares of
NBD Common Stock that will be utilized in the Merger may be authorized and
unissued shares and/or treasury shares.
AmeriFed maintains an incentive stock option plan, a director stock
option plan, and certain recognition and retention plans. Such plans provide
for an immediate acceleration of the vesting period for benefits payable under
the plans upon a change in control. The Merger will constitute a change in
control under such plans.
3
<PAGE> 4
Additionally, pursuant to the terms of the Plan of Reorganization with
respect to officers and employees of AmeriFed or AmeriFed Bank who will remain
employed by NBD Illinois or any of its subsidiaries, each option granted by
AmeriFed to purchase shares of AmeriFed Common Stock which is outstanding and
unexercised immediately prior to the Effective Date of Merger shall be
converted automatically into an option to purchase, at an exercise price of
$10.00 per share, a number of shares of NBD Common Stock equal to a fraction,
the numerator of which shall be equal to $45.00 and the denominator of which
shall be equal to the average closing price per share of NBD Common Stock as
reported on the NYSE Composite Tape for five trading days ending on the fifth
trading day prior to the Effective Date of the Merger. With respect to
directors of AmeriFed or AmeriFed Bank as well as officers and employees of
AmeriFed or AmeriFed Bank holding options of AmeriFed whose service will
terminate upon the Merger, each option to purchase shares of AmeriFed Common
Stock which is outstanding and unexercised immediately prior to the Effective
Date of Merger shall be converted automatically into a number of shares of NBD
Common Stock equal to a fraction, the numerator of which shall be equal to
$35.00 and the denominator of which shall be equal to the average closing price
per share of NBD Common Stock as reported on the NYSE Composite Tape for five
trading days ending on the fifth trading day prior to the Effective Date of the
Merger.
The Plan of Reorganization provides that, after the Effective Date of
Merger, employees and officers of AmeriFed who become employees of NBD or its
subsidiaries shall be entitled to participate in NBD's pension, benefit and
similar plans on the same terms and conditions as employees and officers of
NBD, giving effect to year of service with AmeriFed as if such service were
with NBD.
The Plan of Reorganization provides that each employee who is
terminated will receive salary continuation payments under the terms of the
AmeriFed Severance Compensation Plan (the "Severance Plan"). Under the
Severance Plan, in the event a change in control of AmeriFed or AmeriFed Bank
occurs, participants in the Severance Plan who are terminated will be entitled
to receive a severance payment. If the participant whose employment has
terminated has completed at least five years of service, the participant will
be entitled to a cash severance payment equal to one-twelfth of the
compensation paid during the 12 months preceding the participant's termination
for each year of employment with AmeriFed Bank, up to a maximum of 24 months of
payment.
The Plan of Reorganization provides for the termination of the
AmeriFed ESOP whereby all accrued benefits shall be distributed to the accounts
of participants.
* * *
4
<PAGE> 5
You have also provided some of the following representations concerning
this transaction. NBD and NBD Illinois have provided some of the following
representations. For purposes of these representations only, the term "the
Company" refers to AmeriFed; the term "the Company Bank" refers to AmeriFed
Bank; the term "the Acquiror" refers to NBD; the term "the Acquiring
Subsidiary" refers to NBD Illinois; and the term "Acquiring Bank" refers to NBD
Bank:
(a) The Merger of the Company into the Acquiring Subsidiary will
satisfy the applicable statutory requirements of the State of
Delaware. Furthermore, the Merger will comply with the
regulations and any other legal requirements imposed by the
Delaware state statutes.
(b) As of the date hereof, the facts which relate to the Merger
and related transactions and described in the Form S-4
Registration Statement, insofar as such facts pertain to the
Company and the Company Bank, are true, correct and complete
and, insofar as such facts pertain to the Acquiror, and the
Acquiring Subsidiary and the Acquiror Bank, the management of
the Company has no reason to believe that such facts are
untrue, incorrect or incomplete.
(c) The Merger will be carried out strictly in accordance with the
Merger Agreement, as described in the Form S-4 Registration
Statement.
(d) As of the Effective Date of the Merger, the former
shareholders of the Company will have a continuing interest
through ownership of stock of the Acquiror that was received
pursuant to the Merger equal in value to at least 50 percent
of the total value of all of the formerly outstanding stock of
the Company as of the same date.
(e) The authorized capital stock of the Company consists of
6,000,000 shares of Common Stock, $.01 par value, of which, as
of March 22, 1994, 3,068,231 shares of Common Stock were
issued and outstanding, fully paid and nonassessable; and
1,500,000 shares of Preferred Stock, $.01 par value, of which
no shares are issued and outstanding. Except as disclosed in
the Plan of Reorganization, there are no other outstanding
subscriptions, options, warrants, agreements, understandings
or arrangements to which the Company is a party or by which it
is or may become bound relating to its authorized or issued
capital stock, or pursuant to which the Company may be
obligated to issue additional shares of capital stock.
