Exhibit 99.1
EXECUTION COPY
AGREEMENT AND PLAN OF MERGER
BETWEEN
TRUSTCORP FINANCIAL, INC.
AND
MARSHALL & ILSLEY CORPORATION
Dated as of December 21,
2005
TABLE OF CONTENTS
Page
ARTICLE I
- THE MERGER
1.1
The Merger
1
1.2
The Closing; Effective Time
2
1.3
Effect of the Merger
2
1.4
Articles of Incorporation;
By-Laws
2
1.5
Directors and Officers
2
1.6
Conversion of Securities; Dissenting
Shares
3
1.7
Exchange of Certificates
4
1.8
Stock Transfer Books
6
1.9
Company Common Stock
6
1.10
Adjustments for Dilution and Other
Matters
6
ARTICLE II - REPRESENTATIONS AND
WARRANTIES OF SELLER
2.1
Organization and Qualification;
Subsidiaries
7
2.2
Articles of Incorporation and
By-Laws
8
2.3
Capitalization
9
2.4
Authority
9
2.5
No Conflict; Required Filings and
Consents
10
2.6
Compliance; Permits
11
2.7
Banking Reports; Financial
Statements
11
2.8
Absence of Certain Changes or
Events
13
2.9
Absence of Proceedings and
Orders
14
2.10
Employee Benefit Plans
15
2.11
Registration Statement; Proxy
Statement/Prospectus
17
2.12
Title to Property
17
2.13
Environmental Matters
18
2.14
Absence of Agreements
19
2.15
Taxes
19
2.16
Insurance
20
2.17
Brokers
20
2.18
Tax Matters
20
2.19
Seller Material Adverse Effect
20
2.20
Material Contracts
20
2.21
Opinion of Financial Advisor
20
2.22
Vote Required
21
2.23
Stock Options
21
ARTICLE III - REPRESENTATIONS AND
WARRANTIES OF THE COMPANY
3.1
Organization and Qualification;
Subsidiaries
21
3.2
Articles of Incorporation and
By-Laws
22
3.3
Capitalization
22
3.4
Authority
23
3.5
No Conflict; Required Filings and
Consents
23
3.6
Compliance; Permits
24
3.7
Securities and Banking Reports; Financial
Statements
24
3.8
Absence of Certain Changes or
Events
26
3.9
Absence of Proceedings and
Orders
27
3.10
Registration Statement; Proxy
Statement/Prospectus
27
3.11
Title to Property
28
3.12
Brokers
28
3.13
Tax Matters
28
3.14
Company Material Adverse
Effect
28
3.15
Employee Benefit Plans
28
ARTICLE IV - COVENANTS OF
SELLER
4.1
Affirmative Covenants
29
4.2
Negative Covenants
29
4.3
Letter of Seller’s
Accountants
32
4.4
No Solicitation of
Transactions
32
4.5
Update Disclosure; Breaches
35
4.6
Affiliates; Tax Treatment
35
4.7
Delivery of Stockholder List
35
4.8
Loan and Investment Policies
36
4.9
Access and Information
36
4.10
Confidentiality Agreement
36
ARTICLE V - COVENANTS OF THE
COMPANY
5.1
Affirmative Covenants
37
5.2
Negative Covenants
37
5.3
Breaches
37
5.4
Stock Exchange Listing
37
5.5
Tax Treatment
37
5.6
Confidentiality Agreement
38
5.7
Stock Options
38
ARTICLE VI - ADDITIONAL
AGREEMENTS
6.1
Proxy Statement/Prospectus; Registration
Statement; Board Recommendation
38
6.2
Meeting of Seller’s
Stockholders
39
6.3
Appropriate Action; Consents;
Filings
39
6.4
Employee Benefit Matters
40
6.5
Directors’ and Officers’
Indemnification and Insurance
40
6.6
Notification of Certain
Matters
41
6.7
Public Announcements
41
6.8
Customer Retention
41
ARTICLE VII - CONDITIONS OF
MERGER
7.1
Conditions to Obligation of Each Party to
Effect the Merger
42
7.2
Additional Conditions to Obligations of
the Company
43
7.3
Additional Conditions to Obligations of
the Seller
44
ARTICLE VIII
- TERMINATION
8.1
Termination
46
8.2
Notice of Termination; Effect of
Termination
48
8.3
Fees and Expenses
49
ARTICLE IX - GENERAL
PROVISIONS
9.1
Non-Survival of Representations,
Warranties and Agreements
50
9.2
Notices
50
9.3
Certain Definitions
51
9.4
Headings
55
9.5
Severability
55
9.6
Entire Agreement
55
9.7
Assignment
55
9.8
Parties in Interest
55
9.9
Governing Law
55
9.10
Counterparts
55
9.11
Time is of the Essence
55
9.12
Specific Performance
55
9.13
Interpretation
56
ANNEX A
EMPLOYEE BENEFIT MATTERS
ANNEX B
FORM OF OPINION OF COUNSEL TO
SELLER
ANNEX C
FORM OF OPINION OF COUNSEL TO
COMPANY
EXHIBIT 1.1
PLAN OF MERGER
EXHIBIT 4.6
AFFILIATE LETTER
EXHIBIT 9.3
INDEX GROUP
Index of Defined Terms
Acquisition Proposal
SECTION 9.3
Acquisition Transaction
SECTION 9.3
Additional Stock Amount
SECTION 8.1(l)
Affiliate
SECTION 9.3
Agreement
PREAMBLE
Bank Secrecy Act
SECTION 2.9(d)
BHCA
SECTION 2.1(a)
Blue Sky Laws
SECTION 2.5(b)
Business Day
SECTION 9.3
Cash Amount
SECTION 1.6(c)
Certificate or Certificates
SECTION 1.7(b)
Change of Recommendation
SECTION 4.4(d)
Closing
SECTION 1.2(a)
Closing Date
SECTION 1.2(a)
Closing Market Value
SECTION 1.6(d)
Code
PREAMBLE
Company
PREAMBLE
Company Approvals
SECTION 3.1(a)
Company Articles
SECTION 1.4
Company By-Laws
SECTION 1.4
Company Common Stock
SECTION 1.6(c)
Company Disclosure Schedule
ARTICLE III
Company Material Adverse
Effect
SECTION 3.1(c)
Company Reports
SECTION 3.7(a)
Company SEC Reports
SECTION 3.7(a)
Company Subsidiary or Company
Subsidiaries
SECTION 3.1(a)
Company’s Board of
Directors
PREAMBLE
Confidentiality Agreement
SECTION 4.10
Consent
SECTION 9.3
Contract
SECTION 9.3
D&O Policy
SECTION 6.5(b)
DFI
SECTION 1.2(b)
Dissenting Shares
SECTION 1.6(e)
Effect
SECTION 2.1(d)
Effective Time
SECTION 1.2(b)
Environmental Claims
SECTION 2.13
Environmental Laws
SECTION 2.13
ERISA
SECTION 2.10(a)
Exchange Act
SECTION 2.5(b)
Exchange Agent
SECTION 1.6(d)
Exchange Fund
SECTION 1.7(a)
Exchange Ratio
SECTION 9.3
Existing D&O Policy
SECTION 4.1(d)
FDIC
SECTION 2.1(b)
Federal Reserve Board
SECTION 2.1(a)
Final Index Price
SECTION 9.3
Final Price
SECTION 9.3
Final VWAP
SECTION 9.3
GAAP
SECTION 2.7(b)
GBCLM
PREAMBLE
GLB Act
SECTION 2.9(d)
Governmental Authority
SECTION 1.7(e)
Hazardous Materials
SECTION 2.13
HSR Act
SECTION 2.5(b)
Indemnified Parties
SECTION 6.5(d)
Index Group
SECTION 9.3
Initial Index Price
SECTION 9.3
Initial VWAP
SECTION 9.3
IRS
SECTION 2.10(a)
Knowledge
SECTION 9.3
Law
SECTION 9.3
Lien
SECTION 9.3
Loan Property
SECTION 2.13
Merger
PREAMBLE
Missouri Secretary of State
SECTION 1.2(b)
NYSE
SECTION 3.7(c)
OCC
SECTION 3.1(a)
Option
SECTION 5.7(a)
Option Plans
SECTION 5.7(a)
Order
SECTION 9.3
OTS
SECTION 3.1(a)
Participation Facility
SECTION 2.13
Patriot Act
SECTION 2.9(d)
Per Share Consideration
SECTION 1.6(c)
Person
SECTION 9.3
Plans
SECTION 2.10(a)
Proxy Statement/Prospectus
SECTION 2.11
Registration Statement
SECTION 3.10
Regulatory Authorities
SECTION 9.3
Reimbursable Company Expenses
SECTION 9.3
Rights
SECTION 9.3
SEC
SECTION 3.7(a)
Section 180.0622(2)(b) of the
WBCL
SECTION 3.3(a)
Section 409A
SECTION 2.10(e)
Securities Act
SECTION 2.5(b)
Seller
PREAMBLE
Seller Approvals
SECTION 2.1(b)
Seller Articles
SECTION 2.2
Seller By-Laws
SECTION 2.2
Seller Common Stock
SECTION 1.6(a)
Seller Disclosure Schedule
ARTICLE II
Seller Financial Statements
SECTION 2.7(b)
Seller Material Adverse Effect
SECTION 2.1(d)
Seller Reports
SECTION 2.7(a)
Seller Stockholders’
Meeting
SECTION 2.11
Seller Subsidiary or Seller
Subsidiaries
SECTION 2.1(a)
Seller’s Board of
Directors
PREAMBLE
Seller’s Board of Directors
Recommendation
SECTION 2.4
Shares
SECTION 1.6(a)
Stock Amount
SECTION 1.6(c)
Subsidiary Organizational
Documents
SECTION 2.2
Superior Offer
SECTION 9.3
Surviving Corporation
SECTION 1.1
Tax or Taxes
SECTION 2.15
Tax Returns
SECTION 2.15
Title IV Plan
SECTION 2.10(b)
Voting Agreement
PREAMBLE
WBCL
PREAMBLE
AGREEMENT AND PLAN OF
MERGER
AGREEMENT AND PLAN OF
MERGER , dated as of
December 21, 2005 (this “Agreement”), between
TRUSTCORP FINANCIAL, INC., a Missouri corporation (the “
Seller”), and MARSHALL & ILSLEY
CORPORATION, a Wisconsin corporation (the “ Company”). Capitalized terms used herein
without definition are defined in the Sections of this Agreement
specified in the index of defined terms attached to this
Agreement.
