<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT PURSUANT TO SECTION 13 OR 15 (D) OF
THE SECURITIES ACT OF 1934
DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED): AUGUST 21, 1994
INVESTORS BANK CORP.
- - --------------------------------------------------------------------------------
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 0-16163 41-1566301
- - --------------------------------------------------------------------------------
(STATE OR OTHER (COMMISSION FILE (I.R.S. EMPLOYER
JURISDICTION OF NUMBER) IDENTIFICATION NO.)
INCORPORATION)
200 EAST LAKE STREET, WAYZATA, MINNESOTA 55413
- - --------------------------------------------------------------------------------
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: (612) 475-8500
- - --------------------------------------------------------------------------------
- - --------------------------------------------------------------------------------
(FORMER NAME OR ADDRESS, IF CHANGED SINCE LAST REPORT.)
Page 1 of 94
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Item 5. OTHER EVENTS.
On August 21, 1994, Investors Bank Corp. ("IBC"), Firstar Corporation
("Firstar") and Firstar Corporation of Minnesota ("Firstar Minnesota") entered
into an Agreement and Plan of Reorganization (the "Agreement"), pursuant to
which IBC will be merged (the "Merger") with and into Firstar Minnesota.
Pursuant to the Merger, each outstanding share of Common Stock of IBC would
become .8676 shares of Firstar Common Stock and each outstanding share of IBC's
Cumulative Perpetual Preferred Stock, Series 1991 would become the right to
receive $27.50 (plus accumulated and unpaid dividends) in cash (subject to
dissenters' rights). The 303,240 outstanding warrants to purchase 202,160
shares of IBC Common Stock would become warrants to purchase 175,394 shares of
Firstar Common Stock. The Merger is intended to be tax free for federal income
tax purposes to holders of IBC Common Stock and to be accounted for as a
"pooling of interest." The Merger is subject to a number of conditions,
including regulatory approval.
The Agreement also calls for the merger of Investors Savings Bank, F.S.B.,
the federal savings bank subsidiary of IBC, with and into Firstar Bank
Minnesota, N.A. on the date of, and immediately after effectiveness of, the
Merger.
Firstar may terminate the Agreement on or before September 11, 1994 after
completion of its due diligence investigation of certain loan files. Investors
may terminate the Agreement if the trading price of Firstar Common Stock during
the ten trading days ending three days before the special stockholders' meeting
to approve the Merger is below $29 per share and at least 12.5% below an index
composed of certain commercial banks.
The Agreement also requires IBC to use its best efforts to repurchase
shares of IBC Common Stock to be held in treasury for issuance upon exercise of
outstanding options and warrants, to the extent such repurchases do not exceed
$2,000,000.
The approval and announcement of the Merger is exempt from the provisions
of the IBC Shareholder Rights Plan. To make clear this clear, Investors has
amended its Shareholder Rights Agreement.
All of the executive officers and directors of IBC have entered into voting
agreements that require them to vote for the Merger at a special meeting of
stockholders that will be called for such purpose.
The foregoing summary of the Agreement does not purport to be complete.
Reference is made to the press release and the complete copy of the Agreement
filed as Exhibits to this Form 8-K for more complete information.
Item 7. FINANCIAL STATEMENTS AND EXHIBITS.
(c) Exhibits
2.1 Agreement and Plan of Reorganization between Investors Bank
Corp., Firstar Corporation and Firstar Corporation of
Minnesota
2.2 Form of Voting Agreement
4.1 First Amendment to Rights Agreement
Page 2 of 94
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20.1 Press Release relating to execution of Agreement and Plan of
Reorganization
20.2 Press Release relating to Stock Repurchase Plan
Page 3 of 94
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities and Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
INVESTORS BANK CORP.
By /s/ Lynn V. Bueltel
-----------------------------------
Lynn V. Bueltel, Senior Vice
President and Chief Financial
Officer
Dated: August 22, 1994
Page 4 of 94
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INVESTORS BANK CORP.
CURRENT REPORT ON
FORM 8-K
EXHIBIT INDEX
Exhibit No. Description Page
- - ----------- ----------- -----
2.1 Agreement and Plan of Reorganization between Investors Bank . . 6
Corp., Firstar Corporation and Firstar Corporation of Minnesota
2.2 Form of Voting Agreement . . . . . . . . . . . . . . . . . . . . 86
4.1 First Amendment to Rights Agreement . . . . . . . . . . . . . . 90
20.1 Press Release relating to execution of Agreement and Plan of . 92
Reorganization
20.2 Press Release relating to Stock Repurchase Plan . . . . . . . . 94
Page 5 of 94
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EXHIBIT 2.1
AGREEMENT AND PLAN OF REORGANIZATION
AMONG
FIRSTAR CORPORATION,
FIRSTAR CORPORATION OF MINNESOTA
AND
INVESTORS BANK CORP.
Page 6 of 94
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TABLE OF CONTENTS
PAGE
ARTICLE I
THE MERGER . . . . . . . . . . . . . . . . . . . . . . . . 1
1.01. The Merger . . . . . . . . . . . . . . . . . . . . . 1
1.02. Effective Time of the Merger . . . . . . . . . . . . 2
1.03. Closing . . . . . . . . . . . . . . . . . . . . . . 2
1.04. Form of Transaction . . . . . . . . . . . . . . . . 2
1.05. Bank Merger . . . . . . . . . . . . . . . . . . . . 3
ARTICLE II
EFFECT OF THE MERGER ON INVESTORS CAPITAL STOCK . . . . . . . . . . . 3
2.01. Effect on Capital Stock . . . . . . . . . . . . . . 3
2.02. Effect on Options to Purchase Investors Common Stock 4
2.03. Effect on Warrants to Purchase Investors Common Stock 4
2.04. Effect on Investors Restricted Stock . . . . . . . . 5
2.05. Adjustment to Exchange Ratio . . . . . . . . . . . . 5
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF INVESTORS . . . . . . . . . . . . . 5
3.01. Organization, Standing and Power . . . . . . . . . . 5
3.02. Investors Subsidiaries . . . . . . . . . . . . . . . 6
3.03. Capital Structure . . . . . . . . . . . . . . . . . 7
3.04. Authority . . . . . . . . . . . . . . . . . . . . . 8
3.05. Investors Financial Statements . . . . . . . . . . . 10
3.06. Reports . . . . . . . . . . . . . . . . . . . . . . 11
3.07. Authorizations; Compliance with Applicable Laws . . 11
3.08. Litigation and Claims . . . . . . . . . . . . . . . 13
3.09. Taxes . . . . . . . . . . . . . . . . . . . . . . . 13
3.10. Certain Agreements . . . . . . . . . . . . . . . . . 14
3.11. Benefit Plans . . . . . . . . . . . . . . . . . . . 15
3.12. Insurance . . . . . . . . . . . . . . . . . . . . . 16
3.13. Conduct of Investors to Date . . . . . . . . . . . . 17
3.14. Properties, Leases and Other Agreements . . . . . . 18
3.15. Opinion of Financial Advisor . . . . . . . . . . . . 19
3.16. Vote Required . . . . . . . . . . . . . . . . . . . 19
3.17. Accounting and Tax Matters . . . . . . . . . . . . . 19
3.18. Dissenters' Rights . . . . . . . . . . . . . . . . . 19
3.19. Affiliates . . . . . . . . . . . . . . . . . . . . . 19
3.20. Affiliate Transactions . . . . . . . . . . . . . . . 19
3.21. Interest Rate Risk Management Instruments . . . . . 20
3.22. Regulatory Impediments . . . . . . . . . . . . . . . 20
3.23. Amendments to Employment and Severance Agreements;
Noncompetition Agreements . . . . . . . . . . . . . 20
3.24. Full Disclosure . . . . . . . . . . . . . . . . . . 21
3.25. No Discussions . . . . . . . . . . . . . . . . . . . 21
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF FIRSTAR AND SUB . . . . . . . . . . 21
4.01. Organization, Standing and Power . . . . . . . . . . 21
4.02. Firstar Subsidiaries . . . . . . . . . . . . . . . . 22
4.03. Capital Structure . . . . . . . . . . . . . . . . . 22
Page 7 of 94
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4.04. Authority . . . . . . . . . . . . . . . . . . . . . 23
4.05. Firstar Financial Statements . . . . . . . . . . . . 23
4.06. Reports . . . . . . . . . . . . . . . . . . . . . . 24
4.07. Authorizations; Compliance with Applicable Laws . . 24
4.08. Litigation . . . . . . . . . . . . . . . . . . . . . 25
4.09. Taxes . . . . . . . . . . . . . . . . . . . . . . . 25
4.10. Certain Agreements . . . . . . . . . . . . . . . . . 25
4.11. Benefit Plans . . . . . . . . . . . . . . . . . . . 25
4.12. Absence of Certain Changes or Events . . . . . . . . 26
4.13. Properties, Leases and Other Agreements . . . . . . 26
4.14. Accounting and Tax Matters . . . . . . . . . . . . . 27
4.15. Regulatory Impediments . . . . . . . . . . . . . . . 27
ARTICLE V
COVENANTS OF INVESTORS . . . . . . . . . . . . . . . . . . . . . . . . 27
5.01. Affirmative Covenants . . . . . . . . . . . . . . . 27
5.02. Negative Covenants . . . . . . . . . . . . . . . . . 28
5.03. Letter of Investors' Accountants . . . . . . . . . . 32
5.04. Access and Information . . . . . . . . . . . . . . . 32
5.05. Update Disclosure; Breaches . . . . . . . . . . . . 33
5.06. Affiliates; Accounting and Tax Treatment;
Stock Repurchases . . . . . . . . . . . . . . . . . 33
5.07. Dissent Process . . . . . . . . . . . . . . . . . . 34
5.08. Expenses . . . . . . . . . . . . . . . . . . . . . . 34
5.09. Delivery of Stockholder List . . . . . . . . . . . . 34
5.10. Audited Financial Statements . . . . . . . . . . . . 34
5.11. Bank-Level Transactions . . . . . . . . . . . . . . 34
5.12. Sale of Investment Securities . . . . . . . . . . . 35
5.13. Accounting Matters . . . . . . . . . . . . . . . . . 35
5.14. Servicing Rights . . . . . . . . . . . . . . . . . . 35
5.15. Stockholder Meeting . . . . . . . . . . . . . . . . 35
5.16. Acquisitions of Real Estate . . . . . . . . . . . . 36
5.17. Debt Redemption . . . . . . . . . . . . . . . . . . 36
5.18. Investors Warrants Notices . . . . . . . . . . . . . 36
ARTICLE VI
COVENANTS OF FIRSTAR AND SUB . . . . . . . . . . . . . . . . . . . . . 36
6.01. Affirmative Covenants . . . . . . . . . . . . . . . 36
6.02. Negative Covenants . . . . . . . . . . . . . . . . . 36
6.03. Firstar Rights Plan . . . . . . . . . . . . . . . . 37
6.04. Breaches . . . . . . . . . . . . . . . . . . . . . . 37
6.05. Stock Exchange Listing . . . . . . . . . . . . . . . 37
6.06. Firstar Bank Board . . . . . . . . . . . . . . . . . 37
6.07. Supplemental Warrant Agreement . . . . . . . . . . . 37
6.08. Supplemental Indenture . . . . . . . . . . . . . . . 37
6.09. Accounting and Tax Treatment . . . . . . . . . . . . 38
6.10. Bank Merger Agreement . . . . . . . . . . . . . . . 38
6.11. Expenses . . . . . . . . . . . . . . . . . . . . . . 38
ARTICLE VII
ADDITIONAL AGREEMENTS . . . . . . . . . . . . . . . . . . . . . . . 38
7.02. Registration Statement . . . . . . . . . . . . . . . 39
7.03. Indemnification and Insurance . . . . . . . . . . . 40
Page 8 of 94
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7.04. Reports . . . . . . . . . . . . . . . . . . . . . . 42
7.05. Brokers or Finders . . . . . . . . . . . . . . . . . 42
7.06. Additional Agreements; Reasonable Efforts . . . . . 43
7.07. Environmental Audits . . . . . . . . . . . . . . . . 43
7.08. Firstar Benefit Plans . . . . . . . . . . . . . . . 44
ARTICLE VIII
CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . . . . . . 44
8.01. Conditions to Each Party's Obligation to Effect the
Merger . . . . . . . . . . . . . . . . . . . . . . 44
8.02. Conditions of Obligations of Firstar and Sub . . . . 45
8.03. Conditions of Obligations of Investors . . . . . . . 48
ARTICLE IX
INDUCEMENT . . . . . . . . . . . . . . . . . . . . . . . 50
9.01. Inducement . . . . . . . . . . . . . . . . . . . . . 50
ARTICLE X
TERMINATION AND AMENDMENT . . . . . . . . . . . . . . . . . . . . . . 52
10.01. Termination . . . . . . . . . . . . . . . . . . . . 52
10.02. Investigation and Review . . . . . . . . . . . . . . 55
10.03. Effect of Termination . . . . . . . . . . . . . . . 55
10.04. Amendment . . . . . . . . . . . . . . . . . . . . . 56
10.05. Extension; Waiver . . . . . . . . . . . . . . . . . 56
ARTICLE XI
GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . 56
11.01. Nonsurvival of Representations, Warranties and
Agreements . . . . . . . . . . . . . . . . . . . . 56
11.02. Notices . . . . . . . . . . . . . . . . . . . . . . 56
11.03. Interpretation . . . . . . . . . . . . . . . . . . . 57
11.04. Counterparts . . . . . . . . . . . . . . . . . . . . 58
11.05. Entire Agreement; No Third Party Beneficiaries;
Rights of ownership . . . . . . . . . . . . . . . . 58
11.06. Governing Law . . . . . . . . . . . . . . . . . . . 58
11.07. Publicity . . . . . . . . . . . . . . . . . . . . . 58
11.08. Assignment . . . . . . . . . . . . . . . . . . . . . 58
11.09. Knowledge of the Parties . . . . . . . . . . . . . . 59
Page 9 of 94
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EXHIBIT A Plan of Merger
EXHIBIT B Bank Merger Agreement
EXHIBIT 5.06 Affiliate Letter
EXHIBIT 7.07 Certain Properties
EXHIBIT 10.01 Index Group
Page 10 of 94
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INDEX OF DEFINED TERMS
SECTION
-------
Affiliates . . . . . . . . . . . . . . . . . . . . . . . . 3.19
Agreement . . . . . . . . . . . . . . . . . . . . . . . . . Page 1
Articles of Merger . . . . . . . . . . . . . . . . . . . . 1.02
Audited Properties . . . . . . . . . . . . . . . . . . . . 7.07
Bank Merger . . . . . . . . . . . . . . . . . . . . . . . . Page 1
Bank Merger Agreement . . . . . . . . . . . . . . . . . . . Page 1
Benefit Plans . . . . . . . . . . . . . . . . . . . . . . . 3.11(a)
BHC Act . . . . . . . . . . . . . . . . . . . . . . . . . . 3.04
Certificate of Merger . . . . . . . . . . . . . . . . . . . 1.02
Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.03(a)
Closing . . . . . . . . . . . . . . . . . . . . . . . . . 1.03
Closing Date . . . . . . . . . . . . . . . . . . . . . . . 1.03
Code . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.09(a)
Competing Transaction . . . . . . . . . . . . . . . . . . . 5.02(f)
Comptroller . . . . . . . . . . . . . . . . . . . . . . . . 1.03
Conversion . . . . . . . . . . . . . . . . . . . . . . . . 1.04
DGCL . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.01
EDP Agreement . . . . . . . . . . . . . . . . . . . . . . . 3.10
Effective Time . . . . . . . . . . . . . . . . . . . . . . 1.02
Environmental Audits . . . . . . . . . . . . . . . . . . . 7.07
Environmental Laws . . . . . . . . . . . . . . . . . . . . 3.07(b)
Environmental Reports . . . . . . . . . . . . . . . . . . . 7.07
ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.11(a)
Exchange Act . . . . . . . . . . . . . . . . . . . . . . . 3.04
Exchange Ratio . . . . . . . . . . . . . . . . . . . . . . 2.01(a)
Excused Actions . . . . . . . . . . . . . . . . . . . . . . 10.01(a)(ix)
Expenses . . . . . . . . . . . . . . . . . . . . . . . . . 5.08(b)
FDI Act . . . . . . . . . . . . . . . . . . . . . . . . . . 3.04
FDIC . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.02
Federal Reserve Board . . . . . . . . . . . . . . . . . . . 1.03
FHLB Borrowings . . . . . . . . . . . . . . . . . . . . . . 3.13
Final Index Price . . . . . . . . . . . . . . . . . . . . . 10.01(b)(iv)
Final Price . . . . . . . . . . . . . . . . . . . . . . . . 10.01(b)(iii)
Firstar . . . . . . . . . . . . . . . . . . . . . . . . . . Page 1
Firstar Average Price . . . . . . . . . . . . . . . . . . . 10.01(a)(vi)(1)
Firstar Bank . . . . . . . . . . . . . . . . . . . . . . . Page 1
Firstar Benefit Plans . . . . . . . . . . . . . . . . . . . 4.11
Firstar Committee . . . . . . . . . . . . . . . . . . . . . 10.02
Firstar Common Stock . . . . . . . . . . . . . . . . . . . 2.01(a)
Firstar Disclosure Letter . . . . . . . . . . . . . . . . . 4.02
Firstar Financial Statements . . . . . . . . . . . . . . . 4.05
Firstar Material Adverse Effect . . . . . . . . . . . . . . 4.01
Firstar Permits . . . . . . . . . . . . . . . . . . . . . . 4.07
Firstar Reports . . . . . . . . . . . . . . . . . . . . . . 4.06
Page 11 of 94
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SECTION
Firstar Restricted Stock . . . . . . . . . . . . . . . . . 2.04
Firstar Right . . . . . . . . . . . . . . . . . . . . . . . 2.01(a)
Firstar Rights Agreement . . . . . . . . . . . . . . . . . 2.01(a)
Firstar Stock Option . . . . . . . . . . . . . . . . . . . 2.02
Firstar Subsidiary . . . . . . . . . . . . . . . . . . . . 4.02
Firstar Warrant . . . . . . . . . . . . . . . . . . . . . . 2.03
Governmental Entity . . . . . . . . . . . . . . . . . . . . 3.04
HOLA . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.04
HSR Act . . . . . . . . . . . . . . . . . . . . . . . . . . 3.04
Indemnified Liabilities . . . . . . . . . . . . . . . . . . 7.03(a)
Indemnified Parties . . . . . . . . . . . . . . . . . . . . 7.03(a)
Index Group . . . . . . . . . . . . . . . . . . . . . . . . 10.01(b)(i)
Initial Index Price . . . . . . . . . . . . . . . . . . . . 10.01(b)(ii)
Injunction . . . . . . . . . . . . . . . . . . . . . . . . 8.01(d)
Investors . . . . . . . . . . . . . . . . . . . . . . . . . Page 1
Investors Authorized Preferred . . . . . . . . . . . . . . 3.03
Investors Balance Sheet . . . . . . . . . . . . . . . . . . 3.05(b)
Investors Bank . . . . . . . . . . . . . . . . . . . . . . Page 1
Investors Benefit Plans . . . . . . . . . . . . . . . . . . 3.11(a)
Investors Certificate . . . . . . . . . . . . . . . . . . . 3.01
Investors Common Stock . . . . . . . . . . . . . . . . . . 2.01
Investors Disclosure Letter . . . . . . . . . . . . . . . . 3.02
Investors Environmental Permits . . . . . . . . . . . . . . 3.07(b)
Investors Financial Statements . . . . . . . . . . . . . . 3.05(a)
Investors Interested Property . . . . . . . . . . . . . . . 3.07(b)
Investors Material Adverse Effect . . . . . . . . . . . . . 3.01
Investors Option Plan . . . . . . . . . . . . . . . . . . . 3.03(b)
Investors Permits . . . . . . . . . . . . . . . . . . . . . 3.07(a)
Investors Preferred Stock . . . . . . . . . . . . . . . . . 2.01
Investors Property . . . . . . . . . . . . . . . . . . . . 3.07(b)
Investors Reports . . . . . . . . . . . . . . . . . . . . . 3.06
Investors Restricted Stock . . . . . . . . . . . . . . . . 3.03(b)
Investors Restricted Stock Award Agreements . . . . . . . . 3.03(b)
Investors Rights Agreement . . . . . . . . . . . . . . . . 3.03(d)
Investors Rights Amendment . . . . . . . . . . . . . . . . 3.03(g)
Investors Stock Options . . . . . . . . . . . . . . . . . . 3.03(b)
Investors Stock Plans . . . . . . . . . . . . . . . . . . . 3.03(b)
Investors 1993 Stock Plan . . . . . . . . . . . . . . . . . 3.03(b)
Investors Subsidiary . . . . . . . . . . . . . . . . . . . 3.02
Investors Warrant Agreement . . . . . . . . . . . . . . . . 3.03(b)
Investors Warrants . . . . . . . . . . . . . . . . . . . . 3.03(b)
IRS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.09(a)
Latest Statement Date . . . . . . . . . . . . . . . . . . . 3.05(a)
Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.07(a)
MBCA . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.01
Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . 7.02(a)
Merger . . . . . . . . . . . . . . . . . . . . . . . . . . Page 1
Merger Agreements . . . . . . . . . . . . . . . . . . . . . Page 1
NYSE . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.05
Page 12 of 94
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SECTION
OTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.03
Person . . . . . . . . . . . . . . . . . . . . . . . . . . 9.01(c)
Plan of Merger . . . . . . . . . . . . . . . . . . . . . . Page 1
Proceeding . . . . . . . . . . . . . . . . . . . . . . . . 3.08
Prospectus/Proxy Statement . . . . . . . . . . . . . . . . 7.02(a)
REO . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.05(c)
Representatives . . . . . . . . . . . . . . . . . . . . . . 5.02(f)
S-4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.02(a)
SAIF . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.02
Securities Act . . . . . . . . . . . . . . . . . . . . . . 3.04
SLHC Act . . . . . . . . . . . . . . . . . . . . . . . . . 3.01
Sub . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 1
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . 3.01
Superior Proposal . . . . . . . . . . . . . . . . . . . . . 5.02(f)
Supplemental Warrant Agreement . . . . . . . . . . . . . . 6.07
tax . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.09(a)
Ten-Day Calculation Period . . . . . . . . . . . . . . . . 10.01(b)(v)
Termination Fee . . . . . . . . . . . . . . . . . . . . . . 9.01
Toxic Substances . . . . . . . . . . . . . . . . . . . . . 3.07(b)
Transaction Proposal . . . . . . . . . . . . . . . . . . . 9.01(c)
Trigger Event . . . . . . . . . . . . . . . . . . . . . . . 9.01(b)
Violation . . . . . . . . . . . . . . . . . . . . . . . . . 3.04
Voting Debt . . . . . . . . . . . . . . . . . . . . . . . . 3.03(d)
WBCL . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.02
Page 13 of 94
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AGREEMENT AND PLAN OF REORGANIZATION
AGREEMENT AND PLAN OF REORGANIZATION, dated as of August 21, 1994
("Agreement"), among FIRSTAR CORPORATION, a Wisconsin corporation ("Firstar"),
FIRSTAR CORPORATION OF MINNESOTA, a Minnesota corporation and a wholly-owned
subsidiary of Firstar ("Sub"), and INVESTORS BANK CORP., a Delaware corporation
("Investors").
WHEREAS, the respective Boards of Directors of Firstar, Sub and
Investors have approved the merger of Investors with and into Sub (the "Merger")
in accordance with the terms and conditions hereof and of the Plan of Merger in
the form attached hereto as EXHIBIT A executed concurrently herewith between Sub
and Investors, and joined in by Firstar for certain limited purposes (the "Plan
of Merger");
WHEREAS, Investors owns all of the issued and outstanding capital
stock of Investors Savings Bank, F.S.B. ("Investors Bank") and Sub owns all of
the issued and outstanding capital stock of Firstar Bank of Minnesota, N.A.
("Firstar Bank"); and the parties hereto have agreed to cause Investors Bank and
Firstar Bank to execute an Agreement of Merger substantially to the effect of
EXHIBIT B (the "Bank Merger Agreement"), whereby Investors Bank will be merged
into Firstar Bank (the "Bank Merger") immediately after the Effective Time (as
defined in SECTION 1.02 hereof);
WHEREAS, the respective Boards of Directors of Firstar, Sub and
Investors believe that such proposed Merger, the exchange of shares of Firstar
Common Stock (as defined in SECTION 2.01(a) hereof) for shares of Investors
Common Stock (as defined in SECTION 2.01 hereof) and the payment of cash for
shares of Investors Preferred Stock (as defined in SECTION 2.01 hereof),
pursuant and subject to the terms of this Agreement and the Plan of Merger
(collectively, the "Merger Agreements"), is desirable and in the best interests
of their respective corporations and stockholders; and
WHEREAS, Firstar, Sub and Investors desire to make certain
representations, warranties and agreements in connection with the Merger and
also to prescribe various conditions to the Merger;
NOW, THEREFORE, in consideration of the premises and the
representations, warranties and agreements herein contained, the parties hereto
agree as follows:
ARTICLE I
THE MERGER
1.01. THE MERGER. Subject to the terms and conditions of this
Agreement, Firstar, Sub and Investors agree to effect the Merger of Investors
with and into Sub in accordance with the Minnesota Business Corporation Act (the
"MBCA") and the Delaware General Corporation Law (the "DGCL").
1.02. EFFECTIVE TIME OF THE MERGER. Subject to the provisions of
the Merger Agreements, (a) articles of merger (the "Articles of Merger") shall
be duly prepared and executed by Sub and Investors and thereafter delivered to
the Secretary of State of the State of Minnesota for filing, as provided in the
MBCA, on the Closing Date (as defined in SECTION 1.03) and (b) a certificate of
merger (the "Certificate of Merger") shall be duly prepared and executed by Sub
and Investors and thereafter delivered to the Secretary of State of the State of
Delaware for filing, as
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<PAGE>
provided in the DGCL, on the Closing Date. The Merger shall become effective
upon the filing of the Articles of Merger with the Secretary of State of the
State of Minnesota and the Certificate of Merger with the Secretary of State of
the State of Delaware or at such time on the Closing Date as is provided in the
Articles of Merger and the Certificate of Merger (the "Effective Time").
1.03. CLOSING. The closing of the Merger (the "Closing") will
take place at 10:00 a.m. on a date (the "Closing Date") to be specified by the
parties, which shall be no later than the fifth business day after the latest to
occur of (i) receipt of all necessary regulatory approvals of the Merger, the
Bank Merger and, if desired by Firstar, the Conversion (as defined in SECTION
1.04) from the Board of Governors of the Federal Reserve System (the "Federal
Reserve Board"), the Office of Thrift Supervision of the Department of the
Treasury (the "OTS") and the United States Comptroller of the Currency (the
"Comptroller") and the expiration of any waiting periods imposed by law and (ii)
the date on which the stockholders of Investors approve the Merger. The Closing
will take place at the offices of Firstar, unless another place is agreed to in
writing by the parties hereto. Notwithstanding the foregoing, if the Closing
does not take place on the date referred to in the first sentence of this
Section because any condition to the obligations of Firstar and Sub, on the one
hand, or Investors, on the other hand, under this Agreement is not met on that
date, the other party may postpone the Closing from time to time to any
designated subsequent business day not more than ten business days after the
original or postponed date on which the Closing was to occur by delivering
notice of such postponement on the date the Closing was to occur.
1.04. FORM OF TRANSACTION. Firstar at its reasonable discretion
may restructure the Merger and/or the Bank Merger provided that, as a result of
such change, there is no (a) effect upon the consideration to be delivered
pursuant to ARTICLE II or change in the tax treatment to the recipients of
Firstar Common Stock to be delivered in the Merger, the holders of options or
warrants to purchase shares of Investors or any other holder of a security of
Investors, or change in the accounting treatment of the transactions
contemplated hereby as a pooling-of-interests, (b) increase in the obligations
of Investors or any Investors Subsidiary pursuant to this Agreement, except for
the obligations set forth in SECTION 7.01 and SECTION 7.06 of this Agreement, or
(c) decrease in the obligations of Firstar to Investors, any Investors
Subsidiary or any officer, director, employee, representative or agent of any of
them set forth in this Agreement. Such restructuring may include (i) changing
the Firstar Subsidiaries (as defined in SECTION 4.02) that are parties to the
Merger and/or the Bank Merger and/or the party surviving either of such
transactions and/or (ii) converting Investors Bank to a national banking
association (the "Conversion") immediately after the Effective Time and prior to
merging the resulting bank into Firstar Bank. At the request of Firstar, the
parties each will take or perform any necessary or advisable steps to
restructure the transaction. In the event the merger between Firstar Bank and
Investors Bank is restructured as provided in this SECTION 1.04, references in
this Agreement to the Bank Merger shall be deemed to include references to the
restructured transaction and references to the Bank Merger Agreement shall be
deemed to include references to the documents effecting the restructured
transaction.
1.05. BANK MERGER. Firstar and Sub agree to cause Firstar Bank
and Investors agrees to cause Investors Bank to execute the Bank Merger
Agreement within ten days from the date hereof, and Sub, as the sole shareholder
of Firstar Bank, and Investors, as the sole shareholder of Investors Bank, agree
to consent to the Bank Merger.
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ARTICLE II
EFFECT OF THE MERGER ON INVESTORS CAPITAL STOCK
2.01. EFFECT ON CAPITAL STOCK. As of the Effective Time, by
virtue of the Merger and without any action on the part of the holder of any
shares of Investors' common stock, $.01 par value ("Investors Common Stock"), or
Investors' Cumulative Perpetual Preferred Stock, Series 1991, $.01 par value
("Investors Preferred Stock"), but subject to the provisions of Section 262 of
the DGCL with respect to the rights of dissenting holders of Investors Preferred
Stock:
(a) CONVERSION OF INVESTORS COMMON STOCK. Subject to adjustment
pursuant to SECTION 2.01(e) and SECTION 2.05, each then issued and outstanding
share of Investors Common Stock shall be converted into the right to receive
0.8676 (the "Exchange Ratio") fully paid and nonassessable shares of common
stock, $1.25 par value, of Firstar ("Firstar Common Stock"), including with each
such share one-half of one Firstar Preferred Share Purchase Right ("Firstar
Right") issued pursuant to the Rights Agreement dated as of January 20, 1989,
between Firstar and Firstar Trust Company, as Rights Agent (the "Firstar Rights
Agreement"). Prior to the Distribution Date (as defined in the Firstar Rights
Agreement), all references in this Agreement to the Firstar Common Stock to be
received pursuant to the Merger shall be deemed to include the Firstar Rights.
