AGREEMENT AND PLAN OF MERGER

Exhibit 10.23

A GREEMENT AND P LAN OF M ERGER

by and among

American Access Technologies, Inc.,

AAT Merger Sub, Inc.,

and

M & I Electric Industries, Inc.

Dated as of December 1, 2006

Table of Contents

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ii

Exhibits

Exhibit A – M & I Stockholder Voting Agreements

Exhibit B – AAT Stockholder Voting Agreements

Exhibit C – Exchange Ratio

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AGREEMENT AND PLAN OF MERGER

THIS AGREEMENT AND PLAN OF MERGER (the "Agreement"), made this 1st day of December 2006, by and among AMERICAN ACCESS TECHNOLOGIES, INC., a Florida corporation, ("AAT"), AAT MERGER SUB, INC., a Florida corporation and a wholly-owned subsidiary of AAT ("Merger Sub") and M & I ELECTRIC INDUSTRIES, INC., a Texas corporation ("M & I").

RECITALS

WHEREAS, the Boards of Directors of AAT, Merger Sub and M & I have deemed it advisable and in the best interests of their respective corporations and stockholders that AAT and M & I consummate the business combination and other transactions provided for herein in order to advance their respective long-term strategic business interests and stockholder value.

WHEREAS, the Boards of Directors of AAT, Merger Sub and M & I have approved this Agreement and the transactions contemplated hereby, including the Merger (as defined in Section 1.1).

WHEREAS, the Board of Directors of M & I has resolved to recommend to its stockholders the approval and adoption of this Agreement and the Merger provided hereby.

WHEREAS, the Board of Directors of AAT has resolved to recommend to its stockholders the approval of the issuance of AAT Common Stock (as defined in Section 2.1(a)) in connection with the Merger provided hereby, the resulting change of control of AAT and such other actions as contemplated by this Agreement.

WHEREAS, AAT as the sole stockholder of Merger Sub, has approved this Agreement and the Merger provided hereby.

WHEREAS, for federal income tax purposes, it is intended by the parties hereto that the Merger qualify as a reorganization within the meaning of Section 368(a) of the Internal Revenue Code of 1986, as amended (the "Code"), and the rules and regulations promulgated thereunder (the "Treasury Regulations"), and that this Agreement constitute a plan of reorganization within the meaning of Section 368 of the Code and such Treasury Regulations.

WHEREAS , in order to induce AAT to enter into this Agreement and to cause the Merger to be consummated, certain stockholders of M & I have executed voting agreements in favor of AAT concurrently with the execution and delivery of this Agreement in the form substantially attached hereto as Exhibit A (the "M & I Stockholder Voting Agreements").

WHEREAS , in order to induce M & I to enter into this Agreement and to cause the Merger to be consummated, certain stockholders of AAT have executed voting agreements in favor of M & I concurrently with the execution and delivery of this Agreement in the form substantially attached hereto as Exhibit B (the "AAT Stockholder Voting Agreements").

NOW, THEREFORE, in consideration of the covenants, promises and representations set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

ARTICLE 1

THE MERGER

1.1 The Merger . Subject to the terms and conditions of this Agreement, at the Effective Time (as defined in Section 1.3), Merger Sub shall be merged with and into M & I (the "Merger") in accordance with this Agreement, the Florida Business Corporation Act (the "FBCA") and the Texas Business Corporation Act (the "TBCA"), and the separate corporate existence of Merger Sub shall thereupon cease. M & I (sometimes hereinafter referred to as the "Surviving Corporation") shall be the surviving corporation in the Merger and shall

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be a wholly-owned, direct subsidiary of AAT. M & I and Merger Sub are the constituent corporations to the Merger. The Merger shall have the effects specified in this Agreement and the applicable provisions of the FBCA and the TBCA.

1.2 The Closing . Subject to the terms and conditions of this Agreement, the closing of the Merger (the "Closing") shall take place (a) at the offices of Andrews Kurth LLP, 600 Travis, Suite 4200, Houston, Texas 77002, at 9:00 a.m., local time, on the first business day immediately following the day on which the last to be fulfilled or waived of the conditions set forth in Article 7 and Article 8 (other than those conditions that by their nature are to be satisfied at the Closing, but subject to fulfillment or waiver of those conditions) shall be fulfilled or waived in accordance herewith or (b) at such other time, date or place as AAT and M & I may agree in writing. The date on which the Closing occurs is hereinafter referred to as the "Closing Date."

1.3 Effective Time . If all the conditions to the Merger set forth in Articles 7 and 8 shall have been fulfilled or waived in accordance herewith and this Agreement shall not have been terminated as provided in Article 9, on the Closing Date, the parties shall cause the Merger to be consummated by filing with the Secretary of State of the State of Texas articles of merger (the "Texas Articles of Merger") meeting the requirements of Article 5.04 of the TBCA and with the Secretary of State of the State of Florida articles of merger (the "Florida Articles of Merger") in accordance with the relevant portions of Florida law. The Merger shall become effective at such time that the parties hereto shall have agreed upon and designated in the Texas Articles of Merger and the Florida Articles of Merger as the effective time of the Merger (the "Effective Time").

1.4 Articles of Incorporation . At the Effective Time, the articles of incorporation of M & I in effect immediately prior to the Effective Time shall be the articles of incorporation of the Surviving Corporation, until duly amended in accordance with applicable law.

1.5 Bylaws . The bylaws of M & I in effect immediately prior to the Effective Time shall be the bylaws of the Surviving Corporation, until duly amended in accordance with applicable law.

1.6 Directors and Officers of Surviving Corporation . The directors and officers of the Surviving Corporation shall consist of the directors and officers of M & I, as it existed immediately prior to the Effective Time, until changed in accordance with applicable law. Each of the members of the Board of Directors of Merger Sub prior to the Effective Time shall tender his or her resignation as a director of Merger Sub, to be effective at the Effective Time.

1.7 Amendment to AAT Certificate of Incorporation and Reverse Split of AAT Common Stock . Immediately prior to the Effective Time, and subject to receipt of the requisite stockholder approval at the AAT Stockholders’ Meeting, AAT shall cause one or more appropriate filings to be made with the Secretary of State of the State of Florida, in the form of Restated Articles of Incorporation of AAT or as a Certificate of Amendment to the existing Articles of Incorporation (in either case, the "AAT Certificate"), whereby, without any further action on the part of AAT, M & I or any stockholder of AAT:

(a) the name of AAT shall be changed to "American Electric Technologies, Inc.," or such name as determined by M & I and AAT (the "AAT Name Change");

(b) the number of authorized shares of the AAT Common Stock shall be increased from 30,000,000 shares to 250,000,000 shares (the "AAT Share Increase");

(c) each share of AAT Common Stock issued and outstanding immediately prior to the filing of the AAT Certificate shall be converted into and become a fractional number of fully paid and nonassessable shares of AAT Common Stock to be determined by AAT and M & I (the "Reverse Stock Split"); and

(d) any shares of AAT Common Stock held as treasury stock or held or owned by AAT immediately prior to the filing of the AAT Certificate shall each be converted into and become an identical fractional number of shares of AAT Common Stock as determined by the Board of Directors of AAT.

