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)
October 25, 2000
HARDIN BANCORP, INC.
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(Exact name of Registrant as specified in its Charter)
Delaware 0-26560 43-1719104
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(State or other (Commission File No.) (IRS Employer
Jurisdiction of Identification
Incorporation) Number)
201 Northeast Elm Street, Hardin, Missouri 64035
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (660) 398-4312
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N/A
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(Former name or former address, if changed since last report)
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Item 5. Other Events
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On October 25, 2000, Hardin Bancorp, Inc., ("Hardin Bancorp") entered
into an Agreement and Plan of Merger (the "Agreement") with Dickinson Financial
Corporation ("Dickinson Financial"). Under the terms of the Agreement, a
subsidiary of Dickinson Financial will be merged into Hardin Bancorp and all
shares of Hardin Bancorp will be cancelled. Pursuant to the Agreement, each
share of common stock of Hardin Bancorp that is issued and outstanding at the
effective time of the merger (other than shares of common stock held in treasury
or held by Dickinson Financial, which shares will be canceled without payment of
any consideration, and other than shares for which appraisal rights have
properly been demanded) will be converted into the right to receive $21.75 in
cash per share. Each option to purchase Hardin Bancorp's common stock shall be
converted into the right to receive in cash an amount equal to the difference
(if a positive number) between $21.75 and the exercise price of the option.
In connection with the transaction, Hardin Bancorp's wholly owned
subsidiary, Hardin Federal Savings Bank, a federal savings bank, would merge
into Bank Midwest, N.A., a national banking association and wholly-owned
subsidiary of Dickinson Financial.
Consummation of the merger is subject to the satisfaction of certain
conditions, including approval by Hardin Bancorp's shareholders and the receipt
of all required regulatory approvals. It is anticipated that the transaction
will be completed during the first quarter of 2001.
Hardin Bancorp publicly announced the proposed merger in a press
release dated October 26, 2000, a copy of which is attached hereto as Exhibit
99.
The summary of the Agreement provided in this report is not complete
and is qualified in its entirety by reference to the complete text of the
Agreement, which is attached hereto as exhibit 2.
Item 7. Financial Statements, Pro Forma Financial Information, and Exhibits
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The following Exhibits are filed as part of this report:
Exhibit No. Description
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2 Agreement and Plan of Merger by and among Dickinson
Financial Corporation and Hardin Bancorp, Inc. dated
as of October 25, 2000
99 Press Release of Hardin Bancorp, Inc.
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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.
HARDIN BANCORP, INC.
DATE: November 7, 2000 By: /s/ Robert W. King
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Robert W. King
President and Chief Executive Officer
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EXHIBIT INDEX
The following Exhibits are filed as part of this report:
Exhibit Description
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2 Agreement and Plan of Merger by and among Dickinson Financial
Corporation and Hardin Bancorp, Inc. dated as of October 25, 2000
99 Press Release of Hardin Bancorp, Inc.
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TABLE OF CONTENTS
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Article I. The Merger....................................................................................1
Section 1.01 Structure of the Merger..................................................................1
Section 1.02 Status and Conversion of Shares in the Merger............................................1
Section 1.03 Exchange Procedures......................................................................2
Section 1.04 Stock Options; Restricted Stock..........................................................3
Section 1.05 Directors and Officers of the Surviving Corporation at Effective Time....................4
Section 1.06 Certificate of Incorporation and Bylaws of the Surviving Corporation.....................4
Section 1.07 Dissenters' Rights.......................................................................4
Section 1.08 Related Mergers..........................................................................4
Section 1.09 Alternate Structure......................................................................5
Article II. Stockholders' Equity at Closing...............................................................5
Section 2.01 Adjusted Stockholders' Equity............................................................5
Section 2.02 Valuation of Assets......................................................................5
Section 2.03 Valuation of Liabilities.................................................................6
Article III. Representations and Warranties................................................................6
Section 3.01 Disclosure Letters.......................................................................6
Section 3.02 Standards................................................................................7
Section 3.03 Representations and Warranties of Seller.................................................7
Section 3.04 Representations and Warranties of Buyer.................................................19
Article IV. Conduct Pending the Merger...................................................................22
Section 4.01 Conduct of Seller's Business Prior to the Effective Time................................22
Section 4.02 Forbearance by Seller...................................................................24
Section 4.03 Conduct of Buyer's Business Prior to the Effective Time.................................26
Article V. Covenants....................................................................................27
Section 5.01 Acquisition Proposals...................................................................27
Section 5.02 Certain Policies and Actions of Seller..................................................27
Section 5.03 Access and Information..................................................................28
Section 5.04 Certain Filings, Consents and Arrangements..............................................29
Section 5.05 Additional Actions......................................................................29
Section 5.06 Publicity...............................................................................29
Section 5.07 Stockholders Meeting....................................................................29
Section 5.08 Proxy Statement.........................................................................30
Section 5.09 Notification of Certain Matters.........................................................30
Section 5.10 Employees and Benefit Plans.............................................................30
Section 5.11 Indemnification.........................................................................32
</TABLE>
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<S> <C> <C>
Section 5.12 Acquisition Sub.........................................................................33
Article VI. Conditions to Consummation...................................................................33
Section 6.01 Conditions to Each Party's Obligations..................................................33
Section 6.02 Conditions to the Obligations of Buyer..................................................34
Section 6.03 Conditions to the Obligations of Seller.................................................34
Article VII. Data Processing...........................................................................35
Section 7.01 Sample Data.............................................................................35
Section 7.02 Information for Check Ordering..........................................................35
Section 7.03 Installation of Data Circuits...........................................................35
Article VIII. Termination...............................................................................35
Section 8.01 Termination.............................................................................35
Section 8.02 Termination Fee.........................................................................36
Section 8.03 Effect of Termination...................................................................36
Article IX. Closing and Effective Time...................................................................36
Section 9.01 Effective Time..........................................................................36
Section 9.02 Deliveries at the Closing...............................................................37
Article X. Certain Other Matters........................................................................37
Section 10.01 Certain Definitions; Interpretation.....................................................37
Section 10.02 Survival................................................................................37
Section 10.03 Waiver; Amendment.......................................................................37
Section 10.04 Counterparts............................................................................37
Section 10.05 Governing Law...........................................................................38
Section 10.06 Expenses................................................................................38
Section 10.07 Notices.................................................................................38
Section 10.08 Entire Agreement, Etc...................................................................38
Section 10.09 Specific Performance....................................................................38
Section 10.10 Successors and Assigns; Assignment......................................................39
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Agreement and Plan of Merger - Hardin Bancorp, Inc. October 25, 2000
AGREEMENT AND PLAN OF MERGER
This is an Agreement and Plan of Merger, dated as of the 25th day of
October, 2000 ("Agreement"), by and among DICKINSON FINANCIAL CORPORATION, a
Missouri corporation ("Buyer"), and HARDIN BANCORP, INC., a Delaware corporation
("Seller").
Introductory Statement
The Board of Directors of each of Buyer and Seller (i) has determined
that this Agreement and the business combination and related transactions
contemplated hereby are in the best interests of Buyer and Seller, respectively,
and in the best interests of their respective stockholders and (ii) has
approved, at meetings of each of such Boards of Directors, this Agreement.
Buyer and Seller desire to make certain representations, warranties and
agreements in connection with the business combination and related transactions
provided for herein and to prescribe various conditions to such transactions.
Buyer will organize a new wholly-owned subsidiary of Buyer to
facilitate the business combination contemplated hereby.
In consideration of their mutual promises and obligations hereunder,
the parties hereto adopt and make this Agreement and prescribe the terms and
conditions hereof and the manner and basis of carrying it into effect, which
shall be as follows:
Article I. The Merger Section
1.01 Structure of the Merger.
Prior to the Effective Time (as defined in Section 9.01), Buyer will
establish a new wholly-owned subsidiary ("Acquisition Sub"). At the Effective
Time, Acquisition Sub will merge with and into Seller ("Merger"), with Seller
being the surviving corporation of the Merger (the "Surviving Corporation"),
pursuant to the provisions of, and with the effect provided in, the Delaware
General Corporation Law ("DGCL"). Upon consummation of the Merger, the separate
corporate existence of Acquisition Sub shall cease. Seller, as the Surviving
Corporation, shall continue to be governed by the laws of the State of Delaware
and its separate corporate existence, with all of its rights, privileges,
immunities, powers and franchises, shall continue unaffected by the Merger. The
name of the Surviving Corporation shall be Hardin Bancorp, Inc. From and after
the Effective Time, the Surviving Corporation shall possess all of the
properties and rights and be subject to all of the liabilities and obligations
of Acquisition Sub, all as more fully described in the DGCL.
Section 1.02 Status and Conversion of Shares in the Merger.
a) Effect on Shares of Seller Common Stock. By virtue of the Merger,
automatically and without any action on the part of the holder thereof, each
share of common stock of Seller ("Seller Common Stock") that is issued and
outstanding at the Effective Time, other than Excluded Shares (as defined
below), shall be canceled and cease to be outstanding and shall be converted
into and become the right to receive $21.75 in cash (the "Merger
Consideration"). After the Effective Time, no dividends or other distributions
made or payable by Seller shall accrue for the benefit of, any Seller Common
Stock.
"Excluded Shares" shall consist of (i) shares of Seller Common Stock as
to which the respective holders thereof have properly demanded appraisal rights
and have not failed to perfect, have not effectively withdrawn and have not lost
their rights to appraisal and payment pursuant to any applicable law providing
for dissenters' or appraisal rights (the "Dissenters' Shares"), (ii) shares held
by Seller as treasury stock and (iii) shares held by Buyer. After the Effective
Time, no dividends or other distributions made or payable by Seller shall accrue
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Agreement and Plan of Merger - Hardin Bancorp, Inc. October 25, 2000
for the benefit of, any Dissenters' Shares, and no interest shall accrue with
respect to payments due to the holders of Dissenters' Shares, unless such
accruals are required by the provisions of the DGCL. Each option to purchase
Seller Common Stock granted pursuant to the Seller's stock option plan,
outstanding immediately prior to the Effective Time, shall be cancelled in
exchange for the right to receive cash payments as set forth in Section 1.04.
b) As of the Effective Time, each Excluded Share, other than
Dissenters' Shares, shall be canceled and retired and shall cease to exist, and
no exchange or payment shall be made with respect thereto. In addition, no
Dissenters' Shares shall be converted into the Merger Consideration pursuant to
this Section 1.02 but instead shall be treated in accordance with the procedures
set forth in Section 1.07 of this Agreement.
c) At and as of the Effective Time of the Merger, each share of
Acquisition Sub shall be converted into one share of Common Stock , $.01 par
value, of the Surviving Corporation.
Section 1.03 Exchange Procedures.
a) Appropriate transmittal materials ("Letter of Transmittal") shall be
mailed by the Paying Agent (as defined in Section 1.03c)) as soon as reasonably
practicable after the Effective Time, and in no event later than five (5)
business days thereafter, to each holder of record of Seller Common Stock, other
than holders of Excluded Shares, as of the Effective Time. A Letter of
Transmittal will be deemed properly completed by holders of Seller Common Stock
only if accompanied by certificates representing all shares of Seller Common
Stock to be converted thereby, except as provided in Section 1.03h) below.
b) At and after the Effective Time, each certificate ("Seller
Certificate") previously representing shares of Seller Common Stock (except as
specifically set forth in Section 1.02) shall represent only the right to
receive the Merger Consideration multiplied by the number of shares of Seller
Common Stock previously represented by the Seller Certificate.
c) Prior to the Effective Time, Buyer shall select a bank or trust
company, which may be a Subsidiary of Buyer, acceptable to Seller (Seller's
approval shall not be required if Paying Agent is a Subsidiary of Buyer, which
shall act as Paying Agent ("Paying Agent") for the benefit of the holders of
shares of Seller Common Stock, for exchange in accordance with this Section
1.03. On or prior to the Effective Time, Buyer shall deposit or cause to be
deposited, in trust with the Paying Agent, an amount of cash equal to the
aggregate Merger Consideration that the holders of shares of Seller Common Stock
shall be entitled to receive at the Effective Time pursuant to Section 1.02
hereof.
d) The Letter of Transmittal (which shall be subject to the reasonable
approval of Seller and Buyer) shall (i) specify that delivery shall be effected,
and risk of loss of the Seller Certificates shall pass, only upon delivery of
the Seller Certificates to the Paying Agent, (ii) specify that the shares of
Seller Common Stock have been canceled, that the consideration to be paid for
such shares shall be paid only upon delivery and surrender of such Seller
Certificates (except as provided in Section 1.03h) below), and that neither
dividends nor interest shall accrue on the cash consideration payable after the
Effective Time of the Merger, (iii) be in a form and contain any other
provisions which are usual and customary in cash transactions of this nature, as
Buyer may reasonably determine, and (iv) include instructions for use in
effecting the surrender of the Seller Certificates in exchange for the Merger
Consideration. Upon the proper surrender of the Seller Certificates to the
Paying Agent together with a properly completed and duly executed Letter of
Transmittal, the holder of such Seller Certificates shall be entitled to receive
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Agreement and Plan of Merger - Hardin Bancorp, Inc. October 25, 2000
in exchange therefor a check in the amount equal to the cash that such holder
has the right to receive pursuant to Section 1.02. As soon as practicable, but
no later than 5 business days following receipt of the properly completed letter
of Transmittal and any necessary accompanying documentation, the Paying Agent
shall make payment of the Merger Consideration as provided herein. If there is a
transfer of ownership of any shares of Seller Common Stock not registered in the
transfer records of Seller, the Merger Consideration shall be issued to the
transferee thereof if the Seller Certificates representing such Seller Common
Stock are presented to the Paying Agent, accompanied by all documents required,
in the reasonable judgment of Buyer and the Paying Agent, (x) to evidence and
effect such transfer and (y) to evidence that any applicable stock transfer
taxes have been paid.
e) From and after the Effective Time, there shall be no transfers on
the stock transfer records of Seller of any shares of Seller Common Stock. If,
after the Effective Time, Seller Certificates are presented to Buyer, they shall
be exchanged for the Merger Consideration deliverable in respect thereof
pursuant to this Agreement in accordance with the procedures set forth in this
Section 1.03.
f) Any portion of the aggregate amount of cash to be paid pursuant to
Section 1.02 that remains unclaimed by the stockholders of Seller for 12 months
after the Effective Time shall be repaid by the Paying Agent to Buyer upon the
written request of Buyer. After such request is made, any stockholders of Seller
who have not theretofore complied with this Section 1.03 shall look only to
Buyer for the Merger Consideration deliverable in respect of each share of
Seller Common Stock such stockholder holds, as determined pursuant to Section
1.02 of this Agreement, without any interest, and subject to applicable
abandoned property, escheat and similar laws. Notwithstanding the foregoing,
neither the Paying Agent nor any party to this Agreement (or any affiliate
thereof) shall be liable to any former holder of Seller Common Stock for any
amount delivered to a public official pursuant to applicable abandoned property,
escheat or similar laws.
g) Buyer and the Paying Agent shall be entitled to rely upon Seller's
stock transfer books to establish the identity of those persons entitled to
receive the Merger Consideration, which books shall be conclusive with respect
thereto. In the event of a dispute with respect to ownership of stock
represented by any Seller Certificate, Buyer and the Paying Agent shall be
entitled (i) to deposit any Merger Consideration represented thereby in escrow
with an independent third party and thereafter be relieved with respect to any
claims thereto, or at Buyer's option (ii) to file a suit in interpleader against
the competing parties, deposit the Merger Consideration due with respect to the
disputed Seller Certificate with a court of competent jursidiction, and
thereafter be discharged from any responsibility to the competing parties.
h) If any Seller Certificate shall have been lost, stolen or destroyed,
upon the making of an affidavit of that fact by the person claiming such Seller
Certificate to be lost, stolen or destroyed and, if required by the Paying
Agent, the posting by such person of a bond in such amount as the Paying Agent
may direct as indemnity against any claim that may be made against it with
respect to such Seller Certificate, the Paying Agent will deliver in exchange
for such lost, stolen or destroyed Seller Certificate the Merger Consideration
deliverable in respect thereof pursuant to Section 1.02.
Section 1.04 Stock Options; Restricted Stock.
a) At the Effective Time, each option to acquire shares of Seller
Common Stock (a "Seller Option"), whether or not then vested or exercisable,
granted pursuant to the Seller's Stock Option Plan (the "Seller Option Plan")
that is then outstanding and unexercised shall be canceled and terminated and in
lieu thereof the holders of such options shall be paid by Seller in cash in an
amount equal to the product of (i) the number of shares of Seller Common Stock
subject to such option at the Effective Time and (ii) an amount by which the
Merger Consideration per share exceeds the exercise price per share of such
option net of any cash which must be withheld under federal and state income and
employment tax requirements. In the event that the exercise price of a Seller
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Agreement and Plan of Merger - Hardin Bancorp, Inc. October 25, 2000
Option is greater than the Merger Consideration, then at the Effective Time such
Seller Option shall be canceled without any payment made in exchange therefore.
At the Effective Time, the Seller Option Plan shall be deemed terminated
b) At the Effective Time, each share of restricted Seller Common Stock (the
"Seller Restricted Stock"), whether or not then vested, granted pursuant to
Seller's Recognition and Retention Plan (the "Seller Recognition and Retention
Plan") that is then outstanding shall be canceled, and in lieu thereof the
holders of such shall be paid by Seller in cash in an amount equal to the
product of (i) the number of shares of Seller Restricted Stock outstanding at
the Effective Time and (ii) the Merger Consideration, net of any cash which must
be withheld under federal and state income and employment tax requirements. In
addition, each holder of Seller Restricted Stock shall receive such holder's
allocable share of dividends held by the Seller Recognition and Retention Plan
with respect to such Seller Restricted Stock. At the Effective Time, the Seller
Recognition and Retention Plan shall be deemed terminated.
Section 1.05 Directors and Officers of the Surviving Corporation at Effective
Time. At the Effective Time, the directors and officers of the Surviving
Corporation shall consist of the directors and officers of Acquisition Sub
serving immediately prior to the Effective Time (a list of which is attached
hereto as Exhibit A), each to hold office in accordance with the certificate of
incorporation and bylaws of the Surviving Corporation until their respective
successors are duly elected or appointed and qualified.
Section 1.06 Certificate of Incorporation and Bylaws of the Surviving
Corporation. The certificate of incorporation and bylaws of Seller in effect
immediately prior to the Effective Time shall be the certificate of
incorporation and bylaws of the Surviving Corporation from and after the
Effective Time until amended as provided by law.
