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UNITED STATES
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): January 13, 2000
BANCFIRST OHIO CORP.
(Exact name of registrant as specified in its charter)
Ohio 0-18840 31-1294136
(State or other (Commission (IRS Employer
jurisdiction of File Number) Identification No.)
incorporation)
422 Main Street, P.O. Box 4658
Zanesville, Ohio 43702
(Address of principal executive offices, with zip code)
Registrant's telephone number, including area code: (740) 452-8444
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ITEM 5. OTHER EVENTS.
On January 13, 2000, the Company entered into an Agreement and Plan of
Reorganization with Milton Federal Financial Corporation ("MFFC") and Milton
Federal Savings Bank to merge MFFC with and into the Company (the "Merger"). In
connection with the Merger, the Company will issue .444 shares of its common
stock and $6.80 for each of the 2,099,995 outstanding shares of MFFC. Based upon
the closing price for the Company's common stock of $20.375 on January 12, 2000,
the transaction would be valued at $33.3 million. The merger is subject to the
approval of the shareholders of MMFC, regulatory approval and other customary
conditions of closing. The Company expects to fund the cash portion of the
acquisition through cash from operations. Attached hereto as Schedule A and
incorporated herein by this reference is a copy of the press release issued by
BancFirst Ohio Corp. on January 13, 2000.
The terms of the Merger, including the purchase price and form of
consideration was the result of arms'-length negotiations between the parties.
Prior to this transaction, there has been no material relationship between MFFC
and the Company, its affiliates, any officer or director of the Company or any
of their affiliates.
In connection with the Merger, the Company will acquire all of the
equipment and other physical property of MFFC and its wholly-owned subsidiary,
Milton Federal Savings Bank ("MFSB"), consisting of equipment and physical
property used in MFSB's banking business. The Company intends to continue to use
the assets acquired in this transaction in the manner utilized by MFSB prior to
the acquisition.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(a) Financial Statements of businesses acquired
Not Applicable
(b) Pro forma financial information
Not Applicable
(c) Exhibits.
2.1 Agreement and Plan of Reorganization by and among BancFirst
Ohio Corp., The First National Bank of Zanesville, Milton
Federal Financial Corporation and Milton Federal Savings Bank
dated January 13, 2000.
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SIGNATURES
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 hereunto duly authorized on this 18th day of January, 2000.
BANCFIRST OHIO CORP.
By: /s/ Kim M. Taylor
-----------------------
Kim M. Taylor,
Chief Financial Officer
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SCHEDULE A
BANCFIRST OHIO CORP. AND MILTON FEDERAL FINANCIAL CORPORATION SIGN DEFINITIVE
AGREEMENT
ZANESVILLE, Ohio -- Jan. 13, 2000--BancFirst Ohio Corp. (Nasdaq: BFOH) and
Milton Federal Financial Corporation (Nasdaq: MFFC) jointly announced today the
signing of a definitive agreement for the acquisition of MFFC by BFOH. BFOH is a
single bank holding company, with the First National Bank of Zanesville as its
wholly owned subsidiary. The bank operates as First National Bank in Muskingum
County, Ohio and as Bank First National, a division of The First National Bank
of Zanesville in all other areas. It has nine full service banking offices in
Muskingum County, six in Licking County, five in Franklin County and two banking
locations in the Dayton area. The bank also has business lending centers in
Columbus, Cleveland, Dayton, Cincinnati, Louisville, Indianapolis and Detroit
and offers complete trust services through First Financial Services Group, N.A.
and financial planning services through Chornyak & Associates, Inc.,
subsidiaries of First National Bank. MFFC, the holding company for Milton
Federal Savings Bank has four offices located in Montgomery and Miami Counties.
Upon completion of the merger, Milton Federal Savings Bank will be merged into
First National Bank
Under the terms of the agreement, BFOH will exchange .444 shares of its common
stock and $6.80 for each of the 2,099,995 outstanding shares of MFFC. MFFC's
outstanding stock options will be redeemed for cash equal to the acquisition
price per share less than the exercise price of the options prior to closing.
Based on BFOH's closing price of $20.375 on January 12, 2000, the transaction
would be valued at $33.3 million. The merger will be accounted for as a
purchase, and is expected to be accretive to earnings per share in the first
full year of combined operations. The merger is expected to be consummated in
the second quarter of 2000, pending approval by MFFC's shareholders, regulatory
approval and other customary conditions of closing. The stock portion received
in the transaction is expected to be considered "tax-free". MFFC has granted to
BFOH an option to purchase up to 19.9% of MFFC's outstanding shares upon the
occurrence of certain events.
At September 30, 1999, MFFC had total assets of $256.7 million, deposits of
$168.5 million and shareholders' equity of $25.0 million. For the twelve months
ended September 30, 1999, MFFC reported net income of $1.6 million with a return
on assets of 0.63% and a return on shareholders' equity of 6.19%. At September
30, 1999, BFOH had total assets of $1.2 billion, deposits of $789.3 million and
shareholders' equity of $83.6 million.
Gary N. Fields, President and Chief Executive Officer of BFOH, states, "We are
very pleased to announce this merger with Milton Federal Financial Corporation.
This acquisition is consistent with our strategy of developing banking
franchises in high growth markets along the I-70 corridor and certainly
compliments our existing banking franchise in the Dayton area. Also, this
acquisition is consistent with our stated priorities of having very high asset
quality. We will now have a $1.5 billion bank that will be well positioned to
pursue other growth opportunities. We look forward to welcoming Milton Federal's
customers and employees."
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Glenn E. Aidt, President and Chief Executive Officer of Milton Federal Financial
Corporation, stated, "We believe that this transaction will benefit our
shareholders, customers, employees and community. Our shareholders will realize
significant benefits from the increased liquidity and market value this
combination provides. BancFirst is one of Ohio's premier community financial
institutions and offers a broad array of products that meet the needs of our
customers."
THIS COMMUNICATION SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF
AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THE SECURITIES CONTEMPLATED
HEREBY IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL
PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH
STATE. AN OFFER TO SELL SHALL ONLY BE MADE PURSUANT TO A PROSPECTUS PREPARED
PURSUANT TO THE SECURITIES ACT OF 1933.
This release contains certain estimates and projections regarding the combined
company following the merger. These estimates and projections constitute
forward-looking statements (within the meaning of the Private Securities
Litigation reform act of 1995), which involve significant risks and
uncertainties. Actual results may differ materially from the results discussed
in these forward-looking statements. Internal and external factors that could
cause such a difference include, but are not limited to: (1) expected cost
savings from the mergers cannot be fully realized or realized within the
expected time frame; (2) revenues following mergers are lower than expected; (3)
competitive pressures among depository institutions increase significantly; (4)
costs or difficulties related to the integration; (5) changes in the interest
rate environment reduce net interest income; (6) general economic conditions
deteriorate, either nationally or in the markets in which the combined company
will be doing business; and (7) legislation or regulatory changes adversely
affect the businesses in which the combined company would be engaged.
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AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (hereinafter referred to as
the "AGREEMENT"), made and entered into this 13th day of January, 2000, by and
among BancFirst Ohio Corp., a bank holding company incorporated under the laws
of Ohio (hereinafter referred to as "BFOH"); The First National Bank of
Zanesville, a national bank incorporated under the laws of the United States
(hereinafter referred to as the "BANK"); Milton Federal Financial Corporation, a
savings and loan holding company incorporated under the laws of Ohio
(hereinafter referred to as "MFFC"); and Milton Federal Savings Bank, a federal
savings bank incorporated under the laws of the United States (hereinafter
referred to as "MFSB");
WITNESSETH:
WHEREAS, the authorized capital of BFOH consists of 20,000,000 common
shares, each without par value, 7,595,668 of which are issued and outstanding;
WHEREAS, the authorized capital of the BANK consists of 2,559,874
shares of common stock, $10 par value per share, 2,559,874 of which are issued
and outstanding and are owned of record by BFOH;
WHEREAS, the authorized capital of MFFC consists of 9,000,000 common
shares, each without par value, 2,099,995 of which are issued and outstanding,
and 1,000,000 preferred shares, each without par value, none of which is issued
or outstanding;
WHEREAS, the authorized capital of MFSB consists of 10,000,000 shares
of common stock, each without par value, 100 of which are issued and outstanding
and held of record by MFFC; and
WHEREAS, the Boards of Directors of BFOH, the BANK, MFFC and MFSB
believe that the merger of MFFC with and into BFOH and the subsequent merger of
MFSB with and into the BANK are in the best interests of each of them and their
shareholders;
NOW THEREFORE, in consideration of the premises and the mutual
covenants and agreements hereinafter set forth, BFOH, the BANK, MFFC and MFSB,
each intending to be legally bound, hereby agree as follows:
ARTICLE ONE
THE MERGER
SECTION 1.01. MERGER OF MFFC AND BFOH. (a) In accordance with the terms
and subject to the conditions of this AGREEMENT and Chapter 1701 of the Ohio
Revised Code (hereinafter referred to as the "ORC"), MFFC shall merge with and
into BFOH at the BFOH EFFECTIVE TIME (hereinafter defined); BFOH shall be the
continuing, surviving and resulting
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corporation in the merger of MFFC with and into BFOH (hereinafter referred to as
the "BFOH MERGER SURVIVOR"); BFOH shall continue to exist as a bank holding
company incorporated under the laws of Ohio; and BFOH shall be the only one of
BFOH and MFFC to continue its separate corporate existence after the BFOH
EFFECTIVE TIME.
(b) The name of the BFOH MERGER SURVIVOR in the merger of MFFC
with and into BFOH (hereinafter referred to as the "BFOH MERGER") shall be
"BancFirst Ohio Corp." The principal office of the BFOH MERGER SURVIVOR shall be
located at 422 Main Street, Zanesville, Ohio 43701.
(c) The purposes for which the BFOH MERGER SURVIVOR shall be
formed shall be identical to the purposes for which BFOH was formed.
(d) The authorized capital of the BFOH MERGER SURVIVOR shall
consist of 20,000,000 common shares, each without par value.
(e) The Articles of Incorporation of BFOH at the BFOH
EFFECTIVE TIME shall be the Articles of Incorporation of the BFOH MERGER
SURVIVOR until amended in accordance with law.
(f) The Code of Regulations of BFOH at the BFOH EFFECTIVE TIME
shall be the Code of Regulations of the BFOH MERGER SURVIVOR until amended in
accordance with law.
(g) After the BFOH EFFECTIVE TIME, the persons identified on
the schedule attached hereto as Exhibit A shall be the officers and directors of
the BFOH MERGER SURVIVOR, each to hold office in accordance with applicable law
and regulations.
(h) James H. Nicholson, whose address is 956 Southeast Court,
Zanesville, Ohio 43701, a natural person and resident of Muskingum County, the
county in which the principal office of the BFOH MERGER SURVIVOR is to be
located, shall be the statutory agent in Ohio upon whom any process, notice or
demand against BFOH, MFFC, or the BFOH MERGER SURVIVOR may be served.
SECTION 1.02. MERGER OF MFSB AND THE BANK. (a) In accordance with the
terms and subject to the conditions of this AGREEMENT, Section 5.33 of the
Regulations of the Office of the Comptroller of the Currency (hereinafter
referred to as the "OCC"), Section 552.13 of the Regulations of the Office of
Thrift Supervision (hereinafter referred to as the "OTS") and such Agreement To
Merge as may be required by the OCC or the OTS, MFSB shall merge with and into
the BANK at the BANK EFFECTIVE TIME (hereinafter defined); the BANK shall be the
continuing, surviving and resulting corporation in the merger of MFSB with and
into the BANK (hereinafter referred to as the "BANK MERGER SURVIVOR"); the BANK
shall continue to exist as a national bank incorporated under the laws of the
United States; and the BANK shall be the only one of MFSB and the BANK to
continue its separate corporate existence after the BANK EFFECTIVE TIME.
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(b) The name of the BANK MERGER SURVIVOR in the merger of MFSB
with and into the BANK (hereinafter referred to as the "BANK MERGER") shall be
"The First National Bank of Zanesville." The principal office of the BANK MERGER
SURVIVOR shall be located at 422 Main Street, Zanesville, Ohio 43701.
(c) The purposes for which the BANK MERGER SURVIVOR shall be
formed shall be identical to the purposes for which the BANK was formed.
(d) The authorized capital of the BANK MERGER SURVIVOR shall
consist of 3,236,250 shares of common stock, $10 par value per share.
(e) The Articles of Association and Bylaws of the BANK, as in
effect immediately before the BANK EFFECTIVE TIME, shall be the Articles of
Association and Bylaws of the BANK MERGER SURVIVOR after the BANK EFFECTIVE TIME
until amended in accordance with law.
(f) After the BANK EFFECTIVE TIME, the persons identified on
the schedule attached hereto as Exhibit B shall be the officers and directors of
the BANK MERGER SURVIVOR, each to hold office in accordance with applicable law
and regulations.
(g) After the BANK EFFECTIVE TIME, the offices of the BANK and
MFSB at the locations listed on the schedule attached hereto as Exhibit C shall
be the offices of the BANK MERGER SURVIVOR.
SECTION 1.03. CLOSING AND EFFECTIVE TIMES. (a) The closing of the
transactions contemplated by this AGREEMENT (hereinafter referred to as the
"CLOSING") shall take place at a time and on a date selected mutually by BFOH
and MFFC within five business days following the satisfaction or waiver of the
last of the conditions set forth in Article Seven of this AGREEMENT to be
satisfied or waived.
(b) On the day of the CLOSING, BFOH and MFFC shall cause a
Certificate of Merger in respect of the BFOH MERGER to be filed with the
Secretary of State of the State of Ohio in accordance with Chapter 1701 of the
ORC. The BFOH MERGER shall become effective at 11:58 p.m. on the date of such
filings or on such later date as may be set forth in such Certificate of Merger
(herein referred to as the "BFOH EFFECTIVE TIME").
(c) On or before the day of the CLOSING, the BANK and MFSB
shall request the OCC to deem the BANK MERGER to be effective at 11:59 p.m. on
the date of the CLOSING. The BANK MERGER shall become effective at 11:59 p.m. on
the date of the CLOSING or on such later date as may be determined by the OCC
(herein referred to as the "BANK EFFECTIVE TIME").
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ARTICLE TWO
CONVERSION AND CANCELLATION OF
SHARES IN THE BFOH MERGER AND THE BANK MERGER
SECTION 2.01. CONVERSION AND CANCELLATION OF SHARES. (a) At the BFOH
EFFECTIVE TIME and as a result of the BFOH MERGER, automatically and without
further act of BFOH, MFFC or the holders of MFFC common shares or BFOH common
shares, the following shall occur:
(i) Each outstanding MFFC common share shall be cancelled
and extinguished and, in substitution and exchange
therefor, the holders thereof shall be entitled,
subject to and upon compliance with Section 2.02 of
this AGREEMENT, to receive from BFOH $6.80 cash
(hereinafter referred to as the "CASH CONSIDERATION")
and 0.444 common share of BFOH (hereinafter referred
to as the "SHARE CONSIDERATION"); provided, however,
that, in the event of the establishment of a record
date for the payment, or the payment, by BFOH of any
stock dividends, stock splits or distributions in, or
combinations or subdivisions of, BFOH common shares
between the date of this AGREEMENT and the BFOH
EFFECTIVE TIME, the SHARE CONSIDERATION shall be
adjusted appropriately (hereinafter referred to as an
"APPROPRIATE ADJUSTMENT");
(ii) Each of the options to purchase 228,227 MFFC common
shares granted pursuant to the MFFC 1995 Stock Option
and Incentive Plan (hereinafter referred to as the
"STOCK OPTION PLAN"), to the extent not duly
exercised before the BFOH EFFECTIVE TIME, shall be
canceled and extinguished and, in substitution and
exchange therefor, the holders thereof shall be
entitled to receive from BFOH cash in the amount of
the difference between (I) the sum of $6.80, plus the
product of 0.444 (subject to an APPROPRIATE
ADJUSTMENT), multiplied by the mean average of the
closing bid and asked prices for a common share of
BFOH on the NASDAQ System for the ten trading days
ending two trading days before the CLOSING
(hereinafter referred to as the "AVERAGE"), less (II)
$13.69;
(iii) Each issued MFFC common share which is not
outstanding and which is held in the MFFC treasury
shall be cancelled and extinguished; and
(iv) Each BFOH common share outstanding before the BFOH
EFFECTIVE TIME shall remain issued and outstanding
after the
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BFOH EFFECTIVE TIME as a common share of
the BFOH MERGER SURVIVOR.
(b) At the BANK EFFECTIVE TIME and as a result of the BANK
MERGER, automatically and without further act of the BANK, MFSB, BFOH or MFFC,
(i) each share of common stock of MFSB shall be cancelled and extinguished and
(ii) the shares of common stock of the BANK issued and outstanding immediately
before the BANK EFFECTIVE TIME shall be and constitute the issued and
outstanding shares of the BANK MERGER SURVIVOR immediately after the BANK
EFFECTIVE TIME.