(f) The aggregate fair market value of the consideration to be
received in the Merger by each holder of the Company Common
Stock will be approximately equal to the aggregate fair market
value of the
5
<PAGE> 6
Company Common Stock surrendered in exchange therefor, as
determined by arm's length negotiations between the
managements of the Company and the Acquiring Subsidiary. No
holder of Company Common Stock will receive in exchange for
such stock, directly or indirectly, any consideration other
than Acquiror Common Stock and cash paid in lieu of a
fractional share of Acquiror Common Stock.
No cash or other property will be paid to any shareholder of
the Company (or the Company Bank pursuant to the Bank
Subsidiary Merger), and no shares of Acquiror Common Stock
will be issued pursuant to the Bank Subsidiary Merger.
(g) To the best knowledge of the management of the Company, there
is no plan or intention by any of the holders of the Company
Common Stock who own five percent (5%) or more of the
aggregate value of all the outstanding Company Common Stock
immediately prior to the Merger and, there is no plan or
intention on the part of any remaining holders of Company
Common Stock to sell, exchange, transfer by gift or otherwise
dispose of any shares of the Acquiror Common Stock received by
them in connection with the Merger, which taken together
would be equal in value to at least 50% of the Company as of
the Effective Date of the Merger.
(h) The assumption by the Acquiring Subsidiary of the liabilities
of the Company, and the acquisition by the Acquiring
Subsidiary of the assets of the Company which are subject to
liabilities, pursuant to the Merger, are for a bona fide
business purpose, and the principal purpose of the Acquiring
Subsidiary for such assumption of liabilities and acquisition
of assets subject to liabilities is not the avoidance of
federal income tax on the transfer of such assets. Each of
the Company liabilities to be assumed by the Acquiring
Subsidiary or to which the transferred assets of the Company
are subject has been incurred in the ordinary course of the
Company's business.
(i) No assets of the Company have been sold, transferred or
otherwise disposed of which would prevent the Acquiring
Subsidiary from continuing the historic business of the
Company or from using a significant portion of the Company's
historic business assets in a business following the Merger.
Neither the Acquiror nor the Acquiring Subsidiary has any plan
or intention to sell, exchange, distribute, transfer or
otherwise dispose of any of the Company's assets to be
acquired by the Acquiring Subsidiary in the Merger, except in
the ordinary course of business and except for transfers
permitted by section 368(a)(2)(C) of the Internal Revenue Code
of 1986, as amended (the "Code"). It is the intention of the
6
<PAGE> 7
management of the Acquiring Subsidiary to continue the historic
business of the Company and to use a significant portion of the
Company's historic business assets in a business following the
Merger.
(j) The Company, the Acquiror, and the Acquiring Subsidiary, and
the shareholders of the Company will each pay their own
expenses incurred in connection with the Merger and related
transactions except for liabilities of the Company which are
assumed by the Acquiring Subsidiary pursuant to the Merger and
which will be paid solely out of the assets of the Company as
constituted immediately prior to the Merger.
(k) Neither the Company nor the Acquiror nor the Acquiring
Subsidiary has paid or will pay (or has reimbursed or will
reimburse), directly or indirectly, any expenses incurred by
any holder of Company Common Stock in connection with the
Merger or any related transactions. Neither the Company nor
the Acquiror has agreed to assume nor will directly or
indirectly assume, any expense or other liability, whether
fixed or contingent, of any holder of Company Common Stock.
(l) Neither the Company nor the Company Bank is an "investment
company" within the meaning of section 368(a)(2)(F) of the
Code or a real estate investment trust within the meaning of
section 856 of the Code.
(m) Neither the Company nor the Company Bank is under the
jurisdiction of a bankruptcy court in a Title 11 or similar
case within the meaning of section 368(a)(3)(A) of the Code.
(n) The payment in the Merger of cash in lieu of fractional shares
of Acquiror Common Stock is solely for the purpose of avoiding
the expense and inconvenience to the Acquiror of issuing
fractional shares of Acquiror Common Stock and does not
represent separately bargained for consideration. The total
cash consideration that will be paid in the transaction to the
Company shareholders instead of issuing fractional shares of
Acquiror Common Stock will not exceed one percent of the total
consideration that will be issued in the transaction to the
Company shareholders in exchange for their shares of Company
stock. The fractional share interests of each Company
shareholder will be aggregated, and no Company shareholder
will receive cash in an amount equal to or greater than the
value of one full share of Acquiror Common Stock.
(o) Both the total adjusted basis and the total fair market value
of the
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<PAGE> 8
Company assets to be acquired by the Acquiring Subsidiary in
the Merger exceed the total liabilities of the Company
including the amount of liabilities, if any, to which the
transferred assets are subject.