Section 1.07 Dissenters' Rights.
a) Buyer shall pay for any Dissenters' Shares in accordance with
Section 262 of the DGCL providing for appraisal rights, and the holders thereof
shall not be entitled to receive any Merger Consideration; provided, that if
appraisal rights under such law with respect to any Dissenters' Shares shall
have been effectively withdrawn or lost, such shares will thereupon cease to be
treated as Dissenters' Shares and shall be converted into the right to receive
the Merger Consideration pursuant to Section 1.02.
b) Seller shall (i) give Buyer prompt written notice of the receipt of
any notice from a stockholder purporting to exercise any dissenters' rights,
(ii) not settle nor offer to settle any demand for payment without the prior
written consent of Buyer and (iii) not waive any failure to comply strictly with
any procedural requirements of Section 262 of the DGCL.
Section 1.08 Related Mergers. Immediately following the Effective Time, Buyer
anticipates that Buyer will cause Seller S&L (as defined in Section 3.03a)i) to
be merged into Buyer Bank (as defined in Section 3.04a)i)) (the "Bank Merger")
pursuant to a merger agreement substantially in the form attached as Exhibit C
with such changes as Buyer may reasonably suggest. Concurrently with or at
approximately the same time as Buyer files applications with the regulatory
authorities for the necessary approvals for the Merger, Buyer will file
applications for the necessary approvals for the Bank Merger so that it may
become effective shortly after the Effective Time. Buyer Bank and Seller S&L
shall enter into such Bank Merger Agreement and Seller agrees to cooperate with
Buyer, and to use its power as the sole stockholder of Seller S&L to cause
Seller S&L to cooperate with Buyer in any necessary preparations for the Bank
Merger. Seller's and Seller S&L's cooperation shall include but not be limited
to board approvals of the Bank Merger and the execution of merger documents;
provided, however, that (i) neither Seller nor Seller S&L shall be requested to
do any act in violation of any law or fiduciary duty; (ii) such Bank Merger
shall not become effective
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Agreement and Plan of Merger - Hardin Bancorp, Inc. October 25, 2000
until after the Effective Time, (iii) there shall be no stockholder approval by
Seller or Seller S&L of the Related Mergers until after the Effective Time, and
(iv) such Bank Merger Agreement will automatically terminate in the event of the
termination of this Agreement prior to the Closing.
Section 1.09 Alternate Structure. Buyer reasonably believes that the structure
described in this Article I will result in Buyer preserving as part of its tax
basis any premium paid to the holders of Seller Common Stock and will not result
in any tax on gain being due upon the subsequent Bank Merger. If Buyer comes to
the reasonable conclusion that its expectations regarding the tax treatment of
this structure will not be fulfilled, Buyer may elect, subject to the filing of
all necessary applications and the receipt of all required regulatory approvals,
to modify the structure of the transactions contemplated hereby, and the parties
shall enter into such alternative transactions so long as (i) there are no
adverse tax consequences to any of the stockholders, directors or officers of
Seller as a result of such modification, (ii) the Merger Consideration, the
treatment of stock options and restricted stock pursuant to Section 1.04, and
the obligations under Section 5.10 and Section 5.11 are not thereby changed or
reduced in amount because of such modification, (iii) such modification will not
be likely to materially delay or jeopardize receipt of any required regulatory
approvals, (iv) it does not result in any representation or warranty of any
party set forth in this Agreement becoming incorrect in any material respect,
and (v) it does not diminish the benefits of any officer, director or employee
of Seller pursuant to this Agreement or any separate agreement contemplated
hereby.
Article II. Stockholders' Equity at Closing
Section 2.01 Adjusted Stockholders' Equity. Seller warrants and represents that
the Adjusted Stockholders' Equity of Seller, consolidated with all of its
Subsidiaries (as defined in Section 3.03a)i)), at the close of business on the
day prior to the Effective Time shall be not less than $12,000,000. The Adjusted
Stockholders' Equity shall be determined according to generally accepted
accounting principles as they are applied to savings and loan associations and
savings and loan association holding companies, with assets and liabilities
valued, subject to the adjustments described below, as follows:
Section 2.02 Valuation of Assets. Seller's assets shall be valued in the
following manner:
a) Cash and Due. Cash items, cash-equivalent items, federal funds sold,
and items in the process of collection shall be valued at their book value on
Seller's books, including accrued interest not over 90 days past due;
b) Loans. Loans shall be valued at their book values, plus accrued but
unpaid interest which is not over 90 days past due, less any dealer reserve,
less any unearned discount, and less any contingency reserves including a loan
loss reserve greater than or equal to .40 % of gross loans;
c) Investment Securities. Investment securities classified by Seller
S&L as "Available for Sale" shall be valued at their fair market values,
determined by market quotations issued by a reputable source acceptable to both
parties no more than 10 days prior to the Effective Time, plus any accrued but
unpaid interest not over 90 days past due, and investment securities classified
by Seller S&L as "Held to Maturity" shall be valued at their book values on
Seller S&L's books, plus any accrued but unpaid interest not over 90 days past
due;
d) Fixed Assets. Real and personal property shall be valued at book
value on Seller S&L's books, net of all depreciation and any specific reserves;
and
e) Other Assets. Other assets shall be valued at their book values on
Seller S&L's books, less any applicable depreciation as shown on Seller S&L's
books, and less any contra-asset or liability accounts in the nature of
contingency reserves
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Agreement and Plan of Merger - Hardin Bancorp, Inc. October 25, 2000
existing on Seller S&L's books with respect to any such assets.
Section 2.03 Valuation of Liabilities.
a) Deposit Liabilities. Deposit liabilities shall be valued at their
book values on Seller S&L's books, plus all accrued but unpaid interest;
b) Expense Items. Subject to subsections (d) and (e) below, all items
of expense shall be accrued through the banking business day next preceding the
Effective Time, based on the most recently available billing, or based on
estimates if no related prior billing is available, and any expense estimates
agreed between the parties shall be considered final between the parties,
regardless of the amount of the actual billings, except in the event of a breach
of a representation or warranty contained herein; and
c) Other Liabilities. Subject to subsection (e) below, other
liabilities shall be valued at their book value on Seller S&L's books, or in the
case of contingent or unliquidated liabilities, at their reasonably estimated
future cost, determined by agreement of Seller and Buyer, reduced to present
value using an 8% discount rate.
d) Fees. The fees due or paid to Seller's or Seller S&L's advisors,
agents, attorneys, accountants, brokers or finders regarding this transaction
(excluding any fee paid to Trident Securities for financial advisory services)
shall be shown as a liability or expense in computing Adjusted Stockholder's
Equity.
e) Other Adjustments. In determining the Adjusted Stockholders' Equity
of Seller, the following matters shall be disregarded: (i) any adjustments to
assets, liabilities, reserves or accruals made pursuant to Section 5.02 hereof
shall not be shown unless such requested adjustment is in Seller's ordinary or
usual course of business as it existed prior to the execution of this Agreement,
(ii) any expenses, or estimated expenses, resulting from the early termination
or cancellation of any agreements of the Seller that occur at the Effective Time
under the terms of the agreement or that are made at the request of Buyer in
anticipation of the Effective Time, and (iii) there shall be no accrual for
payments to be made pursuant to Section 1.04 hereof or by reason of payments to
be made pursuant to the severance benefits, Director Compensation Agreements,
Officers' Compensation Agreements and other benefits specified by Section 5.10
(g), (h) and (i) hereof, to the extent that such payments exceed the normal
accrual for past service.
Article III. Representations and Warranties
Section 3.01 Disclosure Letters. Prior to the execution and delivery of this
Agreement, Seller and Buyer each shall have delivered to the other a letter
(each, its "Disclosure Letter") setting forth, among other things, facts,
circumstances and events the disclosure of which is required or appropriate in
relation to any or all of their respective representations and warranties (and
making specific reference to the section or subsection, as the case may be, of
this Agreement to which they relate); provided, that (a) no such fact,
circumstance or event is required to be set forth in the Disclosure Letter as an
exception to a representation or warranty if its absence is not reasonably
likely to result in the related representation or warranty being deemed untrue
or incorrect under the standards established by Section 3.02 except that Seller
shall use its best efforts to set forth in the Disclosure Letter any fact,
circumstance or event the disclosure of which is required to be set forth in
Seller's Disclosure Letter having a negative financial impact of $25,000 or
greater regardless of whether or not the standards established by Section 3.02
have been met, and (b) the mere inclusion of a fact, circumstance or event in a
Disclosure Letter shall not be deemed an admission by a party that such item
represents a material
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Agreement and Plan of Merger - Hardin Bancorp, Inc. October 25, 2000
exception or that such item is reasonably likely to result in a Material Adverse
Effect (as defined in Section 3.02b)).
Section 3.02 Standards.
a) No representation or warranty of Seller or Buyer contained in
Section 3.03 or Section 3.04, respectively, shall be deemed untrue or incorrect,
and no party hereto shall be deemed to have breached a representation or
warranty, on account of the existence of any fact, circumstance or event unless,
as a direct or indirect consequence of such fact, circumstance or event,
individually or taken together with all other facts, circumstances or events
inconsistent with any paragraph of Section 3.03 or Section 3.04, as applicable,
there is reasonably likely to exist a Material Adverse Effect. Seller's
representations, warranties and covenants contained in this Agreement shall not
be deemed to be untrue or breached as a result of effects arising solely from
actions taken pursuant to this Agreement or in compliance with a written request
of Buyer.
b) As used in this Agreement, the term "Material Adverse Effect" means
an effect which is material and adverse to the business, financial condition or
results of operations of Seller and its Subsidiaries (as defined in Section
3.03a)i)) or Buyer and its Subsidiaries, as the context may dictate, taken as a
whole (unless otherwise specifically stated in this Agreement); provided,
however, that any such effect resulting from any changes resulting from a change
in interest rates generally, any changes in laws, rules or regulations or GAAP
or regulatory accounting requirements or interpretations thereof that apply to
either Buyer and its Subsidiaries or Seller and its Subsidiaries, as the case
may be, or to similarly situated financial and/or depository institutions shall
not be considered in determining if a Material Adverse Effect has occurred.
c) For purposes of this Agreement, "knowledge" shall mean, with respect
to a party hereto, actual knowledge of any of the members of the Board of
Directors of that party, any officer of that party with the title ranking not
less than vice president, or any in-house general counsel of such party.
Section 3.03 Representations and Warranties of Seller.
Subject to Section 3.01 and Section 3.02, Seller represents and
warrants to Buyer that, except as disclosed in Seller's Disclosure Letter:
a) Organization.
i) Seller is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware and is
registered as a savings and loan holding company under the Home
Owners' Loan Act, as amended ("HOLA"). Hardin Federal Savings
Bank ("Seller S&L") is a stock savings association duly
organized and validly existing under the laws of the United
States of America and is a wholly-owned Subsidiary (as defined
below) of Seller. Each Subsidiary of Seller, other than Seller
S&L, is a corporation, limited liability company or partnership
duly organized, validly existing and in good standing under the
laws of its jurisdiction of incorporation or organization. Each
of Seller and its Subsidiaries has all requisite corporate power
and authority to own, lease and operate its properties and to
carry on its business as now being conducted. As used in this
Agreement, unless the context requires otherwise, the term
"Subsidiary" when used with respect to any party means any
corporation or other organization, whether incorporated or
unincorporated, which is consolidated with such party for
financial reporting purposes or which is owned or controlled,
directly or indirectly, by such party through a sufficient
number of shares or other evidence of ownership of such
corporation or other organization to have the power to elect a
majority of the board of directors or otherwise to control such
corporation or other organization.
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<PAGE>
ii) Seller and each of its Subsidiaries has the requisite corporate
power and authority and is duly qualified to do business and is
in good standing in each jurisdiction in which the nature of its
organization, business or the ownership or leasing of its
properties makes such qualification necessary.
iii)Seller's Disclosure Letter sets forth all of Seller's
Subsidiaries and all entities (whether corporations,
partnerships or similar organizations), including the
corresponding percentage ownership, in which Seller owns,
directly or indirectly, 5% or more of the ownership interests as
of the date of this Agreement and indicates for each of Seller's
Subsidiaries, as of such date, its jurisdiction of organization
and the jurisdiction(s) wherein it is qualified to do business.
All such Subsidiaries and ownership interests are in compliance
with all applicable laws, rules and regulations relating to
direct investments in equity ownership interests. Seller owns,
either directly or indirectly through Seller S&L, both the legal
title to and all beneficial interests in all of the outstanding
capital stock of each of its Subsidiaries. No Subsidiary of
Seller other than Seller S&L is an "insured depository
institution" as defined in the Federal Deposit Insurance Act, as
amended ("FDIA"), and the applicable regulations thereunder. All
of the shares of capital stock of Seller's Subsidiaries,
including Seller S&L, are fully paid, nonassessable and not
subject to any preemptive rights and are owned by Seller or a
Subsidiary of Seller free and clear of any claims, liens,
encumbrances or restrictions (other than those imposed by
applicable federal and state securities laws), and there are no
agreements or understandings with respect to the voting or
disposition of any such shares.
iv) The deposits of Seller S&L are insured by the Savings
Association Insurance Fund of the Federal Deposit Insurance
Corporation ("FDIC") to the extent provided in the FDIA.
b) Capital Structure.
i) The authorized capital stock of Seller consists of 3,500,000
shares of Seller Common Stock, par value $.01 per share, and
500,000 shares of preferred stock, par value $.01 per share. As
of the date of this Agreement (A) 1,058,000 shares of Seller
Common Stock had been issued, of which 731,453 shares were
issued and outstanding, (B) no shares of Seller preferred stock
were issued and outstanding, and (C) 326,547 shares of Seller
Common Stock were held by Seller in its treasury or by its
Subsidiaries. The authorized capital stock of Seller S&L
consists of 3,500,000 shares of common stock, par value $.01 per
share, and 500,000 shares of preferred stock. As of the date of
this Agreement, 1,058,000 shares of such common stock were
outstanding, no shares of such preferred stock were outstanding
and all outstanding shares of such common stock were, and as of
the Effective Time will be, owned both legally and beneficially
by Seller. All outstanding shares of capital stock of Seller are
duly authorized and validly issued, fully paid and nonassessable
and not subject to any preemptive rights and, with respect to
shares of Seller held by Seller in its treasury or by its
Subsidiaries and shares of Seller S&L, are free and clear of all
liens, claims, encumbrances or restrictions (other than those
imposed by applicable federal and state securities laws), and
there are no agreements or understandings with respect to the
voting or disposition of any such shares. Seller's Disclosure
Letter sets forth a complete and accurate list of all
outstanding options to purchase Seller Common Stock that have
been granted pursuant to the Seller Option Plan, including the
names of the optionees, dates of grant, exercise prices, dates
of vesting, dates of termination and shares subject to each
grant.
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Agreement and Plan of Merger - Hardin Bancorp, Inc. October 25, 2000
ii) No bonds, debentures, notes or other indebtedness having the
right to vote on any matters on which stockholders may vote of
Seller are issued or outstanding.
iii)As of the date of this Agreement, except for options granted
pursuant to the Seller Option Plan and shares of restricted
stock granted pursuant to the Seller Restricted Stock Plan,
neither Seller nor any of its Subsidiaries has or is bound by
any outstanding subscriptions, options, warrants, calls, rights,
convertible securities, commitments or agreements of any
character obligating Seller or any of its Subsidiaries to issue,
deliver or sell, or cause to be issued, delivered or sold, any
additional shares of capital stock of Seller or any of its
Subsidiaries or obligating Seller or any of its Subsidiaries to
grant, extend or enter into any such option, warrant, call,
right, convertible security, commitment or agreement. As of the
date hereof, there are no outstanding contractual obligations of
Seller or any of its Subsidiaries to repurchase, redeem or
otherwise acquire any shares of capital stock of Seller or any
of its Subsidiaries.
c) Authority. Seller has all requisite corporate power and authority to
enter into this Agreement, and, subject to approval of this Agreement by the
requisite vote of Seller's stockholders and receipt of all required regulatory
or governmental approvals, to consummate the transactions contemplated hereby.