(b) CONVERSION OF INVESTORS PREFERRED STOCK. Each then issued and
outstanding share of Investors Preferred Stock shall be converted into the right
to receive $27.50 plus accumulated and unpaid dividends on such shares of
Investors Preferred Stock to the Effective Time, payable in cash.
(c) STOCK HELD BY INVESTORS. Each then issued and outstanding share
of Investors Common Stock or Investors Preferred Stock owned by Investors or any
direct or indirect subsidiary of Investors (other than shares held in a
fiduciary capacity) and each share of Investors Common Stock or Investors
Preferred Stock issued and held in Investors' treasury will be cancelled and
retired.
(d) CANCELLATION OF SHARES. All shares of Investors Common Stock and
Investors Preferred Stock issued and outstanding immediately prior to the
Effective Time shall no longer be outstanding and shall automatically be
cancelled and retired and shall cease to exist, and each holder of a certificate
representing any such shares shall cease to have any rights with respect
thereto, except the right to receive the shares of Firstar Common Stock or cash,
as the case may be, to be issued in consideration therefor upon the surrender of
such certificate in accordance with the Plan of Merger, without interest.
(e) ADJUSTMENT. If prior to the Effective Time Firstar shall declare
a stock dividend or distribution upon or subdivide, split up, reclassify or
combine its shares of Firstar Common Stock or declare a dividend or make a
distribution on Firstar Common Stock of any security convertible into Firstar
Common Stock or exercisable to purchase Firstar Common Stock (including, without
limitation, distribution of any Firstar Rights after a Distribution Date),
appropriate adjustment or adjustments will be made in the Exchange Ratio.
2.02. EFFECT ON OPTIONS TO PURCHASE INVESTORS COMMON STOCK. Each
Investors Stock Option (as defined in SECTION 3.03(b)) which is outstanding
immediately prior to the Effective Time shall, by virtue of the Merger and
without any action on the part of the holder thereof, become and represent an
option (a "Firstar Stock Option") to purchase, for the aggregate price payable
by such option holder on exercise of the Investors Stock Option, the number of
shares of Firstar Common Stock which he or she would have received pursuant to
the Merger if such option had been exercised in full immediately prior to the
Effective Time. Firstar shall pay cash to holders of Investors Stock Options in
lieu of issuing fractional shares of Firstar Common
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Stock upon exercise of a Firstar Stock Option. After the Effective Time, each
Firstar Stock Option shall be exercisable on the same terms and conditions as
were applicable under the Investors Stock Option as of the Effective Time.
2.03. EFFECT ON WARRANTS TO PURCHASE INVESTORS COMMON STOCK. Each
Investors Warrant (as defined in SECTION 3.03(b)) which is outstanding
immediately prior to the Effective Time shall, by virtue of the Merger and
pursuant to the Supplemental Warrant Agreement (as defined in SECTION 6.07) and
without any action on the part of the holder thereof, become and represent a
warrant (a "Firstar Warrant") to acquire, on the same terms and conditions as
were applicable under such Investors Warrant, the same number of shares of
Firstar Common Stock as the holder of such Investors Warrant would have been
entitled to receive pursuant to the Merger had such holder exercised such
warrant in full immediately prior to the Effective Time, at a price per share
equal to (x) the aggregate purchase price under the Investors Warrant for the
shares of Investors Common Stock otherwise purchasable pursuant to such
Investors Warrant immediately prior to the Effective Time divided by (y) the
number of full shares of Firstar Common Stock deemed purchasable pursuant to
such Warrant. Firstar shall pay cash to holders of Investors Warrants in lieu
of issuing fractional shares of Firstar Common Stock upon exercise of a Firstar
Warrant. After the Effective Time, each Firstar Warrant shall be exercisable on
the same terms and conditions as were applicable under the Investors Warrant as
of the Effective Time.
2.04. EFFECT ON INVESTORS RESTRICTED STOCK. Each share of
Investors Restricted Stock (as defined in SECTION 3.03(b)) which is not fully
vested at the Effective Time shall, by virtue of the Merger and without any
action on the part of the holder thereof, become and represent the right to
receive a number of shares of Firstar Common Stock (not to exceed the Exchange
Ratio) with a value as of the Effective Time equal to the "fair value" of such
Investors Restricted Stock as determined by an independent third party expert
selected by Inventors taking into account the terms and conditions (other than
any rights to a tax offset bonus), including vesting schedule, as were
applicable under the Investors Restricted Stock Award Agreement (as defined in
SECTION 3.03(b)) as of the Effective Time, and Firstar shall, as of the
Effective Time, issue the appropriate number of shares of Firstar Common Stock
(decreased to the nearest full share) to each holder of Investors Restricted
Stock. Notwithstanding the foregoing, if treatment in accordance with this
sentence does not prevent the delivery of the opinions contemplated by SECTION
8.02(d), then each share of Investors Restricted Stock under agreements dated
January 4, 1994 which is not fully vested at the Effective Time shall not be
converted as provided in the preceding sentence, but instead shall, by virtue of
the Merger and without any action on the holder thereof, become and represent
the number of shares of Firstar Common Stock ("Firstar Restricted Stock")
determined by multiplying such share of Investors Restricted Stock by the
Exchange Ratio, subject to the same terms and conditions, including vesting
schedule, as were applicable under the Investors Restricted Award Agreement (as
defined in SECTION 3.03(b)) as of the Effective Time.
2.05. ADJUSTMENT TO EXCHANGE RATIO. If the Environmental Reports
delivered pursuant to SECTION 7.07 indicate that any cleanup, removal, remedial
action or other response is required and if the estimated costs of such
remediation as set forth in the Environmental Reports and/or actual costs of
such remediation are greater than $500,000, then, in addition to any other
rights that Firstar may have pursuant to this Agreement, Firstar shall have the
right to adjust the Exchange Ratio otherwise provided in SECTION 2.01(a) with
the effect that the aggregate market value of Firstar Common Stock (based upon
an assumed price per share of Firstar Common Stock of $32.125 otherwise to be
delivered to the holders of Investors Common Stock as of the Effective Time
(including any fractional shares) shall be reduced dollar-for-dollar by the
total costs of remediation.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF INVESTORS
Investors represents and warrants to Firstar and Sub as follows:
3.01. ORGANIZATION, STANDING AND POWER. Investors is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware and has all requisite corporate power and authority to
own, lease and operate its properties and to carry on its business as now being
conducted, except where the failure to have such power or authority would not
have a material adverse effect on the business, operations, prospects or
financial condition of Investors and its Subsidiaries (as hereinafter defined),
taken as a whole (an "Investors Material Adverse Effect"). Investors is
qualified to do business and is in good standing in each other state or foreign
jurisdiction where its ownership or leasing of property or the conduct of its
business requires it to be so qualified and where the failure to be so qualified
would have an Investors Material Adverse Effect. Investors is registered as a
savings and loan holding company with the OTS under the Savings and Loan Holding
Company Act, as amended (the "SLHC Act"). Investors has delivered to Firstar
true, accurate and complete copies of the currently effective certificate of
incorporation (the "Investors Certificate") and by-laws of Investors, including
all amendments thereto. As used in this Agreement, the word "Subsidiary" means
any corporation or other organization, whether incorporated or unincorporated
(i) of which such party or any other Subsidiary of such party is a general
partner (excluding partnerships, the general partnership interest of which held
by such party or any Subsidiary of such party does not have a majority of the
voting interest in such partnership) or (ii) at least a majority of the
securities or other interests having by their terms ordinary voting power to
elect a majority of the Board of Directors or others performing similar
functions with respect to such corporation or other organization is directly or
indirectly owned or controlled by such party or by any one or more of its
Subsidiaries, or by such party and one or more of its Subsidiaries.
3.02. INVESTORS SUBSIDIARIES. Except as set forth in the
Investors Disclosure Letter (which is a letter delivered by Investors to Firstar
and Sub on the date hereof, the receipt thereof having been acknowledged by
Firstar and Sub executing a copy thereof, that identifies, as to each matter
disclosed therein, the section of this Agreement to which the matter relates),
Investors beneficially owns, directly or indirectly, all of the shares of the
outstanding capital stock of each of the Subsidiaries listed on such letter
(herein called collectively the "Investors Subsidiaries" or individually an
"Investors Subsidiary"), which constitute Investors' sole Subsidiaries. No
equity securities of any of the Investors Subsidiaries are or may become
required to be issued by reason of any option, warrants, calls, rights or
agreements of any character whatsoever; there are outstanding no securities or
rights convertible into or exchangeable for shares of any capital stock of any
Investors Subsidiary; and there are no other contracts, commitments,
understandings or arrangements by which any Investors Subsidiary is bound to
issue additional shares of its capital stock or options, warrants, calls, rights
or agreements to purchase or acquire any additional shares of its capital stock.
Except as provided for under any applicable savings institution statute, all of
the shares of capital stock of each of the Investors Subsidiaries owned by
Investors are fully paid and nonassessable and are owned by it free and clear of
any claim, lien, encumbrance or agreement with respect thereto. Each Investors
Subsidiary is a savings institution or a corporation, in each case duly
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation, and has the corporate power and authority to own
or lease its properties and assets and to carry on its business as it is now
being conducted, except in the case of Investors Subsidiaries other than
Investors Bank where the failure to have such power or authority would not have
an Investors Material Adverse Effect. Investors Bank is a savings institution
organized under the laws of the United States, and a member in good standing of
the
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Federal Home Loan Bank of Des Moines. The deposits of Investors Bank are
insured by the Savings Association Insurance Fund ("SAIF") of the Federal
Deposit Insurance Corporation ("FDIC") to the extent provided by law. Investors
Bank is a qualified seller and servicer for the Federal National Mortgage
Association and the Federal Home Loan Mortgage Corporation. Investors has
delivered to Firstar true, accurate and complete copies of the currently
effective charter, certificate or articles of incorporation and by-laws of the
Investors Subsidiaries, including all amendments thereto. Except as set forth
in the Investors Disclosure Letter and except for securities held in its
capacity as fiduciary, Investors does not own beneficially, directly or
indirectly, more than 5% of any class of equity securities or similar interests
of any corporation, bank, business trust, association or similar organization.
There are no obligations, contingent or otherwise, of Investors or any Investors
Subsidiary to repurchase, redeem or otherwise acquire any shares of capital
stock of any Investors Subsidiary or to provide funds (in the form of a loan,
capital contribution or otherwise) to any Investors Subsidiary or to make an
investment in any Investors Subsidiary or any other entity, other than pursuant
to commercial loan arrangements and similar obligations arising in the ordinary
course of the business of the Investors Subsidiaries.
3.03. CAPITAL STRUCTURE. (a) As of the date hereof, the
authorized capital stock of Investors consists of 11,000,000 shares divided into
10,000,000 shares of Investors Common Stock and 1,000,000 shares of "Preferred
Stock" (the "Investors Authorized Preferred").
(b) As of the date hereof, (i) 3,500,604 shares of Investors Common
Stock are issued and outstanding, including 64,778 shares of restricted stock
(the "Investors Restricted Stock") issued pursuant to Restricted Stock Award
Agreements dated December 31, 1992 or January 4, 1994 between Investors and
certain of its employees (the "Investors Restricted Stock Award Agreements"),
(ii) 242,041 shares of Investors Common Stock are reserved for issuance pursuant
to Investors' Stock Option Plan (the "Investors Option Plan"), and options to
purchase 242,041 shares of Investors Common Stock are outstanding under the
Investors Option Plan, (iii) 322,000 shares of Investors Common Stock are
reserved for issuance under the Investors 1993 Incentive Stock Plan (the
"Investors 1993 Stock Plan" and, together with the Investors Option Plan, the
"Investors Stock Plans"), and options to purchase 45,330 shares of Investors
Common Stock are outstanding under the Investors 1993 Stock Plan (such options,
together with options outstanding under the Investors Stock Option Plan,
hereafter referred to as "Investors Stock Options"), (iv) 202,160 shares of
Investors Common Stock are reserved for issuance pursuant to 303,240 outstanding
warrants (the "Investors Warrants"), each of which represents the right to
purchase 2/3 share of Investors Common Stock, issued under a Warrant Agreement
dated October 15, 1991 (the "Investors Warrant Agreement"), and (v) no shares of
Investors Common Stock are held in treasury. As of the date hereof, pursuant to
the Investors Warrant Agreement, the price at which the Investors Warrants are
exercisable is $11.0625 per share of Investors Common Stock, and the Investors
Warrants expire on November 13, 1996. There is no adjustment in the Purchase
Price (as defined in the Investors Warrant Agreement) that was not required to
be made by virtue of Section 10(E) of the Investors Warrant Agreement, but which
is required to be carried forward and taken into account in any subsequent
adjustment. The Merger will have the effect on Investors Stock Options and
Investors Warrants described in SECTION 2.02 and SECTION 2.03, respectively.
The Investors Disclosure Letter sets forth the number of holders of record of
Investors Warrants as of a recent date. The Investors Disclosure Letter
identifies any rights that any holder of Investors Stock Options and/or
Investors Restricted Stock has to a tax offset bonus under Section 8(b) of the
Investors 1993 Stock Plan or otherwise.
(c) As of the date hereof, (i) 303,640 shares of Investors Preferred
Stock are issued and outstanding, (ii) a series of Investors Authorized
Preferred, consisting of 500,000 shares designated as "Series A Junior
Participating Preferred Stock," is authorized and reserved for issuance under
the Investors Rights Agreement, as defined in SECTION 3.03(d), no shares of
which
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have been issued, and (iii) no other shares of Investors Authorized Preferred
are authorized or issued.
(d) As of the date hereof, neither Investors nor any Subsidiary of
Investors has issued and outstanding bonds, debentures, notes or other
indebtedness having the right to vote (or convertible into securities having the
right to vote) on any matters on which stockholders may vote ("Voting Debt").
All outstanding shares of Investors capital stock are validly issued, fully paid
and nonassessable and not subject to or issued in violation of any preemptive
rights. As of the date of this Agreement, except pursuant to this Agreement,
the Investors Stock Plans, the Investors Preferred Stock, the Investors
Warrants, and the Rights Agreement dated as of May 7, 1991 between Investors and
Norwest Bank Minnesota, N.A., as Rights Agent (the "Investors Rights
Agreement"), there are no options, warrants, calls, rights, or agreements of any
character whatsoever to which Investors or any Subsidiary of Investors is a
party or by which it is bound obligating Investors or any such Subsidiary to
issue, deliver or sell, or cause to be issued, delivered or sold, additional
shares of capital stock or any Voting Debt of Investors or of any Subsidiary of
Investors or obligating Investors or any Subsidiary of Investors to grant,
extend or enter into any such option, warrant, call, right or agreement.
Immediately after the Effective Time, there will be no option, warrant, call,
right or agreement obligating Investors or any Subsidiary of Investors to issue,
deliver or sell, or cause to be issued, delivered or sold, any shares of capital
stock or any Voting Debt of Investors or any Subsidiary of Investors, or
obligating Investors or any Subsidiary of Investors to grant, extend or enter
into any such option, warrant, call, right or agreement.
(e) Investors has not purchased, redeemed, canceled or otherwise
acquired any of its capital stock or Voting Debt during the two years preceding
the date hereof. Except as provided in this Agreement, there are no
obligations, contingent or otherwise, of Investors or any Investors Subsidiary
to repurchase, redeem or otherwise acquire any shares of Investors Common Stock,
Investors Preferred Stock or Voting Debt.
(f) As a result of the execution and delivery by Investors of the
amendment, dated of even date herewith, to the Investors Rights Agreement (the
"Investors Rights Amendment"), (i) Firstar will not become an "Acquiring Person"
(as defined in the Investors Rights Amendment) by virtue of the announcement or
consummation of the Merger and (ii) the Investors Rights Agreement will expire
at the Effective Time.
3.04. AUTHORITY. Investors has all requisite corporate power and
authority to enter into this Agreement, the Plan of Merger and the Investors
Rights Amendment and to consummate the transactions contemplated hereby and
thereby, subject only to approval of this Agreement and the Plan of Merger by
the stockholders of Investors. Investors Bank has all requisite corporate power
and authority to enter into the Bank Merger Agreement and to consummate the
transactions contemplated thereby. The execution and delivery of this
Agreement, the Plan of Merger and the Investors Rights Amendment and the
consummation of the transactions contemplated hereby and thereby have been duly
authorized by all necessary corporate action on the part of Investors (including
unanimous approval by the Board of Directors of Investors), subject to such
approval of this Agreement and the Plan of Merger by the stockholders of
Investors. Such approval by the Board of Directors of Investors is all action
necessary to insure that the restrictions set forth in Section 203 of the DGCL
do not or will not apply to the transactions contemplated herein. The execution
and delivery of the Bank Merger Agreement and the consummation of the
transactions contemplated thereby have been duly authorized by all necessary
corporate action on the part of Investors Bank. This Agreement, the Plan of
Merger and the Investors Rights Amendment have been duly executed and delivered
by Investors, and each constitutes a valid and binding obligation
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of Investors enforceable in accordance with its terms. Upon execution and
delivery thereof by Investors Bank and Firstar Bank, the Bank Merger Agreement
will have been duly executed and delivered by Investors Bank and will constitute
a valid and binding obligation of Investors Bank enforceable in accordance with
its terms. The execution and delivery of this Agreement, the Plan of Merger and
the Investors Rights Amendment do not, and the execution and delivery of the
Bank Merger Agreement and the consummation of the transactions contemplated
hereby and thereby will not, conflict with, or result in any violation of, or
default (with or without notice or lapse of time, or both) under, or give rise
to a right of termination, cancellation or acceleration of any material
obligation or the loss of a material benefit under, or the creation of a
material lien, pledge, security interest or other encumbrance on assets (any
such conflict, violation, default, right of termination, cancellation or
acceleration loss or creation, a "Violation"), pursuant to any provision of (a)
the Investors Certificate, the by-laws of Investors or the charter, certificate
or articles of incorporation or by-laws of any Investors Subsidiary or (b)
except (i) as set forth in the Investors Disclosure Letter or (ii) as
contemplated by the next sentence hereof, any loan or credit agreement, note,
mortgage, indenture, lease, Investors Benefit Plan (as defined in SECTION 3.11)
or other agreement, obligation, instrument, permit, franchise, license,
judgment, order, decree, statute, law, ordinance, rule or regulation applicable
to Investors or any Subsidiary of Investors or their respective properties or
assets which Violation pursuant to this CLAUSE (b) would have an Investors
Material Adverse Effect. Other than in connection or in compliance with the
provisions of the DGCL or the MBCA, the Securities Act of 1933, as amended, and
the rules and regulations thereunder (the "Securities Act"), the Securities
Exchange Act of 1934, as amended, and the rules and regulations thereunder (the
"Exchange Act"), the securities or "blue sky" laws of the various states, and
consents, authorizations, approvals, notices or exemptions required under the
Bank Holding Company Act of 1956, as amended (the "BHC Act"), the SLHC Act, the
Federal Deposit Insurance Act, as amended (the "FDI Act"), the Home Owners Loan
Act, as amended (the "HOLA"), and the Hart-Scott-Rodino Antitrust Improvements
Act of 1976, as amended (the "HSR Act"), no consent, approval, order or
authorization of, or registration, declaration or filing with, any court,
administrative agency or commission or other governmental authority or
instrumentality, domestic or foreign (a "Governmental Entity"), is required on
the part of Investors or any of the Investors Subsidiaries in connection with
the execution and delivery of this Agreement, the Plan of Merger and the Bank
Merger Agreement by Investors or Investors Bank, as the case may be, or the
consummation by Investors or Investors Bank, as the case may be, of the
transactions contemplated hereby and thereby, the failure to obtain which would
have an Investors Material Adverse Effect.
3.05. INVESTORS FINANCIAL STATEMENTS. (a) The consolidated
balance sheets of Investors as of December 31, 1993 and 1992 and the related
consolidated statements of income, consolidated statements of cash flows and
consolidated statements of changes in stockholders' equity for the three years
in the period ended December 31, 1993 (the "Latest Statement Date"), accompanied
by the unqualified opinion of KPMG Peat Marwick, copies of which have been
furnished by Investors to Firstar; the unaudited consolidated balance sheet of
Investors as of June 30, 1994 and the related consolidated statement of income,
consolidated statement of changes in stockholders' equity and consolidated
statements of cash flows for the six months then ended, in the form prepared for
Investors' internal use, copies of which have been furnished by Investors to
Firstar; and like financial information included in Forms 10-Q filed with the
SEC subsequent to the Latest Statement Date (collectively, the "Investors
Financial Statements"), have been prepared in accordance with generally accepted
accounting principles as utilized in the Investors Financial Statements applied
on a consistent basis (except as may be indicated therein or in the notes
thereto), and present fairly the consolidated financial condition of Investors
at the dates, and the consolidated results of operations, changes in
stockholders' equity and cash flows for the periods, stated therein. In the
case of interim fiscal periods, all adjustments, consisting only of normal
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recurring items, which management of Investors believes necessary for a fair
presentation of such financial information, have been made, subject to year-end
audit adjustments, none of which could reasonably be expected to have a material
adverse effect on the consolidated financial position or results of operations
of Investors.
(b) Except as and to the extent set forth on the consolidated balance
sheet of Investors and its Subsidiaries as of December 31, 1993, or in the notes
thereto (the "Investors Balance Sheet"), neither Investors nor any Investors
Subsidiary has any liabilities or obligations of any nature (whether accrued,
absolute, contingent or otherwise) that would be required to be reflected on a
balance sheet, or in the notes thereto, prepared in accordance with generally
accepted accounting principles, except (i) for liabilities or obligations
incurred in the ordinary course of business since the Latest Statement Date that
would not, individually or in the aggregate, have an Investors Material Adverse
Effect or (ii) as otherwise reflected in the Investors Reports filed prior to
the date of this Agreement. Except as disclosed in the Investors Disclosure
Letter, neither Investors nor any Investors Subsidiary has any liabilities or
obligations of any nature (whether accrued, absolute, contingent or otherwise)
that are not required to be reflected on a balance sheet, or in the notes
thereto, except for liabilities or obligations that do not, individually or in
the aggregate, have an Investors Material Adverse Effect.
(c) Without limitation to the foregoing, Investors' consolidated
reserve for losses on loans included in the Investors Financial Statements as of
June 30, 1994 was $3,198,338, representing .36% of total consolidated loans held
in portfolio, and Investors' consolidated reserve for losses on real estate was
$120,043, representing 2.27% of total consolidated real estate owned as a result
of foreclosure ("REO") reflected on such statements. The aggregate amount of
such reserve for losses on loans and reserve for losses on REO was adequate to
absorb reasonably expectable losses in the loan and REO portfolios of Investors
and Investors Bank. To the knowledge of Investors, there are no facts which
would cause it to increase the level of such reserve for losses on loans and
REO. The loan portfolio and REO portfolio of Investors Bank as of June 30, 1994
in excess of such reserves is, to the best knowledge and belief of the executive
officers of Investors and Investors Bank after due inquiry as to potential
losses, and based on past loan loss experience, fully realizable on REO and
fully collectible in accordance with the terms of the documentation relating to
the loans in such portfolio. The documentation relating to loans made by
Investors Bank and relating to all security interests, mortgages and other liens
with respect to all collateral for such loans, taken as a whole, is adequate for
the enforcement of the material terms of such loans and of the related security
interests, mortgages and other liens. The terms of such loans and of the
related security interests, mortgages and other liens comply in all material
respects with all applicable laws, rules and regulations (including without
limitation laws, rules and regulations relating to the extension of credit).
Except as set forth in the Investors Disclosure Letter, (A) as of June 30, 1994,
there are no loans, leases, other extensions of credit or commitments to extend
credit of Investors Bank that have been or, to Investors' knowledge, should have
been classified by Investors Bank as nonaccrual, as restructured, as 90 days
past due, as still accruing and doubtful of collection or any comparable
classification and (B) no material information with respect to the loan
portfolios of Investors Bank has been withheld from Firstar. Not later than
three days after the date hereof, Investors will have provided Firstar with
access to true, correct and complete in all material respects written
information concerning the loan portfolios of Investors Bank.
3.06. REPORTS. Since January 1, 1991, Investors and the Investors
Subsidiaries have filed all reports, registrations and statements, together with
any amendments required to be made with respect thereto, that were and are
required to be filed with (i) the SEC, including but not limited to Forms 10-K,
Forms 10-Q, Forms 8-K and proxy statements, (ii) the OTS, (iii) the FDIC, and
(iv) any other applicable federal or state securities, or savings institution
authorities (all
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such reports and statements are collectively referred to herein as the
"Investors Reports"). As of their respective dates, the Investors Reports filed
prior to the date hereof complied in all material respects with all of the
statutes, rules and regulations enforced or promulgated by the regulatory
authority with which they were filed (including, to the extent applicable, Rule
10b-5 promulgated under the Exchange Act) and did not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein.
3.07. AUTHORIZATIONS; COMPLIANCE WITH APPLICABLE LAWS. (a)
Investors and its Subsidiaries hold all authorizations, permits, licenses,
variances, exemptions, orders and approvals of all Governmental Entities which
are material to the operations of the businesses of Investors and the Investors
Subsidiaries (the "Investors Permits"), including appropriate authorizations
from the OTS. Investors and the Investors Subsidiaries are in compliance with
the terms of the Investors Permits, except where the failure so to comply could
not reasonably be expected to have an Investors Material Adverse Effect. Except
as disclosed in the Investors Reports filed prior to the date of this Agreement
or in the Investors Disclosure Letter, the businesses of Investors and the
Investors Subsidiaries are not being, and have not been, conducted in violation
of any domestic (federal, state or local) or foreign law, statute, ordinance or
regulation of any Governmental Entity (collectively "Laws"), except for possible
violations which individually or in the aggregate do not and, insofar as
reasonably can be foreseen, in the future will not, have an Investors Material
Adverse Effect. Except (i) as set forth in the Investors Disclosure Letter,
(ii) for regular, periodic reviews and examinations by Governmental Entities,
and (iii) for investigations or reviews by Governmental Entities other than
savings institution regulatory authorities where the outcome thereof will not
have an Investors Material Adverse Effect, as of the date hereof, no
investigation or review by any Governmental Entity with respect to Investors,
any of the Investors Subsidiaries or any Investors' Property (as defined below)
is pending or, to the knowledge of Investors, threatened, nor has any
Governmental Entity indicated an intention to conduct the same.
(b) The Investors Disclosure Letter identifies each parcel of real
estate currently owned, leased or otherwise possessed or controlled by Investors
or any Investors Subsidiary on the date of this Agreement, including, without
limitation, REO and properties managed or controlled by Investors Bank in
connection with its lending or fiduciary operations (collectively, the
"Investors Property"), except that the Investors Disclosure Letter need not
identify residential real estate owned as a result of foreclosures having an
appraised value of less than $500,000. Except as set forth in the Investors
Disclosure Letter, neither Investors nor any Investors Subsidiary nor any of the
Investors Property owned or leased by them for use in the operation of their
respective businesses is in violation of any applicable zoning ordinance or
other law, regulation or requirement relating to the operation of any properties
used, including, without limitation, applicable environmental protection laws,
rules and regulations (collectively, "Environmental Laws"), other than
violations that, in the aggregate with any other conditions described in this
SECTION 3.07(b), would not result in costs that would be material to Investors
and the Investors Subsidiaries taken as a whole; and neither Investors nor any
Investors Subsidiary has received any notice of any such violation, or the
existence of any condemnation proceeding with respect to any Investors Property.
Except as set forth in the Investors Disclosure Letter, no Toxic Substances (as
defined below) have been deposited or disposed of in, on or under any Investors
Property during the period in which Investors or any of the Investors
Subsidiaries has owned, occupied, managed, controlled or operated such
properties, except to the extent the same, in the aggregate with any other
conditions described in this SECTION 3.07(b), would not result in costs that
would be material to Investors and the Investors Subsidiaries taken as a whole.
Except as set forth in the Investors Disclosure Letter, Investors has no
knowledge (A) that prior owners, occupants or operators of all or any part of
the Investors Property ever used such properties as a dump or
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gasoline service station, (B) that prior owners, occupants or operators of all
or part of the Investors Property ever deposited or disposed of or allowed to be
deposited or disposed of in, on or under such properties any Toxic Substances or
(C) that any past, present or known future event, condition, circumstances,
plans, errors or omissions have existed or occurred, are existing or occurring
or are reasonably expected to exist or occur on or with respect to any Investors
Property, or any other property as to which Investors or any Investors
Subsidiary has held or currently holds ownership or indicia of ownership
("Investors Interested Property"), except as to the matters in CLAUSES (B) AND
(C) to the extent the same, in the aggregate with any other conditions described
in this SECTION 3.07(b), would not result in costs that would be material to
Investors and the Investors Subsidiaries taken as a whole. To the best
knowledge of Investors, there are no conditions or circumstances in connection
with the Investors Property that could reasonably be anticipated to (i) cause
any Investors Property to be subject to any restrictions on ownership,
occupancy, use or transferability under any applicable Environmental Laws or
(ii) materially reduce the value of any Investors Property. To the best
knowledge of Investors and its Subsidiaries, neither Investors nor any Investors
Subsidiary has been identified as a potentially responsible party by any
Governmental Entity in a matter arising under any Environmental Laws. For
purposes of this Agreement, (1) "Toxic Substances" shall mean petroleum or
petroleum-based substance or waste, solid waste, PCBs, pesticides, herbicides,
lead, radioactive materials, urea formaldehyde foam insulation, or substances
defined as "hazardous substances" or "toxic substances" in any Environmental
Laws; (2) materials will be considered to be deposited or disposed of in, on or
under any real property if such materials have been stored, treated, recycled,
used or accidentally or intentionally spilled, released, dumped, emitted or
otherwise placed, deposited or disposed of, or used in any construction, in, on
or under such property; and (3) costs of violations or conditions shall take
into account, without limitation, liabilities, damages, penalties, injunctive
relief or removal, remediation or other costs under any applicable Environmental
Law.
3.08. LITIGATION AND CLAIMS. Except as disclosed in the Investors
Reports filed prior to the date of this Agreement or in the Investors Disclosure
Letter: (a) none of Investors, any of the Investors Subsidiaries or any
Investors' Property is subject to any continuing order of, or written agreement
or memorandum of understanding with any federal or state savings institution or
insurance authority or other Governmental Entity, or any judgment, order, writ,
injunction, decree or award of any Governmental Entity or arbitrator, including,
without limitation, cease-and-desist or other orders of any savings institution
regulatory authority, (b) there is no action, suit, litigation, proceeding or
arbitration ("Proceeding") against or affecting Investors or any Subsidiary of
Investors or, to the knowledge of Investors, any directors, officers, employees
or agents of Investors or any Subsidiary of Investors (in their respective
capacities as directors, officers, employees or agents) pending or, to the
knowledge of Investors, threatened, which would, if adversely determined, have
an Investors Material Adverse Effect or, to the knowledge of Investors, any
basis therefor, and (c) there are no uncured material violations, or violations
with respect to which material refunds or restitutions may be required, cited in
any compliance report to Investors or any Investors Subsidiary as a result of
the examination by any savings institution regulatory authority.