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No fractional shares of AAT Common Stock shall be issued in connection with the Reverse Stock Split, and no certificates or scrip for any such fractional share shall be issued. Any holder of AAT Common Stock who would otherwise be entitled to receive a fraction of a share of AAT Common Stock (after aggregating all fractional shares of AAT Common Stock issuable to such holders) shall, in lieu of such fraction of a share and upon the surrender of such holder’s certificate representing such fractional shares of AAT Common Stock, be paid in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying such fraction by the closing price of a share of AAT Common Stock on the Nasdaq Capital Market (or such other Nasdaq market on which the AAT Common Stock then trades) ("Nasdaq") on the date immediately preceding the effective date of the Reverse Stock Split.

ARTICLE 2

CONVERSION OF SHARES

2.1 Effect on Capital Stock . Subject to the terms of this Agreement, at the Effective Time, the Merger shall have the following effects on the capital stock of M & I and Merger Sub, without any action on the part of the holder of any capital stock of M & I or Merger Sub:

(a) Conversion of M & I Common Stock . Subject to the provisions of this Section 2.1, all of the shares of the Series A common stock, $1.00 par value of M & I (the "M & I Series A Common Stock") and the Series B common stock, $1.00 par value of M & I (the "M & I Series B Common Stock"; and together with the M & I Series A Common Stock, the "M & I Common Stock") issued and outstanding immediately prior to the Effective Time shall, by virtue of the Merger and without any action on the part of the holder thereof, be converted into the right to receive the number (the "Exchange Ratio") of validly issued, fully paid and nonassessable shares of the common stock, $0.001 par value, of AAT (the "AAT Common Stock") calculated such that all outstanding shares of the M & I Common Stock immediately prior to the Effective Time shall be entitled to receive, in the aggregate, that number of shares of AAT Common Stock equal to the lesser of (i) the product obtained by multiplying the AAT Fully-Diluted Share Amount (as defined below) by four, or (ii) 32,000,000 shares of AAT Common Stock, in each case subject to cancellation of Excluded M & I Shares as set forth in Section 2.1(b) below, treatment of Dissenting M & I Shares as defined in Section 2.3 below and adjustment as set forth in Section 2.4 below. For purposes hereof, the "AAT Fully-Diluted Share Amount" means a number equal to the sum of: (i) the aggregate number of shares of AAT Common Stock issued and outstanding immediately prior to the Effective Time plus (ii) the aggregate number of shares of AAT Common Stock that would be deemed outstanding for purposes of calculating earnings per share under the treasury stock method described in FAS 128 as a result of any options, warrants, convertible securities or other rights to acquire capital stock of AAT outstanding immediately prior to the Effective Time (provided, however, that in applying the treasury stock method, (A) the average market price shall be the volume weighted average price of the AAT Common Stock on the Nasdaq for the ten (10) trading days ending on (and including) the date which is five (5) trading days prior to the Effective Time, and (B) all such issued and outstanding options, warrants, convertible securities or other rights to acquire capital stock of AAT, whether vested or unvested, shall be deemed vested as of the Effective Time). The Exchange Ratio shall be calculated by AAT and M & I prior to the Effective Time, and such calculation shall be attached hereto as Exhibit C . The AAT Common Stock to be issued upon conversion of the M & I Common Stock pursuant to this Section 2.1 and any cash in lieu of fractional shares to be paid pursuant to Section 2.2(d) hereof are referred to collectively as the "Merger Consideration." The holder of a certificate that represented shares of M & I Common Stock (a "Certificate") shall cease to have any rights with respect thereto, except the right to receive, upon surrender of such Certificate, the Merger Consideration to which such holder is entitled pursuant to this Section 2.1(a). Until surrendered as contemplated by Section 2.2, each Certificate shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the Merger Consideration and such holder shall not be entitled to vote or to any other rights of a stockholder of AAT until after such surrender.

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(b) Cancellation of Excluded M & I Common Shares . All shares of M & I Common Stock that are owned by AAT, Merger Sub, M & I or any direct or indirect Subsidiary of M & I (the "Excluded M & I Common Shares") issued and outstanding immediately prior to the Effective Time shall, by virtue of the Merger and without any action on the part of the holder thereof, no longer be outstanding, shall be cancelled and retired without payment of any consideration therefor and shall cease to exist.

(c) Merger Sub . At the Effective Time, each share of common stock, par value $0.001 per share, of Merger Sub issued and outstanding immediately prior to the Effective Time shall be converted into one validly issued, fully paid and nonassessable share of the M & I Series A Common Stock, of the Surviving Corporation, and the Surviving Corporation shall thereby become a wholly-owned, direct subsidiary of AAT.

• 2.2 Exchange of Certificates for Merger Consideration.

(a) Exchange Procedures . At or prior to the Effective Time, AAT shall deposit with its transfer agent or such other party as may be reasonably satisfactory to AAT and M & I (the "Exchange Agent"), in trust for the benefit of the holders of M & I Common Stock, certificates representing the shares of AAT Common Stock in an amount necessary to effect the conversion of M & I Common Stock into the right to receive the Merger Consideration pursuant to Section 2.1(a). AAT shall make sufficient funds available to the Exchange Agent from time to time as needed to pay cash in respect of (i) dividends or other distributions in accordance with Section 2.2(b) and (ii) fractional shares in accordance with Section 2.2(d). Promptly after the Effective Time, but in no event later than two business days thereafter, AAT shall cause the Exchange Agent to mail to each holder of record of a Certificate as of the Effective Time (other than holders of a Certificate in respect of Excluded M & I Common Shares or Dissenting M & I Shares), (i) a letter of transmittal specifying that delivery of the Certificates shall be effected, and that risk of loss and title to the Certificates shall pass, only upon delivery of the Certificates to the Exchange Agent, such letter of transmittal to be in such form and to have such other provisions as AAT may reasonably determine, and (ii) instructions for exchanging the Certificates and receiving the Merger Consideration to which such holder shall be entitled pursuant to Section 2.1(a). Upon surrender of a Certificate for cancellation to the Exchange Agent together with such letter of transmittal, duly executed, the holder of such Certificate shall be entitled to receive in exchange therefor (i) a certificate representing that number of whole shares of AAT Common Stock that such holder is entitled to receive pursuant to Section 2.1(a) and (ii) a check in the aggregate amount (after giving effect to any required Tax (as defined in Section 3.12) withholdings) of (A) any cash in lieu of fractional shares determined in accordance with Section 2.2(d) plus (B) any cash dividends and any other dividends or other distributions that such holder has the right to receive pursuant to the provisions of this Section 2.2. The Certificate so surrendered shall forthwith be cancelled. No interest will be paid or accrued on any amount payable (for fractional shares, dividends or otherwise) upon surrender of any Certificate. In the event of a transfer of ownership of any shares of M & I Common Stock that occurred prior to the Effective Time, but is not registered in the transfer records of M & I, the Merger Consideration may be issued and/or paid to such a transferee if the Certificate formerly representing such shares of M & I Common Stock is presented to the Exchange Agent, accompanied by all documents required to evidence and effect such transfer and to evidence that any applicable stock transfer Taxes have been paid. If any certificate for shares of AAT Common Stock is to be issued in a name other than that in which the Certificate surrendered in exchange therefor is registered, it shall be a condition of such exchange that the Person (as defined in Section 10.5) requesting such exchange shall pay any transfer or other Taxes required by reason of the issuance of certificates for shares of AAT Common Stock in a name other than that of the registered holder of the Certificate surrendered, or shall establish to the reasonable satisfaction of AAT and the Exchange Agent that such Tax has been paid or is not applicable.

