<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 3, 1996
REGISTRATION NO. 333-______
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-4
REGISTRATION STATEMENT
Under
The Securities Act of 1933
F&M BANCORPORATION, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
WISCONSIN 6022 39-1365327
(State or other jurisdiction (Primary Standard Industrial (I.R.S. Employer
of incorporation or organization) Classification Code Number) Identification Number)
</TABLE>
ONE BANK AVENUE
KAUKAUNA, WISCONSIN 54130
(414) 766-1717
(Address, including Zip Code, and telephone number,
including area code, of registrant's principal executive offices)
RANDALL A. HAAK, ESQ.
MCCARTY, CURRY, WYDEVEN, PEETERS & HAAK
120 E. 4TH STREET
KAUKAUNA, WISCONSIN 54130
(414) 766-4693
(Name, address, including Zip Code, and telephone number,
including area code, of agent for service)
COPIES TO:
KENNETH V. HALLETT, ESQ.
QUARLES & BRADY
411 EAST WISCONSIN AVENUE
(414) 277-5000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE OF THE SECURITIES TO
THE PUBLIC: From time to time after the Registration Statement becomes
effective.
If any of the securities being registered on this Form are being
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, check the following box: [ X ]
If any of the securities being registered on this Form are being
offered in connection with the formation of a holding company and there is
compliance with General Instruction G, check the following box. [ ]
__________________
<PAGE> 2
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===============================================================================================================
PROPOSED PROPOSED
AMOUNT MAXIMUM MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF TO BE OFFERING PRICE AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED(1) PER UNIT OFFERING PRICE(2) FEE
- ---------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $1.00 par value...... 1,500,000 shares $ (2) $40,821,500 $14,076.38
===============================================================================================================
</TABLE>
(1) Estimated maximum amount. The actual number of shares issued would
depend upon the exact terms of acquisition transactions.
(2) For 1,060,000 shares, estimated pursuant to Rule 457(c) under the
Securities Act of 1933 solely for the purpose of calculating the
registration fee, based on the $31.125 average of the high and
low sale prices on the NASDAQ Stock Market on September 30, 1996. For
the remaining 440,000 shares, estimated pursuant to Rule 457(f)(2)
under the Securities Act of 1933 solely for the purpose of calculating
the registration fee, based upon the $7,829,000 aggregate book value
of shares of East Troy Bancshares, Inc. as of June 30, 1996 (the
latest practical date for which such information is available).
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
F&M BANCORPORATION, INC.
CROSS REFERENCE SHEET
PURSUANT TO ITEM 501(B)
OF REGULATION S-K
<TABLE>
<CAPTION>
FORM S-4 LOCATION OR CAPTION IN
ITEM NUMBER AND CAPTION PROXY STATEMENT/PROSPECTUS
<S> <C>
A. Information about the Transaction.
1. Forepart of Registration Statement and
Outside Front Cover Page of
Prospectus . . . . . . . . . . . . . Outside Front Cover Page
2. Inside Front and Outside Back Cover
Pages of Prospectus . . . . . . . . . Available Information; Incorporation of Certain
Documents by Reference; Table of Contents
3. Risk Factors, Ratio of Earnings to
Fixed Charges and Other Information . Summary; Risk Factors
4. Terms of the Transaction . . . . . . **
5. Pro Forma Financial Information . . . **
6. Material Contacts with the Company
Being Acquired . . . . . . . . . . . **
7. Additional Information Required for
Reoffering by Persons and Parties
Deemed to be Underwriters . . . . . . *
8. Interests of Named Experts and
Counsel . . . . . . . . . . . . . . . Legal Opinions
9. Disclosure of Commission Position on
Indemnification for Securities Act
Liabilities . . . . . . . . . . . . . *
</TABLE>
<PAGE> 4
<TABLE>
<CAPTION>
Form S-4 Location or Caption in
Item Number and Caption Proxy Statement/Prospectus
----------------------- --------------------------
<S> <C>
B. INFORMATION ABOUT THE REGISTRANT.
10. Information with Respect to S-3
Registrants . . . . . . . . . . . . . . Summary; F&M Summary Financial Data; F&M
Bancorporation, Inc.; F&M Market Information and
Dividends
11. Incorporation of Certain Information by
Reference . . . . . . . . . . . . . . Incorporation of Certain Documents by Reference
12. Information with Respect to S-2 or S-3
Registrants . . . . . . . . . . . . . *
13. Incorporation of Certain Information by
Reference . . . . . . . . . . . . . . *
14. Information with Respect to Registrants
Other Than S-3 or S-2 Registrants *
C. INFORMATION ABOUT THE COMPANY BEING ACQUIRED.
15. Information with Respect to S-3
Companies . . . . . . . . . . . . . . . **
16. Information with Respect to S-2 or S-3
Companies . . . . . . . . . . . . . . **
17. Information with Respect to Companies
Other Than S-3 or S-2 Companies . . . **
D. VOTING AND MANAGEMENT INFORMATION.
18. Information if Proxies, Consents or
Authorizations are to be Solicited . . **
19. Information if Proxies, Consents or
Authorizations are not to be Solicited
or in an Exchange Offer . . . . . . . **
</TABLE>
_________________
* Not applicable.
** To be included in relevant supplements, if applicable.
<PAGE> 5
PROSPECTUS
1,500,000 SHARES
F&M BANCORPORATION, INC.
COMMON STOCK
This Prospectus (the "Prospectus") covers the offer and sale of up to
1,500,000 shares of Common Stock, par value $1.00 per share (the "F&M Common")
of F&M Bancorporation, Inc. ("F&M" or the "Company"), which F&M may issue from
time to time in connection with future acquisitions of other businesses, or
securities of other businesses, in business combination transactions in
accordance with Rule 415(a)(1)(viii) of Regulation C under the Securities Act
of 1933, as amended (the "Securities Act") or as otherwise permitted under the
Securities Act.
The Company expects that the terms upon which it may issue the shares
in business combination transactions will be determined through negotiations
with the boards of directors, principal owners and/or other representatives of
the businesses to be acquired. It is expected that the shares of F&M Common
that are issuable will be valued at prices reasonably related to the market
prices for F&M Common prevailing at either the time an acquisition agreement is
executed or at the time an acquisition is consummated. On October __, 1996,
the last report of sales price of F&M Common on The NASDAQ Stock Market
("NASDAQ") was $_____ per share.
This Prospectus will be used only in connection with business
acquisitions. The Prospectus may be used in connection with business
combination transactions which would be exempt from registration but for the
issuance of F&M Common and the possibility of integration with other
transactions; in such case, no supplement may be required. If an acquisition
of a business or securities in a business combination transaction is not exempt
from registration even if integration is not taken into account, then the
offerees of F&M Common in such acquisition will be furnished with copies of
this Prospectus either (i) together with a Supplement, which will reflect the
registration statement as amended by a post-effective amendment to the
registration statement on Form S-4 which this Prospectus is a part or (ii) if
permitted, as supplemented by the incorporation by reference of information
contained in a current report on Form 8-K filed by F&M.
SEE "RISK FACTORS" BEGINNING ON PAGE 5 FOR A DISCUSSION OF CERTAIN
FACTORS WHICH SHOULD BE CONSIDERED BY PROSPECTIVE ACQUIRORS OF THE F&M COMMON
OFFERED HEREBY.
The date of this Prospectus is October __, 1996.
_____________
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.
<PAGE> 6
AVAILABLE INFORMATION
F&M is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). The reports, proxy
statements and other information filed by F&M with the Commission 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
the Commission's Regional Offices at 7 World Trade Center, New York, New York
10048 and Citicorp Center, 500 West Madison Street, Chicago, Illinois 60661.
Copies of such material can also be obtained from the Public Reference Section
of the Commission, Washington, D.C. 20549 at prescribed rates. Also, the
Commission maintains a Web site (http://www.sec.gov) that contains reports,
proxy and information statements and other information regarding registrants
(such as F&M) that file electronically with the Commission. In addition,
because F&M Common is traded on the NASDAQ Stock Market, material filed by F&M
can be inspected at the offices of National Association of Securities Dealers,
Inc., 1735 K Street N.W., Washington, D.C. 20006.
F&M has filed with the Commission a Registration Statement on Form S-4
(together with any amendments thereto, the "Registration Statement") under the
Securities Act with respect to the securities to be issued pursuant to or as
contemplated by the Agreement. This Prospectus does not contain all the
information set forth in the Registration Statement. Such additional
information may be obtained at the addresses set forth above. Statements
contained in this Prospectus or in any document incorporated in this Prospectus
by reference as to the contents of any contract or other document referred to
herein or therein are not necessarily complete, and in each instance reference
is made to the copy of such contract or other document filed as an exhibit to
the Registration Statement or such other document, each such statement being
qualified in all respects by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
This Prospectus incorporates by reference certain documents of F&M
that are not presented herein or delivered herewith. Such documents (other
than exhibits to such documents unless such exhibits are specifically
incorporated by reference) will be provided without charge to each person,
including any beneficial owner, to whom a Prospectus is delivered, upon written
or oral request of such person. Requests should be directed to F&M
Bancorporation, Inc., One Bank Avenue, Kaukauna, Wisconsin 54130 (telephone
414/766-1717), Attn: Corporate Secretary.
The following documents filed with the Commission by F&M pursuant to
the Exchange Act are incorporated by reference in this Prospectus:
(i) F&M's Annual Report on Form 10-K for the year ended December
31, 1995, as amended by Amendment No. 1 thereto;
(ii) F&M's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1996 and June 30, 1996;
(iii) F&M's Current Reports on Form 8-K dated February 5, 1996 and
June 28, 1996, and Reports on Form 10-C dated June 14, 1996
and June 28, 1996;
(iv) The financial statements of F&M Bank-Algoma (f/k/a Community
State Bank) located at pages F-27 through F-50 of the
Prospectus dated April 25, 1996, forming part of Registration
Statement No. 333-02207, as amended; and
(v) The description of F&M Common included in Item 11 to F&M's
Registration Statement on Form 10, as amended by
Post-Effective Amendment No. 2 thereto filed September 16,
1993.
All reports and definitive proxy or information statements filed by
F&M pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
subsequent to the date of this Prospectus shall be deemed to be incorporated by
reference into this Prospectus from the date of the filings of such documents.
Any statement contained in a document incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this Prospectus to
the extent that a statement contained herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Prospectus.
-2-
<PAGE> 7
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page No.
<S> <C>
SUMMARY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
RISK FACTORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
F&M MARKET INFORMATION AND DIVIDENDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
F&M SUMMARY FINANCIAL DATA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
F&M BANCORPORATION, INC. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
INFORMATION AS TO F&M COMMON . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
PLAN OF DISTRIBUTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
LEGAL OPINIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
EXPERTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
PROCEDURE FOR SUBMITTING SHAREHOLDER PROPOSALS . . . . . . . . . . . . . . . . . . . . . . . . . 14
</TABLE>
________________
NO PERSONS HAVE BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS IN CONNECTION
WITH THE SOLICITATIONS OF PROXIES OR THE OFFERING OF SECURITIES MADE HEREBY
AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED
UPON AS HAVING BEEN AUTHORIZED BY F&M, OR ANY OTHER PERSON. NEITHER THE
DELIVERY OF THIS PROSPECTUS NOR ANY DISTRIBUTION OF SECURITIES MADE HEREUNDER
SHALL, UNDER ANY CIRCUMSTANCES, CREATE AN IMPLICATION THAT THERE HAS BEEN NO
CHANGE IN THE AFFAIRS OF F&M SINCE THE DATE HEREOF OR THAT THE INFORMATION
HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO ITS DATE.
-3-
<PAGE> 8
SUMMARY
The following is a brief summary of certain information contained in
this Prospectus, including summaries of information believed by the parties to
be material. This summary is intended merely to supply pertinent facts and
highlights of the material contained in or accompanying this Prospectus. The
information contained in this summary is qualified by reference to more
detailed information contained elsewhere, or incorporated by reference, in this
Prospectus.
Unless otherwise indicated, all financial and other data per share of
F&M Common, and all data with respect to such shares, in this Prospectus have
been restated to give retroactive effect to F&M's 10% stock dividend which was
paid in June 1996.
F&M Bancorporation, Inc.
F&M, which has its principal executive offices at One Bank Avenue,
Kaukauna, Wisconsin 54130 (telephone: 414/766-1717), had total consolidated
assets of $1.1 billion at June 30, 1996. F&M has 15 Wisconsin state bank
subsidiaries, all of which are FDIC members and are subject to Wisconsin
Division of Banking supervision, with 48 offices, all in Wisconsin. All but
one of the F&M Banks is a member of the Federal Reserve System, and the
remaining bank is in the process of becoming a member. F&M, a Wisconsin
corporation, is a registered bank holding company subject to supervision and
regulation by the Federal Reserve Board ("FRB") under the federal Bank Holding
Company Act of 1956, as amended.
See "F&M Bancorporation, Inc."
Further information regarding F&M, including audited financial
statements, is included in the reports filed with the Securities and Exchange
Commission which are incorporated herein by reference. Offerees may obtain
copies of such documents from the Commission or by request to F&M. See
"Available Information" and "Incorporation of Certain Documents by Reference."
F&M Common
Shares of F&M Common are traded on The NASDAQ Stock Market under the
symbol "FMBK." See "F&M Market Information and Dividends."
F&M is organized under the Wisconsin Business Corporation Law
("WBCL"), which determines the rights of holders of F&M Common, except as
otherwise provided in F&M's Articles of Incorporation. Among other things,
F&M is subject to statutory anti-takeover provisions and its Articles of
Incorporation provide for the classification of its board of directors. In
addition, F&M (and all other corporations incorporated or qualified to do
business in Wisconsin), shareholders are subject to statutory personal
liability for certain employee compensation claims. See "Information as to
F&M Securities."
Method of Distribution
The shares of F&M Common to be offered hereunder will be offered in
business combination transactions. See "Plan of Distribution."
-4-
<PAGE> 9
RISK FACTORS
In evaluating a transaction with F&M, the shareholders of an entity
being acquired should consider carefully the following factors, along with the
other information contained, or incorporated by reference, in this Prospectus,
and any Supplement thereto.
Acquisitions
Since its inception, F&M has experienced substantial growth through
acquisitions of other financial institutions. F&M's strategy to continue to
make acquisitions is dependent upon its ability to identify potential targets
for acquisition and consummate transactions on terms acceptable to F&M.
Also, F&M's future success is dependent in part upon its ability to
integrate the operations of, and manage over time, acquired financial
institutions. F&M has acquired eight financial institutions or offices within
the past four years, including two acquisitions in 1994, one in 1995,
and four in the first half of 1996. The two 1994 acquisitions were the
largest acquisitions undertaken by F&M in terms of the consideration paid and
the size of the acquired institution, respectively. The 1995 acquisition was
F&M's second largest acquisition in both categories. To date in 1996, F&M has
consummated four acquisitions, and announced two others.