The execution and delivery of this Agreement and, subject to the approval of
this Agreement by Seller's stockholders, the consummation of the transactions
contemplated hereby, have been duly authorized by all necessary corporate
actions on the part of Seller. This Agreement has been duly and validly executed
and delivered by Seller and assuming due execution and delivery by Buyer,
constitutes a valid and binding obligation of Seller, enforceable in accordance
with its terms, subject to applicable bankruptcy, insolvency and similar laws
affecting creditors' rights and remedies generally and subject, as to
enforceability, to general principles of equity, whether applied in a court of
law or a court of equity.
d) Stockholder Approval; Fairness Opinion. The affirmative vote of a
majority of the outstanding shares of Seller Common Stock entitled to vote on
this Agreement is the only vote of the stockholders of Seller required for
approval of this Agreement and the consummation of the Merger. Seller has
received the written opinion of Trident Securities to the effect that, as of the
date hereof, the Merger Consideration to be received by Seller's stockholders is
fair, from a financial point of view, to such stockholders.
e) No Violations; Consents. The execution, delivery and performance of
this Agreement by Seller does not, and the consummation of the transactions
contemplated hereby by the Seller will not, constitute (i) assuming receipt of
all Requisite Regulatory Approvals (as defined in Section 3.04d)) including the
consent of the Office of Thrift Supervision and requisite stockholder approvals,
a breach or violation of, or a default under, any law, rule or regulation or any
judgment, decree, order, governmental permit or license to which Seller or any
of its Subsidiaries (or any of their respective properties) is subject, (ii) a
breach or violation of, or a default under, the certificate of incorporation or
bylaws of Seller or the similar organizational documents of any of its
Subsidiaries or (iii) except as set forth in Seller's Disclosure Letter, a
breach or violation of, or a default under (or an event which, with due notice
or lapse of time or both, would constitute a default under), or result in the
termination of, accelerate the performance required by, or result in the
creation of any lien, pledge, security interest, charge or other encumbrance
upon any of the properties or assets of Seller or any of its Subsidiaries under,
any of the terms, conditions or provisions of any note, bond, indenture, deed of
trust, loan agreement or other agreement, instrument or obligation to which
Seller or any of its Subsidiaries is a party, or to which any of their
respective properties or assets may be subject. The consummation by Seller of
the transactions contemplated hereby will not require any approval, consent or
waiver under any such law, rule,
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Agreement and Plan of Merger - Hardin Bancorp, Inc. October 25, 2000
regulation, judgment, decree, order, governmental permit or license or the
approval, consent or waiver of any other governmental party, other than (u) as
required under the Securities Exchange Act of 1934, (v) the approval of the
holders of a majority of the outstanding shares of Seller Common Stock entitled
to vote thereon, (w) the approval of Seller as the sole stockholder of Seller
S&L, (x) the consent of the Office of Thrift Supervision ("OTS") (y) the consent
of any regulatory agency having jurisdiction over Buyer and (z) the issuance of
a Certificate of Merger by the Secretary of State of the State of Delaware.
f) Reports and Financial Statements.
i) Seller and each of its Subsidiaries have each timely filed all
material reports, registrations and statements, together with
any amendments required to be made with respect thereto, that
they were required to file with (a) the FDIC, (b) the OTS, (c)
the National Association of Securities Dealers, Inc. ("NASD"),
(d) the Missouri Department of Insurance, and (e) the Securities
and Exchange Commission ("SEC") (collectively, "Seller's
Reports") and, to Seller's knowledge, have paid all fees and
assessments due and payable in connection therewith. As of their
respective dates, none of Seller's Reports contained any untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the
statements made therein, in light of the circumstances under
which they were made, not misleading. All of Seller's Reports
filed with the SEC complied in all material respects with the
applicable requirements of the Securities Exchange Act of 1934,
as amended (the "Exchange Act") and the rules and regulations of
the SEC promulgated thereunder.
ii) Each of the financial statements of Seller included in Seller's
Reports complied as to form, as of their respective dates of
filing with the SEC, in all material respects with applicable
accounting requirements and with the published rules and
regulations of the SEC with respect thereto and have been
prepared in accordance with GAAP applied on a consistent basis
during the periods involved (except as may be indicated in the
notes thereto or, in the case of the unaudited financial
statements, as permitted by the SEC). Each of the consolidated
balance sheets contained or incorporated by reference in
Seller's Reports (including in each case any related notes and
schedules) and each of the consolidated statements of earnings,
consolidated statements of cash flows and consolidated
statements of changes in stockholders' equity, contained or
incorporated by reference in Seller's Reports (including in each
case any related notes and schedules) fairly presented (a) the
financial position of the entity or entities to which it relates
as of its date and (b) the results of operations, stockholders'
equity and cash flows, as the case may be, of the entity or
entities to which it relates for the periods set forth therein
(subject, in the case of unaudited interim statements, to normal
year-end adjustments that are not material in amount or effect).
g) Absence of Certain Changes or Events. Except as disclosed in
Seller's Reports filed on or prior to the date of this Agreement or in Seller's
Disclosure Letter, (i) Seller and its Subsidiaries have not incurred any
material liability, either accrued, alleged, contingent or disputed, except in
the ordinary course of their business consistent with past practice and except
for the engagement letter agreements with Trident Securities set forth in
Seller's Disclosure Letter, (ii) Seller and its Subsidiaries have conducted
their respective businesses only in the ordinary and usual course of such
businesses consistent with their past practices, (iii) to the knowledge of
Seller, there are no impending termination, expiration, or loss of contracts,
franchises, licenses, permits or other assets that, individually or in the
aggregate, are reasonably likely to have a Material Adverse Effect on Seller,
and (iv) there has not been any other event, change or
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Agreement and Plan of Merger - Hardin Bancorp, Inc. October 25, 2000
occurrence which has had, or is reasonably likely to have, individually or in
the aggregate, a Material Adverse Effect with respect to Seller and its
Subsidiaries.
h) Absence of Claims. Except as set forth in Seller's Disclosure
Letter, no litigation, controversy, claim, action, suit or other legal,
administrative or arbitration proceeding before any court, governmental agency
or arbitrator is pending against Seller or any of its Subsidiaries and, to the
knowledge of Seller, no such litigation, controversy, claim, action, suit or
proceeding has been threatened or asserted in either case which is reasonably
likely to have a Material Adverse Effect with respect to Seller or its
Subsidiaries, or the transactions contemplated by this Agreement, or upon the
ability of Seller to perform its obligations under this Agreement.
i) Absence of Regulatory Actions. Except as set forth in Seller's
Disclosure Letter, neither Seller nor any of its Subsidiaries has been a party
to any cease and desist order, written agreement or memorandum of understanding
with, or any commitment letter or similar undertaking to, or has been subject to
any action, proceeding, order or directive by, or has been a recipient of any
extraordinary supervisory letter from any federal or state governmental
authority charged with the supervision or regulation of depository institutions
or depository institution holding companies or engaged in the insurance of bank
and/or savings and loan deposits ("Government Regulators"), or has adopted any
board resolutions at the request of any Government Regulator, or has been
advised by any Government Regulator that it is contemplating issuing or
requesting (or is considering the appropriateness of issuing or requesting) any
such action, proceeding, order, directive, written agreement, memorandum of
understanding, extraordinary supervisory letter, commitment letter, board
resolutions or similar undertaking.
j) Taxes. All federal, state, local and foreign tax returns required to
be filed by or on behalf of Seller or any of its Subsidiaries have been timely
filed or requests for extensions have been timely filed and any such extension
shall have been granted and not have expired, and all such filed returns are
complete and accurate in all material respects. All taxes shown on such returns,
all taxes required to be shown on returns for which extensions have been granted
and all other taxes required to be paid by Seller or any of its Subsidiaries
have been paid in full or adequate provision has been made for any such taxes on
Seller's balance sheet (in accordance with GAAP). For purposes of this Section
3.03j), the term "taxes" shall include all income, franchise, gross receipts,
real and personal property, real property transfer and gains, wage and
employment taxes. As of the date of this Agreement, there is no audit
examination, deficiency assessment, tax investigation or refund litigation with
respect to any taxes of Seller or any of its Subsidiaries, and no claim has been
made by any authority in a jurisdiction where Seller or any of its Subsidiaries
do not file tax returns that Seller or any such Subsidiary is subject to
taxation in that jurisdiction. All taxes, interest, additions and penalties due
with respect to completed and settled examinations or concluded litigation
relating to Seller or any of its Subsidiaries have been paid in full or adequate
provision has been made for any such taxes on Seller's balance sheet (in
accordance with GAAP). Seller and each of its Subsidiaries have not executed an
extension or waiver of any statute of limitations on the assessment or
collection of any material tax due that is currently in effect. Seller and each
of its Subsidiaries has withheld and paid all taxes required to have been
withheld and paid in connection with amounts paid or owing to any employee,
independent contractor, creditor, stockholder or other third party, and Seller
and each of its Subsidiaries has timely complied with all applicable information
reporting requirements under Part III, Subchapter A of Chapter 61 of the IRC and
similar applicable state and local information reporting requirements. Adequate
provision for any taxes due or to become due for Seller or any of its
Subsidiaries for the period or periods reflected on Seller's most recent
financial statements has been made and is reflected on such Seller financial
statements. Deferred Taxes of Seller and its Subsidiaries have been provided for
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Agreement and Plan of Merger - Hardin Bancorp, Inc. October 25, 2000
in accordance with GAAP. To the knowledge of Seller, there is no item of
deferred taxable income which will become taxable due to the consummation of the
Merger or the Related Mergers that is reasonably likely to have a Material
Adverse Effect on Seller or its Subsidiaries, other than as disclosed in
Seller's Disclosure Letter.
k) Agreements.
i) Except (w) for arrangements made in the ordinary course of
business, (x) as set forth in Seller's Disclosure Letter, (y) as
disclosed in Seller's Reports filed on or prior to the date of
this Agreement, or (z) as contemplated by this Agreement, Seller
and its Subsidiaries are not bound by any material contract (as
defined in Item 601 (b)(10) of Regulation S-K promulgated by the
SEC) to be performed after the date hereof that has not been
filed with or incorporated by reference in Seller's Reports.
Except (x) as disclosed in Seller's Disclosure Letter, (y) as
disclosed in Seller's Reports filed on or prior to the date of
this Agreement, or (z) as contemplated by this Agreement,
neither Seller nor any of its Subsidiaries is a party to an oral
or written (A) consulting agreement (including data processing
and software programming contracts) not terminable on 60 days'
or less notice and providing for a payment or payments totaling
in excess of $5,000, (B) agreement with any present or former
director, officer or employee of Seller or any of its
Subsidiaries the benefits of which are contingent, or the terms
of which are materially altered, upon the occurrence of a
transaction involving Seller or any of its Subsidiaries of the
nature contemplated by this Agreement, (C) agreement with
respect to any employee or director of Seller or any of its
Subsidiaries providing any term of employment or compensation
guarantee extending for a period longer than 60 days, (D)
agreement or plan, including any stock option plan, phantom
stock or stock appreciation rights plan, restricted stock plan
or stock purchase plan, any of the benefits of which will be
increased, or the vesting or payment of the benefits of which
will be accelerated, by the occurrence of any of the
transactions contemplated by this Agreement or the value of any
of the benefits of which will be calculated on the basis of any
of the transactions contemplated by this Agreement or (E)
agreement containing covenants that limit the ability of Seller
or any of its Subsidiaries to compete in any line of business or
with any person, or that involve any restriction on the
geographic area in which, or method by which, Seller (including
any successor thereof) or any of its Subsidiaries may carry on
its business (other than as may be required by law or any
regulatory agency);
ii) Neither Seller nor any of its Subsidiaries is in default under
or is in violation of any provision of any note, bond,
indenture, mortgage, deed of trust, loan agreement, lease or
other agreement to which it is a party or by which it is bound
or to which any of its respective properties or assets is
subject; and,
iii)Seller and each of its Subsidiaries owns or possesses valid and
binding licenses and other rights to use without payment all
patents, copyrights, trade secrets, trade names, service marks
and trademarks used in its businesses, and neither Seller nor
any of its Subsidiaries has received any notice of conflict with
respect thereto that asserts the right of others. Each of Seller
and its Subsidiaries has performed all the obligations required
to be performed by it and are not in default under any contract,
agreement, arrangement or commitment relating to any of the
foregoing.
iv) Seller's Disclosure Letter contains a summary description of all
leases, commitments, contracts, licenses, maintenance agreements
and other agreements of Seller and its Subsidiaries involving a
liability or obligation of Seller in excess of $10,000 per
annum, and a true and complete list of all letters of credit,
guarantees, indemnity agreements and all commitments to loan or
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Agreement and Plan of Merger - Hardin Bancorp, Inc. October 25, 2000
discount or issue a letter of credit which would aggregate in
excess of $10,000 to any person, firm or corporation.
l) Labor Matters. Neither Seller nor any of its Subsidiaries is or, to
Seller's knowledge, has ever been a party to, or is or, to Seller's knowledge,
has ever been bound by, any collective bargaining agreement, contract or other
agreement or understanding with a labor union or labor organization with respect
to its employees, nor is Seller or any of its Subsidiaries the subject of any
proceeding asserting that it has committed an unfair labor practice or seeking
to compel it or any such Subsidiary to bargain with any labor organization as to
wages and conditions of employment nor, to Seller's knowledge, has any such
proceeding been threatened, nor, to Seller's knowledge, is there any strike,
other labor dispute or organizational effort involving Seller or any of its
Subsidiaries pending or threatened.
m) Employee Benefit Plans. Seller's Disclosure Letter contains a
complete and accurate list of all written and, to Seller's knowledge, oral
pension, retirement, stock option, stock purchase, stock ownership, savings,
stock appreciation right, profit sharing, deferred compensation, consulting,
bonus, group insurance, severance and other benefit plans, funds, contracts,
agreements and arrangements, including, but not limited to, "employee benefit
plans," as defined in Section 3(3) of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), incentive and welfare policies, contracts,
plans and arrangements and all trust agreements related thereto with respect to
any present or former directors, officers or other employees of Seller or any of
its Subsidiaries, and any cafeteria or section 125 plans, fringe benefit plans
including but not limited to automobiles, sabbaticals, clubs or any item
considered a fringe benefit within the meaning of IRC ss.32 (hereinafter
collectively referred to as the "Seller Employee Plans"). Seller warrants and
represents that Seller's Disclosure Letter sets forth a complete and accurate
list of all Seller Restricted Stock granted pursuant to the Seller Recognition
and Retention Plan, including the names of the grantees, dates of grant, dates
of vesting, and shares subject to each grant. All of the Seller Employee Plans
comply in all material respects with all applicable requirements of ERISA, the
IRC and other applicable laws; with respect to the Seller Employee Plans, to the
knowledge of Seller, no event has occurred that would subject Seller or any of
its Subsidiaries to a material liability under ERISA, the IRC or any other
applicable law; there has occurred no "prohibited transaction" (as defined in
Section 406 of ERISA or Section 4975 of the IRC) which is reasonably likely to
result in the imposition of any penalties or taxes under Section 502(i) of ERISA
or Section 4975 of the IRC upon Seller or any of its Subsidiaries; and all
required contributions to the Seller Employee Plans through the date hereof have
been made. Neither Seller nor any of its Subsidiaries has provided, or is
required to provide, security to any Seller pension plan or to any
single-employer plan of an ERISA Affiliate (as defined under Section 4001(b)(l)
of ERISA or Section 414 of the IRC) pursuant to Section 401(a)(29) of the IRC.
Except as disclosed on Seller's Disclosure Letter, neither Seller, its
Subsidiaries, nor any ERISA Affiliate has contributed to any "multiemployer
plan," as defined in Section 3(37) of ERISA, on or after September 26, 1980.
Since February 1, 2000, no contributions have been made to such multiemployer
plan and no additional contributions are due under any such plan. Neither Seller
nor its Subsidiaries maintains any plan that is subject to Title IV of ERISA,
and neither Seller nor its Subsidiaries has terminated any such plan within the
past five (5) years. Each Seller Employee Plan that is an "employee pension
benefit plan" (as defined in Section 3(2) of ERISA) and which is intended to be
qualified under Section 401(a) of the IRC (a "Seller Qualified Plan") has
received a favorable determination letter from the Internal Revenue Service
("IRS"), and Seller and its Subsidiaries are not aware of any circumstances
likely to result in revocation of any such favorable determination letter. There
is no pending or, to Seller's knowledge, threatened litigation, administrative
action or proceeding relating to any Seller Employee Plan. There has been no
announcement or commitment by Seller or any of its Subsidiaries to create an
additional Seller Employee Plan, or to amend any Seller Employee Plan, except
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Agreement and Plan of Merger - Hardin Bancorp, Inc. October 25, 2000
for amendments required by applicable law which do not materially increase the
cost of such Seller Employee Plan or as otherwise contemplated by this
Agreement; and, except as specifically identified in Seller's Disclosure Letter,
Seller and its Subsidiaries do not have any obligations for post-retirement or
post-employment benefits under any Seller Employee Plan that cannot be amended
or terminated upon 60 days' notice or less without incurring any liability
thereunder, except for coverage required by Part 6 of Title I of ERISA or
Section 4980B of the IRC, or similar state laws, the cost of which is borne by
the insured individuals. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby will not result in any
payment or series of payments by Buyer, Seller or any of their Subsidiaries to
any person which is an "excess parachute payment" (as defined in Section 280G of
the IRC). All payments made by Buyer, Seller or any of their Subsidiaries to any
employee under a Seller Employee Plan will be fully tax-deductible as employment
compensation to Buyer, Seller, or one of their Subsidiaries. To the best
knowledge of Seller, no breach of a fiduciary duty under ERISA ss.404 or ss.405
has occurred and with respect to which any outstanding liability to any
participant or excise tax or liability exists or will exist as of the Effective
Time with respect to any of the Seller Employee Plans. Each of the Seller
Employee Plans which is a group health plan within the meaning of IRC
ss.5000(b)(1) is in compliance with the continuation of health care coverage
requirements contained in IRC ss.4980B and ERISA ss.601 et seq. A list of
participants or beneficiaries who have elected continuation coverage in
accordance with such laws is provided in Seller's Disclosure Letter. With
respect to each Seller Employee Plan, Seller has supplied to Buyer a true and
correct copy of (A) the annual report on the applicable form of the Form 5500
series filed with the IRS for the three most recent plan years, if required to
be filed, (B) such Seller Employee Plan, including amendments thereto, (C) each
trust agreement, insurance contract or other funding arrangement relating to
such Seller Employee Plan, including amendments thereto, (D) the most recent
summary plan description and summary of material modifications thereto for such
Seller Employee Plan, if the Seller Employee Plan is subject to Title I of
ERISA, (E) the most recent actuarial report or valuation if such Seller Employee
Plan is a Seller pension plan and any subsequent changes to the actuarial
assumptions contained therein, and (F) the most recent determination letter
issued by the IRS if such Seller Employee Plan is a Seller Qualified Plan. With
respect to Seller's ESOP, Seller has supplied Buyer a true and correct copy of
(A) the latest financial statement of the ESOP including a list of assets, (B) a
schedule of stock purchases by the ESOP, including seller, valuation and number
of shares, (C) a schedule of stock contributions made to the ESOP, (D) a list of
the most recent ESOP distributions including participant name and amount and (E)
a schedule of the most recent contribution allocation including participant
name, compensation and share of contribution.
n) Title to Assets. Seller's Disclosure Letter contains a complete and
accurate list of all real property owned or leased by Seller or any of its
Subsidiaries, including all properties of Seller or any of its Subsidiaries
classified as "Real Estate Owned" or words of similar import (the "Real
Property") and except as disclosed in Seller's Disclosure Letter, title to all
of such real properties is insured for an amount not less than the book value of
all such real properties on Seller's or its Subsidiaries' books under an owner's
title insurance policy issued by a title insurance company authorized to do
business in the state where the property is located. Except as disclosed in
Seller's Disclosure Letter, Seller and each of its Subsidiaries have good and
marketable title to their respective properties and assets (including any
intellectual property asset such as any trademark, service mark, trade name or
copyright) and property acquired in a judicial foreclosure proceeding or by way
of a deed in lieu of foreclosure or similar transfer in each case free and clear
of any material liens, security interests, encumbrances, mortgages, pledges,
restrictions, charges or rights or interests of others, except pledges to secure
deposits or Federal Home Loan Bank advances and other liens incurred in the
ordinary course of business. Each lease for real
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Agreement and Plan of Merger - Hardin Bancorp, Inc. October 25, 2000
or personal property pursuant to which Seller or any of its Subsidiaries is
lessee or lessor is valid and in full force and effect and neither Seller nor
any of its Subsidiaries, nor any other party to any such lease is in default or
in violation of any provisions of any such lease. All material tangible
properties of Seller and each of its Subsidiaries are in a good state of
maintenance and repair (normal wear and tear excepted), conform with all
applicable ordinances, regulations and zoning laws in all material respects, are
considered by Seller to be reasonably adequate for the current business of
Seller and its Subsidiaries and, except as disclosed in Seller's Disclosure
Letter, improvements on real property owned or leased by Seller are located
wholly within the boundaries of the property owned or leased by Seller or its
Subsidiaries. There are no unpaid charges, debts, liabilities, claims or
obligations arising from the construction, ownership or operation of the banking
premises of Seller S&L which would give rise to any mechanics' liens against any
such real estate or any part thereof, or for which Seller or Seller S&L would be
responsible, except for i) liens imposed by law and incurred in the ordinary
course of business for obligations not yet due to carriers, warehousemen,
laborers, materialmen and the like, but only to the extent the obligation giving
rise to the lien is included as a liability on Seller's books and records and
ii) such minor encumbrances, if any, as do not materially detract from the value
of, or materially interfere with the present use of, such properties, and which
minor encumbrances do not render the title to such property unmarketable.