SECTION 2.02. SHARE CERTIFICATES IN THE BFOH MERGER AND THE BANK
MERGER. (a) Within three business days after the BFOH EFFECTIVE TIME, BFOH shall
deposit the aggregate CASH CONSIDERATION and the aggregate SHARE CONSIDERATION
with Chase Mellon Shareholder Services, 85 Challenger Road, Ridgefield Park, New
Jersey 07660, as exchange agent, and shall cause to be mailed to each holder of
record of MFFC common shares a form letter of transmittal and instructions for
use in effecting the surrender for exchange of the certificates evidencing the
MFFC common shares cancelled and extinguished as a result of the BFOH MERGER
(hereinafter referred to collectively as the "CERTIFICATES" and individually as
the "CERTIFICATE"). Upon surrender of a CERTIFICATE for cancellation, together
with such letter of transmittal, duly executed, the holder of such CERTIFICATE
shall be entitled to receive in exchange therefor a certificate evidencing the
BFOH common shares and the cash to which the holder is entitled in accordance
with the provisions of this AGREEMENT, and the CERTIFICATE so surrendered shall
thereafter be cancelled forthwith.
(b) In the event that any holder of MFFC common shares
cancelled and extinguished in accordance with this AGREEMENT is unable to
deliver the CERTIFICATE which evidences such shares of the holder, BFOH, in the
absence of actual notice that any shares theretofore evidenced by any such
CERTIFICATE have been acquired by a bona fide purchaser, shall deliver to such
holder the amount to which such holder is entitled in accordance with the
provisions of this AGREEMENT upon the presentation of all of the following:
(i) Evidence to the reasonable satisfaction of BFOH that
any such CERTIFICATE has been lost, wrongfully taken
or destroyed;
(ii) Such security or indemnity as may be reasonably
requested by BFOH to indemnify and hold BFOH
harmless; and
(iii) Evidence to the reasonable satisfaction of BFOH that
such person is the owner of the shares theretofore
represented by each CERTIFICATE claimed by him to be
lost, wrongfully taken or destroyed and that he is
the person who would be entitled to present each such
CERTIFICATE for exchange pursuant to this AGREEMENT.
(c) In the event that the issuance of BFOH common shares,
payment of cash or payment of cash in lieu of fractional shares in accordance
with this AGREEMENT is to be made to a person other than the person in whose
name the CERTIFICATE surrendered is
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registered, the CERTIFICATE so surrendered shall be properly endorsed or
otherwise in proper form for transfer and the person requesting such issuance or
payment shall pay any transfer or other taxes required by reason of the issuance
or payment to a person other than the registered holder of the CERTIFICATE
surrendered or establish to the satisfaction of BFOH that such tax has been paid
or is not applicable. Until surrendered in accordance with the provisions of
this Section 2.02, each CERTIFICATE shall represent for all purposes the right
to receive the CASH CONSIDERATION and the SHARE CONSIDERATION (hereinafter
collectively referred to as the "BFOH MERGER CONSIDERATION") and cash in lieu of
fractional shares as determined pursuant to this AGREEMENT.
(d) No dividends or other distributions declared after the
BFOH EFFECTIVE TIME with respect to BFOH common shares and payable to the
holders of record thereof after the BFOH EFFECTIVE TIME shall be paid to the
holder of any unsurrendered CERTIFICATE until the holder thereof shall surrender
such CERTIFICATE. Subject to the effect, if any, of applicable law, after the
subsequent surrender and exchange of a CERTIFICATE, the record holder thereof
shall be entitled to receive any such dividends or other distributions, without
any interest thereon, which theretofore had become payable with respect to BFOH
common shares represented by such CERTIFICATE.
(e) No certificates or scrip representing fractional shares of
BFOH common shares shall be issued upon the surrender for exchange of
CERTIFICATES. No dividend or distribution with respect to BFOH common shares
shall be payable on or with respect to any such fractional shares and such
fractional shares shall not entitle the owner thereof to vote or to any other
rights of a BFOH shareholder. In lieu of any such fractional share, BFOH shall
pay to each former holder of MFFC common shares who otherwise would be entitled
to receive a fraction of a BFOH common share, an amount in cash equal to the
product of (i) the AVERAGE, multiplied by (ii) such fraction.
(f) As soon as practicable after the BANK EFFECTIVE TIME, the
certificate(s) evidencing the MFSB shares of common stock cancelled and
extinguished as a result of the BANK MERGER shall be surrendered to BFOH for
cancellation. At and after the BANK EFFECTIVE TIME, the certificate(s)
evidencing the outstanding shares of stock of the BANK before the BANK EFFECTIVE
TIME shall evidence the outstanding shares of stock of the BANK MERGER SURVIVOR
after the BANK EFFECTIVE TIME.
SECTION 2.03. COMPLIANCE WITH SECTION 2.02. No BFOH common shares, cash
or payment in lieu of fractional shares shall be delivered by BFOH to any former
holder of MFFC common shares in accordance with this AGREEMENT until any such
holder shall have complied with paragraphs (a) through (e) of Section 2.02 of
this AGREEMENT.
SECTION 2.04. PAYMENT IN SATISFACTION OF RIGHTS. All payments made upon
the surrender of CERTIFICATES pursuant to this Article Two shall be deemed to
have been made in full satisfaction of all rights pertaining to the shares
evidenced by such CERTIFICATES.
SECTION 2.05. NO FURTHER REGISTRATION OF TRANSFER. After the BFOH
EFFECTIVE TIME, there shall be no further registration of transfer of MFFC
common shares on the stock transfer books of MFFC. In the event that, after the
BFOH EFFECTIVE TIME,
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CERTIFICATES evidencing such shares are presented for transfer, they shall be
cancelled and exchanged as provided in this Article Two.
SECTION 2.06. DISSENTING SHARES. (a) Notwithstanding anything in this
AGREEMENT to the contrary, the MFFC common shares which are outstanding
immediately before the BFOH EFFECTIVE TIME and which are held by shareholders
who shall not have voted such shares in favor of this AGREEMENT, who shall have
delivered to BFOH or MFFC a written demand for appraisal of such shares in the
manner provided in Section 1701.85 of the ORC and who shall have otherwise
complied fully with all of the requirements of Section 1701.85 of the ORC shall
not be converted into or be exchangeable for the right to receive the
consideration provided in this AGREEMENT; provided, however, that (a) each of
such shares (herein referred to as the "DISSENTING SHARES") shall nevertheless
be cancelled and extinguished in accordance with this AGREEMENT; (b) the holder
of DISSENTING SHARES, upon full compliance with the requirements of Section
1701.85 of the ORC, shall be entitled to payment of the appraised value of such
shares in accordance with the provisions of Section 1701.85 of the ORC; and (c)
in the event (i) any holder of DISSENTING SHARES shall subsequently withdraw
such holder's demand for appraisal of such shares within sixty days after the
BFOH EFFECTIVE TIME or shall fail to establish such holder's entitlement to
appraisal rights in accordance with Section 1701.85 of the ORC, or (ii) any
holder of DISSENTING SHARES has not filed a petition demanding a determination
of the value of such shares within the period provided in Section 1701.85 of the
ORC, such holder shall forfeit the right to appraisal of such shares and such
shares shall thereupon be deemed to have been converted into and to have become
exchangeable for the right to receive the consideration provided in this
AGREEMENT.
(b) MFFC shall give BFOH (i) prompt notice of any written
demands for appraisal of any MFFC common shares made under Section 1701.85 of
the ORC, attempted withdrawals of such demands and any other instruments served
pursuant to the ORC and received by MFFC relating to DISSENTING SHARES and (ii)
the opportunity to participate in all negotiations and proceedings with respect
to the exercise of dissenter's rights. MFFC shall not, except with the prior
written consent of BFOH, voluntarily make any payment with respect to any
demands for payment for MFFC common shares under the ORC, offer to settle or
settle any such demands or approve any withdrawal of any such demands.
SECTION 2.07. SEPARATE EXISTENCE. (a) At and after the BFOH EFFECTIVE
TIME, the separate existence of MFFC shall cease; provided, however, that
whenever a conveyance, assignment, transfer, deed or other instrument or act is
necessary to vest property or rights in the BFOH MERGER SURVIVOR, the officers
of BFOH and MFFC shall execute, acknowledge and deliver such instruments and do
such acts.
(b) At and after the BANK EFFECTIVE TIME, the separate
existence of MFSB shall cease; provided, however, that whenever a conveyance,
assignment, transfer, deed or other instrument or act is necessary to vest
property or rights in the BANK MERGER SURVIVOR, the officers of the BANK and
MFSB shall execute, acknowledge and deliver such instruments and do such acts.
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SECTION 2.08. PROPERTY. (a) At and after the BFOH EFFECTIVE TIME, all
of the assets and property of every kind and character, real, personal and
mixed, tangible and intangible, chooses in action, rights and credits owned by
BFOH and MFFC at the BFOH EFFECTIVE TIME, or which would inure to any of them,
shall immediately, by operation of law and without any conveyance or transfer
and without any further act or deed, be vested in and become the property of the
BFOH MERGER SURVIVOR, which shall have, hold and enjoy the same in its own right
as fully and to the same extent as the same were possessed, held and enjoyed by
BFOH and MFFC before the BFOH EFFECTIVE TIME. The BFOH MERGER SURVIVOR shall be
deemed to be and shall be a continuation of the entity and identity of BFOH. All
of the rights and obligations of BFOH or MFFC shall not revert or in any way be
impaired by reason of the BFOH MERGER. Any claim existing, or action or
proceeding pending, by or against either BFOH or MFFC, may be prosecuted to
judgment with right of appeal as if the BFOH MERGER had not taken place or the
BFOH MERGER SURVIVOR may be substituted in its place.
(b) At and after the BANK EFFECTIVE TIME, all of the assets
and property of every kind and character, real, personal and mixed, tangible and
intangible, chooses in action, rights and credits owned by BANK and MFSB at the
BANK EFFECTIVE TIME, or which would inure to any of them, shall immediately, by
operation of law and without any conveyance or transfer and without any further
act or deed, be vested in and become the property of the BANK MERGER SURVIVOR,
which shall have, hold and enjoy the same in its own right as fully and to the
same extent as the same were possessed, held and enjoyed by the BANK and MFSB
before the BANK EFFECTIVE TIME. The BANK MERGER SURVIVOR shall be deemed to be
and shall be a continuation of the entity and identity of the BANK. All of the
rights and obligations of the BANK or MFSB shall not revert or in any way be
impaired by reason of the BANK MERGER. Any claim existing, or action or
proceeding pending, by or against either the BANK or MFSB, may be prosecuted to
judgment with right of appeal as if the BANK MERGER had not taken place or the
BANK MERGER SURVIVOR may be substituted in its place.
SECTION 2.09. CREDITOR'S RIGHTS. (a) At and after the BFOH EFFECTIVE
TIME, all the rights of creditors of each of BFOH and MFFC shall be preserved
unimpaired, and all liens upon the property of BFOH and MFFC shall be preserved
unimpaired on only the property affected by any such lien immediately before the
BFOH EFFECTIVE TIME.
(b) At and after the BANK EFFECTIVE TIME, all the rights of
creditors of each of the BANK and MFSB shall be preserved unimpaired, and all
liens upon the property of the BANK and MFSB shall be preserved unimpaired on
only the property affected by any such lien immediately before the BANK
EFFECTIVE TIME.
SECTION 2.10. DEPOSITS. (a) At the BANK EFFECTIVE TIME and as a result
of the BANK MERGER, each MFSB savings deposit or other account then existing
shall, automatically and without further act of the BANK or MFSB or the holder
thereof, be cancelled and extinguished. In substitution and exchange for each
MFSB passbook savings deposit so cancelled and extinguished, the holder thereof
shall automatically receive from the BANK MERGER SURVIVOR a passbook savings
account with a beginning balance equal in dollar amount to the dollar amount of
the MFSB passbook savings deposit account so cancelled and
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extinguished and otherwise on the same terms as other passbook savings accounts
accepted by the BANK at the BANK EFFECTIVE TIME. In substitution for each MFSB
savings deposit, other than a passbook savings deposit, so cancelled and
extinguished, the holder thereof shall automatically receive from the BANK
MERGER SURVIVOR a savings account with a beginning balance equal in dollar
amount to the dollar amount of the MFSB savings deposit account so cancelled and
extinguished and otherwise having the same terms as the MFSB savings deposit so
cancelled and extinguished.
(b) The holder of each MFSB savings deposit or other account
cancelled and extinguished in accordance with Section 2.10(a) of this AGREEMENT
shall forthwith be entered on the records of the BANK MERGER SURVIVOR as the
holder of an appropriate savings deposit or other account in an amount
determined as provided in Section 2.10(a) and, until Section 2.10(c) of this
AGREEMENT shall have been complied with, each passbook, certificate of deposit
or other document issued by MFSB and evidencing a valid and binding MFSB savings
deposit or other document shall be deemed, for all purposes, to evidence a
savings deposit or other like account of the BANK MERGER SURVIVOR.
(c) Each person who, as a result of the BANK MERGER, holds a
passbook, certificate of deposit or other document issued by MFSB which
theretofore evidenced a MFSB savings deposit or other account shall surrender
each such passbook, certificate or other document to the BANK MERGER SURVIVOR.
Upon such surrender, the BANK MERGER SURVIVOR shall deliver in substitution
therefor an account book or other document evidencing the savings deposit or
other account received by such person in accordance with Section 2.10(c) of this
AGREEMENT.
ARTICLE THREE
REPRESENTATIONS AND WARRANTIES OF MFFC AND MFSB
MFFC and MFSB represent and warrant to BFOH that each of the following
is true and accurate in all material respects:
SECTION 3.01. ORGANIZATION AND STANDING. (a) MFFC is a corporation duly
organized, validly existing and in good standing under the laws of Ohio; is duly
registered with the OTS as a savings and loan holding company; and has the
corporate power and authority to own or hold under lease all of its properties
and assets and to conduct its business and operations as presently conducted.
Except as set forth in Section 3.01(a) of the schedule delivered by MFFC to BFOH
on January 13, 2000 (hereinafter referred to as the "DISCLOSURE SCHEDULE"), MFFC
is in compliance in all material respects with all applicable local, state or
federal laws and regulations, including, without limitation, the regulations of
the Securities and Exchange Commission (hereinafter referred to as the "SEC")
and the OTS.
(b) MFSB is a federal savings bank duly organized, validly
existing and in good standing under the laws of the United States; has the
corporate power and authority to own or hold under lease all of its properties
and assets, to incur all of its deposit liabilities and borrowings and to
conduct its business and operations as presently conducted; and is a member of
the Federal Home Loan Bank of Cincinnati (hereinafter referred to as the "FHLB
of
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Cincinnati"). The savings accounts and deposits of MFSB are insured up to
applicable limits by the FDIC. Except as set forth in Section 3.01(b) of the
DISCLOSURE SCHEDULE, MFSB is in compliance in all material respects with all
applicable local, state or federal laws and regulations, including, without
limitation, the regulations of the OTS and the Federal Deposit Insurance
Corporation (hereinafter referred to as the "FDIC").
SECTION 3.02. QUALIFICATION. Each of MFFC and MFSB is either duly
qualified to do business and in good standing in each jurisdiction in which such
qualification is required or the failure to so qualify would not have a material
adverse effect on the business of either of MFFC or MFSB.
SECTION 3.03. AUTHORITY. Subject to the approval of this AGREEMENT and
the transactions contemplated hereby, including the BFOH MERGER and the BANK
MERGER, by the appropriate regulatory authorities, by MFFC, as the sole
shareholder of MFSB, and by the requisite vote of the MFFC shareholders, (i)
each of MFFC and MFSB has all of the requisite corporate power and authority to
enter into this AGREEMENT and to perform all of its obligations hereunder; (ii)
the execution and delivery of this AGREEMENT and the consummation of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action by each of MFFC and MFSB; and (iii) this AGREEMENT is the valid
and binding agreement of each of MFFC and MFSB, enforceable against each of MFFC
and MFSB in accordance with its terms, (I) subject to applicable bankruptcy,
insolvency, reorganization and moratorium laws and other laws of general
applicability affecting the enforcement of creditors' rights generally and the
effect of rules of law governing specific performance, injunctive relief and
other equitable remedies on the enforceability of such documents and (II) except
to the extent such enforceability may be limited by laws relating to safety and
soundness of insured depository institutions as set forth in 12 U.S.C. ss.
1818(b) or by the appointment of a conservator by the FDIC. This AGREEMENT has
been duly executed and delivered by each of MFFC and MFSB.
SECTION 3.04. GOVERNING DOCUMENTS. MFFC and MFSB have delivered to BFOH
true and accurate copies of the Articles of Incorporation and Code of
Regulations of MFFC and the Charter and Bylaws of MFSB and have granted BFOH
access to all records of all meetings and other corporate actions by the
shareholders, Boards of Directors and Committees of the Boards of Directors of
MFFC and MSFT, other than records of meetings relating to the consideration of
transactions related to this AGREEMENT. The minute books of MFFC and MFSB
contain, in all material respects, complete and accurate records of all meetings
and other corporate actions of the MFFC and MFSB shareholders, Boards of
Directors and Committees of the Boards of Directors, other than records of
meetings relating to the consideration of transactions related to this
AGREEMENT.