(p) No compensation received by any shareholder of the Company is
or will be in consideration for, or allocable to, any of their
shares of the Company Common Stock. Any compensation paid or
to be paid to any shareholder of the Company who will be an
employee of or perform advisory services for the Acquiring
Subsidiary or any affiliate thereof after the Merger will be
in consideration for services rendered or to be rendered, and
such consideration will be commensurate with amounts paid to
third parties bargaining at arm's length for similar services
and has been bargained for independently of negotiations
regarding consideration paid for the Company Common Stock.
None of the shares of Acquiror Common Stock received by any
shareholder of the Company is or will be separate
consideration for, or allocable to, any employment, consulting
or other arrangement which may be entered into between the
Acquiring Subsidiary or any affiliate thereof and such
shareholder for services rendered or to be rendered by any
shareholder.
(q) There exists no intercorporate indebtedness between the
Company or the Company Bank on the one hand and the Acquiror
or the Acquiring Subsidiary on the other, that was issued,
acquired, or will be settled at a discount.
(r) The Company has not redeemed any of the Company Common Stock,
made any distribution with respect to the Company Common Stock
or disposed of any of its assets in anticipation of or as part
of the Merger.
(s) Except for the possible issuance of Company Common Stock
pursuant to the Company Option Plans described in the Company
Disclosure Schedule, the Company did not and will not issue
any additional shares of stock between the date the Merger
Agreement was executed and the Effective Date of the Merger.
(t) There exist no options, warrants, convertible securities or
other rights to acquire capital stock of the Company except as
described in the Form S-4 Registration Statement.
(u) No shares of the Company Common Stock are held by any
affiliate of the Company except as disclosed in the Company's
Form S-4 Registration Statement.
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<PAGE> 9
(v) During the five-year period ending at the Effective Date of
the Merger, neither the Acquiror, the Acquiring Subsidiary nor
any affiliate of the Acquiror has owned or owns, beneficially
or of record, any stock or securities of the Company or the
Company Bank or any predecessor thereof or any instruments
giving the holder the right to acquire any such stock or
securities except as disclosed in the Form S-4 Registration
Statement.
(w) Neither the Acquiror, the Acquiring Subsidiary nor any
affiliate of the Acquiror intends to acquire or redeem by
purchase or otherwise reacquire any of the shares of the
Acquiror Common Stock to be issued pursuant to the Merger, or
to make any distributions with respect to such stock, except
for regular, periodic dividends.
(x) The Acquiror has no plan or intention to liquidate, sell or
dispose of the stock of the Acquiring Subsidiary into another
corporation (except for the possible merger of Company Bank
with and into the Acquiring Bank).
(y) The Company Bank is a domestic building and loan association
as defined under section 7701(a)(19) of the Code that is
entitled to take deductions for its reserve for bad debts
under section 593 of the Code.
(z) The shareholders of Company (immediately before the proposed
transaction) receiving shares of Acquiror Common Stock will
not own (immediately after the proposed transaction) more than
fifty percent of the fair market value of Acquiror.
LIMITATIONS ON OPINION
Our opinions expressed herein are based solely upon current provisions
of the Code, including applicable regulations thereunder and current judicial
and administrative authority. Any future amendments to the Code or applicable
regulations, or new judicial decisions or administrative interpretations, any
of which could be retroactive in effect, could cause us to modify our opinion.
No opinion is expressed herein with regard to the federal or state tax
consequences of the Merger under any section of the Code (or under state or
local tax law) except if and to the extent specifically addressed.
OPINION
Based solely upon the foregoing representations and information and
9
<PAGE> 10
assuming the transaction occurs in accordance with the Plan of Reorganization
(and taking into consideration the limitations at the end of the opinion), it
is our opinion that under current federal income tax law:
(1) Provided that the Merger of AmeriFed with and into NBD
Illinois qualifies as a Merger under applicable state or
federal law, the proposed Merger of AmeriFed will be a
reorganization within the meaning of section 368(a)(1)(A) of
the Code. AmeriFed, NBD Illinois and NBD will each be a
"party to a reorganization" within the meaning of section
368(b) of the Code.
(2) The basis of the assets of AmeriFed to be received by NBD
Illinois will be the same as the basis of those assets in the
hands of AmeriFed immediately prior to the Merger.
(3) The holding period of the assets of AmeriFed to be received by
NBD Illinois will include the holding period of those assets
in the hands of AmeriFed immediately prior to the Merger.
(4) No gain or loss will be recognized by NBD Illinois and NBD
upon receipt of the assets of AmeriFed by NBD Illinois in
exchange for the consideration provided for in the Merger
Agreement and the assumption by NBD Illinois of the
liabilities of AmeriFed.