WHEREAS , the Boards of Directors of the Company (the “
Company’s Board of
Directors”) and the Seller (the “ Seller’s Board of
Directors”) have each determined that it is advisable to and
in the best interests of their respective stockholders for the
Seller to merge with and into the Company (the “ Merger”) upon the terms and subject to the
conditions set forth herein and in accordance with The General and
Business Corporation Law of Missouri (the “GBCLM”) and
the Wisconsin Business Corporation Law (the “ WBCL”);
WHEREAS , the Company’s Board of Directors and the
Seller’s Board of Directors have each approved the Merger,
upon the terms and subject to the conditions set forth herein, and
approved and adopted this Agreement;
WHEREAS , subsequent to the Seller’s approval of this
Agreement and concurrently with the execution of this Agreement and
as a condition and an inducement to the willingness of the Company
to enter into this Agreement, the Company has entered into a
Stockholder Voting Agreement pursuant to which each stockholder
listed on Schedule I to such Stockholder Voting Agreement (the
“ Voting Agreement”) has
agreed to vote the shares of the Seller Common Stock beneficially
owned by such stockholder in favor of the Merger; and
WHEREAS , for federal income tax purposes, it is intended
that the Merger shall qualify as a reorganization under the
provisions of Section 368 of the Internal Revenue Code of
1986, as amended (the “ Code”), and
this Agreement shall constitute the plan of
reorganization.
NOW , THEREFORE , in consideration of the
foregoing premises and the representations, warranties and
agreements contained herein, and subject to the terms and
conditions set forth herein, the parties hereto hereby agree as
follows:
ARTICLE I - THE MERGER
1.1
The Merger . Upon the terms and subject to the conditions set
forth in this Agreement, and in accordance with the GBCLM, the WBCL
and the Plan of Merger attached hereto as
Exhibit 1.1 , at the Effective Time the Seller
shall be merged with and into the Company. As a result of the
Merger, the separate corporate existence of the Seller shall cease
and the Company shall continue as the surviving corporation of the
Merger (the “ Surviving
Corporation”).
1.2
The Closing; Effective Time
.
(a)
The closing of the Merger and the other
transactions contemplated hereby (the “ Closing”) shall be held at such time, date
(the “ Closing Date”) and
location as may be mutually agreed by the parties. In the
absence of such agreement, the Closing shall be held at the offices
of Godfrey & Kahn, S.C., 780 North Water Street, Milwaukee,
Wisconsin, commencing at 9:00 a.m., Milwaukee time, on a date
specified by either party upon five (5) Business Days’
written notice (or at the election of the Company on the last
Business Day of the month) after the last to occur of the following
events: (a) receipt of all Consents of Governmental
Authorities legally required to consummate the Merger and the
expiration of all statutory waiting periods applicable to Merger
and the other transactions contemplated hereby; and (b) approval of
this Agreement and the Merger by the Seller’s stockholders in
the manner contemplated by Section 6.2. Scheduling or
commencing the Closing shall not constitute a waiver of the
conditions set forth in Article VII by either the Company or the
Seller.
(b)
Contemporaneously with the Closing, the
parties hereto shall cause the Merger to be consummated by filing
articles of merger, as necessary,
and any other required documents, with the Secretary of State of
the State of Missouri (the “ Missouri Secretary of State”)
and the Department of Financial Institutions of the State of
Wisconsin (the “ DFI”), in such form
as required by, and executed in accordance with the relevant
provisions of, the GBCLM and the WBCL (the effective date and time
of such filing or such date and time as the Company and the Seller
shall agree and specify in the articles of merger are referred to
herein as the “ Effective
Time”).
1.3
Effect of the Merger
. At the Effective Time, the effect of
the Merger shall be as provided in this Agreement and the
applicable provisions of the GBCLM and the WBCL. Without
limiting the generality of the foregoing, and subject thereto, at
the Effective Time, except as otherwise provided herein, all of the
property, rights, privileges, powers and franchises of the Company
and the Seller shall vest in the Surviving Corporation, and all
debts, liabilities and duties of the Company and the Seller shall
become the debts, liabilities and duties of the Surviving
Corporation.
1.4
Articles of Incorporation;
By-Laws . At the Effective
Time, the Company’s Articles of Incorporation, as amended or
restated (the “ Company
Articles”), and the Company’s By-Laws, as amended or
restated (the “ Company
By-Laws”), as in effect immediately prior to the Effective
Time, shall be the Articles of Incorporation and the By-Laws of the
Surviving Corporation.
1.5
Directors and Officers
. At the Effective Time, the directors of
the Company immediately prior to the Effective Time shall be the
initial directors of the Surviving Corporation, each to hold office
in accordance with the Articles of Incorporation and By-Laws of the
Surviving Corporation and to be assigned to the class previously
assigned. At the Effective Time, the officers of the Company
immediately prior to the Effective Time shall be the initial
officers of the Surviving Corporation, in each case until their
respective successors are duly elected or appointed.
1.6
Conversion of Securities; Dissenting
Shares .
(a)
Subject to Section 1.6(d) regarding
fractional shares, at the Effective Time, by virtue of the Merger
and without action on the part of the Company or the Seller, each
share of the common stock, $.005 par value, of the Seller (“
Seller Common Stock”),
issued and outstanding immediately prior to the Effective Time,
other than (i) shares of Seller Common Stock held in the treasury
of the Seller, (ii) shares of Seller Common Stock owned by the
Company or any Company Subsidiary for its own account, and (iii)
Dissenting Shares, shall cease to be outstanding and shall be
converted into the right to receive the Per Share Consideration.
For purposes hereof, “
Shares” shall mean all shares of Seller Common Stock issued
and outstanding other than those shares of Seller Common Stock
described in clauses (i), (ii) and (iii), above.
(b)
Each share of Seller Common Stock held by
the Seller as treasury stock and each share held by the Company or
any Company Subsidiary for its own account immediately prior to the
Effective Time shall be canceled and extinguished without any
conversion thereof as provided in this Section 1.6.
(c)
For purposes of this Agreement, “
Per Share Consideration”
means (A) an amount in cash equal to $7.70 (the “
Cash Amount”), plus (B) 0.7011
of a share (the “Stock Amount”) of common stock, $1.00
par value, of the Company (“Company Common Stock”).
To the extent the Company exercises its right to issue the
Additional Stock Amount in the manner described in
Section 8.1(l), the parties acknowledge and agree that such
Additional Stock Amount shall be included in the definition of
“Stock Amount” for purposes of determining the Per
Share Consideration. Notwithstanding the foregoing, the
parties acknowledge and agree that the Cash Amount may have to be
reduced and the Stock Amount may have to be increased in accordance
with Section 1.6(f), below.
(d)
No fractional shares of Company Common
Stock shall be issued in the Merger. In lieu of a fractional
share of Company Common Stock, the holder of any Shares who would
otherwise be entitled to receive such fractional share (after
taking into account all Shares delivered by such holder) shall be
entitled to receive a cash payment, without interest and rounded-up
to the nearest whole cent, in an amount determined by multiplying
the Initial VWAP by the fraction of a share of Company Common Stock
to which the holder would otherwise have been entitled;
provided , however , if the Company exercises its
right to issue the Additional Stock Amount in the manner described
in Section 8.1(l), such fractional share of Company Common
Stock shall be multiplied by the Final VWAP and not the Initial
VWAP. As promptly as practicable after the determination of
the amount of cash, if any, to be paid to holders of fractional
share interests, the bank or trust company designated by the
Company as the exchange agent (the “ Exchange Agent”) shall so notify the
Company, and the Company shall deposit that amount with the
Exchange Agent and shall cause the Exchange Agent to forward
payments to the holders of fractional share interests, subject to
and in accordance with the terms of this
Section 1.6.
