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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): March 16, 1997
--------------
TCF Financial Corporation
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(Exact name of registrant as specified in its charter)
Delaware
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(State or other jurisdiction of incorporation)
0-16431 41-1591444
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Commission File Number (IRS Employer Identification No.)
801 Marquette Avenue, Suite 302, Minneapolis, Minnesota 55402
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(Address of principal executive offices)
(612) 661-6500
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Registrant's Telephone Number
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Item 5. OTHER EVENTS
TFC Financial Corporation, a Delaware corporation ("TCF"), and Standard
Financial, Inc., a Delaware corporation ("Standard"), have entered into an
Agreement and Plan of Reorganization (the "Reorganization Agreement"), dated
March 16, 1997, providing for the combination of TCF and Standard (the
"Transaction"). The Transaction will be structured as a cash election merger in
which the holders of Standard common stock will have the right to elect cash,
TCF common stock or a combination thereof, subject to certain limitations set
forth in the Reorganization Agreement. At the Effective Time (as that term is
defined in the Reorganization Agreement) of the Transaction, each outstanding
share of Standard common stock will be converted into TCF common stock, cash or
a combination thereof, based on a value of TCF common stock determined over the
30 consecutive trading days ending on the Determination Date (as that term is
defined in the Reorganization Agreement).
Completion of the Transaction is subject to certain conditions, including
(i) approval by the shareholders of Standard, (ii) approval by the Federal
Reserve Board, the Comptroller of Currency, the Office of Thrift Supervision and
other requisite regulatory authorities, (iii) receipt of opinions to Standard
and TCF that the Transaction will be treated, for federal income tax purposes,
as a tax-free reorganization, and (iv) other conditions to closing customary in
transactions of this type.
Certain additional information regarding the Transaction is contained in
the press release (the "Press Release"), dated March 17, 1997. The
Reorganization Agreement and Press Release are attached hereto as exhibits and
incorporated herein by reference. The foregoing summary of such exhibits is
qualified in its entirety by reference to the complete text of such exhibits.
CAUTIONARY STATEMENT FOR PURPOSES OF THE PRIVATE SECURITIES LITIGATION REFORM
ACT OF 1995.
This Current Report, the Press Release attached hereto and other written
and oral statements made by or on behalf of TCF contain, or may contain,
certain "forward-looking statements," including statements concerning plans,
objectives and future events or performance, and other statements which are
other than statements of historical fact. Factors that may cause actual
results to differ materially from those contemplated by such forward-looking
statements include, but are not limited to, the following: (i) failure to
fully realize or to realize within the expected time frame expected cost
savings from the Transactions; (ii) lower than expected income or revenues
following the Transaction, or higher than expected operating costs; (iii) a
significant increase in competitive pressure in the banking and financial
services industry; (iv) business disruption related to the Transaction (both
before and after completion); (v) greater than expected costs or difficulties
related to the integration of the management of TCF and Standard; (vi)
litigation costs and delays caused by litigation; (vii) higher than
anticipated costs in completing the Transaction; (viii) unanticipated
regulatory delays or constraints or changes in the proposed transaction
imposed by regulatory authorities; (ix) reduction in interest margins due to
changes in the interest rate environment; (x) poorer than expected general
economic conditions, including acquisition and growth opportunities, either
nationally or in the states in which TCF will be doing business following the
Transaction; (xi) legislation or regulatory changes which adversely affect
the businesses in which the combined company would be engaged; (xii) declines
in TCF's common stock price which permit Standard to elect not to proceed
with the Transaction; and (xiii) other unanticipated occurrences which may
delay the consummation of the Transaction, increase the costs related to the
Transaction or decrease the expected financial benefits of the Transaction.
<PAGE>
Item 7. FINANCIAL STATEMENTS AND EXHIBITS
(c) Exhibits
2.1 Agreement and Plan of Reorganization dated March 16, 1997.
99.1 Press Release dated March 17, 1997.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Dated: March 21, 1997
TCF FINANCIAL CORPORATION
By /s/ Ronald J. Palmer
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Ronald J. Palmer
Its Treasurer and Chief Financial Officer
<PAGE>
AGREEMENT AND PLAN OF REORGANIZATION
by and between
TCF FINANCIAL CORPORATION
and
STANDARD FINANCIAL, INC.
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March 16, 1997
--------------------
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TABLE OF CONTENTS
Page
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ARTICLE 1 - THE MERGER . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.1 The Merger. . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.2 Effects of the Merger.. . . . . . . . . . . . . . . . . . . . 3
1.3 Effect on Outstanding Shares of New Bank Common Stock and
Stock Plans . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.4 Merger Consideration Election . . . . . . . . . . . . . . . . 6
1.5 No Fractional Shares. . . . . . . . . . . . . . . . . . . . . 10
1.6 Procedure for Exchange of New Bank Common Stock.. . . . . . . 10
1.7 Dissenting Shares . . . . . . . . . . . . . . . . . . . . . . 12
1.8 Effect on Common Stock of Merger Sub. . . . . . . . . . . . . 13
1.9 Corporate Matters . . . . . . . . . . . . . . . . . . . . . . 13
1.10 Tax Consequences. . . . . . . . . . . . . . . . . . . . . . . 14
1.11 Alternative Structure . . . . . . . . . . . . . . . . . . . . 14
ARTICLE 2 - REPRESENTATIONS AND WARRANTIES OF TCF. . . . . . . . . . . . . . 14
2.1 Organization and Qualification. . . . . . . . . . . . . . . . 14
2.2 Authority Relative to this Agreement; Non-Contravention . . . 15
2.3 Capitalization. . . . . . . . . . . . . . . . . . . . . . . . 17
2.4 1934 Act Reports. . . . . . . . . . . . . . . . . . . . . . . 17
2.5 Financial Statements. . . . . . . . . . . . . . . . . . . . . 18
2.6 Subsidiaries. . . . . . . . . . . . . . . . . . . . . . . . . 19
2.7 Absence of Undisclosed Liabilities. . . . . . . . . . . . . . 19
2.8 No Material Adverse Changes.. . . . . . . . . . . . . . . . . 20
2.9 Absence of Certain Developments . . . . . . . . . . . . . . . 20
2.10 Litigation. . . . . . . . . . . . . . . . . . . . . . . . . . 21
2.11 No Brokers or Finders. . . . . . . . . . . . . . . . . . . . 22
2.12 Compliance with Laws; Permits.. . . . . . . . . . . . . . . . 22
2.13 Prospectus/Proxy Statement. . . . . . . . . . . . . . . . . . 23
2.14 Validity of TCF Common Stock. . . . . . . . . . . . . . . . 23
2.15 Reports and Filings.. . . . . . . . . . . . . . . . . . . . . 24
2.16 Employee Benefit Plans. . . . . . . . . . . . . . . . . . . . 24
2.17 Properties. . . . . . . . . . . . . . . . . . . . . . . . . . 24
2.18 Interest Rate Risk Management Instruments . . . . . . . . . . 25
2.19 Fairness Opinion. . . . . . . . . . . . . . . . . . . . . . . 25
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ARTICLE 3 - REPRESENTATIONS AND WARRANTIES OF STANDARD . . . . . . . . . . . 25
3.1 Organization and Qualification. . . . . . . . . . . . . . . . 25
3.2 Authority Relative to this Agreement; Non-Contravention.. . . 26
3.3 Capitalization. . . . . . . . . . . . . . . . . . . . . . . . 27
3.4 1934 Act Reports and Regulatory Reports.. . . . . . . . . . . 27
3.5 Financial Statements. . . . . . . . . . . . . . . . . . . . . 28
3.6 Loans. . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
3.7 Subsidiaries. . . . . . . . . . . . . . . . . . . . . . . . . 30
3.8 Absence of Undisclosed Liabilities. . . . . . . . . . . . . . 30
3.9 No Material Adverse Changes.. . . . . . . . . . . . . . . . . 31
3.10 Absence of Certain Developments.. . . . . . . . . . . . . . . 31
3.11 Properties. . . . . . . . . . . . . . . . . . . . . . . . . . 33
3.12 Tax Matters . . . . . . . . . . . . . . . . . . . . . . . . . 35
3.13 Contracts and Commitments. . . . . . . . . . . . . . . . . . 36
3.14 Litigation. . . . . . . . . . . . . . . . . . . . . . . . . . 36
3.15 No Brokers or Finders.. . . . . . . . . . . . . . . . . . . . 36
3.16 Employee Benefit Plans. . . . . . . . . . . . . . . . . . . . 37
3.17 Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . 41
3.18 Affiliate Transactions. . . . . . . . . . . . . . . . . . . . 41
3.19 Compliance with Laws; Permits.. . . . . . . . . . . . . . . . 42
3.20 Administration of Fiduciary Accounts. . . . . . . . . . . . . 42
3.21 Prospectus/Proxy Statement. . . . . . . . . . . . . . . . . 43
3.22 Interest Rate Risk Management Instruments.. . . . . . . . . . 43
3.23 State Takeover Laws; Shareholder Rights Plan. . . . . . . . . 43
3.24 Fairness Opinion. . . . . . . . . . . . . . . . . . . . . . . 43
ARTICLE 4 - CONDUCT OF BUSINESS PENDING THE MERGER . . . . . . . . . . . . . 44
4.1 Conduct of Business by Standard and the Standard Subsidiaries. 44
4.2 Conduct of Business by TCF. . . . . . . . . . . . . . . . . 48
ARTICLE 5 - ADDITIONAL COVENANTS AND AGREEMENTS. . . . . . . . . . . . . . . 50
5.1 Filings and Approvals.. . . . . . . . . . . . . . . . . . . . 50
5.2 Certain Loans and Related Matters.. . . . . . . . . . . . . . 50
5.3 Monthly Financial Statements. . . . . . . . . . . . . . . . . 51
5.4 Expenses. . . . . . . . . . . . . . . . . . . . . . . . . . . 51
5.5 No Negotiations, etc. . . . . . . . . . . . . . . . . . . . . 51
5.6 Notification of Certain Matters.. . . . . . . . . . . . . . . 52
5.7 Access to Information; Confidentiality. . . . . . . . . . . . 53
5.8 Filing of Tax Returns and Adjustments.. . . . . . . . . . . . 54
5.9 Registration Statement. . . . . . . . . . . . . . . . . . . . 55
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5.10 Affiliate Letters.. . . . . . . . . . . . . . . . . . . . . . 57
5.11 Establishment of Accruals.. . . . . . . . . . . . . . . . . . 57
5.12 Employee Benefit Plans. . . . . . . . . . . . . . . . . . . . 58
5.13 Tax Treatment.. . . . . . . . . . . . . . . . . . . . . . . . 59
5.14 Press Releases. . . . . . . . . . . . . . . . . . . . . . . . 59
5.15 Indemnification and Insurance.. . . . . . . . . . . . . . . . 59
5.16 TCF SEC Reports . . . . . . . . . . . . . . . . . . . . . . . 61
5.17 Securities Reports. . . . . . . . . . . . . . . . . . . . . 61
5.18 Stock Exchange Listing. . . . . . . . . . . . . . . . . . . . 61
5.19 Shareholder Approval. . . . . . . . . . . . . . . . . . . . . 61
5.20 Failure to Fulfill Conditions.. . . . . . . . . . . . . . . . 62
5.21 Standard Severance/Change in Control. . . . . . . . . . . . . 62
5.22 Headquarters of Resulting Institution . . . . . . . . . . . . 62
5.23 Conversion/Reincorporation. . . . . . . . . . . . . . . . . . 62
5.24 Private Letter Ruling . . . . . . . . . . . . . . . . . . . . 62
ARTICLE 6 - CONDITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
6.1 Conditions to Obligations of Each Party.. . . . . . . . . . . 63
6.2 Additional Conditions to Obligation of Standard.. . . . . . . 64
6.3 Additional Conditions to Obligation of TCF. . . . . . . . . . 67
ARTICLE 7 - TERMINATION, AMENDMENT AND WAIVER. . . . . . . . . . . . . . . . 71
7.1 Termination.. . . . . . . . . . . . . . . . . . . . . . . . . 71
7.2 Effect of Termination.. . . . . . . . . . . . . . . . . . . . 73
7.3 Amendment.. . . . . . . . . . . . . . . . . . . . . . . . . . 74
7.4 Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
ARTICLE 8 - GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . 75
8.1 Public Statements.. . . . . . . . . . . . . . . . . . . . . . 75
8.2 Notices.. . . . . . . . . . . . . . . . . . . . . . . . . . . 75
8.3 Interpretation. . . . . . . . . . . . . . . . . . . . . . . . 76
8.4 Severability. . . . . . . . . . . . . . . . . . . . . . . . . 76
8.5 Miscellaneous.. . . . . . . . . . . . . . . . . . . . . . . . 77
8.6 Survival of Representations, Warranties and Covenants . . . . 77
8.7 Schedules.. . . . . . . . . . . . . . . . . . . . . . . . . . 77
8.8 Descriptive Headings. . . . . . . . . . . . . . . . . . . . . 77
8.9 Parties in Interest.. . . . . . . . . . . . . . . . . . . . . 77
8.10 Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . 77
iii
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EXHIBITS:
A Form of Standard Affiliate Letter
iv
<PAGE>
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (this "Agreement") is made and
entered into as of March 16, 1997, by and between TCF FINANCIAL CORPORATION, a
Delaware corporation ("TCF"), and STANDARD FINANCIAL, INC., a Delaware
corporation ("Standard").
W I T N E S S E T H:
WHEREAS, Standard Federal Bank for savings, a federal savings bank (the
"Bank"), is a wholly-owned first tier subsidiary of Standard;
WHEREAS, the Boards of Directors of TCF and Standard have determined that
it is in the best interests of TCF and Standard and their respective
shareholders to consummate a strategic combination of the companies;
WHEREAS, the strategic combination contemplated by this Agreement will be
effected as follows: FIRST, Standard will cause a new interim savings
association to be formed ("New Bank"); SECOND, Standard will contribute all of
its assets to New Bank and New Bank will assume all of Standard's liabilities
and obligations (including Standard's obligations under this Agreement); THIRD,
Standard will dissolve and as a result thereof, certificates representing the
shares of common stock, par value $.01 per share, of Standard ("Standard Common
Stock") will be converted into the right to receive an equal number of shares of
common stock, par value $.01 per share, of New Bank ("New Bank Common
Stock") (the transactions referred to in clauses FIRST through THIRD hereof is
herein referred to as the "Conversion/Reincorporation" and, after the
Conversion/Reincorporation, the term "Standard" as used in this Agreement shall
also mean New Bank); FOURTH, New Bank will merge with and into a wholly-owned
bank subsidiary of TCF ("Merger Sub") as provided in this Agreement (the
"Merger"); and FIFTH, Bank will, immediately after the Merger, be merged (the
"Subsequent Merger") with and into Merger Sub which shall be the surviving
institution (the "Resulting Institution");
WHEREAS, TCF and Standard desire that the Conversion/Reincorporation, the
Merger and Subsequent Merger be made on the terms and subject to the conditions
set forth in this Agreement and qualify as a reorganization within the meaning
of Section 368(a) of the Internal Revenue Code of 1986, as amended (the "Code").
1
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NOW, THEREFORE, in consideration of the representations, warranties and
covenants contained herein, the parties hereto agree as follows:
ARTICLE 1
THE MERGER
1.1 THE MERGER.
(a) Subject to the terms and conditions of this Agreement, New
Bank shall, at the Effective Time (as defined herein), merge with and into
Merger Sub, and the separate existence of New Bank shall cease. Merger Sub
shall be the resulting institution in the Merger and shall continue its
corporate existence. Immediately after the Merger, Bank shall be merged into
Merger Sub, and Merger Sub will be the Resulting Institution of the Subsequent
Merger.
(b) The Merger and the Subsequent Merger will be effected
pursuant to the provisions of, and with the effect provided in, the applicable
provisions of the rules and regulations of the offices of the Comptroller of the
Currency (the "OCC"), the Office of Thrift Supervision ("OTS") and any other
applicable authority, as may be applicable (such applicable regulatory authority
is hereinafter referred to as the "Bank Authority"), including the execution by
Merger Sub and New Bank of articles of merger in the form required by the Bank
Authority setting forth the terms of this Agreement (the "Articles of Merger")
and the filing thereof with the Bank Authority.
(c) Subject to the provisions of Articles 6 and 7 hereof, the
closing of the transactions contemplated hereby shall take place at such
location, on such date, and at such time as TCF and Standard mutually agree, at
the earliest practicable time after the expiration of all applicable waiting
periods, in connection with approvals of governmental authorities and the
satisfaction or waiver of all conditions to the Merger, but in no event later
than ten business days after all such waiting periods have expired and all such
conditions have been satisfied or waived, or on such other date as the parties
hereto may mutually agree upon. On the closing date, to effect the Merger, the
parties hereto will cause the Articles of Merger to be executed and filed with
the Bank Authority and the Merger shall be effective upon the filing of the
Articles of Merger with the Bank Authority in accordance with the rules and
regulations of the Bank Authority (the "Effective Time"). The term "Effective
Date" shall mean the day on which the Merger becomes effective.
2
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1.2 EFFECTS OF THE MERGER. At the Effective Time, the Resulting
Institution shall thereupon and thereafter (a) be responsible and liable for all
the liabilities, debts, penalties and obligations of each of Merger Sub and New
Bank, and (b) possess all the rights, privileges, immunities and franchises, of
a public as well as of a private nature, of each of Merger Sub and New Bank; all
property, real, personal and mixed, and all debts due on any account, including
subscriptions to shares and all causes in action, and all and every other
interest, of or belonging to or due to each of Merger Sub and New Bank shall be
taken and deemed to be transferred to and vested in the Resulting Institution
without further act or deed; and the title to any real estate or any interest
therein, vested in Merger Sub and New Bank shall not revert or be in any way
impaired by reason of the Merger.
1.3 EFFECT ON OUTSTANDING SHARES OF NEW BANK COMMON STOCK AND STOCK
PLANS. To effectuate the Merger, and subject to the terms and conditions of
this Agreement, at the Effective Time:
(a) NEW BANK COMMON STOCK. Each issued and outstanding share of
New Bank Common Stock on the Effective Date (other than the following shares of
New Bank Common Stock which shall be cancelled, retired and cease to exist, and
no exchange or payment shall be made with respect thereto: (i) Dissenting Shares
(as defined in Section 1.7), if any, (ii) shares of New Bank Common Stock held
as treasury stock of New Bank, and (iii) shares of New Bank Common Stock held
directly or indirectly by TCF except for such shares held in a fiduciary
capacity or in satisfaction of a debt previously contracted), shall be converted
into and exchangeable for the Merger Consideration. The aggregate number of
shares of New Bank Common Stock entitled to receive the Merger Consideration is
referred to as the "Outstanding New Bank Shares." The "Merger Consideration"
shall consist of the amount of cash and/or shares of TCF Common Stock (valued at
the Average TCF Stock Price (as defined below)) which, when combined, equals the
value per share set forth in the chart below opposite the appropriate Average
TCF Stock Price, as may be determined not later than the Effective Time pursuant
to the provisions of this Section 1.3(a). Such amount shall be allocated among
the holders of New Bank Common Stock in accordance with Section 1.4. The amount
of Merger Consideration payable with respect to each share of New Bank Common
Stock entitled to Merger Consideration is referred to as the "Merger
Consideration Value Per Share." The "Merger Consideration Value Per Share" shall
be determined as follows:
3
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AVERAGE TCF STOCK PRICE MERGER CONSIDERATION VALUE PER SHARE
- --------------------------------------------------------------------------------
Greater than $54.00 $12.50 + 0.24643 x Average TCF Stock
Price
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Greater than $47.75 and less than $25.81
or equal to $54.00
- --------------------------------------------------------------------------------
Greater than or equal to $43.75 $12.50 + 0.27869 x Average TCF Stock
and less than or equal to $47.75 Price
Greater than or equal to $37.50 $24.69
and less than $43.75
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Less than $37.50 $12.50 + 0.32514 x Average TCF Stock
Price
- --------------------------------------------------------------------------------
The term "Aggregate Cash" shall mean the sum of: (i) the number of
Dissenting Shares multiplied by the Merger Consideration Value Per Share (the
"Dissenting Shares Cash"), (ii) the amount payable with respect to the Stock
Options outstanding at the Effective Time pursuant to Section 1.3(b) ("Option
Cash") and (iii) the aggregate amount of the cash portion of the Merger
Consideration for the Outstanding New Bank Shares (the "Aggregate Cash Merger
Consideration").
If the Average TCF Stock Price is equal to or less than $47.75 and equal to
or greater than $43.75, then the aggregate Merger Consideration shall consist of
(i) cash equal to the number of Outstanding New Bank Shares multiplied by
$12.50, and (ii) a number of shares of TCF Common Stock equal to 0.27869
multiplied by the number of Outstanding New Bank Shares.
If the Average TCF Stock Price is less than $43.75 or greater than $47.75,
TCF shall notify Standard and the Exchange Agent not later than the Effective
Time as to the amount of the Aggregate Cash Merger Consideration which shall be
part of the Merger Consideration and the balance of the Merger Consideration
shall be paid in shares of TCF Common Stock based on the value of such shares at
the Average TCF Stock Price; provided, however, the Aggregate Cash shall not be
less than 44.5% of the Aggregate Merger Transaction Amount (as defined below)
unless the Average TCF Stock Price is greater than $54.00 in which case the
Aggregate Cash Merger Consideration shall not be less than $10.76 multiplied by
the Outstanding New Bank Shares and, provided
4
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further, in no event will the Aggregate Cash less Option Cash exceed the maximum
amount permitted without preventing the Merger and the
Conversion/Reincorporation from qualifying as a reorganization with the meaning
of Section 368(a) of the Code as determined by the tax advisors of TCF and
Standard.