SECTION 3.05. NO CONFLICTS. The execution and delivery of this
AGREEMENT and the consummation of the transactions contemplated hereby,
including the BFOH MERGER and the BANK MERGER, will not, (a) subject to the
approval of this AGREEMENT and the BFOH MERGER by MFFC, as the sole shareholder
of MFSB, and by the requisite vote of the MFFC shareholders, conflict with or
violate any provision of or result in the breach of any provision of the
Articles of Incorporation or Code of Regulations of MFFC or the Charter or
Bylaws of
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MFSB; (b) conflict with or violate any provision of or result in the breach or
the acceleration of or entitle any party to accelerate (whether upon or after
the giving of notice of lapse of time or both) any obligation under, or
otherwise materially affect the terms of, any mortgage, lien, lease, agreement,
license, instrument, order, arbitration award, judgment or decree to which
either MFFC or MFSB is a party or by which MFFC, MFSB or their property or
assets is bound; (c) require the consent of any party to any agreement or
commitment to which either MFFC or MFSB is a party or by which MFFC, MFSB or
their property or assets is bound, the failure to obtain which could,
individually or in the aggregate with all the other failures to obtain required
consents, have a material adverse effect on the business, operations or
financial condition of MFFC and MFSB, taken as a whole; (d) result in the
creation or imposition of any lien, charge, pledge, security interest or other
encumbrance upon any property or assets of either MFFC or MFSB or give rise to
any meritorious cause of action against either MFFC or MFSB; or, (e) subject to
the approval of this AGREEMENT by the appropriate regulatory authorities, by
MFFC, as the sole shareholder of MFSB, and by the requisite vote of the MFFC
shareholders, violate or conflict with any applicable law, ordinance, rule or
regulation, including, without limitation, the rules and regulations of the OTS.
SECTION 3.06. CONSENTS. No consent, approval, order or authorization
of, or registration, declaration or filing with, any governmental authority is
required by MFFC or MFSB in connection with the execution and delivery of this
AGREEMENT by MFFC or MFSB or the consummation by MFFC or MFSB of the
transactions contemplated hereby, including the BFOH MERGER and the BANK MERGER,
except for filings, authorizations, notices, consents or approvals required by
the SEC, the OTS, the Board of Governors of the Federal Reserve System
(hereinafter referred to as the "FRB"), the OCC and the Ohio Secretary of State.
SECTION 3.07. MFFC AND MFSB SHARES. (a)(i) The authorized capital of
MFFC consists of 9,000,000 common shares, each without par value, 2,099,995 of
which are issued and outstanding and 228,227 of which are reserved for issuance
upon exercise of options granted in accordance with the STOCK OPTION PLAN, and
1,000,000 preferred shares, each without par value, none of which is issued or
outstanding. All of the issued and outstanding common shares of MFFC are duly
authorized, validly issued, fully paid and nonassessable and were issued in full
compliance with all applicable laws. MFFC has no outstanding class of capital
stock other than such common shares.
(ii) Except for the options to purchase for $13.69
per share an aggregate of 228,227 common shares of MFFC granted in accordance
with the STOCK OPTION PLAN, there are no outstanding subscription rights,
options, conversion rights, warrants or other agreements, plans or commitments
of any nature whatsoever (either firm or conditional) obligating MFFC (I) to
issue, deliver or sell, cause to be issued, delivered or sold, or restricting
MFFC from selling any additional MFFC common shares or (II) to grant, extend or
enter into any such agreement, plan or commitment. There are no outstanding
stock appreciation, phantom stock or similar rights in respect of MFFC common
shares.
(iii) In accordance with the MFSB Recognition and
Retention Plan (hereinafter referred to as the "RRP"), an aggregate of 103,155
MFFC common shares were purchased by the RRP Trustee in open market transactions
in 1995, 72,720 of which have been
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awarded to RRP participants (hereinafter referred to as the "AWARDED RRP
SHARES") and 30,435 of which are not subject to outstanding awards and are owned
of record by the RRP Trustee (hereinafter referred to as the "UNAWARDED RRP
SHARES"). Of the AWARDED RRP SHARES, 58,785 have been vested and distributed to
RRP participants and 13,935 have not vested on the date hereof (hereinafter
referred to as the "UNVESTED RRP SHARES").
(iv) The MFFC Employee Stock Ownership Plan
(hereinafter referred to as the "ESOP") owns of record 187,339 common shares of
MFFC, 106,552 of which have been allocated to the accounts of ESOP participants
and 80,787 of which are unallocated. The outstanding principal balance of the
loan obtained by the ESOP from MFFC to purchase the MFFC common shares owned of
record by the ESOP (hereinafter referred to as the "ESOP LOAN") equaled
$1,031,550 on the date hereof.
(v) To the knowledge of MFFC, each certificate
evidencing MFFC common shares issued by MFFC in replacement of any certificate
which was theretofore issued by MFFC to evidence MFFC common shares and which
was claimed by the record holder thereof to have been lost, stolen or destroyed
was issued by MFFC only upon receipt of an affidavit of lost stock certificate
and indemnity agreement of such shareholder indemnifying MFFC against any claim
that may be made against MFFC on account of the alleged loss, theft or
destruction of any such certificate or the issuance of such replacement
certificate.
(b) The authorized capital of MFSB consists of 10,000,000
common shares, each without par value, 100 of which are issued and outstanding
and held of record by MFFC. All of the outstanding common shares of MFSB are
duly authorized, validly issued, fully paid and nonassessable; were issued in
full compliance with all applicable laws and regulations; and were not issued in
violation of the preemptive right of any depositor or shareholder of MFSB. MFSB
0has no outstanding class of capital stock other than such common shares. There
are no outstanding subscription rights, options, conversion rights, warrants or
other agreements or commitments of any nature whatsoever (either firm or
conditional) obligating MFSB (i) to issue, deliver or sell, cause to be issued,
delivered or sold, or restricting MFSB from selling any additional MFSB shares
or (ii) to grant, extend or enter into any such agreement or commitment.
SECTION 3.08. FINANCIAL STATEMENTS. (a) The consolidated statements of
financial condition as of September 30, 1999 and 1998, of MFFC and the related
consolidated statements of income, shareholders' equity and cash flows for each
of the three years then ended, examined and reported upon by Crowe, Chizek and
Company, certified public accountants, complete copies of which have previously
been delivered to BFOH (hereinafter referred to as the "AUDITED FINANCIALS"),
have been prepared in conformity with generally accepted accounting principles
applied on a consistent basis and fairly present the consolidated financial
position of MFFC at such dates and the consolidated results of its operations
and cash flows for such periods. The books and records of MFFC and MFSB have
been, and are being, maintained in accordance with generally accepted accounting
principles and with any other applicable legal and accounting requirements and
reflect only actual transactions.
(b) The unaudited balance sheet as of November 30, 1999, of
MFFC and the related unaudited income statement for the two months then ended,
complete copies of which have previously been delivered to BFOH (hereinafter
referred to as the "INTERIM
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FINANCIALS"), fairly present the financial position of MFFC at such date and the
results of its operations for such period and have been prepared in accordance
with generally accepted accounting principles as applicable to condensed
consolidated financial statements and as applied on a consistent basis with the
AUDITED FINANCIALS. All adjustments which are necessary for a fair statement of
the INTERIM FINANCIALS have been made.
(c) The Thrift Financial Reports of MFSB for the three-month
periods ended March 31, June 30 and September 30, 1999, together with the
schedules and supplements attached thereto, each as filed with the OTS and
copies of which were previously delivered to BFOH by MFFC (hereinafter referred
to as the "TFRs"), have been prepared in accordance with accounting practices
permitted by the OTS applied on a consistent basis and fairly present the
financial position of MFSB at such dates.
(d) Except as disclosed in the INTERIM FINANCIALS, the TFRs
and Section 3.08(d) of the DISCLOSURE SCHEDULE, as of November 30, 1999, MFFC
had no liabilities or obligations material to the financial condition of MFFC,
whether accrued, absolute, contingent or otherwise, and whether due or to become
due.
SECTION 3.09. CONDUCT OF BUSINESSES. Between September 30, 1999, and
the date of this AGREEMENT, each of MFFC and MFSB conducted its businesses only
in the ordinary and usual course, there were no material adverse changes in the
financial condition, assets, liabilities, obligations, properties or business of
MFFC or MFSB and, except as set forth in any of the AUDITED FINANCIALS, the
INTERIM FINANCIALS, the TFRs or Section 3.09 of the DISCLOSURE SCHEDULE, neither
MFFC nor MFSB:
(a) Authorized the creation or issuance of, issued, sold
or disposed of, or created any obligation to issue,
sell or dispose of, any stock, notes, bonds or other
securities or any obligation convertible into or
exchangeable for, any shares of its capital stock;
(b) Except for a per share dividend in the amount of $.15
paid on November 15, 1999, declared, set aside, paid
or made any dividend or other distributions on its
capital stock or directly or indirectly redeemed,
purchased or acquired any shares or entered into any
agreement in respect of the foregoing;
(c) Effected any stock split, recapitalization,
combination, exchange of shares, readjustment or
other reclassification;
(d) Amended the Articles of Incorporation or Code of
Regulations of MFFC or the Charter or Bylaws of MFSB;
(e) Purchased, sold, assigned or transferred any material
tangible asset or any material patent, trademark,
trade name, copyright, license, franchise, design or
other intangible asset or property;
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(f) Mortgaged, pledged or granted or suffered to exist
any lien or other encumbrance or charge on any assets
or properties, tangible or intangible, except for
liens for taxes not yet due and payable and such
other liens, encumbrances or charges which do not
materially adversely affect its financial position;
(g) Waived any rights of material value or cancelled any
material debts or claims;
(h) Incurred any material obligation or liability
(absolute or contingent), including, without
limitation, any tax liability or any liability for
borrowings from the FHLB of Cincinnati, or paid any
material liability or obligation (absolute or
contingent), other than liabilities and obligations
incurred in the ordinary course of business;
(i) Entered into or amended any employment contract with
any of its officers or increased the compensation
payable to any officer or director, except
compensation increases and employment contract
renewals made in the ordinary course;
(j) Incurred any damage, destruction or similar loss, not
covered by insurance, materially affecting its
businesses or properties;
(k) Acquired any stock or other equity interest in any
corporation, partnership, trust, joint venture or
other entity;
(l) Made any (i) material investment (except investments
made in the ordinary course of business) or (ii)
material capital expenditure or commitment for any
material addition to property, plant or equipment; or
(m) Agreed, whether in writing or otherwise, to take any
action described in this Section 3.09.
SECTION 3.10. PROPERTIES. (a) A description of all material fixed
assets owned by each of MFFC and MFSB has been delivered to BFOH (hereinafter
referred to as the "PERSONAL PROPERTY"). All PERSONAL PROPERTY has been
maintained in good working order, ordinary wear and tear excepted. Either MFFC
or MFSB owns and has good title to all of the PERSONAL PROPERTY, free and clear
of any mortgage, lien, pledge, charge, claim, conditional sales or other
agreement, lease, right or encumbrance, except (i) as set forth in Section
3.10(a) of the DISCLOSURE SCHEDULE, (ii) to the extent stated or reserved
against in the AUDITED FINANCIALS or the INTERIM FINANCIALS and (iii) such other
exceptions which are not material in character or amount and do not materially
detract from the value of or interfere with the use of the properties or assets
subject thereto or affected thereby.
(b) A description of each parcel of real property owned by
either MFFC or MFSB is set forth in Section 3.10(b) of the DISCLOSURE SCHEDULE
(hereinafter referred to individually as a "PARCEL" and collectively as the
"REAL PROPERTIES"). Either MFFC or
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MFSB is the owner of each PARCEL in fee simple and has good and marketable title
to each such PARCEL, free of any liens, claims, charges, encumbrances or
security interests of any kind, except (i) as set forth in Section 3.10(b) of
the DISCLOSURE SCHEDULE, (ii) liens for real estate taxes and assessments not
yet delinquent and (iii) utility, access and other easements, rights of way,
restrictions and exceptions, none of which impair the REAL PROPERTIES for the
use and business being conducted thereon.
(c) A description of all real property leased by either MFFC
or MFSB is set forth in Section 3.10(c) of the DISCLOSURE SCHEDULE (hereinafter
referred to as the "LEASED REAL PROPERTY"). Except as set forth in Section
3.10(c) of the DISCLOSURE SCHEDULE, the REAL PROPERTY LEASES create, in
accordance with their terms, valid, binding and assignable leasehold interests
of either MFFC or MFSB in all of the LEASED REAL PROPERTY, free and clear of all
liens, claims, charges, encumbrances or security interests of any kind.
(d) A description of all personal property leased by either
MFFC or MFSB is set forth in Section 3.10(d) of the DISCLOSURE SCHEDULE.
(e) The documentation (hereinafter referred to as "LOAN
DOCUMENTATION") governing or relating to the loan and credit-related assets
(hereinafter referred to as the "LOAN ASSETS") included within the loan
portfolio of MFSB is legally sufficient in all material respects for the
purposes intended thereby and creates enforceable rights in favor of MFSB in
accordance with the terms of such LOAN DOCUMENTATION, subject to applicable
bankruptcy, insolvency, reorganization and moratorium laws and other laws of
general applicability affecting the enforcement of creditors' rights generally,
and the effect of rules of law governing specific performance, injunctive relief
and other equitable remedies on the enforceability of such documents.
SECTION 3.11. ALLOWANCE FOR LOAN LOSSES. Except as set forth in Section
3.11 of the DISCLOSURE SCHEDULE, there is no loan which was made by either MFFC
or MFSB and which is reflected as an asset of either MFFC or MFSB on the AUDITED
FINANCIALS or the INTERIM FINANCIALS that (i) is sixty (60) days or more
delinquent or (ii) has been classified by examiners (regulatory or internal) as
"Substandard," "Doubtful" or "Loss." The allowance for loan losses as reflected
on the AUDITED FINANCIALS and the INTERIM FINANCIALS is, in the opinion of
MFFC's management, adequate in all material respects as of their respective
dates under the requirements of generally accepted accounting principles to
provide for reasonably anticipated losses on outstanding loans, net of
recoveries.
SECTION 3.12. INVESTMENTS. (a) Section 3.12(a) of the DISCLOSURE
SCHEDULE contains (i) a true, accurate and complete list of all investments,
other than investments in the LOAN ASSETS and the REAL PROPERTIES, owned by
either MFFC or MFSB (hereinafter referred to as the "INVESTMENTS") as of the
date hereof, the name of the registered holder thereof, the location of the
certificates therefor or other evidence thereof and any stock powers or other
authority for transfer granted with respect thereto. Except as set forth in
Section 3.12(a) of the DISCLOSURE SCHEDULE, the INVESTMENTS, other than any such
investments disposed of in the ordinary course of business prior to the date
hereof, are owned by either MFFC or MFSB, free and clear of all liens, pledges,
claims, security interests, encumbrances, charges or
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restrictions of any kind and may be freely disposed of by either MFFC or MFSB at
any time. Except as set forth in Section 3.12(a) of the DISCLOSURE SCHEDULE,
neither MFFC nor MFSB is a party to, nor has any interest in, (i) any repurchase
agreement, reverse repurchase agreement, collateralized mortgage obligation or
any other derivative security or (ii) any interest rate swaps, caps, floors,
option agreements or any other interest rate risk management agreements.
(b) Except as set forth in Section 3.12(b) of the DISCLOSURE
SCHEDULE, neither MFFC nor MFSB owns of record or beneficially the outstanding
shares of, or any equity interest in, any corporation or other business entity.
SECTION 3.13. REPORTS AND RECORDS. (a) Each of MFFC and MFSB has filed
all reports and maintained all records required to be filed or maintained by it
under various rules and regulations of the SEC, the OTS, the FDIC and other
regulatory agencies with jurisdiction over MFFC or MFSB. All such documents and
reports complied in all material respects with applicable requirements of law
and regulations in effect at the time of filing such documents and contained in
all material respects the information required to be stated therein.
(b) MFFC has delivered to BFOH copies of the following
documents, each of which has been filed with the SEC (hereinafter referred to as
the "MFFC SEC FILINGS"):
(i) The MFFC Annual Reports on Form 10-K for the
fiscal years ended September 30, 1999 and
1998;
(ii) The MFFC Annual Reports to Shareholders for
the fiscal years ended September 30, 1999
and 1998;
(iii) The MFFC Proxy Statements for use in
connection with the 1999 and 1998 Annual
Meetings of Shareholders; and
(iv) The MFFC Quarterly Reports on Form 10-Q for
the quarters ended December 31, 1998 and
March 31 and June 30, 1999.
The MFFC SEC FILINGS did not, as of the dates on which such reports were filed
with the SEC, contain any untrue statement of a material fact or omit any
material fact required to be stated therein or necessary to make the statements
contained therein, in light of the circumstances under which they were made, not
misleading.
SECTION 3.14. TAXES. (a) Except as set forth in Section 3.14(a) of the
DISCLOSURE SCHEDULE, each of MFFC and MFSB has duly and timely filed all
federal, state, county and local income, profits, franchise, excise, sales,
customs, property, use, occupation, withholding, social security and other tax
and information returns and reports required to have been filed by each of MFFC
and MFSB through the date hereof, and has paid or accrued all taxes and duties
(and all interest and penalties with respect thereto) due or claimed to be due.
Neither MFFC nor MFSB has any liability for any taxes or duties (or interest or
penalties with respect thereto) of any nature whatsoever and there is no basis
for any additional material claims or assessments, other than with respect to
liabilities for taxes and duties which are reflected in the INTERIM
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FINANCIALS or which may have accrued since September 30, 1999, in the ordinary
course of business.