(e)
Notwithstanding anything in this
Agreement to the contrary, shares of Seller Common Stock which are
issued and outstanding immediately prior to the Effective Time and
which are held by stockholders who have validly exercised
dissenter’s rights available under Section 351.455 of
the GBCLM (the “ Dissenting
Shares”) shall not be converted into or be exchangeable for
the right to receive the Per Share Consideration in accordance with
this Section 1.6, unless and until such holders shall have
failed to perfect or shall have effectively withdrawn or lost their
dissenter’s rights under the GBCLM. Dissenting Shares
shall be treated in accordance with Section 351.455 of the
GBCLM, if and to the extent applicable. If any such holder
shall have failed to perfect or shall have effectively withdrawn or
lost such dissenter’s rights, such holder’s shares of
Seller Common Stock shall thereupon be converted into and become
exchangeable only for the right to receive, as of the Effective
Time, the Per Share Consideration in accordance with this
Section 1.6. The Seller shall give the Company (a)
prompt notice of each and every notice of a stockholder’s
intent to demand payment for the stockholder’s shares of
Seller Common Stock, attempted withdrawals of such demands, and any
other instruments served pursuant to the GBCLM and received by the
Seller relating to rights to be paid the “fair value”
of Dissenting Shares, as provided in Section 351.455 of the
GBCLM and (b) the opportunity to direct all negotiations and
Proceedings with respect to demands for appraisal under the GBCLM.
The Seller shall not, except with the prior written consent
of the Company, voluntarily make any payment with respect to, offer
to settle or settle, or approve any withdrawal of any demands for
“fair value” under Section 351.455 of the
GBCLM.
(f)
If either the tax opinion referred to in
Section 7.2(e) or the tax opinion referred to in
Section 7.3(d) cannot be rendered because the counsel charged
with providing such opinion reasonably determines that the Merger
may not satisfy the continuity of interest requirements under
applicable federal income tax principles relating to
reorganizations under Section 368(a) of the Code, then the
Company shall reduce the Cash Amount and correspondingly increase
the Stock Amount to the minimum extent necessary to enable the
relevant tax opinions to be rendered, provided that the Per Share
Consideration, as calculated and determined pursuant to this
Section 1.6, is the same.
1.7
Exchange of Certificates
.
(a)
Exchange Agent . The Company shall deposit, or shall cause to
be deposited, on or within five (5) Business Days after the Closing
Date, with the Exchange Agent, for the benefit of the holders of
Shares, for exchange in accordance with this Article I, through the
Exchange Agent, the Per Share Consideration, and shall deposit, or
shall cause to be deposited, from time to time, with the Exchange
Agent, any dividends or distributions with respect thereto promptly
following the declaration and payment thereof, if any, to be paid
and issued in exchange for Shares pursuant to this Article I (the
“ Exchange Fund”).
(b)
Exchange Procedures
. As soon as reasonably practicable
after the Effective Time but in any event no more than ten (10)
Business Days thereafter, the Exchange Agent shall mail to each
holder of record of a certificate representing ownership of Shares
(a “ Certificate” or
“Certificates”) whose Shares were converted into the
right to receive the Per Share Consideration pursuant to
Section 1.6, (i) a letter of transmittal (which shall specify
that delivery shall be effected, and risk of loss and title to the
Certificates shall pass, only upon delivery of the Certificates to
the Exchange Agent and shall be in such form and have such other
provisions as the Company may reasonably specify) and (ii)
instructions for use in effecting the surrender of the Certificates
in exchange for the Per Share Consideration. 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 the
Per Share Consideration and any unpaid dividends and distributions
thereon as provided in this Article I, which such holder has the
right to receive in respect of the Certificate surrendered pursuant
to the provisions of this Article I (after taking into account all
Shares then held by such holder), and the Certificate so
surrendered shall forthwith be canceled. In the event of a
transfer of ownership of Shares which is not registered in the
transfer records of the Seller, a transferee may exchange the
Certificate representing such Shares for the Per Share
Consideration and any unpaid dividends and distributions thereon as
provided in this Article I if the Certificate representing such
Shares is presented to the Exchange Agent, accompanied by all
documents required to evidence and effect such transfer, and by
evidence that any applicable stock transfer taxes have been paid.
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 the posting by such Person of a bond in such amount as the
Company may direct as indemnity against any claim that may be made
against it or the Exchange Agent with respect to such Certificate,
the Exchange Agent will pay and issue in exchange for such lost,
stolen or destroyed Certificate the Per Share Consideration and any
unpaid dividends and distributions thereon as provided in this
Article I, which such holder would have had the right to receive in
respect of such lost, stolen or destroyed Certificate. Until
surrendered as contemplated by this Section 1.7, each
Certificate (other than Certificates representing Shares owned by
the Company or any Company Subsidiary and Certificates representing
Dissenting Shares) shall be deemed at any time after the Effective
Time to represent only the right to receive upon such surrender the
Per Share Consideration and any unpaid dividends and distributions
thereon as provided in this Article I.
(c)
Dividends and Distributions with
Respect to Unexchanged Shares . No dividends or other distributions declared
or made after the Effective Time with respect to Company Common
Stock with a record date after the Effective Time shall be paid to
the holder of any unsurrendered Certificate with respect to the
shares of Company Common Stock represented thereby, and no cash
payment in lieu of fractional shares shall be paid to any such
holder pursuant to Section 1.6(d), until the holder of such
Certificate shall surrender such Certificate. Subject to the
effect of applicable Laws, following surrender of any such
Certificate, there shall be paid to the holder of the certificates
representing whole shares of Company Common Stock issued in
exchange therefor, without interest, (i) promptly, the amount of
any cash payable with respect to a fractional share of Company
Common Stock to which such holder is entitled pursuant to
Section 1.6(d) and the amount of dividends or other
distributions with a record date after the Effective Time
theretofore paid with respect to such whole shares of Company
Common Stock, and (ii) at the appropriate payment date, the amount
of dividends or other distributions, with a record date after the
Effective Time but prior to surrender and a payment date occurring
after surrender, payable with respect to such whole shares of
Company Common Stock.
(d)
No Further Rights in the
Shares . The Per Share
Consideration issued and paid upon conversion of the Shares in
accordance with the terms hereof shall be deemed to have been
issued and paid in full satisfaction of all rights pertaining to
such Shares.
(e)
Termination of Exchange
Fund . Any portion of
the Exchange Fund which remains undistributed to the former
stockholders of the Seller for six (6) months after the Effective
Time shall be delivered to the Company, upon demand, and any former
stockholders of the Seller who have not theretofore complied with
this Article I shall thereafter look only to the Company to claim
the Per Share Consideration, any cash in lieu of fractional shares
of Company Common Stock and any dividends or distributions with
respect to Company Common Stock, in each case without interest
thereon, and subject to Section 1.7(g). Any portion of
the Exchange Fund remaining unclaimed by holders of Shares as of a
date which is immediately prior to such time as such amounts would
otherwise escheat to or become property of any United States
federal, state or local or any foreign government, or political
subdivision thereof, or any multinational organization or authority
or any authority, agency or commission entitled to exercise any
administrative, executive, judicial, legislative, police,
regulatory (including, without limitation, any Regulatory
Authority) or taxing authority or power, any court or tribunal (or
any department, bureau or division thereof), or any arbitrator or
arbitral body (each a “
Governmental Authority”), shall, to the extent permitted by
applicable Law, become the property of the Surviving Corporation
free and clear of any claims or interest of any Person previously
entitled thereto.
(f)
No Liability . Neither the Company nor the Seller shall be
liable to any former holder of Shares for any such Shares (or
dividends or distributions with respect thereto) or cash or other
payment delivered to a Governmental Authority pursuant to any
abandoned property, escheat or similar Laws.
(g)
Withholding Rights
. Each of the Company and the
Exchange Agent shall be entitled to deduct and withhold from the
consideration otherwise payable pursuant to this Agreement to any
former holder of Shares such amounts as it is required to deduct
and withhold with respect to the making of such payment under any
Laws relating to Taxes and pay such withholding amount over to the
appropriate Governmental Authority. To the extent that
amounts are so withheld by the Company or the Exchange Agent, such
withheld amounts shall be treated for all purposes of this
Agreement as having been paid to the former holder of the Shares in
respect of which such deduction and withholding was made by the
Company or the Exchange Agent, as the case may be.
1.8
Stock Transfer Books
. At the Effective Time, the stock
transfer books of the Seller shall be closed and there shall be no
further registration of transfers of shares of the Seller Common
Stock thereafter on the records of the Seller. From and after
the Effective Time, the holders of Certificates outstanding
immediately prior to the Effective Time shall cease to have any
rights with respect to such Shares except as otherwise provided
herein or by Law. On or after the Effective Time, any
Certificates presented to the Exchange Agent or the Company for any
reason shall be converted into the Per Share Consideration in
accordance with this Article I, subject to applicable Law in the
case of Dissenting Shares.
1.9
Company Common Stock
. The shares of Company Common Stock
issued and outstanding immediately prior to the Effective Time
shall be unaffected by the Merger and at the Effective Time, such
shares shall remain issued and outstanding.