(5) NBD Illinois will succeed to and take into account the items
of AmeriFed described in Section 381(c) of the Code and NBD
Illinois will be the "acquiring corporation" within the
meaning of Section 1.381(a)-1(b)(2) of the Treasury
Regulations. These items will be taken into account by NBD
Illinois subject to the conditions and limitations specified
in Sections 381, 382 and 383 of the Code and the Treasury
Regulations thereunder.
(6) No gain or loss will be recognized by AmeriFed upon the
transfer of its assets to NBD Illinois in exchange for the
consideration provided for in the Merger Agreement and the
assumption by NBD Illinois of the liabilities of AmeriFed.
(7) No gain or loss will be recognized by the shareholders of
AmeriFed who receive shares of NBD Common Stock in exchange
for all of their shares of AmeriFed Common Stock, except to
the extent of any cash received in lieu of a fractional share
of NBD Common Stock. Gain, if any, will be recognized by
holders of the shares of AmeriFed Common Stock who receive
both NBD Common Stock (including a fractional share interest)
and cash in exchange for their AmeriFed Common Stock, but not
in excess of the amount of cash received. If the exchange has
the effect of the
10
<PAGE> 11
distribution of a dividend (determined with the application of
section 318(a) of the Code), then the amount of the gain
recognized that is not in excess of a shareholder's ratable
share of undistributed earnings and profits will be treated as
a dividend. The determination of whether the exchange has the
effect of a dividend will be made in accordance with the
principles set forth in Commissioner v. Clark, 489 U.S. 726
(1989). No loss will be recognized on the exchange of
AmeriFed Common Stock for NBD Common Stock (including a
fractional share interest, if any), and cash, as described
above (section 354(a)(1) of the Code).
(8) The basis of NBD Common Stock to be received by shareholders
of AmeriFed will, in each instance, be the same as the basis
of the shares of AmeriFed Common Stock surrendered in exchange
therefor.
(9) The holding period of the NBD Common Stock received by
shareholders of AmeriFed will, in each instance, include the
holding period of the shares of AmeriFed Common Stock
surrendered in exchange therefor, provided that AmeriFed
Common Stock was, in each instance, held as a capital asset in
the hands of the shareholder of AmeriFed on the Effective Date
of Merger.
(10) The payments of cash in lieu of fractional share interests of
NBD Common Stock will be treated as having been received as
distributions in full payment in exchange for the stock
redeemed as provided in Section 302(a) of the Code.
* * *
This opinion is based on the assumption that the transaction will be
consummated in accordance with the Plan of Reorganization as well as all the
information and representations referred to herein. Any change in the
transaction could cause us to modify our opinion.
Sincerely,
MULDOON, MURPHY & FAUCETTE
/s/ Muldoon, Murphy & Faucette
11
<PAGE> 1
EXHIBIT (21)
EXHIBIT 21
NBD BANCORP, INC. SUBSIDIARIES
(Direct and Indirect)
Bank Holding Company Subsidiaries Jurisdiction of Organization
- --------------------------------- ----------------------------
NBD Illinois, Inc. Delaware
NBD Indiana, Inc. Delaware
Bank Subsidiaries Jurisdiction of Organization
- ----------------- ----------------------------
NBD Bank, N.A. (Detroit, MI) U.S.A.
NBD Bank, N.A. (Indianapolis, IN) U.S.A.
NBD Bank (Columbus, OH) Ohio
NBD Bank (Elkhart, IN) Indiana
NBD Bank (Wheaton, IL) Illinois
NBD Bank, FSB (Venice, FL) U.S.A.
NBD Bank, Canada Canada
NBD Skokie Bank, N.A. U.S.A.
National Bank of Detroit-Dearborn U.S.A.
Bank-Related Subsidiaries Jurisdiction of Organization
- ------------------------- ----------------------------
Charter Agency, Inc. Illinois
Charter Oak Insurance Agency of Michigan, Inc.* Michigan
Consumer Marketing Services, Inc. Indiana
Corporate Funding, Inc. Michigan
FNW Capital, Inc. Illinois
INB Network Corporation Indiana
International Bank of Detroit U.S.A.
Midwest Commerce Investments Corp. Indiana
NBD Brokerage Services, Inc. Indiana
NBD Community Development Corporation Michigan
NBD Equipment Finance, Inc. Delaware
NBD Equity Corp. Michigan
NBD Financial Services of Michigan, Inc. Michigan
NBD Indiana Properties, Inc. Indiana
NBD Insurance Agency, Inc. Michigan
NBD Insurance Company Arizona
NBD Leasing, Inc. Indiana
NBD Mortgage Company Delaware
NBD Neighborhood Revitalization Corporation Indiana
NBD Real Estate Services, Inc. Indiana
NBD Securities, Inc. Michigan
NBD Service Corp. Delaware
NBD Transportation Company Michigan
NBD Trust Company of Florida, N.A. U.S.A.