o) Compliance with Laws. Seller and each of its Subsidiaries has all
permits, licenses, certificates of authority, orders and approvals of and has
made all filings, applications and registrations with, all federal, state, local
and foreign governmental or regulatory bodies (each, a "Governmental Entity")
that are required in order to operate its material assets and to permit it to
carry on its business as it is presently conducted; all such permits, licenses,
certificates of authority, orders and approvals are in full force and effect,
and, to the knowledge of Seller, no suspension or cancellation of any of them is
threatened. The corporate affairs of Seller are not being conducted in violation
of any law, ordinance, regulation, order, writ, rule, decree or approval of any
Governmental Entity. Neither Seller nor any of its Subsidiaries is in material
violation of, is, to the knowledge of Seller, under investigation with respect
to any material violation of, or has been given notice or been charged with any
material violation of, any law, ordinance, regulation, order, writ, rule, decree
or condition to approval of any Governmental Entity.
p) Fees. Other than financial advisory services performed for Seller by
Trident Securities, neither Seller nor any of its Subsidiaries, nor any of their
respective officers, directors, employees or agents, has employed any broker or
finder or incurred any liability for any financial advisory' fees, brokerage
fees, commissions or finder's fees, and no broker or finder has acted directly
or indirectly for Seller or any of its Subsidiaries in connection with this
Agreement or the transactions contemplated hereby. Seller has provided Buyer
with a true and correct copy of the contract between Seller and Trident
Securities.
q) Environmental Matters. There is no suit, claim, action, demand,
executive or administrative order, directive, investigation or proceeding
pending or, to the knowledge of Seller, threatened before any court,
governmental agency or board or other forum against Seller or any of its
Subsidiaries for alleged noncompliance (including by any predecessor) with, or
liability under, any Environmental Law (as defined below) or relating to the
presence of or release into the environment of any Hazardous Material (as
defined below), whether or not occurring at or on a site owned, leased or
operated by it or any of its Subsidiaries. To Seller's knowledge, the properties
currently owned or operated by Seller or any of its Subsidiaries (including,
without limitation, soil, groundwater or surface water on, under or adjacent to
the properties, and buildings thereon) are not contaminated with and do not
otherwise contain any
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Agreement and Plan of Merger - Hardin Bancorp, Inc. October 25, 2000
Hazardous Material other than as permitted under applicable Environmental Law.
Neither Seller nor any of its Subsidiaries has received any notice, demand
letter, executive or administrative order, directive, request or other
communication (written or oral) for information from any federal, state, local
or foreign governmental entity or any third party indicating that it may be in
violation of, or liable under, any Environmental Law. To Seller's knowledge,
there are no underground storage tanks on, in or under any properties owned or
operated by Seller or any of its Subsidiaries and no underground storage tanks
have been closed or removed from any properties owned or operated by Seller or
any of its Subsidiaries. To Seller's knowledge, during the period of Seller's or
any of its Subsidiaries' ownership or operation of any of their respective
current properties, there has been no contamination by or release of Hazardous
Materials in, on, under or affecting such properties. To Seller's knowledge,
prior to the period of Seller's or any of its Subsidiaries' ownership or
operation of any of their respective current properties, there was no
contamination by or release of Hazardous Material in, on, under or affecting
such properties.
"Environmental Law" means (i) any federal, state or local law, statute,
ordinance, rule, regulation, code, license, permit, authorization, approval,
consent, legal doctrine, order, directive, executive or administrative order,
judgment, decree, injunction, legal requirement or agreement with any
Governmental Entity relating to (A) the protection, preservation or restoration
of the environment (which includes, without limitation, air, water vapor,
surface water, groundwater, drinking water supply, structures, soil, surface
land, subsurface land, plant and animal life or any other natural resource), or
to human health or safety as it relates to Hazardous Materials, or (B) the
exposure to, or the use, storage, recycling, treatment, generation,
transportation, processing, handling, labeling, production, release or disposal
of, Hazardous Materials, in each case as amended and as now in effect,
including, without limitation, (i) the Federal Comprehensive Environmental
Response, Compensation and Liability Act of 1980, the Superfund Amendments and
Reauthorization Act of 1986, the Federal Water Pollution Control Act of 1972,
the Federal Clean Air Act, the Federal Clean Water Act, the Federal Resource
Conservation and Recovery Act of 1976 (including, but not limited to, the
Hazardous and Solid Waste Amendments thereto and Subtitle I relating to
underground storage tanks), the Federal Solid Waste Disposal and the Federal
Toxic Substances Control Act, the Federal Insecticide, Fungicide and Rodenticide
Act, the Federal Occupational Safety and Health Act of 1970 as it relates to
Hazardous Materials, the Federal Hazardous Substances Transportation Act, the
Emergency Planning and Community Right-To-Know Act, the Safe Drinking Water Act,
the Endangered Species Act, the National Environmental Policy Act, the Rivers
and Harbors Appropriation Act or any so-called "Superfund" or "Superlien" law,
each as amended and as now or hereafter in effect, and (ii) any common law or
equitable doctrine (including, without limitation, injunctive relief and tort
doctrines such as negligence, nuisance, trespass and strict liability) that may
impose liability or obligations for injuries or damages due to, or threatened as
a result of the presence of or exposure to any Hazardous Material.
"Hazardous Material" means any substance (whether solid, liquid or gas)
which is or could be detrimental to the environment, currently or hereafter
listed, defined, designated or classified as hazardous, toxic, radioactive or
dangerous, or otherwise regulated under any Environmental Law, whether by type
or by quantity, including any substance containing any such substance as a
component. Hazardous Material includes, without limitation, any toxic waste,
pollutant, contaminant, hazardous substance, toxic substance, hazardous waste,
special waste, industrial substance, oil or petroleum, or any derivative or
by-product thereof, radon, radioactive material, asbestos, asbestos-containing
material, urea formaldehyde foam insulation, lead and polychlorinated biphenyl.
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Agreement and Plan of Merger - Hardin Bancorp, Inc. October 25, 2000
r) Loan Documents; Collateral; Commitments. With respect to each loan
owned by Seller or its Subsidiaries in whole or in part, (A) the note and the
related security documents are each legal, valid and binding obligations of the
maker or obligor thereof, enforceable against such maker or obligor in
accordance with their terms, without valid set-offs or counterclaims and (B) the
note and the related security documents, copies of which are included in the
loan files, are true and correct copies of the documents they purport to be and
have not been suspended, amended, modified, canceled or otherwise changed except
as otherwise disclosed by documents in the applicable loan file. All notes,
evidences of indebtedness and agreements for the payment of money and all
related documents, instruments, papers and other security agreements of Seller
S&L applicable thereto, are bona fide, are genuine as to signatures of all
makers, endorsers and guarantors, and were given for valid consideration. All
collateral securing such indebtedness existed at the disbursement of the funds
which created the indebtedness. Except as may be disclosed in the books and
records of Seller S&L relating to its loans, Seller S&L has made no affirmative
or negative oral or written commitments which would materially impair the
enforcement of any of Seller S&L's loans.
s) Deposits. None of the deposits of Seller or any of its Subsidiaries
is a "brokered" deposit.
t) Anti-takeover Provisions Inapplicable. Seller and its Subsidiaries
have taken all actions required to exempt Seller, Buyer, Acquisition Sub, the
Agreement and the Merger from Section 203 of the DGCL.
u) Charter Provisions. Seller and its Subsidiaries have taken all
action so that the entering into of this Agreement and the consummation of the
Merger and the other transactions contemplated by this Agreement do not and will
not result in the grant of any rights to any person under the Certificate of
Incorporation, bylaws, or other governing instruments of Seller or any of its
Subsidiaries or restrict or impair the ability of Buyer or any of its
Subsidiaries or Affiliates to vote, or otherwise to exercise the rights of a
stockholder with respect to, shares of Seller or any of its Subsidiaries that
may be directly or indirectly acquired or controlled by it.
v) Material Interests of Certain Persons; Transactions with Insiders.
Except as set forth in Seller's Disclosure Letter, no officer or director of
Seller, or any "associate" (as such term is defined in Rule 12b-2 promulgated
under the Exchange Act) of any such officer or director, has any material
interest in any material contract or property (real or personal), tangible or
intangible, used in or pertaining to the business of Seller or any of its
Subsidiaries. Seller's Disclosure Letter describes all transactions since April
1, 1997 in which any officer, director, 5% stockholder or employee of Seller or
Seller S&L, or any Affiliate or Subsidiary thereof, directly or indirectly, has
borrowed from, loaned to, supplied or provided goods or services to, purchased
assets from, sold assets to, or done business in any manner with Seller or
Seller S&L or is a party to any agreement with Seller or Seller S&L provided
that with respect to employees, Seller shall not be required to disclose any
deposit relationships or loans that have paid off and are not currently
outstanding on the date hereof.
w) Insurance. Seller's Disclosure Letter contains a complete list of
all insurance policies of Seller and its Subsidiaries presently in effect. In
the opinion of Seller's management, Seller and its Subsidiaries are presently
insured for amounts deemed reasonable by management against such risks as
companies engaged in a similar business would, in accordance with good business
practice, customarily be insured. All of the insurance policies and bonds
maintained by Seller and its Subsidiaries are in full force and effect, Seller
and its Subsidiaries are not in default thereunder and all material claims
thereunder have been filed in due and timely fashion. Seller and its
Subsidiaries have received no notice from any insurance carrier that (i) any
insurance will be canceled or that coverage thereunder will be reduced or
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Agreement and Plan of Merger - Hardin Bancorp, Inc. October 25, 2000
eliminated, or (ii) premium costs with respect to any policies of insurance will
be substantially increased.
x) Investment Securities; Derivatives.
i) Except for investments in Federal Home Loan Bank ("FHLB") Stock,
pledges to secure FHLB borrowings, and reverse repurchase
agreements entered into in arms-length transactions pursuant to
normal commercial terms and conditions and entered into in the
ordinary course of business and restrictions that exist for
securities to be classified as "held to maturity," none of the
investment securities held by Seller or any of its Subsidiaries
as of the date of this Agreement is, or will be at Closing,
subject to any restriction (contractual or statutory) other than
applicable securities laws, that would materially impair the
ability of the entity holding such investment freely to dispose
of such investment at any time.
ii) Except (x) as set forth in Seller's Disclosure Letter, (y) as
disclosed in Seller's Reports filed on or prior to the date of
this Agreement, or (z) for adjustable-rate mortgage loans and
adjustable-rate advances, neither Seller nor any of its
Subsidiaries is a party to or has agreed to enter into an
exchange-traded or over-the-counter equity, interest rate,
foreign exchange or other swap, forward, future, option, cap,
floor or collar or any other contract that is a derivative
contract (including various combinations thereof) or owns
securities that (A) are referred to generically as "structured
notes," "high risk mortgage derivatives," "capped floating rate
notes" or "capped floating rate mortgage derivatives" or (B) are
likely to have changes in value as a result of interest or
exchange rate changes that significantly exceed normal changes
in value attributable to interest or exchange rate changes.
y) Credit Card Issuing Agreement. Neither Seller nor Seller S&L has any
credit card agreement which would prevent Buyer from soliciting Seller S&L's
customers to accept a credit card issued by or on behalf of Buyer or an
Affiliate of Buyer.
z) Indemnification. Except (i) as provided in the certificate of
incorporation or bylaws of Seller and the similar governing documents of its
Subsidiaries, or (ii) as set forth in Seller's Disclosure Letter, neither Seller
nor any Subsidiary is a party to any indemnification agreement with any of its
present or former directors, officers, employees, agents or other persons who
serve or served in any other capacity with any other enterprise at the request
of Seller and, to the knowledge of Seller, there are no claims for which any
such person would be entitled to indemnification under the organization
certificate of incorporation or bylaws of Seller or the similar governing
documents of any of its Subsidiaries, under any applicable law or regulation or
under any indemnification agreement.
aa) Books and Records. The books and records of Seller and its
Subsidiaries on a consolidated basis have been, and are being, maintained in
accordance with applicable legal and accounting requirements and reflect in all
material respects the substance of events and transactions that should be
included therein.
bb) Corporate Documents. Complete and correct copies of the certificate
of incorporation, bylaws and similar governing documents of Seller and each of
Seller's Subsidiaries, as in effect as of the date of this Agreement, have
previously been delivered to Buyer. The minute books of Seller and each of
Seller's Subsidiaries constitute a complete and correct record of all actions
taken by their respective boards of directors (and each committee thereof) and
their stockholders.
cc) Community Reinvestment Act Compliance. Seller S&L is in material
compliance with the applicable provisions of the Community Reinvestment Act, as
amended (the "CRA"), and the regulations promulgated thereunder, and, as of its
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Agreement and Plan of Merger - Hardin Bancorp, Inc. October 25, 2000
most recent CRA examination, Seller S&L has a CRA rating of satisfactory or
better. To Seller's knowledge, there is no fact or circumstance or set of facts
or circumstances that would cause Seller S&L to fail to comply with such
provisions or cause the CRA rating of Seller S&L to fall below satisfactory.
dd) Conduct of Business Since Due Diligence. Except as set forth in
Seller's Disclosure Letter, since the date of information provided to Buyer
during Buyer's due diligence through the date of this Agreement:
i) Ordinary Course. The business and affairs of Seller and Seller
S&L have been conducted and carried on only in the ordinary and
regular course consistent with its past practices.
ii) Charter and Bylaws. There has been no change, amendment or other
modification made in the Certificate of Incorporation, Charter
or Bylaws of Seller or Seller S&L.
iii)Employment Benefits. There has been no increase or other change
made in the rate or nature of compensation, including wages,
salaries, bonuses and benefits under Seller's employee plans,
which has been paid, or will be paid or payable by Seller or
Seller S&L to any officer, employee, stockholder or director of
Seller S&L, other than customary year-end increases and bonuses
consistent with Seller or Seller S&L's past practices. No
additional stock options or rights to receive any stock have
been granted or allocated to any employees.
iv) Casualty Loss. Seller S&L has not sustained or incurred any loss
or damage, whether or not insured against, on account of fire,
flood, accident or other calamity which has materially
interfered with or affected, or may materially interfere with or
affect, the operation of its properties, assets or liabilities
of Seller S&L.
v) Accounting Methods. There has been no material change in any
method of accounting or accounting practice of Seller or Seller
S&L.
vi) Waiver of Rights. Seller S&L has not waived any rights, the
result of which, individually or in the aggregate, would have a
Material Adverse Effect on its financial condition.
Section 3.04 Representations and Warranties of Buyer. Subject to Section 3.01
and Section 3.02, Buyer represents and warrants to Seller that:
a) Organization.
i) Buyer is a corporation duly organized, validly existing and in
good standing under the laws of the State of Missouri and is
registered as a bank holding company under the Bank Holding
Company Act, as amended ("BHCA"). Bank Midwest, N.A. ("Buyer
Bank") is a bank duly organized, validly existing and in good
standing under the laws of the United States of America and is a
Subsidiary of Buyer. Each Subsidiary of Buyer other than Buyer
Bank is a national bank or corporation, duly organized, validly
existing and in good standing under the laws of its jurisdiction
of incorporation or organization. Each of Buyer and its
Subsidiaries has all requisite corporate power and authority to
own, lease and operate its properties and to carry on its
business as now being conducted.
ii) Acquisition Sub will be a corporation, duly organized, validly
existing and in good standing under the laws of Delaware, all of
the outstanding capital stock of which will be prior to the
Effective Time, owned directly or indirectly by Buyer free and
clear of any lien, charge or other encumbrance. From and after
its incorporation, Acquisition Sub will not engage in any
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Agreement and Plan of Merger - Hardin Bancorp, Inc. October 25, 2000
activities other than in connection with or as contemplated by
this Agreement.
iii)Buyer and each of its Subsidiaries has the requisite corporate
power and authority and is duly qualified to do business and is
in good standing in each jurisdiction in which the nature of its
business or the ownership or leasing of its properties makes
such qualification necessary.
b) Authority. Buyer has all requisite corporate power and authority to
enter into this Agreement and, subject to receipt of all Requisite Regulatory
Approvals (as defined in Section 3.04d) below), to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly authorized
by the Board of Directors of Buyer. Acquisition Sub will have prior to the
Effective Time, all corporate power and authority to consummate the transactions
contemplated hereunder and carry out all of its obligations with respect to such
transactions. The consummation of the transactions contemplated hereby will have
been prior to the Closing, duly and validly authorized by all necessary
corporate action in respect thereof on the part of Acquisition Sub. This
Agreement has been duly and validly executed and delivered by Buyer and
constitutes a valid and binding obligation of Buyer, enforceable in accordance
with its terms, subject to applicable bankruptcy, insolvency and similar laws
affecting creditors' rights and remedies generally and subject, as to
enforceability, to general principles of equity, whether applied in a court of
law or a court of equity.
c) Stockholder Approval. The execution, delivery and performance of
this Agreement and consummation of the transactions contemplated herein,
including the Merger, have been duly and validly authorized by all necessary
corporate action in respect thereof on the part of Buyer, and no other corporate
proceedings on the part of Buyer are necessary to complete the transactions
contemplated hereby. Buyer shall cause Acquisition Sub to take all necessary
corporate actions to complete the transactions contemplated hereby.