The "Average TCF Stock Price" shall be the average of the daily closing
sales prices of TCF Common Stock as reported on the New York Stock Exchange
Composite Transactions reporting system (as reported by The Wall Street Journal
or, if not reported thereby, another authoritative source as mutually agreed by
TCF and Standard) for the 30 consecutive full trading days ending on the
Determination Date. The "Determination Date" shall be the third business day
immediately prior to either (x) the date (as originally scheduled in the notice
mailed to the shareholders and without giving effect to any adjournments or
postponements) of the special meeting of the Standard stockholders to obtain the
approvals referred to in Section 5.19 hereof or (y) the date on which the last
regulatory approval required to consummate the Merger has been obtained and all
statutory or regulatory waiting periods in respect thereof have expired,
whichever date is closest to the Effective Date. The "Aggregate Merger
Transaction Amount" is an amount equal to (i) the Aggregate Cash, plus (ii) the
aggregate number of shares of TCF Common Stock included as part of the Merger
Consideration multiplied by the Average TCF Stock Price.
All of the shares of New Bank Common Stock converted into and exchangeable
for the Merger Consideration pursuant to this Article 1 shall no longer be
outstanding and shall automatically be cancelled and cease to exist as of the
Effective Time. Each certificate previously representing any such shares of New
Bank Common Stock shall thereafter represent the right to receive the Merger
Consideration pursuant to this Section 1.3(a), as allocated among the holders of
Outstanding New Bank Shares in accordance with Section 1.4. On and after the
Effective Date and until surrendered for exchange, each stock certificate which
immediately prior to the Effective Date represented Outstanding New Bank Shares
shall be deemed for all purposes, except as provided in Section 1.6(b) hereof,
to evidence ownership of and to represent the number of whole shares of TCF
Common Stock, if any, into which such Outstanding New Bank Shares shall have
been converted pursuant to this Section 1.3(a) as allocated among the holders of
Outstanding New Bank Shares in accordance with Section 1.4. The record holder
of such outstanding certificate shall, after the Effective Date, be entitled to
vote the shares of TCF Common Stock into which the shares of Outstanding New
Bank Shares evidenced by such certificate shall have been so
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<PAGE>
converted on any matters on which the holders of record of TCF Common Stock, as
of any date subsequent to the Effective Date, shall be entitled to vote. In any
matters relating to such certificates of New Bank Common Stock, TCF may rely
conclusively upon the record of stockholders maintained by New Bank or New
Bank's stock transfer agent containing the names and addresses of the holders of
record of New Bank Common Stock on the Effective Date.
(b) STOCK OPTIONS. At the Effective Time, each outstanding stock
option to purchase shares of Standard Common Stock (a "Stock Option") granted
under either the Standard Financial, Inc. Stock Option Plan or the Standard
Financial, Inc. Stock Option Plan for Outside Directors (together, the "Standard
Stock Option Plans") shall, pursuant to the terms of such plans, become
immediately exercisable and fully vested. Immediately prior to the Effective
Time, all outstanding Stock Options shall be cancelled, and Standard shall pay
to each holder, for each Stock Option held, an amount in cash equal to the
Market Value of the Stock Option on the Effective Date, less the Exercise Price
of the option (as those terms are defined in the Standard Stock Option Plans).
Standard confirms that it is the intent of the Standard Stock Option Plans to
provide that the "Market Value of the Common Stock" (as used in the Standard
Stock Option Plans) per share for the purposes of computing the amount payable
to the holders of the Stock Options pursuant to this Section 1.3(b) shall be the
Merger Consideration Value Per Share.
(c) MANAGEMENT RECOGNITION AND RETENTION PLAN. At the Effective
Time, pursuant to the Standard Financial, Inc. Management Recognition and
Retention Plan (the "MRRP"), the Plan Shares subject to Plan Share Awards held
by Participants in the MRRP (as such terms are defined in the MRRP) shall become
100% vested, such shares shall be Outstanding New Bank Shares, and holders of
such shares shall be entitled to receive Merger Consideration and to make cash
elections as provided in Sections 1.3 and 1.4. Pursuant to the representations
in Section 3.3, all of such Plan Shares subject to Plan Share Awards are
included in the number of outstanding shares of Standard Common Stock stated in
Schedule 3.3.
1.4 MERGER CONSIDERATION ELECTION.
(a) Subject to the limitations set forth in this Section 1.4,
holders of Outstanding New Bank Shares shall be provided with an opportunity to
elect to receive cash consideration in lieu of TCF Common Stock in the Merger
for any or all such shares of New Bank Common Stock, in accordance with the
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election procedures set forth in this Section 1.4. An election form (an
"Election Form") and other appropriate and customary transmittal materials
(which shall specify that delivery shall be effected, and risk of loss and title
to the certificates theretofore representing New Bank Common Stock ("Old
Certificates") shall pass, only upon proper delivery of such Old Certificates to
an exchange agent designated by TCF (the "Exchange Agent") in such form as
Standard and TCF shall mutually agree) shall be mailed immediately after the
Effective Time ("Mailing Date") to each holder of record of Standard Common
Stock as of the Effective Time.
Each Election Form shall permit a holder (or the beneficial owner through
appropriate and customary documentation and instructions) of Outstanding New
Bank Shares to elect, subject to provisions of this Section 1.4, to receive, on
a per share basis, with respect to such holder's New Bank Common Stock (i) cash
(shares as to which such election is made, the "Cash Election Shares") or (ii)
TCF Common Stock (shares as to which such election is made, the "Stock Election
Shares"). To be effective, a properly completed Election Form shall be
submitted to the Exchange Agent on or before 5:00 p.m. on the 20th day following
the Mailing Date (or such other time and date as Standard and TCF may mutually
agree) (the "Election Deadline").
Standard shall provide to the Exchange Agent all information reasonably
necessary for it to perform as specified herein. An election shall have been
properly made only if the Exchange Agent shall have actually received a properly
completed Election Form by the Election Deadline. An Election Form shall be
deemed properly completed only if accompanied by one or more certificates (or
customary affidavits and indemnification regarding the loss or destruction of
such certificates or the guaranteed delivery of such certificates) representing
all shares of New Bank Common Stock covered by such Election Form, together with
duly executed transmittal materials included with the Election Form. If a
stockholder either (i) does not submit a properly completed Election Form in a
timely fashion, or (ii) revokes its Election Form prior to the Election
Deadline, the shares of New Bank Common Stock held by such stockholder shall be
designated "No Election Shares." TCF shall cause the certificates representing
New Bank Common Stock described in (ii) to be promptly returned without charge
to the person submitting the Election Form upon written request to that effect
from the person who submitted the Election Form. Subject to the terms of this
Agreement and of the Election Form, the Exchange Agent shall have reasonable
discretion to determine whether any election, revocation or change has been
properly or timely made and to disregard immaterial defects in any Election
Form, and any good
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faith decisions of the Exchange Agent regarding such matters shall be binding
and conclusive. Neither TCF nor the Exchange Agent shall be under any
obligation to notify any person of any defect in an Election Form.
(b) The "Cash Election Amount" shall be equal to the product of
the Merger Consideration Value Per Share multiplied by the total number of Cash
Election Shares. Based on the Cash Election Amount and subject to the last
paragraph of this Section 1.4(b), TCF shall cause the Exchange Agent to
allocate, within five business days after the Election Deadline, to the holders
of Outstanding New Bank Shares, the right to receive, with respect to each
Outstanding New Bank Share, cash or TCF Common Stock in the Merger as follows:
(i) If the Aggregate Cash Merger Consideration is
greater than the Cash Election Amount, then
(A) all Cash Election Shares shall be
converted into the right to receive cash,
(B) the Exchange Agent will select, on a pro
rata basis, first from among the holders of No Election
Shares and then, if necessary, from among the holders of
Stock Election Shares, a sufficient number of such shares
("Cash Designee Shares") such that the sum of Cash Designee
Shares and Cash Election Shares multiplied by the Merger
Consideration Value equals as closely as practicable the
Aggregate Cash Merger Consideration, and
(C) any Stock Election Shares and any No
Election Shares, in each case, not so selected as Cash
Designee Shares shall be converted into the right to receive
TCF Common Stock at the conversion ratio (expressed as a
decimal to the fifth place and then rounded to the nearest
whole number at such fifth place) of the Merger
Consideration Value Per Share divided by the Average TCF
Stock Price.
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(ii) If the Aggregate Cash Merger Consideration is
less than the Cash Election Amount, then
(A) all Stock Election Shares shall be
converted into the right to receive TCF Common Stock,
(B) the Exchange Agent will select, on a pro
rata basis, first from among the holders of No Election
Shares and then, if necessary, from among the holders of
Cash Election Shares, a sufficient number of such shares
(collectively, "Stock Designee Shares") such that the sum of
Stock Designee Shares multiplied by the Merger Consideration
Value Per Share equals as closely as practicable the
difference between the Cash Election Amount and the
Aggregate Cash Merger Consideration. The Stock Designee
Shares shall be converted into the right to receive TCF
Common Stock at the conversion ratio (expressed as a decimal
to the fifth place and then rounded to the nearest whole
number at such fifth place) of the Merger Consideration
Value Per Share divided by the Average TCF Stock Price, and
(C) any Cash Election Shares and any No
Election Shares, in each case, not so selected as Stock
Designee Shares shall be converted into the right to receive
cash at the Merger Consideration Value Per Share.
Notwithstanding the foregoing, if any holder of Outstanding New Bank Shares
shall either elect to receive TCF Common Stock or fail to make an election
pursuant to this Section 1.4 and tax counsel to either TCF or Standard believes
that such election or failure to elect will jeopardize the characterization of
Conversion/Reincorporation, the Merger or Subsequent Merger as a reorganization
within the meaning of Section 368 of the Code, then TCF will request that such
holder execute and deliver a shareholder tax certificate in the form reasonably
satisfactory to both such tax counsel and, if such holder fails to execute such
certificate, such holder shall receive the Merger Consideration relating to such
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shares entirely in cash without regard to the holder's election or failure to
elect, and the TCF Common Stock that such holder would have received shall be
allocated to other holders of Outstanding New Bank Shares (other than holders to
which this paragraph applies) to the extent and in lieu of cash that such other
holders would have received hereunder.
1.5 NO FRACTIONAL SHARES. No fractional shares of TCF Common Stock,
and no certificates representing such fractional shares, shall be issued upon
the surrender for exchange of certificates representing New Bank Common Stock.
In lieu of any fractional share, TCF shall pay to each holder of New Bank Common
Stock who otherwise would be entitled to receive a fractional share of TCF
Common Stock an amount of cash (without interest) equal to (a) the Average TCF
Stock Price multiplied by (b) the fractional share interest to which such holder
would otherwise be entitled.
1.6 PROCEDURE FOR EXCHANGE OF NEW BANK COMMON STOCK.
(a) On the Effective Date, TCF shall deposit, or shall cause to
be deposited, with the Exchange Agent, for exchange in accordance with this
Section 1.6, certificates representing the aggregate number of shares of TCF
Common Stock into which the Outstanding New Bank Shares shall be converted
pursuant to Section 1.3, and TCF shall cause the Resulting Institution to
deposit with the Exchange Agent cash in the amount of the Aggregate Cash Merger
Consideration (such cash and certificates are hereinafter referred to as the
"Exchange Fund"). After the Effective Date, TCF shall, on the payment or
distribution date, tender to the Exchange Agent as an addition to the Exchange
Fund all dividends and other distributions applicable to shares of TCF Common
Stock held in the Exchange Fund.
(b) Until outstanding certificates formerly representing
Standard Common Stock or New Bank Common Stock are surrendered as provided in
Section 1.4 hereof, no dividend or distribution payable to holders of record of
TCF Common Stock shall be paid to any holder of such outstanding certificates,
but upon surrender of such outstanding certificates by such holder there shall
be paid to such holder the amount of any dividends or distributions (without
interest) theretofore paid with respect to such whole shares of TCF Common
Stock, but not paid to such holder, and which dividends or distributions had a
record date occurring subsequent to the Effective Date.
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(c) After the Effective Date, there shall be no further
registration of transfers on the records of New Bank of outstanding certificates
formerly representing shares of Standard Common Stock or New Bank Common Stock
and, if a certificate formerly representing such shares is presented to New
Bank, Standard or TCF, it shall be forwarded to the Exchange Agent for
cancellation and exchange for Merger Consideration as herein provided.
(d) Any portion of the Exchange Fund consisting of shares of TCF
Common Stock or the cash dividends paid on TCF Common Stock deposited by TCF
into the Exchange Fund pursuant to Section 1.6(a) (including the proceeds of any
investments thereof) that remains unclaimed by the holders of New Bank Common
Stock for six months after the Effective Date shall be returned to TCF. Any
portion of the Exchange Fund consisting of cash deposited by the Resulting
Institution into the Exchange Fund pursuant to Section 1.6(a) (including the
proceeds of any investments thereof) that remains unclaimed by the holders of
New Bank Common Stock for six months after the Effective Date shall be returned
to the Resulting Institution. Any holders of New Bank Common Stock who have not
theretofore complied with Sections 1.4 and 1.6 shall thereafter look only to (i)
TCF for delivery and payment of the portions of the Merger Consideration that
includes shares of TCF Common Stock, the cash in lieu of fractional shares of
TCF Common Stock as provided in Section 1.5, and any unpaid dividends and
distributions on the TCF Common Stock deliverable in respect of such shares of
New Bank Common Stock that such holder holds as determined pursuant to this
Agreement, in each case, without any interest thereon, and (ii) to Resulting
Institution for payment of the cash portion of the Merger Consideration in
respect of each share of New Bank Common Stock that such holder holds as
determined pursuant to this Agreement without any interest thereon. If
outstanding certificates for shares of New Bank Common Stock are not surrendered
or the payment for them not claimed immediately prior to the date on which such
payments would otherwise escheat to or become the property of any governmental
unit or agency, the unclaimed items shall, to the extent not prohibited by
abandoned property law and any other applicable law, become the property of TCF
or the Resulting Institution, as the case may be, (and to the extent not in such
respective party's possession shall be paid over to it), free and clear of all
claims or interest of any person previously entitled to such claims.
Notwithstanding the foregoing, none of TCF, the Resulting Institution, the
Exchange Agent or any other person shall be liable to any former holder of New
Bank Common Stock for any amount delivered to a public official pursuant to
applicable abandoned property, escheat or similar laws.
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(e) In the event any certificate for New Bank Common Stock shall
have been lost, stolen or destroyed, the Exchange Agent shall issue and pay in
exchange for such lost, stolen or destroyed certificate, upon the making of an
affidavit of that fact by the holder thereof, the Merger Consideration required
pursuant to this Agreement, provided, however, that TCF, in its discretion and
as a condition precedent to the issuance and payment thereof, may require the
owner of such lost, stolen or destroyed certificate to deliver a bond in such
sum as it may direct as indemnity against any claim that may be made against
TCF, the Resulting Institution, the Exchange Agent or any other party with
respect to the certificate alleged to have been lost, stolen or destroyed.
1.7 DISSENTING SHARES.
(a) Notwithstanding any provision of this Agreement to the
contrary, the holder (a "Dissenting Shareholder") of any shares of Standard
Common Stock who has demanded and perfected such holder's demand for appraisal
of said shares (the "Dissenting Shares") in accordance with the provisions of
applicable law (if applicable law provides such rights) and at the time of the
dissolution of Standard (immediately prior to the Merger) (the "Dissolution
Time") has neither effectively withdrawn nor lost his or her right to such
appraisal shall not have a right to receive the Merger Consideration for such
Dissenting Shares pursuant to Section 1.3 above and shall only be entitled to
such rights as are granted by applicable law. The Resulting Institution shall
make any and all payments due to holders of Dissenting Shares.
(b) Notwithstanding the provisions of Section 1.7(a) above, if
any Dissenting Shareholder demanding appraisal of such Dissenting Shareholder's
Dissenting Shares under applicable law shall effectively withdraw or lose
(through failure to perfect or otherwise) his or her right to appraisal, then as
of the Dissolution Time or the occurrence of such event, whichever later occurs,
such Dissenting Shares shall automatically be converted into and represent only
the right to receive the Merger Consideration as provided in Section 1.3 and as
allocated pursuant to Section 1.4 upon surrender of the certificate or
certificates representing such Dissenting Shares.
(c) Standard shall give TCF prompt notice of any demands by a
Dissenting Shareholder for payment, or notices of intent to demand payment
received by Standard, and TCF shall have the right to participate in all
negotiations and proceedings with respect to such demands. Standard shall not,
except with the prior written consent of TCF (which will not be unreasonably
withheld
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or delayed) or as otherwise required by law, make any payment with respect to,
or settle, or offer to settle, any such demands.
1.8 EFFECT ON COMMON STOCK OF MERGER SUB. To effectuate the Merger,
and subject to the terms and conditions of this Agreement, at the Effective Time
all issued and outstanding shares of Merger Sub held by TCF will remain issued
and outstanding and shall constitute all of the issued and outstanding shares of
the Resulting Institution.
1.9 CORPORATE MATTERS. At the Effective Time:
(a) CHARTER. The Charter (as defined in Section 2.1) of Merger
Sub, as in effect at the Effective Time, shall be the Charter of the Resulting
Institution until thereafter amended in accordance with applicable law.
(b) BYLAWS. The Bylaws of Merger Sub as in effect immediately
prior to the Effective Time, shall be the Bylaws of the Resulting Institution
until thereafter amended in accordance with applicable law.
(c) BOARD OF DIRECTORS. Subject to obtaining any requisite
approval of the Bank Authority, the number of directors on the Board of
Directors of the Resulting Institution shall be increased to the number of
directors of Merger Sub immediately prior to the Effective Time (not to exceed
ten) plus the number of directors of Standard (not to exceed nine) immediately
prior to the Effective Time. Upon consummation of the Merger and subject to
receipt of any requisite approvals of the Bank Authority, the directors on the
Board of Directors of the Resulting Institution shall consist of the directors
on the Boards of Directors of Merger Sub and Standard immediately prior to the
Dissolution Time and the Effective Time, subject to the right of the
shareholders of the Resulting Institution to remove and elect directors of the
Resulting Institution. On the Effective Date, Standard shall cause to be
delivered to TCF the resignations of the directors of Standard, Bank, and New
Bank and the other Standard Subsidiaries (as defined in Section 3.7) who are not
to continue as a director on the Board of Directors of the Resulting
Institution. In addition, TCF shall cause its Board of Directors to be expanded
by one (1) seat as of the Effective Time and such directorship shall, as of such
time, be filled by one director of Standard mutually acceptable to TCF and
Standard; it being the intention of the parties that such director will be David
H. Mackiewich.
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(d) OFFICERS. The officers of the Resulting Institution
immediately after the Effective Time will be as follows: (i) the Executive
Chairman shall be David H. Mackiewich; (ii) the President shall be designated by
TCF; and (iii) the other officers shall be the officers of the Resulting
Institution immediately prior to the Effective Time designated by TCF, the
officers of Standard who choose to continue with the Resulting Institution on
the Effective Date as approved by TCF, and such other officers as the Board of
Directors of the Resulting Institution may elect on the Effective Date until
their successors are elected and qualified and subject to the right of the Board
of Directors of the Resulting Institution to remove and elect officers after the
Effective Date.
1.10 TAX CONSEQUENCES. It is intended that the
Conversion/Reincorporation, the Merger and Subsequent Merger shall constitute a
reorganization within the meaning of Section 368(a) of the Code, and that this
Agreement shall constitute a "plan of reorganization" for purposes of the Code.
1.11 ALTERNATIVE STRUCTURE. TCF may structure the acquisition of
Standard contemplated by this Agreement in any other form of reorganization or
combination as TCF may direct; provided that (i) there are no material adverse
federal income tax consequences to Standard, TCF, Merger Sub or any other
relevant entities or to the shareholders of Standard, TCF, Merger Sub or the
Resulting Institution as a result of such modification and counsel to each party
delivers an opinion to such effect, (ii) the consideration to be received by the
shareholders of Standard is not changed or altered and (iii) such modification
will not materially delay or jeopardize receipt of any required regulatory
approvals.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF TCF
TCF hereby represents and warrants to Standard as follows:
2.1 ORGANIZATION AND QUALIFICATION. TCF is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware, and has the requisite corporate power to carry on its business as now
conducted. TCF is registered as a savings and loan holding company with the
Office of Thrift Supervision ("OTS") under the Home Owners' Loan Act (the
"HOLA") and is authorized under the HOLA to carry on its business as now
conducted. Each of the Material TCF Subsidiaries (as defined in Section 2.6 and
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identified on Schedule 2.6) is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of its incorporation.
TCF has filed an application with the Federal Reserve Board to become a bank
holding company under the Bank Holding Company Act (the "BHCA"), and the
foregoing representation is subject to modification upon approval of such
application and consummation of the conversion of TCF's savings bank
subsidiaries to national banks to the effect that TCF will then be a bank
holding company under the BHCA. The copies of the Charter (as defined below)
and Bylaws of TCF and each Material TCF Subsidiary which have been made
available to Standard prior to the date of this Agreement are correct and
complete copies of such documents as in effect as of the date of this Agreement.
As used in this Agreement, the term "Charter" with respect to any corporation or
depository institution shall mean those instruments that at that time constitute
its charter as filed or recorded under the general corporation or other
applicable law of the jurisdiction of its incorporation or organization,
including the articles or certificate of incorporation or association and any
and all amendments thereto. TCF and each of the TCF Subsidiaries is licensed or
qualified to do business in every jurisdiction in which the nature of its
business or its ownership of property requires it to be licensed or qualified,
except where the failure to be so licensed or qualified would not have a
Material Adverse Effect on TCF. As used in this Agreement, the term "Material
Adverse Effect" with respect to an entity means any condition, event, change or
occurrence that has or may reasonably be expected to have a material adverse
effect on the business, operations, results of operations or financial condition
of such entity on a consolidated basis, it being understood that a Material
Adverse Effect shall not include a change with respect to, or effect on, such
entity resulting from a change in law, rule, regulation, generally accepted
accounting principles ("GAAP") or regulatory accounting principles, as such
would apply to the financial statements of such entity, a change with respect
to, or effect on, such entity resulting from expenses incurred in connection
with this Agreement or the transactions contemplated by this Agreement, or a
change with respect to, or effect on, such entity resulting from any other
matter affecting depository institutions generally (including without
limitation, savings and loan holding companies and thrifts), including, without
limitation, changes in general economic conditions and changes in prevailing
interest and deposit rates. At the Effective Time, Merger Sub will be duly
organized and validly existing and will have the requisite corporate power and
authority to carry on its business. The Charter and Bylaws of Merger Sub as in
effect on the date hereof are included in Schedule 2.1; provided that such
Charter and Bylaws will be modified as TCF may determine in connection with its
conversion to a national bank.