(b) No deficiencies for any taxes, assessments or governmental
charges have been proposed, asserted or assessed in writing by any governmental
or taxing authority against MFFC or MFSB that have not been settled or would not
be covered by existing reserves. Except as set forth in Section 3.14(b) of the
DISCLOSURE SCHEDULE, neither MFFC nor MFSB (i) is a party to any agreement
providing for the allocation or sharing of taxes or (ii) is required to include
in income any adjustment pursuant to Section 481(a) of the CODE (hereinafter
defined) by reason of the voluntary change in accounting method, nor has any
taxing authority proposed in writing any such adjustment or change of accounting
method.
(c) Any amount that will become receivable (whether in cash or
property or the vesting of property) as a result of any of the transactions
contemplated by this AGREEMENT by any employee, officer or director of MFFC or
MFSB who is a "DISQUALIFIED INDIVIDUAL," as such term is defined in proposed
Treasury Regulation Section 1.280G-1, under any employment, severance or
termination agreement, other compensation arrangements or PLAN (hereinafter
defined) currently in effect will not be characterized as an "excess parachute
payment," as such term is defined in Section 1.280G-1 of the CODE.
SECTION 3.15. MATERIAL CONTRACTS. (a) Except as set forth in Section
3.15(a) of the DISCLOSURE SCHEDULE, neither MFFC nor MFSB is a party to or bound
by any written or oral (i) contract or commitment for capital expenditures in
excess of $50,000 for any one project or $100,000 in the aggregate; (ii)
contract or commitment made in the ordinary course of business for the purchase
of materials or supplies or for the performance of services involving payments
to or by either MFFC or MFSB of an amount exceeding $50,000 in the aggregate or
extending for more than six (6) months from the date hereof; (iii) contract or
option for the purchase of any real property; (iv) letter of credit or indemnity
calling for payment, upon the conditions stated therein, of more than $100,000;
(v) guarantee agreement; (vi) instrument granting any person authority to
transact business on behalf of either MFFC or MFSB; (vii) contracts or
commitments relating to outstanding loans and/or commitments to make loans
(including unfunded commitments and lines of credit) to any one person or entity
(together with "affiliates" of such person or entity) in excess of $250,000;
(viii) employment, management, consulting, deferred compensation, severance or
other similar contract with any director, officer or employee of either MFFC or
MFSB; (ix) note, debenture or loan agreement pursuant to which either MFFC or
MFSB has incurred indebtedness, other than deposit liabilities and advances from
the FHLB of Cincinnati; (x) loan servicing agreement; (xi) contract or
commitment relating to a real estate development project consisting of the
development of more than one single family dwelling; or (xii) commitment or
agreement to do any of the foregoing. Contracts set forth in Section 3.15 of the
DISCLOSURE SCHEDULE are hereinafter collectively referred to as the "CONTRACTS."
(b) Neither MFFC nor MFSB is in material default under any of
the CONTRACTS.
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SECTION 3.16. INSURANCE. All material properties and operations of each
of MFFC and MFSB are adequately insured for its benefit. The performance by the
officers and employees of each of MFFC and MFSB of their duties is bonded in
such amounts and against such risks as are usually insured against or bonded by
entities similarly situated, under valid and enforceable policies of insurance
or bonds issued by insurers or bonding companies of recognized responsibility,
financial or otherwise.
SECTION 3.17. ACTIONS AND SUITS. Except as set forth in Section 3.17 of
the DISCLOSURE SCHEDULE, there are no actions, suits or proceedings or
investigations pending or, to the knowledge of MFFC, threatened against or
affecting the business, operations or financial condition of either MFFC or MFSB
in any court or before any federal, state, municipal or other governmental
department, commission, board, bureau, agency or instrumentality, and neither
MFFC or MFSB has any knowledge of any basis for any such action, suit,
proceeding or investigation.
SECTION 3.18. PERMITS AND LICENSES. Each of MFFC and MFSB has all
material permits, licenses, orders and approvals of all federal, state or local
governmental or regulatory bodies required for MFSB to conduct its business as
presently conducted, and all such material permits, licenses, orders and
approvals are in full force and effect, without the threat of suspension or
cancellation. None of such permits, licenses, orders or approvals will be
adversely affected by the consummation of the transactions contemplated by this
AGREEMENT.
SECTION 3.19. EMPLOYEE BENEFIT PLANS; ERISA. (a) Section 3.19 of the
DISCLOSURE SCHEDULE contains a true and complete list of all qualified pension
or profit-sharing plans, deferred compensation, consulting, bonus, group
insurance plans or agreements and all other incentive, welfare or employee
benefit plans or agreements, including, but not limited to, all "employee
benefit plans," as defined in Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended (hereinafter referred to as "ERISA"), which is
or was at any time during the last five years maintained, administered or
contributed to by MFFC or MFSB or any affiliate (as defined below) and covers
any employee or former employee of MFFC or MFSB or any affiliate or under which
MFFC or MFSB or any affiliate has any liability (hereinafter collectively
referred to as the "PLANS"). For purposes of this Section 3.19, "affiliate" of
any person or entity means any other person or entity which, together with such
person or entity, would be treated as a single employer under Section 414 of the
CODE or is an "affiliate," whether or not incorporated, as defined in Section
407(d)(7) of ERISA, of such person or entity. With respect to such PLANS, true
and complete copies of all (i) PLAN documents and amendments thereto, (ii) trust
agreements and amendments thereto, (iii) all written interpretations and
summaries, (iv) the three most recent annual reports on IRS Form 5500, (v) the
most recent Internal Revenue Service determination letters (and any pending
request for such) for each PLAN which is intended to be qualified under Section
401(a) of the CODE have been delivered to BFOH.
(b) Each PLAN which constitutes an "employee pension plan," as
defined in Section 3(2) of ERISA, is and has been administered in material
compliance with its governing documents and the applicable provisions of ERISA
and any such employee pension plan which is intended to be qualified under the
provisions of Section 401(a) of the Internal Revenue Code of
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1986, as amended (hereinafter referred to as the "CODE"), is and has been
administered in material compliance with the applicable provisions of the CODE.
(c) Each PLAN which constitutes an "employee welfare benefit
plan," as defined in Section 3(1) of ERISA, is and has been administered in
material compliance with its governing documents and the applicable provisions
of ERISA and each PLAN which constitutes a "group health plan," as defined in
Section 5000(b)(1) of the CODE, is and has been administered in material
compliance with the continuation of coverage provisions contained in Section
4980B of the CODE.
(d) Each PLAN which is not an "employee benefit plan," as
defined in Section 3(3) of ERISA, is and has been administered in material
compliance with its governing documents and with any and all state or federal
laws applicable to such PLAN. Nothing done or omitted to be done and no
transaction or holding of any asset under or in connection with any PLAN has or
will make MFFC, MFSB or any affiliate subject to any liability under Title I of
ERISA or liable for any tax pursuant to Sections 4971-4980E of the CODE. There
is no pending or threatened litigation, arbitration, disputed claim,
adjudication, audit, examination or other proceeding with respect to any PLAN or
any fiduciary or administrator thereof in their capacities as such (other than
the submission of participant claims for benefits in the ordinary course of
operation of such PLANS).
(e) The market value of assets under each "employee pension
plan" (as defined above) which is subject to the provisions of Title IV of
ERISA, equals or exceeds the present value of all vested and nonvested
liabilities thereunder determined in accordance with Pension Benefit Guaranty
Corporation (hereafter referred to as the "PBGC") methods, factors and
assumptions applicable to an employee pension plan terminating on the date for
determination. No "accumulated funding deficiency," as defined in Section 412 of
the CODE, has been incurred with respect to any PLAN, whether or not waived.
Full payment has been made of all amounts which MFFC or MFSB or any affiliate is
required to have paid as contributions to or benefits under any PLAN as of the
end of the most recent plan year thereof and there are no unfunded obligations
under any PLAN. No condition exists and no event has occurred that could
constitute grounds for termination of any PLAN, and neither MFFC, MFSB nor any
affiliate has incurred any material liability under Title IV of ERISA arising in
connection with the termination of any PLAN covered or previously covered by
Title IV of ERISA.
(f) MFFC does not maintain any PLAN which provides
post-retirement medical, dental or life insurance benefits to any former
employee of either MFFC or MFSB nor is MFFC obligated to provide any such
benefit to any current employee upon his or her retirement, except for the
continuation coverage required under Section 4980B of the CODE.
(g) Neither MFFC nor MFSB participates in, or has ever been
obligated to contribute to, any multiemployer plan as such term is defined in
Section 3(37) of ERISA.
(h) Neither MFFC, MFSB nor any PLAN maintained by either MFFC
or MFSB, nor any fiduciary of any such PLAN, has incurred any material liability
to the PBGC, the United States Department of Labor or to the Internal Revenue
Service (hereinafter referred to as the "IRS") with respect to a PLAN.
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(i) No prohibited transaction (which shall mean any
transaction prohibited by Section 406 of ERISA and not exempt under Section 408
of ERISA) has occurred with respect to any "employee benefit plan" (as defined
above) maintained by either MFFC or MFSB (i) which would result in the
imposition, directly or indirectly, of an excise tax under Section 4975 of the
CODE or (ii) the correction of which would have a material adverse effect on the
financial condition, results of operations or business of MFFC. No "reportable
event," within the meaning of Section 4043 of ERISA, and no event described in
Section 4041, 4042, 4062 or 4063 of ERISA has occurred in connection with any
PLAN.
(j) Each employee pension plan (as defined above) which is
intended to be an employee stock ownership plan, as defined in Section
4975(e)(7) of the CODE, is and has been administered in substantial compliance
with the applicable provisions of Sections 4975 and 409 of the CODE and the
regulations promulgated by the Internal Revenue Service (hereinafter referred to
as the "IRS") thereunder and, any outstanding loan to which any such employee
stock ownership plan is a party constitutes an "exempt loan," as described in
Section 54.4975-7 of the regulations promulgated by the IRS.
(k) There has been no amendment to, written interpretation or
announcement (whether or not written) relating to, or change in employee
participation or coverage under, any PLAN, which would increase the expense of
maintaining such PLAN above the level of the expense incurred in respect thereof
for the plan year ended immediately prior to the date hereof.
SECTION 3.20. ENVIRONMENTAL PROTECTION. (a) Except as set forth in
Section 3.20 of the DISCLOSURE SCHEDULE, (i) to the knowledge of MFFC, each of
MFFC, MFSB and the MFFC PROPERTY (hereinafter defined) is, and has been at all
times, in material compliance with all applicable ENVIRONMENTAL LAWS
(hereinafter defined); (ii) no investigations, inquiries, orders, hearings,
actions or other proceedings by or before any court or governmental agency have
been issued, are pending or, to the knowledge of MFFC or MFSB, threatened
against either MFFC or MFSB or in connection with the MFFC PROPERTY; (iii) no
claims have been made or, to the knowledge of MFFC or MFSB, threatened at any
time against either MFFC or MFSB or in connection with the MFFC PROPERTY
relating to actual or alleged violation of any ENVIRONMENTAL LAW or relating to
damage, contribution, cost recovery, compensation, loss or injury resulting from
any HAZARDOUS SUBSTANCE (hereinafter defined) and, to the knowledge of MFFC, no
past or present actions, activities, conditions, events or incidents, including,
without limitation, the release, emission, discharge or disposal of, or exposure
to, any HAZARDOUS SUBSTANCE have occurred that could reasonably form the basis
of any such claims against either MFFC or MFSB or in connection with the MFFC
PROPERTY; (iv) to the knowledge of MFFC, no HAZARDOUS SUBSTANCES have been
integrated into any MFFC PROPERTY or any component thereof in violation of
ENVIRONMENTAL LAWS, or which will in the future require remediation during
renovation or demolition, or in such quantities and manner as may or do pose a
threat to human health; (v) to the knowledge of MFFC, no portion of any MFFC
PROPERTY is located within 2000 feet of (I) a release of HAZARDOUS SUBSTANCES
which has been reported or is required to be reported under any ENVIRONMENTAL
LAW or (II) the location of any site used, in the past or presently, for the
disposal of any HAZARDOUS SUBSTANCES; (vi) the MFFC PROPERTY has not been used
by MFFC or MFSB for the storage, disposal or treatment of HAZARDOUS
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SUBSTANCES, except as allowed by applicable law, has not been contaminated by
HAZARDOUS SUBSTANCES, nor has been used for the storage or use of any
underground or aboveground storage tanks; and (vii) material permits,
registrations and other authorizations necessary for either MFFC or MFSB or the
MFFC PROPERTY to operate in material compliance with all ENVIRONMENTAL LAWS are
currently in force and are identified in Section 3.20 of the DISCLOSURE
SCHEDULE.
(b) As used in Sections 3.20 and 4.16 of this AGREEMENT:
(i) "MFFC PROPERTY" means all real and personal
property now or previously owned, leased,
occupied or managed by either MFFC or MFSB
or any person or entity whose liability for
any matter has or may have been related or
assumed by MFFC either contractually or are
by operation of law.
(ii) "ENVIRONMENTAL LAWS" means all federal,
state, local and other laws, regulations,
rules, standards, ordinances, orders,
decrees, and judgments relating to
pollution, the environment, occupational
health and safety, or the protection of
human health, all as may be from time to
time amended.
(iii) "HAZARDOUS SUBSTANCES" means any and all
substances or materials which are classified
or considered to be hazardous or toxic to
human health or the environment under any
applicable ENVIRONMENTAL LAWS and shall
include, without limitation, any "hazardous
substances" as defined in Section 101(14) of
CERCLA (42 USC Section 9601(14)) or
regulations promulgated thereunder, any
"toxic and hazardous substances" as defined
in 29 CFR Part 1910, petroleum and its
byproducts, asbestos, polychlorinated
biphenyls, nuclear fuel or materials, lead
and lead-containing substances, and
urea-formaldehyde.
SECTION 3.21. EMPLOYMENT MATTERS. Each of MFFC and MFSB is in material
compliance with all federal, state or other applicable laws respecting
employment and employment practices, terms and conditions of employment and
wages and hours. No unfair labor practice complaint against either MFFC or MFSB
is pending before any governmental agency or court and there is no labor strike,
dispute, slowdown or stoppage actually pending or, to the knowledge of either
MFFC or MFSB, threatened against or involving either MFFC or MFSB. No
representation question exists in respect of the employees of either MFFC or
MFSB and no labor grievance which might have a material adverse effect upon
either MFFC or MFSB or the conduct of its businesses is pending or, to the
knowledge of MFFC, threatened. No arbitration proceeding arising out of or under
any collective bargaining agreement is pending and no claim therefore has been
asserted against either MFFC or MFSB. No collective bargaining agreement is
currently being negotiated by either MFFC or MFSB.
SECTION 3.22. BROKERS. All negotiations relating to this AGREEMENT and
the transactions contemplated hereby have been carried on without the
intervention of any person,
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other than McDonald Investments Inc. (hereinafter referred to as "MCDONALD"),
acting on behalf of MFFC or MFSB in such manner as to give rise to any valid
claim against MFFC or MFSB for any broker's or finder's fee or similar
compensation.
SECTION 3.23. YEAR 2000. (a) All devices, systems, machinery,
information technology, computer software and hardware, and other date sensitive
technology owned or leased by either MFFC or MFSB (hereinafter referred to as
the "MFSB SYSTEMS") necessary for either MFFC or MFSB to carry on its business
as presently conducted and as contemplated to be conducted in the future either
(i) are Year 2000 Compliant (hereinafter defined) or (ii) will be Year 2000
Compliant within a period of time calculated to result in no material disruption
of any of the business operations of either MFFC or MFSB. For purposes of this
Section 3.25, "Year 2000 Compliant" means that the MFSB SYSTEMS are designed to
be used prior to, during and after the Gregorian calendar year 2000 A.D. and
will operate during each such time period without error relating to date data,
specifically including any error relating to, or the product of, date data which
represents or references different centuries or more than one century.
(b) Each of MFFC and MFSB has (i) undertaken a detailed
inventory, review and assessment of all areas within its business and operations
that could be adversely affected by the failure of either MFFC or MFSB to be
Year 2000 Compliant on a timely basis; (ii) developed a detailed plan and time
line for becoming Year 2000 Compliant on a timely basis; and (iii) to date,
implemented that plan in accordance with that timetable in all material
respects.
(c) Each of MFFC and MFSB has made inquiry of each of its key
suppliers, vendors and customers and has obtained confirmations from all such
persons as to whether such persons have initiated programs to become Year 2000
Compliant and on the basis of such confirmations, MFFC reasonably believes that
all such persons will be or try to become so compliant or make other suitable
arrangements so as not to likely cause a material disruption of business.
SECTION 3.24. STOCK OWNERSHIP. Except as set forth in ss. 3.24 of the
DISCLOSURE SCHEDULE, neither MFFC nor any of its "affiliates" or "associates,"
as the terms "affiliates" and "associates" are defined in ss. 1704.01(C)(1) of
the ORC, are "beneficial owners," as the term "beneficial owners" is defined in
ss. 1704.01(C)(4) of the ORC, of any of the outstanding common shares of BFOH.