1.10
Adjustments for Dilution and Other
Matters . If prior to the
Effective Time the Company shall declare a stock dividend or
distribution upon, or subdivide, split-up, reclassify or combine,
Company Common Stock or declare a dividend or make a distribution
on Company Common Stock in any security convertible into Company
Common Stock, an appropriate adjustment or adjustments will be made
to the Stock Amount to be issued for each of the Shares to be
converted pursuant to Section 1.6.
ARTICLE II - REPRESENTATIONS AND WARRANTIES OF
SELLER
Except as disclosed in the disclosure
schedule (the “
Seller Disclosure Schedule”) delivered by the Seller to the
Company prior to the execution of this Agreement (which schedule
sets forth items of disclosure with specific reference to the
particular Section or subsection of this Agreement to which the
information in the Seller Disclosure Schedule relates;
provided , however , that any information set forth
in one Section or subsection of the Seller Disclosure Schedule will
be deemed to apply to each other Section or subsection of this
Agreement to which its relevance is reasonably apparent), the
Seller hereby represents and warrants to the Company as
follows:
2.1
Organization and Qualification;
Subsidiaries .
(a)
The Seller is a corporation duly
organized, validly existing and in good standing under the Laws of
the State of Missouri and a registered bank holding company under
the Bank Holding Company Act of 1956 and the regulations
promulgated thereunder, as amended (the “
BHCA”). The Seller is also subject to regulation by the
Board of Governors of the Federal Reserve System (the “
Federal Reserve Board”).
Each subsidiary of the Seller (a “ Seller Subsidiary,” or collectively
the “ Seller
Subsidiaries”) is a state banking association, corporation,
limited liability company, limited partnership or trust duly
organized, validly existing and in good standing under the Laws of
the state of its incorporation or organization. Each of the
Seller and the Seller Subsidiaries has the requisite power and
authority to own, lease and operate the properties it now owns or
holds under lease and to carry on its business as it is now being
conducted, is duly qualified or licensed as a foreign business
entity to do business, and is in good standing, in each
jurisdiction where the character of the properties owned, leased or
operated by it or the nature of its business makes such
qualification or licensing necessary, except for such jurisdictions
in which the failure to be so qualified or licensed would not have
a Seller Material Adverse Effect. Each Seller Subsidiary that
is a Missouri bank has been in existence and actively engaged in
business for five (5) or more years.
(b)
Each of the Seller and the Seller
Subsidiaries has all Consents and Orders (“ Seller Approvals”) necessary to own,
lease and operate its properties and to carry on its business as it
is now being conducted, including all required authorizations from
the Federal Reserve Board, the Federal Deposit Insurance
Corporation (the “ FDIC”), and the
Missouri Division of Finance, and neither the Seller nor any Seller
Subsidiary has received any notice of any Proceedings relating to
the revocation or modification of any Seller Approvals, except in
each such case where such revocation or modification, or the
failure to have such Seller Approvals (other than all required
authorizations from the Federal Reserve Board, the FDIC and the
Missouri Division of Finance) would not have a Seller Material
Adverse Effect.
(c)
A true and complete list of the Seller
Subsidiaries, together with (i) the Seller’s percentage
ownership of each Seller Subsidiary and (ii) Laws under which the
Seller Subsidiary is incorporated or organized, is set forth in the
Seller Disclosure Schedule. The Seller or one or more of the
Seller Subsidiaries owns beneficially and of record all of the
outstanding shares of capital stock of each of the Seller
Subsidiaries. Except for the Seller Subsidiaries, the Seller
does not directly or indirectly own any capital stock or equity
interest in, or any interests convertible into or exchangeable or
exercisable for any capital stock or equity interest in, any
corporation, partnership, joint venture or other business
association or other Person, other than in the ordinary course of
business and in no event in excess of 5% of the outstanding equity
securities of such Person.
(d)
As used in this Agreement, the term
“Seller Material Adverse Effect” means any effect,
change, event, fact, condition, occurrence or development (each an
“ Effect”) that, individually or
in the aggregate with other Effects, (i) is material and adverse to
the business, assets, liabilities, results of operations or
financial condition of the Seller and the Seller Subsidiaries taken
as a whole, and/or (ii) materially impairs the ability of the
Seller to consummate the transactions contemplated hereby;
provided , however , that the term “ Seller Material Adverse
Effect” shall not be deemed to include the impact of (a)
changes in Laws or interpretations thereof that are generally
applicable to the banking industry, (b) changes in GAAP that are
generally applicable to the banking industry, (c) expenses
reasonably incurred in connection with the transactions
contemplated hereby, (d) changes attributable to or resulting from
changes in general economic conditions caused by any reason
whatsoever affecting banks or their holding companies generally,
(e) any Effect to the extent resulting from the announcement of
this Agreement or the transactions contemplated thereby, (f) the
payment of any amounts due to, or the provision of any other
benefits to, any officers or employees under employment Contracts,
non-competition agreements, employee benefit plans, severance
agreements or other arrangements in existence as of the date of or
contemplated by this Agreement, in each case only if disclosed in
Section 2.1(d) of the Seller Disclosure Schedule, provided
that the payment of any such amounts or the provision of any such
benefits shall be made in the ordinary course consistent with past
practices or paid in accordance with such Contracts, agreements,
plans or arrangements, (g) the taking of any action by the Seller
approved or consented to in writing by the Company, (h) any action
taken or not taken by the Seller or the Seller Subsidiaries in
accordance with the terms and covenants contained in this
Agreement, or (i) actions contemplated and permitted by this
Agreement.
(e)
The minute books of the Seller and each
of the Seller Subsidiaries contain true, complete and accurate
records in all material respects of all meetings and other
corporate actions held or taken since January 1, 2001, of
their respective stockholders and Boards of Directors (including
committees of their respective Boards of Directors).
2.2
Articles of Incorporation and
By-Laws . The Seller has
heretofore furnished or made available to the Company a complete
and correct copy of the Seller’s Articles of Incorporation
and the Seller’s By-Laws, each as amended or restated (the
“ Seller Articles” and
the “ Seller By-Laws,”
respectively), and the Articles of Incorporation and the By-Laws,
or other organizational documents, as the case may be, of each
Seller Subsidiary, each as amended or restated (the “
Subsidiary
Organizational Documents”). The Seller Articles, the
Seller By-Laws and the Subsidiary Organizational Documents are in
full force and effect. Neither the Seller nor any Seller
Subsidiary is in breach of any of the provisions of the Seller
Articles, the Seller By-Laws or the Subsidiary Organizational
Documents.
2.3
Capitalization . The authorized capital stock of the Seller consists
of 20,000,000 shares of Seller Common Stock and 5,000,000 shares of
preferred stock, no par value per share. As of the date of
this Agreement, (i) 4,255,020 shares of Seller Common Stock were
issued and outstanding, all of which were duly authorized, validly
issued, fully paid and non-assessable, and not issued in violation
of any preemptive right of any Seller stockholder, (ii) no shares
of Seller Common Stock were held as treasury shares by the Seller,
and (iii) 593,500 shares of Seller Common Stock were subject to
outstanding stock options issued pursuant to the Seller’s
stock option plans. Attached to the Seller Disclosure
Schedule is a true and complete list of the holders of record of
the Seller Common Stock and the number of shares of Seller Common
Stock held by each such holder of record. The authorized
capital stock of Missouri State Bank and Trust Company consists of
135 shares of common stock, par value $10,000.00 per share.
As of the date of this Agreement, all of such issued and
outstanding shares of common stock are duly authorized, validly
issued, fully paid and non-assessable and owned beneficially and of
record by the Seller. The authorized capital stock of
Trustcorp Statutory Trust I consists of 15,000 capital
securities, stated liquidation amount of $1,000 per security, and
464 common securities, stated liquidation amount of $1,000 per
security. As of the date of this Agreement, all of such
capital and common securities are duly authorized, validly issued,
fully paid and non-assessable and owned beneficially and of record
by Preferred Term Securities, Ltd., in the case of the capital
securities, and the Seller in the case of the common securities.
Except as set forth above in this Section 2.3 and in
Section 2.3 of the Seller Disclosure Schedule, there are no
securities of the Seller or any Seller Subsidiary (debt, equity or
otherwise) authorized, issued or outstanding. All of the
issued and outstanding shares of capital stock of the Seller and
the Seller Subsidiaries have been issued in compliance with all
applicable federal and state securities laws or in accordance with
exemptions therefrom. Except as set forth in
clause (iii), above, there are no outstanding Rights relating
to the issued or unissued capital stock of the Seller or any Seller
Subsidiary or obligating the Seller or any Seller Subsidiary to
issue or sell any shares of capital stock or other securities of or
in the Seller or any Seller Subsidiary. There are no
obligations, contingent or otherwise, of the Seller or any Seller
Subsidiary to repurchase, redeem or otherwise acquire any shares of
Seller Common Stock or the capital stock of any Seller Subsidiary
or to provide funds to or make any investment (in the form of a
loan, capital contribution or otherwise) in any Seller Subsidiary
or any other Person, except for loan commitments and other funding
obligations entered into in the ordinary course of business.