(b) Distributions with Respect to Unexchanged Shares . Whenever a dividend or other distribution is declared by AAT in respect of shares of AAT Common Stock, the record date for which is at or after the Effective Time, that declaration shall include dividends or other distributions in respect of all shares of AAT Common Stock payable as Merger Consideration pursuant to this Agreement. No dividends or other distributions so declared in respect of such AAT Common Stock shall be paid to any holder of any unsurrendered Certificate

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until such Certificate is surrendered for exchange in accordance with this Section 2.2. Subject to the effect of applicable laws, following surrender of any such Certificate, there shall be issued or paid, less the amount of any withholding Taxes that may be required to be deducted therefrom, to the holder of the certificates representing whole shares of AAT Common Stock issued in exchange for such Certificate, without interest, (i) at the time of such surrender, the dividends or other distributions with a record date that is at or after the Effective Time and a payment date on or prior to the date of surrender of such Certificate and not previously paid to such holder and (ii) at the appropriate payment date, the dividends or other distributions payable with respect to such whole shares of AAT Common Stock with a record date at or after the Effective Time but with a payment date subsequent to surrender. No interest shall be payable with respect to any amounts to be paid under this Section 2.2(b). For purposes of dividends or other distributions in respect of shares of AAT Common Stock, all AAT Common Stock payable as Merger Consideration pursuant to the Merger shall be issued and outstanding as of the Effective Time.

(c) Transfers . After the Effective Time, there shall be no transfers on the stock transfer books of M & I of M & I Common Stock that were outstanding immediately prior to the Effective Time.

(d) Fractional Shares . Notwithstanding any other provision of this Agreement, no certificates or scrip for fractional shares of AAT Common Stock shall be issued in the Merger and no AAT Common Stock dividend, stock split, subdivision or interest shall relate to any fractional security, and such fractional interests shall not entitle the owner thereof to vote or to any other rights of a stockholder of AAT. In lieu of any such fractional share (after aggregating all fractional shares of AAT Common Stock to be received by such holder), each holder of M & I Common Stock who would otherwise have been entitled to receive a fraction of a share of AAT Common Stock upon surrender of a Certificate for exchange shall be entitled to receive from the Exchange Agent a cash payment (rounded to the nearest whole cent) equal to such fraction multiplied by the closing price of the AAT Common Stock on Nasdaq for the last trading day immediately prior to the Effective Time. No interest shall be payable with respect to any amounts to be paid under this Section 2.2(d).

(e) Termination of Exchange Period; Unclaimed Merger Consideration . At any time following the first anniversary of the Effective Time, AAT shall be entitled to require the Exchange Agent to deliver to it any remaining portion of the Merger Consideration deposited with the Exchange Agent, and holders of Certificates shall be entitled to look only to AAT (subject to abandoned property, escheat or other similar laws) with respect to the Merger Consideration and any dividends or other distributions with respect thereto issuable or payable pursuant to Section 2.1, Section 2.2(b) and Section 2.2(d) upon due surrender of their Certificates, without any interest thereon. Notwithstanding the foregoing, none of AAT, Surviving Corporation, the Exchange Agent or any other person shall be liable to any holder of a Certificate with regard to AAT Common Stock (or dividends or distributions with respect thereto) delivered to a public official pursuant to any applicable abandoned property, escheat or similar law.

(f) Lost, Stolen or Destroyed Certificates . In the event any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such Certificate to be lost, stolen or destroyed, and if AAT reasonably believes that the Person providing the indemnity is sufficiently creditworthy, the making of a reasonable undertaking to indemnify AAT or M & I, or, if AAT does not so reasonably believe, the posting by such Person of a bond in the form customarily required by AAT to indemnify against any claim that may be made against it with respect to such Certificate, the Exchange Agent will distribute such Merger Consideration, dividends and other distributions in respect thereof issuable or payable in exchange for such lost, stolen or destroyed Certificate pursuant to Section 2.1, Section 2.2(b) and Section 2.2(d), in each case, without interest. Any delivery or surrender for exchange of a Certificate pursuant to this Section 2.2 may be effected (in lieu of such delivery or exchange for surrender of a Certificate) by delivery of an affidavit together with an indemnity undertaking or indemnity bond in accordance with this Section 2.2(f).

(g) Withholding . AAT or the Exchange Agent shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to this Agreement to any holder of M & I Common Stock such

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amounts as AAT or the Exchange Agent is required to deduct and withhold with respect to the making of such payment under the Code, the Treasury Regulations or under any provision of state, local or foreign Tax law. AAT or the Exchange Agent, as the case may be, shall provide any holder of M & I Common Stock the opportunity to provide certification or other proper evidence of exemption from required deduction and withholding within a reasonable amount of time before such deduction and withholding is required. To the extent that amounts are so withheld by AAT or the Exchange Agent, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the M & I Common Stock in respect of when such deduction and withholding was made by AAT or the Exchange Agent.

2.3 Appraisal Rights . Shares of M & I Common Stock outstanding immediately prior to the Effective Time and held by a holder who neither shall have voted in favor of the Merger nor shall have consented thereto in writing and who shall have demanded appraisal for such shares in accordance with the TBCA are referred to herein as "Dissenting M & I Shares." Dissenting M & I Shares shall not be converted into a right to receive the Merger Consideration, unless such holder fails to perfect, withdraws or otherwise loses its right to appraisal. If, after the Effective Time, such holder fails to perfect, withdraws or loses its right to appraisal, such shares shall be treated as if they had been converted at the Effective Time into the right to receive the Merger Consideration. M & I shall give AAT prompt notice of any demands received by M & I for appraisal of M & I Common Stock. Except as required by applicable law or with the prior written consent of AAT, M & I shall not make any payment with respect to, or settle or offer to settle, any such demands.