*All subsidiaries are wholly-owned, except for Charter Oak which is 80% owned.
<PAGE> 1
EXHIBIT 23(A)
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of NBD Bancorp, Inc. on Form S-4 of the report of Deloitte & Touche
dated January 18, 1994, appearing in and incorporated by reference in the
Annual Report on Form 10-K of NBD Bancorp, Inc. for the year ended
December 31, 1993 and to the reference to Deloitte & Touche LLP under the
heading "EXPERTS" in the Proxy Statement-Prospectus, which is part of this
Registration Statement.
DELOITTE & TOUCHE LLP
Detroit, Michigan
September 26, 1994
<PAGE> 1
EXHIBIT 23(B)
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of NBD Bancorp, Inc. on Form S-4 of the report of Deloitte & Touche
dated October 27, 1993, appearing in and incorporated by reference in the
Annual Report on Form 10-K of AmeriFed Financial Corp. for the year ended
September 30, 1993 and to the reference to Deloitte & Touche LLP under the
heading "EXPERTS" in the Proxy Statement-Prospectus, which is part of this
Registration Statement.
DELOITTE & TOUCHE LLP
Chicago, Illinois
September 26, 1994
<PAGE> 1
EXHIBIT 23(C)
[KPMG Peat Marwick LLP letterhead]
Independent Auditors' Consent
The Summcorp Board of Directors and Shareholders:
We consent to the incorporation by reference in this Registration Statement of
NBD Bancorp, Inc. on Form S-4 of our report dated January 20, 1992, appearing
in the Annual Report to Form 10-K of NBD Bancorp, Inc. for the year ended
December 31, 1993. We also consent to the reference to us under the heading
"Experts" in the Proxy Statement-Prospectus, which is part of this Registration
Statement.
KPMG Peat Marwick LLP
Indianapolis, Indiana
September 26, 1994
<PAGE> 1
EXHIBIT 23(D)
[Ernst & Young LLP letterhead]
CONSENT OF ERNST & YOUNG LLP INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" and to
incorporation by reference in the Registration Statement (Form S-4) and related
Prospectus of NBD Bancorp, Inc. in connection with the purchase of AmeriFed
Financial Corp., of our report dated January 14, 1992, with respect to the
consolidated financial statements of INB Financial Corporation included in its
Annual Report to Shareholders for the year ended December 31, 1991,
incorporated by reference in the NBD Bancorp, Inc. Annual report (Form 10-K)
for the year ended December 31, 1993 filed with the Securities and Exchange
Commission.
Ernst & Young LLP
Indianapolis, Indiana
September 26, 1994
<PAGE> 1
EXHIBIT (23)(F)
CONSENT OF COUNSEL
We hereby consent to the use in the Proxy Statement-Prospecuts which
forms a part of the Registration Statement on Form S-4 relating to the proposed
merger of AmeriFed Financial Corp. with and into a subsidiary of NBD Bancorp,
Inc., and the statements with respect to us, as appearing under the heading
"Legal Matters" in the Proxy Statement-Prospectus. In giving such consent, we
do not admit and we hereby disclaim 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 of the Securities and Exchange Commission
thereunder, nor do we thereby 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.
Date: September 29, 1994
MULDOON, MURPHY & FAUCETTE
<PAGE> 1
EXHIBIT 23(G)
[The Chicago Corporation letterhead]
CONSENT OF THE CHICAGO CORPORATION
We hereby consent to the summarization of our fairness opinion letter and
references to our firm under the captions "SUMMARY -- Opinion of Financial
Advisor" and "THE MERGER" and to the inclusion of such letter as an Appendix to
the Proxy Statement - Prospectus which is part of this Registration Statement
on Form S-4 of NBD Bancorp, Inc. By giving such consent, we do not thereby
admit that we are experts with respect to any part of such Registration
Statement within the meaning of the term "expert" as used in the Securities Act
of 1933, as amended, or the rules and regulations of the Securities and
Exchange Commission promulgated thereunder.
THE CHICAGO CORPORATION
Chicago, Illinois
August 26, 1994
<PAGE> 1
EXHIBIT 99(A)
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT, dated as of March 23, 1994, by and between
AmeriFed Financial Corp., a Delaware corporation (the "Company"), and NBD
Bancorp, Inc., a Delaware corporation ("Bancorp").
WITNESSETH:
WHEREAS, the Company and Bancorp have entered into an Agreement and
Plan of Reorganization and Agreement and Plan of Merger (collectively the
"Agreements") of even date herewith providing for the merger of the Company
with and into a subsidiary of Bancorp; and
WHEREAS, Bancorp has paid the Company $1,000 as consideration for the
grant of the Option (as hereinafter defined), which has further been made to
induce Bancorp to enter into the Agreements;
NOW, THEREFORE, in consideration of such cash payment and the mutual
covenants and agreements set forth herein and in the Agreements, the parties
hereto agree as follows:
1. Grant of Option. The Company hereby irrevocably grants to Bancorp
an option (the "Option") to purchase up to 610,578 shares (the "Option Shares")
of common stock of the Company (the "Company Common Stock") at a price per
Option Share equal to $32.75 (the "Option Price").