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2.2 AUTHORITY RELATIVE TO THIS AGREEMENT; NON-CONTRAVENTION. TCF has
the requisite corporate power and authority to enter into this Agreement and to
carry out its obligations hereunder. The execution and delivery of this
Agreement by TCF and the Articles of Merger by Merger Sub and the consummation
by TCF and Merger Sub of the transactions contemplated hereby have been duly
authorized by the Board of Directors of TCF and, in the case of Merger Sub, will
be duly authorized by the Board of Directors of Merger Sub and by the Board of
Directors of TCF, acting on behalf of TCF as the sole shareholder of Merger Sub,
and no other corporate proceedings on the part of TCF are necessary to authorize
this Agreement and the consummation of the transactions contemplated hereby.
This Agreement has been duly executed and delivered by TCF and, assuming it is a
valid and binding obligation of Standard, constitutes the valid and binding
obligation of TCF enforceable in accordance with its terms, except as
enforcement may be limited by general principles of equity, whether applied in a
court of law or a court of equity and by bankruptcy, insolvency and similar laws
affecting creditors' rights and remedies generally. Except as set forth in
Schedule 2.2, none of TCF or the TCF Subsidiaries is subject to, or obligated
under, any provision of (a) its Charter or Bylaws, (b) any agreement,
arrangement or understanding, (c) any license, franchise or permit or (d)
subject to obtaining the approvals referred to in the next sentence, any law,
regulation, order, judgment or decree, which would be breached or violated, or
in respect of which a right of termination or acceleration or any encumbrance on
any of its assets would be created, by the execution, delivery or performance of
this Agreement, the Articles of Merger or the consummation of the transactions
contemplated hereby, other than any such breaches, violations, rights of
termination or acceleration or encumbrances which will not, in the aggregate,
have a Material Adverse Effect on the TCF. Except for (a) the filing of
applications and notices with the OCC under the Bank Merger Act, the Federal
Reserve Board under the BHCA, the OTS under the HOLA and the Federal Deposit
Insurance Act ("FDIA"), and approval of such applications and notices, (b) the
filings required under the Hart-Scott-Rodino Antitrust Improvements Act of 1976
("HSR"), (c) the filing and effectiveness with the Securities and Exchange
Commission (the "SEC") of a Registration Statement on Form S-4 relating to the
TCF Common Stock to be issued in connection with this Agreement and the
transactions contemplated hereby, and effectiveness of such Registration
Statement, (d) requisite approvals under applicable blue sky laws, (e) the
filing of the Articles of Merger with the Bank Authority, and (f) such filings,
authorizations or approvals as may be set forth in Schedule 2.2, no
authorization, consent or approval of, or filing with, any public body, court or
authority is necessary on the part of TCF, any of the TCF Subsidiaries or Merger
Sub for the consumma-
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tion by TCF and Merger Sub of the transactions contemplated by this Agreement,
except for such authorizations, consents, approvals and filings as to which the
failure to obtain or make the same will not, in the aggregate, have a Material
Adverse Effect on TCF or materially adversely affect the consummation of the
transactions contemplated hereby.
2.3 CAPITALIZATION. The authorized, issued and outstanding shares of
capital stock of TCF as of the date hereof is correctly set forth on Schedule
2.3. The issued and outstanding shares of capital stock of each of TCF and the
Material TCF Subsidiaries are duly authorized, validly issued, fully paid and
nonassessable and have not been issued in violation of any preemptive rights.
Except as disclosed on Schedule 2.3, there are as of the date hereof, no
options, warrants, conversion privileges or other rights, agreements,
arrangements or commitments obligating TCF or any Material TCF Subsidiary to
issue, sell, purchase or redeem any shares of its capital stock or securities or
obligations of any kind convertible into or exchangeable for any shares of its
capital stock or of any of its affiliates, nor are there any stock appreciation,
phantom or similar rights outstanding based upon the book value or any other
attribute of any of the capital stock of TCF or any Material TCF Subsidiary or
the earnings or other attributes of TCF or any Material TCF Subsidiary. TCF has
made available to Standard true and correct copies of all such agreements,
arrangements (including all stock plans, but excluding individual stock option
or restricted stock agreements) or commitments. No bonds, debentures, notes or
other indebtedness having the right to vote (or convertible into or exercisable
for securities having the right to vote) on any matters on which shareholders of
TCF or any TCF Subsidiary may vote are issued or outstanding except as set forth
in Schedule 2.3.
2.4 1934 ACT REPORTS. Prior to the execution of this Agreement, TCF
has delivered or made available to Standard complete and accurate copies of (a)
TCF's Annual Reports on Form 10-K for the years ended December 31, 1993, 1994
and 1995 (the "TCF 10-K Reports") as filed with the SEC, (b) all TCF proxy
statements and annual reports to shareholders used in connection with meetings
of TCF shareholders held since January 1, 1994 and (c) TCF's Quarterly Reports
on Form 10-Q for the quarters ended March 31, 1996, June 30, 1996 and September
30, 1996 (the "TCF 10-Q Reports," and together with the TCF 10-K Reports, the
"TCF SEC Reports") as filed with the SEC. As of their respective dates or as
subsequently amended prior to the date hereof, such documents (i) did not
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not
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misleading, and (ii) complied as to form in all material respects with the
applicable rules and regulations of the SEC. Since January 1, 1994, TCF has
filed in a timely manner all reports that it was required to file with the SEC
pursuant to the Securities and Exchange Act of 1934, as amended, and the rules
and regulations promulgated thereunder (the "1934 Act").
2.5 FINANCIAL STATEMENTS.
(a) Attached hereto as Schedule 2.5(a) is a copy of TCF's
audited financial statements for the year ended December 31, 1996 (the "1996 TCF
Financial Statements"). The TCF financial statements (including any footnotes
thereto) contained in the TCF SEC Reports and the 1996 TCF Financial Statements
have been prepared in accordance with GAAP applied on a consistent basis during
the periods involved, except as indicated in the notes thereto or, in the case
of unaudited statements, as permitted by Form 10-Q, and fairly present the
consolidated financial position of TCF and the TCF Subsidiaries as of the dates
thereof and the consolidated results of operations, changes in stockholders'
equity and cash flows for the periods then ended (subject, in the case of the
unaudited statements, to recurring year end adjustments normal in nature and
amount and the absence of footnotes).
(b) In TCF's reasonable judgment, the allowance for loan losses
reflected in TCF's financial statements (including footnotes thereto) contained
in the TCF SEC Reports and the 1996 TCF Financial Statements is and will be, in
the case of the financial statements delivered by TCF to Standard pursuant to
Section 5.16 hereof, adequate in all material respects as of their respective
dates under GAAP consistently applied except for the adoption of SFAS No. 114
for periods prior to January 1, 1995. The real estate acquired through
foreclosure or deed in lieu of foreclosure ("REO") reflected in TCF's financial
statements (including footnotes thereto) contained in the TCF SEC Reports and
the 1996 TCF Financial Statements is and will be, in the case of the financial
statements delivered by TCF to Standard pursuant to Section 5.16 hereof, carried
at the lower of cost or fair value, or the lower of cost or net realizable
value, in accordance with GAAP consistently applied.
(c) TCF has furnished Standard with copies of the balance sheets
of each Material TCF Subsidiary as of December 31, 1993, 1994 and 1995 and as of
March 31, 1996, June 30, 1996 and September 30, 1996 and the related statements
of income, changes in stockholders' equity and cash flows for the years and
periods then ended (collectively, together with footnotes thereof, if any,
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the "TCF Subsidiaries Financial Statements"). The TCF Subsidiaries Financial
Statements have been prepared in accordance with GAAP applied on a consistent
basis during the periods involved and fairly present the financial position of
the respective Material TCF Subsidiary (subject, in the case of unaudited
statements, to recurring year-end adjustments normal in nature and amount and
the absence of footnotes).
(d) The books and records of TCF and the Material TCF
Subsidiaries have been, and are being, maintained in material compliance with
applicable legal and accounting requirements, and such books and records
accurately reflect in all material respects all material transactions
customarily reflected in such books and records in respect of the business,
assets, liabilities and affairs of TCF on a consolidated basis.
2.6 SUBSIDIARIES. Schedule 2.6 correctly sets forth the name and
jurisdiction of incorporation of each corporation, fifty percent or more of the
voting securities of which is owned directly or indirectly by TCF (each a "TCF
Subsidiary" and collectively the "TCF Subsidiaries") and identifies the Material
TCF Subsidiaries. All of the issued and outstanding shares of capital stock of
each TCF Subsidiary are owned directly or indirectly by TCF free and clear of
any lien, pledge, security interest, encumbrance or charge of any kind. Except
for the stock of the TCF Subsidiaries directly or indirectly owned by TCF or as
otherwise disclosed on Schedule 2.6, neither TCF nor any TCF Subsidiary owns any
stock, partnership interest, joint venture interest or any other security issued
by any other corporation, organization or entity which is material to the
operations, assets or liabilities of TCF on a consolidated basis, except Federal
Home Loan Bank stock and readily marketable securities owned by TCF or a TCF
Subsidiary in the ordinary course of business.
2.7 ABSENCE OF UNDISCLOSED LIABILITIES. All of the obligations or
liabilities (whether accrued, absolute, contingent, unliquidated or otherwise,
whether due or to become due, and regardless of when asserted) arising out of
transactions or events heretofore entered into, or any action or inaction,
including Taxes (as defined in Section 3.12) with respect to or based upon
transactions or events heretofore occurring that are required to be reflected,
disclosed or reserved against in audited consolidated financial statements in
accordance with GAAP ("Liabilities") have, in the case of TCF and the TCF
Subsidiaries, been so reflected, disclosed or reserved against in the audited
balance sheet as of December 31, 1996 (the "Latest TCF Balance Sheet Date")
included in the 1996 TCF Financial Statements, and TCF and the TCF Subsidiaries
have no other Liabilities except (a) Liabilities incurred since the Latest TCF
Balance Sheet Date in the
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ordinary course of business, (b) as otherwise disclosed on Schedule 2.7, (c)
Liabilities incurred pursuant to this Agreement or in connection with the
transactions contemplated hereunder, (d) other Liabilities which, in aggregate,
are not material or (e) matters disclosed in any Form 8-K filings by TCF after
December 31, 1996. As of December 31, 1996, there were no agreements or
commitments binding TCF or any TCF Subsidiary to extend credit to any person in
the amount of $1,000,000 or more, except (A) as set forth on Schedule 2.7, and
(B) one to four family residential mortgages.
2.8 NO MATERIAL ADVERSE CHANGES. Since December 31, 1996, there has
been no event, occurrence or development in the business of TCF or the TCF
Subsidiaries that, taken together with other events, occurrences and
developments with respect to such business, has had or would reasonably be
expected to have a Material Adverse Effect on TCF or materially adversely affect
the ability of TCF to consummate the transactions contemplated hereby.
2.9 ABSENCE OF CERTAIN DEVELOPMENTS. Except as disclosed in any
Current Reports of TCF on Form 8-K filed prior to the date of this Agreement, or
on Schedule 2.9 unless otherwise expressly contemplated or permitted by this
Agreement, since December 31, 1996 to the date hereof, TCF has not:
(a) issued or sold any of its equity securities, securities
convertible into or exchangeable for its equity securities, warrants, options or
other rights to acquire its equity securities, except (i) deposit and other bank
obligations in the ordinary course of business, (ii) pursuant to the exercise of
stock options and warrants issued under, or otherwise pursuant to, the
agreements, arrangements or commitments identified on Schedule 2.3, or (iii) the
grant to employees and directors of stock options and restricted stock under
TCF's 1995 Incentive Stock Program and Director Stock Program (the "TCF Stock
Plans") in the ordinary course of business;
(b) redeemed, purchased, acquired or offered to acquire,
directly or indirectly, any shares of capital stock of TCF or any of the TCF
Subsidiaries or other securities of TCF or any of the TCF Subsidiaries, except
pursuant to the exercise of stock options and warrants issued under, or
otherwise pursuant to, the agreements, arrangements or commitments identified on
Schedule 2.3, or stock options issued in the ordinary course of business after
the date hereof;
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(c) split, combined or reclassified any of its outstanding
shares of capital stock or declared, set aside or paid any dividends or other
distribution payable in cash, property or otherwise with respect to any shares
of its capital stock or other securities, except (i) dividends paid in cash by
the TCF Subsidiaries which are wholly owned by TCF to TCF or to another wholly
owned TCF Subsidiary and (ii) the regular quarterly cash dividend of $.1875 for
each share of TCF Common Stock;
(d) borrowed any amount or incurred or became subject to any
material liability in excess of $1,000,000 except borrowings or liabilities
incurred in the ordinary course of business;
(e) sold, assigned or transferred any assets with an aggregate
market value in excess of $150,000 for less than fair consideration, except (i)
in the ordinary course of business, (ii) liens and encumbrances for current
property taxes not yet due and payable or being contested in good faith, and
(iii) liens and encumbrances which do not materially affect the value of, or
materially interfere with, the current use or ability to convey, the property
subject thereof or affected thereby;
(f) cancelled any material debts or claims or waived any rights
of material value, except in the ordinary course of business or upon payment in
full;
(g) suffered any theft, damage, destruction or loss of or to any
property or properties owned or used by it, whether or not covered by insurance,
which would, individually or in the aggregate, have a Material Adverse Effect on
TCF;
(h) acquired (by merger, exchange, consolidation, acquisition of
stock or assets or otherwise) any corporation, partnership, joint venture or
other business organization or division or material assets thereof, or assets or
deposits that are material to TCF on a consolidated basis, except in exchange
for debt previously contracted, including REO;
(i) taken any other material action or entered into any material
transaction other than in the ordinary course of business; or
(j) agreed to do any of the foregoing.
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2.10 LITIGATION. Except as set forth on Schedule 2.10 as of the date
hereof, there are no actions, suits, proceedings, orders, audits or
investigations pending or, to the Knowledge of TCF, threatened against TCF or
any of the TCF Subsidiaries, at law or in equity, or before or by any federal,
state or other governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign in which the adverse party or parties seeks
or could be reasonably expected to receive recovery from TCF or any TCF
Subsidiary, or their respective properties or assets, of an amount or value in
excess of $350,000 or injunctive or other equitable relief. As used in this
Agreement, the terms "Knowledge" or "Known" with respect to an entity means the
knowledge of management officials of such entity having responsibility for the
matter in question.
2.11 NO BROKERS OR FINDERS. Except as disclosed on Schedule 2.11,
there are no claims for brokerage commissions, finders' fees, investment
advisory fees or similar compensation in connection with the transactions
contemplated by this Agreement based on any arrangement, understanding,
commitment or agreement made by or on behalf of TCF or any of the TCF
Subsidiaries.
2.12 COMPLIANCE WITH LAWS; PERMITS. Each of TCF and the TCF
Subsidiaries has complied with all applicable laws and regulations of foreign,
federal, state and local governments and all agencies thereof which affect the
business or any owned or leased properties or employee benefit plans of TCF or
any of the TCF Subsidiaries and to which TCF or any of the TCF Subsidiaries may
be subject (including, without limitation, the Occupational Safety and Health
Act of 1970, the Employee Retirement Income Security Act of 1974 ("ERISA"), the
HOLA (if applicable), the BHCA (if applicable), the National Bank Act (if
applicable), the Federal Deposit Insurance Act (the "FDIA"), the Real Estate
Settlement Procedures Act, the Home Mortgage Disclosure Act of 1975, the Fair
Housing Act and the Equal Credit Opportunity Act, each as amended, and any other
state or federal acts (including rules and regulations thereunder) regulating or
otherwise affecting employee health and safety or the environment), except where
failure to so comply would not, individually or in the aggregate, have a
Material Adverse Effect on TCF or adversely affect TCF's ability to consummate
the transactions contemplated hereby; and, to the Knowledge of TCF, no claims
have been filed by any such governments or agencies against TCF or any of the
TCF Subsidiaries alleging such a violation of any such law or regulation which
have not been resolved to the satisfaction of such governments or agencies which
would, individually or in the aggregate, have a Material Adverse Effect on TCF
or adversely affect TCF's ability to consummate the transactions contemplated
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hereby. Each of TCF and the TCF Subsidiaries holds all of the permits,
licenses, certificates and other authorizations of foreign, federal, state and
local governmental agencies required for the conduct of its business as
currently conducted, except where failure to obtain such authorizations would
not, individually or in the aggregate, have a Material Adverse Effect on TCF or
adversely affect the ability of TCF to consummate the transactions contemplated
hereby. Neither TCF nor any of the TCF Subsidiaries is subject to any cease and
desist order, written agreement or memorandum of understanding with, or is a
party to any commitment letter or similar undertaking to, or is subject to any
order or directive by, or is a recipient of any supervisory agreement letter
from, or has adopted any board resolutions at the request of, any Bank Regulator
(as defined herein) which would have a Material Adverse Effect on TCF nor have
any of TCF or any of the TCF Subsidiaries been advised by any Bank Regulator
that it is contemplating issuing or requesting (or is considering the
appropriateness of issuing or requesting) any such order, directive, written
agreement, memorandum of understanding, supervisory letter, commitment letter,
board resolutions or similar undertaking. A "Bank Regulator" means any federal
or state governmental authorities charged with the supervision or regulation of
the person or persons with respect to which such term is used (individually, a
"Bank Regulator" and collectively, the "Bank Regulators").
2.13 PROSPECTUS/PROXY STATEMENT. At the time the Registration
Statement (as defined in Section 5.9(a) hereof) becomes effective and at the
time the Prospectus/Proxy Statement (as defined in Section 5.9(a) hereof) is
mailed to the shareholders of Standard in order to obtain approvals referred to
in Section 5.19 and at all times subsequent to such mailing up to and including
the times of such approval, the Registration Statement and the Prospectus/Proxy
Statement (including any amendments or supplements thereto), with respect to all
information set forth therein relating to TCF (including the TCF Subsidiaries)
and its shareholders, TCF Common Stock, this Agreement, the Articles of Merger,
the Merger and all other transactions contemplated hereby, will (a) comply in
all material respects with applicable provisions of the Securities Act of 1933,
as amended, and the rules and regulations promulgated thereunder ("1933 Act")
and the 1934 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, except that, in each case, no such representations
shall apply to any written information or representations under this Agreement,
including financial statements, of or provided by Standard for such
Prospectus/Proxy Statement.
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2.14 VALIDITY OF TCF COMMON STOCK. The shares of TCF Common Stock to
be issued pursuant to this Agreement and the transactions contemplated hereby
will be, when issued, duly authorized, validly issued, fully paid and
nonassessable.
2.15 REPORTS AND FILINGS. Since January 1, 1994, each of the TCF and
the TCF Subsidiaries have filed each report or other filing it was required to
file with any Banking Regulator having jurisdiction over it (together with all
exhibits thereto, the "TCF Regulatory Reports"), except for such reports and
filings which the failure to so file would not have a Material Adverse Effect on
TCF or adversely affect the ability of the TCF to consummate the transactions
contemplated hereby. As of their respective dates or as subsequently amended
prior to the date hereof, each of the TCF Regulatory Reports was true and
correct in all material respects and complied in all material respects with
applicable laws, rules and regulations.
2.16 EMPLOYEE BENEFIT PLANS. TCF is not aware of any facts or
circumstances with respect to any TCF Employee Benefit Plan, as defined herein,
that could reasonably be expected to have a Material Adverse Effect on TCF. For
purposes of this Section 2.16, a "TCF Employee Benefit Plan" is any plan,
policy, practice, arrangement or agreement providing for benefits, compensation
(other than current cash compensation) or perquisites to any current or former
employee or independent contractor, or the dependents or family members of any
such current or former employee or independent contractor, with respect to which
TCF, any TCF Subsidiary or any other person who under applicable law would,
together with TCF, be deemed to be a single employer, could have any liability.
2.17 PROPERTIES. Neither TCF nor any TCF Subsidiary nor any of the
real property owned by TCF or any TCF Subsidiary is in violation of any
applicable zoning ordinance or other law, regulation or requirement relating to
the operation of any properties used in the operation of its business, including
applicable environmental protection laws and regulations, which violation would,
individually or in the aggregate, have a Material Adverse Effect on TCF, and
neither TCF nor any TCF Subsidiary has received any notice of any such violation
which has not been remedied or cured, or of the existence of any condemnation
proceeding with respect to any material real properties owned or leased by TCF
or any TCF Subsidiary. To the Knowledge of TCF, no hazardous substances,
hazardous wastes, pollutants or contaminants have been deposited or disposed of
in, on or under any real properties currently owned, managed or controlled by
TCF or any TCF Subsidiary, except in compliance with applicable
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law or where such deposit or disposal is not reasonably likely to result in a
Material Adverse Effect on TCF.
2.18 INTEREST RATE RISK MANAGEMENT INSTRUMENTS.
(a) Schedule 2.18 contains true, correct and complete copies of
all interest rate swaps, caps and floors agreements, and any similar interest
rate risk management agreements to which TCF or any TCF Subsidiary is a party or
by which any of their properties or assets may be bound.
(b) All interest rate swaps, floors, and option agreements and
other interest rate risk management arrangements to which TCF or any TCF
Subsidiary 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 TCF's
Knowledge, in accordance with prudent banking practice and applicable rules,
regulations, and policies of any Bank Regulator in all material respects and
with financially responsible counterparties and are legal, valid and binding
obligations enforceable in accordance with their terms (except as may be limited
by bankruptcy, insolvency, moratorium, reorganization or similar laws affecting
the rights of creditors generally and the availability of equitable remedies),
and are in full force and effect. TCF and each TCF Subsidiary has duly performed
in all material respects all of its obligations thereunder to the extent that
such obligations to perform have accrued. To TCF's Knowledge, there are no
material breaches, violations, or defaults or allegations or assertions of such
by any party thereunder.