2.4 Adjustments . If there shall have been declared or effected a stock split, subdivision, reverse stock split (including the Reverse Stock Split), consolidation and division, stock dividend or stock distribution (including any dividend or distribution of securities convertible into AAT Common Stock or M & I Common Stock), reorganization, recapitalization, reclassification or similar event made with respect to AAT Common Stock and M & I Common Stock, the Merger Consideration shall be adjusted to reflect, and the Exchange Ratio to be set forth on Exhibit C shall reflect, fully the appropriate effect of such event.

2.5 Exemption from Registration . The parties hereto intend that the AAT Common Stock to be issued to the M & I stockholders in the Merger shall be exempt from the registration requirements of the Securities Act of 1933, as amended (the "Securities Act"), pursuant to Rule 506 of Regulation D, and the certificates representing such shares shall contain an appropriate legend restricting transfer without compliance with applicable securities laws and a stop transfer order will be placed against the shares with AAT’s transfer agent.

ARTICLE 3

REPRESENTATIONS AND WARRANTIES OF M & I

Except as otherwise specifically set forth in the M & I Due Diligence Disclosure Manual, dated as of the date of this Agreement (the "M & I Disclosure Manual") delivered by M & I to AAT on the date hereof, M & I hereby represents and warrants to AAT that:

3.1 Organization, Operation, Standing and Power . M & I conducts its business directly and through the corporations, limited liability companies, partnerships, joint ventures and other entities listed on Section 3.1 of the M & I Disclosure Manual (referred to collectively as the "Subsidiaries" and individually as a "Subsidiary") and through the corporations, limited liability companies, partnerships, joint ventures and other entities listed on Section 3.2(a) of the M & I Disclosure Manual (referred to collectively as the "Equity Investees" and individually as an "Equity Investee"). Each of M & I and each of its Subsidiaries is duly incorporated or formed, as applicable, validly existing and in good standing under the laws of the jurisdiction in which it is organized and has, as applicable, full corporate, limited liability company or partnership power and authority to enable it to own, lease or otherwise hold its properties and assets and to conduct its businesses as presently conducted. M & I and each of its Subsidiaries is duly qualified to do business in each jurisdiction where the nature of its business or

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ownership or leasing of its properties make such qualification necessary or the failure to so qualify has not had or would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. Section 3.1 of the M & I Disclosure Manual contains a complete and accurate list for M & I and each of its Subsidiaries of its name, legal form and jurisdiction of its incorporation or organization, other jurisdictions in which it is authorized to do business, and its capitalization (including the identity of each stockholder or other equity owner and the number of shares or the nature of the equity interest held by each). M & I has delivered to AAT true and complete copies of the articles of incorporation of M & I, as amended to the date of this Agreement (as so amended, the "M & I Charter"), and the By-laws of M & I, as amended to the date of this Agreement (as so amended, the "M & I By-laws"), and the comparable charter and organizational documents of each Subsidiary, in each case as amended through the date of this Agreement.

• 3.2 Subsidiary Operations and Equity Interests .

(a) Except for its Subsidiaries and for the Equity Investees listed on Section 3.2(a) of the M & I Disclosure Manual, M & I does not conduct any of its business and operations through any other entity. Section 3.2(a) of the M & I Disclosure Manual contains a complete and accurate list for each of the Equity Investees of its name, legal form and jurisdiction of its incorporation or organization, other jurisdictions in which it is authorized to do business and, the equity interest of M & I in such Equity Investee. M & I has delivered to AAT true and complete copies of the organizational documents of each Equity Investee, in each case as amended through the date of this Agreement.

(b) All the outstanding shares of capital stock or other equity interests of each Subsidiary and all of the outstanding shares of capital stock or other equity interests held by M & I in each Equity Investee have been validly issued and are fully paid and nonassessable and are owned by M & I, by another Subsidiary or by M & I and another Subsidiary, free and clear of all pledges, liens, voting agreements, proxies, transfer restrictions, charges, mortgages, encumbrances and security interests of any kind or nature whatsoever, except for restrictions imposed by applicable securities laws or their respective charter documents.

3.3 Capital . The authorized capital stock of M & I consists of 999,000 shares of Series A Common Stock and 1,000 shares of Series B Common Stock. As of the date hereof, 248,610 shares of M & I Series A Common Stock and 250 shares of M & I Series B Common Stock are issued and outstanding. The issued and outstanding M & I Common Stock owned of record and beneficially by the M & I stockholders is set forth in Section 3.1 of the M & I Disclosure Manual. All the issued and outstanding shares of M & I capital stock have been duly authorized and validly issued and are fully paid, nonassessable and were not issued in violation of statutory preemptive rights and contractual stockholder preemptive rights, with no personal liability attaching to the ownership thereof and have been issued, in all material respects, in compliance with any applicable securities laws. Except as set forth in Section 3.3 of the M & I Disclosure Manual, M & I does not have and is not bound by any outstanding subscriptions, options, voting trusts, convertible securities, warrants, calls, commitments or agreements of any character or kind calling for the purchase, issuance or grant of any additional shares of its capital stock or restricting the transfer of its capital stock. Except as set forth in Section 3.3 of the M & I Disclosure Manual and except for the M & I Stockholder Voting Agreements, neither M & I nor any of its stockholders is a party to any voting trust or other agreement or understanding with respect to the voting of the capital stock or other equity securities of M & I.

• 3.4 Authority; No Violation .

(a) M & I has full corporate power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly approved by the Board of Directors of M & I and no other corporate proceedings on the part of M & I or any of its Subsidiaries are necessary to approve this Agreement and to consummate the transactions contemplated hereby other than the affirmative vote of the M & I stockholders for the Merger. This Agreement has been duly and validly executed and delivered by M & I and

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(assuming due authorization, execution and delivery by AAT and Merger Sub) constitutes a valid and binding obligation of M & I, enforceable against M & I in accordance with its terms subject to (i) applicable bankruptcy, insolvency, reorganization, moratorium, and similar laws affecting creditors’ rights generally and (ii) equitable principles which may limit the availability of certain equitable remedies (such as specific performance) in certain instances.

(b) Neither the execution and delivery of this Agreement by M & I, nor the consummation of the Merger, nor compliance by M & I with any of the terms or provisions hereof, will, except as set forth in Section 3.4(b) of the M & I Disclosure Manual, (i) violate any provision of the M & I Charter or M & I By-Laws, (ii) subject to obtaining the approval and adoption of this Agreement and approval of the Merger by M & I’s stockholders, violate any statute, code, ordinance, rule, regulation, judgment, order, writ, decree or injunction applicable to M & I or any of its Subsidiaries or any of their respective properties or assets or (iii) violate, conflict with, result in a breach of any provision of or the loss of any benefit under, constitute a default (or an event that, with notice or lapse of time, or both, would constitute a default) under, result in the termination of or a right of termination or cancellation under, accelerate the performance required by, accelerate any right or benefit provided by, or result in the creation of any lien or encumbrance upon any of the respective properties or assets of M & I or any of its Subsidiaries under, any of the terms, conditions or provisions of any agreement, except for such violations, conflicts, breaches, losses, defaults, terminations, cancellations, accelerations or liens that, either individually or in the aggregate, would not have a Material Adverse Effect on M & I.