Neither the Seller nor any Seller Subsidiary has repurchased,
redeemed or otherwise acquired any of its shares of capital stock
since December 31, 2004. Each of the outstanding shares
of capital stock of each Seller Subsidiary is duly authorized,
validly issued, fully paid and non-assessable, and not issued in
violation of any preemptive rights of any Seller Subsidiary
stockholder or other equity holder, and such shares owned by the
Seller are owned free and clear of all limitations of the
Seller’s voting rights and Liens whatsoever.
2.4
Authority . The Seller has the requisite corporate power and
authority to execute and deliver this Agreement, to perform its
obligations hereunder and to consummate the transactions
contemplated hereby (other than, with respect to the Merger, the
approval and adoption of this Agreement by the Seller’s
stockholders in accordance with the GBCLM, the Seller Articles and
the Seller By-Laws). The execution and delivery of this
Agreement by the Seller and the consummation by the Seller of the
transactions contemplated hereby have been duly and validly
authorized by all necessary corporate action on the part of the
Seller, including, without limitation, the Seller’s Board of
Directors (other than, with respect to the Merger, the approval and
adoption of this Agreement by the Seller’s stockholders in
accordance with the GBCLM, the Seller Articles and the Seller
By-Laws). As of the date of this Agreement, the
Seller’s Board of Directors, at a meeting duly called,
constituted and held in accordance with the GBCLM and the
provisions of the Seller Articles and the Seller By-Laws, has by
the unanimous vote of all of the members of the Seller’s
Board of Directors determined (a) that this Agreement and the
transactions contemplated hereby, including the Merger, are
advisable to, fair to and in the best interests of the Seller and
its stockholders, (b) to submit this Agreement for approval and
adoption by the stockholders of the Seller and to declare the
advisability of this Agreement, and (c) to recommend that the
stockholders of the Seller adopt and approve this Agreement and the
transactions contemplated hereby, including the Merger, and direct
that this Agreement and the Merger be submitted for consideration
by the stockholders of the Seller at the Seller Stockholders’
Meeting (collectively, the “ Seller’s Board
of Directors Recommendation”). No other corporate
proceedings on the part of the Seller are necessary to authorize
this Agreement or to consummate the transactions contemplated
hereby (other than, with respect to the Merger, the approval and
adoption of this Agreement by the Seller’s stockholders in
accordance with the GBCLM, the Seller Articles and the Seller
By-Laws). This Agreement has been duly and validly executed
and delivered by the Seller and, assuming the due authorization,
execution and delivery of this Agreement by the Company,
constitutes a valid and binding obligation of the Seller and is
enforceable against the Seller in accordance with its terms, except
as enforcement may be limited by Laws affecting insured depository
institutions, general principles of equity, whether applied in a
court of law or a court of equity, and by bankruptcy, insolvency
and similar Laws affecting creditors’ rights and remedies
generally.
2.5
No Conflict; Required Filings and
Consents .
(a)
The execution and delivery of this
Agreement by the Seller do not, and the performance of this
Agreement and the consummation of the transactions contemplated
hereby by the Seller will not, (i) conflict with or violate the
Seller Articles, the Seller By-Laws or the Subsidiary
Organizational Documents, (ii) conflict with or violate any Laws or
Orders applicable to the Seller or any Seller Subsidiary or by
which its or any of their respective properties is bound or
affected, or (iii) result in any breach of or constitute a default
(or an event that with notice or lapse of time or both would become
a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, or result in the
creation of a Lien on any of the properties or assets of the Seller
or any Seller Subsidiary pursuant to, any note, bond, mortgage,
indenture, lease, license, permit, franchise or other Contract to
which the Seller or any Seller Subsidiary is a party or by which
the Seller or any Seller Subsidiary or its or any of their
respective properties is bound or affected, except in the case of
this clause (iii) for any such breaches, defaults or other
occurrences that would not have a Seller Material Adverse Effect.
Sections 351.407 and 351.459 of the GBCLM are inapplicable to
the execution, delivery and performance of this Agreement and the
transactions contemplated hereby, including the Merger.
Except for Sections 351.407 and 351.459 of the GBCLM, no
“business combination,” “control share
acquisition,” “fair price” or other anti-takeover
laws or regulations enacted under Missouri state law applies to the
execution, delivery or performance of this Agreement or any of the
transactions contemplated hereby, including the Merger.
(b)
The execution and delivery of this
Agreement by the Seller do not, and the performance of this
Agreement and the consummation of the transactions contemplated
hereby by the Seller will not, require any Consent from, or filing
with or notification to, any Governmental Authority, except for
applicable requirements, if any, of the Securities Act of 1933 and
the regulations promulgated thereunder, as amended (the
“Securities Act”), the Securities Exchange Act of 1934
and the regulations promulgated thereunder, as amended (the
“Exchange Act”), state securities or blue sky laws and
the regulations promulgated thereunder, each as amended
(“Blue Sky Laws”), the BHCA, the banking laws of the
State of Missouri and the regulations promulgated thereunder, as
amended, the filing and recordation of appropriate merger or other
documents as required by the GBCLM and WBCL, and prior notification
filings with the Department of Justice under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976 and the regulations promulgated
thereunder, as amended (the “ HSR
Act”). Neither the Seller nor any Seller Subsidiary is
subject to any foreign Governmental Authority or foreign
Law.
2.6
Compliance; Permits
. Neither the Seller nor any Seller
Subsidiary is in conflict with, or in default under or violation
of, as applicable, (i) any Law applicable to the Seller or any
Seller Subsidiary or by which its or any of their respective
properties is bound or affected, or (ii) any note, bond, mortgage,
indenture, lease, license, permit, franchise or other Contract to
which the Seller or any Seller Subsidiary is a party or by which
the Seller or any Seller Subsidiary or its or any of their
respective properties is bound or affected, except for any such
conflicts, defaults or violations which would not have a Seller
Material Adverse Effect.
2.7
Banking Reports; Financial
Statements .
(a)
The Seller and each Seller Subsidiary
have filed all forms, reports and documents required to be filed
with the Federal Reserve Board, the FDIC, the Missouri Division of
Finance and any other applicable federal or state securities or
banking authorities (all such reports and statements are
collectively referred to as the “ Seller Reports”). The Seller
Reports (i) were prepared in all material respects in accordance
with the requirements of applicable Law and (ii) did not at the
time they were filed, after giving effect to any amendment thereto
filed prior to the date hereof, contain any untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading, except that information as of a later date
(but before the date of this Agreement) will be deemed to modify
information as of an earlier date.
(b)
Each of the Seller Financial Statements
(including, if applicable, any related notes thereto) has been
prepared in accordance with generally accepted accounting
principles (“ GAAP”) applied on a
consistent basis throughout the periods involved (except as may be
indicated in the notes thereto or required by reason of a
concurrent change to GAAP) and each fairly presents in all material
respects the consolidated financial position of the Seller and the
Seller Subsidiaries as of the respective dates thereof and the
consolidated results of its operations and cash flows and changes
in financial position for the periods indicated, except that any
unaudited interim financial statements do not contain the footnotes
required by GAAP and were or are subject to normal and recurring
year-end adjustments, which were not or are not expected to be
material in amount, either individually or in the aggregate.
The Seller has not had any dispute with any of its auditors
regarding accounting matters or policies during any of its past
three (3) full fiscal years or during the current fiscal
year-to-date. To the Seller’s Knowledge, the
Seller’s auditors will deliver to the Seller an unqualified
audit opinion with respect to the Seller’s financial
statements as of and for the year ended December 31, 2005.
As used in this Agreement, “ Seller Financial Statements” means
(i) the unaudited consolidated balance sheet as of
September 30, 2005 and the audited consolidated balance sheets
as of December 31, 2002, 2003 and 2004, respectively
(including related notes and schedules, if any), of the Seller;
(ii) the unaudited consolidated statement of income for the period
ended September 30, 2005 and the audited consolidated
statements of income for the years ended December 31, 2002,
2003 and 2004, respectively (including related notes and Schedules,
if any) of the Seller; (iii) the audited consolidated statements of
cash flows and stockholders’ equity for the years ended
December 31, 2002, 2003 and 2004, respectively (including
related notes and schedules, if any), of the Seller; and (iv) all
bank financial reports, including any amendments thereto, filed
with any Governmental Authorities by each bank subsidiary for the
year ended December 31, 2004 and the nine (9) month period
ended September 30, 2005, and all bank financial reports to be
filed after the date hereof until the Closing. Attached to
the Seller Disclosure Schedule are copies of all correspondence
between the Seller and each Seller Subsidiary and any Governmental
Authority concerning any of the foregoing financial statements or
the financial position of the Seller or any Seller Subsidiary since
January 1, 2003.