d) No Violations; Consents. The execution, delivery and performance of
this Agreement by Buyer or Acquisition Sub does not, and the consummation of the
transactions contemplated hereby will not, constitute (i) assuming receipt of
all Requisite Regulatory Approvals, a breach or violation of, or a default
under, any law, rule or regulation or any judgment, decree, order, governmental
permit or license to which Buyer or any of its Subsidiaries (or any of their
respective properties) is subject, (ii) a breach or violation of, or a default
under, the certificate of incorporation or bylaws of Buyer or the similar
organizational documents of any of its Subsidiaries or (iii) a breach or
violation of, or a default under (or an event which, with due notice or lapse of
time or both, would constitute a default under), or result in the termination
of, accelerate the performance required by, or result in the creation of any
lien, pledge, security interest, charge or other encumbrance upon any of the
properties or assets of Buyer or any of its Subsidiaries under, any of the
terms, conditions or provisions of any note, bond, indenture, deed of trust,
loan agreement or other agreement, instrument or obligation to which Buyer or
any of its Subsidiaries is a party, or to which any of their respective
properties or assets may be subject. The consummation by Buyer of the
transactions contemplated hereby will not require any approval, consent or
waiver under any such law, rule, regulation, judgment, decree, order,
governmental permit or license or the approval, consent or waiver of any other
party to any such agreement, or instrument, other than (x) the approval of Buyer
as the sole shareholder of Acquisition Sub and (y) the approval or waiver of the
Board of Governors of the Federal Reserve System ("FRB') under the BHCA and (z)
approval of the Office of the Comptroller of the Currency ("OCC") of the Related
Mergers (collectively, the "Requisite Regulatory Approvals") except that the
Merger shall not become effective until a Certificate of Merger has been filed
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Agreement and Plan of Merger - Hardin Bancorp, Inc. October 25, 2000
with the Secretary of State of the State of Delaware in accordance with Section
9.01 of this Agreement.
e) Reports and Financial Statements.
i) Buyer and each of its Subsidiaries have each timely filed all
material reports and financial statements, together with any
amendments required to be made with respect thereto, that they
were required to file with (a) the FDIC, (b) the FRB, and (c)
the Comptroller of the Currency, (collectively, "Buyer's
Reports") and, to Buyer's knowledge, have paid all taxes and
assessments due and payable in connection therewith. As of their
respective dates, none of Buyer's Reports contained any untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the
statements made therein, in light of the circumstances under
which they were made, not misleading.
ii) Each of the financial statements of Buyer included in Buyer's
Reports has been prepared in all material respects in accordance
with GAAP applied on a consistent basis during the periods
involved (except as may be indicated in the notes thereto or, in
the case of the unaudited financial statements, as permitted by
appropriate regulatory authorities). Each of the consolidated
statements of condition contained or incorporated by reference
in Buyer's Reports (including in each case any related notes and
schedules) and each of the consolidated statements of
operations, contained or incorporated by reference in Buyer's
Reports (including in each case any related notes and schedules)
fairly presented (A) the financial position of the entity or
entities to which it relates as of its date and (B) the results
of operations, stockholders' equity and cash flows, as the case
may be, of the entity or entities to which it relates for the
periods set forth therein (subject in the case of unaudited
interim statements, to normal year-end adjustments that are not
material in amount or effect), in each case in accordance with
GAAP, except as may be noted therein.
f) Absence of Certain Changes or Events. Except as disclosed in Buyer's
Reports filed on or prior to the date of this Agreement, no event has occurred
or circumstances arisen which has had or might reasonably be expected to have a
Material Adverse Effect with respect to Buyer and its Subsidiaries.
g) Absence of Claims. No litigation, proceeding, controversy, claim,
action or suit or other legal administrative or arbitration proceeding before
any court, governmental agency or arbitrator is pending or has been threatened
against Buyer or any of its Subsidiaries that would reasonably be expected to
prevent or adversely affect or which seeks to prohibit the consummation of the
transactions contemplated by this Agreement or which would have a Material
Adverse Effect with respect to Buyer and its Subsidiaries taken as a whole.
h) Absence of Regulatory Actions. Neither Buyer nor any of its
Subsidiaries is a party to any cease and desist order, written agreement or
memorandum of understanding with, or any commitment letter or similar written
undertaking to, or is subject to any action, proceeding, order or directive by,
or is a recipient of any extraordinary supervisory letter from any Government
Regulator, or has adopted any board resolutions at the request of any Government
Regulator, nor has it been advised by any Governmental Regulator that it is
contemplating issuing or requesting (or is considering the appropriateness of
issuing or requesting) any such action, proceeding, order, directive, written
agreement, memorandum of understanding, extraordinary supervisory letter,
commitment letter, board resolutions or similar written undertaking.
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Agreement and Plan of Merger - Hardin Bancorp, Inc. October 25, 2000
i) Compliance with Laws. Buyer and each of its Subsidiaries have all
permits, licenses, certificates of authority, orders and approvals of, and have
made all filings, applications and registrations with, all Governmental Entities
that are required in order to permit them to carry on their business as it is
presently conducted; all such permits, licenses, certificates of authority,
orders and approvals are in full force and effect, and to the best knowledge of
Buyer no suspension or cancellation of any of them is threatened. The corporate
affairs of Buyer are not being conducted in violation of any law, ordinance,
regulation, order, writ, rule, decree or approval of any Governmental Entity.
Neither Buyer nor any of its Subsidiaries is in material violation of, is, to
the knowledge of Buyer, under investigation with respect to any material
violation of, or has been given notice or been charged with any material
violation of, any law, ordinance, regulation, order, writ, rule, decree or
condition to approval of any Governmental Entity.
j) Fees. Neither Buyer nor any of its Subsidiaries, nor any of their
respective officers, directors, employees or agents, has employed any broker or
finder or incurred any liability for any financial advisory fees, brokerage
fees, commissions or finder's fees, and no broker or finder has acted directly
or indirectly for Buyer or any of its Subsidiaries in connection with this
Agreement or the transactions contemplated hereby.
k) Availability of Funds. Buyer on the date hereof and at the Effective
Time will have, all funds necessary to consummate the Merger and fulfill its
obligations under the terms of this Agreement, including without limitation, its
obligation to pay the aggregate Merger Consideration and to consummate in a
timely manner the transactions contemplated by this Agreement.
l) Certain Circumstances. Buyer knows of no facts or circumstances that
would delay, impede or otherwise adversely affect its ability to promptly secure
all necessary regulatory and other approvals and consents to the Merger and the
transactions contemplated by this Agreement and to consummate the Merger
promptly. As of the date of this Agreement, Buyer believes that, in light of its
financial condition, it should be able to obtain all such approvals, without the
imposition of any burdensome term or condition.
m) Community Reinvestment Act Compliance. Buyer and its banking Subsidiaries are
in material compliance with the applicable provisions of the CRA and the
regulations promulgated thereunder, and, as of their most recent CRA
examinations, Buyer and its banking Subsidiaries have a CRA rating of
satisfactory or better. To Buyer's knowledge, there is no fact or circumstance
or set of facts or circumstances that would cause Buyer and its banking
Subsidiaries to fall below satisfactory.
Article IV. Conduct Pending the Merger
Section 4.01 Conduct of Seller's Business Prior to the Effective Time. Except as
contemplated by this Agreement, during the period from the date of this
Agreement to the Effective Time, Seller shall, and shall cause its Subsidiaries
to, use its commercially reasonable efforts to (i) conduct its business in the
regular, ordinary and usual course consistent with past practice and in
accordance with sound banking practices, (ii) maintain and preserve intact its
business organization, properties, leases, goodwill of its customers, and
advantageous business relationships and retain the services of its officers and
key employees, (iii) take no action which would adversely affect or delay the
ability of Seller or Buyer to perform their respective covenants and agreements
on a timely basis under this Agreement, and (iv) take no action that results in
or is reasonably likely to have a Material Adverse Effect on Seller. Without
limiting the foregoing covenants, unless the prior written consent of Buyer
shall have been obtained, which consent shall not be unreasonably withheld, and
except as otherwise expressly contemplated in this Agreement, from the date
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Agreement and Plan of Merger - Hardin Bancorp, Inc. October 25, 2000
hereof until the Effective Time, Seller shall, and shall cause each of its
Subsidiaries to:
a) Board Observer. Permit, at any time after the execution of this
Agreement, a representative of Buyer to attend Seller's and Seller S&L's board
of directors' meetings and all committee meetings as an observer only and shall
give Buyer at least three days notice of all such meetings, provided that Buyer
shall not be entitled to have a representative at the portion of any such
meeting involving a discussion of this Agreement, the transactions contemplated
hereby (but Buyer shall not be excluded from discussions of ordinary course
banking business simply because such business is affected by representations,
warranties or covenants contained in this Agreement) and related matters.
b) Loan Policies. Reserve against, place on non-accrual, and charge off
loans and other assets as losses are recognized or future losses become
apparent, in accordance with GAAP and Seller S&L's past practices, which Seller
warrants and represents are in compliance in all material respects with all
applicable laws and regulations and have not been criticized in any examinations
or audits within the past three years;
c) Tax Returns. Prepare, execute and file, on or before the due date
thereof, all federal, state and local tax returns required to be filed by Seller
or Seller S&L with respect to its operations for any period ending before the
Effective Time and will pay the appropriate tax.
d) Customer Notice. Assist Buyer in drafting and preparing for mailing
a notice, the form and content of which shall be established by mutual agreement
of Buyer and Seller, to all Seller S&L's deposit and loan customers, notifying
them of the sale of Seller S&L to Buyer. The notice shall be mailed by Buyer
after all Requisite Regulatory Approvals and stockholder approvals have been
obtained but no later than the thirtieth day prior to the date agreed upon by
Buyer and Seller pursuant to Section 7.01 for the data processing conversion.
e) Liquidation Account. Cause Seller S&L to establish and maintain on
its books a true and complete record of those deposit accounts, including names
of depositors, which would have liquidation rights by reason of the conversion
of Seller S&L from mutual to stock form of organization.
f) Copies of Reports. Furnish to Buyer, until the Effective Time, true
and complete copies of the following information within five days after
preparation or receipt:
i) Monthly financial statements prepared with respect to Seller
and Seller S&L;
ii) Daily reports of Seller S&L beginning on the date of the final
regulatory approval of the transactions contemplated by this
Agreement and continuing through the Effective Time;
iii) Seller S&L's Reports of Condition and Income to regulatory
authorities at the close of business of each calendar quarter;
iv) Seller S&L's internal watch and problem loan reports;
v) Any and all board reports prepared for the use of Seller S&L's
board of directors or any board committee, excluding reports
which relate to this Agreement and the transactions
contemplated hereby and related matters, or to the
consideration of an Acquisition Proposal within the meaning of
Section 5.01 hereof;
vi) Any reports submitted to Seller S&L by independent certified
public accountants in connection with an examination of Seller
S&L's financial statements;
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Agreement and Plan of Merger - Hardin Bancorp, Inc. October 25, 2000
vii) Notice of all actions, suits, and proceedings before any court
or governmental department, commission, board, bureau, agency,
or instrumentality affecting Seller or Seller S&L which, if
determined adversely, could have a Material Adverse Effect on
the financial condition, properties, or operations of Seller
or Seller S&L;
viii) Any notices or communications received from any savings and
loan regulatory body with respect to the affairs or operations
of Seller or Seller S&L; and
ix) Any additional information reasonably requested by Buyer for
completion of any applications for regulatory approval of the
transactions contemplated by this Agreement.
Section 4.02 Forbearance by Seller. Without limiting the covenants set forth in
Section 4.01 hereof, except as otherwise provided in this Agreement and except
to the extent required by law or regulation or any Governmental Entity, during
the period from the date of this Agreement to the Effective Time, Seller shall
not, and shall not permit any of its Subsidiaries to, without the prior consent
of Buyer, which consent shall not be unreasonably withheld:
a) unless required by applicable law or regulation or regulatory
directive, change any provisions of the certificate of incorporation or bylaws
of Seller or the similar governing documents of its Subsidiaries;
b) authorize, issue, deliver or sell any shares of its capital stock or
any securities or obligations convertible or exercisable for any shares of its
capital stock or change the terms of any of its outstanding stock options or
warrants or issue, grant or sell any option, warrant, call, commitment, stock
appreciation right, right to purchase or agreement of any character relating to
the authorized or issued capital stock of Seller except pursuant to the exercise
of stock options or warrants or restricted stock grants outstanding as of the
date of this Agreement, or split, combine, reclassify or adjust any shares of
its capital stock or otherwise change its capitalization;
c) make, declare or pay any cash or stock dividend or make any other
distribution on, or directly or indirectly redeem, purchase or otherwise
acquire, any shares of its capital stock or any securities or obligations
convertible into or exchangeable for any shares of its capital stock, provided,
however, that Seller may pay normal quarterly cash dividends of not more than $
.20 per share of Seller Common Stock. Subject to applicable regulatory'
restrictions, if any, Seller S&L may pay a cash dividend that is, in the
aggregate, sufficient to fund any dividend by Seller permitted hereunder and to
fund the normal operations of Seller and the payment of reasonable expenses
relating to the Merger;
d) other than for fair value in the ordinary course of business
consistent with past practice, (i) acquire or sell, transfer, assign, mortgage,
encumber or otherwise dispose of any material properties, leases, assets or
other rights or agreements to any individual, corporation or other entity other
than a direct or indirect wholly owned Subsidiary of Seller or (ii) cancel,
release or assign any indebtedness of any such individual, corporation or other
entity or (iii) permit Seller S&L to waive any material right or cancel any
material contract, lease, license, obligation or commitment, or permit any lien,
encumbrance or charge of any material effect to attach to any of Seller's or
Seller S&L's assets;
e) except to the extent required by law or as specifically provided for
elsewhere herein, increase in any manner the compensation or fringe benefits of
any of its employees or directors, other than general increases in compensation
for non-executive officer employees in the ordinary course of business
consistent with past practice; pay any pension or retirement allowance not
required by any existing plan or agreement to any employees or directors,
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Agreement and Plan of Merger - Hardin Bancorp, Inc. October 25, 2000
or become a party to, amend or commit itself to fund or otherwise establish any
trust or account related to any Seller Employee Plan (as defined in Section
3.03m)) with or for the benefit of any employee or director not required by any
existing plan or agreement; grant or award any stock options; make any
discretionary contribution to any Seller Employee Plan; hire any employee with
an annual total compensation payment in excess of $35,000; or enter into or
amend any employment contract with any employee;
f) except as contemplated by Section 5.02, change its methods of
accounting, tax or systems of internal accounting controls, as in effect at
September 30, 1999, except as required by changes in GAAP with the concurrence
of Seller's independent auditors;
g) commence any litigation other than in the ordinary course of
business, settle any claim, action or proceeding involving any liability of
Seller or any of its Subsidiaries for money damages in excess of $25,000 or
impose material restrictions upon the operations of Seller or any of its
Subsidiaries;
h) acquire or agree to acquire, by merging or consolidating with, or by
purchasing a substantial equity interest in or a substantial portion of the
assets of, or by any other manner, any business or any corporation, partnership,
association or other business organization or division thereof or otherwise
acquire or agree to acquire any assets, in each case which are material,
individually or in the aggregate, to Seller, except in satisfaction of debts
previously contracted;
i) establish or commit to the establishment of any new branch or other
office facilities or file any application to relocate or terminate the operation
of any banking office;
j) other than investments for Seller's portfolio made in accordance
with Section 4.02k), make any investment either by purchase of stock or
securities, contributions to capital, property transfers, or purchase of any
property or assets of any other individual, corporation or other entity;
k) make any investment in any debt security, including mortgage-backed
and mortgage-related securities, or materially restructure or change its
investment securities portfolio, through purchases, sales or otherwise;
provided, however, that Seller shall be permitted to invest in the following
securities with final maturities not greater than six months: U.S. government
and U.S. government agency securities, or securities of the FHLB;
l) enter into, renew, amend or terminate any contract or agreement, or
make any change in any of its leases or contracts, other than with respect to
those involving aggregate payments of less than, or the provision of goods or
services with a market value of less than, $50,000 per annum over a term not
exceeding three years and other than contracts or agreements covered by Section
4.02o);
m) make, renegotiate, renew, increase, extend, modify or purchase any
loan, lease (credit equivalent), advance, credit enhancement or other extension
of credit, or make any commitment in respect of any of the foregoing, or make
any loans to any borrower on terms materially more favorable than those
available to the general public in Seller S&L's market area, except (i) in
conformity with existing safe and sound lending practices in amounts not to
exceed an aggregate of $100,000 secured or $25,000 unsecured with respect to any
individual borrower or loans secured by first mortgages on single family
residential properties up to the limits on conforming loans imposed by Fannie
Mae or Freddie Mac; (ii) loans or advances as to which Seller has a binding
obligation to make such loan or advances as of the date hereof; provided,
however, that the requirements of this section shall be deemed met as to any
loan approved in a loan committee or Board meeting of which an authorized
representative of Buyer was given at least 24 hours written or oral notification
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Agreement and Plan of Merger - Hardin Bancorp, Inc. October 25, 2000
and, if such representative attends such meeting, he or she shall have raised no
objection;
n) extend or renew loans or advance additional sums to a borrower whose
loans, in whole or in part, have been classified or listed as special mention by
any regulatory authority or included on Seller S&L's watch list unless such
extension, renewal or advance shall have been approved in advance by the Board
of Directors of Seller S&L or Seller S&L's Loan and Discount Committee, and only
if such extension, renewal or advance is necessary in order to protect Seller
S&L's interests and is in accordance with sound banking practices;
o) incur any additional borrowings other than purchases of Federal
Funds or short-term (six months or less) FHLB borrowings at market interest
rates and reverse repurchase agreements consistent with past practice, or pledge
any of its assets to secure any borrowings other than as required pursuant to
the terms of borrowings of Seller or any Subsidiary in effect at the date hereof
or in connection with borrowings or reverse repurchase agreements permitted
hereunder;
p) accept any deposits from any person on terms materially more
favorable in any respect than those available to the general public in Seller's
market area, unless such deposits are accepted in accordance with a safe and
sound program or practice in existence at Seller S&L prior to the date of this
Agreement;
q) establish or impose a schedule of service charges or fees which
applies charges either substantially more or substantially less than similar
service charges and fees charged by other banks in Seller's market areas;
r) make any capital expenditures in excess of $10,000 per expenditure,
or $200,000 in the aggregate, other than pursuant to binding commitments
existing on the date hereof disclosed in the Seller Disclosure Letter (or other
proposals included in Seller's Disclosure Letter and not objected to in writing
by Buyer within five days after receipt of Seller's Disclosure Letter) and other
than expenditures necessary to maintain existing assets in good repair or to
make payment of necessary taxes;
s) organize, capitalize, lend to or otherwise invest in any Subsidiary;
t) elect to any senior executive office any person who is not a member
of the senior executive officer team of Seller as of the date of this Agreement
or elect to the Board of Directors of Seller any person who is not a member of
the Board of Directors of Seller as of the date of this Agreement;
u) enter into any agreements or transactions after the date of this
Agreement with any officer, director, 5% stockholder or employee of Seller or
Seller S&L, or any Affiliate or Subsidiary thereof, directly or indirectly, in
an amount of $5,000 or more in each case or $25,000 in the aggregate; or
v) agree or make any commitment to take any action that is prohibited
by this Section 4.02.