2.19 FAIRNESS OPINION. TCF has received a written opinion in a form
reasonably acceptable to TCF from Piper Jaffray, Inc. to the effect that the
Merger is fair from a financial point of view to holders of TCF Common Stock.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF STANDARD
Standard hereby represents and warrants to TCF as follows:
3.1 ORGANIZATION AND QUALIFICATION. Standard is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware, and has the requisite corporate power to carry on its business as now
conducted. Bank is a federally chartered savings bank duly organized, validly
existing and in good standing under the laws of the United States and has the
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requisite corporate power to carry on its business as now conducted. Each of
Standard Subsidiaries (as defined in Section 3.7 hereof) is a corporation duly
organized, validly existing and in good standing under the laws of the state of
its incorporation. The copies of the Charter and Bylaws of Standard and each
Standard Subsidiary which have been made available to TCF prior to the date of
this Agreement are correct and complete copies of such documents as in effect as
of the date of this Agreement. Each of Standard and each Standard Subsidiary is
licensed or qualified to do business in every jurisdiction in which the nature
of its business or its ownership of property requires it to be licensed or
qualified, except where the failure to be so licensed or qualified would not
have a Material Adverse Effect on Standard.
3.2 AUTHORITY RELATIVE TO THIS AGREEMENT; NON-CONTRAVENTION.
Standard has the requisite corporate power and authority to enter into this
Agreement and to carry out its obligations hereunder. New Bank will have the
requisite corporate power and authority to enter into the Articles of Merger and
to carry out its obligations thereunder. The execution and delivery of (i) this
Agreement by Standard and the consummation by Standard of the transactions
contemplated hereby have been duly authorized by the Board of Directors of
Standard and (ii) the Articles of Merger by New Bank and the transactions
contemplated thereby will, as of the Effective Date, be duly authorized by the
Board of Directors of New Bank, and except for approval of this Agreement, the
Conversion/Reincorporation and the Merger by the requisite vote of Standard's
shareholders, no other corporate proceedings on the part of Standard or any
Standard Subsidiaries are necessary to authorize this Agreement and the
consummation of the transactions contemplated hereby. This Agreement has been
duly executed and delivered by Standard and, assuming it is a valid and binding
obligation of TCF, constitutes a valid and binding obligation of Standard
enforceable in accordance with its terms except as enforcement may be limited by
general principles of equity whether applied in a court of law or a court of
equity and by bankruptcy, insolvency and similar laws affecting creditors'
rights and remedies generally. Except as set forth in Schedule 3.2, none of
Standard or any of the Standard Subsidiaries is subject to, or obligated under,
any provision of (a) its Charter or Bylaws, (b) any agreement, arrangement or
understanding, (c) any license, franchise or permit or (d) subject to obtaining
the approvals referred to in the next sentence, any law, regulation, order,
judgment or decree, which would be breached or violated, or in respect of which
a right of termination or acceleration or any encumbrance on any of its assets
would be created, by the execution, delivery or performance of this Agreement,
the Articles of Merger or the Conversion/Reincorporation or the consummation of
the transactions contemplated
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hereby or thereby, other than any such breaches, violations, rights of
termination or acceleration or encumbrances which will not, in the aggregate,
have a Material Adverse Effect on Standard. Except for (a) the filings,
notices, consents and approvals described in Section 2.2 hereof and (b) such
filings, authorizations or approvals as may be set forth in Schedule 3.2, no
authorization, consent or approval of, or filing with, any public body, court or
authority is necessary on the part of Standard or any of the Standard
Subsidiaries for the consummation by Standard or any of the Standard
Subsidiaries of the transactions contemplated by this Agreement, except for such
authorizations, consents, approvals and filings as to which the failure to
obtain or make the same will not, in the aggregate, have a Material Adverse
Effect on Standard or materially adversely affect the consummation of the
transactions contemplated hereby.
3.3 CAPITALIZATION. The authorized, issued and outstanding shares of
capital stock of each of Standard and the Standard Subsidiaries as of the date
hereof is correctly set forth on Schedule 3.3. The number of outstanding shares
of Standard Common Stock identified in Schedule 3.3 includes (i) the aggregate
number of shares of Standard Common Stock under the MRRP which have been granted
(as set forth on Schedule 3.3) and which vest upon consummation of the Merger as
provided in Section 1.3(c), and (ii) all allocated and unallocated shares of
Standard Common Stock held by the ESOP (as defined in Section 5.12 below). The
issued and outstanding shares of capital stock of each of Standard and the
Standard Subsidiaries are duly authorized, validly issued, fully paid and
nonassessable and have not been issued in violation of any preemptive rights.
Except as disclosed on Schedule 3.3, there are no options, warrants, conversion
privileges or other rights, agreements, arrangements or commitments obligating
Standard or any Standard Subsidiary to issue, sell, purchase or redeem any
shares of its capital stock or securities or obligations of any kind convertible
into or exchangeable for any shares of its capital stock or of any of its
subsidiaries or affiliates, nor are there any stock appreciation, phantom or
similar rights outstanding based upon the book value or any other attribute of
any of the capital stock of Standard or any of the Standard Subsidiaries, or the
earnings or other attributes of Standard or any of the Standard Subsidiaries.
Schedule 3.3 contains true and correct copies of all such agreements,
arrangements (including all stock plans, but excluding individual stock option
or restricted stock agreements) or commitments. No bonds, debentures, notes or
other indebtedness having the right to vote (or convertible into or exercisable
for securities having the right to vote) on any matters on which shareholders of
Standard or any Standard Subsidiary may vote are issued or outstanding except as
set forth in Schedule 3.3.
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3.4 1934 ACT REPORTS AND REGULATORY REPORTS. Prior to the execution
of this Agreement, Standard has delivered or made available to TCF complete and
accurate copies of (a) Standard's Annual Reports on Form 10-K for the years
ended December 31, 1994 and 1995 (the "Standard 10-K Reports") as filed with the
SEC, (b) all Standard proxy statements and annual reports to shareholders used
in connection with meetings of Standard shareholders held since January 1, 1994
and (c) Standard's Quarterly Reports on Form 10-Q for the quarters ended March
31, 1996, June 30, 1996 and September 30, 1996 (the "Standard 10-Q Reports," and
together with the Standard 10-K Reports, the "Standard SEC Reports") as filed
with the SEC. As of their respective dates or as subsequently amended prior to
the date hereof, such documents (i) did not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statement therein, in light of the circumstances under
which they were made, not misleading and (ii) complied as to form in all
material respects with the applicable rules and regulations of the SEC. Prior
to the execution of this Agreement, Standard has delivered or made available to
TCF complete and accurate copies of all reports that Bank was required to file
with the OTS (the "Bank Regulatory Reports") since January 1, 1994. Since
January 1, 1994, Bank has filed in a timely manner all Bank Regulatory Reports
that it was required to file with the OTS. As of their respective dates or as
subsequently amended prior to the date hereof, each of the Bank Regulatory
Reports (i) was true and correct in all material respects, and (ii) complied as
to form in all material respects with applicable rules and regulations of the
OTS.
3.5 FINANCIAL STATEMENTS.
(a) Attached hereto as Schedule 3.5(a) is a copy of Standard's
audited financial statements for the year ended December 31, 1996 (the "Standard
1996 Financial Statements"). The financial statements (including any footnotes
thereto) contained in the Standard SEC Reports, the Standard 1996 Financial
Statements and the Bank Regulatory Reports have been prepared in accordance with
GAAP or, in the case of the Bank Regulatory Statements, the rules and
regulations of the OTS, applied on a consistent basis during the periods
involved, except as indicated in the notes thereto or, in the case of unaudited
statements, as permitted by Form 10-Q, and fairly present the financial position
of Standard or Bank, as the case may be, as of the dates thereof and the results
of operations, changes in stockholders' equity and cash flows for the periods
then ended (subject, in the case of the unaudited statements, to recurring year
end adjustments normal in nature and amount and the absence of footnotes).
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(b) In Standard's reasonable judgment, the allowance for loan
losses reflected in the financial statements (including footnotes thereto)
contained in the Standard SEC Reports, the Standard 1996 Financial Statements
and the Bank Regulatory Reports is and will be, in the case of the financial
statements delivered by Standard or Bank to TCF pursuant to Section 5.3 hereof,
adequate in all material respects as of their respective dates under GAAP
consistently applied except for the adoption of SFAS No. 114 for periods prior
to January 1, 1995. The REO reflected in the financial statements (including
footnotes thereto) contained in the Standard SEC Reports, the Standard 1996
Financial Statements and the Bank Regulatory Reports is and will be, in the case
of the financial statements delivered by Standard or Bank to TCF pursuant to
Section 5.3 hereof, carried at the lower of cost or fair value, or the lower of
cost or net realizable value, in accordance with GAAP consistently applied.
(c) Standard has furnished TCF with copies of the balance sheets
of Bank as of December 31, 1994, 1995 and 1996, and the related statements of
income, changes in shareholder's equity and cash flows for the years and periods
then ended (collectively, together with any footnotes thereto, the "Bank
Financial Statements"). The Bank Financial Statements have been prepared in
accordance with GAAP applied on a consistent basis during the periods involved
and fairly present the financial position of Bank (subject, in the case of
interim statements, to recurring year end adjustments normal in nature and
amount and the absence of footnotes).
(d) The books and records of Standard and the Standard
Subsidiaries have been, and are being, maintained in material compliance with
applicable legal and accounting requirements, and such books and records
accurately reflect in all material respects all material transactions
customarily reflected in such books and records in respect of the business,
assets, liabilities and affairs of Standard on a consolidated basis.
3.6 LOANS.
(a) The documentation relating to each loan made and owned by
Bank and the other Standard Subsidiaries (i) with an outstanding principal
balance of $500,000 or more and relating to all security interests, mortgages
and other liens with respect to all collateral for each such loan, taken as a
whole, are adequate for the enforcement of the material terms of each such loan
and of the related security interests, mortgages and other liens and (ii) with
respect to all other loans and relating to the security interests, mortgages,
and other liens with respect to such loans are adequate for the enforcement of
the material terms of such loans and of the related security interests,
mortgages and
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other liens except where the lack of enforceability would not, individually or
in the aggregate, have a Material Adverse Effect on Standard. The terms of each
such loan 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).
(b) Except as set forth in Schedule 3.6, as of December 31,
1996, there are no loans, leases, other extensions of credit or commitments to
extend credit of Bank or any other Standard Subsidiary that have been or, to
Standard's Knowledge, should have been classified as non-accrual, as
restructured, as 90 days past due, as still accruing and doubtful of collection
or any comparable classification.
3.7 SUBSIDIARIES. Schedule 3.7 correctly sets forth the name and
jurisdiction of incorporation of each corporation, fifty percent or more of the
voting securities of which is owned directly or indirectly by Standard,
including Bank, (each a "Standard Subsidiary" and collectively the "Standard
Subsidiaries"). All of the issued and outstanding shares of capital stock of
each Standard Subsidiary are owned directly or indirectly by Standard free and
clear of any lien, pledge, security interest, encumbrance or charge of any kind.
Except for the stock of the Standard Subsidiaries directly or indirectly owned
by Standard or as otherwise disclosed on Schedule 3.7, neither Standard nor any
of the Standard Subsidiaries owns any stock, partnership interest, joint venture
interest or any other security issued by any other corporation, organization or
entity, except Federal Home Loan Bank stock and readily marketable securities
owned by Standard or a Standard Subsidiary in the ordinary course of its
business.
3.8 ABSENCE OF UNDISCLOSED LIABILITIES. All of the Liabilities of
Standard and the Standard Subsidiaries are reflected, disclosed or reserved
against in the audited consolidated balance sheet (the "Standard Latest Balance
Sheet") of Standard as at December 31, 1996 (the "Latest Standard Balance Sheet
Date") included in the 1996 Standard Financial Statements or in the notes
thereto, except (a) Liabilities incurred since December 31, 1996 in the ordinary
course of business, (b) as otherwise disclosed on Schedule 3.8, (c) Liabilities
incurred pursuant to this Agreement or in connection with the transactions
contemplated hereunder, or (d) other Liabilities which, in the aggregate, are
not material. As of the date hereof, there are no agreements or commitments
binding Standard or any Standard Subsidiary to extend credit to any person in
the amount of $500,000
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or more, except (i) as set forth on Schedule 3.8 or (ii) one to four family
residential mortgages.
3.9 NO MATERIAL ADVERSE CHANGES. Since December 31, 1996 to the date
hereof, there has been no event, occurrence or development in the business of
Standard or the Standard Subsidiaries that, taken together with other events,
occurrences and developments with respect to such business, has had or would
reasonably be expected to have a Material Adverse Effect on Standard or that
materially adversely affects the ability of Standard or any of the Standard
Subsidiaries to consummate the transactions contemplated hereby.
3.10 ABSENCE OF CERTAIN DEVELOPMENTS. Except as disclosed in the
Standard SEC Reports or in any Current Reports of Standard on Form 8-K filed
prior to the date of this Agreement, or on Schedule 3.10 unless otherwise
expressly contemplated or permitted by this Agreement, since December 31, 1996
to the date hereof, neither Standard nor any of the Standard Subsidiaries has:
(a) issued or sold any of its equity securities, securities
convertible into or exchangeable for its equity securities, warrants, options or
other rights to acquire its equity securities, except (i) in the case of Bank,
deposit and other bank obligations in the ordinary course of business or (ii)
pursuant to the exercise of stock options and warrants issued under, or
otherwise pursuant to, the agreements, arrangements or commitments identified on
Schedule 3.3;
(b) redeemed, purchased, acquired or offered to acquire,
directly or indirectly, any shares of capital stock of Standard or any of the
Standard Subsidiaries or other securities of Standard or any of the Standard
Subsidiaries, except pursuant to the exercise of stock options and warrants
issued under, or otherwise pursuant to, the agreements, arrangements or
commitments identified on Schedule 3.3;
(c) split, combined or reclassified any of its outstanding
shares of capital stock or declared, set aside or paid any dividends or other
distribution payable in cash, property or otherwise with respect to any shares
of its capital stock or other securities, except (i) dividends paid in cash by
the Standard Subsidiaries to Standard or any other Standard Subsidiary, and (ii)
the regular quarterly cash dividend of $.10 per share, payable to holders of
Standard Common Stock of record in January, 1997 and paid in April, 1997;
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(d) borrowed any amount or incurred or became subject to any
material liability, except borrowing or liabilities (x) incurred in the ordinary
course of business or (y) incurred under the contracts and commitments disclosed
in Schedule 3.13, but in no event has Standard or any Standard Subsidiary
entered into any borrowings with terms greater than one year except as set forth
in Schedule 3.10;
(e) discharged or satisfied any material lien or encumbrance on
the properties or assets of Standard or any of the Standard Subsidiaries or paid
any material liability other than in the ordinary course of business, other than
reverse repurchase agreements or Federal Home Loan Bank borrowings by Standard
or any of the Standard Subsidiaries;
(f) sold, assigned, transferred, mortgaged, pledged or subjected
to any lien or other encumbrance any of its assets with an aggregate market
value in excess of $250,000 except (i) in the ordinary course of business,
including REO, (ii) liens and encumbrances for current property taxes not yet
due and payable or being contested in good faith and (iii) liens and
encumbrances which do not materially affect the value of, or materially
interfere with, the current use or ability to convey, the property subject
thereto or affected thereby;
(g) canceled any material debts or claims or waived any rights
of material value, except in the ordinary course of business or upon payment in
full;
(h) suffered any theft, damage, destruction or loss of or to any
property or properties owned or used by it, whether or not covered by insurance,
which would, individually or in the aggregate, have a Material Adverse Effect on
Standard;
(i) made or granted any bonus or any wage, salary or
compensation increase or severance or termination payment to, or promoted, any
director, officer, employee, group of employees or consultant, or entered into
any employment contract or hired any employee with an annual salary in excess of
$100,000 other than bonuses, compensation increases, promotions or new hires in
the ordinary course and in a manner consistent with past practices as previously
disclosed to TCF;
(j) made or granted any increase in the benefits payable under
any employee benefit plan or arrangement, amended or terminated any
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existing employee benefit plan or arrangement or adopted any new employee
benefit plan or arrangement;
(k) made any single or group of related capital expenditures or
commitment therefor in excess of $250,000 or entered into any lease or group of
related leases with the same party which involves aggregate lease payments
payable of more than $250,000 for any group of related leases in the aggregate;
(l) acquired (by merger, exchange, consolidation, acquisition of
stock or assets or otherwise) any corporation, partnership, joint venture or
other business organization or division or material assets thereof, or assets or
deposits that are material to Standard on a consolidated basis, except in
exchange for debt previously contracted, including REO;
(m) taken any other material action or entered into any material
transaction other than in the ordinary course of business; or
(n) agreed to do any of the foregoing.
3.11 PROPERTIES.
(a) Each of Standard and the Standard Subsidiaries owns good and
marketable title to all of the real property and all of the personal property,
fixtures, furniture and equipment reflected on the consolidated balance sheet as
of December 31, 1996 of Standard included in the Standard 1996 Financial
Statements or acquired since the date thereof, free and clear of all liens and
encumbrances, except for (i) mortgages on real property set forth on Schedule
3.11(a), (ii) utility and other easements, encumbrances and restrictions that do
not materially interfere with the present use of the property for the business
being conducted thereon, (iii) liens for current taxes and special assessments
not delinquent or being contested in good faith, (iv) leasehold estates with
respect to multi-tenant buildings owned by Standard or any of the Standard
Subsidiaries, which leases are identified on Schedule 3.11(a), (v) landlords'
and statutory liens, and (vi) property disposed of since the Latest Standard
Balance Sheet Date in the ordinary course of business.
(b) Schedule 3.11(b) contains complete and correct copies of (i)
all leases relating to real property leased by Standard and the Standard
Subsidiaries, and (ii) each lease or license for personal property to which
Standard or any Standard Subsidiary is a party as lessee or licensee and which
(A) has
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a remaining term of one year or more and which involves annual payments of more
than $250,000, has a term of less than one year and which involves remaining
payments in excess of $250,000 or any group of leases or licenses with the same
party which have remaining terms of one year or more and which involve annual
payments of more than $250,000 in the aggregate or which have remaining terms of
less than one year and which involve remaining payments in excess of $250,000 in
the aggregate, (B) is a "material contract" within the meaning of Item
601(b)(10) of Regulation S-K promulgated by the SEC, or (C) was not entered into
in the ordinary course of business. The leases and licenses contained in
Schedule 3.11(b) are in full force and effect. Standard or a Standard
Subsidiary (if a lessee under such lease or licensee under such license) has a
valid and existing interest under each such lease or license for the term set
forth therein. With respect to such leases and licenses, neither Standard nor
any of the Standard Subsidiaries is in default, nor, to the Knowledge of
Standard, are any of the other parties to any of such leases and licenses in
default, except for defaults which, individually or in the aggregate, would not
have a Material Adverse Effect on Standard.
(c) Except as set forth in Schedule 3.11(c), neither Standard
nor any of the Standard Subsidiaries nor any of the real property owned by
Standard or any of the Standard Subsidiaries is in violation of any applicable
zoning ordinance or other law, regulation or requirement relating to the
operation of any properties used in the operation of its business, including
applicable environmental protection laws and regulations, except for violations
which would, individually or in the aggregate, not have a Material Adverse
Effect on Standard; and neither Standard nor any of the Standard Subsidiaries
has received any written notice of any such violation which has not been
remedied or cured, or of the existence of any condemnation proceeding with
respect to any material real properties owned or leased by Standard, Bank or any
of the Standard Subsidiaries. Except as set forth in Schedule 3.11(c), to the
Knowledge of Standard, no hazardous substances, hazardous wastes, pollutants or
contaminants have been deposited or disposed of in, on or under any real
properties currently owned, managed or controlled by Standard or any of the
Standard Subsidiaries, except in compliance with applicable law or where such
deposit or disposal is not reasonably likely to result in a Material Adverse
Effect on Standard. Except as set forth in Schedule 3.11(c), to the Knowledge
of Standard: (i) there are no aboveground or underground tanks (excluding hot
water storage or propane tanks) located under or in any properties currently
owned by Standard or any of the Standard Subsidiaries, and (ii) no prior owners,
occupants or operators of any
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real property currently owned by Standard or any Standard Subsidiary used such
properties as a garbage dump or gasoline service station.
3.12 TAX MATTERS. Standard, each of the Standard Subsidiaries and
all members of any consolidated, affiliated, combined or unitary group of which
Standard or any of the Standard Subsidiaries is a member have filed or will file
all Tax and Tax information returns or reports required to be filed (taking into
account permissible extensions) by them on or prior to the Effective Date,
except for such returns or reports where the failure to file would not have a
Material Adverse Effect on Standard, and have paid (or have accrued or reserved
or will accrue or reserve, prior to the Effective Date, amounts for the payment
of) all material Taxes shown to be due on such returns and reports relating to
the time periods covered thereby. The accrued taxes payable accounts for Taxes
and provision for deferred income taxes, specifically identified as such, on the
Standard Latest Balance Sheet are sufficient in all material respects for the
payment of all unpaid Taxes of Standard and the Standard Subsidiaries accrued
for all periods ended on or prior to the date of the Standard Latest Balance
Sheet. Except as disclosed on Schedule 3.12, neither Standard nor any of the
Standard Subsidiaries has waived any statute of limitations with respect to
Taxes or agreed to any extension of time with respect to an assessment or
deficiency for Taxes. All material Taxes which will be due and payable,
whether now or hereafter, for any period ending on, prior to or including the
Effective Date shall have been paid by or on behalf of Standard and the Standard
Subsidiaries or shall be reflected on the books of Standard and the Standard
Subsidiaries as an accrued Tax liability determined in a manner which is
consistent with past practices. No Tax returns of Standard or any of the
Standard Subsidiaries have, during the past five (5) years, been audited by any
governmental authority other than as disclosed on Schedule 3.12; and, except as
set forth on Schedule 3.12, there are no unresolved questions, claims or
disputes asserted in writing by any relevant taxing authority concerning the
liability for material Taxes of Standard or any of the Standard Subsidiaries.