Competition
Banks, including the F&M's subsidiary banks (the "F&M Banks") and the
banks proposed to be acquired (together, the "Banks"), actively compete with
other financial institutions and businesses in both attracting and retaining
deposits and making loans. Financial institution competitors include banks,
savings banks, savings and loan associations and credit unions. Other business
competitors include insurance companies, securities brokerage firms, trust
companies and investment management firms. While F&M believes it has a
competitive advantage because 24 of its 48 bank office locations represent the
only commercial bank office in their community, competition with other
financial institutions and businesses can affect the Banks' ability to obtain
and retain customers as well as the pricing levels of their products and
services.
F&M also faces competition in seeking institutions to acquire.
Wisconsin has recently experienced a significant consolidation of its banking
industry, and many large holding companies with greater resources than F&M
(including several out-of-state holding companies) are actively pursuing
acquisitions in Wisconsin. This competition affects the available acquisition
opportunities for F&M and can affect the costs of such acquisitions.
Need for Technological Change
The banking industry is undergoing rapid technological changes with
frequent introductions of new technology-driven products and services. In
addition to better serving customers, the effective use of technology increases
efficiency and enables financial institutions to reduce costs. While F&M's
community banking strategy stresses "traditional" personal service, F&M's
future success will depend in part on its ability to address the needs of its
customers by using technology to provide products and services that will
satisfy customer demands for convenience as well as to create additional
efficiencies in F&M's Banks operations. Many of F&M's competitors have
substantially greater resources to invest in technological improvements.
Banking Industry
The banking industry is highly regulated by both federal and state
regulatory authorities. Regulation includes, among other things, capital
reserve requirements, dividend limitations, limitations on products and
-5-
<PAGE> 10
services offered, geographical limits, consumer credit regulations, community
investment requirements and restrictions on transactions with affiliated
parties. Financial institution regulation has been the subject of significant
legislation in recent years, may be the subject of further significant
legislation in the future, and is not within the control of F&M. This
regulation substantially affects the business and financial results of all
financial institutions and holding companies, including F&M and the Banks.
F&M, as a member of the banking industry, is affected by general
economic conditions, particularly as those conditions affect the Wisconsin
communities served by the F&M Banks. A financial institution's earnings also
depend to a large extent upon the relationship between the cost of funds
(primarily deposits) and the yield on earning assets (loans and investments).
This relationship, known as the interest rate margin, is subject to fluctuation
and is affected by regulatory, economic and competitive factors which influence
interest rates, the volume and rate of interest on interest-earning assets and
interest-bearing liabilities, and the level of non-performing assets.
Dependence on Chief Executive Officer
F&M has historically been highly dependent on the services of its
Chairman and Chief Executive Officer, Gail E. Janssen. F&M does not have an
employment agreement with Mr. Janssen or maintain "key person" life insurance
on Mr. Janssen. F&M has recently taken actions to reorganize operations on a
regional basis and to augment its corporate staff to help support F&M's
substantial growth, to place less dependence on any one individual, and to
anticipate management succession. As part of these actions, F&M employed Gary
A. Lichtenberg as its President and Chief Operating Officer in April 1996.
Cautionary Statement Regarding Forward-Looking Statements
The discussions in this Prospectus, and any Supplement thereto,
contain forward-looking statements that involve risks and uncertainties. F&M's
actual future results could materially differ from those discussed. Factors
that could cause or contribute to such differences include, but are not limited
to, those discussed above in "Risk Factors" and in F&M's Management's
Discussion and Analysis, as well as those discussed elsewhere in this
Prospectus and the documents incorporated herein by reference.
-6-
<PAGE> 11
F&M MARKET INFORMATION AND DIVIDENDS
F&M Common trades on The NASDAQ Stock Market ("NASDAQ") under the
symbol "FMBK". F&M had approximately 2,745 shareholders of record at September
30, 1996. The following table summarizes high and low prices and cash
dividends paid for F&M Common for the periods indicated. The high and low
prices represent actual trade prices as reported on NASDAQ.
<TABLE>
<CAPTION>
CALENDAR CASH DIVIDENDS
PERIOD HIGH LOW PAID PER SHARE
- ------------------------------ ---- --- --------------
<S> <C> <C> <C> <C>
1994 1st quarter 18.64 16.14 .109
2nd quarter 21.59 17.95 .109
3rd quarter 21.14 18.86 .109
4th quarter 20.91 19.09 .109
1995 1st quarter 20.00 18.64 .136
2nd quarter 20.00 17.95 .136
3rd quarter 22.73 18.53 .136
4th quarter 25.00 21.59 .136
1996 1st quarter 25.91 22.05 .164
2nd quarter 31.50 24.55 .164
3rd quarter 31.50 28.25 .17
4th quarter ____ ____
(through October __)
</TABLE>
According to information provided by NASDAQ (as adjusted for the
subsequent stock 10% dividend), the trading volume of F&M Common on NASDAQ was
874,903 shares during 1995, and 670,950 shares during 1994.
F&M has paid quarterly or annual cash dividends since its inception.
The holders of F&M Common are entitled to receive such dividends as are
declared by the board of directors of F&M, which considers (and may change)
payment of dividends quarterly. The ability of F&M to pay dividends is
dependent upon the receipt of dividends from the F&M Banks, payment of which is
subject to regulatory restrictions. In determining cash dividends, the board
of directors of F&M considers the earnings, capital requirements, debt
servicing requirements, financial ratio guidelines issued by the FRB and other
banking regulators, financial condition of F&M and the F&M Banks, and other
relevant factors. See Note 15 of Notes to F&M's Consolidated Financial
Statements and the discussion under "Management's Discussion and Analysis of
Results of Operations and Financial Condition--Financial Condition--Capital
Adequacy," incorporated herein by reference, for restrictions on the ability of
the F&M Banks to pay dividends.
-7-
<PAGE> 12
F&M SUMMARY FINANCIAL DATA
The summary financial data presented below for F&M Bancorporation,
Inc. for each of the years in the three year period ended December 31, 1995 are
derived from the Consolidated Financial Statements of F&M (restated as
described in the footnotes below) and should be read in conjunction with other
financial information incorporated by reference in this Prospectus, such as the
separate Consolidated Financial Statements and notes thereto of F&M, and
Management's Discussion and Analysis of Results of Operations and Financial
Condition.
<TABLE>
<CAPTION>
Six Months ended
June 30, Years ended December 31,
-------------------- -------------------------------------
1996 1995 1995 1994 1993
---- ---- -------- -------- --------
(unaudited; dollars in thousands, except per share data)
<S> <C> <C> <C> <C> <C>
SUMMARY OF OPERATIONS (1)
Interest income $ 41,812 $ 36,479 $ 76,091 $ 63,942 $ 61,302
Interest expense 18,731 16,051 33,807 25,074 25,164
---------- -------- -------- -------- --------
Net interest income 23,081 20,428 42,284 38,868 36,138
Provision for loan losses 820 635 1,653 1,338 1,329
Non-interest income 2,641 2,227 4,649 4,112 5,286
Net income before cumulative
effect of change in
accounting principle (2) 6,978 5,428 11,987 8,425 8,827
Net income 6,978 5,428 11,987 8,425 8,899
Net income applicable to
common stock 6,978 5,428 11,987 8,403 8,713
PERIOD END BALANCE SHEET DATA(1)
Total assets $1,097,227 $962,068 $996,278 $921,384 $877,964
Net loans 789,514 684,704 691,123 642,136 553,291
Total deposits 946,362 822,790 866,712 805,431 768,144
Short-term borrowings 39,070 20,589 12,194 19,846 5,844
Other borrowings 2,333 20,866 10,833 6,366 13,941
Preferred stock 0 0 0 0 2,073
Total shareholders' equity 99,445 88,680 94,067 82,931 82,866
PER SHARE DATA (1)(3)
Net income per common share
before cumulative effect of
change in accounting principle (2) $1.00 $ .80 $1.76 $1.23 $1.33
Net income per common share 1.00 .80 1.76 1.23 1.35
Cash dividends (4) .327 .273 .546 .436 .327
- ------------------
</TABLE>
(1) Includes the results of operations of Bradley Bank from its
acquisition in May 1996. Except as indicated, the data have been
restated to reflect F&M's acquisition of F&M Bank-Portage County in
1993, F&M Bank-Northeast (including both the First National and Pulaski
acquisitions) in 1994, F&M Bank-Waushara County in 1995 and F&M
Bank-Algoma in 1996 using the pooling of interests method of
accounting. See Note 3 of Notes to F&M's Consolidated Financial
Statements incorporated herein by reference. The data prior to
January 1, 1996 have not been restated to reflect F&M's acquisition of
Monycor in February 1996 because that acquisition did not have a
material effect on F&M's results of operations or financial condition.
(2) Cumulative effect of change in accounting principle in 1993 represents
the adoption of SFAS No. 109 (Accounting for Income Taxes) by a bank
subsequently acquired by F&M.
(3) Per share information has been restated to reflect the 10% stock
dividend paid to stockholders on June 10, 1996.
(4) Cash dividends per share are not restated to reflect the acquisitions
accounted for using the pooling of interests method of accounting.
-8-
<PAGE> 13
F&M BANCORPORATION, INC.
F&M Bancorporation, Inc. was formed in 1980 to acquire the shares of
Farmers and Merchants Bank of Kaukauna, Wisconsin (now known as F&M
Bank-Kaukauna). F&M has grown internally and through acquisitions from a
one-bank holding company with total assets of $37 million at its inception to a
15-bank holding company with 48 banking offices, and total assets of $1.1
billion, at June 30, 1996.
At June 30, 1996, F&M's subsidiary banks (the "F&M Banks") ranged in
size from $28 million to $245 million in total assets. The F&M Banks are
community banks which provide a full range of services to consumers and
businesses in small and medium-sized communities throughout Wisconsin. F&M
provides the benefits of holding company affiliation while allowing the F&M
Banks to operate with considerable autonomy.
Pending Acquisitions
Brodhead Acquisition. In August 1996, F&M announced the proposed
acquisition of Green County Bank ("GCB"), with one office in Brodhead in
south-central Wisconsin. In the proposed acquisition, F&M has offered to
acquire GCB in exchange for shares of F&M Common. The total number of shares
of F&M Common would be in a formula amount to be set forth in the definitive
agreement to be executed pursuant to the letter of intent; the total value of
those shares is expected to be approximately $5.1 million. F&M intends to
account for the transaction using the pooling of interests method of
accounting. The acquisition remains subject to execution of a definitive
agreement, GCB shareholder approval, regulatory approvals, and other customary
conditions. While there can be no assurances, F&M expects that the GCB
transaction will be consummated in early 1997.
At June 30, 1996, GCB had total assets of $30.7 million, net loans of
$22.5 million, total deposits of $27.3 million and shareholders' equity of $3.2
million. For the year ended December 31, 1995, GCB had net income of $332,000,
and for the six months ended June 30, 1996, GCB had net income of $177,000.
East Troy Acquisition. In August 1996, F&M announced its pending
acquisition of East Troy Bancshares, Inc. ("ETB"). ETB owns all of the shares
of State Bank of East Troy, with one office in East Troy in south-east
Wisconsin. The agreement with ETB provides that the acquisition of ETB will be
made in exchange for 440,000 shares of F&M Common. F&M intends to account for
the transaction using the pooling of interests method of accounting. The
acquisition remains subject to ETB shareholder approval, regulatory approvals
and other customary conditions. While there can be no assurances, F&M expects
that the ETB transaction will be consummated in early 1997.
At June 30, 1996, ETB had total assets of $54.1 million, net loans of
$42.4 million, total deposits of $44.7 million and shareholders' equity of $8.0
million. For the year ended December 31, 1995, ETB had net income of $693,000,
and for the six months ended June 30, 1996, ETB had net income of $371,000.
Recent Developments
Algoma Acquisition. On June 28, 1996, F&M acquired Community State
Bank ("CSB") (which was subsequently renamed "F&M Bank-Algoma"). In the
transaction, CSB was merged with a wholly-owned subsidiary of F&M; the
outstanding shares of common stock of CSB were converted into 423,172 shares of
F&M Common ("F&M Common"), in a conversion ratio determined pursuant to a
formula set forth in the Agreement, and CSB became a wholly-owned subsidiary of
F&M.
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<PAGE> 14
At December 31, 1995, CSB had total assets of $53.2 million, net loans
of $20.0 million, total deposits of $44.5 million, and shareholders' equity of
$8.2 million. For the fiscal year ended December 31, 1995, CSB had net income
of $629,000. F&M is accounting for the CSB acquisition using the pooling of
interests method of accounting.
Tomahawk Acquisition. On May 10, 1996, F&M acquired Bradley Bank
("Bradley") from its holding company and minority shareholders. Bradley had
two full service offices in Tomahawk, Wisconsin which became branches of F&M
Bank-Lakeland through a merger of Bradley into F&M Bank-Lakeland. The Bradley
acquisition was made for approximately $6.6 million in cash.
At December 31, 1995, Bradley had total assets of $36.1 million, net
loans of $25.5 million, total deposits of $32.6 million and shareholders'
equity of $3.3 million. For the year ended December 31, 1995, Bradley had net
income of $505,000. The Bradley acquisition has been accounted for using the
purchase method of accounting, which means that its assets, liabilities and
financial results are reflected only from and after the date of acquisition.
Little Chute Acquisition. On April 26, 1996, F&M acquired the Little
Chute branch office of TCF Bank Wisconsin. The acquisition included purchase
of fixed assets and assumption of deposit liabilities by F&M Bank-Kaukauna.
The acquisition was a cash transaction, in which F&M purchased the fixed assets
of the Little Chute branch, and was reimbursed in cash (reduced by an
agreed-upon premium) by TCF for the assumption of deposits. At April 26, 1996,
the TCF Little Chute branch office had total deposits of approximately $7.5
million.
Superior Acquisition. On February 5, 1996, F&M acquired Monycor
Bancshares, Inc. ("Monycor") which owned a 98.4% interest in Monycor Bank
(which was subsequently renamed "F&M Bank-Superior"). F&M Bank-Superior is a
Wisconsin state bank headquartered, with a single office, in Superior,
Wisconsin, in the northwestern corner of the state. In the Monycor
transaction, Monycor merged into a subsidiary of F&M, and outstanding shares of
Monycor Common Stock were converted into an aggregate of 157,563 shares of F&M
Common, valued for purposes of the transaction at $3.6 million. F&M
subsequently acquired the remaining minority interest in F&M Bank-Superior.
At December 31, 1995, Monycor had total assets of $29.5 million, net
loans of $18.4 million, total deposits of $26.4 million and shareholders'
equity of $1.7 million. For the fiscal year ended December 31, 1995, Monycor
had net income of $380,000. F&M is accounting for the Monycor transaction
using the pooling of interest method of accounting. However, because the
effect of the transaction on financial statements is not material, F&M is not
restating financial results prior to January 1, 1996 to reflect the Monycor
acquisition.
Additional Green Bay Location. In July 1996, F&M Bank-Northeast
opened a second full service Green Bay office as a de novo branch office.
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Subsidiary Banks
F&M owns 15 subsidiary banks (the "F&M Banks"), all of which are
Wisconsin state banks and members of the FDIC, and each of which (other than
F&M Bank-Algoma) is a member of the Federal Reserve System. The F&M Banks are
subject to the supervision and regulation of the FRB and the Division of
Banking of the Wisconsin Department of Financial Institutions. The Banks are
community banks which provide a full range of services to consumers and
businesses in small and medium-sized communities throughout Wisconsin. F&M
provides the benefits of holding company affiliation while allowing the Banks
to operate with considerable autonomy.