3.09. TAXES. Investors and each Investors Subsidiary has filed
all tax returns required to be filed by them and has paid (or Investors has paid
on its behalf), or has set up an adequate reserve for the payment of, all taxes
required to be paid as shown on such returns, except to the extent such
nonpayment did not result in a liability material to Investors and its
Subsidiaries taken as a whole, and the most recent Investors financial
statements contained in the Investors Reports reflect an adequate reserve for
all taxes payable by Investors and its Subsidiaries accrued through the date of
such financial statements. The Investors Disclosure Letter sets forth, as of
the date hereof, the following information with respect to Investors and each
Subsidiary of Investors:
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(a) the most recent tax year for which the United States Internal Revenue
Service ("IRS") has completed its examination of such corporation, (b) whether
there is an examination pending by the IRS with respect to such corporation and,
if so, the tax years involved, (c) whether such corporation has executed or
filed with the IRS any agreement which is still in effect extending the period
for assessment and collection of any federal tax and, if so, the tax years
covered by such agreement and the expiration date of such extension, and (d)
whether there are any existing material disputes as to foreign, state, or local
taxes. There are no liens for taxes upon the assets of Investors or of any
Investors Subsidiary, except for statutory liens for taxes not yet delinquent or
the validity of which is being contested in good faith by appropriate
proceedings and, in either case, only if adequate reserves therefor have been
established on Investors' books in accordance with generally accepted accounting
principles. Except as disclosed in the Investors Disclosure Letter, neither
Investors nor any Investors Subsidiary is a party to any action or proceeding by
any governmental authority for assessment and collection of taxes, and no claim
for assessment and collection of taxes has been asserted against any of them.
For the purpose of this Agreement, the term "tax" (including, with correlative
meaning, the terms "taxes" and "taxable") shall include all federal, state,
local and foreign income, profits, franchise, gross receipts, payroll, sales,
employment, use, personal and real property, withholding, excise and other
taxes, duties or assessments of any nature whatsoever, together with all
interest, penalties and additions imposed with respect to such amounts.
Investors and each Investors Subsidiary has withheld from its employees (and
timely paid to the appropriate governmental agency) amounts which are proper and
accurate in all material respects for all periods through the date hereof in
material compliance with all tax withholding provisions of applicable federal,
state, foreign and local laws (including without limitation income, social
security and employment tax withholding for all types of compensation). Except
as disclosed in the Investors Disclosure Letter, and except that prior to March
1984 Investors was part of the affiliated group for which Interregional
Financial Group, Inc. was the parent, neither Investors nor any Investors
Subsidiary has ever been a member of an affiliated group of corporations (within
the meaning of Section 1504(a) of the Internal Revenue Code of 1986, as amended
(the "Code")) filing consolidated federal income tax returns, other than the
affiliated group of which Investors is the common parent. To the best knowledge
of Investors, neither Investors nor any Investors Subsidiary has made any
payments, or been a party to an agreement that under any circumstances could
obligate it to make payments based upon the consummation of the transactions
contemplated hereby constituting a change of the nature described in Section
280G(b)(2)(A)(i) of the Code, that are or will not be deductible because of
Section 280G of the Code.
3.10. CERTAIN AGREEMENTS. Except as discussed in the Investors
Reports filed prior to the date of this Agreement or as disclosed in the
Investors Disclosure Letter, and except for this Agreement, as of the date
hereof, neither Investors nor any Investors Subsidiary is a party to any oral or
written (i) consulting agreement not terminable on 60 days' or less notice or
employment agreement or other agreement providing any term of employment,
compensation guarantee, or severance benefit, (ii) union, guild or collective
bargaining agreement, (iii) agreement or plan, including any stock option plan,
stock appreciation right plan, restricted stock plan or stock purchase plan, any
of the benefits of which will be increased, or the vesting of the benefits of
which will be accelerated, by the occurrence of any of the transactions
contemplated by this Agreement or the value of any of the benefits of which will
be calculated on the basis of the transactions contemplated by this Agreement,
(iv) contract, agreement or understanding to repurchase assets previously sold
(or to indemnify or otherwise compensate the purchaser in respect of such
assets), (v) contract containing covenants which limit the ability of Investors
or any Investors Subsidiary to compete in any line of business or with any
person or which involve any restriction of the geographical area in which, or
method by which, Investors or any Investors Subsidiary may carry on its business
(other than as may be required by law or applicable
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regulatory authorities), (vi) any contract, agreement or other instrument or
undertaking which is not terminable by Investors or any Investors Subsidiary
without additional payment or penalty within 60 days and obligates Investors or
any Investors Subsidiary for payments or other consideration with a value in
excess of $100,000, other than loan agreements entered into in the ordinary
course of business, or (vii) other executory material agreement as defined by
the instructions to Exhibit 10 under Item 601 of SEC Regulation S-K. Except as
set forth in the Investors Disclosure Letter, neither Investors nor any of the
Investors Subsidiaries is in Violation of any loan or credit agreement, note,
mortgage, indenture or other agreement, obligation or instrument applicable to
Investors or any Investors Subsidiary or their respective properties or assets,
except for any such Violations that would not, individually or in the aggregate,
have an Investors Material Adverse Effect. Investors has delivered a valid and
effective notice of termination pursuant to Section 3.3 of the Electronic Data
Processing and Management Information Service Agreement (the "EDP Agreement")
between Investors and Financial Information Trust (n/k/a Newtrend), dated April
30, 1990, as a result of which the EDP Agreement will terminate without penalty
in February 1996.
3.11. BENEFIT PLANS. (a) The Investors Disclosure Letter lists
(i) each employee bonus, incentive, deferred compensation, stock purchase, stock
appreciation right, stock option and severance pay plan, (ii) each pension,
profit sharing, stock bonus, thrift, savings and employee stock ownership plan,
and (iii) every other employee benefit plan (within the meaning of Section 3(3)
of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")
(collectively "Benefit Plans"), which Investors or any Investors Subsidiary
maintains or to which Investors or any Investors Subsidiary contributes on
behalf of current or former employees. Except as disclosed in the Investors
Disclosure Letter, all of the plans and programs listed in the Investors
Disclosure Letter (collectively, "Investors Benefit Plans") comply with all
applicable requirements of ERISA and all other applicable federal and state
laws, including without limitation the reporting and disclosure requirements of
Part 1 of Title I of ERISA. Each of the Investors Benefit Plans that is
intended to be a pension, profit sharing, stock bonus, thrift, savings or
employee stock ownership plan that is qualified under Section 401(a) of the Code
has been determined by the IRS to qualify under Section 401(a) of the Code, and,
except as disclosed in Investors Disclosure Letter, there exist no circumstances
that would adversely affect the qualified status of any such Investors Benefit
Plan under that section. No Investors Benefit Plan is a defined benefit pension
plan covered by Title IV of ERISA, and no such Plan is a "multi-employer plan"
within the meaning of Section 3(37) of ERISA. Except as set forth in the
Investors Disclosure Letter, there is no pending or, to the knowledge of
Investors, threatened litigation, governmental proceeding or investigation
against or relating to any Investors Benefit Plan, and to the knowledge of
Investors there is no reasonable basis for any material proceedings, claims,
actions or proceedings against any Plan. Except as set forth in the Investors
Disclosure Letter, no Investors Benefit Plan has engaged in a "prohibited
transaction" (as defined in Section 406 of ERISA and Section 4975(c) of the
Code) since the date on which said sections became applicable to such Plan, and
no Investors Benefit Plan has engaged in a transaction involving the purchase or
sale of employer securities by such Plan from or to a "disqualified person"
(within the meaning of Section 4975 of the Code). Neither Investors nor any
Subsidiary of Investors has incurred any "accumulated funding deficiency"
(within the meaning of Section 412 of the Code), whether or not waived, with
respect to any Investors Benefit Plan. All Investors Benefit Plans that are
group health plans, within the meaning of Section 4980B of the Code or Section
601 of ERISA, have been operated in material compliance with the group health
plan continuation coverage requirements of Section 4980B of the Code and Section
601 of ERISA to the extent such requirements are applicable.
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(b) Investors has delivered to Firstar copies of (i) each Investors
Benefit Plan, (ii) current summary plan descriptions of each Investors Benefit
Plan for which they are required, (iii) each trust agreement, insurance policy
or other instrument relating to the funding of any Investors Benefit Plan, (iv)
the most recent Annual Reports (Form 5500 series) and accompanying schedules
filed with the IRS or United States Department of Labor with respect to each
Investors Benefit Plan for which they are required, (v) the most recent
determination letter issued by the IRS with respect to each Investors Benefit
Plan that is intended to qualify under Section 401 of the Code, (vi) the most
recent available financial statements for each Investors Benefit Plan that has
assets, and (vii) the most recent audited financial statements for each
Investors Benefit Plan for which audited financial statements are required by
ERISA.
(c) The Investors Disclosure Letter describes any obligation that
Investors and/or any Subsidiaries of Investors has to provide health and welfare
benefits to retirees and other former employees or their dependents (other than
rights arising solely under Section 601 of ERISA or Section 4980B of the Code or
under Minnesota statutes requiring continuation of life insurance) including
information as to the number of retirees, other former employees and dependents
entitled to such coverage and their ages.
3.12. INSURANCE. Investors and each Investors Subsidiary is
presently insured, and during each of the past five calendar years has been
insured, for reasonable amounts with financially sound and reputable insurance
companies against such risks as, to the best knowledge of Investors, companies
engaged in a similar business would, in accordance with good business practice,
customarily be insured. Investors has delivered to Firstar correct and complete
copies of all material policies of insurance of Investors and the Investors
Subsidiaries currently in effect. Neither Investors nor any Investors
Subsidiary has any liability for material unpaid premiums or premium adjustments
not properly reflected on the Investors Financial Statements and no notice of
cancellation or termination has been received by Investors or any Investors
Subsidiary with respect to any material insurance policy currently in effect.
Within the last three years, neither Investors nor any Subsidiary of Investors
has been refused any insurance with respect to any assets or operations, nor has
any coverage been limited in any material respect as to any assets or
operations, by any insurance carrier to which it has applied for any such
insurance or with which it has carried insurance during the last five years.
3.13. CONDUCT OF INVESTORS TO DATE. Except as disclosed in
Investors Reports filed prior to the date of this Agreement or in the Investors
Disclosure Letter, and except as contemplated by this Agreement, the Plan of
Merger and the Bank Merger Agreement, from and after January 1, 1994 through the
date of this Agreement: (a) Investors and the Investors Subsidiaries have
carried on their respective businesses in the ordinary and usual course
consistent with past practices; (b) Investors has not amended the Investors
Certificate or the Investors Rights Agreement, issued or sold any of its capital
stock or made grants of its capital stock, or issued or sold any corporate debt
securities or otherwise incurred debt which would be classified as long-term
debt on the balance sheet of Investors; (c) Investors has not granted any option
for the purchase of its capital stock, effected any stock split, or otherwise
changed its capitalization; (d) Investors has not declared, set aside, or paid
any dividend or other distribution in respect of its capital stock, except for
regular quarterly cash dividends of $.125 per share of Investors Common Stock
and regular quarterly cash dividends on shares of Investors Preferred Stock as
required by the Investors Certificate, in each case with usual record and
payment dates or, directly or indirectly, redeemed or otherwise acquired any of
its capital stock; (e) neither Investors nor any Investors Subsidiary has (1)
incurred any material obligation or liability (absolute or contingent), except
borrowings from the Federal Home Loan Bank of Des Moines in the ordinary course
of business consistent with Investors' past practices ("FHLB Borrowings") and
other obligations or
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liabilities incurred in the ordinary course of business, or (2) except in
connection with FHLB Borrowings, mortgaged, pledged, or subjected to lien,
claim, security interest, charge, encumbrance or restriction any of its assets
or properties; (f) neither Investors nor any Investors Subsidiary has discharged
or satisfied any material lien, mortgage, pledge, claim, security interest,
charge, encumbrance, or restriction or paid any material obligation or liability
(absolute or contingent), other than in the ordinary course of business or in
connection with FHLB Borrowings; (g) neither Investors nor any Investors
Subsidiary has sold, assigned, transferred, leased, exchanged, or otherwise
disposed of (1) any mortgage servicing rights or (2) any of its other properties
or assets, in the case of this CLAUSE (2) other than in the ordinary course of
business; (h) neither Investors nor any Investors Subsidiary has increased the
rate of compensation of, or paid any bonus to, any of its directors or officers,
except merit or promotion increases in accordance with existing policy; entered
into any new, or amended or supplemented any existing, employment, management,
consulting, deferred compensation, severance, or other similar contract not
heretofore provided to Firstar; adopted, entered into, terminated, amended or
modified any Investors Benefit Plan in respect of any of present or former
directors, officers or other employees; amended, modified or taken any other
action in respect of the terms of any Investors Stock Options; made any
adjustment pursuant to the Investors Option Plan or Section 4(a) of the
Investors 1993 Stock Plan; or agreed to do any of the foregoing; (i) neither
Investors nor any Investors Subsidiary has suffered any material damage,
destruction or loss as the result of fire, explosion, earthquake, accident,
casualty, labor trouble, requisition or taking of property by any government or
any agency of any government, flood, windstorm, embargo, riot, act of God or the
enemy, or other similar or dissimilar casualty or event or otherwise, and
whether or not covered by insurance; (j) neither Investors nor any Investors
Subsidiary has cancelled or compromised any debt to an extent exceeding $100,000
owed to Investors or any Investors Subsidiary or claim to an extent exceeding
$100,000 asserted by Investors or any Investors Subsidiary; (k) neither
Investors nor any Investors Subsidiary has entered, or agreed to enter, into any
agreement or arrangement granting any right of refusal or other preferential
right to purchase any of its material assets, properties or rights or requiring
the consent of any party to the transfer and assignment of any such material
assets, properties or rights; (l) there has not been any other transaction,
commitment, dispute or other event or condition of any character (whether or not
in the ordinary course of business) individually or in the aggregate having or
which, insofar as reasonably can be foreseen, in the future is reasonably likely
to have, an Investors Material Adverse Effect, other than any changes resulting
primarily by reason of changes in savings institution laws or regulations (or
interpretations thereof), changes in the general level of interest rates or
changes in economic, financial or market conditions affecting the savings
institution industry generally in the regions in which Investors and the
Investors Subsidiaries operate; and (m) there has not been any change in the
method of accounting or accounting practices of Investors or any of the
Investors Subsidiaries. Except as set forth in the Investors Disclosure Letter,
none of Investors' President and Chief Executive Officer, any Executive Vice
President of Investors, the Senior Vice President and Chief Financial Officer of
Investors or the senior personnel administrator of Investors has any knowledge
of the announced or anticipated resignation of (1) any officer or key employee
of Investors or any of the Investors Subsidiaries or (2) other employees of
Investors or any Investors Subsidiary, in the case of this CLAUSE (2) at a rate
substantially higher than the historical resignation rate for such employees of
Investors or the Investors Subsidiaries, other than, in either case,
resignations that, individually or in the aggregate, are not reasonably likely
to have an Investors Material Adverse Effect. From and after January 1, 1994
through the date of this Agreement, no customers of Investors or any Investors
Subsidiary have indicated that they will stop or decrease the rate of business
done with Investors or any Investors Subsidiary (except for changes in the
ordinary course of business) that would, individually or in the aggregate, have
an Investors Material Adverse Effect.
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3.14. PROPERTIES, LEASES AND OTHER AGREEMENTS. Except as may be
reflected in the Investors Financial Statements, for any lien for current taxes
not yet delinquent, for pledges to secure deposits and for such other liens,
security interests, claims, charges, options or other encumbrances and
imperfections of title which do not materially affect the value of personal or
real property reflected in the Investors Financial Statements or acquired since
the date of such Statements and which do not materially interfere with or impair
the present and continued use of such property, Investors and its Subsidiaries
have good title, free and clear of any liens, security interests, claims,
charges, options or other encumbrances, to all of the personal and real property
reflected in the Investors Financial Statements, and all personal and real
property acquired since the date of such Statements, except such personal and
real property as has been disposed of in the ordinary course of business. The
Investors Disclosure Letter lists all acquisitions or dispositions of capital
assets planned as of the date of this Agreement by Investors or any Investors
Subsidiary, other than individual transactions with a value not in excess of
$100,000. Substantially all Investors' and each Investors Subsidiary's
buildings and equipment in regular use (including such buildings and equipment
as are leased) have been well maintained and are in good and serviceable
condition, reasonable wear and tear excepted. The Investors Disclosure Letter
contains a brief description, including terms, of each lease for real and
personal property to which Investors or any Investors Subsidiary is a party.
Investors or the applicable Investors Subsidiary, as lessee, has a valid and
existing leasehold interest under each of such leases, true and correct copies
of which Investors has delivered to Firstar. There is not, under any of such
leases relating to real property or any other material leases, any material
existing default by Investors, its Subsidiaries or, to the knowledge of
Investors, any other party thereto, or any event with notice or lapse of time or
both would constitute such a material default.
3.15. OPINION OF FINANCIAL ADVISOR. Investors has received the
opinion of Piper Jaffray Inc. dated the date hereof to the effect that, as of
the date hereof, the consideration to be received in the Merger by Investors'
stockholders is fair to Investors' stockholders from a financial point of view.
3.16. VOTE REQUIRED. The affirmative vote of holders of a
majority of the outstanding shares of Investors Common Stock is the only vote of
the holders of any class or series of Investors capital stock necessary to
approve this Agreement and the transactions contemplated hereby. Without
limitation, the voting requirements of Article 9 of the Investors Certificate
will not apply to any of the transactions contemplated by this Agreement.
3.17. ACCOUNTING AND TAX MATTERS. Neither Investors nor, to the
knowledge of Investors, any of its affiliates has taken or agreed to take any
action that would prevent Firstar from accounting for the business combination
to be effected by the Merger as a pooling of interests or would prevent the
Merger from qualifying as a reorganization under Section 368(a)(1) of the Code.
3.18. DISSENTERS' RIGHTS. Shares of Investors Common Stock are
currently quoted on the Nasdaq National Market of the Nasdaq Stock Market.
Assuming Firstar Common Stock is listed on the New York Stock Exchange, holders
of shares of Investors Common Stock will not be entitled to assert dissenters'
rights granted under Section 262 of the DGCL. Holders of shares of Investors
Preferred Stock will be entitled to assert dissenters' rights under such Section
262.
3.19. AFFILIATES. The Investors Disclosure Letter identifies
persons who are now "Affiliates" of Investors for purposes of Rule 145 under the
Securities Act ("Affiliates"). Investors has advised such persons of the
restrictions imposed by applicable securities laws upon the resale
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of Firstar Common Stock delivered in connection with the Merger. Each person
identified in such letter has executed a written agreement substantially in the
form attached as EXHIBIT 5.06 hereto.
3.20. AFFILIATE TRANSACTIONS. Except as set forth in the
Investors Disclosure Letter, neither Investors nor any of its Subsidiaries, nor
any executive officer or director of Investors, nor any member of the immediate
family of any such officer or director (which for the purposes hereof shall mean
a spouse, minor child or adult child living at the home of any such officer or
director), nor any entity which any of such person "controls" (within the
meaning of Regulation O of the Federal Reserve Board), has any loan agreement,
note or borrowing arrangement or any other agreement with Investors or any of
its Subsidiaries (other than normal employment arrangements) or any interest in
any property, real, personal or mixed, tangible or intangible, used in or
pertaining to the business of Investors or any of its Subsidiaries pursuant to
which the amount outstanding thereunder exceeds $60,000.
3.21. INTEREST RATE RISK MANAGEMENT INSTRUMENTS.
(a) The Investors Disclosure Letter sets forth a true, correct and
complete list of all interest rate swaps, caps, floors and option agreements and
other interest rate risk management arrangements to which Investors or any of
its Subsidiaries is a party or by which any of their properties or assets may be
bound. Investors has delivered or made available to Firstar true, correct and
complete copies of all such interest rate risk management agreements and
arrangements.
(b) All interest rate swaps, caps, floors and option agreements to
which Investors is subject and other interest rate risk management arrangements
to which Investors or any of its Subsidiaries is a party or by which any of
their properties or assets may be bound were entered into in the ordinary course
of business and, to the best of Investors' knowledge, in accordance with prudent
banking practice and applicable rules, regulations and policies of the
regulators to which Investors is subject and with counterparties believed to be
financially responsible at the time, are legal, valid and binding obligations
enforceable in accordance with their terms, and are in full force and effect.
Investors and each of its Subsidiaries has duly performed in all material
respects all of its obligations thereunder to the extent that such obligations
to perform have accrued; and to Investors' knowledge, there are no breaches,
violations or defaults or allegations or assertions of such by any party
thereunder.
3.22. REGULATORY IMPEDIMENTS. As of the date hereof, Investors is
not aware of the existence of any factor that would materially delay or
materially hinder the issuance of any of the required regulatory approvals
necessary to consummate the Merger, the Bank Merger and the transactions
contemplated hereby, other than any protests by any nongovernmental parties and
information contained in the Firstar Disclosure Letter (as defined in SECTION
4.02).
3.23. AMENDMENTS TO EMPLOYMENT AND SEVERANCE AGREEMENTS;
NONCOMPETITION AGREEMENTS. The Second Amended and Restated Employment Agreement
among James M. Burkholder, Investors and Firstar, the Noncompetition Agreement
between James M. Burkholder and Firstar, the Second Amended and Restated
Employment Agreement among John G. Lohmann, Jr., Investors and Firstar, the
Noncompetition Agreement between John G. Lohmann, Jr. and Firstar, the Second
Amended and Restated Employment Agreement among Daniel A. Arrigoni, Investors
and Firstar, and the Noncompetition Agreement between Daniel A. Arrigoni and
Firstar, each dated as of August 21, 1994, and the Amendment to Severance Pay
Agreement between Investors Bank and Lynn V. Bueltel, dated as of August 1, 1994
(a true and correct copy of which has been delivered to Firstar), have been duly
executed and delivered by the parties thereto other
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than Firstar. Each such agreement constitutes a valid and binding obligation of
the parties thereto other than Firstar, enforceable in accordance with its
terms.
3.24. FULL DISCLOSURE. The representations and warranties of
Investors contained in this Agreement do not omit any material fact necessary to
make the statements contained therein, in light of the circumstances under which
they were made, not misleading. There is no fact known to Investors which has
not been disclosed to Firstar pursuant to this Agreement, the Investors
Disclosure Letter and the Investors Reports, all taken together as a whole,
which would have or would reasonably be expected to have an Investors Material
Adverse Effect or a material adverse effect on the ability of Investors to
consummate the transactions contemplated hereby.
3.25. NO DISCUSSIONS. As of the date of this Agreement, neither
Investors nor any Investors Subsidiary, nor any of its or their Representatives
(as defined in SECTION 5.02(f)), are, directly or indirectly, soliciting,
initiating or engaged in any discussions or other negotiations with, or
providing any information to, any third party concerning any possible proposal
regarding a Competing Transaction.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF FIRSTAR AND SUB
Firstar and Sub, jointly and severally, represent and warrant to
Investors as follows:
4.01. ORGANIZATION, STANDING AND POWER. Firstar is a corporation
duly organized, validly existing and in active status under the laws of the
State of Wisconsin and has all requisite corporate power and authority to own,
lease and operate its properties and to carry on its business as now being
conducted, except where the failure to have such power or authority would not
have a material adverse effect on the business, operations, prospects or
financial condition of Firstar and its Subsidiaries taken as a whole (a "Firstar
Material Adverse Effect"). Sub is a corporation duly organized, validly
existing and in good standing under the laws of the State of Minnesota and has
all requisite corporate power and authority to own, lease and operate its
properties and to carry on its business as now being conducted, except where the
failure to have such power or authority would not have a Firstar Material
Adverse Effect. Each of Firstar and Sub is qualified to do business and is in
good standing in each other state or foreign jurisdiction where its ownership or
leasing of property or the conduct of its business requires it to be so
qualified and where the failure to be so qualified would have a Firstar Material
Adverse Effect. Each of Firstar and Sub is registered as a bank holding company
with the Federal Reserve Board under the BHC Act. Firstar has delivered to
Investors true, accurate and complete copies of the currently effective Restated
Articles of Incorporation and By-laws of Firstar, including all amendments
thereto.
4.02. FIRSTAR SUBSIDIARIES. Except as set forth in the Firstar
Disclosure Letter (which is a letter delivered by Firstar and Sub to Investors
on the date hereof, the receipt thereof having been acknowledged by Investors
executing a copy thereof), Firstar beneficially owns, directly or indirectly,
all of the shares of the outstanding capital stock of Sub and each of the
Subsidiaries listed in the Firstar Disclosure Letter (herein, including Sub,
called collectively the "Firstar Subsidiaries" or individually a "Firstar
Subsidiary"), which constitute Firstar's principal operating subsidiaries as of
the date of this Agreement. No equity securities of any of the Firstar
Subsidiaries are or may become required to be issued by reason of any option,
warrants, calls, rights or agreements of any character whatsoever; there are
outstanding no securities or rights convertible into or exchangeable for shares
of any capital stock of any Firstar
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Subsidiary; and there are no other contracts, commitments, understandings or
arrangements by which any Firstar Subsidiary is bound to issue additional shares
of its capital stock or options, warrants, calls, rights or agreements to
purchase or acquire any additional shares of its capital stock. Except as
provided for under any applicable banking statute and except as set forth in the
Firstar Disclosure Letter, all of the shares of capital stock of each of the
Firstar Subsidiaries owned by Firstar are fully paid and nonassessable (except
as provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law
("WBCL")) and are owned by it free and clear of any claim, lien, encumbrance or
agreement with respect thereto. Each Firstar Subsidiary is a banking
association or a corporation, in each case duly organized, validly existing and
in good standing or in active status under the laws of its jurisdiction of
incorporation, and has the corporate power and authority to own or lease its
properties and assets and to carry on its business as it is now being conducted,
except where the failure to have such power or authority would not have a
Firstar Material Adverse Effect. Each Firstar Subsidiary that is a national
bank is a member of the Federal Reserve System. The deposits of each Firstar
Subsidiary that is a banking institution and accepts deposits are insured by the
FDIC to the extent provided by law. Firstar has delivered to Investors true,
accurate and complete copies of the currently effective Articles of
Incorporation and By-laws of Sub.
4.03. CAPITAL STRUCTURE. As of the date hereof, the authorized
capital stock of Firstar consists of 120,000,000 shares of Firstar Common Stock
and 2,500,000 shares of preferred stock, par value $1.00. No shares of
preferred stock are issued and outstanding on the date hereof. Except as
contemplated in the Merger Agreements, as set forth in the Firstar Disclosure
Letter or as set forth in the most recent report of Firstar filed with the SEC
on Form 10-K, there are, as of the date of the Merger Agreements, no outstanding
options, warrants, calls, rights, commitments or agreements of any character
whatsoever to which Firstar or any Firstar Subsidiary is a party or by which it
is bound obligating Firstar or any Firstar Subsidiary to issue, deliver or sell,
or cause to be issued, delivered or sold, additional shares of capital stock or
any Voting Debt securities of Firstar or of any Firstar Subsidiary or obligating
Firstar or any Firstar Subsidiary to grant, extend or enter into any such
option, warrant, call, right, commitment or agreement. All outstanding shares
of Firstar capital stock are, and the shares of Firstar Common Stock to be
issued pursuant to or as specifically contemplated by the Merger Agreements will
be, validly issued, fully paid and nonassessable (except as provided in WBCL
Section 180.0622(2)(b)) and not subject to preemptive rights. As of the date
hereof, the authorized capital stock of Sub consists of 10,000 shares of common
stock, $1.00 par value, 1,000 of which are validly issued, fully paid and
nonassessable; all of the issued shares are owned by Firstar.
4.04. AUTHORITY. Firstar and Sub have all requisite corporate
power and authority to enter into this Agreement and the Plan of Merger and to
consummate the transactions contemplated hereby and thereby. The execution and
delivery of this Agreement and the Plan of Merger and the consummation of the
transactions contemplated hereby and thereby have been duly authorized by all
necessary corporate action on the part of Firstar and Sub. Approval of this
Agreement and the Plan of Merger by stockholders of Firstar is not required
under the WBCL, the rules of the New York Stock Exchange or otherwise. This
Agreement and the Plan of Merger have been duly executed and delivered by
Firstar and Sub, and each constitutes a valid and binding obligation of Firstar
and Sub enforceable in accordance with its terms. Upon execution and delivery
thereof by Investors Bank and Firstar Bank, the Bank Merger Agreement will have
been duly executed and delivered by Firstar Bank and will constitute a valid and
binding obligation of Firstar Bank enforceable in accordance with its terms.
The execution and delivery of this Agreement and the Plan of Merger do not, and
the execution and delivery of the Bank Merger Agreement and the consummation of
the transactions contemplated hereby and thereby will not, result in any
Violation pursuant to any provision of (a) the Restated Articles of
Incorporation or By-laws of Firstar or any Firstar Subsidiary or (b) except (i)
as set forth in the Firstar Disclosure Letter or (ii) as contemplated by the
next sentence hereof, any loan or credit agreement, note,
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mortgage, indenture, lease, Firstar Benefit Plan (as defined in SECTION 4.11) or
other agreement, obligation, instrument, permit, franchise, license, judgment,
order, decree, statute, law, ordinance, rule or regulation applicable to Firstar
or any Firstar Subsidiary or their respective properties or assets which
Violation would have a Firstar Material Adverse Effect. Other than in
connection or in compliance with the provisions of the WBCL and the MBCA, the
Securities Act, the Exchange Act, the securities or blue sky laws of the various
states, and consents, authorizations, approvals, notices or exemptions required
under the BHC Act, the SLHC Act, the FDI Act, the HOLA and the HSR Act, no
consent, approval, order or authorization of, or registration, declaration or
filing with, any Governmental Entity is required on the part of Firstar or any
Firstar Subsidiary in connection with the execution and delivery of this
Agreement, the Plan of Merger and the Bank Merger Agreement by Firstar or
Firstar Bank, as the case may be, or the consummation by Firstar or Firstar
Bank, as the case may be, of the transactions contemplated hereby and thereby,
the failure to obtain which would have a Firstar Material Adverse Effect.