(c)
The Seller has in place a process
designed by, or under the supervision of, the Seller’s Chief
Executive Officer or Chief Financial Officer, or individuals
performing similar functions, and effected by the Seller’s
Board of Directors, management and other personnel, to provide
reasonable assurance regarding the reliability of financial
reporting and the preparation of financial statements for external
purposes in accordance with GAAP and includes those policies and
procedures that: (i) pertain to the maintenance of
records that in reasonable detail accurately and fairly reflect the
transactions and dispositions of the assets of the Seller, (ii)
provide reasonable assurance that
transactions are recorded as necessary to permit preparation of
financial statements in accordance with GAAP, and that receipts and
expenditures of the Seller are being made only in accordance with
authorizations of management and directors of the Seller, and (iii)
provide reasonable assurance regarding prevention or timely
detection of unauthorized acquisition, use or disposition of the
Seller’s assets that could have a material effect on the
financial statements.
(d)
There are no outstanding loans made by
the Seller or any Seller Subsidiary to any executive officer or
director of the Seller, other than loans that are subject to and in
compliance with Regulation O under the Federal Reserve
Act.
(e)
Except (i) for those liabilities that are
reflected or fully reserved against on the consolidated balance
sheet of the Seller as of September 30, 2005, and (ii) for
liabilities incurred in the ordinary course of business consistent
with past practice since September 30, 2005, neither the
Seller nor any Seller Subsidiary has incurred any liability of any
nature whatsoever (whether absolute, accrued, contingent or
otherwise and whether due or to become due) that is required to be
disclosed on a balance sheet prepared in accordance with GAAP that
has had, or would reasonably be expected to have, a Seller Material
Adverse Effect.
(f)
The Seller has not been notified by its
independent public accounting firm that such accounting firm is of
the view that any of the Seller Financial Statements should be
restated which has not been restated in subsequent Seller Financial
Statements or that the Seller should modify its accounting in
future periods in a manner that would have a Seller Material
Adverse Effect.
(g)
Since December 31, 2004, none of the
Seller or the Seller Subsidiaries or, to the Seller’s
Knowledge, any director, officer or employee of the Seller or the
Seller Subsidiaries or any auditor, accountant or representative of
the Seller or the Seller Subsidiaries, has received any complaint,
allegation, assertion or claim, whether written or oral, regarding
the accounting or auditing practices, procedures, methodologies or
methods of the Seller or the Seller Subsidiaries or their
respective internal accounting controls, including any complaint,
allegation, assertion or claim that the Seller or any Seller
Subsidiary has engaged in questionable accounting or auditing
practices. No attorney representing the Seller or the Seller
Subsidiaries, whether or not employed by the Seller or the Seller
Subsidiaries, has reported evidence of a material violation of
securities laws, breach of fiduciary duty or similar violation by
the Seller, any Seller Subsidiary or any of their officers,
directors, employees or agents to the Seller’s or any Seller
Subsidiary’s Board of Directors or any committee thereof or
to any director or officer of the Seller or any Seller Subsidiary.
Since December 31, 2004, there have been no internal
investigations regarding accounting or revenue recognition
discussed with, reviewed by or initiated at the direction of the
Chief Executive Officer, Chief Financial Officer, individuals
performing similar functions, the Seller’s or any Seller
Subsidiary’s Board of Directors or any committee
thereof.
2.8
Absence of Certain Changes or
Events .
(a)
Since December 31, 2004 to the date
hereof, the Seller and the Seller Subsidiaries have conducted their
businesses only in the ordinary course and in a manner consistent
with past practice and, since December 31, 2004, there has not
been (i) any change in the financial condition, results of
operations or business of the Seller or any of the Seller
Subsidiaries which has had, or to the Seller’s Knowledge
would reasonably be expected to have, a Seller Material Adverse
Effect, (ii) any damage, destruction or loss (whether or not
covered by insurance) with respect to any assets of the Seller or
any of the Seller Subsidiaries which has had, or to the
Seller’s Knowledge would reasonably be expected to have, a
Seller Material Adverse Effect, (iii) any change by the Seller in
its accounting methods, principles or practices, (iv) any
revaluation by the Seller of any of its assets in any material
respect, (v) any declaration, setting aside or payment of any
dividends or distributions in respect of shares of Seller Common
Stock or any redemption, repurchase or other acquisition of any of
its securities or any of the securities of any Seller Subsidiary,
(vi) any increase in the wages, salaries, bonuses, compensation,
pension or other fringe benefits or perquisites payable to any
executive officer, employee or director of the Seller or any Seller
Subsidiary or any grant of any severance or termination pay, except
in the ordinary course of business consistent with past practices,
(vii) any strike, work stoppage, slow-down or other labor
disturbance, (viii) the execution of any collective bargaining
agreement or other Contract with a labor union or organization, or
(ix) to the Seller’s Knowledge, any union organizing
activities.
(b)
To the Seller’s Knowledge, no third
Person has used, with or without permission, the corporate name,
trademarks, trade names, service marks, logos, symbols or similar
intellectual property of the Seller or any Seller Subsidiary in
connection with the marketing, advertising, promotion or sale of
such third Person’s products or services. Neither the
Seller nor any Seller Subsidiary is a party to any joint marketing
or other affinity marketing program with any third
Person.
2.9
Absence of Proceedings and
Orders .
(a)
There is no Proceeding pending or, to the
Seller’s Knowledge, threatened against the Seller or any
Seller Subsidiary or any of their properties or assets or
challenging the validity or propriety of the transactions
contemplated by this Agreement, other than those Proceedings set
forth on Section 2.9(a) of the Seller Disclosure
Schedule.
(b)
There is no Order imposed upon the
Seller, any of the Seller Subsidiaries or the assets of the Seller
or any of the Seller Subsidiaries, including, without limitation,
any Order relating to any of the transactions contemplated by this
Agreement, other than those Orders set forth on Section 2.9(b)
the Disclosure Schedule.
(c)
Neither the Seller nor any of the Seller
Subsidiaries is subject to and, to the Seller’s Knowledge,
there are no facts and/or circumstances in existence that will
result in the Seller or any of the Seller Subsidiaries becoming
subject to, any written Order, agreement (including an agreement
under Section 4(m) of the BHCA), memorandum of understanding
or similar arrangement with, or a commitment letter or similar
submission to, or extraordinary supervisory letter from, or has
adopted any extraordinary board resolutions at the request of, any
Governmental Authority charged with the supervision or regulation
of financial institutions or issuers of securities or engaged in
the insurance of deposits or the supervision or regulation of it or
any of the Seller Subsidiaries, nor has any Governmental Authority
advised it in writing or, to the Seller’s Knowledge,
otherwise advised that it is contemplating issuing or requesting
(or is considering the appropriateness of issuing or requesting)
any such Order, agreement, memorandum of understanding or
extraordinary supervisory letter or any such board resolutions,
nor, to the Seller’s Knowledge, has any Governmental
Authority commenced an investigation in connection
therewith.
(d)
To the Seller’s Knowledge, no facts
or circumstances exist which would cause it or any of the Seller
Subsidiaries to be deemed to be (i) operating in violation of The
Currency and Foreign Transactions Reporting Act and the regulations
promulgated thereunder, as amended (the “Bank Secrecy
Act”), the USA Patriot Act of 2001 and the regulations
promulgated thereunder, as amended (the “ Patriot Act”), any Order issued with
respect to anti-money laundering by the United States Department of
the Treasury’s Office of Foreign Assets Control, or any other
applicable anti-money laundering Laws, except where any such
violation would not have a Seller Material Adverse Effect; or (ii)
not in satisfactory compliance with the applicable privacy and
customer information requirements contained in any privacy Laws,
including, without limitation, Title V of the
Graham-Leach-Bliley Act of 1999 and the regulations promulgated
thereunder, as amended (the “ GLB
Act”), and the provisions of the information security program
adopted pursuant to 12 C.F.R. Part 40, except where the
failure to so comply would not have a Seller Material Adverse
Effect. The Seller (or where appropriate the Seller
Subsidiary) has adopted and implemented an anti-money laundering
program that contains customer identification verification
procedures that comply with Section 326 of the Patriot Act and
such anti-money laundering program meets the requirements in all
material respects of Section 352 of the Patriot Act and it (or
such other of the Seller Subsidiaries) has complied in all
respects, except where the failure to comply would not have a
Seller Material Adverse Effect, with any requirements to file
reports and other necessary documents as required by the Patriot
Act.
2.10
Employee Benefit Plans
.
(a)
Current Plans . The Seller Disclosure Schedule lists all
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
option, stock purchase, restricted stock, incentive, deferred
compensation, retiree medical or life insurance, supplemental
retirement, severance and other benefit plans, programs or
arrangements, and all written employment, termination, severance
and other employment Contracts or written employment arrangements,
with respect to which the Seller or any Seller Subsidiary has any
obligation, whether absolute, accrued, contingent or otherwise due
or to become due (collectively, the “
Plans”). Except as set forth in Section 2.10(a) of the
Seller Disclosure Schedule, the Seller has furnished or made
available to the Company a complete and accurate copy of each Plan
(or a description of the Plans, if the Plans are not in writing)
and a complete and accurate copy of each material document prepared
in connection with each such Plan, including, without limitation,
and where applicable, a copy of (i) each trust or other funding
arrangement, (ii) each summary plan description and summary of
material modifications, (iii) the three (3) most recently filed
United States Internal Revenue Service (“IRS”)
Forms 5500 and related schedules, (iv) the most recently
issued determination letter from the IRS for
each such Plan and the materials submitted to obtain that letter
and (v) the three (3) most recently prepared actuarial and
financial statements with respect to each such Plan.