Any request by Seller or response thereto by Buyer shall be made in
accordance with the notice provisions of Section 10.07 and shall note that it is
a request pursuant to this Section 4.02.
Section 4.03 Conduct of Buyer's Business Prior to the Effective Time. Except as
expressly provided in this Agreement, during the period from the date of this
Agreement to the Effective Time, Buyer shall, and shall cause its Subsidiaries
to, use its commercially reasonable efforts to (i) conduct its business in the
regular, ordinary and usual course consistent with past practice; (ii) maintain
and preserve intact its business organization, properties, leases, employees and
advantageous
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Agreement and Plan of Merger - Hardin Bancorp, Inc. October 25, 2000
business relationships; and (iii) take no action which would materially
adversely affect or delay the ability of Seller or Buyer to perform their
respective covenants and agreements on a timely basis under this Agreement.
Article V. Covenants Section
5.01 Acquisition Proposals. From and after the date hereof until the termination
of this Agreement, neither Seller nor Seller S&L, nor any of their respective
officers, directors, employees, representatives, agents or affiliates
(including, without limitation, any investment banker, attorney or accountant
retained by Seller or any of its Subsidiaries), will, directly or indirectly,
initiate, solicit or knowingly encourage (including by way of furnishing
non-public information or assistance), or facilitate knowingly, any inquiries or
the making of any proposal that constitutes, or may reasonably be expected to
lead to, any Acquisition Proposal (as defined below), or enter into or maintain
or continue discussions or negotiate with any person or entity in furtherance of
such inquiries or to obtain an Acquisition Proposal or agree to or endorse any
Acquisition Proposal, or authorize or permit any of its officers, directors or
employees or any of its subsidiaries or any investment banker, financial
advisor, attorney, accountant or other representative retained by any of its
Subsidiaries to take any such action; provided, however, that nothing contained
in this Section 5.01 shall prohibit the Board of Directors of Seller from (i)
furnishing information to, or entering into discussions or negotiations with
any, person or entity that makes an unsolicited written, bona fide proposal to
acquire Seller pursuant to a merger, consolidation, share exchange, business
combination, tender or exchange offer or other similar transaction, if, and only
to the extent that the Board of Directors of Seller concludes in good faith,
after consultation with its financial advisors and legal counsel and taking into
account, among other things, all legal, financial, regulatory and other aspects
of such Acquisition Proposal, and the nature of the person making the
Acquisition Proposal, that such proposal, would, if consummated, result in a
transaction that is more favorable to its stockholders (in their capacities as
stockholders), from a financial point of view, than the transactions
contemplated by this Agreement and is reasonably capable of being completed (a
"Superior Proposal") and prior to furnishing such information to, or entering
into discussions or negotiations with, such person or entity, Seller (x)
provides reasonable notice to Buyer to the effect that it is furnishing
information to, or entering into discussions or negotiations with, such person
or entity and (y) receives from such person or entity an executed
confidentiality agreement in reasonably customary form; (ii) complying with Rule
14e-2 promulgated under the Exchange Act with regard to a tender or exchange
offer; or (iii) failing to make or withdrawing or modifying its recommendation,
or (iv) entering into an agreement with respect to a Superior Proposal. For
purposes of this Agreement, "Acquisition Proposal" shall mean any of the
following (other than the transactions contemplated hereunder) involving Seller
or any of its Subsidiaries: (i) any merger, consolidation, share exchange,
business combination, recapitalization, liquidation, dissolution, or other
similar transaction; (ii) any sale, lease, exchange, mortgage, pledge, transfer
or other disposition of 25% or more of the assets of Seller or Seller S&L, taken
as a whole, in a single transaction or series of transactions; (iii) any tender
offer or exchange offer for 25% or more of the outstanding shares of capital
stock of Seller or the filing of a registration statement under the Securities
Act of 1933, as amended (the "Securities Act"), in connection therewith; or (iv)
any public announcement of a proposal, plan or intention to do any of the
foregoing or any agreement to engage in any of the foregoing.
Section 5.02 Certain Policies and Actions of Seller.
a) At the request of Buyer, Seller shall cause Seller S&L to modify and
change its loan, litigation and real estate valuation policies and practices
(including loan classifications and levels of reserves) and investment and
asset/liability management policies and practices after the date on which all
Requisite Regulatory Approvals and stockholder approvals are received,
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Agreement and Plan of Merger - Hardin Bancorp, Inc. October 25, 2000
provided however, that Seller shall not be required to take such action other
than actions specifically set forth in Section 4.01 or Section 4.02 of this
Agreement unless Buyer agrees in writing that (i) all conditions to Closing set
forth in Section 6.01 and Section 6.02 have been satisfied or waived (except for
the expiration of any applicable waiting periods) and that (ii) all rights of
Buyer to terminate this Agreement shall have lapsed, and prior to the Effective
Time so as to be consistent on a mutually satisfactory basis with those of Buyer
Bank; provided, however, that Seller shall not be required to take such action
more than 30 days prior to the Effective Time; and provided, further, that such
policies and procedures are not prohibited by GAAP or any applicable laws and
regulations or result in Seller S&L violating any regulatory requirements.
b) Seller's representations, warranties and covenants contained in this
Agreement shall not be deemed to be untrue or breached in any respect for any
purpose as a consequence of any modifications or changes undertaken solely on
account of this Section 5.02. Buyer agrees to hold harmless, indemnify and
defend Seller and its Subsidiaries, and their respective directors, officers and
employees, for any loss, claim, liability or other damage caused by or resulting
from compliance with this Section 5.02.
Section 5.03 Access and Information. Upon reasonable notice, Seller shall (and
shall cause its Subsidiaries to) afford to Buyer and its representatives
(including, without limitation, directors, officers and employees of Buyer and
its affiliates and counsel, accountants and other professionals retained by
Buyer) such reasonable access during normal business hours throughout the period
prior to the Effective Time to the books, records (including, without
limitation, tax returns and work papers of independent auditors), contracts,
properties, personnel, advisors and to such other information relating to Seller
and its Subsidiaries as Buyer may reasonably request and shall permit Buyer and
its authorized representatives to make such copies thereof as they may
reasonably request; provided, however, that no investigation pursuant to this
Section 5.03 shall affect or be deemed to modify any representation or warranty
made herein. In furtherance, and not in limitation of the foregoing, Seller
shall make available to Buyer all information necessary or appropriate for the
preparation and filing of all real property and real estate transfer tax returns
and reports required by reason of the Merger. Upon reasonable notice, Buyer
shall (and shall cause its Subsidiaries to) provide to Seller and its
representatives (including, without limitation, directors, officers and
employees of Seller and its affiliates and counsel, accountants and other
professionals retained by Seller) such books, records and such other information
relating to Buyer and its Subsidiaries as Seller may reasonably request, but
only to the extent such access and information is reasonably required for the
preparation of Seller's Fairness Opinion, for Seller to determine Buyer's
ability to perform its obligations under this Agreement or for inclusion in the
Proxy Statement to be mailed to Seller's stockholders. Buyer and Seller will
not, and will cause their respective representatives not to, use any information
obtained pursuant to this Section 5.03 for any purpose unrelated to the
consummation of the transactions contemplated by this Agreement. Subject to the
requirements of applicable law, Buyer and Seller will keep confidential, and
will cause their respective representatives to keep confidential, all
information and documents obtained pursuant to this Section 5.03 unless such
information (i) was already known to such party or an affiliate of such party,
other than pursuant to a confidentiality agreement or other confidential
relationship, (ii) becomes available to such party or an affiliate of such party
from other sources not known by such party to be bound by a confidentiality
agreement or other obligation of secrecy, (iii) is disclosed with the prior
written approval of the other party or (iv) is or becomes readily ascertainable
from published information or trade sources. In the event that this Agreement is
terminated or the transactions contemplated by this Agreement shall otherwise
fail to be consummated, each party shall promptly cause all copies of documents
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Agreement and Plan of Merger - Hardin Bancorp, Inc. October 25, 2000
or extracts thereof containing information and data as to another party hereto
(or an affiliate of any party hereto) to be returned to the party that furnished
the same.
Section 5.04 Certain Filings, Consents and Arrangements. Except as otherwise
specifically designated to Seller by this Section, Buyer shall as soon as
practicable and in cooperation with Seller (and in any event within 45 days
after the date hereof) make, or cause to be made, any filings and applications
and provide any notices required to be filed or provided in order to obtain all
approvals, consents and waivers of Governmental Entities necessary or
appropriate for the consummation of the transactions contemplated hereby. Buyer
shall provide Seller and its counsel with copies of the public portion of all
filings, applications and notices submitted to any Governmental Entity at the
time of filing, provided, however, that Buyer shall provide Seller with a
reasonable opportunity to review any such filings requiring the signature of
Seller or Seller S&L in advance of filing. Seller shall as soon as practicable
and in cooperation with Buyer (and in any event within 45 days after the date
hereof) make, or cause to be made, any filings and applications and provide any
notices required to be filed or provided in order to obtain all approvals,
consents and waivers of the Office of Thrift Supervision which are required to
effect the transactions contemplated by this Agreement, such applications to be
filed at Seller's expense. Seller shall provide Buyer with copies of any such
filings, applications and notices filed with the Office of Thrift Supervision at
the time of filing, provided, however, that Seller shall provide Buyer with a
reasonable opportunity to review any such filings requiring the signature of
Buyer or Buyer Bank in advance of filing.
Section 5.05 Additional Actions. Subject to the terms and conditions herein
provided, each of the parties hereto agrees to use all commercially reasonable
efforts to take promptly, or cause to be taken promptly, all actions and to do
promptly, or cause to be done promptly, all things necessary, proper or
advisable under applicable laws and regulations to consummate and make effective
the transactions contemplated by this Agreement, including the Merger, as
expeditiously as possible, including using efforts to obtain all necessary
actions or non-actions, extensions, waivers, consents and approvals from all
applicable Governmental Entities, effecting all necessary registrations,
applications and filings (including, without limitation, filings under any
applicable state securities laws) and obtaining any required contractual
consents and regulatory approvals.
Section 5.06 Publicity. Seller and Buyer shall consult with each other in
issuing any press releases or otherwise making public statements with respect to
the Merger and any other transaction contemplated hereby and in making any
filings with any Governmental Entity or with any national securities exchange or
the NASD with respect thereto; provided, however, that nothing contained in this
Section 5.06 shall prohibit any party, following notification to the other party
to this Agreement, from making any disclosure which, after consultation with
counsel, it deems necessary to comply with the requirements of applicable law
and regulation.
Section 5.07 Stockholders Meeting. Seller shall take all action necessary, in
accordance with applicable law and its Certificate of Incorporation and Bylaws,
to convene a meeting of its stockholders ("Stockholder Meeting") as promptly as
practicable for the purpose of considering and voting on approval and adoption
of this Agreement, the Merger and the other transactions provided for in this
Agreement. Except as otherwise provided in Section 5.01, the Board of Directors
of Seller shall (a) recommend at its Stockholder Meeting that the stockholders
vote in favor of and approve the transactions provided for in this Agreement and
(b) use its commercially reasonable efforts to solicit such approvals. Seller
may employ professional proxy solicitors to assist in contacting stockholders in
connection with soliciting favorable votes on the Merger.
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Agreement and Plan of Merger - Hardin Bancorp, Inc. October 25, 2000
Section 5.08 Proxy Statement. For the purposes of holding the Seller
Stockholders Meeting, Seller shall prepare a proxy statement satisfying in all
material respects all applicable requirements of the Exchange Act, and the rules
and regulations thereunder. Seller shall provide Buyer with a reasonable
opportunity to review and comment on the proxy statement before it is mailed to
Seller's Stockholders. Buyer agrees to provide for inclusion in such proxy
statement all information reasonably necessary to satisfy the requirements of
the Exchange Act and the rules and regulations thereunder and such information
shall not contain any untrue statement of a material fact or omit to state any
material fact required to be stated in such proxy statement with respect to
Buyer or its Subsidiaries or to make the statements therein with respect to
Buyer or its Subsidiaries not misleading.
Section 5.09 Notification of Certain Matters. Each party shall give prompt
notice to the other of: (a) any event or notice of, or other communication
relating to, a default or event that, with notice or lapse of time or both,
would become a default, received by it or any of its Subsidiaries subsequent to
the date of this Agreement and prior to the Effective Time, under any contract
material to the financial condition, properties, businesses or results of
operations of each party and its Subsidiaries taken as a whole to which each
party or any Subsidiary is a party or is subject; and (b) any event, condition,
change or occurrence which individually or in the aggregate has, or which, so
far as reasonably can be foreseen at the time of its occurrence, is reasonably
likely to result in a Material Adverse Effect with respect to such party and its
Subsidiaries taken as a whole, each of Seller and Buyer shall give prompt notice
to the other party of any notice or other communication from any third party
alleging that the consent of such third party is or may be required in
connection with any of the transactions contemplated by this Agreement.
Section 5.10 Employees and Benefit Plans.
a) All persons who are employees of Seller or any of its Subsidiaries
immediately prior to the Effective Time and whose employment is not specifically
terminated at or prior to the Effective Time (a "Continuing Employee") shall, at
the Effective Time, remain employees of the Surviving Corporation or any of its
Subsidiaries. All of the Continuing Employees shall be employed at the will of
Buyer and no contractual right to employment shall inure to such employees
because of this Agreement. At any time after the receipt of the Requisite
Regulatory Approvals for the transactions contemplated by this Agreement, or by
mutual consent prior thereto, Seller shall allow Buyer to conduct interviews
with the existing employees of Seller and Seller S&L and to communicate with the
employees regarding the terms of their employment which will be in effect on or
after the Effective Time. At any time after the receipt of the Requisite
Regulatory Approvals for the transactions contemplated by this Agreement, Seller
shall allow Buyer to conduct training sessions for employees of Seller and its
Subsidiaries at Buyer's or Seller S&L's facilities. All such training sessions
shall be scheduled so as to have minimal impact upon the employees' performance
of their normal daily duties.
b) As of or after the Effective Time, and at Buyer's election and subject to the
requirements of the IRC and ERISA, the Seller Employee Plans may continue to be
maintained separately, consolidated or terminated. In the event of consolidation
or termination of all or any such plans, Continuing Employees shall receive
credit for service with Seller (for purposes of eligibility and vesting but not
for purposes of benefit accruals) under any existing Buyer Employee Plan or
under any Buyer Employee Plan in which such employee or such employee's
dependent would be eligible to enroll. Buyer Employee Plans shall be defined in
the same manner as to Buyer as Seller Employee Plan is defined as to Seller in
Section 3.03m) hereof. Continuing Employees shall receive credit for service
with Seller for all purposes under Buyer's vacation and sick leave plans.
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Agreement and Plan of Merger - Hardin Bancorp, Inc. October 25, 2000
c) In the event of any termination or consolidation of any Seller S&L
health plan with any Buyer health plan, Buyer shall make available to Continuing
Employees and their dependents employer-provided health coverage on the same
basis as it provides such coverage to Buyer employees. Unless a Continuing
Employee affirmatively terminates coverage under a Seller health plan prior to
the time that such Continuing Employee becomes eligible to participate in the
Buyer health plan, no coverage of any of the Continuing Employees or their
dependents shall terminate under any of the Seller health plans prior to the
time such Continuing Employees and their dependents become eligible to
participate in the health plan, programs and benefits common to all employees of
Buyer and their dependents. In the event of any termination, or consolidation of
any Seller S&L health plan with any Buyer health plan, any pre-existing
condition, limitation or exclusion in the Buyer health plan shall not apply to
Continuing Employees or their covered dependents who have satisfied such
pre-existing condition exclusion waiting period under a Seller S&L health plan
with respect to such pre-existing condition at the Effective Time and who then
change that coverage to Buyer's health plan at the time such Continuing Employee
is first given the option to enroll in such Buyer health plan.
d) At or immediately prior to the Effective Time, Seller shall cash out
existing life insurance policies owned by Seller, other than any policies Buyer
shall request Seller to retain.
e) Prior to the Effective Time, Seller shall be entitled to make the
maximum contribution permitted by the provisions of IRC ss.404 and ss.415,
provided however, that (i) the amount of the contribution made shall be used by
the ESOP only to make payments on the then remaining loan balance owed by the
ESOP to Seller, and (ii) the amount of the foregoing contribution shall in no
event exceed the then remaining unpaid loan balance. Seller represents and
warrants that no contribution made pursuant to this paragraph will exceed the
limitations of Section 415 of the IRC.
f) Prior to the Effective Time, the Seller ESOP shall be amended to state that
any Merger Consideration remaining after repayment of the loan between Seller
and the ESOP shall be allocated as investment earnings of the ESOP to the ESOP
accounts of employees of Seller or any of its Subsidiaries who are ESOP
participants and beneficiaries (the "ESOP Participants") in accordance with the
terms of the ESOP as amended and as in effect at the Effective Time. All ESOP
Participants shall fully vest and have a nonforfeitable interest in their
accounts under the ESOP determined as of the Effective Time. As soon as
practicable after the Effective Time, any loan between Seller and the ESOP shall
be repaid in full from the Merger Consideration received by the ESOP for
unallocated shares of Seller Common Stock held by the ESOP upon the conversion
of such shares into cash pursuant to this Agreement. Seller's board of directors
shall take action prior to the Effective Time to terminate the ESOP on such
terms as Seller and Buyer may determine, provided that such termination shall
not become effective until after the Effective Time and after the ESOP loan has
been repaid. From and after the date of this Agreement, in anticipation of the
termination of the ESOP, Seller and its representatives, before the Effective
Time, and Buyer and its representatives, after the Effective Time, shall file an
application for determination with the Internal Revenue Service ("IRS") as to
the tax qualified status of the ESOP upon its termination under Section 401(a)
and 4975(e)(7) of the IRC (the "Determination Letter"). As soon as reasonably
practicable after the receipt of a favorable Determination Letter from the IRS,
Buyer shall instruct the ESOP Trustee to make distributions of the benefits
under the ESOP to the ESOP Participants in accordance with the provisions of the
ESOP. If Buyer and its representatives, after the Effective Time, reasonably
determine that the Seller S&L ESOP cannot obtain a favorable Final Determination
Letter, or that amounts held therein cannot be so applied, allocated or
distributed without causing Seller S&L ESOP to lose its tax qualified status,
Buyer shall take such action as it may reasonably determine with respect to the
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Agreement and Plan of Merger - Hardin Bancorp, Inc. October 25, 2000
distribution of benefits to the Seller S&L ESOP Participants, provided that the
assets of the Seller S&L ESOP shall be held or paid only for the benefit of the
Seller S&L ESOP Participants and provided further that in no event shall any
portion of the amounts held in the Seller S&L ESOP revert, directly or
indirectly, to Seller S&L or any Seller Subsidiary, or to Buyer or any affiliate
thereof. At the time distribution of benefits is made under the Seller S&L ESOP
on or after the Effective Time, at the election of the Seller S&L ESOP
Participant, the amount thereof that constitutes an "eligible rollover
distribution" (as defined in Section 402(f)(2)(A) of the IRC) may be rolled over
by such Seller S&L ESOP Participant to any Buyer Qualified Plan that permits
rollover distributions or to any eligible individual retirement account.
g) At or prior to the Effective Time, Seller shall pay, in cash, the
severance benefit and, after the Effective Time, Buyer shall honor the employee
benefit obligations required by the employment and severance agreements listed
on Section 5.10i) of the Disclosure Letter.
h) At or prior to the Effective Time the Directors' Compensation
Agreements and Officer's Compensation Agreements listed on Section 5.10i) of the
Disclosure Letter shall be terminated and any benefits (or any remaining
benefits) to which the participants therein shall be entitled shall be paid by
Seller to such participants in a lump sum cash payment, reduced to present value
using an 8% discount rate.
i) Buyer agrees to continue Seller's employee policy regarding payment
of accumulated sick leave on termination for a period of six months following
the Effective Time.
j) Buyer agrees to honor the Management Agreement with Mike Schwarz
through March 31, 2001.
k) At the Effective Time, Buyer agrees to offer Robert W. King a
Consulting and Non-competition Agreement in the form heretofore agreed by the
parties.
l) Buyer will not be responsible for any employee benefits of Seller
except as expressly set forth in this Agreement.