2. Exercise of Option. The Option may be exercised by Bancorp, in
whole or in part, at any time or from time to time, on or before March 31,
1995; provided, however, the Option may not be exercised at any time that
Bancorp is in material breach of the Agreements. In the event Bancorp wishes
to exercise the Option, Bancorp shall send a written notice to the Company
specifying the total number of Option Shares it will purchase and a place and
date not later than 60 business days from the date such notice is mailed for
the closing of such purchase (the "Closing"), provided that if the approval of
any governmental authority requisite to such purchase shall not have been
obtained prior to such Closing the date therefor shall be postponed to a date
10 business days following receipt of all such required approvals and provided
further that Bancorp, at any time prior to such Closing, may rescind any notice
delivered by it pursuant to this Section 2. The option fee of $1,000 shall be
applied against the aggregate Option Price.
3. Pre-Conditions to Exercise of Option. Bancorp may exercise the
Option only if any of the following events has occurred:
(a) The making, other than by Bancorp (or any of its
<PAGE> 2
subsidiaries), of a tender or exchange offer for 10% or more of the
shares of the Company Common Stock and the person making such tender
or exchange offer has filed documents with the Securities and Exchange
Commission (SEC) in connection therewith and has received all
requisite regulatory approvals to own or control 10% or more of the
Company Common Stock;
(b) The acquisition hereafter, by any person or group of
persons (other than Bancorp or any of its subsidiaries or a person or
group which would be eligible to file an SEC Schedule 13G) of
beneficial ownership of 10% or more of the outstanding shares of the
Company Common Stock (the terms "group" and "beneficial ownership"
having the meanings assigned thereto in Section 13(d) of the Securities
Exchange Act of 1934, as amended, and the regulations promulgated
thereunder);
(c) The acceptance by the Company of any firm proposal,
however conditional or future, by any person other than Bancorp (or any
of its subsidiaries), to: (i) acquire the Company (or any of its
banking subsidiaries) by merger, consolidation, purchase of all or
substantially all of the Company's or such subsidiary's assets or other
similar transaction, or (ii) make a tender or exchange offer described
in (a) above.
4. Payment and Delivery of Certificate(s). Subject to any necessary
regulatory approval, at any Closing hereunder: (a) Bancorp will make payment to
the Company of the aggregate price for the Option Shares so purchased by
delivery of immediately available funds, and (b) the Company will deliver to
Bancorp a certificate or certificates representing the Option Shares so
purchased.
5. Representations and Warranties of the Company. The Company hereby
represents and warrants to Bancorp as follows:
(a) Due Authorization. This Stock Option Agreement has been
duly authorized by all necessary corporate action on the part of the
Company and has been duly executed by a duly authorized officer of the
Company and constitutes a valid and binding obligation of the Company.
(b) Option Shares. Except for any filings required to be
made with any governmental authorities, which filings shall be made as
promptly as possible after the date hereof, the Company has taken all
necessary corporate and other action to authorize and reserve and to
permit it to issue, and at all times from the date hereof to such time
as the obligation to deliver shares of the Company Common Stock
hereunder terminates will have reserved for issuance upon exercise of
the Option, 610,578 shares of the Company Common Stock, all of which,
upon issuance pursuant hereto, shall be duly and validly issued, fully
paid and nonassessable, shall be free and clear of all claims, liens,
encumbrances, and security interests and will
<PAGE> 3
not have been issued in violation of any preemptive right of any of the
shareholders of the Company.
(c) Conflicting Instruments. Neither the execution and
delivery of this Stock Option Agreement nor the consummation of the
transactions contemplated hereby will violate or result in any
violation of or be in conflict with or constitute a default under any
term of the certificate of incorporation or by-laws of the Company or
of any agreement, instrument, judgment, decree, order, statute, rule,
or governmental regulation applicable to the Company.
6. Representations and Warranties of Bancorp. Bancorp hereby
represents and warrants to the Company as follows:
(a) Due Authorization. This Stock Option Agreement has been
duly authorized by all necessary corporate action on the part of
Bancorp and has been duly executed by a duly authorized officer of
Bancorp and constitutes a valid and binding obligation of Bancorp.
(b) Purchase for Own Account. Bancorp hereby represents and
warrants to the Company that the Option is, and any shares of the
Company Common Stock issued upon its exercise will be, purchased by
Bancorp for its own account and not with a view to the public
distribution thereof and will not be transferred except in a
transaction registered or exempt from registration under the Securities
Act of 1933, as amended (the "1933 Act"), and a legend to such effect
shall be noted on such shares of Common Stock.