• 3.5 Financial Statements and Records .

(a) M & I has delivered to AAT (i) the financial statements of M & I set forth in Section 3.5 of the M & I Disclosure Manual, which consist of (A) the unaudited consolidated balance sheet as at December 31, 2003 and the related statement of income, change in stockholders’ equity and cash flow for the fiscal year ended December 31, 2003, (B) audited consolidated balance sheets of M & I as at December 31, 2004 and 2005, and the related audited consolidated statements of income, changes in stockholders’ equity, and cash flow for each of the fiscal years then ended, together with the report thereon of M & I’s independent registered public accountants, and (C) an unaudited consolidated balance sheet of M & I as at September 30, 2006 (the "Interim Balance Sheet") and the related unaudited consolidated statements of income, changes in stockholders’ equity, and cash flow for the nine months ended September 30, 2005 and 2006, including in each case the notes thereto. Each of the balance sheets contained in or incorporated by reference into any such M & I financial statements (including the related notes and schedules thereto) delivered and to be delivered to AAT will fairly present, in all material respects, the financial position of the entity or entities to which it relates as of its date, and each of the statements of income and changes in stockholders’ equity and cash flows (including any related notes and schedules thereto) will fairly present, in all material respects, the results of operations, changes in stockholders’ equity and cash flows, as the case may be, of M & I and its Subsidiaries, in each case in accordance with GAAP consistently applied during the periods involved, except, in each case, as may be noted therein, subject to normal year-end audit adjustments in the case of unaudited interim financial statements.

(b) M & I and each of its Subsidiaries maintains a system of internal accounting controls sufficient to provide reasonable assurances that: (i) transactions are executed in accordance with management’s general or specific authorization; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP or any other criteria applicable to such statements and to maintain accountability for assets; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences; provided, however, that M & I has neither adopted, nor has it conducted an evaluation of compliance of M & I’s internal accounting controls with, the Internal Control Framework developed by the Committee of Sponsoring Organizations of the Treadway Commission.

(c) Since January 1, 2004, neither M & I nor, to M & I’s knowledge, any director, officer, employee, auditor, accountant or representative of M & I or any of its Subsidiaries has received or otherwise had or obtained knowledge of (i) any significant deficiencies in the design or operation of M & I’s internal controls

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which could reasonably be expected to adversely affect the ability of M & I to record, process, summarize and report financial data, (ii) any material weakness in its internal controls, or (iii) any fraud that involves management or other employees who have a significant role in the internal controls of M & I.

3.6 Real Property—Owned . Section 3.6 of the M & I Disclosure Manual contains a complete and accurate list of all real estate owned by M & I or any of its Subsidiaries, and except as set forth on Section 3.6 of the M & I Disclosure Manual or as would not have a Material Adverse Effect, M & I and the Subsidiaries have good and marketable title to the real estate owned and listed on Section 3.6 of the M & I Disclosure Manual, in each case free and clear of all liens other than Permitted Encumbrances. For each owned property such list sets forth the address of each such property, the owner of the property, the use of the property and the name of the party utilizing the property, the amount of land included in the property, the square footage of any buildings on the property and the details of any mortgages, encumbrances, trust deeds, etc., on each property including the principal balance of the mortgages as of a recent date and the name of the secured party and payment terms on the mortgages. There exists no legal or administrative proceeding to which M & I is a party or court order, building code provision, deed restriction, or restrictive covenant (recorded or otherwise), or other private or public limitation, which might in any way impede or adversely affect the continued use of the said real estate in the manner it is currently used, except for such court order, building code provision, deed restriction, restrictive covenant, or other private or public limitation that, either individually or in the aggregate, would not have a Material Adverse Effect on M & I.

3.7 Real Property—Not Owned . Section 3.7 of the M & I Disclosure Manual contains a complete and accurate list of all real estate leased or otherwise utilized by M & I or any of its Subsidiaries. For each leased property such list sets forth the address of each such property, the owner of the property, the use of the property and the name of the party utilizing the property, the details of any lease or other agreements for the property, including the amount of the monthly lease and other amounts payable by M & I and its Subsidiaries for each such property, the termination date of the lease or other arrangement under which the property is used and any rights to renew or extend such occupancy, and, to the extent reasonably available to M & I, the size of the land included in the property and the size of any buildings on the property.

3.8 Adequacy of Facilities; Title to Assets . The buildings, plants, structures, and equipment of M & I and each Subsidiary: (a) are structurally sound and in good operating condition and repair, subject to ordinary wear and tear, (b) are adequate for the uses to which they are being put, (c) are not in need of maintenance or repairs except for ordinary, routine maintenance and repairs that are not material in nature or cost, (d) are sufficient for the continued conduct of their businesses, and (e) conform in all material respects to applicable federal, state and local laws and regulations (including, but not limited to, those relating to environmental protection, occupational safety and health) and except as otherwise set forth in Section 3.8 of the M & I Disclosure Manual, M & I and each Subsidiary, respectively, have good and marketable title to, or, in the case of leased properties and assets, valid leasehold interests in, all assets reflected in the M & I Interim Balance Sheet (except for inventory sold or otherwise disposed of in the ordinary course of business since the date of the M & I Interim Balance Sheet), and all other assets reflected in the books and records of M & I or any M & I Subsidiary as being owned by M & I or such M & I Subsidiary. Except as set forth on Section 3.8 of the M & I Disclosure Manual, all such assets are owned by M & I or an M & I Subsidiary free and clear of any liens and encumbrances, except for Permitted Encumbrances.

3.9 Personal Property—Leased or Not Owned . Section 3.9 of the M & I Disclosure Manual contains a list and brief description of all leases and other agreements under which M & I and each of its Subsidiaries is lessee of or holds or operates any material items of machinery, equipment, vehicles, office furniture or fixtures owned by any third party, including the identity or the owner or lessor of the property, the monthly rent or other consideration payable for use of the property, the termination date of each such lease or other agreement. M & I has provided to AAT true and correct copies of such leases or agreements. Except as set forth on Section 3.9 of the M & I Disclosure Manual, each of such leases and agreements is in full force and effect and constitutes a legal, valid and binding obligation of M & I and, to the knowledge of M & I, the other parties thereto, and there is no default or basis therefor by M & I, or to the knowledge of M & I, any other parties to said leases.

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• 3.10 Contracts and Agreements .