SECTION 3.25. REGULATORY MATTERS. Except as set forth in Section 3.25
of the DISCLOSURE SCHEDULE, neither MFFC nor MFSB is subject or is party to, or
has received any notice or advice that it may become subject or party to, any
investigation with respect to, any cease-and-desist order, agreement, consent
agreement, memorandum of understanding or other regulatory enforcement action,
proceeding or order with or by, or is a party to any commitment letter or
similar undertaking to, or is subject to any directive by, or has been a
recipient of any supervisory letter from, or has adopted any board resolutions
at the request of, any regulatory agency that currently restricts the conduct of
its business or that currently affects its capital adequacy, credit policies,
management or business (hereinafter referred to as a "REGULATORY AGREEMENT"),
nor has MFFC or MFSB been advised by any regulatory agency that it is
considering issuing or requesting any such REGULATORY AGREEMENT. Except as set
forth
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in Section 3.25 of the DISCLOSURE SCHEDULE, there is no unresolved violation,
criticism or exception by any REGULATORY AGENCY with respect to any report or
statement relating to any examinations of MFFC or MFSB.
SECTION 3.26. NON-BANKING ACTIVITIES. MFFC is not engaged in any
activity, either directly or indirectly through one or more of its subsidiaries
or other equity investments, which is not permitted by a savings and loan
holding company or by a subsidiary or other enterprise through which such
activity is conducted. MFSB is not engaged in any activity, either directly or
indirectly through one or more of its subsidiaries or other equity investments,
which is not permitted by a federal savings bank.
SECTION 3.27. FIDUCIARY RESPONSIBILITY. During the applicable statute
of limitations period, (a) MFFC and MFSB have properly administered all accounts
(if any) for which it acts as a fiduciary or agent, 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
the terms of the governing documents and applicable state and federal law and
regulation and common law, and (b) neither MFFC, MFSB, nor any director, officer
or employee of MFFC or MFSB acting on behalf of MFFC or MFSB, has committed any
breach of trust with respect to any such fiduciary or agency account, and the
accountings for each such fiduciary or agency account are true and correct and
accurately reflect the assets of such fiduciary or agency account. To the
knowledge of MFFC, there is no investigation or inquiry by any regulatory agency
pending or threatened against or affecting MFFC or MFSB relating to the
compliance by MFFC or MFSB with sound fiduciary principles and applicable
regulations.
SECTION 3.28. EMPLOYMENT AGREEMENTS. Section 3.15 of the DISCLOSURE
SCHEDULE lists each agreement, arrangement, commitment or contract (whether
written or oral) for the employment, retention or engagement, or with respect to
the severance, of any present or former officer, director, employee, agent,
consultant or other person or entity to which MFFC or MFSB is a party to or
bound by and which, by its terms, is not terminable by MFFC or MFSB on thirty
(30) days written notice or less without the payment of any amount by reason of
such termination. Copies of each written agreement, arrangement, commitment or
contract listed in Section 3.15 of the DISCLOSURE SCHEDULE have been previously
delivered to BFOH.
SECTION 3.29. CERTAIN OPERATIONAL MATTERS. (a) Neither MFFC nor MFSB is
a party to any agreement or subject to any arrangement which would prevent,
limit or restrict it from the sale, lease or other disposition of its main
offices or any branch office.
(b) Except as set forth in Section 3.27 of the DISCLOSURE
SCHEDULE, the consummation of the BFOH MERGER or the BANK MERGER shall not
result in the termination or cancellation before its stated expiration of any
contract to which MFFC or MFSB is a party or cause them to incur any financial
penalty, liquidated damages, assessment or other costs solely by reason of such
mergers.
SECTION 3.30. STATEMENTS. None of the information supplied or to be
supplied by MFFC and MFSB for inclusion in this AGREEMENT or in any documents
filed with any regulatory agency in connection with the transactions
contemplated by this AGREEMENT shall, at the respective times such documents are
filed, and at the time of the MFFC Shareholders' Meeting,
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contain any untrue statement of a material fact, or omit to state any material
fact necessary in order to make the statements made therein, in light of the
circumstances under which they are made, not misleading.
ARTICLE FOUR
REPRESENTATIONS AND WARRANTIES OF BFOH AND THE BANK
BFOH and the BANK represent and warrant to MFFC that each of the
following is true and accurate in all material respects:
SECTION 4.01. ORGANIZATION AND STANDING. (a) BFOH is a corporation duly
organized, validly existing and in good standing under the laws of Ohio; is duly
registered with the FRB as a bank holding company; and has the corporate power
and authority to conduct its business and operations as presently conducted.
BFOH is in compliance in all material respects with all applicable local, state
or federal laws and regulations, including, without limitation, the regulations
of the SEC, the FRB and the FDIC.
(b) The BANK is a national bank duly organized, validly
existing and in good standing under the laws of the United States and has the
corporate power and authority to own or hold under lease all of its properties
and assets and to conduct its business and operations as presently conducted.
The savings accounts and deposits of the BANK are insured up to applicable
limits by the FDIC. The BANK is in compliance in all material respects with all
applicable local, state or federal laws and regulations, including, without
limitation, the regulations of the OCC and the FDIC.
SECTION 4.02. QUALIFICATION. Each of BFOH and the BANK is either duly
qualified to do business and in good standing in each jurisdiction in which such
qualification is required or the failure to so qualify would not have a material
adverse effect on the business of BFOH or the BANK.
SECTION 4.03. AUTHORITY. Subject to the approval of this AGREEMENT and
the transactions contemplated hereby, including the BANK MERGER, by the
appropriate regulatory authorities, (a) each of BFOH and the BANK has all
requisite corporate power and authority to enter into this AGREEMENT and to
perform its obligations hereunder; (b) the execution and delivery of this
AGREEMENT and the consummation of the transactions contemplated hereby have been
duly authorized by all necessary corporate action by each of BFOH and the BANK;
and (c) this AGREEMENT is a valid and binding agreement of each of BFOH and the
BANK, enforceable against it in accordance with its terms, (i) subject to
applicable bankruptcy, insolvency, reorganization and moratorium laws and other
laws of general applicability affecting the enforcement of creditors' rights
generally, and the effect of rules of law governing specific performance,
injunctive relief and other equitable remedies on the enforceability of such
documents and (ii) except to the extent such enforceability may be limited by
laws relating to safety and soundness of insured depository institutions as set
forth in 12 U.S.C. ss.1818(b) or by the appointment of a conservator by the
FDIC. This AGREEMENT has been duly executed and delivered by each of BFOH and
the BANK.
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SECTION 4.04. GOVERNING DOCUMENTS. BFOH has delivered to MFFC true and
accurate copies of the Articles of Incorporation and Code of Regulations of BFOH
and the Articles of Association and the Bylaws of the BANK and has granted MFFC
access to all records of all meetings and other corporate actions occurring
before the BFOH EFFECTIVE TIME by the shareholders, Boards of Directors and
Committees of the Boards of Directors of BFOH and the BANK. The minute books of
BFOH and the BANK contain, in all material respects, complete and accurate
records of all meetings and other corporate actions of shareholders, Boards of
Directors and Committees of the Boards of Directors.
SECTION 4.05. NO CONFLICTS. The execution and delivery of this
AGREEMENT and, subject to the approval of the BFOH MERGER and the BANK MERGER by
the appropriate regulatory authorities, the consummation of the transactions
contemplated hereby will not (a) conflict with or violate any provision of or
result in the breach of any provision of the Articles of Incorporation or Code
of Regulations of BFOH or the Articles of Association or Bylaws of the BANK; (b)
conflict with or violate any provision of or result in the breach or the
acceleration of or entitle any party to accelerate (whether upon or after the
giving of notice of lapse of time or both) any obligation under, or otherwise
materially affect the terms of, any mortgage, lien, lease, agreement, license,
instrument, order, arbitration award, judgment or decree to which either BFOH or
the BANK is a party or by which either BFOH or the BANK or their property or
assets is bound; (c) require the consent of any party to any agreement or
commitment to which either BFOH or the BANK is a party or by which either BFOH
or the BANK or their property or assets is bound, the failure to obtain which
could, individually or in the aggregate with all the other failures to obtain
required consents, have a material adverse effect on the business, operations or
financial condition of BFOH and the BANK, taken as a whole; (d) result in the
creation or imposition of any lien, charge, pledge, security interest or other
encumbrance upon any property or assets of either BFOH or the BANK or give rise
to any meritorious cause of action against either BFOH or the BANK; or (e)
violate or conflict with any applicable law, ordinance, rule or regulation,
including, without limitation, the rules and regulations of the FRB, OCC, or the
FDIC.
SECTION 4.06. CONSENTS. Except as disclosed in writing to MFFC on the
date of this AGREEMENT (hereinafter to as the "BFOH LETTER"), no consent,
approval, order or authorization of, or registration, declaration or filing
with, any governmental authority is required in connection with the execution
and delivery of this AGREEMENT by either BFOH or the BANK or the consummation by
either BFOH or the BANK of the transactions contemplated hereby, except for
filings, authorizations, consents or approvals required by the SEC, FRB, the
OTS, the OCC and the Ohio Secretary of State. At or before the BFOH EFFECTIVE
TIME, BFOH shall obtain the consent of LaSalle National Bank to the consummation
of the transactions contemplated by this AGREEMENT.
SECTION 4.07. AUTHORIZED CAPITAL OF BFOH. As of the date hereof, the
authorized capital of BFOH consists of (a) 20,000,000 common shares, each
without par value, 7,595,668 of which are issued and outstanding and 297,467 of
which are reserved for issuance upon exercise of outstanding stock options
(hereinafter referred to as the "BFOH OPTIONS"). All of the outstanding common
shares of BFOH are duly authorized, validly issued, fully paid and nonassessable
and were issued in full compliance with all applicable laws. BFOH has no
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outstanding class of capital stock other than such common shares. Except for the
BFOH OPTIONS, shares to be issued pursuant to the BFOH Bonus Share Program and
as set forth in the BFOH LETTER, there are no outstanding subscription rights,
options, conversion rights, warrants or other agreements or commitments of any
nature whatsoever (either firm or conditional) obligating BFOH to issue, deliver
or sell, cause to be issued, delivered or sold, or restricting BFOH from selling
any additional BFOH shares, or obligating BFOH to grant, extend or enter into
any such agreement or commitment.
SECTION 4.08. FINANCIAL STATEMENTS. (a) The consolidated statements of
financial condition as of December 31, 1998 and 1997, of BFOH and the related
consolidated statements of income, shareholders' equity and cash flows for each
of the three years then ended, examined and reported upon by
PriceWaterhouseCoopers LLP, certified public accountants, complete copies of
which have previously been delivered to MFFC (hereinafter referred to as the
"BFOH AUDITED FINANCIALS"), have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis and fairly present
the financial position of BFOH at such dates and the results of its operations
and cash flows for such periods.
(b) The consolidated statement of financial condition as of
November 30, 1999, of BFOH and the related consolidated statements of income,
shareholders' equity and cash flows for the eleven months then ended, complete
copies of which have previously been delivered to MFFC (hereinafter referred to
as the "BFOH INTERIM FINANCIALS"), fairly present the financial position of BFOH
at such date and the results of its operations and cash flows for such period
and have been prepared in accordance with generally accepted accounting
principles as applicable to condensed consolidated financial statements and as
applied on a consistent basis with the BFOH AUDITED FINANCIALS. All adjustments
which are necessary for a fair statement of the BFOH INTERIM FINANCIALS have
been made.
(c) The Call Reports of the BANK for the three month periods
ended March 31, June 30 and September 30, 1999, together with the schedules and
supplements attached thereto, each as filed with the FDIC and copies of which
were previously delivered to MFFC by BFOH (hereinafter referred to as the "CALL
REPORTS"), have been prepared in accordance with accounting practices permitted
by the FDIC applied on a consistent basis and fairly present the financial
position of the BANK at such dates.
(d) Except as disclosed in the BFOH INTERIM FINANCIALS and the
CALL REPORTS, as of November 30, 1999, BFOH had no liabilities or obligations
material to the financial condition of the BANK and BFOH taken as a whole,
whether accrued, absolute, contingent or otherwise, and whether due or to become
due.
SECTION 4.09. CONDUCT OF BUSINESS. Except as disclosed in the BFOH
LETTER, since September 30, 1999, BFOH and the BANK have conducted their
business only in the ordinary and usual course and there have been no material
adverse changes in the financial condition, assets, liabilities, obligations,
properties or business of BFOH or the BANK.
SECTION 4.10. REPORTS AND RECORDS. (a) Each of BFOH and the BANK has
filed all reports and maintained all records required to be filed or maintained
by them under various rules and regulations of the SEC, FRB, FDIC and the OCC.
All such documents and reports complied
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in all material respects with applicable requirements of law and regulations in
effect at the time of the filing of such documents and contained in all material
respects the information required to be stated therein.
(b) BFOH has delivered to MFFC copies of the following
documents, each of which has been filed with the SEC (hereinafter referred to as
the "BFOH SEC FILINGS"):
(i) The BFOH Annual Reports on Form 10-K for the
fiscal years ended December 31, 1998 and
1997;
(ii) The BFOH Annual Reports to Shareholders for
the fiscal years ended December 31, 1998 and
1997;
(iii) The BFOH Proxy Statements for use in
connection with the 1998 and 1997 Annual
Meetings of Shareholders; and
(iv) The BFOH Quarterly Reports on Form 10-Q for
the quarters ended December 31, 1998 and
March 31, June 30 and September 30, 1999.
The BFOH SEC FILINGS did not, as of the dates on which such reports were filed
with the SEC, contain any untrue statement of a material fact or omit any
material fact required to be stated therein or necessary to make the statements
contained therein, in light of the circumstances under which they were made, not
misleading.
SECTION 4.11. ACTIONS AND SUITS. Except as set forth in the BFOH SEC
FILINGS or in the BFOH LETTER, there are no material actions, suits or
proceedings or investigations pending or, to the knowledge of BFOH, threatened
against or affecting the business, operations or financial condition of BFOH and
the BANK in any court or before any federal, state, municipal or other
governmental department, commission, board, bureau, agency or instrumentality,
and neither BFOH nor the BANK has any knowledge of any basis for any such
action, suit, proceeding or investigation.
SECTION 4.12. PERMITS AND LICENSES. Each of BFOH and the BANK has all
material permits, licenses, orders and approvals of all federal, state or local
governmental or regulatory bodies required for them to conduct their business as
presently conducted and all such material permits, licenses, orders and
approvals are in full force and effect, without the threat of suspension or
cancellation. None of such permits, licenses, orders or approvals will be
adversely affected by the consummation of the transactions contemplated by this
AGREEMENT.
SECTION 4.13. TAXES. Except as set forth in the BFOH SEC FILINGS, each
of BFOH and the BANK has duly and timely filed all federal, state, county and
local income, profits, franchise, excise, sales, customs, property, use,
occupation, withholding, social security and other tax and information returns
and reports required to have been filed by each of BFOH and the BANK through the
date hereof, and has paid or accrued all taxes and duties (and all interest and
penalties with respect thereto) due or claimed to be due. Neither BFOH nor the
BANK has any liability for any taxes or duties (or interest or penalties with
respect thereto) of any nature
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whatsoever and there is no basis for any additional material claims or
assessments, other than with respect to liabilities for taxes and duties which
are reflected in the BFOH INTERIM FINANCIALS or which may have accrued since
September 30, 1999, in the ordinary course of business.
SECTION 4.14. INSURANCE. All material properties and operations of each
of BFOH and the BANK are adequately insured for its benefit. The performance by
the officers and employees of each of BFOH and the BANK of their duties is
bonded in such amounts and against such risks as are usually insured against or
bonded by entities similarly situated, under valid and enforceable policies of
insurance or bonds issued by insurers or bonding companies of recognized
responsibility, financial or otherwise.
SECTION 4.15 YEAR 2000. (a) All devices, systems, machinery,
information technology, computer software and hardware, and other date sensitive
technology owned or leased by either BFOH or the BANK (hereinafter referred to
as the "BANK SYSTEMS") necessary for either BFOH or the BANK to carry on its
business as presently conducted and as contemplated to be conducted in the
future either (i) are Year 2000 Compliant or (ii) will be Year 2000 Compliant
within a period of time calculated to result in no material disruption of any of
the business operations of either BFOH or the BANK. For purposes of this Section
4.15, "Year 2000 Compliant" means that the BANK SYSTEMS are designed to be used
prior to, during and after the Gregorian calendar year 2000 A.D. and will
operate during each such time period without error relating to date data,
specifically including any error relating to, or the product of, date data which
represents or references different centuries or more than one century.
(b) Each of BFOH and the BANK has (i) undertaken a detailed
inventory, review and assessment of all areas within its business and operations
that could be adversely affected by the failure of either BFOH or the BANK to be
Year 2000 Compliant on a timely basis; (ii) developed a detailed plan and time
line for becoming Year 2000 Compliant on a timely basis; and (iii) to date,
implemented that plan in accordance with that timetable in all material
respects.
(c) Each of BFOH and the BANK has made inquiry of each of its
key suppliers, vendors and customers and has obtained confirmations from all
such persons as to whether such persons have initiated programs to become Year
2000 Compliant and on the basis of such confirmations, BFOH reasonably believes
that all such persons will be or try to become so compliant or make other
suitable arrangements so as not to likely cause a material disruption of
business.