Section 5.11 Indemnification.
a) From and after the Effective Time through the sixth anniversary
thereof, or until the final disposition of such claim (as herein defined) with
respect to any claim asserted on or before the sixth anniversary of the
Effective Time, and except as limited, conditioned or prohibited by laws, rules,
regulations or orders to which Buyer is subject at the time such payments are to
be made, Buyer agrees to indemnify, defend and hold harmless each present and
former director and officer of Seller and its Subsidiaries determined as of the
Closing Date (the "Indemnified Parties") against all losses, claims, damages,
costs, expenses (including reasonable attorneys' fees and expenses),
liabilities, judgments or amounts paid in settlement (with the approval of
Buyer, which approval shall not be unreasonably withheld) or in connection with
any claim, action, suit, proceeding or investigation arising out of matters
existing or occurring at or prior to the Effective Time (a "Claim") in which an
Indemnified Party is, or is threatened to be made, a party or a witness based in
whole or in part on, or arising in whole or in part out of, the fact that such
person is or was a director or officer of Seller or any of its subsidiaries,
regardless of whether such Claim is asserted or claimed prior to, at or after
the Closing Date, to the fullest extent to which directors and officers of
Seller are entitled under Delaware law, Seller's certificate of incorporation
and bylaws, or other applicable law as in effect on the date hereof (and Buyer
shall pay expenses in advance of the final disposition of any such action or
proceeding to each Indemnified Party to the extent permissible to a Delaware
corporation under Delaware law and Seller's certificate of incorporation and
bylaws as in effect on the date hereof, except to the extent such advances are
limited, conditioned or prohibited by laws, rules, regulations or orders to
which Buyer is subject at
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Agreement and Plan of Merger - Hardin Bancorp, Inc. October 25, 2000
the time such payments are to be made; provided, that the person to whom
expenses are advanced provides an undertaking to repay such expenses if it is
ultimately determined that such person is not entitled to indemnification). All
rights to indemnification in respect of a Claim asserted or made within the
period described in the preceding sentence shall continue until the final
non-appealable disposition of such Claim.
b) Any Indemnified Party wishing to claim indemnification under Section
5.11a), upon learning of any Claim, shall promptly notify Buyer, but the failure
to so notify shall not relieve Buyer of any liability it may have to such
Indemnified Party except to the extent that such failure materially prejudices
Buyer. Any Indemnified Party having actual knowledge of a Claim on or before the
Effective Date shall give notice to Buyer and to Seller's directors' and
officers' liability insurance carrier and shall take all actions necessary to
preserve rights to indemnification under such policy, but the failure to so
notify or pursue such claim shall not relieve Buyer of any liability it may have
to such Indemnified Party except to the extent that such failure materially
prejudices Buyer. In the event of any Claim, (1) Buyer shall have the right to
assume the defense thereof (with counsel reasonably satisfactory to the
Indemnified Party) and upon such assumption shall not be liable to such
Indemnified Parties for any legal expenses of other counsel or any other
expenses subsequently incurred by such Indemnified Parties in connection with
the defense thereof; except that, if Buyer elects not to assume such defense,
the Indemnified Parties may retain counsel satisfactory to them, or if counsel
for the Indemnified Parties also represents Buyer and advises that there are
issues which raise conflicts of interest between Buyer and the Indemnified
Parties which the parties cannot reasonably agree to waive, Buyer shall retain
independent counsel reasonably satisfactory to the Indemnified Parties, and
Buyer shall pay all reasonable fees and expenses of such counsel for the
Indemnified Parties promptly as statements therefor are received, provided
further that Buyer shall in all cases be obligated pursuant to this paragraph to
pay for only one firm of counsel for all Indemnified Parties, (2) the
Indemnified Parties will cooperate in the defense of any such Claim and (3)
Buyer shall not be liable for any settlement effected without its prior written
consent (which consent shall not unreasonably be withheld).
c) In the event Buyer or any of its successors or assigns (1)
consolidates with or merges into any other Person and shall not continue or
survive such consolidation or merger, or (2) transfers or conveys all or
substantially all of its properties and assets to any Person, then, and in each
such case, to the extent necessary, proper provision shall be made so that the
successors and assigns of Buyer assume the obligations set forth in this Section
5.11. The term "Buyer" shall include such successors and assigns at each place
the term is used in these indemnification provisions.
d) The provisions of this Section 5.11 are intended to be for the
benefit of, and shall be enforceable by, each Indemnified Party and his or her
heirs, estate and personal representatives to the extent that each is liable or
alleged to be liable for a Claim as a successor to the Indemnified Party.
Section 5.12 Acquisition Sub.
Prior to the Effective Time, Buyer will take any and all necessary action to
cause (i) Acquisition Sub to become a direct wholly-owned subsidiary of Buyer
and (ii) the directors and the stockholder of Acquisition Sub to approve the
transactions contemplated by this Agreement.
Article VI. Conditions to Consummation
Section 6.01 Conditions to Each Party's Obligations.
The respective obligations of each party to effect the Merger and any other
transactions contemplated by this Agreement shall be subject to the satisfaction
of the following conditions:
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Agreement and Plan of Merger - Hardin Bancorp, Inc. October 25, 2000
a) This Agreement shall have been approved by the requisite vote of
Seller's stockholders in accordance with applicable laws and regulations.
b) The Requisite Regulatory Approvals, the consent of the OTS and any
other required waivers of regulatory or governmental bodies with respect to this
Agreement and the transactions contemplated hereby shall have been obtained and
shall remain in full force and effect, and all statutory waiting periods shall
have expired; and all other consents, waivers and approvals of any third parties
which are necessary to permit the consummation of the Merger and the other
transactions contemplated hereby shall have been obtained or made except for
those the failure to obtain would not have a Material Adverse Effect (i) on
Seller and its Subsidiaries taken as a whole or (ii) on Buyer and its
Subsidiaries taken as a whole. No such approval or consent shall have imposed
any condition or requirement that would so materially and adversely impact the
economic or business benefits to Buyer or Seller of the transactions
contemplated hereby that, had such condition or requirement been known, such
party would not, in its reasonable judgment, have entered into this Agreement.
c) No party hereto shall be subject to any order, decree, ruling or
injunction of a court or agency of competent jurisdiction which enjoins or
prohibits the consummation of the Merger or any other transactions contemplated
by this Agreement and no Governmental Entity shall have instituted any
proceeding for the purpose of enjoining or prohibiting the consummation of the
Merger or any transactions contemplated by this Agreement.
d) No statute, rule or regulation shall have been enacted, entered,
promulgated, interpreted, applied or enforced by any governmental authority
which prohibits, restricts or makes illegal consummation of the Merger or any
other transactions contemplated by this Agreement.
Section 6.02 Conditions to the Obligations of Buyer.
The obligations of Buyer to effect the Merger and any other transactions
contemplated by this Agreement shall be further subject to the satisfaction of
the following additional conditions, any one or more of which may be waived in
writing by Buyer:
a) The obligations of Seller required to be performed by it at or prior
to the Closing pursuant to the terms of this Agreement shall have been duly
performed and complied with in all respects, except as to the failure to perform
an obligation or obligations that would not result in a Material Adverse Effect
on Seller and its Subsidiaries taken as a whole, and the representations and
warranties of Seller contained in this Agreement shall be true and correct,
subject to Section 3.01 and Section 3.02, as of the date of this Agreement and
as of the Effective Time as though made at and as of the Effective Time (except
as to any representation or warranty which specifically relates to an earlier
date), and Buyer shall have received a certificate to the foregoing effect
signed by the president and the chief financial officer of Seller.
b) Buyer shall have received the opinion of counsel of Seller with
respect to those matters set forth on Exhibit B hereto in form and substance
reasonably satisfactory to Buyer.
Section 6.03 Conditions to the Obligations of Seller.
The obligations of Seller to effect the Merger, and any other transactions
contemplated by this Agreement shall be further subject to the satisfaction of
the following additional conditions, any one or more of which may be waived in
writing by Seller:
a) The obligations of Buyer required to be performed by it at or prior
to the Closing pursuant to the terms of this Agreement shall have been duly
performed and complied with in all respects, except as to the failure to perform
an obligation or obligations that would not result in a Material Adverse Effect
on Buyer and its Subsidiaries taken as a whole, and the representations and
warranties of Buyer contained in this Agreement shall be true and correct,
subject to
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Agreement and Plan of Merger - Hardin Bancorp, Inc. October 25, 2000
Section 3.01 and Section 3.02, as of the date of this Agreement and as of the
Effective Time as though made at and as of the Effective Time (except as to any
representation or warranty which specifically relates to an earlier date), and
Seller shall have received a certificate to the foregoing effect signed by the
president and the chief financial officer of Buyer.
b) Buyer shall have deposited or caused to be deposited, in trust with
the Paying Agent, an amount of cash equal to the aggregate Merger Consideration
that the Seller stockholders shall be entitled to receive at the Effective Time
pursuant to Section 1.02 of the Agreement.
Article VII. Data Processing
Section 7.01 Sample Data. At a date prior to Closing agreed upon between Buyer
and Seller, Seller shall provide to Buyer, a machine-readable data tape of all
of Seller S&L's loan and deposit accounts, together with a written description
of the file, record, and field data types and formats, to allow Buyer to prepare
for a data processing conversion. The data tape shall include summary interest
accrual and payment information for the current year to date, except that the
name and address information may, at Seller's option, be encoded in such a way
that the actual identities of Seller S&L's customers cannot be determined.
Section 7.02 Information for Check Ordering. After receipt of the Requisite
Regulatory Approvals of the transactions contemplated by this Agreement, Seller
shall provide to Buyer a machine-readable data tape of all of Seller S&L's
deposits, including all customer name and address information, to enable Buyer
to begin ordering checks, deposit slips, and other transaction items for use by
its customers.
Section 7.03 Installation of Data Circuits. After the effective date of this
Agreement, Seller shall cause Seller S&L to give Buyer reasonable access to
Seller S&L's locations during normal business hours for the purposes of
installing and testing data circuits and data processing equipment, provided
that the location, installation, and testing of said circuits and equipment
shall not be permitted to disrupt Seller S&L's normal daily functions and
operation. In the event that this Agreement is terminated without consummation
of the planned transactions, Buyer shall remove its data processing equipment
and circuits within 30 days after the termination and shall repair promptly any
damage done to Seller S&L's property during the installation or removal, all at
Buyer's sole expense.
Article VIII. Termination
Section 8.01 Termination. This Agreement may be terminated, and the Merger
abandoned, at or prior to the Effective Time, either before or after any
requisite stockholder approval:
a) by the mutual consent of Buyer and Seller in a written instrument,
if the Board of Directors of each so determines by vote of a majority of the
members of its entire Board; or
b) by Buyer or Seller, if its Board of Directors so determines by vote
of a majority of the members of its entire Board, in the event of the failure of
the stockholders of Seller to approve the Agreement at the Stockholder Meeting;
or
c) by Buyer or Seller, by written notice to the other party, if either
(i) any approval, consent or waiver of a governmental agency required to permit
consummation of the transactions contemplated hereby shall have been
unappealably denied or (ii) any governmental authority of competent jurisdiction
shall have issued a final, unappealable order enjoining or otherwise prohibiting
consummation of the transactions contemplated by this Agreement; or
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Agreement and Plan of Merger - Hardin Bancorp, Inc. October 25, 2000
d) by Buyer or Seller, if its Board of Directors so determines by vote
of a majority of the members of its entire Board, in the event that the Merger
is not consummated by May 31, 2001, unless the failure to so consummate by such
time is due to the material breach of any representation, warranty or covenant
contained in this Agreement by the party seeking to terminate; or
e) by Buyer or Seller (provided that the party seeking termination is
not then in material breach of any representation, warranty, covenant or other
agreement contained herein), in the event of (i) a failure to perform or comply
by the other party with any covenant or agreement of such other party contained
in this Agreement, which failure or non-compliance has a Material Adverse Effect
in the context of the transactions contemplated by this Agreement, or (ii)
subject to Section 3.02a), any inaccuracies, omissions or breach in the
representations, warranties, covenants or agreements of the other party
contained in this Agreement the circumstances as to which either individually or
in the aggregate have, or reasonably could be expected to have, a Material
Adverse Effect on such other party; in either case which has not been or cannot
be cured within 30 calendar days after written notice thereof is given by the
party seeking to terminate to such other party; or
f) by Seller, if the Board of Directors of Seller reasonably determines
by vote of a majority of the members of its entire Board that an Acquisition
Proposal is a Superior Proposal.
g) by Buyer, if more than 10% of Seller's stockholders exercise
dissenters' or appraisal rights under applicable law by delivering a written
demand for appraisal of their shares to Seller prior to the stockholders vote on
the Merger.
h) by Buyer, if there shall have been a change in the condition of
Seller between the date of Buyer's initial due diligence and the closing date
which constitutes a Material Adverse Effect and Buyer shall have given written
notice thereof to the Seller and within 30 days thereafter Seller shall have
failed to cure such change. Buyer shall be entitled to a final due diligence
review, on site, at Seller S&L's locations, during the last five (5) days prior
to the Effective Time, solely for the purpose of confirming that there have been
no changes since the date of Buyer's initial due diligence having a Material
Adverse Effect on the condition of Seller.
i) by Buyer, if the Requisite Regulatory Approvals are subject to
conditions reasonably unacceptable to Buyer, under the standards set forth in
Section 6.01b hereof.
Section 8.02 Termination Fee. In the event that Seller terminates this Agreement
pursuant to Section 8.01f) and, within 12 months after the termination of this
Agreement, Seller or Seller S&L enters into a definitive agreement with the
person that made the Superior Proposal then Seller shall, within 10 business
days following written demand by Buyer, pay to Buyer $500,000.
Section 8.03 Effect of Termination. In the event of termination of this
Agreement by either Buyer or Seller prior to the consummation of the Merger as
provided in Section 8.01, this Agreement shall forthwith become void and have no
effect, and there shall be no liability or obligation hereunder, except (i) the
obligations of the parties under Section 5.03 (with respect to confidentiality
and the return of information), Section 8.02 and Section 10.06 shall survive any
termination of this Agreement and (ii) that notwithstanding anything to the
contrary contained in this Agreement, no party shall be relieved or released
from any liabilities or damages arising out of its willful breach of any
provision of this Agreement.
Article IX. Closing and Effective Time
Section 9.01 Effective Time. The closing of the transactions
contemplated hereby ("Closing") shall take place at the offices of Buyer, unless
another place is agreed to by Buyer and Seller, on a date agreed to by Buyer and
Seller ("Closing Date") that is no later than 30 days following the date on
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Agreement and Plan of Merger - Hardin Bancorp, Inc. October 25, 2000
which the expiration of the last applicable waiting period in connection with
notices to and approvals of governmental authorities shall occur and all
conditions to the consummation of this Agreement are satisfied or waived, or on
such other date as may be agreed to by the parties. Prior to the Closing Date,
Acquisition Sub and Seller shall execute a Certificate of Merger in accordance
with all appropriate legal requirements, which shall be filed as required by law
on the Closing Date, and the Merger provided for therein shall become effective
on the date and at the time the Certificate of Merger reflecting the Merger
shall become effective with the Secretary of State of the State of Delaware (the
"Effective Time").
Section 9.02 Deliveries at the Closing. Subject to the provisions of Article VI
and Article VIII, on the Closing Date there shall be delivered to Buyer and
Seller the documents and instruments required to be delivered under Article VI.
Article X. Certain Other Matters
Section 10.01 Certain Definitions; Interpretation. As used in this Agreement,
the following terms shall have the meanings indicated:
a) "Affiliate" means any person (a) which directly or indirectly
controls, or is controlled by, or is under common control with any other person
or any Subsidiary of that other person; (b) which directly or beneficially owns
or controls 5% or more of any class of voting stock of another person or any
Subsidiary of that other person; or (c) of which 5% or more of any class of
voting stock is owned directly or beneficially by any other person or any
Subsidiary of that other person.
b) "person" includes an individual, corporation, limited liability
company, partnership, association, trust or unincorporated organization.
When a reference is made in this Agreement to Sections, Exhibits or
Schedules, such reference shall be to a Section of, Exhibit or Schedule to, this
Agreement unless otherwise indicated. The table of contents and headings
contained in this Agreement are for ease of reference only and shall not affect
the meaning or interpretation of this Agreement. Whenever the words "include,"
"includes" or "including" are used in this Agreement, they shall be deemed
followed by the words "without limitation." Any singular term in this Agreement
shall be deemed to include the plural, and any plural term the singular. Any
reference to gender in this Agreement shall be deemed to include any other
gender.
Section 10.02 Survival. Only those agreements and covenants of the parties that
are by their terms applicable in whole or in part after the Effective Time,
including Section 5.03 of this Agreement, shall survive the Effective Time. All
other representations, warranties, agreements and covenants shall be deemed to
be conditions of the Agreement and shall not survive the Effective Time.