7. Adjustment Upon Changes in Capitalization. In the event of any
change in the Company Common Stock by reason of stock dividends, split-ups,
mergers, recapitalizations, combinations, exchanges of shares or the like, the
number and kind of shares subject to the Option and the purchase price per
share of the Company Common Stock shall be appropriately adjusted.
8. Right of Repurchase. In the event that (a) Option Shares
have been purchased by Bancorp pursuant to the terms of this Stock Option
Agreement and (b) the Agreements are terminated by reason of: (i) mutual
agreement of the parties, or (ii) material breach thereof by Bancorp or any of
its subsidiaries, the Company shall have the right to purchase for cash all but
not less than all of the Option Shares theretofore purchased by Bancorp. This
right of purchase shall be exercised by the Company by giving notice to
Bancorp, within seven (7) business days after any such termination, of the
Company's intention to purchase all of the Option Shares theretofore purchased
by Bancorp. Further, if the Option Shares have been purchased by Bancorp after
an event set forth in Paragraph 3(a) or (c) has occurred, and subsequently the
tender or exchange offer or proposal contemplated thereby is terminated, then
the Company shall have the right at the
<PAGE> 4
end of six (6) months after such termination and within seven (7) business days
thereafter to repurchase all of the Option Shares from Bancorp by giving
written notice of its intention to repurchase within such seven (7) business
day period. Further, if the Option Shares have been purchased by Bancorp after
an event set forth in Paragraph 3(b) has occurred, and subsequently a tender
or exchange offer or other proposal to acquire the Company is not consummated
by the acquiring persons within six (6) months after such purchase, then the
Company shall have the right at the end of six (6) months thereafter and within
seven (7) business days thereof to repurchase all of the Option Shares from
Bancorp by giving written notice of its intention to repurchase within such
seven (7) business day period. The purchase price per share of the Company
Common Stock shall be equal to that paid by Bancorp in its purchase of such
Option Shares plus interest payable at a rate equal to the rate publicly
announced by NBD Bank, N.A. (Michigan) from time to time as its Prime Rate from
the date of the purchase referred to in Paragraph 4 hereof to the date of
repurchase. The closing of any such repurchase by the Company shall take place
on such date as shall be agreed upon by the parties as soon as practicable but
in no event later than ten (10) business days after receipt of any necessary
regulatory clearance and the Company shall promptly file any notice or
application for such clearance.
9. Cash Put. At any time the Option is exercisable in accordance with
Section 3, at the request of Bancorp, the Company shall repurchase the Option
from Bancorp at a price (the "Option Repurchase Price") equal to (x) the amount
by which (A) the market/offer price (as defined below) exceeds (B) the Option
Price, multiplied by the number of shares for which the Option may be exercised
plus (y) Bancorp's out-of-pocket expenses (as defined below), to the extent not
previously reimbursed. The term "market/offer price" shall mean the highest of
(i) the price per share of Company Common Stock at which a tender offer or
exchange offer has been made, (ii) the price per share of Company Common Stock
to be paid by any third party pursuant to an agreement with the Company, (iii)
the highest closing price for a share of Company Common Stock within the
six-month period immediately preceding the date Bancorp gives the notice of the
required repurchase pursuant to this section and (iv) in the event of an
agreement by the Company to sell all or substantially all of its assets, the
sum of the price to be paid in such sale for such assets and the current market
value of the remaining assets of the Company as determined by a nationally
recognized independent investment banking firm selected by Bancorp, as the case
may be, divided by the number of shares of Company Common Stock outstanding at
the time of such sale. In determining the "market/offer price," the value of
consideration other than cash shall be determined by such an investment banking
firm. "Out-of-pocket expenses" shall mean Bancorp's reasonable out-of-pocket
expenses incurred in connection with the transactions contemplated by the
Agreements and this Agreement, including without limitation legal, accounting
and investment banking fees.
10. Miscellaneous.
<PAGE> 5
(a) Assignment. This Stock Option Agreement shall not be
sold, transferred, assigned, pledged or hypothecated by Bancorp, except
to a wholly-owned subsidiary of Bancorp, without the prior written
consent of the Company.
(b) Amendments. This Stock Option Agreement may not be
modified, amended, altered or supplemented, except upon the execution
and delivery of a written agreement executed by the parties hereto.
(c) Notices. All notices, requests, claims, demands and
other communications hereunder shall be in writing and shall be given
(and shall be deemed to have been duly received if so given) by
delivery, by cable, telegram or telex, or by mail (registered or
certified mail, postage prepaid, return receipt requested) to the
respective parties as follows:
If to Bancorp:
Louis Betanzos, Executive Vice President
NBD Bancorp, Inc.