SECTION 4.16 ENVIRONMENTAL PROTECTION. (a) Except as set forth in the
BFOH LETTER, (i) to the knowledge of BFOH, each of BFOH, the BANK and the BFOH
PROPERTY (hereinafter defined) is, and has been at all times, in material
compliance with all applicable ENVIRONMENTAL LAWS; (ii) no investigations,
inquiries, orders, hearings, actions or other proceedings by or before any court
or governmental agency have been issued, are pending or, to the knowledge of
BFOH or the BANK, threatened against either BFOH or the BANK or in connection
with the BFOH PROPERTY; (iii) no claims have been made or, to the knowledge of
BFOH or the BANK, threatened at any time against either BFOH or the BANK or in
connection
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with the BFOH PROPERTY relating to actual or alleged violation of any
ENVIRONMENTAL LAW or relating to damage, contribution, cost recovery,
compensation, loss or injury resulting from any HAZARDOUS SUBSTANCE and, to the
knowledge of BFOH, no past or present actions, activities, conditions, events or
incidents, including, without limitation, the release, emission, discharge or
disposal of, or exposure to, any HAZARDOUS SUBSTANCE have occurred that could
reasonably form the basis of any such claims against either BFOH or the BANK or
in connection with the BFOH PROPERTY; (iv) to the knowledge of BFOH, no
HAZARDOUS SUBSTANCES have been integrated into any BFOH PROPERTY or any
component thereof in violation of ENVIRONMENTAL LAWS, or which will in the
future require remediation during renovation or demolition, or in such
quantities and manner as may or do pose a threat to human health; (v) to the
knowledge of BFOH, no portion of any BFOH PROPERTY is located within 2000 feet
of (I) a release of HAZARDOUS SUBSTANCES which has been reported or is required
to be reported under any ENVIRONMENTAL LAW or (II) the location of any site
used, in the past or presently, for the disposal of any HAZARDOUS SUBSTANCES;
(vi) the BFOH PROPERTY has not been used for the storage, disposal or treatment
of HAZARDOUS SUBSTANCES, except as allowed by applicable law, has not been
contaminated by HAZARDOUS SUBSTANCES, nor has been used for the storage or use
of any underground or aboveground storage tanks; and (vii) material permits,
registrations and other authorizations necessary for either BFOH or the BANK or
the BFOH PROPERTY to operate in material compliance with all ENVIRONMENTAL LAWS
are currently in force.
(b) As used in this Section 4.16, "BFOH PROPERTY" means all
real and personal property now or previously owned, leased, occupied or managed
by either BFOH or the BANK or any person or entity whose liability for any
matter has or may have been related or assumed by BFOH either contractually or
by operation of law.
SECTION 4.17. STOCK OWNERSHIP. Except as set forth in the BFOH LETTER,
neither BFOH nor any of its "affiliates" or "associates," as the terms
"affiliates" and "associates" are defined in ss. 1704.01(C)(1) of the ORC, are
"beneficial owners," as the terms "beneficial owners" is defined in ss.
1704.01(C)(4) of the ORC, of any of the outstanding shares of MFFC.
SECTION 4.18. BROKERS. All negotiations relating to this AGREEMENT and
the transactions contemplated hereby have been carried on without the
intervention of any person, other than Sandler O'Neill, LLC, acting on behalf of
BFOH or the BANK in such manner as to give rise to any valid claim against BFOH
or the BANK for any broker's or finder's fee or similar compensation.
ARTICLE FIVE
COVENANTS
SECTION 5.01. CONDUCT OF BUSINESSES. (a) Except as set forth in Section
5.01(b) of this AGREEMENT and except to the extent permitted by BFOH, from the
date of this AGREEMENT until the BFOH EFFECTIVE TIME, MFFC and MFSB will conduct
their businesses only in the ordinary course, in accordance with past practices
and policies and in compliance with all applicable statutes, rules and
regulations. Without limiting the generality of the foregoing, MFFC and MFSB
shall use reasonable efforts to maintain and preserve intact their
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business organizations, employees and business relationships and to retain the
services of their officers and key employees and neither MFFC nor MFSB shall,
without the prior written consent of BFOH:
(i) Issue any MFFC common shares or other
capital stock or any options, warrants, or
other rights to subscribe for or purchase
MFFC common shares or any other capital
stock or any securities convertible into or
exchangeable for any capital stock of MFFC
or MFSB, except pursuant to options granted
under the STOCK OPTION PLAN and options
granted to BFOH;
(ii) Directly or indirectly redeem, purchase or
otherwise acquire any MFFC common shares or
any other capital stock of MFFC or MFSB or
effect a reclassification, recapitalization,
split-up, exchange of shares, readjustment
or other similar change in or to any capital
stock or otherwise reorganize or
recapitalize MFFC or MFSB;
(iii) Amend the Articles of Incorporation or Code
of Regulations of MFFC or the Charter or
Bylaws of MFSB;
(iv) Grant any increase, other than ordinary and
normal increases consistent with past
practices, in the compensation payable or to
become payable to officers or salaried
employees or, except as required by law or
as required by existing contractual
obligations, adopt or make any material
change in any bonus (permitting the
continued accrual of management bonuses at
current rates and payment of such bonuses in
accordance with past practices, the MFFC and
MFSB Boards of Director being permitted to
consider the impact of the transactions
contemplated by this AGREEMENT on the
possible adverse performance of MFFC and
MFSB), insurance, pension or other PLAN
(except as otherwise permitted by this
AGREEMENT), agreement, payment or
arrangement made to, for or with any of such
officers or employees;
(v) Borrow or agree to borrow any material
amount of funds except in the ordinary
course of business, or directly or
indirectly guarantee or agree to guarantee
any material obligations of others, except
in the ordinary course of business;
(vi) Make or commit to make any new loan or
letter of credit or any new or additional
discretionary advance under any existing
line of credit, except in the ordinary
course of business;
(vii) Purchase or otherwise acquire any investment
security for its own account, except in a
manner and pursuant to policies consistent
with past practice;
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(viii) Materially increase or decrease the rate of
interest paid on time deposits, or on
certificates of deposit, except in a manner
and pursuant to policies consistent with
past practices;
(ix) Enter into any agreement, contract or
commitment of a material nature out of the
ordinary course of business;
(x) Except in the ordinary course of business,
place on any of its material assets or
properties any mortgage, pledge, lien,
charge, or other encumbrance of a material
nature;
(xi) Except in the ordinary course of business,
cancel or accelerate any material
indebtedness owing to MFFC or MFSB or any
claims which MFFC or MFSB may possess or
waive any material rights with respect
thereto;
(xii) Sell, assign, transfer, convey, license,
subcontract, cancel, amend or alter in any
other material respect any loan servicing
rights of MFFC or MFSB, except for sales on
the secondary market in the ordinary course
of business and in accordance with past
practices;
(xiii) Except as set forth in Section 5.01(a) of
the DISCLOSURE SCHEDULE, sell or otherwise
dispose of any material real property or any
material amount of any tangible or
intangible personal property other than in
the ordinary course of business and other
than properties acquired in foreclosure or
otherwise in the ordinary collection of
indebtedness to MFFC or MFSB;
(xiv) With respect to the branch operations of
MFSB, take any action to close any existing
branch, open new branches, acquire by
purchase, merger or otherwise additional
branches, or otherwise affect the number,
location, and nature of the branch
operations, or to make any public
announcement regarding the continuation or
discontinuation of any branch operations;
(xv) Foreclose upon or otherwise take title to or
possession or control of any real property
without first obtaining a Phase I
environmental report thereon which indicates
that the property is free of pollutants,
contaminants or hazardous or toxic waste
materials; provided, however, that no report
shall be required with respect to any single
family property or any non-agricultural
residential property of one acre or less,
unless there is reason to believe that such
property might contain any such waste
materials or otherwise might be
contaminated; or
(xvi) Purchase any real or personal property or
make any other capital expenditure in excess
of $50,000.
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(b) Notwithstanding Section 5.01(a) or any other provision to
the contrary in this AGREEMENT, MFFC and MFSB may, without the prior written
consent of BFOH:
(i) At or before the BFOH EFFECTIVE TIME, pay
management bonuses which have been accrued
since September 30, 1999, in accordance with
past practices;
(ii) At or before the BFOH EFFECTIVE TIME, issue
MFFC common shares upon exercise of options
granted pursuant to the STOCK OPTION PLAN;
(iii) At or before the BFOH EFFECTIVE TIME, pay
per share dividends in the amount of $.15
during each of the quarters ended March 31,
June 30 and September 30, 2000; provided,
however, that MFFC shall not pay any
dividend in the quarter of the CLOSING if
such payment would result in the payment
during such quarter of a dividend to MFFC
shareholders by both MFFC and BFOH; and
(iv) Take any other action expressly contemplated
by this AGREEMENT.
SECTION 5.02. ACQUISITION PROPOSALS. MFFC and MFSB shall not, and shall
cause the officers, directors, employees and other agents of MFFC and MFSB not
to, directly or indirectly, take any action to solicit, initiate, engage or
negotiate any proposals or offers from any person or entity, other than BFOH, or
discuss or negotiate with any such person or entity, other than BFOH, any
acquisition or purchase of all or a material amount of the assets of, any equity
securities of, or any merger, consolidation or business combination with, MFFC
or MFSB (hereinafter collectively referred to as "ACQUISITION TRANSACTIONS");
provided, however, that nothing contained in this Section 5.02 shall prohibit
MFFC or MFSB from furnishing information to, or entering into discussions,
negotiations or an agreement with, any person or entity which makes an
unsolicited proposal of an ACQUISITION TRANSACTION if and to the extent that (a)
the Board of Directors of MFFC, after consultation with and based upon the
advice of counsel, determines in good faith that such action is required to
fulfill its fiduciary duties to the shareholders of MFFC under applicable law
and (b) before furnishing such information to, or entering into discussions or
negotiations with, such person or entity, MFFC provides immediate written notice
to BFOH of such action.
SECTION 5.03. ACCOUNTING POLICIES. Before the BFOH EFFECTIVE TIME and
at the request of BFOH, MFFC and MFSB shall promptly establish and take such
reserves and accruals to conform the loan, accrual and reserve policies of MFFC
and MFSB to the policies of BFOH and the BANK; shall promptly establish and take
such accruals, reserves and charges in order to implement such policies in
respect of excess facilities and equipment capacity, severance costs, litigation
matters, write-off or write-down of various assets and other appropriate
accounting adjustments; and shall promptly recognize for financial accounting
purposes such expenses of the BFOH MERGER and restructuring charges related to
or to be incurred in connection with the BFOH MERGER, to the extent permitted by
law and consistent with generally accepted
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accounting principles and the fiduciary duties of the officers and directors of
MFFC and the MFSB; provided, however, that neither MFFC nor MFFC shall be
obligated to make any such changes or adjustments unless they have received a
written certification from BFOH that all conditions set forth in Sections 7.01
and 7.02 of this AGREEMENT have been satisfied or waived and that no basis for
the termination of this AGREEMENT by BFOH or the BANK pursuant to Article Eight
of this AGREEMENT is then extant.
ARTICLE SIX
FURTHER AGREEMENTS
SECTION 6.01. APPLICATION FOR APPROVAL OF MERGER. As soon as
practicable after the date of this AGREEMENT, BFOH and MFFC will prepare and
cause to be filed such applications and other documents with the FRB, the FDIC,
the OCC, and the OTS and any other governmental agencies as are required to
secure the requisite approval of such agencies to the consummation of the
transactions provided for in this AGREEMENT. BFOH and MFFC shall use all
reasonable efforts to file all such applications within ninety (90) days of the
date of this AGREEMENT and to secure all such approvals. MFFC and MFSB agree
that they will, as promptly as practicable after request, provide BFOH with all
information and documents concerning MFFC and MFSB as shall be required in
connection with preparing any applications, registration statements and other
documents which are to be prepared and filed by BFOH and in connection with
regulatory approvals required to be obtained by BFOH hereunder. BFOH agrees that
it will, as promptly as practicable after request, provide MFFC and MFSB with
all information and documents concerning BFOH and its subsidiaries as shall be
required in connection with preparing such applications, registration statements
and other documents which are to be prepared and filed by MFFC or MFSB in
connection with approvals required to be obtained by MFFC hereunder.
SECTION 6.02. REGISTRATION STATEMENT. (a) BFOH shall, as soon as
reasonably practicable, prepare in accordance with the Securities Act of 1933,
as amended (hereinafter referred to as the "ACT"), and file with the SEC a
Registration Statement in respect of the BFOH common shares to be issued to the
holders of MFFC common shares in accordance with ARTICLE TWO of this AGREEMENT
(hereinafter referred to as the "REGISTRATION STATEMENT"), and shall use all
reasonable efforts to have the REGISTRATION STATEMENT, as amended, declared
effective by the SEC as promptly as practicable. BFOH and MFFC shall cooperate
in the preparation of the REGISTRATION STATEMENT, including the prospectus,
proxy statement, and other documents necessary to comply with all federal and
state securities laws related to the registration and issuance of the shares of
BFOH to be issued to the shareholders of MFFC in this transaction, and any other
laws applicable to the transactions provided for in this Agreement.
(b) The information included in the REGISTRATION STATEMENT in
respect of BFOH and the BANK will not, at the time the REGISTRATION STATEMENT
becomes effective, contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading.
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SECTION 6.03. AFFILIATES COMPLIANCE WITH THE SECURITIES ACT. (a) Within
30 days after the date of this AGREEMENT, MFFC shall identify to BFOH all
persons whom MFFC reasonably believes to be "affiliates," as defined in
paragraphs (c) and (d) of Rule 145 under the ACT (hereinafter referred to as the
"AFFILIATES"). Thereafter and until the BFOH EFFECTIVE TIME, MFFC shall identify
to BFOH each additional person whom it reasonably believes to have thereafter
become its AFFILIATE.
(b) MFFC shall use reasonable efforts to cause each person who
is identified as an AFFILIATE to deliver to BFOH before the BFOH EFFECTIVE DATE
a written agreement in the form of the written agreement attached hereto as
Exhibit D in which such AFFILIATE confirms that the BFOH common shares received
by such AFFILIATE in the MERGER shall not be transferable except in accordance
with Rule 145 under the ACT.
SECTION 6.04. SPECIAL MEETING OF SHAREHOLDERS. (a) MFFC shall use
reasonable efforts to duly call, give notice of, convene and hold a meeting of
its shareholders for the purpose of voting upon the AGREEMENT and the
transactions contemplated hereby, including the BFOH MERGER. MFFC shall use its
reasonable efforts to hold such meetings as soon as practicable following the
effective date of the REGISTRATION STATEMENT. The Board of Directors of MFFC, as
constituted on the date of this AGREEMENT, shall, except to the extent that the
Board of Directors of MFFC, after consultation with and based upon the written
advice of counsel, determines in good faith that such recommendation or efforts
would breach its fiduciary duties to the shareholders of MFFC under applicable
law, (i) unanimously recommend to MFFC shareholders in the MFFC proxy statement
which will form a part of the REGISTRATION STATEMENT (hereinafter referred to as
the "PROXY STATEMENT") the approval of this AGREEMENT and the transactions
contemplated hereby, including the BFOH MERGER, and the other matters to be
submitted to the shareholders in connection therewith, and (ii) use their
reasonable efforts to obtain the necessary approvals by the shareholders of this
AGREEMENT, any amendments hereto, and the transactions contemplated hereby,
including the BFOH MERGER.
(b) Immediately after the approval of this AGREEMENT by the
requisite vote of the MFFC shareholders, MFFC shall approve this AGREEMENT and
the transactions contemplated hereby, including the BANK MERGER, as the sole
shareholder of MFSB.
SECTION 6.05. ACCESS. Until the BFOH EFFECTIVE TIME, MFFC and MFSB
shall afford to BFOH, and BFOH and the BANK shall afford to MFFC, and to their
respective officers and representatives (including, without limitation, counsel,
financial advisers and independent accountants), reasonable access to their
properties, personnel, books, records and affairs. Each party shall furnish the
other party with such additional financial and operating data and other
information as to its businesses and properties as may be reasonably requested.
Such access shall include, but shall not be limited to, (i) permitting
verification, by audit or otherwise, of any representation or warranty made
hereunder; (ii) authorizing release of any information (including the work
papers of such independent auditors) and financial consultants; (iii) consistent
with applicable regulations or procedures, furnishing regular and special
examination reports since the date of this AGREEMENT to the BFOH EFFECTIVE TIME;
and (iv) delivering copies of all
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documents or reports or correspondence filed and any correspondence with any
federal regulatory or supervisory agency from the date of this AGREEMENT until
the BFOH EFFECTIVE TIME.
SECTION 6.06. CONFIDENTIALITY. MFFC, MFSB, BFOH and the BANK shall hold
confidential any information obtained hereunder which is not otherwise public
knowledge or ascertainable from public information and all non-public documents
(including copies thereof) obtained hereunder by either party from the other
party shall be returned to such party.
SECTION 6.07. PRESS RELEASES. BFOH and MFFC shall consult with each
other before issuing any press release or otherwise making any public statements
with respect to the BFOH MERGER or the BANK MERGER and shall not issue any such
press release or make any such public statement without obtaining the prior
consent of the other party, except as may be required by law or by obligations
pursuant to any listing agreement with any national securities association.
SECTION 6.08. COSTS, EXPENSES AND FEES. Whether or not the BFOH MERGER
is consummated, all costs and expenses incurred in connection with this
AGREEMENT, the PROXY STATEMENT, the REGISTRATION STATEMENT and the transactions
contemplated hereby shall be paid by the party incurring such costs and
expenses.