4.05. FIRSTAR FINANCIAL STATEMENTS. The consolidated balance
sheets of Firstar as of December 31, 1993 and 1992 and the related consolidated
statements of income, consolidated statements of cash flows and consolidated
statements of shareholders' equity for the three years in the period ended
December 31, 1993, accompanied by the unqualified opinion of KPMG Peat Marwick,
copies of which have been furnished by Firstar to Investors; the unaudited
consolidated balance sheet of Firstar as of June 30, 1994 and the related
consolidated statement of income, consolidated statement of cash flows and
consolidated statement of shareholders' equity for the six months then ended, in
the form prepared for Firstar's internal use, copies of which have been
furnished by Firstar to Investors; and like financial information included in
Forms 10-Q filed with the SEC subsequent to the Latest Statement Date
(collectively, the "Firstar Financial Statements"), have been prepared in
accordance with generally accepted accounting principles as utilized in the
Firstar Financial Statements applied on a consistent basis (except as may be
indicated therein or in the notes thereto), and present fairly the consolidated
financial condition of Firstar at the dates, and the consolidated results of
operations, changes in stockholders' equity and cash flows for the periods,
stated therein. In the case of interim fiscal periods, all adjustments,
consisting only of normal recurring items, which management of Firstar believes
necessary for a fair presentation of such financial information, have been made,
subject to year-end audit adjustments, none of which could reasonably be
expected to have a material adverse effect on the consolidated financial
position or results of operations of Firstar.
4.06. REPORTS. Since January 1, 1991, Firstar and the Firstar
Subsidiaries have filed all reports, registrations and statements, together with
any amendments required to be made with respect thereto, that were and are
required to be filed with (i) the SEC, including but not limited to Forms 10-K,
Forms 10-Q, Forms 8-K and proxy statements, (ii) the Federal Reserve Board,
(iii) the Comptroller, (iv) the FDIC and (v) any applicable federal or state
securities or banking authorities (all such reports and statements are
collectively referred to herein as the "Firstar Reports"). As of their
respective dates, the Firstar Reports filed prior to the date hereof complied
and will comply in all material respects with all of the statutes, rules and
regulations enforced or promulgated by the regulatory authority with which they
were filed (including, to the extent applicable, Rule 10b-5 promulgated under
the Exchange Act) and did not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein.
4.07. AUTHORIZATIONS; COMPLIANCE WITH APPLICABLE LAWS. Firstar
and the Firstar Subsidiaries hold all authorizations, permits, licenses,
variances, exemptions, orders and approvals of all Governmental Entities which
are material to the operation of the businesses of Firstar and the Firstar
Subsidiaries taken as a whole (the "Firstar Permits"), including appropriate
authorizations from the Federal Reserve Board and Comptroller, except where the
failure to hold
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the same could not reasonably be expected to have a Firstar Material Adverse
Effect. Firstar and the Firstar Subsidiaries are in compliance with the terms
of the Firstar Permits, except where the failure so to comply could not
reasonably be expected to have a Firstar Material Adverse Effect. Except as
disclosed in the Firstar Reports filed prior to the date of this Agreement, the
businesses of Firstar and the Firstar Subsidiaries are not being conducted in
violation of any Law, except for possible violations which individually or in
the aggregate do not, and, insofar as reasonably can be foreseen, in the future
will not, have a Firstar Material Adverse Effect. Except as disclosed in the
Firstar Reports filed prior to the date hereof or set forth in the Firstar
Disclosure Letter and except for regular, periodic reviews and examinations by
Governmental Entities, as of the date of this Agreement, no investigation or
review by any Governmental Entity with respect to Firstar or any of the Firstar
Subsidiaries is pending or, to the knowledge of Firstar, threatened, nor has any
Governmental Entity indicated an intention to conduct the same, other than, in
each case, those the outcome of which, as far as reasonably can be foreseen,
will not have a Firstar Material Adverse Effect.
4.08. LITIGATION. Except as disclosed in the Firstar Reports
filed prior to the date of this Agreement or in the Firstar Disclosure Letter,
there is no Proceeding pending or, to the knowledge of Firstar, threatened
against or affecting Firstar or any Firstar Subsidiary which is reasonably
likely to have a Firstar Material Adverse Effect, nor is there any judgment,
order, writ, injunction, decree or award of any Governmental Entity or
arbitrator outstanding against Firstar or any Firstar Subsidiary having, or
which, insofar as reasonably can be foreseen, in the future could have, any such
effect.
4.09. TAXES. Firstar and each of the Firstar Subsidiaries has
filed all tax returns required to be filed by them and has paid (or Firstar has
paid on its behalf), or has set up an adequate reserve for the payment of, all
taxes required to be paid as shown on such returns, and the most recent
financial statements contained in the Firstar Reports reflect an adequate
reserve for all taxes payable by Firstar and the Firstar Subsidiaries accrued
through the date of such financial statements; provided, however, that the
foregoing representation is made only to the best of Firstar's knowledge with
respect to each Firstar Subsidiary that has been, directly or indirectly,
acquired by Firstar subsequent to July 1, 1989. No material deficiencies for
any taxes have been proposed, asserted or assessed against Firstar or any
Firstar Subsidiary.
4.10. CERTAIN AGREEMENTS. Except as disclosed in the Firstar
Reports filed prior to the date of this Agreement, and except for this
Agreement, as of the date of this Agreement, neither Firstar nor any Firstar
Subsidiary is a party to any oral or written (i) agreement with any executive
officer or other key employee of Firstar or any Firstar Subsidiary the benefits
of which are contingent, or the terms of which are materially altered, upon the
occurrence of a transaction involving Firstar or any Firstar Subsidiary of the
nature contemplated by this Agreement, (ii) agreement or plan, including any
stock option plan, stock appreciation right plan, restricted stock plan or stock
purchase plan, any of the benefits of which will be increased, or the vesting of
the benefits of which will be accelerated, by the occurrence of any of the
transactions contemplated by this Agreement or the value of any of the benefits
of which will be calculated on the basis of any of the transactions contemplated
by this Agreement, (iii) contract containing covenants that limit the ability of
Firstar or any Firstar Subsidiary to compete in any line of business or with any
person or which involve any restriction on the geographical area in which, or
method by which, Firstar or any Firstar Subsidiary may carry on its business
(other than as required by law or applicable regulatory authority), or (iv)
other executory agreement as defined by the instructions to Exhibit 10 under
Rule 601 of the SEC. Except as set forth in the Firstar Disclosure Letter,
neither Firstar nor any Firstar Subsidiary is in Violation of any loan or credit
agreement, note, mortgage, indenture or other agreement, obligation or
instrument applicable to Firstar or any Firstar Subsidiary or their
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respective properties or assets, except for any Violation that would not,
individually or in the aggregate, have a Firstar Material Adverse Effect.
4.11. BENEFIT PLANS. (i) With respect to the Benefit Plans
maintained by Firstar and any Firstar Subsidiary or to which Firstar or any
Firstar Subsidiary contributes on behalf of current or former employees as of
the date of this Agreement (the "Firstar Benefit Plans"), individually and in
the aggregate, no event has occurred, and to the knowledge of Firstar or any of
its Subsidiaries, there exists no condition or set of circumstances in
connection with which Firstar or any of its Subsidiaries could be subject to any
liability that is reasonably likely to have a Firstar Material Adverse Effect
(except liability for benefits claims and funding obligations payable in the
ordinary course) under ERISA, the Code or any other applicable law.
(ii) Except as disclosed in the Firstar Reports filed prior to the
date hereof or as set forth in the Firstar Disclosure Letter, with respect to
the Firstar Benefit Plans, individually and in the aggregate, there are no
funded benefit obligations for which contributions have not been made or
properly accrued and there are no unfunded benefit obligations which have not
been accounted for by reserves, or otherwise properly footnoted in accordance
with generally accepted accounting principles, on the financial statements of
Firstar, which obligations are reasonably likely to have a Firstar Material
Adverse Effect.
4.12. ABSENCE OF CERTAIN CHANGES OR EVENTS. Except as disclosed
in the Firstar Reports filed prior to the date of this Agreement or in the
Firstar Disclosure Letter, and except as contemplated by this Agreement, the
Plan of Merger and the Bank Merger Agreement, from and after January 1, 1994 and
to the date of this Agreement: (a) Firstar and the Firstar Subsidiaries have
conducted their respective businesses only in the ordinary and usual course
consistent with past practice, (b) Firstar has not declared, set aside or paid
any dividend or other distribution in respect to any of Firstar's capital stock,
except for regular quarterly cash dividends not exceeding $.30 per share on
Firstar Common Stock with usual record and payment dates for such dividends, (c)
other than any changes resulting primarily by reason of changes in banking laws
or regulations (or interpretations thereof), changes in the general level of
interest rates or changes in economic, financial or market conditions affecting
the banking industry generally in the regions in which Firstar and the Firstar
Subsidiaries operate, there has not been any transaction, commitment, dispute or
other event or condition of any character (whether or not in the ordinary course
of business) individually or in the aggregate having or which, insofar as
reasonably can be foreseen, in the future is reasonably likely to have, a
Firstar Material Adverse Effect and (d) there has not been any material change
in the method of accounting or accounting practices of Firstar and the Firstar
Subsidiaries.
4.13. PROPERTIES, LEASES AND OTHER AGREEMENTS. Except as may be
reflected in the Firstar Financial Statements, for any lien for current taxes
not yet delinquent, for pledges to secure deposits and for such other liens,
security interests, claims, charges, options or other encumbrances and
imperfections of title which do not materially affect the value of personal or
real property reflected in the Firstar Financial Statements or acquired since
the date of such Statements and which do not materially interfere with or impair
the present and continued use of such property, Firstar and the Firstar
Subsidiaries have good title, free and clear of any liens, security interests,
claims, charges, options or other encumbrances to all of the personal and real
property reflected in the Firstar Financial Statements, and all personal and
real property acquired since the date of such Statements, except such personal
and real property as has been disposed of in the ordinary course of business.
All leases material to Firstar and the Firstar Subsidiaries pursuant to which
Firstar or any of the Firstar Subsidiaries, as lessee, leases real or personal
property are valid and effective in accordance with their respective terms and
there is not, under any of such leases,
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any material existing default by Firstar, any of the Firstar Subsidiaries or, to
the best knowledge of Firstar, any other party thereto, or any event with notice
or lapse of time or both would constitute such a material default.
4.14. ACCOUNTING AND TAX MATTERS. To the knowledge of Firstar,
neither Firstar nor any of its affiliates has through the date hereof taken or
agreed to take any action that would prevent Firstar from accounting for the
business combination to be effected by the Merger as a pooling of interests or
would prevent the Merger from qualifying as a reorganization under Section
368(a)(1)(A) of the Code.
4.15. REGULATORY IMPEDIMENTS. As of the date hereof, except as
set forth in the Firstar Disclosure Letter, Firstar is not aware of the
existence of any factor that would materially delay or materially hinder
issuance of any of the required regulatory approvals necessary to consummate the
Merger, the Bank Merger and the transactions contemplated hereby, other than any
protests by nongovernmental parties.
ARTICLE V
COVENANTS OF INVESTORS
5.01. AFFIRMATIVE COVENANTS. Investors hereby covenants and
agrees with Firstar that prior to the Effective Time or until the earlier
termination or abandonment of this Agreement is accordance with its terms,
unless the prior written consent of Firstar shall have been obtained and except
as otherwise contemplated herein, it will and it will cause its respective
Subsidiaries to:
(a) operate its business only in the usual, regular and ordinary
course consistent with past practices;
(b) preserve substantially intact its business organization and
assets (except for acquisitions and dispositions of assets in the ordinary
course of business consistent with past practices, unless otherwise required by
the terms of this Agreement), and maintain its rights and franchises, and use
its reasonable best efforts to retain the services of its officers and key
employees (except that it shall have the right to terminate the employment of
any officer or key employee in accordance with established employment
procedures) and maintain its relationships with customers;
(c) maintain and keep its properties in as good repair and condition
as at present, except for depreciation due to ordinary wear and tear;
(d) keep in full force and effect, to the extent consistent with
types and amounts thereof used by companies in a similar business, insurance and
bonds comparable in amount and scope of coverage to that now maintained by it;
(e) perform in all material respects all obligations required to be
performed by it under all material contracts, leases, and documents relating to
or affecting its assets, properties, and business;
(f) comply with and perform in all material respects all material
obligations and duties imposed upon it by all Laws; and
(g) notify Firstar immediately by telephone, and thereafter promptly
confirm in writing, if any of the matters described in SECTION 5.02(f) occurs,
whether as a result of action by
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Investors, any Investors Subsidiary or any Representatives (as defined therein)
of Investors, or if any person makes any offer or other proposal concerning a
Competing Transaction (as defined in SECTION 5.02(f)); such notice shall include
the name of any person other than Investors, an Investors Subsidiary and their
Representatives involved in such matter and, after receipt of any written offer
or proposal from such person, a copy of any written offers, proposals,
agreements or other documents with respect to such offer or proposal.
5.02. NEGATIVE COVENANTS. Except as specifically contemplated by
this Agreement, from the date hereof until the Effective Time, Investors shall
not do, or permit any of its Subsidiaries to do, without the prior written
consent of Firstar, any of the following:
(a) incur any material liabilities or material obligations, whether
directly or by way of guaranty, including any obligation for borrowed money
whether or not evidenced by a note, bond, debenture or similar instrument,
except in the ordinary course of business consistent with past practice (which
exception shall include, without limitation, insured accounts established and
FHLB Borrowings);
(b)(i) grant any general increase in compensation to its employees
as a class, or to its officers or directors, except in accordance with past
practice or as required by law, or increases which are not material, (ii) effect
any change in retirement benefits to any class of employees or officers (unless
any such change shall be required by applicable law) which would increase its
retirement benefit liabilities, (iii) adopt, enter into, amend or modify any
Investors Benefit Plan, make any adjustments pursuant to the Investors Stock
Option Plan or Section 4C of the Investors 1993 Stock Plan or make any grants
pursuant to the Investors Stock Option Plan or the Investors 1993 Stock Plan, or
(iv) enter into or amend any employment, severance or similar agreements or
arrangements with any directors or officers or former directors or officers;
(c)(i) declare or pay any dividend on, or make any other
distribution in respect of, its outstanding shares of capital stock, except for
(A) regular quarterly cash dividends on the Investors Common Stock at a rate not
in excess of $.125 per share, and regularly quarterly cash dividends on the
Investors Preferred Stock as contemplated by the Investors Certificate, in each
case with usual record and payment dates for such dividends, and (B) dividends
by a wholly-owned Subsidiary of Investors;
(c)(ii) except as hereinbelow provided, declare or pay any dividends
or make any distributions in any amount on Investors Common Stock in the quarter
in which the Effective Time shall occur and in which the stockholders of
Investors Common Stock are entitled to receive dividends on the shares of
Firstar Common Stock into which the shares of Investors Common Stock have been
converted; it is the intent of this CLAUSE (ii) to provide that the holders of
Investors Common Stock will receive either the payment of cash dividends on
their shares of Investors Common Stock or the payment of cash dividends as the
holders of shares of Firstar Common Stock received in exchange for the shares of
Investors Common Stock for the calendar quarter during which the Effective Time
shall occur, but will not receive and will not become entitled to receive for
the same calendar quarter both the payment of a cash dividend as holders of
Investors Common Stock and the payment of a cash dividend as holders of the
shares of Firstar Common Stock received in exchange for the shares of Investors
Common Stock; and if Investors does not declare and pay cash dividends in a
particular calendar quarter because of Investors' reasonable expectation that
the Effective Time was to have occurred in such calendar quarter wherein the
holders of Investors Common Stock would have become entitled to receive cash
dividends for such calendar quarter on the shares of Firstar Common Stock to
have been exchanged for the shares of Investors Common Stock, and the Effective
Time does not in fact occur in such calendar
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quarter, then, as a result thereof, Investors shall be entitled to declare and
pay a cash dividend (within the limitations of this SECTION 5.02) on such shares
of Investors Common Stock for such calendar quarter by the declaration and
payment of such cash dividends as soon as reasonably practicable;
(d)(i) except as provided in SECTION 5.06 and SECTION 5.17, redeem,
purchase or otherwise acquire any shares of its capital stock or any securities
or obligations convertible into or exchangeable for any shares of its capital
stock, or any options, warrants, conversion or other rights to acquire any
shares of its capital stock or any such securities or obligations (except
pursuant to the exercise of the Investors Options and/or Investors Warrants in
accordance with their terms); (ii) merge with or into, or permit Investors Bank
to merge with or into, any other corporation or savings institution or bank,
permit any other corporation or savings institution or bank to merge into it or
Investors Bank or consolidate with, or permit Investors Bank to consolidate
with, any other corporation or savings institution or bank, or effect any
reorganization or recapitalization; (iii) purchase or otherwise acquire any
substantial portion of the assets, or more than 5% of any class of stock, of any
corporation, bank, savings institution or other business; (iv) liquidate, sell,
dispose of, or encumber any assets or acquire any assets, except in the ordinary
course of its business consistent with past practice (which exception shall
include, without limitation, dispositions or acquisitions of "real estate owned"
properties of Investors or any Investors Subsidiary and loans (with servicing
rights retained) consistent with past practices); or (v) split, combine or
reclassify any of its capital stock or issue or authorize or propose the
issuance of any other securities in respect of, in lieu of or in substitution
for shares of its capital stock;
(e) issue, deliver, award, grant or sell, or authorize or propose the
issuance, delivery, award, grant or sale of, any shares of its capital stock of
any class (including shares held in treasury), any Voting Debt or any securities
convertible into, or any rights, warrants or options to acquire, any such
shares, Voting Debt or convertible securities, other than (i) the issuance of
Investors Common Stock pursuant to the Investors Options or the Investors
Warrants, in each case in accordance with their present terms, and (ii)
issuances by a wholly-owned Subsidiary of its capital stock to its parent;
(f) initiate, solicit or encourage (including by way of furnishing
information or assistance), or take any other action to facilitate, any
inquiries or the making of any proposal which constitutes, or may reasonably be
expected to lead to, any Competing Transaction (as such term is defined below),
or negotiate with any person in furtherance of such inquiries or to obtain a
Competing Transaction, or agree to or endorse any Competing Transaction, or
authorize or permit any of its officers, directors or employees or any
investment banker, financial advisor (including the firm named in SECTION 3.15),
attorney, accountant or other representative retained by it or any of the
Investors Subsidiaries ("Representatives") to take any such action; provided,
however, that nothing contained in this SUBSECTION (f) shall prohibit the Board
of Directors of Investors from (i) furnishing information to or permitting any
of its Representatives to furnish information to any party that requests
information as to Investors and its Subsidiaries if (A) the Board of Directors
of Investors, based upon the advice of counsel, determines in good faith that
such action is required for the Board of Directors of Investors to comply with
its fiduciary duties to stockholders imposed by law and (B) prior to furnishing
such information to such party, Investors receives from such party an executed
confidentiality agreement in reasonably customary form, (ii) furnishing
information to, or entering into discussions or negotiations with, any person or
entity that makes an unsolicited BONA FIDE written proposal to acquire Investors
pursuant to a merger, consolidation, tender offer, share exchange, business
combination, stock or asset purchase or other similar transaction if (A) the
Board of Directors, after consultation with and based upon receipt of written
advice from Dorsey & Whitney (a copy of which Investors shall promptly deliver
to Firstar), or
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other counsel acceptable to Firstar, determines in good faith that such action
is required for the Board of Directors to comply with its fiduciary duties to
Investors' stockholders under applicable law, (B) the Board of Directors of
Investors has no reason to believe that the written proposal is not made in good
faith, and (C) prior to furnishing such information to such person or entity,
Investors receives from such person or entity an executed confidentiality
agreement in reasonably customary form, (iii) complying with Rule 14e-2 under
the Exchange Act, or (iv) making any public statement required by law or the
requirements of the Nasdaq Stock Market. For purposes of this Agreement,
"Competing Transaction" shall mean any of the following involving Investors or
any of the Investors Subsidiaries: any merger, consolidation, share exchange or
other business combination; a sale, lease, exchange, mortgage, pledge, transfer
or other disposition of a substantial portion of the consolidated assets of
Investors and its Subsidiaries; a sale of shares of voting capital stock
constituting more than 15% of the voting capital stock of Investors (or
securities convertible or exchangeable into or otherwise evidencing, or any
agreement or instrument evidencing, the right to acquire such voting capital
stock); a tender offer or exchange offer for at least 15% of the outstanding
shares of Investors Common Stock; a solicitation of proxies in opposition to
approval of the Merger by Investors' stockholders; or a public announcement of a
BONA FIDE proposal, plan or intention to do any of the foregoing;
(g) propose or adopt any amendments to its corporate charter, by-laws
or the Investors Rights Agreement in any way adverse to Firstar;
(h) authorize, recommend, propose or announce an intention to
authorize, recommend or propose, or enter into an agreement in principle with
respect to any acquisition of a material amount of assets or securities or any
release or relinquishment of any material contract rights not in the ordinary
course of business;
(i) except in their fiduciary capacities, purchase any shares of
Firstar Common Stock;
(j) change any of its methods of accounting in effect at December 31,
1993, or change any of its methods of reporting income or deductions for federal
income tax purposes from those employed in the preparation of the federal income
tax returns for the taxable year ending December 31, 1993, except as may be
required by law or generally accepted accounting principles;
(k) take action which would or is reasonably likely to (i) adversely
affect the ability of either of Firstar or Investors to obtain any necessary
approvals of governmental authorities required for the transactions contemplated
hereby; (ii) adversely affect Investors' ability to perform its covenants and
agreements under this Agreement; or (iii) result in any of the conditions to the
Merger set forth in ARTICLE VIII not being satisfied or in a violation of any
provision of the Bank Merger Agreement;
(l) change the lending, investment, liability management and other
material policies concerning the banking business of Investors and the Investors
Subsidiaries, unless required by Law or order or unless such change does not
cause a materially adverse effect on Investors or any of its Subsidiaries;
(m) make any additional borrowings from the Federal Home Loan Bank of
Des Moines or renew any current such borrowings, in each case other than in the
ordinary course of business consistent with Investors' past practices (it being
understood that Investors increases, renews, extends, borrows, pays, grants
security and other interests with respect to, and otherwise deals with, FHLB
Borrowings in the ordinary course of its business);
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(n) pay any fees of any legal counsel or tax adviser retained in
connection with the Merger, including Dorsey & Whitney and KPMG Peat Marwick,
calculated on a basis other than an hourly basis at the maximum rates per hour
set forth in the Investors Disclosure Letter, with bills detailing such hours
and hourly charges to be submitted to Investors prior to the Effective Time;
(o) with respect to properties leased by Investors or any of the
Investors Subsidiaries, renew, exercise an option to extend, cancel or surrender
any lease of real property or allow any such lease to lapse, without prior
consultation with Firstar; or
(p) agree in writing or otherwise to do any of the foregoing.
5.03. LETTER OF INVESTORS' ACCOUNTANTS. At the request of
Firstar, Investors shall use its best efforts to cause to be delivered to
Firstar "cold comfort" letters of KPMG Peat Marwick, Investors' independent
public accountants, dated the date on which the S-4 shall become effective and
the Effective Time, respectively, and addressed to Firstar, in form and
substance reasonably satisfactory to Firstar and reasonably customary in scope
and substance for letters delivered by independent public accountants in
connection with registration statements similar to the S-4 and transactions such
as those contemplated by the Merger Agreements.
5.04. ACCESS AND INFORMATION. Except where prohibited by law,
upon reasonable notice, Investors shall (and shall cause its Subsidiaries to)
afford to Firstar's officers, employees, accountants, counsel and other
representatives, access, during normal business hours during the period prior to
the Effective Time, to all books, papers and records relating to the assets,
stock, properties, operations, obligations and liabilities of Investors and the
Investors Subsidiaries, including without limitation all books of account, tax
records, minute books of directors' and stockholders' meetings, contracts and
agreements, filings with any regulatory authority, accountants' work papers,
litigation files (other than attorney work product or materials protected by any
attorney-client privilege), documents relating to assets and title thereto,
plans affecting employees, securities transfer records and stockholder lists,
and any books, papers and records relating to other assets, business activities
or prospects in which Firstar may have a reasonable interest, including without
limitation, its interest in planning for integration and transition with respect
to the business of Investors and the Investors Subsidiaries. During such
period, Investors will cause one or more of its representatives to confer on a
regular and frequent basis with representatives of Firstar, to report on the
general status of its ongoing operations and to consult as to the making of any
decisions or the taking of any actions in matters other than in the ordinary
course of business. During such period, Investors shall (and shall cause each
of its Subsidiaries to), except where prohibited by law, furnish promptly to
Firstar (i) a copy of each Investors Report filed or received by it during such
period pursuant to the requirements of federal securities laws, the SLHC Act and
any other federal or state banking or savings institution laws promptly after
such documents are available, (ii) the monthly financial statements of Investors
and the Investors Subsidiaries (as prepared by Investors in accordance with its
normal accounting procedures) promptly after such financial statements are
available, (iii) a summary of any action taken by the Board of Directors, or any
committee thereof, of Investors, (iv) the reports of management of Investors and
each of the Subsidiaries of Investors customarily provided to their respective
Boards of Directors, and (v) all other information concerning its business,
properties and personnel as Firstar may reasonably request. During such period,
Investors shall, and shall cause the Investors Subsidiaries to, instruct its
officers, employees, counsel and accountants to be available for, and respond to
any questions of, Firstar's officers, employees, accountants, counsel and other
representatives at reasonable hours and with reasonable notice by Firstar to
such individuals, and
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to cooperate fully with Firstar in planning for the integration of the business
of Investors and the Investors Subsidiaries with the business of Firstar and its
Subsidiaries.
5.05. UPDATE DISCLOSURE; BREACHES. (a) From and after the date
hereof until the Effective Time, Investors shall periodically, but not less
frequently than monthly, update the Investors Disclosure Letter by notice to
Firstar to reflect any matters which have occurred from and after the date
hereof which, if existing on the date hereof, would have been required to be
described therein; provided, however, that no such update shall affect the
conditions to the obligation of Firstar and Sub to consummate the transactions
contemplated hereby, and any and all changes contained in any such update shall
be considered in determining whether such conditions have been satisfied.
(b) Investors shall, in the event it becomes aware of the impending
or threatened occurrence of any event or condition which would cause or
constitute a material breach (or would have caused or constituted a breach had
such event occurred or been known prior to the date hereof) of any of its
representations or agreements contained or referred to herein or which would
cause any of the conditions to the obligations of any party set forth in ARTICLE
VIII not to be satisfied, give prompt written notice thereof to Firstar and use
its best efforts to prevent or promptly remedy the same.
5.06. AFFILIATES; ACCOUNTING AND TAX TREATMENT; STOCK REPURCHASES.
(a) Investors shall cause any person who becomes an Affiliate of Investors after
the date hereof, by virtue of becoming a director or officer of Investors or any
Investors Subsidiary, and shall use its best efforts to cause any other person
who becomes an Affiliate of Investors after the date hereof, and on or prior to
the Closing Date, to deliver to Firstar a written agreement substantially in the
form attached as EXHIBIT 5.06 hereto as soon as practicable after attaining such
status and advise such person of the restrictions imposed by applicable
securities laws upon the resale of Firstar Common Stock delivered in connection
with the Merger. Investors will use its best efforts to cause the Merger to
qualify (i) for pooling-of-interests accounting treatment and (ii) as a
reorganization under Section 368(a)(1) of the Code.
(b) Prior to the Closing, Investors shall use its best efforts to
repurchase Investors Common Stock in amounts sufficient to satisfy reasonably
anticipated future issuances of shares of Investors Common Stock prior to the
Effective Time upon the exercise of Investors Stock Options or pursuant to the
Investors Warrants, which repurchases will be made, and Investors will be
required to make such repurchases only to the extent that they are made, (i) in
compliance with applicable law, (ii) in a manner that will not adversely affect
the ability of the Merger to qualify for such accounting and tax treatment and
(iii) in a manner that will not result in Investors having "tainted" stock for
purposes of pooling-of-interests accounting treatment in connection with the
Merger. As soon as practicable after the date hereof, Investors shall use its
best efforts to obtain any consents necessary to enable it to make such
repurchases of Investors Common Stock. Notwithstanding the foregoing, Investors
shall have no obligation to repurchase Investors Common Stock from and after
such time as Investors has repurchased Investors Common Stock at an aggregate
purchase price equal to or greater than $2.0 million.
5.07. DISSENT PROCESS. Investors will give to Firstar prompt
notice of its receipt of any written notice relating to the exercise of
dissenters' rights granted under Section 262 of the DGCL including the name of
the dissenting stockholder and the number of shares of Investors Preferred Stock
to which the dissent relates. Firstar will have the right to participate in all
negotiations and proceedings with Investors stockholders relating to any such
notice or the exercise
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of such rights, and except as required by law, Investors will not make any
payment with respect to, or settle or offer to settle, any dissent demands
without the prior written consent of Firstar.
5.08. EXPENSES. (a) "Expenses" as used in this Agreement shall
include all reasonable out-of-pocket expenses (including all fees and expenses
of counsel, accountants, investment bankers, experts and consultants to the
party and its affiliates) incurred by a party or on its behalf in connection
with the consummation of the transactions contemplated by this Agreement.
(b) Except as otherwise provided herein, all Expenses incurred by
Firstar (or Sub) and Investors in connection with or related to the
authorization, preparation and execution of this Agreement, the Plan of Merger,
the Bank Merger Agreement, the solicitation of stockholder approval and all
other matters related to the closing of the transactions contemplated hereby,
including, without limitation of the generality of the foregoing, all fees and
expenses of agents, representatives, counsel and accountants employed by either
such party or its affiliates, shall be borne solely and entirely by the party
which has incurred the same, except that the parties shall share equally in the
expense of printing the S-4 and Prospectus/Proxy Statement and the expense of
all SEC and other regulatory filing fees incurred in connection herewith.
5.09. DELIVERY OF STOCKHOLDER LIST. Investors shall arrange to
have its transfer agent deliver to Firstar or its designee, from time to time
prior to the Closing Date, a true and complete list setting forth the names and
addresses of all holders of record of Investors Common Stock and Investors
Preferred Stock, their holdings of such stock as of the latest practicable date,
and such other stockholder information as is reasonably available to Investors
that Firstar may reasonably request.
5.10. AUDITED FINANCIAL STATEMENTS. Investors shall use its best
efforts to cause its independent public accountants to deliver to Firstar, by
February 15, 1995, an audited consolidated financial report of Investors as of
and for the period ended December 31, 1994, and to make available to Firstar and
its independent public accountants for their review the working papers of
Investors' independent public accountants prepared in connection with such audit
prior to and after January 31, 1995.