(b)
Absence of Certain Types of
Plans . No member of the
Seller’s “controlled group,” within the meaning
of Section 4001(a)(14) of ERISA, maintains or contributes to,
or within the five (5) years preceding the Effective Time has
maintained or contributed to, an employee pension benefit plan
subject to Title IV of ERISA (“ Title IV Plan”), including, without
limitation, any “multiemployer pension plan” as defined
in Section 3(37) of ERISA. Except as provided in the
written employment Contracts or written arrangements identified in
Section 2.10(a) of the Seller Disclosure Schedule, none of the
Plans obligates the Seller or any of the Seller Subsidiaries to pay
separation, severance, termination or similar type benefits solely
as a result of any transaction contemplated by this Agreement or as
a result of a “change in control,” within the meaning
of such term under Section 280G of the Code. Except as
provided in the employment Contracts or arrangements identified in
Section 2.10(a) of the Seller Disclosure Schedule, or as required
by the Consolidated Omnibus Budget Reconciliation Act of 1986, as
amended, none of the Plans provides for or promises retiree
medical, disability or life insurance benefits to any current or
former employee, officer or director of the Seller or any of the
Seller Subsidiaries. Each of the Plans is subject only to the
Laws of the United States or a political subdivision
thereof.
(c)
Compliance with Applicable
Law . Each Plan has been
operated in all respects in accordance with the requirements of all
applicable Law and all Persons who participate in the operation of
such Plans and all Plan “fiduciaries” (within the
meaning of Section 3(21) of ERISA) have acted in accordance
with the provisions of all applicable Law, except where such
operations or violations of applicable Law would not have a Seller
Material Adverse Effect. The Seller and the Seller
Subsidiaries have performed all obligations required to be
performed by any of them under, are not in any respect in default
under or in violation of, and the Seller and the Seller
Subsidiaries have no Knowledge of any default or violation by any
party to, any Plan, except where such failures, defaults or
violations would not have a Seller Material Adverse Effect.
No legal action, suit or claim is pending or, to the
Seller’s Knowledge, threatened with respect to any Plan
(other than claims for benefits in the ordinary course) and, except
as disclosed in Section 2.10(c) of the Seller Disclosure Schedule,
to the Seller’s Knowledge, no fact or event exists that could
give rise to any such action, suit or claim. Except as
disclosed in Section 2.10(c) of the Seller Disclosure Schedule,
neither the Seller nor any Seller Subsidiary has incurred any
liability under Section 302 of ERISA or Section 412 of
the Code that has not been satisfied in full and no condition
exists that presents a risk of incurring any such liability except
where such liability would not have a Seller Material Adverse
Effect.
(d)
Qualification of Certain
Plans . Except as
disclosed in Section 2.10(d) of the Seller Disclosure
Schedule, each Plan that is intended to be qualified under
Section 401(a) of the Code or Section 401(k) of the Code
(including each trust established in connection with such a Plan
that is intended to be exempt from federal income taxation under
Section 501(a) of the Code) has received a favorable
determination letter from the IRS to the effect that it is so
qualified or is entitled to rely on a favorable opinion or advisory
letter issued to the sponsor of a master and prototype plan
pursuant to IRS Announcement 2001-77, and, to the Seller’s
Knowledge, there is no fact or event that could adversely affect
the qualified status of any such Plan. No trust maintained or
contributed to by the Seller or any of the Seller Subsidiaries is
intended to be qualified as a voluntary employees’
beneficiary association or is intended to be exempt from federal
income taxation under Section 501(c)(9) of the Code.
(e)
Non-Qualified Deferred Compensation
Plans . Except as
disclosed in Section 2.10(e) of the Seller Disclosure Schedule or
otherwise provided in this Agreement (including Annex A), no Plan
that is a non-qualified deferred compensation plan subject to
Section 409A of the Code and the related guidance issued
thereunder, as amended (“
Section 409A”), has been modified (as defined under
Section 409A) on or after October 3, 2004 and all such
non-qualified deferred compensation plans have been operated and
administered by Seller and the Seller Subsidiaries in good faith
compliance with Section 409A from the period beginning
January 1, 2005 through the date hereof, except modifications
and operations that would not have a Seller Material Adverse
Effect.
(f)
Absence of Certain Liabilities and
Events . There has been
no non-exempt prohibited transaction (within the meaning of
Section 406 of ERISA or Section 4975 of the Code) with
respect to any Plan. Neither the Seller nor any Seller
Subsidiary has incurred any liability for any excise tax arising
under Sections 4971 through 4980G of the Code that would have
a Seller Material Adverse Effect and, to the Seller’s
Knowledge, no fact or event exists that could give rise to any such
liability.
(g)
Plan Contributions
. All contributions, premiums or
payments required to be made with respect to any Plan by the Seller
and the Seller Subsidiaries have been made on or before their due
dates or within the applicable grace period for payment without
default.
(h)
Employment Contracts
. Neither the Seller nor any Seller
Subsidiary is a party to any Contracts for employment, severance,
consulting or other similar agreements with any employees,
consultants, officers or directors of the Seller or any of the
Seller Subsidiaries except as set forth on Section 2.10(h) of
the Seller Disclosure Schedule. Neither the Seller nor any
Seller Subsidiary is a party to any collective bargaining
agreements.
(i)
Effect of Agreement
. Except as disclosed in
Section 2.10(i) of the Seller Disclosure Schedule, the
consummation of the transactions contemplated by this Agreement
will not, either alone or in conjunction with another event,
entitle any current or former employee of the Seller or any Seller
Subsidiary to severance pay, unemployment compensation or any other
payment, including payments constituting “excess parachute
payments” within the meaning of Section 280G of the Code
or accelerate the time of payment or vesting or increase the
compensation due any such employee or former employee.
2.11
Registration Statement; Proxy
Statement/Prospectus . The
information supplied by the Seller for inclusion in the
Registration Statement will not, at the time the Registration
Statement (including any amendments or supplements thereto) is
declared effective by the SEC, contain any untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein
not misleading. The information supplied by the Seller for
inclusion in the proxy statement/prospectus to be sent to the
stockholders of the Seller in connection with the meeting of the
Seller’s stockholders to consider the Merger (the “
Seller Stockholders’
Meeting”) (such proxy statement/prospectus as amended or
supplemented is referred to herein as the “ Proxy Statement/Prospectus”)
will not, at the date the Proxy Statement/Prospectus (or any
amendment thereof or supplement thereto) is first mailed to
stockholders, at the time of the Seller Stockholders’ Meeting
and at the Effective Time, be false or misleading with respect to
any material fact required to be stated therein, or omit to state
any material fact required to be stated therein or necessary in
order to make the statements made therein, in the light of the
circumstances under which they are made, not misleading. If
at any time prior to the Effective Time any event relating to the
Seller, the Seller Subsidiaries or any of its or their Affiliates,
officers or directors is discovered by the Seller which should be
set forth in an amendment or supplement to the Registration
Statement or an amendment or supplement to the Proxy
Statement/Prospectus, the Seller shall promptly inform the Company.
The Proxy Statement/Prospectus will comply in all material
respects as to form with the requirements of the Securities Act and
the Exchange Act (to the extent applicable). Notwithstanding
the foregoing, the Seller makes no representation or warranty with
respect to any information about, or supplied or omitted by, the
Company which is contained in any of the foregoing
documents.
2.12
Title to Property
. The Seller and each of the Seller
Subsidiaries has good and marketable title to all of their
respective properties and assets, real and personal, free and clear
of all Liens, except for such minor imperfections of title, if any,
as do not materially detract from the value of or interfere with
the present use of the property affected thereby or which would not
have a Seller Material Adverse Effect; and all leases and licenses
pursuant to which the Seller or any of the Seller Subsidiaries
lease or license from other Persons material amounts of real or
personal property are in good standing, valid and effective in
accordance with their respective terms, and there is not, under any
of such leases and licenses, any existing material default or event
of default by the Seller or any Seller Subsidiary or, to the
Seller’s Knowledge, any counter-party thereto (or event which
with notice or lapse of time, or both, would constitute a material
default by the Seller or any Seller Subsidiary and in respect of
which the Seller or such Seller Subsidiary has not taken adequate
steps to prevent such a default from occurring). All of the
Seller’s and each of the Seller Subsidiaries’ buildings
and equipment in regular use have been reasonably maintained and
are in good and serviceable condition, reasonable wear and tear
excepted.