The following table presents certain information as to the F&M Banks.
Each of the F&M Banks is wholly-owned by F&M.
<TABLE>
<CAPTION>
NO. OF FULL TOTAL
YEAR SERVICE OFFICES ASSETS
BANK ACQUIRED (1) AT 9/30/96 AT 6/30/96
---- ------------ -------------- ----------
(in millions)
<S> <C> <C> <C>
F&M Bank-Kaukauna 1980 4 $108.0
F&M Bank-Appleton 1981 3 55.2
F&M Bank-Hilbert 1983 3 28.0
F&M Bank-Winnebago County 1985 3 88.7
F&M Bank-New London 1987 1 31.0
F&M Bank-Portage County 1987 3 61.2
F&M Bank-Fennimore 1988 1 45.0
F&M Bank-Potosi 1988 2 30.6
F&M Bank-Lancaster 1990 1 40.0
F&M Bank-Lakeland 1991 7 137.0
F&M Bank-Kiel 1991 1 41.5
F&M Bank-Northeast 1994 11 244.8
F&M Bank-Waushara County 1995 5 98.7
F&M Bank-Superior 1996 1 30.3
F&M Bank-Algoma 1996 2 51.8
- ------------------
</TABLE>
(1) In the case of F&M Banks resulting from mergers, represents the date
F&M first acquired any of the constituent banks in those mergers.
F&M's network of community banks generally operates with significant
local autonomy, with general oversight and support from F&M. F&M believes this
autonomy allows the F&M Banks to better serve the customers in their respective
communities, and thus enhances the F&M Banks' business opportunities and
operations. After acquiring banks, F&M generally maintains local bank charters
and keeps intact existing management and boards of directors. Generally, F&M
Bank managements operate independently of F&M in selecting deposit products
developed by F&M and in making pricing and credit decisions. F&M maintains an
approval procedure for new loans above certain threshold amounts and provides
ongoing loan review and administration assistance and other services for the
F&M Banks. F&M encourages F&M Bank officers and employees to be active in
community groups and projects.
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<PAGE> 16
INFORMATION AS TO F&M COMMON
The Restated Articles of Incorporation of F&M, as amended (the
"Articles"), provide that F&M has authority to issue 20,000,000 shares of
Common Stock, $1.00 par value ("F&M Common"). The outstanding shares of F&M
Common are, and the shares to be issued in the Merger will be, fully paid and
nonassessable, except for statutory liability of shareholders under Section
180.0622(2) (b) of the Wisconsin Business Corporation Law (the "WBCL"), as
judicially interpreted, for certain unpaid indebtedness to employees for
services rendered.
The holders of F&M Common are entitled to one vote for each share held
of record on each matter submitted to a vote of shareholders. Shareholders
have no cumulative voting rights, which means that the holders of shares
entitled to exercise more than 50% of the voting rights are able to elect all
of the directors. F&M's Articles and Bylaws provide for classification of the
board of directors into three classes, one class being subject to election in
each year, and directors serve three-year terms.
Dividends may be paid to holders of F&M Common when, as and if
declared by the board of directors out of funds legally available therefor,
subject to any contractual restrictions on the payment of dividends. In the
event of any liquidation, dissolution or winding-up of F&M, the holders of F&M
Common will be entitled to receive a pro rata share of the assets of F&M
remaining after payment or provision for payment of the debts and other
liabilities of F&M. The holders of F&M Common are not entitled to any
preemptive, subscription, redemption or conversion rights. See "Management's
Discussion and Analysis of Results of Operations and Financial
Condition--Financial Condition--Capital Adequacy" and Note 15 of Notes to F&M's
Consolidated Financial Statements (which are incorporated herein by reference)
for discussions of restrictions on F&M Banks' ability to pay dividends to F&M.
Certain Statutory Provisions
Except as may otherwise be provided by law, the requisite affirmative
vote of shareholders for certain corporate actions, including a merger or share
exchange with another corporation, sale of all or substantially all of the
corporate property and assets, or voluntary liquidation of F&M, is a majority
of all the votes entitled to be cast on the transaction by each voting group of
outstanding shares entitled to vote thereon. Sections 180.1130 through
180.1134 of the WBCL provide generally that, in addition to the vote otherwise
required by law or the articles of incorporation of an "issuing public
corporation" (defined to mean a corporation domiciled in Wisconsin with at
least 500 shareholders of record, including 100 shareholders of record who have
unlimited voting rights and are Wisconsin residents), certain "business
combinations" not meeting certain adequacy-of-price standards specified in the
statute must be approved by (a) the holders of at least 80% of the votes
entitled to be cast and (b) two-thirds of the votes entitled to be cast by the
corporation's outstanding voting shares owned by persons other than a
"significant shareholder" who is a party to the transaction or an affiliate or
associate thereof. Section 180.1130 defines "business combination" to include,
subject to certain exceptions, a merger or share exchange of the issuing public
corporation (or any subsidiary thereof) with or the sale or other disposition
of substantially all assets of the issuing public corporation to, any
significant shareholder or affiliate thereof. "Significant shareholder" is
defined generally to mean a person that is the beneficial owner of 10% or more
of the voting power of the outstanding voting shares of the issuing public
corporation. The statute also restricts the repurchase of shares and the sale
of corporate assets by an issuing public corporation in response to a take-over
offer. F&M presently meets the definition of "issuing public corporation."
Also, Section 180.1150 of the WBCL provides that the voting power of
shares of an "issuing public corporation" which are held by any person in
excess of 20% of the voting power of the issuing public corporation's shares
shall be limited to 10% of the full voting power of such excess shares. This
statutory voting restriction is not applicable to shares acquired directly from
F&M, to shares acquired in a transaction
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<PAGE> 17
incident to which shareholders of F&M vote to restore the full voting power of
such shares and under certain other circumstances.
Sections 180.1140 through 180.1144 of the WBCL prohibit certain
"business combinations" between a "resident domestic corporation" and a person
beneficially owning 10% or more of the outstanding voting stock of such
corporation (an "interested shareholder") within three years after the date
such person became a 10% beneficial owner (the "acquisition date"), unless the
business combination or the acquisition of such stock has been approved before
the acquisition date by the corporation's board of directors. After such
three-year period, a business combination with the interested shareholder may
be consummated only with the approval of the holders of a majority of the
voting stock not beneficially owned by the interested shareholder, unless the
combination satisfies certain adequacy-of-price standards intended to provide a
fair price for shares held by disinterested shareholders. F&M presently meets
the definition of a "resident domestic corporation."
The foregoing provisions of the WBCL, the classification of F&M's
board of directors and the ability to issue additional shares of F&M Common
without further shareholder approval (except as may be required under NASDAQ
Stock Market corporate governance standards), could have the effect, among
others, of discouraging take-over proposals for F&M or impeding a business
combination between F&M and a major shareholder.
PLAN OF DISTRIBUTION
This Prospectus covers the offer and sale by F&M of up to 1,500,000
shares of F&M Common, which F&M may issue from time to time in connection with
the future acquisitions of other businesses, or securities of other businesses,
in business combination transactions in accordance with Rule 415(a)(1)(viii) of
Regulation C under the Securities Act or as otherwise permitted under the
Securities Act.
F&M expects that the terms upon which it may issue the shares in
business combination transactions will be determined through negotiations with
the boards of directors, principal owners and/or other representatives of the
businesses to be acquired. It is expected that the shares of F&M Common that
are issued will be valued at prices reasonably related to the market prices for
F&M Common prevailing at either the time an acquisition agreement is executed
or at the time an acquisition is consummated.
All expenses to these offerings are expected to be borne by F&M,
although any business to be acquired is likely to be required to bear all of
its expenses in connection with any business combination transaction. Because
any supplement to this registration statement may also constitute a proxy
statement of such acquired business, the acquired business may bear certain of
the expenses relating thereto.
No underwriting discounts or commissions will be paid in connection
with the issuance of shares of F&M Common by F&M in any business combination
transactions, although F&M (or an acquired business) may engage investment
advisors in connection with the evaluation of any specific acquisition.
LEGAL OPINIONS
Quarles & Brady, Milwaukee, Wisconsin, special counsel for F&M, and
McCarty, Curry, Wydeven, Peeters & Haak, Kaukauna, Wisconsin, general counsel
for F&M, will render opinions on the legality of the shares being offered
hereby and as to certain other matters in connection with the business
combination transactions pursuant to which shares of F&M Common may be issued.
Two Quarles & Brady attorneys providing services with respect to the
Registration Statement own an aggregate of 7,810 shares of F&M Common.
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<PAGE> 18
EXPERTS
The consolidated financial statements of F&M as of December 31, 1995
and 1994, and for the years ended December 31, 1995, 1994 and 1993, and the
financial statements of F&M Bank-Algoma (f/k/a Community State Bank) as of, and
for the year ended, December 31, 1995, incorporated by reference in this
Prospectus, have been audited by Wipfli Ullrich Bertelson LLP, independent
certified public accountants, as indicated in their reports with respect
thereto, and are included herein in reliance upon the authority of said firm as
experts in giving said reports.
PROCEDURE FOR SUBMITTING SHAREHOLDER PROPOSALS
Pursuant to Rule 14a-8 under the Securities Exchange Act of 1934, F&M
shareholders may present proper proposals for inclusion in F&M's proxy
statement and for consideration at its annual meeting of shareholders in a
timely manner. If F&M's 1997 annual meeting is held as scheduled, the date for
timely submission is December 1, 1996; if the meeting is materially delayed,
shareholders will be informed of a new date for submission.
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<PAGE> 19
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
F&M is incorporated under the Wisconsin Business Corporation Law (the
"WBCL").
Under Section 180.0851(1) of the WBCL, F&M is required to indemnify a
director or officer, to the extent such person is successful on the merits or
otherwise in the defense of a proceeding, for all reasonable expenses incurred
in the proceeding if such person was a party because he or she was a director
or officer of F&M. In all other cases, F&M is required by Section 180.0851(2)
to indemnify a director or officer against liability incurred in a proceeding
to which such person was a party because he or she was a director or officer of
F&M, unless it is determined that he or she breached or failed to perform a
duty owed to F&M and the breach or failure to perform constitutes: (i) a
willful failure to deal fairly with F&M or its shareholders in connection with
a matter in which the director or officer has a material conflict of interest;
(ii) a violation of criminal law, unless the director or officer had reasonable
cause to believe his or her conduct was lawful or no reasonable cause to
believe his or her conduct was unlawful; (iii) a transaction from which the
director or officer derived an improper personal profit; or (iv) willful
misconduct. Section 180.0858(1) provides that, subject to certain limitations,
the mandatory indemnification provisions do not preclude any additional right
to indemnification or allowance of expenses that a director or officer may have
under F&M's Articles of Incorporation, Bylaws, any written agreement or a
resolution of the Board of Directors or shareholders.
Section 180.0859 of the WBCL provides that it is the public policy of
the State of Wisconsin to require or permit indemnification, allowance of
expenses and insurance to the extent required or permitted under Sections
180.0850 to 180.0858 of the WBCL, for any liability incurred in connection with
a proceeding involving a federal or state statute, rule or regulation
regulating the offer, sale or purchase of securities.
Section 180.0828 of the WBCL provides that, with certain exceptions, a
director is not liable to a corporation, its shareholders, or any person
asserting rights on behalf of the corporation or its shareholders, for damages,
settlements, fees, fines, penalties or other monetary liabilities arising from
a breach of, or failure to perform, any duty resulting solely from his or her
status as a director, unless the person asserting liability proves that the
breach or failure to perform constitutes any of the four exceptions to
mandatory indemnification under Section 180.0851(1) referred to above.
Under Section 180.0833 of the WBCL, directors of F&M against whom
claims are asserted with respect to the declaration of improper dividends or
distributions to shareholders or certain other improper acts which they
approved are entitled to contribution from other directors who approved such
actions and from shareholders who knowingly accepted an improper dividend or
distribution, as provided therein.
Article X of F&M's Bylaws provides that F&M will indemnify any
director or officer who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by or in
the right of F&M) by reason of the fact that he or she is or was a director or
officer of F&M, against expenses reasonably incurred by such person if he or
she acted in good faith and, with respect to any criminal action or proceeding,
had no reasonable cause to believe his or her conduct was unlawful. Directors
and officers are similarly identified under Article X for any action or suit by
or in the right of F&M if they acted in good faith and have not been adjudged
to be liable for misconduct in the performance of their duty to F&M. The
Bylaws also provide that F&M shall have the power to purchase and maintain
insurance on any director or officer for any liability asserted against him or
her and incurred by such person arising out of his or her status as an officer
or director, whether or not
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<PAGE> 20
F&M would have the power to indemnify such person against such liability under
the Bylaws or the WBCL. F&M's Articles of Incorporation and Bylaws do not
limit the indemnification to which directors and officers are entitled under
the WBCL.
Insofar as indemnification for liabilities arising under the Act may
be permitted to directors, officers and controlling persons of F&M pursuant to
the foregoing provisions, or otherwise, F&M 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 F&M of expenses incurred or paid by a director, officer or
controlling person of F&M 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, F&M will, unless in the
opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question of whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
The exhibits set forth on the Exhibit Index attached hereto, which is
incorporated herein by reference, are filed as part of this Registration
Statement.
ITEM 22. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) 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,
represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in
the effective registration statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the registration statement is on Form S-3, Form S- 8 or Form F-3
and the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the registration statement.
(2) 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
II-2
<PAGE> 21
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) 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.
(4) If the registration is a foreign private issuer, to file a
post-effective amendment to the registration statement to include any financial
statements required by 3-19 of Regulation S-X at the start of any delayed
offering or throughout a continuous offering. Financial statements and
information otherwise required by Section 10(a)(3) of the Act need not be
furnished, provided that the registrant includes in the prospectus, by means of
a post-effective amendment, financial statements required pursuant to this
paragraph (a)(4) and other information necessary to ensure that all other
information in the prospectus is at least as current as the date of those
financial statements. Notwithstanding the foregoing, with respect to
registration statements on Form F-3, a post-effective amendment need not be
filed to include financial statements and information required by Section
10(a)(3) of the Act or Section 210.3-19 of this chapter if such financial
statements and information are contained in periodic reports filed with or
furnished to the Commission by the registrant pursuant to section 13 or section
15(d) of the Securities Exchange Act of 1934 that are incorporated by reference
in the Form F-3.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933, each
filing of the registrant's annual report pursuant to section 13(a) or section
15(d) of the Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to Section 15(d) of
the Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(h) 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 referred to in Item 20 of
this registration statement, or otherwise, the registrant has been advised that
in the opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
(i) The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities
Act of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that contains a form of
prospectus 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.
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<PAGE> 22
(x) 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.
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<PAGE> 23
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE
REGISTRANT HAS DULY CAUSED THIS REGISTRATION STATEMENT TO BE SIGNED ON ITS
BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF KAUKAUNA,
STATE OF WISCONSIN, ON OCTOBER 2, 1996.