5.11. BANK-LEVEL TRANSACTIONS. Investors will, and will cause
Investors Subsidiaries to, cooperate with Firstar and Sub in the preparation by
Firstar or Sub of applications to the Federal Reserve Board, the Comptroller,
the OTS and other appropriate regulatory authorities to effect, contingent on
and immediately after consummation of the Merger, the Bank Merger and such other
transactions as are contemplated by SECTION 1.04, including the Conversion.
5.12. SALE OF INVESTMENT SECURITIES. After the receipt of all
necessary regulatory approvals of the Merger and the Bank Merger and prior to
the Effective Time, Investors shall cause its Subsidiaries to sell such
financial instruments in its investment securities portfolio as Firstar may
identify from time to time.
5.13. ACCOUNTING MATTERS. Immediately prior to and on the Closing
Date, after all anticipated loan losses have been charged off, Investors shall
increase its consolidated reserve for losses on loans to no less than an amount
requested by Firstar.
5.14. SERVICING RIGHTS. Prior to the Effective Time, Investors
will not sell any mortgage loan servicing rights, except for a sale of servicing
rights relating to loans having a value up to $150.0 million to be consummated
by September 30, 1994.
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5.15. STOCKHOLDER MEETING. (a) Investors shall call a meeting of
its stockholders for the purpose of voting upon the Merger Agreements and
related matters and deliver notice of such meeting, as part of the
Prospectus/Proxy Statement (as defined in SECTION 7.02(a)), to Investors
stockholders in accordance with applicable law and the Investors Certificate.
Investors shall coordinate and cooperate with Firstar with respect to the timing
of such meeting and shall use its best efforts to hold such meeting as soon as
practicable after the date hereof, but in no event later than the later of (i)
December 31, 1994 and (ii) thirty-five days after the S-4 becomes effective
under the Securities Act. Unless otherwise required by law, Investors shall
not, at such stockholders' meeting, submit any other matter for approval of its
stockholders (except with the prior written consent of Firstar).
(b) Investors will, through its Board of Directors, (i) unanimously
recommend to its stockholders approval of such matters, (ii) not withdraw,
modify or amend such recommendations, and (iii) use its best efforts to obtain
such stockholder approval; provided, however, that nothing contained in this
sentence shall prohibit the Board of Directors of Investors from failing to
recommend such approval or withdrawing, modifying or amending its recommendation
as a result of the receipt of an unsolicited BONA FIDE written proposal to
acquire Investors pursuant to a merger, consolidation, tender offer, share
exchange, business combination, stock or asset purchase or other similar
transaction if (A) the Board of Directors, after consultation with and based
upon receipt of written advice from Dorsey & Whitney (a copy of which Investors
shall promptly deliver to Firstar), or other counsel acceptable to Firstar,
determines in good faith that such action is required for the Board of Directors
to comply with its fiduciary duties to Investors' stockholders under applicable
law and (B) the Board of Directors of Investors has no reason to believe that
the written proposal is not made in good faith. Notwithstanding the foregoing,
to the extent permitted by applicable law, the Board of Directors of Investors
must take such action as is necessary to allow the stockholders of Investors to
vote upon the Merger Agreements in accordance with the DGCL.
5.16. ACQUISITIONS OF REAL ESTATE. During the period prior to the
Effective Time, Investors shall cause each Investors Subsidiary that proposes to
acquire ownership or possession of any real property (other than single family
residential real property), through foreclosure or repossession or otherwise, to
conduct an environmental assessment of such property meeting the requirements
described in SECTION 7.07 and any further environmental investigation, sampling
or analysis reasonably required to ensure that such Investors Subsidiary shall
not acquire ownership or possession of any real property that is reasonably
likely to cause the Investors Subsidiary to be subject to or incur any
liabilities, damages, penalties or removal, remediation or other costs as a
result of its ownership or control of the property that will exceed the value of
the property.
5.17. DEBT REDEMPTION. As soon as practicable on or after January
1, 1995, and in any event prior to the Effective Time, Investors will redeem in
full its 10% Subordinated Debentures due April 1, 1996 without premium in
accordance with the terms of such debentures.
5.18. INVESTORS WARRANTS NOTICES. Prior to the Effective Time,
Investors shall deliver to holders of Investors Warrants any and all notices
required under the Investors Warrant Agreement.
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ARTICLE VI
COVENANTS OF FIRSTAR AND SUB
6.01. AFFIRMATIVE COVENANTS. Firstar hereby covenants and agrees
with Investors that prior to the Effective Time, unless the prior written
consent of Investors shall have been obtained (which consent shall not be
unreasonably withheld) and except as otherwise contemplated herein, it will:
(a) maintain its corporate existence in good standing and maintain
all books and records in accordance with accounting principles and practices as
utilized in the Firstar Financial Statements applied on a consistent basis,
except as may be required to implement changes in generally accepted accounting
principles; and
(b) conduct its business in a manner that does not violate any Law,
except for possible violations which individually or in the aggregate do not,
and, insofar as reasonably can be foreseen, in the future will not, have a
Firstar Material Adverse Effect.
6.02. NEGATIVE COVENANTS. Except as specifically contemplated by
this Agreement, from the date hereof until the Effective Time, Firstar shall not
do, or agree or commit to do, or permit any of its Subsidiaries to do, without
the prior written consent of Investors (which shall not be unreasonably
withheld) any of the following:
(a) propose or adopt any amendments to its corporate charter or
by-laws in any way adverse to Investors; provided, however, that any amendment
to the bylaws of Firstar to increase the size of its Board of Directors shall
not be deemed adverse to Investors and any amendment to the Restated Articles of
Incorporation of Firstar effected solely by action of the Board of Directors of
Firstar shall not be deemed adverse to Investors;
(b) take action which would or is reasonably likely to (i) adversely
affect the ability of either of Firstar or Investors to obtain any necessary
approvals of governmental authorities required for the transactions contemplated
hereby; (ii) adversely affect Firstar's ability to perform its covenants and
agreements under this Agreement; or (iii) result in any of the conditions to the
Merger set forth in ARTICLE VIII not being satisfied; or
(c) agree in writing or otherwise to do any of the foregoing.
6.03. FIRSTAR RIGHTS PLAN. Nothing herein shall be deemed to
prohibit Firstar from (a) redeeming the Firstar Rights or (b) if the Firstar
Rights are so redeemed, entering into a new rights agreement similar to the
Firstar Rights Agreement; provided that, as to this CLAUSE (b), holders of
Investors Common Stock become entitled to any benefits thereof by virtue of the
Merger or the Exchange Ratio is appropriately adjusted.
6.04. BREACHES. Firstar shall, in the event it becomes aware of
the impending or threatened occurrence of any event or condition which would
cause or constitute a material breach (or would have caused or constituted a
breach had such event occurred or been known prior to the date hereof) of any of
its representations or agreements contained or referred to herein or which would
cause any of the conditions to the obligations of any party set forth in ARTICLE
VIII not to be satisfied, give prompt written notice thereof to Investors and
use its best efforts to prevent or promptly remedy the same.
6.05. STOCK EXCHANGE LISTING. Firstar shall use its best efforts
to cause the shares of Firstar Common Stock to be issued in the Merger to be
approved for listing on the New York Stock Exchange ("NYSE"), subject to
official notice of issuance, prior to the Closing Date.
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6.06. FIRSTAR BANK BOARD. Promptly after the Effective Time,
Firstar and Sub shall cause Sub and Firstar Bank to increase the number of
directors on each of its Boards of Directors by one and the vacancy thus created
to be filled by the election of James M. Burkholder.
6.07. SUPPLEMENTAL WARRANT AGREEMENT. Effective as of the
Effective Time, Firstar shall execute a supplemental warrant agreement to the
Investors Warrant Agreement as provided in Section 10(H) of the Investors
Warrant Agreement (the "Supplemental Warrant Agreement").
6.08 SUPPLEMENTAL INDENTURE; REGISTRATION RELATING TO OPTIONS AND
WARRANTS. Effective as of the Effective Time, Sub will execute a Supplemental
Indenture pursuant to Section 801 of the Indenture between Investors and Norwest
Bank Minnesota, N.A., as trustee governing Investors' 9.25% Subordinated Notes
due 2002. Firstar shall take all corporate action necessary to reserve for
issuance a sufficient number of shares of Firstar Common Stock for delivery upon
exercise of the Firstar Warrants and the Firstar Stock Options. Firstar shall
use its best efforts to register the Firstar Common Stock underlying the Firstar
Warrants and the Firstar Common Stock issuable upon exercise of the Firstar
Stock Options under the Securities Act of 1933 as of the Effective Time and to
maintain the effectiveness of such registration statement or registration
statements (and maintain the current status of the prospectus or prospectuses
contained therein) for so long as such Firstar Warrants and Firstar Stock
Options remain outstanding.
6.09. ACCOUNTING AND TAX TREATMENT. Firstar will use its best
efforts to cause the Merger to qualify (i) for pooling-of-interests accounting
treatment and (ii) as a reorganization under Section 368(a)(1) of the Code.
6.10. BANK MERGER AGREEMENT. Within ten days after the date
hereof, Firstar and Sub shall cause the Board of Directors of Firstar Bank to
duly authorize the execution and delivery of the Bank Merger Agreement and the
consummation of the transactions contemplated thereby.
6.11. EXPENSES. Firstar agrees that if this Agreement or the
transactions contemplated hereby are terminated by Investors pursuant to SECTION
10.01(a)(ii), Firstar shall promptly (and in any event within two days after
such termination) pay Investors all Expenses of Investors, but not to exceed
$1.0 million.
ARTICLE VII
ADDITIONAL AGREEMENTS
7.01. FILINGS AND APPROVALS. (a) Each party will use all
reasonable efforts and will cooperate with the other in the preparation and
filing, as soon as practicable, of all applications or other documents required
to obtain regulatory approvals and consents required from the Federal Reserve
Board, the OTS and the Comptroller and from any other applicable regulatory
authorities and provide copies of nonconfidential portions of such applications,
filings and related correspondence to the other parties. Prior to filing each
application, registration statement or other documents with the applicable
regulatory authority, each party will provide the other party with an
opportunity to review and comment on the nonconfidential portions of each such
application, registration statement or other document. Each of Firstar and
Investors shall ensure that none of the information supplied or to be supplied
by it for inclusion or incorporation by reference in any documents to be filed
with the Federal Reserve Board, the OTS, the Comptroller or any other regulatory
agency in connection with the transactions contemplated hereby will, at the
time of
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filing, contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein. Each party will use all reasonable
efforts and will cooperate with the other parties in taking any other actions
necessary to obtain such regulatory or other approvals and consents, including
participating in any required hearings or proceedings. Subject to the terms and
conditions herein provided, each party will use all reasonable efforts to take,
or cause to be taken, all actions and to do, or cause to be done, all things
necessary, proper or advisable to cause the conditions set forth in ARTICLE VIII
to be satisfied and to consummate and make effective as promptly as practicable
the transactions contemplated by this Agreement. Notwithstanding the foregoing,
in the event the Federal Reserve Board, OTS, Comptroller or other regulatory
agency requests information pertaining to Investors or Investors Bank, to the
extent permitted by the agency, Investors shall have the right to submit such
information directly to the regulatory agency making such request, and Investors
shall provide copies of such information to Firstar. Firstar shall keep
Investors advised of all material regulatory developments in a timely manner.
(b) In the event of a restraining order or injunction which prevents
the Closing by reason of the operation of SECTION 8.01(d), Investors, Firstar
and Sub shall use their respective best efforts to cause such order or
injunction to be lifted and the Closing consummated as soon as reasonably
practicable.
7.02. REGISTRATION STATEMENT. (a) For the purposes (i) of
holding a meeting of the stockholders of Investors to approve this Agreement
and the Merger (the "Meeting") and (ii) of registering the Firstar Common Stock
to be issued to holders of Investors Common Stock in connection with the
Merger with the SEC and with applicable state securities authorities, the
parties hereto shall cooperate in the preparation of an appropriate registration
statement (such registration statement, together with all and any amendments
and supplements thereto, being herein referred to as the "S-4"), which shall
include a prospectus/proxy statement satisfying all applicable requirements of
the Securities Act, the Exchange Act, applicable state securities laws and the
rules and regulations thereunder (such prospectus/proxy statement, together with
any and all amendments or supplements thereto, being herein referred to as the
"Prospectus/Proxy Statement").
(b) Firstar shall furnish such information concerning Firstar as is
necessary in order to cause the Prospectus/Proxy Statement, insofar as it
relates to Firstar, to be prepared in accordance with SECTION 7.02(a). Firstar
agrees promptly to advise Investors if any time prior to the Meeting any
information provided by Firstar in the Prospectus/Proxy Statement becomes
incorrect or incomplete in any material respect, and to provide the information
needed to correct such inaccuracy or omission. At the time the S-4 becomes
effective and at the time the Prospectus/Proxy Statement is mailed to the
stockholders of Investors and at all times subsequent to such mailing up to and
including the time of the Meeting, the S-4 and such Prospectus/Proxy Statement
(including any amendments or supplements thereto), with respect to all
information set forth therein relating to Firstar (including the Firstar
Subsidiaries) and the Firstar Common Stock, this Agreement, the Merger and all
other transactions contemplated hereby, will (a) comply in all material respects
with applicable provisions of the Securities Act and the Exchange Act, and (b)
not contain any untrue statement of material fact or omit to state a material
fact required to be stated therein or necessary to make the statements contained
therein, in light of the circumstances under which they are made, not
misleading.
(c) Investors shall furnish Firstar with such information concerning
Investors and the Investors Subsidiaries as is necessary in order to cause the
Prospectus/Proxy Statement, insofar as it relates to Investors and the Investors
Subsidiaries, to be prepared in accordance with SECTION 7.02(a). Investors
agrees promptly to advise Firstar if at any time prior to the Meeting any
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information provided by Investors in the Prospectus/Proxy Statement becomes
incorrect or incomplete in any material respect, and to provide Firstar with the
information needed to correct such inaccuracy or omission. At the time the S-4
becomes effective and at the time the Prospectus/Proxy Statement is mailed to
the stockholders of Investors and at all times subsequent to such mailing up to
and including the time of the Meeting, the S-4 and such Prospectus/Proxy
Statement (including any supplements thereto), with respect to all information
set forth therein relating to Investors (including the Investors Subsidiaries)
and its stockholders, Investors Common Stock, this Agreement, the Merger and all
other transactions contemplated hereby will (a) comply in all material respects
with applicable provisions of the Securities Act and the Exchange Act, and (b)
not contain any untrue statement of material fact or omit to state a material
fact required to be stated therein or necessary to make the statements contained
therein, in light of the circumstances under which they are made, not
misleading.
(d) Firstar shall promptly file the S-4 with the SEC and applicable
state securities agencies. Firstar shall use reasonable efforts to cause the
S-4 to become effective under the Securities Act and applicable state securities
laws at the earliest practicable date. Investors authorizes Firstar to utilize
in the S-4 the information concerning Investors and its Subsidiaries provided to
Firstar for the purpose of inclusion in the Prospectus/Proxy Statement.
Investors shall have the right to review and comment on the form of proxy
statement included in the S-4. Firstar shall advise Investors promptly when the
S-4 has become effective and of any supplements or amendments thereto, and
Firstar shall furnish Investors with copies of all such documents. Prior to the
Effective Time or the termination of this Agreement, each party shall consult
with the other with respect to any material (other than the Prospectus/Proxy
Statement) that might constitute a "prospectus" relating to the Merger within
the meaning of the Securities Act.
7.03. INDEMNIFICATION AND INSURANCE. (a) From and after the
Effective Time, Firstar shall indemnify, defend and hold harmless each person
who is now, or has been at any time to the date hereof or who becomes prior to
the Effective Time, an officer or director of Investors or any of the Investors
Subsidiaries (the "Indemnified Parties") against all losses, claims, damages,
costs, expenses (including reasonable attorneys' fees), liabilities or judgments
or amounts that are paid in settlement (which settlement shall require the
prior written consent of Firstar, which consent shall not be unreasonably
withheld) of or in connection with any claim, action, suit, proceeding or
investigation (a "Claim") in which an Indemnified Party is, or is threatened
to be made, a party or a witness based in whole or in part on or arising in
whole or in part out of the fact that such person is or was a director or
officer of Investors or any of its Subsidiaries if such Claim pertains to any
matter or fact arising, existing or occurring prior to the Effective Time
(including, without limitation, the Merger and other transactions contemplated
by this Agreement), regardless of whether such Claim is asserted or claimed
prior to, at or after the Effective Time (the "Indemnified Liabilities") to
the full extent permitted under applicable Delaware or federal law as of the
date hereof or as amended prior to the Effective Time and under the Investors
Certificate and Investors' bylaws as in effect on the date hereof (and Firstar
shall pay expenses in advance of the final disposition of any such action or
proceeding to each Indemnified Party to the full extent permitted by law and
under the Investors Certificate or such bylaws, upon receipt of any undertaking
contemplated by Section 8.05(a) of the Bylaws of Firstar). Any Indemnified
Party wishing to claim indemnification under this SECTION 7.03(a), upon learning
of any Claim, shall notify Firstar (but the failure to so notify Firstar shall
not relieve Firstar from any liability which Firstar may have under this
SECTION 7.03(a) except to the extent Firstar is prejudiced thereby) and shall
deliver to Firstar any undertaking contemplated by Section 8.05(a) of the bylaws
of Firstar. Notwithstanding the foregoing, the Indemnified Parties as a group
may retain only one law firm to represent them with respect to each matter
under
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this SECTION 7.03(a) unless there is, under applicable standards of professional
conduct, a conflict on any one significant issue between the positions of any
two or more Indemnified Parties. Firstar shall use its best efforts to assure,
to the extent permitted under applicable law, that all limitations of liability
existing in favor of the Indemnified Parties as provided in the Investors
Certificate and Investors' bylaws, as in effect as of the date hereof, with
respect to claims or liabilities arising from facts or events existing or
occurring prior to the Effective Time (including, without limitation, the
transactions contemplated by this Agreement), shall survive the Merger.
The obligations of Firstar described in this SECTION 7.03(a) shall continue in
full force and effect, without any amendment thereto, for a period of not less
than five years from the Effective Time; provided, however, that all rights to
indemnification in respect of any Claim asserted or made within such period
shall continue until the final disposition of such Claim. Nothing in this
SECTION 7.03(a) shall affect the obligations to be assumed in the Merger by
Firstar to indemnify former directors and officers of Investors or Investors
Bank pursuant to the terms of the indemnification agreements in effect as of
the date hereof and as disclosed to Firstar in the Investors Disclosure Letter.
(b) From and after the Effective Time, the directors, officers, and
employees of Investors and the Investors Subsidiaries who become directors,
officers or employees of Firstar or any of its Subsidiaries, except for the
indemnification rights set forth in SECTION 7.03(a), shall have indemnification
rights with prospective application only. The prospective indemnification
rights shall consist of such rights to which directors, officers and employees
of Firstar are entitled under the provisions of the Restated Articles of
Incorporation of Firstar or similar governing documents of Firstar and its
Subsidiaries, as in effect from time to time after the Effective Time, as
applicable, and provisions of applicable law as in effect from time to time
after the Effective Date.
(c) The obligations of Firstar provided under SECTIONS 7.03(a) are
intended to benefit, and be enforceable against Firstar directly by, the
Indemnified Parties, and shall be binding on all respective successors of
Firstar.
(d) For three years from and after the Effective Time, Firstar will
maintain or cause Sub to maintain Investors' current insurance policy for
directors' and officers' liabilities or an equivalent policy having terms and
conditions no less favorable to all present and former directors and officers of
Investors and the Investors Subsidiaries who are covered by such current
insurance policy than those in effect for such persons on the date of this
Agreement; provided, however, that (i) Firstar's obligation under this
SUBSECTION (d) shall be satisfied as to any year at such time as Firstar and/or
Sub shall have incurred annual costs to maintain insurance in accordance with
this subsection equal to 150% of the annual premium charge heretofore paid by
Investors and (ii) such directors and officers may be required to make
application and provide customary representations and warranties to Firstar's
insurance carrier for the purpose of obtaining such coverage.
7.04. REPORTS. (a) Prior to the Effective Time, (i) Investors
shall prepare and file as and when required all Investors Reports and
(ii) Firstar shall prepare and file as and when required all Firstar Reports.
(b) Investors and Firstar shall prepare such Investors Reports and
Firstar Reports, respectively, such that (i) they comply in all material
respects with all of the statutes, rules and regulations enforced or promulgated
by the regulatory authority with which they are filed and do not contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements therein, in light
of the circumstances
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under which they were made, not misleading, and (ii) with respect to any
Investors Reports or Firstar Reports containing financial information of the
type included in the Investors Financial Statements or the Firstar Financial
Statements, respectively, the financial information (A) is prepared in
accordance with generally accepted accounting principles as utilized in the
Investors Financial Statements or the Firstar Financial Statements, as the case
may be, applied on a consistent basis (except as stated therein or in the notes
thereto), (B) presents fairly the consolidated financial condition of Investors
or Firstar, as the case may be, at the dates, and the consolidated results of
operations and cash flows for the periods, stated therein and (C) in the case of
interim fiscal periods, reflects all adjustments, consisting only of normal
recurring items, subject to year-end audit adjustments.
7.05. BROKERS OR FINDERS. Each of Firstar and Investors
represents, as to itself, its Subsidiaries and its affiliates, that no agent,
broker, investment banker, financial advisor or other firm or person is or will
be entitled to any broker's or finder's fee or any other commission or similar
fee in connection with any of the transactions contemplated by this Agreement,
except Piper Jaffray Inc., whose fees and expenses will be paid by Investors in
accordance with Investors' agreement with such firm (a copy of which has been
delivered by Investors to Firstar prior to the date of this Agreement), and each
of Firstar and Investors respectively agree to indemnify and hold the other
harmless from and against any and all claims, liabilities or obligations with
respect to any other fees, commissions or expenses asserted by any person on the
basis of any act or statement alleged to have been made by such party or its
affiliate. Investors represents that neither it nor its Subsidiaries has paid
or agreed to pay any fee to its legal counsel, Dorsey & Whitney, or its
certified public accountants, KPMG Peat Marwick, other than on the basis set
forth in SECTION 5.03(n) in connection with the transactions contemplated by
this Agreement.
7.06. ADDITIONAL AGREEMENTS; REASONABLE EFFORTS. Subject to the
terms and conditions of this Agreement, each of the parties hereto agrees to use
all reasonable efforts to take, or cause to be taken, all action and to do, or
cause to be done, all things necessary, proper or advisable under applicable
laws and regulations to consummate and make effective the transactions
contemplated by this Agreement and the Bank Merger Agreement, subject to the
appropriate vote of stockholders of Investors described in SECTION 8.01(a),
including cooperating fully with the other party. In case at any time after the
Effective Time any further action is reasonably necessary or desirable to carry
out the purposes of this Agreement or to vest Sub with full title to all
properties, assets, rights, approvals, immunities and franchises of either of
Sub or Investors, the proper officers and directors of each party to this
Agreement shall take all such necessary action.
7.07. ENVIRONMENTAL AUDITS. Firstar shall engage, at Investors'
expense, an environmental consulting engineering firm, reasonably acceptable to
Investors, to perform environmental site assessments of parcels of the Investors
Property comprising all operating facilities of Investors and the Investors
Subsidiaries (whether owned or leased) or otherwise carried on the books of
Investors or any Investors Subsidiary (other than single family residential real
property) including, but not limited to, "real estate owned" properties of
Investors or any Investors Subsidiary (collectively, the "Audited Properties")
which shall satisfy the American Society of Testing and Materials "Standard
Practice for Environmental Site Assessments: Phase I Environmental Site
Assessment Process" (ASTM Designation: E-1527-93) (the "Environmental Audits")
and render reports of the Environmental Audits (the "Environmental Reports") to
determine, to Firstar's satisfaction, whether there are any indications or
evidence that (i) any Toxic Substance has been stored, deposited, treated,
recycled, used or accidentally or intentionally disposed of, discharged,
spilled, released, dumped, emitted or otherwise placed on, under or at, or used
in any construction on, any such Audited Property, (ii) any such Audited
Property is contaminated by or contains any Toxic Substance or (iii) any
violations of Environmental Laws
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have occurred or are likely to occur on any Audited Property. The scope of the
Environmental Audits shall include any testing or sampling of materials to
determine, to Firstar's satisfaction, whether any cleanup, removal, remedial
action or other response is required to bring the Audited Properties into
material compliance with Environmental Laws or to eliminate any condition that
could result in a material liability as a result of the ownership, lease,
operation or use of any Audited Property and the estimated cost of such cleanup,
removal, remedial action or other response. Firstar will use reasonable efforts
to engage an environmental consulting engineering firm within 10 days of the
date hereof and Firstar and Investors will use reasonable efforts to cause the
Environmental Audits to be completed within 45 days of the date hereof. Nothing
contained in the Environmental Reports shall diminish or expand Investors'
obligations with respect to the representations and warranties in SECTION 3.07
or affect the consequences of any such representation or warranty proving to
have been untrue, incomplete or misleading in any respect. Notwithstanding the
foregoing, (i) if this Agreement and the transactions contemplated hereby are
terminated, then Firstar shall reimburse Investors for expenses incurred
pursuant to this SECTION 7.07 and (ii) this SECTION 7.07 shall not apply to the
Investor Properties identified on EXHIBIT 7.07.
7.08. FIRSTAR BENEFIT PLANS. On or before the first January 1
that is at least 90 days after the Effective Time, Firstar shall provide to
retained employees of Investors or of any Investors Subsidiary all
corporate-wide employee retirement, health, dental, life and long-term
disability benefits that Firstar and its subsidiaries provide to their similarly
situated employees, subject to the age and eligibility requirements for such
benefits. Each such employee's last continuous period of service prior to the
Effective Time with Investors or any Investors Subsidiary shall count for
purposes of determining eligibility and vesting (but not benefit amounts) for
all such benefits. If such coverage under the Firstar benefits is not provided
immediately after the Effective Time, Firstar shall continue the Investors'
plans until the comparable coverage is effective under Firstar's plans so that
no lapse in benefit occurs. Without limiting the generality of the foregoing,
no preexisting condition limits shall be applied to participants in Investors
Benefit Plans upon their eligibility for such Firstar benefits (except for
continuation of any such limits that were in effect under the respective
Investors Benefit Plans).
ARTICLE VIII
CONDITIONS PRECEDENT
8.01. CONDITIONS TO EACH PARTY'S OBLIGATION TO EFFECT THE MERGER.
The respective obligations of each party to effect the Merger shall be subject
to the satisfaction prior to the Closing Date of the following conditions:
(a) CORPORATE APPROVAL. The Merger Agreements shall have been
approved and adopted by the requisite vote of the holders of the outstanding
shares of Investors Common Stock.
(b) REGULATORY APPROVALS. The Merger Agreements and the transactions
contemplated hereby and either the Bank Merger Agreement and the transactions
contemplated thereby or the acquisition of all of Investors Bank's assets by two
DE NOVO national banking associations to be chartered by Sub shall have been
approved by the Federal Reserve Board, the Comptroller and the OTS without any
condition not reasonably satisfactory to Firstar, all conditions required to be
satisfied prior to the Effective Time imposed by the terms of such approvals
shall have been satisfied and all waiting periods relating to such approvals
shall have expired.
(c) S-4; SECURITIES LAWS. The S-4 shall have become effective under
the Securities Act and shall not be the subject of any stop order or proceedings
seeking a stop order.
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Firstar shall have received all state securities or "blue sky" permits,
exemptions or permits under applicable takeover laws and other authorizations
necessary to issue the Firstar Common Stock in exchange for the Investors Common
Stock and to consummate the Merger.
(d) NO INJUNCTIONS OR RESTRAINTS. No temporary restraining order,
preliminary or permanent injunction or other order issued by any court of
competent jurisdiction or other legal restraint or prohibition (an "Injunction")
preventing the consummation of the Merger shall be in effect.
(e) LISTING OF FIRSTAR COMMON STOCK. The Firstar Common Stock
issuable in the Merger shall have been authorized for listing on the New York
Stock Exchange, upon official notice of issuance.
(f) TAX OPINION. An opinion of Foley & Lardner, to the effect that
the Merger will be treated for federal income tax purposes as a reorganization
within the meaning of Section 368(a) of the Code, and that Firstar, Sub and
Investors will each be a party to that reorganization within the meaning of
Section 368(b) of the Code, dated on or about the date that is two business days
prior to the date the Prospectus/Proxy Statement is first mailed to stockholders
of Investors, shall have been delivered to Investors and to Firstar and shall
not have been withdrawn or modified in any material respect.
(g) FAIRNESS OPINION. Investors shall have received, in form
reasonably satisfactory to Investors, an opinion of Piper Jaffray, Inc., dated
as of the date of the Prospectus/Proxy Statement, substantially to the effect
that the consideration to be received in the Merger by Investors' stockholders
is fair to such stockholders from a financial point of view, which opinion may
be included in the Prospectus/Proxy Statement. Notwithstanding the foregoing,
this condition shall be deemed waived if the Prospectus/Proxy Statement is
mailed to Investors' stockholders without such opinion.
8.02. CONDITIONS OF OBLIGATIONS OF FIRSTAR AND SUB. The
obligations of Firstar and Sub to effect the Merger are subject to the
satisfaction of the following conditions unless waived in writing by Firstar and
Sub:
(a) REPRESENTATIONS AND WARRANTIES. (i) Each of the representations
and warranties of Investors set forth in this Agreement, without giving effect
to any update to the Investors Disclosure Letter or notice to Firstar under
SECTION 5.05, shall be true and correct in all material respects as of the date
of this Agreement, (ii) in the aggregate, such representations and warranties,
without giving effect to any update to the Investors Disclosure Letter or notice
to Firstar under SECTION 5.05, shall be true and correct in all material
respects as of the Closing Date as though made on and as of the Closing Date
(except to the extent such representations and warranties speak as of an earlier
date), except for changes expressly contemplated by this Agreement, and (iii)
Firstar and Sub shall have received a certificate signed on behalf of Investors
by the chief executive officer and by the chief financial officer of Investors
to such effect.
(b) PERFORMANCE OF OBLIGATIONS OF INVESTORS. Investors shall have
performed in all material respects each of the obligations required to be
performed by it under this Agreement, the Plan of Merger and the Bank Merger
Agreement at or prior to the Closing Date, and Firstar and Sub shall have
received a certificate signed on behalf of Investors by the chief executive
officer and by the chief financial officer of Investors to such effect.