None of Standard or any Standard Subsidiary (i) has been a member of an
affiliated group filing a consolidated federal income tax return (other than a
group, the common parent of which was Standard), or (ii) has liability for Taxes
of any person under Section 1.1502-6 of the Treasury Regulations. For purposes
of this Agreement, the term "Tax" shall mean any federal, state, local or
foreign income, gross receipts, license, payroll, employment, excise, severance,
stamp, occupation, premium, property or windfall profits tax, environmental tax,
customs duty, capital stock, franchise, employees' income withholding, foreign
or domestic withholding, social security, unemployment, disability, workers'
compensation, employment-related insurance, real property,
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personal property, sales, use, transfer, value added, alternative or add-on
minimum or other tax, fee or assessment imposed by a taxing jurisdiction,
including any interest, penalties or additions to, or additional amounts in
respect of the foregoing, for each party hereto and its commonly controlled
entities and all members of any consolidated, affiliated, combined or unitary
group of which any of them is a member.
3.13 CONTRACTS AND COMMITMENTS. Except as set forth on Schedule 3.13
or in Standard SEC Reports, neither Standard nor any of the Standard
Subsidiaries (i) is a party to any collective bargaining agreement or contract
with any labor union, (ii) is a party to any written or oral contract for the
employment of any officer, individual employee or other person on a full-time or
consulting basis, or relating to severance pay for any such person, (iii) is a
party to any written or oral agreement or understanding to repurchase assets
previously sold (or to indemnify or otherwise compensate the purchaser in
respect of such assets), except for securities sold under a repurchase
agreement, (iv) is a party as of the date hereof to any (A) contract with a
remaining term in excess of one year which is not terminable, without penalty,
on 60 or fewer days notice at any time before or after the expiration of such
one-year period for the purchase or sale of assets, products or services, under
which the undelivered balance of such assets, products and services has a
purchase price in excess of $250,000 for any individual contract or $250,000 in
the aggregate for any group of contracts with the same party, (B) other contract
which is a "material contract" within the meaning of Item 601(b)(10) of
Regulation S-K, to be performed after the date of this Agreement, or (C) other
material agreement or contract which was not entered into in the ordinary course
of business and which is not disclosed on Schedules 3.11(a) or 3.11(b), or (v)
has any commitment for a capital expenditures in excess of $250,000.
3.14 LITIGATION. Except as set forth on Schedule 3.14 as of the date
hereof, there are no actions, suits, claims, proceedings, orders or
investigations pending or, to the Knowledge of Standard, threatened against
Standard or any of the Standard Subsidiaries, at law or in equity, or before or
by any federal, state or other governmental department, commission, board,
bureau, agency or instrumentality, domestic or foreign in which the adverse
party or parties seeks recovery from Standard or any Standard Subsidiary, or
their respective properties or assets, of an unspecified amount, an amount or
value in excess of $100,000 or injunctive or other equitable relief.
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3.15 NO BROKERS OR FINDERS. Except as disclosed on Schedule 3.15,
there are no claims for brokerage commissions, finders' fees, investment
advisory fees or similar compensation in connection with the transactions
contemplated by this Agreement based on any arrangement, understanding,
commitment or agreement made by or on behalf of Standard or any of the Standard
Subsidiaries.
3.16 EMPLOYEE BENEFIT PLANS.
(a) DEFINITIONS. For the purposes of this Agreement, unless the
context clearly requires otherwise, the term "Plan" or "Plans" includes all
material employee benefit plans as defined in Section 3(3) of ERISA, and all
other benefit arrangements (including, without limitation, any employment
agreement or any program, agreement, policy or commitment providing for
severance payments, insurance coverage of employees, workers' compensation,
disability benefits, supplemental unemployment benefits, vacation benefits,
retirement benefits, life, health, disability or accident benefits) applicable
to the employees of Standard or any of the Standard Subsidiaries, to which
Standard or any of the Standard Subsidiaries contribute, or which Standard or
any of the Standard Subsidiaries have committed to implement for their employees
prior to the date of this Agreement. Unless the context clearly requires
otherwise, "Plan" or "Plans" shall also include any similar program or
arrangement maintained by any organization affiliated by ownership with Standard
or any of the Standard Subsidiaries for which Standard or any of the Standard
Subsidiaries are or would be completely or partially liable for the funding or
the administration either as a matter of law or by agreement but excluding
customers of the trust departments of affiliates of Bank where there is no
ownership affiliation between such customers and Bank. For the purposes of this
Section 3.16, a Plan is material if the liability, payments or commitments under
such Plan by or for Standard or any Standard Subsidiaries exceeds $100,000
annually. Schedule 3.16 lists the Plans of Standard and each Standard
Subsidiary.
(b) Except as disclosed on Schedule 3.16:
(i) FULL DISCLOSURE OF ALL PLANS. With respect to all
employees and former employees of Standard and the Standard
Subsidiaries (and all dependents and beneficiaries of such employees
and former employees):
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(A) Neither Standard nor any of the Standard
Subsidiaries maintains or contributes to any nonqualified
deferred compensation or retirement plans, contracts or
arrangements;
(B) Neither Standard nor any of the Standard
Subsidiaries maintains or contributes to any qualified
defined contribution plans (as defined in Section 3(34) of
ERISA or Section 414(i) of the Code);
(C) Neither Standard nor any of the Standard
Subsidiaries maintains or contributes to any qualified
defined benefit plans (as defined in Section 3(35) of ERISA
or Section 414(j) of the Code) ("Defined Benefit Plans");
(D) Neither Standard nor any of the Standard
Subsidiaries maintains or contributes to any employee
welfare benefit plans (as defined in Section 3(1) of ERISA);
(E) Neither Standard nor any of the Standard
Subsidiaries maintains or contributes to any retiree medical
program; and
(F) Neither Standard nor any of the Standard
Subsidiaries maintains or is obligated under any severance
policy or other severance arrangement for employees.
(ii) FUNDING. With respect to the Plans, (A) all
required contributions which are due have either been made or properly
accrued and (B) neither Standard nor any of the Standard Subsidiaries
is liable for any accumulated funding deficiency as that term is
defined in Section 412 of the Code.
(iii) PLAN DOCUMENTS. With respect to all Plans
sponsored, maintained or administered by Standard or any Standard
Subsidiary and all Plans to which Standard or any Stan-
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dard Subsidiary is or may be obligated to contribute, Standard has provided
true and complete copies of (A) the most recent determination letter, if
any, received by Standard or any of the Standard Subsidiaries from the
Internal Revenue Service regarding each qualified Plan, (B) the Form 5500
and all schedules and accompanying financial statements, if any, for each
Plan for which such form is required to be filed for the three most recent
fiscal Plan years, (C) the most recently prepared actuarial valuation
report, if any, for each Plan, and (D) copies of the current Plan
documents, trust agreements, insurance contracts and all related contracts
and documents (including summary plan descriptions and any other material
employee communications) with respect to each Plan.
(iv) DEFINED BENEFIT PLANS. As of the Effective Date,
no unfunded liability under Title IV of ERISA has been incurred by
Standard or any of the Standard Subsidiaries, or any affiliate of
Standard or any of the Standard Subsidiaries, that has not been
satisfied in full and, to the Knowledge of Standard, no condition
exists that presents a material risk to Standard or any of the
Standard Subsidiaries or TCF of incurring any such liability. There
are no unfunded vested liabilities (determined using the assumptions
used by the Plan for funding and without regard to future salary
increases) with respect to Defined Benefit Plans sponsored by Standard
or any Standard Subsidiary. There have been no reportable events
under Section 4043 of ERISA (with respect to which the 30-day notice
requirement has not been waived by regulation) with respect to any
Defined Benefit Plan maintained by Standard or any of the Standard
Subsidiaries. No Defined Benefit Plan has been terminated that will
result in a material liability by Standard or any of the Standard
Subsidiaries to the Pension Benefit Guaranty Corporation.
(v) MULTIEMPLOYER PLANS. As of the Effective Date,
neither Standard nor any of the Standard Subsidiaries has any actual
or potential liabilities under Sections 4201 or 4205 of ERISA for any
complete or partial withdrawal from any multiemployer plan and, to the
Knowledge of Standard, no condition exists that presents a material
risk to Standard or any of the Standard Subsidiaries of incurring any
such liability.
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(vi) FIDUCIARY BREACH; CLAIMS. Neither Standard nor
any of the Standard Subsidiaries nor any of their respective
directors, officers, employees or other fiduciaries has committed any
breach of fiduciary duty imposed by ERISA or any other applicable law
with respect to the Plans which would subject Standard or any of the
Standard Subsidiaries, directly or indirectly, to any material
liability under ERISA or any applicable law. There are no actions,
suits or claims pending against Standard or any Standard Subsidiary
relating to benefits other than routine claims for benefits.
(vii) PROHIBITED TRANSACTIONS. Neither Standard nor
any of the Standard Subsidiaries nor any of their respective officers,
directors, employees, or any other fiduciaries of any Plan has
incurred any material liability for any civil penalty imposed by
Section 4975 of the Code or Section 502(i) of ERISA.
(viii) MATERIAL COMPLIANCE WITH LAW. All Plans have
been administered in accordance with their terms in all material
respects. To the extent required either as a matter of law or to
obtain the intended tax treatment and tax benefits, all Plans comply
in all material respects with the requirements of ERISA and the Code.
All material Tax information returns or reports and all other material
required filings, disclosures and contributions have been made with
respect to all Plans. To the Knowledge of Standard, no condition
exists that limits the right of Standard or any of the Standard
Subsidiaries to amend or terminate any such Plan (except as provided
in such Plans or limited under ERISA or the Code).
(ix) VEBA FUNDING. No Plan is funded in whole or in
part through a voluntary employees' beneficiary association exempt
from tax under Section 501(c)(9) of the Code. To the extent
applicable, the limitations under Sections 419 and 419A of the Code
have been computed, all unrelated business income tax returns have
been filed and appropriate adjustments have been made on all other Tax
returns.
(x) RETIREMENT AND COBRA BENEFITS. Neither Standard
nor any of the Standard Subsidiaries has incurred
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a material liability under current law for benefits after separation from
employment other than (i) benefits under Plans listed on Schedule 3.16 or
described in Section 3.16(b)(i) hereof, and (ii) health care continuation
benefits described in Section 4980B of the Code or Part G of Subtitle B of
Title I of ERISA or any comparable provisions under the laws of any state.
(xi) COLLECTIVE BARGAINING. No Plan is maintained in
whole or in part pursuant to collective bargaining.
(xii) EMPLOYEE STATUS. Except as otherwise disclosed
in other Sections of this Agreement or the Schedules thereto, all
employees of Standard or any of the Standard Subsidiaries are "at
will" employees.
(c) EMPLOYEES. Except as set forth on Schedule 3.16, Standard
and the Standard Subsidiaries have complied with all laws relating to the
employment of labor, including provisions thereof relating to wages, hours,
equal opportunity, collective bargaining, non-discrimination and the payment of
social security and other taxes, except where failure to comply would not,
individually or in the aggregate, have a Material Adverse Effect on Standard.
3.17 INSURANCE. Schedule 3.17 lists the material insurance policies
maintained by Standard or any of the Standard Subsidiaries with respect to its
business, operations, properties and assets. All such insurance policies are in
full force and effect, and neither Standard nor any of the Standard Subsidiaries
is in default with respect to its obligations under any of such insurance
policies, except where such default would not result in the loss of any material
coverage.
AFFILIATE TRANSACTIONS. Except as set forth on Schedule 3.18,
or in the Standard SEC Reports, neither Standard nor any of the Standard
Subsidiaries, nor any executive officer or director of Standard or any of the
Standard Subsidiaries, 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 persons "controls" (within the meaning of
Regulation O of the Federal Reserve Board ("FRB")), has any loan agreement, note
or borrowing arrangement or any other agreement with Standard or any of the
Standard Subsidiaries (other than normal employment arrangements), any interest
in any material property, real, personal or mixed, tangible or intangible, used
in or
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pertaining to the business of Standard or any of the Standard Subsidiaries or
any other interest or transaction that would be required to be disclosed under
Regulation S-K of the SEC.
3.19 COMPLIANCE WITH LAWS; PERMITS. Each of Standard and the
Standard Subsidiaries has complied with all applicable laws and regulations of
foreign, federal, state and local governments and all agencies thereof which
affect the business or any of the Standard Subsidiaries or to which Standard or
any of the Standard Subsidiaries may be subject (including, without limitation,
the Occupational Safety and Health Act of 1970, the HOLA, the FDIA, the Real
Estate Settlement Procedures Act, the Home Mortgage Disclosure Act of 1975, the
Fair Housing Act and the Equal Credit Opportunity Act, each as amended, and any
other state or federal acts (including rules and regulations thereunder)
regulating or otherwise affecting employee health and safety or the
environment), except where failure to so comply would not, individually or in
the aggregate, have a Material Adverse Effect on Standard or materially
adversely affect Standard's ability to consummate the transactions contemplated
hereby. Each of Standard and the Standard Subsidiaries holds all of the
permits, licenses, certificates and other authorizations of foreign, federal,
state and local governmental agencies required for the conduct of its business
as currently conducted, except where failure to obtain such permits, licenses,
certificates or authorizations would not, individually or in the aggregate, have
an Material Adverse Effect on Standard or materially adversely affect the
ability of Standard to consummate the transactions contemplated hereby. Except
as disclosed in Schedule 3.19, neither Standard nor any of the Standard
Subsidiaries is subject to any cease and desist order, written agreement or
memorandum of understanding with, or is a party to any commitment letter or
similar undertaking to, or is subject to any order or directive by, or is a
recipient of any supervisory agreement letter from, or has adopted any board
resolutions at the request of any Bank Regulator, which would have a Material
Adverse Effect on Standard, nor has Standard or any of the Standard Subsidiaries
been advised by any Bank Regulator that it is contemplating issuing or
requesting (or is considering the appropriateness of issuing or requesting) any
such order, directive, written agreement, memorandum of understanding,
supervisory letter, commitment letter, board resolutions or similar undertaking.
3.20 ADMINISTRATION OF FIDUCIARY ACCOUNTS. Bank has properly
administered all accounts for which it acts as a fiduciary, including but not
limited to accounts for which it serves as a trustee, agent, custodian, personal
representative, guardian, conservator or investment advisor, in accordance with
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the terms of the government documents and applicable state and federal law and
regulation and common law except where failure to so administer such accounts,
individually or in the aggregate, would not have a Material Adverse Effect on
Standard. Neither Standard nor any director, officer or employee of Standard or
any Standard Subsidiary has committed any breach of trust with respect to any
such fiduciary account which, individually or in the aggregate, would have a
Material Adverse Effect on Standard and the accountings for each such fiduciary
account are true and correct in all material respects and accurately reflect the
assets of such fiduciary account in all material respects.
3.21 PROSPECTUS/PROXY STATEMENT. At the time the Prospectus/Proxy
Statement is mailed to the shareholders of Standard in order to obtain approvals
referred to in Section 5.19 hereof and at the time of such meeting of Standard's
shareholders, such Prospectus/Proxy Statement (including any supplements
thereto), with respect to all information furnished by Standard (as provided in
Section 5.9(c) hereof) for inclusion in the Prospectus/Proxy Statement will (a)
comply in all material respects with applicable provisions of the 1933 Act and
the 1934 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.
3.22 INTEREST RATE RISK MANAGEMENT INSTRUMENTS. There are no
interest rate swaps, caps, floors, option agreements or any similar interest
rate risk management agreements to which Standard or any of the Standard
Subsidiaries is a party or by which any of their properties or assets may be
bound.
3.23 STATE TAKEOVER LAWS; SHAREHOLDER RIGHTS PLAN. The Board of
Directors of Standard approved the execution of this Agreement and authorized
and approved the Conversion/Reincorporation and Merger prior to the execution by
Standard of this Agreement in accordance with Section 203 of the Delaware
General Corporation Law so that such section will not apply to this Agreement or
the transactions contemplated hereby. The Board of Directors of Standard has
taken all such action required to be taken by it to provide that this Agreement
and the transactions contemplated hereby shall be exempt from (i) the
requirements of any "business combination", "moratorium", "control share," "fair
price" or other antitakeover laws or regulations of any state or the United
States and (ii) any shareholder rights plan or similar plan of Standard or any
Standard Subsidiary.
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3.24 FAIRNESS OPINION. Standard has received a written opinion in a
form reasonably acceptable to Standard from Wasserstein Perella & Co., Inc. to
the effect that the Merger is fair from a financial point of view to the holders
of Standard Common Stock.
ARTICLE 4
CONDUCT OF BUSINESS PENDING THE MERGER
4.1 CONDUCT OF BUSINESS BY STANDARD AND THE STANDARD SUBSIDIARIES.
From the date of this Agreement to the Effective Date, unless TCF shall
otherwise agree in writing or as otherwise expressly contemplated or permitted
by other provisions of this Agreement, including but not limited to, this
Section 4.1:
(a) the business of Standard and the Standard Subsidiaries shall
be conducted only in, and neither Standard nor any Standard Subsidiary shall
take any action except in, the ordinary course, on an arms-length basis and in
accordance, in all material respects, with all applicable laws, rules and
regulations and with prudent banking practices;
(b) neither Standard nor any Standard Subsidiary shall directly
or indirectly:
(i) amend or propose to amend its Charter or Bylaws;
(ii) issue or sell any of its equity securities,
securities convertible into or exchangeable for its equity securities,
warrants, options or other rights to acquire its equity securities, or
any bonds or other securities, except (A) in the case of Bank,
deposits and other bank obligations in the ordinary course of business
and (B) pursuant to the exercise of the options set forth on Schedule
3.3 on the date of this Agreement;
(iii) redeem, purchase, acquire or offer to acquire,
directly or indirectly, any shares of capital stock of Standard or any
Standard Subsidiary or other securities of Standard, or any Standard
Subsidiary, except pursuant to the agreements, arrangements or
commitments identified on Schedule 3.3;
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(iv) split, combine or reclassify any outstanding
shares of capital stock of Standard or any Standard Subsidiary, or
declare, set aside or pay any dividend or other distribution payable
in cash, stock, property or otherwise with respect to shares of
capital stock of Standard or any Standard Subsidiary except (A)
regular quarterly cash dividends of not more than $.10 per share
payable to holders of Standard Common Stock or (B) dividends paid in
cash by any Standard Subsidiary to Standard or another Standard
Subsidiary;
(v) borrow any amount or incur or become subject to
any material liability, except borrowings and liabilities incurred in
the ordinary course of business, but in no event will Standard or any
Standard Subsidiary enter into any borrowings with a term of greater
than one (1) year or any other borrowings (other than intercompany or
Federal Home Loan Bank borrowings) in excess of $250,000 without prior
consultation with TCF, other than as set forth on Schedule 4.1(b);
(vi) discharge or satisfy any material lien or
encumbrance on the properties or assets of Standard or any Standard
Subsidiary or pay any material liability, except (A) in the ordinary
course of business and (B) in the case of Bank and Standard
Subsidiaries, reverse repurchase agreements for Federal Home Loan Bank
borrowings;
(vii) sell, assign, transfer, mortgage, pledge or
subject to any lien or other encumbrance any of its assets with an
aggregate market value in excess of $250,000, except (A) in the
ordinary course of business, including REO; (B) liens and encumbrances
for current property taxes not yet due and payable or being contested
in good faith and (C) liens and encumbrances which do not materially
affect the value of, or materially interfere with the current use or
ability to convey, the property subject thereto or affected thereby;
(viii) cancel any material debt or claims or waive any
rights of material value, except in the ordinary course of business or
upon payment in full;
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(ix) acquire (by merger, exchange, consolidation,
acquisition of stock or assets or otherwise) any corporation,
partnership, joint venture or other business organization or division
or material assets thereof, or assets or deposits that are material to
Standard on a consolidated basis, except in exchange for debt
previously contracted, including REO;
(x) other than as set forth on Schedule 3.10 on the
date of this Agreement, make any single or group of related capital
expenditures or commitments therefor in excess of $250,000 (other than
pursuant to binding commitments existing on the date hereof and other
than expenditures necessary to maintain assets in good repair) or
enter into any lease or group of leases as lessee with the same party
which involves aggregate lease payments payable of more than $250,000
for any individual lease or involves more than $250,000 for any group
of leases with the same party in the aggregate;
(xi) enter into or propose to enter into, or modify or
propose to modify, any agreement, arrangement, or understanding with
respect to any of the matters set forth in this Section 4.1(b) except
in the ordinary course of business;
(xii) without prior consultation with TCF, purchase or
otherwise acquire any investments, direct or indirect, in any
derivative securities other than occasional overnight investments of
excess cash; or
(xiii) without prior consultation with TCF, enter into
any interest rate swap, floors and option agreements or other similar
interest rate management agreements;
(c) neither Standard nor any Standard Subsidiary shall directly
or indirectly enter into, modify or terminate any employment, severance or
similar agreements or arrangements with, or grant any bonuses, wage, salary or
compensation increases, or severance or termination pay to, or promote, any
director, officer, employee, group of employees or consultant or hire any
employee with an annual salary over $100,000 other than (i) in the ordinary
course and in a manner consistent with past practices or (ii) as contemplated by
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this Agreement, and shall promptly notify TCF of any termination or resignation
of any officer or key employee;
(d) neither Standard nor any Standard Subsidiary shall adopt or
amend any profit sharing, stock option, pension, retirement, deferred
compensation, or other employee benefit plan, trust, fund, contract or
arrangement for the benefit or welfare of any employees, except as required by
law or to consummate any of the transactions contemplated hereby in accordance
with applicable law, provided that any such arrangement or amendment is approved
by TCF which approval shall not be unreasonably withheld by TCF;
(e) each of Standard and the Standard Subsidiaries shall use
reasonable efforts to cause its current insurance policies not to be canceled or
terminated or any of the coverage thereunder to lapse, unless simultaneously
with such termination, cancellation or lapse, replacement policies providing
coverage substantially equal to the coverage under the canceled, terminated or
lapsed policies are in full force and effect;
(f) neither Standard nor any Standard Subsidiary shall enter
into any settlement or similar agreement with respect to, or take any other
significant action with respect to the conduct of, any action, suit, proceeding,
order or investigation which is required to be set forth on Schedule 3.14 or to
which Standard or any Standard Subsidiary becomes a party after the date of this
Agreement which is required to be disclosed in an updated Schedule 3.14, without
prior consultation with TCF's General Counsel;
(g) each of Standard and the Standard Subsidiaries shall use
commercially reasonable efforts to preserve intact in all material respects the
business organization and the goodwill of Standard and the Standard Subsidiaries
and to keep available the services of its officers and employees as a group and
preserve intact material agreements, and Standard shall establish a committee of
senior management personnel which will confer on a regular and frequent basis
with a committee of senior management personnel of TCF, as reasonably requested
by TCF, to report on operational matters and the general status of ongoing
operations and to plan for the operations of the Resulting Institution upon
consummation of the Merger;
(h) neither Standard nor any Standard Subsidiary shall take any
significant action with respect to investment securities held or controlled by
them inconsistent with past practices or then current prudent practices,
materially
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alter its investment portfolio duration policy or, without prior consultation
with TCF, voluntarily take any action that will have or can reasonably be
expected to have a material adverse effect on Bank's asset/liability position;
(i) without prior consultation with TCF, Standard and the
Standard Subsidiaries shall not make any agreements or commitments binding it to
extend credit to any person in an amount in excess of $500,000;
(j) with respect to real properties leased by Standard and any
material personal property leased or licensed by Standard or any Standard
Subsidiary for its use, neither Standard nor any Standard Subsidiary shall fail
to renew, exercise an option to extend, cancel or surrender any such lease or
license nor allow any such lease or license to lapse without prior consultation
with TCF; and
(k) neither Standard nor any Standard Subsidiary shall agree to
any action prohibited by any of the foregoing;
provided, however, that in the event Standard would be prohibited from taking
any action by reason of this Section 4.1 without the prior written consent of
TCF, such action may nevertheless be taken if Standard is expressly required to
do so by law or by the OTS and Standard, as the case may be, promptly informs
TCF of such action. For purposes of this Agreement, the words "prior
consultation" with respect to any action means advance notice of such proposed
action and a reasonable opportunity to discuss such action in good faith prior
to taking such action.