F&M BANCORPORATION, INC.
By: /s/ Gail E. Janssen
----------------------------------------
Gail E. Janssen, Chairman of the Board
and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Gail E. Janssen and Daniel E. Voet, and
either of them, his true and lawful attorneys-in-fact and agents, with full
power of substitution and resubstitution for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and to file the
same, with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission and any state securities
commission, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of them, or their
or his substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
_______________
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.*
SIGNATURE AND TITLE
<TABLE>
<S> <C>
/s/ Gail E. Janssen /s/ Douglas A. Martin
- --------------------------------------------------- ---------------------------------------------------
Gail E. Janssen, Chairman of the Douglas A. Martin, Director
Board and Chief Executive Officer
/s/ Daniel E. Voet /s/ Duane G. Peppler
- --------------------------------------------------- ---------------------------------------------------
Daniel E. Voet, Chief Financial Officer and Duane G. Peppler, Director
Treasurer (also, Principal Accounting Officer)
/s/ Otto L. Cox /s/ Robert C. Safford
- --------------------------------------------------- ---------------------------------------------------
Otto L. Cox, Director Robert C. Safford, Director
/s/ Glenn L. Schilling
- --------------------------------------------------- ---------------------------------------------------
Paul J. Hernke, Director Glenn L. Schilling, Director
/s/ John W. Johnson
- --------------------------------------------------- ---------------------------------------------------
John W. Johnson, Director Joseph F. Walsh, Director
</TABLE>
_____________
* Each of the above signatures is affixed as of October 2, 1996.
<PAGE> 24
F&M BANCORPORATION, INC.
(THE "REGISTRANT")
EXHIBIT INDEX
TO
REGISTRATION STATEMENT ON FORM S-4
<TABLE>
<CAPTION>
Exhibit Incorporated Herein Filed
Number Description By Reference Herewith
- ------- ----------- -------------------- --------
<S> <C> <C> <C>
5.1 Opinion of Quarles & Brady regarding X
legality of securities being
registered
10.1 Registrant's 1993 Incentive Stock Exhibit A to Registrant's
Option Plan Proxy Statement for 1993
Annual Meeting of
Shareholders ("1993 Proxy
Statement")
10.2 Registrant's 1993 Stock Option Plan Exhibit B to 1993 Proxy
for Non-Employee Directors Statement
10.3 Registrant's Executive Bonus Plan Description thereof under
"Compensation Committee
Report on Executive
Compensation" in
Registrant's Proxy
Statement for 1996 Annual
Meeting of Shareholders
("1996 Proxy Statement")
10.4 Registrant's Deferred Compensation Exhibit 10.6 to
Agreements with: Registrant's Report on Form
10-K for the year ended
December 31, 1992
(a) Gail E. Janssen
(b) Duane G. Peppler
10.5 Registrant's Executive Stock Purchase Description thereof under
Plan "Stock Purchase Plan" in
1996 Proxy Statement
10.6 Noncompetition Agreement dated Exhibit 10.1 to the
February 11, 1994, between the Registrant's Report on Form
Registrant and Robert C. Safford 8-K dated February 11, 1994
</TABLE>
EI-1
<PAGE> 25
<TABLE>
<CAPTION>
Exhibit Incorporated Herein Filed
Number Description By Reference Herewith
- ------- ----------- ------------------- --------
<S> <C> <C>
10.7 Agreement dated November 4, 1993, Exhibit 10.1 to the
between Pulaski Bank (n/k/a F&M Bank Registrant's Report on Form
Northeast) and John W. Johnson 8-K dated March 21, 1994
("3/21/94 8-K")
10.8 Option Agreement dated March 17, 1993, Exhibit 10.2 to 3/21/94 8-K
between Pulaski Bancshares, Inc. and
John W. Johnson, together with the
assumption thereof by the Registrant
dated March 21, 1994
10.9 Stock Exchange Agreement dated as of Exhibit B to the definitive
July 20, 1994, as amended October 31, Prospectus/Proxy Statement
1994, between the Registrant and Union dated November 8, 1994,
State Bank* filed under Rule 424
pursuant to Registration
Statement 33-83632
10.10(a) Plan and Agreement of Merger and Exhibit 2.1 to the
Reorganization dated as of November 1, Registrant's Report on Form
1995 by and among the Registrant, 10-Q for the quarter ended
Monycor Bancshares, Inc. and F&M September 30, 1995
Merger Corporation*
10.10(b) Amendment No. 1 thereto, dated Exhibit 2.1(b) to the
December 1, 1995 Registrant's Report on Form
8-K dated February 5, 1996
10.11 Plan and Agreement of Merger and Exhibit 10.11 to the
Reorganization dated as of January 11, Registrant's Report on Form
1996 by and between F&M Bank-Lakeland 10-K for the year ended
and Bradley Bank* December 31, 1995 ("1995 10-K")
10.12 Branch Purchase Agreement dated as of Exhibit 10.12 to 1995 10-K
January 15, 1996 by and between F&M
Bank-Kaukauna and TCF Bank Wisconsin
fsb*
</TABLE>
EI-2
<PAGE> 26
<TABLE>
<CAPTION>
Exhibit Incorporated Herein Filed
Number Description By Reference Herewith
- ------- ----------- ------------------- --------
<S> <C> <C> <C>
10.13 Agreement and Plan of Merger and Exhibit C to the definitive
Reorganization dated as of prospectus under
February 22, 1996, by and among the Registration Statement No.
Registrant, F&M Interim Bank and 333-02207
Community State Bank*
10.14 Agreement and Plan of Merger and X
Reorganization dated as of August 20,
1996 by and among the Registrant, East
Troy Bancshares, Inc. and F&M Merger
Corporation.*
23.1 Consent of Wipfli Ullrich Bertelson X
LLP.
23.2 Consent of Quarles & Brady X
(included in
Exhibit 5.1)
24 Power of Attorney (contained on the X
Signature Page)
</TABLE>
__________________
* Excluding schedules and exhibits, which are identified in such
documents. The Registrant agrees to furnish supplementally a copy of
any omitted schedule or exhibit to the Commission upon request.
EI-3
<PAGE> 1
[Quarles & Brady letterhead]
[411 East Wisconsin Avenue]
[Milwaukee, Wisconsin 53202]
EXHIBIT 5.1
October 2, 1996
F&M Bancorporation, Inc.
One Bank Avenue
P.O. Box 410
Kaukauna, WI 54130
Gentlemen and Ladies:
We are providing this opinion in connection with the Registration
Statement of F&M Bancorporation, Inc., a Wisconsin corporation ("F&M"), on Form
S-4 (the "Registration Statement") being filed under the Securities Act of
1933, as amended (the "Act"), with respect to the proposed issuance of up to
1,500,000 shares of F&M Common Stock, $1.00 par value (the "Shares"), in
connection with certain possible future business combination transactions (the
"Transactions"; singularly a "Transaction") pursuant to Rule 415(a)(1)(viii)
under the Act.
We have examined: (i) F&M's Articles of Incorporation and Bylaws, as
amended to date; (ii) the Registration Statement, including the form of
Prospectus (subject to completion) contained therein; (iii) corporate
proceedings of F&M, to date, relating to the proposed issuance of the Shares;
and (iv) such other documents as we have deemed necessary in order to render
this opinion.
Based on the foregoing, it is our opinion that:
1. F&M is a corporation validly existing under the laws of the
State of Wisconsin.
2. When (a) the Registration Statement and any post-effective
amendment thereto required by General Instruction H to Form
S-4 shall have become effective under the Act, or the
information necessary in connection with any Transaction is
furnished in a prospectus supplement in compliance with such
General Instruction H, (b) any necessary further corporate
proceedings shall have been taken in connection with the
Transactions covered by the Registration Statement, as the
same may be amended, (c) the parties shall have received any
necessary regulatory approvals required to consummate the
Transactions and issue the Shares relating thereto, and all
other conditions precedent to such issuance shall have been
satisfied or, where permissible, waived, (d) the Transactions
shall have
<PAGE> 2
F&M Bancorporation, Inc.
October 2, 1996
Page 2
been duly consummated in accordance with the terms of the
definitive agreements relating thereto and applicable laws,
and (e) up to 1,500,000 Shares have been duly issued in
accordance with the provisions of such agreements, such Shares
will be validly issued, fully paid and non-assessable by F&M,
subject to the personal liability which may be imposed on
shareholders by Section 180.0622(2)(b) of the Wisconsin
Business Corporation Law, as judicially interpreted, for debts
owing to employees for services performed, but not exceeding
six months service in any one case. Although Section
180.0622(2)(b) provides that such personal liability of
shareholders shall be "to an amount equal to the par value of
shares owned by them respectively, and to the consideration
for which their shares without par value was issued," the
Wisconsin Supreme Court, by a split decision without a written
opinion, has affirmed a judgment holding shareholders of a
corporation liable under the substantially identical
predecessor statute in effect prior to January 1, 1991
(Section 180.40(6)) for unpaid employee wages to an amount
equal to the consideration for which their par value shares
were issued rather than the shares' lower stated par value.
Local 257 of Hotel and Restaurant Employees and Bartenders
International Union v. Wilson Street East Dinner Playhouse,
Inc., 126 Wis. 2d 284, 375 N.W.2d 664 (1985) (affirming the
1983 decision of the Circuit Court for Dane County, Wisconsin,
in Case No. 82-CV-0023).
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement and to the reference of our firm under the caption
"Legal Matters" in the Prospectus. As noted therein, attorneys in our firm who
are providing services with respect to the Registration Statement own an
aggregate of 7,810 shares of Common Stock. In giving our consent, we do not
admit that we are "experts" within the meaning of Section 11 of the Act, or
that we are within the category of persons whose consent is required by Section
7 of the Act or the rules and regulations of the Securities and Exchange
Commission thereunder.
Very truly yours,
/s/ Quarles & Brady
QUARLES & BRADY
<PAGE> 1
EXHIBIT 10.14
Shelf S-4
PLAN AND AGREEMENT OF MERGER AND REORGANIZATION
Plan and Agreement of Merger and Reorganization (hereinafter referred
to as "Agreement"), made as of the 20th day of August, 1996 by and between F &
M Bancorporation, Inc., a Wisconsin Corporation, East Troy Bancshares, Inc., a
Wisconsin corporation and F & M Merger Corporation, a Wisconsin corporation.
1. Definitions.
The following definitions shall apply in this Plan and Agreement of
Merger and Reorganization:
1.1 "Agreement" shall mean this Plan and Agreement of Merger and
Reorganization.
1.2 "BANK" shall mean State Bank of East Troy, 2905 Main Street,
East Troy, Wisconsin 53120.
1.3 "BANK Stock" shall mean BANK's voting capital stock $100.00
par value.
1.4 "Closing Date" shall mean the date set by mutual agreement of
ETB and F & M and will not occur prior to the satisfaction or the waiver of all
of the conditions to the transaction.
1.5 "Effective Time" shall mean the date on which the Articles of
Merger are filed with the State of Wisconsin Secretary of State. A copy of the
proposed Articles of Merger is attached as Exhibit 1.5 and is incorporated
herein by reference. The Articles of Merger shall be filed as soon as possible
after the conditions precedent to this merger have been met or waived by F & M
and ETB, but not prior to the Closing Date.
1.6 "ETB" shall mean East Troy Bancshares, Inc., 2905 Main Street,
P.O. Box 17, East Troy, Wisconsin 53120.
1.7 "ETB Common" shall mean ETB's voting common stock, $1.00 par
value.
1.8 "Exchange Ratio" shall mean the ratio determined by dividing
the F & M Stock Consideration, by the total number of shares of ETB Common
outstanding as of the Closing Date.
1.9 "ETB Counsel" shall mean Schoendorf, Sorgi & Carlson, 184 West
Wisconsin Avenue, Milwaukee, Wisconsin, 53203, Attn.: Ronald M. Carlson.
1.10 "ETB Shareholders" shall mean the shareholders of ETB shown on
the attached Exhibit 1.10.
1.11 "F & M" shall mean F & M Bancorporation, Inc., One Bank
Avenue, Kaukauna, Wisconsin 54130.
1.12 "F & M Common" shall mean F & M's voting common stock, $1.00
par value.
1.13 "F & M Common Price" shall mean the average closing price, as
quoted on the NASDAQ National Market System ("NASDAQ"), for F & M Common for
the fifteen (15) trading days on which F & M Common is actually traded,
immediately preceding the five (5) calendar days prior to the Closing Date of
the transaction.
<PAGE> 2
1.14 "F & M Counsel" shall mean McCarty, Curry, Wydeven, Peeters &
Haak, 120 East Fourth Street, P.O. Box 860, Kaukauna, Wisconsin 54130-0860,
Attn: Randall A. Haak, Esq.
1.15 "Securities Counsel" shall mean Quarles & Brady, 411 East
Wisconsin Avenue, Milwaukee, Wisconsin 53202-4497, Attn: Kenneth V. Hallett,
Esq.
1.16 "Subsidiary" shall mean F & M Merger Corporation, One Bank
Avenue, Kaukauna, Wisconsin 54130.
1.17 "Registration Statement" shall mean the Registration Statement
of F & M pursuant to which the shares of F & M Common to be issued in the
merger will be registered with the Securities and Exchange Commission ("SEC"),
and which shall include the prospectus of F & M relating to the F & M Common
issuable in the transaction and the proxy statement of ETB to its shareholders
relating to approval of the merger (the "Prospectus/Proxy Statement").
2. Preamble.
F & M and Subsidiary are multi-bank holding companies with
subsidiaries located in Wisconsin. Subsidiary is a wholly-owned subsidiary of
F & M. ETB is a one-bank holding company which presently owns 100% of the
issued and outstanding stock of BANK. F & M, Subsidiary and ETB, by their
respective employees and agents have had the opportunity to make such review
and investigation of the other as they deem appropriate and to negotiate the
terms and conditions of this Agreement. F & M, Subsidiary and ETB each believe
that this transaction is in their best interests and in the best interests of
their shareholders and desire to set forth their agreement and understanding in
this Agreement.
The parties have considered the proposed merger and believe that a
merger between ETB and Subsidiary will be the best interest of their respective
corporations and shareholders. The merger of ETB into Subsidiary is intended
to constitute a reorganization within the meaning of Sections 368(a)(1)(A) and
368(a)(2)(E) of the Internal Revenue Code of 1986, as amended.
In consideration of the foregoing and the terms, conditions and
covenants of this Agreement and in reliance on the warranties and
representations contained herein, the parties adopt this Plan and Agreement of
Merger and Reorganization and agree as follows:
3. Merger of ETB into Subsidiary.
3.1 Surviving Corporation. At the Effective Time of the merger,
ETB shall be merged into Subsidiary in accordance with the laws of the State of
Wisconsin. Subsidiary will be the surviving corporation and the separate
corporate existence, identity and organization of ETB, except as specifically
provided by law and this Agreement, shall cease. As the surviving corporation,
Subsidiary shall succeed to and possess all the assets, properties, powers,
privileges, rights and immunities of ETB and shall be subject to all
liabilities, obligations, limitations and duties of ETB as described in this
Agreement.
3.2 Subsidiary Stock Subscription. Subject to the fulfilling of
the conditions precedent to the closing of this transaction set forth below, F
& M will transfer to Subsidiary such shares of F & M Common and cash as may be
necessary to effect the merger, as described under paragraph 3.3 below.
-2-
<PAGE> 3
3.3 Exchange of ETB Common. At the Effective Time, the shares of
the ETB Common shall be converted into shares of F & M Common as follows:
(a) All ETB Shareholders will receive shares of F & M
Common based upon the Exchange Ratio. The Exchange Ratio shall be
calculated by dividing the F & M Stock Consideration by the number of
shares of ETB Common issued and outstanding as of the Closing Date.
The Exchange Ratio shall be multiplied by the number of shares of ETB
Common held by each ETB Shareholder on the Closing Date to determine
the number of shares of F & M Common to be issued to that ETB
Shareholder.
(b) The F & M Stock Consideration will be Four Hundred
Forty Thousand (440,000) shares of F & M Common, adjusted
proportionately as necessary to reflect any stock dividend declared
between the date of this Agreement and the Closing Date and subject to
F & M's right to terminate under paragraph 3.4.
(c) No fractional shares of F & M Common shall be issued;
all fractional shares will be converted to cash in an amount equal to
the fractional share determined in accordance with the formula set
forth above multiplied by F & M Common price.
(d) In the event F & M declares a stock dividend or a stock
split in the form of a stock dividend with respect to F & M Common,
the record date for which is prior to the Closing Date, the F & M
Stock Consideration will be adjusted proportionately to reflect such
stock dividend. For example, if F & M declared a ten percent (10%)
stock dividend, the F & M Stock Consideration shall be increased by
ten percent (10%) from 440,000 shares to 484,000 shares.
3.4 Right to Terminate. F & M shall have the right to terminate
this Agreement, if any of the following occurs prior to the Closing Date:
(a) ETB increases the number of outstanding shares of ETB
Common, or is obligated to do so which obligation is enforceable by its holder
notwithstanding this Agreement, or ETB issues or agrees to issue any other
class of stock or instrument convertible into stock. The actual number of
shares of ETB Common outstanding and any additional shares which ETB is
obligated to issue as of the Closing Date shall be divided into the F & M Stock
Consideration to determine the Exchange Ratio.
(b) The expenses of this transaction [as set forth in
paragraph 4.4(d)] exceed the limit established in paragraph 4.4(d).
(c) The actual earnings of BANK, determined in accordance
with generally accepted accounting principles, applied on a consistent basis,
net of tax effect (the "Actual Earnings") as of the Closing Date are less than
the amount corresponding to such month end as shown on the attached Schedule A
(the "Minimum Earnings"). The expenses of this transaction [as defined in
paragraph 4.4(d)] and any expense necessary to increase the BANK's reserve for
loan and lease losses shall not be considered in determining BANK's Actual
Earnings or Minimum Earnings under this paragraph.
3.5 Articles of Incorporation. The Articles of Incorporation of
Subsidiary in effect immediately prior to the Effective Time of the merger
shall continue in full force and effect as the Articles of Incorporation of the
surviving corporation.
3.6 Bylaws. The Bylaws of Subsidiary in effect immediately prior
to the Effective Time of the merger, shall continue in full force and effect as
the bylaws of the surviving corporation.
3.7 Officers and Directors. The officers and directors of
Subsidiary at the Effective Time of the merger shall remain as the officers and
directors of the surviving corporation.
-3-
<PAGE> 4
4. Representations and Warranties of ETB. ETB, by its duly authorized
officers, directors or other agents makes the following representations and
warranties to F & M each of which is true and correct as of the date hereof,
and shall remain true and correct to and including the Closing Date, and shall
be unaffected by any investigation heretofore or hereafter made by or any
notice to F & M. These representations and warranties shall not survive the
closing.
4.1 Ownership and Authority. The current ETB Shareholders are
listed on the attached Exhibit 1.10.
4.2 ETB Organization and Authority.
(a) ETB is a corporation duly organized, validly existing
and in good standing under the laws of the State of Wisconsin with all
requisite corporate power and authority to own, operate and lease its
properties and to carry on its business as now being conducted and to enter
into and perform its obligations under this Agreement upon receiving the
necessary shareholder and regulatory approval. ETB is duly registered and
authorized to operate as a bank holding company. ETB is only qualified to do
business in the State of Wisconsin.
(b) ETB has good and marketable title to Three Thousand
Eight Hundred (3,800) shares of BANK Stock, free and clear of any and all
claims, mortgages, liens, security interests, pledges or other encumbrances of
any kind whatsoever.
(c) ETB is presently authorized to issue Four Thousand
(4,000) shares of ETB Common. ETB presently has One Thousand Five Hundred
Forty-two and one-half (1,542.5) shares of ETB Common validly and legally
issued and outstanding, all of which are fully paid and nonassessable, except
as provided by Wis. Stats. Section 180.0622(2)(b). Treasury shares will not
participate in this exchange. ETB has not issued, and does not have
outstanding, any option, warrant or convertible securities or other right to
purchase or convert any obligation into such corporation's securities and has
not agreed to issue or sell any additional securities of any type.
(d) The execution, delivery and performance of this Agreement
and the consummation of the transaction contemplated under it have been duly
authorized by appropriate corporate approval and will not violate any provision
of ETB's articles of incorporation or bylaws or any provisions of, or result in
the acceleration of any obligation under the mortgage, lien, lease, agreement,
instrument, court order, arbitration award, judgment or decree to which ETB is
a party, or by which ETB is bound and will not require the consent,
authorization or approval of any other public or private person or entity other
than the approval by ETB's shareholders and the appropriate federal and state
securities and banking regulatory agencies and will not violate any other
restriction of any kind or character to which ETB is subject.
4.3 BANK Organization and Authority.
(a) BANK is duly organized, validly existing and in good
standing under the laws of the State of Wisconsin and has all requisite banking
and corporate power and authority to own, operate and lease its properties and
to carry on its business as now being conducted. BANK's only office is located
in East Troy, Wisconsin. All necessary corporate approval and authorization
and regulatory approval for BANK's present operations has been given and
remains in full force and effect and in good standing.
(b) BANK is authorized to issue Three Thousand Eight
Hundred (3,800) shares of BANK Stock, BANK's only class of stock. BANK has
Three Thousand Eight Hundred (3,800) shares of BANK Stock issued and
outstanding, all of which are legally and validly issued, fully paid and
nonassessable.
(c) BANK has not issued and does not have outstanding any
option, warrant or convertible securities or other right to purchase or convert
any obligation into BANK's securities and has not agreed to issue or sell any
additional securities of any type.
-4-
<PAGE> 5
(d) The execution, delivery and performance of this Agreement
and the consummation of the transaction contemplated under it have been duly
authorized by appropriate corporate approval and will not violate any provision
of BANK's articles of incorporation or bylaws or any provisions of, or result
in the acceleration of any obligation under the mortgage, lien, lease,
agreement, instrument, court order, arbitration award, judgment or decree to
which BANK is a party, or by which BANK is bound and will not require the
consent, authorization or approval of any other public or private person or
entity other than the approval by BANK's shareholders and the appropriate
federal and state bank regulatory agencies and will not violate any other
restriction of any kind or character to which BANK is subject.
(e) East Troy Services, Inc., is duly organized, validly
existing and in good standing under the laws of the State of Wisconsin and had
and continues to have all requisite corporate power and authority and
regulatory approvals to carry on its business as conducted in the past and as
presently conducted. East Troy Services, Inc., is a wholly-owned subsidiary of
BANK.
(f) East Troy Investments, Inc., is duly organized,
validly existing and in good standing under the laws of the State of Delaware
and had and continues to have all requisite corporate power and authority and
regulatory approvals to carry on its business as conducted in the past and as
presently conducted. East Troy Investments, Inc., is a wholly-owned subsidiary
of BANK.
4.4 Financial Matters.
(a) True copies of ETB's consolidated financial statements,
consisting of consolidated balance sheets, consolidated statements of
operations and consolidated statements of stockholders' equity as of the close
of business on December 31, 1995, 1994, and 1993 have been delivered by ETB to
F & M ("ETB's Financial Statements"). All of ETB's Financial Statements are
true and correct in all material respects and present an accurate and complete
disclosure of the financial condition of ETB as of their respective dates, and
the earnings for the periods covered, all determined in accordance with
generally accepted accounting principles, applied on a consistent basis.
(b) ETB and BANK have good marketable title to all of
their assets, business and properties including, without limitation, all such
properties reflected in the ETB's Financial Statements as of December 31, 1995,
free and clear of any mortgage, lien, pledge, security interest, assessment,
levy, charge, claim or other encumbrance, except for real estate and personal
property taxes for 1996 which are not yet due. ETB and BANK do not have any
notice of any special assessment which will be levied or assessed against any
real property owned or leased by them. All real property owned, operated and
leased by ETB and BANK is in full compliance in all material respects with all
applicable federal, state and local statutes and regulations including, but not
limited to, any building codes, safety codes, OSHA regulations, environmental
laws and regulations, the Americans with Disabilities Act, zoning ordinances
and other similar codes, ordinances, and regulations and neither ETB nor BANK
has received any citations, notices, charges or other complaints claiming a
violation of the foregoing nor are ETB or BANK aware of any investigation of
any alleged violation.
(c) All property and assets owned or currently in use by
ETB and BANK, or in which they have an interest (excluding interests which
arise in collateral given to secure loans made by BANK or because of a security
interest granted to BANK) or which are in their possession, are in good
operating condition and repair subject only to normal wear and tear. A
schedule of all real and personal property owned by ETB and BANK is attached as
Exhibit 4.4(c). If ETB or BANK lease any real or personal property, a separate
schedule clearly identifying such leased property will be included in the
Schedules delivered by ETB to F & M. As of the Closing Date, all such
property and assets will be in the condition represented above.
(d) For the period from January 1, 1996 to December 31,
1996, BANK has projected in good faith that its ordinary earnings determined in
accordance with generally accepted accounting principles, applied on a
consistent basis, net of tax effect shall be Seven Hundred Forty-one Eight
Hundred Seventy and 00/100 Dollars ($741,870.00). The expenses of this
transaction are those incurred by BANK for legal, tax
-5-
<PAGE> 6
opinion, accounting and/or auditing or investment banking and/or brokerage fees
or expenses associated with the acquisition of BANK by F & M and will be
reasonable and customary and will not in any event exceed One Hundred Twenty
Thousand and 00/100 Dollars ($120,000.00).
4.5 Changes Since December 31, 1995. Since December 31, 1995,
with respect to ETB and BANK there have not been:
(a) Any loss, damage, destruction or failure to maintain
the tangible assets of ETB or BANK (whether or not covered by insurance), or
affecting their business or properties, which will materially adversely affect
the financial condition or operations ETB or BANK.
(b) Any lapse, revocation, failure to maintain in full
force and effect or other event which, through the passage of time or the
giving of notice, or both could render any insurance coverage previously
maintained by ETB or BANK ineffective in whole or in part.
(c) Any acquisition by ETB or BANK of a capital asset at
a cost in excess of Ten Thousand Dollars ($10,000.00) without prior approval of
F & M, except as listed on the attached Exhibit 4.5(c).
(d) Any amendment to their Articles of Incorporation or
Bylaws.
(e) Any change in accounting procedures, practices or
methods from those used by ETB and BANK in prior years except as may be
necessary to prepare ETB's and BANK's 1995 Financial Statements in accordance
with generally accepted auditing standards.
(f) Any increase in or agreement to increase salaries,
wages, fringe benefits, benefits under any plan subject to ERISA, or other
compensation of any officers, directors, employees or agents of ETB or BANK,
except that for 1996, ETB and BANK may grant wage and/or salary increases
consistent with past practices which do not exceed, in the aggregate, seven
percent (7%) of the wages and salaries being paid as of December 31, 1995.
(g) Any issuance, or agreement to issue, on or before the
Closing Date or thereafter, directly or indirectly, any additional shares of
stock of ETB or BANK.
(h) Any declaration, setting aside or payment of any
dividend or any distribution in respect to ETB's stock or any redemption,
purchase or other acquisition by ETB or BANK of any stock or any other
repayments to the shareholders of ETB or BANK.
(i) Any sale, transfer, or other disposition, prior to
maturity, of any security or other earning asset (exclusive of loans and
leases).
(j) Any borrowings or other indebtedness (excluding
deposit liabilities) in excess of the amounts disclosed by ETB's and BANK's
December 31, 1995 Financial Statements, provided, however, that the total
outstanding balances of such borrowings shall not exceed the total amount
historically borrowed by BANK for similar purposes or in the case of borrowings
from the Federal Home Loan Bank (the "FHLB"), shall not exceed Five Million
Dollars ($5,000,000.00).
(k) Any mortgage, lien, pledge, security interest,
assessment, levy, charge, claim or other encumbrance made with respect to any
of the properties or assets of ETB or BANK in addition to those disclosed by
ETB's and BANK's December 31, 1995 Financial Statements and except as required
by regulation to secure loans from the FHLB,to secure tax deposits transferred
through the Federal Reserve Bank of Chicago and as may be necessary in the
ordinary course of business to secure municipal deposits.
(l) Any sale, transfer or other disposition of assets of
ETB or BANK except in the normal course of business and consistent with past
practices, provided, however, that ETB or BANK may not dispose of any
securities prior to maturity without the prior consent of F & M.
-6-
<PAGE> 7
(m) Any material change in the manner in which business
was being conducted by ETB or BANK prior to December 31, 1995, or other
material failure by ETB or BANK to use their best efforts to maintain its
present business organization (subject to the terms of this Agreement),
employees and customers.
(n) Any loan or commitment to make a loan by BANK with an
interest rate, repayment term, collateral or security requirements or other
conditions which are materially different from those upon which BANK made loans
prior to December 31, 1995, except to the extent such difference is in response
to competitive conditions encountered by BANK.
(o) Any other materially adverse change in ETB's
prospects, financial condition, assets, liabilities, properties or business.
4.6 Liabilities.
(a) Neither ETB nor BANK have any liabilities, whether
accrued, absolute, contingent or otherwise, which arose or relate to any
transaction or occurrence involving ETB or BANK or their respective officers,
directors, employees, agents or servants prior to the date of this Agreement
which are not disclosed by ETB's or BANK's Financial Statements described
above. To the best of their knowledge, after due and diligent inquiry, as of
the date hereof, no known circumstances, conditions, happenings, events or
arrangements, contractual or otherwise, exist which may hereafter give rise to
any such liabilities of ETB or BANK.
(b) To the best of their knowledge, all parties with
whom ETB and BANK have contractual arrangements are in compliance therewith,
except for those loan customers of BANK identified on the attached Exhibit
4.6(b). Neither ETB nor BANK has declared, and is not prepared to declare, any
such parties in default under any such contractual arrangements. Neither ETB
nor BANK is in default in any material respect under any contracts to which it
is a party, nor has any event occurred, which through the passage of time or
the giving of notice or both, would constitute a default under any such
contract or obligation or cause the acceleration of any obligation of ETB or
BANK or result in the creation of a lien, charge, assessment, encumbrance or
other claim whatsoever upon any asset of ETB or BANK. None of the contracts to
which ETB or BANK is a party will be adversely affected by the transaction
contemplated by this Agreement.