(a) The following subsections of Section 3.10 of the M & I Disclosure Manual contains a list, and M & I has provided to AAT true and correct copies, of all the following agreements, arrangements, and understandings (written or oral, formal or informal) (collectively, for purposes of this Section 3.10, the "M & I Agreements") to which M & I or any of the Subsidiaries is a party or by which M & I or any of the Subsidiaries or any of their respective properties is otherwise bound and pursuant to which M & I or any of the Subsidiaries has continuing liabilities, obligations or rights:

• (i) collective bargaining agreements and similar agreements with employees as a group;

  (ii) employee benefit agreements, trusts, plans, funds, or other similar arrangements of any nature;

  (iii) agreements with any current or former stockholder, director, officer, employee, consultant, or advisor or any affiliate of any such person;

  (iv) agreements between or among M & I and any of the Subsidiaries and their affiliates and agreements between M & I and any of the Equity Investees;

  (v) indentures, mortgages, security agreements, notes, loan or credit agreements, or other agreements relating to the borrowing of money in excess of $1,000,000 or to the direct or indirect guarantee or assumption by M & I or any of the Subsidiaries of any obligation of others, including any agreement that has the economic effect although not the legal form of any of the foregoing;

  (vi) agreements relating to the acquisition or disposition of assets in excess of $1,000,000 individually or in the aggregate, other than those entered into in the ordinary course of business consistent with past practice;

  (vii) agreements relating to the acquisition or disposition of any material interest in any business enterprise;

  (viii) broker, distributor, dealer, manufacturer’s representative, sales, agency, sales promotion, advertising, market research, marketing, consulting, research and development, maintenance, service, and repair agreements, in each case providing for payments in excess of $1,000,000 in any 12- month period;

  (ix) material license, royalty, or other agreements relating to Intellectual Property (other than (A) shrinkwrap and clickwrap agreements and (B) software agreements requiring the payment of less than $25,000);

  (x) partnership, joint venture, and profit sharing agreements;

  (xi) material agreements with any Governmental Authority;

  (xii) agreements in the nature of a settlement or a conciliation agreement arising out of any claim asserted by any other Person and requiring the payment of greater than $100,000 individually or in the aggregate;

  (xiii) agreements containing any covenant limiting the freedom M & I or of any of the Subsidiaries to engage in any line of business or compete with any other entity in any geographic area or during any period of time;

  (xiv) powers of attorney granted by M & I and of the Subsidiaries; and

  (xv) other agreements, whether or not made in the ordinary course of business, that are material to the business, assets, results of operations, condition (financial or otherwise), or prospects of M & I or any of the Subsidiaries considered as a whole.

(b) Each of the M & I Agreements in excess of 2% of M & I’s consolidated revenues ("M & I Material Contracts") is a valid and binding agreement of M & I and the Subsidiaries (to the extent each is a party thereto) and, to the knowledge of M & I, the other party or parties thereto, enforceable against M & I and the Subsidiaries

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(to the extent each is a party thereto) and, to the knowledge of M & I and the Subsidiaries, such other party or parties in accordance with its terms, except that such enforceability may be limited by (i) applicable bankruptcy, insolvency, reorganization, moratorium, and similar laws affecting creditors’ rights generally and (ii) equitable principles which may limit the availability of certain equitable remedies (such as specific performance) in certain instances. None of M & I and the Subsidiaries is in breach of or in default under, nor has any event occurred which (with or without the giving of notice or the passage of time or both) would constitute a default under, any material provision of any of M & I Material Contracts, and none of M & I and its Subsidiaries has received any written notice from, or given any written notice to, any other party indicating that M & I or any of the Subsidiaries is in breach of or in default under any of M & I Material Contracts, except in all such cases for such breaches or defaults that would not, individually or in the aggregate, have a Material Adverse Effect. To M & I’s or the Subsidiaries’ knowledge, no other party to any of M & I Material Contracts is in breach of or in default under such agreements, nor has any assertion been made by any of M & I or the Subsidiaries of any such breach or default. There are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to M & I or any Subsidiary under any current or completed M & I Material Contract and no such party to any such agreements has made written demand for such renegotiation. The consummation of the Merger and transactions related thereto shall not (either alone or upon the occurrence of additional acts or events) result in any payment or payments becoming due from M & I, any M & I Subsidiary, AAT, or any AAT Subsidiary to any Person under any M & I Material Contract or give any Person the right to terminate or alter the provisions of any M & I Material Contract.

• 3.11 Environmental Matters .

(a) Hazardous Material . Except as disclosed on Section 3.11 of the M & I Disclosure Manual, or as may be permitted in accordance with applicable environmental laws, no underground storage tanks and no amount of any substance that has been designated by any Governmental Authority or by applicable federal, state or local law, to be radioactive, toxic, hazardous or otherwise a danger to human health or the environment, including, without limitation, PCBs, asbestos, petroleum, petroleum products, urea-formaldehyde and all substances listed as hazardous substances pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, and analogous State laws, or defined as a hazardous waste pursuant to the Resource Conservation and Recovery Act, as amended, and analogous State laws, and the regulations promulgated pursuant to said laws, but excluding office and janitorial supplies and other materials stored in accordance with applicable environmental laws (a "Hazardous Material"), are present, as a result of the actions of M & I or any of its Subsidiaries, or, to M & I’s and its Subsidiaries’ knowledge, as a result of any actions of any third party or otherwise, in, on or under any property, including the land and the improvements, ground water and surface water thereof, that M & I or any of its Subsidiaries have at any time owned, operated, occupied or leased.

(b) Hazardous Material Activities . Except as would not reasonably be expected to have a Material Adverse Effect on M & I or any Subsidiary, M & I and its Subsidiaries have not transported, stored, used, manufactured, disposed of, released or exposed their employees or others to Hazardous Materials in violation of any law in effect on or before the date hereof, nor has M & I or its Subsidiaries disposed of, transported, sold, or manufactured any product containing a Hazardous Material (collectively, "Hazardous Material Activities") in violation of any rule, regulation, treaty or statute promulgated by any Governmental Authority in effect prior to or as of the date hereof to prohibit, regulate or control Hazardous Materials or any Hazardous Material Activity.

(c) Permits . M & I and its Subsidiaries currently hold all environmental approvals, permits, licenses, clearances and consents (the "M & I Environmental Permits") necessary for the conduct of M & I’s and its Subsidiaries’ Hazardous Material Activities and other businesses of M & I and its subsidiaries as such activities and businesses are currently being conducted, except where the failure to so hold would not reasonably be expected to have a Material Adverse Effect on M & I.

(d) Environmental Liabilities . No material action, proceeding, revocation proceeding, amendment procedure, writ, injunction or claim is pending, or to the knowledge of M & I or its Subsidiaries, threatened

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concerning any M & I Environmental Permit, Hazardous Material or any Hazardous Material Activity of M & I or its Subsidiaries. Neither M & I nor any of its Subsidiaries are aware of any fact or circumstance which could involve M & I or any of its Subsidiaries in any environmental litigation or impose upon M & I or any of its Subsidiaries any environmental liability.