SECTION 6.09. REASONABLE EFFORTS. Subject to the terms and conditions
herein provided, each of the parties hereto agrees to use all reasonable efforts
to take, or cause to be taken, all action, and to do or cause to be done all
things necessary, proper or advisable under applicable laws and regulations to
consummate and make effective the transactions contemplated by this AGREEMENT.
SECTION 6.10. NOTIFICATION OF EVENTS. At all times from the date of
this AGREEMENT until the BFOH EFFECTIVE TIME, each party shall promptly notify
the other in writing of any adverse business conditions threatening its normal
business operations or of the occurrence of any event or the failure of any
event to occur which might result in a breach of or a failure to comply with any
representation, warranty, covenant, condition or agreement contained in this
AGREEMENT or of the commencement of any action, suit, proceeding, or
investigation against it.
SECTION 6.11. LIQUIDATION ACCOUNT. The BANK MERGER shall have no effect
upon the MFSB Liquidation Account which shall be assumed by the BANK at the BANK
EFFECTIVE TIME in accordance with 12 C.F.R. ss. 563b.3(j).
SECTION 6.12. ESOP TERMINATION. (a) MFFC shall use reasonable efforts
to terminate the ESOP and shall file an Application for Determination with the
IRS regarding tax qualification upon termination. All amounts accrued on the
financial statements of MFFC as ESOP expense through the end of the month
immediately before the month of the CLOSING shall be contributed by MFSB to the
ESOP Trustee and shall be paid by the ESOP Trustee to MFFC to reduce the
outstanding balance of the ESOP LOAN, after which an appropriate number of MFFC
common shares shall be allocated as promptly as possible by the ESOP Trustee to
the accounts of ESOP participants (as defined in the ESOP) in accordance with
the allocation provisions of the ESOP contained in Sections 3.01 and 3.02 and
applicable law; provided,
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however, that any such contribution shall be deductible by MFFC and MFSB under
Section 404 of the CODE and the allocations of such contribution shall otherwise
be in compliance with Section 415 of the CODE. All common shares of MFFC held by
the Trustee of the ESOP at the BFOH EFFECTIVE TIME shall be exchanged by the
Trustee for the BFOH MERGER CONSIDERATION. The Trustee for the ESOP shall
dispose of shares held in the suspense account of the ESOP for the purpose of
retiring the ESOP LOAN. Any shares and other assets remaining in the suspense
account following repayment of the ESOP LOAN in full shall be allocated as
promptly as possible by the ESOP Trustee to participants (as defined in the
ESOP) in accordance with the allocation provisions of the ESOP contained in
Sections 3.01 and 3.02 and applicable law. It is the intent of the parties that
the ESOP be terminated and distributions made concurrently with the BFOH
EFFECTIVE TIME to the extent possible.
(b) In the event that the IRS determines that the allocation
of assets remaining in the suspense account following repayment of the ESOP LOAN
in full is subject to the limits on annual additions pursuant to Section 415 of
the CODE, then BFOH will make all reasonable efforts, to the extent permissible
under applicable provisions of the CODE and related Treasury Regulations, to
continue the ESOP trust through the last day of the ESOP plan year following the
ESOP plan year during which the BFOH EFFECTIVE TIME occurs, solely for the
benefit of those individuals who are participants in the ESOP immediately before
the BFOH EFFECTIVE TIME, and to allocate such remaining assets to ESOP
participants in accordance with the terms of the ESOP to the full extent
permissible under Section 415 of the CODE between the BFOH EFFECTIVE TIME and
the last day of the ESOP plan year following the ESOP plan year during which the
BFOH EFFECTIVE TIME occurs. In the event that all assets held by the ESOP trust
are allocated prior to the last day of the ESOP plan year during which the BFOH
EFFECTIVE TIME occurs, the ESOP trust shall be immediately terminated and
participants' ESOP accounts will be distributed as soon as practicable
thereafter.
SECTION 6.13. 401(K) PLAN TERMINATION. MFFC and MFSB shall use
reasonable efforts to terminate MFFC's 401(k) Plan before the BFOH EFFECTIVE
TIME and to file an Application for Determination with the IRS regarding tax
qualification upon termination.
SECTION 6.14. WITHDRAWAL FROM RETIREMENT FUND. MFFC and MFSB shall use
reasonable efforts to withdraw from the Financial Institutions Retirement Fund
(hereinafter referred to as the "RETIREMENT FUND"). Such withdrawal shall occur
in accordance with the applicable provisions of Article XII of the Regulations
governing the Comprehensive Retirement Program (hereinafter referred to as the
"REGULATIONS"), pursuant to the provisions of Article XII, Section 1, Paragraph
(6) of the REGULATIONS, applicable to a withdrawal without the establishment of
a "successor plan." MFFC and MFSB shall file all forms and documents necessary
to carry out such withdrawal from the RETIREMENT FUND prior to the BFOH
EFFECTIVE TIME, including, but not limited to, any filings required to be made
with the sponsor of the RETIREMENT FUND and with the IRS.
SECTION 6.15. RRP. MFFC shall not award any of the UNAWARDED RRP SHARES
to any of the RRP participants and shall cause the RRP Trustee to transfer all
right, title and interest in and to the UNAWARDED RRP SHARES to MFFC immediately
before the BFOH EFFECTIVE TIME. At the BFOH EFFECTIVE TIME, all of the UNVESTED
RRP SHARES
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shall vest and shall be exchanged for the BFOH MERGER CONSIDERATION, after which
BFOH shall cause the RRP Trustee to distribute to RRP participants (a) the BFOH
MERGER CONSIDERATION for which the UNVESTED RRP SHARES have been exchanged, (b)
all dividends previously paid by MFFC on the UNVESTED RRP SHARES, together with
interest earned thereon, and (c) fifty percent (50%) of all dividends previously
paid by MFFC on the UNAWARDED RRP SHARES, together with interest earned thereon.
SECTION 6.16. DEFERRED COMPENSATION AGREEMENTS. BFOH shall honor and
assume all of the obligations of MFSB under each of the Deferred Fee Agreements
by and between MFSB and David R. Hayes, MFSB and Christopher S. Long, MFSB and
Kenneth J. Faze, MFSB and Robert E. Hine, MFSB and E. Lynn App and MFSB and
Glenn E. Aidt, as each such agreement was amended on January 12, 2000.
SECTION 6.17. EMPLOYMENT AGREEMENTS. BFOH shall honor and assume all of
the obligations of MFFC and MFSB under the Employment Agreements by and among
MFFC, MFSB and Glenn E. Aidt; MFFC, MFSB and Thomas P. Eyer; MFFC, MFSB and
Debbie A. Jones; MFFC, MFSB and Dennis J. Piper; and MFFC, MFSB and John E.
Frigge. MFFC shall pay to each such employee on or before the BFOH EFFECTIVE
TIME the amount in cash required by Section 4(a)(ii)(I) of each such agreement.
SECTION 6.18. EMPLOYEE BENEFIT PLANS. (a) All employees of MFFC and
MFSB immediately prior to the BFOH EFFECTIVE TIME who are employed by BFOH or
the BANK (hereinafter referred to collectively as the "EMPLOYERS") immediately
following the BFOH EFFECTIVE TIME (hereinafter referred to as the "TRANSFERRED
EMPLOYEES") will be covered by the EMPLOYERS' employee benefit plans
(hereinafter referred to as the "EMPLOYEE BENEFIT PLANS") on substantially the
same basis as any employee of the EMPLOYERS in a comparable position.
Notwithstanding the foregoing, BFOH and the BANK may determine to continue any
of the MFFC or MFSB benefit plans for TRANSFERRED EMPLOYEES in lieu of offering
participation in the EMPLOYEE BENEFIT PLANS providing similar benefits (e.g.,
medical and hospitalization benefits), to terminate any of MFFC's or MFSB's
benefit plans, or to merge any such benefit plans with the EMPLOYEE BENEFIT
PLANS, provided the result is the provision of benefits to TRANSFERRED EMPLOYEES
that are substantially similar to the benefits provided to the EMPLOYERS'
employees generally. Service to MFFC or MFSB by a TRANSFERRED EMPLOYEE prior to
the BFOH EFFECTIVE TIME shall be recognized as service to the EMPLOYERS for
purposes of eligibility to participate under the EMPLOYERS' sick leave policies,
paid vacation policies and any EMPLOYEE BENEFIT PLAN to the extent permissible
under governing law. BFOH and the BANK agree that any pre-existing condition,
limitation or exclusion in its EMPLOYEE BENEFIT PLANS shall not apply to
TRANSFERRED EMPLOYEES or their covered dependents who are covered under a
similar plan maintained by MFFC or MFSB on the BFOH EFFECTIVE TIME and who then
change coverage to EMPLOYEE BENEFIT PLANS at the time such TRANSFERRED EMPLOYEES
are first given the option to enroll. Nothing contained in this Section 6.18
shall prohibit the EMPLOYERS from modifying or terminating any of the EMPLOYEE
BENEFIT PLANS after the BFOH EFFECTIVE TIME, nor shall anything contained in
this Section 6.18 require the EMPLOYERS to continue the employment of any
employee of MFFC or MFSB after the BFOH EFFECTIVE TIME.
37
<PAGE> 38
(b) Notwithstanding the terms and conditions of any note or
loan agreement, neither BFOH nor the BANK shall increase or otherwise change
after the BFOH EFFECTIVE DATE the interest rate on any loan made to any of the
MFSB employees identified in Section 6.18(b) of the DISCLOSURE SCHEDULE above
the interest rate on any such loan on the date of this AGREEMENT.
SECTION 6.19. INDEMNIFICATION AND INSURANCE. (a) For a period of three
years after the BFOH EFFECTIVE TIME, BFOH shall indemnify each person who served
as a director or officer of MFFC and MFSB on or before the BFOH EFFECTIVE TIME
to the fullest extent permitted under the Articles of Incorporation and Code of
Regulations of BFOH or MFFC and applicable provisions of Ohio law from and
against expenses, including attorneys' fees, judgments, fines and amounts paid
in settlement in connection with any threatened, pending or completed action,
suit or proceeding by reason of the fact that such person was a director or
officer of MFFC or MFSB.
(b) At or before the BFOH EFFECTIVE TIME, BFOH shall include
the directors and executive officers of MFFC and MFSB for a period of three
years after the BFOH EFFECTIVE TIME as persons covered and insured under the
current Directors and Officers' Liability Insurance Policy of BFOH in a manner
by which such directors and executive officers of MFFC and MFSB will be covered
and insured for acts or omissions occurring before the BFOH EFFECTIVE TIME.
SECTION 6.20. STOCK OPTIONS Before the BFOH EFFECTIVE TIME, MFFC shall
use reasonable efforts to obtain from each holder of an option which was granted
pursuant to the STOCK OPTION PLAN and which is not exercised before the BFOH
EFFECTIVE TIME a written agreement in a form reasonably satisfactory to MFFC and
BFOH pursuant to which such option is cancelled and extinguished in
consideration and exchange for the payment by BFOH of the cash calculated in
accordance with Section 2.01(a)(ii) of this AGREEMENT.
SECTION 6.21. SEVERANCE. Each MFFC or MFSB employee immediately before
the BFOH EFFECTIVE TIME (a) who is not listed in Section 6.17 of this AGREEMENT
and (b)(i) who is not employed after the BFOH EFFECTIVE TIME by BFOH or the BANK
or (ii) the employment of whom by BFOH or the BANK is terminated by BFOH or the
BANK without cause within one year after the BFOH EFFECTIVE TIME shall receive
an employment severance payment equal to the product of two weeks of the
employee's then current salary, multiplied by the number of total years of
service as a MFFC or MFSB employee; provided, however, that the minimum
severance payment shall equal thirteen weeks salary and the maximum severance
payment shall equal twenty-six weeks salary.
SECTION 6.22. ADVISORY BOARD. At or before the BFOH EFFECTIVE TIME,
BFOH shall form an Advisory Board consisting of the current members of the Board
of Directors of MFFC (hereinafter referred to as the "ADVISORY BOARD"). The
ADVISORY BOARD shall advise BFOH after the BFOH EFFECTIVE TIME on issues
affecting the merger of the businesses of MFSB with the BANK and on other
matters related to the operation of the business of MFFC and MFSB. The persons
who agree to serve on the ADVISORY BOARD shall serve
38
<PAGE> 39
for a period of one year term and shall be paid a fee for services in the amount
of $250 for each month of service.
ARTICLE SEVEN
CLOSING MATTERS
SECTION 7.01. CONDITIONS TO OBLIGATIONS OF BFOH, THE BANK, MFFC AND
MFSB. Notwithstanding any other provision of this AGREEMENT, the obligations of
BFOH, the BANK, MFFC and MFSB to effect the BFOH MERGER and the BANK MERGER
shall be subject to the fulfillment of each of the following conditions:
(a) This AGREEMENT shall have been validly adopted by the
affirmative vote of the holders of at least the
number of outstanding MFFC shares required under Ohio
law and the MFFC Articles of Incorporation to adopt
such agreements;
(b) All permits, approvals, consents, authorizations,
exemptions or waivers of any federal or state
governmental body or agency necessary or appropriate
for consummation of the BFOH MERGER and the BANK
MERGER shall have been obtained and all required
waiting periods shall have expired;
(c) All waivers, consents and approval of every person,
in addition to those required under subsections (a)
and (b) of this Section 7.01, necessary or
appropriate for the consummation of the BFOH MERGER
and the BANK MERGER shall have been obtained;
(d) MFFC shall have received the written opinions of
MCDONALD, dated the date of this AGREEMENT and the
date of the PROXY STATEMENT to the effect that the
BFOH MERGER CONSIDERATION is fair to the holders of
the MFFC common shares from a financial point of view
as of such dates;
(e) There shall not be in effect an order or decision of
a court of competent jurisdiction which prevents or
materially delays the consummation of the BFOH MERGER
or the BANK MERGER;
(f) There shall not be in effect any federal or state
law, rule or regulation which prevents or materially
delays consummation of the BFOH MERGER and the BANK
MERGER;
(g) BFOH and MFFC shall have received an opinion of Baker
& Hostetler, LLP, to the effect that the BFOH MERGER,
when consummated in accordance with the terms hereof,
will constitute a reorganization within the meaning
of Section 368(a)(1)(A) of the CODE; and
39
<PAGE> 40
(h) The REGISTRATION STATEMENT (including any
post-effective amendment thereto) shall be effective
under the ACT and no proceeding shall be pending or,
to the knowledge of BFOH, threatened by the SEC to
suspend the effectiveness of the REGISTRATION
STATEMENT.
SECTION 7.02. CONDITIONS TO OBLIGATIONS OF BFOH AND THE BANK. In
addition to the conditions contained in Section 7.01 of this AGREEMENT, the
obligations of BFOH and the BANK to effect the BFOH MERGER and the BANK MERGER
shall also be subject to the fulfillment of each of the following conditions:
(a) The representations and warranties of each of MFFC
and MFSB contained in Article Three of this AGREEMENT
shall be true in all material respects at and as of
the date hereof and at and as of the BFOH EFFECTIVE
TIME as if made at and as of such time, except to the
extent that any such representation and warranty is
made as of a specified date;
(b) Each of MFFC and MFSB shall have duly performed and
complied in all material respects with all
agreements, covenants and conditions required by this
AGREEMENT to be performed or complied with by it
before or at the BFOH EFFECTIVE TIME;
(c) There shall not have been a material adverse change
in the financial condition, assets, liabilities,
obligations, properties or business of MFFC and MFSB,
taken as a whole, after the date of this AGREEMENT,
except change resulting from action taken by MFFC or
MFSB at the request of BFOH, including, but not
limited to, action pursuant to Section 5.03 of this
AGREEMENT; change resulting from or attributable to
costs and expenses incurred in connection with the
transactions contemplated by this AGREEMENT; and
change resulting from or attributable to (i) change
in law or regulation affecting financial institutions
or their holding companies, (ii) change in generally
accepted accounting principles or regulatory
accounting principles applicable to financial
institutions and their holding companies; and (iii)
change in economic conditions applicable to
depository institutions generally or in general
levels of interest rates; and
(d) Each of MFFC and MFSB shall have delivered to BFOH a
certificate dated the BFOH EFFECTIVE TIME and signed
by the President and Treasurer of MFFC and MFSB to
the effect set forth in subsections (a), (b) and (c)
of this Section 7.02.
SECTION 7.03. CONDITIONS TO OBLIGATIONS OF MFFC AND MFSB. In addition
to the conditions contained in Section 7.01 of this AGREEMENT, the obligation of
MFFC and MFSB to effect the BFOH MERGER and the BANK MERGER shall also be
subject to the fulfillment of each of the following conditions:
40
<PAGE> 41
(a) The representations and warranties of BFOH and the
BANK contained in Article Four of this AGREEMENT
shall be true in all material respects at and as of
the date hereof and as of the BFOH EFFECTIVE TIME as
if made at and as of such time, except to the extent
that such representations and warranties are made as
of a specific date;
(b) Each of BFOH and the BANK shall have duly performed
and complied in all material respects with all
agreements, covenants and conditions required by this
AGREEMENT to be performed or complied with by them
before or at the BFOH EFFECTIVE TIME;
(c) There shall not have been a material adverse change
in the financial condition, assets, liabilities,
obligations, properties, business or prospects of
BFOH or the BANK after the date of this AGREEMENT;
(d) BFOH shall have delivered to MFFC a certificate dated
the BFOH EFFECTIVE TIME and signed by the Chairman
and the President of BFOH to the effect set forth in
subsections (a), (b) and (c) of this Section 7.03;
and
(e) The AVERAGE shall not be less than $17.25.