(c) To the best of their knowledge, ETB and BANK are in
compliance in all material respects with all applicable federal, state, county
and local statutes, ordinances, regulations, decrees, orders, or other laws.
Neither ETB nor BANK has received notice of any alleged violation of any such
statutes, ordinances, regulations, decrees, orders or other laws, except as set
forth in the attached Exhibit 4.6(c).
(d) No legal, administrative or other proceedings,
investigations or inquiries or other claims, judgments, consent decrees,
stipulations, injunctions or restrictions are either pending or outstanding, or
to the best of their knowledge, threatened against or involving ETB or BANK or
affecting their assets, properties or business. ETB and BANK do not know, or
have any grounds to know of any basis for any such proceedings, investigations
or inquiries or other claims, judgments, consent decrees, stipulations,
injunctions or restrictions, except for normal foreclosure, repossession and
collection litigation described in the attached Exhibit 4.6(d).
(e) The assets and liabilities or potential liabilities
of ETB and BANK are fully insured (except for the deductible thereunder),
except for taxes, deposits, repurchase agreements or other similar deposit-type
instruments, and all policies of insurance carried by ETB or BANK are in full
force and all premiums thereon have been paid in a timely manner and are paid
to date and all bonds have been acquired and maintained on all employees,
agents, officers and directors of ETB or BANK required to be bonded. The
limits of coverage, deductibles and other material nonstandard provisions of
such insurance and bonds are disclosed in the attached Exhibit 4.6(e). Said
insurance and bonds, including but not limited to, general comprehensive
(commercial) public liability insurance covering personal injuries, death and
property
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<PAGE> 8
damage, fidelity bonds and worker's compensation insurance have been acquired
and maintained for at least the past five (5) years.
4.7 Taxes. ETB and BANK have filed all federal, state and local
tax returns and reports covering income, sales, use, real or personal property
or other taxes of any type required to be filed and have paid all taxes
including any interest, penalties and assessments which are due and required to
be paid. The taxes provided for in ETB's Financial Statements and which will
be accrued prior to the Closing Date will be adequate for the payment of any
unpaid taxes as of the Closing Date. ETB's and BANK's income tax returns have
never been audited. Neither ETB nor BANK has waived any restrictions on the
assessment or collection of taxes or consented to the extension of any statute
of limitations relating to any tax liability. Neither ETB nor BANK have
determined or been advised that ETB or BANK may be liable for a material
deficiency or other liability in respect to any state or federal income tax
returns or other tax returns previously filed by ETB or BANK.
4.8 Contracts and Commitments. Neither ETB nor BANK have any
contracts or commitments, either oral or written, with any officer, director,
shareholder, employee, customer, depositor, supplier of goods or services or
any other entity or person which contain any terms or conditions which are not
usual and customary under the circumstances and which may have a material
adverse effect on the operations, profitability or net worth of ETB or BANK.
4.9 Reporting and Withholding on Payment of Interest. To the best
of their knowledge, after due and diligent inquiry, ETB and BANK have fully
complied with the Internal Revenue Code (the "Code"), and all rules and
regulations of the Internal Revenue Service ("IRS") issued thereunder, with
respect to the reporting of payments of interest and other payments by them,
and have complied with all provisions requiring the withholding for income
taxes on such amounts when required. ETB and BANK have instituted adequate
procedures to assure compliance with such provisions. To the best of their
knowledge, all reporting to the IRS required of ETB and BANK has been done in a
timely manner via proper medium. Neither ETB nor BANK have been advised of any
violation or potential violation with respect to such reporting requirements.
4.10 Employees and Employee Benefits.
(a) ETB and BANK are not parties to or bound by any
written or oral (i) employment or employment-related consulting contract which
is not terminable at will by ETB or BANK, as the case may be without penalty,
except as set forth in the attached Exhibit 4.10(a), (ii) plan or agreement
providing for any employee bonus, deferred compensation, pension, profit
sharing, retirement benefits, stock purchase, stock option, employee pension
benefit plan or employee welfare benefit plan except as set forth in the on the
attached Exhibits 4.10(b) and 4.10(c).
(b) All pension, profit sharing, or other employee
pension benefit plans of ETB and BANK("the Plans") are described in Exhibit
4.10(b) and are now, and will continue until the Closing Date to be, qualified
Plans under Section 401(a) of the Code, in full compliance with the Employee
Retirement Income Security Act of 1974 as amended ("ERISA"). To ETB's and
BANK's best knowledge, after due and diligent inquiry, all premiums, notices,
reports and other filings required to be delivered or filed under applicable
law with respect to such Plans have been duly and timely delivered or filed.
Neither ETB nor BANK have knowledge of any fact or circumstance which would
materially and adversely affect such Plans' qualified status or compliance as
above described, or of any "reportable event" (as such term is defined in
Section 4043(c) of ERISA) or any "prohibited transaction" (as such term is
defined in Section 406 of ERISA and Section 4975(c) of the Code) which has
occurred since the date on which said sections first became applicable to the
Plans. The Plans satisfy the minimum funding standards set forth in the Code
and ERISA. As of the Closing Date there will be no unfunded vested liability
of the Plans, except for the obligation of ETB and BANK for contributions for
the current year which are not yet due and payable but for which adequate
amounts are being accrued on a monthly basis.
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<PAGE> 9
(c) All employee welfare benefit plans of ETB and BANK
(the "Welfare Plans") are described in Exhibit 4.10(c) and are now, and will
continue until the Closing Date to be, in full compliance with the Code and the
Employee Retirement Income Security Act of 1974 as amended ("ERISA"). To ETB's
and BANK's best knowledge, all notices, reports and other filings required to
be delivered or filed under applicable law with respect to such Welfare Plans
have been duly and timely delivered or filed. Neither ETB nor BANK have
knowledge of any fact or circumstance which would adversely affect such Welfare
Plans' compliance as above described or any "prohibited transaction" (as such
term is defined in Section 406 of ERISA and Section 4975(c) of the Code) which
has occurred since the date on which said sections first became applicable to
the Welfare Plans.
(d) No person or governmental agency has any pending or
threatened claim against ETB or BANK or their directors, officers, employees or
agents arising out of any statute, ordinance or regulation alleging that ETB or
BANK (i) has discriminated against applicants for employment, employees or the
public, (ii) has any employment practices, policies or procedures which are
discriminatory or have been breached, (iii) failed to comply with federal and
state wage and hour laws, rules or regulations, (iv) violated occupational
safety and health statutes, regulations or standards or (v) has committed an
unfair labor practice(s).
4.11 Environmental Matters.
(a) To the knowledge of ETB and BANK, there has been no
release of any hazardous substance, as defined in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980 ("CERCLA") nor
any release of oil or hazardous substance as provided under Wis. Stats. Section
144.76, on, upon or into the real property owned or leased to ETB or BANK or,
to the best of ETB's and BANK's knowledge upon any real estate or property
which secures any loan made by ETB or BANK or which ETB or BANK have a right to
acquire upon foreclosure or otherwise.
(b) To the knowledge of ETB and BANK, there have been no
such releases on, upon or into any real property adjoining or in the vicinity
of the property described in paragraph 4.11(a) above, which through air, soil
or groundwater migration could have come to be located upon any property owned
or leased by ETB or BANK, or which secures a loan made by ETB or BANK or may be
acquired by ETB or BANK in foreclosure.
4.12 Accuracy of All Statements. No representation or warranty by
ETB or BANK in this Agreement or otherwise, in any of ETB's or BANK's Financial
Statements, or in any other statement, certificate, schedule or exhibit hereto
furnished or to be furnished by or on behalf of ETB or BANK pursuant to this
Agreement, nor any document or certificate delivered to F & M pursuant to this
Agreement or in connection with actions contemplated hereby, contains or shall
contain any untrue statement of material fact or omits or shall omit a material
fact necessary to make the statement contained therein not misleading.
4.13 Prospectus/Proxy Statement. The parts of the Prospectus/Proxy
Statement which were provided or reviewed by ETB and BANK with respect to ETB
and BANK will not, at the date it is first mailed or delivered to ETB's
Shareholders, and will not, at the date or dates of the meeting of ETB's
Shareholders called to approve the Merger, as then amended or supplemented,
contain any statements that are, at the time at which, and in light of the
circumstances under which they are made, false or misleading with respect to
any material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not false or
misleading.
Notwithstanding the foregoing, ETB makes no representation or warranty
regarding and shall have no responsibility for the accuracy of any information
with respect to F & M or Subsidiary or any of their affiliates or subsidiaries
contained in the Prospectus/Proxy Statement.
4.14 Financial Adviser. Except for the services of Robert W.
Baird & Co. Incorporated ("Baird"), ETB has not engaged, consented to engage,
or authorized any financial adviser, broker, investment banker,
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<PAGE> 10
or similar third party to act on its behalf, directly or indirectly, in
connection with the transaction contemplated by this Agreement. Any fees or
expenses payable to Baird shall be paid by ETB, which fees and expenses are
included in the estimate of expenses set forth in paragraph 4.4(d).
4.15 Schedules. The Schedules previously provided by ETB to F & M
as itemized in the attached Exhibit 4.15 to this Agreement are true, complete
and accurate copies of the documents contained therein. ETB will promptly
notify F & M of any changes, amendments, or other modifications to the
Schedules.
5. Representations and Warranties of F & M.
F & M, by its duly authorized officers, employees or other agents
makes the following representations to ETB, each of which is true and correct
as of the date hereof and shall remain true and correct to and including the
Closing Date, shall be unaffected by any investigation heretofore or hereafter
made by or any notice to ETB except as set forth herein. These representations
and warranties shall not survive the closing.
5.1 Organization and Authority.
(a) F & M is a corporation duly organized, validly
existing and in good standing under the laws of the State of Wisconsin with all
requisite corporate power and authority to own, operate and lease its
properties and to carry on its business as now being conducted and to enter
into and perform its obligations under this Agreement, upon receiving the
necessary approval from the federal and state regulatory authorities. F & M is
only qualified to do business in the State of Wisconsin and has received
approval from the Federal Reserve Bank of Chicago to engage in business as a
bank holding company.
(b) Subsidiary is a corporation duly organized, validly
existing and in good standing under the laws of the State of Wisconsin will all
requisite corporate power and authority to own, operate and lease its
properties and to carry on its business as now being conducted and to enter
into and perform its obligations under this Agreement, upon receiving the
approval of its shareholders and the federal and state regulatory authorities.
Subsidiary is only qualified to do business in the State of Wisconsin.
(c) F & M is authorized to issue Twenty Million
(20,000,000) shares of F & M Common and has Six Million, Nine Hundred Eighty
Thousand, Nine Hundred Forty (6,980,940) shares issued and outstanding. F & M
anticipates that additional shares of F & M Common may be issued by it prior to
the Closing Date. F & M has not announced any other acquisition which will
result in the issuance of any additional shares of F & M Common, except as
described in the attached Exhibit 5.1(c). All outstanding shares are legally
and validly issued and fully paid and nonassessable except as provided by Wis.
Stats. Section 180.0622(2)(b).
5.2 Performance of this Agreement. The execution, delivery and
performance of this Agreement and the consummation of the transaction
contemplated under it have been duly authorized by appropriate corporate
approval and will not violate any provision of F & M's or Subsidiary's articles
of incorporation or bylaws or any provisions of, or result in the acceleration
of any obligation under any mortgage, lien, lease, agreement, instrument, court
order, arbitration award, judgment or decree to which F & M or Subsidiary is a
party, or by which F & M or Subsidiary is bound and will not require the
consent, authorization or approval of any other public or private person or
entity other than the approval by F & M as the sole shareholder of Subsidiary
and the appropriate federal and state securities and banking regulatory
agencies and will not violate any other restriction of any kind or character to
which F & M or Subsidiary are subject except as set forth in this Agreement.
5.3 Legality of Shares to be Issued. The shares of F & M Common
to be delivered pursuant to this Agreement, when so delivered, will have been
duly and validly authorized and issued by F & M and will be fully paid and
nonassessable, except as provided by Wis. Stats. Section 180.0622(2)(b).
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<PAGE> 11
5.4 Financial Statements. True copies of the audited consolidated
financial statements of F & M consisting of consolidated balance sheets,
consolidated statements of income, consolidated statements of stockholder's
equity and consolidated statements of cash flows as of the close of business on
December 31, 1995, 1994 and 1993, have been delivered by F & M to ETB (F & M's
Financial Statements). All of F & M's Financial Statements are true and
correct in all material respects and present an accurate and complete
disclosure of the financial condition of F & M as of their respective dates and
of the earnings for the periods covered, in accordance with generally accepted
accounting principles applied on a consistent basis.
5.5 No Warranty or Representation as to Tax Consequences. ETB
expressly understands and agrees that neither F & M nor Subsidiary nor their
respective directors, officers, employees, agents, attorneys or accountants
(acting on behalf of F & M or Subsidiary) have made or are expected to make any
warranty, representation, covenant or agreement, expressed or implied, as to
the tax consequences of the transactions contemplated by this Agreement or the
tax consequences to the ETB Shareholders of any action in furtherance of,
pursuant to or in any way related to this Agreement. The ETB Shareholders
assume any and all responsibility for any tax consequences to them for this
transaction and waive any and all claims in any way related to the tax
consequences of this transaction against F & M or Subsidiary and their
respective directors, officers, employees, agents, attorneys or accountants
(acting on behalf of F & M or Subsidiary). In the event F & M or Subsidiary
receives actual notice from the IRS challenging the tax-free nature of this
reorganization or any prior reorganizations, F & M or Subsidiary will inform
the ETB Shareholders of such notice. F & M and Subsidiary have not sought and
will not seek a private letter ruling from the IRS regarding the tax
consequences of this transaction.
5.6 Litigation. There are no legal, administrative or other
proceedings, investigations or inquiries or other claims, judgments, consent
decrees, stipulations, injunctions or restrictions which may have a material
adverse effect on F & M or Subsidiary either threatened, pending or outstanding
against or involving F & M or Subsidiary or their properties, or business, nor
do F & M or Subsidiary know, or have reasonable grounds to know, of any basis
for any such proceedings, investigations or inquiries, or other claims,
judgments, consent decrees, stipulations, injunctions or restrictions.
5.7 Directors, Officers and Employees of BANK. Neither F & M nor
Subsidiary or their respective directors, officers, employees, agents,
attorneys or accountants have made or will make any representations or
warranties as to any further positions with BANK, F & M or Subsidiary following
the consummation of the transaction contemplated by this Agreement to any
director, officer or employee of ETB or BANK.
5.8 Accuracy of All Statements. No representation or warranty by
F & M or Subsidiary in this Agreement or otherwise, nor any financial
statements, statement, certificate, schedule or exhibit hereto furnished or to
be furnished by or on behalf of F & M or Subsidiary pursuant to this Agreement,
nor any document or certificate delivered to ETB pursuant to this Agreement or
in connection with actions contemplated hereby, contains or shall contain any
untrue statement of material fact or omits or shall omit a material fact
necessary to make the statement contained therein not misleading.