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(c) CONSENTS UNDER AGREEMENTS. Investors shall have obtained the
consent or approval of each person whose consent or approval shall be required
in order to permit the succession by Sub pursuant to the Merger to any
obligation, right or interest of Investors or any Investors Subsidiary under any
loan or credit agreement, note, mortgage, indenture, lease or other agreement or
instrument, except those for which failure to obtain such consents and approvals
would not, individually or in the aggregate, have an Investors Material Adverse
Effect, whether prior to or following the consummation of the transactions
contemplated hereby.
(d) POOLING OPINIONS. Firstar shall have received an opinion from
KPMG Peat Marwick, as independent public accountants of Firstar, and an opinion
from KPMG Peat Marwick, as independent public accountants of Investors, to the
effect that the Merger qualifies for pooling-of-interests accounting treatment
if consummated in accordance with the Merger Agreements.
(e) NO AMENDMENTS TO RESOLUTIONS. Neither the Board of Directors of
Investors nor any committee thereof shall have (i) amended, modified, rescinded
or repealed the resolutions adopted by the Board of Directors of Investors at a
meeting duly called and held on August 21, 1994 (accurate and complete copies of
which have been provided to Firstar) in any manner that adversely affects
Firstar or (ii) adopted any other resolutions in connection with this Agreement
and the transactions contemplated hereby inconsistent with such resolutions in
any manner that adversely affects Firstar.
(f) NO MATERIAL ADVERSE CHANGE. There shall have been no material
adverse change since the date of this Agreement in the business, operations,
prospects or financial condition of Investors and the Investors Subsidiaries
taken as a whole, other than any changes resulting primarily by reason of
changes in savings institution laws or regulations (or interpretations thereof),
changes in the general level of interest rates or changes in economic, financial
or market conditions affecting the savings institution industry generally in the
regions in which Investors and the Investors Subsidiaries operate, and Firstar
and Sub shall have received a certificate signed on behalf of Investors by the
chief executive officer and by the chief financial officer of Investors to such
effect.
(g) NO PROCEEDING OR LITIGATION. No material action, suit or
proceeding before any court or any governmental or regulatory authority shall be
pending against Firstar, Investors or any affiliate, associate, officer or
director of either of them (other than litigation commenced by Firstar or any of
its affiliates so long as no order or injunction of a court of competent
jurisdiction is in effect in such litigation on the Closing Date that does
restrain, enjoin or prevent the Closing), seeking to restrain, enjoin, prevent,
change or rescind the transactions contemplated hereby or questioning the
validity or legality of any such transactions.
(i) ACCOUNTANT'S REVIEW LETTERS. Firstar shall have received the
letters described in SECTION 5.03 regarding the financial statements of
Investors.
(j) OPINION OF COUNSEL. Investors shall have delivered to Firstar an
opinion of its counsel, Dorsey & Whitney, dated as of the Closing Date and in
form and substance satisfactory to the counsel of Firstar, to the effect that:
(i) Investors is a corporation validly existing and in good standing under the
laws of its jurisdiction of incorporation with full corporate power and
authority to enter into this Agreement and the Plan of Merger and to consummate
the transactions contemplated thereby; (ii) Investors is registered as a savings
and loan holding company under the SLHC Act; (iii) Investors Bank is a federally
chartered savings bank duly organized, validly existing and in good standing
under the laws of the United States; (iv) Investors
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has the corporate power to consummate the transactions on its part contemplated
by this Agreement; (v) Investors Bank has the corporate power to consummate the
transactions on its part contemplated by the Bank Merger Agreement; (vi) this
Agreement and the Plan of Merger have been duly and validly authorized, executed
and delivered on behalf of Investors and constitute (subject to standard
exceptions to enforceability arising from the bankruptcy laws and rules of
equity and to claims relating to conformance with fiduciary obligations) valid
and binding agreements of Investors; (vii) the Bank Merger Agreement has been
duly and validly authorized, executed and delivered on behalf of Investors Bank
and constitutes (subject to standard exceptions to enforceability arising from
the bankruptcy laws and rules of equity) a valid and binding agreement of
Investors Bank; (viii) the execution of the Articles of Merger and Certificate
of Merger by Investors has been duly and validly authorized; (ix) neither the
execution and delivery of this Agreement and the Plan of Merger by Investors and
the consummation of the transactions contemplated hereby, nor the execution and
delivery of the Bank Merger Agreement by Investors Bank and the consummation of
the transactions contemplated thereby, result in a Violation pursuant to any
provision of the Investors Certificate, the by-laws of Investors, the charter,
certificate or articles of incorporation or by-laws of any Investors Subsidiary,
the DGCL, to the knowledge of such counsel, any agreement included in a
certificate delivered to such counsel and Firstar by the chief executive officer
and the chief financial officer of Investors setting forth all agreements to
which Investors or any Investors Subsidiary is a party that are material to
Investors and its Subsidiaries taken as a whole; and (x) in the course of the
preparation of the S-4 and the Prospectus/Proxy Statement such counsel has
considered the information set forth therein relating to Investors in light of
the matters required to be set forth therein, and has participated in
conferences with officers and representatives of Investors and Firstar,
including their respective counsel and independent public accountants, during
the course of which the contents of the S-4 and the Prospectus/Proxy Statement
and related matters relating to Investors were discussed. Such counsel has not
independently checked the accuracy or completeness of, or otherwise verified,
and accordingly is not passing upon, and does not assume responsibility for,
the accuracy, completeness or fairness of the statements contained in the S-4 or
the Prospectus/Proxy Statement; and such counsel has relied as to materiality,
to a large extent, upon the judgment of officers and representative of Investors
and Firstar. However, as a result of such consideration and participation,
nothing has come to such counsel's attention which causes such counsel to
believe that the S-4 (other than the financial statements, financial data,
statistical data and supporting schedules included therein, and information
relating to or supplied by Firstar as to which such counsel expresses no
belief), at the time it became effective, contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or that the
Prospectus/Proxy Statement (other than the financial statements, financial data,
statistical data and supporting schedules included therein, and information
relating to or supplied by Firstar, as to which such counsel expresses no
belief), at the time the S-4 became effective, included any untrue statement of
a material fact or omitted to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading.
(l) RESERVE FOR LOSSES ON LOANS. As of and on the Closing Date,
Investors' consolidated reserve for losses on loans after all anticipated loan
losses have been charged off shall not be less an amount requested by Firstar.
8.03. CONDITIONS OF OBLIGATIONS OF INVESTORS. The obligation of
Investors to effect the Merger is subject to the satisfaction of the following
conditions unless waived by Investors:
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(a) REPRESENTATIONS AND WARRANTIES. (i) Each of the representations
and warranties of Firstar and Sub set forth in this Agreement, without giving
effect to any notice to Investors pursuant to SECTION 6.04, shall be true and
correct in all material respects as of the date of this Agreement, (ii) in the
aggregate, such representations and warranties, without giving effect to any
update to the Firstar Disclosure Letter or notice to Investors under SECTION
6.04, shall be true and correct in all material respects as of the Closing Date
as though made on and as of the Closing Date (except to the extent such
representations speak as of an earlier date) except for changes expressly
contemplated by this Agreement, and (iii) Investors shall have received a
certificate signed on behalf of Firstar by the Chief Executive Officer and by
the chief financial officer of Firstar to such effect.
(b) PERFORMANCE OF OBLIGATIONS OF FIRSTAR AND SUB. Firstar and Sub
shall have performed in all material respects each of the obligations required
to be performed by them under this Agreement and the Plan of Merger at or prior
to the Closing Date, and Investors shall have received a certificate signed on
behalf of Firstar by the Chief Executive Officer and by the chief financial
officer of Firstar to such effect.
(c) CONSENTS UNDER AGREEMENTS. Firstar shall have obtained the
consent or approval of each person (other than the Federal Reserve Board) whose
consent or approval shall be required in connection with the transactions
contemplated hereby under any loan or credit agreement, note, mortgage,
indenture, lease or other agreement or instrument, except those for which
failure to obtain such consents and approvals would not, in the reasonable
opinion of Investors, individually or in the aggregate, have a Firstar Material
Adverse Effect or upon the consummation of the transactions contemplated hereby.
(d) NO AMENDMENTS TO RESOLUTIONS. Neither the Board of Directors of
Firstar nor any committee thereof shall have amended, modified, rescinded or
repealed the resolutions adopted by the Board of Directors of Firstar at a
meeting duly called and held on July 21, 1994 and shall not have adopted any
other resolutions in connection with this Agreement and the transactions
contemplated hereby inconsistent with such resolutions.
(e) OPINION OF COUNSEL. Firstar shall have delivered to Investors an
opinion of Howard H. Hopwood III, Senior Vice President and General Counsel of
Firstar, dated as of the Closing Date and in form and substance reasonably
satisfactory to the counsel of Investors, to the effect that: (i) each of
Firstar and Sub is a corporation validly existing under the laws of its
jurisdiction of incorporation with full corporate power and authority to enter
into this Agreement and the Plan of Merger and to consummate the transactions
contemplated thereby; (ii) all corporate proceedings on the part of Firstar and
Sub necessary to be taken in connection with the Merger and (except for the
filing of the Articles of Merger and Certificate of Merger) necessary to make
same effective have been duly and validly taken; (iii) this Agreement has been
duly and validly authorized, executed and delivered on behalf of Firstar and
constitutes (subject to standard exceptions to enforceability arising from the
bankruptcy laws and rules of equity) a valid and binding agreement of Firstar;
(iv) the execution of the Articles of Merger and Certificate of Merger by
Firstar and Sub has been duly and validly authorized; (v) the shares of Firstar
Common Stock to be issued in the Merger will, when issued, be duly authorized,
validly issued, fully paid and non-assessable (except as provided in Section
180.0622(2)(b) of the WBCL); and (vi) in the course of the preparation of the
S-4 and the Prospectus/Proxy Statement such counsel has considered the
information set forth therein relating to Firstar in light of the matters
required to be set forth therein, and has participated in conferences with
officers and representatives of Investors and Firstar, including their
respective counsel and independent public accountants, during the course of
which the contents of the S-4 and the Prospectus/Proxy Statement and related
matters
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relating to Firstar were discussed. Such counsel has not independently checked
the accuracy or completeness of, or otherwise verified, and accordingly is not
passing upon, and does not assume responsibility for, the accuracy, completeness
or fairness of the statements contained in the S-4 or the Prospectus/Proxy
Statement; and such counsel has relied as to materiality, to a large extent,
upon the judgment of officers and representative of Investors and Firstar.
However, as a result of such consideration and participation, nothing has come
to such counsel's attention which causes such counsel to believe that the S-4
(other than the financial statements, financial data, statistical data and
supporting schedules included therein, and information relating to or supplied
by Investors as to which such counsel expresses no belief), at the time it
became effective, contained any untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus/Proxy Statement (other
than the financial statements, financial data, statistical data and supporting
schedules included therein, and information relating to or supplied by
Investors, as to which such counsel expresses no belief), at the time the S-4
became effective, included any untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(f) NO MATERIAL ADVERSE CHANGE. There shall have been no material
adverse change since the date of this Agreement in the business, operations,
prospects or financial condition of Firstar and the Firstar Subsidiaries taken
as a whole, other than any changes resulting primarily by reason of changes in
banking laws or regulations (or interpretations thereof), changes in the general
level of interest rates or changes in economic, financial or market conditions
affecting the banking industry generally in the regions in which Firstar and the
Firstar Subsidiaries operate, and Investors shall have received a certificate
signed on behalf of Firstar by the Chief Executive Officer and by the chief
financial officer of Firstar to such effect.
(g) NO PROCEEDING OR LITIGATION. No material action, suit or
proceeding before any court or any governmental or regulatory authority shall be
pending against any officer or director of Investors (other than litigation
commenced by Investors or any of its affiliates so long as no order or
injunction of a court of competent jurisdiction is in effect in such litigation
on the Closing Date that does restrain, enjoin or prevent the Closing), seeking
to restrain, enjoin, prevent, change or rescind the transactions contemplated
hereby or questioning the validity or legality of any such transactions, where
such action, suit or proceeding is reasonably likely to result in material
personal liability to such officer(s) or director(s) (other than liability
reasonably likely to be covered by indemnification and/or insurance).
ARTICLE IX
INDUCEMENT
9.01. INDUCEMENT. (a) Subject to SUBSECTION (d), as a condition
and inducement to Firstar's willingness to enter into and perform this
Agreement, in the event that a Trigger Event (as hereinafter defined) has
occurred, then Investors shall pay to Firstar a fee of $4,500,000 (the
"Termination Fee"). Such fee shall be payable in immediately available funds
within two days following the occurrence of a Trigger Event.
(b) As used herein, "Trigger Event" shall mean the occurrence of one
or more of the following events:
(i) A Transaction Proposal (as defined below) shall have
occurred;
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(ii) Termination of this Agreement following a wilful and
material breach thereof by Investors;
(iii) (A) The Board of Directors of Investors (1) shall have
withdrawn, modified or amended in any respect its approval or
recommendation of this Agreement or the transactions contemplated thereby,
or (2) shall not at the appropriate time have recommended or shall have
withdrawn, modified or amended in any respect its recommendation that its
stockholders vote in favor of this Agreement, or (3) shall not have
included such recommendation in the Prospectus/Proxy Statement, or (B) the
Board of Directors of Investors shall have resolved to do any of the
foregoing; or
(iv) The condition described in SECTION 8.01(g) shall not have
been satisfied and Investors' stockholders shall have failed to approve
this Agreement at a meeting duly called and held.
(c) As used in this Agreement, "Person" shall mean any individual,
firm, corporation, or other entity and shall include any syndicate or group of
persons deemed to be a "person" by Section 13(d)(3)(e) of the Exchange Act. As
used in this Agreement, "Transaction Proposal" shall mean (A) a BONA FIDE tender
offer or exchange offer for at least 15% of the then outstanding shares of any
class of voting capital stock of Investors shall have been made by any Person
(excluding Firstar or any of its Subsidiaries or Affiliates), (B) a merger,
consolidation or other business combination with Investors or with Investors
Bank shall have been effected by any Person, or an agreement relating to any
such transaction shall have been entered into, (C) any sale, lease, exchange,
mortgage, pledge, transfer or other disposition (whether in one transaction or a
series of related transactions) involving a substantial part of Investors'
consolidated assets (including stock of Investors Bank), or all or a substantial
part of the assets of Investors Bank, to any Person shall have been effected, or
any agreement relating to such transaction shall have been entered into, (D) the
acquisition by any Person, other than (1) Firstar or any Subsidiary or Affiliate
of Firstar (other than in a fiduciary capacity) or (2) any of Investors'
Subsidiaries in a fiduciary capacity for third parties, of beneficial ownership
(within the meaning of Rule 13d-3 under the Exchange Act, which will be deemed
for purposes hereof to provide that such Person beneficially owns any shares of
the capital stock of Investors that may be acquired by such person pursuant to
any right, option, warrant or other agreement, regardless of when such
acquisition would be permitted by the terms thereof) of 15% or more of the
outstanding shares of any class of the voting capital stock of Investors
(including capital stock currently beneficially owned by such Person) or, if
such Person currently beneficially owns 15% or more of the outstanding shares of
any class of voting capital stock of Investors, of any additional shares of the
voting capital stock of Investors (other than pursuant to such Person's rights
and obligations as of the date hereof under Investors Options and/or Investors
Warrants), (E) any reclassification of securities or recapitalization of
Investors or other transaction that has the effect, directly or indirectly, of
increasing the proportionate share of any class of equity security (including
securities convertible into equity securities) of Investors which is owned by
any Person (excluding Firstar or any of its Subsidiaries or Affiliates) shall
have been effected, or any agreement relating to such transaction shall have
been entered into or plan with respect thereto adopted, (F) any transaction
having an effect similar to those described in (A) through (E) above, or (G) a
public announcement with respect to a proposal, plan or intention by Investors
or another Person (excluding Firstar or any of its Subsidiaries or Affiliates)
to effect any of the foregoing transactions (which may include publication of
notice of the filing of an application under the BHC Act, the HOLA, the SLHC
Act, the FDI Act or the Change in Bank Control Act, as amended); PROVIDED,
HOWEVER, that in the case of the events described in CLAUSES (A) AND (G) in this
definition, and events described in CLAUSE (F)
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having an effect similar to those described in CLAUSE (A) (the "Events"), such
Events shall not constitute a "Transaction Proposal" hereunder unless after the
occurrence of any such Event, either (x) the Board of Directors of Investors (1)
recommends such Event to its stockholders for acceptance or (2) fails to
undertake such acts as Firstar reasonably requests to oppose such Event
(provided that Investors not incur significant legal expense); or (y) Investors'
stockholders shall have failed to approve this Agreement at a meeting duly
called for such purpose.
(d) The rights of Firstar under this SECTION 9.01 shall terminate
upon the earliest to occur of (1) the Effective Time, (2) the termination of
this Agreement by Investors pursuant to SECTION 10.01(a)(ii), (3) the
termination of this Agreement by mutual agreement of the parties, (4) the
expiration of six months after the termination of this Agreement pursuant to
SECTION 10.01(a)(iv), (5) the termination of this Agreement pursuant to SECTION
10.01(a)(iii), SECTION 10.01(a)(v) or SECTION 10.01(a)(vii), (6) the expiration
of six months after the termination of this Agreement pursuant to SECTION
10.01(a)(vi) other than such a termination where nonapproval by stockholders of
Investors was preceded by a Transaction Proposal, (7) the expiration of one year
after the termination of this Agreement (other than terminations described in
CLAUSES (2) - (6)), or (8) the irrevocable payment of a Termination Fee to
Firstar.
ARTICLE X
TERMINATION AND AMENDMENT
10.01. TERMINATION. (a) This Agreement and the Plan of Merger may
be terminated at any time prior to the Effective Time, whether before or after
approval of the matters presented in connection with the Merger by the
stockholders of Investors:
(i) by mutual consent of the Board of Directors of Firstar and the
Board of Directors of Investors;
(ii) by either Firstar or Investors (A) if there has been a breach in
any material respect of any representation, warranty, covenant or agreement
on the part of Investors, on the one hand, or Firstar and Sub, on the other
hand, respectively, set forth in this Agreement, or (B) if the
representations and warranties of Investors, on the one hand, or Firstar
and Sub, on the other hand, respectively, shall be discovered to have
become materially untrue in the aggregate, in either case which breach or
other condition has not been cured within 10 business days following
receipt by the nonterminating party of notice of such breach or other
condition;
(iii) by either Firstar or Investors if any permanent Injunction
preventing the consummation of the Merger shall have become final and
nonappealable;
(iv) by either the Board of Directors of Firstar or the Board of
Directors of Investors if the Merger shall not have been consummated before
August 15, 1995, for a reason other than the failure of the terminating
party to comply with its obligations under this Agreement;
(v) by the Board of Directors of either of Firstar or Investors if
the Federal Reserve Board, the Comptroller or the OTS has denied approval
of the Merger or the Bank Merger and neither Firstar nor Investors has,
within 30 days after the entry of the order denying such approval, filed a
petition seeking review of such order as provided by applicable law;
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(vi) by either Investors or Firstar, if this Agreement and the Merger
are not duly approved by the stockholders of Investors after a vote thereon
at a meeting of stockholders (or any adjournment thereof) duly called and
held for such purpose;
(vii) by Investors, on either of the two trading days immediately
after the Ten-Day Calculation Period, as defined below, if both of the
following conditions are satisfied:
(1) the average of the daily closing prices of a share of
Firstar Common Stock as reported on the consolidated tape of the NYSE
during the Ten-Day Calculation Period (the "Firstar Average Price") is
less than $29.00; and
(2) the number obtained by dividing the Firstar Average Price by
the closing price of Firstar Common Stock as reported on the
consolidated tape of the NYSE on the trading day immediately preceding
the public announcement of this Agreement is less than the number
obtaining by dividing the Final Index Price (as defined in SUBSECTION
(b) below) by the Initial Index Price (as defined in SUBSECTION (b)
below) and subtracting .125 from such quotient;
(viii) by Investors, if (1) any Person (other than Firstar or any
affiliate of Firstar) shall have commenced (as such term is used in Rule
14d-2(b) under the Exchange Act) a BONA FIDE tender offer for all
outstanding shares of Investors Common Stock or any Person shall have made
a BONA FIDE written offer involving a merger or consolidation of Investors
or the acquisition of all or substantially all of its assets, (2)
Investors' Board of Directors shall determine, based on advice of
Investors' independent financial advisors, that such offer is a material
economic improvement to Investors' stockholders when compared to the
Merger, (3) Investors' Board of Directors, after consultation with and
based upon receipt of written advice from Dorsey & Whitney (a copy of which
Investors shall promptly deliver to Firstar), or other counsel acceptable
to Firstar, determines in good faith that recommending such tender offer or
accepting such written offer is required for the Board of Directors to
comply with its fiduciary duties to Investors' stockholders under
applicable law, and (4) Investors or the Person commencing such tender
offer or submitting such written offer shall have irrevocably paid the
Termination Fee to Firstar; provided, however, that Investors may not
terminate the Agreement pursuant to this SECTION 10.01(a)(viii) until the
expiration of five business days after written notice of any such offer
referenced in this SECTION 10.01(a)(viii) has been delivered to Firstar,
together with a summary of the terms of any such offer;
(ix) without further action of either party hereto, upon the
irrevocable payment to Firstar of the Termination Fee following the
occurrence of a Trigger Event, unless (A) prior to the Trigger Event there
has been a wilful and material breach of this Agreement by Investors other
than a breach resulting from an Excused Action (as defined below), or (B)
such Trigger Event is the occurrence of a Transaction Proposal caused by an
action or inaction by Investors that is a wilful breach of any covenant in
this Agreement, except an Excused Action, or (C) such Trigger Event is an
action or inaction by Investors described in SECTION 9.01(b)(iii) or (iv)
that is not the result of an action that the Board of Directors of
Investors, after consultation with counsel, determines in good faith is
required to comply with its fiduciary duties to stockholders under
applicable law. For purposes of this SECTION 10.01(a)(ix), "Excused
Action" shall mean any action, or the failure to act, by Investors where
the Board of Directors of Investors, after consultation with and based on
the written advice of counsel (a copy of which is furnished to Firstar),
determines in good faith that such actions or inactions are required by
the Board of Directors of Investors to
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comply with its fiduciary duties to Investors' stockholders under
applicable law to facilitate a Transaction Proposal or a Competing
Transaction with a party other than Investors or any of its
Representatives; or
(x) by Firstar, if, after the date hereof, any Person shall have
commenced (as such term is used in Rule 14d-2(b) under the Exchange Act) a
BONA FIDE tender offer or exchange offer to acquire at least 20% of the
then outstanding shares of Investors Common Stock, or if the Board of
Directors of Investors shall have withdrawn, modified or changed its
recommendation of this Agreement or the Merger.
(b) For purposes of this SECTION 10.01:
(i) The "Index Group" shall mean all of those companies
listed on EXHIBIT 10.01 the common stock of which is publicly
traded and as to which there is no pending publicly announced
proposal at any time during the Ten-Day Calculation Period for
such company to acquire another company or companies in
transactions with a value exceeding 10% of the acquiror's market
capitalization or for such company to be acquired. In the event
that any such company or companies are so removed from the Index
Group, the weights attributed to the remaining companies shall be
adjusted proportionately.
(ii) The "Initial Index Price" shall mean the weighted
average (weighted in accordance with the factors listed on
EXHIBIT 10.01) of the per share closing prices of the common
stock of the companies comprising the Index Group, as reported on
the consolidated transactions reporting system for the market or
exchange on which such common stock is principally traded, on the
trading day immediately preceding the public announcement of this
Agreement.
(iii) The "Final Price" of any company belonging to the
Index Group shall mean the average of the daily closing sale
prices of a share of common stock of such company, as reported in
the consolidated transaction reporting system for the market or
exchange on which such common stock is principally traded, during
the Ten-Day Calculation Period.
(iv) The "Final Index Price" shall mean the weighted
average (weighted in accordance with the factors listed on
EXHIBIT 10.01) of the Final Prices for all of the companies
comprising the Index Group.
(v) The "Ten-Day Calculation Period" shall mean the ten
(10) consecutive trading days ending at the end of the third
business day preceding the date of the Meeting specified in the
Prospectus/Proxy Statement.
If Firstar or any company belonging to the Index Group declares a stock dividend
or effects a reclassification, recapitalization, split-up, combination, exchange
of shares or similar transaction between the date of this Agreement and the
Meeting Date, the closing prices for the common stock of such company shall be
appropriately adjusted for the purposes of the definitions above so as to be
comparable to the price on the date of this Agreement.
10.02. INVESTIGATION AND REVIEW. Subject to the next following
sentence, at any time prior to the 21st day following the date of this
Agreement, Firstar may, by action of the Interstate Banking and Acquisitions
Committee of the Board of Directors of Firstar (the "Firstar Committee"), elect
to terminate this Agreement on behalf of Firstar and Sub as a result of any
information obtained in the course of its investigation and review of (i)
Investors' portfolios of
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consumer loans, commercial real estate loans, second mortgage loans and other
mortgage loans, (ii) all non-accrual and restructured loans, (iii) all REO or
real estate in judgment and (iv) the underwriting of fixed rate and adjustable
rate first mortgage loans, which, in the good faith opinion of the Firstar
Committee, indicates circumstances or events that (a) have, or are reasonably
likely to have, an Investors Material Adverse Effect or (b) materially detract
from the value of Investors and its Subsidiaries to Firstar. Notwithstanding
the foregoing, Firstar may pursuant to a written instrument signed by it (which
shall not be deemed to be an amendment or modification to this Agreement)
terminate its rights to terminate this Agreement pursuant to this Section as of
any date prior to such 21st day which is specified in such written instrument.
Nothing in this Section shall be construed (i) to limit the period of time
during which Firstar may conduct its investigation and review of Investors, (ii)
to limit any duty of Investors otherwise to cooperate with the investigation and
review by Firstar subsequent to the period established pursuant to the first
sentence of this section, or (iii) to limit or qualify in any respect the
representations and warranties of Investors to Firstar set forth in this
Agreement as a result of any such investigation and review.
10.03. EFFECT OF TERMINATION. In the event of termination of this
Agreement by either Investors or Firstar as provided in SECTION 10.01 or SECTION
10.02, this Agreement and the Plan of Merger shall forthwith become void and
there shall be no liability or obligation on the part of Firstar or Investors or
their respective officers or directors except (a) with respect to SECTIONS 5.08,
6.11, 7.05, 7.07, AND 9.01, and (b) to the extent that such termination (other
than a termination in accordance with SECTION 10.01(a)(ix)) results from the
willful breach by a party hereto of any of its representations, warranties,
covenants or agreements set forth in this Agreement; provided, however, that
actions by Investors that are reasonably required to facilitate a transaction
that entitles Investors to terminate this Agreement pursuant to SECTION
10.01(a)(viii) and for the Board of Directors of Investors to comply with its
fiduciary duties to Investors' stockholders under applicable law (as such duties
are determined in accordance with SECTION 10.01(a)(viii)(3)) shall not
constitute a willful breach by Investors of any of its representations,
warranties, covenants or agreements set forth in this Agreement for purposes of
this CLAUSE (b).
10.04. AMENDMENT. Subject to the next following sentence, this
Agreement and the Plan of Merger may be amended by the parties hereto by action
taken or authorized by their respective Boards of Directors (or, in the case of
Firstar, the Firstar Committee) at any time before or after approval of the
matters presented in connection with the Merger by the stockholders of
Investors, but after any such approval by the stockholders of Investors, no
amendment shall be made which has any of the effects described in Section 251(d)
of the DGCL. This Agreement may not be amended except by an instrument in
writing signed on behalf of each of the parties hereto.
10.05. EXTENSION; WAIVER. At any time prior to the Effective Time,
Firstar and Sub, on the one hand, and Investors, on the other hand, by action
taken or authorized by their respective Boards of Directors (or, in the case of
Firstar, the Firstar Committee), may, to the extent legally allowed, (i) extend
the time for the performance of any of the obligations or other acts of the
other party hereto, (ii) waive any inaccuracies in the representations and
warranties of the other contained herein or in any document delivered by the
other pursuant hereto, and (iii) waive compliance by the other with any of the
agreements or conditions contained herein. Any agreement on the part of a party
hereto to any such extension or waiver shall be valid only if set forth in a
written instrument signed on behalf of such party.
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ARTICLE XI
GENERAL PROVISIONS
11.01. NONSURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
None of the representations, warranties and agreements in this Agreement or in
any instrument delivered pursuant to this Agreement shall survive the Effective
Time, except for the agreements contained in SECTIONS 2.01, 2.02, 2.03, 2.04,
6.05, 6.06, 6.07, 6.08, 7.03 AND 7.06, the last sentence of SECTION 10.04 and
ARTICLE XI, and the agreements delivered pursuant to SECTION 3.20, SECTION 5.06,
SECTION 6.07 and SECTION 6.08.
11.02. NOTICES. All notices and other communications hereunder
shall be in writing and shall be deemed given if delivered personally,
telecopied (with receipt confirmed) or mailed by registered or certified mail
(return receipt requested) to the parties at the following addresses (or at such
other address for a party as shall be specified by like notice):
(a) if to Firstar and/or Sub, to
Firstar Corporation
Attention: Jon H. Stowe,
Executive Vice President
777 East Wisconsin Avenue
Milwaukee, WI 53202
Telecopy: (414) 765-4349
with a copy to:
Firstar Corporation
Attention: Howard H. Hopwood III,
Senior Vice President and General Counsel
777 East Wisconsin Avenue
Milwaukee, WI 53202
Telecopy: (414) 765-6111
(b) if to Investors, to
Investors Bank Corp.
Attention: James M. Burkholder
President and Chief Executive Officer
200 East Lake Street
Wayzata, Minnesota 55391
Telecopy: (612) 475-8727
with a copy to:
Dorsey & Whitney
Attention: Thomas O. Martin, Esq.
220 South 6th Street
Minneapolis, Minnesota 55402-1498
Telecopy: (612) 340-8738
11.03. INTERPRETATION. When a reference is made in this Agreement
to Sections, such reference shall be to a Section of this Agreement unless
otherwise indicated. The table of contents and headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. Whenever the words "include,"
"includes" or "including" are used in this Agreement, they shall be deemed to be
followed by the
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words "without limitation." The phrase "made available" in this Agreement shall
mean that the information referred to has been made available if requested by
the party to whom such information is to be made available.
11.04. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when two or more counterparts have been signed by each of
the parties and delivered to the other parties, it being understood that all
parties need not sign the same counterpart.