M & I makes no representation or warranty regarding compliance or failure to comply with, or any actual or contingent liability under, any environmental law or permit except as expressly set forth in this Section 3.11.

• 3.12 Taxes .

(a) M & I and each Subsidiary have accurately prepared and timely filed or had prepared and timely filed on their behalf, all returns, declarations, reports, statements, information statements and other documents filed or required to be filed (the "Tax Returns") with respect to any and all federal, state, local and foreign taxes, assessments and other governmental charges, duties, impositions and liabilities, including, without limitation, taxes based upon or measured by gross receipts, income, profits, sales, use and occupation, value added, ad valorem, transfer, franchise, withholding, payroll, recapture, employment, excise and property taxes, together with all interest, penalties and additions imposed with respect to such amounts and any obligations under any agreements or arrangements with any other person with respect to such amounts and including any liability for taxes of a predecessor entity concerning or attributable to M & I or any of its Subsidiaries or to their operations ("M & I Taxes" and collectively with AAT Taxes (as defined below), "Taxes"), and all such Tax Returns are true, complete and correct in all material respects. No extension of time has been requested for or granted to M & I or any Subsidiary to file any Tax Return that has not yet been filed or to pay any Tax that has not yet been paid.

(b) M & I and each Subsidiary: (i) have paid all Taxes they are obligated to pay as reflected on their Tax Returns or otherwise; and (ii) have withheld all federal, state, local and foreign Taxes required to be withheld with respect to their employees or otherwise.

(c) M & I or each Subsidiary have not executed any waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.

(d) There are no liens arising from or related to Taxes (other than Permitted Encumbrances) on or pending against M & I or its Subsidiaries or any of its or their properties.

(e) M & I and each Subsidiary are not, nor have ever been, a party to or bound by any Tax indemnity agreement, Tax sharing agreement, Tax allocation agreement or similar contract or agreement.

(f) No audit or other examination of any Tax Return of M & I or any Subsidiary by any Tax authority is presently in progress, nor has M & I or any Subsidiary been notified in writing of any request for such an audit or other examination.

(g) No adjustment relating to any Tax Returns filed by M & I or any Subsidiary has been proposed in writing, formally or informally, by any Tax authority to M & I or any Subsidiary or any representative thereof.

(h) M & I and each Subsidiary has no liability for any unpaid Taxes which have not been accrued for or reserved on M & I’s Interim Balance Sheet, whether asserted or unasserted, contingent or otherwise, which is material to M & I and each Subsidiary, other than any liability for unpaid Taxes that may have accrued since September 30, 2006 in connection with the operation of the business of M & I and each Subsidiary in the ordinary course of business.

(i) There is no contract, agreement, plan or arrangement to which M & I or any Subsidiary is a party, including but not limited to the provisions of this Agreement, covering any employee or former employee of M & I and each Subsidiary that, individually or collectively, could reasonably be expected to give rise to the

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payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code (or any similar provision of state or local law). There is no contract, agreement, plan or arrangement to which M & I and each Subsidiary is a party or by which it is bound that could require the compensation of any individual for excise taxes payable pursuant to Section 4999 of the Code (or any similar provision of state or local law).

(j) M & I and each Subsidiary has not filed any consent agreement under Section 341(f) of the Code (or any similar provision of state or local law) or agreed to have Section 341(f)(2) of the Code (or any similar provision of state or local law) apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code (or any similar provision of state or local law)) owned by M & I or any Subsidiary.

(k) M & I and each Subsidiary has not distributed the stock of any corporation in a transaction satisfying the requirements of Section 355 of the Code. The stock of M & I has not been distributed in a transaction satisfying the requirements of Section 355 of the Code.

(l) Neither M & I nor any of its Subsidiaries nor, to the knowledge of M & I, any Person affiliated with M & I has taken any action or failed to take any action that would cause the Merger to fail to qualify as a tax-free reorganization under Section 368(a) of the Code, and no facts, agreements, plans or other circumstances exist that would cause the Merger to fail to so qualify.

Each provision in this Section 3.12 shall be treated for state, local and foreign Tax purposes as a reference to analogous or similar provisions of state, local and foreign law.

3.13 Employment Contracts and Matters . Except as set forth in Section 3.10 of the M & I Disclosure Manual, there are no employment, indemnification, consulting, severance or other similar agreements between M & I or any of its Subsidiaries and any of their respective officers, directors, consultants or employees (the "M & I Employment Contracts"). None of the M & I Employment Contracts contain any "change of control," severance or other provisions pursuant to which any of the benefits of any other party thereto will be increased or the vesting of any such benefits will be accelerated by the consummation of any of the transactions contemplated by this Agreement or pursuant to which the value of any such benefits will be calculated on the basis of any of the transactions contemplated by this Agreement. To the knowledge of M & I and its Subsidiaries, no executive, key employee, or group of employees has any plans to terminate employment with any of M & I and its Subsidiaries. Except as set forth on Section 3.10(i) of the M & I Disclosure Manual, neither M & I nor any of its Subsidiaries is a party to or bound by any collective bargaining contract, nor has any of them experienced any strikes, grievances, claims of unfair labor practices, or other collective bargaining disputes. None of M & I and its Subsidiaries has committed any unfair labor practice within the meaning of the National Labor Relations Act. Except for the collective bargaining agreement as set forth in Section 3.10 of the M & I Disclosure Manual, neither M & I nor any Subsidiary has any knowledge of any organizational effort presently being made or threatened by or on behalf of any labor union with respect to employees of any of M & I and its Subsidiaries and no such organizational efforts took place at any time during the last two years. There are no actions, claims or investigations pending, or to the knowledge of any of M & I and its Subsidiaries threatened, which relate to (a) employment discrimination, age discrimination, sex discrimination and/or sexual harassment (b) unpaid wages; (c) wrongful discharge, retaliation or breach of any alleged employment or other contracts; and (d) claims based on any tort, such as invasion of privacy, defamation, fraud and infliction of emotional distress by any of M & I, any Subsidiary or any of their current or former employees, officers or managers and there is no basis for bringing any such action, claim or investigation.