611 Woodward Avenue
Detroit, Michigan 48226
with a copy to:
Daniel T. Lis, Senior Vice President
NBD Bancorp, Inc.
611 Woodward Avenue
Detroit, Michigan 48226
If to the Company:
Robert B. Breidert, President
and Chief Executive Officer
AmeriFed Financial Corp.
4 Scott Street
Joliet, Illinois 60431
with a copy to:
John Bruno, Esquire
Muldoon, Murphy & Faucette
5101 Wisconsin Avenue N.W.
Washington, D.C. 20016
or to such other address as either party may have furnished to the
other in
<PAGE> 6
writing in accordance herewith, except that notices of change of
address shall only be effective upon receipt.
(d) Governing Law. This Stock Option Agreement shall be
governed by and construed in accordance with the substantive law of the
State of Delaware without giving effect to the principles of conflicts
of laws thereof.
(e) Counterparts. This Stock Option Agreement may be
executed in several counterparts, each of which shall be an original,
but all of which together shall constitute one and the same agreement.
(f) Effect of Headings. The section headings herein are for
convenience only and shall not affect the construction hereof.
<PAGE> 7
IN WITNESS WHEREOF, the undersigned parties have caused this Stock
Option Agreement to be duly executed as of the day and year first above
written.
ATTEST: NBD BANCORP, INC.
By: /s/ Richard J. McCullen By: /s/ James R. Lancaster
---------------------------- ------------------------
James R. Lancaster
Executive Vice President
ATTEST: AMERIFED FINANCIAL CORP.
By: /s/ Steven J. Morrissette By: /s/ Robert B. Breidert
---------------------------- ------------------------
Robert B. Breidert
President & Chief Executive Officer
<PAGE> 1
EXHIBIT (99)(B)
REVOCABLE PROXY
AMERIFED FINANCIAL CORP.
SPECIAL MEETING OF STOCKHOLDERS
December 9, 1994
3:00 p.m.
The undersigned hereby appoints the official proxy committee,
consisting of Messrs. __________, __________ and __________, of the Board of
Directors of AmeriFed Financial Corp. ("AmeriFed"), each with full power of
substitution, to act as attorneys and proxies for the undersigned, and to vote
all shares of common stock of AmeriFed which the undersigned is entitled to
vote only at the Special Meeting of Stockholders, to be held at 150 West
Banquet Facilities, 1050 East I-55 Frontage Road North, Joliet, Illinois 60435,
on December 9th, 1994, at 3:00 p.m., and at any and all adjournments thereof,
as follows:
To consider and vote upon a proposal to approve and adopt the Agreement
and Plan of Merger, dated March 23, 1994 (the "Merger Agreement"), by and
between NBD Bancorp, Inc. ("NBD"), NBD Illinois, Inc. ("NBD Illinois"), and
AmeriFed and the transactions contemplated thereby, including the merger of
AmeriFed with and into NBD Illinois, a wholly-owned subsidiary of NBD.
[ ] FOR [ ] AGAINST [ ] ABSTAIN
THE BOARD OF DIRECTORS RECOMMENDS A VOTE "FOR" THE PROPOSAL.
To transact such other business as may properly come before the Special
Meeting or any adjournments or postponements thereof including, without
limitation, a motion to adjourn or postpone the Special Meeting to another time
and/or place for the purpose of soliciting additional proxies in order to
approve the Merger Agreement or otherwise.
[ ] FOR [ ] AGAINST [ ] ABSTAIN
THE BOARD OF DIRECTORS RECOMMENDS A VOTE "FOR" THE PROPOSAL.
<PAGE> 2
[BACK]
THIS PROXY IS REVOCABLE AND WILL BE VOTED AS DIRECTED, BUT IF NO
INSTRUCTIONS ARE SPECIFIED, THIS SIGNED PROXY WILL BE VOTED FOR THE PROPOSALS.
If any other business is presented at the Special Meeting, this proxy will be
voted by those named in this proxy in their best judgment. At the present
time, the Board of Directors knows of no other business to be presented at the
Special Meeting.
THIS PROXY IS SOLICITED BY THE BOARD OF DIRECTORS
The undersigned acknowledges receipt from AmeriFed prior to the
execution of this proxy of a Notice of Special Meeting and of a Proxy
Statement-Prospectus dated _______________, 1994.
Dated: _____________________________ ____________________________________
SIGNATURE OF STOCKHOLDER
____________________________________
SIGNATURE OF STOCKHOLDER
Please sign exactly as your name appears on this
card. When signing as attorney, executor,
administrator, trustee or guardian, please give
your full title. If shares are held jointly, each
holder may sign but only one signature is required.
PLEASE COMPLETE, DATE, SIGN AND MAIL THIS PROXY PROMPTLY IN THE ENCLOSED
POSTAGE-PAID ENVELOPE.