11.05. ENTIRE AGREEMENT; NO THIRD PARTY BENEFICIARIES; RIGHTS OF
OWNERSHIP. This Agreement (including the documents and the instruments referred
to herein, including the Bank Merger Agreement and the Plan of Merger) (a)
constitutes the entire agreement and supersedes all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter hereof, except for the rights and obligations of Firstar and
Investors under the confidentiality letter agreement, dated March 10, 1994, and
(b) is not intended to confer upon any person other than the parties hereto any
rights or remedies hereunder. The parties hereby acknowledge that no party
shall have the right to acquire or shall be deemed to have acquired shares of
common stock of the other party pursuant to the Merger until consummation
thereof.
11.06. GOVERNING LAW. This Agreement shall be governed and
construed in accordance with the laws of the State of Wisconsin, except as the
MBCA and the DGCL are expressly applicable to the Merger.
11.07. PUBLICITY. The parties hereto agree that they will consult
with each other concerning any proposed press release or public announcement
pertaining to the Merger and use their best efforts to agree upon the text of
such press release or public announcement prior to the publication of such press
release or the making of such public announcement.
11.08. ASSIGNMENT. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto (whether by operation of law or otherwise) without the prior written
consent of the other parties. Subject to the preceding sentence, this Agreement
will be binding upon, inure to the benefit of and be enforceable by the parties
and their respective successors and assigns.
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11.09. KNOWLEDGE OF THE PARTIES. Wherever in this Agreement any
representation or warranty is made upon the knowledge of a party hereto that is
not an individual, such knowledge shall include the actual knowledge, after due
inquiry, of any executive officer of such party or an executive officer of any
Subsidiary thereof.
IN WITNESS WHEREOF, Firstar, Sub and Investors have caused this
Agreement to be signed by their respective officers thereunto duly authorized,
all as of the date first written above.
FIRSTAR CORPORATION
By:___________________________
Its:
Attest:
___________________________
Its:
FIRSTAR CORPORATION OF MINNESOTA
By:___________________________
Its:
Attest:
___________________________
Its:
INVESTORS BANK CORP.
By:___________________________
Its:
Attest:
___________________________
Its:
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EXHIBIT A
PLAN OF MERGER
PLAN OF MERGER, dated as of August 21, 1994 ("Plan of Merger"), by and
between Firstar Corporation of Minnesota, a Minnesota corporation ("Sub"), and
Investors Bank Corp., a Delaware corporation ("Investors"), and joined in by
Firstar Corporation, a Wisconsin corporation ("Firstar"), for certain limited
purposes.
WHEREAS, Investors is a corporation with authorized capital stock
consisting of (i) 5,000,000 shares of common stock, $.01 par value ("Investors
Common Stock"), of which 3,500,604 shares are validly issued and outstanding on
the date hereof; and (ii) 1,000,000 shares of preferred stock, $.01 par value,
of which 400,000 shares have been designated "Cumulative Perpetual Preferred
Stock, Series 1991" ("Investors Preferred Stock"), in respect of which there are
issued and outstanding 303,640 shares;
WHEREAS, Sub is a corporation with authorized capital stock of 10,000
shares of common stock, $1.00 par value ("Sub Common Stock"), 1,000 of which are
validly issued and outstanding and are owned by Firstar;
WHEREAS, Firstar is a corporation duly organized and existing under
the laws of Wisconsin;
WHEREAS, concurrently with the execution and delivery of this Plan of
Merger, Firstar, Sub and Investors have entered into an Agreement and Plan of
Reorganization (the "Agreement" and, together with this Plan of Merger, the
"Merger Agreements") that contemplates the merger of Investors with and into Sub
(the "Merger") upon the terms and conditions provided in this Plan of Merger and
the Agreement and pursuant to the Minnesota Business Corporation Act (the
"MBCA") and the Delaware General Corporation Law (the "DGCL");
WHEREAS, the Boards of Directors of Sub and Investors deem it fair and
equitable to, and in the best short-term and long-term interests of, their
respective corporations and stockholders that Investors be merged with and into
Sub with Sub being the surviving corporation, and each such Board of Directors
has approved this Plan of Merger, has authorized its execution and delivery and
has directed that this Plan of Merger and the Merger be submitted to its
respective stockholders for approval; and
WHEREAS, the Board of Directors of Firstar has authorized the
execution and delivery of this Plan of Merger and the issuance of Firstar Common
Stock (as defined in Section 2.01(a)) and the payment of cash pursuant hereto.
NOW, THEREFORE, in consideration of the premises and the agreements
herein contained, the parties hereto adopt and agree to the following
agreements, terms and conditions relating to the Merger and the mode of carrying
the same into effect:
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ARTICLE I
THE MERGER
1.01. THE MERGER. Subject to the terms and conditions of the
Merger Agreements, Investors will be merged with and into Sub, which will be the
surviving corporation, in accordance with and with the effect provided in the
MBCA and the DGCL.
1.02. EFFECTIVE TIME OF THE MERGER. Subject to the provisions of
the Merger Agreements, (a) articles of merger (the "Articles of Merger") shall
be duly prepared and executed by Sub and Investors and thereafter delivered to
the Secretary of State of the State of Minnesota for filing, as provided in the
MBCA, as soon as practicable on or after the Closing Date (as defined in the
Agreement) and (b) a certificate of merger (the "Certificate of Merger") shall
be duly prepared and executed by Sub and Investors and thereafter delivered to
the Secretary of State of the State of Delaware for filing, as provided in the
DGCL, as soon as practicable on or after the Closing Date. The Merger shall
become effective upon the filing of the Articles of Merger with the Secretary of
State of the State of Minnesota and the Certificate of Merger with the Secretary
of State of the State of Delaware or at such time within two business days
thereafter as is provided in the Articles of Merger and the Certificate of
Merger (the "Effective Time").
1.03. EFFECTS OF THE MERGER. (a) At the Effective Time, (i) the
separate existence of Investors shall cease and Investors shall be merged with
and into Sub as provided in Section 302A.651 of the MBCA and Sections 251 and
252 of the DGCL (Sub and Investors are sometimes referred to herein as the
"Constituent Corporations" and Sub is sometimes referred to herein as the
"Surviving Corporation"), (ii) the Articles of Incorporation of Sub in effect as
of the Effective Time (the "Articles") shall be the Articles of Incorporation of
the Surviving Corporation, (iii) the By-laws of Sub in effect as of the
Effective Time (the "By-laws") shall be the By-laws of the Surviving Corporation
and (iv) the members of the Board of Directors and committees thereof and the
officers of Sub immediately prior to the Effective Time shall be the members of
the Board of Directors and committees thereof and the officers of the Surviving
Corporation, respectively.
(b) At and after the Effective Time, the Surviving Corporation shall
possess all the rights, privileges, powers and franchises of a public as well as
of a private nature, and be subject to all the restrictions, disabilities and
duties of each of the Constituent Corporations; and all and singular rights,
privileges, powers and franchises of each of the Constituent Corporations, and
all property, real, personal and mixed and all debts due to either of the
Constituent Corporations on whatever account, as well as for stock subscriptions
and all other things in action or belonging to each of the Constituent
Corporations, shall be vested in the Surviving Corporation; and all property,
rights, privileges, powers and franchises, and all and every other interest
shall be thereafter as effectually the property of the Surviving Corporation as
they were of the Constituent Corporations, and the title to any real estate
vested by deed or otherwise, in either of the Constituent Corporations, shall
not revert or be in any way impaired; but all rights of creditors and all liens
upon any property of either of the Constituent Corporations shall be preserved
unimpaired, and all debts, liabilities and duties of the Constituent
Corporations shall thenceforth attach to the Surviving Corporation, and may be
enforced against it to the same extent as if said debts and liabilities had been
incurred by it. Any action or proceeding, whether civil, criminal or
administrative, pending by or against either Constituent Corporation shall be
prosecuted as if the Merger had not taken place, and the Surviving Corporation
may be substituted as a party in such action or proceeding in place of any
Constituent Corporation.
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ARTICLE II
EFFECT OF THE MERGER ON THE CAPITAL STOCK
OF THE CONSTITUENT CORPORATIONS;
EXCHANGE OF CERTIFICATES
2.01. EFFECT ON CAPITAL STOCK. As of the Effective Time, by
virtue of the Merger and without any action on the part of the holder of any
shares of Investors Common Stock or Investors Preferred Stock, but subject to
the provisions of Section 262 of the DGCL with respect to the rights of
dissenting holders of Investors Preferred Stock:
(a) CONVERSION OF INVESTORS COMMON STOCK. Subject to adjustment
pursuant to SECTION 2.01(e) hereof and Section 2.05 of the Agreement, each then
issued and outstanding share of Investors Common Stock shall be converted into
the right to receive 0.8676 fully paid and nonassessable shares of common stock,
$1.25 par value, of Firstar ("Firstar Common Stock"), including with each such
share one-half of one Firstar Preferred Share Purchase Right ("Right") issued
pursuant to the Rights Agreement dated as of January 20, 1989, between Firstar
and Firstar Trust Company, as Rights Agent (the "Rights Agreement"). Prior to
the Distribution Date (as defined in the Rights Agreement), all references in
this Plan of Merger to the Firstar Common Stock to be received pursuant to the
Merger shall be deemed to include the Rights.
(b) CONVERSION OF INVESTORS PREFERRED STOCK. Each then issued and
outstanding share of Investors Preferred Stock shall be converted into the right
to receive $27.50 plus accumulated and unpaid dividends on such shares of
Investors Preferred Stock to the Effective Time, payable in cash.
(c) STOCK HELD BY INVESTORS. Each then issued and outstanding share
of Investors Common Stock or Investors Preferred Stock owned by Investors or any
direct or indirect subsidiary of Investors (other than shares held in a
fiduciary capacity) and each share of Investors Common Stock or Investors
Preferred Stock issued and held in Investors' treasury will be cancelled and
retired.
(d) CANCELLATION OF SHARES. All shares of Investors Common Stock and
Investors Preferred Stock issued and outstanding immediately prior to the
Effective Time shall no longer be outstanding and shall automatically be
cancelled and retired and shall cease to exist, and each holder of a certificate
representing any such shares shall cease to have any rights with respect
thereto, except the right to receive the shares of Firstar Common Stock or cash,
as the case may be, to be issued or paid in consideration therefor upon the
surrender of such certificate in accordance with the Plan of Merger, without
interest.
(e) If prior to the Effective Time Firstar shall declare a stock
dividend or distribution upon or subdivide, split up, reclassify or combine its
shares of Firstar Common Stock or declare a dividend or make a distribution on
Firstar Common Stock of any security convertible into Firstar Common Stock or
exercisable to purchase Firstar Common Stock (including, without limitation,
distribution of any Firstar Rights after a Distribution Date), appropriate
adjustment or adjustments will be made in the conversion rate set forth in
SUBSECTION (a).
(f) Each outstanding share of Investors Preferred Stock as to which
dissenters' rights have been asserted in accordance with the procedures of the
DGCL and not withdrawn shall be accorded the rights provided by the DGCL and
shall not be converted into or represent rights to receive the cash hereunder
unless and until the holder shall have failed to perfect or effectively
withdrawn or lost such dissenters' rights.
2.02. EXCHANGE OF CERTIFICATES. (a) EXCHANGE AGENT. As of the
Effective Time, Firstar shall deposit with Firstar Trust Company or such other
bank or trust company designated by Firstar (and reasonably acceptable to
Investors) (the "Exchange Agent") for the benefit of the
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holders of shares of Investors Common Stock and Investors Preferred Stock, for
exchange in accordance with this ARTICLE II through the Exchange Agent,
certificates representing the shares of Firstar Common Stock and cash (such
shares of Firstar Common Stock, together with any dividends or distributions
with respect thereto, and such cash being hereinafter referred to as the
"Exchange Fund") issuable pursuant to SECTION 2.01 in exchange for shares of
Investors Common Stock and Investors Preferred Stock outstanding immediately
prior to the Effective Time. The Exchange Agent may invest the cash deposited
with it in such manner as Firstar directs. Any net profit resulting from, or
interest or income produced by, such investment shall be payable to the
Surviving Corporation. Firstar shall replace any monies lost through any
investment made at its direction pursuant to this SECTION 2.02(a). To the
extent Firstar owns shares of Firstar Common Stock as treasury stock, such
shares may be deposited into the Exchange Fund.
(b) EXCHANGE PROCEDURES. As soon as reasonably practicable after the
Effective Time, the Exchange Agent shall mail to each holder of record of a
certificate or certificates which immediately prior to the Effective Time
represented outstanding shares of Investors Common Stock and Investors Preferred
Stock (the "Certificates") whose shares were converted into the right to receive
shares of Firstar Common Stock or cash pursuant to SECTION 2.01 (i) a letter of
transmittal (which shall specify that delivery shall be effected, and risk of
loss and title to the Certificates shall pass, only upon delivery of the
Certificates to the Exchange Agent and shall be in such form and have such other
provisions as Firstar and Investors may reasonably specify) and (ii)
instructions for use in effecting the surrender of the Certificates in exchange
for certificates representing shares of Firstar Common Stock or cash, as the
case may be. Upon surrender of a Certificate for cancellation to the Exchange
Agent or to such other agent or agents as may be appointed by Firstar, together
with such letter of transmittal, duly executed, the holder of such Certificate
shall be entitled to receive in exchange therefor a certificate representing
that number of whole shares of Firstar Common Stock, or the amount of cash, as
the case may be, which such holder has the right to receive pursuant to the
provisions of this ARTICLE II, and the Certificate so surrendered shall
forthwith be cancelled. Notwithstanding the foregoing, certificates surrendered
for exchange by any person deemed an "affiliate" of Investors (as defined in
Section 3.22 of the Agreement) shall not be exchanged for the consideration
deliverable pursuant to the provisions of this ARTICLE II until Firstar has
received a written agreement from such person as provided in Section 5.06 of the
Agreement. In the event of a transfer of ownership of Investors Common Stock or
Investors Preferred Stock which is not registered in the transfer records of
Investors, a certificate representing the proper number of shares of Firstar
Common Stock may be issued or the proper amount of cash may be paid to a
transferee if the Certificate representing such Investors Common Stock or
Investors Preferred Stock is presented to the Exchange Agent, accompanied by all
documents required to evidence and effect such transfer and by evidence that any
applicable stock transfer taxes have been paid. Until surrendered as
contemplated by this SECTION 2.02, each Certificate shall be deemed at any time
after the Effective Time to represent only the right to receive upon such
surrender the certificate representing shares of Firstar Common Stock and cash
in lieu of any fractional shares of Firstar Common Stock, or cash, as the case
may be, as contemplated by this SECTION 2.02.
(c) DISTRIBUTIONS WITH RESPECT TO UNEXCHANGED SHARES. No dividends
or other distributions declared or made after the Effective Time with respect to
Firstar Common Stock with a record date after the Effective Time shall be paid
to the holder of any unsurrendered Certificate with respect to the shares of
Firstar Common Stock represented thereby, and no cash payment in lieu of
fractional shares of Firstar Common Stock shall be paid to any such holder
pursuant to SECTION 2.02(e), until the holder of record of such Certificate
shall surrender such Certificate. Subject to the effect of applicable laws,
following surrender of any such Certificate, there shall be paid to the record
holder of the certificates representing whole shares of Firstar Common Stock
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issued in exchange therefor, without interest, (i) at the time of such
surrender, (A) the amount of any cash payable in lieu of a fractional share of
Firstar Common Stock to which such holder is entitled pursuant to SECTION
2.02(e) and (B) the amount of dividends or other distributions with a record
date after the Effective Time theretofore paid with respect to such whole shares
of Firstar Common Stock, and (ii) at the appropriate payment date, the amount of
dividends or other distributions with a record date after the Effective Time but
prior to surrender and a payment date subsequent to surrender payable with
respect to such whole shares of Firstar Common Stock.
(d) NO FURTHER OWNERSHIP RIGHTS IN INVESTORS STOCK. All shares of
Firstar Common Stock and all cash issued or paid upon the surrender for exchange
or payment of shares of Investors Common Stock or Investors Preferred Stock in
accordance with the terms hereof (including any cash paid pursuant to SECTION
2.02(c) or 2.02(e)) shall be deemed to have been issued in full satisfaction of
all rights pertaining to such shares of Investors Common Stock or Investors
Preferred Stock, SUBJECT, HOWEVER, to the Surviving Corporation's obligation to
pay any dividends or make any other distributions with a record date prior to
the Effective Time which may have been declared or made by Investors on such
shares of Investors Common Stock or Investors Preferred Stock in accordance with
the terms of the Agreement or prior to the date hereof and which remain unpaid
at the Effective Time, and there shall be no further registration of transfers
on the stock transfer books of the Surviving Corporation of the shares of
Investors Common Stock or Investors Preferred Stock which were outstanding
immediately prior to the Effective Time. If, after the Effective Time,
Certificates are presented to the Surviving Corporation or Firstar for any
reason, they shall be cancelled and exchanged as provided in this Plan of
Merger.
(e) NO FRACTIONAL SHARES. Notwithstanding any other provision of
this Plan of Merger to the contrary, neither certificates nor scrip representing
fractional shares of Firstar Common Stock shall be issued upon the surrender for
exchange of Certificates, and such fractional share interests will not entitle
the owner thereof to vote or to any rights of a stockholder of Firstar. Each
holder of shares of Investors Common Stock who would otherwise have been
entitled to a fraction of a share of Firstar Common Stock shall receive in lieu
thereof cash (without interest) in an amount determined by multiplying the
fractional share interest to which such holder would otherwise be entitled by
the closing price per share of Firstar Common Stock at the Effective Time on the
New York Stock Exchange Composite Transaction Tape. From time to time at the
request of the Exchange Agent after the determination of amounts of cash to be
paid to holders of Investors Common Stock in lieu of any fractional share
interests, Firstar shall make available such amounts to the Exchange Agent.
(f) TERMINATION OF EXCHANGE FUND. Any portion of the Exchange Fund
which remains undistributed to the stockholders of Investors for six months
after the Effective Time shall be delivered to Firstar, upon demand, and any
stockholders of Investors who have not theretofore complied with this SECTION
2.02 shall thereafter look only to Firstar for payment of their claim for
Firstar Common Stock or cash, including cash in lieu of fractional shares of
Firstar Common Stock and any dividends or distributions with respect to Firstar
Common Stock.
(g) NO LIABILITY. None of Firstar, Sub and Investors shall be liable
to any holder of shares of Investors Common Stock or Investors Preferred Stock
or Firstar Common Stock, as the case may be, for such shares (or dividends or
distributions with respect thereto) or cash from the Exchange Fund delivered to
a public official pursuant to any applicable abandoned property, escheat or
similar law.
(h) WITHHOLDING RIGHTS. Firstar and Sub shall be entitled to deduct
and withhold from the consideration otherwise payable pursuant to the Agreements
to any former
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holder of shares of Investors Common Stock or Investors Preferred Stock such
amounts as Firstar or Sub is required to deduct and withhold with respect to the
making of such payment under the Internal Revenue Code of 1986, as amended, or
any provision of state, local or foreign tax law. To the extent that amounts
are so withheld by Firstar or Sub, such withheld amounts shall be treated for
all purposes of this Agreement as having been paid to the former holder of the
shares of Investors Common Stock or Investors Preferred Stock in respect of
which such deduction and withholding was made by Firstar or Sub.
2.03. EFFECT ON COMMON STOCK OF SUB. At the Effective Time, the
shares of Sub Common Stock validly issued and outstanding immediately prior to
the Effective Time will continue to evidence 1,000 shares of common stock, $1.00
par value, of the Surviving Corporation so that all shares of capital stock of
the Surviving Corporation will continue to be owned by Firstar. The outstanding
certificates representing shares of Sub Common Stock will, after the Effective
Time, continue to represent the same number of shares of the Surviving
Corporation.
ARTICLE III
CONDITIONS; TERMINATION; AMENDMENT
3.01. CONDITIONS TO THE MERGER. Consummation of the Merger is
conditional upon the fulfillment or waiver of the conditions precedent set forth
in Article VIII of the Agreement.
3.02. TERMINATION. This Plan of Merger may be terminated and the
Merger abandoned by mutual consent of the respective Boards of Directors of
Investors and Sub at any time prior to the Effective Time. If the Agreement is
terminated in accordance with Article X thereof, then this Plan of Merger will
terminate simultaneously and the Merger will be abandoned without further action
by Investors or Sub.
3.03. AMENDMENT. Subject to the next following sentence, this
Plan of Merger may be amended by the parties hereto by action taken or
authorized by their respective Boards of Directors (or, in the case of Firstar,
the Interstate Banking and Acquisitions Committee of its Board of Directors) at
any time before or after approval of the matters presented in connection with
the Merger by the stockholders of Investors or of Sub, but after any such
approval by the stockholders of Investors, no amendment shall be made which has
any of the effects described in Section 251(d) of the DGCL. This Plan of Merger
may not be amended except by an instrument in writing signed on behalf of each
of the parties hereto.
3.04. EXTENSION; WAIVER. At any time prior to the Effective Time,
Firstar and Sub, on the one hand, and Investors, on the other hand, by action
taken or authorized by their respective Board of Directors (or, in the case of
Firstar, the Interstate Banking and Acquisitions Committee of its Board of
Directors), may, to the extent legally allowed, (i) extend the time for the
performance of any of the obligations or other acts of the other party hereto
and (ii) waive compliance by the other with any of the agreements or conditions
contained herein. Any agreement on the part of a party hereto to any such
extension or waiver shall be valid only if set forth in a written instrument on
behalf of such party.
ARTICLE IV
GENERAL PROVISIONS
4.01. NOTICES. All notices and other communications hereunder
shall be in writing and shall be deemed given if delivered personally,
telecopied (with receipt confirmed) or
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mailed by registered or certified mail (return receipt requested) to the parties
at the following addresses (or at such other address for a party as shall be
specified by like notice):
(a) if to Firstar and/or Sub, to
Firstar Corporation
Attention: Jon H. Stowe,
Executive Vice President
777 East Wisconsin Avenue
Milwaukee, WI 53202
Telecopy: (414) 765-4349
with a copy to:
Firstar Corporation
Attention: Howard H. Hopwood III,
Senior Vice President and General Counsel
777 East Wisconsin Avenue
Milwaukee, WI 53202
Telecopy: (414) 765-6111
(b) if to Investors, to
Investors Bank Corp.
Attention: James M. Burkholder
President and Chief Executive Officer
200 East Lake Street
Wayzata, Minnesota 55391
Telecopy: (612) 475-8727
with a copy to:
Dorsey & Whitney
Attention: Thomas O. Martin, Esq.
220 South 6th Street
Minneapolis, Minnesota 55402-1498
Telecopy: (612) 340-2860
4.02. INTERPRETATION. When a reference is made in this Plan of
Merger to Sections, such reference shall be to a Section of this Plan of Merger
unless otherwise indicated. The headings contained in this Plan of Merger are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Plan of Merger.
4.03. COUNTERPARTS. This Plan of Merger may be executed in two or
more counterparts, all of which shall be considered one and the same agreement
and shall become effective when two or more counterparts have been signed by
each of the parties and delivered to the other parties, it being understood that
all parties need not sign the same counterpart.
4.04. GOVERNING LAW. This Plan of Merger shall be governed and
construed in accordance with the laws of the State of Wisconsin, except as the
MBCA and DGCL are expressly applicable to the Merger.
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IN WITNESS WHEREOF, Sub, Investors and Firstar have caused this Plan
of Merger to be signed by their respective officers thereunto duly authorized,
all as of the date first written above.
FIRSTAR CORPORATION
By:___________________________
Its:
Attest:
___________________________
Its:
FIRSTAR CORPORATION OF MINNESOTA
By:___________________________
Its:
Attest:
___________________________
Its:
INVESTORS BANK CORP.
By:___________________________
Its:
Attest:
___________________________
Its:
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EXHIBIT B
MERGER AGREEMENT
INVESTORS SAVINGS BANK, F.S.B.
WITH AND INTO
FIRSTAR BANK OF MINNESOTA, NATIONAL ASSOCIATION
MERGER AGREEMENT ("Bank Merger Agreement") dated as of August 21,
1994, adopted and made by and between Firstar Bank of Minnesota, National
Association ("Firstar Bank"), a national banking association having its
principal office at Bloomington, Minnesota, acting pursuant to resolutions
adopted by the vote of a majority of its board of directors in accordance with
applicable provisions of 12 C.F.R. Section 5.33, and Investors Savings Bank,
F.S.B. ("Investors FSB"), a federal savings bank having its principal office at
Wayzata, Minnesota, acting pursuant to resolutions adopted by the vote of
two-thirds of its entire board of directors in accordance with applicable
provisions of 12 C.F.R. Section 552.13.
W I T N E S S E T H
WHEREAS, Firstar Bank is a national banking association organized and
existing under the laws of the United States, the authorized capital stock of
which consists of 7,146,000 shares of common stock, par value of $5.00 per share
("Firstar Bank Common Stock"), of which at the date hereof 7,146,000 shares are
issued and outstanding; and
WHEREAS, Investors FSB is a federal savings bank organized and
existing under the laws of the United States, the authorized capital stock of
which consists of 200,000 shares of common stock, par value $2.50 per share
("Investors FSB Common Stock"), all of which at the date hereof are issued and
outstanding; and
WHEREAS, Firstar Bank's parent corporations, Firstar Corporation of
Minnesota and Firstar Corporation, and Investors FSB's parent corporation,
Investors Bank Corp., have entered into an Agreement and Plan of Reorganization
("Reorganization Agreement") that contemplates the merger of Investors FSB with
and into Firstar Bank; and
WHEREAS, the respective Boards of Directors of Investors FSB and
Firstar Bank deem the merger of Investors FSB with and into Firstar Bank, under
and pursuant to the terms and conditions herein set forth or referred to,
desirable and in the best interests of the respective institutions and their
respective shareholders, and the respective Boards of Directors of Firstar Bank
and Investors FSB have adopted resolutions approving this Bank Merger Agreement
and each of the Boards of Directors of Firstar Bank and Investors FSB has
directed that this Bank Merger Agreement be submitted to their respective
shareholders for approval; and
WHEREAS, approval of this Bank Merger Agreement requires the
affirmative vote of the holders of at least two-thirds of the outstanding shares
of Investors FSB Common Stock and the holders of at least two-thirds of the
outstanding shares of the Firstar Bank Common Stock; and
WHEREAS, the sole shareholder of Firstar Bank has approved this Bank
Merger Agreement; and
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WHEREAS, the sole shareholder of Investors FSB has approved this Bank
Merger Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained and intending to be legally bond hereby, the parties
hereto do hereby agree as follows:
ARTICLE I
BANK MERGER
Subject to the terms and conditions of this Bank Merger Agreement, on
the Effective Date (as hereinafter defined), Investors FSB shall be merged with
and into Firstar Bank pursuant to the provisions of, and with the effect
provided in, 12 U.S.C. Section 215c, 12 U.S.C. Section 1467a(s), 12 C.F.R.
Section 5.33 and 12 C.F.R. Section 552.13 (said transaction being hereinafter
referred to as the "Bank Merger"). On the Effective Date, the separate
existence of Investors FSB shall cease and Firstar Bank, as the surviving
entity, shall continue its existence under the name "Firstar Bank of Minnesota,
National Association" unaffected and unimpaired by the Bank Merger, and shall be
liable for all of the liabilities of Investors FSB existing at the Effective
Date, including without limitation liabilities with respect to savings accounts
of Investors FSB (Firstar as existing on and after the Effective Date being
hereinafter sometimes referred to as the "Surviving Bank"). The main office of
Firstar Bank at Bloomington, Minnesota shall be the main office of the Surviving
Bank and the branch offices thereof will be located at the locations set forth
on the attached Schedule A.
ARTICLE II
ARTICLES OF ASSOCIATION AND BY-LAWS
The Articles of Association and the By-Laws of Firstar Bank in effect
immediately prior to the Effective Date shall be the Articles of Association and
the By-Laws of the Surviving Bank, in each case until amended in accordance with
applicable law.
ARTICLE III
BOARD OF DIRECTORS
On the Effective Date, the Board of Directors of the Surviving Bank
shall consist of those persons named in the attached Schedule B.
ARTICLE IV
CAPITAL
The shares of capital stock of Firstar Bank issued and outstanding
immediately prior to the Effective Date shall, on the Effective Date, continue
to be issued and outstanding.
ARTICLE V
CANCELLATION OF INVESTORS FSB SHARES
1. On the Effective Date, each share of Investors FSB Common Stock
outstanding immediately prior to the Effective Date shall by virtue of the Bank
Merger be canceled and no cash, stock or other property shall be delivered in
exchange therefor.
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2. On the Effective Date, the stock transfer books of Investors FSB
shall be closed and no transfer of Investors FSB Common Stock shall thereafter
be made or recognized.
ARTICLE VI
EFFECTIVE DATE OF THE BANK MERGER
The Bank Merger shall be effective at the later of the time and on the
date upon which the Bank Merger is permitted to occur by the Office of the
Comptroller of the Currency or at the time and on the date upon which the Bank
Merger is permitted to occur by the Office of Thrift Supervision (such date and
time being herein referred to as the "Effective Date").
ARTICLE VII
FURTHER ASSURANCES
If at any time the Surviving Bank shall consider or be advised that
any further assignments, conveyances or assurances are necessary or desirable to
vest, perfect or confirm in the Surviving Bank title to any property or rights
of Investors FSB, or otherwise carry out the provisions hereof, the proper
officers and directors of Investors FSB, as of the Effective Date, and
thereafter the officers of the Surviving Bank acting on behalf of Investors FSB,
shall execute and deliver any and all proper assignments, conveyances and
assurances, and do all things necessary or desirable to vest, perfect or confirm
title to such property or rights in the Surviving Bank and otherwise carry out
the provisions hereof.
ARTICLE VIII
CONDITIONS PRECEDENT
The obligations of Investors FSB and Firstar Bank to effect the Bank
Merger as herein provided shall be subject to satisfaction, unless duly waived,
of the conditions set forth in the Reorganization Agreement and the prior
effectiveness of the merger between Firstar Corporation of Minnesota and
Investors Bank Corp. contemplated thereby.
ARTICLE IX
TERMINATION
Anything contained in this Bank Merger Agreement to the contrary
notwithstanding, and notwithstanding adoption hereof by the shareholders of
Investors FSB or Firstar Bank, this Bank Merger Agreement may be terminated and
the Bank Merger abandoned as provided in the Reorganization Agreement. In the
event the Reorganization Agreement is terminated pursuant to the terms thereof,
this Bank Merger Agreement shall become void and have no effect.