Section 10.03 Waiver; Amendment. Prior to the Effective Time, any provision of
this Agreement may be (i) waived in writing by the party benefited by the
provision or (ii) amended or modified at any time by an agreement in writing
between the parties hereto except that, after the vote by the stockholders of
Seller, no amendment or modification may be made that would reduce the amount or
alter or change the kind of consideration to be received by holders of Seller
Common Stock or contravene any provision of the DGCL or the federal banking
laws, rules and regulations.
Section 10.04 Counterparts. This Agreement may be executed in counterparts each
of which shall be deemed to constitute an original, but all of which together
shall constitute one and the same instrument.
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Agreement and Plan of Merger - Hardin Bancorp, Inc. October 25, 2000
Section 10.05 Governing Law. This Agreement shall be governed by, and
interpreted in accordance with, the laws of the State of Delaware, without
regard to conflicts of laws principles.
Section 10.06 Expenses. Each party hereto will bear all expenses incurred by it
in connection with this Agreement and the transactions contemplated hereby.
Section 10.07 Notices. All notices, requests, acknowledgments and other
communications hereunder to a party shall be in writing and shall be deemed to
have been duly given when delivered by hand, overnight courier or facsimile
transmission (confirmed in writing) to such party at its address or facsimile
number set forth below or such other address or facsimile transmission as such
party may specify by notice (in accordance with this provision) to the other
party hereto.
If to Seller, to:
Robert W. King, President and CEO
Hardin Bancorp, Inc.
201 Northeast Elm Street
Hardin, Missouri 64035
With copies to:
Robert I. Lipsher, Esq.
Luse Lehman Gorman Pomerenk & Schick, P.C.
5335 Wisconsin Avenue, N.W.
Suite 400
Washington, D.C. 20015
If to Buyer, to:
Rick L. Smalley, Co-CEO and President and
David M. Seymour, Co-CEO
Dickinson Financial Corporation
1100 Main Street, Suite 350
Kansas City, Missouri 64105
Fax (816) 472-5211
With copies to:
Amy Dickinson Holewinski, Esq.
Dickinson Financial Corporation
1100 Main Street, Suite 350
Kansas City, Missouri 64105
Fax (816) 472-5211
Section 10.08 Entire Agreement, Etc. This Agreement, together with the
Disclosure Letters, represents the entire understanding of the parties hereto
with reference to the transactions contemplated hereby and supersedes any and
all other oral or written agreements heretofore made. All terms and provisions
of this Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors and assigns. Except for Section
5.12 which confers rights on the parties described therein, nothing in this
Agreement is intended to confer upon any other person any rights or remedies of
any nature whatsoever under or by reason of this Agreement.
Section 10.09 Specific Performance. Buyer and Seller agree that the franchise
value of Seller S&L represents a unique asset and that the failure of either
party to perform the terms of this Agreement would cause irreparable harm for
which monetary damages would be totally
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Agreement and Plan of Merger - Hardin Bancorp, Inc. October 25, 2000
inadequate. Therefore, either party shall be entitled to specific performance of
the terms of this Agreement. Nothing contained in this Agreement, however, shall
be deemed as granting to Buyer control over Seller or Seller S&L until such time
as the Requisite Regulatory Approvals have been granted. Until the Requisite
Regulatory Approvals have been received, a breach of this Agreement by either
party may be remedied only by an action for money damages.
Section 10.10 Successors and Assigns; Assignment. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns; provided, however, that this Agreement may not be
assigned by either party hereto without the written consent of the other party.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the date first above written.
DICKINSON FINANCIAL CORPORATION
By: /s/ Rick L. Smalley
----------------------------
Name: Rick L. Smalley
--------------------------
Title: President
-------------------------
HARDIN BANCORP, INC.
By: /s/ Robert King
--------------------------
Name: Robert King
-------------------------
President
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Agreement and Plan of Merger - Hardin Bancorp, Inc. October 25, 2000
EXHIBIT A
DIRECTORS AND OFFICERS OF SURVIVING CORPORATION
Name Position
Ann K. Dickinson Chairman and Director
Paul H. Shepherd Vice Chairman, General Counsel & Director
Rick L. Smalley President, Co-CEO, COO & Director
David M. Seymour Executive Vice President, Co-CEO & Director
Amy Dickinson Holewinski Vice President and Director
Daniel L. Dickinson Vice President and Director
Robinette R. Spooner Secretary
Dennis P. Ambroske Treasurer
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Agreement and Plan of Merger - Hardin Bancorp, Inc. October 25, 2000
EXHIBIT B
LEGAL OPINION OF COUNSEL TO SELLER
1. Seller is a corporation validly existing and in good standing under
the laws of the State of Delaware and is registered as a savings and loan
holding company under the Home Owners' Loan Act, as amended.
2. Seller S&L is a stock savings association validly existing under the
laws of the United States of America.
3. (i) The authorized capital stock of Seller consists of 3,500,000
shares of Seller Common Stock, par value $.01 per share, and 500,000 shares of
preferred stock, par value $.01 per share. As of the date of this Agreement (A)
1,058,000 shares of Seller Common Stock had been issued, of which 731,453 shares
were issued and outstanding, (B) no shares of Seller preferred stock were issued
and outstanding, and (C) 326,547 shares of Seller Common Stock were held by
Seller in its treasury or by its Subsidiaries. The authorized capital stock of
Seller S&L consists of 3,500,000 shares of common stock, par value $.01 per
share, and 500,000 shares of preferred stock. As of the date of this Agreement,
1,058,000 shares of such common stock were outstanding, no shares of such
preferred stock were outstanding and all outstanding shares of such common stock
were, and as of the Effective Time will be, owned both legally and beneficially
by Seller. All outstanding shares of capital stock of Seller are duly authorized
and validly issued, fully paid and nonassessable and not subject to any
preemptive rights and, with respect to shares of Seller held by Seller in its
treasury or by its Subsidiaries and shares of Seller S&L, are free and clear of
all liens, claims, encumbrances or restrictions (other than those imposed by
applicable federal and state securities laws), and to counsel's actual knowledge
there are no agreements or understandings with respect to the voting or
disposition of any such shares. (ii) To counsel's actual knowledge, no bonds,
debentures, notes or other indebtedness having the right to vote on any matters
on which stockholders may vote of Seller are issued or outstanding.
4. The execution, delivery and performance by Seller of the Merger
Agreement is within Seller's corporate power and authority and have been duly
authorized by all necessary actions on the part of Seller, Seller's
shareholders, and the Office of Thrift Supervision.
5. The Merger Agreement constitutes the valid and binding obligation of
Seller, enforceable against Seller in accordance with its terms (subject to
customary qualifications).
6. The execution, delivery and performance of the Merger Agreement by
Seller will not constitute (i) a violation of applicable provisions of statutory
law or regulation or any judgment, decree or order disclosed in Seller's
Disclosure Letter to which Seller or any of its Subsidiaries is subject or (ii)
a violation of the certificate of incorporation or bylaws of Seller or the
similar organizational documents of any of its Subsidiaries.
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Exhibit C
AGREEMENT TO MERGE
Between
BANK MIDWEST, NATIONAL ASSOCIATION
And
HARDIN FEDERAL SAVINGS BANK
Under the charter of
BANK MIDWEST, NATIONAL ASSOCIATION (No. 22015)
under the title of
BANK MIDWEST, NATIONAL ASSOCIATION
THIS AGREEMENT (the "MergerAgreement") is entered into by the following
associations:
Bank Midwest, National Association, (Buyer Bank), a banking association
organized under the laws of the United States of America, located at 1100 Main
Street, Kansas City, Jackson County, Missouri 64105, with a capital of $30
million, divided into 300,000 shares of common stock, each of $100 par value,
surplus of $________ million, undivided profits and capital reserves of $_______
million, as of ____________, 2000;
Hardin Federal Savings Bank ("Seller S&L"), a savings and loan association
organized under the laws of the United States of America, located at 201 N.E.
Elm Street, Hardin, ______ County, Missouri 64035, with a capital of $_________,
divided into _________ shares of common stock, each of $.01 par value, surplus
of $__________, undivided profits and capital reserves of $_________, as of
_____________, 2000;
Each of the constituent associations is acting pursuant to a resolution of its
board of directors, adopted by the vote of a majority of its directors in the
case of Buyer Bank, and a two-thirds vote in the case of Seller S&L, pursuant to
the authority given by and in accordance with the provisions of the Act of
November 7, 1918, as amended (12 USC ss.215(a) and (c)).
IN CONSIDERATION of the recitals above, of the mutual covenants and
agreements set forth below, of One Dollar in hand paid by each party to the
other, and of other good and valuable consideration, the receipt and sufficiency
of which is acknowledged by each party, the parties agree as follows, intending
to be legally bound:
<PAGE>
1. NATURE OF TRANSACTION. Upon the effective time of the merger, and
subject to all the terms and conditions of this agreement, Seller S&L will be
merged into Buyer Bank under the charter of Buyer Bank.
2. NAME OF RESULTING ASSOCIATION. The name of the resulting association
(the "Association") shall be Bank Midwest, National Association.
3. BUSINESS OF ASSOCIATION. The business of the Association shall be
that of a national banking association. This business shall be conducted by the
Association at its main office, which shall be located at 1100 Main Street,
Kansas City, Missouri 64105, and at its legally established branches.
4. CAPITAL STOCK. The amount of the capital stock of the Association
after consummation of the merger shall be $____ million, divided into 300,000
shares of common stock, each of $100 par value, and at the time the merger shall
become effective, the Association shall have surplus of not less than $___
million, and undivided profits, including capital reserves, which when combined
with the capital and surplus will be equal to the combined capital structures of
the merging associations as stated in the preamble of this agreement, adjusted
however, for normal earnings and expenses (and if applicable, any purchase
accounting adjustments) between ________, 2000 and the effective date of the
merger.
5. VESTING OF ASSETS AND LIABILTIES. Upon the effective date of the
merger, and subject to all the terms and conditions of this agreement, all
assets of Seller S&L as they exist on the effective date of the merger shall
pass to and vest in Buyer Bank without any conveyance or other transfer, and
Buyer Bank shall be responsible thereafter for all of the liabilities of Seller
S&L of every kind and description, including liabilities arising from the
operation of a trust department of each of the merging associations, as they
exist on the effective date of the merger.
6. LIQUIDATION ACCOUNT. For purposes of granting a limited priority
claim to the assets of the Association in the unlikely event (and only upon such
event) of a complete liquidation of the Association to persons who continue to
maintain savings accounts with the Association after the Bank Merger, and who,
immediately prior to the Merger had a subaccount balance (as described in 12
C.F.R. ss. 563b.3(f)(4)) with respect to any liquidation account of Seller S&L,
the Association shall, at the time of the Bank Merger, establish a liquidation
account(s) in an amount equal to the liquidation account(s) of Seller S&L
immediately prior to the Effective time of the merger, which liquidation
account(s) shall participate pari passu with any other liquidation accounts of
the Association. If the balance in any savings account to which a subaccount
balance relates at the close of business on the last day of any fiscal year of
the Association after the effective time of the merger is less than the balance
in such savings account at the effective time of the merger or at the close of
business on the last day of any other fiscal year of the Association after the
effective time of the merger, such subaccount balance shall be reduced in an
amount proportionate to the reduction in such savings account balance. No
subaccount balance shall be increased, notwithstanding any increase in the
<PAGE>
balance of the related savings account. If such related savings account is
closed, such subaccount shall be reduced to zero upon such closing. In the event
of a complete liquidation of the Association, and only in such event, the amount
distributable to each account holder will be determined in accordance with the
OTS rules and regulations pertaining to conversions by savings and loan
associations from mutual to stock form of organization, on the basis of such
account holder's subaccount balance with the Association at the time of its
liquidation. No merger, consolidation, purchase of bulk assets with assumption
of savings accounts and other liabilities, or similar transaction, whether or
not the Association is the surviving institution, will be deemed to be a
complete liquidation for this purpose, and, in any such transaction, the
liquidation account shall be assumed by the surviving institution.
7. CONVERSION OF SHARES--MERGER. Upon the effective date of the merger,
subject to all the terms and conditions of this agreement, the existing common
stock of the constituent associations shall be converted into new stock of Buyer
Bank on a book value to book value basis, adjusted to result in 300,000 shares
of the resulting Association outstanding, as follows:
7.1 SELLER S&L SHARES. Each outstanding share of Seller S&L
shall be converted into _________ new shares of Buyer Bank, rounded to the
nearest whole share without payment for any fractional shares upon consummation
of this merger.
7.2 BUYER BANK SHARES. Each share of Buyer Bank shall be
converted into ____________ new shares of Buyer Bank, rounded to the nearest
whole share without payment for any fractional shares upon consummation of this
merger.
8. BOARD OF DIRECTORS. The present board of directors of Buyer Bank
(named on Exhibit A) shall serve as the board of directors of the Association
until the next annual meeting or until such time as their successors have been
elected and have qualified.
9. ARTICLES OF ASSOCIATION. The Articles of Association attached as
Exhibit B shall be the Articles of the resulting Association.
10. EFFECTIVE TIME OF MERGER. This merger shall become effective on the
date and time specified in a merger approval to be issued by the Comptroller of
the Currency of the United States of America ("OCC").
11. CONDITIONS PRECEDENT. The respective obligations of each party to
effect the merger shall be subject to the satisfaction of the following
conditions:
11.1 Consummation of the Holding Company Merger. A merger
between Hardin Bancorp, Inc. ("Seller") and an acquisition subsidiary of
Dickinson Financial Corporation ("Acquisition Sub"), shall have been consummated
in accordance with the Agreement and Plan of Merger, dated as of October ___,
2000 (the "Holding Company Merger Agreement"), by and between Seller and
Dickinson Financial Corporation.
<PAGE>
11.2 Stockholder Approvals. This Agreement and the
transactions contemplated hereby shall have been duly approved, ratified and
confirmed by the unanimous written consent of the stockholders of Buyer Bank and
Seller S&L.
11.3 Other Approvals and Notifications. The enforceability
of all aspects of this agreement are subject to the express condition precedent
that the required approvals and clearances of all state and federal regulatory
agencies must be received regarding all transactions contemplated by or
associated with this agreement, or any other applicable federal or state
regulators, and all applicable waiting periods must have expired without
regulatory or legal challenge of the planned transactions.
11.4 No Injunctions or Restraints; Illegality. No order,
injunction or decree issued by any court or agency of competent jurisdiction or
other legal restraint or prohibition preventing the consummation of the merger
shall be in effect.
12. TERMINATION OF AGREEMENT. This agreement may be terminated as
follows:
12.1 Termination of Holding Company Merger Agreement. This
Agreement shall be terminated immediately and without any further action on the
part of Seller S&L or Buyer Bank upon any termination of the Holding Company
Merger Agreement.
12.2 Mutual Agreement. The parties to this agreement may
terminate the agreement by mutual agreement of Seller S&L and Buyer Bank at any
time.
12.3 Regulatory Disapproval. Either party may terminate this
agreement by written notice to the other party if any regulatory agency whose
approval is required disapproves this transaction, unless an appropriate appeal
or challenge to the disapproval is initiated within 30 days after the
disapproval and pursued diligently, to a conclusion.
12.4 Lapse of Time. Either party may terminate this agreement
by written notice to the other party if the transactions contemplated herein
have not been approved on or before May 31, 2001.
12.5 Effect of Termination. In the event of termination of
this Agreement as provided herein, this Agreement shall forthwith become void
and there shall be no liability or obligation under this Agreement on the party
of Seller S&L, Buyer Bank or their respective officers, directors or affiliates,
except that no party shall be relieved or released from any damages or
liabilities arising out of any willful breach of this Agreement.
<PAGE>
13. AMENDMENT. This agreement may be amended by the parties hereto in
writing signed on behalf of each of the parties hereto.
14. MISCELLANEOUS. a) Neither this Agreement or any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto without the prior written consent of the other party. b) This agreement
may be executed in one or more counterparts, all of which together shall
constitute one and the same instrument. c) Headings are inserted into this
agreement for convenience only and shall not be considered in construing any
provision. d) This agreement has been negotiated and executed in, and shall be
performed in, the State of Missouri and shall be governed by its internal laws,
except to the extent that federal banking law controls. e) Except as provided
herein, each party shall pay its own professional expenses for any advisers
required for the execution of this agreement. f) Any notice required by this
agreement shall have been properly given if, and shall be effective when,
personally delivered, sent by certified mail or nationally-known private
overnight carrier, or transmitted by facsimile or telegraph, postage or
transmission costs pre-paid, to the address of the party to receive the notice
as given at the beginning of the agreement. g) This agreement constitutes the
entire agreement of the parties and supercedes all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter hereof. h) Time shall be of the essence in the performance of
this agreement, but no delay in enforcing any right or remedy under this
agreement shall be construed to be a waiver of that or any other right or
remedy. i) The provisions of this agreement are separable. The invalidity or
illegality of any provision shall not be a bar to the enforcement of any other
provision. j) All exhibits and attachments to this agreement are incorporated
into the agreement by reference as if fully set forth herein. k) This agreement
may be adopted, certified and executed in separate counterparts, each of which
shall be considered one and the same agreement and shall become effective when
all counterparts have been signed by each of the parties and delivered to the
other party, it being understood that both parties need not sign the same
counterpart.
<PAGE>
IN WITNESS WHEREOF, the signatures and seals of the merging
associations this _____ day of ________, 2000, each set by its president or a
vice president and attested to by its cashier or secretary, pursuant to a
resolution of its board of directors, acting by a majority vote in the case of
Buyer Bank, and a two-thirds vote in the case of Seller S&L.
Attest: BANK MIDWEST, NATIONAL ASSOCIATION
By:__________________________________
David M. Seymour, President
-----------------
Secretary
Attest: HARDIN FEDERAL SAVINGS BANK
By:__________________________________
Robert King, President
------------------
Secretary
STATE OF ________________)
)ss:
COUNTY OF _______________)
On this ______ day of ________, 2000, before me, a notary public for this state
and county, personally came David M. Seymour, as president, and
__________________ as secretary, of Bank Midwest, National Association, and each
in his/her capacity acknowledged this instrument to be the act and deed of the
association.
WITNESS my official seal and signature this day and year aforesaid.
_________________________________
(Seal of Notary) Notary Public, ___________ County
My commission expires ___________
STATE OF ________________)
)ss:
COUNTY OF _______________)
On this ______ day of ________, 2000, before me, a notary public for this state
and county, personally came Robert King, as president, and __________ as
secretary, of Hardin Federal Savings Bank, and each in his/her capacity
acknowledged this instrument to be the act and deed of the association.
WITNESS my official seal and signature this day and year aforesaid.
_________________________________
(Seal of Notary)
Notary Public, ___________ County
My commission expires ___________