4.2 CONDUCT OF BUSINESS BY TCF. From the date of this Agreement to
the Effective Date, unless Standard shall otherwise agree in writing or as
otherwise expressly contemplated or permitted by other provisions of this
Agreement, including but not limited to, this Section 4.2:
(a) TCF shall not issue or sell any of its equity securities,
securities convertible into or exchangeable for its equity securities, warrants,
options or other rights to acquire its equity securities, or any bonds or other
securities, except (i) pursuant to the exercise of the options or warrants or
the conversion of convertible securities set forth on Schedule 2.3 and pursuant
to the exercise of options granted under clause (iii) below, (ii) issuances of
TCF Common Stock to satisfy the employer matching obligations under the TCF's
401(k) Plan for the participants in such plan who elect to invest in TCF Common
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Stock, (iii) grants of options and restricted stock under the TCF Stock Plans in
the ordinary course of business, (iv) pursuant to TCF's dividend reinvestment
plan, or (v) as set forth in Schedule 4.2.
(b) TCF shall not redeem, purchase, acquire or offer to acquire,
directly or indirectly, any shares of capital stock of TCF or other securities
of TCF, except pursuant to the agreements, arrangements or commitments
identified on Schedule 2.3 and any redemption of redeemable debt, including but
not limited to TCF's outstanding convertible debentures;
(c) TCF shall not split, combine or reclassify any outstanding
shares of capital stock of TCF or declare, set aside or pay any dividend or
other distribution payable in cash, stock, property or otherwise with respect to
shares of capital stock of TCF except the regular quarterly cash dividends of
not more than $.32 per share;
(d) TCF shall not borrow any amount or incur or become subject
to any material liability, except borrowings and liabilities incurred in the
ordinary course of business or borrowings to redeem outstanding debentures,
borrowings to effect the transactions contemplated by this Agreement, or as set
forth in Schedule 4.2;
() neither TCF nor any TCF Subsidiary shall amend its Charter
or Bylaws in a manner which would adversely affect in any manner the terms of
the TCF Common Stock, or materially adversely affect the ability of TCF to
consummate the transactions contemplated hereby in a timely manner;
(f) neither TCF or any TCF Subsidiary shall sell, assign,
transfer, mortgage, pledge or subject to any lien or other encumbrance any of
its assets with an aggregate market value in excess of $250,000, except (A) in
the ordinary course of business, including REO; (B) liens and encumbrances for
current property taxes not yet due and payable or being contested in good faith;
(C) liens and encumbrances which do not materially affect the value of, or
materially interfere with the current use or ability to convey, the property
subject thereto or affected thereby; and (D) sales of bank branches;
(g) neither TCF nor any TCF Subsidiary shall acquire (by merger,
exchange, consolidation, acquisition of stock or assets or otherwise) any
corporation, partnership, joint venture or other business organization or
division or material assets thereof, or assets or deposits that are material to
TCF on a
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consolidated basis, except (A) in exchange for debt previously contracted,
including REO, (B) the pending merger transaction with Winthrop Resources
Corporation, or (C) the transactions contemplated by the conversions of the TCF
Subsidiaries which are banks into national banks, the chartering of new national
banks in Colorado and Ohio, and the registration of TCF as a bank holding
company under BHCA; or
(h) TCF shall not agree to do any of the foregoing.
ARTICLE
ADDITIONAL COVENANTS AND AGREEMENTS
5.1 FILINGS AND APPROVALS. Each party will use all reasonable
efforts and will cooperate with the other party in the preparation and filing,
as soon as practicable, of all applications or other documents required to
comply with applicable laws and regulatory requirements in connection with the
Conversion/Reincorporation, the Merger and the Subsequent Merger contemplated by
this Agreement, and provide copies of such applications, filings and related
correspondence to the other party, including causing any of its subsidiaries to
execute and deliver such agreements and documents as may be necessary to effect
the transactions contemplated hereby. Prior to filing each application,
registration statement or other document with the applicable regulatory
authority, each party will provide the other party with an opportunity to review
and comment on each such application, registration statement or other document.
Each party will use all reasonable efforts and will cooperate with the other
party in making such filings and taking any other actions necessary to obtain
such regulatory or other approvals and consents at the earliest practicable
time, 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 consummate and make effective
as promptly as practicable the transactions contemplated by this Agreement.
5.2 CERTAIN LOANS AND RELATED MATTERS. Standard will furnish to TCF
a complete and accurate list within 10 days of the date hereof as of the most
recent date the reports referred to below have been prepared and, within 15
business days after the end of its reporting cycle (which shall be no less
frequently than quarterly), of (a) all of Bank's periodic internal credit
quality reports
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prepared during such reporting period (which reports will be prepared in a
manner consistent with past practice), (b) all loans of Bank classified as non-
accrual, as restructured, as 90 days past due, and still accruing and doubtful
of collection or any comparable classification, (c) all non-residential REO,
including in-substance foreclosures and real estate in judgment, (d) any current
repurchase obligations of Bank with respect to any loans, loan participation or
state or municipal obligations or revenue bonds and (e) any standby letters of
credit issued by Bank.
5.3 MONTHLY FINANCIAL STATEMENTS. Standard shall furnish TCF with
Standard's (and if prepared in the ordinary course of business, each Standard
Subsidiary's) balance sheet as of the end of each calendar month after January,
1997 and the related statements of income, within fifteen (15) business days
after the end of each such calendar month. Such financial statements shall be
prepared on a basis consistent with current practice and shall fairly present
the financial positions of Standard or the Standard Subsidiary as of the dates
thereof and the results of operations of Standard or the Standard Subsidiary for
the periods then ended.
5.4 EXPENSES. Except as otherwise provided in this Agreement, all
costs and expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party incurring such costs
and expenses.
5.5 NO NEGOTIATIONS, ETC. Standard will not and will use its best
efforts to cause the Standard Subsidiaries and officers, directors, employees,
agents and affiliates of Standard and each Standard Subsidiary not to, directly
or indirectly, solicit, authorize, initiate or encourage submission of, any
proposal, offer, tender offer or exchange offer from any person or entity
(including any of its or their officers or employees) relating to any
liquidation, dissolution, recapitalization, merger, consolidation or acquisition
or purchase of all or a material portion of the assets or deposits of, or any
equity interest in, Standard or any of the Standard Subsidiaries or other
similar transaction or business combination involving Standard or any of the
Standard Subsidiaries (the "Acquisition Proposal") or, unless the Board of
Directors of Standard shall have determined, after consultation with Standard's
counsel, that there is a reasonable likelihood that the Board of Directors of
Standard has a fiduciary duty to do so, (a) participate in any negotiations in
connection with or in furtherance of any of the foregoing or (b) permit any
person other than TCF and its representatives to have any access to the
facilities of, or furnish to any person other than TCF and its representa-
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tives any non-public information with respect to, Standard or any of the
Standard Subsidiaries in connection with or in furtherance of any of the
foregoing. Standard shall promptly notify TCF if any such proposal or offer, or
any inquiry from or contact with any person with respect thereto, is made, and
shall promptly provide TCF with such information regarding such proposal, offer,
inquiry or contact as TCF may request.
5.6 NOTIFICATION OF CERTAIN MATTERS.
(a) Each party shall give prompt notice to the other party of
(i) the occurrence or failure to occur of any event or the discovery of any
information, which occurrence, failure or discovery would be likely to cause any
representation or warranty on its part contained in this Agreement to be untrue,
inaccurate or incomplete after the date hereof or, in case of any representation
or warranty given as of a specific date, would be likely to cause any such
representation on its part contained in this Agreement to be untrue, inaccurate
or incomplete in any material respect as of such specific date and (ii) any
material failure of such party to comply with or satisfy any covenant or
agreement to be complied with or satisfied by it hereunder.
(b) From time to time prior to the Effective Time, each party
shall promptly supplement or amend any of its representations and warranties
which apply to the period after the date hereof by delivering an updated
Schedule to the other party pursuant hereto with respect to any matter hereafter
arising which would render any such representation or warranty after the date of
this Agreement materially inaccurate or incomplete as a result of such matter
arising. Such supplement or amendment to a party's representations and
warranties contained in an updated Schedule shall be deemed to have modified the
representations and warranties of the disclosing party, and no such supplement
or amendment, or the information contained in an updated Schedule, shall
constitute a breach of a representation or warranty of the disclosing party;
provided that no such supplement or amendment may cure any breach of a covenant
or agreement of any party under Articles 4 or 5. Within 20 days after receipt
of such supplement or amendment (or if cure is promptly commenced by the
disclosing party, but is not effected within the Cure Period (as defined
below)), the receiving party may exercise its right to terminate this Agreement
pursuant to Section 7.1(i) hereof if the information in such supplement or
amendment together with the information in any or all of the supplements or
amendments previously provided by the disclosing party indicate that the
disclosing party has suffered or is reasonably likely to suffer a Material
Adverse Effect which either has not or
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cannot be cured within 30 days after disclosure to the receiving party (the
"Cure Period").
5.7 ACCESS TO INFORMATION; CONFIDENTIALITY.
(a) Standard shall and shall cause each of the Standard
Subsidiaries to permit TCF full access on reasonable notice and at reasonable
hours to its properties and shall disclose and make available (together with the
right to copy) to TCF and to the internal auditors, loan review officers,
employees, attorneys, accountants and other representatives of TCF all books,
papers and records relating to the assets, stock, properties, operations,
obligations and liabilities of Standard and the Standard Subsidiaries,
including, without limitation, all books of account (including, without
limitation, the general ledger), tax records, minute books of directors' and
shareholders' meetings, organizational documents, Bylaws, contracts and
agreements, filings with any regulatory authority, accountants' work papers,
litigation files (including, without limitation, legal research memoranda),
documents relating to assets and title thereto (including, without limitation,
abstracts, title insurance policies, surveys, environmental reports, opinions of
title and other information relating to real or personal property), plans
affecting employees, securities transfer records and shareholder lists, and any
books, papers and records relating to other assets or business activities in
which TCF may have a reasonable interest, including, without limitation, its
interest in planning for integration and transition with respect to the business
of Standard and the Standard Subsidiaries; provided, however, that the foregoing
rights granted to TCF shall, whether or not and regardless of the extent to
which the same are exercised, in no way affect the nature or scope of the
representations, warranties and covenants of Standard set forth herein. In
addition, Standard shall instruct its officers, employees, counsel and
accountants to be available for, and respond to any questions of, such TCF
representatives, as arranged through the committee described in Section 4.1(g)
hereof, at reasonable hours and with reasonable notice by TCF to such
individuals, and to cooperate fully with TCF in planning for the integration of
the business of Standard and the Standard Subsidiaries with the business of TCF
and the TCF Subsidiaries.
(b) TCF shall, and shall cause each of the TCF Subsidiaries to,
provide to Standard and its officers, employees and representatives the same
rights being granted by Standard and to TCF pursuant to Section 5.7(a);
provided, however, that the foregoing rights granted to Standard shall, whether
or not and regardless of the extent to which the same are exercised, in no way
affect the nature or scope of the representations, warranties and covenants of
TCF set
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forth herein. In addition, TCF shall instruct its officers, employees, counsel
and accountants to be available for, and respond to reasonable questions of,
representatives of Standard at reasonable hours and with reasonable notice by
Standard to such individuals.
(c) All information furnished by Standard or TCF pursuant hereto
shall be treated as the sole property of the party furnishing the information
until the Effective Date, and, if the Effective Date shall not occur, the
receiving party shall return to the party which furnished such information, or
destroy, all documents or other materials (including copies thereof) containing,
reflecting or referring to such information. In addition, the receiving party
shall keep confidential all such information and shall not directly or
indirectly use such information for any competitive or other commercial purpose.
The obligation to keep such information confidential shall not apply to (i) any
information which (A) was already in the receiving party's possession prior to
the disclosure thereof to the receiving party by the party furnishing the
information, (B) was then generally known to the public, (C) became known to the
public through no fault of the receiving party or its representatives or (D) was
disclosed to the receiving party by a third party not bound by an obligation of
confidentiality or (ii) disclosures required by law or by governmental or
regulatory authority.
5.8 FILING OF TAX RETURNS AND ADJUSTMENTS.
(a) Standard, on its behalf and on behalf of each of the
Standard Subsidiaries, shall file (or cause to be filed) at its own expense, on
or prior to the due date, all Tax returns, including all Plan returns and
reports, for all Tax periods ending on or before the Effective Date where the
due date for such returns or reports (taking into account valid extensions of
the respective due dates) falls on or before the Effective Date; provided,
however, that neither Standard nor any of the Standard Subsidiaries shall amend
any Tax returns, or other returns, elections or information statements which
reflects an additional liability for Taxes, or consent to any material
adjustment or otherwise compromise or settle any material matters with respect
to Taxes, without prior consultation with TCF; provided, further, that neither
Standard nor any of the Standard Subsidiaries shall make any election or take
any other discretionary position with respect to any material amount of Taxes in
a manner inconsistent with past practices, without the prior written approval of
TCF, which approval shall not be unreasonably withheld. In the event the
granting or withholding of such approval by TCF results in additional Taxes
owing for any Tax period ending on or before the Effective Date, the liability
for such additional Taxes shall not constitute or
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be deemed to be a breach, violation of or failure to satisfy any representation,
warranty, covenant, condition or other provision of this Agreement or otherwise
be considered in determining whether any such breach, violation or failure to
satisfy shall have occurred. Standard shall provide TCF with a copy of
appropriate workpapers, schedules, drafts and final copies of each material
federal and state income Tax return or election of Standard and each of the
Standard Subsidiaries (including returns of all Plans) as soon as practicable
before filing such return or election and the parties shall reasonably cooperate
with each other in connection therewith.
(b) TCF, in its sole and absolute discretion, will file (or
cause to be filed) all Tax returns of Bank due after the Effective Date. After
the Effective Date, TCF, in its sole and absolute discretion and to the extent
permitted by law, shall have the right to amend, modify or otherwise change all
Tax returns of Standard and each Standard Subsidiary for all Tax periods.
5.9 REGISTRATION STATEMENT.
(a) For the purpose (i) of holding meetings of shareholders of
Standard to approve this Agreement and the transactions contemplated hereby,
including the Conversion/Reincorporation, the Merger and the Subsequent Merger,
and (ii) of registering with the SEC and with applicable state securities
authorities the TCF Common Stock to be issued as contemplated by this Agreement,
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
"Registration Statement"), which shall include a prospectus/proxy statement
satisfying all applicable requirements of the 1933 Act, the 1934 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) TCF shall furnish such information concerning TCF and the
TCF Subsidiaries as is necessary in order to cause the Prospectus/Proxy
Statement, insofar as it relates to TCF, the TCF Subsidiaries and TCF Common
Stock, to be prepared in accordance with Section 5.9(a). TCF agrees promptly to
advise Standard if at any time prior to the meeting of Standard's shareholders
any information provided by TCF in the Prospectus/Proxy Statement becomes
incorrect or incomplete in any material respect, and to share with Standard the
information needed to correct such inaccuracy or omission.
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(c) Standard shall furnish TCF with such information concerning
Standard and the Standard Subsidiaries as is necessary in order to cause the
Prospectus/Proxy Statement, insofar as it relates to Standard or the Standard
Subsidiaries to be prepared in accordance with Section 5.9(a). TCF agrees to
provide Standard with reasonable opportunity to review and comment on the
Prospectus/Proxy Statement. Standard agrees promptly to advise TCF if at any
time prior to the meeting of Standard's shareholders any information provided by
Standard in the Prospectus/Proxy Statement becomes incorrect or incomplete in
any material respect, and to provide TCF with the information needed to correct
such inaccuracy or omission.
(d) TCF shall promptly file the Registration Statement with the
SEC and applicable state securities agencies. TCF shall use reasonable efforts
to cause the Registration Statement to become effective under the 1933 Act and
applicable state securities laws at the earliest practicable date. Standard
authorizes TCF to utilize in the Registration Statement the information
concerning Standard and the Standard Subsidiaries provided to TCF for the
purpose of inclusion in the Prospectus/Proxy Statement. TCF shall advise
Standard promptly when the Registration Statement has become effective and of
any supplements or amendments thereto, and TCF shall furnish Standard with
copies of all such documents. Prior to the Effective Date 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 1933 Act prior to
using or disseminating such prospectus.
(e) TCF shall use reasonable efforts to cause to be delivered to
Standard a letter relating to the Registration Statement from KPMG Peat Marwick
LLP, TCF's independent auditors, dated a date within two business days before
the date on which the Registration Statement shall become effective and
addressed to Standard, in form and substance reasonably satisfactory to Standard
and customary in scope and substance for letters delivered by independent public
accountants in connection with registration statements similar to the
Registration Statement.
(f) Standard shall use reasonable efforts to cause to be
delivered to TCF a letter relating to the Registration Statement from Ernst &
Young LLP, Standard's independent auditors, dated a date within two business
days before the date on which the Registration Statement shall become effective
and addressed to TCF, in form and substance reasonably satisfactory to TCF and
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customary in scope and substance for letters delivered by independent public
accountants in connection with registration statements similar to the
Registration Statement.
(g) TCF shall bear the costs of all SEC filing fees with respect
to the Registration Statement and the costs of qualifying the TCF Common Stock
to be issued in connection with the transactions contemplated by this Agreement
under state blue sky laws to the extent necessary. Standard shall bear all
printing and mailing costs in connection with the preparation and mailing of the
Prospectus/Proxy Statement to Standard's shareholders. TCF and Standard shall
each bear their own legal and accounting expenses in connection with the
Registration Statement.
5.10 AFFILIATE LETTERS. Standard shall obtain and deliver to TCF as
promptly as practicable after (and shall use its reasonable best efforts to
obtain and deliver within five days after) the date hereof a signed
representation letter substantially in the form of Exhibit A hereto from each
executive officer and director of Standard and each shareholder of Standard who
may reasonably be deemed an "affiliate" of Standard within the meaning of such
term as used in Rule 145 under the 1933 Act, and shall obtain and deliver to TCF
a signed representation letter substantially in the form of Exhibit A from any
person who becomes an executive officer or director of Standard or any
shareholder who becomes such an "affiliate" after the date hereof as promptly as
practicable after (and shall use its reasonable best efforts to obtain and
deliver within five days after) such person achieves such status. TCF may place
appropriate legends on the stock certificates of affiliates of Standard.
5.11 ESTABLISHMENT OF ACCRUALS. If requested by TCF immediately
prior to the Effective Date, Standard shall establish, or shall cause the Bank
to establish, consistent with GAAP, such additional accruals and reserves as may
be necessary to conform Bank's accounting and credit loss reserve practices and
methods to those of TCF (as such practices and methods are to be applied to Bank
from and after the Effective Date) and reflect TCF's plans with respect to the
conduct of Bank's business following the Merger and to provide for the costs and
expenses relating to the consummation by Bank of the transactions contemplated
by this Agreement; provided, however, that Bank shall not be required to take
such action unless (i) TCF certifies in writing that it has no reason to believe
that all conditions to TCF's obligation to consummate the transactions
contemplated by this Agreement will not be satisfied, and (ii) Bank shall have
no reasonable basis for believing that all the conditions to Bank's obligation
to consummate the
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transactions contemplated by this Agreement will not be satisfied.
Notwithstanding anything to the contrary contained in this Agreement, no accrual
or reserve made by Bank pursuant to this Section 5.11, or any litigation or
regulatory proceeding arising out of any such accrual or reserve, or any other
effect on Bank resulting from Bank's compliance with this Section 5.11, shall
constitute or be deemed to be a breach, violation of or failure to satisfy any
representation, warranty, covenant, condition or other provision of this
Agreement or otherwise be considered in determining whether any such breach,
violation or failure to satisfy shall have occurred.