ARTICLE X
MISCELLANEOUS
1. This Bank Merger Agreement may be amended or supplemented at any
time by mutual agreement of Investors FSB and Firstar Bank. Any such amendment
or supplement must be in writing and approved by their respective Boards of
Directors.
2. The headings of the several Articles herein are inserted for
convenience of reference only and are not intended to be a part of or to affect
the meaning or interpretation of this Bank Merger Agreement.
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3. This Bank Merger Agreement may be executed in several
counterparts, each of which shall be deemed the original, but all of which
together shall constitute one and the same instrument.
4. This Bank Merger Agreement shall be governed by and construed in
accordance with the laws of Minnesota, except to the extent federal law may be
applicable.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have caused this Bank Merger Agreement to be executed in counterparts by
their duly authorized officers and their corporate seals to be hereunto affixed
and attested by their officers thereunto duly authorized, all as of the day and
year first above written.
ATTEST INVESTORS SAVINGS BANK, F.S.B.
By:
____________________ ______________________________
Name: Name:
Title: Title:
(SEAL)
ATTEST FIRSTAR BANK OF MINNESOTA,
NATIONAL ASSOCIATION
By:
____________________ ______________________________
Name: Name:
Title: Title:
(SEAL)
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STATE OF MINNESOTA )
)
COUNTY OF HENNEPIN )
On this ____ day of August, 1994, before me, a notary public for this state
and county, personally came ______________________________, as
____________________, and _____________________________ as ____________________,
respectively, of Investors Bank F.S.B., and each in his/her capacity
acknowledged this instrument to be the act and deed of the savings bank and the
seal affixed to be its seal; and came also
_______________________ _______________________
James M. Burkholder Graham N. Heikes
_______________________ _______________________
John G. Lohmann, Jr. George E. Maas
_______________________ _______________________
E. Thomas Binger Alice D. Mortensen
_______________________
Leonard E. Brown
Page 76 of 94
<PAGE>
being a majority of the Directors of Firstar Bank of Minnesota, and each of them
acknowledged said instrument to be the act and deed of said association and of
himself or herself as director thereof.
WITNESS my official seal and signature this day and year.
(Seal of Notary)
--------------------------------------------
Notary Public, Hennepin County
My commission expires ______________________
STATE OF MINNESOTA )
)
COUNTY OF HENNEPIN )
On this ____ day of August, 1994, before me, a notary public for this
state and county, personally came __________________________, as
__________________, and _____________________, as ________________,
respectively, of Firstar Bank of Minnesota, National Association, and each in
his/her capacity acknowledged this instrument to be the act and deed of the
association and the seal affixed to it be its seal; and came also
John A. Becker Richard W. Schoenke
William G. Hawkins Edwin M. Theisen
Amos Heilicher Jerold W. Wulf
Quentin O. Heimerman
James W. Lupient
Rudy Dan Luther
Malcolm W. McDonald
Page 77 of 94
<PAGE>
being a majority of the Directors of Investors Bank, F.S.B. and each of them
acknowledged said instrument to be the act and deed of said association and of
himself or herself as director thereof.
WITNESS my official seal and signature this day and year.
(Seal of Notary)
____________________________________________
Notary Public, Hennepin County
My commission expires ______________________
Page 78 of 94
<PAGE>
SCHEDULE A
LIST OF BRANCHES OF THE SURVIVING BANK
6900 France Avenue South 1420 Yankee Doodle Road
Edina, MN Eagan, MN 55121
14431 Forest Boulevard North
1817 Plymouth Road South Hugo, MN 55038
Minnetonka, MN
177 St. Croix Trail South
2690 North Snelling Avenue Lakeland Shores, MN 55043
Roseville, MN
7984 Lake Drive
757 Cleveland Avenue South Lino Lakes, MN 55014
St. Paul, MN
607 Marquette Avenue
527 Marquette Avenue Minneapolis, MN 55402
Minneapolis, MN
4930-34th Avenue South
5540 Brooklyn Boulevard Minneapolis, MN 55417
Brooklyn Center, MN
17600 Hwy 7
386 North Wabasha Minnetonka, MN 55345
St. Paul, MN
2299 Palmer Drive
200 East Lake Street New Brighton, MN 55112-2497
Wayzata, MN
13605 27th Avenue North
9845 Lyndale Avenue South Plymouth, MN 55441
Bloomington, MN
6500 Nicollet Avenue South
80 South 8th Street Richfield, MN 55423
Minneapolis, MN
1445 West County Road B
4801 South Highway 101 Roseville, MN 55113
Minnetonka, MN
2100 North Snelling Avenue
3670 Aquila Avenue South Roseville, MN 55113
St. Louis Park, MN
2401 Lowry Avenue NE
3445 Bunker Lake Boulevard St. Anthony, MN 55418
Andover, MN 55304
8800 Hwy 7
4061 North Lexington Avenue St. Louis Park, MN 55426
Arden Hills, MN 55126
400 South Hwy. 169
1550 East 79th Street St. Louis Park, MN 55426
Bloomington, MN 55425-1139
2310 West 7th Street
One Commercial Street St. Paul, MN 55116
Circle Pines, MN 55014-4400
53 East 6th Street
1950 Cliff Lake Road St. Paul, MN 55101
Eagan, MN 55122
Page 79 of 94
<PAGE>
6001 Stillwater Boulevard
Stillwater, MN 55082
213 East Chestnut Street
Stillwater, MN 55082
SCHEDULE B
LIST OF DIRECTORS OF THE SURVIVING BANK
John A. Becker
James M. Burkholder
William G. Hawkins
Amos Heilicher
Quentin O. Heimerman
James W. Lupient
Rudy Dan Luther
Malcolm W. McDonald
Richard W. Schoenke
Edwin M. Theisen
Jerold W. Wulf
Page 80 of 94
<PAGE>
Firstar Corporation
August ___, 1994
Page 81
EXHIBIT 5.06 (To Agreement and Plan of Reorganization)
[Form of Investors Affiliate's Letter]
August ___, 1994
Firstar Corporation
777 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
Gentlemen:
I have been advised that as of the date hereof I may be deemed an
"affiliate" of Investors Bank Corp., a Delaware corporation ("Investors"), as
that term is defined for purposes of paragraphs (c) and (d) of Rule 145 of the
rules and regulations (the "Rules and Regulations") under the Securities Act of
1933, as amended (the "Act") ("Affiliate"). Pursuant to the terms of the
Agreement and Plan of Reorganization among Firstar Corporation, a Wisconsin
corporation ("Firstar"), Firstar Corporation of Minnesota, a Minnesota
corporation ("FCM"), and Investors (the "Reorganization Agreement"), and the
related Plan of Merger by and between Investors and FCM joined in by Firstar for
certain limited purposes, both dated as of August ___, 1994 (together with the
Reorganization Agreement, the "Agreements"), Investors will be merged with and
into FCM (the "Merger").
As a result of the Merger, I may (i) receive shares of common stock of
Firstar, $1.25 par value ("Firstar Common Stock"), (ii) have my warrants issued
under a Warrant Agreement dated October 15, 1991, each of which represents the
right to purchase 2/3 share of Common Stock of Investors, $.01 par value
("Investors Common Stock") (the "Warrants") converted into warrants to purchase
Firstar Common Stock (the "Firstar Warrants") and/or (iii) have the right to
purchase Firstar Common Stock upon the exercise of currently outstanding options
to purchase Investors Common Stock (the "Options"). Following the Merger, I may
acquire Firstar Common Stock pursuant to the exercise of the Firstar Warrants
and/or the Options.
In connection with the above transactions, I represent and warrant to
Firstar and agree that:
A. I will not make any sale, transfer or other disposition of the Firstar
Common Stock received in the Merger or upon exercise of Firstar Warrants or
Options ("Merger Stock") or Firstar Warrants in violation of the Act or the
Rules and Regulations.
B. I have no present plan or intent to dispose of the Merger Stock or
Firstar Warrants acquired by me in connection with the Merger.
C. I have been advised that the offering, sale and delivery of the shares
of Firstar Common Stock to me pursuant to the Merger will be registered under
the Act on a Registration Statement on Form S-4. I have also been advised,
however, that, since I may be deemed to be an Affiliate of Investors at the time
the Agreements are submitted for a vote of the shareholders of Investors, the
shares of Merger Stock and/or Firstar Warrants must be held by me indefinitely
unless (i) such shares of Merger Stock and/or Firstar Warrants have been
registered for distribution under the Act, (ii) a sale of the shares of Merger
Stock and/or Firstar Warrants is made in conformity with the volume and other
limitations of Rule 145, or (iii) in the opinion of counsel acceptable to
Firstar,
Page 81 of 94
<PAGE>
Firstar Corporation
August ___, 1994
Page 2
some other exemption from registration under the Act is available with respect
to any such proposed sale, transfer or other disposition.
D. I have carefully read this letter agreement and the Agreements and have
discussed their requirements and other applicable limitations upon my ability to
sell, transfer or otherwise dispose of the shares of Merger Stock and/or Firstar
Warrants to the extent I felt necessary, with my counsel or counsel for
Investors.
E. I understand that Firstar is under no obligation to register the sale,
transfer or other disposition of the shares of Merger Stock and/or Firstar
Warrants for sale, transfer or other disposition by me to make compliance with
an exemption from registration available.
F. I understand that stop transfer instructions will be given to Firstar's
transfer agent(s) and/or the registrar(s) and that there will be placed on the
certificates for the shares of Merger Stock and/or Firstar Warrants I receive in
connection with the Merger or any substitutions therefore, a legend stating in
substance:
"The shares represented by this certificate were issued in a
transaction (the acquisition of Investors Bank Corp.) to which Rule
145 promulgated under the Securities Act of 1933, as amended (the
"Act"), applies and may be sold or otherwise transferred only in
compliance with the limitations of such Rule 145, or upon receipt by
Firstar Corporation of an opinion of counsel acceptable to it that
some other exemption from registration under the Act is available, or
pursuant to a registration statement under the Act. The shares
represented by this certificate may not be sold or otherwise
transferred prior to the publication by Firstar Corporation of an
earnings statement covering at least 30 days of operations subsequent
to [insert the effective date of the Merger]."
G. I hereby agree that, for a period of two (2) years following the
effective date of the Merger, I will obtain an agreement similar to this
agreement from each transferee of the shares of Merger Stock and/or Firstar
Warrants sold or otherwise transferred by me, but only if such transfer is
effected other than in a transaction involving a registered public offering or
as a sale pursuant to Rule 145.
H. Notwithstanding the other provisions hereof, I agree not to sell,
pledge, transfer, or otherwise dispose of the shares of Merger Stock and/or
Firstar Warrants, or reduce my risk relative to the Firstar Common Stock in any
other way, from the date hereof until such time as financial results covering at
least 30 days of combined operations of the parties to the Merger have been
published within the meaning of Section 201.01 of the Securities and Exchange
Commission's Codification of Financial Reporting Policies. I have not reduced
my risk relative to the Firstar Common Stock to date.
It is understood and agreed that this Agreement will terminate and be of no
further force and effect and the legend set forth in Paragraph F above will be
removed by delivery of substitute certificates without such legend, and the
related transfer restrictions shall be lifted forthwith, if the period of time
specified in Paragraph H of this Agreement has passed and (i) my shares of
Merger Stock and/or Firstar Warrants shall have been registered under the Act
for sale, transfer or other disposition by me or on my behalf, (ii) I am not at
the time an Affiliate of Firstar and have held the shares of Merger Stock and/or
Firstar Warrants for at least two (2) years (or such other period as may be
prescribed by the Act and the Rules and Regulations) and Firstar has filed with
the
Page 82 of 94
<PAGE>
Firstar Corporation
August ___, 1994
Page 3
Securities and Exchange Commission ("SEC") all of the reports it is required to
file under the Securities Exchange Act of 1934, as amended, during the preceding
twelve (12) months, (iii) I am not and have not been for at least three (3)
months an Affiliate of Firstar and I have held the shares of Merger Stock and/or
Firstar Warrants for at least three (3) years, or (iv) Firstar shall have
received a letter from the staff of the SEC, or an opinion of Firstar's General
Counsel or other counsel acceptable to Firstar, to the effect that the stock
transfer restrictions and the legend are not required.
This Agreement shall be binding on my heirs, legal representatives and
successors.
Very truly yours,
_______________________________
Name 1
_______________________________
Name
_______________________________
Name
Accepted as of the ____ day of August, 1994.
FIRSTAR CORPORATION
By: _____________________
- - --------------------
1 In the event this undertaking covers shares held jointly or held
individually by one or more related parties of an affiliate who beneficially
owns such shares, each joint or related party shall sign.
Page 83 of 94
<PAGE>
EXHIBIT 7.07
CERTAIN PROPERTIES
1. Garden Village Apartments
St. Louis Park, MN
2. Brooklyn Manor Apartments
Brooklyn Park, MN
3. 13001-5 County Road 5
Burnsville, MN
4. Countryside Apartments
Forest Lake, MN
Page 84 of 94
<PAGE>
EXHIBIT 10.01
INDEX
INSTITUTION WEIGHTING
----------- ---------
Banc One Corporation 12.59815%
Norwest Corporation 10.38056%
KeyCorp 8.03616%
NBD Bancorp, Inc. 5.22383%
National City Corporation 4.93813%
Huntington Bancshares Inc. 4.26593%
Comerica Incorporated 3.89681%
First Bank System, Inc. 3.75595%
Boatmen's Bancshares, Inc. 3.44556%
U.S. Bancorp 3.28950%
Marshall & Ilsley Corporation 3.13368%
First Chicago Corporation 2.85252%
SouthTrust Corporation 2.63009%
State Street Boston Corp. 2.51473%
Fifth Third Bancorp 2.03344%
First of America Bank Corp. 1.94685%
AmSouth Bancorporation 1.93871%
Meridian Bancorp, Inc. 1.90182%
Signet Banking Corporation 1.87102%
Northern Trust Corporation 1.77871%
Midlantic Corporation 1.72427%
UJB Financial Corp. 1.71271%
First Security Corporation 1.61802%
Mercantile Bancorporation Inc. 1.41962%
Bancorp Hawaii, Inc. 1.39491%
Regions Financial Corp. 1.37926%
Old Kent Financial Corporation 1.33621%
Crestar Financial Corporation 1.24096%
Union Bank 1.16680%
Integra Financial Corp. 1.10311%
BanPonce Corporation 1.07868%
First Tennessee National Corp. 1.04879%
BayBanks, Inc. 0.61971%
Michigan National Corporation 0.50318%
First Empire State Corporation 0.22159%
Page 85 of 94
<PAGE>
EXHIBIT 2.2
VOTING AGREEMENT
THIS VOTING AGREEMENT dated as of August 21, 1994 (this "Agreement"),
is entered into by and between Firstar Corporation ("Firstar"), a Wisconsin
corporation, and ___________________ ("Stockholder").
W I T N E S S E T H :
WHEREAS, as of the date hereof, Stockholder is the owner of certain
shares of the common stock of Investors Bank Corp. ("Investors"), $.01 par value
(Investors Common Stock");
WHEREAS, Firstar is contemplating the acquisition of Investors by
means of a merger (the "Merger") of Investors with and into Firstar Corporation
of Minnesota ("Sub"), a Minnesota corporation and a wholly-owned subsidiary of
Firstar, pursuant to an Agreement and Plan of Reorganization (the
"Reorganization Agreement") and a Plan of Merger, each dated of even date
herewith (together, the "Merger Agreements");
WHEREAS, Firstar is unwilling to expend the substantial time, effort
and expense necessary to implement the proposed acquisition of Investors,
including applying for and obtaining necessary approvals of federal banking and
savings and loan institution authorities, unless Stockholder enters into this
Agreement with Firstar; and
WHEREAS, Stockholder believes it is in his best interest as well as
the best interest of Investors for Firstar to consummate the Merger;
NOW, THEREFORE, in consideration of the covenants and agreements of
the parties herein contained and as an inducement to Firstar to enter into the
Merger Agreements, the parties hereto, intending to be legally bound, hereby
agree as follows:
1. DEFINITIONS. All capitalized terms not otherwise defined herein
are as defined in the Reorganization Agreement.
2. REPRESENTATIONS AND WARRANTIES. Stockholder represents and
warrants that as of the date hereof, Stockholder (a) owns beneficially the
number of shares of Investors Common Stock set forth on the signature page
hereto, all of which shares are free and clear of all liens, pledges, security
interests, claims, encumbrances, options and agreements to sell or otherwise
transfer, except as disclosed in the Investors Disclosure Letter or pledges
pursuant to margin accounts; (b) has the sole voting power with respect to such
shares; and (c) has the right to acquire (i) the number of shares of Investors
Common Stock pursuant to Investors Stock Options set forth on the signature page
hereto, (ii) the number of shares of Investors Common Stock pursuant to
Investors Restricted Stock Award Agreements between him and Investors set forth
on the signature page hereto, and (iii) the number of shares of Investors Common
Stock pursuant to Investors Warrants he holds set forth on the signature page
hereto.
3. VOTING AGREEMENT. Stockholder shall vote all the shares of
Investors Common Stock he now owns or hereafter acquires (the "Subject Shares")
in favor of the Merger at the meeting of stockholders of Investors called for
the purpose of approving the Merger. Stockholder shall not vote in favor of or
consent to any acquisition of stock or all or substantially
Page 86 of 94
<PAGE>
all of the assets of Investors by, or merger or consolidation of Investors with,
any party other than Firstar, Sub or their affiliates, prior to the termination
of this Agreement. Stockholder shall not sell, assign, pledge (or materially
increase borrowings under any existing pledge) or otherwise transfer the Subject
Shares prior to the termination of this Agreement unless adequate provision is
made to assure that any Subject Shares remain subject to this Agreement.
Stockholder authorizes Firstar to deliver a copy of this Agreement to Investors
to provide notice to Investors of the foregoing restriction on transfer. At
Firstar's request, Stockholder shall use his best efforts to cause the meeting
of stockholders of Investors for the purpose of approving the Merger to be duly
called and held.
4. NO OWNERSHIP INTEREST. Nothing contained in this Agreement shall
be deemed to vest in Firstar any direct or indirect ownership or incidence of
ownership of or with respect to any shares of Investors Common Stock. All
rights to and ownership and economic benefits of the Subject Shares shall remain
with and belong to Stockholder, and Firstar shall have no authority to manage,
direct, superintend, restrict, regulate, govern or administer any of the
policies or operations of Investors or exercise any power or authority to direct
Stockholder in the voting of any of the shares of Investors Common Stock, or the
performance of his duties or responsibilities as a stockholder of Investors,
except as otherwise expressly provided herein.
5. EVALUATION OF INVESTMENT. Stockholder, by reason of his
knowledge and experience in financial and business matters and through serving
as an officer or director of a financial institution, believes himself capable
of evaluating the merits and risks of the investment in common stock of Firstar,
$1.25 par value ("Firstar Common Stock"), contemplated by the Merger Agreements.
6. DOCUMENTS DELIVERED. Stockholder acknowledges receipt of copies
of the following documents:
a. Merger Agreements and all exhibits thereto;
b. Firstar's 1993 Annual Report (including Annual Report on Form
10-K for the year ended December 31, 1993);
c. Notice of 1994 Annual Meeting of Stockholders and Proxy Statement
dated April 21, 1994 of Firstar;
d. Firstar's Quarterly Reports on Form 10-Q for the periods ended
March 31 and June 30, 1994.
7. AMENDMENT AND MODIFICATION. This Agreement may be amended,
modified or supplemented at any time by the written approval of such amendment,
modification or supplement by Investors, Stockholder and Firstar.
8. ENTIRE AGREEMENT. This Agreement evidences the entire agreement
among the parties hereto with respect to the matters provided for herein and
there are no agreements, representations or warranties with respect to the
matters provided for herein other than those set forth herein and in the Merger
Agreements and their related written agreements. This Agreement supersedes any
agreements among Investors and its stockholders, concerning the acquisition,
disposition or control of the stock of Investors, except the Investors
Restricted Stock Award Agreements, the agreements relating to Investors Stock
Options and the Investors Warrants.
9. SEVERABILITY. The parties agree that if any provision of this
Agreement shall under any circumstances be deemed invalid or inoperative, this
Agreement shall be construed
Page 87 of 94
<PAGE>
with the invalid or inoperative provisions deleted and the rights and
obligations of the parties shall be construed and enforced accordingly.
10. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute but one and the same instrument.
11. GOVERNING LAW. The validity, construction, enforcement and
effect of this Agreement shall be governed by the internal laws of the State of
Minnesota, except that the Delaware General Corporation Law shall apply as to
matters arising under such law.
12. HEADINGS. The headings for the paragraphs of this Agreement are
inserted for convenience only and shall not constitute a part hereof or affect
the meaning or interpretation of this Agreement.
13. SUCCESSORS. This Agreement shall be binding upon and inure to
the benefit of Investors and Firstar, and their successors, and Stockholder and
Stockholder's spouse and their respective executors, personal representatives,
administrators, heirs, legatees, guardians and other legal representatives.
This Agreement shall survive the death or incapacity of Stockholder. This
Agreement may be assigned by Firstar only to an affiliate of Firstar.
14. TERMINATION. This Agreement shall terminate upon the earliest to
occur of (1) the Effective Time or (2) the termination of the Reorganization
Agreement pursuant to its terms.
Page 88 of 94
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
FIRSTAR CORPORATION
Attested by: By:
_____________________ ________________________________
Its:
Its: _______________________________
________________________________
STOCKHOLDER
___________________________________
[Name]
_____________________________________
Shares of Investors Common
Stock owned
___________________________________
[Spouse]
_____________________________________
Shares of Investors Common Stock that
Stockholder has a right to acquire:
_____________________________________
Pursuant to Investors Stock Options
_____________________________________
Pursuant to Investors Restricted
Stock Award Agreements
_____________________________________
Pursuant to Investors Warrants
Page 89 of 94
<PAGE>
EXHIBIT 4.1
FIRST AMENDMENT
AND
SUPPLEMENT TO
RIGHTS AGREEMENT
BETWEEN
INVESTORS BANK CORP.
AND
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
THIS AMENDMENT, is made and executed as of August 21, 1994, by and between
Investors Bank Corp. (the "Company") and Norwest Bank Minnesota, National
Association (the "Rights Agent").
WHEREAS, the Company and the Rights Agent have heretofore entered into that
certain Rights Agreement dated as of May 7, 1991 (the "Rights Agreement")
pursuant to which the Company declared a dividend of preferred stock purchase
rights;
WHEREAS, the Company is, and has been engaged in discussions with Firstar
Corporation ("Firstar") regarding the possible merger of the Company with
Firstar Corporation of Minnesota ("Sub"), a wholly owned subsidiary of Firstar;
WHEREAS, the Company, Firstar and Sub have negotiated an Agreement and Plan
of Reorganization dated August 21, 1994 ("the Reorganization Agreement") to
effect such merger;
WHEREAS, the Company believes that the Reorganization Agreement does not
effect the Rights Agreement or the rights outstanding thereunder but wishes to
clarify the same by amending the Rights Agreement;
WHEREAS, Section 27 of the Rights Agreement provides that the Rights
Agreement may be amended by action of the Board of Directors of the Company at
any time before a distribution date; and
WHEREAS, the Board of Directors of the Company has authorized and directed
this amendment.
NOW, THEREFORE, in consideration of the foregoing recitals, the
Reorganization Agreement, and for other good and valuable consideration, the
Company and the Rights Agreement hereby agree as follows:
1. AMENDMENT TO SECTION 1(a). Section 1(a) of the Rights Agreement is
hereby amended to add a subclause (v) which shall read as follows: "(v) Firstar
Corporation, or any Affiliate or Associate thereof, so long as such Persons
acquire the Beneficial Ownership of 15% or more of the Common Shares pursuant to
and in accordance with the terms of that certain Agreement and Plan of
Reorganization, dated August 21, 1994 (the "Reorganization Agreement"), among
the Company, Firstar Corporation ("Firstar") and Firstar Corporation of
Minnesota ("Sub"), as the same may be hereafter amended from time to time."
2. AMENDMENT TO SECTION 3. Section 3 of the Rights Agreement is hereby
amended by adding the words "; PROVIDED, HOWEVER that the execution of the
Reorganization Agreement and any public announcement thereof does not constitute
the commencement or announcement by Firstar or Sub of an intention to commence a
tender or exchange offer the consummation of which
Page 90 of 94
<PAGE>
will result in such persons becoming the Beneficial Owner of Common Shares
aggregating 15% or more of the then outstanding Common Shares" to the end of the
first sentence thereof.
3. OTHER CHANGES. Except with respect to the changes set forth above, the
Rights Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, this Amendment has been executed by the undersigned
authorized officers as of the 21st day of August, 1994.
INVESTORS BANK CORP.
By
___________________________________________
______________________________ John G. Lohmann,Jr. Executive Vice
Attest: President
______________________________
Lynn V. Bueltel,
Senior Vice President
and Chief Financial Officer
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
By
__________________________________________
Its
____________________________________
Attest
______________________________
Page 91 of 94
<PAGE>
EXHIBIT 20.1
For Immediate Release
August 22, 1994
FIRSTAR AND INVESTORS BANK CORP. ANNOUNCE DEFINITIVE AGREEMENT
Milwaukee, Wis. -- Firstar Corporation (NYSE:FSR) and Investors Bank Corp.
(NASDAQ:INVS) today announced that they signed a definitive agreement for
Firstar to acquire Investors, parent company of Investors Savings Bank, FSB,
a $1 billion thrift headquartered in Wayzata, Minnesota.
The agreement calls for Firstar Corporation to exchange .8676 of its shares of
common stock for each outstanding share of Investors common stock. based on the
closing price of Firstar stock on August 19, Investors shareholders will receive
Firstar stock worth $27.87 for each Investor share. Investors common stock
warrants will become warrants to purchase Firstar common stock. The total value
of the transaction, including the assumption of Investors stock options, is
approximately $106 million. Upon closing, holders of Investors preferred stock
will receive a cash payment of $27.50 per share, or a total of $8.4 million.
Firstar will repurchase up to 320,000 of its shares which, along with up to
$2,883,477 newly issued shares, will be used in the merger transaction. The
transaction will be accounted for as a pooling of interests. The merger is
expected to be completed during the first quarter of 1995, subject to approval
by regulators and Investors shareholders. Investors directors and executive
officers have entered into agreements with Firstar to vote their shares in favor
of the merger.
During the 21 days following the signing of the merger agreement, after due
diligence review of Investors' loan files, Firstar may terminate the agreement
under certain circumstances. A termination fee of $4.5 million would be paid to
Firstar by Investors in certain circumstances if the transaction is not
completed.
The merger agreement provides Investors with the right to terminate the
transaction should Firstar's stock price fall below $29 and fall 12.5% relative
to a bank stock index during the 10 trading days prior to the Investors
shareholder meeting to vote on the transaction.
"This transaction will double the asset size of Firstar's Minnesota bank and
give Firstar access to very attractive new markets in the Twin Cities," Firstar
Chairman Roger L. Fitzsimonds said, noting that Investors serves some of the
higher growth communities in Minnesota. "Investors serves 50,000 area
households through deposit services, home mortgage origination and servicing,
and consumer lending. These are long-term customer relationships with excellent
potential for extension into other financial services such as trust and
investment management services."
James M. Burkholder, who is chairman, president and chief executive officer of
Investors, said the affiliation with Firstar would mean greater convenience and
a broader range of services for Investors customers. "Firstar is a well
regarded, highly successful financial institution that possesses extensive
resources and a reputation for quality service and good corporate citizenship.
In addition to delivering strong shareholder returns, we believe this
relationship will be advantageous to our customers, employees and communities."
Page 92 of 94
<PAGE>
Investors' 12 banking locations will be merged into Firstar Bank of Minnesota,
which has 24 bank offices in the Twin Cities area. Investors' mortgage banking
operation has another 12 offices that originate mortgage loans. They are
located in the Twin Cities (6 offices); Duluth, Minn. (1); Waukesha, Wis (1);
and the Chicago area (4). The loan production offices will become part of
Firstar's home loan subsidiary, Firstar Home Mortgage Corporation, which is
headquartered in Milwaukee.
Burkholder will be named president and chief executive officer of Firstar Home
Mortgage Corporation following completion of the acquisition. Investors
services approximately $2 billion in home mortgage loans, including $1.2 billion
of loans serviced for others.
"This transaction will double Firstar's loan origination volume corporatewide
and extend the geographic reach of our home mortgage business, which we have
targeted for above-average growth in the coming years," Fitzsimonds said. "Jim
Burkholder's leadership will contribute greatly toward that goal. Within 10
years of its establishment, Investors had become the third largest mortgage
originator in the Minneapolis/St. Paul metro area. We feel fortunate to be
adding the expertise of Jim and his many fine associates to our organization."
Fitzsimonds added that Burkholder would also serve as a director of Firstar Bank
of Minnesota.
Firstar Corporation is a $14 billion bank holding company headquartered in
Milwaukee. It has 36 banks with 197 offices in Wisconsin, Iowa, Minnesota,
Illinois, Arizona and Florida. Other subsidiaries provide trust, investment
management, mortgage banking, insurance, securities brokerage and other
financial services for institutions and individuals.
###
FOR MORE INFORMATION, CALL:
Jon Stowe, Exec. Vice President/Mergers and Acquisitions, 414-784-1420 (home),
414-765-5331 (office)
Ann Weninger, Manager of Public Communication, 414-962-7103 (home), 414-765-5901
(office)
Page 93 of 94
<PAGE>
EXHIBIT 20.2
FOR IMMEDIATE RELEASE
TUESDAY, August 24, 1994
INVESTORS AUTHORIZES SHARE REPURCHASE
MINNEAPOLIS, Minnesota, August 24, 1994--Investors Bank Corp. (NASDAQ: INVS)
announced today that its board has authorized the repurchase of up to 80,000
shares of Investors' common stock over the next six months. There are
approximately 3.5 million shares of Investors' common stock outstanding.
Investors and Firstar Corporation announced on Monday the execution of an
agreement and plan of reorganization pursuant to which Investors would be
merged into Firstar Corporation of Minnesota.
The repurchase program, which is required by the reorganization agreement
between Investors and Firstar, will be implemented by purchases from time to
time in the open market or through negotiated transactions. The repurchased
shares will be held as treasury shares for delivery upon exercise of outstanding
options and warrants.
Investors Bank Corp. is a savings and loan holding company whose principal asset
is Investors Savings Bank, F.S.B., a federally chartered savings bank with
twelve rertail banking offices and twelve mortgage production offices. All of
the retail banking offices and six of the mortgage production offices are in
the twin cities metropolitan area. Four of the mortgage offices are in suburban
Chicago, one is in suburban Milwaukee and one is in Duluth.
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