5.9 Prospectus/Proxy Statement. The Prospectus/Proxy Statement
will not, at the date it is first mailed or delivered to ETB's shareholders,
and will not, at the date or dates of the meeting of the ETB Shareholders
called to approve the Merger, as then amended or supplemented, contain any
statements that are at the time at which, and in light of the circumstances
under which they are made, false or misleading with respect to any material
fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein not false or misleading.
Notwithstanding the foregoing, F & M and Subsidiary make no representation or
warranty and shall have no responsibility for the accuracy of any information
contained in or omitted from the Prospectus/Proxy Statement in so far as it
describes the ETB and BANK.
5.10 No Broker. All negotiations relative to this Agreement and
the transaction contemplated hereby have been carried on directly by F & M and
Subsidiary with ETB without the intervention of any broker or third party on
behalf of F & M and Subsidiary. F & M and Subsidiary have not engaged,
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<PAGE> 12
consented to engage, or authorized any broker, investment banker, or third
party to act on its behalf, directly or indirectly, in any capacity in
connection with the transaction contemplated by this Agreement.
5.11 Changes Since December 31, 1995. Since December 31, 1995, with
respect to F & M, there has not been:
(a) Any loss, damage, destruction or failure to maintain
the tangible assets of F & M or affecting its business or properties which will
materially adversely affect the financial condition or operations of F & M.
(b) Any change in accounting procedures, practices or
methods from those used by F & M, except as necessary to meet any changes
required by generally accepted accounting principles.
(d) Any amendment to F & M's Articles of Incorporation or
Bylaws, except as set forth in Exhibit 5.11(c).
6. Covenants of ETB.
ETB hereby covenants and agrees as follows:
6.1 Access to Information. F & M and its authorized
representatives shall have full access during normal business hours to all
properties, books, records, contracts and documents of ETB and BANK and ETB and
BANK shall furnish or cause to be furnished to F & M or its authorized
representatives all information with respect to the affairs and business of ETB
as F & M may reasonably request.
6.2 Actions Prior to Closing. From and after the date of this
Agreement and until the Closing Date, ETB and BANK:
(a) Shall carry on their business diligently and
substantially in the same manner as heretofore and ETB and BANK shall not
engage in or institute any unusual or novel methods of doing business and shall
inform F & M in advance before either introducing any new products or services
or modifying any existing products or services.
(b) Shall not (i) grant any increase in the rates of pay,
salary or compensation provided to its officers, directors or employees, which
in combination with all increases granted since January 1, 1996 exceed in the
aggregate seven percent (7%) of the total compensation paid to the officers,
directors or employees of ETB and BANK as of December 31, 1995, and (ii) shall
not increase or decrease the benefits provided under, the contribution to, the
cost sharing allocation, or the expense or cost to ETB of any employee fringe
benefit or of any of the benefit plans described in Exhibits 4.10(b) and
4.10(c), except for normal adjustments imposed by third party providers.
(c) Shall not enter into any contract or commitment or
engage in any transaction which is not in the normal course of business and
which is not consistent with ETB's and BANK's past business practices.
(d) Shall not create any indebtedness other than (i)
short term indebtedness incurred in the normal course of business, (ii)
indebtedness incurred pursuant to an existing contract previously disclosed to
F & M or (iii) indebtedness other than as necessary to do the acts and things
contemplated by this Agreement.
(e) Shall not declare or pay any cash dividend, stock
dividend or make any other distribution in respect of its stock, or directly or
indirectly redeem, purchase or otherwise acquire any of its own stock, or grant
any stock warrant, stock options or issue directly or indirectly any shares of
common or preferred stock or any other security of any type whatsoever or in
any way dispose of any shares of its own
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<PAGE> 13
stock or any other security, except for the payment of dividends from BANK to
ETB for ETB's normal operations consistent with past practices.
(f) Shall not amend their Articles of Incorporation or
Bylaws or make any changes in authorized or issued stock.
(g) Shall maintain current insurance in effect and
acquire such additional insurance as may be reasonably required by increased
business and risks, and operate, maintain and repair all property in a normal
business manner.
(h) Shall make adequate provision for any income and
property (real and personal) taxes which will be due with respect to any 1996
earnings and shall file all tax reports or returns and pay all income,
franchise, real estate, personal property, sales, use, excise or other taxes on
or before the date on which such reports, returns, or payments are due.
(i) Shall pay all liabilities in a timely manner on or
before their due dates and shall make adequate provision or accruals for all
liabilities of ETB.
(j) Shall use their best efforts (without making any
commitments on behalf of F & M) to preserve their business organization intact,
to keep available to F & M the present key officers and employees of ETB and
BANK and to preserve for F & M the present relationships of ETB and BANK with
their suppliers, customers and others having business relations with them.
(k) Shall not sell or dispose of any property or assets
except in the normal course of business, including but not limited to, selling
or disposing of any securities held by ETB or BANK prior to their normal
maturity dates.
(l) Shall promptly notify F & M of any lawsuits, claims,
proceedings, regulatory actions or investigations that may be threatened,
brought, asserted or commenced against it or its officers, directors, employees
or agents involving in any way the business, properties or assets of ETB or
BANK, except for routine collection litigation which is initiated by BANK and
is not expected to result in any loss to BANK, provided that if any
counterclaim, cross-claim or third-party claim is asserted in such litigation,
F & M shall be given notice thereof.
(m) Shall not make loans or grant credit to any customer
on terms materially more favorable than those which are available under BANK's
current underwriting guidelines. F & M, ETB and BANK understand that BANK, in
order to meet market conditions may need to offer terms more favorable than
those currently offered but that BANK will not be a market leader in this
regard.
(n) Shall not allow BANK's primary capital to asset ratio
(12 C.F.R. Part 325 method), determined in accordance with accepted accounting
standards applicable to preparation of Reports of Condition required to be
filed with the Federal Deposit Insurance Corporation, applied on a consistent
basis, to drop below thirteen percent (13%).
(o) Shall remain in compliance with all agreements,
commitments, understandings, undertakings or other obligations to the
Commissioner, the FDIC or any other regulatory agency having jurisdiction over
ETB and BANK.
(p) Shall cooperate fully and completely with F & M in
the preparation and filing of the Registration Statement, and shall provide to
F & M such information as may be required for use therein pertaining to ETB and
BANK, or their businesses or operations.
(q) Shall not take any action which would be reasonably
likely to make unavailable either the pooling of interest accounting treatment
of the merger or to cause the merger not to qualify as a tax-free
reorganization.
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<PAGE> 14
6.4 Stock Records. Prior to the special shareholders meeting to
approve the Merger, the Board of Directors of ETB, in accordance with its
bylaws, shall take such steps as are necessary to close its stock transfer
books and establish a record date for such meeting after the close of the
transfer books, furnish F & M with a current shareholder list as of such record
date and validly call a special shareholders' meeting or obtain unanimous
consent of shareholders as provided by statute and ETB's bylaws.
6.5 Audit Financial Statements. If audited financial statements of
ETB and/or BANK to permit the shares of F & M Common to be registered with the
SEC, ETB agrees to furnish such statements for the required years to F & M,
provided, however, that the expenses of preparing such statements shall not be
considered in determining BANK's expenses under paragraph 3.4(b) or BANK's
Minimum Earnings under paragraph 3.4(c).
6.6 Reserves for Loan and Lease Losses. Prior to December 31,
1996, BANK shall increase its reserve for loan and lease losses to one and
30/100 percent (1.30%) of loans and leases and shall take such action as may be
necessary to maintain this reserve at this level until the Closing Date.
6.7 Dissolution of East Troy Services, Inc. Prior to December 31,
1996, BANK shall have taken all action to cause East Troy Services, Inc., to be
dissolved and liquidated and such dissolution and liquidation shall have been
completed.
7. Covenants of F & M. F & M and Subsidiary hereby covenant and agree as
follows:
(a) As promptly as practicable after the execution of
this Agreement, F & M and Subsidiary, with the cooperation of ETB, shall
prepare and file with the SEC the Registration Statement. As promptly as
practicable after comments, if any, are received from the SEC on such
preliminary Registration Statement, F & M and Subsidiary, with the cooperation
of ETB, shall file with the SEC an amendment to the Registration Statement
responding to such comments, and shall seek to have such Registration Statement
declared effective. F & M and Subsidiary shall also use their best efforts to
qualify under the blue sky laws of the various states in which common
shareholders of ETB are located the shares of F & M Common Stock to be issued
pursuant to this transaction and shall file the NASD Listing Application in a
timely manner. F & M and Subsidiary shall pay the expenses of preparing and
delivering the joint Prospectus/Proxy Statement for ETB's Shareholders.
(b) As promptly as practicable after the execution of
that Agreement, F & M and Subsidiary shall take action to obtain regulatory
approval of this transaction.
(c) Shall not take any action which would be reasonably
likely to make unavailable either the pooling of interest accounting treatment
of the merger or to cause the merger not to qualify as a tax-free
reorganization.
(d) Notify ETB, at the time of any public announcement,
of any tender offer by another financial institution or holding company to
acquire F & M Common, or of F & M's intention to enter into a merger
agreement with another financial institution or holding company.
(e) ETB and its authorized representatives shall have
full access during normal business hours to all properties, books, records,
contracts and documents of F & M, and F & M shall furnish or caused to be
furnished to ETB or its authorized representatives all information with respect
to the affairs and businesses of F & M or ETB may reasonably request.
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<PAGE> 15
8. Conditions Precedent to F & M's Obligation.
Each and every obligation of F & M and Subsidiary to be performed on
the Closing Date shall be subject to the satisfaction prior thereto of the
following conditions:
8.1 Truth of Representations and Warranties. The representations
and warranties made in this Agreement or given on behalf of ETB and BANK
hereunder, shall have been continuously true and correct from the date of
execution of this Agreement to the Closing Date, and shall be true and correct
on and as of the Closing Date with the same effect as though such
representations and warranties had been made or given on and as of the Closing
Date and ETB and BANK shall have complied with all other terms, conditions and
covenants of this Agreement.
8.2 Compliance with Covenants. Except as expressly set forth in
paragraph 8.7, ETB and BANK shall have performed all of their obligations, and
complied with all of the covenants under this Agreement which are to be
performed or complied with by them from the date of this Agreement through and
as of the Closing Date, including the delivery of the closing documents
specified in paragraph 10.3.
8.3 Absence of Suit. No action, suit or proceeding before any
court or any governmental or regulatory authority shall have been commenced or
threatened, and no investigation by any governmental or regulatory authority
shall have been commenced, against F & M, Subsidiary, ETB or BANK, or any of
the affiliates, associates, officers, directors or employees of any of them,
seeking to restrain, prevent or change the transaction contemplated hereby, or
questioning the validity or legality of any such transaction, or seeking
damages in connection with any of such transaction.
8.4 ETB's Director and Shareholder Authorization. The merger
contemplated by this Agreement shall have been duly and validly authorized by
ETB's directors and shareholders in accordance with the laws of the State of
Wisconsin, including but not limited to the provisions of Wis. Stats. Section
221.565.
8.5 Receipt of Approvals. All approvals, consents and/or waivers,
including any approvals required by any federal or state governmental
regulatory agency, that are necessary to effect the transactions contemplated
hereby shall have been received and all waiting periods thereunder shall have
expired.
8.6 Accuracy of Financial Statements. F & M and Subsidiary and
their representatives shall be reasonably satisfied as to the accuracy of all
interim balance sheets, statements of income and other financial statements of
ETB or BANK furnished to F & M and Subsidiary for periods ended after December
31, 1995.
8.7 BANK Earnings. The Actual Earnings of BANK from January 1,
1996 through the month end prior to the month in which closing occurs,
determined in accordance with generally accepted accounting principles, applied
on a consistent basis shall not be less than the Minimum Earnings from January
1, 1996, through the month end prior to the month in which closing occurs.
8.8 Legal Opinion. F & M shall have received the opinion of ETB
Counsel referred to in subparagraph 10.3(e).
8.9 Accountants' Letters. F & M and Subsidiary shall receive
before the Closing Date the accountants' letters referred to in subparagraphs
10.3(d).
8.10 Time Limit on Closing. Closing shall have taken place by
February 28, 1997.
8.11 Proceedings and Instruments Satisfactory; Certificates. All
proceedings, corporate or otherwise, to be taken in connection with the
transactions contemplated by this Agreement shall have occurred and all
appropriate documents incident thereto as F & M and Subsidiary may reasonably
request
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<PAGE> 16
shall have been delivered to F & M and Subsidiary. ETB and BANK shall have
delivered certificates in such detail as F & M may reasonably request as to
compliance with the conditions set forth in this Article 8.
8.12 Securities Matters. The Registration Statement shall have been
declared effective under the Securities Act of 1933 by the SEC. No stop order
suspending the effectiveness of the Registration Statement shall have
been issued by the SEC and no proceedings for that purpose shall, to the
knowledge of F & M or Subsidiary, on or prior to the Effective Time, have been
initiated or threatened by the SEC. F & M and Subsidiary shall have received
all other federal or state securities permits exemptions, registrations or
other authorizations necessary to issue the F & M Common in exchange for the
ETB Stock to consummate the merger.
8.13 Prospectus/Proxy Statement. The Prospectus/Proxy Statement
will not contain any untrue statement of a material fact or omit any
material fact regarding ETB or BANK required to be stated therein or necessary
to make the statements contained therein, in the light of the circumstances
under which they were made, not misleading.
8.14 Exchange of Stock Certificates. As a condition of delivery of
the consideration required by this Agreement, the ETB Shareholders shall have
executed and delivered documents assigning their shares of ETB Stock to F & M
and/or Subsidiary containing appropriate representations regarding tax matters,
ownership, authority to act, residency and such other matters as F & M shall
request.
8.15 Affiliates of ETB. Each person who shall be deemed to be an
"affiliate" of ETB within the meaning of the Securities Act of 1933 and Rule
145 promulgated by the SEC thereunder shall have executed and delivered to F &
M an Affiliate's Undertaking, in the form attached hereto as Exhibit 8.15,
dated as of the Effective Time.
8.16 Pooling Accounting. The merger contemplated herein shall be
treated as and qualify for accounting using the pooling of interests
method provided that this condition shall be deemed waived if the
disqualification is the result of an omission by F & M.
8.17 Tax Status. No information has been discovered or made known
to F & M or Subsidiary to indicate that the IRS has challenged or intends
to challenge the status of this transaction as a tax-free reorganization.
8.18 Dissenters Rights. That no more than ten percent (10%) of the
total consideration paid by F & M in this transaction, determined in accordance
with the accounting rules applicable to the pooling of interests accounting
treatment, shall be paid in cash, including amounts paid for fractional shares
and amounts paid to ETB Shareholders who exercise their dissenters rights under
Wis. Stats. Section 221.25.
8.19 Subsidiaries. East Troy Services, Inc., shall have been
dissolved and liquidated on or before December 31, 1996. East Troy
Investments, Inc., shall be a wholly-owned subsidiary of BANK.