2.13
Environmental Matters
. To the Seller’s Knowledge:
(i) each of the Seller, the Seller Subsidiaries, properties
owned or operated by the Seller or the Seller Subsidiaries, the
Participation Facilities and the Loan Properties are and at all
times since they became properties owned or operated by the Seller
or the Seller Subsidiaries or, in the case of Participation
Facilities or Loan Properties, since they became Participation
Facilities or Loan Properties, as the case may be, have been in
compliance with all applicable Laws, Orders and Contractual
obligations relating to the environment, health, safety, natural
resources, wildlife or “Hazardous Materials” which are
hereinafter defined as chemicals, pollutants, contaminants, wastes,
toxic substances, compounds, products, solid, liquid, gas,
petroleum or other regulated substances or materials which are
hazardous, toxic or otherwise harmful to health, safety, natural
resources or the environment (“Environmental Laws”),
except for violations which would not have a Seller Material
Adverse Effect; (ii) during and prior to the period of (a) the
Seller’s or any of the Seller Subsidiaries’ ownership
or operation of any of their respective current properties,
(b) the Seller’s or any of the Seller
Subsidiaries’ participation in the management of any
Participation Facility or (c) the Seller’s or any of the
Seller Subsidiaries’ holding of a security interest in a Loan
Property, Hazardous Materials have not been generated, treated,
stored, transported, released or disposed of in, on, under, above,
from or affecting any such property, except where such release,
generation, treatment, storage, transportation or disposal would
not have a Seller Material Adverse Effect; (iii) there is no
asbestos or any material amount of ureaformaldehyde materials in or
on any property owned or operated by the Seller or any Seller
Subsidiaries or any Loan Property or Participation Facility and no
electrical transformers or capacitors, other than those owned by
public utility companies, on any such properties contain any
polychlorinated biphenyls; (iv) there are no underground or
aboveground storage tanks and there have never been any underground
or aboveground storage tanks located on, in or under any properties
currently or formerly owned or operated by the Seller or any Seller
Subsidiaries or any Loan Property or Participation Facility; (v)
neither the Seller nor any Seller Subsidiaries has received any
notice from any Governmental Authority or third Person notifying
the Seller or any Seller Subsidiaries of any Environmental Claim;
and (vi) there are no circumstances with respect to any properties
currently owned or operated by the Seller or any Seller
Subsidiaries or any Loan Property or Participation Facility that
could reasonably be anticipated (a) to form the basis for an
Environmental Claim against the Seller or any Seller Subsidiaries
or any properties currently or formerly owned or operated by the
Seller or any Seller Subsidiaries or any Loan Property or
Participation Facility that would have a Seller Material Adverse
Effect or (b) to cause any properties currently owned or operated
by the Seller or any Seller Subsidiaries or any Loan Property or
Participation Facility to be subject to any restrictions on
ownership, occupancy, use or transferability under any applicable
Environmental Law or require notification to or Consent of any
Governmental Authority or third Person pursuant to any
Environmental Law.
The following definitions apply for
purposes of this Section 2.13: (a) “ Loan Property” means any real property in
which the Seller or any Seller Subsidiary holds a security interest
and which has a fair market value greater than or equal to
$1,000,000 (based on the most recent appraisal or other information
available to the Seller or any Seller Subsidiary) and, where
required by the context, said term means the owner or operator of
such property; (b) “
Participation Facility” means any facility in which the
Seller or any Seller Subsidiary participates in the management and,
where required by the context, said term means the owner or
operator of such property; and (c) “ Environmental Claims” shall mean
any and all administrative, regulatory, judicial or private
Proceedings relating in any way to (i) any Environmental Law; (ii)
any Hazardous Material including, without limitation, any
abatements, removal, remedial, corrective or other response action
in connection with any Hazardous Material, Environmental Law or
Order of a Governmental Authority; or (iii) any actual or alleged
damage, injury, threat or harm to health, safety, natural
resources, wildlife or the environment which, in any case, would
have a Seller Material Adverse Effect.
2.14
Absence of Agreements
. Neither the Seller nor any Seller
Subsidiary is a party to any Contract or Order which restricts the
conduct of its business (including any Contract containing
covenants which limit the ability of the Seller or of any Seller
Subsidiary to compete in any line of business or with any Person or
which involve any restriction of the geographical area in which, or
method by which, the Seller or any Seller Subsidiary may carry on
its business (other than as may be required by applicable Law or
Governmental Authorities)), or in any manner relates to its capital
adequacy, credit policies or management, nor has the Seller been
advised that any Governmental Authority is contemplating issuing or
requesting (or is considering the appropriateness of issuing or
requesting) any such Contract or Order.
2.15
Taxes . The Seller and the Seller Subsidiaries have timely
filed all Tax Returns required to be
filed by them on or prior to the date of this Agreement (all such
Tax Returns being accurate and complete in all material respects),
and the Seller and the Seller Subsidiaries have timely paid and
discharged all Taxes reflected therein as due in connection with or
with respect to the filing of such Tax Returns, except such as are
not yet due or are being contested in good faith by appropriate
Proceedings and with respect to which the Seller is maintaining
reserves adequate for their payment. For purposes of this
Agreement, “ Tax” or
“Taxes” shall mean taxes, charges, fees, levies and
other governmental assessments and impositions of any kind payable
to any Governmental Authority, including, without limitation, (i)
income, franchise, profits, gross receipts, estimated, ad valorem,
value-added, sales, use, service, real or personal property,
capital stock, license, payroll, withholding, disability,
employment, social security, worker’s compensation,
unemployment compensation, utility, severance, production, excise,
stamp, occupation, premiums, windfall profits, transfer and gains
taxes, and (ii) interest, penalties and additions to tax imposed
with respect thereto; and “Tax Returns” shall mean
returns, reports and information statements with respect to Taxes
required to be filed with the IRS or any other Governmental
Authority, including, without limitation, consolidated, combined
and unitary tax returns. For the purposes of this
Section 2.15, references to the Seller and the Seller
Subsidiaries include former subsidiaries of the Seller for the
periods during which any such Persons were owned, directly or
indirectly, by the Seller. Neither the IRS nor any other
Governmental Authority is now asserting, either through audits,
administrative Proceedings or court Proceedings, any deficiency or
claim for additional Taxes from the Seller or the Seller
Subsidiaries. Neither the Seller nor any of the Seller
Subsidiaries has granted any extension of any statute of
limitations with respect to any period for the assessment of any
Tax. There are no material Tax Liens on any assets of the
Seller or any of the Seller Subsidiaries. Neither the Seller
nor any of the Seller Subsidiaries has received a ruling or entered
into an agreement with the IRS or any other Governmental Authority
with respect to Taxes that would have a Seller Material Adverse
Effect. Except as set forth in the Seller Disclosure
Schedule, no agreements relating to allocating or sharing of Taxes
exist among the Seller and the Seller Subsidiaries and no Tax
indemnities given by the Seller or the Seller Subsidiaries in
connection with a sale of stock or assets remain in effect.
Neither the Seller nor any of the Seller Subsidiaries is
required to include in income either (i) any amount in respect of
any adjustment under Section 481 of the Code or (ii) any
installment sale gain. Neither the Seller nor any of the
Seller Subsidiaries has made an election under Section 341(f)
of the Code. Except as set forth in the Seller Disclosure
Schedule, neither the Seller nor any of the Seller Subsidiaries
(i) is a member of an affiliated, consolidated, combined or
unitary group, other than one of which the Seller was the common
parent, or (ii) has any liability for the Taxes of any Person
(other than the Seller and the Seller Subsidiaries) under Treasury
Regulation Section 1-1502-6 (or any similar provision of state
or local Law) as a transferee or successor, by Contract or
otherwise.
2.16
Insurance . The Seller Disclosure Schedule lists all policies
of insurance of the Seller and the Seller Subsidiaries currently in
effect. Neither the Seller nor any of the Seller Subsidiaries
has any liability for unpaid premiums or premium adjustments not
properly reflected on the unaudited balance sheet of the Seller as
of September 30, 2005.
2.17
Brokers . No broker, finder or investment banker (other than
Stifel, Nicolaus & Company, Incorporated) is entitled to any
brokerage, finder’s or other fee or commission in connection
with the transactions contemplated by this Agreement based upon
arrangements made by or on behalf of the Seller. Prior to the
date of this Agreement, the Seller has furnished to the Company a
complete and correct copy of all agreements between the Seller and
Stifel, Nicolaus & Company, Incorporated pursuant to which such
firm would be entitled to any payment relating to the transactions
contemplated hereunder.
2.18
Tax Matters . Neither the Seller nor any Seller Subsidiary has
taken or agreed to take any action that would prevent the Merger
from qualifying as a reorganization under Section 368(a)(1)(A)
of the Code.
2.19
Seller Material Adverse
Effect . Since
December 31, 2004, there has not been any Effect that has had,
or to the Seller’s Knowledge would reasonably be expected to
have, a Seller Material Adverse Effect.
2.20
Material Contracts
. Except for loan or credit agreements
entered into by the Seller or any Seller Subsidiary as lender in
the ordinary course of business consistent with past practice or as
disclosed in Section 2.20 of the Seller Disclosure Schedule
(which may reference other Sections of such Schedule), neither the
Seller nor any Seller Subsidiary is a party to or obligated under
any Contract which is not terminable by the Seller or the Seller
Subsidiary without additional payment or penalty within sixty (60)
days of delivery of notice of such termination and obligates the
Seller or any Seller Subsidiary for payments or other consideration
with a value in excess of $50,000 in the aggr