5.12 EMPLOYEE BENEFIT PLANS.
(a) GENERAL. Any transfer of employment from Standard or any of
Standard Subsidiaries to TCF or any of the TCF Subsidiaries effected by or in
connection with the Merger or the Subsequent Merger shall not be considered a
termination of employment for purposes of any of the employee benefit plans of
Standard or TCF, including any severance plans or arrangements. It is the
parties' intention that the employee plans of Standard or any of the Standard
Subsidiaries will be merged with applicable TCF plans or discontinued as soon as
practicable after the Merger and the employee plans of TCF will be made
available to employees of Standard as soon as practicable after the Merger, with
employees of Standard of any of the Standard Subsidiaries receiving credit for
their pre-Effective Time service with Standard under the TCF benefit plans for
eligibility and vesting purposes, but not for purposes of benefit accrual.
(b) MEDICAL PLANS. TCF intends that employees of Standard and
the Standard Subsidiaries who are participating in medical plans of Standard or
any Standard Subsidiary at the time of any replacement of such medical plans
with the TCF medical plans will not be subject to any exclusion or penalty for
pre-existing conditions that were covered under the applicable plans of Standard
or any Standard Subsidiary and will receive full credit for prior service with
Standard or any Standard Subsidiary toward any waiting periods under the TCF
plans and full credit for payment of current and past premiums, co-payments and
deductibles under the medical plans of Standard or any Standard Subsidiary
toward such items under the TCF medical coverage, and that employees of Standard
or any Standard Subsidiary not participating in such plans at the time of their
replacement by TCF's medical plans will receive full credit for their pre-
Effective Time service with Standard or any Standard Subsidiary toward any
waiting period or other service requirements generally applicable under TCF's
medical plans.
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(c) ESOP. The Bank has established an employee stock ownership
plan (the "ESOP") for the benefit of its employees which is a tax-qualified
plan. As of December 31, 1996, the ESOP had purchased an aggregate of 961,070
shares of Standard Common Stock from Standard which had not been allocated to
participant accounts or earned by participants and owed Standard an aggregate of
$9,610,700 with respect to such shares. The parties intend that, as soon as
practicable, to take the actions set forth on Schedule 5.12.
(d) NO THIRD PARTY BENEFICIARIES; RESERVATION OF RIGHTS.
Notwithstanding the foregoing provisions of this Section 5.12, nothing in this
Section 5.12 or in this Agreement shall be deemed to confer upon any employee or
former employee of Standard or any Standard Subsidiary, or any other individual,
any rights or entitlement to any particular benefits, benefit plans, payments or
distributions. Except as expressly provided herein, TCF reserves, on behalf of
itself and the boards of directors of any and all of TCF Subsidiaries (including
Standard and any Standard Subsidiary after the Effective Date), full authority
to amend, terminate, discontinue or otherwise revise their respective employee
plans and/or to adopt new plans from time to time subject solely to the
discretion of the boards of directors of the entities involved.
5.13 TAX TREATMENT. Each of TCF and Standard shall not take or fail
to take, and shall cause their respective affiliates not to take or fail to
take, any action which action or failure to act would prevent, or be likely to
prevent, the Conversion/Reincorporation or the Merger from qualifying as a
"reorganization" within the meaning of Section 368(a) of the Code.
5.14 PRESS RELEASES. TCF and Standard shall agree with each other as
to the form and substance of any press release related to this Agreement or the
transactions contemplated hereby, and shall consult with each other as to the
form and substance of other public disclosures which may relate to the
transactions contemplated by this Agreement, provided, however, that nothing
contained herein shall prohibit either party, following notification to the
other party, from making any disclosure which is required by law or regulation.
5.15 INDEMNIFICATION AND INSURANCE.
(a) From and after the Effective Date, TCF shall indemnify,
defend and hold harmless each person who is now, or has been at any time prior
to the date hereof or who becomes prior to the Effective Date, an officer,
director, employee or agent of Standard or any Standard Subsidiary (the "Indem-
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nified Parties") against all losses, claims, damages, costs, expenses (including
attorney's fees), liabilities or judgments or amounts that are paid in
settlement (which settlement shall require the prior written consent of TCF,
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, officer, employee or agent of Standard or any
Standard Subsidiary if such Claim pertains to any matter or fact arising,
existing or occurring on or prior to the Effective Date (including, without
limitation, the Conversion/Reincorporation, 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 Date (the "Indemnified Liabilities")
to the fullest extent permitted by TCF's Charter and Bylaws and applicable
Delaware law. Any Indemnified Party wishing to claim indemnification under this
Section 5.15(a), upon learning of any Claim, shall notify TCF (but the failure
so to notify TCF shall not relieve it from any liability which TCF may have
under this Section 5.15(a) except to the extent such failure prejudices TCF) and
shall deliver to TCF any undertaking required by Delaware law. The obligations
of TCF described in this Section 5.15(a) shall continue in full force and
effect, without any amendment thereto, for a period of not less than six years
from the Effective Date; 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; and provided further that nothing in this
Section 5.15(a) shall be deemed to modify applicable Delaware law regarding
indemnification of former officers and directors. The foregoing
indemnification shall not apply to any actions, suits proceedings, orders or
investigations which at the date hereof are pending or, to the Knowledge of
Standard or its directors, threatened unless disclosed on Schedule 5.15(a).
(b) From and after the Effective Date, the directors, officers
and employees of Standard or any Standard Subsidiary who become directors,
officers or employees of TCF, the Resulting Institution or any other of the TCF
Subsidiaries, shall also have indemnification rights with prospective
application. The prospective indemnification rights shall consist of such
rights to which directors, officers and employees of TCF are entitled under the
provisions of the Charter, Bylaws or similar governing documents of TCF, the
Resulting Institution and the other TCF Subsidiaries, as in effect from time to
time after the Effective Date, as applicable, and provisions of applicable law
as in effect from time to time after the Effective Date.
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(c) TCF shall cause the Resulting Institution and any successor
thereto to maintain directors and officers liability insurance comparable to
that being maintained by TCF on the date hereof, or continue the existing
insurance being maintained by Standard, for the benefit of the current and
former directors and officers of Standard or any Standard Subsidiary for a
period of three years after the Effective Time, which insurance shall provide
coverage for acts and omissions occurring on or prior to the Effective Date;
provided, further, that officers and directors of Standard or any Standard
Subsidiary may be required to make application and provide customary
representations and warranties to TCF's or the Resulting Institution's insurance
carrier for the purpose of obtaining such insurance; and provided, further, that
such coverage will be in an amount not less than the annual aggregate of such
coverage currently provided by Standard.
(d) The contractual obligations of TCF provided under Sections
5.15(a) through 5.15(c) hereof are intended to benefit, and be enforceable
against TCF directly by, the Indemnified Parties, and shall be binding on all
respective successors of TCF.
5.16 TCF SEC REPORTS. TCF shall continue to file all reports with
the SEC necessary to permit the shareholders of Standard who are "affiliates" of
Standard (within the meaning of such term as used in Rule 145 under the 1933
Act) to sell the TCF Common Stock received by them in connection with the Merger
pursuant to Rules 144 and 145(d) under the 1933 Act if they would otherwise be
so permitted. After the Effective Date, TCF will file with the SEC such reports
and other materials required to be filed by TCF under the federal securities
laws on a timely basis.
5.17 SECURITIES REPORTS. Each of TCF and Standard agree to provide
to the other party copies of all reports and other documents filed under the
1933 Act or 1934 Act with the SEC by it between the date hereof and the
Effective Date within five days after the date such reports or other documents
are filed with the SEC.
5.18 STOCK EXCHANGE LISTING. TCF shall use its best efforts to list
on the NYSE, subject to official notice of issuance, the shares of TCF Common
Stock to be issued in the Merger.
5.19 SHAREHOLDER APPROVAL. Standard shall call a meeting of its
shareholders for the purpose of voting upon this Agreement, the
Conversion/Reincorporation and the Merger and shall schedule the date of such
meeting
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after consultation with TCF. The Board of Directors of Standard shall recommend
approval of this Agreement, the Conversion/Reincorporation and the Merger, and
use its best efforts (including, without limitation, soliciting proxies for such
approvals) to obtain approvals from its shareholders; provided, however, that
the Board of Directors of Standard may fail to make the recommendation, and/or
to seek to obtain the shareholder approval, referred to above, or withdraw,
modify or change any such recommendation, if such Board of Directors determines,
after consultation with counsel to Standard, that the making of such
recommendation, the seeking to obtain such shareholder approval, or the failure
to so withdraw, modify or change its recommendation, is reasonably likely to
constitute a breach of the fiduciary or legal obligations of Standard's Board of
Directors.
5.20 FAILURE TO FULFILL CONDITIONS. In the event that either of the
parties hereto determines that a condition to its respective obligations to
consummate the transactions contemplated hereby cannot be fulfilled on or prior
to the termination of this Agreement, it will promptly notify the other party.
Each party will promptly inform the other party of any facts applicable to it
that would be likely to prevent or materially delay approval of the Merger by
any governmental or regulatory authority or third party or which would otherwise
prevent or materially delay completion of the Merger.
5.21 STANDARD SEVERANCE/CHANGE IN CONTROL ARRANGEMENTS. TCF agrees
to perform, or, as applicable, cause the Resulting Institution or any of its
controlled subsidiaries to perform, the terms of any contractual arrangements,
including severance and change of control arrangements, as disclosed in Schedule
3.13 as in effect on the date hereof. TCF agrees that the transactions
contemplated by this Agreement constitute a change of control of Standard for
purposes of any severance arrangements referred to above.
5.22 HEADQUARTERS OF RESULTING INSTITUTION. It is TCF's current
intention to maintain the headquarters of the Resulting Institution in the
current location of Bank's headquarters.
5.23 CONVERSION/REINCORPORATION. Standard shall use its best efforts
to effect the Conversion/Reincorporation in a manner reasonably acceptable to
TCF immediately prior to the Effective Time.
5.24 PRIVATE LETTER RULING. If TCF and Standard mutually agree to
apply for an Internal Revenue Service private letter ruling to the effect that
the
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Conversion/Reincorporation, the Merger and the Subsequent Merger constitute a
reorganization within the meaning of Section 368(a) of the Code, the parties
will reasonably cooperate with each other in connection with such ruling
request, including TCF providing Standard's tax counsel a reasonable opportunity
to review and comment on submissions to the IRS and to participate in
conferences with the IRS. In event a favorable ruling is received from the IRS
prior to the Effective Date, the conditions to closing in Sections 6.2(g) and
6.3(h) shall be deemed satisfied.
ARTICLE 6
CONDITIONS
6.1 CONDITIONS TO OBLIGATIONS OF EACH PARTY. The respective
obligations of each party to effect the transactions contemplated hereby shall
be subject to the fulfillment at or prior to the Effective Date of the following
conditions:
(a) REGULATORY APPROVAL. Regulatory approval for the
consummation of the transactions contemplated hereby, including the
Conversion/Reincorporation, the Merger and the Subsequent Merger, shall have
been obtained from the applicable Bank Authority or Bank Authorities and all
applicable statutory or regulatory waiting periods shall have lapsed.
(b) NO INJUNCTION. No injunction or other order entered by a
state or federal court of competent jurisdiction shall have been issued and
remain in effect which would prohibit or make illegal the consummation of the
transactions contemplated hereby.
(c) NO PROHIBITIVE CHANGE OF LAW. There shall have been no law,
statute, rule or regulation, domestic or foreign, enacted or promulgated which
would prohibit or make illegal the consummation of the transactions contemplated
hereby.
(d) REGISTRATION STATEMENT. The Registration Statement shall
have been declared effective and shall not be subject to a stop order of the
SEC, and, if the offer and sale of TCF Common Stock in the Merger pursuant to
this Agreement is required to be registered under the securities laws of any
state,
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the Registration Statement shall not be subject to a stop order of the
securities commission in such state.
(e) LISTING. The TCF Common Stock to be issued to holders of
Standard Common Stock shall have been approved for listing on the NYSE subject
to official notice of issuance.
(f) ADVERSE PROCEEDINGS. There shall not be instituted or
pending any action or proceeding before any court by any governmental authority
or agency, domestic or foreign, (i) challenging or seeking to make illegal, or
to delay or otherwise directly or indirectly to restrain or prohibit, the
consummation of the transactions contemplated hereby or seeking to obtain
material damages in connection with the transactions contemplated hereby, (ii)
seeking to prohibit direct or indirect ownership or operation by TCF of all or a
material portion of the business or assets of Standard and the Standard
Subsidiaries, or to compel TCF or any of the TCF Subsidiaries or Standard or any
of the Standard Subsidiaries to dispose of all or a material portion of the
business or assets of TCF or Standard and the Standard Subsidiaries, as a result
of the transactions contemplated hereby, or (iii) seeking to require direct or
indirect divestiture by TCF of any material portion of its business or assets or
of the business or assets of Standard and the Standard Subsidiaries.
(g) GOVERNMENTAL ACTION. After the date hereof, there shall not
be any action taken, or any statute, rule, regulation, judgment, order or
injunction enacted, entered, enforced, promulgated, issued or deemed applicable
to the transactions contemplated by this Agreement by any federal, state or
other court, government or governmental authority or agency, which could
reasonably be expected to result, directly or indirectly, in any of the
consequences referred to in Section 6.1(f).
6.2 ADDITIONAL CONDITIONS TO OBLIGATION OF STANDARD. The obligation
of Standard to consummate the transactions contemplated hereby in accordance
with the terms of this Agreement is also subject to the following conditions:
(a) REPRESENTATIONS AND COMPLIANCE. The representations and
warranties of TCF set forth in Article 2 shall have been true and correct as of
the date hereof, and shall be true and correct as of the Effective Date as
updated pursuant to Section 5.6(b) if made at and as of the Effective Date,
except where the failure to be true and correct would not have, or would not
reasonably
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be expected to have, a Material Adverse Effect on TCF. TCF shall in all
material respects have performed each obligation and agreement and complied with
each covenant to be performed and complied with by it hereunder at or prior to
the Effective Date.
(b) OFFICERS' CERTIFICATE OF TCF. TCF shall have furnished to
Standard a certificate of the Chief Executive Officer or the President and the
Chief Financial Officer of TCF, dated as of the Effective Date, in which such
officers shall certify to their best Knowledge that they have no reason to
believe that the conditions set forth in Section 6.2(a) have not been fulfilled.
(c) TCF'S SECRETARY'S CERTIFICATE. TCF shall have furnished to
Standard (i) copies of the text of the resolutions by which the corporate action
on the part of TCF and Merger Sub necessary to approve this Agreement, the
Articles of Merger and the transactions contemplated hereby and thereby were
taken, (ii) a certificate dated as of the Effective Date executed on behalf of
TCF by its corporate secretary or one of its assistant corporate secretaries
certifying to Standard that such copies are true, correct and complete copies of
such resolutions and that such resolutions were duly adopted and have not been
amended or rescinded and (iii) an incumbency certificate dated as of the
Effective Date executed on behalf of each of TCF and Merger Sub by its corporate
secretary or one of its assistant corporate secretaries certifying the signature
and office of each officer of TCF or Merger Sub executing this Agreement, the
Articles of Merger or any other agreement, certificate or other instrument
executed pursuant hereto by TCF or Merger Sub, as the case may be.
(d) OPINION OF COUNSEL TO TCF. Standard shall have received an
opinion letter dated as of the Effective Date addressed to Bank from Gregory J.
Pulles, Esq., General Counsel and Secretary of TCF, based on customary reliance
and subject to customary qualifications to the effect that:
(i) TCF is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware.
Merger Sub is a validly existing and in good standing under the laws
of the United States of America.
(ii) TCF has the corporate power to consummate the
transactions on its part contemplated by this Agreement. TCF has
taken all requisite corporate action to authorize this Agreement and
the Merger, and Merger Sub has taken all
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requisite corporate action to authorize the Merger and the Articles of
Merger. This Agreement has been duly executed and delivered by TCF and the
Articles of Merger have been duly executed by Merger Sub and, assuming they
are the valid and binding obligation of Standard, constitute the valid and
binding obligations of TCF and Merger Sub to which it is a party
enforceable in accordance with their terms, subject as to the enforcement
of remedies to applicable bankruptcy, insolvency, moratorium and other laws
affecting the rights of creditors generally and to judicial limitations on
the enforcement of the remedy of specific performance.
(iii) The execution and delivery of this Agreement by
TCF and the Articles of Merger by Merger Sub and the consummation of
the transactions contemplated hereby and thereby will not constitute a
breach, default or violation under their respective Charter or Bylaws
or, to his Knowledge, (A) any material agreement, arrangement or
understanding to which TCF or Merger Sub is a party, (B) any material
license, franchise or permit affecting TCF or Merger Sub, or (C) any
law, regulation, order, judgment or decree applicable to TCF or Merger
Sub.
(iv) No authorization, consent or approval of, or
filing with, any public body, court or authority is necessary for the
consummation by TCF or Merger Sub of the transactions contemplated
hereby which has not been obtained or made.
(v) The authorized capital of TCF consists of (A)
____________ shares of TCF Common Stock of which ______ shares are
duly issued and outstanding and _____ shares are reserved for issuance
upon exercise of the TCF Stock Plans, and (B) ____________ shares of
preferred stock, of which _________ shares are outstanding.
(vi) The shares of TCF Common Stock to be issued
pursuant to this Agreement will be, when issued, duly authorized,
validly issued, fully paid and nonassessable.
(e) STANDARD SHAREHOLDER APPROVAL. This Agreement, the
Conversion/Reincorporation and the Merger shall have been approved by the
affirmative vote of the holders of the percentage of Standard capital stock
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required for such approval under Delaware law and the provisions of Standard's
Charter and bylaws.
() MATERIAL ADVERSE EFFECT. Since the date of this Agreement,
TCF has not suffered or experienced a Material Adverse Effect, except this
subsection shall not apply to matters properly disclosed to Standard by TCF in
any Schedule to this Agreement delivered by TCF upon the execution of this
Agreement or in any supplement or amendment delivered by TCF pursuant to Section
5.6(b) for which Standard has a specific right of termination under Section
7.1(i) hereof.
(g) TAX OPINION. Standard shall have received an opinion dated
the Effective Date from Skadden, Arps, Slate, Meagher & Flom (Illinois), counsel
to Standard, in form and substance reasonably satisfactory to Standard,
substantially to the effect that, on the basis of facts, representations and
assumptions set forth in such opinion which are consistent with the state of
facts existing on the Effective Date, (i) no gain or loss will be recognized for
federal income tax purposes as a result of the Conversion/Reincorporation and
(ii) the Conversion/Reincorporation, the Merger and the Subsequent Merger will
be treated for federal income tax purposes as a reorganization within the
meaning of Section 368(a) of the Code. In rendering such opinion, Skadden,
Arps, Slate, Meagher & Flom (Illinois) may require and rely upon (and may
incorporate by reference) representations and covenants, including those
contained in certificates of officers of Standard, Bank, TCF, Merger Sub and
others.
6.3 ADDITIONAL CONDITIONS TO OBLIGATION OF TCF. The obligation of
TCF to consummate the transactions contemplated hereby in accordance with the
terms of this Agreement is also subject to the following conditions:
(a) REPRESENTATIONS AND COMPLIANCE. The representations and
warranties of Standard in this Agreement shall have been true and correct as of
the date hereof, and such representations and warranties shall be true and
correct as of the Effective Date as updated pursuant to Section 5.6(b) as if
made at and as of the Effective Date, except where the failure to be true and
correct would not have, or would not reasonably be expected to have, a Material
Adverse Effect on Standard; and Standard shall in all material respects have
performed each obligation and agreement and complied with each covenant to be
performed and complied with by it hereunder at or prior to the Effective Date.
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(b) OFFICERS' CERTIFICATE OF STANDARD. Standard shall have
furnished to TCF certificates of the Chief Executive Officer and the Chief
Financial Officer of Standard, dated as of the Effective Date, in which such
officers shall certify to their best Knowledge that they have no reason to
believe that the conditions set forth in Section 6.3(a) have not been fulfilled.
(c) SECRETARIES' CERTIFICATE. Standard shall have furnished to
TCF (i) copies of the text of the resolutions by which the corporate action on
the part of Standard and the Standard Subsidiaries necessary to approve this
Agreement, the Articles of Merger and the transactions contemplated hereby and
thereby were taken, (ii) certificates dated as of the Effective Date executed on
behalf of Standard by its corporate secretary or one of its assistant corporate
secretaries certifying to TCF that such copies are true, correct and complete
copies of such resolutions and that such resolutions were duly adopted and have
not been amended or rescinded and (iii) an incumbency certificate dated as of
the Effective Date executed on behalf of Standard by its corporate secretary or
one of its assistant corporate secretaries certifying the signature and office
of each officer executing this Agreement, the Articles of Merger or any other
agreement, certificate or other instrument executed pursuant hereto or thereto.
(d) OPINION OF COUNSEL TO STANDARD AND BANK. TCF shall have
received an opinion letter dated as of the Effective Date addressed to TCF from
Randall R. Schwartz, Vice President and General Counsel of Standard, based on
customary reliance (including reliance on in-house and/or local counsel as to
matters other than federal law) and subject to customary qualifications, to the
effect that:
(i) Standard is a corporation duly incorporated,
validly existing and in good standing under the laws of the State of
Delaware. New Bank and Bank are each a federally chartered savings
bank duly organized and validly existing under the laws of the United
States.
(ii) Each of [specified principal Standard
Subsidiaries] is a corporation duly organized, validly existing and in
good standing under the laws of its state of incorporation.
(iii) The execution and delivery of this Agreement and
the Articles of Merger by Standard and New Bank to which each is a
party and the consummation of the transactions
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contemplated hereby and thereby will not constitute a breach, default or
violation under the respective Charter or Bylaws of Standard or New Bank or
any of [specified principal Standard Subsidiaries] or, to the best of such
counsel's Knowledge, (A) any material agreement, arrangement or
understanding to which Standard, New Bank or any of [specified principal
Standard Subsidiaries] is a party, (B) any material license, franchise or
permit affecting Standard, New Bank or any of [specified principal Standard
Subsidiaries] or (C) any material law, regulation, order, judgment or
decree applicable to Standard, New Bank or any of [specified principal
Standard Subsidiaries].
(iv) The authorized capital of New Bank consists of
_____________ shares of common stock of which shares are
duly issued and outstanding.