9. Conditions Precedent to ETB's Obligations.
Each and every obligation of ETB to be performed on the Closing Date
shall be subject to the satisfaction prior thereto of the following conditions:
9.1 Truth of Representations and Warranties. The representations
and warranties made by F & M and Subsidiary in this Agreement or given on their
behalf hereunder, shall be true and correct on and as of the Closing Date with
the same effect as though such representations and warranties had been made or
given on and as of the Closing Date.
9.2 F & M's and Subsidiary's Compliance. F & M and Subsidiary
shall have performed and complied with all of its obligations under this
Agreement which are to be performed or complied with by them prior to or as of
the Closing Date, including delivery of the closing documents.
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<PAGE> 17
9.3 Absence of Suit. No action, suit or proceeding before any
court or any governmental or regulatory authority shall have been commenced or
be threatened and, no investigation by any governmental or regulatory authority
shall have been commenced, against F & M, Subsidiary, ETB or BANK, or any of
the affiliates, associates, officers, directors, or employees of any of them,
seeking to restrain, prevent, or change the transactions contemplated hereby,
or questioning the validity or legality of any such transactions, or seeking
damages in connection with any of such transactions.
9.4 Proceedings and Instruments Satisfactory; Certificates. All
proceedings, corporate or otherwise, to be taken by F & M and Subsidiary in
connection with the transaction contemplated by this Agreement shall have
occurred and all appropriate documents incident thereto as ETB may reasonably
request shall have been delivered to ETB. F & M and Subsidiary shall have
delivered certificates in such detail as ETB may reasonably request to comply
with the conditions set forth in this Article 9.
9.5 Receipt of Approvals. All approvals, consents and or waivers,
including any approvals required by any federal or state governmental
regulatory agency and shareholder approval which ETB shall make a good faith,
best efforts to obtain, that are necessary to effect the transactions
contemplated hereby shall have been received, and all waiting periods shall
have expired provided the failure to obtain the same was not the result of an
act or omission by ETB or BANK.
9.6 Time Limit on Closing. Closing shall have taken place by
February 28, 1997.
9.7 Legal Opinion. ETB shall have received the opinion of F & M
Counsel referred to in subparagraph 10.4(d).
9.8 Prospectus/Proxy Statement. The Prospectus/Proxy Statement will
not contain any untrue statement of material fact or omit any material fact
required to be stated therein or necessary to make the statements contained
therein, in the light of the circumstances under which they were made, not
misleading.
9.9 Tax Status. No information has been discovered or made known to
ETB to indicate that the IRS has challenged or intends to challenge the status
of this transaction as a tax-free reorganization.
10. Closing.
10.1 Time and Place. The closing of this transaction ("Closing")
shall take place at the offices of F & M (or such other place as the parties
may agree) on the Closing Date.
10.2 Rights of ETB Shareholders After the Effective Time. After
the Effective Time and until the surrender of a stock certificate representing
shares of ETB Common, each such outstanding certificate, which prior to the
Effective Time represented shares of ETB Common, shall be deemed for all
purposes, subject to the further provisions of this Agreement, to evidence the
ownership of the number of full shares of F & M Common into which such shares
have been converted; provided, however, that unless and until any such
certificates representing ETB Common shall be so surrendered, the stock
certificate representing the shares, any dividends or other distributions of
any kind payable in respect of shares of F & M Common into which such ETB
Common has been converted, shall be withheld by F & M. Upon the subsequent
surrender and exchange of such ETB Common certificates, such holder of record
of the certificates formerly representing shares of ETB Common (or such
holder's assignee) shall be paid the amount of any such cash dividends or other
distributions, without interest, which became payable under this Agreement to
holders of record of shares of F & M Common on or after the Effective Time and
prior to the surrender and exchange of the certificates. Delivery of
certificates representing shares of F & M Common to former ETB Shareholders who
have tendered their certificates for their shares of ETB Common at or before
the Effective Time shall be made as soon as reasonably possible after the
Effective Time.
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<PAGE> 18
10.3 Documents to be Delivered by ETB. At the time of or prior to
the closing, ETB shall deliver the following documents:
(a) A certificate by the chairman, vice-chairman or
president of ETB and BANK (i) that the representations and warranties made by
ETB or BANK as the case may be in this Agreement are true and correct on as of
the Closing Date with the same effect as though such representations and
warranties had been made on or given on and as of the Closing Date, (ii) that
ETB and BANK have performed and complied with all of their obligations under
this Agreement which are to be performed or complied with by or prior to or on
the Closing Date, and (iii) that all Schedules and Exhibits delivered by ETB to
F & M prior or as of the Closing Date are true, correct and complete as of the
Closing Date.
(b) An Incumbency Certificate for the officers executing
the documents in connection with the transaction contemplated hereby.
(c) Copies of the Articles of Incorporation and Bylaws of
ETB and BANK, duly certified by their respective custodians as true, correct
and complete copies thereof, including any amendments as of the Closing Date.
(d) A letter from ETB's certified public accountants,
prepared in accordance with Statement on Auditing Standards 72, "Letters for
Underwriters and Certain Other Requesting Parties", addressed to F & M dated as
of the Closing Date to the effect that (i) the (audited, if required) financial
statements of ETB included in the Registration Statement comply as to form in
all material respects with the applicable accounting requirements of the
Securities Exchange Act of 1934 and related published rules and regulations,
(ii) nothing came to their attention to cause them to believe that the
unaudited condensed interim financial statements of ETB included in the
Registration Statement do not conform in all material respects with the
applicable requirements of the Securities Exchange Act of 1934 and related
published rules and regulations or that such unaudited condensed interim
financial statements of ETB included in the Registration Statement require
material modifications for them to be in conformity with generally accepted
accounting principles, (iii) except as disclosed in the letter, nothing came to
their attention to cause them to believe that as of the date not earlier than
five (5) days prior to the Closing Date, there was any change from the
unaudited condensed interim financial statements of ETB included in the
Registration Statement in capital stock, increase in long-term debt or any
decrease in stockholders' equity of ETB or there were any decreases for the
period from the date of the unaudited condensed interim financial statements of
ETB included in the Registration Statement to the date not earlier than five
(5) days prior to the Closing Date, as compared with the corresponding period
in the preceding year, in net interest revenue or net income of ETB and that
nothing came to their attention to indicate that the condition set forth in
paragraph 8.7 had not been met. Such letter to F & M requires delivery of a
representation letter to ETB's certified public accountants consistent with the
requirements of Statement on Auditing Standards 72.
(e) A written opinion from ETB counsel dated as of the
Closing Date addressed to F & M and F & M Counsel, in form and substance
substantially in the form attached hereto as Exhibit 10.3(e)
(f) Certified copies of resolutions adopted by ETB's board
of directors to the effect that the execution, delivery and performance of this
Agreement and the transactions contemplated by it have been duly and validly
authorized in accordance with the laws of the State of Wisconsin.
(g) Such other documents of transfer, certificates or
authority and other documents as F & M may reasonably request.
10.4 Documents to be Delivered by F & M and Subsidiary. As of the
Close Date, F & M and Subsidiary shall deliver the following documents:
(a) Certificates for shares of F & M Common and cash
payments as determined under Article 3 of this Agreement. Such certificates
will be in the name of ETB Shareholders entitled to the same
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<PAGE> 19
in accordance with their interest in ETB as of the Effective Time provided,
however, that any certificates need not be delivered until such time as the
provisions of paragraph 10.2 have been complied with by such Shareholders.
(b) An Incumbency Certificate relating to all parties
executing documents relating to any of the transactions contemplated hereby on
behalf of F & M and Subsidiary.
(c) A certificate by an officer of F & M and Subsidiary that,
to the best of such officer's knowledge, (i) the representations and warranties
made by F & M and Subsidiary in this Agreement are true and correct as of the
Closing Date, (ii) that F & M and Subsidiary have performed and complied with
all of their obligations which are to be performed or complied with by or prior
to or as of the Closing Date and (iii) that all Schedules and Exhibits
delivered by F & M to ETB are true, correct and complete as of the Closing
Date.
(d) A written opinion from counsel for F & M and Subsidiary
dated as of the Closing Date addressed to ETB and ETB Counsel in form and
substance substantially in the form attached hereto as Exhibit 10.4(d).
(e) A written opinion from Securities Counsel dated as of the
Effective Time addressed to F & M and ETB, reasonably satisfactory in form and
substance to F & M Counsel, to the effect that the shares of F & M Common
issuable in the transaction are the subject of an effective Registration
Statement with the SEC, and that no stop order relating to such Registration
Statement has been issued by the SEC and that, to the knowledge of such
counsel, no proceedings for that purpose shall have been initiated or
threatened by the SEC.
(f) Certified copies of the resolutions adopted by F &
M's and Subsidiary's boards of directors to the effect that the execution,
delivery and performance of this Agreement and the transactions contemplated by
it have been duly and validly authorized in accordance with the laws of the
State of Wisconsin.
11. Law Governing.
This Agreement shall be construed and interpreted according to the
laws of the State of Wisconsin.
12. Assignment.
This Agreement may not be assigned in whole or in part without the
written consent of all parties, provided, however, that Subsidiary's
participation in this transaction shall not require any further consent or
authorization.
13. Amendment and Modification.
This Agreement may only be amended or modified by a written agreement
signed by the duly authorized representatives of F & M, Subsidiary and ETB.
14. Abandonment.
This Agreement may be terminated and the transaction provided for by
this Agreement may be abandoned at any time before the Closing Date:
(a) By mutual consent of F & M, Subsidiary and ETB;
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<PAGE> 20
(b) By F & M and Subsidiary, pursuant to paragraph 3.4,
or if any of the conditions provided for in Article 8 of this Agreement have
not been met and have not been waived in writing by F & M or Subsidiary.
(c) By ETB if any of the conditions provided for in
Article 9 of this Agreement have not been met and have not been waived in
writing by ETB.
(d) In the event of a breach of this Agreement, by notice
from the non-breaching party to the breaching party as set forth below.
In the event of termination and abandonment by any party as provided
in this Article, written notice shall be given to the other party setting forth
the breach of this Agreement or the default in performance which has occurred,
or the condition which has not been met. The party to whom the notice is
directed shall, if such party is able to effect a satisfaction or cure, have
ten (10) days after such notice is given to satisfy such condition or cure such
breach or default, provided that if such ten (10) day period is not sufficient
and the party is making a diligent effort to satisfy such condition or cure
such breach or default, the time to do so may be extended for such period as
the parties may agree not to exceed thirty (30) days provided however, that the
F & M Per Share Price shall be the higher of the price as of the date of the
notice or as of the date on which the default is satisfied or cured. The
termination and/or abandonment of this Agreement shall not alter or diminish
the liability of the party that failed to comply with the conditions of this
Agreement, provided, however, that termination pursuant to paragraph 3.4 shall
be without liability of any party to any other party. Each party shall pay its
own expenses incident to preparation for the consummation of this Agreement and
the transactions contemplated hereunder. In the event F & M declares, after
the date of this Agreement, a stock dividend or stock split, the F & M Stock
Consideration shall be adjusted proportionately based upon the stock dividend
or split.
15. Notices.
All notices, requests, demands, and other communications hereunder
shall be deemed to have been duly given, upon actual delivery, if delivered by
hand; or upon receipt by the addressee, if given by mail (certified mail -
return receipt requested with postage prepaid is required for notice by mail);
or upon receipt by the addressee, if by private courier; or upon receipt of the
transmission by the addressee if by telecopy (with a copy sent by first class
mail):
(a) If to ETB, to East Troy Bancshares, Inc., 2905 Main
Street, P.O. Box 17, East Troy, Wisconsin 53120, FAX: 414-___- ____, with a
copy to Schoendorf, Sorgi & Carlson, 184 West Wisconsin Avenue, Milwaukee,
Wisconsin 53202, Attn.: Ronald M. Carlson, FAX: 414- 273-7398.
(b) If to F & M or Subsidiary, to Mr. Gail E. Janssen,
One Bank Avenue, Kaukauna, Wisconsin 54130, FAX: 414-766-5628, with a copy to
Randall A. Haak, Esq., McCarty, Curry, Wydeven, Peeters & Haak, P.O. Box 860,
Kaukauna Wisconsin 54130, FAX: 414-766-4756.
The place to which notice is to be given may be changed by notice
given in accordance with this Article.
16. Entire Agreement.
This Agreement with Exhibits embodies the entire agreement between the
parties hereto with respect to the transaction contemplated herein and
supersedes all prior agreements, written or oral, express or implied and all
negotiations, discussions or other matters between the parties and there have
been and are no agreements representations or warranties between the parties
other than those set forth or provided for herein.
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<PAGE> 21
17. Counterparts.
This Agreement may be executed in two (2) or more partially or fully
executed counterparts, each of which shall be deemed an original and shall bind
the signatory, but all of which together shall constitute but one and the same
instrument.
18. Binding Effect.
This Agreement shall inure to the benefit of and bind the parties and
their respective heirs, beneficiaries, transferees, successors, and assigns.
19. Headings.
The headings of this Agreement are inserted for convenience only and
shall not constitute a part hereof.
20. Confidentiality.
Except as necessary to take action pursuant to this Agreement, each
party agrees that all information and documents received from the other party
regarding the proposed transaction shall be held in confidence and that all
documents containing such information will be returned upon request if the
parties abandon the transaction. The parties further agree to use such
information only in connection with the proposed transaction contemplated by
this Agreement. This paragraph shall not apply to information or documents
which are, or by law must be made, publicly available. The parties agree to
not publicly disclose this Agreement or its Exhibits or any of the provisions
hereof, except as a part of regulatory filings or pursuant to press releases
and other public statements approved by F & M and ETB.
21. Further Documents.
F & M, Subsidiary, and ETB agree to execute any and all other
documents and to take such other action or corporate proceedings as may be
reasonably necessary or desirable to carry out the terms hereof.
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<PAGE> 22
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed all as of the day and year first above written.
F & M BANCORPORATION, INC. ("F & M")
By: /s/ Gail E. Janssen
---------------------------------
Gail E. Janssen, CEO and Chairman
of the Board
ATTEST:
By: /s/ Randall A. Haak
---------------------------------
Randall A. Haak, Assistant
Secretary
F & M MERGER CORPORATION ("SUBSIDIARY")
By: /s/ Gail E. Janssen
---------------------------------
Gail E. Janssen, President
ATTEST:
By: /s/ Daniel E. Voet
---------------------------------
Daniel E. Voet, Secretary
EAST TROY BANCSHARES, INC. ("ETB")
By: /s/ Roger C. Stuckmann
---------------------------------
Roger C. Stuckmann, President
ATTEST:
By: /s/ Richard A. Sawatzke
---------------------------------
Richard A. Sawatzke, Secretary
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<PAGE> 1
EXHIBIT 23.1
[Wipfli Ullrich Bertelson LLP
CPAs Consultants Advisors
Letterhead]
CONSENT OF WIPFLI ULLRICH BERTELSON LLP
We consent to the incorporation by reference of our reports on the financial
statements of F&M Bancorporation, Inc. (dated February 2, 1996) and Community
State Bank (dated March 8, 1996) in this Registration Statement on Form S-4,
and to the references to our firm under the heading "Experts" in the prospectus
forming part of the Registration Statement.
/s/ Wipfli Ullrich Bertelson LLP
October 1, 1996
Appleton, Wisconsin