3.14 Compliance with Laws . The businesses of each of M & I and its Subsidiaries have not been conducted in violation of any law, rule, statute, ordinance, regulation, judgment, determination, order, decree, injunction, arbitration award, license, authorization, opinion, agency requirement or permit of any governmental entity or common law (collectively, "Laws"), except for violations that would not, individually or in the aggregate, reasonably be likely to have a Material Adverse Effect on M & I. No investigation or review by any Governmental Authority with respect to M & I or any of its Subsidiaries is pending or, to the knowledge of M & I, threatened, nor has any Governmental Authority indicated an intention to conduct the same, except for

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those the outcome of which would not, individually or in the aggregate, reasonably be likely to have a Material Adverse Effect on M & I. The executive officers of M & I have not received any notice or communication of any material noncompliance with any such Laws that has not been cured, except for such changes and noncompliance that would not, individually or in the aggregate, reasonably be likely to have a Material Adverse Effect on M & I. Each of M & I and its Subsidiaries has obtained and is in substantial compliance with all permits, licenses, certifications, approvals, registrations, consents, authorizations, franchises, variances, exemptions and orders issued or granted by a Governmental Authority (collectively, "Licenses") necessary to conduct its business as presently conducted, except for those the absence of which or failure to be in compliance with, would not, individually or in the aggregate, reasonably be likely to have a Material Adverse Effect on M & I.

3.15 Improper Business Practices . To the knowledge of M & I and any of its Subsidiaries, neither M & I nor any of its Subsidiaries or Equity Investees nor any director, officer, employee, agent other representative of M & I or any of its Subsidiaries or Equity Investees has: (i) used any funds for unlawful contributions, gifts, entertainment or other unlawful payments relating to political activity; (ii) made any unlawful payment to any foreign or domestic government official or employee or to any foreign or domestic political party or campaign or violated any provision of the Foreign Corrupt Practices Act of 1977, as amended; or made any other unlawful payment.

• 3.16 Employee Benefit Plans .

(a) Section 3.10(ii) of the M & I Disclosure Manual lists all written and describes all non-written employee benefit plans (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) and all bonus, stock or other security option, stock or other security purchase, stock or other security appreciation rights, incentive, deferred compensation, retirement or supplemental retirement, profit sharing, severance, golden parachute, vacation, cafeteria, dependent care, medical care, employee assistance program, education or tuition assistance programs, insurance and other similar fringe or employee benefit plans, programs or arrangements, any employment executive compensation or severance agreements, written or otherwise, which are currently, or within the three years immediately preceding January 1, 2006, and to the date of this Agreement have been, sponsored, maintained, contributed to or entered into for the benefit of, or relating to, any present or former employee or director of M & I, or of any trade or business (whether or not incorporated) which is a member of a controlled group or which is under common control with M & I within the meaning of Section 414 of the Code (an "ERISA Affiliate"), whether or not such plan is terminated (collectively, the "M & I Employee Plans").

(b) With regard to each M & I Employee Plan, M & I has made available to AAT a true and complete copy of, to the extent applicable, of (i) the M & I Employee Plan, (ii) the most recent annual reports (Form 5500) as filed with the United States Internal Revenue Service (the "IRS"), (iii) each trust agreement related to such M & I Employee Plan, (iv) the most recent summary plan description for each M & I Employee Plan for which such description is required, along with all summaries of material modifications, amendments, resolutions and all other material plan documentation related thereto, (v) the most recent actuarial report relating to any M & I Employee Plan subject to Title IV of ERISA and (vi) the most recent IRS determination letter issued with respect to any M & I Employee Plan.

(c) There are no actions or claims pending (other than routine claims for benefits), or to the knowledge of M & I threatened, against any M & I Employee Plan or against the assets of any M & I Employee Plan, nor are there any current, or to the knowledge of M & I threatened, encumbrances or liens on the assets of any M & I Employee Plan. Each M & I Employee Plan which is intended to be qualified under Section 401(a) of the Code has received a favorable determination for the IRS covering the provisions of the GUST stating that such M & I Employee Plan is so qualified, all amendments required to be made in order to preserve the tax-qualification of the plans since the issuance of the GUST determination letter have been timely made and nothing has occurred since the date of such letter that could reasonably be expected to affect the qualified status of such plan. Each M & I Employee Plan has been operated in all material respects in accordance with its terms and the requirements of all applicable law.

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(d) No M & I Employee Plan is an "employee pension benefit plan" (within the meaning of Section 3(2) of ERISA) subject to Title IV of ERISA, and neither M & I nor any ERISA Affiliate has ever maintained, contributed to or partially or fully withdrawn from any such plan. No M & I Employee Plan is a Multiemployer Plan or "single-employer plan under multiple controlled groups" as described in Section 4063 of ERISA, and neither M & I nor any ERISA Affiliate has ever contributed to or had an obligation to contribute, or incurred any liability in respect of a contribution, to any Multiemployer Plan. No M & I Employee Plan is a "multiple employer plan" within the meaning of Section 413(c) of the Code or Section 3(40) of ERISA.

(e) With respect to the employees and former employees of M & I, there are no employee postretirement medical or health plans or agreements in effect, except as required by Section 4980B of the Code or similar state law.

(f) The execution of and performance of the transactions contemplated by this Agreement will not (either alone or upon the occurrence of any additional or subsequent events) result in: (A) any payment to or acceleration, vesting or increase in the rights of any current or former employee or (B) any payment that could reasonably be construed as a "parachute payment" (as defined in Section 280G of the Code) to any current or former employee.

(g) To the knowledge of M & I, no "prohibited transaction," as such term is described in Section 4975 of the Code, has occurred with respect to any M & I Employee Plan that would subject the M & I or any ERISA Affiliate, any officer of M & I or any M & I Employee Plan or any trust to any material tax or penalty on prohibited transactions imposed by Section 4975 of the Code;

(h) There has been no amendment to, written interpretation or announcement (whether or not written) relating to, or change in employee participation or coverage under, any M & I Employee Plan since December 31, 2005 which would increase materially the expense of maintaining such plan above the level of the expense incurred in respect thereof. Each M & I Employee Plan may be amended or terminated at any time by M & I in its sole discretion without the consent of any third party.

(i) There are no actions, suits or claims pending (other than routine claims for benefits) or, to the knowledge of M & I, threatened against, or with respect to, any of the M & I Employee Plans. All material contributions required to be made to the M & I Employee Plans have been timely made pursuant to their terms. To the knowledge of M & I, there is no matter pending with respect to any of the M & I Employee Plans before the IRS or the Department of Labor or any other governmental authorities.

(j) No trust relating to any M & I Employee Plan holds any assets which are "employer securities" or "employer real property" as such terms are defined in ERISA section 407(d)(1) or (2).

(k) Based on M & I’s good faith interpretation of the provisions of Section 409A of the Code and the guidance issued thereunder, any M & I Employee Plan that is a "nonqualified deferred compensation plan" within the meaning of Section 409A of the Code has been operated in accordance with the requirements of Section 409A (including the Notices issued by the IRS thereunder) and has been, or may timely be, amended to comply with 409A if necessary.

3.17 Interested Party Transactions . Except as set forth in Section 3.17 of the M & I Disclosure Manual, no director, officer or other affiliate of M & I (or any member of the immediate family of any of the foregoing persons) has or has had, directly or indirectly, (i) a material economic interest in any person that has furnished or sold, or furnishes or sells, services or products that M & I or any Su