(v) No holder of the capital stock of New Bank is
entitled to any preemptive or other similar rights with respect to the
capital stock of New Bank.
(vi) All of the issued and outstanding shares of each
the Standard Subsidiaries are duly authorized, validly issued, fully
paid and nonassessable.
(vii) Each of Standard and the Standard Subsidiaries
has the corporate power to consummate the transactions on its
respective part contemplated by this Agreement and the Articles of
Merger. Standard and New Bank have duly taken all requisite corporate
action to authorize this Agreement and the Articles of Merger and this
Agreement and the Articles of Merger have been duly executed and
delivered by Standard or New Bank, as the case may be, and, assuming
they are the valid and binding obligations of TCF and Merger Sub under
this Agreement, constitute the valid and binding obligations of
Standard or New Bank enforceable in accordance with their terms,
subject as to the enforcement of remedies to applicable bankruptcy,
insolvency, moratorium and other laws affecting the rights of
creditors generally and to judicial limitations on the enforcement of
the remedy of specific performance.
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(viii) No authorization, consent or approval of, or
filing with any public body, court or public authority by Standard, is
necessary for the consummation by Standard of the transactions
contemplated by this Agreement, the Articles of Merger or the
Conversion/Reincorporation which has not been obtained or made.
(e) AFFILIATE LETTERS. TCF shall have received the letters
referred to in Section 5.10 from all executive officers and directors of
Standard and all shareholders who are affiliates of Standard.
(f) MATERIAL ADVERSE EFFECT. Since the date of this Agreement,
Standard shall not have suffered or experienced a Material Adverse Effect,
except this subsection shall not apply to matters properly disclosed to TCF by
Standard in the Schedules delivered upon execution of this Agreement or a
supplement or amendment delivered by Standard pursuant to Section 5.6(b) for
which TCF has a specific right of termination under Section 7.1(i) hereof.
(g) DISSENTING SHARES. The aggregate number of Dissenting
Shares shall not exceed ten percent (10%) of the outstanding shares of Standard
Common Stock on the Effective Date.
(h) TAX OPINION. TCF shall have received an opinion dated the
Effective Date from Fried, Frank, Harris, Shriver & Jacobson, counsel to TCF, or
KPMG Peat Marwick LLP, TCF's independent auditors, in form and substance
reasonably satisfactory to TCF, substantially to the effect that, on the basis
of facts, representations and assumptions set forth in such opinion which are
consistent with the state of facts existing on the Effective Date, (i) no gain
or loss will be recognized for federal income tax purposes as a result of the
Conversion/Reincorporation and (ii) the Conversion/Reincorporation, the Merger
and the Subsequent Merger will be treated for federal income tax purposes as a
reorganization within the meaning of Section 368(a) of the Code. In rendering
such opinion, Fried, Frank, Harris, Shriver & Jacobson or KPMG Peat Marwick LLP,
may require and rely upon (and may incorporate by reference) representations and
covenants, including those contained in certificates of officers of Standard,
Bank, TCF, Merger Sub and others.
(i) BURDENSOME CONDITION. After the date hereof, there shall
not be any action taken, or any statute, rule, regulation or order enacted,
entered, enforced or deemed applicable to the Conversion/Reincorporation, the
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Merger or the Subsequent Merger by any federal or state governmental entity
which, in connection with the grant of a requisite regulatory approval, imposes
any condition or restriction upon the Resulting Institution, TCF or any other
TCF Subsidiaries, including, without limitation, any requirement to raise
additional capital, which would so materially adversely impact the economic or
business benefits of the transactions contemplated by this Agreement as to
significantly change the advisability of the consummation of the Merger.
(j) CONVERSION/REINCORPORATION. Standard shall have consummated
the Conversion/Reincorporation.
ARTICLE 7
TERMINATION, AMENDMENT AND WAIVER
7.1 TERMINATION. This Agreement may be terminated prior to the
Effective Date:
(a) by mutual consent of TCF and Standard, if the board of
directors of each so determines by vote of a majority of the members of its
entire board;
(b) by either TCF or Standard, if any of the conditions to such
party's obligation to consummate the transactions contemplated in this Agreement
shall have become impossible to satisfy (unless such impossibility shall be due
to the action or failure to act in breach of this Agreement by the party seeking
to terminate this Agreement);
(c) by Standard, if this Agreement is not duly approved by the
shareholders of Standard at a meeting of shareholders (or any adjournment
thereof) duly called and held for such purpose;
(d) by either TCF or Standard, if the Effective Date is not on
or before October 31, 1997 (unless the failure to consummate the Merger by such
date shall be due to the action or failure to act in breach of this Agreement by
the party seeking to terminate this Agreement);
(e) by Standard, if the Average TCF Stock Price is less than
$37.50 subject, however, to the following three sentences. If Standard
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makes an election to terminate this Agreement under this Section 7.1(e),
Standard shall give ten (10) days written notice thereof to TCF (provided that
such notice of election may be withdrawn at any time within the aforementioned
ten-day period). During the seven-day period commencing with its receipt of
such notice, TCF shall have the option to increase the value of the cash, the
TCF Common Stock or a combination thereof being offered to shareholders of New
Bank such that the per share value of the Merger Consideration (valued at the
Average TCF Stock Price in the case of the stock portion of the Merger
Consideration) is equal to $24.69 per share (provided that the Merger shall
qualify as a reorganization within the meaning of Section 368 of the Code). If
TCF so elects within such seven-day period, it shall give prompt written notice
to Standard of such election and the increase in the Merger Consideration
whereupon no termination shall have occurred and this Agreement shall remain in
effect in accordance with its terms (except as the amount of the Merger
Consideration shall have been so modified);
(f) by Standard, if (i) Standard has complied with the
provisions of Section 5.5, (ii) any corporation, partnership, person, other
entity or group, as defined in the 1934 Act (other than TCF or any affiliate of
TCF) (a "Person"), shall have commenced (as such term is used in Rule 14d-2(b)
under the 1934 Act) a bona fide tender offer for all outstanding shares of
Standard Common Stock or any Person shall have made a bona fide written offer
involving a merger or consolidation of Standard or the acquisition of all or
substantially all of its assets or capital stock, (iii) Standard's Board of
Directors shall determine, in its good faith judgment, after consultation with
its independent financial advisors, that such offer is more favorable to
Standard's shareholders when compared to the transactions contemplated hereby,
and (iv) Standard's Board of Directors determines upon the advice of its legal
counsel that if they failed to recommend such offer or accept such proposal then
such failure would be likely to result in a breach of the directors' fiduciary
or legal duties; provided, however, that Standard may not terminate this
Agreement pursuant to this Section 7.1(f) until the expiration of five business
days after written notice of any such offer or proposal referenced in this
Section 7.1(f) has been delivered to TCF, together with a summary of the terms
of any such offer or proposal;
(g) by TCF, if, after the date hereof, any Person shall have
commenced (as such term is used in Rule 14d-2(b) under the 1934 Act) a bona fide
tender offer or exchange offer to acquire at least 25% of the then outstanding
shares of Standard Common Stock, and thereafter the Board of Directors of
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Standard shall have withdrawn, or materially adversely modified or changed its
recommendation of this Agreement and the Merger;
(h) by (i) TCF if Standard commits a willful breach of its
obligations under this Agreement or (ii) Standard if TCF commits a willful
breach of its obligations under this Agreement; and in each instance such
willful breach is not cured within ten days after receipt by the breaching party
of written demand for cure by the non-breaching party. For purposes of this
Agreement, a "willful breach" means a knowing and intentional violation by a
party of any of its covenants, agreements or obligations under this Agreement;
or
(i) by TCF or Standard pursuant to Section 5.6(b).
Any party desiring to terminate this Agreement shall give written notice of
such termination and the reasons therefor to the other party.
7.2 EFFECT OF TERMINATION.
(a) In the event this Agreement is terminated (i) by Standard as
provided in Section 7.1(f); or (ii) by TCF as provided in either Sections 7.1(g)
or 7.1(h), then Standard shall pay to TCF, in immediately available funds, an
amount equal to $15,000,000 within ten (10) business days after demand for
payment by TCF following such termination.
(b) If this Agreement is terminated (i) by Standard as provided
in Section 7.1(b) due to the failure to satisfy the conditions of 6.2(e), or
(ii) by TCF pursuant to Section 7.1(b) due to the failure of any condition under
Section 6.3(a), (b), (c), (d) or (e), Standard shall pay to TCF in immediately
available funds, an amount equal to $1,000,000 within ten (10) business days
after demand for payment by TCF following such termination. In the event this
Agreement is terminated under the circumstances set forth in the first sentence
of this Section 7.2(b) and both of the following conditions are satisfied:
(i) Standard has received an Acquisition Proposal (as
defined in Section 5.5) from a third party after the date hereof and
prior to the termination of this Agreement; and
(ii) Standard and such third party or an affiliate of
such third party enter into a definitive agreement for
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any Acquisition Proposal (the "Signing Event") within twelve months
following the termination of this Agreement,
then Standard shall pay to TCF, in immediately available funds, an amount equal
to $14,000,000 within ten (10) business days after demand for payment by TCF
following the Signing Event.
(c) In the event this Agreement is terminated by Standard
pursuant to Section 7.1(b) due to the failure of a condition under Section
6.2(a), (b), (c) or (d), TCF shall pay to Standard, in immediately available
funds, an amount equal to $1,000,000 within ten (10) business days after demand
for payment by Standard following such termination.
(d) In the event this Agreement is terminated by Standard
pursuant to Section 7.1(h), then TCF shall pay to Standard, in immediately
available funds, an amount equal to $15,000,000 within ten (10) business days
after demand for payment by Standard following such termination.
Notwithstanding anything contained in this Agreement to the contrary, the
payment of the termination fee pursuant to the provision of this Section 7.2
shall be liquidated damages and in lieu of any and all claims that the party
entitled to such fee has, or might have, and the party entitled to such
termination fee shall not have any other rights or claims against the other
party.
7.3 AMENDMENT. This Agreement may not be amended except by an
instrument in writing approved by the parties to this Agreement and signed on
behalf of each of the parties hereto; provided, however, that after approval of
this Agreement and the Merger by the shareholders of Standard, no such amendment
shall alter or change (i) the amount or kind of consideration to be received in
exchange for shares of New Bank Common Stock except as provided herein, or (ii)
any of the terms or conditions of this Agreement if such alteration or change
would adversely affect the holders of shares of Standard Common Stock or New
Bank Common Stock.
7.4 WAIVER. At any time prior to the Effective Date, any party
hereto may (a) extend the time for the performance of any of the obligations or
other acts of the other party hereto or (b) waive compliance with any of the
agreements of the other party or with any conditions to its own obligations, in
each case only to the extent such obligations, agreements and conditions are
intended for its benefit.
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ARTICLE 8
GENERAL PROVISIONS
8.1 PUBLIC STATEMENTS. Neither Standard nor TCF shall make any
public announcement or statement with respect to the Merger, this Agreement or
any related transactions without the approval of the other party; provided,
however, that either TCF or Standard may, upon reasonable notice to the other
party, make any public announcement or statement that it believes is required by
federal securities law. To the extent practicable, Standard and TCF will
consult with the other with respect to any such public announcement or
statement.
8.2 NOTICES. All notices and other communications hereunder shall be
in writing and shall be sufficiently given if made by hand delivery, by fax, by
telecopier, by overnight delivery service, or by registered or certified mail
(postage prepaid and return receipt requested) to the parties at the following
addresses (or at such other address for a party as shall be specified by it by
like notice):
If to TCF:
TCF Financial Corporation
801 Marquette Avenue
Minneapolis, MN 55401
Attn: Chairman and Chief Executive Officer
with copies to:
TCF Financial Corporation
801 Marquette Avenue
Minneapolis, MN 55401
Attn: Gregory J. Pulles, Vice Chairman and General Counsel
and
Kaplan, Strangis and Kaplan, P.A.
90 South Seventh Street
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5500 Norwest Center
Minneapolis, MN 55402
Attn: Bruce J. Parker
If to Standard:
Standard Financial, Inc.
800 Burr Ridge Parkway
Burr Ridge, IL 60521
Attn: Chairman, President and Chief Executive Officer
with copies to:
Skadden, Arps, Slate, Meagher & Flom (Illinois)
333 W. Wacker Drive
Suite 2100
Chicago, IL 60606
Attn: Wayne W. Whalen
All such notices and other communications shall be deemed to have been duly
given as follows: when delivered by hand, if personally delivered; when
received, if delivered by registered or certified mail (postage prepaid and
return receipt requested); when receipt acknowledged, if faxed or telecopied;
and the next day delivery after being timely delivered to a recognized overnight
delivery service.
8.3 INTERPRETATION. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. References to Sections and Articles refer to
Sections and Articles of this Agreement unless otherwise stated. Words such as
"herein," "hereinafter," "hereof," "hereto," "hereby" and "hereunder," and word
of like import, unless the context requires otherwise, refer to this Agreement
(including the Exhibits and Schedules hereto). As used in this Agreement, the
masculine, feminine and neuter genders shall be deemed to include the others if
the context requires.
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8.4 SEVERABILITY. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.
8.5 MISCELLANEOUS. This Agreement (together with all other documents
and instruments referred to herein): (a) constitutes the entire agreement, and
supersedes all other prior agreements and undertakings, both written and oral,
among the parties, with respect to the subject matter hereof; (b) shall be
governed in all respects, including validity, interpretation and effect, by the
internal laws of the State of Delaware, without giving effect to the principles
of conflict of laws thereof; and (c) shall not be assigned by operation of law
or otherwise.
8.6 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS. The
representations and warranties of the parties set forth herein shall not survive
the consummation of the Merger, but covenants that specifically relate to
periods, activities or obligations subsequent to the Merger shall survive the
Merger. In addition, if this Agreement is terminated pursuant to Section 7.1,
the covenants contained in Section 5.4, 5.7(c) and 7.2 shall survive such
termination.
8.7 SCHEDULES. The Schedules and other disclosure referred to in
this Agreement shall be delivered as of the date hereof under cover of a letter
from the Chief Executive Officer, Vice Chairman, the President or the Chief
Financial Officer of Standard, Bank or TCF, as the case may be.
8.8 DESCRIPTIVE HEADINGS. The descriptive headings herein are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
8.9 PARTIES IN INTEREST. Except as expressly provided in Section
5.15, this Agreement shall be binding upon and inure solely to the benefit of
each party hereto and their respective successors, and nothing in this
Agreement, express or implied, is intended to confer upon any other person,
including but not limited to employees of Standard or any Standard Subsidiary,
any rights or remedies of any nature whatsoever under or by reason of this
Agreement.
8.10 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, and each such counterpart shall be deemed to be an
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original instrument, but all such counterparts together shall constitute but one
agreement.
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IN WITNESS WHEREOF, TCF and Standard have caused this Agreement to be
executed on the date first written above by their respective officers.
TCF FINANCIAL CORPORATION
By: /s/ Gregory J. Pulles
----------------------------------
Gregory J. Pulles
Vice Chairman and General Counsel
STANDARD FINANCIAL, INC.
By: /s/ David H. Mackiewich
------------------------------
David H. Mackiewich
Chairman and President
<PAGE>
EXHIBIT A
FORM OF STANDARD AFFILIATE LETTER
March __, 1997
TCF Financial Corporation
801 Marquette Avenue
Minneapolis, Minnesota 55402
Gentlemen:
Pursuant to Section 5.10 of the Agreement and Plan of Reorganization dated
as of March __, 1997 (the "Merger Agreement") between TCF Financial Corporation
("TCF") and Standard Financial, Inc. ("Standard"), I, as an affiliate of
Standard, acknowledge that I may transfer the shares of TCF Common Stock
received in the Merger contemplated by the Merger Agreement only (i) in a
registration under the Securities Act of 1933, as amended (the "1933 Act"), (ii)
in compliance with the requirements of paragraphs (c) and (d) of Rule 145 under
the 1933 Act, as indicated in the restrictive legend that will appear on my
stock certificate, or (iii) pursuant to another exemption from registration
under the 1933 Act for such offer and sale.
TCF's and Standard's transfer agent will be given an appropriate stop
transfer order and will not be required to register any attempted transfer of
the shares of TCF Common Stock (as defined in the Merger Agreement) or Standard
Common Stock unless the transfer has been effected in compliance with the terms
of this letter agreement.
Very truly yours,
------------------------------
[Name of Standard Affiliate]
<PAGE>
Agreed and accepted this
___ day of March, 1997
TCF FINANCIAL CORPORATION
By
------------------------------
William A. Cooper
Chairman and Chief Executive Officer
<PAGE>
EXHIBIT 99.1
Standard Financial TCF
------------------ ---
Thomas Ryan, Exec VP, CFO Cynthia Lee (Investors)
(630) 986-7833 (612) 661-8859
Randall Schwartz, VP, Gen. Counsel Ann Storberg (Investors)
(630) 986-7836 (612) 661-8883
Bill Murphy, Financial Relations Bd. Elizabeth Anders (Media)
(312) 640-6764 (612) 661-8853
FOR IMMEDIATE RELEASE
TCF AND STANDARD FINANCIAL AGREE TO MERGE
CREATING $10 BILLION COMPANY
MINNEAPOLIS, March 17, 1997 - TCF Financial Corporation (TCF) (NYSE:TCB)
and Standard Financial, Inc. (Standard) (Nasdaq--NNM:STND) today announced a
definitive agreement to merge, creating a company with a combined $10 billion in
assets and providing access to 276 financial services offices and more than 900
ATMs in five midwestern states.
The transaction is structured as a cash election merger, providing for an
exchange of TCF common stock and cash for Standard shares. TCF will be the
surviving corporation in the merger. The transaction is expected to have an
aggregate value, based on the closing price of TCF common stock on March 14, of
approximately $424 million, or approximately $25 per Standard common share. The
transaction value is approximately 160 percent of Standard's book value. TCF
expects the merger to be accretive to both reported and cash earnings in 1998.
TCF Chairman and Chief Executive Officer William A. Cooper said that
Standard's retail branch network complements TCF's 35 Illinois bank branches, 26
of which are in the Chicago area. "This union significantly expands our
profitable and growing Illinois franchise," said Cooper. "Chicago has long been
an attractive market for TCF - a large, urban-based population receptive to
banking convenience - and Standard has an exemplary tradition of meeting
community banking needs." Cooper added that no bank branches will be closed in
connection with the merger.
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2
"Joining TCF will accelerate our transformation to a leading consumer bank,
for the benefit of our shareholders, customers, and the communities we serve,"
said Standard Chairman and President David Mackiewich. "We will have access to
a broader range of products and services, convenient banking locations -
including seven-day banking at supermarkets and 248 Cash Station ATMs - and the
financial resources of a dynamic regional bank."
"We believe this merger will produce long-term revenue enhancements and
meaningful cost savings," said Cooper. He noted that the strategic plan for
improving the Chicago franchise follows TCF's community banking philosophy:
increasing lower interest-cost checking, savings, and money market deposit
accounts; increasing higher-yielding consumer and commercial loans; introducing
complementary products and services such as annuities, mutual funds, debit
cards; and consolidating back-office operations.
For Standard's stockholders, the transaction will be structured as a cash
election merger in which holders of Standard's stock will have the right to
choose either cash or TCF common stock, or a combination of the two. Between 40
percent and 60 percent of the purchase price will be paid in shares of TCF
common stock, and the remainder will be paid in cash. The transaction will be a
tax-free exchange for Standard's stockholders to the extent they receive shares
of TCF common stock.
The exchange ratio for shares of Standard stock will depend on the average
trading price of TCF stock during the 30 trading days preceding the merger. If
the average trading price of TCF stock during that period is between $43.75 and
$47.75, each Standard share will be converted into the right to receive
consideration having an aggregate value between $24.69 and $25.81. If the
average trading price of TCF stock is below $43.75 but greater than or equal to
$37.50, each Standard share will be converted into the right to receive
consideration having an aggregate value of $24.69. If the average trading price
of TCF stock is above $47.75 but less than or equal to $54.00, each Standard
share will be converted into the right to receive consideration having an
aggregate value of $25.81.
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3
The definitive agreement was signed after completion of due diligence and
approval of both companies' boards of directors. It is subject to approval by
Standard's stockholders, and required regulatory filings and approvals. The
merger is expected to close in the third quarter of 1997 and be accounted for as
a purchase transaction. Standard has agreed to pay a $15 million termination
fee if the merger agreement is terminated under certain circumstances.
In connection with the transaction, TCF will record intangibles of
approximately $200 million.
After the merger, Standard's bank branches will be combined with TCF Bank
Illinois. The directors of Standard will join TCF Bank Illinois' board of
directors. Mackiewich will become executive chairman of TCF Bank Illinois and a
director of TCF Financial Corporation. Michael B. Johnstone, president and
chief executive officer of TCF Bank Illinois, will continue in that capacity.
TCF will contribute $1 million over five years to Illinois community
organizations, consistent with TCF's philanthropic giving program which is
focused on housing and economic development in low-income communities, and K-12
education reform.
In connection with the merger, Standard has announced that it has postponed
its annual meeting and plans to call a special meeting at which it will seek
stockholder approval of the merger.
Standard is a community-oriented thrift institution with $2.4 billion in
assets and 14 full-service offices on the southwest side of Chicago and in the
nearby southwestern and western suburbs. Excluding a regulatory special
assessment, Standard reported record 1996 earnings of $17.7 million, or $1.13
per share, a return on average assets of 0.78 percent, and a return on average
equity of 6.60 percent.
TCF is a Minneapolis-based stock savings bank holding company with $7.1
billion in assets and more than 260 financial services offices. Its bank
subsidiaries operate in Minnesota, Illinois, and Wisconsin as TCF Bank, and in
Michigan and Ohio as Great Lakes Bancorp. Affiliates include consumer finance,
mortgage banking, title insurance, annuity and mutual fund sales companies.
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4
Excluding a regulatory special assessment, TCF reported record 1996 earnings of
$107.4 million, or $3.04 per share, a return on average assets of 1.56 percent,
and a return on average common equity of 20.22 percent. TCF intends to convert
its federal savings bank subsidiaries into national banks in the 1997 second
quarter, pending all required regulatory approvals.
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