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EXHIBIT 5
OPINION OF DAVIS & KUELTHAU, S.C. REGARDING
LEGALITY OF ISSUANCE OF REGISTRANT'S SECURITIES
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EXHIBIT 5
, 2000
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Board of Directors
CBOC, Inc.
500 Cherry Avenue
Oconto Falls, WI 54154
Gentlemen:
We have acted as counsel to Merchants and Manufacturers Bancorporation,
Inc., a Wisconsin corporation ("Merchants") in connection with the acquisition
of CBOC, Inc., a Wisconsin corporation ("the Company"), by Merchants through the
merger of the Company with and into Merchants Merger Corp. ("Merger Corp."), a
wholly-owned subsidiary of Merchants, pursuant to the terms and conditions of
the Agreement and Plan of Merger dated as of August 1, 2000, by and between
Merchants, Merger Corp. and the Company, (the "Agreement"). This opinion is
being delivered to you pursuant to Section 7.03(d) of the Agreement. All
capitalized terms which are defined in the Agreement shall have the same
meanings when used herein, unless otherwise specified.
We have examined originals or copies, certified or otherwise identified
to our satisfaction, of all such records of Merchants, agreements and other
instruments, certificates of officers and representatives of Merchants,
certificates of public officials and other documents which we have deemed
necessary as a basis for the opinions hereinafter expressed. As to various
questions of fact material to our opinion, we have relied upon certificates of
officers of Merchants. In rendering this opinion, we have assumed the
genuineness of all signatures, the authenticity of all documents submitted to us
as originals and the conformity to original documents of all documents submitted
to us as copies or drafts of documents to be executed, the due execution of the
Agreement by and the enforceability of the Agreement against the Company.
Whenever this opinion refers to matters within our "knowledge," "known to us" or
of which we "know," such reference is limited to (1) the facts within our actual
knowledge after an inquiry of the attorneys and legal assistants of this firm
who have provided legal services to Merchants within the past 12 months and (2)
facts represented
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Board of Directors
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to us in certificates of officers of Merchants. We have made no other inquiry or
investigation as to factual matters.
Based on the foregoing and upon such additional investigation of law as
we have deemed necessary, it is our opinion that:
1. Merchants is a corporation existing under the laws of the State of
Wisconsin and, based solely on a certificate of the Department of Financial
Institutions of Wisconsin, (a) has filed with the Department of Financial
Institutions during its most recently completed report year, the Board of
Directors required annual report; (b) is not the subject of a proceeding under
Wisconsin Statutes ss. 180.1421 to cause its administrative dissolution; (c) no
determination has been made by the Department of Financial Institutions that
grounds exist for such action; (d) no filing has been made with the Department
of Financial Institutions of a decree of dissolution with respect to Merchants;
and (e) Articles of Dissolution of Merchants have not been filed with the
Department of Financial Institutions.
2. Merchants has the corporate power and corporate authority (and has
received appropriate authorizations from applicable regulatory agencies) to own
its properties and assets and to carry on its business as now being conducted.
3. The execution, delivery and performance of the Agreement by
Merchants has been duly authorized and approved by all requisite corporate
action on the part of Merchants. The Agreement has been duly executed and
delivered by Merchants and constitutes a valid and binding obligation of
Merchants, enforceable against Merchants in accordance with its terms (a) except
as such enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditor's rights generally and (b) subject to general principles of equity,
regardless of whether such enforceability is considered in a proceeding in
equity or at law.
4. The execution and delivery of the Agreement and the consummation by
Merchants of the transactions contemplated by the Agreement will not conflict
with or result in a breach of or violation of, or default under (a) the Articles
of Incorporation or By-Laws of Merchants, (b) any order, writ, judgment or
decree known to us to which Merchants is subject, or (c) any agreement known to
us to which Merchants is a party.
5. To our knowledge, all approvals, consents, authorizations or
modification which are required on the part of Merchants to permit the execution
and performance of Merchants' obligations under the Agreement and the
transaction contemplated therein have been obtained and are in full force and
effect.
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Board of Directors
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6. To our knowledge, except as disclosed in Section 3.09 of the
Merchants' Disclosure Schedule and in the Merchants' SEC Reports filed prior to
the date of the Agreement, there is no (a) litigation, proceeding or
governmental investigation pending or threatened against Merchants or any of its
properties, assets or business or the transaction contemplated by the Agreement
which, if adversely determined, in our judgment, could reasonably be anticipated
to result in any material adverse effect on Merchants or (b) decree (other than
decrees of general applicability to banks generally) or judgment of any court or
government agency to which Merchants is subject and, which, in our judgment,
could reasonably be anticipated to have a material adverse effect on the
financial condition, results of operations, assets, business or prospects of
Merchants.
7. The shares of Merchants Common Stock to be delivered to holders of
the Company Common Stock pursuant to the Agreement have been duly authorized and
such shares of Merchants Common Stock, at the Effective Time, will be validly
issued, fully paid and non-assessable (except as set forth in Wisconsin Statutes
ss. 180.0622, as interpreted).
We have not independently determined the accuracy and completeness of
or otherwise verified, and we are not passing upon and assume no responsibility
for the accuracy or completeness of, the statements contained in the Proxy
Statement/Prospectus or the Registration Statement. We have, however, generally
reviewed and discussed the contents of the Proxy Statement/Prospectus and the
Registration Statement with certain officers and employees of Merchants. In the
course of such review and discussions, nothing has come to our attention which
causes us to believe that the Proxy Statement/Prospectus at the time it was
first mailed to holders of the Company Common Stock or at the time of the
Company's shareholder meeting or at the time the Registration Statement became
effective and at the Effective Time, contained any untrue statement of material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading (except that the
foregoing statement does not apply to the financial statements and other
statistical or financial data or information included therein or any information
about or supplied by the Company for use in the Proxy Statement/Prospectus or
the Registration Statement as to which we express no belief).
This Opinion Letter is governed by, and shall be interpreted in
accordance with the Legal Opinion Accord (the "Accord") of the ABA Section of
Business Law (1991). As a consequence, it is subject to a number of
qualifications, exceptions, definitions, limitations on coverage and other
limitations, all as more particularly described in the Accord, and this Opinion
Letter should be read in conjunction therewith.
The opinions herein are limited to the law of the State of Wisconsin
and the federal law of the United States. This opinion is rendered solely for
your information and assistance in connection with the transaction described
above and may not be relied upon by any other person or for any other purpose
without our prior written consent.
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Board of Directors
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We hereby consent to the use of our name beneath the caption "Legal
Matters" in the Proxy Statement/Prospectus forming part of the Registration
Statement and to the filing of a copy of this opinion as an exhibit thereto. In
giving our consent, we do not admit that we are "experts" within the meaning of
Section 11 of the Act or within the category of persons whose consent is
required by Section 7 of the Act.
Very truly yours,
DAVIS & KUELTHAU, S.C.
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