ARTICLE EIGHT
TERMINATION
SECTION 8.01. TERMINATION. This AGREEMENT may be terminated at any time
prior to the BFOH EFFECTIVE TIME, whether before or after approval by the
shareholders of MFFC:
(a) By mutual consent of the Boards of Directors of MFFC,
MFSB, BFOH and the BANK; or
(b) By the Board of Directors of MFFC or BFOH if:
(i) The BFOH MERGER shall not have been
consummated on or before December 31, 2000;
or
(ii) Any event occurs which, in the reasonable
opinion of either Board, would preclude
satisfaction of any of the conditions set
forth in Section 7.01 of this AGREEMENT; or
(c) By the Board of Directors of BFOH if any event occurs
which, in the reasonable opinion of such Board, would
preclude compliance with any of the conditions set
forth in Section 7.02 of this AGREEMENT; or
(d) By the Board of Directors of MFFC if any event occurs
which, in the reasonable opinion of such Board, would
preclude compliance with any of the conditions set
forth in Section 7.03 of this AGREEMENT; or
41
<PAGE> 42
(e) By the Board of Directors of MFFC if MFFC accepts an
ACQUISITION TRANSACTION negotiated in accordance with
Section 5.02 of this AGREEMENT.
SECTION 8.02. WRITTEN NOTICE OF TERMINATION. In order to terminate this
AGREEMENT pursuant to Section 8.01 of this AGREEMENT, the party so acting shall
give written notice of such termination to the other party. This AGREEMENT shall
terminate on the date such notice is given.
SECTION 8.03. EFFECT OF TERMINATION. In the event of the termination of
this AGREEMENT, the provisions of this AGREEMENT shall become void and have no
effect; provided, however, that (a) the provisions set forth in Sections 6.06,
6.07 and 6.08 of this AGREEMENT shall survive such termination and shall remain
in full force and effect and (b) a termination of this AGREEMENT shall not
affect the liability of any party for an uncured and material breach of any term
or condition of this AGREEMENT; provided, however, that in the event of the
exercise by BFOH of any option to purchase MFFC common shares granted by MFFC to
BFOH, neither MFFC nor MFSB shall have any liability to BFOH or the BANK for any
breach of any term or condition of this AGREEMENT or for any other cost, expense
or damage incurred by BFOH or the BANK in connection with the transactions
contemplated by this AGREEMENT.
SECTION 8.04. AMENDMENT. This AGREEMENT may only be amended by the
unanimous consent of MFFC, MFSB, BFOH and the BANK by action taken by their
respective Boards of Directors, at any time before or after approval of this
AGREEMENT by the shareholders of MFFC, but after such approval no amendment
shall be made which materially and adversely affects the rights of such
shareholders without the further approval of such shareholders. This AGREEMENT
may not be amended except by an instrument in writing signed on behalf of each
of the parties hereto.
SECTION 8.05. WAIVER. Any term or provision of this AGREEMENT (other
than the requirement for shareholder approval) may be waived in writing at any
time by the party which is, or whose shareholders are, entitled to the benefits
thereof.
ARTICLE NINE
MISCELLANEOUS
SECTION 9.01. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations, warranties and covenants in this AGREEMENT shall expire on, and
be terminated and extinguished at, the BFOH EFFECTIVE TIME, other than Sections
6.12, 6.14, 6.15, 6.16, 6.17, 6.18, 6.19, 6.21 and 6.22; provided, however, that
no such representations, warranties or covenants shall be deemed to be
terminated or extinguished so as to deprive BFOH or the BANK (or any director,
officer or controlling person thereof) of any defense in law or equity which
otherwise would be available against the claims of any person, including,
without limitation, any shareholder or former shareholder of either BFOH or
MFFC.
42
<PAGE> 43
SECTION 9.02. NOTICES. All notices and other communications hereunder
shall be in writing and shall be deemed given if delivered personally or mailed
by registered or certified mail (return receipt requested) to the parties at the
following addresses (or at such other address for a party as shall be specified
by like notice):
If addressed to BFOH or the BANK:
Gary N. Fields
President
BancFirst Ohio Corp.
P.O. Box 4658
422 Main Street
Zanesville, Ohio 43701
with a copy to:
Amy M. Shepherd
Baker & Hostetler, LLP
65 East State Street
Suite 2100
Columbus, Ohio 43215
If addressed to MFFC or MFSB:
Glenn E. Aidt
President
Milton Federal Financial Corporation
25 Lowry Drive
West Milton, Ohio 45383
with a copy to:
John C. Vorys
Vorys, Sater, Seymour and Pease LLP
52 East Gay Street
P.O. Box 1008
Columbus, Ohio 43216-1008
SECTION 9.03. ENTIRE AGREEMENT. This AGREEMENT (including the exhibits,
documents and instruments referred to herein or therein) (a) constitutes the
entire agreement and supersedes all other prior agreements and understandings,
both written and oral, among the parties, or any of them, with respect to the
subject matter hereof; (b) is not intended to and shall not confer any rights or
remedies hereunder upon any person other than BFOH or MFFC; (c) shall not be
assigned by operation of law or otherwise; and (d) shall be governed in all
respects, including validity, interpretation and effect, by the laws of the
State of Ohio.
43
<PAGE> 44
SECTION 9.04. EXECUTION IN COUNTERPARTS. This AGREEMENT may be executed
in two or more counterparts which together shall constitute a single AGREEMENT.
SECTION 9.05. HEADINGS. The headings of articles and sections herein
are for convenience of reference only, do not constitute a part of this
AGREEMENT and shall not be deemed to limit or affect any of the provisions
hereof.
IN WITNESS WHEREOF, BFOH, the BANK, MFFC and MFSB have caused this
AGREEMENT to be executed by their duly authorized officers as of the day and
year first above written.
Attest: BancFirst Ohio Corp.
By /s/ Gary N. Fields
------------------------------------------
Gary N. Fields
/s/ Kim Taylor its President and Chief Executive Officer
------------------
Attest: The First National Bank of Zanesville
By /s/ Edward N. Cohn
------------------------------------------
Edward N. Cohn
/s/ Kim Taylor its Senior Vice President
------------------
Attest: Milton Federal Financial Corporation
By /s/ Glenn E. Aidt
------------------------------------------
Glenn E. Aidt
/s/ Thomas P. Eyer its President
------------------
Attest: Milton Federal Savings Bank
By /s/ Glenn E. Aidt
------------------------------------------
Glenn E. Aidt
/s/ Thomas P. Eyer its President
------------------
44
<PAGE> 45
ACKNOWLEDGMENT
STATE OF OHIO )
) SS:
COUNTY OF _____________________________ )
BE IT REMEMBERED that on this 13th day of January, 2000, personally
came before me, a Notary Public in and for the State and County aforesaid, Gary
N. Fields, President of BancFirst Ohio Corp., a bank holding company
incorporated under the laws of Ohio, and duly executed the Agreement and Plan of
Reorganization before me and acknowledged the same to be his act and deed and
the act and deed of said Corporation and that the facts therein are true.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 13th day
of January, 2000.
----------------------------------------------
Notary Public
STATE OF OHIO )
) SS:
COUNTY OF _____________________________ )
BE IT REMEMBERED that on this 13th day of January, 2000, personally
came before me, a Notary Public in and for the State and County aforesaid,
Edward N. Cohn, Senior Vice President of First National Bank of Zanesville, a
national bank incorporated under the laws of the United States, and duly
executed the Agreement and Plan of Reorganization before me and acknowledged the
same to be his act and deed and the act and deed of said Corporation and that
the facts therein are true.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 13th day
of January, 2000.
----------------------------------------------
Notary Public
45
<PAGE> 46
STATE OF OHIO )
) SS:
COUNTY OF _____________________________ )
BE IT REMEMBERED that on this 13th day of January, 2000, personally
came before me, a Notary Public in and for the State and County aforesaid, Glenn
E. Aidt, President of Milton Federal Financial Corporation, a savings and loan
holding company incorporated under the laws of Ohio, and duly executed the
Agreement and Plan of Reorganization before me and acknowledged the same to be
his act and deed and the act and deed of said Corporation and that the facts
therein are true.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 13th day
of January, 2000.
----------------------------------------------
Notary Public
STATE OF OHIO )
) SS:
COUNTY OF _____________________________ )
BE IT REMEMBERED that on this 13th day of January, 2000, personally
came before me, a Notary Public in and for the State and County aforesaid, Glenn
E. Aidt, President of Milton Federal Savings Bank, FSB, a federal savings bank
incorporated under the laws of Ohio, and duly executed the Agreement and Plan of
Reorganization before me and acknowledged the same to be his act and deed and
the act and deed of said Corporation and that the facts therein are true.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 13th day
of January, 2000.
----------------------------------------------
Notary Public
46
<PAGE> 47
Exhibit A
BANCFIRST OHIO CORP.
DIRECTORS AND OFFICERS AFTER MERGER
DIRECTORS
---------
William F. Randles, Chairman of the Board
Milman H. Linn, III
Karl C. Saunders
Gary N. Fields
James L. Nichols
John W. Straker, Jr.
Phillip E. Burke
OFFICERS
--------
Gary N. Fields, President and CEO
James H. Nicholson, Vice President and Secretary
Edward N. Cohn, Vice President
Kim M. Taylor, Treasurer and Chief Financial Officer
<PAGE> 48
Exhibit B
FIRST NATIONAL BANK OF ZANESVILLE
DIRECTORS AND OFFICERS AFTER MERGER
DIRECTORS
---------
William F. Randles, Chairman of the Board
Frank J. Dosch
Susan S. Henderson
Milman H. Linn, III
James M. Matesich
James H. Nicholson
Karl C. Saunders
William T. Stewart
Lynn H. Willett
Gary N. Fields
Edward N. Cohn
James L. Nichols
John W. Straker, Jr.
Judith B. Pierce
OFFICERS
--------
James H. Nicholson, President and CEO
Edward N. Cohn, Executive Vice President and COO
Kim M. Taylor, Senior Vice President and Chief Financial Officer
Robert M. Butler, President and CEO, First Financial Services Group, N.A.
Joseph M. Arie, Senior Vice President
Gary L. McGlaughlin, Senior Vice President
Kevin W. Nelson, Vice President
Thomas J. Selock, Senior Vice President
Dennis K. Miller, Senior Vice President
Susan Larson, Vice President
<PAGE> 49
Exhibit C - List of Bank Offices After Merger
First National Bank Financial Centers Bank First National Financial Centers
- ------------------------------------- -------------------------------------
422 Main Street 3005 Northwest Boulevard
P.O. Box 4658 Upper Arlington, Ohio 43221
Zanesville, Ohio 43702-4658
2585 East Main Street
3573 Maple Avenue Bexley, Ohio 43209
P.O. Box 4658
Zanesville, Ohio 43702-4658 66 South Third Street
P.O. Box 18060
727 Main Street Columbus, Ohio 43218-0060
P.O. Box 42
Dresden, Ohio 43821-0042 4311 North High Street
Columbus, Ohio 43215
422 Main Street
P.O. Box 217 222 East Broadway
Duncan Falls, Ohio 43734-0217 Granville, Ohio 43023
10 West Third Street 580 Hebron Road
P.O. Box 52 Heath, Ohio 43056
Frazeysburg, Ohio 43822-0052
42 North Third Street
2801 Maple Avenue Newark, Ohio 43055-5533
P.O. Box 4658
Zanesville, Ohio 43702-4658 36 West Board Street
Pataskala, Ohio 43062-0087
27 East Main Street
P.O. Box 239 8 North Main Street
New Concord, Ohio 43762-0239 Utica, Ohio 43080
80 Sunrise Center Road 5665 North Hamilton Rd.
P.O. Box 4658 Columbus, Ohio 43230-1323
Zanesville, Ohio 43702-4658
2010 Lakeman Drive
225 Maysville Avenue P.O. Box 252
P.O. Box 4658 Bellbrook, Ohio 45305
S. Zanesville, Ohio 43702-4658
500 Miamisburg-Centerville Rd.
113 N. Fifth St. Dayton, Ohio 45459
P.O. Box 4658
Zanesville, Ohio 43702-4658 973 North 21st Street
Newark, Ohio 43055
<PAGE> 50
Bank First National Financial Centers
-------------------------------------
(continued)
25 Lowry Drive
West Milton, Ohio 45383
415 West National Road
Englewood, Ohio 45322
709 Arlington Road
Brookville, Ohio 45309
22 South Tippercanoe Drive
Tipp City, Ohio 45371
<PAGE> 51
Exhibit D
January ___, 2000
Bancfirst Ohio Corp.
422 Main Street
Zanesville, Ohio 43701
Attention: Gary N. Fields
Milton Federal Financial Corporation
25 Lowry Drive
West Milton, Ohio 45383
Attention: Glenn E. Aidt
Ladies and Gentlemen:
I have been advised that I may be deemed to be, but do not admit that I
am, an "affiliate" of Milton Federal Financial Corporation, an Ohio corporation
("MFFC"), as that term is defined in Rule 144 promulgated by the Securities and
Exchange Commission (the "SEC") under the Securities Act of 1933, as amended
(the "Securities Act"). I understand that pursuant to the terms of the Agreement
and Plan of Reorganization, dated as of January ___, 2000 (the "Merger
Agreement"), by and between MFFC and BancFirst Ohio Corp., an Ohio corporation
("BFOH"), at the effective time of the merger, MFFC will merge with and into
BFOH (the "Merger").
I further understand that as a result of the Merger, I may receive
shares of common stock, no par value per share, of BFOH in exchange for shares
of common stock, par value $____ per share, of MFFC.
I have carefully read this letter and reviewed the Merger Agreement and
discussed their requirements and other applicable limitations upon my ability to
sell, transfer, or otherwise dispose of BFOH Stock, to the extent I felt
necessary, with my counsel or counsel for MFFC.
I represent, warrant and covenant with and to BFOH that in the event I
receive any BFOH Stock as a result of the Merger:
1. I shall not make any sale, transfer, or other disposition of
such BFOH Stock unless (i) such sale, transfer or other
disposition has been registered under the Securities Act, (ii)
such sale, transfer or other disposition is make in conformity
with the provisions of Rule 145 under the Securities Act (as
such rule may be amended from time to time), or (iii) in the
opinion of counsel in form and substance reasonably
satisfactory to BFOH, or under a "no-action" letter obtained
by me from the staff of the SEC, such sale, transfer or other
disposition will not violate or is otherwise exempt from
registration under the Securities Act.
2. I understand that BFOH is under no obligation to register the
sale, transfer or other disposition of Shares of BFOH Stock by
me or on my behalf under the Securities Act or to take any
other action necessary in order to make compliance with an
exemption from such registration available.
3. I understand that stop transfer instructions will be given to
BFOH's transfer agent with respect to shares of BFOH Stock
issued to me as a result of the Merger and that there will be
placed on the certificates for such shares, or any
substitutions therefor, a legend stating in substance:
<PAGE> 52
"The shares represented by this certificate were
issued in a transaction to which Rule 145 promulgated under
the Securities Act of 1933 applies. The shares represented by
this certificate may be transferred only in accordance with
the terms of a letter agreement, dated January ___, 2000,
between the registered holder hereof and BFOH, a copy of which
agreement is on file at the principal offices of BFOH. This
legend shall become null and void on and after ______________,
[one year after the Effective Time.]"
4. I understand that, unless transfer by me of the BFOH Stock
issued to me as a result of the Merger has been registered
under the Securities Act or such transfer is made in
conformity with the provisions of Rule 145(d) under the
Securities Act, BFOH reserves the right, in its sole
discretion, to place the following legend on the certificates
issued to my transferee:
"The shares represented by this certificate have not
been registered under the Securities Act of 1933 and were
acquired from a person who received such shares in a
transaction to which Rule 145 under the Securities Act of 1933
applies. The shares have been acquired by the holder not with
a view to, or for resale in connection with, any distribution
thereof within the meaning of the Securities Act of 1933 and
may not be offered, sold, pledged or otherwise transferred
except in accordance with an exemption from the registration
requirements of the Securities Act of 1933. This legend shall
become null and void on and after ____________ [one year after
the effective time]."
It is understood and agreed that the legends set forth in paragraphs
(3) and (4) above shall be removed by delivery of substitute certificates
without such legends if I shall have delivered to BFOH (i) a copy of a "no
action" letter from the staff of the SEC, or an opinion of counsel in form and
substance reasonably satisfactory to BFOH, to the effect that such legend is not
required for purposes of the Act, or (ii) evidence or representations
satisfactory to BFOH that the BFOH Stock represented by such certificates is
being or has been sold in conformity with the provisions of Rule 145(d).
I further understand and agree that this letter agreement shall apply
to all shares of MFFC Stock and BFOH Stock that I am deemed to beneficially own
pursuant to applicable federal securities law.
Very truly yours,
By:
------------------------------------
Name:
----------------------------------
Accepted this ____ day of
January, 2000
Milton Federal Financial Corporation
By:
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Name:
Title:
BancFirst Ohio Corp.
By:
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Name:
Title:
